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Item 1.8 - Acquisition of Real Property at Van Dam Peak for Open Space G`� OF ,•Lpik APPROVED City of Poway APPROVED AS AMENDED ❑ yY:, (SEE MINUTES) COUNCIL AGENDA REPORT DENIED 0 9i�. n+s. co� REMOVED ❑ CONTINUED RESOLUTION NO. 11-ppq DATE: February 19, 2019 TO: Honorable Mayor and Members of the City Council • FROM: Robed Manis, Development Services Director CONTACT: Marie Sanders, Senior Management Analyst 1� (858) 668-4637 I msanders@poway.org l�V SUBJECT: Acquisition of Real Property at Van Dam Peak for Open Space, APNs #316-020-04-00, #316-020-05-00, #316-020-20-00, and #316-020-21-00 Summary: It has been the goal of the City Council and the Development Services Department to acquire open space in key areas. Staff was notified by The Trust for Public Land (TPL) that a private landowner is interested in selling their property at Van Dam Peak in western Poway. TPL has applied for grants on the City's behalf to purchase the property for open space. The four parcels total 162.31 acres. The fair market value of the parcels is $1,625,000. Recommended Action: It is recommended that the City Council: 1) Adopt a resolution, Attachment A, authorizing entering into a grant agreement and authorizing the acquisition of real property, APNs #316-020-04-00, #316-020-05-00, #316-020-20-00, and #316-020-21-00 for open space; and 2)Authorize the City Manager to execute the documents necessary to complete the acquisition. Discussion: A key objective of the Poway Subarea Habitat Conservation Plan (PSHCP) is to maintain viable populations of biological resources. The PSHCP establishes criteria for developments to mitigate impacts to biologically sensitive lands. Mitigation can occur through the preservation of similar habitat on or off-site or the payment of an in-lieu fee. The per acre in-lieu fee is established by City Council resolution and is currently $17,000 per acre. This fee amount has been in effect since 2008. There is currently $1,012,241.11 in the Habitat In-Lieu Fee Fund. In 2016 a staff member from TPL contacted the City stating that they were working with a private landowner who is interested in selling their property consisting of four parcels at Van Dam Peak totaling 162.31 acres. The PSHCP considers Van Dam Cornerstone a Proposed Resource Protection Area of high preservation value. Loss of its biological resources, including its linkage and corridor connections, would irreparably damage preserve design and could not be mitigated. The subject property is located between existing public lands (the California Department of Fish and Wildlife's 150-acre Meadowbrook Ecological Reserve to the east and the City's 141-acre Van Dam Peak property to the west) and would create more than 450 acres of contiguous public open space. A location map of the four parcels is provided as Attachment B. The City partnered with TPL to submit applications to the California Natural Resources Agency (CNRA) requesting $500,000 in Environmental Enhancement and Mitigation Program (EEMP) 1 of 68 February 19, 2019, Item #1.8 Acquisition of Real Property in Van Dam Peak for Open Space February 19, 2019 Page 2 funds and to the California Department of Fish and Wildlife (CDFW), via the Wildlife Conservation Board (WCB), requesting $1,000,000 in Section 6 grant funds. The City has committed $125,000 from the Habitat In -Lieu Fee Fund to purchase the parcels. The total purchase price of the four parcels is $1,698,000, including all fees. Remaining funds needed for the acquisition, beyond the $1,625,000, will be paid by TPL. TPL will purchase the property from the property owner and the City will immediately purchase the property from TPL using the grant funds and the $125,000 of Habitat In -Lieu Fee funds. In May 2018, as part of the grant application process, TPL hired Anderson & Brabant, Inc. to conduct an appraisal of the parcels which estimated the land value to be $1,625,000. The appraisal was subsequently approved by the Department of General Services — Real Estate Services Division and CNRA on October 3, 2018. On March 21, 2018 CNRA awarded the City the EEMP grant of $500,000 that was funded by the California Transportation Commission. The CNRA Grant Agreement is provided as Attachment C. The CDFW Section 6 grant of $1,000,000 was tentatively approved on February 6, 2019. Final approval and award of the grant by the WCB is scheduled for March 7, 2019. The WCB grant agreement is provided as Attachment D. In order for the WCB to award the grant funds, the resolution (Attachment A) must be approved by the City Council and submitted before March 7. In January 2019, a copy of the proposed Purchase and Sale Agreement between the City and TPL for the purchase of the property was provided to the City by TPL and has been reviewed by staff and the City Attorney. A copy of the Purchase and Sale Agreement is provided as Attachment E. Escrow is scheduled to close by April 30, 2019. Environmental Review: This item is not subject to CEQA review. Fiscal Impact: Acquisition of the parcels for the transaction requires a $125,000 appropriation from the Habitat Mitigation In -Lieu unappropriated fund balance (F2520-89010) to the Sensitive Lands Acquisition project (PRK0010-30). Public Notification: Public Notification is not required for this item. Attachments: A. Resolution B. Location Map of Real Property C. Grant Agreement with the California Natural Resources Agency D. Grant Agreement with the Wildlife Conservation Board E. Purchase and Sale Agreement for Real Property with The Trust for Public Land 2 of 68 February 19, 2019, Item #1.8 Acquisition of Real Property in Van Dam Peak for Open Space February 19, 2019 Page 3 Reviewed/Approved By: Reviewed By: Wendy Kaserman Assistant City Manager Alan Fenstermacher City Attorney Approved By: J,A 19�b�1L.V f I V� Tina M. White City Manager 3 of 68 February 19, 2019, Item #1.8 RESOLUTION NO. 19- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF POWAY, CALIFORNIA, AUTHORIZING ENTERING INTO A GRANT AGREEMENT WITH THE WILDLIFE CONSERVATION BOARD AND AUTHORIZING THE ACQUISITION OF ALL OF ASSESSOR'S PARCEL NUMBERS 316-020-04, 316-020-05, 316-020-20, AND 316-020-21 TOTALING APPROXIMATELY 162.31 ACRES IN SAN DIEGO COUNTY Whereas, the owner of four parcels totaling approximately 162.31 acres has offered to sell the property to the Trust for Public Lands (TPL) for open space purposes; Whereas, the property is part of the Van Dam Cornerstone and identified in the Poway Subarea Habitat Conservation Plan as a resource protection area of high preservation value; Whereas, TPL is in negotiations with the property owner to purchase the property for open space purposes; Whereas, TPL has applied on the City's behalf for a Section 6 grant from the California Wildlife Conservation Board (WCB) in the amount of $1,000,000; Whereas, the City will purchase the property from TPL using grant funds; and Whereas, the WCB is scheduled to consider award of the grant at their March 7, 2019 meeting. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Poway hereby: Section 1: FINDS that acquisition ofthe identified property is exempt from the provisions of the California Environmental Quality Act; Section 2: FINDS that the identified property possesses high ecological and habitat value; Section 3: FINDS that the use of referenced grant funds for acquisition of the identified property is an appropriate expenditure; Section 4: ADOPTS the staff report and recommendation for this item; Section 5: AUTHORIZES the execution of California Wildlife Conservation Board Grant Agreement for Acquisition of Fee Interest number SG1802SS and the acceptance of grant funds from the listed agencies for the purpose of acquisition of the identified property; Section 6: AUTHORIZES the acceptance of fee title to the identified property; and Section 7: AUTHORIZES the City Manager to do any and all acts necessaryto carry out this resolution and any recommendations made by the Governing Board. 4 of 68 ATTACHMENT A February 19, 2019, Item #1.8 Resolution No. Page 2 PASSED, ADOPTED AND APPROVED by the City Council of the City of Poway at a regular meeting this 1911 day of February 2019. Steve Vaus, Mayor ATTEST: A. Kay Vinson, Interim City Clerk STATE OF CALIFORNIA ) ) SS COUNTY OF SAN DIEGO ) I, A. Kay Vinson, Interim City Clerk of the City of Poway, California, do hereby certify under penalty of perjury that the foregoing Resolution No. 19- was duly adopted by the City Council at a meeting of said City Council held on the 19th day of February 2019, and that it was so adopted by the following vote: AYES: NOES: ABSENT: DISQUALIFIED: A. Kay Vinson, Interim City Clerk City of Poway 5 of 68 February 19, 2019, Item #1.8 6 of 68 ATTACHMENT B February 19, 2019, Item #1.8 STATE OF CALIFORNIA NATURAL RESOURCES AGENCY GRANT AGREEMENT GRANTEE NAME: City of Poway PROJECT TITLE: Van Dam Cornerstone Acquisition AUTHORITY: Streets and Highways Code Section 164.56 PROGRAM: Environmental Enhancement and Mitigation Program AGREEMENT NUMBER: E13712-0 TERM OF LAND TENURE: Perpetuity PROJECT PERFORMANCE PERIOD IS: 01/01/2019 to 05/01/2020 Under the terms and conditions of this agreement, the applicant agrees to complete the project as described in the project scope set forth in Exhibit A and any subsequent amendments, and the State of California, acting through the Natural Resources Agency pursuant to Streets and Highways Code Section 164.56, agrees to fund the project up to the total grant amount indicated. PROJECT DESCRIPTION: See project description on page 1 and Exhibit A of the Agreement Total State Grant not to exceed $500,000.00 (or project costs, whichever is less) The Special and General Provisions attached are made a part of and incorporated into the Agreement. CITY OF POWAY STATE OF CALIFORNIA NATURAL RESOURCES AGENCY By By Tina White Julie Alvis Title City Manager Title Deputy Assistant Secretary Date Date CERTIFICATION OF FUNDING AMOUNT OF ESTIMATE AGREEMENT NUMBER FUND FUNDING 0183 — Environmental Enhancement and $500,000.00 E13712-0 Mitigation Fund ADJ. INCREASING FI$Cal PO Number ENCUMBRANCE ADJ. DECREASING FUNCTION ENCUMBRANCE $ Local Assistance UNENCUMBERED BALANCE REFNUMBER FUND ENACTMENT YEAR ACCOUNT NUMBER ALTACCOUNT $ 101 0183 2017 5432000 000000000 PROGRAM PCBU PROJECT ACTIVITY RPTG STRUCTURE SVC LOC AGENCY USE BUDGET PERIOD 0320 0540 0540E137120 30137 05400001 30137 2017 I hereby certify upon my personal knowledge that budgeted funds are available for this encumbrance SIGNATURE OF ACCOUNTING OFFICER DATE 7 of 68 ATTACHMENT C February 19, 2019, Item #1.8 Agreement No. E13712-0 STATE OF CALIFORNIA NATURAL RESOURCES AGENCY GRANT AGREEMENT Grantee Name: City of Poway Project Title: Van Dam Cornerstone Acquisition Agreement Number: E13712-0 Authority: Streets and Highways Code Section 164.56 Program: Environmental Enhancement and Mitigation PROJECT DESCRIPTION Fee acquisition of 162.31 acres in Poway, California for permanent protection as open space. A detailed Project Scope and activities, project schedule and Project Budget are described and attached hereto as Exhibit A. Grant funds are to be used to acquire property that will contribute to mitigation of the environmental effects of transportation facilities. TERMS AND CONDITIONS OF GRANT Special Provisions 1. Recipients of Grant Funds shall post signs acknowledging the source of the funds. Size, location and number of signs shall be approved by the State. 2. As a condition precedent to the State's obligation to deposit funds into escrow or to provide reimbursement related to the Acquisition, the Grantee shall have obtained approval of the language contained in the grant deed by the Natural Resources Agency. Said deed shall include the State's required protections, restrictions of use and subsequent transfer requirements. 3. The State Department of General Services (DGS) may review and approve in writing all documents pertaining to the Grantee's Acquisition of real property, including any preliminary title reports, agreements for purchase and sale, escrow instructions and the instruments of conveyance prior to the release of any Grant Funds. Such review and approval by the State shall be timely and shall not be unreasonably withheld. 4. DGS shall review and approve in writing the appraisal of the real property. 5. The Grantee agrees to pay DGS directly the amount invoiced by DGS for services rendered for its review of the appraisal, transaction review, or other related activities as described above. Should the Grantee fail to pay DGS, the State is authorized to pay DGS by directly transferring from the Grant Funds the amount invoiced by DGS. The State will notify the Grantee at the time of the transfer and provide a copy of the appraisal review letter and invoice upon receipt. 6. The Grantee agrees that all parcels to be acquired by this project will have concurrent escrows. Page 1 8 of 68 February 19, 2019, Item #1.8 General Provisions A. Definitions Agreement No. E13712-0 1. The term "Acquisition" means to acquire fee title or any other interest, including easement, leases, and development rights from a willing seller. 2. The term "Agreement" means this Grant Agreement. 3. The term "Application" means the individual application form, its required attachments for grants pursuant to the enabling legislation and/or program and any applicable materials supplied by applicant to the Natural Resources Agency prior to award. 4. The term "Application Guidelines" means the Environmental Enhancement and Mitigation (EEM) Grant Program Grant Guidelines and Application. 5. The term "Fair Market Value" means the value placed upon the property as supported by an appraisal that has been reviewed and approved by the California Department of General Services. 6. The term "Grant" or "Grant Funds" means the money provided by the State to the Grantee in this Agreement. 7. The term "Grantee" means an applicant who has a signed agreement for Grant Funds. 8. The term "Other Sources of Funds" means cash or in-kind contributions that are required or used to complete the EEM project beyond the Grant Funds provided by this Agreement. 9. The term "Payment Request Form" means Form RA212. 10. The term "Project' means the Acquisition activity described in the application as modified by Exhibit A to be accomplished with Grant Funds. 11. The term "Project Budget" means the State approved cost estimate included as Exhibit A to this Agreement. 12. The term "Project Scope" means the description or activity of work to be accomplished by the EEM Project. 13. The term "Public Agency" means any State of California department or agency, a county, city, public district or public agency formed under California law. 14. The term "State" means the Secretary for Natural Resources or his/her representatives, or other political subdivisions of the State. B. Project Execution 1. Subject to the availability of funds in the Streets and Highways Code, the State hereby grants to the Grantee a sum of money (Grant Funds) not to exceed the amount stated on the signature page in consideration of and on condition that the sum be expended in carrying out the purposes as set forth in the description of Project in this Agreement and its attachments and under the terms and conditions set forth in this Agreement. 2. Grantee shall furnish any and all additional funds that may be necessary to complete the Project. Page 2 9 of 68 February 19, 2019, Item #1.8 Agreement No. E13712-0 3. Grantee shall complete the Project in accordance with the Project Performance Period set forth on the signature page, unless an extension has been formally granted by the State and under the terms and conditions of this Agreement. Extensions may be requested in advance and will be considered by State, at its sole discretion, in the event of circumstances beyond the control of the Grantee, but in no event beyond May 1, 2024. 4. Grantee shall at all times ensure that Project complies with the California Environmental Quality Act (CEQA) (Public Resources Code, Division 13, commencing with section 21000, et. seq., Cal Code Regs tit. 14, section 15000 et. seq.) and all other environmental laws, including but not limited to obtaining all necessary permits. Grant Funds will not be disbursed before the close of the period for legal challenge under CEQA. 5. Where relevant, Projects must comply with any applicable laws pertaining to prevailing wage and labor compliance. 6. Grantee certifies that the Project does and will continue to comply with all current laws and regulations which apply to the Project, including, but not limited to, legal requirements for construction contracts, building codes, environmental laws, health and safety codes, and disabled access laws. Grantee certifies that, prior to commencement of construction, all applicable permits and licenses (e.g., state contractor's license) will have been obtained. 7. Grantee shall provide access by the State upon 24 -hours' notice to determine if Project work is in accordance with the approved Project Scope, including a final inspection upon Project completion. 8. Grantee agrees to comply with all applicable state and local laws or ordinances that apply to relocation and real property acquisition by Public Agencies. 9. Lands acquired with Grant Funds from this Agreement shall be acquired from a willing seller of the land at a price not to exceed Fair Market Value. Any acquisition of Project lands by Grantee following award shall not involve eminent domain proceedings or threat of eminent domain proceedings. 10. Grantee agrees to submit in writing to the State for prior approval any deviation from the original Project Scope per Exhibit A and the Application. Changes in Project Scope must continue to meet the need cited in the original application or they will not be approved. Any modification or alteration in the Project as set forth in the Application on file with the State must be submitted to the State for approval. Any modification or alteration in the Project must also comply with all current laws and regulations, including but not limited to CEQA. C. Project Costs Any Grant Funds provided to Grantee under this Agreement will be disbursed for eligible costs as follows, but shall not exceed in any event the amount set forth on the signature page of this Agreement: a. The State approved purchase price, together with the State approved costs of Acquisition, within sixty (60) days of close of escrow. All disbursements are subject to up to ten percent (10%) withhold pending Project completion, the final close-out site visit by the State, completion of the conditions described in Sections 3, D.6 and D.7 below and all Special Conditions set forth in this Agreement. b. Costs of obtaining approval of the purchase price and transaction review from the DGS. The amount disbursed by the State in any event shall not exceed the amount set forth Page 3 10 of 68 February 19, 2019, Item #1.8 Agreement No. E13712-0 on the signature page of this Agreement. The remainder of the Grant Funds, if any, shall be available on a reimbursable basis. 