HomeMy WebLinkAbout9/20/2000 - STAFF REPORTS (11) DATE: September 20, 2000
TO: City Council
FROM: Director of Planning and Building
A) MEMORANDUM OF UNDERSTANDING BETWEEN THE CITIES OF CATHEDRAL
CITY,COACHELLA,DESERT HOT SPRINGS, INDIAN WELLS, INDIO,LAQUINTA,
PALM DESERT, PALM SPRINGS, AND RANCHO MIRAGE; THE COUNTY OF
RIVERSIDE,THE COACHELLAVALLEY ASSOCIATION OF GOVERNMENTS;THE
CALIFORNIA DEPARTMENT OF FISH AND GAME;THE U.S.FISH AND WILDLIFE
SERVICE;AND CENTER FOR NATURAL LANDS MANAGEMENT REGARDING
MEASURES TO MINIMIZE AND MITIGATE TAKE OF THE COACH ELLA VALLEY
FRINGE-TOWED LIZARD.
B) ESTABLISHMENT OF A FEE PAYABLE DIRECTLY TO THE CENTER FOR
NATURAL LANDS MANAGEMENT.
RECOMMENDATION
Staff recommend that the City Council adopt a Minute Order approving the attached
Memorandum of Understanding and the attached resolution increasing the mitigation fee for
the take of the Coachella Valley Fringe-Toed Lizard from 100 dollars to 600 dollars per acre.
ANALYSIS
The attached Memorandum of Understanding identifies the agreed upon measures to
minimize and mitigate take of the Coachella Valley Fringe-Toed Lizard. This Memorandum
of Understanding was agreed to among the CVAG jurisdictions and representatives from the
California Department of Fish and Game and the U.S.Fish and Wildlife Service of the CVAG
Executive Committee meeting of August 21,2000. City staff and City Attorney are finalizing
review of language specifically requested by the City of Palm Springs. A revised
Memorandum of Understanding will be provided at the meeting, if necessary.
The Coachella Valley Fringe-Toed Lizard mitigation fee is established for the purpose of
conserving the sand corridors to maintain the integrity of two of the three reserves
established in the Coachella Valley Fringe-Toed Lizard Habitat Conservation Plan,and to
ensure such activities comply with both the federal Endangered Species Act and the
California Endangered Species Act. The current fee is 100 dollars per acre. Upon adoption
of the resolution,and in accordance with the Memorandum of Understanding,the fee will be
600 dollars per acre. The fee area boundry will remain the same as it is today.
/(/as
Director Planning and Building
City Manager
ATTACHMENTS:
1. Memorandum of Understanding
2. Draft Resolution - Fee Schedule-j-o3F, PrOL>l` D5IS
3. Minute Order
rVA
Dian August 23, 2000
MEMORANDUM OF UNDERSTANDING
Between
THE CITIES OF CATHEDRAL CITY, COACHELLA,
DESERT HOT SPRINGS, INDIAN WELLS, INDIO, LA QUINTA,
PALM DESERT, PALM SPRINGS, AND RANCHO MIRAGE;
THE COUNTY OF RIVERSIDE; THE COACHELLA VALLEY
ASSOCIATION OF GOVERNMENTS; THE CALIFORNIA DEPARTMENT OF
FISH AND GAME; THE U.S. FISH AND WILDLIFE SERVICE; AND
CENTER FOR NATURAL LANDS MANAGEMENT
Regarding
- MEASURES TO MINIMIZE AND MITIGATE TAKE OF THE
rF
COACHELLA VALLEY FRINGE-TOED LIZARD
I. PURPOSE:
The Cities of Cathedral City, Coachella, Desert Hot Springs, Indian Wells, Indio, La
Quinta, Palm Desert, Palm Springs, Rancho Mirage, all municipal corporations of the
State of California ("Cities"); the County of Riverside, a political subdivision of the
State of California ("County"); the Coachella Valley Association of Governments
("CVAG"); the California Department of Fish and Game ("CDFG"), a subdivision of the
California Resources Agency; the U. S. Fish and Wildlife Service ("FWS"); and Center
for Natural Lands Management ("CNLM"), collectively referred to as "the Parties",
enter into this Memorandum of Understanding ("MOU") for the purpose of conserving
the sand corridors to maintain the integrity for two of the three reserves established
in the Coachella Valley Fringe-Toed Lizard ("CVFTL") Habitat Conservation Plan (HCP),
and to ensure such activities comply with both the federal Endangered Species Act,
16 U.S.C.§1531 et seq., as amended ("ESA"), and the California Endangered Species
Act, Fish and Game Code §2050 et seq., as amended ("CESA").
ll. AUTHORITY: [optional section; each party to provide statement if it is included]
CDFG enters this MOU under authority of CESA and Fish and Game Code §1802 and
§2081.
