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CITY COUNCIL AGENDA ITEM NO. 16  

Meeting Date:     March 28, 2000

 Subject/Title:      City Participation in Eastern Contra Costa County Regional Habitat Conservation Plan

 Submitted by:     Mitch Oshinsky AICP, Community Development Director

                           Winston Rhodes AICP, Associate Planner

 Approved by:      Jon Elam, City Manager

 RECOMMENDATION

1)       Adopt the attached resolution declaring the City’s interest in cooperatively developing a Habitat Conservation Plan (“HCP”) with other government jurisdictions in East Contra Costa County, and outlining the City’s expectations with respect to the Habitat Conservation Planning process

 2)       Authorize the City Manager to sign an interagency agreement forming the East Contra Costa County Habitat Conservation Plan Association (“HCPA”) to manage preparation of the HCP. Recognize that the City Council retains the discretion to approve or disapprove any draft HCP.

 PREVIOUS ACTION

On November 10, 1998, the City Council directed staff to work with other East County jurisdictions and State and federal agencies to create a HCP.

 BACKGROUND

The U.S. Fish and Wildlife Service (USFWS) and the California Department of Fish and Game (CDFG) have expressed an interest in working with East County jurisdictions to develop and implement a HCP in order to address regional endangered species issues by establishing a streamlined review process to obtain required federal and state permits. This process would replace the time-consuming case-by-case approach, which is currently utilized to review private, and public development projects that involve protected species and related mitigation issues. An HCP could provide project proponents with much greater certainty about how to proceed with development proposals in areas, which currently provide habitat for protected species.

 Preparation of the HCP and participating in the HCPA would impose no direct costs on the City.  All HCP direct costs, including the hiring of consultants, the management of the HCPA  and the public involvement process, would be paid by others. Currently, committed funds make up approximately 70 percent of the necessary project funds and federal agencies have said additional grant funding will be available once the HCP process is formally underway.  The City would incur some indirect costs associated with participating in the HCPA, such as attending meetings.  

The City’s participation in the HCP formulation does not obligate the City to adopt the HCP after its preparation or provide any future funding without the Council’s authorization.  The HCP preparation process will include opportunities for public input and opportunities for periodic Council review and oversight.  In addition, participation in most HCPs is voluntary and does not prevent developers and others from addressing regulations on their own as they have in the past. 

Additional background information is provided in the attached Interagency Report.

 Attachments:

Interagency Staff Report

Draft HCP Preparation Resolution

RESOLUTION NO.___ 

 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD TO PARTICIPATE IN THE PREPARATION OF AN EAST CONTRA COSTA COUNTY HABITAT CONSERVATION PLAN

  WHEREAS, the City of Brentwood acknowledges the benefits of participating in a planning process to prepare a multi-species Habitat Conservation Plan for Eastern Contra Costa County; and

 WHEREAS, the City is aware of the inherent complexities and challenges associated with preparing a multi-jurisdictional regulatory document, such as a Habitat Conservation Plan ; and

 WHEREAS, it is the expectation of the City that a draft Habitat Conservation Plan, ready for review and consideration by the participating agencies, will be completed within no more than eighteen months of the date the attached agreement (Exhibit A) is approved by all participating agencies, and

 WHEREAS, it is also the expectation of the City that the cost of the preparation of the Habitat Conservation Plan will not exceed $715,000 as described in Section 13 of the attached agreement; and

 WHEREAS, it is the understanding of the City that a Memorandum of Agreement shall be mutually agreed upon and adopted between the participating agencies and the California Department of Fish and Game, and the U.S. Department of Fish and Wildlife Service, within six months of the approval of the attached agreement. This Agreement shall assure the processing of all permits relating to the Sate and Federal endangered Species Acts in an expeditious and timely manner, prior to the formal adoption of the Habitat Conservation Plan 

WHEREAS, the approval of the attached agreement to prepare a Habitat Conservation Plan by the City of Brentwood in no way obligates the City to adopt or endorse the completed Habitat Conservation Plan which will require a separate discretionary action by the City Council. 

NOW, THEREFORE BE IT RESOLVED that the City agrees to cooperatively participate in the preparation of Eastern Contra Costa County Habitat Conservation Plan  with the City of Antioch, the City of Clayton, the City of Pittsburg , Contra Costa County, the Contra Costa Water District, and the East Bay Regional Park District,  and authorizes the City Manager to execute the attached document .           

PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting held on March 28, 2000 by the following vote:

East Contra Costa County Habitat Conservation Plan Association (HCPA)

Agreement for the Preparation of a Habitat Conservation Plan/Natural Communities Conservation Plan and Providing for Public Agency Cost Sharing

This Agreement is entered into this ____ day of _______, 2000 by and among the Cities of Antioch, Brentwood, Clayton, and Pittsburg, Contra Costa County, the Contra Costa Water District, and the East Bay Regional Park District.  These seven agencies are collectively referred to as the “member agencies.”

