HomeMy WebLinkAboutItem No. 06 Easement to EVMWD Pechanga Band of Luiseno IndiansText File
City of Lake Elsinore 130 South Main Street
Lake Elsinore, CA 92530
www.lake-elsinore.org
File Number: ID# 17-889
Agenda Date: 11/27/2018 Status: Consent AgendaVersion: 1
File Type:
Easement/Dedication
In Control: City Council / Successor Agency
Agenda Number: 6)
Page 1 City of Lake Elsinore Printed on 11/20/2018
REPORT TO CITY COUNCIL
To:Honorable Mayor and Members of the City Council
From:Grant Yates, City Manager
Prepared by: Rita Thompson, Senior Engineering Technician
Date:November 27, 2018
Subject:Approve the Grant of Easement to Elsinore Valley Municipal Water District
and Conservation Easement to Pechanga Band of Luiseno Indians in
Conjunction with the Outlet Channel Regional Agricultural Pipeline Project.
Recommendations
1) Approve the Grant of Easement to Elsinore Valley Municipal Water District for pipeline;
and
2) Approve the Grant of Conservation Easement to Pechanga Band of Luiseno Indians for
repatriation of artifacts; and
3) Authorize the City Manager to execute said easements.
Background
On September 12, 2016, City Council executed a cooperative agreement between the City of
Lake Elsinore, Elsinore Valley Municipal Water District (EVMWD) and Riverside County Flood
Control and Water Conservation District (RCFCWCD) for funding of a project to rehabilitate,
repair, and partially construct an existing pipeline located parallel to the Outlet Channel. The
purpose of the pipeline being to carry recycled water from EVMWD’s regional water reclamation
facility to the Lake. The project directly benefits the Lake through the elimination of evaporative
water loss currently experienced by overland flows and reduction of nutrients that are picked up
and carried by the recycled water as it currently flows down the Outlet Channel to the Lake.
Discussion
The existing pipeline ends approximately 360 feet from the Lake; to facilitate getting the water to
the lake, the pipeline will be extended by EVMWD. To allow for construction and long-term
maintenance of the pipeline by EVMWD, an easement is warranted; the location is shown on
Exhibit A.
Agricultural Pipeline Grant of Easements
November 27, 2018
Page 2
Incidental to the project will be the repatriation of Pechanga Band of Luiseno Indian artifacts in
an area adjacent to the Outlet Channel. The area selected for a grant of Conservation
Easement has been determined by the tribe to be culturally acceptable for the repatriation as
shown on Exhibit B. All costs associated with the repatriation will be paid by the tribe.
Fiscal Impact
No direct fiscal impact to the City.
Exhibits
A – Grant of Easement - EVMWD
B – Grant of Conservation Easement - Pechanga
C – Site Plan
D – Vicinity Map
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
The City of Lake Elsinore
130 South Main Street
Lake Elsinore, CA 92530
Attention: City Clerk
TAX STATEMENTS
DO NOT CHANGE MAILING
Exhibit A
Exempt from Recording Fee Exempt from Documentary Tax
Pursuant to Government Code Section 6103 Pursuant to R&T Code § 11922
(Space above this line for City and Recorder’s use)
Grant of Easement
Riverside County [ ] All
Assessor’s Parcel Number: 374-271-013, 374-271-015 &
374-271-007 and 374-291-007 [ X ] Portion
For valuable consideration, receipt of which is hereby acknowledged,
CITY OF LAKE ELSINORE, a municipal corporation,
hereby grants to:
ELSINORE VALLEY MUNICIPAL WATER DISTRICT,
an easement for pipeline purposes, including the installation and maintenance thereof, over and
through the real property in the City of Lak e Elsinore, County of Riverside, State of California
described on Exhibit “A” and shown on Exhibit “B”, attached hereto and by reference made a part
hereof.
In witness whereof, the grantor hereto has caused this Grant of Easement to be executed on this day
of , 201 .