2. Requests for payment of Grant Funds into escrow must be submitted via a completed Payment Request Form and be accompanied by a letter requesting funds be deposited to escrow on the Grantee's letterhead, containing all of the following: I. Name and address of Grantee; ii. Number of Agreement; iii. Dollar amount of disbursement requested; iv. Name, address and telephone number of the title company or escrow holder, and the escrow account number to which the Grant Funds will be disbursed; V. A statement by Grantee that all funds (exclusive of the Grant Funds to be provided under this Agreement) needed for completion of Acquisition of the real property have been secured and have been or will be deposited to escrow at or about the same date as the requested Grant Funds. In making this statement, Grantee shall be entitled to reasonably rely on the representations of the transferor of the real property; and vi. Anticipated close of escrow date. The letter shall be accompanied by a Payee Data Record (Form 204) completed for and by the escrow company. 3. Requests for payment of Grant Funds on a reimbursable basis for Acquisitions shall include all of the following: i. Complete Payment Request Form; ii. Buyer's closing statement; iii. Copies of recorded Memoranda of Unrecorded Grant Agreement/Deed Restrictions; iv. Policy of title insurance; V. Project Certification Form (if the Project is complete and payment in full is requested); vi. Evidence of compliance with signage requirement; and vii. Summary report of final total Project expenditures. 4. Payment Documentation: a. All payment requests must be submitted using a completed Payment Request Form. This form must be accompanied by an itemized list of all expenditures that clearly documents the check numbers, dates, recipients, line -item description as described in the Project Budget approved by the State and amounts. Each payment request must also include proof of payment such as receipts, paid invoices, canceled checks or other forms of documentation demonstrating payment has been made. b. Any payment request that is submitted without the required itemization and documentation will not be authorized. If the payment request package is incomplete, inadequate or inaccurate, the State will inform the Grantee and hold the payment request until all required information is received or corrected. Any penalties imposed on the Grantee by a contractor, or other consequence, because of delays in payment will be paid by the Grantee and is not reimbursable under this Agreement. Page 4 11 of 68 February 19, 2019, Item #1.8 Agreement No. E13712-0 5. Grant Funds in this award have a limited period in which they must be expended. All Grantee expenditures funded by the State must occur within the time frame of the Project Performance Period as indicated in this Agreement. 6. Except as otherwise provided herein, the Grantee shall expend Grant Funds in the manner described in the Exhibit A as approved by the State. The total dollars of a category in the Project Budget may be increased by up to ten percent (10%) through a reallocation of funds from another category, without approval by the State. However, the Grantee shall notify the State in writing when any such reallocation is made, and shall identify both the item(s) being increased and those being decreased. Any cumulative increase or decrease of more than ten percent (10%) from the original budget in the amount of a category must be approved in writing by the State. In any event, the total amount of the Grant Funds may not be increased, nor may any adjustments exceed the limits for preliminary costs as described in the Application Guidelines. D. Project Administration 1. Grantee shall promptly submit written Project reports and/or photographs upon request by the State. In any event Grantee shall provide the State a report showing total final Project expenditures with the final payment request and required closing documents. 2. Grantee shall make property and facilities acquired or developed pursuant to this Agreement available for inspection upon request by the State. 3. Grantee agrees to use any Grant Funds advanced by the State under the terms of this Agreement solely for the Project herein described. 4. If Grant Funds are advanced, the Grantee shall place these Funds in a separate interest- bearing account, setting up and identifying such account prior to the advance. Interest earned on Grant Funds shall be used on the Project, as approved by the State. The grant will be reduced by a corresponding amount. Any overpayment of Grant Funds in excess of final Project costs shall be returned to the State within sixty (60) days of completion of the Project or the end of the Project Performance Period as shown on the signature page, whichever is earlier. 5. Grantee shall use any income earned by the Grantee from use of the Project to further Project purposes, or, if approved by the State, for related purposes within the jurisdiction. 6. Grantee shall submit all documentation for Project completion and final reimbursement within ninety (90) days of Project completion, but in no event any later than May 1, 2024. 7. Final payment is contingent upon State verification that the Project is consistent with Project Scope as described in Exhibit A, together with any State approved amendments. 8. This Agreement may be amended by mutual agreement in writing between Grantee and State. Any request by the Grantee for amendments must be in writing stating the amendment request and reason for the request. The Grantee shall make requests in a timely manner and in no event less than sixty (60) days before the effective date of the proposed amendment. 9. Grantee must report to the State all sources of other funds for the Project. E. Project Termination 1. Prior to the last to occur of (1) State's deposit of the Grant Funds into escrow and (2) Grantee's close of escrow for Acquisition of the easement and/or real property, either Page 5 12 of 68 February 19, 2019, Item #1.8 Agreement No. E13712-0 party may terminate this Agreement by providing the other party with a minimum of thirty (30) days' written notice of such termination. The State may also terminate this Grant Agreement for any reason at any time if it learns of or otherwise discovers that there is a violation of any state or federal law or policy by Grantee which affects performance of this or any other grant agreement or contract entered into with the State. 2. If the State terminates the Agreement without cause prior to the end of the Project Performance Period, the Grantee shall take all reasonable measures to prevent further costs to the State under this Agreement. The State shall be responsible for any reasonable and non -cancelable obligations incurred by the Grantee in the performance of this Agreement prior to the date of the notice to terminate, but only up to the undisbursed balance of funding authorized in this Agreement. 3. If the Grantee fails to complete the Project in accordance with this Agreement, or fails to fulfill any other obligations of this Agreement prior to the termination date, the Grantee shall be liable for immediate repayment to the State of all amounts disbursed by the State under this Agreement, plus accrued interest and any further costs related to the Project. The State may, at its sole discretion, consider extenuating circumstances and not require repayment for work partially completed provided that the State determines it is in the State's best interest to do so. This paragraph shall not be deemed to limit any other remedies available to the State for breach of this Agreement. 4. Failure by the Grantee to comply with the terms of this Agreement or any other Agreement under the Streets and Highways Code may be cause for suspension of all obligations of the State hereunder. 5. Failure of the Grantee to comply with the terms of this Agreement shall not be cause for suspending all obligations of the State hereunder if, in the judgment of the State, such failure was due to no fault of the Grantee. At the discretion of the State, any amount required to settle at minimum cost any irrevocable obligations properly incurred shall be eligible for reimbursement under this Agreement. 6. Because the benefit to be derived by the State, from the full compliance by the Grantee with the terms of this Agreement, is the Acquisition of land for the purpose stated in the grant application for the people of the State of California, and because such benefit exceeds to an immeasurable and unascertainable extent the amount of money furnished by the State by way of Grant Funds under the provisions of this Agreement, the Grantee agrees that payment by the Grantee to the State of an amount equal to the amount of the Grant Funds disbursed under this Agreement by the State would be inadequate compensation to the State for any breach by the Grantee of this Agreement. The Grantee further agrees therefore, that the appropriate remedy in the event of a breach by the Grantee of this Agreement shall be the specific performance of this Agreement, unless otherwise agreed to by the State. F. Hold Harmless 1. Grantee shall waive all claims and recourses against the State, including the right to contribution for loss or damage to persons or property arising from, growing out of or in any way connected with or incident to this Agreement, except claims arising from the gross negligence of State, its officers, agents and employees. 2. Grantee shall indemnify, hold harmless and defend State, its officers, agents and employees in perpetuity against any and all claims, demands, damages, costs, expenses or liability costs arising out of the Acquisition, Development, construction, operation or maintenance of the property described in the Project description which claims, demands or causes of action arise under Government Code Section 895.2 or otherwise, including but not limited to items Page 6 13 of 68 February 19, 2019, Item #1.8 Agreement No. E13712-0 to which the Grantee has certified, except for liability arising out of the gross negligence of State, its officers, agents or employees. Grantee acknowledges that it is solely responsible for compliance with items to which it has certified. 3. Grantee and State agree that in the event of judgment entered against the State and Grantee because of the gross negligence of the State and Grantee, their officers, agents or employees, an apportionment of liability to pay such judgment shall be made by a court of competent jurisdiction. Neither party shall request a jury apportionment. G. Financial Records 1. Grantee shall maintain satisfactory financial accounts, documents and records for the Project and to make them available to the State for auditing at reasonable times. Grantee shall also retain such financial accounts, documents and records for three (3) years after final payment and one (1) year following an audit. 2. Grantee agrees that during regular office hours, the State and its duly authorized representatives shall have the right to inspect and make copies of any books, records or reports of the other parry pertaining to this Agreement or matters related thereto. Grantee shall maintain and make available for inspection by the State accurate records of all of its costs, disbursements and receipts with respect to its activities under this Agreement. 3. Grantee shall use applicable Generally Accepted Accounting Principles, unless otherwise agreed to by the State. H. Use of Facilities 1. The real property (including any portion of it or any interest in it) may not be sold or transferred without the written approval of the State of California, acting through the Natural Resources Agency, or its successor, provided that such approval shall not be unreasonably withheld as long as the purposes for which the Grant was awarded are maintained. 2. Grantee shall maintain, operate and use the Project in fulfillment of the purpose funded pursuant to this Grant consistent with the Land Tenure/Site Control requirements included in the Application Guidelines. The Grantee, or the Grantee's successor in interest in the property, may assign without novation the responsibility to maintain and operate the property in accordance with this requirement only with the written approval of the State. Grantee may be excused from its obligations for operation and maintenance of the Project site only upon the written approval of the State for good cause. "Good cause" includes, but is not limited to, natural disasters that destroy the Project improvements and render the Project obsolete or impracticable to rebuild. 3. Grantee shall use the property for the purposes for which the Grant was made and shall make no other use or sale or other disposition of the property. This Agreement shall not prevent the transfer of the property from the Grantee to a Public Agency, if the successor Public Agency assumes the obligations imposed by this Agreement. 4. If the use of the property is changed to a use that is not permitted by the Agreement, or if the property is sold or otherwise disposed of, at the State's sole discretion, an amount equal to (1) the amount of the grant (2) the Fair Market Value of the real property, or (3) the proceeds from the sale or other disposition, whichever is greater, may be reimbursed to the State. If the property sold or otherwise disposed of is less than the entire interest in the property funded in the Grant, an amount equal to either the proceeds from the sale or other disposition of the interest or the Fair Market Value of the interest sold or otherwise disposed of, whichever is greater, shall be reimbursed to the State. Page 7 14 of 68 February 19, 2019, Item #1.8 Agreement No. E13712-0 5. The Grantee shall not use or allow the use of any portion of the real property for mitigation without the written permission of the State. 6. The Grantee shall not use or allow the use of any portion of the real property as security for any debt. I. Nondiscrimination During the performance of this grant, grantee and its subcontractors shall not unlawfully discriminate, harass or allow harassment, against any person because of sex, sexual orientation, race, color, religious creed, marital status, denial of family and medical care leave, ancestry, national origin, medical condition (cancer/genetic characteristics), age (40 and above), disability (mental and physical) including HIV and AIDS, denial of pregnancy disability leave or reasonable accommodation. Grantee and subcontractors shall ensure that the evaluation and treatment of all persons, and particularly their employees and applicants for employment are free from such discrimination and harassment. Grantee and its subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code, §12900 et seq.) and the applicable regulations promulgated thereunder (Cal. Code Regs, tit. 2, §7285.0 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code, §12990 (a)—(f), are incorporated into this grant by reference and made a part hereof as if set forth in full (Cal. Code Regs, tit. 2, §7285.0 et seq.). Grantee shall include this non-discrimination and compliance provisions of this clause in all subcontracts to perform work under the grant. 2. The Grantee shall not discriminate against any person on the basis of residence except to the extent that reasonable differences in admission or other fees may be maintained on the basis of residence and pursuant to law. 3. The completed Project and all related facilities shall be open to members of the public generally, except as noted under the special provisions of this Agreement or under provisions of the Streets and Highways Code. J. Application Incorporation The Grant Guidelines and the Application and any subsequent changes or additions to the Application approved in writing by the State are hereby incorporated by reference into this Agreement as though set forth in full in this Agreement. K. Severability If any provision of this Agreement or the application thereof is held invalid, that invalidity shall not affect other provisions or applications of this Agreement which can be given effect without the invalid provision or application, and to this end the provisions of this Agreement are severable. L. Waiver No term or provision hereof will be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing and signed on behalf of the party against whom the waiver is asserted. No consent by either party to, or waiver of, a breach by either party, whether expressed or implied, will constitute consent to, waiver of or excuse of any other, different or subsequent breach by either party. M. Assignment Except as expressly provided otherwise, this Agreement is not assignable by the Grantee either in whole or in part. Page 8 15 of 68 February 19, 2019, Item #1.8 Agreement No. E13712-0 N. Disputes If the Grantee believes that there is a dispute or grievance between Grantee and the State arising out of or relating to this Agreement, the Grantee shall first discuss and attempt to resolve the issue informally with the Agency Grants Administrator. If the issue cannot be resolved at this level, the Grantee shall follow the following procedures: If the issue cannot be resolved informally with the Agency Grants Administrator, the Grantee shall submit, in writing, a grievance report together with any evidence to the Deputy Assistant Secretary for Bonds and Grants for the Natural Resources Agency. The grievance report must state the issues in the dispute, the legal authority, or other basis for the Grantee's position and the remedy sought. Within ten (10) working days of receipt of the written grievance report from the Grantee, the Deputy Assistant Secretary shall make a determination on the issue(s) and shall respond in writing to the Grantee indicating the decision and reasons therefore. Should the Grantee disagree with the Deputy Assistant Secretary's decision, the Grantee may appeal to the Assistant Secretary for Administration and Finance for the Natural Resources Agency. 