Conservation Easement Deed 2005-0125623
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i R~COROING REOUESTED BY, L-.J &:_ _ ..... ___....,.
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I CITY OFPOWAY FEB 15, 2005 9'41 AM
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fJ CITYCL:ERI< i:lf:f.liDr::", ,I =,~,'1Inl. I uur-n I F:EU=If=:[IER
CITY OF POWAY ~4~n FEE'.,. C1,nu
P 0 BOX 789 1-IC. il."
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POW A YCA 92074-0789
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APN 277-220-35 2005-0125623
Project No MDRA 04-84
CONSE~VATION EASEMENT DEED
NO DOCUMENTARY TRANSFER TAX DUE . oS:
THIS CONSERVATION EASEMENT DEED is made this .::;- day of ,1A-!JU/t(l.i/ 200f,bY
Christopher J Coseo and Brenda ,M.Coseo, Trustees of<the.Coseo Family Trust ("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 incorporatedby.this reference (the "Property"')'
B. The Property possesses wildlife 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 ofthis Ilro'perty.therefore will preserve habitat of a protected species.
D The City of pow<i)i isauthorized.to hold conservation'easements for the preseiVation of
land in its natural, scenic, agricultural, liistorical,Jorested, or open space condition. The City'ofPoway 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, a'nd
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 and 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 prep,'tred by P&D Environmental dated January 2000
for'subdivision TTM 98;02, "Heritage II Estates Biological Technical Report", identified impa.cts to Coastal
Sage Scrub'(CSS) habitat. Mitigation of impacted habitat was resolved as part of the Final Environmental
Impact R",port;"E)ch. No. 98091083, through the preservat~on of 9IJen space easements on each parcel
throughout thesubdivisi9n. 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
impacts to CSS. Recordation of Biological Conservation Easements will ensure preservation of areas set
aside for coastal sage scrub habitat.
05b2])
CtJn,ser:vation EaSelT]enr.d . 6421
Page:2
H, Grantor intenqs to convey;to,:Grantee the right to preserve and protect the conservation
values of "the, Prop~eriy, iri perpetuity'in accordance with Covenants, Terms, Conditions and Restrictions
'cqntainEld herein i[1 exchange for Grantee. permitting Grantor's construction of a singhHamily residence
within 'Heriiage;l I EstatEl,s.
I. Grantee agrees. by accElpting .this grant to :honor the intentions of Grantor stated herein
and:topreserve and'io protect in' perpetuity the' conservation values of'the property in accordance with the
terms,of this'Conservation Easement'for the benefit of this generation'.andthe 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 'conyeys 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 'p~rpo~e 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 con.s.erva\ion 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 ina manner consistent withlhe
habitat conservation purposes.of Hiis Conservation Easement.
2. Riqhts of Grantee. "j;o,accomplish the purposes ofthis 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 ofthis 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 othElrwise 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 interpreliv.epurposes 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 thai maybe damaged by any act, failure to act, or any use that is inconsistent with the purposes
ofthis 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 uSEl of ,the Property inconsistent with the habitat
conser\(ation purposes ofthis Conservatio[1 Easement and not ~pecifically reserved as a :right of-Grantor
is prohibited. ,!\,ithout limiting the generality of the foregoing, ,the following uses by Grantor, Grantor's
agents; anq third parties; are!,xpressly prohibited unless sflecifically provided for through the Poway
Subarea Habitat Conservation Plan/NCCP
(a) Unseasonable wa,tering, use of herpicides, rodenticides, or weed abatement
activities, incomPl)tible fire protection activities and any and 'all other uses which may adversely affect the
purposes' of this' Conservation Easement;
(b) Use of off-road vehicles; except vehiCles used for property maintenance'required
by the (;ity ot'Poway, and then ,only over existing roads.
CO'lservation Easement a . 6422
Page 3
(c) Grazing:or surface entry for exploration or extraction of minerals;
(d) Erection Oi,anybuilding, 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'c:hanging the grade of the Property;
(9) . Removing, destroying, or cutting. of tree~, 'shrubs, or other vegetation, except as
required by law for" (1) firebreaks; (2)f)1aintenance of existing foot trails or roads, or (3) prevention or
treatment of.disease.
