HomeMy WebLinkAbout3190; Racho Sante Fe Road Fieldstone/La Costa; Racho Sante Fe Road Fieldstone/La Costa; 1995-06-07tm IMPLEMENTATION AGREEBfENT REGARDING
^ THE CITY OF CARLSBAD/FIELDSTONE/LA COSTA ASSOCIATES
^ HABITAT CONSERVATION PLAN/ON-GOING MDLTI-SPECIES PLAN
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m BY AND BETWEEN:
* UNITED STATES FISH AND WILDLIFE SERVICE,
*• THE CALIFORNIA DEPARIWENT OF FISH AND GAME,
In
THE CITY OF CARLSBAD
^ and
^ FIELDSTONE/LA COSTA ASSOCIATES LIMITED PARTNERSHIP
June 7, 1995
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TABLE OF CONTENTS
Page
I. DEFINITIONS AND EXHIBITS 2
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A. DEFINITIONS 2
• 1. "Asrreement" 2
m 2. "Budget" 2
3. "City" 2
iH 4. "City Regulations" 2
^ ^ 5. "Conservation Entity" 3
6. "Conserved Habitat" 3
m 7. "Effective Date" 3
^ 8. "fieldstone" 3
9. "Future Ranciao Santa Fe Road" 4
^ 10. "Habitat Conservation Plan/On-
Going Multi-Species Plan" or
"HCP/CMSP" 4
^ 11. "HMP" 4
12. "HMP Conservancy" 5
13. "HMP Program" 5
^ 14. '.'Homeowners Association" 5
15. "Jjnpact Area" or "Impact Areas" 5
16. "MAG Parcel" 5
17. "Map" 6
*• 18. "Minor Adjustment" 6
i" 19. "WortJives t Conserved HaJbitat
Parcels" 6
20. "Northwest Subarea" 7
M 21. "Offsite Conseirvation Lands" 7
22. "Offsite Mitigation Parcel" 7
23. "Pexroits and Management
^ Author i za ti ons" 7
24. "Plan Area" 7
25. "Plan Activities" 8
^ 26, "Project" . . . 8
27. "Rancheros-5outi3east JJ Consei-ved
M Habitat Parcel" 9
^ 28. "Rancheros-Southeast JJ Subarea" 9
29. "Species of Concern" 9
I. 30. "Special Rule" 9
31. "Subarea" or "Subareas" 9
32. "Term" 10
^ 33. "Wildlife Conservation
Regulations" 10
^ B. BXHIPXTg 10
Sjtflibit X; Glossary
Exhibit 2: The Map
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Exhibit 3: List of Species of Concern
Exhibit 4: Findings and Determinations
Exhibit 5; Form of Conservation Easement
Exhibit 6: Form of Right of First Refusal
Exhibit 7: Section 10 fa) Permit
E3tf;ibit 9: Sections 2081/2835
Management Authorization
II. RECITALS 11
A. PLAN AREA OWNERSHIP AND DEVELOPMENT OF THE
PROJECT 11
B. SPECIES ADDRESSED BY THIS AGREEMENT AND THEIR
REGULATION 12
C. THE HABITAT CONSERVATION PLAN 13
D. AUTHORITY OF FWS 13
E. AUTHORITY OF DFG 14
F. RELATIONSHIP TO THE NCCP PROGRAM AND THE SPECIAL
RULE 15
G. AUTHORITY OF THE CITY 18
H. LEGAL REQUIREMENTS AND ASSURANCES 19
1. HCP/OMSP Consistency with Wildlife
Conservation Regulations 19
2. Reliance on Undertakings 20
III. TERM OF THB ^^FCTtmT 21
A. STATED TERM 21
B, PERMANENCE OF CONSERVED HABITAT AND OFFSITE
MITIGATION PARCEL 21
IV. AUTHORIZATION TO TAKE 22
A. ISSUANCE OF SECTION 10(a) PERMIT AND SECTIONS
2081/2835 MANAGEMENT AUTHORIZATION 22
1. Section 10(a) Permit 22
2. Sections 2081/2835 Management
Authorization 22
B. FURTHER PERMITS WITH RESPECT TO UNLISTED SPECIES
OF CONCERN 23
C. LISTING OF OTHER SPECIES 24
D. ISSUANCE OF MBTA PERMITS 25
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E. NOTICES OF PROPOSED RULES AFFECTING ANY SPECIES
OF CONCERN 25
F. CITY PROJECT APPROVAL AND ASSURANCES . . 26
1. No Approval of Project Beyond Wildlife . . 26
2. General Plan Amendment 26
3. Environmental Review of Project 27
G. UTILITY LINES, OTHER FACILITIES AND ACTIVITIES
m IN CONSERVED HABITAT 28
V. OBLIGATIONS OF FIELDSTONE AND FDHDING 29
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A. CONVEYANCE OF CONSERVED HABITAT AND OFFSITE
« MITIGATION PARCEL 30
1. Conveyance of On-site Conserved Habitat . . 30
2. Conveyance of Offsite Mitigation Parcel ... 33
pi B. MAINTENANCE OF CONSERVED HABITAT BY FIELDSTONE
PENDING CONVEYANCE 33
C. PROTECTION OF ON-SITE CONSERVED HABITAT IN
CONNECTION WITH DEVELOPMENT ACTIVITIES 34
D. FUNDING .36
1, By Fieldstone 36
^ a. Maintenance of Conserved Habitat .... 36
b. City HMP Program and Research 37
2. Funding of Long-term Maintenance of
^ Conserved Habitat 37
a. Budget for Long-term Maintenance and
Limit of Fieldstone Obligation 37
b. Piablic Efforts to Provide Long Term
** Funding 40
c. Funding through Homeowners Association
and Endowment 41
*" E. CONDITION PRECEDENT TO PERFORMANCE 41 «•
VI. CITY HMP; ADDITIONAL CONSERVATION,- LONG-TERM
«* MANAGEMENT OF CONSERVED HABITAT Awn PRT.^TED MEASURES . 42
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A. CITY HMP 42
m B. ADDITIONAL CONSERVATION TO BE PROVIDED
^ UNDER HMP 42
1. Acquisition of Lands within the Corridor
m between Carlsbad and the San Dieguito
^ Riverpark Planning Area 42
2. Further Acquisition Discussions 46
M 3. Right of First Refusal 47
C. LONG TERM MAINTENANCE OF CONSERVED HABITAT .... 47
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1. Creation of the HMP Conservancy 48
^. 2. Annual Report, Program and Budget 48
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3. Cooperation of Wildlife Agencies and the
City 49
4. Coordination of Conservation and Management
Measures with Other Conservation Programs . 50
5. Enhancement of San Marcos Creek Habitat . . 51
6. Relocation of SDG&E Easements 51
VII. T3NF0RESEEN CIRCUMSTANCES 52
A. IN GENERAL 52
B. PROCEDURE FOR DETERMINING OCCTURRENCE OF
UNFORESEEN CIRCUMSTANCES 52
1. Notice to Parties 53
2. Submission of Information by Other Parties 53
3. Findings 53
C. RESPONSE TO OCCURRENCE OF UNFORESEEN
CIRCUMSTANCES 54
VIII. AMENDMENTS. MINOR ADJUSTMENTS AND EMERGENCY ACTIONS . . 55
A. FURTHER ACTIONS AND AMENDMENTS 55
B. MINOR ADJUSTMENTS 55
C. ACTIONS TO PROTECT HUMAN HEALTH AND SAFETY .... 56
IX. MAG PARCEL 56
X. TERMINATION BY FIELDSTONE 58
XI . ENFORCEMENT AND REMEDIES 60
A. IN GENERAL 60
B. REVOCATION AND TERMINATION 61
C. NOTICE AND OPPORTUNITY TO CURE 61
D. SEVERABILITY 62
1. Fieldstone as to Project and Plan
Activities and City as to Rancho Santa Fe
Road 62
2. Conveyance of Parcels by Fieldstone 63
E. UNIQUE WILDLIFE RESOURCES; IRREPARABLE INJURY . . 64
F. NO LIMITATION IN AUTHORITY 64
XII. NO FURTHER MITIGATION 64
A. NO FURTHER MITIGATION 64
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XIII. MISCELLANEOUS PROVISIONS 65 mt
A. INCORPORATION OF THE HCP/OMSP 65
B. ENTIRE AGREEMENT 66
C. ASSIGNMENT AND DELEGATION 66
D. INTERPRETATION OF AMBIGUITIES 70
E. CAPTIONS 70
F. INDEPENDENT INVESTIGATION 70
G. TIMING 71
H. NO PARTNERSHIP 71
I. ELECTED OFFICIALS NOT TO BENEFIT 71
J. BENEFIT OF THE AGREEMENT 72
K. EMINENT DOMAIN 72
L. FORCE MAJEURE 72
M. NOTICES 74
N. ATTORNEYS' FEES 75
0. EFFECTIVE DATE 76
P, DUPLICATE ORIGINALS 76
SIGNATURES 77-78
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IMPLEMENTATION AGREEMENT REGARDING
THE CITY OF CARLSBAD/FIELDSTONE/LA COSTA ASSOCIATES
HABITAT CONSERVATION PLAN/ON-GOING MULTI-SPECIES PLAN
This IMPLEMENTATION AGREEMENT REGARDING THE CITY OF
CARLSBAD/FIELDSTONE/LA COSTA ASSOCIATES HABITAT CONSERVATION PLAN
{"Agreement") is made and entered into as of June 7, 1995 by and
between the City of Carlsbad, Califomia (the "City"), a
municipal corporation, Fieldstone/La Costa Associates Limited
Partnership, a Califomia limited partnership ("Fieldstone"), the
United States Fish and Wildlife Service, an agency of the
Department of Interior of the United States ("FWS"), and the
Califomia Department of Fish and Game ("DFG"), an agency of the
State of California (the City, Fieldstone, FWS and DFG are
referred to collectively herein as the "Parties").
Based on the definitions, recitals of fact, findings and
determinations, the mutual obligations and covenants set forth
herein, and other consideration, the receipt and adequacy of
which are hereby acknowledged, the Parties do hereby agree as
follows.
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tm 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 this
Agreement as Exhibit 1 has the meaning set forth therein when
used in this Agreement,
1. "Agreement" means this document entitled:
"IMPLEMENTATION AGREEMENT REGARDING THE CITY OF
CARLSBAD/FIELDSTONE/LA COSTA ASSOCIATES HABITAT CONSERVATION
PLAN/ON-GOING MULTI-SPECIES PLAN" entered into by and between the
City, Fieldstone, FWS and DFG.
2. "Budget" means the budget entitled "Management
Cost Assumptions for the Habitat Conservation Plan/Ongoing Multi-
Species Plan for Properties on [sic] the Southeast Quadrant of
the City of Carlsbad", described in the Addendum to the HCP/OMSP.
3. "City" means the City of Carlsbad, Califomia, a
municipal corporation.
4. "City Regulations" means all existing and future
City laws, ordinances, rules, regulations, policies, constraints.
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conditions of development approvals, goals, purposes or other
requirements related to the Conservation of Wildlife, including,
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 of
the City of Carlsbad.
5. "Conservafcion Entity" means the HMP Conservancy,
DFG, an agency of the State of Califomia, or a conservation
agency approved by DFG and FWS, which approval shall not be
unreasonably withheld.
6. "Conserved HaJbitat* means the lands owned in fee
title by Fieldstone within the Plan Area consisting collectively
of the Rancheros-Southeast II Conserved Habitat Parcel and the
Northwest Conserved Habitat Parcels, all as generally depicted on
the Map.
7. "Etfmctivm Date" means the date of the issuance
of the Section 10(a) Permit by FWS permitting the incidental Take
of California Gnatcatchers as contemplated by Section IV
hereinbelow.
8. "Fieldstone" means Fieldstone/La Costa Associates
Limited Partnership, a Califomia limited partnership.
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9. "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 to but not
included within Conserved Habitat, that will be realigned to the
proposed "Canyon Alignment" and reconstmcted, in one or more
phases, as a six-lane prime arterial, as described in the
environmental intact report. Clearinghouse Number 90010850,
certified June 2, 1992, including any grading adjacent to the
profile of the proposed road necessary to constmct the road.
10. "Habitat Conservation PI as/On-Gois? Multi-Species
Plan" or "HCP/OMSP" means the "HABITAT CONSERVATION PLAN/ON-GOING
MULTI-SPECIES PLAN FOR PLANT AND WILDLIFE SPECIES OF CONCERN IN
THE SOUTHERN QUADRANT OF THE CITY OF CARLSBAD, CZALIFORNIA, dated
June, 1995", including the Base Plan and the First and Second
Addenda thereto, all of which have been approved by the Parties
in connection with their execution of this Agreement,
11. "HMP" 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 subarea
component of the MHCP. The HMP, which was made publicly
available in draft form on July 2, 1993, addresses, in the
context of the subregional MHCP, the protection and management of
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multiple types of habitat and listed and unlisted species within
the subarea formed by the jurisdictional boundaries of the City.
12. "HMP Conservancy" means an agency created by the
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 Fomm of San Diego County, Fieldstone, FWS and
DFG to develop the HMP.
14. "Homeowners Association" means an incorporated or
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. "Impact Area" or "Impact Areas" mean,
respectively, a portion or portions of the Plan Area, as shown on
the Map, which are excluded from Conserved HcUDitat and will be
developed as part of the Project.
16. "MAG Parcel" means that certain approximately 81
acres of land located within the Impact Areas lying southeast of
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Existing Rancho Santa Fe Road within the Rancheros-Southeast II
Subarea, as shown on the Map.
17. "Map" means the map attached hereto as Exhibit 2.
which generally depicts, among other things, the Plan Area, the
Northwest Subarea, the Rancheros-Southeast II Subarea, the Impact
Areas, the MAG Parcel, the On-site Conserved Habitat, the Future
Rancho Santa Fe Road alignment and the SDG&E easements.
18. "Minor Adjustment" means an adjustment or
modification of the Conservation measures under the HCP/OMSP as
implemented by this Agreement that is expected to result in
adverse impacts to the Species of Concem that are sxabstantially
the same or less than those conten^lated by the HCP/OMSP, which
may include, for exait^le, some modifications in the boundaries of
the Conserved Habitat.
19. "Northwest Conserved Habitat Parcels" means those
portions of Conserved Habitat located within the Northwest
Subarea, consisting of approximately 181.09 acres of land, as
shown on the Map (which includes 40 acres of land required to be
conveyed by Fieldstone as mitigation under a prior agreement with
FWS if the Del Mar Manzanita were to be Listed under the ESA).
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20. "Northwest Subarea" means that portion of the
Plan Area consisting of approximately 662 acres of land, as shown
on the Map.
21. "Offsite Conservation Lands" means lands approved
by FWS and DFG, and located generally within the corridor between
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 Section
VI.B.1.
22. "Offsite Mitigation Parcel' means the lands
required to be conveyed by Fieldstone pursuant to Section V.A.2.,
as provided in Section VI.B.l.a.(2), which lands will comprise a
portion of the Offsite Conservation Lands.
23. "Pennlts and Management Authorizations' means all
permits and MOUs issued or entered into pursuant to or as
included in or contemplated by this Agreement, including, but not
limited to, Section 10(a) Permits, Sections 2081/2835 Management
Authorizations and MBTA Permits.
24. "Plan Area" means the lands covered by the
HCP/OMSP, consisting of the Rancheros-Southeast II Subarea and
the Northwest Subarea as shown on the Map.
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25. "Plan Activities" ("all activities authorized
under the HCP/OMSP") 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 and
phasing determined by the respective actor with respect to each
such activity.
26. "Project" means the development contemplated by
the HCP/OMSP to be located within the Impact Areas and, to the
extent provided under Section IV.G, within Conserved Habitat, for
urban facilities, stmctures and uses, without limitation: (i)
residential, commercial, facilities and infrastmcture
improvements; and, (ii) road and related transportation
facilities. Without limiting the generality of the foregoing,
the Project, includes: grading and landscaping; utilities,
communication lines, facilities, pipelines and rights-of-way, of
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,
stmctures and facilities of every kind and nature.
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27. "Rancheros-Southeast XT Conserved Habitat Parcel"
means that portion of Conserved Habitat that Fieldstone owns in
fee, located within the Rancheros-Southeast II Subarea,
consisting of approximately 521.4 acres of land, as shown on the
Map (including 15 acres of land required to be conveyed by
Fieldstone as mitigation under a prior agreement with FWS).
28. "Rancheros-Southeast XX Subarea" means that
portion of the Plan Area consisting of approximately 1,278.2
acres of land as shown on the Map.
29. "Sections 2002/2835 Management Authorization'
means a permit or permits and/or memorandum of understanding
issued or entered into pursuant to Section 2081 and Section 2835
authorizing the Take of individuals of a species.
30. "Species of Concem" means those species listed
in Exhibit 3.
31. 'Special Rule" means Section 17.41(b) Title 50
of the Code of Federal Regulations with respect to the
Gnatcatcher.
32. "Subarea" or "Subareas" mean, respectively, one
or both of the Northwest Siabarea and the Rancheros-Southeast II
Subarea as depicted on the Map.
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33. "Term" means that period during which, regardless
of the "stated term" set forth in Section III, this Agreement is
in effect.
34. "(Wildlife Conservation Regulations" means all
local, State and federal laws, ordinances, regulations,
guidelines, policies and directives regulating or restricting the
impacts or effects of the Project on Wildlife and its habitat,
including, without limitation: ESA (including, without
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; MBTA
Act, the federal Clean Water Act; Section 1601 and 1603 of the
Califomia Fish and Game Code; the California Native Plant
Protection Act (Califomia Fish and Game Code Section § 1900 et
seq.) 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.
B. EXHIBITS
Attached to this Agreement are the following Exhibits,
which are incorporated herein by this reference:
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Exhibit 1: Glossary
Exhibit 2: The Map
Exhibit 3: List of Species of Concern
gjtnibit 4; Findings and Determinations
gytlibit 5: Form of Conservation Easement
Exhibit Form of Right of First Refusal
Exhibit 7; Section 10 fa) Permit
Exhibit 8; Sections 2081/2835
W^q^qgmgnt A^thori^atip^
II. RECITALS
mt 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 II
Subarea and Northwest Subarea owned by Fieldstone and others
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(with respect to the MAG Parcel), and a portion of the right-of-
way for Future Santa Fe Road owned by the City.
Fieldstone and the City desire to: (i) effect the Project
within the Plan Area in phases determined appropriate by the
respective developer of each portion thereof; and, (ii) minimize
and mitigate the impacts of the Project on the Species of Concern
and their habitats by providing for the Conservation of the
Species of Concern and their habitats, as provided herein, within
the Conserved Habitat.
