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11-08-2021_CC Agenda Packet
1.CALL TO ORDER 2.ROLL CALL 3.OPEN AGENDA - PUBLIC COMMENT WELCOME This is the appropriate time for members of the public to make comments regarding the items on the consent calendar or items not listed on this agenda. Pursuant to the Brown Act, no action will take place on any items not on the agenda. 4.CONSENT CALENDAR Matters which may be acted upon by the City Council in a single motion. Any Councilmember may request removal of any item from the Consent Calendar causing it to be considered under Council Actions. 4.A.REGULAR MEETING MINUTES OF OCTOBER 25, 2021. RECOMMENDATION: Approve as presented. NO. 2 PORTUGUESE BEND ROAD ROLLING HILLS, CA 90274 (310) 377-1521 FAX (310) 377-7288 AGENDA Regular City Council Meeting CITY COUNCIL Monday, November 08, 2021 CITY OF ROLLING HILLS 7:00 PM All Councilmembers will participate in-person wearing masks per Los Angeles County Health Department's Health Officer Order effective Saturday, July 17, 2021. The meeting agenda is available on the City’s website. The City Council meeting will be live-streamed on the City’s website. Both the agenda and the live-streamed video can be found here: https://www.rolling- hills.org/government/agenda/index.php Members of the public may submit written comments in real-time by emailing the City Clerk’s office at cityclerk@cityofrh.net. Your comments will become part of the official meeting record. You must provide your full name, but please do not provide any other personal information that you do not want to be published. Recordings to City Council meetings can be found here: https://cms5.revize.com/revize/rollinghillsca/government/agenda/index.php Next Resolution No. 1287 Next Ordinance No. 372 PLEDGE OF ALLEGIANCE 10.25.2021_CCMinutes_P.docx 1 4.B.PAYMENT OF BILLS. RECOMMENDATION: Approve as presented. 4.C.APPROVE AMENDED AGREEMENT WITH ALAN PALERMO CONSULTING TO EXTEND PROJECT MANAGEMENT SERVICES TO JUNE 30, 2022. RECOMMENDATION: Approve amended agreement and direct the City Manager to execute the amended agreement. 4.D.APPROVE A PROFESSIONAL SERVICE AGREEMENT WITH WORLDWISE PRODUCTIONS FOR EDUCATIONAL VIDEOS ON MANAGING VEGETATION IN THE CANYONS FOR AN AMOUNT NOT-TO-EXCEED $24,950. RECOMMENDATION: Approve a professional service agreement with Worldwise Productions and direct the City Manager to execute the agreement. 4.E.APPROVE MINOR CORRECTIONS AND ADDITION TO THE EMPLOYEE HANDBOOK AND PERSONNEL POLICY MANUAL. RECOMMENDATION: Approve as presented. 4.F.APPROVE SUBMITTAL OF THE ENDANGERED SPECIES ACT (ESA) COMPLIANCE MEMORANDUM AND CONSENT TO THE POST CONSTRUCTION REPORTING AS REQUIRED BY FEDERAL EMERGENCY MANAGEMENT AGENCY (FEMA) FOR THE EASTFIELD DRIVE ELECTRIC UTILITY UNDERGROUNDING GRANT PROJECT NUMBER 4382-177-07. RECOMMENDATION: Approve as presented. 4.G.APPROVE THE PROPOSAL FROM LANCE, SOLL & LUNGHARD, LLP (LSL) TO PERFORM ANNUAL AUDIT FOR FISCAL YEAR 2020-2021 FOR AN AMOUNT NOT TO EXCEED $17,623 AND DIRECT THE CITY ATTORNEY TO PREPARE AN AMENDED AGREEMENT WITH LSL. RECOMMENDATION: Approve as presented. 5.COMMISSION ITEMS 6.PUBLIC HEARINGS PaymentofBills.pdf Second Amendment to Professional Services Agreement - Project Manager Alan Palermo- UNSIGNED.DOC Alan Palermo Agreement - Signed_July_2019.pdf Alan Palermo Service Agreement FINAL 2020.28.09.pdf Canyon Management Videos Proposal.PDF PSA with Worldwise for Canyon Management Video.DOCX Rolling Hills Employee Handbook- FINAL 11.1.2021 FOR 11.08.2021 Approval.PDF Eastfield Drive Electrical Utility Undergrounding.pdf ESA Compliance Package Transmittal Letter_Rolling Hills 4382-177-07.pdf 4382-177-07_RollingHills_ESAReviewForm_ForSignature.pdf Copy of FEMA_Post-construction_Notification_Reporting_Form-1.pdf Final USFWS-Carlsbad PBO to FEMA (05.31.2019).pdf Rolling Hills 1 year extension FY 2021.pdf Audit LSL fullyExecuted2016-2019.pdf 2 7.OLD BUSINESS 7.A.REVIEW AND DISCUSS DRAFT CITY ORDINANCE TO COMPLY WITH SENATE BILL (SB) 9, INCREASE DENSITY IN SINGLE FAMILY ZONE. RECOMMENDATION: Review draft and provide direction to staff. 8.NEW BUSINESS 8.A.CONSIDER PROPOSAL FROM THE TENNIS CLUB TO EXPAND COURT 1 FOR ADDITIONAL PICKLE BALL COURTS. RECOMMENDATION: Review, consider and provide direction to staff. 8.B.DISCUSS THE FORMAT OF THE CITY COUNCIL MEETING MINUTES AND PROVIDE DIRECTION TO STAFF. RECOMMENDATION: Discuss and provide direction to staff. 8.C.CONSIDER HOLDING CITY COUNCIL 2022 STRATEGIC PLANNING WORKSHOP ON SATURDAY, JANUARY 22, 2021 AND APPROVE DRAFT AGENDA. RECOMMENDATION: Approve as presented. 9.MATTERS FROM THE CITY COUNCIL AND MEETING ATTENDANCE REPORTS 9.A.CITY COUNCIL PERSONNEL COMMITTEE REPORT ON THE NOVEMBER 8, 2021 COMMITTEE MEETING. RECOMMENDATION: Receive and file a report by the Personnel Committee on the November 8, 2021 meeting. 10.MATTERS FROM STAFF 11.CLOSED SESSION 11.A.EMPLOYEE PERFORMANCE EVALUATION  GOVERNMENT CODE SECTION 54957, TITLE CITY MANAGER. RECOMMENDATION: Review annual performance evaluation for City Manager. 12.ADJOURNMENT Next regular meeting: Monday, November 22, 2021 at 7:00 p.m. in the City Council Chamber, Rolling Hills City Hall, 2 Portuguese Bend Road, Rolling Hills, California, 90274. Senate_Bill_9.PDF Draft_Ordinance_Implementing_SB_9-c1-SUPPLEMENTAL.pdf 2 Portuguese Bend Rd - Google Maps.pdf L-1 051917.pdf Screen-Shot-2018-09-10-at-12.12.29-PM.png Notice: Public Comment is welcome on any item prior to City Council action on the item. Documents pertaining to an agenda item received after the posting of the agenda are available for review in the City Clerk's office or at the meeting at which the item will be considered. 3 In compliance with the Americans with Disabilities Act (ADA), if you need special assistance to participate in this meeting due to your disability, please contact the City Clerk at (310) 377-1521 at least 48 hours prior to the meeting to enable the City to make reasonable arrangements to ensure accessibility and accommodation for your review of this agenda and attendance at this meeting. 4 Agenda Item No.: 4.A Mtg. Date: 11/08/2021 TO:HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM:CONNIE VIRAMONTES , ADMINISTRATIVE ASSISTANT THRU:ELAINE JENG P.E., CITY MANAGER SUBJECT:REGULAR MEETING MINUTES OF OCTOBER 25, 2021. DATE:November 08, 2021 BACKGROUND: Approve as presented. DISCUSSION: None. FISCAL IMPACT: None. RECOMMENDATION: Approve as presented. ATTACHMENTS: 10.25.2021_CCMinutes_P.docx 5 Minutes 1 City Council Regular Meeting October 25, 2021 MINUTES OF A REGULAR MEETING OF THE CITY COUNCIL OF THE CITY OF ROLLING HILLS, CALIFORNIA MONDAY, OCTOBER 25, 2021 1.CALL TO ORDER The City Council of the City of Rolling Hills met in person on the above date at 7:02 p.m. Mayor Bea Dieringer presiding. 2.ROLL CALL Present:Mayor Dieringer, Black, Pieper, Mirsch, and Wilson Absent:None. Staff Present: Elaine Jeng, City Manager Ashford Ball, Senior Management Analyst Stephanie Grant, Code Enforcement Officer/Assistant Planner Jane Abzug, City Attorney Resident Leslie Stetson, 71 Saddleback Road Gene Honbo, 33 Portuguese Bend Road PLEDGE OF ALLEGIANCE BY MAYOR DIERINGER. 3.OPEN AGENDA - PUBLIC COMMENT WELCOME Resident Leslie Stetson, 71 Saddleback Road, raised her concerns regarding coyote trapping and the need to educate the residents on coyotes. 4.CONSENT CALENDAR A.REGULAR MEETING MINUTES OF OCTOBER 11, 2021. The City Council agreed to discuss the format of the meeting minutes at the next City Council meeting. MOTION:Councilmember Pieper motioned to approve the minutes as amended by Mayor Dieringer and Mayor Dieringer seconded the motion. AYES:COUNCILMEMBERS: Mayor Dieringer. NOES: COUNCILMEMBERS: Black, Mirsch, Pieper, and Wilson. 6 Minutes 2 City Council Regular Meeting October 25, 2021 ABSENT: COUNCILMEMBERS: None. ABSTAIN: COUNCILMEMBERS: None. SECOND MOTION:Councilmember Pieper motion to approve the minutes as presented with the grammatical corrections and Councilmember Wilson seconded the motion. AYES:COUNCILMEMBERS: Mirsch, Pieper and Wilson. NOES: COUNCILMEMBERS: Mayor Dieringer, and Black. ABSENT: COUNCILMEMBERS: None. ABSTAIN: COUNCILMEMBERS: None. B.PAYMENT OF BILLS. C.REPUBLIC SERVICES RECYCLING TONNAGE REPORT FOR SEPTEMBER2021. D.APPROVE SOUTH BAY CHAMBER MUSIC SOCIETY’S REQUEST FOR AN ADDITIONAL $600 CONTRIBUTION FOR FISCAL YEAR 2021-2022. MOTION: Councilmember Pieper motioned to approve consent items 4B, 4C and 4D as presented, and Mayor Pro Tem Black seconded the motion. AYES:COUNCILMEMBERS: Mayor Dieringer, Black, Pieper, Mirsch, and Wilson. NOES:COUNCILMEMBERS: None. ABSENT:COUNCILMEMBERS: None. ABSTAIN:COUNCILMEMBERS: None. 5.COMMISSION ITEMS ZONING CASE NO. 21-07: REQUEST FOR APPROVALS FOR: 1) VARIANCES FOR THE PROPOSED NEW RETAINING WALLS TO ENCROACH INTO THE REQUIRED SETBACKS; 2) VARIANCE TO EXCEED THE MAXIMUM 35% LOT COVERAGE; 3) SITE PLAN REVIEW FOR GRADING; AND 4) SITE PLAN REVIEW FOR THE RETAINING WALLS TO EXCEED MAXIMUM 3 FT. HEIGHT LOCATED AT 1 QUAIL RIDGE ROAD SOUTH, ROLLING HILLS, CA 90274 (LOT 1-B-CH), (ABRACOSA). Councilmember Mirsch recused herself from the City Council Chamber at 7:23 PM. MOTION:Mayor Pro Tem Black motioned to move to take jurisdiction of the project. The motion did not receive a second. Councilmember Pieper motioned to receive and file the item and Councilmember Wilson seconded the motion. 7 Minutes 3 City Council Regular Meeting October 25, 2021 AYES:COUNCILMEMBERS: Mayor Dieringer, Pieper, and Wilson. NOES:COUNCILMEMBERS: Black. ABSENT:COUNCILMEMBERS: None. ABSTAIN:COUNCILMEMBERS: None. Councilmember Mirsch returned to the City Council Chamber at 7:40 PM. 6.PUBLIC HEARINGS NONE. 7.OLD BUSINESS A.SELECT A LAYOUT OPTION FOR THE CITY HALL ADA IMPROVEMENTS AND DIRECT STAFF TO COMPLETE THE PREPARATION OF PROJECT CONSTRUCTION DOCUMENTS. MOTION: Councilmember Mirsch motioned to hold deliberation on this item and place a hold on all capital improvement projects with the exception of the first and second phases of the generator removal and replacement project, until the City Council discusses priorities at the 2022 Strategic Planning Workshop. Mayor Pro Tem Black seconded the motion. AYES:COUNCILMEMBERS: Mayor Dieringer, Mayor Pro Tem Black, Pieper, Mirsch, and Wilson. NOES:COUNCILMEMBERS: None. ABSENT:COUNCILMEMBERS: None. ABSTAIN:COUNCILMEMBERS: None. 8.NEW BUSINESS A.APPROVE A PROFESSIONAL SERVICES AGREEMENT WITH WORLDWISE PRODUCTION LLC TO PRODUCE CANYON MANAGEMENT EDUCATIONAL VIDEOS. Resident Gene Honbo presented the storyboard for the proposed videos and informed the Council that seven videos are planned as a part of Worldwise proposal. MOTION:Mayor Pro Tem Black motioned to approve Worldwise Production LLC to produce educational videos at cost not to exceed $25,000 and Councilmember Mirsch seconded the motion. 8 Minutes 4 City Council Regular Meeting October 25, 2021 AYES:COUNCILMEMBERS: Mayor Dieringer, Black, Pieper, Mirsch, and Wilson. NOES: COUNCILMEMBERS: None. ABSENT: COUNCILMEMBERS: None. ABSTAIN: COUNCILMEMBERS: None. B.CONSIDER ENGAGING THINK MARKETING AGENCY TO PROVIDE OUTREACH AND MARKETING SUPPORT THE EDUCATIONAL INITIATIVES OF THE BLOCK CAPTAIN PROGRAM. MOTION:Councilmember Pieper motioned to table this item and Mayor Dieringer seconded the motion. AYES:COUNCILMEMBERS: Mayor Dieringer, Black, Pieper, Mirsch, and Wilson. NOES: COUNCILMEMBERS: None. ABSENT: COUNCILMEMBERS: None. ABSTAIN: COUNCILMEMBERS: None. C. APPROVE THE PROPOSAL FROM ALAN PALERMO CONSULTING TO PROVIDE PROJECT MANAGEMENT SERVICES FOR CAPITAL IMPROVEMENT PROJECTS FOR FISCAL YEAR 2021-2022. MOTION:Councilmember Pieper motioned to extend the contract to June 30, 2022 and Councilmember Wilson seconded the motion. AYES:COUNCILMEMBERS: Mayor Dieringer, Black, Pieper, Wilson, and Mirsch. NOES:COUNCILMEMBERS: None. ABSENT:COUNCILMEMBERS: None. ABSTAIN:COUNCILMEMBERS: None. 9.MATTERS FROM THE CITY COUNCIL AND MEETING ATTENDANCE REPORTS A.SPECIAL STUDIES RELATING TO SB 9. (MAYOR BEA DIERINGER) Mayor Pro Tem Black left the meeting at 10:00 PM citing early surgery the next day. Councilmember Wilson read an email from a resident to Kristen Raig regarding Storm drains and his property. 10.MATTERS FROM STAFF 9 Minutes 5 City Council Regular Meeting October 25, 2021 A.DRAFT OF CITY ORDINANCE IMPLEMENTING SENATE BILL (SB) 9. The City Council directed staff to bring back this item at next meeting to allow the Council time to review the draft. 11.CLOSED SESSION A.EMPLOYEE PERFORMANCE EVALUATION GOVERNMENT CODE SECTION 54957, TITLE CITY MANAGER. The City Council directed staff to bring back this item at the next meeting so that Mayor Pro Tem Black can participate. 12.ADJOURNMENT Hearing no further business before the City Council, the meeting was adjourned at 10:24 p.m. The next regular meeting of the City Council is scheduled to be held on Monday, November 08, 2021 beginning at 7:00 p.m. in the City Council Chamber at City Hall, 2 Portuguese Bend Road, Rolling Hills, California. It will also be available via City’s website link at: https://www.rolling-hills.org/government/agenda/index.php Respectfully submitted, ____________________________________ Elaine Jeng, P.E. Acting City Clerk Approved, ________________________________ Bea Dieringer Mayor 10 Agenda Item No.: 4.B Mtg. Date: 11/08/2021 TO:HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM:CONNIE VIRAMONTES , ADMINISTRATIVE ASSISTANT THRU:ELAINE JENG P.E., CITY MANAGER SUBJECT:PAYMENT OF BILLS. DATE:November 08, 2021 BACKGROUND: None. DISCUSSION: None. FISCAL IMPACT: None. RECOMMENDATION: Approve as presented. ATTACHMENTS: PaymentofBills.pdf 11 12 Agenda Item No.: 4.C Mtg. Date: 11/08/2021 TO:HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM:ASHFORD BALL, SENIOR MANAGEMENT ANALYST THRU:ELAINE JENG P.E., CITY MANAGER SUBJECT:APPROVE AMENDED AGREEMENT WITH ALAN PALERMO CONSULTING TO EXTEND PROJECT MANAGEMENT SERVICES TO JUNE 30, 2022. DATE:November 08, 2021 BACKGROUND: In July 2019, the City Council engaged the services of Alan Palermo Consulting (APC) to manage capital improvement projects for Fiscal Year 2019-2020 for four projects. In September 2020, the City Council amended APC's contract to include additional projects. APC's project management contract expired on September 1, 2021. The remaining budget on the contract is $29,360 as of September 30, 2021. DISCUSSION: At the October 25, 2021 meeting, the City Council decided to extend APC's contract to end of the fiscal year June 30, 2022 using existing remaining funds to provide City staff assistance with capital improvement projects. The City Council expects to hold a strategic planning workshop in January 2022 to prioritize capital improvement projects. The City Council may revisit APC's contract to review the list of projects managed by APC after the anticipated January 2022 City Council strategic workshop. FISCAL IMPACT: The remaining budget of $29,360 on the contract will be funded from the Administration Departm ent contractual services. RECOMMENDATION: Approve amended agreement and direct the City Manager to execute the amended agreement. ATTACHMENTS: Second Amendment to Professional Services Agreement - Project Manager Alan Palermo- UNSIGNED.DOC Alan Palermo Agreement - Signed_July_2019.pdf Alan Palermo Service Agreement FINAL 2020.28.09.pdf 13 14 SECOND AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT THIS SECOND AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT (“Second Amendment”) is made and entered into this 1st day of November 2021 by and between the CITY OF ROLLING HILLS, a California municipal corporation (hereinafter the “CITY”), and Alan Palermo Consulting (hereinafter the “CONSULTANT”). R E C I T A L S A.On July 18, 2019, the City entered into a Professional Services Agreement with Consultant (“Agreement”) for project management services to assist with the following projects: 1) project/construction management of the bid and construction of tennis court improvements (American with Disabilities Act (“ADA”) and aesthetic improvements); 2) project management for the design of ADA improvements at the City Hall building; 3) project management for phase II of the sewer feasibility study; and 4) project management for the FY 2019/2020 annual signage and striping program; B.On September 14, 2020, City and Consultant amended the Agreement for the first time to expand the scope of work, extend the term, and increase the cost so that Consultant may provide services on the following projects: 1) project management for tennis court improvements (American with Disabilities Act (“ADA”) and aesthetic improvements); 2) project management for the design of ADA improvements per the City’s transition plan; 3) project management for design of 8” sewer main along Portuguese Bend Road/Rolling Hills Road; 4) project management for Block Captain Program communications project; 5) project management for securing per capital program funded through the Parks and Water Bond Act of 2018 (Proposition 68); and 6) project management for implementing the Fire Prevention through Power Line Undergrounding Project 0526 funded by FEMA’s Hazard Mitigation Grant Program (“First Amendment”) (the “First Amendment”); C.City and Consultant now desire to amend the Agreement for the second time to extend the term of the agreement to June 30, 2022 (the “Second Amendment”). D.Consultant is well qualified by reason of education, training, and experience; and E.Consultant is willing to render such services on the terms and conditions as hereinafter defined. NOW, THEREFORE,in consideration of the foregoing and the covenants and agreements set forth below, City and Consultant agree as follows: 15 1.Paragraph 9 (TERM OF CONTRACT) of the Agreement is amended to read as follows: 9.TERM OF CONTRACT This Agreement shall be valid until June 30, 2022 unless extended by the parties in writing by written amendment to this Agreement or terminated earlier by the parties pursuant to Section 10 of this Agreement. 2.All terms and conditions of the Agreement not amended by the First Amendment and this Second Amendment remain in full force and effect. IN WITNESS WHEREOF, the Parties hereto have executed this Second Amendment on the date and year first above written, and it is effective as of August 31, 2021. CITY OF ROLLING HILLS ALAN PALERMO CONSULTING __________________________ __________________________ ELAINE JENG, City Manager ALAN PALERMO DATE:___________ DATE:_____________ ATTEST: __________________________ CITY CLERK APPROVED AS TO FORM: __________________________ MICHAEL JENKINS CITY ATTORNEY 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 Agenda Item No.: 4.D Mtg. Date: 11/08/2021 TO:HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM:ASHFORD BALL, SENIOR MANAGEMENT ANALYST THRU:ELAINE JENG P.E., CITY MANAGER SUBJECT:APPROVE A PROFESSIONAL SERVICE AGREEMENT WITH WORLDWISE PRODUCTIONS FOR EDUCATIONAL VIDEOS ON MANAGING VEGETATION IN THE CANYONS FOR AN AMOUNT NOT- TO-EXCEED $24,950. DATE:November 08, 2021 BACKGROUND: In April 2021, the City Council engaged Worldwise Productions LLC (Worldwise) to produce educational videos on home hardening. The project was led by the Lead Block Captains Gene Honbo and Block Captain Debra Shrader. Five videos were produced and at the May 24, 2021 City Council meeting, staff showcased the finalization of the videos. These videos have been used with the intention to educate the community and motivate current homeowners to harden their homes. As of June 25, 2021, just over one month after official release, the home hardening educational videos received a total of 407 views. One of the action items that the Fire Fuel Committee discussed is to produce educational videos to help the community understand the appropriate ways to manage fuel in the canyons. DISCUSSION: At the City Council meeting on October 25, 2021 lead Block Captain Gene Honbo presented his storyboard of the new videos with intentions to provide education to the community of "Fuel Load Management in the Canyons". The proposal included three days of shooting: aerial shots, shots in the canyons, and some of the hallows. Deputy Forrester Trevor Moore of the Los Angeles County Fire Department will be involved in the video providing support on the content. The Council proceeded to approve the proposal by WorldWise Productions for cost not to exceed $25,000. Accordingly, the City Attorney's office prepared a Professional Service Agreement to engage WorldWise Productions for services. FISCAL IMPACT: There is sufficient budget in the Administration Department to engage WorldWise Productions to produce educational videos on fire fuel management in the canyons for amount not to exceed $24,950. 39 RECOMMENDATION: Approve a professional service agreement with Worldwise Productions and direct the City Manager to execute the agreement. ATTACHMENTS: Canyon Management Videos Proposal.PDF PSA with Worldwise for Canyon Management Video.DOCX 40 Page 1 of 4 WORLDWISE RECYCLES PLEASE RECYCLE TOO Jinah Kim WorldWise Productions 1829 Seasons St Simi Valley, CA 93065 October 8, 2021 Elaine Jeng City Manager City of Rolling Hills 2 Portuguese Bend Rd. Rolling Hills, CA 90274 Dear Elaine, Thank you very much for giving WorldWise Productions the opportunity to partner with your city in creating a public education video about canyon management. As the producer of thousands of training, educational and marketing videos for large public agencies and corporate clients nation-wide, we come with years of relevant and professional experience that will benefit your project. Based on what we discussed, we estimate the following: Canyon Management – Educational Videos SCOPE • Consult with client to understand the goals of the video. • Create a clear, informative video script with visual references. • Schedule shoot, talent and crews. • Shoot high-quality, professional video on-site in Rolling Hills. • Produce 7 videos, each up to 3 minutes in length on a variety of topics about canyon management. • WWP to incorporate motion graphics to create informative, engaging videos. • First draft of videos will be delivered to client via private website link. • Client is entitled to one round of editing revisions per video. * • If revisions are requested, we will make the edits and deliver version 2 of each video. • Once the final videos are approved, we will send downloadable video files. 6341 Page 2 of 4 WORLDWISE RECYCLES PLEASE RECYCLE TOO Pre-Production 1. Script writing, research: $3,000 2. Site survey: $350 3. 10 hours pre-production: $600 • Includes pre-interviews, calls, research, scheduling, concept creation, etc. Production 1. 2 full shoot days – (up to 10 hours from arrival to departure): $5,000 a. Videographer, 4K camera package, light package, basic audio: $1,600/day b. Producer / Director / Script Supervisor / Talent Coach: $750/day c. Teleprompter rental: $300 (one day) 2. 1 full aerial shoot day – (up to 10 hours from arrival to departure: a. Drone videography, 4K camera (FAA licensed): $850 b. Producer / Director: COMP Post-Production 1. 14 days video editing: $13,300 2. 10 hours motion graphics: $2,000 3. Copyright-free music: $700 4. Closed captioning: $350 Total production estimate: $26,150 Courtesy discount: -$1,200 Total cost: $24,950 The shoot includes: On-camera direction and coaching. HD camera package, all necessary gear, basic lights and audio. Professional and experienced production crew. Light hair & makeup. Full day is 10 hours from arrival to departure. The edit includes: Ingesting of all raw footage into digital files, color correction, audio mixing, graphics incorporation. The first edits will be delivered to client online for review. The link to the videos can be emailed to as many stakeholders as needed. 