Loading...
Riverside Co/Fringe Toed Lizard 86This Agreement is made and entered into this 21st day of April , 1986 by and between THE UNITED STATES FISH & WILDLIFE SERVICE ("FWS"), THE COUNTY OF RIVERSIDE, a political subdivision of the State of California, ("County"), THE CITIES OF DESERT HOT SPRINGS, PALM SPRINGS, CATHEDRAL CITY, RANCHO MIRAGE, PALM DESERT, INDIAN WELLS, LA QUINTA, INDIO and COACHELLA, all Municipal corporations of the State of California, ("Cities"), and THE NATURE CONSERVANCY, a District of Columbia non-profit corporation, ("TNC"). FOR AND IN CONSIDERATION of the mutual covenants and agreements contained herein, the parties do hereby agree as follows: I. RECITALS. A. The Coachella Valley Fringe -Toed Lizard ("CVFTL"), has been designated a "threatened" species by the United States government under the authority of the Endangered Species Act, 16 U.S.C. 1531 et. seq., as amended ("ESA"). The historical range of the CVFTL includes lands within the jurisdiction of the County and the Cities. B. The Coachella Valley Fringe -Toed Lizard Habitat Conservation Plan ("HCP") describes a cooperative federal and local program of conservation for the CVFTL. The plan is a product of lengthy study and represents coordination of private development and conservation interests with federal, state and local government. The plan was drafted by the CVFTL Steering Committee. The Steering Committee consists of representatives from the County and the Cities, Coachella Valley Water District, California Department of Fish and Game ("CDFG"), FWS, Bureau of Land Management ("BLM"), the Agua Caliente Band of Cahuilla Indians, local development interests, conservation groups, TNC and scientists. C. The HCP establishes the conditions under which the County and the Cities are seeking a Permit to allow taking of CVFTL incidental to development and other land uses in a portion of the Coachella Valley. The Permit being sought would be issued by the United States Department of the Interior under Section 10(a) of the ESA. It is proposed that the Permit be issued for a term of thirty (30) years. D. The HCP is attached hereto, marked Exhibit "A" and by this reference made a part hereof. E. The purpose of this contract is to define the re- spective rights and obligations of the parties hereto with re- spect to the implementation of the HCP. Notwithstanding the fact that the HCP constitutes a portion of this Agreement, it is understood and agreed that many portions thereof involve parties other than the parties hereto. Nothing contained within the HCP shall be construed to expand the obligations of any party beyond the specific obligations agreed to hereunder. In the event of any conflict between the provisions of the HCP and this contract, the provisions of the contract shall control. -2- MEE/071531-A II. DEFINITIONS. A. Terms. as defined in the HCP shall have the same meaning when utilized in this Agreement, except as specifically noted. III. DESIGNATION OF RESERVES AND ESTABLISHMENT OF MITIGATION FEES. A. An integral and essential part of the HCP is the acquisition, establishment, maintenance, management and preserva- tion of three (3) reserves located within the Coachella Valley. These reserves are designated: (1) The Coachella Valley Preserve ("CVP"). (2). The Willow Hole/Edom Hill Reserve ("WH/EHR"). (3) Whitewater Flood Plain Reserve ("WFPR"). B. The WH/EHR and the WFPR shall be managed by the BLM and except as specifically noted herein, are not the subject of this agreement. C. The CVP as described in the HCP must be acquired by FWS, BLM, CDFG, and TNC (collectively referred to hereinafter as "the Owners"). D. Funds to purchase the CVP shall be derived from several sources including the State of California, the Bureau of Land Management, the Land and Water Conservation Fund, The Nature Conservancy as well as mitigation fees collected from persons, firms or entities which develop or otherwise disturb any parcel of land located within the Fee Assessment Area as defined in the HCP. am MEE/071531-A E. Mitigation fees are an essential funding source, without which the CVP could not be acquired, maintained and man- aged. Mitigation fees shall be utilized solely and exclusively for the acquisition, maintenance and management of the CVP except for fees collected as a result of the development of land located within District 4 as set forth in the HCP, which funds shall be used solely for the acquisition of the WH/EHR. F. The parties hereby agree that a mitigation fee of $600.00 per acre for land located within the Fee Assessment Area (prorated for portions of an acre) until a total of Seven Million Dollars ($7,000,000.00) has been collected and thereafter a miti- gation fee of $100.00 per acre for lands located within the Fee Assessment Area (prorated for portions of an acre) for the term of the 10(a) Permit (but in no event to exceed 30 years) is a fair and adequate fee to be paid by those who disturb vacant land within the Fee Assessment Area and, when added to other funding