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Conservation Easement Deed 2005-0180169 , - . oaf! 2005-0180169 n 11111111111111111 I!I 11111 11111 11111 11111 11111 11111 11111 11111 1111 1111 f1R- , , . , ~ RECORDING REQUESTED BY I"{"'.F: ,'14 ,,\":'5 1141 ",.1"'1 CITY OF POWAY OFFII]."L F:ECOFI['S '..J,i.lJ~ [IIEC10 COUNT', REuJF:[IEFi"=, OFFICE I::iFiECiOR"1 ,I ':;MITH [0 U r',H' , F:EI IlR[IER ~ WHEN RECORDED MAIL TO: FEE~,. U.IXI CI:rY CLERK DC II." CIJ'YpF"l:>OWAY P~bE'" 11 11083 POBOX 789. 11111111111111111111111111111111111111111111111111111111111111111111111111111111 POWAY CA 92074-0789 tipace 2005-0180169 APN 320,,020,,28 Project No. MORA 03-61, ACP05-01 CONSERVATION EASEMENT DEED NO DocuMENTARY TRANSFEFfTAX DUE THIS CONSERVATlONEASEMENT DEED is made this /7 day of reO~/7 2005, by Dennis G Miller and Lisa L. Charl-Miller, ("Grantor"), in favor .of City of Poway ("Grantee"), acting by and through its Development Services Department, with reference to the following facts. RECITALS A. Grantor is the sole owner in fee simple of certain real property in the City of Poway, County of San Diego, State of California, more particularly described in Exhibit "A" and Exhibit "B" attached hereto and incorporated by this reference (the "Property"). B. The Property possesses wi.ldlife and habitat values (collectively, "conservation values") of great importance to the Grantee, the people of the City of Poway, the people of the State .of California, and the people of the United States. C The Property provides' high quality Coastal Sage Scrub. Coastal Sage Scrub is the habitat of the California Gnatcatcher, which is listed as a threatened species on the Federal Endangered Species list. Conservation of this property therefore will preserve habitat of a protected species. D The City of Poway is authorized to hold conservation easements for the preser~ation of land in its natural, scenic, agricultural, historical, forested, or open space condition. The City of Poway has authority to hold easements for these purposes pursuant to California'Civic Code Section 815.3(b). E. The State of California, by and through its Department of Fish and Game (CDFG), has jurisdiction, pursuant to the Fish and Game Code Section 1802, over the conservation, protection, and management of fish, wildlife, native plants and the habitat necessary for biologically sustainable populations of those species. F The United States Fish and Wildlife Services (USFWS) has jurisdiction over the conservation, protection, restoration, enhancement ancj management of fish, wildlife and native plants and the habitats on which they depend under the Endangered Species Act, 16 U.S.C section 1531 et seq (ESA), the Fish and Wildlife Coordination Act, 16 U.S.C. section 661-666c and other applicable laws. G The Biological Resources Analysis report prepared by RC Biological Consulting, dated July 27,2004, for the proposed single-family residenceiOentified sJevelopment impacts to 0.13 acres of disturbed Non-Native Grassland, 0:29 acres of disturbed Coastal Sage Scrub (DCSS), and 0.69 acres of .- --, - ~ ' - Coastal.Sage Scrub (CSS) habitat. The applicant will mitigate 0 13 acres of Non-native Habitat at a ratio of 1'1 fora total of '0 13 acres, 0.29 acres of DCSS at a ratio.of 2:1 for a total of 0.58 acres, and 0.69 acres ofCSS at a ratio of 2:1 for a total of 1.38 acres of habitat on-site of equal or greater value Mitigation of impacted habitat will be resolved through the preservation of a Biological Conservation Easement on-site consisting of 2.09 acres of DCSS and CSS Recordation of a Biological Conservation Easement will ensure preservation of areas set aside for CSS habitat. 1 D5'O'IQ i Conservation Easement DId . Page 2 11084 H. Grantor intends"to convey to Grantee the righl'to preserve and protect the conservation values of the Properly ,in perpEltuity in accordance with CClVElnants, Terms, Conditions and Restrictions contained herein .inexchange for Grantee permitting Grantor's construction of a single-family residence on the subject parcel within the area shoWn on the Biological Resources Impact Map prepared by RC Biological Consulting: I. Grantee agrees by accepting this grant to honor the intentions of Grantor stated herein and to preserve and to protect in perpetuity the conservation values of the property in accordance with the terms of this Biological Conservation Easement for the benefit of this generation and the generations to come. COVENANTS, TERMS, CONDITIONS AND RESTRICTIONS In consideration of the above recitals and the mutual covenants, terms, conditions, and restrictions contained herein, and pursuant to California law, including Civil Code Section 815, et seq., Grantor hereby voluntarily deeds and' conveys to Grantee conservation easement in perpetuity over the Property of the nature and character and:to the extent hereinafter set forth ("Easement"). 