Conservation Easement Deed 2003-1463614
. 'DOC' 2003-1463614
RECORDING REQUESTED BY' DEe 11. 2003 8:22 AM
CITY OF POWAY
~ OFFICIAl RECORDS
WHEN RECORDED MAIL TO' SIIN DIE60 COlliffV RECORDER'S OFFICE
liP CITY CLERK GREGORY J. SMITH. COUNTV RECORDER
~,t CITY OF POWAY FEES: 0.00
POBOX 789 DC: NA
f!Y POWAY CA 92074-0789
Space Above Line for Recorder's Use Only
APN 277-220-05
CONSERVATION EASEMENT DEED
TIdIS CONSERVATION EASEMENT DEED is made this,1" day of December 2003, by Charnan, LLC, a
California Limited Liability Company ("Grantors"), in favor of City o!"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 incorporated by,tnis 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 provLdes 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. Two pair of California Gnatcatchers were observed on site. Conservation of this property
therefore will preserve habitat of'a protected species.
D The City of Poway is authorized to hold conservation easemenls for the preservation of
land in its natural, scenic, agricultural, historical, forested, or open space condition. The City of Poway
has authority to hold easements for these purposes pursuani to,California Civic Code Section 815.3(b).
E. The State of California, by and through its D~partment of Fish and Game (CDFG), has
jurisdiction, pursuant 10 the Fish and Game Code Section 1802" oyer the conservation, protection, and
management of fish, wildlife, native plants and the habitat necessary for biologically sustainable
populations of those species.
F The United States Fish and Wildlife Services (USFWS) has jurisdiction over the
conservation, protection, restoration, e~hancement 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 prepared by P&DEnvironmental dated January 2000
for subdivision TtM 98-02, "Heritage lI'Estates,Biological Technical RerlOrJ", identified impacts to Coastal
Sage Scrub (CSS) habitat. Mitigation of impacted habitat was resolved as part ofthe Final Environmental
Impact Report, Sch. No. 98091083', through the preservation of open space easements on each parcel
throughout the subdivisioQ,. Open space areas were identified on the map no. 14388, filed in the office of
theC~unty Recorder of'San Diego County, California on May'8, 2002, file number 2002-0391382. on Lot
5 for impacts to CSS. Recordation of Biologicai Conservation Easements will ensure preservation of
areas set aside for coastal sage scrub habitat.
H, Grantor intends to convey to Grantee the,-right to preserve and ,protect the conservation
values of the Property in perpetuity in accordance with Covenants, Terms, Conditions and Restrictions
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contained herein in exchange for Grantee permitting Grantor's construction of a single-family residence
within Heritagell:Estates.
1. 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 of this Conservation Easement for the benefit of this generation and the generations to come.
COVENANTS, TERMS. CONDITIONS AND RESTRICTIONS
,In consideration of the above recitals and the mutual covenants, terms, conditions, and
restrictions contained herein, andpursuant to California law, including' Civil Code Section 815, et seq.,
Grantor hereby voluntarily deeds and conveys to Grantee conservation easement in perpetuity over the
Property of the nature and characler and to the extent hereinafter' set forth ("Easement"),
1 Puroose. The purpose 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, \~at 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 arid their habitat in a manner consistent
with the habitiWconservation purposes of this 'Conservation Easement.
2. Riqhts of Grantee. To accomplish Ihe purposes 6f this Conservation Easement, Grantor
hereby grimts'and conveys ,the following rights to Grantee and'theState of California Department of Fish
and Game as a third party beneficiary of this easement by this Conservation Easement Deed:
(a) , To preserve and protect in perpeluity the conservation values of the Property in
accordance with this easement;
(b) To enter upon the property at reasonable times in order to m9nitor 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 section 4, and for
scientific research and interpretive 'purposes by Grantee or its designees; and CDFG and its designees,
(c) To prevent any activity on or use of the Property that is inconsistent with the
purposes of this Conservation Easement-and to require the restoration of such areas or features 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, injunctiv~'relief, the terms and conditions of the
Easement.
