Biological Open Space Conservation Easement Deed 2001-0216033
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1111111I
I' 2001-0216033
DOC t2001-0216033
Recording Requested 'By-
CITY OF POWAY
Apr 10. 2001 8:18
!DJICIAL RErnRDS
SAN DIEGO COllNTV'RECOOlER'S OFfICE
liREGORV J, SMITH. ClIlMf'i RECORDER
FEES: 0.00
!IC: NA
3228
When recorded, mail to:
G,ity Clerk
CITY OF POWAY
Post Office Box 789
Poway, CA 92074"0789
SPACE ABOVE LINE FOR RECORDER'S USE ONLY
an ASSESSOR'S PARCEL NUMBER: 314-650-30
.~ BIOLOGICAL OPEN SPACE CONSERVATION EASEMENT DEED
~~ THIS BIOLOGICAL OPEN SPACE CONSERVATION EASEMENT DEED (hereinafter
V1:~onservation Easement Deed") IS made this 27th day of March ,20 QL by David Barto
nC and Katherine G Barto ("Grantor"), in...favor of the CITY OF POWA Y ("Grantee"). and in favor of the
V CALIFORNIA DEPARTMENT OF FISH AND GAME ("CDFG"), and the UNITED STATES FISH AND
WILDL."IFE SERVICE ("USFWS"), with reference to the following facts:
RECITALS
A. Grantor isthe 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" (legal description) and
Exhibit "B" (easement plat) allached hereto and incorporated by this reference (the "Properly") and;
B. The Property possesses wildlife and habitat values (colleclively, "conserVation
values") of great importance to Grantee pursuant to the adopted Cily of Poway Subarea Habitat Conservation
Plan/Natural Communily Conservation Plan ("poway HCP") and companion Implementing Agreement. and;
C The Property provides high qualily habitat for California Gnatcatchers and Rush,like
Bristleweed] and contains Granitic Chamise Chaparral and Coastal Sage Scrub habitals, and;
o In accordance with the adopted Poway HCP and companion Implementing
Agreement, this Conservation EasementDeed shall provide for the protection in perpetuity of the Property In
addition, the CDFG and USFWS are hereby identified and named as. co-beneficiaries of this Conservation
Easement Deed. The Department of Fish and Game has jurisdiction, pursuant to the Fish and Game Code
Section'c1802, overlne conservation, protection, and management offish, wildlife, native plants and the habitat
necessary for biologically suslainable populations of those species, and the Department of Fish and Game is
aulhorized.to hold easements forlhese purposes pursuant to Civil Code Section 815,3, Fish and Game Code
Section 1348, and other provisions of California law; and
E. This Conservation Easemenl Deecj provides compensation mitigation for certain
irnpacts of MDRA 98'39, a proposal to construct a single family residence ona 5'acre property located in the
City of Poway, County of San Diego. State of California, pursuant to the compensation miligalion ratios
established in the adopled Poway HCP and companion Implementing Agreement.
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COVENANTS; TERMS, CONDITIONS AND RESTRICTIONS
In consideration, of the above recitals and the mutual covenants, terms; condilions, and restrictions
containe~ herein, and pursuant'to'California law, including Civil Code Section 815, etseq., Grantor hereby
voluntarily deeds and conveys to Grantee a Conservation Easement Deed in perpeluity over the'Property
1 Purpose. The purpose of this Conservation Easement Deed is 10 ensure the Property will be
protected in perpetuity and retained forever in a natural bioiogical.open space condition and 10 prevent any
use of the Property that will significantly impair or interfere with the conservation vaiues of the Property
Grantor intends that this Conservation Easement Deed will confine the use of the Property to such activities,
including, without limitation, those involving'ihe preservation and enhancement of native species and their
habitat in a manner consistent with the habital conservation purposes of this Conservation Easement Deed.
2, Grantee's RiQhts. To accomplish the purposes of this Conservation Easement Deed. Grantor
hereby grants and conveys the following, rights to Grantee by this Conservation Easement Deed:,
(a) To preserve and protect in perpetuity the conservation values of the Property;
(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 Deed and for scientific
research and interpretive purposes by Grantee or its designees, provided that Grantee shall not unreasonably
inlerfere with Granlor's use and quiet enjoyment of the Property;
(c) To prevent any, activity on or use of the Property that is inconsistent with the purposes
of lhis Conservation Easement Deed and to require the restoration of such' areas or features of the Property
that may be damaged by any act, failure 10 act, or any use that is inconsistent with the purposes of this
Conservation Easement Deed;
(d) All mineral, air and water rights necessary to protect and 10 sustain the biological
resources of the Property; and
(e) Ali present and future development rights,
3. Prohibited Uses.. Any aclivity on or use of the Property inconsistenl wilh the purposl:Js of this
Conservation Easement Deed is prohibited. Without Iimiling the generality of the foregoing, the following uses
by Grantor, Granlor's agents, and third parties, are expressly prohibited:
(a) Unseasonalwatering, use of herbicides, rodenticides, or weed abatement activities.
