2009-180718
CEO # 2009-0 1 807 1
Recording Requested By and
I IIIIIII IIII VIII VIII VIII VIII VIII VIII VIII VIII VIII VIII IIII IIII
When Recorded Mail To: )
APR 09, 2009 10:08 AM
OFFICIAL RECORDS
;,4N DIEGO COLIN TY RECORDER'S OFFICE
~U ) DA',:ID L. BUTLER. COL INT`i' RECORDER
L6 I City Clerk ) FEES: 16.00 1~,A`':
OC NA
City of Encinitas ) PAGES:
505 S. Vulcan Avenue )
r , Encinitas, CA 92024 ) 1 Illill Bill Hill Bill 111111 Hill Hill Bill Hill Rill Hill Hill Bill Rill III IIII
FOR THE BENEFIT OF THE CITY) SPACE,
GRANT OF BIOLOGICAL PRESERVATION OPEN SPACE EASEMENT
Assessor's Parcel✓ Case No. 06-165 TP"INBA/DR/CDP
No. 216-122-14 & 44
Bella Vista Encinitas, LLC, A California Limited Liability Company, ("GRANTOR' hereinafter),
A(\~ does hereby grant, convey and dedicate an open space easement to the CITY OF ENCINITAS, State of
California ("CITY" hereinafter), with terms, covenants and conditions as follows:
An 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 open space over, upon, across and under the
subject land consisting of the "Biological Open Space Easement" as shown on the approved
project drawings for Case No. 06-165 TPM/MINBA/DR/CDP. No building, structure or
other thing whatsoever shall be constructed, erected, placed or maintained on the subject
land, nor shall grading be performed, except as is permitted by Case No. 06-165
TPM/MINBA/DR/CDP, as said permit was issued by Resolution No. PC 2008-10 of the
Planning Commission on March 6, 2008, or as said permit may be hereinafter amended or
modified pursuant to the Municipal Code of the City of Encinitas.
(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 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 be performed, other than such
buildings, structures, grading, or other things as are permitted by Case No. 06-165
TPM/MIN/BA/DR/CDP, as said permit was issued by Resolution No. PC 2008-10 of
Planning Commission on March 6, 2008, or as said permit may be hereinafter
amended or modified pursuant to the Municipal Code of the City of Encinitas.
PBD/AM/g:\Covenant\06-165tpm osesmt 1
(B) That, except for those portions authorized by Case No. 06-165
TPM/MINBA/DR/CDP for grading and landscaping, it shall not use the subject land
for any purpose except as open space to permanently maintain the biological/riparian
forest area. Exotic plant species not to be used include those species listed on Lists
A&B of the California Invasive Plant Council's (Cal-IPC) list of "Exotic Pest Plants
of Greatest Ecological Concern in California as of October 1999". This list includes
such species as pepper trees, pampas grass, fountain grass, ice plant, myoporum,
black locust and other such species. Landscaping shall not use plants that require
intensive irrigation, fertilizers or pesticides adjacent to preserve areas and water
runoff from landscaped areas shall be directed away from the biological conservation
open space area. The property owner shall be responsible for any necessary removal
of non-native invasive vegetation within the open space easement.
(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 CITY 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 Case No. 06-165
TPM/MINBA/DR/CDP, as said permit was issued by Resolution No. PC 2008-10 of
the Planning Commission on March 6, 2008 or as said permit may be hereinafter
amended or modified pursuant to the Municipal Code of the City of Encinitas.
(D) All outdoor lighting shall be directed away from the biological and steep slope open
space easement.
(E) 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 CITY 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. This easement shall bind the owner and its successors and assigns.
PBD/AM/g:\Covenant\06-165tpm osesmt 2
GRANTOR:
Dated by
T anfor , ecretary, Bella Vista Encinitas,
LLC.
Dated by
Chris Dreher, Chie xecutive fficer, Bella
Vista Encinitas, LLC.
(Notarizations of GRANTORS' signatures are attached.)
CITY OF ENCINITAS:
I certify on behalf of the Director of the Planning and Building Department of the City of Encinitas,
pursuant to authority conferred by Resolution No. PC 2008-10 of said Director adopted on March 6,
2008, that the City of Encinitas consents to the making of the foregoing Grant of Biological/Riparian
Preservation Open Space Easement and consents to recordation thereof by its duly authorized officer.
