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HomeMy WebLinkAboutMemorandum of Understanding (MOU)Exhibit E Santa Clara Valley Habitat Plan Memorandum of Understanding Item IX.A. SANTA CLARA VALLEY HABITAT PLAN MEMORANDUM OF UNDERSTANDING This Memorandum of Understanding ( "MOU ") is entered into by and among the Santa Clara Valley Habitat Agency ( "Agency "), the County of Santa Clara (the "County "), the City of San Jose ( "San Jose "), the Santa Clara Valley Water District ( "SCVWD "), the Santa Clara Valley Transportation Authority ( "VTA" ), the City of Gilroy ( "Gilroy "), the City of Morgan Hill ( "Morgan Hill "), and the Santa Clara County Open Space Authority ( "OSA "). The parties may be referred to collectively as the "Parties" and individually as a "Party" in this MOU. The County, San Jose, SCVWD, VTA, Gilroy and Morgan Hill are collectively referred to as "Local Partners." RECITALS A. The Local Partners have been engaged in a lengthy process to develop a joint habitat conservation plan and natural communities conservation plan entitled the "Santa Clara Valley Habitat Plan" ( "Habitat Plan "). The purposes of the Habitat Plan include the long -term protection of ecosystems and biodiversity within the geographic area covered by the Habitat Plan, and the provision of incidental take authorization pursuant to the Federal Endangered Species Act and the California Natural Community Conservation Planning Act for local land use and public agency infrastructure activities. C. The Habitat Plan and the Santa Clara Valley Habitat Plan Implementing Agreement ( "Implementing Agreement ") identify certain duties and obligations that must be fulfilled, in whole or in part, by an "Implementing Entity." D. The Local Partners determined that it was appropriate to establish a joint powers agency to serve as the Implementing Entity for the Habitat Plan. The Joint Powers Act, Gov. Code § 6500 et seq., requires that all parties to a joint powers agreement have common powers. One of the primary functions of the joint powers agency is to adopt mitigation fees for development projects pursuant to the Mitigation Fee Act, Government Code § 66000 et seq., to help finance Habitat Plan implementation activities. Because only certain of the Local Partners (the County, San Jose, Morgan Hill and Gilroy) have clear authority to adopt mitigation fees, the Local Partners determined that the parties to the joint exercise of powers agreement ( "Agency Agreement ") creating the Santa Clara Valley Habitat Agency would be limited to the County, San Jose, Morgan Hill and Gilroy. Nonetheless, because the Implementing Agreement and the Permits associated with the Habitat Plan provide that all Local Partners are responsible for ensuring that the Habitat Plan is fully implemented, all of the Local Partners will play a role in the Santa Clara Valley Habitat Agency. E. The OSA will also play a critical role in Habitat Plan implementation, Including potential contributions of land to the Habitat Plan Reserve System and /or potentially undertake management and monitoring, and /or provide other services related to implementation of the Habitat Plan. Item IX.A. NOW, THEREFORE, the Parties, for and in consideration of the mutual promises and agreements herein contained, agree as follows: 1. PURPOSES The purposes of this MOU are to: Further define the roles, rights and responsibilities of the Parties with respect to Habitat Plan implementation activities; Explain the relationships between the Parties; Establish processes for resolving disputes and addressing other issues that may arise with respect to the Habitat Plan; 2. EFFECTIVE DATE The following conditions must occur before this MOU will go into effect: 1) the Implementing Agreement must be fully executed; and 2) all parties must execute this MOU. The effective date of this MOU will occur at the date when both of the above mentioned conditions have been fulfilled. 3. DEFINITIONS Unless the context otherwise requires, the terms used in this MOU shall have the same definitions as provided in the Implementing Agreement. 