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1 RECORDING REQUESTED BY: )
AND WHEN RECORDED MAIL TO: )
)
CITY OF SANTA CLARITA )
23920 Valencia Boulevard, Ste. 300 )
Valencia, CA 91355 )
)
Exempt from Recording Fee (Gov. Code, § 27383) )
Space Above Line for Recorder’s Use Only
OPEN SPACE MANAGEMENT AND MAINTENANCE AGREEMENT
This OPEN SPACE MANAGEMENT AND MAINTENANCE AGREEMENT
(“Agreement”) is made this ______ day of ________, 2022, by and between BLC TESORO LLC, a Delaware limited liability company (“BLC Tesoro”) and the CITY OF SANTA CLARITA, a political subdivision of the State of California (“City”), with reference to the following facts:
R E C I T A L S
A. BLC Tesoro is the owner and developer of that certain residential development project located in unincorporated Los Angeles County (the “County”) and known as “Tesoro Highlands” (the “Project”), which Project is the final phase of development of the Tesoro del Valle master planned community and includes the construction of 820 residential units and certain other uses within a total project area of approximately 1,275 acres (the “Project Site”).
B. The Project was approved by the County on November 7, 2018 by action of the County’s Regional Planning Commission as more fully described in Revised Vesting Tentative Tract Map TR51644 -1 (as amended on June 23, 2020 and June 15, 2021 ) and certain related approvals, including Conditional Use Permit No. 200600210, Discretionary Housing Perm it No. 2016001958 and Oak Tree Permit No. 201000 029 (the “Project Approvals” ), which Project Approvals were issued subject to certain conditions of approval (the “Conditions of Approval”).
C. In furtherance of the Condition of Approval No. 35, and as set forth in that certain Dedication Agreement by and between the City and BLC Tesoro dated as of __________, 202 2, the City and BLC Tesoro are entering into this Agreement to provide for the management and maintenance as open space, of certain real property consisting of approximately 770 acres of land currently located in the unincorporated County and depicted visually on Exhibit A -1 attached hereto (collectively, the “City Open Space Areas”). The City Open Space Areas include those areas visually depicted on Exhibit A-1 and legally described on Exhibit A-2 attached hereto as “Parcel 1 and Parcel 2” (712 acres).
D. As required by the Conditions of Approval and as set forth in the Dedication Agreement, additional lands around the perimeter of the development area on the Project Site will be identified and conveyed to the City following the completion of initial grading and the 072906\12678276v7
2 landscaping of perimeter slopes. These lands, which are visually depicted on Exhibit A-1 as “Open Space for Future Transfer to the City” (58 acres) are not currently a part of the City Open Space Areas and are not affected by this Agreement but, upon their conveyance to the City they will be added to this Agreement (and included within the City Open Space Areas) through an amendment hereto. A legal description of the “Open Space for Future Transfer to the City” will be created at such time.
E. In addition to requiring dedication of the City Open Space Areas, Condition of Approval No. 35 requires that a minimum of Fifty Thousand Dollars ($50,000) annually , subject to CPI increases, be permanently provided for the management and maintenance of the City Open Space Areas. These funds, which are described in the Conditions of Approval as the “Stewardship Funds,” will be provided through the “Stewardship Funding Mechanism” described more fully in Section 8(c) below.
F. Condition of Approval No. 11 requires BLC Tesoro to comply with certain mitigation measures set forth in that certain Mitigation Monitoring and Re porting Program adopted in accordance with the California Environmental Quality Act and incorporated by reference into the Conditions of Approval (“MMRP”).
