HomeMy WebLinkAbout1995-05-23; City Council; 13149; IMPLEMENTATION AGREEMENT FOR FIELDSTONE/RANCHO SANTA FE ROAD HABITAT CONSERVATION PLAN4
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e CITY OF CARLSBAD - AGEltDA 8 BILL
AB# 13, /"I 7 TITLE: IMPLEMENTATION AGREEMENT FOR DEPT.
FlELDSTONElRANCHO SANTA FE ROAD HABITAT 6.L MTG. 5 --&3 - / I CONSERVATION PLAN CITY A
DEPT. PLN CITY M
RECOMMENDED ACTION:
That the City Council ADOPT Resolution No. 95' I&!? , authorizing the Mayor tc
Implementation Agreement for the Fieldstone/Rancho Santa Fe Road Habitat Conserv
ITEM EXPLANATION:
The recommended action is the culmination of a series of actions that have taken place
four years relating to planning for wildlife conservation in the vicinity of Rancho Santa
specifically property owned by the Fieldstone Company. The recommended action wi
action that must be taken by the City to secure federal and state endangered species p'
property.
The federal and state permits will be based on the conservation described in
Conservation Plan (HCP), which is provided as an attachment to the lmplementatior
The Implementation Agreement is the vehicle for formal approval of the HCP, an(
incorporated in the agreement by reference. The Table of Contents of the lmplementatic
and the Executive Summary of the HCP are provided as Exhibit 2.
To briefly summarize the provisions of the HCP and Implementation Agreement, appro
acres of habitat would be conserved onsite. This conserved habitat land support
California gnatcatcher territories as well as a number of other sensitive species, sucl
manzanita. The conserved areas have been designed to maintain habitat connec
Carlsbad and to other important habitat areas southeasterly of Carlsbad. In addition
conservation, the plan calls for the acquisition and conservation of habitat land offsite,
of $150,000 to the City for the Habitat Management Plan, establish
managemenvmaintenance program for the conserved land, and $50,000 for indepeni
on the California gnatcatcher.
The City Council reviewed an earlier draft of the Implementation Agreement as part c
#12,746 (June 21, 1994). Since that time, there have been changes to two provisio
importance to the City. These are described in Exhibit 3. Briefly, these provisic
ensuring connectivity between Carlsbad and habitat lands to the southeast of Carlsbad,
of right of first refusal to the City to purchase portions of Fieldstone's developable la
funding for habitat land acquisition becomes available.
If the Council concurs with the staff recommendation, after the Mayor signs the In-
Agreement, it will be submitted to FWS and DFG for their execution and issuance of
Take Permit.
FISCAL IMPACT:
There is no fiscal impact associated with the recommended action.
d d ‘Page 2 of Agenda Bill @ 140. j 9 1 L.9 0
ENVIRONMENTAL IMPACT
The proposed project site is generally located in the southeast quadrant of the City, wi
of Local Facilities Management Zones 10 and 1 1. The direct, indirect, and cumulative ei
impacts from this project have been discussed in the Rancho Santa Fe Road Realignm
Grading Environmental Impact Report (FEIR 91-01), certified on May 19, 1992, and the
Master Environmental Impact Report (MEIR 93-01), dated March 1994. Staff prepared a
to analyze the potential environmental impacts of the project and determined that I
impacts over those addressed in FElR 91-01 and MElR 93-01 will occur, and therefoi
is in prior compliance with FElR 91-01 and MElR 93-01.
EXHIBITS
1. Resolution No. Cpj-128
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3.
4.
Table of Contents of Implementation Agreement and Executive Summary of HCF
Analysis of Recent Changes to the Implementation Agreement.
Implementation Agreement on file with City Clerk.
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RESOLUTION NO. 95-128
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIF(
AUTHORIZING THE MAYOR TO SIGN THE IMPLEMENTATION AGREEMEN‘ THE FlELDSTONE/RANCHO SANTA FE ROAD HABITAT CONSERVATION PL/
WHEREAS, the City Council of the City of Carlsbad did on the ??rd day of
, 1995, receive a staff report and recommendations regarding the docui
“Implementation Agreement Regarding the City of Carlsbad/Fieldstone/La Costa
Habitat Conservation Plan/Ongoing Multi-Species Plan”, hereinafter referred to as “A
and,
WHEREAS, the staff report recommends that the Mayor be authorized to sign the
and
WHEREAS, upon execution of the agreement by the United States Fish and Wild
and California Department of Fish and Game, permits will be issued by those ager
City and FieldstondLa Costa Associates to allow future development of the lands sc
in the agreement, including realignment and construction of Rancho Santa Fe Roac
WHEREAS, the City Council concurs with the staff recommendations and finc
appropriate and in the public interest to sign the agreement and to receive the permit
above; and
WHEREAS, the City Council has reviewed the Planning Director‘s issuance of
of Prior Environmental Compliance, indicating that the action of entering into the a
a Subsequent Project that has been addressed by previously certified environmental
and that the action will not entail any new impacts or additional mitigation measures
addressed in those previously certified environmental documents.
WHEREAS, the City Council makes the following findings with respect to the
the previously certified environmental documents:
1. The City Council finds that, based on the EIA Part II dated April 11,
Subsequent Project was described in the FElR 91-01 and MElR 93-01 as within their !
that there will be no additional significant effect, not analyzed therein; AND that
additional mitigation measures or alternatives are required; AND that therefore this
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Project is within the scope of the prior EIRs, and no new environmental document
Resources Code 21801 findings are required.
2. The City Council finds that all feasible mitigation measures or project i
identified in FElR 91-01 and MEIR 93-01 which are appropriate to this Subsequent PI
been incorporated into this Subsequent Project.
NOW, THEREFORE, BE IT HEREBY RESOLVED by the City Council of the City o
California as follows:
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That the above recitations and findings are true and correct.
That the Mayor is authorized to sign the agreement.
That staff is authorized to submit the signed agreement to the United Statt
Wildlife Service and California Department of Fish and Game for final execut
agreement (on file with the City Clerk’s Office) and issuance of permits.
PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council
MAY , 1995, by tht of Carlsbad, California, held on the 23rd day of
vote, to wit:
AYES: Council Members Lewis, Nygaard, Kulchin, Finnila, Hall
NOES: None
ABSENT: None
ATTEST:
RANZ, City Clerk
sistant City Clerk
(SEAL)
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tAHlBlI L
1 I Summary
e e Carlsbad-FLCA HCPIOMSP
Summary
A. Introduction
This Habitat Conservation Plan/Ongoing Multi-Species Plan (HCP/OMSP) is the
culmination of a threeyear collaborative planning process undertaken by the
City of Carlsbad (City) and Fieldstone/La Costa Associates (FLCA) in consultation
with the U.S. Fish and Wildlife Service (USFWS) and California Department of
Fish and Game (CDFG). It covers 1,940.2 acres of land essentially surrounded
by existing urban uses in the southeast quadrant of Carlsbad (Figure S-l),
conserving habitat for plant and wildlife species and mitigating the impacts of
anticipated urbanization.
Initiated prior to enactment of California's Natural Communities Conservation
Planning (NCCP) Act, the HCP/OMSP technically is exempt from the NCCP
program; however, it is consistent with NCCP Guidelines and with two
planning efforts that are enrolled in the NCCP program as OMSPs - the City's
Habitat Management Plan (HMP) and the North County Multiple Habitat
Conservation Program (MHCP). The plan fulfills NCCP goals and strengthens
the HMP and MHCP efforts by:
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
biological resources while allowing necessary economic development and
anticipated urbanization to proceed.
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interests through a cooperative effort that will sustain and improve sensitive
In this way, the HCP/OMSP constitutes a completed aspect of NCCP for the City
and subregion.
Consistent with the federal and state Endangered Species Acts (ESAs) as well as
the NCCP program, the HCP/OMSP addresses the needs of 66 listed and
unlisted species associated with habitats in the plan area. It focuses on a
number of animal species that are representative of the diversity and sensitivity
of resources in the City and region, including the federally-listed coastal
California gnatcatcher, and provides protection for nearly 80 percent of all
sensitive plant populations in the plan area. Utilizing the best available
scientific information, the HCP/OMSP meets the requirements of the ESAs by:
Minimizing and mitigating anticipated impacts on the species of concern to
the maximum extent practicable; and
3-28-94 Revised Draft s-1
I f Summary e d Carlsbad-FLCA HcvoMsP
Conserving habitat, habitat linkages, corridors, and buffers in a way that,
together with the other impact minimization and mitigation measures,
ensures that the likelihood of the species' survival and recovery will not be
appreciably reduced.
Also in accordance with the ESAs, the plan assures adequate funding for
implementation of the conservation and mitigation measures and includes
procedures for responding to unforeseen circumstances.
The HCPIOMSP also is consistent with the Carlsbad General Plan, providing for
the conservation of sensitive resources and the development of land and
facilities in accordance with the City's land use, circulation, open space, and
growth management plans as well as the proposed HMP.
B. Planning Process and Purpose
Preparation of the HCP/OMSP began in 1989 and evolved into a unique
planning process for a project specific plan, characterized by a consideration of
range-wide conservation issues, open public participation, and candid
negotiations with conservation interests and federal, state, and local agencies.
To ensure continued progress during the process, the planning participants
signed a Memorandum of Agreement in 1991 regarding development of a plan
and an Initial Points of Consensus document in 1992 establishing the plan's
fundamental tenets.
The primary purpose of the planning process and this HCP/OMSP is to provide
for the conservation of wildlife and its habitat in the context of anticipated
urbanization. The HCP/OMSP establishes the basis for government planning
and regulation as well as assurances to the landowners and others that the plan
will be implemented and that projects and activities in the plan area can
proceed without further wildlife mitigation. Specifically, the plan provides the
basis for:
1. Issuance by USFWS of a Section 10(a) permit, USFWS authorizations under
the gnatcatcher 4(d) rule, and USFWS consultations (internal as well as with
other agencies such as the US. Army Corps of Engineers) under Section 7 of
the federal ESA;
2. Issuance by CDFG of a Section 2081 permit under the California ESA and a
Section 2835 permit under the NCCP Act;
3. Issuance of permits under the Migratory Bird Treaty Act;
4. Consummation of an implementation agreement, with USFWS, CDFG, the
City, and FLCA as parties, implementing the plan and providing the parties
with assurances; and
5, Planning and development activities by the City, FLCA, and other
landowners in the plan area.
s-2 Revised Draft 3-28-94
I 0 e
NOTE
Pages 3 and 4 of the Fieldstone Habitat Conservation Plan consist of a color map of
the Plan Area. The map could not be reproduced in black and white and therefore
has been omitted from the Executive Summary which appears in the City Council
Agenda Packet. To view the color map, please see the full Habitat Conservation Plai
document which is on file in the City Clerks Office.
Summary 0 e ' Carlsbad-FL CA HCPIOMS P
C. Plan Area Profile
The plan area for the HCP/OMSP consists of two sets of lands (see Figure 51):
1,278.2 acres identified as "Rancheros-Southeast 11," which includes 846.2
acres that are the project area for the Rancho Santa Fe Road realignment,
347 acres that are the Rancheros component of FLCA's La Costa Master
Plan, and 85 acres in San Marcos Creek; and
662.0 acres identified as "Northwest," another component of the La Costa
Master Plan.
Combined, the lands account for 13 percent of all undeveloped land remaining
in the City. All of the land is private property, and 95 percent (1,844.4 acres) is
owned by FLCA. The other five percent includes 81 acres owned by MAG
Properties and 14.8 acres of miscellaneous private ownerships within proposed
right-of-way easements for the realigned Rancho Santa Fe Road. Except for
242.6 acres, all of the lands are currently designated in the General Plan for
residential or commercial development.
The biological significance of the lands stems from their location in relation to
other resources and their inherent values. Rancheros-Southeast II forms the
western tip of the largest, contiguous stretch of coastal sage scrub and natural
open space in northern San Diego County and, by virtue of that connection, is
the primary link between the City's natural communities and the larger regional
ecosystem. Northwest is less directly attached to the regional ecosystem but
supports a mix of habitats and species representative of the City's and region's
biodiversity.
Six habitat types occur within the 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 S-1). 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 area.
The habitats support hundreds of different plant and wildlife species, including
the 66 that have been selected as "species of concern" for conservation planning
purposes. The 66 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 in California;
7. On the list of target species for the HMP and North County MHCP; or
8. On the list of "other sensitive species" for the HMP.
3-28-94 Revised Draft s-5
t Summary 0 e Carlsbad-FLCA HCPIOMSP
Table S-1
Habitat Types in the Plan Area
(acres)
Based on extensive surveys conducted over a two-year period, 36 of the 66
species of concern are known to occur in one or both plan area components;
the other 30 species are closely associated with habitats in the plan area and, foi
purposes of this plan, have been treated as potentially occurring. Table S-2 lists
the species of concern under the headings of "observed" and "potentially
occurring"; it also indicates their primary habitat association and rangewide
distribution.
D. Habitat ,Conservation Strategy
and Impact Analysis
Based on an understanding of both the biological and land use issues to bc
reconciled, the City and FLCA developed a onsite habitat conservation strateg)
that is the foundation of this HCP/OMSP. Further, in accordance with the ESA!
and NCCP Guidelines, the City and FLCA considered the potential effects of thf
strategy on the species of concern before proceeding with final planning. Fo
purposes of the impact analysis, all species of concern were treated as listec
species. "Take" as defined in the ESAs was calculated primarily based on tht
occurrence of habitat for each species in areas designated for development. AI
habitat suitable for a species of concern was assumed to be occupied by tha
species, and all habitat not designated as being conserved was treated a!
"taken." Also in accordance with ESA and NCCP requirements, alternatives tc
the taking were considered.
S-6 Revised Draft 3-28-9,
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ID # Species Name and listing Status Habitat Association and Rangewide Distribution
Observed Species of Concern (N = 36)
Ashy spikemoss
CNPS4
California adder's-tongue
C~C, CNPS4 northwestern Baja California.
California adophia
A-3 Adolphia californica
CNPSZ, NCCP, OSS
Del Mar manzanita
FPE*, CNPS1 6, T Colonet.
Engelmann oak
CNPS4, OSS California.
Nuttall's scrub oak
CNPS1 B, OSS
A-I Selaginella cinerascens Occurs on flat mesas in open CSS and CHP. Range
includes Orange County to northern Baja California.
Occurs in grassy areas and vernal pools. Range
A-2 Ophioglossum californicurn extends from northern California counties into
Occurs in CSS and CHP in clay soils on dry coastal
and foothill slopes below 1000 feet. Range includes
San Diego County to Baja California.
Occurs in SMaC in areas with marine sandstone.
Range includes coastal San Diego County to Cab0
Occurs in OW, EW, and SMaC. Range extends from
Los Angeles County foothills to Sierra Juarez in Baja
Occurs in CHP and CSS in sandy soils and sandstone.
Range extends from coastal Santa Barbara County to
northwestern Baja California.
~-4 Arctostaphylos glandulosa ssp. crassifolia
A-5 Quercus engelrnannii
A-6 Quercus dumosa
Orcutt's brodiaea Occurs along ephemeral streams and vernal pools,
A-7 Brodiaea orcuttri Range extends from Riverside and San Bernardino
C2*, CNPSl B, T
Palmer's grapplinghook
CNPSZ, OSS
San Diego County viguiera
CNPS4, NCCP
San Diego golden star
C2*, CNPSl B, T
San Diego marsh elder
C2, CNPSZ, NCCP, OSS
Southwestern spiny rush
Iunctus actus var. leopoldii
CNPS4, OSS central Baja California.
St icky-leaved I iveforever
C1*, CNPSl B, NCCP, OSS
Summer holly
C1, CNPSlB, T California.
T h read-leaved brod iaea
C1*, SE, CNPSl B, T
Counties through San Diego County into Baja Calif.
Occurs in CHP, CSS, and G. Range includes
A-8 Harpagonella palmeri southern California from Los Angeles County
southward, Arizona, and northern Baja Calif.
Occurs in CSS. Range includes coastal San Diego
County to central Baja California.
Occurs in G and CSS with clay soils. Range includes
coastal San Diego County to extreme northwest of
Baja California.
Occurs in RS and SM. Range includes coastal San
Diego County to central Baja California.
Occurs in FWM, SM, and RW. Range extends from
San Luis Obispo and San Bernardino Counties to
Occurs in CSS and CHP of bluffs and rocky cliffs.
A-13 Dudleya viscida Range includes southern Orange County to central
San Diego County.
Occurs in CHP and SMaC. Range includes coastal
Orange and San Diego Counties into northwest Baja
Occurs in G and vernal pools with clay soils. Range
includes coastal San Diego County to central Baja
California.
~-9 Viguiera laciniata
A-i 0 Muilla clevelandii
A-1 1 Iva hayesiana
A-1 2
~-14 Cornarostaphylis diversifolia ssp. diversifolia
~-15 Brodiaea filifolia
ID #
A-16
A-1 7
A-1 8
A-1 9
A-20
A-2 1
A-22
A-23
A-24
A-2s
A-26
A-27
A-213
A-29
A-30
Species Name and Listing Status Habitat Association and Rangewide Distribution
Wart-stemmed ceanothus
Ceanothus verrucosus
C2, CNPSZ, T
Western dichondra
Dichondra occidentalis
C~C, CNPS4, NCCP, OSS
Western spadefoot toad
Spea harnrnondii
CSC, NCCP, T California.
Coastal rosy boa
Lichanura trivirgata rosafusca
C2, CSC, NCCP, OSS
Coastal western whiptail
Cnernidophorus tigris rnultiscutatus
C2, CSC, NCCP, OSS California.
Northern red diamond rattlesnake
C2, CSC, NCCP, OSS Calfiornia.
Orangethroated whiptail
Cnernrdophorus hyperythrus beldingi
C2, CSC, NCCP, T
San Diego horned lizard
Phrynosoma coronaturn blainvillei
C2, CSC, NCCP, T
Bell's sage sparrow
Arnphispiza belli belli
C2, CSC, MBTA, NCCP, OSS
Burrowing owl
Speotyto cunicularia
CSC, MBTA, T
Coastal California gnatcatcher
Polioptila californica californica FT, CSC, MBTA, NCCP, T
Accipiter cooperi
CSC, MBTA, T
Loggerhead shrike
Lanius ludovicianus
C2, CSC, MBTA, NCCP, OSS
Northern harrier
Circus cyaneus
CSC, MBTA, T
Southern California rufoustrowned sparrow
Airnophila ruficeps canescens
C2, CSC, MBTA, NCCP, T
Occurs in SMaC and CHP. Range includes coastal
San Diego County to central Baja California.
Occurs in underston/ of CHP and CSS. Range
extends from Marin and Sonoma Counties to San
Miguel island and Baja California.
Occurs in CSS, CHP, and G. Range extends from
north central California to northwestern Baja
Occurs in CSS and CHP with rocky substrates.
Range extends from Los Angeles County to northwest
Baja California.
Occurs in open CSS, CHP, and woodlands. Range
extends from Ventura County to south central Baja
Occurs in rocky CSS, CHP, other scrub, and cactus.
Crotalus ruber ruber Range includes southern California to northern Baja
Occurs in CSS, CHP, RW, weedy areas, and washes.
Range includes southern Orange and San Bernardino
Counties to south central Baja California.
Occurs in CSS, CHP, and OW. Range includes Santa
Barbara County to northwest Baja California.
Occurs in CSS, CHP, juniper woodland, and alluvial
fan scub. Range includes California and northern
Baja Calif.
Occurs in G. Range includes western United States,
Canada, and Mexico.
Occurs in CSS. Range includes Los Angeles, Orange,
western Riverside, and San Diego Counties into Baja
Calif.
Cooper's hawk Occurs in RS, RW, and OW near foraging areas.
Range includes continental U.S., excluding Alaska
and parts of Montana and the Dakotas.
Occurs in G, CSS, and disturbed habitat. Range
includes much of North America; winters south to
Central America.
Occurs in FWM, SM, G, CSS, and agricultural fields.
Winters and migrates throughout California.
Occurs in CSS and mixed CSS and G. Range
includes Santa Barbara County to northwestern Baja
California.
ID #
A-3 1
A-32
A-33
A-34
A-35
A-36
Species Name and listing Status Habitat Association and Rangewide Distribution
Breeds in FWM, forages in G and agricultural lands.
Range extends from southern Oregon to northern
Baja California.
Occurs in RW and RS. Range includes most of North
America; breeds in southern California in spring and
Occurs in RW and RS. Range includes most of North
America; breeds in southern California in spring and
Occurs in CSS, CHP, and open weedy areas. Range
includes parts of Los Angeles, Orange, Riverside, Sari
Bernardino, and San Diego Counties.
Occurs in CSS, C, and disturbed habitat. Range
includes coastal slope of southem California from
Santa Barbara County into northwest Baja Calif.
Occurs in rocky areas and CHP and CSS with cactus.
Range includes coastal slope of southern California
from San Luis Obispo County to northwest Baja Calif.
Tricolored blackbird
Agelaius tricolor
C2, CSC, MBTA, NCCP, T
Ye1 low-breasted chat
lcterra virens
CSC, MBTA, OSS summer.
Yellow warbler
Dendroica petechia brewsteri
CSC, MBTA, OSS summer.
Northwestern San Diego pocket mouse
Chaetodipus fallax fallax
C2, CSC, NCCP, T
San Diego black-tailed jackrabbit
lepus californicus bennettii
C2, CSC, NCCP, OSS
San Diego desert woodrat
Neotorna lepida interrnedia
c2, csc, oss
Potentially Occurring Species of Concern (N = 30)
Blochman's dudleya
CNPS1 E, NCCP, OSS
C I iff spurge
6-2 Euphorbia rnisera
CNPSZ, NCCP, OSS
Coast barrel cactus
C2*, CNPS2, NCCP, OSS
Del Mar sand aster
FPT, CNPS 1 B, NCCP, T
6-1 Dudleya blochmaniae ssp. blochrnaniae
6-3 Ferocacrus viridescens
~-4 Corethrogyne filaginifolia var. linfolia
Encinitas baccharis
8-5 Baccharis vanessae
FPE, SE, CNPSl 6, T
Orcutt's hazardia
Orcutt's spineflower
FPE*, SE, CNPSl 8, NCCP
San Diego ambrosia
C2*, CNPS1 6, NCCP
San Diego sagewort
CNPS2, NCCP, OSS
6-7 Chorizanthe orcuttiana
6-8 Ambrosia pumila
6-9 Artemisia palmer;
Occurs atop coastal bluffs in CSS. Range includes
coastal slope of southern California from San Luis
Obispo County to northwest Baja Calif.
Occurs on coastal bluffs in CSS. Range includes
Orange, Riverside, and San Diego Counties to central
Baja California.
Occurs on dry slopes with CSS and CHP. Range
includes coastal San Diego County, northwest Baja
California, and foothills of Sierra Juarez.
Occurs in sandy, disturbed coastal areas, usually in
SMaC. Endemic to central, coastal San Diego county.
Occurs in SMaC and CHP. Endemic to northwest
and northtentral San Diego County.
Occurs on coastal slopes in CHP. Endemic to
I
Occurs in SMaC. Endemic to San Diego County.
Occurs in coastal C and disturbed habitat. Range
includes coastal San Diego County to northwest Baja
California.
Occurs in drainages with RS, CSS, and CHP. Range
includes coastal San Diego County to northwest Baja
Cal ifornia.
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ID # Species Name and listing Status Habitat Association and Rangewide Distribution
Occurs in C and vernal pools on clay soils. Range
includes coastal San Diego County to coastal area
above Ensenada and Sierra Juarez mountains.
Occurs in RW, RS, and OW with perennial water
source. Range includes Orange and San Diego
Occurs in CSS and CHP; larval foodplant is
San Diego thornmint
C1*, SE, CNPS1 6, NCCP, T
Harbison's dun skipper
C2, T Counties.
Hermes copper
C2*, oss northern Baja Calif.
Quino checkerspot
6-1 3 Euphydryas editha quino
c1*, oss
California red-legged frog - B-14 Rana aurora draytonii
FPE, CSC, OSS California.
Coast patch-nosed snake
B-15 Salvadora hexalepis vrrgultea
C2, CSC, NCCP, OSS
Coronado skink
C2, CSC, NCCP, OSS
San Diego banded gecko
C2, CSC, NCCP, OSS
6-1 o Acanthornintha ilicifolia
6-1 1 €upbyes vestris harbinsoni
B-1 2 Lycaena hermes buckthorn. Range includes San Diego Co. to
Occurs in CSS, G, and VP; larval foodplant is
plantain. Range includes Orange, Riverside, and San
Diego Counties to coastal central Baja Calif.
Occurs in ponds, marshes, and pools. Range
includes northern California to northwestern Baja
Occurs mainly in CHP but also in mixed CSS and G.
Range includes Santa Barbara County into northwest
Baja California.
Occurs in G, CSS, open CHP, OW, and pine forests.
Range includes Los Angeles County into northwest
Baja California plus several islands.
Occurs in CHP and CSS with rocky outcrops. Range
extends from San Gabriel Mountains to northwest
Baja California and Cedros Island.
southwest San Bernardino County to northwest Baja
Occurs along washes, beaches, alluvial fans and in
CSS and CHP. Range includes San Francisco to
6-1 6 Eurneces skiltonianus interparietalis
6-1 7 Coleonyx variegatus abbotti
San Diego ringneck snake Occurs in OW, G, CHP, and CSS. Range includes
B-1 8 Diadophis punctatus sirnilis
c2, csc, oss California.
Silvery legless lizard
csc, oss northwest Baja California.
Southwestern pond turtle
C1*, CSC, NCCP, OSS
Two-striped garter snake
B-21 Tbarnnophis hamrnondii
c2, csc, oss
California homed lark
6-22 Erernophila alpestris actia
C2, CSC, MBTA, NCCP, OSS
Least Bell's vireo
B-19 Anniella nigra argentea
Occurs in FWM, creeks, and ponds. Range extends
from Monterey County to northwest Baja California.
Occurs primary along permanent creeks and streams,
also in VP and CHP. Range includes Monterey
County to northwest Baja California.
Occurs in sandy beaches, G, and agricultural lands.
Range includes coastal slopes and lowlands from
Sonoma County to northern Baja California.
Occurs in lowland RW. Range includes southern
California to northwest Baja California.
Occurs in CSS, cactus patches, and thorny thickets.
Range includes southern Orange and San Diego
Counties into northwest Baja California.
6-20 Clernrnys rnarmorata pallida
8-23 Vireo bellii pusillus FE, SE, MBTA, T
San Diego cactus wren
C2, CSC, NCCP, T
6-24 Carnpylorhynchus brunneicapillus couesi
10 #
13-25
B-26
B-27
B-28
B-29
B-30
Species Name and Listing Status HabiPat Association and Rangewide Distribution
Southwestern willow flycatcher
Empidonax traillii extimus
FPE, SE, FSS, MBTA, T
California mastiff bat
Eumops perotis californicus
C2, CSC, T
Dulzura California pocket mouse
Chaetodipus californicus femoralis
C2, CSC, T Baja California.
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 western U.S.
Occurs in RW and RS. Range includes southwestern
U.S. into northwest Mexico.
Roosts in rock crevices, outcrops, buildings; forages
in CHP and OW. Range includes Central California,
western Texas, and northern Mexico.
Occurs in CHP, mulefat scrub, and disturbed areas.
Range extends from Santa Margarita River to northern
Occurs in CHP, CSS, and G with sandy substrate.
Range limited to coast of southern California; only
eight localities known.
Occurs in G and CSS. Range extends from northern
Los Angeles County to northwestern Baja California.
Roosts in tunnels, caves, and buildings; forages in
OW, G, and other habitats. Range includes most of
e'
Carlsbad-FLCA HCPlO MSP
0
Summary
Table S-2 (continued)
HCP/OMSP Species of Concern
ID Codes
A-
B-
status codes c1 c2
c3c
CN PS
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.
Category 1 candidate for federal listing
Category 2 candidate for federal listing
Category 3c candidate for federal listing
Listed by the California Native Plant Society as:
(1 6) rare or endangered in California and elsewhere
(2) rare or endangered in California and more common elsewhere
(4) plants of limited distribution
Identified by CDFC as a species of special concern in California
Listed as endangered under the federal ESA
Emergency listed as endangered under the federal €SA
Proposed for federal listing as endangered
identified by federal agencies as a sensitive species
Listed as threatened under the federal €SA
Protected by the Migratory Bird Treaty Act
On the list of sensitive species for the NCCP program
"Other Sensitive Species" identified in draft Carlsbad HMP
Listed as threatened under the California ESA
Target species for Carlsbad HMP and North County MHCP
groups who filed suit regarding the timely listing of C1 and C2 species.
csc
FE
FEE
FPE
FSS
CT
MBTA
NCCP oss
ST
T
FPT Proposed for federal listing as threatened
* On the list of species covered by a settlement agreement between USFWS and environmental
Habitat Codes
AFS Alluvial Fan Scrub
CHP css Coastal Sage Scrub
FWM Freshwater Marsh
C Grassland, native and non-native
IW Juniper Woodland
M FS Mulefat Scrub ow Oak Woodland
RW Riparian Woodland
SMaC Southern Maritime Chapaml
VP Vernal Pools
Chaparral types, excluding Southern Maritime Chaparral
RS Riparian Scrub
s12 Revised Draft 3-28-94
Summary
e e
Carlsbad-FLCA HCPIOMSP
1 Configuration of Conserved Habitat
The configuration of 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 others are provided with certainty regarding which
areas will be permanently conserved and which will not.
A total of 645.1 acres has been designated conserved habitat in the plan area:
521.41 acres within Rancheros-Southeast II and 123.69 acres in Northwest
(Table S-3). The specific configurations of onsite conserved habitat 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.
Table S-3
Conserved Habitat in the Plan Area Components
(acres)
a. Rancheros-Southeast I1
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:
3-28-94 Revised Draft s-13
Carlsbad-FLCA HCPIOIMSP
a 0
Summary
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 with 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.
As shown on Figure 5-2, the proposed configuration within Southeast 11
preserves a corridor that is 1,000 feet wide at its narrowest point and widens tc
approximately 1,800 feet in width at the eastern end where it crosses Ranchc
Santa Fe Road. The corridor retains linkages with designated conserved habitai
in San Marcos Creek and Rancheros and linkages with natural open space
outside the plan area.
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 "microecosystem" captured by the configuration. In this case, the
conserved area forms a corridor that is at least 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 reserve.
The primary consideration in Rancheros was the need to reconcile conservation
originally proposed in the La Costa Master Plan, Rancheros was designated for
large lot ranchettestyle 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 0'
the site. Priority was given to minimizing edge effects and conserving two
thirds of the gnatcatcher pairs onsite (10 of Q5). ThZ resulting configuratior
preserves the highest density occupied gnatcatcher habitat in a contiguous banc
of primarily sage scrub habitat that adjoins San Marcos Creek and is over 0.5
mile wide.
and land use priorities for lands with high biological and development value. As
b. Northwest
Conserved habitat in Northwest includes 123.69 acres selected to preserve plan1
species of concern and maintain connectivity through the site (Figure S3). Foul
primary considerations affected the design of conserved habitat:
1, The presence and relative abundance of rare plants associated with nativf
grassland (thread-leaved brodiaea, Palmer's grapplinghook) and southerr
maritime chaparral (Del Mar manzanita, summer holly, wart-stemmec
ceanothus, Nuttall's scrub oak);
2. The relatively fragmented nature of the sage scrub (by comparison wit!
Rancheros-Southeast II) but high number of gnatcatchers;
3. The bifurcation of the natural habitats by the La Costa Golf Course; and
S-14 Revised Draft 3-28-9
...**)’ r ’.*
-I----- *-E-!*
CONSERVED HABITAT
MISTING ROADWAY
FUTURE ROADWAY \.* .._..-..-.*---
I Prepared By: Hofman Planning Associates
Figure S-2 Schematic of Conserved H;
on Rancheros = Southe
..-..-..-.
LEGEND
CONSERVED HABITAT
EXISTING ROADWAY
FUTURE ROADWAY
Prepared By: Hofrnan Planning Associates
Figure S=3 Schematic of Conserved Ha
in North
S-16
Summary 9 w ' Carlsbad-FLCA HCPIOMSP
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, the onsite conserved habitat preserves a majority of the sensitive
plant species. It also provides connections to and through the site from south to
north and to the east (see Figures S-3). In addition, onsite restoration of about
11 acres of sage scrub has been proposed for a portion of conserved habitat that
intersects a utility easement that 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.
Offsite conservation will be used to:
1. Provide replacement habitat for the sage scrub that ultimately will be
removed from Northwest; and
2. 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 CDFC 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.
2. Impact Analysis
In connection with designating onsite conserved habitat, the City and FLCA
considered the beneficial and adverse effects on species of concern that would
likely result from conserving some areas of habitat and allowing development to
proceed in others. As noted, all species of concern were treated as listed
species, and all suitable habitat for each species was considered "taken" if not
designated as conserved habitat. This approach was used to ensure that habitat
impacts were not underestimated, to fulfill ESA requirements that "take" of
species be estimated, and to identify appropriate impact minimization and
mitigation measures. Also in accordance with the ESA and NCCP Guidelines,
alternatives to the taking were considered.
a.
Anticipated impacts to species of concern are summarized in Table 5-4 in terms
of habitat conserved and habitat assumed taken and based on the primary
habitat associations of the species of concern (e.g., impacts to species found
separate calculation of total conserved habitat that assumes acquisition of 240
acres of offsite sage scrub also is provided.
Impacts to Species of Concern
only in sage scrub, impacts to species found in more than one habitat type). A
3-28-94 Revised Draft s-17
n Summary 0 Carlsbad-FLCA HCPIOMSF
Table S-4
Habitat Conserved and Assumed "Taken"
by Primary Habitat Associations of the Species of Concern
(ac res)
In addition to the habitat-based impacts, the following points can be natec
regarding the conservation of species given priority in the planning process:
0 Up to 18 pair of coastal California gnatcathers will be conserved onsite ir
Rancheros-Southeast II, and an undetermined number of pairs on up to 24C
acres will be conserved offsite;
At least 795 Del Mar manzanita individuals and approximately 5,80C
thread-leaved brodiaea individuals will be conserved on Northwest.
All of the sticky-leaved liveforever will be conserved in the San Marcos
Creek corridor;
A significant portion of habitat suitable for the orange-throated whiptail and
San Diego horned lizard will be conserved on Rancheros-Southeast 11, and
the two reptiles will also likely benefit from the offsite conserved habitat;
and
Ripariandependent bird species such as the yellow-breasted chat, yellow
warbler, and least Bell's vireo will benefit from the preservation of well ovei
95 percent of the onsite riparian habitats; sensitive plant species such as
southwestern spiny rush and San Diego marsh elder also will be preservec
onsite.
0
0
S-18 Revised Draft 3-28-9'
Summary
0 * ' Carlsbad-FLCA HCPIOMSP
6. Alternatives to the Taking
Six alternatives to the anticipated taking were considered and ultimately
eliminated from further consideration:
0 Complete avoidance of take of listed species;
No take of coastal California gnatcatchers;
Take only within the Rancho Santa Fe Road project area;
Delay of take in the plan area pending completion of the HMP;
An offsite mitigation strategy with unlimited take in the plan area; and
Reconfiguration of onsite conserved habitat and development areas.
E. Conservation Program
and Mitigation Measures
The conservation program and mitigation measures include those actions
necessary to:
0 Conserve 645.1 acres of habitat in the plan area and up to an additional
240 acres in offsite locations;
Provide for ongoing management of the conserved habitat;
Minimize and mitigate the impacts expected in the plan area; and 0
0 Ensure implementation of the plan and secure long-term (30-year)
authorizations and assurances for projects and activities in the plan area.
1 Habitat Conservation
Implementation of the HCPIOMSP will conserve up to 885.1 acres of habitat for
the species of concern: 645.1 acres within Rancheros-Southeast II and
Northwest and up to 240 acres in offsite locations to be selected in consultation
with USFWS and CDFG. All of the onsite conserved habitat is in FLCA's
ownership.
Onsite consewation will occur in the areas shown on Figures S-2 and S-3 and as
described in the legal agreements that will accompany this plan. Offsite
conservation will occur in conjunction with development within Northwest and
will consist of acquisition by FLCA of up to 240 acres of coastal sage scrub in
locations acceptable to USFWS and CDFG, with at least 120 acres in locations
that will strengthen the habitat linkage with the regional coastal sage community
that extends into the San Dieguito and San Pasqual River Valley.
In accordance with state guidelines for 2081 agreements (see Appendices),
FLCA will provide an irrevocable offer to convey fee interest or a conservation
easement for the conserved habitat to a conservancy established or designated
for purposes of the Carlsbad HMP, to CDFG, or to another entity approved by
USFWS and CDFG. Conservation easements or fee interest also will be
conveyed for the offsite mitigation lands.
3-28-94 Revised Draft s-19
Carlsbad-FICA HCPIOMSP X Summary a 0
2. Habitat Management
Two types of habitat management will be provided under the plan:
Long-term, ongoing management of conserved habitat by an entity
designated for that purpose under the terms of this HCP/OMSP, the HMP,
or North County MHCP.
Interim management of conserved habitat by FLCA; and
It is anticipated that the entity responsible for long-term management 01
conserved habitat and the entity to which the conservation easements or fee
interest is conveyed will be a conservancy established for purposes oi
implementing the HMP. However, alternative arrangements also have beer
identified in the event that the HMP is substantially delayed or not completed
Such alternatives include delegation of management responsibilities to CDFG
The Nature Conservancy, or (as a last resort) a homeowners association. The
arrangement actually made will be subject to USFWS and CDFG concurrence.
a. lnterim Habitat Management
FLCA will 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, USFWS, and CDFG. interim
management activities will consist of:
Maintaining existing access controls;
-
Clean-up of conserved habitat areas where unauthorized trash dumping has
occurred; and
implementation of project-specific impact minimization and mitigation
measures (see below).
FLCA will prepare an interim management plan that describes the activities tc
be performed and, until fee interest is conveyed or the managemeni
responsibilities have been delegated, will provide annual updates to the plan as
necessary. FLCA also will provide information on the implementation of
interim management measures in the annual reports on overall plan
implementation that will be prepared by FLCA and the City for USFWS and
CDFG review.
b. Ongoing Habitat Management
Ongoing management of conserved habitat will be guided by annual plans
prepared by the HMP conservancy or other designated entity in consultation
with a management advisory committee. The committee will be composed oi
representatives of USFWS, CDFG, the City, FLCA, and the management entity or
entities.
s-20 Revised Draft 3-28-94
Summary
0 a
Carlsbad-FLCA HCPIOMSP
e. Funding of Habitat Management
Funding of interim management activities will be FLCA's responsibility.
Funding of long-term management will 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 $50.00 per residential unit per
year would be assessed on each development unit within the plan area.
3. Impact Minimization
and Mitigation Measures
In addition to the impact minimization acheived through preserve design, the
HCP/OMPS 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
will include but not be limited to project-specific impact avoidance and
minimization, impact phasing and project design, and supplemental mitigation
measures.
a.
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 will pertain to individual projects and
activities that would affect conserved habitat.
1. Nest site protection. No clearing or grading operations will be allowed in
habitat occupied by the gnatcatcher during its breeding season (February 15
to July 31). This measure also will protect other nesting species of concern.
