CVAG-Other Agencies/Multiple Species Implementation Agr 07Coachella Valley Multiple Species Habitat
Conservation Plan
Natural Community Conservation Plan
Final
Implementing Agreement
February 2006
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TABLE OF CONTENTS
Page(s)
PARTIES.................................................................................................................I
DEFINED TERMS..................................................................................................I
2.1 Acceptable Biologist..........................................................................
2.2 Acquisition and Funding Coordinating Committee ...........................
2.3 Adaptive Management.......................................................................
2.4 Additional Conservation Lands.........................................................
2.5 Agreement..........................................................................................
2.6 Allowable Uses ................................. :................................................
2.7 Annual Report(s)................................................................................
2.8 Area Plan............................................................................................
2.9 Biological Corridor............................................................................
2.10 Caltrans..............................................................................................
2.11 Candidate Species..............................................................................
2.12 CDFG.................................................................................................
2.13 CEQA.................................................................................................
2.14 Certificate of Inclusion......................................................................
2.15 CESA.................................................................................................
2.16 Changed Circumstances.....................................................................
2.17 Cities..................................................................................................
2.18 Coachella Valley Fringe -Toed Lizard Habitat Conservation Plan or
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CVFTLHCP................................................................................................3
2.19 Complementary Conservation.....................................................................3
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2.20 Conservation....................................................................
2.21 Conservation Areas..........................................................
2.22 Conservation Goal(s).......................................................
2.23 Conservation Level..........................................................
2.24 Conservation Objective ....................................................
2.25 Conservation Strategy......................................................
2.26 Conserved Habitat............................................................
2.27 Core Habitat.....................................................................
2.28 County..............................................................................
2.29 County Flood Control ......................................................
2.30 County Parks....................................................................
2.31 County Waste...................................................................
2.32 Covered Activities...........................................................
2.33 Covered Species...............................................................
2.34 Critical Habitat.................................................................
2.35 CVAG..............................................................................
2.36 CVCC...............................................................................
2.37 CVMC..............................................................................
2.38 CVWD.............................................................................
2.39 Development....................................................................
2.40 Discretionary Project.......................................................
2.41 Effective Date..................................................................
2.42 Emergency.......................................................................
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TABLE OF CONTENTS
Pa e s
2.43
Endangered Species.....................................................................................5
2.44
Environmental Laws....................................................................................5
2.45
Essential Ecological Processes....................................................................5
2.46
Essential Habitat..........................................................................................5
2.47
Executive Director.......................................................................................5
2.48
Existing Conservation Lands.......................................................................5
2.49
Existing Uses...............................................................................................5
2.50
FESA............................................................................................................5
2.51
Feasible........................................................................................................5
2.52
Habitat..........................................................................................................5
2.53
HabiTrak......................................................................................................6
2.54
IID................................................................................................................6
2.55
Implementing Agreement or IA...................................................................6
2.56
Implementation Mechanism.........................................................................6
2.57
Independent Science Advisors.....................................................................6
2.58
Joint Project Review Process.......................................................................6
2.59
Land Manager..............................................................................................6
2.60
Land Use Adjacency Guidelines..................................................................6
2.61
Linkage........................................................................................................6
2.62
Listed Species..............................................................................................6
2.63
Local Development Mitigation Fee.............................................................6
2.64
Local Permittees...........................................................................................6
2.65
Maintenance Activities................................................................................6
TABLE OF CONTENTS
2.66 Major Amendments ...................................................
2.67 Management Program ................................................
2.68 MBTA........................................................................
2.69 MBTA Special Purpose Permit ..................................
2.70 Minor Amendments ...................................................
2.71 Mitigation Lands ........................................................
2.72 Monitoring Program ...................................................
2.73 Monitoring Program Administrator ...........................
2.74 Monitoring Report(s).................................................
2.75 MSHCP......................................................................
2.76 MSHCP Reserve System ...........................................
2.77 NCCP Act..................................................................
2.78 NCCP Permit.............................................................
2.79 NEPA.........................................................................
2.80 No Surprises Assurances ............................................
2.81 Organizational Structure ............................................
2.82 Operation and Maintenance Activities or O&M........
2.83 Other Conserved Habitat ............................................
2.84 Participating Special Entity ........................................
2.85 Parry and Parties........................................................
2.86 Permit(s).....................................................................
2.87 Permittees...................................................................
2.88 Plan............................................................................
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2.89
Plan Area......................................................................................................8
2.90
Plan Participants...........................................................................................9
2.91
Planning Agreement.....................................................................................9
2.92
Private Conservation Land...........................................................................9
2.93
Reserve Lands..............................................................................................9
2.94
Reserve Management Oversight Committee or RMOC ..............................9
2.95
Reserve Management Unit or RMU............................................................9
2.96
Reserve Management Unit Committee or RMUC.......................................9
2.97
Reserve Management Unit Plan or RMUP..................................................9
2.98
Reserve System Assembly...........................................................................9
2.99
Rough Step...................................................................................................9
2.100
Rough Step Analysis Unit............................................................................9
2.101
Scientific Advisory Committee....................................................................9
2.102
Section 10(a) Permit....................................................................................9
2.103
Species Conservation Goal(s)......................................................................9
2.104
State Assurances........................................................................................10
2.105
State Parks..................................................................................................10
2.106
State Permittee(s).......................................................................................10
2.107
Take............................................................................................................10
2.108
Take Authorization....................................................................................10
2.109
Third Party Granted Take Authorization...................................................10
2.110
Third Party Take Authorization.................................................................10
2.111
Threatened Species....................................................................................10
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2.112 Unforeseen Circumstances.........................................................................10
2.113 Unlisted Species.........................................................................................10
2.114 USFWS......................................................................................................10
2.115 Wildlife Agencies......................................................................................10
3
RECITALS............................................................................................................11
4
PURPOSES............................................................................................................13
5
INCORPORATION OF THE MSHCP.................................................................14
6
CONS],RVATION STRATEGY..........................................................................14
7
MSHCP RESERVE SYSTEM ASSEMBLY........................................................15
7.1 Overview....................................................................................................15
7.2 Contribution of Existing Conservation Lands...........................................15
7.3 Complementary Conservation...................................................................15
7.4 Contribution of Additional Conservation Lands........................................15
7.5 Review of Development Proposals in Conservation Areas .......................16
7.6 Reserve Assembly Accounting..................................................................16
8
MSHCP RESERVE SYSTEM MANAGEMENT REQUIREMENTS.................16
8.1 Overview....................................................................................................16
8.2 .Management Activities..............................................................................16
8.3 :Management Program................................................................................16
9.0
MSHCP RESERVE SYSTEM MONITORING REQUIREMENTS ....................16
9.1 Monitoring Program...................................................................................16
9.2 ]Monitoring Program Administrator...........................................................17
9.3 Monitoring Reporting Requirements.........................................................17
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10 REPORTING REQUIREMENTS.........................................................................17
10.1 Annual Reporting.......................................................................................17
10.2 Certificate of Reports .............................................. :..................................
18
11 MSHCP IMPLEMENTATION STRUCTURE....................................................18
11.1 Permittee Implementation Mechanisms.....................................................18
11.1.1 The Cities.......................................................................................18
11.1.2 The County.....................................................................................19
11.1.3 County Flood Control....................................................................19
11.1.4 County Parks..................................................................................19
11.1.5 County Waste.................................................................................19
11.1.6 CVCC.............................................................................................19
11.1.7 CVAG............................................................................................20
11.1.8 CVMC............................................................................................20
11.1.9 Caltrans..........................................................................................20
11.1.10 State Parks....................................................................................20
11.1.11 CVWD.........................................................................................20
11.1.12 IID................................................................................................20
11.2 Organizational Structure............................................................................20
11.2.1 Overview........................................................................................20
11.2.2 CVCC Organization.......................................................................20
A. Overview............................................................................20
B. Duties and Responsibilities................................................20
11.2.3 Acquisition and Funding Coordinating Committee .......................21
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11.2.4 Joint Project Review Process.........................................................21
11.2.5 CVCC Executive Director.............................................................21
A. Selection.............................................................................21
B. Duties and Responsibilities................................................21
11.2.6 Reserve Management Oversight Committee.................................21
A. Formation and Representation...........................................21
B. Duties and Responsibilities................................................22
11.2.7 Reserve Management Unit Committees........................................22
11.2.8 Land Manager................................................................................22
11.2.9 Monitoring Program Administrator...............................................22
11.2.10 MSHCP Reserve Management Unit Plan ....................................22
11.3
Changed Circumstances.............................................................................22
11.3.1 General Terms................................................................................22
11.3.2 Permittees-Initiated Response to Changed Circumstances ............
23
11.3.3 Wildlife Agency -Initiated Response to Changed
Circumstances................................................................................23
11.3.4 Condemnation of Lands Providing Conservation Benefits
...........23
11.3.5 New Listings of Species Not Covered by the MSHCP..................24
11.4
Annexation and Deannexation of Lands....................................................24
11.5
Incorporation of New Cities within MSHCP Boundaries ..........................25
11.6
Growth -Inducing Effects...........................................................................25
11.7
Participating Special Entity........................................................................25
11.7.1 Take Authorization for Participating Special Entities ...................25
11.7.2 Grant of Take Authorization to Participating Special Entity ......... 25
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11.7.3 Requirements for Participating Special Entities ............................26
12 FUNDING OF THE MSHCP................................................................................27
12.1
Local Obligations.......................................................................................27
12.1.1 Local Permittee Additional Conservation Lands Obligations .......27
12.1.2 Administration Costs.....................................................................27
12.1.3 Local Permittee Monitoring and Management Obligations ...........
27
12.2
Local Funding Sources..............................................................................27
12.2.1 Local Development Mitigation Fees..............................................27
12.2.2 Transportation and Other Regional Infrastructure Project
Contributions..................................................................................28
12.2.3 Landfill Tipping Fees.....................................................................28
12.2.4 Eagle Mountain Landfill Environmental Mitigation Trust
Fund...............................................................................................28
12.2.5 Additional Funding........................................................................28
12.3
Annual Evaluation of Funding...................................................................28
13 PERMITTEES' TAKE AUTHORIZATION AND OBLIGATIONS ...................29
13.1
Permittees' Take Authorization..................................................................29
13.2
County and Cities Obligations...................................................................29
13.3
CVCC Obligations.....................................................................................30
13.4
CVAG Obligations.....................................................................................31
13.5
County Flood Control Obligations............................................................31
13.6
County Parks Obligations..........................................................................32
13.7
County Waste Obligations.........................................................................33
13.8
CVWD Obligations....................................................................................33
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13.9
IID Obligations..........................................................................................34
13.10
Caltrans Obligations...................................................................................35
13.11
State Parks Obligations..............................................................................36
13.12
CVMC Obligations....................................................................................36
14 USFWS OBLIGATIONS AND ASSURANCES..................................................37
14.1
Take Authorization for Covered Activities................................................37
14.2
USFWS Findings - Covered Species.........................................................37
14.3
Section 10(a) Permit Coverage..................................................................37
14.4
Implementation Assistance........................................................................37
14.5
Assurances Regarding MSHCP.................................................................38
14.6
Take Authorization for Newly Regulated Covered Species; Savings
Provision....................................................................................................38
14.7
Changes in the Environmental Laws.........................................................38
14.8
Section 7 Consultations..............................................................................38
14.9
Critical Habitat Designation for Covered Species.....................................39
14.10
Future Recovery Plans...............................................................................39
14.11
No Surprises Assurances and Unforeseen Circumstances .........................40
14.11.1 No Surprises Assurances..............................................................40
14.12
Migratory Bird Treaty Act.........................................................................41
14.13
Management of Land.................................................................................41
15 CDFG
OBLIGATIONS AND ASSURANCES....................................................42
15.1
Issuance of NCCP Permit..........................................................................42
15.2
NCCP Permit Findings..............................................................................42
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15.3
State Assurances........................................................................................42
15.4
Implementation Assistance........................................................................43
15.5
Fully Protected Species..............................................................................43
15.6
Changes in the Environmental Laws.........................................................43
15.7
Consultations by CDFG.............................................................................43
15.8
Management of Land.................................................................................44
RELATIONSHIP TO OTHER EXISTING HABITAT CONSERVATION
PLANS, NCCP PERMITS AND SECTION 2081 PERMITS .............................44
16.1
General.......................................................................................................44
16.2
Coachella Valley Fringe -Toed Lizard Take Authorization .......................44
THIRD PARTY TAKE AUTHORIZATION.......................................................44
17.1
Authorization.............................................................................................44
17.2
Timing of Take Authorization...................................................................45
17.3
Effect of MSHCP Amendments on Third Parties......................................45
17.4
Effect of Revocation or Suspension of Permits on Third Parties..............45
17.5
Effect of No Surprises Assurances on Third Parties..................................46
17.6
Retention of Enforcement Authority Over Third Parties ...........................46
COOPERATIVE EFFORT....................................................................................46
TERM....................................................................................................................46
19.1
Effective Date............................................................................................46
19.2
Term of the Agreement..............................................................................46
19.3
Term of the Permits...................................................................................46
19.4
Extension of the Permit..............................................................................47
19.5
Permanent Preservation.............................................................................47
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20 MODIFICATIONS AND AMENDMENTS TO THE MSHCP ...........................47
20.1
Clerical Changes........................................................................................47
20.2
Land Use Changes.....................................................................................47
20.3
Adaptive Management Changes................................................................47
20.4
Minor Amendments...................................................................................47
20.4.1 List of Minor Amendments............................................................48
20.4.2 Minor Amendments not Requiring Wildlife Agencies
Concurrence...................................................................................48
20.4.3 Minor Amendments Requiring Wildlife Agencies
Concurrence...................................................................................49
20.4.4 Procedure.......................................................................................49
20.5
Major Amendments...................................................................................50
20.5.1 List of Major Amendments............................................................50
20.5.2 Procedure.......................................................................................50
20.6
Like Exchanges in Conservation Areas.....................................................51
21 TERM NATION OF PERMITS............................................................................51
21.1
Termination in General..............................................................................51
21.2
Continuing Obligations..............................................................................51
21.3
Final Accounting........................................................................................51
21.4
Dissolution of the CVCC...........................................................................52
22 WITHDRAWAL OF PERMITTEE(S)..................................................................52
22.1
Withdrawal in General...............................................................................52
22.2
Mitigation Responsibilities........................................................................52
22.3
Termination of Permittee Take Authorization...........................................52
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22.4
Evaluation of Remaining Permits..............................................................52
23
REMEDIES AND ENFORCEMENT...................................................................53
23.1
Remedies in General..................................................................................53
23.1.1 No Monetary Damages.................................................................53
23.2
Default........................................................................................................53
23.2.1 Notice and Opportunity to Cure Default.......................................53
23.3
Injunctive and Temporary Relief..............................................................54
23.4
Limitation and Extent of Enforceability....................................................54
23.5
Revocation or Suspension of the Permits..................................................54
23.6
Informal Meet and Confer Process for Disputes Concerning Covered
Activities, State Streambed Alteration Agreements, Federal 404
Permits, and ESA Section 7 Consistency Consultation .............................55
23.7
Continuation Of Take Authorization after Revocation, Suspension or
Permittee Withdrawal................................................................................56
24
FORCI,
MAJEURE...............................................................................................56
25
LEGAL
AUTHORITY OF THE USFWS.............................................................57
26
LEGAL
AUTHORITY OF THE CDFG................................................................57
27
MISCELLANEOUS PROVISIONS......................................................................57
27.1
Response Times.........................................................................................57
27.2
No Partnership...........................................................................................57
27.3
Nullification of Agreement........................................................................
57
27.4
Notices.......................................................................................................57
27.5
Entire Agreement.......................................................................................64
27.6
Assignment or Transfer..............................................................................64
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27.7
Defense......................................................................................................64
27.8
Attorneys' Fees...........................................................................................64
27.9
Elected Officials Not to Benefit.................................................................64
27.10
Availability of Funds.................................................................................64
27.11
Governing Law..........................................................................................65
27.12
Duplicate Originals....................................................................................65
27.13
Relationship to the FESA, CESA, NCCP Act and Other Authorities . ......
65
27.14
No Third Party Beneficiaries.....................................................................65
27.15
References to Regulations..........................................................................66
27.16
Applicable Laws........................................................................................66
27.17
Severability................................................................................................66
27.18
Headings....................................................................................................66
27.19
Due Authorization......................................................................................66
27.20
Faxed Signatures........................................................................................66
27.21
Calculation of Dates and Dates of Performance........................................66
27.22
Further Instruments....................................................................................66
RVPUB\70841 1.1
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IMPLEMENTING AGREEMENT
for the
COACHELLA VALLEY
MULTIPLE SPECIES HABITAT CONSERVATION PLAN/
NATURAL COMMUNITY CONSERVATION PLAN
by and between
COACHELLA VALLEY ASSOCIATION OF GOVERNMENTS,
COACHELLA VALLEY CONSERVATION COMMISSION, COUNTY OF
RIVERSIDE, RIVERSIDE COUNTY FLOOD CONTROL AND WATER
CONSERVATION DISTRICT, RIVERSIDE COUNTY WASTE RESOURCES
MANAGEMENT DISTRICT, RIVERSIDE COUNTY REGIONAL PARKS
AND OPEN SPACE DISTRICT, CITY OF CATHEDRAL CITY, CITY OF
COACHELLA, CITY OF DESERT HOT SPRINGS, CITY OF INDIAN
WELLS, CITY OF INDIO, CITY OF LA QUINTA, CITY OF PALM DESERT,
CITY OF PALM SPRINGS, CITY OF RANCHO MIRAGE, COACHELLA
VALLEY WATER DISTRICT, IMPERIAL IRRIGATION DISTRICT,
COACHELLA VALLEY MOUNTAINS CONSERVANCY, CALIFORNIA
DEPARTMENT OF FISH AND GAME, CALIFORNIA DEPARTMENT OF
TRANSPORTATION, CALIFORNIA DEPARTMENT OF PARKS AND
RECREATION, AND UNITED STATES FISH AND WILDLIFE SERVICE
PARTIES
This Implementing Agreement ("Agreement"), made and entered into as of this day of j
2006, by and among the Coachella Valley Association of Governments, Coachella Valley
Conservation Commission, County of Riverside, Riverside County Flood Control and Water
Conservation District, Riverside County Regional Parks and Open Space District, Riverside
County Waste Resources Management District, City of Cathedral City, City of Coachella, City
of Desert Hot Springs, City of Indian Wells, City of Indio, City of La Quinta, City of Palm
Desert, City of Palm Springs, City of Rancho Mirage, Coachella Valley Water District, Imperial
Irrigation District., Coachella Valley Mountains Conservancy, California Department of
Transportation, California Department of Parks and Recreation (together with their successors
and assigns collectively, the "Permittees"), California Department of Fish and Game and United
States Fish and Wildlife Service (collectively, the "Parties"), defines the Parties' roles and
responsibilities and provides a common understanding of the actions that will be undertaken to
implement the Coachella Valley Multiple Species Habitat Conservation Plan/Natural
Community Conservation Plan ("MSHCP" or "Plan"). The United States Fish and Wildlife
Service and the California Department of Fish and Game may be referred to collectively herein
as the "Wildlife Agencies."
2. DEFINED TERMS
Terms used in this Agreement and specifically defined in the Federal Endangered Species
Act, California Endangered Species Act, the California Natural Community Conservation
Planning Act or the MSHCP shall have the same meaning when utilized in this Agreement,
unless this Agreement expressly provides otherwise.
The following terms used in this Agreement shall have the meanings set forth below:
2.1 "Acceptable Biologist" means a biologist whose name is on a list maintained by
the Coachella Valley Conservation Commission of biologists who are acceptable to the
California Department of Fish and Game and the United States Fish and Wildlife Service for
purposes of conducting surveys of Covered Species.
2.2 "Acquisition and Funding Coordinating Committee" means a committee formed
by the Coachella Valley Conservation Commission to provide input on local funding priorities
and Additional Conservation Land acquisitions.
2.3 "Adaptive Management" means to use the results of new information gathered
through the Monitoring Program of the Plan and from other sources to adjust management
strategies and practices to assist in providing for the Conservation of Covered Species.
2.4 "Additional Conservation Lands" means Conserved Habitat that will contribute to
Reserve System Assembly, consisting of state and federal acquisition and mitigation for
Permittees, as described in Sections 4.1 and 4.2.2 of the MSHCP.
2.5 "Agreement" means this Implementing Agreement.
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2.6 "Allowable Uses" means uses allowed within the MSHCP Reserve System, as
defined in Section 7.3.2 of the MSHCP.
2.7 "Annual Report(s)" means the report(s) prepared pursuant to the requirements of
Section 6.4 of the MSHCP.
2.8 "Area Plan" means a community planning area defined in the County of Riverside
General Plan. Four County of Riverside Area Plans are located within the MSHCP Plan Area.
2.9 "Biological Corridor" means the wildlife movement area that is constrained by
existing development, freeways, or other impediments. [See also "Linkage"]
2.10 "Ca.ltrans" means the California Department of Transportation, a department of
the California Business, Transportation, and Housing Agency.
2.11 "Candidate Species" means both (1) a species formally noticed by the California
Fish and Game Commission as under review for listing as threatened or endangered, or a species
for which the Fish and Game Commission has published a notice of proposed regulation to add a
species as threatened or endangered, and (2) a species which the USFWS has identified as being
a candidate for listing, but for which development of a listing regulation is precluded by other
higher priority listing activities.
2.12 "CDFG" means the California Department of Fish and Game, a department of the
California Resources Agency.
2.13 "CEQA" means the California Environmental Quality Act (California Public
Resources Code §§ 21000 et seq.) and all guidelines promulgated thereunder, as amended. For
the MSHCP, CVAG shall be the lead agency under CEQA, as defined under State CEQA
Guidelines section 15367.
2.14 "Certificate of Inclusion" means the document attached as Exhibit "G" to this
Agreement that would be required to be executed prior to an applicant receiving Take
Authorization pursuant to Section 11.7 of this Agreement.
2.15 "CESA" means the California Endangered Species Act (California Fish and Game
Code, §§ 2050 et seq.) and all rules, regulations and guidelines promulgated thereunder, as
amended.
2.16 "Changed Circumstances" means changes in circumstances affecting a Covered
Species or geographic area covered by the MSHCP that can reasonably be anticipated by the
Parties and that can reasonably be planned for in the MSHCP. Changed Circumstances and the
planned responses to those circumstances are more particularly described in Section 6.8.3 of the
MSHCP. Changed Circumstances do not include Unforeseen Circumstances.
2.17 "Cities" means collectively the Cities of Cathedral City, Coachella, Desert Hot
Springs, Indian Wells, Indio, La Quinta, Palm Desert, Palm Springs and Rancho Mirage.
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2.18 "Coachella Valley Fringe -Toed Lizard Habitat Conservation Plan" or "CVFTL
HCP" means the Habitat Conservation Plan, dated April 21, 1986, more particularly described in
Section 16.2 of this Agreement.
2.19 "Complementary Conservation" means the land projected to be acquired in the
Conservation Areas for Conservation purposes independent of, but compatible with, the MSHCP
as described in Sections 4.1 and 4.2.1 of the MSHCP.
2.20 "Conservation" means to use, and the use of, methods and procedures within the
MSHCP Reserve System and within the Plan Area as set forth in the MSHCP, that are necessary
to bring any species to the point at which the measures provided pursuant to FESA and the
California Fish and Game Code are no longer necessary. However, Permittees will have no duty
to enhance, restore, or revegetate MSHCP Reserve System lands unless required by the Plan, this
Agreement or Permits or agreed to through implementation of the Plan.
2.21 "Conservation Areas" means a system of lands described in Section 4.3 of the
MSHCP that provides Core Habitat and Other Conserved Habitat for the Covered Species,
conserves natural communities, conserves Essential Ecological Processes, and secures Biological
Corridors and Linkages between major Habitat areas. There are 21 Conservation Areas from
which the MSHCP Reserve System will be assembled.
2.22 "Conservation Goal(s)" means a broad statement of intent that describes how the
Plan will accomplish the protection of Core Habitat, Essential Ecological Processes, Biological
Corridors, and Linkages in the MSHCP Reserve System to ensure that the Covered Species are
adequately conserved. Conservation Goals are also designed to ensure the persistence of natural
communities.
2.23 "Conservation Level' means a numerical designation, as described in Section 2.4
of the MSHCP, assigned to all land within the Plan Area.
2.24 "Conservation Objective(s)" means measurable statements of actions or measures
that will lead to attainment of the Conservation Goals.
2.25 "Conservation Strategy" means the overall approach to assure Conservation of
Covered Species within the Plan Area.
2.26 "Conserved Habitat" means land that is permanently protected and managed for
the benefit of the Covered Species under the institutional arrangements that provide for its
ongoing management, and under the legal arrangements that prevent its conversion to other uses.
2.27 "Core Habitat" means the areas identified in the Plan for a given species that are
composed of a Habitat patch or aggregation of Habitat patches that (1) are of sufficient size to
support a self-sustaining population of that species, (2) are not fragmented in a way to cause
separation into isolated populations, (3) have functional Essential Ecological Processes, and (4)
have effective Biological Corridors and/or Linkages to other Habitats, where feasible, to allow
gene flow among populations and to promote movement of large predators.
2.28 "County" means the County of Riverside.
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2.29 "County Flood Control' means the Riverside County Flood Control and Water
Conservation District.
2.30 "County Parks" means the Riverside County Regional Parks and Open Space
District.
2.31 "County Waste" means the Riverside County Waste Resources Management
District.
2.32 "Covered Activities" means certain activities carried out or conducted by
Permittees, Participating Special Entities, Third Parties Granted Take Authorization and others
within the MSHCP Plan Area, as described in Section 7 of the MSHCP, that will receive Take
Authorization under the Section 10(a) Permit and the NCCP Permit, provided these activities are
otherwise lawful.
2.33 "Covered Species" means the species for which Take Authorization is provided
through the Permits issued in conjunction with this Agreement. These species are discussed in
Section 9 of the MSHCP and listed in Exhibit "C" to this Agreement.
2.34 "Critical Habitat" means Habitat for species listed under FESA that has been
designated pursuant to section 4 of FESA and identified in 50 Code of Federal Regulations
sections 17.95 and 17.96.
2.35 "CVAG" means the Coachella Valley Association of Governments, a joint powers
authority comprised of the Cities of Cathedral City, Coachella, Desert Hot Springs, Indian Wells,
Indio, La Quinta, Palm Desert, Palm Springs, Rancho Mirage, the County of Riverside and non -
Parties the City of Blythe, the Agua Caliente Band of Cahuilla Indians, the Cabazon Band of
Mission Indians and the Torres Martinez Band of Cahuilla Indians, that functions as the lead
agency for the preparation of the MSHCP.
2.36 "CVCC" means the Coachella Valley Conservation Commission, a joint powers
authority formed by the Local Permittees to provide primary policy direction for implementation
of the MSHCP, as set forth in Section 6.1.1 of the MSHCP and Section 11.2.2 of this Agreement.
2.37 "CVMC" means the Coachella Valley Mountains Conservancy, a state agency
within the California Resources Agency.
2.38 "CVWD" means the Coachella Valley Water District.
2.39 "Development' means the uses to which land shall be put, including construction
of buildings, structures, infrastructure and all associated alterations of the land.
2.40 'Discretionary Project' means a proposed project requiring discretionary action
by a Permittee, as that term is used in CEQA and defined in State CEQA Guidelines section
15357, including issuance of a grading permit for County projects.
2.41 "Effective Date" means the date on which this Agreement takes effect, as set forth
in Section 19.1 of this Agreement.
2.42 "Emergency" means a sudden, unexpected occurrence, involving a clear and
imminent danger, demanding immediate action to prevent or mitigate the loss of, or damage to,
life, health, property, or essential public services. Emergency includes such occurrences as fire,
flood, earthquake, or other soils or geologic movements, as well as such occurrences as riot,
accident, or sabotage.
2.43 "Endangered Species" means those species listed as endangered under FESA
and/or CESA.
2.44 "Environmental Laws" means state and federal laws governing or regulating the
impact of Development activities on land, water or biological resources as they relate to Covered
Species, including but not limited to CESA, FESA, the NCCP Act, CEQA, NEPA, the MBTA,
the Fish and Wildlife Coordination Act, the Fish and Wildlife Act of 1956, the Federal Water
Pollution Control Act (33 U.S.C. §§ 1251 et seq.), the Native Plant Protection Act (California
Fish and Game Code, §§ 1900 et seq.), Fish and Game Code sections 1801, 1802, 3511, 4700,
5050 and 5515 and includes any regulations promulgated pursuant to such laws.
2.45 'Essential Ecological Processes" means processes that maintain specific Habitat
types and are necessary to sustain the Habitat (in a state usable by Covered Species). Essential
Ecological Processes may include abiotic hydrological processes (both subsurface and surface),
erosion, deposition, blowsand movement, substrate development and soil formation, disturbance
regimes such as flooding and fire, and biotic processes such as reproduction, pollination,
dispersal, and migration.
2.46 'Essential Habitat" means certain lands delineated in the Recovery Plan for
Bighorn Sheep in the Peninsular Ranges, California (USFWS 2000).
2.47 'Executive Director" means the Director of the CVCC
2.48 'Existing Conservation Lands" means a subset of the MSHCP Reserve System
lands consisting of lands in public or private ownership and managed for Conservation and/or
open space values that contribute to the Conservation of Covered Species, as generally depicted
in Figure 4-2 of the MSHCP.
2.49 'Existing Uses" means an existing use, such as a home or sand and gravel mine,
which is the dominant use on the property.
2.50 "FESA" means the Federal Endangered Species Act (16 U.S.C. §§ 1531 et seq.)
and all rules and regulations promulgated thereunder, as amended.
2.51 'Feasible" means capable of being accomplished in a successful manner within a
reasonable period of time, taking into account economic, environmental, legal, social, and
technological factors.
2.52 "Habitat" means the combination of environmental conditions of a specific place
providing for the needs of a species or a population of such species.
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2.53 "HabiTrak" means a GIS application to provide data on Habitat loss and
Conservation, which occurs under the Permits.
2.54 "IID" means the Imperial Irrigation District.
2.55 "Implementing Agreement" or "IA" means this Agreement, which implements the
terms and conditions of the MSHCP.
2.56 "Implementation Mechanism" means the method selected by the Permittees to
ensure implementation of the MSHCP.
2.57 "Independent Science Advisors" means the qualified biologists, conservation
experts and others that provide scientific input to assist in the planning and implementation of
the MSHCP for the benefit of the Covered Species, as set forth in Section 3.1.2 of the MSHCP.
2.58 "Joint Project Review Process" means the review process described in Section
6.6.1.1 of the MSHCP for public and private Development proposed in Conservation Areas.
2.59 "Land Manager" means the entity or entities which have the responsibility to
manage land acquired by the Permittees as set forth in Section 6.1.5 of the MSHCP.
2.60 "Land Use Adjacency Guidelines" means standards delineated in Section 4.5 of
the MSHCP for land uses adjacent to or within Conservation Areas that are necessary to avoid or
minimize edge effects. "Adjacent" means that a parcel shares a common boundary with a parcel
in a Conservation Area.
2.61 "Linkage" means Habitat that provides for the occupancy of Covered Species and
their movement between larger blocks of Habitat over time, potentially over a period of
generations. In general, Linkages are large enough to include adequate Habitat to support small
populations of the species and, thus, do not require that an individual of the species transit the
entire Linkage to maintain gene flow between populations. What functions as a Linkage for one
species may provide only a Biological Corridor or no value for other species. [See also
"Biological Corridor"]
2.62 "Listed Species" means a species that is listed under FESA and/or CESA.
2.63 "Local Development Mitigation Fee" means the fee imposed by applicable Local
Permittees on new Development pursuant to Government Code sections 66000 et seq.
2.64 "Local Permittees" means CVAG, CVCC, County, County Flood Control,
County Parks, County Waste, CVWD, IID, and the Cities.
2.65 "Maintenance Activities" means those Covered Activities that include the
ongoing maintenance of public facilities as described in Section 7.1 of the MSHCP.
2.66 "Major Amendments" means those proposed amendments to the MSHCP and this
Agreement as described in Section 20.5 of this Agreement and Section 6.12.4 of the MSHCP.
2.67 "Management Program" means the MSHCP's management actions as described in
Section 8 of the MSHCP.
2.68 "MBTA" means the federal Migratory Bird Treaty Act (50 C.F.R. §§ 21 et seq.)
and all rules and regulations promulgated thereunder, as amended.
2.69 "MBTA Special Purpose Permit" means a permit issued by the USFWS under 50
Code of Federal Regulations, section 21.27, authorizing Take, in connection with Covered
Activities, under the MBTA of the Covered Species listed in 50 Code of Federal Regulations
section 10.13 that are also listed as endangered or threatened under FESA.
2.70 "Minor Amendments" means minor changes to the MSHCP and this Agreement
as defined in Section 20.4 of this Agreement and Section 6.12.3 of the MSHCP.
2.71 "Mitigation Lands" means a subset of Additional Conservation Lands as
described in Sections 4.1 and 4.2.2.2 of the MSHCP.
2.72 "Monitoring Program" means the monitoring programs and activities set forth in
Section 8 of the MSHCP.
2.73 "Monitoring Program Administrator" means the individual or entity responsible
for administering the monitoring program, as described in Section 6.1.6 of the MSHCP.
2.74 "Monitoring Report(s)" means the report(s) prepared pursuant to the requirements
of Section 8.7 of the MSHCP.
2.75 "MSHCP" means the Coachella Valley Multiple Species Habitat Conservation
Plan/Natural Community Conservation Plan, a comprehensive multiple species habitat
conservation plamiing program that addresses multiple species' needs, including habitat, and the
preservation of natural communities in the Coachella Valley area of Riverside County,
California, as depicted in Figure 4-1 of the MSHCP and Exhibit "A" of this Agreement.
2.76 "MSHCP Reserve System" means a reserve that will total approximately 725,000
acres. The MSHCP Reserve System will provide for the Conservation of the Covered Species.
2.77 "NCCP Act" means the California Natural Community Conservation Planning
Act (California Fish and Game Code §§ 2800 et seq.), including all regulations promulgated
thereunder, as amended.
2.78 "NCCP Permit" means the Permit issued under the NCCP Act for the MSHCP to
permit the Take of identified species listed under CESA as threatened or endangered, a species
that is a candidate for listing, and Non -listed species.
2.79 "NEPA" means the National Environmental Policy Act (42 U.S.C. §§ 4321 -
4335) and all rules and regulations promulgated thereunder, as amended. For the purposes of the
MSHCP, the USFWS is the lead agency under NEPA as defined in 40 Code of Federal
Regulations section 1508.16.
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2.80 "No Surprises Assurances" means that provided Permittees are properly
implementing the terms and conditions of the MSHCP, the Agreement and the Permit(s), the
USFWS can only require additional mitigation for Covered Species beyond that provided for in
the MSHCP as a result of Unforeseen Circumstances in accordance with the "No Surprises"
regulations at 50 Code of Federal Regulations sections 17.22(b)(5) and 17.32(b)(5) and as
discussed in Section 6.8 of the MSHCP and Section 14.11 of this Agreement.
2.81 "Organizational Structure" means the local administrative structure for
implementation and management of the MSHCP, as set forth in Section 6.1 of the MSHCP.
2.82 "Operation and Maintenance Activities" or "O&M" means those Covered
Activities that include the ongoing operation and maintenance of public facilities, as described in
Section 7.3.1.1 of the MSHCP.
2.83 "Other Conserved Habitat" means part of a Conservation Area that does not
contain Core Habitat for a given species, but which still has Conservation value. These values
may include Essential Ecological Processes, Biological Corridors, Linkages, buffering from edge
effects, enhanced species persistence probability in proximate Core Habitat, genetic diversity,
recolonization potential, and flexibility in the event of long-term Habitat change.
2.84 "Participating Special Entity" means any regional public service provider, such as
a utility company or a public district or agency, that operates and/or owns land within the Plan
Area and that applies for and receives Take Authorization pursuant to Section 7.4 of the MSHCP
and Section I t.7 of this Agreement.
2.85 "Party" and "Parties" mean the signatories to this Agreement, namely CVCC,
CVAG, County, County Flood Control, County Parks, County Waste, the Cities, CVWD, IID,
Caltrans, State Parks, CVMC, CDFG, USFWS and any other City within the Plan Area that
incorporates after the Effective Date and complies with Section 11.5 of this Agreement.
2.86 "Permit(s)" means, collectively, the Section 10(a)(1) Permit and NCCP Permit
issued by the Wildlife Agencies to Permittees for Take of Covered Species pursuant to FESA
and the NCCP Act: and in conformance with the MSHCP and this Agreement.
2.87 "Permittees" means CVAG, CVCC, County, County Flood Control, County
Parks, County Waste, the Cities, CVWD, IID, Caltrans, State Parks and CVMC.
2.88 "Plan" means the Coachella Valley Multiple Species Habitat Conservation
Plan/Natural Community Conservation Plan, a comprehensive multiple species habitat
conservation planning program that addresses multiple species' needs, including Habitat and the
preservation of natural communities in the Coachella Valley area of Riverside County,
California, as depicted in Figure 4-1 of the MSHCP and Exhibit "A" of this Agreement.
2.89 "Plan Area" means the boundaries of the MSHCP, consisting of approximately
1.1 million acres in the Coachella Valley area of Riverside County, California, as depicted in
Figure 2-2 of the MSHCP and Exhibit "B" to this Agreement.
2.90 'Plan Participants" means CVAG, CVCC, County, County Flood Control, County
Parks, County Waste, the Cities, CVWD, IID, CVMC,'Caltrans, State Parks and others receiving
Take Authorization under the Permits.
2.91 'Planning Agreement" means the Memorandum of Understanding prepared
consistent with the NCCP Act to guide development of the MSHCP that is contained in
Appendix II of the MSHCP.
2.92 'Private Conservation Land" means land owned by a non -governmental entity
committed to Conservation in perpetuity through deed restriction, conservation easement, or
other binding agreement satisfactory to CDFG and USFWS.
2.93 "Reserve Lands" means Existing Conservation Lands, Additional Conservation
Lands, and Complementary Conservation.
2.94 "Reserve Management Oversight Committee" or 'BMOC' means the committee
established by the CVCC to provide biological, technical, and operational expertise for
implementation of the MSHCP, including oversight of the MSHCP Reserve System, as described
in Section 6.1.3 of the MSHCP.
2.95 "Reserve Management Unit' or "RMU" means the geographic areas within the
MSHCP Reserve System identified in Section 6.1.4 of the MSHCP.
2.96 'Reserve Management Unit Committee" or "RMUC" means a committee that will
be established for each Reserve Management Unit as set forth in Section 6.1.4 of the MSHCP.
2.97 "Reserve Management Unit Plan" or "RMUP" means the plan setting forth
management practices for identified portions of the MSHCP Reserve System Area, prepared and
adopted as described in Section 6.2 of the MSHCP.
2.98 'Reserve System Assembly" means the process of conserving lands within the
Conservation Area through acquisition or other means to assemble the MSHCP Reserve System.
2.99 'Rough Step" means the Reserve System Assembly accounting process to
monitor Conservation and loss of specified Habitats within the Plan Area
2.100 'Rough Step Analysis Unit' means a geographic unit within which Rough Step is
tracked. The Conservation Areas are the Rough Step Analysis Units.
2.101 "Scientific Advisory Committee" means the committee of scientists that provided
scientific input into the development of the Plan, as described in Section 3.1.1.
2.102 "Section 10(a) Permit' means the permit issued by the USFWS to Permittees
pursuant to 16 U.S.C. section 1539(a), authorizing Take of Covered Species.
2.103 "Species Conservation Goal(s)" means the Goals for the Conservation of each
Covered Species described in Section 9 of the MSHCP.
2.104 "State Assurances" means, except as provided in Section 15.5 of this Agreement,
provided Permittees are implementing the terms and conditions of the MSHCP, the Agreement,
and the Permits, if there are Unforeseen Circumstances, CDFG shall not require additional land,
water or financial compensation or additional restrictions on the use of land, water or other
natural resources for the life of the NCCP Permit without the consent of the Permittees, unless
CDFG determines that continued implementation of this Agreement, the MSHCP, and/or the
Permits would jeopardize the continued existence of a Covered Species, or as required by law
and would therefore lead to NCCP Permit revocation or suspension.
2.105 "State Parks" means the California Department of Parks and Recreation, a
department of the California Resources Agency.
2.106 "State Permittee(s)" means Caltrans, State Parks, and CVMC.
2.107 "Take" means the definition of such term in FESA and the California Fish and
Game Code. Section 9 of FESA does not prohibit Take of Federally Listed plants.
2.108 "Take Authorization" means the ability to incidentally Take species pursuant to the
Section 10(a)(1) Permit and/or the NCCP Permit.
2.109 "Third Party Granted Take Authorization" means any Third Party that receives
Third Party Take Authorization in compliance with Section 17 of this Agreement.
2.110 "Third Party Take Authorization" means Take Authorization received by a
landowner, developer, or other public or private entity from the Permittees pursuant to Section
17 of this Agreement, thereby receiving Take Authorization for Covered Species pursuant to the
Permits.
2.111 "Threatened Species" means those species listed as threatened under FESA and/or
CESA.
2.112 "Unforeseen Circumstances" means changes in circumstances affecting a Covered
3. RECITALS
This Agreement is entered into with regard to the following facts:
WHEREAS, CVAG is a joint powers authority, created pursuant to the provisions of
Government Code section 6500; and
WHEREAS, CVCC is a joint powers authority, created pursuant to the provisions of
Government Code section 6500; and
WHEREAS, CVWD is a governmental agency, created pursuant to the provisions of
California Water Code section 30000; and
WHEREAS, IID is a governmental agency, created pursuant to the provisions of
California Water Code section 20500; and
WHEREAS, the County is a governmental agency, created pursuant to the provisions of
the California Government Code, Title 3, Div. 1, Chapter 3, Article 1, section 23300; and
WHEREAS, County Flood Control is a governmental agency, created pursuant to the
provisions of the California Water Appendix, Chapter 48-1; and
WHEREAS, County Parks is a governmental agency, created pursuant to the provisions
of Public Resources Code section 5506.7; and
WHEREAS, County Waste is a governmental agency, created pursuant to the provisions
of the Health and Safety Code sections 4700 et seq.; and
WHEREAS, the Cities are California municipal corporations located within the
Coachella Valley of Riverside County, California; and
WHEREAS, Caltrans is a department of the California Business, Transportation and
Housing Agency, created pursuant to the provisions of the California Government Code sections
14000 et seq.; and
WHEREAS, State Parks is a department of the California Resources Agency, created
pursuant to the provisions of the California Government Code sections 14000 et seq.; and
WHEREAS, CVMC is a state agency within the California Resources Agency, created
pursuant to the provisions of Public Resources Code sections 33500 et seq.; and
WHEREAS, CDFG is a department of the California Resources Agency with
jurisdiction over the conservation, protection, restoration, enhancement and management of fish,
wildlife, native plants and habitat necessary for biologically sustainable populations of those
species under the California Endangered Species Act (California Fish and Game Code sections
2050 et seq.), the California Native Plant Protection Act (California Fish and Game Code
sections 1900 et seq.), the California Natural Community Conservation Planning Act (California
Fish and Game Code sections 2800 et seq.) and other relevant state laws; and
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WHEREAS, USFWS is an agency of the United States Department of the Interior and
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 extent set forth in FESA and other relevant federal laws; and
WHEREAS, the MSHCP is a multi jurisdictional habitat conservation plan focusing on
the conservation of both sensitive species and associated habitats to address biological and
ecological diversity conservation needs in the Coachella Valley and surrounding mountains
located in Central Riverside County, setting aside significant areas of undisturbed land for the
conservation of sensitive habitat while preserving open space and recreational opportunities; and
WHEREAS, the MSHCP's external boundaries encompass approximately 1.2 million
acres, which extend to include the Coachella Valley watershed; and
WHEREAS, certain plant and animal species and habitat have been identified that exist,
or may exist, within the Coachella Valley and surrounding mountains, and which have been: 1)
state or federally listed as threatened or endangered; 2) proposed for listing as threatened or
endangered; or 3) identified as a CDFG Species of Special Concern, a California Fully Protected
Species, a California Specially Protected Species, a sensitive plant species as determined by the
California Native Plant Society or other unlisted wildlife considered sensitive within the Plan
Area; and
WHEREAS, future growth and land development within the Plan Area, including both
public and private projects, may result in the "taking" of such species as defined in state and
federal law, thus requiring Take Authorization prior to the carrying out of otherwise lawful
activities; and
WHEREAS, the MSHCP will give the County, the Cities and other Permittees the ability
to control local land use decisions and maintain economic development flexibility while
providing a coordinated reserve system and implementation program that will facilitate the
preservation of biological diversity, as well as enhancing the region's quality of life. Such
planning is an effective tool in protecting the region's biodiversity while reducing conflicts
between protection of wildlife and plants and the reasonable use of natural resources for
economic development; and
WHEREAS, the MSHCP addresses the potential impacts of urban growth, natural
habitat loss and species endangerment, and creates a plan to mitigate for the potential loss of
Covered Species and their habitats due to the direct and indirect impacts of future development
of both private and public lands within the Plan Area; and
WHEREAS, the MSHCP, this Agreement and the Permits establish the conditions under
which the Permittees will receive from the USFWS and CDFG certain long-term Take
Authorizations and other assurances that will allow the taking of Covered Species incidental to
lawful uses authorized by the Permittees; and
WHEREAS, Permittees will, for the benefit of public and private property owners and
other project proponents within the MSHCP boundaries, transfer Take Authorization received
from the Wildlife Agencies through the land use entitlement process, issuance of Certificate of
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Inclusion or other appropriate mechanism as set forth in the MSHCP and this Agreement; and
WHEREAS, Permittees, with technical assistance from the USFWS and CDFG, have
prepared the MSHCP as part of their application for Take Authorization for Covered Species, as
defined below, to the Wildlife Agencies under FESA and the NCCP Act, which describes the
biological impacts of the MSHCP on the Covered Species and their habitats, and defines the
comprehensive avoidance, minimization, conservation and mitigation measures required to avoid
and mitigate effects of Take of Covered Species from Permittees' Covered Activities; and
WHEREAS, the MSHCP has been developed through a cooperative effort involving
USFWS, CDFG, local governmental agencies, property owners, development interests,
environmental interest groups and other members of the public.
THEREFORE, the Parties do hereby understand and agree as follows:
4. PURPOSES
The purposes of this Agreement are:
4.1 To ensure implementation of each of the terms of the MSHCP and this Agreement
for the benefit of the Covered Species and Natural Communities, while allowing well managed
and planned future economic growth;
4.2 To describe remedies and recourse should any Party fail to perform its
obligations, responsibilities and tasks as set forth in the MSHCP, the Permits and this
Agreement; and
4.3 To provide assurances to Permittees and others participating in the MSHCP that:
A. With respect to Covered Species, compliance with the terms of the
MSHCP, the Permits and this Agreement constitutes compliance with the
provisions of FESA, CESA and the NCCP Act;
B. Implementation of this Agreement and the MSHCP will adequately
provide for the Conservation and protection of the Covered Species and
their Habitats in the Plan Area; and
C. Pursuant to the federal "No Surprises" provisions of 50 Code of Federal
Regulations, section 17.22(b)(5) and 17.32(b)(5) and State Assurances
pursuant to Fish and Game Code section 2820(1) and Sections 14.11 and
15.3 of this Agreement, respectively, as long as the terms of the MSHCP,
this Agreement and the Permits are properly implemented, the Wildlife
Agencies will not require additional mitigation from Permittees, with
respect to Covered Species, except as provided for in this Agreement or as
required by law.
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5. INCORPORATION OF THE MSHCP
The MSHCP and each of its provisions are intended to be, and by this reference are,
incorporated herein. In the event of any direct contradiction between the terms of this
Agreement and the MSHCP, the terms of this Agreement will control. In all other cases, the
terms of this Agreement and the terms of the MSHCP will be interpreted to be supplementary to
each other.
6. CONSERVATION STRATEGY
The MSHCP is intended to conserve adequate habitat in an unfragmented manner to
provide for the protection and security of long-term viable populations of the species that are
either currently listed as threatened or endangered, are proposed for listing, or are believed to
have a high probability of being proposed for listing in the future if not protected by the Plan.
The MSHCP is intended to preserve biological diversity as well as maintain the quality of life
within the Coachella Valley and surrounding mountains by conserving species and their
associated habitats and coordinating, streamlining and planning Development. By adopting this
regional approach, the MSHCP will result in much greater and more biologically effective
Habitat and species Conservation than a project -by -project approach could produce. The
MSHCP is intended to proactively address requirements of the state and federal ESAs to avoid
disruption of economic development activities in the Plan Area.
The MSHCP provides a broad Conservation Strategy, which will be implemented
generally through the following:
A. As set forth in Section 4.0 of the MSHCP, the MSHCP Reserve System
shall be approximately 725,000 acres and will consist of Existing
Conservation Lands, lands conserved through Complementary
Conservation and Additional Conservation Lands. The MSHCP Reserve
System is divided into 21 Conservation Areas that provide Core and other
Conserved Habitat for Covered Species, conserve the natural communities
included in the Plan and Essential Ecological Processes essential to sustain
the Core Habitat and secure Biological Corridors and Linkages between
major Habitat areas.
B. For each of the Conservation Areas, Conservation Objectives and required
measures shall be implemented as set forth in Section 4.3 of the MSHCP.
C. New land uses adjacent to or within the MSHCP Conservation Areas shall
implement the Land Use Adjacency Guidelines set forth in Section 4.5 of
the MSHCP, as applicable.
D. The Avoidance, Minimization and Mitigation Measures set forth in
Section 4.4 of the MSHCP shall be implemented.
E. Monitoring and management activities will be undertaken for each of the
MSHCP Covered Species. Monitoring and management activities are
described in Section 8 of the MSHCP.
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F
G.
Species -specific Conservation Goals and Objectives shall be implemented
for each of the Covered Species in the MSHCP and are set forth in Section
9 of the MSHCP.
Natural Communities Conservation Goals and Objectives have been
developed and shall be implemented for each of the Covered Natural
Communities in the MSHCP and are set forth in Section 10 of the
MSHCP.
7. MSHCP RESERVE SYSTEM ASSEMBLY
7.1 Overview. As set forth in Section 4 of the MSHCP, the MSHCP Reserve System
will consist of approximately 725,000 acres and will consist of Existing Conservation Lands,
lands conserved through Complementary Conservation and Additional Conservation Lands. The
MSHCP Reserve System is divided into 21 Conservation Areas that provide Core and other
Conserved Habitat for Covered Species, conserve the natural communities included in the Plan
and Essential Ecological Processes essential to sustain the Core Habitat and secure Biological
Corridors and Linkages between major habitat areas.
7.2 Contribution of Existing Conservation Lands. As described in Section 4.1 of
the MSHCP, the MSHCP Reserve System will include Existing Conservation Lands. As of
1996, these lands were comprised of approximately 482,000 acres. Because of acquisitions, the
acreage had increased to 534,200 by 2003. Of this acreage, 477,100 acres (as of 1996), or
515,800 acres (as of 2003) are federal and state Existing Conservation Lands. Approximately
900 acres (as of 1996), or 11,900 acres (as of 2003) are non-profit organization Existing
Conservation Lands. Approximately 4,000 acres (as of 1996) or 6,500 acres (as of 2003) are
Local Permittee Existing Conservation Lands.
7.3 Complementary Conservation. As described in Sections 4.1 and 4.2.1 of the
MSHCP, the MSHCP Reserve System will include approximately 83,880 acres (as of 1996), or
42,590 acres (as of 2003) through Complementary Conservation efforts. Such efforts include
BLM and United States Forest Service acquisition programs in the Santa Rosa and San Jacinto
Mountains National Monument, BLM Wilderness in -holding acquisitions, including Mecca Hills
and Orocopia Mountains Wilderness Areas, and Joshua Tree National Park.
7.4 Contribution of Additional Conservation Lands. As described in Sections 4.1
and 4.2.2 of the MSHCP, the MSHCP Reserve System will include Additional Conservation
Lands comprised of approximately 151,250 acres as of 1996, that will be acquired or otherwise
conserved. Of this acreage, approximately 100,600 acres (as of 1996) will be acquired or
otherwise conserved as the Local Permittees' share of Plan implementation. As a result of
acquisitions, this acreage was 98,100 acres as of 2003. Approximately 39,850 acres (as of
1996) or 31,250 acres (as of 2003) will be acquired or otherwise conserved as the state and
federal contribution to Plan implementation. Approximately 10,800 acres of public and quasi -
public lands are also projected to be conserved. In addition, as described in Section 4.2.2.2.4 of
the MSHCP, the Local Permittees will protect the fluvial sand transport Essential Ecological
Process in the Cabazon, Long Canyon, and West Deception Canyon Conservation Areas to
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ensure no net reduction in fluvial sand transport in these areas, which comprise approximately
7,800 acres.
7.5 Review of Development Proposals in Conservation Areas. As set forth in
Section 4.3 of the MSHCP, Development in Conservation Areas will be limited to uses that are
compatible with the Conservation Objectives for the specific Conservation Area. Discretionary
Projects in Conservation Areas, other than second units on parcels with an existing residence,
shall be required to assess the project's ability to meet the Conservation Objectives in the
Conservation Area. Additionally, the Permittees will participate in the Joint Project Review
Process set forth in Section 6.6.1.1 of the MSHCP.