B. SPECIES ADDRESSED BY THIS AGREEMENT AND THEIR
The Species of Concern are species that use, occupy or are
associated with the Plan Area and include, but are not limited to
species that are: (1) Listed as "threatened" or "endangered"
under ESA or CESA; (2) proposed or candidates for such listing;
(3) of special concem in California; (4) rare or declining
regionally; or (5) of local concem. Certain Species of Concern,
for example, but without limitation, the Gnatcatcher, are
currently Listed under ESA and it is anticipated that one or more
of the other Species of Concern may be proposed to be or may
become Listed under ESA or CESA.
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C. THE HABITAT CONSERVATION PLAN
The HCP/OMSP has been collaboratively developed pursuant to
a three year facilitated focused planning process led by the City
and involving representatives of Fieldstone, the City, DFG, FWS,
conservation organizations and various other individuals,
agencies and organizations in order to fully reconcile concerns
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 pursuant
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 the
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 g£ seq.) and the Fish and
Wildlife Act of 1956 (16 U.S.C. § 742f). In connection with 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 and unlisted species
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over the long term while providing assurances regarding the
limits of any Mitigation required, stating that:
[T]he Secretary [of the Interior] . . . may . . .
approve conservation plans which provide long-term
commitments regarding the conservation of listed as
well as unlisted species and long-term assurances to
the proponent of the conservation plan that the terms
of the plan will be adhered to and that further
mitigation requirements will only be imposed in
*" accordance with the terms of the plan. In the event
Ma that an unlisted species addressed in an approved
conservation plan is subsequently listed pursuant to
the Act, no further mitigation requirements should be
^ irrposed if the conservation plan addressed the
conservation of the species and its habitat as if the
^ species were listed pursuant to the Act.
mm * * *
It is also recognized that circumstances and
^ information may change over time and that the original
plan might need to be revised. To address this
— situation the Committee expects that any plan approved
for a long-term permit will contain a procedure by
*" which the parties will deal with unforeseen
_ circumstances.
[H.R. Rep. No. 97-835, 97th Cong., 2dSess. 30-31 (1982)].
E. AUTHORITY OF DFG
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^ DFG has participated in the preparation of the HCP/OMSP and
Mf entered into this Agreement pursuant to CESA, which provides that
the Department has jurisdiction over the conservation, protection
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and management of fish, wildlife, native plants and habitat
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necessary for biologically sustainsQale populations of those
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species. See, e.g.. California Fish and Game Code §§ 1801, 1802,
M. 2000 and 2052. DFG is charged not to approve projects as
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proposed that would jeopardize the continued existence of any
"endangered" or "threatened" species or that would result in the
destmction or adverse modification of habitat essential to the
continued existence of those species if there are reasonable and
pmdent alternatives available consistent with conserving the
species or its habitat that would prevent jeopardy. California
Fish and Game Code § 2053. However, in the event specific
economic, social or other conditions make infeasible such
alternatives, individual projects may be approved if appropriate
"mitigation" and enhancement measures are provided. California
Fish and Game Code § 2054. Further, DFG may authorize the Take
of Species of Concern Listed under CESA for scientific,
educational or management purposes under: (1) CESA and
Section 2081; and (2) Section 2835.
F. RELATIONSHIP TO THE NCCP PROGRAM AND THE SPECIAL RULE
The State of Califomia enacted the NCCP Act effective
January 1, 1992, for the conservation of natural communities.
Pursuant to the NCCP Act, the state promulgated the NCCP Program,
which is a pilot project under the NCCP Act that provides for the
preparation of NCCPs for coastal sage scmb habitat and the
species that inhabit and use coastal sage scrub habitat,
including the Gnatcatcher. The Califomia Resources Agency, DFG,
and FWS have entered into that certain "MOU REGARDING COASTAL
SAGE SCRUB NATURAL COMMUNITY CONSERVATION PLANNING IN SOUTHERN
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mt CALIFORNIA," executed December 4, 1991, providing for a policy of
coordination and cooperation between FWS and DFG in the
development of plans for the conservation of coastal sage scrub
natural communities.
FWS has adopted the Special Rule, which defines those
conditions under which incidental take of the Gnatcatcher under
the ESA, that is not otherwise excepted under Section 7 or
permitted under Section 10(a), will not be considered a violation
of the ESA. Those conditions are: (1) if the incidental Take
results from activities conducted in accordance with an NCCP for
the protection of CSS habitat prepared consistent with the State
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 issued
written concurrence that such plan meets the standards set forth
in 50 C.F.R. § 17.32(b)(2); or (2) during the period that an NCCP
is being developed, the incidental Take occurs within an area
under the jurisdiction of a local government that is enrolled and
actively engaged in the preparation of such a plan and such Take
results from activities conducted in accordance with the NCCP
Conservation and Process Guidelines. Section 2835 provides that
DFG may permit the Taking, as provided elsewhere in the
California Fish and Game Code, of any identified species whose
"conservation" and "management" is provided for in a DFG approved
NCCP.
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The HCP/OMSP is exempt from the NCCP Act pursuant to
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Section 3 of the NCCP Act in that it was prepared pursuant to a
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^ pre-existing agreement for the preparation of a habitat
^ conservation plan or NCCP approved by the Director of DFG prior
to January 1, 1992, the effective date of the NCCP Act.
Notwithstanding this exemption, as set forth in various
in
agreements related to the preparation of the HCP/OMSP and the HMP
mm
^ among the Parties and among certain Parties and other State
^ agencies responsible for implementation of the NCCP Program,
*• including the NCCP Program enrollment agreements between the City
*• and the Resources Agency of the State of Califomia, the Parties
mn
intend that the HCP/OMSP be coordinated and consistent with the
mm
^ NCCP Program such that the objectives of the NCCP Program will be
^ s\ibstantially achieved and preparation of a regional NCCP will be
promoted. Further, while the HCP/OMSP independently meets the
requirements of CESA and ESA, the City and Fieldstone also have
MM
cooperated with the preparers of the HMP and the MHCP, which are
^ subarea and subregional plans prepared under the NCCP Act, to
^ ensure that the HCP/OMSP will be a completed component of the
NCCP Program.
PM
aun
Specifically, the HCP/OMSP plan has been prepared, approved
^ and implemented pursuant to the NCCP Act and is recognized as an
^ initial component of the HMP that meets the standards set forth
in 50 C.F.R. 17.32(b) (2). The HMP is a sxibarea component of the
on-going MHCP planning effort under the NCCP Program. The HMP
06-07-95
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mt
and MHCP are on-going multiple species and multiple habitat
conservation plans prepared in the context of ESA, CESA and the
NCCP Program to achieve the goals of and objectives of the
wildlife Regulations in general. On acceptance by the FWS and
DFG of the MHCP, the HCP/OMSP shall be considered an approved
component of that subregional NCCP Plan.
G. AUTHORITY OF THE CITY
The City is authorized to enter into and has entered into
this Agreement pursuant to statutes and the Constitution of the
State of Califomia, authorizing the City to regulate the use of
land, accept or approve open space and conservation easements,
create assessment districts, enact conservation and open space
elements for general plauis, preserve natural resources, including
Wildlife, and exercise general planning and zoning powers, and
enter into contracts and take other actions to conserve wildlife
resources and reconcile such concems with economic development.
See, e.g.. Califomia Govemment Code §§ 50060.5, 51205, 51070,
50575, 65302, 65560, 65864, Califomia 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 Management Authorizations
regarding public improvements and facilities, the possible
management of the Conserved Habitat and the Impact Areas
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generally, under Section 10(a), Section 2081 and Section 2835,
and a local jurisdiction with authority to regulate the use of
lands within its jurisdiction, including the Plan Area.
H. LEGAL REQUIREMENTS AND ASSURANCES
1. HCP/OMSP Consistency with Wildlife Conservation
Regulations
The HCP/OMSP as implemented by this Agreement is
intended to effect the long-term reconciliation of the
Conservation of the Species of Concem and economic development
activities within the Plan Area, and to be consistent with and
fulfill the requirements of all Wildlife Conservation Regulations
with respect to the Project and Plan Activities including,
without limitation: Section 10(a), the MBTA, Section 2081,
Section 2835, Section 404 of the federal Clean Water Act (with
respect to the avoidance, minimization and mitigation of all
impacts on the Species of Concem and their habitat with respect
to all waters of the United States within the Plan Area, but not
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 mitigation
for Species of Concern)), and any required mitigation of impacts
to, or other actions with respect to, Species of Concern and
06-07-95
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their habitat under any Streambed Alteration Agreements with
respect to the Plan Area required pursuant to Sections 1601 et
seq. of the California Fish and Game Code; the NCCP Program; the
Special Rule; the Califomia Native 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 planning and regulatory programs and
efforts addressing Wildlife in the City, the subregion and in the
region, such as the HMP, the MSCP and the NCCP Program; and, (2)
based on current scientific and other information, reduces and
mitigates the potential significant adverse inpacts of the
Project and Plan Activities on the Species of Concern and their
habitats to a level of insignificance.
2. Reliance on Undertakings
Each of the parties has bargained for and relied to
its detriment, and has intended that the other parties rely, upon
the significant and valuable undertakings, assurances, and the
punctual and complete performance under and with respect to this
Agreement.
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III. TERM OF THE AQRE!
A. STATED TERM
This Agreement shall become effective as of the Effective
Date and shall remain in full force and effect during the period
of time commencing on the Effective Date and terminating thirty
(30) years from the Effective Date (the "Stated Term"), siibject
to earlier termination pursusuit to the provisions of this
Agreement.
B. PERMANENCE OF CONSERVED HABITAT AND OFFSITE MITIGATION
PARCEL
Notwithstanding the Term of this Agreement, once any
Species of Concem have been incidentally Taken and their habitat
modified within the Plan Area pursuant to the HCP/OMSP and this
Agreement, the take and habitat modification shall be permanent.
Therefore the provisions of the HCP and this Agreement regarding
the maintenance, preservation and dedication of Conserved Habitat
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 this
Agreement.
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m.
IV. AUTHORIZATION TO TAKE
A. ISSUANCE OF SECTION 10 fa) PERMIT AND SECTIONS
2081/2835 MANAGEMENT AUTHORIZATIONS
1. Section 10 fa) Permit
On the Effective Date, FWS has issued a Section
10(a) Permit authorizing the incidental Take by the
Permittees in connection with the Project and Plan
Activities, of Species of Concem that are Listed or may be
Listed in the future under ESA (including plants to the
extent that their Take is prohibited by the ESA), which
permit requires conplisuice with this Agreement as a
condition thereof. As to each Species of Concem that is
not currently Listed under the ESA, the permit shall become
effective with respect to such Species of Concem upon its
Listing under the ESA.
2. Sections 2081/2835 Management Authorizations
Further to and as additional terms and conditions
of the Sections 2081/2835 Management Authorization issued
concurrently herewith, a copy or which is attached hereto as
Exhibit 7. this Agreement constitutes a Memorandum of
Understanding under Section 2081 and authorization under
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Section 2835 whereby the Permittees are authorized and
permitted to Take the Species of Concem (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
Notwithstanding Section IV.A.1, 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
Concem, FWS shall issue Section 10(a) Permits for the
Species of Concem 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 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 10(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
06-07-95
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m»
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.
C. LISTING OF OTHER SPECIES
In connection with the Listing under ESA or CESA of
any species other than a Species of Concem, and upon proper
application, FWS or DFG, as appropriate, shall expeditiously
consider the issuance and if appropriate issue all Section
10(a) Permits and Sections 2081/2835 Management
Authorizations that are necessary or desirable in order to
complete the Project upon a finding that the HCP/OMSP and lA
meet ESA or CESA, as applicable, standards for the issuance
thereof for such species.
In determining whether any further mitigation measures
are required in order to issue a Section 10(a) Permit or
Sections 2081/2835 Management Authorization 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 irr^acts 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
06-07-95
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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.
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 and
the City of any proposed mle which it promulgates to
protect a Species of Concern as a Listed Species of Concern.
Upon application for a Section 10(a) Permit or Sections
2081/2835 Management Authorization, FWS and DFG shall
endeavor to expeditiously process the application so as to
06-07-95
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allow, in accordance with Section IV,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 Approval of Proiect Bevond Wildlife
Nothing in this Section IV. shall be interpreted
as a final approval of the Project by the City. Further
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, itr^ose or
recommend any further Mitigation, compensation, enhancement,
protection or Conservation with respect to the Species of
Concern beyond that required by this Agreement.
2. ggngral Pl^n 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:
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F: \UPOOC\01 \2110\9506AGR. IA 26
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 Hcibitat and Impact Areas provided for in the
HCP/OMSP and provision that no further open space will be
required beyond the Conserved Hadaitat 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,
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
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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 pxiblic review of the
approval of those projects.
G. UTILITY LINES. OTHER FACILITIES AND ACTIVITIES IN
TOtJgBRVEP HAPITAT
The Project and Plan Activities include the creation,
constmction, 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 to
City ordinances for the protection of urban development from
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). 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 unreasonably
withheld, and in this regard: (i) shall be designed to
minimize and avoid impacts on the Species of Concem and
their habitat within Conserved Habitat to the maximum extent
06-07-95
F: \UP0OC\01\2110\9506AGR. lA 28
practicable, consistent with the requirements of the Project
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 within
Conserved Habitat and Minor Adjustments. Without limiting
the generality of the foregoing, any fuel modification zones
required to serve elements of the Project shall be located
within the Impact Areas to the extent reasonably practicable
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 IV.G.
V. OBLIGATIONS OF FIELDSTONE AND FUNDINQ
Fieldstone shall perform the covenants set forth in this
Section V., in accordance with and subject to the conditions
set forth in this Agreement.
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F: \UPDOC\01 \2110\9506AGR. IA 29
A. CONVEYANCE QF CONSERVED HABITAT AND OFFSITE
MITIGATION PARCEL
1. Conveyance of On-site Conserved Habitat
Prior to the disturbance of any habitat occupied
by any Species of Concern within a sxibarea of the Plan Area
(except for minor activities approved by the FWS and DFG,
which approval shall not be unreasonably withheld) and iri no
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:
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
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: (a) Fieldstone and or the HMP
06-07-95
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Conservancy establishes to the satisfaction of FWS, a viable
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 to
accept said conveyance and assume for the benefit of FWS and
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 HCP/OMSP
and this Agreement; or,
(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.l.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
conveyance in accordance with this paragraph and paragraph
(1), a homeowners association for the Project, provided
however, that said homeowners association satisfies the
requirements of V.A.l.b.(l).
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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 and
Plan Activities within Conserved Habitat in accordance with
Section IV.G. hereinabove; liens for taxes and assessments;
and rights, interests and exceptions and conditions of title
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 Agreement
and the HCP. In the event of any such reversion of title to
Fieldstone and the availability of the tmst 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.
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
06-07-95
F: \WPDOC\01\2110\9506AGR. lA 32
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. Conveyance of Offsite Mitigation 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
expense, shall manage, operate and maintain the Conserved
Habitat and in accordance with the HCP/OMSP and this
Agreement, Such required Management activities, as detailed
in the HCP/OMSP, include:
06-07-95
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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 with
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
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 limit
access thereto; no constmction access, parking or storage
06-07-95
F:\UPOOC\01\2110\9506AGR.lA 3 4
mt
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of equipment or 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 not
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 for
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 bmsh clearing and grading operations affecting
CSS Habitat; the Monitoring Biologist shall flush
Gnatcatchers from occupied habitat areas immediately prior
to bmsh 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 bmsh clearing or earth moving
equipment;
4. comply with City-mandated dust control
programs and periodically spray CSS Habitat vegetation in
the vicinity of constmction with water to reduce dust
06-07-95
F:\uroOC\01\2110\9506AGR.IA 35
accumulated on leaves as necessary to avoid injury to the
Ml
vegetation;
Ml
mm 5. minimize and mitigate the impacts on
•* Conserved Habitat in connection with any elements of the
Project or Plan Activities contemplated pursuant to Section
Ml
IV.G. hereinabove; and.
Mi
^ 6. carry out such additional protective
measures as are provided for in the HCP/OMSP.
D. FUNDING
Ml
„ 1. gy Fieiastorig
am
- Fieldstone shall pay, or cause to be paid, the
mm
amounts, and incur and bear the costs and expenses set forth
in this Section V.D.
m
m
mt a. Maintenance of Conserved Habitat ••
As provided in Section V.B., above,
mif Fieldstone shall incur and pay the costs and expenses with m
respect to the maintenance of the Conserved Habitat prior to
mm
M conveying said parcels pursuant to Section V.A., above.
06-07-95
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^ b. City HMP Program and Research
Prior to or concurrently with the
^ recordation of the first final subdivision tract map for
m
development within the Impact Areas related to the Project,
mm
Fieldstone shall pay:
tm
mm
Ml (1) to the City a sum of money, not to
exceed one hundred fifty thousand dollars
*" ($150,000), determined by the City as
mm
necessary to fund the HMP Program; and,
m
M (2) to a person or entity, approved by
^ FWS and DFG, the sum of fifty thousand
dollars ($50,000) to conduct research
** regarding the Conservation of the
IM
Gnatcatcher and CSS habitat.
pn
IM
mm 2. Funding of Long-term Maintenance of
^ Conserved Habitat
a. Budget for Long-term Maintenance and
Limit of Fieldstone Obligation
mm
Included in the Addenda to the HCP/OMSP is
the Budget for the annual costs with respect to the long-
06-07-95
F: \WPOOC\01 \2110\9506AGR. IA 37
few
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 been
established that will provide permanent 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, for
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 mnning with the land burdening
the residential development within the Plan
Area similar to that provided in the San
Bmno Mountain Habitat Conservation Plan and
Implementation Agreement; and,
(3) an endowment fund for such purpose
held by the City, Conservation Entity or, as
to the Conserved Hcibitat only, a homeowners
06-07-95
F: \UPDOC\01 \2110\9506AGR. IA 38
m
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 FWS
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 the
Parties be released from its obligations under this
Agreement with respect to the further maintenance of the
Conserved Habitat. Concurrently therewith or thereafter and
upon the request by Fieldstone, FWS, DFG and 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.
06-07-95
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Ml
mm
^ b. Public Efforts to Provide Long Term
^ Funding
Ma
•* The City may consider any proposal to
Ml
utilize public funding mechanisms for the long-term
mm.
conservation of the Conserved Hcdsitat under the HMP or MHCP
m^
by use of funds availcQjle for Wildlife Conservation
m purposes, including, but not limited to taxes, assessments
mm (such as those under the Hcibitat 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
mm
^ the City chooses to fund the itr^jlementation of the HCP/OMSP
^ as set forth in this Section by use of taxes, assessments or
levies that will affect the Project, Fieldstone shall, in
accordance with applicable law, cooperate with the City to
km
establish, and shall consent to, the iirposition of
^ reasonable taxes, assessments or levies encumbering the
^ Impact Areas, but in no event exceeding $50.00 per residence
»• or parcel per year (adjusted from time to time based on
•* changes in the Consumer Price Index ("CPI") for the Los
Mr
Angeles/Anaheim/ Riverside All Urban Consumers Index
mm
published by the U.S. Department of Labor).
