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HomeMy WebLinkAboutContract 1775SECOND 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 Pa2e(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 -i- 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 Purpose Permit 6 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- 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 -vll- 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 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 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 1. PARTIES This Second Amendment to the Implementing Agreement ("Agreement"), made and entered into as of this day of , 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 2.15 "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 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, 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. 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 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. 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 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; 15 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. 17 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. 19 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. I. 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 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. 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 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 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, 29 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 31 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. 33 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 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 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. 39 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. 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 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 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. 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 49 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 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 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 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 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. 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 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 either actual damages or the inadequacy of otherwise available legal remedies, or for other equitable relief. The notifying Party 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 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 of: 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 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 Deputy Director Habitat Conservation Division California Department of Fish and Wildlife 1416 Ninth Street, 13th Floor Sacramento, California 95814 Telephone: 916-653-1070 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: 760-770-0399 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 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 69 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 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 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 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 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 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. 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. UNITED TATES FISH AND WILDLIFE SERVICE Deputy' • : onal Director United Stats Fish and Wildlife Service Pacific Sou hwest Region Sacramento, California CA LI FO R N I A DI TA R' I'M FNT OF FISH AND WILDLIFE Deputy Director Ecosystem Conservation Division California Department of Fish and Wildlife Sacramento, Cal i fornia CALIFORNIA DEPARTMENT OF FISH AND WILDLIFE Regional Manager Inland Deserts Region California Department of Fish and Wildlife Ontario, California 79 Date: IVO ` S Date: Date: 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. 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: 2-2-; g Date: CALIFORNIA DEPARTMENT OF FISH AND WILDLIFE General Counsel (approval as to form) California Department of Fish and Wildlife Sacramento, California COACHELLA VALLEY ASSOCIATION OF GOVERNMENTS (IA 124 Chair of the Executives Committee Coachella Valley Association of Governments Palm Desert, California COACHELLA V rY CONSERVATION COMMISSION Chair Coachella Valley Conservation Commission Palm Desert, California 80 Date: Date: % -30 -/4 Date: 3 - / 3 - /Li COACHELLA VALLEY MOUNTAINS CONSERVANCY Chair Coachella V. ey 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 CQntrol 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: Date: Date: Date: COACHELLA VALLEY MOUNTAINS CONSERVANCY Chair Coachella Valley Mountains Conservancy Palm Desert, California RIVERSIDE COUNTY BOARD OF SUPERVISORS th.,,�i Cha' oft e e . d "of''SGpervisors JEFF STONE Rive ' - Coin Board of Supervisors Riverside, California RIVERSIDE COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT Chair Riverside County Flood Control and Water Conservation District Riverside, California o } CALIFORNIA DEPARTMENT OF PARKS AND RECREATION m 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: Date: Date: Date: 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 mAgfON ASHLEY 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 Date: Date: Date:IjYt 1/(1' Date: Date: COACHELLA VALLEY MOUNTAINS CONSERVANCY Date: 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 towd,444 Director of State Parks (J 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: Date: 9` 21'6 Date: 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 IN JEFFRIESP Q Riverside County Regional ark and Open Space District Riverside, California 81 Date: Date: Date: Date: Date: CC Cl. r CO I—w RIVERSIDE COUNTY WASTE RESOURCES MANAGEMENT DISTRICT 0i .wrv- Chair Rivers • 'ounty 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 Hot Springs, California 82 Date: Date: Date: Date: Date: RIVERSIDE COUNTY WASTE RESOURCES MANAGEMENT DISTRICT Chair Riverside County Waste Resources Management District Riverside, California CALIFORNIA DEPARTMENT OF TRANSPORTATION Dist ct Director, istrict 8 Ca 'fornia Department of Transportation n 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: 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 City o Cathedrity Mayo Cathedral City, alifornia 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: C l (Ci 2-0V+ 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: 12-1!/7-0P1 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 SPRING dt/AA_/dA-e,.../‘-) Mayor City of Desert Hot Springs Desert Hot Springs, California 82 Date: Date: Date: Date: Date: 16 13 /15 CITY OF INDIAN WELLS c _" Date: 6 -ML/ —! / 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 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: 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 Mayor City of Palm Desert Palm Desert, California CITY OF PALM SPRINGS Mayor City of Palm Springs Palm Springs, California 83 Date: Date: //q// Date: Date: 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 Q nk J. Spevacelt,tity Manager City of 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 83 Date: Date: Date; Date: 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 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: June 26, 2014 Date: ATTEST: 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 Mayor City of Palm Desert Palm Desert, California CITY OF PALM SPRINGS R e Mayor City of Palm Springs Palm Springs, California City Clerk APPROVED BY CITY COUNCIL bL a2)601 1.3 .14 tb\ ?Del 83 Date: Date: Date: Date: Date: g • /% f CITY OFNCHO MIRAGE V........),7 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 Chair Mission Springs Water District Desert Hot Springs, California 84 Date: _ % ' 020 1 Date: Date: Date: CITY OF RANCHO MIRAGE Mayor City of Rancho Mirage Rancho Mirage, California IMPERIAL IRRIGATION DISTRICT Board Vice resident Imperial Irrigation District Imperial, California Date: ` - • ��I% Date: COACHELLA VALLEY WATER DISTRICT Chair Coachella Valley Water District Palm Desert, California MISSION SPRINGS WATER DISTRICT Chair Mission Springs Water District Desert Hot Springs, California 84 Date: 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 Chair Mission Springs Water District Desert Hot Springs, California 84 Date: Date: Date: b 1 1'1 r 1 L( 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 Preside "~~ 14'tii2f;s& Mission Springs Water District Desert Hot Springs, California 84 Date: Date: Date: Date: 7- 2 - /