6442 Page 3 of 4 WORLDWISE RECYCLES PLEASE RECYCLE TOO *The client is then entitled to one editing revision of each video, free of charge. This complimentary edit does not apply to script and content that were approved prior to production, or to any changes that would be considered out-of-scope of the original project parameters. Those, and additional revisions will be billed at $150 per hour. Once the videos are approved and finalized, the client receives the final products on a computer- and-web-friendly HD format (.mov, mp4, etc..). Overtime beyond 10 hours for the shoots will be billed at time-and-a-half per crew member. 6543 PROFESSIONAL SERVICES AGREEMENT THIS PROFESSIONAL SERVICES AGREEMENT, is made and entered in the City of Rolling Hills, California on November 1, 2021 by and between the CITY OF ROLLING HILLS, a municipal corporation, hereinafter referred to as "CITY," and WORLDWISE PRODUCTION, LLC, a limited liability company, hereinafter referred to as “CONSULTANT.” RECITALS A.CITY desires to engage CONSULTANT to produce educational videos about canyon management in response to wildfire risks within the community; and B.CONSULTANT is well qualified by reason of education, training, and experience to perform such services; and C.CITY does not have the personnel able and available to perform the services required under this Agreement; and D.CONSULTANT is willing to render such professional services as hereinafter defined. NOW, THEREFORE, for and in consideration of the mutual covenants and conditions herein contained, CITY hereby engages CONSULTANT and CONSULTANT agrees to perform the services set forth in this Agreement: 1.SCOPE OF WORKS CONSULTANT shall perform all work necessary to complete in a manner satisfactory to CITY the services set forth in the scope of work attached as Exhibit A and incorporated herein by reference except that, to the extent that any provision in Exhibit A conflicts with this Agreement, the provisions of this Agreement govern. The first edit of the video identified in scope of work shall be produced to CITY by _____________. The final product of the video identified in the scope of work shall be produced to CITY by ___________ (the “Deliverable”). 2.CITY RESPONSIBILITIES CITY shall provide information and documents as may be reasonably necessary to assist with the performance of the obligations by CONSULTANT under this Agreement. 3.COST CITY agrees to pay CONSULTANT for the services required by this Agreement an amount not to exceed twenty four thousand dollars nine hundred and fifty dollars ($24,950), inclusive of all expenses and travel, and as set forth in Exhibit A. Any increase in the Agreement amount or scope shall be approved by express written amendment to 44 this Agreement executed by CITY and CONSULTANT. Upon full execution of the Agreement and presentation of an invoice, 50% of the cost will become due in accordance with Section 4 of this Agreement. The remaining cost will become due upon delivery of the final product and presentation of an invoice in accordance with Section 4. 4.METHOD OF PAYMENT CONSULTANT shall submit an invoice in duplicate and addressed to the CITY OF ROLLING HILLS, CITY MANAGER, 2 Portuguese Bend Road, Rolling Hills, CA 90274 on a monthly basis for the services performed in the preceding month. Each invoice shall itemize the services performed. CITY shall remit payment for undisputed amounts within thirty (30) days of receiving an invoice. 5.SUBCONTRACTING CONSULTANT shall not be permitted to subcontract any portion of this Agreement without the express written consent of CITY. 6.COMMENCEMENT OF WORK CONSULTANT shall commence work under this Agreement upon execution of this Agreement. All activities performed by the Consultant shall be coordinated with the City Manager and are subject to approval by the City Manager which approval shall not be unreasonably withheld. 7.RECORDS CONSULTANT must maintain the documents and communications arising from performance of its obligations under this Agreement at CONSULTANT’s California office during this Agreement period and thereafter for five years from the date of final payment. 8.WARRANTIES AND LIMITATIONS CONSULTANT represents and warrants to CITY that the Deliverable created by CONSULTANT shall be original work and shall not infringe upon the intellectual property rights of any third party. CITY represents and warrants to CONSULTANT that it has the right to use any trademark, content, or other intellectual property that has been provided by CITY to CONSULTANT for use in the Deliverable. 9.OWNERSHIP OF RECORDS All records, data, documents, and other material prepared under this Agreement shall become the property of CITY. CONSULTANT is creating the Deliverable as a work made for hire and agrees that all intellectual property rights associated with the Deliverable, including without limitation, all copyright and associated rights, will be owned by CITY upon the payment of the fees pursuant to this Agreement. Such ownership includes, without limitation, the world wide right to display, use, distribute, 45 stream, modify, copy, license, sub-license, merchandise, and create derivative works of the Deliverable in tangible and digital form. CONSULTANT will execute such documents as may reasonably be requested by CITY to evidence the ownership of all intellectual property rights. CITY shall not be obligated to designate or credit CONSULTANT as the creator of the Deliverable. The Deliverable is being provided by CONSULTANT in requested digital file formats (such HD format .mov, mp4, etc.) that will be readable by software that is compatible with such formats and will not contain any proprietary software or source code of CONSULTANT. Following the delivery of the Deliverable to CITY, CONSULTANT shall not make any use of the Deliverable, provided, however, that CONSULTANT may make use of a sample of the Deliverable that has been approved by CITY in advance for display in CONSULTANT’s portfolio of work to show other potential customers. At the same time as the delivery of the Deliverable, CONSULTANT shall also deliver all of the raw footage captured under this Agreement. Thereafter, CONSULTANT shall delete all copies of the Deliverable and the raw footage with the exception of the sample of the Deliverable that has been approved by the CITY in advance for display in CONSULTANT’s portfolio of work to show other potential customers. 10.TERM OF AGREEMENT This Agreement shall be valid for one (1) year upon the full execution of this Agreement. Extension of the term of this Agreement shall be made in writing and agreed upon by CITY and CONSULTANT through written amendment to this Agreement. 11.TERMINATION Either party may terminate this Agreement without cause upon thirty (30) days written notice to the other party. The effective date of termination shall be upon the date specified in the notice of termination or, in the event no date is specified, upon the thirtieth (30th) day following delivery of notice. The termination without cause of this Agreement shall not terminate the parties’ rights and obligations with respect to work and work product provided during the term of this Agreement or any extension thereof. Should the Agreement be breached in any manner, the non-breaching party may, at its option, terminate the Agreement not less than five (5) days after written notification is received by the breaching party to remedy the violation or within any other time period agreed to by the parties. 12.ASSIGNABILITY CONSULTANT shall not assign or transfer interest in this Agreement without the prior written consent of CITY. 13.AMENDMENT 46 It is mutually understood and agreed that no alteration or variation of the terms of this Agreement, or any subcontract requiring the approval of CITY, shall be valid unless made in writing, signed by the parties hereto, and approved by all necessary parties. 14.NON-SOLICITATION CLAUSE CONSULTANT warrants that he or she has not employed or retained any company or persons, other than a bona fide employee working solely for CONSULTANT, by any fee, commission, percentage, brokerage fee, gifts, or any other consideration, contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, CITY shall have the right to annul this Agreement without liability or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift, or other consideration. 15.INDEMNITY CONSULTANT shall indemnify, defend with counsel approved by CITY, and hold harmless CITY, its officers, officials, employees, and volunteers from and against all liability, loss, damage, expense, cost (including without limitation reasonable attorneys’ fees, expert fees, and all other costs and fees of litigation) of every nature arising out of or in connection with CONSULTANT’s performance of work hereunder or its failure to comply with any of its obligations contained in this AGREEMENT. Should CITY in its sole discretion find CONSULTANT’s legal counsel unacceptable, then CONSULTANT shall reimburse CITY its costs of defense, including without limitation reasonable attorneys’ fees, experts fees, and all other costs and fees of litigation. CONSULTANT shall promptly pay any final judgment rendered against CITY (and its officers, officials, employees, and volunteers) with respect to claims determined by a trier of fact to have been CONSULTANT’s allocated share of liability. It is expressly understood and agreed that the foregoing provisions are intended to be as broad and inclusive as is permitted by the law of the State of California and will survive termination of this Agreement. 16.INSURANCE A.Without limiting CONSULTANT’S obligations arising under paragraph 15 - Indemnity, CONSULTANT shall not begin work under this Agreement until it obtains policies of insurance required under this section. The insurance shall cover CONSULTANT, its agents, representatives, and employees in connection with the performance of work under this Agreement, and shall be maintained throughout the term of this Agreement. Insurance coverage shall be as follows: i.Automobile Liability Insurance with minimum coverage of $300,000 for property damage, $300,000 for injury to one person/single occurrence, and $300,000 for injury to more than one person/single occurrence. If CONSULTANT or CONSULTANT’s employees will use personal automobiles in any way on this project, CONSULTANT shall obtain evidence of personal automobile liability coverage for each such person and promptly provide it to CITY before such person performs work under this 47 Agreement. In addition, if CONSULTANT obtains CITY’s written consent to hire a subcontractor, CONSULTANT shall also obtain evidence of personal automobile liability coverage for each such person and promptly provide it to CITY before such person performs work under this Agreement. ii.General Liability insuring CITY its elected and appointed officers, employees, agents, and volunteers from claims for damages for personal injury, including death, as well as from claims for property damage which may arise from CONSULTANT’S actions under this Agreement, whether or not done by CONSULTANT or anyone directly or indirectly employed by CONSULTANT. Such insurance shall have a combined single limit of not less than $1,000,000. In addition, if CONSULTANT obtains CITY’s written consent to hire a subcontractor, CONSULTANT shall insure CITY its elected and appointed officers, employees, agents, and volunteers from claims for damages for personal injury, including death, as well as from claims for property damage which may arise from such subcontractor’s actions. iii.Worker’s Compensation Insurance for all CONSULTANT’S employees to the extent required by the State of California. In addition, if CONSULTANT obtains CITY’s written consent to hire a subcontractor, CONSULTANT shall also require every subcontractor to similarly maintain Worker’s Compensation Insurance in accordance with the laws of the State of California for all of the subcontractor’s employees. Any notice of cancellation or non-renewal of all Workers’ Compensation policies must be received by CITY at least thirty (30) days prior to such change. The insurer shall agree to waive all rights of subrogation against CITY, its officers, employees, agents, and volunteers for losses arising from work performed by CONSULTANT for CITY. This provision shall not apply if CONSULTANT has no employees performing work under this Agreement. If CONSULTANT has no employees for the purposes of this Agreement, CONSULTANT shall sign the “Certificate of Exemption from Workers’ Compensation Insurance” which is attached hereto and incorporated herein by reference as “Exhibit B.” iv.Professional Liability Coverage. CONSULTANT shall maintain professional errors and omissions liability insurance for protection against claims alleging negligent acts, errors, or omissions which may arise from CONSULTANT’s operations under this Agreement, whether such operations be by CONSULTANT or by its employees or subcontractors. The amount of this insurance shall not be less than one million dollars ($1,000,000) on a claims-made annual aggregate basis or a combined single limit per occurrence basis. B.Deductibility Limits for policies referred to in subparagraphs A (i) - (iii) shall not exceed $5,000 per occurrence. C.Endorsements. Each general liability and automobile liability insurance policy shall be issued by insurers possessing a Best’s rating of no less than A-: VII. Each general liability and automobile liability insurance policy shall be endorsed with the 48 language of Sections (i) – (vi) below. CONSULTANT also agrees to require all subcontractors to do likewise. i.Additional Insured Clause. “The CITY, its elected or appointed officers, officials, employees, agents, and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the CONSULTANT.” ii.Primary Insurance Clause. This policy shall be considered primary insurance as respect to CITY, its elected or appointed officers, officials, employees, agents, and volunteers. Any insurance maintained by CITY, including any self-insured retention CITY may have, shall be considered excess insurance only and shall not contribute to this policy. iii.Separation of Insured Clause. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv.Failure to Report to Insurer. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to CITY, its elected or appointed officers, officials, employees, agents, or volunteers v.Waiver of Right to Subrogation Clause. CONSULTANT, and its insurer through endorsement, waives all rights of subrogation against CITY, its elected or appointed officers, officials, employees, agents, and volunteers regardless of the applicability of any insurance proceeds, and CONSULTANT agrees to have all subcontractors, and subcontractors’ insurers through endorsement, to do likewise. vi.Notice of Change in Insurance. The insurance provided by this policy shall not be suspended, voided, or reduced in coverage or limits except after thirty (30) days’ written notice has been submitted to CITY and approved of in writing, except in the case of cancellation, for which ten (10) days’ written notice shall be provided. D.Notice to CITY. CONSULTANT agrees to provide immediate notice to CITY of any claim or loss against CONSULTANT arising out of the work performed under this Agreement. CITY assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve CITY. CONSULTANT also agrees to provide immediate written notice to CITY if any insurance policy listed above is suspended, voided, or reduced in coverage or limits. CONSULTANT agrees to have all subcontractors do likewise. E.Claims-made policies. Should any of the required insurance be provided under a claims-made form, CONSULTANT shall maintain such coverage continuously throughout the term of this Agreement and, without lapse, for a period of three years beyond the expiration of this Agreement, to the effect that should occurrences during the Agreement term give rise to claims made after expiration of the Agreement, such claims shall be covered by such claims-made policies. 49 F.Defense costs. Should any of the required insurance be provided under a form of coverage that includes a general annual aggregate limit or provides that claims investigation or legal defense costs be included in such general annual aggregate limit, such general aggregate limit shall double the occurrence or claims limits specified above. G.Acknowledgment of the Minimum Amount of Coverage. Notwithstanding the provisions included in any of the ISO Additional Insured Endorsement forms, CONSULTANT acknowledges that the insurance coverage and policy limits set forth in this section constitute the minimum amounts of coverage required. Any insurance proceeds available to CITY in excess of the limits and coverage required in this Agreement and which is applicable to a given loss will be available to CITY. H.Self Insured Retention/Deductibles. All policies required by this Agreement shall allow CITY, as additional insured, to satisfy the self-insured retention (“SIR”) and/or deductible of the policy in lieu of CONSULTANT (as the named insured) should CONSULTANT fail to pay the SIR or deductible requirements. The amount of the SIR or deductible shall be subject to the approval of the City Attorney and the Finance Director. CONSULTANT understands and agrees that satisfaction of this requirement is an express condition precedent to the effectiveness of this Agreement. Failure by CONSULTANT as primary insured to pay its SIR or deductible constitutes a material breach of this Agreement. Should CITY pay the SIR or deductible on CONSULTANT’s behalf upon CONSULTANT’s failure or refusal to do so in order to secure defense and indemnification as an additional insured under the policy, CITY may include such amounts as damages in any action against CONSULTANT for breach of this Agreement in addition to any other damages incurred by CITY due to the breach. I.Certificates of Insurance. CONSULTANT shall provide certificates of insurance with original endorsements to CITY as evidence of the insurance coverage required herein. Certificates of such insurance shall be filed with CITY on or before commencement of performance of this Agreement. Current certification of insurance shall be kept on file with CITY at all times during the term of this Agreement. J.Failure to Procure Insurance. Failure on the part of CONSULTANT to procure or maintain required insurance shall constitute a material breach of this Agreement under which CITY may terminate this Agreement. 17.NOTICE All Notices permitted or required under this Agreement shall be in writing and shall be deemed made when delivered to the applicable party’s representative as provided in this Agreement. Additionally, such notices may be given to the respective parties at the following addresses or at such other addresses as the parties may provide in writing for this purpose. Such notices shall be deemed made when personally delivered or when mailed forty-eight (48) hours after deposit in the U.S. mail, first-class postage prepaid, and addressed to the party at its applicable address. 50 CITY: City of Rolling Hills 2 Portuguese Bend Road Rolling Hills, California 90274. Attention: City Manager, Elaine Jeng, PE CONSULTANT: Worldwise Productions, LLC 1829 Seasons Street Simi Valley, CA 93065 Attention: Jinah Kim 18.ENFORCEMENT OF AGREEMENT In the event that legal action is commenced to enforce or declare the rights created under this Agreement, the prevailing party shall be entitled to an award of costs and reasonable attorney’s fees in the amount to be determined by the court. 19.CONFLICTS OF INTEREST No member of the governing body of CITY and no other officer, employee, or agent of CITY who exercises any functions or responsibilities in connection with the planning and carrying out of the program shall have any personal financial interest, direct or indirect, in this Agreement; and CONSULTANT further covenants that in the performance of this Agreement, no person having any such interest shall be employed. 20.INDEPENDENT CONTRACTOR CONSULTANT is and shall at all times remain as to CITY a wholly independent contractor. Neither CITY nor any of its agents shall have control over the conduct of CONSULTANT or any of CONSULTANT’s employees, except as herein set forth. CONSULTANT shall not at any time or in any manner represent that it or any of its agents or employees are in any manner agents or employees of CITY. 21.PERSONNEL CONSULTANT represents that it has, or will secure at its own expense, all personnel required to perform the services under this Agreement. All of the services required under this Agreement will be performed by CONSULTANT or under its supervision, and all personnel engaged in the work shall be qualified to perform such services. CONSULTANT reserves the right to determine the assignment of its own employees to the performance of CONSULTANT’s services under this Agreement, but CITY reserves the right, for good cause, to require CONSULTANT to exclude any employee from performing such services. 51 22.CONFIDENTIALITY CONSULTANT in the course of its duties may have access to confidential data of CITY, CITY officers, employees, agents, or volunteers, or private individuals. CONSULTANT covenants that all data, documents, discussion, or other information received by CONSULTANT or provided for performance of this Agreement are deemed confidential and shall not be disclosed by CONSULTANT without written authorization by CITY. CITY shall grant such authorization if disclosure is required by law. CONSULTANT’s covenant under this section shall survive the termination of this Agreement. 23.ENTIRE AGREEMENT OF THE PARTIES This Agreement supersedes any and all other agreements, either oral or in writing, between the parties hereto with respect to retaining CONSULTANT by CITY and contains all the covenants and agreements between the parties with respect to such retention in any manner whatsoever. Each party to this Agreement acknowledges that no representations, inducements, promises, or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein, and that no other agreement or amendment hereto shall be effective unless executed in writing and signed by both CITY and CONSULTANT. 24.GOVERNING LAW This Agreement shall be governed by and construed in accordance with the laws of the State of California and all applicable federal statutes and regulations as amended. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives as of the date of the signature of the parties below. CITY OF ROLLING HILLS WORLDWISE PRODUCTIONS, LLC ___________________________ ___________________________ ELAINE JENG, CITY MANAGER JINAH KIM DATE:___________________________ DATE:___________________________ ATTEST: _________________________________ CITY CLERK 52 APPROVED AS TO FORM: _________________________________ MICHAEL JENKINS, CITY ATTORNEY 53 EXHIBIT A SCOPE OF WORK 54 EXHIBIT B Certificate of Exemption from Workers’ Compensation Insurance TO:City of Rolling Hills SUBJECT:Sole Proprietor/Partnership/Closely Held Corporation with No Employees Please let this memorandum notify the City of Rolling Hills that I am a sole proprietor partnership nonprofit organization closely held corporation and do not have any employees whose employment requires me to carry workers’ compensation insurance. Therefore, I do not carry worker’s compensation insurance coverage. CONSULTANT Signature ____________________________ Printed Name of CONSULTANT ____________________________ Date 55 Agenda Item No.: 4.E Mtg. Date: 11/08/2021 TO:HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM:ASHFORD BALL, SENIOR MANAGEMENT ANALYST THRU:ELAINE JENG P.E., CITY MANAGER SUBJECT:APPROVE MINOR CORRECTIONS AND ADDITION TO THE EMPLOYEE HANDBOOK AND PERSONNEL POLICY MANUAL. DATE:November 08, 2021 BACKGROUND: At the October 11, 2021 meeting, the City Council approved updates to Employee Handbook and Personnel Manual with one minor correction. The length of employee probationary period was changed from six months to 12 months. This change was not captured in Chapter VI Benefits page 19 sections 2A and 2B. DISCUSSION: Subsequent to the City Council action, staff prepared the updated handbook for distribution to all employees and discovered that the vacation accrual rate for employees with less than three years of employment was not listed. The referenced accrual rate was accidently removed during the update of the handbook. Staff worked with legal counsel to reinstate the vacation accrual rate (5/6 of a day per month) for employees with less than three years of employment. FISCAL IMPACT: None. RECOMMENDATION: Approve as presented. ATTACHMENTS: Rolling Hills Employee Handbook- FINAL 11.1.2021 FOR 11.08.2021 Approval.PDF 56 CITY OF ROLLING HILLS EMPLOYEE HANDBOOK AND PERSONNEL POLICY MANUAL Update: November 8, 2021 57 2 INTRODUCTION Welcome to the City of Rolling Hills! We trust you will find working for the City professionally challenging, an excellent career opportunity, a positive experience and an environment that strives to provide a work / life balance. The City prides itself on excellent customer service, the highest level of professionalism, being responsive and communicative, maintaining a small-town, rural atmosphere, and sustaining the privacy of the community. City staff are committed to public service, excellence and efficiency in the provision of services, the ICMA Code of Ethics, and the principles of democracy and professional management afforded by the Council-Manager form of government. As a member of the City team, we look forward to your positive contributions in these areas. This handbook has been developed to provide new staff persons with important introductory information regarding the City’s personnel benefits and policies on matters relevant to all employees. On subjects not included in this handbook, please ask the City Manager or the Human Resources Director. Updates to the policies herein will be provided in separate announcements throughout your career with the City. CITY ORGANIZATION The City of Rolling Hills is a “contract city” that operates under the Council-Manager form of government. As a contract city, Rolling Hills contracts with the Los Angeles County Sheriff Department (Lomita Station) and Building & Safety Department (Lomita Office) for police and building permit services, respectively. Fire protection, water, electricity, natural gas, and road maintenance are also the responsibility of other non-City agencies. Under the Council-Manager form of government, the City is governed by five Council members who are elected at-large in municipal elections held every two years. City Council terms are staggered so that in one election, three members will be elected and in the next election, two members will be elected. The City Council hires a City Manager who is responsible for day-to-day operations of the City, implementing City Council policy and all aspects of staff supervision. The City Council also hires a City Attorney for legal counsel. Rolling Hills is a “general law” city and, as such, its authority is established under the California State Constitution. The City has an adopted Municipal Code that contains the ordinances of the City. UNIQUE FEATURES OF THE CITY OF ROLLING HILLS Rolling Hills is a private, gated community under the rules and regulations of two separate and unrelated agencies, the City of Rolling Hills and the Rolling Hills Community Association (RHCA). The RHCA has authority and responsibility for road maintenance, access into the City, architectural review, and all easements and trails. Under the auspices of the RHCA, the roads in the City are not public. They are private property maintained by the RHCA. The City of Rolling Hills, in contrast, is responsible for land use regulation, building permits, environmental issues, traffic safety (e.g., roadway striping and signage), law enforcement through a contract with the Sheriff’s Department, 58 3 emergency preparedness, municipal elections, and other typical city functions. Approximately 75% of the City’s revenues derive from property taxes with the remaining 25% basically from building permits. Rolling Hills is also a residential community with no business or industrial activities. The community consists of only one-story, ranch-style, single-family homes. Properties are typically one or two acres. Each lot is required to have a barn and corral or area designated for a barn and corral. There are a total of twenty-three miles of equestrian and hiking trails. Some trails are connected to trails in the Palos Verdes Peninsula Land Conservancy or other peninsula-wide trails. There is also no leash law; dogs are free to roam throughout the community. These characteristics are intended to maintain the integrity and identity of Rolling Hills as a rural community. As a City team member, it is important to understand the distinction between the City and RHCA in order to provide residents and the public with the best customer service. IN ROLLING HILLS, SERVICE IS THE BUSINESS! Local government is a service-oriented and public profession. City employees directly connect with the public in many different ways. In Rolling Hills, it is an expectation that members of the City team maintain a pleasant, friendly, and cooperative demeanor to each other and in all capacities when working and communicating with the public. Care should be taken to act in a professional and respectful, courteous manner at all times, for example, on the telephone, in written communications (emails and letters), and during encounters in public settings (at meetings, the public counter, and events). City staff must keep in mind that they are ambassadors of the City and represent the organization. With service as our business, it is the responsibility of City staff to be responsive and helpful to residents and assist the public. In that capacity, City staff also has the responsibility to exercise sound judgment and appropriate discretion to circumstances and situations. 59 4 TABLE OF CONTENTS Chapter Title Page I Purpose and Application ................................................................. 5 II Definition of Terms .......................................................................... 6 III General Provisions........................................................................ 10 IV Classification ................................................................................. 12 V Compensation ............................................................................... 14 VI Benefits ......................................................................................... 18 VII Hours of Work ............................................................................... 22 VIII Applications and Applicants .......................................................... 23 IX Examinations ................................................................................ 26 X Employment Eligibility Lists .......................................................... 28 XI Method of Filling Vacancies .......................................................... 29 XII Probationary Period ...................................................................... 30 XIII Attendance and Leaves ................................................................ 31 XIV Holidays ........................................................................................ 39 XV Changes in Employment Status.................................................... 41 XVI Separation from Employment ....................................................... 42 XVII Reports and Records .................................................................... 44 XVIII Grievance Procedures .................................................................. 46 XIX Discipline....................................................................................... 48 XX Performance Evaluations and Annual Work Plans ....................... 51 XXI Vehicle Use ................................................................................... 53 XXII Professional Development ............................................................ 54 XXIII Employee Standards of Conduct .................................................. 55 60 5 CHAPTER I PURPOSE AND APPLICATION Section 1. Purpose: The purpose of the City of Rolling Hills Employee Handbook and Personnel Policy Manual is to establish lawful procedures for dealing with personnel matters. The personnel provisions set forth herein constitute the personnel rules and regulations for the City of Rolling Hills. Employees are expected to read this Handbook carefully, and to know and understand its contents. The City reserves the right to make changes to this Handbook at any time without prior notice. Employees’ at-will employment can only be changed by the City Council and by written agreement signed by the employee and the City Manager. Except as otherwise provided in this Handbook, no one has the authority to make any promise or commitment contrary to what is in this Handbook. Employees are responsible for knowing about and understanding those changes once they have been disseminated. The City also reserves the right to interpret the provisions of this Handbook. This Handbook replaces all earlier Handbooks and supersedes all prior inconsistent policies, practices, and procedures. Section 2. Application: These rules apply to all employees of the City of Rolling Hills unless a specific rule or procedure indicates otherwise. Section 3. No Contract Created: These rules do not create any contract of employment, express or implied, or any right in the nature for a contract. Section 4. Handbook Acknowledgement: Employees should sign the acknowledgement form at the end of this Handbook and return it to the City Manager or Designee. This will provide the City with a record that each employee has received this Handbook. 61 6 CHAPTER II DEFINITION OF TERMS DEFINITION OF TERMS Unless the context indicates otherwise the following terms, whenever used in this document, shall be defined as follows: Advancement: A salary increase within the limits of the pay range established for the position. At-Will: All employment at the City is “at-will.” This means that both employees and the City have the right to terminate employment at any time, with or without advance notice, and with or without cause. Employees also may be demoted or disciplined and the terms of their employment may be altered at any time, with or without cause, at the discretion of the City. Only the City Council has the authority to alter this arrangement, to enter into an agreement for employment for a specified period of time, or to make any agreement contrary to this at-will status. Any such agreement must be in writing, must be signed by the employee and the City Manager, and must express a clear and unambiguous intent to alter the at-will nature of the employment relationship. Nothing contained in this Handbook or any other documents provided to employees is intended to be, nor should it be, construed as a guarantee that employment (or any benefit) will be continued for a specific time period. For example, any salary figures provided to an employee in annual or monthly terms are stated for the sake of convenience. They are not intended to create an employment contract for one or more months or years. Employees should ask the City Manager if they have any questions about their status as an employee at-will. City Manager’s Designee: The person assigned to the Human Resources function (Human Resources Director). Demotion: The movement of an employee from one class to another class having a lower maximum rate of pay. A demotion may be voluntary or involuntary. Domestic Partner: A domestic partnership is legally established in California when all of the following requirements are met: both persons file a Declaration of Domestic Partnership with the Secretary of State; both persons have a common residence; neither person is married to someone else or is a member of another domestic partnership with someone else that has not been terminated, dissolved, or adjudged a nullity; two persons are not related by blood in a way that would prevent them from being married to each other in another state; both persons are at least 18 years of age; 62 7 either of the following: (a) both persons are members of the same sex; or (b) one or both of the persons are over the age of 62, and meet certain eligibility criteria pursuant to the Social Security Act; and both persons are capable of consenting to the domestic partnership. Eligible: When used as a noun, means a person whose name is considered for appointment to a position. Employment Eligibility List: A list of one or more names of persons who are being considered for a position vacancy generated from candidate resumes, the results of an examination, or some other method of identifying eligible persons. Examinations: (a) Open-competitive examination: An examination for a particular position which is open to all persons meeting the qualifications for the class. (b) Promotional examination: An examination for a particular position, admission to the examination being limited to employees identified by the City Manager or Designee. (c) Continuous examination: An open competitive examination which is administered periodically and as a result of which names are placed on an employment list, in order of final scores, for a period of not more than one (1) year. Exempt: An employee not entitled to overtime compensation under the Fair Labor Standards Act. Job Classifications: For the purposes of the City’s personnel rules and regulations, each position title shall correspond to the City’s list of classifications and salary range. (a) Full-time Exempt: Various executive, administrative, and professional positions exempt from overtime requirements. (b) Full-time Non-Exempt: Positions subject to overtime requirements and working 37.5 hours per week. (c) Hourly Benefited: Positions known as regular part-time working twelve (12) months per year and an average of twenty (20) or more hours per week on a year-round basis. Benefits are provided to regular part-time employees on a pro-rated basis. 63 8 (d) Hourly Non-benefited: At-will positions also known as either seasonal part-time or part-time. These employees are sometimes referred to as “Temporary”. (e) Seasonal Part-time: A position utilized up to 37.5 hours per week on a seasonal or partial year basis, but not more than 1,000 hours per fiscal year. If an employee identified as seasonal part time works more than 1,000 hours in a fiscal year he or she does not acquire regular employee status. (f) Part-time: A position with an average of 19.5 hours or less per week and no more than 1,000 hours per fiscal year. If an employee identified as part time works more than 1,000 hours in a fiscal year he or she does not acquire regular employee status. Layoff: The involuntary separation of a regular status employee or reduction to a position in a lower classification because the position is no longer needed. Personnel Ordinance: City of Rolling Hills Municipal Code, Title 2, as amended from time to time. Probationary Period: A working test period during which an employee is required to demonstrate his or her fitness for the duties to which he or she is appointed by actual performance of the duties of the position. The probationary period or initial period of employment is considered a part of the examination process and shall be utilized for closely observing the employee’s work to determine the employee’s fitness for the position. Promotion: The movement of an employee from one position to another position having a higher maximum rate of pay and different job duties from the previous position. Provisional Appointment: A temporary appointment of a person who possesses the minimum qualifications established for a particular class, and who has been appointed to a position in the absence of available eligible personnel. This is sometimes referred to as an “Interim Appointment”. Reclassification: The change of a position from one position to another as a result of the gradual accretion or reduction of duties and/or responsibilities over time. Regular Employee: A full-time employee who has successfully completed his or her probationary period and has been retained as an employee. Regular Part-Time Employee: An employee who has successfully completed his or her probationary period. 64 9 Rejection: The separation of an employee from employment during the probationary period or examination process. Reinstatement: The re-employment, without examination, of a former regular employee. Temporary Employee: An employee who has been appointed to a full-time or part-time position of limited duration. Transfer: A change of an employee from one position to another position in having the same maximum salary limits, involving the performance of similar duties and responsibilities, and requiring the same qualifications. Y Rate: When an employee is moved to a different position with a lower salary range, the employee will retain his/her current salary until the salary of the new position has a maximum salary rate that is equal to or higher than the current salary. 65 10 CHAPTER III GENERAL PROVISIONS Section 1. Equal Employment Opportunity: It is the City’s policy to provide equal employment opportunity for all applicants and employees. The City does not unlawfully discriminate on the basis of race, color, religion, religious creed (including religious dress and religious grooming practices), sex (including pregnancy, perceived pregnancy, childbirth, breastfeeding, or related medical conditions), gender, gender identity (including transgender identity), gender expression (including transgender expression), because an individual has transitioned (to live as the gender with which they identify), is transitioning, or is perceived to be transitioning), sex stereotyping, national origin, ancestry, citizenship, age (40 years and over), mental disability and physical disability (including HIV and AIDS), legally protected medical condition or information (including genetic information), protected medical leaves (requesting or approved for leave under the Family and Medical Leave Act or the California Family Rights Act), military and/or veteran status, service, or obligation, reserve status, national guard status, marital status, domestic partner status, sexual orientation, status as a victim of domestic violence, sexual assault or stalking, enrollment in a public assistance program, engaging in protected communications regarding employee wages or otherwise exercising rights protected under the California Fair Pay Act, requesting a reasonable accommodation on the basis of disability or bona fide religious belief or practice, or any other basis protected by local, state, or federal laws. Consistent with the law, the City also makes reasonable accommodations for disabled applicants and employees; for pregnant employees who request an accommodation [with the advice of their health care providers] for pregnancy, childbirth, or related medical conditions; for employees who are victims of domestic violence, sexual assault, or stalking; and for applicants and employees based on their religious beliefs and practices. The City prohibits sexual harassment and the harassment of any individual on any of the other protected bases listed above. The City also prohibits retaliation against a person who reports or assists in reporting suspected violations of this policy, cooperates in investigations or proceedings arising from a violation of this policy, or engages in other activities protected under this policy. This policy applies to all areas of employment including recruitment, hiring, training, promotion, compensation, benefits, transfer, disciplinary action, and social and recreational programs. It is the responsibility of every manager and employee to conscientiously follow this policy. Any employee having any questions regarding this policy should discuss them with the City Manager’s Designee. 66 11 Section 2. Political Activity Prohibited: City employees shall not engage in political activities in violation of Government Code Section 3201 et seq. No one employed by the City may engage in political activities on City premises, while engaged in official duties, using City equipment, or wearing an official City uniform. Section 3. Outside Employment: No employee may hold outside employment that is incompatible with his/her City employment. Each regular employee who holds any other position in addition to City employment shall submit a written request to the City Manager prior to accepting such employment. Section 4. Employee Duties: Employees are required to carry out the primary duties and responsibilities of their employment. Section 5. Violation of Rules: Violation of the provisions of these rules shall be grounds for disciplinary action. Section 6. Amendment and Revision of Rules: Amendments and revisions to these rules must be recommended by the City Manager and approved by the City Council. Section 7. Employee Standards of Conduct and ICMA Code of Ethics: Employees are requested to be mindful of the ICMA Code of Ethics and uphold the intent of the tenets and guidelines of the Code. Employees are required to adhere to the Employee Standards of Conduct (Chapter XXIII). Section 8. Federal Taxes: Completion of appropriate IRS forms will be required of all personnel at the time of employment. The number of exemptions claimed will determine the amount of federal tax deductions. Section 9. Social Security: All employees, full and part time, will be required to have a Social Security number and/or meet other legal requirements including proof of citizenship or permanent residency status at the time of employment. Social Security deductions will be made according to established schedule provided by government agencies. 67 12 CHAPTER IV CLASSIFICATION Section 1. Classification Plan: The City of Rolling Hills has an established list of classifications as follows: Full-time Exempt City Manager Planning and Community Services Director City Clerk/Executive Assistant to the City Manager Senior Management Analyst Senior Planner Full-time Non-Exempt Administrative Assistant, City Clerk Department Code Enforcement Officer/Assistant Planner Hourly Non-Benefited Finance Director Human Resources Director Account Manager Part-time Planning Technician, Planning Department Each position in the City service is defined by specifications, including title, definition of the position, supervision received and exercised, a description of the duties and responsibilities of positions in each class, and the training, experience, and other qualifications to be required of applicants for positions in each class. Section 2. Adoption, Amendment, and Revision of Plan: The list of classifications may be amended from time to time by resolution of the City Council. Section 3. New Positions: When a new position is created, an employment eligibility list will be established before an appointment is made, unless the position is filled by a promotional appointment. Section 4. Classification Studies: Classification studies shall be conducted from time to time to determine if the duties and responsibilities of a position have substantively changed, have become inequitably aligned in relation to other classifications within the City service, and/or are otherwise incorrectly designated. The City Manager or Designee shall conduct the classification study and as a result, a position may be reclassified to a more appropriate classification, whether new or already authorized, at a higher or lower maximum salary level. 