D - Final Implementing Agreement
IMPLEMENTING AGREEMENT
BY AND BETWEEN
THE CITY OF RANCHO PALOS VERDES
AND
THE PALOS VERDES PENINSULA LAND CONSERVANCY
AND THE
CALIFORNIA DEPARTMENT OF FISH AND WILDLIFE
AND THE
U.S. FISH AND WILDLIFE SERVICE
FOR THE
CITY OF RANCHO PALOS VERDES
NATURAL COMMUNITY CONSERVATION PLAN
AND HABITAT CONSERVATION PLAN
(NCCP/HCP)
October March 20198
D-1
i
TABLE OF CONTENTS
1.0 PARTIES TO THIS AGREEMENT ................................................................... 1
2.0 RECITALS ............................................................................................................ 1
3.0 PURPOSE .............................................................................................................. 4
4.0 DEFINITIONS ...................................................................................................... 4
5.0 FINDINGS BY THE USFWS AND CDFW ..................................................... 13
6.0 NATURAL COMMUNITY CONSERVATION PLAN/HABITAT
CONSERVATION PLAN .................................................................................. 13
7.0 RESERVE DESIGN AND CONSERVATION STRATEGY ......................... 14
7.1 Existing Public Lands to be Dedicated to the Preserve .................................... 14
7.2 Other Private and Public Targeted Lands for Dedication to the Preserve ........ 15
7.3 Neutral Lands .................................................................................................... 15
7.4 Conservation Easements ................................................................................... 15
7.5 Habitat Restoration/Enhancement Potential ..................................................... 16
8.0 COVERED Projects and ACTIVITIES............................................................ 16
8.1 Covered CITY Projects and Activities ............................................................. 17
8.2 Covered Private Projects and Activities ........................................................... 17
8.3 Other Covered Activities .................................................................................. 17
8.3.1 Operation and Maintenance .......................................................................... 18
8.3.2 Public Use ..................................................................................................... 18
8.3.3 Preserve Management ................................................................................... 19
8.4 Habitat Impact Avoidance and Minimization Measures for Covered Projects
and Activities .................................................................................................... 19
8.5 Avoidance and Minimization Measures for Covered Species .......................... 19
8.6 Restrictions and Requirements for Projects/Activities Abutting and Adjacent to
the Preserve ...................................................................................................... 19
9.0 TAKE AUTHORIZATIONS ............................................................................. 20
9.1 Take Authorizations for Permittee .................................................................... 20
9.2 Timing of Take Authorizations ......................................................................... 20
9.3 Take Authorizations for Non-Listed Covered Species ..................................... 20
9.3.1 ESA Section 10 ............................................................................................. 20
9.3.2 NCCP Act ..................................................................................................... 20
9.4 No Take Authorization for Fully Protected Species ......................................... 20
9.5 Take Authorizations for Third-Party Participants............................................. 21
9.5.1 Grant of Take to Third-Party Participants .................................................... 21
9.5.2 Requirements for Third-Party Participants ................................................... 22
10.0 OBLIGATIONS OF THE PARTIES ................................................................ 22
10.1 Obligations of the CITY ................................................................................... 22
10.1.1 Assembly of Preserve System ................................................................... 22
10.1.2 Management of the Preserve System ........................................................ 23
10.1.3 CITY Implementation Process .................................................................. 23
10.1.4 CITY Ordinance or Urgency Ordinance (CITY Interim Resource
Protection Ordinance) ............................................................................................... 24
10.1.5 CITY Ordinance Revisions or Amendments. ........................................... 24
10.1.6 CITY and Wildlife Agency Coordination................................................. 24
D-2
ii
10.1.7 Compliance with Existing Federal and State Wetland Regulations. ........ 25
10.2 Obligations of the Palos Verdes Peninsula Land Conservancy ........................ 25
10.3 Obligations of the USFWS ............................................................................... 25
10.3.1 Section 7 Consultations............................................................................. 25
10.3.2 Future Environmental Documentation ...................................................... 26
10.4 Obligations of CDFW ....................................................................................... 26
10.4.1 CEQA ........................................................................................................ 26
10.4.2 Future CEQA Review by CDFW ............................................................. 27
11.0 PRESERVE MANAGEMENT .......................................................................... 27
11.1 Non-Native Animal Species Management Plans ................................................. 27
11.2 Habitat Restoration Plan ................................................................................... 27
11.3 Targeted Exotic Removal Plan for Plants ......................................................... 28
11.4 Covered Species Reintroduction ....................................................................... 28
12.0 MONITORING, MANAGEMENT, AND REPORTING ............................... 29
12.1 The Public Use Master Plan .............................................................................. 29
12.2 Fire and Fuel Modification in the Preserve ....................................................... 29
12.3 Fencing and Signage. ........................................................................................ 30
12.3.1 Fencing ...................................................................................................... 30
12.3.2 Signage ...................................................................................................... 30
12.4 Covered Species Monitoring............................................................................. 30
12.5 Wildlife Agencies Monitoring .......................................................................... 30
12.6 Reporting........................................................................................................... 30
12.6.1 Preserve Habitat Management Plan .......................................................... 30
12.6.2 Annual Reports ......................................................................................... 31
12.6.3 Comprehensive Reports ............................................................................ 32
12.6.4 Annual Coordination Meetings ................................................................. 33
13.0 ADAPTIVE MANAGEMENT .......................................................................... 34
13.1 CITY and PVPLC-initiated Adaptive Management ......................................... 34
13.2 Reductions in Mitigation................................................................................... 34
13.3 No Increase in Take .......................................................................................... 35
14.0 FUNDING ............................................................................................................ 35
14.1 Management Budget Analysis .......................................................................... 35
14.2 Habitat Management Funding........................................................................... 36
14.2.1 Habitat Restoration Fund .......................................................................... 37
14.3 Non-Wasting Endowment Fund ....................................................................... 37
14.4 Effect of Inadequate Funding............................................................................ 38
15.0 CHANGED CIRCUMSTANCES ...................................................................... 39
15.1 CITY-Initiated Response to Changed Circumstances ...................................... 39
15.2 Wildlife Agency-Initiated Response to Changed Circumstances ..................... 39
16.0 REGULATORY ASSURANCES ...................................................................... 39
16.1 Assurances under the ESA. ............................................................................ 39
16.1.1 No Surprises .............................................................................................. 39
16.1.2 Unforeseen Circumstances ........................................................................ 40
16.2 Assurances Under the NCCP Act ..................................................................... 40
16.3 Process to Respond to Unforeseen Circumstances ........................................... 40
16.4 Interim Obligations Upon a Finding of Unforeseen Circumstances ................. 41
D-3
iii
17.0 PERMIT TERM.................................................................................................. 41
17.1 Effective Date ................................................................................................... 41
17.2 Permit Term ...................................................................................................... 41
17.3 Extension of the Permits ................................................................................... 41
17.4 Withdrawal by the CITY .................................................................................. 41
18.0 PLAN AMENDMENTS ..................................................................................... 41
18.1 Minor Amendments .......................................................................................... 41
18.1.1 Additions to the Preserve .......................................................................... 43
18.2 Major Amendments .......................................................................................... 43
18.2.1 Process for Adding Species to Covered Species List ............................... 44
18.3 Annexations ...................................................................................................... 44
19.0 ENVIRONMENTAL REVIEW ........................................................................ 45
19.1 Federal Law - NEPA ......................................................................................... 45
19.2 State Law - CEQA ............................................................................................ 45
20.0 SUSPENSION OR REVOCATION OF PERMITS ........................................ 45
20.1 Federal Permit ................................................................................................... 45
20.1.1 Federal Permit Suspension ........................................................................ 45
20.1.2 Reinstatement of Suspended Federal Permit ............................................ 45
20.1.3 Surrender or Revocation of the Federal Permit ........................................ 46
20.1.4 Responsibility of the United States ........................................................... 46
20.2 The State Permit ................................................................................................ 46
20.2.1 Permit Suspension ..................................................................................... 46
20.2.2 Reinstatement of Suspended Permit ......................................................... 46
20.2.3 Permit Revocation or Termination............................................................ 47
20.2.4 Responsibility of the State of California. .................................................. 47
21.0 TERMINATION OF PERMIT ......................................................................... 47
22.0 DISPUTE RESOLUTION.................................................................................. 48
22.1 Dispute Resolution Process............................................................................... 48
23.0 MISCELLANEOUS PROVISIONS.................................................................. 49
23.1 Incorporation of the NCCP/HCP ...................................................................... 49
23.2 Changes in Environmental Laws ...................................................................... 49
23.3 Governing Law ................................................................................................. 49
23.4 Reference to Regulations .................................................................................. 50
23.5 Applicable Laws ............................................................................................... 50
23.6 Independent State and Federal Permits ............................................................. 50
23.7 Successors and Assigns..................................................................................... 50
23.8 Notice ................................................................................................................ 50
23.9 Entire Agreement .............................................................................................. 51
23.10 Availability of Federal and State Appropriations ............................................. 51
23.11 Duplicate Originals ........................................................................................... 51
23.12 No Third-Party Beneficiaries ............................................................................ 51
23.13 Due Authorization ............................................................................................. 52
23.14 Counterparts ...................................................................................................... 52
23.15 Agreement is not an Enforceable Contract ....................................................... 52
Exhibit A - Model Certificate of Inclusion ................................................................... 54
Exhibit B - City Interim Resource Protection Ordinance ........................................... 55
D-4
iv
Exhibit C - Species Covered Under the Plan (10) ........................................................ 61
Exhibit D - Management Agreement Between the City and PVPLC ........................ 62
Exhibit E - Conservation Easement ............................................................................ 119
D-5
v
EXHIBITS
EXHIBIT A – Model Certificate of Inclusion
EXHIBIT B – City Interim Resource Protection Ordinance
EXHIBIT C – Species Covered Under the Plan (10)
EXHIBIT D – Management Agreement Between the City and PVPLC
EXHIBIT E – Conservation Easement
D-6
1
1.0 PARTIES TO THIS AGREEMENT
The Parties to this Implementing Agreement (“Agreement”) are the City of Rancho Palos
Verdes, California (“CITY”), Palos Verdes Peninsula Land Conservancy (“PVPLC”), a
nonprofit organization, the California Department of Fish and Wildlife, a subdivision of
the California Resources Agency (“CDFW”), and the U.S. Fish and Wildlife Service, an
agency of the United States Department of the Interior (“USFWS”), hereinafter collectively
called the “Parties”. The USFWS and CDFW are hereinafter collectively referred to as the
“Wildlife Agencies”.
2.0 RECITALS
The Parties have entered into this Agreement in consideration of the following facts:
2.1 The CITY consists of 13.6 square-miles located on the southwest side of
the Palos Verdes Peninsula in Los Angeles County and was incorporated in September 7,
1973. It is bounded to the north by the cities of Rolling Hills, Rolling Hills Estates and
Palos Verdes Estates, and to the east by the community of San Pedro in the South Bay.
2.2 The CITY’s interest in preserving sensitive natural communities and habitat
dates back to its adoption of the General Plan Natural Environment/Open Space and
Conservation Element on June 26, 1975. Through the General Plan process, the Citizens
Advisory Group’s primary recommendation was to make the protection of wildlife habitats
and sensitive species an open space priority through the Natural Environment Element.
2.3 In November, 1990 the CITY Council authorized the first technical studies
for a habitat management plan for the Natural Environment Element of Rancho Palos
Verde’s General Plan.
2.4 The State of California adopted the Natural Community Conservation
Planning (NCCP) Act (NCCP Act, Fish and Game Code 2800 et seq.) in 1991. The CITY
expressed its intent to prepare and implement a NCCP and habitat conservation plan (HCP,
collectively, NCCP/HCP) by signing a Memorandum of Agreement with CDFW and
USFWS in 1991, a NCCP Enrollment Agreement with CDFW in 1992, and a NCCP
Planning Agreement with CDFW and USFWS for the Palos Verdes NCCP Subarea in
March 1996.
2.5 In 1993, the USFWS listed the coastal California gnatcatcher (Polioptila
californica californica) as a threatened species under the Endangered Species Act (ESA),
16 U.S.C. §§ 1531 et seq., as amended, and adopted a section 4(d) Special Rule for the
interim take of coastal sage scrub while plans are being completed. The coastal California
gnatcatcher inhabits portions of the CITY.
2.6 The CITY developed a landscape-scale Geographic Information System
(GIS) and database of biological resources and land-use information to allow for the Parties
to make informed conservation decisions for future projects to ensure NCCP principles are
D-7
2
implemented in land-use actions. Included in this database was the mapping of vegetation
communities, sensitive-species distributions and their potential habitat and development
pressures.
2.7 The Palos Verdes Peninsula Land Conservancy (PVPLC) will act as the
designated habitat manager for the CITY’s NCCP/HCP Preserve (Preserve).
2.8 The CITY developed the NCCP/HCP (Plan) to meet the requirements of the
ESA and the NCCP Act. Consistent with the NCCP Act, the Plan is a comprehensive broad-
based habitat planning effort intended to provide for effective long-term conservation and
management of wildlife and natural communities, while continuing to allow compatible
development in accordance with the CITY’s General Plan. The NCCP process is intended
to be an effective tool to protect natural biological biodiversity and reduce conflicts
between conservation of wildlife, plants and their habitats in the CITY while allowing for
reasonable land use and economic development. The Plan was developed through a
cooperative effort involving the CITY, PVPLC, USFWS, CDFW, local government
agencies, property owners, developers, and environmental groups.
2.9 The Plan proposes to provide for the regional conservation of natural
wildlife diversity through preservation of sufficient habitat in an appropriate configuration
that provides for comprehensive management and the conservation of Covered Species,
while allowing for compatible and appropriate development and growth.
2.10 The CITY’s Plan addresses the conservation needs of ten (10) Covered
Species through take avoidance, minimization, and mitigation measures and through the
conservation and management of natural vegetation communities in a configuration that
ensures their long-term survival and persistence. The Plan addresses potential impacts to
species and natural habitat loss from expected urban growth, and creates a program to
avoid, minimize and mitigate and manage for direct and indirect impacts to Covered
Species and their habitats for both development and maintenance activities within
the CITY.
2.11 The CITY’s Plan, including this Agreement, is intended to satisfy the
conditions under which the CITY, for the benefit of its citizens, including public and
private landowners with development projects within its boundaries, will receive from the
Wildlife Agencies certain take authorization (Permits) for Covered Species under section
10 of the ESA and 2835 of the NCCP Act that are addressed in the Plan which is incidental
to otherwise lawful activities as authorized by the CITY. The Plan also satisfies the
conditions established in the Federal section 4(d) Special Rule for the coastal California
gnatcatcher codified at 50 C.F.R. § 17.41(b), for exempting Incidental Take (Incidental
Take or Take) of the coastal California gnatcatcher from the prohibitions of section 9 of
the ESA.
2.12 Covered Species identified for coverage under the Federal Permit include
both listed and Non-Listed animal and Non-Listed plant species under ESA. The State
Permit does not include any listed animal or plant species as Covered Species. Including
D-8
3
Non-Listed species as Covered Species under the Plan is intended to help prevent such
species from becoming listed in the future and to promote certainty regarding how any
future listing of such Non-Listed Covered Species will affect mitigation requirements for
Covered Projects and Activities within the CITY. Take of listed plant species is not
prohibited under the ESA; however, several Non-Listed plant species are identified for
coverage under the Federal Permit in recognition of the conservation benefits provided for
such species under the Plan. The Parties intend that such covered plant species will receive
the benefit of the USFWS’s “No Surprises” Rule (50 C.F.R. §§ 17.22(b)(5)(iii) and
17.32(b)(5)(iii)). Any reference in this Agreement to the Incidental Take of a Covered
Species, shall for purposes of covered plant species under the Federal Permit, mean the
direct or indirect loss or destruction of, or injury to, covered plant species incidental to a
Covered Project and Activity.
2.13 Implementation of the Plan and Preserve Habitat Management Plan
(PHMP) will allow the CITY to administer planned development and maintenance
activities identified as Covered Projects and Activities in the Plan, while meeting the
conservation requirements of Covered Species through conserving and managing a local
Preserve System that also meets the mitigation needs of Covered Projects and Activities
for the duration of the Permits.
2.14 Any Covered Project or Activity approved by the CITY must be in
conformance with the Permits and the Plan, including the habitat and species conservation
goals, requirements, and measures found in Sections 4.0, 5.0, and 7.0 of the Plan, including
Tables 4-1 and 4-2 of the Plan.
2.15 Conservation of natural communities and wildlife will significantly enhance
the quality of life in the CITY by setting aside lands for conservation and the future use
and enjoyment of the citizens of the City of Rancho Palos Verdes, the State, and the nation.
2.16 The CITY has submitted a section 10(a)(1)(B) Incidental Take Permit
application, and associated NCCP/HCP to the CDFW and USFWS, respectively, in support
of a NCCP Permit and section 10(a)(1)(B) Incidental Take Permit.
2.17 The Plan developed by the CITY with the technical assistance of the
Wildlife Agencies encompasses the entire jurisdiction of the CITY (Plan Area), which
consists of approximately 8,616.5 acres within the CITY’s municipal boundaries, Los
Angeles County, California, as depicted in Figure 2-1 of the NCCP/HCP. The City of
Rancho Palos Verdes is the only jurisdiction within the Palos Verdes Peninsula NCCP
Subregion, as described in the Southern California Coastal Sage Scrub NCCP Process
Guidelines (CDFG 1993), that has chosen to participate in the NCCP planning process.
2.18 The City of Rancho Palos Verdes’ NCCP/HCP is the first to occur in Los
Angeles County. The CITY is hereby acknowledged as the first city in Los Angeles County
to formally contribute to the conservation of listed and sensitive plant and animal species
and their habitat on a subregional basis through an NCCP.
D-9
4
2.19 The USFWS is a Federal agency within the United States Department of the
Interior charged with responsibility for administering the ESA and providing for the
conservation of federally listed species and their habitat. The USFWS is authorized to issue
a Take permit under section 10(a) of ESA for the incidental Take of federally listed species
provided that the applicant for such a permit submits an HCP that meets permit issuance
criteria set forth in section 10 of the ESA.
2.20 CDFW is a State agency within the California Natural Resources Agency
charged with responsibility for administering the California Endangered Species Act
(CESA) and the NCCP Act. CDFW is authorized to issue permits under section 2081 of
the Fish and Game Code to authorize the incidental Take of State listed species. CDFW is
further authorized to issue permits under section 2835 of the Fish and Game Code to
authorize the Take of any species, whether or not it is listed as an endangered, threatened
or candidate species under State law, where the conservation and management of the
species is provided for in a NCCP approved by CDFW.
3.0 PURPOSE
The purpose of this Agreement is to clarify the provisions of the Plan and the processes the
parties intend to follow to ensure successful implementation of the Plan in accordance with
the Permits and applicable law.
4.0 DEFINITIONS
The following terms as used in this Agreement shall have the meanings set forth below.
Terms specifically defined in ESA, CESA, or NCCP Act or the regulations adopted by
USFWS and CDFW under those statutes shall have the same meaning when used in this
Agreement or the Plan. Definitions used in this Agreement may elaborate on, but are not
intended to conflict with, such statutory or regulatory definitions, and in the event of any
such conflict, the statutory or regulatory definitions shall control:
4.1 “Adaptive Management” means a species and habitat management program
that combines data from monitoring species and natural systems with new information
from management and targeted studies to continually assess the effectiveness and adjust
conservation actions. Adaptive Management may include re-prioritizing monitoring
efforts, as indicated by monitoring results and the resultant degree of management required
for a given resource. The Adaptive Management program is generally designed to achieve
the objectives of providing corrective actions where: 1) resources are threatened by land
uses in and adjacent to the Preserve, 2) current management activities are not adequate or
effective, or 3) enforcement needs are identified.
4.2 “Additional Conservation Measures” means the conservation measures
beyond those provided by the Plan that are necessary to adequately protect species
proposed to be added to the Permits.
D-10
5
4.3 “Agreement” means the executed Implementing Agreement intended to
ensure implementation of the NCCP/HCP.
4.4 “Annual Report(s)” means the report(s) prepared pursuant to the
requirements of Section 9.33 of the Plan.
4.5 “Certificate of Inclusion” means a certificate issued by the CITY to a Third-
Party Participant to ensure compliance with the terms and conditions of the Plan and
Permits in accordance with the Plan and Section 9.6 of this Agreement under its jurisdiction
and control that extends the CITY’s Take coverage to such parties for Covered Activities
carried out in accordance with the Take Authorizations under the Permits and in accordance
with the terms and conditions thereof. (See Exhibit A of this Agreement).
4.6 “CDFW” means the California Department of Fish and Wildlife.
4.7 “CEQA” means the California Environmental Quality Act (the California
Public Resources Code §§ 21000 et seq.), and all rules, regulations, and guidelines
promulgated there under, as amended.
4.8 “CESA” means the California Endangered Species Act (California Fish and
Game Code §§ 2050 et seq.), and all rules, regulations, and guidelines promulgated there
under, as amended.
4.9 “Changed Circumstances” means, pursuant to 50 C.F.R. § 17.3, changes in
circumstances affecting a Covered Species or geographic area covered by the Permits that
can reasonably be anticipated by the Parties and that can be planned for i n the Plan or as
part of the Permit. Changed Circumstances and the planned responses to those
circumstances are integral requirements of the Plan and are identified in Section 6.9.2 of
the Plan. Changed Circumstances are not Unforeseen Circumstances.
4.10 “City Ordinance or Urgency Ordinance (City Interim Resource Protection
Ordinance)” means protections that the CITY shall adopt to codify and implement the
protections for the Covered Species contained in the Plan and Permit until the CITY’s new
regulations and ordinances set forth in Section 10.1.4 of this Agreement are adopted to
implement the Plan and Permits. At the time of Permit issuance, the CITY and Wildlife
Agencies will work together to determine whether an Ordinance or Urgency Ordinance
will be adopted by the CITY. The City Ordinance or Urgency Ordinance will be reviewed
and approved by the Wildlife Agencies before adoption by the CITY and will be similar to
the former City Interim Resource Protection Ordinance that was previously adopted by the
CITY (See Exhibit B of this Agreement). Incidental Take coverage will be extended to
third persons and entities under the jurisdiction and control of the CITY through permits
issued pursuant to the City Ordinance or Urgency Ordinance, as described in this
Agreement and in Section 6.3 of the Plan.
4.11 “Comprehensive Report” means a report prepared by PVPLC that will be
prepared every three (3) years and will include both a synthesis of all biological data
D-11
6
collected in the preceding three (3) years and an analysis of overall trends in biological
resources as described in Section 9.3.2 of the Plan. The Comprehensive Report will also
include the Annual Report.
4.12 “Conveyance or Conveyed” means to legally transfer land into biological
conservation status by means of fee title and conservation easement, or other method
deemed acceptable in advance in writing by the Wildlife Agencies, to ensure the permanent
protection of such lands for conservation purposes consistent with the Plan. If such
conveyance is to an entity other than CITY or PVPLC, such entity must also be approved
in advance in writing by the Wildlife Agencies.
4.13 “Covered Activities” means operation and maintenance and habitat
management activities undertaken by the CITY or PVPLC; public land development
undertaken by the CITY; and private land development undertaken by Third -Party
Participants under the jurisdiction and control of the CITY that obtain development permits
from the CITY consistent with Section 9.6 of this Agreement and as desc ribed in Section
5.0 and Tables 5-1 and 5-2 of the Plan and receive Incidental Take Authorization under the
section 10(a)(1)(B) Permit and NCCP Permit, provided these activities are otherwise
lawful.
4.14 “Covered Project” means a project included in the list of projects identified
in Sections 5.2 through 5.4 and Tables 5-1 and 5-2 of the Plan that are authorized to receive
Incidental Take coverage under the Permits.
4.15 “Covered Species” means those ten (10) species for which Incidental Take
Authorization is provided through the Permits issued in conjunction with this Agreement,
Plan, and Permits. These species are discussed in the Table 1-1 of the Plan and are included
in Exhibit C to this Agreement.
4.16 “Effective Date” means the date on which this Agreement takes effect. This
Agreement shall be effective upon issuance of the Permits.
4.17 “Endangered Species” means those species listed as endangered under the
ESA and/or CESA.
4.18 “ESA” means the Federal Endangered Species Act (16 U.S.C. §§ 1531
et seq.), as amended, including all rules and regulations promulgated thereunder,
as amended.
4.19 “Environmentally Sensitive Habitat Area” or “ESHA” means section 30240
of the California Coastal Act that requires: 1) Environmentally Sensitive Habitat Areas
shall be protected against any significant disruption of habitat values, and only uses
dependent on such resources shall be allowed within such areas, and 2) Development in
areas adjacent to Environmentally Sensitive Habitat Areas and parks and recreation areas
shall be sited and designed to prevent impacts which would significantly degrade such
areas, and shall be compatible with the continuance of such habitat areas.
D-12
7
4.20 “Existing Preserve Roads” means paved portions of Vanderlip Drive,
Narcissa Drive, and Beach School Trail that are located within the Preserve boundaries.
4.21 “Fiscal Report” means a report that will be prepared jointly by the City and
PVPLC and will be provided to the USFWS and CDFW yearly, as part of the Annual
Report, which will also be included in the Comprehensive Report. The Fiscal Report will
include the total expenditures made toward habitat acquisition to date and over the
preceding year. The Fiscal Report shall include an accounting of all funds received and
expended during the previous year to implement the Plan, including the amounts received
and expended on habitat acquisition, management, and monitoring.