7.6 Reserve Assembly Accounting. In order to ensure that the MSHCP Reserve
System is established, all Permittees will be required to maintain a record of total acres and
location of Development within their jurisdiction within the Plan boundaries and submit this
information to the CVCC on a monthly basis. However, Caltrans must submit such information
on a bi-annual basis. As set forth in Section 6.4 of the MSHCP, annual reports will be prepared
in order to account for Habitat losses and gains associated with public and private Development
projects. The annual reports will be used to demonstrate that Conservation is occurring in rough
proportionality with Development, reflect that the MSHCP Reserve System is being assembled
as contemplated in the MSHCP and ensure that Habitat Conservation Goals and Objectives and
required measures are being implemented.
8. MSHCP RESERVE SYSTEM MANAGEMENT REQUIREMENTS
8.1 Overview. The MSHCP Reserve System will be managed pursuant to Section 8
of the MSHCP. The Plan establishes RMUs to ensure coordinated management in order to
achieve the Conservation Goals and Objectives. Additionally, within three (3) years of Permit
issuance, the RM1JCs and the Land Manager will develop a Reserve System Management Plan.
The elements of this plan are described in Section 6.2 of the MSHCP and will include ongoing
management measures and Adaptive Management actions.
8.2 Management Activities. Management activities pursuant to the MSHCP are set
forth in Section 8 of the MSHCP. As set forth in Sections 6.1.3 and 8.2.2 of the MSHCP, such
activities will be overseen by the RMOC and implemented by the RMUCs, in coordination with
the Land Manager and Monitoring Program Administrator.
8.3 Management Program. Section 8 of the MSHCP sets forth the Management
Program, allowing; flexibility to ensure protection of species for which current scientific data is
currently lacking. Consistent with an Adaptive Management approach, the Parties agree that the
methods and means of implementing the Management Program shall be changed as necessary to
respond to species' needs and new scientific data as these items may change over time.
9. MSHCP RESERVE SYSTEM MONITORING REQUIREMENTS
9.1 Monitoring Program. Monitoring of the MSHCP Reserve System will be
instituted pursuant to Section 8.3 of the MSHCP. Implementation of the long-term Monitoring
Program includes an initial inventory and assessment period.
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9 2 Monitoring Program Administrator. A Monitoring Program Administrator
shall be selected by the CVCC and shall be
Program with oversight from the RMOC. The
set forth in Section 6.1.6 of the MSHCP.
responsible for implementing the Monitoring
Monitoring Program Administrator's duties are
9.3 Monitoring Reporting Requirements. Pursuant to Section 8.7 of the MSHCP,
the Monitoring Program Administrator shall prepare annual monitoring reports that provide an
analysis of the monitoring results and any implications for the Management Program and
Reserve System Assembly. These reports will be submitted to the RMOC, the RMUCs and the
Land Manager and will include, at a minimum, the items listed in Section 8.7 of the MSHCP.
10. REPORTING REQUIREMENTS
10.1 Annual Reporting. As described in Section 6.4 of the MSHCP, the CVCC will
prepare an annual report that will be submitted to the Wildlife Agencies and Permittees. The
annual report for the preceding calendar year shall be submitted by March 30. The annual report
shall be presented at a CVCC public workshop and copies made available to the public. The
annual report shall include, at a minimum, the following information:
A. An overview of the status of the Conservation Areas.
B. Results of monitoring as described in Section 8.7 of the MSHCP.
C. Identification of Adaptive Management actions indicated and whether or
not such actions were implemented.
D. A description of Reserve Management activities for the previous year.
E. An accounting of the number of acres acquired, conserved through
cooperative management agreements or otherwise protected during the
previous year to quantify the progress achieved towards identified
Conservation Objectives.
F. An accounting of the number of acres of Core Habitat, Essential
Ecological Processes, Biological Corridors and Linkages and natural
communities conserved within each Conservation Area developed or
impacted by Covered Activities during the previous year.
G. An accounting of the number of acres of habitat for the species and natural
communities outside the MSHCP Conservation Areas in the Plan Area
developed during the previous year.
H. An evaluation of any significant issues encountered in Plan
implementation during the previous year and proposed resolution.
I. Expenditures for acquisition and MSHCP Reserve System management
over the previous year and applicable budgets for the upcoming fiscal
year.
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J. Summary of compliance activities required of Permittees.
K. A copy of the audit of CVCC finances for the most recent fiscal year.
10.2 Certification of Reports. All reports shall include the following certification
from the responsible entity official that supervised or directed preparation of the report:
I certify that, to the best of my knowledge, after appropriate
inquiries of those involved in the preparation of the report, the
information submitted is appropriate and complete.
11. MSHCP IMPLEMENTATION STRUCTURE
11.1 Permittee Implementation Mechanisms. As set forth below, the Permittees
have selected legal mechanisms to ensure implementation of the terms of the MSHCP and this
Agreement ("Implementation Mechanism"). The Permits shall be effective upon issuance. If,
however, within six (6) months of execution of this Agreement, the County and Cities have not
adopted an appropriate Implementation Mechanism, the Wildlife Agencies may initiate
suspension or revocation proceedings pursuant to Section 23.5 of this Agreement. The
Permittees' obligations to fully implement the terms and conditions of the MSHCP and this
Agreement commence upon execution of this Agreement. After adoption of an Implementation
Mechanism, the Local Permittees shall submit a copy of the appropriate documents to the CVCC
and the Wildlife Agencies substantially in the form addressed below, or take such other actions
that will ensure effective MSHCP implementation.
11.1.1 The Cities
A. The Cities shall adopt an ordinance imposing the Local
Development Mitigation Fee as analyzed in the Nexus Fee Report.
A model ordinance imposing such fees is attached to this
Agreement as Exhibit "D." The Cities shall adopt ordinances in
substantially the same form or at a minimum, containing the same
requirements as the model ordinance.
B. The Cities shall adopt a resolution that adopts the MSHCP and
establishes procedures and requirements for the implementation of
its terms and conditions. A model resolution is attached to this
Agreement as Exhibit "E." The Cities shall adopt a resolution in
substantially the same form or at a minimum, containing the same
requirements as the model resolution. The resolution shall contain
at least the following conditions:
1. Commitment to ensure compliance with the Conservation
Area requirements and measures set forth in Section 4 of
the MSHCP, including but not limited to the Property
Owner Initiated Habitat Evaluation and Acquisition
Negotiation Strategy (HANS), if HANS is applicable.
NIM
2. Imposition of all other terms of the MSHCP, this
Agreement and the Permits including but not limited to
participation in the Joint Project Review Process set forth
in Section 6.6.1.1 of the MSHCP, and compliance with the
applicable Land Use Adjacency Guidelines set forth in
Section 4.5 of the MSHCP.
3. Agreement to enforce all terms and conditions of the
MSHCP, this Agreement and the Permits.
11.1.2 The County.
A. The County shall establish a development mitigation fee for the
unincorporated area of the County to specifically provide for
habitat acquisition pursuant to the MSHCP.
B. The County shall implement the MSHCP through incorporation of
the relevant terms and requirements into its General Plan,
including but not limited to the following:
1. Commitment to ensure compliance with the Conservation
Area requirements and measures set forth in Section 4.0 of
the MSHCP, including but not limited to the Property
Owner Initiated Habitat Evaluation and Acquisition
Negotiation Strategy, if applicable.
2. Imposition of all other terms of the MSHCP, this
Agreement and the Permits including but not limited to
participation in the Joint Project Review Process set forth
in Section 6.6.1.1 of the MSHCP, and compliance with the
applicable Land Use Adjacency Guidelines set forth in
Section 4.5 of the MSHCP.
Agreement to enforce all other terms and conditions of the
MSHCP, this Agreement and the Permits.
11.1.3 County Flood Control. County Flood Control shall implement the
MSHCP and this Agreement through execution of this Agreement.
11.1.4 County Parks. County Parks shall implement the MSHCP and this
Agreement through execution of this Agreement.
11.1.5 County Waste. County Waste shall implement the MSHCP and this
Agreement through execution of this Agreement.
11.1.6 CVCC. CVCC shall implement the MSHCP and this Agreement
through approval of a resolution that adopts the MSHCP and
establishes procedures and requirements for the implementation of its
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terms and conditions for any Covered Activities. The CVCC shall
adopt a resolution in substantially the same form as the Model
Resolution attached as Exhibit "E."
11.1.7 CVAG. CVAG shall implement the MSHCP and this Agreement
through execution of this Agreement.
11.1.8 CVMC. CVMC shall implement the MSHCP and this Agreement
through execution of this Agreement.
11.1.9 Caltraus. Caltrans shall implement the MSHCP and this Agreement
through execution of this Agreement.
11.1.10 State Parks. State Parks shall implement the MSHCP and this
Agreement through execution of this Agreement.
11.1.11 CVWD. CVWD shall implement the MSHCP and this Agreement
through execution of this Agreement.
11.1.12 IID. IID shall implement the MSHCP and this Agreement through
execution of this Agreement.
11.2 Organizational Structure
11.2.1 Overview. Successful implementation of the MSHCP requires both a
local administrative structure and effective coordination with state and
federal partners. The Parties have therefore established an
Organizational Structure for implementation and management of the
MSHCP described in Section 6.1 of the MSHCP.
11.2.2 CVCC Organization
A. Overview. As set forth in Section 6.1 of the MSHCP,
implementation of the MSHCP will be overseen and administered
by the CVCC, a joint regional authority formed by the County, the
Cities, CVWD and IID. The CVCC shall sign this Agreement and
shall be a Permittee under the Permits. However, the CVCC shall
not limit County or City local land use authority or prevent a
Permittee from approving a Discretionary Project. As set forth in
Section 6.1.1 of the Plan, the CVCC shall be formed prior to
issuance of the Permits, as a separate and independent joint powers
authority.
B. Duties and Responsibilities. The CVCC shall provide the primary
policy direction for the implementation of the MSHCP and will
provide opportunities for public participation in the
decision -making process. The CVCC shall have, at a minimum,
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the powers and duties as set forth in Section 6.1.1.2 of the
MSHCP.
11.2.3 Acquisition and Funding Coordinating Committee. To assist in
implementing its duties under the MSHCP, the CVCC shall form the
Acquisition and Funding Coordinating Committee to provide input on
local funding priorities and Additional Conservation Lands acquisition
priorities. As set forth in Section 6.1.2 of the MSHCP, the Acquisition
and Funding Coordinating Committee shall be formed within one
hundred twenty (120) days of the issuance of the Permits. Permittee
representatives on the Acquisition and Funding Coordinating
Committee shall be appointed by the CVCC and shall include any
Permittee requesting membership. The Wildlife Agencies shall be ex
officio members of the Acquisition and Funding Coordinating
Committee. The Acquisition and Funding Coordinating Committee
shall advise the CVCC on local funding priorities and Additional
Conservation Lands acquisitions as set forth in Section 6.1.2 of the
MSHCP. However, the CVCC will have final decision making
authority in establishing and implementing these local priorities.
11.2.4 Joint Project Review Process. To ensure that the requirements of the
Permits, the MSHCP and this Agreement are properly met, a Joint
Project Review Process for projects within the Conservation Areas
shall be instituted by the CVCC. The process for the Joint Project
Review Process is set forth in Section 6.6.1.1 of the MSHCP.
11.2.5 CVCC Executive Director.
A. Selection. An appropriate individual shall be selected as the CVCC
Executive Director by the CVCC to administer the Plan. The
Executive Director shall implement the duties and responsibilities
of the CVCC. During the first five (5) years, the CVCC shall
initially contract with CVAG for the Executive Director within
thirty (30) days of the formation of the CVCC.
B. Duties and Responsibilities. The Executive Director shall have
the powers and duties as set forth in Section 6.1.1.3 of the
MSHCP.
11.2.6 Reserve Management Oversight Committee.
A. Formation and Representation. As described in Section 6.1.3 of
the MSHCP, the BMOC is the primary interagency group that will
coordinate implementation of the Plan. The CVCC Executive
Director shall appoint the chair of the BMOC from those entities
identified below. The RMOC shall be assembled within one
hundred twenty (120) days of Permit issuance and shall report to
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the CVCC. The RMOC shall be composed of one representative
from USFWS, CDFG, BLM, State Parks, CVCC, the County and
up to five other representatives, as appointed by the CVCC, of
private and public agencies or entities that hold land dedicated to
Conservation within the MSHCP Reserve System. National Park
Service (designated by NPS) and U.S. Forest Service (designated
by USFS) will be ex ofcio members.
B. Duties and Responsibilities. The RMOC shall have the duties and
responsibilities as set forth in Section 6.1.3 of the MSHCP.
11.2.7 Reserve Management Unit Committees. To coordinate management
of lands owned by different entities in the MSHCP Reserve System,
RMUCs will be established for each of the six Reserve Management
Units ("RMU" ). The RMUs are described in Section 6.1.4 of the
MSHCP. The RMUCs shall be established within one hundred twenty
(120) days of Permit issuance. RMUC composition and duties and
responsibilities are set forth in Section 6.1.4 of the MSHCP.
11.2.8 Land Manager. As described in Section 6.1.5 of the MSHCP, the
CVCC may retain or contract with a person or entity to manage Local
Permittee RMU lands and coordinate through the RMUCs with the
entities managing Conservation land in the RMUs. The required
qualifications, duties and responsibilities of the Land Manager are set
forth in Section 6.1.5 of the MSHCP.
11.2.9 Monitoring Program Administrator. A Monitoring Program
Administrator selected by the CVCC shall be responsible for
implementing the Monitoring Program contained in Section 8 of the
MSHCP. The duties of the Monitoring Program Administrator are set
forth in Section 6.1.6 of the MSHCP.
11.2.10 MSHCP Reserve Management Unit Plan. As described in Section
6.2 of the MSHCP, the CVCC shall work with each RMUC to develop
a Reserve Management Unit Plan ("RMUP"). The RMUPs will define
specific management actions, schedules and responsibilities for Plan
implementation. The RMUPs shall be prepared within three (3) years
of Permit issuance and revised as necessary as lands are added to the
MSHCP Reserve System. The RMUPs shall contain, at a minimum,
the elements set forth in Section 6.2 of the MSHCP.
11.3 Changed Circumstances.
11.3.1 General Terms. Consistent with USFWS regulations regarding
Habitat Conservation Plan assurances, Section 6.8.3 of the MSHCP
identifies changes in the circumstances affecting the MSHCP Reserve
System and/or Covered Species which can be reasonably anticipated
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and planned for in the MSHCP and describes the responses to such
changes that will be carried out by the Parties. Since the MSHCP
includes an Adaptive Management approach to reserve management,
changes over time and adaptive responses are already contemplated
and do not therefore require amendments to the MSHCP or the
Permits. The Parties agree that this Section and Section 6.8.3 of the
MSHCP address all reasonably foreseeable Changed Circumstances
and describe specific responses for them; other changes not identified
as Changed Circumstances will be treated as Unforeseen
Circumstances.
11.3.2 Permittee-Initiated Response to Changed Circumstances.
Permittee(s) will give notice to the Wildlife Agencies within sixty (60)
calendar days after learning that any of the Changed Circumstances
listed in Section 6.8.3 of the MSHCP have occurred. As soon as
practicable thereafter, but no later than sixty (60) days after learning of
the Changed Circumstances, Permittee(s) will modify its/their
activities in the manner described in Section 6.8.3 of the MSHCP, to
the extent necessary to address the effects of the Changed
Circumstances on the Covered Species, and will report to the Wildlife
Agencies on its/their actions. Permittee(s) will undertake such
modifications without awaiting notice from the Wildlife Agencies.
11.3.3 Wildlife Agency -Initiated Response to Changed Circumstances. If
the Wildlife Agencies determine that Changed Circumstances have
occurred, they shall notify Permittee(s) in writing within sixty (60)
calendar days. Within sixty (60) days after receiving such notice,
Permittee(s) will begin implementation of the required changes and
report to the Wildlife Agencies on its/their actions. If the USFWS
and/or CDFG determine that Changed Circumstances have occurred
and that a Permittee has not responded in accordance with Section
6.8.3 of the MSHCP, the Wildlife Agency or Agencies will so notify
the affected Permittee and the CVCC and will direct Permittee to make
the required changes.
11.3.4 Condemnation of Lands Providing Conservation Benefits. In the
event that an authority with eminent domain powers condemns part of
the lands to which the MSHCP's Conservation and mitigation
measures apply, the applicable Permittee shall seek full reimbursement
for fragmentation, and increased management and monitoring costs.
The applicable Permittee shall use all funds provided to the Permittee
through the condemnation proceedings to provide additional
Conservation and mitigation measures that will replace the
Conservation benefits that would have been provided by the
condemned lands.
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11.3.5 New Listings of Species Not Covered by the MSHCP. The USFWS
or CDFG may list additional species under FESA and/or CESA as
threatened or endangered, delist species that are currently listed, or
declare listed species as extinct. In the event of a new listing of one or
more species not covered by the MSHCP, the following steps will be
taken.
If a species not covered by the MSHCP is listed as threatened or
endangered under FESA and/or CESA during the Permit application
process or during the life of the Permits, the USFWS and/or CDFG
and the Permittee(s) will identify actions that may cause Take,
jeopardy or adverse modification of Critical Habitat, and the
Permittee(s) will avoid such actions in the implementation of their
Covered Activities until approval of an amendment to the MSHCP to
address the newly listed species in accordance with the Modifications
and Amendments Procedures described in Section 6.12 of the
MSHCP. Such avoidance measures will include the following: 1)
evaluation of applications for proposed Covered Activities with
respect to potential effects on the newly listed species; such
evaluations will include assessment of the presence of suitable habitat
for the newly listed species within the areas potentially affected by the
proposed Covered Activity and surveys for the newly listed species, as
appropriate, using accepted protocols; and 2) implementation of
measures to avoid impacts to the newly listed species based on the
results of the data collected in item 1) above and the evaluation of
those data in the context of the design of the proposed Covered
Activity. Alternatively, a Plan amendment may not be pursued and
Take Authorization may be sought separately.
11.4 Annexation and Deannexation of Lands. Each of the Permittees shall enforce
the terms of the Plan, the Permits and this Agreement as to all individuals or entities subject to its
jurisdiction, including lands in the Plan Area annexed into the Permittees' jurisdictions after the
Effective Date o1' this Agreement, provided the Minor Amendment requirements of Section
6.12.3 of the MSHCP and Section 20.4 of this Agreement have been met. If the Minor
Amendment requirements cannot be met, a Major Amendment will be required.
In the event of the annexation or deannexation of any land within the Plan Area to
another jurisdiction that is not a Permittee, the Parties shall seek to enter into an agreement
between the Permittees, the Local Agency Formation Commission ("LAFCO"), the annexing or
deannexing jurisdiction and the Wildlife Agencies as part of the annexation process to ensure
that any Development of the annexed lands proceeds in accordance with the Conservation Goals
and Objectives of the MSHCP. If an agreement can be reached, that jurisdiction shall become a
Permittee after executing an addendum to this Agreement. If an agreement cannot be reached, or
if the MSHCP requirements are not imposed as a condition of annexation by LAFCO, then the
annexed or deannexed land will not receive Take Authorization pursuant to the Permits.
Additionally, such annexation or deannexation may result in the revocation or suspension of the
Permits pursuant to Section 23.5 of this Agreement. Parties within such annexed or deannexed
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land that qualify as Participating Special Entities may receive Take Authorization as set forth in
Section 11.7 of this Agreement.
11.5 Incorporation of New Cities within MSHCP Boundaries. The Parties
anticipate that during the term of the MSHCP, and after the Effective Date, one or more new
cities may be incorporated within the Plan Area. Such newly incorporated cities, upon adoption
of an appropriate Implementation Mechanism and execution of an Implementing Agreement
with the Wildlife Agencies substantially similar in form to this Agreement, shall receive Take
Authorization pursuant to the Permits and all other rights and obligations granted by the Permits,
the MSHCP and this Agreement. Incorporation of a new city within the Plan Area shall
constitute a Minor Amendment and shall be processed as such pursuant to Section 20.4 of this
Agreement and Section 6.12.3 of the MSHCP. In the event a newly incorporated city fails to
participate in the MSHCP, the Permits may be revoked or suspended as set forth in Section 23.5
of this Agreement.
11.6 Growth -Inducing Effects. Once mitigation has been imposed upon the
Permittees, Participating Special Entity, or Third Party Granted Take Authorization for a
proposed project in conformance with the requirements of the MSHCP and the Permits,
Permittees shall not be required to provide or impose any additional mitigation for any growth -
inducing effects that such project may have on a Covered Species and/or its Habitat within the
Plan Area.
11.7 Participating Special Entity.
11.7.1 Take Authorization for Participating Special Entities. Any public
service provider, such as a utility company or a public district,
including, but not limited to, a school, water, or irrigation district, that
operates facilities and/or owns land within the Plan Area may request
Take Authorization for its activities pursuant to the Permits as a
Participating Special Entity. As set forth below, such activities must
comply with all of the terms and requirements of the Permits, the
MSHCP and this Agreement.
11.7.2 Grant of Take Authorization to Participating Special Entity. The
CVCC may grant Take Authorization to a Participating Special Entity
for its activities upon compliance with this Section. The Participating
Special Entity shall submit a complete application for the proposed
activity to the CVCC containing a detailed description of the proposed
activity, a map indicating the location of the proposed activity and an
analysis of its potential impacts to Covered Species and their Habitats
and to the MSHCP Reserve System.
Within thirty (30) days of receipt of the complete application, CVCC
and Wildlife Agency staff shall review the application. If CVCC staff,
with the concurrence of the Wildlife Agencies, finds that the proposed
activity complies with all terms and requirements of the MSHCP, the
Permits and this Agreement and does not compromise the viability of
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the Permits or the MSHCP Reserve System, the CVCC shall issue a
Certificate of Inclusion upon completion or fulfillment in full of all
appropriate requirements as set forth below and the proposed activity
shall be deemed a Covered Activity. In the event the proposed activity
crosses the MSHCP Reserve System, CVCC staff must make a finding
supported by adequate evidence that the activity will result in a
biologically equivalent or superior alternative to the MSHCP Reserve
System prior to execution of a Certificate of Inclusion. The Certificate
of Inclusion shall depict on an attached map the lands by parcel
number, acreage and owner to which the proposed Take
Authorization(s) would apply. In the event that the proposed activity
does not comply with the terms and requirements of the Permits, the
MSHCP and this Agreement, and/or compromises the viability of the
MSHCP Reserve System, CVCC and Wildlife Agency staff shall meet
with the proposed Participating Special Entity representatives to
attempt to reach a mutually agreeable solution.
11.7.3 Requirements for Participating Special Entities. In addition to
complying with applicable sections of the MSHCP, Participating
Special Entities shall also contribute to Plan implementation through
payment of a fee based upon the type of proposed activity, which shall
be applicable to all activities in the Plan Area. For regional utility
projects that will be constructed to serve Development, such as major
truck lines, Participating Special Entities shall pay a fee in the amount
of 5% of total capital costs or make other contributions to the Plan as
may be agreed to by the CVCC and the Wildlife Agencies. For such
activities that will result in only temporary impacts (impacts that
generally last for less than five years) and disturbance, Participating
Special Entities shall pay a fee in the amount of 3% of total capital
costs or other appropriate measures as may be agreed to by the CVCC
and the Wildlife Agencies. Additionally, the Participating Special
Entities will be charged appropriate administration fees to process the
application. Public district or agency projects that will be constructed
to serve Development, such as new schools and treatment plants,
inside the Conservation Areas shall be designed and implemented
pursuant to the requirements of Section 4.0 of the MSHCP and all
other requirements of the MSHCP, including payment of Local
Development Mitigation Fees as adopted for commercial and
industrial Development. For such activities outside of the
Conservation Areas, contribution will consist of payment of Local
Development Mitigation Fees as adopted for commercial and
industrial Development and any other applicable requirements. All
fees shall be collected by, or submitted to, the CVCC. All obligations
must be satisfied prior to impacts to Covered Species and their
Habitats.
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12. FUNDING OF THE MSHCP
The funding of the MSHCP, including financing of Reserve System Assembly, and
management and monitoring will occur pursuant to Section 5.0 of the MSHCP.
12.1 Local Obligations.
12.1.1 Local Permittee Additional Conservation Lands Obligations. As
described in Sections 4.2 and 5.1.1 of the MSHCP, Local Permittees
are responsible for the Conservation of 100,600 acres of Additional
Conservation Lands (as of 1996) and 98,100 acres (as of 2003).
Approximately 90,000 acres will be conserved through acquisition or
other means. The projected cost in 2005 dollars for this acreage is
approximately $288 million. The related transaction costs for
appraisals, escrow fees, etc. are estimated to be approximately $14.4
million.
12. L2 Administration Costs. The Local Permittees will be responsible for
certain Plan administration costs necessary to implement the terms and
conditions of the Plan, including staffing for the CVCC. As described
in Sections 5.1.2.3 and 5.1.3 of the MSHCP, the Local Permittee
obligation for Plan administration costs for the acquisition program is
approximately $411,000 in the first year, increasing by 3% annually to
offset inflation. Non -acquisition program administration costs are
estimated to be approximately $42,000 in the first year and
$77,544,000 over the life of the Plan.
12.1.3 Local Permittee Monitoring and Management Obligations. As
described in Sections 5 and 8 of the MSHCP, Local Permittees are
responsible under the Plan for monitoring, land management and
Adaptive Management costs on lands managed by the Local
Permittees. In addition, an endowment would be established to fund
monitoring, land management and Adaptive Management.
12.2 Local Funding Sources. The local funding program will fund the Local
Permittees' obligations under the MSHCP as set forth in Section 5.2 of the Plan. The primary
components are as follows:
12.2.1 Local Development Mitigation Fees. As further described in Section
5.2.1.1 of the MSHCP, the County and the Cities shall adopt fee
ordinances establishing a Local Development Mitigation Fee to
partially fund Plan implementation. The projected revenues from the
Local Development Mitigation Fees are anticipated to be
approximately $503 million over the first fifty (50) years of Plan
implementation. The County and the Cities shall transmit all collected
Local Development Mitigation Fees to the CVCC, at least quarterly, to
be expended to fulfill the terms of the MSHCP.
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12.2.2 Transportation and Other Regional Infrastructure Project
Contribution. Permittees' transportation and other regional
infrastructure projects will contribute to Plan implementation. For
transportation infrastructure, the local funding program will provide
approximately $30 million in contribution from Measure A funds.
Additionally, CVWD will acquire 550 acres in the Thousand Palms
Conservation Area to mitigate for the Whitewater Flood Control
project. CVWD and IID will also make contributions to the
management and monitoring endowment. These total contributions
are estimated at approximately $4,108,400. Other regional utility and
local public capital construction projects will mitigate their impacts, in
whole or in part, under the MSHCP through payment of a per -acre
mitigation fee or other appropriate method. As described in Section
6.6.2 of the Plan, Caltrans will acquire or fund the acquisition of 5,791
acres. Caltrans will also contribute $7.6 million to CVCC for
monitoring, management and Adaptive Management. Caltrans and
CVAG will also acquire 1,795 acres as mitigation for freeway
interchanges and associated arterials and contribute $1,077,000
towards monitoring, management and Adaptive Management
endowment fund.
12.2.3 Landfill Tipping Fees. Landfill tipping fees in the Plan Area are
estimated to generate approximately $575,000 in 2006 from County
landfills, with a projected rate increase of 4% annually thereafter.
12.2.4 Eagle Mountain Landfill Environmental Mitigation Trust Fund.
Eagle Mountain Landfill tipping fees are estimated to generate $234
million dollars over the next seventy-five (75) years. Should the
availability of this funding source become unreliable, Section 5.2.2.4
of the MSHCP provides potential alternative funding sources.
12.2.5 Additional Funding. As further described in Section 5.2.1.6 of the
MSHCP, the Parties shall seek additional funding from private, local,
state and federal sources including grants. Additionally, funds may be
received from Participating Special Entities. In addition, should
certain funding sources become unreliable, Section 5.2.2.4 of the
MSHCP provides potential alternative funding sources.
12.3 Annual Evaluation of Funding. On an annual basis, the Permittees and the
Wildlife Agencies will evaluate the performance of the funding mechanisms and develop any
necessary modifications to address possible shortfalls. Additionally, this annual evaluation will
include an assessment of the funding plan and anticipate funding needs over the next eighteen
(18) months for the purpose of identifying any potential deficiencies in cash flow. If deficiencies
are identified through this evaluation, the Permittees and the Wildlife Agencies will develop
strategies to address any additional funding needs consistent with the terms and conditions of
the Plan. Additional funding needs will be addressed as set forth in Section 5.2.2 of the MSHCP.
W-4.2
13. PERMITTEES' TAKE AUTHORIZATION AND OBLIGATIONS
13.1 Permittees' Take Authorization. Each Permittee may engage in, and receive
Take Authorization for, Covered Activities as set forth in Section 7 of the MSHCP. The County
and Cities may also confer Take Authorization and approve projects proposed within their
respective jurisdictions, as set forth in Sections 7.1 and 7.2 of the MSHCP. The County, Cities
and the CVCC may also confer Take Authorization through the issuance of a Certificate of
Inclusion or other written mechanism or instrument as set forth in Section 11.7 of this
Agreement.
13.2 County and Cities Obligations. The County and the Cities have the following
obligations under the MSHCP and this Agreement:
A. Adopt and maintain ordinances or resolutions as necessary, and amend
their general plans as appropriate, to implement the requirements and to
fulfill the purposes of the Permits, the MSHCP and this Agreement for
private and public projects. Such requirements and policies include: 1)
compliance with relevant processes to ensure application of the
Conservation Area requirements set forth in Section 4.0 of the MSHCP
and thus, satisfaction of the local acquisition obligation; 2) require
compliance with the applicable Land Use Adjacency Guidelines set forth
in Section 4.5 of the MSHCP; 3) maintain a record of total acres
developed and their location within its jurisdiction and transmit such
information monthly to the CVCC; 4) convey any changes in County or
city boundaries or general plan land use designations to CVCC at the end
of each calendar year; 5) ensure compliance with the Avoidance,
Minimization and Mitigation Measures in Section 4.4 of the MSHCP; 6)
ensure implementation consistent with the Species Conservation Goals
and Objectives in Section 9; and 7) permanently protect and manage
Mitigation Land within the reserve system legally owned and/or controlled
by the entity unless conveyed to the CVCC.
B. Transmit any collected Local Development Mitigation Fees, other
appropriate fees and associated interest as described in Section 5.2.1.1 of
the MSHCP to the CVCC at least quarterly.
C. Contribute appropriate mitigation as determined by the affected Permittee
for County and City public projects, including, but not limited to, any one
or any combination of the following: 1) acquisition of replacement habitat
at a 1:1 ratio that is biologically equivalent or superior to the property
being disturbed; or 2) payment of the Local Development Mitigation Fees
as established for commercial and industrial Development. Such
contributions shall occur prior to impacts to Covered Species and their
Habitats.
D. Participate as a member agency in the CVCC as set forth in Section 6.1.1
of the MSHCP.
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E. Participate as a member of the RMOC as set forth in Section 6.1.3 of the
MSHCP, as appropriate.
F. Participate in the Joint Project Review Process set forth in Section 6.6.1.1
of the MSHCP for projects in the Conservation Areas.
G. Take all necessary and appropriate actions, following applicable land use
permit enforcement procedures and practices, to enforce the terms of
project approvals for public and private projects, including compliance
with the MSHCP, the Permits and this Agreement.
H. Manage MSHCP Reserve System lands or conservation easements owned
or leased by the County or respective City pursuant to Sections 8 and 9 of
the MSHCP.
I. Carry out all other applicable requirements of the MSHCP, this
Agreement and the Permits. Notwithstanding the foregoing, nothing
within this Agreement shall be construed to require the County or the
Cities to provide funding, or any other form of compensation, beyond the
fees collected or dedicated lands required pursuant to the Permits, this
Agreement and the MSHCP or other mitigation agreed to by the
appropriate Parties.
13.3 CVCC Obligations. CVCC has the following obligations under the MSHCP and
this Agreement:
A. Implement the necessary requirements to fulfill the purposes of the
Permits, the MSHCP and this Agreement, for projects for which it issues
Take Authorization such as for Participating Special Entities. Such
requirements include: 1) ensuring compliance with relevant processes to
ensure application of the Conservation Area requirements set forth in
Section 4 of the MSHCP; 2) ensuring compliance with the applicable
Land Use Adjacency Guidelines as set forth in Section 4.5 of the MSHCP;
3) compliance with the Avoidance, Minimization and Mitigation Measures
in Section 4.4 of the MSHCP; 4) ensure implementation consistent with
the Species Conservation Goals and Objectives in Section 9; and 5)
permanently protect and manage Mitigation Land within the reserve
system legally owned and/or controlled by the entity unless conveyed to
the CVCC.
B. Administer and oversee implementation of the MSHCP as set forth in
Section 6.1 of the MSHCP.
C. Collect and expend Local Development Mitigation Fees and other
applicable funds as described in Section 5 of the MSHCP.
D. Transfer Take Authorization to Participating Special Entities pursuant to
Section 11.7 of this Agreement.
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E. Accept and manage MSHCP Reserve System property including
conservation easements that have been conveyed to it by the County,
Cities or other entity, agency or individual, pursuant to Section 6.1.1.2 of
the MSHCP.
F. Carry out all other applicable requirements of the MSHCP, this
Agreement, and the Permits. Notwithstanding the foregoing, nothing
within this Agreement shall be construed to require the CVCC to provide
funding, or any other form of compensation, beyond the fees collected or
dedicated lands required pursuant to the Permits, this Agreement and the
MSHCP.
13.4 CVAG Obligations. CVAG has the following obligations under the MSHCP and
this Agreement:
A. Implement the necessary requirements to fulfill the purposes of the
Permits, the MSHCP and this Agreement for its Covered Activities.
B. Contribute $30 million from Measure A or other funds as set forth in
Section 6.6.1 of the Plan.
C. Carry out all other applicable requirements of the MSHCP, this
Agreement and the Permits. Notwithstanding the foregoing, nothing
within this Agreement shall be construed to require CVAG to provide
funding, or any other form of compensation, beyond the fees collected or
dedicated lands required pursuant to the Permits, this Agreement and the
MSHCP or other funding mechanisms identified in the Plan.
13.5 County Flood Control Obligations. County Flood Control has the following
obligations under the MSHCP and this Agreement:
A. Implement the necessary requirements to fulfill the purposes of the
Permits, the MSHCP and this Agreement for its Covered Activities. Such
requirements include: 1) compliance with relevant processes and measures
to ensure application of the Conservation Area requirements set forth in
Section 4 of the MSHCP; 2) compliance with the applicable Land Use
Adjacency Guidelines as set forth in Section 4.5 of the MSHCP; 3)
compliance with the Avoidance, Minimization and Mitigation Measures in
Section 4.4 of the MSHCP; 4) ensure implementation consistent with the
Species Conservation Goals and Objectives in Section 9; and 5)
permanently protect and manage Mitigation Land within the reserve
system legally owned and/or controlled by the entity unless conveyed to
the CVCC.
B. Contribute mitigation through payment of 3% of total capital costs for its
Covered Activities. Such payment may be offset through acquisition of
replacement Habitat or creation of new Habitat for the benefit of Covered
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Species, as appropriate. Such mitigation shall be implemented prior to
impacts to Covered Species and their Habitats.
C. Manage land owned or leased within the MSHCP Reserve System that has
been set aside for Conservation purposes in accordance with Sections 8
and 9 of the MSHCP.
D. Participate in the Joint Project Review Process for its projects within the
Conservation Areas as described in Section 6.6.1.1 of the Plan.
E. Carry out all other applicable requirements of the MSHCP, this
Agreement and the Permits. Notwithstanding the foregoing, nothing in
this Agreement shall be construed to require County Flood Control to
provide funding, or any other form of compensation, beyond the fees
collected, mitigation payments of 3% of capital costs pursuant to Section
13.5 above, dedicated lands required pursuant to the Permits or other
MSHCP requirements, this Agreement and the MSHCP.
13.6 County Parks Obligations. County Parks has the following obligations under
the MSHCP and this Agreement:
A. Implement the necessary requirements to fulfill the purposes of the
Permits, the MSHCP and this Agreement for its Covered Activities. Such
requirements include: 1) compliance with relevant processes and measures
to ensure application of the Conservation Area requirements set forth in
Section 4.0 of the MSHCP; 2) compliance with the applicable Land Use
Adjacency Guidelines as set forth in Section 4.5 of the MSHCP; 3)
compliance with the Avoidance, Minimization and Mitigation Measures in
Section 4.4 of the MSHCP; 4) ensure implementation consistent with the
Species Conservation Goals and Objectives in Section 9; and 5)
permanently protect and manage Mitigation Land within the reserve
system legally owned and/or controlled by the entity unless conveyed to
the CVCC.
B. Contribute appropriate mitigation as determined by County Parks for its
projects, including, but not limited to, any one or any combination of the
following: 1) acquisition of replacement habitat at a 1:1 ratio that is
biologically equivalent or superior to the property being disturbed; or 2)
payment of the Local Development Mitigation Fees as established for
commercial and industrial Development. Such contribution shall occur
prior to impacts to Covered Species and their Habitats.
C. Manage and monitor land owned or leased within the MSHCP Reserve
System that has been set aside for Conservation purposes in accordance
with Sections 8 and 9 of the MSHCP.
D. Participate in the Joint Project Review Process for its projects, if any,
within the Conservation Areas as described in Section 6.6.1.1 of the Plan.
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E. Carry out all other applicable requirements of the MSHCP, this
Agreement and the Permits. Notwithstanding the foregoing, nothing in
this Agreement shall be construed to require County Parks to provide
funding, or any other form of compensation, beyond the fees collected or
dedicated lands required pursuant to the Permits or other MSHCP
requirements, this Agreement and the MSHCP.
13.7 County Waste Obligations. County Waste has the following obligations under
the MSHCP and this Agreement:
A. Implement the necessary requirements to fulfill the purposes of the
Permits, the MSHCP and this Agreement for its Covered Activities. Such
requirements include: 1) compliance with relevant processes and measures
to ensure application of the Conservation Area requirements set forth in
Section 4.0 of the MSHCP; 2) compliance with the applicable Land Use
Adjacency Guidelines as set forth in Section 4.5 of the MSHCP; 3)
compliance with the Avoidance, Minimization and Mitigation Measures in
Section 4.4 of the MSHCP; 4) ensure implementation consistent with the
Species Conservation Goals and Objectives in Section 9; and 5)
permanently protect and manage Mitigation Land within the reserve
system legally owned and/or controlled by the entity unless conveyed to
the CVCC.
B. Manage and monitor land owned within the MSHCP Reserve System that
has been set aside for Conservation purposes in accordance with Sections
8 and 9 of the MSHCP.
C. Participate in the Joint Project Review Process for its projects, if any,
within the Conservation Areas as described in Section 6.6.1.1 of the Plan.
D. Cary out all other applicable requirements of the MSHCP, this
Agreement, and the Permits. Notwithstanding the foregoing, nothing
within this Agreement shall be construed to require County Waste to
provide funding, or any other form of compensation, beyond the
requirements of the Permits, this Agreement and the MSHCP.
13.8 CVWD Obligations. CVWD has the following obligations under the MSHCP
and this Agreement:
A. Implement the necessary requirements to fulfill the purposes of the
Permits, the MSHCP and this Agreement, for its Covered Activities. Such
requirements include: 1) compliance with relevant processes and measures
to ensure application of the Conservation Area requirements set forth in
Section 4.0 of the MSHCP; 2) compliance with the applicable Land Use
Adjacency Guidelines as set forth in Section 4.5 of the MSHCP; 3)
compliance with the Avoidance, Minimization and Mitigation Measures in
Section 4.4 of the MSHCP; 4) ensure implementation consistent with the
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Species Conservation Goals and Objectives in Section 9; and 5)
permanently protect and manage Mitigation Land within the reserve
system legally owned and/or controlled by the entity unless conveyed to
the CVCC.
B. As set forth in Section 6.6.1 of the Plan, cooperate with CVCC towards
Conservation of a portion of the 7,000 acres CVWD owns in the
Conservation Area.
C. Contribute $3,583,400 towards the Endowment Fund for the Monitoring
Program, the Management Program and Adaptive Management.
D. Additional contributions as set forth in the Plan.
E. Participate as a member of the CVCC as set forth in Section 6.1.1 of the
MSHCP.
F. Participate in the Joint Project Review Process for its projects within the
Conservation Areas as described in Section 6.6.1.1 of the Plan.
G. Carry out all other applicable requirements of the MSHCP, this
Agreement, and the Permits. Notwithstanding the foregoing, nothing
within this Agreement shall be construed to require CVWD to provide
funding, or any other form of compensation, beyond the requirements of
the Permits, this Agreement and the MSHCP.
13.9 IID Obligations. IID has the following obligations under the MSHCP and this
Agreement:
A. Implement the necessary requirements to fulfill the purposes of the
Permits, the MSHCP and this Agreement for its Covered Activities. Such
requirements include: 1) compliance with relevant processes and measures
to ensure application of the Conservation Area requirements set forth in
Section 4 of the MSHCP; 2) compliance with the applicable Land Use
Adjacency Guidelines as set forth in Section 4.5 of the MSHCP; 3)
compliance with the Avoidance, Minimization and Mitigation Measures in
Section 4.4 of the MSHCP; 4) ensure implementation consistent with the
Species Conservation Goals and Objectives in Section 9; and 5)
permanently protect and manage Mitigation Land within the reserve
system legally owned and/or controlled by the entity unless conveyed to
the CVCC.
B. As set forth in Section 6.6.1 of the Plan, cooperate with CVCC towards
the Conservation of a portion of the land it owns in the Conservation
Areas.
C. Contribute $525,000 towards the Endowment Fund for the Monitoring
Program, the Management Program and Adaptive Management.
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D. Participate as a member of the CVCC as set forth in Section 6.1.1.1 of the
MSHCP.
E. Participate in the Joint Project Review Process for its projects within the
Conservation Areas as described in Section 6.6.1.1 of the Plan.
F. Carry out all other applicable requirements of the MSHCP, this
Agreement, and the Permits. Notwithstanding the foregoing, nothing
within this Agreement shall be construed to require IID to provide
funding, or any other form of compensation, beyond the requirements of
the Permits, this Agreement and the MSHCP.
13.10 Caltrans Obligations. Caltrans has the following obligations under the MSHCP
and this Agreement:
A. Implement the necessary requirements to fulfill the purposes of the
Permits, the MSHCP and this Agreement for its Covered Activities. Such
requirements include: 1) compliance with relevant processes and measures
to ensure application of the Conservation Area requirements set forth in
Section 4 of the MSHCP; 2) compliance with the applicable Land Use
Adjacency Guidelines as set forth in Section 4.5 of the MSHCP; 3)
compliance with the Avoidance, Minimization and Mitigation Measures in
Section 4.4 of the MSHCP; 4) ensure implementation consistent with the
Species Conservation Goals and Objectives in Section 9; and 5)
permanently protect and manage Mitigation Land within the reserve
system legally owned and/or controlled by the entity unless conveyed to
the CVCC.
B. As set forth in Section 6.6.2 of the Plan, acquire and convey to CVCC or
provide funding to the CVCC sufficient to acquire 5,791 acres of
Additional Conservation Lands in the Conservation Areas as a
contribution to Plan implementation for the Covered Activities described
in Section 7.2.2 of the Plan. Within five (5) years of Permit issuance,
Caltrans will provide $7.6 million to CVCC for the monitoring,
management, and Adaptive Management of the 5,791 acres.
C. Within one year of Permit issuance, CVCC and Caltrans shall prepare an
agreement that specifies that if the MSHCP Permits are ever revoked, a
conservation bank shall be established whereby the contributed lands are
conveyed to CDFG with an endowment sufficient to provide for the
permanent monitoring, land management, and Adaptive Management of
the land. CVCC, the Wildlife Agencies, and Caltrans will enter into a
Conservation Bank Agreement once a portion or all of the 5,791 acres are
acquired.
D. As described in Section 6.6.1 of the Plan, cooperate with CVAG and
CVCC in the acquisition of 1,795 acres to mitigate the interchange and
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associated arterial projects, and the contribution of $1,077,000 to the
endowment for the Monitoring Program, Management Program, and
Adaptive Management of those lands.
E. Carry out all other applicable requirements of the MSHCP, this
Agreement, and the Permits.
13.11 State Parks Obligations. State Parks has the following obligations under the
MSHCP and this Agreement:
A. Implement the necessary requirements to fulfill the purposes of the
Permits, the MSHCP and this Agreement for its Covered Activities. Such
requirements include: 1) compliance with relevant processes and measures
to ensure application of the Conservation Area requirements set forth in
Section 4 of the MSHCP; 2) compliance with the applicable Land Use
Adjacency Guidelines as set forth in Section 4.5 of the MSHCP; 3)
compliance with the Avoidance, Minimization and Mitigation Measures in
Section 4.4 of the MSHCP; 4) ensure implementation consistent with the
Species Conservation Goals and Objectives in Section 9; and 5)
permanently protect and manage Mitigation Land within the reserve
system legally owned and/or controlled by the entity unless conveyed to
the CVCC.
B. As set forth in Section 6.6.2 of the Plan, prior to construction of camping,
trailhead, and trail facilities as a Covered Activity in the Indio Hills/Joshua
Tree National Park Linkage Conservation Area, acquire a minimum of
640 acres in the Conservation Area, of which a maximum of 100 acres
may be developed as a Covered Activity. Development of the camping
and trailhead facility must be consistent with the Conservation Objectives
for the Conservation Area.
C. Carry out all other applicable requirements of the MSHCP, this
Agreement, and the Permits.
13.12 CVMC Obligations. CVMC has the following obligations under the MSHCP
and this Agreement:
A. Implement the necessary requirements to fulfill the purposes of the
Permits, the MSHCP and this Agreement for its Covered Activities, if any.
Such requirements include: 1) compliance with relevant processes and
measures to ensure application of the Conservation Area requirements set
forth in Section 4 of the MSHCP; 2) compliance with the applicable Land
Use Adjacency Guidelines as set forth in Section 4.5 of the MSHCP; 3)
compliance with the Avoidance, Minimization and Mitigation Measures in
Section 4.4 of the MSHCP; 4) ensure implementation consistent with the
Species Conservation Goals and Objectives in Section 9; and 5)
permanently protect and manage Mitigation Land within the reserve
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system legally owned and/or controlled by the entity unless conveyed to
the CVCC.
B. Manage easements and land owned or leased within the MSHCP Reserve
System that have been set aside for Conservation purposes in accordance
with Sections 8 and 9 of the MSHCP.
C. Carry out all other applicable requirements of the MSHCP, this
Agreement, and the Permits. Notwithstanding the foregoing, nothing
within this Agreement shall be construed to require CVMC to provide
funding, or any other form of compensation, beyond the fees collected or
dedicated lands required pursuant to the Permits, this Agreement and the
MSHCP.
14. USFWS OBLIGATIONS AND ASSURANCES
14.1 Take Authorization for Covered Activities. Upon execution of this Agreement
by all Parties, and satisfaction of all other applicable legal requirements, the USFWS will issue
Permittees a permit under section 10(a)(1)(13) of FESA authorizing incidental Take by Permittees
of the Covered wildlife Species resulting from Covered Activities within the Plan Area, subject
to and in accordance with, the MSHCP, the Permits and this Agreement.
14.2 USFWS Findings - Covered Species. The USFWS has found, following
opportunity for public comment, that: 1) the taking of Covered Species within the Plan Area in
accordance with the MSHCP as implemented will be incidental to the carrying out of otherwise
lawful activities; 2) the MSHCP as implemented will, to the maximum extent practicable,
minimize and mitigate the impacts of such incidental taking; 3) the funding sources identified
and provided for herein will ensure that adequate funding for the MSHCP will be provided; 4)
the requested taking of Covered wildlife Species will not appreciably reduce the likelihood of
survival and recovery of such species in the wild; and 5) the MSHCP, as implemented, will
satisfy and fulfill all measures agreed upon by the Parties for the purposes of the MSHCP
(including procedures determined by the USFWS to be necessary to address Unforeseen
Circumstances).
14.3 Section 10(a) Permit Coverage. The Section 10(a) Permit will identify all
Covered Species. The Permit will take effect for FESA listed Covered Species at the time that
the Section 10(a) Permit is issued. For currently Unlisted Species, the Permit will take effect
when such species are Listed.
14.4 Implementation Assistance. Subject to Section 27.10 of this Agreement,
USFWS shall provide staff to serve on all appropriate committees and shall ensure, to the extent
possible, staff participation in discussions and meetings with the other Parties to ensure that the
implementation of this Agreement is consistent with any findings upon which the Section 10(a)
Permit is based. The USFWS shall, to the extent appropriate, cooperate with the Permittees in
obtaining additional funding from sources including, but not limited to, existing and future state
and federal grant programs and existing and future bond issues.
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14.5 Assurances Regarding MSHCP. After opportunity for public review and
comment, based on the best available current scientific and commercial data, the USFWS has
found that the MSHCP, as implemented by this Agreement: 1) is consistent with and will
complement other applicable Conservation planning and regulatory programs and efforts
addressing wildlife within the region, 2) minimizes and mitigates the potential significant
adverse impacts of the Covered Activities on the Covered Species, 3) will ensure that the
measures agreed upon by the Permittees and the USFWS will be met, and 4) will be
implemented. The USFWS shall not take a position inconsistent with the acknowledgments set
forth in this Section, including, without limitation, in the form of comments offered by the
USFWS in the context of any CEQA or NEPA process associated with approvals for Covered
Activities, with regard to effects on Covered Species.
14.6 Take Authorization for Newly Regulated Covered Species; Savings
Provision. Subject to compliance with all other terms of this Agreement, the Section 10(a)
Permit will automatically become effective for each Unlisted Covered Species upon the listing of
such species as endangered or threatened under FESA. If it is judicially determined that the
USFWS was not authorized to cause the Section 10(a) Permit to become effective automatically
as to Covered Species as they become listed pursuant to FESA, the USFWS shall accept the
minimization and mitigation measures in the MSHCP and this Agreement as the basis for an
application for a section 10(a) amendment or separate Section 10(a) Permits, MBTA Permits,
and/or other Take Authorizations. The USFWS shall use reasonable efforts to review and
process the application expeditiously so as to ensure, provided the Permit amendment or
application meets the requirements of FESA and other applicable federal laws, that the Take
Authorization is effective concurrently with the listing of the Covered Species under FESA. In
issuing such Permits, amendments and/or Take Authorizations, and to the extent that such
judicial determination creating the circumstances requiring such additional review and
processing allows, the USFWS shall not request, impose, recommend or require further
mitigation, Conservation, compensation, enhancement or other protection for such Covered
Species except as expressly provided in this Agreement.
14.7 Changes in the Environmental Laws. It is acknowledged and agreed by the
USFWS that the Permittees are agreeing to perform substantial avoidance, minimization,
mitigation, Conservation and management measures as set forth in this Agreement. If a change
in, or an addition to, any federal law governing or regulating the impacts of Development on
land, water or biological resources as they relate to Covered Species, including, but not limited
to, FESA and NEPA, the USFWS shall give due consideration to the measures required under
the MSHCP in applying the new laws and regulations to the Permittees.
14.8 Section 7 Consultations. The USFWS will evaluate the direct, indirect, and
cumulative effects of the Covered Activities in its internal FESA biological opinion issued in
connection with the MSHCP and issuance of the Section 10(a) Permit. As a result, and to the
maximum extent allowable, in any consultation under section 7 of FESA subsequent to the
Effective Date involving the Permittee(s) or entity with Third Parry Take Authorization with
regard to Covered Species and Covered Activities, the USFWS shall ensure that the FESA
biological opinion issued in connection with the proposed project that is the subject of the
consultation is consistent with the internal FESA biological opinion. Such projects must be
consistent with the terms and conditions of the MSHCP and this Agreement. Any terns and
I"
conditions included under the reasonable and prudent measures of a FESA biological opinion
issued subsequent to the Effective Date with regard to the Covered Species and Covered
Activities shall, to the maximum extent appropriate, be consistent with the implementation
measures of the MSHCP and this Agreement. The USFWS shall not impose measures in excess
of those that have been or will be required by the Permittee(s) or entity with Third Party Take
Authorization pursuant to the MSHCP and this Agreement. The USFWS shall process
subsequent FESA consultations for Covered Activities in accordance with the process and time
periods set forth in 50 Code of Federal Regulations, section 402.14. The Parties agree that this
section does not create an independent cause of action.
14.9 Critical Habitat Designation for Covered Species. The USFWS acknowledges
and agrees that the MSHCP and this Agreement provide a comprehensive, habitat -based
approach to the protection of Covered Species by focusing on the lands essential for the long-
term Conservation of the Covered Species and appropriate management for those lands. This
approach is consistent with the overall purposes of FESA to provide a means whereby the
ecosystems upon which endangered and threatened species depend may be conserved. FESA
regulations specify that the criteria to be used in designating critical habitat include "those
physical and biological features that are essential to the Conservation of a given species and that
may require special management considerations or protection." (50 C.F.R. § 424.12(b).)
