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HomeMy WebLinkAboutMINUTES - 12192006 - D.1 Contra Costa TO: BOARD OF SUPERVISORS °�sr; �, "`� County FROM: TRANSPORTATION WATER AND INFRASTRUCTURE COMMITTEE Supervisor, Federal Glover, Chair Supervisor, Mary N. Piepho P15 DATE: December 19, 2006 SUBJECT: APPROVAL OF THE EAST CONTRA COSTA COUNTY HABITAT CONSERVATION PLAN SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION RECOMMENDATION Take the following actions related to the Final East Contra Costa County Habitat Conservation Plan/Natural Community Conservation Plan (HCP/NCCP) released on October 10, 2006: a) Acting as the Board of Supervisors of the County and as the Board of Directors of the Contra Costa County Flood Control and Water Conservation District ("Flood Control District"), ADOPT findings pursuant to the requirements of the California Environmental Quality Act (CEQA) and related to the Final Environmental Impact Report (EIR) for the HCP/NCCP, as set forth in Exhibit A attached hereto and incorporated herein by reference. b) Acting as the Board of Supervisors of the County and as the Board of Directors of the Flood Control and District, APPROVE the HCP/NCCP, as revised in the document entitled "Corrections and Updates to the HCP/NCCP, December 19, 2006" (Exhibit B); c) AUTHORIZE the County Administrator and the Chief Engineer of the Flood Control District or their respective designees, to execute the "Implementing Agreement for the East Contra Costa County Habitat Conservation Plan/Natural Community Conservation Plan" (Exhibit C); d) AUTHORIZE the County Administrator or his designee to execute the "Joint Exercise of Powers Agreement Creating the East Contra Costa County Habitat Conservancy"(Exhibit D) to form the entity that will oversee implementation of the HCP/NCCP and SCHEDULE appointment of the County's representative to this entity for the Board's meeting on January 9, 2007. e) DI RECT the Community Development Director and the Chief Engineer of the Flood Control District, or their respective designees, to each file a Notice of Determination with the County Clerk. CONTINUED ON ATTACHMENT: X YES SIGNATURE RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMJATI F OARD COMMITTEE APPROSIGNATURES : SU ERVIS R FEDERAL GLOVER OR MARY N. PIEPHO ACTION OF BOARD ON APPROVED AS RECOMMENDED )COTHER VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A TRUE AND UNANIMOUS (ABSENT CORRECT COPY OF AN ACTION TAKEN AND ENTERED ON THE MINUTES OF THE BOARD AYES: NOES: OF SUPERVISORS ON THE DATE SHOWN ABSENT: ABSTAIN: Contact: John Kopchik (925-335-1227) ATTESTED cc: Community Development Department (CDD) JOHN CULLEN, CLERK OF County Administrator THE BOARD OF SUPERVISORS County Counsel ND COUNTY ADMINISTRATOR Public Works Department Agricultural Commissioner BY EPUTY c December 19, 2006 Report on the HCP/NCCP Page 2 of 5 FISCAL IMPACT No commitment of funding is required from the General Fund. The HCP/NCCP is a regional conservation and mitigation plan for biological resources that would provide local agencies such as the Oounty and Flood Control District the authority and responsibility for issuing state and federal endangered species permits to development projects they'perform themselves or, in the case of the County, that are performed by others but approved by the County. The County and the Flood Control District would, in conjunction with the Cities of Brentwood, Clayton, Oakley, and Pittsburg and East Bay Regional Park District (EBRPD), have responsibility for performing the conservation actions required in the HCP/NCCP. Pursuant to the HCP/NCCP, a series of impact fees would be established to cover the costs related to mitigation (approximately $200 million in developer fee revenue is projected over the 30-year life of the HCP/NCCP). Non-mitigation conservation expenditures would be funded by a maintenance of effort by public agencies that have funded conservation in this area in the past (e.g., EBRPD, Coastal Conservancy, Wildlife Conservation Board) and by grants from funding sources that are reserved for HCPs and NCCPs (e.g. the U.S. Department of the Interior announced a $6.5 million grant in September for HCP/NCCP land acquisition in east Contra Costa County, the U.S. Bureau of Reclamation has awarded $991,000, and Proposition 84 included $90 million for approved NCCPs statewide). The HCP/NCCP does not require establishment of a new public funding mechanism. Additional information on cost and funding is provided on page 10 of the attached introductory booklet on the HCP/NCCP and in Chapter 9 and Appendices G and H of the HCP/NCCP. If the HCP/NCCP is approved, the County will provide staff support to the joint exercise of powers authority formed to manage its implementation (the East Contra Costa County Habitat Conservancy ("Conservancy"). County staff costs will be reimbursed by the Conservancy with funds from the HCP/NCCP. BACKGROUND/REASONS FOR RECOMMENDATIONS The County has participated in the HCP/NCCP planning effort since 2001 , when it joined the East Contra Costa County Habitat Conservation Plan Association (HCPA). The HCPA was formed to manage and fund the development of an HCP/NCCP for submission to the governing boards of HCPA member agencies and ultimately to the U.S. Fish and Wildlife Service (USFWS) and the California Department of Fish and Game (CDFG). The County has been represented on the HCPA governing board, the Executive Governing Committee, since it joined. Supervisor Piepho has been that representative for the last several years and Supervisor Glover has been the alternate. The HCPA released the Final HCP/NCCP and Final EIR on October 10, 2006. Those documents are available on the web at www.cocohcp.org, on CD-ROM from the Community Development Department, and in four printed volumes available at libraries and to view or purchase at the Community Development Department office. A copy of the CD-ROM is attached. The HCPA also prepared an introductory booklet on the HCP/NCCP entitled, "Conserving Natural Lands and Sustaining Economic Development: An Introduction to the Final East Contra Costa County Habitat Conservation Plan/Natural Community Conservation Plan" (attached), which is also available on the website, on the CDs, and in print. The actions recommended by the Transportation, Water and Infrastructure Committee(TW IC) on the HCP/NCCP would complete the County and Flood Control District's participation in the planning phase of the effort and provide the approvals necessary from the County and the Flood Control District to begin implementing the HCP/NCCP. Below please find additional background on the local approval process, on the actions recommended by the TW IC, and on the rationale for the recommendation. Local Approval Process: A summary of the local approval process for the HCP/NCCP is provided below. Additional information on the history of the planning effort and key steps in the planning process is provided on pages 4 and 5 of the introductory booklet. The introductory booklet also provides a summary of the extensive public involvement process that was conducted for the HCP/NCCP, including monthly meetings of the stakeholder committee formed to advise on the effort (HCPA Coordination Group), regular public meetings of the HCPA Executive Governing Committee, and numerous workshops and presentations to_HCPA member agencies and other interested organizations. December 19, 2006 Report on the HCP/NCCP Page 3 of 5 November 8: The HCPA Executive Governing Committee approved the following key actions: • Certified the EIR and approved findings and a mitigation monitoring and reporting plan consistent with the requirements of CEQA. The HCPA is the lead agency under CEQA. • Approved the HCP/NCCP for submission to participating city councils, County Board of Supervisors, and East Bay Regional Park District Board of Directors. • Recommended approval of the HCP/NCCP by HCPA Member Agencies. December 2006 / City councils, County Board of Supervisors, and EBRPD Board of Directors January 2007: each meet to consider the following actions: Approval of HCP/NCCP (each agency) Approval of Implementing Agreement (each agency) Approval of joint exercise of powers agreement to form the Conservancy, which will be the HCP/NCCP Implementing Entity(city councils and County Board of Supervisors only) • Adoption of CEQA findings as a responsible agency under CEQA (each agency) Tentative meeting dates for these agencies to consider the above actions: City of Brentwood: January, 2007 City of Clayton: December 19, 2006 City of Oakley: January 8, 2007 City of Pittsburg: January 15, 2007 County Board of Supervisors: December 19, 2006 EBRPD: January 9, 2006 If any local agency does not approve the HCP/NCCP, additional approval steps by the remaining parties would be necessary and further environmental. review might be necessary if non-approval required a substantial revision of the HCP/NCCP. January 2007: Conservancy Governing Board meets and considers approving HCP/NCCP and Implementing Agreement. Early 2007: CDFG and USFWS consider approving Implementing Agreement and issuing permits to local agencies. USFWS will consider these actions pursuant to the requirements of the National Environmental Policy Act (NEPA) and will be issuing a Federal Register Notice announcing the availability of the Environmental Impact Statement (EIS) soon. 90 days after issuance of permits: Deadline for Cities/County to adopt Implementing Ordinance, if permits are to remain valid (model Implementing Ordinance is Exhibit C to Implementing Agreement). The Ordinance would put into effect the fees necessary under the HCP/NCCP. Explanation of the Actions Recommended by the TWIC: Additional background on each recommendation is provided below. a) Acting as the Board of Supervisors of the County and as the Board of Directors of the Contra Costa County Flood Control and Water Conservation District ("Flood Control District"), ADOPT findings pursuant to the requirements of the California Environmental Quality Act (CEQA) and related to the Final Environmental Impact Report (EIR)for the HCP/NCCP, as set forth on Exhibit A, attached hereto and incorporated herein by reference. CEQA requires that agencies must find for each significant impact identified in an EIR that the project has been changed or mitigated to December 19, 2006 Report on the HCP/NCCP Page 4 of 5 reduce the impacts to a less than significant,level or that there are overriding considerations that make mitigation infeasible. As indicated in the proposed findings (attached to this report as Exhibit A) and in the EIR, significant impacts identified for the HCP/NCCP all belong to the first category and may be mitigated to a less than significant level. All significant impacts identified for the HCP/NCCP relate to the assembly, restoration and operation of the HCP/NCCP preserve system and mitigation measures would be the responsibility of the HCP/NCCP Implementing Entity. b)Acting as the Board of Supervisors of the County and as the Board of Directors of the Flood Control District APPROVE the HCP/NCCP as revised in the document entitled "Corrections and Updates to the HCP/NCCP, December 19, 2006" (Exhibit B). In this recommendation,the Board is being asked to approve the two volumes of the Final HCP/NCCP released on October 10, 2006 and Exhibit B which describes corrections and updates to the Final HCP/NCCP. c) AUTHORIZE the County Administrator and the Chief Engineer of the Flood Control District or their designees, to execute the "Implementing Agreement for the East Contra Costa County Habitat Conservation Plan/Natural Community Conservation Plan" (Exhibit C). The Implementing Agreement is an agreement among the participating cities, the County, the Flood Control District, EBRPD, the USFWS and CDFG that assigns roles and responsibilities to these parties in the implementation of the HCP/NCCP. The Implementing Agreement would require CDFG and USFW S to provide regional endangered species permits to the participating cities,the County,the Flood Control District and EBRPD, which collectively would responsible for implementing the terms of the permits. The Implementing Entity (East Contra Costa County Habitat Conservancy) to be formed by the cities and the County would have primary responsible for expending fees and other funds and for ensuring that the land acquisition, restoration, enhancement, management and monitoring requirements of the HCP/NCCP are implemented. The cities, County, Flood Control District and EBRPD would issue endangered species permits to themselves and ensure compliance with the HCP/NCCP for projects they conduct. The cities and the County would also issue endangered species permits to developers of projects approved by the cities or the County and ensure that such projects also comply with the HCP/NCCP. In addition to receiving permits for recreation and other park-related projects on lands conserved under the HCP/NCCP and managed by EBRPD, EBRPD is anticipated to be a major partner of the Implementing Entity in acquiring and managing habitat lands. d) AUTHORIZE the County Administrator or his designee to execute the"Joint Exercise of Powers Agreement Creating the East Contra Costa County Habitat Conservancy" (Exhibit D) to form the entity that will oversee implementation of the HCP/NCCP and SCHEDULE appointment of the County's representative to this entity for the Board's meeting on January 9, 2007. The Conservancy would have primary authority and responsibility for implementing the HCP/NCCP and would be charged with carrying out all the duties assigned to the Implementing Entity in the HCP/NCCP and the Implementing Agreement. In the Joint Exercise of Powers Agreement, the County will provide staff support to the Conservancy. The County has provided staff report to the HCPA during development of the HCP/NCCP. County staff costs would be reimbursed by the Conservancy with funds from the HCP/NCCP according to an annual budget approved by the Conservancy. By either the County's or the Conservancy's choosing, the source of staff support r could be changed in the future. The Conservancy would have the authority to conduct land acquisition, land management and other conservation actions directly. However, staff expects that the Conservancy will endeavor to outsource such activities to other organizations such as EBRPD, CCWD and land trusts as much as possible to take advantage of the expertise and experience held by these organizations, to avoid creating redundant government services, and to achieve cost efficiencies and an economy of scale. e) DIRECT the Community Development Director and the Chief Engineer of the Flood Control District, or their designees, to each file a Notice of Determination (NOD) with the County Clerk. The CEQA Guidelines state that responsible agencies should file a NOD when approving a discretionary action to disclose how the environmental impacts of that action were assessed and addressed. Rationale for the recommendations: Staff has regularly provided updates to the TWIC and the Board of Supervisors. On November 13, 2006, the TWIC accepted a staff report and determined to recommend approval of the HCP/NCCP to the full Board. December 19, 2006 Report on the HCP/NCCP Page 5 of 5 The goals and expected benefits of the HCP/NCCP are well-presented in the attached introductory booklet. This booklet was developed by the HCPA with the assistance and advice of the HCPA Coordination Group. It provides a concise but thorough summary of the HCP/NCCP and describes the anticipated advantages of the HCP/NCCP form a variety of perspectives. Attachments: • Introductory booklet on the HCP/NCCP! entitled, "Conserving Natural Lands and Sustaining Economic Development: An Introduction to the Final East Contra Costa County Habitat Conservation Plan / Natural Community Conservation Man" • A CD-ROM containing the Final HCP/NCCP and Final EIR. • CEQA Findings (Exhibit A) • "Corrections and Updates to the HCP/NCC, P, December 19, 2006" (Exhibit B) • "Implementing Agreement for the East Contra Costa County Habitat Conservation Plan/Natural Community Conservation Plan" (Exhibit C)'; • "Joint Exercise of Powers Agreement Creating the East Contra Costa County Habitat Conservancy" (Exhibit D) I i i I I I I I I i I I i I l Conserving Natural Lands and ECCC HCP/NCCP Sustaining Economic Development -01 41 �f1 46 4 LL� s _ k x , i v t r' The Final East Contra Costa County Habitat Conseadtion Plan/ Natural Community Conservation Plan An Introduction East Contra Costa County Habitat ConserUtiOn Plan Association City of Brentwood•City of Clayton•City of Oakley•City of Pittsburg Contra Costa County•Contra Costa Water District•East Bay Regional Park District YC Introduction Eastern Contra Costa County is a unique region where the Bay Area, Delta, and Central Valley meet. This part of the county is characterized by open space and Table of Contents beautiful vistas. the area retains a rural.lifestyle while providing houses,jobs, farms, and ranches for future generations. It features a rich landscape that is The Problem &Solution...............3 home to a number of rare plants and animals. Over 150 rare species occur in the East County area, including the San Joaquin kit fox, California red-legged frog, Goals of the Plan.............................4 Alameda whipsnake,western burrowing owl,vernal pool fairy shrimp, and Diablo Planning Process.............................5 helianthella. Conservation Objectives...............6 Preserve System...............................7 Located east of San Francisco, the area's convenient location, natural beauty, and mild climate have led to rapid population growth. Contra Costa County's Project Approvals.............................8 population is predicted to grow by 127,000 people by 2025, providing important How the Plan Will Work..............9 new housing for the Bay Area's growing workforce. A significant portion of Cost and Funding...........................10 this growth will Occur in East County in habitat for endangered species, setting Implementation...............................1 l up a potential conflict between conservation and economic development. The Final East Contra Costa County Habitat Conservation Plan/Natural Community Conservation Plan (HCP/NCCP) seeks to avoid such conflict, providing an opportunity to preserve these diverse ecosystems, unique species, and scenic landscapes while clearing regulatory obstacles to continued economic development and growth. This booklet provides an introduction to the Final East Contra Costa County HCP/ NCCP,which covers about 175,000 acres in the East County(see map below). For :. more information on this complex and ambitious plan,including the hill text of the plan documents,go to www.cocohep.org or contact staff(see back cover). SOLANO SACRAMENTO ,. HCP/NCCP Plan Area CONTRA SAN r COSTA JOAQUIN i Walnut Oakland Creek San Francisco ° Tracy v • Livermore The East Contra Costa County HCP/ A L A M E D A NCCP proposes to acquire and preserve a mosaic of natural communities in East SAN County, including grassland, oak woodland, M A T E O Not to Sate chaparral, streams, and wetlands. 2 1 •— s e The Problem The current process of obtaining development permits and implementing habitat mitigation is inefficient and can.be ineffective. Project proponents need approvals from many agencies, resulting in major delays, uncertainty,and significant Expected Benefits of the HCP/NCCP costs. Some projects spiral out of control (see diagram below). Project-by- project compliance with wetland and species regulations is not always best for To Residents the resources, emphasizing species surveys while lacking a means to effectively Protection of open space, coordinate the avoidance and mitigation requirements of distinct projects. enhancement of recreational opportunities, preservation of IHeMent Permikq IHelfe(five MitigAOH scenic landscapes and natural heritage. To the Environment ncY _ — ti Protection and enhancement #2 Agency - of 23,800 to 30,300 acres of #3 - open space to preserve species, _ . habitats,and natural systems. l To Business/Development my Streamlined endangered species T and wetland compliance; Loci #4ge greater regulatory and economic Gov't. _ certainty. II To Rural Landowners — Expanded market for willing sellers of land in eastern Contra Costa County. Long and Uncertain Process Uncoordinated and Small-Scale Mitigation To Local Governments The Proposed Solution More local control; permits for crucial infrastructure. The Final HCP/NCCP proposes a coordinated, regional approach to conservation and regulation. It would replace the current process of project-by-project permitting and fragmented mitigation,and would benefit conservation, agencies, g. and project proponents alike. Project Local Gov't. i reviews Constructed V conProject sistency & with plan. Natural Lands Proposal x Proponents pay Conserved in ° fees or provide mitigation. a Coordinated Mt. Diablo Buckwheat was thought to be y Manner extinct since 1936 It was rediscovered on Mt. Diablo in 2005. 3 `,iN';. Goals ff the"PtH Definitions Purchase, restore, and permanently protect large, interconnected and biologically rich blocks of habitat. The HCP/NCCP will pool public and HCP-A Habitat Conservation private funding to acquire land and restore natural resources. The plan will Plan is prepared to satisfy the also help to ensure that conservation acquisitions are guided by sound science, federal Endangered Species Act development avoids the best resources in the area, habitat connectivity and and to receive a permit from the wildlife corridors are maintained, and watershed and ecosystem functions (not U.S. Fish and Wildlife Service just individual wetlands and species) are protected. authorizing impacts on threatened and endangered species. Redirect money away from the process of permitting and toward the protection of resources. Rather than spending limited funds to incrementally NCCP-A Natural Community assess, negotiate, and argue mitigation requirements, applicants' funds can be Conservation Plan is prepared put to more constructive uses, such as acquiring land and restoring habitat and to satisfy the state Natural hydrologic functions. Community Conservation Planning Act and to receive Improve regulatory certainty and permitting efciency for regulators and a permit from the California applicants. The HCP/NCCP provides permits for 30 years. This gives the Department of Fish and Game development community certainty about what will be required by federal, authorizing impacts on threatened state, and local governments. At the same time, the HCP/NCCP will make the and endangered species. regulatory process more efficient for project proponents and regulatory agencies. EIR/EIS-The Environmental Provide fair compensation to willing landowners for permanent protection Impact Report is prepared of resources on their land. The HCP/NCCP will buy fee title or conservation to satisfy the California easements from willing sellers to create the preserve system. This expands the market for Environmental Quality Act. rural land and provides landowners with more economic options. The Environmental Impact Statement satisfies the National Environmental Policy Act. Play Oversew The East Contra Costa County Habitat Conservation Plan Association has developed an HCP/NCCP (Plan)that will provide regional conservation and development guidelines to protect natural resources while improving and streamlining the permit process for endangered species and wetland regulations. The Plan was developed by a team of scientists and planners with input from independent panels of science reviewers and stakeholders. Within the 174,018 acre inventory area, the Plan will provide permits for between 8,670 and 11,853 acres of development and will permit impacts on an additional 1,126 acres from rural infrastructure projects. The Preserve System to be acquired under the Plan will encompass 23,800 to 30,300 acres of land that will be managed for the benefit of 28 species as well as the natural communities that they, and hundreds of other species,depend upon. By proactively addressing the long-term conservation needs, the Plan strengthens local control over land use and provides greater flexibility in meeting other needs such as housing,transportation,and economic growth in the area. October 2001 April 1997 May 1999 June 2000 HCPA East County Task Force March 1998 East County Task Force Final East Contra Costa County begins formed to seek consensus Letter from USFWS Report(some consensus Habitat Conservation preparing on Biodiversity Study and CDFG urging around regional conservation Plan Association(HCPA) HCP/ initiated in 1995 HCP for East County planning) formed NCCP 1997 11998 1999. 2000 2001 4 0 Executive Governing Committee(EGC)Meetings 9 Coordination Group Meetings c.�xt t Fr PlanninProcess ��� -� Preparation of the HCP/NCCP began in October 2001. However, a significant amount of prior work laid the foundation for the planning process. The East HCP/NCCP By the Numbers County Pilot Study of the Alameda-Contra Costa Biodiversity Working Group led to a stakeholder consensus process in 1997 on conservation planning. Soon Size of Planning Area: 174,018 acres thereafter, the U.S Fish and Wildlife Service and California Department of Fish Number of Covered Species:28 and Game (wildlife agencies) began meeting with the local agencies to discuss the possibility Highest Point in Study Area:3,849 feet The Draft HCP/NCCP (Mt. Diablo) of a regional conservation plan for eastern attempts to reconcile Term of Regional Permits:30 years Contra Costa County to address species- existing tensions... development conflicts and as a condition Permit Holders:7(Cities of Brentwood, Clayton, Oakley,andPittsburg;Contra of future water deliveries. In 2000, the East { r AP� Costa County Flood Control and Water Contra Costa County Habitat Conservation Conservation District;EBRPD;and the Plan Association (HCPA) was formed. It 'i' County) includes the Cities of Brentwood, Clayton, y y � Amount of Development Impact Oakley, and Pittsburg; the Contra Costa Water �lj� ; Permitted:9,796-13,029 acres District; the East Bay Regional Park District "r � Amount of Land to be Protected: (EBRPD); and the County. 23,800-30,300 acres y y Number of Pages:2,125 The Plan is being prepared with the active ,,,and seeks consensus Weight of Documents: 14.3 lbs. participation of landowners; agriculturalists; on moving forward Number of Meetings Held:255 homebuilders; local, state, and federal with mutually beneficial governments; environmental groups; and solutions. business interests. These interests help guide the June 2005 planning process through a committee called ��o Draft HCP/NCCP and Draft EIR/EIS released the Coordination Group. Since its beginning � October 2005 in 2002, the group has pursued consensus as a ey Public meetings on Draft a critical component of developing a Plan that 2 Ts HCP/NCCP&Draft EIR/EIS can be approved and implemented. The Plan o0 o `ocMDecember 2005 attempts to unite often competing interests Comment deadline for Draft around a more effective and efficient approach documents to regulating and conserving natural resources. October 2006 Final HCP/NCCP and Final E1R/EIS released April 2002 October 2004 Nov/Dec 2006 1st monthly Draft Aquatic "Ihe HCPA to consider meeting of HCPA Resources adopting the EIR/EIS and Coordination Inventory, recommending HCP/NCCP; Group Draft Regional city councils,County Board (stakeholders) Permit Program of Supervisors and F,BRPD for Impacts on Board to consider adopting May 2002 Aquatic Resources HCP/NCCP lst of 4 Science October 2003 Advisory Panel NCCP Planning November 2004 Early 2007 meetings Agreement is Interagency DFG and USFWS issue January 2003 adopted white paper permits;implementation June 2002 Preliminary p released on of ECCC HCP/NCCP Preliminary Draft November 2003 coordinating begins if approved Draft Conservation Preliminary species and Resources Strategy and Working Draft wetland Inventory Impact Analysis HCP/NCCP mitigation 2002 2003 2004 2005 2006 5 C o n s e r v a t i o n Conservation Objectives . ` 4 East Contra Costa County supports numerous rare and sensitive species and the natural habitats in which they live. Under the HCP/NCCP, conservation acquisitions will focus on preserving links between existing public lands and protecting wildlife corridors. One objective of the plan will be the San Joaquin Kit Fox portection of a movement corridor for San Joaquin kit fox. In addition, numerous other plants and animals will be preserved and enhanced by the Plan. For example, this plan would protect species ! such as Alamada whipsnake, a snake with a significant portion of its range within the plan area. �} F Assembling the Preserve System will require land acquisition from willing sellers in areas that will ;rr. complement existing public land and that provide important habitat values. As the Preserve System grows it will be managed comprehensively for the benefit of species with a focus on restoration and Recurved Larkspur enhancement of natural communities. The end result will be a Preserve System of between 23,800 and 30,300 acres supporting vernal pools, native grasslands, oak woodland and savanna, streams, chaparral, and other diverse landscapes. a a, Golden Eagle Acquisition Priorities Legend i E3 Inventory Area z Urban Development San Joaquin Spearscale \ +' ❑ Existing Parks,Open Space, and Public Watershed Lands Lower Acquisition Effort Medium Acquisition Effort ® Higher Acquisition Effort California Red-Legged * Additional Key Restoration Frog — � Priorities �1 Vernal Pool Tadpole Shrimp t _ i> Brittlescale Western Burrowing Owl Western Pond Turtle Diablo Helianthella Townsend's Western Giant Garter Snake Big-Eared Bat 6 PHOTOS DEPICT'iMOST OF THE COVERED SPECIES yy; 1 � O b j e c t i v e s Preserve System In addition to its primary role of protecting species and their habitats, the Preserve System would r also support activities such as recreation, livestock grazing and, to a lesser degree, cultivated E agriculture. Recreation within the Preserve System would include opportunities for hikers, cyclists, and equestrians. Land acquisition will expand and complement existing protected areas and Tricolored Blackbird a connect to existing parks such as Mt. Diablo State Park, Black Diamond Mines Regional Preserve, and Morgan Territory Regional Preserve. Natural habitats will be improved through restoration. Native grasses, chaparral, and riparian areas - will be enhanced. Restoration projects are planned along Marsh Creek and will be coordinated with local parks and the Marsh Creek Trail. These activities will complement other resource conservation efforts including the protection of open space, viewsheds,water quality, and the Vernal Pool Fairy Shrimp natural beauty of the East County landscape. Y Conservation Biology 101 The science of conservation biology has important principles that were used to design the Brewer's Dwarf Flax proposed HCP/NCCP preserve system. Examples of these principles are represented below. Larger is Better Connectivity Minimize Edge Fewer, Larger Better ' } California Tiger Salamander Worse Monitoring,Research, and Management x Mount Diablo Fairy-Lantern The HCP/NCCP contains detailed guidelines and recommendations for management, enhancement, and restoration of habitats and landscapes throughout East County. The Plan also contains a framework and guidelines to develop a detailed monitoring and adaptive management program during the early years of implementation. this "knowledge-based" management is critical to the success of the Plan and to maintaining and enhancing the species it is trying to preserve. Silvery Legless Lizard x � _p x Showy Madia v Foothill Yellow-Legged Mount Diablo Alameda Whipsnake Swainson's Hawk Big Tarplant Frog Manzanita PHOTOS DEPICT MOST OF THE COVERED SPECIES 7 Project Approvdls The HCP/NCCP will provide streamlined permits from the U.S. Fish and Wildlife Service and California Department of Fish and Game that will allow project proponents to get their endangered species approvals at the local planning counter. The same permits can also be used for public infrastructure projects throughout eastern Contra Costa County. These permits will facilitate construction of new homes and businesses in Contra Costa County as well as needed road projects and other public infrastructure. Local agencies are pursuing similar regional permits for wetland impacts (see sidebar). ■ Development of New Homes and Businesses The Plan is designed primarily to streamline approvals for the future growth of the cities of Clayton, Pittsburg, Brentwood and Oakley, and unincorporated n��t communities in the County such as Bay Point and Byron. Up to 11,853 acres of new urban development projects can obtain their endangered species permits under the Plan. Public Infrastructure 4 � A variety of public infrastructure projects would benefit from the Plan; these include roads, flood protection projects, schools, neighborhood parks, and recreational trails (up to 1,126 acres in total). Specific rural transportation projects would receive permits under the Plan: the Buchanan Bypass, Byron Highway widening, and Vasco Road widening. Providing streamlined endangered species approvals for these needed projects would help accelerate congestion relief and support the continued economic development of the region. Covered Activities Legend M Inventory Area I F� Urban Limit Line Covered Activities Initial Urban Development Area IM Detention Basins Byron Airport Expansion Covered`Fransporration Projects _.. Land Use Designations Agricultural and Other Rural Land Uses Parks,Public Watershed Lands,and Protected Open Space ] City of Antioch-Not Covered 8 How the Plan WHI Work \ By developing a plan that addresses natural resource issues comprehensively and proactively, local agencies would increase their control over local land use issues and benefit species and project proponents alike. Rather than individually Flexible Permit Area surveying, negotiating, and securing mitigation, project proponents will receive their endangered species permits by paying a single fee (and/or dedicating land), The Plan was developed to conducting limited surveys, and adhering to limited protocols to avoid and be flexibile and to respond to minimize impacts during construction. The fees would be collected by the Plan's future development plans of Implementing Entity, combined with grants and other funding sources, and local governments. The plan used to purchase habitat lands or easements from willing sellers. These funding initially covers 8,900 acres of sources would also pay for monitoring,habitat enhancement, and management development within the current for acquired lands. . Urban Limit Line (ULL) and city limits. If the ULL or city limits shrink or grow, the Plan ---- - will provide permits for that The HCP/NCCP provides local permit control and growth as long as it does not coordinates habitat conservation from multiple sources. conflict with the conservation strategy. The plan provides permits for up to 11,853 acres of new urban development. Implementing Continued Park Developers or Entity &Open Space Wetland Permitting t3 Acquisition T , I i or Handing The local agencies developing L Funding this HCP/NCCP are also Cities/County New State& (� Permit Applications Federal Fundingpursuing similar regional Species Permits Construction of New permits for wetland impacts ` Q Homes&Businesses under the federal Clean Water New Roads& Act and state wetland and Infrastructure stream regulations. The goal _._i -- -1 ----J ---- -�� is to coordinate wetland and species requirements so that fee payments and other conservation actions provide multiple permits. Discussions have been ongoing with the U.S.Army Corps of Engineers, the State and Regional Water Boards, the U.S.Environmental Protection ' Agency,and the California Department of Fish and Game. t Coordinated and streamlined n °. wetland permits and permit programs are expected in 2007. 41 A goal of the HCPA's planning efforts is to coordinate wetland and species conservation so that fee payments and other conservation actions provide multiple permits. 9 fi ( 4 4 I k 4 v 2 t 4 � 4 � 3 k k �'�,'� k.. ���, L�: 2 z.,GA`� S � �z:.s 1t , h �'�' 4<}.:e� �5 ^ 15�q � ¢, <:� __"• .,,2 Sa' y,.-��„} <:�L�'ej�+�3 �F� ;:Y «., < `,.: yt�a„'x ti� „r, Y' q a A r kq< " hti Cost a11d F MQ Costs of Implemeting Plan The cost of implementing the HCP/NCCP during the 30-year permit term is estimated at up to$350 million. This includes the cost of land acquisition (about 2/3 of Plan costs), Funding Principles Plan administration,habitat management,habitat restoration, biological monitoring, and remedial measures during the permit term. The proportion of costs are shown below. Make Best Use of Leend Existing Resources. The g Plan will rely on existing Land Costs-63% public funding sources Site Improvements-2% and will coordinate the mitigation expenditures Land Acquisition Operation Costs(due diligence,surveys)-3% of new development and infrastructure. ® Program Administration-5% 0 Planning and Design-2% Developers Pay Their Habitat Restoration/Creation-7% Fair Share. The costs of Environmental Compliance-1% implementing the Plan 0 Preserve Management&Maintenance-10% were allocated between 0 Monitoring,Research,and Adaptive future development and Management-6% the public based on the Remedial Measures-1% premise that the costs NO Contingency Fund-2% to future development should be in proportion Funding to Implement Plan to the impacts caused by Funding to implement the Plan will come from a variety of public and private sources. An future development. important source of fimding will be fees on private development and public infrastructure Access New State and projects that receive permit coverage under the Plan. Non-fee public funding will either Federal Funds. New come from continued investment by local, state,and federal programs already funding sources of funding conservation in this area,or from existing state and federal sources reserved for areas with earmarked specifically an approved HCP/NCCP. The Plan will not increase local taxes and will allow local for approved HCPs agencies to receive state and federal funding that would otherwise pass the area by. and NCCPs could be T available once the Plan is Legend approved. Fees on New Development in Urban Cost-Share with Development Area-48% State and Federal W Wetland Impact Fees-7% Government. State ON I Fees on Rural Infrastructure-3% and federal agencies 1p Maintenance of Existing Conservation Effort will be contributing (Local)-16% approximately$55 Maintenance of Existing Conservation Effort million of new funds to (State)-7% help implement the Plan 0 Maintenance of Existing Conservation Effort and make it successful. (Federal)-1% [MEByron Airport Clear Zone Acquisitions (Federal)-2% New Wildlife Agency Funds-16% 10 68 8 klel r -3 Implementation A new organization would be created to oversee assembly and operation of the HCP/NCCP Preserve System and ensure compliance with all terms of the HCP/NCCP, permits, and Implementing Agreement. This Implementing Entity will be called the East Contra Costa County Habitat Conservancy (Conservancy) Ke Implementation Components and will be run by a Governing Board of representatives from the cities and y p the County and an Executive Director. The Conservancy will be advised by representatives of the wildlife agencies, local land management agencies, a pool Use Existing Experience. of Science Advisors, and a public advisory committee. The Conservancy may The Conservancy will rely partner with existing agencies and organizations to conduct a significant portion heavily on the experience of of its responsibilities. existing land management organizations in the study area such as East Bay Regional Park Partnerships District, California Department of Parks and Recreation, Contra Partnerships with other organizations and agencies will be critical to the success Costa Water District, and local of the HCP/NCCP during implementation. For example, groups such as East land trusts. Bay Regional Park District and land trusts already acquire conservation land in the area, and are expected to continue to do so in the future. The Conservancy Scientific Review. will partner with these groups to purchase additional land from willing sellers to A pool of Scientific Advisors assemble the HCP/NCCP Preserve System. Partnerships will also be important will be assembled to assist the for land management and monitoring. The Conservancy may contract with Conservancy design monitoring existing organizations or others to undertake land management tasks such as fence protocols, develop management repair, overseeing livestock grazing, and road maintenance. Highly technical prescriptions, and review tasks such as species monitoring may also be contracted out. Land management monitoring data. These advisors and monitoring already take place on existing public lands in the area. The will help ensure that the Plan Conservancy will closely coordinate with these projects to ensure consistent is implemented using the best techniques and to save money. available scientific data and techniques. Encourage Public Involvement. The public will be instrumental in making this HCP/NCCP a ' success during implementation. There will be opportunities to participate through periodic public meetings, a public advisory committee,and volunteering within the HCP/NCCP preserves. Y J n } " h ©Richard Paan �.I The development of the HCP/NCCP has been overseen by an Executive Governing Committee'consisting of the following individuals: Elizabeth Anello Contra Costa Water District Board of Directors Bette Boatmun Contra Costa Water District Board of Directors Will Casey City of Pittsburg City Council Bruce Connelley City of Oakley City Council Federal Glover Contra Costa County Board of Supervisors Ana Gutierrez City of Brentwood City Council(Vice Chair) Ben Johnson City of Pittsburg City Council Beverly Lane East Bay Regional Park District Board of Directors Gregg Manning City of Clayton City Council(Chair) Mary Piepho Contra Costa County Board of Supervisors(Secretary) Ted Radke East Bay Regional Park District Board of Directors David Shuey City of Clayton City Council The following individuals contributed to the development of this overview and to the Final HCP/NCCP as participants in the Coordination Group of the East Contra Costa County Habitat Conservation Plan.Association: Seth Adams Save Mount Diablo Chris Barton City of Pittsburg Tom Bloomfield and Carol Arnold Contra Costa Resource Conservation District Paul Campos and Bob Glover Home Builders Association of Northern California Gloria Cannon Mt. Diablo Audubon Mike Daley Sierra Club Bay Chapter Abigail Fateman and John Kopchik CCC Community Development Department Janice Gan and Carl Wilcox California Dept of Fish 6-Game Fran Garland Contra Costa Water District Rebecca Willis City of Oakley Jeremy Graves City of Clayton Jim Gwerder and Donna Vingo CCC Citizens Land Alliance Sheila Larsen U.S. Fish 6-Wildlife Service Kathy Leighton Byron MAC Suzanne Marr U.S. Environmental Protection Agency Brad Olson and Beth Stone East Bay Regional Park District David Reid Greenbelt Alliance Winston Rhodes City of Brentwood Cece Sellgren CCC Public Works Department Ethan Veneklasen, Bradley Brownlow, and Clark Morrison Contra Costa Council Dick Vrmeer,Jessica Olson,and Lech Naumovich California Native Plant Society Mike Vukelich and Dee Munk Contra Costa County Farm Bureau r � a 4 6• Va: East Contra Costa County Habitat Conservation Plan/Natural Community Conservation Plan 651 Pine St., 4th Floor, NW, Martinez, CA 94553 925/.335-1290 • www.cocohcp.org Cover Photos:©2005 David Zippin,Bud Widdowson,Phil Tones,Scott Hein • Printed on 100%Recycled Paper t„► EXHIBIT A EXHIBIT A CEQA FINDINGS APPROVAL OF THE EAST CONTRA COSTA COUNTY HABITAT CONSERVATION PLAN/NATURAL COMMUNITY CONSERVATION PLAN, AUTHORIZATION OF THE EXECUTION OF THE IMPLEMENTING AGREEMENT, AUTHORIZATION OF THE EXECUTION OF A JOINT EXERCISE OF POWERS AGREEMENT BY CONTRA COSTA COUNTY AND THE CONTRA COSTA COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT I. INTRODUCTION 1. These are the CEQA findings prepared by the Contra Costa County (County) and the Contra Costa County Flood Control and Water Conservation District (Flood Control District) as responsible agencies for approval of the East Contra Costa County Habitat Conservation Plan/Natural Community Conservation Plan ("Proposed Project" or "HCP/NCCP"). The County and the Flood Control District are approving the HCP/NCCP and are taking the following two actions to implement the HCP/NCCP: a) authorization of the execution of the Implementing Agreement for the East Contra Costa County Habitat Conservation Plan /Natural Community Conservation Plan and b) authorization of the execution of the Joint Exercise of Powers Agreement Creating the East Contra Costa County Habitat Conservancy. The East Contra Costa County Habitat Conservancy will implement the HCP/NCCP and is referred to in the HCP/NCCP and these findings as the Implementing Entity. These findings pertain to the Proposed Project and the Environmental Impact Report ("EIR") prepared for the Proposed Project (SCH #2005092129). The Draft EIR, the Final EIR, and all the appendices comprise the "EIR" referenced in these findings. 