4. LOCAL PARTNER AND AGENCY ROLES (a) All of the Local Partners are Permittees and parties to the Implementing Agreement. Therefore, all of the Local Partners must ensure that they comply with the Habitat Plan and Permits. However, although each Local Partner must ensure that its own actions comply with the Plan and Permits, the primary responsibilities for implementing the Habitat Plan rests with the Agency. Among other things, the Agency is responsible for ensuring that there is sufficient funding to perform all implementation activities, including activities during the permit term and in perpetuity. Except for paying SCVHP Fees associated with their own projects and, where applicable, collecting SCVHP Fees from private project applicants and transmitting SCVHP Fees to the Agency, the Local Partners are not required to fund implementation activities. These roles and responsibilities are more fully described in Chapter 8 of the Habitat Plan. (b) Although VTA and SCVWD are not parties to the Agency Agreement, all of the Local Partners will play an active role in the Agency through, among otherthings, their representatives on the Implementation Board of the Agency. The fact that VTA and SCVWD are not parties to the Agency Agreement should not be viewed in any way as diminishing their rights and responsibilities established in the Habitat Plan or Permits. Page 2 of 13 19TIOl►:wTA1111 5. OSA ROLE (a) Although OSA is not a Permittee, the Parties anticipate that OSA may contribute land and potentially other resources that will assist with fulfilling Habitat Plan implementation responsibilities. Exhibit A which is attached hereto and incorporated by reference herein, are the "Principles of Participation in the Santa Clara Valley Habitat Plan" that were adopted by the OSA Board on September 9, 2010. (b) While the OSA is not a Permittee under the Habitat Plan, the OSA has the option to apply for take authorization under the Plan as a Participating Special Entity. To receive this take authorization, the OSA would follow the procedures outlined in the Habitat Plan, including approval by the Implementing Entity and the Wildlife Agencies. To anticipate this, the estimated impacts of OSA activities on the covered species will be included in the Plan. Any Habitat Plan fees due would be offset by an equivalent value of OSA land being concurrently incorporated into the Habitat Plan Reserve System, 6. COMPENSATION FOR LOCAL PARTNER CONTRIBUTIONS TO IMPLEMENTATION REQUIREMENTS The Local Partners may contribute land, provide services, or undertake other activities (e.g., habitat creation, restoration, monitoring) that fulfill Habitat Plan implementation requirements. The process by which the Agency will evaluate the value of these contributions and give credit to the Local Partners for these "in lieu" activities is set forth in Section 9.4.1 of the Habitat Plan. 7. IMPLEMENTATION FUNDING SHORTFALLS (a) Although the Local Partners believe that the cost and funding assumptions in the Habitat Plan are sound, there is always the possibility that there will be funding shortfalls and /or that the costs of implementing the Habitat Plan exceed expectations. As set forth in the Habitat Plan and Implementing Agreement, the Agency is responsible for implementation and any funding shortfalls, and for ensuring that SCVHP fees keep pace with Habitat Plan implementation costs. Except for SCVHP fees associated with their own Covered Activities, the Local Partners are not required to contribute any of their funds toward Habitat Plan implementation. (b) If there is a funding shortfall, the Agency will take all feasible steps to address the funding shortfall, including but not limited to seeking loans from all possible sources. (c) If, despite all reasonable efforts, the Agency is unable to address a funding shortfall, the Local Partners will meet and confer regarding how to proceed. Options that may be considered include, but are not limited to, loans from one or more Local Partners to the Agency, grants from Local Partners, government agencies or non- governmental entities, relinquishing the permits, and /or amending the Habitat Plan and Permits. (d) No Local Partner shall be required to provide funding to the Agency. If a Local Partner, in the sole discretion of its governing body, agrees to provide funding to the Agency, it may do so on the condition that the Agency either provide the Local Partner with credit toward future SCVHP Fees or repay the loan at a future date. Page 3 of 13 Item IX.A. 8. HABITAT PLAN /PERMIT AMENDMENTS (a) There are a variety of reasons why the Local Partners may want or need to amend the Habitat Plan and Permits over the 50 -year term, including but not limited to the following: • to add or remove Covered Species; • to expand or retract the Permit Area boundaries; • to add a Permittee; • to address a significant funding shortfall that cannot be addressed through any feasible means; • to reflect significant changes in Habitat Plan assumptions (e.g., the amount or timing of "Take "); or • to provide for additional Covered Activities. (b) If the Agency or one or more of the Local Partners desires to amend the Habitat Plan and/or Permits, then that Local Partner shall notify the Agency and all of the other Local Partners of this desire and provide an explanation of the proposed amendment