 PURPOSE:

The purpose of this Agreement is to establish the East Contra Costa County Habitat Conservation Plan Association (“HCPA”), pursuant to the Joint Exercise of Powers Law, Government Code sections 6500 through 6599.1 (“the Law”), to manage and fund the development of a Habitat Conservation Plan (HCP), Natural Communities Conservation Plan (NCCP), and/or similar plan for protecting natural resources and securing regulatory permits in East Contra Costa County.  A separate agreement shall be necessary to describe the terms for implementing any plan developed by the HCPA and approved by member agencies.

Summary of acronyms and abbreviations:

 Acronyms and abbreviations used in this Agreement are defined in the text when first used. For clarity, a list of acronyms and explanations is also provided below.

 CDFG:  California Department of Fish and Game

CEQA:  California Environmental Quality Act

CESA: California Endangered Species Act

EGC:          Executive Governing Committee (committee of elected officials which oversees the HCPA)

FESA: Federal Endangered Species Act

HCP:          Habitat Conservation Plan (relates to FESA)

HCPA:  East Contra Costa County Habitat Conservation Plan Association

NCCP:  Natural Communities Conservation Plan (relates to CESA)

NEPA:  National Environmental Policy Act

RWQCB:     California Regional Water Quality Control Board

USACE:      United States Army Corps of Engineers

USEPA:      United States Environmental Protection Agency

USFWS:     United States Fish and Wildlife Service

Law:            Government Code sections 6500-6599.1, unless otherwise specified

RECITALS:

A.   The member cities and County are managing growth within their jurisdictions according to their respective General Plans and policies, and by this agreement wish to cooperate in the development of an HCP/NCCP and/or similar Plan for protecting natural resources and securing regulatory permits in East Contra Costa County.

 B.   Some future growth and some infrastructure maintenance activities within the jurisdictions and potential future annexation areas of member agencies may have the potential to adversely affect endangered species and their habitat, and could result in unauthorized harm or “take”of endangered species which is prohibited under the California Endangered Species Act (CESA) [Fish and Game Code section 2050 et seq.; “take” is defined in Fish and Game Code section 86] and Federal Endangered Species Acts (FESA) [16 U.S.C. '1531 et seq; “take” is defined in section 3(19) [16 U.S.C. section 1532(19)] of FESA].

 C.   The California and Federal Endangered Species Acts provide mechanisms to allow for the lawful “take”of endangered species under specified circumstances when it is incidental to otherwise lawful activities.  The mechanism for receiving an incidental take permit under section 10 of the Federal Endangered Species Act is known as a Habitat Conservation Plan (HCP).  An equivalent mechanism under state law for non-agricultural activities is a Natural Communities Conservation Plan (NCCP) which may be prepared pursuant to the Natural Communities Conservation Planning Act [Fish and Game Code '2800 et seq.].  However, it is also possible to receive an incidental take permit under CESA without preparing an NCCP by submitting an application for a regional permit under the provisions of section 2081 of CESA, though the planning requirements of the two approaches are likely to be very similar[Fish and Game Code '2081 et seq.].  HCPs for upland species and most fish are submitted to the United States Fish and Wildlife Service (USFWS) for approval and incidental take permit issuance under FESA.  NCCPs and section 2081 permit applications are submitted to the California Department of Fish and Game (CDFG) for approval.  HCPs and NCCPs are implemented via an Implementation Agreement describing how funds will be managed and spent and which entity or entities will be responsible for implementing various aspects of the HCP/NCCP.

 D.   Cities, counties, and other local government agencies may, with the approval of regulatory agencies with jurisdiction, develop a regional HCP/NCCP to provide an incidental take permit for multiple species over a relatively large area.  Such plans typically extend permit coverage to individual projects in exchange for a defined mitigation fee or some other conservation action.  Mitigation fee funds are pooled and used to protect habitat.

 E.   Regional HCPs/NCCPs and other similar natural resource protection and permitting plans allow local jurisdictions to identify significant resource issues in advance, streamline permitting for projects, improve interagency coordination, and provide regulatory certainty and predictability in planning for future urban growth and development.

 F.   Regional HCPs/NCCPs make possible improved protection of biological resources by incorporating regional-level analysis and mitigation to protect ecological processes, an approach to conservation which may be more effective than the more common practice of separately addressing single species in small areas.  Mitigation actions may be coordinated to achieve multiple objectives, such as: improving habitat connectivity; providing the local community with valuable open space; protecting important agricultural resources; and maximizing the use of limited funds.

 G.   Other environmental regulations and regulatory agencies may be included in the regional conservation planning process to receive additional regional permits.  Regulations related to wetlands impacts are among those which can be addressed concurrently with endangered species concerns.  Agencies involved in regulating wetlands in the East Contra Costa County area include, USFWS, CDFG, the United States Army Corps of Engineers (USACE), the United States Environmental Protection Agency (USEPA), the California Regional Water Quality Control Board (RWQCB), and the Bay Conservation and Development Commission (BCDC).

 H.   The Contra Costa Water District will be prevented from using its full contractual allotment of federal water from the Sacramento-San Joaquin Delta unless it can address service area impacts to upland endangered species by means such as a HCP/NCCP.