FWS enters this MOU under authority of the Endangered Species Act. 16 U.S.C.
1531, et seq., and the Fish and Wildlife Coordination Act, 16 U.S.C. 661-666c, and
Fish and Wildlife Act of 1956, 16 U.S.C. 742(f) et seq.
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III. RECITALS:
A. WHEREAS the Cities, County, CVAG, CDFG, FWS and The Nature
Conservancy (TNC) cooperated in the preparation of the Coachella
Valley Fringe-Toed Lizard Habitat Conservation Plan ("HCP"), which was
implemented through an agreement signed by the Cities, County, FWS,
and CNLM on April 21 , 1986 ("HCP Agreement");
B. WHEREAS the HCP and HCP Agreement provided for the acquisition and
protection of important habitat lands for CVFTL, and provided that
acquisition be funded primarily through a mitigation fee, initially set at
$600 an acre and later dropping to $100 an acre, to be collected from
landowners who obtain grading or building permits from the Cities or
County;
C. — WHEREAS the FWS issued an ESA section 10(a) incidental takepermit
("Permit') to the Cities and County to authorize take of CVFTL resulting
from land development and other activities covered by the HCP;
D. WHEREAS CDFG did not sign the HCP Agreement or authorize incidental
take of CVFTL associated with the HCP because a permitting process
had not been established under CESA at the time the HCP was
developed, but CDFG nonetheless participated in implementation of the
HCP;
E. WHEREAS the California Department of Fish and Game and the U. S.
Fish and Wildlife Service have previously issued letters in regard to
certain projects expressing concern relative to Fringe-toed Lizard habitat
issues Concurrent with the execution of the Memorandum of
Understanding, DFG shall provide letters to CVAG jurisdictions that no
additional permits are required for take of FTL.
F. WHEREAS the HCP and IA were amended upon DATE by which the
CNLM assumed the obligations of management from TNC.
G. WHEREAS the HCP and the IA were amended upon September 1, 1998,
to permit the use of mitigation fees and other available funds to acquire
high priority sand source and corridor lands within the blowsand
ecosystem outside the boundaries of the Coachella Valley Preserve and
the Willow Hole/Edom Hill Reserve necessary to maintain suitable habitat
for the Coachella Valley Fringe-toed lizard.
H. WHEREAS the Parties have concluded that the HCP may not protect the
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supply of sand through sand source and transport areas that are
essential to maintain habitat for CVFTL on two of the three preserves
established by the HCP, and may not provide sufficient funding for
acquisitions to protect these sand source and transport areas;
I. WHEREAS the Cities, County and CVAG have been working with the
FWS and CDFG to develop a new Multiple Species Habitat Conservation
Plan ("MSHCP") for the Coachella Valley pursuant to ESA and the Natural
Community Conservation Planning Act, Fish and Game §2800 at seq.
("NCCP");
J. WHEREAS the Parties agree that the CVFTL can best be protected by
inclusion of the species in the MSHCP, but desire that certain measures
be implemented on an interim basis through this MOU to protect the
CVFTL until the MSHCP is in place; and
K. _ WHEREAS the Parties intend this MOU to supplement and not supersede
or amend the HCP and HCP Agreement.
IV. THEREFORE, THE PARTIES AGREE TO THE FOLLOWING:
A. MUTUAL OBLIGATIONS OF ALL THE PARTIES:
1 . The parties agree that during the term of this MOU, the greatest
priority for land acquisition shall be acquisition of parcels in
Section 8, Township 4S, Range 6E; land along Ramon Road and
land along Palm Drive that falls within the sand source and
transport areas identified in the Coachella Valley Mountains
Conservancy Memo dated June 29, 2000 (Exhibit A). Funds
previously collected under the HCP or provided pursuant to the
terms of this MOU may be used to purchase lands within these
sand source and transport areas; land acquisitions in sand source
and transport areas shall otherwise be made using the process
described in the HCP and HCP Agreement.
2. The Cities, County, CVAG, FWS and CDFG shall diligently work
to complete an MSHCP that provides for conservation of the
CVFTL and other species. To that end, the Cities, County ,
CVAG, FWS and CDFG commit to present to their respective
decision bodies the proposed MSHCP in a form sufficient for
adoption by September 1, 2002. CVAG, CDFG and FWS
management shall meet every three months to assess the
progress of MSHCP planning and address problems as they arise.
