SAN DIEGUITO RIVER VALLEY REGIONAL OPEN SPACE PARK JOINT POWERS AUTHORITY
9:30 a.m. – 12:00 p.m. Friday, January 21, 2011 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 17, 2010 (there was no quorum at the November 19th meeting)
Executive Directors Report
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.
ACTION
1. Election of New Board Officers (page 3)
2. Workers Compensation Insurance (page 6)
3. Background Check Policy (page 35)
4. Potential Trail Parking/Staging Area in Del Mar (page 44)
5. Palomar Community College District Conservation Easement (page 48)
6. Escondido Union School District Mitigation Purchase Agreement (page 65)
1
INFORMATION
7. 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
8. Status Reports (Oral)
a. River Park Projects
9. 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.
10. Communications
Letter sent to California Fish and Game Commission 12/8/10 re MLPA (pg 93)
THE NEXT REGULAR JPA MEETING WILL BE MARCH 18, 2011.
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 to be made. The agenda and minutes are available at no cost on the San Dieguito River Park web site at www.sdrp.org.
2 Agenda Item 1 January 21, 2011 TO: JPA Board
FROM: Staff
SUBJECT: Election of Chair and Vice-Chair for 2011
RECOMMENDATION:
Approve Nominating Committee’s Recommendations for JPA Chair and Vice-Chair and Committee Assignments for 2011
SITUATION:
A. Summary and Recommendation
In accordance with JPA Board Rule #1, Election of JPA Board Officers, a nominating committee comprised of Tom Golich, Pam Slater-Price and Jim Cunningham was appointed by then-Chair Richard Earnest, with Board member Golich named as Chair of the committee. The nominating committee charge was to present to the Board of Directors a proposed slate which includes nominations for the two officers (Chair and Vice-Chair). The recommended slate of officers that the nominating committee is presenting for your Board’s review and approval is: Chair: Sherri Lightner, City of San Diego, and Vice-Chair: Olga Diaz, City of Escondido.
In addition, your Board appoints members annually to serve on the ad hoc Land Use Committee, Acquisition & Financing Strategies Committee, Budget/Administration/Policy Committee and Wetland Advisory Committee. The proposed list of committee assignments for 2011 is attached.
ALTERNATE ACTIONS
1. Approve the slate of officers recommended by the Nominating Committee. 2. Do not approve the Nominating Committee’s slate and elect a slate using an alternate procedure.
Respectfully submitted,
Dick Bobertz Executive Director
Attachments: 1. Board Policy re Election of Officers 2. Proposed Ad Hoc Committee Assignment Roster for 2011
3 Agenda Item 1 January 21, 2011 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.
ATTACHMENT 1 4 Agenda Item 1 January 21, 2011 JPA AD HOC COMMITTEES, 2011 Land Use Committee Don Mosier Pam Slater-Price Jim Cunningham Sherri Lightner 1st Alternate: Olga Diaz 2nd Alternate: Dave Roberts
Duties: 1) Review CAC and staff recommendations on pending projects, when warranted. Make project recommendations to JPA Board. 2) Consider planning and environmental issues that relate to the San Dieguito River Park.
Acquisition and Financing Strategies Committee Dave Roberts Pam Slater-Price Tom Golich Jim Cunningham 1st Alternate: Don Mosier 2nd Alternate: Dianne Jacob
Duties: 1) Review staff recommendations and advise staff on property negotiation. Make acquisition recommendations to JPA Board. 2). Serve as “Investment Committee”. Responsibilities as Investment Committee include review of internal and external endowment funds, preparation of annual analysis and report to the Board, and rebalancing of assets in internal fund as appropriate.
Budget/Administration/Policy Committee Sherri Lightner Olga Diaz Don Mosier Dave Roberts 1st Alternate: Jim Cunningham 2nd Alternate: Carl DeMaio
Duties: 1) Review draft budget and work program and present recommendations to JPA Board 2) Executive Director Performance Review 3) Make recommendations regarding standing or ad hoc committees and membership 4) Review and set JPA policies and by-laws
Wetlands Advisory Committee Pam Slater-Price Don Mosier Dave Roberts Tom Golich Jacqueline Winterer, Public Member Duties: Review and recommend policies and plans relating to the San Dieguito Lagoon Wetland Restoration Project
5 ATTACHMENT 2 Agenda Item 2 January 21, 2011
TO: JPA Board
FROM: Staff
SUBJECT: Workers Compensation Insurance
RECOMMENDATION:
Adopt attached resolutions necessary to join the Special District Risk Management Authority for Workers Compensation insurance coverage.
SITUATION:
Staff has been contacted by the County Human Resources Department informing us that the County, which has been providing the JPA’s Workers Compensation Insurance for the last six years under its own self-insurance policy, can no longer do it. County Counsel has determined that it is not legal for the County to provide Workers Compensation Insurance for another entity and the JPA was asked to find another carrier. For the last six years the County has assessed a premium payment which is deducted biweekly from the JPA’s funds along with all other payroll deductions. Please see the attached letter from the County Human Resources Department (Attachment 1), and note that our current coverage will expire on January 31st.
We immediately obtained two quotes: one from the Special District Risk Management Authority (SDRMA), which quoted $19,500 per year, and one from the State Workers Compensation Fund, which quoted $36,000 per year. These numbers far exceed the amount your Board budgeted for Workers Compensation insurance in FY 2010/11, which is $3,961 for coverage by the County. .
JPA Counsel Wayne Brechtel spoke with County Counsel Dennis Floyd. Mr. Brechtel determined that the County Counsel’s opinion was correct that the current arrangement is inappropriate, and that another carrier must be secured.
The least cost alternative is to join the SDRMA. In order for the JPA to become a member of the SDRMA (another JPA itself) and participate in its workers' compensation program, the JPA needs to complete and return five documents:
(1) A Resolution from the Board of the JPA authorizing the San Dieguito River Park to join the SDRMA; (2) Execution of the SDRMA Joint Powers Agreement; (3) A Resolution from the Board of the JPA authorizing the San Dieguito River Park to apply to the California Director of Industrial Relations (DIR) for a Certificate of Consent to Self-Insure;
6 Agenda Item 2 January 21, 2011
(4) A completed application for a DIR Certificate of Consent to Self-Insure; and (5) A completed application for membership in the California Special District Association (CSDA).
Items (1) & (3) are Resolutions that are attached.
Staff will complete and submit Items (2), (4), and (5) following execution of the above two resolutions.
Staff recommends that your Board adopt the attached resolutions which will enable the JPA to receive Workers Compensation insurance coverage from the Special District Risk Management Authority.
CAC RECOMMENDATION:
This item has not been reviewed by the CAC.
FISCAL IMPACT
This action will be an unbudgeted expense in FY 2010/11 of $7,750.
ALTERNATIVES
1. Adopt resolutions necessary to join the Special District Risk Management Authority. 2. Do not adopt resolutions necessary to join the Special District Risk Management Authority and give staff other direction.
RECOMMENDATION:
Adopt attached resolutions necessary to join the Special District Risk Management Authority for Workers Compensation insurance coverage.
Respectfully submitted,
Dick Bobertz Executive Director
7 Agenda Item 2 January 21, 2011
RESOLUTION NO. ______
A RESOLUTION OF THE BOARD OF DIRECTORS OF THE SAN DIEGUITO RIVER VALLEY REGIONAL OPEN SPACE PARK JOINT POWERS AUTHORITY APPROVING THE FORM OF AND AUTHORIZING THE EXECUTION OF A SIXTH AMENDED AND RESTATED JOINT POWERS AGREEMENT AND AUTHORIZING PARTICIPATION IN THE SPECIAL DISTRICT RISK MANAGEMENT AUTHORITY WORKERS’ COMPENSATION PROGRAM
WHEREAS, the San Dieguito River Valley Regional Open Space Park Joint Powers Authority (the River Valley JPA”), a joint powers authority duly organized and existing in accordance with California Government Code Section 6500 et. seq., has determined that it is in the best interest and to the advantage of the Agency to participate for at least three full years in the workers’ compensation program offered by the Special District Risk Management Authority (the “Authority”); and
WHEREAS, California Government Code Section 6500 et seq., provides that two or more public agencies may by agreement jointly exercise any power common to the contracting parties; and
WHEREAS, Special District Risk Management Authority was formed in 1986 in accordance with the provisions of California Government Code 6500 et seq., for the purpose of providing its members with risk financing and risk management programs; and
WHEREAS, California Government Code Section 990.4 provides that a local public entity may self-insure, purchase insurance through an authorized carrier, or purchase insurance through a surplus lines broker, or any combination of these; and
WHEREAS, participation in Special District Risk Management Authority programs requires the River Valley JPA to join the Authority as a participating member by approving, executing, and entering into a Sixth Amended and Restated Joint Powers Agreement (the “Amended and Restated JPA Agreement”); which states the purpose and powers of the Authority; and
WHEREAS, all acts, conditions and things required by the laws of the State of California to exist, to have happened and to have been performed precedent to and in connection with the consummation of the transactions authorized hereby do exist, have happened and have been performed in regular and due time, form and manner as required by law, and the River Valley JPA is now duly authorized and empowered, pursuant to each and every requirement of law, to consummate such transactions for the purpose, in the manner and upon the terms herein provided.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE RIVER VALLEY JPA AS FOLLOWS:
Section 1. Findings. The Board of Directors of the River Valley JPA hereby specifically finds
ATTACHMENT 1 8 Agenda Item 2 January 21, 2011
and determines that the actions authorized hereby relate to the public affairs of the River Valley JPA.
Section 2. Approval and Execution of the Sixth Amended and Restated JPA Agreement. The Amended and Restated JPA Agreement, proposed to be executed and entered into by and between the River Valley JPA and members of the Special District Risk Management Authority, in the form presented at this meeting and on file with the River Valley JPA Secretary, is hereby approved. The Board of Directors of the River Valley JPA and/or Authorized Officers (“The Authorized Officers”) are hereby authorized and directed, for and in the name and on behalf of the River Valley JPA, to execute and deliver to the Authority the Amended and Restated JPA Agreement in substantially said form, with such changes therein as such officers may require or approve, such approval to be conclusively evidenced by the execution and delivery thereof.
Section 3. Program Participation. The Board of Directors of the River Valley JPA approves participating for three full program years in Special District Risk Management Authority Workers’ Compensation Program.
Section 4. Other Actions. The Authorized Officers of the River Valley JPA are each hereby authorized and directed to execute and deliver any and all documents which are necessary in order to consummate the transactions authorized hereby and all such actions heretofore taken by such officers are hereby ratified, confirmed and approved.
Section 5. Effective Date. This resolution shall take effect immediately upon its passage.
PASSED AND ADOPTED this _____ day of ______, 20____ by the following vote:
AYES: NOES: ABSENT:
Name
Title
Agency Secretary
9
SIXTH AMENDED JOINT POWERS AGREEMENT
RELATING TO THE
SPECIAL DISTRICT RISK MANAGEMENT AUTHORITY
Adopted August 1, 1986 1st Amended February 5, 1988 2nd Amended March 31, 1990 3rd Amended July 1, 1993 4th Amended February 9, 1998 5th Amended and Restated - Approved March 24, 2003 - Effective July 1, 2003 6th Amended October 2, 2007
10 ATTACHMENT 2 JOINT POWERS AGREEMENT - TABLE OF CONTENTS
Article 1. Definitions ...... 2 Article 2. Purposes...... 3 Article 3. Parties to Agreement...... 4 Article 4. Term of Agreement...... 4 Article 5. Creation of Authority...... 4 Article 6. Powers of Authority...... 4 Article 7. Board of Directors ...... 6 Article 8. Compliance with the Brown Act ...... 6 Article 9. Powers of the Board of Directors ...... 6 Article 10. Officers of the Authority...... 8 Article 11. Provision for Bylaws ...... 8 Article 12. [Reserved]...... 8 Article 13. Coverage Programs...... 9 Article 14. Implementation of the Programs...... 9 Article 15. Accounts And Records ...... 9 Article 16. Services Provided by the Authority...... 10 Article 17. Responsibilities of Members ...... 10 Article 18. New Members...... 11 Article 19. Withdrawal...... 11 Article 20. Involuntary Termination...... 12 Article 21. Effect of Withdrawal or Involuntary Termination...... 13 Article 22. Termination and Distribution; Assignment ...... 13 Article 23. Enforcement...... 14 Article 24. Nonliability of Directors, Officers and Employees ...... 14 Article 25. Provisions Relating to CSDA ...... 14 Article 26. Notices ...... 15 Article 27. Amendment...... 15 Article 28. Prohibition Against Assignment...... 15 Article 29. Agreement Complete ...... 15 Article 30. Counterparts...... 15 Article 31. California Law ...... 15 Article 32. Severability ...... 15 Article 33. Effective Date ...... 15
SDRMA 6th Amended JPA Effective October 2, 2007 11
SIXTH AMENDED JOINT POWERS AGREEMENT RELATING TO THE SPECIAL DISTRICT RISK MANAGEMENT AUTHORITY
THIS SIXTH AMENDED JOINT POWERS AGREEMENT (the “Agreement”) is made and entered into by and among the public agencies (the “Members”) organized and existing under the laws of the State of California, which are signatories to this Agreement.
RECITALS
WHEREAS, California Government Code Section 6500 et seq. (the “Act”) provides that two or more public agencies may by agreement jointly exercise any power common to the contracting parties; and
WHEREAS, California Labor Code Section 3700(c) permits pooling by public agencies of self insurance for Workers’ Compensation liability; and
WHEREAS, California Government Code Section 990.4 provides that a local public entity may self-insure, purchase insurance through an authorized carrier, purchase insurance through a surplus line broker, or any combination of these; and
WHEREAS, California Government Code Section 990.8 provides that two or more local entities may, by a joint powers agreement, provide insurance for any purpose by any one or more of the methods specified in Government Code Section 990.4; and
WHEREAS, the parties to this Agreement desire to join together for the purposes set forth in Article 2 hereof, including establishing pools for self-insured losses and purchasing Excess or Re-Insurance and administrative services in connection with joint protection programs (the “Programs”) for members of the California Special Districts Association (“CSDA”); and
WHEREAS, it appears economically feasible and practical for the parties to this Agreement to do so; and
WHEREAS, the Members have previously executed that certain Fifth Amended and Restated Joint Powers Agreement (the “Original JPA”), which Original JPA the Members desire to amend and restate by this Agreement; provided that such amendment and restatement shall not affect the existence of the Authority; and
WHEREAS, CSDA exists to assist and promote special districts, and has been responsible for the original creation of the Special District Risk Management Authority (“Authority”) and Special District Workers Compensation Authority (“SDWCA”), and determined the consolidation of SDWCA and the Authority on July 1, 2003 was in the best interests of special districts and other public agencies throughout the State.
SDRMA 6th Amended JPA 1 Effective October 2, 2007 12 NOW THEREFORE, for and in consideration of all of the mutual benefits, covenants and agreements contained herein, the parties hereto agree as follows:
Article 1. Definitions. The following definitions shall apply to the provisions of this agreement:
“Act” means Articles 1 through 4 (commencing with Section 6500) of Chapter 5, Division 7, Title 1 of the California Government Code, as amended or supplemented.
“Alliance Executive Council” means the council organized pursuant to the MOU.
“Assessment” means an additional amount, in addition to the Member’s or Former Member’s original contribution, which the Board of Directors determines in accordance herewith and/or with the Bylaws that a Member or Former Member owes on account of its participation in a Program for a given Program year.
“Authority” shall mean the Special District Risk Management Authority created by the original version of this Agreement.