incompatible fire protection activilies and any and all olher uses which may adversely affect the purposes of
this Conservation EasementDeed;
(b) Use of off-road vehicles;
(c) Grading or surface entry for exploration or extraction of minerals;
(d) Erecting of any building, billboard, sign;
(e) Deposiling of soil, trash, ashes, garbage, waste, bio-solids or any other material;
(f) Excavating, dredging or removing of loam, gravel, soil, rock, sand or other materiai;
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(g) Otherwise altering the general topographyoftheProperty, including building of roads;
(h) Removing, destroying. or cutting of trees, shrubs or other vegetation, except as
required'by law for (1) fire breaks,.(2)mainlenance of existing foot trails, City'approved recreational trails, or
roads, or (3) prevention or trealment of disease.
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 aclions to perfect Grantee's rights under Section 2 of this
Conservation Easement Deed, including but not limited to, Grantee's water rights.
5. Reserved Riqhls. Grantor reserves to itself, and to its personal representatives, heirs.
successors, and assigns, all rights"accruing from its ownership oflheProperty, including the rightto 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 Deed.
6. Grantee's Remedies. If Granlee determines that Grantor is in violalion of the terms ofthis
Conservation Easement Deed o(that a violation is threatened, Grantee shall give written notice to Grantor of
such violation and demand in writing .the cure of such violation. If Grantorfails to cure the violalionwithin
fifteen (15) days after receipt of said written notice and demand from Grantee, or said cure reasonably
requires more than fifteen (15) days to complete and Grantee fails to begir the cure within the fifteen (15) day
period or fails to continue diligently to complete the cure. Grantee may bring an action at law o~ in equity in a
court of competent jurisdiction t6,enforce compliance by Grantor wilh the terms of this Conservation Easement
Deed, to recover any damages 10 which Grantee.may be entiliedJor violation by Granlor of the terms'of this
Conservation Easement Deed, to enjoin the violation, ex parfe 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 otherequilable,relief, including, but not limited to, lherestoration of the Property to the
condition in which it existed prior' to any such violation or injury Wilhoutlimiting Grantor's liability therefor,
Grantee may apply any damages recovered to the cost of undertaking any corrective action on the Property
jf Grantee, in its sole discretion, determines that circumstancesTequire immediate action to prevent or
mitigate significant damage to the conservation values of the Property, Grantee may pursue jts remedies
under this paragraph without prior notice 10 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 EasementDeed. Grantor agrees lhat Grantee's remedies at law for any violation of the
lerms of this Conservation Easement Deed are inadequate and that Grantee shall be entitled to the injunctive
relief described in this section, both prohibitive and mandatory, in addition to such other reliefto which Grantee
may be entitled, including specific performance of the lerms of this Conservation Easement Deed, without lhe
necessity of proving either actual damages or the inadequacy of otherwise available legal remedies,
Grantee's remedies described in'thissection 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,inthe future Grantor or any subsequent transferee uses or threatens to use such lands
for purposes inconsistent with this Conservation ,Easement Deed, notwithsianding Civil Code Section 815.7,
the California Attorney General or any entity or individual with a justiciable interesl in the preservation of this
Conservation Easement Deed has standing as interested parties in any proceeding affecting lhis Conservation
EasementDeed.
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6.1 Costs,ofEnforcement. Any costs.incurred by Grantee in enforcing the terms of this
Conservalion.Ea_seme~.fQeed,againstGrantor, including, butnotlimited tb, costs of suit and atlorneys' fees.
and any costs of restoration necessitated by Grantor's violation or negligence under the terms of this
Conservalion Easement Deed shail be borne by Grantor
6.2 Grantee'sDiscretion. Enforcement of the terms of this Conservation Easement Deed
by Grantee shali be at the discretion ofGraritee, and any forbearance by Grantee to exercise ils rights under
this Conservation Easement Deed in the event of any breach of any termof this Conservation Easement Deed
by Grantorshali not be deemed or construed to be a waiver by Grantee of such term or of any.subsequent
breach,ofthe same or any olher.term,of this Conservation Easement Deed or of any of Granlee's rights under
this Cons",rvation 'Easement Deed. No delay or omission by Grantee in the exercise of any right or remedy
upon any breach by, Grantor shali impair such right or remedy or be construed as a waiver
6.3 Acts Beyond,Grantor's Control. Nothing contained in this Conservation Easemenl
Deed shali be conslrued to entitle GranteeJo bring any aclion against Grantor for any injury to or change in
the Property resulting from causesbeyond'Grantor's controi. including, without limitation, fire. fiood, storm. and
earth movement..or from any prudent action laken by Grantor under emergency conditions to prevent, abate,
or mitigate significant injury to the 'Property resulting from such causes.
