HomeMy WebLinkAbout10/4/2000 - STAFF REPORTS (22) 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 COACHELLAVALLEY
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 currentfee is 100 dollars peracre. 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.
Director Planning and Building
City Manager
ATTACHMENTS:
1. Memorandum of Understanding
2. Draft Resolution - Fee Schedule--jo-�5F,, pfoL>I' 0E
3. Minute Order
�A
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 1 .
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 at seq., as amended ("CESA").
II. 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.
Page 1
26A 2
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 take permit
("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
Page 2
3h .3
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 et 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.
Page 3
10,4 �
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 IV.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 $60O 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
I Refer to County Submittal to the Board of Supervisors dated August 14,2000(Attached as Exhibit B).
Page 4
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 teyns 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.
Page 5
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 during 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.
Page 6
3.47
DATE: October 4, 2000
TO: City Council
FROM: Director of Planning and Building
SUPPLEMENTAL STAFF REPORT- COACHELLA VALLEY FRINGE-TOED LIZARD
MEMORANDUM OF UNDERSTANDING (MOU).
Subsequent to the September 20, 2000 City Council meeting, a revised MOU has been
prepared. Additional background material is attached. Staff is reviewing this material and will
provide the City Council a recommendation at the meeting.
Recent changes have been noted in the attached CVAG Executive Committee and revised Draft
MOU.
Director of PI ing and Building
City Manager �/ f
I ,
ATTACHMENTS:
1. CVAG Staff Report and Revised MOU - September 14, 2000
2. Fringe-Toed Lizard MOU letter
3. CVAG TUMF update, September 21, 2000
COACHELLA VALLEY ASSOCIATION of GOVERNMENTS
September 14, 2000
TO: EXECUTIVE COMMITTEE /
FROM: Steve Nagle, Director of Environmental Resources/�; _
RE: UPDATE AND FOLLOW UP ON THE MOU BETWEEN CVAG
JURISDICTIONS AND WILDLIFE AGENCIES RELATED TO INTERIM
SOLUTION FOR FRINGE-TOED LIZARD PERMIT
A revised draft of the MOU was forwarded to TAC members for the September 8' meeting for
consideration in their respective jurisdictions. The MOU contained the concepts and language
agreed to at the August 21" Executive Committee meeting and the follow up meeting with
representatives from the California Department of Fish and Game and the U.S. Fish and Wildlife
Service.
In a memorandum to CVAG dated September 6`s, the attorney for the City of La Quinta raised some
questions concerning the MOU. (Please see the attached response and memo). One major item in
the memo included a request for the CVAG attorney to issue a legal opinion on the concept of using
TUMF as a loan source in the event that there is a shortfall in FTL mitigation fees. The MOU does
clearly state that if money is borrowed for the shortfall, the mitigation fee will continue to be collected
until such time as the loans are made whole. The CVAG attorney has opined that there is a clear
nexus to transportation development and will provide the opinion under separate cover.
The attached MOU includes language which several cities requested that actually references the
reinstatement of the$600 per disturbed acre mitigation fee. Please note on Page 4 Section IV under
B.1. line 6 that language has been incorporated to read: "The CVAG jurisdiction signatories agree
to reinstate the $600 per disturbed acre mitigation fee".
As you recall, the Executive Committee voted to approve the MOU at their special meeting of
August 21'based on the subsequent inclusion of these suggested amendments and directed staff to
forward the MOU to each individual jurisdiction for consideration and approval. The attached
revised MOU is brought to your attention for final approval and to bring closure to this item. The
changes included are not significant and do not change the meaning nor purpose of the MOU. Several
cities have already adopted the MOU. It is recommended that the remaining jurisdictions adopt the
MOU at their earliest convenience and concurrently approve by Resolution or Ordinance the $600
per acre Fringe-toed lizard mitigation fee. The City Council for the City of Palm Desert passed a
Resolution on August 24s'. A copy of the Resolution is attached for your convenience.
Please let us know if you would like CVAG staff or others to attend your city council meetings or
study sessions to answer any questions you may have.
RECOMMENDED MOTION:
That the Executive Committee give final approval to the MOU and taker action at their
respective jurisdictions to adopt the MOU and to implement by concurrent Resolution or
Ordinance a reinstatement of the $600 per disturbed acre Fringe-toed lizard mitigation fee.
Draft September 14, 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
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").
IL 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, etseq., 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.
Page 1
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 take permit
("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 four take of FTL.
