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HomeMy WebLinkAboutOCSD 08-21 RESOLUTION NO. OCSD 08-21 MAKING CERTAIN FINDINGS RELATING TO LESS THAN SIGNIFICANT ENVIRONMENTAL EFFECTS IDENTIFIED IN THE INITIAL STUDY/MITIGATED NEGATIVE DECLARATION FOR THE COYOTE HILLS GOLF COURSE MANHOLE ACCESS AND ODOR CONTROL PROJECT, CONTRACT NO. FE08-04; ADOPTING THE INITIAL STUDY/MITIGATED NEGATIVE DECLARATION AND MITIGATION MONITORING AND REPORTING PROGRAM FOR THE PROJECT; APPROVING SAID PROJECT; AND AUTHORIZING THE FILING OF A NOTICE OF DETERMINATION FOR SAID PROJECT WHEREAS, the Board of Directors of the Orange County Sanitation District (Sanitation District), ("Board of Directors"), is considering the approval of the Coyote Hills Golf Course Manhole Access and Odor Control Project ("Project"), Contract No. FE08- 04 to provide access to six manholes and install an odor control facility at an additional manhole within the Coyote Hills Golf Course, in the City of Fullerton; and, WHEREAS, the existing manholes require access for routine manhole maintenance and odor control improvements are needed to control odors within the Sanitation District Collection System; and, WHEREAS, because the Sanitation District will be undertaking the Project, the Sanitation District is the lead agency for the Project pursuant to the California Environmental Quality Act of 1970 ("CEQA") (Public Resources Code § 21000 et. seq.), as amended, and the CEQA Guidelines ("CEQA Guidelines") (14 Cal. Code Regs. § 15000 et. seq.); and, WHEREAS, pursuant to the CEQA and the CEQA Guidelines, the Sanitation District staff prepared an Initial Study/Mitigated Negative Declaration to assess the potentially-significant environmental impacts and recommend mitigation measures associated with the Project; and, WHEREAS, in accordance with CEQA Guidelines 15070, Sanitation District staff determined that an Initial Study/Mitigated Negative Declaration resulted in a determination that there were only less than significant impacts associated with the proposed Project if certain mitigation measures were implemented, therefore an Initial Study/Mitigated Negative Declaration was prepared; and, WHEREAS, the Sanitation District has consulted with other public agencies and the general public, giving them an opportunity to comment on the Initial Study/Mitigated Negative Declaration, as required by CEQA; and, WHEREAS, the Sanitation District has objectively evaluated, received, and filed comments from public agencies and persons who reviewed the Initial Study/Mitigated Negative Declaration; and, WHEREAS, the comments and recommendation received on the Initial Study/Mitigated Negative Declaration, either in full or in summary, related to significant environmental concerns raised in the review, have been included in the record of proceeding; and, WHEREAS, Sanitation District staff presented to the Board the Initial Study/Mitigated Negative Declaration for review and consideration prior to the final approval of, and commitment to, the Initial Study/Mitigated Negative Declaration for the Coyote Hills Golf Course Manhole Access and Odor Control Project; and, WHEREAS, Sanitation District has prepared a Mitigation Monitoring and Reporting Program, designed to ensure that the approved mitigation measures are implemented during the Project's design, construction, and operation. NOW, THEREFORE, the Board of Directors hereby resolves, determines and finds that: 1. Changes or alterations have been required in, or incorporated into, the proposed Project, before the proposed Initial Study/Mitigated Negative Declaration was released for public review, which avoid or mitigate significant environmental effects or substantially lessen the significant effects of the Project identified in the Initial Study/Mitigated Negative Declaration; and, 2. There is no substantial evidence that the Project will have a significant impact on the environment; and, 3. The Initial Study/Mitigated Negative Declaration reflects the Sanitation District's independent judgment and analysis; and, 4. The documents and other materials that constitute the record of proceedings upon which the Sanitation District's decision is based are located at the Orange County Sanitation District, 10844 Ellis Avenue, Fountain Valley, California, 92708. The custodian of the record of proceedings is the Sanitation District Clerk of the Board. Project files are located in the Sanitation District Engineering Planning Division. 5. The Board of Directors adopts the Initial Study/Mitigated Negative Declaration; and, 6. The Sanitation District will implement the mitigation measures recommended in the Initial Study/Mitigated Negative Declaration to reduce the significant impacts of the Project to a less than significant level; and, 7. The Board of Directors approves the mitigation measures, and adopts the Mitigation Monitoring and Reporting Program for the Project, attached hereto as "Exhibit A" and incorporated herein by reference, to ensure that all mitigation measures are implemented; and, 8. The Board of Directors hereby approves the Coyote Hills Golf Course Manhole Access and Odor Control Project, Contract No. FE08-04; and, 9. The Board of Directors authorizes and directs the Clerk of the Board to file the Notice of Determination and any other documents in accordance with the requirements of CEQA and the District's CEQA Procedures. PASSED AND ADOPTED at a regular meeting held November 1 2008. Chair ATTEST: Aie"� Clerk of th and APPENDIX A TABLE A 1 Mtigation Nbnitonng and Reporting Program for the Coyote Hit Golf Course Nhnhole Access and Odor Control Project Biological Resources Impact B-1: The proposed Project could impact nesting birds, including the California Gnatcatcher(Polioptila californica)and the Least Bell's Vireo(Vireo bellii pusillus). Mitigation Measure B-1: Vegetation removal and project construction will take place outside the active bird nesting season, including the California Gnatcatcher breeding season (February 1 to August 30), and a qualified biologist will be present during vegetation removal to ensure that the impacts are restricted to the areas identified and that no gnatcatchers are injured or killed during the vegetation removal. Implementation Procedures Actions Responsibility Schedule 1. Ensure vegetation removal is Document date of vegetation removal Sanitation District, CNLM, USFWS During Construction outside the active bird nesting activities for administrative record. season. 