Conservation Easement Deed 2010-0301736RECORDING REQUESTED BY:
CITY OF POWAY
WHEN RECORDED MAIL TO:
CITY CLERK
n
CITY OF POWAY
I'
P O BOX 789
Njr-
POWAY, CA 92074 -0789
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�U n APN: 277 - 020 -18
' 1 PROJECT NUMBER: TENTATIVE PARCEL MAP 09 -02
D V C # 2010 7jG
11 II1 II II
JUN 16, 2010 10:16 AM
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
DAVID L. BUTLER, COUNTY RECORDER
FEES: 0.00
OC: NA
PAGES: 11
Space Above Line for Recorder's Use Only
CONSERVATION EASEMENT DEED
No Documentary Transfer Tax Due
THIS CONSERVATION EASEMENT DEED is made this � day of 2010, by
Sabin Children's Foundation ( "Grantors "), in favor of City of Poway ( "Grantee'), acting by a d 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 this reference (the "Property ").
B. The Property possesses wildlife and habitat values (collectively, "conservation values ") of
great importance to the Grantee, the people of the City of Poway, the people of the State of California, and
the people of the United States.
C. The Property provides high quality Coast 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.
Conservation of this property therefore will preserve habitat of a protected species.
D. The City of Poway is authorized to hold conservation easements 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 pursuant to California Civil Code Section 815.3(b).
E. The State of California, by and through its Department of Fish and Game (CDFG), has
jurisdiction, pursuant to CDFG 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.
F. The United States Fish and Wildlife Services (USFWS) has jurisdiction over the
conservation, protection, restoration, enhancement 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. Sections 661 -666c and other applicable laws.
G. This Conservation Easement provides protection for 4 acres of land that contains Coastal
Sage Scrub located within the City of Poway's Subarea Habitat Conservation Plan /NCCP Focused Planning
Area.
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
contained herein in exchange for Grantee permitting Grantor's removal of 2 acres of Coastal Sage Scrub.
I a -GS8%
Conservation Easement Deed
Page 2
I. 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, 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 of the
nature and character and to the extent hereinafter set forth ( "Easement').
1. Purpose 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 that 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 and their habitat in a manner consistent with the habitat
conservation purposes of this Conservation Easement.
2. Rights of Grantee To accomplish the purposes of this Conservation Easement, Grantor
hereby grants and conveys the following rights to Grantee and the State 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 perpetuity the conservation values of the Property in
accordance with this easement,
(b) To enter upon the property at reasonable times in order to monitor Grantor's
compliance with, and to otherwise enforce the terms of, this 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
(e) To enforce by means including, injunctive relief, the terms and conditions of the
Easement.
3. Prohibited Uses Any activity on or use of the Property inconsistent 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 protection activities and any and all other uses 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;
Conservation Easement Deed
Page 3
(d) Erection of any building, billboard, or sign;
(e) Excavating, dredging or removing of loam, gravel, soil, rock, sand or other material;
(f) Otherwise altering the general topography of the Property, including building of
roads or changing the grade of the Property;
(g) Removing, destroying, or cutting of trees, shrubs, or other vegetation, except as
required by law for (1) firebreaks, (2) maintenance of existing foot trails or roads, or (3) prevention or
treatment of disease;
Poway
(h) Planting of trees or other vegetation except by written permission from the City of
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 actions to protect Grantee's rights under Section
2 of this Conservation Easement. Grantor further covenants that maintenance of the Property, to wit: clean
up of all trash and debris, shall be the Grantor's responsibility.
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 permit 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 determines that Grantor is in violation of the terms of this
Conservation Easement or that a violation is threatened, Grantee shall give written notice to Grantor of such
violation and demand in writing corrective action sufficient to cure the violation. 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 complete and Grantor fails to begin the cure within the thirty (30) day period or fails to continue
diligently to complete the cure, Grantee may bring an action at law or in equity in a court of competent
jurisdiction to enforce the terms of this 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, the restoration of the Property to the condition in which it existed prior to any such violation or
injury. Without limiting Grantor's liability therefore, Grantee may apply any damages recovered to the cost of
undertaking any corrective action on the Property.
If Grantee, in its sole discretion, 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 Conservation Easement. Grantor and Grantee agree that Grantee's remedies for any violation
of the terms of this Conservation Easement is the injunctive relief described in this section, 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 in each case, 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.
Conservation Easement Deed
Page 4
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 third -party entities organized for conservation purposes have
standing as interested parties in any proceeding affecting this Conservation Easement 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' fees, and any costs of restoration necessitated by Grantor's violation or 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 or CDFG shall be at the discretion of Grantee 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 of the Grantee's rights under this Conservation 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 remedy or be construed as a waiver.
6.3. Acts Beyond Grantor's Control Nothing contained in this Conservation Easement
by Grantee shall be at the discretion of Grantee and CDFG to bring any action against Grantor for any injury
or 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. Department of Fish and Game Riqht of Enforcement. All rights and remedies
conveyed to Grantee under this Conservation Easement Deed shall extend to and are enforceable by the
Department of Fish and Game or USFWS.