I.    The East Bay Regional Park District owns substantial areas of open space and habitat in the East Contra Costa County area and has an interest in coordinated planning for open space, parks, and wildlife habitat.

 J.    The State Route 4 Bypass Authority is required to mitigate impacts to endangered species associated with construction of its Segment 2, Phase 1 Project, as well as subsequent segments and phases of the Bypass.  USACE, in consultation with USFWS, has issued a permit which requires the Bypass Authority to provide funds to support the preparation of an HCP/NCCP for east Contra Costa County. The Bypass Authority receives the major part of its funding from the East Contra Costa Regional Fee and Financing Authority.  East Contra Costa Regional Fee and Financing Authority funds are generated by developer fees in the cities of Antioch, Brentwood, Oakley, and Pittsburg and in unincorporated areas of eastern Contra Costa County.

K.   The member agencies acknowledge that the recently incorporated City of Oakley, once it has an opportunity to consider this matter, may have an interest in participating in the development of an HCP/NCCP.  In general, the member agencies anticipate no objection to including the City of Oakley in the HCPA, should such inclusion be proposed

Agreement

NOW, THEREFORE, the member agencies agree to the following terms and provisions:

 1.   Recitals.  The recitals contained herein are an integral part of this Agreement.

 2.   Association Formed.  The member agencies hereby form the East Contra Costa County Habitat Conservation Plan Association (HCPA).  As provided in the Law, the HCPA shall be a public entity separate from the member agencies.  The debts, liabilities and obligations of the HCPA shall not constitute debts, liabilities or obligations of the member agencies except as specifically provided herein.

 Pursuant to section 6509 of the Law, the powers of the HCPA under this Agreement shall be exercised in the manner provided by law and, except as expressly set forth in this Agreement, shall be subject to the restrictions on such powers applicable to  the County of Contra Costa.  Notwithstanding the foregoing, the HCPA shall have any additional powers conferred under the Law, insofar as such additional powers may be necessary to accomplish the purposes set forth in paragraph 3 hereof, and shall continue to exercise the powers herein conferred upon it until the termination of this Agreement.

 Within 30 days after the effective date of this Agreement or any amendment hereto, the HCPA will cause a notice of this Agreement to be prepared and filed with the office of the Secretary of State of the State of California as required in section 6503.5 of the Law.

3.   HCPA Objective.  The objective of the HCPA is to manage and fund the development of a Habitat Conservation Plan (HCP)/Natural Communities Conservation Plan (NCCP) for submission to the governing boards of member agencies and ultimately to the U.S. Fish and Wildlife Service (USFWS) and the California Department of Fish and Game (CDFG).  Once approved by the USFWS and the CDFG, the HCP/NCCP will establish a funding mechanism to preserve and enhance native habitats which support endangered and sensitive species, while also providing local land use planning agencies with a regional incidental take permit under the Federal Endangered Species Act (FESA) and the California Endangered Species Act (CESA).  The HCPA will also consider including additional environmental regulations in the planning process to enable streamlined permitting and review not only for endangered species regulations, but possibly also for various wetlands regulations, the California Environmental Quality Act, and other laws related to natural resource protection.

 4.   Planning Area. The HCPA planning area will generally include the area of east Contra Costa County shown on Exhibit A.  This shall be the jurisdiction of the HCPA for purposes of its Conflict of Interest Code.  The boundaries of the planning area are generally defined by the Alameda-Contra Costa county line, the western edges of the watersheds for Kellogg, Marsh, Kirker, and other east-flowing creeks, Suisun Bay, the San Joaquin River, and the course of the most western Delta sloughs between Oakley and the Alameda-Contra Costa County line near Clifton Court Forebay .  The planning area boundary lies west of the Marsh Creek and Kirker Creek watersheds in the vicinity of the City of Clayton, following a section line to include the eastern portions of that city.  The planning area boundary also departs very slightly from the watershed line in the vicinity of the Concord Naval Weapons Station to avoid small areas of the City of Concord, which lie on the east side of the ridge.  The approximate size of the HCPA planning area is 185,000 acres. 

The HCPA shall consider expanding the HCPA planning area in the future to include all or portions of the sphere of influence of the City of Clayton, should during development of the HCP/NCCP the City of Clayton make such request of the HCPA.  The HCPA shall also consider developing the HCP/NCCP to accept mitigation fee funds from areas outside of the HCPA Planning Area and not covered by the permits to be issued in conjunction with the HCP/NCCP. 

Should any member agency with land use planning authority withdraw from participation in the HCPA, the planning area boundary shall be modified to exclude areas over which the withdrawing agency has exclusive land use planning authority.  Areas subject to cooperative land use planning by more than one agency, such as areas outside a city limits but within a city sphere of influence, shall remain within the HCPA planning area unless all agencies with land use planning jurisdiction in that area withdraw from the HCPA.