“Board of Directors” or “Board” shall mean the governing body of the Authority.
“Bylaws” means the Bylaws of the Authority adopted by the Board of Directors, as they may be amended from time to time.
“Chief Executive Officer” shall mean that employee of the Authority who is so appointed by the Board of Directors.
“Claim” shall mean a demand made by or against a Member or Former Member which is or may be covered by one of the Programs approved by the Board of Directors.
“Contribution” means the amount determined by the Board of Directors to be the appropriate sum which a Member should pay at the commencement of or during the Program Year in exchange for the benefits provided by the Program.
“Coverage Documents” shall mean the Declarations, Memorandum of Coverages, Coverage Agreements, Endorsements, Policies of Insurance or any other documents that provide the terms, conditions, limits and exclusions of coverage afforded by a Program.
“CSDA” means the California Special Districts Association.
“District” shall mean a special district, public agency or public entity within the State of California which is both a Member of the CSDA and a signatory to this Agreement.
“Duly Constituted Board Meeting” shall mean any Board of Directors meeting noticed and held in the required manner and at which a Quorum was determined to be present at the beginning of the meeting.
SDRMA 6th Amended JPA 2 Effective October 2, 2007 13 “Estimated Contribution” means the amount which the Board of Directors estimates will be the appropriate contribution for a Member’s participation in a Program for a Program Year.
“Excess or Re-Insurance” shall mean that insurance which may be purchased on behalf of the Authority and/or the Members to protect the funds of the Members or Former Members against catastrophic losses or an unusual frequency of losses during a single year in excess of the self-insurance retention maintained by the Authority.
“Fiscal Year” shall mean that period of twelve months which is established as the fiscal year of the Authority.
“Former Member” shall mean a District which was a signatory to the Agreement but which has withdrawn from, or been involuntarily terminated from participating in, the Authority.
“Joint Protection Program” means a Program offered by the Authority, separate and distinct from other Programs, wherein Members will jointly pool their losses and claims, jointly purchase Excess or Re-Insurance and administrative and other services, including claims adjusting, data processing, risk management consulting, loss prevention, legal and related services.
“Member” shall mean a signatory to this Agreement, which is qualified as a Member under the provisions of this Agreement and the Bylaws.
“MOU” means the Memorandum of Understanding - Alliance Executive Council, dated as of September 20, 2001, among the Authority, CSDA, the CSDA Finance Corporation and SDWCA.
“Program” or “Programs” means the specific type of protection plan as set forth in the terms, conditions and exclusions of the Coverage Documents for self-insured losses, and the purchasing of Excess or Re-Insurance and administrative services.
“Program Year” shall mean a period of time, usually 12 months, determined by the Board of Directors, in which a Program is in effect.
“Retained Earnings,” as used herein, shall mean an equity account reflecting the accumulated earnings of a Joint Protection Program.
“SDWCA” means the Special Districts Workers Compensation Authority, and its successors or assigns.
Article 2. Purposes. This Agreement is entered into by the Members pursuant to the provisions of California Government Code section 990, 990.4, 990.8 and 6500 et seq. in order to provide, subject to the provisions of the Coverage Documents, economical public liability and workers’ compensation coverage, or coverage for other risks which the Board of Directors may determine.
Additional purposes are to reduce the amount and frequency of losses, and to decrease the cost incurred by Members in the handling and litigation of claims. These purposes shall be
SDRMA 6th Amended JPA 3 Effective October 2, 2007 14 accomplished through the exercise of the powers of such Members jointly in the creation of a separate entity, the Special District Risk Management Authority (the “Authority”), to establish and administer Programs as set forth herein and in the Bylaws.
It is also the purpose of this Agreement to provide, to the extent permitted by law, for the inclusion, at a subsequent date, and subject to approval by the Board of Directors, of such additional Members organized and existing under the laws of the State of California as may desire to become parties to the Agreement and Members of the Authority.
Article 3. Parties to Agreement. Each party to this Agreement certifies that it intends to and does contract with all other parties who are signatories to this Agreement and, in addition, with such other parties as may later be added as parties to and signatories of this Agreement pursuant to Article 18. Each party to this Agreement also certifies that the withdrawal from or cancellation of membership by any Member, pursuant to Articles 19 and 20 or otherwise, shall not affect this Agreement nor such party’s intent, as described above, to contract with the other remaining parties to the Agreement.
Article 4. Term of Agreement. This Agreement shall become effective as to existing Members of the Authority as set forth in Article 33 hereof. This Agreement shall continue thereafter until terminated as hereinafter provided. This Agreement shall become effective as to each new Member upon: (i) approval of its membership by the Board of Directors, (ii) the execution of this Agreement by the Member, and (iii) upon payment by the Member of its initial Contribution for a Program. Any subsequent amendments to the Agreement shall be in accordance with Article 27 of this Agreement.
Article 5. Creation of Authority. Pursuant to the Act, there is hereby created a public entity separate and apart from the parties hereto, to be known as the Special District Risk Management Authority. Pursuant to Section 6508.1 of the Act, the debts, liabilities and obligations of the Authority, including but not limited to, debts, liabilities and obligations of any of the Programs shall not constitute debts, liabilities or obligations of any party to this Agreement or to any Member or Former Member.
The Authority is not an insurer, and the coverage programs offered by the Authority do not provide insurance, but instead provide for pooled joint protection programs among the members of the Authority. The Joint Protection Programs offered by the Authority constitute negotiated agreements among the Members which are to be interpreted according to the principles of contract law, giving full effect to the intent of the Members, acting through the Board of Directors in establishing the Programs.
Article 6. Powers of Authority. (a) The Authority shall have all of the powers common to Members and is hereby authorized to do all acts necessary for the exercise of said common powers, including, but not limited to, any or all of the following:
(1) to make and enter into contracts, including the power to accept the assignment of contracts or other obligations which relate to the purposes of the Authority, or which were entered into by a Member or Former
SDRMA 6th Amended JPA 4 Effective October 2, 2007 15 Member prior to joining the Authority, and to make claims, acquire assets and incur liabilities;
(2) to accept an assignment from SDWCA of all its assets, obligations and liabilities prior to the dissolution of SDWCA (including claims and contracts in existence prior to such dissolution) in order to benefit the Members or Former Members participating in the SDWCA workers compensation program; provided, that except for the fair and equitable allocation of administrative and overhead expenses, funds from such assignment shall not be co-mingled and shall be separately accounted for as provided for in this Agreement and the Bylaws.
(3) to incur debts, liabilities, or other obligations, including those which are not debts, liabilities or obligations of the Members or Former Members, or any of them;
(4) to charge and collect Contributions and Assessments from Members or Former Members for participation in Programs;
(5) to receive grants and donations of property, funds, services and other forms of assistance from persons, firms, corporations and governmental entities;
(6) to acquire, hold, lease or dispose of property, contributions and donations of property and other forms of assistance from persons, firms, corporations and governmental entities
(7) to acquire, hold or dispose of funds, services, donations and other forms of assistance from persons, firms, corporations and governmental entities;
(8) to employ agents and employees, and/or to contract for such services;
(9) to incur debts, liabilities or other obligations to finance the Programs and any other powers available to the Authority under Article 2 or Article 4 of the Act;
(10) to enter into agreements for the creation of separate public entities and agencies pursuant to the Act;
(11) to sue and be sued in its own name;
(12) to exercise all powers necessary and proper to carry out the terms and provisions of this Agreement (including the provision of all other appropriate ancillary coverages for the benefit of the Members or Former Members), or otherwise authorized by law or the Act; and
(13) to exercise all powers and perform all acts as otherwise provided for in the Bylaws.
SDRMA 6th Amended JPA 5 Effective October 2, 2007 16 (b) Said powers shall be exercised pursuant to the terms hereof, in the manner provided by law and in accordance with Section 6509 of the Act. The foregoing powers shall be subject to the restrictions upon the manner of exercising such powers pertaining to the Member or Former Member designated in the Bylaws.
Article 7. Board of Directors. Subject to the limitations of this Agreement and the laws of the State of California, the powers of this Authority shall be vested in and exercised by, and its property controlled and its affairs conducted by, the Board of the Authority, which is hereby established and designated as the agency to administer this Agreement pursuant to Section 6506 of the Act. The powers of the Authority shall be exercised through the Board of Directors, who may, from time to time, adopt and modify Bylaws and other rules and regulations for that purpose and for the conduct of its meetings as it may deem proper. The officers of the Board shall be as set forth in the Bylaws.
So long as the MOU has not been terminated or the Authority has not withdrawn from the MOU, the Board of Directors shall be composed of seven (7) directors elected by the Member entities who have executed the current operative Agreement and are participating in a Joint Protection Program. The terms of directors, procedures for election of directors, procedures for meetings and provisions for reimbursement of Director expenses shall be as set forth in the Bylaws. Each Member of the Board of Directors shall have one vote. Each Member of the Board shall serve as set forth in the Bylaws.
So long as the Authority is a participant in the MOU, the Board of Directors of the Authority shall appoint three (3) members of its board to serve as members of the Alliance Executive Council. No member of the Board of Directors of the Authority shall serve as a director on any other board of directors of an entity or organization that is a signatory to the MOU during the term of the MOU. In the event a director is elected to such a board, that director shall immediately resign from the Board of Directors of the Authority.
In the event SDRMA withdraws from the MOU, the Board of Directors of the Authority shall consist of those seven (7) Directors who hold seats on the Authority’s Board of Directors at the time of the withdrawal and who were duly appointed by the Board, or elected or re-elected by the Member entities of SDRMA plus the additional directors appointed by CSDA as provided in Article 25.
Article 8. Compliance with the Brown Act. All meetings of the Board, including, without limitation, regular, adjourned regular and special meetings, shall be called, noticed, held and conducted in accordance with the provisions of the Ralph M. Brown Act, California Government Code Section 54950 et seq.
Article 9. Powers of the Board of Directors. The Board of Directors shall have such powers and functions as provided for pursuant to this Agreement and the Bylaws and such additional powers as necessary or appropriate to fulfill the purposes of this Agreement and the Bylaws, including, but not limited to, the following:
(a) to determine details of and select the Program or Programs to be offered, from time to time, by the Authority;
SDRMA 6th Amended JPA 6 Effective October 2, 2007 17 (b) to determine and select all insurance, including Excess or Re-insurance, necessary to carry out the programs of the Authority;
(c) to contract for, develop or provide through its own employees various services for the Authority;
(d) to prepare or cause to be prepared the operating budget of the Authority for each fiscal year;
(e) to receive and act upon reports of committees and from the Chief Executive Officer;
(f) to appoint staff, including a Chief Executive Officer, and employ such persons as the Board of Directors deems necessary for the administration of this Authority;
(g) to direct, subject to the terms and conditions of the Coverage Documents, the payment, adjustment, and defense of all claims involving a Member during their period of membership in and coverage under a Program;
(h) to fix and collect Contributions and Assessments for participation in the Programs;
(i) to expend funds of the Authority for the purpose of carrying out the provisions of the Agreement and the Bylaws as they now exist or may be hereafter amended;
(j) to purchase excess insurance, liability insurance, stop loss insurance, officers and directors liability insurance, and such other insurance as the Authority may deem necessary or proper to protect the Program, employees of the Authority and employees of the Members;
(k) to defend, pay, compromise, adjust and settle all claims as provided for in the Coverage Documents;
(l) to obtain a fidelity bond in such amount as the Board of Directors may determine for any person or persons who have charge of or the authority to expend funds for the Authority;
(m) to establish policies and procedures for the operation of the Authority and the Programs;
(n) to engage, retain, and discharge agents, representatives, firms, or other organizations as the Board of Directors deems necessary for the administration of the Authority;
(o) to enter into any and all contracts or agreements necessary or appropriate to carry out the purposes and functions of the Authority;
SDRMA 6th Amended JPA 7 Effective October 2, 2007 18 (p) to acquire, hold, lease, manage and dispose of, as provided by law, any and all property necessary or appropriate to carry out the purposes and functions of the Authority;
(q) to transact any other business which is within the powers of the Board of Directors;
(r) to invest funds on hand in a manner authorized by law, the Agreement and the Bylaws;
(s) to provide financial administration, claims management services, legal representations, safety engineering, actuarial services, and other services necessary or proper to carry out the purposes of the Authority either through its own employees or contracts with one or more third parties;
(t) to exercise general supervisory and policy control over the Chief Executive Officer;
(u) to establish committees and sub-committees as it deems necessary to best serve the interests of the Authority; and
(v) to have such other powers and functions as are provided for pursuant to the Act, this Agreement or necessary or appropriate to fulfill the purpose of this Agreement and the Bylaws.
Article 10. Officers of the Authority. The officers of the Authority shall be as set forth in the Bylaws. The Board may elect or authorize the appointment of such other officers than those described in the Bylaws as the business of the Authority may require, each of whom shall hold office for such period, have such authority and perform such duties as are provided in this Agreement, or as the Board, from time to time, may authorize or determine.
Any officer may be removed, either with or without cause, by a majority of the directors of the Board at any regular or special meeting of the Board. Should a vacancy occur in any office as a result of death, resignation, removal, disqualification or any other cause, the Board may delegate the powers and duties of such office to any officers or to any Members of the Board until such time as a successor for said office has been appointed.
Article 11. Provision for Bylaws. The Board shall promulgate Bylaws to govern the day-to-day operations of the Authority. The Board may amend the Bylaws from time to time as it deems necessary, and as provided in the Bylaws. Each Member shall receive a copy of any Bylaws and agrees to be bound by and to comply with all of the terms and conditions of the Bylaws as they exist or as they may be modified. The Bylaws shall be consistent with the terms of this Agreement. In the event any provision of the bylaws conflicts with a provision of this Agreement, the provision contained in this Agreement shall control.
Article 12. [Reserved].
SDRMA 6th Amended JPA 8 Effective October 2, 2007 19 Article 13. Coverage Programs.
(a) The Authority shall maintain such types and levels of coverage for Programs as determined by the Board of Directors. Such coverage may provide for binding arbitration before an independent arbitration panel of any disputes concerning coverage between the Authority and a Member.
(b) The coverage afforded under one or more Programs may include protection for general liability, auto liability, property, boiler and machinery, public officials errors and omissions, employment practices, employee benefits liability coverage, employee dishonesty coverage, public officials personal liability coverage and workers’ compensation, as well as coverage for other risks which the Board of Directors may determine to be advisable. More than one type of coverage may be afforded under a single Program.
(c) The Board of Directors may arrange for group policies to be issued for Members, their board members and employees interested in obtaining additional coverage, at an appropriate additional cost to those participating Members.
(d) The Board of Directors may arrange for the purchase of Excess or Re-Insurance. The Authority shall not be liable to any Member or to any other person or organization if such excess or reinsurance policies are terminated, canceled or non-renewed without prior notice to one or more Members, or if there is a reduction in the type of coverage afforded under a program by reason of any change in coverage in a succeeding excess or reinsurance policy, even if such reduction occurs without prior notice to one or more Members.
Article 14. Implementation of the Programs. The Board of Directors shall establish the coverage afforded by each Program, the amount of Contributions and Assessments, the precise cost allocation plans and formulas, provide for the handling of claims, and specify the amounts and types of Excess or Re-Insurance to be procured. The Contributions and Assessments for each Program shall be determined by the Board of Directors as set forth herein, in the Bylaws or in the operating policies established for a Program.
Article 15. Accounts And Records.
(a) Annual Budget. The Authority shall, pursuant to the Bylaws, annually adopt an operating budget, including budgets for each Joint Protection Program.
