Conservation Easement Deed 2004-0256467
;. ~ ..' ; . DOC' 2004-0256467
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RECORDING REQUESTED BY: MAR 29, 2004 8:14 AM
~. CITY OF POWAY
OFFICIAL RECORDS
~L~ WHEN RECORDED MAil TO: SAN DIEGO COut~TY RECORDER'S OFFICE
. .' .'clti'cl:ERK GREGORY J. SMITH. COUNTY RECORDER
f~ CITY OF POWAY FEES: 0;00
POBOX 789 DC: NA
POWAY CA 92074-0789
Space Above Line for Recorder's Use Only
APN' 323-290"11
MDRA 00-118
CONSERVATION EASEMENT DEED
THIS CONSERVATION EASEMENT DEED is made this \ <p-tl--day 01 MA-n..:::.U ,2004, by SJephen C
T~ttle and Deborah 0 Tuttle, asCo.Trustees 01 the Tuttle Family R.evocable Trust U/T/A dated May 12,
2000 ("Grantors"), inlavor of. CitY 61 P6Way ("Grantee"), acting by and through its Deveiopment Services
Department, with relerence to thefbiiowing lacts.
RECITALS
A. Grantor is the sole owner in lee simple 01 certain real property in the City 01 Poway,
County 01 San Diego, State 01 Calilornia, more particularly described in Exhibit "A" and Exhibit "B"
attached hereto and incorporated by this relerence (the "Property").
B The Property possesses wildlife and habitat values (coiiectively, "c~nservation values") of
great importance to the Grantee, .the people of the City of P6way, the people of the State 01 Calilornia,
and the people 01 the. United States.
C The Property provides high quality habitat consisting 01 Diegan Coastal Sage,Scrub" The
Property has been identilied as a priority addition to the Poway Subarea' Habitat ConservEition, Plan in that
the parcel links the South Poway Cornerstone lands to the west with the North Fork Poway Creek
Resource Area lands to the east.
D The City 01 Poway is Eiuthorized to hold conservation easements lor the pr~servation 01
land in its natural, scenic, agricultural, historical, lorested, or open space condition. The City 01 poway
has authority to hold easements lor.lhese purposes pursuant to Calilbinia Civil Code Section 815.3(b).
E. The State 01 California, by and through its Departinent of Fish and' Game (CDFG), has
jurisdiction, pursuant to the Fish and Game Code Section 1802: over the conservation, protection, and
rnanagernent of fish, wildlife, native plants and the habitat necessary for biologicaiiy sustainable
popuiations of those species.
F The United States Fish and Wildlife Services (USFWS) has jurisdiction over the
conservation, protection, restoration, enhancement and. manage,ment 01 fish, wildlile and native plants
and the habitats on which they depend underthe Endangered Species Act, 16 U.S.C Section 1531 et
seq. (ESA), the Fish and Wildlile Coordination Act, 16 U.S.C Section 661-666c and other applicable
laws.
G. This Conservation Easeinentprovides protection for 3.40 acres 01 land that contains high
quality Diegan Coastal Sage Scrub located within the City 01 Poway's Subarea Habitat Conservation
Plan.
H. Grantor'intends to convey to".Grantee the right to preserve and protect the conservation
values 01 the Property in perpetuity 'in accordance with Covenants, Terms, Conditions and Restrictions
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078'D ,(to oq-043
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" 90ntaine,d; herein:.i,Q eX9hange for Grantee's impacts to biol~gical resources as iaentified in the Biological
l~_eRort for Minor Develop.ment Review permit (MDRA) OO't18 on file with the City of Poway Planning
Division.
I. Gr<j(ltee agrees by accepting this grant to honor'the intentions of Grantor stated herein
and to. pres,erve;ana' to protect in perpetuity the conservation values of the Property in accordance with
the terms of this Conservation Easement for the benefit ofthisgeneration and the generations to come.
COVENANTS, TERMS, CONDITIONS AND RESTRICTIONS
Inconsideration of the above recitals and the mutual covenants, terms, conditions, and
restrictions contained herein, and pursuant to California law, including Civil Code Section 815, etseq.,
Grantor'hereby voluntarily deeds'and conveys to Grantee a c()nservation easement in perpetuity over.the,
Property of the nature and character and to the extent hereinafter set forth ("Conservation Easement").
1 Purpose. The purpose of this Conservation Easement is to ensure the Property will be
preserved in a naturai condition in p~rpetuity and to prevent any ~se 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 to CDFG as a third party beneficiary of
this easement, by this Conservation Easen'i'ent Deed:
(a) To preserve and protect in perpetuity the conservation values of the Property in
accordance with this Conservation 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 SE)cti()n 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 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
(d) 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,of this Conservation Easeme.nt,and not.~pecifically reserved as a right of Grantor
is prohibited. Without limiting the generality ()f the foregoing', !he following uses by Grantor, Grantor's
agents, and third parties, are expressly prohibited unless specifically provided for through the Poway
Subarea Habital'Conservation Plan.