The MSHCP and this Agreement provide for the protection of those physical and
biological features essential to the Conservation of the Covered Species in a manner consistent
with USFWS regulations concerning the designation of Critical Habitat. The USFWS agrees
that, to the maximum extent allowable after public review and comment, in the event that a
Critical Habitat determination is made for any Covered Species, and unless the USFWS finds
that the MSHCP is not being implemented, lands within the boundaries of the MSHCP will not
be designated as Critical Habitat. In addition, if Critical Habitat is designated within the
MSHCP boundaries, pursuant to Section 14.11 of this Agreement and except as expressly
provided in Section 14.11 of this Agreement and Section 6.8 of the MSHCP regarding
Unforeseen Circumstances, no subsequent evaluation of the Covered Species, nor any mitigation,
compensation, Conservation enhancement or other protective measures other than those set forth
in the MSHCP will be required. Moreover, to the maximum extent allowable after public review
and comment, the USFWS agrees to reassess and revise the boundaries of existing designated
and proposed Critical Habitat of Covered Species within the MSHCP boundaries after its
approval, although the Parties recognize that funding constraints may influence the timing of
such regulatory action.
14.10 Future Recovery Plans. Recovery plans under FESA delineate actions
necessary to recover and protect federally Listed Species. These plans frequently include
information, or may lead to the development of information, that can contribute to the
development of an adaptive management program. However, recovery plans do not obligate any
Pertnittee, individual or entity to undertake specific tasks.
The Parties acknowledge that FESA recovery plans have no effect on the
implementation of this MSHCP, except to the extent that they may contribute information to, or
assist in achieving the goals of, the Management Program. Any recovery plan applicable to any
Covered Species found in the Plan Area that is developed after the Effective Date shall:
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A. Not require any additional land or financial compensation by Permittees;
B. Be finalized only after the USFWS has consulted with and requested input
from the CVCC and made reasonable attempts to give notice to Plan
Participants of the preparation of the recovery plan; and
C. Not in any way diminish the Take Authorization for Covered Species
granted to Permittees pursuant to the MSHCP, this Agreement, or the
Section 10(a) Permit.
14.11 No Surprises Assurances and Unforeseen Circumstances.
14,11.1 No Surprises Assurances. The USFWS has promulgated the Habitat
Conservation Plan Assurances Rule, published in the Federal Register
on February 23, 1998 (63 Federal Register 8859), and codified at
50 Code of Federal Regulations, sections 17.3, 17.22(b) and 17.32(b)
("No Surprises Rule").
14.11.2 Pursuant to the No Surprise Rule, the assurances by the USFWS in this
Section shall apply so long as the commitments and provisions of the
MSHCP, this Agreement and the Section 10(a) Permit are properly
implemented.
14.11.3 As set forth in Section 6.8.1 of the MSHCP, pursuant to the No
Surprises Rule, as long as the MSHCP is being properly implemented,
the USFWS will not require from Permittees, Third Parties Granted
Take Authorization, Participating Special Entities or other individuals
or entities receiving Take Authorization under the Permits the
commitment of additional land, or financial compensation or
additional restrictions on the use of land or other natural resources
with regard to Covered Activities and their impact on the Covered
Species beyond the level and/or amounts specified in the MSHCP, the
Permits and this Agreement.
14.11.4 As set forth in Section 6.8.1 of the MSHCP, pursuant to the No
Surprises Rule, the USFWS has the burden of making a finding that
Unforeseen Circumstances exist with regard to any Covered Species,
using the best scientific and commercial data available. The findings
must be clearly documented and based upon reliable technical
information regarding the status and habitat requirements of the
affected species. In deciding whether any Unforeseen Circumstances
exist, the USFWS shall consider, but not be limited to the following
factors:
A. The extent of the current range of the Covered Species;
B. The percentage of the range of Covered Species and Habitat that
has been adversely affected by the Covered Activities;
C. The percentage of the range of the Covered Species and Habitat
that has been conserved by the MSHCP;
D. The ecological significance of that portion of the range or Habitat
of the Covered Species;
E. The level of knowledge about the Covered Species and Habitat and
the degree of specificity of the species Conservation program
under the MSHCP; and
F. Whether failure to adopt additional Conservation measures would
appreciably reduce the likelihood of survival and recovery of the
Covered Species in the wild.
14.11.5 In the event the USFWS makes a finding of Unforeseen Circumstances
and such Unforeseen Circumstances warrant the requirement of
additional mitigation, enhancement or compensation measures, any
such additional measures shall be restricted to modification of the
management of the MSHCP Reserve System, and shall be the least
burdensome measures available to address the Unforeseen
Circumstances.
14.11.6 Changed Circumstances, as described in 50 Code of Federal
Regulations section 17.22(b)(5)(i), are adequately addressed in Section
6.8.3 of the MSHCP, and Permittees shall implement any measures for
such circumstances as called for in the MSHCP, as described in
Section 11.3 of this Agreement.
14.12 Migratory Bird Treaty Act. The Section 10(a) Permit shall constitute a Special
Purpose Permit under 50 Code of Federal Regulations section 21.27, for the Take of Covered
Species listed under FESA and which are also listed under the MBTA (16 U.S.C. §§ 703-712), in
the amount and/or number specified in the MSHCP, subject to the terms and conditions specified
in the Section 10(a) Permit. Any such Take will not be in violation of the MBTA. The MBTA
Special Purpose Permit will extend to Covered Species listed under FESA and also under the
MBTA after the Effective Date of the Section 10(a) Permit. This Special Purpose Permit shall
be valid for a period of three (3) years from its Effective Date, provided the Section 10(a) Permit
remains in effect for such period. The Special Purpose Permit shall be renewed pursuant to the
requirements of the MBTA, provided the Permittees remain in compliance with the terms of this
Agreement and the Section 10(a) Permit. Each such renewal shall be valid for a period of three
(3) years, provided that the Section 10(a) Permit remains in effect for such period.
14.13 Management of Land. USFWS agrees to manage its land within the MSHCP
Reserve System pursuant to the provisions of the Plan.
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15. CDFG OBLIGATIONS AND ASSURANCES
15.1 Issuance of NCCP Permit.
15.1.1 Concurrent with the execution of this Agreement, CDFG has issued an
NCCP Permit to the Permittees authorizing the Take of Covered
Species, subject to and in accordance with the MSHCP and this
Agreement.
15. L2 Except as set forth in Section 15.5 of this Agreement, as to each
Covered Species, including both Listed and Unlisted Species, that
Take Authorization shall become effective upon issuance of the NCCP
Permit.
15.2 NCCP Permit Findings. In separate findings, CDFG has found, following
opportunity for public comment, that the MSHCP and this Agreement: 1) adequately provide for
the Conservation and management of the Covered Species and their Habitat within the MSHCP
and 2) satisfy all legal requirements under the NCCP Act necessary for CDFG to issue an NCCP
Permit for such species. CDFG has found that the MSHCP meets the requirements of the NCCP
Act for an NCCP Plan, and has approved the MSHCP as an NCCP Plan. In separate findings,
CDFG has further found that the MSHCP and this Agreement adequately provide for the
mitigation of potential "significant effects on the environment" (as defined in California Public
Resources Code section 21068) which may result to Covered Species and their Habitat from the
Covered Activities in the Plan Area.
15.3 State Assurances. Except for the provisions in Section 15.5, provided Permittees
are implementing the terms and conditions of the MSHCP, this Agreement and the Permits, if
there are Unforeseen Circumstances, CDFG shall not require additional land, water or financial
compensation or additional restrictions on the use of land, water or other natural resources for the
life of the NCCP Permit without the consent of the Permittees, unless CDFG determines that
continued implementation of this Agreement, the MSHCP, and/or the Permits would jeopardize
the continued existence of a Covered Species, or as required by law and would therefore lead to
NCCP Permit revocation or suspension.
The Parties acknowledge that, notwithstanding the assurances provided by this
Section, future modifications to mitigation that are specifically contemplated under the MSHCP
and this Agreement may require adjustments in the mitigation set forth in the MSHCP as of the
Effective Date, including, but not limited to, Take minimization measures and MSHCP Reserve
System management. Such changes are part of the MSHCP's operating Conservation program
and are not precluded by the assurances provided in this Section. In particular, this Section shall
not be construed to diminish the obligation of the Permittees, Third Parties Granted Take
Authorization or Participating Special Entities to undertake mitigation actions in response to
Changed Circumstances and to revise mitigation measures under the Management Program.
However, CDFG acknowledges that neither the Management Program, nor the MSHCP's
provisions concerning Changed Circumstances, are intended to require modifications to the
MSHCP's mitigation program that would require additional funding nor to impose significant
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additional burdens on Permittees, discretionary approvals issued by Permittees, or on
Participating Special Entities with respect to Take minimization measures.
15.4 Implementation Assistance. Subject to Section 27.10 of this Agreement, CDFG
shall provide staff to serve on appropriate committees and shall ensure the availability of staff for
informal discussions and meetings with the other Parties to ensure that the implementation of this
Agreement is consistent with, and will not render invalid, any findings upon which the NCCP
Permit is based. To the extent consistent with its legal authorities, CDFG shall cooperate with
the Permittees in obtaining additional funding from sources including, but not limited to, existing
and future state and federal grant programs and existing and future bond issues.
15.5 Fully Protected Species. The following Covered Species listed in the MSHCP
are fully protected under California Fish and Game Code sections 3511 and 4700: 1) Peninsular
bighorn sheep; 2) Yuma clapper rail; and 3) California black rail. Take of these species is
prohibited under the California Fish and Game Code except as specifically provided in section
2081.7 of that Code. Under the NCCP permit, only CVWD is authorized to Take fully protected
species, as described in that permit. Under Fish and Game Code section 2081.7, CDFG may
authorize CVWD to take Yuma clapper rail and California black rail, if the requirements of that
section are met. CDFG acknowledges and agrees that if the measures set forth in the MSHCP
are fully complied with, the Covered Activities are not likely to result in Take of fully protected
species, except by CVWD. If CDFG determines that such measures are not adequate to prevent
Take of one of the Fully Protected Species, CDFG shall notify the CVCC, USFWS and other
affected Permittees in writing of such discovery and propose new, additional, or different
Conservation measures that it believes are necessary to avoid Take of these species. The
affected Permittees shall implement measures proposed by CDFG or such other measures agreed
to by the Parties as adequate to avoid Take of Fully Protected Species.
If at any time there is a change in state law such that CDFG may issue a section
2081(b) Permit or Take Authorization under Fish and Game Code section 2835, other permit, or
authorization allowing the Take of any species subject to California Fish and Game Code
sections 3511, 4700, 4800, 5050 or 5515, the Permittees may apply for an amendment of the
MSHCP and NCCP Permit or for a new permit for such species. In processing any such
application, CDFG shall give good faith consideration to Take avoidance and mitigation
measures already provided in the MSHCP and shall issue the amendment or Permit under the
same terms and conditions as the existing NCCP Permit, to the extent permitted by law.
15.6 Changes in the Environmental Laws. It is acknowledged and agreed by CDFG
that the Permittees are agreeing to perform substantial avoidance, minimization, mitigation,
Conservation and management measures set forth in this Agreement and the MSHCP. If a
change in, or addition to, the Environmental Laws takes place, CDFG shall give good faith
consideration to the measures required under the MSHCP in applying the new laws and
regulations to the Permittees.
15.7 Consultations by CDFG. Except as otherwise required by law, CDFG shall not
recommend or otherwise seek to impose through consultation with other public agencies any
mitigation, compensation or habitat enhancement requirements regarding impacts to Covered
Species that exceed the requirements prescribed in and pursuant to the MSHCP and this
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Agreement, including, without limitation, in the form of comments offered by CDFG in the
context of any CEQA process associated with approvals for Covered Activities with regard to
effects on Covered Species.
15.8 Management of Land. CDFG agrees to manage its land within the MSHCP
Reserve System consistent with the MSHCP, along with other legal mandates and management
objectives.
16. RELATIONSHIP TO OTHER EXISTING HABITAT CONSERVATION PLANS,
NCCP PERMITS AND SECTION 2081 PERMITS
16.1 General. The Parties acknowledge that there are Habitat Conservation Plans,
biological opinions issued pursuant to section 7 and section 2081 Permits, currently in existence
for projects in the Coachella Valley and surrounding mountains within Riverside County. The
Parties agree that the MSHCP is not incompatible with nor does it negate these existing plans
and Permits. Upon request, the Parties may consider consolidation of these Permits and plans
into the MSHCP.
16.2 Coachella Valley Fringe -Toed Lizard Take Authorization. The Permiees will
relinquish the Coachella Valley Fringe -Toed Lizard ("CVFTL") Section 10(a) Permit pursuant to
50 CFR 13.26 within six months of issuance of the MSHCP Section 10(a) Permit, which will
allow for final accounting and completion of other administrative activities under the CVFTL
HCP. Upon relinquishment of the CVFTL permit, Take Authorization for the CVFTL for
Covered Activities will be provided pursuant to the MSHCP Section 10(a) Permit. Because the
CVFTL Section 10(a) Permit will no longer exist, the consistency determination (under Fish and
Game Code section 2080.1) which was based on such permit will also terminate. Upon issuance
of the MSHCP Section 10(a) Permit, the current fees required under the CVFTL HCP will no
longer be imposed.
17. THIRD PARTY TAKE AUTHORIZATION
17.1 Authorization. Upon execution of this Agreement by the Parties and the
issuance of the Permits by the Wildlife Agencies, the Permittees may allow the Take of Covered
Species by landowners, developers, and other private and public entities undertaking Covered
Activities. Such Covered Activities must be under the direct control of the Permittees in
conformance with approvals granted by the Permittees, or carried out in conformity with a
Certificate of Inclusion or other written mechanism or instrument, and in compliance with this
Agreement, the Permits and the MSHCP. As set forth in Section 11.1.1 of this Agreement,
Permittees shall include as a part of any discretionary or certain City ministerial approvals, a
Certificate of Inclusion or other written mechanism, a condition requiring compliance with the
Permits, the MSHCP and this Agreement, that describes the Take Authorization to be granted
pursuant to Section 17.2 of this Agreement. Such property owners, developers, and private and
public entities shall receive Take Authorization provided they are in full compliance with all
requirements of this Agreement, the MSHCP, the Permits, the Implementation Mechanism
adopted by Permittees, issued entitlements and all other applicable requirements.
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17.2 Timing of Take Authorization. Authorization of Take for Third Parties shall
occur upon issuance of a grading permit by a Local Permittee or issuance of a Certificate of
Inclusion by the CVCC or other Local Permittee. Alternatively, as an incentive to convey
property needed for inclusion in the MSHCP Reserve System and for which monetary
compensation will not be provided, Third Party Take Authorization may be granted upon project
approval and property conveyance. In order to obtain this early Take Authorization, the
conveyance must occur within forty-five (45) days of project approval. Any subsequent
suspension or revocation of Permits terminating Third Party Take Authorization will not be
applicable to the Take Authorization granted upon the projects approval, provided the property
has been conveyed and all other mitigation obligations have been satisfied, except where such
Take Authorization will jeopardize a Covered Species listed under FESA and/or CESA. In this
event, the provisions of Section 17.4 of this Agreement would be triggered. No grading permit
or Certificate of Inclusion shall be issued by a Local Permittee until all mitigation requirements
imposed by the Permittees through the Implementation Mechanism have been fully satisfied or
are guaranteed to occur within a set time frame as approved by the Permittee. In the event that
such mitigation requirements have not been satisfied prior to issuance of grading permit or
Certificate of Inclusion, the applicant and the Permittee shall enter into an agreement setting
forth the terms and conditions of MSHCP compliance and appropriate remedies for non-
compliance. The "Cake Authorization conferred by the Permittees to the Third Parties shall be for
the length of time, and run concurrently with, the specific land development approval or other .
entitlement or approval granted by the Permittees and the term of the Permits.
17.3 Effect of MSHCP Amendments on Third Parties. Amendments or other
revisions to the MSHCP, subsequent to the granting of Take to a Third Party by a Permittee,
shall not affect the Take conferred upon a Third Parry or the level of compensation required
unless the Third Parry, the Wildlife Agencies and the affected Permittee all agree to such
amendments or revisions.
17.4 Effect of Revocation or Suspension of Permits on Third Parties. In the event
that one or both of the Wildlife Agencies revoke or suspend all or a portion of the Take
Authorization allowed under the Permits, and provided the affected Permittee continues to carry
out its obligations under the MSHCP, this Agreement and the Permits, the Take Authorization
and other assurances granted to Third Parties Granted Take Authorization by the Permittees will
remain in effect as to each individual Third Party project that received Take Authorization prior
to the revocation or suspension unless USFWS or CDFG determines that continuation of the
Permits with regard to Take by Third Parties Granted Take Authorization would likely
jeopardize a species listed under FESA and/or CESA. In this event, the CVCC, applicable
Permittee(s), Third Parties Granted Take Authorization and Wildlife Agencies, shall meet and
confer pursuant to the provisions in Section 23.6 of this Agreement. If these Parties cannot reach
a mutually satisfactory resolution, the Wildlife Agencies may revoke or suspend all Take
Authorization under the MSHCP for that listed species. In this event, all Local Permittees, Third
Parties Granted Take Authorization and Participating Special Entities would be eligible for full
or partial refund from the CVCC or other appropriate Permittees of any mitigation contribution,
as appropriate, except to the extent that Take had already occurred. The CVCC or other
applicable Permittee will issue a notice to all potentially affected property owners that Take
Authorization for that listed species is no longer valid under the Plan.
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17.5 Effect of No Surprises Assurances on Third Parties. Pursuant to the No
Surprises Rule, the Wildlife Agencies shall not require the commitment of additional land or
financial compensation or other mitigation from the Permittees, and the Permittees will not
require such commitments from a Third Party pursuant to the Permits, the MSHCP or this
Agreement beyond those measures imposed on the Third Party by the Local Permittee in
accordance with the Permit, the MSHCP and this Agreement, unless agreed to by the Third
Party. The Parties acknowledge that additional measures may be required for a species that is
not a Covered Species, as described in Section 11.3.5 of this Agreement.
17.6 Retention of Enforcement Authority Over Third Parties. The Parties reserve
the right to enforce all applicable federal, state, or local laws against persons or entities which
engage in unlawful land development activity without obtaining proper permits and approvals.
The Parties further reserve the right to enforce all applicable federal, state, or local laws against
Third Parties conducting land development activities within the Plan Area not in compliance
with project approvals pursuant to the MSHCP. Local Permittees have the obligation to enforce
conditions of project approval as described in Section 13.0 of this Agreement.
18. COOPERATIVE EFFORT
In order to ensure that the legal requirements set forth in this Agreement are fulfilled,
each of the Parties to this Agreement must perform certain specified tasks as set forth in this
Agreement and the MSHCP. The MSHCP and this Agreement thus describe a cooperative effort
by federal, state and local agencies to implement a program of Conservation for the Covered
Species.
Additionally, the Parties shall work cooperatively to enter into appropriate Memoranda of
Understanding or other appropriate agreements with any non -Party managing land within the
MSHCP Reserve System to manage lands in conformance and compliance with the MSHCP. A
draft Model Memorandum of Understanding is attached hereto as Exhibit "F."
19. TERM
19.1 Effective Date. This Agreement shall be effective upon issuance of the Permits.
Any Permittee executing this Agreement after the Effective Date shall, upon execution, become
a Party to this Agreement, with all the rights and obligations of Parties defined herein, and this
Agreement shall be enforceable between each later executing Permittee and all prior signing
Parties.
19.2 Term of the Agreement. This Agreement shall run for a term of seventy-five
(75) years from the Effective Date, unless terminated in accordance with Section 21 of this
Agreement or unless extended by agreement of all of the Parties hereto.
19.3 Term of the Permits. The Permits shall run for a term of seventy-five (75) years
from the Effective Date unless terminated as provided in this Agreement, provided the
requirements of Section 11.1 of this Agreement have been met. This term was selected as
reasonable due to the scope and breadth of the Plan, the need to establish an adequate
endowment to manage and monitor the MSHCP Reserve System and the projected growth and
planned infrastructure within the Plan Area.
�.
19.4 Extension of the Permit. Upon agreement of the Parties and in compliance with
all applicable laws, the Wildlife Agencies may, with respect to the Permits under their respective
jurisdiction, extend the Permits beyond their initial terms under the applicable regulations in
force on the date of such extension. If Permittees desire to extend the Permits, they will so notify
the Wildlife Agencies at least twelve (12) months before the then -current term is scheduled to
expire and submit an application to renew the Permits. Extension of the Permits constitutes
extension of the MSHCP and this Agreement for the same amount of time, subject to any
modifications agreed to by the Parties at the time of extension.
19.5 Permanent Preservation. Notwithstanding the stated term as herein set forth,
the Parties agree and recognize that once Take of a Covered Species and/or their habitat
modified within the Plan Area, such Take and habitat modification will be permanent. The
Parties therefore agree that obligations regarding the preservation and maintenance of the habitat
provided for under the Permits, the MSHCP and this Agreement is likewise intended to be
permanent and to extend beyond the term of this Agreement.
20. MODIFICATIONS AND AMENDMENTS TO THE MSHCP
20.1 Clerical Changes. Clerical changes to the MSHCP shall be made by the CVCC
on its own initiative or in response to a written request submitted by any Permittee or Wildlife
Agency, which includes documentation supporting the proposed clerical change. Clerical
changes shall not require any amendment to the MSHCP, the Permits or this Agreement.
Clerical changes include corrections of typographical, grammatical, and similar editing errors
that do not change the intended meaning as well as corrections of any maps or exhibits to correct
insignificant errors in mapping. The Parties anticipate that most clerical changes to the MSHCP
will occur during the first ten (10) years of the Permits. Annual reports shall include a summary
of clerical changes made to the MSHCP in the preceding calendar year.
20.2 Land Use Changes. The Parties agree that the adoption and amendment of
general plans, specific plans, community plans, zoning ordinances and similar land use
ordinances, and the granting of implementing land use entitlements by the County and the Cities
are matters within the sole discretion of the County and Cities and shall not require amendments
to this Agreement or the approval of other Parties to this Agreement. However, the Parties agree
that: 1) no such action by the County or the Cities shall in any way alter or diminish their
obligations under this Agreement, the MSHCP, or the Permits, and 2) approval of certain
projects may lead to revocation or suspension of the Permits pursuant to Section 23.5 of this
Agreement.
20.3 Adaptive Management Changes. Except as otherwise provided, changes to
avoidance measures, minimization, mitigation, compensation and MSHCP Reserve System
management strategies developed through and consistent with the Management Program
described in Section 8.0 of the MSHCP shall not require any amendment to the MSHCP, this
Agreement or the Permits.
20.4 Minor Amendments. Minor Amendments are amendments to the MSHCP of a
minor or technical nature where the effect on Covered Species, levels of Take and Permittees'
ability to implement the MSHCP are not significantly different than those described in the
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MSHCP as originally adopted. Minor Amendments to the MSHCP shall not require amendments
to this Agreement or the Permits.
20.4.1 List of Minor Amendments. As set forth in Section 6.12.3 of the
MSHCP, the following are contemplated as Minor Amendments to the
MSHCP and therefore, will be administratively implemented pursuant
to the procedures below. Minor Amendments processed pursuant to
this subsection are limited to those listed in Sections 20.4.2 and 20.4.3
of this Agreement.
20.4.2 Minor Amendments not Requiring Wildlife Agencies
Concurrence.
A. Minor corrections to land ownership;
B. Adjustment of land ownership and Conservation acreages in the
Santa Rosa and San Jacinto Mountains Conservation Area upon
completion of a land exchange between the Agua Caliente Band of
Cahuilla Indians and BLM, as discussed in Section 4.2.1.1 of the
Final MSHCP;
C. Minor revisions to survey, monitoring, reporting and/or
management protocols that clearly do not affect Covered Species
or overall MSHCP Reserve System functions and values;
D. Application of Take Authorization to Development within cities
incorporated within the MSHCP boundaries after the Effective
Date of this Agreement, pursuant to Section 11.5 of this
Agreement, provided such inclusion does not preclude Reserve
Assembly, significantly increase the cost of MSHCP Reserve
System Assembly or management or preclude achieving
Conservation Area Conservation Objectives or Species
Conservation Goals;
E. Annexation or deannexation of property within the Plan Area
pursuant to Section 11.4 of this Agreement, provided such
inclusion does not preclude Reserve Assembly, significantly
increase the cost of MSHCP Additional Conservation Lands
management or assembly, or preclude achieving Conservation
Area Conservation Objectives or Species Conservation Goals;
F. Updates/corrections to the natural communities map and/or species
occurrence data; and
G. Changes to the RMU boundaries.
ME
20.4.3 Minor Amendments Requiring Wildlife Agencies Concurrence.
A. Conservation Area boundary adjustments as set forth in Section
6.12.2 of the MSHCP.
B. Construction and operation of CVWD water recharge and storage
and other water related facilities as set forth in Section 7.3 of the
MSHCP.
C. Modifications of the alignment of the Palm Desert to La Quinta
Connector Trail from the alignment in the Trails Plan in the Final
MSHCP.
D. Transfer of Conservation Objectives for conserved natural
communities and/or identified Covered Species between
Conservation Areas or between Recovery Zones in the Santa Rosa
and San Jacinto Mountains Conservation Area may occur if the
following is demonstrated:
1. The transfer does not reduce the number of acres
anticipated by the Plan of the natural community or the
species' habitat conserved.
2. The transfer does not reduce the Conservation value of the
lands that will be conserved based on natural community
patch size, configuration, and juxtaposition within the
matrix of Conserved Habitat and is of greater or equal
habitat value.
3. There is no reduction in Conservation and no increase in
Take.
4. Transfers must be within kind (for a Covered Species or
natural community). Any shifts must be species -specific
and meet the above criteria.
E. Changes to the list of exotic species in Table 4-112 of the MSHCP
F. Future proposals for new trails on Reserve Lands in the Santa Rosa
and San Jacinto Mountains Conservation Area, other than the
identified new trails (including perimeter trails)
20.4.4 Procedure. Any Party may propose Minor Amendments to the
MSHCP or this Agreement by providing written notice to all other
affected Parties. Such notice shall include a description of the
proposed Minor Amendment, an explanation of the reason for the
proposed Minor Amendment, an analysis of its environmental effects
including any impacts to the Conservation of Covered Species and a
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description of why that Party believes the effects of the proposed
Minor Amendment: 1) are not significantly different from, and are
biologically equivalent to, the terms in the MSHCP as originally
adopted; 2) substantially conform to the terms in the MSHCP as
originally adopted; and 3) will not significantly reduce the ability to
acquire the Additional Conservation Lands. The Wildlife Agencies
and affected parties shall submit any comments on the proposed Minor
Amendment in writing within sixty (60) days of receipt of such notice.
Any Party can institute the informal meet and confer process set forth
in Section 23.6 of this Agreement to resolve disagreements concerning
Minor Amendments.
For the minor amendments requiring Wildlife Agencies' concurrence,
any non -concurrence must occur within sixty (60) days of receipt of
the written notice as referenced above. If the Wildlife Agencies
concur or if they fail to respond within the sixty (60) days period, the
Minor Amendment may be approved. If the Wildlife Agencies do not
concur with the analysis supporting the Minor Amendment in writing
within the 60-day period, the project will be subject to a Major
Amendment.
20.5 Major Amendments. Major Amendments are those proposed changes to the
MSHCP and the Permits that are not clerical or Minor Amendments. Major Amendments to the
MSHCP shall require a subsequent amendment to this Agreement and the Permits, and public
notice as required by applicable laws and regulations. The CVCC shall submit any proposed
Major Amendments to the Wildlife Agencies.
20.5.1 List of Major Amendments. Major Amendments include, but are not
limited to, any of the following:
A. All amendments not contemplated in this Agreement as clerical or
Minor Amendments to the MSHCP, except subsequent minor
changes which are not specifically listed as a Minor Amendment in
this Agreement that the Wildlife Agencies have determined to be
insubstantial and appropriate for implementation as a Minor
Amendment;
B. Changes to the boundary of the Plan Area;
C. Addition of species to the Covered Species list; and
D. Changes in anticipated Reserve Assembly or funding strategies and
schedules that would have substantial adverse effects on the
Covered Species.
20.5.2 Procedure. Major Amendments shall be processed as set forth in
Section 6.12.4 of the MSHCP and require the same process followed
for the original MSHCP approval. A Major Amendment will require
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an amendment to the MSHCP and this Agreement addressing the new
circumstances, subsequent publication and public notification,
CEQA/NEPA compliance and intra-Service section 7 Consultation, if
one is deemed necessary. Major Amendments shall be subject to
review and approval by the CVCC and other Permittees as appropriate,
at a noticed public hearing. The Wildlife Agencies will use reasonable
efforts to process proposed Major Amendments within one hundred
twenty (120) days after publication in the Federal Register of the
proposed Major Amendment.
20.6 Like Exchanges in Conservation Areas. Like exchanges in Conservation Areas
may be implemented pursuant to Section 6.12.2 of the MSHCP.
21. TERMINATION OF PERMITS
21.1 Termination in General. The Permittees may unanimously elect to terminate the
MSHCP and the Permits. In order to terminate, the CVCC shall make written findings at a
noticed public hearing that further compliance with this Agreement, and implementation of the
MSHCP, are either not feasible or no longer in the best interest of the County, the Cities and the
other Permittees. Termination by the Permittees shall not be effective until sixty (60) days after
the CVCC has provided written notice to the Wildlife Agencies of the adoption of termination
findings.
21.2 Continuing Obligations. In the event of termination, consistent with the
requirements of 50 Code of Federal Regulations sections 17.32(b)(7) and 17.22(b)(7), the
Permittees will remain obligated to fulfill any existing and outstanding minimization and
mitigation measures required under the terms of the Permits for Take that occurs prior to such
termination and such minimization and mitigation measures as may be required pursuant to the
terms of this Agreement and the MSHCP. With the consent of the Wildlife Agencies, the CVCC
may transfer its obligations to a professional land manager approved by the Wildlife Agencies or
to the Wildlife Agencies directly, or to another appropriate entity and/or entities acceptable to the
Wildlife Agencies.
All Local Development Mitigation Fees that have been collected and held by the
CVCC, the County and the Cities shall be placed in an interest bearing account governed by the
CVCC, and shall be transferred to a professional land manager, the Wildlife Agencies directly,
or other appropriate entity and/or entities acceptable to the Wildlife Agencies.
21.3 Final Accounting. At the time of termination, the CVCC shall provide to the
Wildlife Agencies a final accounting of management activities and monitoring information. Such
final accounting shall include, at a minimum, all of the information contained in the Annual
Report described in Section 6.4 of the MSHCP and all outstanding obligations for future actions
regarding implementation of the MSHCP. The final accounting shall specify the Permittees'
specific responsibilities and time frames for carrying out such obligations to ensure Rough Step
requirements are met by the Permittees.
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21.4 Dissolution of the CVCC. In the event the CVCC disbands or is otherwise
dissolved at the time of termination, the CVCC's obligations under this Agreement shall be
carried out by the County or other appropriate entity and/or entities acceptable to the Wildlife
Agencies.
22. WITHDRAWAL OF PERMITTEE(S)
22.1 Withdrawal in General. A Permittee may terminate its participation in the
MSHCP and abandon its Take Authorization set forth in the Permits by notifying the Parties
hereto in writing of its intent to terminate its participation. Any Permittee that elects to terminate
participation in the MSHCP shall provide at least ninety (90) days written notice to all Parties.
Prior to any such termination, the Permittee shall provide to the CVCC a final accounting of any
information gathered by the Permince with respect to implementation of the MSHCP, and shall
transfer to the CVCC any Local Development Mitigation Fees or other funds related to the
MSHCP that have been collected.
22.2 Mitigation Responsibilities. Consistent with the requirements of 50 Code of
Federal Regulations sections 17.32(b)(7) and 17.22(b)(7), the withdrawing Permittee remains
responsible for any existing and outstanding minimization and mitigation measures required
under the terms of the Permits for Take that occurs prior to such withdrawal, and such
minimization and mitigation measures as may be required pursuant to the terms of this
Agreement and the MSHCP.
22.3 Termination of Permittee Take Authorization. Termination of participation by
any Permittee will automatically terminate Take Authorization for Covered Activities within that
Permittee's jurisdiction. However, for those Covered Activities within that Permittee's
jurisdiction that have been issued a grading permit or, if a grading permit is not required, have
commenced grading activities or have been issued a Certificate of Inclusion prior to the
notification or the Permittee's formal decision to terminate, Take Authorization shall continue
under the remaining Permits provided all relevant obligations have been met pursuant to the
MSHCP, this Agreement and the Permittee's land use entitlements. In this event, the
withdrawing Permittee may elect to continue enforcement of the Plan for the Covered Activities.
Otherwise, the CVCC or other appropriate remaining Permittee shall enter into a Certificate of
Inclusion or other written mechanism or instrument with the Third Party Granted Take
Authorization or Participating Special Entity. The Certificate of Inclusion or other written
mechanism shall be automatically issued provided the applicable Parties are in compliance with
the MSHCP, this Agreement and the Permits.
22.4 Evaluation of Remaining Permits. In the event of termination by any Permittee,
the CVCC shall meet and confer with the Wildlife Agencies to determine to what extent, if any,
Take Authorization may continue to be provided to the remaining Permittees. In making this
determination, the Wildlife Agencies shall evaluate the benefits to Covered Species resulting
from the participation of the remaining Permittees, the extent to which the withdrawing
Permittee has outstanding obligations for compliance with Take minimization and mitigation
measures, an evaluation of whether the Permits continue to meet issuance criteria pursuant to
FESA and the NCCP Act, and any other relevant information. Such evaluation shall include an
analysis of the viability of the MSHCP Reserve System without the participation of the
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Permittee, including whether adequate funding will be available to implement the terms of the
MSHCP.
23. REMEDIES AND ENFORCEMENT
23.1 Remedies in General. Except as set forth below, each Party shall have all
remedies otherwise available to enforce the terms of the MSHCP, this Agreement and the
Permits, and to seek remedies for any breach hereof, subject to the following limitations:
23.1.1 No Monetary Damages. No Party shall be liable in money damages
to any other Party or any other person for any breach of this
Agreement, any performance or failure to perform a mandatory or
discretionary obligation imposed by this Agreement or any other cause
of action arising from this Agreement. Notwithstanding the foregoing:
A. All Parties shall retain whatever liability they would possess for
their present and future acts, or failure to act, without existence of
this Agreement.
B. All Parties shall retain whatever liability they possess as an owner
of interests in land.
C. Nothing contained in this Agreement is intended to limit the
authority of the United States government or the government of the
State of California to seek civil or criminal penalties or otherwise
fulfill its/their enforcement responsibilities under FESA, CESA,
the NCCP Act, or other applicable law.
23.2 Default. Any material breach or violation of this Agreement, the MSHCP, or the
Permits shall be deemed a default under this Agreement.
23.2.1 Notice and Opportunity to Cure Default. If any Party determines
that one of the other Parties is in violation of the terms of this
Agreement, or that a violation is threatened, that Party shall give
written notice to the violating Party of such violation and demand in
writing the cure of such violation. If the violating Party fails to cure
the violation within forty-five (45) days after receipt of said written
notice and demand from the notifying Party, or said cure reasonably
requires more than forty-five (45) days to complete and the violating
Party fails to begin the cure within the forty-five (45) day period or
fails to continue diligently to complete the cure, the notifying Party
may bring an action at law or in equity in a court of competent
jurisdiction to: 1) enforce compliance by the defaulting Party with the
terms of this Agreement, 2) recover actual damages to which the
notifying Party may be entitled for violation by the defaulting Party of
the terms of this Agreement subject to the limitations stated in Section
23.1 above, and/or 3) enjoin the violation, ex parte as necessary, by
temporary or permanent injunction without the necessity of proving
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either actual damages or the inadequacy of otherwise available legal
remedies, or for other equitable relief. The notifying Parry may apply
any damages recovered to the cost of undertaking any corrective
action.
23.3 Injunctive and Temporary Relief. The Parties acknowledge that the Covered
Species are unique and that their loss as species would result in irreparable damage to the
environment and therefore injunctive and temporary relief may be appropriate to ensure
compliance with the terms of this Agreement.
23.4 Limitation and Extent of Enforceability. Except as otherwise specifically
provided herein, nothing in this Agreement shall be deemed to restrict the rights of the
Permittees to the use of those lands, or interest in lands, constituting the Plan Area, provided that
nothing in this Agreement shall absolve the Permittees from such other limitations as may apply
to such lands, or interest in lands, under other laws or regulations of the United States, the State
of California, or any local agency with jurisdiction over those lands.
23.5 Revocation or Suspension of the Permits. The Wildlife Agencies shall have the
right to revoke or suspend all or portions of the Permits, in accordance with the laws and
regulations in force at the time of such revocation or suspension. Such action may also be
triggered by: 1) failure of a Permittee to implement the Implementation Mechanisms adopted by
that agency; 2) approval of a proposed Development or public project that significantly
compromises the viability of the MSHCP Reserve System; 3) failure to comply with Rough Step
requirements set forth in Section 6.5 of the MSHCP; and/or 4) withdrawal of a Permittee. Such
suspension or revocation may apply to the entire applicable Permit, or only to a portion such as
specified Conservation Area, specified Covered Species, or specified Covered Activities. Such
action may also be triggered if the Wildlife Agencies determine that land within the
Conservation Areas is annexed to a non -participating public agency and thus, development of
such land could significantly compromise the viability of the MSHCP Reserve System.
Except as otherwise required by law, prior to taking action to revoke or suspend
the Permits, the Wildlife Agencies, as applicable, shall: 1) provide thirty (30) day prior written
notification to the relevant Permittee(s) and the CVCC of the proposed revocation or suspension,
and 2) meet and confer with the relevant Permittee(s) and the CVCC to attempt to avoid the need
to revoke or suspend all or a portion of the Permits. The Parties may rely upon the informal meet
and confer process set forth in Section 23.6 of this Agreement for disputes concerning potential
Permit revocation or suspension.
If the Permits are suspended or revoked, Permittees shall not have the authority to
rely upon the Permits to approve or carry out any actions which would violate FESA or CESA in
the absence of such Permits. In the event of suspension or revocation of the Permits, Permittees'
obligations under this Agreement and the MSHCP to cant' out all of their responsibilities under
the MSHCP, the Permits and this Agreement arising from any Covered Activity approved,
authorized or carried out by the Permittees between the Effective Date of the Agreement and the
date the Permits are revoked or suspended will continue until the USFWS and/or the CDFG
determines that all Take of Covered Species that occurred under the Permits has been addressed
pursuant to the terns of the Permits. Provided the suspension or revocation is not the result of
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the Permittee(s)' failure to properly implement the MSHCP, no additional mitigation beyond that
contemplated in the MSHCP and this Agreement will be required. As to any Covered Activity of
a Third Party that is approved or authorized by a Local Permittee and for which Take is
authorized prior to the suspension or revocation or for Caltrans Covered Activities for which
mitigation has already been contributed, so long as the Local Permittee and Third Party continue
to fulfill their obligations under the Permits, the Take Authorization shall continue in effect for
that project until completion pursuant to Section 23.7 of this Agreement, except where such Take
Authorization will jeopardize a Species listed under FESA or CESA.
23.6 Informal Meet and Confer Process for Disputes Concerning Covered
Activities, State Streambed Alteration Agreements, Federal 404 Permits, and ESA Section
7 Consistency Consultation. Concerning Covered Activities, state streambed alteration
agreements, federal 404 permits, and section 7 consistency consultations, the Parties agree to
work together in good faith to resolve disagreements using the informal dispute resolution
procedures set forth in this Section, or such other procedures upon which the Parties may later
agree. However, if at any time a Party determines that circumstances so warrant, such Party may
seek any available remedy without waiting to complete this informal meet and confer process.
Unless the Parties agree upon another dispute resolution process, or unless the
CDFG or the USFWS has initiated administrative proceedings or litigation in federal or state
court, the Parties may use the following process to attempt to resolve disputes concerning
Covered Activities, state streambed alteration agreements, federal 404 permits, and ESA section
7 consistency consultations:
A. The CDFG and/or the USFWS will notify the CVCC in writing of:
1. disagreements they may have with the impact of a proposed
Covered Activity on a covered species,
2. the basis for CDFG's and/or USFWS's contention that the MSHCP
lacks certain identified measures necessary to the continued
existence of the identified species, or that the MSHCP contains
measures that may be detrimental to the continued existence of the
impacted Covered Species.
3. the basis for contending that the proposed Covered Activity is not
consistent with the MSHCP and the Permits.
4. concerns they may have regarding the issuance of a state
streambed alteration agreement, a federal 404 permit, or a section 7
consistency determination.
B. The CVCC, in coordination with the project applicant(s), will have sixty
(60) days, or such other time as may be agreed upon, to respond. During
this time, the CVCC, in coordination with the project applicant(s), may
seek clarification of the information provided in the initial notice. The
CDFG and/or the USFWS will use reasonable efforts to provide all
information available to them that may be responsive to such inquiries.
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C. Within sixty (60) days after such response was provided or was due,
representatives of the Parties (and the project applicant(s) if the project
applicant(s) so chooses) having authority to resolve the dispute will meet
and negotiate in good faith toward a mutually satisfactory solution.
D. If any disagreement cannot be resolved through such negotiations, the
Parties will consider other alternative dispute resolution processes and, if a
dispute resolution process is agreed upon, will make good faith efforts to
resolve those remaining disagreements through that process.
23.7 Continuation Of Take Authorization after Revocation, Suspension or
Permittee Withdrawal. In the event of revocation or suspension of the Permits pursuant to
Section 23.5 of this Agreement or withdrawal of a Permittee pursuant to Section 22 of this
Agreement, any Third Party Granted Take Authorization or Participating Special Entity who is in
compliance with the terms and conditions of the MSHCP, this Agreement and the Permits can
automatically continue to receive Take Authorization from the CVCC or other remaining
Permittee upon execution of a Certificate of Inclusion or other written mechanism or instrument
issued by the CVCC or other remaining Permittee, except as otherwise required by law.
24. FORCE MAJEURE
In the event that the Permittees are wholly or partially prevented from performing
obligations under this Agreement because of unforeseeable causes beyond the reasonable control
of and without the fault or negligence of the Permittees ("Force Majeure"), including, but not
limited to, acts of God, labor disputes, sudden actions of the elements, or actions of non-
participating federal or state agencies or local jurisdictions, the Permittees shall be excused from
whatever performance is affected by such unforeseeable cause to the extent so affected, and such
failure to perform shall not be considered a material violation or breach, provided that nothing in
this Section shall be deemed to authorize any Party to violate FESA, CESA or the NCCP Act,
and provided further that:
A. The suspension of performance is of no greater scope and no longer
duration than is required by the Force Majeure;
B. Within fifteen (15) days after the occurrence of the Force Majeure,
affected Permittees shall give the Wildlife Agencies written notice
describing the particulars of the occurrence;
C. Permittees shall use their best efforts to remedy their inability to perform
(however, this paragraph shall not require the settlement of any strike,
walk -out, lock -out or other labor dispute on terms which in the sole
judgment of the Permittees are contrary to their interest); and
D. When Permittees are able to resume performance of their obligations, the
affected Permittees shall give the Wildlife Agencies written notice to that
effect.
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25. LEGAL AUTHORITY OF THE USFWS
The USFWS enters into this Agreement pursuant to FESA, the Fish and Wildlife
Coordination Act (16 U.S.C. sections 661-666(c)), and the Fish and Wildlife Act of 1956 (16
U.S.C. sections 742(b) et seq.). Section 10(a)(1)(B) of FESA expressly authorizes the USFWS
to issue a Section 10(a) Permit to allow the Incidental Take of animal species listed as threatened
or endangered under FESA. The legislative history of section 10(a)(1)(B) clearly indicates that
Congress also contemplated that the USFWS would approve a habitat conservation plan that
protects Unlisted Species as if they were listed under FESA, and that in doing so, the USFWS
would provide assurances for such Unlisted Species. The USFWS routinely approves habitat
conservation plans that address both listed and unlisted Species.
26. LEGAL AUTHORITY OF THE CDFG
CDFG enters into this Agreement pursuant to its separate and independent authority
under the NCCP Act (California Fish and Game Code sections 2800 et seq.). CDFG may
authorize the Take of Covered Species, other than fully protected species, pursuant to California
Fish and Game Code section 2835.
27. MISCELLANEOUS PROVISIONS
27.1 Response Times. The Parties agree that time is of the essence in performance of
the obligations of this Agreement. Except as otherwise set forth herein or as statutorily required
by CEQA, NEPA, CESA, FESA, the NCCP Act or any other laws or regulations, the Wildlife
Agencies and the Permittees shall use reasonable efforts to respond to written requests within a
forty-five (45) day time period.
27.2 No Partnership. Except as otherwise expressly set forth herein, neither this
Agreement nor the MSHCP shall make, or be deemed to make, any Party to this Agreement the
agent for, or the partner or joint venturer of, any other Party.
27.3 Nullification of Agreement. In the event that the Permits are not issued, this
Agreement shall be null and void and no Party shall be bound by its terms.
27.4 Notices. Any notice permitted or required by this Agreement shall be in writing,
delivered personally, by overnight mail, or by United States mail, certified and postage prepaid,
return receipt requested to the persons listed below and addressed as follows, or at such other
address as any Party may from time to time specify to the other Parties in writing. Notices may
be delivered by facsimile or other electronic means, provided that they are also delivered
personally or by overnight or certified mail. Notices shall be transmitted so that they are
received within the specified deadlines. Notice delivered via certified mail, return receipt
requested, shall be deemed given five (5) days after deposit in the United States mail. Notices
delivered personally shall be deemed given on the date they are delivered. Notices delivered via
overnight delivery shall be deemed given on the next business day after deposit with the
overnight mail delivery service. The CVCC shall maintain a list of individuals responsible for
ensuring Plan compliance for each of the Parties which may change. The following are the
individuals currently responsible for ensuring Plan compliance:
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Executive Director
Coachella Valley Association of Governments
73-710 Fred Waring Drive, Suite 200
Palm Desert, California 92260
Telephone: 760-346-1127
Telefax: 760-340-5949
Executive Director
Coachella Valley Conservation Commission
73-710 Fred Waring Drive, Suite 200
Palm Desert, California 92260
Telephone: 760-346-1127
Telefax: 760-340-5949
Executive Director
Coachella Valley Mountains Conservancy
73-710 Fred Waring Drive, Suite 205
Palm Desert, CA 92260
Telephone:909-790-3405
Telefax: 909-790-7596
District Director
District 8
California Department of Transportation
464 West 4th Street
San Bernardino, California 92401-1400
Telephone:909-383-4561
Telefax: 909-383-6899
Deputy Director
Habitat Conservation Division
California Department of Fish and Game
1416 Ninth Street, 13th Floor
Sacramento, California 95814
Telephone: 916-653-1070
Telefax: 916-653-3673
Regional Manager
Eastern Sierra and Inland Deserts Region
California Department of Fish and Game
4665 Lampson Ave. Suite J
Los Alamitos, California 90720
Telephone: 562430-7212
Telefax: 562-799-8427
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City Manager
City of Cathedral City
68-700 Avenida Lalo Guerrero
Cathedral City, California 92234
Telephone: 760-770-0372
Telefax: 760-770-0399
City Manager
City of Coachella
1515 6th Street
Coachella, California 92236
Telephone:760-398-3502
Telefax: 760-398-8117
City Manager
City of Desert Hot Springs
65950 Pierson Blvd.
Desert Hot Springs, California 92240
Telephone: 760-329-6411
Telefax: 760-251-2072
City Manager
City of Indian Wells
44-950 Eldorado Drive
Indian Wells, California 92210
Telephone:760-346-2489
Telefax: 760-346-0407
City Manager
City of Indio
100 Civic Center Mall
Indio, California 92201
Telephone:760-342-6580
Telefax: 760-342-6597
City Manager
City of La Quinta
78-495 Calle Tampico
La Quinta, California 92253
Telephone:760-777-7100
Telelax: 760-777-7101
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City Manager
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, California 92260
Telephone:760-346-0611
Telefax: 760-340-0574
City Manager
City of Palm Springs
3200 Tahquitz Canyon Way
Palm Springs, California 92263
Telephone: 760-323-8250
Telefax: 760-323-8207
City Manager
City of Rancho Mirage
69-825 Highway III
Rancho Mirage, California 92270
Telephone: 760-324-4511
Telefax: 760-324-8830
General Manager
Coachella Valley Water District
Highway 111 and Avenue 52
Coachella, California 92236
Telephone: 760-398-2651
Telefax: 760-398-3711
General Manager
Imperial Irrigation District
333 East Barioni Boulevard
Imperial, California 92251
Telephone: 760-339-9219
Telef'ax: 760-339-9414 or 760-339-9392
Chief Executive Officer
County of Riverside
County Administrative Center
P.O. Box 1605
Riverside, California 92502-1605
Telephone: 951-95 5-1100
Telefax: 951-955-1105
General Manager/Chief Engineer
Riverside County Flood Control
and Water Conservation District
1995 Market Street
Riverside, California 92501
Telephone:951-955-1200
Telefax: 951-788-9965
General Manager
Riverside County Regional Park and Open Space District
4600 Crestmore Road
Riverside, California 92519-3507
Telephone: 951-95 5-4310
Telefax: 951-955-4305
Chief Executive Officer
Riverside County Waste Resources Management District
14310 Frederick Street
Moreno Valley, California 92553
Telephone: 951-486-3200
Telefax: 951-486-3205
Deputy Operations Manager
United States Fish and Wildlife Service
California/Nevada Operations Office
2800 Cottage Way, Room W-2606
Sacramento, California 95825-1846
Telephone: 916-414-6464
Telef'ax: 916-414-6486
In addition to the above list, the following individuals will also be provided all notices as set
forth in this Section:
Chair
Coachella Valley Conservation Commission
73-710 Fred Waring Drive, Suite 200
Palm Desert, California 92260
Telephone:760-346-1127
Telefax: 760-340-5949
Chair
Coachella Valley Association of Governments
73-710 Fred Waring Drive, Suite 200
Palm Desert, California 92260
Telephone: 760-346-1127
Telefax: 760-340-5949
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Director
California Department of Parks
and Recreation
1416 Ninth Street, Room 1405
Sacramento, CA 95814
Telephone: 916-653-8380
Telefax: 916-657-3909
Board of Supervisors
County of Riverside
P.O. Box 1605
4080 Lemon Street, 5th Floor
Riverside, California 92502-1605
Telephone: 951-955-1050
Telefax: 9 51-95 5 -1071
Mayor
City of Cathedral City
68-700 Avenida Lalo Guerrero
Cathedral City, California 92234
Telephone:760-770-0342
Telefax: 760-770-0399
Mayor
City of Coachella
1515 6th Street
Coachella, California 92236
Telephone: 760-398-3502
Tele1'ax: 760-398-8117
Mayor
City of Indian Wells
44-950 Eldorado Drive
Indian Wells, California 92210
Telephone: 760-346-2489
Telefax: 760-346-0407
Mayor
City of Indio
100 Civic Center Mall
Indio, California 92201
Telephone: 760-342-6500
Telefax: 760-342-6597
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Mayor
City of La Quinta
78-495 Calle Tampico
La Quinta, California
Telephone:760-777-7030
Telefax: 760-777-7101
Mayor
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, California 92260
Telephone: 760-346-0611
Telef'ax: 760-340-0574
Mayor
City of Palm Springs
3200 Tahquitz Canyon Way
Palm Springs, California 92263
Telephone: 760-323-8200
Telefax: 760-322-8207
Mayor
City of Rancho Mirage
69-825 Highway 111
Rancho Mirage, California 92270
Telephone: 760-324-4511
Telefax:760-324-8830
Mayor
City of Desert Hot Springs
65950 Pierson Blvd.
Desert Hot Springs, California 92240
Telephone: 760-329-6411
Telefax: 760-251-2072
Field Supervisor
United States Fish and Wildlife Service
6010 Hidden Valley Road
Carlsbad, California 92009
Telephone:760-431-9440
Telefax: 760- 431-9618
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County Counsel
County of Riverside
3535 loth Street
Riverside, California 92501-3624
Telephone: 951-95 5-6301
Telefax: 951-955-6363
General Counsel
Office of the General Counsel
California Department of Fish and Game
1416 Ninth Street, 12th Floor
Sacramento, California 95814
Telephone: 916-654-3821
Telefax: 916-654-3805
27.5 Entire Agreement. This Agreement, together with the MSHCP and the Permits,
constitutes the entire Agreement among the Parties. This Agreement supersedes any and all
other agreements, either oral or in writing, among the Parties with respect to the subject matter
hereof and contains all of the covenants and agreements among them with respect to said
matters, and each Party acknowledges that no representation, inducement, promise of agreement,
oral or otherwise, has been made by any other Party or anyone acting on behalf of any other
Parry that is not embodied herein. This Agreement shall not be construed as if it had been
prepared by any one Party, but rather as if all Parties had prepared the Agreement.
27.6 Assignment or Transfer. This Agreement and each of its covenants and
conditions shall be binding on and inure to the benefit of the Parties and their respective
successors and assigns. Assignment or other transfer of the Permits shall be governed by the
Wildlife Agencies regulations in force at the time.
27.7 Defense. Upon request, the CDFG will, to the extent authorized by California
law, provide appropriate support to the Permittees in defending, consistent with the terns of the
MSHCP, lawsuits arising out of the Permittees' adoption of the MSHCP and/or this Agreement.
27.8 Attorneys' Fees. If any action at law or equity, including any action for
declaratory relief is brought to enforce or interpret the provisions of this Agreement, each Party
to the litigation shall bear its own attorneys' fees and costs, provided that attorneys' fees and costs
recoverable against the United States shall be governed by applicable federal law.
