Conservation Easement Deed 2005-0125624
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~~. RECpRDING REQUEST_BY, [eC # 200~)-(n 25624
,~' CITY'0F P0WAY i 111111111111111111111111111111111111111111111111111111111111111111
~WHEN RECORDED MAILTO' FEB 15, 2005 941 AM
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POWAY CA92074-0789 ~'.::.I~~E :. 11
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APN 277-220-22 2005-0125624
Project No" MORA 04-74
CONSERYATION EASEMENT DEED
NO DOCUMENTARY TRANSFER TAX DUE ()
THIS CONSERVATION EASEMENT DEED is made:,this ..:2<: day of ',rTllfl,tFR. ,2004, by
Christopher J, Coseo, ("Grantqr"), ,in favor of City of Poway ("Grantee"), acting by and through its
Development Services Department, with reference to the following'fads,
RECITALS
A, Grantor is the sole ilwner in fee simple of certain reai property in the City of Poway;
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County of San Diego, State, of Caljf<;>rnia, more particularly described in Exhibit "A" and Exhibit "B"
attached hereto and incorporated by this reference (the "Property"),
B, The Property possesses:wildlife and habitat values (collectively, "conservatlonlialues") 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 prov'ldes high quality Coastal Sage Scrub Coastal Sage Scrub is the
habitat of the California Gnatcatch-er, 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, preservation of
.land in its natural, scenic, agricultu'ral, '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), h<ls
jurisdiction, pursuant to the' Fish and Game Code Section 1802" ov~r 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 'F:ish and Wildlife Services (USFWS) has jurisdiction over the
conservation, protection, restoration, enhancement and management of fish, wildlife and native plants
and the habitats on which they depend under the Endangereo Species Act, 16 U,S C section 1531 ef
seq (ESA), the Fish and Wildlife Coordinaiion Act, 16 U,SC secti6n661-666c and other applicable laws,
G The Biological Rewurces Analysis prepared by P&D Environmental, dated. January
2000, for .subdivision TTM 98-02', "Heritage" Estates Biological Technical Report", identified impacts to
".-- -- .. - ... -'; . .. ---.
Coastal Sage 'Scrub (CSS) habitat. Mitigation of impacted habitat was resolved as part of the Final
Environmeritallmpact'Report, Sch, No, 98091083, through the preservation of open space easements on
each parcelthroughout.the subdivision, Open space areas were identified on the map no, 14388, filed in
the office of the, County Recorder of San Diego County, California, on May' 8, 2002, file number 2002-
0391382 for'imp,acts to CSS Recordation'of Biological Conservation Easements will ensure preserVation
of areas setaside for Coastal'SageScrub habitat.
H, Grantor intends to convey to Grantee, the right t6 preserve and protect the conservation
values of the Property in perpetuity' in accordance with 'Covenants, Terms, Conditions and Restrictions
()5 'D~q
Conservation Easement ad . 6432
Page 2
contained herein in exchange for Grantee permitting Grantor's construction ,of a single-family residence
within' Heritage II'Estates,
I Grantee"agreesbyacceptingthis grant to honor the i,nt",ntions of Grantor stated herein
and'to preserve and to protect in perpetuity the conservation values of the property in accordance with
the terms'of this1Conservation Easemimt 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 setforth ("Easement"),
1 Purpose, The purpose of this Conservation Easementis 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 orinteriere 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 Easenient.