4.22 “Fully Protected Species” means those species identified in California Fish
and Game Code sections 3511 sections 3511 (birds), 4700 (mammals), 5050 (reptiles and
amphibians), and 5515 (fish) or any successor statute.
4.23 “Habitat Conservation Plan” and “HCP” means the City of Rancho Palos
Verdes Natural Community Conservation Plan and Habitat Conservation a Plan
(NCCP/HCP) prepared by the CITY pursuant to section 10(a)(2)(A) of the ESA, (16 U.S.C.
§ 1539(a)(2)) and sections 2050, 2080, and 2800 et seq. of the Fish and Game Code.
4.24 “Habitat Restoration Plan” means a plan that will describe how to actively
establish native habitat in areas currently dominated by non-native habitat or on disturbed
lands, based on an initial three (3)-year Habitat Restoration Plan developed by the PVPLC
in coordination with the CITY and the Wildlife Agencies and approved by the Wildlife
Agencies as described in Section 7.5 of the Plan.
4.25 “Impact Avoidance/Minimization Measures” means the standard
enforceable conditions of approval that the CITY will impose on all Covered Projects and
Activities in the Plan Area to ensure implementation of the Plan in accordance with the
Permits, as set forth in Section 5.0 of the Plan.
4.26 “Incidental Take” means the taking of Covered Species that is incidental to,
and not the purpose of, the carrying out of an otherwise lawful activity.
4.27 “Major Amendment” means a proposed change to the Plan and/or this
Agreement, as described in Section 6.8.2 of the Plan and Section 18.2 of this Agreement
that will require an amendment to one or more of the Permits. Major amendments generally
include, but are not limited to, proposed modifications to the Plan that would result in
changes in the level of conservation provided for a Covered Species, higher levels of Take,
significant changes in reserve design, additions to or exclusions of lands from the Plan
Area, or greater or different impacts to the Covered Species and their habitats or to the
environment generally, than were analyzed in the NEPA and CEQA documents prepared
for the Plan. Major amendments must be processed in accordance with all applicable
Federal and State laws and regulations including ESA, CESA, NCCP Act, NEPA, and
CEQA.
D-13
8
4.28 “Minor Amendment” means a proposed minor modification to the Plan or
this Agreement, as described in Section 6.8.1 of the Plan and Section 18.1 of this
Agreement that is approved in writing by the Wildlife Agencies and does not require an
amendment to either of the Permits. Minor amendments include adjustments to the
Preserve boundaries (Preserve Boundary Adjustments) that are approved by the Wildlife
Agencies based on a finding that the adjustment will result in equal or higher biological
value to the Preserve. Minor amendments generally include small changes to the
NCCP/HCP that do not result in: 1) coverage for new activities or in 2) impacts to the
Covered Species or their habitats, including a higher level of Take, or to the environment
generally, that are different from or greater than those impacts analyzed in the NEPA and
CEQA documents prepared for the NCCP/HCP. A Minor Amendment does not require an
amendment to the Take Authorizations.
4.29 “Mitigation Fee” means the fee adopted by the CITY to fund the Habitat
Restoration Fund for conveyance and permanent management of land within the Plan Area.
The fee is described in Sections 5.1, 5.3.4, and 8.2.1.1 of the Plan.
4.30 “NCCP Act” means the California Natural Community Conservation
Planning Act of 1991, enacted by Chapter 765 of the California statutes of 1991 (A.B.
2172; codified in part at California Fish and Game Code §§ 2800, et seq.), as amended,
including all rules and regulations promulgated thereunder, as amended.
4.31 “NCCP/HCP” or “Plan” means the City of Rancho Palos Verdes Natural
Community Conservation Plan and Habitat Conservation Plan (NCCP/HCP), conservation
analysis, and related maps/appendices.
4.32 “NCCP Permit” or “State Permit” means the authorization issued in
accordance with this Plan and Agreement by CDFW under section 2835 of the NCCP Act
to authorize the Incidental Take of a Covered Species, including Covered Species that are
listed under CESA as threatened or endangered, and Covered Species that are candidates
for listing, or that are Non-Listed species (e.g., species of special concern).
4.33 “Natural Community Conservation Plan, or NCCP” means a plan
developed in accordance with the State’s NCCP Act California Fish and Game Code
(section 2800, et seq.), which provides comprehensive management and conservation of
multiple wildlife and plant species, and which identifies and provides for the regional or
area-wide protection and conservation of natural wildlife diversity through preservation of
sufficient habitat in an appropriate configuration that enables species to persist, while
allowing compatible and appropriate development and growth.
4.34 “NEPA” means the National Environmental Policy Act (42 U.S.C. § 4321-
d 4335) as amended, and all rules and regulations promulgated thereunder, as amended.
For the purposes of the Plan and Federal Permit, the USFWS is the lead agency under
NEPA as defined in 40 C.F.R. § 1508.16.
D-14
9
4.35 “Neutral Lands” means lands on private property that have one of the
following three conditions: 1) extreme slopes (35 percent or greater slope - Open Space
Hillside), 2) are zoned Open Space Hazard, or 3) contain deed restricted open space (e.g.,
Home Owner Association lots). Neutral Lands are currently undevelopable lands located
outside of the Preserve, and therefore are not subject to the restrictions that apply to
properties within the Preserve, but add biological function (e.g., facilitate wi ldlife
movement) and value to the Preserve.
4.36 “No Surprises Rule” means the rule promulgated by USFWS and currently
codified at 50 C.F.R. §§ 17.22(b)(5) and 17.32(b)(5) that extends certain assurances
regarding future mitigation obligations to permittees obtaining Incidental Take Permits
under section 10(a) of the Federal ESA.
4.37 “Non-Listed Covered Species” means a species that is not listed under ESA
and/or CESA, but is included as a Covered Species under the Permits.
4.38 “NPPA” means the Native Plant Protection Act (California Public
Resources Code §§ 1900 et seq.), including all regulations promulgated thereunder,
as amended.
4.39 “Party” and “Parties” mean the signatories to this Agreement, namely the
USFWS, CDFW, the City of Rancho Palos Verdes, and PVPLC.
4.40 “Permits” means the Federal Permit issued pursuant to section 10(a)(1)(B)
of the ESA and the “Take Authorization” (State Permit) issued pursuant to section 2835 of
the State NCCP Act.
4.41 “Permittees” means the CITY and PVPLC.
4.42 “Plan Area” means the boundaries of the City of Rancho Palos Verdes
NCCP/HCP, consisting of approximately 8,616.5 acres within the CITY’s municipal
boundaries, Los Angeles County, California, as depicted in Figure 2-1 of the NCCP/HCP.
4.43 “Preserve” means lands in the Plan Area that will be conserved and
managed to meet the species and habitat requirements of the Plan and Per mits, including
lands dedicated as Previous Mitigation that are either currently protected through
conservation easements held by the PVPLC and/or CDFW; CITY mitigation lands that will
be conveyed and added to the Preserve during the Permit term; and lands that were acquired
using State and Federal funding. Assembly of the Preserve is described in Section 4.0 of
the Plan and in Section 6.1 of this Agreement. Lands in the Preserve will be subject to
habitat management and restoration actions described in Sections 7.0 and 9.0 of the Plan.
In addition, all lands in the Preserve will have a cons ervation easement recorded in favor
of PVPLC for CITY-owned lands and in favor of the CITY for PVPLC -owned lands. In
order to facilitate management, the Preserve has been divided into 12 geographical
management units referred to as “Reserve Areas” as shown in Figure 4-4 of the Plan.
D-15
10
4.44 “Preserve Access Protocol” or “PAP” means the plan that will be developed
by the CITY and its Preserve Habitat Manager within ninety (90) days of issuance of the
Permits to facilitate access by authorized vehiclesutility agencies and the CITY’s Public
Works Department to areas within the Preserve and must be approved by the Wildlife
Agencies. The PAPreserve access protocol will contain measures, including the Habitat
Impact Avoidance and Minimization Measures for Covered Project and Activities and
Avoidance and Minimization Measures for Covered Species provided in Section 5.5 and
Section 5.6 of the Plan, respectively, to avoid and minimize, to the maximum extent
possible, environmental damage, including direct and indirect impacts to habitat and
Covered Species. Until the PAP is approved by the Wildlife Agencies, the CITY and
PVPLC shall ensure all access to the Preserve is consistent with the minimization measures
described in Sections 5.5 and 5.6 of the Plan.
4.45 “Preserve Boundary Adjustment” means a change in the boundaries of the
Preserve specified under the Plan, as described in Section 6.8.1 of the Plan and Section
21.1 of this Agreement that has been approved by the Wildlife Agencies upon their
determination that the adjustment will result in equal or higher biological value to the
Preserve. This would be considered a type of Minor Amendment to the Plan.
4.46 “Preserve Habitat Manager” means the PVPLC, the CITY’s designated
Preserve Habitat Manager for the Plan and the entity responsible for overseeing the habitat
management activities within the Preserve pursuant to the Palos Verdes Nature Preserve
Management Agreement with the CITY (See Exhibit D of this Agreement) and as
described in Section 9.0 of the Plan, including, but not limited to management of natural
resources, restoration of habitat, reporting, and enforcement of the conservation easement.
4.47 “Preserve Habitat Management Plan” or PHMP means the Preserve
Habitat Management Plan developed for the Permits as described in Sections 9.3 of the
Plan. The PHMP consists of the following four plans: 1) Initial Management and
Monitoring Plan, 2) Predator Control Plan, 3) Habitat Restoration Plan, and 4) Targeted
Exotic Removal Plan for Plants (TERPP).
4.48 “Public Lands” means land owned by the City of Rancho Palos Verdes, as
depicted in Figure 4-2 of the Plan.
4.49 “Public Use Master Plan” or “PUMP” means the CITY’s Public Use
Master Plan that describes public access within the Preserve. The CITY’s PUMP covers
the CITY’s Conceptual Trails Plan, including the Preserve Trails Plan component. The
PUMP is a CITY Covered Project/Activity under the Plan as described in Sections 5.2.8,
5.4, and 9.2.2 of the Plan. Public uses and activities in the PUMP are considered
conditionally compatible uses under the NCCP/HCP.
4.50 “PVPLC” means the Palos Verdes Peninsula Land Conservancy which will
contribute lands and act as the CITY’s designated habitat manager to the “Preserve” in
accordance with the Plan and this Agreement. PVPLC is a certified 501(c)(3) nonprofit
corporation and conservation organization that has been actively working to “preserve land
D-16
11
and restore habitat on the Palos Verdes Peninsula” since 1988. The CITY and PVPLC have
entered into a separate Palos Verdes Nature Preserve Management Agreement
(Management Agreement) that will allow PVPLC to act as the CITY’s designated
NCCP/HCP Preserve Habitat Manager, which is included as Exhibit D to this Agreement.
PVPLC is also a Permittee under the NCCP/HCP for take authorization related to
implementation of specified biological management and monitoring activities as agreed to
by the CITY and PVPLC under the Management Agreement and this Plan (See Section 8.1
of the Plan).
4.51 “Rare” means a species (plant or animal) existing in such small numbers
throughout all or a significant portion of its range that it may become endangered or
threatened (as defined by CESA or ESA) if its environment worsens.
4.52 “Section 4(d) Special Rule” means the special rule for the coastal California
gnatcatcher, published by the USFWS on December 10, 1993 (58 F.R. 65088) and codified
at 50 C.F.R. § 17.41 (b), which defines the conditions under which Incidental Take of the
species is considered lawful under the ESA. Under the 4(d) rule, Incidental Take of the
coastal California gnatcatcher is not considered a violation of the Take prohibition under
section 9 of the ESA if such Take occurs within a jurisdiction that is enrolled in and actively
engaged in preparing an NCCP under the State of California’s NCCP Act of 1991 and
results from activities conducted in accordance with the NCCP Conservation and Process
Guidelines; or such Take results from activities conducted in accordance with an NCCP
Plan that has been prepared, approved and implemented in accordance with the NCCP Act
and the NCCP Conservation and Process Guidelines and approved by USFWS through
issuance of written concurrence that the NCCP Plan meets the standards for issuance of an
Incidental Take permit under 50 C.F.R. § 17.32(b).
4.53 “Section 7 Consultation” means the process under section 7 of the ESA,
16 U.S.C. §§ 1531, 1536(a)(2), wherein Federal agencies must consult with the National
Marine Fisheries Service (NMFS) for marine and anadromous species, or the USFWS for
freshwater species and terrestrial wildlife, if they are proposing an “action” that may affect
listed species or their designated critical habitat. “Action” is defined broadly to include
funding, permitting, and other regulatory actions and extends to local government projects
that require a Federal permit or receive Federal funding. See 50 C.F.R. § 402.02.
4.54 “Section 10(a) Permit or Federal Permit” means the permit issued by the
USFWS to the CITY and PVPLC under section 10(a)(l)(B) of the ESA pursuant to 16
U.S.C. § 1539(a), authorizing the Incidental Take of Covered animal Species.
4.55 “Species of Special Concern (SSC)” means a species, subspecies, or
distinct population of an animal native to California that is not currently listed and does not
currently warrant listing under CESA or but may in the future warrant listing under the
statute.
4.56 “Take” and “Taking” shall have the meanings provided by the Federal and
Fish and Game Code, section 86 and shall apply to both listed and Non-Listed Covered
D-17
12
Species in the Plan. Loss of Covered plant species that occurs under the Federal Permit
shall be considered Take for purposes of assessing any outstanding mitigation owed on
account of Take of Covered Species during the term of the Federal Permit under 50 C.F.R.
§§ 17.22(b)(7) and 17.32(b)(7).
4.57 “Take Authorization” means the authorization to incidentally take the
Covered Species under the Federal section 10(a)(1)(B) Incidental Take Permit or pursuant
to section 2835 of the State NCCP Act.
4.58 “Targeted Exotic Removal Plan for Plants” or “TERPP” means a key
component of the PHMP and Adaptive Management program to control for invasive
species in the Preserve as described in Sections 6.10.2.5, 7.6, and 9.0 of the Plan.
4.59 “Targeted Lands” means Federal and private properties shown in Figure 4-1
of the Plan that contain natural vegetation and provide biological value to Covered Species
and other wildlife. These areas could benefit from habitat stewardship and the private
properties may be formally dedicated to the Preserve with conservation easements and
committed habitat management as described in Sections 7.0 and 9.0 of the Plan.
4.60 “Third-Party Participants” means third-parties under the jurisdiction and
where the CITY has land use control that receive Take Authorization for Covered Projects
and Activities under the Plan through the CITY local development review/approval process
or receives a Certificate of Inclusion to ensure compliance with the terms and conditions
of the Plan and Permits in accordance with the Plan and Section 9.6 of this Agreement.
Third-Party Participants specifically include landowners and public and private entities
undertaking land development Covered Activities in conformance with an approval
granted by the CITY in compliance with the Plan, Permits, and this Agreement.
4.61 “Threatened Species” means those species listed as threatened under the
ESA and/or CESA.
4.62 “Trump National/Ocean Trails HCP” means the existing Habitat
Conservation Plan (Trump National/Ocean Trails HCP, PRT-799348), which is covered
by an incidental take permit issued by the USFWS in 1997 to address potential impacts of
golf course construction and operation to eight species that were covered under the HCP,
including the coastal California gnatcatcher and coastal cactus wren, and subsequently
amended in 2001 to include the Palos Verdes blue butterfly (TE-032423-1, TE-037483-0).
The Trump National/Ocean Trails is described in Section 4.2.1 of the Plan, and its
associated conservation area is included within the Plan Area and CITY’s Preserve.
4.63 “Unforeseen Circumstances” means, pursuant to 50 C.F.R. § 17.3 changes
in circumstances affecting a species or geographic area covered by the Plan that could not
reasonably have been anticipated by the CITY or Wildlife Agencies, at the time of th e
Plan’s development, and that result in a substantial and adverse change in the status of a
Covered Species as described in Section 6.10 of the Plan and Section 10.3 of
this Agreement.
D-18
13
4.64 “USFWS” means the United States Fish and Wildlife Service, an agency of
the United States Department of the Interior.
4.65 “Wildlife Agencies” means USFWS and CDFW, collectively.
5.0 FINDINGS BY THE USFWS AND CDFW
5.1 USFWS. The USFWS has issued Findings, following opportunity for
public comment, which conclude that: 1) the taking of Covered Species within the Permit
Area in accordance with the Plan as implemented will be incidental to the carrying out of
otherwise lawful activities; 2) the Plan as implemented will, to the maximum extent
practicable, minimize and mitigate the impacts of such incidental taking; 3) the funding
sources identified and provided for herein will ensure that adequate funding for the Plan
will be provided; 4) the requested taking of Covered Species will not appreciably reduce
the likelihood of survival and recovery of such species in the wild or result in the
destruction or adverse modification of Critical Habitat; and 5) the Plan, as implemented,
will satisfy and fulfill all measures agreed upon by the Parties for the purposes of the Plan.
5.2 CDFW. As further described in the NCCP Permit and findings issued by
CDFW pursuant to the NCCP Act, the CDFW has found, following opportunity for public
comment, that the Plan and this Agreement: 1) adequately provide for the conservation and
management of the Covered Species and their habitat within the Plan; 2) satisfy all legal
requirements under the NCCP Act necessary for CDFW to issue an NCCP Permit for such
species; and 3) meet all other requirements of the NCCP Act for an NCCP as set out in
Fish and Game Code section 2830.
CDFW has found further that the Plan and this Agreement adequately provide for the
mitigation of potential “significant effects on the environment,” as defined in California
Public Resources Code section 21068 that may result to Covered Species and their habitat
from the Covered Projects and Activities authorized by the Plan and the NCCP Permit.
6.0 NATURAL COMMUNITY CONSERVATION PLAN/HABITAT
CONSERVATION PLAN
Pursuant to section 10(a)(2)(A) of the ESA (16 U.S.C. § l539(a)(2)(A)) and section 2800
et seq. of the Fish and Game Code (NCCP Act of 2003, as amended), the CITY has
prepared a Natural Community Conservation Plan/Habitat Conservation Plan known as the
“NCCP/HCP” or “Plan” and submitted it in support of obtaining state and Federal Permits.
The NCCP/HCP qualifies as an NCCP under the NCCP Act. The Plan provides a program
of conservation for the Covered Species and protection of their natural communities and
habitats in perpetuity through land use regulation, acquisition, and management. The CITY
has submitted the NCCP/HCP to the USFWS and the CDFW, and the CITY has requested
that the USFWS issue a section 10(a)(1)(B) Incidental Take Permit and that the CDFW
issue NCCP authorization pursuant to section 2835 of the Fish and Game Code, within the
Plan Area to allow the Incidental Take of those Covered Species determined by the
D-19
14
Wildlife Agencies to be adequately conserved by the Plan in accordance with this
Agreement. The Plan proposes a comprehensive, long-term conservation and mitigation
program for the Covered Species and their habitats. The CITY has also requested that the
USFWS acknowledge that the Plan satisfies the conditions under the section 4(d) Special
Rule to allow the Incidental Take of the coastal California gnatcatcher and its coastal sage
scrub habitat associated with otherwise lawful activities within the Plan Area.
7.0 RESERVE DESIGN AND CONSERVATION STRATEGY
The Plan describes the reserve design and conservation strategy. The reserve design is
intended and expected to preserve the biodiversity of the Plan Area. The Plan includes
specific and measurable biological goals and objectives and identifies conservation
measures designed to conserve Covered Species and the natural communities upon which
they depend. The CITY’s primary conservation strategy is to dedicate a total of 1,402.4 acres
of habitat for the NCCP/HCP Preserve assembly. The dedication includes Existing Public
Lands that are currently owned by the C ITY (1,123 acres) and the PVPLC (20.7 acres).
The remainder of the Preserve will be comprised of 258.7 acres of C ITY-owned land or
land that will eventually be owned by the C ITY which has been previously dedicated for
conservation as mitigation for certain private projects and will be added to the Preserve.
Of the 1,123 acres of Existing Public Lands, 61.5 acres were acquired in association with
a grant to the State of California through the USFWS’s Section 6 Habitat Conservation
Plan Land Acquisition Program, 263.5 acres were obtained by the CITY, and 798 acres of
land in Portuguese Bend, Agua Amarga, Upper Filiorum, and Forrestal were purchased for
conservation in support the NCCP/HCP. The 798 acres were acquired with funds provided
by the CITY, PVPLC, California Coastal Conservancy, Wildlife Conservation Board, City
of Rolling Hills, County of Los Angeles, and California State Dominquez Hills.
Specifically, the 499.9 of the 798 acres were purchased using non-state funding or are being
dedicated directly by the CITY. Thus, the CITY is contributing a total of 499.9 acres to
mitigate for all Covered CITY Projects and Activities. (Hereinafter, these 499.9 acres of
additional lands dedicated by the CITY will be referred to as “CITY Mitigation Lands”).
The CITY and PVPLC will be responsible for the management of the entire 1,402.4-acre
Preserve. Lands dedicated to the Preserve by the CITY will be encumbered by a
conservation easement held by the PVPLC with the Wildlife Agencies named as third-
party beneficiaries. The proposed Preserve was designed to be consistent with NCCP
standards and guidelines and the issuance criteria for ESA section 10(a) for species covered
by the Permits. The Preserve conserves regionally important habitat areas and provides
adequate habitat linkages between patches of conserved habitat.
7.1 Existing Public Lands to be Dedicated to the Preserve. The Existing
Public Lands that are currently owned by the CITY (1,123 acres) or the PVPLC (20.7 acres)
will be dedicated to the Preserve and perpetually managed by the PVPLC. The remainder
of the Preserve will be comprised of 258.7 acres of CITY-owned land, or land that will
eventually be owned by the CITY which has been previously dedicated for conservation
as mitigation for certain private projects, will also be dedicated to the Preserve.
Management of these previously conserved or dedicated lands is dictated by pre-existing
D-20
15
permits and/or agreements. All of the lands to be dedicated to the Preserve are identified
in Table 4-1 and Figure 4-2 of the Plan and described below. Within ninety (90) days after
Permit issuance, each property listed in Section 4.2 in the Plan will be considered formally
dedicated to the Preserve when a conservation easement, in a form consistent with Exhibit
E of this Agreement, in favor of PVPLC or the CITY for property owned by the PVPLC
and approved by the Wildlife Agencies, and which names the Wildlife Agencies as third-
party beneficiaries, is recorded on the property. When the land is formally dedicated to the
Preserve, the lands will be managed according to this NCCP/HCP. Once the 1,123 acres of
CITY lands have been dedicated to the Preserve and are being managed for conservation
purposes, including the management obligation during the Permit term, the CITY will have
fulfilled its Preserve assembly and mitigation obligations for the impacts of all of the CITY
Covered Projects and Activities described in Section 5.0 of the Plan. Obligations regarding
conservation for these mitigation lands include perpetual monitoring as identified in Section
8.2.1.1 of the Plan. The 1,143.7 acres of Existing Public Land that are currently owned by
the CITY or PVPLC that are managed in perpetuity will contribute to the Preserve
assembly.
7.2 Other Private and Public Targeted Lands for Dedication to the
Preserve. A total of 170.9 acres of publicly and privately owned properties have been
identified as Targeted Lands for possible future dedication to the Preserve. Adding the
Targeted Lands properties to the Preserve will require approval from the underlying fee
owner, the recordation of acceptable conservation easements (except for properties in
Federal ownership), and available funding for active habitat management by the PVPLC.
A memorandum of understanding will be sought by the CITY and PVPLC for management
of Targeted Lands under Federal ownership.
7.3 Neutral Lands. Although not a part of the Preserve, Neutral Lands are
currently undevelopable lands that add biological function (e.g., facilitate wildlife
movement) and value to the Preserve. Approximately 1,696.7 acres of “Neutral Lands”
exist outside the Preserve boundary (See Section 4.5 and Figure 4-175 of the Plan). Neutral
Lands contain 670.9 acres of natural vegetation, of which 430.2 acres is coastal sage scrub
habitat. The Neutral Lands designation has been applied to privately owned properties in
the CITY that contain development constraints due to existing CITY zoning code or other
restrictions. The Neutral Lands designation is noted in the NCCP/HCP because these
properties will likely remain as open space, thus contributing to the function of the
Preserve. Neutral Lands are not included in the Preserve and therefore are not subject to
the restrictions that apply to properties within the Preserve. The Neutral Lands are mapped
solely to provide an estimation of their area and location relative to the actual Preserve.
PVPLC and the CITY will work to obtain conservation easements over some of these lands
and add as many of these parcels to the Preserve as is possible. These Neutral Lands can
be placed into the following three categories: Extreme Slopes on Private Property (Open
Space Hillside), Lands Zoned Open Space Hazard, and Deed-Restricted Lands.
7.4 Conservation Easements. The NCCP/HCP identifies habitat to be
conserved through acquisition and recordation of conservation easements. Lands dedicated
to the Preserve by the CITY will be encumbered by a conservation easement held by the
D-21
16
PVPLC with the Wildlife Agencies named as third-party beneficiaries in the same form as
the attached Exhibit E. Lands dedicated to the Preserve by the PVPLC will be encumbered
by a conservation easement held by the CITY with the Wildlife Agencies named as third -
party beneficiaries. The terms of all conservation easements must be approved in writing
by the Wildlife Agencies. All conservation easements shall be recorded in perpetuity
pursuant to Civil Code section 815 et seq. and shall be subject to the Plan.