06-07-95
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to
c. Funding through Homeowners Association
and Endowment
It is acknowledged that it is preferable for
the maintenance of the Conserved Habitat to be undertaken by
a Conservation Entity other than a homeowners association
and, accordingly, it is anticipated that public funding will
be provided for the maintenance of the Conserved Habitat as
provided s^Dove 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. The
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 intact
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 a 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 Section V. and to the authorization to
Fieldstone and the City to incidentally Take any Species of
06-07-95
F:\UP0OC\01\2110\9506AGR.lA 41
Concern, that this Agreement has been entered into and the
General Plan has been amended as provided in Section IV.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
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. Acquisition of Lands within the
Corridor between Carlsbad and the San Dieguito
Riverpark Planning Area
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F: \UPDOC\01\2110\9506AGR. lA 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 of
southem maritime chaparral arid decreasing the then proposed
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 conservation
organization approved by CDFG and FWS, to be held for
wildlife conservation uses, an additional 240 acres of Isuids
of value to the Gnatcatcher (as habitat or for connectivity)
within the corridor between the City and the San Dieguito
Riverpark Planning Area ("Offsite Conservation Lands").
These lands shall be paid for from sources available for the
implementation of the HMP and/or MHCP (in part by Fieldstone
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 siabdivision 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, designate
06-07-95
F:\UPDOC\01\2110\9506AGR.IA 43
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one or more candidate parcels that would be
acceptable as the Offsite Conservation Lands
(designated and approved parcels are
hereinafter referred to as "Approved
Candidate Parcels"); and.
(2) Fieldstone shall cause to be
mm
mm conveyed to the Conservation Entity or
another conservation organization designated
*" by FWS and DFG, fee title to a portion of
the Approved Candidate Parcels which are
mm
designated in a written notice by the City,
mm
Mr as lead agency, to Fieldstone (together with
*• the conveyance of a conservation easement to
DFG over said parcel, substantially the same
as the conservation easement provided for in
Section V.A.I.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 Date
until the end of the calendar month next
preceding the acquisition of the designated
parcel. ("Offsite Mitigation Parcel").
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tM
^ 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
mm
constraints established by Fieldstone in
mm,
conjunction with the development of the
Impact Areas within the Northwest Subarea.
mm In the event that Fieldstone acquires the
Offsite Mitigation Parcel prior to the
conveyance thereof pursuant to this
Paragraph VI.B.1.a.(2), it shall hold and
mm
maintain said parcel in the same manner as
provided in Section V.B. with respect to
Conserved Habitat.
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b. The approved HMP shall identify the
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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 Approved
Offsite Conservation Lands left to be acquired. The City,
as lead agency, shall coordinate activities so that any
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.
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F: \UPDOC\01 \2110\9506AGR. IA 45
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c. As a condition to any conveyance
pursuant to and satisfying the requirements of this Section
VLB., the following shall have been provided for through
the adopted HMP or MHCP, or in a manner otherwise approved
*" by FWS and CDFG: (i) funding and provision for the long-
term maintenance of the parcel to be conveyed, in a manner
mm
similar to the Conserved Habitat, or in the event that the
M 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 perpetuity for wildlife
conservation (subject only to exceptions approved by FWS and
CDFG).
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2. Further Acquisition 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 and
the MHCP as high conservation value in relationship to
regional conservation; provided, however, that the foregoing
shall not be constmed as conveying an option to purchase or
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
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that the foregoing shall not be considered as fulfilling any
mitigation requirements of Fieldstone.
3. Right of First Refusal
tm
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Concurrent with the taking effect of this
Agreement, Fieldstone, the City or its designee and the
^ holder of the deed of tmst encumbering the lands owned by
Fieldstone within the Rancheros-Southeast II Stibarea shall
have entered into a Right of First Refusal Agreement in the
form attached hereto as Exhibit 6.
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C. LONG TERM MAINTENANCE OF CONSERVED HABITAT
Following the conveyance of the Conserved Habitat by
Fieldstone pursuant to Section V.A., the Conservation Entity
shall manage and maintain the Conserved Habitat for wildlife
conservation purposes in accordance with this Section VI.
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m*
^ 1. Creation of the HMP Conservancy
The City shall use its best efforts to establish
the HMP Conservancy to accept fee title to the Conserved
mm
Habitat as the Conservation Entity for Conservation purposes
mn
and to assume for the benefit of FWS and DFG the obligation
MN
of maintaining the Conserved Habitat in accordance with this
mm 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,
IM
2. Annual Report. Program and Budget
Prior to Febmary 1 of each year, the
Conservation Entity shall prepare and deliver to the
mm
Wildlife Agencies and the City:
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^ a. a report on the management of the
Conserved Habitat during the prior year (based on a calendar
year), including information relating to the prior year
kt
regarding: any monitoring and surveying for the Species of
mm
^ Concern; expenditures by the Conservation Entity as compared
^ with the Budget and Budget projections prepared as part of
the previous year program;
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F: \WPDOC\01 \2110\9506AGR. lA 48
b. any Taking of the Species of Concern by
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the Conservation Entity in the Management of the Conserved
mm Habitat; and,
wm.
^ c, a proposed program for the current year
(and first two months of the next succeeding year),
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including: proposed enhancement, research and monitoring
mm
^ activities, together with a proposed Budget projection as
compared with the Budget and expenditures for the then next
*^ preceding year.
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3. Cooperation of Wildlife Agencies and the
City
In the iirplementation 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
mt Agreement.
The Wildlife Agencies and City shall
expeditiously, in good faith using their best efforts,
cooperate with Fieldstone in the implementation, performance
km and observance of the provisions, and in obtaining the
objectives of this Agreement. Such cooperation shall
06-07-95
F:\UPDOC\01\2110\9506AGR.rA 49
tm
include, for example: technical, monitoring (e.g.. in
connection with the monitoring under Permits and Management
*" Authorizations issued and entered into pursuant to this
Agreement) and research assistance, consultation and advice
mm
with respect to the maintenance of the Conserved Habitat.
mm
4. Coordination of Conservation and Management
mm Measures with Other Conservation Programs
km
The Parties shall cooperate in expeditiously
mn
approving the Offsite Conservation Lands to be acquired and
conveyed, as provided for in Section Vl.B.l. hereinabove, in
mv 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,
tm
Fieldstone and the City may participate in broader
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^ 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
MV
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 types
*" of funding provided for Wildlife, acquisition, or
*" Conservation purposes from any public or private source.
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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 or
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 individual
authorities and jurisdictions, to cooperate in the
relocation and consolidation of the southem-most SDG&E
easement into the northem-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 impacts
of any such consolidation on the Species of Concern.
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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 availcible 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 in, or threaten, a substantial change
in the population of any Species of Concem, 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 FQR 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:
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F: \urooc\01 \2110\9506AGR. IA 52
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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 of
said notice. Upon written request by any Party to, and the
approval of, the determining agency, which approval will not
be unreasonably witiiheld, the time for submission of said
information may be extended.
3. Findings
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
06-07-95
F: \WPDOC\01 \2110\9506AGR. IA 53
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 limited
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 endangered
or threatened species habitat by purchase when additional
06-07-95
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conservation measures are necessary for a listed Species of
Concern under the HCP/OMSP.
VIII. '^,mT^*mTF- MINOR ADJUSTMENTS Affp ^B*?CT';:Y ACTIONS
A. FURTHER ACTIONS AND AMENDMENTS
From time to time hereafter, the Parties shall execute
such instmments 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 instmment 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.
B. MINOR ADJUSTMENTS
Minor Adjustments in the Conservation measures under
the HCP/OMSP and this Agreement and all Permits and
Management Authorizations issued or entered into pursuant
hereto may be approved by Field Supervisor of FVlS, on behalf
06-07-95
F: \UPOOC\01 \2110\9506AGR. lA 5 5
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 Management Authorizations, 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 Listed
06-07-95
F:\UPDOC\01\2110\9506AGR.lA 5 6
Species of Concem with respect to the MAG Parcel under the
Section 10(a) Permits and Sections 2081/2835 Management
Authorizations contemplated by this Agreement shall be
derived from the City in connection with the approval of the
development of the MAG Parcel under the City Regulations.
As a condition precedent to permitting or allowing the
enjoyment of the Section 10(a) Permit and Sections 2081/2835
Management Authorization 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 assumption 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 party
beneficiary of this Agreement or any of the rights or
interests of Fieldstone or any other Party hereunder. It is
acknowledged that MAG Properties, in its discretion, may
06-07-95
F: \wrooc\01 \2110\9506AGR. IA 57
elect not to seek or obtain from the City the benefit of the
Section 10(a) Permits and Sections 2081/2835 Management
Authorizations, and may independently seek to obtain such
permits and authorizations directly from the Wildlife
Agencies or to otherwise comply with applicable law,
including the Wildlife Regulations. In such event, the
Parties shall in good faith consider the amendment of the
HCP/OMSP, the outstanding Section 10(a) Permits and the
Sections 2081/2835 Management Authorizations and this
Agreement to delete the MAG Parcel and to equitably reduce,
if appropriate, the obligations of Fieldstone thereunder and
under this Agreement.
X. TPtWCTATIOW FimpgTONg
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 Concem 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
06-07-95
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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 shall
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.1.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) Permits
and the Sections 2081/2835 Management Authorizations issued
or entered into in connection with this Agreement, as to the
affected Subarea or Subareas.
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
06-07-95
F: \UPDOC\01 \2110\9506AGR. IA 59
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
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 Siabarea, 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 Sections 2081/2835 Management
06-07-95
F:\UPDOC\01\2110\9506AGR.IA 60
Authorization, 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 10(a) Permit and the
Sections 2081/2835 Management Authorization issued
concurrently herewith, or any other Section 10(a) Permits or
Sections 2081/2835 Management Authorizations issued pursuant
to this Agreement, in the event of a material breach or
violation of any such Permits and Authorizations, the HCP,
this Agreement or goveming law. The regulations found at
50 C.F.R. §§ 13,27-13.29 shall govem the suspension and
revocation or termination of any Section 10(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 and
an opportunity to cure any breach of any Section 10(a)
Permit, Sections 2081/2835 Management Authorizations
contemplated herein or this Agreement before a termination
of the rights of Fieldstone or the City thereunder.
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F: \WP0OC\01 \2110\9506AGR. IA 61
Mi
D. SEVERABILITY
It is contemplated that Fieldstone may convey portions
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.
1. Fieldstone as to Proiect and Plan Activities
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 by, or the
termination or suspension of the rights of, the City under
this Agreement or the Permits and Management Authorizations
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 any of the Permits and Management
Authorizations with respect to the Project or Plan
Activities by Fieldstone.
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2. Conveyance of Parcels bv Fieldstone
After the conveyance of the Conserved Habitat and
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 this
Agreement, or any of the Permits and Management
Authorizations, with respect to Fieldstone or any other
transferee who did not so default or 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 with respect thereto
will be a basis for the termination of this Agreement and
any Section 10(a) Permit and Sections 2081/2835 Management
Authorization with respect to the Northwest Subarea issued
or entered into in connection herewith.
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E. UNIQUE WILDLIFE RESOURCES: IRREPARABLE TN.TTTPV
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, tetrporary injunctive relief,
specific performance or declaratory relief may be
appropriate in certain instances involving a breach of this
Agreement.
F. NO LIMITATION IN ATTTHnRTTy
This Agreement shall not limit the authority of FWS or
DFG to otherwise enforce the provisions of ESA, CESA, or any
similar statutes.
XII. NO FURTHER MITIGATION
A. NQ 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
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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. 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
Conservation being located within the Conserved Hstbitat. 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 Concem be located within any
Impact Area.
XIII. MISCELLANEOUS PROVISIONS
A, INCORPORATION QF 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
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the fact that the HCP/OMSP was not drafted as a legal
document.
B. ENTIRE AGREEMENT
This Agreement supersedes all other agreements, either
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
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 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 any obligation,
responsibility, liability, covenant, right or duty under
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this Agreement relating to such portions of the Plan Area so
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 by
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 aclcnowledge such release in
writing.
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 thereafter
be estopped from denying such release.
It is acJcnowledged 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 Permits
and Management Authorizations issued or entered into
pursuant to or as contemplated by this Agreement shall inure
06-07-95
F: \UPOOC\01 \2110\9506AGR. lA 67
to the benefit of 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 Landowner"). As a condition precedent to being
able to benefit from the City's rights and privileges under
any of the Permits and Management Authorizations, the
Successor Landowner shall have fully complied with the
following conditions:
1. The Successor Landowner shall have been
assigned by its predecessor-in-interest, Fieldstone or the
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
Management Authorizations 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
06-07-95
F: \WPOOC\01 \2110\9506AGR. lA 68
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 related Permits and Management Authorizations. Upon the
request of a Successor Landowner, the City shall act
expeditiously to consummate such an agreement.
In exercising the rights and privileges of the
City under any of the Permits and Management Authorizations,
the Successor Landowner is acting under the Permits of the
City, and the City shall take all actions to reasonably
assure that the Successor Landowner complies with the
provisions of this Agreement and the Permits and Management
Authorizations.
As an altemative to relying upon the rights and
privileges of the City with respect to the Permits and
Management Authorizations, 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
Management Authorizations. The Resource Agencies shall not
require as a condition of issuing or entering into any of
06-07-95
F: \WPDOC\01 \2110\9506AGR. IA 69
the new Permits and Management Authorizations 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 Management Authorizations within sixty (60) days
of receipt of a complete application therefor.
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 mle 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 full
06-07-95
F: \UPDOC\01 \2110\9506AGR. lA 70
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
Time is of the essence in the performance of this
Agreement.
H. NQ 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 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.
06-07-95
f: \UPOOC\01 \2110\9506AGR. IA 71
J. 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
Agreement shall not create in the p;iblic, 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.
K, EMINENT DOMAIN
Nothing herein shall be constmed to limit the power
of eminent domain held by any public agency.
L. FORCE ^lAJEWg
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 of
such Party ("force majeure"), including, but not limited to,
acts of God, labor disputes, sudden actions of the elements,
or actions of federal, state and local agencies, such Party
06-07-95
F: \UPD0C\01\2110\9506AGR. lA 72
shall be excused from whatever performance is affected by
such force majeure to the extent so affected, provided that
nothing in this Section shall be deemed to authorize either
Party to violate ESA or CESA and provided further that:
1. within fourteen (14) days after the
occurrence of the force majeure, the Party prevented from
performing gives the other Parties written notice describing
the particulars of the occurrence;
2. the suspension of performance is of no
greater scope and no longer duration than is required by the
force majeure;
3. the Party prevented from performance uses
its best efforts to remedy its inability to perform, except
that this subsection shall not require the settlement of any
legal action, strike, walk-out, lock-out or other labor
dispute on terms that, in the sole judgment of the Party
prevented from performing, are contrary to its interest; and
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.
06-07-95
F:\UPDOC\01\2110\9506AGR.lA 7 3
tm
tm
M. 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,
retum receipt requested, and addressed as follows or at
such other address that any Party may from time to time
notify the other Parties about in writing:
If to Fieldstone:
The Fieldstone/La Costa Associates
Limited Partnership
4565 Morehouse Drive, Suite 250
San Diego, California 92121
Re: Official Notice Concerning the City of
Carlsbad/Fieldstone HCP/OMSP
With copy to:
Lindell L. Marsh, Esq.
Siemon, Larsen & Marsh
19800 MacArthur Blvd., Suite 350
Irvine, California 92715
If to FWS:
Regional Director
United States Fish and Wildlife Service
500 NE Multnomah, Suite 607
Port1and, Oregon 97232
Re: Official Notice Concerning the City of
Carlsbad/Fieldstone HCP/OMSP
06-07-95
F: \WPDOC \01 \2110\9506AGR. IA 74
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
If to DFG:
and
Califomia Department of Fish and Game
Region 9 Headquarters
330 Golden Shore, Suite 50
Long Beach, California 90802
Re: Official Notice Conceming the City of
Carlsbad/Fieldstone HCP/OMSP
Califomia Department of Fish and Game
Legal Affairs Division
1416 Ninth Street
Post Office Box 944244
Sacramento, Califomia 94244-2090
Re: Official Notice Concerning the City of
Carlsbad/Fieldstone HCP/OMSP
If to the City:
The City of Carlsbad
2075 Las Palmas Drive
Carlsbad, California 92009
Re: Official Notice Concerning the City of
Carlsbad/Fieldstone HCP/OMSP
N. ATTORNEYS- FEES
Each Party shall bear and pay its own actual attorneys
fees, costs and expenses in connection with any action at
06-07-95
F: \WPDOC\01 \2110\9506AGR. IA 75
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).
0, EFFECTIVE DATE
This Agreement shall take effect as of the date first
set forth above.
P. 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.
06-07-95
F: \WPDOC\01 \2110\9506AGR. IA 76
IN WITNESS WHEREOF, the parties execute this Agreement
to be in effect as of the first written above.
'FWS'
Date:
Date:
UNITED STATES FISH AND WILDLIFE
SERVICE
Date: ri i IIJ By: MichaeV^jKyspear
Regional Director
Approved as to form:
Lynn Cox, Aj^sistant Regional
Solicitor
"DFG"
CALIFORNIA DEPARTMENT OF FISH AND
GAME
Date: v>t / / 70 By:
./tfBoyd Gi^ons, Director
APPROVED AS TO FORM:
Craig Manson, General Counsel
Caiifomia'Department of Fish
and Game
[Signatures continue]
06-07-95
F: \WPDOC\01 \2110\9506AGR. IA 77
"FIELDSTONE"
THE FIELDSTONE/LA COSTA ASSOCIATES
LIMITED PARTNERSHIP, A CALIFORNIA
LIMITED PARTNERSHIP
By: The Fieldstone Company, a
Caiifomia corporation
General Partner
DATE By:
Johp ^arone
Assistant Secretary
TO FORM:
arsh, Esq.
rsen & Marsh
DATE: 7^ fS'
"THE CITY"
THE CITY OF CARLSBAD, California
By: , Claude ide A. Lewis, Mayor ayor
AS TO FORM:
d R. Ball, City Attomey
06-07-95
F:\WPDOC\01\2110\9506AGR.lA 78
EXHIBIT 1
TO THE IMPLEMENTATION AGREEMENT REGARDING
THE CITY OF CARLSBAD/FIELDSTONE/LA COSTA ASSOCIATES
HABITAT CONSERVATION PLAN/ON-GOING MULTI-SPECIES PLAN
Glossary
1. "Biological Opinion" has the meaning set forth in
50 CFR § 402.02.
2. 'CEQA' means the California Environmental Quality
Act (California Piablic Resources Code §§ 21000
et seq.) and the guidelines and regulations
promulgated pursuant thereto (including, without
limitation, 14 California Code of Regulations
§§ 15000 at seg.).
