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HomeMy WebLinkAboutItem No. 11 - RCA Cooperative AgreementCity Council Agenda Report City of Lake Elsinore 130 South Main Street Lake Elsinore, CA 92530 www.lake-elsinore.org File Number: ID# 22-377 Agenda Date: 9/27/2022 Status: Approval FinalVersion: 1 File Type: Council Consent Calendar In Control: City Council / Successor Agency Agenda Number: 11) Cooperative Agreement Between Western Riverside County Regional Conservation Authority and the City of Lake Elsinore Approve and authorize the City Manager to execute the Cooperative Agreement Between Western Riverside County Regional Conservation Authority and the City of Lake Elsinore For Acquisition of Conservation Lands Within the East Lake Specific Plan Area in substantially the form attached and in such final form as approved by the City Attorney and further authorize the City Manager or designee to take all actions and to execute such other ancillary documents necessary to implement the Agreement. Page 1 City of Lake Elsinore Printed on 9/22/2022 Page 1 of 3 REPORT TO CITY COUNCIL To: Honorable Mayor and Members of the City Council From: Jason Simpson, City Manager Prepared by: Barbara Leibold, City Attorney Date: September 27, 2022 Subject: Cooperative Agreement Between Western Riverside County Regional Conservation Authority and the City of Lake Elsinore Recommendation Approve and authorize the City Manager to execute the Cooperative Agreement Between Western Riverside County Regional Conservation Authority and the City of Lake Elsinore For Acquisition of Conservation Lands Within the East Lake Specific Plan Area in substantially the form attached and in such final form as approved by the City Attorney and further author ize the City Manager or designee to take all actions and to execute such other ancillary documents necessary to implement the Agreement. Background The southeastern shore of Lake Elsinore contains an approximately 3,063-acre area known as the “Back Basin.” The Back Basin is located within the East Lake Specific Plan (ELSP). As the Western Riverside County Multiple Species Habitat Conservation Plan (MSHCP) was being negotiated and finalized in 2003 and 2004, so too was Amendment No. 6 to the ELSP. Amendment No. 6 was one of several land use projects in the region that were in the difficult position of going through its approval process while the new requirements of the MSHCP were being formulated, but not yet adopted. On October 9, 2003, the City of Lake Elsinore and Vandermost Consulting Services, Inc. (VCS) prepared an MSHCP consistency analysis for the ELSP in anticipation of adoption of Amendment No. 6 and the MSHCP. The 2003 ELSP MSHCP Consistency Analysis proposed approximately 770 acres of conservation within the Back Basin to achieve consistency with MSHCP goals and objectives. On February 3, 2004, the County of Riverside, which at the time was responsible for the MSHCP, concurred that the 770-acre conservation proposal and related conservation measures proposed for the ELSP, “contains a suitable framework for determining consistency with the MSHCP.” Further, the 770-acre conservation proposal was vetted through the U.S. Fish & Wildlife Service (USFWS) and the California Department of Fish & W ildlife (CDFW). The MSHCP was formally adopted on June 22, 2004, four months later. RCA Cooperative Agreement September 27, 2022 Page 2 of 3 While the 770-acre conservation proposal was specific to certain areas of the Back Basin, the boundaries of the conservation areas were generally designated without precise boundaries. To- date, approximately 647 acres, or 84%, of the 770-acre goal has been or is slated for conservation within the Back Basin. Approximately 123 acres, or 16%, of the 770-acre goal are needed to achieve the balance of 770 acres of conservation within the ELSP. Getting to 770 acres has been challenging. The ELSP has been in a “catch-22” situation since the outset of the MSHCP. Without the 770 acres of conservation complete, some development projects may have an uncertain path to demonstrate consistency with the MSHCP, yet to achieve 770 acres of conservation, development needs to occur and there is no consistent agreed-upon process by which development can proceed. The other solution is for the remainder of the “770” to be acquired through the purchase of property from willing sellers. RCA and City staff and legal counsels have met regularly since February 2022 to develop solutions to the “770.” Both staffs and counsels have spent significant effort sorting through the complexities and difficulties of conservation in the Back Basin. RCA and the City have consulted with the state and federal wildlife agencies numerous times on potential solutions to the “770.” After going through multiple proposals and thoroughly discussing paths forward, RCA and City staff concluded that acquisition of the remaining acres to complete the “770” is the most straightforward solution. RCA has available grant funding from the California Natural Resources Agency (CNRA) to lead the Back Basin acquisition efforts that can achieve this long-standing conservation objective. Discussion RCA staff and Executive Committee have proposed to “set aside” at least $3 million of the CNRA grant to acquire the remaining 123 acres in the Lake Elsinore Back Basin to complete the 