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BCRUA_R-09-06-15-4A RESOLUTION NO. R-09- qA WHEREAS, the Brushy Creek Regional Utility Authority (BCRUA) desires to enter into an Agreement with Balcones Canyonland Coordinating Committee to receive endangered species habitat mitigation participation rights, Now Therefore BE IT RESOLVED BY THE BRUSHY CREEK REGIONAL UTILITY AUTHORITY, That the Board President is hereby authorized and directed to execute on behalf of the BCRUA an Agreement with Balcones Canyonland Coordinating Committee, a copy of same being attached hereto as Exhibit "All and incorporated herein for all purposes . The Board hereby finds and declares that written notice of the date, hour, place and subject of the meeting at which this Resolution was adopted was posted and that such meeting was open to the public as required by law at all times during which this Resolution and the subject matter hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act, Chapter 551, Texas Government Code, as amended. RESOLVED this 15th day of June, 2009 . MI CH FULLER, resident Br h Regional Utility Authority A ES B rd Secretary C:\Doc—encu and Set t.nge\madams.CORA\Local Settinga\Temporary Internet ei2e9\0LK1C0\Ree 9CRUA -Agreement w-9alconee Canyonland (00163218)-DOC/— COUNTY OF TRAVIS § COFV STATE OF TEXAS § RECITALS -The Balcones Canyonlands region of Central Texas is home to several species of animals and plants listed as endangered under the federal Endangered Species Act of 1973, as amended, 16 U.S.C. § 1531, et seq. (the "Act"). Development of endangered species habitat in the region is subject to approval under the Act. To provide an alternative to the burden of each landowner or developer going through an individual 10(a) permit application process, a group of individuals representing federal, state, and local governments, the private business sector, private landowners, and environmental interests, worked since 1988 to create a regional habitat conservation plan, in accordance with Section 10(a)of the Act. In order to implement the habitat conservation plan, known as the Balcones Canyonlands Conservation Plan (BCCP) - Shared Vision, Travis County and the City of Austin applied for a regional permit under section 10(a)l(b) of the Act. The United States Fish and Wildlife Service ("USFWS") issued the regional permit, permit number PRT-788841 (the"Permit"), to the Permit Holders on May 2, 1996. In exchange for committing to the completion of a 30,428 acre preserve system that satisfies the requirements of the Permit, the Permit Holders are authorized to assign certain habitat mitigation participation rights (hereinafter referred to as "Participation Rights") to individual landowners or developers ("Participants")for a fee to be used as purchase money for completion of the preserve system. Through participation in the BCCP-Shared Vision, Participants can mitigate for direct and indirect"take" of the species covered in the Permit, in accordance with the special terms and conditions of the Permit. AGREEMENT This agreement is entered into this �p day of-J Aq , 2009, by and between Brushy Creek Regional Utility Authority, a non-profit municipal corporation created under Subchapter D of Chapter 431,Texas Transportation Code, J. Chris Lippe, General Manager (BCCP # 0629), hereinafter referred to as "Participant" or "Assignee", and the Balcones Canyonlands Coordinating Committee, an entity created pursuant to Section 791.013 of the Texas Government Code, as an instrumentality of the parties to the Interlocal Cooperation Agreement between Travis County and the City of Austin Implementing the Balcones Canyonlands Conservation Plan - Shared Vision, dated the 3rd day of August, 1995, acting by and through its designated representative,hereinafter referred to as"Permit Holders"or"Assignor". For and in consideration of the mutual covenants and considerations cited herein, Permit Holders and Participant hereby agree with respect to the assignment of certain Participation Rights as provided by the Permit to be furnished or rendered by the Permit Holders to the Participant and the payment for this assignment by the Participant to the Permit Holders as set forth hereinafter. 