Conservation Easement Deed 2011-0327699D O C # 2011- 0327699
1 1111111 IIII VIII VIII VIII VIII VIII VIII VIII VIII VIII 11111 1111 1111
RECORDING REQUESTED BY: ) JUN 28, 2011 12:66 PM
CITY OF POWAY ) OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
Ernest J. Dronenburg, Jr., COUNTY RECORDER
WHEN RECORDED MAIL TO: ) D FEES: 0.00
OC: NA
CITY CLERK ) PAGES: 11
CITY OF POWAY )
X
POWAY CA 92074 -0789 ) IIIIIIIIIIIIIIIIIVIIIVIIIIIIIIVIIIIIIIIIIIIIIIIIIIIIIIVIIIIIIIIVIIIIIIIIIIIII
APN 277 - 220- 30 /MDRA 05 -06 This Space for Recorder's Use Only
CONSERVATION EASEMENT DEED
No Documentary Transfer Tax Due
THIS CONSERVATION EASEMENT DEED is made this 11 day of done 2011, by
Matthew Hahn and Devin Hahn ( "Grantor"), in favor of City of Poway ( "Grantee "), acting by and through
its Development Services Department, with reference to the following facts.
RECITALS
A. Grantor is the sole owner in fee simple of certain real property in the City of Poway,
County of San Diego, State of California, more particularly described in Exhibit "A" and Exhibit "B"
attached hereto and incorporated by 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 Coastal Sage Scrub. Coastal Sage Scrub is the
habitat of the California Gnatcatcher, which is listed as a threatened species on the Federal Endangered
Species list. 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 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.
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 of
seq. (ESA), the Fish and Wildlife Coordination Act, 16 U.S.C. section 661 -666c and other applicable laws.
G. The Biological Resources Analysis prepared by P &D Environmental, dated January
2000, for subdivision TTM 98 -02, "Heritage II Estates Biological Technical Report ", identified impacts to
Coastal Sage Scrub (CSS) habitat. Mitigation of impacted habitat was resolved as part of the Final
Environmental Impact Report, Sch. No. 98091083, through the preservation of open space easements on
each parcel throughout the subdivision. Open space areas were identified on the map no. 14388, filed in
the office of the County Recorder of San Diego County, California, on May 8, 2002, file number 2002-
0391382 for impacts to CSS. Recordation of Biological Conservation Easements will ensure preservation
of areas set aside for Coastal Sage Scrub habitat.
i--O82
Conservation Easement Deed
Page 2
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 construction of a single- family residence
within Heritage II Estates.
1. Grantee agrees by accepting this grant to honor the intentions of Grantor stated herein
and to preserve and to protect in perpetuity the conservation values of the property in accordance with
the terms of this Conservation Easement for the benefit of this generation and the generations to come.
COVENANTS. TERMS, CONDITIONS AND RESTRICTIONS
In consideration of the above recitals and the mutual covenants, terms, conditions, and
restrictions contained herein, and pursuant to California law, including Civil Code Section 815, at seq.,
Grantor hereby voluntarily deeds and conveys to Grantee 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.
Conservation Easement Deed
Page 3
(c) Grazing or surface entry for exploration or extraction of minerals;
(d) Erection of any building, billboard, 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.
(h) Planting of trees or other vegetation except by written permission from the City of
Poway.
4. Grantors 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: cleanup 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.
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
Conservation Easement Deed
Page 4
Section 815.7, the California Attorney General or third -party entitles 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 to change in the Property resulting from causes beyond Grantor's control, including, fire,
flood, storm, and earth movement, or any prudent action taken by Grantor under emergency conditions to
prevent, abate, or mitigate significant injury to the Property resulting from such causes.
6.4. Department of Fish 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 of Fish and Game or USFWS.
7. Metal Fence Stake Installation and Maintenance In order to identify and demarcate the
boundaries of the Conservation Easement Deed area at 18721 Heritage Drive, APN 277 - 220 -30, within
ninety days, the Grantor shall install and maintain metal fence stakes (T- stakes painted white) six (6) feet
in height [2 feet below grade and 4 feet exposed above grade] as follows: A stake shall be installed at the
property line at the point of intersection with the easement boundary line and also installed at intervals of
seventy -five (75) feet along the length of the easement boundary line. The purpose of this staking is to
identify to the lot 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 all required stakes shall
also be plotted on Exhibit B (easement plat) attached hereto.
8. Access This Conservation Easement Deed does not convey a general right of access to
the public.
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 and CDFG with satisfactory evidence of payment upon request.
9.2. Hold Harmless Grantor shall hold harmless, indemnify, and defend Grantee and
CDFG and its members, directors, officers, employees,, agents, contractors, and their heirs, and
representatives, successors and assigns (collectively "Indemnified Parties ") from and against all liabilities,
penalties, costs, losses, damages, expenses, causes of action, claims, demands, or judgments, including
without limitation, reasonable 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,
Conservation Easement Deed
Page 5
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: Matthew and Devin Hahn
18721 Heritage Drive
Poway, CA 92064
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
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.