Dated Z by
Patrick Murphy
(Notarization not required) Director, Planning and Building Department
PBD/AM/g:\Covenant\06-165tpm osesmt 3
SUBORDINATION AGREEMENT
WHEREAS, those parties concerned, desire to have the covenant recorded on
~Id3-5- as Instrument No. .9oo!57-.o f a3 of official records,
subordinated to Easement for the grant of Biological Preservation Open Space
Easement ("DOCUMENT" hereinafter).
Now, therefore, for valuable consideration, the receipt of which is hereby
acknowledged, the undersigned BENEFICIARY or TRUSTEE hereby waives the
priority of said Deed of Trust in favor of said DOCUMENT to the same extent as if
said DOCUMENT had been executed prior to said Deed of Trust.
BENEFICIARY or TRUSTEE
Print Name Signat
e dzx 4-1 ~ e-- /I C- 0-yu
Title ltr lei AG 3Ac Date
Signature of Beneficiaries/Trustees to be notarized.
Attach the appropriate acknowledgments.
I certify on behalf of the City Council of the City of Encinitas, pursuant to authority
conferred by Resolution of said Council adopted on November 9, 1994 that the City
of Encinitas accepts and consents to the making of the foregoing Subordination
Agreement and consents to recordation thereof by its duly authorized officer.
a P) - I t--, Welog
M. M Peter Cota-Robles Date
Director of Engineering Services
City of Encinitas
CALIFORNIA ALL-PURPOSE
CERTIFICATE OF ACKNOWLEDGMENT
State of California
County of C A/i~
On 3 a 0 7-00? before me, L
(Here insert name and title oft officer) J
personally appeared I>WL"Eyej
who roved to me on the ba sis of satisfactory evidence to be s whose name is re subscribed to
the within instrument an knowledged to me th h he/they executed the same i is er/their authorized
capacity(s), and that hi er/their signature on the instrument the person(j, or t e entity upon behalf of
which the person(K acte , executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph
is true and correct.
OmM SEAL
_ SORE Ll BORHAN
PUguC•CAUFORNI4
WITNESS my and and official seal. SAN NOTARY DIEGO COUNTY
COMM. NO. 1593253
(Notary Seat MY COMM. EXP. JUNE 29,2M9
Signature of Notary Public
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2008 Version CAPA v12.10.07 800-873-98¢5 www.NotaryClasses.com -
CERTIFICATE OF ACKNOWLEDGMENT
State of California
County of 7a J~ ~a }
20 before me, L_ , personally
appeare T who 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.
I certify under PENALTY OF PURJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
CommWgw • 1742166
C ~r i\ Notary ►ubNC - CWHO"do
Signature i _ km Now coy" (Seal)
~Camm.epl~ ~orc X11
CERTIFICATE OF ACKNOWLEDGMENT
State of California
County of
}
On 20 before me, personally
appeared- c ho 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.
I certify under PENALTY OF PURJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal. C.
