HomeMy WebLinkAboutC24410 Negotiate and Record Conservation Easements for City and Redevelopment Agency PropertiesCITY OF PALM DESERT
OFFICE OF THE CITY MANAGER
STAFF REPORT
REQUEST: Direct Staff to Negotiate and Record Conservation Easements for
the City and Redevelopment Agency Properties
SUBMITTED BY: John M. Wohlmuth, City Manager
DATE: February 23, 2012
CONTENTS: Coachella Valley Conservation Commission Conservation
Easement Deed
Recommendation
By Minute Motion:
(1) Direct Staff to prepare a change of zone and general plan amendment on City
and RDA owned properties within the hillside area, and;
(2) Direct staff to continue negotiating Conservation Easements for the same
properties, and;
(3) Direct staff to investigate an acceptable party to accept the Conservation
Easement.
Background
Since the January meeting, staffs approach has changed slightly. We have learned that
the City has not lost its ability to change the zone or general plan designation of any
properties affected by the loss of RDA. A change of zone and general plan designation
is the fastest form of protection that can be put in place on the hillside properties. Staff is
suggesting we continue working towards placing conservation easements on these
properties and move forward with zone and general plan amendments immediately. I
have directed the Planning Department to begin this process and will present the
changes on the March 23, 2012 City Council agenda.
Staff Report
Conservation Easements for the Palm Desert and Palm Desert RDA Cahuilla Hills
Properties
February 23, 2012
Page 2 of 2
Fiscal Analysis
The cost of changing the zoning and general plan designations is merely staff time to
process the case. The findings for the change of zone can easily be met and would
provide a much more immediate protection.
Staff is continuing to work with the Coachella Valley Mountains Conservancy to develop a
plan inclusive of costs to maintain and monitor these parcels. Having the additional layer
of protection provided by the change of zone allows time for a comprehensive evaluation
by the CVMC or others who might be interested in accepting a conservation easement.
Submitted By: CITYCOUNCTLA�ION
APPROVED DENTED
RECEIVED OTHER
MEETING DBE rI
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n M. Wohlmuth, City Manager "` y'
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ABSENT: -
ABSTAIN:
V1,'1RlFlED BV:
Original on File with City 'lc€A's Office
CONSERVATION EASEMENT
RECORDING REQUESTED BY AND )
WHEN RECORDED MAIL TO: )
Coachella Valley Conservation Commission )
73-710 Fred Waring Drive, Suite 200 )
Palm Desert, CA 92260 )
Space Above Line for Recorder's Use Only
CONSERVATION EASEMENT DEED
THIS CONSERVATION EASEMENT DEED is made this day of ,
20 , by ("Grantor"), in favor of
the COACHELLA VALLEY CONSERVATION COMMISSION, a California Joint Powers
Authority, ("Grantee,") with reference to the following facts:
RECITALS
A. Grantor is the sole owner in fee simple of certain real property consisting of
approximately acres in the [name of city,] [unincorporated area of] County of Riverside,
State of California, and more particularly described in Exhibit "A" attached hereto and
incorporated herein by this reference (the "Property"). An approximately __ acre portion of
the Property is more particularly described in Exhibit B attached hereto and incorporated herein
by reference (the "Easement Property"); [Note: depending on the parcel, it may also be
necessary to reference a tract map, parcel map, etc. in this section,]
B. The Easement Property possesses wildlife and habitat values (collectively,
"conservation values") of great importance to Grantee, the people of the State of California, and
the people of the United States;
C. The Easement Property provides potential habitat for the [list species with
common and scientific names;] and contains natural communities including [list names; also list
sand transport areas and/or wildlife linkages, as applicable];
D. The California Department of Fish and Game ("CDFG") has jurisdiction,
pursuant to California Fish and Game Code section 1802 and other laws, over the conservation,
protection, and management of fish, wildlife, native plants, and the habitat necessary for
biologically sustainable populations of those species;
E. The United States Fish & Wildlife Service ("USFWS") has jurisdiction over the
conservation, protection, restoration, enhancement, and management of fish, wildlife, native
plants, and habitat necessary for biologically sustainable populations of those species to the
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Model Easement February 23, 2010
