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HomeMy WebLinkAboutMINUTES - 12071999 - D2 Contra TO: BOARD OF SUPERVISORS Costa �dsr� ri Count y FROM: DENNIS M. BARRY, AICP COMMUNITY DEVELOPMENT DIRECTOR DATE: December 7, 1999 SUBJECT: Status Report on Proposed East Contra Costa County Habitat Conservation Plan SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION RECOMMENDATION ACCEPT status report from the Community Development Director on a proposed East Contra Costa County Habitat Conservation Plan ("HCP"). AUTHORIZE the Community Development Director or his designee to submit one or possibly two funding applications to potential granting organizations in order to better define funding opportunities for this proposal. SCHEDULE a Board decision on County participation in this effort for the spring of 2000 following consideration of potential changes to the Urban Limit Line. FISCAL IMPACT Some staff time will be required to perform the above-recommended tasks related to better defining the HCP proposal. Successful requests for grant funding would augment the pool of potential funding for the HCP, but would not obligate the County to participate. If, at a later date, the County elected not to participate, grant funds could be returned or passed on to other government entities that choose to go forward with some version of the project. CONTINUED ON ATTACHMENT: X YES SIGNATURE RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE APPROVE OTHER SIGNATURE(S): ACTION OF BOARD ON APPROVED AS RECOMMENDED OTHER The following persons presented testimony: Carl Wilcox, California Department of Fish& Game; Sheila Larsen,U.S. Fish and Wildlife Service,3310 El Camino Ave W-206, Sacramento; Jim Gwerder, 11847 W.Valpico Road, Tracy. IT IS BY THE BOARD ORDERED THAT the status report from the Community Development Director on the proposed East Contra Costa County Habitat Conservation Plan is ACCEPTED; and January 25, 2000, at 1:00 p.m., is SCHEDULED for a Board decision on County participation. VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A TRUE X UNANIMOUS (ABSENT ��ne, ) AND CORRECT COPY OF AN ACTION TAKEN AYES: NOES: AND ENTERED ON THE MINUTES OF THE ABSENT: ABSTAIN: BOARD OF SUPERVISORS ON THE DATE SHOWN. Contact: John Kopchik (925) 335-1227 ATTESTED cc: Community Development Department (CDD) HIL BATCHELOR, LERK OF County Administrator BOARD OF SUPERVISORS County Counsel AND COUNTY ADMINISTRATOR Public Works Agricultural Commissioner SAConsery\John\hcpdec99.bo.doc BY , DEPUTY Report on Habitat Conservation Plan December 7, 1999 Page 2 BACKGROUND/REASONS FOR RECOMMENDATIONS On March 18, 1998, the U.S. Fish and Wildlife Service (USFWS) and the California Department of Fish and Game (CDFG) sent a letter to the County and other local government agencies urging that a regional Habitat Conservation Plan (HCP) be developed for Eastern Contra Costa County (attached). A regional HCP is a tool for receiving endangered species permits and possibly other permits over a broad area by establishing conservation measures, including a coordinated mechanism for purchasing habitat as a means for mitigating impacts. The plan and the associated permits would be based on a regional analysis of habitat and economics, baseline information intended to help agencies avoid impacts, effectively mitigate those impacts which can't be avoided, and fairly distribute the costs of conservation. The USFWS has also made clear that developing a regional HCP may reduce permitting obstacles to full use of Contra Costa Water District water rights and to transportation measures like the State Route 4 Bypass. A multi-agency staff report presented to the Board last year is attached to this report for further background on the HCP concept. In October of 1998, the Board received a report from staff and heard a presentation from representatives of the U.S. Fish and Wildlife Service and the California Department of Fish and Game. At that time, staff was authorized to conduct additional work on the proposal to frame a later decision by the Board on whether to participate in the development of such a plan. Since then, staff has met periodically with other involved local and regulatory agencies to discuss the matter, further explore the advantages and disadvantages of such planning, and draft a suggested agreement for cooperatively developing an HCP should such action be authorized. The current draft of the agreement, which is provided as an attachment, calls for the formation of a Joint Powers Authority to fund and manage development of an HCP. Due its regional jurisdiction and land use planning authority, the Draft JPA Agreement would assign the County a leadership role. The purpose of this report is to provide an update on the HCP proposal, suggest a schedule for considering County participation, describe potential grant opportunities, and summarize key aspects of the Draft HCP JPA Agreement. Scheduling a decision on participation: Though the Draft JPA Agreement and other supporting materials could be readied soon for a Board decision, staff recommends that such a decision on participating in the HCP be postponed until after the Board resolves proposed changes to the Urban Limit Line (ULL), in the East County area. Board consideration of ULL changes is expected to occur in the spring of 2000. Both the ULL changes and the proposed HCP relate to the issue of growth, albeit in different ways. The ULL is a limitation on growth while the HCP would be intended to deal with some problems associated with growth (i.e., habitat loss, environmental permitting issues, ineffective mitigation). Nonetheless, any HCP that is developed would need to consider planned or potential future growth. The location of the ULL could influence the content of a future HCP and inform the Board's decision on participation in the HCP effort. Grant opportunities: As explained in greater detail below, the Draft HCP JPA Agreement would directly raise $435,000 for preparation of the HCP from sources other than the County. However, we estimate that more than $200,000 in additional, outside funds will be necessary to complete the HCP. The Draft HCP JPA Agreement calls for raising such funds through grants from the public or private sector. Local agency staff identified two potentially suitable grant programs with application deadlines this fall: the EPA State, Local, Tribal Wetlands Grant Program and the National Report on Habitat Conservation Plan December 7, 1999 Page 3 Fish and Wildlife Foundation (a private organization that works closely with federal agencies like the U.S. Fish and Wildlife Service). County staff submitted a brief pre- proposal to the EPA program for$175,000, and recently received a response inviting a full proposal (though we were advised to request slightly less funding). We have also submitted a pre-proposal to the National Fish and Wildlife Foundation for $72, 500. A response to the latter pre-proposal is forthcoming. The Board is being asked for authorization to submit full proposals to the EPA and, if they accept our pre-proposal, to the National Fish and Wildlife Foundation. Pursuing grant funds at this time will help to clarify the financial situation of the HCP by next spring when the Board is considering the question of County participation. If our grant applications were favorably received, the HCP effort would have all or nearly all the funds we estimate to be necessary. However, other non-County funding options do exist as well. Success with grant funding would not obligate the County to participate in the planning effort. If, when considering the matter next spring, the County elected not to participate, grant funds could be returned or passed on to other government entities that choose to go forward with some version of the project. Summary of current draft of HCP Agreement: The draft agreement provides for the formation of a Joint Powers Authority (JPA) which would include the County, the Cities of Antioch, Brentwood, Clayton, and Pittsburg, the Contra Costa Water District (CCWD), and the East Bay Regional Park District (EBRPD). The agreement anticipates the potential for the City of Oakley to also join the JPA, though, since that City only incorporated a few months ago, Oakley staff was not present when the Agreement was originally drafted. The duties of the JPA would be to prepare a draft Habitat Conservation Plan for submittal to the governing boards and councils of member agencies (each member agency would then make an independent decision on approving the plan and submitting it as a permit application to the regulatory agencies). The JPA would also oversee compliance with the California Environmental Quality Act (CEQA) and the National Environmental Policy Act (NEPA), and would serve as the lead agency for CEQA purposes. The draft agreement calls for the JPA to provide regular updates on development of the HCP to the governing boards and councils of member agencies. The JPA would be governed by a committee of elected officials. Each member agency would designate one representative and one alternate from their governing Board or Council to participate on this committee. Representatives from land use planning agencies, i.e. the County and the cities, would have one vote on all matters under consideration by the JPA. The representative from the Contra Costa Water District would have one vote on all administrative matters, but no vote on land use matters. The agreement sets out the types of decisions which could be considered administrative and the types which could be considered as land use matters, and provides that, should any uncertainty exist regarding the ability of CCWD to vote on an item, the land use planning agencies would resolve this question with a vote. The EBRPD would have input on decisions but no vote. Staff from JPA member agencies would manage the operations of the JPA and implement the actions authorized by the committee of elected officials. The County's Community Development Department would take the lead staff role and would be designated as the "Coordinating Agency." The draft agreement provides that costs incurred by the Community Development Department in its capacity as "Coordinating Agency" would be reimbursed by the JPA (roughly estimated at about $50,000 per year). The draft Agreement also calls for the JPA to initiate and manage a public outreach and involvement program which would include at least one standing advisory committee of affected community interests and the conduction of broader public workshops as necessary. Report on Habitat Conservation Plan December 7, 1999 Page 4 The estimated cost to develop the HCP, including consultant costs and Coordinating Agency costs, is approximately $650,000 plus a 10% contingency reserve. Of this total, the draft agreement would directly raise $435,000 as follows: $325,000 from Contra Costa Water District, $100,000 from the State Route 4 Bypass Authority, and $10,000 from the City of Clayton. The contribution from the State Route 4 Bypass Authority is required as permit condition for implementation of the first phase of the Bypass Project, and, for purposes of the draft JPA agreement, is considered to represent the contribution of the County and the Cities of Antioch, Brentwood, and Pittsburg (and Oakley, should it join the JPA). Contra Costa Water District would pay half of$65,000 contingency reserve, should this be necessary. The remaining $215,000 (plus the other half of the contingency reserve)would be raised via grants from the public and private sector. Though a number of potential grant sources exist and the JPA is likely to be in a good position to apply for and receive such grants, the JPA would be required to develop a contingency strategy for developing a useful plan with less than full funding. The decision on whether to implement the planning process before all needed grant funds are in hand would be made by the JPA. Final legal review of this Draft Agreement by County Counsel has not yet been conducted. Such review would occur before the Board makes a decision on participation. Comments from the Board on the Draft Agreement are welcome. Information on Other HCP Efforts: To better define the HCP proposal, staff has contacted other agencies in Northern and Central California that have completed, or are in the process of completing, an HCP for their region. The driving forces behind these efforts appear to be increased scrutiny from USFWS combined with the desire for a coordinated approach to conservation that provides long