2. The East Contra Costa County Habitat Conservation Plan Association (HCPA) is a joint exercise of powers authority formed by: the Cities of Brentwood, Clayton, Oakley, and Pittsburg; Contra Costa County; the Contra Costa Water District (CCWD); and the East Bay Regional Park District. The HCPA was formed to manage and fund development of the proposed HCP/NCCP for submission to the agencies that formed the HCPA and to United States Fish and Wildlife Service (USFWS) and the California Department of Fish and Game (DFG). The HCPA was the lead agency for the EIR, which was certified on November 8, 2006. 3. These CEQA findings are attached as Exhibit A to a staff report documenting the adoption of these CEQA findings by the County and the Flood Control District. II. THE PROPOSED PROJECT 4. The proposed HCP/NCCP offers the best combination of benefits, including factors related to both the Proposed Project's purpose and need and its impacts, and contains the elements described below. Two permit areas which reflect the range of expected growth in the area would be established: an initial urban development area (which would authorize 9,796 acres of ground-disturbing urban development activities); and a maximum urban development area (which would authorize up to 13,029 acres of ground-disturbing urban development activities). Covered activities (i.e., specific activities or projects) in the proposed HCP/NCCP which would be permitted by DFG and USFWS include the following three distinct categories: (1) Activities and projects associated with urban growth, in accord with local general plans; (2) Specific infrastructure projects outside the urban development area; and (3) certain activities inside the proposed HCP/NCCP preserves including construction and maintenance of recreational or management facilities, habitat enhancement, restoration, and creation, management activities necessary to achieve the HCP/NCCP's biological goals, surveys for covered species, vegetation communities, and other resources, agricultural activities on adjoining land within one mile of the preserve boundary, low- intensity recreational use, and construction and maintenance of utility infrastructure. Other activities or projects not specifically described above may be evaluated for coverage under the proposed HCP/NCCP on a case-by-case basis. The main element of the proposed HCP/NCCP conservation strategy is the creation of a Preserve System that would preserve approximately 23,800 acres of land with the initial urban development area, or approximately 30,300 acres of land under the maximum urban development area. Likely locations for land acquisition have been divided into Acquisition Analysis Zones, and are under study as detailed in Chapter 2 of the EIR. The proposed HCP/NCCP conservation measures address the landscape-level, community-level (or habitat), and species-level impacts, and includes measures to address the following objectives: design of covered activities to avoid or minimize impacts on covered species and covered vegetation communities; preservation of covered vegetation communities; preservation of covered species populations and habitats; restoration of covered species habitat and vegetation communities to compensate for direct and indirect impacts on specific species and vegetation communities; restoration of species habitat to contribute to the recovery of listed covered species and help prevent the listing of non-listed covered species, and management of preserves to maximize the functions of habitats for covered species. III. ENVIRONMENTAL REVIEW OF THE PROPOSED PROJECT 5. Pursuant to the California Environmental Quality Act, Public Resources Code section 21000 et seq. ("CEQA") and the CEQA Guidelines, Code of California Regulations, Title XIV, Section 15000 et seq., the HCPA determined that an Environmental Impact Report consisting of a Draft EIR, a Final EIR and all the appendices ("EIR") would be prepared for the Proposed Project. The County and the Flood Control District concur in that determination. 1) 6. The HCPA issued a Notice of Preparation (NOP), which was circulated to responsible agencies and interested groups and individuals for review and comment on June 30, 2003. 7. Upon completion of the Draft EIR, the HCPA filed a notice of availability (NOA) in compliance with CEQA with the State Clearinghouse. The HCPA distributed the NOA and the EIR to interested agencies, organizations, and individuals for review and comment and made the EIR available at public libraries for public review. The public review period was September 2, 2005, to December 1, 2005; however, both the Draft HCP/NCCP and the Draft EIR were made available in June 2005. The County and the Flood Control District reviewed the Draft EIR in detail. 8. The HCPA received written comments on the Draft EIR during the public review period. The HCPA prepared responses to comments on environmental issues, and made changes to the Draft EIR. The responses to comments, changes to the Draft EIR and additional information were published in the Final EIR on October 10, 2006. The County and the Flood Control District reviewed the Final EIR in detail. 9. The Executive Governing Committee of the HCPA held a public meeting on the EIR on November 8, 2006. At this meeting, the HCPA certified the EIR, adopted findings and a Mitigation Monitoring and Reporting Plan (MMRP), and approved the HCP/NCCP for submission to the City Councils of the Cities of Brentwood, Clayton, Oakley, and Pittsburg, the Contra Costa County Board of Supervisors, and the East Bay Regional Park District Board of Directors. The HCPA filed a Notice of Determination related to these actions on November 9, 2006. 10. At all public meetings during the preparation of the HCP/NCCP,the HCPA staff and its consultants provided information about the Proposed Project, the potential environmental impacts, and the CEQA review process. At each meeting, members of the public had the opportunity to ask questions and express their concerns and interests for the Proposed Project. The County and the Flood Control District have participated in the preparation of the HCP/NCCP and the preparation of the EIR. 11. CEQA Guidelines Section 15088.5 requires a lead agency to recirculate an EIR for further review and comment when significant new information is added to the EIR after public notice is given of the availability of the draft EIR but before certification. New information added to an EIR is not "significant" unless the EIR is changed in a way that deprives the public of a meaningful opportunity to comment upon a substantial adverse environmental effect of the project or a feasible way to mitigate or avoid such an effect that the project proponent declines to implement. The Guidelines provide examples of significant new information under this standard. Recirculation is not required where the new information added to the EIR merely clarifies or amplifies or makes insignificant modifications in an adequate EIR. The HCPA found that the Final EIR does not contain significant new information as defined in the Guidelines and that recirculation of the EIR therefore is not required. The County and the Flood Control District concur with this finding. IV. THE RECORD 12. The record upon which all findings and determinations related to the Proposed Project are based includes the following: a. The EIR and all documents referenced in or relied upon by the EIR. b. All information (including written evidence and testimony) provided by HCPA staff to the HCPA relating to the EIR, the proposed approvals, the Proposed Project or its alternatives. c. All information (including written evidence and testimony)presented to the HCPA by the environmental consultant and subconsultants who prepared the EIR, or incorporated into reports presented to the HCPA. d. All information (including written evidence and testimony) presented to the HCPA from other public agencies relating to the Proposed Project or the EIR. f. All information (including written evidence and testimony) presented at any public hearing or workshop related to the Proposed Project and the EIR. g. For documentary and information purposes, all locally-adopted land use plans and ordinances, including, without limitation, general plans, specific plans and ordinances, together with environmental review documents; findings, mitigation monitoring programs and other documentation relevant to planned growth in the area. h. The MMRP adopted by the HCPA for the Proposed Project. i. All other documents comprising the record pursuant to Public Resources Code Section 21167.6(e). 13. The custodian of the documents and other materials that constitute the record of proceedings upon which the HCPA's certification of the EIR is based is John Kopchik, Principal Planner, Contra Costa County Community Development Department. The general location of these material is the Contra Costa County Community Development Department at 651 Pine Street, North Wing, Fourth Floor, Martinez, California 94553. 14. These findings are based upon substantial evidence in the entire record before the HCPA and the judgment of the County and the Flood Control District. The references to certain pages or sections of the EIR set forth in these findings are for ease of reference only and are not intended to provide an exhaustive list of the evidence relied upon for these findings. V. CERTIFICATION OF THE EIR 15. In accordance with CEQA and the CEQA Guidelines, the HCPA, as lead agency, certified that the EIR has been completed in compliance with CEQA and the CEQA Guidelines. The HCPA further certified that it has reviewed and considered the 4 information in the EIR prior to approving the Proposed Project. Similarly, the HCPA found that it has reviewed the record and the EIR prior to approving any element of the Proposed Project. By making these findings, the HCPA confirmed, ratified and adopted the findings and conclusions of the EIR, as supplemented and modified by the findings adopted by the HCPA. 16. The HCPA certified that the EIR is adequate to support the approval of the Proposed Project and for each approval required for construction or operation of the Proposed Project. VI. MITIGATION MEASURES, CONDITIONS OF APPROVAL, AND MMRP 17. Public Resources Code Section 21081.6 and CEQA Guidelines Section 15097 require the lead and responsible agencies to adopt a monitoring plan or reporting program to ensure that the mitigation measures adopted or made conditions of project approval are complied with during project implementation. The HCPA found that the MMRP met these requirements and adopted the MMRP. 18. The mitigation measures recommended by the EIR and incorporated into the Proposed Project are specific and enforceable. As appropriate; some mitigation measures define performance standards to ensure no significant environmental impacts occur. The MMRP adequately describes conditions, implementation, verification, and reporting requirements to ensure the Proposed Project complies with the adopted mitigation measures. The MMRP ensures that the mitigation measures are in place, as appropriate, throughout the life of the Proposed Project. 19. As set forth in Table A-1, all of the mitigation measures are the responsibility of and within the authority of the Implementing Entity. As such, none of the mitigation measures are conditions of approval by the County and/or the Flood Control District, and no MMRP is adopted by the County and/or the Flood Control District since the mitigation measures are within the authority of another agency. VII. FINDINGS REGARDING IMPACTS 20. In accordance with Public Resources Code section 21081 and CEQA Guidelines sections 15091 and 15092, the County and the Flood Control District adopt the findings and conclusions regarding impacts and mitigation measures that are set forth in the EIR, and summarized in Table A-1. These findings do not repeat the full discussions of environmental impacts contained in the EIR. The County and the Flood Control District ratifiy, adopt and incorporate the analysis, explanation, findings, responses to comments and conclusions of the EIR. The County and the Flood Control District adopt the reasoning of the EIR. 21. The County and the Flood Control District have, by their review of the evidence and analysis presented in the EIR and in the record, acquired a better understanding of the full scope of the environmental issues presented by the Proposed Project. In turn, this understanding has enabled the County and the Flood Control District to make fully informed, thoroughly considered decisions on these important issues. These findings are 5 based on a full appraisal of the EIR and the record, as well as other relevant information in the record of proceedings for the Proposed Project. 22. The County and the Flood Control District find that, with HCP/NCCP implementation, including all conservation measures in Chapter 5 of the HCP/NCCP, and all the conditions on covered activities in Chapter 6 of the HCP/NCCP, and with implementation of the identified mitigation in the adopted by the HCPA in the MMRP, all of the Proposed Project impacts will be at a level of less than significant as shown in table ES-1 of the final EIR. For each of the impacts identified in Table A-1 that requires implementation of one or more mitigation measures to reduce the impact to a less than significant level, implementation of the mitigation measure or measures is the responsibility of the Implementing Entity. VIII. FINDINGS REGARDING ALTERNATIVES 26. The County and the Flood Control District adopt the EIR's analysis and conclusions regarding alternatives considered and the alternatives eliminated from further consideration, both during the scoping process and in response to comments. 27. The EIR evaluated a reasonable range of alternatives to the Proposed Project. Fully evaluated alternatives included: Alternative 2 (Conservation Strategy B); Alternative 3 (Reduced Development Area); and Alternative 4 (No Action/No Project). The analysis examined the feasibility of each alternative,the environmental impacts of each alternative, and the ability of each alternative to meet the objectives of the Proposed Project. As the EIR was combined with a NEPA Environmental Impact Statement (EIS), the evaluation of alternatives was at an equal level of detail. Seven additional alternatives were considered, but eliminated from further consideration for the reasons disclosed in Chapter 2 of the EIR and discussed below. 28. The County and the Flood Control District have independently reviewed and considered the information on alternatives provided in the EIR and in the record. The EIR reflects the County and the Flood Control District's independent judgment as to alternatives. The County and the Flood Control District find that the Proposed Project (Conservation Strategy A) provides the best balance between satisfaction of the Proposed Project's objectives and mitigation of environmental impacts to the extent feasible, as described and analyzed in the EIR. All the remaining alternatives were not selected for the following reasons. 29. Alternative 2 (Conservation Strategy B) provides a different and lower amount of land acquisition and habitat restoration than the Proposed Project. As further described in Chapter 2 of the EIR, Alternative 2 proposed conservation in different areas and less conservation overall than the Proposed Project. Conservation measures related to land management; principles of habitat restoration, and impact avoidance and minimization are the same between the two alternatives. Alternative 2 was not selected because the conservation strategy incorporated in the Proposed Project better fulfill the land use and bioloaical goals of the HCP/NCCP as a whole. 6 30. Alternative 3 (Reduced Development Area) would designate a single, smaller permit area; rather than the initial and maximum urban development areas designated in the Proposed Project. Under this alternative, covered activities and projects within the urban development area would be limited to lands inside city limits that are designated for development and lands in unincorporated areas with a development land use designation in the Contra Costa County General Plan. Rural infrastructure projects and activities within the preserves, as described for the proposed HCP/NCCP, would also be covered under this alternative. Under this alternative, the permit area would be 6,991 acres, approximately 1,958 acres less than the initial urban development area and 6,225 acres less than the maximum urban development area. Land acquisition priorities identified for the initial urban development area would remain the same as the Proposed Project. Requirements for land acquisition and restoration would be reduced under because these requirements are scaled according to the level of development. All other elements would be identical to the Proposed Project. Alternative 3 was not selected because it would not provide flexibility in adapting the HCP/NCCP to future changes in land use planning over the life of the permit term. Fixing the permit area into currently designated areas for development would require costly and inefficient revision and amendment to the HCP/NCCP to adapt to future development patterns. The Proposed Project allows for flexibility within the maximum urban development area while fulfilling the biological goals of conservation and recovery for covered species in the area. 31. Alternative 4 (No-Action/No-Project) would not include the proposed HCP/NCCP, including implementation of conservation measures and creation of a Preserve System, would not be adopted, and permits pursuant to Section 10(a)(1)(B) of ESA and Section 2835 of the NCCPA would not be issued by USFWS and DFG, respectively. Compliance with ESA and CESA would continue to be addressed on a case-by-case basis. Projects and activities with a potential to affect federally listed species would be required to individually comply with ESA through either the preparation of individual HCPs and Section 10 permit application, or the Section 7 consultation process in cases in which federal authorization (e.g., Section 404 CWA permitting by USAGE) or funding (e.g., Federal Highway Administration [FHWA] funding for transportation projects) are required. Section 7 compliance would focus on federally listed species and would not address state-listed or nonlisted species. In the absence of a Section 10 permit, private activities near or adjacent to the habitat of listed species would have a greater risk of take of listed species and of civil penalties and injunctive relief. Alternative 4 was not selected because it would not fulfill the purpose and need of the Proposed Project. 32. Alternative 5 (No-Take Alternative). Section 10(a)(2)(A)(iii) of the federal ESA states: "No permit may be issued by the Secretary authorizing any taking referred to in paragraph (1)(B) unless the applicant therefore submits to the Secretary a conservation plan that specifies what alternative actions to such taking the applicant considered and the reasons why such alternatives are not being utilized." In accordance with this requirement, the proposed HCP/NCCP considers alternatives to take for each of the federally listed species covered under the proposed HCP/NCCP (see HCP/NCCP Chapter 10, Alternatives to Take). Alternatives to take for each federally listed species 7 were rejected in the proposed HCP/NCCP because they would not allow reasonable development consistent with the general plans of the cities or County, they would not be practicable to implement, or they would result in an outcome that is biologically inferior to that of the proposed HCP/NCCP. Alternatives to take for federally listed species were thus eliminated from further consideration in the EIR. 33. Alternative 6 (Expanded List of Covered Species). During the scoping process, it was suggested that the EIR consider an alternative that provides coverage for additional species. The Science Advisory Panel reviewed the Proposed Project covered species list and considered it appropriate. However, it did recommend reconsidering 13 species that were originally not recommended for coverage (ECCC HCP/NCCP Science Advisory Panel 2002). Of these 13 species, the HCP/NCCP consultant recommended that the ECCC HCPA consider adding the following six covered species if additional funding could be found: Peregrine Falcon; Short-eared Owl; Western pond turtle; Western spadefoot; California horned lizard; Round-leaved filaree; and Western pond turtle and round-leaved filaree were added as a result of the Science Advisory Panel's recommendation. An alternative that includes the remaining four species is not feasible because additional planning funds to add these species to the proposed HCP/NCCP has not been secured. Furthermore, adding these species would not substantially change the proposed HCP/NCCP conservation strategy. Conservation measures already proposed in the HCP/NCCP to protect and enhance grassland and oak woodland would incidentally conserve foraging habitat for peregrine falcon, potential foraging and breeding habitat for short-eared owl, foraging and breeding habitat for California horned lizard, foraging and aestivation habitat for western spadefoot. Pond protection, enhancement, restoration, and creation would also conserve habitat for western spadefoot. Species-specific conservation measures might be added to the proposed HCP/NCCP if these additional four species were added, but these measures would not substantially change the conservation strategy, its implementation cost, or its impacts. Adding these species would not reduce any environmental impacts associated with the proposed HCP/NCCP. This alternative was eliminated from further consideration in the EIR based on it not substantially changing the Proposed Project description or the Proposed Project impacts. 34. Alternative 7 (ESA-Listed Species Only). Under this alternative, only those species that are federally listed as threatened or endangered would be proposed for coverage under the HCP/NCCP. The following species would be covered: San Joaquin kit fox: Alameda whipsnake; Giant garter snake; California red-legged frog; California tiger salamander; Longhorn fairy shrimp; Vernal pool fairy shrimp; Vernal pool tadpole shrimp. Under a Listed Species Only alternative, no assurances would be provided by USFWS, as part of the ITPs, that the avoidance and mitigation measures provided in the proposed HCP/NCCP would adequately conserve currently nonlisted species that maybe listed during the term of the HCP/NCCP. Other sensitive species would not be covered, and take would be addressed on a project-by-project basis, like that described above for the No-Action/No-Project alternative. This alternative would not meet the Objectives of the Proposed Project to develop and implement a plan that provides comprehensive species protection, avoids future listing of species, and provides assurances that the HCP/NCCP would adequately minimize and mitigate impacts on nonlisted species that may be listed in the future. Non-coverage of additional species 8 would also result in a loss of potential permitting efficiency; another key Objective of the Proposed Project. This alternative was therefore eliminated from further consideration in the EIR. 35. Alternative 8 (Preserve Acquisition Outside the Inventory Area). Under this alternative, land acquisition could occur both inside and outside the inventory area. This alternative would allow the Implementing Entity a broader geographic area in which to seek willing sellers and potentially a greater ability to target land-cover types or areas of particular importance for achieving the established biological goals and objectives. This alternative was eliminated from consideration first because it would not meet the Objective of the Proposed Project to provide for species and community conservation in eastern Contra Costa County. The first recommendation to prepare an HCP/NCCP by FWS and DFG was intended to mitigate the impacts of increased growth in this specific geographic area. Preservation and mitigation are most effective if they occur as close to the area of impact as possible. Acquisition outside the inventory area may reduce the effectiveness of the overall conservation strategy; it would also reduce the amount of funding available for acquisition of lands within the inventory area that are essential for the creation of a comprehensive management plan. In addition, many of the covered plant species are not present in the San Joaquin Valley. The ability to acquire preserve lands outside the current HCP/NCCP inventory area would be constrained by several other land use and planning considerations. Land acquisition to the west and north would be virtually precluded by existing urban areas, parklands, and the Bay-Delta. Land acquisition to the east in San Joaquin County could interfere with the land acquisition efforts necessary for San Joaquin County to meet the requirements of its approved Countywide HCP. Land acquisition to the south could interfere with conservation and land acquisition efforts being undertaken independently by a number of local agencies, including the EBRPD and the Altamont Landfill Open Space Committee. Finally, local authorities in Contra Costa County may lack jurisdiction to fully implement the proposed HCP/NCCP in Alameda or San Joaquin County since the implementing ordinance would have no affect and enforcement would be based solely on agreements reached with individual landowners within those jurisdictions. Thus, this alternative was eliminated from further consideration in the EIR. 36. Alternative 9 (Reduced Permit Duration). Under this alternative, the term of the HCP/NCCP and the take permits would be limited to 20 years to enable local jurisdictions, permitting agencies, and the Implementing Entity to evaluate the success of the HCP/NCCP prior to full development of the expanded permit area. This alternative would not result in impacts that differ substantially from those of the proposed HCP/NCCP. Although a reduced permit term would more closely parallel the time frame of the local general plans, a longer permit term is necessary to fully implement a comprehensive regional planning and conservation strategy in eastern Contra Costa County. Limiting the term of the permit would also limit the ability of the Implementing Entity and the Permittees to secure funding from development sources to implement the regional conservation strategy. The covered activities (urban development/growth) and preserve assembly is expected to take up to 30 years. In the judgment of the HCPA to which the County and the Flood District concur, the reduced permit alternative would not cover the full duration of potential covered activities nor the conservation program 9 implementation (including funding considerations). This alternative was eliminated from consideration in the EIR. 37. Alternative 10 (Existing Reserves Only). Under this alternative, conservation would be provided only within current park or open space lands in eastern Contra Costa County. Conservation would take the form of changes in management and habitat restoration on existing preserves to benefit covered species. This alternative would meet neither the HCP standards requiring it to mitigate to the maximum extent practicable, NCCPA requirements to conserve the covered species, nor the Objective of the Proposed Project to focus on preservation of lands that are not currently protected. Existing preserves are owned by EBRPD, CCWD, California Department of Parks and Recreation, and Save Mount Diablo (the last two entities are not participating in the HCP). As a condition of the Planning Agreement for the proposed HCP/NCCP between the HCPA and DFG, it was established that existing preserves would not be relied upon in the proposed HCP/NCCP to compensate for impacts of covered activities. In addition, this alternative would also not meet the Objectives of the Proposed Project of satisfying the requirements for issuance of ITPs under the NCCPA. Existing reserves would provide conservation of only a limited extent of vegetation communities and species. Moreover, existing reserves are widely distributed throughout eastern Contra Costa County and do not provide adequate corridors for movement of species between areas of suitable habitat. Broader conservation and recovery, as well as avoidance of future listings, could not be provided within the limitations of existing park and open space lands. This alternative does not minimize and mitigate to the maximum extent practicable. This alternative was eliminated from consideration in the EIR 38. Alternative 11 (Modified Urban Growth Model). An alternative that assumes a "smart-growth'' or other urban growth model for eastern Contra Costa County was suggested during the public scoping period for the EIR. Smart-growth or similar alternative growth models strive for new development that is more town centered; is auto-accessible while also accommodating transit and pedestrian activity; and has a greater mix of housing, commercial, and retail uses. It also seeks to preserve open space and protect sensitive areas such as wetlands. This alternative focuses on changing land use policy as oppose to looking at alternative HCP/NCCP approaches, i.e., conservation strategies, covered species, permit duration, etc. This alternative requires changing development patterns for the purpose of creating town centers, accommodating transit and pedestrian activities, requiring greater mixed uses, preserving open space, and protecting sensitive resources. To a great extent, benefit to species would be secondary and incidental to broad reaching changes to land use policy. The Proposed Project is the HCP/NCCP not the applicable General Plans. The HCP/NCCP is required to assess and mitigate for impacts of the "covered activities' on `.covered species'. In order to adequately mitigate for impacts the HCP/NCCP may limit the amount or location of development that the applicable general plans contemplate; however, the HCP/NCCP is not intended to supercede the general plans or land use authority of the applicable jurisdictions but rather to impose restrictions on the general plan implementation through consideration of regional conservation requirements necessary to protect the covered species. 10 The current general plans for the County and the cities are the current guide to future development in eastern Contra Costa County and are the basis or baseline for the assessment of impacts and conservation in the proposed HCP/NCCP. Alternative growth models would not be precluded under the proposed HCP/NCCP and could be implemented through the local legislative process by the applicable jurisdictions in the future. However; development of a smart-growth alternative for analysis in the EIR would require either that the local land use agencies develop and adopt new general plans policies that incorporate smart-growth as a basis for conservation planning, or that the proposed HPC/NCCP make broad assumptions about how a smart-growth alternative would be implemented by each of the local jurisdictions. The time and cost associated with development of new general plans for each applicable jurisdiction would be prohibitive and would effectively offset any efficiencies local jurisdictions would hope to achieve in preparing the proposed HCP/NCCP. Development of and reliance on a growth model that is different from the current general plans would be highly speculative due to the legislative/political nature of such an action. Accordingly, this alternative is not feasible due to legal and financial reasons. 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G-�0--+ cG pU G v, C-1 �� O � ., ��U U ✓ p p G r" � V a.0 i o OD o o � m c ti E -C� •- DO•A � ''. �'� � 2 v ob `` r- 01) v _ OL 79 o o :-'Zn U Ccz u y o ° N 7- 'n Ji G c3 ct U 01) i 9.7 Faria South/Costa and Montecito Project Mitigation Portions of two proposed projects southwest of the City of Pittsburg near Bailey Road, the "Facia South/Costa Project" and the"Montecito Project," were designated in the draft HCP/NCCP as high priority for inclusion in the Preserve System. After release of the draft HCP/NCCP for public review,the City of Pittsburg in a public initiative adopted an urban limit line that included both projects in their entirety. The Parties agreed that the public initiative reduced the feasibility of conserving land in that area to the extent proposed in the draft HCP/NCCP. Consequently, the Parties considered an alternative preservation approach in that area.As the result of subsequent discussions with the proponent of the two projects, the Wildlife Agencies identified substantial, mutually agreeable, additions of land to the Preserve System and funding for HCP/NCCP implementation that would maintain the level of conservation evaluated in the draft HCP/NCCP while allowing revision of the HCP/NCCP such that significant portions of the two projects are no longer identified as a high priority for inclusion in the Preserve System. The mitigation, which would maintain the level of conservation, includes dedication of land or easements comprising approximately one-thousand (1,000) acres (most of which is within the high priority acquisition area) and payment of substantial fees. The mitigation is expected to include the approximately sixty-three (63) acre area identified as high priority within Zone 1 a, as well as portions of the Smith, West Coast, and Nortonville properties. These measures differ from the general mitigation fee and land acquisition requirements of the HCP/NCCP.Nevertheless they were contemplated in the final HCP/NCCP and they are consistent with the requirements of and further the HCP/NCCP Conservation Strategy. Additionally, they provide sufficient mitigation for the two projects. The details of the measures associated with the "Faria South/Costa Project" and the "Montecito Project"will be set forth in an in-lieu fee agreement as described in Section 13.2.2.2. Since this agreement is expected to be finalized prior to formation of the Implementing Entity, the agreement may be executed by the Wildlife Agencies without the Implementing Entity and the City of Pittsburg. The Implementing Entity may become a signatory thereto at a later date. Execution of such an in-lieu agreement, which conforms to the structure set forth in Chapter 8.6.7, or which otherwise meets the criteria for in-lieu agreements set forth in Chapter 8.6.7, supports Take authorization for the two projects under the Permits. Because the change in high priority acquisition areas was based in part on the expectation that an alternative mitigation and preservation approach that maintains the level of conservation evaluated in the draft HCP/NCCP would be established in an in-lieu agreement, such an agreement is necessary in order to authorize Take for these properties under the HCP/NCCP and the Permits. The mitigation provided under the terms of the agreement will count toward fulfillment of the HCP/NCCP obligations set forth in Conservation Measure 1.1. Exhibit C Implementing Agreement for the East Contra Costa County Habitat Conservation Plan/Natural Community Conservation Plan IMPLEMENTING AGREEMENT for the EAST CONTRA COSTA COUNTY HABITAT CONSERVATION PLAN/ NATURAL COMMUNITY CONSERVATION PLAN by and between EAST CONTRA COSTA COUNTY HABITAT CONSERVANCY, COUNTY OF CONTRA COSTA, CITY OF PITTSBURG, CITY OF CLAYTON, CITY OF OAKLEY, CITY OF BRENTWOOD, CONTRA COSTA COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT, EAST BAY REGIONAL PARK DISTRICT, UNITED STATES FISH AND WILDLIFE SERVICE, and CALIFORNIA DEPARTMENT OF FISH AND GAME December 14, 2006 TABLE OF CONTENTS 1.0 PARTIES............................................................................................................ 1 2.0 RECITALS......................................................................................................... 1 3.0 DEFINITIONS...................................................................................................4 4.0 Purposes..............................................................................................................9 5.0 INCORPORATION OF THE HCP/NCCP................................................... 10 6.0 LEGAL FINDINGS AND REVIEW BY THE WILDLIFE AGENCIES.. 10 6.1 USFWS Findings.............................................................................................. 10 6.2 CDFG Findings ................................................................................................ 11 6.2.1 State Listed and Non-Listed Species..................................................... 11 6.2.2 State Fully Protected Species................................................................. l I 6.3 Environmental Review .................................................................................... 11 6.3.1 Federal Law—National Environmental Policy Act............................. 11 6.3.2 State Law—California Environmental Quality Act............................ 12 7.0 CONSERVATION STRATEGY.................................................................... 12 8.0 AVOIDANCE & MINIMIZATION OF IMPACTS..................................... 12 8.1 General Framework......................................................................................... 12 8.2 Surveys.............................................................................................................. 13 8.3 Responsibility for Projects at the Urban-Wildland Interface...................... 13 8.4 No Take of Extremely Rare Plants or Fully Protected Species................... 13 8.4.1 No-Take Plant Management Plans........................................................ 14 8.4.2 Golden Eagle............................................................................................ 14 8.5 Design Requirements for Covered Roads Outside the Urban Limit Line.. 14 8.6 Delineation of Jurisdictional Wetlands and Waters..................................... 15 9.0 LAND ACQUISITION & ASSEMBLY OF PRESERVE SYSTEM.......... 15 9.1 General Framework......................................................................................... 15 9.1.1 Assembly of Preserve System —Implementing Entity's Responsibility for Mitigation and Conservation........................................................... 16 9.1.2 Assembly of Preserve System —The Wildlife Agencies' Contribution to Conservation and Recovery............................................................... 16 9.2 Stay Ahead Provision....................................................................................... 17 9.3 Rough Proportionality Standard.................................................................... 18 9.4 Land Acquired by the Park District............................................................... 19 9.5 Land Acquired Through Partnerships with Other Agencies and Organizations ................................................................................................... 19 9.6 Lands and Revenues Acquired Before Issuance of the Permits..................20 9.7 Faria South/Costa and Montecito Project Mitigation..................................20 9.8 Cypress Corridor Project Mitigation.............................................................21 10.0 PRESERVE MANAGEMENT.......................................................................22 10.1 Responsibility of the Implementing Entity....................................................22 10.2 Management of Park District Lands in Preserve System ............................22 10.2.1 Recreational Uses....................................................................................23 10.2.2 Coverage for Park District Land Management in Plan Area.............23 10.3 Preserve Management Plans...........................................................................23 10.3.1 System-Wide Preserve Management.....................................................23 10.3.2 Preserve Management Plans..................................................................23 10.3.3 Agricultural Management Plans ...........................................................24 10.3.4 Grazing Leases Within the Preserve System........................................24 10.4 Review and Approval By the Wildlife Agencies............................................24 11.0 PLAN AREA MONITORING & REPORTING..........................................25 11.1 Responsibility of the Implementing Entity....................................................25 11.2 Compliance Monitoring.........................................................I.........................25 11.2.1 Compliance Monitoring Data Repository.............................................25 11.3 Effectiveness Monitoring.................................................................................26 11.4 Annual Report and Public Workshop............................................................26 11.5 Annual Implementation Review and Meeting...............................................26 11.6 Other Reports...................................................................................................27 11.7 Monitoring by the Wildlife Agencies..............................................................27 12.0 ADAPTIVE MANAGEMENT & CHANGED CIRCUMSTANCES.........27 12.1 General Framework of Adaptive Management............................................27 12.1.1 Adaptive Management Initiated by the Implementing Entity............27 12.1.2 Adaptive Management Initiated by the Wildlife Agencies .................27 12.2 Changed Circumstances..................................................................................28 12.2.1 Federal Definition ...................................................................................28 12.2.2 State Definition........................................................................................28 12.2.3 Identification of Changed Circumstances ....................... .. .. .................28 12.2.4 Responses to Changed Circumstances Initiated by the Implementing Entity........................................................................................................ 