2. Retain a qualified biologist to Maintain monitoring notes of the Sanitation District, CNLM, USFWS During Construction monitor vegetation removal. qualified biologist for administrative record. Impact B-2: The proposed Project would permanently impact coastal sage scrub,which is habitat for the federally-threatened, California Gnatcatcher(Polioptila californica), and the federally-endangered, Least Bell's Vireo(Vireo bellii pusillus). Mitigation Measure B-2: The permanent 0.071 acre impact to coastal sage scrub vegetation at Site 2 and the permanent 0.006 acre impact to low lying native vegetation, including black sage(Salvia spp.), coastal goldenbush (Isocoma menziessi), and mule fat(Baccharis salicifolia), at Site 1 (both within the HCP), will be mitigated at a ratio of 5:1, consistent with the USFWS prior approval of the Minor Amendment to the HCP). The permanent 0.017 acre impact to native vegetation, including mule fat(Baccharis salicifolia)and buckwheat(Eriogonum fasciculatum), at Site 3 (outside the HCP)will be mitigated at a ratio of 3:1. Specifically, 0.44 acre of non-native grassland and Italian thistle-dominated habitat will be converted to Venturan-Diegan coastal sage scrub. A Mitigation Plan has been prepared by the Sanitation District and approved by the Center for Natural Lands Management(CNLM)and the U.S. Fish and Wildlife Service (USFWS). The Mitigation Plan includes provisions for the Sanitation District to fund CNLM for the purpose of implementing this mitigation. All work specific to the implementation of this mitigation will be performed by CNLM staff or contractors hired by CNLM. The Mitigation Plan details implementation requirements,which at a minimum include: • Pre-implementation funding: Funding will be provided prior to any ground-clearing by the Sanitation District. Within 30 days of funding the restoration account by the Sanitation District, CNLM will submit a Draft Restoration Plan detailing the location, process, and success criteria for the restoration program. • Year 1: During the first growing season,the 0.44 acre will receive intensive weed control. This will involve a combination of herbicide application and hand or mechanical removal, and at the completion of this phase the site will have exposed soils. It is anticipated that prior to this site preparation, the Sanitation District will begin clearing access to these manholes. All surface soils removed from the access paths will be conserved and later spread onto the enhancement site; if the site is not prepared when the Sanitation District has removed the topsoil from the access paths,then the Sanitation District will stockpile the soils in a location selected by CNLM. Seeds from native shrubs will be collected from elsewhere in the Coyote Hills East Preserve, and these seeds will be imprinted into the exposed soils of the entire 0.44 acre. No irrigation will be used to assist germination. Throughout the growing season,weed control efforts will be applied as necessary. Five permanent transects will be established within the restoration site in a stratified distribution; the plant community will be monitored on these transects annually for a minimum of five years to assess the success of the restoration program. Photodocumentation will also serve to visually monitor the success of the restoration effort; one photo will be captured annually from the leading end of each transect. A progress report will be submitted to USFWS by the end of the first calendar year. • Year 2-5:Weed control will continue as necessary. Erosion control may be needed due to exposure of soils, but the need will diminish with each successive year as native vegetation establishes. Vegetation monitoring transects and photodocumentation points will be samples annually in March and April. A progress report will be submitted to USFWS at the end of each year. Any patches within the restoration area that do not demonstrate growth of native vegetation will receive focused enhancement efforts, including supplemental seeding with seed collected elsewhere on the preserve. • Year 6+: If any funds remain in the restoration account established by the Sanitation District, those funds will be used to continue habitat enhancement activities on the 0.44 acre. This is likely to consist of follow-up weed control. Once the Sanitation District contribution is expended, any weed control or habitat enhancement efforts will be funded through the existing endowment. Implementation Procedures Actions Responsibility Schedule 1. Issue pre-implementation funding Document date and record of funding Sanitation District, CNLM Prior to Commencement of from Sanitation District to CNLM. transfer for administrative record. Construction Activities 2. Draft Restoration Plan submitted Maintain copy of Draft Restoration Sanitation District, CNLM Within 30 Days of Funding the by CNLM. Plan for administrative record. Restoration Account 3. Execute Year 1 restoration Maintain monitoring notes, Sanitation District, CNLM, USFWS End of First Calendar Year activities. photodocumentation, and progress report,for administrative record. 4. Execute Year 2-5 restoration Maintain monitoring notes and Sanitation District, CNLM End of Year 2-5 Calendar Year activities. photodocumentation for administrative record. 5. Execute Year 6+ restoration Maintain record of any continued Sanitation District, CNLM Year 6+ activities. habitat enhancement activities. Impact B-2a: The proposed Project would permanently remove native vegetation from the HCP. Mitigation Measure B-2: (Refer to Mitigation Measure B-2, Biological Resources). Implementation Procedures Actions Responsibility Schedule 1. Refer to Mitigation Measure B-2 Refer to Mitigation Measure B-2 Refer to Mitigation Measure B-2 Refer to Mitigation Measure B-2 Impact 13-3: The proposed Project would conflict with an applicable habitat conservation plan. Mitigation Measure B-3: Prior to initiating proposed Project activities within the HCP area,the HCP may be amended as agreed to with the U.S. Fish and Wildlife Service and CNLM so that the proposed Project will not conflict with the HCP. Implementation Procedures Actions Responsibility Schedule 1. Acquire agreement from USFWS Retain agreement from USFWS for Sanitation District, USFWS, CNLM Prior to Commencement of and CNLM for activities within the administrative record. Construction Activities HCP area. Hazards and Hazardous Materials Impact H-1: The proposed Project would include transport, storage, and use of odor control compounds that could cause a spill or accidental release hazard. Mitigation Measure H-1: Transportation, storage and use of hazardous materials will comply with state and federal regulations and storage and dispensing permits will be obtained as necessary Mitigation Measure H-2: The Sanitation District will follow procedures to ensure proper handling and storage of hazardous materials and reduce potential for spills impacting the public or the environment. At a minimum, the procedures will include: • Obtain a permit to store hazardous material from the local fire department; • Provide notification to the Orange County Health Care Agency of the odor control facility; • Equip chemical delivery trucks with spill cleanup equipment to contain and clean up any spills; • Provide chemical storage tanks with adequate secondary containment; • Modify the Sanitation District's