1 ARTICLE I. PROPERTY Participant is the owner of tracts of land consisting of approximately 52.51 acres situated in Travis County, Texas, and more fully described in Exhibit"A"attached hereto("Property"). ARTICLE II. ASSIGNMENT OF PARTICIPATION RIGHTS Upon payment by the Participant of the compensation as provided in ARTICLE III below, the Permit Holders agree to assign unto Participant certain Participation Rights for the exclusive use and benefit of the Property. These Participation Rights are assigned to the Participant for its use and benefit only with respect to the Property and in connection with the issuance of the Permit for the Balcones Canyonlands Conservation Plan (`BCCP-Shared Vision") pursuant to Section 10(a)(1)(B) of the Endangered Species Act, 16 U.S.C. § 1531 et seq. ("ESA"). The term "Participation Rights" shall mean and refer to any and all benefits, rights, credits, offsets or other privileges or entitlements which may be utilized by Participants in conjunction with the BCCP-Shared Vision Permit relating to the incidental "take", existence, dedication, conservation, maintenance or preservation of the following endangered species: black-capped vireo (Vireo atricapillus), golden-cheeked warbler (Dendroica chrysoparia), Tooth Cave pseudoscorpion (Tartarocreagris texana), Tooth Cave spider (Neoleptoneta myopica), Tooth Cave ground beetle (Rhadine persephone), Kretschmarr Cave mold beetle (Texamaurops reddelli), Bone Cave harvestman (Texella reyesi), and Bee Creek Cave harvestman (Texella redelli), and the Species of Concern described in the Permit. This assignment is expressly made subject to the provisions and requirements of the Endangered Species Act of 1973, as amended, 16 U.S.C. § 1531, et seq.; Title 50 of the Code of Federal Regulations, including Parts 13, 17, and 21; the Permit; and the BCCP-Shared Vision as provided by the Permit and including the conditions and requirements provided in the Habitat Conservation Plan and Final Environmental Impact Statement,dated March, 1996. ARTICLE III. COMPENSATION For and in consideration of its assignment of these Participation Rights, the Participant shall pay to the Permit Holders the total sum of $123,900.00. Payment of this sum is to be paid immediately upon execution of this Agreement by the Participant and the Permit Holders. ARTICLE IV. ADDITIONAL RESPONSIBILITIES OF PARTICIPANT; SPECIAL TERMS For and in consideration of the assignment of Participation Rights, the Participant agrees that it shall comply with all requirements of the Endangered Species Act of 1973, as amended, 16 U.S.C. § 1531, et seq.; Title 50 of the Code of Federal Regulations, Parts 13, 17, and 21; the BCCP-Shared Vision as provided by the Permit and including the relevant requirements under the Habitat Conservation Plan and Final Environmental Impact Statement, dated March, 1996; and all terms and conditions of this 2 agreement, specifically including those special conditions provided in Exhibit `B" and Exhibit "C", attached hereto and incorporated herein for all purposes. Furthermore, the Participant promises and warrants to the Permit Holders that it has not petitioned nor received from the USFWS any determination of incidental take in relation to the Property, including receipt of a valid Section 9 letter indicating USFWS determination of "no effect", that it has not previously delivered to the Permit Holders. ARTICLE V. BREACH OF PARTICIPANT Breach of the terms of this Agreement will result in the termination by the Permit Holders of this Agreement and the Participation Rights assigned therein. Notification of breach and termination of rights shall be made by the Permit Holders to the Participant in writing at the address provided in ARTICLE XII below. ARTICLE VI. PARTICIPANT'S SOLE RECOURSE FOR BREACH BY THE PERMIT HOLDERS In the event that the assignment of Participation Rights pursuant to this agreement is ineffective or deficient with respect to the Property due solely, or in part, to the actions or inactions of the Permit Holders, Participant agrees that its sole recourse shall be to sue to recover from the Balcones Canyonlands Coordinating Committee damages in an amount not to exceed the total sum provided in ARTICLE III above, upon surrender of the Participation Rights by Participant to the Permit Holders. Notwithstanding anything to the contrary herein, the Balcones Canyonlands Coordinating Committee, the City of Austin, and Travis County shall not be responsible to, nor liable to, Participant for any damages resulting from any rules, regulations, action(s), or inaction(s) by the U.S. Department of the Interior and/or the U.S. Fish and Wildlife Service promulgated on or after the date of this assignment that would in any way impair or render ineffective, either partially or in its entirety, any or all benefits to the Participant's Property that accompany the assignment of the Participation Rights herein. ARTICLE VII. COVENANTS RUN WITH THE LAND;RECORDATION Participant agrees that promises and covenants provided herein are intended to be binding upon any heirs, successors, and assigns in interest to the Property. Upon any transfer of any ownership rights to all or part of the Property, this Agreement shall not terminate as to the particular property transferred, but rather shall continue in full force and effect and shall be fully binding upon any heirs, successors, and assigns in interest to the Property, or any portion thereof. Upon execution of this agreement by Permit Holders and Participant, this agreement shall be acknowledged and recorded in the Real Property Records of Travis County. 