G. The MMRP includes requirements (the “BLC Tesoro Mitigation Requirements”) for BLC Tesoro to undertake certain habitat-related improvements within the City Open Space Areas (the “Habitat Improvements”) and, following completion of the Habitat Improvements, to monitor and maintain such Habitat I mprovements for a five -year period , whi ch BLC Tesoro Mitigation Requirements are more fully described in the following habitat mitigation and monitoring plans and programs prepared by the Psomas and approved by the County (collectively, the “HMMPs”), including : (i) “Special Status Vegetation T ypes, Habitat Mitigation and Monitoring Program, Tesoro del Valle Phases B and C, Revised VTTM 51644 -1, Los Angeles County, California, EIR Mitigation Measure Bio-1”, dated January 25, 2021, (ii) Oak Tree Habitat Mitigation and Monitoring Plan, Tesoro del Valle Phases B and C, Revised VTTM 51644-1, Los Angeles County, California, EIR Mitigation Measure Bio -2” dated November 9, 2020 , (iii) Mariposa Lily Habitat Mitigation and Monitoring Plan, Tesoro del Valle Phases B and C, Revised VTTM 51644 -1, Los Angeles County, California, EIR Mitigation Measure Bio -3” dated November 9, 2020, and (iv) Western Spadefoot Translocation Program, Tesoro del Valle Phases B and C, Revised VTTM 51644-1, Los Angeles County, California, EIR Mitigation Measure Bio- 4” dated November 2020. Copies of each of the HMMPs are attached hereto and incorporated herein as Exhibit B.
H. As more fully set forth below, upon satisfaction of the BLC Tesoro Mitigation Requirements, including completion of the five-year monitoring period established for the Habitat Improvements, City will undertake the long -term maintenance and management of the Habitat Improvements as required by the HMMPs and more fully set forth in each of the HMMPs , and will provide certain reports to the California De partment of Fish and Wildlife (“CDFW”) as described more fully in the “LTMP” (defined below).
I. In addition to addressing the requirements of Conditions of Approval 35 and 11 , and as partly set forth in Mitigation Measure Bio -7, this Agreement is intended to satisfy certain requirements contained in that certain Lake or Streambed Alteration Agreement 1600 -2020-01- 072906\12678276v7
3 R5, Revision 3 dated January 28, 2021 (the “LSAA”), between BLC Tesoro and CDFW. the LSAA is attached hereto and incorporated herein as Exhibit C.
J. [Intentionally Left Blank]
K. [Intentionally Left Blank]
L. BLC Tesoro has by separate instruments recorded concurrently herewith conveyed to the City fee title to the City Open Space Areas subject to (i) an easement in favor of BLC Tesoro to conduct the BLC Tesoro Mitigation Requirements, a copy of which is attached hereto as Exhibit D (the “Mitigation Access Easement”); (ii) that certain Multi-Use Trail Easement granted by BLC Tesoro in favor of the County of Los Angeles, dated __________ and recorded in the Official Records of Los Angeles County as Instrument No. _______________ (the “Public Trail Easement”) affecting those portions of the City Open Space Areas described on attached Exhibit E and (iii) certain easements granted or to be granted by BLC Tesoro to DACA-CASTAIC LLC as required by that certain Joint Cooperation Agreement , dated as of August 10, 2017 , a memorandum of which was recorded in the Official Records of Los Angeles County on December 1, 2017, as Instrument No. 20171388438 (the “Tapia Easement”), a copy of which is attached hereto as Exhibit F The Mitigation Access Easement, the Public Trail Easement and the Tapia Easement are sometimes collectively referred to herein as the “Easements.” M. The City Open Space Areas are in a predominantly unimproved natural condition and possesses wildlife and habitat values of great importance to the City and the State of California.