Spill Prevention Containment and Countermeasure(SPCC) Plan to include the odor control facility or ensure that transport contractors have adequate SPCC Plans in place covering the odor control facility. The SPCC Plan will cover chemical transfer activities (Including DOT requirements), public notification and placarding requirements, secondary containment, emergency spill response actions, routine site access control, and site management and maintenance procedures. The contractor's SPCC Plan would require approval by the Sanitation District's Safety Division. Mitigation Measure H-3: The Sanitation District shall require that all personnel working with hazardous chemicals have health and safety training. This is a legal OSHA requirement under the Worker Right to Know regulations in the Federal Code of Regulations,Title 29. The training shall include, at a minimum, the proper use of safety equipment, hazard identification, and proper handling and disposal of spilled hazardous materials. Mitigation Measure H-4: Access to the odor control facility will be controlled to allow access only to authorized personnel. Implementation Procedures Actions Responsibility Schedule 1. Comply with applicable legal Maintain record of compliance, Sanitation District Prior to Operation of Odor Control requirements and regulations and including permits,for administrative Facility acquire appropriate permits. record. 2. Ensure SPCC Plan in place Retain copy of SPCC Plan applicable Sanitation District Prior to Operation of Odor Control applicable to Odor Control Facility. to Odor Control Facility for Facility administrative record. 3. Ensure that Odor Control Facility Document that Odor Control Facility Sanitation District Prior to Operation of Odor Control access is controlled to only allow access is controlled to only allow Facility access for authorized personnel. access for authorized personnel for administrative record. Hydrology and Water Quality Impact W-1: The proposed Project could violate water quality standards or waste discharge requirements during construction. Mitigation Measure W-1: Prior to the initiation of ground-disturbing activities,the Sanitation District(or its designee)will obtain approval from the State Water Resources Control Board (SWRCB)under the National Pollutant Discharge Elimination System (NPDES)General Permit(Water Quality Order 99-08-DWQ) for Discharges of Storm Water Associated with Construction Activity(General Permit). This includes submitting a Notice of Intent(NOI)to the SWRCB and developing and implementing a Storm Water Pollution Prevention Plan (SWPPP). The SWPPP will identify potential sources of sediment and other pollutants that could affect the quality of the stormwater discharge, and will specify best management practices (BMPs)to prevent or minimize the introduction of sediment and pollutants into surface waters from the construction site. BMP methods of erosion and sediment control could include straw bales, silt fences, and other control techniques. Monitoring and maintenance requirements shall be specified in the SWPPP. Implementation Procedures Actions Responsibility Schedule 1. Submit NOI to SWRCB and Maintain record of NOI and SWPPP Sanitation District Prior to Commencement of develop and implement a SWPPP for administrative record. Construction Activities Impact W-2: The proposed Project could violate water quality standards or waste discharge requirements during operations. Mitigation Measure H-2: (Refer to Mitigation Measure H-2, Hazards and Hazardous Materials). Mitigation Measure H-3: (Refer to Mitigation Measure H-3, Hazards and Hazardous Materials). Implementation Procedures Actions Responsibility Schedule 1. Refer to Mitigation Measure's H-2 Refer to Mitigation Measure's H-2 and Refer to Mitigation Measure's H-2 and Refer to Mitigation Measure's H-2 and and H-3 H-3 H-3 H-3 Land Use and Planning Impact L-1: The proposed Project would conflict with an applicable habitat conservation plan. Mitigation Measure 13-3: (Refer to Mitigation Measure B-3, Biological Resources). Implementation Procedures Actions Responsibility Schedule 1. Refer to Mitigation Measure B-3. Refer to Mitigation Measure B-3. Refer to Mitigation Measure B-3. Refer to Mitigation Measure B-3. �r o c.s u ORANGE COUNTY SANITATION DISTRICT . 59 -- CONTRACT SERVICES AGREEMENT 1 FOR ENVIRONMENTAL SERVICES © a COYOTE HILLS HABITAT RESTORATION PRI§ ' THIS CONTRACT SERVICES AGREEMENT (herein 'Agreement'), is made and entered into this 6+4 day of January, 2009, by and between the ORANGE COUNTY SANITATION DISTRICT, a municipal corporation, (herein 'District') and CENTER FOR NATURAL LANDS MANAGEMENT, (herein `Consultant'). The parties hereto agree as follows: RECITALS 1. Consultant is a nonprofit organization dedicated to the preservation of habitat through effective long-term stewardship, and is the grantee of a conservation easement recorded August 13, 2004 as document number 2004000737488 in Official Records, Orange County over certain conserved habitat known as the Coyote Hills Preserve ("Preserve") 2. District intends to implement the "Orange County Sanitation District (OCSD) Coyote Hill East Manhole Access and Odor Control Facility Project" ("Project") with and adjacent to the Preserve, which the United States Fish and Wildlife Service ("FWS") in part requires that District offset impacts to coastal sage scrub (CSS) by restoring ~.436 acres of CSS on the Preserve. 3. FWS an agency within the United States Department of the Interior, has jurisdiction over the conservation, protection, restoration, and management of fish, wildlife, native plants, and the habitat necessary for biologically sustainable populations of these species within the United States pursuant to the Endangered Species Act, 16 U.S.C. §§1531, et seq. ("ESA"), the Fish and Wildlife Coordination Act, 16 U.S.C. §§661-666c, the Fish and Wildlife Act of 1956, 16 U.S.C. §§742(f), et seq., and other provisions of federal law. 4. FWS approved a minor amendment on October 27, 2006 (FWS-OR- 816.10) to the 1993 "Habitat Conservation Plan to Mitigate Impacts to the Coastal California Gnatcatcher ["CAGN"] and Cactus Wren Present on the Coyote Hills East Project Site, City of Fullerton, Orange County California" ("HCP") to address Project- related effects to CAGNs and least Bell's vireo, an endangered song bird that occurs in riparian areas the Preserve. Further, FWS provided District-requested technical assistance to District by letter (FWS-OR-08B0085-08TA0918) regarding potential effects to federally listed species and their habitat. SERVICES AGREEMENT Page 1 of 18 5. District requires the services of a qualified consultant to (1) manage a restoration account funded by a non-charitable cash contribution by District to Consultant, (2) perform construction-phase monitoring to ensure that there are no unintended impacts to federally listed species or their habitats by District, (3) prepare a habitat restoration plan acceptable to FWS, and (4) perform certain restoration activities, recognizing that if the restoration success criteria are not achieved as determined by FWS in five (5) years that additional District funding of Consultant may be warranted. 