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.
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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
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(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.
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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.
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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.
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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.
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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:
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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
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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
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