extent set forth in the Federal Endangered Species Act, 16 t1.S.C. sections 1531, et seq., and
other federal laws;
F. The Coachella Valley Conservation Commission ("CVCC") is a California joint
powers authority pursuant to Government Code sections 6500-651 1 created to implement the
Coachella Valley Multiple Species Habitat Conservation Plan/Natural Community Conservation
Plan ("MSHCP") and is a governmental agency qualified to hold conservation easements
pursuant to Civil Code section 815.3;
G. This Conservation Easement provides mitigation for certain impacts ofa
[describe project type if applicahle; e.g. residential develol)ment project]; in [the city of'
, or in the unincorporated area of] County of Riverside, State of California, pursuant to
the California Natural Community Conservation Planning Act Permit 2035-2008-001-06 dated
September 9, 2008, issued by CDFG under the authority of California Fish and Game Code
sections 2800 et seq. ("NCCP Permit"), and Permit No TE104604-0 dated October 1, 2008,
issued by USFWS under the authority of section 10(a)(1)(B) and section 10(a)(2) of the
Endangered Species Act of 1973 as amended (FESA) ("Section 10(a) Permit"), and the
corresponding MSHCP dated September 2007 and Implementing Agreement, as same may be
amended from time to time. The Section 10(a) Permit, the NCCP Permit, the Implementing
Agreement, and the MSHCP, and any amendments thereto, are all incorporated herein by this
reference. Information regarding these documents may be obtained from USFWS and CDFG, for
each respective permit, and from CVCC regarding the Implementing Agreement and the
MSHCP. Contact information for USFWS, CDFG, and CVCC is provided in the Notices section
of this Conservation Easement Deed.
COVENANTS, TERMS, CONDITIONS AND RESTRICTIONS
In consideration of the above recitals and mutual covenants, terms, conditions, and restrictions
contained herein, and pursuant to United States and California law, including Civil Code sections
815, et seq., Grantor hereby voluntarily grants and conveys to Grantee a Conservation Easement
in perpetuity over the Easement Property.
1. Purpose. The purpose of this Conservation Easement is to ensure the Easement Property
will be retained forever in a natural condition and to prevent any use of the Easement Property
that will impair or interfere with the conservation values of the Easement Property. Grantor
intends that this Conservation Easement will confine the use of the Easement Property to such
activities, including, without limitation, those involving the preservation and enhancement of
native species, their habitat, and natural communities, in a manner consistent with the habitat
conservation purposes of this Conservation Easement.
1.1 The term "natural condition," as referenced in the preceding paragraph and other
portions of this Conservation Easement Deed, shall mean the condition of the Easement
Property, as it exists at the time this Conservation Easement Deed is executed, as well as future
enhancements or changes to the Easement Property that occur directly as a result of in -perpetuity
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Model Easement February 23, 2010
maintenance and management obligations that occur on the Easement Property as described
herein.
1.2 Grantor certifies to Grantee that to Grantor's actual knowledge there are no
structures or improvements existing on the Easement Property at the time this Deed is executed.
Grantor further certifies to Grantee that to Grantor's actual knowledge there are no previously
granted easements existing on the Easement Property that interfere or conflict with the purpose
of this Conservation Easement.
1.3 Grantee's acceptance of this Conservation Easement is expressly conditioned on
the receipt from Grantor, prior to recordation, of either (a) a baseline report on the condition of
the Easement Property in a form acceptable to Grantee or (b) payment of the sum necessary to
reimburse Grantee for the cost of obtaining a baseline report as quoted by a contractor approved
by Grantee. The baseline report shall be deemed evidence of the natural condition of the
Easement Property at the time of the grant of the Conservation Easement. Exhibits to the
baseline report shall include (a) an aerial photograph(s) of the Easement Property at an
appropriate scale taken as close in time as possible to the date this Conservation Easement is
executed; (b) an overlay of the boundaries of the Easement Property on such aerial
photograph(s); and (c) on -site color photographs showing the major, distinct natural features of
the Easement Property.