27.9 Elected Officials Not to Benefit. No member of, or delegate to, the California
State Legislature, the United States Congress, the Riverside County Board of Supervisors, or
City Council of the Permittees shall be entitled to any share or part of this Agreement or to any
benefit that may arise from it.
27.10 Availability of Funds. Implementation of this Agreement and the MSHCP by
the USFWS is subject to the requirements of the Anti -Deficiency Act and the availability of
appropriated funds. Nothing in this Agreement will be construed by the Parties to require the
obligation, appropriation, or expenditure of any money from the United States Treasury. The
IME
Parties acknowledge and agree that the USFWS will not be required under this Agreement to
expend any federal agency's appropriated funds unless and until an authorized official of that
agency affirmatively acts to commit to such expenditures as evidenced in writing.
Implementation of this Agreement and the MSHCP by the CDFG is subject to the
availability of appropriated funds. Nothing in this Agreement shall be construed by the Parties to
require the obligation, appropriation, or expenditure of any money from the Treasury of the State
of California. The Parties acknowledge and agree that the CDFG shall not be required under this
Agreement to expend any State appropriated funds unless and until an authorized official of that
agency affirmatively acts to commit such expenditure as evidenced in writing.
Implementation of this Agreement and the MSHCP by the CVCC, the County and
the Cities is subject to the availability of appropriated funds. Nothing in this Agreement will be
construed by the Parties to require the obligation, appropriation, or expenditure of any money
from the general funds of the County or Cities unless expressly authorized by the County Board
of Supervisors and/or appropriate City Councils. The obligations of the County, County Parks,
County Waste, County Flood Control, CVWD, and IID are limited to those specifically set forth
in the MSHCP, the Permits and this Agreement.
Implementation of this Agreement and the MSHCP by Caltrans is subject to the
availability of appropriated funds. Nothing in this Agreement shall be construed by the Parties to
require the obligation, appropriation, or expenditure of any money from the Treasury of the State
of California. The Parties acknowledge and agree that Caltrans shall not be required under this
Agreement to expend any State appropriated funds unless and until an authorized official of that
agency affirmatively acts to commit such expenditure as evidenced in writing.
27.11 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the United States and the State of California, as applicable.
27.12 Duplicate Originals. This Agreement may be executed in any number of
duplicate originals. A complete original of this Agreement shall be maintained in the official
records of each of the Parties hereto.
27.13 Relationship to the FESA, CESA, NCCP Act and Other Authorities. The
terms of this Agreement are consistent with and shall be governed by and construed in
accordance with FESA, CESA, the NCCP Act and other applicable state and federal law. In
particular, nothing in this Agreement is intended to limit the authority of the USFWS and CDFG
to seek penalties or otherwise fulfill its responsibilities under FESA, CESA and the NCCP Act.
Moreover, nothing in this Agreement is intended to limit or diminish the legal obligations and
responsibilities of the USFWS as an agency of the federal government or CDFG as an agency of
the State of California.
27.14 No Third Party Beneficiaries. Without limiting the applicability of rights
granted to the public pursuant to FESA, CESA, the NCCP Act or other applicable law, this
Agreement shall not create any right or interest in the public, or any member thereof, as a third
party beneficiary hereof, nor shall it authorize anyone not a Party to this Agreement to maintain a
suit for personal injuries or property damages under the provisions of this Agreement. The
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duties, obligations, and responsibilities of the Parties to this Agreement with respect to third
party beneficiaries shall remain as imposed under existing state and federal law.
27.15 References to Regulations. Any reference in this Agreement, the MSHCP, or
the Permits to any regulation or rule of the Wildlife Agencies shall be deemed to be a reference
to such regulation or rule in existence at the time an action is taken.
27.16 Applicable Laws. All activities undertaken pursuant to this Agreement, the
MSHCP or Permits must be in compliance with all applicable state and federal laws and
regulations.
27.17 Severability. In the event one or more of the provisions contained in this
Agreement is held invalid, illegal or unenforceable by any court of competent jurisdiction, such
portion shall be deemed severed from this Agreement and the remaining parts of this Agreement
shall remain in full force and effect as though such invalid, illegal, or unenforceable portion had
never been a part of this Agreement. The Permits are severable such that revocation of one does
not automatically cause revocation of the other.
27.18 Headings. The paragraph headings used in this Agreement are for the
convenience of the Parties and are not intended to be used as an aid to interpretation.
27.19 Due Authorization. The USFWS and CDFG each represent and warrant for the
benefit of the Permittees and their successors and assign that: 1) the execution and delivery of
this Agreement has been duly authorized and approved by all requisite action; 2) no other
authorization or approval, whether of governmental bodies or otherwise, will be necessary in
order to enable the USFWS and CDFG to enter into and comply with the terms of this
Agreement; and 3) the person executing this Agreement on behalf of the USFWS and CDFG has
the authority to bind the USFWS and CDFG respectively.
27.20 Faxed Signatures. Any Party may deliver its signed duplicate of this Agreement
to any other Party by facsimile transmission, and such delivery shall be deemed made and
completed upon receipt of such facsimile transmission by such other Party. Any Party delivering
a signed duplicate by facsimile transmission shall promptly send the duplicate original bearing
its original signature to such other Party, provided that a delay or failure to do so shall not negate
the effectiveness of the delivery made by the facsimile transmission.
27.21 Calculation of Dates and Dates of Performance. Where periods of time of
forty-five (45) days or more are used in this Agreement, calculation of dates of performance shall
be by calendar days, (e.g., where the text reads sixty (60) days, it shall be read to mean sixty (60)
calendar days). Where periods of time are used in this Agreement of less than forty-five (45)
days, calculation of date or performance shall be by business or working days. In the event that
the date of performance is not a business day, due to falling on a Saturday, Sunday, or observed
state or federal holiday, the date of performance shall be construed to be the next business day
subsequent to the calculated date of performance.
27.22 Further Instruments. Each of the Parties shall, promptly upon the request of the
others, execute, acknowledge, and deliver to the others any and all further instruments and shall
m
give such further assurances as are reasonably requested or appropriate to evidence or give effect
to the provisions of this Agreement.
IN WITNESS WHEREOF, THE PARTIES HERETO have executed this
Implementing Agreement to be in effect as of the date last signed below.
UNITED STATES FISH AND WILDLIFE SERVICE
Deputy Manager
United States Fish and Wildlife Service
California./Nevada Operations Office
Sacramento, California
CALIFORNIA DEPARTMENT OF FISH AND GAME
Deputy Director
Habitat Conservation Division
California Department of Fish and Game
Sacramento, California
CALIFORNIA DEPARTMENT OF FISH AND GAME
Regional Manager
Eastern Sierra and Inland Deserts Region
California Department of Fish and Game
Los Alamitos, California
CALIFORNIA DEPARTMENT OF FISH AND GAME
General Counsel (approval as to form)
California Department of Fish and Game
Sacramento, California
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Date:
COACHELLA VALLEY ASSOCIATION
OF GOVERNMENTS
Chair of the Executive Committee
Coachella Valley Association of Governments
Palm Desert, California
COACHELLA VALLEY CONSERVATION COMMISSION
Chair
Coachella Valley Conservation Commission
Palm Desert, California
COACHELLA VALLEY MOUNTAINS CONSERVANCY
Date:
Chair
Coachella Valley Mountains Conservancy
Palm Desert, California
RIVERSIDE COUNTY BOARD OF SUPERVISORS
Date:
Chair of the Board of Supervisors
Riverside County Board of Supervisors
Riverside, California
RIVERSIDE COUNTY FLOOD CONTROL
AND WATER CONSERVATION DISTRICT
Date:
Chair
Riverside County Flood Control
and Water Conservation District
Riverside, California
K-TZ
CALIFORNIA DEPARTMENT OF PARKS AND RECREATION
Director of State Parks
California Department of Parks and Recreation
Sacramento, California
RIVERSIDE COUNTY REGIONAL PARK
AND OPEN SPACE DISTRICT
Date:
Chair
Riverside County Regional Park and Open Space District
Riverside, California
RIVERSIDE COUNTY WASTE RESOURCES MANAGEMENT DISTRICT
Date:
Chair
Riverside County Waste Resources Management District
Riverside, California
CALIFORNIA DEPARTMENT OF TRANSPORTATION
Date:_
Director
California Department of Transportation
Sacramento, California
CITY OF CATHEDRAL CITY
Date:_
Mayor
City of Cathedral City
Cathedral City, California
WIR
CITY OF COACHELLA
Mayor
City of Coachella
Coachella, California
CITY OF DESERT HOT SPRINGS
Mayor
City of Desert Hot Springs
Desert Hot Springs, California
CITY OF INDIAN WELLS
Mayor
City of Indian Wells
Indian Wells, California
CITY OF INDIO
Mayor
City of Indio
Indio, California
CITY OF LA QUINTA
t/L
Mayor
City of La Quinta
La Quinta, California
RV PUBVACKERMAN\712462.1
Date:
Date:
Date:
CITY OF COACHELLA
Mayor
City of Coachella
Coachella, California
CITY OF DESERT HOT SPRINGS
Mayor
City of Desert Hot Springs
Desert Hot Springs, California
CITY OF INDIAN WELLS
Mayor
City of Indian Wells
Indian Wells, California
CITY OF INDIO
Mayor
City of Indio
Indio, California
CITY OF LA QUINTA
Mayor
City of La Quinta
La Quinta, California
70 -
Date:
Date:
Date:
CITY OF PALM DESERT
Mayor
City of Palm Desert
Palm Desert, California
CITY OF PALM SPRINGS
Mayor
City of Palm Springs
Palm Springs, California
CITY OF RANCHO MIRAGE
Mayor
City of Rancho Mirage
Rancho Mirage, California
IMPERIAL IRRIGATION DISTRICT
Imperial Irrigation District
Imperial, California
COACHELLA VALLEY WATER DISTRICT
Chair
Coachella Valley Water District
Coachella, California
71-
Date:
Date:
Date:
Date:
LIST OF EXHIBITS
COACHELLA VALLEY ASSOCIATION OF GOVERNMENTS
MSHCP IMPLEMENTING AGREEMENT
Exhibit A - Map of MSHCP
Exhibit B - Map of MSHCP Area
Exhibit C - List of Covered Species and Natural Communities
Exhibit D - Model Ordinance Adopting Local Development Mitigation
Fee
Exhibit E - Model Resolution Adopting MSHCP
Exhibit F - Model Memorandum of Understanding for the Cooperation
in Habitat Conservation Planning and Management for the
Coachella Valley Multiple Species Habitat Conservation
Plan/Natural Community Conservation Plan
Exhibit G - Model Certificate of Inclusion
Exhibit H - Model Conservation Easement
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Coachella Valley MSHCP/NCCP
Rgvre 1.1
Exhibit A
EXHIBIT `B"
Draft Coachella Valley Multiple Species Habitat Conservation Plan
and
Natural Community Conservation Plan
Figure 1-2: Plan Area
Exhibit B
ExHI IT "C"
LIST OF COVERED SPECIES AND NATURAL COMMUNITIES
I N V E RT E B RAT ES/INSECTS
Coachella Valley giant sand -treader cricket
acrobaenetes val um
Coachella Valley Jerusalem cricket
Steno elmatus cahuilaensis
FISH
Desert pupfish
Cyprinodon macularius
AMPHIBIANS
Arroyo toad
Bufo californicus
REPTILES
Desert tortoise
Go herus a assizii
Flat -tailed horned lizard
�hrynosoma mcallii
Coachella Valley fringe -toed lizard
Uma inomata
BIRDS
uma clapper rail
Rallus lon irostris yumanensis
California black rail
Laterallus 'amaicensis
Burrowing owl
thene cunicularia
Southwestern willow flycatcher
Em idonax traillli extimus
Crissal thrasher
Toxostoma crissale
Le Conte's thrasher
Toxostoma lecontei
Least Bell's vireo
Vireo bellii pusillus
Gray vireo
Vireo vicinior
Yellow warbler
Dendroica petechia brewsteri
Yellow -breasted chat
Icteria wens
Summer tanager
Iran a rubra
MAMMALS
Southern yellow bat
asiurus e a or xanthinus
Exhibit C — Page 1
Coachella Valley round -tailed ground squirrel
Spermophilus tereticaudus chlorus
MAMMALS Continued
Palm Springs pocket mouse
Peronathus lon imembris ban si
Peninsular bighorn sheep
Ovis canadensis nelsoni
PLANTS
Mecca aster
lorhiza cognate
Coachella Valley milkvetch
stra alus lenti inosus var. coachellae
Triple -ribbed milkvetch
stra alus trfcarinatus
Orocopia sage
Salvia greatae
Little San Bernardino Mountains linanthus
Linanthus maculatus or Gilia maculata
NATURAL COMMUNITIES
Active desert dunes
Stabilized and partially stabilized desert dunes
Active desert sand fields
Ephemeral desert sand fields
Stabilized and partially stabilized desert sand fields
Stabilized shielded desert sand fields
Mesquite hummocks
Sonoran creosote bush scrub
Sonoran mixed woody and succulent scrub
Mojave mixed woody scrub
Desert saltbush scrub
Desert sink scrub
Chamise chaparral
Red shank chaparral
Semi -desert chaparral
Interior live oak chaparral
Cismontane alkali marsh
Coastal and valley freshwater marsh
Southern arroyo willow riparian forest
Sonoran cottonwood -willow riparian forest
Mesquite bos ue
Desert dry wash woodland
Desert fan palm oasis woodland
Southern sycamore -alder riparian woodland
rrowweed scrub
Mojavean pinyon and juniper woodland
Peninsular juniper woodland and scrub
Exhibit C — Page 2
EXHIBIT f`D"
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF [ ] TO ESTABLISH A LOCAL
DEVELOPMENT MITIGATION FEE FOR FUNDING
THE PRESERVATION OF NATURAL
ECOSYSTEMS IN ACCORDANCE WITH THE
COACHELLA VALLEY MULTIPLE SPECIES
HABITAT CONSERVATION PLAN
WHEREAS, the City Council of the City of [ ] ("City") finds that the ecosystems of the
City, Coachella Valley and surrounding mountains located in central Riverside County, and the
vegetation communities and sensitive species they support are fragile, irreplaceable resources
that are vital to the general welfare of all residents;
WHEREAS, these vegetation communities and natural areas contain habitat value which
contributes to the City's and the region's environmental resources;
WHEREAS, special protections for these vegetation communities and natural areas must
be established to prevent future endangerment of the plant and animal species that are dependent
upon them;
WHEREAS, adoption and implementation of this Ordinance will help to enable the City
to achieve the conservation goals set forth in the Coachella Valley Multiple Species Habitat
Conservation Plan/Natural Community Conservation Plan ("MSHCP"), adopted by the City
Council on , 2005, to implement the associated Implementing Agreement
executed by the City Council on , 2005, and to preserve the ability of affected
property owners to make reasonable use of their land consistent with the requirements of
applicable laws, which could include the National Environmental Policy Act ("NEPA"), the
California Environmental Quality Act ("CEQA"), the Federal Endangered Species Act
("FESA"), the California Endangered Species Act ("CESA") and the California Natural
Community Conservation Planning Act ("NCCP Act");
WHEREAS, the purpose and intent of this Ordinance is to establish a Local
Development Mitigation Fee to assist in the maintenance of biological diversity and the natural
ecosystem processes that support this diversity; the protection of vegetation communities and
natural areas within the City, Coachella Valley and surrounding mountains located in central
Riverside County which are known to support threatened, endangered or key sensitive
populations of plant and wildlife species; the maintenance of economic development within the
City by providing a streamlined regulatory process from which development can proceed in an
orderly process; and the protection of the existing character of the City and the region through
the implementation of a system of reserves which will provide for permanent open space,
community edges and habitat conservation for species covered by the MSHCP;
WHEREAS, the findings set forth herein are based on the MSHCP and the studies
referenced therein, and the estimated acquisition costs for such property as set forth in the
MSHCP, a copy of which is on file in the City Clerk's office;
Exhibit D— Page 1
WHEREAS, pursuant to Article 11, Section 7 of the California Constitution, the City is
authorized to enact measures that protect the health, safety and welfare of its citizens;
WHEREAS, pursuant to Government Code sections 66000 et seq., the City is
empowered to impose fees and other exactions to provide necessary funding and public facilities
required to mitigate the negative effect of new development projects;
WHEREAS, on , 2005 the City Council took action on the MSHCP
and the associated Implementing Agreement, and made appropriate findings pursuant to CEQA;
and
WHEREAS, pursuant to Government Code sections 66016, 66017 and 66018, the City
has: (a) made available to the public, at least ten (10) days prior to its public hearing, data
indicating the estimated cost required to provide the facilities and infrastructure for which these
development fees are levied and the revenue sources anticipated to provide those facilities and
infrastructure; (b) mailed notice at least fourteen (14) days prior to this meeting to all interested
parties that have requested notice of new or increased development fees; and (c) held a duly
noticed, regularly scheduled public hearing at which oral and written testimony was received
regarding the proposed fees.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF [ ] DOES
ORDAIN AS FOLLOWS:
Ordinance No. __ and Chapter _, Section(s) _ of the City Code is hereby amended
in its entirety to read as follows:
SECTION 1. SHORT TITLE. This ordinance shall be known as the "Coachella Valley
Multiple Species Habitat Conservation Plan/Natural Community Conservation Plan Mitigation
Fee Ordinance."
SECTION 2. FINDINGS. City Council finds and determines as follows:
A. In order to implement the goals and objectives of the Coachella Valley Multiple
Species Habitat Conservation Plan/Natural Community Conservation Plan ("MSHCP") and to
mitigate the impacts caused by new development in the City, lands supporting species covered
by the MSHCP must be acquired and conserved.
B. A development mitigation fee (Fee) is necessary in order to supplement the
financing of the acquisition of lands supporting species covered by the MSHCP and to pay for
new development's fair share of this cost.
C. The appropriate source of funding for the costs associated with mitigating the
impacts of new development to the natural ecosystems and covered species within the City, as
identified in the MSHCP, is a Fee for residential, commercial and industrial development. The
amount of the Fee is determined by the nature and extent of the impacts from the development to
the identified natural ecosystems and the relative cost of mitigating such impacts.
Exhibit D— Page 2
D. The Fee set forth herein does not reflect the entire cost of the lands which need to
be acquired in order to implement the MSHCP and mitigate the impact caused by new
development. Additional revenues will be required from other sources. The City finds that the
benefit to each development project is greater than the amount of the Fee to be paid by that
project.
E. The MSHCP and Mitigation Fee Nexus Report, a copy of which is on file in the
City Clerk's office, provide the basis for the imposition of the Fee on new developments.
F. The use of the Fee to mitigate the impacts to the City's natural ecosystems and
covered species identified in the MSHCP which are impacted by new development are
apportioned relative to the type and extent of impacts caused by the development.
G. The costs of funding the proper mitigation for natural ecosystems and covered
species identified in the MSHCP which are impacted by new development are apportioned
relative to the type and extent of impacts caused by the development.
H. The facts and evidence provided to and considered by the City Council establish
that there is a reasonable relationship between the need for preserving the natural ecosystems and
covered species identified in the MSHCP, and the impacts to such natural ecosystems and
species created by the types of development on which the Fee will be imposed; and that there is a
reasonable relationship between the Fee's use and the types of development for which the Fee is
charged. This reasonable relationship is described in more detail in the MSHCP and Mitigation
Fee Nexus Report.
I. The fees collected pursuant to this Ordinance shall be used to finance the
acquisition of the natural ecosystems and covered species, as set forth in the MSHCP, are
reasonable and will not exceed the reasonably estimated total of these costs.
J. The Fees collected pursuant to this Ordinance shall be used to finance the
acquisition of lands and certain improvements necessary to implement the goals and objectives
of the MSHCP.
K. To ensure fair implementation of the development impact fees established in this
Ordinance, it may be necessary for the City to defer or waive such fees in special cases as may
be permitted in accordance with procedures and guidelines established by the Coachella Valley
Conservation Commission.
L. Even though second units on existing single family lots may also contribute to the
need for acquisition of lands necessary to implement the MSHCP, the City refrains from
imposing the Fee on such development at this time, and in this regard finds that second units: (1)
provide a cost effective means of serving development through the use of existing infrastructure,
as contrasted to requiring the construction of new costly infrastructure to serve development in
undeveloped areas; and (2) provide relatively affordable housing for low and moderate income
households without public subsidy.
SECTION 3. ADMINISTRATIVE RESPONSIBILITY. The of
the City shall be responsible for the administration of this Ordinance. Detailed administrative
Exhibit D— Page 3
procedures concerning the implementation of this Ordinance may be established and set forth in
a resolution adopted by the City Council.
SECTION 4. DEFINITIONS. As used in this Ordinance, the following terms shall
have the following meanings:
"City" means the City of [ ], California.
"City Council" means the City Council of the City of [ ], California.
"Certificate of Occupancy" means a certificate of occupancy issued by the City in
accordance with all applicable ordinances, regulations, and rules of the City and state law.
"Credit" means a credit allowed pursuant to Section 12 of this Ordinance, which may be
applied against the Fee paid.
"Development Project" means any project undertaken for the purpose of development
pursuant to the issuance of a building permit by the City pursuant to all applicable ordinances,
regulations, and rules of the City and state law.
"Final Inspection" means a final inspection of a project as defined by the building codes
of the City.
"Gross Acreage" means the total property area as shown on a land division map of
record, or described through a recorded legal description of the property. This area shall be
bounded by road right-of-way and/or legal property lines.
"Local Development Mitigation Fee" or "Fee" means the development impact fee
imposed pursuant to the provisions of this Ordinance.
"Multiple Species Habitat Conservation Plan" or "MSHCP" means the Coachella Valley
Multiple Species Habitat Conservation Plan/Natural Community Conservation Plan, adopted by
the City Council on 2005.
"Conservation Areas" has the same meaning and intent as such term is defined and
utilized in the MSHCP.
"Ordinance" means this Ordinance No. _ of the City of [ ], California.
"Project Area" means the area, measured in acres, from the adjacent road right-of-way
line to the limits of project improvements. Project Area includes all project improvements and
areas that are disturbed as a result of the project improvements on an owner's Gross Acreage,
including all areas depicted on the forms required to be submitted to the City pursuant to this
Ordinance and/or other applicable development ordinance or regulation of the City Except as
otherwise provided herein. The Project Area is the area upon which the project will be assessed
the Local Development Mitigation Fee.
"Residential Unit" means a building or portion thereof used by one family and containing
Exhibit D— Page 4
but one kitchen, which unit is designed or occupied for residential purposes, including single-
family dwelling, multiple -family dwellings, and mobile homes on permanent foundations, but
not including hotels and motels.
"Revenue" or 'Revenues" means any funds received by the City pursuant to the
provisions of this Ordinance for the purpose of defraying all or a portion of the cost of acquiring
and preserving vegetation communities and natural areas within the City and the region which
are known to support threatened, endangered or key sensitive populations of plant and wildlife
species.
"Coachella Valley Conservation Commission " means the governing body established
pursuant to the MSHCP that is delegated the authority to oversee and implement the provisions
of the MSHCP.
SECTION 5. LOCAL DEVELOPMENT MITIGATION FEE. To assist in providing
Revenue to acquire and conserve lands necessary to implement the MSHCP, a Mitigation Fee
shall be paid for each residential unit, Development Project or portion thereof to be constructed
within the City. Five categories of the Fee are defined and include: (1) residential units, density
less that 8.0 dwelling units per acre; (2) residential units, density between 8.1 and 14.0 dwelling
units per acre; (3) residential units, density greater than 14.1 dwelling unites per acre; (4)
commercial acreage; and (5) industrial acreage. Because there can be mixed traditional
commercial, industrial and residential uses within the same project, for Fee assessment purposes
only, the commercial or industrial acreage Fee shall be applied to the whole project based upon
the existing underlying zoning classification of the property at the time of issuance of a building
permit. The following Fee shall be paid for each Development Project to be constructed within
the City. The fees are calculated using an Equivalent Benefit Unit methodology:
• Residential, density less than 8.0 dwelling units per acre - $XXX per dwelling unit
• Residential, density between 8.1 and 14.0 dwelling units per acre - $XXX per dwelling
unit
• Residential, density greater than 14.1 dwelling units per acre - $XXX per dwelling unit
Commercial - $XXX per acre
Industrial - $XXX per acre
A. The amount of the Local Development Mitigation Fee for a commercial or
industrial development project required to be paid shall be based on the acreage to be developed
and shall be calculated on the basis of the Project Area, in accordance with the following:
1. The Project Area shall be determined by City staff based on the
subdivision map, plot plan, and other information submitted to or required by the City.
2. If the difference between the net acreage, as exhibited on the plot plan,
and the Project Area is less than one -quarter acre, the Fee shall be paid on the full gross acreage.
3. An applicant may elect, at his or her own expense, to have a Project Area
dimensioned, calculated, and certified by a registered civil engineer or licensed land surveyor.
The engineer or land surveyor shall prepare a wet -stamped letter of certification of the Project
Area dimensions and a plot plan exhibit thereto that clearly delineates the Project Area. Upon
Exhibit D— Page 5
receipt of the letter of certification and plot plan exhibit, the City shall calculate the Local
Development Mitigation Fee required to be paid based on the certified Project Area.
4. Where construction or other improvements on Project Area are prohibited
due to legal restrictions on the Project Area, such as Federal Emergency Management Agency
designated floodways or areas legally required to remain in their natural state, that portion of the
Project Area so restricted shall be excluded for the purpose of calculating the Local Development
Mitigation Fee.
SECTION 6. IMPOSITION OF THE LOCAL DEVELOPMENT MITIGATION
FEE. Notwithstanding any other provision of the City's Municipal Code, no permit shall be
issued for any Development Project except upon the condition that the Local Development
Mitigation Fee applicable to such Development Project has been paid.
SECTION 7. PAYMENT OF LOCAL DEVELOPMENT MITIGATION FEE.
A. The Local Development Mitigation Fee shall be paid in full at the time a
certificate of occupancy is issued for the residential unit or development project or upon final
inspection, whichever occurs first. No final inspection shall be made, and no certificate of
occupancy shall be issued, prior to full payment of the Fee. However, this section shall not be
construed to prevent payment of the Fee prior to the issuance of an occupancy permit or final
inspection.
B. The Local Development Mitigation Fee shall be assessed one time per lot or
parcel, except in cases of changes in land use. The Fee required to be paid when there is a
change in land use shall be reduced by the amount of any previously paid fee for that property.
No refunds shall be provided for changes in land use to a lower fee category. It shall be the
responsibility of the applicant to provide documentation of any previously paid Fee.
C. The Local Development Mitigation Fee for commercial and industrial
development projects shall be paid in its entirety for the Project Area and shall not be prorated.
D. The Local Development Mitigation Fee required to be paid under this Ordinance
shall be the Fee in effect at the time of payment.
E. There shall be no deferment of the Fee beyond final inspection or issuance of
certificate(s) of occupancy.
F. Notwithstanding anything in the City's Municipal Code, or any other written
documentation to the contrary, the Local Development Mitigation Fee shall be paid whether or
not the Development Project is subject to conditions of approval by the City imposing the
requirement to pay the Fee.
G. If all or part of the Development Project is sold prior to payment of the Local
Development Mitigation Fee, the Project shall continue to be subject to the requirement to pay
the Fee as provided herein.
Exhibit D— Page 6
H. For development projects which the City does not require a final inspection or
issuance of a certificate of occupancy, the Fee shall be paid prior to any use or occupancy.
I. For purposes of this Ordinance, congregate care residential facilities and
recreational vehicle parks shall pay the commercial acreage Fee.
SECTION S. REFUNDS. There shall be no refund of all or part of any Local
Development Mitigation Fee paid under this Ordinance, except in cases of overpayment or
miscalculation of the applicable Fee. Only in cases of overpayment or miscalculation of the Fee
will the person or entity that paid the Local Development Mitigation Fee be entitled to a refund.
SECTION 9. ACCOUNTING AND DISBURSEMENT OF COLLECTED LOCAL
DEVELOPMENT MITIGATION FEES.
A. All fees paid pursuant to this Ordinance shall be deposited, accounted for, and
expended in accordance with section 66006 of the Government Code and all other applicable
provisions of law.
B. Subject to the provisions of this section, all Fees collected pursuant to this
Ordinance shall be remitted to the Coachella Valley Conservation Commission at least quarterly,
and will be expended solely for the purpose of acquiring and preserving vegetation communities
and natural areas within the City and the region which support species covered in the MSHCP in
accordance with the provisions of the MSHCP.
C. The City may recover the costs of administering the provisions of this Ordinance
using the Revenues generated by the Fees, in an amount and subject to the rules and regulations
established by the Coachella Valley Conservation Commission.
SECTION 10. EXEMPTIONS. The following types of construction shall be exempt
from the provisions of this Ordinance:
A. Reconstruction of a residential unit or commercial or industrial building damaged
or destroyed by fire or other natural causes.
B. Rehabilitation or remodeling to an existing residential unit, commercial or
industrial building, and additions to an existing residential unit or commercial or industrial
building.
C. Secondary residential units, constructed on developed residential property and
meeting all state and City requirements for such units.
D. Existing improvements that are converted from an existing permitted use to a
different permitted use, provided that no additional area of the property is disturbed as a result of
such conversion.
E. Development within a Project Area that is currently or has been previously
improved.
Exhibit D— Page 7
F. Construction of a family residential unit upon property wherein a mobile -home,
installed pursuant to an installation permit, was previously located prior to the effect date of this
Ordinance.
G. Guest dwellings as defined in Section _ of the Municipal Code.
H. Additional single family residential units located on the same parcel pursuant to
the provisions of any agricultural zoning classifications set forth in
I. Kennels and Catteries established in connection with an existing single family
residential unit and as defined in Sections of
SECTION 11. FEE CREDITS AND WAIVERS. The City may grant to owners or
developers of real property, a Credit against the Fee that would otherwise be charged pursuant to
this Ordinance, for the dedication of land determined to be necessary for inclusion in the
MSHCP Conservation Area. The amount of the Credit granted shall be determined by an
estimate of the fair market value of the land dedicated. Any Credit granted by the City shall be
given in stated dollar amounts only. An applicant for a proposed development may apply for
Credit to reduce the amount of the Fee required to be paid prior to approval of the development.
Any Credit granted and the amount of the Fee to be paid shall be included as a condition of
approval for the development. If an applicant has received the development approval from the
City and has not previously applied for a Credit to reduce the amount of the Fee required to be
paid, an applicant may apply for such Credit prior to issuance of a grading permit for the
development. Any Credit granted and the amount of the Fee required to be paid shall be
included as a condition of approval on the grading permit issued for the development.
SECTION 12. SEVERABILITY. This Ordinance and the various parts, sections, and
clauses thereof, are hereby declared to be severable. If any part, sentence, paragraph, section, or
clause is adjudged unconstitutional or invalid, the remainder of this Ordinance shall not be
affected thereby. If any part, sentence, paragraph, section, or clause of this Ordinance, or its
application to any person entity is adjudged unconstitutional or invalid, such unconstitutionality
or invalidity shall affect only such part, sentence, paragraph, section, or clause of this Ordinance,
or person or entity; and shall not affect or impair any of the remaining provision, parts,
sentences, paragraphs, sections, or clauses of this Ordinance, or its application to other persons
or entities. The City Council hereby declares that this Ordinance would have been adopted had
such unconstitutional or invalid part, sentence, paragraph, section, or clause of this Ordinance
not been included herein; or had such person or entity been expressly exempted from the
application of this Ordinance.
Exhibit D— Page 8
SECTION 13. EFFECTIVE DATE. This Ordinance shall take effect immediately
upon issuance of the appropriate permits authorizing take in connection with the MSHCP by the
U.S. Fish and Wildlife Service and California Department of Fish and Game. However, in no
event shall this Ordinance take effect prior to sixty (60) days after the date of its adoption.
PASSED, APPROVED, AND ADOPTED, this _ day of 2004 by
the following:
ATTEST:
City Clerk
Mayor
Exhibit D— Page 9
EXHIBIT "F"
MODEL MEMORANDUM OF UNDERSTANDING FOR
THE COOPERATION IN HABITAT CONSERVATION
PLANNING AND MANAGEMENT FOR THE
COACHELLA VALLEY MULTIPLE SPECIES HABITAT
CONSERVATION PLAN/NATURAL COMMUNITY
CONSERVATION PLAN
[Insert Date]
I. PREAMBLE
The Coachella Valley Conservation Commission ("CVCC") shares a common interest
with the California Department of Fish and Game ("CDFG"), the United States Fish and Wildlife
Service ("USFWS") and the [insert party], that are signatories to this aarPPmenr ("Parr;es_'_Lin_.
sustaining the integrity of regional biological and natural reso
economic values they support. The Coachella Valley is part of
many biological and natural resource systems that were once ci r t
Southern California are now rare. The challenge of mitigating i
falling on inland Southern California, including Riverside Cc
dramatic increase in development pressures, yet still maintair
valuable habitat and endangered, threatened and rare species.
The Coachella Valley Multiple Species Habitat Co
designed to meet the challenge of rapid urbanization by pr
significant habitat and the preservation of endangered, tin
coordinated and efficient manner. The MSHCP Plan Area a
million acres. The MSHCP will serve as a Habitat Consert
section 10(a)(1)(b) of the Federal Endangered Species Act i
Community Conservation Plan ("NCCP") under the NCCP I
Game Code §§ 2800 et seq.).
Instead of piecemeal mitigation efforts, the MSHCP will provide large contiguous blocks
of habitat to more effectively ensure the survival of targeted endangered, threatened and rare
species. Area developers will benefit from the assurance provided by the USFWS and CDFG, as
well as a streamlined process for complying with applicable federal and state mandates. The
citizens of Riverside County and the participating Cities will further benefit from this planned
growth because it will create new economic opportunities, preserve important open space, and
encourage continued recreational activities while maintaining the area's quality of life.
H. PURPOSE OF THE AGREEMENT
Efforts to coordinate conservation programs among local, state, and federal agencies in
California are well -established. In 1991, The Agreement on Biological Diversity created an
executive council on biological diversity. Cooperation among the agreement's forty members,
including federal, state, and local representatives, exemplifies California's commitment to
cooperative ecosystem management. This Memorandum of Understanding ("MOU") builds on
Exhibit F— Page 1
this example by establishing a partnership between the CVCC, CDFG, USFWS and the [insert
party] to cooperate in the implementation of the MSHCP. This MOU encourages the exchange
of information regarding Existing Conservation Lands, defined by the MSHCP as a subset of the
MSHCP Reserve System lands consisting of lands in public or private ownership and managed
for Conservation and/or open space values that contribute to the Conservation of Covered
Species, as generally depicted in Figure 4-2 of the MSHCP. Further, this MOU provides an
agreement for jointly managing the MSHCP Conservation Area and Public/Quasi-Public
("PQP") lands for the benefit of Covered Species. Finally, this MOU provides a method for
resolving disputes between Parties to this MOU.
I11. AUTHORITY
This MOU does not modify or supercede existing statutory direction of the signatories.
IV. POLICIES AND PRINCIPLES
This MOU recognizes the following set of policies and principles:
A. [Party] agrees to coordinate with the other Parties to this MOU regarding lands
within the MSHCP Plan Area.
1. The CVCC, USFWS, and/or CDFG agree to provide any available digital
files and hard copy maps of such lands to the same upon request. [Party]
likewise agrees to provide the CVCC, USFWS and CDFG with any
available digital files and hard copy maps of the same.
2. [Party] further agrees to provide any further information they possess
regarding types of vegetation and quality of vegetation on the lands they
manage within the MSHCP Plan Area to the CVCC, USFWS and CDFG
or the MSHCP Reserve Oversight Management Committee ('BMOC').
B. [Party] agrees to participate fully as a member of the RMOC as set forth in
Section 6.1.3 of the MSHCP.
C. [Party] agrees to work with the other Parties to this MOU and the RMOC to
ensure the development of a coordinated approach for managing existing
conservation lands in a cooperative manner consistent with the goals and
objectives of the MSHCP.
D. If any land management prescriptions of [Party] are found to be inconsistent with
MSHCP objectives and requirements, the Parties will work collaboratively to
resolve the inconsistencies.
1. The Parties will make every effort to expeditiously resolve any
disagreements. If a resolution cannot be accomplished promptly during
regularly scheduled meetings and conference calls, a further attempt to
reach resolution will be promptly attempted in a interim meeting or
conference call dedicated to the purpose of resolving the disagreement.
Exhibit F— Page 2
2. If, after completing an interim meeting or conference call, the Parties
cannot reach agreement on any issue, including but not limited to
management of PQP lands within the MSHCP Plan Area, all Parties agree
to elevate the decision to successively higher levels within each
organization until consensus is reached.
V. MODIFICATIONS
The MOU is to remain in effect until modified by the Parties in writing; it is negotiable at
the option of any of the Parties.
IN WITNESS WHEREOF, the Parties hereto have executed this Memorandum of
Understanding on the date first herein written above.
UNITED STATES DEPARTMENT OF COACHELLA VALLEY CONSERVATION
INTERIOR, FISH AND WILDLIFE SERVICE COMMISSION
Bv:
By:
Deputy Manager Executive Director
California/Nevada Operations Office
CALIFORNIA DEPARTMENT OF FISH [TO BE INSERTED]
AND GAME
By: By:
Deputy Director
Habitat Conservation Division
Exhibit F— Page 3
EXHIBIT "G"
MODEL CERTIFICATE OF INCLUSION
The United States Fish and Wildlife Service and the California Department of Fish and
Game have issued Permits pursuant to the federal Endangered Species Act and the California
Natural Community Conservation Planning Act (collectively 'Permits") authorizing "Take" of
certain species in accordance with the terms and conditions of the Permits, the Coachella Valley
Multiple Species Habitat Conservation Plan ("MSHCP") and the associated Implementing
Agreement. Under the Permits, certain activities by [appropriate party or entity] are authorized
to "Take" certain species, provided all applicable terms and conditions of the Permits, the
MSHCP and the associated Implementing Agreement are met.
As the owner/operator of the property depicted on Exhibit "1," attached hereto and
incorporated herein by this reference, you are entitled to the protection of the Permits for the
...--- —A .,, f4-4: — — moo+ F .+1, :.. R-l.a,:+ ,1 " ,,.:H, .o..—++- .,,— To1— -f — :Aon+: F. oA :„
EXHIBIT "H"
MODEL CONSERVATION EASEMENT
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
State of California )
Wildlife Conservation Board )
1807 13th Street, Suite 103 )
Sacramento, CA 95814 )
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 STATE OF CALIFORNIA
("Grantee"), acting by and through its Department of Fish and Game, a subdivision of the
California Resources Agency, with reference to the following facts:
RECITALS
A. Grantor is the sole owner in fee simple of certain real property in the County of
Riverside, State of California, designated Assessor's Parcel Number and
more particularly described in Exhibit "A" attached hereto
reference (the "Property");
and incorporated herein by this
B. The 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 Property provides high quality habitat for [list plant and/or animal species]
and contains [list habitats; native and/or non-native];
D. The Department of Fish and Game ("DFG") has jurisdiction, pursuant to
California Fish and Game Code section 1802, over the conservation, protection, and
management of fish, wildlife, native plants and the habitat necessary for biologically sustainable
populations of those species, and the Department of Fish and Game is authorized to hold
easements for these purposes pursuant to Civil Code section 815.3, Fish and Game Code section
1348, and other provisions of California law;
Exhibit H — Page 1
RVPUB\MO\662308
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
extent set forth in the Federal Endangered Species Act, 16 U.S.C. § 1531, et seq. ("FESA"), and
other federal laws; and
F. This Conservation Easement provides mitigation for certain impacts of [describe
project] located in the City of [ ], County of Riverside, State of California, pursuant to
[California Natural Community Conservation Planning Act Permit] dated [ ] ("NCCP Permit"),
Permit # dated [ ], issued by USFWS pursuant to section 10(a) of the FESA ("Section
10(a) Permit"), and the corresponding Implementing Agreement and Coachella Valley Multiple
Species Habitat Conservation Plan/Natural Community Conservation Plan ("MSHCP") dated [ ].
The Section 10(a) Permit, the NCCP Permit, the Implementing Agreement, and the MSHCP are
all incorporated herein by this reference. Information regarding these documents may be
obtained from the USFWS and the DFG, for each respective permit, and from Coachella Valley
Conservation Commission ("CVCC") regarding the Implementing Agreement and the MSHCP.
Contact information for USFWS and DFG is provided in the notice provision in section 13 of
this Conservation Easement. The CVCC may be contacted at 73-710 Fred Waring Drive, Suite
200, Palm Desert, California 92260, Telephone: 760-346-1127.
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 sections 815, et seq.,
Grantor hereby voluntarily grants and conveys to Grantee a conservation easement in perpetuity
over the Property.
1. Purpose. The purpose of this Conservation Easement is to ensure the Property will be
retained forever in a natural condition and to prevent any use of the Property that will impair or
interfere with the conservation values of the Property. Grantor intends that this Conservation
Easement will confine the use of the Property to such activities, including, without limitation,
those involving the preservation and enhancement of native species and their habitat in a manner
consistent with the habitat conservation purposes of this Conservation Easement.
2. Grantee's Rights. To accomplish the purposes of this Conservation Easement, Grantor
hereby grants and conveys the following rights to Grantee, and to USFWS as a third party
beneficiary hereof, or their designee:
(a) To preserve and protect the conservation values of the Property;
(b) To enter upon the Property at reasonable times in order to monitor
Grantor's compliance with and to otherwise enforce the terms of this Conservation Easement,
and for scientific research and interpretive purposes by Grantee or its designees, provided that
Grantee shall not unreasonably interfere with Grantor's authorized use and quiet enjoyment of
the Property;
Exhibit H — Page 2
RVPUBWO\662308
(c) To enter upon the Property at reasonable times to cant' 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 Property that is inconsistent with
the purposes of this Conservation Easement and to require the restoration of such areas or
features of the Property that may be damaged by any act, failure to act, or any use that is
inconsistent with the purposes of this Conservation Easement;
(e) All mineral, air and water rights necessary to protect and to sustain the
biological resources of the Property; and
(f) All present and future development rights.
3. Prohibited Uses. Any activity on or use of the Property inconsistent with the purposes of
this Conservation Easement is prohibited. Without limiting the generality of the foregoing, the
following uses by Grantor, Grantor's agents, and third parties, are expressly prohibited:
(a) Unseasonal watering; use of fertilizers, pesticides, biocides, herbicides or
other agricultural chemicals; weed abatement activities; 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 agricultural activity of any kind;
(d) Recreational activities including, but not limited to, horseback riding,
biking, hunting or fishing, except as may be specifically permitted under this Conservation
Easement;
(e) Commercial or industrial uses;,
(f) Any legal or de facto division, subdivision or partitioning of the Property;
(g) Construction, reconstruction or placement of any building, billboard or
sign, or any other structure or improvement of any kind;
(h) Depositing or accumulation of soil, trash, ashes, refuse, waste, biosolids or
any other materials;
(i) Planting, introduction or dispersal of non-native or exotic plant or animal
species;
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 Property;
Exhibit H — Page 3
RVPUB\MO\662308
(k) Altering the surface or general topography of the Property, including
building of roads;
(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; prevention
or treatment of disease; or control of non-native or exotic plants; and
(m) Manipulating, impounding or altering any natural water course, body of
water or water circulation on the Property, and activities or uses detrimental to water quality,
including but not limited to, degradation or pollution of any surface or subsurface waters.
4. Grantor's Duties. Grantor shall undertake all reasonable actions to prevent the unlawful
entry and trespass by persons whose activities may degrade or harm the conservation values of
the Property. In addition, Grantor shall undertake all necessary actions to perfect Grantee's rights
under Section 2 of this Conservation Easement, including but not limited to, Grantee's water
rights.
5. Reserved Rights. Grantor reserves to itself, and to its personal representatives, heirs,
successors, and assigns, all rights accruing from its ownership of the Property, including the right
to engage in or to permit or invite others to engage in all uses of the Property that are consistent
with the purposes of this Conservation Easement.
6. Grantee's Remedies. 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 of such violation and demand in writing the cure of such violation. If Grantor fails to
cure the violation within fifteen (15) days after receipt of written notice and demand from
Grantee, or if the cure reasonably requires more than fifteen (15) days to complete and Grantor
fails to begin the cure within the 15-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 terns 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 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 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 the USFWS and DFG. Without
limiting Grantor's liability therefore, Grantee may apply any damages recovered to the cost of
undertaking any corrective action on the Property. If Grantee, in its sole discretion, determines
that circumstances require immediate action to prevent or mitigate damage to the conservation
values of the Property, Grantee may pursue its remedies under this Section 6 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
Exhibit H — Page 4
RVPUBVO\M2306
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 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 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.
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 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.
6.3 Acts Beyond Grantor's Control. Nothing contained in this Conservation Easement
shall be construed to entitle Grantee to bring any action against Grantor for any injury to or
change in the 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 Property resulting from such causes; or (b) acts by Grantee or its employees.
6.4 Department of Fish and Game and USFWS Right of Enforcement. All rights and
remedies conveyed to Grantee under this Conservation Easement Deed shall extend to and are
enforceable by the Department of Fish and Game and USFWS. These rights are in addition to,
and do not limit, the rights of enforcement under [insert title of permits/Agreement described in
Recital F, above].
7. Fence Installation and Maintenance. Grantor shall install and maintain a fence reasonably
satisfactory to Grantee and USFWS around the Conservation Easement area to protect the
conservation values of the Property, including but not limited to wildlife corridors.
8. Access. This Conservation Easement does not convey a general right of access to the
public.
Exhibit H — Page 5
RVPUB\MO\662308
9. 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
Property. Grantor agrees that Grantee shall have no duty or responsibility for the operation or
maintenance of the Property, the monitoring of hazardous conditions thereon, or the protection of
Grantor, the public or any third parties from risks relating to conditions on the Property. Grantor
remains solely responsible for obtaining any applicable governmental permits and approvals for
any activity or use permitted by this Conservation Easement Deed, and any activity or use shall
be undertaken in accordance with all applicable federal, state, local and administrative agency
statutes, ordinances, rules, regulations, orders and requirements.
9.1 Taxes; No Liens. Grantor shall pay before delinquency all taxes, assessments,
fees, and charges of whatever description levied on or assessed against the 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 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 Property.
9.2 Hold Harmless. Grantor shall hold harmless, protect and indemnify Grantee and
its directors, officers, employees, agents, contractors, 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 Property, regardless of cause, unless due
solely to the negligence of Grantee or any of its employees; (b) the obligations specified in
Sections 4, 9, and 9.1; 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 for services of the Attorney General in defending the action or
proceeding.
9.3 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.
10. Assignment. This Conservation Easement is transferable, but Grantee or any successor in
interest shall give Grantor, USFWS, and DFG, if applicable, 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 only in a form reasonably approved in writing by both DFG
and USFWS in favor of an entity or organization authorized to acquire and hold conservation
easements pursuant to Civil Code section 815.3. Grantee or any successor in interest shall require
the assignee to agree in writing that the conservation purposes that this grant is intended to
advance shall continue to be fulfilled by such assignee in accordance with the NCCP Permit and
Exhibit H — Page 6
RVPUB\MO\662308
the Section 10(a) Permit and shall require the assignee to record the assignment in the county
where the Property is located.
11. 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 DFG.
12. Subsequent Transfers. Grantor agrees to incorporate the terms of this Conservation
Easement in any deed or other legal instrument by which Grantor divests itself of any interest in
all or any portion of the Property, including, without limitation, a leasehold interest. Grantor
further agrees to give written notice to Grantee and USFWS of the intent to transfer any interest
at least thirty (30) days prior to the date of such transfer. Grantee 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. The
failure of Grantor or Grantee to perform any act provided in this section shall not impair the
validity of this Conservation Easement or limit its enforceability in any way.
13. 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 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: Department of Fish and Game
Region _
[Region's address]
Attn: Regional Manager
With a copy to: 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 Office
Attn: Field Supervisor
6010 Hidden Valley Road
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.
14. Amendment. This Conservation Easement may be amended by Grantor and Grantee only
by mutual written agreement. Any such amendment shall be consistent with the purposes of this
Exhibit H — Page 7
RVPUMM0\662308
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.
15. 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 to effect 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.
(c) 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.
(d) 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 an amendment in
accordance with Section 13.
(e) No Forfeiture. Nothing contained herein will result in a forfeiture or
reversion of Grantor's title in any respect.
(f) 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 Property.
(g) Termination of Rights and Obligations. A party's rights and obligations
under this Conservation Easement terminate upon transfer of the party's interest in the
Conservation Easement or Property, except that liability for acts or omissions occurring prior to
transfer shall survive transfer.
(h) 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.
(i) No Hazardous Materials Liability. Grantor represents and warrants that it
has no knowledge of any release or threatened release of Hazardous Materials (defined below)
Exhibit H — Page 8
RVPUB`MO\662308
in, on, under, about or affecting the Property. Without limiting the obligations of Grantor under
Section 9.2, Grantor agrees to indemnify, protect and hold harmless the Indemnified Parties
(defined in Section 9.2) against any and all Claims (defined in Section 9.2) arising from or
connected with any Hazardous Materials present, alleged to be present, or otherwise associated
with the Property at any time, except any Hazardous Materials placed, disposed or released by
Grantee, its employees or agents. 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 for services of the
Attorney General in defending the action or proceeding. 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:
(1) 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
(2) The obligations or liabilities of a person described in 42
U.S.C. section 9607(a)(3) or (4); or
(3) The obligations of a responsible person under any
applicable Environmental Laws; or
(4) The right to investigate and remediate any Hazardous
Materials associated with the Property; or
(5) Any control over Grantor's ability to investigate, remove,
remediate or otherwise clean up any Hazardous Materials associated with the 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, 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 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. Grantor represents, warrants and covenants to Grantee
that Grantor's activities upon and use of the Property will comply with all Environmental Laws.
0) Warranty. Grantor represents and warrants that there are no outstanding
mortgages, liens, encumbrances or other interests in the Property which have not been expressly
Exhibit H — Page 9
RVPUBNO\M2308
subordinated to this Conservation Easement Deed, and that the Property is not subject to any
other conservation easement.
(k) Additional Easements. Grantor shall not grant any additional easements,
rights of way or other interests in the 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 Property, without first obtaining the written consent of Grantee.
Grantee 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 Property. This Section 14(k) shall not prohibit transfer of a fee or
leasehold interest in the Property that is subject to this Conservation Easement Deed and
complies with Section 11.
(1) 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.
IN WITNESS WHEREOF Grantor has executed this Conservation Easement Deed the day
and year first above written.
GRANTOR: Approved as to form:
BY:
General Counsel
State of California
NAME:
Department of Fish and Game
TITLE:
BY:
DATE:
CERTIFICATE OF ACCEPTANCE
This is to certify that the interest in real property conveyed by the Conservation Easement Deed
by dated , to the State of California, grantee, acting by
and through its Department of Fish and Game (the 'Department"), a governmental agency (under
Government Code section 27281), is hereby accepted by the undersigned officer on behalf of the
Exhibit H —Page 10
RVPUB\MO\662308
Department, pursuant to authority conferred by resolution of the California Fish and Game
Commission on
GRANTEE:
STATE OF CALIFORNIA, by and through its
DEPARTMENT OF FISH AND GAME
Bv:
Title:
Authorized Representative
Date:
RVPUB\708400.1
Exhibit H — Page 11
RVPUB\MO\662308
(This page is intentionally blank)
1
P.O. Box 1504
LA QUINTA, CALIFORNIA 92247-1504
78-495 CALLE TAMPICO (760) 7 7 7 - 7 0 0 0
LA QUINTA, CALIFORNIA 92253 FAX (760) 777-7101
May 31, 2006
Mr. John M. Wohlmuth, Executive Director
CVAG
73-710 Fred Waring Drive, Suite 200
Palm Desert, CA 92260
Re: Coachella Valley Multiple Species Habitat Conservation Plan
Dear Mr. Wohlmuth:
Please find enclosed twenty-five (25) signature pages signed by the Mayor on behalf of the City
of La Quinta entering into the Implementation Agreement for the above referenced Plan. I
understand that once all signatures are obtained, we will receive a fully executed original signed
in counterpart.
Thank you for your assistance and please do not hesitate to contact me should you require any
further documentation.
Sincerely,
JUNE S. GREEK, MMC
City Clerk
Enclosure
cc: Douglas R. Evans, Community Development Director
�� J
FIRST AMENDMENT TO THE IMPLEMENTING AGREEMENT
for the
COACHELLA VALLEY MULTIPLE SPECIES HABITAT CONSERVATION
PLAN/NATURAL COMMUNITY CONSERVATION PLAN
by and between
CITY OF DESERT HOT SPRINGS, COACHELLA VALLEY CONSERVATION
COMMISSION, UNITED STATES FISH AND WILDLIFE SERVICE AND CALIFORNIA
DEPARTMENT OF FISH AND GAME
1.0 PARTIES
This First Amendment to the lmplementing Agreement ("Amended Agreement"),
made and entered into as of this CpAii day of .twit' , 2010 by and among the
City of Desert Hot Springs (together with its successors and assigns, the "City") the
Coachella Valley Conservation Commission, the United States Fish and Wildlife Service,
and the California Department of Fish and Game (all, collectively, the "Parties"), defines
the Parties' roles and responsibilities and provides a common understanding of the
actions that will be undertaken by the City of Desert Hot Springs to implement the
Coachella Valley Multiple Species Habitat Conservation Plan/Natural Community
Conservation Plan ("MSHCP" or "Plan"). The United States Fish and Wildlife Service and
the California Department of Fish and Game may be referred to collectively herein as the
"Wildlife Agencies."
