Loading...
Grant of Open Space Easement 2003-0568668 -. . 9275 DOC ,"2003-D5&B668 . Re~or,ding Requested By' MAY 1!:!, ?Q05~10:0B AM I CITY OF POWAY .. I OfFICIAL RECORDS . I Whenrecorded,maillo' SAN DIEGO COUNTY 'RECORDER'S OFFICE ) GREGORY. J.SMITH, COUNTY'RECORDER ,1 City Clerk . - FEES:;'" .. 0:00 . CITY OF POWAY "'OC: NA I "- Post Office Box 789 '(\1111111111\11\\\1111111111111111111\1\\\11111111111111111111\11111111 I Poway, CA 92074-0789 :~:L. __ _ __ 2003.0568668 \~ A portion of APN 278.240.15 Space Above Line for Recorder's, Use Only '2..7g-'2.40-35 DOCUMENTARYTRANSFER TAX $ J?5 lOP OPEN SPACE EASEMENT NF THIS OPEN SPACE EASEMENT is made this ~ day of April , 2003, by Luxury . OCNA Developers, Inc" as Owner (hereinafter "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.ownerin fee simple of certain real property in the City of Poway, County of San Diego, State of California, more particularly described in Exhibit "A" (legal description) and Exhibit "B" (easement plat) attached hereto and incorporated by 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,ofthe United Slates, C The Property provides an un-vegetated ephemeral stream tributary to Los Penasquitos Creek. Riparian corridors are considered to be sensitive areas, worthy of preservation by the City of Poway D This Open Space ,Easement provides protection for 044 acres of land, which contains an ephemeral stream tributary to Los Penasquitos Creek. E. Grantor intends to convey to Grantee the right to preserve and protect the conservatioi71 values of the Property in perpetuity in accordance with Covenants, Terms, Conditions and Restrictions contained herein as required pursuant to the City of Poway's approval ora Mirior Development Review Application (MDRA 02-84) for construction of a single- family residence involving said Property F 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 onhis Open Space Easement for the benefit of this generation and the generations to come, I 03~06L\ . 9276 . COVENANTS, TERMS, CONDITIONS AND RESTRICTIONS In consideration of the above recitals. and the mutual covenants, terms, conditions, and restrictions contained herein, and pursuant toCa!ifomia Iqw, including Civil Code Section 815, et seq" Grantor :heret5y' voluntarily deeds :and conveys to Grantee Open Space 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 Open Space 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 Open Space 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 purposes of this Open Space Easement, exclusive of activities necessary for flood control in accordance with the Memorandum of Understanding ("MOU") between the City of Powayandthe Califomia Department of Fish and Game, 2. Grantee's Riqhts, To accomplish the purposes of this Open Space Easement, Grantor hereby grants and conveys the following rights to Grantee by this Open Space Easement: (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 Open Space Easement including Grantors 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; IC) To preventiany activity on or use of the Property that is inconsistent with the purposes of this Open Space 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 Open Space Easement; id) All mineral, air and water rights necessary to protect and sustain the biological resources of the Property; and 3. Prohibited Uses, Any activity on or use of the Property inconsistent with the purposes of this Open Space Easement and not specifically reserved as a right of Grantor is prohibited, Without limiting the generaiity of the for-egoing, the .following uses by Grantor and Grantor's agents are expressly prohibited unless specifically provided for through the Poway Habitat Conservation Plan, \a) Unseasonal watering. use of he~bicides, rodenticides, or weed abatement activities, incompatible fire protection activities and any and all other uses which may adversely affect the purposes of this Open"Space Easement; (b) Use of off-road vehicles; (c) Grazing or surface entry for exploration or extraction of minerais; 2 . 