Prior to July 31, clearing may occur if it is determined that the birds 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 are nesting in any trees scheduled for removal, the
trees will be avoided until after the nesting season. Additionally, where
feasible, clearing activities within 200 feet of raptor nest sites will be
avoided during the nesting season.
2. Access control. Prior to commencement of clearing or grading activities,
access barriers to conserved habitat will be established at key entry points.
The boundaries of conserved habitat immediately adjacent to a grading area
will be flagged by a biologist, and a fence will be installed to prevent
disturbance by construction vehicles. This fencing may be removed upon
completion of all construction activities and/or replacement with permanent
also will be taken to ensure that the construction crew is informed of the
sensitivity of conserved habitat.
Project-Specific Impact A voidance and Minimization
fencing to protect conserved habitat. Reasonable, appropriate measures
3-28-94 Revised Draft s-2 1
* Summary 0 @ Carlsbad-f LCA HCPIOMSP
3. 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 will be limited to the non-breeding season (August 1 through
February 15) unless six foot temporary noise berms are used to reduce noise
levels.
4. Storage and staging areas. No temporary storage or stockpiling of
construction materials will be allowed within conserved habitat, and all
staging areas for equipment and materials (especially rock crushing
equipment) will be located as far from conserved habitat as possible.
Staging areas and construction sites will 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 will be provided on the site
during construction.
5. Monitoring. During grading and construction adjacent to conserved
habitat, a biologist will monitor the adjacent habitat for excessive
accumulations of dust or other disturbance. Erosion control devices also
will 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 will be taken immediately.
6. Unavoidable disturbances of conserved habitat. Disturbance of conserved
habitat will be avoided to the maximum extent possible. However, where
disturbance is unavoidable and has been authorized, it will be mitigated by
restoration of the affected sites. Revegetation plans will be prepared for the
approval of the City prior to such disturbances occurring. In addition, the
location and installation of utilities will be planned cooperatively with the
City, USFWS, and CDFG 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 (dl remedial
grading for structural purposes, such as easements, buttresses, and crib
walls.
7. Fuel management zones. Fuel management zones separating conserved
habitat from adjacent development will be designed to minimize impacts to
native vegetation. The final location of the zones in relation to the interface
of development of conserved habitat will be defined at the tentative map
stage of planning. Measures to minimize or further reduce impacts to
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.
vegetation include: (a) removal of high fuel species, irrigation, and selective
s-2 2 Revised Draft 3-28-94
Summary
e 0 ' Carisbad-FL CA H CPIO MSP I $1
8. Lighting. Lighting within new development projects adjacent to conserved
habitat will be selectively placed, shielded, and directed away from
conserved habitat. In addition, lighting from homes abutting conserved
habitat will be screened by planting vegetation, and large spotlight-vpe
backyard lighting directed into conserved habitat will be prohibited.
9. Landscaping. Invasive species such as giant reed and pampas grass will not
be used in landscaped area directly adjacent to conserved habitat. A list of
species that should not be used in landscaping will be provided to home
buyers. Additionally, these species will be identified in the CC&Rs of the
homeowners association as plants to be avoided in landscaping.
10. Public information program. Homeowners, homeowner associations, and
the interested public will be informed of ways to avoid impacts to the
conserved resources through a public information program developed in
cooperation with the City. The program will 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.
6. Impact Phasing and Project Design Measures
Impact phasing and project design measures pertain to projects and activities
within Rancheros-Southeast II. They are as follows.
1. Realignment of Rancho Santa Fe Road will proceed in twc-phases tied to
the City's level of service and financing requirements and subject to final
environmental review.
2. Grading and construction within Southeast I1 will occur in the areas
identified in the plan as "phases."
3. Realignment of Rancho Santa Fe Road and the configuration of conserved
habitat in Southeast I1 assumes redesign of Melrose Avenue to avoid two
gnatcatcher use areas and reclassification of the road from a prime to major
arterial.
c, Supplemental Mifigation Measures
In addition to the measures already described, FLCA will work cooperatively
with the City, USFWS, and CDFG to implement the following supplemental
mitigation measures.
1. Research. To provide additional data that can be used to guide habitat
management, FLCA will provide $50,000 for research on the coastal
California gnatcatcher. The focus and design of the research program will
be determined prior to the conveyance of conserved habitat to the
designated management entity.
3-28-94 Revised Draft S-23
Carlsbad-F1CA HCPIOMSP e 0
3 15 * Summary
2. Coordination. To ensure that the needs of multiple species are addressed
and to avoid duplication of effort, the City will coordinate the
implementation of this plan with other conservation programs in and
adjacent to Carlsbad. In addition, FLCA will provide the City with
$1 50,000 for the completion of the HMP.
3. Cooperation. Working with USFWS and CDFG, the City and FLCA will 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.
4. Plan Implementation
implementation of the HCPIOMSP will be governed by an agreement among
the City, FLCA, USFWS, and CDFG. In addition to reiterating the roles and
responsibilities cited above, the agreement will specify reporting requirements
and procedures to address unforeseen circumstances. It also will 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 will include but are not
I i m i ted to:
1. Realignment of Rancho Santa Fe Road and related transportation
improvements in Rancheros-Southeast 11;
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 consetved habitat in both plan area components.
S-24 Revised Draft 3-28-94
._
EXHIBIT 2 0 _. -- -- -. ---------..--.I I
, I3 ' e
Draft: May 15, u -
DRAFT
IXPLEXENTATTON AGRE- REGARDXNG
THE CxTY OR CARLSBAD/FIGLI)STONE/LA COSTA ASSOCIAmS
HABITAT CONSERVATION PfrAN/ON-GOING MlfZrTT-SPECXES PfiarJ
3Y AND BEWBBEJ:
UNITED STATES FISH AND WILDLIFE SERVICE;
TEE CALIFORNIA DEPARTMENT OF FISH AND GM,
THE CITY OF CARLSBAD
and
FIELDSTONE/LA COSTA ASSOCIATES LIMITED BaR'ITNERSHIP
L I* 0 0
TABLE OF CONTENT S - Pac
I- DEPINITIONS AXD EXEIBLTS ...............
A. DEPINITXQNS ....................
1. "Agreement" .................
2 . ilBudgetll ..................
3 . I! Ci ty" ...................
4. flCiey Regulations11 .............
6. "Conserved ff8bit;dt;" .............
7. llBff ective Date" ..............
8. llFieldstonelf ................
9, llFuture Rancho Santa Fe Road" ........
10. "Habi eal: Conservation PJan/On-Going
Multi-Species PlanJ1 or NHCP/OMSEII .....
12. "NMP". ...................
-12. rrHMP Conservancyff ..............
13. rrlNP Program" ................
14. 'rHomeow12ers ASSoC~d~ionr~ ..........
15. lIImpact Areal1 or llIxnpact Areas1# .......
16. 'IMAG Parcel" ................
17. NMapll ....................
18, l1Minor Adjustment1# .............
19, llNorchwesr: Conserved Habitat Parcels't . . + .
20. "Northwest SubareaN .............
21. tV€€site Conservation LmdP * + + + . + . b 22. l'Offsite Mitigation Parcel" ........
23. {'Pernits and MOUsTt .............
24. "Plan Area" .................
25. . lrPlan Activities" ..............
26. flProjectfr ..................
27, 'rRancheros-Southeast II Conserved hlabitat Parcelr1 ..................
28, lJRancheros-SoutheaSt XI Subareai1 ...... 29. lISpecies of Concern" ............
30. "Special Rule" ...............
3 1. JrSubarealt or llSubareas I' ...........
32. rrTermu ...................
33. flWildZifc Conservation Regulationsr1 .....
5. 'Tonsemation mti ty" ............
B. liXBULE 1
Attached to this Agreement are the following Exhibits,
which are incorporated herein by this reference:
Glossam
Exhibit 2 : -
Exhibit 3 : List o f Soecies Q f Concerq
- _____-___ __ - I .-I ..
, ,I ' 0 e
Bxhibi t 4 :
Exhibit 5 :
Exhibit 6:
Pindinqs and Detednationg
Form of Conservation 1~3s ement
Form of Ricrht of First- &gg ssal
IX. m s .......................
A. PLAN aREA OWNERSHIP APJD DEVELOPMENT OF THE
B. SPECIES ADDRESSED BY THIS AGREEMENT AES) THEIR
REGULATION .................... : C+ THE HABITAT CONSERVATION PW .......... 1
D. AUTHORITY OF FWS ................. :
E. AUTHORITY OF DFG ................. ! I?. RELATIONSHIP TO THE NCCP PROGRAM A;ND THE SPECIAL
PROJECT ..................... I
RULE ....................... 3
G. AWTHORITYOFTHE CL!E .............. 3 X, LEGALL REQWXRBMENTS AND ASSURANCES ........ :
Conservation Regulations ....... 2
1 - BCPjOMgP Caas;stency with Wildlife
2. Reliance on Undertakings .......... 3
111. TERN OF THE AGREEMENT ................. 2
A. STATED TERM ................... 2
B. PERIUlNENCE OF CONSERVED HABITAT AND OFFSITE
MITIGATION PARCEL ................ 2
IV. AUT'EORIZATION TO TaKe ................. 2
A. ISSUANCE OF SECTION 10(a) PERMIT AND SECTXON
2~81~0~. .................... 2
1. Section 10(a) Permit ............ 2
2. Section 2081 MOU .............. 2
OF CONCERN .................... 2
C. LISTING OF OWR SPECIES ............. 2 D. ISSUANCE OF MBTA PERMITS ............. 2 E. NOTICES OF PROPOSED RULES AFFECTING ANY SPECIES
OFCONCERN. ................... 2
F. CITY PROJECT APPROVAL AND ASSURANCES ** 2
1. No Approval of Project Beyond Wildlife .. 2 - Project .......... 2
B. FURTHER PERMTTS WITH RESPECT TO UNLISTED SPECIES
-
nC v.* .4 Y ...... ....
3. Environmental Review of-
65-1 5 -95 F:\UWOC\O1~116\85~CAGR.IA1 ii
A .... Q 0
f
G. UTILITY LINES, OTHER FACILITIES AND ACTIVITIES
IN CONSERVED FIXBITAT ............. - - :
V. ;.*.,. OB ....:
A. CONVEYANCB OF CONSERVED HABITAT AFQ OFFSITE
MITIGATION PARCEL ................ :
1, Conveyance of On-site Conserved Habitat ... :
2. Conveyance oE Offsite Mitigation Parcel ....
B, MAINTENANCE OF CONSERmD HAElITAT BP FIELDSTONE
PENDING CONVEYANCE ................ : C, PROTECTION OF ON-SITE CONSERVED HABITAT IN
CON"ION WITH DEVELOPMENT ACTIVITIES . , . . : D. FUNDING ............ .........:
1. By Fieldstone ................ : a. Maintenance of Conserved Habitat - . - - : b. City WP Program and Research ..... :
Funding of Long-term Maintenance of
Conserved Habitat ............. : a. Buclget for Long-term Maintenance and
b.
c. Funding through Homeowners ,Association
2.
Limit of Fieldstone Obligation ..... :
Public Efforts to Provide Long Term
Funding ................ :
and Endowment ............. 4 E. CONDITION PRECEDENT TO PERFOWCE ........ 1
VI. crm FMP; AYWTIONAL CONSERVATLON~ LONG-TERM
OF CONSERVED HABITAT,AND, RELATED MEWSURES , 4
A. CITYHMP.. .................... d B. ADDITXONAL CONSERVATION TO BE PROVIDED
UNDERHMP .................... d
1- Acquisition of Lands within the Corridor
between Caxlsbad and the San Dieguito
Riveqark Planning Area ........... d
3. Right of First Refusal ........... 1
C. LONG TERM MAINTENANCE OF CONSERVED HABITAT ... - 4
I, Creation of the HMP Conservancy ....... 4 2, Annual Report, Program and Budget ...... d
3. Cooperation of Wildlife Agencies and the
City .................... 4
4. Coordination of Conservation and Management Measures with Other Conservatian Programs . 1
5. Enhancement of San Marcas Creek Habitat . + - I
6. Relocation o€ SDG&E Easements ........ f
2. Purther Acquisition Discussions . - . . - . 1
05-15-95
F:\VPDOC\bl\2116\9~6~AGR~IAl Fii
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c
VII, UNFORESEEN CIRCUMSTANCES ............... !
A. INGENERAL.. .................. !
8, PROCEDURE FOR DETERMINING OC-NCE OF UNFORBSEEN CIRCUMSTANCES .............
1. Notice to Parties ..............
2. Submission of Information by Other Partfes .
3 . Findbgs ..................
C. RESPONSE TO OCCURRENCE OF WFOF!33SEEN
CIRCUMSTANCES ..................
VZIZ. AMEND kcENTs, MZNOR ADJUSTMENTS AND EMZRDENCY ACTIO- --
A. FURTHER ACTIONS AND AMENDMENTS ..........
3, MINOR ADJUSTMENTS ................
C. ACTIONS TO PROTECT HUMAN HEALTH 2dVD SAFETY . . , .
3X. MAGPARCEL ......................
X. TEWY8ATION BY FIELDSTONE.. .............
XI. o-..m-rES ................
A. INGWERAt.. ..................
B. REVOCATION AND TEWINATION ............ 1
C. NOTXCE AND OPPORTUNITY TO CURE .......... 1
D. SEVERABILITY.. ................. 1
1. Fieldstone as to Project and Plan Activities and City as to Rancho Santa Fe . Road, .................... 1
2. Conveyance of Parcels by Fieldstone ..... 1 E. UNIQUE WILDLIFE lU3SOvRCES; IRREPARABLE INJURY - .
F. NO LIMITATION IN AUTHORITY ............
XXI. NO FIJRTIDZR MITIGAIT 1.0x .................
A. EO FURTWER MITIGATION ..............
xzxx. MIScELL-as P RQVXSIONS ...............
A. TNCORPORATTON OF THE HCP/OMSP .......... 1 B. ENTIRE AGREEMENT. ................ I
C, ASSIGNMENT AND DELEGATION ............ 1 D. INTERPRETATION OF AMBIGUITIES . - . t . . , . . , 1 E, CAPTIONS. .................... 1
F, 1NDEPENDE;NT INVESTIGATION ............
G. TIMING., .................... H. NOPARTNERSHZP.. ................
I, BLE!jlcTElr> OFPICYALS NOT TO BEWBPY'X' .........
05-15-95 F:\~oOC\O2\2116\9506AGR.IAl iv
...
0 *
, 8' '
*
J. STABDING TO SUE DFG ...............
IC. BENEFIT OF TRE AGREENEW' ........... - ..
M. FORCE MAJEXJRE .. + .......
N. NOTICES ......... .-*++*+----*
0. ATTORJWYS' F3ES - ...... - .... - .. - . I
Q. DUPLICATE ORIGINUS . + ... + ..... - ... d
L. EMINENTDOMAIN. ....... e ...... - - .
.* T t,? V I
P. EFFECTIVE DATE , .................. '
SIGNATURES 76-'
05-15-95
F:\WPDOC\Ol\2t 10\9504AGR. IA'l v
A.
EXHIBIT 3 , .( ’ 0 0
*
Analysis of Recent Changes - to the
Implementation Agreement
In June 1994, the City Council reviewed a previous version of the Implementat
Agreement. Since then, there have been two substantive changes to the agreement. Th
are: (A) provisions relating to offsite mitigation to ensure connectivity between Carlsbad i
habitat lands to the southeast, (B) Fieldstone‘s granting of right of first refusal to the Cit!
purchase portions of Fieldstone’s developable lands. These are discussed below.
A. OFFSITE MITIGATION AND CONNECTIVITY PROVISION
From the inception of the HCP process it was recognized by all of the participants that
conservation on Fieldstone’s property will be meaningless unless there is correspond
conservation outside of Carlsbad in a corridor extending southeasterly from Fieldstor
property to the San Dieguito River Valley and adjacent areas. The first draft of the I-
recommended that the offsite mitigation occur within Carlsbad in order to help implem
the Citywide Habitat Management Plan, and the HCP was modified to reflect this. h,
recently, concerns raised by some conservation organizations led the City and the resou
agencies to return to the original concept of mitigating in the corridor. The final versior
the Implementation Agreement which accompanies this agenda bill requires that Fieldstor
offsite mitigation occur within the corridor area.
Although there would be benefits to having Fieldstone’s offsite mitigation occur wit
Carlsbad, the concept of mitigating in the San Dieguito corridor would provide grei
benefits in terms of regional habitat planning. This corridor has been identified in the Mi
Habitat Conservation Plan (MHCP) as one of the most important in North County, and
essential that this linkage be secured and maintained. In carrying out this offsite mitigati
the City will play an important role in coordinating with other agencies, primarily cou
government. Fieldstone‘s mitigation site is intended to be the nucleus for furi
conservation actions to protect this vital link.
In addition to the change in location, the form of the mitigation has undergone a changc
well. Initially, the requirement was that Fieldstone acquire and dedicate an offsite mitigai
parcel of approximately 240 acres. FWS subsequently determined that a higher leve
onsite conservation was needed on Fieldstone’s Northwest Property to provide a larger i
of southern maritime chaparral, which includes the rare plant species Del Mar manzar
Fieldstone’s Northwest Property contains one of the largest remaining stands of Del I
Manzanita in the region. Fieldstone responded by agreeing to conserve an additional
acres of southern maritime chaparral on the Northwest Property. In exchange for
increased onsite conservation, the resource agencies agreed to cap the cost of the of1
mitigation at $1 million, adjusted annually for inflation.
The scenario for acquisition of the offsite mitigation parcel is expected to proceed gener
as follows. First, the City would oversee compilation a list of candidate parcel!
approximately 200-300 acres in size for possible acquisition within the identified corri
area. The acquisition must occur prior to any disturbance of Fieldstone’s Northv
Property. It could be several years before development of the Northwest Property can oc
(1992) called for the offsite mitigation to occur within this corridor. Later, City !
-
Page 2 . 87 ‘ c e
because there are presently no entitlements on the Northwest Property. It will be necess
to process a General Plan amendment, Master Plan amendment, tentative map, possibly
environmental impact report, and a probably other entitlements as well. These acti
typically require 2-3 years to complete.
At the time of the first final map or grading permit on the Northwest Property, one or rn
of the candidate parcels must be selected for acquisition, subject to approval by FWS ,
DFG. Upon selection of the parcel(s), Fieldstone will be required to contribute $1 mill
towards purchase of all or a portion of the selected parcel(s). If Fieldstone’s $1 million d
not acquire the entire parcel(s), then as part of the City‘s Habitat Management Plan (Hh
the financing strategy will identify potential funding to purchase the remainder of
parcel(s) from whatever sources are available to implement the HMP. These sources r
include, but are not limited to, federal, state or private grants, regional or local bc
measures, regional or local impact fees, or other regional or local revenue sources that r
be developed for the purpose of acquiring habitat and open space lands.
The requirement stated above does not mean that the City will have to use General FI
monies or other funds normally used for City operations or capital projects to purchase
remainder of the selected mitigation site. The wording of the Implementation Agreerr
expressly states that the City’s General Fund may not be used for this purpose. Rather,
acquisition will be accomplished using the sources indicated above when that func
becomes available.
The fundamental purpose of this unique offsite mitigation requirement is to ensure the IC
term viability of conserved habitat in Carlsbad by maintaining regional connectivity. It 1
recognized in the negotiations on this mitigation package that Fieldstone had reached
limit of its ability to fund mitigation and that financing programs to implement the HMP ,
the larger regional plans do not exist at this time. As part of the approval of the HMP
connectivity issue can be addressed in a realistic and flexible manner.
B. GRANTING RIGHT OF FIRST REFUSAL TO THE CITY
As the MHCP progresses toward completion, and particularly as regional funding for ha!
land acquisition becomes available, there may be a desire to use some of that fundin!
purchase a part of Fieldstone’s property that has been designated for development. If
occurs, it would involve only funds dedicated for habitat or open space purposes. The r
of first refusal provision which has been added to the Implementation Agreement is inten
to ensure that approval of the HCP does not preclude the possibility of such acquisitioi
main effect of the provision is to state that the City and Fieldstone can enter int
subsequent agreement to provide for the right of first refusal. It is anticipated that
agreement would provide for a notice to the City in the event that Fieldstone receive!
offer to purchase property, and the City would have the opportunity, but not the obligat
to match that offer.
the future, It does not create any obligation on the City to make any such purchase.
* - 00 - --1-
, I. ’ 0 -Wfl
FRIEND OF BATIQUITOS LAGOON
P.O. BOX 2736, LEUCADIA, CALIFORNIA 92024
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J
ROSALENA HOMEOWNERS CONCERNS, MAY 23,1995
The Trail The proposed plan for Ihe trail by Carlsbad Cily officials has Ihe 11
going through the backyards of some 20 homes. We are especially concerned
this plan since it runs the trail on top the Lagoon bluff and will invade the pri\
of homeowners. The proposed distance from back doors is merely 35 feet and
some cases less. The purpose of the trail is to view the lagoon and nature.
However, due to topography of the land, the Lagoon can not be seen from SOI
spots along the proposed trail. Rather, the proposed trail provides viewing of k
yards of private homes, rear sides of houses, and in some cases into second s
bedrooms.
Homeowners are in favor of a trail along the shores of Batiquitos Laqoon.
The trail should start at the far eastern end of the Lagoon and proceed
westward under the 1-5 freeway along the North edge of the Lagoon to the
Pacific Ocean. An old service road in this area can be used to build on. Thi
plan will permit unobstructed viewing of the Lagoon and maintain the priva
of homeowners. Homeowners on the eastern section of the Lagoon are als
favor of this plan.
The Coastal Commision has told us that the Applicant for the trail, i.e. KaiL
Corporation, is responsible for maintenance and liability. The City and Kaiz;
have stated that these obligations will be transferred to our Association wt
Kaiza sells out, takes its money and leaves.
Also, Kaiza has formed a new corporation “Batiquitos Trail Corporation”
build and be responsible for Poinsettia Shores trails. By doing so they absoi
themselves from liability and circumvent insurance issues.
Our insurance agent, State Farm, has notified us that they will cancel
RosaLena’s insurance policv when the trail traverses our area. We have trie
find an alternative insurer but to no avail. We have infomed the City and K:
of this problem. The City has ignored this concern and instructed Kaiza to
proceed with the building of the trail. They have not responded to our lette
and addressed the following concerns.
1. Liability to homeowners if someone is injured while on the trail or our
properties.
2. The potential for robbery and homeowner harm with the public in our
backyards.
3. The potential maintenance nightmares including: vandalism, keeping the
clear, picking up garbage, and controtling washouts in heavy rains on thf
sections that cut up and down hillsides and slopes. This includes erosion
4. Sections of the trail will be constructed of decomposed granite and virtu
Trail Maintenance and Liability
the bluffs.
impossible for handicapped people to use. City people state that this in
accordance with federal laws, but is it right for Carlsbad?
.. - * *v-- e a
I
Completion of our homes and backyard fences
The City permitted us to move into our homes in 1989 but we are in 1995 s
not allowed to complete our homes. Rather than having a trellis as shown on t
model homes and paid for, residents have 4 metal straps imbedded in their pal
that are kept covered with a plastic nursery can for safety reasons. The lack o
protection from the sun has ruined French doors and provided leak paths that
permit a thorough drenching of living rooms during rain storms. Lack of rear y;
fences allows the coyotes and other wild life free access to back yards. This
particular concern to families with small children, grandchildren, and pets.
The Coastal Commission gave us permission to instail the trellises and fences 1
ago but the City says no!
Messy entrances
We have talked to the developer about our concerns but they are very slow
take action. We understand that their task is not easy but they could clean up
help beautify the area.
Batiquitos Laqoon
that was inhabited by hundreds of migratory birds, i.e. terns, egrets, herons,
avocets, black neck stilts, cormorants, pintail ducks, and pelicans. The island \
an attractive natural habitat where birds could be watched and enjoyed. The ic
has been dredged away and the birds are no longer in view. In place of the isla
the City and dredging company have left us a small platform that resembles a
drilling platform.
Traffic and Speeders
We have had a substantial increase in traffic that violate RosaLena's 15 MF
speed limits. A large portion of cars are looking for a bypass route to San Dieg
caused by freeway construction work. This has caused a traffic hazard for our
children and when we back out of our garage and driveways. We would like ti
have the City provide signs to prevent unnecessary traffic with "Detour" signs
"No Outlet" signs at entrances to Navigator Circle.
Gated Community
Privacy gates on either end of Navigator Circle would provide a means for
control of our streets which we now maintain. The City and Coastal Commissic
are requested to grant permission for their installation.
Prior to the dredging operation there was a small island below Rosalena hoi
e e ’* * - , lC*
P
Actions for Carlsbad City Council Consideration
I. Hold off on RosaLena Perimeter trail until the location, maintenance,
insurance, and liability issues are resolved for &I City Trails.
2. lssue permits for trellises and back yard fences. ( They have been held
hostage long enough).
3. Assist Rosahena in obtaining Privacy Gates.
--- Install signs to deter traffic and slow down speeders.
4. Continue Quadrant Visitations by Council Members.
---- Effective method for communication / observation
5. Remove Floatinq Platforms from Batiquitos Lagoon until dredging starts up
again this fall.
6. Prohibit motor boat traffic on the Lagoon until dredging operations are
resumed in mid September
:nn IYG, -;- p ..::I _- -_ ..Ai. - C'*G ,.,,: ~ ....- _- b-,;:L, r41i:1 --
€ - I , IT;* cod~Yq~eeTIl$J 1 "3 T?E !yFG3h<;S,TiCi'i --.- CF i I q3/v7 .13uy ' jc B -3 * I nE Ci-fy COiiNGiL!
CiTy >uMh!x+pj&/
4 -;~7' ,(; 'rid'; (-,In MANA'X'P =- __I
3OSALmA 'PBill; STATUS - 41AY 23,1995
September 27, 1994; Joint meegng with Coastal Commission and City of Calsbad say. ?resident of the RoAena Horxwwners Association and
2':ojec: Alanager i?om Kaka Poinsettia Corn. Decision made t(
divide tine tza icto south and west segmenis in response to
Xasaiena request. Coastal staff will verify compliance with
Coasrai canditions and noti* the City if the west uaii segment
zouid be built and corresponding veilis permits issued.
City and Kaia notified by the Coastal Commission that the wes.
City issued trellis building permits for seven homes along Navigator Circle adjacent to the west trail segment.
Xaiza negotiates trail construction contract. Kaiza asks City to confirm tic ability to buiid the west trail segment within a City
heid open spce easement.
City sends letter to Kaiza coniiming ability to buiid wesr trail.
Legal counsei for the RosaIena HOA sends a 12 page letter to
Kaka, Coastal Commission and the City outlining several issues
and reaSOns to not allow the trail to be built as approved.
rAaneed ma is still surnmatlzed si- the April 14 letter. Xaiza.
wruting for similar determination from Coastai Commission.
Pldg staff mct with Charlie Marvin III (Rosalena HOA legai counsei) for half an hour and described the City process to
formailv mena the existing approved mil alignment. The
hilowin? irems were discussed:
1 ?xpianation of master pian and LCP amendment process
3 dl propew owners undcriying existing and proAwsd
?ai alignments need to sign applications
:II snvironrnentai review may be required' with the process * sta~Trecomrne~dation of a trail dignment change would
>.e msed on review of the specific application
i. ?oss:aility exists for City approval yet Coastal denial
Yovember 28, 1994:
$ail segment could be built and tdli~ pmits isslreci.
November 30, 1994:
Dec '?&Aprii 3, '9%
April 14, 1995:
ARrii27, 1995
May 8, 1995: City sends letter fo .Kaka stating that the City position hs not
May 16, 1995:
May 23. 1MSr caua Tr '
hiid :he west mi sepent given Chariie Marvin's HOA letter.
w&dn~ to hear from Coastal conrirming the abiliry to
/ .G i -
-
Draft: Azril 7 Mav 15, 19
DRAFT
IMPLEMENTATION AGREEMENT REGARDING
THE CITY OF CARLSBAD/FIELDSTONE/LA COSTA ASSOCIATES
HABITAT CONSERVATION PLAN/ON-GOING MUL'PrS-SPECIES PLAN /
' -7
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
IMPLEMENTATION AGREEMENT REGARDING
THE CITY OF CARLSBAD/FIELDSTONE/LA COSTA ASSOCIATES
HABITAT CONbERVATION PLAN)ON-QOING =TI-SPECIES PIAN
(California Section 2081 Memorandum of Agreement)
This IMPLEMENTATION AGREEMENT REGARDING THE CITY OF
CARLSBAD/FIELDSTONE/LA COSTA ASSOCIATES HABITAT CONSERVATION P
("Agreement1I) is made and entered into as of January -, 1995
and between the City of Carlsbad, California (the llCitylf), a
municipal corporation, Fieldstone/La Costa Associates Limited
Partnership, a California limited partnership (llFieldstonelr) ,
United States Fish and Wildlife Service, an adof the
Department of Interior of the United States (IrFWS1I), and the
California Department of Fish and Game (IIEFGfr) , an agency of t
State of California (the City, Fieldstone, FWS and DFG are
referred to collectively herein as the "Partiesf1).
T
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.
05-16-95 F: \WPDOC\O1\2110\AGRIAl .RDI 1
I. DEFINITIONS AND EXHIBITS (in alphabetical order)
A. DEFINITIONS
The following definitions are used in this Agreement.
Each of the terms defined in the Glossary attached to th
Agreement as Exhibit 1 has the meaning set forth therein when
used in this Agreement.
1. IIAgreement rr means this document entitled:
"IMPLEMENTATION AGREEMENT REGARDING THE CITY 6
CARLSBAD/FIELDSTONE/LA COSTA ASSOCIATES HABITAT CONSERVATION
PLAN1' entered into by and between the City, Fieldstone, FWS ar
DFG.
c
2. "Budget I' means the budget entitled "Management
Cost Assumptions for the Habitat Conservation Plan/Onyoiny Mu3
Species Plan for Properties on [sic] the Southeast Quadrant of
the City of Carlsbad1!, described in the Addendum dated July 1:
1994 to the HCP/OMSP.
3. rrCityn means the City of Carlsbad, California,
municipal corporation.
05- 16-95 F:\WPDOC\01\2110\AGRIAl~RDl 2
4. Vity Regulations" means all existing and futu
City laws , ordinances , rules , regulations, policies, constrain
conditions of development approvals, goals, purposes or other
requirements related to the Conservation of Wildlife, includin
but not limited to those set forth in: the General Plan and
Municipal Code (including the provisions of Title 20 and Title
21) , codified and uncodified ordinances (including zoning
ordinances and Ordinance Number 9795), policies, and the HMP o
the City of Carlsbad.
5. ffConservation Entityf1 means the HMP Conservanc
DFG, an agency of the State of California, ordservation
agency approved by DFG and FWS, which approval shall not be
unreasonably withheld.
T
6. "Conserved Habitat" means the approximately
645.1 acres of lands owned in fee title by Fieldstone within t
Plan Area, consisting collectively of the Rancheros-Southeast
Conserved Habitat Parcel and the Northwest Conserved Habitat
Parcels, all as generally depicted on the Map.
7. "Effective Dateff means the date of the issuanc
of the Section 10(a) Permit by FWS permitting the incidental T
of California Gnatcatchers as contemplated by Section IV
hereinbelow.
05-16-95
F:\WPDOC\01\2110\AGRIAl.RDl 3
e. Vi Ez-"-c:lowct Amr;t" mz;; 9- ----- r,t E.- 232 efft*"-A * CLLU
nn cIaA D-ml AAcIAe~t-n~ ;rAe '2- n-*-- n-7
-4- flnA cln uc. bvuC: U,ct;sra;= C'O * -+ -A-
4 & ffFieldstonell means Fieldstone/La Costa Associa -
Limited Partnership, a California limited partnership.
18 2. "Future Rancho Santa Fe Road" means the -
future roadway as shown and designated as such on the Map,
including, without limitation, all grading and construction
activities connected therewith, a portion of which is adjacent
but not included within Conserved Habitat, thdl be realig
to the proposed "Canyon Alignmentii and reconstructed, in one o
more phases, as a six-lane prime arterial, as described in the
environmental impact report, Clearinghouse Number 90010850,
certified June 2, 1992, including any grading adjacent to the
profile of the proposed road necessary to construct the road.
L
3Ek 10. Wabi tat Conservation Plan/On-Going Mu1 ti -
Species Plan" or lrHCP/OMSPii mean the "HABITAT CONSERVATION
PLAN/ON-GOING MULTI-SPECIES PLAN FOR PLANT AND WILDLIFE SPECIE
OF CONCERN IN THE SOUTHERN QUADRANT OF THE CITY OF CARLSBAD,
CALIFORNIA, dated March 28, 1994", together with the First and
Second Addenda thereto, dated, respectively, July 13, 1994 and
December 21, 1994, all of which have been approved by the Part
in connection with their execution of this Agreement.
05-16-95
F:\WPDOC\01\2110\AGRIAl.RD1 4
32 u. rrHMPiJ means the City of Carlsbad Habitat -
Management Plan, which is a Wildlife habitat conservation plan
that will serve as a component of the City's General Plan Open
Space and Conservation Element, and that will comprise a subarc
component of the MHCP.
available in draft form on July 2, 1993, addresses, in the
context of the subregional MHCP, the protection and management
multiple types of habitat and listed and unlisted species with:
the subarea formed by the jurisdictional boundaries of the Cit]
The HMP, which was made publicly
43 _12. JiNMP Conservancy'' means an agency created -
the City, alone or together with one or more &public
agencies, pursuant to the HMP Program, or otherwise, to own an1
Manage lands for Wildlife Conservation purposes.
T
* 1-3. "NMP Program" means the habitat managemen -
program of the City of Carlsbad in cooperation with the North
County Wildlife Forum of San Diego County, Fieldstone, FWS and
DFG to develop the HMP.
2s _14. rJHomeowners AssociationiJ means an -
incorporated or unincorporated association of homeowners withi
the Plan Area formed for the purposes of, among other things,
holding, maintaining, operating and protecting common areas an
open space, and funding those activities within any Subarea.
05- 16-95 5 F: \WPDOC\O1\21 IO\AGRIAl .RDI
ilAi 15. "Impact Area" or IIImpact Areas" mean, -
respectively, a portion or portions of the Plan Area, as shown
the Map, which are excluded from Conserved Habitat and will be
developed as part of the Project.
43 16. ffMAG Parcelff means that certain -
approximately 81 acres of land located within the Impact
Areas lying southeast of Existing Rancho Santa Fe Road within
Southeast I1 Subarea, as shown on the Map.
ik8 17. fiMapff means the map attached hereto as _.
Exhibit 2, which generally depicts, among othgdngs, the P1
Area, the Northwest Subarea, the Rancheros-Southeast I1 Subare
the Impact Areas, the MAG Parcel, the On-site Conserved Habita
the Future Rancho Santa Fe Road alignment and the SDG&E
easements.
.-
'7
33 18. "Minor Adjustmentii means an adjustment or
modification of the Conservation measures under the HCP/OMSP a
implemented by this Agreement that is expected to result in
adverse impacts to the Species of Concern that are substantial
the same or less than those contemplated by the HCP/OMSP, whic
may include, for example, some modifications in the boundaries
the Conserved Habitat.
_.
05 - 16-95
F:\WPDOC\01\211O\AGRIA1.RD1 6
28 19. JINorthwest Conserved Habitat Parcels 'I mea
those portions of Conserved Habitat located within the Northwe
Subarea, consisting of approximately 123.69 acres of land, as
shown on the Map.
_.
21- a. Worthwest Subarea" means that portion of
the Plan Area consisting of approximately 662 acres of land, a
shown on the Map.
-
22 21. llOffsite Conservation Lands1' means lands -
approved by FWS and DFG, and located generally within the
corridor between the City and the San Dieguitadqark Plann
Area, to be conveyed to a Conservation Entity or-other
conservation organization approved by FWS and DFG in accordancc
7-
with Section V.B.1,
22. llOffsite Miticration Parcel" means the lands -
reauired to be conveyed bv Fieldstone Pursuant to Section V.A.;
as provided in Section VI.B.l.a.(2), which lands will comprise
portion of the Offsite Conservation Lands.
23. "Permits and M0Us1' means all Permits and MOUs
issued or entered into Pursuant to or as contemplated by this
-
Sreement, includincr, but not limited to, Section 10(a) bermits
Section 2081 MOUs, Section 2835 Permits and MBTA Permits.
05- 16-95
F:\WPDOC\01\2110\AGRIAl.RD1 7
23 24. I1PZan Area" means the lands covered by -
HCP/OMSP, consisting of the Rancheros-Southeast I1 Subarea and
the Northwest Subarea and the 14-acre portion of the Rancho Sa
Fe Road right-of-way outside of the Subareas,
24 25. "Plan ActivitiesI1 ( Ifall activities -
authorized under the HCP/OMSPrl) means all activities of every
kind and nature that are necessary or appropriate in order to
develop, complete, effect, use, operate, manage, enhance, repa
and maintain the Project and the Conserved Habitat, with timin
and phasing determined by the respective actor with respect to
each such activity. r;c <
' 7- *'
25 26. llProject I' means the development contempla. _.
by the HCP/OMSP to be located within the Impact Areas and, to
extent provided under Section IV.G, within Conserved Habitat,
urban facilities, structures and uses, without limitation: (i
residential, commercial, facilities and infrastructure
improvements; and, (ii) road and related transportation
facilities.
the Project, includes: grading and landscaping; utilities,
communication lines, facilities, pipelines and rights-of-way, (
Without limiting the generality of the foregoing,
every kind and nature; roads, bikeways and walkways; dams,
channels, bridges, water and sewer systems; recreational
facilities, trails and open space; and, all other development,
structures and facilities of every kind and nature.
05 - 16-95 F:\WPDOC\D1\2110\AGRIAl.RD1 8
* 27. "Rancheros-Southeast I1 Conserved Habitat
Parcel" means that portion of Conserved Habitat that Fieldstor
owns in fee, located within the Rancheros-Southeast I1 SubareE
consisting of approximately 521.41 acres of land, as shown on
Map.
2rF 28. - "Rancheros -Sou theas t II Subarea If means tl
portion of the Plan Area consisting of approximately 1,278.2
acres of land as shown on the Map.
28 29. - Ifspecies of Concern If means those species
L;/ 4
' -7 listed in Exhibit 3.
24 x. - "Special Ruleff means Section 17.41 (b) Ti
50 of the Code of Federal Regulations with respect to the
Gnatcatcher.
218 31. - "Subarea If or Ifsubareas If mean, respective]
one or both of the Northwest Subarea and the Rancheros-
Southeast I1 Subarea as depicted on the Map.
33.z 32. - Termff means that period during which,
regardless of the Ifstated term" set forth in Article 111, thiE
Agreement is in effect.