3 ARTICLE VIII. VENUE AND CHOICE OF LAW The obligations and undertakings of each of the parties to this Agreement shall be performable in Travis County, Texas, and this Agreement shall be governed by and construed in accordance with the laws of the State of Texas. ARTICLE IX. ENTIRETY OF AGREEMENT AND MODIFICATION This instrument contains the entire agreement between the parties relating to the rights herein granted and the obligations herein assumed. Any prior agreements, promises, negotiations, or representations not expressly set forth in this Agreement are of no force of effect. Any oral representations or modifications concerning this Agreement shall be of no force or effect, excepting a subsequent modification in writing signed by the party to be charged and expressly approved by an authorized representative of such party. No official, representative, employee, or agent of the City of Austin, Travis County, or the Permit Holders has any authority to modify or amend this Agreement except pursuant to specific authority to do so granted by the Balcones Canyonlands Coordinating Committee. ARTICLE X. NON-ASSIGNMENT OF RIGHTS Participant shall not sell, transfer or assign all or any part of the Participation Rights to a party other than a successive owner of all or a portion of the Property, without the prior written consent of the Permit Holders, and any transfer of the Participation Rights, except to a successive owner of all or a portion of the Property, without the Permit Holders' consent shall be null and void. Furthermore, no assignment of this Agreement or of any right accruing hereunder, except an assignment to a successive owner of all or a portion of the Property, shall be made in whole or in part by Participant without the prior written consent of the Permit Holders. ARTICLE XI. SUCCESSORS AND ASSIGNS This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the respective parties hereto, where authorized pursuant to this Agreement. 4 ARTICLE XII. NOTICE Any notice to be given hereunder by either party to the other shall be in writing and may be effected by personal delivery in writing, or registered or certified mail, return receipt requested, when mailed to the proper party,at the following addresses: PARTICIPANT: J. Chris Lippe General Manager Brushy Creek Regional Utility Authority 221 East Main Street Round Rock,Texas 78664 PERMIT HOLDERS: Honorable Lee Leffingwell (or his successor) City of Austin Councilmember Chair of the Balcones Canyonlands Coordinating Committee P.O. Box 1088 Austin, Texas 78767 Attn: BCCP Application#0629 with a copy to: William Conrad(or his successor) Secretary of the Balcones Canyonlands Coordinating Committee P.O. Box 1088 Austin, Texas 78767 Attn: BCCP Application# 0616 and with additional copies to: Honorable David Escamilla(or his successor) Travis County Attorney P.O. Box 1748 Austin, Texas 78767 Attn: BCCP Application File No. 0616 and: City of Austin Department of Law P.O. Box 1088 Austin, Texas 78767 Each party may change the address for notice to it by giving notice of such change in accordance with the provisions of this paragraph. 5 ARTICLE XIII. TERM OF AGREEMENT This Agreement shall terminate upon the expiration or termination of the Permit, or on May 2, 2026, whichever is sooner. ARTICLE XIV. HEADINGS The headings at the beginning of the various provisions of this Agreement have been included only in order to make it easier to locate the subject covered by each provision and are not to be used in construing this Agreement. ARTICLE XV. NUMBER AND GENDER DEFINED As used in this Agreement, whenever the context so indicates, the masculine, feminine, or neuter gender and the singular or plural number shall each be deemed to include the others. ARTICLE XVI. MULTIPLE COUNTERPARTS This Agreement may be executed in multiple counterparts each of which shall constitute a duplicate original hereof,but all of which together shall constitute one and the same instrument. ARTICLE XVII. TIME OF ESSENCE Time is of the essence in the Agreement. EXECUTED AS OF THE LAST DAY SET FORTH BELOW. PERMIT HOLDERS: PARTICIPANT: By: By: Rose M. Farmer Chris Lippe Travis County Natural Resources Program Manager