             Development of an HCP/NCCP can be greatly simplified if habitats which border channels of the Sacramento-San Joaquin Delta (Delta) are not included in the permitting process.  Permitting for impacts to such shoreline habitats would require consideration of the complicated endangered species and habitat issues in the Delta.  Member agencies therefore anticipate excluding Delta habitats from the permitting process.

 5.   Decision-making.   An Executive Governing Committee (EGC) comprised of elected representatives from each member agency shall provide oversight of and direction to the HCPA.  Each member agency will have one elected representative and one elected alternate from their governing board or council on the EGC.  The EGC will elect a Chair and Vice-Chair.  All decisions will be made according to the voting procedures set forth in paragraph 6, except as otherwise specified in this paragraph or in paragraphs 15, 18, or 20. The EGC may act directly or through a subcommittee established by a majority vote.  The meetings of the EGC shall be open to the public, noticed, and conducted in accordance with the Brown Act, Government Code section 54950 et seq.  The EGC shall appoint a secretary, who shall cause a written record of all meetings to be kept and shall, as soon as possible after each meeting, cause a copy of the written record to be forwarded to each member agency for distribution to its representatives.

      Staff representatives from each member agency shall coordinate and manage the HCPA planning process under the direction of the EGC.  The Contra Costa County Community Development Department shall take the lead role in this regard and shall serve as the Coordinating Agency for the HCPA.  The EGC shall receive advice on the planning process from one or more advisory committees formed under a Public Outreach and Involvement Program.

 6.   Voting Procedures.  When necessary, a vote shall be taken according to the provisions of this paragraph.  A majority of the voting member-representatives on the EGC shall constitute a quorum for the transaction of business, except that less than a quorum may adjourn meetings from time to time.  A majority vote of a quorum of voting member-representatives on the EGC is required to render a decision when votes are taken.  All voting shall be conducted in public, except where otherwise authorized by law.  All other voting procedures may be formulated in the Administrative Procedures adopted by the EGC (see subparagraph 7k).

 The member agencies’ representatives on the ECG with land use planning authority, i.e., the Cities of Antioch, Brentwood, Clayton, and Pittsburg and Contra Costa County, shall have decision-making authority and one vote each on all matters to be resolved by the HCPA.  The Contra Costa Water District shall have decision-making authority and its elected representative shall have one vote on administrative matters, but shall not have decision-making authority or a vote on land use policy matters.  Administrative matters on which the Contra Costa Water District may vote include, but are not limited to, the selection of consultants, the expenditure of HCPA funds, the management of HCPA liability, and the management of the Public Outreach and Involvement Process described in paragraph 11.  The Contra Costa Water District may also vote on matters directly related to its operations, authority, and legal responsibilities, including matters that could impact its Central Valley Project contract.  Land use policy matters on which the Contra Costa Water District may not vote include, but are not limited to, the designation of impact fees, mitigation measures, habitat acquisition areas, and permit coverage areas.  Should a dispute arise as to whether the Contra Costa Water District may vote on a matter before the HCPA, the EGC members representing agencies  with land use planning authority shall resolve the dispute by a vote, a simple majority being necessary to prevent a vote by the Contra Costa Water District.  The East Bay Regional Park District shall be able to provide input on all decisions, but shall have no decision-making authority or voting ability.  The State Route 4 Bypass Authority shall have no decision-making role in the HCPA.

 The member agencies acknowledge that the recently incorporated City of Oakley, once it has an opportunity to consider this matter, may have an interest in participating in the development of an HCP/NCCP.  In general, the member agencies anticipate no objection to including the City of Oakley in the HCPA, should such inclusion be proposed. If the City of Oakley were to join the HCPA, member agencies anticipate that it would have decision-making and voting ability equivalent to that of the other land use planning agencies.

 7.   Duties of the Executive Governing Committee. The duties of the EGC shall include the following:

 a)         The EGC shall govern and operate the HCPA.

b)         The EGC shall provide policy direction in the preparation of the East Contra Costa County HCP/NCCP and related documents.

c)         The EGC shall approve a budget for developing the HCP/NCCP submitted by member agency staff, and shall ratify all checks, warrants, and related documents used in the expenditure of HCPA funds since the previous meeting.

d)         The EGC shall approve the retention of agents and consultants, and execution of any agreements and contracts with regulatory agencies and other outside parties necessary to develop the HCP/NCCP.

e)         The EGC shall oversee compliance with the California Environmental Quality Act (CEQA), the National Environmental Policy Act (NEPA), and other laws applicable to the development of an HCP/NCCP.  EGC oversight of compliance with CEQA shall include oversight of the HCPA as the lead agency under CEQA for the development of the HCP/NCCP.

f)          The EGC shall consider approval of the HCP/NCCP, the Implementation Agreement for the completed HCP/NCCP, and related documents before such documents are submitted to the individual member agencies with land use planning authority for final approval.

g)         In the event that one or more individual land use planning agencies does not approve the final HCP, the EGC shall determine whether to modify the HCP and make a second attempt at approval by all land use planning agencies, or to modify the HCP so that it applies only to the land use planning agencies which approved it originally.

h)         The EGC shall adopt a conflict of interest code for the HCPA.

i)          The EGC shall perform other decision-making functions for the HCPA as provided by this Agreement or as are necessary for developing an HCP/NCCP.

j)          The EGC shall meet approximately every three months.

k)         The EGC may adopt bylaws, rules for conduct of the meetings, and other administrative procedures as needed.  The administrative procedures of a member agency may be adopted for the HCPA by the EGC.

l)          The EGC shall manage any claims and litigation brought against the HCPA or its member agencies.