28 12.2.5 Responses to Changed Circumstances Initiated by the Wildlife Agencies ...................................................................................................29 12.2.6 Listing of Species that are Not Covered Species..................................29 12.3 No Increases In Take....................................................................................... 29 13.0 IMPLEMENTING MECHANISMS..............................................................29 13.1 Role of the Implementing Entity ..................................... .........29 ...................... 13.1.1 Projects Implemented by Permittees .................................................... 30 13.2 Extension of Take Authorization to Third Party Participants.................... 31 13.2.1 General Provisions.................................................................................. 31 13.2.2 Project Proponents.................................................................................. 31 13.2.2.1 Early Extension of Take Authorization........................................ 32 13.2.2.2 Land Dedication In-Lieu of Development Fee............................. 33 13.2.3 Neighboring Landowners....................................................................... 33 13.2.4 Participating Special Entities................................................................. 33 13.3 HCP/NCCP Implementing Ordinance........................................................... 34 13.3.1 Application Requirements...................................................................... 34 13.3.2 Conditions of Take Authorization......................................................... 35 13.3.3 Adaptation of Model Ordinance by Permittees ................................... 35 13.3.4 Application to Covered Activities.......................................................... 35 13.4 Conservation Easements ................................................................................. 35 13.5 Enforcement..................................................................................................... 35 13.6 Collaboration between Implementing Entity and Park District................. 36 • ii 13.7 Collaboration between Implementing Entity and Flood Control District.. 37 14.0 FUNDING.........................................................................................................37 14.1 General Commitment...................................................................................... 37 14.2 Private Funding of No-Take Plant Management Plans................................ 37 14.3 Long-Term Management Funding................................................................. 38 14.4 Effect of Inadequate Funding......................................................................... 38 15.0 RIGHTS, OBLIGATIONS & ASSURANCES.............................................. 38 15.1 Rights & Obligations of the Permittees ......................................................... 38 15.1.1 Rights .......................................................................................................38 15.1.2 General Obligations................................................................................ 39 15.1.3 Obligations In The Event of Suspension or Revocation...................... 39 15.1.4 Assurances for Third Party Participants.............................................. 39 15.1.5 Interim Obligations upon a Finding of Unforeseen Circumstances...40 15.2 USFWS Obligations and Assurances.............................................................40 15.2.1 General Obligations................................................................................40 15.2.2 No Surprises Assurances........................................................................40 15.2.3 Critical Habitat Designations in the Plan Area....................................41 15.3 CDFG Obligations and Assurances................................................................41 15.3.1 General Obligations................................................................................41 15.3.2 Long-Term Assurances ..........................................................................41 16.0 CONSULTATIONS WITH OTHER PUBLIC AGENCIES.......................42 16.1 Section 7 Consultations with USFWS............................................................42 16.2 Consultations by CDFG .................................................................................. 42 17.0 AMENDMENTS TO THE HCP/NCCP AND THE FEDERAL AND STATEPERMITS...........................................................................................42 17.1 Clerical Changes ..............................................................................................42 17.2 Changes in Boundaries of Urban Limit Line and Jurisdictional Limits of theCities ...........................................................................................................43 17.2.1 General Land Use Authority of the County and Cities.......................43 17.2.2 Amending the Urban Limit Line or Jurisdictional Limits of the Cities ...................................................................................................................43 17.3 Fully Protected Species.................................................................................... 44 17.4 Inability to Obtain Regional Wetland Permits .............................................44 17.5 Exceptions to the Conservation Strategy.......................................................45 17.6 Amendments.....................................................................................................45 17.6.1 Amendment of this Agreement..............................................................45 17.6.2 Amendment of the HCP/NCCP.............................................................45 17.6.3 Minor Amendments................................................................................45 17.6.3.1 Scope of Minor Amendments.........................................................45 17.6.3.2 Processing Minor Amendments.....................................................46 17.6.3.2.1 Notice and Response of Approval or Objection.......................46 17.6.3.2.2 Objection by a Wildlife Agency.................................................46 17.6.3.2.3 Objection by a Permittee............................................................47 17.6.3.2.4 Unresolved Objections................................................................47 17.6.3.2.5 Date that a Minor Amendment Becomes Effective..................47 17.6.4 Major Amendment..................................................................................47 iii 18.0 TERM OF AGREEMENT..............................................................................48 18.1 Effective Date ...................................................................................................48 18.2 Term of the Agreement...................................................................................48 18.3 Term of the Permits.........................................................................................48 18.4 Extension of the Permits............................................................................. 48 19.0 REVOCATION, SUSPENSION OR TERMINATION BY USFWS OR CDFG................................................................................................................48 19.1 Federal Permit.................................................................................................. 48 19.2 State Permit......................................................................................................49 19.3 Continuing Obligations ................................................................................... 49 20.0 WITHDRAWAL..............................................................................................49 21.0 HCP/NCCP IMPLEMENTATION AND INTERPRETATION, REMEDIES AND ENFORCEMENT............................................................ 50 21.1 HCP/NCCP Implementation and Interpretation.......................................... 50 21.1.1 Notice of Dispute; Meet and Confer...................................................... 51 21.1.1.1 Disputes Regarding Specific Projects............................................ 51 21.1.1.2 Elevation of Dispute........................................................................ 52 21.2 Remedies in General........................................................................................ 52 21.3 Federal Permit.................................................................................................. 52 21.3.1 Permit Suspension................................................................................... 52 21.3.2 Reinstatement of Suspended Permit..................................................... 52 21.4 The State Permit .............................................................................................. 53 21.4.1 Permit Suspension................................................................................... 53 21.4.2 Rough Proportionality 21.4.3 Reinstatement of Suspended Permit..................................................... 53 21.5 Circumstances Likely to Constitute Jeopardy to Species ............................ 54 22.0 FORCE MAJEURE......................................................................................... 54 23.0 LEGAL AUTHORITY OF THE WILDLIFE AGENCIES......................... 55 23.1 Legal Authority of USFWS............................................................................. 55 23.2 Legal Authority of CDFG ............................................................................... 55 24.0 MISCELLANEOUS PROVISIONS............................................................... 55 24.1 Calendar Days.................................................................................................. 55 24.2 Response Times................................................................................................ 55 24.2.1 Review of Third Party Participant Applications ................................. 55 24.3 Notices............................................................................................................... 56 24.4 Entire Agreement............................................................................................. 59 24.5 Defense.............................................................................................................. 59 24.6 Attorneys' Fees................................................................................................. 59 24.7 Elected Officials Not to Benefit....................................................................... 59 24.8 Availability of Funds.................................................................................... 59 24.9 Governing Law................................................................................................. 60 24.10 Duplicate Originals......................................................................................... 60 24.11 Relationship to the FESA, CESA,NCCPA and Other Authorities ........... 60 24.12 No Third Party Beneficiaries......................................................................... 61 24.13 References to Regulations .............................................................................. 61 24.14 Applicable Laws.............................................................................................. 61 iv 24.15 Severability...................................................................................................... 61 24.16 Due Authorization...........................................................................................61 24.17 Assignment....................................................................................................... 61 24.18 Headings........................................................................................................... 62 EXHIBITA................................................................................................................ 66 EXHIBITB................................................................................................................ 67 EXHIBITC................................................................................................................ 69 v 1 AGREEMENT 1.0 PARTIES This Implementing Agreement ("Agreement"), made and entered into by and among the United States Fish and Wildlife Service ("USFWS") of the United States Department of the Interior, the California Department of Fish and Game ("CDFG") of the State of California Resources Agency, the East Contra Costa County Habitat Conservancy (the "Implementing Entity"), the County of Contra Costa ("County"), the City of Pittsburg ("Pittsburg"), the City of Clayton ("Clayton"), the City of Oakley ("Oakley"), the City of Brentwood ("Brentwood"), the East Bay Regional Park District ("Park District") and the Contra Costa County Flood Control And Water Conservation District ("Flood Control District"), implements the East Contra Costa County Habitat Conservation Plan/Natural Community Conservation Plan ("HCP/NCCP") as of the Effective Date,. These entities may be referred to collectively as the "Parties" and individually as a "Party." The USFWS and CDFG may be referred to collectively as the "Wildlife Agencies." Pittsburg, Clayton, Oakley and Brentwood may be referred to collectively as the "Cities" and each individually as a "City." The Implementing Entity, County, Cities, Park District, and Flood Control District may be referred to collectively as the "Permittees" and each individually as a"Permittee." 2.0 RECITALS The Parties have entered into this Agreement in consideration of the following facts: 2.1 The East Contra Costa County HCP/NCCP is intended to provide a comprehensive framework to protect natural resources in eastern Contra Costa County, while improving and streamlining the environmental permitting process for certain projects that would cause impacts on endangered and threatened species. The primary policy priority of the HCP/NCCP is to provide comprehensive species, wetlands, and ecosystem conservation and provide for the conservation and management of endangered and threatened species within East Contra Costa County while balancing open space, habitat, agriculture, and urban development. To that end, the HCP/NCCP describes how to provide for the conservation and management of, and how to avoid, minimize, and mitigate, to the maximum extent practicable, impacts on, Covered Species and their habitats while allowing for the urban development in selected regions of the County and the Cities. 2.2 The East Contra Costa County Habitat Conservancy is a joint powers authority formed by its members, the County, and the Cities, to implement the HCP/NCCP. The East Contra Costa County Habitat Conservancy is the Implementing Entity. 2.3 The HCP/NCCP covers approximately one-third of the County, or 174,082 acres, all in East Contra Costa County; in which impacts from 1 i certain development and other activities are evaluated, and in which conservation will occur. 2.4 The area covered by the HCP/NCCP has been determined to provide, or potentially provide, habitat for twenty-eight (28) species that are listed as endangered or threatened, or that carry other special status, under federal and state laws. 2.5 The Permittees are seeking authorization from the Wildlife Agencies for the "take" of the twenty-eight (28) special-status species and certain other species, as take is defined respectively under federal and state law (see below at Section 3.46 of this Agreement), while carrying out certain development and other activities. 2.6 The Wildlife Agencies' take authorizations will cover urban development only if it occurs (a) within the unincorporated areas of the County within the Urban Limit Line ("ULL") as the ULL may be amended during the Term of this Agreement, or(b) within the jurisdictional limits of the Cities as they may be amended during the term of this Agreement, provided that any such amendments are consistent with certain assumptions made in the HCP/NCCP. The Wildlife Agencies' take authorizations will also apply to specific rural infrastructure projects and activities outside the ULL or the jurisdictional limits of the Cities and to land management activities on lands protected as part of the HCP/NCCP "Preserve System," as further described in the HCP/NCCP. 2.7 The USFWS has jurisdiction over the conservation,protection, restoration, enhancement and management of fish, wildlife, native plants and habitat necessary for biologically sustainable populations of those species under various federal laws, including the federal Endangered Species Act of 1973 (16 U.S.C. §1531 et seq.) ("FESA"), the Migratory Bird Treaty Act (16 U.S.C. §701 et seq.), the Bald and Golden Eagle Protection Act (16 U.S.C. §668 et seq.), the Fish and Wildlife Coordination Act (16U.S.C. §§661-666(c)), and the Fish and Wildlife Act of 1956 (16 U.S.C. §742(a) et seq.). 2.8 FESA prohibits the "take" of species listed as endangered or threatened under FESA, as take is defined under federal law. Under Section 10(a)(1)(B) of FESA (16 U.S.C. §1539(a)), USFWS may issue a permit authorizing the incidental take of endangered or threatened species during otherwise lawful activities if certain statutory requirements are met by the applicant and such take will not appreciably reduce the likelihood of the survival and recovery of the species in the wild. To obtain a federal incidental take permit, the applicant must submit a habitat conservation plan ("HCP") describing, among other things, the steps the applicant will take to minimize and mitigate to the maximum extent practicable the impact of such "taking." The Permittees submitted the HCP/NCCP to USFWS, and applied for a federal permit for incidental take of Covered Species within the Permit Area. The incidental take permit issued by USFWS based on the HCP/NCCP will be issued concurrently with the USFWS' execution of this Agreement. 2 2.9 CDFG has jurisdiction over the conservation, protection, restoration, enhancement and management of fish, wildlife, native plants and habitat necessary for biologically sustainable populations of those species under various state laws, including the California Endangered Species Act (Fish & G. Code, §2050 et seq.) ("CESA"), the Natural Community Conservation Planning Act (Fish & G. Code, §2800 et seq.) ("NCCPA"), the Native Plant Protection Act (Fish & G. Code, §1900 et seq.), and California Fish and Game Code sections 1600 et seq., 1801, 1802, 3511, 4700, 5050 and 5515. 2.10 CESA prohibits the take of species listed as endangered, threatened or candidate species under CESA. The NCCPA allows CDFG to authorize by permit the take of any species, whether or not they are listed as endangered or threatened under CESA, where the conservation and management of the species are provided for in a natural community conservation plan ("NCCP") approved by CDFG. (Fish & G. Code, §2835.) The Permittees submitted the HCP/NCCP to CDFG for approval and permitting for take pursuant to NCCPA. The take authorization issued by CDFG based on the HCP/NCCP will be issued concurrently with CDFG's execution of this Agreement. 2.11 The Park District manages more than 97,000 acres of parkland, wilderness, shorelines, preserves and land banks in Alameda and Contra Costa counties. Its mission is to acquire, develop, manage, and maintain a high quality, diverse system of interconnected parklands that balances public usage and education programs with protection and preservation of natural and cultural resources. Approximately ninety percent (90%) of the Park District's lands are managed as natural parklands. 2.12 The HCP/NCCP was developed by the East Contra Costa County Habitat Conservation Plan Association ("HCPA") and contains a series of measures to minimize and mitigate to the maximum extent practicable the effects of specified categories of activities on certain special-status species. The HCP/NCCP also includes measures to provide for the conservation and management of the species and certain natural communities. 2.13 The County and the Cities intend to allow developers, infrastructure project proponents and certain landowners to receive coverage under the federal incidental take permit and State take authorization for certain development and other activities, subject to the conditions in this Agreement, the HCP/NCCP and the permits. The Implementing Entity may also negotiate agreements with other entities to allow certain activities of theirs to be covered by the permits, subject to the conditions in this Agreement, the HCP/NCCP and the permits, as described in Section 13.2.4. 2.14 To streamline other environmental regulatory programs, the HCP/NCCP is intended to serve as the basis for both a Streambed Alteration Agreement issuance program with CDFG, under Section 1602 of the California Fish and Game Code, and a Regional Permit with the United States Army 3 Corps of Engineers under Section 404 of the federal Clean Water Act, although the Parties acknowledge that the approval of those programs by CDFG and the Army Corps of Engineers is independent of this Agreement. 2.15 The HCP/NCCP was developed according to a planning process identified in a planning agreement between the HCPA and CDFG ("Planning Agreement") (executed November 19, 2003). The planning process included intensive study of the special-status species, their habitats, and other natural communities, and proposed development and other activities within the HCP/NCCP area; discussions between the HCPA and the Wildlife Agencies; input from independent science advisors and the public; and environmental review under the National Environmental Policy Act (42 U.S.C. §4321 et seq.) ("NEPA") and the California Environmental Quality Act (Pub. Resources Code, §21000 et seq.) ("CEQA"). 2.16 The Permittees are agreeing to substantial commitments of land, natural resources, financial resources, human resources and other assets to conserve and manage the special-status species, their habitats and other natural communities, in exchange for the assurances provided by the Wildlife Agencies in this Agreement. 3.0 DEFINITIONS The following terms as used in this Agreement will have the meanings set forth below. Terms specifically defined in FESA, CESA or NCCPA or the regulations adopted by USFWS and DFG under those statutes shall have the same meaning when used in this Agreement. Definitions used in this Agreement may elaborate on, but are not intended to conflict with, such statutory or regulatory definitions. 3.1 "Agreement" means this Implementing Agreement, which incorporates the HCP/NCCP and the Permits by reference. 3.2 "Authorized Take" means the extent of incidental Take of Covered Species authorized by the USFWS in the Federal Permit issued to the Permittees pursuant to Section 10(a)(1)(B) of FESA, and the extent of Take of Covered Species authorized by CDFG in the State Permit issued to the Permittees pursuant to California Fish and Game Code section 2835. 3.3 "Bald and Golden Eagle Protection Act" means the federal Bald and Golden Eagle Protection Act (16 U.S.C. §668 et seq.) and all rules, regulations and guidelines promulgated pursuant to that Act. 3.4 "CDFG" means the California Department of Fish and Game, a department of the California Resources Agency. 3.5 "CEQA" means the California Environmental Quality Act (Pub. Resources Code §21000 et seq.) and all rules, regulations and guidelines promulgated pursuant to that Act. 4 f R 3.6 "CESA" means the California Endangered Species Act (Fish & G. Code, §2050 et seq.) and all rules, regulations and guidelines promulgated pursuant to that Act. 3.7 "Changed Circumstances" means changes in circumstances affecting a Covered Species or the geographic area covered by the HCP/NCCP that can reasonably be anticipated by the Parties and that can reasonably be planned for in the HCP/NCCP. Changed Circumstances and planned responses to Changed Circumstances are more particularly defined in Section 12.2 of this Agreement and Chapter 10.2.1 of the HCP/NCCP. Changed Circumstances do not include Unforeseen Circumstances. 3.8 "Chapter" means a chapter of the HCP/NCCP. 3.9 "Conserve," "Conserving," or "Conservation" means to use, and the use of, methods and procedures within the HCP/NCCP Plan Area that are necessary to bring the federally and state-listed Covered Species to the point at which the measures provided pursuant to FESA and CESA are not necessary, and to maintain or enhance the condition of the non-listed Covered Species so that listing pursuant to FESA and CESA will not become necessary. 3.10 "Conservation Measure" means each action detailed in Chapter 5 of the HCP/NCCP that is a component of the Conservation Strategy. 3.11 "Conservation Strategy" means all of the conservation and management measures described in Chapters 5 through 7 of the HCP/NCCP and as further required by the Permits to minimize, mitigate and monitor the impacts of Take of the Covered Species, plus all reporting requirements described in Chapter 8.10 of the HCP/NCCP, and the Permittees' responses to Changed Circumstances described in Chapter 10.2.1. of the HCP/NCCP. The Conservation Strategy is more particularly defined in Section 7, below. 3.12 "Covered Activities" means those land uses and conservation and management activities described in Chapter 2.3 of the HCP/NCCP (including all ground-disturbing projects and activities that may occur within the Permit Area and Urban Development Area described in Chapter 2.3.1 of the HCP/NCCP, specific Rural Infrastructure Projects and Activities described in Chapters 2.3.2 & 2.3.3 of the HCP/NCCP, and management and recreational activities described in Chapter 2.3.4 of the HCP/NCCP) to be carried out by the Permittees, their agents, Third Party Participants and Participating Special Entities in the Permit Area that may result in Authorized Take of Covered Species during the term of the HCP/NCCP, and that are otherwise lawful. 3.13 "Covered Species" means the species, listed and non-listed, whose conservation and management are provided for by the HCP/NCCP and for which limited Take is authorized by the Wildlife Agencies pursuant to the Permits. Covered Species are listed in Exhibit B to this Agreement. 3.14 "ECCC HCP/NCCP EIS/EIR" means the Joint Environmental Impact Statement and Environmental Impact Report dated October, 2006 5 prepared to analyze the environmental impacts of the HCP/NCCP and Permits under NEPA and CEQA. 3.15 "Effective Date" means the date on which the State Pen-nit or the Federal Permit is issued, whichever is later. 3.16 "Federal Listed Species" means the Covered Species which are listed as threatened or endangered species under FESA as of the Effective Date, and the Covered Species which are listed as threatened or endangered pursuant to FESA during the term of the HCP/NCCP as of the date of such listing. 3.17 "Federal Permit" means the federal incidental Take permit issued by USFWS to the Permittees pursuant to Section 10(a)(1)(B) of FESA, as it may be amended from time to time. 3.18 "FESA" means the Federal Endangered Species Act of 1973, as amended (16 U.S.0 § 1531 et seq.) and all rules, regulations and guidelines promulgated pursuant to that Act. 3.19 "Fully Protected Species" means any species identified in California Fish and Game Code sections 3511, 4700, 4800, 5050 or 5515 that occur within the Plan Area. 3.20 "HCP" means a habitat conservation plan prepared pursuant to Section 10 of FESA. 3.21 "HCPA" means the East Contra Costa Habitat Conservation Planning Association, which was formed to develop the HCP/NCCP and is separate and distinct from the Implementing Entity. 3.22 "HCP/NCCP" means the Habitat Conservation Plan/Natural Community Conservation Plan prepared by the HCPA and approved by the Wildlife Agencies under Section 10 of FESA and Section 2835 of the California Fish and Game Code. 3.23 "Implementing Entity" means the East Contra Costa County Habitat Conservancy, a joint exercise of powers authority formed by the Cities and the County. 3.24 "Initial Urban Development Area" means the Urban Development Area where the Permits will apply to urban development as of the Effective Date, as depicted in Figure 2.3 of the HCP/NCCP. 3.25 "Jurisdictional Wetlands and Waters" means State and federally regulated wetlands and other water bodies that cannot be filled or altered without permits from the U.S. Army Corps of Engineers under Section 404 of the Clean Water Act (33 U.S.C. §1251 et seq.), from the State Water Resources Control Boards under either Section 401 of the Clean Water Act or the Porter-Cologne Water Quality Act (California Water Code, §13000 et seq.), or from CDFG under Section 1602 of the California Fish and Game Code, as further explained in Chapter 1.3.5 of the HCP/NCCP. 3.26 "Listed Species" means a species (including a subspecies, or a distinct population segment of a vertebrate species) that is listed as endangered or threatened under FESA or CESA. 6 3.27 "Management Activities" means all management actions required by the HCP/NCCP that are necessary to achieve HCP/NCCP biological goals and objectives. 3.28 "Maximum Urban Development Area" means the largest area in which urban development could occur without requiring a major amendment to the Permits pursuant to Section 17.0 of this Agreement, if the Cities amend their jurisdictional boundaries and/or the County amends the ULL during the term of the Permits, as long as those boundary amendments are consistent with the assumptions supporting the changes to the Urban Development Area provided in Chapter 2.3.1 of the HCP/NCCP. 3.29 "Migratory Bird Treaty Act" means the federal Migratory Bird Treaty Act (16 U.S.C. §703 et seq.) and all rules, regulations and guidelines promulgated pursuant to that Act. 3.30 "NCCP" means a natural community conservation plan prepared according to the NCCPA. 3.31 "NCCPA" means the California Natural Community Conservation Planning Act (Fish & G. Code, §2800 et seq.), as amended on January 1, 2003, and all rules, regulations and guidelines promulgated pursuant to that Act. 3.32 "NEPA" means the National Environmental Policy Act (42 U.S.C. §4321 et seq.) and all rules, regulations and guidelines promulgated pursuant to that Act. 3.33 "Neighboring Landowners" means owners of those lands within 1.0 mile of the Preserve System that are actively being used for agricultural purposes at the time the HCP/NCCP preserve is established, and that are eligible for Authorized Take beyond the baseline condition that existed prior to the establishment of the neighboring HCP/NCCP preserve. 3.34 "Non-listed Species" means a species (including a subspecies, or a distinct population segment of a vertebrate species) that is not listed as endangered or threatened under FESA or CESA. 3.35 "Participating Special Entities" mean entities within the Plan Area that are not subject to a City's or the County's land use authority, or entities that have projects not subject to a City's or the County's land use authority,that have entered into special agreements with the Implementing Entity to participate in the HCP/NCCP and receive Take authorization subject to the terms of this Agreement, the HCP/NCCP and the Permits, plus any additional conditions imposed in the special agreement. 3.36 "Party" or "Parties" means any or all of the signatories to this Agreement. 3.37 "Permit Area" means the area within the Plan Area where the Permittees are seeking authorization from the Wildlife Agencies for the Authorized Take of Covered Species while carrying out Covered Activities, including: (1) the Urban Development Area; (2) the footprint of specific Rural Infrastructure Projects and Activities outside the Urban Development Area described in Chapter 2.2.2 and Chapter.2.3.2 of the HCP/NCCP; and (3) 7 the boundaries of any land within the Plan Area that is acquired in fee title or by conservation easement and managed as part of the Preserve System. 3.38 "Permits" means the Federal Permit and the State Permit. 3.39 "Permittees" means the Implementing Entity, County, Cities, Park District and Flood Control District. 3.40 "Plan Area" means the geographic area analyzed in the HCP/NCCP, located in the eastern portion of Contra Costa County, as depicted in Figure 1-1 of the HCP/NCCP, attached to this Agreement as Exhibit A. The Plan Area is further described in detail in Chapter 1.2.1 of the HCP/NCCP. The Plan Area is also referred to as the "Inventory Area" in the HCP/NCCP. 3.41 "Planning Agreement" means the document executed on November 19, 2003, by the Implementing Entity and CDFG pursuant to the NCCPA to guide the preparation of the NCCP. 3.42 "Preserve Management Plan" means a site-specific implementation and management plan for each preserve prepared pursuant to Section 10.3.2 of this Agreement. 3.43 "Preserve System" means the land acquired and dedicated in perpetuity through either a fee interest or conservation easement intended to meet the preservation, conservation, enhancement and restoration objectives of the Conservation Strategy of the HCP/NCCP. 3.44 "State Listed Species" means the Covered Species which are listed as threatened or endangered species, or a candidate for such status, under CESA, as of the Effective Date, and the Covered Species that are listed as threatened or endangered, or a candidate for such status pursuant to CESA during the term of the HCP/NCCP, as of the date of such listing. 3.45 "State Permit" means the state Take permit issued to the Permittees pursuant to Section 2835 of the California Fish and Game Code, as it may be amended from time to time. 3.46 "Take" and "Taking" have the same meaning provided by FESA and its implementing regulations with regard to activities subject to FESA, and also have the same meaning provided in the California Fish and Game Code with regard to activities subject to CESA and NCCPA. 3.47 "Third Party Participants" means developers, infrastructure project proponents, Neighboring Landowners, Participating Special Entities and other persons or entities that qualify for and receive Take authorization from a Permittee in exchange for compliance with applicable conservation measures and other terms and conditions of this Agreement, the HCP/NCCP and the Permits, as further described in Section 13.2 of this Agreement. 3.48 "ULL" or "Urban Limit Line" means the boundary of allowable urban growth within the unincorporated area of Contra Costa County as approved by voters in 1990 and amended by the County Board of Supervisors in 2000 and in 2004. For purposes of this Agreement and amending the Urban Development Area below,the ULL adopted by voters in November 2006 will be regarded as an amendment to the ULL since 8 this boundary was approved after publication of the HCP/NCCP and the ECCCHCP/NCCP EIS/E1R. 3.49 "Unforeseen Circumstances" under the Federal Permit means changes in circumstances affecting a Covered Species or geographic area covered by the HCP/NCCP that could not reasonably have been anticipated by the plan developers and USFWS at the time of the plan's negotiation and development, and that result in a substantial and adverse change in the status of a Covered Species. ' "Unforeseen Circumstances" under the State Permit means changes affecting one or more species, habitat, natural community, or the geographic area covered by a conservation plan that could not reasonably have been anticipated at the time of plan development, and that result in a substantial adverse change in the status of one or more Covered Species. 3.50 "Urban Development Area" means the area designated in the HCP/NCCP for urban development, including (a) areas within the unincorporated areas of the County and within the Urban Limit Line ("ULL") as it may be amended during the Term of this Agreement, and/or (b) areas within the jurisdictional limits of the Cities as they may be amended during the Term of this Agreement. Boundary amendments to (a) or (b) will be automatically included in the Urban Development Area unless the Implementing Entity determines in writing that they are inconsistent with the assumptions supporting the changes to the Urban Development Area provided in Chapter 2.3.1 of the HCP/NCCP. 3.51 "USFWS" means the United States Fish and Wildlife Service, an agency of the United States Department of Interior. 3.52 "Wildlife Agencies" means USFWS and CDFG. 4.0 PURPOSES This Agreement defines the Parties' roles and responsibilities and provides a common understanding of actions that will be undertaken to avoid, minimize and mitigate the effects on the Covered Species caused by the Covered Activities within the Plan Area, and to provide for the conservation of the Covered Species within the Plan Area. The purposes of this Agreement are: 4.1 To ensure implementation of each of the terms and conditions of the HCP/NCCP, this Agreement, and the Permits; 4.2 To provide long term assurances to the Permittees that, pursuant to the federal "No Surprises" provisions of 50 Code of Federal Regulations, sections 17.22(b)(5) and 17.32(b)(5), and California Fish and Game Code section 2820, subdivision (f), as long as the terms and conditions of this Agreement, the HCP/NCCP, and the Permits are fully satisfied, no additional land, water or financial compensation or additional restrictions on the use of land, water, or other natural resources will be required of the Permittees, either to minimize and,, mitigate the impacts of Authorized Take, or to provide for the conservation and management of the Covered 9 Species in the Plan Area, except as provided in this Agreement and the HCP/NCCP or required by law; and 4.3 To describe remedies and recourse should any Party fail to perform its obligations as set forth in this Agreement. 5.0 INCORPORATION OF THE HCP/NCCP The HCP/NCCP and each of its provisions are intended to be, and by this reference are, incorporated herein. This Agreement is intended to specify, in contract language, the obligations of the Parties under the HCP/NCCP, recognizing that the HCP/NCCP is a conservation plan and was not drafted as a contract. In the event of any direct contradiction, conflict or inconsistency between this Agreement and the HCP/NCCP, the terms of this Agreement shall control. In all other cases, the provisions of this Agreement and the HCP/NCCP shall be interpreted to be consistent with and complementary to each other. 6.0 LEGAL FINDINGS AND REVIEW BY THE WILDLIFE AGENCIES 6.1 USFWS Findings As further described in the Federal Permit issued by USFWS, USFWS has found that the HCP/NCCP satisfies the permit issuance criteria under Section l0(a)(2)(B) of FESA for each Covered Species that is a Federal Listed Species within the jurisdiction of the USFWS. This finding supports the Take authorization for Federal Listed Species conferred to the Permittees as of the Effective Date. For each Covered Species that is not a Federal Listed Species as of the Effective Date, USFWS has found that the HCP/NCCP satisfies the permit issuance criteria under Section 10(a)(2)(B) of FESA that would otherwise apply if such Covered Species were a Federal Listed Species. This finding supports the Take authorization for Federal Non- listed Species that shall automatically be conferred to the Permittees if and when the species is listed pursuant to FESA. The Take of Federal Listed Species that are plants is not prohibited under FESA, and therefore Take authorization for federally listed plants is not necessary. Plant species included on the list of Covered Species are listed on the Federal Permit in recognition of the conservation measures and benefits provided for those plants under the HCP/NCCP. As of the Effective Date, any reference in this Agreement or the HCP/NCCP to the Authorized Take of Covered Species shall, for the purpose of incidental Take authorized under Section 10(a)(1)(B), refer solely to Federal Listed Species other than plants on the Covered Species list. If at any time during the term of this Agreement and the Federal Permit, any plant listed on the Covered Species becomes subject to the take prohibition under FESA, the Federal Permitshall automatically become effective as to such species, and the Permittees shall receive incidental Take Authorization for that plant. 10 Concurrent with the USFWS' execution of this Agreement, and on satisfaction of all other requirements, USFWS issued to the Permittees the Federal Permit under Section I0(a)(1)(B) of FESA, authorizing the incidental Take by the Permittees of each Covered Species within the jurisdiction of USFWS resulting from Covered Activities in the Permit Area. The Federal Permit is conditioned on compliance with the terms and conditions of this Agreement, the HCP/NCCP, and the Federal Permit. 6.2 CDFG Findings 6.2.1 State Listed and Non-Listed Species As further described in the State Permit and the findings issued by CDFG pursuant to the NCCPA, CDFG has found that the HCP/NCCP satisfies the permit issuance criteria listed in Sections 2820, 2821 and 2835 of the California Fish and Game Code for each Covered Species, both State Listed Species and Non-listed Species. This finding supports the Take authorization for State Listed Species and Non-Listed Species conferred to the Permittees as of the Effective Date. Concurrent with CDFG's execution of this Agreement, and on satisfaction of all other requirements, CDFG issued to the Permittees the State Permit under Section 2835 of the California Fish and Game Code, authorizing the Take by the Permittees of each Covered Species, both State Listed Species and Non-listed Species, within the jurisdiction of CDFG resulting from Covered Activities in the Permit Area. The State Permit is conditioned on compliance with the terms and conditions of this Agreement, the HCP/NCCP, and the State Permit. 