term assurances and local control. Based on discussions with these agencies, we have prepared a chart comparing some key features of these plans, such as costs, public process, mitigation strategies, etc. We will continue to update and add information to this chart between now and the next time the Board discusses this matter. Next Steps: Should the Board approve the above recommendations, staff will submit funding applications and prepare a staff report for a spring 2000 decision by the Board on participation in the HCP effort. The staff report will include a revised Draft JPA Agreement. Staff will continue to meet occasionally with staff at other interested agencies to finalize details of the HCP proposal. Because of its proposed leadership role, staff from the involved local agencies believe that the County should be the first local agency to make a formal decision on participating in the HCP effort. The Contra Costa Water District, because of its important financial role in the proposed JPA, will likely consider the matter next. The Cities of Antioch, Brentwood, Clayton, Oakley, and Pittsburg and the East Bay Regional Park District will follow Contra Costa Water District. Attachments: • October 1998 Board Order and attached multi-agency Staff Report explaining the HCP concept • March 1998 letter from USFWS and CDFG urging development of an HCP in East County • Draft HCP JPA Agreement • Chart comparing features of other HCPs in Northern and Central California S:\Conserv\John\hcpdec99.bo.doc 1 r t 0 .E TO: BOARD OF SUPERVISORS �.. Contra . Costa FROM: DENNIS M. BARRY, AICP -- COMMUNITY DEVELOPMENT DIRECTOR County DATE: OCTOBER 27, 1998 SUBJECT: PRESENTATION BY THE U.S. FISH AND WILDLIFE SERVICE AND THE CALIFORNIA DEPARTMENT OF FISH AND GAME ON THE PURPOSE AND NEED FOR DEVELOPING A HABITAT CONSERVATION PLAN AND/OR NATURAL COMMUNITIES CONSERVATION PLAN IN EASTERN CONTRA COSTA COUNTY SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION RECOMMENDATIONS 1. HEAR presentation by the U.S. Fish and Wildlife Service and the California Department of Fish and Game on the purpose and need for developing a Habitat Conservation Plan ("HCP") and/or a Natural Communities Conservation Plan ("NCCP") in eastern Contra Costa County. 2. ACCEPT background report on the HCP/NCCP issue jointly prepared by the Community Development Department and staff from other local public agencies in eastern Contra Costa County. 3. CONSIDER directing the Community Development Director to: a) continue to collect information on, and analyze the advantages and disadvantages of, developing a HCP/NCCP; b) scope the basic tasks involved in developing a HCP/NCCP for the purpose of framing a later decision by the Board as to participation in any process to develop such a plan; c) identify potential outside funding sources for staff and consultant costs related to developing such a plan. CONTINUED ON ATTACHMENT. X YES SIGNATURE 'T :9_RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD OMMITTEE APPROVE OTHER SIGNATURE(S)Z. 42aZ26 e, Z4&e S�� ACTION OF BOARD ON October 27, 1998 APPROVED AS RECOMMENDED X OTHER VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A TRUE X UNANIMOUS (ABSENT - - - - ) AND CORRECT COPY OF AN ACTION TAKEN AYES: NOES: AND ENTERED ON THE MINUTES OF THE ABSENT: ABSTAIN: BOARD OF SUPERVISORS ON THE DATE SHOWN. Contact: John Kopchik, CDD (925-335-1227) ATTESTED October 27, 1998 cc: Community Development Department (CDD) PHIL BATCHELOR, CLERK OF County Administrator THE BOARD OF SUPERVISORS - County Counsel AN COUNTY ADMINISTRATOR Public Works Director(Avalon,Shiu,Tunison) Agricultural Commissioner • BY 4 &t4t7j DEPUTY j:4kopc1hcpoct98.bo Report on HCP/NCCP's October 27, 1998 Page 2 FISCAL IMPACT Performance of tasks under Recommendation 3, above, by the Community Development Department could have a cost of approximately $2,000 to $5,000, but has some relation to existing staff work on the East County Biodiversity Project. Actual development of an HCP/NCCP would require substantial staff time and identification of a source of funding. BACKGROUND/REASONS FOR RECOMMENDATIONS This presentation and staff report are an outcome of a March 18, 1998 letter from the U.S. Fish and Wildlife Service and the California Department of Fish and Game to the Board of Supervisors and elected officials at other local government agencies. On April 21, 1998, the Board of Supervisors referred this letter to the Community Development Director for appropriate action. Complete background information on this item is contained in the attached "HCP/NCCP Staff Report"jointly prepared by the Community Development Department and staff from the cities of Antioch, Brentwood, Clayton, and Pittsburg, the East Bay Regional Park District, and the Contra Costa Water District. As the Board of Supervisors has recently initiated major efforts related to addressing the impacts of growth, to reviewing the Urban Limit Line and the General Plan, and to identifying options for funding acquisition of land or easements for open space, discussion of the HCP/NCCP issue would seem timely. If further consideration of the HCP/NCCP matter is directed, this consideration should evaluate opportunities for integrating the HCP/NCCP with other broad policy initiatives. The HCP/NCCP proposal should not be seen as an alternative to such initiatives since: a) it is intended only to provide state/federal permits and to establish a program for mitigating some environmental impacts; b) it is not intended to directly address other significant issues such as traffic and air quality; and c) would not directly regulate land use. JAjkopc\hcpoct98.bo HCP/NCCP Staff Report September 30, 1998 Report preparedjointly by staff at Contra Costa County{CCC), the cities of Antioch,Brentwood, Clayton and Pittsburg, the East Bay Regional Park District(EBAPD)and the Contra Costa Water District(CCWD). Finalized for presentation to the Contra Costa County Board of Supervisors by staff at CCC. Introduction On March 18, 1998,the U.S.Fish and Wildlife Service(LJSFWS)and the California Department of Fish and Game(CDFG) sent a letter to land use planning agencies and special districts in the east Contra Costa County area recommending the development of a regional Habitat Conservation Plan (HCP)and Natural Communities Conservation Plan(NCCP)(letter is attached). Staff at USFWS and CDFG have agreed to follow up on this letter by making presentations to its recipients,namely, the Contra Costa County Board of Supervisors,the City Councils of Antioch,Brentwood, Clayton, and Pittsburg,and the Board of Directors of the Contra Costa Water District(CCWD)and the East Bay Regional Park District(EBRPD). This report was jointly prepared by local agency staff as a preliminary discussion of this issue to accompany the presentations. The following subjects are discussed: 1. What is a HCP or NCCP? 2. Background on the proposal for developing a HCP/NCCP in East County 3. Current process for complying with the endangered species acts 4. How HCP's/NCCP's modify the process for endangered species compliance 5. Options for broadening plan to incorporate other permits and policy goals 6. Process for developing an HCP/NCCP 7. Preliminary analysis 1. What is a regional HCP or NCCP? HCP's and NCCP's are vehicles for obtaining a permit for the incidental take of endangered species. HCP's are authorized under federal law and relate to species and restrictions covered by the Federal Endangered Species Act(FESA). NCCP's relate to the California Endangered Species Act(CESA) and the species and regulations covered by it. The term "Incidental Take Permit" or "ITP" is sometimes used to describe such plans.The first HCP in the U.S.was completed in 1982 to protect endangered species and permit development on San Bruno Mountain in San Francisco. Since then, thousands of individual landowners or developers have completed relatively small-scale HCP's to receive endangered species permits for projects on their land. Many such HCP's are in progress for individual projects in the East Bay, and many local developments, including Dougherty Valley, have prepared very similar plans under a different section(section 7)of FESA which applies when a project has a federal connection, either for funding or permits. The concept of developing a regional HCP/NCCP which covers a multitude of landowners was first tested in the early 1990's in southern California. The intended purpose of these initiatives was to improve the process for complying with endangered species regulations by: 1)providing a permit and improved regulatory certainty to the entire region rather than one landowner at a time; and 2) developing a coordinated, efficient system for permanently protecting endangered species habitat at a scale better suited for biological conservation. In efforts such as these, local government(s) develop and approve the plan,typically via an extensive public process. An implementing authority set up by the local governments(s)holds the Yf?and carries out associated requirements,such as the acquisition of habitat. Governor Wilson signed the Natural Communities Conservation Act in 1991 to enable preparation of NCCP's and provide an approximate state equivalent to the federal HCP. Both the Clinton and Wilson administrations have advocated regional HCP's/NCCP's as more proactive, effective, and efficient means for reconciling development and species protection. Approximately 20 such regional plans-most still labeled only as RCP's-are approved or are being prepared in California,including completed plans in Orange County and the City of Bakersfield,and plans nearing completion in San Joaquin,Yolo, and Sacramento Counties. 2. East County Background The USFWS and CDFG initiated discussion of the purpose and need for developing a HCP for East County in 1997,requesting meetings with staff from local government and special districts. Both regulatory agencies expressed concern over the loss of habitat in East County for such species as the San Joaquin Kit Fox,Alameda Vv'hipsnake,California Red-Legged Frog,and Bald Eagle, and urged preparation of a conservation plan to better protect these and other listed species and streamline endangered species permitting. The USFWS also discussed the biological opinion provided during approval of the CCWD Los Vaqueros Project which limits CCWD water diversions to 148,000 acre feet per year(af/y),and prevents CCWD from using their full entitlement of 195,000 af/y under the Central Valley Project (CVP) contract with the U.S. Bureau of Reclamation. To remove the limitation, USFWS is requiring that a plan be developed to effectively mitigate for impacts to terrestrial endangered species associated with growth in the CCWD service area. USFWS has also encouraged the State Route 4 Bypass Authority to participate in an East County HCP to mitigate for direct and growth related impacts associated with its projects. Staff from local jurisdictions asked for further details on why East County was emphasized, on why local governments should consider embarking on such a potentially time-consuming effort, what science existed regarding endangered species in the area,and what the state and federal governments could offer in terms of assistance,particularly financial assistance. Local staff also requested that the USFWS and CDFG send a joint letter to local elected officials explaining their recommendation regarding development of an HCP/NCCP. Since the letter was transmitted in March, local agency staff has participated in several other meetings on this topic to learn more about what is involved in developing a plan, to explore the advantages and disadvantages from a local perspective,and to discuss presentations by the USFWS and CDFG before local Boards and Councils. The dialogue was expanded to include representatives from wetlands regulatory agencies,such as the U.S. Environmental Protection Agency(EPA),the U.S. Army Corps of Engineers (COE), and the California Regional Water Quality Control Board 2 (RWQCB), to discuss opportunities for streamlining wetlands permitting within the HCP/NCCP program. Concurrently, a committee of landowners, developers, conservation groups, community organizations, agriculturalists,and govenunent agency staff known as the East County Biodiversity Working Group Task Force,has been reviewing data and analysis regarding biological resources and land use in eastern Contra Costa and Alameda Counties. The collected data could be useful in the preparation of an HCP/NCCP. The Task Force is also seeking to recommend methods for improving the process of conserving biological resources. The HCP concept has been discussed at some length by the Task Force,and presentations have been made to the group,including a principal consultant in the San Joaquin County HCP. Discussions of the advantages and disadvantages of HCP/NCCP's continue, and the Task Force has not yet reached consensus on the issue. A report from the Task Force is expected later this year, and will include discussion both of resource data and policy or process recommendations. 