9277 . (d) Erection of any building, billboard, sign; (e) Excavating, dredging or removing of loam, gravel, soil, rock, sand or other maleriaLexcepf t~ perform care Cind maintenance of Rattlesnake Creek by the City of poway or its designee's in accordance with the MOU between the City of Poway and the California Department ofFish and Game; (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, (3) prevention or treatment of disease, or (4) flood control in accordance with the MOU between the City of Poway and the California Department of Fish and Game; (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 ma'y 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 Open Space Easement. 5, Reserved Riqhts, Grantor reserves to itself, and to its personai 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 Open Space Easement. 6. Grantee's Remedies. If Grantee determines that Grantor is in violation of the terms of this'open Space 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. If Grantor fails to cure the violation within fifteen (15) days after receipt of said written notice and demand from Grantee"or'if the cure reasonably requires more than fifteen (15) days to complete and Grantor fails to begin the cure within the fifteen (15) day period or fails to cont~nue 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 Open Space Easement, to recover any damages to which Grantee maybe entitled for violation by Grantor of the terms of this Open Space Easement, to enjoin the violation, ex parte as necessary, by temporary or permanent injunction. withouUhe necessity of proving either actual damages or the inadequacy of otherwise availaQle legaLremedies,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, determin!,!s 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 paragrapn 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 Open Space Easement. Grantor and Grantee agree that Grantee's sole remedy for any violation of the terms onhis Open Space Easement is the injunctive relief described in this section, both prohibitive and mandatory, in addition to such other relief to which 3 . 9,278 . Granteernay be entitled, including specific performance of the terms of this Open Space Easement, ,without the necessity of proving either ,actual damages or the inadequacy of I "-" . .~.' otheI>>'is.e ava,UOjb,le., leg'!,1 remedies, Grantee's' remedies described in this section shall be ,cumulative and"shall be :in'addition torall remedie~l1o,wofhere.after existing at law orin equity, including but,nof'limitedto, the 'remedies set forth in'Civil Code Section 815, ef seq" inclusive, If Grantee ,takes immediate action as provided above, Grantee shall within 10 days thereafter give written notice to ,Grantor or its successors, Who may thereupon appeal such action to Grantee's City Council 6.1 Costs of Enforcement Any costs incurred by Grantee in enforcing the terms of this Open Space Easement against Grantor, including, but not limited to, costs of suit and attorneys' fees, and a~y', costs of restoration necessitated by Grantor's violation or negligence under the terms ofthis,Open Space Easementshall'be borne by Grantor 62 Forbearance and Waiver Enforcement of the terms of this Open Space Easement by Grantee shall be aFthe discretion of Grantee, and ,any forbearance by Grantee to exercise its' rights under this Open Space, Easement by Gral1torshall ,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 Open Space EAsement or of any onhe Grantee's rights under this Open Space Easement No delay or omission by Grantee in the exer~ise of any right or remedy upon any breach by Grantor shall impair such right or remedy orbe construed as a waiver 63 Acts Bevond Grantor's Control, Nothing contained in this Open Space Easement by Grantee shall be,at the discretion of Grantee to,bring any action against Grantor for any injury to change in th'e Property resulting from, causes beyond Grantor's control, including, fire, flood, storm, and earth movement, or any Pcuden! action taken by Grantor under emergency conditions to prevent, abate, or mitigate significant injury to the Property resulting from such causes. 7 Propertv Manaqementand Maintenance. Grantor and'its successors shall maintain the Property in accordance with the terms and conditions as setforth herein. 8. Access, This Open ~pace Easement does hot 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 or to designee of Grantees, 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 or subsequent transferees 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 Open Space Easement, and shall furnish Grantee with satisfactory evidence of payment upon request 9,2, Hold Harmless, Grantor shall hold harmless, indemnify, and defend Grantee amJ its members, directors, officers, employees, Ojgents, contractors, ancj their lieirs, and representatives, sLJccessors and assigns (collectively "Indemnified Parties") from and against all liabilities, penalties, costs, losses, damages, expenses, causes of action, claims, 4 . 