EXHIBIT
5-A
MEMORANDUM OF AGREEMENT
BETWEEN THE MONTEREY PENINSULA WATER
MANAGEMENT DISTRICT
AND THE CARMEL RIVER STEELHEAD
ASSOCIATION, INCORPORATED:
LIMITED ACCESS AND USE OF SLEEPY HOLLOW
STEELHEAD REARING FACILITY
1. THIS MEMORANDUM OF AGREEMENT (MOA),
made this day of June 2003, between the Monterey
Peninsula Water Management District, hereinafter called the District and the
Carmel River Steelhead Association, Incorporated, hereinafter called the
Association, represented by the respective officers executing this Agreement.
EXPLANATORY RECITALS
2. WHEREAS, Association conducts seasonal
rescues of steelhead in the tributaries of the Carmel River and has requested
to transport and deliver the rescued fish to the Sleepy Hollow Steelhead Rearing
Facility; and
3. WHEREAS, the District adopted (in
November 1990) and implemented the Five-Year Mitigation Program for Option V,
as part of the Final Environmental Impact Report for the Water Allocation
Program (April 1990); and
4. WHEREAS, as part of the Fisheries
section of the Mitigation Program, the District is responsible for rescuing
juvenile steelhead from the lower mainstem of the Carmel River (River) and
transplanting these fish to permanent habitats or rearing them in a facility
through the dry season; and
5. WHEREAS, District has designed and
constructed the Sleepy Hollow Steelhead Rearing Facility (Facility) for the
purpose of rearing juvenile steelhead; and
6. WHEREAS, District staff has determined
that rearing additional fish from the tributary rescues will not interfere with
rescue and rearing of steelhead from the mainstem, or substantially increase
overall operation and maintenance costs, but will potentially benefit the
steelhead population in the Carmel River Basin.
7.
The
Facility will be used to rear juvenile steelhead that are rescued from the
tributaries of the Carmel River downstream of San Clemente Dam, if those
tributaries dry up, and the mainstem of the River at their confluences is not
expected to remain wet throughout the year.
Use of the Facility for rearing tributary fish is subject to approval by
the California Department of Fish and Game (CDFG) and the National Oceanic and
Atmospheric Administration – Fisheries (NOAA - Fisheries).
8.
The
decision on whether to rear fish rescued from the tributaries will be made
annually by the CDFG, NOAA-Fisheries and the District. Fish rescued by Association in the mainstem,
under direction of District, may also be held at the Facility.
9.
District
will be responsible for day-to-day operations and will conduct all maintenance
of the Facility and care of all juvenile fish, including fish from the
tributary rescues, subject to terms and conditions as set forth in the Annual
Memorandum of Agreement between the CDFG and the District. Association members may observe all aspects
of operations at Sleepy Hollow, but under no circumstances will Association
adjust, modify, or change any aspect of the daily operation, without prior
approval of District staff.
10.
In order to accept tributary fish, the Facility
must be in normal operation mode and adequate space must be available. The tanks and rearing channel at the facility
were designed to hold and rear a maximum of
64,000 young-of-the-year.
Currently, excess capacity is available at the facility, but this could
change in the future. For example, a
multi-year drought would require that fish be held at the facility through a
dry winter period, when additional fish rescues would be needed at the
beginning of the next dry season. Under these circumstances, it may not be
possible to rear additional fish from the tributaries.
11.
Only
Association members in good standing are allowed to deliver fish to the
Facility.
12.
For
the purpose of administering terms of this MOA, the lead persons or contacts
will be: Dave Dettman, District Senior Fisheries Biologist, Beverly Chaney
(District Associate Fisheries Biologist), Geoff Malloway (lead for Association
rescue team) and Clive Sanders (Association designated contact).
13.
Association
will maintain complete, accurate records of the numbers of fish rescued at the
time of capture, fish mortalities during transit and numbers of fish delivered
to the Facility. Only fish in good
health will be accepted at the Facility.
District staff will determine acceptability of fish at the time of
delivery. Any fish with abrasions, or in
obviously poor health, will not be accepted.
Association will complete and submit an annual report on rescue
activities to the District by August 1 of each year that the MOA is in effect.
14.
Association
must provide notification before fish are brought to the facility. District staff must be at the Facility to
receive fish from the tributaries. Fish
must be delivered during the normal workday week (Monday-Friday, 9:00 A.M. to
3:00 P.M.), or on Saturday by 12:00 noon.
No Sunday deliveries are allowed under terms of this MOA. Association will notify District contact(s),
by close of business (COB) Thursday of each week on rescues planned for the
upcoming week and confirm the activities by COB Friday. For the purposes of
this section, notification will be via phone or email.
15.
The
District operates the Facility under a license agreement with
California-American Water Company (Cal-Am) and access to the Facility may be
restricted during federal Code Orange security alerts. Under this circumstance, Association members
may not enter Cal-Am property without being escorted and must make special
arrangements with District contact(s) for an escort.
16.
Association
will maintain general liability insurance that covers the activities of
Association members at all times, when delivering fish to the Facility and on
Cal-Am property. Prior to accessing the
Facility, Association will provide copies of its insurance certificate, naming
Cal-Am and District as additional insured’s.
17.
Insurance/Indemnification
– For any and all insurable losses, Association shall provide the indemnity as
set forth below to the extent that such liability shall be covered by
Association’s policies of liability insurance.
Association shall maintain at its expense commercial general liability
insurance covering actions by Association providing for a limit of not less
than $2,000,000 single limits, bodily injury and/or property damage combined,
for damages arising out of bodily injuries to or death of all persons and for
damages to or destruction of property, including the loss thereof. District and Association shall look solely to
insurance for loss due to any damage, which is covered by insurance and neither
party’s insurance company shall be subrogated to a claim against the other
party. Each party shall indemnify and
defend the other against loss from their negligent acts and the negligent acts
of their employees, agents, licensees, and volunteers. This provision shall not
create a presumption or inference that any future damage or loss has been
caused by Association and/or its members and volunteers, during the delivery of
fish or visitation at the Facility, or otherwise. Each party shall indemnify and defend the
other against loss from their willful acts and active negligence that may
damage the Facility, Cal-Am property, utility lines, appurtenant equipment, or
their employees or agents.
18.
Upon
prior approval, Association members in good standing will be allowed to visit
the Facility during normal workdays, between the hours of 9:00 A.M. and 3:00
P.M. Visitation shall be limited to
parties of five people, two hours per day, and subject to any Cal-Am
restrictions.
EFFECTIVE DATE AND DURATION OF MOA
19.
This
agreement will become effective upon signatures by designated representatives
of District and Association and will remain in force for one year from the date
of signing. The terms and conditions of
the MOA may be amended at any time, provided both parties to this MOA agree to
such amendments in writing.
20.
All
written notifications herein provided to be given or which may be given by
either party to the other, will be deemed to have been fully given when made in
writing and deposited in the United States mail postage prepaid and addressed
as follows:
To: Monterey Peninsula Water Management
District
P. O. Box 85
Monterey, CA 93942-0085
To: Roy
Thomas,
President
Carmel River Steelhead Association
P. O Box 1183
Monterey, CA 93940
EXECUTION
IN
WITNESS WHEREOF, the District and Association have caused this Memorandum of
Agreement to be executed by an authorized official on the day and year set
forth opposite their signature.
______ __________
Monterey
Peninsula Water Management District Date
P.
O. Box 85
Monterey,
CA 93942-0085
_____ ______
Carmel
River Steelhead Association, Inc. Date
P. O Box 1183
Monterey,
CA 93940