F. WHEREAS the HCP and the 4mn ementinc�A_greeme ('9A") 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.
Page 2
H. WHEREAS the Parties have concluded that the HCP may not protect the
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 et 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
Page 3
progress of MSHCP planning and address problems as they arise.
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 VThe CVAG jurisdiction signatories a ree to
einstate 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 thrmigb loans or
other s mes.. I o y is borrowed for the shortfall, the
mitigation fee will continue to ollected until such time as the
loans are made whole. 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.' nThe 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 E�Libit B).
Page 4
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 state or federal 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 terms 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.
Page 5
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 during 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.
VIII. 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.
Page 6
XI. DUPLICATE ORIGINALS
This MOU may be executed in any number of duplicate originals. A complete original
of this MOU shall be maintained in the official records of each of the Parties.
XII. THIRD PARTY BENEFICIARIES
Without limiting the applicability of the rights granted to the public pursuant to the
provisions of 16 U.S.C. section 1540(g) and under California law, this MOU 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 MOU to maintain
a suit for personal injuries or property damages pursuant to the provisions of this
MOU. The duties, obligations and responsibilities of the Parties to this MOU with
respect to third Parties shall remain as imposed under existing Federal or California
law.
XIII. RELATIONSHIP TO ESA, CESA AND OTHER AUTHORITIES
The terms of this MOU shall be governed by and construed in accordance with the
ESA, CESA, and other applicable laws. In particular, nothing in this MOU is intended
to limit the authority of FWS to seek penalties or otherwise fulfill its responsibilities
under the ESA, or to limit the authority of CDFG to seek penalties or otherwise fulfill
its responsibilities under CESA. Nothing in this MOU is intended to limit or diminish
the legal obligations and responsibilities of FWS as an agency of the Federal
government or of CDFG as an agency of the State of California.
XIV. EXHIBITS
The following exhibit is incorporated into this MOU as through set forth in full.
Exhibit A Coachella Valley Mountains Conservancy Memo, June 29, 2000
Exhibit B Development Standards for Section 8, township 4S, Range 6E
XV. CONCURRENCE
The Parties agree to the terms of this MOU and will each work diligently to
ensure its successful implementation, as evidenced by signatures of their respective
authorized representatives below.
Page 7
DATED: CITY OF CATHEDRAL CITY
ATTEST:
By
DATED: CITY OF COACHELLA
ATTEST:
By
DATED: CITY OF DESERT HOT SPRINGS
ATTEST:
By
DATED: CITY OF INDIAN WELLS
ATTEST:
By
DATED: CITY OF INDIO
ATTEST:
By
DATED: CITY OF LA QUINTA
ATTEST:
By
Page 8
DATED: CITY OF PALM DESERT
ATTEST:
By
DATED: CITY OF PALM SPRINGS
ATTEST:
By
DATED: CITY OF RANCHO MIRAGE
ATTEST:
By
DATED: COACHELLA VALLEY ASSOCIATION OF
GOVERNMENTS
ATTEST:
By
Page 9
DATED: COUNTY OF RIVERSIDE
ATTEST:
By
DATED: CALIFORNIA DEPARTMENT OF FISH AND
GAME
ATTEST:
By
DATED: U. S. FISH AND WILDLIFE SERVICE
ATTEST:
By
DATED: CENTER FOR NATURAL LANDS
MANAGEMENT
ATTEST:
By
Page 10
08/10400 ,08:27
PF k N0 529 705 6251
Jun. 23 P2
Sri w ro3,-rates �� �"
EXHIBIT A
Priority Acquisitions in the Sartd Source Areas,
and Estimated Costs and ,funding Sogre-es
CoachclL< Y9>k=l'z'rczrvc[['t:ouaand Baim3
Zhc ercz4 ofbieg'st conCcrn arc Scctioa 8 a n9Re�onRoad
Section S has been previously subdivided into lots tauging in sip from nPP7oxitttat4y 25
acrest:,l0 acres. A rtumbnr of Sin&eF-'Zm-[y bavc bccz,o�d
in Sccdua 8 4ours ViaLas palmca and Vista Del Sol over Theycars•It is by
kal far froth:owcx^s�eousence a fgncx yr windbreak dsi6�to S:np the movement ofs3nd
onto tie gtoperty, The v+ildlifr.rgcncies exe cz"ccrned tl r a c�nuatian ofthis g;tcectt
of dcvelapm cspxially along Yin Las Palms could disragc ft<e.sand transpattgre�ss
and impact the lnno tCrat viabi li ty of she C VFTL Preserve.Lz the LAZZ two years,two to
three pa=its have brcnissued or applied for in ttus t=for SFRs.
