HomeMy WebLinkAbout1994-06-21; City Council; 12746 Part 3; PART 3 - DRAFT FIELDSTONE/ RANCHO SANTA FE ROAD HABITAT CONSERVATION PLAN AND IMPLEMENTATION AGREEMENTPreliminary Draft Environmental Assessment Contents
Contents
1. Purpose of and Need for Action 1
A. Introduction 1
B. Proposed Action and Decisions Needed 2
C. Purpose of and Need for the Proposed Action 3
D. Issues and Concerns 3
E. Other Required Actions 3
2. Alternatives 5
A. Alternatives Eliminated from Further Consideration 5
1. No Take of Listed Species 5
2. No Take of Coastal California Gnatcatchers 6
3. Take Only within Road Project Area 6
4. Delay of Take Pending Completion of HMP 6
5. Offsite Mitigation, Unlimited Plan Area Take 7
6. Reconfiguration of Onsite Conserved Habitat 7
B. Alternatives Considered 7
1. Proposed Action and Preferred Alternative 8
a. Habitat Conservation 8
b. Habitat Management 11
1) Interim Habitat Management 11
2) Ongoing Habitat Management 11
3) Funding of Habitat Management 12
c. Impact Minimization and Mitigation Measures 12
1) Project-Specific Impact Avoidance and Minimization ..12
2) Impact Phasing and Project Design Measures 14
3) Supplemental Mitigation Measures 16
d. Plan Implementation 16
2. No Action 17
C. Summary Comparison of Alternatives 17
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3. Affected Environment 20
A. Regional and Local Setting 20
1. San Diego County 20
2. North County 20
3. Carlsbad 20
B. HCP/OMSP Plan Area 23
1. Rancheros-Southeast II 23
2. Northwest 26
C. Biological Resources 27
1. Habitat Types in the Plan Area 27
2. HCP/OMSP Species of Concern 27
3. Ecosystem Context 30
a. HMP Evaluation 30
b. MHCP Evaluation 40
4. Environmental Consequences 43
A. Biological Impacts 43
1. Proposed Action and Preferred Alternative 43
a. Anticipated Adverse and Beneficial Impacts 43
b. Potentially Significant Impacts 43
c. Proposed Mitigation 50
1) Onsite Conserved Habitat 50
2) Offsite Conserved Habitat 57
3) Habitat Management 57
2. No Action 58
B. Land Use Impacts 58
1. Proposed Action and Preferred Alternative 58
2. No Action 58
C. Social and Economic Impacts 59
1. Proposed Action and Preferred Alternative 59
2. No Action 59
D. Cumulative Impacts 59
E. Unavoidable Adverse Effects 60
F. Relationship of Short-term Uses and Long-term Productivity 60
G. Irreversible and Irretrievable Commitments of Resources 61
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5. Persons and Agencies Consulted 62
Figures
1 Conserved Habitat on Rancheros-Southeast II 9
2 Conserved Habitat on Northwest 10
3 Grading Phases in Southeast II 15
4 Plan Area Location 21
5 Northern San Diego County 22
6 Rancheros-Southeast II 24
7 Northwest 25
8 North County Resources 28
9 Habitat Types in the Plan Area 29
10 Distribution of Coastal California Gnatcatchers
on Rancheros-Southeast II 36
11 Distribution of Coastal California Gnatcatcher
on Northwest 37
12 HMP Preserve Planning Areas 38
Tables
1 Onsite Conserved Habitat under the Proposed Action 11
2 Summary Comparison of Proposed Action and No Action Alternatives 18
3 General Plan Land Use Designations in the HCP/OMSP Plan Area 26
4 Habitat Types in the Plan Area 27
5 HCP/OMSP Species of Concern 31
6 Comparison of Citywide, PPA, and HCP/OMSP Habitat Estimates 40
7 Comparison of MHCP Study Area, Carlsbad, and HCP/OMSP
Habitat Estimates 41
8 Results of MHCP Habitat Evaluation 42
9 Habitat Conserved and Assumed "Taken" under the Proposed Action..44
10 Anticipated Impacts of Proposed Action on Species of Concern 45
11 Potential for Significant Adverse Impacts to Species of Concern 51
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Preliminary Draft Environmental Assessment 1. Purpose of and Need for Action
1. Purpose of and Need for Action
This chapter describes the purpose of and need for action by the U.S. Fish
and Wildlife Service (Service) on a Habitat Conservation Plan/Ongoing
Multiple Species Plan (HCP/OMSP) and Implementation Agreement (IA)
submitted by the City of Carlsbad (City) and Fieldstone/La Costa Associates
(FLCA).
A. Introduction
The HCP/OMSP and its accompanying IA were prepared in accordance with
the requirements and intent of the federal Endangered Species Act (ESA),
California ESA, and California Natural Communities Conservation Planning
(NCCP) Act. They were developed in consultation with the Service and
California Department of Fish and Game (Department) and are being
reviewed concurrently by the two agencies.
Preparation of the HCP/OMSP began in 1989 in connection with planning for
the realignment a major arterial roadway in the southeast quadrant of the
City, prior to enactment of California's NCCP program for coastal sage scrub
habitat or the federal listing of the coastal California gnatcatcher (Polioptila
californica californica). This early effort evolved into the collaborative
planning process that produced the HCP/OMSP - a process characterized
by a consideration of range-wide conservation issues, open public
participation, and candid negotiations with conservation interests and
federal, state, and local agencies. In July and August of 1991, the City,
FLCA, Service, and Department signed a Memorandum of Agreement
regarding development of the plan. In May 1992, preliminary agreement
about the plan's fundamental tenets was reached, as expressed in an "Initial
Points of Consensus" document initialed by the four parties. In March 1993,
the first draft of the plan (entitled "Habitat Conservation Plan for Plant and
Wildlife Species of Concern on Properties in the Southeast Quadrant of the
City of Carlsbad, California") was completed and distributed for purposes of
soliciting additional public comment prior to formal submittal of a plan to the
Service and Department. A revised draft was completed in March 1994 and
was submitted to the Service and Department together with the IA.
The March 1994 HCP/OMSP covers 1,940.2 acres of private property that
are essentially surrounded by existing urban uses. The plan's primary
purpose is to provide for wildlife conservation in the context of anticipated
urbanization. It is essentially "habitat-based," meaning that it addresses the
needs of multiple species primarily by conserving, managing, and monitoring
the habitats on which they depend. The habitat requirements of 66 species
of concern (17 plants, 3 invertebrates, 2 amphibians, 12 reptiles, 14 birds,
and 8 mammals) are addressed in this way, including those of the federally-
listed gnatcatcher. The plan also establishes the basis for government
planning and regulation, providing assurances that the conservation
measures will be implemented and that the projects and activities covered
by the plan can proceed without further wildlife mitigation. The IA presents
the HCP/OMSP in the form of a contractual agreement among the Service,
Department, City, and FLCA.
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Preliminary Draft Environmental Assessment 1. Purpose of and Need for Action
This Preliminary Draft Environmental Assessment (PDEA) has been
prepared in accordance with the National Environmental Policy Act (NEPA)
to identify and evaluate the potential environmental effects of the Service's
action on the HCP/OMSP and IA.
B. Proposed Action and Decisions
Needed
The proposed action by the Service is three-fold:
1a. Issuance of a written statement indicating the Service's concurrence that
the HCP/OMSP is consistent with NCCP Process Guidelines for OMSPs
and that, in accordance with the special 4(d) rule, take of coastal
California gnatcatchers in the area covered by the HCP/OMSP is not a
violation of Section 9 of the federal ESA; or
1b. Issuance of a permit for incidental take of coastal California
gnatcatchers, pursuant to Section 10(a)(1)(B) of the federal ESA;
2. Issuance of a biological opinion pursuant to an internal Section 7
consultation and conference indicating that, based on the best available
scientific information, federally listed species, species currently
proposed for federal listing, other species of concern, and areas
designated or proposed as critical habitat will not be jeopardized by
implementation of the HCP/OMSP; and
3. Execution of the IA to ensure implementation of the plan and to provide
assurances that federal authorization for take will be given for species
covered by the plan that become federally listed as threatened or
endangered and/or are protected by the Migratory Treaty Bird Act.
The primary decision to be made by the Service is whether the HCP/OMSP
provides for the species of concern in a way that meets the approval criteria
for an HCP as specified in the federal ESA and in the Code of Federal
Regulations (CFR). Those criteria are:
1. The taking of the species will be incidental to an otherwise lawful
activity;
2. The applicant will, to the maximum extent practicable, minimize and
mitigate the impacts of the taking;
3. The applicant will ensure that adequate funding for the conservation
plan and procedures to deal with unforeseen circumstances will be
provided;
4. The taking will not appreciably reduce the likelihood of the survival and
recovery of the species in the wild;
5. The applicant will ensure that other measures (if any) that the Service
may require as being necessary or appropriate will be met; and
6. The Service is assured that the conservation plan will be implemented.
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Preliminary Draft Environmental Assessment 1. Purpose of and Need for Action
C. Purpose of and Need for
the Proposed Action
The purpose of the Proposed Action is to authorize incidental take of
federally listed species in the area covered by the HCP/OMSP and further
the objectives of the federal ESA and other federal wildlife conservation
laws by conserving habitat for listed and unlisted species in a way that also
allows necessary economic development to proceed.
The action is needed to:
1. Bring projects and activities covered by the plan into compliance with
the federal ESA and Migratory Bird Treaty Act; and
2. Provide long-term (30-year) assurances from the responsible federal
agency that, barring unforeseen circumstances, conservation and
mitigation measures other than those identified in the HCP/OMSP will
not be required for the biological impacts of the projects and activities
covered by the plan.
D. Issues and Concerns
For purposes of this PDEA, NEPA issues and concerns were identified
based on the public comments on the March 1993 draft of the HCP/OMSP.
Approximately 200 copies of the March 1993 draft were distributed, and
discussion sessions were held to solicit verbal as well as written comments.
Public presentations on the draft were made at meetings of two advisory
groups appointed by the City to oversee development of the HCP/OMSP
and preparation of a citywide Habitat Management Plan (HMP). A special
workshop also was held, together with meetings with Service and
Department staff. Key issues raised during the review process include:
• The relationship of the HCP/OMSP to the Carlsbad HMP and to the
North County Multiple Habitat Conservation Program (North County
MHCP);
• The long-term viability of the wildlife corridors, habitat linkages, and
conserved habitat proposed in the HCP/OMSP;
• The potential effects of the expected level of take on gnatcatcher
populations in Carlsbad and North County; and
• The benefits versus the costs of additional or alternative configurations
of onsite conserved habitat within the area covered by the HCP/OMSP.
E. Other Required Actions
In choosing to adopt the Proposed Action or an alternative action, the
Service must comply with the internal consultation requirements of Section 7
of the federal ESA. As part of that consultation, the Service must
determine:
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Preliminary Draft Environmental Assessment 1. Purpose of and Need for Action
1. Whether its action would jeopardize the continued existence of any
federally listed species, species proposed for federal listing, or other
species of concern,
2. Whether its action would adversely affect areas designated or proposed
as critical habitat for a federally listed species, and
3. Whether its action is consistent with any approved recovery plans for
federally listed species.
For any incidental take permit issued pursuant to Section 10(a)(1)(B), the
Service also must publish notice of receipt of a permit application, comply
with the public comment requirements of the federal ESA, and comply with
the documentation requirements of NEPA. Additionally, some of the
projects and activities covered by the plan may require a permit from the
U.S. Army Corps of Engineers pursuant to Section 404 of the federal Clean
Water Act. No other actions by a federal agency are required or anticipated
in connection with the HCP/OMSP and IA.
To be "incidental to an otherwise lawful activity," take authorized by the
Service must result from projects and activities that are in compliance with
state and local laws. In this regard, take of species protected by the
California ESA as well as the federal law must be authorized by the
Department pursuant to Sections 2081, 2090, or 2835 of the California Fish
and Game Code. Additionally, for federal authorization of take to be given
under the special 4(d) rule for the coastal California gnatcatcher, the
Department must concur that the proposed conservation and mitigation
measures are consistent with the NCCP Process and Conservation
Guidelines. Individual projects and activities covered by the plan also may
require authorization from the Department pursuant to Sections 1601 and
1603 of the Fish and Game Code and 401 certification from the Regional
Water Quality Control Board. No other actions by a state agency are
required or anticipated in connection with the HCP/OMSP and IA.
Regarding compliance with local laws, the City must determine that the
HCP/OMSP and IA are consistent with the Carlsbad General Plan and the
Municipal Code. In taking this action, the City will comply with the
environmental review and documentation requirements of the California
Environmental Quality Act (CEQA). CEQA review and documentation also
will be required for the individual projects and activities covered by the
HCP/OMSP and will be completed in accordance with the City's established
procedures for approving projects. No other actions by a local agency are
required or anticipated in connection with the HCP/OMSP and IA.
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Preliminary Draft Environmental Assessment 2. Alternatives
2. Alternatives
The alternatives considered in this PDEA are the Proposed Action (approval
of authorizations and assurances as proposed in the HCP/OMSP and
accompanying IA) and No Action. Six other alternatives were considered
but were eliminated from further consideration as not being feasible or in
favor of modifications now part of the Proposed Action. The "preferred
alternative" as defined in NEPA is the Proposed Action.
A. Alternatives Eliminated
from Further Consideration
As part of the HCP/OMSP planning process and in accordance with HCP
approval criteria that require a consideration of alternatives to the taking of
species, six alternatives were considered by the City and FLCA. The same
alternatives are presented here for NEPA purposes. They are:
No take of listed species;
No take of coastal California gnatcatchers;
Take only within the Rancho Santa Fe Road project area;
Delay of take pending completion of the HMP;
An offsite mitigation strategy with unlimited take in the plan area; and
Reconfiguration of the proposed onsite conserved habitat.
1. No Take of Listed Species
Under this alternative, all development within the plan area would be
planned to completely avoid take of listed species. The HCP/OMSP would
not be submitted to the Service and Department for approval and would not
be implemented by FLCA and the City. Individual projects and activities
within the area covered by the plan would be planned, reviewed, and
approved in accordance with the local, state, and federal laws in effect at the
time. Conservation of plants and wildlife in the plan area would be
determined in the context of then existing laws and programs.
This alternative was rejected as counter to the intent of the 1991 agreement
with the Service and Department, the 1992 Initial Points of Consensus, the
ESAs and NCCP program, and the citywide HMP planning process.
Additionally, given the distribution of habitat and species of concern, take
could not be completely avoided without precluding all of the land uses
currently proposed for the plan area and authorized under the City's existing
General Plan. The elimination of development impacts in the plan area
would have to assume acquisition of the property or the development rights
to it. Such acquisitions are not within the City's current or foreseeable
financial capabilities. Likewise, dedication of all or part of the lands without
the ability to develop elsewhere is not financially feasible for FLCA.
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Preliminary Draft Environmental Assessment 2. Alternatives
2. No Take of Coastal California Gnatcatchers
Under this alternative, all proposed land uses in the area covered by the
HCP/OMSP would be reconfigured to avoid take of coastal California
gnatcatchers due to direct and indirect impacts. This approach was
originally proposed in anticipation of the federal listing of the gnatcatcher as
a way to comply with the federal ESA without requiring preparation of an
HCP. It also was proposed as a way to maximize the conservation of
coastal sage scrub habitat in the plan area.
This alternative was eliminated from further consideration based on the
same reasons as those outlined for Alternative 1 above.
3. Take Only within Road Project Area
Under the "road project only" alternative, the HCP/OMSP would focus solely
on mitigation for the impacts of the Rancho Santa Fe Road realignment and
adjacent grading project (the project that triggered preparation of the
HCP/OMSP). Land uses that would affect biological resources in the area
covered by the HCP/OMSP would be planned, reviewed, and approved in
accordance with local, state, and federal laws in effect at the time.
This alternative was the focus of initial planning efforts for HCP/OMSP. It
was explicitly rejected by the advisory group for the plan because of (1) the
obvious links between habitats in the road project area and other parts of the
plan area; (2) FLCA's willingness to include other parts of its ownership in
the planning process; (3) the need for greater flexibility (via a larger plan
area) in balancing conservation and development within the constraints of
the City's General Plan; and (4) the majority of the improvement costs for
Rancho Santa Fe Road must be paid for by FLCA and, without
commensurate development of other portions of FLCA's property, makes the
entire development project financially infeasible.
4. Delay of Take Pending Completion of
HMP
Under this alternative, take as proposed in the HCP/OMSP would not be
allowed until the citywide HMP is completed. The timing but not the level of
the take would change.
This alternative was eliminated from further consideration primarily because
it would delay implementation of conservation measures proposed in the
HCP/OMSP and thereby preclude any immediate benefits that those
measures would provide to individual species. In addition, the HCP/OMSP
is specifically designed to provide an opportunity for early implementation of
conservation measures in two of the preserve planning areas identified in
the HMP. Further, the HCP/OMSP is designed to be consistent with the
HMP, strengthening the citywide conservation strategy by preserving habitat,
species, and wildlife corridors in key locations. Finally, the time it will take
for final completion of the HMP is not certain and likely will take at least one
year and maybe two or more. The carrying cost of the land to FLCA over
such an extended time period could render the project financially infeasible.
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Preliminary Draff Environmental Assessment 2. Alternatives
5. Offsite Mitigation, Unlimited Plan Area
Take
Under this alternative, a higher level of take in the area covered by the
HCP/OMSP would be proposed, and offsite lands would be the primary
focus of the conservation and mitigation measures. Onsite measures would
concentrate on minimization of development impacts, and replacement
habitat would be acquired offsite and established as a permanent preserve.
A version of this alternative also was considered prior to the preliminary
consensus on the basic terms of the strategy in the HCP/OMSP.
This approach was eliminated from further consideration primarily because,
given the pattern of habitat and land ownership in the City and region, the
offsite reserve would likely be located outside the urban area where coastal
sage scrub is most at risk. In addition, although an offsite preserve would
have benefits for the gnatcatcher and other species, it would not have the
same natural open space function and local conservation value as a strategy
focused on the plan area components. It also would not provide the
connectivity proposed in the HCP/OMSP.
6. Reconfiguration of Onsite Conserved
Habitat
During the preparation and review of the HCP/OMSP, a variety of
alternative onsite configurations of the conserved habitat and development
areas were considered. This was in keeping with the requirement that
impacts must be minimized and mitigated to the maximum extent
practicable and that the HCP/OMSP not prejudice subregional NCCP
planning efforts. Generally, alternatives considered included the downsizing
and relocation of major arterial roadways, density transfers, dwelling unit
losses, and boundary reconfigurations to permit increases in conserved
habitat. Among other factors, the financial costs and feasibility of these
alternatives were considered.
This alternative was eliminated from further consideration because:
• It was determined that further dedications and revisions by FLCA (the
primary landowner) are not financially practicable; and,
• In the absence of any existing federal, state, or local program with
adequate funding to acquire the lands, it is not reasonable to assume
that all or some of the lands could be acquired and thereby conserved.
B. Alternatives Considered
The two alternatives considered in this PDEA are the Proposed Action (the
preferred alternative) and No Action.
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Preliminary Draft Environmental Assessment 2. Alternatives
1. Proposed Action and Preferred
Alternative
Under the Proposed Action and preferred alternative, the Service would:
1a. Issue a written statement indicating the Service's concurrence that the
HCP/OMSP is consistent with NCCP Process Guidelines for OMSPs
and that, in accordance with the special 4(d) rule, take of coastal
California gnatcatchers in the area covered by the HCP/OMSP is not a
violation of Section 9 of the federal ESA; or
1b. Issue a permit for incidental take of coastal California gnatcatchers,
pursuant to Section 10(a)(1)(B) of the federal ESA;
2. Issue of a biological opinion pursuant to an internal Section 7
consultation and conference that, based on the best available scientific
information, federally listed species, species currently proposed for
federal listing, other species of concern, and areas designated or
proposed as critical habitat will not be jeopardized; and
3. Execute an agreement with the City and FLCA ensuring implementation
of the HCP/OMSP and providing pre-listing assurances that federal
authorization for incidental take will be given if species covered by the
plan become federally listed, with the authorization provided in the form
of a Section 10(a) permit, as part of biological opinion pursuant to a
Section 7 consultation, or in accordance with the provisions of a special
4(d) rule.
For purposes of this PDEA, the Proposed Action also can be defined as the
implementation of the following conservation and mitigation measures,
authorizations for take of currently listed species, and pre-listing assurances
regarding take of other species of concern.
a. Habitat Conservation
Implementation of the HCP/OMSP would conserve up to 885.1 acres of
habitat for the species of concern: 645.1 acres within two plan area
components identified as Rancheros-Southeast II and Northwest (Table 1
and Figures 1 and 2) and up to 240 acres in offsite locations to be selected
in consultation with the Service and the Department. All of the proposed
onsite conserved habitat is in FLCA's ownership. The offsite conserved
habitat would be acquired by FLCA, with at least 120 of the 240 acres in
locations that would strengthen the habitat linkage with the regional coastal
sage community in northern San Diego County. FLCA would provide an
irrevocable offer to convey fee interest or a conservation easement for the
onsite conserved habitat to a conservancy established or designated for
purposes of the Carlsbad HMP, to the Department, or to another entity
approved by the Service and the Department. Conservation easements or
fee interest also would be conveyed for the offsite mitigation lands.
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Preliminary Draft Environmental Assessment 2. Alternatives
Table 1
Onsite Conserved Habitat under the Proposed Action
(acres)
Habitat
Type
Coastal sage scrub
Southern mixed chaparral
Southern maritime
chaparral
Grassland
Riparian scrub/woodland
Disturbed habitat
TOTAL
Rancheros-Southeast II
Rancheros
144.81
15.73
0.00
0.00
0.98
0.00
161.52
San
Marcos
Creek
79.40
0.00
0.00
0.00
5.60
0.00
85.00
Southeast
II
202.46
20.04
0.00
19.20
3.07
30.12
274.89
Total
426.67
35.77
0.00
19.20
9.65
30.12
521.41
Northwest
21.36
1.06
28.90
33.30
34.91
4.16
123.69
TOTAL
448.03
36.83
28.90
52.50
44.56
34.28
645.10
b. Habitat Management
Two types of habitat management would be provided under the HCP/OMSP:
• Interim management of conserved habitat by FLCA; and
• Long-term, ongoing management of conserved habitat by an entity
designated for that purpose under the terms of the HCP/OMSP, the
HMP, or North County MHCP.
It is anticipated that the entity responsible for long-term management of
conserved habitat and the entity to which the conservation easements or fee
interest is conveyed would be a conservancy established for purposes of
implementing the HMP. However, alternative arrangements also have been
identified in the HCP/OMSP in the event that the HMP is substantially
delayed or not completed. Such alternatives include delegation of
management responsibilities to the Department, The Nature Conservancy,
or (as a last resort) a homeowners association. The arrangement actually
made would be subject to approval by the Service and Department.
1) Interim Habitat Management
FLCA would be responsible for management of conserved habitat until fee
interest is conveyed or FLCA delegates its management responsibilities to
the HMP conservancy or an entity approved by the City, Service, and
Department. Interim management activities would consist of:
• Maintaining existing access controls;
• Clean-up of conserved habitat areas where unauthorized trash dumping
has occurred; and
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Preliminary Draft Environmental Assessment 2. Alternatives
• Implementation of project-specific impact minimization and mitigation
measures (see below).
FLCA would prepare an interim management plan that describes the
activities to be performed and, until fee interest is conveyed or the
management responsibilities have been delegated, would provide annual
updates to the plan as necessary. FLCA also would provide information on
the implementation of interim management measures in the annual reports
on overall plan implementation that would be prepared by FLCA and the City
for the Service's and Department's review.
2) Ongoing Habitat Management
Ongoing management of conserved habitat would be guided by annual plans
prepared by the HMP conservancy or other designated entity in consultation
with a management advisory committee. The committee would be
composed of representatives of the Service, Department, City, FLCA, and
the management entity or entities.
3) Funding of Habitat Management
Funding of interim management activities would be FLCA's responsibility.
Funding of long-term management would be provided through the HMP by
use of any funds available to the City for wildlife, acquisition, conservation,
and management purposes, including but not limited to assessments, levies,
and grants or other types of funding from public or private sources. As a last
resort, a "conserved habitat maintenance charge" of up to $50.00 per
residential unit per year would be assessed on each development unit within
the plan area.
c. Impact Minimization and Mitigation Measures
In addition to the impact minimization achieved through preserve design, the
HCP/OMSP provides for individual projects and activities in the plan area to
be planned and implemented in a way that further avoids, minimizes, and
mitigates impacts to species of concern and conserved habitat. Such
measures would include but not be limited to project-specific impact
avoidance and minimization, impact phasing and project design, and
supplemental mitigation measures.
1) Project-Specific Impact Avoidance and Minimization
In configuring conserved habitat within the plan area, priority was given to
minimizing direct impacts through preserve design. Ten additional impact
avoidance and minimization measures would pertain to individual projects
and activities that would affect conserved habitat.
a. Nest site protection. No clearing or grading operations would be
allowed in habitat occupied by the gnatcatcher during its breeding
season (February 15 to July 31). This measure also would protect other
nesting species of concern. Prior to July 31, clearing may occur if it is
determined that the gnatcatchers have already successfully fledged
young, are no longer actively nesting, and the young have dispersed
from the area. In addition, although no direct impacts to trees currently
used for nesting by raptors are anticipated, if it is determined that raptors
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Preliminary Draft Environmental Assessment 2. Alternatives
are nesting in any trees scheduled for removal, the trees would be
avoided until after the nesting season. Additionally, where feasible,
clearing activities within 200 feet of raptor nest sites would be avoided
during the nesting season.
b. Access control. Prior to commencement of clearing or grading
activities, access barriers to conserved habitat would be established at
key entry points. The boundaries of conserved habitat immediately
adjacent to a grading area would be flagged by a biologist, and a fence
would be installed to prevent disturbance by construction vehicles. This
fencing could be removed upon completion of all construction activities
and/or replacement with permanent fencing to protect conserved habitat.
Reasonable, appropriate measures also would be taken to ensure that
the construction crew is informed of the sensitivity of conserved habitat.
c. Noise Control. Grading, construction, and other activities that create
noise in excess of 61 d.b.a. Leq level in conserved habitat occupied by
gnatcatchers would be limited to the non-breeding season (August 1
through February 15) unless six foot temporary noise berms are used to
reduce noise levels.
d. Storage and staging areas. No temporary storage or stockpiling of
construction materials would be allowed within conserved habitat, and all
staging areas for equipment and materials (especially rock crushing
equipment) would be located as far from conserved habitat as possible.
Staging areas and construction sites would be kept as free as possible of
trash, refuse, discarded food wrappers, and other waste that might
attract small scavengers that prey on gnatcatchers and other sensitive
small passerines. Trash containers with animal-resistant lids would be
provided on the site during construction.
e. Monitoring. During grading and construction adjacent to conserved
habitat, a biologist would monitor the adjacent habitat for excessive
accumulations of dust or other disturbance. Erosion control devices also
would be monitored during the rainy season to ensure that dirt, topsoil,
and other materials are not washing into the conserved habitat area. If
at any time significant amounts of dust or material are determined to be
impacting conserved habitat, then corrective measures would be taken
immediately.
f. Unavoidable disturbances of conserved habitat. Disturbance of
conserved habitat would be avoided to the maximum extent possible.
However, where disturbance is unavoidable and has been authorized, it
would be mitigated by restoration of the affected sites. Revegetation
plans would be prepared for the approval of the City prior to such
disturbances occurring. In addition, the location and installation of
utilities would be planned cooperatively with the City, Service, and
Department to minimize and mitigate the impacts of such projects on
species of concern and conserved habitat. Examples of disturbances
that may be unavoidable include: (a) temporary noise buffers and
fencing adjacent to conserved habitat; (b) fuel modification zones at the
edge of conserved habitat; (c) temporary and permanent public facilities
for water, electricity, sewer, gas, and other utilities; and (d) remedial
grading for structural purposes, such as easements, buttresses, and crib
walls.
4-26-94 Draft 13
Preliminary Draft Environmental Assessment 2. Alternatives
g. Fuel management zones. Fuel management zones separating
conserved habitat from adjacent development would be designed to
minimize impacts to native vegetation. The final location of the zones in
relation to the interface of development of conserved habitat would be
defined at the tentative map stage of planning. Measures to minimize or
further reduce impacts to vegetation include: (a) removal of high fuel
species, irrigation, and selective pruning (as specified in the City of
Carlsbad's Landscape Manual) to suppress the potential for slope fires;
(b) planting of native, low-fuel plant species within fuel management
zones; and (c) use of alternative fuel breaks such as coastal prickly pear
cactus, that reduce water use, have additional wildlife value, and
minimize access to conserved habitat.
h. Lighting. Lighting within new development projects adjacent to
conserved habitat would be selectively placed, shielded, and directed
away from conserved habitat. In addition, lighting from homes abutting
conserved habitat would be screened by planting vegetation, and large
spotlight-type backyard lighting directed into conserved habitat would be
prohibited.
i. Landscaping. Invasive species such as giant reed and pampas grass
would not be used in landscaped area directly adjacent to conserved
habitat. A list of species that should not be used in landscaping would
be provided to home buyers. Additionally, these species would be
identified in the CC&Rs of the homeowners association as plants to be
avoided in landscaping.
j. Public information program. Homeowners, homeowner associations,
and the interested public would be informed of ways to avoid impacts to
the conserved resources through a public information program
developed in cooperation with the City. The program would include: (a)
a public information brochure that describes the natural resources and
prohibited activities within conserved habitat; and (b) a landscaping and
fuel break planning brochure for homeowners and homeowner
associations adjacent to conserved habitat.
2) Impact Phasing and Project Design Measures
Impact phasing and project design measures pertain to projects and
activities within the Rancheros-Southeast II plan area component. They are
as follows.
1. Realignment of Rancho Santa Fe Road would proceed in two phases
tied to the City's level of service and financing requirements and subject
to final environmental review.
2. Grading and construction within Southeast II would occur in the areas
identified in the plan as "phases" (Figure 3);
3. Realignment of Rancho Santa Fe Road and the configuration of
conserved habitat in Southeast II assumes redesign of Melrose Avenue
to avoid two gnatcatcher use areas and reclassification of the road from
a prime to major arterial.
4-26-94 Draft 14
NOTES:
RANCHO SANTA FE ROAD WILL BE PHASE 1A.
PHASES I - III MAY OCCUR IN ANY ORDER.
LEGEND
SDGSL EASEMENT
II
PRESERVE AREAS
PHASE NUMBER
Prepared By: Hofman Planning Associates NTS
Figure 3 . Grading Phases in Southeast II
15
Preliminary Draft Environmental Assessment 2. Alternatives
3) Supplemental Mitigation Measures
In addition to the measures already described, FLCA would work
cooperatively with the City, Service, and Department to implement the
following supplemental mitigation measures.
a. Research. To provide additional data that can be used to guide habitat
management, FLCA would provide $50,000 for research on the coastal
California gnatcatcher. The focus and design of the research program
would be determined prior to the conveyance of conserved habitat to the
designated management entity.
b. Coordination. To ensure that the needs of multiple species are
addressed and to avoid duplication of effort, the City would coordinate
the implementation of this plan with other conservation programs in and
adjacent to Carlsbad. In addition, FLCA would provide the City with
$150,000 for the completion of the HMP.
c. Cooperation. Working with USFWS and CDFG, the City and FLCA
would seek the cooperation of Vallecitos Water District in maintaining
the existing biological value of the District's lands near Stanley Mahr
Reservoir; SDG&E's cooperation in the consolidation and relocation of
powerline easements in conserved habitat; and the City of San Marcos'
cooperation in the preservation of a wildlife corridor in that portion of
San Marcos Creek outside of the City.
d. Plan Implementation
Implementation of the HCP/OMSP would be governed by an agreement
among the City, FLCA, Service, and Department. In addition to reiterating
the roles and responsibilities cited above, the agreement would specify
reporting requirements and procedures to address unforeseen
circumstances. It also would provide long-term (30-year) authorizations and
assurances allowing projects and activities planned and conducted in
accordance with the HCP/OMSP to proceed without further wildlife
mitigation. Such projects and activities would include but be not limited to:
1. Realignment of Rancho Santa Fe Road and related transportation
improvements in Rancheros-Southeast II;
2. Development of FLCA master planned residential communities, together
with the requisite infrastructure and public facilities, in both plan area
components;
3. Commercial development by MAG properties on 81 acres in Rancheros-
Southeast II;
4. Fire management and roadway maintenance in both plan area
components; and
5. Management of conserved habitat in both plan area components.
4-26-94 Draft 16
Preliminary Draft Environmental Assessment 2. Alternatives
2. No Action
Under the No Action alternative, the HCP/OMSP would not be implemented
as proposed. FLCA and the other landowners could seek authorization for
take of federally listed species on a project-by-project and species-by-
species basis or, assuming their completion and approval, under the
auspices of the HMP and MHCP. Conservation of habitat for listed and
unlisted species would occur in connection with project-by-project mitigation
plans or, assuming their completion and approval, the subarea and
subregional conservation plans. Service approval would be required only for
those projects and activities involving actual take of federally-listed species.
C. Summary Comparison of Alternatives
The key components and expected consequences of the Proposed Action
and No Action alternatives are summarized and compared in Table 2.
4-26-94 Draft 17
Preliminary Draft Environmental Assessment 2. Alternatives
Table 2
Summary Comparison of Proposed Action and No Action Alternatives
Variable Proposed Action No Action
Total Amount of
Conserved Habitat
Up to 885.1 acres (645.1 acres in
plan area and up to 240 acres in
offsite locations approved by the
Service and Department).
No advance commitment of
conserved habitat, onsite or offsite.
If FLCA and other landowners pursue
development plans, some habitat
conservation would occur in
connection with mitigation identified
on project-by-project basis or under
HMP and/or MHCP.
