HomeMy WebLinkAboutA6810 - AGUA CALIENTE BAND OF CAHUILLA - HCP CONSERVATION FUND PARTICIPANT AGREEMENT BETWEEN
THE AGUA CALIENTE BAND OF CAHUILLA INDIANS,
TRIBAL HCP CONSERVATION FUND PARTICIPANT AND
THE CENTER FOR NATURAL LANDS MANAGEMENT
This Agreement is entered into this �ds day of W\4kr6 20A�b, by
and between the Agua Caliente Band of Cahuilla Indians (the "Tribe"), the for Natural
Lands Management (the "CNLM") and ( J, of palms fy r) .AA c _Tribal HCP
Conservation Fund Participant (Participant), hereinafter referred to collectively as the "Parties."
For good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereby agree as follows:
I. Biological Opinion (File No. dated �'1j on
the proposed between the U.S. Fish and Wildlife
Service and N/(i issued pursuant to section 7 of the
Endangered Species Act of 1973, as amended, 16 U.S.C. 1533 et seg. (ESA), evaluates the
impacts of the Participant's activities on threatened or endangered species and their habitats
on the Reservation and specifies alternative conservation measures available to the
Participant to minimize the take/adverse effects on said species incidental to the
Participant's activities. In accordance with the biological opinion, the Participant elects
and hereby agrees to deposit, through CNLM, a Tribal Interim Habitat Conservation and
Management Plan (Interim Plan) Conservation Fee established by the Tribe in the amount
of }we i• n„t P� .,a l la .:c I J«� �1 r1 N t %'dollars ($ 21 ` vo (the "Tribal
Interim Conservation Fee") into one or more Tribal Interim Conservation Fund Accounts at
a reputable financial institution reasonably acceptable to the CNLM and the Tribe in such
investments as are approved by the Tribe, as a means of minimizing the incidental take and
adverse effects to threatened or endangered species or their habitats resulting from the
Participant's activities and otherwise reducing the impacts of the Participant's activities on
these species and their habitats.
2. The Parties agree that the total amount of the Tribal HCP Conservation Fee (including any
interest accrued thereon) deposited by the Participant in the Tribal HCP Conservation Fund
Account, with the exception of the management fee identified in paragraph 6 of this
Agreement shall be used, at the direction of the U.S. Fish & Wildlife Service, consistent
with the Interim Plan, for the purchase of land, development rights or conservation
easements established to permanently protect and manage Coachella Valley threatened or
endangered species or their habitats.
3. The Parties jointly acknowledge and agree that the Tribal HCP Conservation Fee shall be
managed and disbursed in accordance with the "AGREEMENT BETWEEN THE AGUA
CALIENTE BAND OF CAHUILLA INDIANS AND THE CENTER FOR NATURAL LANDS
MANAGEMENT" dated June 6, 2005 (Tribal-CNLM Agreement), attached hereto as Exhibit
A. If for any reason the Tribal-CNLM Agreement is terminated,the Tribe shall ensure to the
extent practicable that the Tribal HCP Conservation Fee deposited by the Participant into the
Tribal HCP Conservation Fund Account will be used in accordance with this Agreement to
satisfy the Participant's obligations under the biological opinion referenced above in paragraph
one, and the CNLM shall have no further liabilities or obligations hereunder.
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4. The Participant acknowledges and agrees that it has voluntarily elected to deposit the Tribal
HCP Conservation Fee into the Tribal HCP Conservation Fund Account in satisfaction of their
obligations under the biological opinion and in lieu of carrying out other alternative
conservation measures identified by the Tribe as available to the Participant to minimize the
impacts of the Participant's activities on listed species and their habitats.
5. The Participant further acknowledges that the CNLM's fee for administering the Tribal HCP
Conservation Fund Account(Administration Fee) is two point five percent (2.5%)of the Tribal
HCP Conservation Fee specified above in paragraph one, and agrees to the deduction of said
Administration Fee from the total Tribal HCP Conservation Fee deposited.
6. Participant's check made payable to CNLM - Tribal HCP Conservation Fund Account shall be
forwarded together with a fully executed copy of this Agreement and the Payment Receipt form
to The Center for Natural Lands Management at 215 West Ash Street, Fallbrook, California
92028-2960.