6.2.2 State Fully Protected Species Although one Fully Protected Species, the golden eagle, is included in the list of Covered Species, Take of this species is not authorized by the State Permit. Section 3511 of the California Fish and Game Code prohibits CDFG from authorizing the take of golden eagles, except for necessary scientific research, including golden eagle recovery efforts. If at any time there is a change in state law such that CDFG may issue a Section 2835 Permit or other permit or authorization allowing the incidental Take of golden eagle, the Permittees may request an amendment to the State Permit or apply for a new permit to authorize Take of such species, as provided in Section 17.3 of this Agreement. 6.3 Environmental Review 6.3.1 Federal Law—National Environmental Policy Act Issuance of the Federal Permit under Section 10(a)(1)(B) of FESA to the Permittees by USFWS is an action subject to review under NEPA. USFWS is the lead agency under NEPA. Prior to the Effective Date, USFWS evaluated the HCP/NCCP pursuant to NEPA in the ECCC HCP/NCCP EIS/EIR. 11 6.3.2 State Law—California Environmental Quality Act Approval of the HCP/NCCP and issuance of the State Permit under Section 2835 of the California Fish and Game Code to the Permittees by CDFG is an action subject to review under CEQA. The HCPA is the lead agency, CDFG is the trustee agency, and CDFG and the other Permittees are responsible agencies under CEQA. On or before the Effective Date, the Implementing Entity and CDFG each evaluated the HCP/NCCP pursuant to CEQA in the ECCC HCP/NCCP EIS/EIR, and issued findings addressing whether the implementation of the HCP/NCCP would cause significant adverse impacts to the environment. Unless otherwise required by CEQA or other applicable law, the Permittees shall rely on and use relevant portions of the ECCC HCP/NCCP EIS/EIR and the CEQA Findings when conducting future environmental review of Covered Activities. 7.0 CONSERVATION STRATEGY Chapters. 5, 6, 7, 8.10, and 10.2.1 of the HCP/NCCP describe a Conservation Strategy that includes: the biological goals and objectives of the HCP/NCCP; avoidance and minimization measures to reduce impacts resulting from Covered Activities; land acquisition and assembly of the Preserve System; Preserve System management that includes habitat creation, enhancement and restoration and species population enhancement; Plan Area monitoring and reporting; and adaptive management. As further provided in this Agreement, the HCP/NCCP and the Permits, the Implementing Entity, other Permittees and Third Party Participants are each responsible to implement every applicable Conservation Measure and other measures described in the HCP/NCCP when engaging in Covered Activities and when otherwise required, as they may be modified through adaptive management, whether or not such measures are specifically referenced in this Agreement. For the purposes of this Agreement, all of these measures are collectively referred to as the "Conservation Strategy." 8.0 AVOIDANCE & MINIMIZATION OF IMPACTS 8.1 General Framework As required by FESA and NCCPA, the Conservation Strategy includes measures to avoid and minimize take of Covered Species and to conserve natural communities and Covered Species at the landscape-, habitat- and species-level. Avoidance and minimization measures include surveys and specific conditions on Covered Activities, all as further detailed in Chapter 6 of the HCP/NCCP. Chapter 6 of the HCP/NCCP provides further instructions to determine which avoidance and minimization measures are applicable to particular Covered Activities. Each Permittee and Third Party Participant shall implement all applicable avoidance and minimization measures as required by the HCP/NCCP. Prior to approving or carrying out any Covered Activity within their respective land use jurisdictions, the County and Cities shall evaluate the Covered Activity and apply the above referenced instructions to ensure that all applicable avoidance and minimization measures are incorporated into the Covered Activity, as further provided by this Agreement. For those Covered Activities that are not implemented directly by, or subject 12 to the land use authority of, any one of the Permittees, the Implementing Entity shall be responsible to ensure that all applicable avoidance and minimization measures are implemented. Throughout this Section 8.0,the phrase "the Permittee or the Implementing Entity" shall be construed to refer to the Permittee that will implement the Covered Activity or, for Covered Activities implemented by Third Party Participants, to the County or City with land use authority over the subject Covered Activity, and shall be construed to refer to the Implementing Entity only with regard to Covered Activities that are not implemented directly by any other Permittee and are not subject to the land use authority of the County or any City. 8.2 Surveys The applicable Permittee or the Implementing Entity shall require each proponent of a Covered Activity to submit a planning survey in accordance with Chapter 6.2.1 of the HCP/NCCP, prior to carrying out the Covered Activity. The Permittee or the Implementing Entity will ensure that the proponent of the Covered Activity implements and complies with all applicable preconstruction surveys and construction monitoring requirements described in Chapters 6.2.2 and 6.2.3 of the HCP/NCCP. 8.3 Responsibility for Projects at the Urban-Wildland Interface Development projects adjacent to land in the existing or planned Preserve System shall incorporate Conservation Measure 1.9, set forth in Chapter 6 of the HCP/NCCP, which requires design elements to minimize the indirect impacts of the development on the Preserve System. The applicable Permittee or the Implementing Entity shall ensure that each such project incorporates adequate design elements, and shall be responsible for enforcing compliance with Conservation Measure 1.9. All applicable design elements to establish a satisfactory interface shall be within the footprint of the development, and not within the Preserve System. The implementation and ongoing maintenance of the design elements shall be funded by the development project's property owner(s) and/or their successors, as described in Conservation Measure 1.9. In the event the Permittee or the Implementing Entity determine that complying with Conservation Measure 1.9 could severely impact a property owner's use or economic interest in private property, the Permittee or the Implementing Entity, as applicable, and the Wildlife Agencies shall promptly consult with the property owner to consider whether any modifications to Conservation Measure 1.9 are appropriate that will reduce the impact on the property owner. Where compliance with Conservation Measure 1.9 would deny a private property owner of substantially all economically viable use of his or her property, the Permittee or the Implementing Entity and the Wildlife Agencies shall confer and identify modifications or alternatives to Conservation Measure 1.9 that would not deny substantially all economically viable use. 8.4 No Take of Extremely Rare Plants or Fully Protected Species Nothing in this Agreement, the HCP/NCCP or the Permits is intended or shall be construed to allow the Take of extremely rare plant species listed in Table 6-5 of the 13 HCPINCCP ("No-Take Plant Population") or any Fully Protected Species under California Fish and Game Code sections 3511, 4700, 4800, 5050 or 5515. All Permittees and Third Party Participants shall avoid take of these species. 8.4.1 No-Take Plant Management Plans If a no-Take plant population is found on the site of a Covered Activity, it is the responsibility of the proponent of the Covered Activity, whether a Permittee or a Third Party Participant, to adequately preserve the population, prepare a long-term management and monitoring plan, and fund the implementation of this plan, all pursuant to Conservation Measure 1.11 in the HCP/NCCP. Each Third Party Participant shall submit the plan for approval to the Permittee or the Implementing Entity prior to carrying out the Covered Activity. In the event that complying with Conservation Measure 1.11 would severely impact a property owner's use or economic interest in private property, the Permittee or the Implementing Entity and the Wildlife Agencies shall promptly consult with the property owner to consider whether any modifications to Conservation Measure 1.11 are appropriate that will reduce the impact on the property owner, or whether the Implementing Entity may instead purchase the property as part of the Preserve System. Even if the property owner sells or otherwise transfers the land into the Preserve System, he or she must fund the preparation and long-term implementation of the management and monitoring plan for conservation of the plant population. 8.4.2 Golden Eagle Although the list of Covered Species includes the golden eagle, which is a Fully Protected Species, the Permits do not authorize Take of this species. CDFG acknowledges and agrees that if the avoidance measures set forth in the Conservation Strategy, including but not limited to Conservation Measure 1.11, are complied with, the Covered Activities are not likely to result in Take of golden eagles. If CDFG determines that such measures are not adequate to prevent Take of golden eagles, CDFG shall notify the Implementing Entity and other affected Permittees in writing of its determination, and propose new, additional or different conservation measures designed to avoid Take of these species. The affected Permittees shall implement the measures proposed by CDFG, or other measures mutually agreed to by the Parties, to avoid Take of golden eagles. 8.5 Design Requirements for Covered Roads Outside the Urban Limit Line New roads or major road improvements identified as a Covered Activity shall comply with the siting, design and construction requirements set forth in Conservation Measure 1.14 and Table 6-3 in the HCP/NCCP. The proponent of any such Covered Activity in the Plan Area shall submit an application to the Implementing Entity, CDFG and USFWS, describing how the project's siting, design and construction complies with Conservation Measure l.14, Table 6-3, and all other applicable conservation measures in 14 the HCP/NCCP. To qualify for Authorized Take, the project's siting, design, and construction must conform to the applicable requirements of the HCP/NCCP, as determined by the Wildlife Agencies based on the application. 8.6 Delineation of Jurisdictional Wetlands and Waters When Jurisdictional Wetlands and Waters are present on the site of a Covered Activity, the proponent of the Covered Activity shall provide a jurisdictional delineation verified by the U. S. Corps of Engineers, an appropriate State regulatory agency, or the Implementing Entity according to Chapter 6.3.1 of the HCP/NCCP and present a report on the verified delineation to the appropriate Permittee prior to carrying out the Covered Activity. 9.0 LAND ACQUISITION & ASSEMBLY OF PRESERVE SYSTEM 9.1 General Framework The Implementing Entity shall create a Preserve System by acquiring land and dedicating it in perpetuity to the Preserve System through either a fee interest or conservation easement. The Implementing Entity may also include in the Preserve System lands acquired by the Park District in accordance with Section 9.4, below, and lands acquired through partnerships with other entities in accordance with Section 9.5. Where the Implementing Entity itself acquires a fee interest in land, preservation shall be ensured through restrictive covenants, deed restrictions, or equivalent title restrictions, recorded in favor of the Wildlife Agencies. Where acquisition is by conservation easement, each conservation easement shall provide for the permanent protection and dedication of the land to the Preserve System, consistent with the criteria listed in Chapter 8.6.3 of the HCP/NCCP. All acquisitions shall adhere to the principles and priorities for preserve design, and for species population and habitat preservation and enhancement, as set forth in Conservation Measure 1.1 of the HCP/NCCP, including any Zone and Subzone Requirements detailed in Conservation Measure l.l and the acreage requirements set in Tables 5-7 and 5-8 of the HCP/NCCP. The creation of the Preserve System shall follow the process contained in the Conservation Measure 1.1, which the Parties acknowledge allows for some flexibility in how the Preserve System is ultimately assembled, including the acceptance of credits from approved mitigation or conservation banks, to account for availability and funding. The Implementing Entity shall also comply with the steps and guidelines for land acquisition described in Chapters 5.2 and 5.3 of the HCP/NCCP. As detailed in Table 5-9 of the HCP/NCCP, the Preserve System will contain a minimum of 21,450 acres under the Initial Urban Development Area scenario, or a minimum of 26,050 acres under the Maximum Urban Development Area scenario. 15 9.1.1 Assembly of Preserve System — Implementing Entity's Responsibility for Mitigation and Conservation Under FESA, the Permittees are required to mitigate the impacts of the Covered Activities to the maximum extent practicable, and under the NCCPA the Permittees are required to provide for the conservation and management of the Covered Species. To meet these legal requirements, the Implementing Entity shall acquire all land necessary to assemble the Preserve System according to the assumptions and criteria set forth in Tables 5-5a, 5-5b, 5-7 and 5-8 of the HCP/NCCP and Conservation Measure 1.1 of the HCP/NCCP, minus the Wildlife Agencies' contribution provided in Section 9.1.2 of this Agreement. Under both the Initial and Maximum Urban Development Area, the Implementing Entity's requirement to mitigate to the maximum extent practicable will be fully satisfied through land acquisitions and other actions using mitigation fees described in Chapter 9.3.1 of the HCP/NCCP. All other acquisitions will contribute to the conservation component, rather than the mitigation component, of the Preserve System and are therefore eligible for public funding. To complete the conservation component beyond the Wildlife Agencies' contribution in Section 9.1.2 of this Agreement, the Implementing Entity will pursue other local funding sources described in Chapter 9.3.2 of the HCP/NCCP, and will work jointly with the Wildlife Agencies to apply for competitive state, federal and other land acquisition grants that are not directly administered by the Wildlife Agencies. y 9.1.2 Assembly of Preserve System — The Wildlife Agencies' Contribution to Conservation and Recovery To contribute to the conservation and recovery goals of the Covered Species under FESA ,.and the NCCPA, the Wildlife Agencies herein agree to share in the effort to acquire and manage a portion of the number of acres needed to assemble the Preserve System as stated in Section 9.1 of this Agreement. Thus, the Wildlife Agencies agree to use reasonable efforts to contribute 8,700 acres, or to assist the Implementing Entity with obtaining federal and state funding to acquire the same number of acres, in addition to the land acquired by the Implementing Entity pursuant to Section 9.1.1 of this Agreement, for perpetual dedication to the Preserve System and long-term management by the Implementing Entity. The Wildlife Agencies will further assist the Implementing Entity with applications for state, federal and other land acquisition grants that are not directly administered by the Wildlife Agencies. As further explained in Section 9.3.3 of the HCP/NCCP, based on an analysis of past investments and potential future investments from these other state and federal funding sources, the Parties expect such funding sources to be sufficient to contribute an additional 4.650 acres of land to the Preserve System. The agreement by the Wildlife Agencies in this Section 9.1.2 is subject to the limitations provided in Section 24.8 of this Agreement. In the event the Wildlife Agencies are not able to fulfill their agreement in this Section 9.1.2, the Implementing Entity and the Wildlife Agencies will work together cooperatively to modify the Conservation Strategy and Permits as necessary. However, because acquisitions and other actions that will be 16 adequately funded by the revenues generated by the County, Cities and Flood Control District through mitigation fees and local funding mechanisms described in Chapter 9.3.1 of the HCP/NCCP will meet the mitigation responsibilities of the Permittees under FESA, in no case will the failure of the Wildlife Agencies to achieve their intended contribution goal under this Section 9.1.2 result in the revocation or suspension of the Federal Permit pursuant to Sections 19.0 or 21.0 of this Agreement. 9.2 Stay Ahead Provision The Implementing Entity shall ensure that the assembly of the Preserve System stays ahead of Authorized Take under the Permits, as more particularly described in the Stay Ahead Provision set forth in Chapter 8.6.1 of the HCP/NCCP. The Permittees shall not cause Take or extend Take authorization to a Third Party Participant if such Take would result in a failure to comply with the Stay Ahead Provision. To provide flexibility in complying with the Stay Ahead Provision throughout the first ten (10) years of the term of this Agreement.. the Implementing Entity may satisfy the Stay Ahead Provision in Chapter 8.6.1 using either Stay Ahead Measurement Method"#1 or#2 detailed in Chapter 8.6.1. After the first ten (10) years, the Implementing Entity shall use Stay Ahead Measurement Method#1. The Implementing Entity shall report the status of the Stay Ahead Provision in each Annual Report (see Section 11.4). The first Annual Report shall be prepared following the first full calendar year of HCP/NCCP implementation and shall report on all applicable activities and results from the Effective Date to the end of the first full calendar year. Compliance with the Stay Ahead Provision shall be determined based on each Annual Report: however, compliance with the Stay Ahead Provision shall not be required until the time at which the second Annual Report is due. If, based on any Annual Report (beginning with the second Annual Report), the Stay Ahead Provision is not met for any land-cover type, the Implementing Entity and the Wildlife Agencies shall meet and confer within thirty (30) days of the Annual Report to develop and implement a mutually agreeable plan of action to remedy the situation and achieve compliance with the Stay Ahead Provision, as further described in Chapter 8.6.1 of the HCP/NCCP. The plan of action may include a requirement that Permittees must require some or all project proponents to provide land in-lieu of mitigation fees. In addition, if the Implementing Entity concludes at any time that progress towards assembling the Preserve System is likely to fail to meet the requirements of the Stay Ahead Provision, the Implementing Entity may recommend that the County and the Cities require land in-lieu of mitigation fees. If a land in-lieu of fee requirement is necessary either as part of a plan of action to remedy a failure to meet the Stay Ahead Provision or based on the Implementing Entity's independent determination, the Implementing Entity shall provide written notice thereof to the other Permittees. The Implementing Entity's notice will recommend a scope (e.g., to projects of greater than ten acres) of a land in-lieu of mitigation fee requirement. Each Permittee shall thereafter consider requiring project proponents to provide land in-lieu of mitigation fees in accordance with the notice and the guidelines in Chapter 8.6.7 of the HCP/NCCP and 17 Section 13.2.2.2 of this Agreement. The Permittees acknowledge that failure to comply with the Stay Ahead Provision may result in suspension or termination of the Permits. If the Implementing Entity recommended the land in-lieu of fee requirement based on its own determination, the Implementing Entity may recommend termination of the requirement at its discretion by providing written notice of its recommendation to the other Permittees, which shall thereafter consider terminating the requirement. If the Implementing Entity recommended the requirement to remedy non-compliance with the Stay-Ahead provision, the Implementing Entity may recommend terminating the requirement only after progress towards assembling the Preserve System complies with the Stay Ahead Provision or with the written concurrence of the Wildlife Agencies. 9.3 Rough Proportionality Standard Pursuant to section 2820, subdivision (b)(9) of the California Fish and Game Code, the Implementing Entity, County, Cities and Flood Control District must "ensure that the implementation of mitigation and conservation measures on a plan basis is roughly proportional in time and extent to the impact on habitat or Covered Species." Section 2820, subdivision (b)(9) also requires a statement of consequences of the failure to acquire lands in a timely manner. For purposes of the HCP/NCCP, whether "rough proportionality" is met shall be determined pursuant to Chapter 8.6.1 of the HCP/NCCP. If at any time CDFG provides written notification that rough proportionality on a plan basis has not been met, then the Implementing Entity, County, Cities and Flood Control District will either: (1) regain rough proportionality within forty-five (45) days; or (2) enter into an agreement with CDFG within forty-five (45) days, which will set a course of action to expeditiously regain rough proportionality. The agreement may include any of a variety of commitments or adjustments to the NCCP designed to regain rough proportionality, including but not limited to, a plan to acquire, restore, or enhance lands of appropriate vegetation or land-cover type expeditiously. If the Implementing Entity, County, Cities and Flood Control District do not regain rough proportionality within forty-five (45) days or enter into an agreement with CDFG within forty-five (45) days setting a course of action to regain rough proportionality, CDFG will suspend or revoke the State Permit, in whole or in part, pursuant to California Fish and Game Code section 2820, subdivision (c). The Parties agree that partial suspension or revocation may include removal of one or more species from the Covered Species list for purposes of the State Permit or reducing the geographic scope of the Take authorization provided by the State Permit. Before suspending or revoking the State Permit in whole due to a failure to maintain rough proportionality, DFG shall meet with the Permittees to determine whether mutually agreeable modifications to the HCP/NCCP would obviate a suspension or revocation in whole. The Parties agree that if CDFG suspends or revokes the State Permit, the Permittees may, based on the HCP/NCCP, apply for one or more CESA incidental take permits under section 2081, subdivision (b), of the California Fish 18 and Game Code to replace the State Permit, in which case CDFG shall expeditiously review the application in accordance with CESA. 9.4 Land Acquired by the Park District The Park District's acquisitions within the Plan Area will be formally credited towards the obligations set forth in Conservation Measure 1.1, including the Stay Ahead Provision described in Section 9.2 of this Agreement, and added to the Preserve System where the acquisition contributes to meeting the goals and objectives of the HCP/NCCP, is approved by the Implementing Entity, ensures preservation through restrictive covenants, deed restrictions, or equivalent title restrictions, recorded in favor of the Wildlife Agencies, and the Park District agrees to manage the land in perpetuity pursuant to a Preserve Management Plan as described in Section 10.3.2 of this Agreement. A Park District acquisition may be so credited before the Preserve Management Plan has been completed, provided the conditions described in Chapter 8.6 of the HCP/NCCP are met. The Implementing Entity and Park District may further agree to record a temporary easement or permanent conservation easement on new Park District lands to provide additional assurances that the lands will be preserved and managed in accordance with Section 10.3.2 of this Agreement. Subject to the availability of funding, the Park District agrees to maintain its historical rate of land acquisition within the Plan Area, which the Park District estimates will result in the acquisition of approximately 10,000 acres over the initial 30-year term of this Agreement, the Permits and the HCP/NCCP. The Park District agrees to collaborate with the Implementing Entity to,maximize the extent and ecological value of jointly-funded land acquisitions in the Plan Area and further agrees that funds provided by the Implementing Entity for land management and for land acquisition within the Plan Area will be used to benefit the HCP/NCCP, and will not replace or redirect planned or actual Park District expenditures within the Plan Area. 9.5 Land Acquired Through Partnerships with Other Agencies and Organizations The Implementing Entity may enter into agreements and other partnerships involving land acquisitions with other land management agencies and organizations where those acquisitions meet the goals and objectives of the HCP/NCCP. However, such acquisitions will be formally credited towards the obligations set forth in Conservation Measure 1.1, including the Stay Ahead Provision described in Section 9.2 of this Agreement, only where the acquisition (a) contributes to meeting the goals and objectives of the HCP/NCCP, (b) contains a conservation easement or other permanent dedication of land to the Preserve System, (c) will be managed in perpetuity pursuant to a Preserve Management Plan, as described below in Section 10.3.2 of this Agreement, and (d) is approved by the Implementing Entity. Such acquisitions may initially be credited toward the obligations set forth in Conservation Measure 1.1 (including the Stay Ahead Provision) before the Preserve Management Plan has been completed, provided the conditions described in Chapter 8.6 of the HCP/NCCP are met. 19 9.6 Lands and Revenues Acquired Before Issuance of the Permits Section 5.1.7 of the Planning Agreement provides that lands acquired before issuance of the Permits may be credited towards the land acquisition obligations of the HCP/NCCP under certain circumstances. The Parties agree that lands acquired after the Planning Agreement was executed, but before issuance of the Permits, shall be formally credited towards the obligations set forth in Conservation Measure 1.1 as set forth in Table 5-21 and Chapter 8.6.2 of the HCP/NCCP, in the subsection entitled "Land Acquisition During Plan Development." In addition, the Parties acknowledge that, under terms negotiated separately between public and private projects proponents and the Wildlife Agencies, funds have been committed to the implementation of the HCP/NCCP to mitigate impacts from projects in the Inventory Area that were approved during the development of the HCP/NCCP. Such funds include funds in the account established by CDFG and maintained by the California Wildlife Foundation for the mitigation of impacts in East Contra Costa County and mitigation fees collected by the County for the mitigation of biological impacts resulting from the construction of the State Route 4 Bypass and from certain flood control projects. The Parties agree that all such funds will be transferred to the Implementing Entity upon its request and shall be used by the Implementing Entity at its discretion to implement HCP/NCCP conservation actions in the Inventory Area. 9.7 Faria South/Costa and Montecito Project Mitigation Portions of two proposed projects southwest of the City of Pittsburg near Bailey Road, the "Faria South/Costa Project" and the "Montecito Project," were designated in the draft HCP/NCCP as high priority for inclusion in the Preserve System. After release of the draft HCP/NCCP for public review, the City of Pittsburg in a public initiative adopted an urban limit line that included both projects in their entirety. The Parties agreed that the public initiative reduced the feasibility of conserving land in that area to the extent proposed in the draft HCP/NCCP. Consequently, the Parties considered an alternative preservation approach in that area. As the result of subsequent discussions with the proponent of the two projects, the Wildlife Agencies identified substantial, mutually agreeable, additions of land to the Preserve System and funding for HCP/NCCP implementation that would maintain the level of conservation evaluated in the draft HCP/NCCP while allowing revision of the HCP/NCCP such that significant portions of the two projects are no longer identified as a high priority for inclusion in the Preserve System. The mitigation, which would maintain the level of conservation, includes dedication of land or easements comprising approximately one-thousand (1,000) acres (most of which is within the high priority acquisition area) and payment of substantial fees. The mitigation is expected to include the approximately sixty-three (63) acre area identified as high priority within Zone l a, as well as portions of the Smith, West Coast, and Nortonville properties. These measures differ from the general mitigation fee and land acquisition requirements of the HCP/NCCP.Nevertheless they were contemplated in the final HCP/NCCP and they are consistent with the requirements of and further the 20 HCP/NCCP Conservation Strategy. Additionally, they provide sufficient mitigation for the two projects. The details of the measures associated with the "Faria South/Costa Project" and the "Montecito Project" will be set forth in an in-lieu fee agreement as described in Section 13.2.2.2. Since this agreement is expected to be finalized prior to formation of the Implementing Entity, the agreement will be executed by the Wildlife Agencies. The Implementing Entity may become a signatory thereto at a later date. Execution of such an in-lieu agreement, which conforms to the structure set forth in Chapter 8.6.7, or which otherwise meets the criteria for in-lieu agreements set forth in Chapter 8.6.7, supports Take authorization for the two projects under the Permits. Because the change in high priority acquisition areas was based in part on the expectation that an alternative mitigation and preservation approach that maintains the level of conservation evaluated in the draft HCP/NCCP would be established in an in-lieu agreement, such an agreement is necessary in order to authorize Take for these properties under the HCP/NCCP and the Permits. The mitigation provided under the terms of the agreement will count toward fulfillment of the HCP/NCCP obligations set forth in Conservation Measure l.l. 9.8 Cypress Corridor Project Mitigation The Cypress Corridor in the northeast portion of the City of Oakley is included in the HCP/NCCP's Urban Development Area. However, Oakley has completed or is near completion of its environmental review of many projects in the area. The proponents of these projects will pursue, or are currently pursuing, independent take authorizations under Section 7 of FESA and/or CESA. As the result of discussions with the project proponents, the Wildlife Agencies have identified substantial, mutually agreeable additions of land to the Preserve System and funding for HCP/NCCP implementation that they expect will provide sufficient mitigation for the projects without compromising the overall viability of the Preserve System or the Implementing Entity's ability to meet HCP/NCCP goals and objectives. (Copies of the June 1, 2006 agreement between the Wildlife Agencies and the project proponents, the "East Cypress HCP/NCCP Memorandum of Agreement," may be obtained from CDFG or the Implementing Entity.) If such projects receive independent take authorizations under FESA and CESA based on these alternative mitigation requirements, the projects will not be Covered Activities or otherwise be covered by or subject to the HCP/NCCP or this Agreement, and will not receive take authorization under the Permits. However, the Parties agree that the take resulting from such projects and the mitigation provided will be accounted for in the HCP/NCCP and this Agreement as if the projects were Covered Activities for purposes of calculating Stay Ahead and Rough Proportionality requirements in accordance with Section 9.2 and Section 9.3 of this Agreement and with Chapter 8.6.1 of the HCP/NCCP and will be credited toward the obligations set forth in Conservation Measure ].I. 21 10.0 PRESERVE MANAGEMENT 10.1 Responsibility of the Implementing Entity The Implementing Entity shall carry out the preserve management responsibilities, as further described in this Section 10.0 and Chapters 5 and 7 of the HCP/NCCP. The Implementing Entity may delegate planning and implementation tasks to other Parties or qualified third parties, including but not limited to universities, scientists and other contractors. However, the Implementing Entity shall remain solely responsible for ensuring the management of the preserve lands in perpetuity and the timeliness and quality of all requirements of preserve management, except where the Park District has assumed that responsibility as provided in Section 10.2, below. 10.2 Management of Park District Lands in Preserve System The Park.District agrees to manage all of its lands that are formally credited toward the obligations in Conservation Measure 1.1 and added to the Preserve System, as described in Section 9.4, in accordance with a Preserve Management Plan, as described in Section 10.3.2. The Implementing Entity or other Permittee shall provide sufficient funds to the Park District to pay for incremental costs incurred to prepare and update the Preserve Management Plan and incremental land management costs incurred to meet the land management standards set forth in Conservation Measure 1.1 in the HCP/NCCP. The Park District shall be obligated to manage its lands in accordance with a Preserve Management Plan only to the extent that it is provided sufficient funds for such incremental costs. If the Permittees' fail to provide the Park District with such funds and, as a result of the lack of funding, the Park District does not manage some or all of its lands that have been added to the Preserve System in accordance with a Preserve Management Plan, the amount of the Park District's lands that have been credited toward the obligations in Conservation Measure 1.1 may be reduced accordingly by the Wildlife Agencies. As used herein, "incremental costs" include only those costs related to implementing the HCP/NCCP that would not otherwise be incurred by the Park District to manage its lands. The Park District agrees to continue to fund the management of all of its lands within the Plan Area to achieve its internal management standards and will receive funding from the other Permittees only for incremental costs attributable to meeting more rigorous standards imposed by the HCP/NCCP. Similarly, the Park District shall ensure that long-term management of its lands within the Plan Area meets HCP/NCCP standards (i.e., beyond the 30-year initial term of this Agreement, the Permits and the HCP/NCCP) provided it receives the required incremental funding for that purpose. The Implementing Entity may seek to enter into separate agreements with the Park District to incorporate newly acquired Park District lands into the Preserve System and may also seek to enter into one or more separate agreements with the Park District to normalize cost-sharing arrangements and other coordination with regard to land acquisition and management within the Plan Area, as further described in Section 13.6. 22 10.2.1 Recreational Uses The Parties acknowledge that providing recreational opportunities on Park District lands is integral to the Park District's mission. The Parties further acknowledge that certain low-intensity recreational uses are appropriate within the Preserve System, subject to appropriate constraints to protect Covered Species and natural communities. The Parties therefore agree that it is appropriate for the Implementing Entity, in consultation with the Park District, to integrate the Park District's recreation planning goals and objectives into the system-wide preserve management plans and parcel-specific Preserve Management Plans described in Section 10.3, below, for Park District lands within the Plan Area that are being credited to the HCP/NCCP, to the extent consistent with the HCP/NCCP's land management goals and objectives and the requirements of this Agreement and the Permits. 10.2.2 Coverage for Park District Land Management in Plan Area The Park District's management of lands that are formally credited toward the obligations in Conservation Measure 1.1 and added to the Preserve System in accordance with Section 9.4, above, shall be a Covered Activity. The Parties acknowledge that the Park District may in the future seek State and Federal ,Take authorization for management of its other lands in or near the Plan Area and may elect to prepare a separate habitat conservation plan, a subarea habitat conservation plan/natural community conservation plan designed to be integrated with the HCP/NCCP, or other conservation planning document, for that purpose. 10.3 Preserve Management Plans 10.3.1 System-Wide Preserve Management The Implementing.Entity shall prepare and implement plans pursuant to Conservation Measures 1.4 and 1.5 that apply to the entire Preserve System to control exotic species and manage recreational uses. The Implementing Entity shall evaluate these system-wide plans for.effectiveness and revise them as appropriate (a) at least every five (5) years until all preserve acquisition is completed, (b) every five (5) years after preserve acquisition is completed, and (c) whenever necessary under Changed Circumstances pursuant to Section 12.2 of this Agreement. 10.3.2 Preserve Management Plans Within two (2) years of the dedication of any parcel of land that is not cultivated for agriculture to the Preserve System, the Implementing Entity shall ensure that a Preserve Management Plan prepared pursuant to Conservation Measure 1.2 adequately provides for any necessary management or enhancement of the habitat, species populations, or other aspects of that land. Concurrent with the dedication of a particular parcel of land to the Preserve System, the Implementing Entity will determine whether an existing Preserve Management Plan provides sufficient implementing mechanisms and 23 management guidance to satisfy the Conservation Strategy, or whether a new Preserve Management Plan must be prepared. If a new Preserve Management Plan is needed; the Implementing Entity shall be responsible for ensuring the land is managed to maintain and improve Covered Species habitat using the best available information and management methods in practice within the Plan Area until the new Preserve Management Plan is completed, as described in Conservation Measure 1.2. The Implementing Entity shall evaluate each Preserve Management Plan for effectiveness and revise it as appropriate (a) at least every five (5) years until all preserve acquisition is completed, (b) as necessary pursuant to the adaptive management provisions of the HCP/NCCP, and (c) whenever necessary under Changed Circumstances pursuant to Section 12.2 of this Agreement. 10.3.3 Agricultural Management Plans The Implementing Entity shall prepare an Agricultural Management Plan ("AMP") for cultivated agricultural lands that are acquired for preservation, pursuant to Conservation Measure 1.3. For agricultural lands that are acquired through fee title, the Implementing Entity shall include the terms of the AMP in any lease or other agreement that allows continued agricultural use of the land. For lands that are acquired through conservation easement, any key elements (i.e., essential requirements, restrictions or other criteria required for the AMP) shall be included or referenced in the conservation easement, and the AMP itself shall be completed within one (1) year after recording the conservation easement. 10.3.4 Grazing Leases Within the Preserve System The Parties acknowledge that livestock grazing can be an important management tool in the Preserve System. The Implementing Entity may include lands in the Preserve System that are subject to existing grazing leases, as long as the _grazing leases are consistent with the applicable Preserve Management Plan or AMP. The Implementing Entity shall review all existing grazing leases within ninety (90) days of acquisition of such lands and shall terminate or revise the leases as necessary to bring them into compliance with the Preserve Management Plan, the AMP, and/or the terms and conditions of this Agreement, the HCP/NCCP and the Permits; however, the Implementing Entity shall not be required to violate the terms of existing grazing leases. If a Preserve Management Plan has not yet been prepared, the Implementing Entity may continue any existing grazing leases on a parcel until a Preserve Management Plan is prepared. Once a Preserve Management Plan is prepared, the Implementing Entity may renew an existing grazing lease or enter into a new grazing lease only if it is consistent with the Preserve Management Plan and includes the requirements and conditions of Chapter 8.6.4 of the HCP/NCCP. 10.4 Review and Approval By the Wildlife Agencies All system-wide preserve management plans, Preserve Management Plans, and AMPS must be reviewed and approved by the Wildlife Agencies. The Implementing Entity will 24 also update and revise such plans as part of the HCP/NCCP's adaptive management program. The Implementing Entity shall submit such plans or revisions in writing with a cover sheet explaining the plan or revisions and the rationale for such plan or revisions. The Wildlife Agencies shall review the submission and provide a consistent response in writing within sixty (60) days. The written response shall contain either an approval, which shall not be unreasonably withheld, a description of reasonable modifications needed to reach approval, or an objection accompanied by a written explanation of the objection. During preparation and agency review of such plans and revisions, preserve management shall continue according to the HCP/NCCP and best scientific practices. 11.0 PLAN AREA MONITORING & REPORTING 11.1 Responsibility of the Implementing Entity The Implementing Entity shall carry out the compliance and effectiveness monitoring and reporting, as further described in Chapters 6.0 and 7.0 of the HCP/NCCP. The Implementing Entity may delegate monitoring and reporting tasks to other Parties or qualified third parties, including universities, scientists and other contractors. However, the Implementing Entity shall remain solely responsible for all monitoring and reporting requirements in perpetuity and for the timeliness and quality of the monitoring and reporting plan. 11.2 Compliance Monitoring The Implementing Entity shall conduct compliance monitoring to track key implementation elements of the HCP/NCCP, as specifically described in Chapters 8.9 and 8.10 of the HCP/NCCP and further provided herein. 