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2002-441160Recording Requested By: City of Encinitas When Recorded Mail To: City Clerk City of Encinitas 505 S. Vulcan Avenue Encinitas, CA 92024 FOR THE BENEFIT OF THE CITY '2002-0441160 MAY 25, 2002 4:29 PM DFFIClOI RECOR1)8 ~ DIEGO COUNTY REIIIRI)ER'S OFFICE GREGORY ,~. SMITH, COIlK[Y I~CORDER Og: NA SPACE ABOVE FOR RECORDER'S USE GRANT OF BIOLOGICAL HABITAT OPEN SPACE PRESERVATION EASEMENT. THIS COVENANT DOCUMENT REPLACES COVENANT DOCUMENT 112001-0748546 RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY ON OCTOBER 16, 2001. Assessor's Parcel No.: 264-222-04 Project Nos.: 01-031 EN W.O. No.: 7134-G William A. Craven, Jr., Gerald McKeown, Foster K. Brown, Betty J. Brown, and Gregory Brown, hereinafter called GRANTORS, do hereby grant, convey and dedicate a biological habitat open space easement to the CITY OF ENCINITAS, State of California, hereinafter called GRANTEE, with terms, covenants and conditions as follows: An 3.0-acre biological habitat preservation open space easement over, upon, across, and under the lands hereinafter described on Exhibit "A" attached hereto and as shown on Exhibit "B" attached hereto, hereinafter referred to as the subject land, to wit: (1) Grantor conveys a perpetual easement for biological habitat open space over, upon, across and under the subject land consisting of the western portion of the subject property, as shown on the attached Exhibit B, adjacent to the western City Limit line of the City of Encinitas not disturbed by the proposed grading. No building, structure or other thing whatsoever shall be constructed, erected, placed or maintained on the subject land, nor shall grading, landscaping or brush removal be performed, except as is permitted by the approved Concept Grading Plan, Case /tO 1-031 EN, and the adopted Mitigated Negative Declaration issued pursuant to the Municipal Code of the City of Encinitas, as said approval was issued by Declaration of the Community Development Director on October 5, 2001, or as said approval may be hereinafter amended or modified pursuant to the Municipal Code of the City of Encinitas. At the time of development of the developable portion of said lot, a delineation fence shall be installed to clearly separate the development from the open space corridor. (2) Grantor conveys the perpetual right, but not the obligation to enter upon the subject land and remove any buildings, structures or other things whatsoever constructed, erected, placed or maintained on the subject land contrary to any term, covenant or condition of this easement and to do any work necessary to eliminate the effects of any excavation or grading or placement of Cd/mrh/g:cov:01031ENReplacement.cov 1 sand, soil, rock or gravel or any other material placed on the subject land contrary to any term, covenant or condition of this easement. (3) Grantor covenants and agrees for itself and its successors and assigns as follows: (A) That it shall not erect, construct, place or maintain, or permit the erection, construction, placement, or maintenance of any building or structure or other thing whatsoever on the subject land, nor shall grading, landscaping or brush removal be performed, other than such buildings, structures, grading, landscaping or other things as is permitted by the approved Concept Grading Plan, Case #01~ 031 EN, and the adopted Mitigated Negative Declaration issued pursuant to the Municipal Code of the City of Encinitas, as said approval was issued by Declaration of the Community Development Director on October 5, 2001, or as said approval may be hereinafter amended or modified pursuant to the Municipal Code of the City of Encinitas. (B) That, except for those portions authorized by the adopted Mitigated Negative Declaration issued pursuant to the Municipal Code of the City of Encinitas, Case #01-031 EN, for grading and landscaping, it shall not use the subject land for any purpose except as open space to permanently maintain the biological habitat of the western portion of the property, and no clearing or removal of any vegetation shall be permitted except brush clearing for fire protection purposes by written order of the Encinitas Fire Protection Department. (c) That it shall not excavate or grade or permit any excavating or grading to be done or, place or allow to be placed any sand, soil, rock, gravel or other material whatsoever on the subject land without the written permission of the City of Encinitas or its successors or assigns; provided, however, that grantor may excavate, grade or place sand, soil, rock or gravel or other material on the subject land as is permitted by the adopted Mitigated Negative Declaration issued pursuant to the Municipal Code of the City of Encinitas, as said permit was issued by Declaration of the Community Development Director on October 5, 2001, or as said approval may be hereinafter amended or modified pursuant to the