HomeMy WebLinkAboutCT 00-16; Waters End Homeowners Association; 2019-0038074; CovenantRECORDING REQUESTED BY AND)
WHEN RECORDED MAIL TO: )
City Clerk
CITY OF CARLSBAD
1200 Carlsbad Village Drive
Carlsbad, California 92008-I 989
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DOC# 2019-0038074
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Feb 01, 2019 12:32 PM
OFFICIAL RECORDS
Ernest J. Dronenburg Jr
SAN DIEGO COUNTY RECORDER
FEES $0 00 (S82 Atkins: $0.00)
PAGES: 24
Space above this line for Recorder's use
Assessor's Parcel Number 214-610-58 _________ ___;::_ ___ _
Project Number and Name CT 00-16, Waters End -----------"------
DECLARATION OF RESTRICTIVE COVENANTS
This DECLARATION OF RESTRICTIVE COVENANTS ("Restrictive
Covenant") is made this /f,~ day of ~20l~by WATERS END HOMEOWNERS
ASSOCIATION, a California nonprofit mutual benefit corporation (hereinafter "Declarant").
RECITALS
A. Declarant is the sole owner in fee simple of those portions of the Poinsettia
Properties Specific Plan Project (the "Project") located in the City of Carlsbad, County of San
Diego, State of California and as further described in legal descriptions attached hereto as Exhibit
"A" and depicted on Exhibit "B" and attached hereto and incorporated by this reference (the
"Restricted Property"), which consists of approximately 1.15 acres.
B. This Restrictive Covenant provides mitigation for certain impacts of the Project,
pursuant to requirements of Condition No. 1 of City of Carlsbad Planning Commission Resolution
No. 4157, dated December 3, 1997. This Restrictive Covenant is intended and shall be deemed to
satisfy such requirement as to the Restricted Property. The amount of vernal pool and upland
watershed habitat to be preserved within the Restricted Property is 1.15 acres.
C. The Restricted Property possesses wildlife and habitat values of great importance
to the People of the State of California and currently is and will remain in a Natural Condition as
defined herein and is intended to be preserved in its natural, scenic, open condition to maintain its
ecological, historical, visual and educational values (collectively, "Conservation Values").
D. The United States Fish and Wildlife Service ("USFWS") has jurisdiction over the
conservation, protection, restoration, enhancement and management of fish, wildlife and native
plants and the habitats on which they depend under the Endangered Species Act, 16 U .S.C. Section
1531 et. seq., the Fish and Wildlife Coordination Act, 16 USC, Section 661-666c and other
applicable federal laws.
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E. California Department of Fish and Wildlife ("CDFW") has jurisdiction, pursuant
to 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.
F. The City of Carlsbad ("City") is a municipal corporation with a Habitat
Management Plan for Natural Communities in the City of Carlsbad ("HMP") adopted by its City
Council in November 2004, with the overall goal of contributing to regional biodiversity and the
viability of rare, unique or sensitive biological resources throughout the City and the larger region
while allowing public and private development to occur consistent with the Carlsbad General Plan
and Growth Management Plan.
COVENANTS, TERMS, CONDITIONS AND RESTRICTIONS
NOW THEREFORE, Declarant hereby declares the Restricted Property shall be held,
transferred, conveyed, leased, occupied or otherwise disposed of and used subject to the following
restrictive covenants, which shall run with the land and be binding on Declarant's heirs, successors
in interest, administrators, assigns, lessees, or other occupiers and users of the Restricted Property
or any portion of it.
1. Purpose.
(a) The purpose of this Restrictive Covenant is to ensure the Restricted Property will
be retained in perpetuity in a Natural Condition, defined below, and to prevent any use of the
Restricted Property that will impair or interfere with the Conservation Values of the Restricted
Property (the "Purpose"). Declarant intends that this Restrictive Covenant will confine the use of
the Restricted 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 Restrictive Covenant.
(b) The term "Natural Condition," as referenced in the preceding paragraph and other
portions of this Restrictive Covenant, shall mean the condition of the Restricted Property as it
exists at the time this Restrictive Covenant is executed, as well as future enhancements or changes
to the Restricted Property that occur directly as a result of the following activities:
(1) In-perpetuity maintenance ("Long-Term Maintenance, Management,
and Monitoring"), that occurs on the Restricted Property as described in Section
8 herein; or
(2) Activities described in Section 6 herein.
(c) Declarant certifies to City, CDFW, and USFWS that, to Declarant's actual
knowledge, there are no structures or other man-made improvements existing on the Restricted
Property. The current Natural Condition is evidenced in part by the depiction of the Restricted
Property attached on Exhibit "C", showing (1) a color aerial photograph of the Restricted Property
at an appropriate scale taken as close in time as possible to the date this Restrictive Covenant is
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executed; (2) an overlay of the Restricted Property boundaries on that aerial photograph; and (3)
on-site color photographs showing all natural features of the Restricted Property.
(d) Notwithstanding anything set forth herein to the contrary, nothing in this Restrictive
Covenant is intended nor shall be applied to in any way limit the use by existing easements as
those rights are specifically set forth within Exhibit "D".
(e) If a controversy arises with respect to the Natural Condition of the Restricted
Property, City, CDFW, and USFWS shall not be foreclosed from utilizing any and all other
relevant documents, surveys, photographs or other evidence or information to assist in the
resolution of the controversy.