7.5 Habitat Restoration/Enhancement Potential. A significant portion of the
undeveloped lands within the Plan Area support non-native plant communities. As a
requirement of the Plan, PVPLC will restore a minimum of 5 acres of native habitat, or a
total of 15 acres every three (3) years if exigencies prevent restoration of 5 acres each year.
The native habitat will be restored in areas currently dominated by non-native habitat or on
disturbed lands as described in Section 7.5 of the Plan. A total of 250 acres of restoration
are anticipated over the Permit term. As funding becomes available, these communities
will be restored to native plant communities to increase the local habitat carrying capacity
of Covered Species. Areas that can be restored to native scrub habitats include non-native
grassland and disturbed vegetation communities, disturbed areas, and previously
developed areas within the Preserve. The CITY and PVPLC are committed to additional
enhancement of the Preserve with a long-term habitat restoration plan as detailed in Section
7.5 of the Plan and the Targeted Exotic Removal Plan for Plants (TERPP) (Section 7.6 of
the Plan). Additional restoration work, not required under the Plan, may occur as additional
grant funds or mitigation funds become available from projects outside of the Plan Area.
Over the term of this NCCP/HCP, the amount of sage scrub habitats within the Preserve
could exceed the current inventory of coastal sage scrub within the Plan Area. The priority
for restoration will be to enlarge existing patches of coastal sage scrub in the larger blocks
of conserved lands within the Preserve that support or have the potential to support Covered
Species and enhance linkages between large blocks of habitat to improve linkage function.
This restoration program will provide the opportunity to expand or create new populations
of Covered Species by providing new suitable habitat for Covered Species.
8.0 COVERED PROJECTS AND ACTIVITIES
The NCCP/HCP assumes incidental take coverage for seventeen (17) CITY
Projects/Activities (Section 5.2 of the Plan), five (5) Covered Private Projects/Activities
(Section 5.3 of the Plan), and Other Covered Activities in the Preserve (Section 5.4 of the
Plan), provided that the Covered Projects and Activities are consistent with the habitat and
species conservation goals and requirements found in Sections 4.0, 5.0, and 7.0 of the Plan,
including Tables 4-1 and 4-2 of the Plan, and the applicable impact limits and Habitat
Impact Avoidance and Minimization Measures described in Section 5.5 of the NCCP/HCP
and Avoidance and Minimization Measures for Covered Species described in Section 5.6
of the NCCP/HCP as part of all CITY approvals, operations, and authorizations to precede
work, where applicable. Any potential impacts to properties within the Plan Area that were
previously acquired with nontraditional section 6 HCP Land Acquisition grant funding will
be subject to review and approval by the Wildlife Agencies to confirm consistency with
the section 6 grant. All Covered Projects and Activities will be reviewed by the CITY to
ensure their consistency with the NCCP/HCP. As they are proposed, the Covered Projects
D-22
17
and Activities will be forwarded to and may be reviewed by the Wildlife Agencies during
the applicable CEQA (or other) process for consistency with this NCCP/HCP.
8.1 Covered CITY Projects and Activities. Covered CITY
Projects/Activities (Section 5.2 of the Plan) are listed in Table 5-1 and Figure 5-2 of the
NCCP/HCP. The CITY mitigation lands described in Section 4.2 and Tabl e 4-1 (Public
and Private Lands Contributed to the Preserve) of the Plan will be encumbered by
conservation easements which are to be recorded on CITY-owned properties within the
Preserve pursuant to Section 4.2 of the Plan and Section 7.1 of this Agreement. All
mitigation for CITY Covered Projects/Activities will occur within the Preserve.
The Covered City Projects/Activities are proposed to occur inside and outside of the
Preserve and are anticipated to permanently impact a maximum of 303.7 acres of non-
native grassland and 115.8 acres of CSS. Within the Preserve, there are 737.0 acres of CSS,
and no more than 60.0 acres will be impacted in the Preserve leaving a minimum of 677.0
acres within the Preserve. Southern cactus scrub, saltbush scrub, and coastal bluff scrub
are subsets of CSS, and no more than 5 acres of southern cactus scrub, 2 acres of coastal
bluff scrub, and 2 acres of saltbush scrub could be lost within the Preserve associated with
Covered CITY Projects/Activities. Of the 470.9 acres of grassland within the Preserve, a
maximum of 148.3 acres could be impacted by Covered CITY Projects/Activities within
the Preserve, leaving a minimum of 322.6 acres. The CITY will mitigate these impacts by
dedicating CITY land to the Preserve and providing restoration and management funding
for the Preserve as detailed in Section 8.0 of the Plan. Through Plan implementation non-
native grassland within the Preserve may be restored to native habitat. Impacts to specific
vegetation communities within and outside of the Preserve are described in individual
project descriptions (Section 5.2 of the Plan).
8.2 Covered Private Projects and Activities. The Covered Private Projects
and Activities are proposed to occur outside of the Preserve and are anticipated to impact
a maximum of 262.8 acres of grassland and 99.5 acres of coastal sage scrub. These impacts
will be mitigated by each project proponent. Impacts to specific vegetation communities
and associated mitigation are described in individual project descriptions (Section 5.3 of
the Plan and Table 5-2 of the Plan). Mitigation for certain Covered Project Projects (Section
5.3.2 of the Plan) is addressed, in part, by the CITY conveying and managing 1,123 acres
to the Preserve. Payment of a Mitigation Fee into the CITY’s Habitat Restoration Fund by
private projects is included in the NCCP/HCP as method for the C ITY to recoup some of
the costs to fund the Plan (Section 14.2.1 of the Plan).
8.3 Other Covered Activities. The Other Covered Activities described in
Section 5.4 of the Plan are expected to occur in the Preserve and these activities are not
expected to involve the permanent loss of habitat. due to short- and long-term operation
and maintenance requirements conducted by the CITY, other publi c agencies, or utility
companies seeking Third-Party Participant status, or emergency situations. These activities
are not expected to involve the permanent loss of habitat. All of the Other Covered
Activities listed in Section 5.4 of the Plan may not occur without first notifying the CITY.
Any activity not identified in Section 5.4 of the Plan may not be initiated in the Preserve
D-23
18
without concurrence from the Wildlife Agencies and notification to the PVPLC. The
Covered Activities described in Section 5.4 of the Plan shall adhere to the habitat and
species conservation goals and requirements found in Sections 4.0 and 7.0 of the Plan,
including Tables 4-1 and 4-2 of the Plan, and the applicable impact limits and Habitat
Impact Avoidance and Minimization Measures for Covered Projects and Activities and
Avoidance and Minimization Measures for Covered Species described in Section 5.5 and
Section 5.6 of the NCCP/HCP, respectively as part of all CITY approvals, operations, and
authorizations to precede work, where applicable. All Other Covered Projects and
Activities occurring in the Preserve must be consistent with the terms of the applicable
easements.
8.3.1 Operation and Maintenance. Operation and Maintenance activities
described in Section 5.4.1 of the Plan are Covered Activities that are expected to occur in
the Preserve due to short- and long-term operation and maintenance requirements or
emergency situations conducted by the C ITY, other public agencies, or utility companies
seeking Third-Party Participant status. All of these listed in Section 5.4.1 of the Plan may
not occur without first notifying the CITY. Any activity not identified below as a Covered
Activity may not be initiated in the Preserve without prior notification to the PVPLC and
concurrence from the Wildlife Agencies. These activities include: 1) Landslide abatement
and monitoring activities that do not result in the loss of Covered Species and/or habitat.
The regular maintenance and repair of existing drainage facilities, Existing Preserve Roads,
and trails that accommodate authorized vehicles within the Preserve that do not result in
the loss of Covered Species and/or habitat; 2) The maintenance of Existing Preserve Roads
and trails that accommodate authorized vehicles in the Preserve provided there is no loss
of Covered Species and/or their habitat; 3) Geologic testing and monitoring for public
health and safety reasons, provided there is no loss of Covered Species and/or their habitat;
4) Installation, maintenance, and repair of utilities and related infrastructure(s) that are
necessary to serve the Covered Private Projects identified in Section 5.2 of the Plan
provided there is no loss of Covered Species and/or their habitat; 5) Maintenance and repair
of utilities and related infrastructure(s) provided there is no loss of Covered Species and/or
their habitat; 6) The maintenance and repair of existing water quality basins, retention
basins, detention basins, and debris basins, provided there is no loss of Covered Species
and/or their habitat; 7) Photography and filming, provided a C ITY permit is obtained, no
grading is involved, no new access road or trails are created, and impacts to provided there
is no loss of Covered Species and/or their habitat are avoided; and 8) City and Los Angeles
County law enforcement activities, including authorized vehicular access. All Operation
and Maintenance activities described in Section 5.4.1 occurring in the Preserve must be
consistent with the terms of the applicable conservation easement.
8.3.2 Public Use. Public access to the Preserve is conditionally allowed
for passive recreational purposes and to promote understanding and appreciation of natural
resources under the NCCP/HCP and must be consistent with the protection and
enhancement of biological resources set forth in the Plan. Excessive or uncontrolled access,
however, can result in habitat degradation through trampling and erosion (e.g., along trails)
and disruption of breeding and other critical wildlife functions at certain times of the year.
In order to balance the public’s passive recreational needs with the protection of natural
D-24
19
resources within the Preserve, a Public Use Master Plan (PUMP) has been developed
jointly by the CITY, the public, and PVPLC to address public access issues and adopted
by the CITY Council on April 2, 2013. The PUMP is a proposed CITY-Covered
Project/Activity incorporated into the Plan; therefore, it must be approved by the Wildlife
Agencies as part of the NCCP/HCP before the activities, including the Preserve Trails
Plans, will be allowed. Section 5.4.2 of the Plan identifies public uses and activities, which
conform to the PUMP, and are considered conditionally Covered Activities in the Preserve
under the Plan. All Other Covered Activities occurring in the Preserve must be consistent
with the terms of the applicable conservation easements.
8.3.3 Preserve Management. Management of the Preserve in accordance
with the provisions described in Sections 7.0 and 9.0 of the Plan is a Covered Activity.
Specific management of Covered Activities anticipated to occur in the Preserve include:
1) Monitoring of Covered Species; 2) Vehicular access; 3) Habitat restoration; 4) Invasive
species control; 5) Predator control; 6) Reintroduction of Covered Species; 7) Photo
documentation; 8) Installation of signage; 9) Trail maintenance; 10) Maintenance of
fire/fuel buffers; and 11) Field research and studies designed to contribute to the long-term
protection of habitats and species and other basic research of habitats and species included
in the Preserve.
8.4 Habitat Impact Avoidance and Minimization Measures for Covered
Projects and Activities. The Plan includes measures to avoid and minimize Take of
Covered Species and to conserve natural communities and Covered Species. The CITY
shall coordinate with PVPLC to ensure that Habitat Impact Avoidance and Minimization
Measures listed in Section 5.5 of the Plan are implemented as enforceable conditions in the
Permits, operations, and authorizations to proceed with the Covered Projects and Activities
listed in Sections 5.2 through 5.4 of the Plan.
8.5 Avoidance and Minimization Measures for Covered Species. The Plan
includes measures to avoid and minimize Take of Covered Species and to conserve natural
communities and Covered Species. The CITY shall coordinate with PVPLC to ensure that
Avoidance and Minimization Measures for Covered Species listed in Section 5.6 of the
Plan are implemented as enforceable conditions in all Permits, operations, and
authorizations to proceed with the Covered Projects and Activities listed in Sections 5.2
through 5.4 of this Plan. Species-specific conservation measures for Covered Species are
described in detail in Appendix B of the Plan and summarized in the NCCP/HCP.
8.6 Restrictions and Requirements for Projects/Activities Abutting and
Adjacent to the Preserve. The Plan includes measures to address Project and Activities
that are abutting or adjacent to the Preserve. The CITY shall ensure that the restrictions
and requirements listed in Section 5.7 of the Plan (e.g., fencing, lighting, equestrian,
landscaping, stormwater, and urban runoff) and this section of the Agreement are
implemented as enforceable conditions in all Permits, operations, and authorizations to
proceed for Covered Projects and Activities that abut or are adjacent to the Preserve.
D-25
20
9.0 TAKE AUTHORIZATIONS
Issuance of the Federal and State Permits signifies that the Plan fulfills the requirements
under the ESA and NCCP Act needed for the Wildlife Agencies to authorize the Take of
Covered Species caused by the Covered Projects and Covered Activities.
9.1 Take Authorizations for Permittee. Concurrent with execution of this
Agreement, the USFWS will issue a Federal Permit under section 10(a)(1)(B) of the ESA
that authorizes the incidental Take of Covered Species (animal) resulting from Covered
Projects and Covered Activities, and CDFW will issue an NCCP Permit under section 2835
of the California Fish and Game Code that authorizes the Take of Covered Species
resulting from Covered Projects and Covered Activities.
Authorized Take covers the Permittees and Third-Party Participants under the direct
control and jurisdiction of the Permittees, including all of its respective officers, directors,
employees, agents, subsidiaries, member agencies, and contractors, as applicable, who
engage in any Covered Project or Covered Activity and implementation of the Plan.
9.2 Timing of Take Authorizations. As of the Effective Date, and concurrent
with the adoption of the City Ordinance or Urgency Ordinance, the Permittees may Take
Covered Species during implementation of Covered Projects and Activities in the Plan
Area, as further authorized by and subject to the conditions of this Agreement, the Plan,
and the Permits.
9.3 Take Authorizations for Non-Listed Covered Species
9.3.1 ESA Section 10. Covered Species that are not listed on the Effective
Date as endangered or threatened under the ESA have been treated in the Plan as if they
are Listed Species. In the event a Non-Listed Species becomes a Federally Listed Species
in the future, incidental Take of that species will, without any further action on the part of
the Permittees, be immediately authorized pursuant to the terms of the Plan, the Federal
Permits, and this Agreement.
9.3.2 NCCP Act. Take of all Covered Species, regardless of whether they
are State Listed Species, is authorized under the NCCP Act Permit as of the Effective Date.
9.4 No Take Authorization for Fully Protected Species. No Fully Protected
Species are included in the list of Covered Species; therefore, Take of these species is not
authorized in the NCCP Permit. The following species may occur within the Plan Area and
are fully protected under the California Fish and Game Code with no take authorized under
this Plan: 1) California brown pelican (Pelecanus occidentalis); 2) American peregrine
falcon (Falco peregrinus anatum); 3) white-tailed kite (Elanus leucurus); 4) golden Eagle
(Aquila chrysaetos); 5) California least tern (Sterna albifrons browni); and 6) bald eagle
(Haliaeetus leucocephalus). CDFW and the CITY acknowledge and agree that the Plan
affords no take of Fully Protected Species, and that the measures set forth in the Plan, even
if they are fully complied with, can result in the Take of these species. If the CITY
D-26
21
determines that its actions or that of a third person, may affect such Fully Protected Species,
then the CITY shall notify the CDFW in writing of such discovery and propose measures
that are necessary to avoid Take of these species. The CITY shall implement the measures
proposed by CDFW or other measures agreed to by the Parties as adequate to avoid Take
of Fully Protected Species.
If at any time in the future the CITY requests authorization allowing the Incidental Take
of any species subject to California Fish and Game Code §§ 3511, 4700, 4800, 5050, or
5515, the CITY may request an amendment of the Plan and Permit, or a new permit, for
such species. In processing any such application CDFW shall give good faith consideration
to the take avoidance and mitigation measures already provided in the Plan and Permit and
shall issue the amendment or Permit under the same terms and conditions as the existing
Permit, to the extent permitted by law.
9.5 Take Authorizations for Third-Party Participants. The CITY, as a
Permittee, may allow within the Plan Area the Take of Covered Species by Third -Party
Participants undertaking Covered Projects or Covered Activities provided that the Third-
Party Participants are under the direct land use control of the CITY. Direct control may be
established through Permittee’s issuance of either a 1) Development permit or similar
authorization, or 2) Certificate of Inclusion to the Third-Party Participant to ensure
compliance with the terms and conditions of the Plan and Permits. As set forth below, such
activities must comply with all of the terms and requirements of the Permits, Plan, and this
Agreement.
9.5.1 Grant of Take to Third-Party Participants. The CITY may grant
Take Authorization to a Third-Party Participant for its activities upon compliance with this
section. The Third-Party Participant shall submit a complete application for the proposed
activity to the CITY containing a detailed description of the proposed activity, a map
indicating the location of the proposed activity and an analysis of its potential impacts to
Covered Species and their habitats and to the Preserve. The authorization for Incidental
Take issued by the CITY to a Third-Party Participant shall be for the length of time and
run concurrent with the specific land development Covered Project or Activity approval
granted by the CITY. However, no grading, clearing and/or grubbing activities may be
commenced or authorized by the Third-Party Participant pursuant to the CITY’s
development approval and entitlement process until the Take minimization and mitigation
obligations imposed through the CITY’s development approval have been fully satisfied
(via conservation easement, transfer of fee title, etc.) or are guaranteed (via irrevocable
offer of dedication, mitigation bond, letter of credit, pledged savings account or other
equivalent mechanism).
Within thirty (30) days of receipt of the complete application, the CITY and Wildlife
Agency staff shall review the application. If CITY staff, with the concurrence of the
Wildlife Agencies, finds that the proposed project or activity complies with all terms and
requirements of the Plan, the Permits, and this Agreement and does not compromise the
viability of the Permits or the Preserve, the CITY shall issue a Certificate of Inclusion upon
completion or fulfillment in full of all appropriate requirements as set forth below and the
D-27
22
proposed project or activity shall be deemed a Covered Activity. In the event the proposed
project or activity crosses the Preserve, CITY staff must make a finding supported by
adequate evidence that the project or activity will result in a biologically equivalent or
superior alternative to the Plan Preserve prior to execution of a Certificate of Inclusion, and
be consistent with the terms of the applicable conservation easement. The Certificate of
Inclusion shall depict on an attached map 1) the lands by parcel number, and 2) acreage
and owner to which the proposed Take Authorization(s) would apply. In the event that the
proposed project or activity does not comply with the terms and requirements of the
Permits, the Plan, and this Agreement, and/or compromises the viability of the Preserve,
the CITY and Wildlife Agency staff shall meet with the proposed Third-Party Participant
representatives to attempt to reach a mutually agreeable solution.
9.5.2 Requirements for Third-Party Participants. In addition to
complying with applicable sections of the Plan, Third-Party Participants shall also
contribute to Plan implementation through payment of a Mitigation Fee based upon the
type of proposed activity and amount of habitat impact, which shall be applicable to all
activities in the Plan Area (Section 5.3 of the Plan). Projects proposed inside the Preserve
shall be designed and implemented pursuant to the requirements of the Plan. All obligations
must be satisfied prior to impacts to Covered Species and their Habitats.
10.0 OBLIGATIONS OF THE PARTIES
10.1 Obligations of the CITY. The CITY will fully perform and fund all
obligations assigned to it or carried out on its behalf by PVPLC under the Plan, this
Agreement, and the Permits, including but not limited, to the Preserve assembly,
management and monitoring obligations, the requirement to amend all applicable CITY
ordinances as necessary to implement the Plan, funding of the Plan during the 40-year
Permit term, and implementation of planned responses to Changed Circumstances. The
CITY will continue to fulfill its funding responsibilities identified in Appendix C (Exhibit
C-2) of the Plan post-Permit term. The CITY is responsible for ensuring compliance with
the terms of the Plan, this Agreement and the Permits by Third-Party Participants and third
persons under the jurisdiction of the CITY and will use its police powers to enforce the
terms of the Plan, this Agreement, and the Permits against Third-Party Participants and
third persons subject to its jurisdiction.
10.1.1 Assembly of Preserve System. As of the Effective Date, there are
approximately 2,385.1 acres of undeveloped land remaining in the Plan Area, out of which
the CITY shall ensure the conservation and management in perpetuity of a minimum
1,402.4-acre Preserve, through dedication of Existing Public Lands. Of these lands, 1,143.7
acres of Existing Public Lands that are currently owned by the C ITY (1,123 acres) or the
PVPLC (20.7 acres) will be dedicated to the Preserve and managed by the PVPLC. The
remainder of the Preserve will be comprised of 258.7 acres of CITY-owned land or land
that will eventually be owned by the CITY which has been previously dedicated for
conservation as mitigation for certain private projects. Management of these previously
conserved or dedicated lands is dictated by pre-existing permits and/or agreements. All of
the lands to be dedicated to the Preserve are identified in Table 4-1 and Figure 4-2 of the
D-28
23
Plan. Within ninety (90) days after Permit issuance, each property listed in section 4.2 of
the Plan will be considered formally dedicated to the Preserve when a conservation
easement, in a form consistent with Exhibit E and approved by the Wildlife Agencies, in
favor of PVPLC or the CITY for property owned by the PVPLC and which names the
Wildlife Agencies as third-party beneficiaries, is recorded on the property. Once the 1,123
acres of CITY and 20.7 acres of PVPLC lands have been dedicated to the Preserve and are
permanently managed for conservation purposes, the CITY will have fulfilled its Preserve
assembly and mitigation obligations for the impacts of all of the Covered CITY Projects
and Activities described in Sections 4.2 and 5.0 of the Plan. Permanent management
includes the restoration/enhancement a total of 250 acres of habitat and the removal of
exotic plants on 5 acres or 20 small sites selected for treatment each year during the Permit
term as provided in Section 11.0 of this Agreement.
Furthermore, as explained in Section 7.2 of the Agreement, the CITY may choose to
dedicate an additional 170.9 acres of private and public undeveloped lands (“Targeted
Lands”) to the Preserve (Section 4.4 and Figure 4-3 of the Plan), if those lands are
subsequently acquired by the CITY. An additional 670.9 acres of undeveloped lands
(“Neutral Lands”) composed of natural vegetation are located within the Plan Area outside
of the Preserve (Section 4.5 and Figure 4-2 of the Plan). Neutral Lands are not currently
developable and are expected to contribute added conservation value to the NCCP/HCP;
however, they are not managed as part of the Preserve.
10.1.2 Management of the Preserve System. When the land is formally
dedicated to the Preserve, the lands will be perpetually managed according to NCCP/HCP.
The CITY through the PVPLC shall manage the Preserve lands in perpetuity in accordance
with the PHMP and other plans described in Sections 8.0 and 9.0 of the Plan. As described
in Section 9.3.1 of the Plan, PVPLC has prepared a PHMP that addresses the
implementation of the Preserve management and monitoring recommendations identified
in Sections 8.0 and 9.0 of the Plan. PVPLC began implementing the PHMP in 2006.
10.1.3 CITY Implementation Process. Upon approval of the NCCP/HCP
and signing of this Agreement, the CITY will use its land-use authority to implement the
provisions of the NCCP/HCP. The CITY will guarantee implementation of this
NCCP/HCP through interim and permanent regulatory measures, including codes,
ordinances, and policies contained in the CITY’s General Plan and Municipal Code, as
described in Section 6.0 of the Plan. The actions described in Section 6.0 of the Plan will
ensure consistent implementation of this NCCP/HCP through CITY policy, private, and
public project review and approval, and guidelines for operations and management of
public lands. In addition, the CITY will provide interim protection to habitat lands
addressed in the take authorizations through the process described herein. Subsequent
entitlements will not be provided without compliance with applicable provisions of the
CITY’s General Plan, Zoning Ordinance, Grading Ordinance, Subdivision Ordinance, and
any other applicable provisions of the Municipal Code (See Appendix F in the Plan). The
CITY shall implement the Sequence of Events and associated timelines described in
Section 6.5 of the Plan. Pursuant to Section 6.5 of the Plan, the CITY shall amend the
CITY’s General Plan, Municipal Code, Zoning Map, and CEQA Guidelines to provide
D-29
24
protection of the Preserve and ensure consistency of future projects within the NCCP/HCP
Plan Area through the CITY’s land use authority. The specific amendments are described
in Section 6.3.1 and 6.3.2 of the Plan.
Within ninety (90) days of the issuance of the Permits, the City and PVPLC shall develop
and submit to the Wildlife Agencies a PAP to facilitate access by utility agencies and the
CITY’s Public Works Department to areas within the Preserve. The PAP will contain
measures, including those in Sections 5.5 and 5.6 of the Plan, to avoid and minimize, to
the maximum extent possible, environmental damage, including direct and indirect impacts
to habitat and Covered Species.
10.1.4 CITY Ordinance or Urgency Ordinance (CITY Interim Resource
Protection Ordinance). Upon issuance of the Permits, the CITY Council will approve the
CITY Interim Resource Protection Ordinance (See Section 6.3.3 of the Plan), establishing
the protections contained in the NCCP/HCP to the Covered Species on an interim basis
until the CITY’s new regulations and ordinances that must be adopted to implement the
NCCP/HCP go into effect (Section 6.5.2 of the Plan). The CITY Urgency
Ordinance/Ordinance and final Ordinance will be reviewed and approved by the Wildlife
Agencies before adoption by the CITY. Specifically, the CITY Ordinance or Urgency
Ordinance will require that no new proposed development projects on vacant land abutting
the Preserve requiring discretionary approval within the CITY be approved by the CITY
without a determination of conformance to this NCCP/HCP. In addition, no grading within
the Preserve or on vacant lots abutting the Preserve that requires City approval will be
approved by the City without a determination of conformance to this NCCP/HCP by the
Community Development Director or his designee. Furthermore, no vegetation clearing or
grubbing, on lands within the Preserve or on vacant lots abutting the Preserve, or
conversion of non-agricultural lands to active agriculture within the Preserve, shall be done
without a determination of conformance to this NCCP/HCP by the Community
Development Director or his designee.
