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HomeMy WebLinkAboutItem No. 06 CFA Mitigation Lake Elsinore Outlet ChannelCity Council Agenda Report City of Lake Elsinore 130 South Main Street Lake Elsinore, CA 92530 www.lake-elsinore.org File Number: ID# 19-681 Agenda Date: 7/28/2020 Status: Approval FinalVersion: 1 File Type: Council Consent Calendar In Control: City Council / Successor Agency Agenda Number: 6) Cooperative Funding Agreement - Mitigation Monitoring, Regional Agricultural Pipeline Conversion Project - Lake Elsinore Outlet Channel Authorize the City Manager to execute the Cooperative Funding Agreement for Mitigation Monitoring between Elsinore Valley Municipal Water District, Riverside County Flood Control and Water Conservation District, and the City of Lake Elsinore in substantially the form attached and in such final form as approved by the City Attorney. The City ’s cost share not to exceed the lesser of one -third of the cost of monitoring or $45,000.00. Page 1 City of Lake Elsinore Printed on 7/23/2020 REPORT TO CITY COUNCIL To: Honorable Mayor and Members of the City Council From: Grant Yates, City Manager Prepared By: Rita Thompson, Senior Engineering Technician Date: July 28, 2020 SUBJECT: Cooperative Funding Agreement – Mitigation Monitoring, Regional Agricultural Pipeline Conversion Project – Lake Elsinore Outlet Channel Recommendation Authorize the City Manager to execute the Cooperative Funding Agreement for Mitigation Monitoring between Elsinore Valley Municipal Water District, Riverside County Flood Control and Water Conservation District, and the City of Lake Elsinore in substantially the form attached and in such final form as approved by the City Attorney. The City’s cost share not to exceed the lesser of one-third of the cost of monitoring or $45,000.00. Background To comply with the 2003 Comprehensive Water Management Agreement between the City and EVMWD, EVMWD obtained permission from Riverside County Flood Control and Water Conservation District (RCFCWCD) to use the Outlet Channel to transport reclaimed water to the Lake. The resultant constant supply of water has caused vegetation to flourish within the channel bottom; the vegetation obstructs the water flow and consumes the reclaimed water, reducing what actually reaches the Lake. The vegetation has also created maintenance issues for RCFCWCD, the agency responsible for maintenance of the channel. After discovering an old agricultural pipeline in the channel that could transport the reclaimed water in 2016, EVMWD, RCFCW CD, and the City entered into a cooperative agreement to fund a project to design, rehabilitate, construct and provide mitigation monitoring for the pipe line. Construction of the pipeline was completed, and it was put into use in 2019. (Exhibit A) Discussion Environmental (CEQA) requirements for the project required that a Mitigation Monitoring and Reporting Program (MMRP) be prepared and implemented. The MMRP requires downstream (adjacent to the Lake) riparian monitoring and habitat enhancement for a period of five years. (Exhibit B) To accomplish these compliance activities, the subject Cooperative Funding Agreement is proposed. It has been reviewed by staff and the City Attorney and found acceptable in content and form. The proceeds from the Agreement will fund a Professional Services Agreement with the project environmental consultant, Helix Environmental Planning. Cooperative Funding Agreement – Mitigation Monitoring Regional Agricultural Pipeline Conversion Project – Lake Elsinore Outlet Channel July 28, 2020 Page 2 Fiscal Impact The City’s shared cost of not to exceed $45,000.00 for this project will be funded out of the Operating Budget for Lake Water Maintenance. Exhibits: A – Site Plan B – Mitigation Monitoring and Reporting Program C – Cooperative Agreement 15 15 REGIONAL AGRICULTURAL PIPELINE CONVERSION ENG W.O. #75926SITE PLAN LEGEND: CIPP LINING NOTES: G-4 4 15 REGIONAL AGRICULTURAL PIPELINE CONVERSION ENG W.O. #75926WASSON SILL DIVERSION STRUCTURE MODIFICATIONS (DP-002) GRAPHIC SCALE C-1 5 NOTES: Appendix D Mitigation Monitoring and Reporting Program MITIGATION MONITORING AND REPORTING PROGRAM EVMWD has prepared an IS/MND in conformance with CEQA Guidelines, Section 15070(b). The purpose of the MND and the Initial Study Checklist (i.e., the IS/MND) is to identify potentially significant impacts associated with the proposed project and incorporate mitigation measures into the project as necessary to eliminate the potentially significant effects of the project or to reduce the effects to a level of insignificance. The CEQA Guidelines, Section 15074(d), requires that a lead or responsible agency adopt a mitigation monitoring plan when approving or carrying out a project when an IS/MND identifies measures to reduce potential adverse environmental impacts. As lead agency for the project, the EVMWD is responsible for adoption and implementation of the mitigation monitoring and reporting program (MMRP). The intent of the MMRP is to ensure the effective implementation and enforcement of all adopted mitigation measures. The MMRP for the proposed project is shown below in Table 1. The MMRP identifies the project's mitigation measures, the party that is responsible for implementing each measure, the party that monitors implementation of each measure, and the stage of the project at which the measure would be implemented. May 2018 Regional Agricultural Pipeline Conversion Project MMRP-1 MMRP Mitigation Monitoring and Reporting Program Table 1 MITIGATION MONITORING AND REPORTING PROGRAM Mitigation Measure I Responsible Party Monitoring Party Implementation Stage Biological Resources MM-BIO-1: Avoidance of Nesting Birds and Raptors. If initial ground- Contractor; EVMWD Prior to ground- disturbing and vegetation removal activities (i.e., earthwork, Biologist