Grant Yates, City Manager
(This document must be notarized)
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
The City of Lake Elsinore
130 South Main Street
Lake Elsinore, California 92530
Attn: City Clerk
TAX STATEMENTS
DO NOT CHANGE MAILING
Riverside County
Assessor’s Parcel Number: 374-271-007
(Space Above Line for Recorder’s Use Only)
Documentary Transfer Tax: $0.00
This Instrument is exempt from Recording Fees (Govt. Code § 27383), Filing Recording Fees
(Govt. Code § 6103), and Documentary Transfer Tax (Rev & Tax Code § 11922).
CONSERVATION EASEMENT
THIS CONSERVATION EASEMENT is dated as of October 23, 2018, and is entered into
by the CITY OF LAKE ELSINORE, a California municipal corporation (together with its
successors-in-interest, “Grantor”) in favor of the PECHANGA BAND OF LUISEÑO INDIANS,
a federally-recognized Indian tribe (“Grantee”), for the purpose of binding both Grantor and the
future owners of the property described on Exhibit “A” and shown on Exhibit “B”:
R E C I T A L S
A. Grantor is the sole owner in fee simple of the land described on Exhibit “A” and
depicted on Exhibit “B” attached hereto and incorporated by this reference (the “Easement
Property”).
B. The Easement Property possesses open space, cultural, archaeological, and
historical values (collectively, “Conservation Values”) of importance to Grantee and the people of
the State of California which are consistent with California Civil Code Section 815.1 et seq.;
C. Grantee is authorized to hold conservation easements pursuant to Civil Code
Section 815.3. Specifically, Grantee is an entity identified in Civil Code Section 815.3 and
otherwise authorized to acquire and hold title to real property; and
D. Grantee agrees by accepting this grant to honor the intentions of Grantor to preserve
and protect in perpetuity the Conservation Values of the Easement Property in accordance with
the terms of this Conservation Easement.
Exhibit B
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COVENANTS, TERMS, CONDITIONS AND RESTRICTIONS
For good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, and pursuant to California law, including Civil Code Section 815, et seq., Grantor
hereby voluntarily CONTRIBUTES, GRANTS, and CONVEYS to Grantee a conservation
easement over and across the Easement Property of the nature and character and to the extent
hereinafter set forth (“Conservation Easement”). This Conservation Easement shall bind the
Grantor unconditionally and in perpetuity.
This Conservation Easement shall run with the land and be binding on Grantor’s successors
to all or any portion of or interest in the Easement Property.
This Conservation Easement may not be terminated or amended without the prior written
consent of the Grantee, even if the Grantee has no interest in the title to the Easement Property.
1. Purpose/Agreement. Following the installation of above-ground landscape features
such as boulders and drought tolerant native seed mix, the Easement Property will be retained in
perpetuity in such condition for the protection of cultural and archaeological resources and shall
not be disturbed or subject to any direct or indirect impacts or uses of any kind.
2. Grantee’s Ongoing Rights. To accomplish the purposes of this Conservation
Easement, Grantor hereby grants and conveys the following rights to Grantee:
a. To preserve and protect the Conservation Values of the Easement Property;
b. To enter upon the Easement Property in order to monitor Grantor’s
compliance with and to otherwise enforce the terms of this Conservation Easement, subject to any
terms and conditions contained within the Preservation Plan required under subsection 3j, below;
c. To prevent any activity on, or use of, the Easement Property and to require
the restoration of such areas or features of the Easement Property that may be damaged by any act,
failure to act, or any use that is inconsistent with the purposes of this Conservation Easement
pursuant to the required Preservation Plan;
d. All mineral, air and water rights necessary to protect and to sustain the
Conservation Value of the Easement Property;
e. All present and future development rights; and
f. The right to enforce by any means, including, without limitation, injunctive
relief, the terms and conditions of this Conservation Easement and the Preservation Plan.