1 Purpose. The purpose"of this Conservation Easement is to ensure the Property will be preserved in a natural condition in perpetuity and to prevent any use of the Property that will materially impair or interfere with the conservation values of the Property Grantor intends that this Conservation Easement will confine the use of the, Property to such activities, including without limitation, those involving the preservation and .enhancement of native species and their habitat in a manner consistent with the habitat conservation purposes of this Conservation Easement. 2. Riqhts of Grantee. To accomplish the purposes of this Conservation Easement, Grantor hereby grants and conveys the following rights to Grantee and the State of California Department of Fish and Game as a.third party beneficiary of this easement by this Conservation Easement Deed: (a) To preserve 'and protect in perpetuity the conservation values of the Property in accordance with this easement; (b) To enter upon. the property at reasonable times in order to monitor Grantor's compliance with, and to otherwise enforce the terms of, this Conservation Easement, including Grantor's obligation to manage the property consistent with Grantor's duties as set forth in section 4, and for scientific research and interpretive purposes by Grantee or its' designees; and CDFG and its designees. (c) To prevent any activity on or use of the Property that is inconsistent with the purposes of this Conservation Easement and to require the restoration of such areas or features of the Property that may be damaged bY,anyact, failure to act, or any uSe that is inconsistent with the purposes of this Conservation Easement; (d) All mineral, air and water rights necessary to protect and sustain the biological resources of the Property; and (e) To enforce by means, including injunctive relief, the terms and conditions of the Easement. 3. Prohibited Uses, Any activity on or use of the Property inconsistent with the habitat conservation purposes.ofthis Conservation Easement and not specifically reserved as a right of Grantor is prohibited. Without limiting the generality cif the foregoing, the following uses by Grantor, Grantor's agents, andlhird parties, are expressly prohibited unless specifically provided for through the Poway Subarea Habitat Conservation PlanlNCCP (a) Unseasonable watering, use of herbicides, rodenticides, or weed abatement activities, incompatible fire protection activities and any and all other uses which may adversely affect the purposes of this Conservation Easement; 2 ,c;onservation Easement Dtl ~10&5 Page 3 (b) Use of off-road vehicles; except vehicles used for property maintenance required by the City of Poway,and then only over existing roads. (c) Grazing or surface entry for exploration'or extraction of minerals; (d) Erection of any building, billboard, sign; (e) Excavating, dredging or removing of loam, gravel, soil, rock, sand or other material; (f) Otherwise altering the general topography of the Property, including building of roads or changing the grade of the Property; (g) Removing, destroying, or cutting of trees, shrubs, or other vegetation, except as required by law for (1) firebreaks, (2) maintenance of existing foot trails or roads, or (3) prevention or treatment of disease. (h) Planting of trees or other vegetation except by written permission from the City of Poway 4 Grantor's Duties. (3rantor shall undertake all reasonable actions to prevent the unlawful entry and trespass by persons '('hose activities may degrade or harm the conservation values of the Property In addition, Grantor shall undertake all necessary actions to protect Grantee's rights under Section 2 of this Conservation Easement. Grantor further covenants that maintenance of the Property, to wit: cleanup of all trash and debris, shall be the Grantor's responsibility 5. Reserved Riqhts.Grantor reserves to itself, and to its personal representatives, heirs, successors, and assigns, all rights accruing from its ownership of the Property, including the right to engage in or to permit or invite others to engage in all uses of the Property that are consistent with the purposes of this Conservation Easement. 