(f) The term "Land Manager" shall mean a qualified entity with knowledge of upland
and vernal pool resources in the San Diego County area and expertise in the field of biology and
long-term habitat management. The City will be the Land Manager for the Restricted Property,
and may delegate land management duties to a qualified consultant. The City will not transfer
Land Manager responsibility to another qualified entity without first consulting with the CDFW
and USFWS.
2. Declarant's Duties.
Declarant, its successors and assigns shall:
(a) Undertake all reasonable actions to prevent the unlawful entry and trespass by
persons whom Declarant knows are not entitled to access the Restricted Property and whose
activities Declarant knows or reasonably suspects would be inconsistent with the Conservation
Values and would violate the permitted uses of the Restricted Property set forth in this Restrictive
Covenant; and
(b) Comply with the terms of this Restrictive Covenant and cooperate with City,
CDFW, and USFWS in the protection of the Conservation Values; and
(c) Repair and restore damage to the Restrictive Property directly or indirectly caused
by Declarant, Declarant's guests, representatives or agents; provided, however, Declarant, its
successors or assigns shall not engage in any repair or restoration work in the Restricted Property
without first consulting with City, CDFW, and USFWS pursuant to Section 8; and
(d) Obtain any applicable governmental permits and approvals for any activity or use
conducted by Declarant, Declarant's guests, representatives or agents that are permitted by this
Restrictive Covenant, and any activity or use shall be undertaken in accordance with all applicable
federal, state, local and administrative agency statutes, ordinances, rules, regulations, orders or
requirements;
3. Land Manager's Duties
(a) Undertake all reasonable actions to prevent the unlawful entry and trespass by
persons whom Land Manager knows are not entitled to access the Restricted Property and whose
activities Land Manager knows or reasonably suspects would be inconsistent with the
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Conservation Values and would violate the permitted uses of the Restricted Property set forth in
this Restrictive Covenant; and
(b) Post and maintain signage in or adjacent to the boundary areas of the Restricted
Property as described in Section 6(d): and
( c) Comply with the terms of this Restrictive Covenant and cooperate with City,
CDFW and USFWS in the protection of the Conservation Values; and
( d) Repair and restore damage to the Restrictive Property directly or indirectly caused
by Land Manager, Land Manager's guests, representatives or agents and third parties; provided,
however, Land Manager, its successors or assigns shall not engage in any repair or restoration
work in the Restricted Property without first consulting with City, CDFW, and USFWS pursuant
to Section 8; and
(e) Obtain any applicable governmental permits and approvals for any activity or use
conducted by Land Manager, Land Manager's guests, representatives or agents that are permitted
by this Restrictive Covenant, and any activity or use shall be undertaken in accordance with all
applicable federal, state, local and administrative agency statutes, ordinances, rules, regulations,
orders or requirements;
(f) Perform in-perpetuity Long-Term Maintenance, Management, and Monitoring set
forth in Section 8 below; and
(g) Perform an annual compliance inspection of the Restricted Property, prepare an
inspection report and make reports available to City, CDFW, and USFWS, upon request.
4. Prohibited Uses.
Any activity on or use of the Restricted Property inconsistent with the Purpose of this
Restrictive Covenant and not reserved as set forth in Section 2 and Section 3 hereof is prohibited.
Without limiting the generality of the foregoing, the following uses by Declarant, and its respective
guests, agents, assigns, employees, representatives, successors are expressly prohibited, except as
otherwise provided herein or unless specifically provided for in Section 5 and Section 6 and any
easements and reservations of rights recorded in the chain of title to the Restricted Property at the
time of this conveyance (as set forth in Exhibit D hereto):
(a) Supplemental watering except for habitat enhancement activities described m
Section 6(b );
(b) Use of herbicides, pesticides, rodenticides, biocides, fertilizers, or other agricultural
chemicals or weed abatement activities, except weed abatement activities necessary to control or
remove invasive, exotic plant species conducted by a herbicide applicator licensed to work within
habitat preserve areas and appropriate for use in or adjacent to vernal pools;
( c) Incompatible fire protection activities, except the fire prevention activities set forth
in Section 6(f);
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( d) Use of off-road vehicles and use of any other motorized vehicles except on existing
roadways and as necessary to restore native plant communities consistent with Section 6.
( e) Livestock grazing or other agricultural activity of any kind;
(f) Recreational activities including, but not limited to, horseback riding, biking,
hunting or fishing;
(g) Residential, commercial, retail, institutional, or industrial uses;
(h) Any legal or de facto division, subdivision or portioning of the Restricted Property,
except transfers in accordance with Section 19 below;
(i) Construction, reconstruction or placement of any building or other improvement,
billboard, or signs except signs permitted in Section 3(a) and Section 6(d);
(j) Depositing, dumping or accumulating soil, trash, ashes, refuse, waste, bio-solids or
any other material;
(k) Planting, introduction or dispersal of non-native or exotic plant or animal species;
(l) Filling, dumping, excavating, draining, dredging, mining, drilling, removing or
exploring for or extraction of minerals, loam, gravel, soil, rock, sand or other material on or below
the surface of the Restricted Property;
(m) Altering the general topography of the Restricted Property, including but not
limited to building of roads, trails, and flood control work;
(n) Removing, destroying, or cutting of trees, shrubs or other vegetation, except as
necessary for (I) emergency fire protection as required by fire safety officials as set forth in Section
6(f), (2) controlling invasive native or non-native plants which threaten the integrity of the habitat,
(3) preventing or treating disease, or ( 4) activities described in Section 2, Section 3, Section 5, or
Section 6;
( o) Manipulating, impounding or altering any natural watercourse, body of water or
water circulation on the Restricted Property, and activities or uses detrimental to water quality,
including but not limited to degradation or pollution of any surface or sub-surface waters; and
(p) Fuel modification zones ( defined as a strip of mowed land or the planting of
vegetation possessing low combustibility for purposes of fire suppression).