9 05- 16-95 F:\WPDOC\01\2110\AGRIA1.RDI
32 33. - Wildlife Conservation Regulations1' means a
local, State and federal laws, ordinances, regulations,
guidelines, policies and directives regulating or restricting
impacts or - effects of the Project on Wildlife and its
habitat, including, without limitation: ESA (including, withc
limitation, Section 10(a), Section 4(d) and the Special Rule;
CESA (including, without limitation, Section 2081); NCCP Act
(including, without limitation, Section 2835); NCCP Program;
NEPA; CEQA; the federal Fish and Wildlife Coordination Act; ME
Act, the federal Clean Water Act; Section 1601 and 1603 of the
California Fish and Game Code; the California Native Plant
Protection Act (California Fish and Game Code / ction § 1900 5
m.) and City Regulations with respect thereto. As to each
party, such wildlife conservation regulations are those
administered by or under which the party exercises legal
jurisdiction or authority.
c
B. EXHIBITS
Attached to this Agreement are the following Exhibits,
which are incorporated herein by this reference:
Exhibit 1 : Glossary
Exhibit 2 : The Mar,
05-16-95 F:\WPDOC\01\2110\AGRIAl.RD1 10
Exhibit 3 : List of SDecies of Concern
Exhibit 4 : Findings and Determinations
Exhibit 5: Form of Conservation Easement
Exhibit 6 : Form of Risht of First Refusal
11. RECITALS ,<
' -4
This Agreement is based on the following facts:
A. PLAN AREA OWNERSHIP AND DEVELOPMENT OF THE PROJECT
The Plan Area consists of the Rancheros-Southeast I1
Subarea and Northwest Subarea owned by Fieldstone and others
(with respect to the Mag Parcel), and a portion of the right-c
way for Future Santa Fe Road owned by the City.
Fieldstone and the City desire to: (i) effect the Projec
within the Plan Area in phases determined appropriate by the
respective developer of each portion thereof; and, (ii) minim:
and mitigate the impacts of the Project on the Species of Conc
05- 16-95 F:\WPDOC\01\2110\AGRIA1.RD1 11
and their habitats by providing for the Conservation of the
Species of Concern and their habitats, as provided herein, wit
the Conserved Habitat.
B. SPECIES ADDRESSED BY THIS AGREEMENT AND THEIR
REGULATION
The Species of Concern are species that use, occupy or E
associated with the Plan Area and include, but are not limitec
species that are: (1) Listed as I1threatened1I or l1endangeredl1
under ESA or CESA; (2) proposed or candidates for such listins
(3) of special concern in California; (4) rarwKZeclining
regionally; or (5) of local concern. Certain Species of Conce
for example, but without limitation, the Gnatcatcher, are
currently Listed under ESA and it is anticipated that one or n
of the other Species of Concern may be proposed to be or may
become Listed under ESA or CESA.
‘T
C. THE HABITAT CONSERVATION PLAN
The HCP/OMSP has been collaboratively developed pursuant
a three year facilitated focused planning process led by the (
and involving representatives of Fieldstone, the City, DFG, FI
conservation organizations and various other individuals,
agencies and organizations in order to fully reconcile conceri
regarding the conservation of the Species of Concern and thei
05 - 16- 95 F:\WPDOC\01\2110\AGRIAl.RD1 12
habitat and the Project and to provide the basis for the
expeditious issuance of permits and approvals under and pursua
to the Wildlife Conservation Regulations. FWS and DFG
consultants have independently and thoroughly reviewed the
HCP/OMSP, which is acknowledged to be the product of accurate,
thorough and lengthy studies and surveys.
D. AUTHORITY OF FWS
FWS has provided guidance to the City and Fieldstone in
preparation of the HCP/OMSP and entered into this Agreement
pursuant to ESA and the United States Fish and-dlife
Coordination Act (16 U.S.C. §§ 661 CCCcl et secr.) and the FiE
and Wildlife Act of 1956 (16 U.S.C. § 742f). In connection wj
the enactment of Section 10(a) of the ESA, the United States
Congress expressed its intent that FWS cooperate in the
development of conservation plans that protect both listed anc
' -7
unlisted species over the long term while providing assurancei
regarding the limits of any Mitigation required, stating that
[Tlhe Secretary [of the Interior] . . . may . . . approve conservation plans which provide long-term
commitments regarding the conservation of listed a:
well as unlisted species and long-term assurances 1
the proponent of the conservation plan that the te:
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 eve] that an unlisted species addressed in an approved conservation plan is subsequently listed pursuant the Act, no further mitigation requirements should imposed if the conservation plan addressed the
05 - 16-95 F:\WPDOC\01\2110\AGRIAl.RD1 13
conservation of the species and its habitat as if t species were listed pursuant to the Act.
***
It is also recognized that circumstances and information may change over time and that the origi
plan might need to be revised. To address this
situation the Committee expects that any plan apprc
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)l.
E. AUTHORITY OF DFG
DFG has participated in the preparation of t HCP/OMSP
entered into this Agreement pursuant to CESA, whieh provides t
the Department has jurisdiction over the conservation, protect
and management of fish, wildlife, native plants and habitat
L. 2
.I
necessary for biologically sustainable populations of those
species. See, e.q., California Fish and Game Code §§ 1801, 1I
2000, 2052. DFG is charged not to approve projects as proposr
that would jeopardize the continued existence of any !fendange~
or "threatenedr1 species or that would result in the destructic
or adverse modification of habitat essential to the continued
existence of those species if there are reasonable and prudenl
alternatives available consistent with conserving the species
its habitat that would prevent jeopardy. California Fish and
Game Code 8 2053. Bowever, in the event specific economic,
social or other conditions make infeasible such alternatives,
individual projects may be approved if appropriate 'Imitigatio:
05- 16-95 F:\WPDOC\01\2110\AGRIAl.RD1 14
and enhancement measures are provided. California Fish and Ga
Code § 2054. Further, DFG may authorize the Take of Species o
Concern Listed under CESA for scientific, educational or
management purposes under: (1) CESA and Section 2081; and (2)
California Fish and Game Code Sections 2835 and 3007.
F. RELATIONSHIP TO THE NCCP PROGRAM AND THE SPECIAL RT:
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 Progr
which is a pilot project under the NCCP Act tdovides for
preparation of NCCPs for coastal sage scrub habitat and the
species that inhabit and use coastal sage scrub habitat,
including the Gnatcatcher. The California Resources Agency, 1
and FWS have entered into that certain IIMOU REGARDING COASTAL
SAGE SCRUB NATURAL COMMUNITY CONSERVATION PLANNING IN SOUTHEF3
CALIFORNIA,II executed December 4, 1991, providing for a policl
coordination and cooperation between FWS and DFG in the
development of plans for the conservation of coastal sage scri
natural communities.
’ -7-
FWS has adopted the Special Rule, which defines those
conditions under which incidental take of the Gnatcatcher undc
the ESA, that is not otherwise excepted under Section 7 or
permitted under Section lO(a), will not be considered a viola1
05- 16-95 F:\WPDOC\01\2110\AGRIAl~RD1 15
of the ESA. Those conditions are: (1) if the incidental Take
results from activities conducted in accordance with an NCCP f
the protection of CSS habitat prepared consistent with the Sta
of California's NCCP Conservation and Process Guidelines,
provided that (a) the NCCP has been prepared, approved and
implemented pursuant to the NCCP Act; and (b) the FWS has issL
written concurrence that such plan meets the standards set for
in 50 C.F.R. § 17.32(b) (2) ; or (2) during the period that an 1
is being developed, the incidental Take occurs within an area
under the jurisdiction of a local government that is enrolled
actively engaged in the preparation of such a plan and such Tz
results from activities conducted in accordandh the NCCP
Conservation and Process Guidelines. Section 2835 provides t€
DFG may permit the Taking, as provided elsewhere in the
California Fish and Game Code, of any identified species whose
ffconservationll and llmanagementlf is provided for in a DFG apprc
NCCP .
-
The HCP/OMSP is exempt from the NCCP Act pursuant to
Section 3 of the NCCP Act in that it was prepared pursuant to
pre-existing agreement for the preparation of a habitat
conservation plan or NCCP approved by the Director of DFG pric
to January 1, 1992, the effective date of the NCCP Act.
Notwithstanding this exemption, as set forth in various
agreements related to the preparation of the HCP/OMSP and the
among the Parties and among certain Parties and other State
05- 16-95
F:\UPDOC\01\2110\AGRIAl~RD1 16
agencies responsible for implementation of the NCCP Program,
including the NCCP Program enrollment agreements between the C
and the Resources Agency of the State of California, the Parti
intend that the HCP/OMSP be coordinated and consistent with th
NCCP Program such that the objectives of the NCCP Program will
substantially achieved and preparation of a regional NCCP will
promoted. Further, while the HCP/OMSP independently meets thE
requirements of CESA and ESA, the City and Fieldstone also ha1
cooperated with the preparers of the HMP and the MHCP, which E
subarea and subregional plans prepared under the NCCP Act, to
ensure that the HCP/OMSP will be a completed component of the
NCCP Program. Y 4 --
Specifically, the HCP/OMSP is recognized as an initial
component of the HMP, which in turn is a subarea component of
subregional MHCP under the NCCP Program. The HCP/OMSP, HMP ar
MHCP are all multiple species and multiple habitat conservatic
plans prepared in the context of ESA, CESA and the NCCP Progrz
to achieve the goals and objectives of the Wildlife RegulatioI
in general.
G. AUTHORITY OF THE CITY
The City is authorized to enter into and has entered in1
this Agreement pursuant to statutes and the Constitution of tl
State of California, authorizing the City to regulate the use
05- 16-95 F:\'rlPDOC\01\2110\AGRIA1.RDl 17
land, accept or approve open space and conservation easements,
create assessment districts, enact conservation and open space
elements for general plans, preserve natural resources, includ
Wildlife, and exercise general planning and zoning powers, and
enter into contracts and take other actions to conserve wildli
resources and reconcile such concerns with economic developmer
See, e.cT., California Government Code §§ 50060.5, 51205, 5107C
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 permits and MOUs redg public
improvements and facilities, the possible managefnent of the
Conserved Habitat and the MAG Parcel, under Section lO(a) and
Section 2081, and a local jurisdiction with authority to regul
the use of lands within its jurisdiction, including the Plan
Area.
'T
H. LEGAL REQUIREMENTS AND ASSURANCES
1. HCP/OMSP Consistencv with Wildlife Conservatic
Realations
The HCP/OMSP as implemented by this Agreement is
intended to effect the long-term reconciliation of the
Conservation of the Species of Concern and economic developme:
05- 16-95 F:\WPDOC\01\2110\AGRIAl~RD1 18
activities within the Plan Area, and to be consistent with and
fulfill the requirements of all Wildlife Conservation Regulati
with respect to the Project and Plan Activities including,
without limitation: Section lO(a), the MBTA, Section 2081,
Section 2835, Section 404 of the federal Clean Water Act (wit?
respect to the avoidance, minimization and mitigation of all
impacts on the Species of Concern and their habitat with respe
to all waters of the United States within the Plan Area), and
required mitigation of impacts to, or other actions with respe
to, Species of Concern and their habitat under any Streambed
Alteration Agreements with respect to the Plan Area required
pursuant to Sections 1601 et sea. of the Cali& Fish and C
Code; the NCCP Program; the Special Rule; the California Natil
Plant Protection Act; and, City Wildlife Regulations. The
HCP/OMSP, as implemented by this Agreement, is: (1) consistent
with and will complement other applicable conservation plannir
and regulatory programs and efforts addressing Wildlife in the
City, the subregion and in the region, such as the HMP, the MZ
and the NCCP Program; and, (2) based on current scientific an<
other information, reduces and mitigates the potential
significant adverse impacts of the Project and Plan Activities
the Species of Concern and their habitats to a level of
insignificance.
-
2. Reliance on Undertakinss
05 - 16-95
F:\WPDOC\01\2110\AGRIAl~RDl 19
Each of the parties has bargained for and relied tc
its detriment, and has intended that the other parties rely, u
the significant and valuable undertakings, assurances, and thc
punctual and complete performance of this Agreement.
111. TERM OF THE AGREEMENT
A. STATED TERM
This Agreement shall become effective as of the EffectiT
Date and shall remain in full force and effect during the perj
of time commencing on the Effective Date and dating thirt
(30) years from the Effective Date (the "Stated Term"), subjec
to earlier termination pursuant to the provisions of this
Agreement.
' T
B. PERMANENCE OF CONSERVED HABITAT AND OFFSITE MITIGA'
PARCEL
Notwithstanding the Term of this Agreement, once any
Species of Concern have been incidentally Taken and their hab:
modified within the Plan Area pursuant to the HCP/OMSP and th:
Agreement, the take and habitat modification shall be permanei
Therefore the provisions of the HCP and this Agreement regard.
the maintenance, preservation and dedication of Conserved Hab
within the Plan Area, and maintenance and preservation of the
05-16-95 F:\WPDOC\01\2110\AGRIA1.RD1 20
Offsite Miti'jzklx ?zrcz1 Conservation Lands shall likewise, t
the extent permitted by law, be permanent and extend beyond th
Term of this Agreement.
IV. AUTHORIZATION TO TAKE
A. ISSUANCE OF SECTION 10(a) PERMIT AND SECTION 208
MOU
1. Section 10(a) Permit
On the Effective Date, FWS has igmr?da Section
' .+-
lO(a) Permit authorizing the incidental Take b;y the
Permittees in connection with the Project and Plan
Activities, of Species of Concern that are Listed or may be
Listed in the future under ESA, which permit requires
compliance with this Agreement as a condition thereof. As
to each Species of Concern that is not currently Listed
under the ESA, the permit shall become effective with
respect to such Species of Concern uDon its Listins under
the ESA.
2. Section 2081 MOU
This Agreement constitutes a Memorandum of
Understanding under Section 2081 and authorization under
05- 16-95
F: \WPDOC\O1\211 O\AGRI AI . RD 1 21
Section 2835 whereby the Permittees are authorized and
permitted to Take the Species of Concern (Listed or which
may become Listed in the future under CESA) for the Term,
subject to and in accordance with the provisions of this
Agreement.
B. FURTHER PERMITS WITH RESPECT TO UNLISTED SPECIES
OF CONCERN
Notwithstandins Section IV.A.l, in the event that it
is judicially determined that FWS was not authorized to
issue a Section 10(a) Demit for all of thh dies of
Concern, FWS shall issue Section 10(a) permits for the
Species of Concern as they become Listed, as otherwise
provided in this Section 1V.B. Upon application from time
to time by the City or Fieldstone for further Section 10(a)
Permits, subject to compliance with ESA and applicable
statutes and regulations (but not including any requirement
of further surveys on the part of the applicant), after
public review and subject to the provision with respect to
the occurrence of unforeseen circumstances set forth below,
as soon as practicable, FWS shall issue further
Section lO(a) Permits for the remaining Term of this
Agreement allowing the incidental Take of szid zpcei '23 the -
Species of Concern by the Permittees in connection with the
Plan Activities in accordance with this Agreement and shall
!r
05- 16-95 F:\WPDOC\01\2110\AGRIAl.RD1 22
not request, impose, recommend or require further
mitigation, compensation or protection for the listed
species under NEPA, ESA, or any other Wildlife Conservation
Regulations, except as expressly provided in this Agreement
-,t rrt-r- .,-e 9- W I LIAL.‘ LUAAUlILg U
.. -4- th-4- -,t -,- -.-A.,”.,-ll*F A AAL LAALLL &cI -LY JUUIL-LUII U A 4-1-4- w-- * CL LAAUL J. YI
CULkASZlZZd tc ;zz=’LZ z SZctLoPA Lc<z) SL-Lt fcr 211 SE t?~2
€cr tk S;czkz cf CcE3srE zz t! Li9t22, 2s
ethcrvisc prCK-idL I;= this Sezti-- YJ.l.2.
C. LISTING OF OTHER SPECIES LC 4
’7
In connection with the Listing under ESA or CESA of
any species other than a Species of Concern, and upon prope
application, FWS or DFG, as appropriate, shall expeditious1
consider the issuance and if appropriate issue a Section
lO(a) Permit or a Section 2081 MOU, as applicable, in
connection with the Project upon a finding that the HCP/OMS
and IA meet ESA or CESA, as applicable, standards for the
issuance of an Incidental Take Permit for such species.
In determining whether any further mitigation measure
are required to issue a Section lO(a) Permit or enter into
Section 2081 MOU with respect to a species, other than a
Species of Concern, FWS and DFG shall: (1) take into
05-16-95 F:\WPDOC\01\2110\AGRIA1.RD1 23
consideration that Fieldstone and the City haw ~hPiihized
and mitigated the impacts to the Species of Concern within
the Plan Area to the maximum extent practicable; and, (ii)
use their best efforts to cooperate with Fieldstone and the
City in good faith to minimize the adverse impacts of the
Listing of such species on the Project.
D. ISSUANCE OF MBTA PERMITS
Upon application from time to time by Fieldstone or
the City, and upon compliance with applicable permit review
procedures, FWS shall expeditiously issue MBdermits
allowing the Take of any birds covered by the'MBTA, with
compliance with the terms of this Agreement as a condition
e
thereof. Prior to individual development activity within
any of the Impact Areas, in addition to the requirements of
the HCP/OMSP, Fieldstone shall implement measures to
relocate raptors that are Species of Concern so as to a=+&d - minimize imnacts thereto.
E. NOTICES OF PROPOSED RULES AFFECTING ANY SPECIES
OF CONCERN
DFG and FWS each shall ea& use its best efforts to
endeavor to send any future public notices to Fieldstone an
the City of any proposed rule which it promulgates to
05-16-95 F:\WPDOC\01\2110\AGRIAl.RD1 24
protect a Species of Concern as a Listed Species of Concern.
Upon application for a Section lO(a) or Section 2081 MOU,
FWS and DFG shall endeavor to expeditiously process the
application so as to allow, in accordance with Section 1V.B
above, the issuance concurrently with the taking effect of
such listing or as soon thereafter as possible.
F. CITY PROJECT APPROVAL AND ASSURANCES
1. No ADRrOVal of Project Bevond Wildlife
Nothing in this Article IV shalldterpreted -
as a final approval of the Project by the City.
review by, zA& Cfzv:lzpeemit=: frm , the City will be
required before any portion of the Project may be developed
provided, however, that under no circumstances shall the
City - request, require, impose or recommend any
further Mitigation, compensation, enhancement, protection o
Conservation with respect to the Species of Concern beyond
that required by this Agreement.
Further
2. W - General Plan Amendmen
It is acknowledged that the City has adopted a
General Plan providing for certain types and levels of
development within the Impact Areas. The City shall use it
05 - 16-95 F:\WPDOC\01\2110\AGRIA1.RD1 25
best efforts to expeditiously consider eet~rizg 2 fzb~
nt P- AAL LU
-J- qn ..---- -.-L: -5 -L. 2” yLurur WLAAbA
WILL ‘V’Czt LE PzzLzZ-Az tkc rlskt tc dLTLcp th.2 rrczect
w;tk;zr: thc I~zc~ A~CZZ LE ZCCS~~ZECZ ~ltk tkc C~ty CC~C~Z,~
a;;rs-v-cd, tk f-~rth.~~ -t cf tk.2 amendins said General
Plan to provide collectively for the following:
a. the redesignation of Melrose Avenue
South of Rancho Santa Fe Road from “prime arterial” to
“major arterial” ; -4
b. the revision of the open space and area
designated for development in the land use map of the
General Plan to be consistent with, respectively, the
Conserved Habitat and Impact Areas provided for in the
HCP/OMSP and provision that no further open space will be
required beyond the Conserved Habitat under the General
Plan, including but not limited to the growth management
provisions thereof;
c. the shift of allowable dwelling units
currently provided for within the portions of the Conserved
Habitat to the Impact Areas (including, for example,
05- 16-95 F:\WPDOC\01\2110\AGRIA1.RD1 26
portions of the Impact Areas currently designated as open
space under the General Plan); and,
d. the requirement that the owner of the
MAG Parcel reimburse Fieldstone for a prorata share of the
costs of preparing the HCP/OMSP as a condition precedent to
said owner receiving any benefits under the HCP/OMSP and
this Agreement.
1. Environmental Review of BrV-z1-
?A?=;rc,mc;nt - 2x3 Proi ect
sa<
'T
The City shall use its best efforts to
expeditiously complete the environmental review of &e
3e&epwe- each phase of the Project under
applicable federal, state and local laws governing
environmental and public review of the approval of those
projects.
G. UTILITY LINES, OTHER FACILITIES AND ACTIVITIES I
CONSERVED HABITAT
The Project and Plan Activities include the creation,
construction, installation, repair, maintenance, and
replacement of required utilities, facilities, related
corridors, and public uses and rights-of-way within
05- 16-95 F:\WPDOC\01\2110\AGRIA1.RDl 27
Conserved Habitat (including, but not limited to:
vegetation modification within zones established pursuant tc
City ordinances for the protection of urban development froa
catastrophic fire (fuel modification zones); and temporary
and permanent uses, ways and facilities for drainage, water,
electricity, telephone, sewer, gas and other utilities and
services),
located within the Conserved Habitat shall be subject to
approval by FWS, DFG and the City as being in accordance
with this Section, which approvals shall not be unreasonabl:
withheld, and in this regard: (i) shall be designed to
All such Project elements and Plan Activities
minimize and avoid impacts on the Species 05 4 ncern and
'5
their habitat within Conserved Habitat to the-maximum exten'
practicable, consistent with the requirements of the Projec.
and Plan Activities and the levels of development provided
for in the City General Plan; and, (ii) any such impacts on
such species shall be offset as soon as practicable by the
revegetation of habitat, adaptive management measures withi
Conserved Habitat and Minor Adjustments. Without limiting
the generality of the foregoing, any fuel modification zone
required to serve elements of the Project shall be located
within the Impact Areas to the extent reasonably practicabl
taking into consideration the levels of development within
the Impact Areas contemplated by the City General Plan and
when located in Conserved Habitat shall be fully mitigated
in - accordance with this Section. The dedication of
05- 16-95 F:\WPDOC\01\2110\AGRIA1.RD1 28
Conserved Habitat and the conveyance of the conservation
easement provided for in Section V.A. shall except and
reserve to Fieldstone the rights and interests necessary to
carry out the purposes of this Section 1V.G.
v. OBLIGATIONS OF FIELDSTONE AND E")ING
Fieldstone shall perform the covenants set forth in this
Article V, in accordance with and subject to the conditions
set forth in this Agreement.
A. CONVEYANCE OF CONSERVED HABITAT d OFFSITE
' -7 .. MITIGATION PARCEL
05- 16-95 F:\WPDOC\01\2110\AGRIAl.RD1 29
1. Convevance of On-site Conserved Habitat
Prior to the disturbance of any habitat occupied
by any Species of Concern within the Plan Area (except for
minor activities approved by the FWS and DFG, which approva:
shall not be unreasonably withheld) and in no event later
than two years after the Effective Date of this Agreement 0.
six months after the tzki~g cffcct sf tk Zc-,c;=t - amendment of the General Plan as nrovided in
Section IV.F.2., whichever date occurs later, Fieldstone
shall irrevocably offer to convey:
,<
’ -7
a. a conservation easement to the DFG in
and over the Conserved Habitat, in the form attached hereto
as Exhibit 5, providing that the Conserved Habitat will be
held and used in perpetuity for Wildlife Conservation
purposes ; and
b. fee title to the Conserved Habitat, to
be held and used in perpetuity for Wildlife Conservation
purposes to, in order of preference:
(1) the HMP Conservancy, provided thai
at the time of conveyance: (a) Fieldstone and or the HMP
Conservancy establishes to the satisfaction of FWS, a viabll
source of funding for the permanent management of the
30 05- 16-95 F:\WPDOC\01\2110\AGRIAl.RD1
Conserved Habitat in accordance with the HCP/OMSP; and, (b)
the HMP Conservancy commits in writing to accept said
conveyance and assume for the benefit of FWS and DFG the
obligation to manage, operate and maintain the Conserved
Habitat in perpetuity for Wildlife Conservation purposes
only in accordance with the HCP/OMSP and this Agreement; or
(2) in the event that the HMP
Conservancy fails to satisfy the requirements of #&s
paragraph V.A.l.b(l) above, a Conservation Entity jointly
designated in a written notice to Fieldstone by FWS, DFG an
the City that otherwise satisfies the require@& of
paraqraph V.A.1.b. (1) above; or ‘T
(3) in the event that neither the HMP
Conservancy nor any other Conservation Entity approved by
FWS, DFG and the City has committed to accept said
conveyance in accordance with this paragraph and paragraph
(l), a homeowners association for the Project, provided
however, that said homeowners association satisfies the
requirements of V.A.1.b. (1).
Said conveyance by Fieldstone shall be subject
to, and shall reserve and except, the rights and easements
necessary to provide for certain elements of the Project an
Plan Activities within Conserved Habitat in accordance with
05- 16-95 F:\UPDOC\01\2110\AGRIAl.RDI 31
Section 1V.G. hereinabove; liens for taxes and assessments;
and rights, interests and exceptions and conditions of tit16
that do not interfere with the use of the Conserved Habitat
for Wildlife Conservation as reasonably approved by FWS and
DFG .
Fieldstone may provide in any such conveyance of
the Conserved Habitat for a reversion of fee title to
Fieldstone on the occurrence of the condition subsequent
that the Conserved Habitat is used for any purpose other
than wildlife conservation in accordance with this Agreemeni
and the HCP. In the event of any such revvdof title tc
Fieldstone and the availability of the trust fund provided
in Section V.D.2., Fieldstone shall accept and hold title
subject to the obligations of the Conservation Entity to
maintain the - Conserved Habitat as provided in this
Agreement.
'4
Unless and until Fieldstone completes the
conveyance of the Conserved Habitat as provided in this
Section V.A.l.b., Fieldstone shall continue to manage,
operate, and maintain the Conserved Habitat in accordance
with the HCP/OMSP and this Agreement, until such conveyance
is completed.
05 - 16-95 F:\WPDOC\01\2110\AGRIAl.RDI 32
2. Convevance of Offsite Mitisation Parcel
Prior to or concurrently with the earlier of:
(i) the recordation of any final subdivision tract map for
development within the Northwest Subarea; or (ii) any
disturbance of habitat by Fieldstone related to development
of the Project within the Impact Areas of the Northwest
Subarea, Fieldstone shall cause the I1Offsite Mitigation
Parcel" to be conveyed as provided in Section VI.B.1.a.
B. MAINTENANCE OF CONSERVED HABITAT BY FIELDSTONE
PENDING CONVEYANCE - / .-
*-
Prior to conveyance of the Conserved Habitat pursuant
to Section V.A. above, Fieldstone, at its sole cost and
expense, shall manage, operate and maintain the Conserved
Habitat and in accordance with the HCP/OMSP and this
Agreement. Such required Management activities, as detaile
in the HCP/OMSP and the Addenda thereto, include:
1. the removal of trash resulting from dumping
in order to prevent disturbance and the establishment of
non-native weedy plant species;
2. trapping and removal of cowbirds for the
purpose of reducing the potential for cowbird parasitism of
33 05 - 16-95
F:\WPDOC\01\2110\AGRIA1.RD1
the Gnatcatcher and other passerine nests in accordance wit1
the cowbird trapping program outlined in the HCP/OMSP and
the Addenda thereto; and
3. monitoring of the Conserved Habitat for the
presence of feral animals and, to the extent reasonably
practicable, exclusion of such animals from the Conserved
Habitat.
C. PROTECTION OF ON-SITE CONSERVED HABITAT IN
CONNECTION WITH DEVELOPMENT ACTIVITIES
-4
IC
Prior to the grading of any portion of the Impact
Areas reasonably adjacent to the Conserved Habitat,
Fieldstone shall:
1. fence the boundary between the development
activities and the adjacent Conserved Habitat so as to limi
access thereto; no construction access, parking or storage
of equipment e€ 01: - materials shall be permitted within
Conserved Habitat;
2. prior to any grading or vegetation removal,
conduct a survey, utilizing a monitoring biologist
("Monitoring Biologist") approved by FWS, DFG and the City,
which approval shall be,expeditiously provided and shall no
05-16-95 F:\WPDOC\01\2110\AGRIA1.RD1 34
be unreasonably withheld, to locate on-site nests of
Gnatcatchers; nests shall he marked and mapped on the
project grading plan; and during breeding/nesting season fo
the Gnatcatcher, no grading operations shall take place
within 500 feet of nests containing eggs or nestlings;
3. engage the Monitoring Biologist to be on-
site during brush clearing and grading operations affecting
CSS Habitat; the Monitoring Biologist shall flush
Gnatcatchers from occupied habitat areas immediately prior
to brush clearing and earth moving or, if they cannot be
flushed, they shall be captured in mist netsdrelocated
to Conserved Habitat, and shall ensure that no Gnatcatchers
are directly removed by brush clearing or earth moving
equipment ;
’ .7-
4. comply with City-mandated dust control
programs and periodically spray CSS Habitat vegetation in
the vicinity of construction with water to reduce dust
accumulated on leaves i-s as necessary to avoid injury to tk
vegetation; and,
-
5. minimize and mitigate the impacts on
Conserved Habitat in connection with any elements of the
Project or Plan Activities contemplated pursuant to Sectior
1V.G. hereinabove.
35 05- 16-95
F:\WPDOC\01\2110\AGRIA1.RDl
6. carry out such additional protective
measures as are provided for in the HCP/OMSP.
D. FUNDING
1. By Fieldstone
Fieldstone shall pay, or cause to be paid, the
amounts, and incur and bear the costs and expenses set fort
in this Section V.D.
a. Maintenance of Conse-dbitat -
As provided in Section V.B., above,
Fieldstone shall incur and pay the costs and expenses with
respect to the maintenance of the Conserved Habitat prior t
conveying said parcels pursuant to Section V.A., above.
b. Citv HMP Proqram and Research
Prior to or concurrently with the
recordation of the first final subdivision tract map for
development within the Impact Areas related to the Project,
Fieldstone shall pay:
05-16-95 F:\WPDOC\01\2110\AGRIAl.RD1 36
(1) to the City a sum of money, not tc
exceed one hundred fifty thousand dollars
($150,000) , determined by the City as
necessary to fund the HMP Program; and,
(2) to a person or entity, approved b:
FWS and DFG, the sum of fifty thousand
dollars ($50,000) to conduct research
regarding the Conservation of the
Gnatcatcher and CSS habitat.
2. Fundin? of Long-term MaintFdof
I-
Conserved Habitat
a. Budset - for Lons-term Maintenance and
Limit of Fieldstone Oblisation
Included in the Addenda to the HCP/OMSP is
the Budget for the annual costs with respect to the long-
term operation and management of the Conserved Habitat.
From and after the conveyance of the Conserved Habitat,
respectively, pursuant to Section V.A., above, Fieldstone
shall have no further obligation to incur or pay any costs
or expenses with respect to the Conserved Habitat, provided
that, and subject to the approval of FWS, a source of
funding has been established that will provide permanent
05-16-95 F:\WPDOC\01\2110\AGRIAl .RD1 37
funding in the amount of the aggregate of the costs set
forth in the Budget. The following funding sources may be
considered:
(1) an assessment or tax, such as, fo:
example, an assessment pursuant to the
Habitat Maintenance Funding Act (Section
2900 et seq. of the California Fish and Gam
Code) for a period of thirty (30) years;
(2) as to the Conserved Habitat only,
a covenant running with th&dburdening
the residential development within the Plan
Area similar to that provided in the San
Bruno Mountain Habitat Conservation Plan an
Implementation Agreement; and,
'7
(3) an endowment fund for such purpos
held by the City, Conservation Entity or, a
to the Conserved Habitat only, a homeowners
association, holding fee title to the
Conserved Habitat in an amount that when
invested at an interest rate of 6% would
provide an annual income (exclusive of
principal) equal to the annual costs set
. 05-16-95 F:\WPDOC\01\2110\AGRIAl.RD1 38
forth in the Budget adjusted from time to
time for anticipated inflation.
Upon conveyance of fee title and
establishing a long-term source of funding
acceptable to FWS for the permanent
maintenance of the Conserved Habitat, in
accordance with this Section and Section
V.A. hereinabove, Fieldstone shall thereupoi
and without further action of the Parties bc
released from its obligations under this
Agreement with respect to -Arther
maintenance of the Conserved Habitat.
Concurrently therewith or thereafter and
upon the request by Fieldstone, FWS, DFG anc
the City shall execute and deliver to
Fieldstone a written release of Fieldstone
confirming the foregoing. Nothing herein
shall be interpreted to release or require
the release of Fieldstone for any liability
for any breach in the performance of its
obligations hereunder occurring prior to
said transfer.
-
05- 16-95 F:\WPDOC\01\2110\AGRIAl.RD1 39
b. Public Efforts to Provide Lonq Term
Fundinq
The City may consider any proposal to
utilize public funding mechanisms for the long-term
conservation of the Conserved Habitat under the HMP or MHCP
by use of funds available for Wildlife Conservation
purposes, including, but not limited to taxes, assessments
(such as those under the Habitat Maintenance Funding Act),
levies, grants or other funding provided from public
sources, including without limitation, the federal
government, State, and the NCCP Program. lidadevent that
the City chooses to fund the implementation o< the HCPjOMSP
as set forth in this Section by use of taxes, assessments o
levies that will affect the Project, Fieldstone shall, in
accordance with applicable law, cooperate with the City to
establish, and shall consent to, the imposition of
reasonable taxes, assessments or levies encumbering the
Impact Areas, but in no event exceeding $50.00 per residenc
or parcel per year (adjusted from time to time based on
changes in the Consumer Price Index (llCPI1l) for the Los
Angeles/Anaheim/ Riverside All Urban Consumers Index
published by the U.S. Department of Labor).
’ -7
05 - 16- 95 F:\WPDOC\01\211O\AGRIAI.RDI 40
c. Fundins throush Homeowners Association
and Endowment
It is acknowledged that it is preferable foi
the maintenance of the Conserved Habitat to be undertaken b]
a Conservation Entity other than a homeowners association
and, accordingly, it is anticipated that public funding wil.
be pr.ovided for the maintenance of the Conserved Habitat as
provided above and shall be provided to the extent that
public funding generally is provided for the maintenance of
other lands to be conserved as habitat within the City. Thi
covenants effecting the charge, if covenants / are utilized,
/-
shall also provide that the charge shall be reduced and
offset to the extent that a tax or benefit or impact
assessment is levied on or with respect to any residences
subject to said pro-rata charge, or any private or public
funds become available, to provide for the maintenance of
the Conserved Habitat.
E. CONDITION PRECEDENT TO PERFORMANCE
It is condition precedent to the obligations of
Fieldstone to convey the Conserved Habitat, acquire and
convey the Offsite Mitigation Parcel, and pay the monies
required under this Article V and to the authorization to
Fieldstone and the City to incidentally Take any Liztcd
05- 16-95 F:\WPDOC\01\2110\AGRIA1.RD1 41
Species of Concern, that this Agreement and the Development:
Agreement have been entered into and are in full force and
effect, free of all outstanding litigation attacking the
validity or effect of this Agreement or the Development
Agreement. The Parties shall in good faith cooperate in thi
expeditious consideration and adoption by the City of the
Development Agreement. The conditions precedent set forth
in this Section are for the benefit of and may be waived by
Fieldstone.
VI. CITY HMP; ADDITIONAL CONSERVATION; LONG-TERM
MAG- OF CONSERVED WITAT m REmTE-diAEs
f --
A. CITY HMP
City shall use its best efforts to expeditiously
complete the HMP in accordance with the NCCP Program.
B. ADDITIONAL CONSERVATION TO BE PROVIDED UNDER
HMp
1. Aca-uisition of Lands within the
Corridor between Carlsbad and the San Diemito
Riverpark Plannins - Area
05-16-95 F:\UPDOC\01\2110\AGRIAl.RD1 42
In the pre-permitting review of the
HCP/OMSP, a concern was raised regarding the tradeoff
requested by FWS, which is now reflected in the HCP/OMSP
(increasing Fieldstone‘s dedication of onsite acquisition 01
southern maritime chaparral and decreasing the then proposec
offsite acquisition of 240 acres of Gnatcatcher habitat).
Acknowledging the foregoing, through the HMP and the MHCP,
the City shall act as the lead agency and cause to be
conveyed to the Conservation Entity, or another conservatioi
organization approved by CDFG and FWS, to be held for
wildlife conservation uses, an additional 240 acres of land:
of value to the Gnatcatcher (as habitat or4 d4 r connectivity -
within the corridor between the City and the San Dieguito
Riverpark Planning Area ( ‘Off site Conservation Lands” ) .
These lands shall be paid for from sources available for thi
implementation of the HMP and/or MHCP (in part by Fieldston
as provided below) and shall be designated, approved and
acquired in accordance with the following:
a. Prior to the approval and recordation
of any final subdivision map for any portion of the
Northwest Subarea or any City-permitted disturbance of the
Northwest Subarea:
(1) The City, as lead agency, shall,
with the approval of FWS and CDFG, designat
05- 16-95 F:\WPDOC\01\2110\AGRIAI~RD1 43
one or more candidate parcels that would be
acceptable as the Offsite Conservation Land!
(designated and approved parcels are
hereinafter referred to as “Approved
Candidate Parcels” ) ; and,
(2) Fieldstone shall cause to be
conveyed to the Conservation Entity or
another conservation organization designate
by FWS and DFG, fee title to a portion of
the Approved Candidate Parcels which are
designated in a written nob4 d e by the City,
c
as lead agency, to Fieldstone (together wit
the conveyance of a conservation easement t
DFG over said parcel, substantially the Sam
as the conservation easement provided for i
Section V.A.l.a., above), with a purchase
price to be paid by Fieldstone of not to
exceed $1,000,000, adjusted in accordance
with the Consumer Price Index (“CPI”) for
Los Angeles/Anaheim/Riverside All Urban
Consumers Index published by the U.S.
Department of Labor, from the Effective Dat
until the end of the calendar month next
preceding the acquisition of the designated
parcel. (“Off site Mitigation Parcel”) .
05 -1 6-95 F:\UPDOC\01\2110\AGRIA1.RD1 44
City, FWS and DFG shall take all actions
reasonably requested by Fieldstone in order
to enable Fieldstone to complete said
conveyance within the reasonable time
constraints established by Fieldstone in
conjunction with the development of the
Impact Areas within the Northwest Subarea.- -
In the event that Fieldstone acuuires the
Offsite Mitisation Parcel prior to the
conveyance thereof pursuant to this
Parasraph VI.B.l.a.(2), it shall hold and
maintain said parcel in the- / ame manner as
e
provided in Section V.B. with 'respect to
Conserved Habitat.
b. The approved HMP shall identify the
Approved Candidate Parcels, any such lands that have been
acquired pursuant to the Fieldstone obligation, and the
method, source and timing of the acquisition of any Approve
Offsite Conservation Lands left to be acquired. The City,
as lead agency, shall -ewe coordinate activities so that
any remaining seek lands to be acuuired shall be acquired a
expeditiously as practicable, taking into consideration the
availability of funds under the HMP and MHCP. In any event
the City cannot commit General Fund monies to this PuTpose.
05- 16-95 F:\UPDOC\O1\211O\AGRIAl.RD1 45
c. As a condition to any conveyance
pursuant to and satisfying the requirements of this Section
VI .B., €u&&~g fsr thc ISZCJ tzzLLL mci=tcAzemc!z sf tkc pzrezl
Cameyed the followinq shall have been provided for
through the adopted HMP or MHCP, - or in a manner otherwise
approved by FWS and CDFG: (i) fundins and provision for thi
lons-term maintenance of the narcel to be conveved, in a
manner similar to the Conserved Habitat, or in the event
that the HMP or MHCP has been approved by FWS and DFG. as
provided in such approved - HMP or MHCP; and, (ii) assurances
that the parcel shall be dedicated in pemetuitv for
wildlife conservation (subject onlv to except'& approved
by FWS and CDFG).