68 13 After conducting a classification study of the position(s), the City Manager will recommend classification changes, if any, to the City Council for approval. Section 5. Qualifying Examination: A reclassification with a title change that results in a salary increase above the old classification may require of the incumbent a qualifying examination to determine whether or not the incumbent possesses the minimum qualifications for the new class. The method for the qualifying examination shall be determined by the City Manager or Designee. It may be an interview, demonstration of skills and abilities, or a written examination. An incumbent proposed for a reclassification who does not pass the qualifying examination shall retain his or her original title until such time as he or she does pass the qualifying examination. An employee whose position is being reclassified upward and who has demonstrated competency for the position, need not take a qualifying examination. Section 6. Y-Rate: When a reclassification results in a lower maximum rate of pay for the incumbent, the incumbent shall be “Y-Rated” at the salary level he/she has earned up to that time. 69 14 CHAPTER V COMPENSATION Section 1. Compensation Plan: The City has established salary ranges covering all positions in the City service, showing the minimum and maximum rates of pay. The salary ranges can be found on the City’s website under the Finance Department. Section 2. Amendment of Plan: The compensation plan may be amended from time to time by action of the City Council. Section 3. Comprehensive Compensation Survey: A Comprehensive Compensation Survey will be conducted as needed, to assure that the City’s jobs are paid equitably against the labor market. The Survey will include each position and include labor market comparisons to: Carson El Segundo Hermosa Beach Hidden Hills La Habra Heights Lawndale Lomita Palos Verdes Estates Rancho Palos Verdes Rolling Hills Estates Signal Hill Section 4. Salary upon Initial Hire: The City Manager shall have the discretion to place the employee at a salary level within the salary range of the position into which the employee is hired. Section 5. Merit Advancement: The City Manager has the authority and discretion to adjust all regular and part-time employee salaries within their range at any time. The City Manager shall justify a salary change within the range with documentation and based on the performance and skill-level of the employee. Section 6. Evaluation: Each employee will be formally evaluated annually on the anniversary of his or her employment in regards to the employee’s performance of his or her work responsibilities. In the evaluation, the City Manager will consider and evaluate the employee’s salary for a potential merit advancement. If the evaluation is untimely and in the evaluation, the employee is deemed meritorious of a salary adjustment within the salary range, the employee will receive the increase retroactively. Performance evaluations and Annual Work Plans will be tracked by the City Manager or his or her Designee. 70 15 Section 7. Probationary Period: At the end of the probation period and annually thereafter on the anniversary date of hire, each employee will be evaluated by the City Manager with regard to work performance. An adjustment to the base salary within the salary range will be considered. Adjustments to the base salary are subject to the determination and approval of the City Manager; adjustments to the base salary upon completion of the probation period are not automatic. Section 8. Effective Date of Increase: Salary increases shall be effective the first day of the pay period following the approved effective date. Section 9. Salary on Promotion: An employee promoted to a position having a greater maximum salary will be placed at a salary that results in not less than a three and one-half percent (3.5%) increase above the employee’s current regular salary. The City Manager may establish the salary at a higher level within the range. Section 10. Salary on Demotion: An employee who is demoted will be placed within the salary range for the position into which demoted. The salary will be set at a level that is lower and closest to the salary the employee was receiving before the demotion. Section 11. Salary on Reclassification: An employee whose position title is changed but will be performing similar duties will receive the salary set forth below. (a) If the new position title maintains the same salary range, the salary will not change. (b) If the new position title has a higher salary range, at the discretion of the City Manager, the salary adjustment will be determined in the same manner as a promotion. (c) If the new position title has a lower salary range, the employee will be Y-rated. Section 12. Pay Periods: Employees shall be compensated by paycheck or electronic transfers every two weeks. Checks or electronic transfers in payment for compensation will be made available by the City to employees. Section 13. Bilingual Pay: The City does not provide a bilingual premium pay differential in addition to regular pay for employees who are requested by the City to use bilingual skills during their scheduled work hours on a recurring basis. Section 14. Overtime: (a) As a matter of general policy, the City does not permit employees to work overtime and will provide adequate staff to handle normal 71 16 operations. However, non-exempt employees may be required to work overtime at the discretion of the City Manager. (b) Overtime for non-exempt employees is defined as hours assigned to be worked and actually worked in excess of thirty-seven and one- half (37.5) hours in the designated work week. (c) Non-exempt employees working overtime when not expressly authorized to do so shall be subject to discipline. (d) Overtime assigned and worked by non-exempt employees shall be compensated at time and one-half their regular rate of pay. The employee may request, and the City Manager shall have the unrestricted discretion to approve or not approve, compensation in the form of accrued compensatory time at time and one-half pay, except an employee may not accrue more than thirty-seven and one- half (37.5) hours compensatory time at any time. (e) If a non-exempt employee is required to work on an observed holiday beyond the regular thirty-seven and one-half (37.5) hour work week, he or she shall be entitled to pay at the rate of two (2) times the regular rate of pay. (f) Employees who are exempt from the Fair Labor Standards Act (FLSA) are compensated on a salary basis and are not eligible for overtime. Section 15. Acting Pay: An employee who is provisionally appointed to an acting or interim position that is in a higher salary range than that of the position title in which the employee is normally assigned shall receive acting compensation. (a) Acting pay shall be provided only for appointments with duration greater than twenty-one (21) consecutive calendar days and shall be retroactive to the effective date of the acting appointment and continue until completion of appointment. (b) Such acting appointments shall be made in writing by the City Manager. (c) Compensation shall be at the entrance of the salary range of the acting position or a minimum of three and one-half percent (3.5%) higher than the employee receives, whichever is greater. Section 16. Cost of Living Adjustment (COLA): Annually, employees will receive a COLA in their salary or hourly rate based on the month of March, Los Angeles/Orange County/Riverside Consumer Price Index (CPI) for all items. The COLA will be applied to employee salaries or hourly rates 72 17 automatically not to exceed 3.5% on July 1 of every year based on the March CPI. On July 1 of every year, position salary ranges will also adjust automatically. The salary range will adjust based on the month of March, Los Angeles/Orange County/Riverside CPI for all items not to exceed 3.5%. Section 17. Exceptional Performance Recognition: The City’s program for recognizing an employee’s exceptional performance is described in Chapter XX. 73 18 CHAPTER VI BENEFITS Section 1. Retirement Plan: (a) The City is a member of the Public Employees Retirement System (PERS). Eligible Regular employees of the City hired prior to December 31, 2012 are enrolled in the 2%@60 retirement program. Under PERS Regulations, employees hired on or after January 1, 2013 and who are considered “Classic” employees will be enrolled in the 2%@60 retirement program. Eligible Regular employees of the City hired on or after January 1, 2013 are enrolled in the 2%@62 and 2.5%@67 retirement program consistent with State Assembly Bills 340 and 197 enacted September 12, 2012 and City Resolution No. 1136. All conditions of PERS apply to all eligible Regular employees of the City of Rolling Hills. (b) The pensionable compensation used to calculate the defined benefits paid to employees hired after December 31, 2012 will not exceed the maximum amount specified in the federal retirement system (United States Code Title 42 § 430(b), as may be amended from time to time); as adjusted annually based on changes to the Consumer Price Index for all Urban Consumers. (c) Regular employees hired after December 31, 2012 pay 100% of the employee portion of the retirement program or 50% of the “normal cost,” defined as that portion of the present value of projected benefits under the defined benefit plan that are attributable to the current year of service (also known as the “Member Contribution Rate as a percentage of payroll”), whichever is higher. Exercising its authority to implement the provisions of section 414(h)(2) of the Internal Revenue Code (IRC), all employee’s payments for the retirement program are tax deferred. For employees hired after December 31, 2012, the City is prohibited from making contributions greater than the amount specified in the federal retirement system. (d) The final compensation is the average full time monthly pay rate for the highest 36 consecutive months. If the service is coordinated with Social Security, the final compensation will be reduced according to State law. “Compensation” is defined as the normal monthly rate of pay or base pay for the employee for services rendered on a full-time basis during normal working hours, pursuant to the City’s pay schedule. It does not include pay for unused sick leave or time off or overtime pay. 74 19 (e) Employees are permitted to replenish their PERS out of their own funds, if they have chosen to remove those funds from PERS following termination of previous employment. (f) All employees, full and part time, are required to participate in the Social Security System. (g) Newly retired former employees, or employees of another PERS member, are required to sit out for at least 180 days before returning to work for the City to avoid forfeiture of their retired status. Such employees also cannot serve more than 960 hours in a calendar year. This subsection shall not apply to employees hired to fill a critically needed position, where the appointment has been approved by City Council in a public meeting. (h) Any public official or employee who is convicted of a felony related to performance of his or her official duties, related to seeking an elected office or appointment, in connection with obtaining benefits, or committed against a child who the official or employee has contact with as part of his or her official duties, forfeits all pension benefits earned or accrued after the date of the conviction. Section 2. Health and Life Insurance: (a) The City maintains Workers’ Compensation Insurance for work- related injuries. Group term life insurance, long-term disability insurance, health insurance, prescription drug, dental insurance, and vision insurance is also provided for all Regular Exempt and Non- Exempt full-time employees who have successfully completed their twelve month probationary period. (b) The City of Rolling Hills provides 100% of the single-party premium for health, dental, and vision insurance, inclusive of prescription drug coverages within the health plans, of each Regular employee who has successfully completed their probationary period. The City will pay 80% of the premium for the eligible dependents of Regular employees up to a maximum monthly family premium of $1,642.21 based on the 2015 rate for the Anthem Traditional HMO plan. The City will contribute up to a maximum monthly premium of $202 for dental insurance based on the 2015 rate for Met Life DPPO plan and up to a maximum monthly premium of $30 for vision insurance based on the 2015 rate for VSP plan1 following successful completion of the Regular employee’s probationary period. 1 Resolution 1249 sets the City’s monthly contribution to insurance premiums for the eligible dependents of regular employees for calendar year 2020, 2021, 2022 and 2023 as follows: (1) health insurance up to a maximum of $1,658.42; (2) dental insurance up to a maximum of $204.02; (3) vision insurance up to a 75 20 Information describing coverage is available from the Finance Department. (c) Through the implementation of an IRS compliant Section 125 plan, the City will provide Regular employees with the ability to withhold pre-tax income from his/her salary to pay his/her portion of insurance premiums. Section 3. Credit Union: (a) Applications are available to all employees for membership in the F & A Federal Credit Union. Automatic payroll deductions may be arranged. Section 4. Deferred Compensation and Employment Longevity Plan: (a) The City of Rolling Hills offers an employee funded deferred compensation program. Applications are available in the Finance Department. (b) According to the following schedule, effective July 1, 2009, the City of Rolling Hills will match employee contributions up to the IRS limit. Years of service City match to employee’s contribution (up to __% of salary) 0 - 1.99 0% 2 – 2.99 1% 3 – 5.99 2% 6 – 8.99 3% 9 – 11.99 4% 12 – 14.99 5% 15+ 6% Section 5. Other benefits: (a) The City provides single-party health coverage for its Regular employee retirees through PERS. Heath plan options and terms of the program are governed through the City’s contract with PERS. Regular employees hired after December 31, 2012 will be qualified to receive single-party retiree health coverage from the City providing 1) the Regular employee retires from the City of Rolling Hills and 2) maximum of $30.30. The maximum contribution for each policy will be increased by 2% for calendar year 2024 and beyond. 76 21 the Regular employee has been in the employment of the City of Rolling Hills for a minimum of 5 consecutive, uninterrupted years. (b) A surviving beneficiary of a current or former employee hired before January 1, 2013 will receive benefits through PERS, as appropriate to individual circumstances. The terms of these benefits are specified in the City’s contract with PERS. 77 22 CHAPTER VII HOURS OF WORK Full-time employees are assigned to the 9/75 flex plan under which they will work seventy- five (75) hours in a nine (9) day period. Section 1. The 9/75 Plan: Full-time employees work 37.5 hours over a 5-day workweek exclusive of meal periods as follows: Alternating Week 1 Alternating Week 2 Mon - Wed: 7:30am to 5:00pm Mon - Wed: 7:30am to 5:00pm Thursday: 7:30am to 5:00pm Thursday: 7:30am to 3:30pm Friday: 7:30am to 5:00pm Friday: off Section 2. Alternate Work Schedule: Full-time employees may be assigned to work days or hours other than those set forth in Section 1. Section 3. Work Week Defined: The work period or work week will begin at 12:01 p.m. on Friday and end the following Friday at 12:00 noon for all full-time employees working under the 9/75 work schedule if the employee is scheduled to be off every other Friday. Section 4. Work Week Schedule Change: The City may change the work week when public necessity or convenience so requires. Section 5. Request to Change Schedule: Employees for whom personal necessity requires a different schedule than above, may make a request for the alternate schedule to the City Manager. Alternate schedules must begin no earlier than 7:00 a.m. and end no later than 6:00 p.m. and will not include a shorter meal period than below. Section 6. Meal Period: Because City employees are public employees the sections of the California Labor Code regarding mandatory meal and rest periods are not applicable. Meal periods are non-paid and nonworking time and shall be one hour for all full-time employees. Every effort will be made to schedule such meal period during the middle of the shift. 78 23 CHAPTER VIII APPLICATIONS AND APPLICANTS Section 1. Announcement: All recruitments for positions shall be publicized by means as the City deems advisable. The announcements shall specify the title and pay of the position, duties and responsibilities of the work to be performed, minimum requirements established, the manner of making application, and other pertinent information. Section 2. Application: Applications shall be made as prescribed on the announcement. Application forms shall require information covering training, experience, and other pertinent information. All applications must be signed by the person applying. Section 3. Disqualification: The City Manager or Designee may reject any application which indicates on its face that the applicant does not possess the minimum qualifications required for the position or for any material cause which, in the judgment of the City Manager or Designee would render the applicant unsuitable for the position. Falsification of any information presented on the employment application shall be grounds for rejection/disqualification from the recruitment and/or termination from employment, if applicant is appointed to the position. Section 4. Prohibition Against Nepotism: It is the policy of the City to seek the best possible candidates through appropriate search procedures. The City seeks to eliminate or limit even the appearance of impropriety where possible. As such, the City has adopted the following policy regarding application and/or hiring of employee relatives. For purpose of this policy, “relative” shall mean a spouse, domestic partner, parent, parent-in-law, step-parent, legal guardian, sibling, step-sibling, sibling-in-law, child, step-child, child-in-law, legal ward, grandchild, or grandparent. Each applicant is required to disclose the identity of any relative who is a current employee. An applicant’s failure to disclose a relative who is a current employee may result in the rejection of the applicant or future disciplinary action against the applicant after employment, up to and including termination. Relatives of current employees shall not be hired into positions in which one relative may supervise, directly or indirectly, any other relative. One or more of the following roles, undertaken on a regular, acting, overtime, or other basis shall constitute direct or indirect supervision: 1. Occupying a position in an employee’s direct line of supervision; 79 24 2. Functional supervision, such as a lead worker, crew leader, or shift supervisor; or 3. Participating in personnel actions including, but not limited to, appointment, transfer, promotion, demotion, layoff, suspension, termination, assignments, approval of merit increases, evaluations, and grievance adjustments. Relatives of current employees shall not be hired into positions in which one relative may work in a capacity which would allow a current employee to evaluate or control the terms, conditions, and/or performance circumstances of employment of a relative. Relatives of current employees shall not be hired into any position in which the employment of such relative has the potential for adversely impacting the supervision, safety, security, or morale of other employees. The City shall review each applicant who is a relative of a current employee to determine whether hiring the applicant would result in any of the prohibited situations. If the City Manager or Designee finds that any of those situations exists, then the applicant may be rejected, or may be considered for employment in a position that does not present the above situations. Current employees shall not participate, directly or indirectly, in the recruitment or selection process for a position for which a relative is an applicant. Current employees having hiring powers or authority to recommend hires shall not, either directly or indirectly, seek to influence or assist in the hiring of any relative to any position within the City. Current employees shall not participate or interfere in, or otherwise attempt to influence, any personnel actions affecting his or her relative including, but not limited to, transfer, promotion, demotion, layoff, suspension, termination, assignments, approval of merit increases, evaluations, and grievance adjustments. Change In Status. Current employees must report a change of status to the City Manager or Designee in advance of the effective date where feasible, but in no event later than a reasonable time after the effective date of the change of status. For purposes of this policy, “a change of status” is the change in the legal status or personnel status of one or more current employees. 1. Changes in legal status include but are not limited to marriage, divorce, separation, or any such change through which a current employee becomes a relative or ceases to be a relative of another current employee. 2. Changes in personnel status include but are not limited to promotion, demotion, transfer, re-assignment, resignation, retirement, or termination of a current employee who is a relative of another current employee. 80 25 Within thirty (30) days from receipt of notice, the City shall undertake a case- by-case consideration and individualized assessment of the particular work situation to determine whether the change of status has the potential for creating an adverse impact on supervision, safety, security, or morale. The City Manager or Designee shall make a good faith effort to regulate, transfer, condition, or assign duties in such a way as to minimize problems of supervision, safety, security, or morale. Notwithstanding this, the City retains the right to exercise its discretion to refuse to implement a change in personnel status due to its potential for creating an adverse impact on supervision, safety, security, or morale. The City shall reasonably monitor and regulate both relatives’ conduct and performance for a period of one (1) year from the date of the determination. If the City determines that a change of status has caused potential for creating an adverse impact on supervision, safety, security, or morale, the City shall re-visit the prior determination. Depending on the nature and severity of the situation, the City may transfer one of the relatives to a similar position that would not be in violation of this policy. The transfer will be granted provided the relative qualifies and there is an opening to be filled. There can be no guarantee that the new position will be within the same classification or at the same salary level. If the situation cannot be resolved by transfer or by good faith efforts to regulate, transfer, condition, or assign duties in such a reasonable way that would not be in violation of this policy, one of the relatives must separate from City employment. Pre-Existing Relationships. Where situations exist prior to the effective date of this policy that may be in conflict with these rules, reasonable efforts shall be made to address the situation so as to minimize potential problems of supervision, safety, security, or morale and to avoid future conflict. 