7. Participant acknowledges and agrees that the CNLM's sole obligation pursuant to the terms and
conditions of the Tribal-CNLM Agreement and this Agreement, hereinafter referred to
collectively as "the Agreements," is to accept the Tribal HCP Conservation Fee, deposit the
Tribal HCP Conservation Fee into the Tribal HCP Conservation Fund Account and to disburse
the Tribal HCP Conservation Fee solely at the direction of the Tribe, subject to the terms and
conditions of the Agreements. The CNLM is accepting the Tribal HCP Conservation Fee
solely as an accommodation to the Tribe and the Participant. Participant acknowledges and
agrees that acceptance, deposit and disbursement of the Tribal HCP Conservation Fee by the
CNLM does not create any liability or duty to Participant and Participant hereby releases the
CNLM from any and all liability or claims due to the existence of these Agreements, the Tribal
HCP Conservation Fund Account, Participants development and/or the ESA.
8. Participant acknowledges and agrees that the CNLM has made no representations or warranties to the
Participant whatsoever and Participant assumes all risks related to its proceeding with development
activities, in reliance o the CVFTLHCP and/or Section 7 authorization issued to the Participant
through the V� . Participant does hereby agree to indemnify the
CNLM,defend and hold the CNLM harmless from and against any and all claims,damages, and all
claims, damages,losses,liabilities,costs and expenses, including without limitation,attorneys'fees
arising out of or in any way connected with or related to the Agreements,the Tribal HCP
Conservation Fund Account,Participant's development and/or any action related to Section
I0(a)(1)(B)of the ESA.
9. Participant acknowledges and agrees that the Tribe has made no representations or warranties
to the Participant whatsoever and Participant assumes all risks related to its proceeding with
development activities, in reliance on the CVFTLHCP and/or Section 7 authorization issued to
the Participant through the S 4 . Participant does hereby agree to
indemnify the Tribe, defend and hold the Tribe harmless from and against any and all claims,
damages, losses, liabilities, costs and expenses, including without limitation, attorneys' fees
arising out of or in any way connected with or related to the Agreements,the Tribal HCP
Conservation Fund Account, Participants development and/or any action related to Sections 7
or 10(a)(1)(13) of the ESA. In addition, Participant agrees to indemnify the Tribe, defend and
hold the Tribe harmless from and against any and all claims, damages, losses, liabilities, costs
and expenses, including without limitation, attorneys' fees in the event that any claim is
brought against the Tribe for any act or omission arising out of or any acts it takes pursuant to
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the Agreements, the Tribal HCP Conservation Fund Account, Participant's development and/or
Sections 7 or 10(a)(1)(B) of the ESA.
10. This Agreement may be executed in several counterparts and all counterparts so executed shall
constitute one agreement which shall be binding on all of the parties, notwithstanding that all
of the parties are not signatory to the original or the same counterpart. If any provision of this
Agreement is held invalid,the other provisions shall not be affected thereby. This Agreement
represents the entire agreement of the parties and may not be amended, except in writing
signed by each party hereto. Each party to this Agreement warrants to the other that it is duly
organized, validly existing and, if a corporation, qualified to do business in the State of
California, and that it and the respective signatories have full right and authority to enter into
and consummate this Agreement and all related documents.
In w' e$s whereof, this Agreement is executed as of the date and year first above written, at
'��1. . California.
AGUA CALIENTE BAND OF CAHUILLA INDIANS
By:
Signature
Name:
Title:
THE CENTER FOR NATURAL LANDS MANAGEMENT
By:
signnmre
Name:
Title:
ONSERVATION FUND P ANT
By- � APPROVED BY CITY COUNCIL
igna__urceo��
O1\'W`
20 P.A02
APPROVED BY CITY MANAGER
Title: CA* AA.AlAtA
APP �D A5 TO FORM
/ y Cierk
CITY ATTORNEY�,�
DA�O4r - / 3of3
AGUA CALIENTE BAND OF CAHUILLA INDIANS
TRIBAL HCP CONSERVATION FUND ACCOUNT
PAYMENT RECEIPT
PROJECT PARTICIPANT INFORMATION
Name: or 1 lrn �nnne C
Address: SZoo F 1a g i C,
Telephone:
Contact:
PROJECT INFORMATION,1
Project Name: CuhVe hu CPn 1'f..r�c„ ! O� iMnruvPN ( ,7(
Project Location: (14An
County: ever; �e
Project Description:i Flu 61 � i'ar ,rc La•�
Tribal File V/A Cops/Other File #: e. h� o /U� 1 V-0,f
Total Acres Impacted: r1 U Acres of Listed Species Impacted: 9'
FEE INFORMATION rt
Total Payment Amount: !t 2�i .3S i l� l� o LU!"I )�rec
PAYMENT INFORMATION
Payee: Center for Natural Lands Management
Payer:
Amount: (s.2 q °v )
Method of Payment
Check No. Money Order No. Wire Transaction
Received by CNLM:
Names - •- - Title
(Signature) Date:
4,
:V
Exhibit A
AGREEMENT BETWEEN THE
AQUA CALIENTE BAND OF CAHUILLA INDIANS
AND
THE CENTER FOR NATURAL LANDS MANAGEMENT
This Agreement is made this_4L__day of 2005,by and between the Agua Caliente
Band of Cahuilla Indians, a federally-recog i zed Indian tribe with offices at 600 E. Tahquitz
Canyon Way, Palm Springs, CA 92262 ("Tribe")and the Center for Natural Lands Management,
a California non-profit corporation with offices at 425 E.Alvarado Street, Suite H
Fallbrook, CA 92028-2960("CNLM"), hereinafter referred to collectively as the"Parties' and
establishes the Tribal HCP Conservation Fund (hereafter referred to as the "Conservation Fund").