F
2. Further Acauisition Discussions
Until the further sale of lands that it owns
within the Plan Area, Fieldstone shall continue to conduct
good faith, willing seller negotiations with the City, FWS
and CDFG for lands within the Impact Areas that may be
identified in connection with the development of the HMP an
the MHCP as high conservation value in relationship to
regional conservation; provided, however, that the foregoin
shall not be construed as conveying an option to purchase c
as a limitation on the right of Fieldstone to develop the
lands within the Impact Areas, or to sell the lands within
05 - 16-95
F:\WPDOC\01\2110\AGRIAl-RD1 46
the Impact Areas to others for development purposes, and
that the foregoing shall not be considered as fulfilling an)
mitigation requirements of Fieldstone.
3. Risht of First Refusal
Concurrent with the taking effect of this
. Agreement, Fieldstone, the City or its designee and the
holder of the deed of trust encumbering the lands owned by
Fieldstone within the Rancheros-Southeast I1 Subarea shall
have entered into a Right of First Refusal Agreement in the
form attached hereto as Exhibit 6. 4- 4
’ 3-
C, LONG TERM MAINTENANCE OF CONSERVED HABITAT
Following the conveyance of the Conserved Habitat by
Fieldstone pursuant to Section V.A., the Conservation Entit
shall manage and maintain the Conserved Habitat for wildlif
conservation purposes in accordance with this Article VI.
1. Creation of the HMP Conservancv
The City shall use its best efforts to establish
the HMP Conservancy to accept fee title to the Conserved
Habitat as the Conservation Entity for Conservation purpose
and to assume for the benefit of FWS and DFG the obligation
05- 16-95 F:\WPDOC\01\2110\AGRIA1.RDI 47
of maintaining the Conserved Habitat in accordance with thi:
Agreement and to assist the other Parties in obtaining tax,
benefit assessment or other funding for the Conservation of
such lands to provide the funding necessary to cover the
costs set forth in the Budget.
2. Annual ReDort, Prosram and Budset
Prior to February 1 of each year, the
Conservation Entity shall prepare and deliver to the
Wildlife Agencies and the City:
w 4 ’ .ST
a. a report on the management of the
Conserved Habitat during the prior year (based on a calenda
year), including information relating to the prior year
regarding: any monitoring and surveying for the Species of
Concern; expenditures by the Conservation Entity as compare
with the Budget and Budget projections prepared as part of
the pervious year program;
b. any Taking of the Species of Concern b
the Conservation Entity in the Management of the Conserved
Habitat; and,
c. a proposed program for the current yea
(and first two months of the next succeeding year),
48 05-16-95 F:\WPDOC\O1\2110\AGRIA1.RD1
including: proposed enhancement, research and monitoring
activities, together with a proposed Budget projection as
compared with the Budget and expenditures for the then past
year.
3. CooDeration of Wildlife Asencies and the
Citv
In the implementation of this Agreement and the
HCP/OMSP, the Wildlife Agencies and City, at their own cost
and expense and subject to the availability of appropriated
funds, shall observe and perform the obliga+ms T which are
to be observed or performed by them as set forth in this
Agreement.
/
.J
The Wildlife Agencies and City shall
expeditiously, in good faith using their best efforts,
cooperate with- Fieldstone in the implementation, perfomanc
and observance of the provisions, and in obtaining the
objectives of this Agreement.
include, for example: technical, monitoring (e.s., in
connection with the monitoring under permits and MOUs issue
and entered into pursuant to this Agreement) and research
assistance, consultation and advice with respect to the
maintenance of the Conserved Habitat.
Such cooperation shall
05 - 16- 95 F:\WPDOC\01\2110\AGRIA1.R01 49
4. Coordination of Conservation and Manasement
Measures with Other Conservation Prosrams
The Parties shall cooperate in expeditiously
approving the Offsite Conservation Lands to be acquired and
conveyed, as provided for in Paragraph VI.B.1. hereinabove,
in coordination 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 broader
conservation plans or programs, and Fields- €F e-and the City
/c .- and Fieldstone or the City, as appropriate, would be
thereupon subject to the restrictions of such broader plans
and programs and would have the right to participate in and
receive and apply to the implementation of the HCP/OMSP the
benefits of such plans, including but not limited to the
benefit of taxes, assessments, levies, grants or other type
of funding provided for Wildlife, acquisition, or
Conservation purposes from any public or private source,
including without limitation the State, the NCCP Program,
and the HMP Program.
05- 16-95 F:\WPDOC\01\2110\AGRIAI.RD1 50
5. Enhancement of San Marcos Creek Habitat
The parties shall use their best efforts to
encourage the Conservation of those lands in and adjacent tc
San Marcos Creek and immediately outside the Plan Area.
6, Relocation of SDG&E Easements
It is acknowledged that the Parties do not own 01
control the SDG&E easements as shown on the Map. Upon the
request of Fieldstone, the Parties shall use their best
efforts, consistent with each of their indnidual c
authorities and jurisdictions, to cooperate in the
relocation and consolidation of the southern-most SDG&E
easement into the northern-most SDG&E easement, all in a
manner that will minimize to the maximum extent practicable
the impact on the Species of Concern resulting therefrom.
Without limiting the generality of the foregoing, upon the
request of Fieldstone, the Wildlife Agencies shall consult
with the Parties in determining the most effective and
efficient ways in which to minimize and mitigate the impact
of any such consolidation on the Species of Concern.
/
05-16-95 F:\WPDOC\01\2110\AGRIA1.RD1 51
VII. UNFORESEEN CIRCUMSTANCES
A. IN GENERAL
The Parties have made every effort to anticipate the
conservation measures necessary to Conserve the Species of
Concern within the Conserved Habitat and Offsite Mitigation
Parcel and F- have consulted the best available
scientific and other information. The HCP/OMSP reduces the
potential for adverse Unforeseen Circumstances on the
Species of Concern to a level of insignificance. Should
adverse Unforeseen Circumstances result intPor-threaten, a
substantial change in the population of any Species of
Concern, as determined pursuant to the procedure outlined
below, the parties shall cooperate to resolve the adverse
impacts in accordance with this Section VII.
/
--
B. PROCEDURE FOR DETERMINING OCCURRENCE OF
UNFORESEEN CIRCUMSTANCES
As a condition precedent to making any determination
regarding the occurrence of any Unforeseen Circumstances,
the agency making the determination shall strictly comply
with the following procedure:
05-16-95 F:\UPDOC\01\2110\AGRIAl.RD1 52
1. Notice to Parties
At least thirty (30) days prior to making a
determination, the agency shall provide written notice to
the other Parties of its intention to consider making the
determination, together with a detailed statement of the
facts regarding the Unforeseen Circumstances involved and
the anticipated impact thereof on the respective Species of
Concern and all supporting information.
2. Submission of Information bv Other Parties
,l.- 4
/ .T
The other Parties shall have a meaningful
opportunity to submit information to the determining agency
and shall submit said information within thirty (30) days o
said notice. Upon written request by any Party to, and the
approval of, the determining agency, which approval will no
be unreasonably withheld, the time for submission of said
information may be extended.
3. Findinss
The agency making the determination shall have
the burden of demonstrating that Unforeseen Circumstances
exist, using the best scientific and commercial data
available. The Service’s findings must be clearly
53 05 - 16-95
F:\WPDOC\01\2110\AGRIAI.RD1
documented and based upon reliable technical information
regarding the status and habitat requirements of the
affected species.
C. RESPONSE TO OCCURRENCE OF UNFORESEEN
CIRCUMSTANCES
If a Wildlife Agency determines that Unforeseen
Circumstances have occurred in accordance with Section
VII.B., hereinabove, and that additional mitigation from
Fieldstone or the City is required to address such
circumstances, and provided that Fieldstonearfd the City
have fully complied with the terms of the HCP/OMSP, such
mitigation shall limit changes to the original terms of the
HCP/OMSP to the maximum extent possible and shall be limitel
to modifications within the Conserved Habitat and Offsite
Mitigation Parcel or to the HCP/OMSP’s operating
conservation program for the affected Species of Concern.
/Y
T
Additional mitigation requirements shall not involve the
payment of additional compensation or apply to parcels of
land available for development or land management under the
original terms of the HCP/OMSP without the consent of
Fieldstone and the City. FWS shall retain the right, as
authorized under Section 5 of the ESA, to acquire endangere
or threatened species habitat by purchase when additional
05 - 16-95 F:\WPDOC\01\2110\AGRIA1.RD1 54
conservation measures are necessary for a listed Species of
Concern under the HCP/OMSP.
I. AMENDMENTS, MINOR ADJUSTMENTS AND EMERGENCY ACTIONS
A. FURTHER ACTIONS AND AMENDMENTS
From time to time hereafter, the Parties shall executi
such instruments and other documents and take such other
actions, upon the request of the other, as may be necessary
or desirable to carry out the intent of this Agreement.
This Agreement and the HCP/OMSP shall not b< anynded or
modified in any way except by a written instrument executed
4
by the Parties. Material changes, other than Minor
Adjustments, to the HCP/OMSP shall be processed as an
amendment to the Section lO(a) permit in accordance with
CESA and ESA and permit regulations at 50 C.F.R. Parts 13
and 17 and shall be subject to appropriate environmental
review.
B. MINOR ADJUSTMENTS
Minor Adjustments in the Conservation measures under
the HCP/OMSP and this Agreement and all permits and MOUs
issued or entered into pursuant hereto , ixlw3h.5, ::itbet
.. - -----lT---- ---I- -- --- -- + U IAAVVIW-LLAY LL'-LYAVAAY AIA L-
55 05- 16-95
F:\WPDOC\01\2110\AGRIA1.RD1
, L:t-t -*A -a~--;;h-nn .,, :y- .~.~nn n t fi .LILY "L LA*& b AdILUL UAAU UbLI LLLU &I
k-t-t --A nCqn-tn n--- UJ+LUL UAAU V&&UALL LuAbcLl may be
approved by Field Supervisor of FWS, on behalf of FWS, and
Director of DFG, on behalf of DFG, and shall take effect
upon the written approval of all the Parties and without
further amendment of the HCP/OMSP, this Agreement or said
permits, and MOUs. Upon the written request for the
approval of a Minor Adjustment pursuant to this Section
VIII., the Parties shall use their best efforts to
expeditiously consider and, if appropriate, approve said
request within thirty (30) days of said request. * 4-r r- -
C. ACTIONS TO PROTECT HUMAN HEALTH AND SAFETY
Nothing in this Agreement shall be interpreted as an
additional constraint beyond those provided in law,
prohibiting Fieldstone or the City from Taking a Listed
Species of Concern in accordance with 16 U.S.C. Si 1540
(a) (3).
IX. MAG PARCEL
The HCP/OMSP as implemented by this Agreement provides
adequate Mitigation measures for potential significant
adverse impacts to the Species of Concern from the
development of the MAG Parcel. Both the HCP/OMSP and this
05- 16-95 F:\WPDOC\01\2110\AGRIAl.RD1 56
Agreement were prepared at the sole cost and expense of the
City and Fieldstone and any right of the owners or
developers of the Mag Parcel to incidentally Take any Listec
Species of Concern with respect to the Mag Parcel under the
Section lO(a) Permit and Section 2081 MOU contemplated by
this Agreement shall be derived from the City in connection
with the approval of the development of the Mag Parcel undei
the City -Regulations.
As a condition precedent to permitting or allowing the
enjoyment of the Section 10(a) Permit and Section 2081 MOU
by the Mag Parcel owners or developers, the”City shall
require: (1) the full reimbursement to Fieldstone of an
equitable portion attributable to the Mag Parcel of the
Mitigation measures and the costs and expenses related to
the preparation and implementation of the HCP/OMSP and this
Agreement as approved by Fieldstone; and, (2) the assumptio
by the owners of the Mag Parcel of the obligations under
this Agreement as they - relate to the Mag Parcel
(such as, for example, the commitment not to disturb CSS
Habitat prior to the dedication of the Conserved Habitat as
provided in Section V.A. above).
/
Notwithstanding the foregoing, the owner of the MAG Parcel
is not now and under no circumstances shall be a third part
beneficiary of this Agreement or any of the rights or
05- 16-95 F:\WPDOC\01\2110\AGRIA1.RD1 57
interests of Fieldstone or any other Party hereunder. It is
acknowledged that MAG Properties, in its discretion, may
elect not to seek or obtain from the City the benefit of the
Section lO(a) Permit, and the Section 2081 MOU, and may
independently seek to obtain such permits and authorization!
directly from the Wildlife Agencies or to otherwise comply
with applicable law, including the Wildlife Regulations. I1
such event, the Parties shall in good faith consider the
amendment of the HCP/OMSP, the Section 10(a) Permit and the
Section 2081 MOU to delete the Mag Parcel and to equitably
reduce, if appropriate, the obligations of Fieldstone
Y 4 thereunder and under this Agreement. , --
II. TERMINATION BY FIELDSTONE
Prior to the more than deminimis disturbance of any habitat
occupied by the Species of Concern within the Plan Area,
Fieldstone shall have the right, at its option, and upon
thirty (30) days written notice to the other Parties, to
terminate this Agreement in whole. Prior to more than
deminimis disturbance of any habitat occupied by a Species
of Concern within a particular Subarea, Fieldstone shall
have the right, at its option, and upon thirty (30) days
written notice to the other Parties, to terminate this
Agreement as to the affected Subarea. From and after the
effective date of such termination, the Parties shall have
05- 16-95 F:\WPDOC\Ol\2llO\AGRIAl.RD1 58
no further rights or obligations under this Agreement in
whole or, in the event that Fieldstone terminates the
Agreement with respect to a Subarea, as to the Subarea
affected.
In the event that this Agreement is terminated as to only
one Subarea, the obligations of Fieldstone to pay monies
under Section V. and to maintain the Conserved Habitat shal:
be proportionally reduced on the basis of the number of
acres of Conserved Habitat within each Subarea, except that
the acquisition and conveyance of the Offsite Mitigation
Parcel and the establishment of a source orfunding for the
permanent maintenance of said parcel, as provided for in
Section V.,7\,.2. VI.B.l.a.(2), shall be allocated entirely to
the Northwest Subarea.
4
Any such termination by Fieldstone shall be grounds for FWS
or DFG to revoke, respectively, the Section lO(a) Permit or
the Section 2081 MOU, in whole or as to the affected
Subarea.
In the event that Fieldstone has conveyed any Conserved
Habitat or other lands and paid monies with respect to the
Subarea as to which this Agreement has been terminated in
accordance with this Section X, the Parties shall cooperate
to effect an equitable reimbursement of monies paid and
59 05- 16-95 F:\WPDOC\01\2110\AGRIA1.RD1
reconveyance of the Conserved Habitat and other lands to
Fieldstone.
In the event that Fieldstone terminates this Agreement in
whole or as to any Subarea pursuant to this Section X, the
Parties shall have no further rights or obligations under
this Agreement in whole or, in the event that the
termination is only with respect to a Subarea, as to the
Subarea affected, except with respect to rights and
obligations with regard to which Fieldstone is then in
violation. In the event the termination is only with
respect to a Subarea, the provisions of thi% Kg-reement shal
remain in full force and effect as to the unaffected
Subarea.
/
XI. ENFORCEMENT AND REMEDIES
A. IN GENERAL
Except as set forth in this Agreement, the Parties
shall have all of the remedies available in equity
(including specific performance and injunctive relief) and
at law to enforce the terms of this Agreement and any
Section lO(a) Permit and Section 2081 MOU, in accordance
with and subject to the following:
60 05- 16-95 F:\WPDOC\O1\2110\AGRIAl.RD1
B. REVOCATION AND TERMINATION
FWS and DFG shall have the right to revoke, terminate
or suspend, respectively, the Section lO(a) Permit and the
Section 2081 MOU, or any other Section 10(a) permit or
Section 2081 MOU issued pursuant to this Agreement, in the
event of a material breach or violation of any such permit
or MOU, the HCP, this Agreement or governing law. The
regulations found at 50 C.F.R. §§ 13.27-13.29 shall govern
the suspension and revocation or termination of any Section
lO(a) Permit issued by FWS under this Agreement.
J;c 4
., --
C. NOTICE AND OPPORTUNITY TO CURE
Under applicable regulations or otherwise, Fieldstone
and the City shall be provided with reasonable notice of an1
an opportunity to cure any breach of any Section 10(a)
permit, Section 2081 MOU or this Agreement before a
termination of the rights of Fieldstone or the City
thereunder.
D. SEVEF?-Al3ILITY
It is contemplated that Fieldstone may convey portion
of the Impact Areas to others and that the City may develop
portions of Rancho Santa Fe Road independently of
05- 16-95 F:\WPDOC\01\2110\AGRIAI.RDl 61
Fieldstone. Accordingly, under certain circumstances the
obligations of the City and Fieldstone, and remedies with
respect to breaches thereof, shall be severed as follows.
1. Fieldstone as to Project and Plan Activitie:
and Citv as to Rancho Santa Fe Road
After'conveyance of the Conserved Habitat as
provided in Section V.A., no default by Fieldstone shall
adversely affect or be the basis for a default or the
termination or suspension of the rights of the City under
tk S~ct~c.2 A 12 (2) Tcrmit GZ Sezticz 2- th?s asreement or
the Permits and MOU with respect to the Rancho Santa Fe Roac
or the Mag Parcel; and, (2) no default by the City shall
adverselv affect the rights of, or be the basis of, a
default by - Fieldstone under the Zzctl~~ 1:::~) Z'zrrLt sr
/
+<-- ?no1 LLVIA LUUI I4W this Asreement or the Permits or MOUs, wit
respect to the Project and Plan Activities by Fieldstone.
2, Conveyance of Parcels by . Fieldstone
After the conveyance of the Conserved Habitat an
Offsite Mitigation Parcel, respectively, as provided in
Section V.A., and the conveyance of any portion or portions
of the Impact Areas by Fieldstone to a transferee or
transferees approved by the Wildlife Agencies pursuant to
05- 16-95 F:\WPDOC\O1\2110\AGRIAl.RD1 62
Section XIII-C., below, no default or act of Fieldstone or
any such transferee shall affect the rights or be the basis
for a default under or the termination or suspension of thi:
Agreement, or any fezticr: InV(2) ?zmit sr Ezcticr: 2!I-&&MW
2 -- --tn..--J 4-t- -..--.- ni- ?-.---t u uL LAALLLbu -LIALV yuLYuaAAL ALLLbL~ of the Permits or
MOUs, with respect to Fieldstone or any other transferee whc
did not so default or act ('"on-defaulting Partiesrr) or wit1
respect to any portions of the Impact Areas owned, or the
Project or Plan Activities to be undertaken with respect to
such Impact Areas, by such Non-defaulting Parties.
Notwithstanding the foregoing, the obligation to convey the
Offsite Mitigation Parcel pursuant to &et i%n -Sections
V.A.2, and VI,B.l.a.(2) shall relate to all of the Northwes
/
.I
Subarea, and any default with respect thereto will be a
basis for the termination of this Agreement and the Section
lO(a> Permit and Section 2081 MOU with respect to the
Northwest Subarea.
E. UNIOUE WILDLIFE RESOURCES; IRREPARABLE INJURY
Each Species of Concern and the Conserved Habitat are
unique and any significant adverse impact, damage or loss
with respect thereto would result in irreparable damage to
the environment. Accordingly, temporary injunctive relief,
specific performance or declaratory relief may be
63 05 - 16-95 F:\WPDOC\01\2110\AGRIA1.RDI
appropriate in certain instances involving a breach of this
Agreement.
F. NO LIMITATION IN AUTHORITY
This Agreement shall not limit the authority of FWS 0:
DFG to invoke the penalties provided in or otherwise enforct
the provisions of ESA, CESA, or any similar statutes.
XII. NO FURTHER MITIGATION
Y/ / A. NO FURTHER MITIGATION
‘f
In that the purposes of this Agreement are to provide
for the long-term reconciliation of Wildlife Conservation
and economic development with respect to the Plan Area and
Plan Activities and the maximum degree of certainty
practicable, FWS, DFG and the City shall not request,
impose, recommend or require any further Mitigation related
to impacts of the Plan Activities on the Species of Concern
or their habitat, except as expressly set forth in
Article VI1 of this Agreement with respect to Unforeseen
Circumstances. Without limiting the generality of the
foregoing, for purposes of this Agreement, the Conserved
Habitat is to be viewed as independent from the Impact
Areas, with all buffers for purposes of Wildlife
05 - 16-95 F:\WPDOC\01\2110\AGRIAl.RDI 64
Conservation being located within the Conserved Habitat. In
this regard, under no conditions shall any of the Parties
require, request or recommend that any buffers for the
Conservation of any Species of Concern be located within ani
Impact Area.
XIII. MISCELLANEOUS PROVISIONS
A. INCORPORATION OF THE HCP/OMSP
The HCP/OMSP and each of its terms are intended to be,
#Y7 and by this reference are, incorporated inZhrs - Agreement.
In the event of any direct contradiction between the terms
of this Agreement and the terms of the HCP/OMSP, the terms
of this Agreement shall control. In all other cases, the
terms of this Agreement and the terms of the HCP/OMSP shall
be interpreted as supplementary to each other. In
interpreting the HCP/OMSP, consideration shall be given to
the fact that the HCP/OMSP was not drafted as a legal
document.
B. ENTIRE AGREEMENT
This Agreement supersedes all other agreements, eithe
oral or in writing, between the Parties with respect to the
subject matter hereof, and this Agreement is fully
05- 16-95 F:\WPDOC\01\2110\AGRIAI.RD1 65
integrated in that it contains all of the covenants,
obligations, findings, determinations and agreements among
the Parties with respect to said matter. 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.
C. ASSIGNMENT AND DELEGATION
This Agreement shall be binding upon and inure to the
benefit of the Parties and their successorsYwi'd_assigns.
Upon any assignment w & delegation of the rights and
duties of this Agreement incidental to a conveyance of a
portion of the Plan Area, and with the written approval of
FWS and DFG, which shall not be unreasonably withheld, the
assignor shall be released from and shall no longer have an
obligation, responsibility, liability, covenant, right or
duty under this Agreement relating to such portions of the
/
Plan Area so conveyed& I
provided, however, that prior to the written approval with
respect to any such assisnment and delesation by FWS and DF
as provided - above, the respective - assisnor shall remain
oblisated under this Asreement and followins such
assiqnment, and notwithstandins the approval thereof by FWS
and DFG, such assignor or delegator shall remain liable for
66 05 - 16-95 F:\WPDOC\01\2110\AGRIAl.RDI
any breach of this Agreement occurring before such
assignment or delegation. Upon request by any Party, the
Parties shall expeditiously acknowledge such release in
writing .
In the event that FWS or DFG fails to urovide written
acknowledsement of such release, or a written statement of
the reasons for not providins such acknowledgement, within
thirty (30) days followins receipt of the written reauest
therefor by a Party, such release shall be deemed
acknowledsed and said non-respondins asency shall thereaftei
be estopped from denvins such release. Y 4
' -I'
It is acknowledsed that the rishts and duties of the
Permittees under anv Section 10(a) Demit are not
assisnable. Notwithstandins any of the foresoins to the
contrarv, the City's rishts and nrivileses under any Permit
and MODS issued or entered into pursuant to or as
contemplated bv this Aureement shall inure to the benefit o
the City and, subject to the satisfaction of the followinq
conditions, to successors-in-interest to Fieldstone and the
owners of the Mas Parcel, subject to full compliance with
Section IX. of this Asreement, (for pumoses of this
Section, any such successor is referred to as "Successor
Landowner"). As a condition precedent to beins able to
benefit from the City's rishts and Drivileses under any of
67 05 - 16-95 F:\WPDOC\01\2110\AGRIA1.RD1
the Permits and MOUs, the Successor Landowner shall have
fully comRlied with the followins conditions:
1. The Successor Landowner shall have been
assigned by its Dredecessor-in-interest, Fieldstone or khe
owners of the Mas Parcel (includins throush mesne
convevances), the rishts and interests of such predecessor
under and with respect to this Agreement;
2. The Successor Landowner shall have assumed
in writincr for the benefit of the Citv, FWS and CDFG, the
oblisations of its Rredecessor, Fieldstone%r -Mag Parcels,
as apnropriate, under this Asreement and the Permits and
/
MOUs with respect to the lands owned by the Successor
Landowner; and,
3. The Successor Landowner shall have been
issued a sradins or buildins permit bv the City authorizinq
the specific activities that would result in the Take of
Species of Concern as contemplated under this Asreement and
in connection therewith, shall have entered into a further
asreement with the Citv (with FWS and CDFG named therein as
beneficiaries) , D rovidincr for the sumervision bv the Citv o
said activities to assure compliance with this Asreement an
the Permits and MOU. Upon the reuuest of a Successor
68 05- 16-95 F:\WPDOC\01\2110\AGRIAl~RD1
Landowner. the City shall act exaeditiouslv to consummate
such an asreement.
In exercisins the rishts and privileses of the
City under any of the Permits and MOU, the Successor
Landowner is actins under the direct supervision and control
of the City as Permittee and Party, and the City shall take
all actions to reasonably assure that the Successor
Landowner comDlies with the Drovisions of this Aareement ani
the Permits and MOU.
/ As an alternative to relvins URC~ the rishts and
privileges of the City with respect to the Permits and MOUs,
and provided that it has been assisned the rishts and
interests under this Asreement, a Successor Landowner,
subject to compliance with Section IX if applicable, may
amply for one or more new Permits or MOUs. The Resource
Asencies shall not recruire as a condition of issuincr or
enterins into any of the new Permits and MOUs that the
Successor Landowner Rrovide anv undertakinss or mitisation
in addition to those set forth in or contemplated by this
Asreement, and shall use their best efforts to process the
Permits and MOUs within sixtv (60) daw of receipt of a
comRlete application therefor.
05- 16-95 F:\WPDOC\01\2110\AGRIAl.RDI 69
D. 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.
E. 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.
F. INDEPENDENT INVESTIGATION
Each Party represents to the other Parties that in
entering into this Agreement, it has made a careful and ful
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.
05- 16-95 F:\WPDOC\01\2110\AGRIA1.RD1 70
G. TIMING
Time is of the essence in the performance of this
Agreement.
H. 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.
/ I. ELECTED OFFICIALS NOT TO BENEFI’P” --
T
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.
J. 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 Offsite
Mitigation Parcel for purposes other than the stated
Conservation and Management purposes of this Agreement, the!
the United States, the California Attorney General and the
05-16-95 F:\WPDOC\01\2110\AGRIA1.RD1 71
citizens of California shall have standing to sue DFG for
such breach or nonconforming use. This provision shall not
be construed to grant standing to sue any Party other than
DFG to any person or entity.
K. BENEFIT OF THE AGREEMENT
Without limiting the applicability of the rights
granted to the public pursuant to the provisions of 16
U.S.C. 1540(g), the Parties intend that only the Parties to
this Agreement shall benefit from the Agreement. This
0-f Agreement shall not create in the public, 8ny member of the -T .. public, any other person or entity any rights as a third-
party beneficiary to this Agreement, nor shall it authorize
anyone not a Party to this Agreement to maintain a suit for
injuries or damages under the provisions of this Agreement.
L. EMINENT DOMAIN
Nothing herein shall be construed to limit the power
of eminent domain held by any public agency.
M. FORCE MAJEURE
In the event that a Party is wholly or partly
prevented from performing its obligations under this
05- 16-95 F:\WPDOC\01\2110\AGRIA1.RD~ 72
Agreement because of unforeseeable causes beyond the
reasonable control of and without the fault or negligence of
such Party (Ilforce 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 p F evented from , -- -,
performing gives the other Parties written notice describin!
the particulars of the occurrence;
2. the suspension of performance is of no
greater scope and no longer duration than is required by th
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 an
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; an
05-16-95 F:\WPDOC\01\2110\AGRIAl.RD1 73
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.
N. 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 asYol-lows or at
such other address that any Party may from time to time
notify the other Parties about in writing:
/
e
If to Fieldstone:
The Fieldstone/La Costa Associates
4565 Morehouse Drive, Suite 250
San Diego, California 92121
Limited Partnership
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
05- 16-95 F:\WPDOC\01\211 O\AGRIAl. RD 1 74
If to FWS:
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
and
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
4 If to DFG:
Y
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
and
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
Carlsbad, California 92009
2075 Las Palmas Drive
Re: Official Notice Concerning the City of Carlsbad/Fieldstone HCP/OMSP
05- 16-95 F:\WPDOC\01\2110\AGRIAI.RD1 75
0. 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).
P. EFFECTIVE DATE Y c=q
'7
This Agreement shall take effect as of the date of tht
issuance of the Section lO(a) Permit as contemplated by
Section IV, and shall be effective when executed by FWS, thc
City and Fieldstone with respect to the rights and duties o
those Parties and with respect to all of the Parties
thereupon or thereafter when DFG has also executed the
Agreement and issued the Section 2081 MOU. Any of the
Parties may insert the date of said issuance of the Section
10(a) Permit in the space provided therefor on page 1 of
this Agreement.
05- 16-95
F:\WPDOC\01\2110\AGRIA1-RD1 76
Q. 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.
IN WITNESS WHEREOF, the parties execute this Agreement
to be in effect as of the first written above.
1r FWS !I
UNITED STATES FISIE SERVICE dw ILDLIFE
IC
Date : By:
Approved as to form:
Date: Lynn Cox, Assistant Regional Solicitor
11 D FG ‘I
CALIFORNIA DEPARTMENT OF FISH AND
GAME
Date: By : Boyd Gibbons, Director
By :
[Signatures Continue1
77 05- 16-95 F:\UPDOC\O1\2110\AGRIAI.RD1
APPROVED AS TO FORM:
Date : Craig Manson, General Counsel
California Department of Fish and Game
I' FIELDSTONE I'
THE FIELDSTONE/LA COSTA ASSOCIATES
LIMITED PARTNERSHIP, A CALIFORNIA
LIMITED PARTNERSHIP
By: The Fieldstone Company, a California corporation General Partner
DATE : By :
John Barone Lr <
Its: Senior Proj-e%t Manaser
APPROVED AS TO FORM:
By : Lindell L. Marsh, Esq.
Siemon, Larsen & Marsh
'ITHE CITY"
THE CITY OF CARLSBAD, California
DATE : By : Bud Lewis
Its: Mayor
APPROVED AS TO FORM:
By : Ron Ball, City Attorney
78 05 - 16-95 F:\WPDOC\01\2110\AGRIA1 .RDI
EXHIBIT 1
TO THE IMPLXMENTATION AGREEMENT REGARDING
THE CITY OF CARLSBAD/F'IELDSTONE/LA COSTA ASSOCIATES
HABITAT CONSERVATION PLAN/ON-GOING MITLTI-SPECIES PLAN
Glossarv
x- / -
EXHIBIT 1
TO THE IMPLEMENTATION AGREEMENT REGARDING
HABITAT CONSERVATION PLAN/ON-GOING MULTI-SPECIES PLAN
THE CITY OF CARLSBAD/FIELDSTONE/LA COSTA ASSOCIATES
Glossary
1. Wiological Opinion" has the meaning set forth ir
2. flCEQAIl means the California Environmental Qualit1
Act (California Public Resources Code §§ 21000
promulgated pursuant thereto (including, without
limitation, 14 California Code of Regulations
§§ 15000 & a.) .
3. llCESA1r means the California Endangered Species Act (California Fish and Game Code - et -.) and the regulations prom peed in connection with that Act (including,.%ithout limitation, 14 California Code of Regulations
§§ 40, 41, 243, 670.1 and 670.5).
4. "Conservationll means the same as set forth in 16
50 CFR § 402.02.
et m.) and the guidelines and regulations
Fo50
U.S.C. § 1532.
5. rtCSSfl means coastal sage scrub.
6. "Conserved Habitat" means the On-site Conserved
Habitat and Off-site Conserved Habitat to be held
and managed for Wildlife Conservation purposes.
Game, an agency of the State of California.
8. "ESAN means the federal Endangered Species Act
(16 U.S.C. §§ 1531 & -.) and the regulations
promulgated in connection with that Act (including, without limitation, 50 C.F.R. Parts
13, 17, 402 and 424).
7. llDFGlf means the California Department of Fish ani
9. rtFWS1f means the United States Fish and Wildlife Service, an agency of the Department of Interior of the United States.
10. llGnatcatchern means the subspecies known as the PolioDtila californica californica.
05- 16-95 F:\WPDOC\01\2110\AGRIAI~RD1 79
I ~.
11. IlImpact Area" and flSmpact Areas" mean,
respectively, a portion or portions of the Plan Area, as shown on the Map, which are excluded fron
Conserved Habitat and will be developed as a part of the Project .
thereunder as Ilthreatenedll or ttendangeredll ; and,
with respect to CESA, listed thereunder as
"threatenedll or "endangered" or a "candidate" for such listing.
13. WBTA 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.
12, I1ListedN means: with respect to ESA, listed
14. 'WXCP Program" means the program sponsored by thc North County Wildlife Forum of San Diego County, in cooperation with FWS and DFG and in accordance
with the NCCP Program, for research a development of a subregional Muli& 8 .e-Habitat Conservation Plan for the conservation of multipli types of habitat and sensitive species that occup or use lands located within northern San Diego
County.
15. WBTAN means the Migratory Bird Treaty Act, 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.
16. WBTA Permitf1 means a permit issued under the MBTA .
17, WitigationN has the same meaning as set forth i CEQA (14 Cal. Code of Regulations § 15370) and in NEPA (40 C.F.R. § 1508.20), and includes, among other things, the designation or reservation of land as open space or funding to provide for the
Conservation of the Species of Concern.
18. "NCCPff means a natural community conservation
plan prepared pursuant to the NCCP Act.
19. WCCP Actt1 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 Coc
§§ 2800 et m.) .
80 05 - 16-95 F:\WPDOC\O1\211O\AGRIA1.RDI
20. WCCP Programff means the pilot program of the
California Resources Agency and DFG under the NCCE Act undertaken 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.
21. NNEPAff means the National Environmental Policy Act of 1969 (42 U.S.C. 5s 4321 et u.) and the regulations promulgated in connection with that Act (including, without limitation, 40 C.F.R.
§§ 1500 & sea.).
entities and agencies, or one of the entities or agencies, that have executed this Agreement.
23. "Permittee" and ffPermitteesff mean, respectively,
the entity or entities entitled to the benefit of
any authorization of Take pursuant to a
Section Z+E& 2835, Section 2081 MOUJMBTA Permii
issued pursuant to this Agreemen= and may includc
one or all of the City, Fieldstone'an-d the owner of the MAG Parcel, as set forth in this Agreement
22. ffPartiesff and ffPartyff mean, respectively, the
Section 10 (a) Permit, Incidental Take Statement,
25. "Section 4(d)lf means Section 4(d) of ESA, 16 U.S.C. § 1533(d).
26. ffSection ZO(a)ff means Section lO(a) of ESA, 16 U.S.C. § 1539, and the rules, regulations, or guidelines promulgated in connection with that statutory provision, including, without limitatio.
50 C.F.R. § 17.22.
27. ffSection 10(a) Permit" means: (1) a permit issue under Section 10(a) (1) (B) of ESA (16 U.S.C.
§ 1539(a) (1) (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.
28. ffSection 208Zff means California Fish and Game
Code § 2081, and any rules, regulations, or guidelines promulgated in connection with that statutory provision.
memorandum of understanding entered into by DFG under Section 2081 and consistent with CESA authorizing the Take of a Species of Concern
29. "Section 2081 MOUff or WOU" means: (1) a
ai 05 - 16-95 F : \WPDOC\O1\2110\AGR I A1 .RD1
Listed under CESA; or (2) permission or authorization under any other state law or
regulation, including, without limitation Section
2835, that permits the Take of a Species of
Concern Listed under CESA or provided with protection under new or revised State laws substantially similar in effect to the protection provided under CESA.
30. "Section 2835" means California Fish and Game
Code § 2835, and any rules, regulations or
guidelines promulgated in connection with that
statutory provision.
31. Take1r and Taking1' mean the same as set forth iI ESA on the Effective Date.
32. "Unforeseen Circumstance" means an extraordinary
circumstance taking into consideration, or change in, existing or anticipated biological conditions (including a circumstance or change disclosed in public comments on future permit ap pations,
consultations and rules) that: (3 1-s -significant and adverse with respect to the contiaued existence of a Species of Concern; and, (ii) was reasonably unforeseen by the Wildlife Agencies as of the Effective Date.
33. Wildlifer1 means all wild animals, birds, plants fish, amphibians, reptiles and related habitat an ecological communities upon which such wildlife depends.
34. Wildlife Agency" or Wildlife Agenciesft means, respectively, either or both of FWS or DFG, as th context requires.
a2 05-16-95
F:\WPDOC\01\2110\AGRIA1.RD1
EXHIBIT 2
TO THE IMPLEMENTATION AGREEMENT REGARDING
THE CITY OF CARLSBAD/FIEIIl)STONELA COSTA
ASSOCIATES HABITAT CONSERVATION FLAN/ON-GOING
MULTI-SPECIES PLAN
The MaD
Y 4
' -7- .,
EXHIBIT 3
TO THE IMPLEMENTATION AGREEMENT REGARDING
THE CITY OF CARISBAD/FIELDSTONE/LA COSTA ASSOCIATES
HABITAT CONSERVATION PLAN/ON-GOING MULTI-SPECIES PLAN
List of Species of Concern
from Approved Habitat Conservation Plan
Hv /
,_
EXHIBIT 0
TO THE IMPLEMENTATION AGREEMENT REGARDING THE CITY OF CARLSBAD/FIEIIl)STONE/LA COSTA ASSOCIATES
HABITAT CONSERVATION PLAN/ON-GOING MULTI-SPECIES PLAN
Findings and Determinations
Tr 4
7-
EXHIBIT 4
TO THE IMPLEMENTATION AGREEMENT REGARDING
THE CITY OF CARLSBAD/FIELDSTONE/LA COSTA ASSOCIATES
HABITAT CONSERVATION PLAN/ON-GOING MULTI-SPECIES PLAN
Findinss and Determinations
FINDINGS AND DETERMINATIONS. The terms used in this Exhibit
have the same meaning as set forth in the Agreement.
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 17,22(b) (2) and Section 17.32(b
respect to the HCP/OMSP as implemented by thig Agreement:
connection with the Plan Activities will be incidental to ar
otherwise lawful activity;
Concern will be, to the maximum extent practicable, minimized and mitigated;
particularly, FWS has found and determined* 19,d"'- at,- with More
1. the taking of the Species of Concern in
2. the impacts of such taking of the Species of
3. Fieldstone and the City have ensured that adequate funding for the implementation of the HCP/OMSP will be provided through this Agreement;
4. Fieldstone and the City have ensured that adequate procedures to deal with Unforeseen Circumstances are provided through this Agreement;
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
5. the taking of the Species of Concern in
Concern in the wild;
6. all measures required by FWS as necessary or appropriate for purposes of the HCP/OMSP are provided for ii and implemented by this Agreement;
05 - 16-95 F:\WPDOC\01\2110\AGRIAI.RDl 85
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 determined that the foregoing findings and determinations are in accordance wit1
ESA.