eneral Manager Balcones Canyonlands Conservation Plan Brushy Creek Regional Utility Authority Date: Date: 15—— '7 6 ACKNOWLEDGEMENTS PARTICIPANTS: This instrument was acknowledged before me by J. Chris Lippe on this the L h day of��'L�� 2009. _ Notary Public in d for a State of Texas MM 11 ( �. MAY45 Printed Name of Notary ",""''• MONIQUE G.ADAMS 11 I I �= My COMMISSION EXPIRES Sgpbar19,�11 My Commission Expires: PERMIT HOLDERS: This instrument was acknowledged before me by Rose M. Farmer on this the,th day of 2009. Notary Public in and for the State of Texas Printed Name of Notary My Commission Expires: 7 EXHIBIT"A" Description of Land to be Benefited by Participation Rights 52.51 acres Consisting of Tax Parcel ID #s 487024, 513819, 513820, and 513821 known as the Brushy Creek Regional Utility Authority Water Treatment Plant, BCCP Infrastructure Application # 0629 as described in attached letter from the City of Austin dated 20 October 2008. 8 1.' RECEIVED x JUN o 1 7009 TNR October 20,2008 Sam Roberts Cedar Park Assistant City Manager Brushy Creels Regional Water Authority,Inc: 221 Bast Main,Strect Rid�,'T'exas'786Ka Re:BCRUA Regional Water Treatment Plant Dear Mr.Roberts: Thank you for your application on behalf of Brushy Creek Rkgional Water Authority,Inc. regarding the proposed BCRUA Water Treatment Plant.The site location provided.on the BCCP application is as follows; FM 1431 and Hur Industrial Blvd.,Tax Parcel ID#'s 51381.9, 513820, 513821,and 487024. The project site lies outside the preserve acquisition boundary for the Balcones Canyonlands Preserve.Based upon a:review of the project plans submitted with the application,this project is eligible to,participate in the regional Balcones Canyonlands:Section 10(a)permit.Participation. under the BCCP permit will cover incidental take of endangered species habitat,particularly golden-cheeked warbler(GCW)habitat:that the project might impact. The project,as described in the application,will include clearing of vegetation. Based on current BCCP habitat Pee Zone lvlaps,this project impacts approximately 21.45 acres of Zone Land 57 acres of Zone 2 GCW habitat.It also impacts an additional 3.94 acres of Karst Zone 2,which lies outd,a ofthe Zone 1 and Zoat 2 GCW':habttat The habitat mitigation requirements for this project and site are 21.5 acres of Zone 1 GCW habitat, :5 acres of Zone 2 GMV habitat,and 4.0 acres of Karst Zone 2 habitat. All mitigation acreages for infrastructure project are rounded to the next 0:1 acre increment under the calculation procedures approved by the.Balcones Canyonlands Coordinating Committee.The current fees are as follows: Zone 1 Habitat mit gation.is$5100/acre,Zone 2 Habitat mitigation is $2750/acre,and Karst Habitat mitigation is$10001acre. At current Balcones Canyonlands Conservation Plan(BCCP)participation rates,coverage for this project would.amount to $123,900,payable to the BCCP: These mitigation fees are used to purchase additional habitat lands within the Balcones Canyonlands Preserve for the long-term protection of the listed endangered species and other species of concern. This work will be conducted it high quality golden-cheeked warbler habitat;therefore every effort needs to be made to protect the native:trees in this.area, Live Oaks and Spanish Oaks are present in that area and are highly susceptible to infection with Oak Wilt. Since this disease is becoming increasingly problematic in the BCP,please make every effort to help prevent the further spread of this disease by ensuring this work is conducted in accordance with the attached City of Austin Oak Wilt Prevention Policy. I am passing this habitat assessment along to Travis County for preparation of a participation certificate. Travis County will provide the necessary participation agreements for your signature and issue the certificate upon receipt of the participation fee. Your contact for this phase of the application process is Jennifer Brown,Travis County Transportation and Natural Resources,at 8547215. This application has been discussed with Barry Allison and Robin Greffe,at which time they shared their concern that this project requires£ewer mitigation acres based on-field observations. If this is the case,please contact the U.S.Fish and Wildlife Service to have them make the final det rrntnat on regarding.mitigation requirements. If you have any further questions regarding this assessment or encounter any problems,please feel free to call me at(512)263-6430. Sinc l , William A. Conrad BCCP Secretary Wildiand Conservation Enclosure cc: File#ACI 08-021 Rose Farmer,'Travis County Adam.Zerrenner,USFWS EXHIBIT"B" Single Family Lot Special Provisions Certificate; Special Terms and Conditions None apply. 