6. Consultant has the necessary expertise to perform the Services described in this Agreement and desires to accept such engagement upon and subject to the terms and conditions of this Agreement. NOW THEREFORE, in consideration of the promises and mutual covenants contained herein, District and Consultant hereby agree as follows: TERMS AND CONDITIONS 1.0 SERVICES OF CONSULTANT 1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, the Consultant shall provide those services specified in the "Scope of Services" attached hereto as Exhibit "A" and incorporated herein by this reference, which services may be referred to herein as the "Services" or Center for Natural Lands Management 'Work" hereunder. As a material inducement to the District entering into this Agreement, Consultant represents and warrants that Consultant is a provider of first class work and Services and Consultant is experienced in performing the Work and Services contemplated herein and, in light of such-status and experience, Consultant covenants that it shall follow the highest professional standards in performing the Work and Services required hereunder and that all materials will be of good quality, fit for the purpose intended. For purposes of this Agreement, the phrase `highest professional standards' shall mean those standards of practice recognized by one or more first-class firms performing similar Work under similar circumstances. Without in any way modifying the Scope of Services, the Parties specially note the following deal points therein: a. Consistent with the section of the of the Scope of Services entitled "General Description", the compensation described in Section 2.1 below will be deposited by Consultant in a restoration account. b. Consistent with the section of the Scope of Services entitled "Purpose", District compensation deposited in the restoration account pursuant to Section 2.1 shall be expended only for the SERVICES AGREEMENT Page 2 of 18 purposes described in Exhibit "B" (entitled "Section 8 - Initial & Capital Tasks and Costs"), attached hereto and incorporated herein by this reference (hereinafter"Cost Proposal"). C. Consistent with the section of the Scope of Services entitled "General Project Description", long-term maintenance will not be funded from the District compensation deposited in the restoration account pursuant to Section 2.1, but shall be funded through the existing endowment established by UNOCAL and managed by Consultant. d. Consistent with the section of the Scope of Services entitled "Pre- implementation of Restoration", the District will provide funding prior to ground-clearing activities. However, the funds may not be drawn by Consultant from the restoration account until after the District completes ground-clearing. 1.2 Compliance with Law. All Services rendered hereunder shall be provided in accordance with all ordinances, resolutions, statutes, rules, and regulations of the District and any Federal, State or local governmental agency having jurisdiction in effect at the time service is rendered. 1.3 Familiarity with Work. By executing this Contract, Consultant warrants that Consultant (a) has thoroughly investigated and considered the Scope of Services to be performed, (b) has carefully considered how the Services should be performed, and (c) fully understands the facilities, difficulties and restrictions attending performance of the Services under this Agreement. If the Services involve work upon any site, Consultant warrants that Consultant has or will investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of Services hereunder. Should the Consultant discover any latent or unknown conditions, which will materially affect the performance of the Services hereunder, Consultant shall immediately inform the District of such fact and shall not proceed except at Consultant's risk until written instructions are received from the Contract Officer. 1.4 Care of Work. The Consultant shall adopt reasonable methods during the life of the Agreement to furnish continuous protection to the Work, and the equipment, materials, papers, documents, plans, studies and/or other components thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until completion of the Work by District, except such losses or damages as may be caused by District's own negligence. 1.5 [Reserved.] 1.6 [Reserved.] 2.0 COMPENSATION SERVICES AGREEMENT Page 3 of 18 2.1 Contract Sum. For the Services rendered pursuant to this Agreement, the Consultant shall be compensated in accordance with the Cost Proposal in an amount not to exceed Thirty-Seven Thousand, Seven Hundred, Fifty-Three Dollars, Seventy-Three Cents ($37,753.73) (herein "Contract Sum") for the first five (5) years under this Agreement. The Contract Sum shall include the attendance of Consultant at all project meetings reasonably deemed necessary by the District, but not to exceed three (3) project meetings at times and places of mutual convenience to District and Consultant unless Consultant is compensated for time and materials for additional meeting. The Parties recognize that if at the end of the five year maintenance and monitoring period, success criteria have not been achieved additional funds will be provided by District to Consultant to implement necessary remedial measures to satisfy FWS in an amount not to exceed $62,000 (unless a higher amount is approved by the District Board). 2.2 [Reserved.] 3.0 PERFORMANCE SCHEDULE 3.1 Time of Essence. Time is of the essence in the performance of this Agreement. 3.2 Schedule of Performance. Consultant shall commence the Services pursuant to this Agreement upon receipt of the Contract Sum, or if agreed to otherwise by Consultant to commence Services prior to receipt of the Contract Sum for convenience of District, then by a written notice to proceed. Consultant shall perform all Services within the time period(s) established in Exhibit "A". 3.3 [Reserved.] 3.4 Term. Unless earlier terminated in accordance with Section 7.8 of this Agreement, this Agreement shall continue in full force and effect until completion of the Services. 4.0 COORDINATION OF WORK 4.1 Representative of Consultant. The following principals of Consultant are hereby designated as being the principals and representatives of Consultant authorized to act in its behalf with respect to the Work specified herein and make all decisions in connection therewith: Kim Klementowski and Sasha Auer. 4.2 Contract Officer. The Contract Officer shall be such person as may be designated by the General Manager of District. It shall be the Consultant's responsibility to assure that the Contract Officer is kept informed of the progress during the construction monitoring phase of the performance of the Services and the Consultant shall refer any decisions which must be made by District to the Contract SERVICES AGREEMENT Page 4 of 18 Officer. Unless otherwise specified herein, any approval of District required hereunder shall mean the approval of the Contract Officer. The Contract Officer shall have authority to sign all documents on behalf of the District required hereunder to carry out the terms of this Agreement. 