HomeMy WebLinkAboutCDP 97-59; Levy Residence; Coastal Development Permit (CDP) (39)1825 Aston Avenue Garlsbad, CA 92008
Phone (760) 931-9009 X-I05+Fax (760) 931-9089
September 30, 1998
From: Mr. John C. Levy Jr.
To: Mr. Tim Diltingham
California Department of Fish and Game
RE: CDP 97-59
Dear Tim,
Pursuant to the conditions of CDP-97-59 I have enclosed the completed
Conservation Easement Grant with attachments Exhibits A. and B that were
furnished by your office for dedication and recording.
It is necessary that CDF&G sign and notarize the document and return it to
my ofice for recording.
reached at (760) 931-9009 ext. 105.
/*
’/ CdMr. Chris DeCerbo
City of Carlsbad Planning Department -. J
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XAiL TO: a
i 1 1 1 1
Above Space for Recor6er's Use
! AN UNMARRIED MAN 3 (llGrantorll) , In favor 05
! j ( liGran~eell ) . CALIFORNIA DEPT OF FISH ?i GAMF I
Wm , Grancar is the sole owner in fee sinple
m*-- ,,,,a5 real propezy in che City of UR~ cg~n , Stace of Of
I the Prs~erty 2ossesses wildlife zad native hakizat vzlues (collectively, '(cmservation values11 1 of Fcat iqor-ance to Grantor, the 2eocle of SA_N DIFT;,O .
(2oury) and :.he people cf the Staze Oi Calxozzua; snc
WEZFSAS. the urrmer~y provides high quality hahicat 5s~ and contaizzs nazive ae LIGHT FOOTED 111 APPFR BAT1 [~asslzncs, ri2arian teas and c~astal sage scrub] ; md
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, Granzee aFees 5y accepting this Fant to
honor =be intentions of Gzzntor stated herein and ta Trese-ve to pr~t=ct in peqetuity tie conservation values of ene ProGexy
i., accgraancc with the zezms or' chis Conse-rvation Easemenc for
the benefit of this gencrxion and =he generations t3 c3me;
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NOW, TXEPZFORE, in consideration of the above =E the mutual covenants, terns, conditions, and restrictions czzained herein, and pursuan~ to the laws of California and Civil ",de section 815, et seq., Grantor hereby voluntarily grants a5
zmveys to Grantee a conservation easement in perpetul2y mer the
lroperty of the natre and character and to the extent iereinaf ter set f ortn ( "Easement " ) .
1. Pumose. It is the purpose of this Easement =z assure =hat the Property vi21 be retained forever in a natural zmdition and to prevent any use of the Property that will significznzly impair or interfere with the conservation values of the 3raperty. Granzor intends that this Easement will confine the use the
lroperty to such aczivities, including withour limitatix, those
Lzvolving the preservation and enhancement of native spzl~,s and
znsir habitat in a mznner consistent wizn the habitat zzzstrvation pcq3ses of this Easement.
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2. RiahEs of 3r~ntec. To accomplish the pu-~os~ zf this .. 3asement the followLxg rignts are conveyed to Grantee by xis
Sasement :
(a) To pzesene and protect the conservation z-zlues of
=h= Property ;
(b) To enser upon the Property at reasonable zimes in
order to monitor Gr=?torCs compliance with and to bthe-tse ezforce the terms of tnis Easement; provided that Grante~ shall
"3: ur-easonably ixzterfere with Grantor's use and quiet' cjoynent cf the Property; an5
IC) To prevent any activity on or use of the 3rD2erty
~at is inconsistex with the habitat conservation puqzsss of - ,;,,s -- < easement and == require the restoration of such ar~s or
fcazures of the Prc2erty that may be damaged by any incsxistent aczivity or use.
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(d) All xinerd, air and water rights requiz?: ro SrDzect and to susztin the biological resources of the ecsement - -acs.
(e) ml ?resent and future development rights.