 8.   Coordinating Agency. The Contra Costa County Community Development Department shall serve as the Coordinating Agency for the HCPA.  The Coordinating Agency shall assist the EGC and the other member agency staff by supervising and coordinating the daily operations of the HCPA.  The HCPA shall reimburse reasonable costs incurred by the Contra Costa County Community Development Department in serving as the Coordinating Agency, including costs associated with the services of other Contra Costa County departments and other outside agents that assist the Contra Costa County Community Development as it performs these duties. The Contra Costa County Community Development Department shall not request nor receive reimbursement for other costs associated with participation in the HCPA, such as costs to represent the interests of Contra Costa County at meetings.  Specific duties of the Coordinating Agency shall include:

 a)         Noticing meetings;

b)         Preparing or supervising the preparation of meeting materials;

c)         Serving as a point of contact for the public;

d)         Serving as a point of contact for federal, state, and regional regulatory agencies and coordinating interaction with these agencies;

e)         Supervising the daily operations of consultants;

f)          Approving consultant invoices for payment within 60 days after receipt of a complete invoice and forwarding such invoices to the EGC for subsequent ratifications;

g)         Coordinating the implementation of the Public Outreach and Involvement Program;

h)         Submitting itemized invoices to member agency staff documenting the costs incurred in performing the duties of Coordinating Agency. 

9.   Duties of member agency staff. Staff representatives of member agencies, with staff of the Coordinating Agency taking the lead role, shall have primary administrative responsibility for the implementation of this Agreement.  Specific duties of member agency staff shall include the following:

 a)         Serve as the staff of the EGC except as provided otherwise in this Agreement;

b)         Negotiate a Memorandum of Agreement with the federal and State resource agencies responsible for endangered species regulation for final approval by the EGC;

c)         Prepare a Request for Proposals for preparation of the HCP/NCCP and any other related documents for final approval by the EGC, solicit proposals, review proposals, recommend a consultant and negotiate an agreement with the selected consultant for final approval by the EGC;

d)         Prepare and update a budget for developing the HCP/NCCP and any other related documents for approval by the EGC, manage the consultant contract, monitor progress towards the HCPA objective and compliance with any deadlines, apply for and receive grants as authorized by the EGC, review invoices submitted by the Coordinating Agency and the Treasurer and Controller and recommend EGC ratification of such invoices to assure payment within 60 days after receipt of a complete invoice, provide direction to consultants, and present the draft HCP/NCCP document to the EGC for initiation of the approval process.

e)         Develop and implement a public outreach and involvement program with oversight from the EGC and nominate participants in any standing advisory committees for approval by the EGC.

f)          Develop the Implementation Agreement for the completed HCP/NCCP for approval by the EGC.

g)         Provide periodic updates on the development of the HCP/NCCP to the governing boards and councils of member agencies, as directed by the EGC.

h)         Prepare a proposed Conflict of Interest Code for adoption by the EGC. 

10.  HCPA Treasurer and Controller.  The Director of the Contra Costa County Community Development Department shall serve as the Treasurer and Controller for the HCPA and, as such, shall have the powers, duties, and responsibilities specified in section 6505.5 of the Law.  The HCPA Treasurer and Controller shall appoint such other officers and employees as it may deem necessary to perform said powers, duties, and responsibilities, subject to the approval of the EGC based on a recommendation by the member agency staff, and may retain independent counsel, consultants and accountants.  Each public officer or person who has charge of, handles, or has access to any property of the HCPA, shall file an official bond in the amount of $25,000 as required by section 6505.1 of the Law; provided that such bond shall not be required if the HCPA does not possess or own property or funds with an aggregate value of greater than $500.00.  The HCPA Treasurer and Controller shall be the depository of and have custody of all funds collected under this Agreement.  The HCPA Treasurer and Controller shall deposit all funds collected under this Agreement with the Treasurer of Contra Costa County.  The HCPA shall reimburse administrative costs incurred by the Contra Costa County Community Development Department in serving as the HCPA Treasurer and Controller, including costs associated with the services of other Contra Costa County departments, including the County Auditor, and other outside agents that assist the Contra Costa County Community Development as it performs these duties. The HCPA Treasurer and Controller, with the assistance of the County Auditor and Treasurer, as deemed necessary by the HCPA Treasurer and Controller, shall:

 a)         Receive contributions from members agencies, and grants, contributions, and donations of property, funds, services and other forms of assistance from any source, and provide receipts in exchange therefor, and be responsible for the safekeeping and proper disbursement thereof.