The City Open Space Areas provide high quality habitat for numerous plant and wildlife specie s including the following special status species: slender mariposa lily ( Calochortus clavatus var. gracilis), club-haired mariposa lily, (Calochortus clavatus var. clavatus), Peirson’s morning-glory (Calystegia peirsonii ), Palmer’s grapplinghook ( Harpagonella palmeri ), Southern California legless lizard ( Anniella stebbinsi ), Santa Ana sucker (Catostomus santaanae), northern harrier (Circus cyaneus ), white -tailed kite ( Elanus leucurus ), unarmored threespine stickleback (Gasterosteus aculeatus willia msonii), arroyo chub ( Gila orcutti ), loggerhead shrike ( Lanius ludovicianus), coast horned lizard ( Phrynosoma blainvillii ), and western spadefoot ( Spea hammondii). Further, the City Open Space Areas contain the following vegetation types: alluvial scrub, elderberry scrub, chamise chaparral, chamise chaparral–annual grassland, sage scrub, sage scrub–annual grassland, chamise chaparral –sage scrub, coast live oak woodland, coast live oak – blue elderberry scrub, holly-leaf cherry woodland, coast live oak–holly-leaf cherry woodland, and mixed chaparral–alluvial scrub–annual grassland. Individually and collectively, these wildlife and habitat values comprise the “Conservation Values” of the Property.
N. As more fully set forth below, City agrees to accept title to the City Open Space Areas and, subject to the “Easements” (as defined above and all three of which instruments shall be deemed to be superior at all times to the provisions of this Agreement), to maintain and manage the City Open Space Areas predominantly in their natural, scenic, and open space condition (“Natural Condition”) as envisioned by California Civil Code section 815.
O. City’s maintenance and management of the City Open Space Areas in their Natural Condition shall be in accordance with that certain Long-Term Management Plan – 072906\12678276v7
4 Tesoro del Valle Residential Development – City Open Space Areas, Psomas dated August 19, 2021, a copy of which is attached hereto as Exhibit G (the “LTMP”).
P. BLC Tesoro and the City have entered into a pre-annexation agreement, dated ___________, 2022, pursuant to which the Project and the City Open Space Areas may be annexed to the City. Until such annexation has been completed, the County will continue to have regulatory authority over the Project in accordance with the Project Approvals and the Conditions of Approval. Accordingly, given that this Agreement is being entered into in accordance with Condition 35 of the Conditions of Approval, among other Conditions of Approval, the County shall be deemed to be an intended third-party beneficiary of the rights of BLC Tesoro under this Agreement. County’s third-party beneficiary status under this Agreement shall terminate upon completion of annexation of the Project, and the City Open Space Areas, to the City.
Q. This Agreement shall constitute a mitigation agreement within the meaning of California Government Code section 65965(f).
AGREEMENT
In consideration of the above recitals and the mutual covenants, terms, conditions, and restrictions contained herein, BLC Tesoro and the City hereby agree as follows:
1. Purposes.
(a) The purposes of this Agreement are to ensure the City Open Space Areas will be retained forever in their “Natural Condition” (as defined in Recital N above) and to prevent any use of the City Open Space Areas that will impair or interfere with the Conservation Values of the City Open Space Areas. BLC Tesoro and the City intend that this Agreement will confine the use of the City Open Space Areas to activities that are consistent with such purposes, including, without limitation, those involving the preservation, restoration, and enhancement of nati ve species and their habitats.
(b) Notwithstanding anything to the contrary contained herein, any use or activity that is consistent with the LTMP or the Easements shall be deemed to be consistent with the purposes of this Agreement and shall be deemed not t o impair or interfere with the Conservation Values of the City Open Space Areas.
2. Rights and Obligations of City In General. To accomplish the purposes of this Agreement, City shall have the following rights and obligations:
(a) To preserve and protect the Conservation Values of the City Open Space Areas, including the Habitat Improvements, in perpetuity; (b) To prevent any activity on or use of the City Open Space Areas that is inconsistent with the purposes of this Agreement and to require the restoration of su ch areas or features of the property that may be damaged by any act, failure to act, or any use or activity that is inconsistent with the purposes of this Agreement; and 072906\12678276v7
5 (c) To require that all mineral, air and water rights as City deems necessary to preserve, protect, and sustain the biological resources and Conservation Values of the City Open Space Areas shall remain a part of and be put to beneficial use upon the City Open Space Areas, consistent with the purposes of this Agreement.