6.4 Departmeril of Eish and Game Riqht of Enforcement. All rights and remedies
conveyed to Grantee under this Conservalion Easement Deed shali extend to and are enforceable by the
Department of Fish and Game.
7 Metal Fence Stake Instaliation and Maintenance. In order to identify and demarcate the
boundaries of the ConservatioriEasement Deed area (Property)within (specify APN or map andlotnumber) ,
the Grantor shali instali and maintain metal fence slakes (T-stakes painted while) six (6) feet in height [2 feet
beiow grade and 4 feet exposed above grade] as foliows: A stake shali beinstalied at the property line at the
point of intersection with the easement boundary line and alsoinstalied at intervals of seventy-five (75) feet
along the length of the easementbounda,ry line. The purpose of this staking is to identify,tothe iot owner the
boundaries of the conservation easement area, and to protect in perpetuity the conservation values and
function of the Property The specific'location of ali required stakes shali also be plotled on Exhibit "B"
(easement piat) atlached hereto.
8. Access. This Conservation Easement Deed does not convey a general right of access to the
public.
9 Costs and liabilities. Grantor retains ali responsibilities and shali bear ali costs and
liabilities of any kind related ,to the ownership, operation, upkeep. and maintenance of the Property
9 1 Taxes. Grantor shali pay before delinquency all taxes. assessments, fees, and
charges of whalever description levied on or assessed against the Property by competent authority
(coiiectively "taxes"), including any taxes imposed upon, or incurred as a result of, this Conservation
Easement Deed, and shali furnish Grantee with satisfactory evidence of payment upon request.
92 Hold Harmless. Grantor shali hold harmless, indemnify, and defend Grantee and its,
directors, officers, employees, agents, contractors, and representatives (colieclively "Indemnified Parties")
from and against ali liabililies, penalties. costs, losses, damages, expenses, causes of action. claims,
demands, or judgments, including without limitalion, reasonable atlorneys' fees. arising fromor In any way
connected with: (1) injury to orthe dealh of any person, or physical damages to any property. resulting from
any act, omission, condition, or other matter related to or occurring on or aboul the Property. regardless of
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cause. unless due,lo ih.enegligence of any of the Indemnified Parties; (2) the obligations specified in Sections
4,9, and 9 1; and'(3) the existence or ad"ministration'ofthis Conservation Easement Deed.
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9;3 Condemnation. The purposes of the Conservation Easement Deed are presumed to
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be the best and most 'necessary public use as defined at Civil Procedure Code Section 1240,680
notwithstanding Civil"Procedure Code, Sections 1240.690 and 1240.700,
10. Assiqnment. This Conservation Easement Deed is transferable. bul Grantee may assign its
rights arid. obligations under this'Conservalion Easement Deed only 10 an entity or organization authorized to
acquire and hold conservalion easemenls pursuant 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 Conservalion
EasemehtDeed in any deed or otherlegal 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 of the intent to transfer of any interest alleast fifteen:(15) days prior to the date of such
lransfer Grantee shall'have:lhe;righttoprevent subsequent'transfers in which prospective subsequent
claimants or transferees are not given notice of lhe covenanls, terms, conditions and restrictions of this
Conservation Easement Deed. The failure of Grantor or Grantee to perform any act provided in this'section
shall not impair the validity ofthis:Conservation Easement Deed or limit its enforceabilily in any way
12. Notices. Any notice, del11and, request, consent, approval. or communication thai either party
desires or is required to give to the,olher shall be in writing and be served personally or sent by first class mail,
postage prepaid, addressed as follows:
To Grantor'
David and Katherine Barto
14825 Midland Road
Poway, CA 92064
To Grantee:
City of Poway
City Manager
13325 Civic Cenler Drive
Poway, CA 92064
To Co-Beneficiaries:
Department of Fish and Game
Legal Affairs Division
1416 Ninth Street, 12th Floor
Sacramento. CA 95814~2090
Department of Fish and Game
South Coast Region
4949 Viewridge Avenue
Sari Diego, CA 92123
Attn: Regional Manager
U,S. Fish and Wildlife Service
2730 Loker Avenue West
Carlsbad, CA 92008
Attn: General Counsel
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or to such'other a.d(jress as either party shall designate by written notice to the other Notice shall be deemed
. effective upon'deliv~ryin the'case of personai delivery or, in the case of , delivery by first class mail, five (5)
days afterdepositihlo theUniled States mail. >>
13. ExtinQuishment. This Conservation Easement Deed may be extinguished by Grantor and
Grantee by mutual written agreementupon the request of either party only after the requesting.party acquires
and records a perpetual conservation easement in the name of the Stale of California Department ofFish and
Game at an alternative location, which provides conservation values lhatsatisfy the specific mitigation
purposes of this Conservation EasementDeed as stated in Paragraph E of recitals above.