b)         Establish and maintain such funds and accounts as may be required by good accounting practices, and provide a report in writing on a quarterly basis to the EGC, and the member agencies, which report shall describe the amount of money held by the Treasurer and Controller, the amount of receipts since the last such report, and the amount paid out since the last such report;

c)         Provide strict accountability of all funds received and disbursed by the HCPA, as required by Government Code section 6505, and keep the books and records of the HCPA open to inspection at all reasonable times by member agencies and their representatives;

d)         Pay, by check signed by not less than two individuals with signatory authority approved by the EGC, all obligations of the HCPA when due and as recommended for payment by member agency staff, including the costs of the audit required by subparagraph f, including retention or employment of certified public accountants or public accountants;

e)         Invest, pursuant to section 6505.5 of the Law, any money that is not required for the immediate necessities of the HCPA, in any instrument, declared by state law, including but not limited to Government Code section 53601, to be permissible as an investment for any local public agency in the State of California, and as the Treasurer and Controller determines is advisable in accordance with established policies and procedures, or deposited in such bank or banks as the EGC may designate for that purpose, with all interest to be credited in proportion to the contributions described in paragraph 14;

f)          Make, or if required by section 6505.6 of the Law, contract with a certified public accountant or public accountant to make, an annual audit of the accounts and records of the HCPA as required by section 6505 of the Law every year during the term of this Agreement, which audit shall be conducted in accordance with generally accepted auditing standards and with the minimum requirements prescribed by the State Controller for special districts under Government Code section 26909 of the State of California, and, if required by sections 6505.6 of the Law, provide a report on said audit to the member agencies, which shall be filed as public records with each of the member agencies, including the County Auditor/Controller of the County of Contra Costa within 12 months of the end of the fiscal year or years under examination.  Unless and until changed by the EGC, the fiscal year of the HCPA shall be the period from July 1 each year to and including the following June 30, except for the first fiscal year which shall begin on the date this Agreement becomes effective and continue through the following June 30.

g)         Submit itemized invoices to member agency staff documenting the costs incurred in performing the duties of HCPA Treasurer and Controller.

 11.  Public Outreach and Involvement Program.  The HCPA shall conduct a Public Outreach and Involvement Program to provide a structured process for disseminating information and collecting input on the development of the HCP/NCCP.  The Public Outreach and Involvement Program shall include public workshops/hearings and one or more standing advisory committees with clearly defined membership and operating procedures.  Member agency staff shall propose members of the advisory committees and the EGC shall approve members and operating procedures.  The advisory committees to be formed by the HCPA may include a Policy Advisory Group, a Technical Advisory Group, and a Financial Advisory Group.  Advisory groups formed by the HCPA shall provide recommendations to the EGC and to member agency staff on topics related to development of the HCP/NCCP.  Member agency staff and the Coordinating Agency shall support and manage the advisory group process to assure that it is effective, responsive, and efficient.

 12.  Anticipated Schedule. The HCPA will comply with the following schedule (as it may be revised in writing by member agencies) to develop the HCP/NCCP:

 Fall 2000           Hire consultant and initiate Public Outreach and Involvement Program.

             Spring 2001       Prepare the Administrative Draft HCP/NCCP.

 Fall 2001           Circulate the Draft HCP/NCCP and Draft CEQA documents. 

Winter 2001       Land use planning agencies consider adopting Final HCP/NCCP, approving the Implementation Agreement, and completing the CEQA process.

Fall 2002           Regulatory agencies approve final HCP/NCCP and Implementation Agreement, complete National Environmental Policy Act (NEPA) process, and issue regional incidental take permit and/or other regional permits.

13. Cost to Prepare the HCP/NCCP.  The estimated cost to prepare the East Contra Costa County HCP/NCCP is $650,000.  This estimated cost, and an additional ten percent reserve fund of $65,000 for contingencies, shall be divided among the member agencies and other funding sources according to the cost allocations set forth in paragraph 14 of this Agreement. The cost estimate includes the anticipated costs for consultants, for the Coordinating Agency and the Treasurer and Controller, and for compliance with CEQA and NEPA.  The costs of including wetlands permitting in the planning process will need to be determined by the HCPA and considered if and when the HCPA approves such work.  To the extent that planning for wetlands permits can be compatible with planning for endangered species, including wetlands permits should have a minor cost.  Except for the anticipated costs of the Coordinating Agency and the Treasurer and Controller, as defined under paragraphs 8 and 10 of this Agreement, the cost estimate provided in this paragraph does not include the member agency staff time that will be necessary to attend meetings and otherwise assist with the development of the HCP/NCCP.  Such staff costs shall be considered in-kind contributions and not funded through this Agreement.

 14.  Allocation of Costs.  The chart below shows how the estimated costs to develop the HCP/NCCP will be allocated, lists the funding contributions required of member agencies and expected from other sources, and identifies the amount of additional funds needed.  In addition to the estimated project cost of $650,000, the HCPA shall also secure funding for a ten percent contingency reserve of $65,000.  CCWD shall contribute one-half or $32,500 of the contingency reserve, in addition to its contributions described in the chart below.