3. Current Process for Complying with Endangered Species Acts Public agencies, developers, and other project sponsors currently address endangered species regulations individually on a project-by-project basis. Potential impacts to endangered species are considered and potentially mitigated within the California Environmental Quality Act (CEQA) process,but in many cases must also be addressed through individual consultation with the USFWS and CDFG. Regardless of regulatory venue, endangered species compliance typically requires: a) thorough field surveys of the site at appropriate times for endangered species; b) negotiations on mitigation,site design, and construction practices; and c) identification and procurement of any needed off-site mitigation and/or dedication of on- site mitigation(e.g.,open space easements) The above compliance is performed individually by the landowner/developer and the USFWS and CDFG in order to obtain an individual take permit(ITP)pursuant to CESA section 2081 and FESA section 10 when a non-federal action (i.e., project or activity) may jeopardize or impact a listed species, or its habitat. In Contra Costa County, the ITP is more often issued under section 7 of FESA which applies when a project has federal funding or requires federal permits, such as for wetlands. The local land use agency is usually not involved,but does separately negotiate mitigation under CEQA. The amount of time and funding dedicated to each of the above three tasks varies, sometimes dramatically, from one project to another. Some project proponents in East County have incurred significant expense in this process. All project proponents must contend with some uncertainty regarding how long endangered species compliance will take,how much mitigation will be required, and what will happen in the future if unforeseen circumstances arise that affect a protected species before an ITP issued. In addition to endangered species requirements, CEQA(and NEPA if a federal project), and any 3 resource protection measures adopted by the local land use planning agency,project proponents must also comply with a number of other environmental regulations. For example, actions that could affect wetlands must have a thorough site survey and formal wetland delineation sanctioned by an appropriate regulatory agency. Such projects must also receive permits from the U.S. Army Corps of Engineers(COE),and the Regional Water Quality Control Board(RWQCB). Depending on the project,the U.S.Environmental Protection Agency(EPA),USFWS, and CDFG might be involved in processing the wetlands permit from the COE. A permit may also be needed from the Bay Conservation And Development Commission and others if the project is located on the shoreline. Projects affecting streams require a stream bed alteration agreement with CDFG and may also be subject to wetland regulations. Construction activities require a separate permit from the RWQCB to control water quality impacts. Projects might also face local and other restrictions on impacts to prime agricultural lands. 4. How Regional HCP/NCCP's Modify the Process for Endangered Species Compliance Regional HCP/NCCP's establish a coordinated process for permitting and mitigating the incidental take of endangered species which can take the place of the current, project-by-project approach. Rather than individually surveying, negotiating, and securing mitigation, project proponents typically receive an ITP by simply paying a fee,though some HCP/NCCP's may contain alternative or additional permit conditions. The fees are collected by an implementation authority designated during development of the HCP/NCCP,often a Joint Powers Authority composed of representatives of local agencies. The implementation authority then uses the fee money, as well as grants and any other funding sources established in the plan,to purchase habitat lands or easements from willing sellers. Collected funds are also used for monitoring and any habitat enhancement or management actions. HCP/NCCP's are intended to benefit developers by improving regulatory certainty,by obviating the need for surveys and mitigation negotiations, and by providing a coordinated,more cost effective system for acquiring mitigation. HCP/NCCP's are also intended to benefit species by replacing the current project-by-project mitigation with a coordinated system more suitable for protecting connected blocks of habitat in a biologically sound manner. Larger and connected blocks of conserved lands will increase the potential to benefit and preserve multiple species. Some other necessary or optional components of HCP/NCCP's include the following: no "z RCP's d NCCP's generally guarantee that fees and conditions of the & an incidental take permit will not deviate from the fees and conditions agreed upon in the HCP/NCCP, as long as the program operates as originally planned. This "no surprises" policy will remain effective even when the regulatory status of covered species change. For this reason, many plans extend coverage to species which are not currently listed as endangered or threatened,but have some potential for being listed(i.e., current candidates for listing, etc.). habitat 12ursed via CQnse-r-yation easements or fee tit& -from willing sellers:, Many HCP/NCCP's use a combination of conservation easement and fee title acquisitions to 4 protect habitat. Under a conservation easement, the landowner receives compensation for on-going land stewardship in exchange for agreeing not to develop the lands. voluntga 12artici2ation: Many HCP/NCCP's provide project proponents with the option of not participating in the HCP and instead addressing endangered species on their own as occurred previously. However, since mitigation fees are calculated based on assumed levels of participation, it is important that the plan be financially attractive to ensure that the participation rate matches expectations. hold harmless provisions: Plans can include hold harmless provisions which provide assurances to those landowners adjacent to acquired preserves. financing alternatives: Habitat mitigation can be financed with a combination of funding mechanisms,including flat,per-acre development fees,development fees which depend on the quality of habitat to be developed, grants from private, state,and federal sources,local bond or tax revenues,and other public or private funding sources. In most cases,plans are structured to be "pay as you go," meaning that habitat acquisition requirements are not determined up front,but rather keep pace with development. continued gar W azLr1g;. Mitigation lands that are purchased or placed under easement would usually continue to be grazed. Some limitations on grazing intensity and grazing near water bodies may be imposed on lands acquired or placed under easement. In HCP/NCCP's where prime agricultural lands are purchased for habitat value(e.g.,in Yolo County),current agricultural activities are expected to continue. =12-based vs. 12rocess-based,glans: Many of the first regional plans developed in southern California were map-based, meaning that areas of development and areas of habitat protection and acquisition were explicitly mapped. More recent plans in the Central Valley have been referred to as process-based plans which do not map development or preserve areas, but simply establish a process for collecting mitigation fees, issuing permits, and purchasing mitigation lands. Both map and process-based plans can be related to general plans in order to assist with calculating fee amounts,while process-based plans may contain narrative descriptions of the habitats to be purchased. A hybrid of these two approaches has also been used which maps relative resource values and assigns lands mitigation credits based on this map. Lands with high resource values pay a relatively higher per acre fee to develop,but also receive relatively higher per acre mitigation compensation. 5. Options for Broadening Plan to Incorporate Other Permits and Policy Goals RCP's and NC I CP's only provide incidental take permits for endangered species, but can be expanded to include permits for other natural resources such as wetlands. Some plans in southern California did not originally incorporate wetlands and other permits, and participants became frustrated that the process did not provide complete permit streamlining. Incorporating wetlands permits from the COE and the RWQCB primarily requires the complete involvement of these and other wetlands agencies,such as the EPA,in the planning process. Integrating wetlands permitting 5 and endangered species can be accomplished as the regulations are generally either unrelated or complimentary. A potential difficulty relates to the emphasis on avoiding impacts in wetlands regulations,while endangered species regulations tend to promote mitigation of impacts- although there are some species,particularly plants,that may require full habitat preservation and may not be able to be mitigated. Options for streamlining CEQA compliance and for integrating other types of pen-nits are possible and could be further examined. Since RCP's and NCCP's essentially involve a coordinated system for mitigating impacts,they can be integrated with or adapted to other policy initiatives. For instance,the funding and acquisition components of such a plan could also be used to purchase and protect open space and productive agricultural lands. Likewise, beyond sharing a financial mechanism, accomplishing open space protection and, perhaps to a lesser extent,, protection of prime agriculture is compatible with the habitat protection needs under an HCP/NCCP. San Joaquin County's pending plan is titled"San Joaquin County Multi-Species Habitat Conservation and Open Space Plan"and allows for both the purchase of land for habitat and open space values. In Yolo County's plan, all mitigation lands to be purchased are cultivated agriculture and protecting such activities is a central goal of the plan. 6. Process for developing the HCP/NCCP The following is a preliminary list of the steps that could be undertaken to prepare an HCP/NCCP should the local agencies in the East County elect to do so. • Determine the geographic scope:, The staff discussions with resource agencies to date have largely envisioned an East County Plan,dictated by the general physical separation from central Contra Costa County by the Willow Pass ridge extending southeast toward the Kellogg Creek watershed, but also including the Marsh Creek Road and Morgan Territory Road areas. However,plan boundaries are flexible and can be expanded or narrowed by local agencies that participate in preparing the plan. • Develop a Memorand—um of Understanding(MOIL among local a2mcies: The proposed MOU should cover participation,, funding and management of the HCP/NCCP development process. Typically, the management structure would include a representative from each participating agency.This local agreement should formalize the membership,identify the Lead Agency and assign responsibilities for each agency, identify the boundaries of the plan area, the financing sources and amounts to develop the plan,establish the public process to oversee or advise in the development of the HCP/NCCP, and determine the policy,permitting goals and scope for the plan. • Develop a Memorandum of Agreement UAOA) with the resource A MOA is recommended to establish the relationship between the local agencies and resources agencies. An important purpose would be to establish how listed species and habitat will be addressed during the interim until an HCP/NCCP is adopted and implemented. Other essential elements would include identifying the planning area,the local participating agencies,the target species to be addressed, the Federal and State permits to be addressed (e.g., FESA Section 10 (a), affected Federal and State land ownerships,other HCP or multi-species protection plans existing 6 or being undertaken in the area(e.g.,private party plans),and the