2, Riqhts of Grantee, To accomplish the purposes:of:this Conservation Easement, Grantor
hereby grants and conveys the fall9win9 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 GrantoC: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 ofthe
Property that may be damaged by any:act, 'failure to act, or any use that is inconsistent with the purposes
of this Conservation Easement;
(d) All mineral, air and water rights necessary to protect and 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, 01, the, Property inconsistent with the habitat
conservation pLJ,FRoses .of Uiis Conservation EasemenLand not sp-ecifically reserved as a right of Grantor
is prohibited, Withoutlimiting the generality of the foregoing" th~e following uses by Grantor, Grantor's
agents, and third [larties, are expressly prohibited unless speCifically provided for through the poway
Subarea Habitat CODservation Plan/NCCP
(,,) L!nseasonable watering, use of herbicides, rodenticides, or weed abatement
activities, inc;qmpatible'fire ,protection activities and any and;all: other uses which may adversely affect the
purposes ofttlis Conservati.onEasement;
(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;
Conservation Easemenf .d . 6433
Page 3
(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 ofthe Property;
(g) RerTlOving, 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
treatmenf6fdisease,
(h) Planting of trees or other vegetation excepfby written permission from the City of
Poway
4 ,Grantor's Duties, Gmnt<;>r shall undertake all reasonable actions to prevent the unlawful
entry and trespass by persons whose activities may degrade or harm the conservation valUes of the
Property In addition, Grantor ,shall un~ertake 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; clean upof,all trash and debris, shal(be the Grantor's responsibility
5 Reserved Riqhts, Grartor reserves to itself, and to its personal representatives, heirs,
successors, and assigns, all rights acc:ruing 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 GrantorJa.lls to cure the violation within thirty
(30) days after receipt of said written notice and demand fr9m'Grantee, or if the cure reasonably requires
more than thirty (30) days to complete 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 Gon!lerv_ation 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'values of the Property, Grantee may pursue
its remediesund'er 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 of this'Conservation Easement. Grantor and Grantee'agree that Grantee's remedies for any
violation. of'the ,terms of this Conservation Easement is the injunctive relief described,in this section, both
prohibitive and mandatory, In addition to such other relief to which Grantee may be entitled, including
specific performance of'the'terms of this Conservation EasemenUneach case, without the necessity of
proving either <lctuald,arnagesor the inadequacy of otherwise available legal remedies, Grantee's
remedies des,cribed in this section shall' be cumulative and shall be in addition to all remedies now or
hereafter existing at laVi or in equity, including but not limited to, the remedies set forth in Givil Code
Section 815, et seq, , inclusive,
If at any time in the future Grantor or any subsequent transferee uses or threatens to use
such lands for purposes inconsistent with this Conservation Easement, notwithstanding Civil Code
Section 815,7, the California Attorney General or third~party'entitles organized for conservation purposes
, Conservation Easement .d . 6434
Page 4 have standing as interested parties in any'proceeding affecting this Conservation Easement as against
Grantor
The California Departme[lt of Fish and Game (CDFG),as8,th,ird party beneficiary of this
easement'shall have thEFsamerights:as Grantee under this section to enforce the terms of the easement.
6,1 CostsoLEnforcement. Any costs incurred by Grantee or CDFG in enforcing the
terms of this Conservation Eas",ment against Grantor, including; but not I,imited to, costs of suit and
attorneys: fees, and any.,costs ofrestqration necessitated by Grantor's violation or negligence under'the
terms'ofthis ConserVation Easement shall be borne by Grantor
6,2, Grantee's Discretion, Enforcement of the, terms of this Conservation Easement
by'Grantee or CDFG shall be at,the discretion, of Grantee and CDFG, and any forbearance by Grantee or
CDFGto exercise its rights under this Conservation Easement by Grantor shall not be deemed or
construed to bea waiver by Grantee of such term or of any subsequent breach of the same or any other
term of this Conservation Easement or 6f'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 asa waiver
6,3 Acts BevonaGrantor'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, ormitigatesignificant,injury to the Property resultingJrom such causes,
6.4 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 enforceable 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 ,Conservation Easernentpeed area on Lot 22, 181,76 Heritage Drive, APN 277-220-22,
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 feet exposed above grade] as follows: A stake 'shall be
installed at the property line at the-point of intersection with the easement boundary line and also installed
at intervals of sevElnty'five (75) feet along the length of the easement tioundary 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 ~n.d function of the Property The specific location of all required
stakes shall also be plotted on Exhibit'B'(easement plat) attached hereto,
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, and, maintenance of the Property
9 1 Taxes, Grantor shall pay before delinquency all taxes, assessments, fees, and
charges of whatever description 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. andshail'furnish,Grantee and CDFG with satisfactory evidence of payment upon request.
