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{00496675.Docx.}1 Multi-Party MULTI-PARTY MITIGATION AND LAND DEDICATION IN-LIEU OF DEVELOPMENT FEE AGREEMENT THIS MULTI-PARTY MITIGATION AND LAND DEDICATION IN-LIEU OF DEVELOPMENT FEE AGREEMENT (“Agreement”) is entered into by and among the EAST CONTRA COSTA COUNTY HABITAT CONSERVANCY (the “Conservancy”), the CITY OF PITTSBURG (“Pittsburg”), the CITY OF BRENTWOOD (“Brentwood”), NORTONVILLE, LLC, a California limited liability company (“Nortonville”), SEECON BUILT HOMES, INC., a California corporation (“SBH”), WEST COAST HOME BUILDERS, INC., a California corporation (“West Coast”), Conservancy, Pittsburg and Brentwood are sometimes collectively referred to herein as the “Permittees.” Nortonville, SBH and West Coast are sometimes collectively referred to herein as the “Landowner Parties.” The Permittees and Landowner Parties are sometimes hereinafter each individually referred to as a “Party” and collectively referred to as the “Parties.” 1. RECITALS. 1.1 In December, 2006, the East Contra Costa County Habitat Conservation Plan Association completed preparation of the East Contra Costa County Habitat Conservation Plan/Natural Community Conservation Plan (“HCP/NCCP”). The HCP/NCCP, among other things, provides a framework to protect natural resources in eastern Contra Costa County, provides the United States Fish & Wildlife Service (“Service”) with a basis to issue an incidental take permit under Section 10(a)(1)(B) of the Endangered Species Act, and provides the California Department of Fish & Wildlife (“CDFW”) with a basis to issue a Natural Community Conservation Plan (“NCCP”) permit under Section 2835 of the California Fish and Game Code. 1.2 The conservation strategy included in the HCP/NCCP proposes a system of new preserves linked to existing protected land to form a network of protected areas (the “Preserve System”). One of the main purposes of the Preserve System is to offset the impacts to species and habitats of urban development. The HCP/NCCP is intended to streamline certain permitting processes for future development and to rely on fees and land dedications provided by future development to assemble a portion of the Preserve System. 1.3 The Conservancy was created on April 16, 2007, pursuant to a joint exercise of powers agreement, to implement key aspects of the HCP/NCCP, including assembly and management of the Preserve System in compliance with the terms of the HCP/NCCP. The County of Contra Costa and the Cities of Pittsburg, Brentwood, Oakley, and Clayton approved the HCP/NCCP, adopted implementing ordinances and executed the Implementing Agreement. The Contra Costa County Flood Control and Water Conservation District and the East Bay Regional Park District also approved the HCP/NCCP and executed the Implementing Agreement. Therefore, such local agencies are bound to adhere to the terms of the HCP/NCCP and Implementing Agreement to offset the impacts of development projects that may be approved by these local agencies and to otherwise conserve natural resources as set forth in the HCP/NCCP. 1.4 Based on the HCP/NCCP, on July 25, 2007, the Service issued an incidental take permit under Section 10(a)(1)(B) of the Endangered Species Act (“Incidental Take Permit”), {00496675.DOCX.}1 and on August 6, 2007, CDFW issued a Natural Community Conservation Plan Permit under Section 2835 of the California Fish and Game Code (“NCCP Permit”), for the Plan Area to the County of Contra Costa, the Cities of Pittsburg, Brentwood, Oakley, and Clayton, the Contra Costa County Flood Control and Water Conservation District, and the East Bay Regional Park District. The Incidental Take Permit and the NCCP Permit are sometimes jointly referred to herein as the “Permits.” On May 4, 2012, the U.S. Army Corps of Engineers (“ACOE”) issued a Regional General Permit for most types of development covered under the HCP/NCCP, which permit was renewed on June 6, 2017. 1.5 The Landowner Parties intend to develop certain properties and projects that are set forth herein. The Landowner Parties have disputes and issues with the validity, funding and operation of the HCP/NCCP Plan and the validity, applicability and amount of fee requirements that apply to these properties and projects pursuant to the HCP/NCCP, and they believe that alternative mitigation consistent with the HCP/NCCP is appropriate. Accordingly, they have explored these alternatives with the Permittees and are willing to enter into this Agreement in order to use such alternative mitigation. 