B. FINDINGS AND DETERMINATIONS BY FWS UNDER THE MBTA
FWS has considered the anticipated nature and
geographic scope of the Plan Activities, including the impacts of the Plan Activities on birds and species covered
Fieldstone and the City under this Agreemem and has determined that, based upon the measures contained in the HCP/OMSP as implemented by this Agreement, MBTA Permits allowing Take of the birds covered by the MBTA in connectior with the Plan Activities shall be issued concurrently herewith and thereafter upon appropriate application, to the Permittees.
by the MBTA, and has considered the assurances,-grovided to
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 the
NCCP Act. More particularly, DFG has found and determined that with respect to the HCP/OMSP as implemented by this
Agreement:
FINDINGS 1-8 ARE DRAWN FROM DFG GUIDELINES FOR NO JEOPARDY
DETERMINATIONS. DFG SHOULD CONSIDER WHETHER TO MAKE THE
FINDINGS WITH RESPECT TO THIS 2081. DFG TYPICALLY MAKES T
FINDINGS FOR 2090 CONSULTATIONS AND COULD MAKE THEM UNDER
FOR 2081 PERMITS.
05-16-95 F:\WPDOC\01\2110\AGRIAI.RDl 86
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.
be significantly diminished by the Plan Activities.
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.
2. The range of the Species of Concern will not
3. The habitat used by the Species of Concern
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 Pla ctivities 2 will not adversely affect plans for recovery or eventual
delisting of any Species of Concern currently.1-isted as "endangeredIf or I1threatened1l 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.
will not result in the extinction of the Species of Concern
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.
8. Take in connection with the Plan Activities
9.
FINDINGS 11-13 ARE DERIVED DIRECTLY FROM SECTION 1 OF A.B.
2172 (UNCODIFIED) AND CAL. FISH AND GAME CODE SECTION 2805
WHICH ARE THE PROVISIONS OF THE NCCP ACT THAT ESTABLISH T€ PURPOSES OF NCCP PLANS
87 05-16-95 F:\WPDOC\01\2110\AGRIAl.RDI
11. The HCP/OMSP as implemented by this Agreement will, to the maximum extent feasible, avoid, minimize and 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 tc
the level necessary to maintain, in conjunction with the
those biological communities impacted by the Plan
Activities.
HMP, MHCP and the NCCP Program, the continued viability of
13. The HCP/OMSP, as independent initial component of the HMP, and together with the HMP, component of the MHCP, provides for area-wide protection anc 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 In this context, the HCP/OMSP as implemented%$?his Agreement also serves to further regional wildELfe
conservation planning, which can effectively address cumulative impact concerns, minimize wildlife habitat fragmentation, promote multispecies management and
conservation, identify and ensure appropriate mitigation fo impacts on fish and wildlife, and promote the conservation of broad based natural communities and species diversity.
The HCP/OMSP as implemented by this Agreemen 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 insignificanc as required by CEQA.
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
FINDINGS AND DETERMINATIONS BY THE CITY
as a .
e NCCP Act
14.
(a) The HCP/OMSP as implemented by this
D.
The City has balanced the environmental, health, safet and socioeconomic attributes of the Project and has considered all identifiable alternatives to and minimizatic
and Mitigation measures for the Project, and has found and determined that:
05- 16-95 88 F:\WPDOC\01\2110\AGRIAI.RD1
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 Regulations;
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;
provides that an adequate management reporting and
monitoring program for the HCP/OMSP Conservation and Management measures will be implemented as required by CEQA
significant benefit to goals and purposes of the HMP.
2. The HCP/OMSP as implemented by this Agreement
3. The HCP/OMSP as implemented by this Agreement
4. The implementation of the HCP/OMSP provides
/ w/
c
89 05-16-95
F:\WPDOC\01\2110\AGRIA1.RD1
EXHIBIT 5
TO THE IMPLEMENTATION AGREEMENT REGARDING THE CITY OF CARISBAD/FIELDSTO~/LA COSTA ASSOCIATES
HABrrAT CONSERVATION PLAN/ON-GOING MULTI-SPECIES PLAN
Form of Conservation Easement
-6
‘T .-
WHEN RECORDED RETURN TO:
Craig Manson, Esq. General Counsel California Department of
Fish and Game
1416 Ninth Street Sacramento, California 95814
NO DOCUMENTARY TRANSFER TAX
California Revenue & Taxati
Code § 11922 Presented for Acceptance bl California Department of Fi and Game
lir 4
This space for Recorder's Use Only
RECITALS
WHEREAS, Grantor is the owner in fee, subject to
matters of record, of approximately - acres of land locate
in the City of Carlsbad, County of San Diego, State of
California , more particularly described in Exhibit A
attached hereto and incorporated herein by this reference
("Conserved Habitat Lands") and
WHEREAS, pursuant to that certain Habitat
Conservation Plan/Onsoinq Multi-SDecies Plan for Pronerties
in the South East Ouadrant of the Citv of C d sbad and
'Y
Addenda dated , and the related Implementation
Agreement, among Fieldstone/La Costa Associates Limited
Partnership, the City of Carlsbad, the United States Fish ar
Wildlife Service and Grantee dated Imp1 ement a t ic
Agreement ("Implementation Agreement"), the Grantor desires
to transfer and convey to Grantee and Grantee desires to
accept the conservation easement described hereinbelow
(llConservation Easement1!), on and subject to the terms and
conditions set forth below; and,
WHEREAS, Grantee is an agency formed under the la
of the State of California with jurisdiction over the
conservation, protection, and management of fish, wildlife,
native plants, and habitat necessary for biologically
91 05- 16-95
F:\WPDOC\O1\2110\AGRIAI.RD1
sustainable populations of those species (California Fish an(
Game Code Section 1802) and is authorized to hold
conservation easements for these purposes (California Fish
and Game Code Section 2052); and
WHEREAS, Grantor desires to assure Grantee that
Grantor will hold the Conserved Habitat Lands conveyed herek
for the conservation of the Species of Concern, as that tern
is defined in the Implementation Agreement in accordance wit
and subject to the terms and conditions of this Deed;
NOW, THEREFORE, for and in consid / ation of the ,--
facts recited above, the mutual covenants, terms, condition:
and restrictions contained herein, and pursuant to the laws
of California and California Civil Code Sections 815 througl
816, inclusive, Grantor hereby grants, assigns, transfers ai
conveys to Grantee, and Grantee hereby accepts, a
conservation easement (I1ConserYation Easement1'), as defined
in Paragraph 2. below, in perpetuity in and over the
Conserved Habitat Lands, resewinq to Grantor and excentinq
therefrom, all rights, title and interest in and with respe
to the Conserved Habitat Lands of every kind and nature tha
are not expressly included in the Conservation Easement.
1. Pumose. The purpose of this Conservation Easeme
is to assure Grantee that, except as provided in Paragraph
92 OS-16-9s
F : \WPDOC\O1\211 O\AGRI A1 . RDI
hereinbelow, the Conserved Habitat Lands shall be held and
used only for conservation of the Species of Concern and
their habitat, including but not limited to compatible
educational uses, subject to the provisions of the
Implementation Agreement.
2. Conservation Easement. The Conservation Easement
includes the prohibitions and limitations on the use of the
Conserved Habitat Lands set forth in Paragraph 2.1. below an
the rights set forth in Paragraph 2.2. below, together with
the other rights and interests provided to Grantee herein. -4
’ -7
2.1. Prohibited Uses. Except as provided in
Paragraph 3, without the written approval of Grantee and
USFWS, the Conserved Habitat Lands shall not be used for any
purpose or use other than the conservation of the Species of
Concern and their habitat and compatible educational
purposes.
2.2. Rishts of Grantee. As an incident of the
Conservation Easement, the Grantee shall have the right to:
2.2.1. Prevent the Conserved Habitat Lands
from being used for uses or purposes in violation of
Paragraph 2.1. above;
93 05- 16-95 F:\WPDOC\01\2110\AGRIA1.RD1
2.2.2. Enter upon the Conserved Habitat Land
to enforce at the sole cost of Grantor and pursuant to the
terms and conditions of this Deed the restoration of such
areas or features of the Conserved Habitat Lands as may be
damaged by such activities; and
2.2.3. Enter upon the Conserved Habitat Land
at reasonable times to monitor compliance with Paragraph 2.1
above and for scientific study purposes; provided, however,
that such entry shall be upon the prior reasonable notice to
Grantor or its successor.
r* 4
I -7
3 * Reservations and Excemions. Notwithstanding any
other provisions of this Deed, Grantor has reserved and then
is excepted from the grant, transfer, assignment and
conveyance of the Conservation Easement hereunder the right
to engage in and to allow, permit or invite others to engage
in all uses of the Conserved Habitat Lands that are not
expressly prohibited herein and are not inconsistent with thc
purpose of this Conservation Easement.
4. Grantee’s Remedies. In addition to any and all
other remedies available to Grantee in law or in equity,
Grantor intends that the remedies set forth in this Section
shall be available to Grantee and to the USFWS, as an
expressly identified third party beneficiary of this Deed. I.
05 - 16-95
F:\WPDOC\01\2110\AGRIAl.RDl 94
Grantee determines that the Grantor or its successor has
taken or threatens to take action that is in violation of th
terms of this Conservation Easement, Grantee shall give the
then record fee title owners of the Conserved Habitat Lands
written notice of such actual or threatened violation and
shall demand in writing that said violation be cured or
prevented. In the event that said violation is not cured
within thirty (30) days from the date of said written notice
or, in the event that said cure would require more than
thirty (30) days to complete and action is not commenced
promptly and pursued expeditiously to effect said cure,
Grantee may take any such action and seek any remedies
available at law or equity to enforce the provisions of this
Conservation Easement, including, but not limited to, the
seeking of money damages, temporary or permanent injunctions
or other equitable relief (including, but not limited to, tk
restoration of any condition that existed within the
Conserved Habitat Lands prior to said violation).
A
'T
Notwithstanding the foregoing, Grantee shall not be
required to provide Grantor with written notice of an actual
or threatened violation or demand the cure thereof if Grantc
determines that provision of such written notice and demand
of cure will result in significant and unacceptable delay oi
commencement of a cure to such actual or threatened
violation. In such cases, Grantee may proceed in any actio1
05- 16-95
F:\WPDOC\01\2710\AGR~Al.RD1 95
at law or in equity as provided above without delay and
without giving said written notice and demand of cure.
Grantor acknowledges that Grantee’s remedies at law for a
violation of this Conservation Easement would be inadequate
and that Grantee would be entitled to injunctive relief, bot
prohibitive and affirmative, including specific performance
of the terms of this Conservation Easement, without the
necessity of proving either actual damages or the inadequacy
of otherwise available legal remedies. Grantee’s remedies
under this Conservation Easement shall be cumulative and in
addition to all remedies now or hereafter existing at law 01
in equity, including, but not limited to, t / remedies set
forth in California Civil Code Sections 815 through 816,
inclusive.
,-
5. Costs of Enforcement. Any costs incurred by eithc
party in enforcing the terms of this Conservation Easement
against the other, including, without limitation, costs of
suit and reasonable attorney‘s fees, and any costs of
restoration of the Conserved Habitat necessitated by a
violation of the terms of this Conservation Easement shall 3:
borne by the breaching party.
action (including appeals therefrom) to enforce the terms of
this Conservation Easement, such party’s reasonable costs of
suit including, without limitation, actual attorney‘s fees,
shall be borne by the other party, except that the USFWS’s
If a party prevails in any
05 - 16-95 F:\WPDOC\01\2110\AGRIAl.RD1 96
liability for any attorneys fees and costs shall be
determined in accordance with federal law.
6. Grantee’s Discretion. Enforcement of the terms of
this Conservation Easement requiring performance by Grantor
shall be at the discretion of Grantee.
Grantee to exercise its rights under this Conservation
Easement in the event of any breach of this Conservation
Easement by Grantor shall not be deemed to be a waiver by
Grantee of such rights or rights under this Conservation
Easement. No delay or omission by Grantee in the exercise c
any right or remedy upon breach by Grantor ma11 impair such
right or remedy or be construed as a waiver.
Any forbearance by
/
T
7. Acts Bevond Grantor’s Control. Nothing contained
in this Deed shall be construed to provide a right to Grant€
to bring any action against Grantor for any injury to or
change in the Conserved Habitat Lands resulting from causes
beyond Grantor’s control, including without limitation, the
acts of third parties, fire, flood, storm, earth movement, c
any other natural disaster, any act or omission of Grantee,
or from any reasonable action taken by Grantor under
emergency conditions to prevent, abate, or mitigate
significant injury to the Conserved Habitat Lands resulting
from such causes.
05- 16-95
F:\WPDOC\01\2110\AGRIAl.RD1 97
8. Access. This Conservation Easement does not convc
a general right of access to the public, however, access for
scientific research and interpretive purposes is conveyed tc
Grantee or its designee pursuant to Paragraph 2.2.3. above.
9. Costs and Liabilities. Grantor or its successor
shall retain all responsibilities and shall bear all costs
and liabilities of any kind related to the ownership,
operation, upkeep and maintenance of the Conserved Habitat
Lands, including the following:
9.1. Taxes. Grantor shall pay b / ore-delinquencl --
all taxes, assessments, fees, and charges of whatever
description levied on or assessed against the Conserved
Habitat Lands by competent authority (collectively I'taxesll) ,
including any taxes imposed upon, or incurred as a result of
this Conservation Easement, and shall furnish Grantee with
satisfactory evidence of payment upon request.
9.2. Hold Harmless. Grantor or its successor
shall hold harmless, indemnify, and defend Grantee and its
members, directors, officers, employees, agents, and
contractors and the heirs, personal representatives,
successors, and assigns of each of them (collectively
I1Indemnified Parties") from and against all liabilities,
penalties, costs, losses, damages, expense, causes of actior
05- 16-95
F:\WPDOC\01\211O\AGRIA1.RDl 98
claims, demands, or judgments, including without limitation,
reasonable attorney’s fees, arising from or in any way
connected with:
physical damages to any property, resulting from any act,
omission, condition, or other matter occurring on the
Conserved Habitat Lands, unless caused by the acts or
(1) injury to or the death of any person, c
omissions of any of the Indemnified Parties; and (2) the
existence or administration of this Conservation Easement.
9.3. Condemnation. If this Conservation Easement
is taken, in whole or in part, by exercise of the power of
eminent domain, Grantee shall be entitled te / compensation -.
from the condemning authority in accordance with applicable
law.
IO. Assiqnment. This Conservation Easement is
transferable, but Grantee shall give Grantor at least thirty
(30) days prior written notice of the transfer. Grantee may
assign its rights and obligations under this Conservation
Easement only to an organization that is a qualified
organization at the time of transfer under Section 170(b)
the United States Internal Revenue Code of 1954,
(or any successor provision then applicable),
applicable regulations promulgated thereunder,
authorized to acquire and hold conservation easements under
California Civil Code Section 815, et m.
of
as amended
and the
and is
Grantee shall nc
05- 16-95
F:\WPDOC\O?\2110\AGRIAI.RDl 99
assign its rights and obligations under this Conservation
Easement without prior written consent of the Grantor and
USFWS, which consent shall not be unreasonably withheld. AE
a condition of such transfer, Grantee shall require that the
Conservation Easement be used only for the purposes describe
in Paragraph 1. above.
11. Subsequent Transfers. Grantor shall include a
description of the terms of this Conservation Easement in an
deed or other legal instrument by which it divests itself of
any interest in all or a portion of the Conserved Habitat
Lands, including, without limitation, a lease 6 old interest.
Grantor shall give written notice to Grantee of the transfer
of any interest at least fifteen (15) days prior to the date
of such transfer. The failure of Grantor to perform any act
required by this Paragraph 11 shall not impair the validity
of this Conservation Easement or limit its enforceability ir
any way.
12. EstoDDel Certificates. Upon request by Grantor,
Grantee shall within fifteen (15) days execute and deliver t
Grantor any document, including estoppel certificates, that
certify Grantor’s compliance with any obligation of Grantor
contained in this Conservation Easement and otherwise
evidences the status of this Conservation Easement as may be
requested by Grantor.
05- 16-95
F:\WPDOC\01\2110\AGRIAI.RDI 100
13. Notices. Any notice, demand, request, consent,
approval, or communication that either party desires or is
required to give to the other shall be in writing and either
served personally or sent by certified mail with postage
prepaid, return receipt requested, addressed as follows:
To Grantor:
To Grantee:
Regional Manager
Department of Fish and Game State of California
3330 Golden Shore, Suite 50
Long Beach, CA 90802
with the following note on the envelope:
/ a== --
Official Notice Resardins Fieldstone/Carlsbad
Conservation Easement Deed
TO USFWS:
Regional Director United States Fish and Wildlife Service Portland Eastside Federal Complex
911 N.E. 11th Avenue
Portland, Oregon 97232
with the following note on the envelope:
Official Notice Reqarding Fieldstone/Carlsbad Conservatio Easement Deed
or to such other address as either party from time to time
shall designate by written notice to the other. Notice shal
05 - 16-95
F: \WPOOC\Ol\2110\AGRIA1 .RDI 101
be deemed effective in the case of personal delivery, upon
delivery, and in the case of certified mail, five (5) days
after deposit in the United States mail.
14. Recordation. Upon execution, Grantee shall
promptly record this instrument in the official records of
San Diego County, California and may re-record it at any tin
as may be required to preserve its rights in this
Conservation Easement.
15. General Provisions.
x-. N
15.1. Controllins Law. The interpretation and
performance of this Deed shall be governed by the laws of th
State of California.
15.2. Liberal Construction. Any general rule
of construction to the contrary notwithstanding,
shall be liberally construed to effect the purpose of the
Conservation Easement and the policy and purpose of
California Civil Code Sections 815 through 816,
If any provision in this Deed is found to be ambiguous,
interpretation consistent with the purposes of the
Conservation Easement that would render the provision valid
shall be favored over any interpretation that would render i
invalid.
this Deed
inclusive.
an
05- 16-95
F:\WPDOC\01\2110\AGRIAl.RD1 102
15.3. Severability. If any provision of this
Deed, or the application thereof to any person or
circumstance, is found to be invalid, the remainder of the
provisions of this Deed, or the application of such provisio
t0 persons or circumstances other than those as to which it
is found to be invalid, as the case may be,
affected thereby.
shall not be
15.4, Entire Asreement. This instrument sets
forth the entire agreement of the parties with respect to
this Deed, and supersedes all prior discussions,
negotiations, understandings, or agreements”re1atlng /. to this
’7
Deed, all of which are merged herein.
15.5. Modifications. Any alterations, changes
or modifications of or to this Deed, to be effective, shall
require the approval of USFWS, shall be made in writing and
shall be executed by all parties.
15.6. No Forfeiture, Nothing contained herein
will result in a forfeiture or reversion of Grantor’s title
in any respect.
15.7. Successors. The covenants, terms,
conditions, and restrictions of this Deed shall be binding
upon, and inure to the benefit of, the parties hereto and
05-16-95
F:\WPDOC\O~\211O\AGRIA1.RDl 103
their respective personal representatives, heirs, successors
and assigns and shall continue as a servitude running in
perpetuity with the Conserved Habitat.
hereunder benefiting Grantee shall also benefit the United
States Fish and Wildlife Service. Upon conveyance of its
right, title and interest in and to the Conserved Habitat
Lands, the Grantor shall have no further obligation hereunde
except with respect to breaches thereon that have occurred
prior to said conveyance.
The covenants
15.8. CaDtions. The captions in this Deed hav
been inserted solely for reference and are &part of thi
Deed and shall have no effect upon its construction or
interpretation.
’ .+-
15.9. Counterparts. The parties may execute
this Deed in two counterparts, which shall, in the aggregate
be signed by both parties; each counterpart shall be deemed
an original instrument as against any party who has signed
05- 16-95
F:\WPDOC\01\2110\AGRIA1.RD1 104
it.
produced, the recorded counterpart shall be controlling.
In the event of any disparity between the counterparts
IN WITNESS WHEREOF Grantor and Grantee have
entered into this Deed the day and year first above written.
GRANTOR :
By :
4 s.. GRANTEE :
DEPARTMENT OF FISH AND GAME
SACRAMENTO, CALIFORNIA
c
By :
Approved as to form
Craig Manson, Legal Advisor
California Department of Fish and Game
05 - 16-95
F:\WPDOC\01\2110\AGRIAl.RDl 105
EXHIBIT A
Description of Conserved Habitat Lands
IC<
/- ..
05-16-95
F:\WPDOC\01\2110\AGRIA1.RDl 106
EXHIBIT 6
TO THE IMPLEMENTATION AGREEMENT REGARDING
THE CITY OF CARLSBAD/FIEL;DSTONE/LA COSTA ASSOCIATES
HABITAT CONSERVATION PLANlON-GOING ~'v~ULTI-SPECIES PLAN
Form of Right of First Refusal Agreement
w 4
' T
EXHIBIT 6
TO THE IMPLEMENTATION AGREEMENT REGARDING
THE CITY OF CARLSBAD/FIELDSTONE/LA COSTA ASSOCIATES
HABITAT CONSERVATION PLAN/ON-GOING MULTI-SPECIES PLAN
Form of Ricrht of First Refusal Agreement
THIS AGREEMENT is made and entered into as of April -,
1995, by and among Fieldstone/La Costa Associates, a
California Limited Partnership ("Fieldstone"), the
a municipal corporation ("City") , whereby, based on the
following recitals of fact, the parties hereby agree as
follows *
I ("Lender") ; and, the City of Carlsbad,
s- / --
Recitals
This Agreement is based on the following facts:
A. This Agreement is entered into pursuant to
Section VI.B.3. of that certain agreement among the
Fieldstone, City and others entitled "Implementation
ne /La Aareeme nt Regardina The City of Ca rlsbad/ Fieldsto
Costa Assoc iates Habitat Conser vation Plan/On-going Multi-SDecies Plan" ("IA") , whereby Fieldstone has
agreed to provide, and cause Lender to provide, City
with a right of first refusal for a certain period of
time with respect to possible conveyances by Fieldstone
or Lender of the Rancheros-Southeast I1 Subarea, as
described in the IA and shown on the map included as
Exhibit A hereto, exclusive of Conserved Habitat, the
Rancho Santa Fe Road Right-of-way, and the Mag Parcel,
as those terms are defined in the IA ("Subject
Parcels"), all as provided for, and on and subject to
the terms and conditions set forth, hereinbelow; and,
B. Fieldstone owns fee title and Lender holds a
first lien with respect to the Subject Parcels and are
willing to perform as provided in this Agreement,
1 f:\wpdoc\01\2110\9503rof.agr
subject to the terms and conditions set forth
hereinbelow.
-4
’ -7
2 f:\wpdoc\Ol\2110\9503rof.agr
Aar eemen t
1. Riaht of F irst Refusa 1.
Prior to the sale and conveyance of any of the Subject
Parcels, or any portions thereof, within five (5) years fron
the date of this Agreement (hereinafter referred to as the
'Term"), except for a conveyance to Lender, Fieldstone or
Lender (provided that it then holds fee title thereto) shall
offer to sell said lands to be offered for sale to the City
in accordance with the provisions of this Section 1.
a. Written Notjce of Possible Offer to Sell.
From time to time during the Term, Fieldstone or
Lender ("Offeror") may notify City in writin-otice")
that it may offer one or more of the SubjecPB&els, or
portions thereof as to which it then owns fee t'itle, or a
portion thereof (hereinafter the lands included within an
Offer are referred to as "Offered Lands"), for sale and
conveyance to City. The Notice shall set forth: (i) a
Purchase Price for said the Offered Lands; and, (ii) an
offer ('Offer") to sell the Offered Lands for cash at the
Purchase Price, with payment thereof and conveyance of title
to the City within six (6) months of the Effective Date of
the Notice in accordance with Section 1.c. below. The Offei
shall terminate unless it is accepted in strict accordance
with Paragraph 1.b. below.
b. AcceDtance of Of fey.
The City may accept an Offer only by delivery of
within sixty (60) days of the Effective Date of the Notice
with respect thereto, together with: (i) evidence
satisfactory to Offeror that City has the financial
capability to pay the Purchase Price in a timely manner;
and, (ii) assurances to the Offeror in a form reasonably
satisfactory to Offeror that: (A) the burden and charges
with respect to the construction and operation of Rancho
Santa Fe Road or the City's Growth Management Plan and
related ordinances, policies and regulations that would have
written notice of its acceptance thereof to the Offeror
3 f:\wpdoc\01\2110\9503rof.agr
been allocated, charged to or borne by the owners of the
Offered Lands but for the use of the Offered Lands as open
space, will not be allocated or charged to other lands
within the Plan Area owned by Fieldstone or Lender at the
time of the Closing; or, (B) that Fieldstone and Lender
shall be fully compensated, in addition to the Purchase
Price, for the reasonably anticipated increase in charges
and burdens to other lands within the Plan Area owned by
Fieldstone or Lender at the time of the Closing resulting
from the non-development of the Offered Lands.
that the City accepts an Offer in accordance with this
provision, within six (6) months of the Effective Date of
the Notice, the Offeror and City shall simultaneously pay
the Purchase Price in cash and convey the Lands through an
escrow (the “Closing”), all in accordance with the
provisions of Paragraph 1.c. hereinbelow.
In the event
c. Closincr of Purchase. 4 In the event City accepts an Offer Y finTaccordance
with Paragraph 1.b. above, within ten (10)
and the Offeror shall execute and deliver to escrow holder
escrow instructions and other documents necessary to
evidence the agreement of the parties, establish and escrow
and to effect the Closing in accordance with the following
terms and conditions; and, (ii) City shall deposit into said
escrow cash in the amount of five (5) percent of the
Purchase price (to be held and applied by escrow holder to
the Purchase Price at the Closing):
days: (i) City
(1) The Purchase Price and conveyance of
title shall be effected Simultaneously and prior
to the end of said six (6) month period through ar
escrow established with a title company selected
by Offeror.
(2) Conveyance of title to the Offered Lands
shall be by grant deed, conveying fee title
thereto to the City or its nominee free of all
rights, interests, easements and encumbrances that
would impair the use of the Offered Lands
wildlife habitat purposes; except that, Offeror
may reserve and except from the conveyance of the
Offered Lands all easements, rights-of-way and
other rights and interests which are reasonably
for
4 E:\wpdoc\01\2110\9503rof.agr
necessary in connection with the development and
use of other lands within the “Plan Area”, as that
term is defined in the IA.
(3) Real estate taxes, charges and
assessments shall be prorated to the Closing.
(4) All costs and expenses of the conveyance
shall be shared and paid by the Offeror and City
as follows:
(a) Offeror shall pay the costs of a
California Land Title Association
owner‘s policy for City or its
nominee and one-half of the cost of
the escrow; and,
(b) City shall pay one-half of the cost
w 4 of the escrow. ,-
All other costs and expenses of the
Closing shall be shared and paid by Offeror and
the City in accordance with the customs in the San
Diego County.
ictio n. 2. No Further Restr
In the event that Offeror makes an Offer to City with
respect to any Offered Lands in accordance with Paragraph
l.a., hereinabove, and the City does not, for any reason,
accept the Offer in accordance with Paragraph l.b.,
hereinabove, Fieldstone and Lender may thereafter offer to
sell and/or sell to another the Offered Lands at a Purchase
Price equal to or greater than the Purchase Price set forth
in the Offer. Upon any such sale, Fieldstone, Lender and
their successors and assigns shall have no further
obligation or duty under this Agreement with respect to the
Offered Lands, including, but not limited to, the obligatior
to further offer to sell the Offered Lands to City.
In the event that City does not accept an Offer within
the time specified in Paragraph 1.b. hereinabove, upon the
written request of the Fieldstone or Lender, the City shall
execute and deliver to the requesting party all documents
and instruments reasonably requested acknowledging that
5 f:\wpdoc\01\2110\9503rof.agr
there is no further obligation or duty on the part of
Fieldstone, Lender or their successors and assigns under
this Agreement with respect to the Offered Lands in
accordance with the foregoing.
3. Misce3laneous P rovisio ns .
a. Notices.
Any notice, demand, request, consent, approval, OY
communication that either party desires or is required to
give to the other shall be in writing and either served
personally or sent by certified mail with postage prepaid,
return receipt requested, addressed as follows:
To Fieldstone:
The Fieldstone/La Costa Associates
4565 Morehouse Drive, Suite 250.7
San Diego, CA 92121
Attn: Mr. John Barone
Limited Partnership ir 4
6 f:\wpdoc\01\2110\9503rof.agr
copy to:
Lindell L. Marsh, Esq.
Siemon, Larsen & Marsh
19800 MacArthur Blvd., Suite 350
Irvine, CA 92715
To City:
The City of Carlsbad
2075 Las Palmas Drive
Carlsbad, CA 92009
To Lender:
zz / r-
IC
or such other address as either party from time to time
shall designate by written notice to the other. Notice
shall be deemed effective (the "Effective Date") in the case
of personal delivery, upon delivery, and in the case of
certified mail, five (5) days after deposit in the United
States mail.
b. Term.
This Agreement shall terminate and be of no
further force and effect upon and after five (5) years from
the date hereof except with respect to the right of a party
to damages for any default in the performance of this
Agreement occurring prior to the end of said five (5) year
period.
W. C. Controllinq La
The interpretation and performance of this Deed
shall be governed by the laws of the State of California.
d. Modificatio ns and Amendments.
7 f:\wpdoc\01\2110\9503rof.agr
Any alterations, changes or modifications of or tc
this Agreement, to be effective, shall be made in writing
and shall be executed by all parties.
e. Successors and Assians
This agreement shall be binding upon and inure to
the benefit of the parties hereto and their successors and
assigns.
f . Counterparts.
The parties may execute this Agreement in
counterparts, which shall, in the aggregate, be signed by
all parties; each counterpart shall be deemed an original
instrument as against any party who has signed it. F-4
' -T IN WITNESS WHEREOF, the parties have .. executed this
Agreement as of the day first above written.
" F I ELD S TONE 'I
The Fieldstone/La Costa Associates
Limited Partnership, A California Limited
-Partnership
By: The Fieldstone Company, a
California corporation
General Partner
By :
John Barone, Senior
Pro] ect Manager
"LENDER"
By :
a f:\wpdoc\01\2110\9503rof.agr
" CITY"
The City of Carlsbad, California
By :
*4
' -7 .I
9 f:\wpdoc\01\2110\9503rof.agr
Draft: Mav 22, 19
DRAFT
IMPLEMENTATION AGREWENT REGARDING
THE CITY OF CARLSBAD/FIELDSTONE/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
I
and
FIELDSTONE/LA COSTA ASSOCIATES LIMITED PARTNERSHIP
x-
05-23-95
F:\UPDOC\01\2110\9505AGR.IA
TABLE OF CONTENTS P -
I. DEFINITIONS AND EXHIBITS ...............
A. DEFINITIONS ...................
1. IIAgreemen t If ............
lrBudgetrl ............. 2.
3. llCi tyrl ..............
4. I1Ci ty Regulations I! ........
5. If Cons erva ti on En ti Cyff ....... 'IConserved Habitat" ........ 6.
If Ef f ecti ve Date I1 7.
If Fi el ds tone If 8.
9. IfFuture-Rancho Santa Fe Road" ...
10. "Habitat Conservation Plan/On-
Going Multi-Species Plany1 or
"HCP/OMSP lr ............
11- IIIlMP" - - - - - - - - - - 1 - - . -
12 . IfMP Conservancyif .........
13. IrHMP Programr1 ...........
14. llHomeomers Associationrr .....
15. IfImpact Area" or IIImpact Areas" . .
16. IIMAG Parcel lr ...........
17. rrMaprr ...............
18. "Minor Adjustmextfi ........
19. rrNorthwest Conserved Habitat
Parcelsf1 .............
20. IINorthwest Subarearr ........
21. llOffsite Conservation Lands" ...
22. 'IOffsite Mitigation Parcel" ..* 2 3 . It Permi ts and MOUs" ........
2 4 . If P1 an Area lr ............
25. rlP1an Activities" .........
27. iiRancheros-Southeast II Conserved Habitat Parcel I1 .........
28. IlRancheros-Southeast 11 Subareall .
29. Ifspecies of Concern" .......
30. IlSpecial Ruleff ..........
3 I. rrSubareafl or lrSUbareasff ......
3 2 . l1 Termrr ..............
33. flWildlife Conservation
Regulations I' ...........
......... ...........
2 6 . "Proj ec t II . - - - - - - - . - - - -
B. EXHIBITS
Exhibit 1: - Glossary
Exhibit 2 : The Map
Exhibit 3 : List of SDecies of Concern
Exhibit 4 : Findinss and Determinations
Exhibit 5: Form of Conservation Easement
Exhibit 6 : Form of Risht of First Refusal
11. RECITALS .......................
A. PLAN AREA OWNERSHIP AND DEVELOPMENT OF THE
B. SPECIES ADDRESSED BY THIS AGREEMENT AND THEIR
C. THE HABITAT CONSERVATION PLAN ..........
D. AUTHORITY OF FWS .................
E. AUTHORITY OF DFG .................
F. RELATIONSHIP TO THE NCCP PROGRAM AND THE SPECIAL,
RULE .......................
G. AUTHORITY OF THE CITY ..............
H. LEGAL REQUIREMENTS AND ASSURANCES ........
PROJECT .......... , , , , , , .....
REGULATION ....................
1. HCP/OMSP Consistency with Wildlife
2. Reliance on Undertakings ..........
111. TERM OF THE AGREEMENT .................
A. STATED TERM ...................
B. PERMANENCE OF CONSERVED HABITAT AND OFFSITE
Conservation Regulations ..........
MITIGATION PARCEL ................
IV. AUTHORIZATION TO TAKE . i ...............
A. ISSUANCE OF SECTION lO(a) PERMIT AND SECTION
2081 MOU .....................
2. Section 2081 MOU ............
B. FURTHER PERMITS WITH RESPECT TO UNLISTED SPECIES
OF CONCERN. ...................
C. LISTING OF OTHER SPECIES .............
D. ISSUANCE OF MBTA PERMITS .............
E. NOTICES OF PROPOSED RULES AFFECTING ANY SPECIES
OF CONCERN ....................
F. CITY PROJECT APPROVAL AND ASSURANCES ..
1. No Approval of Project Beyond Wildlife ..
2. General Plan Amendment ...........
3. Environmental Review of Project __---
1. Section lO(a) Permit . . ..........
G. UTILITY LINES, OTHER FACILITIES AND ACTIVITIES
IN CONSERVED HABITAT ...............
05-23-95
F:\WPDOC\01\2110\9505AGR.IA ii
V. OBLIGATIONS OF FIELDSTONE AND FUNDING .........
A. CONVEYANCE OF CONSERVED HABITAT AND OFFSITE MITIGATION PARCEL ................
1. Conveyance of On-site Conserved Habitat . .
2. Conveyance of Offsite Mitigation Parcel ... B. MAINTENANCE OF CONSERVED HABITAT BY FIELDSTONE
PENDING CONVEYANCE ................
C. PROTECTION OF ON-SITE CONSERVED HABITAT IN
CONNECTION WITH DEVELOPMENT ACTIVITIES ...... D. FUNDING ..................... 1. By Fieldstone ................
a. Maintenance of Conserved Habitat ....
b. City HMP Program and Research .....
Conserved Habitat .............
a. Budget for Long-term Maintenance and
Limit of Fieldstone Obligation .....
b. Public Efforts to Provide Long Term
Funding ................
c. Funding through Homeowners Association
and Endowment .............
E. CONDITION PRECEDENT TO PERFORMANCE ........
2. Funding of Long-term Maintenance of
VI. CITY HMP: ADDITIONAL CONSERVATION; LONG-TERM
MANAGEXENT OF CONSERVED HABITAT AND RELATED MEASURES -
A. CITY HMP .....................
B. ADDITIONAL CONSERVATION TO BE PROVIDED
UNDERHMP ....................
1. Acquisition of.Lands within the Corridor
between Carlsbad and the San Dieguito
Riverpark Planning Area ...........
2. Further Acquisition Discussions ......
3. Right of First Refusal ...........
1, Creation of the HMP Conservancy .......
2. Annual Report, Program and Budget ......
3. Cooperation of Wildlife Agencies and the
City ....................
Measures with Other Conservation Programs .
5. Enhancement of San Marcos Creek Habitat . .
6. Relocation of SDG&E Easements ........
C. LONG TERM MAINTENANCE OF CONSERVED HABITAT ....
4. Coordination of Conservation and Management
05-23-95
F:\WPDOC\01\2110\9505AGR.IA iii
VII. UNFORESEEN CIRCUMSTANCES ...............
A. IN GENERAL ....................
PROCEDURE FOR DETERMINING OCCURRENCE OF UNFORESEEN CIRCUMSTANCES .............
1. Notice to Parties ..............
2. Submission of Information by Other Parties .
Be
3 . Findings ..................
CIRCUMST~CES t I * 4 $ ............. C. RESPONSE TO OCCURRENCE OF UNFORESEEN
VIII. AMENDMENTS, MINOR ADJUSTMENTS AND EMERGENCY ACTIONS . .
A. FURTHER ACTIONS AND AMENDMENTS ..........
B. ‘MINOR ADJUSTMENTS ................
C. ACTIONS TO PROTECT HUMAN HEALTH AND SAFETY ....
IX. MAGPARCEL ......................
x, TERMINATION BY FIELDSTONE ...............
XI. ENFORCEMENT AND REMEDIES ...............
A. IN GENERAL ....................
B. REVOCATION AND TERMINATION ............
C. NOTICE AND OPPORTUNITY TO CURE ..........
D. SEVERABILITY ...................
1. Fieldstone as to Project and Plan
Activities and City as to Rancho Santa Fe
Road ....................
E. UNIQUE WILDLIFE RESOURCES; IRREPARABLE INJURY . .
F. NO LIMITATION IN AUTHORITY ............
XIS. NO FURTHER MITIGATION .................
2. Conveyance af Parcels by Fieldstone .....
A. NO FURTHER MITIGATION ..............
XIII. MISCELLANEOUS PROVISIONS ...............
A. INCORPORATION OF THE HCP/OMSP ..........
B. ENTIRE AGREEMENT .................
C. ASSIGNMENT AND DELEGATION ............
D. INTERPRETATION OF AMBIGUITIES ..........
E. CAPTIONS .....................
F. INDEPENDENT INVESTIGATION ............
G. TIMING ......................
H. NO PARTNERSI-PIP ..................
05-23-95 F:\WPDOC\O1\2110\9505AGR. IA iv
I. ELECTED OFFICIALS NOT TO BENEFIT .........
J. STANDING TO SUE DFG ................
K. BENEFIT OF THE AGREEMENT .............
L. EMINENT DOMAIN ..................
M. FORCE MAJEURE ..................
N. NOTICES
0. ATTORNEYS’ FEES .................
P. EFFECTIVE DATE ..................
Q. DUPLICATE ORIGINALS ............ , , ,
.....................
SIGNATURES 76
x-
05-23-95 F:\WPDOC\01\2110\9505AGR.IA V
IMPLEMENTATION AGREEMENT REGARDING
THE CITY OF CARLSBAD/FIELDSTONE/LA COSTA ASSOCIATES
HABITAT CONSERVATION PLAN/ON-GOING MULTI-SPECIES PLAN
(California Section 2081 Memorandum of Agreement)
This IMPLEMENTATION AGREEMENT REGARDING THE CITY OF
CARLSBAD/FIELDSTONE/LA COSTA ASSOCIATES HABITAT CONSERVATION P
("Agreementi1) is made and entered into as of June 7, 1995 by a
between the City of Carlsbad, California (the IICity"), a
municipal corporation, Fieldstone/La Costa Associates Limited
Partnership, a California limited partnership ("Fieldstone") ,
United States Fish and Wildlife Service, an agency of the
Department of Interior of the United States (l1FWSf1), and the
California Department of Fish and Game ("DFG"), an agency Of tl
State of California (the City, Fieldstone, FWS and DFG are
referred to collectively herein as the "Partiesi1).