Rzmon Road is t'ac only through zvad la tFr sand satxctltraasp��a•atid�a
sign ficat co a wr he�re�v I-10 and Wash cgwa 5tre emd Thous2n3'BaTme
Y.oa3/DUIanRoa3TfieportionofR�oaRrsdwas:of'eheaandsour�n?paztatrzls
alrezdy deve npcd A ouDzImuatiort of that pattern skzag R==Road k t116 send
soume%ansFart arc°cmuld diaupt the <+nR ttanspo.-t ptrKcss and tatrztin the}ong-m;tn
visbitiry of the CYFIL przsarva, ?hc eirrran:zoning is pr�mTn�tiy7riultiplo Fs�"z`Fy
_ P,�:d�dzl,withCormnucialazto�it�rsecaooafl�7anRoz�andtkcPotcntial
exN.115ion of Chase Sehcol Raab There 1'ss br_n no recent
Rsm�s Road,t nd th-short acim thezzt is jVobabW=tsigc:ficaat?-he clwelopme
cconocty inch^�a11ey has,hawcrcr,h�s-d tm in Tesr year,arul ^f
along RaraoaRaad arc for safe.Tbh raises conccrn5 tbsr dew_logmew pre3sares andland
values znay tis=sign£eantly setae near futurz,mlkirig it important tgParsue scguislfwm
now.
In Secuw 80 ffie z are I20 c2c=parcels in fa^said so ur n s�Oti a* {ice:,sorth f
the powcrTi=corridor),ranging in exe froth 0,03 rues m 19.42 across. Of these 120
vacant paro4s,28 ere smaller fl=Z.0 acres Jn size;45 arc be7m=a 2.0 and 3.99 s
si=;t1 arc bctw--=4.0 and 5,99 io s;=;and 6 axe pv=cr tbaa 9.0 acres in size-Ito
armched trap shows ah=a ptop=T!cs.Dried an 3aput frorru Tjsr WS sad CDFG, 11
parcels is 5ption 8 vi-cm it 4udcd.in th-e giro..apprcltal.That errpralsai,afmr a lengthy
revicewprectss by tc-WR&ifo Cnasvrvaticn$oard(WCB)and tip gepertusc'm of
CTaterzl S-ry= PCTS),is now being updated to rofleat recent 00 a0 a local=in the
area Tftc trpdatr wtM be camplcted in August,andvriU thend-
tmrgo ravicW by WCB zz3
D GS.After that review is carnrplem4 WCB can wAz offem to the}zada..raz,t t
pw-ehsso at toe app:rtsed vzlna.Butd an toga from IJSFW5 s-.d CDF•Ci,50 pr=Bn is
Section 8 sm sWed.ta be appraiscd in the st+azd rsgrzisat,due to be.eaatpleh d it
August Befctm this rzp;xetsal is began,WC$is saQmg a Ictr'r to all the landownrs to
dete=31=who warns to�isrl
b=m���tt cry heir propc zppmiced.Tttase vhio don%-wvn*tbc:inclad�l
in the epp=Lszl.This app a wM also mxd to be=v+ erred by WC6 sari DGS.lII zZ
tt =Nhood,tncn,WCB will not In-zble to send oat offer to Purchase-letters ltnlil
n7- , cn•cT on, 6 5rb 5 -759-9T6:x�d IIIQ S21Sdi4d 731 9
22 �3 e9:07Pr1 P3
,
September. The ou}tr entities with acquisition funds,the CoftchclL.VEhey tvlO=mh1s
Cowcf-mncy, Cenur fnrNaw al Lauds M;-rLa-,,cncn%and F6cads afthe Desert
Mouraaj a,will utilize &e samc.appraissh-and must al-io vah until they h. ve bam
updated bcfare maldn$offers to puxchse, f It of thcse errliri�and WCB will coord-i' 5tc
closely on winch verity buys which P=C!Is.
Note:it is asst nedthnt the 61 parcels in Section 8 that USIFWS and CDFCT ham-
prrnviously indite:*d erg chcir pdo,rip.cs for i1 2u-sion in the appu�isals rzprc5,-m thc
agencios priorit2cs far acquiaition.