sources set forth in the HCP, are sufficient to acquire, manage and maintain the CVP. G. Mitigation fees shall apply to all vacant lands lo- cated within the Fee Assessment Area. The term "land located within the Fee Assessment Area" shall not include: (1) Federal land exempted from the mitigation fee after consultation with FWS pursuant to Section 7 of ESA. (2) Lands used by local, state or federal govern- ments for governmental purposes (e.g., public works, schools). (3) Land for which a mitigation fee in the amount set forth in Paragraph F above has been previously paid. -4- MEE/071531-A (4) Land, which as of August 4, 1982, was being utilized for agricultural purposes. (5) Land which is placed into agricultural use after August 4, 1982; provided, however, in the event any such land is later converted to any use other than agriculture, such land shall be considered land located within the Fee Assessment Area. IV. OBLIGATIONS OF THE PARTIES. A. COUNTY AND CITIES. (1) Neither -the cities nor the County shall issue any building or grading permit for any parcel of land located within the Fee Assessment Area, nor shall they issue any permit or development approval which will allow any disturbance of any parcel of land located within the Fee Assessment Area by any per- son, firm or entity prior to the payment of the mitigation fee to The Nature Conservancy as hereinafter provided. Written notice from TNC or its agent to the County or City having jurisdiction over any such parcel shall be deemed to be sufficient evidence to the County or City involved that the mitigation fee has been paid. (2) Upon receipt of evidence from TNC or its agent that the mitigation fee has been paid, the County or City having jurisdiction over the land may issue a subpermit which will allow the CVFTL to be incidentally taken upon the land for which the fee has been paid during the course of otherwise lawful activi- ties, pursuant to the provisions of 50 CFR 13.25. -5- MEE/071531-A (3) In the event the County or any City has know- ledge that any person, firm or entity has disturbed or is dis- turbing any parcel of land within the initial Fee Assessment Area without payment of the mitigation fee, it will take any action that is appropriate to terminate the disturbance or, in the case where the disturbance has been completed, it will refuse to issue any permits for the use or occupancy of the disturbed parcel un- til the mitigation fee has been paid, and it shall immediately notify FWS of any such incidence together with the location of the parcel if known to the County or the City, and the identity of the person, firm or entity disturbing land without payment of the mitigation fee. (4) With respect to any project proposed within any reserve, at or prior to the initial project approval, (in- cluding applications in connection with zoning, specific plans, subdivision tract maps, use permits, planned developments, or building and grading permits) copies of all application materials shall be sent by the local agency to FWS and CDFG. FWS and CDFG shall have ninety (90) days to comment upon the application be- fore a public hearing is held to consider any such application. In the event such application requires a public hearing pursuant to any provision of state of local law, the hearing as specified hereunder shall be held in conjunction with any such hearing. In the event such application does not require public hearing under any provision of state or local law, the hearing as specified hereunder shall be held in conjunction with any such hearing. In the event such application does not require public hearing under OM MEE/071531-A any provision of state of local law, such hearing shall be held pursuant to the provisions hereof and notice shall be given as provided in California Government Code Section 65091 or any suc- cessor statutes. After the public hearing as herein provided, the local agency shall either approve or deny such application, provided that in no event shall an agency approve an application without first making written findings that the application com- plies with the 10(a) Permit granted contemporaneously herewith or with a 10(a) Permit separately issued by the Fish and Wildlife Service. (5) Neither the County nor any City shall be pro- hibited from changing any zone classification or approving any project outside of any reserve (but within the HCP area) provided that it shall not approve any such zone change or project whose cumulative effect would be to render invalid any finding upon which the 10(a) Permit is based (16 U.S.C. 1539(a)). B. FISH AND WILDLIFE SERVICE. (1) Upon finding, after opportunity for public comment, with respect to a 10(a) Permit application and the re- lated HCP that: (a) Any permitted taking of the CVFTL will be incidental to the carrying -out of otherwise lawful activities; and, (b) The HCP and its implementing agreements will, to the maximum extent practicable, minimize and mitigate the impacts of such incidental taking; and, -7- MEE/071531-A (c) The mitigation fees and other funds pro- vided for in Section III of the Agreement will ensure that ade- quate funding for the HCP will be provided; and, (d) Any permitted taking of CVFTLs will not appreciably reduce the likelihood of the survival and recovery of the species in the wild; and, (e) Any measures required by the FWS as set forth in the HCP as being necessary or appropriate for purpose of the HCP will be met. FWS shall issue to the Cities and County a Section 10(a) Permit. Such Permit shall be issued concurrently with the execu- tion of this Agreement by FWS and this Agreement shall not become effective nor binding upon any party hereto until and unless the 10(a) Permit has been granted. Service shall: (2) After issuance of a Section 10(a) Permit the (a) Monitor the implementation of the 10(a) Permit and the activities thereunder; and, (b) Monitor the management, operation and maintenance of the reserves in order to assure compliance with the HCP. C. TNC. (1) TNC shall establish an office or otherwise contract for a service within the Coachella Valley which shall be open to the public during normal business hours for the purpose of collecting mitigation fees. WE MEE/071531-A (2) Upon receipt of mitigation fees calculated in accordance with Paragraph III.F. hereof, TNC or its agent shall certify to the County or City that have jurisdiction over the land for which the mitigation fee has been paid, the amount of the fee paid, the total number of acres for which the fee was paid and the legal description of the property for which the fee was paid as provided by the person, firm or entity paying the fee. Such certification shall be in writing. (3) TNC shall establish one or more interest bear- ing trust accounts to receive and hold the mitigation fees. (4) TNC shall utilize the fees for those purposes set forth in Paragraph III.E. hereof. (5) TNC shall use its best efforts to acquire all portions of the CVP not previously acquired by CDFG, BLM and FWS. The order and timing of acquisition and the purchase price; the incurring of indebtedness and the delegation of fees to over- head and administrative expenses, in accordance with generally accepted accounting principles; and all other matters with re- spect to the management of mitigation fees and the acquisition, maintenance and management of the CVP by TNC shall be subject to the reasonable discretion of TNC, consistent with its obligations under this Agreement. (6) The Nature Conservancy shall prepare and pre- sent to the Cities and the County, FWS and CDFG,on or before July 1st of every other year during the term of this Agreement and within three (3) months after the termination of this Agreement, certified audits setting forth the source and utilization of all Q'10 MEE/071531-A sums received by it pursuant to this Agreement. The Nature Conservancy shall be entitled to utilize mitigation fees for the expense of such audits. (7) TNC may purchase lands within the CVP and take title in its own name. TNC shall not sell or convey any portion of the lands acquired by it except to one or more local, state or federal governmental entities whose purpose is to acquire, manage and maintain the CVP. D. Neither this Agreement nor the HCP shall be deemed to make any party to this Agreement the agent for or partner of any other party to this Agreement. V. REMEDIES AND ENFORCEMENT. A. Remedies in General. Except as set forth in Sec- tion V.A.(1) below, each of the parties hereto shall have all of the remedies available in equity (including specific performance and injunctive relief) and at law to enforce the terms of this Agreement, the Section 10(a) Permit and grading and building per- mits and to seek remedies and compensation for any breach hereof, consistent with and subject to the other terms hereof. (1) No party shall be liable in damages to any party or 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 liabil- ity they would possess for their present and future acts or failure to act without the existence of this Agreement. -10- MEE/071531-A (b) All parties shall retain whatever liabil- ity they possess as holders of interests in land. (2) The parties acknowledge that the CVFTL is unique and that its loss as a species would result in irreparable damage to the environment and that therefore injunctive and temporary relief may be appropriate in certain instances involv- ing a violation of this Agreement. B. Section 10(a) Permit. (1) Authority of County and Cities. In addition to the provisions of Section.V.A., the County and Cities shall be empowered to exercise all .legal and equitable remedies available to them in assuring that the terms of this Agreement and the Section 10(a) Permit are complied with. The Cities and County shall have the right to revoke, terminate or suspend the right of any landowner to enjoy or have the benefit, right or privileges under the Section 10(a) Permit by terminating or suspending subpermits or building or grading permits in the event the miti- gation fee has