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B. OBLIGATIONS OF THE CITIES, COUNTY AND CVAG:
1. During the term of this MOU, the Cities and County shall
contribute a total of $2 million for land acquisitions within sand
source and transport areas, as prioritized in Section W.A.1 of this
MOU. The $2 million may include any mitigation fees that the
Cities and County generate during this period pursuant to the
terms of the HCP. The CVAG jurisdiction signatories agree to
reinstate the $600 per disturbed acre mitigation fee. It is agreed
that to the extent the mitigation fees are insufficient to satisfy the
$2 million contribution, the Cities and County may make up any
shortfall through grants or donations they have received for this
purpose, but in no event shall the cities or county be required to
fund any portion of the contribution from their general funds. It
is agreed that to the extent the mitigation fees are insufficient to
satisfy the $2 million local contribution within the time period of
this MOU, that the shortfall shall be remedied through loans or
other sources. If money is borrowed for the shortfall, the
mitigation fee will continue to be collected until such time as the
loans made whole including any interest accrued. It is further
specifically understood that under no circumstances does this
MOU obligate the General fund of any signatory jurisdiction.
2. The County immediately shall adopt as development guidelines
the standards in Exhibit B for land use development occurring
within sand source and transport areas in Section 8, Township
4S, Range 6E [and along Ramon Road']. The County shall also
within 90 days of the effective date of this MOU, consistent with
requirements of law, present for consideration adoption of land
use ordinances generally consistent with Exhibit B to protect
these areas. The County shall obtain the written concurrence of
FWS and CDFG for any changes in the development standards set
forth in Exhibit B during its review and adoption of land use
ordinances for these areas.
3. The County and CVAG, together with Caltrans and Federal
Highways Administration, shall mitigate all direct and indirect
impacts on CVFTL from widening of Palm Drive through the
acquisition program described in this MOU, except that
1 Refer to County Submittal to the Board of Supervisors dated August 14,2000(Attached as Exhibit B).
Page 4
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acquisitions for direct impacts of the widening project may not be
funded with money provided by CDFG or FWS or FTL mitigation
fees from any other project.
4. The County shall subject the Palm Drive interchange project to the
normal environmental review process.
C. OBLIGATIONS OF FWS:
1 . During the term of this MOU, the FWS shall contribute $1 million
for land acquisitions within sand source and transport areas and
within the CVFTL preserves, as prioritized in Section IV.A1 of this
MOU, provided such funds are appropriated.
2. FWS agrees it will not suspend or revoke the Permit during the
term of the MOU so long as the Parties comply with terms of the
Permit, HCP, HCP Agreement and this MOU. All other tegns of
the permit, HCP and HCP Agreements shall remain in effect.
D. OBLIGATIONS OF CDFG:
1 . During the term of this MOU, CDFG shall contribute $1 million for
land acquisitions within sand source and transport areas and
within the CVFTL preserves, as prioritized in Section IV.A.1 of
this MOU, provided such funds are appropriated.
2. Within one week of execution of this MOU, CDFG will make a
determination pursuant to Section 2080.1 of the Fish and Game
Code as to whether the FWS Permit for CVFTL in combination
with the mitigation provided in this MOU is consistent with CESA.
The determination may be conditioned on compliance by the
Parties with the terms of this MOU.
E. OBLIGATIONS OF CNLM:
1 . It is anticipated that CNLM shall hold funds provided under this
MOU and use those funds to acquire land in the sand source and
transport areas, as described in Section IV.A.1 of this MOU.
V. TERM OF THE MOU
This MOU shall take effect on the date last signed and shall expire on September 1,
2002 or upon issuance by FWS and CDFG of take authorizations for the MSHCP,
whichever first occurs.
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VI. CONDITIONS PRECEDENT
The following actions are conditions precedent to this MOU and to performance by
the Parties of other obligations under this MOU:
A. CDFG's execution of a determination pursuant to Section 2080.1 of the
Fish and Game Code finding that the Permit in combination with the
mitigation provided in this MOU is consistent with CESA, and
B. The County's adoption of development guidelines and land use
ordinances as described in Section IV.B.2 of this MOU.
VII. AMENDMENT
This MOU may be amended with the written consent of each of the Parties to the
MOU, except that the development standards in Exhibit B may be changed durir, g the
County's adoption of land use ordinances pursuant to Section IV.B.2 of this MOU
provided the FWS and CDFG both provide their written consent to those changes.