10.1.5 CITY Ordinance Revisions or Amendments. Any revisions or
amendments to the CITY Ordinance or Urgency Ordinance or to the regulations and
ordinances originally adopted by the CITY to implement the NCCP/HCP (Section 6.5.1 of
the Plan) shall be submitted to the Wildlife Agencies for review and comment at least sixty
(60) days prior to adoption by the CITY. Any revisions or amendments to the Ordinance
or Urgency Ordinance or other implementing regulations and ordinances that are
inconsistent with the NCCP/HCP or would impede implementation of the Plan will trigger
a reevaluation, and potential suspension or revocation of, the Permits.
10.1.6 CITY and Wildlife Agency Coordination. The Wildlife Agencies
will receive notification of projects in the CITY through the CEQA notification (or other)
process and may request a voluntary consultation within the normal public or CEQA
review period. Likewise, the CITY is free to request Wildlife Agency involvement in a
project where consultation will help address key issues or help to streamline the process.
All projects processed by the CITY will document their consistency with this NCCP/HCP
during appropriate CEQA review and will be summarized each year in the Annual Report.
D-30
25
All take authorized by the CITY under the Permits will be documented by the CITY by
maintaining a list of all approvals under this NCCP/HCP, which is included in the
NCCP/HCP Annual Report to the Wildlife Agencies. The list will describe the project,
including the total habitat lost, total habitat conserved, or disturbed by the Covered Projects
or Activities. The list will also describe the physical location of the tentative map or other
record or project/CEQA approval produced by the CITY. All project approvals issued over
the course of a year will be documented and discussed at the required annual meeting
described in Section 9.4 of the Plan. The primary exception to this general procedure will
be if a project requires an amendment to this NCCP/HCP as described herein.
10.1.7 Compliance with Existing Federal and State Wetland Regulations.
Impacts to State and/or Federal jurisdictional wetlands are not covered under this
NCCP/HCP. Wetlands are afforded protection under existing Federal and State law and
regulatory programs. The Federal Clean Water Act, the California Porter-Cologne Water
Quality Control Act, and the California Fish and Game Code Section 1600 et seq. provide
protection to wetland habitats through Federal and state regulatory permits and agreements.
Impacts to wetlands will be avoided to the maximum extent practicable. Compliance with
wetland regulations shall be consistent with Section 6.7 of the Plan.
10.2 Obligations of the Palos Verdes Peninsula Land Conservancy. PVPLC
is the designated Preserve Habitat Manager for the CITY’s NCCP/HCP Preserve and shall
fully perform and fund all obligations assigned to it under the Plan, this Agreement, and
the Permits, including but not limited, to management and monitoring obligations. As
stated in Section 10.1.1 in this Agreement, 20.7 acres of the 1,143.7 acres of Existing Public
Lands are currently owned by PVPLC and shall be dedicated to the Preserve and managed
by the PVPLC. Because the CITY has designated PVPLC to carry out certain of the CITY’s
obligations under the Plan, the CITY is liable for any violation of the Permits or failure on
the part of PVPLC during the 40-year Permit term to carry out its assigned obligations will
be under the Plan.
10.3 Obligations of the USFWS. The USFWS shall monitor CITY’s
compliance with the Permits and provide technical assistance to the CITY in implementing
the Plan pursuant to the USFWS’s statutory and regulatory authorities. To the extent
consistent with its legal authorities and resources, the USFWS shall cooperate with the
CITY and its designated Preserve Habitat Manager in obtaining additional funding from
various sources to supplement the conservation provided under the Plan.
10.3.1 Section 7 Consultations. The USFWS will evaluate the direct,
indirect, and cumulative effects of the Covered Projects and Covered Activiti es in its
biological opinion issued in connection with the Plan and issuance of the section 10(a)
Permit. In any consultation under section 7 of the ESA, with regard to a Covered Project
or Activity and with respect to a Covered Species involving the CITY or a Third-Party
Participant under the CITY’s jurisdiction and land use control for purposes of the Permits,
that may be required pursuant to section 7 after the Effective Date, USFWS shall, to the
maximum extent appropriate and consistent with the requirements of section 7, rely upon
D-31
26
and use the biological opinion issued in connection with its review of the CITY’s Federal
Permit application, provided that the Covered Project or Activity as proposed in the
consultation is consistent with and will be implemented in accordance with the Plan, this
Agreement, and the Permit.
10.3.2 Future Environmental Documentation. In issuing any permits or
other approvals concerning Covered Species as they may be affected by Covered Projects
or Activities, USFWS shall rely on and use the Environmental Assessment (EA) prepared
in conjunction with the CITY’s Incidental Take Permit application to the maximum extent
appropriate under NEPA and the Council on Environmental Quality’s NEPA regulations
(40 C.F.R. § 1500 et seq.). To the maximum extent possible under CEQA, CDFW shall
rely on and shall use the EIR/EA prepared in conjunction with the Plan as the appropriate
CEQA documentation, including the CEQA Guidelines (14 C.C.R. § 15000 et seq.), for
any future projects and approvals regarding potential impacts to Covered Species related
to Covered Projects and Activities within the Plan Area.
10.4 Obligations of CDFW. Upon execution of this Agreement by all Parties
and satisfaction of all other applicable legal requirements, CDFW will issue the CITY a
NCCP Permit authorizing take by the CITY of Covered Species resulting from Covered
Projects and Activities in the Plan Area. CDFW shall provide staff to serve on appropriate
committees and shall ensure the availability of staff for discussions and meetings with the
other Parties. To the extent consistent with its legal authorities, CDFW shall cooperate with
the CITY in obtaining additional funding from various sources to implement the Plan.
CDFW acknowledges that acquisition of the private lands that could be included in the
Preserve must be accomplished through transactions with willing sellers. In the event that
CDFW is unable to meet any of its obligations, CDFW will meet and confer with the other
Parties to this Agreement.
10.4.1 CEQA. The CITY and CDFW understand and intend that the EIR
prepared in conjunction with this Plan (SCH# 2003071008), will operate as a “program”
EIR under CEQA to the extent such use is consistent with applicable provisions of CEQA,
and the CEQA Guidelines (14 C.C.R. § 15000 et seq.). Accordingly, the CITY shall,
consistent with the provisions of CEQA, rely on and use the EIR prepared in conjunction
with the Plan in evaluating future land use decisions, and in issuing any permits or other
approvals within the Plan Area. Subsequent activities will be examined in light of the
program EIR, through the initial study process (CEQA Guidelines section 15168) to
determine whether additional environmental documentation is required under CEQA.
The CITY served as lead CEQA agency for the development of the joint EIR/E A for the
Plan and CDFW served as a responsible agency. In issuing a permit, CDFW must find that
the Plan and this Agreement adequately provide for the mitigation of potential “significant
effects on the environment,” as defined in California Public Resources Code section 21068
that may result to Covered Species and their habitat from the Covered Projects and
Activities authorized by the Plan, this Agreement, and the Permits. In the event that CDFW
participates as a lead, responsible, or trustee agency under CEQA with respect to the
implementation of a Covered Project or Covered Activity that fully complies with the Plan,
State Permit, and this Agreement, CDFW will not require, recommend, or request the
D-32
27
imposition of any additional or more stringent minimization or mitigation measures
directed at the protection or conservation of Covered Species or their habitat. As a
responsible or trustee agency under CEQA, CDFW will further notify the lead CEQA
agency that any avoidance, minimization, and mitigation measures otherwise required for
any impact to or Take of any Covered Species or their habitat resulting from Covered
Projects and Activities is satisfied by implementation of the Plan, this Agreement, and the
Permits.
10.4.2 Future CEQA Review by CDFW. Due to the comprehensive nature
of the Plan, to the maximum lawful extent for projects and/or project impacts covered under
the Plan, CDFW shall not recommend or otherwise seek to impose through consultation
with other public agencies, any mitigation, compensation or habitat enhancement
requirements regarding the Take of Covered Species beyond the requirements prescribed
in and pursuant to the Plan, Permit, and this Agreement.
11.0 PRESERVE MANAGEMENT
The CITY and PVPLC are responsible for ensuring the management of the Preserve in
perpetuity in accordance with the Plan and the Wildlife Agency-approved Preserve Habitat
Management Plan (PHMP) as described in Section 9.2.1 of the Plan. As stated in Section
8.3.3 of this Agreement, management activities in the Preserve are considered Covered
Activities. PVPLC, as the Preserve Habitat Manager, shall carry out the management
responsibilities described in the Plan, particularly in Sections 5.0, 7.0, and 9.0 of the Plan.
11.1 Non-Native Animal Species Management Plans. Management measures for
the Permittees to address non-native animal species are described in Section 7.4 of the Plan.
These measures address: 1) Feral and Domestic Animal Control, 2) A Cowbird Trapping
Program, and 3) Other Predator Control.
11.2 Habitat Restoration Plan. The CITY shall be required to restore a
minimum of 250 acres of habitat over the Permit term within the Preserve. A minimum of
5 acres of habitat shall be restored each year, or a total of 15 acres every three (3) years if
exigencies prevent restoration of 5 acres each year. Restoration within the Preserve shall
consist of actively establishing native habitat in areas currently dominated by non -native
habitat or disturbed lands, based on a three (3)-year Restoration Plan to be developed by
the PVPLC in coordination with the CITY and the Wildlife Agencies. The plan will include
recommendations for restoration sites beyond the three (3)-year period, and will be updated
and reviewed by the Wildlife Agencies every three (3) years to incorporate changes in
priorities, conditions, or unique situations while maintaining long-range planning
perspective. Restoration shall proceed as detailed in the NCCP/HCP unless changes are
requested by the PVPLC or the Wildlife Agencies.
Active restoration and enhancement of non-native habitats and disturbed lands will require
removal of existing non-native vegetation, seeding and/or planting with native species, and
monitoring the restoration effort. The habitat restoration program will focus on the creation
D-33
28
of habitat for Covered Species with the objective of increasing the overall habitat carrying
capacity and functionality of the Preserve for the Covered Species populations.
Habitat-specific restoration shall occur only on sites assessed as suitable for that habitat
type. Once the site and size of the restoration effort is determined, a project-specific
restoration program will be prepared according to the guidelines in Section 7.5 of the Plan.
The restoration program guidelines include: 1) Development of a Detailed Habitat
Restoration Plan, 2) Restoration Design Criteria, 3) Maintenance Program, 4) Restoration
Site Monitoring and Reporting, and 5) Restoration Site Success Goals.
11.3 Targeted Exotic Removal Plan for Plants. In addition to its obligation to
restore 250 acres of land within the Preserve to native habitat in accordance with Section
7.5 of the Plan, the CITY shall conduct weed control activities to remove exotic species on
a minimum of 5 acres or 20 small sites of land in the Preserve each year. PVPLC shall
conduct weed control activities in fulfillment of the CITY’s obligation through the TERPP
as described in Section 7.6 of the Plan. Annually, the PVPLC, in coordination with the
CITY and the Wildlife Agencies, shall identify and evaluate locations where exotic species
are prevalent as described in the PHMP. PVPLC will identify any new infestations on an
ongoing basis from information gathered when working in the Preserve during species
surveys and on trail and restoration projects and include these observations for appropriate
management actions in the TERPP. Five acres or 20 small sites shall be selected for
treatment each year during the Permit term. The CITY’s weed control requirement is in
addition to the CITY’s requirement to restore a minimum of 5 acres each year under the
habitat restoration program.
11.4 Covered Species Reintroduction. Section 7.7 of the Plan addresses the
reintroduction of Covered Species. In this context, reintroduction refers to putting the
species back into a known historical site or habitat within its historic range. Reintroduction
is generally used to enhance the overall species population viability. The following
concerns shall be addressed by the CITY and PVPLC in consultation with the Wildlife
Agencies before initiating a reintroduction effort: 1) does the reintroduction effort benefit
the species or population; 2) does the reintroduction site afford long-term stability; 3) are
there higher competing values (e.g., economic or land-use issues that could threaten the
long-term success of the effort); and 4) does the reintroduction effort provide the
opportunity for natural evolutionary processes to continue. Reintroduction of any federally
threatened or endangered species will be done in coordination with the Wildlife Agencies.
The decision to reintroduce a species depends on numerous species- and site-specific
factors, and any reintroduction effort will require detailed planning and monitoring, as well
as available funding for planning and implementation. Reintroduction is not a requirement
under the NCCP/HCP or Permits. Current information on target species in the Plan Area
may be insufficient to determine whether reintroduction efforts are warranted. Guidelines
on determining the appropriateness of reintroduction, as well as reintroduction
methodologies, are provided in Section 7.7.1 of the Plan if Covered Species monitoring
(Section 7.3.1 and 7.3.2 of the Plan) indicates that such efforts are warranted. If Covered
D-34
29
Species reintroduction is warranted, CITY and PVPLC shall implement reintroduction of
species consistent with Section 7.7 of the Plan.
12.0 MONITORING, MANAGEMENT, AND REPORTING
Implementation of the monitoring program is the responsibility of the CITY and conducted
by the PVPLC, with the monitoring assistance from the CITY, USFWS, and CDFW, as
available. PVPLC shall carry out the applicable management and monitoring specified in
Sections 7.0 and 9.0 of the NCCP/HCP. In collaboration with the CITY, PVPLC shall
address management and enforcement issues in the reporting program, along with
remediation or Adaptive Management strategies, as necessary. There will also be an
evaluation of funding needs and the ability to accomplish resource management goals. An
assessment of funding needs and management goals will be provided in the Comprehensive
and Annual Reports. Accomplishment of management goals will be measured against
specific habitat and species conservation targets set forth in the NCCP/HCP and this
Agreement.
The Covered Species monitoring program will identify: 1) short -term threats to species
persistence, 2) longer-term trends that may suggest declining populations, and 3) proposed
measures to improve species viability. In each case, active management may be required.
12.1 The Public Use Master Plan. A PUMP was developed jointly by the CITY
and PVPLC to address public access issues and was adopted by the Rancho Palos Verdes’
CITY Council on April 2, 2013. Public uses of the Preserve is considered a conditionally
compatible use under the NCCP/HCP, provided they are consistent with the guidelines set
forth in Section 9.2.2.1 and the PUMP implementation strategy described in 9.2.2.1 of the
Plan. The PUMP includes the Preserve Trails Plan, which is described further in Section
5.2.8 of the Plan. The PUMP received approval from the Wildlife Agencies. Public use and
trail routes/configurations will be compatible with the Preserve by avoiding disruption of
any native vegetation (e.g., CSS), habitat, or wildlife to the maximum extent practicable
consistent with the Plan. The public uses and activities in the PUMP shall be consistent
with PUMP guidelines and implementation criteria identified in Section 9.2.2 of the Plan.
12.2 Fire and Fuel Modification in the Preserve. The CITY and PVPLC are
responsible for performing fuel modification on their respective lands in the Preserve.
While fire and fuel modification will be carried out with a priority for human safety, where
practicable, the CITY and PVPLC shall also consider the minimization of impacts to
biological resources, where appropriate (i.e., habitat types and Covered Species, proximity
to developed areas, and type of development). Standard fire protection measures include
vegetation management and fuel reduction by prescribed burning, disking, chaining, and
vegetation clearing and removal. With both biological resources and human safety
considerations in mind, management guidelines identified in Section 9.2.3 of the Plan shall
be implemented for performing the required fuel modification within the Preserve.
D-35
30
12.3 Fencing and Signage.
12.3.1 Fencing. Existing fencing inside the Preserve shall be dismantled,
to the extent practicable, and no new fencing shall be installed except as described in 9.2.4
of the Plan.
12.3.2 Signage. Signs that explain the rules of the Preserve (e.g., hiking,
bicycle riding and horseback riding) are most effective at public entrance points. Signs for
educational nature trails and on roads near wildlife corridors (to reduce road kills) shall be
posted at appropriate locations. Installation of signage shall be consistent with Section 9.2.4
of the Plan.
12.4 Covered Species Monitoring. Section 7.3 of the Plan outlines the
necessary monitoring tasks, including methodologies, data collection, and analysis. The
Covered Species monitoring program will identify 1) short-term threats to species
persistence, 2) longer-term trends that may suggest declining populations, and 3) proposed
measures to improve species viability. In each case, active management may be required.
The Covered Species monitoring effort will achieve NCCP/HCP objectives of
documenting the protection of Covered Species and changes in conserved populations of
Covered Species as well as collecting new biological data.
A critical factor in the success of the program will be coordination of monitoring
efforts to ensure spatial and temporal consistency in data collection and analysis, and to
allow compilation of data from different sources into comprehensive monitoring reports
issued every three (3) years. A centralized data storage system will be established at the
PVPLC office and will be structured in such a way that data can be easily incorporated into
the statewide monitoring database currently being developed by CDFW and others. Data
will be made accessible to biological monitors, researchers, and reviewers (including the
Wildlife Agencies), facilitating the coordination of monitoring programs with other NCCP
subregions as described in Section 7.3.3 of the Plan.
12.5 Wildlife Agencies Monitoring. The Wildlife Agencies may conduct
inspections and monitoring of the Preserve and the site of any Covered Project or Covered
Activity, and may inspect any data or records required by this Agreement, the Plan, or
Permits, in accordance with applicable law and regulations.
12.6 Reporting
12.6.1 Preserve Habitat Management Plan. The PVPLC has developed an
initial PHMP for the Preserve, as described in Section 9.0 of the Plan. The PHMP
consists of four plans:
a. Initial Management and Monitoring Plan. This plan includes the
results of the focused baseline surveys for covered plant and wildlife
species.
D-36
31
b. Predator Control Plan. Based on the focused baseline surveys,
this plan describes potential provisions for control of predators to
wildlife within the Preserve and provides framework for education
programs and monitoring for feral or domestic animals, native large
predators, and mesopredators. The Predator Control Plan will be
revised every three (3) years or if additional controls are needed.
c. Habitat Restoration Plan. This plan identifies habitat restoration
projects consisting of a minimum of 5 acres of habitat, or a total of
15-acres over three (3) years, in suitable locations in the Preserve
and will be updated/revised every three (3) years.
d. Targeted Exotic Removal Plan for Plants. This plan provides
details regarding prioritizing exotic plant control within the
Preserve. It describes the methodology of the proposed targeted
exotic plant removals, wherein each year exotic plants on 5 acres or
20 individual sites are to be removed.
12.6.2 Annual Reports. The PVPLC and CITY shall prepare an Annual
Report based on a calendar year (January to December) for the purposes of evaluating the
implementation of the NCCP/HCP during the preceding year and the adequacy of the
overall progress being made towards reaching the conservation goals of the NCCP/HCP,
utilizing Habitrak or a similar system acceptable to the Wildlife Agencies. The Annual
Report timeline following the first full year the Permits are in affect is as follows: PVPLC
will submit the Annual Report of the previous calendar year to the CITY and Wildlife
Agencies by February 28th, the Wildlife Agencies will review and submit comments to the
CITY by March 31st, and the report will be submitted to CITY Council for approval on or
around May 30th. Items to be considered in the evaluation include, but are not limited to:
gains/losses (by Project and CEQA reference) to habitat within the Plan area (both inside
and outside the Preserve); impacts of public uses and recommendations, if necess ary, for
minimizing impacts to the Preserve; all contributions towards the preservation of habitat
lands, such as public lands, private mitigation lands, land donations, land acquisitions, and
management activities undertaken or proposed on habitat lands; and a summary of night
time use of the Preserve. The Annual Reports shall also include a description of the
management of invasive plant species, documentation of the habitat restoration efforts to
enhance and restore native plant communities and the results of biological monitoring of
the Preserve. It shall also report on the impacts of public uses and provide
recommendations, if necessary, for minimizing impacts to the Preserve. During the first
five (5) years of management, the CITY and PVPLC will conduct an annual evaluation of
management activities, enforcement activities, funding needs, and the ability to accomplish
resource management goals. A separate Fiscal Report prepared jointly by the CITY and
PVPLC will be provided to the USFWS and CDFW yearly, as part of the Annual Report.
For lands within the Preserve, the conservation of habitat and species locations will be
accounted for when habitat is permanently conserved (e.g., date of recordation of title
transfer, recordation of a conservation easement, or execution/recordation of any other
D-37
32
instrument that confers third-party beneficiary status to the project/property) and this
information will be included in the Annual Report. The accounting information for
conserved acres also will identify the protection mechanism, owner and agency or person
responsible for conservation and management, and other related information.
The Annual Report shall include reporting on the Targeted Exotic Plant Removal efforts.
As part of the habitat tracking, the CITY shall produce an annual accounting of the acreage,
type, and location of habitat and species conserved or lost within the Plan Area (by Project
and CEQA reference). The habitat tracking would include areas gained/conserved,
restored, and areas lost/removed by Covered Projects and Activities under the Plan. The
CITY will maintain records in ledger and GIS format using the HabiTrak application (or
similar methodology) which is currently being used in other NCCPs. The report will
include a list of all Covered Activities performed the previous year. It will specify the
review process for each Covered Activity and describe impacts to Covered Species and
vegetation from each project. The information will contribute to the annual public report
demonstrating compliance with the terms and conditions of this NCCP/HCP, Agreement,
and Permits.
A separate Fiscal Report, prepared jointly by the CITY and PVPLC, will be provided to
the USFWS and CDFW yearly, as part of the Annual Report, which will also be included
in the Comprehensive Report. After the first five (5) years, following Permit issuance, this
evaluation will be part of the Comprehensive Report submitted every three (3) years. The
Fiscal Report shall include an accounting of all funds received and expended during the
previous year to implement the Plan, including the amounts received and expended on
habitat acquisition, restoration management, and monitoring. The Fiscal Report will be
used by the Wildlife Agencies to evaluate whether adequate progress toward
implementation of the Plan is being achieved. An annual public workshop or meeting will
be held by the CITY and attended by PVPLC to disseminate and discuss the Annual Report.
Annual Reports shall also include a summary of clerical changes and
corrections to maps or exhibits made to the Plan, this Agreement, or Permits in the
preceding calendar year. Annual Reports shall also include a summary of changes made to
survey, monitoring, or reporting protocols in the preceding calendar year.
12.6.3 Comprehensive Reports. A Comprehensive Report shall be
prepared by the PVPLC, in coordination with the CITY, every three (3) years, and will
include both a synthesis of all data collected in the preceding three (3) years and an analysis
of overall trends in biological resources. Where monitoring indicates that biological
resources are imminently threatened and in need of immediate attention, interim letter
reports may be used to document problems and notify the appropriate personnel in a more
timely fashion. All monitoring reports will be submitted for review by the CITY, USFWS,
and CDFW. The Comprehensive Report timeline following the first full year the Permits
are in affect is as follows: PVPLC will submit the Comprehensive Report for the previous
three calendar years to the CITY and Wildlife Agencies by March 31st, the Wildlife
Agencies will review and submit comments to the C ITY by April 30th, and the report will
be submitted to CITY Council for approval on or around May 30th. The reporting program
will be the primary vehicle for 1) providing monitoring results and 2) identifying habitats
D-38
33
or species that require specific Adaptive Management activities. A separate Fiscal Report
prepared jointly by the CITY and PVPLC will be provided to the USFWS and CDFW
yearly, as part of the Annual Report, which will be included as an appendix in the
Comprehensive Report. The Comprehensive Report shall contain the following
components as more fully described in Section 9.3.2 of the Plan:
a. Updated Covered Species Surveys
b. Updated Predator Control Plan
c. Updated Habitat Restoration Plan
d. Management Recommendations
12.6.4 Annual Coordination Meetings. The CITY and PVPLC shall meet
or (at the discretion of the Wildlife Agencies) communicate with the USFWS and CDFW
once each year to review and coordinate implementation of the NCCP/HCP, as documented
by the Annual Report. The Annual Report will include Habitat Tracking as described in
Section 9.3.1 of the Plan. Progress toward achieving conservation requirements will be
reviewed, and habitat management issues will be discussed, along with a review of
NCCP/HCP project approvals affecting undeveloped lands issued by the CITY over the
course of the year.
Every third year, a meeting will be held to discuss the Comprehensive Report, which
includes restoration planning, management, and the results of species surveys. It is the
responsibility of the CITY to schedule this meeting by April 30th annually or as otherwise
agreed to by the CITY and Wildlife Agencies. To meet the stipulations of the IA, this
NCCP/HCP must be implemented in a way that issuance of authorizations for taking of
species and habitats is roughly proportional with implementation of the conservation
strategy in this NCCP/HCP.
If the Wildlife Agencies determine that this NCCP/HCP is not being implemented as
required, the Wildlife Agencies, PVPLC, and the CITY will take the actions specified in
this Agreement to remedy the situation. These actions may include additional management
activities, modification of the project compliance process, or redirection of acquisition
and/or other Plan funds, as long as they are consistent with the provisions of this
Agreement, provided; however, that nothing in this Agreement is intended, or shall be
construed to limit the remedies available to either of the Wildlife Agencies under law t o
enforce, or remedy violations of their respective Permits.
If the Wildlife Agencies determine that adequate progress towards implementation of the
NCCP/HCP is being achieved, but the NCCP/HCP is nevertheless not providing sufficient
protection to Covered Species, CDFW and USFWS shall set forth their findings and the
basis for such findings in writing; and then the Parties shall work cooperatively and take
appropriate actions consistent with the NCCP/HCP (such as altering management
activities, redirecting mitigation, and acquisition).