2.O RECITALS
This Amended Agreement is entered into with regard to the fallowing facts:
WHEREAS, an Implementing Agreement ("Agreement") was entered into by and
among the Coachella Valley Association of Governments, Coachella Valley
Conservation Commission, County of Riverside, Riverside County Flood Control and
Water Conservation District, Riverside County Regional Park and Open Space District,
Riverside County Waste Resources Management District, City of Cathedral City, City of
Coachella, City of Indian Wells, City of Indio, City of La Quinta, City of Palm Desert, City
of Palm Springs, City of Rancho Mirage, Coachella Valley Water District, Imperial
Irrigation District, Coachella Valley Mountains Conservancy, California Department of
Fish and Game, California Department of Transportation, California Department of Parks
and Recreation, and United States Fish and Wildlife Service, and became effective on
October 1, 20W and
WHEREAS, the City of Desert Hot Springs is a California municipal corporation
located within the Coachella Valley of Riverside County, California; and
WHEREAS, the Coachella Valley Conservation Commission ("CVCC") is a public
agency and a joint powers authority, created pursuant to the provisions of Government
Code Section 55M and
WHEREAS, the California Department of Fish and Game ('CDFG") is a
department of the California Resources Agency with jurisdiction over the conservation,
protection, restoration, enhancement and management of fish, wildlife, native plants and
habitat necessary for biologically sustainable populations of those species under the
California Endangered Species Act (California Fish and Game Code sections 2050 et
seq.), the California Native Plant Protection Act (California Fish and Game Code
sections 1900 et seq.), the California Natural Community Conservation Planning Act
{California Fish and Game Code sections 2800 et seq.) and other relevant state laws:
and
WHEREAS, the United States Fish and Wildlife Service ("USFVVS") is an agency
of the United States Department of the Interior and 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 extent set forth in the Federal Endangered Species Act (16 U.S.C.
1531 et seq.) ("FESA") and other relevant federal laws; and
WHEREAS, the City of Desert Hot Springs has been approved by the Riverside
County Local Agency Formation Commission ("'LAFCO") for the annexation of the
"'Desert Hot Springs 1-10 Community Annexation Area" of approximately 4,000 acres
within the County of Riverside's jurisdictional boundaries, composed of Annexation 36
(LAFCO 2009-09-5) and Annexation 37 (LAFCO 2009-08-5), generally bound by the 1-10
fre-eway to the south, Palm Drive to the east, 15" Avenue to the north, and Indian
Canyon Drive to the west, as specified in the rnap and legal description attached to this
Amendment as Exhibit 1 , and
WHEREAS, the LAFCO approval of the City of Desert Hot Springs' I-110
Community Annexation Area annexation is conditional on this fully executed Amended
Agreement: and
WHEREAS, the City of Desert :Hot Springs desires to fulfill the obligations of the
MSHCP to become a Permittee of the Plan for the Desert Hot Springs 1-10 Community
Annexation Area, and is, furthermore, entering into this Agreement to memorialize the
City of Desert Hot Springs' agreement to fulfill these obligations; and
WHEREAS, the Parties desire the City, as a Perrnittee to implement the IVISl-ICF1.
AGREEMENT
THEREFORE, the Parties do hereby understand and agree as follows:
3.0 INCORPORATION OF THE AGREEMENT
The Agreement and each of its provisions are intended to be, and by this
reference are, incorporated herein.
4.0 CITY OF DESERT HOT SPRINGS
The City of Desert Hot Springs agrees to the terms and conditions of the
Agreement set forth in section 30 above,
5.0 TAKE ALLOCATION
The Take Allocation for the 1-1 0 Community Annexation Area within the Upper
Mission Creek/Big Morongo Canyon and Willow Hole Conservation Areas
available to the City of Desert Hot Springs is allocated for this project according
to an agreement between Riverside County and the City of desert Hot Springs,
dated July_, 2010_
6.0 AGREEMENT PROVISIONS AMENDED
The following provisions of the Agreement are amended as set forth below:
2.17 "Cities" means collectively the Cities of Cathedral City, Coachella,
Desert Hot Springs, Indian Wells, Indio, La Quinta, Palm Desert, Palm Springs,
and Rancho Mirage.
27.4 Notices. Any notice permitted or required by this Agreement shall be in
writing, delivered personally, by overnight mail, or by United States mail, certified
and postage prepaid, return receipt requested to the persons listed below and
addressed as follows, or at such other address as any Party may from time to
time specify to the other Parties in writing. Notices may be delivered by facsimile
or other electronic means, provided that they are also delivered personally or by
overnight or certified snail. Notices shall be transmitted so that they are received
within the specified deadlines. Notice delivered via certified mail, return receipt
requested, shall be deemed given five (5) days after deposit in the United States
mail. Notices delivered personally shall be deemed given on the date they are.
delivered. Notices delivered via overnight delivery shall be deemed given on the
next business day after deposit with the overnight mail delivery service. The
CVCC shall maintain a list of individuals responsible for ensuring Plan
compliance for each of the Parties which may change, The following are the
individuals currently responsible for ensuring Plan compliance:
City Manager
City of Desert Hot Springs
65-950 Pierson Boulevard
Desert Hot Springs, California 92240
In addition to the above list, the following individuals will also be provided all
notices as set forth in this Section. -
Mayor
City of Desert Hot Springs
65-950 Pierson Boulevard
Desert Hot Springs„ California 92240
7.0 OTHER PROVISIONS TO REMAIN IN EFFECT
Except for the amended provisions as set forth herein, all other provisions of the
Agreement shall remain in full force and effect, and shall govern the action of the parties
hereto.
't-0 OTHER PROVISIONS TO REMAIN IN EFFECT
Except for the amended provisions as set fortis herein, all other provisions of the
Agreement shall remain in full force and effect, and shall govern the action of the parties
hereto.
8.0 EFFECTIVE DATE
This Amended Agreement shall become effective on the date that it is executed
by all of the Parties.
IN WITNESS WHEREOF, THE PARTIES HERETO have executed this First
Amendment to the lmplementing Agreement to be in effect as of the date last signed
below.
Dated: ii �3 W' � UNITE L STATES FISH AND WILDLIFE SERVICE
Deputy Regional Director
United Stars Fish and Wildlife Service
Pacific Southwest Region
Sacramento, California
Dated: Z # CALIFORNIA DEPARTMENT OF FISH AND GAME
Deputy Director �
Habitat Conservation Division
California Department of Fish and Game
Sacramento, California
Dated-. CALIFORNIA DEPARTMENT OF FISH AND GAME
Regional Manag
Eastern Sierra and Inland Deserts Region
California Department of Fish and Garne
Las Alamitos, California
4
Dated:
Attest:
Exe u e Director
Dated: -7, 10
Attest:
ity CI k
COACHELLA VALLEY CONSERVATION COMMISSION
Chair
Coachella Valley Conservation Commission
Palm Desert, California
CITY OF DESERT HOT SPRINGS
Citf/Desert Hot Springs
Dert Hot Springs, California
5
Dated:
Attest:
Exec t e Director
Dated:
Attest:
City Clerk
COACHELLA VALLEY CONSERVATION COMMISSION
Chair
Coachella Valley Conservation Commission
Palm Desert, California
CITY OF DESERT HOT SPRINGS
Mayor
City of desert Hot Springs
Desert Hot Springs, California
5
SECOND AMENDMENT TO THE IMPLEMENTING AGREEMENT
for the
COACHELLA VALLEY
MULTIPLE SPECIES HABITAT CONSERVATION PLAN/
NATURAL COMMUNITY CONSERVATION PLAN
by and between
COACHELLA VALLEY ASSOCIATION OF GOVERNMENTS, COACHELLA
VALLEY CONSERVATION COMMISSION, COUNTY OF RIVERSIDE,
RIVERSIDE COUNTY FLOOD CONTROL AND WATER CONSERVATION
DISTRICT, RIVERSIDE COUNTY WASTE RESOURCES MANAGEMENT
DISTRICT, RIVERSIDE COUNTY REGIONAL PARKS AND OPEN SPACE
DISTRICT, CITY OF CATHEDRAL CITY, CITY OF COACHELLA, CITY OF
DESERT HOT SPRINGS, CITY OF INDIAN WELLS, CITY OF INDIO, CITY
OF LA QUINTA, CITY OF PALM DESERT, CITY OF PALM SPRINGS, CITY
OF RANCHO MIRAGE, COACHELLA VALLEY WATER DISTRICT,
IMPERIAL IRRIGATION DISTRICT, MISSION SPRINGS WATER DISTRICT,
COACHELLA VALLEY MOUNTAINS CONSERVANCY, CALIFORNIA
DEPARTMENT OF FISH AND WILDLIFE, CALIFORNIA DEPARTMENT OF
TRANSPORTATION, CALIFORNIA DEPARTMENT OF PARKS AND
RECREATION, AND UNITED STATES FISH AND WILDLIFE SERVICE
TABLE OF CONTENTS
Pa e s
1 PARTIES.......................................................................................................................1
2 DEFINED TERMS........................................................................................................1
2.1
Acceptable Biologist..........................................................................................1
2.2
Acquisition and Funding Coordinating Committee...........................................1
2.3
Adaptive Management.......................................................................................1
2.4
Additional Conservation Lands.........................................................................1
2.5
Allowable Uses..................................................................................................1
2.6
Annual Report(s)................................................................................................1
2.7
Area Plan............................................................................................................2
2.8
Biological Corridor............................................................................................2
2.9
California Department of Fish and Game ("CDFW").......................................2
2.10
California Department of Parks and Recreation ("State Parks")
.......................2
2.11
California Department of Transportation ("Caltrans")......................................2
2.12
California Endangered Species Act("CESA")..................................................2
2.13
California Environmental Quality Act("CEQA").............................................2
2.14
Candidate Species..............................................................................................2
2.15
Certificate of Inclusion......................................................................................2
2.16
Changed Circumstances.....................................................................................2
2.17
Cities..................................................................................................................2
2.18
Coachella Valley Association of Governments("CVAG")...............................2
2.19
Coachella Valley Conservation Commission ("CVCC")..................................3
-1-
2.20 Coachella Valley Fringe -toed Lizard Habitat Conservation
Plan ("CVFTL HCP").......................................................................................3
2.21
Coachella Valley Mountains Conservancy("CVMC").....................................3
2.22
Complementary Conservation...........................................................................3
2.23
Conservation......................................................................................................3
2.24
Conservation Areas............................................................................................3
2.25
Conservation Goal(s).........................................................................................3
2.26
Conservation Level............................................................................................3
2.27
Conservation Objective(s).................................................................................3
2.28
Conservation Strategy........................................................................................3
2.29
Conserved Habitat..............................................................................................3
2.30
Core Habitat.......................................................................................................4
2.31
County................................................................................................................4
2.32
County Flood Control........................................................................................4
2.33
County Parks......................................................................................................4
2.34
County Waste.....................................................................................................4
2.35
Covered Activities.............................................................................................4
2.36
Covered Species.................................................................................................4
2.37
Critical Habitat...................................................................................................4
2.38
Development......................................................................................................4
2.39
Discretionary Project.........................................................................................4
2.40
Effective Date....................................................................................................4
2.41
Emergency.........................................................................................................4
2.42
Endangered Species...........................................................................................5
2.43
Essential Ecological Processes..........................................................................5
2.44
Essential Habitat................................................................................................5
2.45
Existing Conservation Lands.............................................................................5
2.46
Existing Uses.....................................................................................................5
2.47
Feasible..............................................................................................................5
2.48
Federal Endangered Species Act ("FESA")......................................................5
2.49
Habitat................................................................................................................5
2.50
HabiTrak............................................................................................................5
2.51
Implementing Agreement ("IA").......................................................................5
2.52
Independent Science Advisors ("ISA").............................................................5
2.53
Joint Project Review Process.............................................................................5
2.54
Land Manager....................................................................................................5
2.55
Land Use Adjacency Guidelines........................................................................6
2.56
Legal Instrument................................................................................................6
2.57
Linkage..............................................................................................................6
2.58
Listed Species....................................................................................................6
2.59
Local Development Mitigation Fee...................................................................6
2.60
Local Permittees.................................................................................................6
2.61
Major Amendments...........................................................................................6
2.62
Management Program........................................................................................6
2.63
Migratory Bird Treaty Act ("MBTA")..............................................................6
2.64
Migratory Bird Treaty Act ("MBTA") Special Purpose
PurposePermit...................................................................................................6
2.65
Minor Amendments...........................................................................................6
2.66
Mitigation Lands................................................................................................6
2.67
Monitoring Program...........................................................................................7
2.68
Monitoring Program Administrator ("MPA")...................................................7
2.69
Monitoring Report(s).........................................................................................7
2.70
MSHCP..............................................................................................................7
2.71
MSHCP Reserve System...................................................................................7
2.72
NCCP Act..........................................................................................................7
2.73
NCCP Permit.....................................................................................................7
2.74
NEPA.................................................................................................................7
2.75
Non -Listed Species............................................................................................7
2.76
No Surprises Assurances....................................................................................7
2.77
Operation and Maintenance Activities("O&M")..............................................7
2.78
Other Conserved Habitat....................................................................................7
2.79
Participating Special Entity................................................................................8
2.80
Parry and Parties................................................................................................8
2.81
Permit(s).............................................................................................................8
2.82
Permittees...........................................................................................................8
2.83
Plan....................................................................................................................8
2.84
Plan Area............................................................................................................8
2.85
Planning Agreement...........................................................................................8
2.86
Plan Participants.................................................................................................8
2.87
Private Conservation Land.................................................................................8
-1V-
2.88
Reserve Lands....................................................................................................8
2.89
Reserve Management Oversight Committee ("RMOC")..................................8
2.90
Reserve Management Unit ("RMU")................................................................8
2.91
Reserve Management Unit Plan ("RMUP")......................................................9
2.92
Reserve System..................................................................................................9
2.93
Reserve System Assembly.................................................................................9
2.94
Rough Step.........................................................................................................9
2.95
Rough Step Analysis Unit..................................................................................9
2.96
Scientific Advisory Committee ("SAC")...........................................................9
2.97
Section 10(a) Permit..........................................................................................9
2.98
Special Provisions Area.....................................................................................9
2.99
Species Conservation Goal(s)............................................................................9
2.100
State Assurances................................................................................................9
2.101
State Permittees..................................................................................................9
2.102
Take....................................................................................................................9
2.103
Take Authorization............................................................................................9
2.104
Third Party Take Authorization.........................................................................9
2.105
Threatened Species..........................................................................................10
2.106
Unforeseen Circumstances...............................................................................10
2.107
United States Fish and Wildlife Service("USFWS")......................................10
2.108
Wildlife Agencies............................................................................................10
3 RECITALS..................................................................................................................10
4 PURPOSES..................................................................................................................12
-v-
5
INCORPORATION OF THE MSHCP.......................................................................13
6
CONSERVATION STRATEGY................................................................................13
7
MSHCP RESERVE SYSTEM ASSEMBLY..............................................................14
7.1 Overview..........................................................................................................14
7.2 Contribution of Existing Conservation Lands.................................................14
7.3 Complementary Conservation.........................................................................15
7.4 Contribution of Additional Conservation Lands..............................................15
7.5 Review of Development Proposals in Conservation Areas .............................15
7.6 Reserve Assembly Accounting........................................................................15
8
MSHCP RESERVE SYSTEM MANAGEMENT REQUIREMENTS .......................16
8.1 Overview..........................................................................................................16
8.2 Management Activities....................................................................................16
8.3 Management Program......................................................................................16
9.0
MSHCP RESERVE SYSTEM MONITORING REQUIREMENTS ..........................16
9.1 Monitoring Program.........................................................................................16
9.2 Monitoring Program Administrator.................................................................16
9.3 Monitoring Reporting Requirements...............................................................16
10
REPORTING REQUIREMENTS...............................................................................16
10.1 Annual Reporting.............................................................................................16
10.2 Certificate of Reports.......................................................................................17
11
MSHCP IMPLEMENTATION STRUCTURE..........................................................18
11.1 Permittee Implementation Mechanisms...........................................................18
11.1.1 The Cities.............................................................................................18
-vi-
11.1.2
The County...........................................................................................19
11.1.3
County Flood Control..........................................................................19
11.1.4
County Parks........................................................................................19
11.1.5
County Waste.......................................................................................19
11.1.6
CVCC...................................................................................................19
11.1.7
CVAG..................................................................................................19
11.1.8
CVMC..................................................................................................19
11.1.9
Caltrans................................................................................................20
11.1.10 State Parks..........................................................................................20
11.1.11
CVWD...............................................................................................20
11.1.12
IID......................................................................................................20
11.1.13
MSWD...............................................................................................24
11.2 Organizational Structure..................................................................................20
11.2.1
Overview..............................................................................................20
11.2.2
CVCC Organization.............................................................................20
A. Overview..................................................................................20
B. Duties and Responsibilities......................................................20
11.2.3
Acquisition and Funding Coordinating Committee .............................20
11.2.4
Joint Project Review Process...............................................................21
11.2.5
CVCC Executive Director...................................................................21
A. Selection...................................................................................21
B. Duties and Responsibilities......................................................21
11.2.6
Reserve Management Oversight Committee.......................................21
A. Formation and Representation.................................................21
B. Duties and Responsibilities......................................................21
11.2.7 Reserve Management Unit Committees..............................................22
11.2.8 Land Manager......................................................................................22
11.2.9 Monitoring Program Administrator.....................................................22
11.2.10 MSHCP Reserve Management Unit Plan..........................................22
11.3
Changed Circumstances...................................................................................22
11.3.1 General Terms......................................................................................22
11.3.2 Permittees-Initiated Response to Changed Circumstances ..................23
11.3.3 Wildlife Agency -Initiated Response to Changed
Circumstances......................................................................................23
11.3.4 Condemnation of Lands Providing Conservation Benefits .................23
11.3.5 New Listings of Species Not Covered by the MSHCP........................23
11.4
Annexation and Deannexation of Lands..........................................................24
11.5
Incorporation of New Cities within MSHCP Boundaries................................24
11.6
Growth -Inducing Effects.................................................................................25
11.7
Participating Special Entity..............................................................................25
11.7.1 Take Authorization for Participating Special Entities .........................25
11.7.2 Grant of Take Authorization to Participating Special Entity...............25
11.7.3 Requirements for Participating Special Entities..................................26
12 FUNDING OF THE MSHCP......................................................................................26
12.1
Local Obligations.............................................................................................26
12.1.1 Local Permittee Additional Conservation Lands Obligations .............26
12.1.2 Administration Costs...........................................................................27
12.1.3 Local Permittee Monitoring and Management Obligations.................27
12.2 Local Funding Sources....................................................................................27
12.2.1 Local Development Mitigation Fees....................................................27
12.2.2 Transportation and Other Regional Infrastructure Project
Contributions........................................................................................27
12.2.3 Landfill Tipping Fees...........................................................................28
12.2.4 Eagle Mountain Landfill Environmental Mitigation Trust
Fund.....................................................................................................28
12.2.5 Additional Funding..............................................................................28
12.3 Annual Evaluation of Funding.........................................................................28
13 PERMITTEES' TAKE AUTHORIZATION AND OBLIGATIONS .........................28
13.1 Permittees' Take Authorization........................................................................28
13.2 County and Cities Obligations.........................................................................28
13.3 CVCC Obligations...........................................................................................30
13.4 CVAG Obligations...........................................................................................31
13.5 County Flood Control Obligations..................................................................31
13.6 County Parks Obligations................................................................................32
13.7 County Waste Obligations...............................................................................33
13.8 CVWD Obligations..........................................................................................33
13.9 IID Obligations................................................................................................34
13.10 Caltrans Obligations.........................................................................................35
13.11 State Parks Obligations....................................................................................36
13.12 CVMC Obligations..........................................................................................36
13.13 MSWD Obligations..........................................................................................42
14 USFWS OBLIGATIONS AND ASSURANCES........................................................37
14.1
Take Authorization for Covered Activities......................................................37
14.2
USFWS Findings - Covered Species...............................................................37
14.3
Section 10(a) Permit Coverage........................................................................37
14.4
Implementation Assistance..............................................................................37
14.5
Assurances Regarding MSHCP.......................................................................38
14.6
Take Authorization for Newly Regulated Covered Species; Savings
Provision..........................................................................................................38
14.7
Changes in the Environmental Laws...............................................................38
14.8
Section 7 Consultations....................................................................................38
14.9
Critical Habitat Designation for Covered Species...........................................39
14.10
Future Recovery Plans.....................................................................................39
14.11
No Surprises Assurances and Unforeseen Circumstances...............................40
14.11.1 No Surprises Assurances....................................................................40
14.12
Migratory Bird Treaty Act...............................................................................41
14.13
Management of Land.......................................................................................41
15 CDFW OBLIGATIONS AND ASSURANCES.........................................................42
15.1
Issuance of NCCP Permit................................................................................42
15.2
NCCP Permit Findings....................................................................................42
15.3
State Assurances..............................................................................................42
15.4
Implementation Assistance..............................................................................43
15.5
Fully Protected Species....................................................................................43
15.6
Changes in the Environmental Laws...............................................................43
-x-
15.7
Consultations by CDFW..................................................................................43
15.8
Management of Land.......................................................................................44
16
RELATIONSHIP TO OTHER EXISTING HABITAT CONSERVATION
PLANS, NCCP PERMITS AND SECTION 2081 PERMITS....................................44
16.1
General.............................................................................................................44
16.2
Coachella Valley Fringe -Toed Lizard Take Authorization .............................44
17
THIRD PARTY TAKE AUTHORIZATION.............................................................44
17.1
Authorization...................................................................................................44
17.2
Timing of Take Authorization.........................................................................45
17.3
Effect of MSHCP Amendments on Third Parties............................................45
17.4
Effect of Revocation or Suspension of Permits on Third Parties....................45
17.5
Effect of No Surprises Assurances on Third Parties........................................46
17.6
Retention of Enforcement Authority Over Third Parties.................................46
18
COOPERATIVE EFFORT..........................................................................................46
19
TERM
..........................................................................................................................46
19.1
Effective Date..................................................................................................46
19.2
Term of the Agreement....................................................................................46
19.3
Term of the Permits.........................................................................................46
19.4
Extension of the Permit....................................................................................47
19.5
Permanent Preservation...................................................................................47
20
MODIFICATIONS AND AMENDMENTS TO THE MSHCP.................................47
20.1
Clerical Changes..............................................................................................47
20.2
Land Use Changes...........................................................................................47
20.3
Adaptive Management Changes......................................................................47
20.4
Minor Amendments.........................................................................................47
20.4.1 List of Minor Amendments..................................................................48
20.4.2 Minor Amendments not Requiring Wildlife Agencies
Concurrence.........................................................................................48
20.4.3 Minor Amendments Requiring Wildlife Agencies
Concurrence.........................................................................................49
20.4.4 Procedure.............................................................................................49
20.5
Major Amendments.........................................................................................50
20.5.1 List of Major Amendments..................................................................50
20.5.2 Procedure.............................................................................................50
20.6
Like Exchanges in Conservation Areas...........................................................51
21 TERMINATION OF PERMITS..................................................................................51
21.1
Termination in General....................................................................................51
21.2
Continuing Obligations....................................................................................51
21.3
Final Accounting..............................................................................................51
21.4
Dissolution of the CVCC.................................................................................52
22 WITHDRAWAL OF PERMITTEE(S)........................................................................52
22.1
Withdrawal in General.....................................................................................52
22.2
Mitigation Responsibilities..............................................................................52
22.3
Termination of Permittee Take Authorization.................................................52
22.4
Evaluation of Remaining Permits....................................................................52
23 REMEDIES AND ENFORCEMENT.........................................................................53
23.1
Remedies in General........................................................................................53
23.1.1 No Monetary Damages.......................................................................53
23.2
Default..............................................................................................................53
23.2.1 Notice and Opportunity to Cure Default.............................................53
23.3
Injunctive and Temporary Relief.....................................................................54
23.4
Limitation and Extent of Enforceability..........................................................54
23.5
Revocation or Suspension of the Permits........................................................54
23.6
Informal Meet and Confer Process for Disputes Concerning Covered
Activities, State Streambed Alteration Agreements, Federal 404
Permits, and ESA Section 7 Consistency Consultation...................................55
23.7
Continuation of Take Authorization after Revocation, Suspension or
Permittee Withdrawal......................................................................................56
24
FORCE
MAJEURE.....................................................................................................56
25
LEGAL
AUTHORITY OF THE USFWS...................................................................57
26
LEGAL
AUTHORITY OF THE CDFW.....................................................................57
27
MISCELLANEOUS PROVISIONS............................................................................57
27.1
Response Times...............................................................................................57
27.2
No Partnership.................................................................................................57
27.3
Nullification of Agreement..............................................................................57
27.4
Notices.............................................................................................................57
27.5
Entire Agreement.............................................................................................63
27.6
Assignment or Transfer....................................................................................64
27.7
Defense............................................................................................................64
27.8
Attorneys' Fees.................................................................................................64
27.9
Elected Officials Not to Benefit.......................................................................64
27.10
Availability of Funds.......................................................................................64
27.1 1
Governing Law................................................................................................65
27.12
Duplicate Originals..........................................................................................65
27.13
Relationship to the FESA, CESA, NCCP Act and Other Authorities.............65
27.14
No Third Party Beneficiaries...........................................................................65
27.15
References to Regulations................................................................................65
27.16
Applicable Laws..............................................................................................65
27.17
Severability......................................................................................................65
27.18
Headings..........................................................................................................65
27.19
Due Authorization............................................................................................66
27.20
Faxed Signatures..............................................................................................66
27.21
Calculation of Dates and Dates of Performance..............................................66
27.22
Further Instruments..........................................................................................66
- xlv -
1. PARTIES
This Second Amendment to the Implementing Agreement ("Agreement"), made and
entered into as of this day of 11 2015, by and among the Coachella Valley
Association of Governments, Coachella Valley Conservation Commission, County of Riverside,
Riverside County Flood Control and Water Conservation District, Riverside County Regional
Parks and Open Space District, Riverside County Waste Resources Management District, City of
Cathedral City, City of Coachella, City of Desert Hot Springs, City of Indian Wells, City of Indio,
City of La Quinta, City of Palm Desert, City of Palm Springs, City of Rancho Mirage, Coachella
Valley Water District, Imperial Irrigation District, Mission Springs Water District, Coachella
Valley Mountains Conservancy, California Department of Transportation, California Department
of Parks and Recreation (together with their successors and assigns collectively, the "Permittees"),
California Department of Fish and Wildlife and United States Fish and Wildlife Service
(collectively, the "Parties"), defines the Parties' roles and responsibilities and provides a common
understanding of the actions that will be undertaken to implement the Coachella Valley Multiple
Species Habitat Conservation Plan/Natural Community Conservation Plan ("MSHCP" or "Plan").
The United States Fish and Wildlife Service and the California Department of Fish and Wildlife
may be referred to collectively herein as the "Wildlife Agencies."
2. DEFINED TERMS
Terms used in this Agreement and specifically defined in the Federal Endangered Species
Act, California Endangered Species Act, the California Natural Community Conservation
Planning Act or the MSHCP shall have the same meaning when utilized in this Agreement, unless
this Agreement expressly provides otherwise.
The following terms used in this Agreement shall have the meanings set forth below:
2.1 "Acceptable Biologist" means a biologist whose
name is on a list maintained by CVCC of biologists who are
acceptable to CVCC, CDFW, and USFWS for purposes of
conducting surveys of Covered Species.
2.2 "Acquisition and Funding Coordinating
Committee" means a committee formed by the CVCC that provides
input on local funding priorities and Additional Conservation Land
acquisitions.
2.3 "Adaptive Management" means to use the results of
new information gathered through the monitoring program of the
Plan and from other sources to adjust management strategies and
practices to assist in providing for the Conservation of Covered
Species.
2.4 "Additional Conservation Lands" means Conserved
Habitat that will contribute to Reserve System Assembly as
described in Section 4.2.2 of the MSHCP.
1
2.5 "Allowable Uses" means uses allowed within the
MSHCP Reserve System, as defined in Section 7.3.2 of the
MSHCP.
2.6 "Annual Report(s)" means the report(s) prepared
pursuant to the requirements of Section 6.4 of the MSHCP.
2.7 "Area Plan" means a community planning area
defined in the County of Riverside General Plan. Four County of
Riverside Area Plans are located within the MSHCP Plan Area.
2.8 'Biological Corridor" means the wildlife movement
area that is constrained by existing development, freeways, or other
impediments. [See also "Linkage"]
2.9 "California Department of Fish and Wildlife
("CDFW") means a department of the California Resources
Agency.
2.10 "California Department of Parks and Recreation
("State Parks")" means a department of the California Resource
Agency.
2.11 "California Department of Transportation
("C a] trans")" means a department of the California Business,
Transportation, and Housing Agency.
2.12 "California Endangered Species Act ("CESA")
means California Fish and Game Code, Section 2050 et seq. and all
rules, regulations and guidelines promulgated there under, as
amended.
2.13 "California Environmental Quality Act ("CEQA")"
means the California Public Resources Code, Section 21000 et seq.
and all guidelines promulgated there under, as amended. For the
MSHCP, CVAG shall be the Lead Agency under CEQA, as defined
under state CEQA Guidelines Section 15367.
2.14 "Candidate Species" means both (1) a species
formally noticed by the California Fish and Game Commission as
under review for listing as threatened or endangered, or a species
for which the Fish and Game Commission has published a notice
of proposed regulation to add a species as threatened or
endangered, and (2) a species which the USFWS has identified as
being a candidate for listing, but for which development of a listing
regulation is precluded by other higher priority listing activities.
2
2.15 "Certificate of Inclusion" means the document
attached as Exhibit "H" to this Agreement that would be required
to be executed prior to a Participating Special Entity receiving Take
Authorization pursuant to Section 11.7 of this Agreement or for
other Covered Activities, as appropriate.
2.16 "Changed Circumstances" means changes in
circumstances affecting a Covered Species or geographic area
covered by the MSHCP that can reasonably be anticipated by the
Parties and that can reasonably be planned for in the MSHCP.
Changed Circumstances and the planned responses to those
circumstances are more particularly described in Section 6.8.3 of
the MSHCP. Changed Circumstances do not include Unforeseen
Circumstances.
2.17 "Cities" means the cities of Cathedral City,
Coachella, Desert Hot Springs, Indian Wells, Indio, La Quinta,
Palm Desert, Palm Springs and Rancho Mirage, collectively.
2.18 "Coachella Valley Association of Governments
("CVAG")" means a joint powers authority that functioned as Lead
Agency for the preparation of the MSHCP.
2.19 "Coachella Valley Conservation Commission
("CVCC")" means a joint powers authority formed by the Local
Permittees to provide primary policy direction for implementation
of the MSHCP, as set forth in Section 6.1.1 of the MSHCP, and
Section 11.2.2 of this Agreement.
2.20 "Coachella Valley Fringe -toed Lizard Habitat
Conservation Plan ("CVFTL HCP")" means the CVFTL HCP in
the Plan area, dated April 21, 1986, more particularly described in
Section 16.2 of this Agreement.
2.21 "Coachella Valley Mountains Conservancy
("CVMC")" means a state agency within the California Resources
Agency.
2.22 "Complementary Conservation" means the land
projected to be acquired in the Conservation Areas for
Conservation purposes independent of, but compatible with, the
MSHCP as described in Section 4.2.1 of the MSHCP.
2.23 "Conservation" means to use, and the use of,
methods and procedures within the MSHCP Reserve System and
within the Plan Area as set forth in the MSHCP Plan, that are
necessary to bring any species to the point at which the measures
provided pursuant to FESA and the California Fish and Game Code
3
are no longer necessary. However, Permittees will have no duty to
enhance, restore, or revegetate MSHCP Reserve System lands
unless required by the MSHCP, this Agreement, or agreed to
through implementation of the Plan.
2.24 "Conservation Areas" means a system of lands
described in Section 4.3 of the MSHCP that provides Core Habitat
and Other Conserved Habitat for the Covered Species, conserves
natural communities, conserves Essential Ecological Processes,
and secures Biological Corridors and Linkages between major
Habitat areas. There are 21 Conservation Areas from which the
MSHCP Reserve System will be assembled.
2.25 "Conservation Goal(s)" means a broad statement of
intent that describes how the Plan will accomplish the protection of
Core Habitat, Essential Ecological Processes, Biological Corridors,
and Linkages in the MSHCP Reserve System to ensure that the
Covered Species are adequately conserved. Conservation Goals are
also designed to ensure the persistence of natural communities.
2.26 "Conservation Level" means a numerical
designation, as described in Section 2.4 of the MSHCP, assigned to
all land within the Plan Area.
2.27 "Conservation Objective(s)" means measurable
statements of actions or measures that will lead to attainment of the
Conservation Goals.
2.28 "Conservation Strategy" means the overall
approach to assure Conservation of Covered Species within the
Plan Area.
2.29 "Conserved Habitat" means land that is permanently
protected and managed for the benefit of the Covered Species under
the institutional arrangements that provide for its ongoing
management, and under the legal arrangements that prevent its
conversion to other uses.
2.30 "Core Habitat" means the areas identified in the
Plan for a given species that are composed of a Habitat patch or
aggregation of Habitat patches that (1) are of sufficient size to
support a self-sustaining population of that species, (2) are not
fragmented in a way to cause separation into isolated populations,
(3) have functional Essential Ecological Processes, and (4) have
effective Biological Corridors and/or Linkages to other Habitats,
M
where feasible, to allow gene flow among populations and to
promote movement of large predators.
2.31 "County" means the County of Riverside.
2.32 "County Flood Control' means the Riverside
County Flood Control and Water Conservation District.
2.33 "County Parks" means the Riverside County
Regional Parks and Open Space District.
2.34 "County Waste" means the Riverside County Waste
Resources Management District.
2.35 "Covered Activities" means certain activities
carried out or conducted by Permittees, Participating Special
Entities, Third Parties Granted Take Authorization and others
within the MSHCP Plan Area, as described in Section 7 of the
MSHCP, that will receive Take Authorization under the Section
10(a) Permit and the NCCP Permit, provided these activities are
otherwise lawful.
2.36 "Covered Species" means the species for which
Take Authorization is provided through the Permits issued in
conjunction with this Agreement. These species are discussed in
Section 9 of the MSHCP, and listed in Exhibit "C" to this
Agreement.
2.37 "Critical Habitat" means Habitat for species listed
under FESA that has been designated pursuant to Section 4 of
FESA and identified in 50 C.F.R., Sections 17.95 and 17.96.
2.38 "Development" means the uses to which land shall
be put, including construction of buildings, structures,
infrastructure and all associated alterations of the land.
2.39 "Discretionary Project" means a proposed project
requiring discretionary action by a Permittee, as that term is used
in CEQA and defined in state CEQA Guidelines Section 15357,
including issuance of a grading permit for County projects.
2.40 "Effective Date" means the date on which this
Agreement takes effect, as set forth in Section 19.1 of this
Agreement.
2.41 "Emergency" means a sudden, unexpected
occurrence, involving a clear and imminent danger, demanding
immediate action to prevent or mitigate the loss of, or damage to,
5
life, health, property, or essential public services. Emergency
includes such occurrences as fire, flood, earthquake, or other soils
or geologic movements, as well as such occurrences as riot,
accident, or sabotage.
2.42 "Endangered Species" means those species listed as
endangered under FESA and/or CESA.
2.43 "Essential Ecological Processes" means processes
that maintain specific Habitat types and are necessary to sustain the
Habitat (in a state usable by Covered Species). Essential
Ecological Processes may include abiotic hydrological processes
(both subsurface and surface), erosion, deposition, blowsand
movement, substrate development and soil formation, disturbance
regimes such as flooding and fire, and biotic processes such as
reproduction, pollination, dispersal, and migration.
2.44 "Essential Habitat" means certain lands delineated
in the Recovery Plan for Bighorn Sheep in the Peninsular Ranges,
California (USFWS 2000).
2.45 "Existing Conservation Lands" means a subset of
the MSHCP Reserve System lands consisting of lands in public or
private ownership and managed for Conservation and/or open
space values that contribute to the Conservation of Covered
Species, as generally depicted in Figure 4-2 of the MSHCP.
2.46 "Existing Uses" means an existing use, public or
private, which is the primary use on the property.
2.47 "Feasible" means capable of being accomplished in
a successful manner within a reasonable period of time, taking into
account economic, environmental, legal, social, and technological
factors.
2.48 "Federal Endangered Species Act ("FESA")"
means 16 U.S.C., Section 1531 et seq. and all rules and regulations
promulgated there under, as amended.
2.49 "Habitat" means the combination of environmental
conditions of a specific place providing for the needs of a species
or a population of such species.
2.50 "HabiTrak" means a GIS application to provide data
on Habitat loss and Conservation, which occurs under the Permits.
2
2.51 "Implementing Agreement ("IA")" means the
executed agreement that implements the terms and conditions of
the MSHCP.
2.52 "Independent Science Advisors ("ISA")" means the
qualified biologists, Conservation experts and others that provide
scientific input to assist in the planning and implementation of the
MSHCP for the benefit of the Covered Species, as set forth in
Section 3.1.2 of the MSHCP.
2.53 "Joint Project Review Process" means the review
process described in Section 6.6.1.1 of the MSHCP for
Development proposed in Conservation Areas.
2.54 "Land Manager" means the entity, or entities, which
has the responsibility to manage land acquired by the Permittees as
set forth in Section 6.1.5 of the MSHCP.
2.55 "Land Use Adjacency Guidelines" means standards
delineated in Section 4.5 of the MSHCP for land uses adjacent to
or within Conservation Areas that are necessary to avoid or
minimize edge effects. "Adjacent" means that a parcel shares a
common boundary with a parcel in a Conservation Area.
2.56 "Legal Instrument" as used within the Plan and/or
IA, shall refer to recorded legal instruments acceptable to the
Wildlife Agencies, which provides legal protection in perpetuity to
conservation lands; this legal protection may consist of a
conservation easement consistent with California Civil Code
Section 815 et seq. or a perpetual deed restriction that meets the
requirements of a conservation easement under this statute.
2.57 "Linkage" means Habitat that provides for the
occupancy of Covered Species and their movement between larger
blocks of Habitat over time, potentially over a period of
generations. In general, Linkages are large enough to include
adequate Habitat to support small populations of the species and,
thus, do not require that an individual of the species transit the
entire Linkage to maintain gene flow between populations. What
functions as a Linkage for one species may provide only a
Biological Corridor or no value for other species. [See also
"Biological Corridor."]
2.58 "Listed Species" means a species that is listed under
FESA and/or CESA.
7
2.59 "Local Development Mitigation Fee" means the fee
imposed by applicable Local Permittees on new Development
pursuant to Government Code, Sections 66000 et seq.
2.60 "Local Permittees" means CVAG, CVCC, County,
County Flood Control, County Parks, County Waste, CVWD, IID,
MSWD, and the Cities.
2.61 "Major Amendments" means those proposed
amendments to the MSHCP and this Agreement, as described in
Section 20.5 of this Agreement and Section 6.12.4 of the MSHCP.
2.62 "Management Program" means the MSHCP
management actions, as described in Section 8 of the MSHCP.
2.63 "Migratory Bird Treaty Act ("MBTA")" means 50
C.F.R., Section 21 et seq. and all rules and regulations promulgated
there under, as amended.
2.64 "Migratory Bird Treaty Act ("MBTA") Special
Purpose Permit" means a permit issued by the USFWS under 50
Code of Federal Regulations, section 21.27, authorizing Take, in
connection with Covered Activities, under the MBTA of the
Covered Species listed in 50 Code of Federal Regulations Section
10.13 that are also listed as endangered or threatened under FESA.
2.65 "Minor Amendments" means minor changes to the
MSHCP and this Agreement, as defined in Section 20.4 of this
Agreement and Section 6.12.3 of the MSHCP.
2.66 "Mitigation Lands" means a subset of Additional
Conservation Lands as described in Section and 4.2.2 of the
MSHCP.
2.67 "Monitoring Program" means the monitoring
programs and activities set forth in Section 8 of the MSHCP.
2.68 "Monitoring Program Administrator ("MPA")"
means the individual or entity responsible for administering the
monitoring program, as described in Section 6.1.6 of the MSHCP.
2.69 "Monitoring Report(s)" means the report(s)
prepared pursuant to the requirements of Section 8.7 of the
MSHCP.
2.70 "MSHCP" means a synonym for Plan, used in the
text where needed for clarity.
2.71 "MSHCP Reserve System" means a reserve that
will total approximately 745,900 acres. The MSHCP Reserve
System will provide for the Conservation of the Covered Species.
2.72 "NCCP Act" means the California Natural
Community Conservation Planning Act of 2002 (California Fish
and Game Code § 2800 et seq.), including all regulations
promulgated thereunder, as amended.
2.73 "NCCP Permit" means the Permit issued under the
NCCP Act for the MSHCP to permit the Take of identified species
listed under CESA as threatened or endangered, a species that is a
candidate for listing, and Non -listed Species.
2.74 "NEPA" means the National Environmental Policy
Act (42 U.S.C., Section 4321 - 4335) and all rules and regulations
promulgated thereunder, as amended. For the purposes of the
MSHCP, USFWS is the Lead Agency under NEPA, as defined in
40 C.F.R., Section 1508.16.
2.75 "Non -Listed Species" means a species that is not
listed under FESA and/or CESA.
2.76 "No Surprises Assurances" means the guarantee
that, provided Permittees are properly implementing the terms and
conditions of the MSHCP, this Agreement, and the Permit(s), the
USFWS can only require additional mitigation for Covered Species
beyond that provided for in the MSHCP as a result of Unforeseen
Circumstances in accordance with the "No Surprises" regulations
at 50 C.F.R., Sections 17.22(b)(5) and 17.32(b)(5) and as discussed
in Section 6.8 of the MSHCP.
2.77 "Operation and Maintenance Activities ("O&M")"
means those Covered Activities that include the ongoing operation
and maintenance of public facilities, as described in Section 7.3.1.1
of the MSHCP.
2.78 "Other Conserved Habitat" means part of a
Conservation Area that does not contain Core Habitat for a given
species, but which still has Conservation value. These values may
include Essential Ecological Processes, Biological Corridors,
Linkages, buffering from edge effects, enhanced species
persistence probability in proximate Core Habitat, genetic
diversity, recolonization potential, and flexibility in the event of
long-term Habitat change.
2.79 "Participating Special Entity" means any regional
public service provider, such as a utility company or a public
0
district or agency, that operates and/or owns land within the Plan
Area and that applies for Take Authorization pursuant to Section
11.7 of this Agreement.
2.80 "Party" and "Parties" mean the signatories to this
Agreement, namely CVCC, CVAG, County, County Flood
Control, County Parks, County Waste, the Cities, CVWD, IID,
MSWD, Caltrans, State Parks, CVMC, CDFW, USFWS and any
other city within the Plan Area that incorporates after the Effective
Date and complies with Section 11.5 of this Agreement.
2.81 "Permit(s)" means, collectively, the Section
I0(a)(1) Permit and NCCP Permit issued by the Wildlife Agencies
to Permittees for Take of Covered Species pursuant to FESA and
the NCCP Act and in conformance with the MSHCP and this
Agreement.
2.82 "Permittees" means CVAG, CVCC, County,
County Flood Control, County Parks, County Waste, the Cities,
CVWD, IID, MSWD, Caltrans, State Parks and CVMC.
2.83 "Plan" means the Coachella Valley Multiple
Species Habitat Conservation Plan, a comprehensive multiple
species habitat conservation planning program that addresses
multiple species' needs, including Habitat and the preservation of
natural communities in the Coachella Valley area of Riverside
County, California, as depicted in Figure 4-1 in Section 4 of the
MSHCP and Exhibit "A" of this Agreement.
2.84 "Plan Area" means the boundaries of the MSHCP,
consisting of approximately 1.1 million acres in the Coachella
Valley area of Riverside County, California, as depicted in Figure
1-2 of the MSHCP Plan, and Exhibit "B" to this Agreement.
2.85 "Planning Agreement" means the Memorandum of
Understanding prepared consistent with the NCCP Act to guide
development of the MSHCP that is contained in Appendix II of the
MSHCP.
2.86 "Plan Participants" means CVAG, CVCC, County,
County Flood Control, County Parks, County Waste, the Cities,
CVWD, IID, MSWD, CVMC, Caltrans, State Parks and others
receiving Take Authorization under the Permits.
2.87 "Private Conservation Land" means land owned by
a non -governmental entity committed to Conservation in perpetuity
through deed restriction, conservation easement, or other binding
agreement satisfactory to CDFW and USFWS.
10
2.88 "Reserve Lands" means Existing Conservation
Lands, Additional Conservation Lands, and Complementary
Conservation.
2.89 "Reserve Management Oversight Committee
("RMOC")" means the committee established by the CVCC to
provide biological, technical, and operational expertise for
implementation of the MSHCP, including oversight of the MSHCP
Reserve System, as described in Section 6.1.3 of the MSHCP.
2.90 "Reserve Management Unit ("RMU")" means the
unit identified in Section 6.1.4 of the MSHCP.
2.91 "Reserve Management Unit Plan ("RMUP" )"
means the plan setting forth management practices for identified
portions of the MSHCP Reserve System Area, prepared and
adopted as described in Section 6.2 of the MSHCP.
2.92 "Reserve System" means a synonym for MSHCP
Reserve System.
2.93 "Reserve System Assembly" means the process of
conserving lands within the Conservation Areas through
acquisition or other means to assemble the MSHCP Reserve
System.
2.94 "Rough Step" means a Conservation Area assembly
accounting process to monitor Conservation and loss of specified
Habitats within the Plan Area.
2.95 "Rough Step Analysis Unit" means a geographic
unit within which Rough Step is tracked. The Conservation Areas
are the Rough Step Analysis Units.
2.96 "Scientific Advisory Committee ("SAC")" means
the committee of scientists that provided scientific input into the
development of the Plan, as described in Section 3.1.1.
2.97 "Section 10(a) Permit" means the permit issued by
the USFWS to Permittees pursuant to 16 U.S.C., Section 1539(a),
authorizing Take of Covered Species.
2.98 "Special Provisions Area" means provisions that
apply to a given location or area, identified by a location
description or in a figure, which address specific conditions
necessary to achieve Conservation in that location or area.
11
2.99 "Species Conservation Goal(s)" means the Goals
for the Conservation of each Covered Species described in Section
9 of the MSHCP.
2.100 "State Assurances" means, except as provided in
Section 15.5 of this Agreement, provided Permittees are
implementing the terms and conditions of the MSHCP, the
Agreement, and the Permits, if there are Unforeseen
Circumstances, CDFW shall not require additional land, water or
financial compensation or additional restrictions on the use of land,
water or other natural resources for the life of the NCCP Permit
without the consent of the Permittees, unless CDFW determines
that continued implementation of this Agreement, the MSHCP,
and/or the Permits would jeopardize the continued existence of a
Covered Species, or as required by law and would therefore lead to
NCCP Permit revocation or suspension.
2.101 "State Permittees" means Caltrans, State Parks, and
CVMC.
2.102 "Take" means the definition of such term in FESA
and the California Fish and Game Code. Section 9 of FESA does
not prohibit Take of Federally Listed plants.
2.103 "Take Authorization" means the ability to
incidentally Take species pursuant to the Section 10(a)(1)(B) Permit
and/or the NCCP Permit.
2.104 "Third Parry Take Authorization" means Take
Authorization received by a landowner, developer, or other public
or private entity from the Permittees pursuant to Section 17 of this
Agreement, thereby receiving Take Authorization for Covered
Species pursuant to the Permits.
2.105 "Threatened Species" means those species listed as
threatened under FESA and/or CESA.
2.106 "Unforeseen Circumstances" means changes in
circumstances affecting a Covered Species or geographic area
covered by the MSHCP that could not reasonably have been
anticipated by the Parties at the time of the MSHCP's negotiation
and development, and that result in a substantial and adverse
change in the status of the Covered Species. As defined, the term
is intended to have the same meaning as it is used: (1) to define
the limit of the Permittees' obligation on the "No Surprises"
regulations set forth in 50 C.F.R., Sections 17.22(b)(5) and
12
17.32(b)(5); and (2) in California Fish and Game Code, Section
2805(k).
2.107 "United States Fish and Wildlife Service
("USFWS")" means an agency of the United States Department of
the Interior.
2.108 "Wildlife Agencies" means USFWS and CDFW,
collectively.
3. RECITALS
This Agreement is entered into with regard to the following facts:
WHEREAS, CVAG is a joint powers authority, created pursuant to the provisions of
Government Code section 6500; and
WHEREAS, CVCC is a joint powers authority, created pursuant to the provisions of
Government Code section 6500; and
WHEREAS, CVWD is a governmental agency, created pursuant to the provisions of
California Water Code section 30000; and
WHEREAS, IID is a governmental agency, created pursuant to the provisions of
California Water Code section 20500; and
WHEREAS, MSWD is a County Water District, created pursuant to the provisions of
California Water Code section 3000 et seq; and
WHEREAS, the County is a governmental agency, created pursuant to the provisions of
the California Government Code, Title 3, Div. 1, Chapter 3, Article 1, section 23300; and
WHEREAS, County Flood Control is a governmental agency, created pursuant to the
provisions of the California Water Appendix, Chapter 48-1; and
WHEREAS, County Parks is a governmental agency, created pursuant to the provisions
of Public Resources Code section 5506.7; and
WHEREAS, County Waste is a governmental agency, created pursuant to the provisions
of the Health and Safety Code sections 4700 et seq.; and
WHEREAS, the Cities are California municipal corporations located within the Coachella
Valley of Riverside County, California; and
WHEREAS, Caltrans is a department of the California Business, Transportation and
Housing Agency, created pursuant to the provisions of the California Government Code sections
14000 et seq.; and
13
WHEREAS, State Parks is a department of the California Resources Agency, created
pursuant to the provisions of the California Government Code sections 14000 et seq.; and
WHEREAS, CVMC is a state agency within the California Resources Agency, created
pursuant to the provisions of Public Resources Code sections 33500 et seq.; and
WHEREAS, CDFW is a department of the California Resources Agency with jurisdiction
over the conservation, protection, restoration, enhancement and management of fish, wildlife,
native plants and habitat necessary for biologically sustainable populations of those species under
the California Endangered Species Act (California Fish and Game Code sections 2050 et seq.), the
California Native Plant Protection Act (California Fish and Game Code sections 1900 et seq.), the
California Natural Community Conservation Planning Act (California Fish and Game Code
sections 2800 et seq.) and other relevant state laws; and
WHEREAS, USFWS is an agency of the United States Department of the Interior and 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 extent set forth in FESA and other relevant federal laws; and
WHEREAS, the MSHCP is a multi jurisdictional habitat conservation plan focusing on
the conservation of both sensitive species and associated habitats to address biological and
ecological diversity conservation needs in the Coachella Valley and surrounding mountains
located in Central Riverside County, setting aside significant areas of undisturbed land for the
conservation of sensitive habitat while preserving open space and recreational opportunities; and
WHEREAS, the MSHCP's external boundaries encompass approximately 1.2 million
acres, which extend to include the Coachella Valley watershed; and
WHEREAS, certain plant and animal species and habitat have been identified that exist,
or may exist, within the Coachella Valley and surrounding mountains, and which have been: 1)
state or federally listed as threatened or endangered; 2) proposed for listing as threatened or
endangered; or 3) identified as a CDFW Species of Special Concern, a California Fully Protected
Species, a California Specially Protected Species, a sensitive plant species as determined by the
California Native Plant Society or other unlisted wildlife considered sensitive within the Plan Area;
and
WHEREAS, future growth and land development within the Plan Area, including both
public and private projects, may result in the "taking" of such species as defined in state and federal
law, thus requiring Take Authorization prior to the carrying out of otherwise lawful activities; and
WHEREAS, the MSHCP will give the County, the Cities and other Permittees the ability
to control local land use decisions and maintain economic development flexibility while providing
a coordinated reserve system and implementation program that will facilitate the preservation of
biological diversity, as well as enhancing the region's quality of life. Such planning is an effective
tool in protecting the region's biodiversity while reducing conflicts between protection of wildlife
and plants and the reasonable use of natural resources for economic development; and
WHEREAS, the MSHCP addresses the potential impacts of urban growth, natural habitat
14
loss and species endangerment, and creates a plan to mitigate for the potential loss of Covered
Species and their habitats due to the direct and indirect impacts of future development of both
private and public lands within the Plan Area; and
WHEREAS, the MSHCP, this Agreement and the Permits establish the conditions under
which the Permittees will receive from the USFWS and CDFW certain long-term Take
Authorizations and other assurances that will allow the taking of Covered Species incidental to
lawful uses authorized by the Permittees; and
WHEREAS, Permittees will, for the benefit of public and private property owners and
other project proponents within the MSHCP boundaries, transfer Take Authorization received
from the Wildlife Agencies through the land use entitlement process, issuance of Certificate of
Inclusion or other appropriate mechanism as set forth in the MSHCP and this Agreement; and
WHEREAS, Permittees, with technical assistance from the USFWS and CDFW, have
prepared the MSHCP as part of their application for Take Authorization for Covered Species, as
defined below, to the Wildlife Agencies under FESA and the NCCP Act, which describes the
biological impacts of the MSHCP on the Covered Species and their habitats, and defines the
comprehensive avoidance, minimization, conservation and mitigation measures required to avoid
and mitigate effects of Take of Covered Species from Permittees' Covered Activities; and
WHEREAS, the MSHCP has been developed through a cooperative effort involving
USFWS, CDFW, local governmental agencies, property owners, development interests,
environmental interest groups and other members of the public.