Effects on Species
Currently Protected by
Federal ESA (coastal
California gnatcatcher,
and least Bell's-vireo,
Pacific pocket mouse)
Up to 18 pairs of gnatcatchers and
425 acres of habitat conserved
onsite; up to 240 acres of habitat and
unknown number of pairs conserved
offsite; up to 31 gnatcatcher pairs
and 505 acres of habitat taken over
30 year period. No vireos taken and
less than 2 acres of potential habitat
taken; 35 acres of potential nesting
habitat preserved onsite. Pacific
pocket mouse not expected to occur
in plan area. Service does not have
approved recovery plans for any of
these species.
No take of gnatcatchers, no removal
of gnatcatcher habitat, and no
removal of potential vireo habitat
would be authorized as proposed;
some take of gnatcatchers and
habitat might occur on project-by-
project basis. Pacific pocket mouse
not expected to occur in plan area.
Service does not have approved
recovery plans for any of these
species.
Effects on Species
Currently Proposed for
Federal Listing (Del Mar
manzanita, Del Mar sand
aster, Encinitas baccharis,
Orcutt's spineflower,
California red-legged frog,
and southwestern willow
flycatcher)
75% of Del Mar manzanita
population preserved on site;
preserved population includes nearly
800 individuals. Del Mar sand aster,
Encinitas baccharis, Orcutt's
spineflower, California red-legged
frog, southwestern willow flycatcher
not observed to date in plan area;
areas of potential habitat for each
species conserved onsite.
Habitat would not be explicitly
conserved and managed in the plan
area for these species. Riparian
species would receive some
protection via federal and state
wetland regulations. The species do
not occur in coastal sage scrub and
consequently would not be
incidentally protected by the
presence of gnatcatchers.
Effects on Areas
Designated or Proposed
as Critical Habitat For
Federally Listed Species
No areas designated or proposed as
critical habitat would be affected.
No areas designated or proposed as
critical habitat would be affected.
Effects on Other Species
of Concern
57 other species treated as if they
were federally listed, including 39
that occur in coastal sage scrub
habitat. Adverse impacts to species
mitigated through habitat
conservation and project-specific
measures. Conserved habitat
managed for benefit of species.
Habitat would not be explicitly
conserved and managed in the plan
area for these species. Riparian
species would receive some
protection via federal and state
wetland regulations. Coastal sage
scrub species would be incidentally
protected where gnatcatchers occur.
4-26-94 Draft 18
Preliminary Draft Environmental Assessment 2. Alternatives
Table 2 (continued)
Summary Comparison of Proposed Action and No Action Alternatives
Variable Proposed Action No Action
Land Use Impacts Otherwise lawful land uses would
proceed without further wildlife
mitigation; no significant adverse
impacts to existing or proposed uses
would result.
Otherwise lawful land uses could
proceed in areas not occupied by
listed species; projects in areas with
listed species would require separate
authorizations. Replanning and
delays necessary to secure
authorizations could have adverse
impacts on City's ability to implement
General Plan and landowners' ability
to use their private property.
Social and Economic
Impacts
City's attainment of General Plan
goals regarding provision of housing,
transportation levels of service, open
space, and community character
would be facilitated; level of certainty
necessary for economic development
would be provided while providing
adequate level of preservation. No
significant adverse impacts would
result.
Social and economic goals
connected with uses in the plan area
would remain secondary to
protection of federally listed species.
City or other public agency might
have to assume cost of permanently
conserving habitat in plan area.
Cumulative Impacts Some of the anticipated biological
impacts to species of concern could
result in cumulatively significant
adverse impacts; HCP/OMSP
includes habitat-based and project-
specific measures to minimize and
mitigate such impacts.
Not assessed.
Unavoidable Adverse
Impacts
Loss of habitat and take of listed
species constitute unavoidable
adverse impacts; HCP/OMSP
includes measures to minimize and
mitigate such effects.
Not applicable.
Short-term Uses versus
Long-term Productivity
HCP/OMSP proposes to balance
short-term and long-term uses of the
land for urban development and
wildlife conservation purposes.
Balance requires tradeoffs in
development and conservation
priorities. Configuration of onsite
conserved habitat and supplemental
mitigation measures minimize and
mitigate impacts of such tradeoffs on
the species of concern.
Not assessed.
Irreversible and
Irretrievable Commitments
of Resources
Irreversible and irretrievable
commitments of resources would
occur in plan area. Long-term
benefits of conservation program and
project-specific measures minimize
and mitigate such impacts on the
species of concern.
Not applicable.
4-26-94 Draft 19
Preliminary Draft Environmental Assessment 3. Affected Environment
3. Affected Environment
This chapter describes the regional and local setting, the area covered by
the HCP/OMSP, and the biological resources that would be affected by the
Proposed Action and No Action alternatives. Additional information
regarding the affected environment is provided in Chapters 2 and 3 and
Appendix B of the HCP/OMSP.
A. Regional and Local Setting
The area covered by the HCP/OMSP is located in the City of Carlsbad in
northwestern San Diego County, approximately 30 miles south of Orange
and Riverside Counties and 30 miles north of the urban core of the City of
San Diego (Figure 4).
1. San Diego County
San Diego County forms the southwestern tip of the State of California and
the continental United States. It is bordered on the east by Imperial County,
on the north by Riverside and Orange Counties, on the west by the Pacific
Ocean, and on the south by Baja California, Mexico (see Figure 4). It
extends about 70 miles from east to west and 60 miles from north to south,
encompassing approximately 2.7 million acres (4,250 square miles). With
over 2.6 million residents as of 1993, the county has the second largest
population among the 58 counties in California; its population is larger than
that in 33 of the 50 States.
2. North County
The term "North County" generally refers to the cities and unincorporated
communities located north of Del Mar, south of the Orange and Riverside
County borders, and west of Lake Henshaw (Figure 5). This area includes
about 550,000 acres or about 20 percent of the county. Based on 1990
census data, nearly 700,000 persons reside in North County, occupying
about 250,000 housing units. Approximately 40 percent of the land in the
subregion has been developed.
3. Carlsbad
Carlsbad is located in the western portion of North County. It is situated
along the Pacific Ocean, extending 7 miles along the coast and 4.5 miles
inland. It encompasses about 25,000 acres and shares borders with four
other cities and two unincorporated areas (see Figure 5). Its population
(63,000 in 1990) constitutes about 10 percent of that in North County and is
expected to exceed 100,000 by 2010. As in North County as a whole, about
40 percent (10,000 acres) of the City's total area has been developed; an
additional 4,000 acres are in agricultural use.
4-26-94 Draft 20
Prepared By: Hofman Planning Associates
Figure 4 . Plan Area Location
21
^S-AaoUoOJ)sa
DJj
£
22
Preliminary Draft Environmental Assessment 3. Affected Environment
The specific area covered by the HCP/OMSP is located in the southeastern
quadrant of the City of Carlsbad. The property has a General Plan
classification and a Zoning district that requires a Master Plan for
development of the property. The La Costa Master Plan has been
previously approved on the property and will be required to be amended
upon completion of the HCP/OMSP process. As part of the amendment
process, an Environmental Impact Report will be required to address the
impacts of any proposed land development in those areas defined as
developable in the HCP/OMSP.
Additionally, the City has taken action approving a realignment and mass
grading plan for Rancho Santa Fe Road. As part of this process, an
Environmental Impact Report was certified by the City Council in May 1992
(Rancho Santa Fe Road Realignment and Mass Grading. Cotton/Beland
Associates, Inc., May 19, 1992). This report was reviewed by the Service, is
on file at that office, and is incorporated herein by reference."
B. HCP/OMSP Plan Area
The HCP/OMSP plan area consists of two components that together
comprise 1,940.2 acres: Rancheros-Southeast II (Figure 6) and Northwest
(Figure 7). All of the plan area lands are in private ownership. FLCA owns
1,844.2 acres (95 percent); MAG Properties owns 81.0 acres, and 14.8 acres
are in multiple private ownership in areas proposed as roadway easements
for the realigned Rancho Santa Fe Road in Rancheros-Southeast II. With
the exception of approximately 260 acres, all of the lands are currently
designated in the General Plan for residential or commercial development
(Table 3).
1. Rancheros-Southeast II
Rancheros-Southeast II includes 1,278.2 acres south of Alga Road near the
City's eastern boundary. It has three subcomponents (Figure 6):
• The Rancheros component of FLCA's La Costa Master Plan (347.0
acres);
• A segment of San Marcos Creek (85.0 acres); and
• Southeast II (846.2 acres).
The 18.7-acre Stanley Mahr Reservoir and 2.7-acre Denk Reservoir within
Southeast II and the water tank area within Rancheros are not part of the
plan area.
This portion of the plan area is surrounded by existing development of
various densities on all sides except the southeast (see Figure 6). It is
bisected by the existing Rancho Santa Fe Road, which generally runs north-
south and varies in width from two to three lanes and has a truck by-pass
route east of the main road. With the exception of existing roads,
powerlines, and water facilities, the land is vacant; lands closest to existing
development have been heavily disturbed by illegal trash dumping and off-
road vehicle (ORV) use. Most (1,038.4 acres) of Rancheros-Southeast II is
designated in the Carlsbad General Plan for residential uses, primarily low
density (<1 dwelling unit per acre) housing (see Table 3).
4-26-94 Draft 23
Prepared By: Aerial Fotobank Inc.
Figure 6 . Rancheros - Southeast II
24
Prepared By: Aerial Fotobank Inc.
Figure 7. Northwest
25
Preliminary Draft Environmental Assessment 3. Affected Environment
Table 3
General Plan Land Use Designations in the HCP/OMSP Plan Area
(acres)
General
Plan
Land Use
Designation
Open space
Commercial
Professional &
related
Community
Subtotal"'
Residential
Low density
Low-medium density
Medium density
Subtotal
Elementary school
TOTAL
Rancheros-Southeast II
Rancheros
0.0
0.0
0.0
0.0
347.0
0.0
0.0
347.0
0.0
347.0
San
Marcos
Creek
72.0
0.0
0.0
0.0
13.0
0.0
0.0
13.0
0.0
85.0
Southeast
ir
103.3
11.5
36.7
48.2
386.6
291.8
16.3
694.7
0.0
846.2
Total
175.3
11.5
36.7
48.2
746.6
291.8
16.3
1,054.7
0.0
1,278.2
Northwest
67.3
0.0
0.0
0.0
0.0
453.2
131.5
584.7
10.0
662.0
Plan
Area
242.6
11.5
36.7
48.2
746.6
745.0
147.8
1,639.5
10.0
1,940.2
Includes 750.4 acres of FLCA's Southeast II component of the La Costa Master Plan, 81
acres owned by MAG Properties, and 14.8 acres covered by roadway easements.
Subtotal for commercial uses does not reflect proposed Master Plan amendment for
MAG Properties' commercial development of 81 acres in the plan area component
2. Northwest
Northwest includes 662 acres that surround the La Costa Country Club Golf
Course north of Alga Road and east of El Camino Real (Figure 7). It
coincides with the Northwest component of FLCA's La Costa Master Plan.
The area is bordered by residential development on the east and south, by
commercial and residential development on the west, and by agriculture on
the north and northeast (see Figure 7).
Excluding the golf course, existing uses are limited to an FLCA ranch house,
powertines, and access roads; land between El Camino Real and the Golf
Course has been disturbed by illegal dumping and ORV use. Most (584.7
acres) of the area is designated in the General Plan for residential uses,
primarily low to medium density (<3.2 dwelling units per acre) housing (see
Table 3).
4-26-94 Draft 26
Preliminary Draft Environmental Assessment 3. Affected Environment
C. Biological Resources
The biological focus of the HCP/OMSP is the western tip of the largest
coastal sage scrub community in northern San Diego County (Figure 8).
1. Habitat Types in the Plan Area
Six habitat types occur within the HCP/OMSP plan area: Diegan coastal
sage scrub, southern mixed and southern maritime chaparral, non-native
and native grassland, riparian scrub and oak woodland, disturbed habitat,
and eucalyptus woodland (Table 4 and Figure 9).
Approximately two-thirds of Rancheros-Southeast II is coastal sage scrub,
with the remainder primarily southern mixed chaparral and disturbed habitat;
all six habitat types occur in Northwest but no one type covers more than 38
percent of the plan area component (see Table 4 and Figure 9).
Table 4
Habitat Types in the Plan Area
(acres)
Habitat Type
Diegan coastal sage scrub
Chaparral
Southern mixed
Southern maritime
Subtotal
Grassland
Non-native
Native
Subtotal
Riparian scrub and woodland
Disturbed habitat
Eucalyptus woodland
TOTAL
Rancheros-
Southeast II
832.2
189.2
0.0
189.2
35.0
41.6
76.6
16.6
157.4
1.0
1,278.2
Northwest
123.0
6.0
120.0
726.0
251.6
3.4
255.0
97.0
55.5
5.5
662.0
Plan Area
955.2
195.2
120.0
375.2
286.6
21.0
306.6
113.6
191.9
6.5
1,940.2
2. HCP/OMSP Species of Concern
Of all flora and fauna associated with the habitats types in the plan area, 66
species were selected as "species of concern" for conservation planning
purposes. The species are representative of the biodiversity and sensitive
of resources in the plan area, Carlsbad, and the regional ecosystem. They
include species that are:
1. Already protected by the federal or state ESAs;
2. Candidates for federal or state listing;
3. "Species of special concern" in California as identified by CDFG;
4. Sensitive bird species protected by the Migratory Bird Treaty Act;
5. On the list of sensitive species for the NCCP program;
6. On the list of sensitive plant species maintained by the CNPS;
4-26-94 Draft 27
Preliminary Draft Environmental Assessment 3. Affected Environment
1. On the list of target species for the HMP and North County MHCP;
8. On the list of "other sensitive species" for the HMP.
Information regarding the species' habitat associations, rangewide
distribution, and occurrence in the plan area is summarized in Table 5 and
presented in more detail in Appendix B of the HCP/OMSP. Thirty-six of the
66 species of concern were observed in one or both plan area components;
30 of the 66 species have the potential to occur in habitats in the plan area.
Observed species of concern include 17 plant species, 1 amphibian, 5
reptiles, 10 birds, and 3 mammals (see A-1 through A-36 on Table 5). Of
the 36 species: one is federally listed as threatened (coastal California
gnatcatcher), one is proposed for federal listing as endangered (Del Mar
manzanita), and 19 are candidates for federal listings. The distribution of
the one federally-listed observed species of concern, the coastal California
gnatcatcher, is shown on Figures 10-11.
The "potentially occurring" species of concern include 10 plants, 1
amphibian, 7 reptiles, 4 birds, and 5 mammals (see B-1 through B-30 on
Table 5). Of the 30 species: two are federally listed as endangered (least
Bell's vireo and pacific pocket mouse), five are proposed for federal listing
as threatened or endangered (Del Mar sand aster, Encinitas baccharis,
Orcutt's spineflower, California red-legged frog, and southwestern willow
flycatcher), and 21 are candidates for federal listing.
3. Ecosystem Context
Habitat evaluations were conducted for the HMP and North County MHCP
and provide a relative measure of the plan area's value as part of the local
and regional ecosystem.
a. HMP Evaluation
As discussed in Appendix A of the HCP/OMSP and in the draft HMP
completed by the City in July 1993, seven "preserve planning areas" (PPAs)
have been identified in the City based on an analysis of the City's remaining
natural open space (Figure 12). Similar to the habitat evaluation process
recommended in the NCCP Guidelines, the HMP analysis ranked areas in
terms of:
Amount and number of different habitats present;
Connectivity with habitats of the same type;
Vulnerability and manageability, based on adjacent land uses;
Presence, amount, and diversity of sensitive habitats;
Presence and abundance of gnatcatchers and coastal sage scrub; and
Numbers of sensitive plant and wildlife species.
4-26-94 Draft 30
LEGEND
NOTE:
FOCUSED PLANNING AREAS INCLUDE
THOSE AREAS THAT ARE PRESENTLY
VACANT AND WITH OR WITHOUT AN
APPROVED TENTATIVE TRACT MAP.
CARLSBAD CITY BOUNDARY
HMP PRESERVE PLANNING AREAS
HCP PLAN AREA
Prepared By: Hofman Planning Associates NTS
I
Figure 12 . HMP Preserve Planning Areas
38
Preliminary Draft Environmental Assessment 3. Affected Environment
Based on the HMP Habitat Evaluation Models Composite Model analysis,
over 70 percent of all of the undeveloped lands not currently mapped as
agricultural lands in the City are mapped as "very high" value. An additional
15 percent is mapped as "high" value. Only approximately 14 percent of the
natural lands remaining in the City were not mapped as "high" or "very high"
value.
It should be noted that these maps are developed at a gross scale with only
limited field verification, and are not intended to assess areas at a project-
specific level. According to the model, a large majority of both project areas
are ranked as "very high" value habitat. The only areas not ranked as "very
high" value habitat on the Rancheros Southeast II parcel occur on the slopes
on either side of San Marcos Creek (high), the northern portion of the
Rancheros site (moderate), and along the northern edge of Southeast II (low
and moderate). Essentially all of the Northwest parcel is ranked as "very
high," with only scattered disturbed areas being ranked as "high" or
"moderate."
Based on the HMP Habitat Evaluation Models Composite Model analysis the
habitat value rankings for the Rancheros-Southeast II and Northwest parcels
are:
Rancheros-Southeast II Northwest
• Disturbed 5% 2%
• Medium 11% 2%
• High 8% 1%
• Very High 76% 95%
1) PPA7 and Rancheros-Southeast II
PPA7, which encompasses Rancheros-Southeast II, is 47 percent coastal
sage scrub (937 acres), 17 percent chaparral (337 acres), 22 percent
grassland (477 acres), and 3 percent riparian scrub and woodland habitat (53
acres) (Table 6). It is linked to comparable habitat east of Carlsbad via
Rancheros-Southeast II, to PPA6 via the riparian corridor extending through
Green Valley, and to PPA5 by a power line corridor and La Costa Golf
Course.
Rancheros-Southeast II encompasses most (over 800 acres) of the sage
scrub in PPA7, more than one-half (about 190 acres) of the chaparral, and
about one-third (about 17 acres) of the riparian scrub and woodland in the
PPAs. Compared with the PPA as a whole, it contains a higher proportion of
sage scrub and lower proportion of grassland.
2) PPAS and Northwest
PPAS, which encompasses Northwest, is 22 percent sage scrub (292 acres),
13 percent chaparral (172 acres), 34 percent grassland (450 acres), and at
least 5 percent riparian scrub and woodland habitat (60 acres) (see Table 6).
The La Costa Golf Course provides a buffer between existing uses and
habitat in the PPA, and the edge of the golf course also provides a narrow
riparian corridor that traverses nearly the entire PPA.
4-26-94 Draft 39
Preliminary Draft Environmental Assessment 3. Affected Environment
Table 6
Comparison of Citywide, PPA, and HCP/OMSP Habitat Estimates
(acres)
Habitat Type
Coastal sage scrub
Chaparral
Grassland
Riparian scrub/woodland*
Eucalyptus woodland
Salt and freshwater marsh
Disturbed wetlands
Other disturbed habitat"
Water
Developed
TOTAL
Total
in
City
3,377
2,024
2,469
621
302
360
189
4,706
880
9,989
24,917
Total
in All 7
PPAs
2,645
1,555
1,571
535
102
285
124
1,597
850
444
9,708
PPA 7
937
337
477
53
17
1
0
116
2
47
1,987
Rancheros-
Southeast
II
832.2
189.2
76.6
16.6
1.0
0.0
0.0
157.0
0.0
0.0
1,278.2
PPAS
292
172
450
60
8
8
35
291
7
20
1,343
Northwest
123.0
120.0
255.0
97.0*
5.5
0.0
0.0
191.9
0.0
0.0
662.0
* HMP "Riparian Scrub/Woodland" category excludes disturbed riparian areas, which are
treated as "Disturbed Wetlands" in the HMP.
** HMP "disturbed habitat" category includes agriculture and excludes disturbed coastal
sage scrub and chaparral; the latter are counted in the totals for those types.
NOTE: Acreage for Rancheros-Southeast II and Northwest is included for comparison; plan area
component totals were calculated based on site-specific mapping, not the HMP data
base.
The northern edge of PPAS is adjacent to agricultural lands. Linkages to
PPA7 are provided via narrow power line easements. No permanent
linkages to PPA2 and PPA4 currently exist. Northwest contains
approximately 40 percent of the sage scrub, 70 percent of the chaparral,
more than 50 percent of the grassland, and all of the riparian scrub and
woodland habitat in the PPA. Compared with PPAS as a whole, Northwest
contains a higher proportion of riparian scrub and woodland habitat.
b. MHCP Evaluation
The mapping and CIS data base for the North County MHCP indicate that
the sage scrub in the HMP PPAs constitutes less than 3 percent of 108,032
acres in the MHCP subregion, the grasslands constitute less than 2 percent
of 84,940 acres in the subregion, and the chaparral constitutes less than 1
percent of the 156,253 acres in the subregion (Table 7).
4-26-94 Draft 40
Preliminary Draft Environmental Assessment 3. Affected Environment
Table 7
Comparison of MHCP Study Area,
Carlsbad, and HCP/OMSP Habitat Estimates
(acres)
Habitat Type
Coastal Sage Scrub
Chaparral
Grassland
Riparian Scrub/Woodland
Eucalyptus Woodland
Subtotal
All Other
TOTAL -
MHCP
Study
Area
108,032
156,253
84,940
25,447
2,306
376,978
281,137
422,877
Total
in
City
3,377
2,024
2,469
621
302
8,793
16,124
24,917
Total
in All 7
PPAs
2,645
1,555
1,571
535
102
6,408
3,300
9,708
Rancheros-
Southeast
II
832.2
189.2
76.6
16.6
1.0
1115.6
162.6
1,278.2
Northwest
123.0
120.0
255.0
97.0
5.5
600.5
61.5
662.0
In addition, preliminary results of a habitat evaluation of lands within the
MHCP study area largely confirm the results of the HMP analysis.
Approximately 10,100 acres within the City are shown to have low to very
high conservation values and the acres in question closely correspond to the
9,700+ acres within PPAs. Carlsbad's 10,141 acres of habitat constitute
about 2 percent of the 422,776 acres in the MHCP study area, and
Carlsbad's 7,225 acres of "very high" rated habitat constitute about 4 percent
of 186,346 acres with that same rating (Table 8).
Combined, Rancheros-Southeast II and Northwest represent 0.5 percent of
the rated habitats (422,776 acres) in the MHCP study area, and, as
previously noted, about 30 percent of the habitats in Carlsbad.
Approximately 1,940.2 acres are rated as "very high" and constitute less
than 1 percent of that category in the MHCP study area and 22 percent of
that category in the City.
4-26-94 Draft 41
Preliminary Draft Environmental Assessment 3. Affected Environment
Table 8
Results of MHCP Habitat Evaluation
(acres)
MHCP Participant
Carlsbad
Del Mar
Encinitas
Escondido
Oceanside
Poway
San Diego*
San Marcos
Solana Beach
Vista
Unincorporated*
TOTAL
Results of Natural Open Space Ranking
Very
High
7,225
163
2,477
2,298
3,011
5,755
4,677
2,087
74
511
158,068
186,346
High
1,516
66
417
1,558
1,330
1,969
2,591
1,134
24
162
78,820
89,587
Moderate
1,015
11
141
2,314
1,107
3,869
1,709
1,112
5
427
64,218
75,928
Low
385
1
74
1,137
247
1,972
451
1,405
0
497
64,746
70,915
Total
10,141
241
3,109
7,307
5,695
13,565
9,428
5,738
103
1,597
365,852
422,776
Other
Lands
14,776
893
8,373
15,585
21,337
11,446
6,950
9,340
2,043
9,947
134,649
235,339
TOTAL
24,917
1,134
1 1 ,482
22,892
27,032
25,011
16,378
15,078
2,146
1 1 ,544
500,501
658,115
* Includes only those lands within MHCP study area.
4-26-94 Draft 42
Preliminary Draft Environmental Assessment 4. Environmental Consequences
4. Environmental Consequences
This chapter examines the potential for significant direct and indirect
impacts resulting from the Proposed Action and No Action alternatives. It
also identifies the cumulative impacts, unavoidable adverse impacts,
relationship of short-term uses and long-term productivity, and irreversible
and irretrievable commitments of resources associated with the Proposed
Action.
A. Biological Impacts
The potential for significant impacts to biological resources has been
assessed primarily in terms of the expected removal or otherwise adverse
modification of habitat for the 66 species of concern.
1. Proposed Action and Preferred
Alternative
In the HCP/OMSP and this analysis of the Proposed Action, all species of
concern are treated as if they were federally and state listed, the removal or
adverse modification of suitable habitat for a species is treated as a taking of
that species, and any habitat in the HCP/OMSP plan area not designated as
conserved is assumed taken. Potentially significant adverse impacts are
identified in terms of whether the taking would appreciably reduce the
likelihood of the species' survival and recovery in the wild. Proposed
mitigation measures are the conservation and mitigation measures
described as part of the Proposed Action (see pages 7 to 16 of this PDEA).
a. Anticipated Adverse and Beneficial Impacts
Anticipated adverse and beneficial impacts to the 66 species of concern are
summarized in Tables 9 and 10. Table 9 summarizes potential impacts in
terms of habitat assumed taken and conserved under the HCP/OMSP.
Table 10 summarizes impacts to individual species and by plan area
component.
b. Potentially Significant Impacts
In considering where the anticipated levels of take would appreciably reduce
the likelihood of a species' survival and recovery in the wild, four key factors
were considered:
1. Would a locally or regionally significant population be eliminated or a
significant proportion of such a population be adversely affected?
2. Would the species' access to be its habitat be significantly reduced or
rendered more hazardous?
3. Would current or future efforts to protect or recover the species be
adversely affected? and
4-26-94 Draft 43
Preliminary Draft Environmental Assessment 4. Environmental Consequences
Based on the best available scientific information regarding each species of
concern and the four factors cited above, it was determined during the
HCP/OMSP planning process that the highest potential for significant
adverse impacts was associated with the removal of habitat for sensitive
plant species on Northwest and coastal California gnatcatchers and other
coastal sage scrub vertebrate species on Rancheros-Southeast II. The
potential for significant adverse impacts for each species of concern is
identified in Table 11.
c. Proposed Mitigation
The primary mitigation for the potentially significant adverse impacts to the
species of concern is the designation and management of onsite and offsite
conserved habitat as proposed in the HCP/OMSP. Project-specific impact
avoidance and mitigation measures also would be implemented to ensure
that the species of concern will not be jeopardized. With implementation of
the conservation and mitigation measures, the potential for significant
adverse impacts is reduced to level that would not appreciably reduce the
likelihood of the survival and recovery of the species of concern.
1) Onsite Conserved Habitat
Onsite conserved habitat within the plan area achieves six goals:
1. Linkages to other significant habitat areas are maintained;
2. Conserved habitat is buffered from existing and anticipated
development;
3. The conserved habitat values are representative of the regional and
local ecosystem;
4. The exclusion of areas from conserved habitat will not pose jeopardy to
listed and other species of concern;
5. Preservation of key species in each plan area component is maximized;
and
6. The City, FLCA, and other are provided with certainty regarding which
areas will be permanently conserved and which will not.
The specific configuration of conserved habitat within the plan area and the
proposal for offsite acquisitions were developed in coordination with the
USFWS, CDFG, local conservation groups, and City staff. Onsite
conservation also was weighted based on existing habitat values, with
priority given to the gnatcatcher and other sage scrub vertebrates on
Rancheros-Southeast II and to sensitive plants on Northwest. Key
considerations in the planning process are summarized below.
Rancheros-Southeast II. Conserved habitat in Rancheros-Southeast II
includes 521.41 acres that will function as a local multiple species reserve
and regional habitat linkage. The proposed configuration:
4-26-94 Draft 50
Preliminary Draff Environmental Assessment 4. Environmental Consequences
Table 11
Potential for Significant Adverse Impacts to Species of Concern
ID#Species Name and Listing Status Potential for Significant Adverse Impacts
Observed Species of Concern (N=36)
A-1
A-2
A-3
A-4
A-5
A-6
A-7
A-8
A-9
A-10
A-11
A-1 2
A-1 3
A-1 4
A-1 5
Ashy spike-moss
Selaginella cinerascens
CNPS4
California adders-tongue
Ophioglossum califomicum
C3c, CNPS4
California adophia
Adolphia calif omica
CNPS2, NCCP, OSS
Del Mar manzanita
Arctostaphylos glandulosa ssp. crasstfolia
FPE*, CNPS1B, T
Engelmann oak
Quercus engelmannii
CNPS4, OSS
Nuttall's scrub oak
Quercus dumosa
CNPS1B, OSS
Orcutt's brodiaea
Brodiaea orcuttii
C2*, CNPS1B, T
Palmer's grapplinghook
Harpagonella palmeri
CNPS2, OSS
San Diego County viguiera
Viguiera laciniata
CNPS4, NCCP
San Diego golden star
Muilla Cleveland!!
C2*. CNPS1B.T
San Diego marsh elder
Iva hayesiana
C2, CNPS2, NCCP, OSS
Southwestern spiny rush
Junctus actus var. leopoldii
CNPS4, OSS
Sticky-leaved liveforever
Dudleys viscida
C1*. CNPS1B, NCCP, OSS
Summer holly
Comarostaphylis diversifolia ssp. diversifolia
C1.CNPS1B.T
Thread-leaved brodiaea
Brodiaea filifolia
C1*, SE, CNPS1B.T
No significant adverse impacts are expected.
No significant adverse impacts are expected.
No significant adverse impacts are expected.
75% of onsite population is conserved in contiguous open
space; local and regional populations would not be
jeoparized by impacts to onsite population.
Loss of one individual will have more significance locally
than regionally; species would not be jeopardized.
Expected loss of individuals and potential habitat is not
expected to jeoparidze species' continued occurrence locally
or regionally.
Loss of populations in plan area will significantly reduce
known occurrence in City but will not signifcantly affect
regional population.
Population in plan area and City will be reduced but impacts
on regional populations would not be significant.
No significant adverse impacts are expected.
80% of population in plan area and City will be eliminated;
loss also would be regionally significant.
Loss of less than 1 00 individuals is not expected to
significantly affect the local or regional occurrence of the
species.
Loss of 1 00 individuals is not expected to significantly affect
the local or regional occurrence of the species.
No significant adverse impacts are expected.
Loss of 635 individuals will reduce the local occurrence but
is not expected to jeopardize local or regional populations of
species.
83% will be conserved onsite; loss of 17% will reduce local
occurrence of species but is not expected to jeopardize local
or regional populations.
4-26-94 Draft 51
Preliminary Draft Environmental Assessment 4. Environmental Consequences
Table 11 (continued)
Potential for Significant Adverse Impacts to Species of Concern
ID#
A-16
A-17
A-18
A-19
A-20
A-21
A-22
A-23
A-24
A-25
A-26
A-27
A-28
A-29
A-30
Species Name and Listing Status
Wart-stemmed ceanothus
Ceanothus verrucosus
C2, CNPS2, T
Western dichondra
Dichondra occidentalis
C3c, CNPS4, NCCP, OSS
Western spadefoot toad
Spea hammondii
CSC, NCCP, T
Coastal rosy boa
Lichanura trivirgata rosafusca
C2, CSC, NCCP, OSS
Coastal western whiptail
Cnemidophorus tigris muttiscutatus
C2, CSC, NCCP, OSS
Northern red diamond rattlesnake
Crotalus ruber ruber
C2, CSC, NCCP, OSS
Orange-throated whiptail
Cnemidophorus hyperythrus beldingi
C2, CSC, NCCP, T
San Diego horned lizard
Phrynosoma coronatum blainvillei
C2, CSC, NCCP, T
Bell's sage sparrow
Amphispiza belli belli
C2, CSC, MBTA, NCCP, OSS
Burrowing owl
Speotyto cunicularia
CSC, MBTA, T
Coastal California gnatcatcher
Pol/optila califomica califomica
FT, CSC, MBTA, NCCP, T
Cooper's hawk
Accipiter cooperi
CSC, MBTA, T
Loggerhead shrike
Lanius ludovicianus
C2, CSC, MBTA, NCCP, OSS
Northern harrier
Circus cyaneus
CSC, MBTA, T
Southern California rufous-crowned sparrow
Aimophila ruficeps canescens
C2, CSC, MBTA, NCCP, T
Potential for Significant Averse Impacts
No significant adverse impacts are expected.
Loss of three populations will reduce local occurrence of
species but is not expected to jeopardize local or regional
populations.
Loss of potential habitat in plan area is not expected to
preclude or signficiantly reduce the odds of the survival of
any known local or regional populations.
Loss of suitable habitat in plan area would reduce the local
occurrence of the species but is not expected to eliminate
any local or regional population.
Loss of suitable habitat in plan area would reduce the local
occurrence of the species but is not expected to eliminate
any local or regional population.
Loss of suitable habitat in plan area would reduce the local
occurrence of the species but is not expected to eliminate
any local or regional population.
Loss of suitable habitat in plan area would reduce the local
occurrence of the species but is not expected to eliminate
any local or regional population.
Loss of suitable habitat in plan area would reduce the local
occurrence of the species but is not expected to eliminate
any local or regional population.
Loss of suitable habitat in plan area would reduce the local
occurrence of the species but is not expected to eliminate
any local or regional population.
Loss of suitable habitat would likely eliminate the owl's
occurrence in the plan area and reduce amount of habitat
available to local and regional populations.
Loss of suitable habitat and take of up to 31 pairs would
reduce local and regional occurrence of species and access
of dispersing birds to new habitat.
Loss of suitable habitat in plan area would reduce the local
occurrence of the species but is not expected to eliminate
any local or regional population.
Loss of suitable habitat in plan area would reduce the local
occurrence of the species but is not expected to eliminate
any local or regional population.
Loss of suitable habitat in plan area would reduce the local
occurrence of the species but is not expected to eliminate
any local or regional population.