9279 . demands, or judgments, including without limitation, reasonable attorneys' fees, arising from or in.any way connected with: (1) injury to or thedeEJth of any person, or physical damages to any PEope.!ty resulting' from anY' act, omission, condition, or other matter related to or occurring on or 'aboutthe Property, regardless of cause; (2) the 'obligations specified in Sections 4, 9, and 9 1, arid (3) the existence or administration of this Open Space Easement 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 which bear the original signatures. 10 Extinquishment This Open Space Easement may be extinguished by Grantor and Grantee by mutual written agreement upon the request of either party 11 Amendment This Open Space Easement may be amended by Grantor and Grantee only by mutual written agreement Any such amendment shall be consistent with the purposes of this Open Space Easement and, except as provided in Section 10, shall not affect its perpetual duration, Any such amendment shall be recorded in the official records San Diego County, State of California, 12. General Provisions. (a) ControllinQ Law. The interpretation and performance of this Open Space Easement shall be governed by tne laws of the State of California and applicable federal law (b) Liberal Construction. Any general rule of construction to the contrary notwithstanding, this Open Space Easement shall be liberally construed in favor of the deed to effect the purposes of this Open Space 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 Open Space Easement that would render the provision valid shall be favored over any interpretation that would Tender it invalid. (c) Severability If a court of competent jurisdiction voids or invalidates on its face any provision of this Open Space Easement, such action shali not affect the remainder of this Open Space Easement If a court of competent jurisdiction voids or invalidates the application of any provision of this Open Space Easement 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 of the parties with respect to the Open space easement and supersedes all prior discussions, negotiations understandings, or agreements relating to the Open space easement, ail 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 11 (e) Bindinq Effect The covenants, terms, conditions, and restrictions of this Open Space Easement shall run with the land and shall be binding upon, and inure to the benefit of, the parties hereto and their respective personal representatives, heirs, successors. (f) 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, , 5 . 9280 . (g) Counterparts, The parties may execute this instrument in two or more counterparts, which shall, in the aggregate, be signed by Grantor and Grantee; each . ~'F', ,'. counterpart:shallbe deemed an original iilstrumentas: againstany party who has signed it. In thf:l !3vEllJt'of any dispaiity'between thecouhterparls'prdduced, the recorded counterpart shall be controlling. IN WITNESS THEREOF; Grantor and Grantee have entered into this Open Space Easement the day and year first above written, GRANTOR: BY Ken epresentative of Luxury Developers, Inc, POBox 2695 Escondido, CA 92033 6 19281 . CALlFORNIAALL..PURPO EACKNOWLEDGMENT s"" 0' C:!:/ft"V7U~ County of ~ /r ~~ On' ~ / ~ ~g~;re me, ~17J€Li , D", ( ~ . N"" "d ml, 01 Off"" 1'9" Jao, Doe. No"~ p, 1"1 personallyappear~d E.N' CIfI3R..iV IS;: Jj , . Name(s}of SlQllcr(s) o personally known to me - OR -fJoved to me on the basIs of satisfactory evidence to be the person(s) whose name~re subscribed to the within instrument and acknowle ed to me th~he(they executed the ~e I~er(their authorize 'capaclty{ies), and that by his her Ir slgnature(s) on the instrument the person{s), '1: r the entity upon behalf of which the person{s) acted, t $ ........"m ,,,~"d ., """,,",,' _ Comm,,13JS43J Ul U'J NOTARY PUBLIC_CALIfORNIA - J Senni,goCnunl'l I... i Ny Comm hIlM'I Sept. '1,20~ j OPTIONAL Though the information,below is not required,byJaw"it may provevafuable to personsreJyingon.'the document and courd prevent fraudulenfremovE1f:'and reattachment of this form to'another document. Description of Attached Document EIl-..s.