anticipated schedule for plan preparation,public review and agency review and adoption. • Select a consultol-, A consultant having biological resources expertise and familiarity with developing an HCP/NCCP should be considered. The details of consultant selection, management, financing and staff coordination may be addressed in the local MOU. • Establish a Public Outrea-cl-vLnvolvgment--Proizr=: HCP/NCCP programs typically involve substantial public outreach and a formalized public involvement process involving all interested parties to help guide and refine plan development. The MOU should define the structure and process for implementing public outreach and involvement. • Define goals and establish parameters for the HCP/NCQP: In accordance with the general description of permit and mitigation provided in section 4(How Regional HCP/NCCP's Modify the Process for Endangered Species Compliance), decisions would need to made on the following matters early in the process: (1) selecting the species to covered in the permit and identifying natural communities (habitat,vegetation types), (2) establishing a process for the identification of target species for each community,(3)identifying viable mitigation techniques (land or easement purchase)relating to land use and economic considerations of the area, and (4)determining the overall goals for species protection and recovery,if necessary. Consideration would be given to the appropriateness of a map or policy based HCP/NCCP in achieving the overall species protection,economic and open space goals 7. Preliminary Analysis Development of an HCP/NCCP for the East County area could increase local control of land use decisions by locking in USFWS and CDFG permit approvals up front--replacing project- by-project permitting under state and federal agencies with a locally-administered conservation and permitting program. Additional potential benefits of a regional process include: • raising money to acquire land or easements by lowering permitting and mitigation costs to developers • improved certainty, permit streamlining, and "no surprises" for landowners and developers affected by endangered species regulations • improved protection for biological resources by incorporating regional-level analysis and mitigation to protect ecological processes rather than only declining species • purchase of community open space from willing sellers • removal of obstacles for using federal funds for transportation and other regional projects • potential for lowering local agency costs over the long term • improved regional or sub-regional interagency coordination • offers a mechanism for rewarding landowners for on-going resource stewardship • would allow the CCWD to fully utilize its Central Valley Project water supply contract • federal and state funding sources may be available for plan preparation,thereby fin then reducing individual landowner or developer costs. The USFWS has indicated they will 7 provide a listing of and support for potential funding sources for planning purposes. One such funding source may be the Environmental Protection Agency(EPA). Disadvantages and risks associated with preparing a regional HCP/NCCP could include: • some initial planning costs may shift from individual landowners to participating agencies • political uncertainty, including the possibility that some agencies may not participate, could remove themselves from the process at critical times, or could change their positions on components of the plan • landowner concerns and skepticism • conservation organization concerns and skepticism • significant time and effort involved in preparing such plans • as with all complex planning efforts involving multiple independent bodies,the potential exists for the planning process to fail to accomplish all intended goals • litigation risks Attachment: USFWS/CDFG joint letter dated March 18, 1998 JK/DP 9/30/98 jA\jkopc\hcpoct98.rep 8 r + UN., US Fish&Wildlife Service r CA Dept.of Fish&Game Sacrarmento Fish and Wildlife Office ` i P.O.Box 47 3310 El Camino Avenue,Suite 130 Yountville,California 94599 acramento,California 95821(916)979-2710 FAX(916)979-2723 1-1-98-TA-0850 RECEIVED March 18, 1998 Mr. Jim Rogers APR Director,Board of Supervisors 0 2 1998 Clerk of Board of Supervisors CLERK BOARD of SUPERVISORS 651 Pine Street CONTRA COSTA Co. Martinez,California 94553 Subject: Purpose and Need for a Habitat Conservation Plan in East Contra Costa County,California Dear Mr.Rogers., On September 16, 1997,representatives of the U.S. Fish and Wildlife Service(Service)and the California Department of Fish and Game(Department)met with representatives from East Contra Costa County(County)local governments and special districts at Contra Costa Water District's(CCWD)office. A number of questions were raised at that meeting regarding development of a Regional Multi-species Habitat Conservation Plan (HCP)and a State- authorized Natural Community Conservation Plan(NCCP). The primary questions posed, from agency staff',centered on the purpose and need for undertaking an HCP/NCCP. It is our intent, through this letter,to further communicate our perspective on the regulatory advantages to the County of preparing an HCP/NCCP,the mutual benefits gained by protecting the County's sensitive and unique environmental resources, and reasons why we encourage the County and/or Cities to develop a HCP/NCCP in close cooperation with the Service and the Department. The Service and the Department are sending copies of this letter to policy makers and staff'at a number of agencies,as indicated in the attached list of recipients. Endangered Species in East Contra Costa,Com The diverse habitat mss,found in East Contra Costa County,provide habitat for numerous state and federally listed species. The federally threatened Alameda whipsnake(Masticophis lateralis euryxanthus)may be found in the hillside chaparral. The federally threatened vernal pool fairy shrimp(Branchinecta lynchi)may be found in vernal pools associated with grasslands. The California tiger salamander (Ambystoma californiense),a Federal candidate and State threatened species,may also be found in vernal pools or stockponds during the winter months, and in the associated grasslands during the remainder of the year. These grasslands are also utilized by the federally endangered San Joaquin kit fox(Yulpes macrotis mutica). Riparian areas,wetlands, Mr.Jim Rogers 2 and stockponds may also support the federally threatened and State species of concern California red-legged frog(Rana aurora&aytonii). These and other listed species have been seriously impacted by past development in the County. In addition,the Service is aware of numerous current projects not in compliance with the Endangered Species Act of 1973,as amended(Act), and have unauthorized "take",as defined below,of listed species: Endangered S22cies Regulations and Alternative Mears For Compliance Section 9 and the implementing regulations in section 4(d)of the Act,prohibit the"take" of any. fish or wildlife species federally listed as endangered or threatened,unless specifically authorized by the Service(or National Marine Fisheries Service for anadromous fish and marine mammals). As defined in the Act,take means " . . .to harass,harm,pursue,hunt, shoot,wound,kill,trap, capture,or collect,or attempt to engage in any such conduct." "Harm"has been further defined to include habitat destruction,when it kills or injures a listed species by interfering with essential behavioral patterns such as breeding,foraging,or resting. Take,incidental to an otherwise lawful activity(referred to as"incidental take"),may be authorized by one of two procedures: If a Federal agency is involved with permitting, funding,or carrying out of the project, then initiation of formal consultation between that agency and the Service,pursuant to section 7 of the Act,is required if it is determined the proposed project may affect a federally listed species. Such consultation results in a biological opinion addressing the anticipated effects of the project to the listed species and may authorize a limited level of incidental take. Non-Federal entities, engaging in otherwise lawful activities that may result in "take" of listed species,should obtain an"incidental take permit"pursuant to section 10(a)(1)(B) of the Act. To obtain an incidental take permit,the permit applicant must develop an HCP and submit it to the Service. The HCP must specify(among other things)the impacts likely to result from the taking,and measures the permit applicant will implement to minimize and mitigate such impacts. An HCP may also include conservation measures for federally proposed and candidate species. State listed species,and other species not listed under the Act at the time an HCP is developed or a permit application is submitted may also be included. Including unlisted species in an HCP can benefit the permittee, through coverage of such species under the permit,thereby ensuring the terms of the HCP will not change over time with subsequent listings. In the past,most HCPs were completed for single landowners and relatively small areas. However,multi-species HCPs completed by local governments and covering thousands or even millions of acres are becoming more common. For example, such regional HCPs are underway or complete in San Joaquin, Sacramento,and Yolo counties. Rogers• r Jim Rvgers 3 The California Endangered Species Act(CESA)prohibits take of listed threatened and endangered species and candidate species,formally proposed for listing by the California Fish and Game Commission. CESA was recently amended and is similar to the Act. The Department can authorize *incidental take of listed species with appropriate measures to assure impacts are fully mitigated. The Department is currently drafting regulations to implement requirements of the amended CESA. Separate authority is granted to the Department to authorize take through the NCCP. The NCCP approaches permitting from a large scale habitat and multi-species conservation perspective. An NCCP is similar to a multi-species HCP in that it can provide coverage for both listed and non-listed species that may be listed in the future. This coverage is accomplished in the context of an implementable plan,assuring the conservation of the covered species.,and their habitat within the coverage area. The NCCP provides a mechanism for the State to provide consistency in mitigation requirements and to streamline permitting for projects consistent with the NCCP. Development of the NCCP would occur concurrently with the HCP and requirements would be similar to those required for compliance with the Act. Initial information feasibly used in the formulation of an NCCP for the area in question,has been developed through the East County Biodiversity Study. Additionally, a possible stakeholder group,which could provide valuable input into development of an HCP/NCCP,has been assembled through the East County Biodiversity Study working group. lJow Regional JdCPsNCCPs WQ&: Regional HCPsNCCPs establish a coordinated process for permitting and mitigating the incidental take of endangered species. Developers seeking coverage under the HCP/NCCP typically pay a mitigation fee and receive an incidental take authorization or permit for their project,consistent with the terms of the HCP/NCCP. Developers are then typically relieved of the expense of endangered species surveys and of individually securing mitigation. Funds collected via these fees,sometimes augmented with other funding sources,are pooled and used to purchase habitat from willing sellers. Such coordinated mitigation generally benefits species far more than project by project mitigation since it increases flexibility and enables purchase of connected and biologically rich blocks of habitat. Many plans purchase habitat with a combination of conservation easements and fee title transactions. Property owners who sell conservation easements are typically able to continue ranching or farming their land as before. Advantages of]&egional HCPsNCCPs: Currently,landowners may individually develop HCPs for federally listed species on their property. Likewise,CESA allows for incidental take on a"project-by-project!'basis through issuance of a 2081 permit. while permitting requirements are generally consistent for the same species,requirements may vary for different species. Therefore,when an applicant must mitigate for more than one species,different requirements for each species can make it difficult to develop appropriate