Loss of suitable habitat in plan area would reduce the local
occurrence of the species but is not expected to eliminate
any local or regional population.
4-26-94 Draft 52
Preliminary Draft Environmental Assessment 4. Environmental Consequences
Table 11 (continued)
Potential for Significant Adverse Impacts to Species of Concern
ID#
A-31
A-32
A-33
A-34
A-35
A-36
Species Name and Listing Status
Tricolored blackbird
Agelaius tricolor
C2, CSC, MBTA, NCCP, T
Yellow-breasted chat
Icteria virens
CSC, MBTA, OSS
Yellow warbler
Dendroica petechia brewsteri
CSC, MBTA, OSS
Northwestern San Diego pocket mouse
Chaetodipus fallax fallax
C2, CSC, NCCP, T
San Diego black-tailed jackrabbit
Lepus califomicus bennettii
C2, CSC, NCCP, OSS
San Diego desert woodrat
Neotoma lepida intermedia
C2, CSC, OSS
Potential for Significant Adverse Impacts
Loss of suitable foraging habitat in plan area would reduce
potential for increased occurrence of the species; no
significant adverse impacts are expected.
No significant adverse impacts are expected.
No significant adverse impacts are expected.
Loss of suitable habitat in plan area would reduce the local
occurrence of the species but is not expected to eliminate
any local or regional population.
Loss of suitable habitat in plan area would reduce the local
occurrence of the species but is not expected to eliminate
any local or regional population.
Loss of suitable habitat in plan area would reduce the local
occurrence of the species but is not expected to eliminate
any local or regional population.
Potentially Occurring Species of Concern (N=30)
B-1
B-2
B-3
B-4
B-5
B-6
B-7
B-8
B-9
Blochman's dudleya
Dudleya blochmaniae ssp. blochmaniae
CNPS1B, NCCP, OSS
Cliff spurge
Euphorbia misera
CNPS2, NCCP, OSS
Coast barrel cactus
Ferocactus viridescens
C2*, CNPS2, NCCP, OSS
Del Mar sand aster
Corethrogyne filaginifolia var. linfolia
FPT, CNPS1B, NCCP, T
Encinitas baccharis
Baccharis vanessae
FPE, SE, CNPS1B, T
Orcutt's hazardia
Hazard/a orcuttii
C2, CNPS1B
Orcutt's spineflower
Chorizanthe orcuttiana
FPE*, SE, CNPS1B, NCCP
San Diego ambrosia
Ambrosia pumila
C2*, CNPS1B, NCCP
San Diego sagewort
Artemisia palmeri
CNPS2, NCCP, OSS
No significant adverse impacts to local or regional
populations are expected, even if species occurs in plan
area.
No significant adverse impacts to local or regional
populations are expected, even if species occurs in plan
area.
No significant adverse impacts to local or regional
populations are expected, even if species occurs in plan
area.
Because of rarity of species, loss of individuals that might
be discovered in plan area would likely be locally and
regionally significant.
Because of rarity of species, loss of individuals that might
be discovered in plan area would likely be locally and
regionally significant.
No significant adverse impacts to local or regional
populations are expected, even if species occurs in plan
area.
Because of rarity of species, loss of individuals that might
be discovered in plan area would likely be locally and
regionally significant.
Because of rarity of species, loss of individuals that might
be discovered in plan area would likely be locally and
regionally significant.
No significant adverse impacts to local or regional
populations are expected, even if species occurs in plan
area.
4-26-94 Draff 53
Preliminary Draft Environmental Assessment 4. Environmental Consequences
Table 11 (continued)
Potential for Significant Adverse Impacts Species of Concern
ID#
B-10
B-11
B-12
B-13
B-14
B-15
B-16
B-17
B-18
B-19
B-20
B-21
B-22
B-23
B-24
Species Name and Listing Status
San Diego thornmint
Acanthomintha ilicifolia
C1', SE, CNPS1B, NCCP.T
Harbison's dun skipper
Euphyes vestris harbinsoni
C2,T
Hermes copper
Lycaena henries
C2*. OSS
Quino checkerspot
Euphydryas editha quino
cr.oss
California red-legged frog
Rana aurora draytonii
FPE, CSC, OSS
Coast patch-nosed snake
Salvadora hexalepis virgultea
C2. CSC, NCCP, OSS
Coronado skink
Eumeces skiltonianus interparietalis
C2, CSC, NCCP, OSS
San Diego banded gecko
Coleonyx variegatus abbotti
C2, CSC, NCCP, OSS
San Diego ringneck snake
Diadophis punctatus similis
C2, CSC, OSS
Silvery legless lizard
Anniella nigra argentea
CSC, OSS
Southwestern pond turtle
Clemmys marmorata pallidacr, csc, NCCP, oss
Two-striped garter snake
Thamnophis hammondii
C2, CSC, OSS
California horned lark
Eremophila alpestris actia
C2, CSC, MBTA, NCCP, OSS
Least Bell's vireo
Vireo bellii pusillus
FE, SE, MBTA, T
San Diego cactus wren
Campylorhynchus bninneicapillus couesi
C2, CSC, NCCP, T
Potential for Significant Adverse Impacts
Because of rarity of species, loss of individuals that might
be discovered in plan area would likely be locally and
regionally significant.
No significant adverse impacts to local or regional
populations are expected, even if species occurs in plan
area.
No significant adverse impacts to local or regional
populations are expected, even if species occurs in plan
area.
Because of rarity of species, loss of individuals that might
be discovered in plan area would likely be locally and
regionally significant.
Because of rarity of species, loss of individuals that might
be discovered in plan area would likely be locally and
regionally significant.
No significant adverse impacts to local or regional
populations are expected, even if species occurs in plan
area.
No significant adverse impacts to local or regional
populations are expected, even if species occurs in plan
area.
No significant adverse impacts to local or regional
populations are expected, even if species occurs in plan
area.
No significant adverse impacts to local or regional
populations are expected, even if species occurs in plan
area.
No significant adverse impacts to local or regional
populations are expected, even if species occurs in plan
area.
Because of rarity of species, loss of individuals that might
be discovered in plan area would likely be locally and
regionally significant.
No significant adverse impacts to local or regional
populations are expected, even if species occurs in plan
area.
No significant adverse impacts to local or regional
populations are expected, even if species occurs in plan
area.
No significant adverse impacts to local or regional
populations are expected, even if species occurs in plan
area.
No significant adverse impacts to local or regional
populations are expected, even if species occurs in plan
area.
4-26-94 Draft 54
Preliminary Draft Environmental Assessment 4. Environmental Consequences
Table 11 (continued)
Potential for Significant Adverse Impacts to Species of Concern
ID#
B-25
B-26
B-27
B-28
B-29
B-30
Species Name and Listing Status
Southwestern willow flycatcher
Empidonax traillii extimus
FPE, SE, FSS, MBTA, T
California mastiff bat
Eumops perotis califomicus
C2, CSC, T
Dulzura California pocket mouse
Chaetodipus califomicus femoralis
C2, CSC, T
Pacific pocket mouse
Perognathus longimembris pacificus
FEE, CSC, NCCP, OSS
Southern grasshopper mouse
Onychomys torridus ramona
C2, CSC, NCCP, OSS
Townsend's western big-eared bat
Plecotus townsendii townsendii
C2, CSC, T
Potential for Significant Adverse Impacts
No significant adverse impacts to local or regional
populations are expected, even if species occurs in plan
area.
No significant adverse impacts to local or regional
populations are expected, even if species occurs in plan
area.
No significant adverse impacts to local or regional
populations are expected, even if species occurs in plan
area.
No significant adverse impacts are expected; species not
expected to occur in plan area.
No significant adverse impacts to local or regional
populations are expected, even if species occurs in plan
area.
No significant adverse impacts to local or regional
populations are expected, even if species occurs in plan
area.
ID Codes
A-
B-
Species observed or assumed to occur in one or both plan area components.
Species potentially occurring in habitats in one or both plan area components.
Status Codes
C1 Category 1 candidate for federal listing
C2 Category 2 candidate for federal listing
C3c Category 3c candidate for federal listing
CNPS Listed by the California Native Plant Society as:
(1B) rare or endangered in California and elsewhere
(2) rare or endangered in California and more common elsewhere
(4) plants of limited distribution
CSC Identified by CDFG as a species of special concern in California
FE Listed as endangered under the federal ESA
FEE Emergency listed as endangered under the federal ESA
FPE Proposed for federal listing as endangered
FPT Proposed for federal listing as threatened
FSS Identified by federal agencies as a sensitive species
FT Listed as threatened under the federal ESA
MBTA Protected by the Migratory Bird Treaty Act
NCCP On the list of sensitive species for the NCCP program
OSS "Other Sensitive Species" identified in draft Carlsbad HMP
ST Listed as threatened under the California ESA
T Target species for Carlsbad HMP and North County MHCP
* On the list of species covered by a settlement agreement between USFWS and
environmental groups who filed suit regarding the timely listing of C1 and C2 species.
4-26-94 Draft 55
Preliminary Draft Environmental Assessment 4. Environmental Consequences
• Preserves 426.67 acres of coastal sage scrub (51 percent of the 832.2
acres in the plan area component) and 18 gnatcatcher use areas;
• Maintains two primary habitat linkages within the larger regional
ecosystem, one across Southeast II and one along San Marcos Creek;
and
• Concentrates future land uses adjacent to existing development and in
relation to the ultimate alignment of Rancho Santa Fe Road.
Southeast II. Priority was given to conserving sage scrub occupied by
resident gnatcatcher pairs in areas that also would preserve the habitat
linkages within and leading out of Southeast II. As previously shown on
Figures 1 and 2, the proposed configuration within Southeast II preserves a
corridor that is 1,000 feet wide at its narrowest point and widens to
approximately 1,800 feet at the eastern end where it crosses Rancho Santa
Fe Road. Approximately 74 acres within the corridor is native and non-
native habitat, including 47.2 acres of existing sage scrub. The corridor
retains all of the use areas of three gnatcatcher pairs (numbers 9, 11, and
12) and most of the use areas of two other pairs (numbers 15 and 18). The
corridor also retains existing linkages with designated conserved habitat in
San Marcos Creek and Rancheros and linkages to natural open space
outside the plan area.
San Marcos Creek. Conserved habitat along San Marcos Creek preserves
a second linkage with the regional ecosystem, ensures connectivity between
conserved habitat in Southeast II and Rancheros, and includes non-sage
scrub habitats and species in the "micro-ecosystem" captured by the
configuration. Sensitive species in the conserved habitat include sticky-
leaved liveforever, spiny rush, San Diego marsh elder, yellow warbler,
yellow-breasted chat and others. The conserved area forms a corridor that
is in excess of 1,000 feet wide until it reaches the Rancho Santa Fe Road
crossing and enters the City of San Marcos. Additionally, there are at least
70 feet of vertical separation between the creek bottom and the road
crossing. This design maximizes the contiguity of the open space and
minimizes the overall edge effect of the proposed configuration.
Rancheros. The primary consideration in Rancheros was the need to
reconcile conservation and land use priorities for lands with high biological
and development value. As originally proposed in the La Costa Master Plan,
Rancheros was designated for large lot ranchette-style residential
development. This concept was replanned in the context of the HCP/OMSP
to cluster new housing near existing development on the western and
northern borders and on the upper terraces. As a result, the highest density
occupied gnatcatcher habitat was preserved onsite. Priority also was given
to minimizing edge effects and conserving two-thirds of the gnatcatcher
pairs onsite (10 of 15). The resulting configuration preserves a contiguous
band of primarily sage scrub habitat that adjoins San Marcos Creek and is
over 0.5-mile wide.
Northwest. Conserved habitat in Northwest includes 123.69 acres selected
to preserve plant species of concern and maintain connectivity through the
site. Four primary considerations affected the design of conserved habitat:
4-26-94 Draft 56
Preliminary Draff Environmental Assessment 4. Environmental Consequences
1. The presence and relative abundance of rare plants associated with
native grassland (thread-leaved brodiaea, Palmer's grapplinghook) and
southern maritime chaparral (Del Mar manzanita, summer holly, wart-
stemmed ceanothus, Nuttall's scrub oak);
2. The relatively fragmented nature of the sage scrub (by comparison with
Rancheros-Southeast II) but high number of gnatcatchers;
3. The bifurcation of the natural habitats by the La Costa Golf Course; and
4. The existing albeit narrow habitat linkages with natural open space to the
northeast and to Rancheros to the southeast.
Following a consideration of each of these factors, two interrelated decisions
were made: onsite conservation would focus on sensitive plants and would
be supplemented by offsite acquisitions of coastal sage scrub. As proposed
in the HCP/OMSP, the onsite conserved habitat preserves a majority of the
sensitive plant species and provides connections to and through the site
from south to north and to the east. Sensitive plant species conserved
include 795 Del mar manzanita individuals and approximately 5,800 thread-
leaved brodiaea individuals. Additionally, onsite restoration of about 11
acres of sage scrub is proposed for a portion of conserved habitat that
intersects a utility easement which currently serves as a narrow wildlife
corridor. The restoration will provide a "stepping stone" of habitat for
dispersing and breeding bird species of concern (including the gnatcatcher)
as well as cover for dispersing predators such as coyotes.
2) Offsite Conserved Habitat
Offsite conservation will be used to provide replacement habitat for the sage
scrub that ultimately will be removed from Northwest and to bolster the
regional linkages conserved under the plan. It also will incidentally benefit
other species of concern.
Up to 240 acres of coastal sage scrub occupied by gnatcatchers or otherwise
acceptable to USFWS and CDFG will be acquired by FLCA, with at least
120 acres in locations that will strengthen the habitat linkage between
Southeast II and the regional coastal sage scrub community that extends
into the San Dieguito and San Pasqual River Valley. No specific locations
have been proposed for acquisition at this time.
3) Habitat Management
Interim and long-term management of conserved habitat is described under
the Proposed Action and in the HCP/OMSP (see pages 11 and 12 of this
PDEA and pages 88 to 90 of the HCP/OMSP).
4) Impact Avoidance, Minimization, and Mitigation
Project-specific measures to avoid, minimize, and mitigate impacts to
habitats and species of concern in the plan area are described under the
Proposed Action and in the HCP/OMSP (see pages 12 to 16 of this PDEA
and pages 90 to 94 of the HCP/OMSP).
4-26-94 Draft 57
Preliminary Draft Environmental Assessment 4. Environmental Consequences
2. No Action
Under the No Action alternative, most coastal scrub in the plan area
(approximately 955 acres) would be constrained from development if
occupied by gnatcatchers or other federally listed species; however, the
habitat would not be managed for the benefit the resident species and the
protection would not necessarily be permanent. Riparian and other wetland
habitats in the plan area (approximately 120 acres) would remain subject to
protections provided under the Clean Water Act and, if federally listed
species are present, under the ESA. Habitats not currently occupied by
listed species or otherwise protected by federal law (approximately 815
acres of grassland, chaparral, and disturbed habitat) would not be
constrained from development unless subject to special protection under
state or local laws.
B. Land Use Impacts
1. Proposed Action and Preferred
Alternative
Under the Proposed Action, public and private land uses would proceed on
lands outside conserved habitat in the plan area without further mitigation for
wildlife impacts being required. The limitations proposed on land uses under
the HCP/OMSP would not significantly alter the uses currently designated
for the land in the City's General Plan or those proposed by the landowners.
Consequently, no significant adverse impacts would result to otherwise
lawful existing and proposed uses of the land.
2. No Action
Under the No Action alternative, land uses in the plan area would remain
subject to existing policies, plans, and laws. Development would continue to
be constrained in areas occupied by the gnatcatcher or other federally listed
species. However, this constraint is imposed by the federal ESA and would
not be caused by the No Action alternative.
Landowners and project proponents could pursue authorization for take of
listed species on a project-by-project and species-by-species basis or under
the auspices of the HMP and MHCP; projects in areas not occupied by listed
species would not require federal authorization. However, given the existing
distribution of habitat occupied by listed species, otherwise lawful land uses
would likely require significant replanning to avoid take and/or would
potentially be significantly delayed until the requisite authorizations could be
secured. Such replanning and delays could have significant adverse
impacts on the City's ability to implement its General Plan and on FLCA's
and other landowners' abilities to use their private property.
4-26-94 Draft 58
Preliminary Draft Environmental Assessment 4. Environmental Consequences
C. Social and Economic Impacts
1. Proposed Action and Preferred
Alternative
The Proposed Action would allow the City to achieve its General Plan goals
regarding the provision of housing, transportation levels of service, and open
space and the quality and character of its communities. It also would allow
the City, Service, and Department to achieve conservation benefits without
having to bear the costs of acquiring private property. Additionally, the
Proposed Action would provide a level of certainty necessary for economic
development of the properties covered by the plan to resume. No significant
adverse social or economic impacts would result from the Proposed Action.
2. No Action
Under the No Action alternative, social and economic goals connected with
uses of the plan area would remain secondary to the protection of federally
listed species until such time as authorizations for take were given for
individual projects or under the auspices of local or regional program. It also
is possible that the cost of permanently conserving habitat in the plan area
would have to be assumed by the City or other public agency. Depending
on the ultimate disposition of the properties, such circumstances could have
significant adverse impacts on the City's ability to achieve its General Plan
goals and for property owners and local communities to realize the benefits
of resumed economic activity.
D. Cumulative Impacts
Cumulative effects are two or more separate effects that, when considered
together, increase or compound environmental effects. Such effects may
result from the combined effects of different components of the same
project, from effects of the Proposed Action over time, from different
projects in the same the region which have occurred in the past or are
approved for reasonably foreseeable, or from effects of the Proposed Action
in conjunction with natural events.
Potentially significant adverse cumulative effects have been identified in
connection with the expected effects on biological resources. The effects
and proposed mitigation are as follows.
• Regarding the combined elements of the Proposed Action, potentially
significant cumulative impacts could result from the expected loss of
suitable habitat for and direct take of individual species of concern. The
HCP/OMSP minimizes and mitigates such impacts through habitat-
based conservation and mitigation measures, including the management
and monitoring of conserved habitat for the benefit of the species of
concern.
4-26-94 Draff 59
Preliminary Draft Environmental Assessment 4. Environmental Consequences
• Regarding the effects of the Proposed Action over time, the potential for
significant cumulative impacts was partly taken into account by treating
all habitat outside of conserved areas as "taken" in the analysis of direct
impacts. The HCP/OMSP minimizes and mitigates such impacts
through its provisions for long-term management and monitoring of
conserved habitat, project-specific impact phasing and monitoring, and
annual and periodic comprehensive review requirements.
• Regarding effects of the Proposed Action in combination with other
projects, it is possible that projects on adjacent lands and elsewhere in
the City and region could render the HCP/OMSP conservation and
mitigation measures ineffectual. The HCP/OMSP reduces the likelihood
of such circumstances by including provisions for cooperative efforts
with adjacent landowners and financial support for completion of the
HMP. The likelihood of such circumstances is further reduced by the
fact that projects involving listed species would be subject to the same
approval criteria as the HCP/OMSP. No significant cumulative adverse
impacts are likely to result from the Proposed Action in combination with
otherwise lawful projects.
• Regarding effects of the Proposed Action in combination with natural
events, significant adverse cumulative effects could result if natural
disasters irreversibly destroyed the conserved habitat or if catastrophic
diseases afflicted the conserved species. The HCP/OMSP minimizes
the risk of such impacts by including provisions for fire management,
reserve monitoring, and procedures in response to unforeseen
circumstances.
No significant adverse cumulative effects were identified in connection with
the land use, social, or economic effects of the Proposed Action.
E. Unavoidable Adverse Effects
Under the Proposed Action, the authorized take of federally listed species
will constitute an unavoidable adverse effect on the species of concern; loss
of habitat due to development outside of conserved habitat areas likewise
will be an unavoidable adverse effect. The HCP/OMSP minimizes and
mitigates unavoidable effects primarily through the conservation and
management of onsite and offsite habitat for the species of concern.
F. Relationship of Short-term Uses and
Long-term Productivity
Consistent with the intent of the ESA and NCCP program, the Proposed
Action would balance short-term and long-term uses of land for urban
development and wildlife conservation purposes within the plan area. That
balance requires certain tradeoffs in development and conservation
priorities, as reflected in the planning process by which onsite conserved
habitat was configured. The HCP/OMSP minimizes and mitigates the
impacts of such tradeoffs by:
4-26-94 Draft 60
Preliminary Draft Environmental Assessment 4. Environmental Consequences
• Providing for the preservation and management of up to 885.1 acres of
coastal sage scrub and other habitats in key locations that will support
viable populations of indigenous plants and animals and maintain the
link between the City's natural communities and the larger regional
ecosystem; and
• Reconciling the current and future needs of diverse public and private
interests through a cooperative effort that will sustain and improve
sensitive biological resources while allowing necessary economic
development and anticipated urbanization to proceed.
G. Irreversible and Irretrievable
Commitments of Resources
Under the Proposed Action, development outside of conserved habitat will
result in irreversible losses of biological resources where hardscape replaces
natural habitats. The phasing of development and transportation
improvements in the plan area also is expected to result in irretrievable
losses. Both types of impacts will be minimized and mitigated through the
long-term benefits of the conservation program and through the project-
specific measures identified in the HCP/OMSP.
4-26-94 Draft 61
Preliminary Draft Environmental Assessment 5. Persons and Agencies Consulted
5. Persons and Agencies Consulted
The following persons and agencies were consulted during the preparation of
this PDEA.
Rick Alexander, The Rick Alexander Company
John Barone, The Fieldstone Company
Jean K. Carr, Carr Consulting
Bill Hofman, Hofman Planning Associates
Michael Holzmiller, City of Carlsbad
Barry Jones, Sweetwater Environmental Biologists, Inc.
Lisa King, Hofman Planning Associates
Lindell Marsh, Siemon Larsen & Marsh
Michael McCollum, McCollum and Associates
Don Rideout, City of Carlsbad
Ed Sauls, The Sauls Company
4-26-94 Draft 62
Implementation Agreement
for the HCP/OMSP
for Properties in the Southeast Quadrant
of the City of Carlsbad, California
Revised Draft
April 13, 1994
By and Between:
United States Rsh and Wildlife Service,
The California Department of Fish and Game,
The City of Carlsbad
and
Fieldstone/La Costa Associates Limited Partnership
DRAFT
IMPLEMENTATION AGREEMENT REGARDING
THE CITY OF CARLSBAD/FTELDSTONE/LA COSTA ASSOCIATES
HABITAT CONSERVATION PLAN/ON-GOING MULTI-SPECIES PLAN
BY AND BETWEEN:
UNITED STATES FISH AND WILDLIFE SERVICE,
THE CALIFORNIA DEPARTMENT OF FISH AND GAME,
THE CITY OF CARLSBAD
and
FIELDSTONE/LA COSTA ASSOCIATES LIMITED PARTNERSHIP
Prepared on December 7, 1993 (revised 4-13-94)
TABLE OF CONTENTS
Page
I. DEFINITIONS AND EXHIBITS 2
A. DEFINITIONS 2
"Agreement" 2
"Birds of Concern" 2
"Budget" 2
"CEQA" 2
"CESA" 3
"CESA Listed Species of Concern" 3
"City" 3
"City Wildlife Constraints and Requirements" ... 3
"Conservation and Management" 4
"Conservation Entity" 4
"Conserved Habitat" 5
"Conserved Habitat Maintenance Charge" 5
"Construction/Build-Out Impact Minimization and
Mitigation Plan" 5
"DFG" •. 5
"Effective Date" 6
"ESA" 6
"ESA Listed Species of Concern" 6
"Existing Rancho Santa Fe Road" 6
"Fieldstone" • 6
"Fixed Management Duties" 7
"Fuel Management Zones" 7
"Future Rancho Santa Fe Road" 7
"FWS" 7
"Gnatcatcher" 8
"Habitat Conservation Plan/On-Going Multi-
Species Plan" or "HCP/OMSP" 8
"HMP" 8
"HMP Conservancy" 8
"HMP Program" 9
"Homeowners Association" 9
"Impact Area" 9
"Incidental Take Statement" 10
"JPA Program" 10
"Long Term Management Entity" 11
"MAG Parcel" 11
"MAG Properties" 11
"Management Advisory Committee" 11
"Map" 11
"MBTA Permit" 12
"MHCP" 12
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"Migratory Bird Treaty Act" 12
"Minor Adjustment" 12
"Mitigation" 13
"Mitigation Lands" 13
"NCCP" 13
"NCCP Act" 13
"NCCP Program" 14
"NEPA" 14
"Northwest Conserved Habitat Parcels" 14
"Northwest Subarea" 14
"Ongoing Management Duties" 14
"Parties" or "Party" 15
"Permittee" or "Permittees" 15
"Plan Activities" 15
"Plan Area" 16
"Plan Operator" 16
"Project" 16
"Special Rule" 17
"Public Benefit Agreement" 17
"Rancheros-Southeast II Conserved Habitat
Parcel" 17
"Rancheros-Southeast II Subarea" 18
"Rancho Santa Fe Road Realignment and Mass
Grading Project" 18
"SDG&E" 18
"Section 4(d)" 18
"Section 10(a)" 19
"Section 10(a) Permit" 19
"Section 2081" 19
"Section 2081 Permit" . 19
"Section 2835" 20
"Significant Adverse Change" 20
"Species of Concern" 20
"Subarea" or "Subareas" 20
"Take" and "Taking" 20
"Term" 20
"Unforeseen" 20
"Unforeseen Circumstances" 21
"Wildlife" 21
"Wildlife Agency" 21
B. EXHIBITS 21
Exhibit 1: The Map 21
Exhibit 2: Map of Existing and Future Rancho
Santa Fe Road 21
Exhibit 3: List of Species of Concern .... 21
Exhibit 4: Form of Conservation Easement
Deed 21
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Exhibit 5: Form of Section 2081 Permit .... 21
Exhibit 6: Form of Certificate of Public
Purpose 22
Exhibit 7: Legal Description of the
__ Northwest Conserved Habitat
Parcels 22
Exhibit 8: Legal Description of the
Rancheros-Southeast II Conserved
Habitat Parcel 22
Exhibit 9: Condition of Title 22
II. RECITALS 22
A. PLAN AREA OWNERSHIP AND THE PROJECT 22
B. SPECIES ADDRESSED BY THIS AGREEMENT AND THEIR
REGULATION 23
C. THE HABITAT CONSERVATION PLAN 24
D. AUTHORITY OF FWS . . 24
E. AUTHORITY OF DFG 25
F. RELATIONSHIP TO THE NCCP PROGRAM AND THE
PROPOSED RULE 26
G. AUTHORITY OF THE CITY 29
H. LEGAL REQUIREMENTS AND ASSURANCES 30
1. Requirements and Purposes of the HCP/OMSP . . 30
2. Assurances from Fieldstone and the City ... 31
3. Assurances from FWS 31
4. Assurances from DFG 33
5. Assurances from the City 34
I. RELATIONSHIP TO OTHER PLANNING AND REGULATORY
PROGRAMS 35
1. The City 36
2. The MHCP 37
3 . The JPA Program 38
III. TERM OF THE AGREEMENT 39
A. STATED TERM 39
B. OTHER PERMITS, AGREEMENTS AND APPROVALS 39
C. EFFECT OF A SECTION 10(a) PERMIT, INCIDENTAL
TAKE STATEMENT OR SECTION 2081 PERMIT 41
D. PERMANENCE OF CONSERVED HABITAT 41
E. ABANDONMENT OF DEVELOPMENT 42
F. DETERMINATION OF INVALIDITY OR IMPOSITION OF
FURTHER CONSERVATION OR MITIGATION MEASURES ... 43
G. MODIFICATION OF MELROSE AVENUE 43
H. MATERIAL ADVERSE IMPACT ON PLAN ACTIVITIES .... 44
I. NOTICE, MEET AND CONFER PROCEDURES APPLICABLE TO
WITHDRAWAL AND TERMINATION PURSUANT TO CERTAIN
SECTIONS OF THIS ARTICLE III 45
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J. CONVEYANCE OF THE CONSERVED HABITAT AND THE
MITIGATION LANDS OR DELEGATION OF MANAGEMENT AND
FUNDING DUTIES TO THE LONG TERM MANAGEMENT
ENTITY 46
IV. CONDITIONS PRECEDENT TO PERFORMANCE BY FIELDSTONE OF
THE OBLIGATIONS CONTAINED IN THIS AGREEMENT 46
A. PUBLIC BENEFIT AGREEMENT 47
B. ENVIRONMENTAL REVIEW OF THE HCP/OMSP, THIS
AGREEMENT AND THE PUBLIC BENEFIT AGREEMENT .... 47
V. COVENANTS AND OBLIGATIONS OF FIELDSTONE AND, UPON
ASSIGNMENT, ITS SUCCESSORS 48
A. DEDICATION OF CONSERVED HABITAT AND MITIGATION
LANDS TO THE CONSERVATION ENTITY 48
1. Dedication of Conserved Habitat Owned by
Fieldstone 48
2. Acquisition and Dedication of the
Mitigation Lands 49
a. Acquisition of the Mitigation Lands . . 49
b. Dedication of the Mitigation Lands ... 50
3. Certificate of Public Purpose 51
4. Condition of Conserved Habitat Title .... 51
5. Condition of Mitigation Lands Title 52
6. Effect of Conveyance of Fee Title to the
Conservation Entity 52
B. AUTHORIZATION TO TAKE SPECIES OF CONCERN WITHIN
IMPACT AREAS 53
1. Authorization of Take Within the Rancheros-
Southeast II Subarea and Rancho Santa Fe
Road 53
2. Authorization to Take Species of Concern
Within the Northwest Subarea 54
3 . No Final Approval by the City 55
C. MANAGEMENT AND OPERATION OF CONSERVED HABITAT
AND THE MITIGATION LANDS BY FIELDSTONE 55
1. Fieldstone's Ongoing Management Duties ... 56
2. Fieldstone's Fixed Management Duties .... 57
3. Funding 59
a. Funding Ongoing Management Duties ... 59
b. Funding Fixed Management Duties .... 59
c. The Budget and Other Funds 59
4. No Further Management Duties 60
D. CONVEYANCE OF CONSERVED HABITAT AND THE
MITIGATION LANDS OR DELEGATION OF MANAGEMENT
RESPONSIBILITIES TO THE LONG TERM MANAGEMENT
ENTITY 61
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1. Conveyance or Delegation to the Long Term
Management Entity in General 61
a. HMP Conservancy Favored as Long Term
Management Entity 62
— b. Alternative Long Term Management
Entities 62
2. Conveyance or Delegation to a Homeowners
Association as Long Term Management Entity . 63
3. Condition of Title 64
E. LONG TERM MANAGEMENT OF CONSERVED HABITAT AND
THE MITIGATION LANDS AFTER FEE CONVEYANCE OR
DELEGATION OF DUTIES 65
1. Termination of Fieldstone's Ongoing
Management Duties and Funding Obligations
and Assumption of Such Obligations 65
2. Termination of Fieldstone's Fixed
Management Duties and Funding Obligations
and Assumption of Such Obligations 66
3. Management and Funding After Fee Conveyance
or Delegation of Duties 66
a. The Management Advisory Committee ... 66
b. Long Term Funding 68
(1) Long Term Funding by the City ... 68
(2) Long Term Funding by the
Homeowners Association 69
c. Coordination of Conservation and
Management Measures With Other
Conservation Programs 71
F. VALLECITOS WAATER DISTRICT LANDS 72
G. FUNDING OF OTHER CONSERVATION PROGRAMS 73
1. The City HMP Program 73
2. Research 73
VI. FINDINGS AND DETERMINATIONS 74
A. FINDINGS AND DETERMINATIONS BY FWS UNDER ESA ... 74
B. FINDINGS AND DETERMINATIONS BY FWS UNDER THE
MIGRATORY BIRD TREATY ACT 76
C. FINDINGS AND DETERMINATIONS BY DFG 76
D. FINDINGS AND DETERMINATIONS BY THE CITY 80
VII. COVENANTS AND OBLIGATIONS OP THE CITY 81
A. IN GENERAL 81
B. NO FURTHER MITIGATION REQUIRED IN COMPLIANCE
WITH CEQA OR CITY WILDLIFE CONSTRAINTS AND
REQUIREMENTS 82
C. EXECUTION OF THE PUBLIC BENEFIT AGREEMENT .... 83
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D. MODIFICATION OF MELROSE AVENUE 83
E. CONDUCTING ENVIRONMENTAL REVIEW OF THE PUBLIC
BENEFIT AGREEMENT, AND THE PROJECT 84
F. CONDITIONS OF DEVELOPMENT OF THE MAG PARCEL ... 84
G. PARTICIPATION ON THE MANAGEMENT ADVISORY
COMMITTEE 85
1. Attendance 85
2. Rules, Regulations and Ordinances 85
H. CREATION OF THE HMP CONSERVANCY 86
I. COOPERATION IN DESIGN AND REVIEW AND IN SEEKING
ASSURANCES 86
1. Cooperation in Design and Review of
Utilities and Public Service Facilities ... 86
2. Cooperation With Respect to Development of
Alternative Criteria for Mitigation Lands . . 87
3. Cooperation in Reviewing the Management
Plan Prepared by Fields tone 87
4. Cooperation With Respect to Seeking
Relocation of SDG&E Easements 88
5. Cooperation to Obtain Assurances from the
Vallecitos Water District 89
J. REVIEW AND APPROVALS 89
1. Construction/Build-Out Impact Minimization
and Mitigation Plan 89
2. Alternative Long Term Management Entity ... 90
K. COORDINATION OF CONSERVATION AND MANAGEMENT
MEASURES WITH OTHER CONSERVATION PROGRAMS .... 90
VIII. OBLIGATIONS OF THE CITY AND FIELDSTONE 90
A. COOPERATION WITH RESPECT TO THE SAN MARCOS CREEK
CORRIDOR 90
B. COOPERATION WITH RESPECT TO MINIMIZATION AND
MITIGATION OF ANY IMPACTS RELATED TO RELOCATION
OF SDG&E EASEMENTS 91
IX. COVENANTS AND OBLIGATIONS OF FWS 92
A. IN GENERAL 92
B. NOTICE OF THE HCP/OMSP IN PROPOSED RULES
AFFECTING ANY SPECIES OF CONCERN 93
C. ISSUANCE OF A SECTION 10(a) PERMIT OR AN
INCIDENTAL TAKE STATEMENT 93
D. MONITORING OF A SECTION 10(a) PERMIT OR AN
INCIDENTAL TAKE STATEMENT 96
E. ISSUANCE OF A MBTA PERMIT 96
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X. COVENANTS AND OBLIGATIONS OF DFG 97
A. IN GENERAL 98
B. NOTICE OF PROPOSED RULES AFFECTING ANY SPECIES
OF CONCERN 98
C. ISSUANCE OF A SECTION 2081 PERMIT 98
D. MONITORING OF A SECTION 2081 PERMIT 100
XI. COVENANTS AND OBLIGATIONS OF FWS AND DFG 101
A. REVIEW OF ANNUAL MANAGEMENT PLAN AND
PARTICIPATION ON THE MANAGEMENT ADVISORY
COMMITTEE 101
1. Annual Review of Fieldstone's Management
Plan 101
2. Participation on the Management Advisory
Committee 102
a. Attendance 102
b. Consultation 102
B. SUPPLEMENTAL ENFORCEMENT 102
C. COOPERATION IN DESIGN OF UTILITIES AND PUBLIC
SERVICE FACILITIES 103
D. REVIEW OF THE MITIGATION LANDS 104
E. REVIEW OF THE BIOLOGICAL VIABILITY OF THE
RANCHEROS-SOUTHEAST II CONSERVED HABITAT PARCEL . 106
F. COOPERATION IN CREATING THE HMP CONSERVANCY . . . 107
1. The HMP Conservancy 107
2. DFG May Act as the Conservation Entity or
the Long Term Management Entity 107
G. COOPERATION WITH OTHER LANDOWNERS AND
JURISDICTIONS FOR CONSERVATION AND MANAGEMENT
PURPOSES 108
1. The San Marcos Creek Corridor 108
2. SDG&E 108
H. REVIEW AND APPROVAL OF DELEGATION OF FIXED
MANAGEMENT DUTIES AND RELATED FUNDING
OBLIGATIONS 109
XII. UNFORESEEN CIRCUMSTANCES 110
A. IN GENERAL 110
B. DEFINITIONS 110
C. FORMAL WRITTEN DETERMINATION REGARDING
UNFORESEEN CIRCUMSTANCES 112
D. RESPONSE AFTER A DETERMINATION THAT UNFORESEEN
CIRCUMSTANCES HAVE OCCURRED 114
E. TIMELY ACTION REGARDING UNFORESEEN
CIRCUMSTANCES 114
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F. DUTY TO LIMIT ADVERSE EFFECTS OF UNFORESEEN
CIRCUMSTANCES DETERMINATION AND REQUIRED
RESPONSE TO THE DETERMINATION ON THE PLAN
ACTIVITIES 115
1. _Duty to Avoid and Minimize Adverse Economic
Effects of Any Determination or Response . . 115
2. Limitations Governing Response to
Unforeseen Circumstances 117
G. EQUITABLE SUSPENSION OF OBLIGATIONS AND RIGHT TO
CANCEL 118
1. Equitable Suspension 118
2. Equitable Reduction in Obligations 118
3. Right to Cancel 119
H. ACQUISITION BY FWS AND DFG 120
XIII. AMENDMENTS, MINOR ADJUSTMENTS AND EMERGENCY ACTIONS . . 120
A. PROCEDURE FOR AMENDMENT 120
1. Request for Amendment 120
2. Processing the Amendment 121
B. PROCEDURE FOR MINOR ADJUSTMENTS AND APPROVALS . .121
1. Request for Minor Adjustment 122
2. Processing the Minor Adjustment 123
C. REQUIREMENT FOR EFFECTIVE AMENDMENT AND
ADJUSTMENT 124
D. EMERGENCY ACTIONS 125
XIV. BENEFITS CONFERRED UPON MAG PROPERTIES 125
A. THIRD PARTY BENEFICIARY STATUS 125
B. CONDITIONS PRECEDENT TO THIRD PARTY BENEFICIARY
STATUS 126
XV. ENFORCEMENT AND REMEDIES 127
A. IN GENERAL 127
B. REGARDING A SECTION 10(a) PERMIT, INCIDENTAL
TAKE STATEMENT OR SECTION 2081 PERMIT 127
1. Suspension and Revocation 127
2. Notice of Violation 128
3. Severability 130
4. Right to Cure and Reinstatement of a
Section 10(a) Permit, Incidental Take
Statement, or Section 2081 Permit 131
5. Emergency Suspension by FWS 133
6. Emergency Suspension by DFG 134
C. LIMITATIONS AND EXTENT OF ENFORCEMENT 134
1. No Further Mitigation ..... 134
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F:\WPDOC\11\2110\02322AGR.R08 VI11
2. Injunctive and Temporary Relief 135
3 . No Statutory Limitations 136
4. Enforceability by Fieldstone and the City . .136
5. Reliance 137
XVI. NO FURTHER MITIGATION 137
A. NO FURTHER MITIGATION 137
B. RIGHT TO CANCEL 138
XVII. MISCELLANEOUS PROVISIONS 139
A. INTERPRETATION OF THE HCP/OMSP 139
B. FURTHER ACTIONS 139
C. ENTIRE AGREEMENT 140
D. SUCCESSORS AND ASSIGNS 140
E. DETERMINATION OF INVALIDITY 141
F. INTERPRETATION OF AMBIGUITIES 142
G. CAPTIONS 142
H. INDEPENDENT INVESTIGATION 142
I . TIMING 143
J. NO PARTNERSHIP 143
K. ELECTED OFFICIALS NOT TO BENEFIT 143
L. STANDING TO SUE DFG 143
M. BENEFIT OF THE AGREEMENT 144
N. EMINENT DOMAIN 144
0. FORCE MAJEURE 144
P. NOTICES 146
Q. ATTORNEYS' FEES 148
R. EFFECTIVE DATE 148
S. DUPLICATE ORIGINALS 148
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F:\WPOOC\11\2110\02322AGR.R08 IX
IMPLEMENTATION AGREEMENT REGARDING
THE CITY OF CARLSBAD/FIELDSTONE/LA COSTA ASSOCIATES
HABITAT CONSERVATION PLAN/ON-GOING MULTI-SPECIES PLAN
This IMPLEMENTATION AGREEMENT REGARDING THE CITY OF
CARLSBAD/FIELDSTONE/LA COSTA ASSOCIATES HABITAT CONSERVATION PLAN
("Agreement") is made and entered into as of , 1994 ("the
Effective Date") by and between the City of Carlsbad, California
(the "City"), a municipal corporation, Fieldstone/La Costa
Associates Limited Partnership, a California limited partnership
("Fieldstone"), the United States Fish and Wildlife Service, an
agency of the Department of Interior of the United States
("FWS"), and the California Department of Fish and Game ("DFG"),
an agency of the State of California (the City, Fieldstone, FWS
and DFG are referred to collectively herein as the "Parties").