2. Grantee's Rights. To accomplish the purposes of this Conservation Easement, Grantor
hereby grants and conveys to Grantee, and to USFWS and CDFG as third party beneficiaries
hereof, or their respective designee(s), all mineral, air, and water rights necessary to protect and
to sustain the biological resources of the Easement Property, and all present and future
development rights, as well as all of the following rights:
(a) To preserve and protect the conservation values of the Easement Property;
(b) To enter upon the Easement Property at reasonable times in order to
mw,itor Grantor's compliance with and to otherwise enforce the terms of this Conservation
Easti lent, and for scientific research and interpretive purposes by Grantee or its designees,
provic;%A that Grantee shall not unreasonably interfere with Grantor's authorized use and quiet
enjoymolt of the Property;
(c) To enter upon the Easement Property at reasonable times to carry out
management and monitoring consistent with the conservation goals, monitoring program, and
management plans for the MSHCP;
(d) To prevent any activity on or use of the Easement Property that is
inconsistent with the purposes of this Conservation Easement 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; and
(e) To enforce, by any means, including without limitation, injunctive relief,
the terms and conditions of this Conservation Easement.
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Model Easement February 23, 2010
3. Prohibited Uses. Any activity on or use of the Easement Property inconsistent with the
purposes of this Conservation Easement is prohibited, except as allowed by Grantor and Grantee
pursuant to an express written approval. Without limiting the generality of the foregoing, the
following uses by Grantor, Grantor's agents, and third parties, are expressly prohibited:
(a) The application of water; the use of fertilizers, pesticides, biocides,
herbicides or any agricultural chemical; incompatible fire protection activities; and any and all
other 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 except on
existing roadways;
(c) Grazing or other a,-rlcultural activity of any kind;
(d) Recreational activities except as may be expressly authorized in writing by
both Grantor and Grantee;
(e) Residential, commercial or industrial uses;
(f) [After recordation of the,inal map for Tract ) [Any/any]
further legal or de facto division, subdivision or partitioning of the Easement Property;
(g) Construction, reconstruction or placement of any building, billboard or
sign, or any other structure or improvement of any kind;
(h) Dumping, depositing or accumulation of soil, trash, ashes, refuse, waste,
biosolids or any other materials;
(i) Planting, introduction or dispersal of non-native or invasive plant or
animal species, except as otherwise approved by Grantee;
0) Filling, dumping, excavating, draining, dredging, mining, drilling,
removing or exploring for or extraction of minerals, loam, soil, sands, gravel, rocks or other
material on or below the surface of the Ear ;ment Property, except as necessary to conduct
authorized natural or cultural resources research or preservation in consultation with Native
American Tribes, State Historic Preservation Office, and other entities/agencies as required by
state or federal law;
(k) Altering the surface or general topography of the Easement Property,
including building of roads except as necessary to conduct authorized natural or cultural
resources research or preservation in consultation with Native American Tribes, State Historic
Preservation Office, and other entities/agencies as required by state or federal law;
(1) Removing, destroying, or cutting of trees, shrubs or other vegetation,
except as required by law for fire breaks, maintenance of existing foot trails or roads, or
prevention or treatment of disease;
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Model Easement February 23, 2010
(m) Manipulating, impounding or altering any natural water course, body of
water or water circulation or underground water table on the Easement Property, and activities or
uses detrimental to water quality, including but not limited to, degradation or pollution of any
surface or subsurface waters;
(n) Shining artificial light into the Easement Property. Artificial lighting on
the Property shall be shielded to prevent spillover of light into the Easement Property;
(o) Any activities prohibited under the MSHCP; and
(p) Without the prior written consent of Grantee, which Grantee may withhold,
transferring, encumbering, selling, leasing, or otherwise separating the mineral, air or water rights for
the Easement Property; changing the place or purpose of use of the above and below ground water
rights; abandoning or allowing the abandonment of, by s tion or inaction, any water or water rights,
ditch or ditch rights, spring rights, reservoir or storage rights, wells, ground water rights, or other
rights in and to the use of water historically used on or otherwise appurtenant to the Easement
Property.