3. Development Rights. Except as otherwise set forth in the LTMP or the Easements, all present and future development rights appurtenant to, allocated, implied, reserved or inherent in the City Open Space Areas are hereby terminated and extinguished, and may not be used on or transferred to any portion of the City Open Space areas , nor any other property adjacent or otherwise.
4. Prohibited Uses. Except as otherwise set forth herein, any activity on or use of the City Open Space Areas that is inconsistent with the purposes of this Agreement is prohibited.
Without limiting the generality of the foregoing, and subject to the terms of or except as otherwise set forth in the LTMP or the Easements, the following uses and activities are expressly prohibited:
(a) Unseasonable watering; use of chemical fertilizers, pesticides, biocides, herbicides, rodenticides, fungicides or other agents; incompatible fire protection activities; and any and all other activities and uses which may adversely affect the Conservation Values of the City Open Space Areas or otherwise interfere with the purposes of this Agreement; (b) Use of off-road vehicles and use of any other motorized vehicles except on existing roadways and except in emergencies;
(c) Agricultural activity of any kind, except grazing for vegetation management; (d) Recreational activities including, but not limited to, horseback riding, biking, hunting or fishing, except to the extent they are allowed under the Public Trail Easement; (e) Commercial, industrial, institutional, or residential structures or uses; (f) Any legal or de facto division, subdivision or partitioning of the City Open Space Areas, including a request for a certificate of compliance pursuant to the Subdivision Map Act (Gov. Code section 66499.35);
(g) Construction, reconstruction, expansion, location, relocation, installation, or placement of any building, billboard or sign (other than trail signage, emergency locator system signage or other public benefit communications) , or any other structure or improvement of any kind;
(h) Deposit or accumulation of soil, trash, ashes, refuse, waste, bio-solids or any other materials;
(i) Planting, introduction, or dispersion of non -native or exotic plant or animal species;
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6 (j) Filling, dumping, excavating, draining, dredging, mining, drilling, removing or exploring for or extracting minerals, loam, soil, sands, gravel, rocks or other material on or below the surface of the City Open Space Areas, or granting or authorizing surface entry for any such purpose;
(k) Altering the surface or general topography of the City Open Space Areas , including building new roads or trails, or paving or otherwise covering any portion of the City Open Space Areas except as permitted under the Public Trail Easement or as specified under subsection 4(l) below;
(l) Removing, disturbing, altering, destroying, o r cutting of trees, shrubs or other vegetation, except as required by law , and except as necessary for ( i) fire breaks, ( ii) maintenance of existing trails or roads, or (iii) prevention or treatment of disease; (m) Manipulating, impounding or altering any natural water course, body of water or water circulation on the City Open Space Areas, and activities or uses detrimental to water quality, including but not limited to degradation or pollution of any surface or sub-surface waters; (n) Transferring, encumbering, selling, leasing, or otherwise separating the mineral, air, or water rights for the City Open Space Areas; changing the place or purpose of use of the water rights; abandoning or allowing the abandonment of, by action or inaction, any water or water rights, ditch or ditch rights, spring rights, reservoir or storage rights, wells, ground water rights, or other rights in and to the use of water historically used on or otherwise appurtenant to the City Open Space Areas, including but not limited to: (1) riparian water rights; (2) appropriative water rights; (3) rights to waters which are secured under contract with any irrigation or water district, to the extent such waters are customarily applied to the City Open Space Areas; and (4) any water from wells that are in existence or may be constructed in the future on the Property; and (o) Any activity or use that may violate or fail to comply with relevant federal, state, or local laws, regulations, or policies applicable to the City Open Space Areas or the activity or use in question.
5. City’s Reserved Rights. City reserves to itself, and to its personal representatives, heirs, successors, and assigns, all rights accruing from its ownership of the City Open Space Areas, including the right to engage in or to permit or invite others to engage in all uses of the City Open Space Areas, that are not expressly prohibited or limited by, and are consistent with the purposes of, this Agreement.