Vill. THE HCP AND HCP AGREEMENT
The Parties intend this MOU to supplement provisions in the HCP and HCP
Agreement, as amended, and this MOU does not amend or supersede provisions in
the HCP and HCP Agreement. The Parties who signed the HCP Agreement
specifically affirm that the HCP and HCP Agreement, as amended, shall remain in full
force and effect.
IX. ELECTED OFFICIALS NOT TO BENEFIT
No member of or delegate to Congress shall be entitled to any share or part of this
MOU, or to any benefit that may arise from it.
X. AVAILABILITY OF FUNDS
Implementation of this MOU by FWS is subject to the requirements of the
Antideficiency Act and the availability of appropriated funds. Nothing in this MOU
will be construed by the Parties to require the obligation, appropriation, or expenditure
of any money from the U. S. Treasury. The parties acknowledge that FWS will not
be required under this MOU to expend any appropriated funds unless and until an
authorized official of the FWS affirmatively acts to commit to such expenditures as
evidenced in writing. Implementation of this MOU by CDFG is subject to the
availability of appropriated funds and a commitment by an authorized CDFG official
to expenditure of such appropriated funds.
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MEMORANDUM
TO: STEVE NAGLE,Director of Environmental Resources, CVAG
FROM KATHY IE SON,RUTAN&TUCKER, LLP, CITY ATTORNEYS FOR CITY
OF LA QUINTA AND CITY OF PALM SPRINGS
RE. AUGUST 25,2000 MEMORANDUM TO TECHNICAL ADVISORY
COMMITTEE AND REVISED MOU REGARDING FRINGE-TOED LIZARD
PERMIT
DATE: SEPTEMBBR 6,2000
The City of La Quinta provided me with a copy of your Memorandum dared August 25,
2000, to The Technical Advisory Committee regarding the Fringe-Toed Lizard MOU Your
Memorandum had attached to it a revised version of the MOU. With regard To your
Memorandum and the revised MOU, please note the following:
1. I do not believe that your Memorandum accurately reflects the status of the
comments and concerns of the interested cities, at least not those of the Cities of Palm Springs
and La Quinta As stated by Mr Weiss,La Quima's Assistant City Manager, at the August 23,
2000 meeting at your office,this MOU, as drafted, represents a significant change in policy
regarding The funding of Fringe-Toed Lizard mitigation. The proposed MOU, as drafted,no
longer reflects the approach of"development paying its own way" in mitigating for this species
By stating that any shortfall in the funding generated by the fees"shall" be made up by the Cities
and the County, the MOU imposes an affirmative obligation on The part of the Cities and the
County To come up with funding other than the referenced fees. Given that The anticipated fees
are likely to be far less than$2,000,000, how the shortfall will be made up is a legitimate area of
concern to the Cities of Palm Springs and La Quima and possibly other cities and the County.
You will recall when the "shall" language was proposed during the meeting on August 23`41 1
specifically asserted Thar this would be a concern to the Cities of Palm Springs and La Quinta
While we did not continue to belabor the point during the conference call,this was not resolved
during the meeting and still have not been resolved.
2 It was my understanding That the details regarding how the shortfall would be
handled were to be addressed at this juncture. The revised MOU does not include any such
provisions,beyond an agreement that the$600 per acre fee will be reinstated. In this regard,I
believe it is necessary to do the following:
(a) The commitment to use TUMF to cover the shortfall needs to be included
in the agreement or agreements to be presented to the individual cities for consideration by their
city councils. Our preference would be that this is handled in a single document. Should it be
necessary that it be accomplished in a separate agreement,then it must be clear that the MOU
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will not be effective until and unless the separate agreement is also in place. The agreement
would need to recognize that the sale source of the repayment is the fees collected from
developers,together with any grants or gifts received for this purpose.
(b) We believe it is necessary for CVAG Legal Counsel, Toni Fggebrawen, to
issue legal opinion indicating that it would be lawful to utilize the TIJMF fees in this manner-
(c) The specifics of any loan repayment needs to be clarified. Specifically, it
needs To be clear that the source of repayment of any loan is the fees collected alone, together
with any grants or gifts received for this express purpose. It is my assumption That the fees
collected in year 2003 and following will be used to repay any loan, including interest. Have The
wildlife agencies agreed that the fees collected in 2003 and fallowing can be used to repay the
loan? In other words, have they agreed That beginning in September 1, 2000, 100%of the fees
collected to mitigate Fringe-Toed Lizard impacts will be used to repay TUMF, and that those
fees will not be paid to CNLM until the loan is repaid? I believe there is confusion on This point
which needs to be clarified before the issue can be presented To the various decisionmakers.