D-39
34
12.6.5 Certification of Reports. Each Annual and Comprehensive Report
shall include the following certification from the responsible CITY officials and PVPLC
who supervised or directed preparation of the report:
“I certify under penalty of law that, to the best of my knowledge, after
appropriate inquiries of all relevant persons involved in the preparation of
this report, the information submitted is true, accurate, and complete.”
13.0 ADAPTIVE MANAGEMENT
13.1 CITY and PVPLC-initiated Adaptive Management. The CITY and
PVPLC shall implement the Adaptive Management provisions described in Section 7.2 of
the Plan when changes in management practices are necessary to achieve the Plan’s
biological objectives, or to respond to monitoring results or new scientific information.
The CITY shall notify and obtain concurrence of the Wildlife Agencies for any proposed
Adaptive Management actions to be taken pursuant to this section.
In an Adaptive Management context, the PHMP may require new management directives
if changes in population size of Covered Species are identified as a result of this
monitoring. Adaptive Management may include re-prioritizing monitoring efforts, as
indicated by monitoring results and the resultant degree of management required for a
given resource. The remediation and Adaptive Management program will achieve the
objectives of providing corrective actions where 1) resources are threatened by land uses
in and adjacent to the Preserve, 2) current management activities are not adequate or
effective, or 3) enforcement needs are identified. The highest priority monitoring tasks will
be those that 1) provide direct evidence of changes in key biological resources and 2) for
which corrective or remedial management actions are possible.
The Wildlife Agencies will work cooperatively with the CITY and its Preserve Habitat
Manager to set any potential new priorities that can be identified from results of Annual
and/or Comprehensive Reports. Moreover, the CITY will consider input from the Wildlife
Agencies, science advisors, other land management agencies, and the public, as provided
in this Section and Section 7.2 of the Plan. Any major changes in the Adaptive Management
program will require the approval of the Wildlife Agencies prior to implementation,
including, but not limited to, any proposed actions that would be inconsistent with the Plan
or detrimental to a Covered Species introducing new and untested management techniques,
discontinuing and replacing ineffective management techniques that are recommended in
the Conservation Strategy, or applying management techniques on a much larger or smaller
scale than envisioned in the Plan.
13.2 Reductions in Mitigation. The CITY shall not implement Adaptive
Management changes that may result in less mitigation than provided for the Covered
Species under the original terms of the Plan. The CITY may propose Adaptive
Management changes by notice to the Wildlife Agencies, specifying 1) the Adaptive
Management modifications proposed; 2) the basis for them, including supporting data, and
D-40
35
the anticipated effects on Covered Species and their habitats; and 3) other environmental
impacts. Within one hundred and twenty (120) working days of receiving such a notice,
USFWS and CDFW shall either use their reasonable efforts to approve the proposed
Adaptive Management changes, approve them as modified by the Wildlife Agencies, or
notify the CITY that the proposed changes constitute Major Amendments that must be
reviewed under Section 18.2 of this Agreement.
13.3 No Increase in Take. This section does not authorize any modifications
that would result in an increase in the amount and nature of Take, or an increase the impacts
of Take, of a Covered Species beyond that analyzed in connection with the original Plan,
the associated biological opinion and EA/EIR, and any amendments thereto. Any such
modification must be reviewed as a Major Amendment under Section 18.2 of this
Agreement.
14.0 FUNDING
Implementation of the NCCP/HCP shall require funding to provide services and
management and conduct habitat restoration, invasive species control, monitoring,
Adaptive Management, and post-Permit perpetual management and monitoring of the
Preserve (See Section 8.2 of the Plan). The CITY shall fully fund all obligations assigned
to it under the Plan and is ultimately responsible for funding all of the obligations under
the Plan assigned to PVPLC, or its successor, as the CITY’s Preserve Habitat Manager
during the 40-year Permit term. The CITY will continue to fulfill its funding
responsibilities identified in Appendix C (Exhibit C-2) of the Plan post-Permit term. Within
the Preserve, the CITY shall be responsible for services such as storm drain maintenance
and control; public security; trash disposal; fuel modification for fire prevention purposes
on lands owned by the CITY; utility services; and maintenance of some signs, fences, and
trails; in perpetuity. PVPLC, as the Preserve Habitat Manager, shall be responsible for
carrying out the biological objectives and methodology described in Section 7.0 of the Plan
for monitoring of the Preserve. Surveys for Covered Species, control of invasive species,
and fuel modification for fire prevention purposes on lands owned by the PVPLC (Lunada
Canyon), will be the responsibility of PVPLC in perpetuity (See Section 9.0 of the Plan for
Preserve Management). In addition, it is permissive that PVPLC conduct trail maintenance
in the Preserve. These management-related activities shall be provided in the form of in-
kind services, or funded by cash, as appropriate for each item.
14.1 Management Budget Analysis. The CITY and the PVPLC developed a
Management Budget Analysis for the proposed Preserve (See Section 8.1.1 of the Plan and
Appendix C). Since that time, levels of services necessary have changed, and each
Permittee’s annual cost to manage the Preserve were calculated. Based on the updated
Preserve Management budget, the CITY and PVPLC’s total cost of managing the Preserve
is estimated at $1,785,438. The methodology combines actual costs with the methodology
of the Center for Natural Lands Management’s Property Analysis Record in which the
characteristics and needs of the properties are analyzed to derive the management
requirements on a yearly basis. Management tasks were specified and their costs provided
or estimated, as were the administrative costs to provide for the cost of yearly management.
D-41
36
The cost of habitat management and biological monitoring varies according to habitat type,
condition, and specific tasks needed to maintain biological value. The budget (Appendix C
in the Plan) is presented by line item costs for services such as biological surveys, habitat
restoration (site construction/maintenance, habitat restoration, and habitat maintenance),
invasive plant control, reporting, fuel modification, sanitation, signage, patrolling, etc.
Even though some tasks, such as coastal California gnatcatcher and cactus wren surveys,
are required every three (3) years, the budget annualizes these costs.
14.2 Habitat Management Funding. The NCCP/HCP relies on dedicated
funding sources to fulfill its requirements for the Permit term and associated perpetual
management of the Preserve post-Permit term. The required services that will be funded
have been detailed in the Budget Management Analysis (Appendix C in the Plan). The
annual service commitments for Preserve management during the 40-year Permit term are
identified in Table 8-1 of the Plan. The funding amounts shown in Table 8-1 in the Plan
are based on costs expended during the fiscal year 2016-2017 and are adjusted annually for
inflation or as needed to cover the cost of the activities. Levels of service may be increased
or decreased depending on management needs of the Preserve. No additional funding from
the CITY or the PVPLC other than what is described in Section 8.2 of the Plan is
anticipated to be required to implement the NCCP/HCP. To supplement this funding, the
CITY and PVPLC shall actively pursue public and private funding sources on an annual
basis. This may enable the CITY and PVPLC to undertake projects above those required
by the Plan, such as implementing additional habitat restoration. The Permittees may also
use or establish other local funding measures, including, but not limited to, utility
surcharges, special taxes or assessments, or bonds, to the extent allowed by law.
Annual Funding for Preserve Management During the Permit
SOURCE *AMOUNT FROM
City $ 144,300 **Annual payment for the Management Agreement with PVPLC
City $ 1,391,119 **Services/financial contributions
PVPLC $ 250,019 Volunteer time/in-kind services in addition to $144,300 annual
payment for the Management Agreement from the City
Total $1,785,438
*Includes habitat restoration and Preserve management based on FY 2016-2017 costs
*Excludes the $50,000 Dedicated Habitat Restoration Fund
**See Section 8.2.1.1 of the Plan
D-42
37
14.2.1 Habitat Restoration Fund. The CITY shall maintain a dedicated
Habitat Restoration Fund as part of the approved CITY budget, with at least $50,000
(adjusted annually for inflation by the CITY using the Consumer Price Index (CPI-U)) to
be used to fund planned responses to Changed Circumstances pursuant to Section 6.10.2
of the Plan. The Habitat Restoration Fund was established in 2006 and may be periodically
augmented by payments made by applicants of private projects covered by the Plan
identified in Section 5.3 of the Plan. Monies in the CITY’s Habitat Restoration Fund, above
the $50,000 balance noted above, may be used by the CITY for habitat
conservation/restoration purposes including, but not limited to, the following: 1) As
payment to the PVPLC to meet the CITY’s cash obligation for Preserve management;
2) As a contribution toward the CITY’s non-wasting endowment fund discussed below,
which is necessary to assure maintenance of the Preserve once the NCCP/HCP Permit
expires; and/or 3) As a contribution to the PVPLC to perform habitat conservation activities
beyond the requirements of this Plan; and 4) The CITY understands and acknowledges that
its obligation to fully fund the Habitat Restoration Fund and to fully fund each of its other
obligations under the NCCP/HCP, including, its habitat management, monitoring, and
restoration requirements, and its perpetual Preserve management obligations, which are
independent of and do not depend on the existence of periodic payments from private
project applicants or from Third-Party Participants.
14.3 Non-Wasting Endowment Fund. To assure maintenance of the Preserve
once the NCCP/HCP Permits expire, beginning in 2006, the CITY shall provide annual
payment to the PVPLC with a minimum of $10,000, adjusted annually using the Consumer
Price Index (CPI-U) for a separate non-wasting endowment fund. The PVPLC shall
manage the endowment to cover its costs for post-Permit conservation management
thereby removing any financial obligations related to conservation management by the
CITY post-Permit term. The CITY will continue to fulfill its funding responsibilities
identified in Appendix C (Exhibit C-2) of the Plan post-Permit term. Currently, there is
approximately $126,946 within the account that will be transferred to the PVPLC within
60 days after the CITY Council’s adoption of the Plan. A minimum payment of $10,000
(as described above) will be provided to the PVPLC by the CITY every year and continuing
for the Permit term. Principal, interest, dividends and/earnings will remain in the fund until
the Permit expires. A Fiscal Report on the status of the fund will be included in the Annual
Report to the Wildlife Agencies as described in Sections 8.2 and 9.3 of the Plan. The
PVPLC’s investment strategy of the fund is anticipated to generate at least $863,000
(adjusted for CPI-U) by the end of the 40 year-Permit term which will assure sufficient
funding for the perpetual management of the Preserve.
The interest and dividends on the endowment, but no part of the principal, will be used by
the PVPLC for conservation easement management when the Permit term expires (See 8.2
of the Plan for further details). Management of the conservation easement by the PVPLC
will include monitoring the lands in accordance with the conservation easements, providing
monitoring reports and any needed follow up, communication with the landowner (CITY),
communication with CITY staff and utility companies as needed with regard to
conservation easement requirements, reviewing permitted rights and approvals for
activities, dealing with minor violation incidents, and coordinating the resolution. The
D-43
38
estimated annual cost that the PVPLC will fund from the endowment for such post-Permit
activities is $22,030, adjusted annually by the CPI-U as of February of each year beginning
in 2018, based on the PVPLC’s experience monitoring the lands under conservation
easement (Summary of Estimated Post-Permit Costs, Appendix C). The PVPLC will also
provide basic land stewardship, including monitoring, sign and trail maintenance, and
invasive species control on CITY-owned lands post-Permit expiration. The endowment
will be enough to cover these post-Permit costs. The CITY will perpetually provide
services and contributions for maintenance of trails that accommodate authorized vehicles,
sign maintenance, public safety, enforcement, waste removal, landslide abatement district
assessment, fuel modification for fire prevention purposes, staff time (e.g., Planning, Parks
and Recreation, and Public Works), and maintenance for allowable activities in the
Preserve apart from the long-term conservation easement endowment post Permit Term.
The CITY will also encourage and promote additional habitat maintenance or restoration
to be conducted.
Long-term management of the Preserve will require funding to provide services, and
conduct invasive species control, monitoring, and Adaptive Management. Within the
Preserve, the CITY will continue to be responsible for the perpetual maintenance and repair
of CITY-owned public infrastructure such as sewer and storm control, public safety
enforcement services, maintenance of trails that accommodate authorized vehicles, trash
disposal, fuel modification for fire prevention purposes on lands owned by the CITY, and
maintenance of signs, fences, and trails stipulated in the agreement between the CITY and
PVPLC. Post-Permit expiration, PVPLC, will be responsible for ensuring the preservation
of habitat, which will in part be achieved through the monitoring of the conservation
easements on the Preserve lands. PVPLC will also provide basic land stewardship,
including monitoring, fencing, sign and trail maintenance, and invasive species control on
CITY-owned lands post Permit expiration (See Post-Permit Costs, Appendix C in the
Plan). Through these conservation easements, the PVPLC has committed to perpetual
stewardship. Implementation of these and other activities may require a Federal and state
permit, as necessary, after the Permits expire if take of Covered Species is anticipated.
14.4 Effect of Inadequate Funding. If funding becomes inadequate to
implement the Plan during the 40-year Permit term, the Wildlife Agencies shall assess the
impact of the funding deficiency on the scope and validity of the Permits. Except in cases
of withdrawal by Permittee or permit revocation by the Wildlife Agencies, the Parties agree
to meet and confer to develop a strategy to address the funding shortfall, and to undertake
all practicable efforts to maintain the level of conservation and Take authorization afforded
by the Permits until the funding situation can be remedied.
If circumstances warrant suspension or revocation of the HCP Permit and/or the NCCP
Permit, in whole or in part, the applicable Wildlife Agencies shall meet and confer with
the Permittee within thirty (30) days of such determination to identify potential actions that
may be available to forestall the suspension or revocation of a Permit(s). If the Permittee
elects to institute measures to cure the funding shortfall, implementation of such measures
shall begin no later than ninety (90) days from the date of the meeting with the Wildlife
Agencies. Notwithstanding suspension or revocation of either Permit, the Permittee
D-44
39
remains responsible for any outstanding mitigation and minimization measures for Take
that occurred under the Plan prior to suspension or revocation.
15.0 CHANGED CIRCUMSTANCES
As provided in 50 C.F.R. § 17.3 the term Changed Circumstances, means changes in
circumstances affecting a species or the geographic area covered by the NCCP/HCP that
can reasonably be anticipated by the CITY and/or its designated Preserve Habitat Manager,
USFWS, and CDFW and that can be planned for in the NCCP/HCP. The provisions in
Section 6.9.2 of the NCCP/HCP address all reasonably foreseeable Changed
Circumstances and describe a comprehensive program for identifying and responding to
Changed Circumstances. Changed Circumstances provided for under the NCCP/HCP are
not considered additional measures and therefore are not subject to the limitations on
additional measures set forth in the No Surprises Rule.
15.1 CITY-Initiated Response to Changed Circumstances. The CITY, in
coordination with PVPLC, shall immediately provide written notification within seven (7)
working days to the Wildlife Agencies upon learning that any of the Changed
Circumstances listed in Section 6.9 of the Plan has occurred. Within thirty (30) working
days, the CITY shall modify its activities and shall require affected third persons under its
direct control to modify their activities in accordance with Section 6.9 of the Plan, as
appropriate, to the extent necessary to minimize and mitigate the effects of the Changed
Circumstances. The CITY and/or PVPLC shall report to the Wildlife Agencies on its
actions within thirty (30) days. Such modifications shall be initiated without awaiting
notice from the Wildlife Agencies.
15.2 Wildlife Agency-Initiated Response to Changed Circumstances. If
USFWS or CDFW determines that Changed Circumstances have occurred and that the
CITY and/or PVPLC has not responded in accordance with Section 6.10 of the Plan, the
Wildlife Agencies shall so notify the CITY and, as appropriate, direct the CITY to make
the required changes. Within thirty (30) working days after receiving such notice, the
CITY, will make the required changes and report to the Wildlife Agencies on its action.
The Wildlife Agencies may extend the period of time in which to implement the CITY’s
planned responses upon the CITY’s showing of good cause and secured commitment.
16.0 REGULATORY ASSURANCES
16.1 Assurances under the ESA.
16.1.1 No Surprises. Pursuant to the No Surprises Rule at 50 C.F.R. §§
17.22(b)(5) and 17.32(b)(5), and provided that the Permittees are properly implementing
the Plan, the USFWS shall not require the Permittees to provide additional land, water or
other natural resources, or financial compensation or additional restrictions on the use of
land, water, or other natural resources beyond the level provided for under the Plan, this
Agreement and the section 10(a)(1)(B) Permit with respect to Covered Projects and
Covered Activities without the consent of the Permittees. Adaptive Management
D-45
40
modifications and plan responses to Changed Circumstances are provided for under the
Plan and are not subject to the mitigation assurances in the No Surprises Rule.
The regulatory assurances provided to the City by the No Surprises Rule are contained in
50 C.F.R. §§ 17.22(b)(5) and 17.32(b)(5) and are changes in circumstances affecting a
species or geographic area covered by the Plan that could not reasonably have been
anticipated by the City, PVPLC, or Wildlife Agencies, at the time of the Plan’s negotiation
and development, and that result in a substantial and adverse change in the status of a
Covered Species.
16.1.2 Unforeseen Circumstances. As provided in 50 C.F.R. § 17.3, the
term “Unforeseen Circumstances” shall mean changes in circumstances affecting a species
or geographic area covered by the Plan that could not reasonably have been anticipated by
the CITY, PVPLC, or Wildlife Agencies, at the time of the Plan’s negotiation and
development, and that result in a substantial and adverse change in the status of a Covered
Species as described in Section 6.10.1 of the Plan and Section 10.3 of this Agreement.
16.2 Assurances Under the NCCP Act. Provided the CITY and PVPLC are
implementing the Plan, the Permits, and this Agreement, CDFW shall not require
additional land, water or financial compensation or additional restrictions on the use of
land, water, or other natural resources for the life of the NCCP permit without the consent
of CITY, unless CDFW determines that continued implementation of the Plan would
jeopardize the continued existence of a Covered Species. Adaptive Management
modifications and Plan responses to Changed Circumstances are provided for under the
Plan. Accordingly, the resources identified to support such modifications and planned
responses, together with the other resources commitments of the Permittees reflected in the
Plan, constitute the extent of the obligations of the Permittees pursuant to the NCCP Act
assurances.
16.3 Process to Respond to Unforeseen Circumstances. If the USFWS,
CDFW, or the Permittees believe that an Unforeseen Circumstance exists, it shall
immediately provide written notice of its proposed finding of Unforeseen Circumstances
to the Parties. Within thirty (30) days of such notice, USFWS in coordination with CDFW
shall clearly document the basis for the proposed finding regarding the existence of
Unforeseen Circumstances pursuant to the requirements of 50 C.F.R. §§ 17.22(b)(5)(iii)(C)
and 17.32(b)(5)(iii)(C). Within fifteen (15) days of receiving such notice, the Permittees
and the Wildlife Agencies shall meet and confer to consider the facts cited in the notice
and potential changes to the Plan or management and operation of the Preserve lands.
Pursuant to 50 C.F.R §§ 17.22(b)(5)(iii)(C) and 17.32(b)(5)(iii)(C), USFWS in
coordination with CDFW shall make an Unforeseen Circumstances finding based on the
best available scientific information, after considering any responses submitted by the
CITY and PVPLC pursuant to this section and as described in Section 6.9 of the Plan, and
the USFWS in coordination with CDFW shall have the burden of demonstrating that
Unforeseen Circumstances exist.
D-46
41
16.4 Interim Obligations Upon a Finding of Unforeseen Circumstances. If
USFWS in coordination with CDFW makes a finding of Unforeseen Circumstances, during
the period necessary to determine the nature and extent of additional measures required
and available, if any, to address the unforeseen circumstances, the CITY and PVPLC shall
avoid contributing to appreciably reducing the likelihood of the survival and recovery of
the affected Covered Species and the CITY shall accordingly exercise its enforcement
authorities as provided by law over third parties under the CITY’s jurisdiction and control
that are carrying out Covered Activities.
17.0 PERMIT TERM
17.1 Effective Date. This Agreement shall be effective upon issuance of
the Permits.
17.2 Permit Term. This Agreement, the Plan, and the Permits will remain in
effect for an initial term of 40 years from issuance of the original Permits.
17.3 Extension of the Permits. Upon agreement of the Parties and compliance
with all applicable laws, the Permits may be extended beyond the initial term in accordance
with regulations of the Wildlife Agencies in force on the date of such extension.
17.4 Withdrawal by the CITY. After written notice to the Wildlife Agencies,
the CITY, as the Permittee, may unilaterally withdraw from the Plan provided it has
complied with all mitigation obligations incurred under the requirements of the Plan and
the associated Permits. As a condition of withdrawal, the Permittees will remain obligated
to ensure implementation of all existing and outstanding minimization, mitigation, and
conservation measures required under the Permits for any Take that the Permittee itself
caused and Take by Private Projects (third parties under the CITY’s jurisdiction and
control) or Third-Party Participants for which the Permittee authorized Take prior to
withdrawal. Withdrawal of the CITY and/or PVPLC will be deemed to constitute surrender
of the Take Permits. Pursuant to 50 C.F.R. §§ 17.22(b)(7) and 17.32(b)(7), notwithstanding
surrender of the Federal Permit, the Federal Permit shall be cancelled only upon a
determination by USFWS that all outstanding minimization and mitigation measures
required for Take that occurred under the Permit have been satisfied.
18.0 PLAN AMENDMENTS
18.1 Minor Amendments. Minor Amendments may be proposed to the Plan or
this Agreement pursuant to Section 6.8 of the Plan by providing notice to all other Parties.
Minor changes to the NCCP/HCP that do not result in coverage for new activities or
impacts to the Covered Species or their habitats may be made through the Minor
Amendment process. The CITY shall provide written notice of any proposed Minor
Amendment to the Wildlife Agencies at least sixty (60) days prior to scheduling the action
and/or project for any public hearing, and disclose the amendment in the appropriate CITY
CEQA documentation. Such notice shall include a statement of the reason for the proposed
Minor Amendment and an analysis of its environmental effects, including its effects on
D-47
42
operations under the Plan and on the Covered Species. The Wildlife Agencies shall use
their reasonable efforts to complete their reviews of the proposed Minor Amendment
within sixty (60) days of receipt of a complete request from the CITY. With the exception
of equivalency findings which are addressed separately in Section 18.1 D of this
Agreement, the proposed Minor Amendment by the CITY will only become effective upon
the written approval of the Wildlife Agencies. If the Wildlife Agencies do not concur in
writing that the proposed modification may be processed as Minor Amendment, the CITY
must propose the modification as a Major Amendment in accordance with applicable
Federal and State laws and regulations. The Wildlife Agencies will not propose or approve
Minor Amendments to the Plan or this Agreement if they determine, that such Minor
Amendments would result in: 1) operations under the Plan that are significantly different
from those analyzed under NEPA, CEQA, ESA, and the NCCP Act in connection with the
original Plan; 2) adverse effects on the environment that are new or significantly different
from those analyzed in connection with the original Plan; or 3) additional Take not
analyzed in connection with the original Plan. Minor Amendments to the Plan and this
Agreement processed pursuant to the Plan and this Agreement may generally include, but
are not limited to, the following:
A. Corrections of typographic, grammatical, and similar editing errors in the
Plan documents, Agreement, or Permits that do not change the intended
meaning. Annual Reports shall include a summary of clerical changes made
to the Plan in the preceding calendar year;
B. Correction of any maps or exhibits to correct errors in mapping or to reflect
previously approved changes in the Plan, Agreement, or Permits. Annual
Reports shall include a summary of corrections to maps or exhibits made to
the Plan in the preceding calendar year;
C. Minor changes to survey, monitoring, or reporting protocols. Annual
Reports shall include a summary of changes made to survey, monitoring, or
reporting protocols in the preceding calendar year; and
D. Preserve boundary adjustments with equivalency findings as described in
Section 6.8 of the Plan, which may apply to projects where: 1) new
biological information is obtained through site-specific studies;
2) unforeseen engineering design opportunities or constraints not of the
CITY’s or applicants making are identified during the siting or design of
projects that require modification of the Preserve boundary; 3) a landowner
requests that a portion of or all of his or her property be included within the
Preserve boundary; and 4) minor changes to Plan maps to show actual
precise boundaries of conserved habitat, and which do not reduce the
acreage or quality of the habitat. All Preserve boundary line adjustments
must be disclosed in the appropriate CITY CEQA document, require
advance written approval from the Wildlife Agencies, and must be
accounted for in the CITY’s Annual Report. The CITY will provide written
notice of the proposed Preserve boundary adjustment and equivalency
D-48
43
findings to the Wildlife Agencies at least sixty (60) days prior to scheduling
the project for any public hearing consistent with Section 6.8.1 of the Plan.
Adjustments to the Preserve boundary can be made by Minor Amendment
to the NCCP/HCP, if the adjustment will result in equal or higher acreage
and biological value to the Preserve. The determination of biological value
of the proposed change is made by the City and must have the prior written
concurrence of the Wildlife Agencies. If necessary, the CITY will meet and
confer with the Wildlife Agencies prior to scheduling the project for any
public hearing to resolve any issues.
18.1.1 Additions to the Preserve. The CITY may make additions to the
approved Preserve as addressed in Section 4.4 of the Plan without a Major Amendment by
providing the Wildlife Agencies with the following: 1) A letter from the CITY agreeing to
the addition and specifying the status of the property (e.g., CITY parkland, HOA property);
2) An accurate map of the area to be added, showing the total acreage and current
vegetation coverage; and 3) An assessment provided by the CITY and PVPLC
demonstrating that adequate funding is available for managing the new preserve lands in
perpetuity. PVPLC shall coordinate with the CITY and Wildlife Agencies for approval of
each property proposed for inclusion into the Preserve.
