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COUNCIL AGENDA ITEM NO. 16
Meeting Date: March 28, 2000
Participation in Eastern Contra Costa County Regional Habitat Conservation
Submitted by: Mitch Oshinsky AICP, Community Development Director
Winston Rhodes AICP, Associate Planner
Approved by: Jon
Elam, City Manager
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
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.
November 10, 1998, the City Council directed staff to work with other
East County jurisdictions and State and federal agencies to create a
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.
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.
Draft HCP Preparation Resolution
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD TO PARTICIPATE
IN THE PREPARATION OF AN EAST CONTRA COSTA COUNTY HABITAT CONSERVATION
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
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
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,
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
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
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.
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 .
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
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 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.
of acronyms and abbreviations:
and abbreviations used in this Agreement are defined in the text when
first used. For clarity, a list of acronyms and explanations is also
CDFG: California Department
of Fish and Game
Environmental Quality Act
CESA: California Endangered Species Act
Executive Governing Committee (committee of elected officials
which oversees the HCPA)
FESA: Federal Endangered Species Act
Habitat Conservation Plan (relates to FESA)
HCPA: East Contra
Costa County Habitat Conservation Plan Association
Communities Conservation Plan (relates to CESA)
Environmental Policy Act
California Regional Water Quality Control Board
United States Army Corps of Engineers
United States Environmental Protection Agency
United States Fish and Wildlife Service
Government Code sections 6500-6599.1, unless otherwise specified
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
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
the member agencies agree to the following terms and provisions:
recitals contained herein are an integral part of this Agreement.
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
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
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.
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.
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.
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.
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.
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
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).
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.
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.
Duties of the Executive Governing Committee. The duties
of the EGC shall include the following:
The EGC shall govern and operate the HCPA.
The EGC shall provide policy direction in the preparation of
the East Contra Costa County HCP/NCCP and related documents.
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.
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.
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
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.
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.
The EGC shall adopt a conflict of interest code for the HCPA.
The EGC shall perform other decision-making functions for the
HCPA as provided by this Agreement or as are necessary for developing
The EGC shall meet approximately every three months.
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.
The EGC shall manage
any claims and litigation brought against the HCPA or its member agencies.
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:
Preparing or supervising the preparation of meeting materials;
Serving as a point of contact for the public;
Serving as a point of contact for federal, state, and regional
regulatory agencies and coordinating interaction with these agencies;
Supervising the daily operations of consultants;
Approving consultant invoices for payment within 60 days after
receipt of a complete invoice and forwarding such invoices to the EGC
for subsequent ratifications;
Coordinating the implementation of the Public Outreach and Involvement
Submitting itemized invoices to member agency staff documenting
the costs incurred in performing the duties of Coordinating Agency.
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:
Serve as the staff of the EGC except as provided otherwise in
Negotiate a Memorandum of Agreement with the federal and State
resource agencies responsible for endangered species regulation for
final approval by the EGC;
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;
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.
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.
Develop the Implementation Agreement for the completed HCP/NCCP
for approval by the EGC.
Provide periodic updates on the development of the HCP/NCCP to
the governing boards and councils of member agencies, as directed by
Prepare a proposed Conflict of Interest Code for adoption by
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:
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.
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;
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;
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;
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;
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.
Submit itemized invoices to member agency staff documenting the
costs incurred in performing the duties of HCPA Treasurer and Controller.
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.
Anticipated Schedule. The HCPA will comply with the following
schedule (as it may be revised in writing by member agencies) to develop
Hire consultant and initiate Public Outreach and Involvement
Prepare the Administrative Draft HCP/NCCP.
Circulate the Draft HCP/NCCP and Draft CEQA documents.
Land use planning agencies consider adopting Final HCP/NCCP,
approving the Implementation Agreement, and completing the CEQA process.
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.
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.
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.
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.
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.
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:
Federal funds for conservation planning which are passed through
to state government and the CDFG for disbursement in accordance with
section 6 of FESA.
Conservation planning funds which may be appropriated by the
California Legislature to support development of NCCPs.
Grant programs administered by USEPA, including the State, Local,
Tribal Wetlands Grant Program which supports planning for wetlands conservation.
Grants from the National Fish and Wildlife Foundation and many
other private organizations.
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.
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.
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.
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.
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.
Amendment. This Agreement may be amended only by a written
agreement approved by a unanimous vote by the member agencies.
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.
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.
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.
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.
headings contained herein are for convenience of references only and
are not intended to define or limit the scope of any provision of this
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
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
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
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.
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.
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.
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.
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 of Brentwood City Council
150 City Park Way
Brentwood, CA 94513
Fax (925) 516-5441