~ mE I\l T CJ EE~ Title or Type of Document: IJpEN .s PACE. Document Date: +-I%~:L()D,3 Number ot Pages: II) Signer{s) Other Than Named Above: . #be' .L.-CJ~ f /9-NI'I t:J tt;:C/ PL..E-S Capacity(ies) Claimed by'Signer(s) vS~ Signer's'Name: f( EN UJ;E'I2N / 1i@ner's Name: o Individual o Individual )5( Corporate Officer o Corporate Officer Title{s): Title{s): o Partner - 0 Limited O.General o Partner - 0 Limited 0 General o Attorneycin-Fact o Attorney-in'Fact o Trustee o Trustee -=l o Guardian or Conservator o GtgHdian'or Conservator o Other' Top of'thumb here o Other' Top of thumb here , , Signer Is Representing: Signer Is Representing: c 1994'N~lional Notaiy Ass-ociaiion. 8236 R~mmetAve., p.6"aox 71 e4 . Canoga Pafk. CA 91309.7184- Pro(tNo. 5907 Reorder: Ca'il ;:;II-Free l-aoO-8?6~27 . 92'82 . : CERTIFICATE OFACCEPl'AJ\JCE This is toCer;jify that the intE'lresf in re~[ prqp,erty conveyed by the, Open. Space Easement" bY Luxury Developers, Inc" dated,A.1fvl 10,'?CO'9 to the City of Poway, Grantee, a governmIlntalagency, (uOderc;overnmEtnt'C,ode Section'27281), is hereby accepted by the undersigned officer on, ,behalf of City of Poway pursuant to authority conferred by Resolution No ,34 adopted on January 20, 1981 ,and 'the Grantee consents to Recordation iheredf,byils"dulyaulhorized office, ... . GRANTEE. City of Poway Bd~~~~~ Title: Lori Anne Peoples; City Clerk. Authorized. Representative Date: jpviA \ <6 'VJrY; . M:\City\planning,\cmr\LuxuryDevelopersOpenSpac.e.doc 7 . 9;28,3' . LAND 'DESCRiPtiON Th~fIl.QRIIQN ofP3!~1 1 oLParcehMap.No..19055;.theCity ofPoway;8ounty;ofSiln Diego, State; Of Galifomia, filed' ih the Office of tl1l: COJ,mty Recorder or$~'!F?iego, September 9, 2002, more particularly desciibedas'ParceI Aand pirrcelll asJoIlows: PARCEL A Commencing' at the. soutliwesterly comer of said Par(;e\ 1;, thence easterly alol)g the southerly line 'thereof'South 7l10:fQ'21" East, 1001 feet to the TRUE '!}OINT OF BEGrNN1Nd,thence<'northerly aIohg'a line parallelwitb, and 10:00 feet easterly 1. ' measured at tight, angies .to, the westerly line bf said 'parcel 1 North 13~I7'Oi" EaSt, 104,62 feet; t.l1ence leavin~ said parallel line North 63024'ST East, 14,76, feet; thence South .26"35'03" East', 68.12 feet;' thence South 13017'01" West, 60;08 fe,et to the s6utherlyJine.6fSaid Rarcef 1; thence'westerly along, said southerly lineNorth ,78030'21" West, SS03 [eeHothe TiUJEpOOO'OF BEGINNINti PARCEL B Commencihgat the tibrtheast~rlyComer of said Parcell, thence southerly along the easterly line)here6f Sotith.00"35'2T' West 16,04 feet'to the southeasterly sideline of a 3000;footwj5le t:ilsemtlllt grant'e51 to,John A and,lMllfy T Spirrkman recorded.May 21, 1959 in Book 76.74?,plI!l~ 549 ofOffidal Records :filedin thl: Office of tile 'Sail Diego County Recorder; thence southwesterly ,along said soutlitlasterly .sideline South 69051' I3'''West, 20 06. feeUo .the TRUE 'POINT OF BEGINNING, thencecon.tinuing southwesterly along said sideline ' South 69051' 13" West, 20570 feet;'thence,leavingsaid sideline South 52033 '28" West, 99.33 feet; thence'South 37026'32" East, 5500 feet; thence North 52"33'28'; East, 12460 feet; thenCe North 61018'19" East, 81 72 feet; thence North 6905I'13"East, 148'18:feet to a line,piiraIlel with, and 18.70 feetweStefly measur.ed at rigl1tangles iO;',theeasterly line of said'Parcel. 1; thence northerly along said paraIlel'line'North,00"35'2T East, 48.12 feet' to the .TRUE POINT OF BEGINNING, EXHISITA -- . 9.2:8'4 . . . \ ! 1604' , ApN 278-240020 , -- \ I ~ - , ~ \ TP~~~ i ' ~ ~ ~, ~ ~ APN 278"240"21 - - ~ - EXISllNG 30' EASEMENT ~ ElK 87674; PG 549 O.R. ~ ~ SCALE. 1" = 60' z ~ ~ ~ - - - - - r::- -~--- ~ ~ N f...-...--- in r') b 0 -- if) PARCEL 1 PM 19055 CITY OF POWAY I \ \ \ \ , , /EXISTING -::-:_-'c-____ EASEMENT (TYP) - ~ - -------- ~-- ------- ____ r - ~- - - ----- ----__..J -- - ---... --- - - .. - - - - .. - - - - - APN' 278-240-15 - - .. - - , -- -- - - , .. - - - -----... '" , - - - - .. .. - , , .. SITE ADDRESS: EAST'IALE 'ROAD POWAY, I CA, 92064 Af'IV: 278-240-15 ~ ENGINEERING CITY OF POWA Y & SURVEYING 1525i5. ESCONDIDO BLVD., STE A OPEN SPACE EASEMENT ESCOHDlOO, CA., ,92025 EXHIBITB ,,760 741"':;0533 'S265Pt.;'A 1.DWG