and reasons for the amendment. (c) Upon being notified by the Agency or a Local Partner of a request to amend the Habitat Plan and Permits, the Agency and all Local Partners will meet and confer regarding whether to proceed with the proposed amendment. (d) The costs associated with any amendment to the Habitat Plan and Permits (including but not limited to preparation, analysis and approval of the amendment documents and implementation responsibilities resulting from the amendment) shall be borne by the Local Partners in a manner that reflects the relative benefit of the amendment to each Local Partner. A cost allocation shall be mutually agreed upon by the Local Partners before any costs are incurred in relation to the amendment. Any Local Partner that commences work on an amendment prior to this proceeds at its own risk. (e) Any decision to seek an amendment to the Habitat Plan and Permits, and the cost allocation associated with the amendment, shall be approved by the governing bodies of all of the Local Partners before any work is begun or any costs are incurred in relation to the amendment. Any Local Partner that commences work on an amendment prior to this proceeds at its own risk. 9. WITHDRAWAL (a) If a Local Partner decides to withdraw from the Implementing Agreement and relinquish its Permits, it shall first provide 180 days written notice to the Agency, the other Local Partners and the OSA. Notwithstanding such withdrawal, the withdrawing Local Partner shall remain obligated, to the same extent, if any, that the remaining Parties are obligated, to contribute amounts necessary to pay any debts, liabilities and obligations of the Agency arising from or related to actions taken by the Agency while the withdrawing Party was a party to the Implementing Agreement. Upon withdrawal, the withdrawing Party shall no longer be a Party to this MOU or a Local Partner, and the term "Parties" and "Local Partners' as used in this MOU shall thereafter mean the remaining Parties and Local Partners to this MOU. Page 4 of 13 Item IX.A. (b) The OSA may withdraw from the MOU upon ninety (90) days written notice to the Agency and the Local Partners. Upon withdrawal, the OSA shall no longer be a Party to this MOU, and the term "Parties" as used in this MOU shall thereafter mean the remaining Parties and Local Partners to this MOU. (c) Within 30 days after receiving a notice of withdrawal, the Parties who will remain will meet to discuss whether any amendments to the Habitat Plan, Permits or Implementing Agreement are necessary or appropriate in light of the withdrawal, and to prepare any appropriate amendments for consideration by the governing bodies of the remaining Parties. The requirements of this provision are intended to be in addition to any notice or other requirements set forth in the Implementing Agreement or Permits pertaining to withdrawal from or termination of the Habitat Plan or Permits. 10. TERMINATION BY ALL LOCAL PARTNERS If the governing bodies of all or some of the Local Partners agree to relinquish the Permits and terminate the Implementing Agreement, then the Agency and Local Partners will undertake a process to discuss and resolve the following issues: Calculating and funding the amounts necessary to pay any debts, liabilities and obligations of the Agency arising from or related to actions taken by the Agency while the Permits and Implementing Agreement were in effect, including but not limited to funding any endowment necessary for ongoing obligations related to Reserve System lands; and Identifying one or more successor(s) to fulfill the continuing obligations of the Agency. The dispute resolution process in Section 15 of this MOU may be used for this purpose. 11. REMEDIES FOR HABITAT PLAN /PERMIT /IMPLEMENTATION AGREEMENT VIOLATIONS (a) Although the Wildlife Agencies will issue separate permits to the Agency and Local Partners, the obligations imposed by the Habitat Plan, Implementation Agreement and Permits operate collectively. Therefore, if the Agency or a Local Partner violates the Habitat Plan, Implementation Agreement or Permits in a way that puts the overall Habitat Plan or Permits at risk or subjects the Agency and /or Local Partners to an enforcement action, then the other Parties may take any and all commensurate and reasonable action against the violating Party to remedy the noncompliance, including but not limited to filing a lawsuit seeking injunctive relief or specific performance. (b) The Parties shall engage in the dispute resolution process set forth in Section 15 of this MOU prior to filing a lawsuit for an alleged violation. The dispute resolution process is not required, however, if there is a threat of imminent harm to any Party or if the Wildlife Agencies have notified the Parties of their intent to suspend the Permits or undertake other enforcement action. 