Along pnDnon Knzd, them are 29 parcels 2h.r are a priority to acquit,-in she za-Ud
soutcclttat>.sport z—= In Mau inst_e Cs,parcels along Ramon Road sr:pan of larger,
holdings by the same owner.it may oftcn he ae-ces ;to ptucbsa"pore fnsa justthc
parcels along Ramon Rozd IZeld by a gluon e mar. the parnxls s10�RAzaon Road s cage
in size]a-om 10 p cte to 53.16 r crrs.
Table 1 id ntifics toz 58 rands in Sean 8 aitd all }ue parcels with fr tsrr'41mag
R=oaRGt24 Wl:-.se the same owlur haS o.F'_er praels,these ate shown SVMtvby.
R'I17aw Vole Pt�scrr .
She Mari=}aces is Palm D 2�c.If dev�rn cnt is goh1 f,TO eccux id*IS 7-majit VIM Esc
along palm Drive baaaexse of access r=d froatzge one.sigaifi-act roa3 To eo=ol F`r.=
D iw beta n VamerRoad acd apptnx1='-1y 191�--A.veuttc js to contuvl d�at
t7tcsr� ForsheptnpaS::4RCPzmeadin=ptdod,t1i:eightpvte alongpalmArivcin
ICES area era the prioarf for acquWdom Table 2;dL-T f cs these parte15.
The isstwin this area is tn:lark ofa fcutding source at ptesmt-The 1998 Amwa nmt to
the CVF17-HCP pcmoits"the use of mi ignion foes and other A'C'7 plc fands to ecgQ M
high priority sand soufce mti corridor lards wi*.in the blowsand ccosysT=otssid-7!bzt
bamdsrics of th_Coachelis Valley Pram std Willow Hoic r d�iM Rc5crvv
n---twmy so=in a stricablc habitat for LLcFI'L."It j'�t Fore,rota �r3�that
gucsasrct to Section RZ.of fnc Aas�sclmcnt, tha Soria-andth-CQunyprovidc wdztcn
gpgrolal for tho use oFstnligation fee ftmds to acquits lands along P4 a Drrm.To
optimize the rasa of farads at this brae,canld=dm should be giv,.tt to pursuing opdow
to purch=�c thasc gatccls to allow mom ri=to find funds fns acflurssitioa.It is also
trromntcrid=d ii=My ao;vis'ttibn effOM b-.coo * < with a patemiel ELM taitd
euhangz tbat no"Ttialso lead to tlzt ac, n sition ofg�els elo139Palm Drive.
Sum=ry,OFA 4visvionFrforInes-
Asdylin-C.din Tables Iand2,zlaetotalo`atitil9zionpdoriticszcdM5� Cdcostis:
S is i?9,950 for 275.76 z=cd in S ection 8
52261,000.ior361�1 asresslrtng,Ramaa�xid
S1,539 050 far341,78 zccasaloagPaL-nD iva
TR - 'T t •'i w n--A ,r(
FF `i - cv i�-tptt�1[t-S crns�vv,�' Ps-e��. ram. 3 7ss Eli run, � 2e20 es;e?rn Qa
55,279,000 for 9 is.75 acres
?Zocc znat funds c,�ren6y avaiLablz(see below)arc suf�ccil t to aCgttira all ffiis land
Ttr {allowingis,ad�litiQaa3acr ochatrtightzmcZtohcpurchasedn the-short tcmi
bccatse, v h�7e fhe parcrls ate not oa 22maa Roar?a�not hi ,hpdaritics in and of
thcmcelves,tYecyaeooncdbytheavm--TsoflandouRimosxRA:dandmightn 3mbe
bought in pabkagc drsLs Wlthtb.ose avmers.itrslgl%%Lawe-vfr,be passible' pttrcl,sc
mhLcs parozis in subscqucrrt ph,-s=rather than daring the tcrm of thz proposes
amcrndmcntto*c IIC,P.
S3,671,900 for 966.73 acres
This,in ronj ttacaan�2th the piiari#y eegnisio3s d&a:d rbove, vrsttld eRd t$-
c¢ncntly uvaUable f- tds byS'2,725,900. Girctt fhe lin of acltFtiioTsal potczuial fatsd;ag
so�r�s,itisnot ancriYabletaattl,ct: aeai;iazdfur-&could b�oluwin wiOx the
ntaycar.
