(12)AR 061609 AGRMT Memorandum of Understanding between Inland Memorial and the City of Colton

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WHEREAS, Biological Opinions ordinarily require that conservation/mitigation property be set aside for the benefit of the affected endangered species in order to offset the impacts of the particular development(s); and WHEREAS, Biological Opinions ordinarily require that the conservation/mitigation land be conveyed to a non-profit land trust, land conservation agency or public agency which is charged with managing the conservation property in perpetuity for the benefit of the species. NOW, THEREFORE, the City and Inland Memorial agree as follows: 1. Section 10 Proms. Inland Memorial agrees to participate in the City's ESA Section 10 Program. As part of its participation, Inland Memorial agrees to: (1) cooperate with City officials, staff and consultants in all respects related to the program including, but not limited to, with respect to the City's preparation of the necessary documentation to submit to the Service to initiate the program; (2) reasonably allow City staff and consultants to visit, during working hours, the Hermosa Cemetery property as part of the program; and (3) promptly carry out the terms and conditions of any Biological Opinion, incidental take statement or other approval issued by the Service for the Section 10 Program. 2. Cemetery Property to be Developed. Inland Memorial understands and agrees that the Section 10 Program proposal to be submitted by the City to the Service will, among other matters, request that the Service authorize Inland Memorial to develop up to 7 acres of the approximately 18 acres remaining on the Hermosa Cemetery site. Inland Memorial and the City acknowledge and agree that the Section 10 Program proposal will request that the 7 acres to be developed on the cemetery site be located on that portion of the cemetery site (the "Cemetery Development Property") that is adjacent to the existing development on the site, towards the northeast corner of the site. The Section 10 Program proposal will request that the remaining approximately 11 acres on the cemetery site (the "Cemetery Conservation Property") be conserved in perpetuity for the benefit of the DSF. The Cemetery Development Property and Cemetery Conservation Property are generally shown on Exhibit "A". Final lot line adjustments will be permitted that meet the needs of Inland Memorial while meeting the acceptance of the Service. 3. Role of the Service. The Parties agree and acknowledge that the Service may seek refinements of the City's Section 10 Program proposal, or reject it altogether, in the discretion of the Service. Thus, the Service may determine that the Hermosa Cemetery portion of the mitigation proposal or any other portion of the proposal is insufficient to protect the DSF. In that circumstance, the parties will work together in an attempt to find an acceptable solution. 4. Condition Precedent. This Agreement is contingent upon and conditioned on the United States Fish and Wildlife Service issuing Section 10 "Take" Authorization and any other necessary authorization required under the Federal Endangered Species Act, 16 U.S.C. § 1531, et seq., to allow Inland Memorial to develop 7 acres of its property. The parties acknowledge that under the Section 10 Program the Service does not have a formal timetable to respond to. Thus, the parties agree that neither Inland Memorial nor the City will be or can be responsible for any failure by the Service to act in a timely manner. The Parties also acknowledge that if and when the Service's Biological Opinion/Take Authorization is issued, such document will require that