3. "CESA" means the California Endangered Species Act
(California Fish and Game Code §§ 2050 £t seq.) and
the regulations promulgated in connection with that
Act (including, without limitation, 14 California
Code of Regulations §§ 40, 41, 243, 670.1 and
670.5).
4. "Conservation" means the same as set forth in 16
U.S.C. § 1532.
5. "CSS" means coastal sage scrub.
6. "DFG" means the California Department of Fish and
Game, an agency of the State of California,
7. "ESA" means the federal Endangered Species Act (16
U.S.C. §§ 1531 fit, seq.) and the regulations
promulgated in connection with that Act (including,
without limitation, 50 C.F.R. Parts 13, 17, 402 and
424) ,
8. "FWS" means the United States Fish and Wildlife
Service, an agency of the Department of Interior of
the United States.
9. "Gnatcatcher" means the subspecies Icnown as the
PQliQPtil^ califomica califomica.
10. "Xnpact Area" and "Impact Areas" mean,
respectively, a portion or portions of the Plan
Area, as shown on the Map, which are excluded from
Fieldstone/Carlsbad HCP/OMSP
Implementation Agreement
Exhibit 1. 1-1
Conserved Habitat and will be developed as a part
of the Project.
11. 'Listed' means: with respect to ESA, listed
thereunder as "threatened" or "endangered"; and,
with respect to CESA, listed thereunder as
"threatened" or "endangered" or a "candidate" for
such listing.
12. "MBTA Permit" means a permit issued pursuant to
the Migratory Bird Treaty Act and specifically
issued under 16 U.S.C. § 703, and 50 C.F.R.
§ 21.27, to allow the Take of any Birds of Concern.
13. 'MHCP Program' means the program sponsored by the
North County Wildlife Fomm of San Diego County, in
cooperation with FWS and DFG and in accordance with
the NCCP Program, for research and development of a
siibregional Multiple Habitat Conservation Plan for
the conservation of multiple types of habitat and
sensitive species that occupy or use lands located
within northem San Diego County.
14. "MBTA" means the Migratory Bird Treaty Act, 16
U.S.C. § 703 fit 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. "MBTA Permit" means a permit issued under the
MBTA.
16. "Mitigation" has the same meaning as set forth in
CEQA (14 Cal. Code of Regulations § 15370) and in
NEPA (40 C.F.R. § 1508.20), and includes, among
other things, the designation or reservation of
land as open space or funding to provide for the
Conservation of the Species of Concem.
17. 'NCCP' means a natural community conservation plan
prepared pursuant to the NCCP Act.
18. 'NCCP Act' means the Natural Community
Conservation Planning Act enacted by Chapter 765 of
California statutes of 1991 (A.B. 2172) (codified
in part in California Fish and Game Code §§ 2800
et seq.).
19. 'NCCP Program' means the pilot program of the
California Resources Agency and DFG under the NCCP
Fieldstone/Carlsbad HCP/OMSP
Implementation Agreement
Exhibit 1• 1-2
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 scmb habitat.
20. 'NEPA' means the National Environmental Policy Act
of 1969 (42 U.S.C. §§ 4321 et SfiS-) and the
regulations promulgated in connection with that Act
(including, without limitation, 40 C.F.R. §§ 1500
fit seq.).
21. "Parties" and "Party" mean, respectively, the
entities and agencies, or one of the entities or
agencies, that have executed this Agreement.
22. "Permittee" and "Pezmlttees" mean, respectively,
the entity or entities entitled to the benefit of
any authorization of Take pursuant to a
Section 10(a) Permit, Incidental Take Statement,
Section 2835, Section 2081 MOU or MBTA Permit
issued pursuant to this Agreement, and may include
one or all of the City, Fieldstone and the owner of
the MAG Parcel, as set forth in this Agreement.
23. "Section 4(d)' means Section 4(d) of ESA, 16
U.S.C. § 1533(d).
24. "Section 10(a)' means Section 10(a) of ESA, 16
U.S.C, § 1539, and the mles, regulations, or
guidelines promulgated in connection with that
statutory provision, including, without limitation
50 C.F.R. § 17.22.
25. "Section lO^a^ Permit" means: (1) a permit issued
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 Concem.
26. "Section 2081' means California Fish and Game Code
§ 2081, and any mles, regulations, or guidelines
promulgated in connection with that statutory
provision,
27. "Section 2081 MOW or "MOU" 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 Listed
Fieldstone/Carlsbad HCP/OMSP
Implementation Agreement
Exhibit 1. 1-3
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.
28. "Section 2835" means California Fish and Game Code
§ 2835, and all mles, regulations or guidelines
promulgated in connection with that statutory
provision.
29. "TaJce" and "Taking" mean the same as set forth in
ESA on the Effective Date.
30. "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 applications,
consultations and mles) that: (i) is significant
and adverse with respect to the continued existence
of a Species of Concern; and, (ii) was reasonably
unforeseen by the Wildlife Agencies as of the
Effective Date.
31. "Wildlife" means all wild animals, birds, plants,
fish, amphibians, reptiles and related habitat and
ecological communities upon which such wildlife
depends.
32. "Wildlife Agency" or "Wildlife Agencies" means,
respectively, either or both of FWS or DFG, as the
context requires. .
Fieldstone/Carlsbad HCP/OMSP
Implementation Agreement
Exhibit 1. 1-4
EXHIBIT 2
TO THE IMPLEMENTATION AGREEMENT REGARDING
THE CITY OF CARLSBAD/FIELDSTONE/LA COSTA
ASSOCIATES HABITAT CONSERVATION PLAN/ON-GOING
BIULTI-SPECIES PLAN
Fieldstone/Carlsbad HCP/OMSP
Implementation Agreement
Exhibit 2.
Rancheros
LEGEND
/•\./| Rancheros/Southeast II Subarea Boundary
Impact Areas
Rancheros/Southeast II Conserved Habitat Parcels
Existing Roadway
Future Roadway
•^1
Boats EASEMENT
NTS
Prepared By: Hofman Planning Associates
Exhibit 2:l\/lap Lands Covered by the Habitat Conservation Plan/Ongoing Mutti-Specles
Plan for Properties in the Southeast Quadrant ofthe City of Carlsbad, California
Sheet A - Rancheros/Southeast II Subarea
LEGEND
Northwest Subarea
Boundary
Impact Areas
Northwest Conserved Habitat Parcels
(previously proposed)
Northwest Conserved Habitat Parcels (additionally proposed)
57.4 Acres (Planimeter Measurement at 1 "=20ff scale)
(1) In conjunction with constuctlon of Carrillo Way
NTS
Prepared By: Hofman Planning Associates
Source: 0*Day Consulting
Exhibit 2:Map Lands Covered By the Habitat Conservation Plan/Ongoing Multi-Species
Plan for Properties In the Southeast Quadrant of the City of Carlsbad, California
Sheet B - Northwest Subarea
EXHIBIT 3
TO THE IMPLEMENTATION AGREEMENT REGARDING
THE CITY OF CARLSBAD/FIELDSTONE/LA COSTA ASSOCIATES
HABITAT CONSERVATION PLAN/ON-GOING MULTI-SPECIES PLAN
List of Species of Concem
from Approved Habitat Conservation Plan
Plants
1. Encinitas baccharis (Baccharis vanessae) (endangered)
2. San Diego thorn mint (Acanthomintha ilicifolia)
(endangered)
3. Thread-leaved brodiaea (Brodiaea filifolia) (endangered)
4. Ashy spike-moss (Selaginella cinerascens)
5. Blochtnan's dudleya (Dudleya blochmaniae ssp.
blochmaniae)
6. Califomia adder's tongue (Ophioglossum californicum)
7. California adolphia (Adolphia califomica)
8. Cliff spurge (Euphorbia misera)
9. Coast white lilac (Ceanothus verrucosus)
10. Del Mar manzanita (Arctostaphylos glandulosa ssp.
crassifolia)
11. Del Mar Mesa sand aster (Corethrogyne filaginifolia var.
linifolia)
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 (Harpagonella 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)
24. Sticky-leaved liveforever (Dudleya viscida)
25. Summer holly (Comarostaphylis diversifolia ssp.
diversifolia)
26. Western dichondra (Dichondra occidentalis)
Fieldstone/CarlBbad HCP/OMSP
Implementation Agreement
Exhibit 3. 3-1
me
Invertebrates
27. Dun skipper (Euphyes vestris harbinsoni;
28. Hermes copper (Lycaena hermes)
Amphibians
m
29. California red-legged frog (Rana aurora draytonii)
w 30. Westem spadefoot (Scaphiopus hammondii)
^ Reptiles
mm
31. Coastal rosy boa (Lichanura trivirgata rosafusca)
32. Coastal westem whiptail (Cnemidophoms tigris
multiscutatus)
33. Coast patch-nosed snake (Salvadora hexalepis virgultea)
^ 34. Coronado skink (Eumeces skiltonianus interparietalis)
35. Northem red diamond rattlesnake (Crotalus ruber ruber)
-M 36. Orange-throated whiptail (Cnemidophoms hyperythms
beldingi)
37. San Diego banded gecko (Coleonyx variegatus cdDbitti)
^ 38. San Diego homed lizard (Phrynosoma coronatum
*" blainvillei)
mi 39. San Diego ringneck snake (Diadophus punctatus similis)
40. Silvery legless lizard (Anniella pulchra pulchra)
^ 41. Southwestem pond turtle (Clemmys marmorata pallida)
^ 42. Two-striped garter snake (Thamnophis hammondii)
Birds and Mammals
43. Least Bell's vireo (Vireo bellii pusillus) (endangered)
m 44. Southwestem willow flycatcher (Empidonax trailli
ext imu s) (endangered)
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 califomica
califomica)
49. Cooper's hawk (Accipiter cooperi)
50. Loggerhead shrike (Lanius ludovicianus)
51. Northem harrier (Circus cyaneus)
^ 52. San Diego cactus wren (Campylorhynchus bmnneicapillus
couesi)
mm Fieldstone/Carlsbad HCP/OMSP
Implementation Agreement
Exhibit 3. 3-2
53. Southem California mfous-crowned sparrow (Aimophila
ruficeps canescens)
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. Dulzura California pocket mouse (Chaetodipus
californicus femoralis)
59. Northwestern San Diego pocket mouse (Chaetodipus fallax
fallax)
60. San Diego black-tailed jackraibbit (Lepus califomicus
bennettii)
61. San Diego desert woodrat (Neotoma lepida intermedia)
62. Southern grasshopper mouse (Onychomys torridus ramona)
63. Townsend's westem big-eared bat (Plecotus townsendii
townsendii)
tt
Fieldstone/Carlsbad HCP/OMSP
Implementation Agreement
Exhibit 3. 3-3
EXHIBIT 4
TO THE IMPLEMENTATION AGREEBIENT REGARDING
THE CITY OF CARLSBAD/FIELDSTONE/LA COSTA ASSOCIATES
HABITAT CONSERVATION FLAN/ON-GOING BCULTI-SPECIES PLAN
Findings 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
iit^lemented 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 respect
to the HCP/OMSP as in^lemented by this Agreement:
1. the taking of the Species of Concern in
connection with the Plan Activities will be incidental to an
otherwise lawful activity;
2. the impacts of such taking of the Species of
Concern will be, to the maximum extent practicable, minimized
and mitigated;
3. Fieldstone and the City have ensured that
adequate funding for the implementation of the HCP/OMSP will
be provided through this Agreement;
4. Fieldstone and the City have ensured that
adequate procedures to deal with Unforeseen Circumstances are
provided through this Agreement;
5. the taking of the Species of Concem in
connection with the Plan Activities as contemplated by the
HCP/OMSP and this Agreement will not appreciably reduce the
likelihood of the survival and recovery of the Species of
Concern in the wild;
6. all measures required by FWS as necessary or
appropriate for purposes of the HCP/OMSP are provided for in
and implemented by this Agreement;
Fieldstone/Carlsbad HCP/OMSP
Implementation Agreement
Exhibit 4. 4-1
tm
1. 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 with 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 by the MBTA, and
has considered the assurances provided to Fieldstone and the
City under this Agreement and has determined that, based upon
the measures contained in the HCP/OMSP as implemented by this
Agreement, MBTA Permits allowing Take of the birds covered by
the MBTA in connection with the Plan Activities shall be
issued concurrently herewith and thereafter upon appropriate
application, to the Permittees.
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:
Fieldstone/Carlsbad HCP/OMSP
Implementation Agreement
Exhibit 4. 4-2
•vmt
FINDINGS 1-8 ARE DRAWN FROM DFG GUIDELINES FOR NO JEOPARDY
DETERMINATIONS. DFG SHOULD CONSIDER WHETHER TO MAKE THE
FINDINGS WITH RESPECT TO THIS 208X. DFG TYPICALLY MAKES THESE
FINDINGS FOR 2090 C0NSX7LTATI0NS AND COULD MAKE THEM UNDER 2053
FOR 2081 PERMITS.
1. No viable or recoverable population of any
,^ Species of Concem will be eliminated and no significant
proportion of a population of any Species of Concern will be
adversely affected by the Plan Activities.
2. The range of the Species of Concern will not
be significantly diminished by the Plan Activities.
3. The hc±»itat used by the Species of Concem
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 Concem
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.
•im
6. Take in connection with the Plan Activities
** will not adversely affect plans for recovery or eventual
IM delisting of any Species of Concem currently listed as
"endangered" or "threatened" under CESA.
^ 7. Take in connection with the Plan Activities
will not significantly adversely interfere with the
reproductive or other behavior of the Species of Concern.
8. Take in connection with the Plan Activities
will not result in the extinction of the Species of Concem.
mn
mm 9. Take of the Species of Concern in connection
with the Plan Activities is authorized for Conservation and
Management purposes pursuant to CESA, including Section 2081.
*" 10. Take of the Species of Concem in connection
with the Plan Activities will not jeopardize the continued
existence of any Species of Concem or result in the
destmction or adverse modification of habitat essential to
the continued existence of the Species of Concern.
Fieldstone/Carlsbad HCP/OMSP
Implementation Agreement
Exhibit 4• 4-3
FINDINGS 11-13 ARE DERIVED DIRECTLY FROM SECTION 1 OF A.B.
2172 (UNCODIFIED) AND CAL. FISH AND GAME CODE SECTION 2805(a),
WHICH ARE THE PROVISIONS OF THE NCCP ACT THAT ESTABLISH THE
PURPOSES OF NCCP PLANS
11. The HCP/OMSP as implemented by this Agreement
will, to the maximum extent feasible, avoid, minimize and
compensate for impacts of the Plan Activities on Species of
Concern and Plan Area habitat.
12. The HCP/OMSP as implemented by this Agreement
will sustain and restore the habitat within the Plan Area to
the level necessary to maintain, in conjunction with the HMP,
MHCP and the NCCP Program, the continued viability of those
biological communities impacted by the Plan Activities.
13. The HCP/OMSP, as independent initial component
of the HMP, and together with the HMP, as a component of the
MHCP, provides for area-wide protection and perpetuation of
natural wildlife diversity, while allowing con^atible and
appropriate development growth. Therefore, the HCP/OMSP is
consistent with the goals and purposes of the NCCP Act and
will serve as a con^leted independent component of an NCCP
which encotr^asses the Plan Area, prepared, approved and
implemented pursuant to the NCCP Act. In this context, the
HCP/OMSP as ittqplemented by this Agreement also serves to
further regional wildlife conservation planning, which can
effectively address cuimilative impact concems, minimize
wildlife habitat fragmentation, promote multispecies
management and conservation, identify and ensure appropriate
mitigation for impacts on fish and wildlife, and promote the
conservation of broad based natural communities and species
diversity.
14. The HCP/OMSP as implemented by this Agreement
ensures that the impacts of the Plan Activities on Species of
Concem and Plan Area habitat will be insignificant or will
be minimized and mitigated to a level of insignificance as
required by CEQA.
(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. 4-4
D. FINDINGS AND DETERMINATIONS BY THE CITY
The City has balanced the environmental, health, safety
and socioeconomic attributes of the Project and has
^ considered all identifiable alternatives to and minimization
and Mitigation measures for the Project, and has found and
—' determined that:
*" 1. The Conservation and Management measures
contained in the HCP/OMSP and implemented by this Agreement
provide for Species of Concern and Plan Area habitat as
required by all City Wildlife Regulations;
— 2. The HCP/OMSP as implemented by this Agreement
^ ensures that the impacts of the Plan Activities on Species of
Concern and Plan Area habitat will be insignificant or will
be minimized and mitigated to a level of insignificance as
required by CEQA;
mm
3. The HCP/OMSP as in^lemented by this Agreement
provides that an adequate management reporting and monitoring
km program for the HCP/OMSP Conservation and Management measures
will be implemented as required by CEQA;
4. The itt^lementation of the HCP/OMSP provides
** significant benefit to goals and purposes of the HMP.
Fieldstone/Carlsbad HCP/OMSP
Implementation Agreement
Exhibit 4. 4-5
EXHIBIT 5
TO THE IMPLEMENTATION AGREEMENT REGARDING
THE CITY OF CARLSBAD/FIELDSTONE/LA COSTA ASSOCIATES
HABITAT CONSERVATION PLAN/ON-GOING MULTI-SPECIES PLAN
RECORDING REQUESTED BY:
WHEN RECORDED RETURN TO:
Craig Manson, Esq.