11.2.1 Compliance Monitoring Data Repository Within eight (8) months of the Effective Date, the Implementing Entity shall develop a Geographic Information System-linked data repository pursuant to Chapter 8.9 of the HCP/NCCP, to organize all required compliance monitoring data, as such data is more specifically described in Section 11.2.2 of this Agreement and Chapter 8.9 of the HCP/NCCP. The Implementing Entity will either use the HabiTrak database developed by CDFG, or a Geographic Information System-based data repository that is transferable to HabiTrak. The Implementing Entity shall make the data repository accessible to the Parties to this Agreement, including the Wildlife Agencies. The Wildlife Agencies shall safeguard sensitive species information to the extent permitted by the Freedom of Information Act and the California Public Records Act. Subject to the California Public Records Act, the Implementing Entity shall maintain sole discretion over whether to grant access to any of the data in the database to third parties, including Third Party Participants. 25 11.3 Effectiveness Monitoring The Implementing Entity shall accomplish effectiveness monitoring of the HCP/NCCP by implementing all elements of the integrated monitoring and adaptive management program described in Chapter 7.0 of the HCP/NCCP. 11.4 Annual Report and Public Workshop By March 15 of each year following the Effective Date, the Implementing Entity shall prepare and submit an Annual Report to the Wildlife Agencies and the Permittees that summarizes: the previous calendar year's monitoring and research results; an accounting, by project and cumulatively, of habitat acreage lost and conserved within the Plan Area by habitat type or vegetation community; and assessment of the rough proportionality standard under Section 9.3 of this Agreement. The first Annual Report shall be prepared by no later than March 15 following the first full calendar year of HCP/NCCP implementation and shall report on all applicable activities and results from the Effective Date to the end of the first full calendar year. Each Annual Report shall address, at a minimum, the descriptions and analyses detailed in Chapter 8.10 of the HCP/NCCP. The Implementing Entity shall make the latest Annual Report accessible to the public via the Internet, and at a publicly noticed open meeting jointly conducted on an annual basis by the Implementing Entity, USFWS and CDFG to disseminate and discuss the annual report. 11.5 Annual Implementation Review and Meeting The Parties will review the Annual Report described in Section 11.4 above for the purposes of evaluating the implementation of the HCP/NCCP during the preceding year and the adequacy of the overall progress being made towards reaching the conservation goals of the HCP/NCCP, utilizing HabiTrak or a Geographic Information System-based system that is transferable to HabiTrak. Items to be considered in the evaluation include, but are not limited to, all contributions towards the assembly of the Preserve System, such as public lands, private mitigation lands, land donations, land acquisitions, and management activities undertaken or proposed on habitat lands. Habitat management activities undertaken or proposed will also be discussed. The Parties will also review all available reports and recommendations from Science Advisors, Land Management Agencies, the Independent Conservation Assessment Team, and others involved in preserve management and monitoring as described in Chapter 8.3.7 of the HCP/NCCP. If, based on this information, Wildlife Agencies determine that adequate progress towards implementation of the HCP/NCCP is not being achieved, Wildlife Agencies shall provide their findings and the basis for such findings in writing to the Permittees; and the Parties will take the actions specified in the HCP/NCCP and this Agreement to remedy that situation. If Wildlife Agencies determine that adequate progress towards implementation of the HCP/NCCP is being achieved, but that it is nevertheless not providing_ sufficient protection to the Covered Species, the Wildlife Agencies shall provide their findings and the basis for such findings in writing to the Permittees; and then the Parties shall work cooperatively and take appropriate actions consistent with the 26 HCP/NCCP and this Agreement (such as altering management activities or redirecting mitigation and acquisition) in order to remedy the situation. Once each year, the Implementing Entity and any other Permittee that wishes to participate shall meet with Wildlife Agencies to review and coordinate implementation of the HCP/NCCP. 11.6 Other Reports Within thirty (30) days of receipt of a written request from the Wildlife Agencies, the Implementing Entity will provide any additional information in its possession or control related to implementation of the HCP/NCCP for the purpose of assessing whether the terms and conditions of this Agreement, the HCP/NCCP and the Permits are being fully implemented. 11.7 Monitoring by the Wildlife Agencies The Wildlife Agencies may conduct inspections and monitoring of the site of any Covered Activity and may inspect any data or records required by the HCP/NCCP, this Agreement or the Permits in accordance with applicable law and regulations. 12.0 ADAPTIVE MANAGEMENT & CHANGED CIRCUMSTANCES 12.1 , General Framework of Adaptive Management The Implementing Entity shall implement an adaptive management program as further described in Chapter 7.0 of the HCP/NCCP, in order to gauge the effectiveness of the HCP/NCCP, propose and modify conservation measures as the need arises, and address Changed Circumstances. The adaptive management program will be based on biological monitoring results and directed research, including hypotheses and studies, as applied to specific .pilot projects identified in Table 7-3 of the HCP/NCCP. The specific responsibilities of the Implementing Entity in carrying out the adaptive management program are further defined in Chapter 7.0 of the HCP/NCCP. 12.1.1 Adaptive Management Initiated by the Implementing Entity The Implementing Entity shall implement the HCP/NCCP adaptive management program when changes in management practices are necessary to achieve the HCP/NCCP's biological objectives, or to respond to monitoring results or new scientific information, as described more particularly in Chapter 8.0 of the HCP/NCCP. The Implementing Entity will make such changes without awaiting notice from the Wildlife Agencies, and will report to the Wildlife Agencies on any actions taken pursuant to this section. 12.1.2 Adaptive Management Initiated by the Wildlife Agencies If the Wildlife Agencies determine that one or more of the adaptive management provisions in the HCP/NCCP have been triggered and that the Implementing Entity has not changed its management practices in accordance with Chapter 7.0 of the HCP/NCCP, the Wildlife Agencies shall notify the Implementing Entity and direct the Implementing Entity to make the required changes. Within thirty (30) days after receiving such notice, 27 the Implementing Entity shall initiate the required changes and report to the Wildlife Agencies on its actions. Such changes are provided for in the HCP/NCCP, and hence do not constitute Unforeseen Circumstances or require amendment of the Permits or HCP/NCCP, except as otherwise provided in this section. 12.2 Changed Circumstances 12.2.1 Federal Definition Under Federal law, the term "Changed Circumstances" is defined to mean changes in circumstances affecting a Covered Species or the geographic area covered by the HCP/NCCP that can reasonably be anticipated by the Wildlife Agencies and the Parties, and that can reasonably be planned for in the HCP/NCCP. (50 C.F.R. §17.3.) 12.2.2 State Definition Under State law, the term "Changed Circumstances" is defined to mean reasonably foreseeable circumstances that could affect a Covered Species or Plan Area covered by the NCCP. (Fish & G. Code, §2805, subd. (c).) 12.2.3 Identification of Changed Circumstances Changed Circumstances identified and planned for in the HCP/NCCP are specifically listed in Chapter 10.2.1 of the HCP/NCCP, including new species listing; natural communities lost to fire, invasion by new exotic species, pond or wetland control structures fail, flooding destroys riparian plantings, and natural communities lost to drought. In the event one of those specific Changed Circumstances occurs, the Implementing Entity shall implement the remedial conservation measures identified in Chapter 10.2.1 for the specific Changed Circumstance. As long as the HCP/NCCP is being properly implemented, USFWS and CDFG shall not require any Permittee or Third Party Participant to implement any conservation measures that are not listed in Chapter l 0.2.1 of the HCP/NCCP to respond to Changed Circumstances. The Parties agree that Chapter 10 of the HCP/NCCP addresses all reasonably foreseeable Changed Circumstances and describes specific responses for them; other changes not identified as Changed Circumstances shall be treated as Unforeseen Circumstances. 12.2.4 Responses to Changed Circumstances Initiated by the Implementing Entity The Implementing Entity shall notify the Wildlife Agencies in writing within thirty (30) days after learning that any of the Changed Circumstances listed in Chapter 10.2.1 of the HCP/NCCP has occurred. As soon as practicable thereafter, but no later than thirty (30) days after learning of the Changed Circumstances, the Implementing Entity will initiate responsive actions in the manner described in Chapter 10.2.1 of the HCP/NCCP, to the extent necessary to mitigate the effects of the Changed Circumstances on Covered Species, and will report to the Wildlife Agencies on its actions. The Implementing Entity will initiate such actions without awaiting notice from the Wildlife Agencies. Such 28 actions are provided for in the HCP/NCCP, and hence do not constitute Unforeseen Circumstances or require amendment of the Permits or HCP/NCCP. 12.2.5 Responses to Changed Circumstances Initiated by the Wildlife Agencies If the Wildlife Agencies determine that Changed Circumstances have occurred and that the Permittees have not responded in accordance with Chapter l 0.2.1 of the HCP/NCCP, the Wildlife Agencies shall notify the Permittees specifically what changes must be made. The Permittees shall make the required changes expeditiously. Within thirty (30) days after receiving the Wildlife Agencies' notice, the Implementing Entity shall report on the Permittees' action(s). Such changes are provided for in the HCP/NCCP, and hence do not constitute Unforeseen Circumstances or require amendment of the Permits or HCP/NCCP. 12.2.6 Listing of Species that are Not Covered Species In the event that a non-Covered Species that may be affected by Covered Activities becomes listed under FESA or CESA, the Implementing Entity will initiate responsive actions or measures to avoid Take of, jeopardy to, or adverse modification of critical habitat developed in consultation with the Wildlife Agencies until the respective Permit is amended to include such species, or until the Wildlife Agencies notify the Implementing Entity that such measures are no longer needed to avoid take of,jeopardy to, or adverse modification of the critical habitat of the non-Covered Species. 12.3 No Increases In Take This section does not authorize any modifications that would result in an increase in the amount and nature of Take, or increase the impacts of Take, of Covered Species beyond that analyzed under the original HCP/NCCP and any amendments thereto. Any such modification must be reviewed as an HCP/NCCP amendment under Section 17.6 of this Agreement. 13.0 IMPLEMENTING MECHANISMS As of the Effective Date, each of the Permittees is granted Take authorization under the Permits, pursuant to the terms and conditions of this Agreement, the HCP/NCCP and the Permits. The Implementing Entity shall be responsible for overseeing and managing the implementation of the HCP/NCCP. However, the Permittees collectively are ultimately responsible for compliance with all applicable terms and conditions of this Agreement; the HCP/NCCP and the Permits including all applicable conservation measures, management plans, monitoring and reporting requirements; and funding. 13.1 Role of the Implementing Entity The Implementing Entity's responsibilities are described in Chapter 8.3 of the HCP/NCCP and include, but are not limited to: 29 • Overseeing the assembly and management of the Preserve System; • Receiving, managing, tracking, reporting and expending HCP/NCCP implementation fee revenues collected by the other Permittees; • Auditing HCP/NCCP implementation fee revenues to determine whether the fees must be increased or decreased, in accordance with Chapter 9 of the HCP/NCCP; Calculating annually and distributing to Permittees tables depicting the appropriate amounts of automatic fee increases, in accordance with Chapter 9 of the HCP/NCCP; • Negotiating and approving in-lieu land dedications in accordance with Chapter 8.6.7 of the HCP/NCCP and Section 13.2.2.2 of this Agreement and resolving other matters concerning HCP/NCCP implementation that require approval of the Implementing Entity, as specified in this Agreement and the HCP/NCCP including, but not limited to, the matters summarized in Chapter 8.7 of the HCP/NCCP; • Ensuring that mitigation and conservation measures are being implemented roughly proportional in time and extent to the impact of Authorized Take, as provided in Section 9.3, and ensuring compliance with the Stay Ahead Provision, as provided in Section 9.2; • Receiving, managing and expending HCP/NCCP implementation fee payments made by, and extending Take authorization to, Participating Special Entities, in accordance with Section 13.2.4 of this Agreement; • Providing technical support and advice to Permittees about what HCP/NCCP measures apply to Covered Activities they implement or approve and how they should be applied, including, but not limited to, avoidance and minimization measures and the amount of fee payments; • Promoting coordination among Permittees to ensure that the HCP/NCCP is implemented consistently and effectively; • Receiving, managing and expending fee payments provided by Permittees for Covered Activities they implement, in accordance with Section 13.1.1, below; • Preparing Preserve Management Plans, as further described in Section 10.3 of this Agreement and Chapter 5 and Chapter 7 of the HCP/NCCP; • Preparing the Annual Report; and • Administering a Neighboring Landowner Agreement program in accordance with Section 13.2.3. 13.1.1 Projects Implemented by Permittees Most Covered Activities are likely to be implemented by Third Party Participants in accordance with Section 13.2, below. However, some projects, such as rural road projects, certain infrastructure projects, and certain operation and maintenance activities, will be implemented directly by the Permittees. Before implementing a Covered Activity, a Permittee must comply with the terms of this Agreement, the HCP/NCCP and the Permits, including as applicable payment of the development fee, the rural road fee, the wetland fee and temporary impact fee set forth in Chapter 9 of the HCP/NCCP. Where a Covered Activity implemented by a Permittee falls within the category of 30 activities subject to one of the HCP/NCCP implementation fees, the Permittee shall calculate the fee payment as described in Chapter 9 of the HCP/NCCP and shall transfer the payment to the Implementing Entity before initiating the Covered Activity. Permittees may use any applicable fee payment option provided in the HCP/NCCP including, but not limited to, providing land in lieu of some or all fees, as described in Section 13.2.2.2 of the Agreement and Chapter 8.6.7 of the HCP/NCCP. Each Permittee shall be responsible for ensuring its own compliance with the terms of this Agreement, the HCP/NCCP and the Permits with regard to any Covered Activity it implements. To document its compliance, each Permittee shall complete an application substantially in accordance with Chapter 8.7 of the HCP/NCCP for each Covered Activity it implements, shall provide a copy of the application to the Implementing Entity, and shall retain the application in its files for not less than three (3) years. 13.2 Extension of Take Authorization to Third Party Participants 13.2.1 General Provisions As further provided by this Agreement, the HCP/NCCP and the Permits, the Implementing Entity, County and Cities are authorized to extend the Take authorization to Third Party Participants, including developers and other project proponents, Neighboring Landowners, Participating Special Entities and other persons or entities that agree to comply with all applicable conservation measures and other terms and conditions of this Agreement, the HCP/NCCP and the Permits. The Implementing Entity, County and Cities shall each be responsible for determining whether an application from a potential Third Party Participant complies with all applicable terms and conditions and must make findings supporting such determination before extending Take authorization to the Third Party Participant. Prior to extending Take authorization to any Third Party Participant, the County and Cities must have adopted an HCP/NCCP implementing ordinance pursuant to Section 13.3 of this Agreement. 13.2.2 Project Proponents The proponent of any project that is a Covered Activity shall be eligible for Take authorization in accordance with the HCP/NCCP and the Permits. To receive Take authorization under the Permits, the project's proponent must enter into an agreement with a Permittee that has approval authority over the project and assume the obligation to comply with all terms and conditions of this Agreement, the HCP/NCCP and the Permits that apply to the project, or the Permittee must impose such terms and conditions as conditions of project approval. Provided the project proponent is obligated under an agreement or conditions of project approval to comply with such terms and conditions, the Permittee shall extend the Take authorization to the project proponent upon issuance of a grading permit for the project or, if a grading permit is not required, issuance of the first construction permit. The project proponent thereafter shall be a Third Party Participant. 3l Once the Take authorization has been extended to the project, it shall remain in effect with regard to the project, even if the Permits are suspended or revoked, for as long as the Third Party Participant fully complies with the applicable terms and conditions of this Agreement, the HCP/NCCP, and the Permits; provided, however, that if either or both of the Permits are suspended or revoked, the USFWS or CDFG may suspend or revoke the extension of Take authorization to the Third Party Participant if the USFWS or CDFG determines that implementation of the project would likely jeopardize the continued existence of a Covered Species. Before making such a determination, the USFWS and CDFG will meet and confer with the Third Party Participant and the Permittee to discuss the threat of jeopardy and possible ways to avoid it short of suspending or revoking the extension of Take authorization to the project. 13.2.2.1 Early Extension of Take Authorization A project proponent may receive an early (i.e., before issuance of a grading permit or first construction permit) extension of Take authorization from a Permittee by paying all HCP/NCCP related fees that apply to the proposed project, or by providing land in lieu of some or all fees as described in Section 13.2.2.2, and by agreeing in writing to all other applicable terms and conditions of this Agreement, the HCP/NCCP, and the Permits upon, or at any time after, the Permittee's approval of the project. Upon receiving such Take authorization, the project proponent shall become a Third Party Participant and Take resulting from the project shall be authorized under the Permits. The Implementing Entity may, by written notice to the Permittees, suspend early extensions of take authorization if it.determines such extensions are hindering its ability to implement or administer the HCP/NCCP (for example, by accumulating fee revenues faster than they can be spent, thereby diminishing the value of these funds in the likely event that costs continually increase). Any such prohibition by the Implementing Entity shall apply to subsequent early extensions of Take authorization only and shall not apply retroactively, where fees or in-lieu land dedications were made before the prohibition is communicated in writing to the other Permittees. A project proponent seeking an early extension of Take authorization shall be required to pay the fees at the rates in effect for the calendar year in which the project proponent pays them, including any subsequent fee adjustments that occur during that calendar year (for example, after March 15 under the automatic fee adjustment or after a periodic audit). This calendar-year adjustment applies only to early extensions of Take authorization, and shall not apply to payments that coincide with a grading permit or first construction permit so long as that grading permit or first construction permit is issued before the calendar-year adjustment occurs. The project proponent shall not have_to provide any supplemental payment for fee increases in subsequent calendar year(s), even if such increases occur before the grading permit or first construction permit is issued for the project. Unless otherwise mutually agreed upon by the Permittee, Implementing Entity, and the Wildlife Agencies, the fees may not be paid for and Take authorization may not be extended to a particular project until the Permittee has approved a tentative subdivision map or similarly detailed project plan for the project. 32 13.2.2.2 Land Dedication In-Lieu of Development Fee As an incentive to expedite assembly of the Preserve System; a project proponent may propose to dedicate land to the Preserve System in lieu of all or part of the fees ordinarily required under the HCP/NCCP, as further described in Chapter 8.6.7. Any and all in-lieu land dedications and fee reductions shall be subject to the approval of the Implementing Entity and, if applicable, the Permittee with land use authority over the project. The Implementing Entity shall negotiate and evaluate in-lieu land dedication proposals on a case-by-case basis using the criteria identified in Chapter 8.6.7. The details of an in-lieu land dedication, as well as the Implementing Entity's approval and the project proponent's written commitment to implement the proposal, shall be reflected in a written agreement between the Implementing Entity, the project proponent, and the Permittee that has approval authority over the project. The project proponent shall be permitted to use the alternative measures reflected in the in-lieu land dedication agreement, including alternative fee arrangements, to meet the requirements of this Agreement, the HCP/NCCP and the Permits. All applicable terms of the HCP/NCCP shall apply to the project, except as expressly provided in the agreement. Land use approvals issued to a project proponent by a Permittee shall incorporate the requirements of the in-lieu agreement, and shall not impose requirements for HCP/NCCP compliance that are expressly excepted in the agreement. The Implementing Entity shall make each in-lieu agreement available for public review. 13.2.3 Neighboring Landowners The Implementing Entity shall administer a Neighboring Landowner Agreement ("NLA'') Program, to provide Take authorization on neighboring lands that are actively being used for agricultural purposes as of the Effective Date and that are within 1.0 mile of land dedicated to the Preserve System. Take authorization for Neighboring Landowners shall only be valid for those Neighboring Landowners that request a Certificate of Inclusion from the Implementing Entity, which shall be issued only to those Neighboring Landowners that meet the criteria provided in Chapter 10.2.9 of the HCP/NCCP and in a form approved by the Wildlife Agencies. Take authorization through the NLA Program shall not apply to individual animals or populations of Covered Species and natural communities on neighboring lands that exist prior to the establishment of the nearby portion of the Preserve System. as identified in a baseline survey conducted at the time of the issuance of the Certificate of Inclusion. Take authorization shall only apply to those Covered Species that may disperse onto the neighboring lands after the dedication of the nearby portion of the Preserve System. 13.2.4 Participating Special Entities The Implementing Entity may extend Take authorization to Participating Special Entities, which may include but are not limited to school, water, irrigation, transportation, park and other districts and utilities, pursuant to a contractual agreement that defines any and all planning, implementation, management, enforcement and funding responsibilities 33 necessary for the entity to comply with this Agreement, the HCP/NCCP, and the Permits. The Implementing Entity may enter into such an agreement with a Participating Special Entity only after the Participating Special Entity provides documentation showing how it will comply with all applicable terms and conditions of this Agreement, the HCP/NCCP and the Permits in an application satisfying the criteria detailed in Chapter 8.4 of the HCP/NCCP. Among other things, the agreement must adequately address the legal and equitable remedies available to the Implementing Entity if the Participating Special Entity fails to perform its contractual obligations. As provided in Chapter 8.5 of the HCP/NCCP, after execution of such an agreement and the payment of all fees specified by the Implementing Entity, including development fees, wetland fees, and temporary impact fees, if applicable, the Implementing Entity shall issue a Certificate of Inclusion to the Participating Special Entity that specifically describes the authorized Take and required conservation measures. The Implementing Entity shall enforce the terms of this Agreement, the HCP/NCCP, and the Permits with regard to any such Participating Special Entity and shall withdraw the Certificate of Inclusion and terminate any Take authorization extended to the Participating Special Entity if the Participating Special Entity fails to comply with such terms. 13.3 HCP/NCCP Implementing Ordinance No later than ninety (90) days after the Effective Date, the County and the Cities shall each consider the adoption of an HCP/NCCP implementing ordinance substantively similar to the model ordinance attached to this Agreement as Exhibit C that sets forth the process by which the jurisdiction will review applications from potential Third Party Participants that wish to carry out a Covered Activity, impose HCP/NCCP related mitigation fees, and extend Take authorization to eligible applicants. Each HCP/NCCP implementing ordinance must further establish the development fee and wetlands fee in accordance with Chapter 9 of the HCP/NCCP and provide an alternative for a qualified dedication of land in lieu of the development fee, in accordance with Section 13.2.2.2 of this Agreement and Chapter 8.6.7 of the HCP/NCCP. Neither the County nor any of the Cities shall extend Take authorization to a Third Party Participant prior to its adoption of an HCP/NCCP implementing ordinance substantively similar to Exhibit C. 13.3.1 Application Requirements Each HCP/NCCP implementing ordinance must include, among other things, application requirements in accordance with Chapter 6.2 of the HCP/NCCP. At a minimum, each implementing ordinance must require each Third Party Participant to submit the following to the County or City with jurisdiction over the proposed project: • Definition of project area, including project footprint, extent of construction, and extent of ongoing maintenance activities. • Written description of project, including maps. • Results of planning surveys, in accordance with Chapter 6 of the HCP/NCCP. • Evidence of compliance with avoidance and minimization measures, in accordance with Chapter 6 of the HCP/NCCP. 34 • Quantification of anticipated direct and indirect impacts on NCP/NCCP land- cover types, Covered Species habitat, and other HCP/NCCP resources. • Proposed conservation measures (e.g., land dedication, acquisition, fee). 13.3.2 Conditions of Take Authorization Each HCP/NCCP implementing ordinance must enable the County or City, as applicable, to include all necessary terms and conditions of this Agreement, the HCP/NCCP and the Permits into the development agreement, permit approval, or other instrument that extends the Take authorization to the Third Party Participant. 13.3.3 Adaptation of Model Ordinance by Permittees The model ordinance attached to this Agreement as Exhibit C is intended to exemplify the necessary substantive terms of an HCP/NCCP implementing ordinance; it is not intended to dictate the precise terms of each such ordinance. The County and each City may adapt the model ordinance to reflect its independent findings, to maximize administrative efficiency, or for other reasons, provided the substance of the operative terms in the model ordinance are reflected in each implementing ordinance. 13.3.4 Application to Covered Activities The implementing ordinances will apply only to Covered Activities for which a grading permit, construction permit, or other approval is required from the County or City that has adopted the ordinance. 13.4 Conservation Easements In addition to acquiring lands for the Preserve System by fee title, the Implementing Entity may negotiate conservation easements. All conservation easements shall be recorded in perpetuity pursuant to Civil Code section 815 et seq. and subject to all of the terms and conditions of Chapter 8.6.3 of the HCP/NCCP. Conservation easements shall be dedicated to the Implementing Entity, CDFG or another entity approved by the Wildlife Agencies, including but not limited to land trusts, parks agencies, and other qualified nonprofit organizations. CDFG and USFWS shall be named as third party beneficiaries on all conservation easements. The Parties intend to develop a template conservation easement document that may be used for Preserve System lands. 13.5 Enforcement The Wildlife Agencies shall enforce this Agreement by ensuring that the Permittees comply with all terms and conditions of this Agreement, the HCP/NCCP and the Permits. The Wildlife Agencies shall enforce this Agreement in accordance with Section 21, below. To the extent consistent with Section 21, and without limiting the Wildlife Agencies' rights or obligations under Section 21, if a Wildlife Agency concludes that an action or inaction of a Permittee violates the terms or conditions of this Agreement, the 35 HCP/NCCP or the Permits, the Wildlife Agency shall focus its enforcement effort on that Permittee. The Permittees shall be responsible for complying with all applicable terms and conditions of this Agreement and shall enforce this Agreement by ensuring that all Third Party Participants comply with all applicable terms and conditions of this Agreement, the HCP/NCCP and the Permits. 13.6 Collaboration between Implementing Entity and Park District The Parties agree that effective collaboration between the Implementing Entity and the Park District will likely make it possible to create and manage the Preserve System in a more cost-efficient manner, allow for better integration of the Preserve System with existing Park District lands in the Plan Area, and help to coordinate implementation of the HCP/NCCP with the Park District's current and future activities. For these purposes, the Implementing Entity and Park District shall develop a mutually agreeable programmatic strategy to collaborate on land acquisition and management in the Plan Area. The programmatic strategy may include, without limitation, standard terms and conditions for real property transactions and management plans, a joint acquisition planning process, a process for developing joint grant applications, and a strategy for coordinating the long-term management of the Preserve System with the long-term management of other Park District lands. As part of the programmatic strategy, the Permittees expect to enter into an agreement establishing the terms under which one or more Preserve Management Plans will be prepared for lands acquired by the Park District within the Plan Area since November 19, 2003 (the effective date of the Planning Agreement) and to take other steps as necessary to credit those lands toward the obligations set forth in Conservation Measure 1.1, in accordance with Section 9.4 of this Agreement. To facilitate this collaboration, the Implementing Entity and Park District shall create a liaison committee under mutually agreeable terms that will make recommendations to the Implementing Entity and the Park District regarding potential joint land acquisitions, land management and monitoring, grant applications and other actions to create or manage the Preserve System. Notwithstanding the foregoing, nothing in this Agreement is intended to prohibit or prevent the Implementing Entity or the Park District from collaborating with other public agencies or private entities to help to create and manage the Preserve System or for any other purpose. The Parties do not expect the programmatic land acquisition and management strategy to implement all of the HCP/NCCP and anticipate that other independent or collaborative actions by the Implementing Entity will be necessary to implement the HCP/NCCP in its entirety. Notwithstanding the foregoing, nothing in this Agreement is intended to prohibit or prevent the Implementing Entity from proceeding independently of the Park District with an acquisition or land management activity within the Plan Area. Similarly, this Agreement does not prevent or prohibit the Park District from proceeding independently of the Implementing Entity with an acquisition or land management activity within the Plan Area. The Park District and the Implementing Entity each agree that it will not oppose or obstruct the other should it pursue an independent land acquisition or land management activity within the Plan Area. 36 13.7 Collaboration between Implementing Entity and Flood Control District The Parties agree that effective collaboration between the Implementing Entity and the Flood Control District will help to coordinate implementation of the HCP/NCCP with the Flood Control District's current and future activities. The Implementing Entity and the Flood Control District may enter into separate agreements to facilitate coordination with regard to such activities. 14.0 FUNDING 14.1 General Commitment The Implementing Entity, County, Cities and Flood Control District shall ensure that all required mitigation, conservation, monitoring, reporting and adaptive management measures are adequately funded throughout the term of this Agreement, and that monitoring, reporting and adaptive management measures are adequately funded in perpetuity. The Permittees do not intend to use funds from their respective general funds to implement the Conservation Strategy; rather they intend to obtain sufficient funds through a comprehensive strategy further described in Chapter 9.3 of the HCP/NCCP, primarily depending on mitigation fees, dedications, and real estate transfer fees from future developments, federal and state grants pursuant to Section 9.1.2 of this Agreement, and maintenance of existing conservation efforts by local and state agencies that have a demonstrated record of acquiring and managing lands for recreational and conservation purposes in Contra Costa County. The Permittees may use or establish other local funding measures, including, but not limited to, utility surcharges, special taxes or assessments, or bonds. Each of the Permittees is responsible to seek all feasible increases in revenues that are necessary to keep pace with rising costs, as described in Chapter 9.3.1 of the HCP/NCCP. Each Permittee will promptly notify the Wildlife Agencies of any material change in the Permittee's financial ability to fulfill its obligations under this Agreement. In addition to providing any such notice, the Implementing Entity will include in its Annual Report to the Wildlife Agencies such reasonably available financial information to demonstrate the Permittees' ability to fulfill their obligations. 14.2 Private Funding of No-Take Plant Management Plans Consistent with Section 8.4.1 of this Agreement, if a no-Take plant population is found on a site of a Permittee's Covered Activity, the Permittee shall ensure that the population is adequately preserved (e.g., link to existing public lands, provide adequate buffers), prepare a long-term management and monitoring plan, and fund the implementation of the plan. For Third Party Participant Covered Activities, the Implementing Entity, County, or applicable City shall obligate the Third Party Participant to preserve the population, prepare a long-term management and monitoring plan, and fund the implementation of the plan before conferring Take authorization to the Third Party Participant. Land that meets HCP/NCCP goals and objectives may be transferred to the Implementing Entity to implement long-term management (and to meet some 37 HCP/NCCP goals and objectives) as long as the Permittee or Third Party Participant, as the case may be, fully funds preparation of the required plan and addresses the management needs of the no-Take plant population. 14.3 Long-Term Management Funding The Implementing Entity shall develop and begin to implement a detailed plan for long- term funding of the administration and management of the Preserve System beyond the Term of the Permits, and shall secure all necessary commitments to collect such funding before developing 7,259 acres (fifty percent [50%] of the Maximum Urban Development Area as provided in Table 4-3 of the HCP/NCCP) or within fifteen (15)) years of the Effective Date, whichever comes first. 14.4 Effect of Inadequate Funding In the event there is inadequate funding to implement the HCP/NCCP, USFWS and CDFG will assess the impact of the funding deficiency on the scope and validity of the Permits. Unless the Permittees exercise the authority to withdraw pursuant to Section 20.0 of this Agreement or the Wildlife Agencies revoke the Permits pursuant to Section 19.0 of this Agreement, the Parties agree that they will meet and confer to cooperatively develop a strategy to address the funding shortfall, and to undertake all practicable efforts to maintain the level of conservation and Take authorization afforded by the Permits until the funding situation can be remedied. 15.0 RIGHTS, OBLIGATIONS & ASSURANCES 15.1 Rights & Obligations of the Permittees 15.1.1 Rights As of the Effective Date, the Permittees may Take the Covered Species while carrying out Covered Activities in the Permit Area, as further authorized by and subject to the conditions of this Agreement, the HCP/NCCP, and the Permits. The Covered Activities include all activities listed in Chapter 2.3 of the HCP/NCCP. The Take authority issued to the Permittees applies to all of their respective elected officials, officers, directors, employees, agents, subsidiaries, and contractors who engage in any Covered Activity. The Implementing Entity shall periodically conduct an educational program to fully inform all such persons and entities of the terms and conditions of the Permits, and the Implementing Entity and other Permittees shall be responsible for supervising such persons' and entities' compliance with those terms and conditions. All contracts between Permittees and such persons and entities regarding the implementation of any Covered Activity or the NCP/NCCP shall require their compliance with the Permits. 38 15.1.2 General Obligations The Permittees will fully and faithfully perform all obligations assigned to them collectively, and to each of them respectively, under this Agreement, the HCP/NCCP, and the Permits, including but not limited to the obligations assigned in the following chapters of the HCP/NCCP: Chapter 5.0 (Conservation Strategy), Chapter 6.0 (Conditions on Covered Activities), Chapter 7.0 (Monitoring and Adaptive Management Program), Chapter 8.0 (Plan Implementation), and Chapter 9.0 (Funding). The Implementing Entity, County and Cities shall extend Take authorization to Third Parry Participants only in accordance with this Agreement, the Permits and the HCP/NCCP. Each Permittee shall ensure that its own Covered Activities comply with this Agreement, the Permits and the HCP/NCCP. The mitigation fees for Covered Activities implemented by Third Party Participants or the Permittees themselves shall be transferred to the Implementing Entity, which shall comply with all applicable provisions of the Mitigation Fee Act (Gov. Code §66000, et seq.) as to the deposit, accounting, expenditure and reporting of such fee revenues. 15.1.3 Obligations In The Event of Suspension or Revocation In the event that USFWS and/or CDFG suspend or revoke the Permits pursuant to Sections 19.0 and 21.0 of this Agreement, the Permittees will remain obligated to fulfill their mitigation, enforcement, management, and monitoring obligations, and their other HCP/NCCP obligations, in accordance with this Agreement and applicable statutory and regulatory requirements for all Covered Activities authorized for Take prior to the suspension or revocation. 15.1.4 Assurances for Third Party Participants Pursuant to the "No Surprises"regulations described below at Section 15.2.2, in the event of a finding of Unforeseen Circumstances, the USFWS cannot require the commitment of additional land, water or financial compensation without the consent of the affected Permittee or Third Party Participant. Likewise, as set forth below in Section 15.3.2, CDFG shall not require any Permittee or Third Party Participant to provide, without its consent, additional land, water or financial compensation, or additional restrictions on the use of land, water, or other natural resources, for the purpose of conserving Covered Species with respect to Covered Activities, even in the event of Unforeseen Circumstances, provided the Permittees are properly implementing this Agreement, the HCP/NCCP and the terms and conditions of the State Permit. The Permittees will not impose on any Third Party Participants any mitigation, compensation, or other requirement in excess of those required by this Agreement, the HCP/NCCP and the Permits, for the impacts of Covered Activities on Covered Species without the consent of the Third Party Participant. Nothing in this Agreement shall preclude the Permittees from imposing on Third Party Participants any mitigation, compensation, or other requirements in excess of those required by this Agreement, the 39 HCP/NCCP and the Permits for impacts other than impacts of Covered Activities on Covered Species. Such other impacts may include, but are not limited to, impacts on parks, recreational facilities, and agriculture. 