trusmttF4n& Avail>ble for Aa P-Isl Lori
S1.5 rRUoa ScCd=6 Species Act
$0.371 miluon WCB matrhiMS fiord for shove
S L5 mlliian Addiaaoal WC3 matclling£cads
S2.0 h=Won CVFI-L tnitlgatian fees
S0,5 nillia't gm=toC 24C
5025 r„ 5cm CVMC grant to CNLM
50.1 miles NF'1Ir'grant to FORM
S6225 mWon
Addition:-I Potc�ial F`t?thd�
C m tRcgx =foes
PropaaiQaa 12
Proposid=15
a'cnj,V=-nvparrioa 12 fmsds
A tdA3±L'arg TEA grans(-wm&ht)
'Fax Q�x Pzvgrca.+. -
gj-1`�i labi u�iiszs -
CVwD- �Flood Co:coi Pzc+Jce:M�•-won
cr 7--,-2 ' (1Trr eVTH4-H
EXHIBIT B
SUBNOMAU TO THE BOARD OF SUPERVISO#ZS
COUNTY OF RtVERSIDr,S7ATE pF CALIFORF!lA ( i
FROM. Transpatatlon and Land y SUE3iy1CTTAt HATE; August ic, 20100 v
ftanagcmentAgency
SUBJECT: Coachella Valley Fn x7e toed Lizard Habitat Conservation plan
RECOMMENDF-D MOTION: Thai She Board approve -Implementafpn of the attached Interim Guldefines for
properties located within Section Brfhouzand Palms Ares
BACKGFOUND:On August 1,the Board authorized staff to cmndnue negotiations w th the United Stattaes Fish
and Wildlife Servira(Service) and the California Oepz4ent of Fish end Game (Department) wnoeming sand
source issues'and the Coachella Valley Frfngatoed Lizard Habitat Conservation Plan and to devefop a dra`
overlay Zone for Section 8 located in the Thousand PalrM area.
Ater extensive n_goli- ons with the Service and the Department on August 1 and 2,1agre-ement has been
reached on the proposed dcvelopri ent standards setforth in the attached documen'which Will be incorpoW,-•_8
intoihe ovariayzone currently being deveiopsd. Addit or,fally,iris Intended t iat these developmentstandards I*
impfementrd on a voluntary basis bs interim guldelinW untl such time,as the Board consider approval of an
amendment to O dinance No. S4 incorporatlng an overay zone for the Simon Srfhousand Patens area.
t
If the ACO'-,!Thousand Palms proposed Flood Control pra,'a~t does not go fwwaal, the Serv'lce has requested
th2i these development standards also be applied to the`Ramon Road Area"as dapi on the attached mep-
The County has not nt this point agieed to extend the lnterim Guidelines W cover the"Ramon Road Area"but rr;,y
do so aPLx NrtrIer discusslon with CVYJD corxanlfng the knpact of the proposed Thousand Palms Flood Control
Project. The developmentstandards Eire intended tozp'ply
tosingfefamilyresidentialfat;!' Zoningin the"Raman
Road Area"may allow other us►s'that would require drierent standards, -
• a
Kichard Lashbm
Attachment i LMA Director
FINANCIAL DATA:
CURMIT YEAR COST 5 : ANNUAL COST $
NET COUNTY COST 5 IN CURR°W YEAR 130DGE fr. YE SI NO!
> > BUDGET ADJUSTh1F-NT::YES( NO! FORM
o c SOURCE OF FUNDS:
a a -
O ❑
C.P-0.IiBgOMMENDATION: '
C du
v count}[Exetutfye Officer signature
a ❑ . . _
C '
a
a
c
r �
4 Prev.Agn.ref. DLTt. 4 AGENDA NO.
r
Dz-aft Development Standards - Thousand Palms Area
Secdozi 8) Township 4S Range 6E
}i •
Objective- Assam the continued movement of sauc.by both wat.5r and wind con-:eyanr=through
the IhousandPalms•5and Source Area.`-
1. Development vel e
Maximum srzc of the development envelops permitted:
Lot Size
2 aci es or less •2—4 Acres Over 4Acrrs
Ms =um Size of 8,0001sgw=feet S;a00 square feet 12,"0 squaw feet
DcveIopment pliu 5%ofthe lot plus 2%-40fthe Iot .
velope area for each acre or area for each awe or
portion thereof over portion faereof over
2 acres 4 yes
Withiu,the development envelope:
• The shape and`.orientadon of the d.-vclopment envelope shall hc'designelto
minunizr the impact to sand movement. A compact shape and orietrarioa that
produces the minimum wind shadsow wEl be req ed_
The height of any snmcture shall tie limited to a maximum of 2Y feet above
existing grdej or i8 feet above fit`}ish grade whichever is less.