9,2, Hold Harmless, Grantor shall hold harmless, indemnify, and defend Grantee and
CDF.G and its members, directors,offiters, employees, agents, contractors, and their heirs, and
representatives\ successors and assigns (collectively "Indemnified Parties") from and against all liabilities,
penaltie~,,'costs)osses, damages, expenses, causes of action, claims, demands, or judgments, including
without Iimit"tion, reasonable attorneys' fees, arising from or in anyway connected with: (1) injury to or
the,death of anY person"or physical damages to any property-resulting from any act, omission, condition,
or other matter related to or occurring on or about the Property, regardless of cause; (2) the obligations
specified in Sections 4, 9, and 9 1, and (3)'the existence or administration of this Conservation Easement.
Conservation Easement ad . 6435
Page 5
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 C6deJof'Civ'il Procedure Sections 1240,690 and 1240700 -
'10 Assiqnmenf. This Conservation Easement may not be transferred, assigned, or
extinguished without the piior written approval of CDFG, Grantee may,:assign its rights and obligations
unde~ ,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 Grantordivests itself of any interest in all or a
portion 'of the Property, including, with'6uUimitation, a leasehold .interest. Grantor further <lgrees 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 righUo prevent.subsequent transfers in which
prospective subsequent claimants or, transferees are not given notice of the covenants, terms, conditions
and restrictions of this Conservation Easement. The failure of Grantor or Grantee to perform any act
provided in this section shall not impai(the validity of this ConserVation, Easement or limit its enforceability
in any way Grantor shallnot,grant, additional easements orotner interests in the property without the
prior written authorization of Grantee and CDFG,
12, Notices, All notices;defTlands, requests, consents, approvals, or communications from
one party to another shall be personally delivered or sent by facsimile to the persons set forth below or
shall be deemed'given five (5) days after deposit in the United States mail, certified and postage prepaid,
return receipt requested and address"d'as follows, or at such other address as any party may from time
to time specify to the other parties in writing:
To Grantor' Christopher J, Coseo
CSJ Properties
15023 Huntington Gate
Poway, CA 92064
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 facsimil.e signed documents and agree to rely upon such
documents asiftheybore'o(iginal signatures, Each party <lgrees ,to provide to the'other parties, within
seventy-two (72) hoursaf(er 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 wiitten agreement ,approved in writing bY CDFG,. Any such amendment shall be
consistent with the purposes of this Conservation Easement and, shall not affect its perpetual duration,
Any such'amendment shall be recorded'in the official records of San Diego County, State of California,
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.
"
Conservation ,Easement DId . 6436
Page 6
15, General Provisions,
_ (a) Controllinq Law The il]terpretation and performance of this Conservation
Easementshall,be,governed by the' laws of the State of California,
(b) Liberal Construction, Any general rule of construction to the contrary
notwithstanding, this:.Conser'VationCEas-ement 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, ef 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) Severabilitv If a court of competent jurisdicti9n voids or invalidates on its face
any provision of this Conservation Easement Deed, such acti<;Jn sh?1I not affect the remainder of this
Conservation Easement Deed, If a court of competent jurisdiction voids or invalidates the application of
any provision of this Conservation Easement Deed to a person or circumstance, such action shall not
affect the application of the provision to other persons or circumstances,
(d) Entire Adiee'ment.This instrument sets forth the entire agreement of the parties
with respect to the Conservation Easement and supersedes all prior discussions, negotiations,
understandings, or agreements relating.to the Conservation. Easement, all of which are merged herein,
No alteration or variation of this instrument shall be valid or binding unless contained in an amendment in
accordance with Section 13,
(e) No Forfeiture, Nothing contained herein will result in a forfeiture or reversion of
Grantor's title in any respect.