(b) Funds and Accounts. The Authority shall establish and maintain such funds and accounts as required by the Board of Directors and as required by generally accepted accounting principles, including separate funds and accounts for each Program, including Joint Protection Programs. Books and records of the Authority shall be open to any inspection at all reasonable times by authorized representatives of Members, or as otherwise required by law.
(c) Investments. Subject to the applicable provisions of any indenture or resolution providing for the investment of moneys held thereunder, the Authority shall have the power to invest any money in the treasury that is not required for the immediate necessities of the Authority, as the Board determines is advisable, in the same manner as local agencies pursuant to
SDRMA 6th Amended JPA 9 Effective October 2, 2007 20 California Government Code Sections 53601 et seq. (as such provisions may be amended or supplemented).
(d) No Commingling. The funds, reserves and accounts of each Program shall not be commingled and shall be accounted for separately; provided, however, that administration and overhead expenses of the Authority not related to a specific Program or Programs may be fairly and equitably allocated among Programs as determined by the Board of Directors. Investments and cash accounts may be combined for administrative convenience, but a separate accounting shall be made for balances of individual funds and Program revenues and expenses.
(e) Annual Audit. The Board shall provide for a certified, annual audit of the accounts and records of the Authority, in the manner set forth in the Bylaws.
Article 16. Services Provided by the Authority. The Authority may provide, at the sole discretion of the Board of Directors, the following services in connection with this Agreement:
(a) to provide or procure coverage, including but not limited to self-insurance funds and commercial insurance, as well as excess coverage, re-insurance and umbrella insurance, by negotiation or bid, and purchase;
(b) to assist Members in obtaining insurance coverage for risks not included within the coverage of the Authority;
(c) to assist risk managers with the implementation of risk management functions as it relates to risks covered by the Programs in which the Member participates;
(d) to provide loss prevention and safety consulting services to Members;
(e) to provide claims adjusting and subrogation services for Claims covered by the Programs;
(f) to provide loss analysis and control by the use of statistical analysis, data processing, and record and file keeping services, in order to identify high exposure operations and to evaluate proper levels of self-retention and deductibles;
(g) to review Member contracts to determine sufficiency of indemnity and insurance provisions when requested;
(h) to conduct risk management audits relating to the participation of Members in the Programs; and
(i) to provide such other services as deemed appropriate by the Board of Directors.
Article 17. Responsibilities of Members. Members or Former Members shall have the following responsibilities, which shall survive the withdrawal from, or involuntary termination of participation in, this Agreement:
SDRMA 6th Amended JPA 10 Effective October 2, 2007 21 (a) Each Member shall designate a person to be responsible for the risk management function within that Member and to serve as a liaison between the Member and the Authority as to risk management.
(b) Each Member shall maintain an active safety officer and/or committee, and shall consider all recommendations of the Authority concerning unsafe practices and/or hazard mitigation.
(c) Each Member shall maintain its own set of records, including a loss log, in all categories of risk covered by each Program in which it participates to insure accuracy of the Authority’s loss reporting system, unless it is no longer deemed necessary by the Board of Directors.
(d) Each Member shall pay its Contribution, and any adjustments thereto, and any Assessments within the specified period set forth in the invoice, or as otherwise may be set forth herein or in the Bylaws. After withdrawal or termination, each Former Member or its successor shall pay promptly to the Authority its share of any additional Contribution, adjustments or Assessments, if any, as required of it by the Board of Directors under Article 21 or 22 of this Agreement or the Bylaws.
(e) Each Member or Former Member shall provide the Authority with such other information or assistance as may be necessary for the Authority to carry out the Programs under this Agreement in which the Member or Former Member participates or has participated.
(f) Each Member or Former Member shall in any and all ways cooperate with and assist the Authority and any insurer of the Authority, in all matters relating to this Agreement and covered claims.
(g) Each Member or Former Member will comply with all Bylaws, rules and regulations adopted by the Board of Directors.
(h) Each Member shall remain a member in good standing of CSDA.
Article 18. New Members. The Authority shall allow entry into its Programs of new Members only upon approval of the Board, with any conditions or limitations as the Board deems appropriate. In order to become a Member and remain a Member, any District must be a member in good standing of CSDA, shall participate in at least one (1) Joint Protection Program and shall be authorized to exercise the common powers set forth in this Agreement.
Article 19. Withdrawal.
(A) Any Member may voluntarily withdraw from this Agreement only at the end of any applicable Program Year and only if:
(i) The Member has been a signatory to this Agreement for not less than three (3) full Program Years as of the date of the proposed withdrawal;
SDRMA 6th Amended JPA 11 Effective October 2, 2007 22 (ii) The Member submits a written withdrawal notification in accordance with the Bylaws;
(iii) In order to withdraw from the agreement the member must have completed the three (3) full program year participation requirement for each Joint Protection Program the member participated in at the time of withdrawal.
(B) Any Member may voluntarily withdraw from any particular Joint Protection Program; and
(i) It has participated in such Joint Protection Program for at least three (3) full Program Years;
(ii) it is a participant in another Joint Protection Program; and
(iii) the Member submits a written withdrawal notification in accordance with the Bylaws.
(C) In the event that the three year participation requirement as required by (A)(i) or (B)(i) as to any such Joint Protection Program above has not been met, for each Program the withdrawing Member participated in at the time of its withdrawal, for less than three years such withdrawing member shall be obligated to pay all Contributions and Assessments as if that Member had remained in each such Program for the full three years from the inception of its membership in the Authority.
(D) In the event that the notice is not provided as required by (A)(ii) or (B)(iii) above, any such withdrawing Member shall, with respect to each Program the Member participated in, be obligated to pay any and all Contributions and Assessments for the next full Program Year.
(E) A Member may withdraw from any Program (other than a Joint Protection Program) as provided by the Coverage Documents relating to such Program.
(F) Withdrawal of one or more Members shall not serve to terminate this Agreement.
(G) A Member may not withdraw as a party to this Agreement until it has withdrawn, as provided in the Bylaws from all of the Programs of the Authority.
Article 20. Involuntary Termination.
(a) Notwithstanding the provisions of Article 19, the Authority shall have the right to involuntarily terminate any Member’s participation in any Program, or terminate membership in the Authority, as provided in the Bylaws.
(b) Notwithstanding any other provisions of this Agreement, the participation of any Member of the Authority, including participation in any of the Authority’s Programs, may be involuntarily terminated at the discretion of the Board of Directors whenever such Member is dissolved, consolidated, merged or annexed. A reasonable time shall be afforded, in the
SDRMA 6th Amended JPA 12 Effective October 2, 2007 23 discretion of the Board of Directors, to place coverage elsewhere. Any such involuntary termination shall not relieve the Member or Former Member of its responsibilities as provided for in Articles 17 or 21.
Article 21. Effect of Withdrawal or Involuntary Termination. The withdrawal from or involuntary termination of any Member from this Agreement shall not terminate this Agreement, and such Member, by withdrawing or being involuntarily terminated, shall not be entitled to payment, return or refund of any Contribution, Assessment, consideration, or other property paid, or donated by the Member to the Authority, or to any return of any loss reserve contribution, or to any distribution of assets (except payment of any Retained Earnings, as set forth in the following paragraph).
The withdrawal from or involuntary termination of any Member after the effective date of any Program shall not terminate its responsibility to pay its unpaid Contribution adjustments, or Assessments to such Program. The Board of Directors shall determine the final amount due from the Member or Former Member by way of contribution or assessments, if any, or any credit due on account thereof, to the Member or Former Member for the period of its participation. Such determination shall not be made by the Board of Directors until all Claims, or other unpaid liabilities, have been finally resolved. In connection with this determination, the Board of Directors may exercise similar powers to those provided for in Article 22(b) of this Agreement, or as otherwise set forth in the Bylaws. Upon such withdrawal from or cancellation of participation in any Program by any Member, said Member shall be entitled to receive its pro rata share of any Retained Earnings declared by the Board of Directors after the date of said Member withdraws or is involuntarily terminated.
Article 22. Termination and Distribution; Assignment.
(a) This Agreement may be terminated any time with the written consent of two- thirds of the voting Members; provided, however, that this Agreement and the Authority shall continue to exist for the purpose of disposing of all claims, distribution of net assets and all other functions necessary to wind up the affairs of the Authority.
(b) The Board of Directors is vested with all powers of the Authority for the purpose of winding up and dissolving the business affairs of the Authority. These powers shall include the power to require Members or Former Members, including those which were signatory hereto at the time the subject Claims arose or was/were incurred, to pay any Assessment in accordance with loss allocation formulas for final disposition of all Claims and losses covered by this Agreement or the Bylaws. A Member or Former Member’s Assessment shall be determined as set forth in the Bylaws or the applicable Coverage Documents.
(c) Upon termination of a Program, all net assets of such Program other than Retained Earnings shall be distributed only among the Members that are participating in such Program at the time of termination, in accordance with and proportionate to their cash payments (including Contributions, adjustments, Assessments and other property at market value when received) made during the term of this Agreement for such Program. The Board of Directors shall determine such distribution within six (6) months after disposal of the last pending Claim or loss covered by such Program, or as otherwise set forth in the Bylaws.
SDRMA 6th Amended JPA 13 Effective October 2, 2007 24 (d) Upon termination of this Agreement all net assets of the Authority, other than of any Program distributed pursuant to (c) above, shall be distributed only among the Members in good standing at the time of such termination in accordance with and proportionate to their cash contributions and property at market value when received. The Board of Directors shall determine such distribution within six (6) months after disposal of the last pending Claim or loss covered by this Agreement, or as otherwise set forth in the Bylaws.
(e) In the event the Board of Directors is no longer able to assemble a quorum, the Chief Executive Officer shall exercise all powers and authority under this Article. The decision of the Board of Directors or Chief Executive Officer under this Article shall be final.
(f) In lieu of terminating this Agreement, the Board, with the written consent of two- thirds of the voting Members, may elect to assign and transfer all of the Authority’s rights, assets, liabilities and obligations to a successor joint powers authority created under the Act.
Article 23. Enforcement. The Authority is hereby granted authority to enforce this Agreement. In the event action is instituted to enforce the terms of this Agreement, the Bylaws and/or any policies and/or procedures of the Board of Directors and the nondefaulting party(s) should employ attorneys or incur other expenses for the collection of moneys or the enforcement or performance or observance of any obligation or agreement on the part of the defaulting party(s) herein contained, the defaulting party agrees that it will on demand therefore pay to the nondefaulting party(s) the reasonable fees of such attorneys and such other expenses so incurred by the nondefaulting party(s).
Article 24. Nonliability of Directors, Officers and Employees. The Board of Directors, and the officers and employees of the Authority, including former directors, officers and employees, shall not be liable to the Authority, to any Member or Former Member, or to any other person, for actual or alleged breach of duty, mistake of judgment, neglect, error, misstatement, misleading statement, or any other act or omission in the performance of their duties hereunder; for any action taken or omitted by any employee or independent contractor; for loss incurred through the investment or failure to invest funds; or for loss attributable to any failure or omission to procure or maintain insurance; except in the event of fraud, gross negligence, or intentional misconduct of such director, officer or employee. No director, officer or employee, including former directors, officers and employees, shall be liable for any action taken or omitted by any other director, officer or employee. The Authority shall defend and shall indemnify and hold harmless its directors, officers and employees, including former directors, officers and employees, from any and all claims, demands, causes of action, and damages arising out of their performance of their duties as such directors, officers or employees of the Authority except in the event of fraud, gross negligence, corruption, malice or intentional misconduct, and the funds of the Authority shall be used for such purpose. The Authority may purchase conventional insurance to protect the Authority, and its participating Members or Former Members, against any such acts or omissions by its directors, officers and employees, including former directors, officers and employees.
Article 25. Provisions Relating to CSDA. It is agreed and understood the mandatory membership in CSDA provision in Article 18 is in consideration of CSDA’s exclusive endorsement of SDRMA’s programs as they exist or may be modified. CSDA and the Authority
SDRMA 6th Amended JPA 14 Effective October 2, 2007 25 may from time to time exchange services or enter into separate service agreements pursuant to Section 6505 of the Act, including, but not limited to, services relating to educational programs, marketing, web-site graphics and conferences.
So long as the Authority is a participant in the MOU, the Board of the Authority shall appoint three members of the Board to serve as members of the Alliance Executive Council. In the event the MOU has been terminated or the Authority has withdrawn from the MOU, the composition of the Authority Board of Directors shall be increased by two (2) additional directors to be appointed by CSDA. CSDA appointees shall be a director serving on the CSDA Board of Directors and said director(s) shall be a member of an agency who is a signatory to the current SDRMA Joint Powers Agreement.
CSDA shall be a third party beneficiary to Sections 18, 25, 27 of this Agreement.
Article 26. Notices. Notices to Members or Former Members hereunder shall be sufficient if delivered to the principal office of the respective Member or Former Member.
Article 27. Amendment. This Agreement may be amended at any time by a two-thirds vote of the Members; provided, that any amendment to Article 18, Article 25, or Article 27 shall require the prior written consent of CSDA. The Bylaws may be amended as provided therein. Upon the effective date of any validly approved amendment to this Agreement, such amendment shall be binding on all Members.
Article 28. Prohibition Against Assignment. No person or organization shall be entitled to assert the rights, either direct or derivative, of any Member or Former Member under any coverage agreement or memorandum. No Member or Former Member may assign any right, claim or interest it may have under this Agreement, and no creditor, assignee or third party beneficiary of any Member or Former Member shall have any right, claim or title or any part, share, interest, fund, contribution or asset of the Authority.
Article 29. Agreement Complete. The foregoing constitutes the full and complete Agreement of the parties. There are no oral understandings or agreements not set forth in writing herein. This Agreement supersedes and replaces the Fifth Amended Joint Powers Amendment.
Article 30. Counterparts. This Agreement may be executed in one or more counterparts and shall be as fully effective as though executed in one document.
Article 31. California Law. This Agreement shall be governed by the laws of the State of California.
Article 32. Severability. Should any part, term or provisions of this Agreement be determined by any court of component jurisdiction to be illegal or in conflict with any law of the State of California or otherwise be rendered unenforceable or ineffectual, the validity of the remaining portions or provisions shall not be affected thereby.
Article 33. Effective Date. This Agreement shall become effective as to existing Members of the Authority on the date on which the last of two-thirds of such Members have executed this Agreement.
SDRMA 6th Amended JPA 15 Effective October 2, 2007 26 27 EXECUTION BY MEMBER
The Amended and Restated Joint Powers Agreement of the Special District Risk Management Authority, has been approved by the Board of Directors of the Member listed below, on the date shown, and said Member agrees to be subject to all of the terms and conditions set forth in said Agreement.
Entity Name:______
By:______President
By:______Clerk
Date:
EXECUTION BY AUTHORITY
The Special District Risk Management Authority (the “Authority”), operating and functioning pursuant to this Sixth Amended Joint Powers Agreement, hereby accepts the entity named above as a participating member in the Authority, subject to all of the terms and conditions set forth in this Sixth Amended Joint Powers Agreement and in the Bylaws, effective as of
______.
SPECIAL DISTRICT RISK MANAGEMENT AUTHORITY
By:______David Aranda, President Board of Directors
Date:
SDRMA 6th Amended JPA 17 Effective October 2, 2007 28 Page 5
RESOLUTION NO.: DATED:
A RESOLUTION AUTHORIZING APPLICATION TO THE DIRECTOR OF INDUSTRIAL RELATIONS, STATE OF CALIFORNIA FOR A CERTIFICATE OF CONSENT TO SELF INSURE WORKERS’ COMPENSATION LIABILITIES
At a meeting of the Board of (enter title) of the , (enter name of public agency, district) a organized and existing under the laws of the State of California, (enter type of agency) held on the day of , 20 , the following resolution was adopted:
RESOLVED, that the (enter position titles) be and they are hereby severally authorized and empowered to make application to the Director of Industrial Relations, State of California, for a Certificate of Consent to Self Insure workers’ compensation liabilities on behalf of the
(enter name of district)
and to execute any and all documents required for such application.