and cost-effective mitigation. The process of obtaining individual State and Federal permits can be time consuming due to the sheer number of individual projects received by agencies and staffing limitations of the agencies involved. In addition,new State regulations } Mr.Jim Rogers 4 require the Department to comply with the California Environmental Quality Act prior to issuing 2081 permits,possibly adding further delays resulting from the public review time. The development of a regional HCP and/or NCCP will alleviate these problems,and provide certainty for landowners and developers in planning and regulatory expectations. Another important catalyst for development of an HCP/NCCP results from development of the CCWD's Los Vaqueros Reservoir Project(Los Vaqueros). In 1993,through the regulatory mechanism of section 7 of the Act,CCWD was designated the non-Federal representative for the U.S. Bureau of Reclamation,to act on their behalf in addressing endangered species issues for Los Vaqueros.The Service issued five biological opinions(Ref.Nos. 1-1-92-F-48; 1-1-93-F-35; I-I-95-F-117; 1-1-96-F-I 10;and 1-96-F-151)addressing the impacts of 'Los Vaqueros on federally listed species. In the delta smelt opinion(1-1-93-F-35),the Service authorized incidental take of delta smelt based on an annual maximum water delivery of 148,000 acre feet by CCWD to its customers. The Service understands CCWD is approaching this maximum delivery amount. CCWD will require incidental take coverage from the Service to exceed this amount. To obtain incidental take coverage for additional water deliveries over 148,000 acre feet,CCWD,through the U.S.Bureau of Reclamation,must reuutiate consultation with the Service to address impacts on listed species. Future consultation on additional water deliveries must address direct,indirect and cumulative(i.e.,growth inducing)impacts of the project. This means the U.S. Bureau of Reclamation must consider direct impacts to aquatic species such as • delta smelt, and also address unpacts on listed upland species (i.e., San Joaquin kit fox),from increased urban development resulting from increased water deliveries. Therefore,CCWD cannot proceed to deliver additional water to their customers until measures to minimize and mitigate the impacts on listed aquatic and upland species have been developed and evaluated through section 7 consultation process. The section 7 process would be greatly facilitated if CCWD and local agencies within CCWD's service area obtained a section 10(a)(1)(B)permit through development of an HCP and NCCP process for Federal and state listed species. This would allow greater input from local agencies and affected stakeholders in developing a plan to address species,and the section 7 consultation could adopt the approved HCP/NCCP. As stated previously,the cost and procedural requirements of individual applicants far exceed what could otherwise be accomplished through a regional HCP/NCCP planning effort. In addition,increasing the planning area to include many landowners activities,under auspices of pernut holders that are local government agencies,can spread the cost and allow for equitable and shared responsibility in meeting legal requirements under CESA and the Act. There are many benefits of such a region and multi-species HCP/NCCP to the County and its residents. A regional HCP/NCCP would: (1)maximize flexibility and increase options in developing mitigation programs;(2)reduce uncoordinated decision making which may result in incremental habitat loss for bath listed and non-listed species;(3)reduce the economic and logistic burden of environmental compliance on individual landowners and streamline the responsibilities of local jurisdictions;(4)reward interested private landowners economically for resources on their property;(5)decrease permitting agencies' project review time and facilitate timely progression of projects; (6)bring a broad range of activities under the permit's legal protection; (7)allow W.Jim Rogers 5 input into the process by affected stakeholders;and(8)help maintain a quality environment for the benefit of the County's residents by setting aside are-as for open space and other recreational uses. Two of the largest benefits a regional HCP/NCCP offers local jurisdictions are early identification of significant resource issues,and regulatory certainty and predictability in planning for future urban growth and development. potential Next St= The geographic scope and species to be covered under an HCP/NCCP are flexible and, ultimately,are primarily the decisions of the permit applicant. The Service and the Department encourage local governments to undertake regional and multi-species HCPs/NCCPs because of their effectiveness in guiding long-term planning for species conservation and reducing unforeseen resource conflicts. Funding for developing an HCP/NCCP can potentially be obtained through several sources. Such funds are often generated by local interests. However,the Service is aware of another regional planning effort that applied for,and received funds from,the National Fish and Wildlife Foundation with assistance from a local transportation agency and local jurisdictions. Although monies from CALFED(Category 3 :ftinding)cannot be used for the HCP/NCCP development process,these monies could potentially be requested for acquisition of mitigation lands. • Although no guarantees of obtaining these funds can be made,the Service and the Department would willingly provide letters of support. Section 6 of the Act allows for monies to be distributed, in coordination with the Service and the Department,to supplement funding of approved HCPs/NCCPS,if those of contribute to recovery of listed species. The draft Recovery Plan for Upland Species of the San Joaquin Valley, California(199 7)identifies portions of eastern Contra Costa County as a target area for protection of habitat for the San Joaquin kit fox. 'In addition,East Contra Costa County is important to recovery of the California red-legged frog because it is located within the Central Valley Hydrographic Basin recovery unit, as described in the final rule(61 FR 25813 ). If the HCP/NCCP contributes to recovery of the San Joaquin kit fox,California red-legged frog or other federally listed species, applications for funds as described in section 6 of the Act could be submitted. We appreciate the cities",County's and CCWD"s desire to know more about the HCP/NCCP process and acknowledge that Contra Costa County already undertaken significant strides in endangered species conservation. The on-going East Alameda/Contra Costa Biodiversity Study has proven to be a useful and effective forum for developing partnerships and shared interests between stakeholders. It has also generated a wealth of biological data which would greatly facilitate the development of an HCP/NCCP. We are fully committed to assisting County governments with the HCP/NCCP process. Our role in this process would be to provide advice and recommendations ori technical biological issues and regulatory requirements and standards,to serve as a member of the planning committee,to help facilitate agreement between stakeholders'and,ultimately,to issue the appropriate permits. Mr. Jim Rogers 6 Initial decisions related to cost of development and implementation,size of the planning area, and species to be covered,are extremely important and should be the focus of any subsequent meetings. We would also like to extend an offer to present an informational workshop on'the HCP/NCCP process for various Board and Council members during the spring of 1998. We look forward to further discussions and the opportunity to present the workshop to you. Should you have questions regarding this letter or desire further assistance,please contact Ms. Cay Goude of the Service's Endangered Species Division at(916) 979-2725 or Carl Wilcox of the Department's Ecological Services at(707)944-5525. Sincerely, 146znnne S. White Brian Hunter Field Supervisor Regional Manager cc: Contra Costa County,Martinez, CA(Mr.Dennis Barry,Ms. Roberta Goulart, Mr. Val Al exe f f and Mr.John Kopchick) t� GO DRAFT (December 7, 1999) East Contra Costa County Habitat Conservation Plan Authority (HCPA) Agreement for the Preparation of a Habitat Conservation Plan/Natural Communities Conservation Plan and Providing for Public Agency Cost Sharing This Agreement is entered into this day of , 2000 by and among the Cities of Antioch,Brentwood, Clayton, and Pittsburg, Contra Costa County, the Contra Costa Water District, and the East Bay Regional Park District. These seven agencies are collectively referred to as the"member agencies." PURPOSE: The purpose of this Agreement is to establish a Joint Powers Authority, the East Contra Costa County Habitat Conservation Plan Authority("HCPA"),pursuant to the Joint Exercise of Powers Law,Government Code sections 6500 through 6599.1 ("the Law"),to manage and fund the development of a Habitat Conservation Plan (HCP), Natural Communities Conservation Plan(NCCP), and/or similar plan for protecting natural resources and securing regulatory permits in East Contra Costa County. A separate agreement shall be necessary to describe the terms for implementing any plan developed by the HCPA. SUMMARY OF ACRONYMS AND ABBREVIATIONS: Acronyms and abbreviations used in this Agreement are defined in the text when first used. For clarity, a list of acronyms and explanations is also provided below. CDFG: California Department of Fish and Game CEQA: California Environmental Quality Act CESA: California Endangered Species Act EGC: Executive Governing Committee (committee of elected officials which oversees the HCPA) FESA: Federal Endangered Species Act HCP: Habitat Conservation Plan(relates to FESA) HCPA: East Contra Costa County Habitat Conservation Plan Authority NCCP: Natural Communities Conservation Plan(relates to CESA) NEPA: National Environmental Policy Act RWQCB: California Regional Water Quality Control Board USACE: United States Army Corps of Engineers USEPA: United States Environmental Protection Agency USFWS: United States Fish and Wildlife Service Law: Government Code §6500-6599.1, unless otherwise specified DRAFT HCPA AGREEMENT,12-7-99 RECITALS: A. The member cities and County are managing growth within their jurisdictions according to their respective General Plans and policies,and by this agreement wish to cooperate in the development of an HCP/NCCP and/or similar Plan for protecting natural resources and securing regulatory permits in East Contra Costa County. B. Some future growth and some infrastructure maintenance activities within the jurisdictions and potential future annexation areas of member agencies may have the potential to adversely affect endangered species and their habitat, and could result in unauthorized harm or "take" of endangered species which is prohibited under the California Endangered Species Act (CESA) [Fish and Game Code §2050 et seq.; "take" is defined in Fish and Game Code section 86] and Federal Endangered Species Acts(FESA) [16 U.S.C. §1531 et seq.;"take"is defined in section 3(19) [16 U.S.C. §1532(19)] of FESA]. C. The California and Federal Endangered Species Acts provide mechanisms to allow for the lawful "take" of endangered species under specified circumstances when it is incidental to otherwise lawful activities. The mechanism for receiving an incidental take permit under section 10 of the Federal Endangered Species Act is known as a Habitat Conservation Plan (HCP). An equivalent under state law for non-agricultural activities is a Natural Communities Conservation Plan (NCCP) which may be prepared pursuant to the Natural Communities Conservation Planning Act [Fish and Game Code §2800 et seq.]. However, it is also possible to receive an incidental take permit under CESA without preparing an NCCP by submitting an application for a regional permit under the provisions of section 2081 of CESA, though the planning requirements of the two approaches are likely to be very similar[Fish and Game Code §2081 et seq.]