81 26 CHAPTER IX EXAMINATIONS Section 1. Types of Examinations: The selection techniques used in the examination process shall measure the knowledge and abilities of the applicants to execute the duties and responsibilities of the position to which they seek to be appointed. Examinations shall consist of selection techniques which will test fairly the qualifications of candidates. The City Manager or Designee may select the appropriate examination(s) to be utilized in the selection process. Section 2. Promotional Examinations: All candidates for promotion must meet the minimum qualifications identified by the City Manager or Designee. The City Manager or Designee will determine whether the examination is open competitive or a promotional appointment. Section 3. Continuous Examinations: Open-competitive examinations may be administered periodically for a single position as the needs of the service require. Names shall be placed on employment lists, in order of final scores, for a period of not more than one (1) year, unless extended by the City Manager or Designee. Section 4. Conduct of Examinations: The City Manager or Designee will determine the manner and methods and by whom examinations shall be prepared and administered. Section 5. Reasonable Accommodation in Testing: Should an otherwise qualified applicant who is disabled request a reasonable accommodation for any part of the testing process the City may modify the process to reduce or eliminate the testing barrier. Section 6. Background Investigations: Following a conditional offer of employment, each prospective employee shall submit to a criminal background check. The City does not consider, distribute, or disseminate information about any of the following while conducting a criminal background check in connection with a job application: an arrest not followed by a conviction, except when the applicant is out on bail or his/her own recognizance pending trial; a referral to or participation in a pre-trial or post-trial diversion program; and a conviction that has been sealed, dismissed, expunged, or statutorily eradicated pursuant to law. If the City’s criminal background check reveals an applicant’s prior conviction, the City shall conduct an individualized assessment to determine whether the conviction has a direct and adverse relationship with the specific job duties that may justify denying employment. The following 82 27 factors shall be considered as part of the individualized assessment: the nature and gravity of the offense or conduct; the time that has passed since the offense or conduct and completion of the of the sentence; and the nature of the job held or sought. If the results of the City’s individualized assessment justify denying employment the applicant shall be provided with notice and an opportunity to respond within five business days. Written notice of the preliminary decision to deny employment shall be provided to the applicant. The written notice shall contain the identity of the disqualifying conviction, a copy of the conviction history report, an explanation of the applicant’s right to respond to the notice before a final decision is made, notice of the deadline to respond within five business days, and an explanation informing the applicant that the response can include evidence challenging the accuracy of the conviction history report and/or evidence of rehabilitation or mitigating circumstances. If the City makes a final decision not to hire the applicant based on the conviction history after considering the applicant’s response the City shall provide a final determination notice that includes notice of the final denial, any existing procedure the City has for the applicant to challenge the final decision, and the applicant’s right to file a complaint with the Department of Fair Employment and Housing. Section 7. Immigration Reform and Control Act of 1986: In compliance with the Immigration Reform and Control Act of 1986, all new employees must verify identity and entitlement to work in the United States by providing required documentation. Section 8. Notification of Selection Process Results: Each person competing in an employment selection process shall be given notice of the results from the examination. 83 28 CHAPTER X EMPLOYMENT ELIGIBILITY LISTS Section 1. Employment Eligibility Lists: As soon as possible after the completion of a continuous examination, the City Manager or Designee will prepare and keep available an employment eligibility list consisting of the names of applicants who qualified in the examination, arranged alphabetically. Section 2. Removal of Applicants from Lists: The name of any person appearing on an employment eligibility list shall be removed by the City Manager or Designee if the person eligible requests in writing that his or her name be removed, fails to respond to a notice mailed to his or her last known address, or has been certified for appointment and has not been appointed. Section 3. Use of Employment Eligibility Lists: A vacant position may be filled by the appointment of a person whose name is on an employment eligibility list for the position. 84 29 CHAPTER XI METHOD OF FILLING VACANCIES Section 1. Types of Appointment: All vacancies shall be filled by re-employment, transfer, voluntary demotion, promotion, or from eligible applicants by a process deemed appropriate by the City Manager or Designee. Section 2. Appointment: After interview(s) and an examination if deemed necessary for the selection of a candidate, the City Manager or Designee shall thereupon notify the person of the conditional offer of appointment, subject to passing a required medical examination and all background investigations. Section 3. Temporary Assignments: Employees may be temporarily assigned higher or lower duties without a change in pay. Such action shall not be deemed as a transfer, demotion, promotion, or reclassification. In all cases where periodic or regular variations in assignments occur because of seasonal needs, the temporary change of duties or a change of the work schedule shall be considered as incidental to the position. Section 4. Extended Assignment to Vacant Higher Position: Employees assigned to perform duties in a vacant higher level regular position in excess of twenty- one (21) consecutive calendar days as authorized by the City Council shall be entitled to a salary rate increase to the higher level for the time actually worked in the assignment. (See CHAPTER V, Section 15, Acting Pay.) The duration of such assignment to a vacant higher position shall not exceed one (1) year. It is the responsibility of the City Manager to adjust the salary rate increase. 85 30 CHAPTER XII PROBATIONARY PERIOD Section 1. Probationary Period: Upon initial and promotional appointment to a position, an employee must serve a probationary period of 1 year of actual and continuous service. Periods of time on paid or unpaid leave excluding five (5) days or less automatically extends the probationary period by the number of days the employee is on leave. The City Council may, by resolution, establish a longer probation period for a specified classification prior to the time of an appointment. Continuous service with the City in a temporary position may be calculated into the probationary period upon hiring the individual into a regular position at the discretion of the City Manager. Completion of the probationary period does not entitle an employee to continued employment for any length of time. Completion of the probationary period does not alter the at-will nature of the employment. Section 2. Purpose of Probationary Period: During the probationary period, the City Manager shall review, examine, and monitor the conduct, capacity, efficiency, skill, responsibility, integrity, and effectiveness of an employee to determine whether the employee is fully qualified for employment in the position to which the employee has been appointed. Section 3. Extension of Probationary Period: The probationary period may be extended by the City Manager for a period up to six (6) months by written notice to the employee prior to the expiration of the original probationary period. Section 4. Reduction of Probationary Period: The probationary period may be shortened by the City Manager. Section 5. Rejection During Probation: At any time during the probationary period an employee may be rejected from employment without cause and without right of appeal. Section 6. Rejection During Probation From a Promotional Position: A promoted employee who has attained regular status in another position of City employment who does not successfully complete the probationary period in the promoted position may be returned to the former position without right to review or appeal unless terminated for cause. Section 7. Use of Leave During Probation: Accrued sick leave may be used any time by the probationary employee during the probationary period. Vacation leave hours are accrued during the probationary period, but shall be available for use upon completion of 1 year of service unless otherwise approved by the City Manager. 86 31 CHAPTER XIII ATTENDANCE AND LEAVES Section 1. Attendance: Full-time employees shall be in attendance at their work in accordance with the rules regarding hours of work, holidays, and leave. Absence of any employee without leave may result in disciplinary action, including discharge. Section 2. Vacation Leave: Vacation is a right, earned as a condition of employment, to a leave of absence with pay for the recreation and well-being of the employee. If an employee has exhausted sick leave, vacation may be used for sick leave upon request of the employee and with approval of the City Manager. (a) Employees shall accrue, on a pro-rata basis, vacation leave for completed pay periods. Such vacation allowance shall be available for use on the first day following the pay period in which it is earned; however, vacation allowance shall be available for use after one year by a probationary employee. (b) All Full-time employees accrue vacation as follows: Years of Service Completed Vacation Days Accrual 0 –3 5/6 day per month 3 1 day per month 5 1 1/4 days per month 10 1 2/3 days per month (c) Maximum Accrual: Employees shall be permitted to accumulate a maximum of 40 days of vacation leave or the maximum amount accumulated in a two-year period of employment, whichever is less. Employees who have accumulated the maximum amount of vacation leave shall accrue no further vacation leave until they use sufficient leave to fall below the maximum that may be accumulated. (d) Waiver of Maximum Accrual: A waiver must be requested by the employee and approved by the City Manager, for a period not to exceed thirteen (13) pay periods per fiscal year. If, at the end of the waiver period the maximum accrual amount is exceeded, vacation accrual for the affected employee will stop. No further vacation time will be accrued until the employee’s vacation leave balance is below the maximum accrual amount. In the event that the failure to utilize vacation past the thirteen pay period waiver is due to the City’s inability to allow an employee to take vacation (as opposed to an employee’s delay and/or failure to request vacation time off), the 87 32 employee may, with City Manager authorization, continue to accrue vacation. (e) Vacation Leave Cash Out Option: In December of each year, if an employee has over two weeks of accrued vacation after using accrued vacation leave for one week (37.5 hours) of vacation during the calendar year, he or she may “cash out” up to two weeks of the accrued vacation (75 hours) at his or her base rate of pay. (f) The minimum charge against accumulated vacation leave shall be fifteen (15) minutes or multiples thereof. Vacation leave shall be compensated at the employee’s base rate of pay. (g) The time during a calendar year at which an employee may take his or her vacation shall be determined by the City Manager with due regard for the wishes of the employee and particular regard for the needs of the City. (h) All vacation leave requests shall be made with as much advance notice as possible, and prior approval must be given by the City Manager. When circumstances warrant and advance notice is impractical, the City Manager may approve the use of vacation leave for emergency absences. If an employee does not request time off in advance and simply does not show up for work, the City Manager may deny the use of vacation time or any leave accruals, and said employee may be subject to disciplinary action. (i) When a fixed holiday falls within a vacation period, the holiday time shall not be charged against an employee’s earned vacation benefits. (j) Employees who terminate or retire shall be paid for all accrued vacation leave earned at their base rate of pay at the time of their separation of employment. (k) Employees on Unpaid Leave: Employees on Unpaid Leave do not accrue Vacation Leave. (l) Employees not Eligible for Vacation: All part-time employees including temporary, emergency, and seasonal part time, do not accrue Vacation Leave. Section 3. Paid Sick Leave: Employees who are hired to work at least thirty days are eligible for California Paid Sick Leave. Paid Sick Leave may be taken for below prescribed purposes: 88 33 1. The diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee or an employee’s family member; or 2. To attend legal proceedings, or to obtain medical treatment, counseling, or other victims’ services for domestic violence, sexual assault, or stalking. A “family member” for these purposes is defined as a child (a biological, adopted, or foster child, stepchild, legal ward, or a child to whom the employee stands in loco parentis), a parent (a biological, adoptive, or foster parent, stepparent, or legal guardian of an employee or the employee’s spouse or registered domestic partner, or a person who stood in loco parentis when the employee was a minor child), a spouse or registered domestic partner, a grandparent, grandchild, and sibling. Additionally, Paid Sick Leave may be used for an employee who is a victim of domestic violence, sexual assault, or stalking. Accrual: Employees shall accrue one day of sick leave (7.5 hours) with full pay for each month of service. Sick leave shall be available for use the first day following the payroll period in which it is earned. If the employee does not take the full amount of sick leave allowed in any year, the amount not taken shall be accumulated from year to year, to a maximum of 30 days. Separation of Employment: Upon separation of employment (voluntary termination, involuntary termination, retirement, etc.) employees are not entitled to be compensated for unused Paid Sick Leave. However, previously unused paid sick days must be reinstated if an employee separates from employment and then is rehired within one year. To the extent possible, employees must provide reasonable advance notice of their need for Paid Sick Leave under this policy. If the need is not foreseeable, the employee must provide notice as soon as practicable. Paid Sick Leave under this policy will not constitute a break in service for the purpose of City benefits or seniority. Minimum Use: The minimum charge against accumulated sick leave shall be fifteen (15) minutes or multiples thereof. Approved sick leave with pay shall be compensated at the employee’s base rate of pay. Notification: Employees should notify the City Manager prior to, or within 45 minutes after the time set for the beginning of his/her regular duties if using paid sick leave. The City Manager may request a certificate issued by a licensed physician or other satisfactory proof of illness if the sick leave extends more than 3 consecutive days. Violations: Violation of sick leave privileges may result in disciplinary action when in the opinion of the City Manager, the employee has been excessively absent or has abused such privileges. Employees who do not 89 34 call in within 45 minutes of the start of their assignment may be denied use of sick leave. Employees on Unpaid Leave: Employees on unpaid leave do not accrue Paid Sick Leave. Employees may donate accrued paid sick time up to two (2) days per calendar year to other employees in need of additional paid time off to seek medical treatment for themselves. Donation of paid sick time to another employee will only be permitted after that recipient employee has exhausted all other available accrued leave. The donation of paid sick time is strictly voluntary. Section 4. Occupational Injury or Illness Leave: Whenever a person is compelled to be absent from employment with the City on account of injury or illness arising out of or in the course of that employee’s employment as determined by the Workers’ Compensation Act, the employee may elect to apply pro-rated accrued sick leave, if any, to such absence to receive compensation of an amount of the difference between the compensation received under the Workers’ Compensation Act and that of the employee’s regular pay, not to exceed the amount of the employee’s earned sick leave. An employee, in such instance, may also elect to use any earned vacation time in like manner after sick leave is exhausted. An employee, in such instance, may also elect to use any earned Floating Holiday hours in like manner after sick leave and earned vacation time is exhausted. Employees shall receive full salary in lieu of Workers’ Compensation benefits and paid sick leave for the first twenty-four (24) hours following an occupational injury or illness, if authorized absence is by order of an accepted physician under the Workers’ Compensation sections of the California Labor Code. Section 5. Bereavement Leave: When circumstances are such and the City Manager determines that conditions warrant, full-time employees may be granted up to three (3) days of paid bereavement leave per occurrence following completion of one year of employment in the event of the death of a spouse, domestic partner, child, brother, sister, parent, parents-in-laws, or grandparent. Section 6. Jury Duty and Witness Leave: If a regular full-time employee is required to serve as a juror, such employee shall receive regular pay less amounts received while actually performing jury service for a period of service not to exceed 10 days of jury service. The City will not pay mileage or other additional expenses incurred by jury duty. Employees will be required to provide a Jury Duty Certification form to their supervisor, to be attached to their time sheet for that time period. 90 35 Employees shall be granted leave with pay when subpoenaed to testify as a witness other than as a party or an expert. Employees absent from work due to jury duty or witness leave must notify the City Manager of the status of their leave daily. Section 7. California CFRA Leave: The California Family Rights Act (CFRA) provides eligible employees the opportunity to take unpaid, job-protected leave for certain specified reasons. The maximum amount of leave is twelve (12) weeks within a 12- month period. All employees who have worked at least twelve (12) months in the preceding seven (7) years and have worked at least 1,250 hours within the twelve (12) months preceding the date the leave commences are eligible for CFRA leave. (a) Reasons for leave: CFRA leave may be used for the following reasons: (1) To care for or bond with a newborn child. (2) To care for or bond with a child placed with the employee and/or the employee’s registered domestic partner for adoption or foster care. (3) To care for an immediate family member (spouse, parent, registered domestic partner, child or registered domestic partner’s child, sibling, grandparent, or grandchild) with a serious health condition. (4) For the employee’s serious health condition that makes the employee unable to perform his or her job (except pregnancy, which is covered under PDL and does not run concurrently with CFRA). (5) For a qualifying military exigency related to the covered active duty or call to covered active duty of a spouse, domestic partner, child, or parent in the United States armed forces. Eligible employees may take CFRA leave in a single block of time, intermittently, or by reducing the normal work schedule when medically necessary for the serious health condition of the employee or immediate family member. Employees may choose to use accrued paid sick leave or vacation time with some or all of the CFRA leave. 91 36 When seeking leave under this policy, employees must provide the City Manager or Designee with the following: (1) Thirty (30) days’ notice of the need to take CFRA leave (if foreseeable), or notice as soon as practicable in the case of unforeseeable leave; (2) Medical certification supporting the need for leave within fifteen (15) calendar days of the company’s request for the certification. Failure to do so may result in the delay of the commencement of leave or denial of a leave request; (3) Periodic reports as deemed appropriate during the leave regarding the employee’s status and intent to return to work; and (4) A return-to-work release before returning to work if the leave was due to the employee’s serious health condition. The City will maintain health insurance coverage for employees and /or their families when CFRA leave is taken on the same terms as if the employee had continued to work. In some instances, the City may recover premiums paid to maintain health coverage or other benefits for employees and/or their families. Section 8. California Paid Family Leave: The City participates in a private voluntary disability insurance program that it offers to its employees as a legal alternative to the mandatory State Disability Insurance (SDI). Employees may inquire into this program with the City Manager or Human Resources Director. Section 9. Pregnancy Disability Leave: A full-time employee is eligible for up to four (4) months of unpaid leave for an actual disability caused by the employee’s pregnancy, childbirth, or related medical condition. (a) During the pregnancy disability leave time, paid leave may be charged to accrued benefit time such as vacation and floating holiday, at the employee’s request. In addition, accrued sick leave may be used at the employee’s request, in accordance with Section 3. (b) Health insurance benefits shall continue for the duration of the pregnancy disability leave under the same conditions as if the employee had continued employment. If the employee fails to return to work after the period of leave to which the employee is entitled has expired, the City is entitled to recover the premiums paid on behalf of the employee for maintaining coverage. (c) The City Manager may require the employee to file a physician’s certificate or personal affidavit and to provide reasonable notice of the date the leave will begin and the estimated duration of the leave. (d) Employees disabled by pregnancy may also take intermittent leave or be provided reasonable accommodation to continue work. 92 37 (e) Employees returning from Pregnancy Disability Leave generally are entitled to be reinstated in the same position, subject to certain conditions, and consistent with applicable law. Section 10. Lactation Accommodation Policy: The City provides accommodations to lactating employees who need to express breast milk during work hours in accordance with applicable law. The City will provide the employee with the use of a room or other location (not a bathroom) to express breast milk that is in close proximity to the employee’s work area, shielded from view, and free from intrusion. Such space will meet the requirements of the California Labor Code including a surface to place a breast pump and personal items, a place to sit, access to electricity, a sink with running water, and a refrigerator for storing breast milk. Employees who are nursing have a right to request a lactation accommodation. Such requests may be made verbally or in writing, and should indicate the need for an accommodation in order to express breast milk at work, and should be directed to the City Manager or Designee. The City will promptly respond to such requests and indicate the approval or denial of the break request. The City reserves the right to deny an employee’s request for a lactation break if the additional break time will seriously disrupt City operations. The requested break time should, if possible, be taken concurrently with other scheduled break periods. The City prohibits any form of discrimination or retaliation against an employee for exercising or attempting to exercise any rights provided by this policy. Any such conduct or other violations of this policy should be reported to the City Manager or Designee. Employees have the right to file a complaint with the California Labor Commissioner for violation of a lactation accommodation right described in this policy. Section 11. Election Leave: If a full-time employee does not have sufficient time outside of working hours to vote at a statewide election, the voter may, without loss of pay, take off enough working time, which when added to the voting time available outside of working hours will enable the voter to vote. Regular part-time employees are eligible for election leave based upon hours scheduled to work. No more than two (2) hours of the time taken off for voting shall be without loss of pay. The time off for voting shall be only at the beginning or end of the regular work shift, whichever allows for the greatest free time for voting and the least time off from the regular working shift, unless otherwise mutually agreed upon. The employee shall give the City Manager at least two working days’ notice that time off for voting is desired. 