15.1.5 Interim Obligations upon a Finding of Unforeseen Circumstances If the Wildlife Agencies make a finding of Unforeseen Circumstances with regard to a Federal Listed Covered Species, during the period necessary to determine the nature and location of additional or modified mitigation, the Permittees will avoid contributing to an appreciable reduction in the likelihood of the survival and recovery of the affected species. As described below at Section 15.2.2 and Section 15.3.2, the Wildlife Agencies shall be responsible for implementing such additional measures or modifications, unless the Permittees consent to do so. 15.2 USFWS Obligations and Assurances 15.2.1 General Obligations Concurrent with its execution of this Agreement,.and satisfaction of all other applicable legal requirements, USFWS will issue Permittees a Federal Permit under Section 10(a)(1)(B) of FESA, authorizing incidental Take by the Permittees of each Federal Listed Covered Species resulting from Covered Activities in the Permit Area. USFWS shall monitor the Permittees' implementation of the HCP/NCCP and compliance with the Federal Permit. USFWS will also provide technical assistance and timely review, collaboration and consultation to the Permittees regarding implementation of the HCP/NCCP, as provided in this Agreement and the HCP/NCCP, throughout the duration of the Federal Permit. USFWS will also contribute to the conservation and recovery goals of the Covered Species pursuant to Section 9.1.2 of this Agreement. 15.2.2 No Surprises Assurances Provided that the Permittees have complied with their obligations under this Agreement, the HCP/NCCP and the Federal Permit, USFWS cannot require any Permittee or Third Party Participant, without its consent, to provide additional mitigation beyond that provided for in the HCP/NCCP under Unforeseen Circumstances, in accordance with the "No Surprises" regulations at 50 Code of Federal Regulations section 17.22(b)(5) and In section 17.32(b)(5). Changed Circumstances, as described in 50 Code of Federal Regulations section 17.22(b)(5)(i), are adequately addressed in Chapter 7 and Chapter 10 of the HCP/NCCP, and Permittees shall implement any measures for such circumstances as called for in the HCP/NCCP, as described in Section 12.2 of this Agreement. 40 15.2.3 Critical Habitat Designations in the Plan Area Provided that the Permittees have complied with their obligations under this Agreement, the HCP/NCCP and the Federal Permit, USFWS agrees that, to the maximum extent allowable after public review and comment, lands within the "Inventory Area" described in the HCP/NCCP will not be designated as critical habitat for any Covered Species that is federally listed, including but not limited to California red-legged frog, California tiger salamander and Alameda whip snake. Subject to available funding, USFWS agrees, unless otherwise required by law after public review and comment, to reassess and revise the boundaries of any existing designated critical habitat of Covered Species to exclude the HCP/NCCP Inventory Area, including but not limited to critical habitat designated for vernal pool fairy shrimp, longhorn fairy shrimp, and Contra Costa goldfields. This Section 15.2.3 shall not apply to lands within the city limits of the City of Antioch or within the "action area" used for purposes of any consultation pursuant to Section 7 of FESA regarding any proposed expansion of Los Vaqueros Reservoir. 15.3 CDFG Obligations and Assurances 15.3.1 General Obligations Concurrent with its execution of this Agreement, and after satisfaction of all other applicable legal requirements, CDFG will issue Permittees a State Permit under Section 2835 of the California Fish and Game Code authorizing Take by the Permittees of each State Listed and Non-listed Covered Species resulting from Covered Activities in the Permit Area, to the extent permitted by law. CDFG shall monitor the Permittees' implementation of the HCP/NCCP and compliance with the State Permit. CDFG shall also provide technical assistance and timely review, collaboration and consultation to the Permittees regarding implementation of the HCP/NCCP, as provided in this Agreement and the HCP/NCCP, throughout the duration of the State Permit. CDFG will also contribute to the conservation and recovery goals of the Covered Species pursuant to Section 9.1.2 of this Agreement. 15.3.2 Long-Term Assurances Except as otherwise provided in this subsection or required by law, CDFG shall not require any Permittee or Third Party Participant to provide, without its consent, additional land, water or financial compensation, or additional restrictions on the use of land, water, or other natural resources, for the purpose of conserving Covered Species with respect to Covered Activities, even in the event of Unforeseen Circumstances, provided the Permittees are properly implementing this Agreement, the HCP/NCCP and the terms and conditions of the State Permit. The provisions of this Agreement and the HCP/NCCP that address adaptive management and Changed Circumstances, including changes to the legal status of Fully Protected Species and non-Covered Species, are not Unforeseen Circumstances and therefore are not subject to these assurances. However, CDFG acknowledges that such adaptive management and Changed .Circumstances provisions are not intended to require modifications to the HCP/NCCP's mitigation program that 41 would require additional funding or to impose significant additional burdens on Permittees or Third Party Participants. 16.0 CONSULTATIONS WITH OTHER PUBLIC AGENCIES 16.1 Section 7 Consultations with USFWS Nothing in this Agreement is intended to alter the obligation of a federal agency to consult USFWS pursuant to Section 7 of FESA (16 U.S.C. §1536(a)). Unless otherwise required by law or regulation, in any consultation under Section 7 involving the Permittees or an existing or prospective Third Party Participant and a proposed public or private development project in the Permit Area that may adversely affect one or more Covered Species that are Federal Listed Species, USFWS shall ensure that the biological opinion for the proposed project is consistent .with the biological opinion issued for the HCP/NCCP and the Federal Permit, provided that the proposed project is consistent with the HCP/NCCP and the Federal Permit. Unless otherwise required by law or regulation, USFWS shall not impose measures on a Permittee or an existing or prospective Third Party Participant in excess of those that have been or will be required by this Agreement, the HCP/NCCP, and the Permits. Before completing a Section 7 consultation for a Covered Activity in which the USFWS proposes to require a measure in excess of the requirements of this Agreement, the HCP/NCCP, or the Permits, the USFWS shall meet and confer with the affected Permittee and, if there is one, the existing or prospective Third Party Participant to discuss alternatives to the imposition of the measures that would meet the applicable legal or regulatory requirements. If the USFWS, Permittee and (if there is one) Third Party Participant cannot agree on an alternative, the Permittee may refer the matter for resolution in accordance with Section 21.0. 16.2 Consultations by CDFG Except as otherwise required by law, CDFG shall not recommend or otherwise seek to impose through consultation with other public agencies any mitigation; compensation or habitat enhancement requirements regarding impacts of Covered Activities on Covered Species within the Permit Area that are in excess of those that have been or will be required by this Agreement, the HCP/NCCP, and the Permits. 17.0 AMENDMENTS TO THE HCP/NCCP AND THE FEDERAL AND STATE PERMITS 17.1 Clerical Changes Clerical changes to the HCP/NCCP shall be made by the Implementing Entity on its own initiative or in response to a written request submitted by any Permittee or Wildlife Agency, which includes documentation supporting the proposed clerical change. Clerical changes shall not require any amendment to this Agreement, the HCP/NCCP or the Permits. Clerical changes include corrections of typographical, grammatical, and similar editing errors that do not change the intended meaning. and corrections of any maps or 42 exhibits to correct insignificant errors in mapping. Annual Reports shall include a summary of clerical changes made to the HCP/NCCP during the preceding calendar year. 17.2 Changes in Boundaries of Urban Limit Line and Jurisdictional Limits of the Cities 17.2.1 General Land Use Authority of the County and Cities The Parties acknowledge that the adoption and amendment of general plans, specific plans, community plans, zoning ordinances and similar land use ordinances, and the granting of land use entitlements by the County or Cities are matters within the sole discretion of the County or Cities and shall not require amendments to this Agreement or the approval of other Parties to this Agreement. However, no such action by the County or Cities shall alter or diminish their obligations under this Agreement, the HCP/NCCP or the Permits. 17.2.2 Amending the Urban Limit Line or Jurisdictional Limits of the Cities The impact analysis in Chapter 4.0 of the HCP/NCCP and the accompanying environmental analyses pursuant to NEPA and CEQA contemplated the possible changes of the Urban Development Area due to amendments of the ULL or jurisdictional limits of the Cities. Figure 2.3 of the HCP/NCCP reflects the Initial Urban Development Area as of the date the final HCP/NCCP was published; however the Parties acknowledge that a formal amendment to the governmental boundaries that define the Urban Development Area is foreseeable within the term of this Agreement, the HCP/NCCP and the Permits. Therefore, the Conservation Strategy incorporates a more aggressive set of acquisition targets should the Urban Development Area increase, to a potential Maximum Urban Development Area described in Chapter 2.3.1 of the HCP/NCCP. In the event that the Urban Development Area is expanded consistent with the assumptions supporting the Maximum Urban Development Area provided in Chapter 2.3.1 of the HCP/NCCP, the Implementing Entity, County, Cities and Flood Control District shall be obligated to meet the acquisition targets provided in Tables 5-7 and 5-8 in accordance with the procedures for incrementally adjusting the acquisition targets that are described in Conservation Measure 1.1 in the subsection entitled "Land Acquisition under Different Urban Development Areas." All changes to the Urban Development Area and the acquisition targets shall be reported in the Annual Report. In the event that the ULL or jurisdictional limits of the Cities are expanded beyond the assumptions supporting the Maximum Urban Development Area provided in the HCP/NCCP, and the County or a City seeks Take authorization for development in the expanded areas, the Permittees shall be required to seek a Major Amendment to this Agreement, the HCPINCCP and the Permits, as further provided in this Section 17.0; provided, however, that a Major Amendment shall not be required if Permittees can demonstrate to the Wildlife Agencies' reasonable satisfaction that such modification will not result in adverse effects to Covered Species beyond that analyzed in the HCP/NCCP and the associated biological opinion. Until such amendment 43 is approved, the Take authorization provided by the Permits shall not be available for development in the expanded areas. 17.3 Fully Protected Species If at any time there is a change in state law such that CDFG may authorize the Take of any Fully Protected Species subject to California Fish and Game Code sections 3511, 4700, 4800, 5050 or 5515, and which species are also a Covered Species, the Implementing Entity may apply for an amendment of the HCP/NCCP and State Permit, or a new permit, for such species. In reviewing any such application, CDFG shall give good faith consideration to the impact analysis in the NEPA and CEQA review of the HCP/NCCP that concluded that the HCP/NCCP will incidentally and substantially benefit these species, and the Take avoidance measures, and mitigation and conservation measures, already provided in the HCP/NCCP. Provided that there are no changed circumstances or new information relevant to these species that would require supplemental review under NEPA and CEQA, and if the Take avoidance and conservation measures in the HCP/NCCP are being fully and successfully implemented, CDFG shall process the application as a minor amendment pursuant to Section l 7.6.3 of this Agreement and shall issue the amendment or new permit under the same terms and conditions as the existing State Permit,to the extent permitted by law. 17.4 Inability to Obtain Regional Wetland Permits The Parties acknowledge that certain elements of Conservation Measures 1.7, 1.19, and 2.12 were included in the HCP/NCCP to address state and federal requirements that pertain to water quality impacts to Jurisdictional Wetlands and Waters, rather than to address species, habitat, or natural community conservation needs. if the Permittees are unable to obtain regional wetland permits, authorizations or permit program assurances based on the HCP/NCCP, the Parties agree that neither the Permittees nor Third Party Participants should be required to comply with such elements of those Conservation Measures. In the eventthat the Permittees are unable to obtain regional wetland permits, authorizations, or permit program assurances that are satisfactory to the Permittees within two (2) years of the Effective Date the Parties shall, at that time or such later time as the Permittees may request, amend the HCP/NCCP and; if necessary, the Permits to remove such elements of Conservation Measures l.7, 1.10, and 2.12. No measures included in the HCP/NCCP based on their value for conserving Covered Species or achieving the HCP/NCCP's species, habitat, or natural community related conservation goals or objectives shall be removed pursuant to this Section 17.4. Following a written notice from the Permittees to the Wildlife Agencies indicating that the Permittees were unable to obtain regional wetland permits, authorizations, or permit program assurances that were satisfactory to the Permittees within two (2) years of the Effective Date, the Wildlife Agencies will, on a project-by-project basis, based on a written request and adequate supporting information from any Permittee, waive _ the requirement to implement any elements of Conservation Measures 1.7, l.l 0, and 2.12 that do not address species, habitat, or natural community conservation needs and waive the requirement to pay any portion of the wetlands mitigation fee that would be used to fund measures that 44 are unnecessary to mitigate impacts to any Covered Species and are unnecessary to achieve the conservation goals or objectives for any Covered Species. 17.5 Exceptions to the Conservation Strategy Nothing in the Adaptive Management or Changed Circumstances provisions of this Agreement or the HCP/NCCP, nor any other provision that provides for an exception for the application of any measure included in the Conservation Strategy, authorizes an increase in the amount of Take, or an increase of the impacts of Take, of Covered Species beyond that authorized by the Permits. Any modification that would result in such an increase in Take beyond that authorized by the Permits must be approved as a Major Amendment under Section 17.6.4 of this Agreement. 17.6 Amendments 17.6.1 Amendment of this Agreement This Agreement may be amended only with the written consent of all of the Parties; provided, however, that any amendment or portion thereof pertaining to Third Party Participants, the implementing ordinances, or any other provision of this Agreement pertaining to the land use decisions of the Cities or County shall not require the consent of the Flood Control District or Park District. 17.6.2 Amendment of the HCP/NCCP The HCP/NCCP may be amended only with the written consent of all of the Parties; provided, however, that any amendment or portion thereof pertaining to Third Party Participants, implementing ordinances, or any other provision of the HCP/NCCP pertaining to the Cities' or County's application of conservation measures to private urban development projects shall not require the consent of the Flood Control District or Park District. 17.6.3 Minor Amendments 17.6.3.1 Scope of Minor Amendments The Wildlife Agencies may not propose or approve as a Minor Amendment any revision to this Agreement or the HCP/NCCP if either of the Wildlife Agencies determines that such amendment would result in adverse effects on the environment that are new or significantly different from those analyzed in connection with the original HCP/NCCP, or additional Take not analyzed in connection with the original HCP/NCCP. Minor Amendments to the Agreement, the HCP/NCCP, and, as may be required by applicable . regulations, the Permits, may include the following: (a) Minor changes to survey, monitoring or reporting protocols; 45 (b) Changes to any measure(s) in the Conservation Strategy to respond to the Adaptive Management Plan or Changed Circumstances identified in Section 12.0 of this Agreement; (c) Correction of any tables or appendices in the HCP/NCCP to reflect previously approved amendments to the HCP/NCCP or the Permits; (d) Changes listed in Chapter 10.3.1 of the HCP/NCCP as examples of administrative changes, or changes substantially similar to those examples; (e) Changes listed in Chapter l 0.3.2 of the HCP/NCCP as examples of minor modifications; and (f) Other changes that do not result in adverse effects to Covered Species beyond that analyzed in the HCP/NCCP and the associated biological opinion, and do not limit the ability of the Implementing Entity to achieve the biological goals and objectives of the HCP/NCCP. 17.6.3.2 Processing Minor Amendments 17.6.3.2.1 Notice and Response of Approval or Objection Any Party may propose a Minor Amendment to this Agreement, the HCP/NCCP or the Permits by providing written notice to all other Parties. Such notice shall include the proposed Minor Amendment and a statement of the reason for the proposed amendment and an analysis of its environmental effects, if any, including any effects on Covered Activities and on Covered Species under the HCP/NCCP. Each Party shall respond in writing to the proposed amendment within sixty (60) days of receipt of such notice, indicating whether that Party approves or objects to the proposal. Only proposals that are approved by all Parties will become effective as minor amendments, although no approval may be unreasonably withheld. 17.6.3.2.2 Objection by a Wildlife Agency A Wildlife Agency may object to a proposed Minor Amendment by providing written notice to the Party proposing the amendment on the grounds that the HCP/NCCP, after giving effect to such amendment, would not meet the requirements of Section I0(a)(2)(B) of FESA or of the NCCPA. Where possible, before objecting to a proposed Minor Amendment, the Wildlife Agency shall first consult with the Implementing Entity and other Permittees and suggest reasonable conditions or alterations to the proposal which, if agreed to by the Implementing Entity and other Permittees, would permit the Wildlife Agency to approve the proposed Minor Amendment. 46 17.6.3.2.3 Objection by a Permittee Any Permittee may object to a proposed Minor Amendment upon any reasonable basis. Where possible, before objecting to a proposed Minor Amendment, the objecting Permittee shall first consult with the Wildlife Agencies and the other Permittees and suggest reasonable conditions or alterations to the proposal which, if agreed to by the Wildlife Agencies, would permit the Permittee to approve the proposed Minor Amendment. 17.6.3.2.4 Unresolved Objections If either of the Wildlife Agencies reasonably objects to a Minor Amendment proposed pursuant to this Section 17.6.3, and the objection is not resolved by any conditions or alterations pursuant to Section 17.6.3.2.2 or the Plan Implementation and Interpretation resolution process in Section 21.1, the proposed amendment must be processed as a Major Amendment of the permit in accordance with Section 17.6.4 of this Agreement. 17.6.3.2.5 Date that a Minor Amendment Becomes Effective A Minor Amendment shall become effective, if at all, on the last date on which each of the Parties has provided written approval. Written approval may be in the form of a written proposed amendment that includes a concurrence signature from all Parties. 17.6.4 Major Amendment Any change to this Agreement, the HCP/NCCP or the Permits that does not qualify as a Minor Amendment under Section 17.6.3 of this Agreement may be processed as a Major Amendment in accordance with all applicable laws and regulations, including but not limited to FESA, NEPA, NCCPA and CEQA. The Party proposing the Major Amendment shall provide a statement of the reasons and an analysis of its environmental effects, if any, including its effects on the effectiveness of the HCP/NCCP and on Covered Species. The Wildlife Agencies shall process the proposed Major Amendment in an expeditious manner, commensurate with the level of environmental review appropriate to the magnitude of the proposed Major Amendment. Any Permittee may, in its sole discretion, reject any Major Amendment proposed by the Wildlife Agencies; however, the Permittee will use reasonable efforts to explain in writing its rationale for any such rejection within thirty (30) days of communicating such rejection to the Wildlife Agencies. 47 18.0 TERM OF AGREEMENT 18.1 Effective Date This Agreement shall be effective upon execution by all Parties and issuance of the Permits. 18.2 Term of the Agreement This Agreement shall run for a term of thirty (30) years from the Effective Date, unless extended pursuant to Section 18.4 of this Agreement, or unless both Permits are permanently terminated pursuant to Section 19.0 of this Agreement, in which case this Agreement shall automatically terminate. This Agreement may also be terminated by mutual written agreement of the Parties. 18.3 Term of the Permits The Permits shall run for a term of thirty (30) years from the Effective Date unless terminated as provided in this Agreement, provided the requirements of Section 19.0 of this Agreement have been met. 18.4 Extension of the Permits Upon agreement of the Parties and in compliance with all applicable laws and regulations in force at the time, the Wildlife Agencies may, with respect to the Permits under their respective jurisdictions, extend the Permits beyond their initial terms. If the Permittees desire to extend the Permits, they will so notify the Wildlife Agencies at least six (6) months before the then-current term is scheduled to expire. Extension of the Permits constitutes extension of this Agreement and the HCP/NCCP for the same amount of time, subject to any modifications agreed to by the Parties at the time of extension. 19.0 REVOCATION, SUSPENSION OR TERMINATION BY USFWS OR CDFG 19.1 Federal Permit USFWS agrees that that it will revoke or terminate the Federal Permit, in whole or in part, pursuant to 50 Code of Federal Regulations sections 13.28-13.29 and 50 Code of Federal Regulations sections 17.22(b)(8) and 17.32(b)(8) only after completing the meet and confer process set forth in Section 21.1, unless immediate revocation is necessary to avoid the likelihood ofjeopardy to a listed species. USFWS agrees that it will not revoke or terminate the Federal Permit, in whole or in part, to avoid the likelihood of jeopardy to a listed species, without first notifying the Permittees of those measures, if any, that the Permittees may undertake to prevent jeopardy to the listed species and maintain the Federal Permit and giving Permittees a reasonable opportunity to implement such measures. 48 19.2 State Permit CDFG may revoke or terminate the State Permit for a material violation of the State Permit or material breach of this Agreement by the Permittees if the CDFG determines in writing that(a) such violation or breach cannot be effectively redressed by other remedies or enforcement action, or (b) revocation or termination is required to avoid jeopardizing the continued existence of a Covered Species and to fulfill a legal obligation of the CDFG under CESA and/or NCCPA. CDFG agrees that it will not revoke or terminate the State Permit without. first (a) requesting that the Permittees take appropriate remedial action, and (b) providing the Permittees with notice in writing of the facts or conduct which warrant the revocation or termination and a reasonable opportunity (but not less than forty-five (45) days) to demonstrate or achieve compliance with CESA, NCCPA, the State Permit and this Agreement. However, in the event that CDFG has determined that the Permittees have failed to meet the rough proportionality standard provided in Section 9.3 of this Agreement, and if the Permittees have failed to cure the default or to enter into an agreement to do so within forty-five (45) days of the written notice of such determination, CDFG shall revoke the State Permit in whole or in part in accordance with California Fish and Game Code section 2820. 19.3 Continuing Obligations In the event of revocation or termination of the Permits, or of suspension of the Permits pursuant to Section 21.0 of this Agreement, consistent with the requirements of 50 Code of Federal Regulations sections 17.32(b)(7) and 17.22(b)(7), the Permittees will remain obligated to fulfill any existing and outstanding minimization and mitigation measures required under this Agreement, the HCP/NCCP and the Permits for any Take that occurs prior to such revocation,termination, or suspension until the Wildlife Agencies determine that all Take of Covered Species that occurred under the Permits has been mitigated to the maximum extent practicable in accordance with the HCP/NCCP. Regardless of whether the Permits are terminated, suspended, or revoked, the Permittees acknowledge that lands dedicated to the Preserve System must be protected, managed and monitored in perpetuity. 20.0 WITHDRAWAL Upon ninety (90) days written notice to USFWS, CDFG, the Implementing Entity and all other Permittees, any Permittee except for the Implementing Entity may unilaterally withdraw from this Agreement. As a condition of withdrawal, the Permittee shall remain obligated to ensure implementation of all existing and outstanding minimization and mitigation measures required under this Agreement, the HCP/NCCP and the Pen-nits for rn any Take that the Permittee itself caused and any Take by Third Party Participants that 49 the Permittee authorized prior to withdrawal. If a Permittee withdraws before causing or authorizing any Take under the Permits, the Permittee shall have no obligation to ensure implementation of any minimization or mitigation measures. Such withdrawal of a Permittee from this Agreement shall be deemed to constitute a surrender of the Permittee's authorization under the Permits. Withdrawal by a Permittee shall not diminish or otherwise affect the obligations of the remaining Permittee's under this Agreement, the HCP/NCCP, or the Permits. The Permittees acknowledge that if one or more Permittees withdraws from this Agreement and, as a result of the withdrawal, it is no longer feasible or practicable to implement the HCP/NCCP successfully, it may be necessary to amend the HCP/NCCP and/or to amend the Permits in response to the withdrawal. Upon ninety (90) days written notice to USFWS and CDFG, Permittees collectively may withdraw from this Agreement. As a condition of such withdrawal, the Permittees shall be obligated to ensure implementation of all existing and outstanding minimization and mitigation measures required under this Agreement, the HCP/NCCP and the Permits for any Take that occurred prior to such withdrawal until the Wildlife Agencies determine that all Take of Covered Species that occurred under the Permits has been mitigated to the maximum extent practicable in accordance with the HCP/NCCP. Permittees shall further be obligated to ensure that the Rough Proportionality standard has been met in accordance with Section 9.3 of this Agreement and Chapter 8.6.1 of the HCP/NCCP with regard to Take that occurred prior to withdrawal. If the Permittees collectively notify the USFWS in writing that they plan to withdraw from this Agreement or to discontinue the Covered Activities, they shall surrender the Federal Permit pursuant to the requirements of 50 Code of Federal Regulations Part 13.26. Regardless of withdrawal and surrender of the Permits, the Permittees acknowledge that lands dedicated to the Preserve System must be protected, managed and monitored in perpetuity. 21.0 HCP/NCCP IMPLEMENTATION AND INTERPRETATION, REMEDIES AND ENFORCEMENT 21.1 HCP/NCCP Implementation and Interpretation The Parties recognize that disputes concerning implementation or interpretation of this Agreement, the HCP/NCCP, and the Permits may arise from time to time. The Parties agree to work together in good faith to resolve such disputes using the informal dispute resolution procedure set forth in this section or such other procedures upon which the Parties may later agree. Any Party may seek any available remedy without regard to this Section 21.1 if the Party concludes that circumstances so warrant. However, unless the Parties agree upon another dispute resolution process, or unless a Party has initiated administrative proceedings or litigation related to the subject of the dispute in federal or state court, the Parties agree to use the following procedures to attempt to resolve disputes. 50 21.1.1 Notice of Dispute; Meet and Confer If the USFWS or CDFG objects to any action or inaction by any Permittee on the basis that the action or inaction is inconsistent with the HCP/NCCP, the Permits, or this Agreement, it shall so notify the Permittee and the Implementing Entity in writing, explaining the basis of such objection. The Permittee or Implementing Entity shall respond to the notice within thirty (30) days of receiving it, stating what actions the Permittee or Implementing Entity proposes to take to resolve the objection or, alternatively; explaining why the objection is unfounded. If the response resolves the objection to the satisfaction of the objecting agency, the agency shall so notify the Permittee and the Implementing Entity, and the Permittee or Implementing Entity, as appropriate, shall implement the actions, if any, proposed in the response to the agency. If the response does not resolve the objection to the agency's satisfaction, the agency shall notify the Permittee or Implementing Entity accordingly, and the agency, the Permittee and the Implementing Entity shall meet and confer to attempt to resolve the dispute. The meeting shall occur within 30 (days) after the Permittee or Implementing Entity receives the objecting agency's response, or at such later time as the Permittee, the Implementing Entity and the agency may agree. A representative of the Implementing Entity shall take notes at the meeting, summarize the outcome, and distribute meeting notes to each Party in attendance. The Implementing Entity or any other Permittee shall use the same procedure to raise and to resolve objections to any action or inaction of the USFWS or CDFG, and the USFWS and CDFG shall respond in the same manner to notices delivered by any Permittee. If a dispute arises among the Permittees regarding the action or inaction of a Permittee, the Permittees shall use the same procedure to raise and to resolve objections to the Permittee's action or inaction, but shall not be required to provide notice to the USFWS or CDFG, and the USFWS and CDFG shall not be required to meet and confer with the Permittees. 21.1.1.1 Disputes Regarding Specific Projects If the dispute among the Parties pertains to a specific project, the proponent of the project shall be allowed to provide input into the dispute resolution process by reviewing the initial notice of objection and submitting its own response and, if applicable, by participating in the meeting referenced in Section 21.1.1 among the Permittee(s), the Implementing Entity and the USFWS and/or CDFG. For purposes of this provision, a dispute pertains to a specific project if the USFWS or CDFG objects to an action or inaction by a Permittee with regard to a specific project, such as the Permittee's determination of appropriate mitigation requirements for the project, or a Permittee objects to an action or inaction by the USFWS or CDFG with regard to a specific project. 51 21.1.1.2 Elevation of Dispute If the Parties do not resolve a dispute after completing the dispute resolution procedure in Section 21.1.1, any one of the Parties may elevate the dispute to a meeting of the chief executives of the involved Parties. For purposes of this provision, "chief executive" shall mean the city manager of a city, the county administrator of the County, the chief engineer of the Flood Control District, the general manager of the Park District, the executive director of the Implementing Entity, the CDFG Regional Manager, and the USFWS Field Supervisor. Each Party shall be represented in person by its chief executive at the meeting, and the meeting shall occur within forty-five (45) days of a request by any Party following completion of the dispute resolution procedure. 21.2 Remedies in General Except as set forth below, each Party shall have all of the remedies available in equity (including specific performance and injunctive relief) and at law to enforce the terms of this Agreement, the HCP/NCCP and the Permits, and to seek redress and compensation for any breach or violation thereof, except that none of the Parties shall be liable in damages to any other Party or to any other person or entity for any breach of this Agreement, any performance or failure to perform a mandatory or discretionary obligation imposed by this Agreement, or any other cause of action arising from this Agreement. The Parties acknowledge that the Covered Species are unique and that their loss as species would be irreparable and that therefore injunctive and temporary relief may be appropriate in certain instances involving a breach of this Agreement. Nothing in this Agreement is intended to limit the authority of the Federal and State governments to seek civil or criminal penalties or otherwise fulfill its enforcement responsibilities under FESA, CESA or other applicable law. 21.3 Federal Permit 21.3.1 Permit Suspension USFWS may suspend the Federal Permit, in whole or in part, for cause in accordance with 50 Code of Federal Regulations section 13.27 and other applicable laws and regulations in force at the time of such suspension. Except where USFWS determines that emergency action is necessary to avoid irreparable harm to a Covered Species, it will not suspend the Federal Permit without first (1) requesting the Permittees to take appropriate remedial actions, and (2) providing the Permittees with written notice of the facts or conduct which may warrant the suspension and an adequate and reasonable opportunity for the Permittees to demonstrate why suspension is not warranted. 21.3.2 Reinstatement of Suspended Permit In the event USFWS suspends the Federal Permit, in whole or in part, as soon as possible but no later than ten (10) days after such suspension, USFWS shall meet and confer with the Permittees concerning how the suspension can be ended. At the conclusion of any 52 such conference, USFWS shall identify reasonable, specific actions, if any, necessary to effectively redress the suspension. In making this determination, USFWS shall consider the requirements of FESA and its regulations, the conservation needs of the Covered Species, the terms of the Federal Permit and of this Agreement and any comments or recommendations received during the meet and confer process. As soon as possible, but not later than thirty (30) days after the conference, USFWS shall send the Permittees written notice of any available, reasonable actions, necessary to effectively redress the deficiencies giving rise to the suspension. Upon performance or completion, as appropriate, of such actions, USFWS shall immediately reinstate the Federal Permit. It is the intent of the Parties that in the event of any total or partial suspension of the Federal Permit, all Parties shall act expeditiously and cooperatively to reinstate the Federal Permit. 21.4 The State Permit 21.4.1 Permit Suspension In the event of any material violation of the State Permit or material breach of this Agreement by the Permittees, CDFG may suspend the State Permit in whole or in part; provided, however, that it shall not suspend the State Permit without first (1) attempting to resolve any disagreements regarding the implementation or interpretation of the HCP/NCCP or this Agreement in accordance with Section 21.1, (2) requesting the Permittees to take appropriate remedial actions, and (3) providing the Permittees with written notice of the facts or conduct which may warrant the suspension and an adequate and reasonable opportunity for the Permittees to demonstrate why suspension is not warranted or to take steps necessary to cure the violation or breach. 21.4.2 Rough Proportionality As provided in Section 9.2, in the event that CDFG has determined that the Permittees have failed to meet the rough proportionality standard provided in Section 9.3 of this Agreement, and if the Permittees have failed to cure the default or entered into an agreement to do so within forty-five (45) days of the written notice of such determination, CDFG shall suspend the State Permit in whole or in part in accordance with California Fish and Game Code section 2820. 21.4.3 Reinstatement of Suspended Permit In the event CDFG suspends the State Permit, as soon as possible but no later than ten (10) days after such suspension. CDFG shall confer with the Permittees concerning how the violation or breach that led to the suspension can be remedied. At the conclusion of any such conference.. CDFG shall identify reasonable specific actions necessary to effectively redress the violation or breach. In making this determination, CDFG shall consider the requirements of NCCPA, the conservation needs of the Covered Species, the terms of the State Permit and this Agreement and any comments or recommendations received during the meet and confer process. As soon as possible, but not later than 53 thirty (30) days after the conference, CDFG shall send the Permittees written notice of the reasonable actions necessary to effectively redress the violation or breach. Upon performance of such actions, CDFG shall immediately reinstate the State Permit. It is the intent of the Parties that in the event of any suspension of the State Permit, all Parties shall act expeditiously and cooperatively to reinstate the State Permit. 21.5 Circumstances Likely to Constitute Jeopardy to Species In the event of circumstances which appreciably reduce the likelihood of survival and recovery of a species in the wild, USFWS or CDFG may suspend the Permits on an emergency basis, in whole or in part, without resorting to the procedures specified above. The period of such emergency suspension shall not last longer than ninety (90) days. Prior to extending the suspension beyond ninety (90) days, the USFWS and CDFG shall comply with Section 21.3 and Section 21.4 of this Agreement. During such 90-day period, USFWS shall comply with 50 Code of Federal Regulations section 13.27. 22.0 FORCE MAJEURE In the event that the Permittees are wholly or partially prevented from performing obligations under this Agreement because of unforeseeable causes beyond the reasonable control of and without the fault or negligence of the Permittees ("Force Majeure"), including, but not limited to, acts of God, labor disputes, sudden actions of the elements not identified as Changed Circumstances, or actions of non-participating federal or state agencies or local jurisdictions, the Permittees shall be excused from whatever performance is affected by such unforeseeable cause to the extent so affected, and such failure to perform shall not be considered a material violation or breach, provided that nothing in this section shall be deemed to authorize any Party to violate FESA, CESA or NCCPA, and provided further that: • The suspension of performance is of no greater scope and no longer duration than is required by the Force Majeure; • Within fifteen (15) days after the occurrence of the Force Majeure, affected Permittees shall give the Wildlife Agencies written notice describing the particulars of the occurrence; • Permittees shall use their best efforts to remedy their inability to perform (however, this paragraph shall not require the settlement of any strike, walk-out, lock-out or other labor dispute on terms which in the sole judgment of the Permittees are contrary to their interest); and • When Permittees are able to resume performance of their obligations, the affected Permittees shall give the Wildlife Agencies written notice to that effect. 54 23.0 LEGAL AUTHORITY OF THE WILDLIFE AGENCIES 23.1 Legal Authority of USFWS USFWS enters into this Agreement pursuant to FESA, the Fish and Wildlife Coordination Act, and the Fish and Wildlife Act of 1956. Section 10(a)(2)(B) of FESA expressly authorizes USFWS to issue a Section 10(a) Permit to allow the incidental Take of animal species listed as threatened or endangered under FESA. The legislative history of Section 10(a)(1)(B) clearly indicates that Congress also contemplated that USFWS would approve a habitat conservation plan that protects non-listed species as if they were listed under FESA, and that in doing so, USFWS would provide assurances for such non- listed species. 23.2 Legal Authority of CDFG CDFG enters into this Agreement pursuant to its separate and independent authority under NCCPA. CDFG may authorize the Take of Covered Species pursuant to California Fish and Game Code section 2835. 24.0 MISCELLANEOUS PROVISIONS 24.1 Calendar Days Throughout this Agreement and the HCP/NCCP,the use of the term "day" or"days" means calendar days, unless otherwise specified. 24.2 Response Times Except as otherwise set forth herein or as statutorily required by CEQA, NEPA, CESA, FESA, NCCPA or any other laws or regulations, the Wildlife Agencies and the Permittees shall use reasonable efforts to respond to written requests from a Party within a forty-five (45) day time period. The Parties acknowledge that the Cities, the County, and the Flood Control District are subject to the Permit Streamlining Act and that nothing in this Agreement shall be construed to require them to violate that Act. In addition, the Wildlife Agencies will provide timely review of proposals for Covered Activities to be implemented directly by the Permittees, where such review is required by this Agreement, the HCP/NCCP, or the Permits. 