not been paid or in the event it has knowledge that any person, firm or entity is taking CVFTLs which taking is not incidental to an otherwise lawful course of conduct. In the event any City or County shall terminate or suspend any sub - permit, it shall promptly notify FWS and CDFG in writing of such termination or suspension and shall set forth in writing the basis for such termination or suspension. (2) The violation of the Section 10(a) Permit with respect to any one or more particular parcels of land or portions thereof within the County or any one City shall not adversely -11- MEE/071531-A affect or be attributed to nor shall it result in a loss or diminution of any right, privilege or benefit hereunder of any other City, County or any other parcel of land. The past conduct of a violator with respect to one parcel of land may be con- sidered in determining the appropriate remedies with respect to such violator's activities with respect to another parcel of land. (3) Permit Suspension, Revocation or Termination. (a) Suspension. (i) Subject to the provisions of para- graph B(2) of this Section, the FWS may suspend the Section 10(a) Permit for any violation of the Permit or this Agreement, whose affect is to render invalid any finding upon which the 10(a) Permit is based (16 U.S.C. 1539(a)). (ii) Except where the FWS determines that emergency action is necessary to protect any endangered or threatened species, the FWS shall not suspend the Section 10(a) Permit without first: a. Requesting the affected City or County to take appropriate remedial or enforcement actions; and b. Providing to the affected City or' County permittee notice in writing of the facts or conduct which may warrant the suspension and an opportunity to demon- strate or achieve compliance with the Permit and this Agreement. (iii) Any suspension under this subsection shall be lifted immediately upon the reasonable determination by the FWS that the violation(s) has been effectively redressed. As -12- MEE/071531-A soon as possible, but no later than ten (10 ) working days after any suspension under this subsection, the FWS shall consult with the affected permittee concerning actions to be taken to effec- tively redress the violation(s) that necessitated the suspension. At the conclusion of any such consultations, the FWS shall make a determination of the actions necessary to effec- tively redress the violation(s). In making this determination the FWS shall consider the conservation needs of the CVFTL and any comments or recommendations received during the consulta- tions. As soon as possible, but no later than ten (10 ) working days after the conclusion, of the consultations, the FWS shall transmit to the affected permittee(s) written notice of the FWS determination of the actions necessary to effectively redress the violation(s). Upon full performance of the necessary actions specified by the FWS in its written notice, the FWS shall imme- diately lift the suspension. (iv) It is the intent of the parties hereto that in the event of any suspension of the 10(a) Permit all parties shall act expeditiously to cooperate to lift any suspension to carry out the objective of this Agreement. (b) Revocation or Termination (i) The FWS shall not revoke or termin- ate the Section 10(a) Permit for violation of the Permit or this Agreement unless the FWS determines that such violation: a. Involves a taking of an endan- gered or threatened species; and, -13- MEE/071531-A b. Has significantly and adversely affected such species throughout its range; and, C. Cannot be effectively redressed by other remedies or enforcement action. (ii) The FWS shall not revoke or termin- ate the Section 10(a) Permit without first: a. Requesting the appropriate City or County to take appropriate remedial or enforcement action; and, b. Providing to the affected City or County permittee notice in writing of the facts or conduct which may warrant the revocation or termination and a reasonable opportunity (but not less than sixty (60) days) to demonstrate or achieve compliance with the Permit and this Agreement. (c) Severability. Subject to the provisions set forth in Paragraph 3(b)(i) hereof, revocation or termination of the Section 10(a) Permit (or any right, benefit or privilege of the Section 10(a) Permit) as to a specific parcel of land, or as to the County, or any City, shall not result in revocation or termination of the Section 10(a) Permit or affect the benefits, rights or privileges with respect to any other parcel of land, County or any other City. C. Limitations and Extent of Enforceability. It is acknowledged that the purpose of this Agreement is to set forth the obligations and rights of the parties hereto with respect to the Habitat Conservation Plan and to provide for the conservation of the CVFTL and the mitigation and compensatory measures -14- MEE/071531-A required in connection with the development and conversion of land outside of the. reserves and within the Fee Assessment Areas from habitat to other