4.3 Prohibition Against Subcontracting or Assignment. The experience, knowledge, capability and reputation of Consultant, its principals and employees were a substantial inducement for the District to enter into this Agreement. Therefore, Consultant shall not contract with any other entity to perform in whole or in part the Services required hereunder without the express written approval of the District. In addition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of District 4.4 Independent Contractor. Neither the District nor any of its employees shall have any control over the manner, mode or means by which Consultant, its agents or employees, perform the Services required herein. District shall have no voice in the selection, discharge, supervision or control of Consultant's employees, servants, representatives or agents, or in fixing their number, compensation or hours of service. Consultant shall perform all Services required herein as an independent contractor of District and shall remain at all times as to District a wholly independent contractor with only such obligations as are consistent with that role. Consultant shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of District. District shall not in any way or for any purpose become or be deemed to be a partner of Consultant in its business or otherwise or a joint venturer or a member of any joint enterprise with Consultant. 5.0 INSURANCE, INDEMNIFICATION AND BONDS 5.1 Insurance. The Consultant shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to District, during the entire term of this Agreement including any extension thereof, the following policies of insurance: (a) Commercial General Liability Insurance. A policy of commercial general liability insurance written on a per occurrence basis with a combined single limit of a least $1,000,000 bodily injury and property damage including coverages for contractual liability, personal injury, independent contractors, broad form property damage, products and completed operations. The Commercial General Liability Policy shall name the District as an additional insured in accordance with standard ISO additional insured endorsement form CG2010(1185) or equivalent language. The Commercial General Liability Insurance shall name the District, its officers, employees and agents as additional insured. SERVICES AGREEMENT Page 5 of 18 (b) Worker's Compensation Insurance. A policy of worker's compensation insurance in an amount which fully complies with the statutory requirements of the State of California and which includes $1,000,000 employer's liability. (c) Business Automobile Insurance. A policy of business automobile liability insurance written on a per occurrence basis with a single limit liability in the amount of$1,000,000 bodily injury and property damage. Said policy shall include coverage for owned, non-owned, leased and hired cars. All of the above policies of insurance shall be primary insurance. (Reference Section 5.4 regarding sufficiency.) The insurer shall waive all rights of subrogation and contribution it may have against the District, its officers, employees and agents, and their respective insurers. In the event any of said policies of insurance are canceled, the Consultant shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Section 5.1 to the Contract Officer. No Work or Services under this Agreement shall commence until the Consultant has provided the District with Certificates of Insurance, endorsements or appropriate insurance binders evidencing the above insurance coverages and said Certificates of Insurance, endorsements, or binders are approved by the District. The Consultant agrees that the provisions of this Section 5.1 shall not be construed as limiting in any way the extent to which the Consultant may be held responsible for the payment of damages to any persons or property resulting from the Consultant's activities or the activities of any person or person for which the Consultant is otherwise responsible. In the event the Consultant subcontracts any portion of the Center for Natural Lands Management Work in compliance with Section 4.3 of this Agreement the contract between the Consultant and such subcontractor shall require the subcontractor to maintain the same polices of insurance that the Consultant is required to maintain pursuant to this Section. 5.2 Indemnification. Consultant agrees to indemnify the District, its officers, agents and employees against, and will hold and save them and each of them harmless from, any and all actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities, (herein 'claims or liabilities') that may be asserted or claimed by any person, firm or entity arising out of or in connection with the negligent performance of the Work, operations or activities of Consultant, its agents, employees, subcontractors, or invitees, provided for herein, or arising from the negligent acts or omissions of Consultant hereunder, or arising from Consultant's negligent performance of or failure to perform any term, provision, covenant or condition of this Agreement, but excluding such claims or liabilities arising from the sole negligence or willful misconduct of the District, its officers, agents or employees, who are directly responsible to the District, and in connection therewith: SERVICES AGREEMENT Page 6 of 18 (a) Consultant will defend any action or actions filed in connection with any of said claims or liabilities and will pay all costs and expenses, including legal costs and attorneys' fees incurred in connection therewith; (b) Consultant will promptly pay any judgment rendered against the District, its officers, agents or employees for any such claims or liabilities arising out of or in connection with the negligent performance of or failure to perform such Work, operations or activities of Consultant hereunder; and Consultant agrees to save and hold the District, its officers, agents, and employees harmless therefrom; (c) In the event the District, its officers, agents or employees is made a party to any action or proceeding filed or prosecuted against Consultant for such damages or other claims arising out of or in connection with the negligent performance of or failure to perform the Work, operation or activities of Consultant hereunder, Consultant agrees to pay to the District, its officers, agents or employees, any and all costs and expenses incurred by the District, its officers, agents or employees in such action or proceeding, including but not limited to, legal costs and attorneys' fees. 5.3 [Reserved.] 