Conservation Easement Deed 2000-0230346
Recording Request By )
)
CITY OF POWAY )
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When Recorded Mail to: )
l;'v CITY CLERK ~
If\\ CITYOFPOWAY )
^ ,,1\ PO BOX 789 )
I (!fl" POWAY, CA 92704-0789 )
tJr rJl1' ~
t/.) Assessors Parcel Number 275-240-67
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DOC '2000-0230346
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May 04, 2000 8:18
AM
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
GREGORY J. SMITH, COUNTY RECORDER
FEES: 0.00
OC: NA
(This space for Recorder's Use)
CONSERVATION EASEMENT DEED
THIS CONSERVATION EASEMENT DEED is made this ,f-rtf- day of
~'f , 2000 by Dave Shifflet and Catherine A, C. Shifflet, Husband and Wife as
Tenants in Common, ("Grantor"): in favor of CITY OF POW A Y ("Grantee"), a municipal
corporation, for the benefit of Grantee, and in favor of the California Department ofFish and Game
and the U. S. Fish and Wildlife Services, with reference to the following facts:
RECITALS
A. Grantor is the sole owner in fee simple pf certain real property in the County
of San Diego, State of California, more particularly described in Exhibit A and depicted in Exhibit
B (Conservation Easement legal description and 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 Grantee, and the people of the State of California;
C. The Property provides high quality native plant habitat including Diegan
Coastal Sage Scrub and Oak Woodland; and
D. The Department ofFish and Game has jurisdiction, pursuant to the Fish and
Game Code Section 1802, over the conservation, protection and management of fish, wildlife, native
plants, and the habitat necessary for biologically sustainable populations of those species.
E. This Conservation Easement provides mitigation for certain impacts resulting
from Minor Development Review 99-63, the construction of a single family residence on the
property located at 15730 Bowl Creek Road, located in the City of Po way, County of San Diegp.
Pursuant to the adopted Poway Subarea Habitat Conservation Plan/Natural Communities
Conservation Plan.
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F. The City of Poway is authorized to hold Conservation Easements for the
preservation ofland in its natural, historic, agricultural, forested, or open space condition pursuant
to Civil Code Section 815.3.
COVENANTS. TERMS. CONDITIONS AND RESTRICTIONS
In consideration of the above recital and mutual covenants, terms, conditions, and restrictions
contained herein, and pursuant to California law, including Civil Code Section 815, et seq., Grantor
hereby voluntarily deeds and conveys to Grantee a conservation easement in perpetuity over the
Property.
1. PUlJlOse. The purpose of this Conservation Easement is to ensure the Property will
be retained forever in a natural condition and tp prevent any use of the Property that will
significantly impair or interfere with the conservation values of the Property. Grantor, intends that
this Conservation Easement will confine the use of the Property to such activities, including without
limitation, those involving the preservation and enhancement of native species and their habitat in
a manner consistent with the habitat conservation purposes of this Conservation Easement.
2. Grantee's Rights. To accomplish the purposes of this Conservation Easement,
Grantor hereby grants and conveys the following rights to Grantee and the State of California,
Department ofFish and Game, as a third party beneficiary of this Conservation Easement Deed:
(a) To preserve and protect 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 and for scientific research and interpretive purposes by Grantee or
its designees, provided that Grantee shall not unreasonably interfere with
Grantor'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 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 to sustain the
biological resources of the Property; and
(e) All present and future development rights.
3. Prohibited Uses. Any activity on or use ofthe Property inconsistent with the purposes
of this Conservation Easement is prohibited. Without limiting the generality of the foregoing, the
following uses by Grantor, Grantor's agents and third parties, are expressly prohibited:
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(a) Unseasonal watering, use of herbicides, rodenticides, or weed abatement
activities, incompatible fire protection activities and any and all pther uses
which may adversely affect the purposes of this Conservation Easement;
(b) Use of off-road vehicles;
(c) Grazing or surface entry for exploration or extraction of minerals;
(d) Erecting of any building, billboard, sign;
(e) Depositing of soil, trash, ashes, garbage, waste, bio-solids or any other
material;
(I) Excavating, dredging or removing ofloam, gravel, soil, rock, sand or other
material;
(g) OtheIWise altering the general topography ofthe Property, 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) maintenance of existing foot trails
or roads, or (3) prevention or treatment 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 hann the conservation
values of the Property. In addition, Grantor shall undertake all necessary actions to perfect Grantee's
rights under Section 2 of this Conservation Easement, including but not limited to, Grantee's water
rights.