3. ProhibiccZ Uses. Any activity on or use of =kc
3zperty inconsiszsat with the habitat conservation p~zzses
ZDcienticides, or wee5 abatement activities, incompatijle =ire
-* --. ,,-,s Easem=nt is pzkibited. Without limiting the gencrzlity
zit foregoing, uns=asonal watering, use of herbicides, -
affect 6- L~~ preservation purposes r Of
Of
L ' or
this "Laszxzrr are
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prohibited. Graxor shall undertake all reasonable actions prevent the unlawful entry and trespass by persons wnose activities may.deFade or harm the biological values of the
to
land. Grantor shall not authorize the use by Gsantor, Gzantoz's agents, or any third parzy of off-road vehicles, grazing or surface entry for exploration or extraction of minerals.
4. ReserveE Riahts. Grantor reserves to itself, and so its personal representatives, heirs, successozs, and assigns, all rights accruing frDm its ownership of the Property, including the right to engage ir or pe-mit or invite others to engage in all uses of the ProperZy that are not prohibited hereiE and are not inconsistent witk =he pu-Tose of this Easement.
5. Grarc? s RerneSies. If Grantee dezermixes tkzz Grancor is in vioiztioz sf =he terms of this Zasemenz or =kat a violazror,
is zhzeazene5, Grczee shall sive k=i::en nozice =u" Granzor of such viclazios ar15 ciemand cxrective accior? sufficient ts cure
i- ,ne vioiazi3r, anZ, where =he violatFDr, involves Fr,icry =z the
Property resxl:in,- from my use or aczivity inconsistenz with the
pu-zpcse of :his Zzsement, to restore the porzion of the F'roperty
so ir,jured. 15 Grator fails to cure the violation wichin fifteen (15) days after receipt of notice thereof from Grantee, or under cixums=zxes where the violation cannot reasonably be cured witkin a flfzeen (15) days period, fail to begin curing such violatim wi=h the fifteen (15) day period, or fail to continue diligenrly to cre such violation until finally cured, Grantee may 5ring a~ action at law or in equity in a COLZ of com2etenc jcrisdiczion to enforce the terms of this Easement, :o
o,r,joFn rne violazim, ex parte as necessa,ry, by tern?ora--y or
permanent injunczim, to recover any damages to wLhich it may be entitled for vioiazion of the terms of this Sasement or injury to any conservation vslues protected by this Easemen:, including damages for =be lcss of scenic, aesthetic, or environmenzal
values, and. t~ reTLire the restoratim of the Property to the conhitior, :hat ex,s=ed prior to any such injury. limiting Granzor'r liability therefor, Grantee, in its sole
discretion, may z22ly any damages recovered to the cos: of unfiertakinc any z~rrective action or? the PrDperty. if Grantee, ir? its sole zi.~~rt=ion, 6etermines zhaz circumstanaes repired immediate aczion T;S prevent or mitit;a=c significanz damage to Che
conse-Tatioz val-ucs of the Property, Grantee may prilrsue its remedies una== this paragraph withouz prior nocice to Grantor or without waiting fzr the period provised for cls-e to eqire. Grantee's rlgkts -=der this paragra2h apgly equally in the event
of either aczual cz: threarened violazions of =he =erns of this Easement, md Gra=-,=or a-ces that Grantee's remedies at law for
any violatior. of =?E terms of this Zasement are inademate and
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Wizh~ut
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that Grantee snall in this para-apk,
- be entitled to tnc injunczlve relief described both prohibi t ive
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and mandatory, in aedition to
such other relief to specific performance which Grantee may be entitled, including of the terms of this Easement, without-the either actual damages or the iziadequacy of necessity- of proving otherwise available legal remedies. Grantee s remedies described in this paragraph shall be cumulative and shall be in addition to all remedies now or hereafter existing at law or in equity. F-urthemore, the provisions of Civil Code section 815, et seq., are incorporated herein by this reference and this 5rant is made subject to all of the rights and remedies set forth therein. If at any time in the future Grantor or any subsequent transferee
uses 05 threatens to use such lands for pu-qoses not in confozmance with the stated conservation purposes contained nerei=, notwithstznding Civil Code 815 et seq., CailfoD-ia Attorney General or third-parzy entities orsszized for
COIIS=~~-~K~OE 9~qoses have standing as interested 2arties in a~y proceeking azzecting this Easement. LC
5.1 Costs of znforcernent. Any C~SCS izxurred by Grantee in enfozcin_c ,ne ~e-ms of this Zascment agzinst i2zax~r,
inducing, wirhout limitation, costs of suit and atzorneys' fees, and aq' costs of restoration necessitated by Grantor's violazion
or nesligence under the terms of this Easement shall be borne by
Grantor.