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.
05 - 23-95 F:\WPDOC\01\2110\9505AGR.IA 1
I. DEFINITIONS AND EXHIBITS (in alphabetical order)
A. DEFINITIONS
The following definitions are used in this Agreement.
Each of the terms defined in the Glossary attached to th
Agreement as Exhibit 1 has the meaning set forth therein when
used in this Agreement.
1. "Agreement Jf means this document entitled:
"IMPLEMENTATION AGREEMENT REGARDING THE CITY OF
CARLSBAD/FIELDSTONE/LA COSTA ASSOCIATES HABITAT CONSERVATION
PLAN11 entered into by and between the City, Fieldstone, FWS anc
DFG.
2. Vudget IJ means 2 the budget entitled "Management
Cost Assumptions for the Habitat Conservation Plan/Ongoing Mu1
Species Plan for Properties on [sic] the Southeast Quadrant of
the City of Carlsbad", described in the Addendum to the HCP/OM!
3. ffCitym means the City of Carlsbad, California,
municipal corporation.
4. "City Regulationsif means all existing and futu:
City laws, ordinances, *rules, regulations, policies, constraini
05 - 23-95
F:\WPDOC\01\2110\9505AGR.IA 2
conditions of development approvals, goals, purposes or other
requirements related to the Conservation of Wildlife, includin
but not limited to those set forth in: the General Plan and
Municipal Code (including the provisions of Title 20 and Title
21) I codified and uncodified ordinances (including zoning
ordinances and Ordinance Number 9795), policies, and the HMP o
the City of Carlsbad.
5. 'rConservation Entity" means the HMP Conservanc
DFG, an agency of the State of California, or a conservation
agency approved by DFG and FWS, which approval shall not be
unreasonably withheld.
6. "Conserved Habitat" means the lands owned in j
title by Fieldstone within the Plan Area consisting collective:
of the Rancheros-Southeast I1 Conserved Habitat Parcel and the
Northwest Conserved Habitat PaTcels, all as generally depicted
the Map.
7. "Effective DateJJ means the date of the issuance
of the Section lO(a> Permit by FWS permitting the incidental TE
of California Gnatcatchers as contemplated by Section IV
hereinbelow.
8. NFieldstonen means Fieldstone/La Costa Associat
Limited Partnership, a California limited partnership.
05 -23-95 F:\WPDOC\01\2110\9505AGR.IA 3
9. "Future Rancho Santa Fe Roadf1 means the future
roadway as shown and designated as such on the Map, including,
without limitation, all grading and construction activities
connected therewith, a portion of which is adjacent to but not
included within Conserved Habitat, that will be realigned to t
proposed "Canyon Alignment" and reconstructed,
phases, as a six-lane prime arterial, as described in the
environmental impact report, Clearinghouse Number 90010850,
certified June 2, 1992, including any grading adjacent to the
profile of the proposed road necessary to construct the road.
in one or more
10. "Habitat Conservation Plan/Qn-Going Mu1 ti -Spec
Plan11 or ffHCP/OMSP1l means the "HABITAT CONSERVATION PLAN/ON-GO
MULTI-SPECIES PLAN FOR PLANT AND WILDLIFE SPECIES OF CONCERN I.
THE SOUTHERN QUADRANT OF THE CITY OF CARLSBAD, CALIFORNIA, dat
June, 199511, including the Base Plan and the First and Second
Addenda thereto, all of which Qave been approved by the Partie
in connection with their execution of this Agreement.
11. rlHMPff means the City of Carlsbad Habitat
Management Plan, which is a Wildlife habitat conservation plan
that will serve as a component of the City's General Plan Open
Space and Conservation Element, and that will comprise a subarc
component of the MHCP.
available in draft form on July 2, 1993, addresses, in the
context of the subregional MHCP, the protection and management
The HMP, which was made publicly
05 -23-95 F:\WPDOC\01\2110\9505AGR.IA 4
multiple types of habitat and listed and unlisted species with
the subarea formed by the jurisdictional boundaries of the Cit
12. "HMP Conservancy" means an agency created by t
City, alone or together with one or more other public agencies
pursuant to the HMP Program, or otherwise, to own and Manage
lands for Wildlife Conservation purposes.
13. "HMP Program" means the habitat management
program of the City of Carlsbad in cooperation with the North
County Wildlife Forum of San Diego County, Fieldstone, FWS and
DFG to develop the HMP.
14. Womeomers Association ff means an incorporated
unincorporated association of homeowners within the Plan Area
formed for the purposes of, among other things, holding,
maintaining, operating and protecting common areas and open
space, and funding those activities within any Subarea.
15. ffImpact Area" or "Impact Areas" mean,
respectively, a portion or portions of the Plan Area, as shown
the Map, which are excluded from Conserved Habitat and will be
developed as part of the Project.
16. "MAG Parcel" means that certain approximately
acres of land located within the Impact Areas lying southeast 1
05-23-95 F:\WPDOC\01\2110\9505AGR.IA 5
Existing Rancho Santa Fe Road within the Southeast I1 Subarea,
shown on the Map.
17. "Map" means the map attached hereto as Exhibit
which generally depicts, among other things, the Plan Area, thl
Northwest Subarea, the Rancheros-Southeast II Subarea, the Impl
Areas, the MAG Parcel, the On-site Conserved Habitat, the Futu.
Rancho Santa Fe Road alignment and the SDG&E easements.
18. Winor Adjustment" means an adjustment or
modification of the Conservation measures under the HCP/OMSP a
implemented by this Agreement that is expected to result in
adverse impacts to the Species of Concern that are substantial
the same or less than those contemplated by the HCP/OMSP, whic:
may include, for example, some modifications in the boundaries
the Conserved Habitat.
I
19 - 111Jork6west Conserved gab; tat Parcels 11 means thi
portions of Conserved Habitat located within the Northwest
Subarea, consisting of approximately 181 acres of land, as shot
on the Map (which includes 40 acres of land required to be
conveyed by Fieldstone as mitigation under a prior agreement w
FWS if the Del Mar Manzanita were to be Listed).
05 -23-95 F:\WPDOC\01\2110\9505AGR.IA 6
20. "Northwest Subarea" means that portion of the
Plan Area consisting of approximately 662 acres of land, as sh
on the Map.
21. "Offsi te Conservation Lands1! means lands appro
by FWS and DFG, and located generally within the corridor betw
the City and the San Dieguito Riverpark Planning Area, to be
conveyed to a Conservation Entity or other conservation
organization approved by FWS and DFG in accordance with Sectio
VI.B.1.
1
22. "Offsite Mitigation Parcel" means the lands
required to be conveyed by Fieldstone pursuant to Section V.A.
as provided in Section VI,B.l.a.(2), which lands will comprise
portion of the Offsite Conservation Lands.
23. IfPermits and MOUsff means all permits and MOUs
issued or entered into pursuant to or as contemplated by this
Agreement, including, but not limited to, Section lO(a) permit
Section 2081 MOUs, Section 2835 Permits and MBTA Permits.
24. "Plan Area" means the lands covered by the
HCP/OMSP, consisting of the Rancheros-Southeast I1 Subarea and
the Northwest Subarea and the 14-acre portion of the Rancho Sal
Fe Road right-of-way outside of the Subareas.
05 - 23-95 F:\WPDOC\01\2110\9505AGR.IA 7
25. ffP1an Activities" ("all activities authorized
under the HCP/OMSPii) means all activities of every kind and
nature that are necessary or appropriate in order to develop,
complete, effect, use, operate, manage, enhance, repair and
maintain the Project and the Conserved Habitat, with timing ant
phasing determined by the respective actor with respect to eac:
such activity.
26. IrProjectrr means the development contemplated b!
the HCP/OMSP to be located within the Impact Areas and, to the
extent provided under Section IV.G, within Conserved Habitat,
urban facilities, structures and uses, without limitation:
residential, commercial, facilities and infrastructure
improvements; and, (ii) road and related transportation
facilities. Without limiting the generality of the foregoing,
the Project, includes: grading and landscaping; utilities,
communication lines, facilitieg, pipelines and rights-of-way, (
every kind and nature; roads, bikeways and walkways; dams,
channels, bridges, water and sewer systems; recreational
facilities, trails and open space; and, all other development,
structures and facilities of every kind and nature.
(i
27. ffRancheros-Southeast 11 Conserved Habitat Para
means that portion of Conserved Habitat that Fieldstone owns ii
fee, located within the Rancheros-Southeast I1 Subarea,
consisting of approximately 521.4 acres of land, as shown on tl
05-23-95 F:\WPDOC\01\2110\9505AGR.IA 8
Map (including 15 acres of land required to be conveyed by
Fieldstone as mitigation under a prior agreement with FWS).
28. "Rancheros-Southeast 11 Subarea" means that
portion of the Plan Area consisting of approximately 1,278.2
acres of land as shown on the Map.
29. ffSpecies of ConcernIf means those species liste
in Exhibit 3.
30. "Special Rule" means Section 17.41 (b) Title 5
of the Code of Federal Regulations with respect to the
Gnatcatcher.
31. flSubareall or lrSubareas If mean, respectively, on
or both of the Northwest Subarea and the Rancheros-Southeast I
Subarea as depicted on the Map,
32. "Term" means that period during which, regard1
of the "stated termii set forth in Section 111, this Agreement
in effect.
33. "Wildlife Conservation Regulations If means all
local, State and federal laws, ordinances, regulations,
guidelines, policies and directives regulating or restricting .
impacts or effects of the Project on Wildlife and its habitat,
05-23-95 9 F:\WPDOC\OI\2110\9505AGR. IA
including, without limitation:
limitation, Section lO(a), Section 4(d) and the Special Rule;
CESA (including, without limitation, Section 2081); NCCP Act
(including, without limitation, Section 2835); NCCP Program;
NEPA; CEQA; the federal Fish and Wildlife Coordination Act; MB
Act, the federal Clean Water Act; Section 1601 and 1603 of the
California Fish and Game Code; the California Native Plant
Protection Act (California Fish and Game Code Section S 1900 e
m.) and City Regulations with respect thereto. As to each
party, such wildlife conservation regulations are those
administered by or under which the party exercises legal
jurisdiction or authority.
ESA (including, without
B. EXHIBITS
Attached to this Agreement are the following Exhibits,
which are incorporated herein Qy this reference:
Exhibit 1 : Glossaw
Exhibit 2 : The Map
Exhibit 3 : List of SDecies of Concern
Exhibit 4: Findinss and Determinations
05-23-95 F:\WPDOC\01\2110\9505AGR.IA 10
Exhibit 5 : Form of Conservation Easement
Exhibit 6 : Form of Risht of First Refusal
11. RECITALS
This Agreement is based on the following facts:
A. PLAN AREA OWNERSHIP AND DEVELOPMENT OF THE PROJECT
The Plan Area consists of the Rancheros-Southeast
Subarea and Northwest Subarea owned by Fieldstone and others
(with respect to the Mag Parcel), and a portion of the right-o
way for Future Santa Fe Road owned by the City.
I1
Fieldstone and the City desire to: (i) effect the Projec
within the Plan Area in phases determined appropriate by the
respective developer of each portion thereof; and, (ii) minimi
and mitigate the impacts of the Project on the Species of Concc
and their habitats by providing for the Conservation of the
Species of Concern and their habitats, as provided herein, wit1
the Conserved Habitat.
05-23-95
F:\WPDOC\01\2110\9505AGR.IA 11
B. SPECIES ADDRESSED BY THIS AGREEMENT AND THEIR
REGULATION
The Species of Concern are species that use, occupy or a.
associated with the Plan Area and include, but are not limited
species that are: (1) Listed as I1threatenedii or rlendangeredii
under ESA or CESA; (2) proposed or candidates for such listing
(3) of special concern in California; (4) rare or declining
regionally; or (5) of local concern. Certain Species of Conce
for example, but without limitation, the Gnatcatcher, are
currently Listed under ESA and it is anticipated that one or mi
of the other Species of Concern may be proposed to be or may
become Listed under ESA or CESA.
C. THE HABITAT CONSERVATION PLAN
The HCP/OMSP has been coJlaboratively developed pursuant
a three year facilitated focused planning process led by the C
and involving representatives of Fieldstone, the City, DFG, FW;
conservation organizations and various other individuals,
agencies and organizations in order to fully reconcile concern!
regarding the conservation of the Species of Concern and their
habitat and the Project and to provide the basis for the
expeditious issuance of permits and approvals under and pursua.
to the Wildlife Conservation Regulations.
consultants have independently and thoroughly reviewed the
FWS and DFG
05-23-95
F:\WPDOC\01\2110\9505AGR.IA 12
HCP/OMSP, which is acknowledged to be the product of accurate,
thorough and lengthy studies and surveys.
D. AUTHORITY OF FWS
FWS has provided guidance to the City and Fieldstone in
preparation of the HCP/OMSP and entered into this Agreement
pursuant to ESA and the United States Fish and Wildlife
Coordination Act (16 U.S.C. §§ 661 & m.1 and the Fish and
Wildlife Act of 1956 (16 U.S.C. § 742f). In connection with t
enactment of Section lO(a) of the ESA, the United States Congr
expressed its intent that FWS cooperate in the development of
conservation plans that protect both listed and unlisted specil
over the long term while providing assurances regarding the
limits of any Mitigation required, stating that:
[TI 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 t
the proponent of the conservation plan that the ter
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 even
that an unlisted species addressed in an approved
conservation plan is subsequently listed pursuant t the Act, no further mitigation requirements should imposed if the conservation plan addressed the conservation of the species and its habitat as if t
species were listed pursuant to the Act.
***
05-23-95 F:\WPDOC\01\2110\9505AGR.IA 13
It is also recognized that ciyeumstanees and
information may change over time and that the origi plan might need to be revised. To address this
situation the Committee expects that any plan apprc 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)l.
E. AUTHORITY OF DFG
DFG has participated in the preparation of the HCP/OMSP
entered into this Agreement pursuant to CESA, which provides t
the Department has jurisdiction over the conservation, protect
and management of fish, wildlife, native plants and habitat
necessary for biologically sustainable populations of those
species. See, e.s., California Fish and Game Code §§ 1801, 181
2000 and 2052. DFG is charged not to approve projects as
proposed that would jeopardize the continued existence of any
I1endangeredlt or I1threatenedii species or that would result in tl
destruction or adverse modification of habitat essential to the
continued existence of those species if there are reasonable ar
prudent alternatives available consistent with conserving the
species or its habitat that would prevent jeopardy.
Fish and Game Code Si 2053.
economic, social or other conditions make infeasible such
alternatives, individual projects may be approved if appropriat
nmitigationn and enhancement measures are provided. California
Fish and Game Code § 20'54. Further, DFG may authorize the Takc
I
Californii
However, in the event specific
05-23-95
F:\WPDOC\01\2110\9505AGR.IA 14
of Species of Concern Listed under CESA for scientific,
educational or management purposes under: (1) CESA and
Section 2081; and (2) California Fish and Game Code Sections 2
and 3007.
F. RELATIONSHIP TO THE NCCP PROGRAM AND THE SPECIAL RU
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 Progr
which is a pilot project under the NCCP Act that provides for
preparation Of NCCPs for coastal sage scrub habitat and the
species that inhabit and use coastal sage scrub habitat,
including the Gnatcatcher.
and FWS have entered into that certain "MOU REGARDING COASTAL
SAGE SCRUB NATURAL COMMUNITY CONSERVATION PLANNING IN SOUTHERN
CALIFORNIA," executed December,$, 1991, providing for a policy
coordination and cooperation between FWS and DFG in the
development of plans for the conservation of coastal sage scru
natural communities.
The California Resources Agency, D
FWS has adopted the Special Rule, which defines those
conditions under which incidental take of the Gnatcatcher unde
the ESA, that is not otherwise excepted under Section 7 or
permitted under Section 10(a), will not be considered a violat
of the ESA. Those conditions are: (1) if the incidental Take
05-23-95 F:\WPDOC\01\2110\9505AGR.IA 15
results from activities conducted in accordance with an NCCP f
the protection of CSS habitat prepared consistent with the Sta
of California's NCCP Conservation and Process Guidelines,
provided that (a) the NCCP has been prepared, approved and
implemented pursuant to the NCCP Act; and (b) the FWS has issu
written concurrence that such plan meets the standards set for
in 50 C.F.R. § 17.32(b) (2); or (2) during the period that an N
is being developed, the incidental Take occurs within an area
under the jurisdiction of a local government that is enrolled
actively engaged in the preparation of such a plan and such Ta
results from activities conducted in accordance with the NCCP
Conservation and Process Guidelines.
DFG may permit the Taking, as provided elsewhere in the
California Fish and Game Code, of any identified species whose
llconservation" and llmanagementll is provided for in a DFG apprc
NCCP .
Section 2835 provides tk
I
The HCP/OMSP is exempt from the NCCP Act pursuant to
Section 3 of the NCCP Act in that it was prepared pursuant to
pre-existing agreement for the preparation of a habitat
conservation plan or NCCP approved by the Director of DFG pric
to January 1, 1992, the effective date of the NCCP Act.
Notwithstanding this exemption, as set forth in various
agreements related to the preparation of the HCP/OMSP and the
among the Parties and among certain Parties and other State
agencies responsible for implementation of the NCCP Program,
05-23-95
F:\WPDOC\O1\2110\9505AGR.IA 16
including the NCCP Program enrollment agreements between the C
and the Resources Agency of the State of California, the Parti
intend that the HCP/OMSP be coordinated and consistent with tl-
NCCP Program such that the objectives of the NCCP Program will
substantially achieved and preparation of a regional NCCP will
promoted. Further, while the HCP/OMSP independently meets the
requirements of CESA and ESA, the City and Fieldstone also ha\
cooperated with the preparers of the HMP and the MHCP, which z
subarea and subregional plans prepared under the NCCP Act, to
ensure that the HCP/OMSP will be a completed component of the
NCCP Program.
Specifically, the HCP/OMSP plan has been prepared, apprc
and implemented pursuant to the NCCP Act and is recognized as
initial component of the HMP that meets the standards set fort
in 50 C.F.R. 17.32(b) (2). The HMP is a subarea component of t
on-going MHCP planning effort under the NCCP Program. The HMI
and MHCP are on-going multiple species and multiple habitat
conservation plans prepared in the context of ESA, CESA and tl
NCCP Program to achieve the goals of and objectives of the
Wildlife Regulations in general. On acceptance by the FWS an(
DFG of the MHCP, the HCP/OMSP shall be considered an approved
component of that subregional NCCP Plan.
I
05 - 23 - 95 F:\UPDOC\O1\2110\9505AGR. IA 17
G. AUTHORITY OF THE CITY
The City is authorized to enter into and has entered int
this Agreement pursuant to statutes and the Constitution of tk
State of California, authorizing the City to regulate the use
land, accept or approve open space and conservation easements,
create assessment districts, enact conservation and open space
elements for general plans, preserve natural resources, incluc
Wildlife, and exercise general planning and zoning powers, and
enter into contracts and take other actions to conserve wildli
resources and reconcile such concerns with economic developmer
See, ea, California Government Code §§ 50060.5, 51205, 5107C
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 permjts and MOUs regarding public
improvements and facilities, the possible management of the
Conserved Habitat and the Impact Areas generally, under
Section 10(a) and Section 2081, and a local jurisdiction with
authority to regulate the use of lands within its jurisdictior
including the Plan Area.
05-23-95 F:\WPDOC\01\2110\9505AGR.IA 18
H. LEGAL REQUIREMENTS AND ASSURANCES
1. HCP/OMSP Consistencv with Wildlife Conservatic
Requlations
The HCP/OMSP as implemented by this Agreement is
intended to effect the long-term reconciliation of the
Conservation of the Species of Concern and economic developmer
activities within the Plan Area, and to be consistent with and
fulfill the requirements of all Wildlife Conservation Regulati
with respect to the Project and Plan Activities including,
without limitation: Section lO(a), the MBTA, Section 2081,
Section 2835, Section 404 of the federal Clean Water Act (witk
respect to the avoidance, minimization and mitigation of all
impacts on the Species of Concern and their habitat with respc
to all waters of the United Stqtes within the Plan Area, but r
impacts to such jurisdictional waters that are subject to
mitigation independent of the Species of Concern; provided,
however, that mitigation for the bridges in connection with
Rancho Santa Fe Road has not been provided (including mitigat:
for Species of Concern)), and any required mitigation of impac
to, or other actions with respect to, Species of Concern and
their habitat under any Streambed Alteration Agreements with
respect to the Plan Area required pursuant to Sections 1601 &
-. of the California Fish and Game Code; the NCCP Program; '
Special Rule; the California Native Plant Protection Act; and
05 -23-95 F:\WPDOC\01\2110\9505AGR.IA 19
City Wildlife Regulations. The HCP/OMSP, as implemented by th
Agreement, is: (1) consistent with and will complement other
applicable conservation planning and regulatory programs and
efforts addressing Wildlife in the City, the subregion and in
region, such as the HMP, the MSCP and the MCCP Program; and, (
based on current scientific and other information, reduces and
mitigates the potential significant adverse impacts of the
Project and Plan Activities on the Species of Concern and thei
habitats to a level of insignificance.
2. Reliance on Undertakinss
Each of the parties has bargained for and relied tc
its detriment, and has intended that the other parties rely, t
the significant and valuable undertakings, assurances, and thc
punctual and complete performance under and with respect to tl
Agreement.
111. TERM OF THE AGREEMENT
A. STATED TERM
This Agreement shall become effective as of the EffectiT
Date and shall remain in full force and effect during the per:
of time commencing on the Effective Date and terminating thirl
(30) years from the Effective Date (the "Stated Termll), subjec
05-23-95 F:\UPDOC\01\2110\9505AGR.IA 20
to earlier termination pursuant to the provisions of this
Agreement.
B. PERMANENCE OF CONSERVED HABITAT AND OFFSITE MITIGA'I
PARCEL
Notwithstanding the Term of this Agreement, once any
Species of Concern have been incidentally Taken and their habj
modified within the Plan Area pursuant to the HCP/OMSP and thj
Agreement, the take and habitat modification shall be permaner
Therefore the provisions of the HCP and this Agreement regardj
the maintenance, preservation and dedication of Conserved Habj
within the Plan Area, and maintenance and preservation of the
Offsite Conservation Lands shall likewise, to the extent
permitted by law, be permanent and extend beyond the Term of t
Agreement. I
IV. AUTHORIZATION TO TAKE
A. ISSUANCE OF SECTION 10(a) PERMIT AND SECTION 208
pIoJ
1. Section 10(a) Permit
On the Effective Date, FWS has issued a Section
lO(a) Permit authorizing the incidental Take by the
05 -23-95 F:\WPDOC\01\2110\9505AGR.IA 21
Permittees in connection with the Project and Plan
Activities, of Species of Concern that are Listed or may be
Listed in the future under ESA, which permit requires
compliance with this Agreement as a condition thereof.
to each Species of Concern that is not currently Listed
under the ESA, the permit shall become effective with
respect to such Species of Concern upon its Listing under
the ESA.
As
2. Section 2081 MOU
This Agreement constitutes a Memorandum of
Understanding under Section 2081 and authorization under
Section 2835 whereby the Permittees are authorized and
permitted to Take the Species of Concern (Listed or which
may become Listed in the futpre under CESA) for the Term,
subject to and in accordance with the provisions of this
Agreement.
B. FURTHER PERMITS WITH RESPECT TO UNLISTED SPECIES
OF CONCERN
Notwithstanding Section IV.A.l, in the event that it
is judicially determined that FWS was not authorized to
issue a Section 10(a) permit for all of the Species of
Concern, FWS shall issue Section 10(a) permits for the
05 - 23 -95
F:\WPDOC\01\2110\9505AGR.IA 22
Species of Concern as they become Listed, as otherwise
provided in this Section IV,B, Upon application from time
to time by the City or Fieldstone for further Section lO(a)
Permits, subject to compliance with ESA and applicable
statutes and regulations (but not including any requirement
of further surveys on the part of the applicant), after
public review and subject to the provision with respect to
the occurrence of unforeseen circumstances set forth below,
as soon as practicable, FWS shall issue further
Section lO(a) Permits for the remaining Term of this
Agreement allowing the incidental Take of the Species of
Concern by the Permittees in connection with the Plan
Activities in accordance with this Agreement and shall not
request, impose, recommend or require further mitigation,
compensation or protection for the listed species under
NEPA, ESA, or any other Wilwife Conservation Regulations,
except as expressly provided in this Agreement.
C. LISTING OF OTHER SPECIES
In connection with the Listing under ESA or CESA of
any species other than a Species of Concern, and upon prope
application, FWS or DFG, as appropriate, shall expeditious1
consider the issuance and if appropriate issue a Section
10(a) Permit or a Section 2081 MOU, as applicable, in
connection with the Project upon a finding that the HCP/OM$
05 -23-95 F:\WPDOC\01\2110\9505AGR.IA 23
and IA meet ESA or CESA, as applicable, standards for the
issuance of an Incidental Take Permit for such species.
In determining whether any further mitigation measurer
are required to issue a Section 10(a) Permit or enter into E
Section 2081 MOU with respect to a species, other than a
Species of Concern, FWS and DFG shall: (1) take into
consideration that Fieldstone and the City have minimized
and mitigated the impacts to the Species of Concern within
the Plan Area to the maximum extent practicable; and, (ii)
use their best efforts to cooperate with Fieldstone and the
City in good faith to minimize the adverse impacts of the
Listing of such species on the Project.
D. ISSUANCE OF MBTA PERMITS
Upon application from time to time by Fieldstone or
the City, and upon compliance with applicable permit review
procedures, FWS shall expeditiously issue MBTA Permits
allowing the Take of any birds covered by the MBTA, with
compliance with the terms of this Agreement as a condition
thereof. Prior to individual development activity within
any of the Impact Areas, in addition to the requirements of
the HCP/OMSP, Fieldstone shall implement measures to
relocate raptors that are Species of Concern so as to
minimize impacts thereto.
05 - 23-95
F:\WPDOC\01\2110\9505AGR.IA 24
E. NOTICES OF PROPOSED RULES AFFECTING ANY SPECIES
OF CONCERN
DFG and FWS each shall use its best efforts to
endeavor to send any future public notices to Fieldstone an(
the City of any proposed rule which it promulgates to
protect a Species of Concern as a Listed Species of Concern
Upon application for a Section 10(a), FWS and DFG shall
endeavor to expeditiously process the application so as to
allow, in accordance with Section 1V.B. above, the issuance
concurrently with the taking effect of such listing or as
soon thereafter as possible.
F. CITY PROJECT APPROVAL AND ASSURANCES
1. No ARRrOVal of Project Beyond Wildlife
Nothing in this Section IV. shall be interpreted
as a final approval of the Project by the City.
review by the City will be required before any portion of
the Project may be developed; provided, however, that under
no circumstances shall the City request, require, impose or
recommend any further Mitigation, compensation, enhancement
protection or Conservation with respect to the Species of
Concern beyond that required by this Agreement.
Further
05 -23-95
F:\WPDOC\O1\2110\9~05AGR.IA 25
2. General Plan Amendment
It is acknowledged that the City has adopted a
General Plan providing for certain types and levels of
development within the Impact Areas. The City shall use its
best efforts to expeditiously consider amending said General
Plan to provide collectively for the following:
a. the redesignation of Melrose Avenue
South of Rancho Santa Fe Road from “prime arterial” to
“major arterial” ;
b. the revision of the open space and areas
designated for development in the land use map of the
General Plan to be consistent with, respectively, the
Conserved Habitat and Impact, Areas provided for in the
HCP/OMSP and provision that no further open space will be
required beyond the Conserved Habitat under the General
Plan, including but not limited to the growth management
provisions thereof;
c. the shift of allowable dwelling units
currently provided for within the portions of the Conserved
Habitat to the Impact Areas (including, for example,
portions of the Impact Areas currently designated as open
space under the General Plan); and,
05-23-95 F:\WPDOC\01\2110\9505AGR.IA 26
d. the requirement that the owner of the
MAG Parcel reimburse Fieldstone for a prorata share of the
costs of preparing the HCP/OMSP as a condition precedent to
said owner receiving any benefits under the HCP/OMSP and
this Agreement -
3. Environmental Review of Project
The City shall use its best efforts to
expeditiously complete the environmental review of each
phase of the Project under applicable federal, state and
local laws governing environmental and public review of the
approval of those projects.
G. UTILITY LINES, OTHER FACILITIES AND ACTIVITIES IT
CONSERVED =ITAT i
The Project and Plan Activities include the creation,
construction, installation, repair, maintenance, and
replacement of required utilities, facilities, related
corridors, and public uses and rights-of-way within
Conserved Habitat (including, but not limited to:
vegetation modification within zones established pursuant tc
City ordinances for the protection of urban development fro1
catastrophic fire (fuel modification zones); and temporary
and permanent uses, ways and facilities for drainage, water
05-23-95
F:\UPDOC\01\2110\9505AGR.IA 27
electricity, telephone, sewer, gas and other utilities and
services). All such Project elements and Plan Activities
located within the Conserved Habitat shall be subject to
approval by FWS, DFG and the City as being in accordance
with this Section, which approvals shall not be unreasonabl;
withheld, and in this regard: (i) shall be designed to
minimize and avoid impacts on the Species of Concern and
their habitat within Conserved Habitat to the maximum exteni
practicable, consistent with the requirements of the Projeci
and Plan Activities and the levels of development provided
for in the City General Plan; and, (ii) any such impacts on
such species shall be offset as soon as practicable by the
revegetation of habitat, adaptive management measures withi:
Conserved Habitat and Minor Adjustments. Without limiting
the generality of the foregoing, any fuel modification zone
required to serve elements of the Project shall be located
within the Impact Areas to the extent reasonably practicabl
taking into consideration the levels of development within
the Impact Areas contemplated by the City General Plan and
when located in Conserved Habitat shall be fully mitigated
in accordance with this Section. The dedication of
Conserved Habitat and the conveyance of the conservation
easement provided for in Section V.A. shall except and
reserve to Fieldstone the rights and interests necessary to
carry out the purposes of this Section 1V.G.
05 -23-95 F:\WPDOC\01\2110\9505AGR.IA 28
V. OBLIGATIONS OF FIELDSTONE AND FUNDING
Fieldstone shall perform the covenants set forth in this
Section V., in accordance with and subject to the condition:
set forth in this Agreement.
A. CONVEYANCE OF CONSERVED HABITAT AND OFFSITE
MITIGATION PARCEL
1, Convevance of On-site Conserved Habitat
Prior to the disturbance of any habitat occupied
by any Species of Concern within a subarea of the Plan Area
(except for minor activities approved by the FWS and DFG,
which approval shall not be unreasonably withheld) and in nc
event later than two years after the Effective Date of this
Agreement or six months after the amendment of the General
Plan as provided in Section IV.F.2., whichever date occurs
later, Fieldstone shall irrevocably offer to convey:
I
a. a conservation easement to the DFG in
and over the Conserved Habitat within said Subarea, in the
form attached hereto as Exhibit 5, providing that said
Conserved Habitat will be held and used in perpetuity for
Wildlife Conservation purposes; and
05-23-95 F:\WPDOC\01\2110\9505AGR.IA 29
b. fee title to the Conserved Habitat
within said Subarea, to be held and used in perpetuity for
Wildlife Conservation purposes to, in order of preference:
(1) the HMP Conservancy, provided that
at the time of conveyance:
Conservancy establishes to the satisfaction of FWS, a viablt
source of funding for the permanent management of said
portion of the Conserved Habitat in accordance with the
HCP/OMSP; and, (b) the HMP Conservancy commits in writing tc
accept said conveyance and assume for the benefit of FWS anc
DFG the obligation to manage, operate and maintain said
portion of the Conserved Habitat in perpetuity for Wildlife
Conservation purposes only in accordance with the RCP/OMSP
and this Agreement; or,
(a) Fieldstone and or the HMP
I
(2) in the event that the HMP
Conservancy fails to satisfy the requirements of paragraph
V.A.l.b(l) above, a Conservation Entity jointly designated
in a written notice to Fieldstone by FWS, DFG and the City
that otherwise satisfies the requirement of paragraph
V.A.1.b. (1) above; or
(3) in the event that neither the HMP
Conservancy nor any other Conservation Entity approved by
FWS, DFG and the City has committed to accept said
-.
05 -23-95 F:\WPDOC\01\2110\9505AGR.IA 30
conveyance in accordance with this paragraph and paragraph
(11, a homeowners association for the Project, provided
however, that said homeowners association satisfies the
requirements of V.A.1.b. (1).
Said conveyance by Fieldstone shall be subject
to, and shall reserve and except, the rights and easements
necessary to provide for certain elements of the Project an(
Plan Activities within Conserved Habitat in accordance with
Section 1V.G. hereinabove; liens for taxes and assessments;
and rights, interests and exceptions and conditions of titlt
that do not interfere with the use of the Conserved Habitat
for Wildlife Conservation as reasonably approved by FWS and
DFG.
Fieldstone may provide in any such conveyance of
I
the Conserved Habitat for a reversion of fee title to
Fieldstone on the occurrence of the condition subsequent
that the Conserved Habitat is used for any purpose other
than wildlife conservation in accordance with this Agreemen.
and the HCP. In the event of any such reversion of title tc
Fieldstone and the availability of the trust fund provided
in Section V.D.2., Fieldstone shall accept and hold title
subject to the obligations of the Conservation Entity to
maintain the Conserved Habitat as provided in this
Agreement.
05-23-95 F:\WPDOC\O1\2110\9505AGR.IA 31
Unless and until Fieldstone completes the
conveyance of the Conserved Habitat as provided in this
Section V.A.l.b., Fieldstone shall continue to manage,
operate, and maintain those portions of the Conserved
Habitat not then conveyed in accordance with the HCP/OMSP
and this Agreement, until such conveyance is completed or
the termination of this Agreement with respect to such
unconveyed portions of the Conserved Habitat pursuant to
Section X. hereinbelow.
2. Convevance of Offsite Mitiqation Parcel
Prior to or concurrently with the earlier of:
(i) the recordation of any final subdivision tract map for
development within the Northwest Subarea; or (ii) any
disturbance of habitat by Fieldstone related to development
of the Project within the Impact Areas of the Northwest
Subarea, Fieldstone shall cause the "Offsite Mitigation
Parcel" to be conveyed as provided in Section VI.B.l.a.(2).
B. MAINTENANCE OF CONSERVED HABITAT BY FIELDSTONE
PENDING CONVEYANCE
Prior to conveyance of the Conserved Habitat pursuant
to Section V.A. above, Fieldstone, at its sole cost and
05-23-95 F:\WPDOC\01\2110\9505AGR.IA 32
expense, shall manage, operate and maintain the Conserved
Habitat and in accordance with the HCP/OMSP and this
Agreement. Such required Management activities, as detailec
in the HCP/OMSP, include:
1. the removal of trash resulting from dumping
in order to prevent disturbance and the establishment of
non-native weedy plant species;
2, trapping and removal of cowbirds for the
purpose of reducing the potential for cowbird parasitism of
the Gnatcatcher and other passerine nests in accordance wit1
the cowbird trapping program outlined in the HCP/OMSP and
the Addenda thereto; and
3. monitoring of the Conserved Habitat for the
I
presence of feral animals and, to the extent reasonably
practicable, exclusion of such animals from the Conserved
Habitat.
C. PROTECTION OF ON-SITE CONSERVED HABITAT IN
CONNECTION WITH DEVELOPMENT ACTIVITIES
Prior to the grading of any portion of the Impact
Areas reasonably adjacent to the Conserved Habitat,
Fieldstone shall:
05-23-95
F:\WPDOC\01\2110\9505AGR.IA 33
1.
activities and the adjacent Conserved Habitat so as to limit
access thereto; no construction access, parking or storage
of equipment or materials shall be permitted within
Conserved Habitat;
fence the boundary between the development
2. prior to any grading or vegetation removal,
conduct a survey, utilizing a monitoring biologist
(IIMonitoring Biologisti1) approved by FWS, DFG and the City,
which approval shall be expeditiously provided and shall noi
be unreasonably withheld, to locate on-site nests of
Gnatcatchers; nests shall be marked and mapped on the
project grading plan; and during breeding/nesting season fo:
the Gnatcatcher, no grading operations shall take place
within 500 feet of nests containing eggs or nestlings;
I
3. engage the Monitoring Biologist to be on-
site during brush clearing and grading operations affecting
CSS Habitat; the Monitoring Biologist shall flush
Gnatcatchers from occupied habitat areas immediately prior
to brush clearing and earth moving or, if they cannot be
flushed, they shall be captured in mist nets and relocated
to Conserved Habitat, and shall ensure that no Gnatcatchers
are directly removed by brush clearing or earth moving
equipment ;
05-23-95
F:\WPDOC\01\2110\9505AGR.IA 34
4. comply with City-mandated dust control
programs and periodically spray CSS Habitat vegetation in
the vicinity of construction with water to reduce dust
accumulated on leaves as necessary to avoid injury to the
vegetation; and,
5. minimize and mitigate the impacts on
Conserved Habitat in connection with any elements of the
Project or Plan Activities contemplated pursuant to Section
1V.G. hereinabove.
6. carry out such additional protective
measures as are provided for in the HCP/OMSP.
D. FUNDING
I
1. Bv Fieldstone
Fieldstone shall pay, or cause to be paid, the
amounts, and incur and bear the costs and expenses set fort
in this Section V.D.
a. Maintenance of Conserved Habitat
As provided in Section V.B,, above,
Fieldstone shall incur and pay the costs and expenses with
05-23-95
F:\WPDOC\O1\2110\9505AOR.IA 35
respect to the maintenance of the Conserved Habitat prior tc
conveying said parcels pursuant to Section V.A., above.
b. Citv HMP Procrram and Research
Prior to or concurrently with the
recordation of the first final subdivision tract map for
development within the Impact Areas related to the Project,
Fieldstone shall pay:
(1) to the City a sum of money, not tc
exceed one hundred fifty thousand dollars
($lSO,OOO), determined by the City as
necessary to fund the EiMP Program; and,
(2) to a person or entity, approved b:
I
FWS and DFG, the sum of fifty thousand
dollars ($50,000) to conduct research
regarding the Conservation of the
Gnatcatcher and CSS habitat.
2. Fundins of Lonq-term Maintenance of
Conserved Habitat
05-23-95
F:\WPDOC\01\2110\9505AGR.IA 36
a. Budset for Lons-term Maintenance and
Limit of Fieldstone Oblisation
Included in the Addenda to the HCP/OMSP is
the Budget for the annual costs with respect to the long-
term operation and management of the Conserved Habitat.