disturbing activities, if clearing, and grubbing) must occur during the general bird occurring during the bird breeding season for migratory birds and raptors (January 15 breeding/nesting season through September 15), the project applicant shall retain a qualified biologist to perform a pre-construction survey of potential nesting habitat to confirm the absence of active nests belonging to migratory birds and raptors afforded protection under the Migratory Bird Treaty Act and California Fish and Game Code. The pre-construction survey shall be performed no more than seven days prior to the commencement of the activities. If the qualified biologist determines that no active migratory bird or raptor nests occur within 300 feet of the impact site (500 feet for raptors), the activities shall be allowed to proceed without further requirements. If the qualified biologist determines that an active migratory bird or raptor nest is present, no impacts shall occur until the young have fledged the nest and the nest is confirmed to no longer be active, or until noise barriers have been installed that adequately protect the nest, as determined by the qualified biologist. MM-BIO-2: Construction Fencing. Temporary construction fencing (with Contractor EVMWD; Biologist Prior to construction silt barriers) shall be installed at the limits of project impacts (including construction staging areas and access routes) adjacent to sensitive habitat to prevent sensitive habitat impacts and to prevent the spread of silt from the construction zone into adjacent habitats. Temporary fencing shall be located on the western and southern boundaries of the impact area where they interface with the Lake Elsinore Outlet Channel and Lake Elsinore shoreline. Fencing shall be installed in a manner that does not impact habitats to be avoided. Regional Agricultural Pipeline Conversion Project MMRP-2 May 2018 MMRP Mitigation Monitoring and Reporting Program Table 1 MITIGATION MONITORING AND REPORTING PROGRAM Mitigation Measure I Responsible Party Monitoring Party Implementation Stage Biological Resources Construction crews shall strictly limit their activities, vehicles, equipment, and construction materials to the fenced project footprint. All equipment maintenance, staging, and dispensing of fuel, oil, coolant, or any other such activities shall occur in designated areas within the fenced project impact limits. These designated areas shall be located in previously compacted and disturbed areas to the maximum extent practicable in such a manner as to prevent runoff from entering adjacent habitat and shall be shown on the construction plans. Contractor equipment shall be checked for leaks prior to operation and repair, as necessary. "No- fueling zones" shall be designated on construction plans. If work occurs beyond the fenced or demarcated limits of impact, all work shall cease until the problem has been remedied to the satisfaction of the Elsinore Valley Municipal Water District(EVMWD). Impacts that occur to sensitive areas beyond the approved fence shall be mitigated as determined by EVMWD in coordination with the U.S. Fish and Wildlife Service, U.S. Army Corps of Engineers, Regional Water Quality Control Board, and/or California Department of Fish and Wildlife. Temporary construction fencing shall be removed upon project completion. MM-13I0-3: Downstream Riparian Monitoring. In order to verify the EVMWD EVMWD; Biologist Prior to operation and persistence of habitat downstream of the existing flood then once a year for a control channel, EVMWD shall retain a qualified biologist to period of five years monitor the downstream area annually for a period of five years to confirm that it can persist without the effluent flow and no significant impact has occurred. The area monitored shall consist of the area within the outer banks of the drainage or the dripline of the riparian canopy, whichever is greater. The monitoring shall include baseline measurements of the stand's pre-project condition, which shall then be repeated at the same time each year for Regional Agricultural Pipeline Conversion Project MMRP-3 May 2018 MMRP Mitigation Monitoring and Reporting Program Table 1 MITIGATION MONITORING AND REPORTING PROGRAM Mitigation Measure I Responsible Party Monitoring Party Implementation Stage Biological Resources five years after the diversion of the effluent. To the extent possible, the baseline measurements shall be completed and documented no more than 90 days prior to diversion of the effluent. The area downstream of the new effluent discharge location shall also be monitored on the same schedule and collecting the same data as the habitat downstream of the existing flood control channel. Data collected each year shall include visual estimates of the habitat area (acres, currently estimated at 0.4 acre); species composition (woody plants only); and structural composition (percent cover of herbs, shrubs, and trees) of the downstream habitat and the new effluent discharge path. Photos shall be taken from fixed locations to document current conditions. Significant lake level fluctuations, wind storms, drought, flood, fire, and other external and environmental influences unrelated to the removal of effluent shall also be recorded, and the project shall not be held responsible for changes caused by any of these factors. Monitoring results and recommendations shall be documented in a brief report, which shall be submitted to the USFWS and CDFW each year, in combination with the monitoring results of the habitat enhancement addressed in mitigation measure 131O-5. Pursuant to guidance provided by the USFWS and CDFW in project correspondence, the threshold triggering a potential significant impact warranting consultation and additional compensatory mitigation shall be a 40 percent or greater decrease of native