5. Declarant's Reserved Rights.
(a) Declarant reserves to itself, to the Land Manager, and to its personal
representatives, heirs, successors, and assigns, all rights accruing from its ownership of the
Restricted Property, including the right to engage in or to permit or invite others to engage in all
uses of the Restricted Property that are consistent with the Purpose of this Restrictive Covenant,
including the permitted activities in Section 6.
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(b) Declarant reserves the right to enforce by means, including, without limitation,
injunctive relief, the terms and conditions of this Restrictive Covenant.
6. Land Manager's Reserved Rights.
(a) Access. Reasonable access through the Restricted Property to adjacent land over
existing roads, or to perform obligations or other activities permitted by this Restrictive Covenant.
In addition, police and other public safety organizations and their personnel may enter the
Restricted Property to address any legitimate public health or safety matter.
(b) Habitat Enhancement Activities. Enhancement of native plant commumt1es,
including the right to plant trees and shrubs of the same type as currently existing on the Restricted
Property, so long as such activities do not harm the vernal pool or upland habitat types onsite. For
purposes of preventing erosion and reestablishing native vegetation, the Land Manager shall have
the right to revegetate areas that may be damaged by the permitted activities under this Section 6,
naturally occurring events or by the acts of persons wrongfully damaging the Natural Condition of
the Restricted Property. Prior to any habitat enhancement activities, Land Manager shall submit
detailed plans to City, CDFW, and USFWS for review and approval. Habitat enhancement
activities shall not be in direct or potential conflict with the preservation of the Natural Condition
of the Restricted Property or the Purpose of this Restrictive Covenant and shall be performed in
compliance with all applicable laws, regulations, permitting requirements and Management Plan.
(c) Vegetation, Debris, and Exotic Species Removal. Removal or trimming of
vegetation downed or damaged due to natural disaster, removal of man-made debris, removal of
parasitic vegetation (as it relates to the health of the host plant) and removal of non-native or
invasive plant or animal species. Vegetation, debris, and invasive plant species removal shall not
be in direct or potential conflict with the preservation of the Natural Condition of the Restricted
Property or the Purpose of this Restrictive Covenant and shall be performed in compliance with
all applicable laws, regulations, and permitting requirements.
(d) Erection and Maintenance of Informative Signage. Erection and maintenance of
signage and other notification features saying "Natural Area Open Space," "Protected Natural
Area," or similar descriptions that inform persons of the nature and restrictions on the Restricted
Property. The erection and maintenance of informative signage shall not be in direct or potential
conflict with the preservation of the Natural Condition of the Restricted Property or the Purpose
of this Restrictive Covenant and shall be performed in compliance with all applicable laws,
regulations, and permitting requirements.
(e) No Interference with Development of Adjoining Property. Notwithstanding
anything set forth herein to the contrary, nothing in this Restrictive Covenant is intended nor shall
be applied to in any way limit Declarant or any of Declarant's successors and assigns from
(1) constructing, placing, installing, and/or erecting any improvements upon the portions of the
Project not constituting the Restricted Property, (2) installing and/or maintaining the subsurface
infrastructure improvements, utility lines, landscaping (including irrigation and runoff), landscape
mitigation, and/or similar non-structural improvements upon portions of the Project not within the
Restricted Property, and/or (3) developing adjoining property for any purposes, except as limited
by any local, state or federal permit requirements for such development and provided that for all
of the above clauses ( 1 ), (2), and (3) neither such activity nor any effect resulting from such activity
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amounts to a use of the Restricted Property, or has an impact upon the Restricted Property, that is
prohibited by Section 3 above.
(f) Fire Protection. The right, in an emergency situation only, to maintain firebreaks
( defined as a strip of plowed or cleared land made to check the spread of a fire), trim or remove
brush, otherwise perform preventative measures required by the fire department to protect
structures and other improvements from encroaching fire. All other brush management activities
shall be limited to areas outside the Restricted Property.
7. Access.
This Restrictive Covenant does not convey a general right of access to the public or a
general right of access to the Restricted Property. In accordance with Section 6(d), Land Manager
shall install and maintain signage at all likely points of entry informing persons of the nature and
restrictions on the Restricted Property. This Restrictive Covenant will allow for access to the
Restricted Property by City, CDFW, USFWS and third-party easement holders of record at the
time of this conveyance at locations designated in easements and reservations of rights recorded
in the chain of title to the Restricted Property at the time of this conveyance, as set forth in Exhibit
D.
8. Long-Term Maintenance, Management, and Monitoring.
In addition to the other terms contained herein, Land Manager shall be responsible for the
maintenance/repair of the Restricted Property in perpetuity to the extent that annual funding is
available pursuant to Section 9. Such long-term maintenance shall consist of the following
activities: (a) regular site inspections, (b) annual removal, by hand, of trash or man-made debris,
( c) annual maintenance of signage and other notification features or similar descriptions that
inform persons of the nature and restrictions on the Restricted Property pursuant to Section 3(b ),
and ( d) habitat enhancement, including invasive species removal. Land Manager shall prepare an
annual management report documenting activities performed under subsections (a) through (d)
above, and shall make reports available to City/CDFW /USFWS upon request.