• Fenciz�>land sczpin„sad aoczssbry stractttres shall.be perrnincd within the
development ertvelape and shall otherwise be consistent with wdstin;land use
and building;cattlatioris.
Outside ofth-development'envelopet ;
• All buildings;and accessory structures shall not bepenutted.
Fencing,--4 as a split rail fence,shall be permitted providQ that the fencing
does not impede sand movement,
DAveways shall ba allowed.Driveway materials shall be limited to the natural
substrata or&Y61.
Landscap'7nj shall be limited to nztive vegetation and shall not be desigaedto
f=ction as fledge rows or witi6rcaks,or otherwise impede tlz natural flow of
sand across fhe property.Irrigation systems shM be limited tq the zairamum
4
required-co support the native plants! (Caachalle Valley Fringe-toe(i PreseTve
xn sz"to g,�vida lid of allow b1C plants)
2. The shape and o?ientation of the dcxeloprnent envelope shall be approved by the
County in conjwietion with its review of the grading or building p_.mit(s)
whichever occurs first-The County will transmit a copy of the pending
applicahon(s)tofthe LISF WS and CpFG via overnight delivery and allow 15
working days for comments.
3. Pavement raateriels on private rates shall be limited to grading of nanzal
substrata orgzal-el. Any propos,�pavingofpiivate roads usingoth,-rmateri.als
must be approved by the County.T�' s County vnll tansmit a copy of the pen ding
rzlquest to the.Lisms and CDFG Pa overnight delivery end:flow 15 working
days for comments.
i
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Dnect Q141 (714)641-3413
E•mall k�ensan@ru[an.cam
September 26,2000
Via Telecoprter and U.S.Mail
Pete Sorensen
U.S. Fish& Wildlife Service
2730 Loker Ave.,West
Carlsbad, California 92008
Mrchaei R. Valentine
General Counsel
Department of Fish&Game
Legal Office
1416 9th Street, 12th Floor
Sacramento,CA 95814
Re: Fringe-Toed Lizard MOU
Dear Mr.Sorenson and Mr.Valentine:
This will confirm my conference with Mr. Sorensen today and my telephone conference
with Mr. Valentine yesterday regarding the Coachella Valley Fringe-Toed Lazard MOU. During
these conferences, L asked each of you to confirm on behalf of the U.S. Fish& Wildlife Service
and the Department of rish & Game, respectively, that with regard to the MOU, if a loan is
obtained to cover any shortfall between the Coachella Valley Fringe-Toed Lizard mitigation fees
collected in the two years commencing on September 1, 2000,and ending on September 1,2002,
and $2,000,000, that all of mitigation fees collected after September 1, 2002, can be used to
repay the loan rather than being paid to the Center for Nawral lands Management, until such
time as the loan and any interest payments are paid in full.
By copy of this letter, L am informing born Palm Springs and La Quinta of this
confirmation so that those cities can take this into consideration with regard to the proposed
Fringe Toed Lizard MOLT.
1191019o10 W2
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&TUCKS I
Aetc Sorensen
Michael R. Valentine
September 26, 2000
Page 2
Thank you for this clarification
RUTAN&TUCKER LLP
M.Katherine lens
MKJ
cc: Thomas P. Genovese,City Manager,
City of La Quinta
Jerry Herman,Director, Community
Development Department,City of La Quinta
David Aleshire,City Attorney, City of Palm Springs
Douglas R. Evans,Director,
Depanment of Planning and Building,City of Palm Springs
u9lwwo-W
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act.r-�a-uu u�r=uar 4,.u,a c:r,p r rain r rcy�»uuur rauv you .�vu ooy,� r-u.a
Sent By:
Pos5e/n'FaxNola 7571 n711177 ..IN"
crOr
MEMO '1w fr- 777
Steve Nagle —'
DirectoT of Environtnentnl Resources
FROM: Toni Lggcpraatcn r
General Counsel
DATF: September 21,2000
RE TUMF Funds for CVFTL Mitigation
Yau 1;nve asked for a legal opinion with respect to whether or not TLUF funds may be
utilized in cQ=v-wTiOn with site proposed MOU wish, wnong others,the Dcpamnent of
Fish and Game conecruing the allegod take of the hinge toed lizard and its habitat. MY
opinion,as set out below,is that T1.1MF funds maybe used This opinion relies on the
analysis and facts act out b4ow, -
Previously, a fctictal take pcttnrr was issued with respect to Projects within the Coachdta
valley haled aim the mitigation requirements of the Coachella Valley Fringe Toed Lizard
Habitat ConwTvatioa Plan adopted in June of 1984(the At T ho tittle that the Plan