2. The Grantee must submit a letter of appeal to the Assistant Secretary explaining why the Deputy Assistant Secretary's decision is unacceptable. The letter must include, as an attachment, copies of the Grantee's original grievance report, evidence originally submitted, and response from the Deputy Assistant Secretary. The Grantee's letter of appeal must be submitted within ten (10) working days of the receipt of the Deputy Assistant Secretary's written decision. The Assistant Secretary or designee shall, within twenty (20) working days of receipt of Grantee's letter of appeal, review the issues raised and shall render a written decision to the Grantee. The decision of the Assistant Secretary or designee shall be final. O. Audit Requirements Projects are subject to audit by the State annually and for three (3) years following the final payment of Grant Funds. The audit shall include all books, papers, accounts, documents, or other records of the Grantee, as they relate to the Project for which the Grant Funds were granted. Page 9 16 of 68 February 19, 2019, Item #1.8 EXHIBIT A STATE OF CALIFORNIA NATURAL RESOURCES AGENCY GRANT AGREEMENT Environmental Enhancement and Mitigation Grant Program Streets and Highways Code Section 164.56 Grantee Name: City of Poway Project Title: Van Dam Cornerstone Acquisition Agreement Number: E13712-0 Project Location: Poway, California Project Scope: Fee acquisition of 162.31 acres in Poway, California for permanent Close escrow Submit final closing documents to State protection as open space. Along with adjacent properties, the acquisition Install Bond Acknowledgement Sign & Project Closeout will create 450 acres of consolidated public open space, thereby Section 6 protecting a robust east -west regional wildlife corridor and preserving coastal sage scrub, habitat of the coastal California gnatcatcher. After acquisition, the City of Poway will provide legal public access to the Grant property and its Van Dam Peak trail system. Parcel Numbers: 316-020-04;316-020-05;316-020-20;316-020-21 Project Schedule: $500,000 Activity Description Approximate Date Submit appraisal, purchase docs and title report to State Completed DGS Review of Appraisal Approved 10/3/18 Open Escrow & Request Advance into Escrow March 2019 Submit instruments of conveyance May 2019 Close escrow Submit final closing documents to State May 2019 Install Bond Acknowledgement Sign & Project Closeout July 2019 Cost Estimate: *Grant funds remaining after payment to DGS for appraisal reviews may be issued to Grantee as part of the final project payment, and shall be applied toward fair market value of the land. **Only direct project management costs are eligible; no overheard/indirect costs are reimbursable. In-service payroll may not include a "billable rate" or administrative cost allocation. Page 10 17 of 68 February 19, 2019, Item #,1.8 Endangered Poway In - Costs EEM Species Lieu Habitat TPL TOTAL Grant Section 6 Conservation Grant Fund Fair Market Value of Property $500,000 $1,000,000 $125,000 $1,625,000 Preliminary Title Reports, Appraisals, Negotiations & $9,000 $9,000 Escrow State approval of appraisal/ $10,000 $10,000 transaction review* Escrow Fees, Title insurance, $10,000 $10,000 closingcosts, signage Direct costs (up to $10,000 ** $10,000 $10,000 Phase I ESA, other Studies $4,000 $4,000 Contingency $30,000 $30000 TOTAL $500,000 $1,000,000 $125,000 $73,000 $1,698,000 *Grant funds remaining after payment to DGS for appraisal reviews may be issued to Grantee as part of the final project payment, and shall be applied toward fair market value of the land. **Only direct project management costs are eligible; no overheard/indirect costs are reimbursable. In-service payroll may not include a "billable rate" or administrative cost allocation. Page 10 17 of 68 February 19, 2019, Item #,1.8 CALIFORNIA WILDLIFE CONSERVATION BOARD SUBGRANT AGREEMENT FOR ACQUISITION OF FEE INTEREST Cooperative Endangered Species Conservation Fund (Section 6 of the Federal Endangered Species Act) Grant Program Subgrantee: 13325 Civic Center Drive Poway, CA 92064 Attn: Tina White, City Manager Phone: (858) 668-4501 Fax: (858) 668-1205 E-mail: twhite@poway.org Federal Employer ID No./Taxpayer ID No.: 95-3555845 Project Name: Van Dam Cornerstone (City of Poway Subarea HCP-NCCP) Project Location: County of San Diego (APNs 316-020-04, 316-020-05, 316-020-20, 316-020-21) Section 6 Grant Agreement Number: F17AP01090 WCB Subgrant Agreement Number: SG-1802SS WCB Project ID: 2018107 WCB Subgrant Agreement Amount: Not to exceed $ 1,000,000.00 Notices to be delivered to: For Subgrantee: City of Poway 13325 Civic Center Drive Poway, CA 92064 Attn: Tina White, City Manager For WCB: Wildlife Conservation Board Mailing address: P.O. Box 944209 Sacramento, CA 94244 Attn: Executive Director With a copy to: Department of Fish and Wildlife Habitat Conservation Branch 1416 9th Street, 12th Floor Sacramento, CA 95814 Attn: Grant Coordinator 18 of 68 ATTACHMENT D February 19, 2019, Item #1.8 1. BACKGROUND 1.1. The U.S. Department of the Interior, Fish and Wildlife Service ("USFWS") and the California Department of Fish and Wildlife ("CDFW") have entered into a Cooperative Agreement for the benefit of endangered, threatened and rare fish, wildlife and plants which are resident in the State of California. 1.2. USFWS has approved the Application for Federal Assistance submitted by CDFW, F17AP01090 (the "Federal Grant Application"), for Cooperative Endangered Species Conservation Fund (Section 6 of the Federal Endangered Species Act) Grant Program funding ("Federal Grant Funds") to facilitate the acquisition of real property identified in the Federal Grant Application. The Notice of Federal Assistance Approval for F17AP01090 (the "Federal Approval Notice') which USFWS issued to CDFW specifies terms of acceptance of the Federal Grant Funds. CDFW and USFWS have entered into a Grant Agreement for Grant No. F17AP01090, Grant Title: 2017 Section 6 Non -Traditional, Habitat Conservation Planning Land Acquisition - City of Poway Subarea HCP/NCCP, (the "Federal Grant Agreement") which specifies additional terms and conditions of the grant of Federal Grant Funds. The Federal Approval Notice and Federal Grant Agreement, including the terms and conditions set forth or incorporated directly or by reference in either or both of these instruments, are referred to in this Subgrant Agreement ("Agreement") individually and collectively as the "Federal Assistance Requirements". 1.3. Subgrantee has entered into an agreement to purchase the Property described in Section 3.1 of this Agreement, which Property is the real property identified in the Federal Grant Application. Subgrantee has requested a subgrant of Federal Grant Funds from CDFW, acting through the Wildlife Conservation Board ("WCB"), to facilitate Subgrantee's acquisition of the Property (the "Acquisition"). 1.4. USFWS will permit CDFW, acting through WCB, to subgrant Federal Grant Funds to Subgrantee for the purpose of the Acquisition upon and subject to the Federal Assistance Requirements and the terms and conditions set forth in this Agreement. 1.5. USFWS requires that non-federal funds equal to twenty five percent (25%) of the total estimated program costs, as set forth in the Federal Grant Application, must be provided as a match for the Federal Grant Funds. 1.6. The balance of non-federal share of funding in the amount of $500,000.00 will be funded by the California Natural Resources Agency EEM Program, and $125,000.00 will be funded by the City of Poway in -lieu habitat conservation fund. 2. SCOPE OF AGREEMENT 2.1. Pursuant to Chapter 4 of Division 2 (commencing with Section 1300) of the California Fish and Game Code, WCB hereby subgrants to Subgrantee Federal Grant Funds in a sum not to exceed One Million Dollars ($1,000,000.00) (the "Subgrant Funds"), upon and subject to the terms and conditions of this Agreement. 2 19 of 68 February 19, 2019, Item #1.8 3. PURPOSES OF SUBGRANT 3.1. WCB is entering into this Agreement, and the Subgrant Funds shall be used, only for the purpose of facilitating Subgrantee's purchase of fee title to approximately 162± acres of land known as Van Dam Cornerstone and designated Assessor's Parcel No(s). 316-020-04, 316-020-05, 316-020-20, 316-020-21, located in the County of San Diego, California (the "Property"). The Property is more particularly described in Exhibit A attached to this Agreement. 3.2. Subgrantee covenants and agrees that if WCB requests disbursement of the Subgrant Funds and Subgrantee acquires the Property, the Property shall be held and used for the purposes of ensuring that the land will be managed in perpetuity to conserve the acquired land to complement the City of Poway Subarea HCP/NCCP. Species to be conserved pursuant to this agreement may include but not be limited to: California coastal gnatcatcher, least Bell's vireo, southwestern willow flycatcher, Riverside fairy shrimp, vernal pool fairy shrimp, arroyo toad, spreading navarretia, San Diego ambrosia, San Diego button -celery, thread -leaved brodiaea and California Orcutt grass (individually and collectively, the "Purposes of Subgrant'). 4. CONDITIONS PRECEDENT TO SUBGRANT 4.1. The obligation of WCB under this Agreement to request disbursement of the Subgrant Funds is conditioned upon and subject to the satisfaction of all of the following conditions precedent: a. WCB shall have reviewed and approved all documents pertaining to Subgrantee's acquisition of the Property, including but not limited to appraisals, preliminary title reports and items referenced therein, options, agreements for purchase and sale, escrow instructions, closing or settlement statements, and instruments of conveyance. Such review and approval by WCB shall not be unreasonably delayed or withheld. Subgrantee shall have removed or caused to be removed, or otherwise addressed to the satisfaction of WCB, any encumbrances or defects of title that WCB determines are inconsistent or could interfere with the Purposes of Subgrant. Any outstanding security interests or monetary encumbrances affecting the Property shall have been terminated or the holder of the encumbrance shall have irrevocably committed to remove its security interest or monetary encumbrance prior to the recording of the deed(s) conveying the Property to Subgrantee. b. Subgrantee shall have provided WCB with a letter or other written acknowledgment (which may be contained in the Subgrantee's option or purchase agreement with the landowner) demonstrating that the landowner is a willing seller of the Property. C. The purchase price of the Property shall not exceed its fair market value as established by an appraisal that is conducted by an appraiser K3 20 of 68 February 19, 2019, Item #1.8 who is licensed pursuant to Part 3 (commencing with Section 11300) of Division 4 of the California Business and Professions Code. The appraisal shall have been prepared pursuant to the Uniform Appraisal Standards for Federal Land Acquisitions ("UASFLA") and the Uniform Standards of Professional Appraisal Practice ("USPAP"), and approved by the California Department of General Services ("DGS Review'). The appraisal and DGS Review shall also have been submitted to and approved in writing by USFWS. The appraisal shall become part of the project file maintained by WCB and shall be retained for no less than three years from the date WCB requests disbursement of the Subgrant Funds from the federal Payment Management System. d. Subgrantee shall have provided WCB with written certification that the Acquisition is not intended, and shall not serve, to satisfy any local, State or federal regulatory requirement (e.g., mitigation for any local, State or federal permit), including but not limited to complying with a biological opinion under Section 7 of the Endangered Species Act of 1973, 16 U.S.C. Section 1361 et seq., as amended ("ESA"), or fulfilling commitments of a Habitat Conservation Plan under Section 10 of the ESA. Upon approval by WCB, this certification shall be attached to this Agreement as Exhibit B. e. Subgrantee shall have provided WCB with a written commitment to funding for, and implementation of, management of the Property in perpetuity consistent with the Purposes of Subgrant. Upon approval by WCB, this commitment shall be attached to this Agreement as Exhibit C. f. Subgrantee shall have provided WCB with assurances and certifications of compliance with federal requirements (i.e., Standard Form 424-D available at http: //fawiki.fws.(iov/download/attachments/5931154/sf424d- f.pdf?version=l&modificationDate=1391198142000&api=v2. Upon execution by Subgrantee, these assurances and certifications shall be attached to this Agreement as Exhibit D. g. WCB shall have reviewed and approved a certified resolution or other appropriate action of the governing board or governing body of Subgrantee, authorizing the execution and performance of this Agreement and the acquisition of the Property by Subgrantee. Upon approval by WCB the authorizing resolution or other action shall be attached to this Agreement as Exhibit E. h. WCB shall be ready, willing and able to request payment of the Subgrant Funds from the federal Payment Management System for deposit with the State Treasurer's Office. i. WCB shall be ready, willing and able to request disbursement of the Subgrant Funds from the State Treasury for deposit into an escrow 0 21 of 68 February 19, 2019, Item #1.8 account designated by Subgrantee that has been established specifically for the purpose of the Acquisition (the "Escrow'). j. Subgrantee shall have deposited, or caused to be deposited, into the Escrow all funds beyond those granted under this Agreement that are needed for Subgrantee to complete the Acquisition. k. WCB shall have confirmed that the non -Federal share of required for the Acquisition has been provided. 5. DISBURSEMENT PROCEDURE 5.1. Upon satisfaction of all the Conditions Precedent to Subgrant set forth in Section 4.1 a — g, j and k, above, and subject to approval of the acceptance of the Subgrant Funds and the subgrant by the Wildlife Conservation Board at a duly noticed public meeting, Subgrantee shall send a letter to WCB (the "Disbursement Request'), asking it to request disbursement of the Subgrant Funds from (a) the federal Payment Management System for deposit with the State Treasurer's Office and following such deposit, (b) the State Treasury for deposit into Escrow. The Disbursement Request shall be signed by an authorized representative of Subgrantee and shall contain all of the following: a. Name and address of Subgrantee; b. Project Name and Number of Agreement; C. Dollar amount and purpose of disbursement; d. Name, address and telephone number of the title company or escrow holder, and the account number of the Escrow to which the Subgrant Funds will be disbursed; and e. A certification by Subgrantee that all funds (exclusive of the Subgrant Funds to be provided under this Agreement) needed to complete the Acquisition have been secured and have been or will be deposited to Escrow at or about the same date as the requested Subgrant Funds. 5.2. After receipt of a complete and proper Disbursement Request, WCB will promptly and timely (estimated to be 45 working days from the date the WCB receives the Disbursement Request) request payment from the federal Payment Management System to the State Treasurer's Office of an amount not to exceed One Million Dollars ($1,000,000.00) for deposit into the State Treasury. After such deposit, WCB will promptly and timely request payment of the same amount from the State Treasury for deposit into Escrow. 5 22 of 68 February 19, 2019, Item #1.8 6. SUBGRANTEE'S COVENANTS 6.1. In consideration of the subgrant of the Subgrant Funds, Subgrantee hereby covenants and agrees as follows: a. The Subgrant Funds shall be used as purchase money only, which excludes escrow and title fees and any other fees and costs incurred to accomplish the transaction and the conveyance and acquisition of the Property. b. The Property shall be held and used only in a manner that is consistent with this Agreement, including the "Purposes of Subgrant" set forth in Section 3.2. C. The Property shall be set aside in perpetuity for the purposes of conservation, including the Purposes of Subgrant. d. Subgrantee shall comply with the terms and conditions of the award of Federal Grant Funds to CDFW, to the extent such terms and conditions are applicable to Subgrantee, the Subgrant Funds or the Property. Such terms and conditions are contained in the Federal Assistance Requirements. e. Subgrantee shall recognize the cooperative nature of the Acquisition and shall provide credit to WCB, CDFW, USFWS, and any other contributor on signs, demonstrations, promotional materials, advertisements, publications or exhibits prepared or approved by Subgrantee which reference the Acquisition. Subject to the mutual agreement of WCB and Subgrantee regarding text, design and location, Subgrantee shall post sign(s) on the Property to indicate the participation of WCB, CDFW and USFWS in Subgrantee's purchase of the Property; provided however, that the sign(s) shall display the logo of WCB, as shown on Exhibit F. f. Subgrantee shall pay before delinquency all taxes, assessments (general and special), fees, and charges of whatever description levied on or assessed against the Property by competent authority (collectively "Taxes"), and shall furnish [GrantorMCB] with satisfactory evidence of payment upon request. Subgrantee shall keep the Property free from any liens including, without limitation, those arising out of any obligations incurred by subgrantee for any labor or materials furnished or alleged to have been furnished to or for Grantee at or for use on the Property. g. The Property (including any portion of it or any interest in it) shall not be sold, transferred, exchanged, or otherwise conveyed without the written approval of the State of California (the "State"), acting through the Executive Director of WCB, or its successor, and USFWS (to the extent required pursuant to the Federal Assistance Requirements). The State shall not unreasonably withhold its approval as long as the Property shall continue to be held and used only in a manner consistent with this Agreement, including but not limited to Sections 6.1 (b) and (c), and each successor -in -interest assumes and agrees in 0 23 of 68 February 19, 2019, Item #1.8 a writing reasonably acceptable to the State to be bound by the terms, covenants and conditions of this Agreement. h. The Property (including any portion of it or interest in it) may not be used as security for any debt without the written approval of the State, acting through the Executive Director of WCB, or its successor, and USFWS (to the extent required pursuant to the Federal Assistance Requirements). i. Subgrantee shall record or cause to be recorded, concurrently with close of escrow for the purchase of the Property, a Notice of Unrecorded Subgrant Agreement (the "Notice"), incorporating by reference this Agreement and giving public notice that Subgrantee received funds under this Agreement in order to assist Subgrantee in acquiring the Property and that, in consideration for the receipt of the Subgrant Funds, Subgrantee has agreed to the terms of this Agreement. The Notice shall be in the form of Exhibit G. j. Subgrantee shall provide to WCB, promptly following the close of escrow, a conformed copy of the recorded deed(s) and Notice, with all recording information set forth thereon, as well as a copy of the final Escrow closing or settlement statement and the title insurance policy insuring Subgrantee as the owner of fee simple title to the Property. Subgrantee shall also provide copies of such other documents related to the closing of the Acquisition as requested by WCB. These documents shall become part of the project file maintained by WCB. Upon receipt of the above documents from Subgrantee, WCB will provide USFWS with a copy of all documents for their files. k. At the request of WCB, not less than once in any period of three calendar years, Subgrantee shall allow designated staff or representatives of WCB, CDFW and USFWS to access the Property to assess compliance with the terms, covenants, and conditions of this Agreement. Provided, however, that if more frequent access is necessary to comply with applicable federal requirements (including, but not limited to, 50 C.F.R. Section 81.13) then Subgrantee shall allow designated staff or representatives of WCB, CDFW and USFWS access to the Property at such intervals as WCB, CDFW or USFWS considers appropriate to meet federal requirements to which it is subject. I. Subgrantee agrees to ensure that the terms and conditions of this Agreement shall be taken into account when calculating the Baseline/Business As Usual of the Property for purposes of establishing carbon credits or other emissions offsets proposed to be authorized, created, sold, exchanged or transferred. Subgrantee agrees to notify WCB prior to any such proposed establishment. 