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\
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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;
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(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
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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
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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,
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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,
,
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. 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
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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
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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
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