was adopted,the state did not have the power to isauc such a permit. Subseyaent to the
adopriort of the plan,staid law was changed To allow the California Department of Fish
and Game to issue a take pwnait putsuaat to the California Endangcrsd Species Act
(CES4 Accaux the Slue E)Lpartmeut of Fish and Gone(DF&Q)had actively
Participated is the Plan,projects have always gone forward tinder the assmtption that the
P1am satisfied both fcdttal trod state endangered species aers with respect To the fringe-
Tocd lirard. That i6,until the iasnC W W Tai5nd hm 1[hC COn1C1tt Of diSCUSSlOiis on the plans
for an 1.10 interchange in Palm Desert 'For The first tone,a representative of the DF&G
commented in response to a Mfe=ce to the federal take permit that a state take;pernat
bad ucvcr been issued and that application had never been made to DF&G pursuant to
Fish and Game Sertiop 2981(b). That S%wtionprovides that T1ic DMG tali formally find
that the federal take permit is consistent with the state endangered species act. Hoping
That the matter would be Treated as a mere formality,application was made to DF&G for
such a finding. DF&G declined to make that finding. The result of that dererinirration is
that every project wiTbin Pic Coachella Valley is now subject to the noquitements of
CESA with 6spect to the fiinge toed lizard,and its habitat norwiths,=dirig the fact than
there is a fadaral take pGrmit-
In the interest of avoiding litigation on this issue,all of the concerned parties met and
conferred with=spect to how To address the DW concerns. Both the federal and sratc '
aganciesarguedrhar the Plan was iusuf cientinTonnsofpreservingsufficienthabitat;
that the Mitigation measures set Out in the plan wise no tongcr sufficicut;that more
. f .
i
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September 21.2000 page 2
recent stt.dics suggested approximately 12,000 additional aeres iuurt be added to the
preserve area io protect sand sources and wind eotridgrs ir1 order to maintain the
preserves viability as habitat for CVl"FL.
The result of the ncyotialions by all of the interested parties led to the proposal MOU
that rcgaires CVAG and its member l trrisdictioos to provide as addiuonal two Mahon
dollars for acquisition of sand source and corridor lands. Additionally,the MOLT
prgvidcs that the mitigation fees to be collected from all prospective developers by each
-
af the Coachella Valley sipnaiury cities sh-Al be restored to the wi final$600 pet
undisturbed acre impacted by any pmpascd developments. Accordingly,the contribution
by each of the signatory city jurisdictions is apportioned by direct correlation To the
nnmbrs of wres developed within that jtutsdiction. As to each acre developed, the
jurisdiction's mnuibution shalt be the$600 per acre miugatioa tees charged to the
developers. The benefit to each of the signatory city jrrisdiaions is that all development
within the jurisdiction will be the bcneticiary ofbgrh a federal and etatc rake permit with
,septet to the fringe toed lizard and its habitat. Absent such psrliCipatian,ayety project
within the jurisdiction would be subject to satisfaction of CES.A with Mipcct to the ftingc
toed tirard and its habitat-
With respect-to CVAG's interest in this macua,at I transportation projects undertaken by
CVAG would be similarly subject to CESA wiai respect to the fringe toed lrrard and its
habitat trulesi CVAG were likewise a patty to the MOU. As aparty to the MOU,CVAG
will enjoy Rue benefit of a federml and state take permit with rcspax to the fringe toed
lizard and in habitat as to every transportation project onderuken by CVAG. nowcvet,
CVAG has no taxing authority by which it might shoulder its proportionate A are of the
two million dollars collectively required to fund the necessary mitigation. Clearly 112a
impact of CVAG uansportatioa prmjcers on the fringe toed lizard and its habitat is such
that contribution from CVAG for mitigation is reasonable.
Given all of aic above,Ate parties to the MQU hayc considered that CVACa's fair share
rpighrbc funded tbrottghT W monies to the extent necessary to euue any shortfall in
The total stems available fromthc mctnberpuisdictions Such a proposal is a remnable
way of apportioning CVAG's obligation to mitigate with respect to the IMLSltottmlian
Projects it undertakes and for which CVAG will benefit in terms of rcuerilom CESA
with respect to the hinge toad lizard and its habits.