5.2 Grantee's Discretion. Znforcemenz of the terms of this Easement shall be at the discretion of Grarcee, and any
forbearance by Grantee to exercise its rignts under :his Easement in the event of any breach of any term of this Sasement by
Grantor shall not b~, cieemed or construed to be a waiver.by
Grantez of such term or of any subsequent breach of the same or any otier term of this Easement or of any of Grantee's righcs under =k.lls Easement. No delay or omission by Grantee in the exercise of zny right or remeay upon any breach by Grantor shall im=;air such rl~n~ or remedy or be construed as a waiver.
5.3 Acts Sevond Grantor's Control. Nothing
contained in =his Sasement snall be conscrued to encizle Granzce
Lo 3r:xq any actior? aczinsc Grantor for any injury 'co or change L.. - - - in the 9roperZy res~ltin5 from causes beyond. Grantzr's conzrol, incluCLnq, wi=hout limization, xire, flood, szorm, ad. ear5 C. - movernext, or from any prudent action taken by Grantor under emergency conditions to prevent, abate, or rnizigatc significant inju-y to the Property resulting from such causes.
Grantor shall CI 6. pence Inscallatior and Maintenance.
install and maintain a fence around the Easement zzsa to protect the conservazion
7. Access.
Of access to she
puqoses contained in this Sasement.
This agreement does not convey a general right public; however ,
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access * C. scienzxic research
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and interpretive purposes shall be reserved to the Grantee or to =he designee of the Grantee.
8. Costs of Liabilities. Grantor retains all responsibilities and shall bear all costs and liabilities or’ zny kind including transfer costs, costs of title and documentation review, expenses incu-red from other szate agency reviews, and
zosts related to the ownership, operation, upkeep, and maintenance of the ,Property.
8.1 Taxes. Grantor shall pay before delinquency a13 =axes, assessments, fees, and charges of whatever description
lwied on or assessed against the Property by competent auzhority (collectively fltaxe~ll) , including any taxes imposed upon, or incurred as a result of, this Easement, and shall furnish Graazee
with. satisfacto-ry evicience of pyment upon request.
8.2 Hold Elamless. Grantor shall hold harmless, Inaemnify,and aefenc Grantee and its memjers, 2irec=3rs,
~fficers, em?loyees, agents, and contractors and the heirs, - Dersonal representatives, successors, and assigns of each of :hem (collectively l!Indemnified Parties1! ) from and against all Liabilities, penalties, costs, losses, damages, expense, causes
~f action, claims, demands, or judgments, including without iimizazion, reasonable attorneys' fees, arising from or in any way connected with: (1) injmry to or the death 05 zny persm,
or physical damages to any property, resulting from any act, Dmission, condition, or other matter related to or occurring on
or about the Property, recardless - of cacse, unless due to the
negligence of any of the Indemnified Parzies; (2) the obligations specified in paragraphs 7, 8, and 8.1; and (3) the existence or adminiscation of this Easement.
8.3 Condemnation. The habizat conservation puzzoses
are >resumed to be the best and most necessa-ry public use as riefined at CCP section 1240.680 notwitnstanding-CCP seczion
1240.690 and 1240.700.
d. 0 Assicmment. This 3asemcnt Is transferable, but -- “--antee may assign Fzs rignzs and obligations uncier chis 3:asemenz mly EO an orgmization :hat is a qualified organizazion at =he Zime of transfer under section 170(h) of the Internal Revenue Code of 1954, as amended (or any successor provision then applicable), and the applicable regulations promulgated thereunder, and authorized to acquire md hold conservation easements under Civil Case section 815, et seq. (or any successor 2rovision then applicable). As a condi:ion of such transfer, 3rancee shall require that the conservation purposes that this
,-rant is intended to aavance continue to be carried out and
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the in
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recorded
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be notice of such restrictions
the gqerty is located. shall comity where .
incarporate 10. Subsement Transfers. rhe tzms of this Easement in any
Grantor agrees to deed or other lesal inszlnment 3y whicn they divest themselves of any interest in-all or a
?ortior? of the Property, including, without limitation, i3. leasehzld interest. Grantor further agrees to give mizzen notice 50 Grantee of the intent to transfer of any interest at
least fiSteen (15) days prior to the date of such transfer. Grantce shall have the right to approve all subsequent zransfers
to insure that all subsequent claimants or transfers have notice of =h~ included restrictions. The 52ilnre of Grantor tc zerfom azy act required by this paragraph snnall not imgair the ~-~lic<- - -Y 35 this 3:asemenZ or limit its enforceability in any way.