Land Manager will repair the Restricted Property damaged by any activities prohibited by
Section 4, herein. Declarant will fund repair that is a result of damage pursuant to Section 2( c ),
and Land Manager will fund repair that is a result of damage pursuant to Section 3( d). If Declarant
is deemed liable for the costs of restoration, Declarant shall be provided with a written statement
identifying the basis for such liability and a copy of the Restoration Plan prior to implementation
of that plan.
Land Manager will prepare a Restoration Plan and oversee/monitor such restoration
activities. Prior to implementation, a draft Restoration Plan will be submitted to
City/CDFW /USFWS for review and approval. Upon completion of repair as specified in the
City/CDFW/USFWS-approved Restoration Plan, Land Manager shall prepare and submit a
detailed monitoring report to City/CDFW /USFWS within thirty (30) days of completion of repair.
If Declarant is deemed liable for the costs of restoration, Land Manager shall submit to Declarant
an itemized accounting of the costs incurred, including a copy of all invoices, receipts or other
available supporting documentation. Declarant shall have a period of ninety (90) days to submit
payment.
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9. Endowment
The City established an endowment fund with the San Diego Foundation to be held in trust,
invested and the interest disbursed therefrom to provide funds for the perpetual management,
maintenance, and monitoring of the Property as required under this Restrictive Covenant. City,
CDFW, and USFWS shall be third party beneficiaries of the Fund Agreement for the Poinsettia
Station Vernal Pool Preserve with the right to review and approve any amendments.
10. City, CDFW, USFWS Rights.
To accomplish the Purpose of this Restrictive Covenant, Declarant hereby grants and
conveys the following rights to City, CDFW, and USFWS (but without obligation of the City,
CDFW, and USFWS):
(a) A non-exclusive easement on and over the Restricted Property to preserve and
protect the Conservation Values of the Restricted Property; and
(b) A non-exclusive easement on and over the Restricted Property to enter upon the
Restricted Property to monitor Declarant's compliance with and to otherwise enforce the terms of
this Restrictive Covenant; and
(c) A non-exclusive easement on and over the Restricted Property to prevent any
activity on or use of the Restricted Property that is inconsistent with the Purpose of this Restrictive
Covenant and to require the restoration of such areas or features of the Restricted Property that
may be damaged by any act, failure to act, or any use that is inconsistent with the Purpose of this
Restrictive Covenant; and
( d) All present and future development rights allocated, implied, reserved or inherent
in the Restricted Property; such rights are hereby terminated and extinguished, and may not be
used on or transferred to any portion of the Restricted Property; and
(e) The right to enforce by means, including, without limitation, injunctive relief, the
terms and conditions of this Restrictive Covenant.
11. Enforcement.
(a) Right to Enforce. Declarant, its successors and assigns, grant to City, CDFW, and
USFWS, Department of Justice, and the State Attorney General, a discretionary right to enforce
these restrictive covenants in a judicial or administrative action against any person(s) or other
entity(ies) violating or attempting to violate these restrictive covenants; provided, however, that
no violation of these restrictive covenants shall result in a forfeiture or reversion of title.
(b) Notice.
(1) If City, CDFW, and USFWS, determines Declarant is in violation of the
terms of this Restrictive Covenant or that a violation is threatened,
City/CDFW /USFWS may demand the cure of such violation. In such a case,
City/CDFW /USFWS shall issue a written notice to Declarant (hereinafter "Notice
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of Violation") informing Declarant of the violation and demanding cure of such
violation. A Notice of Violation shall be sent by courier or overnight delivery.
(2) Declarant shall cure the noticed violation within fifteen (15) days of receipt
of said written notice from City, CDFW, and/or USFWS. If said cure reasonably
requires more than fifteen (15) days, Declarant shall, within the fifteen (15) day
period submit to City/CDFW/USFWS for review and approval a plan and time
schedule to diligently complete a cure. Declarant shall complete such cure in
accordance with the approved plan. If Declarant disputes the Notice of Violation,
it shall issue a written notice of such dispute (hereinafter "Notice of Dispute") to
the City/CDFW /USFWS within fifteen (15) days of receipt of written Notice of
Violation. The Notice of Dispute shall be sent by courier or overnight delivery.
(3) If Declarant fails to cure the noticed violation(s) within the time period(s)
described in Section 1 l(b)(2) above, or Section 1 l(c) below, City/CDFW/USFWS
may bring an action at law or in equity in a court of competent jurisdiction to
enforce compliance by Declarant with the terms of this Restrictive Covenant. In
such action, the City/CDFW/USFWS may (i) recover any damages to which they
may be entitled for violation by Declarant of the terms of this Restrictive Covenant,
(ii) enjoin the violation, ex parte if necessary, by temporary or permanent injunction
without the necessity of proving either actual damages or the inadequacy of
otherwise available legal remedies, or (iii) pursue other equitable relief, including,
but not limited to, the restoration of the Restricted Property to the condition in
which it existed prior to any such violation or injury. City/CDFW/USFWS may
apply any damages recovered to the cost of undertaking any corrective action on
the Restricted Property.
( 4) If Declarant provides City/CDFW /USFWS with a Notice of Dispute, as
provided herein, City/CDFW /USFWS shall meet and confer with Declarant at a
mutually agreeable place and time, not to exceed thirty (30) days from the date that
City/CDFW /USFWS receives the Notice of Dispute. City/CDFW /USFWS shall
consider all relevant information concerning the disputed violation provided by
Declarant and shall determine whether a violation has in fact occurred and, if so,
whether the Notice of Violation and demand for cure issued by
City/CDFW /USFWS is appropriate in light of the violation.