I, , the undersigned (enter name) (enter title) of the Board of the said , (enter name of agency) a , hereby certify that I am the (enter type of agency) (enter title) of said , that the foregoing is a full, true and correct copy of the (enter type of agency) resolution duly passed by the Board at the meeting of said Board held on the day and at the place therein specified and that said resolution has never been revoked, rescinded, or set aside and is now in full force and effect. IN WITNESS WHEREOF: I HAVE SIGNED MY NAME AND AFFIXED THE SEAL OF THIS
Seal , (enter type of agency)
THIS DAY OF , 20 .
(Signature)
29 ATTACHMENT 3 State of California Page 1 Department of Industrial Relations Self Insurance Plans 2265 Watt Avenue, Suite 1 Sacramento, CA 95825 Phone (916) 483-3392 FAX (916) 483-1535 Our File:
APPLICATION FOR A PUBLIC ENTITY CERTIFICATE OF CONSENT TO SELF INSURE
NOTE: All questions must be answered. If not applicable, enter “N/A”. Workers’ compensation insurance must be maintained until certificate is effective.
APPLICANT INFORMATION
Legal Name of Applicant (show exactly as on Charter or other official documents):
Street Address of Main Headquarters:
Mailing Address (if different from above): Federal Tax ID No.:
City: State: Zip + 4:
TO WHOM DO YOU WANT CORRESPONDENCE REGARDING THIS APPLICATION ADDRESSED?
Name:
Title:
Company Name:
Mailing Address:
City: State: Zip + 4:
Type of Public Entity (check one):
City and/or County School District Police and/or Fire District Hospital District Joint Powers Authority
Other (describe):
Type of Application (check one):
New Application Reapplication due to Merger or Unification Reapplication due to Name Change Only
Other (specify):
Date Self Insurance Program will begin: Form No. A4-2 (2/92) 30 ATTACHMENT 4 Page 2
CURRENT PROGRAM FOR WORKERS’ COMPENSATION LIABILITIES
Currently Insured with State Compensation Insurance Fund, Policy Number:
Policy Expiration Date: Yearly Premium: $
Current Yearly Incurred (paid & unpaid) Losses: $ (FY or CY)
Currently Self Insured, Certificate Number:
Name of Current Certificate Holder:
Other (describe):
JOINT POWERS AUTHORITY Will the applicant be a member of a workers’ compensation Joint Powers Authority for the purpose of pooling workers’ compensation liabilities? Yes No If yes, then complete the following:
Effective date of JPA Membership: JPA Certificate No.:
Name and Title of JPA Executive Officer:
Name of Joint Powers Authority Agency:
Mailing Address of JPA:
City: State: Zip + 4:
Telephone Number: ( )
PROPOSED CLAIMS ADMINISTRATOR
Who will be administering your agency’s workers’ compensation claims? (check one)
JPA will administer, JPA Certificate No.:
Third party agency will administer, TPA Certificate No.:
Public entity will self administer Insurance carrier will administer Name of Individual Claims Administrator:
Name of Administrative Agency:
Mailing Address:
City: State: Zip + 4:
Telephone Number: ( ) 31 FAX Number: ( ) Page 3
Number of claims reporting locations to be used to handle the agency’s claims:
Will all agency claims be handled by the administrator listed on previous page? Yes No
AGENCY EMPLOYMENT
Current Number of Agency Employees:
Number of Public Safety Officers (law enforcement, police or fire):
If a school district, number of certificated employees:
Will all agency employees be included in this self insurance program? Yes No If no, explain who is not included and how workers’ compensation coverage is to be provided to the excluded agency employees:
INJURY AND ILLNESS PREVENTION PROGRAM
Does the agency have a written Injury and Illness Prevention Program? Yes No Individual responsible for agency Injury and Illness Prevention Program: Name and Title:
Company or Agency Name:
Mailing Address:
City: State: Zip + 4:
Telephone Number: ( )
SUPPLEMENTAL COVERAGE
Will your self insurance program be supplemented by any insurance or pooled coverage under a standard workers’ compensation insurance policy? Yes No If yes, then complete the following:
Name of Carrier or Excess Pool:
Policy Number:
Effective Date of Coverage:
32 Page 4
Will your self insurance program be supplemented by any insurance or pooled coverage under a specific excess workers’ compensation insurance policy? Yes No If yes, then complete the following: Name of Carrier or Excess Pool:
Policy Number:
Effective Date of Coverage:
Retention Limits:
Will your self insurance program be supplemented by any insurance or pooled coverage under an aggregate excess (stop loss) workers’ compensation insurance policy? Yes No If yes, then complete the following: Name of Carrier or Excess Pool:
Policy Number:
Effective Date of Coverage:
Retention Limits:
RESOLUTION OF GOVERNING BOARD
See Attached Resolution—Page 5
CERTIFICATION
The undersigned on behalf of the applicant hereby applies for a Certificate of Consent to Self Insure the payment of workers’ compensation liabilities pursuant to Labor Code Section 3700. The above information is submitted for the purpose of procuring said Certificate from the Director of Industrial Relations, State of California. If the Certificate is issued, the applicant agrees to comply with applicable California statutes and regulations pertaining to the payment of compensation that may become due to the applicant’s employees covered by the Certificate.
Signature of Authorized Official: Date:
Typed Name:
Seal Title:
Agency Name:
(Emboss seal above or Notarize signature) 33 2010 CSDA Membership Application - Regular and Associate Members Mail or fax application and annual dues payment to: CSDA, Attn: Membership, 1112 I Street, Suite 200, Sacramento, CA 95814 t: 916.442.7887 f: 916.442.7889 toll-free: 877.924.CSDA [email protected] www.csda.net
Agency name:
Main contact: Title:
Street address:
City: State: California Zip:
Phone: Fax:
Email: Website:
Counties (please list all): Toll free phone:
Services provided (please check all that apply): Airport Memorial Resource conservation Air quality/Pollution Harbor/Port Mosquito/Vector control Road maintenance Ambulance Hazard abatement Open space Sanitary/Wastewater Cemetery Health care/Hospital Parks & Recreation Storm drain Fire protection Irrigation Reclamation Streetlights Garbage Library Resort/Muni improvement Water Other:
Please provide a list of board members and requested staff to receive the California Special District magazine and other key information. For additional board members, please attach a separate sheet with their names and contact information.
Full name: Email:
Address, City, Zip:
Full name: Email:
Address, City, Zip:
Full name: Email:
Address, City, Zip:
Full name: Email:
Address, City, Zip:
Full name: Email:
Address, City, Zip:
General Manager: Email: Phone:
Email: Phone:
Legal Counsel: Email: Phone:
Clerk/Board Secretary: Email: Phone:
Human Resources: Email: Phone:
Board Composition Regular Members: Board directly elected by voters (Independent District)
Associate Members:
Board elected or appointed to separate governing body and automatically assigned to Board (Dependent District) JPA - Board comprised of representatives from two or more agencies responsible for forming the Joint Powers Authority City, County or other public agency
CSDA Annual Membership Dues - 2010
Your operating budget: Operating Budget 2010 Dues Operating Budget 2010 Dues Associate members 2010 Dues
$ $0 - $150,000 $490 $625,001 - $750,000 $1,097 All Associate members $776 $150,001 - $200,000 $550 $750,001 - $1,000,000 $1,573 For CSDA dues purposes, operating $200,001 - $250,000 $597 $1,000,001 - $1,250,000 $2,022 budget is defined as the district’s $250,001 - $300,000 $644 $1,250,001 - $1,500,000 $2,451 total operating revenue/income as of OBRA 1993 prohibits taxpayers from June 30, 2009. $300,001 - $350,000 $763 $1,500,001 - $1,750,000 $2,869 deducting, for federal income tax $350,001 - $425,000 $831 $1,750,001 - $2,000,000 $3,325 purposes, the portion of membership dues that are allocable to the lobbying activities $425,001 - $500,000 $931 $2,000,001 - $5,000,000 $3,799 of trade organizations. The nondeductible *CSDA dues are increased annually $500,001 - $625,000 $1,023 $5,000,001 and over $4,088 portion of your dues is estimated to be 7%. 34 ATTACHMENT 5 Agenda Item 3 January 21, 2011
TO: JPA Board
FROM: Staff
SUBJECT: Background Check Policy
RECOMMENDATION:
Adopt resolution approving the Criminal Background Check Policy
SITUATION:
At your Board’s September 17 meeting, your Board approved requiring a background check process for volunteers in certain capacities. At that meeting, your Board directed staff to prepare a policy that would describe how the background checks would be applied and which volunteers are subject to the policy. Other issues that were specifically raised to be addressed in the policy related to privacy of the background check results, how the decisions would be made regarding whether an applicant is disqualified and whether someone needs to have a background check if they have already received a check through another agency. A draft policy was prepared and reviewed by the CAC. Subsequently, Counsel Brechtel advised that the policy should follow the outline provided by the Department of Justice. The DOJ outline has been modified by staff to address the issues your Board and the CAC raised. Please note that the modified policy would require a background check for all employees, not just volunteers, per the DOJ outline. The modified policy is attached for your review.
Staff recommends that your Board adopt the attached draft resolution approving the policy.
CAC RECOMMENDATION:
The CAC reviewed the previous draft at their November 4th meeting. They approved the following motion on a vote of 12 in favor and 3 opposed: Approve the policy in principle with the additional comments suggested by various CAC members:
Section 1a. Add Citizens Advisory Committee chair (done; also added JPA Board) Concern was raised about one person (the Executive Director) having the authority to decide whether an applicant must be disqualified or not. The suggestion was made that perhaps the decision would be made by the Executive Director in consultation with the JPA Chair and Counsel. Alternatively, the Executive Director’s decision could be appealable to the JPA Chair and Counsel. ALTERNATIVES
1. Adopt attached draft resolution and policy. 2. Revise policy
35 Agenda Item 3 January 21, 2011
3. Give staff other direction.
RECOMMENDATION:
Adopt resolution approving the Criminal Background Check Policy
Respectfully submitted,
Susan A. Carter Deputy Director
Attachments: 1. Draft Resolution 2. Draft Background Check Policy
36 Agenda Item 3 January 21, 2011
RESOLUTION NUMBER R0-
RESOLUTION OF THE BOARD OF DIRECTORS OF THE SAN DIEGUITO RIVER PARK JOINT POWERS AUTHORITY ADOPTING A CRIMINAL BACKGROUND CHECK POLICY FOR EMPLOYEES AND VOLUNTEERS
WHEREAS, the San Dieguito River Park Joint Powers Authority (“JPA”) has determined that it is necessary to conduct background checks on certain employees and volunteers to ensure the safety of the public with respect to park activities and programs;
WHEREAS, the JPA has requested and received authorization from the California Department of Justice to access federal, state and local summary criminal history information for employment, licensing and certification purposes; and
WHEREAS, the JPA wishes to establish clear protocols and procedures for implementing said background checks;
NOW THEREFORE BE IT RESOLVED THAT THE BOARD OF DIRECTORS
a. Adopts the attached policy for conducting criminal background checks and securing received criminal history information; and b. Authorizes the Executive Director to obtain said summary criminal background information from the Department of Justice and to carry out the responsibilities assigned to the Executive Director in the attached policy.
I, the undersigned, hereby certify that the foregoing Resolution Number was duly adopted by the Board of Directors following roll call vote:
Ayes:
Noes:
Absent:
Abstain:
Chair
ATTEST:
Jan Lines, Clerk
ATTACHMENT 1 37 Agenda Item 3 January 21, 2011
POLICY NUMBER SAN DIEGUITO RIVER PARK JOINT POWERS AUTHORITY POLICY FOR CONDUCTING CRIMINAL BACKGROUND CHECKS AND SECURING RECEIVED CRIMINAL HISTORY INFORMATION
I. POLICY STATEMENT
A. To ensure that the interests of the San Dieguito River Park Joint Powers Authority, its employees and members of the public are protected and to help minimize potential liability, the Board of Directors of the San Dieguito River Park Joint Powers Authority (JPA) has passed a resolution authorizing it to obtain from the Department of Justice summary criminal background information on applicants for employment and volunteer positions.
B. The JPA desires to identify those prospective employees and volunteers who have a criminal history so that information about criminal history can be used in employment decisions.
C. The JPA wishes to comply with Public Resources Code Section 5164 which requires that the JPA take reasonable steps to determine if a prospective employee or volunteer has been convicted of any crimes specified in Penal Code Section 11105.
D. The JPA shall not consider a person who has been convicted of a felony or misdemeanor involving moral turpitude eligible for employment or to be a volunteer if the felony or misdemeanor is to a crime specified in Section III below as being relevant to the employment in question or in the case of a crime not actually listed it is determined by the JPA Attorney to be substantially similar in nature to those listed that a reasonable person would have had notice that such a crime would bar employment.
II. AUTHORITY California Penal Code Section 11105 allows cities, counties and districts to obtain state summary criminal background information from the Department of Justice if the Board of Directors has given the Director of Personnel authority to obtain such records. As the JPA does not have a Director of Personnel, the JPA has given its Executive Director such authority pursuant to Resolution No. of the San Dieguito River Park Joint Powers Authority in adopting this policy.
III. APPLICABILITY
ATTACHMENT 2 38 Agenda Item 3 January 21, 2011
A. The JPA shall obtain criminal background information on all prospective full-time and part-time employees, and for all current and prospective volunteers. The following types of volunteers will be exempt from the criminal background information requirement, provided that the volunteer work will not involve supervisory or disciplinary authority over a minor:
a. One time or occasional volunteers such as those who attend publicly-advertised monthly habitat restoration workparties; b. Joint Powers Authority Board members; c. Citizens Advisory Committee Chair and Citizens Advisory Committee members and other committee members of various ad hoc and standing committees; d. Individuals who provide proof of previous security clearance within the past two years; and e. Others as determined by the Executive Director.
The JPA shall not hire individuals if records show convictions of the following crimes of moral turpitude within ten (10) years of the date of application or after hiring:
General: Section 68: Asking for or receiving bribes Section 72: Presentation of fraudulent claims Section 73, 74: Bribes for appointment to office Section 187, 189: Murder Section 209: Kidnapping for ransom, extortion or robbery Section 211: Robbery: taking personal property in possession of someone by force or fear Section 245: Assault with deadly weapon Section 261: Rape Section 451: Arson of structure, forest land or property Section 459: Burglary Section 484: Theft Section 503: Embezzlement: fraudulent appropriation of property by a person to whom it has been entrusted Section 518: Extortion: obtain property by a wrongful use of force or fear or under color of official right
B. In addition to Section A above, for positions relating to interaction with minors the following areas shall also be grounds to not hire or for discipline up to and including termination.
A. Violations or attempted violations of Penal Code Sections 220, 261.5, 262, 273a, 273d, or 273.5, 288, or any sex offense listed in Section 290.