From and after the conveyance of the Conserved Habitat,
pursuant to Section V.A., above, Fieldstone shall have no
further obligation to incur or pay any costs or expenses
with respect to the Conserved Habitat, provided that, and
subject to the approval of FWS, a source of funding has bee1
established that will provide permanent funding in the
amount of the aggregate of the costs set forth in the
Budget o The following funding sources may be considered:
(1) an assessment or tax, such as, foi
1
example, an assessment pursuant to the
Habitat Maintenance Funding Act (Section
2900 et seq. of the California Fish and Game
Code) for a period of thirty (30) years;
(2) as to the Conserved Habitat only,
a covenant running with the land burdening
the residential development within the Plan
Area similar to that provided in the San
05-23-95
F:\WPDOC\01\2110\9505AGR.IA 37
Bruno Mountain Habitat Conservation Plan anc
Implementation Agreement; and,
(3) an endowment fund for such purpos~
held by the City, Conservation Entity or, a:
to the Conserved Habitat only, a homeowners
association, holding fee title to the
Conserved Habitat in an amount that when
invested at an interest rate of 6% would
provide an annual income (exclusive of
principal) equal to the annual costs set
forth in the Budget adjusted from time to
time for anticipated inflation.
Upon conveyance of fee title and
establishing a long-term source of funding acceptable to FW!
for the permanent maintenance of the Conserved Habitat, in
accordance with this Section and Section V.A. hereinabove,
Fieldstone shall thereupon and without further action of thc
Parties be released from its obligations under this
Agreement with respect to the further maintenance of the
Conserved Habitat. Concurrently therewith or thereafter an1
upon the request by Fieldstone, FWS, DFG and the City shall
execute and deliver to Fieldstone a written release of
Fieldstone confirming the foregoing.
be interpreted to release or require the release of
Nothing herein shall
05-23-95
F:\WPDOC\01\2110\9505AGR. 1A 38
Fieldstone for any liability for any breach in the
performance of its obligations hereunder occurring
said transfer.
prior tc
b. Public Efforts to Provide Lons Term
Funding
The City may consider any proposal to
utilize public funding mechanisms for the long-term
conservation of the Conserved Habitat under the HMP or MHCP
by use of funds available for Wildlife Conservation
purposes, including, but not limited to taxes, assessments
(such as those under the Habitat Maintenance Funding Act),
levies, grants or other funding provided from public
sources, including without limitation, the federal
government, State, and the NCCP Program. In the event that
the City chooses to fund the implementation of the HCP/OMSP I
as set forth in this Section by use of taxes, assessments 0:
levies that will affect the Project, Fieldstone shall, in
accordance with applicable law, cooperate with the City to
establish, and shall consent to, the imposition of
reasonable taxes, assessments or levies encumbering the
Impact Areas, but in no event exceeding $50.00 per residenc
or parcel per year (adjusted from time to time based on
changes in the Consumer Price Index ("CPI") for the Los
05 - 23-95
F:\WPDOC\01\2110\9505AGR.IA 39
Angeles/Anaheim/ Riverside All Urban Consumers Index
published by the U.S. Department of Labor).
c. Fundins throush Homeowners Association
and Endowment
It is acknowledged that it is preferable fo:
the maintenance of the Conserved Habitat to be undertaken b!
a Conservation Entity other than a homeowners association
and, accordingly, it is anticipated that public funding wil:
be provided for the maintenance of the Conserved Habitat as
provided above and shall be provided to the extent that
public funding generally is provided for the maintenance of
other lands to be conserved as habitat within the City. Thc
covenants effecting the charge, if covenants are utilized,
shall also provide that the charge shall be reduced and
offset to the extent that a tax or benefit or impact
assessment is levied on or with respect to any residences
subject to said pro-rata charge, or any private or public
funds become available, to provide for the maintenance of
the Conserved Habitat.
I
E. CONDITION PRECEDENT TO PERFORMANCE
It is a condition precedent to the obligations of
Fieldstone to convey-the Conserved Habitat, acquire and
05 -23-95
F:\WPDOC\01\2110\9505AGR.IA 40
convey the Offsite Mitigation Parcel, and pay the monies
required under this Section V. and to the authorization to
Fieldstone and the City to incidentally Take any Species of
Concern, that this Agreement has been entered into and the
General Plan has been amended as provided in Section 1V.F.
hereinabove, and are in full force and effect, free of all
outstanding litigation attacking the validity or effect of
this Agreement or the General Plan Amendment. The Parties
shall in good faith cooperate in the expeditious
consideration and adoption by the City of said General Plan
Amendment. The conditions precedent set forth in this
Section are for the benefit of and may be waived by
Fieldstone.
VI. CITY HMP; ADDITIONAL CONSERVATION; LONG-TERM
MANAGEMENT OF CONSERVED HABITAT AND RELATED MEASURES
I
A. CITY HMP
City shall use its best efforts to expeditiously
complete the HMP in accordance with the NCCP Program.
B. ADDITIONAL CONSERVATION TO BE PROVIDED UNDER
HMp
05-23-95 F:\WPDOC\01\2110\9505AGR.IA 41
1. Accru;s;t;on of Lands within the
Corridor between Carlsbad and the San Diemito
Rivemark Plannins Area
In the pre-permitting review of the
HCP/OMSP, a concern was raised regarding the tradeoff
requested by FWS, which is now reflected in the HCP/OMSP
(increasing Fieldstone's dedication of onsite acquisition 0:
southern maritime chaparral and decreasing the then propose(
offsite acquisition of 240 acres of Gnatcatcher habitat).
Acknowledging the foregoing, through the HMP and the MHCP,
the City shall act as the lead agency and cause to be
conveyed to the Conservation Entity, or another conservatioi
organization approved by CDFG and FWS, to be held for
wildlife conservation uses, an additional 240 acres of land:
of value to the Gnatcatcher (as habitat or for connectivity
within the corridor between the City and the San Dieguito i
Riverpark Planning Area ( "Off site Conservation Land&' I -
These lands shall be paid for from sources available for thc
implementation of the HMP and/or MHCP (in part by Fieldstonc
as provided below) and shall be designated, approved and
acquired in accordance with the following:
a. Prior to the approval and recordation
of any final subdivision map for any portion of the
05 -23-95 F:\WPDOC\01\2110\9505AGR.IA 42
Northwest Subarea or any City-permitted disturbance of the
Northwest Subarea:
(1) The City, as lead agency, shall,
with the approval of FWS and CDFG, designate
one or more candidate parcels that would be
acceptable as the Offsite Conservation Land;
. (designated and approved parcels are
hereinafter referred to as "Approved
Candidate Parcels") ; and,
(2) Fieldstone shall cause to be
conveyed to the Conservation Entity or
another conservation organization designate(
by FWS and DFG, fee title to a portion of
the Approved Candidate Parcels which are
designated in a written notice by the City,
as lead agency, to Fieldstone (together wit1
the conveyance of a conservation easement tc
DFG over said parcel, substantially the Sam
as the conservation easement provided for i
Section V.A.l.a., above), with a purchase
price to be paid by Fieldstone of not to
exceed $1,000,000, adjusted in accordance
with the Consumer Price Index ("CPI") for
Los Angeles/Anaheim/Riverside All Urban
I
05-23-95
F:\UPDOC\01\2110\9505AGR.IA 43
Consumers Index published by the U.S.
Department of Labor, from the Effective Date
until the end of the calendar month next
preceding the acquisition of the designated
parcel. (‘Off site Mitigation Parcel” ) .
City, FWS and DFG shall take all actions
reasonably requested by Fieldstone in order
to enable Fieldstone to complete said
conveyance within the reasonable time
constraints established by Fieldstone in
conjunction with the development of the
Impact Areas within the Northwest Subarea.
In the event that Fieldstone acquires the
Offsite Mitigation Parcel prior to the
conveyance thereof pursuant to this
Paragraph VI,B.l.a.(2), it shall hold and
maintain said parcel in the same manner as
provided in Section V.B. with respect to
Conserved Habitat.
I
b, The approved HMP shall identify the
Approved Candidate Parcels, any such lands that have been
acquired pursuant to the Fieldstone obligation, and the
method, source and timing of the acquisition of any Approve(
Offsite Conservation Lands left to be acquired. The City,
as lead agency, shali coordinate activities so that any
05 -23-95 F:\WPDOC\01\2110\9505AGR.IA 44
remaining lands to be acquired shall be acquired as
expeditiously as practicable, taking into consideration the
availability of funds under the HMP and MHCP. In any event,
the City cannot commit General Fund monies to this purpose.
c. As a condition to any conveyance
pursuant to and satisfying the requirements of this Section
VI.B., the following shall have been provided for through
the adopted HMP or MHCP, or in a manner otherwise approved
by FWS and CDFG:
term maintenance of the parcel to be conveyed, in a manner
similar to the Conserved Habitat, or in the event that the
HMP or MHCP has been approved by FWS and DFG, as provided ii
such approved HMP or MHCP; and, (ii) assurances that the
parcel shall be dedicated in perpetuity for wildlife
conservation (subject only to exceptions approved by FWS anc
CDFG) .
(i) funding and provision for the long-
I
2. Further Acauisition Discussions
Until the further sale of lands that it owns
within the Plan Area, Fieldstone shall continue to conduct
good faith, willing seller negotiations with the City, FWS
and CDFG for lands within the Impact Areas that may be
identified in connection with the development of the HMP an1
the MHCP as high conkervation value in relationship to
05-23-95
F:\WPDOC\01\2110\9505AGR.IA 45
regional conservation; provided, however, that the foregoins
shall not be construed as conveying an option to purchase 03:
as a limitation on the right of Fieldstone to develop the
lands within the Impact Areas or to sell the lands within
the Impact Areas to others for development purposes, and
that the foregoing shall not be considered as fulfilling an]
mitigation requirements of Fieldstone.
3. Risht of First Refusal
Concurrent with the taking effect of this
Agreement, Fieldstone, the City or its designee and the
holder of the deed of trust encumbering the lands owned by
Fieldstone within the Rancheros-Southeast I1 Subarea shall
have entered into a Right of First Refusal Agreement in the
form attached hereto as Exhibit 6.
I
C. LONG TERM MAINTENANCE OF CONSERVED HABITAT
Following the conveyance of the Conserved Habitat by
Fieldstone pursuant to Section V.A., the Conservation Entit]
shall manage and maintain the Conserved Habitat for wildlifc
conservation purposes in accordance with this Section VI.
05-23-95 F:\WPDOC\01\2110\9505AGR.IA 46
1. Creation of the HMP Conservancy
The City shall use its best efforts to establish
the IEMP Conservancy to accept fee title to the Conserved
Habitat as the Conservation Entity for Conservation purpose:
and to assume for the benefit of FWS and DFG the obligation
of maintaining the Conserved Habitat in accordance with this
Agreement and to assist the other Parties in obtaining tax,
benefit assessment or other funding for the Conservation of
such lands to provide the funding necessary to cover the
costs set forth in the Budget.
2- Annual Report, Prosram and Budset
Prior to February 1 of each year, the
Conservation Entity shall prepare and deliver to the
Wildlife Agencies and the City:
t
a. a report on the management of the
Conserved Habitat during the prior year (based on a calenda:
year), including information relating to the prior year
regarding: any monitoring and surveying for the Species of
Concern; expenditures by the Conservation Entity as compare1
with the Budget and Budget projections prepared as part of
the pervious year program;
05-23-95 F:\WPDOC\01\2110\9505AGR.IA 47
b. any Taking of the Species of Concern b.1
the Conservation Entity in the Management: of the Conserved
Habitat; and,
c. a proposed program for the current yea]
(and first two months of the next succeeding year),
including: proposed enhancement, research and monitoring
activities, together with a proposed Budget projection as
compared with the Budget and expenditures for the then next
preceding year.
3. CooDeration of Wildlife Asencies and the
Citv
In the implementation of this Agreement and the
HCP/OMSP, the Wildlife Agencies and City, at their own cost
and expense and subject to the availability of appropriated
funds, shall observe and perform the obligations which are
to be observed or performed by them as set forth in this
Agreement.
The Wildlife Agencies and City shall
expeditiously, in good faith using their best efforts,
cooperate with Fieldstone in the implementation, performancl
and observance of the provisions, and in obtaining the
objectives of this Agreement. Such cooperation shall
05 - 23 - 95 F:\WPDOC\OI \2110\9505AGR. IA 48
include, for example: technical, monitoring (em, in
connection with the monitoring under permits and MOUs issuec
and entered into pursuant to this Agreement) and research
assistance, consultation and advice with respect to the
maintenance of the Conserved Habitat.
4. Coordination of Conservation and Manasement
Measures with Other Conservation Proqrams
The Parties shall cooperate in expeditiously
approving the Offsite Conservation Lands to be acquired and
conveyed, as provided for in Section VI.B.l. hereinabove, ii
coordination 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 I participate in broader
conservation plans or programs, and Fieldstone and the City,
and Fieldstone or the City, as appropriate, would be
thereupon subject to the restrictions of such broader plans
and programs and would have the right to participate in and
receive and apply to the implementation of the HCP/OMSP the
benefits of such plans, including but not limited to the
benefit of taxes, assessments, levies, grants or other type
of funding provided for Wildlife, acquisition, or
Conservation purposes from any public or private source,
05 - 23-95
F:\WPDOC\01\2110\950SAGR~~A 49
including without limitation the State, the NCCP Program,
and the HMP Program.
5. Enhancement of San Marcos Creek Habitat
The parties shall use their best efforts to
encourage the Conservation of those lands immediately
outside the Plan Area that are located within and adjacent
to San Marcos Creek.
6. Relocation of SDG&E Easements
It is acknowledged that the Parties do not own 03
control the SDG&E easements as shown on the Map.
request of Fieldstone, the Parties shall use their best
efforts, consistent with each of their individual
authorities and jurisdictions, to cooperate in the
relocation and consolidation of the southern-most SDG&E
easement into the northern-most SDG&E easement, all in a
manner that will minimize to the maximum extent practicable
the impact on the Species of Concern resulting therefrom.
Without limiting the generality of the foregoing, upon the
request of Fieldstone, the Wildlife Agencies shall consult
with the Parties in determining the most effective and
efficient ways in which to minimize and mitigate the impact:
of any such consolidition on the Species of Concern.
Upon the
I
05-23-95
F:\WPDOC\01\2110\9505AGR.IA 50
VII. UNFORESEEN CIRCUMSTANCES
A. IN GENERAL
The Parties have made every effort to anticipate the
conservation measures necessary to Conserve the Species of
Concern within the Conserved Habitat and Offsite Mitigation
Parcel and have consulted the best available scientific and
other information. The HCP/OMSP reduces the potential for
adverse Unforeseen Circumstances on the Species of Concern
to a level of insignificance.
Circumstances result in, or threaten, a substantial change
in the population of any Species of Concern, as determined
pursuant to the procedure outlined below, the parties shall
cooperate to resolve the adverse impacts in accordance with
this Section VII.
Should adverse Unforeseen
B. PROCEDURE FOR DETERMINING OCCURRENCE OF
UNFORESEEN CIRCUMSTANCES
As a condition precedent to making any determination
regarding the occurrence of any Unforeseen Circumstances,
the agency making the determination shall strictly comply
with the following procedure:
05 - 23-95 51 F:\WPDOC\01\2110\9505AGR-IA
1. Notice to Parties
At least thirty (30) days prior to making a
determination, the agency shall provide written notice to
the other Parties of its intention to consider making the
determination, together with a detailed statement of the
facts regarding the Unforeseen Circumstances involved and
the anticipated impact thereof on the respective Species of
Concern and all supporting information.
2. Submission of Information bv Other Parties
The other Parties shall have a meaningful
opportunity to submit information to the determining agency
and shall submit said information within thirty (30) days oj
said notice. Upon written request by any Party to, and the
approval of, the determining agency, which approval will not
be unreasonably withheld, the time for submission of said
information may be extended.
3. Findinss
The agency making the determination shall have
the burden of demonstrating that Unforeseen Circumstances
exist, using the best scientific and commercial data
available. The Service’s findings must be clearly
05 -23-95 F:\WPDOC\01\2110\9505AGR.IA 52
documented and based upon reliable technical information
regarding the status and habitat requirements of the
affected species.
C. RESPONSE TO OCCURRENCE OF UNFORESEEN
CIRCUMSTANCES
If a Wildlife Agency determines that Unforeseen
Circumstances have occurred in accordance with Section
VII.B., hereinabove, and that additional mitigation from
Fieldstone or the City is required to address such
circumstances, and provided that Fieldstone and the City
have fully complied with the terms of the HCP/OMSP, such
mitigation shall limit changes to the original terms of the
HCP/OMSP to the maximum extent possible and shall be limitec
to modifications within the Conserved Habitat and Offsite
Mitigation Parcel or to the HCP/OMSP’s operating
conservation program for the affected Species of Concern.
Additional mitigation requirements shall not involve the
payment of additional compensation or apply to parcels of
land available for development or land management under the
original terms of the HCP/OMSP without the consent of
Fieldstone and the City. FWS shall retain the right, as
authorized under Section 5 of the ESA, to acquire endangerec
or threatened species habitat by purchase when additional
05 -23-95 F:\WPDOC\01\2110\9505AGR.IA 53
conservation measures are necessary for a listed Species of
Concern under the HCP/OMSP.
VIII. AMENDMENTS, MINOR ADJUSTMENTS AND EMF,RGENCY ACTIONS
A. FURTHER ACTIONS AND AMENDMENTS
From time to time hereafter, the Parties shall executl
such instruments and other documents and take such other
actions, upon the request of the other, as may be necessary
or desirable to carry out the intent of this Agreement.
This Agreement and the HCP/OMSP shall not be amended or
modified in any way except by a written instrument executed
by the Parties. Material changes, other than Minor
Adjustments, to the HCP/OMSP shall be processed as an
amendment to the Section 10(a) permit in accordance with
CESA and ESA and permit regulations at 50 C.F.R. Parts 13
and 17 and shall be subject to appropriate environmental
review.
I
B. MINOR ADJUSTMENTS
Minor Adjustments in the Conservation measures under
the HCP/OMSP and this Agreement and all permits and MOUs
issued or entered into pursuant hereto may be approved by
Field Supervisor of FWS, on behalf of FWS, and Director of
05 - 23-95
Ft\WPDOC\01\2110\9505AGR.IA 54
DFG, on behalf of DFG, and shall take effect upon the
written approval of all the Parties and without further
amendment of the HCP/OMSP, this Agreement or said permits
and MOUs. Upon the written request for the approval of a
Minor Adjustment pursuant to this Section VIII., the Parties
shall use their best efforts to expeditiously consider and,
if appropriate, approve said request within thirty (30) days
of said request. -
C. ACTIONS TO PROTECT HUMAN HEALTH AND SAFETY
Nothing in this Agreement shall be interpreted as an
additional constraint beyond those provided in law,
prohibiting Fieldstone or the City from Taking a Species of
Concern in accordance with 16 U.S.C. § 1540 (a) (3).
IX. MAG PARCEL
The HCP/OMSP as implemented by this Agreement provides
adequate Mitigation measures for potential significant
adverse impacts to the Species of Concern from the
development of the MAG Parcel. Both the HCP/OMSP and this
Agreement were prepared at the sole cost and expense of the
City and Fieldstone and any right of the owners or
developers of the Mag Parcel to incidentally Take any Liste
Species of Concern with respect to the Mag Parcel under the
05 - 23-95 F:\WPDOC\01\2110\9505AGR.IA 55
Section lO(a) Permit and Section 2081 MOU contemplated by
this Agreement shall be derived from the City in connection
with the approval of the development of the Mag Parcel unde:
the City Regulations.
As a condition precedent to permitting or allowing the
enjoyment of the Section lO(a) Permit and Section 2081 MOU
by the Mag Parcel owners or developers, the City shall
require: (1) the full reimbursement to Fieldstone of an
equitable portion attributable to the Mag Parcel of the
Mitigation measures and the costs and expenses related to
the preparation and implementation of the HCP/OMSP and this
Agreement as approved by Fieldstone; and, (2) the assumptio
by the owners of the Mag Parcel of the obligations under
this Agreement as they relate to the Mag Parcel (such as,
for example, the commitment not to disturb CSS Habitat prio
to the dedication of the Conserved Habitat as provided in
Section V.A. above).
I
Notwithstanding the foregoing, the owner of the MAG Parcel
is not now and under no circumstances shall be a third part
beneficiary of this Agreement or any of the rights or
interests of Fieldstone or any other Party hereunder. It i
acknowledged that MAG Properties, in its discretion, may
elect not to seek or obtain from the City the benefit of th
Section lO(a) Permit, and the Section 2081 MOU, and may
05-23-95 F:\WPDOC\01\2110\950SAGR.IA 56
independently seek to obtain such permits and authorization!
directly from the Wildlife Agencies or to otherwise comply
with applicable law, including the Wildlife Regulations. 11
such event, the Parties shall in good faith consider the
amendment of the HCPJOMSP, the Section 10(a) Permit and the
Section 2081 MOU to delete the Mag Parcel and to equitably
reduce, if appropriate, the obligations of Fieldstone
thereunder and under this Agreement. .
X. TERMINATION BY FIELDSTONE
Prior to the more than deminimis disturbance of any habitat
occupied by the Species of Concern within the Plan Area,
Fieldstone shall have the right, at its option, and upon
thirty (30) days written notice to the other Parties, to
terminate this Agreement in whole. Prior to more than
deminimis disturbance of any habitat occupied by a Species
of Concern within a particular Subarea, Fieldstone shall
have the right, at its option, and upon thirty (30) days
written notice to the other Parties, to terminate this
Agreement as to the affected Subarea. From and after the
effective date of such termination, the Parties shall have
no further rights or obligations under this Agreement in
whole or, in the event that Fieldstone terminates the
Agreement with respect to a Subarea, as to the Subarea
affected.
05-23-95 F:\WPDOC\01\2110\9505AGR.IA 57
In the event that this Agreement is terminated as to only
one Subarea, the obligations of Fieldstone to pay monies
under Section V. and to maintain the Conserved Habitat shal:
be proportionally reduced on the basis of the number of
acres of Conserved Habitat within each Subarea, except that
the acquisition and conveyance of the Offsite Mitigation
Parcel and the establishment of a source of funding for the
permanent maintenance of said parcel, as provided for in
Section VI.B.l.a.(2), shall be allocated entirely to the
Northwest Subarea.
Any such termination by Fieldstone shall be grounds for FWS
or DFG to revoke, respectively, the Section 10(a) Permit or
the Section 2081 MOU, in whole or as to the affected
Subarea.
t In the event that Fieldstone has conveyed any Conserved
Habitat or other lands and paid monies with respect to the
Subarea as to which this Agreement has been terminated in
accordance with this Section X., the Parties shall cooperatc
to effect an equitable reimbursement of monies paid and
reconveyance of the Conserved Habitat and other lands to
Fieldstone.
In the event that Fieldstone terminates this Agreement in
whole or as to any Subarea pursuant to this Section X., the
05-23-95
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1
Parties shall have no further rights or obligations under
this Agreement in whole or, in the event that the
termination is only with respect to a Subarea, as to the
Subarea affected, except with respect to rights and
obligations with regard to which Fieldstone is then in
violation. In the event the termination is only with
respect to a Subarea, the provisions of this Agreement shall
remain in full force and effect as to the unaffected
Subarea.
XI. ENFORCEMENT AND REMEDIES
A. IN GENERAL
Except as set forth in this Agreement, the Parties
shall have all of the remedies available in equity
(including specific performance and injunctive relief) and
at law to enforce the terms of this Agreement and any
Section 10(a) Permit and Section 2081 MOU, in accordance
with and subject to the following:
B. REVOCATION AND TERMINATION
FWS and DFG shall have the right to revoke, terminate
or suspend, respectively, the Section IO(a) Permit and the
Section 2081 MOU, or'any other Section lO(a) permit or
05 -23-95
F:\WPDOC\01\2110\9505AGR.IA 59
Section 2081 MOU issued pursuant to this Agreement, in the
event of a material breach or violation of any such permit
or MOU, the HCP, this Agreement or governing law. The
regulations found at 50 C.F.R. §§ 13.27-13.29 shall govern
the suspension and revocation or termination of any Section
lO(a) Permit issued by FWS under this Agreement.
C. NOTICE AND OPPORTUNITY TO CURE
Under applicable regulations or otherwise, Fieldstone
and the City shall be provided with reasonable notice of an
an opportunity to cure any breach of any Section 10(a)
permit, Section 2081 MOU or this Agreement before a
termination of the rights of Fieldstone or the City
thereunder.
D. SEVERABILITY
It is contemplated that Fieldstone may convey portion
of the Impact Areas to others and that the City may develop
portions of Rancho Santa Fe Road independently of
Fieldstone. Accordingly, under certain circumstances the
obligations of the City and Fieldstone, and remedies with
respect to breaches thereof, shall be severed as follows.
05-23-95 F:\WPDOC\01\2110\9505AGR.IA 60
1. Fieldstone as to Project and Plan Activitie:
and City as to Rancho Santa Fe Road
After conveyance of the Conserved Habitat as
provided in Section V.A., no default by Fieldstone shall
adversely affect or be the basis for a default by, or the
termination or suspension of the rights of, the City under
this Agreement or the Permits and MOU with respect to the
Rancho Santa Fe Road or the Mag Parcel; and, (2) no default
by the City shall adversely affect the rights of, or be the
basis of, a default by Fieldstone under this Agreement or
the Permits or MOUs, with respect to the Project or Plan
Activities by Fieldstone.
2. Convevance of Parcels bv Fieldstone
I After the conveyance of the Conserved Habitat an
Offsite Mitigation Parcel, respectively, as provided in
Section V.A., and the conveyance of any portion or portions
of the Impact Areas by Fieldstone to a transferee or
transferees approved by the Wildlife Agencies pursuant to
Section XIII-C., below, no default or act of Fieldstone or
any such transferee shall affect the rights or be the basis
for a default under or the termination or suspension of thi
Agreement, or any of the Permits or MOUs, with respect to
Fieldstone or any other transferee who did not so default c
05-23-95
F:\WPDOC\01\2110\9505AGR.IA 61
act ("Non-defaulting Parties") or with respect to any
portions of the Impact Areas owned, or the Project or Plan
Activities to be undertaken with respect to such Impact
Areas, by such Non-defaulting Parties. Notwithstanding the
foregoing, the obligation to convey the Offsite Mitigation
Parcel pursuant to Sections V.A.2. and VI.B.l.a.(2) shall
relate to all of the Northwest Subarea, and any default wit
respect thereto will be a basis for the termination of'this
Agreement and the Section lO(a) Permit and Section 2081 MOU
with respect to the Northwest Subarea.
E. UNIOUE WILDLIFE RESOURCES; IRREPARABLE INJURY
Each Species of Concern and the Conserved Habitat are
unique and any significant adverse impact, damage or loss
with respect thereto would result in irreparable damage to
i
the environment. Accordingly, temporary injunctive relief,
specific performance or declaratory relief may be
appropriate in certain instances involving a breach of this
Agreement.
F. NO LIMITATION IN AUTHORITY
This Agreement shall not limit the authority of FWS o
DFG to invoke the penalties provided in or otherwise enforc
the provisions of ESA, CESA, or any similar statutes.
05-23-95 F:\WPDOC\01\2110\9505AGR.IA 62
XII. NO FURTHER MITIGATION
A. NO FURTHER MITIGATION
In that the purposes of this Agreement are to provide
for the long-term reconciliation of Wildlife Conservation
and economic development with respect to the Plan Area and
Plan Activities and the maximum degree of certainty
practicable, FWS, DFG and the City shall not request,
impose, recommend or require any further Mitigation related
to impacts of the Plan Activities on the Species of Concern
or their habitat, except as expressly set forth in Section
VII. of this Agreement with respect to Unforeseen
Circumstances.
foregoing, for purposes of this Agreement, the Conserved
Habitat is to be viewed as independent from the Impact
Areas, with all buffers for purposes of Wildlife
Conservation being located within the Conserved Habitat. I
this regard, under no conditions shall any of the Parties
require, request or recommend that any buffers for the
Conservation of any Species of Concern be located within an
Impact Area.
Without limiting the generality of the
05-23-95 F:\WPDOC\01\2110\9505AGR.IA 63
XIII. MISCELLANEOUS PROVISIONS
A. INCORPORATION OF THE HCP/OMSP
The HCP/OMSP and each of its terms are intended to be
and by this reference are, incorporated in this Agreement.
In the event of any direct contradiction between the terms
of this Agreement and the terms of the HCP/OMSP, the terms
of this Agreement shall control. In all other cases, the
terms of this Agreement and the terms of the HCP/OMSP shall
be interpreted as supplementary to each other. In
interpreting the HCP/OMSP, consideration shall be given to
the fact that the HCP/OMSP was not drafted as a legal
document.
B. ENTIRE AGREEMENT
This Agreement supersedes all other agreements, eithe
oral or in writing, between the Parties 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 matter. Each Party
acknowledges that no representation, inducement, promise or
agreement, oral or otherwise, has been made by any other -.
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Party or anyone acting on behalf of any Party that is not
embodied in this Agreement.
C. ASSIGNMENT AND DELEGATION
This Agreement shall be binding upon and inure to the
benefit of the Parties and their successors and assigns.
Upon any assignment and delegation of the rights and duties
of this Agreement incidental to a conveyance of a portion o
the Plan Area, and with the written approval of FWS and DFG
which shall not be unreasonably withheld, the assignor shal
be released from and shall no longer have any obligation,
responsibility, liability, covenant, right or duty under
this Agreement relating to such portions of the Plan Area s
conveyed; provided, however, that prior to such written
approval by FWS and DFG with respect to any such assignment
and delegation, as provided above, the respective assignor
shall remain obligated under this Agreement and following
such assignment, and notwithstanding the approval thereof b
FWS and DFG, such assignor or delegator shall remain liable
for any breach of this Agreement occurring before such
assignment or delegation. Upon request by any Party, the
Parties shall expeditiously acknowledge such release in
writ ing .
I
05 -23-95 F:\WPDOC\01\2110\9505AGR.IA 65
In the event that FWS or DFG fails to provide written
acknowledgement of such release, or a written statement of
the reasons for not providing such acknowledgement, within
thirty (30) days following receipt of the written request
therefor by a Party, such release shall be deemed
acknowledged and said non-responding agency shall thereafte:
be estopped from denying such release.
It is acknowledged that the rights and duties of the
Permittees under any Section 10(a) permit are not
assignable. Notwithstanding any of the foregoing to the
contrary, the City's rights and privileges under any Permit
and MOUs issued or entered into pursuant to or as
contemplated by this Agreement shall inure to the benefit o
the City and, subject to the satisfaction of the following
conditions, to successors-in-interest to Fieldstone and the
owners of the Mag Parcel, subject to full compliance with
Section IX. of this Agreement, (for purposes of this
Section, any such successor is referred to as "Successor
Landownerrr).
benefit from the City's rights and privileges under any of
the Permits and MOUs, the Successor Landowner shall have
fully complied with the following conditions:
As a condition precedent to being able to
1. The Successor Landowner shall have been -. assigned by its predecessor-in-interest, Fieldstone or the
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F:\WPDOC\01\2110\9505AGR.IA 66
owners of the Mag Parcel (including through mesne
conveyances), the rights and interests of such predecessor
under and with respect to this Agreement;
2. The Successor Landowner shall have assumed
in writing for the benefit of the City, FWS and CDFG, the
obligations of its predecessor, Fieldstone or Mag Parcels,
as appropriate, under this Agreement and the Permits and
MOUs with respect to the lands owned by the Successor
Landowner ; and ,
3. The Successor Landowner shall have been
issued a grading or building permit by the City authorizing
the specific activities that would result in the Take of
Species of Concern as contemplated under this Agreement and,
in connection therewith, shall have entered into a further
agreement with the City (with FWS and CDFG named therein as
beneficiaries), providing for the supervision by the City of
said activities to assure compliance with this Agreement and
the Permits and MOUs. Upon the request of a Successor
Landowner, the City shall act expeditiously to consummate
such an agreement.
I
In exercising the rights and privileges of the
City under any of the Permits and MOU, the Successor
Landowner is acting &der the Permits of the City, and the
05 - 23-95 F:\WPDOC\O1\2110\9505AGR. IA 67
City shall take all actions to reasonably assure that the
Successor Landowner complies with the provisions of this
Agreement and the Permits and MOUs.
As an alternative to relying upon the rights and
privileges of the City with respect to the Permits and MOUs
and provided that it has been assigned the rights and
interests under this Agreement, a Successor Landowner,
subject to compliance with Section IX., if applicable, may
apply for one or more new Permits or MOUs. The Resource
Agencies shall not require as a condition of issuing or
entering into any of the new Permits and MOUs that the
Successor Landowner provide any undertakings or mitigation
in addition to those set forth in or contemplated by this
Agreement, and shall use their best efforts to process the
Permits and MOUs within sixty (60) days of receipt of a
complete application therefor.
I
D. 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. 8
05 - 23-95
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E. 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.
F. 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.
G. TIMING
I
Time is of the essence in the performance of this
Agreement.
H. 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.
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F:\WPDOC\01\2110\9505AGR.IA 69
I. 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.
J. 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 Offsite
Mitigation Parcel for purposes other than the stated
Conservation and Management purposes of this Agreement, ther
the United States, the California Attorney General and the
citizens of California shall have standing to sue DFG for
such breach or nonconforming use.
be construed to grant standing to sue any Party other than
DFG to any person or entity.
I This provision shall not
K. BENEFIT OF THE AGREEMENT
Without limiting the applicability of the rights
granted to the public pursuant to the provisions of 16
U.S.C. 1540(g), the Parties intend that only the Parties to
this Agreement shall-benefit from the Agreement. This
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F:\WPDOC\01\2110\9505AGR.IA 70
Agreement shall not create in the public, any member of the
public or any other person or entity, any rights as a third-
party beneficiary to this Agreement, nor shall it authorize
anyone not a Party to this Agreement to maintain a suit for
injuries or damages under the provisions of this Agreement.
L. EMINENT DOMAIN
Nothing herein shall be construed to limit the power
of eminent domain held by any public agency.
M. FORCE MAJEURE
In the event that a Party is wholly or partly
prevented from performing its obligations under this
Agreement because of unforeseeable causes beyond the
reasonable control of and without the fault or negligence 01
such Party (Itforce majeuref1), 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:
05 - 23-95 F:\WPDOC\01\2110\9505AGR-IA 71
1. within fourteen (14) days after the
occurrence of the force majeure, the Party prevented from
performing gives the other Parties written notice describin!
the particulars of the occurrence;
2. the suspension of performance is of no
greater scope and no longer duration than is required by thc
force ma j eure ;
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 an]
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; an(
4. when the Parky prevented from performing is
able to resume. performance of its obligations hereunder,
such Party shall give the other Parties notice to that
effect .
N. 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
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F:\WPDOC\01\2110\9505AGR.IA 72
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
4565 Morehouse Drive, Suite 250 San Diego, California 92121
Limited Partnership
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 Imine, California 92715
If to FWS:
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
and
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
05-23-95
F:\UPDOC\01\2110\9505AGR.IA 73
If to DFG:
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
and
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/Fields tone 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
0. ATTORNEYS’ FEES I
Each Party shall bear and pay its own actual attorney!
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 noi
limited to, the Equal Access to Justice Act (28 U.S.C.
§ 2412).
05 -23-95
F : \WPDOC\01\2110\9505AGR - I A 74
P. EFFECTIVE DATE
This Agreement shall take effect as of the date of thc
issuance of the Section lO(a) Permit as contemplated by
Section IV. and shall be effective when executed by FWS, thl
City and Fieldstone with respect to the rights and duties o
those Parties and with respect to all of the Parties
thereupon or thereafter when DFG has also executed the
Agreement and issued the Section 2081 MOU. Any of the
Parties may insert the date of said issuance of the Section
10(a) Permit in the space provided therefor on page 1 of
this Agreement.
Q. 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.
I
05 -23-95 F:\WPDOC\01\2110\9505AGR.IA 75
IN WITNESS WHEREOF, the parties execute this Agreement
to be in effect as of the first written above.
II FWS I!
UNITED STATES FISH AND WILDLIFE SERVICE
Date : By : Thomas J. Dwyer, Deputy
Regional Director
Approved as to form:
Date:
Lynn Cox, Assistant Regional Solicitor
"DFG"
CALIFORNIA DEPARTMENT OF FISH AND GAME
Date: By : Boyd Gibbons, Director
I
APPROVED AS TO FORM:
Date:
Craig Manson, General Counsel California Department of Fish and Game
[Signatures Continue]
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F:\WPDOC\01\2110\9505AGR.IA 76
I' 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, Senior Project Manager
APPROVED AS TO FORM:
Lindell L. Marsh, Esq. Siemon, Larsen & Marsh
"THE CITY"
THE CITY OF CARLSBAD, California
DATE : By :
Claude A. Lewis, Mayor
t APPROVED AS TO FORM:
Ronald R. Ball, City Attorney
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F:\WPDOC\01\2110\9505AGR.IA 77
EXHIBIT 1
TO THE IMPLEDSEXTATION AGREEMENlc REGARDING
THE CITY OF CARLSBAD/FIELDSTONE/LA COSTA ASSOCIATES
HABITAT CONSERVATION PLAN/ON-GOING HULTI-SPECIES PLAN
Glossary
1. "Biological Opinion" has the meaning set forth ii
2. frCEQAfl means the California Environmental Qualit]
50 CFR § 402.02.
Act (California Public Resources Code §§ 21000 - et w.) and the guidelines and regulations
promulgated pursuant thereto (including, without limitation, 14 California Code of Regulations
§§ 15000 et seq.) .
3. ffCESAn means the California Endangered Species Ai (California Fish and Game Code §§ 2050 & m.1 aj the regulations promulgated in connection with th< Act (including, without limitation, 14 California
Code of Regulations §§ 40, 41, 243, 670.1 and
670.5).
4. IrConservationff means the same as set forth in 16
U.S.C. § 1532.
5. ffCSS1r means coastal sage scrub.
6. ffDFGrr means the California Department of Fish an( Game, an agency of the State of California.
7. IfESAfr means the federal Endangered Species Act (
U.S.C. §§ 1531 et m.) and the regulations
promulgated in connection with that Act (includin without limitation, 50 C.F.R. Parts 13, 17, 402 a
424) -
8. "FWS" means the United States Fish and Wildlife
Service, an agency of the Department of Interior
the United States.
9. "Gnatcatcher" means the subspecies known as the
10. ifImpact Areafr and IrImpact AreasN mean,
PolioDtila californica californica.
respectively, a portion or portions of the Plan
Area, as shown on the Map, which are excluded fro
Fieldstone/Carlsbad HCP/OMSP
Implementation Agreement ,
Exhibit 1.
Conserved Habitat and will be developed as a part
of the Project .
thereunder as "threatened" or lfendangeredfl ; and,
with respect to CESA, listed thereunder as
llthreatenedll or I1endangered1I or a "candidate" for such listing.
11- "ListedR means: with respect to ESA, listed
12. WBTA 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 Conceri
13. "MHCP Program" means the program sponsored by thc North County Wildlife Forum of San Diego County, : cooperation with FWS and DFG and in accordance wil
the NCCP Program, for research and development of subregional Multiple Habitat Conservation Plan fo:
the conservation of multiple types of habitat and sensitive species that occupy or use lands locate1 within northern San Diego County.
14. lrMBTAN means the Migratory Bird Treaty Act, 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.
15. IIMBTA Permit" means a permit issued under the
16. "Mitigation" has the same meaning as set forth i: CEQA (14 Cal. Code of Regulations § 15370) and in NEPA (40 C.F.R. § 1508.201, and includes, among other things, the designation or reservation of land as open space or funding to provide for the Conservation of the Species of Concern.