(5) If, after reviewing Declarant's Notice of Dispute, conferring with Declarant,
and considering all relevant information related to the violation,
City/CDFW /USFWS determines that a violation has occurred,
City/CDFW /USFWS shall give Declarant notice of such determination in writing.
Upon receipt of such determination, Declarant shall have fifteen ( 15) days to cure
the violation. If said cure reasonably requires more than fifteen (15) days,
Declarant shall, within the fifteen (15) day period submit to City/CDFW/USFWS
for review and approval a plan and time schedule to diligently complete a cure.
Declarant shall complete such cure in accordance with the approved plan.
(c) Immediate Action. If City/CDFW/USFWS, in its reasonable discretion, determines
that circumstances require immediate action to prevent or mitigate significant damage to the
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Conservation Values of the Restricted Property, City/CDFW /USFWS may immediately pursue all
available remedies, including injunctive relief, available pursuant to both this Restrictive Covenant
and state and federal law after giving Declarant at least twenty four (24) hours' written notice
before pursuing such remedies. So long as such twenty four (24) hours' notice is given,
City/CDFW/USFWS may immediately pursue all available remedies without waiting for the
expiration of the time periods provided for cure or Notice of Dispute as described in Section
l l(a)(2). The written notice pursuant to this paragraph may be transmitted to Declarant by
facsimile. The rights of City/CDFW /USFWS under this paragraph apply equally to actual or
threatened violations of the terms of this Restrictive Covenant. Declarant agrees that the remedies
at law for City/CDFW /USFWS for any violation of the terms of this Restrictive Covenant are
inadequate and that City/CDFW/USFWS shall be entitled to the injunctive relief described in this
section, both prohibitive and mandatory, in addition to such other relief to which
City/CDFW/USFWS may be entitled, including specific performance of the terms of this
Restrictive Covenant, without the necessity of proving either actual damages or the inadequacy of
otherwise available legal remedies. The remedies described in this Section l l{c) shall be
cumulative and shall be in addition to all remedies now or hereafter existing at law or in equity.
(d) Costs of Enforcement. Any costs incurred by City/CDFW /USFWS in enforcing
the terms of this Restrictive Covenant against Declarant including, but not limited to, costs of suit
and, any costs of restoration necessitated by Declarant' s violation or negligence under the terms
of this Restrictive Covenant shall be borne by Declarant, subject to California Civil Code section
815.
( e) Enforcement Discretion. Enforcement of the terms of this Restrictive Covenant
shall be at the discretion of City/CDFW /USFWS. Any forbearance by City/CDFW /USFWS to
exercise rights under this Restrictive Covenant in the event of any breach of any term of this
Restrictive Covenant by Declarant shall not be deemed or construed to be a waiver by
City/CDFW /USFWS of such term or of any subsequent breach of the same or any other term of
this Restrictive Covenant or of any of the rights of City/CDFW /USFWS under this Restrictive
Covenant. No delay or omission by City/CDFW/USFWS in the exercise of any right or remedy
upon any breach by Declarant shall impair such right or remedy or be construed as a waiver.
(f) Acts Beyond Declarant's Control. Nothing contained in this Restrictive Covenant
shall be construed to entitle City/CDFW /USFWS to bring any action against Declarant for any
injury to or change in the Restricted Property resulting from:
(1) Any natural cause beyond Declarant's control, including without limitation,
fire, flood, storm, and earth movement; or
(2) Any prudent action taken by Declarant under emergency conditions to
prevent, abate, or mitigate significant injury to persons and/or the Restricted
Property resulting from such causes.
12. Limitations on Liabilities.
Declarant agrees City, CDFW, and USFWS shall not have any duty or responsibility for
the operation, upkeep, or maintenance of the Restricted Property, the monitoring of hazardous
conditions thereon, or the protection of Declarant, the public or any third parties from risks relating
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to conditions on the Restricted Property. Declarant, its successor or assign, and Land Manager
and its successor or assign remain solely responsible for obtaining any applicable governmental
permits and approvals for any activity or use permitted by this Restrictive Covenant, and any
activity or use shall be undertaken in accordance with all applicable federal, state, local and
administrative agency statutes, ordinances, rules, regulations, orders and requirements.
13. Taxes.
Declarant, its successors or assigns shall pay before delinquency all taxes, assessments,
fees, and charges of whatever description levied on or assessed against the Restricted Property by
competent authority, including any taxes imposed upon, or incurred as a result of, this Restrictive
Covenant, and agrees to furnish City, CDFW, and USFWS with satisfactory evidence of payment
upon request.
14. No Hazardous Materials Liability.
(a) Declarant represents and warrants that it has no knowledge of any release or
threatened release of Hazardous Materials (defined below) in, on, under, about or affecting the
Restricted Property.
(b) Despite any contrary provision of this Restrictive Covenant, the parties do not
intend this Restrictive Covenant to be, and this Restrictive Covenant shall not be, construed such
that it creates in or gives City, CDFW, and USFWS any of the following:
(1) The obligations or liabilities of an "owner" or "operator," as those terms are
defined and used in Environmental Laws (defined below), including, without
limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended (42 U.S.C. Section 9601 et seq.; hereinafter,
"CERCLA"); or
(2) The obligations or liabilities of a person described in 42 U.S.C. Section
9607(a)(3) or (4); or
(3) The obligations of a responsible person under any applicable Environmental
Laws; or
(4) The right to investigate and remediate any Hazardous Materials associated
with the Restricted Property; or
(5) Any control over Declarant's ability to investigate, remove, remediate or
otherwise clean up any Hazardous Materials associated with the Restricted
Property.