6. Grantee's Remedies. If Grantee determines that Grantor is in violation of the terms of this Conservation Easement or that a violation is threatened, Grantee shall give written notice to Grantor of such violation and demand in writing corrective action sufficient to cure the violation. Grantee shall also notify the California Department ofFish and Game, If Grantor fails to cure the violation within thirty (30) days' after-receipt of said written notice and demand from Grantee, or ifthe cure reasonably requires more than thirty (30) days to compiete and Grantor fails to begin the cure within the thirty (30) day period or fails to continue diligently to complete the cure, Grantee may bring an action at laW or in equity in a court of competent jurisdiction to enforce the terms of this Conservation Easement, to ,recover any damages to which Grantee may be entitled for violation by Grantor of the terms of this Conservation Easement, to enjoin the violation, ex parte as necessary, by temporary or permanent injunction without the necessity of proving either actual damages or the inadequacy' of otherwise available legal remedies, or for other equitable relief, including, but not limited to, the restoration of the Property to the condition in which it existed prior to any such violation or injury Without limiting Grantor's liability therefore, Grantee may apply any damages' recovered to the cost of undertaking any corrective action on the Property If Grantee, in its sole discretion, determines that circumstances require immediate action to prevent or mitigate significant damage to the conservation valu!,s of the Property, Grantee may pursue its remedies unde'i'this paragraph without prior notice to Grantor or without waiting for the period provided for cure to expire. Grantee's ;rights under this paragraph;apply equally to actual or threatened violations of the terms ofthis Conservation Easement. Grantor and Grante('l"agree that Grantee's remedies for any violation of the terms ofthis Conservation Easement is the injunctive'relief described in this section, both prohibitive and mandatory, in addition to such other relief to whi~h Grantee may be entitled, including specific pertormance, of th(l terms of this Conservation Easement in each case, without the necessity of proving either actual damages or the inadequacy of otherwise available legal remedies. Grantee's remedies described in this section shall be cumulative ,and shall be in addition to all remedies now or hereafter existing at law or in equity, including but not limited to, the remedies set forth in Civil Code Section 815, et.seq., inclusive 3 ,Corisehtation Easement Dtt ~O86 Page 4 If at any time in the future Grantor or any subsequenttransferee uses or threatens to use such lands for purposes inconsistent with this Conservation"Easement, notwithstanding Civil Code Section815.~, the,California Attorney General or third'partyentitles organized for conservation purposes have standing as interested parties in any proceeding affecting this Conservation Easement as against Grantor The California Department of Fish and Game"(CDFG) as a third party beneficiary of this easement shall have the same rights as Grantee under this section to enforce the terms of the easement. 6.1 Costs of Enforcement. Any costs incurred by Grantee or CDFG in enforcing the terms of this Conservation Easement against .Grantor, including, but not limited to, costs of suit and attorneys' fees, and any costs of restoration necessitated by Grantor's violation or negligence under the terms of this Conservation Easement shall be borne by Grantor 6.2. Grantee's Discretion. Enforcement of the terms of this Conservation Easement by Grantee orCDFG shall be at the discretion of Grantee and CDFG, an,d any forbearance by Grantee or CDFG to exercise its rights under this Conservation Easement by Grantor shall not be deemed or construed to' be a waiver by Grantee of such term or of any subsequent breach of the same or any other term of this 'Conservation Easement or of any of the Grantee's rights under this Conservation Easement. No delay or omission by Grantee or CDFG in the exercise of any right or remedy upon any breach by Grantor shall impair such right or remedy or be construed as a waiver 6.3. Acts Bevond Grantor's Control. Nothing contained in this Conservation Easement by Grantee shall be at the discretion of Grantee and CDFG to bring any action against Grantor for any injury to change in the Property resulting from causes beyond Grantor's control, including, fire, flood"storm, and earth movement, or any prudent action taken by Grantor under emergency conditions to prevent, abate, or mitigate significant injury to the Property resulting, from such causes. 