B. Any crime described in the California Uniform Controlled Substances Act
ATTACHMENT 2 39 Agenda Item 3 January 21, 2011
(Division 10, commencing with Section 11000, of the Health and Safety Code), provided that, except as otherwise provided in subdivision (c), no record of a misdemeanor conviction shall be transmitted to the requester unless the subject of the request has a total of three or more misdemeanor or felony convictions defined in this section within the immediately preceding 10-year period.
C. Any felony or misdemeanor conviction within 10 years of the date of the employer’s request under subdivision (a), for a violation or attempted violation of Chapter 3 of Title 8 of the California Penal Code (commencing with Section 207), Section 211 or 215, wherein it is charged and proved that the defendant personally used a deadly or dangerous weapon, as provided in subdivision (b) of Section 12022, in the commission of that offense, Section 217.1, Chapter 8 of Title 8 of the Penal Code (commencing with Section 236), Chapter 9 (commencing with Section 240), and for a violation of any of the offenses specified in subdivision (c) of Section 667.5, provided that no record of a misdemeanor conviction shall be transmitted to the requester unless the subject of the request has a total of three or more misdemeanor or felony convictions defined in this section within the immediately preceding 10- year period.
D. Any felony or misdemeanor conviction under Penal Code Section 311, et seq., photographic use of children relative to sexual conduct.
C. In addition to those crimes listed in Section A above, for positions relating to use of public funds and public records, the following shall also be grounds not to hire or for discipline up to and including termination.
Section 115, 1153: Use of a false or forged public record; alteration of certified copy of public record Section 424: Embezzlement and falsification of accounts Title 13, Chapter 4: Any violation of forgery and counterfeiting
D. For positions requiring strict public confidence such as (identify positions), in addition to Sections A, B and C above, any penal code violation which resulted in conviction shall be grounds not to hire and after hiring grounds for discipline up to and including termination.
IV. ASSIGNMENT RESPONSIBILITY It is the applicant’s responsibility to report any conviction or arrest pending final adjudication to the JPA. The information shall be included on all employment applications. Once a person has been hired under this procedure, convictions or arrests pending conviction which occur that are in the list specified for that employee under Section III above, the employee or volunteer shall report that conviction or arrest to his
ATTACHMENT 2 40 Agenda Item 3 January 21, 2011
or her supervisor who shall forward the information to the Department Head and Executive Director. Alternatively, the Executive Director may be informed directly.
V. PROCEDURES
A. All prospective JPA employees and volunteers (subject to the limitations described in Section III shall be subject to a criminal records check as a condition of employment.
A. The JPA shall submit a completed Applicant Fingerprint Card to the Department of Justice accompanied by any other forms or information required by the Department of Justice in order to obtain the criminal background information.
B. Any information obtained from the Department of Justice shall be used to determine whether the applicant shall be offered a position with the JPA.
B. For any employee or volunteer who has been hired subsequent to the adoption of the policy, who passed the initial screening, the individual must sign an acknowledgement that conviction of crimes listed in Section III above under their job category or determined to be substantially similar by the JPA Attorney shall be grounds for disciplinary action up to and including termination. Further, any such individual has the responsibility to report any such conviction to the Executive Director.
C. The JPA shall enter into a contract with the Department of Justice so that any subsequent conviction or arrest information concerning an employee or volunteer that was originally hired subject to this policy may be obtained.
A. Any information about existing employees’ or volunteers’ convictions and/or arrests pending adjudication shall be reported to the Executive Director.
B. Upon receipt of information regarding a conviction and/or arrest pending adjudication which is specified as not acceptable for the given position in Section III above, the Executive Director and JPA Attorney shall evaluate the effect and potential effect of the employee’s or volunteer’s record or arrest on their position of employment, fellow employees and the public, and shall take appropriate action to maximize public safety and minimize potential liability while respecting the rights of the employee or volunteer.
VI. CONFIDENTIALITY State summary criminal history information is confidential and shall not be disclosed, except to those individuals designated to make employment decisions.
ATTACHMENT 2 41 Agenda Item 3 January 21, 2011
A. Pursuant to California Penal Code Section 11077 the Attorney General is responsible for the security of Criminal Offender Record Information (CORI) and has the authority to establish regulations to assure the security of CORI from unauthorized disclosures. The following are requirements as prescribed by the State of California, Department of Justice, Bureau of Criminal Identification and Information, Field Operations and Record Security for any agency that maintains or receives criminal history information.
A. Record Security: Any inquiries regarding the release, security or privacy of Criminal Offender Record Information (CORI) are to be resolved by the Executive Director.
B. Record Storage: CORI shall be under lock and key and accessible only to the Executive Director who shall be committed to protect CORI from unauthorized access, use or disclosure.
C. Record Dissemination: CORI shall be used only for the purpose for which the Executive Director requested it.
D. Record Destruction: CORI and copies of the same shall be destroyed after employment determination has been made in such a way and to the extent that the employee’s name can no longer be identified.
E. Record Reproduction: CORI may not be reproduced for dissemination.
F. Training: The Executive Director and employees with access to CORI are required:
a. To read and abide by this policy,
b. To be fingerprinted and have a clearance check completed,
c. To have on file a signed copy of the Employee Statement Regarding the Use of Criminal Record Information, which acknowledges an understanding of laws prohibiting misuse of CORI.
G. Penalties: Misuse of CORI is a criminal offense. Violation of this policy regarding CORI may result in suspension, dismissal, and/or criminal or civil prosecution.
VII. MONITORING OF THIS PROGRAM The Executive Director will monitor compliance with this policy and all other Department Heads shall assist the Executive Director as needed.
ATTACHMENT 2 42 Agenda Item 3 January 21, 2011
This policy is adopted by the Board of Directors of the San Dieguito River Park Joint Powers Authority and shall be effective immediately upon the date of approval.
VIII. REFERENCES: California Penal Code
ATTACHMENT 2 43 Agenda Item 4 January 21, 2011
TO: JPA Board
FROM: Staff
SUBJECT: San Dieguito Lagoon
RECOMMENDATION:
Authorize the Chair to send a letter to the City of Del Mar requesting that the City designate the site at the northeast corner of San Dieguito Drive and Jimmy Durante Blvd. for a trail parking/staging area.
SITUATION:
A. At the present time, there is no trailhead staging area or other parking area for trail users west of I-5 at the lagoon. See Attachment 1 for map of the area. At the Lagoon Overlook at Grand Avenue Bridge there enough spaces for 5 cars to park. The Riverpath Del Mar only has parking available for about 5 vehicles. This shortage of parking spaces makes it very difficult for trail users to access the Boardwalk or the west end of the Coast to Crest Trail. Our Outreach Specialist has explained that she cannot program educational activities and school programs in the lagoon area west of the freeway because there is nowhere for students and/or parents to park. The 22nd District Agricultural Association is willing to allow a parking area for trail users in their parking lots south and east of Jimmy Durante, but most of the areas on their property near the trail are in designated wetlands, and therefore not appropriate for parking. Recently we have learned that there is a possibility of securing a parking area for trail users at the northeast corner of Jimmy Durante Blvd. and San Dieguito Drive. This site is owned by North County Transit District but operated by the City of Del Mar. It is currently used as a recycling center. We have been informed that that lessee is leaving and that other uses are being considered. A proposal has been made by a towing company to lease that site. Staff recommends that your Board consider requesting the City of Del Mar to designate the site for parking use instead. Cleaning up the site and using it for parking would be a much more attractive and appropriate use of the site, which is directly adjacent to the river, than recycling or towing services. The site would provide direct trail access to the Coast to Crest Trail, including the aforementioned boardwalk (just a walk on the sidewalk over the Jimmy Durante Bridge), and the Riverpath Del Mar. In addition it is close to the Lagoon Overlook at Grand Avenue Bridge. Parking meters could provide revenue to make lease payments to NCTD. River Park staff could support the effort through patrol and trash collection. Staff recommends that your Board request the City of Del Mar to establish a trailhead parking lot at that location.
44 Agenda Item 4 January 21, 2011
B. JPA staff will provide your Board with an oral update on the progress of trail planning and implementation in the lagoon area. Several trails are in progress of construction, including the Lagoon Trail Segment 8, the Mesa Loop Trail, and the Horsepark Trail. In addition, the Reach the Beach Alternatives Study is underway.
Respectfully Submitted,
Dick Bobertz
Attachment: 1. Lagoon Map with Trails
45
H
I
G
M A
H C
I
N W
O
A
D
Y
E
L
1
0 1 M A R
0 1 1 0
1 10 0
RiverPath RiverPath Del Mar Del Del Mar Del
V
I 0.25 mile 0.25 A
D
E
L
A
V
A
L
L
E
Del Mar Fairgrounds
0.28 mile 0.28
B
o
a
r
d
10 Grand Avenue Grand 1
w
0
(see separate (see map)
Overloo
a
Canyon S
A
N
l
Crest D k
Trail I
E
G
k
U
I
T
O
D
Platform
Viewing R
.
0.45 mile
. JIM D V L Y M
B DU R A
NT E
110
0
Ecologic 110
0
San Dieguito San
al Preserve al
Lagoon Trail Lagoon
0.65 mile 0.65 Albertsons
Shopping 46
5 Center
0 1 1 0
S
A
N
A N
D
R S E
0.60 mile
(Future)
1 0
0 Visitor’s
Mesa Loop
Center
Parking Available Trailhead easy . 0.25 . easy RiverPath Del Mar . easy 1.70 . . 0.28 Lagoon Trail . Boardwalk
(Future)
V BOARDWALK & LAGOON TRAIL
Trail
I
A
D
E
L
A
San Dieguito Ri Dieguito San
V
A
L
L 110 E
0
ver
N I
M O
A
R
C
E L
A E 0 L eghDifficulty Length ATTACHMENT 1 Horse Park Trail .25 (Future)
47 ATTACHMENT 2 Site Detail Site 2 ATTACHMENT
/
'
,
•
fIIr f ii I
f
1, ^.-_ r n Agenda Item 5 January 21, 2011
TO: JPA Board
FROM: Staff and Legal Counsel
SUBJECT: Approval of Conservation Easement Deed On Approximately 3.27 Acres on the Bandy Canyon Ranch (former Fenton Ranch)
RECOMMENDATION:
Adopt attached resolution accepting a Conservation Easement Deed over approximately 3.27 acres at Bandy Canyon Ranch (former Fenton Ranch) and authorize the Executive Director to execute all documents necessary to complete the transaction.
Background
The Bandy Canyon Ranch is comprised of approximately 302 acres located in the Bandy Canyon area of San Diego County. (See Attachment 1) The property is owned by Bandy Canyon Environmental Lands, LLC. The property 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. In October 2008, the JPA accepted a conservation easement over 90 acres of the ranch that provided coastal sage scrub mitigation credits for Palomar Community College District (“District”).
At the time the 90-acre conservation easement was approved by your Board, staff explained that the long term plan is for the JPA to accept conservation easements over other portions of the Ranch, perhaps the entire area, subject to appropriate mitigation plans and endowments.
The proposal before you today is to accept a conservation easement over 3.27 acres of the Bandy Canyon Ranch that will provide wetland credits to the District, following restoration of the site.
The District proposes to pay funds into the JPA’s Endowment Fund sufficient to provide income each year to carry out the required management and maintenance duties associated with the restored wetlands.
The transaction being considered for approval today consists of the following basic elements:
1. Bandy Canyon Environmental Lands, LLC grants the JPA a Conservation Easement Deed covering approximately 3.27 acres;
48 Agenda Item 5 January 21, 2011
2. Concurrent with acceptance of the Conservation Easement Deed, Bandy Canyon Environmental Lands, LLC provides the JPA with funding for a long-term management endowment in the amount of $84,402.80. The JPA will deposit the long-term endowment funding into its non-wasting, income endowment fund at Fidelity Investments. No start up management funding is necessary as the startup costs will be included in the cost of the restoration project;
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. At this wetland site it would also include additional activities such as erosion control, replacement of plant materials and irrigation monitoring and repair.
4. In addition, the District has requested the JPA to hold the restoration funds in escrow and disburse the funds to contractors and consultants as instructed. The JPA will receive an administrative fee of 3% of the project cost for providing this service. To provide this service it is necessary for your Board to authorize the Executive Director to request the County of San Diego Auditor/Controller’s office (which handles accounts payable and receivable for the JPA) to create a separate fund for this purpose.
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 attached resolution and give staff other direction.
RECOMMENDATION:
Adopt attached resolution accepting a Conservation Easement Deed over approximately 3.27 acres at Bandy Canyon Ranch (former Fenton Ranch) and authorize the Executive Director to execute all documents necessary to complete the transaction.
49 Agenda Item 5 January 21, 2011
Respectfully submitted,
Dick Bobertz, Executive Director
Attachment: 1. Site Map 2. Easement Area Map 3. Resolution Authorizing Acceptance of Conservation Easement Deed 4. Draft Conservation Easement
50 ATTACHMENT 1
51 COMPOSITE PALOMAR COLLEGE/SANDGAG/CALTRANS MITIGATION LAND EXHIBIT
LEGEND PALOMAR COMMUNITY COLLEGE OPEN SPACE MITIGATION LAND
SANDAG/CALTRANS OPEN SPACE MIGATION LAND
NOTES:
52 ATTACHMENT 2 Agenda Item 5 January 21, 2011
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 BANDY CANYON ENVIRONMENTAL LANDS, LLC 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;
WHEREAS, Bandy Canyon Environmental Lands, LLC has offered to grant the JPA the attached Conservation Easement Deed covering approximately 3.27 acres of land within property commonly known as Bandy Canyon Environmental Land (“Easement Area”);
WHEREAS, Palomar Community College District has offered to provide the JPA with the sum of $84,402.80 to fund an endowment for ongoing management costs;
WHEREAS, Palomar Community College District also intends to fund the restoration of existing wetlands and creation of new wetlands within the Easement Area;
WHEREAS, the Easement Area is within the JPA Focused Planning Area, is adjacent to properties over which the JPA holds conservation easements, 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 General Counsel;
2. Receipt of $84,402.80 to fund an endowment for ongoing management costs;
3. Review and approval of a title report and policy of title insurance for the Easement Area that ensures it is not encumbered by any unacceptable easements, liens, etc.;
4. Physical inspection of the Easement Area and/or investigation by the 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.
BE IT FURTHER RESOLVED that the Executive Director may open and manage a separate JPA bank account to hold funds provided by the Palomar Community College District
ATTACHMENT 3
53 Agenda Item 5 January 21, 2011
for the purpose of funding the restoration and creation of wetlands within the Easement Area (hereafter “Restoration Fund”). The JPA’s obligation with regard to the Restoration Fund shall be limited to disbursing funds as directed by the public agency that issues the permit for the restoration work. The JPA shall not be responsible for ensuring the completion or success of the restoration work.
The Board of the JPA authorizes its Executive Director, Dick Bobertz and/or Deputy Director, Susan Carter, 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 and agreement that may be required to carry out the terms of this Resolution. It is the express intent of this Board in adopting this Resolution that no further action of this Board is required and that the JPA’s Executive Director and/or Deputy Director are fully authorized to complete the Conservation Easement sale conformance with its terms of this Resolution.
Passed and Adopted this Twenty-First Day of January 21, 2011 by the following vote:
AYES: NOES: ABSENT: ABSTAIN:
Chair
ATTEST: Jan Lines, Clerk
ATTACHMENT 3
54 Agenda Item 5 January 21, 2011
RECORDING REQUESTED BY AND ) WHEN RECORDED MAIL TO: ) San Dieguito River Park JPA ) c/o D. Wayne Brechtel ) Worden Williams, APC ) 462 Steven Avenue, Ste 102 ) Solana Beach, CA 92075 )
Space Above Line for Recorder's Use Only
CONSERVATION EASEMENT DEED
THIS CONSERVATION EASEMENT DEED is made this ______day of ______, 2011, by Bandy Canyon Environmental Lands, LLC, a California limited liability company ("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 3.27 acres, and commonly known as the Bandy Canyon Environmental Land, designated Assessor’s Parcel Number 276-040-13 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 totaling approximately 3.27 acres as described and shown with more particularity on Exhibits “B” and “B-1” 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. The Easement Area provides high quality habitat for wetland restoration and creation. 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.