9 Exhibit "C" BCCP Permit jointly held by the City of Austin and Travis County CxIif13IT "C" \cicliticlnal Rc(juircntcnts of Vni-ticip-int 3-101 DEPARTI-IEIIT OF Tllr Itt'LGRIOR ( 10/86) U .S . FIB❑ mm NILDLIFG 8BRVICL 7 l.UTRORliY-fi7ATV-TL8 I I 16 USC 1539 ( x) ( 1 ) (P.) FEDERAL, FIF3H AND WILDLIFE PMtI'T RE0ULAT 1ON5 (Attxchacl) 50 CFR S 13 G 17 3NU t(3 ER FRT-788841 1 . PERL4ITTEE FRF-NrW,'l-1I_.L 5 . Ha1Y COPY CITY OF AUSTIII P.O. BOX 1OB9'+ 5TIN, TEXAS :8757 NO TRAVIS COUNTY P.O. BOX 1740 6 . EFFECTIVE 7 . F.:PIPLS AUSTIII, TEY.J�S 79757 1 t'n'T 2, I99s ►L\Y 2 , 2026 s . NAxZ A4D TITZ.G Of PRINCIPAL OY;1CLR 9 . TYPE OF PERMIT (if I 1 is a busineus) BRUCE TODD, MAYOR, CITY OF AUSTIN ENDANGERED SPECIES BILL ALESHIRE, COMITY JUDGE, TRAVIS COUNTY 10. LOCATION MIIF.RZ AUTHORIZED ACTIVITY )4AY BE CONDUCTED TPi1VIS COUNTY, TEXAS OUTSIDE OF T11E PP.ESERVES IDENTIFIED III T11E NAB_TAT COUSERVATION PL-A:7 A14D FI?IV. Ztf IRONNENTAL IKPACT STATER-FENT DATED KARCH 1996 11. CONDITIONS I1ND AUTIIORI IATIONS t SEE SPECIAL. CONDITIONS A THROUGH P ON ATTACHED PAGES 2 THROUGH 11 . 11 . RL.PORTINO RLQUIR-E)+_'KT9 REPORTS WILL BE PROVIDED TO THE U.S. FISH AND WILDLIFE SERVICE OFFICES APPEARING IN CONDITION G OF THIS PEP4IT. REPORTING FORMAT ARD CONTENT IS OU,LIttED IN CONDITIOtI G O THIS PEP.4IT. ISSUED BYi TITLE, DATE �+ R.EG IOtIAL DIRECTOR, RFC f OtI 2 HAY 2 , 1996 CITE' OF AUSTIN b TRAVIS C01RgTY PEPd.IT PRT- 7886; 1 A. if during the tenure of this per-mit , the amount of incidental take is exceeded , issuance of Participation Certificates must be stopped and the permittees must re- initiate consultation with the USFFIS to avoid violation: of section 9 , Endangered Species Act. B. IAcceptance of this permit serves as evidence that the permittees understand and agree to abide by the terms of this permit and all sections of Title 50 Code of Federal Regulations Parts 13 , 17 , and 21 (attached) pertinent to issued permits . C. The authorization granted by this permit is subject to compliance with , and implementation of , the terms and conditions of the Environmental impact Statement/Habitat Conservation Plan, Biological opinion, and all specific conditions contained in this permit. If there are any d-SC`erancies bet'.+Een the recP,ir ements in t.-.ese documents , .-ne regui-.-enents identif '_ed In the special co;lLltions cf t:-.iS _ISSUEd pEri,=t ta 'e preCedenCe . D. Upon locating any dE ,-2, injured, or s?C:: ?n•.!i viduals frO=; the list of animal species covered by t`•; s any other endangered or threatened animal species, perittees are required to contact the U.S. Fish and Wildlife Service 's Law Enforcement Office, Austin, Texas ( 512 ) 490-0946 , mor care and disposition instructions. Extreme care should be taken in handling sic}. or injured individuals to ensure effective and proper treatment. Care should also be taken in handling dead specimens to preserve biological materials in the best possible state for analysis of cause of death . In conjunction with the care of sick or injured endangered/threatened species , or preservation of biological materials from a dead specimen, the permittees and their contractor (s) or subcontractor (s) have the responsibility to ensure that evidence intrinsic to the specimen is not unnecessarily disturbed. E. The validity of this permit is also conditioned upon observance of all relevant international , state , local , or other Federal law. F. The per are authorized to "take" (kill , harm, or harass) the following federally-listed endangered species : 3 Vireo of-i copi'71us B�a };-upped ec Dendreica Chrys---)pa--1a Golden-cheel:ed :garbler Tel tarOC-c'i7gri5 te,xan.n Tooth Cave pseudoscerplon NE,oleptoneta myopics Tooth Cave spider Texella reddelli Bee Creek Cave harvestman Texella ro}'psi Bone Cave harvestman Phadine porsephone Tooth Cave ground beetle Texamaurops reddelli Kretschmarr Cave mold beetle Additionally, the per-mittees would be covered for incidental take of the following species of concern if these species become listed during the life of the permit and the mitigation measures identified in this permit are being performed . Pthiladelphus ernestii Canyon Hock-orange Croton alabamensis Texabama croton Sahelloplana Wonri Flatwory Csndon3 sp. r:r. stagnalis 0stracod Caec,do��a redd . 1 i 1sop GCj Trichoniscinae ?;. S . 7 _.opcd !'