7. RESOURCE MANAGEMENT PLAN AND FUTURE ACTIVITIES 7 24 of 68 February 19, 2019, Item #1.8 7.1. Subgrantee agrees to prepare a Resource Management Plan ('RMP") within 1 -year of the close of escrow that will describe the overall management and monitoring proposed for the Property to maintain the biological values of the Property as described in Section 3.2 Purposes of the Subgrant. The Subgrantee shall provide a draft of the RMP to CDFW and USFWS for review and approval to ensure consistency with the Federal Assistance Requirements. The RMP for the Property shall include, but is not limited to, the following requirements (i) Management activities shall be consistent with this Agreement and the Federal Assistance Requirements including the Purposes of Subgrant. (ii) Management activities shall be consistent with the regional habitat conservation plan(s). (iii) Management activities shall be consistent with the conservation and preservation of the existing natural conditions, and the maximization of those conditions. Subgrantee will update the RMP not less frequently than once every five years to address the current status and resource management needs of the Property. The updated RMP will be subject to review and approval by CDFW and USFWS to ensure consistency with the Federal Assistance Requirements. The proposed RMP and updates shall be delivered to CDFW and USFWS at the following addresses: CDFW: Regional Manager Department of Fish and Game South Coast Region 3883 Ruffin Road San Diego, CA 92123 USFWS: United States Fish and Wildlife Service: Carlsbad Fish and Wildlife Office 2177 Salk Ave., Ste. 250 Carlsbad, CA 92008 7.2. Subgrantee agrees that future proposed uses of and activities on the Property are subject to prior review and approval by WCB, CDFW and USFWS and must be consistent with the Purpose of Subgrant and the approved RMP. CDFW and WCB each specifically reserves the right to satisfy its obligations as a lead or responsible agency under the California Environmental Quality Act ("CEQA"), including full discretion to require mitigation measures necessary to satisfy CEQA requirements, prior to responding to any request for approval under this section. 25 of 68 February 19, 2019, Item #1.8 8. BREACH AND DEFAULT 8.1. In the event of a breach of any of the terms, covenants or conditions of this Agreement, WCB shall give written notice to Subgrantee, describing the breach. Notice shall be deemed given when personally delivered or deposited in the United States Mail, postage prepaid, or with a reliable over -night courier, addressed to Subgrantee at Subgrantee's address for notices set forth at the beginning of this Agreement (or such changed address of which Subgrantee has notified WCB in writing pursuant to this Agreement). 8.2. If Subgrantee does not cure the breach within 90 days of the date a notice of breach is given or, if the breach is not curable within said 90 -day period, Subgrantee does not commence the cure within the 90 -day period and diligently pursue it to completion, then Subgrantee shall be in default ("Default') under this Agreement. 8.3. Subgrantee shall also be in Default under this Agreement upon the discovery that information given to WCB by or on behalf of Subgrantee under or in connection with obtaining this Agreement was materially false or misleading. Notice of a Default under this Section 7.3 shall be given in accordance with Section 7.1. Q In the event of a Default under this Agreement, in addition to any and all remedies available at law or in equity, WCB shall have the following remedies: 9.1. WCB may seek specific performance of this Agreement. Subgrantee agrees that payment by Subgrantee to WCB of an amount equal to the Subgrant Funds disbursed under this Agreement would be inadequate compensation for any Default because the benefit to be derived from full compliance by Subgrantee with the terms of this Agreement is ensuring that the land will be managed in perpetuity to conserve the acquired land to complement the City of Poway Subarea HCP/NCCP. Species to be conserved pursuant to this agreement may include but not be limited to: California coastal gnatcatcher, least Bell's vireo, southwestern willow flycatcher, Riverside fairy shrimp, vernal pool fairy shrimp, arroyo toad, spreading navarretia, San Diego ambrosia, San Diego button -celery, thread -leaved brodiaea and California Orcutt grass.and because such benefit exceeds to an immeasurable and unascertainable extent the amount of money furnished by way of Subgrant Funds under this Agreement. 9.2. WCB may require Subgrantee to convey a conservation easement over the Property in favor of the State or, at the election of WCB, another entity or organization authorized by California law to acquire and hold conservation easements. Furthermore, WCB may also require Subgrantee to pay a sum to WCB which, when combined with the fair market value of the conservation easement, equals the amount of Subgrant Funds provided by this Agreement, together with interest compounded semi-annually starting from the date of disbursement of the Subgrant Funds to the State Treasurer's Office to and including the date of payment, at a rate equivalent to the higher of (a) that which is being earned at the time of Default on deposits in the State of California's Pooled Money Investment Account or (b) the applicable rate of interest rE' 26 of 68 February 19, 2019, Item #1.8 under the Federal Assistance Requirements. The conservation easement shall be for the purposes of ensuring that the land will be managed in perpetuity to conserve the acquired land to complement the City of Poway Subarea HCP/NCCP. Species to be conserved pursuant to this agreement may include but not be limited to: California coastal gnatcatcher, least Bell's vireo, southwestern willow flycatcher, Riverside fairy shrimp, vernal pool fairy shrimp, arroyo toad, spreading navarretia, San Diego ambrosia, San Diego button -celery, thread -leaved brodiaea and California Orcutt grass. The value of the conservation easement shall be determined by an appraisal that is conducted by an appraiser who is licensed pursuant to Part 3 (commencing with Section 11300) of Division 4 of the Business and Professions Code and acceptable to WCB. The appraisal shall be prepared pursuant to UASFLA and USPAP and approved by DGS. 9.3. Intentionally Left Blank. 9.4. Despite the contrary provisions of Article 7 of this Agreement, if WCB determines that circumstances require immediate action to prevent or mitigate interference with the Purposes of Subgrant or other irreparable harm arising from a breach or threatened breach of this Agreement, then WCB may pursue its remedies without waiting for the period provided for cure to expire. 9.5. CDFW, as the grantee under the Federal Grant Agreement, shall be an express third -party beneficiary of this Agreement and shall have the same rights and remedies as WCB in the event of a breach or Default by Subgrantee. 10. NONPROFIT ORGANIZATION SUBGRANTEE 10.1. If Subgrantee is a nonprofit organization and the existence of Subgrantee is terminated for any reason, title to all interest in the Property acquired with Subgrant Funds shall immediately vest in the State. However, prior to that termination, upon approval of the State, acting through the Executive Director of WCB or its successor, another public agency or nonprofit organization may receive title to all or a portion of that interest in the Property by recording its acceptance of title in writing. Any deed or other instrument of conveyance whereby the Property or any interest in it is being acquired by a nonprofit organization pursuant to this Section 9.1 shall be recorded and shall set forth the executory interest or right of entry on the part of the State. 11. TERM 11.1. This Agreement shall be deemed executed and effective when signed by an authorized representative of each party and received in the respective offices of Subgrantee and WCB, together with the certifications, commitment and resolution described in Section 4.1 (d) — (g) (the "Effective Date"). Subgrantee and WCB shall each sign two original counterparts of this Agreement. Subgrantee shall receive one completely executed original and WCB shall receive one completely executed original. Fro, 27 of 68 February 19, 2019, Item #1.8 11.2. The term of this Agreement will commence on the Effective Date and, unless previously terminated as provided in Section 10.3, will expire on March 7, 2020 if escrow has not closed by that date. 11.3. Prior to Subgrantee's close of escrow for acquisition of the Property, either party may terminate this Agreement for any reason or for no reason, by providing the other party with not less than 15 days' written notice of such termination. Notice shall be given in the same manner as specified in Section 7.1. If this Agreement is terminated after the deposit of the Subgrant Funds into Escrow but before close of escrow for Subgrantee's acquisition of the Property, Subgrantee shall cause the escrow holder to immediately return all Subgrant Funds to (or as instructed by) WCB and Subgrantee shall bear all costs and expenses of such termination. 11.4. In the event this Agreement is terminated in accordance with its terms, neither party shall have any rights nor remedies against the other party except as provided herein. 11.5. The provisions of this Agreement that are not fully performed as of the close of escrow, including but not limited to Sections 3 (Purposes of Subgrant), 6 (Subgrantee's Covenants), 7 (Breach and Default) and 8 (Remedies) shall survive the close of escrow for Subgrantee's acquisition of the Property and remain in full force and effect. 12. LIABILITY. MODIFICATIONS. INTERPRETATION 12.1. Subgrantee shall indemnify, protect and hold harmless WCB, CDFW, the State of California, and their respective members, directors, officers, agents, and employees (each an "Indemnified Party'), from and against any and all claims, demands, damages, liabilities, losses, costs (including attorneys' fees) and expenses (collectively, "Claims") arising out of, connected with, or incident to this Agreement or the acquisition, ownership, use, management, operation or maintenance of the Property, except that Subgrantee shall have no obligation to indemnify or hold harmless an Indemnified Party for Claims caused by the negligent or wrongful act of that Indemnified Party. 12.2. This Agreement may be modified only by written amendment signed by WCB and Subgrantee. No prior or contemporaneous oral understanding or agreement not incorporated in this Agreement shall be binding on either of the parties. 12.3. All references herein to "Subgrantee' are intended to refer to Subgrantee or its designee, successor or assignee as may be approved by WCB. 12.4. If any provision of this Agreement or the application thereof to any person or circumstance is held to be invalid or unenforceable, that shall not affect any other provision of this Agreement or applications of the Agreement that can be given effect without the invalid provision or application and to this end the provisions of this Agreement are severable. 11 28 of 68 February 19, 2019, Item #1.8 12.5. Subgrantee, its officers, directors, employees, agents and representatives, is each acting in an independent capacity in entering into and carrying out this Agreement, and not as a partner, member, director, officer, agent, employee or representative of WCB, CDFW or the State of California. 12.6. This Agreement is not assignable or transferable by Subgrantee, either in whole or in part, except in connection with a transfer of the Property approved by WCB under Section 6.1 (g) of this Agreement. 12.7. Any costs incurred by WCB or CDFW, where it is the prevailing party, in enforcing the terms of this Agreement against Subgrantee, including but not limited to costs of suit, attorneys' and experts' fees, at trial and on appeal, and costs of enforcing any judgment, shall be borne by Subgrantee. 12.8. Enforcement of the terms of this Agreement by WCB or CDFW shall be at its discretion, and any forbearance by WCB or CDFW to exercise its rights under this Agreement shall not be deemed or construed to be a waiver of such term or of any subsequent breach of the same or any other term of this Agreement or any of the rights of WCB or CDFW under it. 12.9. WCB will notify Subgrantee as promptly as possible following its receipt of any request under the California Public Records Act (Government Code Section 6250 et seq.) for information related to the Acquisition. 13. CONDEMNATION 13.1. If all or any part of the Property is taken by exercise of the power of eminent domain, or acquired by purchase in lieu of condemnation, WCB and Subgrantee shall act jointly to recover from the condemning authority the full value of the Property so taken or purchased, and all direct or incidental damages resulting therefrom. WCB shall be entitled to the share of the Award (as defined below) which equals the ratio of the Subgrant Funds to the total purchase price Subgrantee paid to acquire the Property (e.g., if Subgrantee paid a purchase price of $2 million and the amount of Subgrant Funds was $750,000, then WCB would be entitled to 37.5% of the Award). For purposes of this Agreement, the "Award" shall mean all compensation awarded, paid or received on account of the Property so taken or purchased, and all direct or incidental damages resulting from the taking or purchase, less all out-of-pocket expenses reasonably incurred by Subgrantee in connection with the taking or purchase. 14. AUDIT 14.1. Subgrantee shall maintain complete and accurate records of its actual project costs, in accordance with generally accepted accounting principles and practices, and shall retain said records for at least four years after the date the Subgrant Funds are deposited into Escrow. During such time, Subgrantee shall make said records available (or cause them to be made available) to the State of California for inspection and audit purposes during normal business hours. Expenditures not documented, and expenditures not allowed under this Agreement or otherwise 12 29 of 68 February 19, 2019, Item #1.8 authorized in writing by WCB shall be borne by Subgrantee. Except to the extent the Federal Assistance Requirements (including, but not limited to, 50 C.F.R. Section 81.15) provide otherwise, the audit shall be confined to those matters connected with this Agreement, including but not limited to administration and overhead costs. 15. UNION ORGANIZING 15.1. Subgrantee hereby acknowledges the applicability of Government Code Sections 16645 through 16649 to this Agreement and certifies that: a. No state funds (as defined in Government Code Section 16645) disbursed by this subgrant will be used to assist, promote or deter union organizing; b. Subgrantee shall account for state funds disbursed for a specific expenditure by this subgrant, to show those funds were allocated to that expenditure; C. Subgrantee shall, where funds are not designated as described in Section 14.1(b) above, allocate, on a pro -rata basis, all disbursements that support the subgrant program; and d. If Subgrantee makes expenditures to assist, promote or deter union organizing, Subgrantee will maintain records sufficient to show that no state funds were used for those expenditures, and that Subgrantee shall provide those records to the Attorney General upon request. 16. NON-DISCRIMINATION 16.1. During the performance of this Agreement, Subgrantee is subject to all Federal and State laws prohibiting discrimination including but not limited to Title VI of the Civil Rights Act of 1964 (42 U.S.C. Section 2000d et seq.), Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. Section 794), Title II of the Americans with Disabilities Act of 1990 (42 U.S.C. Section 12131 et seq.), the Age Discrimination Act of 1975 (42 U.S.C. Section 6101 et seq.), the Fair Employment and Housing Act (Government Code Section 12900 (a — f) et seq.), and applicable regulations (California Code of Regulations, Title 2, Section 7285 et seq.). Subgrantee shall not unlawfully discriminate against, harass, or allow harassment against any employee or applicant for employment because of race, religion, color, national origin, ancestry, physical disability (including HIV and AIDS), mental disability, medical condition, marital status, age (over 40), sex, sexual orientation, or use of family -care leave, medical -care leave, or pregnancy -disability leave. Subgrantee shall take affirmative action to ensure that the evaluation and treatment of its employees and applicants for employment are free of such discrimination and harassment. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. Subgrantee shall comply with the regulations of the Fair Employment and Housing Commission regarding Contractor Nondiscrimination and 13 30 of 68 February 19, 2019, Item #1.8 Compliance (Chapter 5 of Division 4 of Title 2 of the California Code of Regulations), which are incorporated by reference into this Agreement. Subgrantee shall give written notice of its obligations under this non-discrimination clause to labor organizations with which Subgrantee has a collective bargaining or other agreement, and shall post in conspicuous places available to employees and applicants for employment, notice setting forth the provisions of this section. Subgrantee shall also include the nondiscrimination and compliance provisions of this Agreement in all contracts related to the Acquisition. 17. DRUG-FREE WORKPLACE REQUIREMENTS 17.1. Subgrantee hereby certifies that it shall provide a drug-free workplace in compliance with the Drug -Free Workplace Act of 1990 (Government Code Section 8350 et seq.) by taking all of the following actions: a. Publishing a statement notifying employees that the unlawful manufacture, distribution, dispensation, possession or use of a controlled substance is prohibited in the workplace and specifying the actions to be taken against employees for violations; b. Establishing a drug-free awareness program to inform employees about all of the following: (i) The dangers of drug abuse in the workplace; (ii) The organization's policy of maintaining a drug-free workplace; (iii) Any available drug counseling, rehabilitation, and employee assistance programs; and (iv) The penalties that may be imposed upon employees for drug abuse violations. C. Requiring that every employee engaged in the performance of this Agreement: (i) Be given a copy of the organization's drug-free workplace policy statement; and (ii) Must agree to abide by the terms of the organization's statement as a condition of employment in connection with this Agreement. Failure to comply with the above requirements may result in suspension of payments under, or termination of, this Agreement, or both. Subgrantee may be ineligible for award of any future grants or subgrants from the State if the State determines that Subgrantee has made a false certification; or violates the certification by failing to carry out the requirements set forth above. 