17. flNCCP" means a natural cornunity conservation pl prepared pursuant to the NCCP Act.
18. IfNCCP Act" means the Natural Community
MBTA .
Conservation Planning Act enacted by Chapter 765 California statutes of 1991 (A.B. 2172) (codified
et -.).
California Resources Agency and DFG under the NCC
in part in California Fish and Game Code §§ 2800
19. "NCCP Programf' means the pilot program of the
Fieldstone/Carlsbad HCP/OMSP
Implementation Agreement Exhibit 1.
Act undertaken 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.
20. WEPA1l means the National Environmental Policy Ac
of 1969 (42 U.S.C. §§ 4321 et m.) and the regulations promulgated in connection with that Ac (including, without limitation, 40 C.F.R. §§ 1500 - et -.I.
entities and agencies, or one of the entities or
agencies, that have executed this Agreement.
21. "Parties" and "Party" mean, respectively, the
22. rrPermittee" and "Permittees" mean, respectively,
the entity or entities entitled to the benefit of any authorization of Take pursuant to a Section lO(a) Permit, Incidental Take Statement,
Section 2835, Section 2081 MOU or MBTA Permit
issued pursuant to this Agreement, and may includ one or all of the City, Fieldstone and the owner 1 the MAG Parcel, as set forth in this Agreement.
23. l'Section 4(dln means Section 4(d) of ESA, 16
24. "Section IO(a1" means Section 10 (a) of ESA, 16
U.S.C. § 1533(d).
U.S.C. § 1539, and the rules, regulations, or
guidelines promulgated in connection with that
statutory provision, including, without limitatio
50 C.F.R. § 17.22.
25. "Section 1U(a) Permit" means: (1) a permit issue
under Section 10(a) (1) (B) of ESA (16 U.S.C.
§ 1539(a) (1) (B)) to permit the incidental Take of
ESA Listed Species of Concern; or (2) permission
authorization under any other federal law or regulation that permits the Take of ESA Listed Species of Concern.
26. 'ISection 2081" means California Fish and Game Co
§ 2081, and any rules, regulations, or guidelines promulgated in connection with that statutory provision.
27. "Section 2081 MOU" or I1M0Ul1 means: (1) a
memorandum of understanding entered into by DFG under Section 2081 and consistent with CESA
authorizing the Take of a Species of Concern List
Fieldstone/Carlsbad HCP/OPISP Implementation Aareement
Exhibit 1.
under CESA; or (2) permission or authorization
under any other state law or regulation, includin!
without limitation Section 2835, that permits the
Take of a Species of Concern Listed under CESA or
provided with protection under new or revised Stal
laws substantially similar in effect to the protection provided under CESA.
28. "Section 2835" means California Fish and Game Coc si 2835, and all rules, regulations or guidelines promulgated in connection with that statutory provision.
Takeff and frTakingfi 29. mean the same as set forth ii ESA on the Effective Date.
30. "Unforeseen Circumstancelf means an extraordinary circumstance taking into consideration, or change
in, existing or anticipated biological conditions (including a circumstance or change disclosed in public comments on future permit applications, consultations and rules) that: (i) is significant and adverse with respect to the continued existen of a Species of Concern; and, (ii) was reasonably
unforeseen by the Wildlife Agencies as of the Effective Date.
31. Wildlifefi means all wild animals, birds, plants fish, amphibians, reptiles and related habitat an(
ecological communities upon which such wildlife depends.
respectively, eitMr or both of FWS or DFG, as th 32. "Wildlife Agency" or Wildlife Agenciesii means,
context requires.
Fieldstone/Carlsbad XCP/OMSP
Implementation Aqreement Exhibit 1.
EXBIBIT 2
TO TEE IMPLEMENTATION AGREEXEXE REGARDING
TBE CITY OF CARLSBAD/FIELDSTONE/LA COSTA
ASSOCIATES EABITAT CONSERVATION PLAN/ON-GOING
MULTI-SPECIES PLAN
The MaR
I
Fieldstone/Carlsbad ECP/OMSP Implementation Agreement ' Exhibit 2.
EXHIBIT 3
TO THE IMPLEMENTATION AGREEMENT REGARDING
THE CITY OF CARLSBAD/FIELDSTONE/LA COSTA ASSOCIATES
HABITAT CONSERVATION PLAN/ON-GOING =TI-SPECIES PLAN
List of Species of Concern
from ADproved Habitat Conservation Plan
Plants
1. Encinitas baccharis (Baccharis vanessae) (endangered) 2. San Diego thorn mint (Acanthomintha ilicif.olia)
3. Thread-leaved brodiaea (Brodiaea filifolia) (endangere
4. Ashy spike-moss (Selaginella cinerascens)
5. Blochman’s dudleya (Dudleya blochmaniae ssp.
6. California adder’s tongue (Ophioglossum californicum)
7. California adolphia (Adolphia californica)
9. Coast white lilac (Ceanothus verrucosus)
10. Del Mar manzanita (Arctostaphylos glandulosa ssp.
11. Del Mar Mesa sand aster (Corethrogyne filaginifolia va
12. Engelmann oak (Quercus engelmannii)
13. Nuttall’s scrub oak (Quercus dumosa)
14. Orcutt’s brodiaea (Brodiaea orcuttii)
15. Orcutt’s hazardia (Hazardia orcuttii)
16. Palmer’s grapplinghook’(Harpagonel1a palmeri)
17. San Diego ambrosia (Ambrosia pumila)
18. San Diego Coast barrel cactus (Ferocactus viridescens)
19. San Diego County viguiera (Viguiera laciniata)
20. San Diego Goldenstar (Muilla Clevelandii)
21, San Diego marsh elder (Iva hayesiana) 22. San Diego sagewort (Artemisia palmeri)
23. Southwestern spiny rush (Juncus acutus ssp. leopoldii)
25. Summer holly (Comarostaphylis diversifolia ssp.
26. Western dichondra (Dichondra occidentalis)
(endangered)
blochmaniae)
8. Cliff spurge (Euphorbia misera)
crassif olia)
linf olia)
24. Sticky-leaved liveforever (Dudleya viscida)
diversif olia)
Fieldstone/Carlsbad HCP/OMSP Implementation Agreement
Exhibit 3.
Invertebrates
27. Dun skipper (Euphyes vestris harbinsoni)
28. Hemes copper (Lycaena hemes)
AmDhibians
29.
30. Western spadefoot (Scaphiopus hammondii)
ReDt iles
California red-legged frog (-Rana aurora draytonii)
31. Coastal rosy’boa (Lichanura trivirgata rosafusca)
32 Coastal western whiptail (Cnemidophorus tigris mu1 t i s cut a tu s )
33. Coast patch-nosed snake (Salvadora hexalepis virgultea
34. Coronado skink (Eumeces skiltonianus interparietalis)
35. Northern red diamond rattlesnake (Crotalus ruber ruber
36. Orange-throated whiptail (Cnemidophorus hyperythrus beldingi) 37. San Diego banded gecko (Coleonyx variegatus abbitti)
38. San Diego horned lizard (Phrynosoma coronatum blainvillei)
39. San Diego ringneck snake (Diadophus punctatus sirnilis)
40. Silvery legless lizard (Anniella pulchra pulchra)
41. Southwestern pond turtle (Clemmys mamorata pallida)
42. Two-striped garter snake (Thamnophis hammondii)
Birds I
43. Least Bell’s vireo (Vireo bellii pusillus) (endangered
44. Southwestern willow flycatcher (Empidonax trailli
45. Bell’s sage sparrow (Amphispiza belli belli)
46. Burrowing owl (Speotyto cunicularia)
47. California horned lark (Eremophila alpestris actia)
48. Coastal California gnatcatcher (Polioptila californica
49. Cooper’s hawk (Accipiter cooperi)
50. Loggerhead shrike (Lanius ludovicianus)
51. Northern harrier (Circus cyaneus)
52.
ext imus ) (endangered)
calif ornica)
San Diego cactus wren (Campylorhynchus brunneicapillus couesi)
Fieldstone/Carlsbad HCP/OMSP
Implementation Agreement ’ Exhibit 3.
x-
53.
54. Tricolored blackbird (Agelaius tricolor)
55. Yellow-breasted chat (Icteria virens)
56. Yellow warbler (Dendroica petechia brewsteri)
57. California mastiff bat (Eumops perotis californicus)
58.
59.
60.
Southern California rufous-crowned sparrow (Airnophila
ruficeps canescens)
Dulzura California pocket mouse (Chaetodipus californicus fernoralis) Northwestern San Diego pocket mouse (Chaetodipus falla
fallax)
San Diego black-tailed jackrabbit (Lepus californicus
bennet t i i >
San Diego desert woodrat (Neotoma lepida intermedia) Southern grasshopper mouse (Onychomys torridus ramona)
towns endii )
61. 62. 63. Townsend’s western big-eared bat (Plecotus townsendii
I
Fieldstone/Carlsbad HCP/OMSP
Implementation Agreement ’- Exhibit 3.
EXHIBIT 4
TO THE IMPLEMENTATION AGRE- REGARDING
TEE CITY OF CARLSBAD/FIELDSTONE/LA COSTA ASSOCIATES
HABITAT CONSERVATION PLAN/ON-GOING MULTI-SPECIES PLAN
Findinss and Determinations
FINDINGS AND DETERMINATIONS.
have the same meaning as set forth in the Agreement.
The terms used in this Exhibi
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 17.22(b) (2) and Section 17.32(b) (2). More particularly, FWS has found and determined that, with respec to the HCP/OMSP as implemented by this Agreement:
connection with the Plan Activities will be incidental to ai otherwise lawful activity;
the impacts of such taking of the Species of
Concern will be, to the maximum extent practicable, minimize
and mitigated;
adequate funding for the implementation of the HCP/OMSP wil: be provided through this Agr'eement;
adequate procedures to deal with Unforeseen Circumstances a:
provided through this Agreement;
1. the taking of the Species of Concern in
2.
3. Fieldstone and the City have ensured that
4. Fieldstone and the City have ensured that
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 ii and implemented by this Agreement;
Fieldstone/Carlsbad HCP/OMSP
Implementation Agreement ' Exhibit 4. 4
7. FWS has received such other assuranceg 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 PlI
Area habitat and the degree to which such impacts affect thi
Species of Concern and the habitat within the Plan Area, th
City, the subregion, and the region, and has considered the assurances provided to Fieldstone and the City under this
Agreement and has determined that the foregoing findings an
determinations are in accordance with ESA.
B. FINDINGS AND DETERMINATIONS BY FWS UNDER THE MBTA
FWS has considered the anticipated nature and geograph scope of the Plan Activities, including the impacts of the Plan Activities on birds and species covered by the MBTA, a
has considered the assurances provided to Fieldstone and th City under this Agreement and has determined that, based up the measures contained in the HCP/OMSP as implemented by th Agreement, MBTA Permits allowing Take of the birds covered: the MBTA in connection with the Plan Activities issued concurrently herewith and thereafter upon appropriatj
application, to the Permittees.
shall be
C. FINDINGS AND DETERMINATIONS BY DFG
DFG has found and determined that the HCP/OMSP as implemented by this Agreement meets the requirements of CES, including, without limitation, Sections 2081 and the NCCP
Act. More particularly, DFG'has found and determined that
with respect to the HCP/OMSP as implemented by this Agreement:
Fieldstone/CarlsSad HCP/OMSP
Exhibit 4.
Implementation Agreement ' 4
FINDINGS 1-8 ARE DRAWN FROM DFG GUIDELINES FOR NO JEOPARDY
DETERMINATIONS. DFG SHOULD CONSIDER WHETHER TO MAKE THE
FINDINGS WITH RESPECT TO THIS 2081. DFG TYPICALLY BSAKES T
FINDINGS FOR 2090 CONSULTATIONS AND COULD HAKE THEM UNDER
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 bc
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 any Species of Concern currently listed as ffendangeredff or If threatened" under CESA.
will not significantly adversely interfere with the reproductive or other behavior of the Species of Concern.
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
7. Take in conn6ction with the Plan Activities
8. Take in connection with the Plan Activities
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.
Fieldstone/Carlsbad HCP/OMS? Implementation Aareement
Exhibit 4. 4
FINDINGS 11-13 ARE DERIVED DIRECTLY FROM SECTION 1 OF A.B.
2172 (UNCODIFIED) AND CAL. FISH AND GAME CODE SECTION 2805
WHICH ARE THE PROVISIONS OF THE NCCP ACT THAT ESTABLISH TH
PURPOSES OF NCCP PLANS
11. The HCP/OMSP as implemented by this Agreemeni
will, to the maximum extent feasible, avoid, minimize and
compensate for impacts of the Plan Activities on Species of Concern and Plan Area habitat.
The HCP/OMSP as implemented by this Agreemeni
will sustain and restore the habitat within the Plan Area tc the level necessary to maintain, in conjunction with the HMI
MHCP and the NCCP Program, the continued viability of those
biological communities impacted by the Plan Activities.
The HCP/OMSP, as independent initial componez
of the HMP, and together with the HMP, as a component of thc
MHCP, provides for area-wide protection and perpetuation of natural wildlife diversity, while allowing compatible and appropriate development growth. Therefore, the HCPIOMSP 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. 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 appropriatt
mitigation for impacts on fish and wildlife, and promote tht conservation of broad based natural communities and species diversity.
The HCP/OMSP as implemented by this Agreemeni
ensures that the impacts of the Plan Activities on Species ( Concern and Plan Area habitat will be insignificant or will be minimized and mitigated to a level of insignificance as
required by CEQA.
12.
13.
In this context, the
I
14.
(a) 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
Fieldstone/Carlsbad HCP/OMSP
Implementation Agreement = Exhibit 4. 4
D.
The City has balanced the environmental, health, safet!
and socioeconomic attributes of the Project and has considered all identifiable alternatives to and minimizatio~
and Mitigation measures for the Project, and has found and
determined that:
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 Regulations;
The HCP/OMSP as implemented by this Agreemeni
ensures-that the impacts of the Plan Activities on Species I
Concern and Plan Area habitat will be insignificant or will be minimized and mitigated to a level of insignificance as required by CEQA;
The HCP/OMSP as implemented by this Agreemen' provides that an adequate management reporting and monitorii
program for the HCP/OMSP Conservation and Management measurc will be implemented as required by CEQA;
significant benefit to goals and purposes of the HMP.
FINDINGS AND DETERMINATIONS BY THE! CITY
1.
2.
3.
4. The implementation of the HCP/OMSP provides
I
Fields t one/Carl sbad HCP/OMS P
Implementation Agreement a
Exhibit 4. 4
RECORDING REQUESTED BY:
WEN RECORDED RE’I” TO:
Craig Manson, Esq. General Counsel
California Department of Fish and Game
1416 Ninth Street Sacramento, California 95814
NO DOCUMENTmY TRANSFER TA
California Revenue & Taxat
Code § 11922 Presented for Acceptance b: California Department of F and Game
This space for Recorder’s Use Only
RECITALS
WHEREAS, Grantor is the owner in fee, subject to
matters of record, of approximately - acres of land locatc
in the City of Carlsbad, County of San Diego, State of
attached hereto and incorporated herein by this reference
("Conserved Habitat Lands") and
Conservation Plan/Onsoins Multi-SDecies Plan for ProDerties in the South East Ouadrant of the Citv of Carlsbad and Addenda dated , and the related Implementation
Agreement, among Fieldstone/La Costa Associates Limited
Partnership, the City of Carlsbad, the United States Fish a Wildlife Service and Grantee dated June
Implementation Agreement (llImplementation Agreement"), the
Grantor desires to transfer and convey to Grantee and Grant desires to accept the conservation easement described hereinbelow ( "Conservation Easement II 1 , on and subject to th terms and conditions set forth below; and,
WHEREAS, Grantee is an agency formed under the la of the State of California with jurisdiction over the conservation, protection, and management of fish, wildlife,
native plants, and habitat necessary for biologically
sustainable populations of those species Game Code Section 1802) and is authorized to hold
conservation easements for these purposes and Game Code Section 2052); and
WHEREAS, Grantor desires to assure Grantee that
Grantor will hold the Conserved Habitat Lands conveyed here
for the conservation of the,Species of Concern, as that ter
is defined in the Implementation Agreement in accordance wi
and subject to the terms and conditions of this Deed;
facts recited above, the mutual covenants, terms, condition and restrictions contained herein, and pursuant to the laws
816, inclusive, Grantor hereby grants, assigns, transfers a conveys to Grantee, and Grantee hereby accepts, a conservation easement ("Conservation Easement") , as defined in Paragraph 2. below, in perpetuity in arid over the
Conserved Habitat Lands, reservinq to Grantor and exceDting therefrom, all rights, title and interest in and with respe to the Conserved Habitat Lands of every kind and nature tha are not expressly included in the Conservation Easement.
1. Pumose. The purpose of this Conservation EasemE is to assure Grantee that, except as provided in Paragraph
California , more particularly described in Exhibit A
WHEREAS, pursuant to that certain Habitat
, 1995,
(California Fish a;
(California Fish
NOW, THEREFORE, for and in consideration of the
of California and California Civil Code Sections 815 throug
Fieldstone/Carlsbad HCP/OMSP
Implementation Agreement
Exhibit 5.
hereinbelow, the Conserved Habitat Lands shall be held and
used only for conservation of the Species of Concern and
their habitat, including but not limited to compatible
educational uses, subject to the provisions of the
Implementation Agreement.
2, Conservation Easement. The Conservation Easement
includes the prohibitions and limitations on the use of the Conserved Habitat Lands set forth in Paragraph 2.1. below a] the rights set forth in Paragraph 2.2. below, together with
the other rights and interests provided to Grantee herein.
Paragraph 3, without the written approval of Grantee and
USFWS, the Conserved Habitat Lands shall not be used for a? purpose or use other than the conservation of the Species o Concern and their habitat and compatible educational
purposes -
2.1. Prohibited Uses. Except as provided in
2.2. Rishts of Grantee. As an incident of the
Conservation Easement, the Grantee shall have the right to:
2.2.1.
from being used for uses or purposes in violation of Paragraph 2.1. above;
2.2.2.
to enforce at the sole cost of Grantor and pursuant to the terms and conditions of this Deed the restoration of such areas or features of the Conserved Habitat Lands as may be
damaged by such activities; and
Prevent the Conserved Habitat Lands
Enter upon the Conserved Habitat Lanl
2.2 I 3 Enter upon the Conserved Habitat Lanl
at reasonale times to monitlor compliance with Paragraph 2.
above and for scientific study purposes; provided, however, that such entry shall be upon the prior reasonable notice tl Grantor or its successor.
3. Reservations and ExceDtions. Notwithstanding any
other provisions of this Deed, Grantor has reserved and the is excepted from the grant, transfer, assignment and conveyance of the Conservation Easement hereunder the right to engage in and to allow, permit or invite others to engag in all uses of the Conserved Habitat Lands that are not
expressly prohibited herein and are not inconsistent with t
purpose of this Conservation Easement.
other remedies available to Grantee in law or in equity, Grantor intends that the remedies set forth in this Section shall be available to Grantee and to the USFWS, as an expressly identified third party beneficiary of this Deed.
4. Grantee’s Remedies. In addition to any and all
Fieldstone/Carlsbad HCP/OMSP
Implementation Agreement
Exhibit 5. I
Grantee determines that the Grantor or its successor has taken or threatens to take action that is in violation of tl- terms of this Conservation Easement, Grantee shall give the then record fee title owners of the Conserved Habitat Lands written notice of such actual or threatened violation and
shall demand in writing that said violation be cured or prevented. In the event that said violation is not cured within thirty (30) days from the date of said written notice
os, in the event that said cure would require more than thirty (30) days to complete and action is not commenced promptly and pursued expeditiously to effect said cure,
Grantee may take any such action and seek any remedies available at law or equity to enforce the provisions of this Conservation Easement, including, but not limited to, the
seeking of money damages, temporary or permanent injunctions
or other equitable relief (including, but not limited to, tl restoration of any condition that existed within the Conserved Habitat Lands prior to said violation).
required to provide Grantor with written notice of an actua:
or threatened violation or demand the cure thereof if Grantt determines that provision of such written notice and demand of cure will result in significant and unacceptable delay 0:
commencement of a cure to such actual or threatened violation. In such cases, Grantee may proceed in any actio] at law or in equity as provided above without delay and without giving said written notice and demand of cure.
Grantor acknowledges that Grantee’s remedies at law for a
violation of this Conservation Easement would be inadequate
and that Grantee would be entitled to injunctive relief, bo1
prohibitive and affirmative, including specific performance
of the terms of this Conservation Easement, without the
necessity of proving either ‘actual damages or the inadequac: of otherwise available legal remedies. Grantee’s remedies
under this Conservation Easement shall be cumulative and in
addition to all remedies now or hereafter existing at law 0: in equity, including, but not limited to, the remedies set forth in California Civil Code Sections 815 through 816, inclusive.
Notwithstanding the foregoing, Grantee shall not be
5. Costs of Enforcement. Any costs incurred by eith
party in enforcing the terms of this Conservation Easement
against the other, including, without limitation, costs of suit and reasonable attorney’s fees, and any costs of
restoration of the Conserved Habitat necessitated by a
violation of the terms of this Conservation Easement shall borne by the breaching party. If a party prevails in any
action (including appeals therefrom) to enforce the terms o this Conservation Easement, such party’s reasonable costs o
suit including, without limitation, actual attorney’s fees, shall be borne by the other party, except that the USFWS’s
Fieldstone/Carlsbad HCP/OMSP Implementation Agreement Exhibit 5. I
liability for any attorneys fees and costs shall be
determined in accordance with federal law.
6. Grantee's Discretion. Enforcement of the terms oj this Conservation Easement requiring performance by Grantor
shall be at the discretion of Grantee. Grantee to exercise its rights under this Conservation Easement in the event of any breach of this Conservation Easement by Grantor shall not be deemed to be a waiver by
Grantee of such rights or rights under this Conservation Easement. No delay or omission by Grantee in the exercise ( any right or remedy upon breach by Grantor shall impair suci
right or remedy or be construed as a waiver.
7. Acts Bevond Grantor's Control. Nothing contained
in this Deed shall be construed to provide a right to Grant1
to bring any action against Grantor for any injury to or
change in the Conserved Habitat Lands resulting from causes
beyond Grantor's control, including without limitation, the acts of third parties, fire, flood, storm, earth movement, (
any other natural disaster, any act or omission of Grantee,
or from any reasonable action taken by Grantor under
emergency conditions to prevent, abate, or mitigate significant injury to the Conserved Habitat Lands resulting from such causes.
8. Access. This Conservation Easement does not convt a general right of access to the public, however, access foi
scientific research and interpretive purposes is conveyed t' Grantee or its designee pursuant to Paragraph 2.2.3. above.
9. Costs and Liabilities. Grantor or its successor
shall retain all responsibilities and shall bear all costs and liabilities of any kind related to the ownership, operation, upkeep and maintenance of the Conserved Habitat Lands, including the following:
all taxes, assessments, fees, and charges of whatever description levied on or assessed against the Conserved Habitat Lands by competent authority (collectively !'taxesir) including any taxes imposed upon, or incurred as a result o this Conservation Easement, and shall furnish Grantee with
satisfactory evidence of payment upon request.
shall hold harmless, indemnify, and defend Grantee and its members, directors , officers , employees , agents, and
contractors and the heirs, personal representatives, successors, and assigns of each of them (collectively "Indemnified Parties") from and against all liabilities,
penalties, costs, losses, damages, expense, causes of actio
Any forbearance by
9.1. Taxes. Grantor shall pay before delinquenc:
9.2. Hold Harmless. Grantor or its successor
Fieldstanejcarlsbad KCPjOMSP Implementation Agreement Exhibit 5. E
claims, demands, or judgments, including without limitation,
reasonable attorney's fees, arising from or in any way
connected with: (1) injury to or the death of any person, c physical damages to any property, resulting from any act,
omission, condition, or other matter occurring on the
Conserved Habitat Lands, unless caused by the acts or
omissions of any of the Indemnified Parties; and (2) the
existence or administration of this Conservation Easement.
9.3. Condemnation. If this Conservation Easement
is taken, in whole or in part, by exercise of the power of
from the condemning authority in accordance with applicable eminent domain, Grantee shall be entitled to compensation
law.
10. Assisnment. This Conservation Easement is transferable, but Grantee shall give Grantor at least thirt]
(30) days prior written notice of the transfer. Grantee ma] assign its rights and obligations under this Conservation Easement only to an organization that is a qualified organization at the time of transfer under Section 170(b) o the United States Internal Revenue Code of 1954, as amended
(or any successor provision then applicable), and the
applicable regulations promulgated thereunder, and is
authorized to acquire and hold conservation easements under
California Civil Code Section 815, et m. Grantee shall nc assign its rights and obligations under this Conservation
Easement without prior written consent of the Grantor and USFWS, which consent shall not be unreasonably withheld. A,
a condition of such transfer, Grantee shall require that thl Conservation Easement be used only for the purposes describc in Paragraph 1. above.
description of the terms of this Conservation Easement in a deed or other legal instrument by which it divests itself o any interest in all or a portion of the Conserved Habitat Lands, including, without limitation, a leasehold interest. Grantor shall give written notice to Grantee of the transfe of any interest at least fifteen (15) days prior to the dat
of such transfer. The failure of Grantor to perform any ac
required by this Paragraph 11 shall not impair the validity
of this Conservation Easement or limit its enforceability i any way.
12. EstoDDel Certificates. Upon request by Grantor, Grantee shall within fifteen (15) days execute and deliver
Grantor any document, including estoppel certificates, that certify Grantor's compliance with any obligation of Grantor
contained in this Conservation Easement and otherwise evidences the status of this Conservation Easement as may 1=
requested by Grantor.
Fieldstone/Carlsbad HCP/OMSP
Implementation Agreement Exhibit 5.
11. Subsecnrent Transfe'rs. Grantor shall include a
I
13 - Notices. Any notice, demand, request, consent, approval, or communication that either party desires or is required to give to the other shall be in writing and eithei served personally or sent by certified mail with postage
prepaid, return receipt requested, addressed as follows:
To Grantor:
To Grantee:
Regional Manager
Department of Fish and Game
State of California
3330 Golden Shore, Suite 50 Long Beach, CA 90802
with the following note on the envelope:
Official Notice Resardins Fieldstone/Carlsbad Conservatil Easement Deed
TO USFWS:
Regional Director United States Fish and Wildlife Service Portland Eastside Federal Complex
911 N.E. 11th Avenue Portland, Oregon 97232
with the following note on the envelope:
Official Notice Resardins Fieldstone/Carlsbad Conservatic
Easement Deed
or to such other address as either party from time to time
shall designate by written notice to the other.
be deemed effective in the case of personal delivery, upon delivery, and in the case of certified mail, five (5) days after deposit in the United States mail.
promptly record this instrument in the official records of San Diego County, California and may re-record it at any ti
as may be required to preserve its rights in this Conservation Easement.
Notice sha
14. Recordation. Upon execution, Grantee shall
Fieldstone/Carlsbad HCP/OMSP Implementation Agreement Exhibit 5. I:
15. General Provisions.
15.1. Controllins Law. The interpretation an( performance of this Deed shall be governed by the laws of tl State of California.
15.2. Liberal Construction. Any general rule of construction to the contrary notwithstanding, this Deed
shall be liberally construed to effect the purpose of the Conservation Easement and the policy and purpose of
California Civil Code Sections 815 through 816, inclusive. If any provision in this Deed is found to be ambiguous, an interpretation consistent with the purposes of the Conservation Easement that would render the provision valid
invalid.
shall be favored over any interpretation that would render
15.3. Severability. If any provision of this Deed, or the application thereof to any person or circumstance, is found to be invalid, the remainder of the provisions of this Deed, or the application of such provisit to persons or circumstances other than those as to which it
is found to be invalid, as the case may be, shall not be
affected thereby.
15.4. Entire Asreement. This instrument sets forth the entire agreement of the parties with respect to this Deed, and supersedes all prior discussions, negotiations, understandings, or agreements relating to thi
Deed, all of which are merged herein.
15.5. Modifications. Any alterations, change
or modifications of or to this Deed, to be effective, shall require the approval of USFVS, shall be made in writing and shall be executed by all parties.
15.6. No Forfeiture. Nothing contained herei will result in a forfeiture or reversion of Grantor’s title
in any respect.
15.7. Successors. The covenants, terms, conditions, and restrictions of this Deed shall be binding upon, and inure to the benefit of, the parties hereto and their respective personal representatives, heirs, successor and assigns and shall continue as a servitude running in perpetuity with the Conserved Habitat. The covenants hereunder benefiting Grantee shall also benefit the United
States Fish and Wildlife Service. Upon conveyance of its right, title and interest in and to the Conserved Habitat
Lands, the Grantor shall have no further obligation hereund except with respect to breaches thereon that have occurred prior to said conveyance.
Fieldstone/Carlsbad HCP/OMSP Implementation Agreement
Exhibit 5. I
15.8. Captions. The captions in this Deed ha been inserted solely for reference and are not a part of th Deed and shall have no effect upon its construction or interpretation.
this Deed in two counterparts, which shall, in the aggregat
be signed by both parties; each counterpart shall be deemed an original instrument as against any party who has signed
it. In the event of any disparity between the counterparts produced, the recorded counterpart shall be controlling.
15.9. Countemarts. The parties may execute
IN WITNESS WHEREOF Grantor and Grantee have
entered into this Deed the day and year first above written
GRANTOR :
By :
GRANTEE :
DEPARTMENT OF FISH AND GAME
SACRAMENTO, CALIFORNIA
By :
I
APPROVED AS TO FORM:
Craig Manson, Legal Advisor California Department of Fish and Game
Fieldstone/Carlsbad HCP/OMSP
Implementation Agreement Exhibit 5. I
EXHIBIT A
Description of Conserved Ilabitat Lands
I
-a -
Fieldstone/Carlsbad HCP/OMSP
Implementation Agreement
Exhibit 5. 5.
EXHIBIT 6
TO THE IMPLEMENTATION AGREEMENT REGARDING THE CITY OF CARLSBAD/FIELDSTONE/LA COSTA ASSOCIATES
HABITAT CONSERVATION PLAN/ON-GOING MULTI-SPECIES PLAN
Form of Risht of First Refusal Asreement
THIS AGREEMENT is made and entered into as of June 7, 1995,
by and among Fieldstone/La Costa Associates, a California
Limited Partnership ('Fieldstone") , the Bank of America, Illinois ("Lender") ; and, the City of Carlsbad, a municipal
recitals of fact, the parties hereby agree as follows.
coypora'cion ("City") , whereby, based on the following \
Reci tal8
This Agreement is based on the following facts:
A. This Agreement is entered into pursuant to Section VI.B.3. of that certain agreement among the Fieldstone, City and others entitled "Implementation Aqreement Recrardins The Citv of Carlsbad/Fieldstone/Lz Costa Associates Habitat Conservation Plan/On-soinq
Multi-SDecies Plan" ("IA") , whereby Fieldstone has
agreed to provide, and cause Lender to provide, City with a right of first refusal for a certain period of
time with respect to possible conveyances by Fieldstox or Lender of the Rancheyos-Southeast I1 Subarea, as described in the IA and shown on the map included as Exhibit A hereto, exclusive of Conserved Habitat, the Rancho Santa Fe Road Right-of-way, and the Mag Parcel, as those terms are defined in the IA ("Subject Parcels"), all as provided for, and on and subject to the terms and conditions set forth, hereinbelow; and,
B. Fieldstone owns fee title and Lender holds z first lien with respect to the Subject Parcels and arc willing to perform as provided in this Agreement, subject to the terms and conditions set forth
hereinbelow.
Fieldstone/Carlsbad HCP/OMSP Implementation Agreement
Exhibit 6. 6
Aqreemen t
1. Risht of First Refusal.
Prior to the sale and conveyance of any of the Subject
Parcels, or any portions thereof, within five (5) years fro the date of this Agreement (hereinafter referred to as the
“Term”) , except for a conveyance to Lender, Fieldstone or Lender (provided that it then holds fee title thereto) shal
in accordance with the provisions of this Section 1.
offer to sell said lands to be offered for sale to the City
a. Written Notice of Possible Offer to Sell.
From time to time during the Term, Fieldstone or
Lender (“Offeror”) may notify City in writing (“Notice’,) that it may offer one or more of the Subject Parcels, or
portions thereof as to which it then owns fee title, or a
portion thereof (hereinafter the lands included within an
Offer are referred to as “Offered Lands,’), for sale and
conveyance to City. The Notice shall set forth: (i) a Purchase Price for said the Offered Lands; and, (ii) an offer (“Offer”) to sell the Offered Lands for cash at the Purchase Price, with payment thereof and conveyance of tit1
to the City within six (6) months of the Effective Date of
the Notice in accordance with Section 1.c. below. The Offe shall terminate unless it is accepted in strict accordance with Paragraph 1.b. below.
b. AcceDtance of Offer.
The City may accept an Offer only by delivery of written notice of its acceptance thereof to the Offeror within sixty (60) days of the Effective Date of the Notice
with respect thereto, together with: (i) evidence
satisfactory to Offeror that City has the financial capability to pay the Purchase Price in a timely manner; and, (ii) assurances to the Offeror in a form reasonably
satisfactory to Offeror that: (A) the burden and charges
with respect to the construction and operation of Rancho
Santa Fe Road or the City’s Growth Management Plan and related ordinances, policies and regulations that would ha\
been allocated, charged to or borne by the owners of the
Offered Lands but for the use of the Offered Lands as open space, will not be allocated or charged to other lands within the Plan Area owned by Fieldstone or Lender at the time of the Closing; or, (B) that Fieldstone and Lender shall be fully compensated, in addition to the Purchase Price, for the reasonably anticipated increase in charges and burdens to other-lands within the Plan Area owned by Fieldstone or Lender,at the time of the Closing resulting
Fieldstone/Carlsbad HCP/OMSP
Implementation Agreement
Exhibit 6. 6
from the non-development of the Offered Lands. that the City accepts an Offer in accordance with this provision, within six (6) months of the Effective Date of the Notice, the Offeror and City shall simultaneously pay the Purchase Price in cash and convey the Lands through an escrow (the “Closing”), all in accordance with the
provisions of Paragraph 1.c. hereinbelow.
In the event
c. Closins of Purchase.
In the event City accepts an Offer in accordance with Paragraph 1.b. above, within ten (10) days: (i) City
and the Offeror shall execute and deliver to escrow holder
escrow instructions and other documents necessary to
evidence the agreement of the parties, establish and escrou
terms and conditions; and, (ii) City shall deposit into sai
escrow cash in the amount of five percent (5%) of the
Purchase price (to be held and applied by escrow holder to
the Purchase Price at the Closing):
(1)
and‘ to effect the Closing in accordance with the following
The Purchase Price and conveyance of
title shall be effected simultaneously and prior to the end of said six (6) month period through a
escrow established with a title company selected
by Offeror.
(2) Conveyance of title to the Offered Lana
shall be by grant deed, conveying fee title
thereto to the City or its nominee free of all rights, interests, easements and encumbrances tha would impair the use of the Offered Lands for wildlife habitat purposes; except that, Offeror
may reserve and ekcept from the conveyance of the
Offered Lands all easements, rights-of-way and other rights and interests which are reasonably necessary in connection with the development and use of other lands within the “Plan AreaN, as tha term is defined in the IA.
(3) Real estate taxes, charges and assessments shall be prorated to the Closing.
(4) shall be shared and paid by the Offeror and City
as follows:
All costs and expenses of the conveyanc
(a) Offeror shall pay the costs of a California Land Title Association owner’s policy for City or its
the escrow; and,
nominee and one-half of the cost c
Fieldstone/Carlsbad HCP/OMS?
Implementation Agreement Exhibit 6. 6.
(b) City shall pay one-half of the cos
of the escrow.
All other costs and expenses of the Closing shall be shared and paid by Offeror and
the City in accordance with the customs in the Sa
Diego County.
2. No Further Restriction.
In the event that Offeror makes an Offer to City with respect to any Offered Lands in accordance with Paragraph
l.a., hereinabove, and the City does not, for any reason,
accept the Offer in accordance with Paragraph l.b., hereinabove, Fieldstone and Lender may thereafter-offer to
sell and/or sell to another the Offered Lands at a Purchase Price equal to or greater than the Purchase Price set forth in the Offer. Upon any such sale, Fieldstone, Lender and
their successors and assigns shall have no further
obligation or duty under this Agreement with respect to the
Offered Lands, including, but not limited to, the obligatic to further offer to sell the Offered Lands to City.
In the event that City does not accept an Offer within
written request of the Fieldstone or Lender, the City shall execute and deliver to the requesting party all documents and instruments reasonably requested acknowledging that - there is no further obligation or duty on the part of Fieldstone, Lender or their successors and assigns under this Agreement with respect to the Offered Lands in accordance with the foregoing.
the time specified in Paragraph 1.b. hereinabove, upon the
I
3. Miscellaneous Provisions.
a. Notices.
Any notice, demand, request, consent, approval, o
communication that either party desires or is required to give to the other shall be in writing and either served personally or sent by certified mail with postage prepaid, return receipt requested, addressed as follows:
To Fieldstone:
The FieZdstone/La Costa Associates
4565 Morehouse Drive, Suite 250 San Diego, CA 92121 Attn: Mr. John Barone
Limited Partnership
Fieldstone/Carlsbad HCP/OMSP Implementation Agreement
Exhibit 6. 6-
copy to:
Lindell L. Marsh, Esq. Siemon, Larsen & Marsh
19800 MacArthur Blvd., Suite 350 Imine, CA 92715
To City:
The City of Carlsbad
2075 Las Palmas Drive Carlsbad, CA 92009
To Lender:
Bank of America, Illinois
or such other address as either party from time to time shall designate by written notice to the other. Notice
shall be deemed effective (the "Effective Date") in the caE of personal delivery, upon delivery, and in the case of certified mail, five (5) days after deposit in the United
States mail.
b. Term.
This Agreement shall terminate and be of no further force and effect upon and after five (5) years fron
the date hereof except with respect to the right of a party to damages for any default ih the performance of this Agreement occurring prior to the end of said five period.
(5) year
c. Controllins Law.
The interpretation and performance of this Deed shall be governed by the laws of the State of California.
d. Modifications and Amendments.
Any alterations, changes or modifications of or t this Agreement, to be effective, shall be made in writing
and shall be executed by all parties.
e. Successors and Assisns.
This agreement shall be binding upon and inure tc
the benefit of the parties hereto and their successors and assigns.
FieldstonejCarlsbad HCPJOMSP Implementation Agreement Exhibit 5. 6
f * Countemarts.
The parties may execute this Agreement in
)
counterparts, which shall, in the aggregate, be signed by
all parties; each counterpart shall be deemed an original
instrument as against any party who has signed it.
IN WITNESS WHEREOF, the parties have executed thi
Agreement as of the day first above written.
"FIELDSTONE''
The Fieldstone/La Costa Associates
Limited Partnership, A California Limited
By: The Fieldstone Company, a
. Partnership
California corporation General Partner
By :
John Barone, Senior
Project Manager
"LENDER"
Bank of America, Illinois
By : I
I
- "CITY"
The City of Carlsbad, California
By :
-1
Fieldstone/Carlsbad HCP/OMSP
Implementation Agreement Exhibit 6. 6