C. This Conservation Easement provides for mitigation of certain biological impacts associated with the Palomar Community College District’s development of the North Education Center (“Project”) on an approximate 85-acre site in the unincorporated community of Fallbrook, California. Specifically, this Conservation Easement provides mitigation for Project impacts to 1.55 acres of wetland habitat consisting of alkali meadow, freshwater marsh, Southern cottonwood-willow riparian forest and southern willow scrub by providing for the restoration, creation and preservation of 3.27 acres of wetlands (.95 acre of wetland creation and 2.32 acres of wetland restoration) in accordance with the Restoration Plan dated ______attached hereto and incorporated herein as Exhibit C (hereafter “Restoration Plan”)
D. Grantee is a local government agency authorized to hold conservation easements pursuant to Civil
ATTACHMENT 4
55 Agenda Item 5 January 21, 2011
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.
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 facilitate restoration and creation of wetlands within the Easement Area and to ensure it 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 restoration and creation of wetlands and 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 ______Habitat Management Plan dated ______attached hereto and incorporated herein as Exhibit D and the Restoration Plan attached as Exhibit C”). 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.
ATTACHMENT 4
56 Agenda Item 5 January 21, 2011
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.
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. In addition, Grantor shall be responsible for implementation of all terms and conditions of the Restoration Plan, including all post restoration monitoring and work required to obtain confirmation from the responsible permitting and/or wildlife agencies that all Restoration Plan success criteria have been satisfied (hereafter “Restoration Plan Approval”).
ATTACHMENT 4 57 Agenda Item 5 January 21, 2011
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: (i) the passage of five years from recordation of the Conservation Easement or (ii) Restoration Plan Approval, whichever occurs sooner .However, Grantee’s maintenance obligations shall not include responsibility for implementation or completion of the Restoration Plan. Grantee shall permit Grantor and/or the developer of the Project identified in Recital C to complete any additional monitoring and/or work required by the Restoration Plan.
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 therefo, 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 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
ATTACHMENT 4 58 Agenda Item 5 January 21, 2011
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 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 for any labor or materials furnished or alleged to have been furnished to or for Grantor at or for use on the Easement Area.
8.2. 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: Bandy Canyon Environmental Lands, LLC
ATTACHMENT 4 59 Agenda Item 5 January 21, 2011
6215 Branting Street San Diego, CA 92122
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.
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.
ATTACHMENT 4
60 Agenda Item 5 January 21, 2011
(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 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.
ATTACHMENT 4
61 Agenda Item 5 January 21, 2011
(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 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.
ATTACHMENT 4
62 Agenda Item 5 January 21, 2011
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: ______
ATTACHMENT 4
63 Agenda Item 5 January 21, 2011
CERTIFICATE OF ACCEPTANCE
This is to certify that the interest in real property conveyed by this Conservation Easement Deed by Bandy Canyon Environmental Lands, LLC, a California limited liability company, 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, pursuant to the authority of Resolution No. ______adopted by the JPA Board of Directors on ______.
GRANTEE:
SAN DIEGUITO RIVER VALLEY REGIONAL OPEN SPACE PARK JOINT POWERS AUTHORITY
By: ______Name:______Title: ______Date: ______
ATTACHMENT 4
64 Agenda Item 6 January 21, 2011
TO: JPA
FROM: Staff and Legal Counsel
SUBJECT: Sale of Mitigation Credits
RECOMMENDATION:
Adopt attached resolution authorizing the sale of a conservation easement on a portion of the Sycamore Westridge property to the Escondido Union High School District and authorizing the Executive Director to take any and all further actions, including the execution of a purchase agreement and approval of further documents, which may be required to complete the Conservation Easement sale.
SITUATION:
A. Summary and Recommendation
In 2008, your Board accepted a 32.64 acre parcel known as Sycamore Westridge (former Maderas) that was donated by the Sunroad Corporation. The parcel is located in the City of Poway adjacent to approximately 150 acres of natural open space owned by the JPA. Subsequently, mitigation rights on an 8.9 acre portion of the parcel were sold to the U.S. Navy, as mitigation for expansion of the Miramar Brig. Two additional sales are pending, one of them to Camp Pendleton for 1.72 acres, which will come forward at a subsequent meeting, and one to Escondido Union High School District (“District”) for 16.58 acres, which is the item before you at today’s meeting. If your Board adopts the attached resolution agreeing to sell 16.58 acres of mitigation credits to the Escondido Union High School District, the District will pay the JPA the following:
A. Purchase Price of $33,250.00 per acre, for a total purchase price in the amount of $551,285.00. From the purchase price, a 6% commission will be paid to the mitigation brokers who handled the sale.
B. Payment of an additional $15,290.08 to cover the Escondido Conservation Easement’s proportionate share of initial management costs, including preparation of a Habitat Management Plan, Financial PAR and Biological Assessment; and the cost of mapping the Easement Area;
C. Payment of a $98,651.00 endowment (“Endowment Funds”), the income from which shall be used to fund long-term maintenance and management of the Escondido Conservation Easement Area, and which will be deposited in the JPA’s non-wasting, income fund at Fidelity Investment.
65 Agenda Item 6 January 21, 2011
Staff recommends that your Board adopt the attached resolution authorizing the sale of a 16.58- acre conservation easement to the Escondido Union High School District.
Respectfully submitted,
Susan A. Carter Deputy Director
Attachments: 1. Draft Resolution 2. Draft Conservation Easement Deed 3. Draft Purchase Agreement 4. Location Map 5. Mitigation Site Plat Map
66 Agenda Item 6 January 21, 2011
RESOLUTION NO.
A RESOLUTION OF THE BOARD OF DIRECTORS OF THE SAN DIEGUITO RIVER VALLEY REGIONAL OPEN SPACE PARK JOINT POWERS AUTHORITY AUTHORIZING THE SALE OF AN 16.58-ACRE CONSERVATION EASEMENT TO THE ESCONDIDO UNION HIGH SCHOOL DISTRICT
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 and manage property for open space, mitigation and natural wildlife preservation purposes; and
WHEREAS, the JPA obtained title to approximately 32.62-acres of real property located in the City of Poway that is commonly referred to as the Sycamore Westridge Property (“Sycamore Westridge Property”) on August 5, 2009;
WHEREAS, the Sycamore Westridge Property was obtained by the JPA to ensure its long-term preservation through the sale of mitigation credits and appropriate management of the wildlife and habitat resources it contains;
WHEREAS, the City of Poway approved the JPA’s acquisition of the Sycamore Westridge Property and its use as mitigation property, provided the City is granted the right to enforce open space conditions that are placed on portions of the Sycamore Westridge Property used for mitigation purposes; and
WHEREAS, the Escondido Union High School District desires to purchase a conservation easement over a 16.58-acre portion of the Sycamore Westridge Property (“Easement Area”) to satisfy mitigation requirements for construction of a new high school, more commonly known as the Citracado High School Project (“Project”);
WHEREAS, the terms of the conservation easement that would be purchased by the Escondido Union High School District are set forth in the draft Conservation Easement attached hereto as Exhibit A (“Escondido Conservation Easement”), and the specific area it would cover is described and depicted in Exhibit B attached hereto (“Easement Area”); and
WHEREAS, the Board of Directors of the San Dieguito River Valley Regional Open Space Park Joint Powers Authority (“Board”) finds and determines that sale of the Escondido Conservation Easement is appropriate and in the public interest,
NOW, THEREFORE, be it hereby resolved as follows:
38 25424.00015\5782072.1
67 Agenda Item 6 January 21, 2011
1. The foregoing recitals are true and correct.
2. The Board hereby approves the sale of the Escondido Conservation Easement, subject to the following terms and conditions:
A. Purchase Price of $33,250.00 per acre, for a total purchase price in the amount of $551,285.00;
B. Payment of an additional $15,290.08 to cover the Escondido Conservation Easement’s proportionate share of initial management costs, including, the cost of mapping the Easement Area;
C. Payment of a $98,651.00 endowment (“Endowment Funds”), which shall be used to fund long-term maintenance and management of the Escondido Conservation Easement Area;
D. The terms of the Escondido Conservation Easement attached as Exhibit A shall not be materially modified without Board approval, excepting minor, non-substantive changes approved by General Counsel: and
E. Additional contingencies or assurances as the Executive Director in consultation with General Counsel, may deem reasonably necessary and appropriate in the interests of the JPA prior to the sale of the Escondido Conservation Easement;
3. The Board authorizes its Executive Director, Dick Bobertz and/or Deputy Director, Susan Carter, to take any and all further actions, including the execution of a purchase agreement and approval of further documents, which may be required to complete the Conservation Easement sale. It is the express intent of this Board in adopting this Resolution that no further action of this Board is required and that the JPA’s Executive Director and/or Deputy Director are fully authorized to complete the Conservation Easement sale in conformance with the terms of this Resolution.
Passed and Adopted this Twenty-First Day of January 21, 2011 by the following vote:
AYES: NOES: ABSENT: ABSTAIN:
Chair
39 25424.00015\5782072.1
68 Agenda Item 6 January 21, 2011
ATTEST: Jan Lines, Clerk
EXHIBIT A DRAFT GRANT OF CONSERVATION EASEMENT
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 ) ) ______
CONSERVATION EASEMENT DEED
THIS CONSERVATION EASEMENT DEED is made this ______day of ______, by the San Dieguito River Valley Regional Open Space Park Joint Powers Authority, a local government agency (“Grantor”), in favor of the Escondido Union High School District (“Grantee”), with reference to the following facts. Grantor and Grantee are sometimes referred to herein collectively as the “Parties” and individually as “Party.”
[NOTE: The structure of this Conservation Easement may change if the permits do not require the District to itself hold the easement, and if the San Dieguito Conservancy agrees to hold the easement.]
R E C I T A L S
A. Grantor is the sole owner in fee simple of certain real property in the City of Poway, County of San Diego, State of California, consisting of approximately 32.62 acres, and described in more detail in Exhibit “A” attached hereto and incorporated herein by this reference (the “Property”);
B. Grantor desires to grant and Grantee desires to accept, a Conservation Easement (“Conservation Easement”) over a portion of the Property consisting of approximately 16.58 acres, described in more detail in Exhibit “B” attached hereto and incorporated herein by this reference (“Easement Area”);
C. The Easement Area contains coastal sage scrub and sensitive plant and wildlife species (collectively, “conservation values”) of great importance to Grantor, Grantee, and the people of the State of California;
D. Grantee is a school district constructing a new career technology high school on a Grantee-owned 40 25424.00015\5782072.1
69 Agenda Item 6 January 21, 2011
36.35-acre site located south of Valley Parkway and north of Citracado Parkway in the City of Escondido, County of San Diego, California, more commonly known as the Citracado High School Project (“Project”). Grantee is authorized to hold conservation easements pursuant to Civil Code section 815.3, subdivision (b).
E. Agency Permits require Grantee to record a conservation easement on all mitigation sites for the Project, and this Conservation Easement is intended and shall be deemed to satisfy that requirement. Specifically, this Conservation Easement provides compensatory mitigation for impacts of the Project pursuant to requirements of the following federal and state agency permits, collectively referred to as the “Agency Permits”:
1. [LIST PERMITS HERE]
2.
3.
4.
F. Grantor 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.
G. Grantor and Grantee desire for Grantor to preserve and protect the Easement Area pursuant to this Conservation Easement and the Sycamore Westridge Preserve Habitat Management Plan (“Habitat Management Plan”) prepared by REC Consultants, Inc. (dated June 2009) which may be further revised from time to time, a copy of which is attached hereto and incorporated herein by this reference as Exhibit “C.” 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 values, including, without limitation, those involving the preservation and enhancement of native species and their habitat. For the purposes of this Conservation Easement, these objectives will be achieved in accordance with the Habitat Management 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 monitor Grantor in its preservation of the conservation values of the Easement Area in compliance with this Conservation Easement and the Habitat Management Plan;
41 25424.00015\5782072.1
70 Agenda Item 6 January 21, 2011
(b) To enter upon the Easement Area and/or Property at reasonable times in order to monitor Grantor’s compliance with or otherwise enforce the terms of this Conservation Easement, provided that Grantee shall not unreasonably interfere with Grantor’s authorized use and quiet enjoyment of the Property; and
(c) To prevent any activity on 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. 3. Prohibited Uses. Any activity on or use of the Easement Area inconsistent with the purposes of this Conservation Easement or the Habitat Management Plan is prohibited. All activities by Grantor and Grantee, their agents, representatives, invitees, assigns and successors or licensees, for the purpose of the creation, enhancement, monitoring and maintenance of the Easement Area’s conservation values, or for the purpose of implementing the Habitat Management Plan, are considered consistent with the purposes of this Conservation Easement. Otherwise, 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;
(k) Removing, destroying, or cutting of trees, shrubs or other vegetation, except as required for (1) fire breaks, (2) maintenance of existing foot trails or roads, or (3) prevention or treatment of disease;
(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
42 25424.00015\5782072.1
71 Agenda Item 6 January 21, 2011 degradation or pollution of any surface or sub-surface waters; and
(m) Without the prior written consent of Grantor and Grantee, which Grantor and Grantee may withhold, and provided such uses are consistent with the mitigation requirements in the Agency Permits, transferring, encumbering, selling, leasing, abandoning or otherwise separating the mineral rights or water rights for the Easement Area, or changing the place or purpose of the water rights.
4. Grantor’s Duties. To accomplish the purposes of this Conservation Easement, Grantor shall be responsible for maintaining and managing the Easement Area in accordance with the terms and conditions of this Conservation Easement and Habitat Management Plan, which shall be ongoing and in perpetuity. In particular, Grantor shall:
(a) Prevent any activity on the Easement Area that is inconsistent with the purposes of this Conservation Easement;
(b) Perform long-term maintenance and management of the Easement Area as set forth in the Habitat Management Plan;
(c) Repair and restore damage to the Conservation Easement directly caused by Grantor, its guests, representatives, employees or agencies, provided, however, such repair or restoration work is consistent with the Agency Permits and Habitat Management Plan;
(d) Set aside, hold, invest and disburse adequate endowment funds in trust, which Grantee shall fund in accordance with Section 7 herein, solely for the purposes of preserving the conservation values of the Easement Area under this Conservation Easement in perpetuity, Grantor shall have a fiduciary duty to ensure that the endowment funds held in trust for the Easement Area are properly managed, and the following principles of fiduciary duty shall apply:
(i) There shall be no commingling of the endowment funds for stewardship of the Easement Area with other funds, except funds may be pooled for investment purposes; (ii) Grantor shall have a duty of loyalty and shall not use the endowment funds for its own personal benefit;
(iii) Grantor shall act as a prudent investor of the endowment funds subject to the Uniform Prudent Investor Act (California Probate Code sections 16045 – 16054), and Grantor’s Statement of Investment Policy (dated October 19, 2007), as amended, and shall account for funds under General Accepted Accounting Principles (GAAP);
(iv) Grantor shall have annual audit of its financial activities using GAAP performed by a qualified, independent accounting organization, and said annual audit shall include a confirmation of the endowment funds. Grantor shall submit the auditor’s report to Grantee or the permitting agencies upon request; and
(v) Grantor shall give notice to the California Attorney General or any entity or individual with a justiciable interest in the preservation of this Conservation Easement affording it reasonable opportunity to assume responsibility for any enforcement action before Grantor expends funds from the Endowment on enforcement of this Conservation Easement.
