Loading...
HomeMy WebLinkAboutCDP 97-59; Levy Residence; Coastal Development Permit (CDP) (49)7825 Aston Avenue Carlsbad, CA 92008 Phone (760) 937-9009 X-705 #Fax (760) 937-9089 March 23, 1998 From: John C. Levy Jr. To: Mr. Chris DeTurbo Top of the Morning My Man! As promised I have attached the conservation easement to CDF@G we discussed. If you have any questions please do not hesitate to call. Stay Cool! RECORDING REQUESTED BY MAIL TO: Space Above Line for Recorder's Use Only CONSERVATION EASEMENT DEED THIS CONSERVATION EASEMENT DEED is made this 23rd day of March by John C. Levy Jr("Grantor"), in favor of THE STATE OF CALIFORNIA ("Grantee"), acting by and through its Department of Fish and Game, a subdivision of the California Resources Agency, with reference to the following facts: RECITALS A. Grantor is the sole owner in fee simple of certain real property in the County of San Diego, State of California, more particularly described in Exhibit "A" & 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 Grantee, the people of the State of California; C. The Property provides high quality habitat for the light footed clapper rail and contains native grasslands, riparian areas and coastal sage scrub; and D. The Department of Fish 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, and the Department of Fish and Game is authorized to hold easements for these purposes pursuant to Civil Code Section 815.3, Fish and Game Code Section 1348, and other provisions of California law. /I I/ FORM 5-1996 Conservation E~sancnt/[Applicanl] Form 01 I96 COVEIyBNTS, TERMS. CONDITIONS AND Rl?aICTIOW 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. 1. m. The purpose of this Conservation Easement is to ensure the Property will be retained forever in a natural condition and to 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. hghb. To accomplish the purposes of this Conservation Easement, Grantor hereby grants and conveys the following rights to Grantee by this Conservation Easement Deed: I. 2. (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) Prohblted 1 Jsa . Any activity on or use of the 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: All present and future development rights. .. 3. (a) Unseasonal 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; FORM 5-1996 2 , -, (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; (f) Excavating, dredging or removing of loam, gravel, soil, rock, sand or other material ; (g) Otherwise altering the general topography of the 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. or’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 perfect Grantee’s rights under section 2 of this Conservation Easement, including but not limited to, Grantee’s water rights. 5. ed Rgb. 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. e’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 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) 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 compliance by Grantor with 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 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 FORM 5-1996 3 Conservation bunmc/[Applicant] Form 01/96 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 agrees that Grantee's remedies at law for any violation of the terms of this Conservation Easement are inadequate and that Grantee shall be entitled to the injunctive relief described in this section, both prohibitive and mandatory, in addition to such other 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 hture 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 or negligence under the terms of this Conservation Easement shall be borne by Grantor. I 6.2 iscr-. 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 term 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 ts Bev-. Nothing contained in this Conservation' Easement shall be construed to 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 of Fish mht of Enforcema. 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. 7. m. Grantor shall install and maintain a fence around FORM 5-1996 Conscrvntion bemcnt/[Applict] Form 01/96 4 .. the Conservation Easement area to protect the conservation values of the Property. 8. Access. This Conservation Easement does not convey a general right of access to the public. . .,. 9. m. 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. Grantor shall hold harmless, indemnify, and defend Grantee and its 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: (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, 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 Condew. 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. -. This Conservation Easement is transferable, but 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 8 15.3. Grantee shall require the assignee to record the assignment in the county where the property is located. 11. 7. Grantor agrees to incorporate the terms of this Conservation Easement in any deed or ather 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 of the intent to transfer of any interest at least fifteen (15) 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 notice, 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 Consclvntion Eosemmt/lAnnlicantl FORM 5-1996 5 Form 01 196 or sent by first class mail, postage prepaid, addressed as follows: To Grantor: John C. Levy Jr. 1825 Aston Avenue Carlsbad, CA 92008 To Grantee: Department of Fish and Game Region 5 330 Golden Shore, Suite 50 Long Beach, CA 90802 Attn: Regional Manager Department of Fish and Game Legal Affairs Division 1416 Ninth Street, 12th Floor Sacramento, California 958 14-2090 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 Conservation Easement and, except as provided in Section 13, shall not affect its perpetual duration. Any such amendment shall be recorded in the official records of San Diego County, State of California. .. 