cover in any of the three strata (herb, shrub, and tree), or the disappearance of one or more native woody plant genus that was recorded in the pre-project condition. Regional Agricultural Pipeline Conversion Project MMRP-4 May 2018 MMRP Mitigation Monitoring and Reporting Program Table 1 MITIGATION MONITORING AND REPORTING PROGRAM Mitigation Measure I Responsible Party Monitoring Party Implementation Stage Biological Resources If the monitoring results indicate a significant impact after five years, then EVMWD shall consult with the USFWS and CDFW to confirm the need for any additional compensatory mitigation requirements. At a minimum, the additional mitigation shall include one or a combination of on-and/or off-site habitat establishment/re-establishment, restoration, enhancement, and/or preservation, at a minimum 1:1 ratio, in-kind or with like-functioning habitat, or as otherwise determined in consultation with the USFWS and CDFW. Documented gains in riparian canopy, structure, or native woody plant genera downstream (i.e., on the receiving end) of the new discharge location (besides the 0.06 acre of enhancement discussed in mitigation measure Bio-5) could be used to offset decreases in the downstream habitat, in which case no additional mitigation would be required. MM-13I0-4: Seeding Temporary Impact Area. Upon completion of the Contractor EVMWD Upon completion of construction phase of the proposed project, the temporary construction impact area shall be seeded by hydroseeding or hand seeding the temporary impact area with a non-irrigated native seed mix, including but not limited to saltgrass (Distichlis spicata var. stricta), seep monkeyflower(Mimulus guttatus), and salt heliotrope (Heliotropium curassavicum). To the extent available, the seed mix shall also include sensitive native species that are endemic to the local area targeted for conservation, such as smooth tarplant Centromadia pungens ss . laevis . MM-BIO-5: Habitat Enhancement. Permanent impacts to 0.02 acre of EVMWD; Biologist EVMWD; Biologist Upon completion of disturbed upland Riverine Areas shall be mitigated at a construction for a period 3:1 ratio in the area of the new effluent discharge by of five years enhancing at least 0.06 acre of habitat below the 1,265-foot elevation line. Habitat enhancement shall consist of increasing native plant species coverage and richness above the baseline condition, such that a biologically superior condition is established. Enhancement will include Regional Agricultural Pipeline Conversion Project MMRP-5 May 2018 MMRP Mitigation Monitoring and Reporting Program Table 1 MITIGATION MONITORING AND REPORTING PROGRAM Mitigation Measure I Responsible Party Monitoring Party Implementation Stage Biological Resources initial site preparation and non-native vegetation treatment followed by seeding with a non-irrigated native seed mix. To the extent available, the seed mix shall also include sensitive native species that are endemic to the local area targeted for conservation, such as smooth tarplant (Centromadia pungens ssp. laevis). Enhancement may also include installation of mule fat (Baccharis salicifolia) and/or willow (Salix sp.) cuttings within the newly-established drainage feature, in addition to non-native vegetation treatment and maintenance, on an as-needed basis and under the direction of a qualified biologist or restoration specialist, to encourage native species establishment and help prevent non-native species recruitment. Monitoring shall consist of annual, qualitative surveys to obtain visual estimates on native species coverage, non-native species coverage, and species richness in each tree, shrub, and herbaceous strata. General wildlife use shall also be noted and representative photographs will be taken from at least two pre-determined photo stations. Monitoring results and recommendations shall be documented in a brief report, which shall be submitted to the USFWS and CDFW each year, in combination with the monitoring results of the habitat downstream of the existing flood control channel addressed in mitigation measure Bio-3. If at least 0.06 acre of enhancement is not achieved, EVMWD may substitute off-site mitigation as determined in consultation with the USFWS and CDFW. Regional Agricultural Pipeline Conversion Project MMRP-6 May 2018 MMRP Mitigation Monitoring and Reporting Program Table 1 MITIGATION MONITORING AND REPORTING PROGRAM Mitigation Measure I Responsible Party Monitoring Party Implementation Stage Cultural Resources MM-CUL-1: Cultural Resources Monitoring. At least 30-days prior to EVMWD EVMWD; Tribal At least 30 days prior to ground disturbance, EVMWD will establish monitoring Monitor; ground disturbance. agreements with the consulting tribes to monitor all ground- Archaeological disturbing activities in an effort to identify cultural deposits Monitor within the project site. 1. EVMWD, in consultation with consulting tribes and the project construction supervisor, shall develop a Tribal Monitoring Plan to address the details, timing, and responsibility of all tribal monitoring activities that will occur on the project site. Details in the Plan shall include: a. Project ground-disturbing activities and development scheduling; b. The development of a rotating or simultaneous schedule in coordination with EVMWD, the project supervisor, and the consulting tribe, for designated Native American Tribal Monitors from the consulting tribes during trenching, excavation, and ground-disturbing activities on the site: including the scheduling, safety requirements, duties, scope of work, and Native American Tribal Monitors' authority to stop and redirect ground- disturbing activities. 