Based on the definitions, recitals of fact, findings and
determinations, the mutual obligations and covenants set forth
herein, and other consideration, the receipt and adequacy of
which are hereby acknowledged, the Parties do hereby agree as
follows.
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I. DEFINITIONS AND EXHIBITS (in alphabetical order)
A. DEFINITIONS
The following definitions are used in this Agreement.
1. The term "Agreement" means this document
entitled: "IMPLEMENTATION AGREEMENT REGARDING THE CITY OF
CARLSBAD/FIELDSTONE/LA COSTA ASSOCIATES HABITAT CONSERVATION
PLAN" entered into by and between the City, Fieldstone, FWS and
DFG.
2. The term "Birds of Concern" means those Species
of Concern that may be protected from time to time by the
provisions of the Migratory Bird Treaty Act, including, without
limitation, the Species of Concern listed in 50 C.F.R. § 10.13.
3. The term "Budget" means the budget for
Conservation and Management of the Conserved Habitat and
Mitigation Lands, excluding the costs and expenses of acquiring
the Mitigation Lands, which is described in Section 5.B. of the
HCP/OMSP and incorporated herein by this reference.
4. The term "CEQA" means the California
Environmental Quality Act (California Public Resources Code
§§ 21000 et seq.) and the guidelines and regulations promulgated
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in connection with that Act (including, without limitation,
14 California Code of Regulations §§ 15000 et seq.).
5. The term "CESA" means the California Endangered
Species Act (California Fish and Game Code §§ 2050 et seq.) and
the regulations promulgated in connection with that Act
(including, without limitation, 14 California Code of Regulations
§§ 40, 41, 243, 670.1 and 670.5).
6. The term "CESA Listed Species of Concern" means
those Species of Concern presently or in the future listed as
"endangered," "threatened" or as a "candidate" for such a listing
under CESA, or that are provided with protection under state law
that is substantially similar to that provided by a listing under
CESA.
7. The term "City" means the City of Carlsbad,
California, a municipal corporation.
8. The term "City Wildlife Constraints and
Requirements" means all existing and future City laws,
ordinances, rules, regulations, policies, constraints, conditions
of development approval, goals, purposes or other requirements
related to Conservation and Management, Mitigation, or protection
of Wildlife, including, but not limited to those set forth in:
(1) the City of Carlsbad Municipal Code, including the provisions
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of Title 20 and Title 21; (2) codified and uncodified ordinances
of the City, including Ordinance Number 9795; (3) zoning
ordinances adopted by the City; (4) land use designations adopted
by the City; (5) the City of Carlsbad General Plan; (6) policies
of the City of Carlsbad Planning Department and City of Carlsbad
Engineering Department; and (7) the HMP.
9. The terms "Conservation and Management" mean to
use and the use of all methods and procedures that are necessary
within Conserved Habitat and the Mitigation Lands to allow the
Species of Concern to function within habitat such that unlisted
Species of Concern do not become "endangered" or "threatened," as
defined in ESA and CESA, or such that there is no jeopardy to the
continued survival of CESA Listed Species of Concern and ESA
Listed Species of Concern. Such methods and procedures include,
but are not limited to implementation of Mitigation and
protective measures, activities associated with scientific
resources management and operation, such as research, census, law
enforcement, habitat acquisition and maintenance, propagation,
live trapping and transplantation, and may include regulated
Taking.
10. The term "Conservation Entity" means the entity
or entities qualified to receive a conservation easement under
California Civil Code § 815.3 and which accepts fee title or a
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conservation easement in and over a portion of the Conserved
Habitat or the Mitigation Lands.
11. The term "Conserved Habitat" means the
approximately 645.1 acres of various types of wildlife habitat
owned by Fieldstone within the Plan Area, consisting collectively
of the Rancheros-Southeast II Conserved Habitat Parcel and the
Northwest Conserved Habitat Parcels, all as shown on the Map.
12. The term "Conserved Habitat Maintenance Charge"
means an annual charge calculated as set forth in
Section V.E.3.b.(2) that, at Fieldstone's sole option, may be
imposed by the Homeowners Association on each owner of a
residential development unit within the Plan Area in accordance
with this Agreement.
13. The term "Construction/Build-Out Impact
Minimization and Mitigation Plan" means a plan prepared in
accordance with Section V.C.2. of this Agreement for
incorporation into future development construction plans for the
Project when they are prepared, which contains those measures set
forth in Section 5.C. of the HCP/OMSP.
14. The term "DFG" means the California Department of
Fish and Game, an agency of the State of California.
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15. The term "Effective Date" means the date on which
this Agreement was executed by the last of the Parties to execute
this Agreement—
16. The term "ESA" means the federal Endangered
Species Act (16 U.S.C. §§ 1531 et seq.) and the regulations
promulgated in connection with that Act (including, without
limitation, 50 C.F.R. Parts 13, 17, 402 and 424) .
17. The term "ESA Listed Species of Concern" means
those Species of Concern presently or in the future listed as
"endangered" or "threatened" under ESA, or that are provided with
protection under federal law that is substantially similar to
that provided by such a listing under ESA.
18. The term "Existing Rancho Santa Fe Road" means
the existing Rancho Santa Fe Road, so designated in Exhibit 2, in
its current alignment and all related right-of-way.
19. The term "Fieldstone" means Fieldstone/La Costa
Associates Limited Partnership, a California limited partnership,
and its assignees.
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20. The term "Fixed Management Duties" means those
Conservation and Management activities set forth in
Section V.C.2_of this Agreement.
21. The term "Fuel Management Zones" refers to zones
required by the City of Carlsbad Municipal Code and designed by
the Fire Marshall of the City to protect urban development from
catastrophic fire.
22. The term "Future Rancho Santa Fe Road" means the
road so designated in Exhibit 2 and shown on the Map, including,
without limitation, all grading and construction activities
connected with the future realigned and improved Rancho Santa Fe
Road, a portion of which is surrounded by but not included within
Conserved Habitat, that will be realigned to the proposed "Canyon
Alignment" and reconstructed, in one or more phases, as a six-
lane prime arterial, substantially as shown in Exhibit 2, State
Clearinghouse Number 90010850, certified June 2, 1992 (the
"EIR"), including any grading adjacent to the profile of the
proposed road necessary to construct the road.
23. The term "FWS" means the United States Fish and
Wildlife Service, an agency of the Department of Interior of the
United States.
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24. The term "Gnatcatcher" means the species known as
the California gnatcatcher (Polioptila californica), with all
subspecies (including Polioptila californica californica) and
eggs, at all life stages.
25. The terms "Habitat Conservation Plan/On-Going
Multi-Species Plan" or "HCP/OMSP" mean that document dated
., and entitled "HABITAT CONSERVATION PLAN/ON-GOING MULTI-
SPECIES PLAN FOR PLANT AND WILDLIFE SPECIES OF CONCERN IN THE
SOUTHERN QUADRANT OF THE CITY OF CARLSBAD, CALIFORNIA," and
approved by the Parties in connection with their execution of
this Agreement.
26. The term "HMP" means the City of Carlsbad Habitat
Management Plan, which is a Wildlife conservation plan that will
serve as a component of the City's General Plan Open Space and
Conservation Element, and that will comprise a subarea component
of the MHCP. The HMP, which was made publicly available in draft
form on July 2, 1993, addresses, in the context of the
subregional MHCP, the protection and management of multiple types
of habitat and listed and unlisted species within the subarea
formed by the jurisdictional boundaries of the City.
27. The term "HMP Conservancy" means a public entity
to be created or selected by the City in the near future pursuant
to the HMP Program to accept and hold title to the Conserved
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Habitat and the Mitigation Lands, to limit the use of such lands
to Conservation and Management purposes, and to implement over
the long term-the Conservation and Management measures, as set
forth in Sections V.A., V.D. and V.E, of this Agreement with
respect to such lands.
28. The term "HMP Program" means the City of Carlsbad
Habitat Management Plan Program sponsored by the City in
cooperation with the North County Wildlife Forum of San Diego
County, Fieldstone, FWS and DFG to develop the HMP.
29. The term "Homeowners Association" means any
homeowners association that Fieldstone, in its sole discretion,
may cause to be established in accordance with applicable laws
for purposes of holding, maintaining, operating or protecting
common areas or open space, or funding those activities within
any Subarea, which may become responsible for the Conservation
and Management of portions of Conserved Habitat and the
Mitigation Lands in accordance with the terms of Sections V.D.2.
and V.E. below.
30. The terms "Impact Area" and "Impact Areas" mean,
respectively, any portion or portions of the Plan Area excluded
from Conserved Habitat and shown on the Map and in Figures 16 and
18 of the HCP/OMSP, incorporated herein by this reference, which
are anticipated to be devoted to urban uses within the Project,
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such as, among others, residential, commercial, industrial,
public service, recreational, private open space and
infrastructure_uses, including, without limitation, the area
necessary to accommodate Future Rancho Santa Fe Road, and in
which Fieldstone, the City and MAG Properties are authorized in
strict accordance with this Agreement to Take Species of Concern
and modify habitat in connection with the Plan Activities.
31. The term "Incidental Take Statement" means the
written statement included in a biological opinion prepared by
FWS pursuant to Section 7 of ESA (16 U.S.C. § 1536 and the
regulations thereunder, including 50 C.F.R. Part 402), which
specifies the impacts, including incidental Take of species
listed as "endangered" or "threatened" under ESA and modification
of habitat, and sets forth the terms and conditions that must be
complied with in order for such Take to occur in compliance with
ESA, or substantially similar permission or authorization to Take
that is provided under federal law or regulation.
32. The term "JPA Program" means the program
sponsored by the San Dieguito River Valley Regional Open Space
Park Joint Powers Authority to plan, establish, and operate an
open space corridor and park system in the San Dieguito River
Valley to preserve open space, protect natural and cultural
resources, conserve habitat, create a scenic trail system, and
establish appropriate recreation areas within that river valley.
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33. The term "Long Term Management Entity" means an
entity qualified under applicable laws to accept and hold,
pursuant to Section V.A. or Section V.D., the fee interest in the
Conserved Habitat or Mitigation Lands, and to perform over the
long term the HCP/OMSP Conservation and Management measures as
set forth in Section V.E. of this Agreement with respect to
Conserved Habitat or the Mitigation Lands.
34. The term "MAG Parcel" means that certain
approximately 81 acres of land owned in fee by MAG Properties,
which lies entirely within the Impact Areas lying southeast of
Existing Rancho Santa Fe Road within the Southeast II Subarea, as
more fully described in the Map.
35. The term "MAG Properties" means MAG Properties, a
California general partnership, which owns the MAG Parcel, and
any successors and assigns with respect to the MAG Parcel.
36. The term "Management Advisory Committee" means an
ad hoc committee established pursuant to, and which performs the
functions set forth in Section V.E.3.a. of this Agreement.
37. The term "Map" means the map attached hereto as
Exhibit 1, which depicts, among other things, the Plan Area, the
Northwest Subarea, the Rancheros-Southeast II Subarea, the Impact
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Areas, the MAG Parcel, the Conserved Habitat, and the SDG&E
easements.
38. The term "MBTA Permit" means a permit issued
pursuant to the Migratory Bird Treaty Act and specifically issued
under 16 U.S.C. § 703, and 50 C.F.R. § 21.27, to allow the Take
of any Birds of Concern.
39. The term "MHCP" means the program sponsored by
the North County Wildlife Forum of San Diego County, in
cooperation with FWS and DFG and in accordance with the NCCP
Program, for research and development of a subregional Multiple
Habitat Conservation Plan for the conservation of multiple types
of habitat and sensitive species that occupy or use lands located
within northern San Diego County.
40. The term "Migratory Bird Treaty Act" means 16
U.S.C. § 703 et seq.. and the regulations promulgated in
connection therewith, including 50 C.F.R. § 10.13, 50 C.F.R.
Part 13, and 50 C.F.R. Parts 20-22, inclusive.
41. The term "Minor Adjustment" means an adjustment
or modification of Conservation and Management measures or
approvals of certain boundary modifications under the HCP/OMSP as
implemented by this Agreement that are not expected to result in
significant adverse impacts on the Species of Concern in excess
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of those contemplated by the HCP/OMSP, as more fully described
below in Section XIII.B.
42. The term "Mitigation" has the same meaning as set
forth in CEQA (14 Cal. Code of Regulations § 15370) and in NEPA
(40 C.F.R. § 1508.20), and includes the designation or
reservation of land as open space or the provision of money to
provide funding for Wildlife Conservation and Management,
protection or enhancement.
43. The term "Mitigation Lands" means the off-site
lands that Fieldstone must acquire outside of the Plan Area to
mitigate, in part, potential impacts of future Project
development on Species of Concern and the habitat within the
Northwest Subarea, as set forth in Section V.A.2. of this
Agreement.
44. The term "NCCP" means a natural community
conservation plan prepared pursuant to the NGCP Act.
45. The term "NCCP Act" means the Natural Community
Conservation Planning Act enacted by Chapter 765 of California
statutes of 1991 (A.B. 2172) (codified in part in California Fish
and Game Code §§ 2800 et seq.).
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46. The term "NCCP Program" means the pilot program
sponsored by the California Resources Agency and DFG under the
NCCP Act in cooperation with FWS for the conservation of coastal
sage scrub habitat, the Gnatcatcher, and other sensitive species
that inhabit or use coastal sage scrub habitat.
47. The term "NEPA" means the National Environmental
Policy Act of 1969 (42 U.S.C. §§ 4321 e_t seq.) and the
regulations promulgated in connection with that Act (including,
without limitation, 40 C.F.R. §§ 1500 et seq.).
48. The term "Northwest Conserved Habitat Parcels"
means those portions of Conserved Habitat that Fieldstone owns in
fee, located within the Northwest Subarea, consisting of
approximately 123.69 acres of habitat, described in Section 5 of
the HCP/OMSP and shown on the Map, as more fully described by the
metes and bounds legal description set forth in Exhibit 7.
49. The term "Northwest Subarea" means that portion
of the Plan Area consisting of approximately 662 acres of land,
as shown on the Map and described in Section 2 of the HCP/OMSP.
50. The term "Ongoing Management Duties" means those
Conservation and Management activities set forth in
Section V.C.I, of this Agreement.
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51. The terms "Parties" or "Party" mean,
respectively, the entities and agencies, or one of the entities
or agencies, that have executed this Agreement.
52. The terms "Permittee" or "Permittees" mean the
entity or entities entitled to the benefit of any authorization
of Take within the Impact Areas pursuant to a Section 10(a)
Permit, Incidental Take Statement, or Section 2081 Permit issued
pursuant to this Agreement, and may include one or all of the
City, Fieldstone and MAG Properties, as set forth in this
Agreement.
53. The term "Plan Activities" means those activities
of every kind and nature described in, contemplated by or
provided for in the HCP/OMSP as implemented by this Agreement,
including, without limitation, the development of the Project
(and the conveyance or dedication of Conserved Habitat and the
Mitigation Lands in connection therewith), the Conservation and
Management of Conserved Habitat and the Mitigation Lands,
performance of the Ongoing Management Duties and the Fixed
Management Duties, performance of measures set forth in
Construction/Build-Out Impact Minimization and Mitigation Plans,
activities connected with any abandonment and revegetation of
Existing Rancho Santa Fe Road and the performance of all other
measures or activities contemplated by or necessary to effect the
purposes of the HCP/OMSP or this Agreement.
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54. The term "Plan Area" means: the approximately
1,844.4 acres of land owned by Fieldstone,- the MAG Parcel; and
the land within_ the right-of-way for Future Rancho Santa Fe Road
located north of, but not within the Rancheros-Southeast II
Subarea,- all within the southern quadrant of the City and as more
fully described in Section 2 of the HCP/OMSP and designated as
such on the Map.
55. The term "Plan Operator" means Fieldstone or its
successors or delegatees, which entity or entities manage and
operate Conserved Habitat or the Mitigation Lands as set forth in
Sections V.C., V.D., and V.E. of this Agreement.
56. The term "Project" means the anticipated phased
development of residential, commercial, and infrastructure
improvements within the Impact Areas of the Plan Area, consisting
of phased development within the two Subareas (the Northwest
Subarea, the Rancheros-Southeast II Subarea) and construction of
Future Rancho Santa Fe Road, as contemplated in Sections 1,
Figures 15, 16, and 18 of the HCP/OMSP, including, without
limitation: (1) grading and landscaping for, and construction,
operation and maintenance of residential, commercial and public
service buildings, structures, and facilities; (2) grading and
landscaping for, and construction, operation and maintenance of
infrastructure roads and other transportation facilities,
including, without limitation, Future Rancho Santa Fe Road, and
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ways, dams, channels, bridges, utilities, water and sewer
systems, communication lines and facilities, pipelines,
recreational facilities and trails,- (3) operation and maintenance
of open space and recreational open space,- and (4) all other
development and construction related activities contemplated by
the specific plans and development permit applications for the
Project.
57. The term "Special Rule" means Section 17, 41(b)
of the Code of Federal Regulations which provides that take of
the Gnatcatcher is prohibited unless such take is permitted in
accordance with the provisions of the rule.
58. The term "Public Benefit Agreement" means an
agreement to be entered into by and between Fieldstone and the
City pursuant to California Government Code Sections 65864, 65865
and 65865.4, as a condition precedent to the operation and effect
of the covenants and obligations of Fieldstone contained in this
Agreement as set forth in Section IV.A. of this Agreement.
59. The term "Rancheros-Southeast II Conserved
Habitat Parcel" means that portion of Conserved Habitat that
Fieldstone owns in fee, located within the Rancheros-Southeast II
Subarea, consisting of approximately 521.41 acres of habitat,
described in Section 5 of the HCP/OMSP and shown on the Map, and
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as more fully described by the metes and bounds legal description
set forth in Exhibit 8.
60. The term "Rancheros-Southeast II Subarea" means
that portion of the Plan Area consisting of approximately 1,278.2
acres of land, as shown on the Map and described in Section 1 of
the HCP/OMSP.
61. The term "Rancho Santa Fe Road Realignment and
Mass Grading Project" means the original project to realign the
Existing Rancho Santa Fe Road and to mass grade areas adjacent to
the road for purposes of commercial or residential development,
as currently described in the EIR without modification for
consistency with the HCP/OMSP or financial constraints.
62. The term "SDG&E" means the San Diego Gas and
Electric Company entity that owns the utility easements
designated as such on the Map.
63. The term "Section 4(d)" means Section 4(d) of
ESA, 16 U.S.C. § 1533(d), and the rules regulations, or
guidelines proposed or promulgated in connection with that
statutory provision, including, without limitation, the Special
Rule.
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64. The term "Section 10(a)" means Section 10(a) of
ESA, 16 U.S.C. § 1539, and the rules, regulations, or guidelines
promulgated in_ connection with that statutory provision,
including, without limitation 50 C.F.R. § 17.22.
65. The term "Section 10(a) Permit" means: (1) a
permit issued under Section 10(a)(1)(B) of ESA (16 U.S.C.
§ 1539(a)(l)(B)) to permit the incidental Take of ESA Listed
Species of Concern,- or (2) permission or authorization under any
other federal law or regulation that permits the Take of ESA
Listed Species of Concern.
66. The term "Section 2081" means California Fish and
Game Code § 2081, and any rules, regulations, or guidelines
promulgated in connection with that statutory provision.
67. The term "Section 2081 Permit" means: (1) a
management permit or memorandum of understanding issued by DFG
under Section 2081 and consistent with CESA to authorize
management Take of a CESA Listed Species of Concern, which is
substantially similar to the permit set forth as Exhibit 5; or
(2) permission or authorization under any other state law or
regulation, including, without limitation Section 2835, that
permits the management Take of a CESA Listed Species of Concern
or a species that is provided with protection substantially
similar to that provided under CESA.
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68. The term "Section 2835" means California Fish and
Game Code § 2835, and any rules, regulations or guidelines
promulgated in_connection with that statutory provision.
69. The term "Significant Adverse Change" has the
meaning set forth in Section XII.B.2. below.
70. The term "Species of Concern" means those species
set forth in Exhibit 3.
71. The terms "Subarea" or "Subareas" mean,
respectively, one or both of the Northwest Subarea and the
Rancheros-Southeast II Subarea.
72. The terms "Take" and "Taking" mean the same as
set forth in ESA on the Effective Date.
73. The term "Term" means that period during which,
regardless of the "stated term" set forth in Section III.A., this
Agreement is effective, which period is determined as set forth
in Article III.
74. The term "Unforeseen" has the meaning set forth
in Section XII.B.I. below.
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75. The term "Unforeseen Circumstances" has the
meaning set forth in Section XII.B. below.
76. The term "Wildlife" means all wild animals,
birds, plants, fish, amphibians, reptiles and related habitat and
ecological communities upon which such wildlife depends.
77. The term "Wildlife Agency" means each or either
of FWS or DFG, as the context requires.
B. EXHIBITS
Attached to this Agreement are the following Exhibits,
which are incorporated herein by this reference:
Exhibit 1: The Map.
Exhibit 2: Map of Existing and Future Rancho Santa
Fe Road.
Exhibit 3: List of Species of Concern.
Exhibit 4: Form of Conservation Easement Deed.
Exhibit 5: Form of Section 2081 Permit.
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Exhibit 6: Form of Certificate of Public Purpose.
Exhibit 7: Legal Description of the Northwest
Conserved Habitat Parcels.
Exhibit 8: Legal Description of the Rancheros-
Southeast II Conserved Habitat Parcel.
Exhibit 9: Condition of Title.
II. RECITALS
This Agreement is based on the following facts:
A. PLAN AREA OWNERSHIP AND THE PROJECT
Fieldstone owns a fee interest, subject to certain matters
of record, in approximately 1,844.4 acres of land, commonly
referred to as the Villages of La Costa, located within the City
as described in the HCP/OMSP. This land, which includes the
Impact Areas and Conserved Habitat, in addition to the MAG
Parcel, and the land within the Rancheros-Southeast II Subarea
that is outside of Fieldstone's ownership but within the right-
of-way for Future Rancho Santa Fe Road, comprise the Plan Area.
Fieldstone desires to develop the Impact Areas of the Plan Area
for various residential, commercial and private open space uses
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in phases that correspond with the Subareas. The City and
Fieldstone desire to construct and install all necessary
transportation-facilities, roads, utilities, and other public
facilities and infrastructure required to support such
development, including Future Rancho Santa Fe Road. Because the
Plan Area consists of sensitive Wildlife as described in the
HCP/OMSP, Fieldstone and the City prepared the HCP/OMSP in
cooperation with FWS and DFG.
B. SPECIES ADDRESSED BY THIS AGREEMENT AND THEIR
REGULATION
The Species of Concern addressed by this Agreement are
species that use, occupy or are associated with the Plan Area and
may include, but are not limited to species that are: (1) ESA
Listed Species of Concern or CESA Listed Species of Concern,-
(2) proposed for protection,- (3) candidates for protection;
(4) of special concern in California,- (5) rare or declining
regionally; or (6) of local concern, as set forth in the
HCP/OMSP. Certain Species of Concern, for example, but without
limitation, the Gnatcatcher, are currently ESA Listed Species of
Concern, and one or more of the unlisted Species of Concern are
proposed to be or may become in the future ESA Listed Species of
Concern. Similarly, certain Species of Concern are currently
CESA Listed Species of Concern or are proposed to be or may
become in the future CESA Listed Species of Concern.
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C. THE HABITAT CONSERVATION PLAN
Pursuant _to the provisions of ESA and CESA, including
Section 10(a) and Section 2081, and consistent with the
provisions of the NCCP Act, Fieldstone has prepared the HCP/OMSP
with the assistance of and in cooperation with FWS, DFG, the City
and other individuals, agencies and organizations. The HCP/OMSP
provides for the Conservation and Management of Species of
Concern and Plan Area habitat, as well as incidental and
management Take of Species of Concern, all in accordance with
Section 10(a) and Section 2081, and consistent with the Proposed
Rule and the NCCP Act. The HCP/OMSP, which FWS, DFG and its
consultants have independently reviewed, is the product of
thorough and lengthy studies and surveys and represents
coordination of private interests with interests of the City and
conservation interests in cooperation with FWS and DFG.
D. AUTHORITY OF FWS
FWS has participated in the preparation of the HCP/OMSP and
enters into this Agreement pursuant to ESA and the United States
Fish and Wildlife Coordination Act (16 U.S.C. §§ 661-666c). In
connection with the enactment of Section 10(a), the United States
Congress expressed its intent that FWS cooperate in the
development of conservation plans that protect both listed and
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unlisted species over the long term while providing assurances
regarding the limits of any Mitigation required, stating that:
[T]he Secretary [of the Interior] . . . may . . .
approve conservation plans which provide long-term
commitments regarding the conservation of listed as
well as unlisted species and long-term assurances to
the proponent of the conservation plan that the terms
of the plan will be adhered to and that further
mitigation requirements will only be imposed in
accordance with the terms of the plan. In the event
that an unlisted species addressed in an approved
conservation plan is subsequently listed pursuant to
the Act, no further mitigation requirements should be
imposed if the conservation plan addressed the
conservation of the species and its habitat as if the
species were listed pursuant to the Act.
It is also recognized that circumstances and
information may change over time and that the original
plan might need to be revised. To address this
situation the Committee expects that any plan approved
for a long-term permit will contain a procedure by
which the parties will deal with unforeseen
circumstances.
[H.R. Rep. No. 97-835, 97th Cong., 2d Sess. 30-31 (1982)].
E. AUTHORITY OF DFG
DFG has participated in the preparation of the HCP/OMSP and
enters into this Agreement pursuant to CESA, which provides that
the Department has jurisdiction over the conservation, protection
and management of fish, wildlife, native plants and habitat
necessary for biologically sustainable populations of those
species. See, e.g.. California Fish and Game Code §§ 1801, 1802,
2000, 2052. DFG is charged not to apprqve projects as proposed
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that would jeopardize the continued existence of any "endangered"
or "threatened" species or that would result in the destruction
or adverse modification of habitat essential to the continued
existence of those species, if there are reasonable and prudent
alternatives available consistent with conserving the species or
its habitat that would prevent jeopardy. California Fish and
Game Code § 2053. However, in the event specific economic,
social or other conditions make infeasible such alternatives,
individual projects may be approved if appropriate "mitigation"
and enhancement measures are provided. California Fish and Game
Code § 2054. Further, DFG may authorize the Take of CESA Listed
Species of Concern for scientific, educational or management
purposes under: (1) CESA and Section 2081; (2) the provisions of
that certain "COOPERATIVE AGREEMENT BETWEEN THE CALIFORNIA
DEPARTMENT OF FISH AND GAME AND THE U.S. FISH AND WILDLIFE
SERVICE," dated as of August 28, 1991; and (3) California Fish
and Game Code Sections 2835 and 3007.
F. RELATIONSHIP TO THE NCCP PROGRAM AND THE PROPOSED RULE
The State of California enacted the NCCP Act effective
January 1, 1992, for the conservation of natural communities.