5. Reserved Rights. Grantor reserves to itself, and to its personal representatives, heirs,
successors, and assigns, all rights accruing from its ownership of the Property, including the right
to engage in, or to pennit, or invite others to engage in all uses of the Property that are consistent
with the purposes of this Conservation Easement.
6. Grantee's Remedies. If Grantee detennines that Grantor is in violation of the tenns
of this Conservation Easement or 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 Grantor fails to cure
the violation within 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 Grantor fails to begin
the cure within the fifteen (15) days period or fails to continue diligently tp complete the cure,
Grantee may bring an action at law or in equity in a court of competent jurisdiction to enforce
compliance by Grantor with the tenns of this Conservation Easement, to recover any damages tp
which Grantee may be entitled for violation by Grantor of the tenns of this Conservation Easement,
to enjoin the violation, ex parle as necessary, by temporary or pennanent 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, the restoration of the Property to the
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cpnditipn in which it existed prior to any such violation or injury. Without limiting Grantor's
liability therefor, Grantee may apply any damages recovered to the cost of undertaking any
corrective action on the Property.
If Grantee, in its sole discretion, determines that circumstances require immediate action to
prevent or mitigate significant damage to the conservation values of the Property, Grantee may
pursue its remedies under this paragraph without prior notice to Grantor or without waiting for the
period provided for cure to expire. Grantee's rights under this paragraph apply equally to actual or
threatened violations of the terms of this Conservatipn Easement. Grantor agrees that Grantee's
remedies at law for any violatipn of the terms of this Conservation Easement are inadequate and that
Grantee shall be entitled to the injunctive relief described in this sectipn, both prohibitive and
mandatory, in addition to such other relief to which Grantee may be entitled, including specific
performance of the terms of this Conservation Easement, without the necessity of proving either
actual damages or the inadequacy of otherwise available legal remedies. Grantee's remedies
described in this section shall be cumulative and shall be in addition to all remedies now or hereafter
existing at law or in equity, including but not limited to, the remedies set forth in Civil Code Section
815, et seq., inclusive.
If at any time in the future Grantor or any subsequent transferee uses or threatens to use such
lands for purposes inconsistent with this Conservation Easement, notwithstanding Civil Code
Section 815.7, the California Attorney General or any entity or individual with a justiciable interest
in the preservation of this Conservation Easement has standing as interested parties in any
proceeding affecting this Conservation Easement.
6.1 Costs of Enforcement. Any costs incurred by Grantee in enforcing the terms
of this Conservation Easement against Grantor, including, but not limited to, costs of suit and
attorneys' fees, and any costs of restoration necessitated by Grantor's violation pr negligence under
the terms of this Conservation Easement shall be borne by Grantor.
6.2 Grantee's Discretion. Enforcement of the terms of this Conservation
Easement by Grantee shall be at the discretion of Grantee, and any forbearance by Grantee to
exercise its rights under this Conservation Easement in the event of any breach of any tenn of 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 of Grantee's rights under this Conservation Easement. No delay or omission by Grantee
in the exercise of any right or remedy upon any breach by Grantor shall impair such right or remedy
or be construed as a waiver.
6.3 Acts Beyond Grantor's Control. Nothing contained in this Conservation
Easement shall be construed tp entitle Grantee to bring any action against Grantor for any injury to
or change in the Property resulting from causes beyond Grantor's control, including, without
limitation, fire, flood, storm, and earth movement, or from any prudent action taken by Grantor
under emergency conditions to prevent, abate, or mitigate significant injury to the Property resulting
from such causes.
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6.4 Department ofFish and Game Right of Enforcement. All rights and remedies
conveyed to Grantee under this Conservation Easement Deed shall extend to and are enforceable by
the Department ofFish and Game.
7. Fence Installation and Maintenance. The Grantor shall construct and maintain in
perpetuity a perimeter fence at the interface between the conservation easement boundary and the
area proposed for the development of a single-family home located at the easterly edge of the
property and south of West view Road. The purpose of the perimeter fence shall be to preclude
disturbance of the sensitive habitat within the adjacent conservation easement area and to limit
access of humans and domestic animals. The specific location and type of the required perimeter
fence shall be determined by the City of Poway Development Services Department in consultation
with the Poway Fire Marshal at the time the Grantor submits an application to develop the proposed
homesite. The perimeter fence shall be installed priar to the City's issuance of a clearing and/or
grading permit for the development of the proposed homesite.