1.6 In light of all information available to the Parties, including, but not limited to, the HCP/NCCP and relevant biological analyses, the Parties have developed alternative means of meeting the HCP/NCCP requirement to pay a development fee (“Development Fee”) for potential future development activities impacting certain properties within the Plan Area currently owned by some of the Landowner Parties and identified on Exhibit A attached hereto (“Covered Properties”). The alternatives, including land dedication and reduced Development Fee amounts, were developed in accordance with HCP/NCCP and Implementing Agreement provisions regarding “land dedication in-lieu of development fee,” which is more particularly described below, and are intended to comply with, and maintain the level of conservation identified in, the HCP/NCCP and its Biological Opinion. In conjunction with the other applicable conservation measures of the HCP/NCCP, the alternatives for meeting the HCP/NCCP requirement to pay a Development Fee provide a basis for the Permittees to extend Take Authorization for development activities that may be approved on the Covered Properties, as further defined in Section 2 below, (the “Covered Projects”). 1.7 While some of the alternatives set forth in this Agreement, including, specifically, the land dedication and reduced Development Fee amounts set forth below, differ from the standard HCP/NCCP Development Fee, the Parties agree that the alternatives described herein will serve to provide compensatory mitigation for the Covered Projects’ impacts to HCP/NCCP Covered Species that meets or exceeds the compensatory mitigation provided by payment of the standard Development Fee. In light of this fact, the alternatives described in this Agreement support and advance the implementation of the HCP/NCCP’s conservation strategy, the overall viability of the Preserve System, and the Permittees’ ability to achieve the HCP/NCCP goals and objectives. The Parties agree that the alternatives set forth in this Agreement will adequately mitigate the Covered Projects’ impacts on the species and habitat covered in the HCP/NCCP (“HCP/NCCP Covered Species”). 1.8 As represented in the letter attached hereto as Exhibit B, the Service and CDFW acknowledge and agree that this Agreement, and the commitments and alternative mitigations set forth in this Agreement, if implemented and adhered to, are consistent with and will meet or exceed the compensatory mitigation requirements for the Covered Projects’ impacts to HCP/NCCP Covered Species in accordance with the HCP/NCCP and its Biological Opinion, {00496675.DOCX.}2 Implementing Agreement, and the Permits identified in Recital 1.4, that no further mitigation or compensation is required thereunder and that the Covered Projects can be authorized for Take Authorization under the Permits, pursuant to the terms and conditions of this Agreement. 1.9 The purposes of this Agreement are to: (a) Set forth the alternatives for fulfilling the HCP/NCCP requirement to pay a Development Fee in accordance with Chapter 8.6.7 of the HCP/NCCP and Section 13.2.2.2 of the Implementing Agreement, including land dedications and reduced Development Fee amounts, that are agreed upon by the Parties and that – in conjunction with the other HCP/NCCP measures – provide a basis for the Permittees to extend Take Authorization for the Covered Projects; (b) Describe remedies and recourse should any Party fail to perform its obligations as set forth in this Agreement; (c) Provide assurances to the Landowner Parties that upon performance of the terms and conditions in the Agreement and compliance with other applicable HCP/NCCP requirements, the Permittees will provide take authority for the Covered Projects, and the applicable Landowner Parties shall become Third Party Participants under the Implementing Agreement, the HCP/NCCP, and the Permits, with all the rights and benefits thereof; (d) Except as otherwise set forth herein, settle any and all disputes among the Parties relating to the HCP/NCCP, Implementing Agreement, and the Permits identified in Recital 1.4, including but not limited to the establishment, implementation and amount of the Development Fees applicable to the Covered Projects and any other projects proposed on any properties currently owned by any of the Landowner Parties or their affiliated entities except those disputes that may arise concerning the Parties’ performance under this Agreement; and (e) Acknowledge that the Covered Project on the Bridlegate Property has not yet been approved by Brentwood and that nothing in this Agreement is intended to or shall limit the discretion of Brentwood, in its consideration of the Covered Project on the Bridlegate Property, to approve, deny or condition any and all land use applications for the such Covered Project or any other project on the Bridlegate Property, except as specifically provided in this Agreement. 2. DEFINITIONS. “2019 Dollars” means dollar amounts as adjusted each year by the lower of: (a) the annual Home Price Index for the Oakland-Fremont-Hayward, CA Metropolitan Division for the prior calendar year (Office of Federal Housing Enterprise Oversight) and the CPI for the San Francisco–Oakland–San Jose Metropolitan Area (U.S. Bureau of Labor Statistics), with thirty percent (30%) of each dollar amount adjusted by the Home Price Index, and seventy percent (70%) of each dollar amount adjusted by the CPI; or (b) the indices used for the Automatic Annual Adjustment of Mitigation Fees pursuant to Chapter 9.3.1 of the HCP/NCCP. “ACOE” means the U.S. Army Corps of Engineers. “Agreement” means this Multi-Party Mitigation and Land Dedication In-Lieu of Development Fee Agreement.
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