18. EXHIBITS Each of the Exhibits referenced in this Agreement is incorporated by reference as though set forth in full herein. The following Exhibits are attached to this Agreement: 14 31 of 68 February 19, 2019, Item #1.8 Exhibit A — Property Description and List of Assessor's Parcel Numbers Exhibit B — Certification of No Regulatory Requirements Exhibit C — Commitment to Management Funding Exhibit D — Assurances and Certifications Exhibit E — Certified Resolution or Other Action of Governing Body of Subgrantee Exhibit F — WCB's Logo Exhibit G — Form of Notice of Unrecorded Subgrant Agreement 15 32 of 68 February 19, 2019, Item #1.8 19. AUTHORIZATION The signature of the Executive Director certifies that at the Board meeting held on March 7, 2019, the Wildlife Conservation Board authorized the award of a subgrant to Subgrantee as provided in this Agreement. IN WITNESS WHEREOF, this Subgrant Agreement is made and entered into this day of , 20 _, in the State of California, by and between the Wildlife Conservation Board and the City of Poway , each of which does hereby agree to the terms and conditions referenced on pages 1 through 15, along with Exhibits A — G, of this Agreement. STATE OF CALIFORNIA WILDLIFE CONSERVATION BOARD John P. Donnelly, Executive Director Date: City of Poway 0 Tina White, City Manager Date: 33 of 68 February 19, 2019, Item #1.8 EXHIBIT A (Legal Description and APNs of Property) The land referred to herein is situated in the State of California, County of San Diego, City of Poway and described as follows: PARCEL 1: APN: 316-020-04-00 The Southwest Quarter of the Northeast Quarter of Section 15, Township 14 South, Range 2 West, San Bernardino Base and Meridian, in the City of Poway, County of San Diego, State of California, according to the Official Plat thereof. PARCEL1A: A non-exclusive easement for vehicular and pedestrian access, ingress and egress, in, upon, over or across a portion of the Southeast Quarter of Section 15, Township 14 South, Range 2 West, as granted by Uri S. Ginzburg in the Grant of Access Easement recorded November 10, 2015 as Instrument No. 2015.0585473 of Official Records. PARCELIB: A non-exclusive easement for vehicular and pedestrian access, ingress and egress, in, upon, over or across a portion of the Northwest Quarter of the Southeast Quarter of Section 15, Township 14 South, Range 2 West as granted by Dandeana Corp., a California corporation in the Grant of Access Easement recorded May 27, 2016 as Instrument No. 2016-0261307 of Official Records, PARCEL1C; A non-exclusive easement for vehicular and pedestrian access, ingress and egress, in, upon, over or across a portion of the That portion of the Southwest Quarter, of the Southeast Quarter of Section 15, Township 14 South, Range 2 West, San Bernardino Base and Meridian, County of San Diego, State of California, according to Official Plat thereof, described as follows: Beginning at the Northeast cornet, of the Southwest Quartet, of the Southeast Quarter of said Section, thence along the North line thereof, North 890 16' 11" West 613.31 feet to the Northwesterly prolongation of the Westerly line of Poway Portal Unit No. 2, according to Map thereof No. 6407, filed in the Office of the County Recorder of San Diego County, thence South 13 24' 42" East 57.67 feet to the Northwest earner of said Unit No. 2, thence along the North line thereof and the Easterly prolongation, North 89 49' 18" East to the East line of said Southwest quarter, of the Southeast Quarter, thence along said line North 0° 30' 42" West 43.22 feet to the Point of Beginning, as granted by Uri S. Ginzburg in the Grant of Access Easement recorded June 08, 2017 as Instrument No. 2017-0256210 of Official Records. PARCEL 2: APN: 316-020-05-00 The Northwest Quarter of the Southeast Quarter of Section 15, Township 14 South, Range 2 West, San Bernardino Base and Meridian, in the City of Poway, County of San Diego, State of California, according to Official Plat thereof. PARCEL 2A: A non-exclusive easement for vehicular and pedestrian access, ingress and egress, in, upon, over or across a portion of the Southeast Quarter of Section 15, Township 14 34 of 68 February 19, 2019, Item #1.8 South, Range 2 West, as granted by Uri S. Ginzburg in the Grant of Access Easement recorded November 10, 2015 as Instrument No. 2015.0585473 of Official Records. PARCEL 26; A non-exclusive easement for vehicular and pedestrian access, ingress and egress, in, upon, over or across a portion of the That portion of the Southwest Quarter, of the Southeast Quarter of Section 15, Township 14 South, Range 2 West, San Bernardino Base and Meridian, County of San Diego, State of California, according to Official Plat thereof, described as follows: Beginning at the Northeast cornet, of the Southwest Quartet, of the Southeast Quarter of said Section, thence along the North line thereof, North 890 16' 11" West 613.31 feet to the Northwesterly prolongation of the Westerly line of Poway Portal Unit No. 2, according to Map thereof No. 6407, filed in the Office of the County Recorder of San Diego County, thence South 13 24' 42" East 57.67 feet to the Northwest earner of said Unit No. 2, thence along the North line thereof and the Easterly prolongation, North 89 49' 18" East to the East line of said Southwest quarter, of the Southeast Quarter, thence along said line North 00 30' 42" West 43.22 feet to the Point of Beginning, as granted by Uri S. Ginzburg in the Grant of Access Easement recorded June 08, 2017 as Instrument No. 2017-0256210 of Official Records. PARCEL 3: APN: 316-020-20-00 The Northwest Quarter of the Northwest Quarter of Section 15, Township 14 South, Range 2 West, San Bernardino Base and Meridian, in the City of Poway, County of San Diego, State of California, according to Official Plat thereof. PARCEL 3A: A non-exclusive easement for vehicular and pedestrian access, ingress and egress, in, upon, over or across a portion of the Southeast Quarter of Section 15, Township 14 South, Range 2 West, as granted by Uri S. Ginzburg in the Grant of Access Easement recorded November 10, 2015 as Instrument No. 2015.0585473 of Official Records. PARCEL 3B: A non-exclusive easement for vehicular and pedestrian access, ingress and egress, in, upon, over or across a portion of the Northwest Quarter of the Southeast Quarter of Section 15, Township 14 South, Range 2 West as granted by Dandeana Corp., a California corporation in the Grant of Access Easement recorded May 27, 2016 as Instrument No. 2016-0261307 of Official Records, PARCEL 3C: A non-exclusive easement for vehicular and pedestrian access, ingress and egress, in, upon, over or across a portion of the Southwest Quarter of the Northeast Quarter of Section 15, Township 14 South, Range 2 West as granted by Dandeana Corp., a California corporation in the Grant of Access Easement recorded May 27, 2016 as Instrument No. 2016-0261308 of Official Records PARCEL 3D; A non-exclusive easement for vehicular and pedestrian access, ingress and egress, in, upon, over or across a portion of the That portion of the Southwest Quarter, of the Southeast Quarter of Section 15, Township 14 South, Range 2 West, San Bernardino 18 35 of 68 February 19, 2019, Item #1.8 Base and Meridian, County of San Diego, State of California, according to Official Plat thereof, described as follows: Beginning at the Northeast cornet, of the Southwest Quartet, of the Southeast Quarter of said Section, thence along the North line thereof, North 890 16' 11" West 613.31 feet to the Northwesterly prolongation of the Westerly line of Poway Portal Unit No. 2, according to Map thereof No. 6407, filed in the Office of the County Recorder of San Diego County, thence South 13 24' 42" East 57.67 feet to the Northwest earner of said Unit No. 2, thence along the North line thereof and the Easterly prolongation, North 89 49' 18" East to the East line of said Southwest quarter, of the Southeast Quarter, thence along said line North 0° 30'42" West 43.22 feet to the Point of Beginning, as granted by Uri S. Ginzburg in the Grant of Access Easement recorded June 08, 2017 as Instrument No. 2017-0256210 of Official Records. PARCEL 4: APN: 316-020-21-00 The Northeast Quarter of the Northwest Quarter of Section 15, Township 14 South, Range 2 West, San Bernardino Base and Meridian, in the City of Poway, County of San Diego, State of California, according to Official Plat thereof: PARCEL4A: A non-exclusive easement for vehicular and pedestrian access, ingress and egress, in, upon, over or across a portion of the Southeast Quarter of Section 15, Township 14 South, Range 2 West, as granted by Uri S. Ginzburg in the Grant of Access Easement recorded November 10, 2015 as Instrument No. 2015.0585473 of Official Records. PARCEL4B: A non-exclusive easement for vehicular and pedestrian access, ingress and egress, in, upon, over or across a portion of the Northwest Quarter of the Southeast Quarter of Section 15, Township 14 South, Range 2 West as granted by Dandeana Corp., a California corporation in the Grant of Access Easement recorded May 27, 2016 as Instrument No. 2016-0261307 of Official Records, PARCEL4C A non-exclusive easement for vehicular and pedestrian access, ingress and egress, in, upon, over or across a portion of the Southwest Quarter of the Northeast Quarter of Section 15, Township 14 South, Range 2 West as granted by Dandeana Corp., a California corporation in the Grant of Access Easement recorded May 27, 2016 as Instrument No. 2016-0261308 of Official Records PARCEL4D A non-exclusive easement for vehicular and pedestrian access, ingress and egress, in, upon, over or across a portion of the That portion of the Southwest Quarter, of the Southeast Quarter of Section 15, Township 14 South, Range 2 West, San Bernardino Base and Meridian, County of San Diego, State of California, according to Official Plat thereof, described as follows: Beginning at the Northeast cornet, of the Southwest Quartet, of the Southeast Quarter of said Section, thence along the North line thereof, North 89° 16' 11" West 613.31 feet to the Northwesterly prolongation of the Westerly line of Poway Portal Unit No. 2, according to Map thereof No. 6407, filed in the Office of the County Recorder of San Diego County, thence South 13 24'42" East 57.67 feet to the Northwest earner of said Unit No. 2, thence along the North line thereof and the 19 36 of 68 February 19, 2019, Item #1.8 Easterly prolongation, North 89 49' 18" East to the East line of said Southwest quarter, of the Southeast Quarter, thence along said line North 00 30'42" West 43.22 feet to the Point of Beginning, as granted by Uri S. Ginzburg in the Grant of Access Easement recorded June 08, 2017 as Instrument No. 2017-0256210 of Official Records. APN: 316-020-04, 316-020-05, 316-020-20, and 316-020-21 20 37 of 68 February 19, 2019, Item #1.8 EXHIBIT B (Certification of No Regulatory Requirements) 38 of 68 February 19, 2019, Item #1.8 EXHIBIT C (Commitment to Management Funding) 39 of 68 February 19, 2019, Item #1.8 EXHIBIT D (Assurances and Certifications) 40 of 68 February 19, 2019, Item #1.8 EXHIBIT E (Certified Resolution or Other Action of Governing Body of Subgrantee) 41 of 68 February 19, 2019, Item #1.8 11 EXHIBIT F (WCB Logo) VCB State of California Wildlife Conservation Board 42 of 68 February 19, 2019, Item #1.8 EXHIBIT G (Notice of Unrecorded Subgrant Agreement) RECORDING REQUESTED BY: City of Poway Attn: City Manager 13325 Civic Center Drive Poway, CA 92064 WHEN RECORDED, RETURN TO: State of California ) Wildlife Conservation Board ) Attn: Executive Director ) Mailing address: 1416 9th Street, Room 1266 ) Sacramento, CA 95814 ) Project Name: City of Poway Subarea HCP-NCCP Space above line for Recorder's use Van Dam Cornerstone County: San Diego APN: 316-020-04, 316-020-05, 316-020-20, 316-020-21 NOTICE OF UNRECORDED SUBGRANT AGREEMENT (WITH COVENANTS AFFECTING REAL PROPERTY) This Notice of Unrecorded Subgrant Agreement ("Notice"), dated as of '20_, is made by the City of Poway ("Subgrantee") and recorded concurrently with the Deed described below, to provide notice of an agreement between Subgrantee and the Wildlife Conservation Board ("WCB"), a subdivision of the State of California, affecting the real property described below. 1. WCB and Subgrantee have entered into the California Wildlife Conservation Board Subgrant Agreement for Acquisition of Fee Interest, WCB Subgrant Agreement No. SG-1802SS (Section 6 Grant Agreement No. F17AP01090 ("Subgrant" or "Agreement"), pursuant to which WCB subgrants to Subgrantee certain Federal Grant Funds for Subgrantee's acquisition of fee title to approximately 162± acres of real property located in the County of San Diego, California (the "Property"), by Grant Deed (the "Deed") from The Trust for Public Land. The Property is legally described in Exhibit A attached to this Notice and incorporated in it by this reference. Initial - capitalized terms used in this Notice and not otherwise defined shall have the meaning set forth in the Subgrant. 2. Subgrantee agrees under the terms of the Subgrant to execute this Notice to give notice that Subgrantee received funds under the Agreement to assist Subgrantee in acquiring the Property and that, in consideration of the Subgrant Funds, Subgrantee has agreed to the terms of the Subgrant. The Subgrant is incorporated by reference into this Notice. 43 of 68 February 19, 2019, Item #1.8 3. Subgrantee covenants and agrees in Section 6.1 of the Agreement as follows: 3.1. The Property shall be held and used only in a manner that is consistent with the Agreement, including the following "Purposes of Subgrant" set forth in Section 3.2 of the Agreement: The Property shall be held and used for the purposes of ensuring that the land will be managed in perpetuity to conserve the acquired land to complement the City of Poway Subarea HCP/NCCP. Species to be conserved pursuant to this agreement may include but not be limited to: California coastal gnatcatcher, least Bell's vireo, southwestern willow flycatcher, Riverside fairy shrimp, vernal pool fairy shrimp, arroyo toad, spreading navarretia, San Diego ambrosia, San Diego button -celery, thread -leaved brodiaea and California Orcutt grass. (individually and collectively, the "Purposes of Subgrant"). 3.2. The Property shall be set aside in perpetuity for the purposes of conservation, including the Purposes of Subgrant. 3.3. Subgrantee shall comply with the terms and conditions of the award of Federal Grant Funds to the California Department of Fish and Wildlife ("CDFW"), to the extent such terms and conditions are applicable to Subgrantee, the Subgrant Funds or the Property. 3.4. Subgrantee shall pay before delinquency all taxes, assessments (general and special), fees, and charges of whatever description levied on or assessed against the Property by competent authority (collectively "Taxes'), and shall furnish [Grantor/WCB] with satisfactory evidence of payment upon request. Subrantee shall keep the Property free from any liens including, without limitation, those arising out of any obligations incurred by subgrantee for any labor or materials furnished or alleged to have been furnished to or for Grantee at or for use on the Property. 3.5 The Property (including any portion of it or any interest in it) shall not be sold, transferred, exchanged or otherwise conveyed without the written approval of the State of California (the "State"), acting through the Executive Director of WCB, or its successor, and the U.S. Department of the Interior, Fish and Wildlife Service ("USFWS") (to the extent required pursuant to the Federal Assistance Requirements). 3.6. The Property (including any portion of it or any interest in it) may not be used as security for any debt without the written approval of the State , acting through the Executive Director of WCB, or its successor, except to the extent the use of the Property as security is prohibited or limited by the Federal Assistance Requirements. 3.7. At the request of WCB, not less than once in any period of three calendar years, Subgrantee shall allow designated staff or representatives of WCB, CDFW and USFWS to access the Property to assess compliance with the terms, covenants and conditions of this Agreement. Provided, however, that if more frequent access is necessary to comply with 44 of 68 February 19, 2019, Item #1.8 applicable federal requirements (including, but not limited to, 50 C.F.R. Section 81.13) then Subgrantee shall allow designated staff or representatives of WCB, CDFW and USFWS access to the Property at such intervals as WCB, CDFW or USFWS considers appropriate to meet federal requirements to which it is subject. 4. Pursuant to Section 8 of the Agreement, in the event of a Default under the Agreement, in addition to any and all remedies available at law or in equity, WCB may seek specific performance of the Subgrant and may require Subgrantee to convey a conservation easement over the Property in favor of the State (or, at the election of WCB, another entity or organization authorized by California law to acquire and hold conservation easements), and to pay a sum to WCB which, when combined with the fair market value of the conservation easement, equals the amount of Subgrant Funds provided by the Agreement, together with interest thereon as provided in the Agreement. CDFW, as the Grantee under the Federal Grant Agreement, shall be an express third -party beneficiary of the Agreement and shall have the same rights and remedies as WCB in the event of a breach or Default by Subgrantee. 5. Pursuant to Section 9 of the Agreement, if Subgrantee is a nonprofit organization and the existence of Subgrantee is terminated for any reason, title to all interest in the Property acquired with Subgrant funds shall immediately vest in the State. However, prior to that termination, upon approval of the State, acting through the Executive Director of WCB or its successor, another public agency or nonprofit organization may receive title to all or a portion of that interest in the Property by recording its acceptance of title in writing. Any deed or other instrument of conveyance whereby the Property or any interest in it is being acquired by a nonprofit organization pursuant to this section shall be recorded and shall set forth the executory interest or right of entry on the part of the State. 6. Pursuant to Section 10 of the Agreement, the provisions of the Subgrant that are not fully performed as of the close of escrow shall survive the close of escrow for Subgrantee's acquisition of the Property and shall remain in full force and effect. 7. Pursuant to Section 11 of the Agreement, the Subgrant shall be binding upon Subgrantee and all designees, successors and assigns of Subgrantee. 8. Pursuant to Section 12 of the Agreement, if all or any part of the Property is taken by exercise of the power of eminent domain, or acquired by purchase in lieu of condemnation, WCB and Subgrantee shall act jointly to recover from the condemning authority the full value of the Property so taken or purchased, and all direct or incidental damages resulting therefrom. WCB shall be entitled to the share of the Award which equals the ratio of the Subgrant Funds provided by WCB to the total purchase price Subgrantee paid to acquire the Property. 