8.
public.
Access. This Conservatipn Easement does not convey a general right of access to the
9. Costs and Liabilities. Grantor retains all responsibilities and shall bear all costs and
liabilities of any kind related to the ownership, operation, upkeep, and maintenance of the Property.
9.1 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"), including any taxes imposed upon, or incurred as a result of this Conservation
Easement, and shall furnish Grantee with satisfactory evidence of payment upon request.
9.2 Hold Harmless. Grantor shall hold harmless, indemnify, and defend Grantee and
California Department of Fish and Game, and their directors, officers, employees, agents,
contractors, and representatives (collectively "Indemnified Parties") from and against all liabilities,
penalties, costs, losses, damages, expenses, causes of action, claims, demands, or judgments,
including without limitation, reasonable attorneys fees, arising from or in any way connected with:
(I) injury to or the death of any person, or physical damages to any property, resulting from any act,
omission, condition, or other matter related to or occurring on or about the Property, regardless of
cause, unless due to the negligence of any of the Indemnified Parties; (2) the obligations specified
in Sections 4,9, and 9.1; and (3) the existence or administration of this Conservation Easement.
9.3 Condemnation. The purposes of the Conservation Easement are presumed to be the
best and most necessary public use as defined at Civil Procedure Code Section 1240.680
notwithstanding Civil Procedure Code Sections 1240.690 and 1240.700.
10. Assignment. Grantee may assign its rights and obligations under this Conservation
Easement only to an entity or organization authorized to acquire and hold conservation easements
pursuant to Civil Code Section 815.3 and only with prior written consent of the California
Department ofFish and Game. Grantee shall require the assignee to record the assignment in the
county where the property is located.
II. Subseauent Transfers. Grantpr agrees tp incorporate the terms pfthis Conservation
Easement in any deed or other legal instrument by which Grantor divests itself of any interest in all
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or a portion of the Property, including, without limitation, a leasehold interest. Grantor further
agrees to give written notice to Grantee ofthe intent to transfer any interest at least fifteen (IS) 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 enforceability in any way.
12. Notices. Any nptice, demand, request, consent, approval or communication that
either party desires or is required to give to the other shall be in writing and be served personally or
sent by first class mail, postage prepaid, addressed as follows:
To Grantor: Dave and Catherine Shifflet
650 Cantara Lane
Vista, CA 92083
To Grantee: City of Po way
City Manager
Civic Center Drive
PO Box 789
Poway, CA 92074-0789
With copies to: California Department ofFish and Game
Sputh Coast Region
4949 Viewridge Avenue
San Diego, CA 92123
Attn: Regional Manager
and U. S. Fish and Wildlife Service
2730 Loker Avenue West
Carlsbad, CA 92008
Attn: General Counsel
or to such other address as either party shall designate by written notice to the other. Notice shall
be deemed effective upon delivery in the case of personal delivery or in the case of delivery by first
class mail, five (5) days after deposit into the United States mail.
13. Amendment. This Conservation Easement may be amended by Grantor and Grantee
by mutual written agreement. Any such amendment shall be consistent with the purposes of this
Conservatipn Easement and, except as provided in Section 13, shall npt affect its perpetual duratipn.
Any such amendment shall be recorded in the official records of San Diego County, State of
California.
14. General Provisions.
(a) Controlling Law. The interpretation and performance of this Conservation Easement
shall be governed by the laws ofthe State of California.
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(b) Liberal Construction. Any general rule of construction to the contrary
notwithstanding, this Conservation Easement shall be liberally construed in favor
of the deed to effect the purpose of this Conservation Easement and the pplicy and
purpose of Civil Code Section 815, et seq. If any provision in the instrument is
found to be ambiguous, an interpretation consistent with the purposes of this
Conservation Easement that would render the provision valid shall be favored over
any interpretation that would render it invalid.
(c) Severability. If a court of competent jurisdiction voids or invalidates on its face any
provision of this Conservation Easement Deed, such actipn shall not affect the
remainder of this Conservation Easement Deed. If a court of competent jurisdiction
voids or invalidates the application any provision of this Conservation Easement to
Deed to a person or circumstance, such action shall not affect the application ofthe
provision to other persons or circumstances.