12. INDEMNIFICATION AND INSURANCE (a) Except as provided in Section 14(c) of this MOU, the Agency shall indemnify, defend and hold harmless all of the Local Partners and the OSA and their officers, Page 5 of 13 Item IX.A. agents, and employees from any claim, liability, loss, injury or damage arising out of, or in connection with, the adoption, execution, performance or implementation of the Habitat Plan, the EIR/EIS, the Permits, the Implementing Agreement, the Agency Agreement or this MOU provided, however, that this obligation by the Agency shall not apply to; (1) reckless, intentional, or willful conduct leading to personal injury, or (2) any claims, demands, damages, costs, expenses or suits by one party to this MOU against one or more other parties relating to an alleged breach of either agreement. The Agency shall reimburse the Local Partner(s) and the OSA for all reasonable costs, attorneys' fees, expenses and liabilities incurred with respect to any litigation or action in which the Agency is obligated to indemnify, defend and hold harmless the Local Partner(s) and the OSA under this MOU. Any indemnified party may elect to provide its own defense at that party's own expense. (b) It is the intent of the Parties that the provisions of this Section 12 provide the broadest possible coverage for the Local Partners. The Agency shall obtain and maintain insurance to provide sufficient coverage to fulfill its obligations under this Section. (c) Each Local Partner shall require that any consultant hired to implement this MOU obtain and maintain insurance policies to provide sufficient coverage to fulfill its obligations under this Section. (d) If any claim, liability, loss, injury or damage for which the Agency is obligated to indemnify, defend and hold harmless the Local Partner(s) and the OSA pursuant to this Section 12 is filed or incurred before the Agency is formed, has sufficient revenues or obtains sufficient insurance to fulfill its obligations under this Section 12, then the Local Partner(s) may bear their own their reasonable costs, attorneys' fees, expenses and liabilities incurred with respect to any litigation or action in which the Agency is obligated to indemnify, defend and hold harmless the Local Partner(s) and the OSA under this Section 12 and recover them from the Agency at a future date, and the Agency shall not raise any defenses related to the timeliness of such a claim for recovery (e.g., statute of limitations, laches) against the Local Partner(s) or the OSA. 13. AGENCY FAILURE /INABILITY TO PERFORM (a) If, for any reason, the Agency is unable or unwilling to perform its implementation duties, then the Local Partners will meet and confer regarding how to proceed. Options that may be considered include, but are not limited to, recommending that the parties to the Implementing Agreement dissolve the Agency and that the Local Partners establish a new implementing entity or reallocate Habitat Plan implementation obligations. (b) If a particular Local Partner or its representatives to the Governing Board or Implementation Board are preventing the Agency from fulfilling its duties, then the other Local Partners shall notify the governing body of the Local Partner that is preventing the Agency from fulfilling its duties and request that the governing body promptly address the situation. If the situation is not resolved within 60 days, the other Local Partners may seek judicial relief, including but not limited to requesting that the court reform the Implementing Agreement without the consent of the Local Partner that is preventing the Agency from fulfilling its duties. Page 6 of 13 Item IX.A. 14. COMPENSATION FOR SERVICES /ACTIVITIES PROVIDED TO AGENCY (a) Due to the necessity and desire to keep Habitat Plan implementation costs as low as possible, the Agency may contract for many goods and services. In procuring goods and services, the Agency will utilize a selection process that is fair, objective and impartial, and is intended to result in the selection of a provider that provides the best value and meets the needs of the Agency. The Parties acknowledge that they are not entitled to any rights or preferences in the Agency's selection process. If a Party believes that it has been treated unfairly during any Agency selection process, it may invoke the dispute resolution process set forth in Section 15 of this MOU. (b) If a Party provides services to the Agency, it may negotiate with the Agency to be compensated with cash or credits toward SCVHP Fees. The form of compensation may be a factor that the Agency considers during its selection process. (c) If a Party contracts with the Agency to provide land, services or perform other activities on behalf of the Agency, then any indemnity and defense responsibilities related to that arrangement shall be addressed in the agreement for the particular goods and services, and the indemnification and defense provisions in Section 12 of this MOU shall not apply. 