I. RECITALS
This Agreement is based on the following facts, intentions and expectations:
A. The Tribe and the CNLM wish to cooperate in the acquisition and development of
reserves for the Coachella Valley Fringe-toed Lizard within the Coachella Valley
as identified in the Interim Agua Caliente Tribal Habitat Conservation and
Management Plan("Interim Plan"). A major goal of this program is to provide an
effective,efficient means by which the Tribe, allottees and/or private individuals
(hereafter collectively referred to as the"Applicants"),can, in accordance with the
Endangered Species Act of 1973,as amended(ESA), minimize certain impacts of
their projects on sensitive species found in the Agua Caliente Indian Reservation,
("ACIR"), including all lands within the exterior boundaries of the ACIR,as
originally established by Executive Order,federal patent,purchase,or otherwise,
including Tribal trust land, allotted trust land,and fee land,and to carry out their
obligations in a manner that allows the Tribe to maximize conservation measures
for the species and the ecosystems upon which they depend.This agreement is the
vehicle by which the Tribe intends to collect and distribute mitigation fees for the
Interim Tribal Habitat Conservation Plan as explained in the Tribe's letter to the
Service dated May 26.2004. Pursuant to this Agreement,third parties will, at the
direction of the Tribe, deposit fees into one or more accounts as defined in
Paragraph II.A 2(a). The CNLM will cause the disbursement of the funds held in
these accounts to approved transactions in support of the acquisition and
development of Fringe-toed Lizard reserves.
B The Tribe, a sovereign nation has jurisdiction over the conservation. protection,
enhancement and management of wildfire, native plants and ecosystems necessary
for biologically sustainable populations of species on the Reservation.
C. The CNLM is a non-profit curporation of the State of California that v.as created
I
In 1990 in plcscl l c If IUSC pi'luls and tallllials Ill dear tltnatal Covitolli lellis and
protect the diversity of species w'ilh co aside ration for their complicated
ill terrelationshipS.
D. The purpose tll this Agreemem iS to liteiIitate the prceereation. restoratiol I. and
el Ill a lice nical of tilt'.Initled 1'rill .'•tUCil Id7aI'd WSeI VC al'CaS by prOvidn1L 'et nlcatl5
for third JMMCs «i expedite their compliance with the ESA Ill]OL gh payment of
Conservation Fccs to be used to conserve those identified reserves. The Interim
plan enables the Tribe to continue to exercise its long-standing' tradition as it land
use nla1IM-M,and Steward or the natural resources in and around the Reservation
bq assuming a role as the pritinar%y mana;er oi'sueh resources and the land uses
that impact them - a role that is recognized as appropriate be the U.S. Department
of the Interior in Joint Secretarial Order 3206 and the USFWS Native .11 nerican
Policy.
E. This agreement is intended to he consistent with the conservation objectives in the
original C'VFTL FICP, as reflected in the Tribe's A7ay 1_6, 2004 letter to the
Service.
1[. AGREEMENT
In consideration of the recitals set forth above,the covenants herein and other
consideration. the receipt and adequacy of which are hereby acknolvledged. the Parties
agree as follows:
A. Obtieations of the Parties
1. Tribe
lai The Tribe shall make available a program for Applicants n> provide
Conservation Fees in order to minimize the effacts of projects resulting in
impacts to listed species occurring vdthin the ACIR. The Tribe shall
notir Applicants of the availability orthe Conservation Fee option. file
payment ol-lahich will satisfy.in whole or in part; the Applicant's
respoosibititic under[lie 1-SA and other lav:s in address project impacts
o❑ these species and their habitats.