General Counsel
Califomia Department of
Fish and Game
1416 Ninth Street
Sacramento, California 95814
NO DOCUMENTARY TRANSFER TAX DUE
California Revenue & Taxation
Code § 11922
Presented for Acceptance by the
California Department of Fish
and Game
This space for
Recorder's Use Only
Form of Conservation Easement
CONSERVATION EASEMENT DEED
this
This CONSERVATION EASEMENT DEED ("Deed") is made
_ day of , 1995, by
, a California ("Grantor"),
in favor of the State of California ("Grantee");
Fieldstone/Carlsbad HCP/OMSP
Implementation Agreement
Exhibit 5. 5-1
RECITALS
WHEREAS, Grantor is the owner in fee, subject to
matters of record, of approximately acres of land located
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/Onaoina Multi-Species Plan for Properties
in the South East Quadrant 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 and
Wildlife Service and Grantee dated June , 1995,
Implementation Agreement ("Implementation Agreement"), the
Grantor desires to transfer and convey to Grantee and Grantee
desires to accept the conservation easement described
hereinbelow ("Conservation Easement"), on and subject to the
terms and conditions set forth below; and,
WHEREAS, Grantor desires to assure Grantee that
Grantor will hold the Conserved Habitat Lands conveyed hereby
for the conservation of the Species of Concern, as that term
is defined in the Implementation Agreement in accordance with
and subject to the terms and conditions of this Deed;
NOW, THEREFORE, for and in consideration of the
facts recited cibove, the mutual covenants, terms, conditions
and restrictions contained herein, and pursuant to the laws
of Califomia and California Civil Code Sections 815 through
816, inclusive. Grantor hereby grants, assigns, transfers and
conveys to Grantee, and Grantee hereby accepts, a
conservation easement ("Conservation Easement"), as defined
in Paragraph 2. below, in perpetuity in and over the
Conserved Habitat Lands, reserving to Grantor and excepting
therefrom, all rights, title and interest in and with respect
to the Conserved Habitat Lands of every kind and nature that
are not expressly included in the Conservation Easement.
1. Purpose. The purpose of this Conservation Easement
is to assure Grantee that, except as provided in Paragraph 3
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, siibject to the provisions of the
Implementation Agreement.
Fieldstone/Carlsbad HCP/OMSP
Implementation Agreement
Exhibit 5. 5-2
MM
kF*
km
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 and
the rights set forth in Paragraph 2.2. below, together with
the other rights and interests provided to Grantee herein.
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. Rights 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;
2.2.2. Enter upon the Conserved Habitat Lands
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 Lands
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.
3. Reservations and Exceptions. Notwithstanding any
other provisions of this Deed, Grantor has reserved and there
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 the
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. If
Grantee determines that the Grantor or its successor has
taken or threatens to take action that is in violation of the
terms of this Conservation Easement, Grantee shall give the
then record fee title owners of the Conserved HsUaitat Lands
written notice of such actual or threatened violation and
shall demand in writing that said violation be cured or
Fieldstone/Carlsbad HCP/OMSP
Implementation Agreement
Exhibit 5. 5-3
mm
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, the
restoration of any condition that existed within the
Conserved Habitat Lands prior to said violation).
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 Grantee
determines that provision of such written notice and demand
of cure will result in significant and unacceptable delay of
commencement of a cure to such actual or threatened
violation. In such cases, Grantee may proceed in any action
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, both
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 or
in equity, including, but not limited to, the remedies set
forth in California Civil Code Sections 815 through 816,
inclusive.
5. CQgtS Qt gnfgfCSment. Any costs incurred by either
party in enforcing the terms of this Conservation Easement
against the other, including, without limitation, costs of
suit and reasonable attomey's fees, and any costs of
restoration of the Conserved Habitat necessitated by a
violation of the terms of this Conservation Easement shall be
borne by the breaching party. If a party prevails in any
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
liability for any attomeys 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. Any forbearance by
Fieldstone/Carlsbad HCP/OMSP
Implementation Agreement
Exhibit 5. 5-4
km
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 of
any right or remedy upon breach by Grantor shall impair such
right or remedy or be constmed as a waiver.
7. Acts Beyond Grantor's Control. Nothing contained
in this Deed shall be constmed to provide a right to Grantee
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, or
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 convey
a general right of access to the pxiblic, however, access for
scientific research and interpretive purposes is conveyed to
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 before delinquency
all taxes, assessments, fees, and charges of whatever
description levied on or assessed against the Conserved
Habitat Lands by competent authority (collectively "taxes"),
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
"Indemnified Parties") from and against all liabilities,
penalties, costs, losses, damages, expense, causes of action,
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, or
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
Fieldstone/Carlsbad HCP/OMSP
Implementation Agreement
Exhibit 5. 5-5
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 to compensation
from the condemning authority in accordance with applicable
law.
10. Assignment. 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) of
the United States Intemal 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, £t seq. Grantee shall not
assign, release, modify, relinquish or abandon its rights and
ttw obligations under this Conservation Easement without prior
written consent of the Grantor and USFWS, which consent shall
not be unreasonably withheld.
11. Subsequent Transfers. Grantor shall include a
description of the terms of this Conservation Easement in any
deed or other legal instmment by which it divests itself of
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 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 in
any way.
12. Estoppel Certificates. Upon request by Grantor,
tm Grantee shall within fifteen (15) days execute and deliver to
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.
Fieldstone/Carlsbad HCP/OMSP
Implementation Agreement
Exhibit 5. 5-6
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:
mt, Regional Manager
Department of Fish and Game
mm state of Califomia
3330 Golden Shore, Suite 50
Long Beach, CA 90802
with the following note on the envelope:
Official Notice Regarding Fieldstone/Carlsbad Conservation
Easement Deed
tm
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 Regarding Fieldstone/Carlsbad Conservation
Easement Deed
Mm-
or to such other address as either party from time to time
IW shall designate by written notice to the other. Notice shall
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 instmment in the official records of
San Diego County, Califomia and may re-record it at any time
as may be required to preserve its rights in this
Conservation Easement. .
Fieldstone/Carlsbad HCP/OMSP
Implementation Agreement
Exhibit 5. 5-7
15. General Provisions.
15.1. Controlling Law. The interpretation and
performance of this Deed shall be governed by the laws of the
State of California.
15.2. Libgrfll Cgnstmctign- Any general mle
of constmction to the contrary notwithstanding, this Deed
shall be liberally constmed 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
shall be favored over any interpretation that would render it
invalid,
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 provision
MM 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 Agreement. This instmment sets
forth the entire agreement of the parties with respect to
this Deed, and supersedes all prior discussions,
negotiations, understandings, or agreements relating to this
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
their respective personal representatives, heirs, successors,
and assigns and shall continue as a servitude mnning 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 hereunder
except with respect to breaches thereon that have occurred
prior to said conveyance.
Fieldstone/Carlsbad HCP/OMSP
Implementation Agreement
Exhibit 5. 5-8
15.8. Captions. The captions in this Deed have
been inserted solely for reference and are not a part of this
Deed and shall have no effect upon its constmction 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 instmment as against any party who has signed
it. In the event of any disparity between the counterparts
produced, the recorded counterpart shall be controlling.
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:
APPROVED AS TO FORM:
Craig Manson, General Counsel
California Department of Fish and Game
Fieldstone/Carlsbad HCP/OMSP
Implementation Agreement
Exhibit 5. 5-9
EXHIBIT A
Description of Conserved Habitat Lands
tit*
Fieldstone/Carlsbad HCP/OMSP
Implementation Agreement
Exhibit 5. 5-10
EXHIBIT 6
TO THE IMPLEMENTATION AGREEMENT REGARDING
THE CITY OF CARLSBAD/FIELDSTONE/LA COSTA ASSOCIATES
U HABITAT CONSERVATION PLAN/ON-GOING MULTI-SPECIES PLAN
Form of Right of First Refusal Agreement
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
corporation ("City"), whereby, based on the following
recitals of fact, the parties hereby agree as follows.
Recitals
This Agreement is based on the following facts:
A. This Agreement is entered into pursuant to
Section VLB. 3. of that certain agreement among the
Fieldstone, City and others entitled "Implementation
Agreement Regarding The Citv of Carlsbad/Fieldstone/La
Costa Associates Habitat Conservation Plan/On-going
Multi-Species Plan" {"lA"), 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 II Subarea, as
described in the lA 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 lA ("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,
subject to the terms and conditions set forth
hereinbelow.
Fieldstone/Carlsbad HCP/OMSP
Implementation Agreement
Exhibit 6. 6-1
mm
Agreement
1. Right of First Refusal.
Prior to the sale and conveyance of any of the Subject
Parcels, or any portions thereof, within five (5) years from
the date of this Agreement- (hereinafter referred to as the
"Term"), except for a conveyance to Lender or an affiliate
of 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.
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 title
to the City within six (6) months of the Effective Date of
the Notice in accordance with Section I.e. below. The Offer
shall automatically terminate unless it is accepted in
strict accordance with Paragraph l.b. below.
•H t). Acceptance 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
w 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
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
«M 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 tmt
Fieldstone/Carlsbad HCP/OMSP
Implementation Agreement
Exhibit 6. 6-2
Fieldstone or Lender at the time of the Closing resulting
from the non-development of the Offered Lands. In the event
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 I.e. hereinbelow.
c. Closing of Purchase.
In the event City accepts an Offer in accordance
with Paragraph l.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 an escrow
to effect the Closing in accordance with the following terms
and conditions; and, (ii) City shall make a non-refundable
deposit into said escrow in 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) The Purchase Price and conveyance of
title shall be effected simultaneously and prior
to the end of said six (6) month period through an
escrow established with a title company selected
by Offeror.
(2) Conveyance of title to the Offered Lands
shall be by quitclaim 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 for
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
necessary in connection with the development and
«i* use of other lands within the "Plan Area", as that
term is defined in the lA. If Offeror is Lender
or an affiliate of Lender, title shall be conveyed
subject to all matters of record at the time
Offeror acquired title.
(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:
Fieldstone/Carlsbad HCP/OMSP
Implementation Agreement
Exhibit 6. 6-3
(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
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.
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 obligation
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 l.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
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. Miscellaneous Provisions.
a. 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:
Fieldstone/Carlsbad HCP/OMSP
Implementation Agreement
Exhibit 6. 6-4
To Fieldstone:
The Fieldstone/La Costa Associates
Limited Partnership
4565 Morehouse Drive, Suite 250
San Diego, CA 92121
Attn: Mr. John Barone
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:
Bank of America, Illinois
RESAAM-Orange County
555 Anton Boulevard, 9th Floor
Costa Mesa, CA 92626
Attention: Michael Atkins
or such other address as either party from time to time
shall designate by written notice to the other. Notice
shall be deemed effect ive (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.
c. Controlling Law.
The interpretation and performance of this Deed
shall be governed by the laws of the State of California.
Fieldstone/Carlsbad HCP/OMSP
Implementation Agreement
Exhibit 6. 6-5
d. Modifications and Amendments.
Any alterations, changes or modifications of or to
this Agreement, to be effective, shall be made in writing
and shall be executed by all parties.
e. Successors and Assigns.
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.
g- No Effect on Loan Documents.
Nothing in this Agreement shall modify or amend
any provision of any loan agreement, deed of trust or other
documents between Fieldstone and Lender, Without limiting
the generality of the foregoing, if Fieldstone sells all or
any part of the subject Parcels hereunder. Lender shall have
all rights and remedies under such documents relating to
such sale, application of proceeds and release of the
Subject Parcels.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the day first above written.
"FIELDSTONE"
The Fieldstone/La Costa Associates
Limited Partnership, A California Limited
Partnership
By: The Fieldstone Company, a
California corporation
General Partner
By:
John Barone, Senior
Project Manager
Fieldstone/Carlsbad HCP/OMSP
Implementation Agreement
Exhibit 6• 6-6
Ml
"LENDER"
Bank of America, Illinois
By:
"CITY"
The City of Carlsbad, California
By:
Fieldstone/Carlsbad HCP/OMSP
Implementation Agreement
Exhibit 6.. 6-7
EXHIBIT 7
SECTION 10(a) PERMIT
US. RSH ANO WILDUFE SERVICE
FEDERAL RSH AND WILDLIFE PERMIT
1. PERMITTEE
and
Fieldstone/LaCosca Associates
5465 Morehouse Drive, #250
San Diego, California 92121
Cicy of Carlsbad
2975 Las Palmas Drive
Carlsbad, Caiifornia 92009
2. AUTMORTTY-STAnrreS
16 USC 1539(a)
REGULATIONS lAnacnmai
50 CFR 17.22
3. NUMBER
PRT-79575Q
4. RENEWABU
• VBS
S. MAY C0°
n N
S. ELECTIVE
6/7/1995
. 7. EXPIR
' 6/7/
1. NAMeANOTTTl.COF PRINCIPAL OFFICER iH ^1 m * OumnmMI
Fieldstone: John Barone, Asst. Secretary
City: Claude A. Lewis, Mayor
9. TVPe Of PERKBt
Incidental Take PRT-795759
10. LDCXnON WHERE AUTHORtZEO ACnVfTV UAV BE CONDUCTED
Within the southeast quadrant of the City of Carlsbad, California, as described in
accompanying Habitat Conservation Plan/On-going Multi-species Plan.
11. CONOmONS AND AUTHORIZATIONS:
A. OCHCRAL CONDtTKMS SET OtfT IN SUSPMfT D OF SO CFR 13. AND SPECIFIC CONDITIONS CONTAINED IN FEDERAL REGULATIONS OTEO IN BLOCK "7 ABOVE.
MCREBV UADE A MRT OF THIS PERm ALL ACTIVITIES AUTHORIZED HEREIN MUST BE CARRIED OUT IN ACCORD WITH ANO FOR THE PURPOSES OESCRlBED IN
APPUCATION SUBMITTED. CONTWUED VAUOrrr. OR RENEWAL. OF THIS PERMIT IS SUBJECT TO COMPLETE ANO TIMELY COMPLIANCE WITH ALL APPLIC4
COMXTKMS. INCLUDING THE FlUMO OF ALL RCOUIRED INFORMATION AND REPORTS
B. THE VAUDTTY OF THIS PERMTT IS ALSO CONOmONEO UPON STRICT OBSERVANCE OF ALL APPUCASLE FOREIGN. STATE. LOCAL OR OTHER FEDERAL LAW
C. VALtf) FOR USE BY PERMTTTEE NAMED ABOVE.
SEE ATTACHED
C AODmONAL CONOmONS ANO AUTHORCUmONS ON REVERSE ALSO APPLY
12. REPOimNG REQUIREMENTS
See Habitat Conservation Plan/On-going Multi-species Plan and Implementation
Agreement. Also see permit Condition I
mtiMOtr TTTLE OATE
Regional Director "6/7/95
ORIGINAL
U.S. FISH AND WILDLIFE SERVICE. PORTLAND, OREGON
PERMIT CONDITIONS FOR PRT-795759
D. Acceptance of chia permit serves «s evidence chat the permittees
undersrand and agree to abide by tha "General Conditions for Native Endangered
and Threatenad Wildlife Species Pennits" (copy attached).
E. The permittees, and their designated agents, are authorized to take C'-cill,
harm, harass) the coastal Califomia gnatcatcher (Polioptila califorTiica
caiifomica) , least Bell's vireo (Vir«o fcelli pusillus). and southwestern
willow flycatcher (Empidonax Cralllli Bxcimus), incidental to grading or other
development activities necessary for the construction, operation, and
management of developments as described in the permit application, and as
conditioned herein.
F. Upon the listing of any unlisted, covered species addressed In the
Implementation Agreement (Exhibit 3), the permittees, and their designated
agents, are authorized to incidentally take (kill, harm, harass) those covered
species for which Cake would otherwise be prohibited under section 9 of the
Federal Endangered Species Act of 1973. as amended (Act), and its implementing
regulations, or pursuant to a rule promulgated under section 4(d) of the Act.
Such take must be incidental to grading or other development activities
necessary for the construction, operation, and management of developments as
described in the permit application, and as conditioned herein.
G. The authorization granted by this permit is subject to full and complete
compliance with, and implementation of, the Habitat Conservation Plan/Ongoing
Multi-species Plan for Properties in the Southeast Quadrant of the City of
Carlsbad, Califomia (HCP/OMSP). addenda thereto, and the Implementation
Agreement executed by The Fieldstone Company, the City of Carlsbad, the
California Department of Fish and Game, and the U.S. Fish and Wildlife
Service.
H. Upon locating dead, injured, or sick endangered or threatened wildlife
species, the permittees or their designated agents must notify within 1
working day the Service's Division of Law Enforcement (135 West F Street Room
440, San Diego, Califomia. 92101. telephone 619-557-5063) or the Carlsbad
Field Office (2730 Loker Avenue West. Carlsbad, California, 92008, telephone
619-431-9440). Written notification to both offices must be made within 5
calendar days and must include the date, time, and location of the specimen
and any other pertinent information.
I. An annual report shall be prepared as described in the HCP/OMSP and shall
ba submitted by June 7 of each year that the permit is in effect. One copy of
the report shall be submitted to each of the following 3 entitles: 1)
Assistant Regional Director, Ecological Services, U.S. Fish and Wildlife
Service, 911 Northeast 11th Avenue, Portland, Oregon 97232; 2) Field
Supervisor, Carlsbad Field Office. 2730 Loker Avenue West,"Carlsbad,
California, 92008; and 3) Program Manager, Natural Community Conservation
Planning, California Department of Fish and Game, 4949 Viewridge Avenue Sar
Diego, California 92123.
PRT-795759 Conditions, cont'd.
tm
J. A copy of this permit must be in the possession of the permittees and
designated agents while conducting taking activities. Please refer Co the
permit number in all correspondence and reports conceming permit activities,
Any questions you may have about this permit should be directed to the Field
Supervisor, Carlsbad Field Office.
tm
m
m
IM
m
Ut
nm
/^^^^\ United States Department of the Interior
FISH AND WILDUFE SER\aC£
911 NEllth Avenue
Portiand, Oregon 97232-4IB 1
Implamented Scotcmber
•n
GENERAL CONDITIONS FOR NATIVE ENDANGERED
AND THREATENED WILDLIFE SPECIES PERMITS' ••• 1. All sections of Title 50 Code of Federal Regulations Part 13 are conditions of the permit.
•M
2. All applicable foreign, State, local, or other Federal laws, including trespass laws and other laws requiring
*"* permits, must be observed.
•H ...
3. The permittee must carry a copy of the permit while conducting authorized activities.
4. The permit number must be legibly printed on all documents and advertisements involving activities
conducted under a permit.
w 5. Unless otherwise authorized on the face of the permu, the wildlife must be immediately released at or
near the capture site after the permitted activity.
HH
6. Living specimens must be handled and shipped so as to minimize risk of injury, damage to health or cruel
treatment.
7. The container in which authorized wiidiife is shipped must be plainly marked with names and addresses
•« of shipper and consignee and an accurate description of the contents including common and scientific
' name and number of each within.
tM
8. Any dead or injured specimens of the authorized wildlife found may be salvaged or cared for.
,^ 9. BIRD BANDING, marking, radid tagging, etc., must be conducted in accordance with a Federal Bird
Marking and Salvage Permit.
10. At the discretion of the Service, a Service employee may inspect the facilities or accompany the
permittee during any activity conducted pursuant to this permit. The permittee shall allow Service
personnel complete and Immediate access to any materials and information generated as a resuit_af this
permit. Any refusal, obstruction, or hindrance of Service participation in such work shall be grounds for
^ suspension or revocation of this permit in accordance with 50 CFR 13.27 or SO CFR 13.28, respectively.