770- acre acquisition target. Doing so would benefit the MSHCP, RCA, and the City. The MSHCP would benefit from the conservation of critical habitat described for conservation within the Plan. The City would benefit from bringing resolution to an issue within its boundaries that dates to the inception of the MSHCP, and which has complicated the City’s economic development efforts. RCA would benefit from investing grant funds that have a near-term expiration date in an area that would assist a Member Agency with fulfilling its MSHCP commitments and where there are likely to be property owners willing to sell their land. The proposed Cooperative Agreement sets forth the respective responsibilities and expectations of RCA and the City. Under the proposed Cooperative Agreement, RCA agrees to “earmark” $3 million of the CNRA grant funds for Back Basin conservation and memorialize the partnership between the City and RCA in attempting to complete the “770” through the land acquisition process. The City agrees to pay for the cost of land appraisals and up to 10% matching funds under the terms of the CNRA grant. In summary, the Cooperative Agreement: • Designates $3 million of the CNRA grant to RCA for the Back Basin; • Provides flexibility for the Executive Director to increase the amount for the Back Basin, if necessary and if grant funds remain available; RCA Cooperative Agreement September 27, 2022 Page 3 of 3 • Commits RCA to take the lead in the acquisition process for this effort, including taking ownership of the habitat once acquired; • Requires the City to reimburse RCA for the costs of appraising property in the Back Basin (RCA will incur all other costs typical of an acquisition coming into RCA ownership); • Requires the City to provide 10% of the funding for an acquisition in the unlikely event that CNRA does not fully reimburse RCA (CNRA withholds 10% of funding for each acquisition until it receives all the paperwork demonstrating completion of the acquisition); • Commits RCA and the City to work together on acquisition of properties in the Back Basin using best efforts; • Declares that eminent domain will not be used in this process; • Ensures that RCA is under no obligation to complete the “770” with these funds nor to expend the entire $3 million offered; and • Acknowledges that CNRA controls the grant and that RCA must comply with CNRA. City and RCA staff agree that this proposed Cooperative Agreement is in the mutual interest of RCA (and the MSHCP) and the City. The proposed Cooperative Agreement provides for shared costs, continued collaboration, and most importantly a tangible mechanism to allow this nearly 20-year-old matter to be resolved. Fiscal Impact The City will be financially responsible for the cost of appraisals and up to 10% of the funding for acquisition in the unlikely event that CNRA does not fully reimburse RCA. RCA will be responsible for all other costs associated with the acquisitions. Exhibits A - Draft Cooperative Agreement 26493.00705\40636127.9 1 Agreement No.: 23019 COOPERATIVE AGREEMENT BETWEEN WESTERN RIVERSIDE COUNTY REGIONAL CONSERVATION AUTHORITY AND THE CITY OF LAKE ELSINORE FOR ACQUISITION OF CONSERVATION LANDS WITHIN THE EAST LAKE SPECIFIC PLAN AREA This Cooperative Agreement (“Cooperative Agreement”) is made and entered into this _____ day of _________, 2022 (“Effective Date”) by and between the Western Riverside County Regional Conservation Authority (“RCA”) and the City of Lake Elsinore (the “City”). RCA and the City are sometimes referred to herein individually as (“Party”), and collectively as (“Parties”). RECITALS WHEREAS, RCA is a joint powers authority, formed in 2004 pursuant to the provisions of Government Code section 6500 et seq., to administer the Western Riverside County Multiple Species Habitat Conservation Plan (“MSHCP”). WHEREAS, City is a California municipal corporation and a member agency of the RCA joint powers authority as well as a permittee of the MSHCP. WHEREAS, in 1993, the City adopted the East Lake Specific Plan (“ELSP”) governing land use and development within approximately 3,063 acres comprising the “Back Basin” of Lake Elsinore and entered into various agreements relating to development within the ELSP boundaries. The ELSP and the various development agreements were amended from time to time prior to 2003. WHEREAS, the ELSP MSHCP Consistency Analysis dated Oct ober 9, 2003 prepared by Vandermost Consulting Services, Inc. on behalf of Laing-CP Lake Elsinore and the City described approximately 770 acres of proposed conservation sites within the ELSP (the “770 Acre ELSP Conservation Proposal”) and described its consistency with the MSHCP conservation goals and objectives. WHEREAS, the 770 Acre ELSP Conservation Proposal was approved by the County of Riverside in a letter from Richard Lashbrook dated February 3, 2004 as a “suitable framework for determining consistency with the MSHCP” for the ELSP within the Back Basin. In early 2004, the City approved Amendment No. 6 to the ELSP and on June 22, 2004, the MSHCP was adopted. WHEREAS, in January 2005, CDFW issued Streambed Alteration Agreement No. 1600- 2004-0130-R6 (“SAA”) pursuant to Section 1600 of the Fish and Game Code, for the Summerly Project within the Amendment No. 6 area of the ELSP. The SAA incorporated conservation and mitigation requirements based on the 770 Acre ELSP Conservation Proposal. 