5.4 Sufficiency of Insurer or Surety. Insurance required by this Agreement shall be satisfactory only if issued by companies qualified to do business in California, rated 'A' or better in the most recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register, unless such requirements are waived by the General Manager or designee of the District due to unique circumstances. 6.0 REPORTS AND RECORDS 6.1 Reports. Consultant shall prepare and submit by December 31 of each year of this Agreement to the Contract Officer and FWS annual reports concerning the performance of the Services required by this Agreement. Consultant hereby acknowledges that the District is greatly concerned about the cost of Work and Services to be performed pursuant to this Agreement. For this reason, Consultant agrees that if Consultant becomes aware of any facts, circumstances, techniques, or events that may or will materially increase the cost of the Work or Services contemplated herein, Consultant shall promptly notify the Contract Officer of said fact, circumstance, technique or event and the estimated increased cost related thereto. 6.2 Records. Consultant shall keep such books and records as shall be necessary to perform the Services required by this Agreement and enable the Contract Officer to evaluate the performance of such Services. The Contract Officer shall have full and free access to such books and records at all times during normal business hours of District, including the right to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period of SERVICES AGREEMENT Page 7 of 18 three (3) years following completion of the Services hereunder, and the District shall have access to such records in the event any audit is required. 6.3 [Reserved.] 6.4 [Reserved.]. 7.0 ENFORCEMENT OF AGREEMENT 7.1 California Law. This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in such county, and Consultant covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 7.2 Disputes. In the event of any dispute arising under this Agreement, the injured party shall notify the injuring party in writing of its contentions by submitting a claim therefor. The injured party shall continue performing its obligations hereunder so long as the injuring party commences to cure such default within ten (10) days of service of such notice and completes the cure of such default within forty-five (45) days after service of the notice, or such longer period as may be permitted by the injured party; provided that if the default is an immediate danger to the health, safety and general welfare, such immediate action may be necessary. Compliance with the provisions of this Section shall be a condition precedent to termination of this Agreement for cause and to any legal action, and such compliance shall not be a waiver of any parry's right to take legal action in the event that the dispute is not cured, provided that nothing herein shall limit District's or the Consultant's right to terminate this Agreement without cause pursuant to Section 7.8. 7.3 Retention of Funds. Consultant hereby authorizes District to deduct from any amount payable to Consultant (whether or not arising out of this Agreement) (i) any amounts the payment of which may be in dispute hereunder or which are necessary to compensate District for any losses, costs, liabilities, or damages suffered by District, and (ii) all amounts for which District may be liable to third parties, by reason of Consultant's acts or omissions in performing or failing to perform Consultant's obligation under this Agreement. In the event that any claim is made by a third party, the amount or validity of which is disputed by Consultant, or any indebtedness shall exist which shall appear to be the basis for a claim of lien, District may withhold from any payment due, without liability for interest because of such withholding, an amount sufficient to cover such claim. The failure of District to exercise such right to deduct or to withhold shall not, however, affect the obligations of the Consultant to insure, indemnify, and protect District as elsewhere provided herein. SERVICES AGREEMENT Page 8 of 18 7.4 Waiver. No delay or omission in the exercise of any right or remedy by a nondefaulting party on any default shall impair such right or remedy or be construed as a waiver. A party's consent to or approval of any act by the other party requiring the party's consent or approval shall not be deemed to waive or render unnecessary the other party's consent to or approval of any subsequent act. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. 7.5 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 7.6 Legal Action. In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. 7.7 [Reserved.] 7.8 Termination Prior to Expiration Of Term. This Section shall govem any termination of this Agreement except as specifically provided in the following Section for termination for cause. The District, with the written authorization of FWS, reserves the right to terminate this Agreement at any time, with or without cause, upon thirty (30) days' written notice to Consultant, except that where termination is due to the fault of the Consultant, the period of notice may be such shorter time as may be determined by the Contract Officer. In addition, the Consultant reserves the right to terminate this Agreement at any time upon, with or without cause, upon sixty (60) days' written notice to District, except that where termination is due to the fault of the District, the period of notice may be such shorter time as the Consultant may determine. Upon receipt of any notice of termination, Consultant shall immediately cease all Services hereunder except such as may be specifically approved by the Contract Officer. Except where the Consultant has initiated termination, the Consultant shall be entitled to compensation for all rendered prior to the effective date of the notice of termination and for any Services authorized by the Contract Officer thereafter or such as may be approved by the Contract Officer, except as provided in Section 7.3. In the event the Consultant has initiated termination, the Consultant shall be entitled to compensation only for the reasonable value of the work product actually produced hereunder. In the event of termination without cause pursuant to this Section, the terminating party need not provide the non-terminating party with the opportunity to cure pursuant to Section 7.2. SERVICES AGREEMENT Page 9 of 18 7.9 Termination for Default of Consultant. if termination is due to the failure of the Consultant to fulfill its obligations under this Agreement, District may, after compliance with the provisions of Section 7.2, take over the Work and prosecute the same to completion by contract or otherwise, and the Consultant shall be liable to the extent that the total cost for completion of the Services required hereunder exceeds the compensation herein stipulated (provided that the District shall use reasonable efforts to mitigate such damages), and District may withhold any payments to the Consultant for the purpose of set-off or partial payment of the amounts owed the District as previously stated. 