3. Prohibited Uses. Any activity on or use of the Property ,inconsislent with the habitat
conservation purposes of this Conservation Easement and not specifically reserved as a right of Grantor
is prohibited. Without limiting the generality of'the foregoing, the following uses by Grantor, Grantor's
agents, and third parties, are expressly prohibited unless specifically provided for through the Poway
Subarea Habitat Conservation Plan/NCCP,
(a) Unseasonable watering, use of herbicides, rodenticides, or weed abatement
activities, incompatible fire protec'libn activities and any and all otheruses 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, and then only over existing roads.
(c) Grazing or surface entry for exploration or extraction of minerals;
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(d) Erection of any building, billboard, sign;
(e) Excavating, dredging or removing of loam, gravel, soil, rock, sand or other
material;
(I) 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) preve'ntion or
Ireatment 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 ~ctivitiesmay 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 ofthe Property..to
wit: clean up of all trash and debris"shall be the Grantor's responsibility
5 Reserved Riqhts, Gra_ntor 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 t() 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 not[ce to Grantor
of such violation and demand in'wri'ting corrective action sufficient to cure the violation. Grantee shall
also notify the California Department of Fish and Game. 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 completeand'Grantor fails to begin the cure within' the thirty (30) day period
or fails to continue diligently 10 complete the cure, Grantee may bring an action at law or in equ,i!y 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 available legal ,remedies,
or for other equitable relief, including" but not limited to,)he restoratiol'], of the Property to the condition in
which it existed prior 10 any such violation or injury Without limiting Grantor's liability therefore, Grantee
may apply any damages recovered to the cost of undertaking any corrective action'on the Property
If Grantee, in its sole discretion, determines 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 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 vioiations
of the terms of this Conservation Easement Grantor and Grantee,agree.that Grantee's remedies for any
violation of the terms ,of this Conservation Easemenl is the injunCtive relief described in this section, both
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prohibitive and mandatory, in addition'tosuch 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 actuai damages or the inadequacy of otherwise 'available legal remedies. Grantee's
remedies described in'this section shail be'cum~lative 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 inconsislent with this Conservation Easemenl, notwithstanding Civil Code
'Section 815,7, the California Attorney General or third.party entitles organized for conservation purposes
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have slanding as interested parties in any proceeding affecting this Conservation E'asement as against
Grantor
The California Department of Fish and Game (CDFG) as a third party 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' fe'es, and any costs of restoration necessitated' by Grantor's violation or negligence under the
terms of this Conservation Easemerit,shall be borne by Grantor
6.2. Grantee's'Discretion. Enforcement 01. the terms, of this Conservation Easement
by Grantee or CDFG shall be al the discretion of Grante~ 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 ollhe Grantee's rights under this Conservatioh 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 remeay or be construed as a waiver
6.3. Acts Bevond Grantor's Control. NtJthing c:ontained in this Conservation
Easement by Grantee shall ,be aUhe discretion of Grantee and CDFG to bring any action against Grantor
for any injury to change in the Property resulting from causes beyond Grantor's control, including, fire,
flood, storm, and earth movement, or',any prudent action taken by Grantor under emergency conditions to
prevent, abate, or mitigate significant injury to the Property resulting from such causes.
6.4 Deoartment of Fish and Game Riqhtof Enforcement. All rights and remedies
conveyed to Grantee under this Cons.ervation Easement Deed shall extend to and are enforceable by the
Department of Fish and Game or L.iSFWS.
6.5. Fence Installation and Maintenance. Grantor shall install and maintain a fence
between the approved development aT~a of the parcel and the 'Conservation easel)1ent D.eed area to
protect in perpetuity the conservation values and function of the Property The Grantor shall oblain
approval by the Grantee's Director Of Development Services regarding the specific location, type, and
height of the fence prior to its installation.