Pursuant to the NCCP Act, the state promulgated the NCCP Program,
which is a pilot project under the NCCP Act that provides for the
preparation of NCCPs for coastal sage scrub habitat and the
species that inhabit and use coastal sage scrub habitat,
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including the Gnatcatcher. The California Resources Agency, DFG,
and FWS have entered into that certain "MEMORANDUM OF
UNDERSTANDING REGARDING COASTAL SAGE SCRUB NATURAL COMMUNITY
CONSERVATION PLANNING IN SOUTHERN CALIFORNIA, '" executed
December 4, 1991, providing for a policy of coordination and
cooperation between FWS and DFG in preparing plans for the
conservation of coastal sage scrub natural communities.
FWS has published Special Rule, which provides that "take"
of the Gnatcatcher under ESA will be permitted: (1) in accordance
with Section 10(a) or Section 7 (16 U.S.C. § 1536) of ESA; (2) if
the take results from activities conducted in accordance with a
natural community conservation plan for coastal sage scrub
habitat, provided that: (a) the plan has been prepared, approved
and implemented pursuant to the NCCP Act; and (b) FWS has issued
written concurrence that such plan meets the standards set forth
in 50 C.F.R. § 17.32(b)(2); or (3) if the take results from
activities conducted in accordance with guidelines promulgated
pursuant to the NCCP Act and concurred in by FWS. Section 2835
of the NCCP Act provides that DFG may permit the taking, as
provided elsewhere in the California Fish and Game Code, of any
identified species whose "conservation" and "management" is
provided for in a DFG approved natural community conservation
plan.
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The HCP/OMSP was initiated prior to the time that the NCCP
Program became effective (January 1, 1992), and is recognized as
exempt from the_ NCCP Program pursuant to Section 3 of the NCCP
Act because it was prepared pursuant to a pre-existing agreement
for the preparation of a habitat conservation plan or NCCP
approved by the Director of DFG prior to enactment of the NCCP
Act. Despite this exemption, however, in various agreements
related to the preparation of the HCP/OMSP and HMP among the
Parties and among certain Parties and other state agencies
responsible for implementation of the NCCP Program, including the
NCCP Program enrollment agreements between the City and the
Resources Agency of the State of California, Fieldstone, the
City, DFG and FWS state their intent that the HCP/OMSP shall be
coordinated and consistent with the NCCP Program such that the
objectives of the NCCP Program will be substantially achieved and
preparation of a regional NCCP will not be precluded. Therefore,
while the HCP/OMSP independently meets the requirements of CESA
and ESA, the City and Fieldstone also have cooperated with the
preparers of the HMP and the MHCP, which are subarea and
subregional plans prepared under the NCCP Act, to ensure
consistency of the HCP/OMSP with those plans, the NCCP Act and
the Proposed Rule.
Specifically, the HCP/OMSP is formally recognized as an
initial component of the HMP, which in turn is a formally •
designated subarea component of the subregional MHCP. The
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HCP/OMSP, HMP and MHCP are all multispecies and multiple habitat
conservation plans prepared in the context of ESA, CESA and the
NCCP Program to achieve the goals and objectives of those
legislative schemes. Given the consistency and relationship
between the HCP/OMSP, HMP and MHCP, approval of the HCP/OMSP
complements the preparation of a regional NCCP that will
encompass the Plan Area in accordance with the objectives of the
NCCP Program.
G. AUTHORITY OF THE CITY
The City is authorized to enter into this Agreement by
statutes and common law authorizing the City to regulate the use
of land, accept or approve open space and conservation easements,
create assessment districts, enact conservation and open space
elements for general plans, preserve natural resources, including
Wildlife, and exercise general planning and zoning powers. See,
e.g. . California Government Code §§ 50060.5, 51205, 51070, 50575,
65302, 65560, 65864, California Civil Code § 815.3, California
Streets and Highways Code §§ 22500-22679 and the California
Constitution, including, without limitation, Article 11. The
Parties recognize that the City is both a Permittee with respect
to approval of Public Improvements under Section 10(a) and
Section 2081, and a local jurisdiction with authority to regulate
the use of lands within its jurisdiction, including the Plan
Area.
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H. LEGAL REQUIREMENTS AND ASSURANCES
1. _Requirements and Purposes of the HCP/OMSP
In cooperation with FWS and DFG, Fieldstone and the
City prepared the HCP/OMSP to fulfill the requirements of: ESA,
including, without limitation, Section 10(a); CESA, including,
without limitation, Section 2081; the City Wildlife Constraints
and Requirements, including, without limitation, the HMP; CEQA;
NEPA; the Wildlife impact avoidance, minimization and mitigation
requirements of Section 404 of the Clean Water Act (33 U.S.C.
§ 1344) / and the Wildlife impact avoidance, minimization and
mitigation requirements of any required Streambed Alteration
Agreement (California Fish and Game Code § 1603). It has also
been prepared to fulfill the goals and purposes of: che Fish and
Wildlife Coordination Act, the NCCP Act, the NCCP Program, and
the Special Rule.
The HCP/OMSP as implemented by this Agreement is
intended to assure that: (1) any Take of the Species of Concern
that may result from the Plan Activities will be incidental to
otherwise lawful activities; (2) the impacts of such Take will be
minimized and mitigated to the maximum extent practicable/
(3) adequate funding for the HCP/OMSP will be provided; (4) such
Take will not appreciably reduce the likelihood of the survival
and recovery of the Species of Concern in the wild or jeopardize
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the continued existence of the Species of Concern; (5) the goals
of the NCCP Program are advanced and Plan Activities will not
jeopardize preparation of subarea, subregional and regional
NCCPs; (6) the adverse impacts of the Plan Activities on Species
of Concern and habitat will be insignificant or all feasible
changes and alterations will be incorporated into the Project
through implementation of the HCP/OMSP in accordance with this
Agreement such that the potential significant adverse impacts of
the Plan Activities on Species of Concern and habitat will be
minimized and mitigated to a level of insignificance; and (7) an
adequate management reporting and monitoring program is pursued
to assure implementation of the Conservation and Management
measures set forth herein.
2. Assurances from Fieldstone and the City
Through this Agreement and based upon the HCP/OMSP,
Fieldstone and the City desire to provide and FWS and DFG desire
to receive assurances that Fieldstone and the City will implement
the operative terms of the HCP/OMSP and coordinate implementation
of the HCP/OMSP with the HMP, the MHCP and the NCCP Program.
3. Assurances from FWS
Through this Agreement and based upon the HCP/OMSP,
FWS desires to provide and Fieldstone and the City desire to
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receive assurances that, among other things: (1) the Conservation
and Management measures contained in the HCP/OMSP as implemented
by this Agreement provide for Species of Concern and habitat as
required by ESA, including, without limitation, Section 10(a) and
Section 4(d); (2) the HCP/OMSP is consistent with the goals and
purposes of the NCCP Act and, as an initial component of the HMP,
is consistent with the implementation of NCCP Program and the
Proposed Rule; (3) the adverse impacts of the Plan Activities on
Species of Concern and habitat will be insignificant or all
feasible changes and alterations will be incorporated into the
Project through implementation of the HCP/OMSP in accordance with
this Agreement such that the potential significant adverse
impacts of the Plan Activities on Species of 'Concern and habitat
will be minimized and mitigated to a level of insignificance;
(4) FWS, upon application by Fieldstone or the City and any
appropriate public review, shall expeditiously issue a
Section 10(a) Permit or Incidental Take Statement (as
appropriate) allowing Fieldstone/ the City, and MAG Properties to
incidentally Take any ESA Listed Species of Concern in accordance
with this Agreement and, specifically, subject to the provisions
for Unforeseen Circumstances set forth in Article XII., such that
the Plan Activities may proceed without interruption; (5) FWS,
upon application by Fieldstone or the City and any appropriate
public review, shall expeditiously issue a MBTA Permit as
appropriate allowing Fieldstone, the City, and MAG Properties to
Take any Birds of Concern, in accordance with this Agreement,
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such that the Plan Activities may proceed without interruption,-
and (6) subject to the provisions for Unforeseen Circumstances
set forth in Article XII., FWS shall not impose, recommend or
require any further Mitigation, enhancement, conservation,
protection or compensation, other than that set forth in the
HCP/OMSP as implemented by this Agreement, with respect to
impacts of the Plan Activities on Species of Concern and habitat.
4. Assurances from DFG
Through this Agreement and based upon the HCP/OMSP,
DFG desires to provide and Fieldstone and the City desire to
receive assurances that, among other things: (1) the Conservation
and Management measures contained in the HCP/OMSP as implemented
by this Agreement provide for Species of Concern and habitat as
required by CESA, including, without limitation, Sections 2081
and 2053; (2) the HCP/OMSP is consistent with the goals and
purposes of the NCCP Act and, as an initial component of the HMP,
is consistent with the implementation of NCCP Program and the
Proposed Rule/ (3) the adverse impacts of the Plan Activities on
Species of Concern and habitat will be insignificant or all
feasible changes and alterations will be incorporated into the
Project through implementation of the HCP/OMSP in accordance with
this Agreement such that the potential significant adverse
impacts of the Plan Activities on Species of Concern and habitat
will be minimized and mitigated to a level of insignificance; (4)
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DFG, upon application by Fieldstone or the City and any
appropriate public review, shall expeditiously issue a
Section 2081 Permit allowing Fieldstone, the City, and MAG
Properties to Take any CESA Listed Species of Concern in
accordance with this Agreement and, specifically, subject to the
provisions for Unforeseen Circumstances set forth in
Article XII., such that the Plan Activities may proceed without
interruption; and (5) subject to the provisions for Unforeseen
Circumstances set forth in Article XII., DFG shall not impose,
recommend or require any further Mitigation, enhancement,
conservation, protection or compensation, other than that set
forth in the HCP/OMSP as implemented by this Agreement, with
respect to impacts of the Plan Activities on Species of Concern
and habitat.
5. Assurances from the City
Through this Agreement and based upon the HCP/OMSP,
the City desires to provide and Fieldstone desires to receive
assurances that, among other things: (1) the Conservation and
Management measures contained in the HCP/OMSP and implemented by
this Agreement provide for Species of Concern and habitat as
required by all City Wildlife Constraints and Requirements,-
(2) the adverse impacts of the Plan Activities on Species of
Concern and habitat will be insignificant or all feasible changes
and alterations will be incorporated into the Project through
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implementation of the HCP/OMSP in accordance with this Agreement
such that the potential significant adverse impacts of the Plan
Activities on .Species of Concern and habitat will be minimized
and mitigated to a level of insignificance; (3) the HCP/OMSP as
implemented by this Agreement provides an adequate management
reporting and monitoring program for the Conservation and
Management measures set forth herein; (4) the City shall not
impose, recommend or require any further Mitigation, enhancement,
conservation, protection or compensation, other than that set
forth in the HCP/OMSP as implemented by this Agreement, with
respect to impacts of the Plan Activities on Species of Concern
and habitat; and (5) the City will enter into the Public Benefit
Agreement to ensure implementation of the HCP/OMSP remains
feasible.
I. RELATIONSHIP TO OTHER PLANNING AND REGULATORY PROGRAMS
The HCP/OMSP and this Agreement focus on Conservation and
Management measures that address the Species of Concern that
occupy, use or are associated with the habitat within the Plan
Area. The Conservation and Management measures implemented by
this Agreement directly or indirectly benefit focus Species of
Concern in a manner that assures that Take in connection with the
Plan Activities will not jeopardize the continued survival of
such Species of Concern in the wild.
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The HCP/OMSP and this Agreement also are consistent with
and complement other applicable conservation planning and
regulatory programs and efforts addressing Wildlife in the City,
the subregion and in the region. Further, the Parties intend
that the provisions of other applicable Wildlife conservation
planning and regulatory programs and efforts will supplement and
augment the Conservation and Management measures set forth in the
HCP/OMSP and implemented by this Agreement for the Species of
Concern and will protect other Wildlife in northern San Diego
County. In the context of other Wildlife conservation planning
and regulatory efforts, Take in connection with the Plan
Activities will not jeopardize the continued survival of those
Species of Concern addressed by the HCP/OMSP.
1. The City Wildlife Constraints and Requirements.
Including the HMP Program
In November 1990, in response to petitions under ESA
and CESA to list the Gnatcatcher for protection, the City
initiated the HMP Program and Fieldstone and the City entered
into consultation with FWS and DFG regarding potential impacts of
the then proposed Rancho Santa Fe Road Realignment and Mass
Grading Project. As of July 30, 1991, the City, Fieldstone and
FWS entered into that certain "MEMORANDUM OF AGREEMENT REGARDING
CITY OF CARLSBAD COASTAL SAGE SCRUB HABITAT, " and, as of
August 1, 1991 the City, Fieldstone and DFG entered into that
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certain "MEMORANDUM OF AGREEMENT REGARDING CITY OF CARLSBAD
COASTAL SAGE SCRUB HABITAT, " which memoranda provided for the
preparation of the HCP/OMSP.
Originally, the HCP/OMSP was intended primarily to
mitigate Wildlife impacts of the then proposed Rancho Santa Fe
Road Realignment and Mass Grading Project. However, due to-. (1)
the number of Species of Concern occupying, using or associated
with the Plan Area; (2) the biological need for a large Wildlife
corridor bisecting the most economically and biologically
valuable portions of the Rancheros-Southeast II Subarea; and (3)
the progress of the HMP Program, the HCP/OMSP evolved into a
broader plan to address conservation and protection of Species of
Concern and habitat, which would, in turn, serve as an
independent conservation plan that fulfills the requirements of
ESA and CESA, and also as a critical initial component of the
HMP. The HCP/OMSP as implemented by this Agreement is consistent
with the goals and policies of the City Wildlife Constraints and
Requirements and, as an initial component of the HMP, is
consistent with subarea biological information.
2. The MHCP
Since 1992, the members of the North County Wildlife
Forum (including the County of San Diego, the City, seven other
cities, the County of San Diego Water Authority, and the San
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Diego Association of Governments) have cooperated with FWS and
DFG, among other public agencies, to develop an inter-
jurisdictional Wildlife and biological data base, resource
inventory and conservation plan. Because the HCP/OMSP is
consistent with and an initial component of the HMP, and because
the HMP is formally designated as a subarea component of the
MHCP, the HCP/OMSP is consistent with the subregional biological
information and conservation planning that comprise the MHCP.
The preparation of the HCP/OMSP has contributed to the MHCP data
base, resource inventory and conservation strategy.
3. The JPA Program
In 1989, the County of San Diego and six cities formed
a joint powers agency to plan, establish and operate an open
space greenbelt and park system in the San Dieguito River Valley
with the goal of preserving and protecting natural resources.
The HCP/OMSP provides for the conservation of Conserved Habitat
and the purchase of the Mitigation Lands in a configuration
intended to further connect lands located within the City to
lands located within the San Dieguito River Valley, which is the
geographic focus of the JPA Program.
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Ill. TERM OF TWg AGPg'gM1ICTrr
A. STATED TERM
This Agreement shall become effective as of the Effective
Date and shall remain in full force and effect during the period
of time commencing on the Effective Date and terminating thirty
(30) years from the Effective Date (the "stated term"), subject
to extension or earlier termination pursuant to the provisions of
this Agreement.
B. OTHER PERMITS. AGREEMENTS AND APPROVALS
The Parties acknowledge that prior to Project development,
the City and Fieldstone may be required to obtain permits for
impacts to wetlands in connection with the Plan Activities. For
example, but without limitation, Fieldstone or the City may be
required to obtain a permit for impacts to wetlands in connection
with construction of a Future Rancho Santa Fe Road bridge across
the San Marcos Creek. Therefore, notwithstanding the stated term
of this Agreement, in the event that either: (1) The United
States Army Corps of Engineers fails to issue to Fieldstone or
the City, as required, any necessary permits pursuant to
Section 404 of the Clean Water Act (33 U.S.C. § 1344) authorizing
the impacts to waters of the United States identified in
connection with the Plan Activities; or (2) DFG fails to enter
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into any necessary streambed alteration agreement pursuant to
California Fish and Game Code Section 1603 with Fieldstone or the
City, as required, authorizing the impacts to wetlands in
connection with the Plan Activities, then Fieldstone or the City,
at its option, shall have the right, upon compliance with the
procedures set forth in Section III.I. below, to terminate this
Agreement, or to withdraw from the obligations of this Agreement
related to the Subarea that is affected by the failure to issue
such Section 404 permit or the failure to enter into such
streambed alteration agreement. In the event that Fieldstone or
the City terminates this Agreement, the Parties shall have no
further rights or obligations under this Agreement, except the
rights or obligations that accrued prior to the termination. In
the event that Fieldstone or the City withdraws from the
obligations of this Agreement related to a Subarea affected by a
failure to issue such Section 404 permit or failure to enter into
such streambed alteration agreement, then the Parties shall have
no further rights or obligations under this Agreement with
respect to such Subarea, except the rights or obligations that
accrued prior to the withdrawal; however, all other rights and
obligations of this Agreement related to unaffected Subareas
shall remain in full force and effect.
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C. EFFECT OF A SECTION 10(a) PERMIT. INCIDENTAL TAKE
STATEMENT OR SECTION 2081 PERMIT
Notwithstanding the stated term of this Agreement, the
Parties anticipate that during the Term, one or more of the
Species of Concern may be listed for protection under ESA. In
the event that a Section 10(a) Permit, Incidental Take Statement,
or Section 2081 Permit is issued and the term of any such permit
or statement extends beyond the stated term of this Agreement,
then, unless otherwise terminated in accordance with other
provisions of this Agreement, this Agreement shall not terminate
at the conclusion of the stated term, but shall continue and
thereafter terminate upon the latest date of termination of any
such Section 10(a) Permit, Incidental Take Statement, or
Section 2081 Permit.
D. PERMANENCE OF CONSERVED HABITAT
Notwithstanding the stated term or Term of this Agreement,
the Parties agree and recognize that once Take occurs with
respect to any Species of Concern for which a Section 10(a)
Permit, Incidental Take Statement or Section 2081 Permit has been
issued as herein contemplated, the Take will be permanent.
Therefore the Parties intend that in the event that: (1) a
Section 10(a) Permit or an Incidental Take Statement is issued by
FWS authorizing Take of any ESA Listed Species of Concern and
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Take occurs; or (2) a Section 2081 Permit is issued by DFG
authorizing Take of any CESA Listed Species of Concern and Take
occurs, then the Conserved Habitat dedicated in accordance this
Agreement and in connection with Take and the issuance of such
Section 10(a) Permit, Incidental Take Statement, or Section 2081
Permit shall likewise, to the extent permitted by law and except
as otherwise provided herein, be dedicated in perpetuity to
Wildlife Conservation and Management.
E. ABANDONMENT OF DEVELOPMENT
In the event that Fieldstone is unable to develop or to
convey and assign for development in accordance with this
Agreement any portion of the Impact Areas for any reason, then,
at its option, Fieldstone shall have the right, upon compliance
with the procedures set forth in Section III. I. below, to
terminate this Agreement or to withdraw from the obligations of
this Agreement related to the Subarea in which the undevelopable
Impact Area is located. In the event that Fieldstone terminates
this Agreement, the Parties shall have no further rights or
obligations under this Agreement, except the rights or
obligations that accrued prior to the termination. In the event
that Fieldstone withdraws from the obligations of this Agreement
related to a Subarea in which an undevelopable Impact Area is
located, the Parties shall have no further rights or obligations
under this Agreement with respect to such Subarea, except the
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rights or obligations that accrued prior to the withdrawal;
however, all other rights and obligations of this Agreement
related to Subareas containing unaffected Impact Areas shall
remain in full force and effect.
F. DETERMINATION OF INVALIDITY OR IMPOSITION OF FURTHER
CONSERVATION OR MITIGATION MEASURES
In the event that: (1) any determination is made that any
provision of this Agreement, or the HCP/OMSP is void, invalid or
otherwise unenforceable; or (2) FWS, DFG or the City imposes or
requires any further Mitigation, compensation, enhancement,
protection or conservation, or regulations or restrictions for
the protection or Conservation and Management of Wildlife, then
Fieldstone shall have the right, upon compliance with the
procedures set forth in Section III.I. below, to terminate this
Agreement in accordance with Section XVII.E. and Article XVI.,
respectively.
G. MODIFICATION OF MELROSE AVENUE
The City shall use its best efforts to redesign and
reclassify Melrose Avenue, which is located within the
Southeast II Subarea as depicted on the Map, from a prime
arterial to a major arterial as required by Section VII.D. below,
In the event that Melrose Avenue is not so redesigned or
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reclassifled, Fieldstone shall have the- right, upon compliance
with the procedures set forth in Section III. I. below, to
terminate this_Agreement or to withdraw from the obligations of
this Agreement related to any Subarea affected by the failure to
redesign and reclassify Melrose Avenue. In the event that
Fieldstone terminates this Agreement, the Parties shall have no
further rights or obligations under this Agreement, except the
rights or obligations that accrued prior to the termination. In
the event that Fieldstone withdraws from the obligations of this
Agreement related to certain Subareas affected by the failure to
redesign and reclassify Melrose Avenue, the Parties shall have no
further rights or obligations under this Agreement with respect
to such Subareas, except the rights or obligations that accrued
prior to the withdrawal; however, all other rights and
obligations of this Agreement related to unaffected Subareas
shall remain in full force and effect.
H. MATERIAL ADVERSE IMPACT ON PLAN ACTIVITIES
In the event that either FWS or DFG exercises its
discretion under the Unforeseen Circumstances or Enforcement and
Remedies provisions of this Agreement resulting in the imposition
on Fieldstone of further Mitigation, enhancement, compensation,
conservation or protection for impacts of the Plan Activities on
Species of Concern and habitat, or resulting in a material
adverse effect on the economic value of the Project contrary to
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the terms of this Agreement, Fieldstone, at its option and upon
compliance with the provisions of Section III. I. below, may
withdraw and be released from certain obligations of this
Agreement or may terminate this Agreement in full as provided in
Section XII.G. below.
I. NOTICE, MEET AND CONFER PROCEDURES APPLICABLE TO
WITHDRAWAL AND TERMINATION PURSUANT TO CERTAIN
SECTIONS OF THIS ARTICLE III.
Any Party intending to withdraw from certain provisions of
or to terminate this Agreement in accordance with Article III.,
Sections B., E., P., G., orH. shall follow the procedures set
forth in this Section.
1. The Party intending to withdraw or terminate
shall notify the other Parties of that intent at least forty-five
days prior to the date on which the Party intends for such
withdrawal or termination to be effective.
2. The Parties receiving notice in compliance with
Section I.I. may request a meeting to discuss withdrawal or
termination with the Party intending to withdraw or terminate,
which meeting shall occur no less than 30 days prior to the date
on which the Party giving notice intends for such withdrawal or
termination to be effective.
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3 . At such meeting, the Parties will use their best
efforts to attempt to develop a solution that will avoid the need
to withdraw from certain provisions of or terminate this
Agreement, or that will minimize the adverse impacts of such
withdrawal or termination on the other Parties to the Agreement.
J. CONVEYANCE OF THE CONSERVED HABITAT AND THE MITIGATION
LANDS OR DELEGATION OF MANAGEMENT AND FUNDING DUTIES
TO THE LONG TERM MANAGEMENT ENTITY
Upon conveyance in fee or delegation of Fields tone's
management and funding duties with respect to Conserved Habitat
or the Mitigation Lands to a Long Term Management Entity in
accordance with Sections V.A. , V.D. or V.E., Fieldstone's
management and funding obligations shall terminate with respect
to such obligations so delegated or such Conserved Habitat or the
Mitigation Lands so conveyed as set forth in Section V.E.
OBLIGATIONS CONTAIlpg"
Fieldstone shall have no obligations under this Agreement,
including, without limitation, those set forth in Article V. of
this Agreement, unless and until the following conditions
precedent have been fully satisfied:
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A. PUBLIC BENEFIT AGREEMENT
The City; shall enter into the Public Benefit Agreement with
Fieldstone, which may address certain City policies, rules,
regulations, development conditions of approval and public
planning processes, and which may govern development within the
Impact Areas and vest in Fieldstone the right to adequately
develop the Project within the Impact Areas of each Subarea such
that implementation of this HCP/OMSP is feasible.
B. ENVIRONMENTAL REVIEW OF THE HCP/OMSP. THIS AGREEMENT
AND THE PUBLIC BENEFIT AGREEMENT
Fieldstone, the City, FWS and DFG shall cooperate in good
faith to process the HCP/OMSP, this Agreement and, when prepared,
the Public Benefit Agreement, under applicable federal, state and
local laws governing environmental and public review of the
approval of the HCP/OMSP and execution of this Agreement by FWS,
DFG and the City, and of the approval and execution of the Public
Benefit Agreement by the City. In no event shall Fieldstone be
obligated to perform its obligations under this Agreement if any
lawsuit challenging the validity of the HCP/OMSP, this Agreement
or the Public Benefit Agreement is pending.
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V. COVENANTS AND OBLIGATIONS OF FIELDSTONE AND. UPON
Upon satisfaction of the conditions precedent'set forth in
Article IV. above, Fieldstone shall perform the obligations as
set forth in this Article V. to minimize and mitigate the
potential impacts of the Project on Species of Concern and Plan
Area habitat and to benefit NCCP Program subarea, subregional and
regional conservation of the Species of Concern and habitat, and,
as a Permittee, shall comply with the terms and conditions of any
Section 10(a) Permit, Incidental Take Statement, or Section 2081
Permit issued pursuant to this Agreement.
A. DEDICATION OF CONSERVED HABITAT AND MITIGATION LANDS
TO THE CONSERVATION ENTITY
1. Dedication of Conserved Habitat Owned by
Fieldstone
Prior to or concurrently with the later of either:
(1) one year after the Effective Date; or (2) six months after
the execution of the Public Benefit Agreement by Fieldstone and
the City as required by Section IV.A. above/ and, notwithstanding
the foregoing, in any event prior to undertaking grading or
significant disturbance related to development of the Project
within the Impact Areas of the Plan Area, Fieldstone shall
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irrevocably offer to convey a fee interest or a conservation
easement substantially similar in form to the conservation
easement set forth in Exhibit 4, in and over Conserved Habitat to
the HMP Conservancy as a Conservation Entity, to DFG as a
Conservation Entity, or to another Conservation Entity approved
by FWS and DFG, provided that the entity when established is
qualified to accept and enforce a conservation easement. Such
irrevocable offer to convey shall be in the form required by
Sections V.A.3. and V.A.4. below.
2. Acquisition and Dedication of the Mitigation
Lands
a. Acquisition of the Mitigation Lands
Fieldstone shall acquire the Mitigation Lands for
dedication pursuant to Section V.2.b., which Mitigation Lands
shall be approved by FWS and DFG in the exercise of each agency's
reasonable discretion in accordance with Section XI.D. The
Parties currently anticipate that FWS and DFG will evaluate the
acceptability of the Mitigation Lands in accordance with the
criteria set forth in Section 5.A.2. of the HCP/OMSP. However,
at the time that Fieldstone acquires the Mitigation Lands,
Fieldstone and the City may propose alternative criteria for the
approval of such Mitigation Lands in accordance with
Sections VII.I.2. and XI.D. In the event that Fieldstone and the
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City propose alternative criteria, then, in accordance with
Sections VII.I.2. and XI.D., FWS and DFG shall each use their
best efforts to_ jointly develop with Fieldstone and the City the
criteria under ESA and CESA that FWS and DFG, respectively, will
use to evaluate the acceptability of such Mitigation Lands and to
reasonably approve the Mitigation Lands pursuant to such
criteria.
b. Dedication of the Mitigation Lands
Prior to or concurrently with the earlier of
either: (1) the recordation of a final subdivision tract map
pursuant to California Government Code Section 66499.30 for
development within the Northwest Subarea; or (2) undertaking
grading or significant disturbance related to development of the
Project within the Impact Areas of the Northwest Subarea,
Fieldstone shall irrevocably offer to convey a fee interest or a
conservation easement substantially similar in form to the
conservation easement set forth in Exhibit 4, in and over the
Mitigation Lands to the HMP Conservancy as a Conservation Entity,
to DFG as a Conservation Entity, or to another Conservation
Entity approved by FWS and DFG, provided that the entity when
established is qualified to accept and enforce a conservation
easement. Such irrevocable offer to convey shall be in the form
required by Sections V.A.3. and V.A.5. below. Fieldstone shall
have no obligation to acquire or make an irrevocable offer to
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convey a fee interest or conservation easement in and over the
Mitigation Lands if a final subdivision tract map for the
Northwest Subarea is not recorded.
3. Certificate of Public Purpose
Any irrevocable offer to convey a fee interest in
Conserved Habitat or the Mitigation Lands to DFG shall be
accompanied by a Certificate of Public Purpose substantially
similar in form to the certificate attached hereto as Exhibit 6.
4. Condition of Conserved Habitat Title
The Conservation Entity, FWS and DFG shall have the
right to review a title report for Conserved Habitat to be
irrevocably offered to the Conservation Entity pursuant to
Section V.A.I. Title to a fee interest or conservation easement
irrevocably offered pursuant to Section V.A.I, shall be free and
clear of all covenants, conditions and exceptions that would
significantly adversely affect the use of Conserved Habitat for
purposes of Conservation and Management; provided, however, that
any irrevocable offer to convey and subsequent conveyance of a
fee interest or conservation easement in and over the Conserved
Habitat in accordance with Section V.A.I, shall be subject to,
and shall except from the offer and conveyance and reserve to
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Fieldstone or its successors, assigns or designees those matters
set forth in Exhibit 9.
5. Condition of Mitigation Lands Title
Conditions of title potentially significantly
adversely affecting any irrevocable offer to convey and
subsequent conveyance of a fee interest or conservation easement
in and over the Mitigation Lands to a Conservation Entity
pursuant to Section V.A.2. for purposes of Conservation and
Management shall be subject to approval by FWS and DFG; provided,
however, that any irrevocable offer to convey and subsequent
conveyance of a fee interest or conservation easement in and over
the Mitigation Lands in accordance with Section V.A.2. shall be
subject to matters of every kind and nature that affect title to
such Mitigation Lands and do not materially interfere with the
use of such Mitigation Lands for Conservation and Management
purposes.
6. Effect of Conveyance of Fee Title to the
Conservation Entity
In the event that Fieldstone irrevocably offers to
convey a fee interest, rather than a conservation easement, in
Conserved Habitat or the Mitigation Lands in accordance with this
Section V.A. to the Conservation Entity, then the Conservation
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Entity shall also serve as the Long Term Management Entity
because that entity will own a fee interest, which encompasses
not only the conservation easement interest, but also management
responsibilities. Consequently, all provisions of this Agreement
governing the creation and duties of the Long Term Management
Entity, including, without limitation, Sections V.C., V.D. and
V.E., shall apply to the conveyance of such interest and to the
Conservation Entity.
B. AUTHORIZATION TO TAKE SPECIES OF CONCERN WITHIN IMPACT
AREAS
The Parties acknowledge and agree that Fieldstone and the
City shall be authorized to Take Species of Concern as set forth
in and subject to the conditions set forth in this Section V.B.,
which conditions shall be incorporated into any Section 10 (a)
Permit, Incidental Take Statement, or Section 2081 Permit issued
pursuant to this Agreement .
1. Authorization of Take Within the Rancheros-
Southeast II Suharea and Rancho Santa Fe Road
Fieldstone and the City are authorized under ESA,
including Section 10 (a), the California Fish and Game Code,
including Sections 2081, 2835 and 3007, the City Wildlife
Constraints and Requirements, and this Agreement, to Take, in
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accordance with this Agreement, the Species of Concern within, or
in connection with the development of, the Impact Areas located
in the Rancheros^-Southwest II Subarea, and within all right-of-
way for Future Rancho Santa Fe Road, upon irrevocably offering to
convey a fee interest or conservation easement to the
Conservation Entity as described in Section V.A.I, above, in and
over Conserved Habitat.
2. Authorization to Take Species of Concern Within
the Northwest Subarea
Fieldstone is authorized under ESA, including
Section 10(a), the California Fish and Game Code; including
Sections 2081, 2835 and 3007, the City Wildlife Constraints and
Requirements, and this Agreement to Take, in accordance with this
Agreement, the Species of Concern within Impact Areas of the
Northwest Subarea upon the occurrence of both of the following
events: (1) the irrevocable offer by Fieldstone to convey a fee
interest or conservation easement in and over Conserved Habitat
as set forth in Section V.A.I, immediately above; and (2) the
irrevocable offer by Fieldstone to convey a fee interest or
conservation easement in and over the Mitigation Lands to the
Conservation Entity as set forth in Section V.A.2. above.
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3. No Final Approval by the City
Nothing in this Section V.B. should be interpreted as
a final approval of the Project, or any grading for the Project,
by the City, and further review by and development permits from
the City will be required before any portion of the Project may
be developed; however the City shall not request, require, impose
or recommend further Mitigation, compensation, enhancement,
protection or conservation as set forth in Section XVI.A.
C. MANAGEMENT AND OPERATION OF CONSERVED HABITAT AND THE
MITIGATION LANDS BY FIELDSTONE
Subject to Article XIII., Fieldstone shall not grade or
otherwise disturb Conserved Habitat or the Mitigation Lands.
Further, Fieldstone shall implement and fund the Ongoing
Management Duties and funding obligations with respect to
Conserved Habitat and the Mitigation Lands as set forth in
Sections V.C.I, and V.C.3. until Fieldstone conveys a fee
interest in or delegates its Ongoing Management Duties with
respect to Conserved Habitat or the Mitigation Lands to the Long
Term Management Entity, as set forth in Sections V.A.6. or V.D.,
and V.E.I. Fieldstone shall also conduct the Fixed Management
Duties and funding obligations as set forth in Sections V.C.2.
and V.C.3., until Fieldstone delegates these duties to a Long
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Term Management Entity pursuant to a separate agreement approved
by DFG and FWS in accordance with Section V.E.2.