!1}:tOP..iSCL'S 1+ . S . .sop of Cicurina wa-rtoni Spider C . ellioti Spider C . bandida Spider C . reddelli Spider C. reyesi Spider C . cuova Spider C . travisae Spider Neoleptoneta cocinna Spider Neoloptoneta devia Spider Eidmanella reclusa S npider Aphrestochthon.ius N . S . Pseudoscorpion Tartarocreagris roddelli Pseudoscorpion T. intermedia Pseudoscorpion T. N. S. 3 Pseudoscorpion Texella spinoperca Harvestman T. comanche New Comanche Trail Cave harvestman Srpeodesn' us N. S . Millepede Rhadine s . subterranea Ground beetle F . s . mitchelli Ground beetle R . austinica Ground beetle G . A.n annual report, due June 1 of each year beginning in 19971 is to be provided to the Austin Ecological Services Field Office . This report is to include : 4 1 , a list of all development activities. 4es c.f the Nu^;;C P.ailroad that ere per ruitted by the Per-mit HoIdnrs .r. ILhe previous 12 months , 2 . a list c all tractE for which Partici_)a Certificates were purchased , 3 . amount of funds collected for land acc-usition, 4 . amount of funds expended for land acquisition;, 5 . amount of funds e:rended for operations and maintenance . 6 . an updated map of the lands dedicated to preserve management , 7 . a list of public use and habitat management activities that have been undertaken or completed within the bounds of the preserve units , including the status of land mana-_,eLe%t plans underta1:en the p_ it holders and ;Janaging partners , an-1 e 3 cc G_r all I'EC.=a_"C:7 Ci i_nVe_,t'Gt10;1 r - _E,o>-�s tri3t have been prepared within. the previous 1- montwhl s . In addition to the above annual requirements, the Permit Holders must provide quarterly updates for the tracts for which Participation Certificates were purchased that include the following information: 1 . a general map of each tract location and 2 . a tract boundary map that identifies the areas for which the Participation Certificate applies. If a location and/or tract map is not provided to the Permit Holder during the normal permitting process , a street address will meet this requirement . H. A copy of a recorded Participation Certificate provided by the Permit Holders must be posted at the property site from the time vegetation clearing begins until the construction is completed . For residential development, completed construction is when all roads and utilities are completed to the extent that they meet the applicable acceptance criteria of the City of Austin or Travis County. For commercial , industrial and multi-family developments completed construction is when buildings are suitable for occupancy . 5 I . The funds collected and e.-pended for this Pc mit and compliance with the financial requirements of the Permit shall be evaluated by financial audits conducted after the sale of Participation Certificates ccvering 3 , 000 fee-pai.d acres or every five years , whichever comes sooner, until permit e>:pirat ion. Such audits wi;.1 be coordinated between the USFWS and the Coordinating Committee . This audit may be part of the per-mittees audit processes as required by State law and shall not be more frequent than every two years . J. The funds collected under this Permit will be e}ended for land or easement acquisition and other preserve system needs in accordance with the following criteria : 1 . traots considered for acquisition will be within or contiguous to the boundaries of the preserve units identified in the issued Permit; 2 . ex-penditure priority should be in the following decreasing order : Bull Creel_ , Cypress Creek , South Lake ,.u`_;tln, and 1iGrLh 1-al" �.l?titin; and 3 . d` snensin7 of funds from th_ BCCP i nd account should c _ r) be accomplished z_ soc:� ..�._� she; � are complete a transaction or _ripleme-'t a Ft_—ategy fo_ acquisition , taking into account opportunity, preserve priority and development threat. K. The Permit }folders will administer the issuance of the Participation Certificates . L. Incidental tole that may result from the implementation of land management activities within the boundaries of a preserve and contained in a management plan approved by the Coordinating Committee , are covered and authorized under this Permit. H. Incidental tale that may result from the implementation of utility and infrastructure corridor projects approved by the Secretary of the Coordinating Committee and within one of the BCCP-Shared vision approved utility and infrastructure corridors ,. as provided in the final EIS/HCP, Appendix B, is covered and authorized under this Per-mit . 