15. DISPUTE RESOLUTION PROCESS In addition to the other provisions of this MOU that require the Parties to engage in the dispute resolution process in this Section, any Party may request that the Parties voluntarily engage in the dispute resolution process set forth in this Section at any time and for any reason related to the Habitat Plan, Permits, Implementing Agreement or any matters related thereto. The intent of this provision is to provide an informal dispute resolution measure which is alternative to a court action. (a) Informal Negotiations Before Mediation. Any negotiations the Parties may undertake to resolve disputes before Mediation is initiated are for settlement purposes only and are not binding. Any Party may notify any other Party of a disagreement or dispute regarding provisions of the Habitat Plan, Permits, Implementing Agreement or any matters related thereto. That notifying Party shall first request discussion among all the Parties. The dispute may be informally resolved by consensus of the Parties. Only after proceeding through such an informal dispute resolution process described in this Section may a Party seek mediation as described in Section 15 (b). (b) Mediation. (i) Non - Binding Nature of Mediation. If any dispute or issue related is not resolved through informal negotiations, the Parties agree to attempt to resolve the matter through mediation. Any mediation is voluntary, non- binding, and intended to provide an opportunity for the Parties to arrive at a mutually agreeable solution. (ii) Initiation of Mediation. Any Party may initiate mediation for any dispute or issue related to this MOU by submitting a written request for mediation to the other Parties involved in the dispute. The request for mediation shall contain a brief statement of the nature of the dispute or claim, and the names, addresses, and telephone numbers of those who will represent the Party submitting the request for mediation. Item IX.A. Page 7 of 13 (iii) Selection of Mediator. Within 14 days of receiving a request for mediation, the involved Parties shall meet and confer to select a mediator agreeable to the Parties. Any mediator selected shall have expertise in the area of the dispute and be knowledgeable about the mediation process. No person shall serve as a mediator in any dispute in which that person has any financial or personal interest in the result of the mediation. Before accepting an appointment as mediator, the prospective mediator shall be required to disclose all circumstances likely to create a perception of bias or prevent a prompt meeting with the Parties. Upon receipt of such information, the Parties will meet and confer and decide whether to select another mediator. (iv) Representation During Mediation. The Parties may be represented by persons of their choice, who shall have full authority to negotiate on behalf of the Party they represent. The names, addresses, and telephone numbers of such representatives shall be communicated in writing to all Parties and the mediator. (v) Time and Place of Mediation. The Mediator shall set the time of each mediation session. The mediation shall be held at any convenient location within Santa Clara County that is agreeable to the mediator and the involved Parties. All reasonable efforts will be made by the Parties and the mediator to schedule the first session within thirty (30) days after selection of the mediator. (vi) Identification of Matters in Dispute. At least 10 days before the first scheduled mediation session, each involved Party shall provide the mediator with a brief memorandum not longer than 10 pages setting forth its position with regard to the issues that need to be resolved. At the mediator's discretion, the memoranda may be mutually exchanged by the Parties. (vii) Authority of Mediator. The mediator shall not have authority to impose a settlement on the Parties, but will attempt to assist the Parties in reaching a satisfactory resolution of their dispute. The mediator is authorized to conduct joint and separate meetings with the Parties and to make oral and written recommendations for settlement. Whenever necessary, the mediator may also obtain expert advice concerning technical aspects of the dispute, provided the involved Parties agree and assume the expenses of obtaining such advice. Arrangements