THE FOLLOWING CONOmONS APPLY UNTIL AUTHORIZED DISPOSAL OF THE WILDLIFE {LIVE OR DEAD).
AND THEIR PROGENY. REGARDLESS OF THE EXPIRATION OATE OF THE PERMIT:
11. The authorized wildlife may NOT be sold, donated, or transferred without written authorization from the
Service.
12. Any dead authorized wildlife shall be preserved according to standard museum practices and held for
scientific purposes whenever practical.
iwf 13. Any live SEA TURTLES held must be maintained in accordance with the "Standards for Care and
Maintenance of Sea Tuales Held in Captivity" specified by the Service.
I I i K 1
SI3 I
eigrnee, the Solicitor or Service shall
ISBue a letter pr other docunient aii-
Ihorlzlng Its return. This letter or
other document ehall be delivered per-
aonally or sent by reglatered or cer-
tified mall, return receipt requested,
and shall Identify the owner or con-
signee, the seized property, and, IT ap-
propriate, the bailee of the seized prop-
erty. It shall also provide that upon
presentation of the letter or other doc-
ument and proper Identification, and
the signing of a receipt provided by the
Service, the seized property Is author-
ized to be released, provided It Is prop-
erly marked In accordance with appli-
cable State or Federal requirements.
PART 13-6ENERAL PERMIT
PROCEDURES
Subpart A—inlroductlon
13.1 GencrRl.
13.3 Purpose of regulatlona.
13.3 Scope of rsculatloDS.
13.4 Bmergflitcy varUtloo from requlre-
menu.
13.5 laformatloD oolUcilon r«Qulrem*nu.
Sut>part B—AppNcollon few PaimRs
1311 AppHcKtloo prooedur«a. 13.12 Oenerftl Information rcqulr«mentB on ftppllcatlona for p«rmlts.
Subpart C—Permit Admlnlsticrtlon
13.21 lasuanca of permlta. '
13.23 Renewal of permit*.
16.33 Amandmantof permlu. 13.24 Right of auccasalon by carUIn persona. 13.35 Permits not transferabla; agenta.
13.36 Diacontlnuaoce of permit activity.
13.37 Permit auapenalOD. 13.21 Permit revocation.
13.39 Review procedures.
Subpart D—Conditions
13.41 Humane conditions.
13.42 Permits are specific.
13.4) Altarattoa of permits.
13.44 Dlaplay of permit.
ia.4ft Piling ot reports.
13.48 MalntansDce of records. 13.47 lospectloa requlremeot. 13.41 Compltsnce with eondltlons of permit.
13.49 Surrandar of permit.
13.50 Accaptaoce of liability.
AutiioRrrr: IS U.8.C. 66aa: 1< U.3.C. w. 713: 16 U.B.C. 1431-1: 18 U.S.C. 1383; 16 U.S.C.
lUB(d): 18 U.S.C. 1S39, IMUO; 16 U S C. 3314;
50 CFR Ch. t (10-1-93 Edillon)
18 U.S.C. 42; 19 U.S C. 1202; E.O. II911, 11 FR
15683; 31 U.S.C- 9701.
SOllllCe: 39 Fli 1161. .Inn 1. I!I71 iiitlcas oih-
ei wise iioieil.
Subpart A—Introduction
113.1 General.
Each person Intending to engage In
an activity for which a permit is re-
quired by this subchapter B shall, be-
fore commencing such activity, obtain
a valid permit authorizing such activ-
ity. Bach person who desires to obtain
the permit privileges authorized by
this subchapter must make application
for such permit In accordance with the
requirements of this part 13 and the
other regulations In this subchapter
which set forth the additional require-
ments for the specific permits desired.
If the activity for which permission Is
sought Is covered by the requirements
of more than one part of this sub-
chapter, the requirements of each part
must be met. If the information re-
quired for each specific permitted ac-
tivity is Included, one application will
be accepted for all permits required,
and a single permit will be Issued.
113.2 Purpose of rcgulnllons.
The regulations contained In this
part provide uniform rules, contlitlons,
and procedures for the application for
and the Issuance, denial, suspension,
revocation, and general administration
of all permits Issued pursuant to this
subchapter B.
[M FR38H1, Sept. 14. 1969)
113.3 Scope of regulations.
The provisions In this part are in ad-
dition to, and are not In lieu of. other
permit regulations of this subchapter
and apply to all permits Issued there-
under, including "Import and Mark-
ing" (part li). "Feather Imports" (part
15), "Injurious Wildlife" (part I6>. "En-
dangered Wildlife and Plants" (part 17).
"Marine Mammals" (part IB), "Migra-
tory Birds" (part 21), "Eagles" (part 22)
and "Endangered Species Convention"
(part 23). Aa used In thia part 13, the
tisrm "permit" shall refer to cither a li-
cense, permit, or certificate as the con-
text may require.
U.S. Fish and Wildlife Sen^.. Inledor
(« PR IW65. Feb. 22. W7. as amended at 42
FR 32371. June 24. 1977; 15 FR W-GT-I. Aug 2b.
1080)
113.4 Emergency varlntlon fr<im re-
quirements.
The Director may approve variations
from the requirements of this part
when he finds that an emergency exists
and that the proposed variations will
not hinder effective administration of
this subchapter B. and will not be un-
lawful.
113.5 Information collection require-
ments.
(a) The Information collection re-
quirements contained within this Part
13 have been approved by the Office of
Management and Budget under 44
U S.C. 3507 and assigned Clearance
Number 1016-0022. This information is
being collected to provide Information
necessary to evaluate permit applica-
tions. This information will be used to
review permit applications and make
decisions, according to criteria estab-
lished in various Federal wildlife con-
servation statutes and regulations, on
the Issuance, suspension, revocation or
denial of permits. The obligation to re-
spond Is required to obtain or retain a
permit. ^ ,
(b) The public reporting burden for
these reporting requirements Is esti-
mated to vary from 16 minutes lo 4
hours per resiwnse, with an average of
0 803 hours per response. Including time
for reviewing instructions, gathering
and maintaining data, and completing
and reviewing the forma. Comments re-
garding the burden estimate or any
other aspect of these reporting require-
ments should be directed to the Service
Information Collection Clearance Offi-
cer MS-224 ARLSQ. Fish and Wildlife
Service. Washington, DC 20240. or the
Office of Management and Budget. Pa-
perwork Reduction Project (1018 0022).
Washington, DC 20503
|47 FR 30785. July 15. 1M2. as nmendert at H
FR 38147. Sept. 11. 1989)
Subpart B-Appllcallon lor Permits
113.11 Application procedures.
The Service may not Issue a permit
for any activity authorized by this sub-
chapter n unless the applicant has filed
§13.11
an application In accordance with the
following procedures Applicants do not
have to submit n separate application
for each permit unless otherwise re-
(liilicd by this subchapter.
(a) Forms AppHcatloiiB must be sub-
mitted in writing on a Federal Fish
and Wildlife License/Permit Applica-
tion (Form 3-200) or as otherwise spe-
cifically directed by the Service.
(b) Foruiardiiip inj/riiclions. Applica-
tions for permits In tho following cat-
egories should be forwarded to the Issu-
ing office Indicated below.
(1) Migratory bird banding permits
(50 CFR 21.22)—Bird Banding Labora-
tory, Office of Migratory Bird Manage-
ment. U.S. Fish and Wildlife Service,
Laurel, Maryland 20706. (Special appli-
cation forms must be used for bird
banding permits They may be obtained
by writing to the Bird Banding Labora-
tory).
(2) Exception to designated port (50
CFR part 14). Import/export license (50
CPR 14.93), migratory bird permit,
other than banding (50 CFR part 21)
and Bald or Golden eagle permits (60
CFR part 22)—Assistant Regional Di-
rector for Law Enforcement of District
In which the applicant resides (see 50
CFR 10.22 for addresses and boundaries
of the Law Enforcement Districts).
(3) Feather quota (50 CFR part 15), In-
jurious wildlife (50 CFR part 16), endan-
gered and threatened species (50 CFR
part 17). marine mammal (50 CFR part
18) and permits and certificates for the
Convention on International Trade In
Endangered Species (CITES) (50 CFR
part 23)—U.S. Flab and Wildlife Serv-
ice. Federal Wildlife Permit Office,
P.O. Box 3654. Arlington. Virginia 22203.
(c) Time notice. The Service will proc-
ess all applications as quickly as pos
slble. However. It cannot guarantee
final action within the time limits the
applicant requests Applicants for en
dangered species and marine mammal
permits should submit applications tc
the Office of Management Authority
which are postmarked at least 90 cal
endar daya prior to the requested effec
tlve date. AppllcanU for all other per
mils should submit applications to th(
issuing office which arc postmarked at
least 60 days prior to the requested ef
fcctivc date.
§13.12
(d) Fees. (1) Unless otherwlae exempt-
ed by this paragraph, applicants for Is-
suance or renewal of permits must pay
the required permit processing fee at
the time of application. Applicants
should pay feea by check or money
order made payable to "U.S. Fish and
Wildlife Service." The Service will not
refund any application fee under any
circumstances If the Service has proc-
essed the application. However, the
Service may return the application fee
If the applicant withdraws the applica-
tion before the Service haa signifi-
cantly processed It.
(2) Except as provided In paragraph
(d)(4) of thia section the fee for process-
ing any application Is $25.00. If regula-
tions In this subchapter require more
than one type of permit for an activity,
and the permits are Isaued by the same
office, the iaaulng office may Issue one
consolidated permit authorizing the
activity. The Issuing office may charge
only the highest single fee for the ac-
tivity permitted.
(3) A fee shall not be charged to any
Federal, State or local government
agency, nor to any Individual or insti-
tution under contract to auch agency
for the proposed activities. The fee
may be waived cr reduced for public In-
stitutions (see 60 CFR 10.12). Proof of
auch status must accompany the appli-
cation.
(1) Nonstandard fees.
Typ* mpmtuM FM
knpofVEiport Uc«nM (S«c«en I4.t3| .. tt2S a InipKkm
IMI.
MMIM MWWIMJ ISMhm lUt} 100
Ugr story BlnHUndbtg o> mwtitng Hon*
(at.22).
eaU u OOWM EagMa (P«l 22)
*•
fmUttm
(e) Abandoned or Incomplete applica-
tions. Upon receipt of an Incomplete or
Improperly executed application, or If
the applicant doea not submit the prop-
er feea, the'Issuing office will notify
the applicant of the deficiency. If the
applicant faila to supply the correct In-
formation to complete the application
or to pay the required fees within 45
calendar days of the date of notifica-
tion, the Service will consider the ap-
plication abandoned. The Service will
not refund any feea for an abandoned
application.
50 CFR Ch. I (10-1-93 Edillon)
(17 FR 30785. July 15, 1962. as amended at 50
FR 62889. Dae. 26. 1985; 51 FR 1031. Jan 27
1989; M FR 36117. Sept. II, 1989)
H 13.12 (tcncrel Informntlon require-
ments on BppllcalloDs for permits.
(a) General Information required for
all appllcatlona. All applications must
contain the following Information:
(I) Applicant's full name, mailing ad-
dress, telephone number(s), and,
(1) If the applicant Is an individual,
the date of birth, height, weight, hair
color, eye color, sex, and any business
or Institutional affiliation of the appli-
cant related to the requested permitted
activity: or
(11) If the applicant Is a corporation,
firm, partnership, association. Institu-
tion, or public or private agency, the
name and address of the president or
principal officer and of the registered
agent for the service of process;
(2) Location where the requested per-
mitted activity la to occur or be con-
ducted;
(3) Reference to the part(s) and
section(a) of this subchapur B aa Hated
in paragraph (b) of this section under
which the application Is made for a
permit or permits, together with any
additional Justification, Including sup-
porting documentation as required by
the referenced part(a) and aectlon(a):
(4) If the requested permitted activ-
ity Involves the Import or re-export of
wildlife or plants from or to any for-
eign country, and the country of ori-
gin, or the country of export or re-ex-
port restricts the taking, possession,
transportation, exportation, or sale of
wildlife or plants, documentation aa in-
dicated In {14.62(c) of thia aubchapter
B;
(6) Certification In the following lan-
guage:
I hereby certify that I have read and am fa-
miliar with tha rcKuiatlons conUiiied In title 60. part 13. of the Code of Federal Regu
latlona snd the other applicable parts In sub-
chapter B of chapter 1 or title 50. Code of Federal Ragulatlona. and I further certify
that tha Information aubmltted In thia appli-cation for a permit la complete and accurate
to tha best of my knowledge and belief. 1 un-derstand that any falae statement herein
may sub)ect me to auapenslon or revocation of this permit and to tha criminal penalties of 18 U.3.C. 1001.
U.S. I=lsh and Wlldlllo Serv.. Inlorlor
(6) Desired effective date of permit
except where Issuance date Is fixed by
the part under which the permit is Is-
sued;
(7) Date;
(8) Signature of the applicant; and
(9) Such other information as tho Di-
rector determines relevant to the proc-
essing of the application.
(b) Additional information required on
permit applications. As stated In para-
graph (a)(3) of this section certain ad-
ditional information la required on all
applications. These additional lequlre-
menU may be found by referring to the
section of thia aubchapter B cited after
the type of permit for which applica-
tion Is being made:
Typa ol pannM
hnportaiicin al nood»«iQnai«<J pofiir
Sciwiaac
OMerioiallan pievanBon
Economic heftfiMp
MwklAg ol (wd>*0« m conUkM):
Symbd martiing
lmfioiVa>pOf1 liceftM
Feaawr Import quota: linportrton of eninf • •.
Infirtout w«dhl«: ImportaHon of tNpmoni
MmtQmmi oMHa and plani pwmrii;
SlmSaiH* ol appaaiartee
SdwiMc. M«anc«manl ol pfopagaikm or
•urvtval. bwkltntal l«lil»»0 >» •**'•
Sc)«nlilk. piopaQaiion. ot tui^vtl lot plaiMi
Ccottomlc hatilih<p lot wUdttto
CcoAomic ha><)»lMp tm plwiu
Thiaaltnwl wMhlt and plani pemiit:
Sitniiatlly ol appwatKA
0*natal lot wikaita
AtnMlcM aHiffaloi-lHiyaf o< ttnnm
Omtmt lot pianii
hMna tMnwnali pMtM):
SciarMc lajaaich
PoMc *»plaif
MgraMty Md pvtmilt:
Bandmg o> nwking SctaoWk ciMtctinn
Taxideitiwii -••
Waiartowi ««i* mn6 dbposai
Special evieoaurtil
Spcdal puq>ose
Falconty
Raplot ptopagaiion p«w>a
DafMMtaWm convti
Eagia patiMs:
SdeoiAc o« ^'hmmon
Indian i*l<oiou> «•
Daptadailon trnkd
Falcofvy punxM**
lafca ol BOklati aagla EndanoMMl Soacmt Conimmon pwmttt
Saciion
1431
14.33
14 83
14 93
tS21
I a 22
17 52
1722
17 62
17 23
17 63
17 52
II 32
IT 42|a)
t7 72
IB3I
IBSI
2t 22
31 23
21 24
21 2i
Jl 26
21 27
2170
21.30
21 41
22 31
22 32
22 23
22 24
22 25
23 IS
139 PR 1161. Jan. 1. 1971. as amended at 12 FR
l(Hfi5 Feb 22. 1977; 12 FR 32377. June 21. 1977;
44 FR H006. Sept. 17. 1979; 11 FR 59083. Oct
12 im 15 FR 6fi673. Aug. 25. 1980; 15 FR 78151.
Nov 25 IMO; 16 FR 12C80. AuK. 24. 1981; 16 FK
31607 July 8. 1983; 18 FR 57300. Dec. 29. 1961;
513.21
50 FR 39687. Sept. 30. 1965; 60 FR IMOO. Oct.
31. 1986; 54 FR 38117. Sept. 11. 1989)
Subpart C—Permit Admlnlslfotlon
ft 13.21 Issuance of permits.
(a) No permit may be Issued prior to
the receipt of ft written application
therefor, unless a written variation
from the requirements, as authorized
by SIS'!. iB Inserted Into the official file
of the Bureau. An oral or written rep-
resentation of an employee or agent of
the United States Government, or an
action of such employee or agent, ehall
not be construed as a permit unless It
meets the requirements of a permit as
defined In 60 CFR 10 12,
(b) Upon receipt of a properly exe-
cuted application for a permit, the Di-
rector shall Issue the appropriate per-
mit unless:
(!) The applicant has been assessed a
civil penalty or convicted of any crimi-
nal provision of any statute or regula-
tion relating to the activity for which
the application Is filed. If such assess-
ment or conviction evidences a lack of
responsibility.
(2) The applicant has failed to dis-
close material Information required, or
has made false statements as to any
material fact. In connection with his
application;
(3) The applicant haa failed to dem-
onstrate a valid Justification for the
permit and a allowing of responsibility;
(4J The authorization requested po-
tentially threatens a wildlife or plant
population, or
(5) The Director finds through fur-
ther Inquiry or Investigation, or other-
wise, that the appllcitnt Is not quali-
fied.
(c) Disqualifying factors. Any one ol
the following will disqualify a person
from rccelvlnc permits Issued undei
this Part.
(1) A conviction, or entry of a plea oi
guilty or nolo contendere, for a felony
violation of the Laccy Act. the Mlgra
tory Bird Treaty Act. or tho Bald and
Golden Eagle Protection Act dlaquali
flcs any such person from receiving oi
exercising the privileges of a permit
unless such disqunllflcatlon has beei
expressly waived by the Director In re
si>onsc to a wrlitcn petition.
i 1 m m S 1
§ 13.22
(2) The revocation of a permit for
reaaona found in 113.28 (a)(1) or (a)(2)
disqualifies any such person from re-
ceiving or exercising the privileges of a
similar permit for a period of five years
from the date of the final agency decl-
alon on auch revocation.
(3) The failure to pay any required
fees or aaaessed costs and penalties,
whether or not reduced to Judgement
diaqualifles auch person from receiving
or exercising the privileges of a permit
aa long as such moneys are owed to the
United States. This requirement shall
not apply to any civil penalty pres-
ently subject to administrative or Judi-
cial appeal; provided that tha pendency
of a collection action brought by the
United SUtes or Ita asalgneea shall not
constitute an appeal within the mean-
ing of thia Bubaectlon.
(4) The failure to submit timely, ac-
curate, or valid reports as required
may disqualify suCh person from re-
ceiving or exerolalng the privileges of a
permit as long aa the deficiency exists.
(d) Use of supplemental information.