3. Prohibited Uses. Any activity on or use of the Easement Property that is
inconsistent with the purposes of this Conservation Easement and the terms of the Preservation
Plan is prohibited. Without limiting the generality of the foregoing, the following uses by Grantor,
Grantor’s agents, and third parties, are expressly prohibited:
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a. All activities and uses which may adversely affect the purposes of this
Conservation Easement;
b. Use of off-road vehicles and use of any other motorized vehicles;
c. Depositing or accumulation of soil, trash, ashes, refuse, waste, bio solids or
any other materials;
d. Non-Native Planting, introduction or dispersal of plant or animal species;
e. Grading, construction, or improvement, including such activities that are of
a temporary nature, of the Easement Property; and
f. No use, either direct or passive, shall be made of the Easement Property,
and no activity thereon shall be permitted.
g. The following activities are expressly prohibited: grading; excavation;
placement of soil; sand; laying of rock, gravel or other material (except for purposes consistent
with the Conservation Values and Preservation Plan); clearing of vegetation; construction; erection
or placement of any building or structure; vehicular activities; trash dumping; collection or
disturbance of sensitive resources; or use for any purpose other than those described herein.
h. The sole exceptions to the above prohibitions are:
i. Selective clearing of vegetation by hand in the environmentally sensitive
conservation easement for fuel modification purposes. There shall be absolutely no soil
disturbing activities.
ii. Selective clearing of vegetation by hand to the extent required by written
order of the fire authorities for the express purpose of reducing an identified fire hazard.
iii. Preservation of the environmentally sensitive conservation easement.
i. This easement shall not authorize any member of the public to use or enter
upon the land subject to this easement, it being understood that the purpose of this easement
is solely to restrict the use of said land.
j. Prior to implementation of this conservation easement, the Grantor and
Grantee shall prepare and execute a Preservation Plan that preserves and protects the
environmentally sensitive resources. The terms of the Preservation Plan shall be consistent
with the purposes of this conservation easement and shall be entered into between Grantor
and Grantee.
4. Grantee’s Remedies. If Grantee determines that Grantor or any successor is in
violation of the terms of this Conservation Easement or that a violation is threatened, Grantee shall
give written notice to Grantor of such violation and demand in writing the cure of such violation.
If Grantor fails to cure the violation within five (5) days after written notice and demand from
Grantee, Grantee may bring an action at law or in equity in a court of competent jurisdiction to
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enforce compliance by Grantor with the terms of this Conservation Easement, to recover any
damages to which Grantee may be entitled for violation by Grantor of the terms of this
Conservation Easement or for any injury to the Conservation Values of the Easement Property, to
enjoin the violation, ex parte as necessary, by temporary or permanent injunction without the
necessity of proving either actual damages or the inadequacy of otherwise available legal remedies,
or for other equitable relief, including, but not limited to, the restoration of the Easement Property
to the condition in which it existed prior to any such violation or injury. Without limiting Grantor’s
liability therefore, Grantee may apply any damages recovered to the cost of undertaking any
corrective action on the Easement Property.
If Grantee, in its sole discretion, determines that circumstances require immediate action
to prevent or mitigate damage to the Conservation Values of the Easement Property, Grantee may
pursue its remedies under this Section without prior notice to Grantor or without waiting for the
period provided for cure to expire. Grantee’s rights under this section apply equally to actual or
threatened violations of the terms of this Conservation Easement. Grantor agrees that Grantee’s
remedies at law for any violation of the terms of this Conservation Easement are inadequate and
that Grantee shall be entitled to the injunctive relief described in this section, both prohibitive and
mandatory, in addition to such other relief to which Grantee may be entitled, including specific
performance of the terms of this Conservation Easement, without the necessity of proving either
actual damages or the inadequacy of otherwise available legal remedies. Grantee’s remedies
described in this section shall be cumulative and shall be in addition to all remedies now or
hereafter existing at law or in equity, including but not limited to, the remedies set forth in Civil
Code Section 815, et seq., inclusive. The failure of Grantee to discover a violation or to take
immediate legal action shall not bar Grantee from taking such action at a later time.