2. The project archaeologist and Native American Tribal Monitor(s) shall attend a pre-construction meeting with the ground-disturbing contractor to explain the requirements of the monitoring program and protocols for the treatment of cultural resources in the event that resources are encountered. Regional Agricultural Pipeline Conversion Project MMRP-7 May 2018 MMRP Mitigation Monitoring and Reporting Program Table 1 MITIGATION MONITORING AND REPORTING PROGRAM Mitigation Measure I Responsible Party I Monitoring Party Implementation Stage Cultural Resources 3. A qualified archaeological monitor and Native American Tribal Monitor(s) shall be on site full time during trenching and other ground-disturbing activities. Both the archaeological monitor and the Native American Tribal Monitor(s) shall have the authority to temporarily halt or redirect ground-disturbing activities in the event that cultural material is encountered. MM-CUL-2: Treatment and Disposition of Cultural Resources. In the EVMWD; EVMWD; Tribal During ground- event that Native American cultural resources are Archeologist; Monitor disturbance/construction encountered during the course of trenching and other Contractor ground disturbance for this project, the following procedures shall be carried out for treatment and disposition of the discoveries: 1. EVMWD shall relinquish ownership of all cultural resources, including sacred items, burial goods, and all archaeological artifacts and nonhuman remains as part of the required mitigation for impacts to cultural resources. EVMWD shall relinquish the artifacts through one or more of the following methods, to be agreed upon through discussion among EVMWD, the consulting tribes, and the project archaeologist: a. Preservation in place by accommodating the process for on-site reburial of the discovered items with the consulting Native American tribes or bands. This shall include measures and provisions to protect the future reburial area from future impacts. Reburial shall not occur until all cataloguing and basic recordation have been completed; Regional Agricultural Pipeline Conversion Project MMRP-8 May 2018 MMRP Mitigation Monitoring and Reporting Program Table 1 MITIGATION MONITORING AND REPORTING PROGRAM Mitigation Measure I Responsible Party Monitoring Party Implementation Stage Cultural Resources b. A curation agreement with an appropriate qualified repository within Riverside County that meets federal standards per 36 CFR Part 79 and therefore would be professionally curated and made available to other archaeologists/ researchers for further study. The collections and associated records shall be transferred, including title, to an appropriate curation facility within Riverside County, to be accompanied by payment of the fees necessary for permanent curation. Curation may be at a tribal facility. MM-CUL-3: Discovery of Paleontological Materials. In the unlikely event Paleontologist; Paleontologist During construction or that potentially significant paleontological materials Contractor Monitor; EVMWD site disturbance (e.g., fossils) are encountered during construction of the project, all work shall be halted in the vicinity of the paleontological discovery until a qualified paleontologist can visit the site of discovery, assess the significance of the paleontological resource, and provide proper management recommendations. If the discovery proves to be significant, additional work, such as data recovery excavation, may be warranted. The treatment and disposition of paleontological materials that might be discovered during excavation shall be in accordance with applicable laws and regulations. MM-CUL-4: Discovery of Human Remains. In the event that human Contractor; EVMWD; During ground- remains (or remains that may be human) are discovered at Archaeological Archaeological disturbance the project site during trenching or ground disturbance, the Monitor; Tribal Monitor; Tribal construction contractors, project archaeologist, and/or Monitor; EVMWD Monitor designated Native American Monitor shall immediately stop all activities within 100 feet of the find. EVMWD shall then inform the Riverside County Coroner immediately, and the coroner shall be permitted to examine the remains as required by California Health and Safety Code Section 7050.5(b). Section 7050.5 requires that excavation be stopped in the vicinity of discovered human remains until the coroner can determine whether the remains are those of a Regional Agricultural Pipeline Conversion Project MMRP-9 May 2018 MMRP Mitigation Monitoring and Reporting Program Table 1 MITIGATION MONITORING AND REPORTING PROGRAM Mitigation Measure Responsible Party Monitoring Party Implementation Stage Native American. If human remains are determined as those of Native American origin, EVMWD shall comply with the state relating to the disposition of Native American burials that fall within the jurisdiction of the NAHC (PRC Section 5097). The coroner shall contact the NAHC to determine the most likely descendant(s) (MLD). The MLD shall complete his or her inspection and make recommendations or preferences for treatment within 48 hours of being granted access to the site. The Disposition of the remains shall be overseen by the MLD to determine the most appropriate means of treating the human remains and any associated grave artifacts. The specific locations of Native American burials and reburials will be proprietary and not disclosed to the general public. The County Coroner will notify the NAHC in accordance with California Public Resources Code 5097.98. Hazardous Materials MM-HAZ-1: Potentially Hazardous Material. To reduce potentially Contractor EVMWD; EVMWD During construction hazardous conditions and minimize impacts from the handling Representative of potentially hazardous material, EVMWD shall include the following mitigation measures as requirements in the construction contract documents for this project. The contractor(s)shall: • Monitor soil for the presence of discolored or