5. Remedies. If a Party determines that the other Party is in violation of the terms of this
43 25424.00015\5782072.1
72 Agenda Item 6 January 21, 2011
Conservation Easement or that a violation is threatened, the Party shall give to the offending Party written notice and demand to cure of such violation. If the offending Party fails to cure the violation within fifteen (15) days after receipt of written notice and demand, or if the cure reasonably requires more than fifteen (15) days to complete and the offending Party fails to begin the cure within the fifteen (15) days or fails to continue diligently to complete the cure, the other Party may bring an action at law or in equity in a court of competent jurisdiction to enforce compliance with the terms of this Conservation Easement, to recover any damages to which the Party may be entitled for a violation 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 the violating Party’s liability therefore, the non- violating Party shall first apply any damages recovered to the cost of undertaking any corrective action on the Easement Area.
If a Party, in its sole discretion, determines that circumstances require immediate action to prevent or mitigate damage to the conservation values of the Easement Area, the Party may pursue its remedies under this Section 5 without prior notice to the other Party or without waiting for the period provided for cure to expire. The rights under this section apply equally to actual or threatened violations of the terms of this Conservation Easement. The Parties agree that remedies at law for any violation of the terms of this Conservation Easement are inadequate and that a Party shall be entitled to the injunctive relief described in this section, both prohibitive and mandatory, in addition to such other relief to which they 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. The 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 a Party to discover a violation or to take immediate legal action shall not bar the Party from taking such action at a later time.
If at any time in the future a Party 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.
5.1. Costs of Enforcement. The prevailing Party shall be entitled to recover any costs incurred to enforce the terms of this Conservation Easement, including, but not limited to, costs of suit and attorneys’ and experts’ fees, and any costs of restoration necessitated by a Party’s negligence or breach of this Conservation Easement.
5.2. Discretion to Enforce. Enforcement of the terms of this Conservation Easement by a Party shall be at its discretion, and any forbearance by a Party to exercise its rights under this Conservation Easement in the event of any breach of any term of this Conservation Easement shall not be deemed or construed to be a waiver by that Party of such term or of any subsequent breach of the same or any other term of this Conservation Easement or of any of the Party’s rights under this Conservation Easement. No delay or omission by a Party in the exercise of any right or remedy upon any breach by the other Party shall impair such right or remedy or be construed as a waiver.
5.3. Acts Beyond Grantor’s Control. Nothing contained in this Conservation Easement shall be construed to entitle either Party to bring any action against the other 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
44 25424.00015\5782072.1
73 Agenda Item 6 January 21, 2011
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.
6. Access. This Conservation Easement does not convey a general right of access to the public.
7. Costs and Liabilities.
(a) Grantee shall be responsible for providing to Grantor initial management costs in the amount of $15,290.98 (“Start Up Costs”), and an Endowment Fund in the amount of $98,651.00 (“Endowment Funds”), for the purpose of managing the Easement Area in accordance with the terms of this Conservation Easement and Habitat Management Plan in perpetuity. Thereafter, Grantee shall have no responsibility for providing additional funds for management;
(b) Each Party shall individually 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 the Agency Permits, Sections 3 and 9 herein, and all applicable federal, state, local and administrative agency statutes, ordinances, rules, regulations, orders and requirements; (c) Except as provided in this Conservation Easement, Grantee shall have no duty or responsibility for the operation and maintenance of the Easement Area, or to provide for the protection of Grantor, the public, or any other third Party, from risks relating to conditions on the Easement Area; and
(d) Grantor shall be responsible for all other costs and duties related to management of the Conservation Easement.
7.1. 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.
7.2. 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.
8. 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.
9. Subdivision and Subsequent Transfers. The division, subdivision, de facto subdivision or partition of the Easement Area is prohibited. All development rights on the Easement Area are terminated and extinguished. Grantor shall maintain the 16.58 acre Easement Area, and all interests therein, under common ownership. Grantor is not aware of any additional, separate legal parcels currently existing within the Easement Area. Grantor agrees to incorporate the terms of this Conservation Easement in any deed or other legal instrument by which Grantor divests itself of the Easement Area. Grantor further agrees to give written notice to Grantee of the intent to transfer its interest at least thirty (30) days prior to the date of such transfer. Grantee shall have the right to
45 25424.00015\5782072.1
74 Agenda Item 6 January 21, 2011 prevent subsequent transfers that are not consistent with the Agency Permits, or 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 or 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.
10. 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: San Dieguito River Park Regional Open Space Joint Powers Authority Attn: Executive Director 18372 Sycamore Creek Rd Escondido, CA 92025 Phone: (858) 674-2270 Facsimile: (858) 674-2280
To Grantor: Escondido Union High School Attn: Coordinator of Facilities 302 North Midway Drive Escondido, CA 92027 Phone: (760) 291-3219 Facsimile: (760) 739-7329 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.
11. 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.
12. 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
46 25424.00015\5782072.1
75 Agenda Item 6 January 21, 2011
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 11.
(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 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. Without limiting the obligations of Grantor under Section 12 herein, Grantor agrees to defend, indemnify, protect and hold harmless Grantee against any and all Claims (defined in Section 12) arising from or connected with any Hazardous Materials present, alleged to be present, or otherwise associated with the Easement Area at any time, except that this indemnification shall be inapplicable with respect to any Hazardous Materials placed, disposed or released by Grantee, its employees or agents.
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
47 25424.00015\5782072.1
76 Agenda Item 6 January 21, 2011
(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.
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) 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 requirements of the Agency Permits, the purposes of this Conservation Easement or will impair or interfere with the conservation values of the Easement Area. This Section 12(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 9 and Section 3(m) herein.
(l) Extinguishment/ Termination. This Conservation Easement can only be terminated or extinguished, whether in whole or in part, by judicial proceedings in a court of competent jurisdiction. No inaction or silence of Grantor or Grantee shall be construed as abandonment of this Conservation Easement. Other than pursuant to eminent domain or in lieu of eminent domain, no other voluntary or involuntary sale, exchange, conversion or conveyance of any kind of all or part of the Easement Area, or of any interest in it, shall limit or terminate the provisions of this Conservation Easement.
(m) Counterparts. The parties may execute this instrument in any number of counterparts, which shall, in the aggregate, be signed by all of the parties; each counterpart shall be deemed an original instrument as against any Party who has signed it. In the event of any disparity between the counterparts produced, the recorded counterpart shall be controlling.
13 . Mutual Indemnity. Each Party shall defend, hold harmless, protect and indemnify the other Party and its officers, employees, agents, contractors, representatives, heirs, successors and assigns, from and against any and all liabilities, penalties, costs, losses, damages, expenses (including, without limitation, reasonable attorneys’ fees and experts’ fees), causes of action, claims, demands, orders, liens or judgments (each a “Claim” and collectively, “Claims”), arising from or in any way connected with injury to or the death of any person, or physical damage to any property, resulting from any act, omission, condition or other matter related to or occurring on or
48 25424.00015\5782072.1
77 Agenda Item 6 January 21, 2011 about the Easement Area, due solely to the negligence of the indemnifying Party or any of its agents, employees or representatives.
49 25424.00015\5782072.1
78 Agenda Item 6 January 21, 2011
IN WITNESS WHEREOF Grantor and Grantee have executed this Conservation Easement as of the day and year first above written.
GRANTOR:
SAN DIEGUITO RIVER VALLEY REGIONAL OPEN SPACE PARK JOINT POWERS AUTHORITY.
BY: ______
NAME: ______
TITLE: ______
DATE: ______
STATE OF CALIFORNA ) ) COUNTY OF______)
On ______, ______, 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)
50 25424.00015\5782072.1
79 Agenda Item 6 January 21, 2011
CERTIFICATE OF ACCEPTANCE
This is to certify that the interest in real property conveyed by this Conservation Easement Deed by the San Dieguito River Valley Regional Open Space Park Joint Powers Authority, to the Escondido Union High School District is hereby accepted on the terms and conditions set forth in this Conservation Easement by the undersigned officer on behalf of the Escondido Union High School District.
GRANTEE:
ESCONDIDO UNION HIGH SCHOOL DISTRICT
By: ______Name:______Title: ______Date: ______
STATE OF CALIFORNA ) ) COUNTY OF______)
On ______, ______, 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)
ATTACHMENT 2 80 Agenda Item 6 January 21, 2011
AGREEMENT FOR PURCHASE OF A CONSERVATION EASEMENT AND ESCROW INSTRUCTIONS
This Agreement for Purchase of a Conservation Easement and Escrow Instructions (“Agreement”) is entered into as of between the San Dieguito River Valley Regional Open Space Park Joint Powers Authority (“Seller”) and the Escondido Union High School District (“Purchaser”) with reference to the following facts:
RECITALS
A. Seller is the owner of an approximately 32.62 acre parcel of land located in the City of Poway, San Diego County, State of California that is more particularly described in Exhibit A attached hereto and incorporated herein (“Property”);
B. Purchaser desires to buy and Seller desires to sell a Conservation Easement over a portion of the Property consisting of approximately 16.58 acres (“Conservation Easement”). The Conservation Easement will be conveyed by recordation of an easement in the form attached hereto as Exhibit B in favor of Purchaser, or other entity qualified to hold conservation easements designated by Purchaser. The Conservation Easement shall be over the portion of the Property shown on Exhibit B-1 attached hereto (“Easement Area”), and shall be deemed to satisfy Agency Permits requiring Purchaser to record a conservation easement on all mitigation sites for the Citracado High School Project;
C. Seller shall be responsible for Management of the Easement Area in accordance with the Conservation Easement and the Sycamore Westridge Preserve Habitat Management Plan (“Habitat Management Plan”) prepared by REC Consultants, Inc. (dated June 2009), attached hereto as Exhibit C, in exchange for payment of initial start up costs and endowment funding in accordance with the terms set forth below;
NOW, THEREFORE, the parties agree as follows:
TERMS AND CONDITIONS
Section 1
Purchase and Sale of Conservation Easement
1. The total Purchase Price for the 16.58 acre Conservation Easement shall be Thirty-Three Thousand Two Hundred Fifty Dollars and 00/100s ($33,250.00) per acre, resulting in a total purchase price of Five Hundred Fifty One Thousand Two Hundred Eighty Five Dollars and 00/100s ($551,285.00) (“Purchase Price”), payable as follows:
(a) An initial deposit of Five Thousand Dollars ($5,000.00) (“Deposit”) by Purchaser into escrow within seven (7) days of the date this Agreement is executed by all parties, evidenced by a check or money order payable to the title/ escrow company designated in Section 4.1 of this Agreement; and
(b) Remaining funds sufficient to cover the full Purchase Price shall be deposited into escrow by wire transfer or other method that ensures the funds are available for delivery to Seller on or before the Close of Escrow as defined in Section 4.1 below.
Section 2
52 ATTACHMENT 3 81 Agenda Item 6 January 21, 2011
Payment of Initial Start-Up Costs
2. In addition to the Purchase Price set forth above, Purchaser shall pay Seller Fifteen Thousand Two Hundred Ninety Dollars and 08/100s ($15,290.08) as compensation for its prorata share of initial management costs related to the Conservation Easement and the cost of mapping the Easement Area (“Start Up Costs”), payable as follows:
(a) Five Thousand Five Hundred and 00/100s ($5,500.00) of the Start Up Costs shall be deposited by Purchaser into escrow within seven (7) days of the date this Agreement is executed by all parties and shall be released to Seller to cover the cost of mapping the Easement Area. This initial portion of the Start Up Costs shall be non-refundable; and
(b) The balance of the Start Up Costs shall be deposited into escrow by wire transfer or other method that ensures the funds are available for delivery to Seller on or before the Close of Escrow as defined in Section 4.1 below
Section 3
Endowment Funding and Agreement to Manage Easement Area
3.1 Endowment Funding. In addition to the Purchase Price and Start Up Costs described above, Purchaser shall pay Seller an additional sum of Ninety Eight Thousand Six Hundred Fifty One Dollars and 00/100s ($98,651.00) for the purpose of funding an endowment to cover the ongoing cost of managing Easement Area in accordance with the terms and conditions of the Conservation Easement (“Endowment Funds”), payable as follows:
(a) Endowment Funds shall be deposited into escrow by wire transfer or other method that ensures the funds are available for delivery to Seller on or before the Close of Escrow as defined in Section 4.1 below.
3.2 Seller’s Fiduciary Duties. Seller shall set aside, hold, invest and disburse adequate endowment funds in trust, which Purchaser shall fund in accordance with Section 3.1 herein and the terms of the Conservation Easement between the Parties, solely for the purposes of preserving the conservation values of the Easement Area in perpetuity, Seller shall have a fiduciary duty to ensure that the endowment funds held in trust for the Easement Area are properly managed, and the principles of fiduciary duty outlined in the Conservation Easement, the Uniform Prudent Investor Act (California Probate Code sections 16045 – 16054), and obligations to account for funds under General Accepted Accounting Principles (GAAP), shall apply.
3.3 Agreement To Manage Easement Area. Subject to payment of the funds required by Sections 1 through 3 above, and commencing at the Close of Escrow for this transaction, Seller shall assume responsibility for management of the Easement Area in accordance with the terms of the Conservation Easement and the Habitat Management Plan. Seller’s management obligation shall be ongoing and in perpetuity, and Purchaser shall have no management responsibility for the Easement Area or obligation to pay additional funding for management, even if the cost of management exceeds income generated by the Endowment Funds.
Section 4
Escrow
4.1 An escrow for this transaction shall be opened at the office of Chicago Title Company,
53 ATTACHMENT 3 82 Agenda Item 6 January 21, 2011
Janine Hudson, Escrow Officer, 701 B Street, Suite 760, San Diego, CA 92101; telephone (619) 230-6366; fax (866) 265-1903 (“Title Company”). Escrow shall be deemed open on the date that a fully executed copy of this Agreement, along with the Five Thousand Dollar ($5,000.00) Deposit referenced in Section 1(a) above, is received by the Escrow Company (“Opening of Escrow”).
4.2 This Agreement shall constitute initial escrow instructions to Title Company. The parties shall execute a copy of Title Company’s general conditions and any additional escrow instructions reasonably required by Title Company to consummate the transaction provided for herein. However, such additional instructions shall not modify the provisions of this Agreement, unless instructions (i) state the modifications in full, and (ii) are signed by both parties. In the event of a conflict between the terms of this Agreement and the terms of Title Company’s general instructions, the terms of this Agreement shall control.
4.3 Unless the parties otherwise mutually agree in writing to an extension, the Escrow shall close (“Close of Escrow”), the Conservation Easement shall be recorded, and all sums required by this Agreement shall be paid no later than January 31, 2011.
Section 5
Conditions of Escrow
5.1 Purchaser Conditions. The obligation of Purchaser to purchase the Property is subject to completion of the tasks and satisfaction of all the conditions set forth below within the time period specified, or if not specified, on or before the Close of Escrow. If any of these conditions are not satisfied within the applicable time period provided below, or prior to the Close of Escrow (including any extensions) Purchaser may terminate this Agreement pursuant to Section 5.1(c). Purchaser may waive in writing any or all of the conditions, in whole or in part.
(a) Designation and Approval of Conservation Easement Area.