-- __. Lszo~~el Cerzlficates. Upm request by Granzzz,
GT-WZPC shall within fifteen (15) days execute and cieliv~r :o
Grm==r any 6ocument, including estoppel certificaze, wtizn cer=ir^i=s Grantor's compliance with any obligation of Grator
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- - concaked in this Easement and othe&rwise evidences the s=atus of
this Zasement as may be requested by Grantor.
12. Notices. Any notice, demand, request, consen:, apqzo\--81, or communication that either party desires or is
reGired to give to the other shall be in writins..and either - first class mail, postage prepaid, serve6 2ersonally or sent adkessed as follows :
TO Grantor: JOHN C. LEVY JR.
1825 ASTON AVt
CAKLSBAD CA 92008
Department of Fish and Game Region - To Grantee :
California
Department of Fish ane Game Legal Affairs Division
1416 Ninth Street, 12th Floor
P.O. Box 944209 Sacramento, California 95814-2090
or to such other ad&ress as either party from time co time shall desis-ase by writteE notice to the other.
3. Recordation. Grantor .shall promptly record tkis instxmcnt in the ofeicial
.Califs-nia and immediately records of AN nTFGl! Crnty, notify the Grantee through the mailins
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of a conformed cmy of’the recorded easement. Grantee may re-
record it at any time as may be required to preserve its rights
in this Easement.
14. General Provisions.
(a) Controllinu Law. The interpretation and performance of =his Easement shall be governed by the laws af the State of Califoraia.
(b) Liberal Construction. Any general rule of construction to the contrary notwithstanding, this Easemenz shall
be lijerally construed in favor of the grant to effect the pu-~ose of this Zasement and the policy and prpose Civil 35e seezior 815, et seq. If any provision in this instrumen: Fs found to be ambigmus, an inte,Tretation consistent wizh the p~~oses of zkis Sasement that woul6 render the provlsiori >-die
shall be favoree over any intevretation Enat woulti rencier iz
invalid.
(c) Scverabilltv. If any provision of this Zassment, or the agplication thereof to any person or circumstances, is found to be invalid, the remainaer,of the provisions of this Easement, or the application of such provision to persons 5:
circumstances orker than those as to wnicn it is found to 50-
invalid, as the case may be, shall not be affected thereby.
(d) fxtire Acreement. This instrument sets f~rtn the
entire agreemen= af the parties with respect to the Easement an6 supersecies all prior discussions, negotiations, understanchgs, or acreements relating to the Zasement, all of which are merged
herein.
(e) Forfeiture. Nothing contained hereiz will
resElt in a forfeitre or :eversion of Grantor’s title in ay respecc.
(f) su~co,ssoTs. The Covenants , te,ms , con2itFacs ,
an6 reszriczionr of this Easement shall be binding upor,, a-?Z inure LO the benerit of, Lhe sartics hereco and their resFeCive personal represatatives , heirs , successors , and assigns ad shall continue zs a servitude running in pe,-petuity with tke Property.
&- C.
(g) Cm’iions . The captions in this instrument
have been inserzed solely for convcnience of reference and are not a pa-rt of tkis instrument and shall have no effect up02
construccion or inteqretation.
instrument (h) in
Cmntemarts. The parties may
:wa or more counterparts, which
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execute this shall, iri thc
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aggregate, be signed by both parties; each counterpizrt shall 5e
deemed an original instrument as against any party wno has si~-eS it. In the event of any disparity between the counteTarts
produced, the recorded counterpart shall be controlling.
IN WITNESS WHEFSOF Grantor and Grantee have enzered int3 this Easement the day and year first above written.
GRANTOR : GRANTEE :
!Name and Add-ess) fl (Name and Address!