odorous soil during excavation and construction activities. If impacted soil is encountered, the site shall be evaluated by a qualified hazardous material professional and handled in accordance with applicable environmental laws and regulations. During excavation and construction activities, environmental monitoring for the presence of Regional Agricultural Pipeline Conversion Project MMRP-10 May 2018 MMRP Mitigation Monitoring and Reporting Program Table 1 MITIGATION MONITORING AND REPORTING PROGRAM Mitigation Measure I Responsible Party Monitoring Party Implementation Stage Hazardous Materials contamination and impacted groundwater shall be conducted. Health and safety measures shall be followed to minimize the risk of human exposure to contaminants during excavation and construction activities. Additionally, impacted soil shall be exported to an approved off-site disposal or recycling facility. However, if impacted soil is encountered and planned to be used as backfill, such a scenario must be evaluated by a local regulatory agency such as the RWQCB. The stockpiling and reuse of impacted soil would likely be subject to Waste Discharge Requirements mandated by the RWQCB. If construction of the project requires export of excavated soil, the construction contractor shall be required to screen the soil for potential contaminants prior to removal from the site. All contractors and workers shall be made aware of the presence or likely presence of hazardous material along the proposed alignment. • Prepare a Health and Safety Plan in compliance with the requirements of Chapter 6.95, Division 20 of the Health and Safety Code(§§25500—25532). The plan shall include measures to be taken in the event of an accidental spill. • Enforce strict on-site handling rules to keep construction and maintenance materials out of receiving waters and storm drains. In addition, the contractor(s) shall store all reserve fuel supplies only within the confines of a designated construction staging area, and regularly inspect all construction equipment for leaks. Regional Agricultural Pipeline Conversion Project MMRP-11 May 2018 MMRP Mitigation Monitoring and Reporting Program Table 1 MITIGATION MONITORING AND REPORTING PROGRAM Mitigation Measure I Responsible Party I Monitoring Party Implementation Stage Hazardous Materials • Design the construction staging area to contain contaminants such as oil, grease, and fuel products so that they do not drain towards receiving waters(e.g., Lake Elsinore)or storm drain inlets. Additionally, the construction staging area shall be located within the temporary construction fencing limits. Regional Agricultural Pipeline Conversion Project MMRP-12 May 2018 - 1 - COOPERATIVE FUNDING AGREEMENT Regional Agricultural Pipeline Conversion Project Lake Elsinore Outlet Channel The Riverside County Flood Control and Water Conservation District, a body politic ("DISTRICT"), the City of Lake Elsinore, a municipal corporation ("CITY"), and the Elsinore Valley Municipal Water District, a municipal water district ("EVMWD"), which are collectively referred to herein as “Parties” and individually as “Party,” hereby enter into this Cooperative Funding Agreement ("Agreement") and agree as follows: RECITALS A. DISTRICT currently owns and maintains the Lake Elsinore Outlet Channel (DISTRICT Project No. 3-0-00040), hereinafter called "CHANNEL", located within the City of Lake Elsinore; and B. CHANNEL's primary purpose is that of a flood control facility; and C. EVMWD currently owns and operates the Regional Water Reclamation Facility, hereinafter known as "EVMWD FACILITIES", and discharges recycled water from EVMWD FACILITIES, hereinafter called "DISCHARGES", that historically flowed through CHANNEL to Lake Elsinore; and D. Said DISCHARGES through CHANNEL caused the growth of vegetation and other organic matter in CHANNEL, causing maintenance costs to substantially increase for DISTRICT; and E. Said vegetation and other organic matter attributed to the DISCHARGES, reduced through evapotranspiration the volume of reclaimed water that reached Lake Elsinore; and F. DISTRICT determined that removal of outflow of DISCHARGES through CHANNEL would substantially reduce the cost of maintenance operations and increase the volume of DISCHARGES reaching Lake Elsinore; and - 2 - G. DISTRICT, CITY, and EVMWD jointly funded the design and construction of the facilities needed to convey DISCHARGES directly to Lake Elsinore via the improvement, repurposing and extending an already existing agricultural irrigation pipeline, hereinafter known as "PROJECT", with EVMWD acting as Lead Agency; and H. As part of the Mitigation Monitoring and Reporting Program (“MMRP”) required in compliance of CEQA for the construction of the PROJECT, several ongoing mitigation measures were identified hereinafter called “MITIGATION MEASURES”; and I. DISTRICT and CITY wish to support EVMWD's efforts to comply with the MITIGATION MEASURES by providing financial contributions toward the following: (i) Approved cost for ongoing MITIGATED MEASURES outlined in the MMRP, specifically: Downstream Riparian Monitoring (MM-BIO-3 in MMRP) and Habitat Enhancement (MM-BIO-5) for a minimum period of five years; and (ii) Approved costs associated with administration Professional Service Agreement (”PSA”) (“CONTRACT ADMINISTRATION”) for the implementation of the MITIGATION MEASURES; and (iii) Change orders ("CHANGE ORDERS") approved by the EVMWD and DISTRICT for PROJECT in an amount not to exceed the contingency; and (iv) Altogether, MITIGATION MEASURES, CONTRACT ADMINISTRATION, and CHANGE ORDERS are hereinafter called "TOTAL PROJECT COSTS". J. EVMWD agrees to (i) provide a financial contribution comprised of one-third (1/3) of TOTAL PROJECT COSTS, not to exceed $45,000, (ii) award and administer the performance of MITIGATION MEASURES, including