18.2 Major Amendments. Major Amendments to the Plan or this Agreement
are those that require an amendment of the Permits in accordance with all legal
requirements, including but not limited to ESA, NEPA, the NCCP Act, and CEQA, and
the Wildlife Agencies’ Permit regulations. Any habitat losses that propose to exceed the
maximum habitat loss acreages noted for each Covered CITY Project/Activities or Private
Project can only be approved through an amendment. Such amendments must be approved
in writing by the Wildlife Agencies and the CITY. Coordination with the Wildlife Agencies
is required for a Major Amendment, and the Wildlife Agencies must be notified as soon as
the local jurisdiction confirms that an amendment is warranted. The CITY will provide
written notice of any proposed Major Amendment to the Wildlife Agencies at least sixty
(60) days prior to scheduling the action and/or project for any public hearing. Such notice
will include a copy of any required application for the proposed amendment, a statement
of the reason for the amendment and an analysis of its environmental effects, if any,
including any effects on Covered Species. As described in Section 6.8.2 of the Plan, Major
Amendments include, but are not limited to: 1) An annexation of land that requires Take
Authorizations for development, and is not covered by an existing NCCP/HCP and
associated Take Authorizations, or a substantive variation in design or implementation
from an existing NCCP/HCP; 2) Land excluded from a Plan at the time of approval, and
therefore not covered by Take Authorizations, but is later planned for development
purposes; 3) A substantive deviation in the proposed mitigation for Covered Projects or
Activities described in Section 5.3 of the Plan, including but not limited to deviations in
the identified area and dimensions of potentially dedicated Preserve that is not equivalent
to the proposed Plan mitigation as determined by the Wildlife Agencies removal of lands
from conserved areas; 4) An increase in habitat impacts from any Covered Activity
described in Section 5.0 of the Plan; 5) Major changes in conservation levels or Preserve
design; 6) Removal of lands from conserved areas; 7) Reconfiguration of the Preserve
D-49
44
system resulting in a decrease of acreage or quality of habitat as determined by the Wildlife
Agencies; 8) Additions to the list of Covered Species under the Permits (consistent with
Section 6.8.4 of the Plan); or 9) Substantial changes to the implementing regulations upon
which this NCCP/HCP is based on including CEQA, the General Plan, local zoning
ordinances, etc.
18.2.1 Process for Adding Species to Covered Species List. Consistent
with Section 6.8.4 of the Plan, if a species not on the Covered Species list is proposed for
listing pursuant to the ESA or CESA or a listed species not on the Covered Species list is
discovered in the NCCP/HCP Plan Area, the Wildlife Agencies will determine whether
Additional Conservation Measures, beyond those prescribed by the NCCP/HCP, are
necessary to adequately protect the species. If no such measures are necessary, the species
will be added to the Permits, following application by the CITY for a Major Amendment.
If the conservation measures already contained in the Plan are not sufficient to meet Permit
issuance standards under ESA and the NCCP Act, then upon written request by the CITY,
the USFWS and CDFW will use their reasonable efforts to provide technical assistance to
the CITY to identify Additional Conservation Measures necessary to add such species to
the list of Covered Species. In developing Additional Conservation Measures, the Parties
will first look to habitat management practices and enhancement opportunities within the
Preserve using existing management resources, provided the redirection of such resources
would not adversely affect any Covered Species.
If these options are not adequate to meet the species’ conservation requirements, the
Wildlife Agencies will provide technical assistance to the CITY in developing additional
measures necessary to add the species to the Covered Species list. If conservation measures
necessary to add the species to the Covered Species list are identified when or after the
species is proposed for listing, the CITY (or other Third-Party Participants) and the PVPLC
shall follow the planned response to Changed Circumstances identified in Section 6.10.2
of the Plan, but will not be required to approve or implement these conservation measures
until such time as the species is listed.
18.3 Annexations. For annexations where no take authorization is required
because the lands do not contain Covered Species or habitat, the CITY shall ensure that the
proposed annexations are consistent with the NCCP/HCP requirements and that the project
design will not result in impacts to the Preserve. Proposed annexation projects shall be
reviewed and approved by the CITY. No consultation with the Wildlife Agencies is
required for this process and such lands and project shall not be covered under the CITY’s
existing take authorizations.
In the case of annexations of land that require take authorizations of Covered Species, one
of the following processes shall be required depending on whether the lands to be annexed
are covered by an existing, operative NCCP/HCP and Federal and State Permits: 1) A
Major Amendment to the Plan and amendment of the Take authorizations to cover the
annexed lands; 2) If the lands proposed for annexation are covered by another approved
NCCP/HCP and Federal and State Permits, transfer of that portion of the take
authorizations applicable to the annexation lands to the CITY and PVPLC accompanied by
D-50
45
a written commitment by the CITY and PVPLC to fund and implement the same or
equivalent take avoidance, minimization, and mitigation measures applicable to the lands
to be annexed under the original take authorizations. This process could also apply to de-
annexation from another jurisdiction that has an existing, operative NCCP/HCP and
Federal and State Permits; 3) If the lands to be annexed will require take authorizations for
any species that is not covered under the original plan or under the CITY’s Permits, then a
Major Amendment to the CITY’s NCCP/HCP and Permits shall be required.
19.0 ENVIRONMENTAL REVIEW
19.1 Federal Law - NEPA. Issuance of a section 10(a)(1)(B) Permit to the
CITY by USFWS is an action subject to NEPA. USFWS is the lead agency for the Plan
under NEPA. The Plan has been evaluated pursuant to NEPA. An Environmental
Assessment has been prepared pursuant to NEPA.
19.2 State Law - CEQA. Implementation and approval of the Plan by CDFW
is an action subject to CEQA. The CITY is the lead agency for the Plan under CEQA. The
Plan has been evaluated pursuant to CEQA. The CITY has prepared an Environmental
Impact Report (EIR/SCH#2003071008) and related addendums in accordance with CEQA
requirements. CDFW is a responsible CEQA agency for purposes of approving and
permitting or “authorizing” the Plan under the NCCP Act.
20.0 SUSPENSION OR REVOCATION OF PERMITS
20.1 Federal Permit
20.1.1 Federal Permit Suspension: The USFWS may suspend the Federal
Permit, in whole or in part, for cause in accordance with the laws and regulations in force
at the time of such suspension. (See 50 C.F.R. §§13.27-13.29, 17.22(b) and 17.32(b)).
However, except where the USFWS determines emergency action is necessary to avoid
irreparable harm to a Covered Species, it will not suspend the Federal Permit without first
requesting the Permittee to take appropriate remedial actions, if any such actions are
available, and providing the Permittee with written notice of the facts or conduct which
may warrant the suspension, and an adequate and reasonable opportunity, including, where
appropriate, use of the voluntary dispute resolution process outlined in Section 22 of this
Agreement, to demonstrate why suspension is not warranted.
20.1.2 Reinstatement of Suspended Federal Permit: In the event the
USFWS suspends the Federal Permit, in whole or in part, as soon as practicable, and if
possible within ten (10) days after such suspension, the USFWS shall confer with the
Permittee concerning actions, if any, that would allow the suspension to be lifted. After
conferring with the Permittee, the USFWS shall identify reasonable specific actions, if any,
necessary to effectively redress the suspension. In making this determination the USFWS
will consider the requirements of the ESA, regulations issued thereunder, the conservation
needs of the Covered Species, the terms of the Federal Permit and any comments or
recommendations received from the Permittee. As soon as practicable, and if possible
D-51
46
within thirty (30) days after the conference, the USFWS shall send the Permittee written
notice of any available, reasonable actions necessary to effectively redress the suspension.
Upon Permittee’s timely and acceptable performance of such actions, the USFWS will
promptly reinstate the Federal Permit. It is the general intent of the Parties that in the event
of a total or partial suspension of the Federal Permit, and provided such action is
appropriate in light of the circumstances that resulted in the suspension, the Parties will act
expeditiously and cooperatively to reinstate the Federal Permit.
20.1.3 Surrender or Revocation of the Federal Permit: Permittee may
withdraw from the Federal Permit as provided in Section 22 by surrendering the Federal
Permit to the USFWS in accordance with the regulations of the USFWS in force on the
date of such surrender. (These regulations are currently codified at 50 C.F.R. §§
17.22(b)(7) and 17.32(b)(7) and by their express terms apply in place of 50 C.F.R. § 13.26
to the extent of any conflict). In addition, the USFWS may revoke the Federal Permit for
cause. (These regulations are currently codified at 50 C.F.R. §§ 13.28, 17.22(b)(8) and
17.32(b)(8)). Upon surrender or revocation of the Federal Permit, no further Take shall be
authorized under the Permit. Notwithstanding surrender of the Federal Permit by Permittee
or revocation of the Federal Permit by the USFWS, the Permittees will remain obligated to
fulfill any existing and outstanding minimization and mitigation measures required under
the Plan, this Agreement, and the Federal Permit for any Take that occurred prior to
surrender or revocation. A surrendered Federal Permit shall be deemed cancelled only upon
a determination by the USFWS that such minimization and mitigation measures have been
implemented.
20.1.4 Responsibility of the United States: Nothing contained in this
Agreement is intended to or shall be construed as a waiver of the sovereign immunity of
the United States, or is intended to or shall be construed to, limit the authority of the United
States government to seek civil or criminal penalties or otherwise fulfill its enforcement
responsibilities under the ESA or other applicable law.
20.2 The State Permit
20.2.1 Permit Suspension. In the event of any material violation of the
Permit by the CITY or PVPLC, as determined by CDFW, the CDFW may suspend the
NCCP Permit in whole or in part, provided, however, that it may not suspend the NCCP
Permit without first: 1) requesting that the CITY or PVPLC take appropriate remedial
actions; and 2) providing the CITY or PVPLC with written notice of the facts or conduct
which may warrant the suspension and an adequate and reasonable opportunity for the
CITY or PVPLC to demonstrate why suspension is not warranted or to take steps necessary
to cure the violation.
20.2.2 Reinstatement of Suspended Permit. In the event the CDFW
suspends the Permit in whole or in part, as soon as possible but no later than ten (10)
working days after such suspension, the CDFW shall meet and confer with the CITY or
PVPLC concerning how the violation or breach that led to the suspension can be remedied.
At the conclusion of any such conference, the CDFW shall identify specific actions, if
D-52
47
available, that are necessary to effectively redress the violation or breach. In making this
determination the CDFW shall consider the requirements of the NCCP Act, regulations
issued thereunder, the conservation needs of the Covered Species, the terms of the Permit
and of this Agreement, and any comments or recommendations received during the meet
and confer process. As soon as possible, but no later than thirty (30) working days after the
conference, the CDFW shall send the CITY or PVPLC written notice of the actions, if
available, that are necessary to effectively redress the violation or breach. Upon full
performance of such necessary actions, the CDFW shall immediately reinstate the Permit
or suspended portions thereof. It is the intent of the Parties that in the event of any
suspension of the Permit all Parties shall act expeditiously and cooperatively to reinstate
the Permit.
20.2.3 Permit Revocation or Termination.
a. The CDFW may only revoke or terminate the Permit for a violation of
the Permit or material breach of this Agreement by the CITY or PVPLC,
and only if the CDFW determines in writing that: 1) such violation or
breach cannot be effectively redressed by other remedies or
enforcement action; or 2) revocation or termination is required to avoid
jeopardizing the continued existence of a Covered Species and/or to
fulfill a legal obligation of the CDFW under the NCCP Act.
b. The CDFW agrees that it will not revoke or terminate the Permit without
first: 1) requesting that the CITY or PVPLC take appropriate remedial
action, and 2) providing the CITY or PVPLC with notice in writing of
the facts or conduct which warrant the revocation or termination and the
opportunity [not less than sixty (60) working days] to demonstrate or
achieve compliance with the NCCP Act, the Permit, and this
Agreement.
20.2.4 Responsibility of the State of California. Nothing contained in this
Agreement is intended to limit the authority of the State of California to seek civil or
criminal penalties or otherwise fulfill its enforcement responsibilities under CESA, the
NCCP Act, the NPPA, or other provisions of the California Fish and Game Code, or other
applicable law.
21.0 TERMINATION OF PERMIT
Upon ninety (90) working days written notice to USFWS and CDFW, the CITY and/or
PVPLC may surrender the Permits and unilaterally withdraw from this Agreement.
Consistent with the requirements of 50 C.F.R. §§ 17.32(b)(7) and 17.22(b)(7), the CITY
shall provide written evidence to the Wildlife Agencies that the CITY has complied with
all Take minimization and mitigation obligations incurred under the Permits in full
compliance with the Plan and this Agreement up to the date of withdrawal.
D-53
48
Notwithstanding surrender of the Permits, the CITY shall remain obligated to minimize
and fully mitigate for all Take that occurred under the Permits up to the date of when the
Permits were surrendered. Such mitigation obligations includes the on-going duty to carry
out all of its long-term management and monitoring obligations assumed under the Plan,
the Permits, and this Agreement with respect to habitat conserved/managed, or required to
be conserved/managed, under the Plan, including lands conserved or required to be
conserved under the PHMP, prior to the CITY’s surrender of the Permits and withdrawal
from the Agreement.
On and after the date of the CITY’s surrender of the Permits and withd rawal from this
Agreement, no additional Take under the Permits shall be authorized, except for Take
resulting from Covered Activities that were approved by the CITY prior to surrender of the
Permits in conformance with the Plan and Permits and for which all minimization and
mitigation obligations have been satisfied or are assured. In particular, Take associated
with land development Covered Activities, approved by the CITY, and for which
mitigation has been assured as provided in Sections 4.0 and 5.0 of the Plan shall continue
to be authorized under the terms of the Permits provided the CITY continues to carry out
its obligations under this Agreement, the Plan, and the Permits with respect to such Take.
In accordance with 50 C.F.R. §§ 17.22(b)(7) and 17.32(b)(7), USFWS shall cancel the
Federal Permit only upon its written determination that all Take authorized under the
surrendered Permit has been minimized and mitigated in accordance with the terms of the
Plan, this Agreement, and the Permit.
22.0 DISPUTE RESOLUTION
The Parties recognize that disputes concerning implementation of, compliance with, or
termination of this Agreement, the Plan, and the Permits may arise from time to time. The
Parties agree to work together in good faith to resolve such disputes, using the informal
dispute resolution procedures set forth in this section, or such other procedures upon which
the Parties may later agree. However, if at any time any Party determines that
circumstances so warrant, it may seek any available remedy without waiting to complete
informal dispute resolution.
22.1 Dispute Resolution Process. Unless the Parties agree upon another dispute
resolution process, or unless an aggrieved Party has initiated administrative proceedings or
suit in federal court as provided in this section, the Parties may use the following process
to attempt to resolve disputes:
A. The aggrieved Party will notify the other Parties of the provision that may
have been violated, the basis for contending that a violation has occurred,
and the remedies it proposes to correct the alleged violation.
B. The Party alleged to be in violation will have thirty (30) days, or such other
time as may be agreed, to respond. During this time it may seek clarification
of the information provided in the initial notice. The aggrieved Party will
D-54
49
use its best efforts to provide any information then available to it that may
be responsive to such inquiries.
C. Within thirty (30) days after such response was provided or was due,
representatives of the Parties having authority to resolve the dispute will
meet and negotiate in good faith toward a solution satisfactory to all Parties,
or will establish a specific process and timetable to seek such a solution.
D. If any issues cannot be resolved through such negotiations, the Parties will
consider non-binding mediation and other alternative dispute resolution
processes and, if a dispute resolution process is agreed upon, will make
good faith efforts to resolve all remaining issues through that process.
23.0 MISCELLANEOUS PROVISIONS
23.1 Incorporation of the NCCP/HCP. The Plan and each of its provisions are
intended to be and by this reference are incorporated herein. Notwithstanding such
incorporation, it is acknowledged by the parties that the Plan was drafted by the Permittee
(CITY) and submitted to the USFWS and CDFW in support of applications for Federal
and State Permits. Characterizations, analyses, and representations in the Plan, and in
particular, characterizations, analyses and representations in the Plan of Federal or State
laws, regulations and policies, represent the views of the Permittee and shall not control
the administration of the Permits by the USFWS and CDFW in accordance with Federal
and State laws, regulations and policies. In the event of any inconsistency between the Plan
and this IA, the provisions of the IA control. Similarly, in the event of any inconsistency
between the HCP or IA and the Federal and State Permits, the Permits control.
23.2 Changes in Environmental Laws. It is acknowledged by the Parties that
through acceptance of the Permits, the Permittees commit to perform substantial avoidance,
minimization, mitigation, conservation, and management measures as set forth in the Plan
and this Agreement. If there is a change in, or an addition to, any Federal or state law
governing or regulating the impacts of Covered Projects or Covered Activities on Covered
Species, including, but not limited to, the ESA, NEPA, NCCP Act, CESA, and CEQA, the
Wildlife Agencies, to the extent consistent with governing law, shall give due consideration
to the measures required under the Plan in applying the new laws and regulations to the
Permittees.
23.3 Governing Law. The terms of this Agreement shall be governed by and
construed in accordance with the Federal and State Permits, NCCPA, the ESA and other
applicable Federal and State law. In particular nothing in this Agreement limits or is
intended to limit the authority of the USFWS to seek penalties or otherwise fulfill its
enforcement or other responsibilities under the ESA or CDFW under the NCCP Act or
other applicable law. Moreover, nothing in this Agreement is intended to limit or diminish
the legal obligations and responsibilities of the USFWS as an agency of the Federal
government or of CDFW as an agency of the State of California. Nothing in this Agreement
D-55
50
shall limit the right or obligation of any Federal agency to engage in consultation required
under section 7 of ESA or other Federal law.
23.4 Reference to Regulations. Any reference in this Agreement, the Plan, or
the Permit to any regulation or rule of USFWS shall be deemed to be a reference to such
regulation or rule in existence at the time the action is taken. Any reference in this
Agreement, the Plan, or the State Permit to any regulation or rule of CDFW shall be deemed
to be in reference to such regulation or rule in existence at the time the action is taken.
23.5 Applicable Laws. All activities undertaken pursuant to this Agreement,
the Plan, or the Permits must be in compliance with all applicable State and Federal laws
and regulations.
23.6 Independent State and Federal Permits. The State and Federal Permits
are independent such that revocation of the State Permit or of the Federal Permit does not
automatically cause revocation of the other Permit.
23.7 Successors and Assigns. Any Assignment or other transfer of the Permits,
including this Agreement, shall be governed by USFWS’s and CDFW’s applicable
regulations at the time of the intended transfer.
23.8 Notice. All notices, demands, or communications from one Party to another
may be personally delivered, or sent by facsimile, electronic mail, U.S. Mail, or recognized
overnight delivery service, to the addresses in this section and shall be effective at the time
of receipt of the personal delivery, or the receipt of the facsimile, electronic mail, or
overnight delivery, or five (5) days after deposit in the U.S. Mail; provided, however, that
any communication described in this Agreement that requires a response within a limited
period of time must be sent by certified mail to initiate that time period. Notices may be
delivered by facsimile or other electronic means, provided that they are also delivered
personally or by certified mail. Notices shall be transmitted so that they are received within
the specified deadlines. Any Party may change the address to which such notices, demands,
or other communications may be sent by giving the other Parties written notice of such
change.
CITY: City Manager
Office of the City Manager
30940 Hawthorne Boulevard
Rancho Palos Verdes, California 90275
Telephone: (310) 377-0360
Fax: (310) 544-5291
CDFW: South Coast Regional Manager
California Department of Fish and Wildlife
3883 Ruffin Road
San Diego, California 92123
Telephone: (858) 467-4201
D-56
51
Fax: (858) 467-4299
USFWS: Field Supervisor
Carlsbad Fish and Wildlife Office
U.S. Fish and Wildlife Service
2177 Salk Avenue, Suite 250
Carlsbad, California 92008
Telephone: (760) 431-9440
Fax: (760) 431-5901
PVPLC: President Chairman of the Board
Palos Verdes Peninsula Land Conservancy
916 Silver Spur, Suite 207
Palos Verdes Peninsula, California 90274
Telephone: (310) 541-7613
Fax: (310) 541-7623
23.9 Entire Agreement. This Agreement, together with the Plan, shall be
incorporated as terms and conditions of the Permits.
23.10 Availability of Federal and State Appropriations. Implementation of
this Agreement and the Plan by the USFWS is subject to the requirements of the Anti-
Deficiency Act and the availability of appropriated funds. Nothing in this Agreement will
be construed by the Parties to require the obligation, appropriation, or expenditure of any
money from the U.S. Treasury. The Parties acknowledge that the USFWS will not be
required under this Agreement to expend any Federal agency's appropriated funds unless
and until an authorized official of the agency affirmatively acts to commit to such
expenditures as evidenced in writing.
Implementation of this Agreement and the Plan by CDFW is subject to the availability of
appropriated funds. Nothing in this Agreement will be construed by the Parties to require
the obligation, appropriation, or expenditure of any money from the Treasury of the State
of California. The Parties acknowledge and agree that CDFW will not be required under
this Agreement to expend any state appropriated funds unless and until an authorized
official of that agency affirmatively acts to commit such expenditure as evidenced
in writing.
23.11 Duplicate Originals. This Agreement may be executed in any number of
duplicate originals. A complete original of this Agreement shall be maintained in the
official records of each of the Parties hereto.
23.12 No Third-Party Beneficiaries. Without limiting the applicability of rights
granted to the public pursuant to the ESA, CESA, the NCCP Act, or other Federal or State
law, this Agreement shall not create any right or interest in any third-party, including any
member of the public, as a third-party beneficiary hereof, nor shall it authorize any third
party to maintain a suit at law or equity regarding this Agreement. The duties, obligations,
D-57
52
and responsibilities of the Parties to this Agreement with respect to third parties shall
remain as imposed under existing Federal or State law.
23.13 Due Authorization. The CITY warrants that its signatory is authorized to
execute this Agreement on behalf of the CITY.
23.14 Counterparts. This Agreement may be executed in counterparts. This
Agreement shall become operative as soon as one counterpart hereof has been executed by
each member. The counterparts so executed shall constitute one Agreement
notwithstanding that the signatures of all members do not appear on the same page.
23.15 Agreement is not an Enforceable Contract. Notwithstanding any
language to the contrary in this Agreement, this Agreement is not intended to create and
shall not be construed to create an enforceable contract between Permittees and the USFWS
under law with regard to the Permit, and neither the USFWS nor Permittees shall be liable
in damages to each other or to any other third party for any performance or failure to
perform any obligation identified in this Agreement. The sole purpose of this Agreement
as between the USFWS and Permittees is to clarify the provisions of the Plan and the
processes the Parties intend to follow to ensure successful implementation of the Plan in
accordance with the Federal Permit and applicable federal law. Notwithstanding the
foregoing, the USFWS intends to follow the provisions of this Agreement in administering
the Permit, and Permittee intends to follow the provisions of this Agreement in
implementing the Plan. This Agreement will be incorporated by reference into the Federal
Permit.
D-58
53
IN WITNESS WHEREOF, THE PARTIES have executed this Agreement to be in effect
as of the Effective Date.
Date: , 2019 Rancho Palos Verdes
By
Mayor
Date: , 2019 California Department of Fish and Wildlife
By
Deputy Director
Habitat Conservation Division
Date: , 2019 United States Fish and Wildlife Service,
Region 8
By
Assistant Regional Director
Date: , 2019 Palos Verdes Peninsula Land Conservancy
By
President of the Board
D-59
54
EXHIBIT A
Model Certificate of Inclusion
The United States Fish and Wildlife Service and the California Department of Fish
and Wildlife have issued Permits pursuant to the Federal Endangered Species Act and the
California Natural Community Conservation Planning Act (collectively, “Permits”)
authorizing “Take” of certain species in accordance with the terms and conditions of the
Permits, the City of Rancho Palos Verdes’ NCCP/HCP, and the associated Implementing
Agreement. Through execution of this Certificate of Inclusion, you, [insert entity name]
agree to implement all applicable terms and conditions of the Permits, which include the
City of Rancho Palos Verdes’ (City) NCCP/HCP, and the associated Implementing
Agreement and to submit to the direct legal control of the City for purposes of the City’s
enforcement of all applicable terms and conditions of the Permits, against you with regard
to the Take of certain species resulting from the [insert Covered Project or Covered
Activity as applicable] identified below.
As the owner/operator of the property depicted on Exhibit “1”, attached hereto and
incorporated herein by this reference, you are extended the protection of the Permits for
the proposed activities as set forth in Exhibit “2”, with respect to any Take of species
covered by the City of Rancho Palos Verdes’ NCCP/HCP. In the event that you use the
property depicted on Exhibit “1” for other purposes without the express consent of the
Permittee, or fail to follow the applicable requirements of the Permits, Take Authorization
under the Permits will automatically cease. Such Authorization is provided as described
in the Permits, including the City of Rancho Palos Verdes’ NCCP/HCP, and the
Implementing Agreement. By signing this Certificate of Inclusion, you signify your
election to receive Take Authorization under the Permits in accordance with the terms and
conditions thereof. Further, by signing this Certificate of Inclusion you agree to provide
reasonable access to the property depicted on Exhibit 1 to the City, the United States Fish
and Wildlife Service pursuant to 50 C.F.R. § 13.21(e)(2) and the California Department of
Fish and Wildlife as necessary to monitor your compliance with the applicable terms of
the Permits, the NCCP/HCP and the Implementing Agreement.