for obtaining such advice shall be made by the mediator or the Parties, as determined by the mediator. (viii) Privacy. Mediation sessions are private. The Parties and their representatives may attend mediation sessions. Other persons may attend only with the permission of the Parties and consent of the mediator. (ix) Confidentiality. Confidential information disclosed to a mediator by the Parties or by witnesses in the course of mediation shall not be divulged by the mediator or the Parties. All records, reports, and other documents and information produced during mediation shall be confidential. The mediator shall not be compelled to divulge such records or to testify in regard to the mediation in any adversary proceeding or a judicial forum. The Parties shall maintain the confidentiality of the mediation and shall not rely on, or Page 8 of 13 Item IX.A. introduce as evidence in any arbitration, judicial or other proceedings any of the following: (a) views expressed or suggestions made by the other Party With respect to a possible settlement of the dispute; (b) statements made by the other party in the course of the mediation proceedings; (c) proposals made or views expressed by the mediator; or (d) whether the other Party had or had not indicated willingness to accept a proposal for settlement made by the mediator. (x) No Record of Proceedings. There shall be no stenographic or other record of the mediation proceedings. (xi) Termination of Mediation. The mediation may be terminated in any of the following ways: (a) by the execution of a settlement agreement by the Parties; (b) by a written declaration of the mediator to the effect that further efforts at mediation are no longer worthwhile; or (c) by a written declaration of any Party to the mediation that it is terminating the mediation proceedings. (xii) Interpretation and Application of These Mediation Provisions. The mediator shall interpret and apply these mediation provisions insofar as they relate to the mediator's duties and responsibilities. (xiii) Expenses. The expenses of witnesses for each Party shall be borne by the Party producing the witnesses. All other expenses of the mediation, including required travel and other expenses of the mediator, the expenses of any witness called by the mediator, and the cost of any proofs or expert advice produced at the direct request of the mediator, shall be the sole responsibility of the Agency. 16. TERM OF MOU This MOU shall remain in effect until it is terminated by mutual agreement of the Parties. 17. AMENDMENT OF MOU This MOU may be amended only by written agreement executed by all of the Parties. 18. POST - PERMIT ISSUES The Parties anticipate that the Agency will be dissolved at the end of the 50 -year Permit term and that one or more successor entities will need to be identified to fulfill the implementation responsibilities that will continue in perpetuity. In light of this, the Parties agree as follows: By no later than the beginning of year 45 of the Permit term, the Parties will begin the process of identifying all implementation responsibilities that will continue beyond the 50 -year Permit term and related funding requirements (e.g., endowment for continuing obligations related to Reserve System lands); By no later than the end of year 48, the Parties will have identified one or more successor entities to fulfill the implementation responsibilities beyond the 50 -year Permit term and a transition plan will have been completed; and Page 9of13 Item IX.A. By no later than the end of year 49, agreements with the successor entity(ies) will be in place and implementation of the transition plan will have begun. 19. REMEDIES FOR BREACH If a Party shall default on any obligation contained in this MOU, such default shall not excuse any Local Partner from fulfilling its respective obligations under this MOU. Any Party shall be entitled to pursue any and all legal and equitable remedies against any other Party in response to any alleged default under this MOU. Any and all of the remedies provided to the Parties hereunder or by any law now or hereafter enacted are cumulative and the exercise of one right or remedy shall not impair the right of the Parties to any or all other remedies. 20. SEVERABILITY If any court determines that a part, term, or provision of this MOU is 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 by that determination. 21. SUCCESSORS; ASSIGNMENT This MOU shall be binding upon and shall inure to the benefit of the successors of the Parties. No Party may assign any right or obligation hereunder without the consent of the other Parties. 