(h) Planting'oftrees or other vegetation except by written permission from the City of
Poway
4 Grantor's Duties. Grantor shall undertake all reas.qnable actions to prevent the unlawful
entry and trespass ,by persons whOse activities may degrade or harm .lhe conservation values of the
Property In additiOn, Grantbr 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: clean up 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 G~antor of
such violation and demand in writing corrective action sufficient'to:cure the violation. Grantee'shall also
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notify the California Department o(F;ish llnd Game. If Grantor fails tocure:the violation wi.lhin thirty (30)
-'" .. - . ". " .
days after receipt of said written notice and demand from Grantee;,or'if the cu,[,e reasonably. requires'mor,e
than thirty (30) days:to complete'and Grantor fails to begin the cure withiwthe thirty (30) day period or fails
to continue diiigently to complete..lhe:;cure, Grantee may bring an action .at law or inequity 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 otlhis Conservaiion Easement, to
enjoin the violation, ex parte as necessary, by temporary or permanent injunction without the necessity' of
proving either actual damages or ~b~ inadequacy ofotherwfs"" av~ilable legal remedies, or for other
equitable relief, including, but. not.liniited '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
I'f G[,,!ntee; in its sole,discretion, determines,thal'.circumstances require immediate action
to prevent or mitigate significant damage to the conservation values,of the Property, Grantee may pursue
its remedies under'this paragraphwithout'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 oftheterms,of this Conservation Easementis.the injurfc:tive relief described in this section, both
prohibitive and mandatory, in addition to such other relief to which Grantee may be entitled, including
specific performance of'the terms' of this',Conservation Easement in each case, without the necessity of
proving either. actual da-mages or .the inadequacy of otherwise available legal remedies'. Grantee's
remedies describea. 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.
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
Con.servation Easement. . 642i3
Page 4
,815:7, the California Altorney General or third-party entitles organized. for conservation purposes have
standing'as interestedpa'rties in,'any'!)roceedingaffecting this ConseiVation Easement as against Grantor
The California Department of Fish and Game (CDFG) as'athirdparty 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 unaer the
terms' of this Conservation EasementshalLbe borne by Grantor
6.2. Grantee's Discretion. Enforcement ofthe :termsof this Conservation Easement
by Grantee or CDFG shall be at the discretion of Grantee and CDFG,.and'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 an'Y right or remedy upon any breach by
Grantor shall impair such riglit 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 laken .by' Grantor; Under emergency conditions to
prevent, abate, or mitigate significant injury to the Property resultingfrom'such,causes.
6.4 Departmentof F:ish and Game Rioht of Enforcement. All rights and remedies
conveyed to Grantee under this,Cons-eiVation. Easement Deed shall extena to and are enforceable by'the
Department of Fish and GameorUSFWS
7 Metal Fence Stake Installation and Maintenance,. Ih order to identify and demarcate the
boundarieS of the Conservation 'Easement Deed area (property) 18790 Heritage Drive, APN 277-220-35,
within ninety days, the Grantorsh'all 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
ihstalled at.lhe property line at the point of .intersection with the easement.boundary line and also installed
aHntervals of seventy-five (75)'feet along tlie length. of theeasemenfboundary 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 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 shaU 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 in'curred as a result of, this Conservation
Easement, and shall furnish Granteeahd CDFGwith s'atisfactory evidence, of payment 'Upon request.
.9.2. Hold'Harmless. Grantor shall hold harmless, indemnify, and defend Grantee and
CDFG .and its members: directors, officers, employees, agents, contractors, and their heir's, and
representatives, successors ahd assigns (collectively "Indemnified Parties") from, and against all liabilities,
penalties, costs"losses;damages, expenses, causes of action, claims,. demands, or judgments, including
without limitation" 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, cohdition,
or other matter' related to or 'occurring on or about the Property,. regardless of cause; (2) the obligations
specified.in Sections 4, 9, and9 1 ,and (3) the existence or administration of this Conservation Easement.