 

 Funding Source

Funding Amount

 

Percentage

of Estimated Project

Cost

 

City of Clayton

 

 

CCWD

State Route 4 Bypass                   Authority*

 

 

$10,000

           

 

$325,000

$100,000          

 

1.5%

 

 

50%

15.4%

 

 

Committed Project Funds 

Additional Project Funds Needed

 From Other Sources

 

$435,000

 

$215,000

 

67%

 

33%

 

Estimated Project Cost

 

$650,000

 

100%

 

           *            The funding contribution of the State Route 4 Bypass Authority shall be made on behalf of the Cities  Antioch, Brentwood, and Pittsburg and Contra Costa County.

 15.  Payment of Costs.  Contributing member agencies shall  deposit the amount specified in the preceding paragraph with the HCPA Treasurer and Controller. One-half of each member agency’s deposit is due upon its execution of this Agreement.  The remaining one-half of the deposit will be due on July 1, 2001.  Contributions to the contingency reserve shall be due from CCWD upon notice from the Treasurer and Controller that project funds are depleted and HCPA costs remain.  The funding contributions of the State Route 4 Bypass Authority shall be provided on behalf of Contra Costa County and the Cities of Antioch, Brentwood, and Pittsburg.  The amount of funding being paid by the State Route 4 Bypass Authority shall not change if one or more agencies on whose behalf the funds are contributed withdraws from the HCPA.  Should the City of Oakley join the HCPA, member agencies anticipate that no additional funding contribution would be required as a portion of the funds already committed to HCPA by the State Route 4 Bypass Authority would be considered as the contribution of the City of Oakley.  Subject to the provisions of paragraph 18, member agency funding contributions in excess of those described in paragraph 14 shall require an amendment to this Agreement.  Funds remaining after termination of this Agreement shall be refunded in proportion to the amount contributed by each member agency within six months of the termination date.

 16.  Outside Funding Sources.  The HCPA intends to raise additional funds by seeking grants and other contributions from public and private sources.  The amount of additional funds needed to pay the estimated project cost of $650,000 is $215,000, but $32,500 more is needed to fund one-half of the contingency reserve. The HCPA shall attempt to obtain additional funds in excess of this amount to provide a reserve and potentially reduce member agency’s costs.  There are a number of potential outside funding sources to support the development of the HCP/NCCP, including the following primary examples:

 a)         Federal funds for conservation planning which are passed through to state government and the CDFG for disbursement in accordance with section 6 of FESA.

 b)         Conservation planning funds which may be appropriated by the California Legislature to support development of NCCPs.

 c)         Grant programs administered by USEPA, including the State, Local, Tribal Wetlands Grant Program which supports planning for wetlands conservation.

 d)         Grants from the National Fish and Wildlife Foundation and many other private organizations.

Outside funding sources may be pursued after local governments have reached agreement to develop an HCP/NCCP, and perhaps after work on the project has commenced.  Including wetlands permitting in the planning process would expand the range of available funding sources.

 17.  Strategy for addressing funding shortfalls.  The EGC shall determine whether or not to initiate development of the HCP/NCCP prior to the procurement of the outside funds needed to pay the estimated project cost of $650,000.  If the EGC does elect to begin the planning process before all needed funds are raised, the EGC shall develop a strategy for reducing the scope of the HCP/NCCP project in the event that outside funds are not secured.  The purpose of the contingency strategy will be to define options for producing a useful product with less than the estimated full funding.  The HCPA shall not enter into binding agreements or contracts requiring payment of funds in excess of HCPA assets at the time the agreement or contract is being considered.

 18.  Liability, contribution, and indemnity. Under section 895.2 of the Government Code, each of the member agencies are jointly and severally liable upon any liability which is imposed upon the HCPA or upon any of the entities for injury caused by negligent or wrongful act or omission occurring in the performance of this Agreement.  Pursuant to sections 895.4 and 895.6 of the Government Code, each member agency (except the East Bay Regional Park District and the City of Clayton which shall have no liability, except for liability that arises from the gross willful misconduct of its own Directors officers, employees and agents) agrees to bear one-fifth of such liability.  Each member agency except the East Bay Regional Park District and the City of Clayton shall be entitled to receive contribution from and required to contribute to the other member agencies to the extent described above.  No member agency shall be responsible for any liability in excess of the portions described above except as follows: the Cities of Antioch, Brentwood, Clayton, and Pittsburg, Contra Costa County, Contra Costa Water District, and the East Bay Regional Park District shall defend, indemnify, save, and hold harmless the HCPA and every other member agency against such liability to the extent that it arises from the gross willful misconduct of its own Directors, officers, employees and agents.  The cost of defending against such liability, including reasonable attorneys fees, shall be allocated in accordance with the cost allocations described in this paragraph.

 19.  Cooperation.  All the member agencies agree that the execution of this Agreement and their respective monetary contributions are an expression of intent to cooperate in the preparation and completion of an HCP/NCCP and each agrees not to unreasonably withhold its consent to the implementation and accomplishment of the overall purpose for which this Agreement is made.  However, signing this Agreement does not bind any agency to sign future related agreements including an agreement to implement the HCP/NCCP.

