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
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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
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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
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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.
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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
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loss and species endangerment, and creates a plan to mitigate for the potential loss of Covered
Species and their habitats due to the direct and indirect impacts of future development of both
private and public lands within the Plan Area; and
WHEREAS, the MSHCP, this Agreement and the Permits establish the conditions under
which the Permittees will receive from the USFWS and CDFW certain long-term Take
Authorizations and other assurances that will allow the taking of Covered Species incidental to
lawful uses authorized by the Permittees; and
WHEREAS, Permittees will, for the benefit of public and private property owners and
other project proponents within the MSHCP boundaries, transfer Take Authorization received
from the Wildlife Agencies through the land use entitlement process, issuance of Certificate of
Inclusion or other appropriate mechanism as set forth in the MSHCP and this Agreement; and
WHEREAS, Permittees, with technical assistance from the USFWS and CDFW, have
prepared the MSHCP as part of their application for Take Authorization for Covered Species, as
defined below, to the Wildlife Agencies under FESA and the NCCP Act, which describes the
biological impacts of the MSHCP on the Covered Species and their habitats, and defines the
comprehensive avoidance, minimization, conservation and mitigation measures required to avoid
and mitigate effects of Take of Covered Species from Permittees' Covered Activities; and
WHEREAS, the MSHCP has been developed through a cooperative effort involving
USFWS, CDFW, local governmental agencies, property owners, development interests,
environmental interest groups and other members of the public.
AGREEMENT
THEREFORE, the Parties do hereby understand and agree as follows:
4. PURPOSES
The purposes of this Agreement are:
4.1 To ensure implementation of each of the terms of
the MSHCP and this Agreement for the benefit of the Covered
Species and Natural Communities, while allowing well managed
and planned future economic growth;
4.2 To describe remedies and recourse should any Party
fail to perform its obligations, responsibilities and tasks as set forth
in the MSHCP, the Permits and this Agreement; and
4.3 To provide assurances to Permittees and others
participating in the MSHCP that:
A. With respect to Covered Species, compliance with the terms of the MSHCP,
the Permits and this Agreement constitutes compliance with the provisions
of FESA, CESA and the NCCP Act;
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B. For each of the Conservation Areas, Conservation Objectives and required
measures shall be implemented as set forth in Section 4.3 of the MSHCP.
C. New land uses adjacent to or within the MSHCP Conservation Areas shall
implement the Land Use Adjacency Guidelines set forth in Section 4.5 of
the MSHCP, as applicable.
D. The Avoidance, Minimization and Mitigation Measures set forth in Section
4.4 of the MSHCP shall be implemented.
E. Monitoring and management activities will be undertaken for each of the
MSHCP Covered Species. Monitoring and management activities are
described in Section 8 of the MSHCP.
F. Species-specific Conservation Goals and Objectives shall be implemented
for each of the Covered Species in the MSHCP and are set forth in Section
9 of the MSHCP.
G. Natural Communities Conservation Goals and Objectives have been
developed and shall be implemented for each of the Covered Natural
Communities in the MSHCP and are set forth in Section 10 of the MSHCP.
7. MSHCP RESERVE SYSTEM ASSEMBLY
7.1 Overview. As set forth in Section 4 of the MSHCP,
the MSHCP Reserve System will consist of approximately 745,900
acres and will consist of Existing Conservation Lands, lands
conserved through Complementary Conservation and Additional
Conservation Lands. The MSHCP Reserve System is divided into
21 Conservation Areas that provide Core and other Conserved
Habitat for Covered Species, conserve the natural communities
included in the Plan and Essential Ecological Processes essential to
sustain the Core Habitat and secure Biological Corridors and
Linkages between major habitat areas.
7.2 Contribution of Existing Conservation Lands.
As described in Section 4.1 of the MSHCP, the MSHCP Reserve
System will include Existing Conservation Lands. As of 1996,
these lands were comprised of approximately 496,400 acres.