Conservation Easenient a . 6424
Page 5
'9:3. Condemnation. The purposes of the Conservation, Easement are presumed to
be the .best. and most .riecessaiy public use as defined at Code of Civil Procedure Section 1240.680
notwithstanding,Codeof Civil Procedure SeCtions 1240.690 and 1240.700
10 ,Assiqnment. This Conservation Easement may not be transferred, assigned, or
extinguished ,withouHhe prior written approval of CDFG. Grantee..may assign its rights' and obligations
under this Conservation Easement6nly 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
recordJheassig'nment inthe county wherethe: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 orthe Property, including, without Iimiiation, a leasehold interest. Grantor further ,agrees to give
written notice to Grantee or the CDFG of tlie 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, of the covenants, terms, conditions
and restrictions of this Conservation Easement. The failure of'Grantor or Grantee to perform any act
provided in this section shall not impair the validity of this Conservation Easement or limit its enforceability
in any way Grantor shall:.notgrant:additional easements or other interests In the property without the prior
written authorization of Grantee andCDFG.
12. Notices. All notices, demands, 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 (5Y,days after deposit in the United States mail, certified and postage prepaid,
return receipt req'u'estedand addressed 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. & Brenda M. Coseo
3146 Quiet Hills Drive
Escondido CA 92029
To Grantee: City of Poway
P'O Box 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 agre~ to. accept facsimile .signed documents and agree to rely upon such
documents as if !~ey bore original signatures. Each party agrees to provide to the other parties, within
seventy'two (72) hours aftertransmission of a facsimile, documents that,bear the original signatures.
13 Amendment. This Conservation Easement may .beamended by Grantor and Grantee
only by mutual written agreement appr6ved inwriting:by CDFG. Any such amendment shall be consistent
with the pu'rposes 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.
15. General Provisions.
(a) Controllinq Law The interpretation and performance of this Conservation
Easementshall be governed by the laws of the State of California.
Conservation EasE!ment A . . .
6425
Page.6
(b) Liberal Co'nstruction. . Any general .rule: of construction to the contrary
notwithstanding,ttiis Conservation Easement shall be liberally construeo in favor of the deed to effect the
pwposes of this Conservation Easement'and the policy and purpose of Civil.Code Section 815, et seq If
any provision in' this instrumenlis'foundto be'ambiguous, an interpretation consistent with the purposes of
thi,s Conservation 'Easement that would render the provision valid shall befavored over. any interpretation
that'would render it invalid.
(c) Severabilitv If., a court of competent jurisdiction. voids or invalidates on its face
afly.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
afly'provision of this Conservation Eas",ment Deed to a person or circumstance, such action shall not
affect the application of the provision to' other persons or circumstances.
(d) Entire Aqreement This instrument sets'forth the entire agreement oflhe'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 res lilt in a forfeiture or reversion of
Grantor's title in any respect.
(f) Successors. The covenants, terms, conditions, and restrictions of this
Conserevation Easement Deed shall be binding upon, and inure' to the ben'efit 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 ofHiqhts and Obliqations. A party's rights and obligations,under this
Conservation Easement shall terminate .only upon. transfer of the 'pa'rty'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) Counteroarts, The parties may execute this instrument in two or more
counterparts, which shall, in .the ,aggregate, be signed by Grantor, arid Grantee; each counterpart shall be
deemed an original instrument a's 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 subjectto.modification or amendment except
in writing andsigned..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) Amjropriations. The duty of the City of Poway and CDFG to carry out their
respective obligations under this Easement shall be subject to-the,availab'ility of appropriate funds.
(ni) Effective Date. This Easement shall be effective upon recording with the San
Diego County Recorder's Office,
Conservation Easement a . 6426
Page 7 :INvYI'rNESS THE~EGF,Grantor and Grantee have entered into this Conservation Easement the
day and year Jirst above written.