6. BLC Tesoro’s Reserved Rights. As more fully set forth in the Mitigation Access Easement, BLC Tesoro have the right to enter onto the City Open Space Areas to perform the BLC Tesoro Mitigation Requirements as set forth in the HMMPs as they may be amended from time to time. Nothing in this Agreement shall be deemed to prevent or impair BLC Tesoro ’s ability develop and operate any or all portions of the Project outside of the City Open Space Areas as set forth in the Project Approvals and the Conditions of Approval, as they may be amended from time to time, even if such development or operation results in direct or indirect impacts to the City Open Space Areas.
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7 7. City’s Duties. To accomplish the purposes of this Agreement, and not in limitation of any other obligation of City hereunder or under applicable law, City shall:
(a) Maintain and manage the City Open Space Areas, inc luding the Habitat Improvements, in their Natural Condition and in accordance with any applicable requirements of the MMRP, the LSAA, the HMMPs or the LTMP.
(b) Repair and restore , or pay for the repair and restoration of, any and all damage to the City Open Space Areas, including the Habitat Improvements, that may be caused directly or indirectly by the City [or any third party other than BLC Tesoro or its agents, employees or contractors] prior to BLC Tesoro’s completion of the BLC Tesoro Mitigation Requireme nts, including expiration of the monitoring period established for the Habitat Improvements as confirmed by CDFW (i.e., five years or until such time as performance standards have been met) (the “Monitoring Periods” ); provided, however, that City shall not engage in any repair or restoration work with respect to the Habitat Improvements without first securing the consent of BLC Tesoro to City’s plan for repair or restoration;
(c) Upon completion by BLC Tesoro of the BLC Tesoro Mitigation Requirements, including expiration of the Monitoring Periods, perform all long-term management, maintenance, monitoring and reporting obligations set forth in each HMMP with respect to the Habitat Improvements described in such HMMP and in accordance with the LTMP; and (d) Allow access to the City Open Space Areas by CDFW or (until such time as the Project has been annexed to the City) the County (collectively, the “Regulatory Agencies”) as requested by either such Regulatory Agency to inspect the City Open Space Areas to en sure compliance with the permits or approvals issued by such Regulatory Agency; and (e) Secure any and all applicable governmental permits and approvals required for any activity or use undertaken or allowed by City within the City Open Space Areas as required by applicable federal, state, local and administrative agency statutes, ordinances, rules, regulations, orders or requirements.
8. BLC Tesoro Financial Obligations.
(a) BLC shall have sole financial responsibility for implementation of the BLC Tesoro Mitigation Requirements in accordance with the HMMPs and the Regulatory Permits (the “Mitigation Costs”) until such time as the Monitoring Periods have concluded, at which time City shall assume responsibility, including financial responsibility, for the long-term management and maintenance of the Habitat Improvements.
(b) Except as set forth in subsection (a) abov e, City shall at all times have sole responsibility, including financial responsibility, for the ownership, operation, maintenance, repair and stewardship of the City Open Space Areas as set forth in the HMMPs and the LTMP (collectively, the “Open Space Stewardship”); provided, however, that the funding of the Public 072906\12678276v7
8 Trail System shall be as set forth in that certain p re-annexation agreement between the City and BLC Tesoro, dated _____________, 2020 (the “Pre-Annexation Agreement”). (c) City acknowledges and agrees that the costs of the City’s Open Space Stewardship under subsection (b) above (the “Stewardship Costs”) will adequately be covered through the establishment by BLC Tesoro, as required under the Project Approvals , of a “CFD” (defined below) to provide funding in the amounts of $59,000 in initial stewardship costs that have been or will be paid by BLC Tesoro to City upon conveyance to the City of the City Open Space Areas and $50,000/year thereafter (subject to an annual CPI increase) commencing upon the first anniversary of conveyance to the City of the City Open Space Area (collectively, the “Stewardship Funds”). With respect to the annual payments described in the foregoing sentence, and as more fully set forth in the Pre -Annexation Agreement, (i) BLC intends to form a Mello -Roos Community Facilities District (“CFD”) with the California Municipal Finance Authority (CMFA) that will include a separate service special tax over the Project to be levied in perpetuity to fund the management and maintenance of the open space as described above and (ii) City has agreed to consider approval of a resolution to allow the CFD to be established as described above. The funds so generated will be provided to the City to cover anticipated annual Stewardship Costs after the first year of ownership by the City.