9. This Notice is solely for the purpose of recording and in no way modifies the provisions of the Agreement. Subgrantee and WCB each has rights, duties and obligations under the Agreement which are not set forth in this Notice. To the extent the terms of this Notice conflict with the Agreement, the terms of the Agreement shall govern and control. 45 of 68 February 19, 2019, Item #1.8 10. For additional terms and conditions of the Agreement, reference should be made to the California Wildlife Conservation Board Subgrant Agreement for Acquisition of Fee Interest by and between WCB and Subgrantee that commenced '20—, and is on file with the Wildlife Conservation Board, 1700 9th St., 4 Floor, Sacraento, California 95811; mailing address: Wildlife Conservation Board, c/o Department of Fish and Wildlife, P. 0. Box 944209, Sacramento, CA 94244- 2090. CITY OF POWAY: Print Name: Tina White Title: City Manager [Notary Acknowledgment] 46 of 68 February 19, 2019, Item #1.8 PURCHASE AND SALE AGREEMENT THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is dated as of , 2019 and entered into by and between THE TRUST FOR PUBLIC LAND, a California nonprofit public benefit corporation (hereinafter called "Seller') and THE CITY OF POWAY, a general law city duly organized in the State of California (hereinafter called "Buyer"). Recitals A. The addresses and telephone numbers of the parties to this Agreement are as follows. Telephone numbers are included for information only. SELLER: The Trust for Public Land 101 Montgomery Street, Suite 900 San Francisco, CA 94104 Attn: Rachel Lem Tel: (415) 800-5286 Copies of any notice to Seller should also be sent to: The Trust for Public Land 101 Montgomery Street, Suite 900 San Francisco, CA 94104 Attn: Gilman Miller Tel: (415) 800-5295 BUYER: The City of Poway Poway City Hall 13325 Civic Center Drive Poway, CA 92064 Attn: Director of Development Services Tel: (858) 668-4601 Copies of any notice to Buyer should also be sent to: Rutan & Tucker, LLP 611 Anton Blvd., Suite 1400 Costa Mesa, CA 92626-1931 Attn: Alan Fenstermacher Tel: (714) 641-5100 B. Seller has entered or will enter into an agreement (the "TPL-Landowner Purchase Agreement") with (i) DANDEANA CORPORATION, a California S corporation; (ii) VAN DAM CORNERSTONE 20, LLC, a California Limited Liability Company; and (iii) VAN DAM CORNERSTONE 21, LLC, a California limited liability company (collectively, the "Landowner'), regarding Seller's desired acquisition of real property from said Landowner located in the City of Poway, San Diego County, State of California described as Assessor's Parcel Numbers 316- 020-04-00, 316-020-05-00, 316-020-20-00, and 316-020-21-00 described in Exhibit A attached hereto and incorporated herein by this reference. Under the TPL-Landowner Purchase Agreement, Seller has the right, subject to certain conditions, to acquire such real property, together with, to the extent owned by Landowner, all tenements, hereditaments, and appurtenances, including, improvements, fixtures, timber, water, crops, oil, gas and minerals located in, under, and on it, and all rights appurtenant to it, including but not limited to timber -1- 47 of 68 ATTACHMENT E February 19, 2019, Item #1.8 rights, water rights, grazing rights, access rights and oil, gas and mineral rights, development rights, air rights, and all other rights, privileges, licenses, and permits in any way related to or accruing to the use and benefit of that real property (collectively, the "Property"). C. Buyer wishes to purchase the Property from Seller once Seller has acquired the Property on the terms and conditions set forth in this Agreement. THE PARTIES AGREE AS FOLLOWS: 1. Purchase and Sale Aureement. For the consideration hereinafter set forth, but subject to the terms, provisions, covenants and conditions herein contained, and subject to Seller's acquisition of the Property from Landowner, Seller hereby agrees to convey, and Buyer hereby agrees to purchase and acquire, the Property. This Agreement shall be effective on the date that it is signed by both parties hereto (the "Effective Date"). 2. Purchase Price. The total purchase price (hereinafter called the "Purchase Price") to be paid by Buyer to Seller for the Property shall be One Million Six Hundred Twenty -Five Thousand Dollars ($1,625,000.00) which represents a the fair market value of the Property as set forth in that certain appraisal of the Property dated October 26, 2017 and prepared by Anderson & Brabant, Inc. (the "Appraisal"), payable all in cash. Buyer hereby acknowledges and agrees that it has reviewed and approved the Appraisal. 3. Property Condition. In addition to reviewing and approving the Appraisal, Buyer will have the opportunity to review a Phase I Environmental Site Assessment prepared by Advantage Environmental Consultants, LLC (the "Phase I ESA"). Buyer will have 30 days from receipt of the Phase I ESA to review and approve the report. 3.1 Title. (a) PTR. Seller has furnished to Buyer a preliminary title report dated as of November 19, 2018 (the "PTR") issued by the Stewart Title ("Title Company") and copies of all documents referred to as exceptions to title in the PTR. Buyer hereby acknowledges and agrees that it has reviewed and approved the PTR. Buyer only disapproves of title exception matters numbered 4, 11, 18, and 26, as shown in the PTR, (the "Disapproved Exceptions") which shall not be reflected on Buyer's title policy at the Close of Escrow. So long as no new exceptions to title are reflected in this updated or supplemental PTR, then Buyer agrees that it shall have no objections to any updated or supplemental PTR, other than the Disapproved Exceptions, and will not terminate this Agreement pursuant to the provisions of Section 3.4. (b) Monetary Liens. In any event and notwithstanding anything to the contrary herein, Seller shall provide that all monetary liens and encumbrances (except any statutory liens for nondelinquent real property taxes) are removed from title on or prior to the Close of Escrow. 3.2 Property Information. Except for the Appraisal, the Phase I ESA and the PTR, with copies of vesting and underlying exception documents, (collectively, the "Property Documents") Seller represents and warrants that it has no additional information about the Property and has not obtained any additional information from the Landowner with respect to the Property. Seller makes no representation or warranties of any kind whatsoever to Buyer as to the accuracy or completeness of the content of any documents or other information delivered -2- 48 of 68 February 19, 2019, Item #1.8 to Buyer pursuant to this Agreement, including, without limitation, the accuracy or completeness of the content of the Property Documents. 3.3 Property Inspection. Buyer shall not contact Landowner regarding Buyer's acquisition of the Property or in connection with its inspection of the Property pursuant to this Section 3.3. Notwithstanding anything to the contrary herein, Buyer's rights of inspection hereunder shall be subject to Seller's rights under the TPL-Landowner Purchase Agreement. From the Effective Date to the earlier of the Close of Escrow or the termination of this Agreement, Buyer shall have the right to physically inspect on a non -intrusive basis, and to the extent Buyer desires, to cause one or more representatives, agents, employees or contractors of Buyer (collectively, "Representatives") to physically inspect on a non -intrusive basis, the Property without interfering with Landowner's operation of the Property. Such inspections must occur during normal business hours at times mutually acceptable to Buyer, Landowner and Seller. Prior to entering onto the Property, Buyer, through its designated representative, shall provide verbal notice to Seller by notifying Seller by telephone or in person, at least ninety-six (96) hours prior to entry. Buyer shall make all inspections in good faith and with due diligence. Seller shall cooperate with Buyer in all reasonable respects in making such inspections (but without any obligation to incur expenses). 3.4 Changes in Condition. The time period from the Effective Date to the Close of Escrow shall be referred to as the "Term." (a) Seller's Notice. This Agreement shall refer to any of the following events as a "Change in Condition." (1) new exceptions to title which appear on any supplemental title report issued by the Title Company during the Term ("Supplemental PTR"); (2) receipt by Seller of actual notice during the Term of damage or destruction to the Property or any portion thereof which occurs during the Term; (3) receipt by Seller of actual notice during the Term of (i) any potential eminent domain proceedings affecting all or a portion of the Property, (ii) the commencement of such proceedings during the Term, or a (iii) a taking during the Term of all or a portion of the Property by eminent domain; or (4) receipt by Seller of information or change of circumstance which would make Seller's representations and warranties in Section 7 untrue as of the Closing Date. Seller shall notify Buyer of a Change in Condition promptly after Seller is aware of such Change in Condition. (b) Buyer's Options. If a material Change in Condition occurs which would prevent Buyer from using the Property for its intended use or which materially affects the value of the Property, Buyer shall have the right, at its option, as set forth in written notice delivered to Seller by the earlier of the end of the Term or ten (10) business days after Seller notifies Buyer of the Change in Condition, to either (i) terminate this Agreement and neither party shall have any further liability or obligation to the other except for Buyer's obligations which are expressly intended to survive; or (ii) proceed with the purchase of the Property, and accept the Property -3- 49 of 68 February 19, 2019, Item #1.8 without remedy for the Change in Condition, without any monetary credit, and without a reduction in the Purchase Price (except as set forth in this paragraph). If Buyer does not deliver any notice to Seller with such ten (10) business day period, Buyer shall be deemed to have elected option (ii). In the case of an insured casualty, if Buyer does not terminate this Agreement and agrees to accept the Property, all proceeds of any insurance payable to Seller by reason of such Change in Condition shall be paid or assigned to Buyer. In the case of a condemnation/eminent domain proceeding, if Buyer does not terminate the Agreement, the Purchase Price shall be reduced by the total of any awards or other proceeds received or to be received by Seller as a result of such proceedings or Buyer shall proceed to close with an assignment by Seller of all Seller's right, title and interest in and to all such awards and proceeds. 4. Escrow and Closing. 4.1 Escrow Holder. The parties will open an escrow with Stewart Title of California, Inc., (the "Escrow Holder"), located at 7676 Hazard Center Drive, Suite 1400, San Diego, CA 92108, Attn: Carla Burchard, Commercial Escrow Officer, cburchardCcilstewart.com for the purpose of consummating the purchase and sale of the Property in accordance with the terms hereof. Escrow shall close no later than May 15, 2019 (the "Closing Date") unless both Parties consent to extending the Closing Date deadline. The closing of the transaction shall be carried out pursuant to this Section 4. Consummation of the transaction pursuant to this Section 4 shall be referred to as the "Close of Escrow". 4.2 Documents. (a) Seller's Documents. At least one (1) business day prior to the Closing Date, Seller shall deposit into Escrow: (1) one (1) original duly executed, acknowledged and dated grant deed in a form suitable for recordation, conveying to Buyer fee simple title to the Property ("Grant Deed"), which shall be recorded in the Official Records of San Diego County, California at the Close of Escrow, in substantially the form attached hereto as Exhibit B; (2) one (1) original of an affidavit from Seller which satisfies the requirements of Section 1445 of the Internal Revenue Code, as amended duly executed by Seller in substantially the same form as set forth in attached Exhibit C; (3) one (1) counterpart signature on the joint escrow instructions between Buyer and Seller, which will be prepared consistent with the terms of this Agreement; (4) one (1) California Form 593-C duly executed by Seller; (5) such other instruments and documents as may be reasonably requested by Escrow Holder relating to Seller, to the Property and as otherwise required to transfer the Property to Buyer pursuant to the terms and conditions of this Agreement; and (b) Buyer's Documents. At least one (1) business day prior to the Closing Date, Buyer shall deposit into Escrow: (1) one (1) counterpart signature on the joint escrow instructions between Buyer and Seller, which will be prepared consistent with the terms of this Agreement; -4- 50 of 68 February 19, 2019, Item #1.8 (2) one (1) originally executed Certificate of Acceptance to be attached to the Grant Deed; and (3) such other instruments and documents as may be reasonably requested by Escrow Holder as otherwise required to transfer the Property to Buyer pursuant to the terms and conditions of this Agreement. 4.3 Funds. At least one (1) business day prior to the Closing Date, Buyer shall deposit (or cause the acquisition funding sources to deposit) into Escrow by wire transfer in an amount which shall equal the Purchase Price plus/minus any additional amounts necessary to cover costs, credits and/or prorations under this Agreement. If amounts are sent by check rather than wire transfer the checks must clear at least one (1) business day prior to the Closing Date. (a) Prorations. (1) All real and personal property taxes based on the most recent property tax bills available, bonds, additional taxes, special assessments, rents, issues and profits from the Property, and such other matters as the parties shall instruct Escrow Holder shall be prorated as of the Close of Escrow, or cancelled as of the date of Close of Escrow, if applicable. (2) Any tax bills received by Buyer after the Close of Escrow relating to a period prior to the Close of Escrow shall be prorated between the parties as if said tax bills had been available as of the Close of Escrow. The provisions of this Section 4.3(a)(2) shall survive the Close of Escrow. (b) Closing Costs. Buyer shall pay the following closing costs: (i) the escrow fee; (ii) all documentary tax, sales tax, or real property transfer tax, if applicable; and (iii) the premium for the Title Policy (defined in Section 4.5 below). All other fees and charges will be allocated according to custom of San Diego, California, the county in which the Property is located. Each party shall pay its own attorneys' fees and other expenses incurred by it in connection herewith. 4.4 Possession. Seller shall deliver possession of the Property to Buyer as of the Close of Escrow. 4.5 Title Insurance Policy. Title to the Property shall be insured effective as of Close of Escrow by a CLTA owner's policy of title insurance (the "Title Policy") issued by the Title Company with liability in the amount of the Purchase Price, insuring title to the Property to be vested in Buyer, subject only to current real estate taxes and assessments not delinquent, if applicable. Buyer agrees that its only remedy arising by reason of any defect in title shall be against the Title Company. 4.6 Conditions to Closing. If, upon the close of Escrow, any condition precedent set forth in this Section 4.6 is not satisfied or waived by the party for whose primary benefit it exists said benefited party may terminate this Agreement by written notice to the other party, and the parties shall have no further obligation to each other under this Agreement except for Buyer's obligations which are expressly intended to survive. -5- 51 of 68 February 19, 2019, Item #1.8 (a) Buyer's conditions. (1) All instruments described in Section 4.2(a) have been delivered to the Escrow Holder; (2) Title Company is in a position and is prepared to issue to Buyer the Title Policy; (3) All representations and warranties made by Seller in Section 6 below shall be true and correct in all material respects as of the Closing Date; (4) Seller shall have performed, observed and complied with all covenants, agreements and conditions required by this Agreement to be performed, observed and/or complied with by Seller prior to, or as of, the Closing Date; (5) Buyer receives Environmental Enhancement & Mitigation Program grant in the amount of Five Hundred Thousand Dollars ($500,000.00) which Buyer directs to escrow so that it may constitute a portion of the Purchase Price; and (6) Buyer receives Wildlife Conservation Board funding award in the amount of One Million Dollars ($1,000,000.00) which Buyer directs to escrow so that it may constitute a portion of the Purchase Price. (b) Seller's conditions. (1) All instruments described in Section 4.2(b) have been delivered to the Escrow Holder; (2) All funds described in Section 4.3 have been delivered to the Escrow Holder; (3) All representations and warranties made by Buyer in Section 7 below shall be true and correct in all material respects as of the Closing Date; and (4) Buyer shall have performed, observed and complied with all covenants, agreements and conditions required by this Agreement to be performed, observed and/or complied with by Buyer prior to, or as of, the Closing Date; (5) Seller shall have acquired the Property, which is subject to the terms and conditions of the TPL-Landowner Purchase Agreement; and (6) Seller receives approval of the transaction which is the subject of this Agreement by Seller's Board of Directors or Seller's Project Review Committee, which approval is subject to said Board's or Committee's sole discretion. 10 52 of 68 February 19, 2019, Item #1.8 5. Buver and Seller Covenants 5.1 No Interference. Buyer shall not interfere with or hinder the operation of the Property prior to the delivery of possession thereof to Buyer at the Close of Escrow. 5.2 Adequacy of Buyer's Inspection. Buyer agrees that it shall have had adequate access to the Property and shall have had the opportunity to conduct any and all inspections of the Property to its full and complete satisfaction. If Buyer acquires the Property from Seller, Buyer acknowledges that it will be purchasing the Property with full knowledge of any and all conditions of the Property. Buyer acknowledges that it is fully capable of evaluating the Property's suitability for Buyer's intended use. Buyer agrees that (i) Buyer shall be solely responsible for determining the status and condition of the Property (including the environmental condition of the Property); (ii) Buyer is relying solely upon such inspections, examination, and evaluation of the Property by Buyer in purchasing the Property. 