22. NOTICES Notices to the Parties shall be sufficient if delivered as follows County of Santa Clara County Executive 70 W. Hedding Street, 1 f Floor, E. Wing San Jose, CA 95110 Citv of San Jose City Manager 200 East Santa Clara St. San Jose, CA 95113 City of Gilroy City Administrator 7351 Rosanna St. Gilroy, CA 95020 City of Morgan Hill City Manager 17575 Peak Avenue Morgan Hill, CA 95037 Santa Clara Valley Water District Chief Executive Officer 5700 Almaden Expressway San Jose, CA 95118 Santa Clara Valley Transportation Authority General Manager Page 10 of 13 Item IX.A. 3331 North First St. Building B. Second Floor San Jose, CA 95134 Santa Clara County Open Space Authorty General Manager 6980 Santa Teresa Boulevard, Suite 100 San Jose, CA 95119 With a copy to County Counsel County of Santa Clara 70 W. Hedding St., 9th Floor, E. Wing San Jose, CA 95110 San Jose City Attorney City of San Jose 200 East Santa Clara St. San Jose, CA 95113 Gilroy City Attorney City of Gilroy 7351 Rosanna St. Gilroy, CA 95020 Morgan Hill City Attorney City of Morgan Hill 17575 Peak Avenue Morgan Hill, CA 95037 District Counsel Santa Clara Valley Water District 5700 Almaden Expressway San Jose, CA 95118 General Counsel Santa Clara Valley Valley Transportation Authority 3331 North First St. San Jose, CA 95134 Open Space Authority Legal Counsel Wittwer & Parkin, LLP 147 S. River St., Suite 221 Santa Cruz, CA 95060 23. SECTION HEADINGS All Section headings contained herein are for reference only and are not intended to define or limit the scope of any provision of this MOU. 24. COUNTERPARTS This MOU may be executed in counterparts and so executed shall constitute one MOU which shall be binding upon all Parties. A photocopy of the fully executed MOU shall have the same force and effect as the original. Page 11 of 13 Item M.A. 25. SIGNATURES By affixing his /her signature below, each of the persons signing this MOU warrants and represents that he /she has read and understands the MOU, that he /she is authorized to sign this MOU, and that the Party on behalf of whom he /she signs agrees to be bound by its terms. COUNTY OF SANTA CLARA By: Date: Jeffrey V. Smith, County Executive APPROVED AS TO FORM: Lori E. Pegg, Acting County Counsel By: Date: _ Lizanne Reynolds, Acting County Counsel CITY OF SAN JOSE By: Date: Debra Figone, City Manager APPROVED AS TO FORM: Richard Doyle, City Attorney By: Date: _ Vera Todorov, Senior Deputy City Attorney ILROY By. Date: Thomas J. Haglund, City Administrator APPROVED AS TO FORM: By: / I (✓6 G� C f� —� Date: Linda Callon, City Attorney CITY OF MORGAN HILL By: Date: J. Edward Tewes, City Manager APPROVED AS TO FORM: By: Danny Wan, City Attorney Date: Page 12 of 13 Item IX.A. SANTA CLARA VALLEY WATER DISTRICT By: Date: Beau Goldie, Chief Executive Officer APPROVED AS TO FORM: Stanly Yamamoto, District Counsel By: Date: Edward E. Yates, Senior Assistant District Counsel SANTA CLARA VALLEY TRANSPORTATION AUTHORITY By: Date: Michael T. Burns, General Manager APPROVED AS TO FORM: By:. Date: Robert Fabela, General Counsel SANTA CLARA COUNTY OPEN SPACE AUTHORITY By: Date: _ Andrea Mackenzie, General Manager APPROVED AS TO FORM: By: Date: William P. Parkin, Legal Counsel SANTA CLARA VALLEY HABITAT AGENCY By: Date: APPROVED AS TO FORM: By: Date: _ Page 13 of 13 Item IX.A. t✓xh_ Santa Clara County Open Space Authority Principles of Participation in the Santa Clara Valley Habitat Plan These principles are to be used later for a side agreement between the Santa Clara County Open Space Authority (OSA) and the Santa Clara Valley Habitat Plan (Habitat Plan, or Plan) Implementing Entity, once the Entity is established: 1) The OSA states its willingness to cooperate and partner with the Habitat Plan Implementing Entity to help implement the Plan successfully. The OSA recognizes that acquisition of habitat is consistent with its mission as an open space agency. 2) The OSA is not a permittee under the Habitat Plan. However, the OSA has the option to apply for take authorization under the Plan as a Participating Special Entity. To receive this take authorization, the OSA would follow the procedures outlined in the Habitat Plan, including approval by the Implementing Entity and the Wildlife Agencies. To anticipate this, the estimated impacts of OSA activities on the covered species will be included in the Plan. Any Habitat Plan fees due would be offset by the value of land acquired by the OSA to date and incorporated into the Habitat Plan Reserve System. 