 20.  Termination. This Agreement shall terminate when the HCP/ NCCP is approved by the U.S. Fish and Wildlife Service, the California Department of Fish and Game, and every other regulatory agency that needs to approve it, and all amounts owing under this Agreement have been paid, including payment of refunds as described in paragraph 15.  Said paragraph 15, to that extent, and paragraphs 18, 24, 30 and 32 shall survive the termination of the Agreement.  Before the HCP/NCCP is approved, a separate Implementation Agreement shall describe the implementation of the HCP/NCCP and any future cooperation among member agencies.  Member agencies may withdraw from participation by vote of their governing board or council and upon 30 days written notice to other member agencies.  Payments on deposit will remain in the HCPA account, however no additional payments will be required of the withdrawing agency, except for payments required under paragraph 18 and resulting from liability incurred while the withdrawing agency was still party to this Agreement.  The withdrawing agency will be eligible for refunds only as specified in paragraph 15 and upon regulatory approval of the HCP/NCCP and consequent termination of this Agreement.

 21.  Amendment. This Agreement may be amended only by a written agreement approved by a unanimous vote by the member agencies.

 22.  Effective Date.  This Agreement shall become effective upon approval by all contributing agencies, or on June 30, 2000, if at least four member agencies have approved the Agreement, whichever is earlier.

23.  Execution.  This Agreement may be executed in several counterparts, each of which shall constitute one and the same instrument and shall become binding on the parties when at least one copy hereof shall have been signed by all parties hereto.  In approving this Agreement, it shall not be necessary to produce or account for more than one such counterpart.

24.  Dispute Resolution.  The parties shall first submit any dispute concerning their obligations or duties under this Agreement to mediation to be conducted by a mutually acceptable professional mediator.  In the event that the parties are unable to resolve any such dispute in the mediation process, the parties may then proceed with such remedies in law or equity that they may have.  Each party shall bear its own legal fees and costs throughout the process except as is otherwise specified in paragraph 18. 

25.  Notices.  Notices authorized or required to be given pursuant to this Agreement shall be in writing and shall be mailed, faxed or delivered during regular business hours to the addresses specified below adjacent to the signatures.

 26.  Headings.  All headings contained herein are for convenience of references only and are not intended to define or limit the scope of any provision of this Agreement.

 27.  Severance.  Should any part, term or provision of this Agreement be determined by the courts to be illegal or in conflict with any law of the State of California, or otherwise be rendered unenforceable or ineffectual, the validity of the remaining parts, terms or provisions hereof shall not be affected thereby.

 28.  No Third Party Benefits.  It is not intended that any person or entity occupy the position of intended third-party beneficiaries of the obligations assumed by any party under this agreement.

 29.  Entire Agreement. This Agreement contains the entire understanding of the HCPA and the member agencies relative to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings or agreements.   

30.  Waiver of Personal Liability.  No Commissioner, Supervisor, Councilmember, Director, officer, employee, agent or consultant of any of the member agencies is individually or personally liable for any claims, losses, damages, costs, injury, or liability of any kind, nature and description arising from actions of any of the member agencies under this agreement.

 31.  Successors and Assigns.  This agreement is binding upon and inures to the benefit  of the successors to the member agencies.  None of the member agencies may assign any right or obligation hereunder without the express written consent of all of the others. 

32.  California Law.  This Agreement shall be governed by and construed in accordance with the laws of the State of California.  The venue for any legal action pertaining to this Agreement shall be Contra Costa County, California.

 33.  Representation by Counsel.  The member agencies hereto each acknowledge that they have been represented in the negotiations for, and in the preparation of this Agreement by counsel of their own choosing; that they have read this Agreement or have had it read to them by their counsel; and that they are fully aware of and understand its contents and its legal effect.  Accordingly, this Agreement shall not be construed against any party, and the usual rule of construction that an Agreement is construed against the party which drafted it shall not apply.

 34.  Responsibility of Member Agencies for Staff Compensation.   Participants in the EGC and the Public Outreach and Involvement Program,  employees of member agencies, including employees of the Contra Costa County Community Development Department serving as the Treasurer, Controller, or Coordinating Agency for the HCPA, shall not receive any compensation from the HCPA for serving as such, but each shall be entitled to payment of salary earned, and reimbursement of any expenses actually incurred, in connection with serving as such from his or her respective employing member agency to the extent determined by such member agency on whose behalf they are participating.  All such amounts shall be paid by such member agency, and the HCPA shall not be responsible for payment of such salary and expenses, except as expressly set forth in this Agreement, and except for payments described in paragraphs 8 and 10 to the Contra Costa County Community Development Department to reimburse the salary and expenses of its employees in their capacity as Coordinating Agency and Treasurer and Controller. 

City Administration
City of Brentwood City Council
150 City Park Way
Brentwood, CA 94513
(925) 516-5440
Fax (925) 516-5441
E-mail allcouncil@brentwoodca.gov