7.10 Attorneys' Fees. If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorney's fees. Attorney's fees shall include attorney's fees on any appeal, and in addition a party entitled to attorney's fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. 8.0 DISTRICT OFFICERS AND EMPLOYEES: NON-DISCRIMINATION 8.1 Non-liability of District Officers and Employees. No officer or employee of the District shall be personally liable to the Consultant, or any successor in interest, in the event of any default or breach by the District or for any amount which may become due to the Consultant or to its successor, or for breach of any obligation of the terms of this Agreement. 8.2 Conflict of Interest. No officer or employee of the District shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement which effects his financial interest or the financial interest of any corporation, partnership or association in which he is, directly or indirectly, interested, in violation of any State statute or regulation. The Consultant warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement. 8.3 Covenant Against Discrimination. Consultant covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the performance of this Agreement. Consultant shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, marital status, national origin, or ancestry. SERVICES AGREEMENT Page 10 of 18 9.0 MISCELLANEOUS PROVISIONS 9.1 Notice. All notices, demands, requests, consents, approvals, or communications from one party to another shall be personally delivered or sent by facsimile to the persons set forth below and shall be deemed given five (5) days after deposit in the United States mail, certified and postage prepaid, return receipt requested, and addressed as follows, or at such other address as any Party may from time to time specify to the other parties in writing: To District: Orange County Sanitation District 10844 Ellis Avenue Fountain Valley, CA 92708-7018 Attention: General Manager Telephone: To Consultant: Center for Natural Lands Management, Inc. 215 W. Ash Street Fallbrook, CA 92028-2904 Attention: Executive Director Telephone: (760) 731-7790 With a copy to: U. S. Fish and Wildlife Service Carlsbad Fish and Wildlife Service Office 6010 Hidden Valley Road Carlsbad, California 92011 Attention: Field Supervisor Telephone: (760) 431-5902 The parties agree to accept facsimile signed documents and agree to rely upon such documents as if they bore original signatures. Each party agrees to provide to the other parties, within seventy-two (72) hours after transmission of such a facsimile, the original documents that bear the original signatures. Any notice, demand, request, document, consent, approval, or communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by prepaid, first-class mail, in the case of the and in the case of the Consultant, to the person at the address designated on the execution page of this Agreement. Either party may change its address by notifying the other party of the change of address in writing. Notice shall be deemed communicated at the time personally delivered or in seventy-two (72) hours from the time of mailing if mailed as provided in this Section. 9.2 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. SERVICES AGREEMENT Page 11 of 18 9.3 Integration; Amendment. It is understood that there are no oral agreements between the parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the parties, and none shall be used to interpret this Agreement. This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing. 9.4 Severability. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that its invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless. 9.5 Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. (Signatures on the following page.) SERVICES AGREEMENT Page 12 of 18 IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date first written above. ORANGE COUNTY SANITATION DISTRICT ATTEST: F�f Clerk of Board GeneralA anager APPROVED AS TO FORM /l 11 BRADLEY R. HOGIN GENERAL COUNSEL CENTER FOR NATURAL LANDS MANAGEMENT- Revi ed and approved j AVID ' . UNKIER Da M nroe LExecutive Oiirector General C unsel SERVICES AGREEMENT Page 13 of 18 EXHIBIT "A" SCOPE OF SERVICES 1. General Description District is required to coordinate with the Center for Natural Lands Management regarding all impacts and restoration activities for proposed District sanitary sewer maintenance activates with the Coyote Hills Preserve. In addition, District requires the services of the Center for Natural Lands Management, a qualified consultant, to (1) manage a restoration account funded by a non-charitable cash contribution by District to Consultant, (2) perform construction monitoring to ensure that there are no unintended impacts to federally listed species or their habitats, (3) prepare a habitat restoration plan, and (4) perform certain restoration activities. 2. Purpose District owns and operates an easement "to lay, construct, maintain, reconstruct, use and operate a sewer pipeline" including access rights over portions of the Coyote Hills Preserve, a conserved habitat encumbered by a conservation easement held by the Center for Natural Lands Management with third-party enforcement rights held by the United States Fish and Wildlife Service. District desires to access various manholes located within the sanitary sewer and conservation easements for maintenance and, and to do so, intends to implement the "Orange County Sanitation District (OCSD) Coyote Hill East Manhole Access and Odor Control Facility Project" ("Project") with and adjacent to the Preserve, which in part requires that District offset impacts to coastal sage scrub (CSS) by restoring —.436 acres of CSS on the Preserve. 3. General Proiect Description District will contribute a non-charitable cash amount of$37,753.73 to an account managed by the Center for Natural Lands Management. This restoration account, minus a contingency amount, will be expended in five years strictly for those activities describe in Exhibit "B". After five years, any contingency funds remaining will be applied to follow-up habitat enhancement work, such as supplemental weed removal or sowing additional native plants in any patches where responses are suboptimal. After all funds from the original District contribution are expended and FWS has agreed that success criteria have been achieved, the long-term maintenance of the —.436 acres will be funded through the existing endowment established by Unocal (now Chevron) and managed by the Center for Natural Lands Management. All work will be performed by Center for Natural Lands Management staff. SERVICES AGREEMENT Page 14 of 18 4. Pre-implementation of Restoration District will fund the restoration account to be managed by Consultant with the Contract Sum prior to the commencement of any ground-clearing activities within or adjacent to the Coyote Hills Preserve. 