64 Department of Fish and Game Riqht of Enforcement. All rights and remedies conveyed to Grantee under this Conservation Easement Deed shall extend to and are enforceabie by the Department of Fish and Game or USFWS 7 Metal Fence. Stake Installation and Maintenance. In order to identify and demarcate the boundaries of the Biological Conservation Easement Deed area located within 2.09-acres at the eastern portion of the site on the 3.94-acre parcel at the east side of Creek Road, APN 320-020028, within ninety days, the Grantor shall install and maintain metal fence stakes ,(T-stakes painted white) six (6) feet in height [2' feet below grade and 4 feetexposed above grade] as follows: A stake shall be installed at the property line at the point of intersection with the easementboundar.y line and also installed at intervals of seventy-five (75) feet along the length of the easement boundary line. The purpose of this staking is to identify to the, lot owner the, boundaries of the conservation easement area, and to protect in perpetuity the conservation values and function of the Property The specific location of all required stakes shall also be plotted on the approved grading plan. 8. Access. This Conservation Easement Deed does not convey a general right of access to the public 9. Costs and Liabilities. Grantor retains all responsibilities and shall bear all costs and liabilities of any kind related to the ownership, operation, upkeep"andmaintenance of the Property 9 1 Taxes: Grantor shall pay before delinquency all, taxes, assessments, fees, and charges of whatever desc~iption levied on or assessed against the Property by competent authority (collectively "taxes"), including any taxes imposed upon, or incurred as a result of, this Conservation Easement, and shall'furnish Grantee and CDFG with satisfactory evidence of payment upon request. I 9.2. Hold Harmless. Grantor shall'hold harmless, indemnify, and defend Grantee and CDFG and its members, directors, officers, employees, agents, contractors, and their heirs, and representatives, successors'and assigns (collectively "Indemnified I:i'arties") from and against all liabilities, penalties, costs, losses, damages, expenses, causes of action, claims, demands, or judgments, including 4 ,cons'ervation Easement ott 1'08 tl Page 5 withQut limitation, reasonable attorneys' fees, arising from orin a~y, way connected with. (1) injury to or the death ,of any person, or physical damages to any property Jesl,!lting'from any act, omission, condition, or other .maltenelated to or oC,curring on or about the Property, regardless of cause; (2) the obligations specified in SectionsA,9; and 9 1 and'(3) the existence or administration of this Conservation Easement. 9.3, Condemnation. The purposes of the Conservation Easement are presumed to be the best and most necessary public use as defined at Code of Civil Procedure Section 1240.680 notWithstanding Code of Civil ProcedlJre'Sections 1240.690 and 1240700 10 Assiqnment. This Conservation Easement may not be transferred, assigned, or extinguished without the prior written approval of CDFG Grantee may assign its rights and obligations under this Conservation Easement only to an entity or organization authorized to acquire and hold conservation easements pursuant to Civil Code Section 815.3. Grantee shall require the assignee to record the assignment in the county where the Property is located. 11 Subsequent Transfers. Grantor agrees to incorporate the terms of this Conservation Easement in any deed or other legal instrument by which Grantor.divests itself of any interest in all or a portion of the Property, including, without limitation, a leasehold interest. Grantor further agrees to give written notice to Grantee or the CDFG of the intent to transfer any interest at least forty-five (45) days prior to the date of such transfer Grantee shall have the right to prevent subsequent transfers in which prospective subsequent claimants or transferees are not given notice ofthe covenants, terms, conditions and restrictions of this Conservation Easement. The failure of Grantor or Grantee to perform any act provided in this section shall not impai(thevalidity of this Conservation Easement or limi!its enforceability in any way Grantor shall nQt grant additional easements or