14 Amendment. This Conservation Easement Deed'may be amended by Granlor and Grantee
by mutual written agreement. Any such amendment shall be consistenl with the purposes of this Conservation
Easement Deed and, except aS,provided in Section 13, shall not,affect its perpetual duration" Any such
amendmentshall be recorded in the official records of San Diego County, State of California.
15, General Provisions.
(a) ControllinQLaw The interpretation and performance of this Conservation Easement
Deed shall be governed by the laws of the City of Po way and the State of California,
(b) Liberal Conslruction. Any general rule of construction to the contrary notwithstanding,
this Conservation Easement Deed,shallbe liberally construed inlavor oflhe deed to effect the purpose of this
Conservation Easement Deed and the policy and purpose Civil Code:Section815, et seq If any provision in
this instrument is found 10 be ambiguous, an interpretation consistent with the purposes of this Conservation
Easement Deed that would render the provision valid shall be favored over any interpretation that would
render it invalid.
(c) Severability If a court of competentjurisdii::tion yoids or invalidates on itsface any
provision of this Conservation EasementDeed, such action shall not affect the remainder of this Conservation
Easement Deed. If a court of cbmpetentjurisdiction voids or invalidates lhe applicalionof any provision of this
Conservalion Easement Deed to a.person,or circumstance. such action shall not affect the application of the
provision to other persons or circumsiances,
(d) Entire AQreement This instrumenl sets forth the entire agreement of the parties with
respect to the Conservation Easement Deed and supersedes all prior discussions, negotiations.
underslandings, or agreementsrelatirig to the Conservation Easement Deed. No alteration or variation of this
instrument shall be valid or binding unless conlained in an amendment in accordance with Section 14
(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, condilions,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
(g) Terminalion of RiQhts and Obliqations. A party's righls and obligations under this
Conservation Easement Deed terminate upon transfer of the party's interesl in lhe Conservation Easement
Deed or Property, except that liability for acts or omissions occurring prior to transfer shall survive transfer
(h) Caotions The captions in this instrument have been inserted solely for convenience
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of referenceandarenoi apart of this instrument and'shall have no effect upon construction or interpretation.
(I) Counterparts. The parties may execute this inslrument in two or more counterparts.
which shall, in the aggregate, be signed by both parties:'each counterpart shall be deemed an originai
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.
IN WITNESS WHEREOF Grantor and Grantee have entered inlo this Conservation Easement Deed
the day and year first above writlen.
GRANTOR:
David and Katherine Barto
14825 Midland Road
Poway, CA 92064
Approved as to form:
~a<(/iU.
David Bart,9 (Grantor)
BY
Niall Fritz, Dire r of
City of Poway, Grantee
BY
-/:fJL~ J I(~h
Katherine G Barto (Grantor)
CERTIFICATE,OF REGISTERED CIVil ENGINEER
ORPROFESSIONAl lAND SURVEYOR
This is to certify that the Conservation Easement Deed area (Property), as described in Exhibit "A"
and Exhibit "B" atlached hereto,and the current title report for the subject Assessor's parcel number first
written above have been concurrently reviewed by the Slate of California registered civil engineer or
professionalland surveyor that prepared Exhibil "A" and Exhibit "B" Based on this review, it is further certified
that the Property is free and clear of any other encumbrances 'or senior easement rights.
CERTIFIED BY WAY N E: S T U r 2-M,J:), N ~GE:...
TiTLE. oWf..!6- - wAYf-..IE STUT'Z-I.-1AI-J
DATE. 3/20 (0 I
7
CALlFORNIA,ALLoPURPol ACKNOWLEDGMJN~3 5 ·
State of G-t \ I~n I 0....