7 Prooertv Manaqement and Maintenance. Grantor and its successors shall maintain Ihe
Property in accordance with the terin's ~nd'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
respe~tive designees of Grantee and CDFG,
9, Costs and liabilities. Grantor retains all responsibilities and shall bear all costs and
liabililies of any kind including transfer costs, costs of title and documentation review, and costs related to
the ownership, operation, upKeep, and maintenance ofthe'Property
91 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"),. inclu.ding 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
representatives, successors and 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 attorl')eys' fees, ar[sing 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,
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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 <ldministration 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, <3t Code of Civil Procedure Section 1240.680
notwithstanding Code of Civil Procedure Sections 1240,690 and 1240.700"
10 Assiqnment. This Conservation Easement may not be transferred, assigned, or
extinguished without the pr,ior written approval of CDFG. Grantee may assign its rights and obligations
,under this Conservation Easement only to an entity or organization authorized to acquire and hold
conservation easements pursuanl to Civil Code Section 815.3.' Grantee shall require the assignee to
record the assignment in the county where the Property is located,
11 Subsequent' Transfers. Grantor agrees to incorporate the terms of this Conservation
Easement in any deed or other legal instrument by which Grantor divests itself of any interest, in all or a
portion of the Property, including, without limitation, a leasehold irterest. Grantor further agrees to give
'written 'notice to Grantee or the CDFG of the intent to transfer any interest at least forty-five (45) days
prior to the date of such transfer Grantee shall have the,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 enforceabiliiy
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, approvais, or communications from
o,ne party to another shall be personally d~livered or sent by facsimile to the persons set forth below or
shall be deemed given five (5) days after deposit in the United States mail, certified and postage prepaid,
return receipt requested and 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' Charnan, Limited Liability Company
Charles Yazel
. 13705 Pas eo de las Cumbres
Poway, CA 92064
To Grantee: City of Poway
PO 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 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) hou'rs 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,
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14 Recordation. Grantor ,shall 'promptly record this instrument in the official records of San
Diego County, Califo"fnia arid immediately notify the Grantee and CDFG through the mailing of a
confirmed copy of the recordea easement.
15. General Provisions.
(a) Controllino Law The interpretation and performance of this Conservation
Easement shall be governed by the:laws of the State of California.
(b) Liberal Construction. Any general ruie of construction to the contrary
notwithstanding, this Conservation Easement shall be liberally construed in favor of the deed'toeffect,the
purposes of this Conservation Easeme'ritand the policy arid 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 Ihis Conservation Easement thaI would render the provision valid shall be favored over any
interpretation that would render it invalid.
(c) Severabilitv 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 Easement Deed: If a court of competent jurisdiction voids or invalidates'the application of
any provision of this Conservation Easement Deed to a "person or circumstance, such action shall not
. .
affect the application of the provision Io other persons or circumstari'ces.
(d) Entire Aoreement. This instrument sets forth the entire agreement'of the parties
with respect to the Conservation Easement and supersedes all prior discus?ions, 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 bindirig unless contained in an amendment in
accordance with Section 13.
(e) No Forfeiture. Nothing contained h,erein 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 t() the benefit of, the parties hereto and
their respective personal representati,ves, 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 ofRiohts and Oblioations. Ap'a[ty's rights and obligations under this
Conservation Easement shall terminate only upon transfer of t/:le 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 execule ,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 Easement is T}ot,subject to ,modification or amendment except
in writing and signed by Grantor, Grantee and CDFG or their permitted successors or assigns.
(k) Exhibits. All Exhibits referred to in this Easement are attached and incorporated
herein by reference.
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con~ervation Easement Did .
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(I) Appropriations. The duty of'the City of poway and CDFG to carry out their
respective obligations under this Easement shall be subject to the availability of appropriate funds.