24.2.1 Review of Third Party Participant Applications Various conservation measures in the HCP/NCCP require Third Party Participants to submit applications, plans or reports for approval by the County, a City, the Implementing Entity or the Wildlife Agencies prior to carrying out a Covered Activity. In all such circumstances, no later than sixty (60) days after receiving the application; the point of contact for the relevant Party as identified in Section 24.3 of this Agreement or his or her designee will provide either of the following in writing: (1) an approval of the 55 application, plan or report; (2) a conditional approval of the application, plan or report subject to specifically identified additional information; or (3) a denial of the application, plan or report with a written explanation of what changes can be made to receive approval if the application, plan or report is resubmitted. For situations where approval is required from two or more Parties to this Agreement, those Parties shall use reasonable efforts to provide a joint and/or consistent response within the same time period. 24.3 Notices The Implementing Entity shall maintain a list of individuals responsible for ensuring HCP/NCCP compliance for each of the Parties, along with addresses at which those individuals may be notified ("Notice List"). The Notice List as of the Effective Date is provided below. Each Party shall report any changes of names or addresses to the Implementing Entity and the other Parties in writing. Any notice permitted or required by this Agreement shall be in writing, and delivered personally, by overnight mail, or by United States mail, certified and postage prepaid, return receipt requested. Notices may be delivered by facsimile or electronic mail, provided they are also delivered by one of the means listed above. Delivery shall be to the name and address of the individual responsible for each of the Parties, as stated on the most current Notice List. Notices shall be transmitted so that they are received within deadlines specified in this Agreement, where any such deadlines are specified. Notices delivered personally shall be deemed received on the date they are delivered. Notices delivered via overnight delivery shall be deemed received on the next business day after deposit with the overnight mail delivery service. Notice delivered via certified mail, return receipt requested, shall be deemed received as of the date on the return receipt or five (5) days after deposit in the United States mail, whichever is sooner. Notices delivered via non-certified mail shall be deemed received seven (7) days after deposit in the United States mail. Notices delivered by facsimile or other electronic means shall be deemed received on the date they are received. The following Notice List contains the names and notification addresses for the individuals currently responsible for overseeing and coordinating HCP/NCCP compliance: Ms.Donna Landeros, City Manager City of Brentwood 708 Third Street Brentwood, CA 94513 Mr. Gary Napper, City Manager City of Clayton 6000 Heritage Trail Clayton, CA 94517 56 Mr. Bryan Montgomery, City Manager City of Oakley 3231 Main Street Oakley, CA 94561 Mr. Marc Grisham, City Manager City of Pittsburg 65 Civic Avenue Pittsburg, CA 94565 Mr. John Cullen, County Administrator County of Contra Costa 651 Pine Street, 11th Floor Martinez. CA 94553 Mr. Dennis M. Barry, Secretary (pending formation of the Implementing Entity) Implementing Entity 651 Pine Street,North Wing, 4th Floor Martinez, CA 94553 Mr. Maurice M. Shiu, Chief Engineer Contra Costa County Flood Control and Water Conservation District 255 Glacier Drive Martinez, CA 94553 Mr. Pat O'Brien, General Manager East Bay Regional Park District 2950 Peralta Oaks Court Oakland, CA 94605-0381 Mr. Paul Henson, Assistant Manger, Ecological Services California/Nevada Operations Office United States Fish & Wildlife Service 2800 Cottage Way, Rm. W-2606 Sacramento, CA 95825-1846 Ms. Susan Moore, Field Supervisor Sacramento Field Office United States Fish and Wildlife Service 2800 Cottage Way, W-2605 57 Mr. Sonke Mastrup Deputy Director, Resources Management and Policy Division California Department of Fish and Game 1416 91h Street, 12th Floor Sacramento, CA 95814 Regional Manager, Central Coast Region California Department of Fish and Game P.O. Box 47 Yountville, CA 94599 With a copy to: Mr. Silvano Marchesi, County Counsel Contra Costa County 651 Pine Street, 9th Floor Martinez, CA 94553 Mr. Damien Brower, City Attorney City of Brentwood 708 Third Street Brentwood, CA 94513 Mr. Dan Adams, City Attorney City of Clayton 6000 Heritage Trail Clayton, CA 94517 Mr. Sky Woodruff, City Attorney City of Oakley 3231 Main Street Oakley, CA 94561 Ms. Ruthann Ziegler, City Attorney City of Pittsburg 65 Civic Avenue Pittsburg, CA 94565 Mr. Ted Radosevich, District Counsel East Bay Regional Park District 2950 Peralta Oaks Court Oakland, CA 94605-0381 58 Ms. Ann Malcolm, General Counsel California Department of Fish and Game 1416 91h Street, 12th Floor Sacramento, CA 95814 Regional Solicitor Pacific Southwest Region U.S. Department of the Interior 2800 Cottage Way, Rm. E-1712 Sacramento, CA 95825-1890 24.4 Entire Agreement This Agreement, together with the HCP/NCCP and the Permits, constitutes the entire agreement among the Parties. This Agreement supersedes any and all other agreements, either oral or in writing, among the Parties with respect to the subject matter hereof and contains all of the covenants and agreements among them with respect to said matters, and each Party acknowledges that no representation, inducement, promise of agreement, oral or otherwise, has been made by any other Party or anyone acting on behalf of any other Party that is not embodied herein. 24.5 Defense Upon request, CDFG shall, to the extent authorized by California law, cooperate with the Permittees in defending, consistent with the terms of the HCP/NCCP, lawsuits arising out of the Permittees' adoption of this Agreement and the HCP/NCCP. 24.6 Attorneys' Fees If any action at law or equity, including any action for declaratory relief is brought to enforce or interpret the provisions of this Agreement, each Party to the litigation shall bear its own attorneys' fees and costs, provided that attorneys' fees and costs recoverable against the United States shall be governed by applicable federal law. 24.7 Elected Officials Not to Benefit No member of or delegate to, the California State Legislature, the United States Congress, the Contra Costa County Board of Supervisors, the city councils of the respective Cities, or the governing boards of the other Permittees shall be entitled to any share or part of this Agreement or to any benefit that may arise from it. 24.8 Availability of Funds Implementation of this Agreement and the HCP/NCCP by USFWS is subject to the requirements of the Anti-Deficiency Act and the availability of appropriated funds. Nothing in this Agreement will be construed by the Parties to require the obligation, 59 appropriation, or expenditure of any money from the United States Treasury. The Parties acknowledge and agree that USFWS will not be required under this Agreement to expend any federal agency's appropriated funds unless and until an authorized official of that agency affirmatively acts to commit to such expenditures as evidenced in writing. Implementation of this Agreement and the HCP/NCCP by CDFG is subject to the availability of appropriated funds. Nothing in this Agreement shall be construed by the Parties to require the obligation, appropriation, or expenditure of any'money from the Treasury of the State of California. The Parties acknowledge and agree that CDFG shall not be required under this Agreement to expend any state appropriated funds unless and until an authorized official of that agency affirmatively acts to commit such expenditure as evidenced in writing. Implementation of this Agreement and the HCP/NCCP by the Permittees is subject to the availability of their respective appropriated funds, including but not limited to the special purpose revenues dedicated to implement the HCP/NCCP. Nothing in this Agreement will be construed to require the obligation, appropriation, or expenditure of any money without express authorization by the County Board of Supervisors, appropriate City Councils and/or governing boards of the Implementing Entity, Flood Control District or Parks District. Notwithstanding these requirements and limitations, the Permittees are required to fund their respective obligations under this Agreement, the HCP/NCCP and the Permits pursuant to Section 14.1 of this Agreement. The Parties acknowledge that if the Permittees fail to provide adequate funding for their respective obligations under this Agreement, the HCP/NCCP and the Permits, the Permits may be suspended or revoked pursuant to Sections 19.0 and 21.0 of this Agreement. 24.9 Governing Law This Agreement shall be governed by and construed in accordance with the laws of the United States and the State of California, as applicable. 24.10 Duplicate Originals This Agreement may be executed in any number of duplicate originals. A complete original of this Agreement shall be maintained in the official records of each of the Parties hereto. 24.11 Relationship to the FESA, CESA, NCCPA and Other Authorities The terms of this Agreement are consistent with and shall be governed by and construed in accordance with FESA, CESA, NCCPA and other applicable state and federal laws. In particular, nothing in this Agreement is intended to limit the authority of the USFWS and CDFG to seek penalties or otherwise fulfill its responsibilities under FESA, CESA and NCCPA. Moreover. nothing in this Agreement is intended to limit or diminish the legal obligations and responsibilities of the USFWS as an agency of the federal government or CDFG as an agency of the State of California. 60 24.12 No Third Party Beneficiaries Without limiting the applicability of rights granted to the public pursuant to FESA, CESA, NCCPA or other applicable law, this Agreement shall not create any right or interest in the public, or any member thereof, as a third party beneficiary thereof, nor shall it authorize anyone not a Party to this Agreement to maintain a suit for personal injuries or property damages under the provisions of this Agreement. The duties, obligations, and responsibilities of the Parties to this Agreement with respect to third party beneficiaries shall remain as imposed under existing state and federal law. 24.13 References to Regulations Any reference in,this Agreement, the HCP/NCCP, or the Pen-nits to any regulation or rule of the Wildlife Agencies shall be deemed to be a reference to such regulation or rule in existence at the time an action is taken. 24.14 Applicable Laws All activities undertaken pursuant to this Agreement, the HCP/NCCP, or the Permits must be in compliance with all applicable local, state and federal laws and regulations. 24.15 Severability In the event one or more of the provisions contained in this Agreement is held to be invalid, illegal or unenforceable by any court of competent jurisdiction, suchportion shall be deemed severed from this Agreement and the remaining parts of this Agreement shall remain in full force and effect as though such invalid, illegal, or unenforceable portion had never been a part of this Agreement. The Permits are severable such that revocation of one does not automatically cause revocation of the other. 24.16 Due Authorization Each Party represents and warrants that (1) the execution and delivery of this Agreement has been duly authorized and approved by all requisite action, (2) no other authorization or approval, whether of governmental bodies or otherwise, will be necessary in order to enable it to enter into and comply with the terms of this Agreement, and (3) the person executing this Agreement on behalf of each Party has the authority to bind that Party. 24.17 Assignment Except as otherwise provided herein, the Parties shall not assign their rights or obligations under this Agreement, the Permits, or the HCP/NCCP to any other individual or entity. The Implementing Entity may assign its rights and obligations to a joint exercise of powers agency with powers sufficient to carry out the Implementing Entity's obligations under this Agreement, the Permits and the HCP/NCCP. Thereafter, such assignee shall be the Implementing Entity for all purposes under this Agreement. 61 24.18 Headings Headings are used in this Agreement for convenience only and do not affect or define the Agreement's terms and conditions. IN WITNESS WHEREOF,THE PARTIES HERETO have executed this Implementing Agreement to be in effect as of the date last signed below. Dated: Lc, , 20 COUNTY OF CONTRA COSTA By: Joh Cullen, County Administrator APPROVED AS TO FORM By: Dated: —. 20— CITY OF BRENTWOOD By: Donna Landeros, City Manager APPROVED AS TO FORM By: Dated: , 20 CITY OF CLAYTON By: Gary Napper, City Manager APPROVED AS TO FORM By: 62 Dated: , 20 CITY OF OAKLEY By: Bryan Montgomery, City Manager APPROVED AS TO FORM By: Dated: , 20 CITY OF PITTSBURG By: Marc Grisham, City Manager APPROVED AS TO FORM By: Dated: , 20 IMPLEMENTING ENTITY By: Dennis M. Barry, Secretary APPROVED AS TO FORM By: 63 Dated: 120 CONTRA COSTA COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT By: Maurice M. Shiu, Chief Engineer APPROVED AS TO FORM By: Dated: , 20 EAST BAY REGIONAL PARK DISTRICT By: Pat O'Brien, General Manager APPROVED AS TO FORM By: Dated: . 20— CALIFORNIA/NEVADA OPERATIONS OFFICE, UNITED STATES FISH & WILDLIFE SERVICE By: Paul Henson, Assistant Manager, Ecological Services APPROVED AS TO FORM By: 64 Dated: , 20_ SACRAMENTO FIELD OFFICE, UNITED STATES FISH & WILDLIFE SERVICE By: Susan Moore, Field Supervisor APPROVED AS TO FORM By: Dated: , 20_ CALIFORNIA DEPARTMENT OF FISH AND GAME By: Banky Curtis, Deputy Director, Habitat Conservation Division APPROVED AS TO FORM By: Dated: , 20_ CALIFORNIA DEPARTMENT OF FISH AND GAME By: Rob Floerke, Regional Manager, Central Coast Region APPROVED AS TO FORM By: 65 Exhibit A Reproduction of Figure 1-1 from the ECCC HCP/NCCP 66 8 N � •� o r,r y O N N � ► ;jp' -•* � �a+- r�+�--'��*•*�-� ,fit pff •N„s A` j. M 4 ± a. i i ' � r m i w` n Exhibit B Reproduction of Table 3-9 from the ECCC HCP/NCCP Common Name Scientific name Status' State Federal Mammals L Townsend's western big-eared bat Corynorhinus townsendii townsendii CSC — 2. San Joaquin kit fox Vulpes macrotus mutica ST FE Birds 3. Tricolored blackbird Agelaius tricolor CSC-1 — 4. Golden eagle Aquila chi-, FP BGEPA 5. Western burrowing owl Athene cunicularia hypugea CSC-1 — 6. Swainson's hawk Buteo swainsoni ST — Reptiles 7. Silvery legless lizard Anniella pulchra pulchra CSC — 8. Alameda whipsnake Masticophis lateralis eurvxanthus ST FT 9. Giant garter snake Thamnophis gigas ST FT Amphibians 10.California tiger salamander Ambystoma californiense CSC FT 11.California red-legged frog Rana aurora dravionii — FT 12.Foothill yellow-legged frog Rana boylii CSC — 13.Western pond turtle Clemmys marmorata CSC — Invertebrates 14.Longhorn fairy shrimp Brachinecta longiantenna — FE 15.Vernal pool fairy shrimp Brachinecta lvnchi — FT 16.Midvalley fairy shrimp Brachinecta mesovallensis — — 17.Vernal pool tadpole shrimp Lepidurus packardi — FE Plants CNPS 18.Mount Diablo manzanita Ar•ctostaphylos auriculata 113 — 19.Brittlescale Atr•iplex depressa 113 — 20. San Joaquin spearscale Atriplexjoanquiniana 113 — 21.Big tarplant Blepharizonia plumosa 1 B — 22.Mount Diablo fairy lantern Calochortus pulchellus IB — 23.Recurved larkspur Delphinium recurvatum 1B — 24.Round-leaved filaree Erodium macrophyllum 113 — 25.Diablo helianthella Helianthella castanea 1B — 26.Brewer's dwarf flax Hesper olinon breweri IB — 27. Showy madia Madia radiata 1B — 28.Adobe navarretia Navarr•etia nigelliformis ssp. 1B — nigellifor•mis Status: Federal FE Federally Endangered FT Federally Threatened BGEPA Bald and Golden Eagle Protection Act State 67 SE State Listed as Endangered ST State Listed as Threatened CSC California Special Concern Species CSC l Bird Species of Special Concern:First Priority FP Fully Protected CNPS IB California Native Plant Societv,Rare or Endangered in California and Elsewhere 68 Exhibit C HCP/NCCP Model Implementing Ordinance 69 December 14, 2006 A MODEL ORDINANCE OF THE [CITY OF ] [COUNTY OF CONTRA COSTA] TO IMPLEMENT THE EAST CONTRA COSTA COUNTY HABITAT CONSERVATION PLAN / NATURAL COMMUNITY CONSERVATION PLAN The [City Council of the City of ][Board of Supervisors of the County of Contra Costa] does ordain as follows: SECTION I TITLE This Ordinance shall be known as the "East Contra Costa County Habitat Conservation Plan /Natural Community Conservation Plan Implementation Policy." SECTION II FINDINGS [Note: the following findings exemplify the appropriate substance of the findings that the County and each city may make in support of this Ordinance, but the County and each city may adapt the findings as necessary to reflect its independent review of the facts.] The [Council][Board] finds as follows: A. The [City Council ("Council")][Board of Supervisors ("Board")] finds that there is a need to establish a comprehensive framework to protect and conserve species, wetlands, natural communities and ecosystems in East Contra Costa County, while improving and streamlining the environmental permitting process for impacts of future development on rare, threatened and endangered species. B. To meet the need identified in Section II-A, the [City of ("City")][County of Contra Costa ("County")] participated as a member of the East Contra Costa County Habitat Conservation Planning Agency, a joint exercise of powers agency, to develop the East Contra Costa County Habitat Conservation Plan/Natural Community Conservation Plan ("HCP/NCCP") and the Implementing Agreement for the HCP/NCCP. The [Council][Board] finds that the HCP/NCCP, implemented in accordance with the Implementing Agreement, will: provide comprehensive species, wetlands.. and ecosystem conservation and contribute to the recovery of endangered species within East Contra Costa County; balance open space, habitat, and urban development; reduce the cost and increase the clarity and consistency of federal and state permitting; consolidate and streamline these processes into one, locally controlled plan; encourage, where appropriate, multiple uses of protected areas; share the costs and benefits of the 1 December 14, 2006 HCP/NCCP as widely and equitably as possible; and protect the rights of private property owners. C. The [Council][Board] finds that adoption and implementation of this Ordinance will enable the [City][County] to promote the health, safety and welfare of all of its citizens by helping to achieve the conservation goals set forth in the HCP/NCCP, to implement the associated Implementing Agreement executed by the [City][County] on , 200_, and to preserve the ability of affected property owners to make reasonable use of their land consistent with the requirements of the National Environmental Policy Act, the California Environmental Quality Act, the Federal Endangered Species Act, the California Endangered Species Act, the California Natural Community Conservation Planning Act, and other applicable laws. D. The [Council][Board] finds that there is a reasonable relationship between the use of the HCP/NCCP implementation fees imposed by this Ordinance and the type of Development Project on which the fees are imposed. As set forth in the Implementing Agreement, the HCP/NCCP, including but not limited to Chapter 9.3.1, and data and analyses referenced therein, the HCP/NCCP implementation fee referred to in Chapter 9.3.1 as the "Development Fee" will be used to implement the HCP/NCCP by funding actions to preserve, enhance, restore, create and manage habitat in order to mitigate for impacts to open space and covered species. As set forth in the Implementing Agreement, the HCP/NCCP, including but not limited to Chapter 9.3.1, and data and analyses referenced therein, the HCP/NCCP implementation fee referred to in Chapter 9.3.1 as the "Wetland Mitigation Fee" will be used to implement the HCP/NCCP by funding actions to restore, create and manage jurisdictional wetlands and waters in order to mitigate for impacts to jurisdictional wetlands and waters and riparian areas. The HCP/NCCP implementation fees will apply only to Development Projects that impact open space, habitat suitable for one or more covered species, jurisdictional wetlands and waters or riparian areas. The HCP/NCCP implementation fees will therefore be used for purposes reasonably related to the Development Projects that will be subject to the fees. E. The[Council][Board] further finds that there is a reasonable relationship between the need for the public facilities to be funded by the HCP/NCCP implementation fees imposed by this Ordinance and the type of Development Project on which the fees are imposed. As set forth in the Implementing Agreement, the HCP/NCCP, including but not limited to Chapter 9.3.1, and data referenced therein, the HCP/NCCP implementation fee referred to in Chapter 9.3.1 as the "Development Fee" will be used to fund actions to preserve, enhance, restore, create and manage open space and habitat in order to mitigate for impacts to open space and covered species. As set forth in the Implementing Agreement, the HCP/NCCP, including but not limited to in Chapter 9.3.1, and data and analyses referenced therein, the HCP/NCCP implementation fee referred to in Chapter 9.3.1 as the "Wetland Mitigation Fee" will be used to implement the HCP/NCCP by funding actions to restore, create and manage jurisdictional wetlands and waters in order to mitigate for impacts to jurisdictional wetlands and waters. The need for such mitigation actions arises from the Development Projects to which the fees will apply, i.e., 2 December 14,2006 Development Projects that disturb open space, habitat,jurisdictional wetlands and waters or riparian areas. The HCP/NCCP implementation fees will therefore be used to establish and manage mitigation areas that are reasonably related to the mitigation needs of the Development Projects that will be subject to the fees. F. The [Council][Board] finds that there is a reasonable relationship between the amount of the HCP/NCCP implementation fees imposed by this Ordinance and the cost of the public facilities or portion of the public facilities attributable to the Development Projects on which the fees will be imposed. As set forth in the Implementing Agreement and the HCP/NCCP, including but not limited to Chapters 2, 5, 9 and Appendix G of the HCP/NCCP, the costs for mitigation of cumulative impacts from Development Projects subject to the fees were estimated by projecting the extent of future development impacts, calculating the acres of mitigation required, and estimating the overall costs of mitigation. The method for calculating the Development Fee amount for individual Development Projects reflects the mitigation cost attributable to individual Development Projects based on: a. area, as the cost of acquiring sufficient open space or habitat land to mitigate for the impacts of development is directly proportional to the acreage of the development; and b. location, as the mitigation needed varies in proportion to the intrinsic habitat or open space value of the land impacted. Thus, fees are tiered so that the highest fee amounts are imposed in areas (Development Fee Zones) deemed to have the highest intrinsic value per acre, a fee equal to 50% of the highest fee amount is imposed in areas deemed to have substantial but lower intrinsic value per acre,and a fee equal to 25%of the highest fee amount is required in areas deemed to have the lowest intrinsic value per acre. The method for calculating the Wetland Mitigation Fee amount for individual Development Projects reflects the mitigation cost attributable to individual Development Projects based on: a. type, as the cost of restoring or creating jurisdictional wetlands and waters depends on the type of jurisdictional .wetlands and waters impacted and the specific construction tasks necessary to restore or create that particular type of jurisdictional wetlands and waters, and because the different types of jurisdictional wetlands and waters require different mitigation ratios to reflect differences in habitat value and function and differences in restoration and creation success rates among the various types of jurisdictional wetlands and waters; and b. area, as the cost of restoring or creating jurisdictional wetlands and waters is directly proportional to the acreage being restored or created and thus to the acreage being impacted by the development. G. The findings set forth herein are based on the Implementing Agreement, the HCP/NCCP, and studies and data referenced therein, including data indicating the estimated cost to provide the facilities and services for which the HCP/NCCP implementation fees herein are levied, and the anticipated revenue sources, which have been available for public inspection and review in the office of the 3 December 14,2006 [City][County] Clerk for more than ten (10) days prior to the date of this public hearing. H. At least fourteen (14) days prior to the public hearing at which this ordinance was adopted, [City][County] mailed notice of the time and place of the hearing and of the availability of data indicating the estimated cost required to provide the services and amenities for which the fees established herein are levied, and the anticipated revenue sources therefore, to all interested parties who filed written requests with the [Council][Board] for mailed notice of meetings on new or increased fees or service charges. Notice of this hearing was also given by publication in accordance with section 6062(a) of the California Government Code. SECTION III APPLICATION OF ORDINANCE A. This Ordinance shall apply to all Development Projects, within the [City's][County's] land use jurisdiction that are within the Urban Development Area shown on Figure 2-3 of the HCP/NCCP, attached as Exhibit A, as it may be amended, [OPTIONAL ", except for any in-fill project with a total footprint of less than one acre or any in-fill project where new development is replacing existing development"]. This Ordinance establishes an application procedure for the applicant for such Development Projects through which the applicant may receive authorization for the incidental take of certain Covered Species listed as threatened or endangered under state and federal law and identified in the HCP/NCCP, subject to the applicant's compliance with all terms and conditions required by the HCP/NCCP,the Implementing Agreement, and this Ordinance. B. This Ordinance shall not apply if the [City][County] determines its application requirements would result in the property owner being deprived of all reasonable economic use of the property in violation of federal or state constitutional prohibitions against taking of property without just compensation. SECTION IV PROCEDURES [Note: the Ordinance must contain application procedures substantially similar to those outlined in Section 13.3 of the Implementing Agreement and further described in Chapter 6.2 of the HCP/NCCP, but such procedures may be adapted for purposes of administrative efficiency based on each city's and the County's policies and procedures.] SECTION V HCP/NCCP IMPLEMENTATION FEES OR DEDICATION OF LAND IN LIEU OF FEES To help fund the acquisition, management and monitoring of the Preserve System, and all other implementation and administration of the HCP/NCCP by the Implementing 4 December 14, 2006 Entity, the [City][County] shall condition the approval of any and all Development Projects subject to this Ordinance, pursuant to Section III above, upon the collection of the HCP/NCCP implementation fees, and/or, on a case-by-case basis, a dedication of land in lieu of some or all of the fee, as follows: [Note: the County and each city may also elect to establish through the Ordinance the amount and process for collecting additional fees to fund their costs in processing HCP/NCCP permit applications; these costs are not reflected in the calculation of the Development Fee or the Wetland Mitigation Fee.] A. Development Fee 1. The [City][County] shall determine in which of the three Development Fee Zones the project or activity is located,pursuant to Figure 9-1 in Exhibit C. 2. The Development Fee for each Development Project shall be calculated by multiplying the fee for the applicable Development Fee Zone by the number of acres that the [City Official][County Official] determines will be permanently disturbed by the Development Project, pursuant to Chapter 9.3.1. 3. As of the Effective Date, the Development Fee for each of the three Fee Zones is as follows: Zone I (Eastern Agricultural Zone) is $11,919 per acre; Zone 11 (Natural Area Zone) is $23,838 per acre; and Zone III (Infill) is $5,960 per acre, as further described in Table 9-4 of the HCP/NCCP, attached as Exhibit B. [Note: as applicable, the County and each city may also elect to set the amount of the fees by resolution and/or may incorporate the text of Exhibit B within the ordinance itself.] 4. Upon or before the issuance of a grading permit or, if no grading permit is issued, upon or before issuance of a building permit, the applicant shall either pay the entire Development Fee or, with the approval of the [County][City], shall pay at least 67% of the Development Fee and execute an agreement with the [County][City] to provide additional funding payments through assessments on the subject parcels or similar means, pursuant to the requirements of Chapter 9.3.1 of the HCP/NCCP. B. Wetland Mitigation Fee 1. For any Development Project that will fill, dredge, or remove jurisdictional wetlands and waters, riparian woodland or scrub, or stream buffers, the applicant shall pay a Wetland Mitigation Fee in addition to the Development Fee. 2. Wetland Mitigation Fees varies by wetland type. The [City Official][County Official] shall determine which of the wetland types will be affected by the Development Project, according to Table 9-5 of the HCP/NCCP, attached as Exhibit D, and according to Chapter 9.3.1 of the HCP/NCCP, and shall determine the area affected by the Development Project and the total amount of the Wetland Mitigation Fee required for the Development Project. 3. Upon or before the issuance of a grading permit or, if no grading permit is issued, upon or before issuance of a building permit, the applicant shall either pay the entire Wetland Mitigation Fee determined for the Development Project. 5 December 14, 2006 C. The Development Fee and Wetland Mitigation Fees shall each be adjusted automatically for inflation or deflation. [Note: If the ordinance is adopted after March 15, 2007, the initial fee amounts provided in the HCP/NCCP and this model ordinance must first be adjusted using the method described below.] 1. The Development Fee established by this Ordinance shall automatically be increased or decreased effective March 15 of each year as provided in Table 9-7 of the HCP/NCCP, attached as Exhibit E, and based on the formula in Exhibit F, which are further explained in Chapter 9.3.1 of the HCP/NCCP. As shown in Exhibit E and Exhibit F, one portion of the fee amount in effect before March 15 of each year shall be increased or decreased by the same percentage as the percentage of increase or decrease in the Office of Federal Housing Enterprise Oversight Annual Home Price Index for the Oakland- Fremont-Hayward, California Metropolitan Division for the preceding calendar year, and another portion of the fee shall be increased or decreased by the same percentage as the percentage of increase or decrease in the Consumer Price Index for the San Francisco-Oakland-San Jose Combined Statistical Area (U.S. Bureau of Labor Statistics) for the preceding calendar year. 2. The Wetland Mitigation Fees established by this Ordinance shall on March 15 of each year be automatically increased or decreased as provided in Table 9-7 of the HCP/NCCP, attached as Exhibit E. As shown in Exhibit E, the fee amount in effect before March 15 of each year shall be increased or decreased by the same percentage as the percentage of increase or decrease in the Consumer Price Index for the San Francisco-Oakland-San Jose Combined Statistical Area (U.S. Bureau of Labor Statistics) for the preceding calendar year. D. All fees collected hereunder shall be transmitted to the [City][County] Auditor- Controller quarterly, within thirty (30) days of the end of the quarter within which the fee was collected, for deposit into a separate account or fund, and for investment, accounting and expenditure in accordance with the provisions of this Ordinance and the Mitigation Fee Act. E. On a case-by-case basis, and upon a voluntary offer by the applicant, a dedication of land may be accepted in lieu of some or all of the Development Fee necessary for a Development Project. Upon any such offer, the [City Official][County Official] shall determine if the land dedication is consistent with the HCP/NCCP and Implementing Agreement, including Section 13.2.2.2 of the Implementing Agreement, and shall determine the amount of the Development Fee for which such dedication would substitute. F. On a case-by-case basis, and upon a voluntary offer by the applicant, restoration or creation of jurisdictional wetlands and waters or of riparian woodland and scrub may be accepted in lieu of some or all of the Wetland Mitigation Fee necessary for a Development Project. Upon any such offer, the [City Official][County Official] shall determine if the proposed restoration or creation is consistent with the HCP/NCCP and Implementing Agreement, including Chapter 9.3.1 and Conservation Measure 2.1 of the HCP/NCCP, and shall 6 December 14, 2006 determine the amount of the Wetland Mitigation Fee for which such dedication would substitute. G. On a case-by-case basis, an applicant that possesses separate and final approval from the United States Fish and Wildlife Service and/or California Department of Fish and Game for incidental take of all federally or state listed species that may be adversely affected by the project may apply to the [City][County] to pay a fee, the amount to be negotiated by the applicant with the [City][County], to support the conservation of habitat and open space under the HCP/NCCP instead of the standard HCP/NCCP implementation fees. If the mitigation and conservation requirements under the separate approval are equivalent to or exceed what would be required under this ordinance, then the [City][County] may determine that no further fees are required for purposes of complying with the HCP/NCCP, in which case the HCP/NCCP implementation fees described herein shall not be required. SECTION VI DEFINITIONS For purposes of this Ordinance, the following terms shall have the meaning set forth herein: A. "Applicant" means any individual or group that is pursuing a Development Project. B. "Development Fee" means the fee collected to fund actions to preserve, enhance, restore, create and manage habitat in order to mitigate for impacts to open space and covered species, and is further defined in Chapter 9.3.1 of the HCP/NCCP. C. "Development Fee Zones" means the areas defined in Exhibit C that are assigned different Development Fee amounts. D. "Development Project" means any project undertaken for the purpose of development, including a project involving the issuance of a permit for construction or reconstruction, but not a permit to operate, as further described in Chapter 2.3.1 of the HCP/NCCP. E. "HCP/NCCP" means the East Contra Costa County Habitat Conservation Plan/Natural Community Conservation Plan and the Federal and State Permits issued under the federal Endangered Species Act and the Natural Community Conservation Planning Act, as those documents may be amended from time to time. F. "HCP/NCCP implementation fees" means the Development Fee and the Wetland Mitigation Fee. G. "Implementing Agreement" means the Implementing Agreement for the East Contra Costa County Habitat Conservation Plan/Natural Community Conservation Plan by and between East Contra Costa County Habitat Conservation Plan Implementing Entity, Contra Costa County, City of Pittsburg, City of Clayton, City of Oakley, City of Brentwood, Contra Costa County Flood Control and Water Conservation District, East Bay Regional Park District, United States Fish and Wildlife Service, and California Department of Fish and Game. 7 December 14, 2006 H. "Implementing Entity" means the East Contra Costa County Habitat Conservancy, a joint exercise of powers agency whose members are the cities participating in the HCP/NCCP and the County, or its successor, which is responsible for overseeing the implementation of the HCP/NCCP. I. "Jurisdictional Wetlands and Waters" means State and. federally regulated wetlands and other water bodies that cannot be filled or altered without permits from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. § 1251 et seq.), from the State Water Resources Control Boards under either section 401 of the Clean Water Act or the Porter-Cologne Water Quality Act (California Water Code, § 13000 et seq.), or from CDFG under section 1602 of the California Fish and Game Code, as further explained in Chapter 1.3.5 of the HCP/NCCP. J. "Urban Development Area" means the areas designated for urban development that are either within the area described as the "Initial Urban Development Area" in Exhibit A or are within an amended Urban Development Area established according to the procedures set forth in the Implementing Agreement. K. "Wetland Mitigation Fee" means the fee collected to fund actions to restore, create and manage jurisdictional wetlands and waters and riparian woodland or scrub in order to mitigate for impacts to jurisdictional wetlands and waters, riparian woodland or scrub and stream buffers, and is further defined in Chapter 9.3.1 of the HCP/NCCP. SECTION VII EFFECTIVE DATE This Ordinance becomes effective sixty (60) days after passage, and within fifteen (15) days after passage shall be published once with the names of the [city council members][supervisors] voting for and against it in the [newspaper], a newspaper. [Note: As appropriate, the City or County may determine to publish a summary.] PASSED AND ADOPTED on 2006, by the following vote: AYES: NOES: ABSENT: ABSTAIN: ATTEST: [City][County] Clerk By: 8 December 14, 2006 Exhibit A Figure 2-3 Initial Urban Development Area 9 M CD N N a �a.._ Yn -p N (D v-a f c Q cdm o c �y otS rn< w w� mcg \ Q d c N `'�9 E V C a)-p N _V J � (n N = a) 3 d m c.�. �- (0 N a) U '� 'U > w C9 y d d O/7 C d Lp C c a7 w >.3 �0 a) �`J O in 0 j '�-' '�-' �' fn C(` d N N rL (n a(n N LL LL C To(.1 c E N N 7� m > d 0 U U a) N N C Y N O c c c C U U w rn a O > o f , m > , v a) a a' a arc U� �� �Qm ¢ Q O�Uo n mO �O� (L a3� V op 0 F1LLL= {$ a O \al 0 0 0 0 0 0 [ _1 Om N ,f `ice, J _ ♦ t t t ♦ t t t b Q a mono a L r/rte. 6 0 • tt • /,. Q � son ` wwo 0 01 o� o c • u o. o Q c ©. b. .- � . December 14, 2006 Exhibit B Table 9-4 HCP/NCCP Development Fee Table 9-4. HCP/NCCP Development Fee Fee Zone' Zone 1: Cultivated and Disturbed Zone II: Zone III: Small Lands Natural Areas Vacant Lots Total Development Fee per Acre $11,919 $23,838 $5,960 at Start of Permit Term'' Estimated Cost per Housing $2,980 $5,960 $1,490 Unit' Estimated Areas of Impact in Fee Zones (Excludes Rural Road Activities)5 Initial Urban Dev.Area 6,212 2,306 1664 8,685 Max.Urban Dev.Area 7,533 4,180 1664 11,879 Estimated Revenue(2006 Dollars)5 Initial Urban Dev.Area $67,310,127 $49,973,327 $899,347 $118,182,800 Max.Urban Dev.Area $80,027,657 $88,813,383 $881,760 $169,722,800 Notes: As defined in Figure 9-1. Fee amounts are defined solely by a project's position in Figure 9-1. Zone names are provided only as a general guide to dominant land cover. See text and Appendix H for calculation methods. Development fees will be adjusted for inflation or deflation according to Table 9-7 and the terms of the HCP/NCCP;consult planning staff with your participating jurisdiction for the latest HCP/NCCP development fee. ' Assumes average housing density of 4.0 units per acre. This is an estimate only;fees will be charged on a per acre basis,not on a per unit basis. 4 Projects less than I acre may be exempt depending on the jurisdiction. 5 Estimated acres of impact in Fee Zones and revenue projections assume a 10%contingency(i.e.,that up to 10% of the impact acres will not pay a fee due to development not occurring during the permit term). The initial fee will be set to reflect the cost and revenue projections associated with the initial urban development area as described in Appendix H. The cost and revenue projections associated with the maximum urban development area are reflected in the revenue projections for that development scenario. 10 December 14,2006 Exhibit C HCP/NCCP Figure 9-1 Development Fee Zones 11 h5•' 12 cn L6 V 1 MI El N 11111MANORi _ 1 a N 1 �Q F�• � ,4 �•� s� t e 04 LNL "Im ION IIIIIIIIIIIIIImi.7n) �..�►- a�.3'llMI NIMPOW `riles" ' 'l "Air • '_�` N LL a� Mlow a� L _T 1. J December 14, 2006 Exhibit D Table 9-5 Wetland Mitigation Fee and Acreage Determination Methods Table 9-5. Wetland Mitigation Fee and Acreage Determination Methods Required Compensation Ratio for Fee per unit of Restoration/ Land Cover Type Impact' Creation' Method for Determining Fee Boundary Riparian woodland/scrub $58,140/acre 1:] Limit of tree or shrub canopy(drip line) ...._...__...........-..—......... ._ Perennial wetlands j $79,560/acre ]:] Jurisdictional wetland boundary of state or 1 federal government'`,whichever is greater Seasonal wetland $172,380/acre 2:1 rSame as above — — Alkali wetland $163,200/acre 2:1 Same as above . —.......--- ... _............_.__. Ponds $86,700/acre 1:1 Jurisdictional waters boundary of state or federal government',whichever is greater Aquatic(open water) $86,700/acre 1:1 Wetted area during normal rainfall year or Jurisdictional waters boundary,whichever is greater Slough/channel (— $98,940/acre 1:1 ^Area of impact within banks Streams Streams 25 feet wide $474/linear foot 1:1 Stream length measured along stream or less centerline. Stream width measured between top of bank. — _ _....---..__.—_ —..... —.....__.. Streams greater than $714/linear foot 1:1 Stream length measured along stream 25 feet wide3 centerline. Stream width measured between top of bank. See Appendix G for calculation of fee by wetland type. Wetland fee takes required compensation ratio into account. Fees from Draft HCP/NCCP(in 2004 dollars)were updated for the Final HCP/NCCP using a 2005 CPI of 2.0%per Table 9-7. z Using methods for determining state and federal,jurisdictional wetlands and waters at the time of HCP/NCCP approval. 3 Impact fee for wider streams is 1.5 times the base stream fee to account for higher construction costs on wider streams. 12 December 14, 2006 Exhibit E Table 9-7 Fee Adjustment Indices Table 9-7. Fee Adjustment Indices Average Annual Rate (1991-2001) Fee Annual Adjustment Index' Example Development Fee Portion for Land Acquisition'(60% Change in the annual Home Price Index(HPI)for 5.19% initially) the Oakland-Fremont-Hayward,CA Metropolitan Division(MSAD)for the prior calendar year (Office of Federal Housing Enterprise Oversight)4 Portion for Preserve System Operation, Change in the Consumer Price Index for the San 3.25% Restoration,and Maintenance(40% Francisco-Oakland-San Jose Combined Statistical initially) Area for all urban consumers for the prior calendar year(U.S.Bureau of Labor Statistics)' Wetland Mitigation Fee Same as above 3.25% Notes: HCP/NCCP fees to be adjusted automatically by March 15 of every year based on the indices for the prior calendar year. See Appendix G of the HCP/NCCP for more details on methodology and sources. '` Direct land acquisition costs only. Excludes costs associated with land transaction,site improvements,and due diligence(e.g.,pre-acquisition surveys). 