County of SAn CJ if'S 0
On fY\N(h;J..7,~DI
Dale
personally appeared '\")A U\ c:\
I? bi,e
before me,She
Name and Title of Officer (e.g..
An~ t"M-f'lf'rine C::;, BAc+6
Name(s} of Signer(s)
Public")
D poreell ,ally IlP^,^,n In m'3 - OR - E;iliJroved to me on the basis of,satisfactory evidence to be the persorl(S)
whose na~.w6>subscrjbed to the within instrument
and acknowledged to me that ~executed the
same in t.is.ll:ler/~uthorizedcapacit~nd that by
~~signatur~on the instrument the pjl,rson:(S).
or the entity upon behalf of which the persor4s) acted,
executed the instrument.
Jij - -S:EIl;;E;,,;o;si,"~f
_ Commission # 122:1)93 ,
~. Notay Public - cofifcmiQ I
j San Diego countYf
MyComm. Expi'es .It.n3l,~
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WITNESS my hand and official seal.
~~
, Signature 01 Notary Public
OPTIONAL
Though the information below is not.required by law, it may prove valuable to persons relying on the dociJment and could prevent
fraudulent removal and reattachment ofthis form to 'another document.
Description of Attached Document
Title or Type of Document: ~"9f L'--"" 0 OfJ-CM' ~.~ ' ~ t::wopl
Document Date: rV\o. ec%> .0l7 I eJ.-OD I Number of Pages: J 0
Slgner(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
D Individual
D Corporate Ofll
Title(s):
D Partner - D Limite
D Attorney-In-Fact
D Trustee
D Guardian or Conservator
D Other'
Signer Is Representing:
D In . idual
D Corp ate Officer
Title(s):
D Partner - Limited D General
D Attorney,in-Fa
D Trustee
D Guardian or Conserv
D Other" Top of thumb here
RIGHT THUMBPRINT:
OF SIGNER
Signer Is Representing:
@1994 National Notary Association. 8236 Remmel Ave.. P,O. Box 71B4. Canoga Park, CA 91309-7184
Prod. No. 5907
Reorder: Call Toll-Free 1.800 876 6827
i'"
MICKEY CAFAGNA. May"l'
JAY GOLDBY. Deputy May",
BOB EMERY ,LuuociloH:mbel
DON HIGGINSON, Cnuncilmember
BETTY REXFORD, Conocilmember
t::ITY OF POWAf
3236
CERTIFICATE OF ACCEPTANCE
This is to certify that the interest in real property conveyed by this Conservation
Easement Deed by David and Katherine G. Barto, Grantors, dated March 27, 2001,
to the City of Poway, Grantee, is hereby accepted by the undersigned officer on behalf
of the City of Poway, and on behalf of the California Department of Fish and Game and
the United States Fish and Wildlife Service as co-beneficiaries of this Conservation
Easement Deed
GRANTEE.
CITY OF POWAY
BY
~~~~
TITLE.
Lori Anne Peoples. City Clerk
Authorized Representative
DATE.
March 29, 2001
Revised January 2,2001
N:ICITY\PLANNINGIFORMS\HCPMIT,CED
City Hall Located at 13325 Civic Center Drive
Mailing Address: PO Box 789, Poway, Calilornia 92074-07890 (858) 748-6600,695-1400
@1""'[OO"'>I"'C"."''''I'31'' FAX 748-1455
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EXHIBIT "A"
OPEN SPACE E~~EMENT
LEGAL DESCRI PTI ON
(APN# ,314~650~30)
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THE 'SOUTHERLY 155,76 FEET OF 1'HE FOLLOWING ,DESCRIBED' :PROPERT,YI'
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+.
THE SOUTHERLY 660.,6,Q FEET OFTHEiWESTEfll y .3~(), Q.o FEET" OF 'TH,E '" ,.
NORTHWEST QUARTER OF THE' ',SOUTHEAST QUARTER OF, SECnON 1,T,OWNS.HIP
14 SOUTH, RANGE 2 WEST, SAN BERNARDINO 'BASE'AND MERiDIAN, 'IN THE
,.JCITiY'Oi=' I;>OWAV, COUNTY OF SAN' DIEGO, STATE OF CALIFORNIA,'
ACCORDING to UNITED STATE!:i, GOVERNMENT Sl!RVI;Y APPROVED NOVEMBER"
19TH, 1880.
-.} ,~~.
PREPARED BY: WAYNE STUTZMAN" R.C.E., 33.598
,DATE',:' MARCH 20, 2001
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