Coverage under the Permits will become effective upon receipt of the executed
Certificate of Inclusion by City of Rancho Palos Verdes. In the event that the subject
property is sold or leased, the buyer or lessee must be informed of these provisions and
execute a new Certificate of Inclusion.
_________________________ _________________________
_________________________ Signature
Address _________________________
_________________________ Title (if any)
Phone
_________________________
City of Rancho Palos Verdes Representative
D-60
55
EXHIBIT B
City Interim Resource Protection Ordinance
Chapter 17.41 - COASTAL SAGE SCRUB CONSERVATION AND MANAGEMENT
Sections:
17.41.010 - Short title.
This chapter shall be known and may be cited as the "Rancho Palos Verdes Coastal
Sage Scrub Conservation Ordinance."
(Ord. 420 § 2 (part), 2005: Ord. 419U § 2 (part), 2005)
17.41.020 - Purpose and intent.
This chapter establishes policies, regulations, and standards necessary to ensure that
the city will continue to realize the benefits provided by its natural environment. The city
council finds and declares that it is necessary to adopt this chapter to pro mote the public
health, safety and general welfare by providing requirements and procedures that reduce
adverse impacts on threatened or endangered species, which could be directly created or
indirectly induced by the unregulated removal of CSS habitat and other vegetation that is
occupied by threatened or endangered species, regardless of whether such removal occurs
in connection with proposed and existing developments. Coastal sage scrub habitat has
been designated by the United States Fish and Wildlife Service as critical habitat essential
for the continued survival of, among other species, the coastal California gnatcatcher.
Therefore, this chapter establishes a regulatory process for approval of weed abatement
and other activities undertaken on properties that are greater than two acres in size and
contain CSS habitat to ensure that such activity does not jeopardize the continued viability
of any endangered or threatened species due to the removal of, or impact to, occupied
habitat.
(Ord. 420 § 2 (part), 2005: Ord. 419U § 2 (part), 2005)
17.41.030 - Application of chapter.
This chapter shall apply to all properties in the city that contain CSS habitat, as depicted
on the city's most current NCCP map, including any areas subsequently annexed by the
city, unless state or federal law prescribes otherwise. Nothing in this chapter shall be
construed to authorize the removal of any plant, including without limitation CSS, which
would constitute a violation of any other applicable state or federal law or regulation,
including without limitation, the Endangered Species Act.
Nothing in this chapter shall be construed to authorize the removal of any plant,
including without limitation CSS, which would constitute a violation of any other
applicable state or federal law or regulation, including without limitation, the Endangered
Species Act.
(Ord. 420 § 2 (part), 2005: Ord. 419U § 2 (part), 2005)
D-61
56
17.41.040 - Definitions.
For the purposes of this chapter, the following definitions shall apply unless the context
clearly requires otherwise:
A. "City" means the city of Rancho Palos Verdes.
B. "City council" means the city council of the city of Rancho Palos Verdes.
C. "Coastal sage scrub or coastal sage scrub plant community (CSS)" means a
vegetation community composed of relatively low-growing summer deciduous
and succulent plants. Coastal sage scrub is the more general name for vegetation
communities known as maritime succulent scrub, Diegan (or Riversidian) sage
scrub, southern coastal bluff scrub, inland sage scrub, alluvial fan scrub, and
mixtures of vegetation communities containing coastal sage elements and
providing suitable gnatcatcher habitat. Characteristic plants of this community
include, but are not limited to, California sagebrush (Artemisia californica), ashy-
leaf buckwheat (Eriogonum cinereum), California sunflower (Encelia
californica), coyote brush (Baccharis pilularis), California buckwheat
(Eriogonum fasciculatum), lemonadeberry (Rhus integrifolia), purple sage
(Salvia leucophylla), black sage (Salvia mellifera), prickly pear and cholla cactus.
D. "Department of Fish and Game" means the California Department of Fish
and Game.
E. "Director" means the Director of Planning, Building and Code Enforcement or
Community Development Director for the city of Rancho Palos Verdes.
F. "Exotic Woodland vegetation" means a vegetation category identified in the city's
NCCP that consists of nonnative trees and shrubs. Some of the introduced species
may exist as ornamental vegetation that is used in landscaping and some are
invasive and have dispersed into grassland and native habitats. Exotic species
include everblooming acacia (Acacia longifolia), Sydney golden wattle (Acacia
cyclops), Peruvian pepper tree (Schinus molle), Brazilian pepper tree (Schinus
terebenthifolia), black locust, (Robinia pseudoacacia), myoporum (Myoporum
laetum), gum tree (Eucalyptus spp.) and pines (Pinus spp.).
G. "Fish and Wildlife Service (FWS)" means the United States Fish and Wildlife
Service.
H. "Gnatcatcher" means the coastal California gnatcatcher (Polioptila californica),
a small insectivorous songbird that inhabits almost exclusively the coastal sage
scrub plant community, although it is found in other plant communities. The
gnatcatcher has been listed as a threatened species under the federal endangered
species act. The continued existence of the gnatcatcher is threatened by habitat
loss and fragmentation occurring in conjunction with urban and agricultural
development.
I. "Habitat modification" means altering, clearing, cutting, destroying, relocating,
or removing any coastal sage scrub, or any other act, which causes, or may be
reasonably expected to cause the reduction in habitat value of a plant that makes
up the coastal sage scrub plant community, including weed abatement activities.
"Habitat modification or removal," includes, but is not limited to, damaging the
D-62
57
plant or root systems by machinery, storage of materials, or soil compaction,
excessive pruning, weed abatement, paving with concrete, asphalt, or other
impervious material, in the immediate vicinity of the coastal sage scrub, or in a
manner which may reasonably be expected to kill a coastal sage scrub plant
community, using herbicides to control or kill coastal sage scrub vegetation, or
excessive or inadequate irrigation.
J. "Natural communities conservation plan" or "NCCP" means a plan for the
conservation of natural communities using an ecosystem approach prepared
pursuant to the State of California's Natural Communities Conservation Planning
Act.
K. "Weed abatement" means, for the purposes of this chapter only, the removal of
vegetation by any means, on any property in the city that is greater than two acres
in size and contains CSS habitat, as depicted on the city's most current NCCP
map, but excluding tree trimming and removal or maintenance of "exotic
woodland" vegetation that does not constitute or contain CSS and is not occupied
by an endangered or threatened species.
(Ord. 420 § 2 (part), 2005: Ord. 419U § 2 (part), 2005)
17.41.050 - Prohibited conduct.
It is unlawful for any person, firm, business, corporation, or any other entity to perform
habitat modification work on any CSS habitat, or perform weed abatement on any property
greater than two acres in size that is within the geographical limits of the city and contains
CSS habitat, as depicted on the city's most current NCCP map, without first complying
with the provisions of this chapter.
(Ord. 420 § 2 (part), 2005: Ord. 419U § 2 (part), 2005)
17.41.060 - Exemptions.
The provisions of this chapter shall not apply to any of the following activities,
provided that the requirements of this chapter are satisfied:
A. Removal of CSS or any other form of habitat modification or weed abatement for
the purpose of fire protection, such as the establishment of fuel modification
zones and fire breaks, thinning or brush clearing, provided:
1. Such actions follow a regulation, a written plan or a written order that is
issued or required by the Los Angeles County Fire Department or by
another governmental entity; or
2. Such actions have been taken on a regular basis [at least once every three
(3) years] since June 23, 1997, within an area no larger than what is depicted
on the city's official aerial maps on file with the city dated June 23, 1997,
as having been cleared previously.
B. Removal of CSS or any other form of habitat modification required by any written
local, county, state, or federally mandated health and safety order; provided such
D-63
58
removal or clearing of vegetation follows a regulation, written plan or written
order approved and required by the applicable city, state or federal government.
C. Removal of CSS or any other form of habitat modification performed by the city
or by another governmental entity or by a utility in response to an emergency, in
order to protect the public health and safety.
D. Loss of CSS that is the result of a natural event, such as landslide, fire or flood.
E. Removal of CSS or other non-CSS vegetation pursuant to a validly issued 4(d)
permit or 10(a) permit, which shall be provided to the director prior to the
commencement of the proposed habitat removal or modification.
(Ord. 420 § 2 (part), 2005: Ord. 419U § 2 (part), 2005)
17.41.070 - Application to the director.
A. An owner of a property within the city that is greater than two acres in size and
contains CSS habitat, as depicted on the city's most current NCCP map, who
wishes to perform the following weed abatement of non-CSS vegetation, which
is not exempt from the provisions of this chapter pursuant to Section 17.41.060
of this chapter, first must apply to the director for approval. The party seeking
approval pursuant to this section shall submit an application to the director along
with the following:
1. A plot plan generally depicting the subject property and the area(s) where
the non-CSS vegetation is proposed to be removed, identifying all property
lines and the location of any and all CSS on the property and its habitat
value;
2. Evidence and documentation establishing whether any vegetation on the
site is occupied by endangered or threatened species;
3. A current biological survey identifying those areas of the property that
contain CSS and those areas that contain no CSS. The biological survey
shall demonstrate to the city's satisfaction that the areas of the property
where the work is to be performed are not occupied by threatened or
endangered species and that the proposed weed abatement will not "take" a
protected species under either the federal or state endangered species acts
and will not have an adverse impact on threatened or endangered species
located elsewhere on the property or on adjacent properties. The biological
survey shall be prepared by a qualified biologist, who has been certified by
either the California Department of Fish and Game or the United States Fish
and Wildlife Service to perform gnatcatcher surveys, and shall be prepared
during the six (6) month period preceding the date when the proposed
vegetation removal is to commence; and
4. A payment of one thousand five hundred dollars to establish a trust deposit
to pay for the city's review of the submitted biological survey by the city's
consulting biologist.
D-64
59
B. Upon receipt of an application to perform weed abatement on non-CSS vegetation
pursuant to subsection A of this section, the director shall forward the submitted
biological survey to the city's consulting biologist for review. The director shall
review the application, the biological survey, the city's consulting biologist's
report on the submitted biological study and the accompanying material. Within
thirty (30) calendar days after receiving the application, the director shall take one
of the following actions:
1. If the information provided to the director is incomplete, the director shall
so notify the property owner and shall not continue processing the request
until a complete request is submitted;
2. If the information provided by the property owner demonstrates to the
satisfaction of the director that the proposed weed abatement complies with
the provisions of this section, the director shall prepare environmental
review documents pursuant to the provisions of the California
Environmental Quality Act ("CEQA"). If any interested party submits
substantial evidence that the project may cause a significant effect on the
environment, the director shall require the preparation of an Environmental
Impact Report ("EIR") pursuant to the requirements of CEQA. If there is no
substantial evidence of a potential significant effect on the environment,
then the director shall prepare a negative declaration or mitigated negative
declaration, unless the director determines that the proposed action is
exempt from the provisions of CEQA. The director shall obtain public
comments and comments from other agencies (including DFG and FWS) as
required by CEQA. If the EIR, mitigated negative declaration, or negative
declaration determines that the proposed action would not cause a
significant effect on the environment, or if the certified EIR is accompanied
by the approval of a statement of overriding considerations, the director
shall issue a written notice to proceed to the property owner and impose any
conditions necessary to ensure that the weed abatement is carried out in
compliance with this chapter; or
3. If the director determines that the proposed activity does not comply with
the provisions of this section, no weed abatement activities shall be
conducted unless and until a 4(d) or 10(a) permit is obtained.
(Ord. 420 § 2 (part), 2005: Ord. 419U § 2 (part), 2005)
17.41.080 - Appeal.
The applicant or any interested person (as defined in Section 17.96.990 of the city's
municipal code) may appeal a decision issued by the director pursuant to Section 17.41.070
of this chapter to the city council, pursuant to Chapter 17.80 (Hearing Notice and Appeal
Procedures) of this title. The property owner shall not take action to perform any weed
abatement activities authorized by the director's decision until the appeal period has been
exhausted.
(Ord. 420 § 2 (part), 2005: Ord. 419U § 2 (part), 2005)
D-65
60
17.41.090 - Violations and penalties.
A violation of any provision of this chapter is a misdemeanor punishable by a fine of
not more than one thousand dollars, or by imprisonment in the county jail for a period not
exceeding six (6) months, or by both such fine and imprisonment. Any person found to
have violated any provision of this chapter shall be deemed guilty of a separate and distinct
offense for each day, or portion thereof, during which such violation continues, and shall
be punishable accordingly. In addition to the foregoing, the city may require revegetation
work be performed by the violator, at a ratio to be determined by the director, and may
assess a fine in an amount necessary to assure that the CSS that was improperly removed
can be replaced and maintained for a minimum period of five years or until the CSS is
reestablished and sufficient to cover any other costs incurred by the city in achieving
compliance with this chapter. Further, the city shall not accept for processing, or grant
approval of, any application for development, use, permit, or other entitlement pursuant to
Titles 15, 16 or 17 of the municipal code until such time that the property owner has
complied with the provisions of this chapter and other applicable provisions of the
municipal code.
(Ord. 420 § 2 (part), 2005: Ord. 419U § 2 (part), 2005)
D-66
61
EXHIBIT C
Species Covered Under the Plan
Common Name Scientific Name Status
Aphanisma Aphanisma blitoides CNPS List 1B
South Coast Saltscale Atriplex pacifica CNPS List 1B
Catalina Crossosoma Crossosoma californicum CNPS List 1B
Island Green Dudleya Dudleya virens ssp. insularis CNPS List 1B
Santa Catalina Island Desert-
thorn
Lycium brevipes var. hassei CNPS List 1B
Woolly Seablite Suaeda taxifolia CNPS List 4
Palos Verdes Blue Butterfly Glaucopsyche lygdamus palosverdesensis FE
El Segundo Blue Butterfly Euphilotes battoides allyni FE
Coastal California Gnatcatcher Polioptila californica californica FT, NCCP Focal Species,
SSC
Cactus Wren Campylorhynchus brunneicapillus NCCP Focal Species, SSC
FE = Federally endangered
FT = Federally threatened
SSC = State Species of Concern
D-67
62
EXHIBIT D
Management Agreement Between the City and PVPLC
D-68
63
D-69
64
D-70
65
D-71
66
D-72
67
D-73
68
D-74
69
D-75
70
D-76
71
D-77
72
D-78
73
D-79
74
D-80
75
D-81
76
D-82
77
D-83
78
D-84
79
D-85
80
D-86
81
D-87
82
D-88
83
D-89
84
D-90
85
D-91
86
D-92
87
D-93
88
D-94
89
D-95
90
D-96
91
D-97
92
D-98
93
D-99
94
D-100
95
D-101
96
D-102
97
D-103
98
D-104
99
D-105
100
D-106
101
D-107
102
D-108
103
D-109
104
D-110
105
D-111
106
D-112
107
D-113
108
D-114
109
D-115
110
D-116
111
D-117
112
D-118
113
D-119
114
D-120
115
D-121
116
D-122
117
D-123
118
D-124
119
EXHIBIT E
Conservation Easement
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Palos Verdes Peninsula Land Conservancy
916 Silver Spur Road, Suite 207
Rolling Hills Estates, California 90274
Attn: Ms. Andrea Vona
[Space Above For Recorder’s Use Only]
APN:
Recording
Fee: Exempt pursuant to California
Government Code Section 27383
CONSERVATION EASEMENT DEED
(Including Third-Party Beneficiaries)
THIS CONSERVATION EASEMENT DEED REPLACES AND SUPERSEDES IN ITS
ENTIRETY THAT CERTAIN [CONSERVATION EASEMENT DEED] RECORDED AS
INSTRUMENT NO. ____________ IN THE OFFICIAL RECORDS OF LOS ANGELES
COUNTY]
THIS CONSERVATION EASEMENT DEED (“Conservation Easement”) is made this
_______day of ______________, 20__, by the CITY OF RANCHO PALOS VERDES, a
California municipal corporation (“City” or “Grantor”), in favor of THE PALOS VERDES
PENINSULA LAND CONSERVANCY, a California nonprofit public benefit corporation
(“Conservancy” or “Grantee”), hereinafter collectively referred to as the “Parties,” with
reference to the following facts:
R E C I T A L S
A. City is the owner in fee simple of certain real property located in the City of Rancho Palos
Verdes, County of Los Angeles, State of California, and more particularly described in
Exhibit 1, which is attached hereto and incorporated herein by this reference (the
“Property”).
B. The Property possesses wildlife and habitat values of great importance to Grantor, Grantee,
the State of California, Department of Fish and Wildlife (“CDFW”) and the United States
Fish and Wildlife Service (“USFWS”), the people of the State of California and the people
of the United States, collectively the “Wildlife Agencies”. The Property provides high
quality habitat for the California Gnatcatcher, the Coastal Cactus Wren, the El Segundo
Blue Butterfly and the Palos Verdes Blue Butterfly and contains Coastal Sage Scrub
D-125
120
(“CSS”) - habitat. Individually and collectively these wildlife and habitat values comprise
the “Conservation Values” of the Property.
C. The Property is part of the Habitat Reserve required to be preserved and managed in
perpetuity by Federal Endangered Species Act Incidental Take Permit TE-______and State
of California _______permit ______(collectively “Permits”) according to the Verdes
Natural Community Conservation Plan and Habitat Conservation Plan dated ________,
2018 (“NCCP/HCP”) and the [NCCP/HCP Implementation Agreement] (“IA”) dated
_________________, the terms of which are incorporated by reference in this
Conservation Easement. Grantor, Grantee, CDFW, and USFWS each has a copy of the
NCCP/HCP, the IA, and the Permits.
D. Grantee is authorized to hold conservation easements pursuant to Civil Code Section 815.3.
Specifically, Grantee is a tax-exempt nonprofit organization qualified under Section
501(c)(3) of the Internal Revenue Code of 1986, as amended, and is qualified to do business
in California, which has as its primary purpose the preservation of land in its natural, scenic,
and open space condition.
E. CDFW has jurisdiction, pursuant to Fish and Game Code Section 1802, over the
conservation, protection, and management of fish, wildlife, native plants and the habitat
necessary for biologically sustainable populations of those species, and CDFW is
authorized to hold conservation easements for these purposes pursuant to Civil Code
Section 815.3, Fish and Game Code Section 1348, and other provisions of California law.
F. USFWS, an agency within the United States Department of the Inter ior, has jurisdiction
over the conservation, protection, restoration and management of fish, wildlife, native
plants, and the habitat necessary for biologically sustainable populations of these species
within the United States pursuant to the Federal Endangered Species Act, 16 U.S.C. Section
1531, et seq., the Fish and Wildlife Coordination Act, 16 U.S.C. Sections 661-666c, the
Fish and Wildlife Act of 1956, 16 U.S.C. Section 742(f), et seq., and other provisions of
Federal law.
COVENANTS, TERMS, CONDITIONS AND RESTRICTIONS
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
and pursuant to California law, including Civil Code Section 815, et seq., Grantor hereby
voluntarily grants and conveys to Grantee a conservation easement in perpetuity over the Property.
1. Purposes. The purposes of this Conservation Easement are to ensure the Property
will be retained forever in its natural, restored or enhanced condition consistent with the habitat
protection requirements of the NCCP/HCP, IA, and Permits and to prevent any use of the Property
that will impair or interfere with the Conservation Values of the Property. Grantor intends that this
Conservation Easement will confine the use of the Property to activities that are consistent with
such purposes, including, without limitation, activities involving the preservation, restoration and
enhancement of native species and their habitats.
2. Grantee’s Rights. To accomplish the purposes of this Conservation Easement,
Grantor hereby grants and conveys the following rights to Grantee and to CDFW and USFWS,
each as a third-party beneficiary of this Conservation Easement:
(a) To preserve and protect the Conservation Values of the Property;
D-126
121
(b) To enter the Property at any reasonable time in order to monitor compliance with
and otherwise enforce the terms of this Conservation Easement, and for scientific research and
interpretive purposes by Grantee or its designees or Wildlife Agencies or its designees, provided
that neither Grantee nor Wildlife Agencies shall unreasonably interfere with Grantor’s authorized
use and quiet enjoyment of the Property;
(c) To prevent any activity on or use of the Property that is inconsistent with the
purposes of this Conservation Easement and to require the restoration of such areas or features of
the Property that may be damaged by any act, failure to act, or any use or activity that is inconsistent
with the purposes of this Conservation Easement;
(d) To require that all mineral, air and water rights as Grantee deems necessary to
preserve, protect and sustain the biological resources and Conservation Values of the Property shall
remain a part of and be put to beneficial use on the Property consistent with the purpo ses of this
Conservation Easement; and
(e) All present and future development rights appurtenant to, allocated, implied,
reserved or inherent in the Property; such rights are hereby terminated and extinguished, and may
not be used on or transferred to any portion of the Property, nor any other property adjacent or
otherwise.
3. All Inconsistent Rights Extinguished. All present and future development rights
appurtenant to, allocated, implied, reserved or inherent in the Property are hereby terminated and
extinguished, and may not be used on or transferred to any portion of the Property, nor any other
property adjacent or otherwise.
4. Prohibited Uses. Except (and only to the extent) the use or activity is a Reserved
Right under Section 6, any activity on or use of the Property not authorized in this Conservation
Easement is prohibited if that activity or use is inconsistent with the purposes of this Conservation
Easement. Without limiting the generality of the foregoing, the following uses and activities by
Grantor, Grantor’s agents, and third- parties, are expressly prohibited:
(a) Unseasonable watering; use of fertilizers, pesticides, biocides, herbicides or other
agricultural chemicals; weed abatement activities; incompatible fire protection activities; and any
and all other activities and uses which may adversely affect the purposes of this Conservation
Easement.
(b) Use of off-road vehicles and use of any other motorized vehicles except on existing
roadways;
(c) Agricultural activity of any kind, except that grazing for vegetation management
is permitted if done in accordance with a Wildlife Agencies-approved grazing or management plan
for the Property;
(d) Recreational activities except such passive recreational activities as are consistent
with the purposes of this Conservation Easement and the NCCP/HCP (e.g., horse riding, hiking,
bicycling, wildlife viewing);
(e) Commercial, industrial, residential or institutional uses;
D-127
122
(f) Any legal or de facto division, subdivision or partitioning of the Property;
(g) Construction, reconstruction or placement of any building, billboard or sign, or any
other structure or improvement of any kind, except signs for access control or education that will
not impair or interfere with the Conservation Values and are consistent with the purposes of this
Conservation Easement;
(h) Depositing or accumulation of soil, trash, ashes, refuse, waste, bio-solids or any
other materials;
(i) Planting, introduction or dispersal of non-native or exotic plant or animal species;
(j) Filling, dumping, excavating, draining, dredging, mining, drilling, removing or
exploring for or extracting minerals, loam, soil, sand, gravel, rock or other material on or below the
surface of the Property;
(k) Altering the surface or general topography of the Property, including building of
new roads, paving or otherwise covering the Property with concrete, asphalt or any other
impervious material;
(l) Removing, destroying, or cutting of native trees, shrubs or other vegetation, except
as required by law for: (1) fire breaks, (2) maintenance of recreational trails or roads that are
otherwise permitted under this Conservation Easement, or (3) prevention or treatment of disease;
(m) Manipulating, impounding or altering any natural water course, body of water or
water circulation on the Property, and activities or uses detrimental to water quality, including bu t
not limited to degradation or pollution of any surface or sub-surface waters;
(n) Without the prior written consent of Grantee, which Grantee may withhold for any
reason, transferring, encumbering, selling, leasing or otherwise separating the mineral, air or water
rights for the Property; changing the place or purpose of use of the water rights; abandoning or
allowing abandonment of, by action or inaction, any water or water rights, ditch or ditch rights,
spring rights, reservoir or storage rights, wells, ground water rights, or other rights in and to the use
of water historically used on or otherwise appurtenant to the Property, including but not limited to:
(1) riparian water rights; (2) appropriative water rights; (3) rights to waters which are secured under
contract with any irrigation or water district, to the extent such waters are customarily applied to
the Property; and (4) any water from wells that are in existence or may be constructed in the future
on the Property.
5. Grantor’s Duties. Grantor shall undertake all reasonable actions to prevent the
unlawful entry and trespass by persons whose activities may degrade or harm the Conservation
Values of the Property or that are otherwise inconsistent with this Conservation Easement. In
addition, Grantor shall undertake all necessary actions to perfect the rights of Grantee, CDFW and
USFWS under Section 2 of this Conservation Easement.
6. Reserved Rights. Grantor reserves to itself, and to its personal representatives,
heirs, successors, and assigns, all rights accruing from its ownership of the Property, including the
right to engage in or to permit or invite others to engage in all uses of the Property that are not
expressly prohibited or limited by, and are consistent with the purposes of this Co nservation
Easement. Grantor specifically reserves the right to conduct the following activities and uses on
the Property:
D-128
123
(a) The Covered City Projects proposed to take place on the Property, as described in
Sections 5.1 and 5.2 (including its subsections) and Table 5-1 of the NCCP/HCP, and Other
Covered Projects/Activities on the Property described in Sections 5.1 and 5.4 (including its
subsections) of the NCCP/HCP are permitted by this Conservation Easement during the term of the
NCCP/HCP, so long as such activities and any restoration required in connection with the activities
is carried out in accordance with all applicable requirements of the NCCP/HCP. No additional
Covered Projects/Activities will be permitted or undertaken on the Property which are not now
described in Sections 5.1, 5.2, and 5.4 (including their subsections).