fbi I lie I vibe shall inlornt rach Applicant in wi itiu-that flaynient of
C'on,cr'ation Fee, into the Couscriation Fund Account (as defiucd herein
below) is 111MIdaLV" to satiSfr. the Applicant'>obligation under ilte' LS:A it,
:shires the impacts omit::project an these species and their habitat. The
fribc shall provide each Applicant with a copy of this; Agreement prior to
the Applicanl s payrilc ll of the Conservation Fee anti odv ise the Applicant
that the C NI_IM s Fee Ihr administering the Conservation Fund shall he the
antoun; Bel forth below in Parag_n aph ILA.'_(bl of this Agreement. An
additional agreement.attached herein and in the form thereof, as Exhibit
A. shall be executed b) the Service. the CNL M and the Applicant for each
fee deposited to the Conservation Fund Account.
c) The Tripe and the C.S. Fish 6L, Wildlife Sc rvice("Service"). consistent
with the Interior Plan. will direct all Conservation Fees(leposited ill the
Conservation Fluid Account in accordance with this Agreement. and
interest and earnings thereon, and all disbursements front the Account,
with the exception of the Management Pee identified under Paragraph
II..A3(b) helot, to finance the acquisition and mama enlent of lands as
provided in Paragraplrs II.A.I(a) and (b)above.
2. CNLM
(a) Conservation Fees will be deposited into one or more interest-bearing
accounts ("Conservation Fund Account') at a reputable financial
institution acceptable to the Tribe. Any interest or earnings accrued shall
remain with the account.
(b) Lipon deposit by the CNLM of the Conservation Fee in the Conservation
Fund Account, the CNLM shall deduct from the Conservation Fund
Account, a Management Fee, set at the rate of two point five percent
(2.5%)of each deposit in the Conservation Fund Account to defray the
costs associated with administration of the Account. This Manasclnent Fee
will be the sole monetary compensation due to the CNLM under this
Agreement.
(c) The CNLM shall provide to the Tribe on or before December 1" ofcach
year. an annual accounting showing the deposits. interest and earnings
received, ([ishu Bernell ls of all Bunts made pursuant to this Agreement. zinc[
the associated Tribe file numbers related to each tiansactiun, clurille the
preceding fiscal yea;period beginning October 1 ' and ending un
September 30"'.
idl Cousistcln %. ith the Interim t'lan. Ilse C'h'L�IM sh:dl continue to dkhw'se
funds according to policies established by the Service and the Interim
Plan. the Service is to he .,oleic responsible for identif%in , and approving
appropriate lands to he acquired and mall[Led lvitb tilt: Conservation fees �
consistent aitll the Interim Plan and shall direct the (.'tiLAI to dishlirse
Irnid: frail'. lhr CorlFelvztion Fund AC( Otillt IOr-AlCk t1C(Itn aloft and
Il11ti7aHeiP Cn Inelllilni!= r:;tiiUGinOn �:'hc:n it1711C01)1'l ill2.
Ill. SPLCIAI. TERMS AND CONDITIONS
A. This Agreement (1,CS lint impose upon the CNL\1 an) obligations w maintain all
aecuunLill, nfthe hiolanieal values associated with Conservation Fees deposited
nr disbursal pursuilm to this A_wement or to match Conservation Fees deposited
With specific habitat acquisitions.
E3. Nothing-) in this Agreement shall prohibit the disbursement o1 Couservatitm Fees
to enable the purchase of a land parcel otherWise appropriate lbr use as a
conservation bank or other cummation purpuse, because a portion of the parcel
is not suitable for habitat conservation. Because habitat ❑ia) occur within a far_•er
land parcel that is onl} available as a single alibi,disburseinetits front the
Conservation Fund Account nut; be made w acquire an entire parcel.
C Noavithstanditg anything contained herein to the contrary, the CNLM shall have
no obligation pursuant to this Agreement other than m deposit and dishurse the
Conservation Fees in accordance with this Agreement, sul?icet to the terms and
conditions hereof.
IV. EFFECTIVE DATE
This Agreement shall utkc effect immediately upon execution by the Tribe and the C\L.M.
V. TERM OF AGREEMENT
Except as othemise provide(l herein, this Agreement~hall be in effect until o 10lai Permit i�
issued to the-Tribe and an hnplententin g Agrcentant is si,mcd establishing the Find Tribal
Ilabita t Conservation Plam but in no case longer than December 31.20W9.