An unfortunite outfall of the position by Rue Depatttuetn of Fish and Game that it will not
eontimuz TO honor the Plan is that the cost of the transportation protects undertaken by
CVACr wilt tiow eacalatc in direct proportion to its obligation to assist with the funding of
this addiaomll wait gatian required by the DF&G. As the budges for such transportation
projects arc prepared years in advance and Mrids apportioned betwccu various projects
and from various sources based on those badger projections,there is some copeem.that
the addiueaal expense in the farm of mitigation raquired by DP&G pursuant to CPSA
may leave:prbjccts under-funded To remedy this it has been suggested that the manlier
jurisdictions retmbt4re TUMP for any funds advancpl W meet the eollouivc obligation
RECEIVED FROH°!s0 240 $949
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Steve Nag1t' M.crriazandum
September 21, 2000 Page 3
Of the parties pursuant 10 the MOU with Af&G. This reimbursement would come from
continuiug in place the$600 per acre mitigation fees charged to devclopefs after the Bate
that the total two mullion doUatpool is funded and until such time as there has been a
TOW feimbursemsent of TUMF.
I bclicvn that such an advauce of TUIv(F monies is perraksibte. Whenever special funds
have been established for the payment of a partcular class of expanCltures or fax a
particular purpose,the general ruic is that those funds cannot then be used for any uthcr
purpose. 1 have reviewed the TLNfP material and confitmcd that the use of TUW funds
is limt led to the spocific purpose of funding rho cost of transportation improvements'
within the region. Therefore,T W funds may only be used for that purpma- Given all
of the above, I believe that an advancement of TUMF funds nocessary to find mitigation
under CESA.rcquitt_^d for Itanspottzrion improvements is clearly within the scope of the
Purpose for which TUMF bas been assessed and set aside.
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MEMORANDUM
TO, Steve Nagle
FROM: M. Katherine Jenson
DATE: September 26, 2000
FILE NO.: 015610-0002
RE: Legal Opinion Fringe-Toed Lizard MOU
In reviewing the legal opinion from Toni Eggebraaten, Legal Counsel for CVAG,we
were confused about the following statement on page 2, first full paragraph: "Accordingly,the
contribution by each of the signatory city jurisdiction is apportioned by direct correlation to the
number of acres developed within that jurisdiction." It was my understanding from prior
statements you had made that there was not going To be any apportionment on this basis. This is
confusing,and we would like clarification. I was unable to find a listing for Toni,so I am
requesting Thai you forward ibis to her as soon as possible so that we may consider her response
in connection with the consideration of the MOU.
In addition,would you please confirm in writing to us CVAG's commitment that it will
make up any sbortfall in the fees with a TUMF loan.
Please send Toni's response and CVAG's written confirmation directly to the City of La
Quinta,to the attention of both Tom Genovese [fax(760)777-71011 and Jerry Herman[fax
(760) 777.1231], as well as to Doug Evans [fax (760) 322-5360]. Please also fax these to my
office at(714) 546-9035,to my attention.
We will need the above items prior To The upcoming council meetings on October 3`a
and, t', 2000. Thank you for your assistance.
cc: Thomas P. Genovese,City Manager, City of La Quinta
Jerry Herman, Director of Community Development, City of La Quinta
Douglas R- Evans, Director,Department of Planning and Building, City of Palm Springs
I19/015010-oW12
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RUTAN &TUCKER LLP
Attorneys at Law
611 Anton Boulevard, 14th Floor
Costa Mesa California 92626-1998
Mailing Address: Post Office Box 1950,Costa Mesa,California 92628-1950
Telephone: 714.641.51u0 Facsimile 714.546.9035
FACSIMILE TRANSMISSION
DAI'E: SEPTEMBER 27,2000
To: Had Copy to Follow via Mail: NO
NAME FAx No, PHONE No.
Thomas P. Genovese,City Manager, (760)777-7101 (760)777-7100
City of La Quints;
Jerry Herman, Director (760) 777-1233 (760) 777-7062
Community Dev elopment Dept.
Douglas R.Evans, Director
Dept. of Planning and Building (760)322-8360 (760)323-8248
City of Palm Springs
FROM: M.Katherine Jenson- 119
RE FRINGE-TOED LIZARD MOU
CLIENT/MATTER No.: 015610-0002 NUMBER Of PAGES,INCLUDING COVER: 3
MESSAGE:
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119I0136104002
T 19911111 a09077100
MINUTE ORDER NO.
ADOPTING 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 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 Centerfor 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 201h day of September 2000.
PATRICIA A. SANDERS
City Clerk
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM
SPRINGS,CALIFORNIA,ESTABLISHING A$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 April 21,
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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