4. Grantor's Duties. To accomplish the purposes of this Conservation Easement, Grantor,
its successors and assigns shall:
(a) Undertake all reasonable actions to prevent the unlawful entry and trespass
by persons whose activities may degrade or harm the conservation values of the Easement
Property;
(b) Undertake all necessary actions to perfect and defend the rights of the
Grantee and third party beneficiaries identified in section 2 hereunder;
(c) Comply with the terms of this Conservation Easement and cooperate with
Grantee in the protection of the conservation values;
(d) Pursuant to the requirements set out herein, repair and restore damage to
the Conservation Easement directly or indirectly caused by Grantor, Grantor's guests,
representatives, employees or agents, and third parties within Grantor's control; provided,
however, Grantor, its successors or assigns shall not engage in any repair or restoration work on
the Easement Property without first consulting with Grantee; and
(e) Obtain any applicable governmental permits and approvals for any activity
or use permitted by this Conservation Easement and conducted by Grantor, and any such activity
or use shall be undertaken in accordance with all applicable federal, state, local and
administrative agency statutes, ordinances, rules, regulations, orders or requirements.
[69 Install and maintain a fence approved by and in coordination with
Grantee to separate the Easement Property from the balance of the Property.]
5. Reserved Rights. Grantor reserves to itself, and to its personal representatives, heirs,
successors, and assigns, all rights accruing from its ownership of the Easement Property,
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Model Easement February 23, 2010
including the right to engage in or to permit or invite others to engage in all uses of the Easement
Property that are consistent with the purposes of this Conservation Easement.
6. Grantee's Remedies. USFWS and CDFG, as a third -party beneficiaries under this
Conservation Easement, shall have the same rights as Grantee under this section to enforce the terms
of this Conservation Easement. If Grantee determines that Grantor is in violation of the terms of
this Conservation Easement or that a violation is threatened, Grantee shall give written notice to
Grantor, CDFG, and USFWS of such violation and demand in writing the cure of such violation.
If Grantor fails to cure the violation within thirty (30) days after receipt of written notice and
demand from Grantee, or if the cure reasonably requires more than thirty (30) days to complete
and Grantor fails to begin the cure within the 30-day period or fails to continue diligently to
complete the cure, Grantee may bring an action at law or in equity in a court of competent
jurisdiction to 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. Prior
to implementation of any remedial or restorative actions, Grantor shall consult with Grantee.
Without limiting Grantor's liability therefor, 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 Deed. Grantor agrees that
Grantee's remedies at law for any violation of the terms of this Conservation Easement Deed 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 Deed,
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 sections 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, Grantee, or any successor in interest uses or threatens to use
the Easement Property for purposes inconsistent with this Conservation Easement, or Grantee or
any successor in interest releases or abandons this Conservation Easement in whole or in part,
then, notwithstanding Civil Code section 815.7, the California Attorney General, USFWS, 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.
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Model Easement February 23, 2010
6.1 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 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.
6.2 Grantee's Discretion. Enforcement of the terms of this Conservation Easement
Deed by Grantee shall be at the discretion of Grantee, and any forbearance by Grantee to
exercise its rights under this Conservation Easement Deed in the event of any breach of any term
of this Conservation Easement Deed 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 Deed or of any of Grantee's rights under this Conservation Easement
Deed. 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.
6.3 Acts Beyond Grantor's Control. Nothing contained in this Conservation Easement
Deed shall be construed to entitle Grantee to bring any action against Grantor for any injury to or
change in the Easement Property resulting from: (a) any natural cause beyond Grantor's control,
including, without limitation, fire not caused by Grantor, flood, storm, and earth movement, or
any prudent action taken by Grantor under emergency conditions to prevent, abate, or mitigate
significant injury to the Easement Property resulting from such causes; or (b) acts by Grantee or
its employees, directors, officers, agents, contractors, or representatives.