26493.00705\40636127.9 2 WHEREAS, the RCA and the City are working collaboratively on solutions to complete the 770 Acre ELSP Conservation Proposal. WHEREAS, as of the Effective Date, the RCA is the beneficiary of certain grant funds from California Natural Resources Agency (CNRA) that can be used to acquire conservation land within the MSHCP boundary, including the ELSP boundary. WHEREAS, the RCA has offered to the City to use a portion of the grant funds ($3 million) to purchase conservation lands within the ELSP boundary to assist the City in furthering its efforts to accumulate the necessary acreage required to complete the 770 Acre ELSP Conservation Proposal (“Acquisitions”). WHEREAS, it is the intent of the Parties to enter into this Cooperative Agreement to establish and coordinate the responsibilities of the Parties with respect to the Acquisitions, all as further set forth herein. NOW THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, it is mutually understood and agreed by RCA and the City as follows: TERMS 1. Incorporation of Recitals. The recitals set forth above are true and correct and are incorporated into this Cooperative Agreement as though fully set forth herein. 2. Term. This Cooperative Agreement shall be effective as of the Effective Date, and shall continue in effect until the Acquisitions are complete, the grant funding is depleted, expired, or revoked, or the Parties mutually agree in a writing to terminate this Cooperative Agreement. 3. General Agreement to Cooperate. The Parties will cooperate to implement this Cooperative Agreement. 4. Obligations of RCA. 4.1 RCA will reach out to landowners of potential Acquisitions to gage interests in selling land to the RCA. 4.2 While RCA has no obligation to spend this entire amount, RCA intends to earmark $3 million of grant funds to pay for the Acquisitions (“Earmark”). The RCA Executive Director has the sole discretion to increase the level of the Earmark to an amount that may be needed to complete the Acquisitions, but limited to the unused funds RCA has remaining under this particular CNRA grant. Since CNRA requires RCA to spend grant funds before March 1, 2023, unless an amendment is approved, RCA may be required to proceed with other projects if Acquisitions are not successful or are taking longer than RCA’s ability to use the grant funds. RCA will make best efforts to secure extensions to the grant from CNRA. 4.3 Once an interested seller is identified, RCA and its consultants will work with the seller on all aspects of the conveyance of Acquisitions to the RCA including, without limitation, commissioning an appraisal, obtaining appropriate RCA Board of Directors approvals, entering 26493.00705\40636127.9 3 into a purchase and sale agreement, completing the Phase 1 environmental site assessment report, reviewing title, ensuring legal access, inspecting the property, completing installation of missing monuments, removing debris (if necessary), opening and closing escrow, seeking reimbursement from CNRA, and conducting any other relevant due diligence as RCA in its sole discretion deems necessary. 4.4 RCA will implement this Cooperative Agreement in accordance with the CNRA grant and applicable laws, regulations and policies. RCA will invoice the City within thirty (30) days of the completion of each appraisal (including review appraisal). RCA and the City will cooperate on the form of invoice and the level of detail required by the City’s auditors to reimburse such appraisal costs to RCA. 4.5 RCA will own the Acquisitions in fee title and include as “Additional Reserve Lands” as part of the MSHCP. 4.6 Once escrow closes, RCA shall record its template restrictive covenant for MSHCP conservation lands over each one of the Acquisitions. 5. Obligations of the City 5.1 The City will promptly reimburse RCA for any and all appraisal (including review appraisal) costs related to implementing this Cooperative Agreement. The City agrees to remit payment to RCA’s invoices within thirty (30) days of receipt of the invoice. 5.2 CNRA, which administers the grant RCA intends to use for Acquisitions, withholds 10% of the cost of acquisitions until every aspect of the acquisition is complete and documentation of the completion is provided to the satisfaction of the granting agency. The City agrees to cooperate with RCA regarding this documentation and will also agree to pay RCA the 10% withholding amount if for some reason the reimbursement of such amount is not approved by CNRA. 5.3 City may propose to donate properties consistent with the 770 Acre ELSP Conservation Proposal to satisfy all or a portion of its financial obligations under Section 5.1 and/or 5.2 of this Cooperative Agreement and RCA will consider accepting reimbursement from the City in the form of real property based on applicable rules and other considerations. 6. Mutual Obligations and Understandings. 6.1 The Parties will work together to identify potential Acquisitions, and acknowledge that neither Party will use the power of eminent domain to acquire potential Acquisitions. All Acquisitions will be purchased only from property owners willing to sell to the RCA, i.e., willing sellers. 