3) The OSA has no specific funding commitment towards the Habitat Plan. However, the OSA commits to working with the Habitat Plan Implementing Entity for the duration of the permit to pursue joint land acquisition that is mutually beneficial to each agency on a case - by -case basis and help the Implementing Entity meet its local land acquisition commitments in cooperation with other local agencies, non - profit organizations, and foundations. The OSA intends to leverage its funds to acquire an estimated 5,000 acres for inclusion in the Reserve System, and will make efforts to acquire an additional 2,500 acres for the Reserve System, if feasible. Roles for the OSA in land acquisition may include cooperating on land management issues, brokering a land purchase but not owning it, contributing lands to a Habitat Plan acquisition and owning the land, or owning and managing land acquired by the Implementing Entity in exchange for management funding. The GSA's acquisitions and funding that is ultimately committed to the Habitat Plan are not to be used for mitigation, but are to be allocated instead to species recovery and conservation on an ecosystem -wide basis under the Natural Community Conservation Plan (NCCP) portion of the Habitat Plan. 4) Any lands that the OSA acquires in partnership with the Implementing Entity would meet the requirements of the Habitat Plan including a conservation easement and incorporation into a reserve unit management plan. The conservation easement would require management in perpetuity by the Implementing Entity consistent with the Habitat Plan and allow for compatible public access such as unpaved multi -use trails. The OSA does not expect to be directly reimbursed for the cost of land acquisition or conservation easement dedication for land that it continues to own; the OSA's evaluation of projects on a case -by- case basis allows the OSA to consider the financial benefits the OSA will receive through grant funding under the Plan and funding for management before granting a conservation easement. ,� a Principals of Participation) Approved bythe Board: September%2010 c4V,: ? =��'�rt,.� I Amendment Approved: September8,2011 Item IX.A. Santa Clara County Open Space Authority Principles of Participation in the Santa Clara Valley Habitat Plan 5) The OSA may enroll existing lands into the Reserve System if these lands are consistent with the Reserve System and a conservation easement may be dedicated on the property consistent with the Plan. Lands that the OSA Board dedicated for open space purposes pursuant to Public Resources Code § 35152, and where conservation easements are infeasible, will also be eligible for the Reserve System if these lands can be enhanced to benefit the Habitat Plan covered species. An estimated 1,000 acres of existing land may be suitable for this purpose. The OSA will enter into a specific agreement with the Habitat Plan or Implementing Entity, once established, that ensures enrollment of such lands would allow for construction of multi -use trails for compatible public use. 6) The Implementing Entity will have all management and monitoring responsibility for all Reserve System lands in perpetuity. 7) Participation in the Habitat Plan consistent with this agreement presents a beneficial opportunity for the OSA to receive long -term funding for land management. For any land that the OSA acquires in partnership with the Implementing Entity and that meets the requirements of the Habitat Plan, the OSA has the option of entering into a management agreement with the Implementing Entity to manage the land on behalf of the Implementing Entity. However, the ultimate responsibility for management in perpetuity rests with the Implementing Entity. 8) The OSA would be reimbursed by the Implementing Entity for the costs of management of Reserve System lands consistent with the Habitat Plan. Payments to the OSA would increase according to the amount of land acquired, the per acre cost of managing these lands, and inflation. 9) The OSA has the option of entering into management agreements with the Implementing Entity to manage Reserve System lands not owned by the OSA. Reserve System land not owned by the OSA that the OSA could manage will be evaluated on a case by case basis, with priority given to those lands adjacent to land that the OSA owns where management of adjacent lands benefits OSA lands (e.g., prevention of the spread of invasive plant species). The ultimate responsibility for management on these lands in perpetuity rests with the Implementing Entity. The OSA would be reimbursed by the Implementing Entity for the costs of management consistent with the Habitat Plan. 10) In the unlikely event that the Implementing Entity disbands prior to the end of the permit term, the endowment would be provided to the OSA in proportion to the amount of land owned by the OSA and managed for the Reserve System. .a Principals of Participation I Approved by the Board: September 9, 2010 _;:i I Amendment Approved: September8,2011 Item IX.A.