5.3 AS -IS. The Property is being sold and conveyed hereunder and Buyer agrees to accept the Property "AS IS," "WHERE IS" and "WITH ALL FAULTS" and subject to any condition which may exist, without any representation or warranty by Seller except as expressly set forth in Section 6 hereof. Buyer acknowledges and agrees that, other than the representations and warranties set forth in Section 6 hereof, Seller makes no representations or warranties, express or implied, as to the Property, the Property Documents, or the transaction contemplated by this Agreement. Buyer acknowledges and agrees that, other than the representations and warranties set forth in Section 6 hereof, no person acting on behalf of Seller is authorized to make (and by the execution hereof, Buyer hereby agrees that no person has made) any representation, agreement, statement, warranty, guaranty or promise regarding the Property, the Property Documents or the transaction contemplated herein. Buyer acknowledges and agrees that no representation, warranty, agreement, statement, guaranty or promise, if any, made by any person acting on behalf of Seller which is not contained in Section 6 below shall be valid or binding upon Seller. Buyer hereby waives and relinquishes all rights and privileges arising out of, or with respect or in relation to, representations, warranties or covenants (other than the representation and warranties set forth in Section 6 hereof), whether express or implied, which may have been made or given, or which may be deemed to have been made or given, by Seller. Buyer hereby further acknowledges and agrees that warranties of merchantability and fitness for a particular purpose are excluded from the transaction contemplated hereby, as are any warranties arising from a course of dealing or usage of trade. 5.4. Signage. Any project signage erected on the Property shall state that: "The acquisition of this park site was completed with the help of The Trust For Public Land, a non- profit land conservation organization". 5.5 Sellers's Waiver of Relocation Benefits. Seller fully waives and releases any right to any relocation benefits, assistance and/or payments under California Government Code section 7260, et seq., notwithstanding that such relocation assistance, benefits and/or payments may be otherwise required under said sections or other state or federal law; and further waives and releases any right to compensation for any interest in the Property including, but not limited to, land and improvements, fixtures, furniture, or equipment thereon, goodwill, severance damage, attorneys' fees or any other compensation of any nature whatsoever. -7- 53 of 68 February 19, 2019, Item #1.8 NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT, THE PROVISIONS SET FORTH IN THIS SECTION 5 SHALL SURVIVE THE CLOSE OF ESCROW. 6. Seller's Representations and Warranties. Seller represents to Buyer that 6.1 Power and Authority. Seller is duly organized and legally existing. Subject to Section 4.6(b)(6), the execution and delivery by Seller of, and Seller's performance under, this Agreement is within Seller's powers and have been duly authorized by all requisite action, and the person executing this Agreement on behalf of Seller has the authority to do so. 6.2 Valid Agreement. Subject to Section 4.6(b)(6), this Agreement constitutes the legal, valid and binding obligation of Seller, enforceable in accordance with its terms, subject to laws applicable generally to applicable bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles affecting or limiting the right of contracting parties generally. 6.3 No Breach. Performance of this Agreement by Seller will not result in a breach of, or constitute any default under any agreement or instrument to which Seller is a party, which breach or default will adversely affect Seller's ability to perform its obligations under this Agreement. 6.4 Foreign Person. Seller is not a "foreign person" within the meaning of Section 1445 of the Internal Revenue Code of 1986 (i.e., Seller is not a non-resident alien, foreign corporation, foreign partnership, foreign trust or foreign estate as those terms are defined in the Code and regulations promulgated thereunder). 6.5 Bankruptcy. Seller (a) is not in receivership or dissolution; (b) has not made any assignment for the benefit of creditors; (c) has not admitted in writing its inability to pay its debts as they mature; (d) has not been adjudicated a bankrupt; (e) has not filed a petition in voluntary bankruptcy, a petition or answer seeking reorganization, or an arrangement with creditors under the Federal Bankruptcy Law or any other similar law or statute of the United States or any state, or (f) does not have any such petition described in Subparagraph (e) above filed against Seller. Buyer's Representations and Warranties. Buyer represents to Seller that: 7.1 Power and Authority. Buyer is a general law city in the State of California. The execution and delivery by Buyer of, and Buyer's performance under, this Agreement, are within Buyer's corporate powers and Buyer has the corporate authority to execute and deliver this Agreement. 7.2 Valid Agreement. This Agreement constitutes the legal, valid and binding obligation of Buyer enforceable in accordance with its terms, subject to laws applicable generally to applicable bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles affecting or limiting the rights of contracting parties generally. 7.3 No Breach. Performance of this Agreement will not result in any breach of, or constitute any default under, any agreement or other instrument to which Buyer is a party, which breach or default will adversely affect Buyer's ability to perform its obligations under this Agreement. -8- 54 of 68 February 19, 2019, Item #1.8 7.4 No Bankruptcy. Buyer (a) is not in receivership or dissolution, (b) has not made any assignment for the benefit of creditors, (c) has not admitted in writing its inability to pay its debts as they mature, (d) has not been adjudicated a bankrupt, (e) has not filed a petition in voluntary bankruptcy, a petition or answer seeking reorganization, or an arrangement with creditors under the federal bankruptcy law, or any other similar law or statute of the United States or any state, or (f) does not have any such petition described in (e) filed against Buyer. Remedies. 8.1 per's Remedies. If Seller defaults in the performance of any of Seller's obligations, promises, or agreements under this Agreement or if Seller breaches any of its representations or warranties hereunder ("Seller's Default"), Buyer shall be entitled to exercise any remedy available to Buyer by law or equity, including an action for specific performance and/or an action for damages, provided, however, that Buyer acknowledges that an action for specific performance against Seller will only be successful to the extent that Landowner performs under the TPL-Landowner Purchase Agreement and that if Landowner fails to perform its obligations under the TPL-Landowner Purchase Agreement through no fault of Seller, Seller shall not be liable for damages to Buyer. 8.2 Seller's Remedies. If Buyer defaults in the performance of any of Buyer's obligations, promises, or agreements under this Agreement or if Buyer breaches any of its representations or warranties hereunder ("Buyer's Default"), Seller shall be entitled to exercise any remedy available to Seller by law or equity, including an action for specific performance and/or an action for damages. 9. Miscellaneous. 9.1 No Broker. Each party represents to the other that it has not used a real estate broker or finder in connection with this Agreement or the transaction contemplated by this Agreement. If any person asserts a claim for a broker's commission or finder's fee against one of the parties to this Agreement, the party on account of whose conduct the claim is asserted shall indemnify and hold the other party harmless from and against any and all losses, liens, claims, judgments, liabilities, costs, expenses or damages (including reasonable attorneys' fees and court costs) of any kind or character arising out of or resulting from any agreement, arrangement or understanding alleged to have been made by such party or on its behalf with any broker or finder in connection with this Agreement or the transaction contemplated hereby. 9.2 Notices. All notices, requests, demands, approvals, consents or other communications required or permitted by this Agreement shall be addressed as set forth in Recital A, shall be in writing and shall be sent by (a) nationally recognized overnight courier, or (b) facsimile or telecopy and shall be deemed received (i) if delivered by overnight courier, when received as evidenced by a receipt, or (ii) if given by facsimile or telecopy, when sent with confirmation of receipt. Any notice, request, demand, direction or other communication sent by facsimile or telecopy must also be sent within forty-eight (48) hours by letter mailed or delivered in accordance with the foregoing. Buyer and Seller hereby agree that notices may be given hereunder by the parties' respective counsel and that, if any communication is to be given hereunder by Buyer's or Seller's counsel, such counsel may communicate directly with all principals as required to comply with the provisions of this Section. Notice of change of address shall be given by written notice and in the manner detailed in this Section 9.2. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to constitute receipt of the notice, demand, request or other 91 55 of 68 February 19, 2019, Item #1.8 communication sent. 9.3 Assignment. Buyer may not assign its rights under this Agreement, and any assignment by Buyer in contravention of this provision shall be void and shall not relieve Buyer of its obligations and liabilities hereunder. 9.4 Attorneys' Fees and Legal Expenses. Should either party hereto institute any action or proceeding in court or through arbitration to enforce any provision hereof or for damages by reason of any alleged breach of any provision of this Agreement or for any other remedy, the prevailing party shall be entitled to receive from the losing party all of its costs and expenses, including, without limitation, reasonable attorneys' fees and all court and/or arbitration costs, costs of appeal and disbursements actually and reasonably incurred in connection with said proceeding. 9.5 Section Headings. The Section headings contained in this Agreement are for convenience only and shall in no way enlarge or limit the scope or meaning of the various and several Sections hereof. 9.6 Entire Agreement. This Agreement embodies the entire agreement between the parties hereto and supersedes any prior understandings or written or oral agreements between the parties concerning the Property. 9.7 Independent Counsel. Each party to this Agreement has substantial experience with the subject matter of this Agreement and has each fully participated in the negotiation and drafting of this Agreement and has had the opportunity to be advised by counsel of its choice with respect to the subject matter hereof. Accordingly, this Agreement shall be construed without regard to the rule that ambiguities in a document are to be construed against the drafter. 9.8 Applicability. The terms and provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns, except as expressly set forth herein. 9.9 Time. TIME IS OF THE ESSENCE IN THE PERFORMANCE OF THE PARTIES' OBLIGATIONS UNDER THIS AGREEMENT. 9.10 Counterpart Execution; Facsimile. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original and all of which together shall constitute one document. This Agreement may also be executed and delivered via facsimile and a facsimile signature shall have the same legal effect as an original signature. 9.11 Applicable Law. This Agreement shall be construed and interpreted in accordance with the laws of the State of California. 9.12 Time Calculations. Should the calculation of any of the various time periods provided for herein result in an obligation becoming due on a Saturday, Sunday or legal holiday, then the due date of such obligation or scheduled time of occurrence of such event shall be delayed until the next business day. 9.13 Merger Provision. Except as expressly set forth herein, any and all rights of action of Buyer for any breach by Seller of any representation, warranty or covenant contained in this Agreement shall merge with the Grant Deed and other instruments executed at Close of -10- 56 of 68 February 19, 2019, Item #1.8 Escrow, shall terminate at the Close of Escrow and shall not survive the Close of Escrow. All other provisions of this Agreement which are intended by their terms to survive the Close of Escrow or a termination of this Agreement shall survive the Close of Escrow or a termination of this Agreement. 9.14 Further Assurances. Buyer and Seller agree to execute all documents and instruments reasonably required in order to consummate the purchase and sale herein contemplated and to do such further acts as may be necessary, desirable or proper to carry out more effectively the purposes of this Agreement. 9.15 Severability. If any portion of this Agreement is held to be unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall remain in full force and effect. 9.16 Amendments. This Agreement may be amended only by written agreement signed by both of the parties hereto. 9.17 Exhibits Incorporated by Reference. All exhibits attached to this Agreement are incorporated into this Agreement by reference. 9.18 No Waiver. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver. IN WITNESS WHEREOF, the parties have executed this Agreement of Purchase and Sale as evidenced by their respective signatures below. SELLER THE TRUST FOR PUBLIC LAND, a California nonprofit public benefit corporation 0 Gilman Miller, Senior Counsel Date: BUYER THE CITY OF POWAY, a California general law city By: _ Name: Title: -11- 57 of 68 February 19, 2019, Item #1.8 APPROVED AS TO FORM: Title: -12- 58 of 68 February 19, 2019, Item #1.8 EXHIBIT A Legal Description of the Real Property All that real property situated in the State of California, County of San Diego, City of Poway and described as follows: PARCEL 1: APN: 316-020-04-00 The Southwest Quarter of the Northeast Quarter of Section 15, Township 14 South, Range 2 West, San Bernardino Base and Meridian, in the City of Poway, County of San Diego, State of California, according to the Official Plat thereof. PARCEL1A: A non-exclusive easement for vehicular and pedestrian access, ingress and egress, in, upon, over or across a portion of the Southeast Quarter of Section 15, Township 14 South, Range 2 West, as granted by Uri S. Ginzburg in the Grant of Access Easement recorded November 10, 2015 as Instrument No. 2015.0585473 of Official Records. PARCEL1B: A non-exclusive easement for vehicular and pedestrian access, ingress and egress, in, upon, over or across a portion of the Northwest Quarter of the Southeast Quarter of Section 15, Township 14 South, Range 2 West as granted by Dandeana Corp., a California corporation in the Grant of Access Easement recorded May 27, 2016 as Instrument No. 2016-0261307 of Official Records, PARCEL1C; A non-exclusive easement for vehicular and pedestrian access, ingress and egress, in, upon, over or across a portion of the That portion of the Southwest Quarter, of the Southeast Quarter of Section 15, Township 14 South, Range 2 West, San Bernardino Base and Meridian. County of San Diego, State of California, according to Official Plat thereof, described as follows: Beginning at the Northeast cornet, of the Southwest Quartet, of the Southeast Quarter of said Section, thence along the North line thereof, North 890 16' 11" West 613.31 feet to the Northwesterly prolongation of the Westerly line of Poway Portal Unit No. 2, according to Map thereof No. 6407, filed in the Office of the County Recorder of San Diego County, thence South 13 24' 42" East 57.67 feet to the Northwest earner of said Unit No. 2, thence along the North line thereof and the Easterly prolongation, North 89 49' 18" East to the East line of said Southwest quarter, of the Southeast Quarter, thence along said line North 0° 30'42" West 43.22 feet to the Point of Beginning, as granted by Uri S. Ginzburg in the Grant of Access Easement recorded June 08, 2017 as Instrument No. 2017-0256210 of Official Records. PARCEL 2: APN: 316-020-05-00 The Northwest Quarter of the Southeast Quarter of Section 15, Township 14 South, Range 2 West, San Bernardino Base and Meridian, in the City of Poway. County of San Diego, State of California, according to Official Plat thereof. PARCEL2A: A non-exclusive easement for vehicular and pedestrian access, ingress and egress, in, upon, over or across a portion of the Southeast Quarter of Section 15, Township 14 South, Range 2 West, as granted by Uri S. Ginzburg in the Grant of Access Easement recorded November 10, 2015 as Instrument No. 2015.0585473 of Official Records. PARCEL2B; -13- 59 of 68 February 19, 2019, Item #1.8 A non-exclusive easement for vehicular and pedestrian access, ingress and egress, in, upon, over or across a portion of the That portion of the Southwest Quarter, of the Southeast Quarter of Section 15, Township 14 South, Range 2 West, San Bernardino Base and Meridian, County of San Diego, State of California, according to Official Plat thereof, described as follows: Beginning at the Northeast cornet, of the Southwest Quartet, of the Southeast Quarter of said Section, thence along the North line thereof, North 89° 16' 11" West 613.31 feet to the Northwesterly prolongation of the Westerly line of Poway Portal Unit No. 2, according to Map thereof No. 6407, filed in the Office of the County Recorder of San Diego County, thence South 13 24'42" East 57.67 feet to the Northwest earner of said Unit No. 2, thence along the North line thereof and the Easterly prolongation, North 89 49' 18" East to the East line of said Southwest quarter, of the Southeast Quarter, thence along said line North 00 30'42" West 43.22 feet to the Point of Beginning, as granted by Uri S. Ginzburg in the Grant of Access Easement recorded June 08, 2017 as Instrument No. 2017-0256210 of Official Records. PARCEL 3: APN: 316-020-20-00 The Northwest Quarter of the Northwest Quarter of Section 15, Township 14 South, Range 2 West, San Bernardino Base and Meridian, in the City of Poway, County of San Diego, State of California, according to Official Plat thereof. PARCEL 3A: A non-exclusive easement for vehicular and pedestrian access, ingress and egress, in, upon, over or across a portion of the Southeast Quarter of Section 15, Township 14 South, Range 2 West, as granted by Uri S. Ginzburg in the Grant of Access Easement recorded November 10, 2015 as Instrument No. 2015.0585473 of Official Records. PARCEL 3B: A non-exclusive easement for vehicular and pedestrian access, ingress and egress, in, upon, over or across a portion of the Northwest Quarter of the Southeast Quarter of Section 15, Township 14 South, Range 2 West as granted by Dandeana Corp., a California corporation in the Grant of Access Easement recorded May 27, 2016 as Instrument No. 2016-0261307 of Official Records, PARCEL 3C: A non-exclusive easement for vehicular and pedestrian access, ingress and egress, in, upon, over or across a portion of the Southwest Quarter of the Northeast Quarter of Section 15, Township 14 South, Range 2 West as