(c) The term "Hazardous Materials" includes, without limitation, (a) material that is
flammable, explosive or radioactive; (b) petroleum products, including by-products and fractions
thereof; and ( c) hazardous materials, hazardous wastes, hazardous or toxic substances, or related
materials defined in CERCLA, the Resource Conservation and Recovery Act (42 U.S.C. Section
6901 et seq.); the Hazardous Materials Transportation Act (49 U.S.C. Section 5101 et seq.); the
Hazardous Waste Control Law (California Health & Safety Code Section 25100 et seq.); the
11 CA 09/24/2013
Assessor's Parcel Number:
Project Number and Name:
Hazardous Substance Account Act (California Health & Safety Code Section 25300 et seq.), and
in the regulations adopted and publications promulgated pursuant to them, or any other applicable
federal, state or local laws, ordinances, rules, regulations or orders now in effect or enacted after
the date of this Restrictive Covenant.
(d) The term "Environmental Laws" includes, without limitation, any federal, state,
local or administrative agency statute, ordinance, rule, regulation, order or requirement relating to
pollution, protection of human health or safety, the environment or Hazardous Materials.
Declarant represents, warrants and covenants to City, CDFW, and USFWS that activities upon and
use of the Restricted Property by Declarant, its agents, employees, invitees and contractors will
comply with all Environmental Laws.
15. Additional Easements.
Declarant shall not grant any additional easements, rights of way or other interests in the
surface or subsurface of the Restricted Property ( other than a security interest that is subordinate
to this Restrictive Covenant), or grant or otherwise abandon or relinquish any water rights relating
to the Restricted Property, without first obtaining the written consent of City, CDFW, and USFWS.
City, CDFW, and USFWS may withhold such consent if it determines that the proposed interest
or transfer is inconsistent with the Purpose of this Restrictive Covenant or will impair or interfere
with the Conservation Values of the Restricted Property. This Section shall not prohibit transfer
of a fee or leasehold interest in the Restricted Property that is subject to this Restrictive Covenant
and complies with Section 19 below. Declarant, its successors and assigns shall record any
additional easements or other interests in the Restricted Property approved by the City, CDFW,
and USFWS, in the official records of San Diego County, California and provide a copy of the
recorded document to the City, CDFW, and USFWS.
16. Hold Harmless.
Declarant shall hold harmless, protect and indemnify City and its, officials, directors,
employees, agents, contractors, and representatives and the heirs, personal representatives,
successors and assigns of each of them ( each a "City Indemnified Party" and, collectively, "City's
Indemnified Parties") from and against any and all liabilities, penalties, costs, losses, damages,
expenses (including, without limitation, reasonable attorneys' fees and experts' fees), causes of
action, claims, demands, orders, liens or judgments (each a "Claim" and, collectively, "Claims"),
arising from or in any way connected with: injury to or the death of any person, or physical damage
to any property, resulting from any act, omission, condition, or other matter related to or occurring
on or about the Restricted Property, regardless of cause, except for any Claim arising from the sole
negligence or willful misconduct of the Land Manager (including its agents, assigns, contractors
and employees) or any of the City's Indemnified Parties. If any action or proceeding is brought
against any of City's Indemnified Parties by reason of any such Claim, Declarant shall, at the
election of and upon written notice from any of the City's Indemnified Parties defend such action
or proceeding with counsel reasonably acceptable to the Declarant and City's Indemnified Parties,
or reimburse the party for all charges reasonably incurred for services, including attorneys' fees,
in defending the action or proceeding.
17. Amendment.
12 CA 09/24/2013
Assessor's Parcel Number:
Project Number and Name:
Declarant may amend this Restrictive Covenant only after written concurrence by City,
CDFW, and USFWS. Any such amendment shall be consistent with the Purpose of this Restrictive
Covenant and shall not affect its perpetual duration. Declarant shall record any amendments to
this Restrictive Covenant approved by City, CDFW, and USFWS in the official records of San
Diego County, California, and shall provide a copy of the recorded document to City, CDFW, and
USFWS.
18. Recordation.
Declarant, its successor or assign shall promptly record this instrument in the official
records of San Diego County, California, and provide a copy of the recorded document to City,
CDFW, and USFWS.
19. Assignment and Subsequent Transfers.
(a) Declarant agrees to incorporate the terms of this Restrictive Covenant in any deed
or other legal instrument by which Declarant divests itself of any interest in all or a portion of the
Restricted Property. Declarant, its successor or assign agrees to (i) incorporate by reference to the
title of and the recording information for this Restrictive Covenant in any deed or other legal
instrument by which each divests itself of any interest in all or a portion of the Restricted Property,
including, without limitation, a leasehold interest and (ii) give actual notice to any such transferee
or lessee of the existence of this Restrictive Covenant. Declarant, its successor or assign agrees to
give written notice to City, CDFW, and USFWS of the intent to transfer any interest in the
Restricted Property at least thirty (30) days prior to the date of such transfer. Any subsequent
transferee shall be deemed to have assumed the obligations of this Restrictive Covenant and to
have accepted the restrictions contained herein. The failure of Declarant, its successor or assign
to perform any act provided in this Section shall not impair the validity of this Restrictive Covenant
or limit its enforceability in any way.