(ril) Effective Date. This Easement shall be effective upon recording with the San
Diego County Recorder's Office.
IN WITNESS THEREOF, Grantor and Grantee have entered into this Conservation Easement the
day and year first above written.
GRANTOR:
Charnan, LLC, Property Owners
By'
Approved as to Form:
Office of'theiCity Attorney
Ste'phen, M. Eckis y Attorney
M:\planning\peggy\mdra2002\mdra02.ao Charnan\MDRA02-80dfg Conservation Easement Deed.doc
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CERTIFICATE OF ACCEPTANCE
This is to Certify that the interest in real"property conveyed by the Conservation Easement by
Charnan, LLC, dated 12 -I-OJ to the City of Poway, Grantee, and to the California
Department of Fish and Game, ;as a.:third party beneficiary, a. governmental agency (under Government
CodeS,e,ction 27281), is hereby accepted by the undersigned o.fficer on behaif of the City of Poway,
pursuant to authority conferred by Resolution No. 34 of the City of Poway on January 20, 1981
GRANTEE. City of Poway
By,Jj01J1J(1~1 0 Q
. ShE;rri e D.Worr~~ Deputy City Clerk
Title: ~ AnneT'cwl..o, -c~ -lerk-
Authorized Representative
Date: 1 ?-Og-Ol
m:\planning\forms\environmental\dfg conservation easement deed,doc 5/02
8
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EXHIBIT A
BIOLOGICAL CONSERVATION EASEMENT
THAT CERTAIN AREAS SHOWN AS OPEN SPACE EASEMENT ON LOT 5 OF
CITY'OF POWAY TRACT NO. 98"02 HERITAGKRANCH ESTATES,
ACCORDING TO MAP NO. 14388, FILED IN THE OFFICE OF THE COUNTY
RECORDER.OF SAN DIEGO COUNTY, CALIFORNIA ON MAY 8, 2002, FILE
NUMBER 2002-0391382.
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EXHIBIT B
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CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT
State of Ce>..L tr- '^" <-
County of ~ '" '\)<'''-'10
On l:>e..UL~^ ~ I. ~'D i before me, G \) R'S), A-L <;;. ILL
Dare Name and Title of Officer (e.g., Jane Doe, Notary Public"1
personally appeared Q.I-\ I'ILLeS 3Etl-lo\! '11+ z.E. L-
Name(s) of Signer(s)
o personally known to me - OR - ~Ved to me on the basis of satisfactory evidence to be the person(s)
whose name(s@are subscribed to the within instrument
and acknowledged to me that!:fiillshe/they executed the
same ir@her/their authorized capacity(ies), and that by
:t-^"",...,.... ^ "^^^............^^( his/her/their sigmiture(s) on the instrument the person(s),
~ GURDIAL GILL or the entity upon behalf of which the person(s) acted,
~ l, '-: COMM. #1305216 ~
u! 1& t NOTARY PUBlIC-CALlFORN!A -I executed the instrument.
OJ ~ SAN DIEGO COUNTY en
) .......... My Comm Expires June 18. 2005 ( WITNESS my hand and official seal.
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Signature of Notary Public
OPTIONAL
Though the information below is not required by law, ;r may prove "!aluable 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 Document eO", -'::,e-.. v '" t:' 6"'- ~~.'fY'~\- D~1
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
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o Individual o Individual
o Corporate Officer o Corporate Officer
Title(s): Title(s):
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, o Attorney-in-Fact o Attorney-in-Fact
o Trustee o Trustee
o Guardian or Conservator o Guardian or Conservator
o Other' Top of thumb here o Other' Topol thumb here
Signer Is Representing: Signer Is Representing:
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C 1994 National Notary Associatioo. 8236 Remmet Ave., P.O. 80) 7184. Canoga PlIrio;, CA 91309-7164 Prod. No. 5907 Reorder; Call Toll-Free 1-800-876-6827