(d) Entire AIITeement. This instrument sets forth the entire agreement ofthe parties with
respect to the Conservation Easement and supersedes all prior discussions,
negotiations, understandings or agreements relating to the Conservation Easement.
No alteration or variation of this instrument shall be valid or binding unless contained
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, conditions, and restrictions of this Conservation
Easement Deed shall be binding upon, and inure to the benefit of, the parties thereto
and their respective personal representatives, heirs, successors, and assigns and shall
continue as a servitude running in perpetuity with the Property.
(g) Termination ofRi~hts and Obligations. A party's rights and obligations under this
Conservation Easement terminates upon transfer of the party's interest in the
Conservation Easement or Property, except that liability for acts or omissions
occurring prior to transfer shall survive transfer.
(h) Captions. The captions in this instrument have been inserted solely for convenience
of reference and are not a part of this instrument and shall have no effect upon
construction or interpretation.
(i) Counterparts. The parties may execute this instrument in two or more counterparts,
which shall, in the aggregate, be signed by parties; 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.
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IN WITNESS WHEREOF Grantor and Grantee have entered into this Conservation
Easement the day and year first above written.
GRANTOR:
Approved as to form:
DA VE AND CATHERINE A.
SHIFFLET
C.
BY:
~ffJ.4f#I
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Catherine A. C. ~.
BY: #~1~
Niall Fritz,
Director of Development Services
BY:
CERTIFICATE OF ACCEPTANCE
This is to certify that the interest in real prop,2 conveyed by this Conservation
Easement Deed by Dave and Catherine A. C. Shimet, dated kd~ i ' 2000
to the City of Po way, Grantee, is hereby accepted by the undersigned offi er on behalf of the City
of Po way.
GRANTEE:
CITY OF POW A Y
B.
Title: L ri Anne Peoples, City
Authorized Representative
Date: ~~ 3 , 2000
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CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT
,~ ~A;X'.c<',O"..c<.'~~~~~.c<',.c('.c<'..c<'"..cx'".c<'..ot'.cc..cc:Y.
,
State of California
} ss.
County of ~'&J ~
On ~.,,'" (},,()()U, before me, ~dT..ofOffi~'.. "J.~Doe,NO~"'P"~; )
personally appeared ~ .h'JJ.JdJ. tM.L ~~ A.C. 5n.wk:{
rpf\.olVVV Name(s)of Signer(s) fjp-
o personally known to me
P5 proved to me on the basis of satisfactory
evidence
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,
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i Notay I'l.tlIIc - ColIfaOO ~
j _ _ _ _Mr~,~,:~~t
to be the person(s} whose name(s) i~
subscribed to the within instrument and
acknowledged to me that he/she~xecuted
the same in his/herlflijffi) authorized
capacity(ies}, and that by his/he'~
signature(s} on the instrument the person(s), or
the entity upon behalf of which the person(s}
acted, executed the instrument.
Place Notary Seal Above
WITNESS my hand and official seal.
~~P"~;'
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached D9fument -:- . C, , _,(). I
Title or Type of Document: ~ ~ ~
Document Date:
d..-'f-w
Number of Pages:
~~p~
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
Sigjli'r's Name:
(2'" Individual
o Corporate Officer - Title(s):
o Partner - 0 Limited 0 General
o At/orney in Fact
o Trustee
o Guardian or Conservator
o Other:
Top or thumb here
Signer Is Representing:
@ 1997 National Notary Association' 9350 De Solo Ave.. P.O. Boll 2402 . Chatsworth, CA 91313-2402
Prod. No_ 5907
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Reorder: Call TOil-Free 1-800-876-6827
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EXHIBIT A
A portion of land lying within Parcel 2 of Parcel Map 15094, in the City of Poway, in the County of
San Diego, State of California, filed in the Office of the County Recorder of Said County on December
31, 1987 as File No. 87-718977 of Official Records, described as follows:
Beginning at the Southwesterly comer of said Parcel 2 ; thence along the westerly line of Parcel 2 North
36021' 44" West 187.14 feet; thence North 600 DO' 00" East 82.00 feet; thence South 41000' 00" East
110.00 feet; thence South 3054' 16" East 100.28 feet to the Southerly line of Parcel 2; thence South
77031' 30" West 40 feet to the Point of Beginning.
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EXHIBIT B
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