(b) From and after the date of any transfer of all or any portion of the Restricted
Property by Declarant and each transfer thereafter, (i) the transferee shall be deemed to have
assumed all of the obligations of Declarant as to the portion transferred, as set forth in this
Restrictive Covenant, (ii) the transferee shall be deemed to have accepted the restrictions contained
herein as to the portion transferred, (iii) the transferor, as applicable, shall have no further
obligations hereunder except for the obligations set forth above in this paragraph and pursuant to
Section 26, and (iv) all references to Declarant in this Restrictive Covenant shall thereafter be
deemed to refer to such transferee.
20. Notices.
Except as otherwise specified herein, 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 or sent by first class mail, postage prepaid, addressed as follows:
13 CA 09/24/2013
To Declarant:
To:
Waters End Home Owners Association
2131 Las Palmas Dr. Ste A
Carlsbad, CA 92011
City of Carlsbad
1635 Faraday A venue
Carlsbad, CA 92008
Assessor's Parcel Number:
Project Number and Name:
California Dept. of Fish and Wildlife, Region 5
3883 Ruffin Road
San Diego, CA 92123
US Fish and Wildlife Service
2177 Salk Avenue, Suite 250
Carlsbad, CA 92008
FAX 760-431-5902
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.
21. Controlling Law.
The laws of the United States and the State of California shall govern the interpretation and
performance of this Restrictive Covenant.
22. Liberal Construction.
Any general rule of construction to the contrary notwithstanding, this Restrictive Covenant
shall be liberally construed in favor of the deed to effect the purpose of this Restrictive Covenant
and the policy and purpose California 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
Restrictive Covenant that would render the provision valid shall be favored over any interpretation
that would render it invalid.
23. Severability.
If a court of competent jurisdiction voids or invalidates on its face any provision of this
Restrictive Covenant, such action shall not affect the remainder of this Restrictive Covenant. If a
court of competent jurisdiction voids or invalidates the application of any provision of this
Restrictive Covenant to a person or circumstance, such action shall not affect the application of
the provision to other persons or circumstances.
14 CA 09/24/2013
24. No Forfeiture.
Assessor's Parcel Number
Project Number and Name
Nothing contained herein will result in a forfeiture or reversion of Declarant's title in any
respect.
25. Successors.
The covenants, terms, conditions, and restrictions of this Restrictive Covenant 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 Restricted Property.
26. Termination of Rights and Obligations.
A party's rights and obligations under this Restrictive Covenant terminate upon transfer
of the party's interest in the Restrictive Covenant or Restricted Property, except that liability for
acts or omissions occurring prior to transfer shall survive transfer.
27. 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 construction or interpretation.
28. City, CDFW, and USFWS, Benefited Parties
Except for Section 255, the terms of this Restrictive Covenant are for the benefit of the
City, CDFW, and USFWS only and are not for the benefit of any other parties.
IN WITNESS WHEREOF Declarant has executed this Restrictive Covenant the day and
year first above written.
''Declarant"
B y:~Je.___,__'-A,__,1.r.,, __ ~M~'/-,=·1-:.-,_1~c.,~1/--~=f-=.o __ ~w-'--'a=-=-t -=e-=r-=s'----'E=n=d=---=H om e owners As s o c i at ion
r ~,,,4 •
Name:~-,.., -"'-~:C..,4'---------
Title: 'ptE;"5/Q..eoj---
Date: 11/zq/;t
By: --~ c\ i~ /=-;c.....,_k+-''J~( ....:...k..,____ _____ _
Name: -~~ ---Title: I r(c\ > "-'-e~-----_; _________ _
Date:
16 CA 09/24/2013
Assessor's Parcel Number:
Project Number and Name:
CITY OF CARLSBAD
APPROVED AS TO FORM:
CELIA A. BREWER, City Attorney
By(j,~o .. ._Q 4
7\ssistant City Attorney
16 CA 09/24/2013
Assessor's Parcel Number:
Project Number and Name:
EXHIBIT A -LEGAL DESCRIPTION
17 CA 02/04/13
EXHIBIT "A"
LEGAL DESCRIPTION
VESTING: WATERS END HOMEOWNERS ASSOCIATION
APN: 214-610-58
CONSERVATION EASEMENT
THAT PORTION OF LOT 227 OF CARLSBAD TRACT CT 00-16, WATERS END, IN THE
CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING
TO MAP THEREOF NO. 14407, RECORDED JUNE 19, 2002 AS FILE NO. 2002-0519005
IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, DESCRIBED
AS FOLLOWS:
COMMENCING AT THE SOUTHWESTERLY CORNER OF SAID LOT 227;
THENCE ALONG THE WESTERLY LINE OF SAID LOT 227 NORTH 20°27'52" WEST
267.00 FEET TO THE TRUE POINT OF BEGINNING;
THENCE LEAVING SAID WESTERLY LINE NORTH 27°57'29" EAST 52.36 FEET TO THE
BEGINNING OF A NON-TANGENT CURVE CONCAVE WESTERLY, HAVING A RADIUS
OF 1035.00 FEET, A RADIAL LINE TO WHICH BEARS NORTH 69°44'16" WEST;
THENCE NORTHERLY ALONG SAID NON-TANGENT CURVE THROUGH A CENTRAL
ANGLE OF 7°04'26" AN ARC LENGTH OF 127.78 FEET TO THE BEGINNING OF A
COMPOUND CURVE CONCAVE WESTERLY, HAVING A RADIUS OF 400.00 FEET;
THENCE NORTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF
12°24'39" AN ARC LENGTH OF 86.64 FEET TO THE BEGINNING OF A COMPOUND
CURVE CONCAVE WESTERLY, HAVING A RADIUS OF 30.00 FEET;
THENCE NORTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF
19°45'24" AN ARC LENGTH OF 10.34 FEET;
THENCE TANGENT TO SAID CURVE NORTH 18°58'45" WEST 3.89 FEET;
THENCE SOUTH 73°20'24" WEST 4.70 FEET;
THENCE NORTH 22°04'07" WEST 10.76 FEET;
THENCE NORTH 69°17'22" EAST 5.13 FEET TO THE BEGINNING OF A NON-
TANGENT CURVE CONCAVE SOUTHWESTERLY, HAVING A RADIUS OF 125.00
FEET, A RADIAL LINE TO WHICH BEARS NORTH 63°32'25" EAST;
THENCE NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF
16°49'32" AN ARC LENGTH OF 36.71 FEET TO THE BEGINNING OF A COMPOUND
CURVE CONCAVE SOUTHWESTERLY, HAVING A RADIUS OF 1275.00 FEET;
THENCE NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF
11 °41 '43" AN ARC LENGTH OF 260.25 FEET TO THE BEGINNING OF A COMPOUND
CURVE CONCAVE SOUTHWESTERLY, HAVING A RADIUS OF 200.00 FEET;
THENCE NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF
11 °02'27" AN ARC LENGTH OF 38.54 FEET TO SAID WESTERLY LINE OF LOT 227;
THENCE ALONG SAID WESTERLY LINE OF LOT 227 SOUTH 20°27'52" EAST 531.13
FEET TO THE TRUE POINT OF BEGINNING.