1825 ASTON AVE
CARLSBAD CA 92008
Approved as to .. f 0-?n :
a
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*v CALIFORNIA ALL-PURPC ,E ACKNOWLEDGMENT - 1
F -
State of C&\\r;,T,,U
County of Ql-
U personally appeared '4 Toh+ LLWA JJ I
WS) ot slgner(s)
personally known to me - OR - proved to me on th!basis of satisfactory evidence to be the persa
whose namew is/% subscribed to the within instrument
and acknowledged to me that he/sM/&y executed the
same in his/M/th&r authorized capacityw), and that by
hishW/t%ir signatureo on the instrument the ersoni,
or the entity upon behalf of which the persoh acted,
executed the instrument.
WITNESS my hand and official seal.
Signature of Notary PuMc
OPTIONAL
red by law, it may prove valuable to persons relying on the document and could prevent
oval and reattachment of this form to another document.
Description of Attached Document
Document Date: 9 -30 cib Number of Pages. .g
Signer@) Other Than Named Above: -
Capacity(ies) Claimed by Signer(s)
Signer's Nama&\ CL-JY
3 Individual
0 Corporate Officer
0 Partner - 0 Limited 0 General
0 Attorney-in-Fact
Title(s):
0 Trustee
0 Guardian or Conservator 0 Other: Top of thumb here
Signer Is Representing:
Signer's Name:
0 Individual 0 Corporate Officer
Title(s):
0 Partner - Limited 0 General 0 Attorney-in-Fact 0 Trustee
0 Guardian or Conservator 0 Other: Top of thumb here
Signer Is Representing:
0 1994 National NotaIYAssocmtm 6236 Remrnet Ave.. P.O. Box 7184 Canoga Park, CA 91309-7184 Prod. No. 5907 Reorder: Call Toll-Free 1-800-876-6827 ,
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EXHIBIT "A"
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 Carisbad, 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 southeasterly comer of said Parcel A; thence
N35%7'26"W, 47.01 feet; thence N32%6'52"W, 65.74; thence N49
34'58"W, 6.97 feet to the True Point of Beginning; thence N43'
34'58"W, 17.47 feet; thence N3@54'02"W, 22.58 feet; thence N40'
28'41''W, 52.74 feet; thence N42°48'33"W, 48.07 feet; thence N380
42'29"W, 57.0q feet; thence N45%3'31''W, 50.31 feet; thence N 41'
03'09"W, 61.00 feet; thence N37%3'12"W, 33.96 feet; thence N30°
17'31"W, 25.79 feet; thence N4I051'35"W, 17.90 feet; thence N5I0
32'58"W, 26.38 feet; thence N6mO'I 5"W, 14.33 feet; thence N33'
21 '30"W, 4.65 feet; thence S89"'54''W, 8.62 feet; thence
S55?27'15"W, 10.81 feet; thence S51%0'36"W, 19.62 feet; thence
S3B045'27''W, 19.25 feet; thence S34%6'18"W, 29.77 feet; thence
S838'41"W, 18.88 feet; thence S25% '24"W, 28.34 feet; thence
S22%7'30"W, 23.22 feet; thence SI 6%6'0s"W, 25.26 feet; thence
S1%0'48"W, 58.03 feet; thence S3%4'48"E, 33.03 feet; thence
Sa 6'1 4"W, 20. I 1 feet; thence S4%7'36''ET 24.37 feet; thence
S14%217''W, 24.81 feet; thence Sl2%9'56"W, 2.65 feet to the
westerly terminus of the boundary line that bears N89?24'02'W
between the aforementioned Parcels A and B; thence SI 2%9'56"W,
21 -21 feet; thence S20%4'45"W, 26.39 feet; thence S16%8'23"W,
28.35 feet; thence S303 3'1 9"W,,35.84 feet;.thence S89'?24'02'-'ET
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95.07 feet; thence N1 19 7'42"E, 105.84 feet to iti intersection with the
boundary line that bears N8-4'02"W between the aforernentioned-
Parcels A and B; thence N7%0'48"E, 168.60 feet; thence S41%0'31"E,
276.35 feet; thence S8600'31 "E, 14.14 feet; thence N48%9'29''E,
22.65 feet to the start of a 48.00 foot concave southerly curve, a radial
bearing through said point bears S41%0'3 7 "E; thence southeasterly
along said curve through a central angle of 7407'52" a distance of
62.02 feet, a radial fine through said point bears N33cb1'21"E; thence
N47?30'00"E1 21.89 feet to the True Point of Beginning.
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