1 - Fieldstone's Ongoing Management Duties
With respect to Conserved Habitat and the Mitigation
Lands that Fieldstone has not conveyed in fee or with respect to
which Fieldstone has not delegated its management and funding
obligations as provided in Sections V.A.6 or V.D., Fieldstone
shall be the Plan Operator. As Plan Operator, Fieldstone shall
perform the following Ongoing Management Duties:
a. Fieldstone shall prepare a management plan
for annual review by FWS and DFG that will describe the
management activities to be performed with respect to Conserved
Habitat and the Mitigation Lands that it owns or for which it is
responsible. The annual management plan shall include measures
to accomplish the following Ongoing Management Duties as
necessary and in a manner substantially similar to management
activities currently implemented by Fieldstone:
(1) Remove trash from Conserved Habitat and
the Mitigation Lands and monitor areas within Conserved Habitat
and the Mitigation Lands where unauthorized dumping has occurred
in the past to prevent additional disturbance and to prevent the
establishment of non-native weedy plant species;
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(2) Trap and remove cowbirds for the sole
purpose of reducing the potential for cowbird parasitism of
Gnatcatcher and other passerine nests, which is necessary for the
continued survival of the Gnatcatcher; and
(3) maintain existing access controls to
Conserved Habitat and the Mitigation Lands.
b. As part of the management plan reviewed
annually, Fieldstone shall prepare a management budget to
implement the Ongoing Management Duties to be performed with
respect to Conserved Habitat and the Mitigation Lands in
accordance with this Section. This budget shall be consistent
with and shall not exceed the expenditures required by the Budget
set forth in Section of the HCP/OMSP.
c. Fieldstone shall provide the personnel,
equipment, and, in accordance with Section V.C.3. and the Budget,
the funding to prepare and implement, in the exercise of its
broad discretion, the annual management plan.
2. Fieldstone's Fixed Management Duties
Unless Fieldstone delegates its Fixed Management
duties as set forth in Section V.E.2., Fieldstone shall provide
the personnel, equipment, and, in accordance with Section V.C.3.
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and the Budget, the funding to prepare and implement, in the
exercise of its broad discretion, the following Fixed Management
Duties: ~
a. Immediately prior to undertaking grading or
significant disturbance related to development of the Project in
any portion of an Impact Area adjacent to Conserved Habitat,
Fieldstone shall fence or otherwise limit access to Conserved
Habitat.
b. Upon planning and undertaking subdivision
construction related activities for the Project, including
preparation of grading and construction plans, Fieldstone shall
prepare a Construction/Build-Out Impact Minimization and
Mitigation Plan that incorporates into such Project development
construction plans and activities the impact avoidance and
minimization measures set forth in Sections 5.C. and 5.D. of the
HCP/OMSP as required to avoid or minimize significant adverse
impacts of Project development construction activities on
Conserved Habitat and the Species of Concern, which
Construction/Build-Out Impact Minimization and Mitigation Plan
shall be subject to approval by the City in accordance with
Section VII.J.I.
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3. Funding
a. Funding Ongoing Management Duties
With respect to Conserved Habitat and the
Mitigation Lands that Fieldstone has not conveyed in fee or with
respect to which Fieldstone has not delegated its management and
funding obligations as provided in Sections V.A.6 or V.D.,
Fieldstone shall fund the implementation of the Ongoing
Management Duties in accordance with this Section V.C.3. and the
Budget.
b. Funding Fixed Management Duties
With respect to those Fixed Management Duties
that Fieldstone has not delegated as set forth in Section V.E.2.
below, Fieldstone shall fund the implementation of such Fixed
Management Duties in accordance with this Section V.C.3. and the
Budget.
c. The Budget and Other Funds
The Parties acknowledge that the Budget
represents a reasonable estimate of the anticipated costs and
expenses for Fieldstone's implementation of the HCP/OMSP, except
that the anticipated costs of acquiring the Mitigation Lands
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pursuant to Section V.A.2. have not been included in the Budget,
although Fieldstone must fund such acquisition in accordance with
that Section. _The Parties further acknowledge that, upon
agreement of all Parties, the categories within the Budget and
the amounts for any budgeted activity may change from time to
time,- however, Fieldstone shall not have any obligation to
provide funds in excess of the amounts set forth in the Budget.
Fieldstone shall have the right to obtain funds for
implementation of the HCP/OMSP by use of any available funds that
it may qualify to receive for Wildlife, acquisition, or
Conservation and Management purposes, including, but not limited
to use of taxes, assessments, levies, grants or other types of
funding provided from any public or private source, including,
without limitation, the State, the NCCP Program, and the HMP
Program. Use by Fieldstone of such funds to implement the
HCP/OMSP shall offset Fieldstone's monetary obligations pursuant
to the Budget and this Agreement.
4. No Further Management Duties
Unless otherwise specifically provided for in this
Agreement, Fieldstone shall not be required to perform additional
management responsibilities other than those identified in this
Section V.C. For example, but without limitation, Fieldstone
shall not be required to revegetate Conserved Habitat or the
Mitigation Lands in the event that a fire, which is caused by
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events beyond Fieldstone's control, destroys habitat within such
lands.
D. CONVEYANCE OF CONSERVED HABITAT AND THE MITIGATION
LANDS OR DELEGATION OF MANAGEMENT RESPONSIBILITIES TO
THE LONG TERM MANAGEMENT ENTITY
1. Conveyance or Delegation to the Long Term
Management Entity in General
Within six months of the date on which Fieldstone
extends an irrevocable offer to dedicate a fee interest or
conservation easement in and over Conserved Habitat or Mitigation
Lands in accordance with Sections V.A.I., V.A.2. and V.A.6,
above, or, within such other longer period as•Fieldstone in its
sole discretion shall designate, the Parties shall cooperate to
complete conveyance of the fee interest in or delegation of
Fieldstone's Ongoing Management Duties and funding obligations
set forth in Sections V.C.I, and V.C.3.a. above with respect to
such Conserved Habitat or the Mitigation Lands to the Long Term
Management Entity of Fieldstone's choice, provided that the Long
Term Management Entity is approved by the City, FWS and DFG,
which approval shall not be unreasonably withheld. At
Fieldstone's sole option, Fieldstone may extend the time in which
such conveyance or delegation must be completed in accordance
with this Section. Such conveyance or delegation shall be in the
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form set forth in Section V.D.3. below. FWS, DFG and the City
each approve the HMP Conservancy as an appropriate Long Term
Management Entity and FWS and DFG each approve DFG and The Nature
Conservancy as an appropriate Long Term Management Entity.
a. HMP Conservancy Favored as Long Term
Management Entity
The Parties anticipate that Fieldstone will
convey a fee interest in, and thereby delegate its Ongoing
Management Duties and funding obligations set forth in
Sections V.C.I, and V.C.3.a. with respect to Conserved Habitat
and the Mitigation Lands to the HMP Conservancy as both the
Conservation Entity and the Long Term Management Entity in
accordance with Section V.A. and this Section V.D.I.
b. Alternative Long Term Management Entities
If Fieldstone is unable to convey a fee interest
in or delegate its Ongoing Management Duties and funding
obligations set forth in Sections V.C.I, and V.C.S.a. with
respect to Conserved Habitat or the Mitigation Lands to the HMP
Conservancy pursuant to Section V.A. and this Section V.D.I.,
then Fieldstone will convey a fee interest in or delegate such
management and funding obligations with respect to Conserved
Habitat or the Mitigation Lands to: (1) DFG or The Nature
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Conservancy, upon approval of the City in accordance with
Section VII.J.2., which approval shall not be unreasonably
withheld; or (2) the Long Term Management Entity approved by the
City, FWS and DFG, which approval shall not be unreasonably
withheld.
2. Conveyance or Delegation to a Homeowners
Association as Long Term Management Entity
If for any reason (including, without limitation,
failure of the Long Term Management Entity to accept a fee
interest in or delegation of Fieldstone's Ongoing Management
Duties and funding obligations set forth in'Sections V.C.I,
and V.C.3.a. with respect to Conserved Habitat or the Mitigation
Lands) Fieldstone is unable to convey a fee interest in or
delegate its Ongoing Management Duties and funding obligations
set forth in Sections V.C.I, and V.C.3.a. with respect to
Conserved Habitat or the Mitigation Lands pursuant to
Section V.A. or Section V.D.I, above, then, without limiting
Fieldstone's other rights and remedies to redress failure to
comply with this Agreement, Fieldstone may, as a last resort and
in its sole discretion, convey a fee interest in or delegate its
management and funding obligations set forth in Sections V.C.I,
and V.C.B.a. with respect to Conserved Habitat or the Mitigation
Lands to a Homeowners Association, when Fieldstone causes such
Homeowners Association to be established in accordance with
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applicable laws during the normal course of Project development.
By execution of this Agreement, the City, FWS and DFG approve the
Homeowners Association as an appropriate Long Term Management
Entity, provided that prior to any conveyance of Conserved
Habitat or the Mitigation Lands or delegation of Ongoing
Management Duties and funding duties to the Homeowners
Association, Fieldstone shall have dedicated a conservation
easement over such lands to the Conservation Entity in accordance
with Sections V.A.I, or V.A.2., as applicable. Such conveyance
or delegation to the Homeowners Association shall be in the form
set forth in Section V.D.3. below.
3. Condition of Title
All conveyances made pursuant to this Section V.D.
shall be subject to any conservation easements over Conserved
Habitat and the Mitigation Lands required by Section V.A., and
shall be subject to other matters of any kind and nature that
affect title to the Conserved Habitat or the Mitigation Lands and
do not materially interfere with the use of the Conserved Habitat
or the Mitigation Lands for Conservation and Management purposes.
Further, all conveyances of Conserved Habitat made pursuant to
this Section shall be subject to and shall except from conveyance
and reserve to Fieldstone or its successors, assigns or designees
those matters set forth in Exhibit 9.
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E. LONG TERM MANAGEMENT OF CONSERVED HABITAT AND THE
MITIGATION LANDS AFTER FEE CONVEYANCE OR DELEGATION OF
DUTIES
1. Termination of Fieldstone's Ongoing Management
Duties and Funding Obligations and Assumption of
Such Obligations
Upon conveyance of a fee interest in or delegation of
Fieldstone's Ongoing Management Duties and funding obligations
set forth in Sections V.C.I, and V.C.3.a. with respect to
Conserved Habitat or the Mitigation Lands to a Long Term
Management Entity as provided above in Sections V.A. or V.D., the
Long Term Management Entity shall assume Fieldstone's position as
the Plan Operator with respect to Conserved Habitat or the
Mitigation Lands and shall assume Fieldstone's Ongoing Management
Duties and funding obligations set forth in Sections V.C.I, and
V.C.3.a.,- consequently, Fieldstone's Ongoing Management Duties
and funding obligations set forth in Sections V.C.I, and V.C.S.a.
shall terminate with respect to Conserved Habitat or the
Mitigation Lands and Fieldstone shall be released from such
obligations. Once the Long Term Management Entity becomes the
Plan Operator, the Long Term Management Entity shall hold,
manage, operate, maintain and fund the Conservation and
Management of Conserved Habitat or the Mitigation Lands in
accordance with this Section V.E. and Section of the HCP/OMSP.
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2. Termination of Fieldstone's Fixed Management
Duties and Funding Obligations and Assumption of
Such Obligations
At Fieldstone's option, Fieldstone may delegate its
Fixed Management Duties and funding obligations set forth in
Sections V.C.2. and V.C.3.b. above to another person or entity
and such person or entity may assume and Fieldstone shall thereby
be released from such Fixed Management Duties and funding
obligations by a separate agreement between Fieldstone and such
person or entity, provided that such agreement is consistent with
Section V.C.2. above and the Budget, and is approved by FWS and
DFG, which approval shall not unreasonably be withheld.
3. Management and Funding After Fee Conveyance or
Delegation of Duties
a. The Management Advisory Committee
Upon conveyance in fee or delegation of
Fieldstone's Ongoing Management Duties or Fixed Management Duties
and related funding obligations with respect to Conserved Habitat
or the Mitigation Lands as provided in Sections V.A. or V.D. and
Sections V.E.I, and V.E.2. above, the Parties shall establish the
Management Advisory Committee. The Management Advisory Committee
shall be composed of representatives of: the Long Term Management
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Entity, the person or entity assuming Fixed Management Duties and
funding obligations, Fieldstone, the City, FWS and DFG. The
Management Advisory Committee shall meet formally or informally
at least once annually to review the long term implementation of
the HCP/OMSP in accordance with this Section V.E. The duties of
the Management Advisory Committee shall be to: (i) consult
annually with the Long Term Management Entity acting as Plan
Operator to cooperatively establish an annual management plan for
the next year, which shall describe the Ongoing Management
Duties, Fixed Management Duties, and all other activities to be
carried out by the Long Term Management Entity within the
Conserved Habitat and the Mitigation Lands for which it is
responsible in accordance with Sections V.A. or V.D., and
Sections V.E.I, and V.E. 2. above,- (ii) review the results of the
Conservation and Management activities carried out during the
previous year/ (iii) recommend revisions to Conservation and
Management measures contained in the annual management plan as
necessary; and (iv) recommend reallocation of funds among various
Conservation and Management activities, all in accordance with
Section 5.B. of the HCP/OMSP; however, absent a determination by
FWS and DFG that Unforeseen Circumstances have occurred as set
forth in Article XII. below, the Management Advisory Committee
shall not recommend expenditures in excess of the Budget. All
actions of the Management Advisory Committee shall be consistent
with the requirements of this Agreement and Section 5.B. of the
HCP/OMSP. As long as Fieldstone retains any interest in any
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lands within the Plan Area, Fieldstone shall have the right to
designate representatives to the Management Advisory Committee
regardless of its interest in Conserved Habitat.
b. Long Term Funding
(1) Long Term Funding by the City
The Parties anticipate that Fieldstone will
convey a fee interest in, and thereby delegate its Ongoing
Management Duties and funding obligations set forth in
Sections V.C.I, and V.C.3.a. with respect to Conserved Habitat
and the Mitigation Lands to the HMP Conservancy as both the
Conservation Entity and Long Term Management Entity in accordance
with Sections V.A.I., V.A.2., V.A.6. and V.D.I, above. If
Fieldstone chooses to convey a fee interest in or delegate its
management and funding obligations set forth in Sections V.C.I,
and V.C.3.a. with respect to Conserved Habitat or the Mitigation
Lands to the HMP Conservancy pursuant to Sections V.A.
and V.D.I., then the City, in accordance with applicable laws,
shall fund the implementation of the HCP/OMSP as set forth in
this Agreement and the Budget through the HMP by use of any funds
available for Wildlife, acquisition, or Conservation and
Management purposes, including, but not limited to use of taxes,
assessments, levies, grants or other types of funding provided
from any public or private source, including without limitation,
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the State, the NCCP Program, and the HMP Program. In the event
that the City funds the implementation of the HCP/OMSP as set
forth in this Section by use of taxes, assessments or levies that
will affect the Plan Area, Fieldstone shall, in accordance with
applicable laws, cooperate with the City to establish and consent
to the imposition of reasonable taxes, assessments or levies
encumbering the Plan Area.
(2) Long Term Funding by the Homeowners
Association
The Parties anticipate that, as a last
resort and due for example, but without limitation, to the
failure of the HMP Conservancy to accept a fee interest in or the
management duties and funding obligations related to Conserved
Habitat or the Mitigation Lands, Fieldstone may convey a fee
interest in or delegate such duties related to Conserved Habitat
or the Mitigation Lands to the Homeowners Association pursuant to
Section V.D.2. above. If Fieldstone chooses to convey a fee
interest in or delegate its Ongoing Management Duties and funding
obligations set forth in Sections V.C.I, and V.C.3.a. with
respect to Conserved Habitat or the Mitigation Lands to the
Homeowners Association as the Long Term Management Entity, then
Fieldstone will provide, by execution and recordation of a
covenant, condition and restriction or otherwise in accordance
with applicable laws, for the Homeowners Association to assume
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the Ongoing Management Duties and funding obligations related to
the Conservation and Management of the Conserved Habitat or the
Mitigation Lands for which it is responsible, and will provide
for the creation of a Conserved Habitat Maintenance Charge to be
assessed on each Plan Area development unit as set forth in this
Section and to be collected by the Homeowners Association;
consequently Fieldstone shall be released from such duties and
obligations. The Conserved Habitat Maintenance charge shall be
determined by Fieldstone and shall be assessed in the amount of
up to $50.00 per residential unit per year, as necessary to
provide adequate funding in accordance with this agreement and
the Budget, which charge will be subject to limited increases in
the sole discretion of Fieldstone. Further,•such change shall
allocate on a pro-rata basis to owners of any completed units
within the jurisdiction of the Homeowners Association the
reasonably anticipated costs and expenses of Conservation and
Management in accordance with this Agreement and the Budget for
the Conserved Habitat or the Mitigation Lands for which it is
responsible during the next succeeding year. However, in the
event and to the extent that a tax or assessment is levied on or
with respect to any units within the Plan Area, or any private or
public funds become available to provide for the costs and
expenses of Wildlife, acquisition, or Conservation and Management
of Conserved Habitat or the Mitigation Lands, such tax,
assessment or public or private funds shall be offset against the
Conserved Habitat Maintenance Charge otherwise payable and, to
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the extent thereby offset, such charge shall not be assessed to
or payable by any unit owner within the Plan Area.
c. Coordination of Conservation and Management
Measures With Other Conservation Programs
Through the Management Advisory Committee, the
Parties shall coordinate the acquisition of the Mitigation Lands
and the Conservation and Management of Conserved Habitat and the
Mitigation Lands to the extent possible with other conservation
efforts and programs, including, without limitation, the NCCP
Program, the MHCP and the HMP Program. At the option of
Fieldstone and the City, and upon reasonable approval of FWS and
DFG, Fieldstone and the City may participate in a broader
conservation plan or program acceptable to both Fieldstone and
the City, and Fieldstone or the City, as appropriate, would be
subject to the restrictions of such broader conservation plan and
would have the right to participate in and receive and apply to
implementation of the HCP/OMSP the benefits of such a plan,
including but not limited to the benefit of taxes, assessments,
levies, grants or other types of funding provided for Wildlife,
acquisition, or Conservation and Management purposes from any
public or private source, including without limitation the State,
the NCCP Program, and the HMP Program.
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F. VALLECITOS WAATER DISTRICT LANDS
The Parties acknowledge that the Vallecitos Water
District owns the lands surrounding the Stanley Mahr reservoir,
identified on the Map as an area excluded from the Plan Area, and
neither Fieldstone nor the City owns or controls such lands. The
Parties further acknowledge that neither Fieldstone nor the City
can control or deliver assurances regarding limits on the
construction by the Vallecitos Water District of temporary or
permanent water lines or facilities across or under the
Vallecitos Water District parcel. The Parties also acknowledge
that FWS and DFG have jurisdiction to control the significant
adverse impacts of future activities of the Vallecitos Water
District to the extent such activities are regulated under ESA,
and CESA and the NCCP Program, respectively. Subject to these
acknowledged facts, Fieldstone shall use its best efforts to
cooperate with FWS, DFG, and the City to obtain, prior to grading
or significant disturbance related to development of the Project
in Parcel C, assurances from the Vallecitos Water District
regarding the prevention of further significant human-induced
degradation of existing Wildlife biological values on the lands
surrounding Stanley Mahr reservoir identified on the Map, which
assurances FWS and DFG shall consider and reasonably approve if
such assurances substantially accomplish such purpose. In the
event that Fieldstone, the City, DFG and FWS cannot obtain such
assurances, then Fieldstone may propose and DFG and FWS may
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consider approval of the biological integrity of the eastern
portion of the Rancheros-Southeast II Conserved Habitat Parcel
Wildlife corridor in accordance with alternative criteria as set
forth in Section XI.E.2. below.
G. FUNDING OF OTHER CONSERVATION PROGRAMS
1. The City HMP Program
Prior to or concurrently with the recordation of the
first final subdivision tract map pursuant to California
Government Code Section 66499.30 for development within the
Impact Areas related to the Project, Fieldstone shall pay to the
City that sum of money not to exceed one hundred fifty thousand
dollars ($150,000), which the City requires to fund the HMP
Program.
2. Research
Prior to or concurrently with the recordation of the
first final subdivision tract map pursuant to California
Government Code Section 66499.30 for development within the
Impact Areas related to the Project, Fieldstone shall pay to the
person or entity of its choice, approved by FWS and DFG, the sum
of fifty thousand dollars ($50,000) to conduct research regarding
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the Conservation and Management of the Gnatcatcher and coastal
sage scrub habitat.
VI. FINDINGS AND DETERMINATIONS
A. FINDINGS AND DETERMINATIONS BY FWS UNDER ESA
FWS has found and determined that the HCP/OMSP as
implemented by this Agreement meets the requirements of a
conservation plan for purposes of ESA, including, without
limitation, the purposes of 16 U.S.C. Section 1539 and 50 C.F.R.
Section I7.22(b)(2). More particularly, FWS has found and
determined that, with respect to the HCP/OMSP as implemented by
this Agreement:
1. the taking of the Species of Concern in
connection with the Plan Activities will be incidental to an
otherwise lawful activity,-
2. the impacts of such taking of the Species of
Concern will be, to the maximum extent practicable, minimized and
mitigated;
3. Fieldstone and the City have ensured that
adequate funding for the implementation of the HCP/OMSP will be
provided through this Agreement;
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4. Fieldstone and the City have ensured that
adequate procedures to deal with Unforeseen Circumstances are
provided through this Agreement;
5. the taking of the Species of Concern in
connection with the Plan Activities as contemplated by the
HCP/OMSP and this Agreement will not appreciably reduce the
likelihood of the survival and recovery of the Species of Concern
in the wild;
6. all measures required by FWS as necessary or
appropriate for purposes of the HCP/OMSP are provided for in and
implemented by this Agreement;
7. FWS has received such other assurances as it has
deemed necessary to ensure that the HCP/OMSP will be implemented;
and
8. FWS has considered the anticipated duration and
geographic scope of the Plan Activities, including the impacts of
the Plan Activities on Species of Concern and Plan Area habitat
and the degree to which such impacts affect the Species of
Concern and the habitat within the Plan Area, the City, the
subregion, and the region, and has considered the assurances
provided to Fieldstone and the City under this Agreement and has
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determined that the foregoing findings and determinations are in
accordance with ESA.
B. FINDINGS AND DETERMINATIONS BY FWS UNDER THE MIGRATORY
BIRD TREATY ACT
FWS has considered the anticipated nature and geographic
scope of the Plan Activities,, including the impacts of the Plan
Activitie :n Birds of Concern and Plan Area habitat, and the
degree to *nich such impacts affect the Birds of Concern and
habitat, and has considered the assurances provided to Fieldstone
and the City under this Agreement and has determined that, based
upon the measures contained in the HCP/OMSP as implemented by
this Agreement, a MBTA Permit allowing Take of the Birds of
Concern in connection with the Plan Activities shall be issued,
upon appropriate application, to the City, Fieldstone and MAG
Properties.
C. FINDINGS AND DETERMINATIONS BY DFG
DFG has found and determined that the HCP/OMSP as
implemented by this Agreement meets the requirements of CESA,
including, without limitation, Sections 2081 and 2053, CEQA, and
the NCCP Act. More particularly, DFG has found and determined
that with respect to the HCP/OMSP as implemented by this
Agreement:
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FINDINGS 1-8 ARE DRAWN FROM DF6 GUIDELINES FOR NO JEOPARDY
DETERMINATIONS. DFG SHOULD CONSIDER WJiKTHKR TO MAKE THE
FINDINGS WITH RESPECT TO THIS 2081. DFG TYPICALLY MAKES THESE
FINDINGS FOR 2090 CONSULTATIONS AND COULD MAKE THEM UNDER 2053
FOR 2081 PERMITS.
1. No viable or recoverable population of any
Species of Concern will be eliminated and no significant
proportion of a population of any Species of Concern will be
adversely affected by the Plan Activities.
2. The range of the Species of Concern will not be
significantly diminished by the Plan Activities.
3. The habitat used by the Species of Concern will
not be significantly adversely affected by either the immediate
or future effects of the Plan Activities.
4. The access to habitat by Species of Concern will
not be significantly adversely affected as a result of the Plan
Activities.
5. Take in connection with the Plan Activities will
not adversely affect current or future efforts to provide
protection for the Species of Concern or their habitat.
6. Take in connection with the Plan Activities will
not adversely affect plans for recovery or eventual delisting of
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any Species of Concern currently listed as "endangered" or
"threatened" under CESA.
7. Take in connection with the Plan Activities will
not significantly adversely interfere with the reproductive or
other behavior of the Species of Concern.
8. Take in connection with the Plan Activities will
not result in the extinction of the Species of Concern.
9. Take of the Species of Concern in connection with
the Plan Activities is authorized for Conservation and Management
purposes pursuant to CESA, including Section 2081.
10. Take of the Species of Concern- in connection with
the Plan Activities will not jeopardize the continued existence
of any Species of Concern or result in the destruction or adverse
modification of habitat essential to the continued existence of
the Species of Concern.
FINDINGS 11-13 ARE DERIVED DIRECTLY FROM SECTION 1 OF A.B.
2172 (UNCODIFIED) AMD CAL. FISH AMD GAME CODE SECTION 2805(a),
WHICH ARE THE PROVISIONS OF THE NCCP ACT THAT ESTABLISH THE
PURPOSES OF NCCP PLANS
11. The HCP/OMSP as implemented by this Agreement
will, to the maximum extent feasible, avoid, minimize and
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compensate for impacts of the Plan Activities on Species of
Concern and Plan Area habitat.
12. The HCP/OMSP as implemented by this Agreement
will sustain and restore the habitat within the Plan Area to the
level necessary to maintain, in conjunction with the HMP, MHCP
and the NCCP Program, the continued viability of those biological
communities impacted by the Plan Activities.
13. The HCP/OMSP, as independent initial component of
the HMP, and together with the HMP, as a component of the MHCP,
provides for area-wide protection and perpetuation of natural
wildlife diversity, while allowing compatible and appropriate
development growth. Therefore, the HCP/OMSP is consistent with
the goals and purposes of the NCCP Act and will serve as a
completed independent component of an NCCP which encompasses the
Plan Area, prepared, approved and implemented pursuant to the
NCCP Act. In this context, the HCP/OMSP as implemented by this
Agreement also serves to further regional wildlife conservation
planning, which can effectively address cumulative impact
concerns, minimize wildlife habitat fragmentation, promote
multispecies management and conservation, identify and ensure
appropriate mitigation for impacts on fish and wildlife, and
promote the conservation of broad based natural communities and
species diversity.
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14. The HCP/OMSP as implemented by this Agreement
ensures that the impacts of the Plan Activities on Species of
Concern and Plan Area habitat will be insignificant or will be
minimized and mitigated to a level of insignificance as required
by CEQA.
15. The HCP/OMSP as implemented by this Agreement
ensures that an adequate management reporting and monitoring
program for the HCP/OMSP Conservation and Management measures
will be implemented as required by CEQA.
D. FINDINGS AND DETERMINATIONS BY THE CITY
The City has balanced the environmental, health, safety and
socioeconomic attributes of the Project and has considered all
identifiable alternatives to and minimization and Mitigation
measures for the Project, and has found and determined that:
1. The Conservation and Management measures
contained in the HCP/OMSP and implemented by this Agreement
provide for Species of Concern and Plan Area habitat as required
by all City Wildlife Constraints and Requirements;
2. The HCP/OMSP as implemented by this Agreement
ensures that the impacts of the Plan Activities on Species of
Concern and Plan Area habitat will be insignificant or will be
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minimized and mitigated to a level of insignificance as required
by CEQA;
3. The HCP/OMSP as implemented by this Agreement
provides that an adequate management reporting and monitoring
program for the HCP/OMSP Conservation and Management measures
will be implemented as required by CEQA;
4. The implementation of the HCP/OMSP provides
significant benefit to goals and purposes of the HMP.
VII. COVENANTS AND OBLIGATIONS OF THE CITY
Based on the findings and determinations set forth in
Section VI.D., the City covenants and shall perform the
obligations as set forth in this Article VII.
A. IN GENERAL
The City shall use and exercise the rights and authority
available to it to further the purposes of and assure compliance
with the terms of this Agreement, and as a Permittee, shall
comply with the terms and conditions of this Agreement and with
the conditions of any Section 10(a) Permit, Incidental Take
Statement or Section 2081 Permit issued hereunder.
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B. NO FURTHER MITIGATION REQUIRED IN COMPLIANCE WITH CEQA
OR CITY WILDLIFE CONSTRAINTS AND REQUIREMENTS
As of the Effective Date, the City has completed CEQA
review of the approval of the HCP/OMSP and the execution of this
Agreement, has received any comments from FWS, DFG and other
interested agencies, has made the findings and determinations set
forth in Section VI.D. of this Agreement, and has provided an
opportunity for public comment regarding this Agreement and the
HCP/OMSP under other applicable laws, rules, regulations,
policies and conditions of approval. Therefore, the City shall
not request, impose, recommend or require any further Mitigation,
compensation, enhancement, protection or Conservation and
Management with respect to impacts of the Plan Activities on
Species of Concern or habitat under the City Wildlife Constraints
and Requirements, CEQA or any other applicable statutes, laws,
rules, regulations, policies, ordinances, conditions of approval,
goals, or constraints other than that already set forth in the
HCP/OMSP as implemented by this Agreement. Nothing in this
Section VII.B. should be interpreted as a final approval of the
Project by the City, and further review by and development
permits from the City will be required before the Project may be
developed.
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C. EXECUTION OF THE PUBLIC BENEFIT AGREEMENT
The City_ shall use its best efforts to expeditiously enter
into the Public Benefit Agreement, which may address certain City
policies, rules, regulations, development conditions of approval
and public planning processes, and which may govern development
within the Impact Areas and vest in Fieldstone the right to
adequately develop the Project within the Impact Areas of each
Subarea such that implementation of this HCP/OMSP is feasible.
In addition, execution of the Public Benefit Agreement is a
condition precedent to Fieldstone's performance pursuant to this
Agreement as set forth in Section IV.A. above.
D. MODIFICATION OF MELRQSE AVENUE
The City shall use its best efforts to finally approve the
redesign and reclassification of Melrose Avenue from a prime
arterial to a major arterial. Under Section III.G. above,
Fieldstone may withdraw from certain provisions of or terminate
this Agreement in accordance with that Section if the City fails
to approve such redesign and reclassification of Melrose Avenue.
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E. CONDUCTING ENVIRONMENTAL REVIEW OF THE PUBLIC BENEFIT
AGREEMENT. AND THE PROJECT
The City shall use its best efforts to complete the
environmental review of the Public Benefit Agreement and each
phase of the Project in a timely manner under applicable federal,
state and local laws governing environmental and public review of
the approval of those projects.
F. CONDITIONS OF DEVELOPMENT OF THE MAG PARCEL
The Parties acknowledge that the HCP/OMSP as implemented by
this Agreement provides adequate minimization and Mitigation
measures for potential significant adverse impacts to Wildlife
from development of the Impact Area containing the MAG Parcel.
Both the HCP/OMSP and this Agreement were prepared at the sole
cost and expense of the City and Fieldstone. Consequently, the
City shall require as a condition of any discretionary approval
granted to MAG Properties in connection with its development of
the MAG Parcel, or, if no such discretionary approval is
required, as a condition of any construction permit granted to
MAG Properties in connection with its development of the MAG
Parcel that MAG Properties shall either: (1) enter into an
agreement with Fieldstone to equitably share the cost of
preparing and implementing the HCP/OMSP, which addresses the MAG
Parcel, as set forth in Article XIV.; or (2) independently comply
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with all laws, rules and regulations applicable to development of
the MAG Parcel, including the City Wildlife Constraints and
Requirements, _ESA, CESA, NEPA, and CEQA. The City shall have the
right to review any agreement between Fieldstone and MAG
Properties immediately prior to its execution as set forth in
Section XIV.B. below.
G. PARTICIPATION ON THE MANAGEMENT ADVISORY COMMITTEE
1. Attendance
The City shall participate in the meetings of the
Management Advisory Committee.
2. Rules. Regulations and Ordinances
The City, subject to its police powers and legal and
regulatory zoning and land use authority, shall adopt such rules,
regulations or ordinances necessary to govern the use of and
permissible activities upon the Conserved Habitat to fully
protect the Conserved Habitat in a manner consistent with this
Agreement and the HCP/OMSP.
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H. CREATION OF THE HMP CONSERVANCY
The City .shall use its best efforts to establish the HMP
Conservancy to accept a fee interest in the Conserved Habitat and
the Mitigation Lands for purposes of: (l) acting as the
Conservation Entity to prohibit uses of the Conserved Habitat and
the Mitigation Lands that are inconsistent with Wildlife and
habitat conservation as set forth in Section V.A.; and (2) acting
as the Long Term Management Entity, to hold, manage, and fund the
management of Conserved Habitat and the Mitigation Lands as set
forth in Sections V.A.6., V.D. and V.E.
I. COOPERATION IN DESIGN AND REVIEW AND IN SEEKING
ASSURANCES
1. Cooperation in Design and Review of Utilities and
Public Service Facilities
The Parties acknowledge that development of the
Project will require the creation, construction, installation,
repair, maintenance, and replacement of required utilities,
facilities, related corridors, and public uses and rights-of-way
(including, but not limited to Fuel Management Zones, temporary
and permanent drainage, water, electricity, telephone, sewer, gas
and other utility and service uses, ways and facilities). The
City shall cooperate with Fieldstone, FWS and DFG to analyze the
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need for, and design, location, installation and economic
feasibility of such facilities, utilities, corridors, public uses
or rights-of-w^y to minimize and mitigate to the maximum extent
practicable any significant adverse effects of such activities on
the Species of Concern within Conserved Habitat and to permit
Fieldstone's efforts to reclaim or revegetate any portion of
Conserved Habitat necessary to mitigate any significant adverse
effects on Species of Concern within Conserved Habitat resulting
from construction, installation, repair, maintenance, and
replacement of such required utilities, facilities, related
corridors, and public uses and rights-of-way.