granted by Dandeana Corp., a California corporation in the Grant of Access Easement recorded May 27, 2016 as Instrument No. 2016-0261308 of Official Records PARCEL 3D; A non-exclusive easement for vehicular and pedestrian access, ingress and egress, in, upon, over or across a portion of the That portion of the Southwest Quarter, of the Southeast Quarter of Section 15, Township 14 South, Range 2 West, San Bernardino Base and Meridian, County of San Diego, State of California, according to Official Plat thereof, described as follows: Beginning at the Northeast cornet, of the Southwest Quartet, of the Southeast Quarter of said Section, thence along the North line thereof, North 890 16' 11" West 613.31 feet to the Northwesterly prolongation of the Westerly line of Poway Portal Unit No. 2, according to Map thereof No. 6407, filed in the Office of the County Recorder of San Diego County, thence South 13 24'42" East 57.67 feet to the Northwest earner of said Unit No. 2, thence along the North line thereof and the Easterly prolongation, North 89 49' 18" East to the East line of said Southwest quarter, of the Southeast Quarter, thence along said line North -14- 60 of 68 February 19, 2019, Item #'1.8 00 30'42" West 43.22 feet to the Point of Beginning, as granted by Uri S. Ginzburg in the Grant of Access Easement recorded June 08, 2017 as Instrument No. 2017-0256210 of Official Records. PARCEL 4: APN: 316-020-21-00 The Northeast Quarter of the Northwest Quarter of Section 15, Township 14 South, Range 2 West, San Bernardino Base and Meridian, in the City of Poway, County of San Diego, State of California, according to Official Plat thereof: PARCEL 4A A non-exclusive easement for vehicular and pedestrian access, ingress and egress, in, upon, over or across a portion of the Southeast Quarter of Section 15, Township 14 South, Range 2 West, as granted by Uri S. Ginzburg in the Grant of Access Easement recorded November 10, 2015 as Instrument No. 2015.0585473 of Official Records. PARCEL 4B: A non-exclusive easement for vehicular and pedestrian access, ingress and egress, in, upon, over or across a portion of the Northwest Quarter of the Southeast Quarter of Section 15, Township 14 South, Range 2 West as granted by Dandeana Corp., a California corporation in the Grant of Access Easement recorded May 27, 2016 as Instrument No. 2016-0261307 of Official Records, PARCEL 4C A non-exclusive easement for vehicular and pedestrian access, ingress and egress, in, upon, over or across a portion of the Southwest Quarter of the Northeast Quarter of Section 15, Township 14 South, Range 2 West as granted by Dandeana Corp., a California corporation in the Grant of Access Easement recorded May 27, 2016 as Instrument No. 2016-0261308 of Official Records PARCEL4D A non-exclusive easement for vehicular and pedestrian access, ingress and egress, in, upon, over or across a portion of the That portion of the Southwest Quarter, of the Southeast Quarter of Section 15, Township 14 South, Range 2 West, San Bernardino Base and Meridian, County of San Diego, State of California, according to Official Plat thereof, described as follows: Beginning at the Northeast cornet, of the Southwest Quartet, of the Southeast Quarter of said Section, thence along the North line thereof, North 890 16' 11" West 613.31 feet to the Northwesterly prolongation of the Westerly line of Poway Portal Unit No. 2, according to Map thereof No. 6407, filed in the Office of the County Recorder of San Diego County, thence South 13 24'42" East 57.67 feet to the Northwest earner of said Unit No. 2, thence along the North line thereof and the Easterly prolongation, North 89 49' 18" East to the East line of said Southwest quarter, of the Southeast Quarter, thence along said line North 00 30'42" West 43.22 feet to the Point of Beginning, as granted by Uri S. Ginzburg in the Grant of Access Easement recorded June 08, 2017 as Instrument No. 2017-0256210 of Official Records. APN: 316-020-04, 316-020-05, 316-020-20, and 316-020-21 (End of Legal Description) -15- 61 of 68 February 19, 2019, Item #1.8 EXHIBIT B Form of Grant Deed Recording Requested By and When Recorded Mail to: The City of Poway Poway City Hall 13325 Civic Center Drive Poway, CA 92064 Attn: Director of Development Services GRANT DEED Assessor Parcel Numbers: 316-020-04-00, 316-020-05-00, 316-020-20-00, 316-020-21-00 For valuable consideration, receipt of which is acknowledged, The Trust for Public Land, a California nonprofit public benefit corporation ("Grantor"), hereby grants to the City of Poway, a general law city ("Grantee"), the real property in the City of Poway, County of San Diego, State of California, described in Exhibit A attached hereto and made a part hereof (the "Property"). TOGETHER WITH all of the right, title, and interest in all minerals and mineral rights of every name, nature, kind and description including coal, oil, gas, petroleum and the products thereof and to the geothermal rights which are owned by GRANTOR and which are upon or appurtenant to said land. TOGETHER with the tenements, hereditaments, and appurtenances thereunto belonging or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof. This conveyance is an AS -IS transaction and is also subject to all other matters appearing of record or known to Grantee that can be ascertained by an inspection of said Property and is made without any warranty expressed or implied as to the suitability of said Property for any purpose. This Property was purchased in part with grant funds provided by the State of California under The Environmental Enhancement and Mitigation Program. The burdened Property currently consists of 162.31 acres of vacant land located north of Poway Road and west of Pomerado Road in Poway, California and is more particularly described as Assessor Parcel Numbers 316-020-04; 316-020-05; 316-020-20; and 316-020-21. Grantee desires and intends that, in order to provide public benefit and meet the terms of the funding, the burdened Property shall be used for purposes consistent with funding. The restrictions imposed on the burdened Property shall run with the land and pass with each and every portion of the Property and shall apply to and bind the respective successors in interest. Use of the burdened Property shall exclusively be as public open space. If access for the public ever needs to change location, scope, or scale, owner will seek consent from the -16- 62 of 68 February 19, 2019, Item #1.8 State of California, acting by and through the Natural Resources Agency or its successor in interest. The real Property (including any portion of it or any interest in it) may not be sold or transferred without the written approval of the State of California Natural Resources Agency, or its successor, provided that such approval shall not be unreasonably withheld, as the purposes for which the funding was awarded are expressly assumed by the purchaser as part of the purchase agreement and prior to the close of escrow. Responsibilities to maintain and operate the Property in accordance with these restrictions may be assigned only upon the written approval of the State, acting by and through the Natural Resources Agency, or its successor in interest. Obligations for operation and maintenance of the burdened Property may be excused only upon the written approval of the State, acting by and through the Natural Resources Agency, or its successor in interest, and only for good cause. Good cause includes, but is not limited to natural disasters that destroy the Property improvements and render the project obsolete or impracticable to rebuild. Good cause shall not include more expedient or economically beneficial development. The Grantee shall not use or allow the use of any portion of the real Property for mitigation without the written permission of the State, acting by and through the Natural Resources Agency or its successor in interest. The Grantee shall not use or allow the use of any portion of the real Property as security for any debt. IN WITNESS WHEREOF, Grantor has caused this instrument to be duly executed. Dated: 12019. GRANTOR: THE TRUST FOR PUBLIC LAND, a California nonprofit public benefit corporation M Gilman Miller. Senior Counsel 63 of 68 February 19, 2019, Item #1.8 EXHIBIT A TO GRANT DEED Legal Description of the Real Property All that real property situated in the State of California, County of San Diego, City of Poway and described as follows: PARCEL 1: APN: 316-020-04-00 The Southwest Quarter of the Northeast Quarter of Section 15, Township 14 South, Range 2 West, San Bernardino Base and Meridian, in the City of Poway, County of San Diego, State of California, according to the Official Plat thereof. PARCEL 1A: A non-exclusive easement for vehicular and pedestrian access, ingress and egress, in, upon, over or across a portion of the Southeast Quarter of Section 15, Township 14 South, Range 2 West, as granted by Uri S. Ginzburg in the Grant of Access Easement recorded November 10, 2015 as Instrument No. 2015.0585473 of Official Records. PARCEL1B: A non-exclusive easement for vehicular and pedestrian access, ingress and egress, in, upon, over or across a portion of the Northwest Quarter of the Southeast Quarter of Section 15, Township 14 South, Range 2 West as granted by Dandeana Corp., a California corporation in the Grant of Access Easement recorded May 27, 2016 as Instrument No. 2016-0261307 of Official Records, PARCEL1C; A non-exclusive easement for vehicular and pedestrian access, ingress and egress, in, upon, over or across a portion of the That portion of the Southwest Quarter, of the Southeast Quarter of Section 15, Township 14 South, Range 2 West, San Bernardino Base and Meridian, County of San Diego, State of California, according to Official Plat thereof, described as follows: Beginning at the Northeast cornet, of the Southwest Quartet, of the Southeast Quarter of said Section, thence along the North line thereof, North 89° 16' 11" West 613.31 feet to the Northwesterly prolongation of the Westerly line of Poway Portal Unit No. 2, according to Map thereof No. 6407, filed in the Office of the County Recorder of San Diego County, thence South 13 24'42" East 57.67 feet to the Northwest earner of said Unit No. 2, thence along the North line thereof and the Easterly prolongation, North 89 49' 18" East to the East line of said Southwest quarter, of the Southeast Quarter, thence along said line North 0° 30'42" West 43.22 feet to the Point of Beginning, as granted by Uri S. Ginzburg in the Grant of Access Easement recorded June 08, 2017 as Instrument No. 2017-0256210 of Official Records. PARCEL 2: APN: 316-020-05-00 The Northwest Quarter of the Southeast Quarter of Section 15, Township 14 South, Range 2 West, San Bernardino Base and Meridian, in the City of Poway, County of San Diego, State of California, according to Official Plat thereof. -18- 64 of 68 February 19, 2019, Item #1.8 PARCEL 2A: A non-exclusive easement for vehicular and pedestrian access, ingress and egress, in, upon, over or across a portion of the Southeast Quarter of Section 15, Township 14 South, Range 2 West, as granted by Uri S. Ginzburg in the Grant of Access Easement recorded November 10, 2015 as Instrument No. 2015.0585473 of Official Records. PARCEL 2B; A non-exclusive easement for vehicular and pedestrian access, ingress and egress, in, upon, over or across a portion of the That portion of the Southwest Quarter, of the Southeast Quarter of Section 15, Township 14 South, Range 2 West, San Bernardino Base and Meridian, County of San Diego, State of California, according to Official Plat thereof, described as follows: Beginning at the Northeast cornet, of the Southwest Quartet, of the Southeast Quarter of said Section, thence along the North line thereof, North 89° 16' 11" West 613.31 feet to the Northwesterly prolongation of the Westerly line of Poway Portal Unit No. 2, according to Map thereof No. 6407, filed in the Office of the County Recorder of San Diego County, thence South 13 24'42" East 57.67 feet to the Northwest earner of said Unit No. 2, thence along the North line thereof and the Easterly prolongation, North 89 49' 18" East to the East line of said Southwest quarter, of the Southeast Quarter, thence along said line North 0° 30'42" West 43.22 feet to the Point of Beginning, as granted by Uri S. Ginzburg in the Grant of Access Easement recorded June 08, 2017 as Instrument No. 2017-0256210 of Official Records. PARCEL 3: APN: 316-020-20-00 The Northwest Quarter of the Northwest Quarter of Section 15, Township 14 South, Range 2 West, San Bernardino Base and Meridian, in the City of Poway, County of San Diego, State of California, according to Official Plat thereof. PARCEL 3A: A non-exclusive easement for vehicular and pedestrian access, ingress and egress, in, upon, over or across a portion of the Southeast Quarter of Section 15, Township 14 South, Range 2 West, as granted by Uri S. Ginzburg in the Grant of Access Easement recorded November 10, 2015 as Instrument No. 2015.0585473 of Official Records. PARCEL 3B: A non-exclusive easement for vehicular and pedestrian access, ingress and egress, in, upon, over or across a portion of the Northwest Quarter of the Southeast Quarter of Section 15, Township 14 South, Range 2 West as granted by Dandeana Corp., a California corporation in the Grant of Access Easement recorded May 27, 2016 as Instrument No. 2016-0261307 of Official Records, PARCEL 3C: A non-exclusive easement for vehicular and pedestrian access, ingress and egress, in, upon, over or across a portion of the Southwest Quarter of the Northeast Quarter of Section 15, Township 14 South, Range 2 West as granted by Dandeana Corp., a California corporation in -19- 65 of 68 February 19, 2019, Item #1.8 the Grant of Access Easement recorded May 27, 2016 as Instrument No. 2016-0261308 of Official Records PARCEL 3D; A non-exclusive easement for vehicular and pedestrian access, ingress and egress, in, upon, over or across a portion of the That portion of the Southwest Quarter, of the Southeast Quarter of Section 15, Township 14 South, Range 2 West, San Bernardino Base and Meridian, County of San Diego, State of California, according to Official Plat thereof, described as follows: Beginning at the Northeast cornet, of the Southwest Quartet, of the Southeast Quarter of said Section, thence along the North line thereof, North 89° 16' 11" West 613.31 feet to the Northwesterly prolongation of the Westerly line of Poway Portal Unit No. 2, according to Map thereof No. 6407, filed in the Office of the County Recorder of San Diego County, thence South 13 24'42" East 57.67 feet to the Northwest earner of said Unit No. 2, thence along the North line thereof and the Easterly prolongation, North 89 49' 18" East to the East line of said Southwest quarter, of the Southeast Quarter, thence along said line North 0° 30'42" West 43.22 feet to the Point of Beginning, as granted by Uri S. Ginzburg in the Grant of Access Easement recorded June 08, 2017 as Instrument No. 2017-0256210 of Official Records. PARCEL 4: APN: 316-020-21-00 The Northeast Quarter of the Northwest Quarter of Section 15, Township 14 South, Range 2 West, San Bernardino Base and Meridian, in the City of Poway, County of San Diego, State of California, according to Official Plat thereof: PARCEL4A: A non-exclusive easement for vehicular and pedestrian access, ingress and egress, in, upon, over or across a portion of the Southeast Quarter of Section 15, Township 14 South, Range 2 West, as granted by Uri S. Ginzburg in the Grant of Access Easement recorded November 10, 2015 as Instrument No. 2015.0585473 of Official Records. PARCEL 4B: A non-exclusive easement for vehicular and pedestrian access, ingress and egress, in, upon, over or across a portion of the Northwest Quarter of the Southeast Quarter of Section 15, Township 14 South, Range 2 West as granted by Dandeana Corp., a California corporation in the Grant of Access Easement recorded May 27, 2016 as Instrument No. 2016-0261307 of Official Records, PARCEL4C A non-exclusive easement for vehicular and pedestrian access, ingress and egress, in, upon, over or across a portion of the Southwest Quarter of the Northeast Quarter of Section 15, Township 14 South, Range 2 West as granted by Dandeana Corp., a California corporation in the Grant of Access Easement recorded May 27, 2016 as Instrument No. 2016-0261308 of Official Records PARCEL4D -20- 66 of 68 February 19, 2019, Item #1.8 A non-exclusive easement for vehicular and pedestrian access, ingress and egress, in, upon, over or across a portion of the That portion of the Southwest Quarter, of the Southeast Quarter of Section 15, Township 14 South, Range 2 West, San Bernardino Base and Meridian, County of San Diego, State of California, according to Official Plat thereof, described as follows: Beginning at the Northeast cornet, of the Southwest Quartet, of the Southeast Quarter of said Section, thence along the North line thereof, North 89° 16' 11" West 613.31 feet to the Northwesterly prolongation of the Westerly line of Poway Portal Unit No. 2, according to Map thereof No. 6407, filed in the Office of the County Recorder of San Diego County, thence South 13 24' 42" East 57.67 feet to the Northwest earner of said Unit No. 2, thence along the North line thereof and the Easterly prolongation, North 89 49' 18" East to the East line of said Southwest quarter, of the Southeast Quarter, thence along said line North 0° 30'42" West 43.22 feet to the Point of Beginning, as granted by Uri S. Ginzburg in the Grant of Access Easement recorded June 08, 2017 as Instrument No. 2017-0256210 of Official Records. APN: 316-020-04, 316-020-05, 316-020-20, and 316-020-21 (End of Legal Description) -21- 67 of 68 February 19, 2019, Item #1.8 EXHIBIT C Form of Non -foreign Affidavit CERTIFICATION BY ENTITY TRANSFEROR THAT IS NOT A FOREIGN CORPORATION, PARTNERSHIP, TRUST OR ESTATE Section 1445 of the Internal Revenue Code provides that a transferee of a U.S. real property interest must withhold tax if the transferor is a foreign corporation, partnership, trust or estate. To inform the transferee that withholding of tax is not required upon the disposition of a U.S. real property interest by THE TRUST FOR PUBLIC LAND, a California nonprofit public benefit corporation ("Transferor"), the undersigned hereby certifies the following, on behalf of Transferor: a. Transferor is not a foreign corporation, foreign partnership, foreign trust or foreign estate (as those terms are defined in the Internal Revenue Code and Income Tax Regulations); b. The U.S. employer identification number of Transferor is 23-7222333; and c. Transferor's office address is: 101 Montgomery Street, Suite 900, San Francisco, CA 94104 Transferor understands that this certification may be disclosed to the Internal Revenue Service by the transferee and that any false statement contained herein could be punished by fine, imprisonment, or both. Under penalty of perjury, I declare that I have examined this certificate and to the best of my knowledge and belief, it is true, correct and complete. Dated: 2019. TRANSFEROR: THE TRUST FOR PUBLIC LAND, a California nonprofit public benefit corporation By: Gilman Miller, Senior Counsel -22- 68 of 68 February 19, 2019, Item #1.8