3 The portion of the Development Fee that will be adjusted according to the HPI and CPI will vary over time. For the first annual automatic adjustment,60%of the initial fees will be adjusted according to the HPI and 40%will be adjusted according to the CPI. The apportionment in subsequent years will depend on the relative values of the indices,in accordance with the formula provided in Exhibit F. 4 See htt "%wtiGw.ofbeo.gov I-1PI.asp. Data for the prior calendar year are published in March.For the first P�-� t P Y annual automatic adjustment,the change in the HPI from the end of the third quarter of 2005 through the end of fourth quarter of 2006 will be used.In all subsequent automatic adjustments,the change in the HPI for the prior calendar year will be used. The exception for the first automatic annual adjustment is needed because estimated land acquisitions costs from the Draft HCP/NCCP were adjusted for the Final HCP/NCCP by the change in the HPI during the first three quarters of 2005 because data for the fourth quarter of 2005 were not available in time. ' Consumer Price Index,All Items,with base data year of 1982-1984(i.e., 1982-1984= 100),for all urban consumers(CPI-U),not seasonally adjusted. See http://www.bls.gov/eag/eac,.ca_sanfrancisco_msa.htm 13 } December 14, 2006 Exhibit F Automatic Development Fee Increase Formula Fee,_ [[L,,_, * (HPI,_1/HPIn_2)1 + [(sn_, * (CPln_,/Cpli_2)] ] * Z Where: n=year of HCP/NCCP Implementation [year 1 (n=1) is 2006, the first calendar year in which HCP/NCCP Implementation occurs; year 2 (n =2) is 2007; etc. Year 0 (n=0) is 2005.] Fee„=Development Fee for year n (the Development Fee for year n applies from March 15 of year n through March 14 of the following year) Fee, _ $23,838 for Zone II, $11,919 for Zone 1, and $5,960 for Zone III L„_, = Land acquisition portion of development fee for the year prior to year n L, = 60%of$23,838= $14,303 HPI„_, =Home Price Index (HPI) for the Oakland-Fremont-Hayward, CA Metropolitan Division (MSAD) at the end of the calendar year prior to year n as published by the Office of Federal Housing Enterprise Oversight Sn_, =Non-land acquisition portion of development fee for the year prior to year n S, =40%of$23,838 = $9,535 CPI„_, =Consumer Price Index for the San Francisco-Oakland-San Jose Combined Statistical Area for all urban consumers at the end of the calendar year prior to year n as published by U.S. Bureau of Labor Statistics Z=Fee zone factor(based on which fee zone the project is in (see Figure 9-1 in the HCP)). The fee zone factors for the three zones are as follows: Z=1 for Zone II,the Natural Lands Zone; Z=0.5 for Zone I,the agricultural lands zone; Z=0.25 for Zone III,the infill zone The above formula applies for every fee adjustment except for the first fee adjustment to calculate the fees for Year 2. Because the Year 1 fees were calculated without access to Home Price Index data for the fourth quarter of 2005, the fee adjustment for Year 2 will rely on a different formula. The following formula will be used to calculate the fee adjustment for year 2 and will be used to calculate the fees that apply from March 15, 2007 through March 14, 2008: Fee2007_ [[$14,303 * (1­11`12006/1­11`IX)] + [($9,535 * (CPI2006/CP12005)] ] * Z Where: HPIx=Home Price Index (HPI) for the Oakland-Fremont-Hayward, CA Metropolitan Division (MSAD)through the third quarter of 2005 as published by the Office of Federal Housing Enterprise Oversight 14 Exhibit D Joint Exercise of Powers Agreement Creating the East Contra Costa County Habitat Conservancy JOINT EXERCISE OF POWERS AGREEMENT CREATING THE EAST CONTRA COSTA COUNTY HABITAT CONSERVANCY December 14,2006 EAST CONTRA COSTA COUNTY HABITAT CONSERVANCY JOINT EXERCISE OF POWERS AGREEMENT This Joint Exercise of Powers Agreement ("Agreement"), dated ("Effective Date"), is entered into by and among the County of Contra Costa, a political subdivision of the State of California (the "County"), the City of Pittsburg, a municipal corporation duly organized and existing under the laws of the State of California ("Pittsburg"), the City of Clayton, a municipal corporation duly organized and existing under the laws of the State of California ("Clayton"), the City of Oakley, a municipal corporation duly organized and existing under the laws of the State of California ("Oakley"), and the City of Brentwood, a municipal corporation duly organized and existing under the laws of the State of California ("Brentwood"). Each Party is a public agency as defined in Section 6500 of the Government Code of the State of California. The parties hereto may be referred to collectively herein as the "Parties" and individually as a"Party." RECITALS A. Article I (commencing with Section 6500) of Chapter 5 of Division 7 of Title I of the Government Code of the State of California authorizes the Parties to create a joint exercise of powers entity that has the power to exercise jointly the powers common to the Parties. B. The Parties are each empowered by law to undertake certain projects and programs. C. The Parties intend to implement the East Contra Costa County Habitat Conservation Plan and Natural Community Conservation Plan ("Conservation Plan"). The Parties expect the Conservation Plan to provide an effective framework to protect natural resources in eastern Contra Costa County, while improving and streamlining the environmental permitting process for impacts on rare and sensitive species and their habitat. The Parties expect that the Conservation Plan will also enable them to achieve certain land use planning goals and, at the same time, to provide comprehensive species, wetlands, and ecosystem conservation and to contribute to the recovery of endangered species in Northern California. D. The Parties have a common interest in creating an entity capable of implementing the Conservation Plan in accordance with the Implementing Agreement for the East Contra Costa County Habitat Conservation Plan/Natural Community Conservation Plan ("Implementing Agreement"). The Conservation Plan and Implementing Agreement identify certain duties and obligations that must be fulfilled by an "Implementing Entity" in order to support the issuance of permits to the Parties under the Federal Endangered Species Act and the California Natural Community Conservation Planning Act that cover urban development and other development projects in eastern Contra Costa County. NOW, THEREFORE, the Parties, for and in consideration of the mutual promises and agreements herein contained, do agree as follows: 1.0 DEFINITIONS Unless the context otherwise requires, the terms defined in this Section 1 shall for all purposes of this Agreement have the meanings specified herein. "Agency" means the East Contra Costa County Habitat Conservancy created by this Agreement. "Board"means the governing board of the Agency. "Conservation Plan" means the East Contra Costa County Habitat Conservation Plan and Natural Community Conservation Plan, dated October 2006. "EBRPD" means the East Bay Regional Park District, a special district duly organized and existing under the laws of the State of California. "Flood Control District" means the Contra Costa County Flood Control and Water Conservation District, a special district duly organized and existing under the laws of the State of California. "Implementing Agreement" means the "Implementing Agreement for the East Contra Costa County Habitat Conservation Plan/Natural Community Conservation Plan," dated December 14, 2006. "Implementing Entity" means the agency responsible for the implementation, oversight and policy direction of the Conservation Plan pursuant to the Implementing Agreement. "Law" means the Joint Exercise of Powers Act, Articles 1, 2, 3 and 4 of Chapter 5 of Division 7 of Title I of the Government Code of the State of California (Sections 6500-6599). "Preserve System" means the Preserve System set forth in the Conservation Plan. 2.0 PURPOSE This Agreement is made pursuant to the Law for the purposes set forth below: A. To establish an agency to fulfill the duties and obligations of the "Implementing Entity" in accordance with the Implementing Agreement and the Conservation Plan, including, but not limited to, the management and expenditure of fee revenues collected by the Parties for the purpose of implementing the Conservation Plan. B. To oversee, monitor, and report on implementation of the Conservation Plan. C. To create and manage a Preserve System in accordance with the Conservation Plan and to secure funding for those purposes. 2 D. To provide public information and outreach regarding the Conservation Plan. E. To exercise all the powers described in Section 6 herein. 3.0 TERM AND TERMINATION This Agreement shall become effective as of the Effective Date and shall continue in full force until terminated. The Agreement may be terminated by a majority of the Parties after ninety-day advance written notice thereof to the other Parties. The Agreement may be terminated immediately by a written supplemental mutual agreement of all Parties. 4.0 AGENCY A. Creation of Agency. There is hereby created pursuant to the Law an agency and public entity to be known as the "East Contra Costa County Habitat Conservancy." As provided in the Law, the Agency shall"be a public entity separate from its Parties. The debts, liabilities and obligations of the Agency shall not constitute the debts, liabilities or obligations of the Parties. Within thirty days after the effective date of this Agreement or any amendment hereto, the Agency will cause a notice of this Agreement and any amendment hereof to be prepared and filed with the office of the Secretary of State of the State of California in the manner set forth in Section 6503.5 of the Law. B. Governina Board. A five-member Board shall administer this Agreement and govern the Agency. The Board shall consist of one elected representative each from the city councils of Pittsburg, Clayton, Oakley, and Brentwood, and one elected representative from the County Board of Supervisors. Each Party's governing city council or board shall appoint that Party's representative and may also appoint one alternate representative, both of whom shall serve at the governing city council's or board's pleasure. The term of office of any Board member and any alternate shall terminate when such member or alternate is replaced by the governing city council or board that appointed the member or when such member or alternate ceases to be an elected official of the governing city council or board of the public entity represented by the member or alternate. Each Party's governing city council or board shall appoint a new representative to the Board whenever the Party's seat on the Board has for any reason become vacant. Each member of the Board shall have one vote. The Board shall make decisions relating to the governance and administration of the Agency, except with regard to matters delegated by the Board to Agency staff. Duties of the Board include, but are not limited to, annual approval of the Agency budget. Members of the Board shall not receive any compensation for serving as such, but shall be entitled to reimbursement for any expenses actually incurred in connection with serving as a member if the Board shall determine that such expense shall be reimbursed and there are unencumbered funds available for such purpose. 3 The County shall provide staff to support the activities of the Agency until such time as the Board elects to secure other staff support or the County elects to discontinue the service. The Agency shall reimburse the County for the actual direct and indirect costs of providing staff support according to an annual budget approved by the Board. Each such annual budget shall include a spending cap beyond which the Agency shall not be required to reimburse the County. C. Meetings of Board. (1) Regular Meetings. The Board shall hold a regular meeting at least twice each year at dates and times the Board determines, and, by resolution, may provide for the holding of regular meetings at more frequent intervals. If the Chair determines that there will be no business to transact at any meeting or that a scheduling conflict exists, such meeting may be canceled or rescheduled. The hour and place at which each such regular meeting shall be held shall be fixed by resolution of the Board. (2) Legal Notice. All meetings of the Board shall be called, noticed, held and conducted subject to the provisions of the Ralph M. Brown Act(Chapter 9 of Part I of Division 2 of Title 5 of the Government Code of the State of California (Sections 54950-54961)) or any successor legislation hereinafter enacted. (3) Minutes. The Secretary of the Agency shall cause minutes of all meetings of the Board to be kept and shall, as soon as possible after each meeting, cause a copy of the minutes to be forwarded to each member of the Board and to each Party. (4) Quorum. A majority of the members of the Board shall constitute a quorum for the transaction of business, except that less than a quorum may adjourn meetings from time to time. D. Officers: Duties: Bonding. (1) The Board shall select from its members a Chair who shall serve as Chair of the Agency and a Vice Chair who shall serve as Vice Chair of the Agency. The Chair and the Vice Chair shall have the duties assigned by the Board or set forth in by-laws adopted by the Board. (2) The Secretary of the Agency shall be the County Community Development Director until such time as the Board may appoint a replacement. The Secretary or his or her designee shall keep the records of the Agency, shall act as Secretary at the meetings of the Agency and record all votes, and shall keep a record of the proceedings of the Agency in a journal of proceedings to be kept for such purpose, and shall perform all duties incident to the office. (3) The Treasurer of the Agency shall be the County Treasurer until such time as the Board may appoint a replacement. Subject to the applicable provisions of any indenture or resolution providing for a trustee or other fiscal agent, the Treasurer is designated as 4 the depository of the Agency to have custody of all the money of the Agency, from whatever source, and, as such, shall have the powers, duties and responsibilities specified in Section 6505.5 of the Law. (4) The Auditor Controller for the County shall be the Controller of the Agency until such time as the Board may appoint a replacement. The Controller shall have the powers, duties and responsibilities specified in Section 6505.5 of the Law. The Controller shall draw checks to pay demands against the Agency when the Board has approved the demands. (5) The Agency shall reimburse the County for its actual direct and indirect costs of providing the services of the Secretary, Treasurer, and Controller, as applicable, according to an annual budget approved by the Board. Each such annual budget shall include a spending to beyond which the Agency shall not be required to reimburse the County. (6) The Treasurer and Controller of the Agency are designated as the public officers or persons who have charge of, handle, or have access to any property of the Agency, and each such officer shall file an official bond in the amount each such officer determines is necessary as required by Section 6505.1 of the Law, provided, that such bond shall not be required if the Agency does not possess or own property or funds with an aggregate value of greater than $1,500.00. (7) The Treasurer and Controller of the Agency are hereby authorized and directed to prepare or cause to be prepared: (a) a special audit as required pursuant to Section 6505 of the Law every year during the term of this Agreement; and (b) a report in writing on the first day of February, May, August and November of each year to the Board and the Parties, which report shall describe the amount of money held by the Treasurer and Controller of the Agency, the amount of receipts since the last such report, and the amount paid out since the last such report. (8) The Board shall have the power to appoint such other officers and employees as it may deem necessary and to retain independent counsel, consultants and accountants. 5.0 COMMITTEES A. Habitat and Regional Parks Partnership Liaison Committee. The Agency shall establish a Habitat and Regional Parks Partnership Liaison Committee consisting of up to three Agency representatives and up to three representatives of the EBRPD to promote coordination with EBRPD. The Board shall appoint Agency representatives to the Liaison Committee; EBRPD may appoint its representatives. Liaison Committee representatives may be elected officials or may be staff of the Agency or EBRPD. The Habitat and Regional Parks Partnership Liaison Committee shall make recommendations to the Board regarding ways to coordinate implementation of the Conservation Plan with EBRPD's activities in the Conservation Plan area and regarding the preparation and submittal of grant applications in conjunction with EBRPD. 5 B. Flood Control and Water Conservation Committee. The Agency shall establish a Flood Control and Water Conservation Committee consisting of up to three Agency representatives and up to three representatives of the Flood Control District to promote coordination with the Flood Control District. The Board shall appoint Agency representatives to the Committee; the Flood Control District may appoint its representatives. Committee representatives may be elected officials or may be staff of the Agency or the Flood Control District. The Flood Control and Water Conservation Committee shall make recommendations to the Board regarding ways to coordinate implementation of the Conservation Plan with the Flood Control District's activities in the Conservation Plan area. C. Public Advisory Committee. The Agency shall establish a Public Advisory Committee to advise the Agency regarding various aspects of Conservation Plan implementation, including, but not limited to (1) expenditure of funds for Conservation Plan implementation, (2) general permitting procedures for projects covered by the Conservation Plan, (3) management of the Preserve System, and (4) adherence to Conservation Plan requirements. The Public Advisory Committee shall make recommendations to the Board regarding creation and management of the Preserve System and make other recommendations consistent with the Conservation Plan. Members of the Public Advisory Committee shall be appointed by the Board based on relevant expertise or ability to represent interested or affected segments of the public in accordance with guidelines to be established by the Board and consistent with Section 8.2.6 of the Conservation Plan. D. Legal Notice. All meetings of committees shall be called, noticed, held and conducted subject to the provisions of the Ralph M. Brown Act(Chapter 9 of Part I of Division 2 of Title 5 of the Government Code of the State of California (Sections 54950-54961)) or any successor legislation hereinafter enacted. E. Other Advisory Committees. The Board may establish other advisory committees as contemplated in the Conservation Plan or as the Board otherwise deems appropriate to advise the Agency on matters related to this Agreement, the Conservation Plan or the Implementing Agreement, provided that the Board shall specify the purpose and function of any such committees. 6.0 POWERS The Agency shall have all of the powers granted to joint powers authorities in Articles 2 and 4 of the Law. Additionally, the Agency is authorized, in its own name, to do all acts necessary for the exercise of said powers for said purposes, including but not limited to any or all of the following: to make and enter into contracts; to employ agents and employees; to receive, collect, and disburse funds; to receive grants, contributions and donations of property, funds, and services; to sue and be sued in its own name including, without limitation, to file or intervene in lawsuits that pertain to the implementation of the Conservation Plan; to acquire real property and improvements thereon by any lawful means other than eminent domain; to sell and to lease real 6 and personal property; and to buy and hire real and personal property. Except as otherwise provided herein, such power shall be exercised subject only to such restrictions upon the manner of exercising such power as are imposed upon the County in the exercise of similar powers, as provided in Section 6509 of the Law. Notwithstanding the foregoing, the Agency shall have any additional powers conferred under the Law, insofar as such additional powers may be necessary to accomplish the purposes set forth in Section 2 hereof. 7.0 TERMINATION OF POWERS The Agency shall continue to exercise the powers herein conferred upon it until the termination of this Agreement. 8.0 DISBURSEMENTS AND DEPOSITS OF FEES The Implementing Agreement requires Pittsburg, Clayton, Oakley, Brentwood (collectively the "Cities") and the County to consider the adoption of various mitigation fees, including a "Development Fee" and a "Wetland Mitigation Fee" (collectively "Fees") to raise funding for the purposes outlined in the Implementing Agreement. To the extent the County and the Cities impose such Fees and collect any revenue from such Fees, County and Cities shall disburse to the Agency any and all such revenues semi- annually, on or about December 31 and June 30. The Agency shall hold revenues from the Development Fee in one separate, interest-bearing account, and the Agency shall hold revenues from the Wetland Mitigation Fee in a second separate, interest-bearing account, pursuant to the requirements of the Mitigation Fee Act (Gov. Code, § 66000 et seq.) ("the Act") until disbursement or expenditure in accordance with this Agreement. 9.0 USE OF FEE REVENUES The Agency shall use any and all revenues from the Fees only for the purposes for which they were imposed, and for no other purpose, pursuant to the requirements of the Act. 10.0 ACCOUNTABILITY The Agency is strictly accountable for all revenue from the Fees that is disbursed to the Agency and must report all receipts and disbursements. No later than October 31 of each year of this Agreement, the Agency, County and Cities shall prepare and furnish to each other an annual report of their respective collection, disbursement and expenditures of, and any interest earned on, revenue from the Fees. The Agency shall, on behalf of the Parties, be solely responsible for full compliance with all applicable requirements of the Act as they pertain to revenue from the Fees that have been disbursed to the Agency, including but limited to requirements with respect to its expenditure, management and accounting. 7 11.0 FISCAL YEAR Unless and until changed by resolution of the Board, the fiscal year of the Agency shall be the period from July l of each year to and including the following June 30, except for the first fiscal year which shall be the period from the date of this Agreement to the following June 30. 12.0 SURPLUS MONEY After the completion of the purpose of this Agreement, any surplus money on hand shall be returned to the Parties in proportion to their contributions. 13.0 DISPOSITION OF ASSETS AND REAL PROPERTY Upon the termination of this Agreement as set forth in Section 7, and after the repayment of advances and contributions in accordance with Section 14, any assets acquired as the result of the joint exercise of powers under this Agreement, other than real property and funding for the restoration or management of real property, shall be distributed to the Parties in proportion to each Member's overall unreimbursed contribution of assets to the Agency. The Agency shall transfer any real property, and any funding for the restoration or management of real property, acquired by the Agency as the result of the joint exercise of powers under this Agreement to one or more public agencies or nonprofit conservation organizations in accordance with applicable law. 14.0 CONTRIBUTIONS AND ADVANCES With the Board's approval, any Party may contribute or advance public funds, personnel, equipment or property to the Agency for any of the purposes of this Agreement. Any such advance shall be made subject to repayment, and shall be repaid in the manner agreed upon by the Agency and the Party making the advance at the time of making such advance. In addition, each Party shall contribute funds to the Agency as follows to cover any and all costs of the Agency arising from any claim, liability, cause of action or lawsuit, whether or not initiated by the Agency, including.. but not limited to, attorneys' fees, court costs, and amounts owed pursuant to any judgment or settlement agreement (collectively "litigation costs"): County 33%, Pittsburg 29%, Clayton 5%, Oakley 13%, Brentwood 20%.. The litigation cost allocations for the cities are intended to reflect their relative population sizes. The County's allocation does not reflect the population of the unincorporated portion of the Conservation Plan area and is intended to be fixed at 33%. The Agency may update the litigation cost allocations for the cities from time to time to respond to changes in their relative population sizes as reported by the California Department of Finance; however, the County's litigation cost allocation shall remain 33%. The Parties' contributions for litigation costs shall be reduced or reimbursed, as the case may be, to the extent that Agency litigation costs are funded or reimbursed through insurance coverage, settlement agreements, amounts awarded in judgment, or other sources. 8 Except with regard to litigation costs or as otherwise expressly provided in this Agreement, no Party has any obligation to make advances or contributions to the Agency to provide for the costs and expenses of administration of the Agency, even though any Party may choose to do so. 15.0 ACCOUNTS AND REPORTS The Agency shall establish and maintain such funds and accounts as may be required by good accounting practice. The books and records of the Agency shall be open to inspection at all reasonable times by the Parties and their representatives. The Agency shall give an audited written report of all financial activities for each fiscal year to the Parties within six months after the close of each fiscal year. To the extent required by Section 6505.6 of the Law, the Controller of the Agency shall contract with a certified public accountant or public accountant to make an annual audit of the accounts and records of the Agency in compliance with Section 6505.6 of the Law. In each case the minimum requirements of the audit shall be those prescribed by the State Controller for special districts under Section 26909 of the Government Code of the State of California and shall conform to generally accepted auditing standards. When such an audit of an account and records is made by a certified public accountant or public accountant, a report thereof shall be filed as public records with the Parties and, if required by Section 6505.6 of the Law, with the Auditor Controller of the County. Such report shall be filed within twelve months of the end of the fiscal year or years under examination. Any costs of the audit, including contracts with, or employment of, certified public accountants or public accountants, in making an audit pursuant to this Section shall be borne by the Agency and shall be a charge against any unencumbered funds of the Agency available for the purpose. In any year the Agency may, by unanimous request of the Board, replace the annual special audit with an audit covering alwo-yearperiod. 16.0 CONFLICT OF INTEREST CODE The Agency shall adopt a conflict of interest code as required by law. 17.0 LIABILITY AND INDEMNIFICATION Each Party shall defend, hold harmless and indemnify the other Parties and their officers, agents, and employees against any and all claims, demands, damages, costs, expenses or liability arising out of, or in connection with, any acts performed under this Agreement to the extent liability arises from the acts of the indemnitor, its officers, agents, or employees in the performance of this Agreement. 9 18.0 BREACH If a Party shall default in any covenant contained in this Agreement, such default shall not excuse any other Party from fulfilling its respective obligations under this Agreement and the Parties shall continue to be liable for the performance of all conditions herein contained. Each Party shall be entitled to seek any and all legal and equitable remedies against any other Party in response to any alleged default under this Agreement. Each and all of the remedies given to the Parties hereunder or by any law now or hereafter enacted are cumulative and the exercise of one right or remedy shall not impair the right of the Parties to any or all other remedies. 19.0 SEVERABILITY Should any part, term, or provision of this Agreement be decided 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. 20.0 SUCCESSORS; ASSIGNMENT This Agreement shall be binding upon and shall inure to the benefit of the successors of the Parties. No Party may assign any right or obligation hereunder without the consent of the other Parties. 21.0 AMENDMENT OF AGREEMENT This Agreement may be amended only by supplemental written agreement executed by all of the Parties at any time. 22.0 FORM OF APPROVALS Whenever an approval is required in this Agreement, unless the context specifies otherwise, it shall be given, in the case of the County, by resolution duly and regularly adopted by the members of the Board of Supervisors; in the case of the City of Pittsburg, the City of Brentwood, the City of Oakley, and the City of Clayton, by resolution duly and regularly adopted by the members of the city's city council; and, in the case of the Agency, by resolution duly and regularly adopted by the Board. Whenever in this Agreement any consent or approval is required,the same shall not be unreasonably withheld. 23.0 NOTICES Notices to the Parties shall be sufficient if delivered as follows: Mr. John Cullen, County Administrator Contra Costa County 651 Pine Street, 11th Floor Martinez. CA 94553 10 Ms. Donna Landeros, City Manager City of Brentwood 708 Third Street Brentwood, CA 94513 Mr. Gary Napper, City Manager City of Clayton 6000 Heritage Trail Clayton, CA 94517 Mr. Bryan Montgomery, City Manager City of Oakley 3231 Main Street Oakley, CA 94561 Mr. Marc Grisham, City Manager City of Pittsburg 65 Civic Avenue Pittsburg, CA 94565 With a copy to: Mr. Silvano Marchesi, County Counsel Contra Costa County 651 Pine Street, 9th Floor Martinez, CA 94553 Mr. Damien Brower, City Attorney City of Brentwood 708 Third Street Brentwood, CA 94513 Mr. Dan Adams, City Attorney City of Clayton 6000 Heritage Trail Clayton, CA 94517 Mr. Sky Woodruff, City Attorney City of Oakley 3231 Main Street Oakley, CA 94561 11 Ms. Ruthann Ziegler, City Attorney City of Pittsburg 65 Civic Avenue Pittsburg, CA 94565 24.0 SECTION HEADINGS All section headings contained herein are for convenience of reference only and are not intended to define or limit the scope of any provision of this Agreement. 25.0 COUNTERPARTS This Agreement may be executed in counterparts and so executed shall constitute an Agreement which shall be binding upon all Parties. A photocopy of the fully executed Agreement shall have the same force and effect as the original. 26.0 SIGNATURES By affixing his/her signature below, each of the persons signing this Agreement warrants and represents that he/she has read and understands the Agreement, that he/she is authorized to sign this Agreement, and that the Party on behalf of whom he/she signs agrees to be bound by its terms. Dated: , 2011 COUNTY OF CONTRA COSTA By: V'-q"4vV Y John Cullen, County Administrator APPROVED AS TO FORM: Silvano B. Marchesi, County Counsel By: Linda Wilcox Deputy County Counsel 12 Dated: , 20_ CITY OF BRENTWOOD By: Donna Landeros, City Manager APPROVED AS TO FORM: City Attorney By: Dated: , 20 CITY OF CLAYTON By: Gary Napper, City Manager APPROVED AS TO FORM City Attorney By: Dated: . 20— CITY OF OAKLEY By: Bryan Montgomery, City Manager APPROVED AS TO FORM City Attorney By: 13 J Dated: 20 CITY OF PITTSBURG By: Marc Grisham, City Manager APPROVED AS TO FORM City Attorney By: 14 REQUEST TO SPEAK FORM(3 Minute Limit) I wish to sneak on Agenda Item#: Complete this form and place it in the upright box near the Date: speaker's podium,and wait to be called by the Chair. My comments will be 0 General Personal information is optional. This speaker's card will be incorporated into the public record of this meeting. For Name: 2") W/.,// 2,� Against _— — ❑ I wish to speak on the subject of: Address: City: Phone: �'J I am speaking for: ❑ Myself Organization: ❑ I do not want to speak but would like to �. l/, /Ljv n1r� / C-3 leave comments for the Board to consider (use the back of this form) REQUEST TO SPEAK FORM(3 Minute Limit) *I wish to speak on Agenda Item#:� Complete this form and place it in the upright box near the Date: j2.1 191 b 6 speaker's podium,and wait to be called by the Chair. ❑ Personal it formation is optional. This speaker's card will be My comments will be: General incorporated into the public record of this meeting. . For Name: 6,16,, Va."-AW.". El Against ❑ 1 wish to speak on the subject of: Address: w W" s4` 1ST City: GQ q�cS7 O t Phone: ��� 2y�'V I am speaking for: ❑ Myself E` Organization: ❑ I do not want to speak but would like to "�'"•'- 1 leave comments for the Board to consider (use the back of this form) REQUEST TO SPEAK FORM(3 Minute Limit) _I wish to speak on Agenda Item#: I� Complete this form and place it in the upright box near the Date: speaker's podium,and wait to be called by the Chair. My comments will be: ❑ General Personal it formation is optional. This speaker's card will be incorporated into the public record of this meeting. 29 For n /< ❑ Against Name:: heK�,... �,�S e v� ❑ I wish to speak on the subject of. Address: City: Phone: 91 G Ll i(.I (7 S 1 am speaking for: ❑ Myself f� Organization: U. ❑ I do not want to speak but would like to (r,,�M �,�e Ser✓;u. leave connne'nts for the Board to consider (use the back of this farm) REQUEST TO SPEAK FORM (3 Minute Limit) I wish to speak on Agenda Item #: ' Complete.this form and place it in the upright box near the Date: L �` speaker's podium, and wait to be called by the Chair. My comments will be: ❑ General Personal it formation is optional. This speaker's card will be ,�/ incorporated into the public record of this meeting. IJP For N �&L1,V � EJ Against Name: ❑ I wish to speak on the subject of: Address: City: Phone: I am speaking for: ❑ Myself � rr Organization: L1, �- �'_ ❑ I do not want to speak but would like to leave comments for the Board to consider (use the back of this form) California Native Plant Society-East Bay • Contra Costa Council Friends of Marsh Creek Watershed • Greenbelt Alliance Home Builders Association of Northern California Institute for Ecological Health • Legacy Land Strategies Muir Heritage Land Trust • Save Mount Diablo December 18, 2006 Mr. Bob Taylor, Mayor Ben Johnson, Mayor City of Brentwood City of Pittsburg 708 Third Street 65 Civic Avenue Brentwood, CA 94513 Pittsubrg, CA 94565 Mr. Bill Walcutt, Mayor Mr. John Gioia, Chair City of Clayton Contra Costa County Board of Supervisors City Hall 11780 San Pablo Ave, Ste D 6000 Heritage Trail El Cerrito, CA 94530 Clayton, CA 94517 Ms. Carol Severin, President Brad Nix, Mayor Board of Directors City of Oakley East Bay Regional Park District 3231 Main Street 2950 Peralta Oaks Court Oakley, CA 94561 P.O. Box 5381 Oakland, CA 94605 Re: Final East Contra Costa County Habitat Conservation Plan/Natural Community Conservation Plan (HCP/NCCP) Dear Messrs and Madam, Our respective organizations have participated in the development of the HCP/NCCP over the last several years in a variety of ways: as members of the HCPA Coordination Group, by commenting on the Draft HCP/NCCP, and by participating in the various meetings and public discussions that have occurred during the five years of planning that preceded the Final HCP/NCCP. We have appreciated the open and iterative planning process employed by the HCPA, and welcomed the opportunity to help shape the document over the years. Though none of the undersigned organizations would claim satisfaction with all aspects of the Final HCP/NCCP, we recognize that it was necessary in some instances to balance competing interests. Further, we believe the Final HCP/NCCP goes beyond striking a compromise and, as further described below,offers tangible benefits for the environment, economic development, private property holders, and the public at large. December 15, 2006 Page 2 of 3 Consequently, we respectfully urge the approval of the Final East Contra Costa County Habitat Conservation Plan /Natural Community Conservation Plan. We believe the HCP/NCCP will benefit the diverse interests represented in this letter by helping to achieve the following key goals described in the supporting materials to the Plan: • Purchase, restore, and permanently protect large interconnected and biologically rich blocks of habitat; • Redirect money away from the process of permitting and toward the conservation of resources. • Improve regulatory certainty and permitting efficiency for regulators and project proponents; • Provide fair compensation to willing landowners for permanent protection of resources on their land; In addition, we wish to emphasize the following attributes of the HCP/NCCP important to one or more of the undersigned: • Having an approved HCP/NCCP will enable local agencies in east Contra Costa County to receive state and federal conservation funds that would otherwise pass them by. For example, the U.S. Department of the Interior issues HCP Land Acquisition Grants each year, and the East Contra Costa County HCP/NCCP has already been awarded a $6.5 million grant from this source. • Funding and fee allocations in the HCP/NCCP were based on the principle that future development should pay a share of the costs proportional to its share of impacts. • The HCP/NCCP uses economic incentives to conserve resources on private lands. • The HCP/NCCP will enable local control of species permitting, will provide "no surprises" assurances from the state and federal governments, and will bring a regional context to the question of what resources should protected. • The HCP/NCCP will help to ensure that species and habitats are preserved in a coordinated manner that facilitates preservation of habitat connectivity and wildlife corridors, that enables thorough and effective biological monitoring and adaptive management, and that targets the most rare and sensitive resources for acquisition and restoration. • The Plan respects the needs of agriculture by avoiding substantial land acquisition and crop restriction requirements in the intensively cultivated areas of eastern Contra Costa County and by proposing to rely on a grazing as a key habitat management tool. • The HCP/NCCP will provide permits for needed public infrastructure projects, including new and expanded roads and highways and flood control facilities. Thank you for your consideration of these comments. We hope you will consider approving the HCP/NCCP and we look forward to working with you further on its successful implementation. December 15, 2006 Page 3 of 3 Sincerely, Elaine Jackson, President California Native Plant Society John Hopkins, President Institute for Ecological Health Linda Best, Executive Director David Dolter, Principal Contra Costa Council Legacy Land Strategies, Inc. C -�6� C 2�.j 4� Anne Littlejohn, Director Linus Eukel, Acting Executive Director Friends of Marsh Creek Watershed Muir Heritage Land Trust ;t"z 6� Christina Wong, East Bay Field Rep. Ronald Brown, Executive Director Greenbelt Alliance Save Mount Diablo Jim Gwerder Paul Campos, Vice Pres. & General Counsel Private property owner representative Home Builders Assoc. of Northern Calif. Copy to: Mr. Paul Henson, United States Fish and Wildlife Service Ms. Susan Moore, United States Fish and Wildlife Service Mr. Sonke Mastrup, California Department of Fish and Game Mr. Rob Floerke, California Department of Fish and Game REQUEST TO SPEAK FORM (3 Minute Limit) I wish to speak on Agenda Item #: n .A Complete this form and place it in the upright box near the Date: speaker's podium, and wait to be called by the Chair. My comments will be: ❑ General Personal information is optional. This speaker's card will be incorporated into the public record of this meeting. V9 For ❑ Against Name: S ¢ w ❑ I wish to speak on the subject of: Address: City: Phone: LL L( I am speaking for: ❑ Myself 9 Organization: U. S , �,.s �. � ❑ Ido not want to speak but would like to 1 �, �a , �� S e f✓ u_ leave comments for the Board to consider (use the back of this form) REQUEST TO SPEAK FORM (3 Minute Limit) I wish to speak on Agenda Item #: D Complete this form and place it in the upright box near the Date: 12,1-t 91 06 speaker's podium,'and wait to be called by the Chair. My comments will be: ❑ General Personal information is optional. This speaker's card will be incorporated into the public record of this meeting. For ❑ Against Name: �-���. Vsmekfoo-s ❑ I wish to speak on the subject of: Address: JIBS W1,1/ow (,J)csv s4, 1S'? City: 'Conc.&A , c,4 Phone: 41 ZY) 2-w> /fig I am speaking for: ❑ Myself ®` Organization:. G 6 rove. C e s u ❑ I do not want to speak but would like to Gl leave comments for the Board to consider (use the back of this form) REQUEST TO SPEAK FORM (3 Minute Limit) I wish to speak on Agenda Item #: Complete this form and place it in the upright box near the Date: 14 i d speaker's podium, and wait to be called by the Chair. My comments will be: ❑ General Personal information is optional. This speaker's card will be incorporated into the public record of this meeting. For . - / EJ Against Name: d� � ///"��� !/ El wish to speak on the subject of: Address: �� /�-G V�� � � City: - e Phone: 4 3' S4 I am speaking for: ❑ Myself f Organization: ❑ I do not want to speak but would like to Salle, leave comments for the Board to consider (use the back of this form) REQUEST TO SPEAK FORM (3 Minute Limit) I wish to speak on Agenda Item #: ' Complete this form and place it in the upright box near the Date: speaker's podium, and wait to be called by the Chair. My comments will be: ❑ General Personal information is optional. This speaker's card will be / incorporated into the public record of this meeting. Ltd For Name: ,I�'2 I l�V t C v" ❑ Against ❑ I wish to speak on the subject of: Address: City: Phone: I am speaking for: ❑ Myself f Organization: ,6aim�' ❑ I do not want to speak but would like to leave comments for the Board to consider (use the back of this form)