other interests in the property without the prior written authorization of Grantee and CDFG. 12. Notices. All notices, demands, requests, consents, approvals, or communications from one party to another shall be p",rsonally delivered or sent by facsimile to the persons set forth below or shall be deemed given five (5) <Jays after deposit in the United States mall" certified and postage prepaid, return receipt requested and addressedas follows, or at such other address as any party may from time to time specify to the other parties in writing: To Grantor' Dennis G. Miller Lisa L. Chan-Miller 9471 Compass Pointe Drive South San Diego, CA 92126 To Grantee: City of Poway POBox 789 Poway CA 92074 With a copy to: Department of Fish and Game Natural Community Conservation Planning 4949 Viewridge Avenue San Diego, CA 92123 The parties agree to accept facsimile signed documents and agree to rely upon such documents as if they bore original signatures. Each party agrees ',to provide to the other parties, within seventy-two (72) hours afte(transmission of a facsimile, documents that bear the original signatures. 13. Amendment. This Conservation Easement may be amended by Grantor and Grantee only by mutual written agreement approved in writing by CDFG. Any such amendment shall be consistent with the purposes ofthis Conservation Easement and, shall not affect its perpetual duration. Any such amendment shall be recorded in the official records of San Diego County, State of California. 14 Recordation. Grantor shall promptly' record this instrument in the official records of San Diego County, California and immediately notify the Grantee and CDFG through the mailing of a confirmed copy of the recorded easement. 5 Conservation Easement Did 1 ~ 88 Page 6 15. General Provisions, (a)' Controllinq Law The interpr",tati,on and performance of this Conservation Easement shall be governed by the laws of the State of California. (b) Liberal Construction. Any general rule of construction to the contrary notwithstanding, this Conservation Easement shall be liberally construed in favor of the deed to effect the purposes of this Conservation Easement and the policy and purpose of Civil Code Section 815, et seq. If any. provision in this instrument is'found to be ambiguous, an ,interpretation consistent with the purposes of this Conservation Easement that would render the provision valid shall be favored over any interpretation that would render it invalid, (c) Severability If a court of competent jurisdiction voids or invalidates on its face any provision of, this Conservation Easement Deed, such action shall not affect the remainder of this Conservation Easement Deed. If a court ,of competent jurisdiction voids or invalidates the application of any provision of this Conservation Easement Deed to a person or circumstance, such action shall not affect the application of the provisionJo other persons Dr circumstances. (d) Entire Aqreement. This instrument sets forth the entire agreement of the parties with respect to the Conservation Easement and supersedes all prior discussions, negotiations, understand.ings, or agreements relating to the Conservation Easement, all of which are merged herein No alteration or variation of this instrument shall be valid or binding unless contained in an amendment in accordElnce with Section 13 (e) No Forfeiture. Nothing contained herein will result in a forfeiture or reversion of Grantor's title in any respect. (f) Successors. The covenants, terms, conditions, and restrictions of this Conservation Easement Deed shall be binding upon, and inure to the benefit of; the parties hereto and their respective personal representatives, heirs, successors, and assigns and shall continue as a servitude running in perpetuity with the Property These covenants hereunder benefiting Grantee shall also benefit CDFG. (g) Termination of Riqhts and Obliqations. A party's rights and obligations under this Conservation Easement shall terminate only upon transfer of the party's interest in the Conservation Easement or Property, except that liability for acts or omissions occurring prior to transfer shall survive transfer (h) Captions. The captions in this instrument have been inserted solely for convenience of reference and are not a part of this instrument and shall have no effect upon its construction or interpretation. (i) Counterparts. The parties may execute this instrument in two or more counterparts, which shall, in ,the ,aggregate, be signed by, Grantor and Grantee; each counterpart