11. Incidental take of the Barton Springs salamander is not covered by this Permit . Entities who purchase Participation Certificates for activities within the Travis County portion of the Barton Springs watershed should obtain guidance with respect to avoiding the impacts of their activities on water quality as they relate to the Barton Springs salamander . E• G. The incidental take authorization of this pe-r' t does not apply to the "tak.e " of any endangered or threatened Esaecies outside of the boundary of the permit as identified in the ETS/HCP dated Harch 1996 or any modifications/amendments to that boundary. P. The "No surprises" policy of the U. S . Fish and Wildlife Service provides that additional mitigation , lands or financial compensation shall not be required of the permittees or their successors beyond the level of mitigation provided for in the EIS/11CP. With respect to this permit, the EIS/HCP and supporting documents adequately addressed the species listed in special condition E above . To be fully covered by the "iso Surprises" policy for a specific species , all of the requirements identified for that species must be met . GOLDEN-CHEEKED WA125LEP.: 1 . Ensure at least 28 , 428 acres within the seven identified macresites will be acq-jirec and �anL7e-' for the golden-cheekec' warbler during the permit duration . r,cquisition ar.:? management activities through _this Permit, other issued incidental take pP_zits , and section 7 consultations where the mitigation, act ! ities are within or contiguous to the proposed preserve boundaries , count toward this goal . . in conjunction Witt: the managing partners , control human activities to eliminate or mitigate any adverse impacts of human activities to the warbler on .these 28 , 428 acres , for the acreage acquired . 3 . No vegetation clearing activities will be accomplished within golden-cheeked warbler habitat, Zones 1 and 2 , from March 1 through August 31 to prevent the disturbance of nesting activities unless current breeding season surveys, conducted in accordance with Fish and Wildlife Service protocol , indicate that the warbler is not nesting within 300 feet of the proposed clearing. 4 . Develop and implement an approved land management plan, , in accordance with the land management guidelines set forth by the Coordinating Committee , for each tract within 12 months after per-mit issuance or within 12 months of land acgt:isition whichever is later . 7 BLACK-CAPPED VIrEO 1 . Ensure at least 2 , 000 acre_ within the seven identified macrosites will be acquired and managed for the }.lack- canped vireo during the permit duration. Acquisition and management activities through th-Ju Permit , other issued incidental take pe:-mits, and section 7 consultations where the mitigation activities are within or contiguous to the proposed preserve boundaries, count toward this goal . 2 . In conjunction wit:; the managing partners , control human activities to eliminate or mitigate any adverse impacts of human activities to the vireo on 4" 2 , 000 acres , for the acreage acquired . 3 . tlo vegetation clearing activities will be accomplished within black-capped vireo habitat between March 1 and August 31 to prevent the destruction of an active nest unless current bree6ing season surveys, conducted in accordance with f ish and 14i- dIif2 Service o o.oco1 indicate thati hc.- vireo is not nesting within 300 f ��t cf the propos=•' clr-L:r?ng . 4 . Develop and lmple-::)e t an approved land manage :ent pian, in accordance with the land management guidelines set forth by the Coordinating Committee , for each tract within 12 months after permit issuance or within 12 months of land acquisition whichever is later . LIS-LED KsYST IMJERTEBP..r'.TES 1 . Acquire and manage , or -implement formal management agreements, as provided in subsection (4 ) below, ademjate to preserve the environmental integrity of the following 35 caves that support federally-listed karst invertebrates : Amber Cave Kretschmarr Double Fit Bandit Cave Kretschmarr Cave Beard Ranch Cave Lamm Cave Bee Creek Cave. Little Bee Creek Cave Broken brow Cave hi. W . P, . Cave Cave Y McDonald Cave Cold Cave HcNeil Bat' Cave Cotterell Cave New Comanche Trail Cave Disbelievers Cave No Rent Cave Eluvial Cave North Root Cave ,ossil Cave Rolling Roc}, Cave Fossil Garden Cave Root Cave Gallifer Cave Spider Cave fid e-In-The-RoEid Stovepipe Cave 8. Japygid Cave Tardus Hole Jest John Cave Tooth Cave Jester Estates Cave Weldon Cave Jo1ly.ille Plateau Cave If during investigations for development of a tract , karst features are discovered with a significant diversity of troglobitic fauna , those karst features bay be submitted to the U5545 for consideration for exchange with karst features identified for protection by the BCCP. The determinati on of "sig::!f i cant diversity" will be Made by the permit applicants and the USFWS, in association with karst experts . . The inclusion of such a Y.a_-st feature would not increase the number of caves to be protected by the BCCP, but would result in the nes; feature replacing a previously identified cave or caves . 