93 38 Section 12. Leave of Absence Without Pay: The City Manager may grant a regular employee a leave of absence without pay for a period not to exceed one (1) month. No such leave shall be granted except upon written request of the employee, setting forth the reason for the request. Approval will be in writing. Upon expiration of a regularly approved leave or within a reasonable period of time after notice to return to duty, the employee shall be reinstated in the position held at the time leave was granted. Failure on the part of an employee on leave to report promptly at its expiration, or within a reasonable time after notice to return to duty, shall be cause for discharge. Such leave of absence shall not be counted as a break in service for purposes of satisfying the continuous employment requirement for vacation allowance. An employee on leave of absence without pay does not accrue sick leave, vacation time, or receive benefits while on leave. Such employee does not lose or forfeit any sick leave or unpaid vacation time that had been accumulated prior to the time being granted. Section 13. Military Leave: Military leave shall be granted to City employees in accordance with the provisions of current federal and state law. Section 14. Administrative Leave: At the discretion of the City Manager and in special circumstances, Regular employees may be provided administrative leave without loss in pay or the deduction of other leave accrued. Section 15. Disability Accommodation: It is the City’s policy to comply with the Americans with Disabilities Act (ADA), as well as applicable state and local laws relating to disability issues. The City will not discriminate against any employee with respect to any terms, privileges, or conditions of employment because of his or her physical or mental disability. The City will also reasonably accommodate all employees and applicants with disabilities who are otherwise qualified to safely perform the essential duties of the job unless any such accommodations would impose an undue hardship in the City’s operations. If an employee needs a reasonable accommodation to perform the essential job duties of his or her position, the employee should make the request to the City Manager or Designee. The City believes in an interactive process with the employee to identify and consider possible accommodations that would enable the employee to perform his or her position’s essential job duties. Reasonable accommodation is available to all disabled employees, where his or her disability affects the performance of job functions and when such accommodations would not impose undue hardship. All employment decisions are based on the merits of the situation in accordance with defined criteria, not the disability of the individual. 94 39 CHAPTER XIV HOLIDAYS Section 1. Holidays Observed: The City observes the following paid holidays: 1. New Year’s Day (January 1) 2. Martin Luther King Jr. Day (observed the third Monday in January) 3. President’s Day (observed the third Monday in February) 4. Memorial Day (observed the last Monday in May) 5. Independence Day (July 4) 6. Labor Day (observed the first Monday in September) 7. Veteran’s Day (November 11) 8. Every day appointed by the President or Governor for a public fast, thanksgiving, or holiday including Thanksgiving Day 9. Friday following Thanksgiving Day 10. Christmas Eve (December 24) 11. Christmas Day (December 25) Holidays which fall on Saturday shall be observed the preceding Friday and holidays which fall on Sunday shall be observed on the following Monday. Paid holidays are only for the observed days. If an observed holiday falls on an eight and one-half (8.5) hour work day under the 9/75 work schedule, those employees on the 9/75 schedule shall receive eight and one-half (8.5) hours of holiday pay. If an observed holiday falls on a seven (7) hour workday under the 9/75 work schedule, those employees on the 9/75 schedule shall receive seven (7) hours of holiday pay. If the holiday falls on a regular day off for that employee, that employee will take the preceding day off. 95 40 Section 2. Floating Holiday: (a) Each full-time employee is allowed eight and one-half (8.5) hours per calendar year, January through December with the approval of the City Manager. (b) Floating holiday hours are not cumulative and must be used during the above period or said employee will lose the allocated hours. (c) Each employee must submit a request in advance. (d) An employee is eligible to use floating holiday hours as they are allocated. (e) Floating holiday hours may be used in lieu of sick leave only if all other benefit time has been exhausted. Section 3. Eligibility for Holidays: All employees are eligible for holiday pay except the following: (a) Seasonal and part-time employees. (b) Temporary employees. 96 41 CHAPTER XV CHANGES IN EMPLOYMENT STATUS Section 1. Transfer: An employee may be transferred by the City Manager at any time from one position to another position. Transfer shall not be used to effectuate a promotion, demotion, advancement, or reduction, each of which may be accomplished only as provided in these rules. No person shall be transferred to a position for which he/she does not possess the minimum qualifications. Section 2. Promotion: When practicable and consistent with the best interests of the City, vacancies may be filled by promotion. All candidates for promotion must meet the minimum qualifications identified by the City Manager or Designee. If, in the opinion of the City Manager or Designee, a vacancy in the position could be filled better by an open, competitive recruitment instead of a promotional appointment, he/she shall arrange for an open competitive examination. Section 3. Demotion: The City Manager may demote an employee whose ability to perform his/her required duties falls below standard. No employee shall be demoted to a position for which he/she does not possess the minimum qualifications. Section 4. Suspension: The City Manager may suspend an employee at any time for cause. Section 5. Reclassification: The City Manager may reclassify a position from one position to another if there has been a gradual accretion or reduction of duties and/or responsibilities over time. 97 42 CHAPTER XVI SEPARATION FROM EMPLOYMENT Section 1. Job Abandonment: An employee is deemed to have resigned if the employee is absent for three (3) consecutive workdays without prior authorization and without notification during the period of absence. On the second working day of unauthorized absence, the City Manager shall send an overnight letter to the employee’s last known address informing the employee that if the employee fails to report to work within one (1) workday, or receive authorization for such absence, the employee will be deemed to have resigned and extending to the employee an informal pre-disciplinary conference. Employees separated from employment for job abandonment will be reinstated with such charge removed from the employee’s record upon presentation of justification for absence such as severe accident, severe illness, false arrest, or mental or physical impairment which prevented notification. Employees have no right to appeal if deemed to have resigned as a result of job abandonment. Section 2. Discharge: An at-will employee may be discharged at any time with or without cause or notice. Section 3. Lay-off: The City Manager may lay off an employee because of change in duties or organization or shortage of work or funds. (a) Notification: Employees to be laid off shall be given, whenever possible, at least ten (10) calendar days prior notice. (b) Order of Layoff: Employees shall be laid off in the inverse order of their seniority and with regard to their responsibilities. Seniority shall be determined based upon date of hire in the position. A lay off out of the inverse order of seniority may be made if, in the City’s judgment, retention of special job skills is required. (c) Re-employment Rights for Laid-off Employees: Regular employees, who have received a satisfactory or better evaluation for the twelve (12) months prior to lay off, have completed their probationary period, and who have been laid off shall be automatically placed on a re- employment list for one year for the classification from which they were laid off. Section 4. Resignation: An employee wishing to leave City service in good standing shall file with the supervising official at least ten (10) working days before leaving the service, a written resignation stating the effective date and reasons for leaving. Failure to give such notice shall mean the employee did not terminate in good standing, unless the City Manager has waived the two-week notice requirement. Failure to comply with this Chapter shall be entered on the service record of the employee and be cause for denying 98 43 future employment by the City. A resignation becomes final when accepted by the City Manager and only at the City Manager’s discretion can be withdrawn. Section 5. Reinstatement: A regular employee who has resigned, or has otherwise been separated while in good standing, may be considered for reinstatement by the City Manager, to a position in the former employee’s same or comparable position for a period of two (2) years after resignation or separation provided such a position is vacant and available. The employee shall be reinstated to the salary range and step held at the time of resignation or separation and shall receive a new anniversary date which shall be the first date of employment upon reinstatement. The employee will serve a new probationary period. 99 44 CHAPTER XVII REPORTS AND RECORDS Section 1. General: The City maintains a personnel file on each employee. An employee’s personnel file shall contain only material that is necessary and relevant to the administration of the City’s personnel program. Personnel files are the property of the City, and access to the information they contain is restricted. Section 2. Notifying City of Changes in Personal Information: Each employee is responsible to promptly notify the City Manager or Designee of any changes in relevant personal information, including: Mailing address Telephone number Persons to contact in emergency Number and names of dependents Section 3. Location of Personnel Files: The personnel files will be kept secure and confidential by the City Manager or Designee. Section 4. Medical Information: (a) Separate Confidential Files. All medical information about an employee or applicant is kept separately and is treated as confidential, in accordance with federal and state law. (b) Information in Medical Files. The City will not obtain medical information about an employee or applicant except in compliance with the California Confidentiality of Medical Information Act. To enable the City to obtain certain medical information, the employee or applicant may need to sign an authorization for release of employee medical information. (c) Access to Medical Information. Access to employee or applicant medical information shall be strictly limited to only those with a legitimate need to have such information for City business reasons. In the case of an employee with a disability, managers and supervisors may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations. Section 5. References and Release of Information in Personnel Files: (a) Public Information: Upon request, the City will release to the public information about its employees as required by the Public Records Act. The City will not disclose personnel information that it considers would constitute an unwarranted invasion of personal privacy. 100 45 (b) Reference Checks: All requests from outside the City for reference checks or verification of employment concerning any current or former employee must be referred to the City Manager or Designee. Information will be released only if the employee signs an authorization for release of employment information, except that without such authorization, the following limited information will be provided: dates of employment and job title. Section 6. Employee Access to Personnel File: An employee may inspect his or her own personnel file at reasonable times and at reasonable intervals. An employee who wishes to review his or her file should contact the City Manager or Designee to arrange an appointment. The review must be done in the presence of the City Manager or Designee. Section 7. Destruction of Records: Personnel files, payroll records, and records relating to personnel recruitment, including correspondence, applications, examinations, and reports will be destroyed according to the City’s Records Retention Schedule. 101 46 CHAPTER XVIII GRIEVANCE PROCEDURES Section 1. Definition: (a) Grievance: A “grievance” is a written allegation by an employee, submitted as herein specified, claiming violation(s) of the specific express terms of the Employee Handbook and Personnel Policy Manual, or expressing concern relating to an aspect of employment, and for which there is no other specific method of review provided by City law. (b) Grievant: A grievant is an employee or group of employees adversely affected by an act or omission of the City. (c) Day: A day is any day the agency is open to the public, that is any day except Saturdays, Sundays, and legal holidays recognized by the City. Section 2. Procedure: Step A: Informal Discussion: The grievant shall discuss the controversy with the City Manager on an informal basis in an effort to resolve the situation. The issue will be considered resolved if not presented to the City Manager within ten (10) working days following the day the event occurred upon which the controversy is based. The City Manager shall respond within five (5) working days following the meeting with the grievant. Failure of the City Manager to respond within such time limit shall entitle the grievant to process the controversy to the next step. Step B: First Level of Review: If the controversy is not settled at Step A, the grievant may submit the grievance in writing to the City Manager within five (5) working days of the receipt of the grievance response at Step A. Failure of the grievant to deliver the written grievance shall constitute a waiver of the grievance. The City Manager shall meet with the grievant and a written decision and statement of facts and issues shall be rendered to the grievant within ten (10) working days from the date of the written grievance. Failure of the City Manager to respond within such time limit shall entitle the grievant to process his/her grievance at the next level of review. If the City Manager is the subject of the grievance the grievance shall be submitted to the Personnel Committee instead of the City Manager. 102 47 Step C: Second Level Review: If the grievance is not settled at Step B, the grievant may place the grievance in writing to and present it to the Rolling Hills City Council within five (5) working days of receipt of the Step B grievance response. Failure of the grievant to deliver such written notice shall constitute a waiver of the grievance. The City Council shall hear the grievance at a regular meeting, and a written decision and statement of facts and issues shall be rendered to the grievant. The decision of the City Council shall be final and binding. Section 3. Reprisals: Employees shall be insured freedom from reprisal for using the grievance procedure. 103 48 CHAPTER XIX DISCIPLINE Nothing in this Section is intended to alter the at-will status of employment with the City. Consistent with the City’s Employment At Will policy, you and the City each have the right to terminate the employment relationship at any time with or without cause and with or without prior notice. As well, the City reserves the right to terminate any employment relationship, to demote, and to otherwise discipline an employee without resort to the below disciplinary procedures. Section 1. Types of Disciplinary Action: (a) Oral Warning: A formal discussion with an employee, by the City Manager, about performance or conduct problems, the need for the employee to improve, and what specific improvement is expected. The City Manager shall make a written record of the warning. (b) Written Reprimand: A formal written notice to the employee regarding performance or conduct problems, the need for the employee to improve, and what specific improvement is expected. The written reprimand goes in the employee’s personnel file. (c) Suspension: Removal of an employee from duty without pay for a specified period. (d) Reduction in Pay: A reduction in pay from the employee’s current salary to a lower salary. (e) Demotion: A reduction in position title and salary. (f) Dismissal or Discharge: Separation from employment of an employee for cause. Section 2. Grounds for Disciplinary Action Involving Regular Employees: Grounds for discipline include, but are not limited to, the following: (a) Fraud in securing employment or making a false statement on an application for employment. (b) Incompetency; i.e., the inability to comply with the minimum standard of an employee’s position for a significant period of time. (c) Inefficiency or inexcusable neglect of duty, i.e., failure to perform duties required of an employee within his/her position. (d) Willful disobedience or insubordination, a willful failure to submit to duly appointed and acting supervision or to conform to duly 104 49 established orders or directions of persons in a supervisory position, or insulting or demeaning any fellow employee. (e) Dishonesty. (f) Possession, distribution, sale, use, or being under the influence of alcohol or illegal drugs or narcotics while on duty or while operating a vehicle in the course of City business or potentially dangerous equipment leased or owned by the City. (g) Excessive absenteeism. (h) Inexcusable absence without leave. (i) Abuse of sick leave, i.e., taking sick leave without a doctor’s certificate when one is required, or misuse of sick leave. (j) The conviction of either a misdemeanor or a felony related to the position held will constitute grounds for dismissal of any employee. The record of conviction will be conclusive evidence of the fact that the conviction occurred. The City Manager may inquire into the circumstances surrounding the commission of the crime in order to support the degree of discipline. A plea or verdict of guilty, or a conviction showing a plea of nolo contendere, is deemed to be a conviction within the meaning of this Section. (k) Discourteous treatment of the public or other employees. (l) Improper or unauthorized use of City property. (m) Refusal to subscribe to any oath or affirmation which is required by law in connection with agency employment. (n) Any willful act or conduct undertaken in bad faith, either during or outside of duty hours, which is of such a nature that it causes discredit to the City. (o) Inattention to duty or negligence in the care and handling of City property. (p) Violation of the rules and regulations of the City. (q) Outside employment not specifically authorized. (r) Acceptance from any source of a reward, gift, or other form of remuneration in addition to regular compensation to an employee for the performance of his or her official duties. 105 50 (s) The refusal of any officer or employee of the City to testify under oath before any Grand Jury having jurisdiction over any then pending cause of inquiry in which the investigation of government bribery or misconduct in agency office is involved shall constitute of itself sufficient ground for the immediate discharge of such officer or employee. (t) Willful violation of any of the provisions of an ordinance, resolution, rule, regulation, or policy prescribed by the City. (u) Improper political activity. Example: Campaigning for or espousing the election or non-election of any candidate in national, state, county, or municipal elections while on duty and/or during working hours or in City uniform on or off duty; or the dissemination of political material of any kind while on duty and/or during working hours or in uniform. (v) Working overtime without authorization. (w) Possession of weapons on agency property unless authorized. (x) Making false or malicious statements concerning any employee, the City, or the City’s policies or practices. 106 51 CHAPTER XX PERFORMANCE EVALUATIONS AND ANNUAL WORK PLANS Section 1. General: Performance evaluation is the process of evaluating and recording the performance of each employee. The performance evaluation is best used: (a) To maintain a high level of efficiency or assist in raising efficiency by commending the employee. (b) To indicate to the employee those points in which he/she shows weak performance, and suggest the proper means of raising his/her working performance to the standard level. (c) To inform the employee of good performance. (d) To encourage better working relationships and mutual understanding by letting the employee know where he/she stands with relation to the City Manager’s evaluation of his/her work. (e) To establish an annual work plan consisting of goals and tasks to be accomplished. Section 2. Responsibility for Evaluation: The City Manager is responsible for proper preparation of the performance evaluation for each employee. The City Manager should carefully review the complete position description, and the goals and objectives for the employee, if any, before beginning each evaluation, to remind himself/herself of what should be expected from the employee. Section 3. Discussion with Employee: The performance evaluation must be discussed with the employee. During the interview, as well as in the performance evaluation documentation, special attention should be given to discussing specific ways in which the employee can improve his/her performance. An opportunity should also be afforded to the employee to comment and bring up any questions he or she may have. Section 4. Schedule: Performance evaluations for probationary employees are to be presented at the end of the first six (6) months, and after the first twelve (12) months, to correspond to the completion of the one year probationary period. After the probationary evaluation, an evaluation should be done on an annual basis on the employee’s anniversary date. Section 5. Appeal Procedure: It is the intent of the City to offer fair and equitable appeals procedures for employees’ performance evaluations. Below are the official guidelines. 