AGREEMENT
THEREFORE, the Parties do hereby understand and agree as follows:
4. PURPOSES
The purposes of this Agreement are:
4.1 To ensure implementation of each of the terms of
the MSHCP and this Agreement for the benefit of the Covered
Species and Natural Communities, while allowing well managed
and planned future economic growth;
4.2 To describe remedies and recourse should any Party
fail to perform its obligations, responsibilities and tasks as set forth
in the MSHCP, the Permits and this Agreement; and
4.3 To provide assurances to Permittees and others
participating in the MSHCP that:
A. With respect to Covered Species, compliance with the terms of the MSHCP,
the Permits and this Agreement constitutes compliance with the provisions
of FESA, CESA and the NCCP Act;
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B. Implementation of this Agreement and the MSHCP will adequately provide
for the Conservation and protection of the Covered Species and their
Habitats in the Plan Area; and
C. Pursuant to the federal "No Surprises" provisions of 50 Code of Federal
Regulations, section 17.22(b)(5) and 17.32(b)(5) and State Assurances
pursuant to Fish and Game Code section 2820(f) and Sections 14.11 and
15.3 of this Agreement, respectively, as long as the terms of the MSHCP,
this Agreement and the Permits are properly implemented, the Wildlife
Agencies will not require additional mitigation from Permittees, with
respect to Covered Species, except as provided for in this Agreement or as
required by law.
5. INCORPORATION OF THE MSHCP
The MSHCP and each of its provisions are intended to be, and by this reference are,
incorporated herein. In the event of any direct contradiction between the terms of this Agreement
and the MSHCP, the terms of this Agreement will control. In all other cases, the terms of this
Agreement and the terms of the MSHCP will be interpreted to be supplementary to each other.
6. CONSERVATION STRATEGY
6.1 The MSHCP is intended to conserve adequate habitat in an unfragmented manner
to provide for the protection and security of long-term viable populations of the species that are
either currently listed as threatened or endangered, are proposed for listing, or are believed to have
a high probability of being proposed for listing in the future if not protected by the Plan. The
MSHCP is intended to preserve biological diversity as well as maintain the quality of life within
the Coachella Valley and surrounding mountains by conserving species and their associated
habitats and coordinating, streamlining and planning Development. By adopting this regional
approach, the MSHCP will result in much greater and more biologically effective Habitat and
species Conservation than a project -by -project approach could produce. The MSHCP is intended
to proactively address requirements of the state and federal ESAs to avoid disruption of economic
development activities in the Plan Area.
6.2 The MSHCP provides a broad Conservation Strategy, which will be implemented
generally through the following:
A. As set forth in Section 4.0 of the MSHCP, the MSHCP Reserve System
shall be approximately 745,900 acres and will consist of Existing
Conservation Lands, lands conserved through Complementary
Conservation and Additional Conservation Lands. The MSHCP Reserve
System is divided into 21 Conservation Areas that provide Core and other
Conserved Habitat for Covered Species, conserve the natural communities
included in the Plan and Essential Ecological Processes essential to sustain
the Core Habitat and secure Biological Corridors and Linkages between
major Habitat areas.
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B. For each of the Conservation Areas, Conservation Objectives and required
measures shall be implemented as set forth in Section 4.3 of the MSHCP.
C. New land uses adjacent to or within the MSHCP Conservation Areas shall
implement the Land Use Adjacency Guidelines set forth in Section 4.5 of
the MSHCP, as applicable.
D. The Avoidance, Minimization and Mitigation Measures set forth in Section
4.4 of the MSHCP shall be implemented.
E. Monitoring and management activities will be undertaken for each of the
MSHCP Covered Species. Monitoring and management activities are
described in Section 8 of the MSHCP.
F. Species -specific Conservation Goals and Objectives shall be implemented
for each of the Covered Species in the MSHCP and are set forth in Section
9 of the MSHCP.
G. Natural Communities Conservation Goals and Objectives have been
developed and shall be implemented for each of the Covered Natural
Communities in the MSHCP and are set forth in Section 10 of the MSHCP.
7. MSHCP RESERVE SYSTEM ASSEMBLY
7.1 Overview. As set forth in Section 4 of the MSHCP,
the MSHCP Reserve System will consist of approximately 745,900
acres and will consist of Existing Conservation Lands, lands
conserved through Complementary Conservation and Additional
Conservation Lands. The MSHCP Reserve System is divided into
21 Conservation Areas that provide Core and other Conserved
Habitat for Covered Species, conserve the natural communities
included in the Plan and Essential Ecological Processes essential to
sustain the Core Habitat and secure Biological Corridors and
Linkages between major habitat areas.
7.2 Contribution of Existing Conservation Lands.
As described in Section 4.1 of the MSHCP, the MSHCP Reserve
System will include Existing Conservation Lands. As of 1996,
these lands were comprised of approximately 496,400 acres.
Because of acquisitions, the acreage had increased to 557,100 by
2006. Of this acreage, 491,500 acres (as of 1996), or 529,200 acres
(as of 2006) are federal and state Existing Conservation Lands.
Approximately 900 acres (as of 1996), or 19,100 acres (as of 2006)
are non-profit organization Existing Conservation Lands.
Approximately 4,000 acres (as of 1996) or 8,800 acres (as of 2006)
are Local Permittee Existing Conservation Lands.
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7.3 Complementary Conservation. As described in
Section 4.2.1 of the MSHCP, the MSHCP Reserve System will
include approximately 69,290 acres (as of 1996), or 29,990 acres
(as of 2006) through Complementary Conservation efforts. Such
efforts include BLM and United States Forest Service acquisition
programs in the Santa Rosa and San Jacinto Mountains National
Monument, BLM Wilderness in -holding acquisitions, including
Mecca Hills and Orocopia Mountains Wilderness Areas, and
Joshua Tree National Park.
7.4 Contribution of Additional Conservation Lands.
As described in Table 4-1 and Sections 4.2.2 and 5.1.1 of the
MSHCP, the MSHCP Reserve System will include Additional
Conservation Lands comprised of approximately 129,690 acres as
of 2006 that will be acquired or otherwise conserved. Of this
acreage, approximately 96,400 acres (as of 2006) will be acquired
or otherwise conserved as the Local Permittees' share of Plan
implementation. Approximately 39,850 acres (as of 1996) or
21,390 acres (as of 2006) will be acquired or otherwise conserved
as the state and federal contribution to Plan implementation.
Approximately 10,800 acres of public and quasi -public lands are
also projected to be conserved. In addition, as described in Section
4.2.2.2.4 of the MSHCP, the Local Permittees will protect the
fluvial sand transport Essential Ecological Process in the Cabazon,
Long Canyon, and West Deception Canyon Conservation Areas to
ensure no net reduction in fluvial sand transport in these areas,
which comprise approximately 7,800 acres.
7.5 Review of Development Proposals in
Conservation Areas. As set forth in Section 4.3 of the MSHCP,
Development in Conservation Areas will be limited to uses that are
compatible with the Conservation Objectives for the specific
Conservation Area. Discretionary Projects in Conservation Areas,
other than second units on parcels with an existing residence, shall
be required to assess the project's ability to meet the Conservation
Objectives in the Conservation Area. Additionally, the Permittees
will participate in the Joint Project Review Process set forth in
Section 6.6.1.1 of the MSHCP.
7.6 Reserve Assembly Accounting. In order to ensure
that the MSHCP Reserve System is established, all Permittees
willbe required to maintain a record of total acres and location of
Development within their jurisdiction within the Plan boundaries
and submit this information to the CVCC on a monthly basis.
However, Caltrans must submit such information on a bi-annual
basis. As set forth in Section 6.4 of the MSHCP, annual reports will
be prepared in order to account for Habitat losses and gains
associated with public and private Development projects. The
annual reports will be used to demonstrate that Conservation is
occurring in rough proportionality with Development, reflect that
the MSHCP Reserve System is being assembled as contemplated
in the MSHCP and ensure that Habitat Conservation Goals and
Objectives and required measures are being implemented.
8. MSHCP RESERVE SYSTEM MANAGEMENT REQUIREMENTS
8.1 Overview. The MSHCP Reserve System will be
managed pursuant to Section 8 of the MSHCP. The Plan
establishes RMUs to ensure coordinated management in order to
achieve the Conservation Goals and Objectives. Additionally,
within three (3) years of Permit issuance, the RMUCs and the Land
Manager will develop a Reserve System Management Plan. The
elements of this plan are described in Section 6.2 of the MSHCP
and will include ongoing management measures and Adaptive
Management actions.
8.2 Management Activities. Management activities
pursuant to the MSHCP are set forth in Section 8 of the MSHCP.
As set forth in Sections 6.1.3 and 8.2.2 of the MSHCP, such
activities will be overseen by the RMOC and implemented by the
RMUCs, in coordination with the Land Manager and Monitoring
Program Administrator.
8.3 Management Program. Section 8 of the MSHCP
sets forth the Management Program, allowing flexibility to ensure
protection of species for which current scientific data is currently
lacking. Consistent with an Adaptive Management approach, the
Parties agree that the methods and means of implementing the
Management Program shall be changed as necessary to respond to
species' needs and new scientific data as these items may change
over time.
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9. MSHCP RESERVE SYSTEM MONITORING REQUIREMENTS
9.1 Monitoring Program. Monitoring of the MSHCP
Reserve System will be instituted pursuant to Section 8.3 of the
MSHCP. Implementation of the long-term Monitoring Program
includes an initial inventory and assessment period.
9.2 Monitoring Program Administrator. A
Monitoring Program Administrator shall be selected by the CVCC
and shall be responsible for implementing the Monitoring Program
with oversight from the RMOC. The Monitoring Program
Administrator's duties are set forth in Section 6.1.6 of the MSHCP.
9.3 Monitoring Reporting Requirements. Pursuant
to Section 8.7 of the MSHCP, the Monitoring Program
Administrator shall prepare annual monitoring reports that provide
an analysis of the monitoring results and any implications for the
Management Program and Reserve System Assembly. These
reports will be submitted to the RMOC, the RMUCs and the Land
Manager and will include, at a minimum, the items listed in Section
8.7 of the MSHCP.
10. REPORTING REQUIREMENTS
10.1 Annual Reporting. As described in Section 6.4 of
the MSHCP, the CVCC will prepare an annual report that will be
submitted to the Wildlife Agencies and Permittees. The annual
report for the preceding calendar year shall be submitted by March
30. The annual report shall be presented at a CVCC public
workshop and copies made available to the public. The annual
report shall include, at a minimum, the following information:
A. An overview of the status of the Conservation Areas.
B. Results of monitoring as described in Section 8.7 of the MSHCP.
Identification of Adaptive Management actions indicated and whether or
not such actions were implemented.
C. A description of Reserve Management activities for the previous year.
D. An accounting of the number of acres acquired, conserved through
cooperative management agreements or otherwise protected during the
previous year to quantify the progress achieved towards identified
Conservation Objectives.
E. An accounting of the number of acres of Core Habitat, Essential Ecological
Processes, Biological Corridors and Linkages and natural communities
20
conserved within each Conservation Area developed or impacted by
Covered Activities during the previous year.
F. An accounting of the number of acres of habitat for the species and natural
communities outside the MSHCP Conservation Areas in the Plan Area
developed during the previous year.
G. An accounting of the status of each Covered Species with respect to the
Species Conservation Goals and Objectives in Sections 4 and 9.
H. An evaluation of any significant issues encountered in Plan implementation
during the previous year and proposed resolution.
L Expenditures for acquisition and MSHCP Reserve System management
over the previous year and applicable budgets for the upcoming fiscal year.
J. Summary of compliance activities required of Permittees.
K. A copy of the audit of CVCC finances for the most recent fiscal year.
L. Summary of all unauthorized/unpermitted activities detected and
enforcement actions taken during the previous year
M. Additional technical, commercial, and scientific information and/or data
that are reasonably available and necessary to evaluate performance and
compliance with the commitments and objectives of the Plan shall be
provided to the Wildlife Agencies upon written request.
10.2 Certification of Reports. All reports shall include
the following certification from the responsible entity official that
supervised or directed preparation of the report:
I certify that, to the best of my knowledge, after appropriate inquiries
of those involved in the preparation of the report, the information
submitted is appropriate and complete.
11. MSHCP IMPLEMENTATION STRUCTURE
11.1 Permittee Implementation Mechanisms. As set
forth below, the Permittees have selected legal mechanisms to
ensure implementation of the terms of the MSHCP and this
Agreement ("Implementation Mechanism"). The Permits shall be
effective upon issuance. If, however, within six (6) months of
execution of this Agreement, the County and Cities have not
adopted an appropriate Implementation Mechanism, the Wildlife
Agencies may initiate suspension or revocation proceedings
pursuant to Section 23.5 of this Agreement. The Permittees'
21
obligations to fully implement the terms and conditions of the
MSHCP and this Agreement commence upon execution of this
Agreement. After adoption of an Implementation Mechanism, the
Local Permittees shall submit a copy of the appropriate documents
to the CVCC and the Wildlife Agencies substantially in the form
addressed below, or take such other actions that will ensure
effective MSHCP implementation.
11.1.1 The Cities
A. The Cities shall adopt an ordinance imposing the Local
Development Mitigation Fee as analyzed in the Nexus Fee
Report. A model ordinance imposing such fees is attached to
this Agreement as Exhibit "D." The Cities shall adopt
ordinances in substantially the same form or at a minimum,
containing the same requirements as the model ordinance.
B. The Cities shall adopt a resolution that adopts the MSHCP and
establishes procedures and requirements for the implementation
of its terms and conditions. A model resolution is attached to this
Agreement as Exhibit "E." The Cities shall adopt a resolution
in substantially the same form or at a minimum, containing the
same requirements as the model resolution. The resolution shall
contain at least the following conditions:
1. Commitment to ensure compliance with the
Conservation Area requirements and measures set forth
in Section 4 of the MSHCP, including but not limited to
the Property Owner Initiated Habitat Evaluation and
Acquisition Negotiation Strategy (HANS), if HANS is
applicable.
2. Imposition of all other terms of the MSHCP, this
Agreement and the Permits including but not limited to
participation in the Joint Project Review Process set forth
in Section 6.6.1.1 of the MSHCP, and compliance with
the applicable Land Use Adjacency Guidelines set forth
in Section 4.5 of the MSHCP.
3. Agreement to enforce all terms and conditions of the
MSHCP, this Agreement and the Permits.
11.1.2 The County.
A. The County shall establish a development mitigation fee for the
unincorporated area of the County to specifically provide for
habitat acquisition pursuant to the MSHCP.
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B. The County shall implement the MSHCP through incorporation
of the relevant terms and requirements into its General Plan,
including but not limited to the following:
1. Commitment to ensure compliance with the
Conservation Area requirements and measures set forth
in Section 4.0 of the MSHCP, including but not limited
to the Property Owner Initiated Habitat Evaluation and
Acquisition Negotiation Strategy, if applicable.
2. Imposition of all other terms of the MSHCP, this
Agreement and the Permits including but not limited to
participation in the Joint Project Review Process set forth
in Section 6.6.1.1 of the MSHCP, and compliance with
the applicable Land Use Adjacency Guidelines set forth
in Section 4.5 of the MSHCP.
3. Agreement to enforce all other terms and conditions of
the MSHCP, this Agreement and the Permits.
11.1.3 County Flood Control. County Flood Control shall implement the
MSHCP and this Agreement through execution of this Agreement.
11.1.4 County Parks. County Parks shall implement the MSHCP and this
Agreement through execution of this Agreement.
11.1.5 County Waste. County Waste shall implement the MSHCP and this
Agreement through execution of this Agreement.
11.1.6 CVCC. CVCC shall implement the MSHCP and this Agreement
through approval of a resolution that adopts the MSHCP and establishes
procedures and requirements for the implementation of its terms and
conditions for any Covered Activities. The CVCC shall adopt a
resolution in substantially the same form as the Model Resolution
attached as Exhibit "E."
11.1.7 CVAG. CVAG shall implement the MSHCP and this Agreement
through execution of this Agreement.
11.1.8 CVMC. CVMC shall implement the MSHCP and this Agreement
through execution of this Agreement.
11.1.9 Caltrans. Caltrans shall implement the MSHCP and this Agreement
through execution of this Agreement.
11.1.10 State Parks. State Parks shall implement the MSHCP and this
Agreement through execution of this Agreement.
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11.1.11 CVWD. CVWD shall implement the MSHCP and this Agreement
through execution of this Agreement.
11.1.12 IID. IID shall implement the MSHCP and this Agreement through
execution of this Agreement.
11.1.13 MSWD. MSWD shall implement the MSHCP and this Agreement
through execution of this Agreement.
11.2 Organizational Structure
11.2.1 Overview. Successful implementation of the MSHCP requires both a
local administrative structure and effective coordination with state and
federal partners. The Parties have therefore established an
Organizational Structure for implementation and management of the
MSHCP described in Section 6.1 of the MSHCP.
11.2.2 CVCC Organization
A. Overview. As set forth in Section 6.1 of the MSHCP,
implementation of the MSHCP will be overseen and
administered by the CVCC, a joint regional authority formed by
the County, the Cities, CVWD, IID, and MSWD. The CVCC
shall sign this Agreement and shall be a Permittee under the
Permits. However, the CVCC shall not limit County or City
local land use authority or prevent a Permittee from approving a
Discretionary Project. As set forth in Section 6.1.1 of the Plan,
the CVCC shall be formed prior to issuance of the Permits, as a
separate and independent joint powers authority.
B. Duties and Responsibilities. The CVCC shall provide the
primary policy direction for the implementation of the MSHCP
and will provide opportunities for public participation in the
decision -making process. The CVCC shall have, at a minimum,
the powers and duties as set forth in Section 6.1.1.2 of the
MSHCP.
11.2.3 Acquisition and Funding Coordinating Committee. To assist in
implementing its duties under the MSHCP, the CVCC shall form the
Acquisition and Funding Coordinating Committee to provide input on
local funding priorities and Additional Conservation Lands acquisition
priorities. As set forth in Section 6.1.2 of the MSHCP, the Acquisition
and Funding Coordinating Committee shall be formed within one
hundred twenty (120) days of the issuance of the Permits. Permittee
representatives on the Acquisition and Funding Coordinating
Committee shall be appointed by the CVCC and shall include any
Permittee requesting membership. The Wildlife Agencies shall be ex
officio members of the Acquisition and Funding Coordinating
24
Committee. The Acquisition and Funding Coordinating Committee
shall advise the CVCC on local funding priorities and Additional
Conservation Lands acquisitions as set forth in Section 6.1.2 of the
MSHCP. However, the CVCC will have final decision making
authority in establishing and implementing these local priorities.
11.2.4 Joint Project Review Process. To ensure that the requirements of the
Permits, the MSHCP and this Agreement are properly met, a Joint
Project Review Process for projects within the Conservation Areas shall
be instituted by the CVCC. The process for the Joint Project Review
Process is set forth in Section 6.6.1.1 of the MSHCP.
11.2.5 CVCC Executive Director.
A. Selection. An appropriate individual shall be selected as the
CVCC Executive Director by the CVCC to administer the Plan.
The Executive Director shall implement the duties and
responsibilities of the CVCC. During the first five (5) years, the
CVCC shall initially contract with CVAG for the Executive
Director within thirty (30) days of the formation of the CVCC.
B. Duties and Responsibilities. The Executive Director shall have
the powers and duties as set forth in Section 6.1.1.3 of the
MSHCP.
11.2.6 Reserve Management Oversight Committee.
A. Formation and Representation. As described in Section 6.1.3
of the MSHCP, the RMOC is the primary interagency group that
will coordinate implementation of the Plan. The CVCC
Executive Director shall appoint the chair of the RMOC from
those entities identified below. The RMOC shall be assembled
within one hundred twenty (120) days of Permit issuance and
shall report to the CVCC. The RMOC shall be composed of one
representative from USFWS, CDFW, BLM, State Parks, CVCC,
the County and up to five other representatives, as appointed by
the CVCC, of private and public agencies or entities that hold
land dedicated to Conservation within the MSHCP Reserve
System. National Park Service (designated by NPS) and U.S.
Forest Service (designated by USFS) will be ex officio members.
B. Duties and Responsibilities. The RMOC shall have the duties
and responsibilities as set forth in Section 6.1.3 of the MSHCP.
11.2.7 Reserve Management Unit Committees. To coordinate management
of lands owned by different entities in the MSHCP Reserve System,
RMUCs will be established for each of the six Reserve Management
Units ("RMU"). The RMUs are described in Section 6.1.4 of the
25
MSHCP. The RMUCs shall be established within one hundred twenty
(120) days of Permit issuance. RMUC composition and duties and
responsibilities are set forth in Section 6.1.4 of the MSHCP.
11.2.8 Land Manager. As described in Section 6.1.5 of the MSHCP, the
CVCC may retain or contract with a person or entity to manage Local
Permittee RMU lands and coordinate through the RMUCs with the
entities managing Conservation land in the RMUs. The required
qualifications, duties and responsibilities of the Land Manager are set
forth in Section 6.1.5 of the MSHCP.
11.2.9 Monitoring Program Administrator. A Monitoring Program
Administrator selected by the CVCC shall be responsible for
implementing the Monitoring Program contained in Section 8 of the
MSHCP. The duties of the Monitoring Program Administrator are set
forth in Section 6.1.6 of the MSHCP.
11.2.10 MSHCP Reserve Management Unit Plan. As described in Section
6.2 of the MSHCP, the CVCC shall work with each RMUC to develop
a Reserve Management Unit Plan ("RMUP"). The RMUPs will define
specific management actions, schedules and responsibilities for Plan
implementation. The RMUPs shall be prepared within three (3) years of
Permit issuance and revised as necessary as lands are added to the
MSHCP Reserve System. The RMUPs shall contain, at a minimum, the
elements set forth in Section 6.2 of the MSHCP.
11.3 Changed Circumstances.
11.3.1 General Terms. Consistent with USFWS regulations regarding
Habitat Conservation Plan assurances, Section 6.8.3 of the MSHCP
identifies changes in the circumstances affecting the MSHCP Reserve
System and/or Covered Species which can be reasonably anticipated
and planned for in the MSHCP and describes the responses to such
changes that will be carried out by the Parties. Since the MSHCP
includes an Adaptive Management approach to reserve management,
changes over time and adaptive responses are already contemplated and
do not therefore require amendments to the MSHCP or the Permits. The
Parties agree that this Section and Section 6.8.3 of the MSHCP address
all reasonably foreseeable Changed Circumstances and describe
specific responses for them; other changes not identified as Changed
Circumstances will be treated as Unforeseen Circumstances.
11.3.2 Permittee-Initiated Response to Changed Circumstances.
Permittee(s) will give notice to the Wildlife Agencies within sixty (60)
calendar days after learning that any of the Changed Circumstances
listed in Section 6.8.3 of the MSHCP have occurred. As soon as
practicable thereafter, but no later than sixty (60) days after learning of
26
the Changed Circumstances, Permittee(s) will modify its/their activities
in the manner described in Section 6.8.3 of the MSHCP, to the extent
necessary to address the effects of the Changed Circumstances on the
Covered Species, and will report to the Wildlife Agencies on its/their
actions. Permittee(s) will undertake such modifications without
awaiting notice from the Wildlife Agencies.
11.3.3 Wildlife Agency -Initiated Response to Changed Circumstances. If
the Wildlife Agencies determine that Changed Circumstances have
occurred, they shall notify Permittee(s) in writing within sixty (60)
calendar days. Within sixty (60) days after receiving such notice,
Permittee(s) will begin implementation of the required changes and
report to the Wildlife Agencies on its/their actions. If the USFWS and/or
CDFW determine that Changed Circumstances have occurred and that
a Permittee has not responded in accordance with Section 6.8.3 of the
MSHCP, the Wildlife Agency or Agencies will so notify the affected
Permittee and the CVCC and will direct Permittee to make the required
changes.
11.3.4 Condemnation of Lands Providing Conservation Benefits. In the
event that an authority with eminent domain powers condemns part of
the lands to which the MSHCP's Conservation and mitigation measures
apply, the applicable Permittee shall seek full reimbursement for
fragmentation, and increased management and monitoring costs. The
applicable Permittee shall use all funds provided to the Permittee
through the condemnation proceedings to provide additional
Conservation and mitigation measures that will replace the
Conservation benefits that would have been provided by the condemned
lands.
11.3.5 New Listings of Species Not Covered by the MSHCP. The USFWS
or CDFW may list additional species under FESA and/or CESA as
threatened or endangered, delist species that are currently listed, or
declare listed species as extinct. In the event of a new listing of one or
more species not covered by the MSHCP, the following steps will be
taken.
If a species not covered by the MSHCP is listed as threatened or
endangered under FESA and/or CESA during the Permit application
process or during the life of the Permits, the USFWS and/or CDFW and
the Permittee(s) will identify actions that may cause Take, jeopardy or
adverse modification of Critical Habitat, and the Permittee(s) will avoid
such actions in the implementation of their Covered Activities until
approval of an amendment to the MSHCP to address the newly listed
species in accordance with the Modifications and Amendments
Procedures described in Section 6.12 of the MSHCP. Such avoidance
27
measures will include the following: 1) evaluation of applications for
proposed Covered Activities with respect to potential effects on the
newly listed species; such evaluations will include assessment of the
presence of suitable habitat for the newly listed species within the areas
potentially affected by the proposed Covered Activity and surveys for
the newly listed species, as appropriate, using accepted protocols; and
2) implementation of measures to avoid impacts to the newly listed
species based on the results of the data collected in item 1) above and
the evaluation of those data in the context of the design of the proposed
Covered Activity. Alternatively, a Plan amendment may not be pursued
and Take Authorization may be sought separately.
11.4 Annexation and Deannexation of Lands. Each of
the Permittees shall enforce the terms of the Plan, the Permits and
this Agreement as to all individuals or entities subject to its
jurisdiction, including lands in the Plan Area annexed into the
Permittees' jurisdictions after the Effective Date of this Agreement,
provided the Minor Amendment requirements of Section 6.12.3 of
the MSHCP and Section 20.4 of this Agreement have been met. If
the Minor Amendment requirements cannot be met, a Major
Amendment will be required.
In the event of the annexation or deannexation of any land within the Plan Area to
another jurisdiction that is not a Permittee, the Parties shall seek to enter into an agreement between
the Permittees, the Local Agency Formation Commission ("LAFCO"), the annexing or deannexing
jurisdiction and the Wildlife Agencies as part of the annexation process to ensure that any
Development of the annexed lands proceeds in accordance with the Conservation Goals and
Objectives of the MSHCP. If an agreement can be reached, that jurisdiction shall become a
Permittee after executing an addendum to this Agreement. If an agreement cannot be reached, or
if the MSHCP requirements are not imposed as a condition of annexation by LAFCO, then the
annexed or deannexed land will not receive Take Authorization pursuant to the Permits.
Additionally, such annexation or deannexation may result in the revocation or suspension of the
Permits pursuant to Section 23.5 of this Agreement. Parties within such annexed or deannexed
land that qualify as Participating Special Entities may receive Take Authorization as set forth in
Section 11.7 of this Agreement.
11.5 Incorporation of New Cities within MSHCP
Boundaries. The Parties anticipate that during the term of the
MSHCP, and after the Effective Date, one or more new cities may
be incorporated within the Plan Area. Such newly incorporated
cities, upon adoption of an appropriate Implementation Mechanism
and execution of an Implementing Agreement with the Wildlife
Agencies substantially similar in form to this Agreement, shall
receive Take Authorization pursuant to the Permits and all other
rights and obligations granted by the Permits, the MSHCP and this
Agreement. Incorporation of a new city within the Plan Area shall
constitute a Minor Amendment and shall be processed as such
pursuant to Section 20.4 of this Agreement and Section 6.12.3 of
the MSHCP. In the event a newly incorporated city fails to
participate in the MSHCP, the Permits may be revoked or
suspended as set forth in Section 23.5 of this Agreement.
Growth -Inducing Effects. Once mitigation has been imposed
upon the Permittees, Participating Special Entity, or Third Party
Granted Take Authorization for a proposed project in conformance
with the requirements of the MSHCP and the Permits, Permittees
shall not be required to provide or impose any additional mitigation
for any growth -inducing effects that such project may have on a
Covered Species and/or its Habitat within the Plan Area.
11.6 Participating Special Entity.
11.6.1 Take Authorization for Participating Special Entities. Any public
service provider, such as a utility company or a public district,
including, but not limited to, a school, water, or irrigation district, that
operates facilities and/or owns land within the Plan Area may request
Take Authorization for its activities pursuant to the Permits as a
Participating Special Entity. As set forth below, such activities must
comply with all of the terms and requirements of the Permits, the
MSHCP and this Agreement.
11.6.2 Grant of Take Authorization to Participating Special Entity. The
CVCC may grant Take Authorization to a Participating Special Entity
for its activities upon compliance with this Section. The Participating
Special Entity shall submit a complete application for the proposed
activity to the CVCC containing a detailed description of the proposed
activity, a map indicating the location of the proposed activity and an
analysis of its potential impacts to Covered Species and their Habitats
and to the MSHCP Reserve System.
Within thirty (30) days of receipt of the complete application, CVCC
and Wildlife Agency staff shall review the application. If CVCC staff,
with the concurrence of the Wildlife Agencies, finds that the proposed
activity complies with all terms and requirements of the MSHCP, the
Permits and this Agreement and does not compromise the viability of
the Permits or the MSHCP Reserve System, the CVCC shall issue a
Certificate of Inclusion upon completion or fulfillment in full of all
appropriate requirements as set forth below and the proposed activity
shall be deemed a Covered Activity. In the event the proposed activity
crosses the MSHCP Reserve System, CVCC staff must make a finding
supported by adequate evidence that the activity will result in a
biologically equivalent or superior alternative to the MSHCP Reserve
System prior to execution of a Certificate of Inclusion. The Certificate
of Inclusion shall depict on an attached map the lands by parcel number,
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acreage and owner to which the proposed Take Authorization(s) would
apply. In the event that the proposed activity does not comply with the
terms and requirements of the Permits, the MSHCP and this Agreement,
and/or compromises the viability of the MSHCP Reserve System,
CVCC and Wildlife Agency staff shall meet with the proposed
Participating Special Entity representatives to attempt to reach a
mutually agreeable solution.
Requirements for Participating Special Entities. In addition to
complying with applicable sections of the MSHCP, Participating
Special Entities shall also contribute to Plan implementation through
payment of a fee based upon the type of proposed activity, which shall
be applicable to all activities in the Plan Area. For regional utility
projects that will be constructed to serve Development, such as major
truck lines, Participating Special Entities shall pay a fee in the amount
of 5% of total capital costs or make other contributions to the Plan as
may be agreed to by the CVCC and the Wildlife Agencies. For such
activities that will result in only temporary impacts (impacts that
generally last for less than five years) and disturbance, Participating
Special Entities shall pay a fee in the amount of 3% of total capital costs
or other appropriate measures as may be agreed to by the CVCC and the
Wildlife Agencies. Additionally, the Participating Special Entities will
be charged appropriate administration fees to process the application.
Public district or agency projects that will be constructed to serve
Development, such as new schools and treatment plants, inside the
Conservation Areas shall be designed and implemented pursuant to the
requirements of Section 4.0 of the MSHCP and all other requirements
of the MSHCP, including payment of Local Development Mitigation
Fees as adopted for commercial and industrial Development. For such
activities outside of the Conservation Areas, contribution will consist of
payment of Local Development Mitigation Fees as adopted for
commercial and industrial Development and any other applicable
requirements. All fees shall be collected by, or submitted to, the CVCC.
All obligations must be satisfied prior to impacts to Covered Species
and their Habitats.
12. FUNDING OF THE MSHCP
The funding of the MSHCP, including financing of Reserve System Assembly, and
management and monitoring will occur pursuant to Section 5.0 of the MSHCP.
12.1 Local Obligations.
12.1.1 Local Permittee Additional Conservation Lands Obligations. As
described in Sections 4.2 and 5.1.1 of the MSHCP, Local Permittees are
responsible for the Conservation of 96,400 acres of Additional
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Conservation Lands (as of 2006). Approximately 88,900 acres will be
conserved through acquisition or other means. The projected cost in
2006 dollars for this acreage is approximately $301.5 million. The
related transaction costs for appraisals, escrow fees, etc. are estimated
to be approximately $15.1 million.
12.1.2 Administration Costs. The Local Permittees will be responsible for
certain Plan administration costs necessary to implement the terms and
conditions of the Plan, including staffing for the CVCC. As described
in Sections 5.1.2.3 and 5.1.3 of the MSHCP, the Local Permittee
obligation for Plan administration costs for the acquisition program is
approximately $493,000 in the first year, increasing by 3.29% annually
to offset inflation. Non -acquisition program administration costs are
estimated to be approximately $56,000 in the first year and
$115,414,000 over the life of the Plan.
12.1.3 Local Permittee Monitoring and Management Obligations. As
described in Sections 5 and 8 of the MSHCP, Local Permittees are
responsible under the Plan for monitoring, land management and
Adaptive Management costs on lands managed by the Local Permittees.
In addition, an endowment would be established to fund monitoring,
land management and Adaptive Management.
12.2 Local Funding Sources. The local funding
program will fund the Local Permittees' obligations under the
MSHCP as set forth in Section 5.2 of the Plan. The primary
components are as follows:
12.2.1 Local Development Mitigation Fees. As further described in Section
5.2.1.1 of the MSHCP, the County and the Cities shall adopt fee
ordinances establishing a Local Development Mitigation Fee to partially
fund Plan implementation. The projected revenues from the Local
Development Mitigation Fees are anticipated to be approximately $517
million over the first fifty (50) years of Plan implementation. The
County and the Cities shall transmit all collected Local Development
Mitigation Fees to the CVCC, at least quarterly, to be expended to fulfill
the terms of the MSHCP.
12.2.2 Transportation and Other Regional Infrastructure Project
Contribution. Permittees' transportation and other regional
infrastructure projects will contribute to Plan implementation. For
transportation infrastructure, the local funding program will provide
approximately $30 million in contribution from Measure A funds.
Additionally, CVWD will acquire 550 acres in the Thousand Palms
Conservation Area to mitigate for the Whitewater Flood Control project.
CVWD, IID, and MSWD will also make contributions to the
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management and monitoring endowment. These total contributions are
estimated at approximately $4,108,400. Other regional utility and local
public capital construction projects will mitigate their impacts, in whole
or in part, under the MSHCP through payment of a per -acre mitigation
fee or other appropriate method. As described in Section 6.6.2 of the
Plan, Caltrans will acquire or fund the acquisition of 5,791 acres.
Caltrans will also contribute $7.6 million to CVCC for monitoring,
management and Adaptive Management. Caltrans and CVAG will also
acquire 1,795 acres as mitigation for freeway interchanges and
associated arterials and contribute $1,077,000 towards monitoring,
management and Adaptive Management endowment fund.
12.2.3 Landfill Tipping Fees. Landfill tipping fees in the Plan Area are
estimated to generate approximately $575,000 in 2006 from County
landfills, with a projected rate increase of 4% annually thereafter.
12.2.4 Eagle Mountain Landfill Environmental Mitigation Trust Fund.
Eagle Mountain Landfill tipping fees are estimated to generate $228
million dollars over the next seventy-five (75) years. Should the
availability of this funding source become unreliable, Section 5.2.2.4 of
the MSHCP provides potential alternative funding sources.
12.2.5 Additional Funding. As further described in Section 5.2.1.6 of the
MSHCP, the Parties shall seek additional funding from private, local,
state and federal sources including grants. Additionally, funds may be
received from Participating Special Entities. In addition, should certain
funding sources become unreliable, Section 5.2.2.4 of the MSHCP
provides potential alternative funding sources.
12.3 Annual Evaluation of Funding. On an annual
basis, the Permittees and the Wildlife Agencies will evaluate the
performance of the funding mechanisms and develop any necessary
modifications to address possible shortfalls. Additionally, this
annual evaluation will include an assessment of the funding plan
and anticipate funding needs over the next eighteen (18) months for
the purpose of identifying any potential deficiencies in cash flow.
If deficiencies are identified through this evaluation, the Permittees
and the Wildlife Agencies will develop strategies to address any
additional funding needs consistent with the terms and conditions
of the Plan. Additional funding needs will be addressed as set forth
in Section 5.2.2 of the MSHCP.
13. PERMITTEES' TAKE AUTHORIZATION AND OBLIGATIONS
13.1 Permittees' Take Authorization. Each Permittee
may engage in, and receive Take Authorization for, Covered
Activities as set forth in Section 7 of the MSHCP. The County and
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Cities may also confer Take Authorization and approve projects
proposed within their respective jurisdictions, as set forth in
Sections 7.1 and 7.2 of the MSHCP. The County, Cities and the
CVCC may also confer Take Authorization through the issuance of
a Certificate of Inclusion or other written mechanism or instrument
as set forth in Section 11.7 of this Agreement.
13.2 County and Cities Obligations. The County and
the Cities have the following obligations under the MSHCP and
this Agreement:
A. Adopt and maintain ordinances or resolutions as necessary, and amend their
general plans as appropriate, to implement the requirements and to fulfill
the purposes of the Permits, the MSHCP and this Agreement for private and
public projects. Such requirements and policies include: 1) compliance
with relevant processes to ensure application of the Conservation Area
requirements set forth in Section 4.0 of the MSHCP and thus, satisfaction
of the local acquisition obligation; 2) require compliance with the applicable
Land Use Adjacency Guidelines set forth in Section 4.5 of the MSHCP; 3)
maintain a record of total acres developed and their location within its
jurisdiction and transmit such information monthly to the CVCC; 4) convey
any changes in County or city boundaries or general plan land use
designations to CVCC at the end of each calendar year; 5) ensure
compliance with the Avoidance, Minimization and Mitigation Measures in
Section 4.4 of the MSHCP; 6) ensure implementation consistent with the
Species Conservation Goals and Objectives in Section 9 of the MSHCP;
and 7) permanently protect and manage Mitigation Land within the reserve
system legally owned and/or controlled by the entity unless conveyed to the
CVCC.
B. Transmit any collected Local Development Mitigation Fees, other
appropriate fees and associated interest as described in Section 5.2.1.1 of
the MSHCP to the CVCC at least quarterly.
C. Contribute appropriate mitigation as determined by the affected Permittee
for County and City public projects, including, but not limited to, any one
or any combination of the following: 1) acquisition of replacement habitat
at a 1:1 ratio that is biologically equivalent or superior to the property being
disturbed; or 2) payment of the Local Development Mitigation Fees as
established for commercial and industrial Development. Such contributions
shall occur prior to impacts to Covered Species and their Habitats.
D. Participate as a member agency in the CVCC as set forth in Section 6.1.1
of the MSHCP.
E. Participate as a member of the RMOC as set forth in Section 6.1.3 of the
MSHCP, as appropriate.
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F. Participate in the Joint Project Review Process set forth in Section 6.6.1.1
of the MSHCP for projects in the Conservation Areas.
G. Take all necessary and appropriate actions, following applicable land use
permit enforcement procedures and practices, to enforce the terms of project
approvals for public and private projects, including compliance with the
MSHCP, the Permits and this Agreement.
H. Manage MSHCP Reserve System lands or conservation easements owned
or leased by the County or respective City pursuant to Sections 8 and 9 of
the MSHCP.
I. Carry out all other applicable requirements of the MSHCP, this Agreement
and the Permits. Notwithstanding the foregoing, nothing within this
Agreement shall be construed to require the County or the Cities to provide
funding, or any other form of compensation, beyond the fees collected or
dedicated lands required pursuant to the Permits, this Agreement and the
MSHCP or other mitigation agreed to by the appropriate Parties.
13.3 CVCC Obligations. CVCC has the following
obligations under the MSHCP and this Agreement:
A. Implement the necessary requirements to fulfill the purposes of the Permits,
the MSHCP and this Agreement, for projects for which it issues Take
Authorization such as for Participating Special Entities. Such requirements
include: 1) ensuring compliance with relevant processes to ensure
application of the Conservation Area requirements set forth in Section 4 of
the MSHCP; 2) ensuring compliance with the applicable Land Use
Adjacency Guidelines as set forth in Section 4.5 of the MSHCP; 3)
compliance with the Avoidance, Minimization and Mitigation Measures in
Section 4.4 of the MSHCP; 4) ensure implementation consistent with the
Species Conservation Goals and Objectives in Section 9 of the MSHCP;
and 5) permanently protect and manage Mitigation Land within the reserve
system legally owned and/or controlled by the entity unless conveyed to the
CVCC.
B. Administer and oversee implementation of the MSHCP as set forth in
Section 6.1 of the MSHCP.
C. Collect and expend Local Development Mitigation Fees and other
applicable funds as described in Section 5 of the MSHCP.
D. Transfer Take Authorization to Participating Special Entities pursuant to
Section 11.7 of this Agreement.
E. Accept and manage MSHCP Reserve System property including
conservation easements that have been conveyed to it by the County, Cities
34
or other entity, agency or individual, pursuant to Section 6.1.1.2 of the
MSHCP.
F. Ensure compliance with the Conservation Objectives set forth in Section
4.3.7 of the MSHCP.
G. Carry out all other applicable requirements of the MSHCP, this Agreement,
and the Permits. Notwithstanding the foregoing, nothing within this
Agreement shall be construed to require the CVCC to provide funding, or
any other form of compensation, beyond the fees collected or dedicated
lands required pursuant to the Permits, this Agreement and the MSHCP.
13.4 CVAG Obligations. CVAG has the following
obligations under the MSHCP and this Agreement:
A. Implement the necessary requirements to fulfill the purposes of the Permits,
the MSHCP and this Agreement for its Covered Activities.
B. Contribute $30 million from Measure A or other funds as set forth in Section
6.6.1 of the Plan.
C. Carry out all other applicable requirements of the MSHCP, this Agreement
and the Permits. Notwithstanding the foregoing, nothing within this
Agreement shall be construed to require CVAG to provide funding, or any
other form of compensation, beyond the fees collected or dedicated lands
required pursuant to the Permits, this Agreement and the MSHCP or other
funding mechanisms identified in the Plan.
13.5 County Flood Control Obligations. County Flood
Control has the following obligations under the MSHCP and this
Agreement:
A. Implement the necessary requirements to fulfill the purposes of the Permits,
the MSHCP and this Agreement for its Covered Activities. Such
requirements include: 1) compliance with relevant processes and measures
to ensure application of the Conservation Area requirements set forth in
Section 4 of the MSHCP; 2) compliance with the applicable Land Use
Adjacency Guidelines as set forth in Section 4.5 of the MSHCP; 3)
compliance with the Avoidance, Minimization and Mitigation Measures in
Section 4.4 of the MSHCP; 4) ensure implementation consistent with the
Species Conservation Goals and Objectives in Section 9 of the MSHCP;
and 5) permanently protect and manage Mitigation Land within the reserve
system legally owned and/or controlled by the entity unless conveyed to the
CVCC.
B. Contribute mitigation through payment of 3% of total capital costs for its
Covered Activities. Such payment may be offset through acquisition of
replacement Habitat or creation of new Habitat for the benefit of Covered
35
Species, as appropriate. Such mitigation shall be implemented prior to
impacts to Covered Species and their Habitats. This provision does not
apply to O&M activities.
C. Manage land owned or leased within the MSHCP Reserve System that has
been set aside for Conservation purposes in accordance with Sections 8 and
9 of the MSHCP.
D. Participate in the Joint Project Review Process for its projects within the
Conservation Areas as described in Section 6.6.1.1 of the Plan.
E. Carry out all other applicable requirements of the MSHCP, this Agreement
and the Permits. Notwithstanding the foregoing, nothing in this Agreement
shall be construed to require County Flood Control to provide funding, or
any other form of compensation, beyond the fees collected, mitigation
payments of 3% of capital costs pursuant to Section 13.5 above, dedicated
lands required pursuant to the Permits or other MSHCP requirements, this
Agreement and the MSHCP.
13.6 County Parks Obligations. County Parks has the
following obligations under the MSHCP and this Agreement:
A. Implement the necessary requirements to fulfill the purposes of the Permits,
the MSHCP and this Agreement for its Covered Activities. Such
requirements include: 1) compliance with relevant processes and measures
to ensure application of the Conservation Area requirements set forth in
Section 4.0 of the MSHCP; 2) compliance with the applicable Land Use
Adjacency Guidelines as set forth in Section 4.5 of the MSHCP; 3)
compliance with the Avoidance, Minimization and Mitigation Measures in
Section 4.4 of the MSHCP; 4) ensure implementation consistent with the
Species Conservation Goals and Objectives in Section 9 of the MSHCP;
and 5) permanently protect and manage Mitigation Land within the reserve
system legally owned and/or controlled by the entity unless conveyed to the
CVCC.
B. Contribute appropriate mitigation as determined by County Parks for its
projects, including, but not limited to, any one or any combination of the
following: 1) acquisition of replacement habitat at a 1:1 ratio that is
biologically equivalent or superior to the property being disturbed; or 2)
payment of the Local Development Mitigation Fees as established for
commercial and industrial Development. Such contribution shall occur
prior to impacts to Covered Species and their Habitats.
C. Manage and monitor land owned or leased within the MSHCP Reserve
System that has been set aside for Conservation purposes in accordance with
Sections 8 and 9 of the MSHCP.
36
D. Participate in the Joint Project Review Process for its projects, if any, within
the Conservation Areas as described in Section 6.6.1.1 of the Plan.
E. Carry out all other applicable requirements of the MSHCP, this Agreement
and the Permits. Notwithstanding the foregoing, nothing in this Agreement
shall be construed to require County Parks to provide funding, or any other
form of compensation, beyond the fees collected or dedicated lands required
pursuant to the Permits or other MSHCP requirements, this Agreement and
the MSHCP.
13.7 County Waste Obligations. County Waste has the
following obligations under the MSHCP and this Agreement:
A. Implement the necessary requirements to fulfill the purposes of the Permits,
the MSHCP and this Agreement for its Covered Activities. Such
requirements include: 1) compliance with relevant processes and measures
to ensure application of the Conservation Area requirements set forth in
Section 4.0 of the MSHCP; 2) compliance with the applicable Land Use
Adjacency Guidelines as set forth in Section 4.5 of the MSHCP; 3)
compliance with the Avoidance, Minimization and Mitigation Measures in
Section 4.4 of the MSHCP; 4) ensure implementation consistent with the
Species Conservation Goals and Objectives in Section 9 of the MSHCP;
and 5) permanently protect and manage Mitigation Land within the reserve
system legally owned and/or controlled by the entity unless conveyed to the
CVCC.
B. Manage and monitor land owned within the MSHCP Reserve System that
has been set aside for Conservation purposes in accordance with Sections 8
and 9 of the MSHCP.
C. Participate in the Joint Project Review Process for its projects, if any, within
the Conservation Areas as described in Section 6.6.1.1 of the Plan.
D. Carry out all other applicable requirements of the MSHCP, this Agreement,
and the Permits. Notwithstanding the foregoing, nothing within this
Agreement shall be construed to require County Waste to provide funding,
or any other form of compensation, beyond the requirements of the Permits,
this Agreement and the MSHCP.
13.8 CVWD Obligations. CVWD has the following
obligations under the MSHCP and this Agreement:
A. Implement the necessary requirements to fulfill the purposes of the Permits,
the MSHCP and this Agreement, for its Covered Activities. Such
requirements include: 1) compliance with relevant processes and measures
to ensure application of the Conservation Area requirements set forth in
Section 4.0 of the MSHCP; 2) compliance with the applicable Land Use
Adjacency Guidelines as set forth in Section 4.5 of the MSHCP; 3)
37
compliance with the Avoidance, Minimization and Mitigation Measures in
Section 4.4 of the MSHCP; 4) ensure implementation consistent with the
Species Conservation Goals and Objectives in Section 9 of the MSHCP;
and 5) permanently protect and manage Mitigation Land within the reserve
system legally owned and/or controlled by the entity unless conveyed to the
CVCC.
B. As set forth in Section 6.6.1 of the Plan, cooperate with CVCC towards
Conservation of a portion of the 7,000 acres CVWD owns in the
Conservation Area.
C. Contribute $3,583,400 towards the Endowment Fund for the Monitoring
Program, the Management Program and Adaptive Management.
D. Additional contributions as set forth in the Plan.
E. Participate as a member of the CVCC as set forth in Section 6.1.1 of the
MSHCP.
F. Participate in the Joint Project Review Process for its projects within the
Conservation Areas as described in Section 6.6.1.1 of the Plan.
G. Carry out all other applicable requirements of the MSHCP, this Agreement,
and the Permits. Notwithstanding the foregoing, nothing within this
Agreement shall be construed to require CVWD to provide funding, or any
other form of compensation, beyond the requirements of the Permits, this
Agreement and the MSHCP.
13.9 IID Obligations. IID has the following obligations
under the MSHCP and this Agreement:
A. Implement the necessary requirements to fulfill the purposes of the Permits,
the MSHCP and this Agreement for its Covered Activities. Such
requirements include: 1) compliance with relevant processes and measures
to ensure application of the Conservation Area requirements set forth in
Section 4 of the MSHCP; 2) compliance with the applicable Land Use
Adjacency Guidelines as set forth in Section 4.5 of the MSHCP; 3)
compliance with the Avoidance, Minimization and Mitigation Measures in
Section 4.4 of the MSHCP; 4) ensure implementation consistent with the
Species Conservation Goals and Objectives in Section 9 of the MSHCP;
and 5) permanently protect and manage Mitigation Land within the reserve
system legally owned and/or controlled by the entity unless conveyed to the
CVCC.
B. As set forth in Section 6.6.1 of the Plan, cooperate with CVCC towards the
Conservation of a portion of the land it owns in the Conservation Areas.
C. Contribute $525,000 towards the Endowment Fund for the Monitoring
Program, the Management Program and Adaptive Management.
D. Participate as a member of the CVCC as set forth in Section 6.1.1.1 of the
MSHCP.
E. Participate in the Joint Project Review Process for its projects within the
Conservation Areas as described in Section 6.6.1.1 of the Plan.
F. Carry out all other applicable requirements of the MSHCP, this Agreement,
and the Permits. Notwithstanding the foregoing, nothing within this
Agreement shall be construed to require IID to provide funding, or any other
form of compensation, beyond the requirements of the Permits, this
Agreement and the MSHCP.
13.10 Caltrans Obligations. Caltrans has the following
obligations under the MSHCP and this Agreement:
A. Implement the necessary requirements to fulfill the purposes of the Permits,
the MSHCP and this Agreement for its Covered Activities. Such
requirements include: 1) compliance with relevant processes and measures
to ensure application of the Conservation Area requirements set forth in
Section 4 of the MSHCP; 2) compliance with the applicable Land Use
Adjacency Guidelines as set forth in Section 4.5 of the MSHCP; 3)
compliance with the Avoidance, Minimization and Mitigation Measures in
Section 4.4 of the MSHCP; 4) ensure implementation consistent with the
Species Conservation Goals and Objectives in Section 9 of the MSHCP;
and 5) permanently protect and manage Mitigation Land within the reserve
system legally owned and/or controlled by the entity unless conveyed to the
CVCC.
B. As set forth in Section 6.6.2 of the Plan, acquire and convey to CVCC or
provide funding to the CVCC sufficient to acquire 5,791 acres of Additional
Conservation Lands in the Conservation Areas as a contribution to Plan
implementation for the Covered Activities described in Section 7.2.2 of the
Plan. Within five (5) years of Permit issuance, Caltrans will provide $7.6
million to CVCC for the monitoring, management, and Adaptive
Management of the 5,791 acres.
C. Within one year of Permit issuance, CVCC and Caltrans shall prepare an
agreement that specifies that if the MSHCP Permits are ever revoked, a
conservation bank shall be established whereby the contributed lands are
conveyed to CDFW with an endowment sufficient to provide for the
permanent monitoring, land management, and Adaptive Management of the
land. CVCC, the Wildlife Agencies, and Caltrans will enter into a
Conservation Bank Agreement once a portion or all of the 5,791 acres are
acquired.
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D. As described in Section 6.6.1 of the Plan, cooperate with CVAG and CVCC
in the acquisition of 1,795 acres to mitigate the interchange and associated
arterial projects, and the contribution of $1,077,000 to the endowment for
the Monitoring Program, Management Program, and Adaptive
Management of those lands.
E. Carry out all other applicable requirements of the MSHCP, this Agreement,
and the Permits.
13.11 State Parks Obligations. State Parks has the
following obligations under the MSHCP and this Agreement:
A. Implement the necessary requirements to fulfill the purposes of the Permits,
the MSHCP and this Agreement for its Covered Activities. Such
requirements include: 1) compliance with relevant processes and measures
to ensure application of the Conservation Area requirements set forth in
Section 4 of the MSHCP; 2) compliance with the applicable Land Use
Adjacency Guidelines as set forth in Section 4.5 of the MSHCP; 3)
compliance with the Avoidance, Minimization and Mitigation Measures in
Section 4.4 of the MSHCP; 4) ensure implementation consistent with the
Species Conservation Goals and Objectives in Section 9 of the MSHCP;
and 5) permanently protect and manage Mitigation Land within the reserve
system legally owned and/or controlled by the entity unless conveyed to the
CVCC.