14. a1 Provisiw. (a> ' Controlling J,aw . The interpretation and performance of this Conservation Easement shall be governed by the laws of the State of California. - @> a1 Constructim. 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 policy and purpose 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. (4 -. If a court of competent jurisdiction voids or invalidates on its FORM 5-1996 Consewittion E.srment/[Applicant] Form 01 196 6 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 to Deed to a person or circumstance, such action shall not affect the application of the provision to other persons or circumstances. (4 EntlreAPreement. 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. No alteration or variation of this instrument shall be valid or binding unless contained in an amendment in accordance with Section 14. (e) No Forfeu. Nothing contained herein will result in a forfeiture or reversion of Grantor’s title in any respect. (9 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. .. .. (8) v. A party’s rights and obligations under this Conservation Easement terminate 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) CaDtlons 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) Counm. The parties may execute this instrument in two or more counterparts, which shall, in the aggregate, be signed by both 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. It It - /I /I It /I If It lI It If FORM 5-1996 Conservntion EasrmmU[Applic~u~t] Form 01/96 7 IN WITNESS WHEREOF Grantor and Grantee have entered into this Conservation Easement the day and year first above written. GRANTOR: Approved as to form: (Name and Address) John C. Levy Jr. BY: LINUS MASOUREDIS, General Counsel California Department of Fish and Game FORM. 5-1996 8 Conservation Eaacmmt/[Applicant] FollIlO1196 ICATE OF ACCEPTANCE This is to certify that the interest in real property conveyed by the Conservation Easement Deed by , to the State of California, grantee, acting by and through its Department of Fish and Game (the "Department"), a governmental agency (under Government Code section 27281), is hereby accepted by the undersigned officer on behalf of the Department, pursuant to authority conferred by resolution of the California Fish and Game Commission on , dated GRANTEE: STATE OF CALIFORNIA, by and through, DEPARTMENT OF FISH AND GAME By: Title: Authorized Representative Date: .- FORM 5-1996 Conservation Ensrmen~Appli~ont] Form 011% 9 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT I State of California On March 239 1999 , before me, Denise Sciarra, Notary Public , Name and Tile of Officer (e.g., “Jane Doe, Notary Public”) Date personally appeared * * * * * * * * John C. Levy Jr. * * * * * * * * * Name@) of Signer@) d personally known to me 0 proved to me on the basis of satisfactory evidence to be the personM whose nameQ$@&e- subscribed to the within instrument and executed signaturew on the instrument the person(% or the entity upon behalf of which the person(* acted, executed the instrument. WITNESS my hand and official seal. r Place Notary Seal Above OPTlONA L 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 Ttle or Type of Document: Document Date: March 239 lgg9 Number of Pages: Nine (9) Conservation Easement Deed Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer’s Name: ci individual 0 Corporate Officer - Title(s): 0 Partner - Limited 0 General 0 Attorney in Fact 0 Trustee 0 Guardian or Conservator 0 Other: Signer Is Representing: u 0 1997 National Notary Association * 9350 De Sot0 Ave., P.O. Box 2402 * Chatsworth, CA 91313-2402 Prod. No. 5907 Reorder. Call Toll-Free 1-800-876-6827 EXHIBIT ''A I' HABITAT SETBACK EASEMENT An easement for habitat setback protection purposes over, across and through those portions of Parcels A and B of Certificate of Compliance for Adjustment Plat according to Official Plat Number ADJ 471 thereof in the City of Carlsbad, filed in the Office of The County Recorder of San Diego County, State of California per Document No's 1997 - 0551 579 and 1997 - 0551 580, respectively, on November 3,1997 more particularly described as follows: Beginning at the most southeasteriy comer of said Parcel A; thence N3!"7'26''W1 47.01 feet; thence N32%6'52"W1 65.74; thence N43" 34'58"W, 6.97 feet to the True Point of Beginning; thence N43O 34'58"W, 17.47 feet; thence N39%4'02'*W, 22.58 feet; thence N40° 28'41"W, 52.74 feet; thence N42°48133''W, 48.07 feet; thence N3@ 42'29"W, 57.01 feet; thence N4!5%3'31"W, 50.31 feet; thence N 41' 03'09"W, 61.00 feet; thence N37%3'12"W1 33.96 feet; thence N30° 1 7'31"W, 25.79 feet; thence N4I051'35"W, 17.90 feet; thence N5I0 32'58"W, 26.38 feet; thence N68?3O'15"W1 14.33 feet; thence N33' 21 '30"W, 4.65 feet; thence S89?8'54"W1 8.62 feet; thence S55?27'15"W, 10.81 feet; thence S51%0136"W, 19.62 feet; thence S38"5'27''W1 19.25 feet; thence S34%6'18"W, 29.77 feet; thence S8?58'41"Wl 18.88 feet; thence S25q!l'24"Wl 28.34 feet; thence S22%7'3O"W1 23.22 feet; thence SI 6%6'05''W, 25.26 feet; thence S1%O'48"W1 58.03 feet; thence S3%4'48"E, 33.03 feet; thence Sa 6'14"W, 20.7 1 feet; thence S4%7'36''El 24.37 feet; thence SI4%2'17''Wl 24.81 feet; thence Sl2"'56''W1 2.65 feet to the westerly terminus of the boundary line that bears N89Cf24'02"W between the aforementioned Parcels A and B; thence S72%9'56"Wl 21 -21 feet; thence S20~4'45''W1 26.39 feet; thence SI 6%8'23"W, 28.35 feet; thence S309 3'1 9"W1,35.84 feet; thence S89?24'02''E1 - R L- .. .. v. 95.07 feet; thence N11?7'42"E,105.84 feet to its intersection with the boundary line that bears N89%'02"W between the aforementioned Parcels A and B; thence N7%0'48"E, 168.60 feet; thence S41%0'31"E, 276.35 feet; thence S86%0'31"E, 14.14 feet; thence N48%9'29"E, 22.65 feet to the start of a 48.00 foot concave southerly cutve, a radial bearing through said point bears S41%0'31 "E; thence southeasterly along said cuwe through a central angle of 7401'52" a distance of 62.02 feet, a radial line through said point bears N33Cb1'21"E; thence N47?30'00"E, 21.89 feet to the True Point of Beginning. cdfgesm t 2. I.