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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 4-26-94 Draft Preliminary Draft Environmental Assessment Contents 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 4-26-94 Draft Preliminary Draft Environmental Assessment Contents 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 4-26-94 Draft iii 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. 4-26-94 Draft 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. 4-26-94 Draff 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: 4-26-94 Draft 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. 4-26-94 Draft 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. 4-26-94 Draft 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. 4-26-94 Draft 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. 4-26-94 Draft 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. 4-26-94 Draft 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 4-26-94 Draft 11 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 4-26-94 Draft 12 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 04-13-94 F:\UPDOC\11\2110\02322AGR.R08 "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 04-13-94 . . F:\WPOOC\11\2110\02322AGR.R08 11 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 04-13-94 . . . F:\WPOOC\11\2110\02322AGR.R08 111 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 04-13-94 F:\UPDOC\11\2110\02322AGR.R08 IV 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 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 V 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 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 VI 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 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 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 04-13-94 . . . 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 04-13-94 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. 04-13-94 F:\UPDOC\11\2110\02322AGR.R08 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 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 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 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 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 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 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. 04-13-94 F:\UPDOC\11\2110\02322AGR.R08 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. 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 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. 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 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 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 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, 04-13-94 F: \WPDOC\11 \2110N.02322AGR. R08 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. 04-13-94 F:\UPOOC\11\2110\02322AGR.R08 10 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 04-13-94 F:\UPOOC\11\2110\02322AGR.R08 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 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 12 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.). 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 13 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. 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 14 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. 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 15 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 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 16 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 04-13-94 F:\UPOOC\11\2110\02322AGR.R08 17 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. 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 18 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. 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 19 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. 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 20 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. 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 21 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 04-13-94 F: \WPDOC\ 11\211 OX02322AGR. R08 22 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. 04-13-94 F:\UPDOC\11\2110\02322AGR.R08 23 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 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 24 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 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 25 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, 04-13-94 F:\UPOOC\11\2110\02322AGR.R08 26 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. 04-13-94 __ F:\WPOOC\11\2110\02322AGR.R08 27 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 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 28 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. 04-13-94 F:\UPOOC\11\2110\02322AGR.R08 29 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 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 30 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 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 31 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, 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 32 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) 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 33 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 04-13-94 F:\UPOOC\11\2110\02322AGR.R08 34 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. 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 35 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 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 36 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 04-13-94 F:\UPOOC\11\2110\02322AGR.R08 37 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. 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 38 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 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 39 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. 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 40 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 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 41 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 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 42 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 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 43 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 04-13-94 F:\WPOOC\11\2110\OZ322AGR.R08 44 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. 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 45 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: 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 46 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. 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 47 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 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 4° 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 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 49 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 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 50 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 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 51 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 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 52 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 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 53 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. 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 54 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 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 55 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; 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 56 (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. 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 57 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. 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 58 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 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 59 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 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 60 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 04-13-94 F:\UPOOC\11\2110\02322AGR.R08 61 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 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 62 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 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 63 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. 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 64 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. 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 65 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 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 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 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 67 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, 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 68 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 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 69 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 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 70 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. 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 /I 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 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 72 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 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 73 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; 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 74 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 04-13-94 F:\UPOOC\11\2110\02322AGR.R08 /5 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: 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 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 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 ' ' 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 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 78 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. 04-13-94 F:\UPOOC\11\2110\02322AGR.R08 79 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 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 80 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. 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 81 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. 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 82 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. 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 83 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 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 84 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. 04-13-94 F:\UPDOC\11\2110\02322AGR.R08 85 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 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 86 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. 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 87 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. 04-13-94 F:\UPDOC\11\2110\02322AGR.R08 88 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. 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 89 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 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 90 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 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 91 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 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 92 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 04-13-94 n_ F:\WPDOC\11\2110\02322AGR.R08 93 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, 04-13-94 F:\UPOOC\11\2110\02322AGR.R08 94 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. 04-13-94 F:\UPDOC\11\2110\02322AGR.R08 95 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, 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 96 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. 04-13-94 F:\UPOOC\11\2110\02322AGR.R08 97 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 04-13-94 F:\WPDOC\11\2110\OZ322AGR.R08 98 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 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 99 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 04-13-94 ^nn F:\WPOOC\11\2110\OZ32ZAGR.R08 100 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. 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 101 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. 04-13.94 F:\WPDOC\11\2110\02322AGR.ROa 102 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. 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 103 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 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 104 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. 04-13-94 F:\WPOOC\11\2110\OZ322AGR.R08 105 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. 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 106 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, 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 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 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 108 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. 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 109 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 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 110 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 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 111 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; 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 112 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. 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 H3 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 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 114 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 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 115 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, 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 116 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 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 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 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 118 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. 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 119 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 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 120 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 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 121 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. 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 122 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. 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 123 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. 04-13-94 F:\gPOOC\11\2110\02322AGR.R08 124 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 04-13-94 F:\UPDOC\11\2110\02322AGR.R08 125 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 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 126 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, 04-13-94 F:\UPOOC\11\2110\02322AGR.R08 127 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 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 128 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 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 129 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. 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 130 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 - 04-13-94 F:\UPDOC\11\2110\02322AGR.R08 131 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 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 132 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. 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 133 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 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 134 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. 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 135 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. 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 136 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 04-13-94 F:\UPDOC\11\2110\02322AGR.R08 137 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 04-13-94 F:\UPDOC\11\2110\02322AGR.R08 138 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. 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 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 04-13-94 F:\UPOOC\11\2110\02322AGR.R08 140 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. 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 141 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. 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 142 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 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 143 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 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 144 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 04-13-94 F:\UPDOC\11\2110\02322AGR.R08 145 (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 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 146 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 04-13-94 F:\WPOOC\11\2110\02322AGR.R08 147 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. 04-13-94 F:\WPDOC\11\2110\02322AGR.R08 148 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.