B. As set forth in Section 6.6.2 of the Plan, prior to construction of camping,
trailhead, and trail facilities as a Covered Activity in the Indio Hills/Joshua
Tree National Park Linkage Conservation Area, acquire a minimum of 640
acres in the Conservation Area, of which a maximum of 100 acres may be
developed as a Covered Activity. Development of the camping and
trailhead facility must be consistent with the Conservation Objectives for
the Conservation Area.
C. Carry out all other applicable requirements of the MSHCP, this Agreement,
and the Permits.
13.12 CVMC Obligations. CVMC has the following
obligations under the MSHCP and this Agreement:
A. Implement the necessary requirements to fulfill the purposes of the Permits,
the MSHCP and this Agreement for its Covered Activities, if any. Such
requirements include: 1) compliance with relevant processes and measures
to ensure application of the Conservation Area requirements set forth in
Section 4 of the MSHCP; 2) compliance with the applicable Land Use
Adjacency Guidelines as set forth in Section 4.5 of the MSHCP; 3)
compliance with the Avoidance, Minimization and Mitigation Measures in
Section 4.4 of the MSHCP; 4) ensure implementation consistent with the
M
Species Conservation Goals and Objectives in Section 9 of the MSHCP;
and 5) permanently protect and manage Mitigation Land within the reserve
system legally owned and/or controlled by the entity unless conveyed to the
CVCC.
B. Manage easements and land owned or leased within the MSHCP Reserve
System that have been set aside for Conservation purposes in accordance
with Sections 8 and 9 of the MSHCP.
C. Carry out all other applicable requirements of the MSHCP, this Agreement,
and the Permits. Notwithstanding the foregoing, nothing within this
Agreement shall be construed to require CVMC to provide funding, or any
other form of compensation, beyond the fees collected or dedicated lands
required pursuant to the Permits, this Agreement and the MSHCP.
13.13 MSWD Obligations. MSWD has the following
obligations under the MSHCP and this Agreement:
A. Implement the necessary requirements to fulfill the purposes of the Permits,
the MSHCP and this Agreement for its Covered Activities, if any. Such
requirements include: 1) compliance with relevant processes and measures
to ensure application of the Conservation Area requirements set forth in
Section 4 of the MSHCP; 2) compliance with the applicable Land Use
Adjacency Guidelines as set forth in Section 4.5 of the MSHCP; 3)
compliance with the Avoidance, Minimization and Mitigation Measures in
Section 4.4 of the MSHCP; 4) ensure implementation consistent with the
Species Conservation Goals and Objectives in Section 9 of the MSHCP;
and 5) permanently protect and manage Mitigation Land within the reserve
system legally owned and/or controlled by the entity unless conveyed to the
CVCC.
B. As set forth in Section 6.6.1 of the MSHCP, cooperate with CVCC towards
Conservation of a portion of the 61 acres MSWD owns in the Conservation
Area.
C. Contribute $350,000 towards the Endowment Fund for the Monitoring
Program, the Management Program and Adaptive Management.
D. Additional non -monetary contributions as set forth in Section 5.1.8 MSWD
Responsibilities (page 5-8 to 5-9) and Section 6.6.1 Obligations of the Local
Permittees, page 6-20 and Section 6.6.1 under subheading Additional
MSWD Contributions, numbered items 2, 5, and 6 (page 6-21 to 6-22) of
the MSHCP.
E. Participate as a member of the CVCC as set forth in Section 6.1.1 of the
MSHCP.
41
F. Participate in the Joint Project Review Process for its projects within the
Conservation Areas as described in Section 6.6.1.1 of the Plan.
G. Carry out all other applicable requirements of the MSHCP, this Agreement,
and the Permits. Notwithstanding the foregoing, nothing within this
Agreement shall be construed to require MSWD to provide funding, or any
other form of compensation, beyond the requirements of the Permits, this
Agreement and the MSHCP.
14. USFWS OBLIGATIONS AND ASSURANCES
14.1 Take Authorization for Covered Activities.
Upon execution of this Agreement by all Parties, and satisfaction
of all other applicable legal requirements, the USFWS will issue
Permittees a permit under section 10(a)(1)(13) of FESA authorizing
incidental Take by Permittees of the Covered wildlife Species
resulting from Covered Activities within the Plan Area, subject to
and in accordance with, the MSHCP, the Permits and this
Agreement.
14.2 USFWS Findings - Covered Species. The
USFWS has found, following opportunity for public comment,
that: 1) the taking of Covered Species within the Plan Area in
accordance with the MSHCP as implemented will be incidental to
the carrying out of otherwise lawful activities; 2) the MSHCP as
implemented will, to the maximum extent practicable, minimize
and mitigate the impacts of such incidental taking; 3) the funding
sources identified and provided for herein will ensure that adequate
funding for the MSHCP will be provided; 4) the requested taking
of Covered wildlife Species will not appreciably reduce the
likelihood of survival and recovery of such species in the wild; and
5) the MSHCP, as implemented, will satisfy and fulfill all measures
agreed upon by the Parties for the purposes of the MSHCP
(including procedures determined by the USFWS to be necessary
to address Unforeseen Circumstances).
14.3 Section 10(a) Permit Coverage. The Section 10(a)
Permit will identify all Covered Species. The Permit will take
effect for FESA listed Covered Species at the time that the Section
10(a) Permit is issued. For currently Unlisted Species, the Permit
will take effect when such species are Listed.
14.4 Implementation Assistance. Subject to Section
27.10 of this Agreement, USFWS shall provide staff to serve on all
appropriate committees and shall ensure, to the extent possible,
staff participation in discussions and meetings with the other
Parties to ensure that the implementation of this Agreement is
42
consistent with any findings upon which the Section 10(a) Permit
is based. In the event that other habitat conservation plans are
proposed within the boundaries of the MSHCP, the USFWS will
require the proponents to consult with the CVCC during the
development of the habitat conservation plan or prior to completion
of the Section 7 consultation process. The USFWS shall, to the
extent appropriate, cooperate with the Permittees in obtaining
additional funding from sources including, but not limited to,
existing and future state and federal grant programs and existing
and future bond issues.
14.5 Assurances Regarding MSHCP. After
opportunity for public review and comment, based on the best
available current scientific and commercial data, the USFWS has
found that the MSHCP, as implemented by this Agreement: 1) is
consistent with and will complement other applicable Conservation
planning and regulatory programs and efforts addressing wildlife
within the region, 2) minimizes and mitigates the potential
significant adverse impacts of the Covered Activities on the
Covered Species, 3) will ensure that the measures agreed upon by
the Permittees and the USFWS will be met, and 4) will be
implemented. The USFWS shall not take a position inconsistent
with the acknowledgments set forth in this Section, including,
without limitation, in the form of comments offered by the USFWS
in the context of any CEQA or NEPA process associated with
approvals for Covered Activities, with regard to effects on Covered
Species.
14.6 Take Authorization for Newly Regulated
Covered Species; Savings Provision. Subject to compliance with
all other terms of this Agreement, the Section 10(a) Permit will
automatically become effective for each Unlisted Covered Species
upon the listing of such species as endangered or threatened under
FESA. If it is judicially determined that the USFWS was not
authorized to cause the Section 10(a) Permit to become effective
automatically as to Covered Species as they become listed pursuant
to FESA, the USFWS shall accept the minimization and mitigation
measures in the MSHCP and this Agreement as the basis for an
application for a section 10(a) amendment or separate Section 10(a)
Permits, MBTA Permits, and/or other Take Authorizations. The
USFWS shall use reasonable efforts to review and process the
application expeditiously so as to ensure, provided the Permit
amendment or application meets the requirements of FESA and
other applicable federal laws, that the Take Authorization is
effective concurrently with the listing of the Covered Species under
FESA. In issuing such Permits, amendments and/or Take
Authorizations, and to the extent that such judicial determination
43
creating the circumstances requiring such additional review and
processing allows, the USFWS shall not request, impose,
recommend or require further mitigation, Conservation,
compensation, enhancement or other protection for such Covered
Species except as expressly provided in this Agreement.
14.7 Changes in the Environmental Laws. It is
acknowledged and agreed by the USFWS that the Permittees are
agreeing to perform substantial avoidance, minimization,
mitigation, Conservation and management measures as set forth in
this Agreement. If a change in, or an addition to, any federal law
governing or regulating the impacts of Development on land, water
or biological resources as they relate to Covered Species, including,
but not limited to, FESA and NEPA, the USFWS shall give due
consideration to the measures required under the MSHCP in
applying the new laws and regulations to the Permittees.
14.8 Section 7 Consultations. The USFWS will
evaluate the direct, indirect, and cumulative effects of the Covered
Activities in its internal FESA biological opinion issued in
connection with the MSHCP and issuance of the Section 10(a)
Permit. As a result, and to the maximum extent allowable, in any
consultation under section 7 of FESA subsequent to the Effective
Date involving the Permittee(s) or entity with Third Party Take
Authorization with regard to Covered Species and Covered
Activities, the USFWS shall ensure that the FESA biological
opinion issued in connection with the proposed project that is the
subject of the consultation is consistent with the internal FESA
biological opinion. Such projects must be consistent with the terms
and conditions of the MSHCP and this Agreement. Any terms and
conditions included under the reasonable and prudent measures of
a FESA biological opinion issued subsequent to the Effective Date
with regard to the Covered Species and Covered Activities shall, to
the maximum extent appropriate, be consistent with the
implementation measures of the MSHCP and this Agreement. The
USFWS shall not impose measures in excess of those that have
been or will be required by the Permittee(s) or entity with Third
Party Take Authorization pursuant to the MSHCP and this
Agreement. The USFWS shall process subsequent FESA
consultations for Covered Activities in accordance with the process
and time periods set forth in 50 Code of Federal Regulations,
section 402.14. The Parties agree that this section does not create
an independent cause of action.
14.9 Critical Habitat Designation for Covered
Species. The USFWS acknowledges and agrees that the MSHCP
and this Agreement provide a comprehensive, habitat -based
approach to the protection of Covered Species by focusing on the
lands essential for the long-term Conservation of the Covered
Species and appropriate management for those lands. This
approach is consistent with the overall purposes of FESA to
provide a means whereby the ecosystems upon which endangered
and threatened species depend may be conserved. FESA
regulations specify that the criteria to be used in designating critical
habitat include "those physical and biological features that are
essential to the Conservation of a given species and that may
require special management considerations or protection." (50
C.F.R. § 424.12(b).)
The MSHCP and this Agreement provide for the protection of those physical and
biological features essential to the Conservation of the Covered Species in a manner consistent
with USFWS regulations concerning the designation of Critical Habitat. The USFWS agrees that,
to the maximum extent allowable after public review and comment, in the event that a Critical
Habitat determination is made for any Covered Species, and unless the USFWS finds that the
MSHCP is not being implemented, lands within the boundaries of the MSHCP will not be
designated as Critical Habitat. In addition, if Critical Habitat is designated within the MSHCP
boundaries, pursuant to Section 14.11 of this Agreement and except as expressly provided in
Section 14.11 of this Agreement and Section 6.8 of the MSHCP regarding Unforeseen
Circumstances, no subsequent evaluation of the Covered Species, nor any mitigation,
compensation, Conservation enhancement or other protective measures other than those set forth
in the MSHCP will be required. Moreover, to the maximum extent allowable after public review
and comment, the USFWS agrees to reassess and revise the boundaries of existing designated and
proposed Critical Habitat of Covered Species within the MSHCP boundaries after its approval,
although the Parties recognize that funding constraints may influence the timing of such regulatory
action.
14.10 Future Recovery Plans. Recovery plans under
FESA delineate actions necessary to recover and protect federally
Listed Species. These plans frequently include information, or may
lead to the development of information, that can contribute to the
development of an adaptive management program. However,
recovery plans do not obligate any Permittee, individual or entity
to undertake specific tasks.
The Parties acknowledge that FESA recovery plans have no effect on the
implementation of this MSHCP, except to the extent that they may contribute information to, or
assist in achieving the goals of, the Management Program. Any recovery plan applicable to any
Covered Species found in the Plan Area that is developed after the Effective Date shall:
A. Not require any additional land or financial compensation by Permittees;
45
B. Be finalized only after the USFWS has consulted with and requested input
from the CVCC and made reasonable attempts to give notice to Plan
Participants of the preparation of the recovery plan; and
C. Not in any way diminish the Take Authorization for Covered Species
granted to Permittees pursuant to the MSHCP, this Agreement, or the
Section 10(a) Permit.
14.11 No Surprises Assurances and Unforeseen
Circumstances.
14.11.1 No Surprises Assurances. The USFWS has promulgated the Habitat
Conservation Plan Assurances Rule, published in the Federal Register
on February 23, 1998 (63 Federal Register 8859), and codified at
50 Code of Federal Regulations, sections 17.3, 17.22(b) and 17.32(b)
("No Surprises Rule").
14.11.2 Pursuant to the No Surprise Rule, the assurances by the USFWS in this
Section shall apply so long as the commitments and provisions of the
MSHCP, this Agreement and the Section 10(a) Permit are properly
implemented.
14.11.3 As set forth in Section 6.8.1 of the MSHCP, pursuant to the No Surprises
Rule, as long as the MSHCP is being properly implemented, the
USFWS will not require from Permittees, Third Parties Granted Take
Authorization, Participating Special Entities or other individuals or
entities receiving Take Authorization under the Permits the commitment
of additional land, or financial compensation or additional restrictions
on the use of land or other natural resources with regard to Covered
Activities and their impact on the Covered Species beyond the level
and/or amounts specified in the MSHCP, the Permits and this
Agreement.
14.11.4 As set forth in Section 6.8.1 of the MSHCP, pursuant to the No Surprises
Rule, the USFWS has the burden of making a finding that Unforeseen
Circumstances exist with regard to any Covered Species, using the best
scientific and commercial data available. The findings must be clearly
documented and based upon reliable technical information regarding the
status and habitat requirements of the affected species. In deciding
whether any Unforeseen Circumstances exist, the USFWS shall
consider, but not be limited to the following factors:
A. The extent of the current range of the Covered Species;
B. The percentage of the range of Covered Species and Habitat that
has been adversely affected by the Covered Activities;
C. The percentage of the range of the Covered Species and Habitat
that has been conserved by the MSHCP;
D. The ecological significance of that portion of the range or
Habitat of the Covered Species;
E. The level of knowledge about the Covered Species and Habitat
and the degree of specificity of the species Conservation
program under the MSHCP; and
F. Whether failure to adopt additional Conservation measures
would appreciably reduce the likelihood of survival and
recovery of the Covered Species in the wild.
14.11.5 In the event the USFWS makes a finding of Unforeseen Circumstances
and such Unforeseen Circumstances warrant the requirement of
additional mitigation, enhancement or compensation measures, any
such additional measures shall be restricted to modification of the
management of the MSHCP Reserve System, and shall be the least
burdensome measures available to address the Unforeseen
Circumstances.
14.11.6 Changed Circumstances, as described in 50 Code of Federal
Regulations section 17.22(b)(5)(i), are adequately addressed in Section
6.8.3 of the MSHCP, and Permittees shall implement any measures for
such circumstances as called for in the MSHCP, as described in Section
11.3 of this Agreement.
14.12 Migratory Bird Treaty Act. The Section 10(a)
Permit shall constitute a Special Purpose Permit under 50 Code of
Federal Regulations section 21.27, for the Take of Covered Species
listed under FESA and which are also listed under the MBTA (16
U.S.C. §§ 703-712), in the amount and/or number specified in the
MSHCP, subject to the terms and conditions specified in the
Section 10(a) Permit. Any such Take will not be in violation of the
MBTA. The MBTA Special Purpose Permit will extend to
Covered Species listed under FESA and also under the MBTA after
the Effective Date of the Section 10(a) Permit. This Special
Purpose Permit shall be valid for a period of three (3) years from
its Effective Date, provided the Section 10(a) Permit remains in
effect for such period. The Special Purpose Permit shall be
renewed pursuant to the requirements of the MBTA, provided the
Permittees remain in compliance with the terms of this Agreement
and the Section 10(a) Permit. Each such renewal shall be valid for
a period of three (3) years, provided that the Section 10(a) Permit
remains in effect for such period.
47
14.13 Management of Land. USFWS agrees to manage
its land within the MSHCP Reserve System pursuant to the
provisions of the Plan.
15. CDFW OBLIGATIONS AND ASSURANCES
15.1 Issuance of NCCP Permit.
15.1.1 Concurrent with the execution of this Agreement, CDFW has issued an
NCCP Permit to the Permittees authorizing the Take of Covered
Species, subject to and in accordance with the MSHCP and this
Agreement.
15.1.2 Except as set forth in Section 15.5 of this Agreement, as to each Covered
Species, including both Listed and Unlisted Species, that Take
Authorization shall become effective upon issuance of the NCCP
Permit.
15.2 NCCP Permit Findings. In separate findings,
CDFW has found, following opportunity for public comment, that
the MSHCP and this Agreement: 1) adequately provide for the
Conservation and management of the Covered Species and their
Habitat within the MSHCP and 2) satisfy all legal requirements
under the NCCP Act necessary for CDFW to issue an NCCP Permit
for such species. CDFW has found that the MSHCP meets the
requirements of the NCCP Act for an NCCP Plan, and has
approved the MSHCP as an NCCP Plan. In separate findings,
CDFW has further found that the MSHCP and this Agreement
adequately provide for the mitigation of potential "significant
effects on the environment" (as defined in California Public
Resources Code section 21068) which may result to Covered
Species and their Habitat from the Covered Activities in the Plan
Area.
15.3 State Assurances. Except for the provisions in
Section 15.5, provided Permittees are implementing the terms and
conditions of the MSHCP, this Agreement and the Permits, if there
are Unforeseen Circumstances, CDFW shall not require additional
land, water or financial compensation or additional restrictions on
the use of land, water or other natural resources for the life of the
NCCP Permit without the consent of the Permittees, unless CDFW
determines that continued implementation of this Agreement, the
MSHCP, and/or the Permits would jeopardize the continued
existence of a Covered Species, or as required by law and would
therefore lead to NCCP Permit revocation or suspension.
The Parties acknowledge that, notwithstanding the assurances provided by this
Section, future modifications to mitigation that are specifically contemplated under the MSHCP
and this Agreement may require adjustments in the mitigation set forth in the MSHCP as of the
Effective Date, including, but not limited to, Take minimization measures and MSHCP Reserve
System management. Such changes are part of the MSHCP's operating Conservation program and
are not precluded by the assurances provided in this Section. In particular, this Section shall not
be construed to diminish the obligation of the Permittees, Third Parties Granted Take
Authorization or Participating Special Entities to undertake mitigation actions in response to
Changed Circumstances and to revise mitigation measures under the Management Program.
However, CDFW acknowledges that neither the Management Program, nor the MSHCP's
provisions concerning Changed Circumstances, are intended to require modifications to the
MSHCP's mitigation program that would require additional funding nor to impose significant
additional burdens on Permittees, discretionary approvals issued by Permittees, or on Participating
Special Entities with respect to Take minimization measures.
15.4 Implementation Assistance. Subject to Section
27.10 of this Agreement, CDFW shall provide staff to serve on
appropriate committees and shall ensure the availability of staff for
informal discussions and meetings with the other Parties to ensure
that the implementation of this Agreement is consistent with, and
will not render invalid, any findings upon which the NCCP Permit
is based. To the extent consistent with its legal authorities, CDFW
shall cooperate with the Permittees in obtaining additional funding
from sources including, but not limited to, existing and future state
and federal grant programs and existing and future bond issues.
15.5 Fully Protected Species. The following Covered
Species listed in the MSHCP are fully protected under California
Fish and Game Code sections 3511 and 4700: 1) Peninsular
bighorn sheep; 2) Yuma clapper rail; and 3) California black rail.
Take of these species is prohibited under the California Fish and
Game Code except as specifically provided in section 2081.7 of
that Code. Under the NCCP permit, only CVWD is authorized to
Take fully protected species, as described in that permit. Under
Fish and Game Code section 2081.7, CDFW may authorize CVWD
to take Yuma clapper rail and California black rail, if the
requirements of that section are met. CDFW acknowledges and
agrees that if the measures set forth in the MSHCP are fully
complied with, the Covered Activities are not likely to result in
Take of fully protected species, except by CVWD. If CDFW
determines that such measures are not adequate to prevent Take of
one of the Fully Protected Species, CDFW shall notify the CVCC,
USFWS and other affected Permittees in writing of such discovery
and propose new, additional, or different Conservation measures
that it believes are necessary to avoid Take of these species. The
affected Permittees shall implement measures proposed by CDFW
.Z
or such other measures agreed to by the Parties as adequate to avoid
Take of Fully Protected Species.
If at any time there is a change in state law such that CDFW may issue a section
2081(b) Permit or Take Authorization under Fish and Game Code section 2835, other permit, or
authorization allowing the Take of any species subject to California Fish and Game Code sections
3511, 4700, 4800, 5050 or 5515, the Permittees may apply for an amendment of the MSHCP and
NCCP Permit or for a new permit for such species. In processing any such application, CDFW
shall give good faith consideration to Take avoidance and mitigation measures already provided
in the MSHCP and shall issue the amendment or Permit under the same terms and conditions as
the existing NCCP Permit, to the extent permitted by law.
15.6 Changes in the Environmental Laws. It is
acknowledged and agreed by CDFW that the Permittees are
agreeing to perform substantial avoidance, minimization,
mitigation, Conservation and management measures set forth in
this Agreement and the MSHCP. If a change in, or addition to, the
Environmental Laws takes place, CDFW shall give good faith
consideration to the measures required under the MSHCP in
applying the new laws and regulations to the Permittees.
15.7 Consultations by CDFW. Except as otherwise
required by law, CDFW shall not recommend or otherwise seek to
impose through consultation with other public agencies any
mitigation, compensation or habitat enhancement requirements
regarding impacts to Covered Species that exceed the requirements
prescribed in and pursuant to the MSHCP and this Agreement,
including, without limitation, in the form of comments offered by
CDFW in the context of any CEQA process associated with
approvals for Covered Activities with regard to effects on Covered
Species.
15.8 Management of Land. CDFW agrees to manage
its land within the MSHCP Reserve System consistent with the
MSHCP, along with other legal mandates and management
objectives.
16. RELATIONSHIP TO OTHER EXISTING HABITAT CONSERVATION PLANS,
NCCP PERMITS AND SECTION 2081 PERMITS
16.1 General. The Parties acknowledge that there are
Habitat Conservation Plans, biological opinions issued pursuant to
section 7 and section 2081 Permits, currently in existence for
projects in the Coachella Valley and surrounding mountains within
Riverside County. The Parties agree that the MSHCP is not
incompatible with nor does it negate these existing plans and
50
Permits. Upon request, the Parties may consider consolidation of
these Permits and plans into the MSHCP.
16.2 Coachella Valley Fringe -Toed Lizard Take
Authorization. The Permitees will relinquish the Coachella
Valley Fringe -Toed Lizard ("CVFTL") Section 10(a) Permit
pursuant to 50 CFR 13.26 within six months of issuance of the
MSHCP Section 10(a) Permit, which will allow for final
accounting and completion of other administrative activities under
the CVFTL HCP. Upon relinquishment of the CVFTL permit,
Take Authorization for the CVFTL for Covered Activities will be
provided pursuant to the MSHCP Section 10(a) Permit. Because
the CVFTL Section 10(a) Permit will no longer exist, the
consistency determination (under Fish and Game Code section
2080.1) which was based on such permit will also terminate. Upon
issuance of the MSHCP Section 10(a) Permit, the current fees
required under the CVFTL HCP will no longer be imposed.
17. THIRD PARTY TAKE AUTHORIZATION
17.1 Authorization. Upon execution of this Agreement
by the Parties and the issuance of the Permits by the Wildlife
Agencies, the Permittees may allow the Take of Covered Species
by landowners, developers, and other private and public entities
undertaking Covered Activities. Such Covered Activities must be
under the direct control of the Permittees in conformance with
approvals granted by the Permittees, or carried out in conformity
with a Certificate of Inclusion or other written mechanism or
instrument, and in compliance with this Agreement, the Permits
and the MSHCP. As set forth in Section 11.1.1 of this Agreement,
Permittees shall include as a part of any discretionary or certain
City ministerial approvals, a Certificate of Inclusion or other
written mechanism, a condition requiring compliance with the
Permits, the MSHCP and this Agreement, that describes the Take
Authorization to be granted pursuant to Section 17.2 of this
Agreement. Such property owners, developers, and private and
public entities shall receive Take Authorization provided they are
in full compliance with all requirements of this Agreement, the
MSHCP, the Permits, the Implementation Mechanism adopted by
Permittees, issued entitlements and all other applicable
requirements.
17.2 Timing of Take Authorization. Authorization of
Take for Third Parties shall occur upon issuance of a grading permit
by a Local Permittee or issuance of a Certificate of Inclusion by the
CVCC or other Local Permittee. Alternatively, as an incentive to
convey property needed for inclusion in the MSHCP Reserve
51
System and for which monetary compensation will not be provided,
Third Party Take Authorization may be granted upon project
approval and property conveyance. In order to obtain this early
Take Authorization, the conveyance must occur within forty-five
(45) days of project approval. Any subsequent suspension or
revocation of Permits terminating Third Party Take Authorization
will not be applicable to the Take Authorization granted upon the
project's approval, provided the property has been conveyed and all
other mitigation obligations have been satisfied, except where such
Take Authorization will jeopardize a Covered Species listed under
FESA and/or CESA. In this event, the provisions of Section 17.4
of this Agreement would be triggered. No grading permit or
Certificate of Inclusion shall be issued by a Local Permittee until
all mitigation requirements imposed by the Permittees through the
Implementation Mechanism have been fully satisfied or are
guaranteed to occur within a set time frame as approved by the
Permittee. In the event that such mitigation requirements have not
been satisfied prior to issuance of grading permit or Certificate of
Inclusion, the applicant and the Permittee shall enter into an
agreement setting forth the terms and conditions of MSHCP
compliance and appropriate remedies for non-compliance. The
Take Authorization conferred by the Permittees to the Third Parties
shall be for the length of time, and run concurrently with, the
specific land development approval or other entitlement or
approval granted by the Permittees and the term of the Permits.
17.3 Effect of MSHCP Amendments on Third Parties.
Amendments or other revisions to the MSHCP, subsequent to the
granting of Take to a Third Party by a Permittee, shall not affect
the Take conferred upon a Third Party or the level of compensation
required unless the Third Party, the Wildlife Agencies and the
affected Permittee all agree to such amendments or revisions.
17.4 Effect of Revocation or Suspension of Permits on
Third Parties. In the event that one or both of the Wildlife
Agencies revoke or suspend all or a portion of the Take
Authorization allowed under the Permits, and provided the affected
Permittee continues to carry out its obligations under the MSHCP,
this Agreement and the Permits, the Take Authorization and other
assurances granted to Third Parties Granted Take Authorization by
the Permittees will remain in effect as to each individual Third
Party project that received Take Authorization prior to the
revocation or suspension unless USFWS or CDFW determines that
continuation of the Permits with regard to Take by Third Parties
Granted Take Authorization would likely jeopardize a species
listed under FESA and/or CESA. In this event, the CVCC,
applicable Permittee(s), Third Parties Granted Take Authorization
52
and Wildlife Agencies, shall meet and confer pursuant to the
provisions in Section 23.6 of this Agreement. If these Parties
cannot reach a mutually satisfactory resolution, the Wildlife
Agencies may revoke or suspend all Take Authorization under the
MSHCP for that listed species. In this event, all Local Permittees,
Third Parties Granted Take Authorization and Participating Special
Entities would be eligible for full or partial refund from the CVCC
or other appropriate Permittees of any mitigation contribution, as
appropriate, except to the extent that Take had already occurred.
The CVCC or other applicable Permittee will issue a notice to all
potentially affected property owners that Take Authorization for
that listed species is no longer valid under the Plan.
17.5 Effect of No Surprises Assurances on Third
Parties. Pursuant to the No Surprises Rule, the Wildlife Agencies
shall not require the commitment of additional land or financial
compensation or other mitigation from the Permittees, and the
Permittees will not require such commitments from a Third Party
pursuant to the Permits, the MSHCP or this Agreement beyond
those measures imposed on the Third Party by the Local Permittee
in accordance with the Permit, the MSHCP and this Agreement,
unless agreed to by the Third Party. The Parties acknowledge that
additional measures may be required for a species that is not a
Covered Species, as described in Section 11.3.5 of this Agreement.
17.6 Retention of Enforcement Authority Over Third
Parties. The Parties reserve the right to enforce all applicable
federal, state, or local laws against persons or entities which engage
in unlawful land development activity without obtaining proper
permits and approvals. The Parties further reserve the right to
enforce all applicable federal, state, or local laws against Third
Parties conducting land development activities within the Plan
Area not in compliance with project approvals pursuant to the
MSHCP. Local Permittees have the obligation to enforce
conditions of project approval as described in Section 13.0 of this
Agreement.
18. COOPERATIVE EFFORT
In order to ensure that the legal requirements set forth in this Agreement are fulfilled, each
of the Parties to this Agreement must perform certain specified tasks as set forth in this Agreement
and the MSHCP. The MSHCP and this Agreement thus describe a cooperative effort by federal,
state and local agencies to implement a program of Conservation for the Covered Species.
Additionally, the Parties shall work cooperatively to enter into appropriate Memoranda of
53
Understanding or other appropriate agreements with any non -Party managing land within the
MSHCP Reserve System to manage lands in conformance and compliance with the MSHCP. A
draft Model Memorandum of Understanding is attached hereto as Exhibit "F."
19. TERM
19.1 Effective Date. This Agreement shall be effective
upon issuance of the Permits. Any Permittee executing this
Agreement after the Effective Date shall, upon execution, become
a Party to this Agreement, with all the rights and obligations of
Parties defined herein, and this Agreement shall be enforceable
between each later executing Permittee and all prior signing
Parties.
19.2 Term of the Agreement. This Agreement shall run
for a term of seventy-five (75) years from the Effective Date, unless
terminated in accordance with Section 21 of this Agreement or
unless extended by agreement of all of the Parties hereto.
19.3 Term of the Permits. The Permits shall run for a
term of seventy-five (75) years from the Effective Date unless
terminated as provided in this Agreement, provided the
requirements of Section 11.1 of this Agreement have been met.
This term was selected as reasonable due to the scope and breadth
of the Plan, the need to establish an adequate endowment to manage
and monitor the MSHCP Reserve System and the projected growth
and planned infrastructure within the Plan Area.
19.4 Extension of the Permit. Upon agreement of the
Parties and in compliance with all applicable laws, the Wildlife
Agencies may, with respect to the Permits under their respective
jurisdiction, extend the Permits beyond their initial terms under the
applicable regulations in force on the date of such extension. If
Permittees desire to extend the Permits, they will so notify the
Wildlife Agencies at least twelve (12) months before the then -
current term is scheduled to expire and submit an application to
renew the Permits. Extension of the Permits constitutes extension
of the MSHCP and this Agreement for the same amount of time,
subject to any modifications agreed to by the Parties at the time of
extension.
19.5 Permanent Preservation. Notwithstanding the
stated term as herein set forth, the Parties agree and recognize that
once Take of a Covered Species and/or their habitat modified
within the Plan Area, such Take and habitat modification will be
54
permanent. The Parties therefore agree that obligations regarding
the preservation and maintenance of the habitat provided for under
the Permits, the MSHCP and this Agreement is likewise intended
to be permanent and to extend beyond the term of this Agreement.
20. MODIFICATIONS AND AMENDMENTS TO THE MSHCP
20.1 Clerical Changes. Clerical changes to the MSHCP
shall be made by the CVCC on its own initiative or in response to
a written request submitted by any Permittee or Wildlife Agency,
which includes documentation supporting the proposed clerical
change. Clerical changes shall not require any amendment to the
MSHCP, the Permits or this Agreement. Clerical changes include
corrections of typographical, grammatical, and similar editing
errors that do not change the intended meaning as well as
corrections of any maps or exhibits to correct insignificant errors in
mapping. The Parties anticipate that most clerical changes to the
MSHCP will occur during the first ten (10) years of the Permits.
Annual reports shall include a summary of clerical changes made
to the MSHCP in the preceding calendar year.
20.2 Land Use Changes. The Parties agree that the
adoption and amendment of general plans, specific plans,
community plans, zoning ordinances and similar land use
ordinances, and the granting of implementing land use entitlements
by the County and the Cities are matters within the sole discretion
of the County and Cities and shall not require amendments to this
Agreement or the approval of other Parties to this Agreement.
However, the Parties agree that: 1) no such action by the County or
the Cities shall in any way alter or diminish their obligations under
this Agreement, the MSHCP, or the Permits, and 2) approval of
certain projects may lead to revocation or suspension of the Permits
pursuant to Section 23.5 of this Agreement.
20.3 Adaptive Management Changes. Except as
otherwise provided, changes to avoidance measures, minimization,
mitigation, compensation and MSHCP Reserve System
management strategies developed through and consistent with the
Management Program described in Section 8.0 of the MSHCP shall
not require any amendment to the MSHCP, this Agreement or the
Permits.
Minor Amendments. Minor Amendments are amendments to the
MSHCP of a minor or technical nature where the effect on Covered
Species, levels of Take and Permittees' ability to implement the
MSHCP are not significantly different than those described in the
55
MSHCP as originally adopted. Minor Amendments to the MSHCP
shall not require amendments to this Agreement or the Permits.
20.3.1 List of Minor Amendments. As set forth in Section 6.12.3 of the
MSHCP, the following are contemplated as Minor Amendments to the
MSHCP and therefore, will be administratively implemented pursuant to
the procedures below. Minor Amendments processed pursuant to this
subsection are limited to those listed in Sections 20.4.2 and 20.4.3 of this
Agreement.
20.3.2 Minor Amendments not Requiring Wildlife Agencies Concurrence.
A. Minor corrections to land ownership;
B. Adjustment of land ownership and Conservation acreages in the
Santa Rosa and San Jacinto Mountains Conservation Area upon
completion of a land exchange between the Agua Caliente Band
of Cahuilla Indians and BLM, as discussed in Section 4.2.1.1 of
the Final MSHCP;
C. Minor revisions to survey, monitoring, reporting and/or
management protocols that clearly do not affect Covered Species
or overall MSHCP Reserve System functions and values;
D. Application of Take Authorization to Development within cities
incorporated within the MSHCP boundaries after the Effective
Date of this Agreement, pursuant to Section 11.5 of this
Agreement, provided such inclusion does not preclude Reserve
Assembly, significantly increase the cost of MSHCP Reserve
System Assembly or management or preclude achieving
Conservation Area Conservation Objectives or Species
Conservation Goals;
E. Annexation or deannexation of property within the Plan Area
pursuant to Section 11.4 of this Agreement, provided such
inclusion does not preclude Reserve Assembly, significantly
increase the cost of MSHCP Additional Conservation Lands
management or assembly, or preclude achieving Conservation
Area Conservation Objectives or Species Conservation Goals;
F. Updates/corrections to the natural communities map and/or
species occurrence data; and
G. Changes to the RMU boundaries.
20.3.3 Minor Amendments Requiring Wildlife Agencies Concurrence.
Concurrence.
56
A. Conservation Area boundary adjustments as set forth in Section
6.12.2 of the MSHCP.
B. Construction and operation of CVWD water recharge and storage
and other water related facilities as set forth in Section 7.3 of the
MSHCP.
C. Modifications of the alignment of the Palm Desert to La Quinta
Connector Trail from the alignment in the Trails Plan in the Final
MSHCP.
D. Transfer of Conservation Objectives for conserved natural
communities and/or identified Covered Species between
Conservation Areas or between Recovery Zones in the Santa Rosa
and San Jacinto Mountains Conservation Area may occur if the
following is demonstrated:
1. The transfer does not reduce the number of acres anticipated
by the Plan of the natural community or the species' habitat
conserved.
2. The transfer does not reduce the Conservation value of the
lands that will be conserved based on natural community
patch size, configuration, and juxtaposition within the matrix
of Conserved Habitat and is of greater or equal habitat value.
3. There is no reduction in Conservation and no increase in
Take.
4. Transfers must be within kind (for a Covered Species or
natural community). Any shifts must be species -specific and
meet the above criteria.
E. Changes to the list of exotic species in Table 4-112 of the MSHCP.
F. Future proposals for new trails on Reserve Lands in the Santa Rosa
and San Jacinto Mountains Conservation Area, other than the
identified new trails (including perimeter trails).
G. Construction of the Morongo Wash Flood Control Facility as
described in Section 7.3.1.
20.3.4 Procedure. Any Party may propose Minor Amendments to the MSHCP
or this Agreement by providing written notice to all other affected Parties.
Such notice shall include a description of the proposed Minor
Amendment, an explanation of the reason for the proposed Minor
Amendment, an analysis of its environmental effects including any
57
impacts to the Conservation of Covered Species and a description of why
that Parry believes the effects of the proposed Minor Amendment: 1) are
not significantly different from, and are biologically equivalent to, the
terms in the MSHCP as originally adopted; 2) substantially conform to
the terms in the MSHCP as originally adopted; and 3) will not
significantly reduce the ability to acquire the Additional Conservation
Lands. The Wildlife Agencies and affected parties shall submit any
comments on the proposed Minor Amendment in writing within sixty (60)
days of receipt of such notice. Any Party can institute the informal meet
and confer process set forth in Section 23.6 of this Agreement to resolve
disagreements concerning Minor Amendments.
For the minor amendments requiring Wildlife Agencies' concurrence, any
non -concurrence must occur within sixty (60) days of receipt of the
written notice as referenced above. If the Wildlife Agencies concur or if
they fail to respond within the sixty (60) days period, the Minor
Amendment may be approved. If the Wildlife Agencies do not concur
with the analysis supporting the Minor Amendment in writing within the
60-day period, the project will be subject to a Major Amendment.
20.4 Major Amendments. Major Amendments are
those proposed changes to the MSHCP and the Permits that are not
clerical or Minor Amendments. Major Amendments to the
MSHCP shall require a subsequent amendment to this Agreement
and the Permits, and public notice as required by applicable laws
and regulations. The CVCC shall submit any proposed Major
Amendments to the Wildlife Agencies.
20.4.1 List of Major Amendments. Major Amendments include, but are not
limited to, any of the following:
A. All amendments not contemplated in this Agreement as clerical or
Minor Amendments to the MSHCP, except subsequent minor
changes which are not specifically listed as a Minor Amendment
in this Agreement that the Wildlife Agencies have determined to
be insubstantial and appropriate for implementation as a Minor
Amendment;
B. Changes to the boundary of the Plan Area;
C. Addition of species to the Covered Species list; and
D. Changes in anticipated Reserve Assembly or funding strategies
and schedules that would have substantial adverse effects on the
Covered Species.
20.4.2 Procedure. Major Amendments shall be processed as set forth in Section
6.12.4 of the MSHCP and require the same process followed for the
original MSHCP approval. A Major Amendment will require an
amendment to the MSHCP and this Agreement addressing the new
circumstances, subsequent publication and public notification,
CEQA/NEPA compliance and intra-Service section 7 Consultation, if one
is deemed necessary. Major Amendments shall be subject to review and
approval by the CVCC and other Permittees as appropriate, at a noticed
public hearing. The Wildlife Agencies will use reasonable efforts to
process proposed Major Amendments within one hundred twenty (120)
days after publication in the Federal Register of the proposed Major
Amendment.
20.5 Like Exchanges in Conservation Areas. Like
exchanges in Conservation Areas may be implemented pursuant to
Section 6.12.2 of the MSHCP.
59
21. TERMINATION OF PERMITS
21.1 Termination in General. The Permittees may
unanimously elect to terminate the MSHCP and the Permits. In
order to terminate, the CVCC shall make written findings at a
noticed public hearing that further compliance with this
Agreement, and implementation of the MSHCP, are either not
feasible or no longer in the best interest of the County, the Cities
and the other Permittees. Termination by the Permittees shall not
be effective until sixty (60) days after the CVCC has provided
written notice to the Wildlife Agencies of the adoption of
termination findings.
21.2 Continuing Obligations. In the event of
termination, consistent with the requirements of 50 Code of Federal
Regulations sections 17.32(b)(7) and 17.22(b)(7), the Permittees
will remain obligated to fulfill any existing and outstanding
minimization and mitigation measures required under the terms of
the Permits for Take that occurs prior to such termination and such
minimization and mitigation measures as may be required pursuant
to the terms of this Agreement and the MSHCP. With the consent
of the Wildlife Agencies, the CVCC may transfer its obligations to
a professional land manager approved by the Wildlife Agencies or
to the Wildlife Agencies directly, or to another appropriate entity
and/or entities acceptable to the Wildlife Agencies.
All Local Development Mitigation Fees that have been collected and held by the
CVCC, the County and the Cities shall be placed in an interest bearing account governed by the
CVCC, and shall be transferred to a professional land manager, the Wildlife Agencies directly, or
other appropriate entity and/or entities acceptable to the Wildlife Agencies.
21.3 Final Accounting. At the time of termination, the
CVCC shall provide to the Wildlife Agencies a final accounting of
management activities and monitoring information. Such final
accounting shall include, at a minimum, all of the information
contained in the Annual Report described in Section 6.4 of the
MSHCP and all outstanding obligations for future actions
regarding implementation of the MSHCP. The final accounting
shall specify the Permittees' specific responsibilities and time
frames for carrying out such obligations to ensure Rough Step
requirements are met by the Permittees.
21.4 Dissolution of the CVCC. In the event the CVCC
disbands or is otherwise dissolved at the time of termination, the
CVCC's obligations under this Agreement shall be carried out by
the County or other appropriate entity and/or entities acceptable to
the Wildlife Agencies.
22. WITHDRAWAL OF PERMITTEE(S)
22.1 Withdrawal in General. A Permittee may
terminate its participation in the MSHCP and abandon its Take
Authorization set forth in the Permits by notifying the Parties
hereto in writing of its intent to terminate its participation. Any
Permittee that elects to terminate participation in the MSHCP shall
provide at least ninety (90) days written notice to all Parties. Prior
to any such termination, the Permittee shall provide to the CVCC a
final accounting of any information gathered by the Permittee with
respect to implementation of the MSHCP, and shall transfer to the
CVCC any Local Development Mitigation Fees or other funds
related to the MSHCP that have been collected.
22.2 Mitigation Responsibilities. Consistent with the
requirements of 50 Code of Federal Regulations sections
17.32(b)(7) and 17.22(b)(7), the withdrawing Permittee remains
responsible for any existing and outstanding minimization and
mitigation measures required under the terms of the Permits for
Take that occurs prior to such withdrawal, and such minimization
and mitigation measures as may be required pursuant to the terms
of this Agreement and the MSHCP.
22.3 Termination of Permittee Take Authorization.
Termination of participation by any Permittee will automatically
terminate Take Authorization for Covered Activities within that
Permittee's jurisdiction. However, for those Covered Activities
within that Permittee's jurisdiction that have been issued a grading
permit or, if a grading permit is not required, have commenced
grading activities or have been issued a Certificate of Inclusion
prior to the notification or the Permittee's formal decision to
terminate, Take Authorization shall continue under the remaining
Permits provided all relevant obligations have been met pursuant
to the MSHCP, this Agreement and the Permittee's land use
entitlements. In this event, the withdrawing Permittee may elect to
continue enforcement of the Plan for the Covered Activities.
Otherwise, the CVCC or other appropriate remaining Permittee
shall enter into a Certificate of Inclusion or other written
mechanism or instrument with the Third Party Granted Take
Authorization or Participating Special Entity. The Certificate of
Inclusion or other written mechanism shall be automatically issued
provided the applicable Parties are in compliance with the MSHCP,
this Agreement and the Permits.
22.4 Evaluation of Remaining Permits. In the event of
termination by any Permittee, the CVCC shall meet and confer with
the Wildlife Agencies to determine to what extent, if any, Take
61
Authorization may continue to be provided to the remaining
Permittees. In making this determination, the Wildlife Agencies
shall evaluate the benefits to Covered Species resulting from the
participation of the remaining Permittees, the extent to which the
withdrawing Permittee has outstanding obligations for compliance
with Take minimization and mitigation measures, an evaluation of
whether the Permits continue to meet issuance criteria pursuant to
FESA and the NCCP Act, and any other relevant information. Such
evaluation shall include an analysis of the viability of the MSHCP
Reserve System without the participation of the Permittee,
including whether adequate funding will be available to implement
the terms of the MSHCP.
23. REMEDIES AND ENFORCEMENT
23.1 Remedies in General. Except as set forth below,
each Parry shall have all remedies otherwise available to enforce
the terms of the MSHCP, this Agreement and the Permits, and to
seek remedies for any breach hereof, subject to the following
limitations:
23.1.1 No Monetary Damages. No Party shall be liable in money damages to
any other Party or any other person for any breach of this Agreement,
any performance or failure to perform a mandatory or discretionary
obligation imposed by this Agreement or any other cause of action
arising from this Agreement. Notwithstanding the foregoing:
A. All Parties shall retain whatever liability they would possess for
their present and future acts, or failure to act, without existence
of this Agreement.
B. All Parties shall retain whatever liability they possess as an owner
of interests in land.
C. Nothing contained in this Agreement is intended to limit the
authority of the United States government or the government of
the State of California to seek civil or criminal penalties or
otherwise fulfill its/their enforcement responsibilities under
FESA, CESA, the NCCP Act, or other applicable law.
23.2 Default. Any material breach or violation of this
Agreement, the MSHCP, or the Permits shall be deemed a default
under this Agreement.
23.2.1 Notice and Opportunity to Cure Default. If any Party determines that
one of the other Parties is in violation of the terms of this Agreement, or
that a violation is threatened, that Party shall give written notice to the
violating Party of such violation and demand in writing the cure of such
62
violation. If the violating Party fails to cure the violation within forty-
five (45) days after receipt of said written notice and demand from the
notifying Party, or said cure reasonably requires more than forty-five
(45) days to complete and the violating Party fails to begin the cure
within the forty-five (45) day period or fails to continue diligently to
complete the cure, the notifying Party may bring an action at law or in
equity in a court of competent jurisdiction to: 1) enforce compliance by
the defaulting Party with the terms of this Agreement, 2) recover actual
damages to which the notifying Party may be entitled for violation by
the defaulting Parry of the terms of this Agreement subject to the
limitations stated in Section 23.1 above, and/or 3) 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. The
notifying Parry may apply any damages recovered to the cost of
undertaking any corrective action.
23.3 Injunctive and Temporary Relief. The Parties
acknowledge that the Covered Species are unique and that their loss
as species would result in irreparable damage to the environment
and therefore injunctive and temporary relief may be appropriate to
ensure compliance with the terms of this Agreement.
23.4 Limitation and Extent of Enforceability. Except
as otherwise specifically provided herein, nothing in this
Agreement shall be deemed to restrict the rights of the Permittees
to the use of those lands, or interest in lands, constituting the Plan
Area, provided that nothing in this Agreement shall absolve the
Permittees from such other limitations as may apply to such lands,
or interest in lands, under other laws or regulations of the United
States, the State of California, or any local agency with jurisdiction
over those lands.
23.5 Revocation or Suspension of the Permits. The
Wildlife Agencies shall have the right to revoke or suspend all or
portions of the Permits, in accordance with the laws and regulations
in force at the time of such revocation or suspension. Such action
may also be triggered by: 1) failure of a Permittee to implement the
Implementation Mechanisms adopted by that agency; 2) approval
of a proposed Development or public project that significantly
compromises the viability of the MSHCP Reserve System; 3)
failure to comply with Rough Step requirements set forth in Section
6.5 of the MSHCP; and/or 4) withdrawal of a Permittee. Such
suspension or revocation may apply to the entire applicable Permit,
or only to a portion such as specified Conservation Area, specified
Covered Species, or specified Covered Activities. Such action may
also be triggered if the Wildlife Agencies determine that land
63
within the Conservation Areas is annexed to a non -participating
public agency and thus, development of such land could
significantly compromise the viability of the MSHCP Reserve
System.
Except as otherwise required by law, prior to taking action to revoke or suspend the
Permits, the Wildlife Agencies, as applicable, shall: 1) provide thirty (30) day prior written
notification to the relevant Permittee(s) and the CVCC of the proposed revocation or suspension,
and 2) meet and confer with the relevant Permittee(s) and the CVCC to attempt to avoid the need
to revoke or suspend all or a portion of the Permits. The Parties may rely upon the informal meet
and confer process set forth in Section 23.6 of this Agreement for disputes concerning potential
Permit revocation or suspension.
If the Permits are suspended or revoked, Permittees shall not have the authority to rely upon the
Permits to approve or carry out any actions which would violate FESA or CESA in the absence of
such Permits. In the event of suspension or revocation of the Permits, Permittees' obligations
under this Agreement and the MSHCP to carry out all of their responsibilities under the MSHCP,
the Permits and this Agreement arising from any Covered Activity approved, authorized or carried
out by the Permittees between the Effective Date of the Agreement and the date the Permits are
revoked or suspended will continue until the USFWS and/or the CDFW determines that all Take
of Covered Species that occurred under the Permits has been addressed pursuant to the terms of
the Permits. Provided the suspension or revocation is not the result of the Permittee(s)' failure to
properly implement the MSHCP, no additional mitigation beyond that contemplated in the
MSHCP and this Agreement will be required. As to any Covered Activity of a Third Party that is
approved or authorized by a Local Permittee and for which Take is authorized prior to the
suspension or revocation or for Caltrans Covered Activities for which mitigation has already been
contributed, so long as the Local Permittee and Third Party continue to fulfill their obligations
under the Permits, the Take Authorization shall continue in effect for that project until completion
pursuant to Section 23.7 of this Agreement, except where such Take Authorization will jeopardize
a Species listed under FESA or CESA.
23.6 Informal Meet and Confer Process for Disputes
Concerning Covered Activities, State Streambed Alteration
Agreements, Federal 404 Permits, and ESA Section 7
Consistency Consultation. Concerning Covered Activities, state
streambed alteration agreements, federal 404 permits, and section
7 consistency consultations, the Parties agree to work together in
good faith to resolve disagreements using the informal dispute
resolution procedures set forth in this Section, or such other
procedures upon which the Parties may later agree. However, if at
any time a Party determines that circumstances so warrant, such
Party may seek any available remedy without waiting to complete
this informal meet and confer process.
Unless the Parties agree upon another dispute resolution process, or unless the
CDFW or the USFWS has initiated administrative proceedings or litigation in federal or state
court, the Parties may use the following process to attempt to resolve disputes concerning Covered
Z
Activities, state streambed alteration agreements, federal 404 permits, and ESA section 7
consistency consultations:
A. The CDFW and/or the USFWS will notify the CVCC in writing o£
1. disagreements they may have with the impact of a proposed Covered
Activity on a covered species,
2. the basis for CDFW's and/or USFWS's contention that the MSHCP
lacks certain identified measures necessary to the continued
existence of the identified species, or that the MSHCP contains
measures that may be detrimental to the continued existence of the
impacted Covered Species.
3. the basis for contending that the proposed Covered Activity is not
consistent with the MSHCP and the Permits.
4. concerns they may have regarding the issuance of a state streambed
alteration agreement, a federal 404 permit, or a section 7 consistency
determination.
B. The CVCC, in coordination with the project applicant(s), will have sixty
(60) days, or such other time as may be agreed upon, to respond. During
this time, the CVCC, in coordination with the project applicant(s), may seek
clarification of the information provided in the initial notice. The CDFW
and/or the USFWS will use reasonable efforts to provide all information
available to them that may be responsive to such inquiries.
C. Within sixty (60) days after such response was provided or was due,
representatives of the Parties (and the project applicant(s) if the project
applicant(s) so chooses) having authority to resolve the dispute will meet
and negotiate in good faith toward a mutually satisfactory solution.
D. If any disagreement cannot be resolved through such negotiations, the
Parties will consider other alternative dispute resolution processes and, if a
dispute resolution process is agreed upon, will make good faith efforts to
resolve those remaining disagreements through that process.
23.7 Continuation Of Take Authorization after
Revocation, Suspension or Permittee Withdrawal. In the event
of revocation or suspension of the Permits pursuant to Section 23.5
of this Agreement or withdrawal of a Permittee pursuant to Section
22 of this Agreement, any Third Party Granted Take Authorization
or Participating Special Entity who is in compliance with the terms
and conditions of the MSHCP, this Agreement and the Permits can
automatically continue to receive Take Authorization from the
CVCC or other remaining Permittee upon execution of a Certificate
of Inclusion or other written mechanism or instrument issued by
65
the CVCC or other remaining Permittee, except as otherwise
required by law.
24. FORCE MAJEURE
In the event that the Permittees are wholly or partially prevented from performing
obligations under this Agreement because of unforeseeable causes beyond the reasonable control
of and without the fault or negligence of the Permittees ("Force Majeure"), including, but not
limited to, acts of God, labor disputes, sudden actions of the elements, or actions of non-
participating federal or state agencies or local jurisdictions, the Permittees shall be excused from
whatever performance is affected by such unforeseeable cause to the extent so affected, and such
failure to perform shall not be considered a material violation or breach, provided that nothing in
this Section shall be deemed to authorize any Parry to violate FESA, CESA or the NCCP Act, and
provided further that:
A. The suspension of performance is of no greater scope and no longer duration
than is required by the Force Majeure;
B. Within fifteen (15) days after the occurrence of the Force Majeure, affected
Permittees shall give the Wildlife Agencies written notice describing the
particulars of the occurrence;
C. Permittees shall use their best efforts to remedy their inability to perform
(however, this paragraph shall not require the settlement of any strike, walk-
out, lock -out or other labor dispute on terms which in the sole judgment of
the Permittees are contrary to their interest); and
D. When Permittees are able to resume performance of their obligations, the
affected Permittees shall give the Wildlife Agencies written notice to that
effect.
