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Conservation Easement Deed 2000-0230346 Recording Request By ) ) CITY OF POWAY ) ) 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 ... ). :. . DOC '2000-0230346 " 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. . . 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: . . (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 . . 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. . . 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 . . 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. . . (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. ',' . . 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 ~ 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 .. . . 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 fuiJlw , li.,-~:~~~~~-f 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 :J'. Reorder: Call TOil-Free 1-800-876-6827 :. . . 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. . EXHIBIT B . ~ I" "- N~ ~ ~ ?4~CEt: .3 /f/' O'~" Z6'.3't1 n W -//~ /3' ' ~ ~ , ~ ~ , 'J ~ " ,Ph';f"CE~ 2 ~ ~ I ~ ~ , PH /50.94- ill , I:J ~ P/1~. 1l A"W , J'v .5 17" .5/ .3'4Z.l0 ' /?1,RCcL. /