If at any time in the future Grantor or any subsequent transferee uses or threatens to use
the Easement Property for purposes inconsistent with this Conservation Easement then,
notwithstanding Civil Code Section 815.7, Grantee, the California Attorney General, or any entity
or individual with a justifiable interest in the preservation of this Conservation Easement has
standing as interested parties in any proceeding affecting this Conservation Easement.
a. Costs of Enforcement. Any costs incurred by Grantee where Grantee is the
prevailing party, in enforcing the terms of this Conservation Easement against Grantor, including,
but not limited to, costs of suit and reasonable attorneys’ and experts’ fees, and any costs of
restoration necessitated by Grantor’s negligence or breach of this Conservation Easement shall be
borne by Grantor.
b. Grantee’s Discretion. Enforcement of the terms of this Conservation
Easement by Grantee shall be at the discretion of Grantee, and any forbearance by Grantee to
exercise its rights under this Conservation Easement in the event of any breach of any term of this
Conservation Easement by Grantor shall not be deemed or construed to be a waiver by Grantee of
such term or of any subsequent breach of the same or any other term of this Conservation Easement
or of any of Grantee’s rights under this Conservation Easement. No delay or omission by Grantee
in the exercise of any right or remedy upon any breach by Grantor shall impair such right or remedy
or be construed as a waiver.
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c. Grantee’s Right of Enforcement. All rights and remedies conveyed to
Grantee under this Conservation Easement shall extend to and are enforceable by the Grantee and
its assignees.
5. Access. This Conservation Easement does not convey a general right of access to
the public or any future resident or owner of the Easement Property or any adjacent landowners or
a general right of access to the Easement Property.
6. No Hazardous Materials Liability. Despite any contrary provision of this
Conservation Easement, the parties do not intend this Conservation Easement to be, and this
Conservation Easement shall not be, construed such that it creates in or gives to Grantee any of
the following:
a. 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
b. The obligations or liabilities of a person described in 42 U.S.C. Section
9607(a)(3) or (4); or
c. The obligations of a responsible person under any applicable Environmental
Laws; or
d. The right to investigate and remediate any Hazardous Materials associated
with the Easement Property; or
e. Any control over Grantor’s ability to investigate, remove, remediate or
otherwise clean up any Hazardous Materials associated with the Easement Property.
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; Resource Conservation and Recovery Act (42 U.S.C. 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 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
Conservation Easement.
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.
7. Assignment by Grantee. This Conservation Easement is transferable by Grantee,
but Grantee may assign its rights and obligations under this Conservation Easement only to an
entity or organization authorized to acquire and hold conservation easements pursuant to Civil
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Code Section 815.3. Grantee shall require the assignee to record the assignment in Riverside
County.
8. Conveyances by Grantor of Fee Title. The covenants, conditions, and restrictions
contained in this Conservation Easement are intended to and shall run with the land and bind all
future owners of any interest in the Easement Property. From and after the date of any transfer of
all or any portion of the Easement Property by Grantor and each transfer thereafter: (i) the
transferee shall be deemed to have assumed all of the obligations of Grantor as to the portion
transferred, as set forth in this Conservation Easement, (ii) the transferee shall be deem ed to have
accepted the restrictions contained herein as to the portion transferred, (iii) the transferor, as
applicable, shall have no liability for obligations hereunder arising after the conveyance, and
(iv) all references to Grantor in this Conservation Easement shall thereafter be deemed to refer to
such transferee.
9. Notices. Any notice, demand, request, consent, approval, or communication that
either party desires or is required to give to the other shall be in writing and be served by recognized
overnight courier that guarantees next-day delivery or by certified mail, return receipt requested,
addressed as follows or to such other address as either party (or any subsequent owners of all or
any portion of or interest in the Easement Property) shall designate by written notice to the other:
To Grantor: City of Lake Elsinore
130 South Main Street
Lake Elsinore, CA 92530
Attn: City Manager
With a Copy to: City of Lake Elsinore
130 South Main Street
Lake Elsinore, CA 92530
Attn: City Engineer
To Grantee: Pechanga Cultural Department
P.O. Box 2183
Temecula, CA 92593
Attn: Gary DuBois, Director
With a Copy to: Pechanga Band of Luiseño Indians
P.O. Box 1477
Temecula, CA 92593
Attn: Pechanga Office of the General Counsel
Notice shall be deemed effective upon delivery in the case of delivery by overnight courier or, in
the case of delivery by certified mail, five (5) days after deposit into the United States mail.