6.4 CDFG and USFWS Right of Enforcement. All rights and remedies conveyed to
Grantee under this Conservation Easement Deed shall extend to and are enforceable by CDFG
and USFWS. These rights are in addition to, and do not limit, the rights of enforcement under
any other applicable permit, agreement or authority, including, but not limited to, the rights of
enforcement under the NCCP and Section 10(a) Permits.
7. Access. This Conservation Easement does not convey a general right of access to the
public.
8. Costs and Liabilities. Grantor retains all responsibilities and shall bear all costs and
liabilities of any kind related to the ownership, operation, upkeep, and maintenance of the
Easement Property. Grantor agrees that Grantee shall have no duty or responsibility for the
operation or maintenance of the Easement Property, the monitoring of hazardous conditions
thereon, or the protection of Grantor, the public or any 01 ird parties from risks relating to
conditions on the Easement Property.
8.1 Taxes; No Liens. Grantor shall pay before delinquency all taxes, assessments,
fees, and charges of whatever description levied on or assessed against the Easement Property by
competent authority (collectively "taxes"), including any taxes imposed upon, or incurred as a
result of, this Conservation Easement, and shall furnish Grantee with satisfactory evidence of
payment upon request. Grantor shall keep Grantee's interest in the Easement Property free from
any liens, including those arising out of any obligations incurred by Grantor or any labor or
materials furnished or alleged to have been furnished to or for Grantor at or for use on the
Easement Property.
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Model Easement February 23, 2010
8.2 Hold Harmless. Grantor shall hold harmless, protect and indemnify Grantee,
USFWS and CDFG, and their respective directors, officers, employees, agents, contractors,
volunteers, and representatives and the heirs, personal representatives, successors and assigns of
each of them (each an "Indemnified Party" and, collectively, "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 (a) 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 Easement Property, regardless of cause, unless due solely to the negligence of the party to be
indemnified; (b) Grantor's obligations hereunder, including but not limited to the obligations
specified in the (sub)sections above entitled "Grantor's Duties," "Costs and Liabilities," and
"Taxes; No Liens"; and (c) the existence or administration of this Conservation Easement. If any
action or proceeding is brought against any of the Indemnified Parties by reason of any such
Claim, Grantor shall, at the election of and upon written notice from Grantee, defend such action
or proceeding by counsel reasonably acceptable to the Indemnified Party or reimburse Grantee
for all charges incurred in defending the action or proceeding.
8.3. Extinguishment. If circumstances arise in the future that render the purposes of this
Conservation Easement impossible to accomplish, this Conservation Easement can only be
terminated or extinguished, in whole or in part, by judicial proceedings in a court of competent
jurisdiction.
8.4 Condemnation. The purposes of the Conservation Easement are presumed to be
the best and most necessary public use as defined at Code of Civil Procedure section 1240.680,
notwithstanding Code of Civil Procedure sections 1240.690 and 1240.700.
9. Assignment by Grantee. This Conservation Easement is transferable, but Grantee or any
successor in interest shall give Grantor, USFWS, and CDFG, at least thirty (30) days prior
written notice of the transfer. Grantee or any successor in interest may assign its rights and
obligations under this Conservation Easement in favor of an entity or organization authorized to
acquire and hold conservation easements pursuant to Civil Code section 815.3 and reasonably
acceptable to the USFWS and CDFG. Grantee or any successor in interest shall require the
assignee to agree in writing that the conservation purposes that this Deed is intended to advance
shall continue to be fulfilled by such assignee in accordance with the terms of this Conservation
Easement Deed, the NCCP Permit and the Section 10(a) Permit, and shall require the assignee to
record the assignment in the county where the Easement Property is located. The failure of
Grantee to perform any act provided in this section shall not impair the validity of this Conservation
Easement or limit its enforcement in any way.
10. Release or Abandonment. Grantee or any successor in interest shall not release, modify,
relinquish or abandon its rights and obligations under this Conservation Easement without the
prior written consent of USFWS and CDFG.