. HCPs for upland species and most fish are submitted to the United States Fish and Wildlife Service (USFWS) for approval and incidental take permit issuance under FESA. NCCPs and section 2081 permit applications are submitted to the California Department of Fish and Game (CDFG) for approval. HCPs and NCCPs are implemented via an Implementation Agreement describing how funds will be managed and spent and which entity or entities will be responsible for implementing various aspects of the HCP/NCCP. D. Cities, counties, and other local government agencies may, with the approval of regulatory agencies with jurisdiction, develop a regional HCP/NCCP to provide an incidental take permit for multiple species over a relatively large area. Such plans typically extend permit coverage to individual projects in exchange for a defined mitigation fee or some other conservation action. Mitigation fee funds are pooled and used to protect habitat. E. Regional HCPs/NCCPs and other similar natural resource protection and permitting plans allow local jurisdictions to identify significant resource issues in advance, streamline permitting for projects, improve interagency coordination, and provide regulatory certainty and predictability in planning for future urban growth and DRAFT HCFA AGREEMENT,12-7-99 2 development. F. Regional HCPs/NCCPs make possible improved protection of biological resources by incorporating regional-level analysis and mitigation to protect ecological processes,an approach to conservation which may be more effective than the more common practice of separately addressing single species in small areas. Mitigation actions may be coordinated to achieve multiple objectives,such as: improving habitat connectivity; providing the local community with valuable open space; protecting important agricultural resources; and maximizing the use of limited funds. G. Other environmental regulations and regulatory agencies may be included in the regional conservation planning process to receive additional regional permits. Regulations related to wetlands impacts are among those which can be addressed concurrently with endangered species concerns. Agencies involved in regulating wetlands in the East Contra Costa County area include,USFWS, CDFG, the United States Army Corps of Engineers (USACE), the United States Environmental Protection Agency(USEPA),the California Regional Water Quality Control Board (RWQCB), and the Bay Conservation and Development Commission(BCDC). H. The Contra Costa Water District will be prevented from using its full contractual allotment of federal water from the Sacramento-San Joaquin Delta unless it can address service area impacts to upland endangered species by means such as a HCP/NCCP. I. The East Bay Regional Park District owns substantial areas of open space and habitat in the East Contra Costa County area and has an interest in coordinated planning for open space,parks, and wildlife habitat. J. The State Route 4 Bypass Authority is required to mitigate impacts to endangered species associated with construction of its Segment 2, Phase 1 Project, as well as subsequent segments and phases of the Bypass. USACE, in consultation with USFWS,has issued a permit which requires the Bypass Authority to provide funds to support the preparation of an HCP/NCCP for east Contra Costa County. The Bypass Authority receives the major part of its funding from the East Contra Costa Regional Fee and Financing Authority. East Contra Costa Regional Fee and Financing Authority funds are generated by developer fees in the cities of Antioch, Brentwood, Oakley, and Pittsburg and in unincorporated areas of eastern Contra Costa County. K. The member agencies acknowledge that the recently incorporated City of Oakley, once it has an opportunity to consider this matter, may have an interest in participating in the development of an HCP/NCCP. In general,the member agencies anticipate no objection to including the City of Oakley in the HCPA, should such inclusion be proposed. 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The planning area boundary lies west of the Marsh Creek and Kirker Creek watersheds in the vicinity of the City of Clayton, following a section line to include the eastern portions of that city. The planning area boundary also departs very slightly from the watershed line in the vicinity of the Concord Naval Weapons Station to avoid small areas of the City of Concord,which lie on the east side of the ridge. The approximate size of the HCPA planning area is 185,000 acres. The HCPA shall consider expanding the HCPA planning area in the future to include all or portions of the sphere of influence of the City of Clayton, should during development of the HCP/NCCP the City of Clayton make such request of the HCPA. The HCPA shall also consider developing the HCP/NCCP to accept mitigation fee funds from areas outside of the HCPA Planning Area and not covered pen-nits issued in conjunction with the HCP/NCCP. Should any member agency with land use planning authority withdraw from participation in the HCPA,the planning area boundary shall be modified to exclude areas over which the withdrawing agency has exclusive land use planning authority. Areas subject to cooperative land use planning by more than one agency, such as areas outside a city limits but within a city sphere of influence, shall remain within the HCPA planning area unless all agencies with land use planning jurisdiction in that area withdraw from the HCPA. Development of an HCP/NCCP can be greatly simplified if habitats which border channels of the Sacramento-San Joaquin Delta (Delta) are not included in the permitting process. Permitting for impacts to such shoreline habitats would require consideration of the complicated endangered species and habitat issues in the Delta. Member agencies therefore anticipate excluding Delta habitats from the permitting process. 5. 12ecision-making, An Executive Governing Committee(EGC)comprised of elected representatives from each member agency shall provide oversight of and direction to the HCPA. Each member agency will have one elected representative and one elected alternate from their governing board or council on the EGC. The EGC will elect a Chair and Vice-Chair. All decisions will be made according to the voting procedures set forth in paragraph 6, except as otherwise specified in this paragraph or in paragraphs 15, 18,or 20. The EGC may act directly or through a subcommittee established by a majority vote. The meetings of the EGC shall be open to the public, noticed,and conducted in accordance with the Brown Act,Government Code section 54950 et seq. The EGC shall appoint a secretary,who shall cause a written record of all meetings to be kept and shall, as soon as possible after each meeting, cause a copy of the written record to be forwarded to each member agency for distribution to its representatives. Staff representatives from each member agency shall coordinate and manage the HCPA planning process under the direction of the EGC. The Contra Costa County DRAFT HCPA AGREEMENT,12-7-99 5 Community Development Department shall take the lead role in this regard and shall serve as the Coordinating Agency for the HCPA. The EGCshall receive advice on the planning process from one or more advisory committees formed under a Public Outreach and Involvement Program. 6. Votinia-Procedures. When necessary, a vote shall be taken according to the provisions of this paragraph. A majority of the voting member-representatives on the EGC shall constitute a quorum for the transaction of business, except that less than a quorum may adjourn meetings from time to time. A majority vote of a quorum of voting member-representatives on the EGC is required to render a decision when votes are taken. All voting shall be conducted in public, except where otherwise authorized by law. All other voting procedures may be formulated in the Administrative Procedures adopted by the EGC (see subparagraph 7k). The member agencies' representatives on the ECG with land use planning authority, i.e., the Cities of Antioch, Brentwood, Clayton, and Pittsburg and Contra Costa County, shall have decision-making authority and one vote each on all matters to be resolved by the HCPA. The Contra Costa Water District shall have decision-making authority and its elected representative shall have one vote on administrative matters, but shall not have decision-making authority or a vote on land use policy matters. Administrative matters on which the Contra Costa Water District may vote include, but are not limited to, the selection of consultants, the expenditure of HCPA funds, the management of HCPA liability, and the management of the Public Outreach and Involvement Process described in paragraph 11. The Contra Costa Water District may also vote on matters directly related to its operations, authority, and legal responsibilities, including matters that could impact its Central Valley Project contract. Land use policy matters on which the Contra Costa Water District may not vote include, but are not limited to, the designation of impact fees, mitigation measures, habitat acquisition areas, and permit coverage areas. Should a dispute arise as to whether the Contra Costa Water District may vote on a matter before the HCPA, the EGC members representing agencies with land use planning authority shall resolve the dispute by a vote, a simple majority being necessary to prevent a vote by the Contra Costa Water District. The East Bay Regional Park District shall be able to provide input on all decisions,but shall have no decision-making authority or voting ability. TheState Route 4 Bypass Authority shall have no decision-making role in the HCPA. The member agencies acknowledge that the recently incorporated City of Oakley, once it has an opportunity to consider this matter, may have an interest in participating in the development of an HCP/NCCP. In general,the member agencies anticipate no objection to including the City of Oakley in the HCPA, should such inclusion be proposed. If the City of Oakley were to join the HCPA, member agencies anticipate that it would have decision-making and voting ability equivalent to that of the other land use planning agencies. 7. Duties of the Executive Governing,Committee. The duties of the EGC shall include DRAFT HCPA AGREEMENT,12-7-99 6 the following: a) The EGC shall govern and operate the HCPA. b) The EGC shall provide policy direction in the preparation of the East Contra Costa County HCP/NCCP and related documents. C) The EGC shall approve a budget for developing the HCP/NCCP submitted by member agency staff, and shall ratify all checks, warrants, and related documents used in the expenditure of HCPA funds since the previous meeting. d) The EGC shall approve the retention of agents and consultants, and execution of any agreements and contracts with regulatory agencies and other outside parties necessary to develop the HCP/NCCP. e) The EGC shall oversee compliance with the California Environmental Quality Act (CEQA), the National Environmental Policy Act (NEPA), and other laws applicable to the development of an HCP/NCCP. EGC oversight of compliance with CEQA shall include oversight of the HCPA as the lead agency under CEQA for the development of the HCP/NCCP. f) The EGC shall consider approval of the HCP/NCCP, the Implementation Agreement for the completed HCP/NCCP,and related documents before such documents are submitted to the individual member agencies with land use planning authority for final approval. g) In the event that one or more individual land use planning agencies does not approve the final HCP,the EGC shall determine whether to modify the HCP and make a second attempt at approval by all land use planning agencies, or to modify the HCP so that it applies only to the land use planning agencies which approved it originally. h) The EGC shall adopt a conflict of interest code for the HCPA. i) The EGC shall perform other decision-making functions for the HCPA as provided by this Agreement or as are necessary for developing an HCP/NCCP. j) The EGC shall meet approximately quarterly. k) The EGC may adopt bylaws, rules for conduct of the meetings, and other administrative procedures as needed. The administrative procedures of a member agency may be adopted for the Authority by the EGC. 1) The EGC shall manage any claims and litigation brought against the HCPA or its member agencies. 