VI. S
Amcnam::nt. in thi, Agreement nta•, be pn,h«:ed h;:either !'art, and shall beCbnl e upuil
the RrillCn agl�8'nrern of hnlh Parties.
d
V•II. "FERMINATIM
This Agreement ma} be terminated by either Party %sN)Ol l cause at anytime upon thirty (30)
days written notice to the other Pa!ty and Service. Lipon termination. the CVLE1 shall prov"ide
the Tribe and Service With an aceountillY for The Conservation Fund Account in accordance with
the procedure set forth in Poragraph II.A."_'.cj of this_ Agreement. All funds remaining in the
account sltatl he transferred to at eatip dcsignaled by the Tribe and npprovcd bN the Service to
r'eceix c such funds. Within 30 flays rollowing final disbursal of funds; the CNLN1 shall provide
the Tribe and Service it final accounting showing the deposits(including interest accrued
thereon) and disbursements of all sums rcccived pursuant to this Agreement_ from the date of the
last annual aecn Lill tiME.through the date of lin:d disbursement.
VIIL tMISCELLANFOLIS PROVISIONS
A. Entire Agreement
]'his Agreement and its related Exhibits contain the entire atireement of the Planes with
respect to the matters covered by this Agreement, and no other agreement, statement or
promise made by either Party,or to arty employee.officer, or agent of either Party, which
is not contained in this Agreement shall be binding or valid.
B. Interpretation and I-leadin^_s
The language in all parts of this Agreement shall in all cases be simply construed
according to its fair meaning and not shictly ror or against either Party. Headings of the
paragraphs ol'this Agreement are for the purpose of convenience out) and the words
contained ir, such headings shall in no Way be held to explain, modify. amplify. or aid in
the interpretation. construction. or nwanine of the provisions of this Agreement.
C. Notices
All tolices. demands.or requests IFont one part) to the other Ptu't} may be pm n aliv
delivered.sent h.\ facsimile. sent b, recn-L*nized overnight delivery service. or sent by
mail certified or registered.posutge prepaid. to the addresses stated in this paragraph and
shall he effecliv- at tic time of personal delivery. facsimile. u:ulsmission. or mailing.
lltc "fI ihe: 650 l ahquitz Canyon Way
Palm Springs. CA q''G'
Attn: "I homas J. Davis. Chief Plannim_ officer
Tdkphone: f 601 =, -=400 xI
icc�imile: 1760i 32?-Oi
_i East Al\t izado Street. Su r: 1-1
l aiihrook- A 910L,N_9fiti
Aneatiun: Sheer: Teresa. EvcutF.'c Director
Telel?hoar. (7riill 7',1-7790
f aCsimii L': t-10017i 1-7171191
pith.r Party Ilia-, chtnlgc the address Io whidi such noticzs. dcniamis. requcat of other
colnuulnications nmy he sent he uk iuu the oLlwr Part) writian notice o(sueh ch lw�'. Tilt
Part1C5 agree to acLept t.Li:ilntllc tl'an9wiued sumcd doctmicivs and Ngree to rely till .such
doCtlmCllts as if Eli,,. bo1'e uri(dltal si�lllaltlr S. Lad) PtlM epl'eQS LO picivide Lo ills other
Part%. Nvitbin seve[it -[crio(79) hours inter it 11linli3Si0n. such duCLIlnelit5 bearing the
orieinal si natures.
D. Successors and .<Assiums
'[his Agreement. and the riuht. and obligations thetzunder shall not be transferred or
otherwise assigned by the CNLAM without the prior wi itten approval of the proposa:d
transferee assigilee by the Tribe.
E. Execution
This Agreement nla} be executed in saceral counterparts and all counterparts sn executed
Shall constitute one agreement n'hieh shall be binding on all of the parties,
noncithsiandin that all of the parties are not signatory to the original or the sane
counterpart. If an} provision of this Auireernant is held invalid. the other provisions shall
not he affected therebc This Aurcgmem represents the entire agreement of the parties
and gray not be amended.except in writing signed by each party hereto. Each part) to
this agreement o:anants to the other thw it is dtt[y organized. )alidly existing and- if a
colpnratinu.qualified to du business in the State of California. and that ii and tic
I :spCClil e stgllalorlcs hilt t hill I'ic!!It doll it fflhimtC it, cute: Into mitt cout5,u tmaw Illi�
A_4eenIL,Ilt and all related docum wn .
[N WITNESS WHERFOP. the Parties executed this Aer=ilcm as Of 61e dote set (orth
above:
AG[ A C"KI IE-\1;1-1_ BAND OF CAH[IILLA INDIANS
1�
Name:
Title: I�. .t ,(_ N(ld(.o
Dme: 0�DLj
CENTER FOR NI-A�-T ilt L CA DS 4fANAGENIEN'T
Title s -7
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