(d) In no event shall BLC Tesoro have any financial responsibility for the Open Space Stewardship, or any other costs associated with the City Open Space Areas, other than (i) the Mitigation Costs; (ii) initial establishment of the CFD as described above ; or (iii) costs associated with any “Claim” for which BLC Tesoro is responsible under Section 9 or 10 below.
9. Hold Harmless.
(a) BLC Tesoro and its successors and assigns shall hold harmless, indemnify, and defend the City and its officials, officers, employees, agents, contractors, and representatives (collectively “City Indemnified Parties”) from and against any and all liabilities, penalties, costs, losses, damages, expenses (including without limitation, reasonable attorneys’ and experts’ fees), causes of acti on, claims, demands, orders, liens or judgments , including, without limitation, liability arising in connection with personal injury, wrongful death or property damage (each a “Claim” and, collectively, “Claims”), arising from or in any way connected with any act, omission, condition, or other matter related to or occurring on or about the City Open Space Areas, caused by BLC Tesoro or its successors or assigns or its or their agents, contractors or employees.
If any action or proceeding is brought against any of the City Indemnified Parties by reason of any Claim to which the indemnification in this Subsection 9(a) applies, then at the election of and upon written notice from such City Indemnified Party, BLC Tesoro and its successors and assigns shall defend such action or proceeding by counsel reasonably acceptable to the applicable City Indemnified Party or reimburse the City Indemnified Party for all expenses (including, without limitation, reasonable attorneys’ and experts’ fees) incurred in defending the action or proceeding. (b) City and its successors and assigns shall hold harmless, indemnify, and defend BLC Tesoro and its directors, officers, employees, agents, contractors, and representatives (collectively “BLC Tesoro Indemnified Parties” ) from and against any and all liabilities, penalties, costs, losses, damages, expenses (including without limitation, reasonable attorneys’ and experts’ fees), causes of action, claims, demands, orders, liens or judgments, including, without 072906\12678276v7
9 limitation, liability arising in connection with personal injury, wrongful death or property damage (each a “Claim” and, collectively, “Claims”), arising from or in any way connected with any act, omission, condition, or other matter related to or occurring on or about the City Open Space Areas, caused by City or any other person other than BLC Tesoro or its successors or assigns or its or their agents, contractors or employees. If any action or proceeding is brought against any of the BLC Tesoro Indemnified Parties by reason of any Claim to which the indemnification in this Subsection 9(b) applies, then at the election of and upon written notice from such BLC Tesoro Indemnified Party, City and its successors and assigns shall defend such action or proceeding by counsel reasonably acceptable to the applicable BLC Tesoro Indemnified Party or reimburse the BLC Tesoro Indemnified Party for all expenses (including, without limitation, reasonable attorneys’ and experts’ fees) incurred in defending the action or proceeding.
10. Hazardous Materials.
(a) BLC Tesoro represents and warrants that, to BLC Tesoro’s knowledge, there has been no release or threatened release of “Hazardous Materials ” (defined below) or underground storage tanks existing, generated, treated, stored, used, releas ed, disposed of, deposited or abandoned in, on, under, or from the City Open Space Areas , or transported to or from or affecting the City Open Space Areas.