(d) If the loan is to be from another source(a.S., City of palm Desert),this
needs to be documented now, and the appropriate legal opinions need To be obtained aT this
juncture
3. On page 2,Recitals F and G,the term "IA' is used. You mean HCP Agreement'?
4. On Page 3, Section IV.A2., line 3, delete the space after County before the
comma
S. On page 4, Section IV$ 1,it would seem That this is The best place to clarify that
100%of the fees collected after September 1, 2002, shall be used to repay any loan, including
interest. This needs to be addressed in the agreement with CDFG and FWS
6_ On page 7, Section XV., line 1,the"p" in "parties" should be capitalized
7. On the signature blocks, doesn't the agreement also have to be approved by legal
counsel?
8. Has anyone researched whether the resolutions to set the fee back at the$600 per
acre level require any of the regular developer impact fee documentation,hearings, and notices?
MINUTE ORDER NO.
ADOPTING MEMORANDUM OF UNDERSTANDING BETWEEN
THE CITIES OF CATHEDRAL CITY,COACHELLA,DESERT HOT
SPRINGS, INDIAN WELLS, INDIO, LAQUINTA, PALM DESERT,
PALM SPRINGS, AND RANCHO MIRAGE; THE COUNTY OF
RIVERSIDE; THE COACHELLA VALLEY ASSOCIATION OF
GOVERNMENTS;THE CALIFORNIA DEPARTMENT OF FISH AND
GAME;THE U.S. FISH AND WILDLIFE SERVICE;AND CENTER
FOR NATURAL LANDS MANAGEMENT; REGARDING,
MEASURES TO MINIMIZE AND MITIGATE TAKE OF THE
COACHELLA VALLEY FRINGE-TOED LIZARD.
- - - - - - - - - - - - -
I HEREBY CERTIFY that this Minute Order, adopting a Memorandum of Understanding
between the Cities of Cathedral City,Coachella,Desert Hot Springs, Indian Wells, Indio, La
Quinta, Palm Desert, Palm Springs, and Rancho Mirage, the County of Riverside; the
Coachella Valley Association of Governments;the California Department of Fish and Game;
the U.S. Fish and Wildlife Service; and Center for Natural Lands Management; regarding,
measures to minimize and mitigate take of the Coachella Valley Fringe-Toed Lizard,was
adopted bythe City Council of the City of Palm Springs,California,in a meeting thereof held
on the 20' day of September 2000.
PATRICIA A. SANDERS
City Clerk
11946
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM
SPRINGS,CALIFORNIA,ESTABLISHINGA$600/ACRE FRINGE-
TOED LIZARD MITIGATION FEE PAYABLE TO THE CENTER
FOR NATURAL LANDS MANAGEMENT FOR DEVELOPMENT
WITHIN HISTORICAL HABITAT AS IDENTIFIED IN THE
COACHELLA VALLEY FRINGE-TOED LIZARD HABITAT
CONSERVATION PLAN (HCP).
WHEREAS,the Cities of the Coachella Valley,County,CVAG,CDFG, FWS and the Nature
Conservancy (TNC) cooperated in the preparation of the Coachella Valley Fringe-Toed
Lizard Habitat Conservation Plan (HCP), which was implemented through an agreement
signed by the Cities,County, FWS,and Centerfor Natural Lands Management on April21,
1986 (HCP Agreement);
WHEREAS, the HCP and HCP Agreement provided for the acquisition and protection of
important habitat lands for CVFTL,and provided that acquisition be funded primarily through
a mitigation fee, initially set at $600 an acre and later dropped to $100 an acre, to be
collected from landowners who obtain grading or building permits from the Cities or County;
WHEREAS, substantial evidence exists that the current $100/acre fee is insufficient to
acquire all properties necessary to insure viable preserves capable of perpetuating the
species;
THEREFORE, Be It Resolved by the City Council of the City of Palm Springs that the
Fringe-Toed Lizard Mitigation fee imposed through the HCP Agreement shall be raised to
$600/acre immediately upon adoption of this Resolution. Fees shall be paid directly to
Center for Natural Lands Management and a receipt provided to City prior to issuance of
building and/or grading permits.
Adopted this day of September, 2000.
AYES:
NOES:
ABSENT:
ATTEST: CITY OF PALM SPRINGS, CALIFORNIA
By:
City Clerk City Manager
REVIEWED AND APPROVED AS TO FORM
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