uses. Accordingly, to the extent permitted by law, no further mitigation or compensation for the conservation of the CVFTL will be required by any party hereto or any landowner. Except as otherwise specifically provided herein, nothing herein contained shall be deemed to limit the power of the Cities and the County to regulate the use of lands within their respective jurisdictions subject to such other limitations as may apply to such power under the Constitution and laws of the United States and the State of California. Furthermore, nothing herein contained is intended to limit the authority of the United States government to invoke the penalties provided for the ESA. VI. AMENDMENTS. A. This Agreement may be amended only in accordance with the provisions of Section VIII E. of the Habitat Conservation Plan. VII. MISCELLANEOUS PROVISIONS. A. Successors and Assigns. The terms, provisions and conditions of this Agreement shall be binding upon the parties hereto and their respective successors and assigns and shall inure to the benefit of the parties hereto and such successors and assigns as may be expressly assigned the benefits hereof by any party hereto. -15- MEE/071531-A B. Notices. Notices provided for shall be delivered to the persons set forth below or shall be deemed given twenty (20) days after deposit in the United States mail, certified and postage prepaid, return receipt requested and addressed as fol- lows or at such other further address which any party hereto may from time to time give notice to the other parties. CITY OF COACHELLA Attention: City Manager 1515 6th Street Coachella, CA. 92236 CITY OF CATHEDRAL CITY Attention: City Manager 68625 Perez Road Cathedral City, CA. 92234 CITY OF PALM DESERT Attention: City Manager 73510 Fred Waring Drive Palm Desert, CA. 92260 CITY OF LA QUINTA Attention: City Manager 78105 Calle Estado La Quinta, CA. 92253 COUNTY OF RIVERSIDE Attention: Planning Director 4080 Lemon Street Riverside, CA. 92502 THE NATURE CONSERVANCY 785 Market Street San Francisco, CA. 94103 THE UNITED STATES FISH AND WILDLIFE SERVICE 2800 Cottage Way, Room E=1825 Sacramento, CA. 95825 C. Entire Agreement. CITY OF INDIO Attention: City Manager 100 Civic Center Mall Indio, CA. 92201 CITY OF RANCHO MIRAGE Attention: City Manager 69825 Highway 111 Rancho Mirage, CA. 92270 CITY OF INDIAN WELLS Attention: City Manager 44950 Eldorado Drive Indian Wells, CA. 92260 CITY OF DESERT HOT SPRINGS Attention: City Manager 11711 West Drive Desert Hot Springs, CA. 92240 CITY OF PALM SPRINGS Attention: City Manager Post Office Box 1786 Palm Springs, CA. 92263 THE UNITED STATES FISH AND WILDLIFE SERVICE 500 N.E. Multnomah, Suite 1692 Portland, Oregon 97232 This Agreement supersedes any and all other Agreements either oral or in writing between the -16- MEE/071531-A i parties hereto with respect to the subject matter hereof and contains all of the, covenants and agreements between the parties with respect to said matter, and each party to this Agreement acknowledges that no representation, inducements, promises or j agreements orally or otherwise, have been made by any party or anyone acting on behalf of any party, which are not embodied herein, and that no other amendment, statement or promise not contained herein shall be valid or binding. D. Attorneys' Fees. If any action at law or in equi- ty, including any action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, all par- ties to the litigation shall bear their own attorneys' fees and costs. Attorneys' fees and costs against the United States, however, shall be governed by applicable federal law. E. Duplicate Originals. This Agreement shall be executed in any number of duplicate originals. A complete origi- nal of this Agreement shall be maintained in the official records of each of the parties hereto. F. Terms of Agreement. Except as otherwise provided herein this Agreement shall take effect upon execution by the parties and shall continue in force for the duration of the Section 10(a) Permit. G. Default. A default by any party in an obligation set forth herein shall not result in nor be the basis for the termination or rescission of this Agreement unless such default results in the revocation of the Section 10(a) Permit. -17- MEE/071531-A IN WITNESS WHEREOF, the parties have executed this Agreement as of the date last set forth below and agree to abide by its terms from that date forward. DATED: Y ATTEST - DATED: /—/49—ec- ATTEST: CITY OF COACHELLA CITY OF INDIO IFi��.'%1 19`S By DATED: CITY OF CATHEDRAL CITY ATTEST: By?/I.r DATED: ATTEST: Au� DATED: ?`/ -2d� CITY OF RANCHO MIRAGE /<i S1 i CITY OF PALM DESERT ATTEST: By c U -18- MEE/071531-A DATED: , Zc-. 198S CITY OF INDIAN WELLS of CITY OF LA QUINTA ATTES DATED: By CITY OF DESERT HOT SPRINGS ATTEST: . f &QAt--�2,/'� ATTEST: D:.TE.D: 11 - /s- eS CITY OF PALM SPRINGS By THE NATURE CONSERVANCY By l By - DATED: ��/S� THE COUNTY OF RIVERSIDE BY By( -19- MEE/071531-A e r DATED: Z �o THE UNITED STATES FISH AND WILDLIFE SERVICE j B Y� By -20- MEE/071531-A