Because of acquisitions, the acreage had increased to 557,100 by
2006. Of this acreage, 491,500 acres (as of 1996), or 529,200 acres
(as of 2006) are federal and state Existing Conservation Lands.
Approximately 900 acres (as of 1996), or 19,100 acres (as of 2006)
are non-profit organization Existing Conservation Lands.
Approximately 4,000 acres (as of 1996) or 8,800 acres (as of 2006)
are Local Permittee Existing Conservation Lands.
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associated with public and private Development projects. The
annual reports will be used to demonstrate that Conservation is
occurring in rough proportionality with Development, reflect that
the MSHCP Reserve System is being assembled as contemplated
in the MSHCP and ensure that Habitat Conservation Goals and
Objectives and required measures are being implemented.
8. MSHCP RESERVE SYSTEM MANAGEMENT REQUIREMENTS
8.1 Overview. The MSHCP Reserve System will be
managed pursuant to Section 8 of the MSHCP. The Plan
establishes RMUs to ensure coordinated management in order to
achieve the Conservation Goals and Objectives. Additionally,
within three (3) years of Permit issuance, the RMUCs and the Land
Manager will develop a Reserve System Management Plan. The
elements of this plan are described in Section 6.2 of the MSHCP
and will include ongoing management measures and Adaptive
Management actions.
8.2 Management Activities. Management activities
pursuant to the MSHCP are set forth in Section 8 of the MSHCP.
As set forth in Sections 6.1.3 and 8.2.2 of the MSHCP, such
activities will be overseen by the RMOC and implemented by the
RMUCs, in coordination with the Land Manager and Monitoring
Program Administrator.
8.3 Management Program. Section 8 of the MSHCP
sets forth the Management Program, allowing flexibility to ensure
protection of species for which current scientific data is currently
lacking. Consistent with an Adaptive Management approach, the
Parties agree that the methods and means of implementing the
Management Program shall be changed as necessary to respond to
species' needs and new scientific data as these items may change
over time.
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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'
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B. The County shall implement the MSHCP through incorporation
of the relevant terms and requirements into its General Plan,
including but not limited to the following:
1. Commitment to ensure compliance with the
Conservation Area requirements and measures set forth
in Section 4.0 of the MSHCP, including but not limited
to the Property Owner Initiated Habitat Evaluation and
Acquisition Negotiation Strategy, if applicable.
2. Imposition of all other terms of the MSHCP, this
Agreement and the Permits including but not limited to
participation in the Joint Project Review Process set forth
in Section 6.6.1.1 of the MSHCP, and compliance with
the applicable Land Use Adjacency Guidelines set forth
in Section 4.5 of the MSHCP.
3. Agreement to enforce all other terms and conditions of
the MSHCP, this Agreement and the Permits.
11.1.3 County Flood Control. County Flood Control shall implement the
MSHCP and this Agreement through execution of this Agreement.
11.1.4 County Parks. County Parks shall implement the MSHCP and this
Agreement through execution of this Agreement.
11.1.5 County Waste. County Waste shall implement the MSHCP and this
Agreement through execution of this Agreement.
11.1.6 CVCC. CVCC shall implement the MSHCP and this Agreement
through approval of a resolution that adopts the MSHCP and establishes
procedures and requirements for the implementation of its terms and
conditions for any Covered Activities. The CVCC shall adopt a
resolution in substantially the same form as the Model Resolution
attached as Exhibit "E."
11.1.7 CVAG. CVAG shall implement the MSHCP and this Agreement
through execution of this Agreement.
11.1.8 CVMC. CVMC shall implement the MSHCP and this Agreement
through execution of this Agreement.
11.1.9 Caltrans. Caltrans shall implement the MSHCP and this Agreement
through execution of this Agreement.
11.1.10 State Parks. State Parks shall implement the MSHCP and this
Agreement through execution of this Agreement.
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
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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
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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
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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
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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 - /