10. Amendment. This Conservation Easement may not be amended without the written
consent of the City of Temecula. Any such amendment shall be recorded in the Official Records
of Riverside County, State of California.
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11. General Provisions.
a. Controlling Law. The interpretation and performance of this Conservation
Easement shall be governed by the laws of the State of California, disregarding the conflicts of
law principles of such state.
b. Liberal Construction. Any general rule of construction to the contrary
notwithstanding, this Conservation Easement shall be liberally construed in favor of and to effect
the purposes of this Conservation Easement and the policy and purpose set forth in 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 Conservation Easement that would render the
provision valid shall be favored over any interpretation that would render it invalid.
c. Change of Conditions. If one or more of the purposes of this Conservation
Easement may no longer be accomplished, such failure of purpose shall not be deemed sufficient
cause to terminate the entire Conservation Easement as long as any other purpose of the
Conservation Easement may be accomplished.
d. Severability. If a court of competent jurisdiction voids or invalidates on its
face any provision of this Conservation Easement, such action shall not affect the remainder of
this Conservation Easement. If a court of competent jurisdiction voids or invalidates the
application of any provision of this Conservation Easement to a person or circumstance, such
action shall not affect the application of the provision to other persons or circumstances.
e. Entire Agreement. This instrument together with the attached exhibits and
any documents referred to herein sets forth the entire agreement of the parties with respect to the
Conservation Easement and supersedes all prior discussions, negotiations, understandings, or
agreements relating to the Conservation Easement.
f. Additional Easements. Grantor and its successors-in-interest shall not grant
any easements, rights of way or other interests in the Easement Property (other than a security
interest that is subordinate to this Conservation Easement).
g. Counterparts. The parties may execute this instrument in two or more
counterparts, which shall, in the aggregate, be signed by both parties; each counterpart shall be
deemed an original instrument as against any party who has signed it.
h. No Merger. This Conservation Easement is being executed and recorded in
anticipation of conveyance of fee title to the Easement Property by Grantor. This Conservation
Easement shall not be extinguished or terminated by merger even though fee title to the Easement
Property and the grantee’s rights under this Conservation Easement are held by the same entity.
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IN WITNESS WHEREOF Grantor has executed this Conservation Easement the day and
year first above written and has agreed to be bound by the terms and provisions hereof. Further,
by executing the Certificate of Acceptance attached hereto, Grantee has agreed to be bound by the
terms and provisions of the Conservation Easement.
GRANTOR:
CITY OF LAKE ELSINORE, a municipal corporation
By:
Print Name: Natasha Johnson
Title: Mayor
ATTEST:
By:
Susan Domen, City Clerk
APPROVED AS TO FORM:
By:
Barbara Liebold, City Attorney
ACKNOWLEDGMENT
State of California
County of Riverside
)
)
)
On before me,
(insert name and title of the officer)
personally appeared ,
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 PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
Signature of Notary Public
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
CERTIFICATE OF ACCEPTANCE
This is to certify that the interest in real property conveyed by the City of Lake Elsinore, a
municipal corporation by virtue of the Conservation Easement dated October __, 2018, to the
Pechanga Band of Luiseño Indians (“Grantee”), is hereby accepted by the undersigned officer on
behalf of the Grantee, pursuant to authority conferred by action of the Grantee on October __,
2018.
GRANTEE:
PECHANGA BAND OF LUISEÑO INDIANS
By:
Mark Macarro
Tribal Chairman
Exhibit C
EXHIBIT D
VICINITY MAP