107 52 (a) Employee and City Manager meet to review and discuss the employee’s performance evaluation. (b) The employee may respond in writing to the contents of the evaluation. The employee must submit this response to the City Manager within ten (10) working days immediately following receipt of the evaluation. The decision shall be rendered in writing within fifteen (15) working days by the City Manager, and the decision of the City Manager shall be final. Section 6. Exceptional Performance Recognition: Based on fiscal year finances and Council approval, the City Manager is provided a pool of funds to recognize an employee’s exceptional performance. Annually, the City will endeavor to budget a 5% increase in salaries. The amount of funds potentially available in the bonus pool is the difference between the CPI adjustment provided to staff in July (see Chapter V) and 5%. An employee can be given exceptional performance recognition of no more than the difference between the CPI and 5% as a one-time check, gift card, or item (the recognition, in other words, does not become part of the employees’ salary) for exceptional performance during the prior fiscal year. The recognition will require the City Manager to document and justify the action. 108 53 CHAPTER XXI VEHICLE USE Section 1. Use of Private Vehicles: Private automobiles are not to be used for the City business except as authorized. The City Manager may authorize such use at the reimbursement rate equal to that set forth by the Internal Revenue Service. Payments shall be based upon the most direct route to and from the destination and garage and parking expenses shall be paid in addition to the current rate, upon submission of paid receipts within the fiscal year of the trips. To receive mileage reimbursement, the employee must acknowledge and be in compliance with the City’s Vehicle Use Policy. Section 2. Auto Allowance: Select employees will receive a monthly car allowance. This stipend will be in lieu of any mileage reimbursement and is intended to cover all actual expenses incurred. If additional garage, parking, and other related auto expenses are incurred above the monthly allowance, they are reimbursable. 109 54 CHAPTER XXII PROFESSIONAL DEVELOPMENT Section 1. Training: The City Manager and employees of the City are eligible to request specialized training in the form of symposiums, special courses, forums, professional association meetings, professional development courses, etc., at the City’s expense. The City retains the sole authority to approve or deny requests for specialized training. 110 55 CHAPTER XXIII EMPLOYEE STANDARDS OF CONDUCT Section 1. Code of Ethics: (a) Each officer, official, and employee has an obligation to the residents, to the people’s elected representatives, and to fellow employees to meet the highest ethical and professional standards and to enhance the public’s respect and trust for the City government and its operations. (b) Employees of the City have responsibilities unique from their counterparts in the private industry. Employment with the City carries an obligation of personal integrity and conduct that serves to establish public respect, confidence, and trust. (c) Employees represent the City of Rolling Hills and the quality of City service is judged through their performance and conduct. The residents of Rolling Hills have the right to expect that City employees will provide services in an efficient, thorough, and courteous manner. (d) The City, as a condition of employment, expects to receive from the employee: (1) Initiative and a conscientious effort to perform productive work. (2) Cooperative, positive, responsive, and courteous relations with fellow employees, supervisors, subordinates, and the public. (3) A continuous effort to strive for greater knowledge and skill on the job in order to maintain performance at a high level. (4) Compliance with all policies, regulations, rules of conduct, and ordinances established by the City. (5) Responsible work habits demonstrated by: a. Dependability, promptness, reliable attendance, and performing required duties competently, b. Keeping informed of developments and matters affecting job performance, c. Being flexible and adaptable to change, 111 56 d. Accepting constructive suggestions and criticism. (6) Neat and clean grooming and attire appropriate to the job assignment. a. Work days Appropriate dress shall be professional and business casual, representative of an office environment and appropriate for meetings and interaction with the public. b. Other As appropriate for the position, the employee is required to have shoes and clothing for meetings in the field, visits to construction sites, and walking on trails. (7) Support in principle of the ICMA (International City/County Management Association) Code of Ethics and related tenants. No employee will accept a fee, compensation, gift, payment of expenses, or any other thing of monetary value in any circumstances in which acceptance may result in or create the appearance of any one or more of the following: 1. Use of public office and/or employment for personal or private gain. 2. Preferential treatment of any person. 3. Loss of complete independence or impartiality. 4. Making a City decision outside of official channels. 5. Reduction of public confidence in the integrity of City government and/or its employees. 6. Impeding government efficiency or economy. Section 2. Policy Against Harassment, Discrimination, and Retaliation The City strictly prohibits and has “zero tolerance” for discrimination and harassment in any phase of the employment, including but not limited to recruitment, testing, hiring, upgrading, promotion/demotion, transfer, layoff, termination, rates of pay, benefits, and selection for training. This includes sexual harassment (which includes harassment based on sex, pregnancy, perceived pregnancy, childbirth, breastfeeding, or related medical 112 57 conditions), as well as harassment, discrimination, and retaliation based on such factors as race, color, religion, religious creed (including religious dress and religious grooming practices), sex, national origin, ancestry, citizenship, age (40 years and older), mental disability and physical disability (including HIV and AIDS), legally-protected medical condition or information (including genetic information), protected medical leaves (requesting or approved for leave under the California Family Rights Act), military and/or veteran status, service, or obligation, reserve status, national guard status, marital status, domestic partner status, gender, gender identity (including transgender identity), gender expression (including transgender expression), because an individual has transitioned (to live as the gender with which they identify), is transitioning, or is perceived to be transitioning), sex stereotyping, sexual orientation, status as a victim of domestic violence, sexual assault, or stalking, enrollment in a public assistance program, engaging in protected communications regarding employee wages or otherwise exercising rights protected under the California Fair Pay Act, requesting a reasonable accommodation on the basis of disability or bona fide religious belief or practice, or any other basis protected by federal, state, or local laws. Discrimination and Harassment Defined. Discrimination and harassment may consist of offensive verbal, physical, or visual conduct when such conduct is based on or related to an individual’s sex or membership in one of the above-described protected classifications, and: (1) Submission to the offensive conduct is an explicit or implicit term or condition of employment; (2) Submission to or rejection of the offensive conduct forms the basis for an employment decision affecting the employee; or (3) The offensive conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creates an intimidating, hostile, or offensive working environment. Examples of Sexual Harassment. For the purpose of clarification, examples of what may constitute prohibited sexual harassment include, but are not limited to, the following: 1. Making unsolicited sexual advances or written, verbal, physical, or visual contact with sexual overtones. (Written examples: suggestive or obscene letters, notes, invitations. Verbal examples: derogatory comments, slurs, jokes, epithets. Physical examples: touching, assault, blocking or impeding access, leering gestures, display of sexually suggestive objects or pictures, cartoons, or posters.) 2. Continuing to express sexual interest after being informed that the interest is unwelcome. (Reciprocal attraction is not considered sexual harassment.) 113 58 3. Making reprisals, threats of reprisal, or implied threats of reprisal following a negative response. (For example, implying or actually withholding support for an appointment, promotion, or change of assignment; suggesting a poor performance report will be prepared; or suggesting probation will be failed.) 4. Engaging in implicit or explicit coercive sexual behavior which is used to control, influence, or affect the career, salary, or work environment of another employee. 5. Offering favors or employment benefits, such as promotions, favorable performance evaluations, favorable assigned duties or shifts, recommendations, reclassifications, etc., in exchange for sexual favors. (Similar conduct when applied to other protected classes such as race, color, creed, national origin, age, disability, medical condition, religion, sexual orientation, or marital status may constitute harassment and violation of this Policy. For example, racial jokes or degrading comments about age or ethnic background can constitute harassment under this policy). Accordingly, in order to avoid the risk of discipline, such acts should be avoided in all circumstances. Internal Complaint Procedure. Any applicant or employee who believes that he or she has been the victim of sexual or other prohibited discrimination or harassment by co-workers, supervisors, clients or customers, visitors, vendors, corporate officers, or others must immediately notify the City Manager or Designee of the alleged conduct. If the employee believes that, for any reason, the City Manager is the source of the conduct or is biased, the employee may submit the complaint to the Personnel Committee. Internal Investigation and Resolution. Following receipt of a discrimination or harassment grievance, the City shall begin an immediate and thorough investigation to determine if sexual or other discrimination/harassment has occurred. The investigation shall be conducted in an impartial manner and all information shall be maintained confidential to the extent possible. After full consideration of all relevant facts and circumstances involving the inquiry, a timely decision will be made by the City and appropriate disciplinary or other action will be taken, up to and including termination of employment. Prohibition Against Retaliation. Retaliation against anyone for opposing conduct prohibited by the City’s anti-discrimination/harassment policies or for filing a complaint with or otherwise participating in an investigation, proceeding, or hearing conducted by the City, or any authorized governmental agency, is strictly prohibited and may subject the offending person to, among other things, disciplinary action, up to and including termination of employment. 114 59 External Reporting. In addition to the City’s internal complaint procedure, an employee may file a complaint with the California Department of Fair Employment and Housing (DFEH) or the U.S. Equal Employment Opportunity Commission (EEOC). Section 3. Injury and Illness Policy The City of Rolling Hills has an adopted Injury and Illness Policy for the purpose of preventing injury and illness at work. The policy applies to all employees. Section 4. Information Technology Policy The City of Rolling Hills has an adopted Information Technology Policy for the purpose of defining inappropriate use of the electronic information, technological equipment (e.g., computers), and technological systems (e.g., email). The policy applies to all employees. Section 5. Smoking Policy The City of Rolling Hills is a smoke-free City. Employees are not permitted to smoke within the City limits. Section 6. Drug and Alcohol Use Policy The City strictly prohibits its employees from using alcohol or drugs in connection with their employment, as it constitutes a threat to the safe and efficient performance of an employee’s duties. At no time shall any employee be under the influence of any controlled drug or alcohol while on the job, including but not limited to marijuana (with, or without, prescription). Please note that, while Proposition 64 (2016) legalized use of recreational marijuana in California, the City still will find a positive test for marijuana as a valid basis for discipline, up to and including termination of employment. (Employees who are taking lawful medications pursuant to a physician’s prescription, except in the case of medical marijuana, who has also certified that they may efficiently perform their duties without jeopardizing the health or safety of others will not be considered to have violated this policy for taking such prescription medicine). Prohibitions. The following conduct is prohibited and may result in discipline, up to and including termination: 1. Using or possessing alcohol or other controlled substances while on duty. 2. Reporting for duty or remaining on duty when the employee used any controlled substances, except if the use is pursuant to the instructions of a physician who has advised the employee that the substance does not 115 60 adversely affect the employee’s ability to safely operate a vehicle or otherwise perform the employee’s job. 3. Reporting for duty or remaining on duty if the employee tests as having a blood alcohol concentration of 0.02 or greater. 4. Reporting for duty or remaining on duty if the employee tests positive for controlled substances (including, but not limited to, marijuana, whether prescribed or not). 5. Refusing to submit to any alcohol or controlled substances test required by this Policy. An employee who refuses to submit to a required drug/alcohol test will be treated in the same manner as an employee who tested 0.02 or greater on a blood alcohol test or tested positively on a controlled substances test. A “refusal to submit” to an alcohol or controlled substances test required by this policy includes, but is not limited to: • A refusal to provide a urine sample for a drug test; • An inability to provide a urine sample without a valid medical explanation; • A refusal to complete and sign the breath alcohol testing form, or otherwise to cooperate with the testing process in a way that prevents the completion of the test; • An inability to provide breath or to provide an adequate amount of breath without a valid medical explanation; • Tampering with or attempting to adulterate the urine specimen or collection procedure; • Not reporting to the collection site in the time allotted by the supervisor or manager who directs the employee to be tested; • Leaving the scene of an accident without a valid authorization. Reasonable Suspicion Testing. All employees may be required to submit to an alcohol or drug test if a supervisor has reasonable suspicion to believe the employee is under the influence of alcohol or controlled substances. Reasonable suspicion alcohol and drug testing will generally be administered within two hours of the observation. If not, the supervisor should provide written documentation as to why the test was not promptly conducted. Consequences of Failing an Alcohol or Drug Test. A positive result from a drug or alcohol test may result in disciplinary action, up to and including termination, even for a first offense. The City also reserves the right to 116 61 discipline or terminate an employee convicted of an offense which involves the use, distribution, or possession of illegal drugs. If an employee is not terminated, the employee: 1. Must be removed from performing any job function and immediately placed in an unpaid status. 2. Must submit to an examination by a substance abuse professional. Upon a determination by the substance abuse professional, the employee may be required to undergo treatment for his or her alcohol or drug abuse. The City is not required to pay for this treatment. 3. Shall not be returned to his or her former position until the employee submits to a return to duty controlled substance and/or blood alcohol test (depending on which test the employee failed) which indicates and alcohol concentration level of less than 0.02 or a negative result on a controlled substance test. 4. Will be required to submit to unannounced follow up testing and, possibly other conditions if he or she has been returned to his or her position. Compliance With State and Federal Law. At all times, the City will comply with current applicable state and federal law concerning drug and alcohol testing. Issues or inconsistencies that are not addressed in this policy will be determined by referring to state or federal law and regulations governing drug and alcohol testing. The City reserves the right to make changes to this policy at any time, for the purpose of complying with state and/or federal law or regulation as it exists now or as it may be amended. 117 62 EMPLOYEE HANDBOOK ACKNOWLEDGEMENT I acknowledge receipt of the City of Rolling Hills Employee Handbook and warrant and represent that I have read and understand the document. I had an opportunity to ask questions and receive clarification from the City regarding conditions of employment, policies, and rules contained in this Handbook. I agree to observe and abide by the conditions of employment, policies, and rules contained in this Handbook. I understand and agree that my relationship with the City is ‘‘at-will,’’ which means that my employment is for no definite period and may be terminated by me or by the City at any time and for any reason with or without cause or advance notice. I understand that the City retains the right to make decisions involving employment as needed in order to conduct its work in a manner that is beneficial to the employees and the City. I understand and agree that nothing in the Handbook creates or is intended to create a promise or representation of continued employment and that employment at the City is employment “at-will”; employment may be terminated at the will of either the City or myself with or without cause. I understand and agree that the terms of my at-will employment may not be modified or superseded except by the City Council and by written agreement signed by me and the City Manager, that no other employee or representative of the City has the authority to enter into any such agreement, and that any agreement to employ me for any specified period of time or that is otherwise inconsistent with the terms of this Acknowledgment will be unenforceable unless in writing, approved by the City Council and signed by me and the City Manager. My signature below certifies that I understand that the foregoing agreement on “at-will” status is the sole and entire agreement between the City and me concerning my employment and the circumstances under which my employment may be terminated. I also understand that if I violate the rules, policies, and procedures set forth herein that I may be subject to discipline, up to and including termination of my employment. This Handbook supersedes all prior agreements, understandings, and representations concerning my employment. I understand that if I have questions regarding the Handbook that I can discuss them with the City Manager’s Designee. Name Date 118 Agenda Item No.: 4.F Mtg. Date: 11/08/2021 TO:HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM:ELAINE JENG, CITY MANAGER THRU:ELAINE JENG P.E., CITY MANAGER SUBJECT:APPROVE SUBMITTAL OF THE ENDANGERED SPECIES ACT (ESA) COMPLIANCE MEMORANDUM AND CONSENT TO THE POST CONSTRUCTION REPORTING AS REQUIRED BY FEDERAL EMERGENCY MANAGEMENT AGENCY (FEMA) FOR THE EASTFIELD DRIVE ELECTRIC UTILITY UNDERGROUNDING GRANT PROJECT NUMBER 4382-177-07. DATE:November 08, 2021 BACKGROUND: In April 2019, the City submitted the Eastfield Drive Electric Utility Undergrounding project for funding by FEMA/California Governor's Office of Emergency Services (CalOES). The City's grant application requested $1,972,500 of grant funds to underground electric utility infrastructure along Eastfield Drive. The grant provision requires a local match of 25% or $657,500 for this project. Since the grant application was submitted in 2019, the granting and program agencies has requested additional information on the project. In December 2019, CalOES requested duplicates of application forms. In December 2020, FEMA requested technical information to the project. In 2021, FEMA conducted site visits of the project locations. In November 2021, FEMA informed City staff that the Environmental and Historic Preservation (EHP) of the agency received the Endangered Species Act (ESA) review form signed by the U.S. Fish and Wildlife Services (USFWS). DISCUSSION: Per the USFWS' evaluation of the City's grant project, if FEMA awards the requested grant funds to the City, the City is required to implement applicable General Avoidance and Minimization Measures (AMMs) and Species-Specific Conservation Measures (CMs) for the duration of the proposed project. FEMA is requesting that the City acknowledge and confirm receipt and understanding of the ESA compliance requirements by signing the ESA Review Form. Accordingly, FEMA is also requesting that the City conduct monitoring and submit reporting post construction of the project per the requirements of the FEMA Programmatic Biological Opinion (PBO) with the USFWS and the National Marine Fisheries Services (NMFS). FISCAL IMPACT: 119 The submission of the requested documents to FEMA would provide the opportunity for the City to receive $1,972,500 of grant funds for electric utility undergrounding along Eastfield Drive with a local match of $657,500. The grant funds would offset General Funds for the proposed project. There is no fiscal impact to submitting the requested documents to FEMA. RECOMMENDATION: Approve as presented. ATTACHMENTS: Eastfield Drive Electrical Utility Undergrounding.pdf ESA Compliance Package Transmittal Letter_Rolling Hills 4382-177-07.pdf 4382-177-07_RollingHills_ESAReviewForm_ForSignature.pdf Copy of FEMA_Post-construction_Notification_Reporting_Form-1.pdf Final USFWS-Carlsbad PBO to FEMA (05.31.2019).pdf 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 U.S. Department of Homeland Security Region IX 1111 Broadway, Suite 1200 Oakland, CA 94607-4052 October 27, 2021 Elaine Jeng City Manager, City of Rolling Hills No. 2 Portuguese Bend Road Rolling Hills, California 90274 Subject: Notice of Endangered Species Act Compliance FEMA HMGP 4382-177-07 Subapplicant: City of Rolling Hills Dear Ms. Jeng, FEMA Environmental and Historic Preservation (EHP) received the enclosed ESA Review Form signed by the U.S. Fish and Wildlife Service (USFWS). This completes the Section 7 consultation for the following FEMA Project: FEMA Project # Title ESA Effects Determination HMGP 4382-177-07 Eastfield Drive Electricity Utility Undergrounding NLAA: Coastal California gnatcatcher The proposed actions are covered activities and have been appended under a Programmatic Biological Opinion (PBO) issued by the U.S. Fish and Wildlife Service, Carlsbad Office on May 31, 2019. The Programmatic Biological Opinion and ESA Review Form describes the potential impacts and contains a list of applicable General Avoidance and Minimization Measures (AMMs) and Species-Specific Conservation Measures (CMs) which the City of Rolling Hills (Subapplicant) shall implement for the duration of the proposed project. The corresponding AMMs and CMs are described in detail in the May 31, 2019 PBO. It is responsibility of the Subapplicant to comply with all applicable AMMs, CMs, and terms and conditions of the ESA Review Form submitted by FEMA. Please sign the enclosed ESA Review Form confirming receipt and understanding of the ESA compliance requirements and return to FEMA EHP at your earliest convenience. If you require additional information related to this correspondence, please contact me at david.cohen@fema.dhs.gov or (510) 627-7063. For information regarding the USFWS 188 concurrence, contact Jesse Bennett, Fish and Wildlife Biologist at jesse_bennett@fws.gov or (760) 750-0632. Sincerely, David R. Cohen for Michael Audin Acting Environmental Officer FEMA Region IX 189 FEMA ESA Review Form for USFWS Carlsbad (July 2020) 1 ESA Review Form for FEMA Funded Projects To be Covered Under the PBO from the Carlsbad FWO Jurisdiction in California (to be submitted to USFWS) INSTRUCTIONS: This Endangered Species Act (ESA) Review Form is for proposed projects that may be funded under various Federal Emergency Management Agency (FEMA) grants programs in California and that would be covered under the U.S. Fish and Wildlife Service (USFWS) Programmatic Biological Opinion (PBO) from the Carlsbad Fish and Wildlife Office (FWO). This form must be filled out by a qualified Biologist 1. This form provides information for FEMA to make a determination of effects on federally listed species 2 and their Critical Habitat 3 from the Subapplicant’s proposed project for compliance with the ESA. For Subapplicant’s proposed projects that meet the criteria for coverage under the PBO, FEMA would submit this completed form to the USFWS and request coverage under the PBO from the Carlsbad FWO. There are five sections and a summary table in this form (check the sections being submitted): Summary Table, Section A: Information on the proposed project, Section B: Determination of effects to federally listed species and/or Critical Habitat protected under the ESA, Section C:ESA Review for Not Likely to Adversely Affect (NLAA) and Likely to Adversely Affect (LAA) determinations for proposed projects, Section D: For the Carlsbad FWO to complete and sign, and Section E:For Subapplicant to complete and sign. 1 A qualified Biologist consists of an environmental professional with at least a Bachelor’s degree in Biology, Ecology, Natural Resources, Environmental Sciences, or similar field, and has at least two years of experience working with federally listed species, their habitats, and Endangered Species Act implementation in the State of California. 