Seller shall have a meets and bounds legal description of the Easement Area prepared in substantial conformance with the area as shown on Exhibit B-1. Minor variations shall be allowed, provided the total Easement Area remains at least 16.58 acres.
(b) Approval of Title.
(i) Attached as Exhibit D hereto is Schedule B to the Title Policy for the Property, Order No. 930014582-U5O, which identifies recorded encumbrances and exceptions. The Conservation Easement conveyed to Purchaser shall be free and clear of all encumbrances not identified in Exhibit D, except as to additional exception and/or encumbrances (“Additional Exceptions”), if any, approved by Purchaser pursuant to the procedures set forth below:
(ii) At least twenty (20) days prior to the Close of Escrow, escrow shall prepare and deliver a preliminary report on the Easement Area, together with copies of all documents referred to in the report (collectively, “Preliminary Report”). Unless directed otherwise, the Preliminary Report shall be delivered to all parties Purchaser designates to receive notice in Section 11. Purchaser shall have fifteen (15) days from receipt of the Preliminary Report to report in writing any objections to an Additional Exception. Any Additional Exceptions to title to the Easement Area shown on the Preliminary Report shall be deemed to have been accepted by Purchaser unless objected to in writing by Purchaser to Seller within fifteen (15) days. However, notwithstanding anything contrary in this Section, Seller shall remove all monetary liens and encumbrances (except any statutory liens for nondelinquent real property taxes) prior to or at Close of Escrow. If Purchaser objects to any Additional Exceptions to the title to the
54 ATTACHMENT 3 83 Agenda Item 6 January 21, 2011
Property, and the Additional Exceptions are not removed before the Close of Escrow, all rights and obligations under this Agreement may, at the election of the Purchaser, terminate, and the Deposit shall be returned to Purchaser, unless Purchaser elects to purchase the Property subject to the exceptions.
(iii) After the Close of Escrow, Title Company shall issue to Purchaser or Purchaser's nominee of title to the Property, as evidenced by a standard form California Land Title Association (“CLTA”) title insurance policy, in the full amount of the purchase price, issued by Title Company, subject only to the exceptions shown on Exhibit D and any Additional Exceptions approved by Purchaser pursuant to Section 5(b)(i)(ii).
(c) Should any of the Purchaser Conditions specified in this Section 5.1 fail to occur before the Close of Escrow, Purchaser shall have the right, exercisable by the giving of written notice to the Title Company and to Seller, to cancel the escrow, terminate this Agreement, and recover any amounts paid to the Title Company on account of the Purchase Price less nonrefundable portions released to Seller and Escrow fees.
5.2 Seller Conditions. The Close of Escrow and Seller's obligation to sell the Property pursuant to this Agreement are conditioned on the performance by Purchaser of each obligation under this Agreement, including, without limitation, Purchaser's obligations to make payments described in Sections 1 through 3 within the time periods designated. Should these conditions fail to occur, then Seller shall have the right, exercisable by the giving of written notice to Title Company and to Purchaser, to cancel the escrow and terminate this Agreement.Section 6
Brokers' Commissions
Seller has contracted to pay a commission in the amount of six percent (6%) of the Conservation Easement Purchase Price to: Smith Properties, c/o Glenn Smith, 2516 La Costa Avenue, Carlsbad, California 92009.
Section 7
Expenses of Escrow
7. The expenses of the escrow described in this Section shall be paid in the following manner:
(a) The full cost of securing the title insurance policy described in Section 5.1(b)(iii) shall be paid by Purchaser.
(b) The cost of preparing, executing, and acknowledging any deeds or other instruments required to convey title of the Conservation Easement to Purchaser or its nominee shall be paid by Seller.
(c) The cost of recording a grant deed required to convey title to the Conservation Easement to Purchaser or its nominee shall be paid by Purchaser.
(d) Any tax imposed on the conveyance of title to the Property to Purchaser or his nominee under the Documentary Transfer Tax Act shall be paid by Purchaser.
(e) Escrow fees, excluding the cost of the title insurance policy required by this Agreement, shall be divided equally between Seller and Purchaser.
55 ATTACHMENT 3 84 Agenda Item 6 January 21, 2011
(f) The broker’s commission identified in Section 6 shall be paid by Seller.
Section 8
Access to Property During Escrow
Purchaser, or persons designated by Purchaser, shall have the right at all reasonable times to enter on the Property for the purpose of conducting non-destructive surveys, and studies of the Easement Area as Purchaser may require to ascertain the suitability of the Easement Area for Purchaser's purposes. Purchaser shall repair and replace any damage to the Property caused by any entry on the Property by Purchaser or any persons designated by Purchaser. Purchaser shall also indemnify and hold Seller harmless against any claims arising from Purchaser's or Purchaser's designated persons' entry on the Property, and against all costs, expenses, and liabilities incurred in or in connection with any claim or proceeding brought on a claim, including, but not limited to, attorney fees and court costs.
Section 9
Representations and Warranties
9.1 Seller Represents and Warrants as Follows:
(a) Seller has full power and authority to enter into this Agreement and to sell, transfer and convey all right, title and interest in and to the Easement Area in accordance with this Agreement.
(b) To the best of Seller's knowledge, the conveyance of the Conservation Easement in accordance with this Agreement will not violate any provision of State or local subdivision laws.
(c) To the best of Seller's knowledge, no one other than Seller, is or will be at Close of Escrow, in possession of any portion of the Easement Area.
(d) No suit, action or other proceedings or inquiries are pending, or to the best of Seller's knowledge, are threatened against any portion of the Easement Area, or against Seller that could effect Seller's title or authority to convey the Easement Area or the value or condition of the Property, or that could subject an owner of the Easement Area to liability.
(e) Neither the execution and delivery of this Agreement by Seller nor Seller’s performance of its obligations herein will constitute a breach or default under any agreement affecting the Property.
(f) To the best of Seller's knowledge, there are no encroachments by third parties on the Easement Area and Seller does not encroach upon the property of any third party.
(g) Except for those recorded encumbrances and exceptions identified on Exhibit D attached hereto, to the best of Seller's knowledge, there are and have been no:
(i) actual or impending public improvements or private rights or actions which will result in the creation of any liens upon the Easement Area, including public assessments or mechanics liens; or
(ii) uncured notices from any governmental agency with jurisdiction over the Easement Area notifying Seller of any violations of law, ordinance, rule or regulation in regard to the
56 ATTACHMENT 3 85 Agenda Item 6 January 21, 2011
Easement Area.
(i) To the best of Seller's knowledge, there has been no transfer of title or construction of improvements on the Easement Area that would trigger a supplemental property tax assessment, or if such an assessment has been triggered, the tax has been levied and paid.
(j) To the best of Seller's knowledge, there is not and has never been any:
(i) condition at, on, under or related to the Easement Area presently or potentially posing a significant hazard to human health or the environment, whether or not in compliance with law;
(ii) production, use, treatment, storage, transportation, or disposal of any “Hazardous Substance” (as defined hereinafter) on the Easement Area;
(iii) release or threatened release of any Hazardous Substance, pollutant or contaminant into, upon or over the Easement Area or into or upon ground or surface water at the Easement Area or within the immediate vicinity of the Easement Area;
(iv) Hazardous Substance stored on the Easement Area in underground tanks, pits, or ponds;
(v) asbestos-containing material incorporated into any buildings or interior improvements or equipment that may be part of the Easement Area or other assets to be transferred under this Agreement; or
(vi) electrical transformer or other item containing PCBs on the Easement Area or among the assets to be transferred under this Agreement.
The term “Hazardous Substance(s)” means any substance which is (1) defined as a hazardous substance, hazardous material, hazardous waste, pollutant or contaminant under any Environmental Law, (2) a petroleum hydrocarbon, including crude oil or any fraction thereof, (3) hazardous, toxic, corrosive, flammable, explosive, infectious, radioactive, carcinogenic, or reproductive toxicant, (4) regulated pursuant to any Environmental Law(s), or (5) any pesticide regulated under state or federal law.
The term “Environmental Law(s)” means each and every federal, state, and local law, statute, ordinance, regulation, rule, judicial or administrative order or decree, permit, license, approval, authorization or similar requirement of each and every federal, state and local governmental agency or other governmental authority, pertaining to the protection of human health and safety or the environment.
9.2 Purchaser Represents and Warrants as Follows:
(a) Purchaser has full power and authority to enter into this Agreement.
(b) Purchaser has conducted or will conduct an independent investigation with respect to the Easement Area and it suitability for its intended use as mitigation property. Except as set forth in this Agreement, the Habitat Management Plan or the Conservation Easement, Seller makes no warranties regarding the Property’s suitability for its intended conservation easement purposes.
57 ATTACHMENT 3 86 Agenda Item 6 January 21, 2011
Section 10
Assignment
This Agreement shall not be assigned by Purchaser without the prior written approval of Seller.
Section 11
Notices
11. All notices to be given under this Agreement shall be in writing and either:
(a) Sent by certified mail, return receipt requested, in which case notice shall be deemed delivered three (3) business days after deposit, postage prepaid in the United States Mail,
(b) Sent by a nationally recognized overnight courier, in which case notice shall be deemed delivered one (1) business day after deposit with this courier, or
(c) By telecopy or similar means, if a copy of the notice is also sent by United States Certified Mail, in which case notice shall be deemed delivered on transmittal by telecopier or other similar means provided that a transmission report is generated by reflecting the accurate transmission of the notices, as follows:
If to Purchaser:
San Dieguito River Park Attn: Richard Bobertz, Executive Director 18372 Sycamore Creek Road Escondido, CA 92025 (858) 674-2270 (Phone) (858) 674-2280 (Fax)
And
D. Wayne Brechtel, General Counsel Worden Williams, APC 462 Stevens Avenue, Suite 102 Solana Beach, CA 92075 (858) 755-6604 (Phone) (858) 755-5198 (Fax)
If to Seller:
Escondido Union High School District Attn: Thomas Clark, Coordinator of Facilities 302 North Midway Drive Escondido, CA 92027 (760) 291-3219 (Phone) (760) 739-7329 (FAX)
These addresses may be changed by written notice to the other party, provided that no notice of a change of address shall be effective until actual receipt by the parties of the notice. Copies of notices are for
58 ATTACHMENT 3 87 Agenda Item 6 January 21, 2011 informational purposes only, and a failure to give or receive copies of any notice shall not be deemed a failure to give notice.
Section 12
Attorney Fees
If either party commences an action against the other to enforce this Agreement, or because of the breach by either party of this Agreement, the prevailing party in the action shall be entitled to recover attorney fees and costs incurred in connection with the prosecution or defense of this action, including any appeal of the action, in addition to all other relief. Prevailing party within the meaning of this Section shall include, without limitation, a party who successfully brings an action against the other party for sums allegedly due or performance of covenants allegedly breached, or that party who obtains substantially the relief sought in the action.
Section 13
Liquidated Damages
13.1 IF PURCHASER FAILS TO CLOSE THE ESCROW FOR ANY REASON OTHER THAN THE MATERIAL BREACH OF SELLER OR THE TERMINATION OF THIS AGREEMENT PURSUANT TO SECTION 5.1(c), SELLER SHALL BE RELEASED FROM THE OBLIGATION TO SELL THE PROPERTY TO PURCHASER AND SHALL BE ENTITLED TO RECEIVE THE DEPOSIT IDENTIFIED IN SECTION 1(a) PLUS ALL INTEREST AS LIQUIDATED DAMAGES FOR THIS FAILURE. THE TITLE COMPANY SHALL DELIVER THE DEPOSIT TO SELLER ON FAILURE OF PURCHASER TO CLOSE THE ESCROW AS PROVIDED IN THIS AGREEMENT. THE PARTIES AGREE THAT IT WOULD BE IMPRACTICAL OR EXTREMELY DIFFICULT TO FIX ACTUAL DAMAGES IF PURCHASER FAILS TO CLOSE THE ESCROW, THAT THE FOREGOING AMOUNT IS A REASONABLE ESTIMATE OF THESE DAMAGES, AND THAT SELLER SHALL RETAIN THE SUMS SET FORTH IN THIS PROVISION AS SELLER'S SOLE AND EXCLUSIVE RIGHT TO DAMAGES. THE PARTIES WITNESS THEIR AGREEMENT TO THESE LIQUIDATED DAMAGES AND WAIVER OF SPECIFIC PERFORMANCE PROVISION BY INITIALING SECTION 13.
______/______[Initials of Purchaser and Seller]
13.2 After the disposition of the Deposit pursuant to the previous provision, the escrow shall be canceled and neither party shall then have any rights or responsibilities to the other, and any escrow cancellation fees shall be paid by Purchaser.
Section 14
Entire Agreement
Other than the Conservation Easement and Habitat Management Plan, this instrument contains the entire agreement of the parties; any previous understandings of the parties regarding the subject matter of this Agreement are expressly declared void and are superseded by this Agreement.
Section 15
Time of Essence
59 ATTACHMENT 3 88 Agenda Item 6 January 21, 2011
Time is of the essence for each condition, term, and provision in this Agreement.
Section 16
Counterparts
This Agreement may be executed in one or more counterparts. Each shall be deemed an original and all taken together shall constitute one and the same instrument. The execution of this Agreement is deemed to have occurred, and this Agreement shall be enforceable and effective only on the complete execution of this Agreement by the parties.
Section 17
Severability
If any term or provision of this Agreement shall, to any extent, be held invalid or unenforceable, the remainder of this Agreement shall not be affected.
Section 18
Waivers
A waiver or breach of a covenant or provision in this Agreement shall not be deemed a waiver of any other covenant or provision in this Agreement, and no waiver shall be valid unless in writing and executed by the waiving party. An extension of time for performance of any obligation or act shall not be deemed an extension of the time for performance of any other obligation or act.
Section 19
Construction
Headings at the beginning of each section and subsection are solely for the convenience of the parties and are not a part of and shall not be used to interpret this Agreement. The singular form shall include plural and vice versa. This Agreement shall not be construed as if it had been prepared by one of the parties, but rather as if both parties have prepared it. Unless otherwise indicated, all references to sections are to this Agreement. All exhibits referred to in this Agreement are attached to it and incorporated to it by this reference.
Section 20
Governing Law
This Agreement shall be governed and construed in accordance with California law.
Section 21
Authority of Parties
The parties warrant that the persons executing this Agreement on their behalf are authorized to do so, and on execution of this Agreement, this Agreement shall be valid and enforceable against Purchaser or
60 ATTACHMENT 3 89 Agenda Item 6 January 21, 2011
Seller.
Section 22
Promise to Maintain Easement Area
12. During the term of this Agreement, Seller promises not to do any of the following without Purchaser’s prior written approval:
(a) knowingly remove or permit the removal of any vegetation, soil or minerals from the Easement Area, or disturb or permit the disturbance of the existing contours and/or other natural features of the Easement Area or the archaeological resources located thereon; or
(b) knowingly cause or permit any dumping or depositing of any materials on the Easement Area, including, without limitation, garbage, “Hazardous Substances,” as hereinafter defined, construction debris or solid or liquid wastes of any kind.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
“Seller”: San Dieguito River Valley Regional Open Space Park Joint Powers Authority
Signature ______By: Richard Bobertz, Executive Director
AGREED AND ACCEPTED
“Buyer”: Escondido Union High School District
Signature ______By: Thomas Clark, Coordinator of Facilities
61 ATTACHMENT 3 90
SITE LOCATION Figure Sycamore Westridge Preserve 2
91 ATTACHMENT 4 92 ATTACHMENT 5 Agenda Item 10