shall be deemed an original instrument as against any party who has signed it. In the event of any disparity between the counterparts produced, the recorded counterpart shall be controlling. U) Modification. This Easement is not subject to modification or amendment except in writing and:sig'ned by Grantor, Grantee and CDFG or their permitted successors or assigns. (k) Exhibits. All Exhibits referred to in this Easement are attached and incorporated herein by reference. (I) Appropriations. The duty of the City of Poway and CDFG to carry out their respective obligations under this Easement shall be subject to the availability of appropriate funds. (m) Effective Date. This Easement shall be effective upon recording with the San Diego County Recorder's Office. 6 Conservation Easement ot ft089 Page 7 IN WITNESS THEREOF, Grantor and Grantee have entered into this Conservation Easement the day and year first above written. GRANTOR: Dennis G: and Lisa L. Chan-Miller, Property Owners (tf By' ~----------- By' Dennis G Miller Lisa L. Chan-Miller Approved as to Form: Office of the City Attorney Tamara Smith, City Attorney BY~ Tamara Smith, City ttorney M:\planning\peggy\MDRA2003\MDRA03-61 Miller\Miller Conservation Easement Deed.doc 7 . . 11090 CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT State of California } ! 55. County of _ 51# /J J F (, 0 [ On fiR,I2~I/jr!.</ /7 200J ;;:re me, t1!y!.t /5, fIp/'t/~ /v/;r;&'y ,~jZ / L I I personally appear:~" / /1//1.//5 6, ,it/jUt/? 4;X2i"];~""'XJ't7;;^:"b~1 ILL- tJ:( Narrie(s)?fSigner(sl o personally known to me ~oved to me on the basis of satisfactory I evidence j ~ _ _ _ _ _ _ _ _ _ _ _ _ to be the person(s) whose name(s) ,~are I '. PHYllIS S1iINN subscribed to the within instrument and 1<@,'-"com..missloniJ4,50304 J acknowledged to me that '~/~/they executed. 2 ,-" . Notary Pubtic . CaBtooila f the same in t\is/lle</their authorized j ,. San Diego County - capacity(ies), and that by his/Mr/their _ _ _ ~comm,.Exp/n>sNoV.9,2007f signature(s) on the instrument the person(s), or I' - - - - - - - - the enlity upon behalf of which the person(s) I acted, executed the instrument. I' I I r OpnONAL I Though the information below IS not requirea by law, it may prove valuable to persons relymg on the document and could prevent fraudulent removal and reattachment of this form to another document. r Description of Attached Document : I Title or Type of Document: r I Document Date: Number of Pages: I I Signer(s) Other Than Named Above: I I Capacity(ies).Claimed by Signer I I' f Signer's Name: I . D Individual Top of thumb her8 o Corporate Officer - Title(s), o Partner - 0 Limited 0 General o Attorney-In-Fact o Trustee ,) o Guardian or Conservator [ 0 Other' I I Signer Is Representing: @1999 National Notary Il,sSociahon' 9350 De SotciAve., P.O. Bo~ 2402 . Chatsworth, CA 91313-2402' wwwnalionalnotary.org Proo. No. 5907 Reorder: Call Toll-Free 1 800-876-6827 Conservation Easement D_ . Page 8 11091 CERTIFICATE OF ACCEPTANCE dated ~iS ,is joCertify th'!.t the interest in real property conveyed by the Conservation Easement by, ~bcullry .I '7, .9cOS.. to the City of Poway, Grantee, and to the California Department' of'Fish and Game, as a third party beneficia~y, a governmental agency (under Government Code'Section 27281), is hereby accepted by the undersigned officer on behalf of the City of Poway, pursuant to,authority conferred' by Resolution No. 34 of the City of Poway on January 20, 1981 GRANTEE. City of Poway B~UJt))hdi Sherrie Worrell Title: Deputy Citv Clerk Authorized Representative Date: JehAw'/ltf, c-J~..:Jon5' 8 , . , . . 11092 EXHIBIT 'A' LEGAL DESCRIPTION A PORTION OF THAT LAND ACCORDING TO DOCUMENT NO 84-277476 FILED COUNTY JULY 23, 1984, AND RECORD OF SURVEY MAP NO 11474 FILED FEBRUARY 4,1988 AS FILE No 88-05447, BOTH'ON FILES OF THE OF OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, DESCRIBED AS FOLLOWS BEGINNING AT THE NORTHEAST CORNER OF SAID LAND; THENCE ALONG THE EAST LINE OF SAID LAND, SOUTH 00041 '44" EAST, 367.92 FEET (SOUTH 00031 '02" EAST, 370,00FEETPER DEED) TO THE SOUTHEAST CORNER OF SAID LAND; THENCE ALONG THE SOUTII LINE THEREOF, SOUTH 89025'50" WEST (SOUTH 89041 '34" WEST PER DEED), 248.00 FEET, THENCE LEAVING SAID SOUTH LINE, NORTH 0004['44" WEST, 367,92,FEET TO A POINT IN THE NORTH LINE SAID lAND; THENCE ALONG SAID NORTH LINE, NORTH 89025'50" EAST (NORTH 89041 '34" EAST PER DEED), 248,00 FEET TO THE POINT OF BEGINNING, TOTAL AREA IS 2,09 ACRES, MORE OR LESS. 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