Municipal Code of the City of Encinitas. (D) That the terms, covenants and conditions set forth herein may be specifically enforced or enjoined by proceedings in the Superior Court of the State of California. It is agreed that the grant of this easement and its acceptance by the City of Encinitas shall not authorize the public or any members thereof to use or enter upon all or any portion of the subject land, it being understood that the purpose of this easement is solely to restrict the use to which the subject land may be put. Pursuant to the approval by the Community Development Director of the application for environmental review for proposed grading, Case #01-031 EN, the biological habitat preservation open space easement required by the adopted Mitigated Negative Declaration for this project shall be implemented during the planning and construction of the approved project. The following mitigation measures were required: 1.) Dedication and recordation of an open space easement over 3.0 acres of the westerly portion of Parcel No. 1 for protection of coastal Cd/mrh/g:cov :01031ENReplacement.cov 2 sage scrub habitat to the satisfaction of the Community Development Director; 2.) Diegan coastal sage scrub that is occupied by the coastal California gnatcatcher shall not be removed during the breeding season (February 15 through August 1, or until all nesting is completed). Demonstration of absence of gnatcatchers shall require surveys pursuant to USFWS protocol, with clearing of unoccupied habitat requiring the concurrence of the wildlife agencies. Construction activities shall not take place within 500 feet of an active gnatcatcher nest and shall not exceed 60 dB(A)Leq at the outside perimeter of gnatcatcher habitat during the breading season: 3.) At the time of development of a single-family dwelling on the developable portion of said lot, a delineation fence shall be installed to clearly separate the development from the open space corridor and identify the boundary of the easement. Date: This easement shall bind the owner and its successors and assigns. Grantor:~ Date: Date: Date: Date: Signature of Grantors shall be notarized. The appropriate acknowledgements shall be attached. I certify on behalf of the Community Development Director of the City of Encinitas, pursuant to authority conferred by the Mitigated Negative Declaration adopted by the Community Development Director on October 5, 2001, that the City of Encinitas consents to the making of the foregoing Grant of Biological Habitat Open Space Easement and consents to recordation thereof by its duly authorized officer. Date: ~' ~O'O~ By: ~ ~/Patrick Murphy Community Development Director City of Encinitas Cd/mrh/g:cov:01031ENReplacement.cov 3 STATE OF CALIFORNIA COUNTY OF San Diego. On March 11, 2001 before me, Darlene F. Tighe a Notary Public in and for said State, personally appeared Foster K. Brown, Betty J. Brown and Gregory Brown personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Comm. # 1253362 NOTARY H)BLIC-CALIFORNIA SaA Diego County (This area for official notarial seal/ ESCROW NO.: TITLE ORDER NO.: STATE OF CALIFORNIA cou. o. before me, - ~ ~ [~a Nota Public in and for said State,~eZ~~ally appeared ~,~.;~'~-,~-'ly Ar, ow,, [u ,,~ (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature __ ESCROW NO.: .(~~ Comm.# 1178139 ~ (This area for official notarial seal) TITLE ORDER NO.: before me, a Notary Public in and for said State, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signa~ ESCROW NO. 0154286-SL TITLE ORDER NO. 145683-07 (This area for official notarial seal) EXHIBIT A THAT PORTION OF PARCEL 1 Of PARCEL MaP NO. 14459 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY ON SEPTEMBER 11, 1986 AS FILE NO. 86-399650 OF OFFICIAL RECORDS, CITY OF ENClNITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHWESTERLY CORNER OR SAID PARCEL; THENCE NORTH 03'04'21" WEST, ALONG THE WESTERLY BOUNDARY, 552.99 FEET TO THE NORTHWEST CORNER OF SAID PARCEL; THENCE NORTH 87'00'12" EAST, ALONG THE NORTHLY BOUNDARY OF PARCEL 1, 291.38 FEET TO THE NORTHEASTERLY CORNER OF SAID PARCEL; THENCE SOUTH 12'56'50" WEST, ALONG THE EASTERLY BOUNDARY OF PARCEL 1, 172.74 FEET; THENCE CONTINUING SOUTH 12'56'50" WEST, DEPARTING SAID BOUNDARY, 22.07 FEET; THENCE SOUTH 04'35'56" WEST 255.16 FEET; THENCE SOUTH 19'24'22" EAST 140;00 FEET TO THE SOUTHERLY BOUNDARY OF SAID PARCEL 1; THENCE SOUTH 86'56'46" WEST, ALONG SAID BOUNDARY, 246.00 FEET TO THE POING OF BEGINNING. CONTAINING 131,508 SQUARE FEET, 5.014 ACRES. GA'~Y H~GILL, -L.~. 58~1 FILE NAME: BRWN-LGL.DWG PLOT DATE: 05-51-01 EXHIBIT B NOTES PROPOSED PRIVATE ROAD EASEMENT PER P.M. 14459. BEARINGS &: DISTANCES PER PM 14459 OR CALCULATED THEREFROM. AREA DESCRIBED IN EXHIBIT A. N87'OO'12"E 291.38' EXPIRES ~2/3~/0,~/..,~// AGILL, [.,~ 5871 / / SCALE: 1"=80' P.O.B. 246.00' FILE NAME: BRWN-LGL. DWG PLOT DATE: 0,3-31-01 S86'56'46"W 502.04' 256.04' S03'03'14"E DUSTY TRAIL