the administration of a Professional Service Agreement (”PSA”); and - 3 - K. DISTRICT agrees to provide a financial contribution comprised of up to one-third (1/3) of TOTAL PROJECT COSTS, not to exceed a total sum of $45,000, hereinafter known as "DISTRICT CONTRIBUTION"; and L. CITY agrees to (i) provide a financial contribution comprised of one-third (1/3) of TOTAL PROJECT COSTS, not to exceed $45,000, hereinafter known as "CITY CONTRIBUTION"; and M. DISTRICT, CITY and EVMWD acknowledge it is in the best interest of the public to proceed with the implementation of MITIGATION MEASURES; and N. The purpose of this Agreement is to memorialize the mutual understandings by and between DISTRICT, CITY and EVMWD with respect to the MITIGATION MEASURES. NOW, THEREFORE, in consideration of the preceding recitals and the mutual covenants hereinafter contained, the Parties hereto mutually agree as follows: SECTION I EVMWD shall: 1. Assume responsibility for the implementation of the adopted MITIGATION MEASURES. 2. Invoice DISTRICT (Attention: Chief of Regulatory Division) for fifty percent (50%) of DISTRICT CONTRIBUTION, hereinafter called "INITIAL CONTRIBUTION" within thirty days of execution of this agreement. 3. Submit all proposed CHANGE ORDERS to DISTRICT (Attn: Chief of Regulatory Division) via letter and email. DISTRICT shall review change order proposal(s) as soon as possible. DISTRICT shall not unreasonably withhold its approval of a change order. If DISTRICT does not object to a change order within ten (10) working days of receipt of letter, it shall be deemed approved by DISTRICT. 4. Keep an accurate accounting of MITIGATION MEASURES and associated contract administration costs and include this final accounting when invoicing (i) DISTRICT for the remainder - 4 - payment, hereinafter called "FINAL CONTRIBUTION", and (ii) CITY for payment. The final accounting of MITIGATION MEASURES and CONTRACT ADMINISTRATION costs shall include a detailed breakdown of all costs, including but not limited to, the consultant’s actual proposal, EVMWD's costs associated with administering the contract, payment vouchers, CHANGE ORDERS and other such contract documents as may be necessary to establish DISTRICT's and CITY's share of the actual costs of TOTAL PROJECT COST. 5. Require its consultants(s) to include EVMWD, DISTRICT, CITY and the County of Riverside as additional insureds under the liability insurance coverage for MITIGATION MEASURES. 6. Upon completion of required MITIGATION MEASURES, conduct a final accounting of TOTAL PROJECT COSTS. If DISTRICT's share of actual TOTAL PROJECT COST, as established in Section I.4 is greater than INITIAL CONTRIBUTION, invoice DISTRICT (Attention: Chief of Regulatory Division) for FINAL CONTRIBUTION, provided that DISTRICT TOTAL CONTRIBUTION does not exceed the lower of (i) a total sum of forty-five thousand dollars ($45,000) or (ii) one-third (1/3) of TOTAL PROJECT COSTS. 7. Ensure that all work performed pursuant to this Agreement by EVMWD, its agents or consultants is done in accordance with all applicable laws and regulations, including but not limited to, all applicable provisions of the Labor Code, Business and Professions Code and Water Code. SECTION II DISTRICT shall: 1. Grant EVMWD, its agents or consultants, by execution of this Agreement, the right to enter upon DISTRICT's property for the purpose of performing MITIGATION MEASURES. - 5 - 2. Review change order proposal(s) as soon as possible. DISTRICT shall not unreasonably withhold its approval of a change order. If DISTRICT does not object to a change order within ten (10) working days of receipt of email, it shall be deemed approved by DISTRICT. 3. Notify EVMWD of any objections to FINAL CONTRIBUTION or CHANGE ORDERS within thirty (30) days of submission of the invoice to DISTRICT. In the event EVMWD determines that a charge was billed incorrectly, an addendum to the invoice in question shall be provided and DISTRICT shall be reimbursed or credited for the amount incorrectly charged. 4. Pay EVMWD within forty-five (45) days after receipt of EVMWD's appropriate invoices for INITIAL CONTRIBUTION and FINAL CONTRIBUTION as set forth in Sections I.2. and I.6. SECTION III CITY shall: 1. Grant EVMWD, its agents or contractors, by execution of this Agreement, the right to enter upon CITY's property for the purpose of performing MITIGATION MEASURES. 2. Pay EVMWD within forty-five (45) days after receipt of EVMWD's appropriate invoice for CITY CONTRIBUTION. SECTION IV It is further mutually agreed: 1. PROJECT shall, at all times, remain sole ownership and exclusive responsibility of EVMWD. Nothing herein shall be construed as creating any obligation or responsibility on the part of DISTRICT or CITY to operate, maintain or warranty PROJECT. 2. In the event actual TOTAL PROJECT COST is less than DISTRICT’S INITIAL CONTRIBUTION, EVMWD shall refund the difference to DISTRICT within thirty (30) days of completion for PROJECT. - 6 - 3. DISTRICT CONTRIBUTION shall not exceed the lower of: (i) a total sum of forty-five thousand dollars ($45,000) or (ii) one-third (1/3) of TOTAL PROJECT COSTS without written amendment to this Agreement and shall be used by EVMWD solely for the purpose of completing the required MITIGATION MEASURES as set forth herein. 4. DISTRICT shall not pay interest or finance charges on any outstanding balance(s). 5. CITY CONTRIBUTION shall not exceed a total sum of forty-five thousand dollars ($45,000) or (ii) one-third (1/3) of TOTAL PROJECT COSTS without written amendment to this Agreement and shall be used by EVMWD solely for the purpose of completing the required MITIGATION MEASURES as set forth herein. 6. CITY shall not pay interest or finance charges on any outstanding balance(s). 