6.5. Fence Installation and Maintenance Grantor shall install and maintain a fence
between the approved development area of the parcel and the Conservation Easement Deed area to protect
in perpetuity the conservation values and function of the Property. The type of fencing shall also include
posts and signage. The Grantor shall obtain approval by the Grantee's Director of Development Services
regarding the specific location, type, and height of the fence and signs prior to their installation.
7. Property Management and Maintenance Grantor and its successors shall maintain the
Property in accordance with the terms and 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 respective
designees of Grantee and CDFG.
9. Costs and Liabilities Grantor retains all responsibilities and shall bear all costs and liabilities
of any kind including transfer costs, costs of title and documentation review, and costs related to the
ownership, operation, upkeep, and maintenance of the Property.
9.1. Taxes. Grantor 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 and CDFG with satisfactory evidence of payment upon request.
Conservation Easement Deed
Page 5
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 attorneys' fees, arising 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, 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 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 Code of Civil Procedure Section 1240.680
notwithstanding Code of Civil Procedure Sections 1240.690 and 1240.700.
10. Assignment This Conservation Easement may not be transferred, assigned, or
extinguished without the prior 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 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 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 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 enforceability 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, approvals, or communications from one
party to another shall be personally delivered 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: Sabin Children's Foundation
Attention: Gary Sabin
c/o Excel Realty Holdings
17140 Bernardo Center Drive, Suite 310
San Diego, CA 92127
To Grantee: City of Poway
P.O. 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
Conservation Easement Deed
Page 6
The parties agree to accept facsimile signed documents and agree to rely upon such
documents as if they bore original signatures. Each party agrees to provide to the other parties, within
seventy -two (72) hours after transmission of a facsimile, documents 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.
14. Recordation Grantor shall promptly record this instrument in the official records of San
Diego County, California and immediately notify the Grantee and CDFG through the mailing of a confirmed
copy of the recorded easement.
15. General Provisions
(a) Controlling 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 rule of construction to the contrary
notwithstanding, this Conservation Easement shall be liberally construed in favor of the deed to effect the
purposes of this Conservation Easement and the policy and purpose of Civil Code Section 815, et seq. If
any provision in this instrument is found to be ambiguous, an interpretation consistent with the purposes of
this 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 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 to other persons or circumstances.
(d) Entire Agreement This instrument sets forth the entire agreement of the parties
with respect to the Conservation Easement and supersedes all prior discussions, 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 binding unless contained in an amendment in
accordance with Section 13.
(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 hereto and their respective
personal representatives, 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 of Rights and Obligations A party's rights and obligations under this
Conservation Easement shall terminate only 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 its construction or
interpretation.
(i) Counterparts The parties may execute this instrument in two or more counterparts,
which shall, in the aggregate, be signed by Grantor and Grantee; each counterpart shall be deemed an
Conservation Easement Deed
Page 7
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.
(j) Modification This Easement is not 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.
(1) 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.
(m) 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:
Sabin Children's Foundation, Property Owner
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Approved as to Form:
Office of the City Attorney
By:
Lisa A. Foster, City Attorney
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Date /' / Here Insert Name and Title of the Officer
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who proved tome on the basis of satisfactory evidence to
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of the State of California that the foregoing paragraph is
true and correct.
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Place Notary Seal Above / Signature of Notary Public
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 Document
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Title or Type of Documen
Document Date: r/l Z� G & Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
❑ Individual
❑ Corporate Officer— Title(s):
❑. Partner — ❑•Limited ❑General _
❑ Attorney in Fact
❑ Trustee Top of thumb here
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
Signer's Name:
❑ Individual
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
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Conservation Easement Deed
Page 8
CERTIFICATE OF ACCEPTANCE
This is to Certify that the interest in real property conveyed by the Conservation Easement by
Sabin Children's Foundation, dated iMAy 2, P , 2010, 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 Code Section 27281), is hereby accepted by the undersigned officer on behalf 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
Linda A. Troyan, MMC, City Clerk
Authorized Representative
Date: /7�U
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EXHIBIT `A'
BIOLOGICAL CONSERVATION EASEMENT
A PORTION OF PARCEL 2 OF PARCEL MAP 11135, IN THE CITY OF POWAY,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO PARCEL MAP
THEREOF FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY, MARCH 26, 1981, BEING DESCRIBED AS FOLLOWS:
THE NORTHERLY 600.74 FEET OF THE SOUTHERLY 640.74 FEET OF THE
WESTERLY 318.00 FEET OF SAID PARCEL 2.
TOTAL NET AREA IS 4.39 ACRE, MORE OR LESS.
WILLIAM C. tEN
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EXISTING EASEMENTS
DD # PROPOSED PRIVATE ROAD EASEMENT PER PARCEL MAP 4152
AS FILE NO. 75- 287573, RECD 10 -17 -1975
DD #2 UTILITY EASEMENT TO SDG &E PER FILE NO. 86- 571614
RECD 12 -9 -1986
DD #3 UTILITY EASEMENT TO SDG &E PER FILE NO. 87- 099130
RECD 2 -25 -1987
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NO 33730
EXP. 6 -30 -2010
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