The Issuing officer, in making a deter-
mination under this aubaeotlon. may
ues any Information available that Is
relevant to tha Iwue. This may Include
any prior conviction, or entry of a plea
of guilty or nolo contendere, or assess-
ment of civil or criminal penalty for a
violation of any Federal or State law
or regulation governing the permitted
activity. It may alao Include any prior
permit revocations or auspenalona, or
any reports of 8Ut« or local, officlale.
ThaMsaulng officer shall consider all
relevant facta or Information available,
and may make Independent Inquiry or
Investigation to verify Information or
subaUntlate qualifications aaaerted by
the applicant.
(e) Conditions of Issuance and accept-
ance. (1) Any permit automatically In-
corporatea within Ita terms the condl;
tlona and requ|r«menta of Subpart D of
this part and of any portfa) or
aectlon(B) apeclfloally authorizing or
governing the activity for which the
permit la Issued.
(3) Any person aooepting and holding
a permit under thia Subchapter B ac-
knowledges the neoeaalty for cloaa reg-
ulation and monitoring of the per-
mitted activity by the Ocvernment. By
accepting auch [lermlt. the permittee
50 CFR Ch. 1(10-1-93 Edillon)
consents to and shall allow entry by
agenta or employeea of the Service
upon premiaes where the permitted ac-
tivity Is conducted at any reasonable
hour. Service agents or employees may
enter such premises to Inspect tlie lo-
cation; any books, records, or permits
required to be kept by this Subchapter
B; and any wildlife or plants kept
under authority of the permit.
(0 Term of permit. Unless otherwise
modified, a permit Is valid during the
period specified on the face of the per-
mit. Such period shall Include the ef-
fective date and the date of expiration.
(g) Denial. The Issuing officer may
deny a permit to any applicant who
falls to meet the issuance criteria set
forth In this section or in the part(s) or
sectlon(s) specifically governing the
activity for which the permit Is re-
quested.
139 FR 1161, Jan. 4, 1974. aa amended at 12 FR
32377. June 24. 1977; 47 FR 30765. July IS. 1982;
64 FR 38148. Sept. 14. 1989)
113.22 Renewal of permlta.
(a) Application for renewal. Applicants
for renewal of a permit must submit a
written application at least 30 days
prior to the expiration date of the per-
mit. Applicants must certify In the
form required by |13.12(aM5) that all
statements and Information In the
original application remain current
and correct, unleaa prevloualy changed
or corrected. If such Information Is no
longer current or correct, the applicant
must provide corrected Information.
(b) Reneujal criteria. The Service shall
Issue a renewal of a permit If the appli-
cant meets the criteria for Issuance In
il3.21(b} aiid la not dlaquallfled under
113.21(0).
(c) ConflnuQlfon of permitted activity.
Any peraon holding a valid, renewable
permit, who haa compiled with this
section, may continue the activities
authorized by the expired permit until
tha Service haa acted on such person's
application for renewal.
(d) Denial. The Iaaulng officer may
deny renewal of a permit to any appli-
cant who falla to meet the issuance cri-
teria set forth in 113.21 of thia part, or
In the part(B) or section(a) apeciflcally
governing the activity for which the
renewal la requested.
U.S. Fish and Wlldllle Seiv., interior
(51 FR 38148. Sept. 14. 19891
113.23 Amendment of permlta.
(a) Permittee's request. Where clr-
cumatances have changed so that a per-
mittee desires to have any condition of
his permit modified, such permittee
must Bubmit a full written Justifica-
tion and supporting Information In
conformity with this pert and the part
under which the permit was laaued.
(b) Service reservation. The Service re-
aerves the right lo amend any permit
for Just cause at any time during lu
term, upon written finding of necea-
slty.
(c) Change of name or address. A per-
mittee la not required to obtain a new
permit If there Is a change In the legal
Individual or business name, or In the
mailing address of the permittee. A
permittee Is required to notify the Is-
Bulng office within 10 calendar days of
such change. This provision does not
suthorlxe any change In location of the
conduct of the permitted activity when
approval of the location la a qualifying
condition of the permit.
(54 PR 36148. Sept. 14. 1989|
113.24 Right of succession by certain
persons.
(a) Certain persons, other than the
permittee are granted the right to
carry on a permitted activity for the
remainder of the term of a current per-
mit provided they comply with the pro-
vlslona of paragraph (b) of thia section.
Such persons are the following:
(1) The surviving apouse. child, ex-
ecutor, administrator, or other legal
representative of a deceaaed permittee;
and
(2) A receiver or truatee In bank-
ruptcy or a court designated assignee
for the bsnent of creditors.
(b) In order to secure the right pro-
vided In this section the person or per-
sons dsBlrlng to continue the activity
shall ftirnlsh the permit to the Issuing
officer for endorsement within 90 days
from the date the auccesaor beglna to
carry on the activity.
(54 FR 36149. Sept. II. 1969)
§13.27
113.2S Permits not tranafcrablei
agenta.
(a) Permlta Issued under this part are
not tranaferable or assignable. Some
permits authorize ceruin activities in
connection with a business or commer-
cial enterprise and In the event of any
lease, sale, or transfer of such buainesa
entity, tho auccesaor muat obuln a
permit prior to continuing the per-
mitted activity. However, certain lim-
ited rights of auccesslon are provided
in t13.24.
(b) Bxcept as otherwise stated on the
face of the permit, any person who Is
under the direct control of the permit-
tee, or who la employed by or under
contract to the permittee for purposes
authorized by the permit, may carry
out the activity authorized by the per-
mit, as an agent for the permittee.
(M FR 36119. Sept 11. 1969)
113.20 Dlacontluuanco of permit ncllv-
Ity.
When a permittee, or any successor
to a permittee as provided for by (13-21.
discontinues activities authorized by a
permit, the permittee shall within 30
calendar days of the discontinuance re-
turn the permit to the Issuing office to-
gether with a written statement sur-
rendering the permit for cancellation.
The permit shall be deemed void and
cancelled upon its receipt by the Issu-
ing office. No refund of any fees paid
for Issuance of the permit or for any
other fees or costs associated with a
permitted activity shall be made when
a permit Is surrendered for cancella-
tion for any reason prior to the expira-
tion date stated on the face of the per-
mit.
(51 FR 38149. Sept. 11. 1989|
113.27 Permit suspension.
(a) Criteria for suspension. The privi-
leges of exerolalng aome or all of the
permit authority may be suspended at
any time If tho permittee Is not In
compliance with the conditions of the
permit, or with any applicable lawa or
rcgulatlona governing the conduct of
the permitted activity. The Issuing of-
ficer may also suspend ali or part of
the privileges authorized by a permit If
the permittee fulls to pny any foes.
•IS
§ 13.26
penalties or costa owed to the Govern-
ment. Such suspension shall remain In
effect until the Issuing officer deter-
mines that the permittee haa corrected
the deficiencies.
(b) Procedure for suspensloTt. (1) When
the lasuing officer believes there are
valid grounda for suspending a permit
the permittee ehall be notified In writ-
ing of the proposed suspension by cer-
tified or registered mall. This notice
ehall Identify the permit to be sus-
pended, the reaaon(8) for such suapen-
alon, the actloha neceasary to correct
the deficiencies, and Inform the per-
mittee of the right to object to the pro-
posed suapenalon. The Isaulng officer
may amend any notice of suspension at
any time.
(2) Upon receipt of a notice of pro-
posed suspension tha permittee may
file a written objection to the proposed
action. Such objection muat be In writ-
ing-, must be filed within -45 calendar
daya of the date of the notice of pro-
posal, must atate the reasons why the
permittee objects to the proposed sua-
penalon. and may Include aupportlng
documentation.
(3) A decision on the suspension shall
be made within 45 daya after the end of
the objection period. The Issuing offi-
cer shall notify the permittee in writ-
ing of tha Service's decision and the
reasons therefore. The issuing officer
shall also provide the applicant with
the information concerning the right
to request reconsideration of the deci-
sion under 113.29 of this part and the
procedures for requesting reconsider-
ation.
(M FR 38149. Sapt. M, IMS)
f 13.28 Permit revocation.
(a) CrlferJa for revocation. A permit
may be revoked for any of the follow-
ing reasons:
(1) The permittee willfully violates
any Federal or Stata statute or regula-
tion, or any Indian tribal law or regu-
lation, or any law or regulation of any
foreign country, which involves a vio-
lation of th* oondltlona of the permit
or of the laws or regulations governing
the permitted activity; or
(2) The permittee falla within 60 daya
to correct deflclenclea that were the
cause of a permit euapenslon; or
50 CFR Ch. I (10-1-93 Edillon) U.S. Fish and Wlldlllo Soiw.. Inleilor
(3) The permittee becomes disquali-
fied under {13.21(c) of this part; or
(4) A change occurs In the statute or
regulation authorizing the permit that
prohlblta the continuation of a permit
Issued by the Service; or
(6) The populatlon(s) of the wildlife
or plant that Is subject of the permit
declines to the extent that continu-
ation of the permitted activity would
be detrimental to maintenance or re-
covery of the affected population.
(b) Procedure for revocation. (1) When
the lasuing officer believes there are
valid grounds for revoking a permit,
the permittee ahall be notified in writ-
ing of the proposed revocation by cer-
tified or registered mall. This notice
shall identify the permit to be revoked,
the reasonfs) for such revocation, the
proposed disposition of the wildlife. If
any, and Inform the permittee of the
right to object to the proposed revoca-
tion. Tlie lasuing officer may amend
any notice of revocation at any time.
(2) Upon receipt of a notice of pro-
posed revocation the permittee may
file a written objection to the proposed
action. Such objection muat be In writ-
ing, must be filed within 45 calendar
days of the date of the notice of pro-
posal, must state the reasons why the
permittee objecta to the proposed rev-
ocation, and may include aupportlng
documentation.
(3) A decision on the revocation ahall
be made within 45 daya after the end of
the objection period. The lasuing offi-
cer shall notify the permittee In writ-
ing of the Service's decision and the
reiisons therefore, together with the In-
formation concerning the right to re-
quest and the procedures for requesting
reconsideration.
(4) Unless a permittee files a timely
request for reconsideration, any wild-
life held under authority of a permit
that is revoked must be disposed of In
accordance with Instructions of the Is-
suing' officer. If a permittee files a
timely request for reconsideration of a
proposed revocation, such permittee
may retain possession of any wildlife
held under authority of the permit
until final disposition of the appeal
process.
(54 FR 38149.-Bept II. 1969)
113.29 Review procedures.
(a) Request for reconsideration. Any
person may request reconsideration of
an action under this part If that peraon
Is one of the following:
(1) An applicant for a permit who has
received written notice of denial;
(2) An applicant for renewal who haa
received written notice that a renewal
la denied;
(3) A permittee who has a permit
amended, suspended, or revoked, ex-
cept for those actions which are re-
quired by changes In statutes or regu-
lations, or are emergency changes of
limited applicability for which an expi-
ration date la set within 90 days of tho
permit change; or
(4) A permittee who has a permit Is-
sued or renewed but has not been
granted authority by the permit to per-
form all activities requested In the ap-
plication, except when the activity re-
quested la one for which there la no
lawful authority to issue a permit.
(b) Method of requesting reconsider-
alion Any person requesting reconsid-
eration of an action under this part
must comply with the following crl-
^^^fn Any request for reconsideration
must he in writing, signed by the per-
son requesting reconsideration or by
the legal representative of that peraon.
and muat be submitted to the Issuing
°'(!n'The request for reconsideration
must be received by the Issuing officer
within 45 calendar days of the date of
notification of the decision for which
reconsideration is being
(3) The request for rcconalderatlon
ahall state the decision for which re^
consideration is being requested and
shall elate the reason(s) for the recon-
sideration, including presenting any
new Information or facU pertinent to
the laaue(s) raised by the request for
reconsideration. ,. .. _
(4) The request for reconsideration
shall contain a certification In aub-
suntlally the same form as that pro-
vided by J 13.12(aM6). H * request for re-
^onsldelratlon does conuin auch
certification, but Is otherwise timely
and appropriate. It ehall be held and
the perion submitting the request shall
be given wrillon notice of the need to
submit the cerMficatlon wllhin 15 cal-
§ 13.29
endar daya. Failure to aubmlt certifi-
cation ahall result In the requeal being
rejected aa Insufficient in form and
content.
(c) Inquirv bv the Service. The Service
may Inatltute a aeparate inquiry Into
the matter under consideration.
(d) Dclcnniiioiion of grant or denial of
a request for reconsidetalion. The Issuing
officer shall notify the permittee of the
Service's decision within 45 days of the
receipt of the request for reconsider-
ation This notification shall be in
writing, shall sUle the reasons for the
decision, and shall contain a descrip-
tion of the evidence which was relied
upon by the lasuing officer. The notifi-
cation shall also provide information
concerning the right to appeal, the ofB-
clal to whom an appeal may be ad-
dressed, and the procedures tor making
an appeal.
(e) i4ppeal. A person who has received
an adverse decision following submis-
sion of a request foi^ reconsideration
may submit a written appeal to tho Re-
gional Director for the region In which
the Issuing office Is located, or to the
Director for offices which report di-
rectly to the Director. An appeal must
be submitted within 45 days of the date
of the notification of the decision on
the request for reconsideration. The
appeal ahall stale the reason(8) and
issue(a) upon which the appeal Is baaed
and may contain any additional evi-
dence or arguments to support the ap-
peal.
(f) Decision on iippcol. (1) Before a de-
cision Is made concerning the appeal
the appellant may present oral argu-
ments before the Regional Director or
the Director, as appropriate, If such of-
ficial Judges oral argumenU are nec-
essary to clarify Issues raised In the
virrltten record.
(2) The Service shall notify the appel-
lant in writing of Its decision wllhin 45
calendar days of receipt of the appeal,
unless extended for good cause and the
appellant notified of the extension.
(3) The decision of the Regional Di-
rector or the Director shall constitute
the final administrative decision of the
Department of the Interior.
(M FR 38119. Scia, II. 19891
•VI
f S < I t I t I I I S I
1
§13.41
Subpart D—Conditions
113.41 Humane condltlona.
Any live wildlife poaseaaed under a
permit must be maintained under hu-
mane and healthful conditions.
I&4 FR 38150. Sept. 11. 1969)
113.42 Permlta are ejMiclflc.
The authorizations on the face of a
permit which set forth specific times,
datea, places, methods of taking, num-
bers and kinds of wildlife or planta, lo-
cation of activity, authorize certain
clrcumacrlbed transactions, or other-
wlae permit a specifically limited mat-
ter, are to ba strictly construed and
ahall not be Interpreted to permit almi-
lar or related matters outalde the acope
of strict conatruction.
(39 FR 1161. Jan. 4. 1874, as amended at 42 KR
32377, June 34. 1877]
113.43 Alteration of permlta.
Permits shall not be altered, erased,
or mutilated, and any permit which
has been altered, erased, or mutilated
ahall Inunedlataly bacoma Invalid. Un-
less speolflcally permlttsd on the face
thereof, no permit shall ba copied, nor
shall any copy of a permit Issued pur-
suant to this subchapter B be dis-
played, offered for Inspection, or other-
wise used for any offlcial purpose for
which tha permit was Issued.
113.44 Display of permit.
Any parmit lasusd under thia part
shAll he displayed for inspection upon
request to the Director or hia agent, or
to any other person relying upon Ita
exlstencs.
115.45 Filing of reports.
Permittees may be required to file
reports of the activities conducted
under the permit. Any such reporU
shall bs filed not later than March 31
for the precadlng calendar ysar ending
Decsmbsr 31. or any portion thereof,
during whtoh a psrmlt was In fores, un-
less tha rsirulatlons of this aubchapur
B or ths lu-ovlslODS of the permit set
forth other reporting raqulrsments.
I ia.4d Malnlenanca of records.
From the data of Issuance of the iwr-
mit. the permittee shall maintain com-
50 CFR Ch. I (10-1-93 Edition)
plete and accurate records of any tak-
ing, poaseaalon, transportation, sale,
purchase, barter, exportation, or Im-
portation of plants obtained from the
wild (excluding seeds) or wildlife pursu-
ant to auch permit. Such records ahall
be kept current and shall include
names and addresses of persons with
whom any plant obuilited from the wild
(excluding seeds) or wMdlire has been
purchaaed. sold, bartered, ur otherwise
transferred, and the date of such trans-
action, and auch other Information as
may be required or appropriate. Such
records shall be legibly written or re-
producible In English and shall be
maintained for five years from the date
of expiration of the permit.
(39 FR 1161. Jan. 4. 1974. aa amended at 42 PR
32377, June 24. 1877; &4 FR 381M. Sept. 14. 1969)
113.47 Inapectlon requirement.
Any person holding a permit under
this subchapter B ahall allow the Dl-
rector'a agent to enter his premises at
any reasonable hour to inspect any
wildlife or plant held or to inspect,
audit, or copy any permlta, books, or
records required to be kept by regula-
tions of this subchapter B.
(39 FR 1181, Jan. 4. 1074. as amended at 43 PR
32377. June 34. 1977]
113.48 Compliance with conditions of
permit.
Any person holding a permit under
subchapter B and any peraon acting
under authority of such permit must
comply with all conditions of the per-
mit and with all applUcable lawa and
regulstlona governing the permitted
activity.
[H FR 38150. Sept. 14. 19891
113.49 Surrender of permit.
Any person holding a permit under
subchapter B shall Burrender such per-
mit to the Issuing officer upon notifi-
cation that the permit has been sus-
pended or revoked by ths Ssrvlcs. and
all appsal procedures have been sx-
haustsd.
|M PR 88160, Sept. 14. 1869)
113.80 Acceptance of liability.
Any person holding a permit under
subchapter B aaaumca all liability and
U.S. Fish and Wildlife Sorv., Intorloi
reeponalblllty for the conduct of any
activity conducted under the authority
of auch permit.
(H FR 36160. Sept .i. 19691
PART 14-IMPORTATION. EXPOR-
TATION. AND TRANSPORTATION
Of WILDLIFE
Subport A—Inlroduclion
Sec.
H.l Purpose of resulatlona.
11.2 Scope or ragulatlona.
Subpori B-lmportolion and Exportcrtton ol
Deslgnaled Pods
H.U Oenara) reatrlcilona.
11.13 Daalinated porU.
14.13 Emergency diversion.
14.14 In-transltahlpmenu.
14.15 Personal baKage and household er-
facta.
14.18 Border ports.
14.17 Paraonally owned pat blrda.
14.18 Marina mammals.
14.18 Special porU.
14 30 Exceptions by permit-
14.21 Shallflsh and flahery producu.
14.23 CerUin antique artlclea.
Subpart C-Doilgnalod Pod Exceplton
Pemiit
14.31 ParmlU to import or export
nondesignawd port for scientific pur-
I4.32"p"rmiu to Import or export .^^
nondaalgnated port to mlnlmUe deterio-
ration or losa. ,,.„if. .,
II 33 Permlu to Import or export wlldlUa at
noSgnated port to allevlat. undue
economic hardship.