5. Schedule of Performance The Parties project that Services will be completed in approximately five (5) years, unless success criteria are not achieved Services will be considered completed when FWS determines in coordination with CNLM that success criteria have been achieved. Success criteria will be determined through consultation with FWS and outlined in the Draft Restoration Proposal per Exhibit B. SERVICES AGREEMENT Page 15 of 18 EXHIBIT "B" COST PROPOSAL Orange County Sanitation District Mitigation Plan for the Coyote East Hills Preserve Location: Coyote Hills East Preserve, Fullerton, Orange County Area: 0.44 acres Duration: Five Years (with possible extension if restoration success criteria are not achieved with five years) Purpose: Orange County Sanitation District (OCSD) requires permanent access to manholes on a sewer line easement that crosses through coastal California gnatcatcher and least Bell's vireo habitat. A portion (0.077 acres) of the effected habitat falls within an area protected by a conservation easement (CE) called the Coyote Hills East Preserve (Preserve). An additional 0.017 acres of effected habitat is not protected by a CE. OCSD proposes to create permanent access paths to those manholes, and the U.S. Fish and Wildlife Service (USFWS) requires mitigation of permanent impacts within the Preserve at a ratio of 5:1 and those impacts outside of the preserve at a ratio of 3:1. This proposal introduces a tentative plan to convert 0.44 acres of non-native grassland and Italian thistle-dominated habitats to Venturan-Diegan coastal sage scrub. General Project Description: OCSD will contribute a cash amount of$37,753.73 to an account managed by the Center for Natural Lands Management (CNLM). This account, minus a contingency amount, will be expended in five years strictly for the project proposed here. After five years, any contingency funds remaining will be applied to follow-up enhancement work on the 0.44 acres, such as supplemental weed removal or sowing additional native plants in any patches where responses are suboptimal. After all funds from the original OCSD contribution are expended and FWS has agreed that success criteria are achieved, the long-term maintenance of the 0.44 acres will be funded through the existing endowment established by UNOCAL and managed by CNLM. All work will be performed by CNLM staff. Construction monitoring: A Biological Monitor will be present during vegetation removal to ensure that the impacts are restricted to the areas identified and that no gnatcatchers are injured or killed during the vegetation removal. CNLM will perform the duties of the Biological Monitor and will be on site the entire duration the Orange County Sanitation District or its subcontracters are removing vegetation. A monitoring report that documents the date of vegetation removal and the observations of the Biological Monitor will be submitted to the USFWS and OCSD. (Budget: $1987.60) SERVICES AGREEMENT Page 16 of 18 Pre-implementation of restoration: Funding will be provided prior to any ground-clearing by OCSD. Within 30 days of funding the restoration account by OCSD, CNLM will submit a Draft Restoration Plan detailing the location, process, and success criteria for the restoration program to the USFWS. (Budget: $596.28) Year 1: During the first growing season after all agreements for this restoration plan are finalized, the 0.44 acres will be treated for weeds. This will involve a combination of herbicide application and hand or mechanical removal. At the completion of this phase the site will have exposed soils. It is anticipated that prior to this site preparation, OCSD will begin clearing the access paths to the manholes. All surface soils removed from the access paths will be conserved and later spread onto the enhancement site; if the site is not prepared when OCSD has removed the topsoil from the access paths, then OCSD will stockpile the soils in a location selected by CNLM. Seeds from native shrubs will be collected from elsewhere in the Coyote Hills East Preserve, and these seeds will be sowed by hand and raked into the exposed soils of the entire 0.44 acres. . Throughout the growing season, weed control efforts will be applied as necessary. Five permanent transects will be established within the restoration site in a stratified distribution. The plant community will be monitored on these transects annually for a minimum of five years to assess the success of the restoration program. Photodocumentation will also serve to visually monitor the success of the restoration effort; one photo will be captured annually from the end of each transect. A progress report will be submitted to USFWS by the end of the first calendar year. (Budget: $7,551.33) Year 2-5: Weed control will continue as necessary. Erosion control may be needed due to exposure of soils, but it is intended that the need will diminish with each successive year as native vegetation establishes. Vegetation monitoring transects and photodocumentation points will be sampled once annually in March or April. A progress report will be submitted to OCSD and FWS at the end of each calendar year (December 31). Any patches within the restoration area that do not demonstrate growth of native vegetation will receive focused enhancement efforts, including supplemental seeding with seeds collected elsewhere on the preserve. If, at the end of the five year maintenance and monitoring period, success criteria have not been achieved, additional funds will be submitted to CNLM by OSCD. The remedial measures and the funding amount to implement these remedial measures will be determined by CNLM in coordination with OCSD. Monitoring and maintenance will continue until all success criteria have been achieved and CNLM receives confirmation (i.e., either in letter or email format) from FWS that success criteria have been achieved. (Budget: approximately$4,385 per year, totaling $17,539.48 over 4 years) Year 6+: Any funds remaining in the restoration account established by OCSD will be used to continue habitat enhancement activities on the 0.44 acres. This is likely to consist primarily of follow-up weed control. Once the OCSD contribution is expended, any weed control or habitat enhancement efforts will be funded through the existing endowment. (Contingency budget: $2767.87) SERVICES AGREEMENT Page 17 of 18 The Center for Natural Lands Management charges a 24% administrative fee to support oversight, fund management, accounting, and employee benefits and payments. (Budget: $7307.17) SERVICES AGREEMENT Page 18 of 18