Conservation Easement Deed
Page 6
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 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.
Conservation Easement Deed
Page 7
IN WITNESS THEREOF, Grantor and Grantee have entered into this Conservation Easement the
day and year first above written.
GRANTOR:
By:
Matthew
Devin Hahn
Approved as to Form:
Office of the City Attorney
By:
Mor n L. le City A rney
mAplanning \cmr\mdra \05 -06 ced hahn.docx
Conservation Easement Deed
Page 8
CERTIFICATE OF ACCEPTANCE
This is to Certify that the interest in real property conveyed by this Conservation Easement Deed
by Matthew Hahn and Devin Hahn, dated G —/ 1 —!! , 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
in A. Troyan, MMC'
Title: City Clerk
Authorized Representative
Date: �'_
EXHIBIT A
THAT CERTAIN AREA SHOWN AS OPEN SPACE EASEMENT OF LOT 30 OF
CITY OF POWAY TRACT NO. 98 -02 HERITAGE RANCH ESTATES, ACCORDING
TO MAP NO. 14388, FILED IN THE OFFICE OF THE COUNTY RECORDER OF
SAN DIEGO COUNTY, CALIFORNIA ON MAY 8, 2002, FILE NUMBER 2002- 0391382.
EXHIBIT B
WaterUne — " — -
Lot 30
Indi vidual Lot Declar
The Heritage Estates
Sewer Line Connection
Water LineCnnxediax
Heritage Drive 6' Parkwav - HCEA
Maintained
®
Front Yard s T Landscape
Setback
r \ s &, Easement - HCEA
Ulrfi�r Comecliom Q
Maintained
Tekphong Gar,
r 3 --1 Side Yard
Setback
i-
Ekdt i4 TV Cables
Street Lsght
4.85 I
�
LotNttrrrnber
-_' 30
Fuel Modification Acres I
i
es
Suk is fat
See Grading PAw fo1'pre&a&d topo8rapfy
Zone / Setback - no
Owner Maintained 1 \ \�
i
Retaining
i
Finished Pad Aaes
Wall
Ekadox ----' 7W
b�
i
No Settlement Sensitive r
Construction in this Area P
/ m
i
j \ toe \ \ Lot Dimension
i
\
Open Space
Easement
L_ 604'
40' Golf Course
Access Easement
L egend n ]
20' 69KV SDG&E Easement
Si
top 10' 12KV SDG &E Easement
Properly Line
— - - — - Slope Location
20' City of Poway
Oprx Spam
— — — toe Regional Trail Easement
Easement Line
Drainage SwakJCxk+ert
Storm Dn ix
Sew Une
— • — —
WaterUne — " — -
BmldsxgExvelope
North
Sewer Line Connection
Water LineCnnxediax
Common Area
Marxtenance
®
Easement HCEA
Ulrfi�r Comecliom Q
Maintained
Tekphong Gar,
0 2
0 700 2(10
Ekdt i4 TV Cables
Street Lsght
�
LotNttrrrnber
-_' 30
Fire Hydrant
ooa
Suk is fat
See Grading PAw fo1'pre&a&d topo8rapfy
L.ot size
US
Finished Pad Aaes
Ekadox ----' 7W
Buyer Date
Buyer Date
Mpla.✓r�rpna .ryA* wu� Ne kwadrdnr trpb. I.rNa
. �"'.�A*. ' m Lot 30
Gon.. a.. badA6rfmiw ..�4.r..tnv+ier. nac
be Awmisq, Apt ario6=Am Vwd k*ai#drdmgwmw4= 6118103
CALIF • ACKNO WLEDGMENT
State of California
County of , / � / � O
On 1 ? ZD before me, _Z4 yGt_is
Date Hcru Ineo Nmm� onA T•11n ..� u.e !u(......
personally appeared /�7
Name(s) of Signer(s)
PHYLLIS SHINN
Commlulon # 1778898
• Notary Public - California
Son Diego County
�•.�CenwLP V sNar9 2011
Place Notary Seal Above
who proved to me on the basis of satisfactory evidence to
be the person(s) whose names) )9/are subscribed to the
within instrument and acknowledged to me that
W /they executed the same in Vs/*r /their authorized
capacity(ies), and that by r)t§/hl4dtheir signature(s) on the
instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws
of the State of California that the foregoing; paragraph is
true and correct.
WITNESS my hand d official sea
Signature
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
Title or Type of Document: L 0ys6-,V, V 0,4/
Document Date: J LG ASE / /, ZO / � Number of Pages: /4
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
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
RIGHTTHUMBPRINT
OF SIGNER
Signer's Name:
❑ Individual
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
Top of thumb here