8. Coordinating A2ency., The Contra Costa County Community Development Department shall serve as the Coordinating Agency for the HCPA. The Coordinating Agency shall assist the EGC and the other member agency staff by supervising and coordinating the daily operations of the HCPA. The HCPA shall reimburse reasonable costs incurred by the Contra Costa County Community Development Department in serving as the Coordinating Agency, including costs associated with the services of other Contra Costa County departments and other outside agents that assist the Contra Costa County Community Development as it performs these duties. The Contra Costa County Community Development Department shall not request nor DRAFT HCPA AGREEMENT,12-7-99 7 receive reimbursement for other costs associated with participation in the HCPA, such as costs to represent the interests of Contra Costa County at meetings. Specific duties of the Coordinating Agency shall include: a) Noticing meetings; b) Preparing or supervising the preparation of meeting materials; C) Serving as a point of contact for the public; d) Serving as a point of contact for federal, state, and regional regulatory agencies and coordinating interaction with these agencies; e) Supervising the daily operations of consultants; f) Approving consultant invoices for payment within 60 days after receipt of a complete invoice and forwarding such invoices to the EGC for subsequent ratifications; g) Coordinating the implementation of the Public Outreach and Involvement Program; h) Submitting itemized invoices to member agency staff documenting the costs incurred in performing the duties of Coordinating Agency. 9. Duties of member agency ataff, Staff representatives of member agencies,with staff of the Coordinating Agency taking the lead role, shall have primary administrative responsibility for the implementation of this Agreement. Specific duties of member agency staff shall include the following: a) Serve as the staff of the EGC except as provided otherwise in this Agreement; b) Negotiate a Memorandum of Agreement with the federal and State resource agencies responsible for endangered species regulation for final approval by the EGC; C) Prepare a Request for Proposals for preparation of the HCP/NCCP and any other related documents for final approval by the EGC, solicit proposals, review proposals,recommend a consultant and negotiate an agreement with the selected consultant for final approval by the EGC; d) Prepare and update a budget for developing the HCP/NCCP and any other related documents for approval by the EGC,manage the consultant contract, monitor progress towards the HCPA objective and compliance with any deadlines, apply for and receive grants as authorized by the EGC, review invoices submitted by the Coordinating Agency and the Treasurer and Controller and recommend EGC ratification of such invoices to assure payment within 60 days after receipt of a complete invoice,provide direction to consultants, and present the draft HCP/NCCP document to the EGC for inititaion of the approval process. e) Develop and implement a public outreach and involvement program with oversight from the EGC and nominate participants in any standing advisory committees for approval by the EGC. f) Develop the Implementation Agreement for the completed HCP/NCCP for approval by the EGC. DRAFT HCPA AGREEMENT,12-7-99 8 g) Provide periodic updates on the development of the HCP/NCCP to the governing boards and councils of member agencies, as directed by the EGC. h) Prepare a proposed Conflict of Interest Code for adoption by the EGC. 10. HCPA Treasurer and Controller. The Director of the Contra Costa County Community Development Department shall serve as the Treasurer and Controller for the HCPA and, as such, shall have the powers, duties, and responsibilities specified in section 6505.5 of the Law. The HCPA Treasurer and Controller shall appoint such other officers and employees as it may deem necessary to perform said powers, duties, and responsibilities, subject to the approval of the EGC based on a recommendation by the member agency staff, and may retain independent counsel, consultants and accountants. Each public officer or person who has charge of, handles, or has access to any property of the HCPA, shall file an official bond in the amount of$25,000 as required by section 6505.1 of the Law; provided that such bond shall not be required if the HCPA does not possess or own property or funds with an aggregate value of greater than $500.00. The HCPA Treasurer and Controller shall be the depository of and have custody of all funds collected under this Agreement. The HCPA Treasurer and Controller shall deposit all funds collected under this Agreement with the Treasurer of Contra Costa County. The HCPA shall reimburse administrative costs incurred by the Contra Costa County Community Development Department in serving as the HCPA Treasurer and Controller,including costs associated with the services of other Contra Costa County departments, including the County Auditor, and other outside agents that assist the Contra Costa County Community Development as it performs these duties. The HCPA Treasurer and Controller, with the assistance of the County Auditor and Treasurer, as deemed necessary by the HCPA Treasurer and Controller, shall: a) Receive contributions from members agencies,and grants,contributions, and donations of property, funds, services and other forms of assistance from any source, and provide receipts in exchange therefor, and be responsible for the safekeeping and proper disbursement thereof. b) Establish and maintain such funds.and accounts as may be required by good accounting practices, and provide a report in writing on a quarterly basisto the EGC, and the member agencies,which report shall describe the amount of money held by the Treasurer and Controller, the amount of receipts since the last such report, and the amount paid out since the last such report; C) Provide strict accountability of all funds received and disbursed by the HCPA, as required by Government Code section 6505, and keep the books and records of the HCPA open to inspection at all reasonable times by member agencies and their representatives; d) Pay, by check signed by not less than two individuals with signatory authority approved by the EGC, all obligations of the HCPA when due and as recommended for payment by member agency staff,including the costs of the audit required by subparagraph f, including retention or employment of certified public accountants or public accountants; e) Invest,pursuant to section 6505.5 of the Law, any money that is not required DRAFT HCPA AGREEMENT,12-7-99 9 for the immediate necessities of the HCPA, in any instrument, declared by state law,including but not limited to Government Code section 53601,to be permissible as an investment for any local public agency in the State of California, and as the Treasurer and Controller determines is advisable in accordance with established policies and procedures, or deposited in such bank or banks as the EGC may designate for that purpose,with all interest to be credited in proportion to the contributions described in paragraph 14; f) Make, or if required by section 6505.6 of the Law, contract with a certified public accountant or public accountant to make, an annual audit of the accounts and records of the HCPA as required by section 6505 of the Law every year during the term of this Agreement,which audit shall be conducted in accordance with generally accepted auditing standards and with the minimum requirements prescribed by the State Controller for special districts under Government Code section 26909 of the State of California, and, if required by sections 6505.6 of the Law,provide a report on said audit to the member agencies, which shall be filed as public records with each of the member agencies,including the County Auditor/Controller of the'County of Contra Costa within 12 months of the end of the fiscal year or years under examination. Unless and until changed by the EGC, the fiscal year of the HCPA shall be the period from July 1 each year to and including the following June 30, except for the first fiscal year which shall begin on the date this Agreement becomes effective and continue through the following June 30. g) Submit itemized invoices to member agency staff documenting the costs incurred in performing the duties of HCPA Treasurer and Controller. 11. Public Outreach and Involvement Program. The HCPA shall conduct a Public Outreach and Involvement Program to provide a structured process for disseminating information and collecting input on the development of the HCP/NCCP. The Public Outreach and Involvement Program shall include public workshops/hearings and one or more standing advisory committees with clearly defined membership and operating procedures. Member agency staff shall propose members of the advisory committees and the EGC shall approve members and operating procedures. The advisory committees to be formed by the HCPA may include a Policy Advisory Group, a Technical Advisory Group, and a Financial Advisory Group. Advisory groups formed by the HCPA shall provide recommendations to the EGC and to member agency staff on topics related to development of the HCP/NCCP. Member agency staff and the Coordinating Agency shall support and manage the advisory group process to assure that it is effective,responsive, and efficient. 12. Anticipated Schedule.The HCPA will comply with the following schedule(as it may be revised in writing by member agencies) to develop the HCP/NCCP: Spring 2000 Hire consultant and initiate Public Outreach and Involvement Program. DRAFT HCPA AGREEMENT,12-7-99 10 Winter 2001 Prepare the Administrative Draft HCP/NCCP. Summer 2001 Circulate the Draft HCP/NCCP and Draft CEQA documents. Fall 2001 Land use planning agencies consider adopting Final HCP/NCCP, approving the Implementation Agreement,and completing the CEQA process. Summer 2002 Regulatory agencies approve final HCP/NCCP and Implementation Agreement, complete National Environmental Policy Act (NEPA) process, and issue regional incidental take permit and/or other regional permits. 13. Cost to Prepare the HCP/NCCP. The estimated cost to prepare the East Contra Costa County HCP/NCCP is $650,000. This estimated cost, and an additional ten percent reserve fund of $65,000 for contingencies, shall be divided among the member agencies and other funding sources according to the cost allocations set forth in paragraph 14 of this Agreement. The cost estimate includes the anticipated costs for consultants, for the Coordinating Agency and the Treasurer.and Controller, and for compliance with CEQA and NEPA. The costs of including wetlands permitting in the planning process will need to be determined by the HCPA and considered if and when the HCPA approves such work. To the extent that planning for wetlands permits can be compatible with planning for endangered species,including wetlands permits should have a minor cost. Except for the anticipated costs of the Coordinating Agency and the Treasurer and Controller, as defined under paragraphs 8 and 10 of this Agreement, the cost estimate provided in this paragraph does not include the member agency staff time that will be necessary to attend meetings and otherwise assist with the development of the HCP/NCCP. Such staff costs shall be considered in-kind contributions and not funded through this Agreement. 14. Allocation of Costs. The chart below shows how the estimated costs to develop the HCP/NCCP will be allocated, lists the funding contributions required of member agencies and expected from other sources, and identifies the amount of additional funds needed. Beyond the estimated project cost of$650,000, the HCPA shall also secure fimding for a ten percent contingency reserve of $65,000. CCWD shall contribute one-half or $32,500 of the contingency reserve, in addition to its contributions described in the chart below. DRAFT HCPA AGREEMENT,12-7-99 11 Funding Source Funding Amount Percentage of Estimated Project Cost City of Clayton $10,000 1.5% CCWD $325,000 50% State Route 4 Bypass $100,000 15.4% Authority* Committed Project Funds $4355000 67% Additional Project Funds Needed $2155000 33% From Other Sources Estimated Project Cost $650,000 100% The funding contribution of the State Route 4 Bypass Authority shall be made on behalf of the Cities of Antioch,Brentwood,and Pittsburg and Contra Costa County. 