3 . Where the surface and subsurface hydrecgeelogic Brea around a cave identified for protection is not kno,--n , tine area delineated by the contour level at the butt or. cf the cave will be managed for c>ve protectio:i . •.n;.:.� absenc of such site soaCiri. s 1„101--zt 1 on, no , Participation Cert' f_.-aces are to be awarded w h,,_n 0. 25 miles of the cave entrance until th4 hvi- rogec-loais areas are properly delineated . 4 . Ente_ into formal management agreement,- ( s) for all caves that are recommended for protection but have yet to be acquired. The management agreement (s) will detail the area to be managed for cave protection, what such management will entail , and who is responsible for the management . KAP,ST SPECIES OF CONCER1i 1 . Acquire andmanage, or implement formal management- agreements , anagementagreements , as provided in subsection ( 4 ) below, adequate to preserve the environmental integrity of the following 27 caves , in addition to the caves protected for the federally-listed species, that support the karst species of concern : Adobe Springs Cave Jack ' s Joint Airman ' s Cave Lost Oasis Cave Armadillo Ranch Sink Lost Gold Cave Arrow Cave Maple Run Cave Blowing Sink, Midnight Cave Buda boulder Spring Moss Pit Cave X Pennie Cave Ceiling slot Cave Pickle Pit District Park Cave Pipeline Cave 9 T lint P..idge Cave Slaughter Creep; Cave Get Down Cave Spanish Wells Cave Goat Cave Stark ' s North }tine Ireland ' s Cave Tains Spring Whirlpool Cave .he caves in which the karst species of concern occur a-re listed below. To receive the "no surprises" guarantee for the identified species, the caves identified must be protected , as per "1" above . SPX,c7F.5 C?: E Sphalloplar,a mohri Spanish Wells Cave Candona sp. nr . stagnalis Cave X Caecidotee reddelli Buda Boulder Cave , Cave ,_; , Jack ' s Joint Trichor,iscinae H. S . Bandit Cave Hiktoniscus N. S . Cave X Cicurina w•artoni Pickle Pit C. E:?_� ic.ti Cotterell Cave, Fossil Garden Cave , Gallifer Cave , Ho Refit Cave , Weldon Cave C . bf,-ndida Bandit Cave , Ireland ' s Cave C . 1-,.-d d e I I i Cotterell Cave C . rey©si Airman ' s Cave C . cueva Cave X, Flint Ridge Cave C . travisae Amber Cave, Broken Arro,-, Cave, Yretschmarr Cave , McDonald Cave , Root Cave, Spider Cave , Stovepipe Cave, Tooth Cave Neolentoneta cocinnn Lost Gold & Stark ' s North Cave N . devia McDonald Cave Eidmannella reclusa Tooth Cave, Gallifer Cave , }"retscYLmarr Cave , Stovepipe Cave Aphrastochthonius 14 . S . Stovepipe Cave Tarta_:ocreagris reddelli McDonald Cave T . intermedia Airman ' s Cave T . N . S . 3 BCt`W'P, Texella spinopAir- man ' s Airan ' s Cave T . comanche New Comanche Trail Cave SpeOdesmus 'N. S . Bandit Cave, Cave X , Get Do�.rn Cave , Goat Cave, Pennie Cave , Pipeline Cave , Slaughter CreeK Cave , Whirlpool Cave Rhadine s . subterranea Cotterell , Fossil , Fossil Garden, Na Rent, McNeil Bat , Weldon Cave F . s . mitchall .i Amber, Kretschmarr, & Tooth Cave 10 p . aU.S nica ?,i man ' s ?:rro%.�, Bandit , Bee Creel: Blowing S_n): , Cave Y, Care Y , District Par): , Flint Ridge , Get Down, I.reland ' s , Lost Geld , Lost Oasis , Hapl.e Run , Midnight , Pennie , L FitiirlpC�C,l 2 . If during^ investigations for development of a tract , karst features are discovered with a significant diversity of troglobitic fauna , those karst features may be submitted to the USFW: for consideration for exchange with karse features identified for protection by the BCCP . The determination of "significant diversity" will be made by the permit applicants and the USFWS, in association with karst experts . The inclusion of such a karst feature would not increase the number of caves to be protected by the BCCP, but- would utwould result in the new feature replacing a previously identified cave or caves . . he_e the surface and sub_urface hydroceclogic area around a cave identified for protection is not known, the area delineated by the co-ntour l :ve= at- the bottom of the cave will be managed for cave protection. in the absence of such site specific information, no Participation Certificates are to be awarded within 0 . 25 miles of the cave entrance until the hydrogeologic areas a:e properly delineated . 4 . Enter into formal management agreement (s) for all caves that are recommended for protection but have yet to be acquired . The management agreement (s) will detail the area to be managed for cage protection , what such management will entail, and who is responsible for the management . CANYON MOCK-ORANGE Protect and manage the portions of the known populations found within the preserve boundaries , for the acreage acquired. TEXABAY,A. CROTON Protect and manage the populations at Pace Bend Park .