7. DISTRICT, the County of Riverside, or any of their duly authorized representatives shall have the right to review and to copy any records and supporting documentation pertaining to the performance of this Agreement, with the exception of any privileged and/or work product documentation between each PARTY and their legal counsel. EVMWD agrees to maintain such records for possible audit for a minimum of three (3) years after final payment. EVMWD agrees to allow the auditor(s) access to such records during normal business hours and to allow interviews of any employees who might reasonably have information related to such records. 8. The Parties recognize that this Agreement is subject to the provisions of Section 895 et seq. of the Government Code. Pursuant to Section 895.4 of the Government Code, the Parties as part of this Agreement will provide for contribution or indemnification upon any liability arising out of the performance of this Agreement. (a) EVMWD shall indemnify, defend, save and hold harmless at its own expense, including attorneys' fees, DISTRICT, CITY, and the County of Riverside (including their Agencies, Districts, Special Districts and Departments, their respective directors, officers, Board of - 7 - Supervisors, elected and appointed officials, employees, agents, representatives, independent contractors and subcontractors) from any liabilities, claims, damages, proceedings or actions, causes of actions, demands, suits, orders, judgments, payments, losses, costs and expenses (including reasonable attorneys', consultants' or experts' fees and costs), and any request for relief of any character whatsoever, legal or equitable, known or unknown, developed or undeveloped, anticipated or unanticipated, present or future, caused by, based upon, arising out of or in any way relating to EVMWD's (including its directors, elected officials, officers, employees, agents, representatives, independent contractors and subcontractors) actual or alleged negligent acts, errors or omissions, or willful misconduct of EVMWD (including its directors, elected officials, officers, employees, agents, representatives, independent contractors and subcontractors) acting under this Agreement, performance under this Agreement or failure to comply with the requirements of this Agreement, including but not limited to, (a) property damage; (b) bodily injury or death; (c) payment of attorneys' fees; or (d) any other element of any kind or nature whatsoever. (b) DISTRICT shall indemnify, defend, save and hold harmless at its own expense, including attorneys' fees, EVMWD and CITY (including their respective directors, officers, elected and appointed officials, employees, agents, representatives, independent contractors and subcontractors) from any liabilities, claims, damages, proceedings or actions, causes of actions, demands, suits, orders, judgments, payments, losses, costs and expenses (including reasonable attorneys', consultants' or experts' fees and costs), and any request for relief of any character whatsoever, legal or equitable, known or unknown, developed or undeveloped, anticipated or unanticipated, present or future, caused by, based upon, arising out of or in any way relating to DISTRICT's (including its directors, officers, Board of Supervisors, elected and appointed officials, employees, agents, representatives, independent contractors and subcontractors) - 8 - actual or alleged negligent acts, errors or omissions, or willful misconduct of DISTRICT (including its directors, officers, Board of Supervisors, elected and appointed officials, employees, agents, representatives, independent contractors and subcontractors) acting under this Agreement, performance under this Agreement or failure to comply with the requirements of this Agreement, including but not limited to, (a) property damage; (b) bodily injury or death; (c) payment of attorneys' fees; or (d) any other element of any kind or nature whatsoever. (c) CITY shall indemnify, defend, save and hold harmless at its own expense, including attorneys' fees, EVMWD, DISTRICT, and the County of Riverside (including their Agencies, Districts, Special Districts and Departments, their respective directors, officers, Board of Supervisors, elected and appointed officials, employees, agents, representatives, independent contractors and subcontractors) from any liabilities, claims, damages, proceedings or actions, causes of actions, demands, suits, orders, judgments, payments, losses, costs and expenses (including reasonable attorneys', consultants' or experts' fees and costs), and any request for relief of any character whatsoever, legal or equitable, known or unknown, developed or undeveloped, anticipated or unanticipated, present or future, caused by, based upon, arising out of or in any way relating to CITY's (including its directors, officers, elected and appointed officials, employees, agents, representatives, independent contractors and subcontractors) actual or alleged negligent acts, errors or omissions, or willful misconduct of CITY (including its directors, officers, elected and appointed officials, employees, agents, representatives, independent contractors and subcontractors) acting under this Agreement, performance under this Agreement or failure to comply with the requirements of this Agreement, including but not limited to, (a) property damage; (b) bodily injury or death; (c) payment of attorneys' fees; or (d) any other element of any kind or nature whatsoever. - 9 - (d) This indemnification provision shall survive termination or expiration of this Agreement until such a time as the statute of limitations shall run for any claims that may arise out of this Agreement. 9. The obligation(s) of DISTRICT are limited by and contingent upon the availability of DISTRICT funds for DISTRICT's financial contribution towards the Agreement as set forth herein. In the event that such funds are not forthcoming for any reason, DISTRICT shall immediately notify EVMWD in writing. AGREEMENT shall be deemed terminated and have no further force and effect immediately upon receipt of DISTRICT’s notification by EVMWD. 