(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;
(b) Use of off-road vehicles; except vehicles used for property maintenance required
by the City of Poway
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(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
freatment of disease.
(h) Planting of trees or other vegetation except by written permission from the City of
Poway
4 Grantor's Duties. Grantor 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 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 Grantor
of such violation and demand in writing corrective action sufficient to cure the violation. Grantee shall
also notify CDFG If Grantor fails to cure the violation within thirty (30) days after receipt of said written
notice and demand from 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 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 availabie 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 Iimifing 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 soie discretion, determines that circumstances require immediate action
to prevent or mitigate significant damage to the conservation values of the Property, Grantee may pursue
its remedies under 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 include the injunctive relief described in this section,
both prohibitive and mandatory, in addition to such other reliefio which Grantee may be entitled, including
specific performance orlhe terms of this Conservation .Easement, without the necessity of proving either
actual damages or the inadequacy of otherwise avaiiable 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.
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
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,Section 81.?7, the California Attorney General or third-party entitles organized for conservation purposes
have standing as interested parties in any proceeding affecting this Conservation Easement as against
.Grantor
CDFG as a third P"!rty beneficiary of this Conservation Easement shall have the same
rights as Grantee under this section to enforce the terms of the Conservation 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 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 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 or CDFG'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 shall be construed to entitle', Grantee or CDFG to bring any action against Grantor for any injury
to or change in the Property resulting from causes beyond Grantor's control, including, fire, flood, storm,
and earth movement, or from any prudent action taken by Grantor under emergency conditions to
prevent, abate, or mitigate significant injury to the Property resulting from 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
CDFG or USFWS.
7 Propertv Manaqement.and Maintenance. Grantor and its successors shall maintain the
Property in accordance with the terms and conditions as set forth herein.
8. Access. This Conservation Easement does not convey a general right of access to the
public; however, after receiving approval from Grantor, not to be unreasonably withheld, access for
scientific research and interpretive purposes, shall be reserved to the Grantee and CDFG or to the
respective designees of Grantee and CDFG.
9 Costs and Liabilities. Grantor retains all responsibilities and shall bear all costs and
liabilities of any kind including transfer costs, costs of title and documentation review, and costs related to
the ownership, operation, upkeep, and maintenance of the Property
9 1 Taxes. Grantor shall pay before delinquency alllaxes, 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, and shall furnish Grantee and CDFG with satisfactory 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 heirs, and
represeritatives, successors and assigns (collectively "Irdemnified Parties") from and against all liabilities,
penalties, costs, losses, damages, expenses, causes of action, c1",ims, demands, or judgments, including
without limitation, reasonable attorneys' fees, .arising from or in any way 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.
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
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.(b) Liberal Construction. Any general rule of construction to the contrary'
notwithstandi~g;..ihis Conservation Easement shall be liberally construed in favor of the deed to effect the
piJrposesofthis C<?n~ervation 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
o('this Conservation Easement that would render the provision valid shall be favored over any
interpretation ihatwouid 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 Easem'ent Deed. If a court of competent jurisdiction voids or invalidates the application of
any p'rovision 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 Aqreement. This instrument sets forth the entire agreementoUhe parties
with respect to the Conservation Easement and supersedes all prior discussions, negotiations,
understandings, or agreements relating to the Conservation Easernent; all of which are merged herein.
No alteration or variation of this instrument shall be valid or binding unless contained in an amendmenHn
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 representatives, heirs, successors, and assigns and shall continue as a
servitude running in perpetuity with the Property The covenants hereunder benefiting Grantee shall also
benefit CDFG.
(g) Termination ofRiqhts 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 Conservation Easement. is 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 Conservation Easement Deed 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 Conservation Easement Deed shall be subject to the availability of
appropriate funds.
(m) Effective Date. This Conservation Easement shall be effective upon recording
with the San'Diego County Recorder's Office.
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IN WIJNESS WHEREOF, Grantor and Grantee have entered into this Conservation Easement
the,day and'yearfirst above written.
~yX-
GRANTOR: 12775
.Property owners of~ Gate Drive, Poway, CA 92064
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Stephen C Tuttle .
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Debora 0 'f uttle .'
Approved as to Form:
Office of the City Attorney
Tamara Smith, City Attorney
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CA.L1FORNIA ALL.PURPOSE ACKNOWLEDGMENT
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State of California }ss.
County of -5t;v' /)1 E:~ () ,
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, a -...; 'OF subscribed to the within instrumen and
, < . Comm~n # 1450304 acknowledged to me that ~/~/they executed
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, j _ ' MyClHS::,.~,;~.200i capacity(ies), and that by itiS/l)<lr/their ,
signature(s) on the instrument the person(s), or
------------- the entity upon behalf of which the person,s)
, acted, executed the instrument.