11. Subsequent Transfers. Grantor agrees to incorporate the terms of this Conservation
Easement Deed in any deed or other legal instrument by which Grantor divests itself of any
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Model Easement February 23, 2010
interest in all or any portion of the Property, including, without limitation, a leasehold interest.
Grantor further agrees to give written notice to Grantee, USFWS and CDFG of the intent to
transfer any interest in the Easement Property at least thirty (30) days prior to the date of such
transfer. Grantee, USFWS and CDFG shall have the right to prevent subsequent transfers in
which prospective subsequent claimants or transferees are not given notice of the covenants,
terms, conditions and restrictions of this Conservation Easement Deed. The failure of Grantor or
Grantee to perform any act provided in this section shall not impair the validity of this
Conservation Easement Deed or limit its enforceability in any way.
12. Notices. Any notice, demand, request, consent, approval, or communication that Grantor
or Grantee desires or is required to give to the other shall be in writing, with a copy to the USFWS
and CDFG, and be served personally or sent by recognized overnight courier that guarantees
next -day delivery or by first class mail, postage fully prepaid, addressed as follows:
To Grantor:
To Grantee:
Coachella Valley Conservation Commission
73-710 Fred Waring Drive, Suite 200
Palm Desert, California 92260
With a copy:
To CDFG:
Department of Fish and Game
Office of the General Counsel
1416 Ninth Street, 12th Floor
Sacramento, California 95814-2090
Attn: General Counsel
To USFWS:
U.S. Fish and Wildlife Service
Attn: Field Supervisor
6010 Hidden Valley Road, Suite 101
Carlsbad, CA 92011
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 delivery by overnight
courier or, in the case of delivery by first class mail, five (5) days after deposit into the United
States mail. The parties agree to accept facsimile signed documents and agree to rely upon such
documents as if they bore original signatures. Each party agrees to provide to the other parties,
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Model Easement February 23, 2010
within seventy-two (72) hours after transmission of such a facsimile, the original documents that
bear the original signatures.
13. Amendment. This Conservation Easement Deed may be amended by Grantor and
Grantee only by mutual written agreement, with the written approval of the USFWS and CDFG
(which approval shall not be unreasonably withheld or delayed). Any such amendment shall be
consistent with the purposes of this Conservation Easement and shall not affect its perpetual
duration. Any such amendment shall be recorded in the official records of Riverside County,
State of California.
14. No Hazardous Materials Liability. Grantor represents and warrants that it has no
knowledge of any release, threatened release, storage or disposal of Hazardous Materials
(defined below) in, on, under, about or affecting the Easement Property.
14.1 Without limiting any other indemnification obligations set out hereinabove,
Grantor agrees to indemnify, protect and hold harmless the Indemnified Parties (as defined
hereinabove) against any and all Claims (as defined hereinabove) arising from or connected with
any Hazardous Materials present, alleged to be present, or otherwise associated with the
Easement Property at any time, except any Hazardous Materials placed, disposed or released by
Grantee, its employees or agents. This release and indemnification includes, without limitation,
Claims for injury to or death of any person or physical damage to any property; and the violation or
alleged violation of, or other failure to comply with, any Environmental Laws (defined below). If
any action or proceeding is brought against any of the Indemnified Parties by reason of any such
Claim, Grantor shall, at the election of and upon written notice from Grantee, defend such action
or proceeding by counsel reasonably acceptable to the Indemnified Party or reimburse Grantee
for all charges incurred in defending the action or proceeding.
14.2 Despite any contrary provision of this Conservation Easement Deed, 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. sections 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.
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Model Easement February 23, 2010
14.3 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 of 1976 (42 U.S.C. §
6901, et seq .); the Hazardous Materials Transportation Safety and Security Reauthorization Act
of 2005 (49 U.S.C. sections 5101, et seq.); the Hazardous Materials Transportation Act (49
U.S.C. sections 6901 et seq.); the Hazardous Waste Control Law (California Health & Safety
Code sections 25100, et seq.); the Carpenter -Presley -Tanner 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 Deed. 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.