GRAN'rOR:
Christopher J. Coseo and Br"nda M, Coseo, Trustees of the Coseo Family Trust, Property
ow~ By' ~ /tt ~
By' . ., / Brenda M. Coseo
Christopher J Coseo .
Approved as to F'orm:
Office of the City Attorr]ey
Tamara Smith, City Attorney
BY~~
Tam a Smith, City Attorney
. . '.
6427
ALL PURPOSE ACKNOWLEDGMENT
State of ~ u.L fa V \\\()...
County of SQx\ Di t:~() - \l~on ~tf-.y-ej\: \l1n.n; ?uloll'c..;
On JClf\lH)';( j 7 I '2 0 5 before me,
Date ' Name,and Title of Officer (e.g., "Jane Doe, Notary Pu i")
personally appeared Gh vi 5 tn.pb{X J . CO ~E'O ru'lA 8veVldC\. M. CDS eo
Name(s) of Signer(s)
~ersonally known to me - OR -1'1, ~ro.,.eel ts me Q~ the Q3~iE. sf Eal.ig~~tml' oHidsAse to be the
person(s) whose name(S)~SUbSCribed to the within
instrument and. acknowledge to me that.ftel5Ae~
executed thesame'i~authorized
capacity(ies), and.that:by Aislher(i@F);ignature(s) on
ALUSON STERETT the instrument the person(s), or the entity upon behalf of
-(ii Comm~.~1506794 which the person(s) acted, executed the instrument.
I ",' Notary PublIc .. CalIIomIa WITNESS my hand and official seal.
San DI!9O CounIy
My comm. ExpnIAug 6. Mu06YI ~tw1'
, - l' . (
Signature of Notary Public
DOCUMENT TYPE. COY\ set' \J Cl.-tlGY\ f(l~e\l'\ei"" Deed
DOCUMENT DATE. \-5-05
OTHER SIGNERS.
Conservation E?sementld .
6428
Page 8
CERTIFICATE OF ACCEPTANCE
This is to Certify that the interest in real property conveyed by the Conservation Easement by
Christopher J. Coseo,andBrenda'M. Coseo;.l'rustees of the Coseo Family Trust, dated January 5, 2005,
to the City oi 'Poway, Grantee, and to the California Department of Fish and Game, as a third party
beneficiary, a governmental agency (u.nder Government Code Section 27281), is hereby accepted by the
undersign:ed officer on behalf of the City of Po way, pursuant to authority conferred by Resolution No. 34 of
the City of Poway on January 20,1981
GRANTEE. City of Poway
BYX~~
Title: L. Diane Shea, Citv Clerk
Authorized Representative
Date. February 5, 2005
. . 6429
EXHIBIT A
BIOLOGICAL CONSERVATION EASEMENT
THAT CERTAIN AREA SHOWN AS OPEN SPACE EASEMENT ON
L0T 3S OF CITY OF POWAY TRACT NO. 98-02 HERITAGE RANCH
ESTAIES, ACCORDING TO MAP NO. 14388, FILED IN THE OFFICE
OF THE COUNTY RECORDER OF SAN DIEGO COUNTY,
CALIFORNIA ON !VIAY 28, 2002, FILE NUMBER 2002-0391382
OF OFFICIAL REC<JRDS.
. EXHIBIT B .
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Lot 35 6430
Individual Lot Declaration
The HerztageEstates
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"'-"" T \ & Utility Easement
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ProPertl Line ----- 5 hpe Lxation top~ ~
?!... Space -..-- toe
asement une Drainage Swak/Culvert
Storm Drain -=-==-:::(:! = = 0 tOO 200
Sewer Line -$-- I
Water Line - "'-- Budding Envelope I Sr4kinJul
Sewer Line C;onnectjo~ .@ Common Area ~
Water Line Connedion @ Maititenanee -
Easement HCEA.
Utility Omneelien: (fj) Maintained
Telephon~ Gas, Sireet Light ,k
Electric, TV Cables
ut Number ------. Fire fiydrant ~
ut Size 35
-----.; 8.43
Finished Pad A""
Elevation ____ n.