6.2 The Parties acknowledge that both Parties shall use their best efforts to implement this Cooperative Agreement, while at the same time understand that RCA has no obligation to purchase any property, and certainly no obligation to buy any particular parcel. 26493.00705\40636127.9 4 6.3 The Parties also acknowledge that due to the number of uncontrollable variables involved, this Cooperative Agreement may not be successfully implemented. 6.4 The level of grant funding RCA commits to make the Acquisitions may fall short of completing the 770 Acre ELSP Conservation Proposal. 6.5 The Parties acknowledge that the grant funds are held and administered by CNRA and not RCA, and that RCA must comply with the requirements of CNRA. 6.6 The Parties acknowledge that RCA will not use Local Development Mitigation Fee (LDMF) revenue to pay for the purchase price of the Acquisitions in the ELSP boundaries. 7. Dispute Resolution. Unless otherwise specified herein, the Parties shall submit any unresolved dispute to RCA’s Executive Director and the City Manager for negotiation. The Executive Director and the City Manager agree to undertake good faith attempts to resolve said dispute, claim, or controversy within ten (10) calendar days after the receipt of written notice from the Party alleging that a dispute, claim or controversy exists. The Parties additionally agree to cooperate with the other Party in scheduling negotiation sessions. However, if said matter is not resolved within thirty (30) calendar days after conducting the first negotiating session, either Party may, but is not required to, request that the matter be submitted to further dispute resolution procedures, as may be agreed upon by the Parties. 8. Indemnification. 8.1 RCA shall indemnify, defend and hold the City, its directors, officials, officers, employees, agents, consultants and contractors free and harmless from any and all claims, demands, causes of action, costs, expenses, liabilities, losses, damages or injuries, in law or in equity, to property or persons, including wrongful death, in any manner arising out of or incident to any negligent acts, omissions or breach of law, or willful misconduct of RCA, its officials, officers, employees, agents, consultants or contractors in the performance of RCA’s obligations under this Cooperative Agreement, including the payment of all reasonable attorney’s fees. 8.2 The City shall indemnify, defend and hold RCA, its directors, officials, officers, employees, agents, consultants and contractors free and harmless from any and all claims, demands, causes of action, costs, expenses, liabilities, losses, damages or injuries, in law or in equity, to property or persons, including wrongful death, in any manner arising out of or incident to any negligent acts, omissions or breach of law, or willful misconduct of the City, its officials, officers, employees, agents, consultants or contractors in the performance of the City’s obligations under this Cooperative Agreement, including the payment of all reasonable attorney’s fees. 8.3 The indemnification provisions set forth in this Section shall survive any expiration or termination of this Cooperative Agreement. 9. Amendments. This Cooperative Agreement may be amended at any time by the mutual consent of the Parties by an instrument in writing. 10. Assignment of Cooperative Agreement. Neither Party may assign or transfer its respective rights or obligations under this Cooperative Agreement without the express written consent of the 26493.00705\40636127.9 5 other Party. Any purported assignment or transfer by one Party without the express written consent of the other Party shall be null and void and of no force or effect. 11. Waiver. No delay or omission in the exercise of any right or remedy of a non-defaulting Party on any default shall impair such right or remedy or be construed as a waiver. No consent or approval of either Party shall be deemed to waive or render unnecessary such Party’s consent to or approval of any subsequent act of the other Party. Any waiver by either Party of a ny default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Cooperative Agreement. 12. Severability. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Cooperative Agreement shall be declared invalid or unenforceable by valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Cooperative Agreement, which shall be interpreted to carry out the intent of the parties hereunder. 13. Survival. All rights and obligations hereunder that by their nature are to continue after any expiration or termination of this Cooperative Agreement, shall survive any such expiration or termination. 14. Third Party Beneficiaries. There are no third-party beneficiaries to this Cooperative Agreement. 15. Entire Agreement. This Cooperative Agreement contains the entire agreement of the Parties relating to the subject matter hereof and supersedes all prior negotiations, agreements or understandings. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first herein above written. WESTERN RIVERSIDE COUNTY CITY OF LAKE ELSINORE REGIONAL CONSERVATION AUTHORITY By: By: _____________________________ Anne Mayer, Executive Director Jason Simpson, City Manager ATTEST: By: ____________________________ City Clerk Approved as to Form: Approved as to Form: 26493.00705\40636127.9 6 By: ____________________________ By: ______________________________ Best Best & Krieger LLP Barbara Leibold General Counsel City Attorney