(b) Without limiting the obligations of BLC Tesoro under Section 9(a) above, BLC Tesoro hereby releases and agrees to indemnify, protect and hold harmless the City Indemnified Parties against any and all Claims arising from or connected with any Hazardous Materials or underground storage tanks present, alleged to be present, releas ed in, from or about, or otherwise associated with the City Open Space Areas at any time after it acquired ownership of the City Open Space Areas , provided, however , that this release and indemnification shall be inapplicable to the City Indemnified Partie s with respect to any Hazardous Materials placed, disposed or released by any of the City Indemnified Parties. This release and indemnification includes, without limitation, Claims for (i) injury to or death of any person or physical damage to any property; and (ii) the violation or alleged violation of, or other failure to comply with, any “Environmental Laws” (defined below). If any action or proceeding is brought against any of the City Indemnified Parties by reason of any Claim to which the indemnification in this Section 10(b) applies then, at the election of and upon written notice from such City Indemnified Party, BLC Tesoro and its successors and assigns shall defend such action or proceeding by counsel reasonably acceptable to the applicable City Indemnified Party or reimburse the City Indemnified Party for all expenses (including, without limitation, reasonable attorneys’ and experts’ fees) incurred in defending the action or proceeding.
(c) The term “Hazardous Materials” includes, without limitation, ( i) material that is flammable, explosive or radioactive; ( ii) petroleum products, including by -products and fractions thereof; and (iii) hazardous materials, hazardous wastes, hazardous or toxic substances, or related materi als defined in CERCLA; Resource Conservation and Recovery Act (42 U.S.C. 6901 et seq.); 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 .); th e Hazardous Substance Account Act (California Health & Safety Code section 25300 et seq.), and 072906\12678276v7
10 in the regulations adopted and publications promulgated pursuant to them, or any other applicable Environmental Laws now in effect or enacted after the date of this Agreement. (d) 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 enviro nment or Hazardous Materials. BLC Tesoro’s activities upon and use of the City Open Space Areas by BLC Tesoro, its agents, employees, invitees and contractors will comply with all Environmental Laws.
11. Transfers. City may assign its rights and delegate its obligations under this Agreement only to a party authorized to enter into mitigation agreements under Government Code section 65965, and only with the prior written approval of BLC Tesoro. In the event of any such assignment, which shall be recorded in the official records of the County of Los Angeles, the City shall concurrently transfer to such assignee any and all funds representing any or all of the Minimum Annual Commitment provided by BLC Tesoro Notices. All notices or other communications required or permitted under this Agreement shall be given in writing and shall be personally delivered (including by means of professional messenger service), sent by overnight courier, or sent by registered or certified U.S. mail, postage prepaid return receipt requested to the addresses set forth below. All notices sent by U.S. mail shall be deemed received five (5) days after the date of deposit with the United States Postal Service, and all notices sent by other means permitted herein shall be deemed receiv ed on the date delivered. Notice may also be given by electronic mail transmission (“ E-Mail”) to any party at the respective E -Mail addresses listed below, provided that notice is also concurrently given by one of the other methods authorized above. An E-Mail delivered after 5:00 P.M. Pacific Time on any business day or anytime on the weekend or a legal holiday shall be deemed delivered on the next business day. Either of the parties may change their addresses by providing written notice thereof to the o ther parties in the manner set forth above without the need to amend this Agreement.
To BLC Tesoro: Newport Pacific Land
100 Bayview Circle, Ste. 240
Newport Beach, CA 92660
Attn: John Patterson
Telephone: (949) 945-2290
Email: [email protected]
With a copy to: Cox, Castle & Nicholson
50 California Street, 32d Floor
San Francisco, California 92614
Attn: Clark Morrison
Telephone: (415) 262-5113
Email: [email protected]
To City: City of Santa Clarita
23920 Valencia Boulevard, Ste. 300
Santa Clarita, California 91355
Atten: Kenneth W. Striplin
Tel: 661-255-4905
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11 Email: [email protected]
12. Amendment. BLC Tesoro and the City may amend this Agreement only by mutual written agreement . Any such amendment shall be consistent with the stated p urposes of this Agreement, shall not affect its perpetual duration, and shall be recorded in the Official Records of Los Angeles County, California.