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, OPTIONAL ,
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent removal and reattachment of this form to another document. ,
Description of Attached Document ,
Title or Type of Oocument: LO;tJSt:.7?V /}n D /V USCf11 e /()r Ja-t:::, I
Document Date: .:/-1/-1/( Number of Pages: If
Signer(s) Other Than Named Above: .5-n-J/e-/II" e~/S
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D Corporate Officer - Title(s): I
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D Trustee ,
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Signer Is Representing: I
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@1999 National Notary ASsOCiation' 9350 De Solo Ave" P,O, Box 2402 . Chatsworth, CA 91313-2402' www.nalionalnotary.org Prod,No.5907 Reorder: Call Toll-Free 1-800-876-6827
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EXHIBIT v A v
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EXHIBIT "B"
QJ1J] illAN1El ~t!ltif{llFf~lIN~ , lIWQJ.,
4525 Cochise Way, San Diego, CA 92117
Phone" (858)483-7123, Fax: (B58) 483-3271; cblandsurvev(r;Jaol.eorn
Karl F. Cebei PLS.
Licensed by the California Board of Registration for Professional Engineers and Land Surveyors
LEGAL DESCRIPTION OF BIOLOGICAL EASEMENT FOR DR. rUTILE LOT IN PO WAY,
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13920 GATE DRIVE, APN 323c290-H-00, A PORTION OF LOT 4. IN SEC 18, T14S, R 1 W, SBM,
Biological easement 1.
BEGINNING AT THE NORTHWESTERLY CORNER OF DR. TUTILE LOT,
THENCE SOUTH 88042~04 EASTmSTANCE 294 03', THEN<:~ SOLtTH 00018'04" WEST
DISTANCE 539.00';THENCE ~ORTf:l4rOO'00" WEST DISTANc:E 152.00', THENCE NORTH
73000'00" WEST DISTANCE 6<1,00'; THENCE SOUTH 86020'00"'WEST DISTANCE 121.35',
THENCE NORTH 00018'44" EAST DISTANCE 431.05' TO THE POINT OF BEGINNING,
CONTAINING 3.040. ACRES, MORE OR LESS
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Biological easement 2
BEGINNING AT THE SOUTHWESTERLY CORNER OF DR. TUTILE LOT,
THENCE NORTH 00018'44" EAST DISTANCE 163.00', THENCE SOUTH 74010'03" EAST
DISTANCE 50.91', THENCESOl'JTH 35000'00" EAST DISTANCE 185:00', THENCE NORTH
89006'19" WEST DISTANCE 156.00' TO THE POINT OF BEGINNING,
CONTAINING 0;360 ACRES, MORE OR LESS.
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Section 1240.680 notwithstanding Cbde of Civil Procedure Sections 1240.690
and 1240.700.
10 Assianment This Conservation Easement may not be transferred, assigned, or
extinguished without the prior written approval of CDFG. Grantee may assign its rights and obligations
UndeT this :Conservation Easement oQly to an entity' or org!lnization authorized to acquire and 'hold
conservation easements pursuant to Civil Code Section 815'3. Grantee shall require the assignee to
rec6rd'the assignment in the county where the Property is located.
11 Subseauent 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 and CDFG of the intent to transfer any interest at least forty-five.(45),days prior
to the date of such transfer Grantee or CDFG shall have the ~ight to prevent subsequent,lransfers.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, Grantee or CDFG 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 not 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 personally delivered or sent by facsimile to the persons set forth below or
shall be deemed given live (5) days after deposit in the United States mail, certified and postage prepaid,
return receipt requested and 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' Stephen C. & Deborah 0 Tuttle
11765 Scripps Lake Drive
San Diego, CA 92131
To Grantee: City of Poway
POBox 789
Poway CA 92074
At\: Planning Director
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 after 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 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 ot the recorded easement.
15. General Provisions.
(il) Controllinq Law The interpretation and performance of this Conservation
Easement shall be goVerned by the laws of the State of California.
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CERTIFICATE OF ACCEPTANCE
chis is to Certify that the interest inTeal property con'veyed.by the Conservation Easement by
'Stephen;C Tuttle'and'DeborahO Tuttle, dated March 18, 2004 to the City of Poway,
.Grantee, a governmental agency (under Government'Code Section 27281), is hereby accepted by the
undersigned'officeron behalf of the City of Poway, pursuant to authority conferred by Resolution No 34
of.the City of Powayon January 20,1981
GRANTEE. City of Poway
B~ Oim, () Q
Sherrie O. Worrell, Deputy City Clerk
Title: Lori AnnePeoples, City Clerk
Authorized Representative
Date: March 25, 2004
M:\planning\Lisa\Projects\Bio Conserv Ease tuttle.doc
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