(f) Successors, The covenants,terms, conditions, and restrictions of this
Conservation Easement Deed shall be binding upon, and inure to the benefit of, the parties hereto and
their respective personal repres13nt?tives, heirs, successors, and a'ssigns and shall continue as a
servitude r.unning in perpetuity with the Property These covenants hereunder benefiting Grantee shall
also benefit CDFG
(g) Termination of Riqhts and Obliqations, A partis 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 exe-cute this instrument in two or more
counterparts, which'shall, in the aggregate, be signed by Grantorand 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 Easementis not subject to modification or amendment except
in writing and signed 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) ApprooFlations 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,
Cons~rvation Easement old . 6437
Page 7
IN .wIINE~S THEREOF, Grantor and Grantee have,entered into this Conservation Easement the
day and year first above written,
GRANTOR:
Christopher J Coseo, Property Owners
By: rQjJ~~
Christopher J Coseo
Approved as to Form:
Office of the City Attorney
Tamara Smith, City Attorney
BY~~
, Tamara Smith, City Attorney
M:\planning\peggy\mdra2004\mdra04-7 4. CSJ\Conservation Easement Deed .doc
. · 6438
ALL PURPOSE ACKNOWLEDGMENT
State of C. ilifcl" n l CL
County of ~ o-.n D it <jO
On NO\1embu 2J LO{j...) before me, A-11(SDn Jftrot!JNow-f/o Pub/t'G.I
Date Name and:Title' of Officer (e.g., "Jane Doe: tary Public".)
personally appeared th n :5 to ph U" J &se..D
I Name(s) of Signer(s)
~ersonally known to me - OR .0,13(8':99 tg m9 SR tl=l9 gasis of 3stisfaet61)CvidsA88 to be the
person(1) whose name"'@8fe subscribed to the within
instrument and acknowledged to me that@tReltRQ't
executed the same'i~R8r.'tReir authorized
capacity~ ,md that;oY@RoFlllgei,.signature(.Il1 on
_ _ _ _ _ _ _ _ _ ~ _ the instrument the person(j); or the entity upon behalf of
~AWSON STERm .. ~ J. which the person(ll acted, executed the instrument.
;~_. CommlsalOn 1/150&794
i -,.; Notary Public. Ca.' IIlomIa ~ WITNESS my hand and official seal.
~ San DIego County ~
MYComm,;ExplleSAug5,2008 Af);. '. twulJ
----------- &n/1
WIt
- Signatlire of Notary Public
DOCUMENTTYPE. CD n s -if /l0...i7 D Y} Ea s un et7f Deed
DOCUMENT DATE. to / 1-5/0 LJ
OTHER SIGNERS
Conservation Easement.d .
Page 8 6439
CERTIFICATE OF ACCEPTANCE
This, is to Certify that the intere~t in r!l~al property conveyed by'the Conservation Easement by
Christopher J, Coseo; dated October 25, 2004, to the City of Poway, Grantee, and to the California
Department of Fish and Game: as a third party beneficiary, 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 Po way
By' X~ ~
Title: L. Diane Shea, Citv Clerk
Authorized Representative
Date: February 5, 2005
. .
6440
EXHIBIT A
BIOLOGICAL CONSERVATION EASEMENT
THAT CERTAIN AREA SHOWN AS OPEN SPACE EASEMENT ON
LOT 22 OF CITY OF POWAY TRACT NO. 98"02 HERITAGE RANCH
ESTATES, ACCORDING TO MAP NO. 14388, 'FILED IN THE OFFICE
OF THE COUNTY RECORDER OF SAN DIEGO COUNTY,
CALIFORNIA ON MAY 28, 2002, FILE NUMBER 2002-0391382
OF OFFICIAL RECORDS.
. EXHIBIT B .
" ,
Lot 22 6441
Individual Lot Declaration
The Hentage Estates
Private Drainage
Ease~ent
=
=
- -
- -
10Q' Fuel Modification
Zone I Setback -
Owner MaintaIned
'"
y" -
, ;;f/
'\ --
.,/
Legend North
Proper!Y Un, ----- Slope ucation toP> ~
fjf.'" Spa" --- toe
arement Line Drainage Swo/e/Culverl
Storm Drain ----=::-::ECl = = 0 100 200
Setl/erUne -. --
Water Line -w'-- Building Envelope I I SCall;11 fiet
Sewer Line,Connection @) Common Area ~ SeeCroding Pions fOr pregroded topoJ!.f'ophy
Water Line Connection @ Miiintenance
Easement HCEA
Utz:Jity Connection: @ 'Mdintained
Telephone, Gas, SmeiUghl ?
Electric, TV Cables
LJINumber,~. Fire. HYdrant ~
LJISi'(f 22,
~~13
Finisbed Pod ^""
Eletkllion ~