Subpart D-(ll6»»ve<ll
Subpart E-lnspecllon ond Cleoianca ol
WUdUfe
14.61 InspecOonofwIldlirs.
14.62 Clearance of importwlwlidlira.
14 63 Refusal of clearance.
14.64 Unavailability of Service officers.
14.86 Exceptions to claaranca raqulremanu.
Subport F-WMMs DockM08lons
14 81 Import declaration raqulrementa.
14 82 Excaptlooa to Import declaration ra-
qulremeuts.
14 63 Eiport declaration requlreiiienia.
H 64 Exceptions to export dcclaiaLlon re-
qutroinenla.
Pt. 14
Subpart G-lReieivedl
Subpart H-Moridno ol Conialnan ot
Packages
14 81 Marking requirement.
1162 Alternatives and Exceptions to the
marking requirement
Subpart I-Import/Export Uconsos
11 91 License requUemcnt.
11 92 Exceptions to license requirement.
14.93 License appllcftllon procedure, condi-
tions, and duration.
Subpart J-Slandard« lot Ihe Humana ond
Hoaithiul Ifonsport ol Wild Mammals
ond Bird* lo Iho United Slates
11.101 Purposes.
11.102 Definitions.
14.103 Prohibitions.
14.104 Tranalallons.
14.105 Consignment to carrier.
11.106 Primary enclosures.
14.107 Conveyance.
14.106 Food and water.
14.109 Care In transit.
14.110 Terminal (acllltles.
14.111 Handling.
14.112 Other applicable provisions.
SPECIFICATIONS FOR NONHUMAM PftlMATga
14.121 Primary enclosures.
14.122 Food snd water.
14.123 Care In transit.
3PECIPICAT.0H8 FOR MARIHB
(CCTACEAH8. 81HENIAHB. SEA OTTERS.
PINNIPEDS, AHD POLAR DEARS)
14.131 Primary enclosures.
14.132 Food and water.
14.133 Care In transit.
SPECInCATlONS FOR ELEPHANTS ANO
UNUULATEB
14.141 Consignment to carrier.
14.142 Primary encloaurea.
SPECI PIC ATIONS rOB SLOTHS. BATS. AHD
PLYINO LEMuna (CYNOCEPHALIOAE)
14.151 Primary encloaurea.
SPECI PIC ATIONB rOH OTHER TERRESTRIAL
MAMMALS
14.181 Primary enclosures.
SPECIFICATIONS FOR BIRDS
14.111 Consignment to carrier.
14.172 Primary enclosures.
AunioRrrv: 18 U S C «(c>: 18 U.S^C. WIl-
3376 16 1) 8 C, IWacdJ <n. IM«0: 16 U S C.
1362' 16 ll.a.C. 705. 712; 31 0.6 0. 1B3(a).
49
EXHIBITS
CALIFORNIA ENDANGERED SPECIES ACT AND
NATURAL COMMUNITIES CONSERVATION PLANNING ACT
MANAGEMENT AUTHORIZATION
FOR IMPLEMENTATION OF
Habitat Conservation Plan/Ongoing Multi-Species Plan
for the properties in the Southeast Quadrant
of the City of Carlsbad, Califomia
The City of Carlsbad
and
Fieldstone/La Costa Associates
(Tracking No. 2081-1995-014-5)
SUMMARY
The City of Carlsbad (hereinafter "City") and Fieldstone/La Costa Associates (hereinafter
"Fieldstone") (colleciively. "Permittees") have requested an Authorization for Management
("Management Authorization" or "MA") of Endangered Species pursuant to Califomia Fish and
Game Code Sections 2081 and 2835 for the proposed "Habitat Conservation Plan/Ongoing
Multi-Species Plan (hereinafter "HCP/OMSP") for the properties in the Southeast Quadrant of
the City of Carlsbad, Califomia".
The HCP/OMSP will permanently modify approximately 1,252.51 acres, portions of
which are known or potential habitat for sixty-three (63) Species of Concem. Five (5) of these
Species of Concem are presently listed as Endangered Species pursuant to Fish and Game Code
2070 and California Code of Regulations Title 14, Sections 670.2 and 670.5. The "take" of
these "listed" species is prohibited unless authorized by the Department pursuant to Fish and
Game Code Sections 2081.
Pursuant to Sections 2081 and 2835, the Department authorizes Permittees to "take" the
following enumerated species, subject to the terms and conditions of this MA:
Mgim. AiA-IFKUaumtlLa Costa Auocima
Jmu 1, mS/HCP/OMSP. Sat Dugo
Plants
1. Encinitas baccharis {Baccharis vanessae) (endangered)
2. San Diego thorn mint (Acanthomintha ilicifolia) (endangered)
3. Thread-leaved brodiaea (Brodiaea filifolia) (endangered)
4. Ashy spike-moss (Selaginella cinerascens)
5. Blochman's dudleya (Dudleya blochmaniae ssp. blochmaniae)
6. Califomia adder's tongue (Ophioglossum califomicum)
7. Califomia adolphia (Adolphia califomica)
8. Cliff spurge (Euphorbia misera)
9. Coast white lilac (Ceanothus verrucosus)
10. Del Mar manzanita (Arctostaphylos glandulosa ssp. crassifolia)
11. Del Mar Mesa sand aster (Corethrogyne filaginifolia var. linifolia)
12. Engelmann oak (Quercus engelmannii)
13. Nuttall's scmb oak {Quercus dumosa)
14. Orcutt's brodiaea {Brodiaea orcuttii)
15. Orcutt's hazardia (Hazardia orcuttii)
16. Palmer's grapplinghook (Harpagonella palmeri)
17. San Diego ambrosia {Ambrosia pumila)
18. San Diego Coast barrel cacms {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 msh (Juncus acutus ssp. leopoldii)
24. Sticky-leaved liveforever (Dudleya viscida)
25. Summer holly (Comarostaphylis diversifolia ssp. diversifolia)
26. Western dichondra (Dichondra occidentalis)
Invertebrates
27. Dun skipper (Euphyes vestris harbinsoni)
28. Hermes copper (Lycaena hermes)
Amphibians
29. Califomia red-legged frog (Rana aurora draytonii)
30. Westem spadefoot (Scaphiopus hammondii)
Mgim. A^-lFtOdsuimlUi Coaa Asaoama
Jmc I. msmCP/OMSr. Smt Ditto
Exhibit 8.
•Ml
Reptiles
31. Coastal rosy boa (Lichanura trivirgata rosafusca)
32. Coastal westem whiptail (Cnemidophoms tigris multiscutatus)
33. Coast patch-nosed snake (Salvadora hexalepis virgultea)
34. Coronado skink (Eumeces skiltonianus imerparietalis)
35. Northem red diamond rattlesnake (Crotalus ruber ruber)
36. Orange-throated whiptail (Cnemidophorus hyperythms beldingi)
37. San Diego banded gecko (Coleonyx variegatus abbotti)
38. San Diego homed lizard (Phrynosoma coronatum blainvillei)
39. San Diego ringneck snake (Diadophus punctatus similis)
40. Silvery legless lizard (Anniella pulchra pulchra)
41. Southwestern pond mrtle (Clemmys marmorata pallida)
42. Two-striped garter snake (Thamnophis hammondii)
Birds
43. Least Bell's vireo (Vireo bellii pusUlus) (endangered)
44. Southwestem willoiv flycatcher (Empidonax trailU extimus) (endangered)
45. Bell's sage sparrow (Amphispiza belli belli)
46. Burrowing owl (Speotyto cunicularia)
47. Califomia homed lark (Eremophila alpestris actia)
48. Coastai California gnatcatcher (Polioptila califomica califomica)
49. Cooper's hawk (Accipiter cooperi)
50. Loggerhead shrike (Lanius ludovicianus)
51. Northem harrier (Circus cyaneus)
52. San Diego cactus wren (Campylorhynchus brunneicapillus couesi)
53. Southem Califomia mfous-crowned sparrow (Aimophila ruficeps canescens)
54. Tricolored blackbird (Agelaius tricolor)
55. Yellow-breasted chat (Icteria virens)
56. Yellow warbler (Dendroica petechia brewsteri)
Mammals
57. Califomia mastiff bat (Eumops perotis califomicus)
58. Dulzura Califomia pocket mouse (Chaetodipus califomicus femoralis)
59. Northwestem San Diego pocket mouse (Chaetodipus fallax fallax)
60. San Diego black-tailed jackrabbit (Lepus califomicus bennettii)
61. San Diego desert woodrat (Neotoma lepida intermedia)
62. Southem grasshopper mouse (Onychomys torridus ramona)
Mpm. Aw/u/Fuldrnme/U Com Assoaati
Jmm I. I99S/HCP/OMSP. Sam Ditgo
Exhibits.
63. Townsend's westem big-eared bat (Plecotus townsendii townsendii)
The Califomia Department of Fish and Game (hereinafter "Department") has found and
detemiined that the HCP/OMSP, as implemented by the Implementation Agreement (lA) and
this MA, meets the requirements for a Namral Community Conservation Plan (NCCP) for
purposes of the NCCP Act, and specifically for purposes of Califomia Fish and Game Code
Sections 2081 and 2835. The "take" authorization provided by this MA extends to each of the
enumerated species and shall extend to any such species listed pursuant to Fish and Game Code
Sections 2070 or 2074.2 after the effective date of this MA.
The Department has determined that the preservation, conveyance, acquisition, and
long-term management of habitat for the enumerated species will offset the impacts contemplated
by the HCP/OMSP and will result in preserving core areas for the species in order to achieve
sustainable populations. The Department has determined further that the HCP/OMSP will not
result in jeopardy to the continued existence of the enumerated species and may, through the
acquisition of habitat lands, protect the species from further degradation.
PROJECT DESCRIPTION
PROJECT LOCATION
The HCP/OMSP area is located in the City of Carlsbad in northwestem San Diego. The
area consists of two components that together comprise 1,955 acres: Rancheros-Southeast II and
Northwest. All of the HCP/OMSP lands are in private ownership:
Rancheros-Southeast II Subarea. Rancheros-Southeast II includes 1,278.2 acres south of Alga
Road near the City's eastem boundary. It bas three subcomponents: (1) the Rancheros
component of Fieldstone's La Costa Master Plan (347.0 acres); (2) a segment of San Marcos
Creek (85.0 acres); and (3) Southeast II including the Rancho Santa Fe Road realignment (831.2
acres). The 18.7-acre Stanley Mahr Reservoir and 2.7-acre Denk Reservoir within Southeast
n and the water tank area within Rancheros are not part of the Rancheros-Southeast II plan area.
Northwest Subarea. Northwest includes 622 acres that surround the La Costa Country Club Golf
Course north of Alga road and east of El Camino Real.
PROJECT DESCRIPTION
Fieldstone and the City desire to: (1) effect development within the HCP/OMSP area
in phases determined appropriate by respective developers of each portion thereof; and (2)
Mgtm. AuHL/FteldBoim/La Com Astoeimts
June I. I99S/HCP/(MSP. Sm Ditgo
Exhibit 8.
minimize and mitigate the impacts on Species of Concem and their habitats by providing for the
conservation of such species and their habitat.
The development activities contemplated by the HCP/OMSP and lA include (1) urban
facilities, stracmres, and uses, without limitation, (2) residential, commercial, facilities and
infrastmcmre improvements, (3) road and related transportation facilities. Without limiting the
generality of the foregoing, development activities mclude: grading and landscaping, utilities,
communication lines, facilities, pipelines and rights-of-way of 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 strucmres and facilities of every kind
and namre.
HABITAT DESCRIPTION
Six habitat types occur within the HCP/OMSP area: Diegan coastal sage scmb (944.4
acres), southem mixed chaparral (195.2 acres) and southem maritime chaparral (91.2 acres),
non-native grassland (286.6 acres) and native grassland (21.0 acres), riparian scmb and oak
woodland (113.6 acres), dismrbed habitat (187.7 acres), and eucalyptus woodland (6.5 acres).
The Ranchos-Southeast II subarea is surrounded by existmg development of various
densities on all sides except the southeast. It is bisected by the existing Rancho Santa Fe Road,
which generally mns north-south. With the exception of existing roads, powerlines, and water
facilities, the land is vacant.
The Northwest subarea is bordered by residential development on the east and south, by
commercial and residential development on the west, and by agriculmrc on the nortii and
northeast. Excluding the golf course, existing uses are limited to a Fieldstone ranch house,
powerlines, and access roads.
PROJECT IMPACTS
The HCP/OMSP will result in combined pennanent loss of the following habitats:
Diegan coastal sage scmb (505.9 acres), southem mixed/southern maritime chaparral (202.9
acres), native/nonnative grassland (254.1 acres), riparian scmb/oak woodland (75.5 acres), and
dismrbed habitat (148.4).
SPECIES OF CONCERN
Based on biological surveys conducted over a two (2) year period, 36 of the 63 Species
of Concem are known to occur in the HCP/OMSP area; the remaining species are closely
associated with habitats in die HCP/OMSP area and have been treated as potentially occurring.
Mgn*. Amh./Fi€ldsuim/U Com AMaodam
Jmt I, l99S/HCPfOklSP. Sat DtefD
Exhibit 8.
- Regardmg the five (5) listed endangered species; the thread-leaved brodiaea is known to occur
m m the HCP/OMSP area and the Encinitas baccharis, San Diego thommint. Least Bell's vireo
^ and southwestem willow flycatcher potentially occur in the HCP/OMSP area.
A summary of the life history information and HCP/OMSP site specific stams for each
of 63 Species of Concem is provided in the HCP/OMSP.
tm
EFFECTS ON SPECIES OF CONCERN
The enumerated species wUl be subject to direct and indkect adverse impacts and take
^ associated with site constmction, operation, and maintenance in the HCP/OMSP area. The areas
where primary impacts to these species wUl occur encompass 1,186.8 acres which provide
habitat for the species listed above.
^ Adverse effects on listed endangered species in the HCP/OMSP area include the loss of
approximately 17 percent (1,190 mdividuals) of die tiiread-leaved brodiaea plants in die project
area; unquantified habitat for die Encinitas baccharis and San Diego diommim; and less dian one
^ (1) acre of habitat for die Least Bell's vireo and die soudiwestem willow flycatcher.
Anticipated impacts to die five (5) listed endangered species, as well as die 58 odier
^ Species of Concem, are summarized in HCP/OMSP.
" HABITAT MANAGEMENT LANDS
mt
PRESERVATION OF LANDS
- In association widi diis project, die City and Fieldstone shall preserve, acquire, and
^ convey die conserved habitat and offsite conservation lands as detailed in die lA.
mm
mm SPECBFIC CONDITIONS REQUIRED
*" CONSERVATION PROGRAM AND MITIGATION MEASURES
^ 1. All "Conservation Program and Mitigation Measures", as detailed in die HCP/OMSP,
shall be implemented by die City and Fieldstone, as specified in die corresponding lA between
mm die Department, die Service, die City, and Fieldstone.
Mfmr. AyOL/FuUmnt/la Com Assedma
Jme I. l99SmCP/(»ISr. San Dugo
Exhibit 8.
2. The term of diis MA shall commence on die date diat the lA is executed by die last of
die panies diereto and shall terminate 30 years from that date. This period is subject to earlier
terminauon pursuant to provisions of the lA.
DISCLAIMER
3. Upon timely satisfaction of die conditions of diis MA. The City and Fieldstone will have
adequately mitigated impacts to endangered species and achieved compliance with the Califomia
Endangered Species Act widi regard to die project. Nonedieless, The City and Fieldstone
understand and recognize diat diis MA does not constimte or imply compliance widi, or
entidement to proceed widi die project, under laws and regulations beyond die authority and
jurisdiction of die Department. The City and Fieldstone have independem responsibility for
compliance with any and all applicable laws and regulations.
4. FoUowing execution of die HCP/OMSP and issuance by die Department of diis MA, die
City's and Fieldstone's decision whether or not to proceed widi said project shall be voluntary,
and subject to all odier pertinent law and regulations. As such, die City and Fieldstone wdl hold
die State of Califomia and die Department of Fish and Game harmless, in any violation of die
law, lien, suit, or claim of injury or damage which may result from any aspect of die project,
including fiilfiUmem of die obligations under diis MA and die Califomia Endangered Species
Act/Federal Endangered Species Act lA.
DEPARTMENT FINDINGS
SPECIES OF CONCERN
The Department has found and determined diat die HCP/OMSP, as implemented by die
lA and diis MA, meet die requirements for an NCCP for purposes of die NCCP Act. and
specifically for purposes of Califomia Fish and Game Code Sections 2081 and 2835. In diis
regard, die Department has found and determined diat if die terms conditions of diis MA are
complied with, die taking of die enumerated species, including die modification of dieir habitat,
as contemplated by die HCP/OMSP, die lA. and diis MA, will not result in jeopardy to dieir
continued existence and may, duwugh die preservation, acquisition, and conveyance of the
Conserved Habitat and die Offsite Conservation Lands, protect die species from fimher
degradation. The HCP/OMSP and die lA, to die extent practicable, minimize and mitigate the
impacts of die taking of the enumerated species (including, without limitation, die modification
of dieir habiut). The Deparmient has considered die Initial Study prepared by die City
regarding die issuance of diis MA and execution of the lA amending diis MA allowing die
Project and Plan activities to proceed as contemplated by die HCP/OMSP.
.Mpm. AmiL/FitUmme/La Com Attoama
Jwm I. I99S/HCP/OMSF. San Diego
Exhibit 8.
7
OTHER SPECIES
In die event diat a species not enumerated in diis MA is listed as endangered or
dueatened pursuam Fish and Game Code Section 2070, or is a candidate for such listing
pursuam to Fish and Game Code Section 2074.2, die Department shaU consider, and if
appropriate, expeditiously act to negotiate and execute, an MOU widi die City and Fieldstone
providing for die managemem of die species in order diat die Project and die Plan Activities may
proceed in accordance with CESA.
In determining whedier any furdier mitigation measures arc required to amend diis MA
to include an additional species, die Department shaU: (1) take mto consideration diat Fieldstone
and die City have minimized and mitigated die impacts to the species enumerated in this MA
widiin die Plan Area to die maximum extern practicable; and. (2) cooperate widi Fieldstone and
die City in good faidi to minimize, consistent widi CESA, aity inq)ediment to die Piojea's
completion resulting from die listing of a species not enumerated in diis MA.
CALIFORNU DEPARTMENT
OF nSH AND GAME
TITLE
DATED
f4fm. AmH./FmUmxm/U Com Amoemm
Jmm I. /m/tfCP/OMSP. Sam Ditto
Exhibit 8.
8