25. LEGAL AUTHORITY OF THE USFWS
The USFWS enters into this Agreement pursuant to FESA, the Fish and Wildlife
Coordination Act (16 U.S.C. sections 661-666(c)), and the Fish and Wildlife Act of 1956 (16
U.S.C. sections 742(b) et seq.). Section 10(a)(1)(B) of FESA expressly authorizes the USFWS to
issue a Section 10(a) Permit to allow the Incidental Take of animal species listed as threatened or
endangered under FESA. The legislative history of section 10(a)(1)(B) clearly indicates that
Congress also contemplated that the USFWS would approve a habitat conservation plan that
protects Unlisted Species as if they were listed under FESA, and that in doing so, the USFWS
would provide assurances for such Unlisted Species. The USFWS routinely approves habitat
conservation plans that address both listed and unlisted Species.
26. LEGAL AUTHORITY OF THE CDFW
CDFW enters into this Agreement pursuant to its separate and independent authority under
the NCCP Act (California Fish and Game Code sections 2800 et seq.). CDFW may authorize the
Take of Covered Species, other than fully protected species, pursuant to California Fish and Game
Code section 2835.
27. MISCELLANEOUS PROVISIONS
27.1 Response Times. The Parties agree that time is of
the essence in performance of the obligations of this Agreement.
Except as otherwise set forth herein or as statutorily required by
CEQA, NEPA, CESA, FESA, the NCCP Act or any other laws or
regulations, the Wildlife Agencies and the Permittees shall use
reasonable efforts to respond to written requests within a forty-five
(45) day time period.
27.2 No Partnership. Except as otherwise expressly set
forth herein, neither this Agreement nor the MSHCP shall make, or
be deemed to make, any Party to this Agreement the agent for, or
the partner or joint venturer of, any other Party.
27.3 Nullification of Agreement. In the event that the
Permits are not issued, this Agreement shall be null and void and
no Party shall be bound by its terms.
27.4 Notices. Any notice permitted or required by this
Agreement shall be in writing, delivered personally, by overnight
mail, or by United States mail, certified and postage prepaid, return
receipt requested to the persons listed below and addressed as
follows, or at such other address as any Party may from time to time
specify to the other Parties in writing. Notices may be delivered by
facsimile or other electronic means, provided that they are also
delivered personally or by overnight or certified mail. Notices shall
be transmitted so that they are received within the specified
deadlines. Notice delivered via certified mail, return receipt
requested, shall be deemed given five (5) days after deposit in the
United States mail. Notices delivered personally shall be deemed
given on the date they are delivered. Notices delivered via
overnight delivery shall be deemed given on the next business day
after deposit with the overnight mail delivery service. The CVCC
shall maintain a list of individuals responsible for ensuring Plan
compliance for each of the Parties which may change. The
following are the individuals currently responsible for ensuring
Plan compliance:
Executive Director
67
Coachella Valley Conservation Commission
73-710 Fred Waring Drive, Suite 200
Palm Desert, California 92260
Telephone: 760-346-1127
Telefax: 760-340-5949
Executive Director
Coachella Valley Association of Governments
73-710 Fred Waring Drive, Suite 200
Palm Desert, California 92260
Telephone: 760-346-1127
Telefax: 760-340-5949
Executive Director
Coachella Valley Mountains Conservancy
73-710 Fred Waring Drive, Suite 112
Palm Desert, CA 92260
Telephone: 760-776-5026
District Director
District 8
California Department of Transportation
464 West 4th Street
San Bernardino, California 92401-1400
Telephone: 909-3 8 3 -45 61
Telefax: 909-3 83-6899
68
Deputy Director
Habitat Conservation Division
California Department of Fish and Wildlife
1416 Ninth Street, 13th Floor
Sacramento, California 95814
Telephone: 916-65 3 -1070
Telefax: 916-653-3673
Regional Manager
Inland Deserts Region
California Department of Fish and Wildlife
3602 Inland Empire Blvd., Suite C-220
Ontario, CA 91764
Telephone: 949-458-1754
City Manager
City of Cathedral City
68-700 Avenida Lalo Guerrero
Cathedral City, California 92234
Telephone: 760-770-0340
Telefax: 760-770-03 99
City Manager
City of Coachella
1515 6th Street
Coachella, California 92236
Telephone: 760-398-3502
Telefax: 760-398-8117
City Manager
City of Desert Hot Springs
65-950 Pierson Blvd
Desert Hot Springs, California 92240
Telephone: 760-329-6411
Telefax: 760-288-3129
City Manager
City of Indian Wells
44-950 Eldorado Drive
Indian Wells, California 92210
Telephone: 760-346-2489
Telefax: 760-346-0407
City Manager
City of Indio
100 Civic Center Mall
Indio, California 92201
Telephone: 760-342-6500
Telefax: 760-342-6556
City Manager
City of La Quinta
78-495 Calle Tampico
La Quinta, California 92253
Telephone: 760-777-7025
Telefax: 760-777-7107
City Manager
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, California 92260
Telephone: 760-346-0611
Telefax: 760-340-0574
City Manager
City of Palm Springs
3200 E. Tahquitz Canyon Way
Palm Springs, California 92263
Telephone: 760-323-8201
Telefax: 760-323-8207
City Manager
City of Rancho Mirage
69-825 Highway 111
Rancho Mirage, California 92270
Telephone: 760-324-4511
Telefax: 760-324-8 83 0
General Manager
Coachella Valley Water District
85995 Avenue 52
Coachella, California 92236
Telephone: 760-398-2651
Telefax: 760-398-3711
General Manager
Imperial Irrigation District
333 East Barioni Boulevard
Imperial, California 92251
Telephone: 760-339-9219
Telefax: 760-3 3 9-93 92
General Manager
Mission Springs Water District
66575 Second Street
Desert Hot Springs, CA 92240
Telephone: 760-329-6448
Telefax: 760-3 3 9-93 92
70
Chief Executive Officer
County of Riverside
County Administrative Center
P.O. Box 1605
Riverside, California 92502-1605
Telephone: 951-955-1100
Telefax: 951-955-1105
General Manager/Chief Engineer
Riverside County Flood Control
and Water Conservation District
1995 Market Street
Riverside, California 92501
Telephone: 951-955-1200
Telefax: 951-788-9965
General Manager
Riverside County Regional Park and Open Space District
4600 Crestmore Road
Riverside, California 92519-3507
Telephone: 951-955-4310
Telefax: 951-955-4305
Chief Executive Officer
Riverside County Waste Resources Management District
14310 Frederick Street
Moreno Valley, California 92553
Telephone: 951-486-3200
Telefax: 951-486-3205
Deputy Operations Manager
United States Fish and Wildlife Service
California/Nevada Operations Office
2800 Cottage Way, Room W-2606
Sacramento, California 95825-1846
Telephone: 916-414-6464
Telefax: 916-414-6486
In addition to the above list, the following individuals will also be provided all notices as set
forth in this Section:
Chair
Coachella Valley Conservation Commission
73-710 Fred Waring Drive, Suite 200
Palm Desert, California 92260
Telephone: 760-346-1127
Telefax: 760-340-5949
71
Chair
Coachella Valley Association of Governments
73-710 Fred Waring Drive, Suite 200
Palm Desert, California 92260
Telephone: 760-346-1127
Telefax: 760-340-5949
Director
California Department of Parks
and Recreation
1416 Ninth Street, Room 1405
Sacramento, CA 95814
Telephone: 916-653-8380
Telefax: 916-65 7-3 909
Board of Supervisors
County of Riverside
P.O. Box 1605
4080 Lemon Street, 5th Floor
Riverside, California 92502-1605
Telephone: 951-955-1050
Telefax: 951-95 5 -1071
Mayor
City of Cathedral City
68-700 Avenida Lalo Guerrero
Cathedral City, California 92234
Telephone: 760-770-0340
Telefax: 760-202-1470
Mayor
City of Coachella
1515 6th Street
Coachella, California 92236
Telephone: 760-398-3502
Telefax: 760-398-8117
Mayor
City of Desert Hot Springs
65-950 Pierson Blvd
Desert Hot Springs, California 92240
Telephone: 760-329-6411
Telefax: 760-288-3129
72
Mayor
City of Indian Wells
44-950 Eldorado Drive
Indian Wells, California 92210
Telephone: 760-346-2489
Telefax: 760-346-0407
Mayor
City of Indio
100 Civic Center Mall
Indio, California 92201
Telephone: 760-863-5437
Telefax: 760-342-6597
Mayor
City of La Quinta
78-495 Calle Tampico
La Quinta, California
Telephone: 760-777-7025
Telefax: 760-777-7107
Mayor
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, California 92260
Telephone: 760-346-0611
Telefax: 760-340-0574
Mayor
City of Palm Springs
3200 E. Tahquitz Canyon Way
Palm Springs, California 92263
Telephone: 760-323-8204
Telefax: 760-323-8332
Mayor
City of Rancho Mirage
69-825 Highway 111
Rancho Mirage, California 92270
Telephone: 760-324-4511
Telefax: 760-324-8830
Field Supervisor
United States Fish and Wildlife Service
2177 Salk Avenue, Suite 250
Carlsbad, California 92008
Telephone: 760-431-9440
Telefax: 760- 431-9618
73
County Counsel
County of Riverside
3535 loth Street
Riverside, California 92501-3624
Telephone: 951-955-6301
Telefax: 951-955-6363
General Counsel
Office of the General Counsel
California Department of Fish and Wildlife
1416 Ninth Street, 12th Floor
Sacramento, California 95814
Telephone: 916-654-3 821
Telefax: 916-654-3 805
74
27.5 Entire Agreement. This Agreement, together with
the MSHCP and the Permits, constitutes the entire Agreement
among the Parties. This Agreement supersedes any and all other
agreements, either oral or in writing, among the Parties with respect
to the subject matter hereof and contains all of the covenants and
agreements among them with respect to said matters, and each
Party acknowledges that no representation, inducement, promise of
agreement, oral or otherwise, has been made by any other Parry or
anyone acting on behalf of any other Party that is not embodied
herein. This Agreement shall not be construed as if it had been
prepared by any one Party, but rather as if all Parties had prepared
the Agreement.
27.6 Assignment or Transfer. This Agreement and
each of its covenants and conditions shall be binding on and inure
to the benefit of the Parties and their respective successors and
assigns. Assignment or other transfer of the Permits shall be
governed by the Wildlife Agencies regulations in force at the time.
27.7 Defense. Upon request, the CDFW will, to the
extent authorized by California law, provide appropriate support to
the Permittees in defending, consistent with the terms of the
MSHCP, lawsuits arising out of the Permittees' adoption of the
MSHCP and/or this Agreement.
27.8 Attorneys' Fees. If any action at law or equity,
including any action for declaratory relief is brought to enforce or
interpret the provisions of this Agreement, each Party to the
litigation shall bear its own attorneys' fees and costs, provided that
attorneys' fees and costs recoverable against the United States shall
be governed by applicable federal law.
27.9 Elected Officials Not to Benefit. No member of,
or delegate to, the California State Legislature, the United States
Congress, the Riverside County Board of Supervisors, or City
Council of the Permittees shall be entitled to any share or part of
this Agreement or to any benefit that may arise from it.
27.10 Availability of Funds. Implementation of this
Agreement and the MSHCP by the USFWS is subject to the
requirements of the Anti -Deficiency Act and the availability of
appropriated funds. Nothing in this Agreement will be construed
by the Parties to require the obligation, appropriation, or
expenditure of any money from the United States Treasury. The
Parties acknowledge and agree that the USFWS will not be
required under this Agreement to expend any federal agency's
appropriated funds unless and until an authorized official of that
75
agency affirmatively acts to commit to such expenditures as
evidenced in writing.
Implementation of this Agreement and the MSHCP by the CDFW is subject to the
availability of appropriated funds. Nothing in this Agreement shall be construed by the Parties to
require the obligation, appropriation, or expenditure of any money from the Treasury of the State
of California. The Parties acknowledge and agree that the CDFW shall not be required under this
Agreement to expend any State appropriated funds unless and until an authorized official of that
agency affirmatively acts to commit such expenditure as evidenced in writing.
Implementation of this Agreement and the MSHCP by the CVCC, the County and
the Cities is subject to the availability of appropriated funds. Nothing in this Agreement will be
construed by the Parties to require the obligation, appropriation, or expenditure of any money from
the general funds of the County or Cities unless expressly authorized by the County Board of
Supervisors and/or appropriate City Councils. The obligations of the County, County Parks,
County Waste, County Flood Control, CVWD, IID, and MSWD are limited to those specifically
set forth in the MSHCP, the Permits and this Agreement.
Implementation of this Agreement and the MSHCP by Caltrans is subject to the
availability of appropriated funds. Nothing in this Agreement shall be construed by the Parties to
require the obligation, appropriation, or expenditure of any money from the Treasury of the State
of California. The Parties acknowledge and agree that Caltrans shall not be required under this
Agreement to expend any State appropriated funds unless and until an authorized official of that
agency affirmatively acts to commit such expenditure as evidenced in writing.
27.11 Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the
United States and the State of California, as applicable.
27.12 Duplicate Originals. This Agreement may be
executed in any number of duplicate originals. A complete original
of this Agreement shall be maintained in the official records of each
of the Parties hereto.
27.13 Relationship to the FESA, CESA, NCCP Act and
Other Authorities. The terms of this Agreement are consistent
with and shall be governed by and construed in accordance with
FESA, CESA, the NCCP Act and other applicable state and federal
law. In particular, nothing in this Agreement is intended to limit
the authority of the USFWS and CDFW to seek penalties or
otherwise fulfill its responsibilities under FESA, CESA and the
NCCP Act. Moreover, nothing in this Agreement is intended to
limit or diminish the legal obligations and responsibilities of the
USFWS as an agency of the federal government or CDFW as an
agency of the State of California.
76
27.14 No Third Party Beneficiaries. Without limiting
the applicability of rights granted to the public pursuant to FESA,
CESA, the NCCP Act or other applicable law, this Agreement shall
not create any right or interest in the public, or any member thereof,
as a third parry beneficiary hereof, nor shall it authorize anyone not
a Party to this Agreement to maintain a suit for personal injuries or
property damages under the provisions of this Agreement. The
duties, obligations, and responsibilities of the Parties to this
Agreement with respect to third party beneficiaries shall remain as
imposed under existing state and federal law.
27.15 References to Regulations. Any reference in this
Agreement, the MSHCP, or the Permits to any regulation or rule of
the Wildlife Agencies shall be deemed to be a reference to such
regulation or rule in existence at the time an action is taken.
27.16 Applicable Laws. All activities undertaken
pursuant to this Agreement, the MSHCP or Permits must be in
compliance with all applicable state and federal laws and
regulations.
27.17 Severability. In the event one or more of the
provisions contained in this Agreement is held invalid, illegal or
unenforceable by any court of competent jurisdiction, such portion
shall be deemed severed from this Agreement and the remaining
parts of this Agreement shall remain in full force and effect as
though such invalid, illegal, or unenforceable portion had never
been a part of this Agreement. The Permits are severable such that
revocation of one does not automatically cause revocation of the
other.
27.18 Headings. The paragraph headings used in this
Agreement are for the convenience of the Parties and are not
intended to be used as an aid to interpretation.
27.19 Due Authorization. The USFWS and CDFW each
represent and warrant for the benefit of the Permittees and their
successors and assign that: 1) the execution and delivery of this
Agreement has been duly authorized and approved by all requisite
action; 2) no other authorization or approval, whether of
governmental bodies or otherwise, will be necessary in order to
enable the USFWS and CDFW to enter into and comply with the
terms of this Agreement; and 3) the person executing this
Agreement on behalf of the USFWS and CDFW has the authority
to bind the USFWS and CDFW respectively.
77
27.20 Faxed Signatures. Any Party may deliver its
signed duplicate of this Agreement to any other Party by facsimile
transmission, and such delivery shall be deemed made and
completed upon receipt of such facsimile transmission by such
other Party. Any Party delivering a signed duplicate by facsimile
transmission shall promptly send the duplicate original bearing its
original signature to such other Party, provided that a delay or
failure to do so shall not negate the effectiveness of the delivery
made by the facsimile transmission.
27.21 Calculation of Dates and Dates of Performance.
Where periods of time of forty-five (45) days or more are used in
this Agreement, calculation of dates of performance shall be by
calendar days, (e.g., where the text reads sixty (60) days, it shall be
read to mean sixty (60) calendar days). Where periods of time are
used in this Agreement of less than forty-five (45) days, calculation
of date or performance shall be by business or working days. In
the event that the date of performance is not a business day, due to
falling on a Saturday, Sunday, or observed state or federal holiday,
the date of performance shall be construed to be the next business
day subsequent to the calculated date of performance.
in
27-22 Further Instruments. Each of the Parties shall,
promptly upon the request of the others, execute, acknowledge, and
deliver to the others any and all further instruments and shall give
such further assurances as are reasonably requested or appropriate
to evidence or give effect to the provisions of this Agreement.
IN WITNESS WHEREOF, THE PARTIES HERETO have executed this
Implementing Agreement to be in effect as of the date last signed below.
ATES FISH AND WILDLIFE SERVICE
Deputy' Rbgjonal Director
United Stat s Fish and Wildlife Service
Pacific Sou twest Region
Sacramento, California
CALIFORNIA DEPARTMENT OF FISH AND WILDLIFE
Deputy Director
Ecosystem Conservation Division
California Department of Fish and Wildlife
Sacramento, California
CALIFORNIA DEPARTMENT OF FISH AND WILDLIFE
Regional Manager
Inland Deserts Region
California Department of Fish and Wildlife
Ontario, California
Date:
Date:
Date:
79
27.22 Further Instruments. Each of the Parties shall,
promptly upon the request of the others, execute, acknowledge, and
deliver to the ethers any and all further instruments and shall give
such further assurances as are reasonably requested or appropriate
to evidence or give effect to the provisions of this Agreement.
IN WITNESS WHEREOF, THE PARTIES HERETO have executed this
Implementing Agreement to be in effect as of the date last signed below.
UNITED STATES FISH AND WILDLIFE SERVICE
Deputy Regional Director
United States Fish and Wildlife Service
Pacific Southwest Region
Sacramento, California
CALIFORNIA DEPARTMENT OF FISH AND WILDLIFE
Deputy Director
Ecosystem Conservation Division
California Department of Fish and Wildlife
Sacramento, California
CALIFORNIA DEPARTMENT OF FISH AND WILDLIFE
Regional Manager
Inland Deserts Region
California Department of Fish and Wildlife
Ontario, California
79
Date:
Date: S i 2 " I
Date:
CALIFORNIA DEPARTMENT OF FISH AND WILDLIFE
Date: ?1-Z 1L
Kaeneral Counsel (approval as to form
lifornia Department of Fish and Wildlife
Sacramento, California
COACHELLA VALLEY ASSOCIATION
OF GOVERNMENTS
Date:
Chair of the Executive Committee
Coachella Valley Association of Governments
Palm Desert, California
COACHELLA VALLEY CONSERVATION COMMISSION
Date:.
Chair
Coachella Valley Conservation Commission
Palm Desert, California
CALIFORNIA DEPARTMENT OF FISH AND WILDLIFE
General Counsel (approval as to farm)
California Department of Fish and Wildlife
Sacramento, California
COACHELLA VALLEY ASSOCIATION
OF GOVERNMENTS
Ch�T'of the Executivetommittee
C�chella Valley Association of Governments
Palm Desert, California
COACHEL LEY CONSERVATION COMMISSION
Chair
Coachella Valley Conservation Commission
Palm Desert, California
Date:
Date:
Date:
6 - 3e —1
80
COACHELLA VALLEY MOUNTAINS CONSERVANCY
Chair
Coachel alley Mountains Conservancy
Palm Desert, California
RIVERSIDE COUNTY BOARD OF SUPERVISORS
Chair of the Board of Supervisors
Riverside County Board of Supervisors
Riverside, California
RIVERSIDE COUNTY FLOOD CONTROL
AND WATER CONSERVATION DISTRICT
Chair
Riverside County Flood Control
and Water Conservation District
Riverside, California
CALIFORNIA DEPARTMENT OF PARKS AND RECREATION
Director of State Parks
California Department of Parks and Recreation
Sacramento, California
RIVERSIDE COUNTY REGIONAL PARK
AND OPEN SPACE DISTRICT
Chair
Riverside County Regional Park and Open Space District
Riverside, California
81
Date., f ' !-
k
Date;
Date:
Date:
Date:
92
COACHELLA VALLEY MOUNTAINS CONSERVANCY
Chair
Coachella Valley Mountains Conservancy
Palm Desert, California
RIVERSIDE COUNTY BOARD OF SUPERVISORS
Chair of e B Supervisors JEFF STONE
Riversid ty and of Supervisors
Riverside, California
RIVERSIDE COUNTY FLOOD CONTROL
AND WATER CONSERVATION DISTRICT
Chair
Riverside County Flood Control
and Water Conservation District
Riverside, California
CALIFORNIA DEPARTMENT OF PARKS AND RECREATION
Director of State Parks
California Department of Parks and Recreation
Sacramento, California
RIVERSIDE COUNTY REGIONAL PARK
AND OPEN SPACE DISTRICT
Chair
Riverside County Regional Park and Open Space District
Riverside, California
81
Date:
Date,a -2q 11 �
Date:
Date:
Date:
W
I
..
COACHELLA VALLEY MOUNTAINS CONSERVANCY
Chair
Coachella Valley Mountains Conservancy
Palm Desert, California
RIVERSIDE COUNTY BOARD OF SUPERVISORS
Chair of the Board of Supervisors
Riverside County Board of Supervisors
Riverside, California
RIVERSIDE COUNTY FLOOD CONTROL
AND WATER CONSERVATION DISTRICT
C air t, s. ,.:.E•ai_
Riverside County Flood Control
and Water Conservation District
Riverside, California
CALIFORNIA DEPARTMENT OF PARKS AND RECREATION
Date:
Date:
Date:
Date:
Director of State Parks
California Department of Parks and Recreation
Sacramento, California
RIVERSIDE COUNTY REGIONAL PARK
AND OPEN SPACE DISTRICT
Date:
Chair
Riverside County Regional Park and Open Space District
Riverside, California
81
co
w
COACHELLA VALLEY MOUNTAINS CONSERVANCY
Date:
Chair
Coachella Valley Mountains Conservancy
Palm Desert, California
RIVERSIDE COUNTY BOARD OF SUPERVISORS
Date:
Chair of the Board of Supervisors
Riverside County Board of Supervisors
Riverside, California
RIVERSIDE COUNTY FLOOD CONTROL
AND WATER CONSERVATION DISTRICT
Chair
Riverside County Flood Control
and Water Conservation District
Riverside, California
CALIFORNIA DEPARTMENT OF PARKS AND RECREATION
kit-1-IF .6j, �1' &"�
Director of State Parks
California Department o arks and Recreation
Sacramento, California
RIVERSIDE COUNTY REGIONAL PARK
AND OPEN SPACE DISTRICT
Chair
Riverside County Regional Park and Open Space District
Riverside, California
Date:
Date: -/ ' '� 6
Date:
U- m
COACHELLA VALLEY MOUNTAINS CONSERVANCY
Chair
Coachella Valley Mountains Conservancy
Palm Desert, California
RIVERSIDE COUNTY BOARD OF SUPERVISORS
Chair of the Board of Supervisors
Riverside County Board of Supervisors
Riverside, California
RIVERSIDE COUNTY FLOOD CONTROL
AND WATER CONSERVATION DISTRICT
Chair
Riverside County Flood Control
and Water Conservation District
Riverside, California
CALIFORNIA DEPARTMENT OF PARKS AND RECREATION
Director of State Parks
California Department of Parks and Recreation
Sacramento, California
RIVERSIDE COUNTY REGIONAL PARK
AND OPEN SPACE DISTRICT
Chair gg�� I .�EFFRIES
Riverside Coounty Regional Park and Open Space District
Riverside, California
81
Date:
Date:
Date:
Date
- w
d �'
RIVERSIDE COUNTY WASTE RESOURCES MANAGEMENT DISTRICT
Chair '
River ou aste Resources Management District
Riverside, California
CALIFORNIA DEPARTMENT OF TRANSPORTATION
Director
California Department of Transportation
Sacramento, California.
CITY OF CATHEDRAL CITY
Mayor
City of Cathedral City
Cathedral City, California
CITY OF COACHELLA
Mayor
City of Coachella
Coachella, California
CITY OF DESERT HOT SPRINGS
Mayor
City of Desert Hot Springs
Desert Hat Springs, California
82
Date: /q
Date:
Date:
Date:
Date:
701
RIVERSIDE COUNTY WASTE RESOURCES MANAGEMENT DISTRICT
Chair
Riverside County Waste Resources Management District
Riverside, California
CALIFORNIA DEPARTMENT OF TRANSPORTATION
\,,�o^ Distr' t Director, District 8
Ca ' ornia Department of Transportation
an Bernardino, California
CITY OF CATHEDRAL CITY
Mayor
City of Cathedral City
Cathedral City, California
CITY OF COACHELLA
Mayor
City of Coachella
Coachella, California
CITY OF DESERT HOT SPRINGS
Mayor
City of Desert Hot Springs
Desert Hot Springs, California
82
Date:
Date: 7 1
Date:
Date:
Date:
RIVERSIDE COUNTY WASTE RESOURCES MANAGEMENT DISTRICT
Chair
Riverside County Waste Resources Management District
Riverside, California
CALIFORNIA DEPARTMENT OF TRANSPORTATION
Director
California Department of Transportation
Sacramento, California
CITY OF CATHEDRAL CITY
Mayor
City of athedral y
Cathedral City, Ca ifornia
CITY OF COACHELLA
Mayor
City of Coachella
Coachella, California
CITY OF DESERT HOT SPRINGS
Mayor
City of Desert Hot Springs
Desert Hot Springs, California
82
Date:
Date:
Date: j ' o '� . ?.CA
Date:
Date:
RIVERSIDE COUNTY WASTE RESOURCES MANAGEMENT DISTRICT
Chair
Riverside County Waste Resources Management District
Riverside, California
CALIFORNIA DEPARTMENT OF TRANSPORTATION
Director
California Department of Transportation
Sacramento, California
+CITY OF CATHEDRAL CITY
Mayor
City of Cathedral City
Cathedral City, California
CITY OF COACHELLA
Mayor
City of Coachella
Coachella, California
CITY OF DESERT HOT SPRINGS
Mayor
City of Desert Hot Springs
Desert Hot Springs, California
82
Date_
Date:
Date:
Date: IZ4P /7-0/4
Date:
RIVER,SIDE COUNTY WASTE RESOURCES MANAGEMENT DISTRICT
Chair
Riverside County Waste Resources Management District
Riverside, California
CALIFORNIA DEPARTMENT OF TRANSPORTATION
Director
California Department of Transportation
Sacramento, California
CITY OF CATHEDRAL CITY
Mayor
City of Cathedral City
Cathedral City, California
CITY OF COACHELLA
Mayor
City of Coachella
Coachella, California
CITY OF DESERT HOT PRINGS
1AA
Mayor
City of Desert Hot Springs
Desert Hot Springs, California
S2
Date:
Date:
Date:
Date:
Date: ll 3lts-
CITY OF IND IAN WELLS
May
City of Indian Wells
Indian. Wells, California
CITY OF INDIO
Mayor
City of Indio
India, California
CITY OF LA QUINTA
Mayor
City of La Quinta
La Quinta, California
CITY OF PALM DESERT
Mayor
City of Palm Desert
Palm Desert, California
CITY OF PALM SPRINGS
Mayor
City of Palm Springs
Palm Springs, California
[.IN
Date: -19
Date:
Date:
Date:
Date:
CITY OF INDIAN WELLS
Mayor
City of Indian Wells
Indian Wej15,.California
CITY OF INDIO
Mayor
City of Indio
Indio, California
CITY OF LA +QUINTA
Mayor
City of La Quinta
La Quinta, California
CITY OF PALM DESERT
Mayor
City of Palm Desert
Palm Desert, California
CITY OF PALM SPRINGS
Mayor
City of Palm Springs
Palm Springs, California
Date:
Date: 11q l
Date:
Date:
Date:
83
CITY OF INDIAN WELLS
Mayor
City of Indian Wells
Indian Wells, California
CITY OF INDIO
Mayor
City of Indio
Indio, California
CITY OF LA
Frank J. Sp v;
City of La CNi
City Manager
CITY OF PALM DESERT
Mayor
City of Palm Desert
Palm Desert, California
CITY OF PALM SPRINGS
Mayor
City of Palm Springs
Palm Springs, California
83
Date:
Date:
Date:
Date:
Date:
CITY OF INDLkN WELLS
Date:
Mayor
City of Indian Wells
Indian Wells, California
CITY OF INDIO
Date:
Mayor
City of Indio
Indio, California
CITY OF LA, QUINTA
Date:
Mayor
City of La Quinta
La Quinta, California
CITY OF PALM D ERT
r 60t�Date:
Mayor
City of Palm Desert
Palm Desert, California
CITY OF PALM SPRINGS
Mayor
City of Palm Springs
Palm Springs, California
83
Date:
CITY OF INDIAN WELLS
Mayor
City of Indian Wells
Indian Wells, California
CITY OF INDIO
Mayor
City of Indio
Indio, California
CITY OF LA QUINTA
Mayor
City of La Quinta
La Quinta, California
CITY OF PALM DESERT
Mayer
City of Palm Desert
Palm Desert, California
CITY OF PALM SPRJNGS
000
May
City of Palm Springs APPROVED BY! �NClL
Palm Springs, California
,ATTEST: j
e�/6tty Clerk
83
Date:
Date:
Date:
Date:
Date: 91 • r 7. !cf-
CITY OF RANCHO MIRAGE
` fP
Date:
Mayor
City of Rancho Mirage
Rancho Mirage, California
IMPERIAL IRRIGATION DISTRICT
Date:
Chair
Imperial Irrigation District
Imperial, California
COACHELLA VALLEY WATER DISTRICT
Date:
Chair
Coachella Valley Water District
Palm Desert, California
MISSION SPRINGS 'WATER DISTRICT
Date:.
Chair
Mission Springs 'Water District
Desert Hot Springs, California
CITY OF RANCHO MIRAGE
Date:
Mayer
City of Rancho Mirage
Rancho Mirage, California
IMPERIAL IRRIGATION' DISTRICT
Board is Date: 6- 6-
V e resident
Imperial Irrigation District
Imperial, California
COACHELLA VALLEY WATER DISTRICT
Date:,
ate:
Coachella Valley Water District
Palm Desert, California
MISSION SPRINGS WATER DISTRICT
Date;
ate:
Mission Springs Water District
Desert Hot Springs, California
84
CITY OF RANCHO MIRAGE
Date:
Mayor
City of Rancho Mirage
Rancho Mirage, California
IMPERIAL IRRIGATION DISTRICT
Date:
Chair
Imperial Irrigation District
Imperial, California
COACHELLA VALLEY WATER DISTRICT
Date:
Chair \
Coachella Valley Water District
Palm Desert, California
MISSION SPRINGS WATER DISTRICT
Chair
Mission Springs Water District
Desert Hot Springs, California
84
Date:
CITY OF RANCHO MIRAGE
Mayor
City of Rancho Mirage
Rancho Mirage, California
IMPERIAL IRRIGATION DISTRICT
Chair
Imperial Irrigation District
Imperial, California
COACHELLA VALLEY WATER. DISTRICT
Chair
Coachella Valley Water District
Palm Desert, California
MISSION SPRINGS WATER DISTRICT
President
Mission Springs Water District
Desert Hat Springs, California
Date:
Date:
Date;
Date:
84
78-495 CALLE TAMPICO
LA QUINTA, CA 92253
June 24, 2014
Katie Barrows
Coachella Valley Association of Governments
73-710 Fred Waring Drive
Suite 200
Palm Desert, CA 92260
OFFICE OF THE CITY CLERK
(760) 777-7103
FAX (760) 777-7107
Re: Implementing Agreement and Fourth Amendment Joint Powers Agreement
Creating the Coachella Valley Conservation Commission
Dear Ms. Barrows:
Per your instructions enclosed are two certified resolutions and 20 fully -executed
signature pages for both documents noted for the above mentioned project.
Once it has been fully executed by all cities please return a complete copy to us.
Should you have any questions, please contact Community Development Director
Les Johnson at (760) 777-7071.
Sincerely,
Pam Nieto
City Clerk Secretary
Enclosure
cc: Les Johnson
September 23, 2016
Frank Spevacek, City Manager
City of La Quinta
78-495 Calle Tampico
La Quinta, CA 92253
Dear Mr. Spevacek:
The Major Amendment to the Coachella Valley Multiple Species Habitat
Conservation Plan/Natural Community Conservation Plan (CVMSHCP) has received final
approval. The last step in the process was approval by the California Department of Fish
and Wildlife which took place on August 22, 2016. The City of Desert Hot Springs and
Mission Springs Water District are now full Permittees and we welcome them both.
Enclosed is the fully executed Second Amendment to the Implementing Agreement
for the CVMSHCP, with original signatures by each participating agency. On behalf of the
Coachella Valley Conservation Commission, I want to thank you and your agency for your
assistance in this process.
For further information or questions regarding the enclosed agreement, please
contact Katie Barrows, Director of Environmental Resources (kbarrowsncvag.org,
760.346.1127).
Sincerely,
Tom Kirk
Executive Director
P.S. Earlier this year, the CVMSHCP was highlighted in a PBS Newshour story: Balancing
Conservation and Development in the Coachella Valley. If you haven't had an opportunity to do so
it is worth a look: F>ttp://www.pbs,org/videc/2365705367/.
Ca[kedral Oily . Coachella . Deserl Not Springs . Indian Wells ' Indio . La Quin [a . Palm Desert . Palm Springs ' Pancko Mnage
COLMIy o� Piverside . Coachella Valley Water District 'Imperial Irrigation District . Mission Springs water District
RESOLUTION NO. 2014 - 021
A RESOLUTION OF THE CITY COUNCIL OF LA QUINTA
MAKING RESPONSIBLE AGENCY FINDINGS PURSUANT TO
THE CALIFORNIA ENVIRONMENTAL QUALITY ACT FOR
THE COACHELLA VALLEY MULTIPLE SPECIES HABITAT
CONSERVATION PLAN AND THE COACHELLA VALLEY
MULTIPLE SPECIES HABITAT CONSERVATION PLAN /
NATURAL COMMUNITY CONSERVATION PLAN, AS
REVISED BY THE MAJOR AMENDMENT; APPROVING THE
COACHELLA VALLEY MULTIPLE SPECIES HABITAT
CONSERVATION PLAN AND THE COACHELLA VALLEY
MULTIPLE SPECIES HABITAT CONSERVATION PLAN /
NATURAL COMMUNITY CONSERVATION PLAN, AS
REVISED BY THE MAJOR AMENDMENT; APPROVING THE
IMPLEMENTING AGREEMENT; AND ADOPTING
ENVIRONMENTAL FINDINGS PURSUANT TO THE
CALIFORNIA ENVIRONMENTAL QUALITY ACT
WHEREAS, the Coachella Valley Multiple Species Habitat Conservation
Plan/Natural Community Conservation Plan ("CVMSHCP") is a regional,
comprehensive, multi -jurisdictional Habitat Conservation Plan focusing on
Conservation of Federal and State -Listed Species, other rare and sensitive species,
and their Habitats, while maintaining opportunities for recreation and a strong and
sustainable environment for economic Development in the region; and
WHEREAS, the Coachella Valley Conservation Commission ("CVCC") is the
lead agency pursuant to the California Environmental Quality Act ("CEQA") (Public
Res. Code, § 21000 at seq.) and the State CEQA Guidelines (14 CCR § 15000 at
seq.); and
WHEREAS, a joint Final Recirculated Environmental Impact Report/Statement
("EIR/EIS") was previously prepared in February 2006 pursuant to CEQA and NEPA
("2006 Final MSHCP"), which provides a comprehensive assessment of the
potential environmental impacts that could result from the adopted CVMSHCP, and
provides the appropriate decision -makers with the required information upon which
to base a decision to adopt the amendment to the CVMSHCP; and
WHEREAS, thereafter the Plan was revised to remove the City of Desert Hot
Springs (the "City") as a Permittee and to reflect other project description
modifications and, as a result, the Coachella Valley Association of Governments
("CVAG") prepared a Recirculated Draft EIR/Supplemental Final EIS which it
certified in September 2007, (the "September 2007 Recirculated EIR/EIS"); and
Resolution No. 2014-021
Major Amendment to the Coachella Valley Multiple Species Habitat Conservation Plan
Adopted: June 4, 2014
Page 2
WHEREAS, the CVCC now wishes to add the City and Mission Springs
Water District as Permittees and so CVCC prepared a Major Amendment to the
CVMSHCP (the "Major Amendment"); and
WHEREAS, the Project proposed for approval is the inclusion into the
CVMSHCP, as revised by the Major Amendment, of the City of Desert Hot Springs
and Mission Springs Water District, as Permittees (the "Project"); and
WHEREAS, the Major Amendment includes the issuance of Take
Authorization associated with Covered Activities that are not currently included
under the existing federal Section 10(a) Permit and state NCCP Permit ("Permits").
This Major Amendment will restore the boundaries from the 2006 Final CVMSHCP
for the Upper Mission Creek/Big Morongo Canyon Conservation Area and would
include all of the private lands within the city limits of Desert Hot Springs. The
private lands to be included total approximately 770 acres that were removed from
this Conservation Area when Desert Hot Springs chose not to participate in 2006.
The city limits of Desert Hot Springs also include two parcels in the Whitewater
Canyon Conservation Area that are both owned by BLM and are currently managed
consistent with the Plan, therefore no additional disturbance associated with the
Major Amendment will occur in this area; and
WHEREAS, a Supplemental Environmental Impact Report/Environmental
Impact Statement ("EIR/EIS") has been prepared pursuant to State CEQA
Guidelines Section 15162 and CEO NEPA Regulations, 40 C.F.R. 1502.9(c) in
order to analyze all potential adverse environmental impacts of the Project; and
WHEREAS, CVCC, at a public meeting on March 13, 2014 reviewed the
Final Supplemental EIR/EIS, Major Amendment to the CVMSHCP and
CVMSHCP/Natural Communities Conservation Plan ("CVMSHCP"), Implementing
Agreement, and other related documents in the record before it and by Resolution
No. 2014-004, certified the Final Supplemental EIR/EIS, and approved the Major
Amendment to the CVMSHCP, and Implementing Agreement; and
WHEREAS, pursuant to State CEQA Guidelines sections 15091, 15096 sub.
(h), 15381, and other provisions of CEQA, the City is a responsible agency for the
Project and must therefore make certain findings prior to the approval of the
Project; and
WHEREAS, the City Council of the City, at its regularly scheduled public
meeting on June 3rd, 2014, independently reviewed and considered the Final
Supplemental EIR/EIS and other related documents in the record before it; and
WHEREAS, all the procedures of CEQA and the State CEQA Guidelines have
been met, and the Final Supplemental EIR/EIS, prepared in connection with the
Resolution No. 2014-021
Major Amendment to the Coachella Valley Multiple Species Habitat Conservation Plan
Adopted: June 4, 2014
Page 3
Major Amendment, as well as the September 2007 Recirculated EIR/EIS, are
sufficiently detailed so that all the potentially significant effects of the Project on
the environment and measures necessary to avoid or substantially lessen such
effects have been evaluated in accordance with the above -referenced Act and
Guidelines; and
WHEREAS, as contained herein, the City has endeavored in good faith to set
forth the basis for its decision on the Project; and
WHEREAS, all of the findings and conclusions made by the City Council
pursuant to this Resolution are based upon the oral and written evidence presented
to it as a whole and not based solely on the information provided in this Resolution;
and
WHEREAS, prior to taking action, the City Council has heard, been presented
with, reviewed and considered all of the information and data presented to it,
including the Draft Supplemental EIR/EIS, Final Supplemental EIR/EIS, the
September 2007 Recirculated EIR/EIS, and other documentation relating to the
Project, and all oral and written evidence presented to it;
WHEREAS, all other legal prerequisites to the adoption of this Resolution
have occurred; and
WHEREAS, the documents and other materials that constitute the record of
proceedings/administrative record for the City's approval of the Project are located
at La Quinta City Hall; and the custodian of these records is Frank Spevacek, City
Manager of the City.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of La
Quinta as follows:
SECTION 1. The Final Supplemental EIR/EIS prepared for the Major Amendment to
the CVMSHCP is hereby received by the City Council in the form attached hereto
as (Exhibit "A"), and incorporated herein by this reference. The September 2007
Recirculated EIR/EIS is hereby received by the City Council in the form attached
hereto as (Exhibit "B" ), and incorporated herein by this reference.
SECTION 2. The City Council hereby finds and determines that the September
2007 Recirculated EIR/EIS, as revised by the Final Supplemental EIR/EIS, has been
completed in compliance with CEQA and the State CEQA Guidelines and, as the
decision -making body for the City of La Quinta, the City Council has reviewed and
considered the information contained in the September 2007 Recirculated EIR/EIS,
as revised by the Final Supplemental EIR/EIS, and related documents before it and
Resolution No. 2014-021
Major Amendment to the Coachella Valley Multiple Species Habitat Conservation Plan
Adopted: June 4, 2014
Page 4
all of the environmental effects of the CVMSHCP, as revised by the Major
Amendment, and finds that the September 2007 Recirculated EIR/EIS, as revised
by the Final Supplemental EIR/EIS, reflects the independent judgment and analysis
of the City.
SECTION 3. The City Council concurs with the environmental findings in CVAG
Resolution No. 07-009 and CVCC Resolution No. 14-004 and adopts these
findings, attached hereto as (Exhibits "C" and "D"), respectively, and incorporated
herein by this reference.
SECTION 4. The City Council hereby approves the CVMSHCP (as amended by the
Major Amendment) and authorizes the Mayor to execute the Implementing
Agreement.
SECTION 5. The City Council hereby authorizes and directs that a Notice of
Determination shall be filed with the Clerk of the County of Riverside within five (5)
working days of approval of the Project.
PASSED, APPROVED, and ADOPTED at a regular meeting of the La Quinta
City Council, held on this 3rd, day of June, 2014, by the following vote:
AYES: Council Members Evans, Franklin, Henderson, Osborne, Mayor Adolph
NOES: None
ABSENT: None
ABSTAIN: None
(T)AM, L 0.
DON AD P yor
City of La Quinta, California
Resolution No. 2014-021
Major Amendment to the Coachella Valley Multiple Species Habitat Conservation Plan
Adopted: June 4, 2014
Page 5
ATTEST:
t?7�,
SUSAN MAYSELS, C y Clerk
City of La Quinta, California
(CITY SEAL)
APPROVED AS TO. FO1
M. ATHERINE JENSQN, y Attorney
City of La Quinta, Califor a
I, Susan Maysels, City Clerk of the City of La Quinta do hereby certify that the
foregoing Resolution No. 2014-021 was duly and regularly adopted by the City
Council at a regular meeting thereof, held on the 3rd day of June, 2014, and that
the foregoing is a full, true and correct copy of said Resolution.
Susan Maysels, Ity Clerk
Resolution No. 2014-021
Major Amendment to the Coachella Valley Multiple Species Habitat Conservation Plan
Adopted: June 4, 2014
Page 6
Due to the large document size of the exhibits referenced in the resolution a hard
copy has not been provided; however, they are available upon request.
The exhibits are also available to view on-line at http://www.cvmshcp.org/
Exhibit "A" — Final Supplemental EIR/EIS
ti-09052013.htm ,
r
Exhibit "B" — September 2007 Recirculated EIR/EIS
http://www.cvmshcp.org/Plan Documents. htm#plan
Exhibit "C" — CVAG Resolution No. 07-009 and
Exhibit "D" — CVAG Resolution No. 14-004
http://www.cvmshcp.org/Plan Documents DHS Major Amendment 09052013.htm
RESOLUTION NO. 2014 - 022
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
LA QUINTA TO ESTABLISH PROCEDURES AND
REQUIREMENTS FOR IMPLEMENTATION OF THE
COACHELLA VALLEY MULTIPLE SPECIES HABITAT
CONSERVATION PLAN AND THE COACHELLA VALLEY
MULTIPLE SPECIES HABITAT CONSERVATION PLAN /
NATURAL COMMUNITY CONSERVATION PLAN, AS
REVISED BY THE MAJOR AMENDMENT
THE CITY COUNCIL OF THE CITY OF LA QUINTA DOES HEREBY RESOLVE
AS FOLLOWS:
SECTION I. TITLE
This Resolution shall be known as the "Coachella Valley Multiple Species
Habitat Conservation Plan Implementation Policy."
SECTION II. FINDINGS AND PURPOSE
A. The City Council finds that the ecosystems of the City of La Quinta
("City"), the Coachella Valley and surrounding mountains located in
central Riverside County and the vegetation communities and sensitive
species they support are fragile, irreplaceable resources that are vital
to the general welfare of all residents; these vegetation communities
and natural areas contain habitat value which contributes to the
region's environmental resources; and special protections for these
vegetation communities and natural areas must be established to
prevent future endangerment of the plant and animal species that are
dependent upon them. This Resolution will protect the City's and the
region's biological resources, vegetation communities, and natural
areas, and prevent their degradation and loss by guiding development
outside of biological resource core areas, and by establishing
mitigation standards which will be applied to development projects.
Adoption and implementation of this Resolution will enable the City to
achieve the conservation goals set forth in the Coachella Valley
Multiple Species Habitat Conservation Plan ("CVMSHCP"), to
implement the associated Implementing Agreement executed by the
City Council on June 3, 2014, and to preserve the ability of affected
property owners to make reasonable use of their land consistent with
the requirements of the National Environmental Policy Act ("NEPA"),
the California Environmental Quality Act ("CEQA"), the Federal
Endangered Species Act ("FESA"), the California Endangered Species
Resolution No. 2014-022
CVMSHCP Implementation Agreement
Adopted: June 3, 2014
Page 2
Act ("CESA"), the California Natural Community Conservation
Planning Act ("NCCP Act"), and other applicable laws.
B. The purpose and intent of this Resolution is to maintain and restore
biological diversity and the natural ecosystem processes which
support this diversity, to protect vegetation communities and natural
areas within the City, the Coachella Valley and the surrounding
mountains located in central Riverside County which support species
covered under the CVMSHCP; to maintain a future of economic
development within the City by providing a streamlined regulatory
process from which development can proceed in an orderly process;
and to protect the existing character of the City and the region
through the implementation of a system of reserves which will provide
for permanent open space, community edges, and habitat
conservation for species covered by the CVMSHCP. The further
purpose of this Resolution is to reaffirm the previous Implementing
Resolution adopted by the Plan Permittees and to bring it forward to
reflect the Major Amendment to the Plan approved by Coachella Valley
Conservation Commission in March 2014.
SECTION III. APPLICATION OF REGULATIONS
Except as provided in Section IV, this Resolution shall apply to all land within
the City shown on the CVMSHCP Plan Area Map (which has been revised from the
original CVMSHCP Plan Area Map to reflect the Major Amendment), attached as
Exhibit "1" hereto. Upon application to the City for a development project, an
applicant shall be required to comply with the procedures set forth in this
Resolution. Upon the City's initiation of a project that is subject to CEQA, the City
shall be required to comply with the procedures set forth in this Resolution. No
project requiring a discretionary, or certain ministerial permits or approvals that
could have adverse impacts to species covered under the CVMSHCP shall be
approved by the City, and no City -initiated public project shall be undertaken,
unless the project is consistent with the CVMSHCP and this Resolution.
SECTION IV. EXEMPTIONS
This Resolution shall not apply to the following:
A. The adoption or amendment of the City's General Plan.
B. The adoption or amendment of any land use or zoning ordinance.
C. Any project for which and to the extent that a vesting tentative map
pursuant to the Subdivision Map Act, or a development agreement
Resolution No. 2014-022
CVMSHCP Implementation Agreement
Adopted: June 3, 2014
Page 3
pursuant to Government Code sections 65864 et seq., approved or
executed prior to adoption of this Resolution, confers vested rights
under the City's ordinances or state law to proceed with the project
notwithstanding the enactment of this Resolution. Projects subject to
this exemption must comply with all provisions of any applicable state
and federal law.
D. Any project for which the City Council determines that application of
this Resolution would result in the property owner being deprived of all
reasonable economic use of the property in violation of federal or state
constitutional prohibitions against the taking of property without just
compensation.
SECTION V. PROCEDURES
A. The City shall ensure compliance with Conservation Area requirements
and measures as set forth in Section 4 of the CVMSHCP.
B. The City shall impose, as a condition to the City's approval of a
discretionary project and certain ministerial projects, such conditions
as are necessary to ensure surveys are prepared for the project as
required by Sections 4.3 and 4.4 of the CVMSHCP.
C. The City shall impose as a condition to the City's approval of a project
such conditions as necessary to ensure the project complies with and
implements the applicable Land Use Adjacency Guidelines set forth in
Section 4.5 of the CVMSHCP.
D. The City shall ensure that public and private projects comply with the
Avoidance, Minimization and Mitigation Measures set forth in Section
4.4 of the CVMSHCP.
E. The City shall transmit any collected Local Development Mitigation
Fees, other appropriate fees and associated interest as described in
Section 5.2.1.1 of the CVMSHCP to the CVCC at least quarterly.
F. The City shall contribute appropriate mitigation for City public projects
as set forth in the CVMSHCP.
G. The City shall participate as a member agency in the CVCC as set
forth in Section 6.1.1 of the CVMSHCP.
H. The City shall participate as a member of the BMOC as set forth in
Section 6.1.3 of the CVMSHCP, as appropriate.
Resolution No. 2014-022
CVMSHCP Implementation Agreement
Adopted: June 3, 2014
Page 4
The City shall participate in the Joint Review Process as set forth in
Section 6.6.1.1 of the CVMSHCP for projects in the Conservation
Areas.
J. The City shall manage CVMSHCP Reserve System lands and
conservation easements owned or leased by the City pursuant to
Sections 8 and 9 of the CVMSHCP.
K. The City shall maintain a record of total acres developed and their
location within City jurisdiction and transmit such information monthly
to the CVCC.
L. The City shall transmit any changes in City boundaries or general plan
land use designations to the CVCC at the end of each calendar year.
M. Pursuant to the CVMSHCP, the City may transfer any property interest
acquired or obtained in fee title or as a conservation easement to the
CVCC for management. The City may also grant a conservation
easement to the California Department of Fish and Game for any
property interest obtained pursuant to Section V of this Resolution.
N. Carry out all other applicable requirements of the CVMSHCP.
SECTION VI. DEFINITIONS
For purposes of this Resolution, the following terms shall have the meaning
set forth herein:
A. "Area Plan" means a community planning area defined in the County
of Riverside General Plan. Four County of Riverside Area Plans are
located within the CVMSHCP Plan Area.
B. "Conservation Areas" means a system of lands described in Section
4.3 of the CVMSHCP that provide Core Habitat and Other Conserved
Habitat for the Covered Species, conserve natural communities,
conserve Essential Ecological Processes, and secure Biological
Corridors and Linkages between major habitat areas. There are 21
Conservation Areas from which the CVMSHCP Reserve System will be
assembled.
C. "CVMSHCP" means the Coachella Valley Multiple Species Habitat
Conservation Plan/Natural Community Conservation Plan, as amended
by the Major Amendment.
Resolution No. 2014-022
CVMSHCP Implementation Agreement
Adopted: June 3, 2014
Page 5
D. "Map of CVMSHCP" means the map of the area encompassed by the
CVMSHCP as set forth in the attached Exhibit "1."
E. "Discretionary Project" means a proposed project requiring
discretionary action by a Permittee, as that term is used in CEQA and
defined in State CEQA Guidelines section 15357.
SECTION VII. EFFECTIVE DATE
The Mayor shall sign this Resolution and the City Clerk shall attest thereto,
and thereupon and thereafter this Resolution shall take effect and be in force
according to law.
PASSED, APPROVED, and ADOPTED at a regular meeting of the La Quinta
City Council, held on this 3'd, day of June, 2014, by the following vote:
AYES: Council Members Evans, Franklin, Henderson, Osborne, Mayor Adolph
NOES: None
ABSENT: None
ABSTAIN: None
n, �L -
DON ADO LPH, M or
City of La Quinta, California
ATTEST:
SUSAN MAYSELS, CiN Clerk
City of La Quinta, California
(CITY SEAL)
Resolution No. 2014-022
CVMSHCP Implementation Agreement
Adopted: June 3, 2014
Page 6
APPROVED AS TO FORM:
Y
t elyl-N -
M. KATHERINE JENSON,&fty Attorney
City of La Quints, California
I, Susan Maysels, City Clerk of the City of La Quinta do hereby certify that the
foregoing Resolution No. 2014-022 was duly and regularly adopted by the City
Council at a regular meeting thereof, held on June 3, 2014, and that the foregoing
is full, true and correct copy of said Resolution.
G
SUSAN MAYSELgj City Clerk
Exhibit I
Major Amendment to Coachella Valley Multiple Species Habitat Conservation Plan (CVMSHCP)
Area
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0 0.5 1 1.5 Y 3.5 3
/VHighways
City Boundary
IfIDesert Hot Springs Boundary
d Mission Springs water District Boundary
a Additions to Conservation Area
Whitswater Floodplain
— — — — — Conservation Area
Willow Hole
` Conservatioi
Area