7onwranion # 1762136
rAIE
Nakuy ►ubNc - CoNfo"06
Non DNpo Courow
Signature M~rconmlpwoNC~1t (Seal)
__J
EXHIBIT "A"
BIOLOGICAL & STEEP SLOPE OPEN SPACE EASEMENT LEGAL DESCRIPTION
A portion of the Remainder Parcel of Parcel Map No. 19619, according to map thereof, filed in
the office of the San Diego County Recorder, December 8, 2004 as file no. 2004-1154727, and
of the South Half of the Southeast Quarter of the Southwest Quarter of the Southwest Quarter of
Section 35, Township 12 South, Range 4 West, San Bernardino Base and Meridian, all in the
City of Encinitas, County of San Diego, State of California, more particularly described as
follows:
Beginning at the Southeast Corner of the Southwest Quarter of the Southwest Quarter of said
Section 35; Running thence North 89°34'11" West along the Section Line 659.23 feet to the
Southwest Corner of the Southeast Quarter of the Southwest Quarter of the Southwest Quarter of
said Section 35; thence North 00°30'39" East along the 1/64th Section Line 336.99 feet; thence
South 68°38'29" East 15.08 feet to the beginning of a non-tangent 75.00 foot radius curve
concave to the northeast, from which the radius point bears North 40°58'30" East; thence
southeasterly 14.15 feet along the arc of said curve through a central angle of 10°48'37" to the
beginning of a non-tangent 70.00 foot radius curve concave to the north, from which the radius
point bears North 32°34'01" East; thence southeasterly and easterly 41.94 feet along the arc of
said curve through a central angle of 34°19'32" to the beginning of a non-tangent 70.00 foot
radius curve concave to the north, from which the radius point bears North 23°26'03" East;
thence southeasterly and easterly 21.44 feet along the arc of said curve through a central angle of
17°32'51 thence South 61 °28'54" East 25.90 feet; thence South 84°35'07" East 17.62 feet;
thence South 64°54'31" East 22.34 feet; thence South 86°57'52" East 20.03 feet; thence North
81 °43'29" East 13.74 feet to the beginning of a non-tangent 71.89 foot radius curve concave to
the north, from which the radius point bears North 02°20'43" East; thence easterly and
northeasterly 59.98 feet along the arc of said curve through a central angle of 47°47'54" to the
beginning of a non-tangent 68.81 foot radius curve concave to the north, from which the radius
point bears North 04°09'11" East; thence easterly 28.22 feet along the arc of said curve through
a central angle of 23°29'37"; thence North 41°55'48" East 16.84 feet to the beginning of a
tangent 42.00 foot radius curve concave to the south; thence northeasterly and easterly 49.72
feet along the arc of said curve through a central angle of 67°49'31" to the beginning of a tangent
11.00 foot radius curve concave to the north; thence easterly and northeasterly 15.00 feet along
the arc of said curve through a central angle of 78°06'53"; thence North 31 °38'26" East tangent
to said curve 18.56 feet; thence North 20°08'34" East 34.82 feet to the beginning of a tangent
100.00 foot radius curve concave to the west; thence northerly and northwesterly 115.51 feet
along the arc of said curve through a central angle of 66'1 F02"; thence South 67°04'59" West
34.02 feet; thence North 58°44'06" West 34.91 feet; thence North 35°49'29" East 4.91 feet;
thence North 54°10'30" West 26.58 feet; thence North 72°03'19" West 24.98 feet; thence North
58°58'02" West 21.91 feet the easterly boundary of Parcel 4 of said Parcel Map 19619; thence
North 19°16'55" East along said boundary 136.54 feet to the northeasterly corner of said Parcel
4; thence South 89°27'27" East along the northerly boundary of said Parcel Map 410.29 feet;
thence South 00°30'27" West along the easterly boundary of said Parcel Map and the 1/16th
Section Line 666.26 feet to the Point of Beginning. Containing 7.7018 Acres. LAND
tiQ SU
~pH C.
LS 5211
.06/30/09
EXH181T „B„
POINT OF BEGIIWVIN6
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N1 9 PARCEL 4~
91s F 1 6 TPM 06-165
02 N2~ Ni93 Og'ENaal A. 53'09'07"'R-70. 00' L=64.94'
91, So 3
l1A6 .56 +E(Rl~ N81.43'29'E 10.43'
Ai S86 *57'52'E 20.03'
i2
N~6 S64'54'31'E 22.34'
N23'26'03-E(R) 884'35'07•E 17.62'
PARCEL 4 ~Ib19N05 *53 (R)
PARCEL MAP 19619 `'~4 bt l p !o S6! 28'54 E 25.90 '
PARCEL 3 F~J 4- 17;32'51' R=70.00' L=21.44'
TPM 06-165 x x d 34'19'32" R-70.00' L=41.94'
N30 '09'53'E (R) A 10 48 37 R=75 . 00' L=14.15'
N40'56 30"E(R) f S6838'29'E 15.08' ,
k;
N00 '30'39'E 336.99'
I
I
LAND S~9
PARCEL 2 \A C . yGy~o 1 "-100.
TPM 06-165 O p
PARCEL 3 LS 5211 N
PARCEL MAP 19619 ExA~. 06/30/09
I i/' I
OF CA11F
INDICATES BIOLOGICAL & STEEP PASCO ENGINEERING
SLOPE OPEN SPACE EASEMENT 535858)N. 259-
HWY 2101. STE. A
E SOLANA BEACH. CA 92075
M"M MAP