10. This Agreement is made and entered into for the sole protection and benefit of the Parties hereto. No other person or entity shall have any right or action based upon the provisions of this Agreement. 11. Any and all notices sent or required to be sent to the Parties of this Agreement will be mailed by first class mail, postage prepaid, to the following addresses: RIVERSIDE COUNTY FLOOD CONTROL ELSINORE VALLEY AND WATER CONSERVATION DISTRICT MUNICIPAL WATER DISTRICT 1995 Market Street 31315 Chaney Street Riverside, CA 92501 Lake Elsinore, CA 92530 Attn: Chief of Regulatory Attn: General Manager Email: jvalle@rivco.org CITY OF LAKE ELSINORE 130 South Main Street Lake Elsinore, CA 92530 Attn: City Manager Courtesy copies of any notices may be sent by electronic mail in addition to the notice sent by first class mail. 12. If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way. - 10 - 13. This Agreement is to be construed in accordance with the laws of the State of California. 14. Any action at law or in equity brought by any of the parties hereto for the purpose of enforcing a right or rights provided for by the Agreement, shall be tried in a court of competent jurisdiction in the County of Riverside, State of California, and the parties hereto waive all provisions of law providing for a change of venue in such proceedings to any other county. 15. The Parties hereto shall not assign this Agreement without the written consent of the other Parties. 16. Any action at law or in equity brought by any of the Parties hereto for the purpose of enforcing a right or rights provided for by the Agreement, shall be tried in a court of competent jurisdiction in the County of Riverside, State of California, and the Parties hereto waive all provisions of law providing for a change of venue in such proceedings to any other county. 17. This Agreement is the result of negotiations between the Parties hereto, and the advice and assistance of their respective counsel. The fact that this Agreement was prepared as a matter of convenience by DISTRICT shall have no import or significance. Any uncertainty or ambiguity in this Agreement shall not be construed against DISTRICT because DISTRICT prepared this Agreement in its final form. 18. Any waiver by DISTRICT, CITY or EVMWD, of any breach by any other Party of any provision of this Agreement shall not be construed to be a waiver of any subsequent or other breach of the same or any other provision hereof. Failure on the part of DISTRICT, CITY or EVMWD to require from any other Party exact, full and complete compliance with any of the provisions of this Agreement shall not be construed as in any manner changing the terms hereof, or estopping DISTRICT, CITY or EVMWD from enforcing this Agreement. 19. This Agreement is intended by the Parties hereto as a final expression of their understanding with respect to the subject matter hereof and as a complete and exclusive statement of the terms and - 11 - conditions thereof and supersedes any and all prior and contemporaneous agreements and understandings, oral and written, in connection therewith. This Agreement may be changed or modified only upon the written consent of the parties hereto. 20. No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the Parties and no oral understanding or agreement not incorporated herein shall be binding on the Parties hereto. 21. Nothing in the provisions of this Agreement is intended to create duties or obligations to or rights in third parties not party to this Agreement. 22. This Agreement may be executed and delivered in any number of counterparts or copies, hereinafter called "COUNTERPART," by the Parties hereto. When each Party has signed and delivered at least one COUNTERPART to the other Parties hereto, each COUNTERPART shall be deemed an original and, taken together, shall constitute one and the same Agreement, which shall be binding and effective as to the Parties hereto. // // - 12 - IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on . (to be filled in by Clerk of the Board) RECOMMENDED FOR APPROVAL: RIVERSIDE COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT By By JASON E. UHLEY MARION ASHLEY, Chairman General Manager-Chief Engineer Riverside County Flood Control and Water Conservation District Board of Supervisors APPROVED AS TO FORM: ATTEST: GREGORY P. PRIAMOS KECIA HARPER-IHEM County Counsel Clerk of the Board By By KRISTINE BELL-VALDEZ Deputy Supervising Deputy County Counsel (SEAL) Cooperative Funding Agreement with the City of Lake Elsinore and EVMWD Regional Agricultural Pipeline Conversion Project Lake Elsinore Outlet Channel - 13 - CITY OF LAKE ELSINORE By By GRANT YATES BRIAN TISDALE City Manager Mayor APPROVED AS TO FORM: ATTEST: By By BARBARA LEIBOLD CANDICE ALVAREZ City Attorney City Clerk (SEAL) Cooperative Funding Agreement with the City of Lake Elsinore and EVMWD Regional Agricultural Pipeline Conversion Project Lake Elsinore Outlet Channel - 14 - ELSINORE VALLEY MUNICIPAL WATER DISTRICT By GREG THOMAS General Manager APPROVED AS TO FORM: ATTEST: By By STEVE ANDERSON TERESE QUINTANAR General Counsel District Secretary Cooperative Funding Agreement with the City of Lake Elsinore and EVMWD Regional Agricultural Pipeline Conversion Project Lake Elsinore Outlet Channel - A1 - Exhibit A - Estimated Project Cost Cooperative Funding Agreement Compliance of Mitigation Measures for Regional Agricultural Pipeline Conversion Project Lake Elsinore Outlet Channel Description Estimated Cost ($) Compliance with Monitoring Program $ 115,767 Contract Administration (EVMWD) 4,000 Overhead 2,233 Contingency 13,000 Total Estimated Cost $ 135,000