2. Cooperation With Respect to Development of
Alternative Criteria for Mitigation Lands
In the event that Fieldstone intends to propose, in
accordance with Sections V.A.2. and XI.D. below, that DFG and FWS
evaluate the Mitigation Lands in accordance with criteria other
than those set forth in Section of the HCP/OMSP, then the
City shall cooperate with Fieldstone to develop such criteria.
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3. Cooperation in Reviewing the Management Plan
Prepared by Fieldstone
The City shall cooperate with Fieldstone, FWS and DFG
to annually review the management plan prepared by Fieldstone in
accordance with Section V.C.I, above.
4. Cooperation With Respect to Seeking Relocation of
SDG&E Easements
The Parties acknowledge that the City does not own or
control the SDG&E easements shown on the Map. Subject to this
acknowledged fact, the City shall use its best efforts,
consistent with its regulatory authority and jurisdiction, to
cooperate with Fieldstone, FWS, and DFG regarding relocation and
consolidation of the southern-most SDG&E easement into the
northern-most SDG&E easement, as set forth in and subject to the
provisions of Section VIII.B. below, including, without
limitation, the requirements set forth in that section regarding
minimization and mitigation of potential significant adverse
impacts that might result from such a consolidation.
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5. Cooperation to Obtain Assurances from the
Vallecitos Water District
Subject to the facts acknowledged'by the Parties in
Section V.F.2. above, the City shall use its best efforts,
consistent with its regulatory authority and jurisdiction, to
cooperate with FWS, DFG, and Fieldstone to obtain assurances from
the Vallecitos Water District regarding the prevention of further
significant human-induced degradation of existing Wildlife
biological values on the lands surrounding Stanley Mahr reservoir
identified on the Map.
J. REVIEW AND APPROVALS
1. Construction/Build-Out Impact Minimization and
Mitigation Plan
Upon submission by Fieldstone, the City shall use its
best efforts to promptly review and reasonably approve the
preparation of Construction/Build-Out Impact Minimization and
Mitigation Plans and the incorporation of the provisions of such
plans into Project development construction plans and activities
for each Subarea as set forth in Section V.C.2. above, which
approval shall not be unreasonably withheld.
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2. Alternative Long Term Management Entity
Upon-request by Fieldstone, the City shall use its
best efforts to promptly review and reasonably approve as
appropriate an entity other than the HMP Conservancy to serve as
the Long Term Management Entity in accordance with
Section V.D.l.b., which approval shall not unreasonably be
withheld.
K. COORDINATION OF CONSERVATION AND MANAGEMENT MEASURES
WITH OTHER CONSERVATION PROGRAMS
The City shall coordinate implementation of the HCP/OMSP as
set forth in this Agreement with the HMP, the MHCP, and any NCCP
encompassing the Plan Area prepared, adopted and approved by the
City pursuant to the NCCP Act.
A. COOPERATION WITH RESPECT TO THE SAN MARCOS CREEK
CORRIDOR
The Parties acknowledge that, other than the Fieldstone/
SM Creek Parcel, Fieldstone and the City are not obligated to
dedicate lands adjacent to the San Marcos Creek to Conservation
and Management purposes. With respect to the Fieldstone/SM Creek
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Parcel, such property is a part Conserved Habitat, and all terms
of this Agreement that apply to Conserved Habitat apply to that
property. Sub-ject to these acknowledged facts, Fieldstone and
the City each will use its best efforts to cooperate with FWS,
DFG, and the City of San Marcos to attempt to encourage the
Conservation and Management of those lands adjacent to the San
Marcos Creek; however, neither the City nor Fieldstone can
guarantee the Conservation and Management of any lands adjacent
to the San Marcos Creek other than the Fieldstone/SM Creek
Parcel.
B. COOPERATION WITH RESPECT TO MINIMIZATION AND
MITIGATION OF ANY IMPACTS RELATED TO RELOCATION OF
SDG&E EASEMENTS
As set forth Sections VII.I.4., and XI.G.2., the City, FWS
and DFG shall use their best efforts, consistent with their
regulatory authority and jurisdiction, to cooperate with
Fieldstone to relocate the southern-most SDG&E easement depicted
on the Map to a location outside of Parcel C, and to consolidate
that easement into the existing northern-most SDG&E easement
depicted on the Map, which currently traverses Conserved Habitat
If and when SDG&E consolidates the southern-most SDG&E easement
into the northern-most SDG&E easement, Fieldstone and the City
shall cooperate with FWS and DFG to analyze any potential
significant adverse impacts to the Species of Concern within
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Conserved Habitat that are likely to result from such
consolidation. If the Parties determine from that analysis that
such consolidation is likely to result in significant adverse
impacts to the Species of Concern within Conserved Habitat, in
excess of potential impacts to such Species of Concern currently
possible due to the existing location of the northern-most SDG&E
easement, then Fieldstone and the City shall cooperate with FWS
and DFG, and the Parties will encourage SDG&E to cooperate to
determine measures necessary to reclaim or revegetate any portion
of Conserved Habitat as required to minimize and mitigate such
significant adverse impacts. FWS and DFG shall review and
reasonably approve such measures, which approval shall not be
unreasonably withheld.
IX. COVENANTS AND OBLIGATIONS OF FWS
Based on the findings and determinations set forth in
Section VI.A. and B., FWS covenants and shall perform the
obligations as set forth in this Article IX.
A. IN GENERAL
FWS shall use and exercise the rights and authority
available to it to further the objectives of and assure
compliance with the terms of this Agreement, and shall
expeditiously and in good faith cooperate with DFG, Fieldstone
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and the City in their efforts to implement, perform and observe
the provisions of this Agreement.
B. NOTICE OF THE HCP/OMSP IN PROPOSED RULES AFFECTING ANY
SPECIES OF CONCERN
FWS shall send any future public notices to Fieldstone and
the City of any proposed rule to protect a Species of Concern as
an ESA Listed Species of Concern, to designate critical habitat
for any Species of Concern, or to take substantially similar
protective action under other laws and regulations related to any
Species of Concern or Plan Area habitat. In such future public
notices, FWS shall include notice to the public of its intention
to issue a Section 10(a) Permit or Incidental Take Statement
pursuant to Section IX.C. immediately below, allowing the Take of
such Species of Concern in connection with the Plan Activities,
which will accomplish the purposes and conform with the
procedures of permit review regulations.
C. ISSUANCE OF A SECTION 10(a) PERMIT OR AN INCIDENTAL
TAKE STATEMENT
As of the Effective Date, FWS has made the findings and
determinations set forth in Section VI.A. of this Agreement, and
has provided the opportunity for public comment regarding this
Agreement and the HCP/OMSP under applicable ESA permit review
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procedures, provisions of NEPA and other applicable laws.
Further, as of the Effective Date, FWS has completed an internal
consultation pursuant to Section 7 of ESA (16 U.S.C. § 1536) and
the regulations thereunder regarding the potential effects of the
Plan Activities on the Species of Concern, and has issued a
biological opinion, which finds that, based on currently
available best scientific information, implementation of the Plan
Activities will not jeopardize the continued survival of the
Species of Concern and will not result in the destruction or
adverse modification of habitat in violation of ESA.
Therefore, in the event that on or after the Effective
Date, FWS has protected or determines to protect any Species of
Concern as an ESA Listed Species of Concern or FWS has designated
or determines to designate critical habitat for any Species of
Concern, then, upon application initiated by Fieldstone or the
City for a Section 10(a) Permit or Incidental Take Statement (as
appropriate) permitting the Plan Activities, and upon compliance
with applicable permit review procedures, and subject to the
provisions of this Agreement, and specifically the provisions for
Unforeseen Circumstances set forth in Article XII. below, FWS
shall:
1. with respect to Species of Concern that are ESA
Listed Species of Concern on the Effective Date,
concurrently with execution of this Agreement,
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issue a Section 10(a) Permit or an Incidental
Take Statement (as appropriate) for the remainder
- of the Term allowing the Take, subject to the
terms of this Agreement, of any such ESA Listed
Species of Concern in connection with the Plan
Activities;
2. with respect to Species of Concern that become
ESA Listed Species of Concern after the Effective
Date, issue, concurrently with or as soon as
possible after such listing or protective action,
a Section 10(a) Permit or an Incidental Take
Statement (as appropriate) for the remainder of
the Term allowing the Take, subject to the terms
of this Agreement, of any such ESA Listed Species
of Concern in connection with the Plan
Activities; and
3. not request, impose, recommend or require further
Mitigation, enhancement, compensation,
conservation, or protection with respect to any
ESA Listed Species of Concern or its habitat
under ESA, NEPA or any other applicable laws,
other than that already set forth in the HCP/OMSP
as implemented by this Agreement.
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As set forth in Section XVII.I. below, time is of the essence in
performing the obligations imposed by this Agreement.
D. MONITORING OF A SECTION 10(a) PERMIT OR AN INCIDENTAL
TAKE STATEMENT
After issuance of any Section 10(a) Permit or Incidental
Take Statement pursuant to this Agreement, FWS in cooperation
with DFG, Fieldstone, the City, the Plan Operator and the
Management Advisory Committee, shall monitor the implementation
of such Section 10(a) Permit or Incidental Take Statement and the
performance of the terms of this Agreement, including the
Conservation and Management of the Conserved Habitat and the
Mitigation Lands, to assure compliance with the Section 10(a)
Permit or Incidental Take Statement and the HCP/OMSP as
implemented by this Agreement.
E. ISSUANCE OF A MBTA PERMIT
As of the Effective Date, FWS has made the findings and
determinations set forth in Section VI.B. of this Agreement, and
has provided the opportunity for public comment regarding this
Agreement and the HCP/OMSP under applicable permit review
procedures and provisions of NEPA and other applicable laws.
Therefore, upon application initiated by Fieldstone or the City
for a MBTA Permit allowing implementation of the Plan Activities,
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and upon compliance with applicable permit review procedures, FWS
shall:
1. issue as soon as possible after such application
a MBTA Permit allowing the Take of any Birds of
Concern in connection with the Plan Activities;
and
2. not request, impose, recommend or require further
Mitigation, enhancement, compensation,
conservation, or protection with respect to any
Birds of Concern or the habitat within the Plan
Area under the Migratory Bird Treaty Act, ESA,
NEPA or any other applicable laws, other than
that already set forth in the'HCP/OMSP as
implemented by this Agreement.
As set forth in Section XVII.I. below, time is of the essence in
performing the obligations imposed by this Agreement.
X. COVKHMITS AMD OBLIGATIONS OF PPG
Based on the findings and determinations set forth in
Section VI.C., DFG covenants and shall perform the obligations as
set forth in this Article X.
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A. IN GENERAL
DFG shall_ use and exercise the rights and authority
available to it to further the objectives of and assure
compliance with the terms of this Agreement, and shall
expeditiously and in good faith cooperate with Fieldstone and the
City in their efforts to implement, perform and observe the
provisions of this Agreement.
B. NOTICE OF PROPOSED RULES AFFECTING ANY SPECIES OF
CONCERN
DFG shall send any future public notices to Fieldstone and
the City of any proposed rule to protect a Species of Concern as
a CESA Listed Species of Concern, or to take substantially
similar protective action under other laws and regulations
related to any Species of Concern or its habitat.
C. ISSUANCE OF A SECTION 2081 PERMIT
As of the Effective Date, DFG has made the findings and
determinations set forth in Section VI.C. of this Agreement and,
specifically, has concluded that implementation of the Plan
Activities will not violate the NCCP Act and will not jeopardize
the continued survival of the Species of Concern nor result in
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the destruction or adverse modification of habitat in violation
of CESA.
Therefore, in the event that on or after the Effective
Date, the California Fish and Game Commission has protected or
determines to protect any Species of Concern as a CESA Listed
Species of Concern, then, upon application initiated by
Fieldstone or the City for a Section 2081 Permit authorizing the
Plan Activities, and subject to the provisions of this Agreement,
and specifically the provisions for Unforeseen Circumstances set
forth in Article XII. below, DFG shall:
1. with respect to Species of Concern that are CESA
Listed Species of Concern on the Effective Date,
concurrently with execution of this Agreement,
issue a Section 2081 Permit, substantially
similar in form to Exhibit 6, for the remainder
of the Term allowing the Take, subject to the
terms of this Agreement, of any such CESA Listed
Species of Concern in connection with the Plan
Activities;
2. with respect to Species of Concern that become
CBSA Listed Species of Concern after the
Effective Date, issue, concurrently with or as
soon as possible after such listing or protective
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action, a Section 2081 Permit, substantially
similar in form to Exhibit 6, for the remainder
_of the Term allowing the Take, subject to the
terms of this Agreement, of any such CESA Listed
Species of Concern in connection with the Plan
Activities; and
3. not request, impose, recommend or require further
Mitigation, enhancement, compensation,
conservation, or protection with respect to any
CESA Listed Species of Concern or its habitat
under the NCCP Act, CESA, CEQA or any other
applicable laws, other than that already set
forth in the HCP/OMSP as implemented by this
Agreement.
As set forth in Section XVII.I. below, time is of the essence in
performing the obligations imposed by this Agreement.
D. MONITORING OF A SECTION 2081 PERMIT
After issuance of any Section 2081 Permit pursuant to this
Agreement, DFG in cooperation with FWS, Fieldstone, the City, the
Plan Operator and the Management Advisory Committee, shall
monitor the implementation of such Section 2081 Permit and the
performance of the terms of this Agreement, including the
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Conservation and Management of the Conserved Habitat and the
Mitigation Lands, to assure compliance with the Section 2081
Permit and the HCP/OMSP as implemented by this Agreement.
XI. COVENANTS AND OBLIGATIONS OF FWS AND DFG
Based on the findings and determinations set forth in
Section VI.A. and VI.C., FWS and DFG, respectively, each
covenants and shall perform the obligations as set forth in this
Article XI.
A. REVIEW OF ANNUAL MANAGEMENT PLAN AND PARTICIPATION ON
THE MANAGEMENT ADVISORY COMMITTEE
1. Annual Review of Fieldstone's Management Plan
FWS and DFG each shall ensure to the maximum extent
possible the availability of its staff to cooperate with and
provide technical and research assistance to Fieldstone and the
City to promptly review the management plan prepared by
Fieldstone pursuant to Section V.C.I, above.
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2. Participation on the Management Advisory
Committee
a. Attendance
FWS and DFG each shall participate in the
meetings of the Management Advisory Committee.
b. Consultation and Review
FWS and DFG each shall ensure to the maximum
extent possible the availability of its staff to cooperate with,
provide technical and research assistance to, and review
management plans prepared by the Management Advisory Committee.
B. SUPPLEMENTAL ENFORCEMENT
Each of FWS and DFG, subject to its legal and regulatory
authority, may supplement enforcement activities of Fieldstone,
the City and the Plan Operator to fully protect the Species of
Concern within the Conserved Habitat and the Mitigation Lands in
a manner consistent with this Agreement and the HCP/OMSP.
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C. COOPERATION IN DESIGN OF UTILITIES AND PUBLIC SERVICE
FACILITIES
The Parties acknowledge that development of the Project
will require the creation, construction, installation, repair,
maintenance, and replacement of required utilities, facilities,
related corridors, and public uses and rights-of-way (including,
but not limited to Fuel Management Zones, temporary and permanent
drainage, water, electricity, telephone, sewer, gas and other
utility and service uses, ways and facilities) that will result
in some level of impact to Conserved Habitat. FWS and DFG each
shall use its best efforts to cooperate with Fieldstone and the
City to analyze the design, location and installation of such
facilities, utilities, corridors, public uses or rights-of-way
reasonably determined necessary and economically feasible to
install or construct by the City and Fieldstone to minimize and
mitigate to the maximum extent practicable any significant
adverse effects of such activities on the Species of Concern
within Conserved Habitat and to permit Fieldstone's efforts to
reclaim or revegetate any portion of Conserved Habitat necessary
to mitigate any significant adverse effects on Species of Concern
within Conserved Habitat resulting from construction,
installation, repair, maintenance, and replacement of such
required utilities, facilities, related corridors, and public
uses and rights-of-way.
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D. REVIEW OF THE MITIGATION LANDS
Pursuant to Section V.A.2. above, Fieldstone must acquire
the Mitigation Lands, which shall be approved by FWS and DFG in
accordance with the criteria set forth in Section of the
HCP/OMSP, or in accordance with such other criteria as Fieldstone
and the City shall propose pursuant to Sections V.A.2. and
VII. 1.2., and FWS and DFG shall approve, which approval shall not
be unreasonably withheld. In the event that Fieldstone and the
City propose alternative criteria to those set forth in the
HCP/OMSP in accordance with Sections V.A.2. and VII.I.2., FWS and
DFG each shall cooperate with Fieldstone and the City to
establish appropriate criteria for acquisition of the Mitigation
Lands as set forth in Section V.A.2., and thereafter such
alternative criteria shall be used for purposes of approving the
Mitigation Lands in accordance with this Section and
Section V.A.2. In establishing alternative criteria for approval
of the Mitigation Lands, FWS, DFG, Fieldstone and the City shall
consider the circumstances existing at the time that Fieldstone
acquires the Mitigation Lands, including but not limited to
circumstances such as: populations and needs of Species of
Concern, other than the Gnatcatcher, both in the wild and within
the Plan Area and such Mitigation Lands; long term Conservation
and Management requirements of such Mitigation Lands/
biodiversity and ecosystem values of such Mitigation Lands;
potential enhancement opportunities for populations of Species of
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Concern within such Mitigation Lands; the extent to which
dedication of such Mitigation Lands for purposes of Conservation
and Management^ will be compatible with other land uses in the
vicinity of such Mitigation Lands; the extent to which dedication
of such Mitigation Lands for purposes of Conservation and
Management will be compatible with socioeconomic and public
safety, health and welfare needs; the economic feasibility of the
acquisition of various potential Mitigation Lands,- and the extent
to which further dedication of lands within the Plan Area for
wildlife conservation might become feasible in the future thereby
decreasing the requirement for off-site Mitigation in the form of
acquisition of such Mitigation Lands. FWS and DFG each shall
promptly review the Mitigation Lands proposed for acquisition by
Fieldstone in accordance with the criteria agreed upon pursuant
to this Section XI.D., and shall in its discretion reasonably
approve the Mitigation Lands consistent with such agreed upon
criteria.
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E. REVIEW OF THE BIOLOGICAL VIABILITY OF THE RANCHEROS-
SOUTHEAST II CONSERVED HABITAT PARCEL
Subject to the facts acknowledged by the Parties in
Section V.F.2. above and in accordance with that Section and
Section VII.I.5., Fieldstone and the City must use their best
efforts to cooperate with FWS and DFG to obtain, prior to grading
or significant disturbance related to development of the Project
in Parcel C, assurances from the Vallecitos Water District
regarding the prevention of further significant human-induced
degradation of existing Wildlife biological values on the lands
surrounding Stanley Mahr reservoir identified on the Map. FWS
and DFG each shall use its best efforts, consistent with its
regulatory authority and jurisdiction, to cooperate with the City
and Fieldstone to obtain assurances from the Vallecitos Water
District regarding the prevention of further significant human-
induced degradation of existing Wildlife biological values on the
lands surrounding Stanley Mahr reservoir identified on the Map.
Further, FWS and DFG shall consider and reasonably approve such
assurances if such assurances substantially demonstrate that such
purpose will be accomplished.
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F. COOPERATION IN CREATING THE HMP CONSERVANCY
1. - The HMP Conservancy
FWS and DFG each shall use its best efforts to
cooperate with and assist the City in establishing the HMP
Conservancy, which shall be appropriate to fulfill the purposes
the Conservation Entity, the Long Term Management Entity and of
this Agreement.
2. DFG May Act as the Conservation Entity or the
Long Term Management Entity
In the event that the HMP Conservancy is not
established or is not qualified to serve as the Conservation
Entity or the Long Term Management Entity, then FWS and DFG shall
cooperate with Fieldstone and the City to reach an agreement by
which DFG or the designated agent of DFG approved by FWS may hold
title to and operate Conserved Habitat or the Mitigation Lands
for Conservation and Management purposes as the Conservation
Entity, the Long Term Management Entity, or both entities as set
forth in this Agreement. If DFG or its designated agent accepts
fee title to any portion of Conserved Habitat or the Mitigation
Lands in accordance with the terms of this Agreement, the Parties
(as appropriate), shall execute a Certificate of Public Purpose,
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substantially in the form of the certificate attached hereto as
Exhibit 6.
G. COOPERATION WITH OTHER LANDOWNERS AND JURISDICTIONS
FOR CONSERVATION AND MANAGEMENT PURPOSES
1. The San Marcos Creek Corridor
Subject to the provisions of Section VIII.A. above,
including, without limitation, the facts acknowledged by the
Parties in that Section, FWS and DFG each shall use its best
efforts, consistent with its regulatory authority and
jurisdiction, to cooperate with the City, Fieldstone and the City
of San Marcos to encourage the Conservation and Management of the
land adjacent to the San Marcos Creek, other than lands owned by
Fieldstone.
2. SDG&E
The Parties acknowledge that neither FWS nor DFG own
the SDG&E easements shown on the Map, and FWS and DFG may only
assert jurisdiction over such lands as set forth in ESA, CESA and
the NCCP Program, respectively. Subject to these acknowledged
facts, FWS and DFG each shall use its best efforts, consistent
with its regulatory authority and jurisdiction, to cooperate with
Fieldstone and the City regarding relocation and consolidation of
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the southern-most SDG&E easement into the northern-most SDG&E
easement, as set forth in and subject to the provisions of
Section VII.I.4. and Section VIII.B. above, including, without
limitation, the requirements set forth in Section VIII.B.
regarding consideration and approval by FWS and DFG of measures
necessary to reclaim or revegetate any portion of Conserved
Habitat as required to minimize and mitigate potential
significant adverse impacts that may result from such a
consolidation.
H. REVIEW AND APPROVAL OF DELEGATION OF FIXED MANAGEMENT
DUTIES AND RELATED FUNDING OBLIGATIONS
In the event that Fieldstone proposes to be released from
and to delegate its Fixed Management Duties and related funding
obligations to another person or entity pursuant to
Section V.E.2., FWS and DFG shall each review the agreement
proposed by Fieldstone for that purpose and shall each approve
the agreement if it is consistent with the provisions and
purposes of this Agreement, which approval shall not unreasonably
be withheld.
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XII. UNFORESEEN CIRCUMSTANCES
A. IN GENERAL
Notwithstanding Sections IX.C. or X.C. regarding issuance
of, respectively, a Section 10(a) Permit or Incidental Take
Statement by FWS, or a Section 2081 Permit by DFG, in the event
that FWS or DFG determine that any Unforeseen Circumstances have
occurred with respect to an ESA Listed Species or a CESA Listed
Species, respectively (including Unforeseen Circumstances made
known by information obtained from public hearings and comments
regarding a proposed listing), FWS and DFG, each in its
discretion, may be excused from fully performing thereafter its
obligations under, respectively, Sections IX.C. and X.C. of this
Agreement, or under, respectively, any Section 10(a) Permit or
Incidental Take Statement or any Section 2081 Permit already
issued and in effect, as provided in and subject to strict
compliance with the provisions of this Article XII.
B. DEFINITIONS
For purposes of this Agreement, Unforeseen Circumstances
are circumstances that:
1. are Unforeseen in that the event, circumstance,
occurrence or information to which the term refers was: (1) not
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provided for, described or contemplated in the HCP/OMSP, the
environmental studies or reports or other documents or
information in the public record of the Wildlife Agency making a
determination regarding Unforeseen Circumstances in accordance
with Section XII.C. below, or in any documents referred to in the
HCP/OMSP, this Agreement or said public record, which record led
to the approval of the HCP/OMSP, this Agreement, or any
Section 10(a) Permit, Incidental Take Statement, or Section 2081
Permit issued pursuant to this Agreement; and (2) not available
to, known, anticipated or contemplated by the Wildlife Agency
making a determination regarding Unforeseen Circumstances in
accordance with Section XII.C. below on the Effective Date of
this Agreement; and
2. result in a Significant Adverse Change in that
the event, circumstance, occurrence or information to which the
term refers results in significant adverse impacts to any ESA
Listed Species of Concern or CESA Listed Species of Concern, such
that FWS or DFG, respectively, could no longer make all of the
findings and determinations set forth in Section VI.A. or
Section VI.C. of this Agreement, respectively, regarding the
effect on such species of the continued implementation of the
HCP/OMSP pursuant to this Agreement.
The Parties acknowledge that in approving the HCP/OMSP and
this Agreement, FWS has an affirmative obligation to consult the
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best scientific and commercial information available and DFG has
the obligation to consult scientific information available. The
Parties presume that, as of the Effective Date, FWS and DFG have
consulted, are aware of and know such information.
C. FORMAL WRITTEN DETERMINATION REGARDING UNFORESEEN
CIRCUMSTANCES
Neither FWS nor DFG shall: (l) excuse its performance of
the covenants set forth in Section IX.C. or X.C., respectively,
pursuant to this Article XII.; (2) suspend an existing
Section 10(a) Permit, Incidental Take Statement, or Section 2081
Permit, respectively; or (3) request, recommend, impose or
require further Mitigation, compensation, enhancement, protection
or conservation with respect to the Plan Activities, unless the
respective Wildlife Agency has made a formal written
determination, after considering information submitted by
Fieldstone and the City in accordance with Section XII.C.3.
below, and based upon the best scientific and commercial
information, that Unforeseen Circumstances have occurred in
accordance with this Article XII. Prior to and as a condition of
making such a determination, the Wildlife Agency shall:
1. provide at least thirty (30) days actual notice
to Fieldstone and the City of its intention to determine whether
Unforeseen Circumstances may have occurred;
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2. provide Fieldstone and the City with a detailed
explanation of the facts that lead the Wildlife Agency to believe
a determination regarding Unforeseen Circumstances may be
necessary;
3. provide Fieldstone and the City with a meaningful
opportunity to submit to the Wildlife Agency for consideration
information regarding the potential Unforeseen Circumstances; and
4. make and support with substantial evidence the
following written findings:
a. a Significant Adverse Change has occurred;
b. such Significant Adverse Change was
Unforeseen; and
c. the Wildlife Agency has complied with its
obligations set forth in this Article XII.,
including, without limitation, the duties
set forth in Section XII.F.
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D. RESPONSE AFTER A DETERMINATION THAT UNFORESEEN
CIRCUMSTANCES HAVE OCCURRED
In the event that a Wildlife Agency determines that
Unforeseen Circumstances have occurred in accordance with
Section XII.C. and upon the request of any Party, the Parties to
this Agreement shall meet within thirty (30) days of such request
to discuss and attempt in good faith to determine the response by
Fieldstone or the City that is required to adequately address the
Unforeseen Circumstances. In determining an appropriate response
to Unforeseen Circumstances, any Party may request the other
Party to meet and discuss appropriate Minor Adjustments,
modifications or amendments to this Agreement or the HCP/OMSP.
Any Minor Adjustment, modification or amendment agreed upon by
the Parties shall be accomplished as set forth in this
Article XII., including, without limitation, Sections XII.E. and
XII.F., and in Article XIII. below.
E. TIMELY ACTION REGARDING UNFORESEEN CIRCUMSTANCES
The Parties shall complete promptly and in a timely manner
all actions required for FWS and DFG to make a determination
regarding whether Unforeseen Circumstances have occurred, and
actions required in response to Unforeseen Circumstances,
including completing any required responsive Minor Adjustments
and amendments and completing environmental or public review of
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any response, or other required actions under ESA, CESA, NEPA,
CEQA or other statutes, such that the requirements of this
Article XII. may be fulfilled before the date on which any
Species of Concern becomes an ESA Listed Species of Concern or a
CESA Listed Species of Concern in order to comply with the intent
of this Agreement and the obligations of FWS and DFG set forth in
Sections IX.C. and X.C., respectively.
F. DUTY TO LIMIT ADVERSE EFFECTS OF UNFORESEEN
CIRCUMSTANCES DETERMINATION AND REQUIRED RESPONSE TO
THE DETERMINATION ON THE PLAN ACTIVITIES
In determining under this Article XII. that Unforeseen
Circumstances have occurred and in responding to Unforeseen
Circumstances under this Article, FWS and DFG each shall act
consistently with and carry out the intent of this Agreement and
the HCP/OMSP, in strict accordance with this Article XII.
Without limiting the foregoing, FWS and DFG shall each comply
with the requirements of this Section XII.F.
1. Duty to Avoid and Minimize Adverse Economic
Effects of Any Determination or Response
FWS and DFG shall each use its best efforts to avoid,
minimize and mitigate to the maximum extent practicable, the
adverse effects of any possible determination of or response to
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Unforeseen Circumstances on the economic value of the Plan
Activities (considering the Mitigation, Conservation and
Management measures already in place pursuant to the HCP/OMSP,
the timing of the Plan Activities, the number, value and type of
units planned for development pursuant to the Plan Activities,
and alternative actions), including, without limitation:
a. reviewing and adopting actions that would
avoid a determination of or response to Unforeseen Circumstances,
including actions that could be taken with respect to:
(1) other lands for which conservation
plans have not been prepared; or
(2) other conservation programs and
efforts, provided that such actions are
not likely to result in adverse impacts
to such programs or efforts;
b. taking all other actions within its
discretion that would avoid the failure to issue or the
suspension of a Section 10(a) Permit, Incidental Take Statement
or Section 2081 Permit; and
c. taking all other actions to avoid the need
to request further Mitigation, conservation, protection,
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compensation or enhancement in addition to that required by this
Agreement.
2. Limitations Governing Response to Unforeseen
Circumstances
Any required response to Unforeseen Circumstances
shall be limited to changes in the HCP/OMSP and the provisions of
this Agreement applicable to the biological composition of, but
not the number of acres of the Mitigation Lands; the management,
operation, maintenance or monitoring of Conserved Habitat and the
Mitigation Lands; and the allocation of funding for the
management and operation of Conserved Habitat and the Mitigation
Lands as set forth in the Budget. In any event, any response to
Unforeseen Circumstances shall not include:
a. adverse modification of the authorization of
Take within the Impact Areas,-
b. material adverse modification of the
configuration of the Impact Areas;
c. increases in funding for the management and
operation of Conserved Habitat that result in material adverse
impacts to the economic value of the Plan Activities; or
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d. any increase in the cost of acquiring the
Mitigation Lands that results in material adverse impacts to the
economic value "of the Plan Activities.
G. EQUITABLE SUSPENSION OF OBLIGATIONS AND RIGHT TO
CANCEL
1. Equitable Suspension
Upon any exercise of discretion by FWS or DFG under
this Article XII. that results in either the failure to issue or
the suspension of a Section 10(a) Permit or Incidental Take
Statement (with respect to any ESA Listed Species of Concern) or
a Section 2081 Permit (with respect to any CESA Listed Species of
Concern) for a certain period, the obligations of Fieldstone or
the City, as appropriate, under this Agreement shall be suspended
for the same certain period. Notwithstanding the foregoing, this
Agreement shall otherwise remain in full force and effect.
2. Equitable Reduction in Obligations
Upon any exercise of discretion by FWS or DFG under
this Article XII. that results in the request, imposition,
requirement or recommendation of any further Mitigation,
compensation, conservation, protection or enhancement beyond that
identified in this Agreement, at the request of Fieldstone or the
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City, the obligations of those entities under this Agreement
shall be equitably reduced.
3. Right to Cancel
In the event that any exercise of discretion by FWS or
DFG under this Article XII. would result in a material adverse
effect on the economic value of the Plan Activities, Fieldstone
may, at its option, upon compliance with the procedures set forth
in Section III. I. above, terminate this Agreement or withdraw
from the obligations of this Agreement related to the Subarea
that is materially adversely affected by such exercise of
discretion. In the event that Fieldstone terminates this
Agreement, the Parties shall have no further rights or
obligations under this Agreement, except the rights or
obligations that accrued prior to the termination. In the event
that Fieldstone withdraws from the obligations of this Agreement
related to a Subarea materially adversely affected by such
exercise of discretion, then the Parties shall have no further
rights or obligations under this Agreement with respect to such
Subarea, except the rights or obligations that accrued prior to
the withdrawal; however, all other rights and obligations of this
Agreement related to unaffected Subareas shall remain in full
force and effect.
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H. ACQUISITION BY FWS AND DFG
Nothing in this Agreement shall be construed to limit the
authority of a Wildlife Agency, upon payment of the fair market
value of the property and other compensation required by law, to
acquire, or to exercise any authority such Wildlife Agency may
have to condemn Impact Areas or lands within the Plan Area for
purposes of Wildlife Conservation and Management.
XIII. AMENPMTgMT.q f MINOR ADJUSTMgTTS AND EMERGENCY ACTIONS
A. PROCEDURE FOR AMENDMENT
Subject to Sections XIII. C. and D., upon the request of any
of the Parties, or in response to a determination by FWS or DFG
in accordance with Article XII. that Unforeseen Circumstances
have occurred and that an amendment is necessary in response, the
procedure for amendment of the HCP/OMSP, this Agreement, a
Section 10 (a) Permit or Incidental Take Statement, or a
Section 2081 Permit shall be as follows:
1. Request for Amendment
The Party requesting an amendment shall notify the
other Parties of this request in writing. The request shall set
forth: (a) tne proposed amendment; (b) the reason for the
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proposed amendment; and (c) whether the proposed amendment would
result in significant adverse environmental impacts.
2. Processing the Amendment
The Parties shall meet within thirty (30) days of the
written request to discuss the amendment and its environmental
impacts, if any. The amendment shall be processed by FWS and
DFG, respectively, in accordance with ESA and CESA. The Parties
shall complete the amendment process in good faith and without
undue delay. The Parties shall complete the amendment process
within a maximum of one hundred eighty (180) days after the
written request is made.