(b) Following the expiration of the NCCP/HCP, all of the Projects and Activities
Covered by the NCCP/HCP that are expected to occur beyond the life of the NCCP/HCP are listed
in attached Exhibit 2. The Covered Projects and Activities listed in Exhibit 2 will be allowed so
long as such activities are carried out in accordance with the long-term management and monitoring
plan described in Section 8.2 of the NCCP/HCP, or if the Covered Projects and Activities will result
in take, in accordance with incidental take permits issued by the Wildlife Agencies. No additional
projects are permitted without the express consent of the Wildlife Agencies and the Conservancy,
such consent not to be unreasonably withheld where the proposed project is determined by the
Wildlife Agencies and the Conservancy to be both necessary for public safety and is designed
reasonably to avoid impacts upon habitat and species, and following compliance with all applicable
Federal and state laws, including the Federal and state endangered species acts and California
Natural Community Conservation Planning Act.
7. Adaptive Management. The NCCP/HCP allows for Adaptive Management of the
Property, recognizing that Adaptive Management is a key element of implementing effective
conservation programs. ‘Adaptive management’ means to use the results of new information
gathered through the monitoring program of the plan and from other sources to adjust management
strategies and practices to assist in providing for the conservation of covered species.” (Fish &
Game Code, § 2805, subd. (a).) Adaptive Management combines data from monitoring species
and natural systems with new information from management and targeted studies to continually
assess the effectiveness and adjust conservation actions. Adaptive Management may include re-
prioritizing monitoring efforts as well as corrective actions where (a) resources are threatened by
land uses in and adjacent to the Property, (b) current management activities are not adequate or
effective, or (c) enforcement needs are identified. Actions that are part of Adaptive Management
of the Property in accordance with the NCCP/HCP, including but not limited to monitoring and
corrective actions, are consistent with the purposes of, and expressly permitted by, this
Conservation Easement.
8. Grantee’s Remedies. CDFW and USFWS, as third-party beneficiaries of this
Conservation Easement, shall each have the same rights as Grantee under this section to enforce
the terms of this Conservation Easement. If Grantee determines that a violation of the terms of this
Conservation Easement has occurred or is threatened, Grantee shall give written notice to Grantor
of such violation and demand in writing the cure of such violation. At the time of giving any such
notice, Grantee shall also give a copy of the notice to CDFW and to USFWS. If Grantor fails to
cure the violation within fifteen (15) days after receipt of written notice and demand from Grantee,
or if the cure reasonably requires more than fifteen (15) days to complete and Grantor fails to begin
the cure within the fifteen (15)-day period or fails to continue diligently to complete the cure,
Grantee may bring an action at law or in equity in a court of competent jurisdiction to enforce the
terms of this Conservation Easement for any or all of the following: to recover any damages to
which Grantee may be entitled for violation of the terms of this Conservation Easement or for any
injury to the Conservation Values of the Property; to enjoin the violation, ex parte as necessary, by
D-129
124
temporary or permanent injunction without the necessity of proving either actual damages or the
inadequacy of otherwise available legal remedies; for other legal or equitable relief, including, but
not limited to, the restoration of the Property to the condition in which it existed prior to any such
violation or injury; or to otherwise enforce this Conservation Easement. Without limiting Grantor’s
liability therefor, Grantee may apply any damages recovered to the cost of undertaking any
corrective action on the Property.
If Grantee, in its sole discretion, determines that circumstances require immediate action
to prevent or mitigate damage to the Conservation Values of the Property, Grantee may pursue its
remedies under this Section 7 without prior notice to Grantor or without waiting for th e period
provided for cure to expire. Grantee’s rights under this section apply equally to actual or threatened
violations of the terms of this Conservation Easement. Grantor agrees that Grantee’s remedies at
law for any violation of the terms of this Conservation Easement are inadequate and that Grantee
shall be entitled to the injunctive relief described in this section, both prohibitive and mandatory,
in addition to such other relief to which Grantee may be entitled, including specific performance
of the terms of this Conservation Easement, without the necessity of proving either actual damages
or the inadequacy of otherwise available legal remedies. Grantee’s remedies described in this
section shall be cumulative and shall be in addition to all remedies now or hereafter existing at law
or in equity, including but not limited to, the remedies set forth in Civil Code Section 815, et seq.,
inclusive. The failure of Grantee to discover a violation or to take immediate legal action shall not
bar Grantee from taking such action at a later time.
If at any time in the future Grantor or any subsequent transferee uses or threatens to use
the Property for purposes inconsistent with this Conservation Easement then, notwithstanding Civil
Code Section 815.7, the California Attorney General, any person and any entity with a justiciable
interest in the preservation of this Conservation Easement each has standing as an interested party
in any proceeding affecting this Conservation Easement.
8.1. Fees and Costs; Damages. All costs incurred by Grantee, CDFW or
USFWS, where it is the prevailing party, in enforcing the terms of this Conservation Easement
against Grantor, including, but not limited to, costs of suit and attorneys’ and experts’ fees, and any
costs of restoration necessitated by Grantor’s negligence or breach of this Conservation Easement
shall be borne by Grantor. Pursuant to Civil Code Section 815.7, subdivision (d), the court may
award to the prevailing party in any action authorized by that section, the costs of litigation,
including reasonable attorney’s fees.
8.2. Discretion of Grantee and Third-Party Beneficiaries. Enforcement of the
terms of this Conservation Easement by Grantee, CDFW or USFWS shall be at the discretion of
the enforcing party, and any forbearance by Grantee, CDFW or USFWS to exercise its rights under
this Conservation Easement in the event of any breach of any term of this Conservation Easement
shall not be deemed or construed to be a waiver of such term or of any subsequent breach of the
same or any other term of this Conservation Easement or of any of Grantee’s rights (or any rights
of CDFW or USFWS as a third-party beneficiary) under this Conservation Easement. No delay or
omission by Grantee, CDFW or USFWS in the exercise of any right or remedy shall impair such
right or remedy or be construed as a waiver.
8.3. Acts Beyond Grantor’s Control. Nothing contained in this Conservation
Easement shall be construed to entitle Grantee, CDFW or USFWS to bring any action against
Grantor for any injury to or change in the Property resulting from any natural cause beyond
Grantor’s control, including, without limitation, fire not caused by Grantor, flood, storm, and earth
D-130
125
movement, or any prudent action taken by Grantor under emergency conditions to prevent, abate,
or mitigate significant injury to persons or the Property resulting from such causes.
8.4. Rights of Enforcement. All rights and remedies conveyed to Grantee
under this Conservation Easement shall extend to and are enforceable by CDFW and USFWS.
These rights are in addition to, and do not limit, the rights of enforcement under the NCCP/HCP
and IA.
9. Fence Installation and Maintenance. Grantor may install and maintain fencing that
is approved in writing by Grantee, CDFW, and USFWS to protect the Conservation Values of the
Property, including but not limited to wildlife corridors.
10. Access. Public access to the Property for passive recreational purposes and to
promote understanding and appreciation of natural resources in accordance with Section 5.4.2 of
the NCCP/HCP and a Public Use Management Plan approved in writing by Grantee, CDFW, and
USFWS, is permitted.
11. Costs and Liabilities. Grantor retains all responsibilities and shall bear all costs
and liabilities of any kind related to the ownership, operation, upkeep, and maintenance of the
Property. Grantor agrees that neither CDFW nor USFWS shall have any duty or responsibility for
the operation, upkeep or maintenance of the Property, the monitoring of hazardous conditions
thereon, or the protection of Grantor, the public or any third-parties from risks relating to conditions
on the Property. Grantor and Grantee each remains solely responsible for obtaining any applicable
governmental permits and approvals required of it for any activity or use permitted by this
Conservation Easement, including those from CDFW and USFWS each acting in its regulatory
capacity, and any activity or use shall be undertaken in accordance with all applicable Federal,
state, local and administrative agency statutes, ordinances, rules, regulations, orders and
requirements.
11.1. Taxes; No Liens. Grantor shall pay before delinquency all taxes,
assessments (general and special), fees, and charges of whatever description levied on or assessed
against the Property by competent authority (collectively “Taxes”), including any taxes imposed
upon, or incurred as a result of, this Conservation Easement, and shall furnish Grantee, CDFW and
USFWS with satisfactory evidence of payment upon request. Grantor and Grantee each shall keep
the Property free from any liens, including those arising out of any obligations incurred for any
labor or materials furnished or alleged to have been furnished to or for it at or for use on the
Property.
11.2. Hold Harmless.
(a) Grantor shall hold harmless, protect and indemnify Grantee and its directors,
officers, employees, agents, contractors, and representatives and the heirs, personal representatives,
successors and assigns of each of them (individually or, collectively, “Grantee Indemnified
Parties”) from and against any and all liabilities, penalties, costs, losses, damages, expenses
(including, without limitation, reasonable attorneys’ fees and experts’ fees), causes of action,
claims, demands, orders, liens or judgments (“Claim(s)”), arising from or in any way connected
with: (1) injury to or the death of any person, or physic al damage to any property, resulting from
any act, omission, condition, or other matter related to or occurring on or about the Property,
regardless of cause, except that this indemnification shall be inapplicable to Grantee’s Indemnified
Parties with respect to any Claim due solely to the negligence or willful misconduct of Grantee or
any of Grantee Indemnified Parties; and (2) the obligations specified in Sections 5, 11, and 11.1.
D-131
126
(b) Grantor shall hold harmless, protect and indemnify CDFW and USFWS (“Third-
Party Beneficiaries”) and their respective directors, officers, employees, agents, contractors, and
representatives and the heirs, personal representatives, successors and assigns of each of them
(individually or collectively, “Third-Party Beneficiary Indemnified Parties”) from and against any
and all Claims arising from or in any way connected with: (1) injury to or the death of any person,
or physical damage to any property, resulting from any act, omission, condition, or other matter
related to or occurring on or about the Property, regardless of cause, and (ii) the existence or
administration of this Conservation Easement. Provided, however, that this indemnification shall
be inapplicable to a Third-Party Beneficiary Indemnified Party with respect to any Claim due solely
to the negligence or willful misconduct of that Third-Party Beneficiary Indemnified Party/ies. If
any action or proceeding is brought against any of the Third-Party Beneficiary Indemnified Parties
by reason of any Claim to which the indemnification in this Section 11.2 (b) applies then, at the
election of and upon written notice from the Third-Party Beneficiary Indemnified Party, Grantor
shall defend such action or proceeding by counsel reasonably acceptable to the applicable Third -
Party Beneficiary Indemnified Party or reimburse the Third-Party Beneficiary Indemnified Party
for all charges of the California Attorney General or the U.S. Department of Justice in defending
the action or proceeding.
11.3. Extinguishment. If circumstances arise in the future that render the
purposes of this Conservation Easement impossible to accomplish, this Conservation Easement can
only be terminated or extinguished, in whole or in part, by judicial proceedings in a court of
competent jurisdiction. Grantor and Grantee shall notify CDFW and USFWS in writing at least
ninety (90) days prior to the initiation of proceedings to extinguish the Conservation Easement.
11.4. Condemnation. This Conservation Easement is a “conservation
easement” as defined in Code of Civil Procedure Section 1240.055 (a) (1) and constitutes “property
appropriated to public use” as defined in Code of Civil Procedure Section 1240.055 (a) (3). CDFW
and USFWS is each a public entity that imposed conditions on approval or permitting of a project
that were satisfied by this Conservation Easement, as described in Code of Civil Procedure Section
1240.055 (a) (3). A person authorized to acquire property for public use by eminent domain shall
exercise the power of eminent domain to acquire the Property only as provided in Code of Civil
Procedure Section 1240.055. The purposes of this Conservation Easement are presumed to be the
best and most necessary public use as defined at Code of Civil Procedure Section 1240.680,
notwithstanding Code of Civil Procedure Sections 1240.690 and 1240.700.
12. Transfer of Conservation Easement. This Conservation Easement may be assigned
or transferred by Grantee only to CDFW or another entity or organization approved in advance in
writing by Grantor, CDFW and USFWS that is authorized to acquire and hold conservation
easements pursuant to Civil Code Section 815.3 and Government Code Section 65967 (and any
successor or other provisions then applicable) or the laws of the United States. Grantee shall require
the transferee to record the assignment in the county where the Property is located.
13. Transfer of Property. Grantor agrees to incorporate the terms of this Conservation
Easement by reference in any deed or other legal instrument by which Grantor divests itself of any
interest in all or any portion of the Property, including, without limitation, a leasehold interest.
Grantor further agrees to give written notice to Grantee, CDFW and USFWS of the intent to transfer
any interest at least sixty (60) days prior to the date of such transfer. Grantee, CDFW or USFWS
shall have the right to prevent any transfer in which prospective subsequent claimants or transferees
are not given notice of the covenants, terms, conditions and restrictions of this Conservation
Easement. The failure of Grantor, Grantee, CDFW or USFWS to perform any act provided in this
D-132
127
section shall not impair the validity of this Conservation Easement or limit its enforceability in any
way.
14. Notices. Any notice, demand, request, consent, approval, or other communication
that any party desires or is required to give to the other parties shall be in writing, with a copy to
CDFW and USFWS, and be served personally or sent by recognized overnight courier that
guarantees next-day delivery or by first class mail, postage fully prepaid, addressed as follows:
To Grantor: City of Rancho Palos Verdes
30940 Hawthorne Boulevard
Rancho Palos Verdes, California 90275
Attn: City Manager
Facsimile: (310) 377-9868
To Grantee: Palos Verdes Land Conservancy
916 Silver Spur Road, Suite 207
Rolling Hills Estates, California 90274
Attn: Executive Director
To CDFW: California Department of Fish and Wildlife
South Coast Region
3883 Ruffin Road
San Diego, California 92123
Attn: Regional Manager
With a copy to: California Department of Fish and Wildlife
Office of the General Counsel
1416 Ninth Street, 12th Floor
Sacramento, California 95814-2090
Attn: General Counsel
To USFWS: Carlsbad Fish and Wildlife Office
2177 Salk Avenue, Suite 250
Carlsbad, California 92008
Telephone: (760) 431-9440
Fax: (760) 431-5901
Attn: Field Supervisor
or to such other address as Grantor, Grantee, CDFW or USFWS may designate by written notice
to the other parties. Notice shall be deemed effective upon delivery in the case of personal delivery
or delivery by overnight courier or, in the case of delivery by first class mail, three (3) business
days after deposit into the United States mail.
15. Amendment. This Conservation Easement may be amended by Grantor and
Grantee only by mutual written agreement and subject to the prior written approval of CDFW and
USFWS. Any such amendment shall be consistent with the purposes of this Conservation
Easement and California law governing conservation easements and shall not affect its perpetual
duration. Any such amendment shall be recorded in the official records of Los Angeles County,
State of California, and Grantee shall promptly provide a conformed copy of the recorded
amendment to Grantor, CDFW, and USFWS.
D-133
128
16. Additional Provisions.
(a) Controlling Law. The interpretation and performance of this Conservation
Easement shall be governed by the laws of the State of California, disregarding the conflicts of law
principles of such state.
(b) Liberal Construction. Despite any general rule of construction to the contrary, this
Conservation Easement shall be liberally construed to carry out the purposes of this Conservation
Easement and the policy and purpose of Civil Code Section 815, et seq. If any provision in this
instrument is found to be ambiguous, an interpretation consistent with the purposes of this
Conservation Easement that would render the provision valid shall be favored over any
interpretation that would render it invalid.
(c) Severability. If a court of competent jurisdiction voids or invalidates on its face
any provision of this Conservation Easement, such action shall not affect the remainder of this
Conservation Easement. If a court of competent jurisdiction voids or invalidates the application of
any provision of this Conservation Easement to a person or circumstance, such action shall not
affect the application of the provision to any other persons or circumstances.
(d) Entire Agreement. This instrument, including the documents incorporated by
reference in it, sets forth the entire agreement of the parties with respect to the Conservation
Easement and supersedes all prior discussions, negotiations, understandings, or agreements relating
to the Conservation Easement. No alteration or variation of this instrument shall be valid or binding
unless contained in an amendment in accordance with Section 15.
(e) No Forfeiture. Nothing contained herein will result in a forfeiture or reversion of
Grantor’s title in any respect.
(f) Successors. The covenants, terms, conditions, and restrictions of this Conservation
Easement shall be binding upon, and inure to the benefit of, the parties hereto and their respective
personal representatives, heirs, successors, and assigns and shall constitute a servitude running in
perpetuity with the Property.
(g) Termination of Rights and Obligations. A party’s rights and obligations under this
Conservation Easement terminate upon transfer of the party’s interest in the Conservation
Easement or Property, except that liability for acts or omissions occurring prior to transfer shall
survive transfer.
(h) Captions. The captions in this instrument have been inserted solely for
convenience of reference and are not a part of this instrument and shall have no effect upon its
construction or interpretation.
(i) No Hazardous Materials Liability. Grantor represents and warrants that it has no
knowledge or notice of any Hazardous Materials (defined below) or underground storage tanks
existing, generated, treated, stored, used, released, disposed of, deposited or abandoned in, on,
under, or from the Property, or transported to or from or affecting the Property.
Without limiting the obligations of Grantor under Section 11.2, Grantor hereby releases
and agrees to indemnify, protect and hold harmless the Grantee Indemnified Parties (as
defined in Section 11.2) from and against any and all Claims (as defined in Section 11.2)
arising from or connected with any Hazardous Materials or underground storage tanks
D-134
129
present, alleged to be present, released in, from or about, or otherwise associated with the
Property at any time, except that this release and indemnification shall be inapplicable to
the Grantee Indemnified Parties with respect to any Hazardous Materials placed, disposed
or released by Grantee, its employees or agents. This release and indemnification includes,
without limitation, Claims for (i) injury to or death of any person or physical damage to
any property; and (ii) the violation or alleged violation of, or other failure to comply with,
any Environmental Laws (defined below).
Without limiting the obligations of Grantor under Section 11.2, Grantor hereby releases
and agrees to indemnify, protect and hold harmless the Third-Party Beneficiary
Indemnified Parties (as defined in Section 11.2) from and against any and all Claims arising
from or connected with any Hazardous Materials or underground storage tanks present,
alleged to be present, released in, from or about, or otherwise associated with the Property
at any time, except that this release and indemnification shall be inapplicable to a Third-
Party Beneficiary Indemnified Party with respect to any Hazardous Materials placed,
disposed or released by that Third-Party Beneficiary Indemnified Party or any of its
employees. This release and indemnification includes, without limitation, Claims for (i)
injury to or death of any person or physical damage to any property; and (ii) the violation
or alleged violation of, or other failure to comply with, any Environmental Laws (defined
below). If any action or proceeding is brought against any of the Third-Party Beneficiary
Indemnified Parties by reason of any such Claim then, at the election of and upon written
notice from the Third-Party Beneficiary Indemnified Party, Grantor shall defend such
action or proceeding by counsel reasonably acceptable to the applicable Third-Party
Beneficiary Indemnified Party or reimburse the Third-Party Beneficiary Indemnified Party
for all charges of the California Attorney General or the U.S. Department of Justice in
defending the action or proceeding.
Despite any contrary provision of this Conservation Easement, the parties do not intend
this Conservation Easement to be, and this Conservation Easement shall not be, construed such that
it creates in or gives to CDFW or USFWS any of the following:
(1) The obligations or liability of an “owner” or “operator,” as those terms are
defined and used in Environmental Laws (defined below), including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended
(42 U.S.C. Section 9601 et seq.; hereinafter, “CERCLA”); or
(2) The obligations or liabilities of a person described in 42 U.S.C. Section
9607(a)(3) or (4); or
(3) The obligations of a responsible person under any applicable
Environmental Laws; or
(4) The right or duty to investigate and remediate any Hazardous Materials
associated with the Property; or
(5) Any control over Grantor’s or Grantee’s ability to investigate, remove,
remediate or otherwise clean up any Hazardous Materials associated with the Property. The term
“Hazardous Materials” includes, without limitation, (a) material that is flammable, explosive or
radioactive; (b) petroleum products, including by-products and fractions thereof; and (c) hazardous
materials, hazardous wastes, hazardous or toxic substances, or related materials defined in
CERCLA, the Resource Conservation and Recovery Act of 1976 (42 U.S.C. Section 6901 et seq.;
D-135
130
hereinafter “RCRA”); the Hazardous Materials Transportation Act (49 U.S.C. Section 5101 et
seq.; hereinafter “HTA”); the Hazardous Waste Control Law (California Health & Safety Code
Section 25100 et seq.; hereinafter “HCL”); the Carpenter-Presley-Tanner Hazardous Substance
Account Act (California Health & Safety Code Section 25300 et seq.; hereinafter “HSA”), and in
the regulations adopted and publications promulgated pursuant to them, or any other applicable
Environmental Laws now in effect or enacted after the date of this Conservation Easement.
The term “Environmental Laws” includes, without limitation, CERCLA, RCRA,
HTA, HCL, HSA, and any other Federal, state, local or administrative agency statute, ordinance,
rule, regulation, order or requirement relating to pollution, protection of human health or safety,
the environment or Hazardous Materials. Grantor represents, warrants and covenants to Grantee,
CDFW, and USFWS that activities upon and use of the Property by Grantor, its agents, employees,
invitees and contractors will comply with all Environmental Laws. Grantee represents, warrants
and covenants to Grantor, CDFW, and USFWS that activities upon and use of the Property by
Grantee, its agents, employees, invitees and contractors will comply with all Environmental Laws.
(j) Warranty. Grantor represents and warrants that there are no outstanding
mortgages, liens, encumbrances or other interests in the Property (including, without limitation,
water and mineral interests) that may conflict or are otherwise inconsistent with this Conservation
Easement and which have not been expressly subordinated to this Conservation Easement by a
written, recorded Subordination Agreement approved by Grantee, CDFW and USFWS.
(k) Additional Easements. Grantor shall not grant any additional easements, rights of
way or other interests in the Property (other than a security interest that is subordinate to this
Conservation Easement), or grant, transfer, abandon or relinquish (each a “Transfer”) any mineral,
air or water right, or any water associated with the Property, without first obtaining the written
consent of Grantee, CDFW and USFWS. Grantee, CDFW or USFWS may withhold such consent
if it determines that the proposed interest or Transfer is inconsistent with the purposes of this
Conservation Easement or will impair or interfere with the Conservation Values of the Property.
This Section 16(k) shall not limit the provisions of Section 3(d) or 4(n), nor prohibit transfer of a
fee or leasehold interest in the Property that is subject to this Conservation Easement and complies
with Section 13. Grantor shall provide a certified copy of any recorded or unrecorded grant or
Transfer document to Grantee, CDFW and USFWS.
(l) Recording. Grantee shall record this Conservation Easement in the Official
Records of Los Angeles County, California, and may re-record it at any time as Grantee deems
necessary to preserve its rights in this Conservation Easement.
(m) Third-Party Beneficiaries. Grantor and Grantee acknowledge that CDFW and
USFWS (each a “Third-Party Beneficiary” and together, the “Third-Party Beneficiaries”) are
third party beneficiaries of this Conservation Easement with the right of access to the Property and
the right to enforce all obligations of Grantor and all other rights and remedies of Grantee under
this Conservation Easement.
(n) No Merger. The doctrine of merger is not intended, and shall not operate to
extinguish this Conservation Easement if the Conservation Easement and the Property become
vested in the same party. If, despite this intent, the doctrine of merger applies to extinguish th e
Conservation Easement then, unless Grantor, Grantee, CDFW and USFWS otherwise agree in
writing, a replacement conservation easement or restrictive covenant containing the same
protections embodied in this Conservation Easement shall promptly be recorded against the
Property by Grantee, or its successor in interest, in favor of a third party approved in writing CDFW
D-136
131
and FWS to ensure that the mitigation obligations required under the agency approvals and permits
identified in Recital C which include conservation of the Property in perpetuity through execution
and recordation of a conservation easement or equivalent legal mechanism, and the purposes of
Cal. Civil Code Section 815, are fulfilled. Until such replacement conservation easement or
equivalent legal mechanism is executed and recorded, Grantee or its successor in interest shall
continue to protect the Property in accordance with the terms of the original Conservation
Easement. Any and all terms and conditions of this Conservation Easement shall be deemed
covenants and restrictions upon the Easement Area, which shall run with the land according to
California law and otherwise exist in perpetuity.
IN WITNESS WHEREOF, the Parties have executed this Conservation Easement as of the
day and year first set forth above.
GRANTOR: CITY OF RANCHO PALOS VERDES, a California municipal corporation
By: _______________________________________
Mayor of the City of Rancho Palos Verdes
ATTEST:
By: ____________________________________
Emily Colborn, City Clerk
Approved as to form:
By: ____________________________________
David Aleshire, City Attorney
GRANTEE: PALOS VERDES PENINSULA LAND CONSERVANCY, a California non-
profit corporation
By: _______________________________________
Allen Franz, President, Board of Directors
By: _______________________________________
Amy Friend, Vice President, Board of Directors
D-137
132
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On _______________________, 2018, before me,_________________________, a
Notary Public in and for the State of California, personally appeared
________________________________________, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument, the person, or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
________________________________________
Notary Public in and for the State of California
(SEAL)
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On _______________________, 2018, before me, ________________________, a
Notary Public in and for the State of California, personally appeared
________________________________________, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument, the person, or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
________________________________________
Notary Public in and for the State of California
(SEAL)
EXHIBIT 1
LEGAL DESCRIPTION OF PROPERTY
D-138