15. PUment of Costs. Contributing member agencies shall deposit the amount specified in the preceding paragraph with the HCPA Treasurer and Controller. One-half of each member agency's deposit is due upon its execution of this Agreement. The remaining one-half of the deposit will be due on July 1, 2001. Contributions to the contingency reserve shall be due from CCVvrD upon notice from the Treasurer and Controller that project funds are depleted and HCPA costs remain. The funding contributions required of the State Route 4 Bypass Authority shall be provided on the behalf of Contra Costa County and the Cities of Antioch,Brentwood, and Pittsburg . The amount of funding required of the State Route 4 Bypass Authority shall not change if one or more agencies on who's behalf the funds are contributed withdraws from the HCPA. Should the City of Oakley join the HCPA, member agencies anticipate that no additional funding contribution would be required as a portion of the funds already committed to HCPA by the East Contra Costa County Fee and Finance Authority would be considered as the contribution of the City of Oakley. Subject to the provisions of paragraph 18,member agency funding contributions in excess of those described in paragraph 14 shall require an amendment to this Agreement. Funds remaining after termination of this Agreement shall be refunded in proportion to the amount contributed by each member agency within six months of the termination date. 16. Outside Fundinp- Sources. The HCPA intends to raise additional funds by seeking grants and other contributions from public and private sources. The amount of additional funds needed to pay the estimated project cost of$650,000 is $215,000, but$32,500 more is needed to fund one-half of the contingency reserve. The HCPA DRAFT HCPA AGREEMENT,12-7-99 12 -shall attempt to obtain additional funds in excess of this amount to provide a reserve and potentially reduce member agency's costs. There are a number of potential outside funding sources to support the development of the HCP/NCCP,including the following primary examples: a) Federal funds for conservation planning which are passed through to state government and the CDFG for disbursement in accordance with section 6 of FESA. b) Conservation planning funds which may be appropriated by the California Legislature to support development of NCCPs. C) Grant programs administered by USEPA, including the State, Local, Tribal Wetlands Grant Program which supports planning for wetlands conservation. d) Grants from the National Fish and Wildlife Foundation and many other private organizations. Outside funding sources may be pursued after local governments have reached agreement to develop an HCP/NCCP, and perhaps after work on the project has commenced. Including wetlands permitting in the planning process would expand the range of available funding sources. 17. Strategy for addressing funding shortfalls. The EGC shall determine whether or not to initiate development of the HCP/NCCP prior to the procurement of the outside funds needed to pay the estimated project cost of$650,000. If the EGC does elect to begin the planning process before all needed funds are raised, the EGC shall develop a strategy for reducing the scope of the HCP/NCCP project in the event that outside funds are not secured. The purpose of the contingency strategy will be to define options for producing a useful product with less than the estimated full funding. The HCPA shall not enter into binding agreements or contracts requiring payment of funds in excess of HCPA assets at the time the agreement or contract is being considered. 18. Liabilitv.contribution,and indemnity.Under section 895.2 of the Government Code, each of the member agencies are jointly and severally liable upon any liability which is imposed upon the HCPA or upon any of the entities for injury caused by negligent or wrongful act or omission occurring in the performance of this Agreement. Pursuant to sections 895.4 and 895.6 of the Government Code,each member agency, except the East Bay Regional Park District and the City of Claytonwhich shall have no liability, except for liability that arises from the intentional or wilful misconduct of its own Directors,officers, employees and agents, agrees to bear one-fifth of such liability. Each member agency except the East Bay Regional Park District and the City of Clayton shall be entitled to receive contribution from and required to contribute to the other member agencies to the extent described above. No member agency shall be responsible for any liability in excess of the portions described above except as follows: the Cities of Antioch,Brentwood, Clayton, and Pittsburg, Contra Costa County,Contra Costa Water District,the East Bay Regional Park District, and the State Route 4 Bypass Authority shall defend,indemnify, save, and hold harmless the HCPA and every other agency against such liability to the extent that it arises from the intentional or wilful misconduct of its own Directors, officers, employees DRAFT HCPA AGREEMENT,12-7-99 13 and agents. The cost of defending against such liability, including reasonable attorneys fees, shall be allocated in accordance with the cost allocations described in this paragraph 19. Cooperation. All the member agencies agree that the execution of this Agreement and their respective monetary contributions are an expression of intent to cooperate in the preparation and completion of an HCP/NCCP and each agrees not to unreasonably withhold its consent to the implementation and accomplishment of the overall purpose for which this Agreement is made. However,signing this Agreement does not bind any agency to sign future related agreements including an agreement to implement the HCP/NCCP. 20. Termination. This Agreement shall terminate when the HCP/NCCP is approved by the U.S.Fish and Wildlife Service,the California Department of Fish and Game,and every other regulatory agency that needs to approve it, and all amounts owing under this Agreement have been paid, including payment of refunds as described in paragraph 15. Said paragraph 15, to that extent, and paragraphs 18, 24, 30 and 32 shall survive the termination of the Agreement. Before the HCP/NCCP is approved, a separate Implementation Agreement shall describe the implementation of the HCP/NCCP and any future cooperation among member agencies. Member agencies may withdraw from participation by vote of their governing board or council and upon 30 days written notice to other member agencies. Payments on deposit will remain in the HCPA account,however no additional payments will be required of the withdrawing agency, except for payments required under paragraph 18 and resulting from liability incurred while the withdrawing agency was still party to this Agreement. The withdrawing agency will be eligible for refunds only as specified in paragraph 15 and upon regulatory approval of the HCP/NCCP and consequent termination of this Agreement. 21. Amendment. This Agreement may be amended only by a written agreement approved by a unanimous vote by the member agencies. 22. Effective Date, This Agreement shall become effective upon approval by all contributing agencies, or on June 30, 1999, if at least four member agencies have approved the Agreement. 23. Execution. This Agreement may be executed in several counterparts, each of which shall constitute one and the same instrument and shall become binding on the parties when at least one copy hereof shall have been signed by all parties hereto. In approving this Agreement, it shall not be necessary to produce or account for more than one such counterpart. 24. Dis1211te Resolution. The parties shall first submit any dispute concerning their obligations or duties under this Agreement to mediation to be conducted by a mutually acceptable professional mediator. In the event that the parties are unable to resolve any such dispute in the mediation process, the parties may then proceed DRAFT HCPA AGREEMENT,12-7-99 14 with such remedies in law or equity that they may have. Each party shall bear its own legal fees and costs throughout the process except as is otherwise specified in paragraph 18. 25. 1 Notices. Notices authorized or required to be given pursuant to this Agreement shall be in writing and shall be mailed, faxed or delivered during regular business hours to the addresses specified below adjacent to the signatures. 26. Headings. All headings contained herein are for convenience of references only and are not intended to define or limit the scope of any provision of this Agreement. 27. Severance. Should any part, term or provision of this Agreement be determined by the courts to be illegal or in conflict with any law of the State of California, or otherwise be rendered unenforceable or ineffectual, the validity of the remaining parts, terms or provisions hereof shall not be affected thereby. 28.No Third Party Benefits. . It is not intended that any person or entity occupy the position of intended third-party beneficiaries of the obligations assumed by any party under this agreement. 29. Entire Agreement..This Agreement contains the entire understanding of the HCPA and the member agencies relative to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings or agreements. 30. waiver of Personal Liability. No Commissioner, Supervisor, Councilmember, Director, officer, employee, agent or consultant of any of the member agencies is individually or personally liable for any claims, losses, damages, costs, injury, or liability of any kind, nature and description arising from actions of any of the member agencies under this agreement. 31. Successors and Assigns. This agreement is binding upon and inures to the benefit of the successors to the member agencies. None of the member agencies may assign any right or obligation hereunder without the express written consent of all of the others. 32. California Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. The venue for any legal action pertaining to this Agreement shall be Contra Costa County, California. 33. Representation by Counsel. The member agencies hereto each acknowledge that they have been represented in the negotiations for, and in the preparation of this Agreement by counsel of their own choosing;that they have read this Agreement or have had it read to them by their counsel; and that they are fully aware of and understand its contents and its legal effect. Accordingly, this Agreement shall not be construed against any party, and the usual rule of construction that an Agreement is construed against the party which drafted it shall not apply. DRAFT HCPA AGREEMENT,12-7-99 15 34. Responsibility of Member Agencies for Staff Compensation. Participants in the EGC and the Public Outreach and Involvement Program, employees of member agencies,including employees of the Contra Costa County Community Development Department serving as the Treasurer, Controller, or Coordinating Agency for the HCPA, shall not receive any compensation from the HCPA for serving as such,but each shall be entitled to payment of salary earned, and reimbursement of any expenses actually incurred, in connection with serving as such from his or her respective employing member agency to the extent determined by such member agency on whose behalf they are participating. All such amounts shall be paid by such member agency, and the HCPA shall not be responsible for payment of such salary and expenses, except as expressly set forth in this Agreement, and except for payments described in paragraphs 8 and 10 to the Contra Costa County Community Development Department to reimburse the salary and expenses of its employees in their capacity as Coordinating Agency and Treasurer and Controller. DRAFT HCPA AGREEMENT,12-7-99 16 City of Antioch By: P.O. Box 130 City Manager Antioch, CA 94509 Fax (925) 779-7003 City of Brentwood By: 708 Third Street City Manager Brentwood, CA 94513 Fax (925) 634-6930 City of Clayton By: 6000 Heritage Trail City Manager Clayton, CA 94517 Fax (925) 672-4917 City of Pittsburg By: P.O. Box 1518 City Manager Pittsburg, CA 94565 Fax (925) 439-0527 Contra Costa County By: 651 Pine Street County Administrator No. Wing, 4tI Floor Martinez, CA 94553-1229 Fax (925) 335-1299 Contra Costa Water District By: P.O. Box H2O General Manager Concord, CA 94524-2099 Fax (925) 688-8303 East Bay Regional Park District By: 2950 Peralta Oaks Court General Manager P.O. Box 5381 Oakland, CA 94605-0381 Fax (510) 569-1417 Dmc/rlr/JK S:\C0NSERV\J0HN\HCPAGREE.D99 DRAFT HCPA AGREEMENT,12-7-99 17 - - "p ZP 0 NmA 7- n c cz n. G SY cr .0% CD (D (P o o w 0A. 0 c 0 0 CL 0 0 on _ tp 0 0 Z 10 0. SSO 0 % 0 0 0 0 (ID 0 S C: 0 0 ip;!:$ 4 z z <,D tz I- S. 0. 0 0 -0-0, G':-:Z ti MZ o Wz to 0. C_D_ 0 0 40 CL o 0 C*)-0 CD - 0 --% (:).. Z Q. 0 z % 0, 0) 0 0 CL 00 0 C-11- (p .0 om A OPP 0 0 CD S. 4 C', cl Z- Ims 0 TP 0 q.(p o (D 0. to C: C) is. -:3 U)cr 70 0 ,0 (o o22 0 0 o 75 - Im 0 4 -,o ?g'a�S'' 99 %q 0 Cp 0) CD CD CD a I C) to 0 CD e-- 0 0 tn 0 0 0 00%4 0 0 TP C D C:,:3 CD CD z 9- ti: 0 010 0,0 40 CD 0- S ID 0 0 ?p 0 la o s ::5 4ft4ft OD 4 Cp 0 0 4 0. G q- ;o4 CD go CO. 0 0 :3 ID 0,:�L C-) C) '604. 0, r_- 0o .t. 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