B. PROCEDURE FOR MINOR ADJUSTMENTS AND APPROVALS
Minor Adjustments in the Conservation and Management
measures, and approval by FWS and DFG of certain actions under
the HCP/OMSP as implemented by this Agreement, which require
Minor Adjustments to Conserved Habitat may be necessary from time
to time. Such Minor Adjustments include, but are not limited to:
Minor Adjustments in the boundaries of the Conserved Habitat in
connection with the preparation of Project development plans and
incorporation of the provisions of any Construction/Build-Out
Impact Minimization and Mitigation Plan into Project development
plans and activities as set forth in Section V.C.2. of this
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Agreement; Minor Adjustments to allow for reasonable approval
under Section XI.C. of the construction, installation, repair and
maintenance of utilities and facilities within the Conserved
Habitat; and Minor Adjustments to the HCP/OMSP in response to a
determination by FWS or DFG in accordance with Article XII. that
Unforeseen Circumstances have occurred. In the event that any
such proposed Minor Adjustment or approval is not "minor" in that
it would have a significant adverse impact on the Species of
*
Concern in excess of that contemplated by the HCP/OMSP, an
amendment to the HCP/OMSP shall be required. However, if a
proposed adjustment is a Minor Adjustment, then, subject to
Sections XIII.C. and D., it shall be considered in accordance
with the following procedure:
1.' Request for Minor Adjustment
The Party requesting a Minor Adjustment to this
Agreement or the HCP/OMSP shall submit to the other Party a
writing setting forth: (a) the proposed Minor Adjustment; (b) the
reason for the proposed Minor Adjustment; and (c) assurances that
the proposed Minor Adjustment would not result in significant
adverse environmental impacts.
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2. Processing the Minor Adjustment
a. The Parties shall meet within fifteen (15)
days of the request to discuss the proposed Minor Adjustment and
to make a determination that the proposed Minor Adjustment does
not require compliance with the procedure for amendment set forth
above in Section XIII.A.
b. If a determination is made that the proposed
Minor Adjustment does not require compliance with the procedure
for amendment set forth above in Section XIII.A., and unless
further information is required to make such a determination, the
Parties shall execute all documents and take all actions
necessary to make the Minor Adjustment effective within thirty
(30) days of the request.
c. If additional information is necessary to
make the determination of whether the proposed Minor Adjustment
requires compliance with the procedure for amendment set forth
above in Section XIII.A., the Party seeking such additional
information shall request such information within fifteen (15)
days of said Minor Adjustment request. In such cases, the Party
providing information shall have an additional fifteen (15) days
in which to provide this further information to the other
Parties.
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d. Thereafter, and within a maximum of sixty
(60) days of said Minor Adjustment request, the Parties shall
determine whether the proposed Minor Adjustment requires
compliance with the procedure for amendment set forth above in
Section XIII.A., and, if not, shall execute all documents and
take all actions necessary to make the Minor Adjustment
effective.
e. If the Parties determine that the proposed
Minor Adjustment is not "minor" and does require compliance with
the procedure for amendment set forth above in Section XIII.A.,
the Parties shall comply with such procedure.
C. REQUIREMENT FOR EFFECTIVE AMENDMENT AND ADJUSTMENT
No amendment or Minor Adjustment of the HCP/OMSP, this
Agreement, a Section 10(a) Permit or Incidental Take Statement,
or a Section 2081 Permit shall be adopted and become effective
without the unanimous consent of all Parties and without
compliance with the provisions of this Agreement. In addition,
all amendments or Minor Adjustments shall be through a written
instrument executed by the Parties.
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D. EMERGENCY ACTIONS
Nothing "in this Agreement shall be construed to prohibit
Fieldstone or the City from suspending performance of this
Agreement or the HCP/OMSP in the event that such suspension is
necessary in the defense of human life, even if such suspension
results in Take of ESA Listed Species of Concern or CESA Listed
Species of Concern.
A. THIRD PARTY BENEFICIARY STATUS
MAG Properties owns fee title to the MAG Parcel, as shown
on the Map. The Conservation and Management measures contained
in the HCP/OMSP and implemented by this Agreement avoid, minimize
and mitigate the potential impacts of development activities
within the Impact Area encompassing the MAG Parcel, and provide
advance Mitigation for such impacts. Therefore, the Parties
intend that, upon satisfaction of the condition precedent set
forth in Section XIV.B. below, MAG Properties shall be entitled
to become a Permittee with respect to the MAG Parcel and shall be
entitled to receive as the sole third party beneficiary to this
Agreement all rights and benefits of any Section 10(a) Permit,
Incidental Take Statement or Section 2081 Permit issued pursuant
to this Agreement with respect to the MAG Parcel, provided that
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it assumes and complies with all terms and conditions that bind
Fieldstone set forth in this Agreement and in such Section 10(a)
Permit, Incidental Take Statement, or Section 2081 Permit.
B. CONDITIONS PRECEDENT TO THIRD PARTY BENEFICIARY STATUS
In order to become a Permittee with respect to the MAG
Parcel and to become entitled to receive as the sole third party
beneficiary to this Agreement all rights and benefits of any
Section 10(a) Permit, Incidental Take Statement or Section 2081
Permit issued pursuant to this Agreement with respect to the MAG
Parcel, MAG Properties shall enter into a cooperative agreement
with Fieldstone that is satisfactory to Fieldstone, and which
provides that MAG Properties shall reimburse Fieldstone for MAG
Properties' equitable share of the burden and cost of planning
the Mitigation, Conservation and Management measures set forth in
this Agreement for the MAG Parcel, preparing the HCP/OMSP and
this Agreement, and implementing the obligations of this
Agreement and the HCP/OMSP with respect to the MAG Parcel. Such
cooperative agreement shall be acceptable to Fieldstone, and
Fieldstone shall not unreasonably withhold approval of such
agreement. Such cooperative agreement shall be subject to review
by the City immediately prior to its execution; provided,
however, that the City does not have the right to approve or
reject the terms of the cooperative agreement. Until and unless
MAG Properties enters into such cooperative agreement, it shall
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have no rights or benefits under this Agreement. The Parties
acknowledge that MAG Properties, in its discretion, may elect to
be excluded from benefits of this Agreement and instead
independently comply with all of the otherwise applicable laws,
regulations and rules applicable to the MAG Parcel, including the
City Wildlife Constraints and Requirements, ESA, CESA, NEPA, and
CEQA.
XV. ENFORCEMENT AND PFMKDIES
A. IN GENERAL
Upon any breach of the provisions of this Agreement or of
any Section 10(a) Permit, Incidental Take Statement, or
Section 2081 Permit issued pursuant to this Agreement, the
Parties may pursue all legal and equitable remedies available to
them in accordance with and subject to the provisions of this
Article XV.
B. REGARDING A SECTION 10(a) PERMIT. INCIDENTAL TAKE
STATEMENT OR SECTION 2081 PERMIT
1. Suspension and Revocation
Upon any material breach of this Agreement or material
violation of any Section 10(a) Permit, Incidental Take Statement,
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or Section 2081 Permit issued pursuant to this Agreement, or upon
the occurrence of Unforeseen Circumstances, FWS or DFG may
terminate further performance of this Agreement with respect to
Fieldstone, the City, and MAG Properties (if MAG Properties
becomes a Permittee), and may suspend or revoke the benefits of
any Section 10(a) Permit, Incidental Take Statement, or
Section 2081 Permit with respect to any Permittee, subject to and
in strict compliance with the provisions of this Article XV. and
the Unforeseen Circumstances Article XII. of this Agreement. In
the event that both the Unforeseen Circumstances Article XII. and
this Enforcement and Remedies Article XV. apply to a suspension
or revocation of a Section 10(a) Permit, Incidental Take
Statement or Section 2081 Permit, and should any provisions of
the two Articles be interpreted to conflict, the provisions of
the Unforeseen Circumstances Article XII. shall control
suspension or revocation of such Section 10(a) Permit, Incidental
Take Statement or Section 2081 Permit due to the occurrence of
Unforeseen Circumstances.
2. Notice of Violation
a. Upon the determination by FWS or DFG that
Fieldstone or the City have materially breached or violated this
Agreement, or upon the determination by FWS that any Permittee
has materially violated any Section 10(a) Permit or Incidental
Take Statement, or upon the determination by DFG that any
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Permittee has materially violated any Section 2081 Permit, and
except in the event that the Wildlife Agency making the
determination finds that emergency action is necessary as
provided for in Section XV.B.5. or 6., the Wildlife Agency making
the determination shall notify all Permittees in writing of:
(1) the breach or violation; (2) the action proposed by FWS or
DFG (suspension or revocation of the Section 10(a) Permit or
Incidental Take Statement by FWS; suspension or revocation of the
Section 2081 Permit by DFG); (3) any measures required to remedy
the breach or violation,- (4) the rights of Fieldstone and the
City to object to any proposed action with respect to this
Agreement; and (5) the rights of Permittees to object to any
proposed action by FWS with respect to a Section 10(a) Permit or
Incidental Take Statement, or by DFG with respect to any
Section 2081 Permit.
b. Fieldstone, the City, and MAG Properties
when it is an affected Permittee shall have forty-five (45) days
from the receipt of written notice of a breach or violation of
this Agreement, a Section 10(a) Permit, an Incidental Take
Statement or a Section 2081 permit to file a written objection to
the action proposed under subsection 2.a. immediately above.
Such written objections shall state the reasons for such
objection and may include supporting documentation. Within
forty-five (45) days of receipt of the written objection by
Fieldstone, the City or any affected Permittee, the Wildlife
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Agency initiating notice of a breach shall make a reasonable
decision regarding its proposed action and shall notify the City,
Fieldstone and any other affected Permittee in writing of its
decision, the reasons for its decision and the right of the
Parties and any other affected Permittee to request
reconsideration of its decision according to a procedure
substantially similar to that currently set forth in ESA and its
accompanying regulations (50 C.F.R. § 13.29).
3. Severability
Neither the violation of this Agreement by any one
Party, nor the violation of any Section 10(a) Permit, Incidental
Take Statement, or Section 2081 Permit by any one Permittee shall
adversely affect or be attributed to any other Party or Permittee
not in violation. Further, neither the violation of this
agreement by any one Party, nor the violation of any
Section 10(a) Permit, Incidental Take Permit, or Section 2081
Permit shall result in a suspension or revocation of a
Section 10(a) Permit, Incidental Take Statement or Section 2081
Permit issued to any other Permittee not in violation, or result
in the loss or diminution of any right, privilege or benefit
under this Agreement of any other Party or Permittee not in
violation.
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4. Right to Cure and Reinstatement of a
Section 10(a) Permit. Incidental Take Statement,
or Section 2081 Permit
a. In the event Fieldstone or the City desire
to cure a breach of this Agreement, or any Permittee desires to
cure a violation of a Section 10(a) Permit, Incidental Take
Statement or Section 2081 Permit, such entity shall have forty-
five (45) days from the receipt of written notice pursuant to
subsection 2.a. of this Section to cure any breach or violation.
However, in the event that such alleged breach or violation
cannot reasonably be cured within forty-five (45) days, such
entity may cure such breach or violation within the additional
time that may be reasonably necessary to complete such cure,
provided that within forty-five (45) days of the notice pursuant
to subsection 2.a. of the breach or violation: (1) such entity
commences and reasonably works towards completion of the cure for
such breach or violation; (2) such entity provides the Wildlife
Agency initiating the notice with a written request for
additional time to complete the cure; and (3) the Wildlife Agency
initiating the notice approves such entity's request for
additional time to cure, which approval shall not be unreasonably
withheld. Upon completion by such entity of the remedial
measures to cure the breach or violation, the Wildlife Agency
initiating the notice shall immediately reinstate the -
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Section 10(a) Permit, the Incidental Take Statement, or the
Section 2081 Permit.
b. Upon a written request by a Party or
Permittee for clarification regarding a determination of breach
of violation, and within ten (10) working days of such written
request, the Wildlife agency initiating notice under
subsection 2.a. of this Section and the Party or Permittee shall
meet, consult and cooperate in good faith to attempt to address
the breach or violation and to resolve any conflicts that may
arise regarding the remedial measures suggested by such Wildlife
Agency to redress the breach or violation. Within ten (10)
working days after this meeting, such Wildlife Agency shall
notify all the Parties and any affected Permittee of its
reasonable recommendations regarding the resolution of such
conflicts. Upon receipt of the recommendations, the Party or
Permittee shall follow the procedures set forth immediately above
in Section XV.B.4.a.
c. In the event that any Party or Permittee
fails to cure such material breach or violation as provided above
and FWS is the Wildlife Agency initiating notice under
subsection 2.a. of this Section, FWS may proceed to suspend or
revoke any Section 10(a) Permit or Incidental Take Statement as
provided by law solely with respect to the Party or Permittee in
violation. In the event that any Party or Permittee fails to
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cure such material breach or violation as provided above and DFG
is the Wildlife Agency initiating notice under subsection 2.a. of
this Section, DFG may proceed to suspend or revoke any
Section 2081 Permit as provided by law solely with respect to the
Party or Permittee in violation.
5. Emergency Suspension by FWS
Notwithstanding the foregoing provisions of this
Section XV.B., in the event that FWS determines in writing that
clear and convincing evidence exists showing: (I) that a material
breach of this Agreement by Fieldstone or the City has occurred
or that a material violation of a Section 10(a) Permit or
Incidental Take Statement by a Permittee has occurred, or that
Unforeseen Circumstances have occurred, and (2) that emergency
action is required to protect the Species of Concern from any
further Taking that is not in accordance with the HCP/OMSP as
implemented by this Agreement, FWS may suspend any Section 10 (a)
Permit or Incidental Take Statement issued with respect to the
Species of Concern in need of emergency protection. Any such
suspension shall be for a time not to exceed ninety (90) days.
Upon taking any action to suspend any Section 10(a) Permit or
Incidental Take Statement, FWS shall provide written notice to
all Permittees, and shall otherwise proceed to the maximum extent
practicable as set forth in this Section XV.B. and, with respect
to Unforeseen Circumstances, in Article XII.
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6. Emergency Suspension bv DFG
Notwithstanding the foregoing provisions of this
Section XV.B., in the event that DFG determines in writing that
clear and convincing evidence exists showing: (1) that a material
breach of this Agreement by Fieldstone or the City has occurred
or that a material violation of a Section 2081 Permit by a
Permittee has occurred, or that Unforeseen Circumstances have
occurred, and (2) that emergency action is required to protect
the Species of Concern from any further Taking that is not in
accordance with the HCP/OMSP as implemented by this Agreement,
DFG may suspend any Section 2081 Permit with respect to the
Species of Concern in need of emergency protection. Any such
suspension shall be for a time not to exceed ninety (90) days.
Upon taking any action to suspend any Section 2081 Permit, DFG
shall provide written notice to all Permittees, and shall
otherwise proceed to the maximum extent practicable as set forth
in this Section XV.B. and, with respect to Unforeseen
Circumstances, in Article XII.
C. LIMITATIONS AND EXTENT OF ENFORCEMENT
1. No Further Mitigation
The Parties acknowledge that the purpose of this
Agreement is to provide certainty to FWS and DFG regarding the
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Conservation and Management of the Conserved Habitat, the
Mitigation Lands and the Species of Concern, and to Fieldstone
and the City regarding the implementation of the Plan Activities,
the level of permissible Take of Species of Concern and the
Mitigation, compensation, enhancement, protection, Conservation
and Management required in connection with the impacts of the
Plan Activities on Species of Concern and habitat. Accordingly,
except as otherwise expressly and strictly required by this
Agreement, and specifically as required by the Unforeseen
Circumstances Article XII. above, no further Mitigation,
compensation, protection, enhancement or conservation shall be
requested or required of any Party or Permittee with respect to
the impacts of the Plan Activities on Species of Concern or
habitat.
2. Iniunctive and Temporary Relief
The Parties acknowledge that each Species of Concern
is and the Conserved Habitat and the Mitigation Lands are unique
and a significant loss of a Species of Concern, Conserved
Habitat, or the Mitigation Lands would result in irreparable
damage to such species and the environment. Therefore, temporary
injunctive relief, specific performance or declaratory relief is
appropriate in certain instances involving a breach of this
Agreement or a violation of a Section 10(a) Permit, Incidental
Take Statement or Section 2081 Permit.
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3. No Statutory Limitations
This Agreement is not intended to limit any authority
the United States Government may have to invoke the penalties
provided in ESA or any similar statute, or to limit any authority
the State of California may have to invoke the penalties provided
in CESA or any similar statute. Notwithstanding this Agreement,
any person may Take an ESA Listed Species of Concern or CESA
Listed Species of Concern in defense of his or her life or the
lives of others.
4. Enforceability by Fieldstone and the City
It is acknowledged and agreed by the Parties that any
assurances and commitments provided by FWS and DFG to Fieldstone
and the City with respect to the extent and limitation of
Conservation and Management and Mitigation measures that will be
required in connection with the implementation of the Plan
Activities are enforceable at law or in equity by the City and
Fieldstone based upon the consideration in this Agreement and the
reliance by the City and Fieldstone on the provisions of this
Agreement as set forth in Section XV.C.5. immediately below.
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5. Reliance
The Parties acknowledge that: (l)'in the performance
of this Agreement and in reliance upon the benefits to be
obtained hereunder, Fieldstone and the City will expend and have
expended substantial sums of time and money in planning for,
preparing and implementing the HCP/OMSP; (2) but for the
anticipation and consummation of this Agreement, the expenditures
of time and money by the City and Fieldstone would not have
occurred, occur or continue in the future; (3) Fieldstone and the
City have justifiably relied, and will continue to rely, upon the
provisions of this Agreement and the undertakings of FWS and DFG
under this Agreement; and (4) the benefits accruing to the
Species of Concern, the Conserved Habitat, and the Mitigation
Lands from performance by the City and Fieldstone under this
Agreement are significant and important for the survival of the
Species of Concern and their recovery in the wild.
XVI. NO FURTHER MITIGATION
A. NO FURTHER MITIGATION
Because the purpose of this Agreement is to set forth with
the maximum degree of certainty practicable the obligations and
rights of the Parties with respect to the HCP/OMSP, FWS and DFG
shall not request, impose, recommend or require any further
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Mitigation, compensation, enhancement, protection or conservation
related to impacts of the Plan Activities on Species of Concern
or habitat, except as set forth in the Unforeseen Circumstances
Article XII. of this Agreement. As set forth in Article XII., in
the event that the Parties determine that a response to
Unforeseen Circumstances is required, any further Mitigation,
compensation, enhancement, protection or conservation with
respect to impacts of the Plan Activities on Species of Concern
or habitat required to address Unforeseen Circumstances shall be
limited as set forth in Section XII.F. above. Moreover, for the
same reasons, the City shall not request, impose, recommend or
require any further Mitigation, compensation, enhancement,
protection or Conservation and Management measures related to
impacts of the Plan Activities on Species of Concern or habitat.
B. RIGHT TO CANCEL
In the event that FWS, DFG, or the City impose on or
require of Fieldstone any further Mitigation, compensation,
protection, enhancement or conservation requirements, regulations
or restrictions related to the Species of Concern or the Plan
Area habitat, then, in addition to any other remedy Fieldstone
may possess, Fieldstone, in its sole discretion, shall have the
right, upon compliance with the provisions of Section III.I.
above, to terminate this Agreement and, upon termination, to be
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released from any and all future liabilities or obligations under
this Agreement.
XVII. MISCELLANEOUS PROVISIONS
A. INTERPRETATION OF THE HCP/OMSP
Any specific sections, figures or tables of the HCP/OMSP
that are expressly referenced in this Agreement are incorporated
into this Agreement by such references. In the event of any
material contradiction between the terms of this Agreement and
the terms of the HCP/OMSP, the terms of this Agreement shall
control.
B. FURTHER ACTIONS
From time to time hereafter, Fieldstone, the City, FWS and
DFG shall execute such instruments and other documents and take
such other actions, upon the request of the other, as may be
necessary to carry out the intent of this Agreement. This
Agreement cannot be amended or modified in any way except by a
written instrument duly executed by all Parties.
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C. ENTIRE AGREEMENT
This Agreement supersedes any and all other Agreements,
either oral or in writing, between the Parties solely with
respect to the subject matter hereof, and this Agreement is fully
integrated in that it contains all of the covenants, obligations,
findings, determinations and agreements among the Parties with
respect to said matters. Each Party acknowledges that no
representation, inducement, promise or agreement, oral or
otherwise, has been made by any other Party or anyone acting on
behalf of any Party that is not embodied in this Agreement.
D. SUCCESSORS AND ASSIGNS
The terms, provisions and conditions of this Agreement
shall be binding upon and inure to the benefit of the Parties and
their successors and assigns as set forth in this Section and
Sections V.D., V.E., and XI.H. of this Agreement. This Agreement
and all of its covenants and rights may be assigned and all of
its duties may be delegated independently or in connection with
and as an incident of conveyance of the land within the Plan Area
or the Mitigation Lands to which they pertain. Assignments or
delegations under this Agreement shall not be effective unless
notice of assignment or delegation is provided to the other
Parties. Upon any assignment or delegation, the
assignor/delegator shall be released from and shall no longer
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have any future liabilities or obligations under this Agreement
as set forth herein with respect to lands within the Plan Area or
the Mitigation Lands conveyed or the rights and duties assigned
or delegated, except that the assignor/delegator shall remain
liable for any breach of this Agreement or violation of a
Section 10(a) Permit, Incidental Take Statement, or Section 2081
Permit occurring before such assignment or delegation. Upon
request, any Party shall acknowledge such release in writing
within thirty (30) days of the request.
E. DETERMINATION OF INVALIDITY
In the event that Fieldstone is unable to plan, develop or
build any portion of the Project as contemplated by the HCP/OMSP
and this Agreement as a consequence of a determination that any
provision of this Agreement, the Public Benefit Agreement, or the
HCP/OMSP is void, invalid or otherwise unenforceable, then, in
addition to any other remedy Fieldstone may possess, Fieldstone,
in its sole discretion, shall have the right, upon compliance
with the provisions of Section III.I. above, to terminate this
Agreement and, upon termination, to be released from any and all
future liabilities or obligations under this Agreement.
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F. INTERPRETATION OF AMBIGUITIES
Each Party acknowledges that it has been represented by its
attorney in the making and execution of this Agreement and agrees
that the Agreement shall be deemed to be drafted by each and all
of the Parties. Therefore, any statute or rule providing that
the interpretation of ambiguities is against the drafter shall
not apply.
G. CAPTIONS
The headings of the various articles and sections of this
Agreement are for convenience only, and shall not affect the
meaning of any provision of this Agreement.
H. INDEPENDENT INVESTIGATION
Each Party represents to the other Parties that in entering
into this Agreement, it has made a careful and full investigation
of all of the facts, law and circumstances upon which it relies
in signing this Agreement, and in so signing it has relied only
on the representations contained in this Agreement and not
otherwise.
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I. TIMING
Time is of the essence in the performance of this Agreement
and shall govern the interpretation of each provision of this
Agreement regardless of express reference to this Section in any
provision, which references are made only to emphasize this
Section XVII.I.
J. NO PARTNERSHIP
Neither this Agreement nor the HCP/OMSP shall make or be
deemed to make any Party to this Agreement the agent for, the
partner of, or a joint venturer with any other Party.
K. ELECTED OFFICIALS NOT TO BENEFIT
No member of or delegate to the State Legislature or to the
United States Congress and no Federal Resident Commissioner shall
be entitled to any share or part of this Agreement, or to any
benefit that may arise from it.
L. STANDING TO SUE DFG
If at any time in the future, DFG breaches this Agreement
in violation of the purposes of CESA or otherwise uses or
threatens to use the Conserved Habitat or Mitigation Lands for
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purposes other than the stated Conservation and Management
purposes of this Agreement, then the California Attorney Gener
and the citizens of California shall have standing to sue DFG ;
such breach or nonconforraing use. This provision shall not be
construed to grant standing to sue any Party other than DFG to
any person or entity.
M. BENEFIT OF THE AGREEMENT
This Agreement is solely for the benefit the Parties heretr
and, upon compliance with Article XIV., for the benefit of MAG
Properties; other than MAG Properties there are no actual or
potential third party beneficiaries hereto, and the provisions of
this Agreement can only be enforced by the Parties hereto and, to
the extent that MAG Properties is a third party beneficiary, by
MAG Properties.
N. EMINENT DOMAIN
Nothing herein shall be construed to limit the power of
eminent domain held by any public agency.
0. FORCE MAJEURE
In the event that a Party is wholly or partly prevented
from performing its obligations under this Agreement because of
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unforeseeable causes beyond the reasonable control of and without
the fault or negligence of such Party ("force majeure"),
including, but not limited to, acts of God, labor disputes,
sudden actions of the elements, or actions of federal, state and
local agencies, such Party shall be excused from whatever
performance is affected by such force majeure to the extent so
affected, provided that nothing in this Section shall be deemed
to authorize either Party to violate ESA or CESA and provided
further that:
(1) within fourteen (14) days after the occurrence of
the force majeure, the Party prevented from
performing gives the other Parties written notice
describing the particulars of. the occurrence,-
(2) the suspension of performance is of no greater
scope and no longer duration than is required by
the force majeure;
(3) the Party prevented from performance uses its
best efforts to remedy its inability to perform,
except that this subsection shall not require the
settlement of any legal action, strike, walk-out,
lock-out or other labor dispute on terms that, in
the sole judgment of the Party prevented from
performing, are contrary to its interest; and
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(4) when the Party prevented from performing is able
to resume performance of its obligations
"hereunder, such Party shall give the other
Parties notice to that effect.
P. NOTICES
Any notice permitted or required by this Agreement shall be
delivered personally to the individuals set forth below, or shall
be deemed given five (5) days after deposit in the United States
mail, certified and postage prepaid, return receipt requested,
and addressed as follows or at such other address that any Party
may from time to time notify the other Parties about in writing:
If to Fieldstone:
The Fieldstone/La Costa Associates
Limited Partnership
4565 Morehouse Drive, Suite 250
San Diego, California 92121
Re.- Official Notice Concerning the City of
Carlsbad/Fieldstone HCP/OMSP
With copy to:
Lindell L. Marsh, Esq.
Siemon, Larsen & Marsh
19800 MacArthur Blvd., Suite 350
Irvine, California 92715
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If to FWS:
and
Regional Director
United States Fish and Wildlife Service
500- NE Multnomah, Suite 607
Portland, Oregon 97232
Re: Official Notice Concerning the City of
Carlsbad/Fieldstone HCP/OMSP
Field Supervisor
United States Fish and Wildlife Service
2730 Loker Avenue West
Carlsbad, California 92028
Re: Official Notice Concerning the City of
Carlsbad/Fieldstone HCP/OMSP
If to DFG:
and
California Department of Fish and Game
Region 9 Headquarters
330 Golden Shore, Suite 50
Long Beach, California 90802
Re: Official Notice Concerning the City of
Carlsbad/Fieldstone HCP/OMSP
California Department of Fish and Game
Legal Affairs Division
1416 Ninth Street
Post Office Box 944244
Sacramento, California 94244-2090
Re: Official Notice Concerning the City of
Carlsbad/Fieldstone HCP/OMSP
If to the City:
The City of Carlsbad
2075 Las Palmas Drive
Carlsbad, California 92009
Re: Official Notice Concerning the City of
Carlsbad/Fieldstone HCP/OMSP
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Q. ATTORNEYS' FEES
Each Party shall bear and pay its own actual attorneys
fees, costs and expenses in connection with any action at law or
in equity, including any action for declaratory relief, and any
appeals therefrom, brought to enforce or interpret the provisions
of this Agreement and the HCP/OMSP, subject to and except as
provided by law, including, but not limited to, the Equal Access
to Justice Act (28 U.S.C. § 2412).
R. EFFECTIVE DATE
This Agreement shall be effective only if executed by all
Parties, and shall be effective on the date that the last of the
Parties executes it. Each of the Parties authorizes every other
Party to insert the date on which the last of the Parties
executes this Agreement in the appropriate space on page 1 of
this Agreement.
S. 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.
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IN WITNESS WHEREOF, the parties execute this Agreement to
be in effect as of the first written above.
Date:
" FWS"
UNITED STATES FISH AND WILDLIFE SERVICE
Date: By:
Marvin Plenert, Regional Director
Date: By:
Field Supervisor, Division of
Ecological Services
"DFG"
CALIFORNIA DEPARTMENT OF FISH AND GAME
Date: By:
Boyd Gibbons, Director
By:
Approved as to form:
Craig Manson, General Counsel
California Department of Fish and
Game
[SIGNATURES CONTINUE]
04-13-94
F:\WPDOC\11\2110\02322AGR.R08 149
"FIELDSTONE"
THE FIELDSTONE/LA COSTA ASSOCIATES
LIMITED PARTNERSHIP, A CALIFORNIA
LIMITED PARTNERSHIP
By: The Fieldstone Company, a
California corporation
General Partner
DATE : By:
John Barone
Its:
"THE CITY"
THE CITY OF CARLSBAD, California
DATE : By :
ItS:
04-13-94
F:\WPDOC\11\2110\02322AGR.R08 150
EXHIBIT 1
IMPLEMENTATION AGREEMENT REGARDING
THE CITY OF CARLSBAD/FTELDSTONE/LA COSTA ASSOCIATES
HABITAT CONSERVATION PLAN
Map Showing:
"Plan Area"
"Northwest Subarea"
"Rancheros-Southeast II Subarea"
"Impact Areas"
"Conserved Habitat"
"MAG Parcel"
"SDG&E Easements"
"Northwest Conserved Habitat Parcels"
"Rancheros-Southeast II Conserved Habitat Parcels"
EXHIBIT 2
IMPLEMENTATION AGREEMENT REGARDING
THE CITY OF CARLSBAD/FIELDSTONE/LA COSTA ASSOCIATES
HABITAT CONSERVATION PLAN
Diagram of:
"Existing Rancho Santa Fe Road'
"Future Santa Fe Road"
EXHIBIT 3
IMPLEMENTATION AGREEMENT REGARDING
THE CITY OF CARLSBAD/FTELDSTONE/LA COSTA ASSOCIATES
HABITAT CONSERVATION PLAN
List of Species of Concern
EXHIBIT 4
IMPLEMENTATION AGREEMENT REGARDING
THE CITY OF CARLSBAD/FEELDSTONE/LA COSTA ASSOCIATES
HABITAT CONSERVATION PLAN
Form of Conservation Easement Deed
EXHIBIT 5
IMPLEMENTATION AGREEMENT REGARDING
THE CITY OF CARLSBAD/FIELDSTONE/LA COSTA ASSOCIATES
HABITAT CONSERVATION PLAN
Form of Section 2081 Permit
EXHIBIT 6
IMPLEMENTATION AGREEMENT REGARDING
THE CITY OF CARLSBAD/FIELDSTONE/LA COSTA ASSOCIATES
HABITAT CONSERVATION PLAN
Form of Certificate of Public Purpose
EXHIBIT 7
IMPLEMENTATION AGREEMENT REGARDING
THE CITY OF CARLSBAD/FIELDSTONE/LA COSTA ASSOCIATES
HABITAT CONSERVATION PLAN
Metes and bounds description of
"Northwest Conserved Habitat Parcels"
EXHIBIT 8
IMPLEMENTATION AGREEMENT REGARDING
THE CITY OF CARLSBAD/FTELDSTONE/LA COSTA ASSOCIATES
HABITAT CONSERVATION PLAN
Metes and bounds description of
"Rancheros-Southeast II Conserved Habitat Parcel"
EXHIBIT 9
IMPLEMENTATION AGREEMENT REGARDING
THE CITY-OF CARLSBAD/FIELDSTONE/LA COSTA ASSOCIATES
HABITAT CONSERVATION PLAN
Condition of Title
Irrevocable offers to convey and resulting conveyances and dedications in accordance
with Sections V. A.4. and V.D.3. of the Agreement shall be subject to and shall except
from the offer and conveyance and reserve to Fieldstone or its successors, assignees or
designees: (1) easements and rights-of-way for any activities required in connection
with any abandonment, destruction or removal of the Existing Rancho Santa Fe Road
and any reclamation or revegetation of habitat within that portion of the Existing
Rancho Santa Fe Road alignment or right-of-way located within the Southeast II
Conserved Habitat Parcel that Fieldstone undertakes in order to establish the biological
integrity of the Southeast II Conserved Habitat Parcel Wildlife corridor in accordance
with the provisions of Sections V.F.I, and XI.E.I. of the Agreement; (2) easements
and rights-of-way for the alignment, creation, construction, and installation of the
Future Rancho Santa Fe Road, which Fieldstone may in the future by separate
agreement convey or dedicate to the City as necessary in connection with development
of the Future Rancho Santa Fe Road or development within the Southeast II Subarea;
(3) easements and rights-of-way for the creation, construction, installation, repair,
maintenance, and replacement of utilities, facilities, related corridors, and other public
uses (including but not limited to Fuel Management Zones, temporary and permanent
drainage facilities and rights-of-way, water, electricity, sewer, gas, telephone and other
utility and service facilities and rights-of-way) that Fieldstone or the City now or in the
future may reasonably determine are necessary for or incidental to the Project or public
purposes, provided that any significant adverse effects of such activities on the Species
of Concern within-Conserved Habitat shall be minimized and mitigated to the maximum
extent practicable; (4) easements and rights-of-way for any reclamation or revegetation
of Conserved Habitat necessary to mitigate any significant adverse effects on the
Species of Concern within Conserved Habitat resulting from the Plan Activities or
construction, installation, repair, maintenance, and replacement of such required
utilities, facilities, related corridors, and other public uses; (5) any reversion,
conditions, or covenants in favor of Fieldstone that, at its option, Fieldstone may wish
to retain or impose to assure that any portion of Conserved Habitat or the Mitigation
Lands will be used solely for Conservation and Management purposes in accordance
with this Agreement, and providing for the reversion of tide to Fieldstone in the event
that such property is used for any other purpose; and (6) other matters of every kind
and nature that affect title to any portion of Conserved Habitat or the Mitigation Lands
and do not interfere materially with the use of Conserved Habitat or the Mitigation
Lands for Conservation and Management purposes.