13. General Provisions.
(a) Controlling Law. The laws the State of California, disregarding the conflict of laws principles of such state, shall govern the interpretation and performance of this Agreement. (b) Liberal Construction. Any general rule of construction to the contrary notwithstanding, this Agreement shall be liberally construed in favor of and to effect the purposes of this Agreement set forth in Section 1 and the policy and purpose set forth in California Civil Code Section 815 et seq . If any provision in this instrument is found to be am biguous, an interpretation consistent with the purposes of this Agreement that would render the provision valid shall be favored over any interpretation that would render it invalid. (c) Change of Conditions . If one or more of the purposes of this Agreement may no longer be accomplished, such failure of purpose shall not be deemed sufficient cause to terminate the entire Agreement as long as any other purpose of the Agreement may be accomplished. In addition, the inability to carry on any or all of the permit ted uses, or the unprofitability of doing so, shall not impair the validity of this Agreement or be considered grounds for its termination or extinguishment.
(d) Severability. If a court of competent jurisdiction voids or invalidates on its face any provision of this Agreement, such action shall not affect the remainder of this Agreement.
If a court of competent jurisdiction voids or invalidates the application of any provision of this Agreement to a person or circumstance, such action shall not affect the application of the provision to other persons or circumstances.
(e) Entire Agreement. This instrument together with the attached exhibits and any documents referred to herein sets forth the entire agreement of the parties with respect to the Agreement and sup ersedes all prior discussions, negotiations, understandings, or agreements relating to the Agreement. No alteration or variation of this instrument shall be valid or binding unless contained in an amendment signed by both parties. (f) Successors and Assigns. The covenants, terms, conditions, and restrictions of this Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns and shall constitute a servitude running in perpetuity with the City Open Space Areas.
(g) 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.
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12 (h) Counterparts. The parties may execute this instrument in two or more counterparts, which shall, in the aggregate, be signed by all 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. (i) Exhibits. All Exhibits referred to in this Agreement are attached and incorporated herein by reference.
(j) Warranty. BLC Tesoro represents and warrants that, to BLC Tesoro ’s knowledge, and except for the Mitigation Access Easement, the Public Trail Easement and the Conservation Easement, or as otherwise disclosed to the City in a title report delivered before the execution of this Agreement, there are no outstanding mortgages, liens, encumbrances or other interests in the City Open Space Areas (including, without limitation, mineral interests) which have not been expressly subordinated to this Agreement, and that the City Open Space Areas are not subject to any other Agreement. BLC Tesoro makes n o representations or warranties concerning the existence, character or nature of any water or water rights that may be appurtenant to the City Open Space Areas.
(k) Effective Date. This Agreement shall become effective upon its recordation in the Official Records of Los Angeles County, California. (signatures on following pages)
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13 Signature page to
OPEN SPACE MANAGEMENT AND MAINTENANCE AGREEMENT
IN WITNESS WHEREOF BLC Tesoro and the City have executed this Agreement as of the day and year first above written and have agreed to be bound by the terms and provisions hereof.
BLC TESORO LLC,
a Delaware limited liability company
By:
Name:
Title:
By:
Name:
Title:
CITY OF SANTA CLARITA,
a California municipal corporation
By:
Name:
Title:
APPROVED AS TO FORM:
By:
Name:
Title: City Attorney
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14 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF
On , , before me,
(here insert name and title of the officer)
personally appeared
,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
072906\12678276v7
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF
On , , before me,
(here insert name and title of the officer)
personally appeared
,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
072906\12678276v7
Exhibit s A-1 and A -2
City Open Space Areas
[See Attached]
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Exhibit B
HMMPs
[See Attached]
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Exhibit C
LSAA
[See Attached]
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Exhibit D
Mitigation Access Easement
[See Attached]
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Exhibit E
Public Trail Easement
[See Attached]
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Exhibit F
Tapia Easement
[See Attached]
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Exhibit G
LTMP
[See Attached]