CONTAINING 1.15ACRES MORE OR LESS.
ATTACHED HERETO AND MADE A PART HEREOF IS A PLAT LABELED EXHIBIT 'B'.
THIS REAL PROPERTY DESCRIPTION HAS BEEN PREPARED BY ME, OR UNDER MY
DIRECTION, IN CONFORMANCE WITH THE PROFESSIONAL LAND SURVEYORS
ACT.
SIGNATURE -~~ 2/..L_
MICHAEL SCHLUMPBERGER, LS 7790
DATE Oc.io6ec Z.? ,::o/,9 '
Assessor's Parcel Number:
Project Number and Name:
EXHIBIT B -PLAT MAP
18 CA 02/04/13
A.T. & S.F.
EXHIBIT UB"
AVENIDA ENCINAS
[ij]~[P i] ~t@(0)1
W~ilElR1$ [E[M[D)
I
RAILROAD
THIS PLAT WAS PREPARED BY ME OR UNDER MY DIRECTION IN CONFORMANCE WITH
~~SSI_ONAL j.!,ND SURVEYOR'S ACT
-----~/ ~ a,/c:?6«:: u Za/8
MICHAEL L SCHLUMPBERGER, PLS 7790
Right-Of-Way Engineering Services, Inc.
Land Surveying
615 South Tremont street · Oceanside, CA 92054
(760) 637-2700 roweroweng.net
Job No: 1602-0008-07
SEE SHEET 2
7
uJ 2
<(
--'
<(
i== ,_
uJ (/)
2
0
Q
P.O.C.
SW'LY COR
LOT 227
NOTE: BEARINGS AND DISTANCES SHO'MII
HEREON ARE COMPILED FROM RECORD
DATA SHOWN ON MAP 14407
CITY OF CARLSBAD
VESTING: WATERS END HOMEOWNERS ASSOCIATION
DATE: FEBRUARY 12, 2016 SHEET 1 OF 2
CURVE
C1
C2
LINE TABLE
LINE BEARING LENGTH
L1 N1a·5a•45•w 3.89'
L2 s73•20•24•w 4.70'
L3 N22•04'07•w 10.76'
l4 N69i1•22•E 5.13'
CURVE TABLE
DELTA RADIUS LENGTH
19'45'24• 30.00' 10.34'
15•49•32• 125.00' 36.71'
EXHIBIT u B"
[Ml]~[l» "U 4}4}(0)7!
~~1r[E[R1~ [E~[O)
PUBLIC PEDESTRIAN
EASEMENT DEDICATED
ON MAP 14407
A. T. & S.F. RAILROAD
EASEMENT FOR PUBLIC UTILITY GRANTED TO THE
PACFIC TELEPHONE AND TELEGRAPH COMPANY
RECORDED MARCH 29. 1954 AS DOCUMENT NO.
40574 IN BOOK 5186 PAGE 560 O.R.
1///J DENOTES AREA OF CONSERVATION EASEMENT
1.15 ACRES MORE OR LESS
EASEMENT FOR PUBLIC UTILITY GRANTED TO
THE PACFIC TELEPHONE AND TELEGRAPH
COMPANY RECORDED OCTOBER 25, 1941 IN
BOOK 1269, PAGE 3 O.R.
NOTE: BEARINGS ANO DISTANCES SHOWN
HEREON ARE COMPILED FROM RECORD
DATA SHOWN ON MAP 14407
CITY OF CARLSBAD
VESTING: WATERS END HOMEOWNERS ASSOCIATION
DA TE: FEBRUARY 12. 2016 SHEET 2 OF 2
Assessor's Parcel Number:
Project Number and Name:
EXHIBIT C-CURRENT NATURAL CONDITION REPORT
On file in the Office of the City Clerk.
19 CA 02/04/13
Assessor's Parcel Number:
Project Number and Name:
EXHIBIT D-PRELIMINARY TITLE REPORT
20 CA 02/04/13