14.4 Grantor represents, warrants and covenants to Grantee that Grantor's activities
(including those of its agents, employees, invitees and contractors) upon and use of the Easement
Property will comply with all Environmental Laws.
15. General Provisions.
15.1 Controlling Law. The interpretation and performance of this Conservation
Easement Deed shall be governed by the laws of the State of California, disregarding the
conflicts of law principles of such state, and by applicable federal law (including the FESA).
15.2 Liberal Construction. Any general rule of construction to the contrary
notwithstanding, this Conservation Easement Deed shall be liberally construed to affect the
purposes of this Conservation Easement and the policy and purpose of Civil Code sections 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.
15.3 Severability. If a court of competent jurisdiction voids or invalidates on its face
any provision of this Conservation Easement Deed, such action shall not affect the remainder of
this Conservation Easement Deed. If a court of competent jurisdiction voids or invalidates the
application of any provision of this Conservation Easement Deed to a person or circumstance,
such action shall not affect the application of the provision to other persons or circumstances.
15.4 Entire Agreement. This instrument 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. No alteration or variation
of this instrument shall be valid or binding unless contained in a written amendment in
compliance with all provisions herein.
15.5 No Forfeiture. Nothing contained herein will result in a forfeiture or reversion of
Grantor's title in any respect.
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15.6 Successors. The covenants, terms, conditions, and restrictions of this
Conservation Easement Deed shall be binding upon, and inure to the benefit of, the parties hereto
and their respective personal representatives, heirs, successors, and assigns and shall constitute a
servitude running in perpetuity with the Easement Property.
15.7 Termination of Rights and Obligations. A party's rights and obligations under
this Conservation Easement Deed terminate upon the transfer of its interest in the Conservation
Easement or Easement Property, except that liability for acts or omissions occurring prior to
transfer shall survive transfer.
15.8 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 its
construction or interpretation.
15.9 Warranty. Grantor represents and warrants that there are no outstanding
mortgages, liens, encumbrances or other interests in the Easement Property which have not been
expressly subordinated to this Conservation Easement Deed, and that the Easement Property is
not subject to any other conservation easement or interest that is adverse to this Conservation
Easement,
15.10 Additional Easements. Grantor shall not grant any additional easements, rights of
way or other interests in the Easement Property (other than a security interest that is subordinate
to this Conservation Easement Deed), or grant or otherwise abandon or relinquish any water
agreement relating to the Easement Property, without first obtaining the written consent of
Grantee, USFWS and CDFG. Grantee, USFWS and CDFG may withhold such consent if it
determines that the proposed interest or transfer is inconsistent with the purposes of this
Conservation Easement or will impair or interfere with the conservation values of the Easement
Property. This section shall not prohibit transfer of a fee or leasehold interest in the Easement
Property that is subject to this Conservation Easement Deed and otherwise complies with the
terms of this Deed.
15.11 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. In the event of any
disparity between the counterparts produced, the recorded counterpart shall be controlling.
15.12 Recording. Grantee shall record this Conservation Easement in the Official Records
of the County in which the Property is located, and may re-record it at any time as Grantee deems
necessary to preserve its rights in this Conservation Easement.
IN WITNESS WHEREOF Grantor has executed this Conservation Easement Deed the day
and year first above written.
GRANTOR:
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Idioms
AuthorLed Representative
Approved as to form:
General Counsel for Grantor
GRANTEE:
Coachella Valley Conservation Commission
By:
TITLE:
Approved as to form:
By:
Authorised Representative
Toni Eggebraaten, General Counsel
Coachella Valley Association of Governments
Approved as to form:
, General Counsel
California Department of Fish & Game
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CERTIFIC,A TE OF ACCEPTANCE
'this is to certify that the interest in real property conveyed by the foregoing Conservation
Easement Deed by dated
, is hereby accepted by the undersigned officer on behalf of the Grantee,
Coachella Valley Conservation Commission, pursuant to authority conferred by the Commission
on
COACHELLA VALLEY CONSERVATION COMMISSION
TITLE:
Authorised Representative
DATE:
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