2 In this form, the term “federally listed species” includes species listed or proposed to be listed as threatened or endangered under Endangered Species Act. 3 In this form, the term “Critical Habitat” refers to designated Critical Habitat and proposed Critical Habitat for federally listed species protected under the Endangered Species Act. 190 FEMA ESA Review Form for USFWS Carlsbad (July 2020) 2 After completing all the applicable sections in this form, please fill out the Summary Table below: Summary Table: Summary of ESA Effects Determination on Federally Listed Species and Critical Habitat Site/LOP #Species Name ESA Effects Determination Critical Habitat FEMA Grant # or Disaster # and Project Worksheet #: (Note: if multiple Grant Projects, PWs, or sites are included in this ESA Review form, list each one separately) Eastfield Drive Electricity Utility Undergrounding project areas Coastal California gnatcatcher (Polioptila californica californica) May affect, but is not likely to adversely affect May affect, but is not likely to adversely affect critical habitat Is there a concurrent ESA consultation for this project to address federally listed species not covered under the PBO issued by the Carlsbad FWO? YES NO Note 1: If the Subapplicant’s proposed project is under another Federal agency’s jurisdiction (e.g., U.S. Forest Service, National Park Service, Bureau of Land Management, Bureau of Reclamation, etc.) or another Federal agency is functioning as the Lead Federal Agency (e.g., U.S. Army Corps of Engineers), then there is no need to prepare this FEMA form. Note 2: FEMA is not requesting concurrence from the USFWS for sites with a No Effect determination. Instead, FEMA is simply documenting its No Effect determinations for specific sites for internal record-keeping. 191 FEMA ESA Review Form for USFWS Carlsbad (July 2020) 3 Name of Qualified Biologist, Organization, and Date of Preparation: Sam Bankston, CDM Smith, June 17, 2021 Biologist’s Qualifications: Professional Degree: B.S. Aquatic Biology, University of California at Santa Barbara Years of experience working with federally listed species, their habitats, and Endangered Species Act implementation in the State of California: 8 years SECTION A. INFORMATION ON PROPOSED PROJECT (press F11 to advance to the next field) A.1. Name of Subapplicant 4 (Agency Name): City of Rolling Hills A.2. Project Name, and FEMA Grant # or Disaster and Project Worksheet (PW) #s: Eastfield Drive Electricity Utility Undergrounding, HMGP 4382-177-07 A.3. Project Location (street address, latitude/longitude, or UTM and Datum/Zone), and Municipality/County/State: The project area is located along Eastfield Drive—with the exception of two proposed staging areas along Crest Road—in the southeastern portion of the incorporated City of Rolling Hills, Los Angeles County, California. The following latitude/longitude coordinates correspond to the approximate center of the overall project area: 33.752115, -118.336924. A.4. Description of Subapplicant’s Proposed Project: Select the applicable project type(s)5: Non-Emergency Debris Removal Airport Runway Construction Road and Trail Construction Facility Disaster Mitigation Activities Utility Construction Building and Facility Construction Rail Line Construction Channelization Flood Control Activities Stormwater Management Culvert Construction Dam Construction Bridge Construction Bank Protection, Stabilization, and Erosion Control Activities Detention/Retention, or Basin Water Storage Facility Construction Linear Water Conveyance Facility Construction Shoreline Facilities - Recreational or Maritime Use Shoreline Facilities - Protection Wildfire Risk Reduction Provide a detailed narrative of the project that clearly describes the scope of work at a sufficient level of detail to support all analysis needed for compliance with the ESA (please note, this will likely include additional detail found in project plans, design drawings, site visits, etc.). Please explain construction methods here (e.g., equipment to be used, access routes, construction work areas, construction staging areas, pile driving methods and materials, etc.), and see Section A.6 below to add further details concerning construction duration and timing. Include the Subapplicant’s best management practices 6 (BMPs) to be implemented and other Subapplicant-planned measures and post-construction activities, if applicable. 4 In the case of a Tribe, the term to be used is “Applicant” or “Subapplicant” depending on the specific grant circumstance. 5 The term “construction” may include repairing, replacing, relocating, modifying, or demolishing an existing facility or constructing a new facility. 6 The BMPs are measures proposed by the Subapplicant, which are different from the general avoidance and minimization measures and species-specific conservation measures required in the PBO from the Carlsbad FWO. 192 FEMA ESA Review Form for USFWS Carlsbad (July 2020) 4 The City of Rolling Hills (City) proposes to bury existing overhead utilities lines and to remove associated wooden utility poles along Eastfield Drive to reduce the risk of wildfire and the associated risk of loss of life, property, and services in the area. The project area is situated in the San Pedro Hills of the Palos Verdes Peninsula. This area is characterized by deep canyons and hilly terrain and has been designated as a Very High Fire Hazard Severity Zone by the Los Angeles County Fire Department. Eastfield Drive is a long, winding residential street on the southeast side of the City. Many of the properties to the east side of Eastfield Drive slope away from the street, and according to the City, are prone to fire. The trees that line Eastfield Drive intertwine with the existing utility wires, and because of continual tree growth, it is difficult to keep these wires clear of tree branches. In the event of equipment malfunction or disturbance from adverse natural events (e.g., high winds or earthquakes), existing powerlines may generate sparks that would likely ignite adjoining trees—resulting in the potential for fires that could spread to surrounding residential areas. The City would work with Southern California Edison to perform and manage the design, engineering, and construction of the project. The project would entail burying approximately 4,735 feet of overhead 16 kilovolt utility lines along Eastfield Drive and the removal of up to 35 utility poles, along with the overhead wire and equipment attached to them. In addition, 5 concrete vaults, 10 transformer pads, and 11 handholes would be installed. The concrete vaults would accommodate underground switches and splicing, the transformer pads would accommodate underground-fed transformers (this equipment is needed to step down the voltage supplied to surrounding residences), and handholes would accommodate modifications necessary to supply electrical services to individual residences. To place the 9,140 feet of 5-inch diameter polyvinyl chloride (PVC) conduit and 3,226 feet of 3-inch diameter PVC conduit required for installation of underground cables, trenches measuring 2 feet in width and approximately 4 feet in depth would be excavated over a distance of approximately 3,462 feet. To construct the vaults, excavations measuring 14 feet long, 7 feet wide, and 8 feet deep for each vault would be required. Excavation activities would be limited to previously disturbed areas along existing roads and would involve the removal of some existing roadway asphalt, landscape soil, and concrete driveways. Asphalt and concrete removal would be completed using a backhoe and/or jackhammer or by hand digging. Once removed, excavated materials would be properly disposed of or recycled, and it is anticipated that sand bedding topped with a slurry would be used as backfill. Vegetation removal activities would be conducted at existing pole locations and at the proposed vault locations. Ground-disturbing activities—including vegetation removal—associated with utility pole removal would occur within an approximate 5-foot radius of each pole, to a depth of approximately 5 feet. Construction staging areas would be used to temporarily store equipment and materials such as PVC conduits and spools of wire. No ground disturbance would be necessary to prepare staging areas for use. The work sites and staging areas would be accessed using existing paved roads. Areas that are disturbed during project implementation would be restored to their original condition once work is complete. Attach project plans, layouts, engineering drawings, if available. Reference those attachments below. Attachment C contains engineering drawings. Describe the construction equipment: It is anticipated that the construction contractor would use at least 2 backhoes, 2 equipment trucks (i.e., flatbed trucks), 2 boom trucks (to facilitate work on overhead wires), and 5 work trucks (to haul equipment and personnel) on a daily basis. Additionally, jackhammers and saws would be used where asphalt and/or concrete removal is required. Describe the access routes: Personnel and equipment would most likely enter the Eastfield Gate off of Palos Verdes Drive East to access the site via Eastfield Drive. All vehicle access would be on existing roads. Describe the construction staging and work areas: The work area includes paved portions of Eastfield Drive in addition to existing disturbed utility easements and road shoulders. These road shoulders and utility easements are generally characterized by residential 193 FEMA ESA Review Form for USFWS Carlsbad (July 2020) 5 development and ornamental landscaping. Construction staging areas would be on existing road shoulders along Crest Road—approximately 0.4 mile southwest of the work area (Attachment A, Figure 1). If the Subapplicant’s proposed project includes vegetation removal and/or trimming, describe the vegetation type and the extent that would be removed and/or trimmed. Describe the planned revegetation efforts, which should be consistent with the measures described in the PBO from the Carlsbad FWO. Vegetation removal is anticipated at existing pole locations and proposed vault locations. It is anticipated that vegetation would be cleared within an approximate 5-foot radius of existing pole locations and for an area commensurate with the expected extent of excavation at proposed vault locations (i.e., approximately 14 feet long and 7 feet wide). Not all poles and vaults would require vegetation removal, but vegetation removal is assumed for this analysis. A.5. Description of the Action Area 7: Please attach a map(s), aerial image, photographs, GIS data layers, and other information on the Action Area. Attachment A contains figures depicting the Action Area (AA) and surrounding landscape. Attachment B contains representative photographs of the AA and a summary of the site assessment conducted on May 27, 2021. Briefly describe the project footprint 8, and include the size of the project footprint (acres, square feet, etc.): The overall project footprint consists of the estimated extent of ground disturbance—comprising those areas that would be subjected to excavation and vegetation removal activities—as well as proposed staging areas. Therefore, it is conservatively estimated that the overall project footprint would encompass approximately 1 acre. Briefly describe the Action Area in a few sentences including the size of the Action Area (acres, square feet, etc.) and explain the buffer or distance from the project footprint used to define the Action Area: The AA consists of the overall project footprint in addition to a 500-foot buffer where there could be effects from noise, vibration, and dust associated with vegetation clearing, excavation, and equipment operation. This buffer does not apply to staging areas because disturbance levels associated with construction staging activities are expected to be minimal and comparable to ambient levels. Therefore, the overall AA encompasses approximately 107 acres. Please include a description of the vegetation communities, aquatic habitats, slope, elevation, ambient noise levels, and any sensitive biological resources in the Action Area. A reconnaissance-level site assessment was conducted by a FEMA-qualified biologist on May 27, 2021—as described in Section B.1. Based on the site assessment, the AA (approximately 155 acres) is primarily comprised of residential development, ornamental landscaping, paved roads, and managed road shoulders. The AA extends into several canyons with steep terrain with vegetation classified as holly leaf cherry - toyon - greenbark ceanothus (approximately 3.8 acres), composed of toyon (Heteromeles arbutifolia), California sagebrush (Artemisia californica), and lemonade berry (Rhus integrifolia). The AA also includes numerous dense patches (approximately 8.1 acres) of nonnative black mustard (Brassica nigra), short pod mustard (Hirschfeldia incana), and/or radish (Raphanus spp.), and an area (approximately 0.009 acre) situated south of the westernmost staging area that was classified as California sagebrush - black sage scrub and co-dominated by California sagebrush and black sage (Salvia mellifera) (refer to Attachment B, Figure 2). The AA is characterized by moderate to very steep slopes and is situated at an elevation of approximately 1,120 feet above mean sea level (Google Earth 2021). There are no aquatic habitats or features within or near the 7 Action Area is defined as all areas to be affected directly or indirectly by the Federal action and not merely the immediate area involved in the action (50 CFR §402.02). 8 Project footprint corresponds to all the areas directly disturbed by implementation of the Subapplicant’s proposed project, including structures, construction staging areas, access routes, any areas of ground disturbance, etc. 194 FEMA ESA Review Form for USFWS Carlsbad (July 2020) 6 AA. There is likely a significant amount of ambient noise within the project footprint due to regular vehicular traffic and residential uses. Figure 2 (Attachment A) shows all sensitive biological resources in the California Natural Diversity Database (CNDDB) (California Department of Fish and Wildlife [CDFW] 2021) within a 10-mile radius of the AA. Figure 3 (Attachment A) shows all designated Critical Habitat within a 10-mile radius of the AA (USFWS 2021). Attachment B contains a summary of the site assessment as well as representative site photographs. Attachment D contains the Information for Planning and Consultation (IPaC) Species List (USFWS 2021). Are any water bodies including rivers, streams, seasonal wetlands (i.e., vernal pools, ponds, wet meadows, etc.), estuaries, or coastal water bodies located within the Action Area? YES NO If Yes, will in-water work be needed for completion of the Subapplicant’s proposed project? YES NO Not applicable If No, how far is the water body from the limits of ground disturbance and/or vegetation removal? Not applicable What is the name of the river, stream, estuary, or coastal water body? If the river/stream is a tributary, provide the name of the receiving water body. For seasonal/annual bodies of water, describe the time of year and the duration of time that water is typically present. Describe the flow of water (i.e., still, slow moving, swift, etc.) anticipated during the scheduled activities for the proposed project. Not applicable A.6. Proposed Project Schedule and Duration: Please provide start and end dates (including month and year) of project implementation, number of work days, and number of work hours per day (e.g., 5 days of work for 10 hours per day). Start Date August 31, 2021 End Date August 31, 2025 No work would occur during the typical Coastal California gnatcatcher (CAGN) breeding season ( February 15– August 30) in accordance with species-specific conservation measure CAGN-2 (Seasonal Avoidance). Number of work days: Approximately 590 work days. Number of work hours per day: 8 hours Will any work activities occur during nighttime? If so, please describe them. The project would not involve any night work. 195 FEMA ESA Review Form for USFWS Carlsbad (July 2020) 7 A.7. Outside of FEMA’s Memorandum of Understanding 9 (MOU) coordination with USACE, has a previous formal or informal ESA consultation or Technical Assistance with the Carlsbad FWO been initiated or completed for the Subapplicant’s proposed project? This may include a larger project by another Federal agency (e.g., Corps 404 permit, Bureau of Reclamation grant funded project, etc.) that encompasses the proposed project. YES NO If so, please include a copy of this documentation. SECTION B. DETERMINATION OF EFFECTS TO FEDERALLY LISTED SPECIES AND/OR CRITICAL HABITAT PROTECTED UNDER ESA B.1. Does the Action Area for the Subapplicant's proposed project have the potential to support federally listed species and/or does it contain Critical Habitat including physical or biological features essential for the conservation of the species? Also, describe the methods and results of any listed species surveys and/or habitat assessments conducted. Surveys/Habitat Assessment: NO It has been determined that the Action Area occurs either: a) Outside the range of any federally listed species, b) Within the range of a federally listed species but outside of occupied or suitable habitat and outside Critical Habitat, or c) Within Critical Habitat designation but lacks the physical or biological features essential for the conservation of the species. Go to B.2. YES. List the federally listed species and Critical Habitat that are present or potentially present in the Action Area of the Subapplicant’s proposed project (go to B.2) Coastal California gnatcatcher (Polioptila californica californica) CAGN Critical Habitat As previously noted, a reconnaissance-level site assessment was performed on May 27, 2021. This assessment consisted of a pedestrian survey of the AA, including the project footprint and 500-foot buffer. The study area was assessed for presence of federally listed species and for the presence suitable habitat for federally listed species with the potential to occur in the AA. Existing vegetation communities and land cover types were mapped using methods prescribed in A Manual of California Vegetation Online (California Native Plant Society. 2021). Because of access limitations, most of the 500-foot buffer was assessed from a distance using binoculars. However, visibility was limited in some areas, and consequently, vegetation mapping of the 500-foot buffer was partially completed via desktop analysis by comparing aerial signatures with existing vegetation datasets for nearby areas (refer to Attachment B, Figure 2). Portions of the AA overlap a total of approximately 27 acres of designated critical habitat for CAGN, including the eastern edge, the northwestern corner, the southwestern corner of the AA, and parts of both staging areas (Attachment A, Figure 1). References California Native Plant Society. 2021. A Manual of California Vegetation, Online Edition. Available at: http://www.cnps.org/cnps/vegetation/. Accessed May 2021. 9 The MOU refers to the 2015 Executed Memorandum of Understanding Regarding National Environmental Policy Act, Endangered Species Act, Magnuson-Stevens Fishery Conservation and Management Act, National Historic Preservation Act, Rivers and Harbors Act Section 10 Permits, and Clean Water Act Section 404 Permits for Federal Emergency Management Agency Projects in California, Nevada, and Arizona (and subsequent annual updates). 196 FEMA ESA Review Form for USFWS Carlsbad (July 2020) 8 B.2. Could the Subapplicant’s proposed project affect federally listed species and/or Critical Habitat (i.e., the physical or biological features essential for the conservation of the species) in the Action Area? NO No Effect. FEMA has determined that implementation of the proposed project would have no effects on federally listed species and/or Critical Habitat. If a No Effect determination has been made for the proposed project, you do not need to complete this form. No notification to FEMA is required. No consultation with the USFWS is required under the ESA. YES (go to B.3) B.3. Briefly describe the species potential to occur onsite, starting with the Information for Planning and Consultation (IPaC) report, and including but not limited to, the closest California Natural Diversity Database (CNDDB) occurrences, suitable habitat, surveys nearby, Recovery Plan Core Areas, etc. Based on the proposed scope of work, environmental conditions, land-use history, and biogeography of the species with potential to occur on-site, only one federally-listed species has the potential to occur in the AA— CAGN. Attachment E provides a table summarizing ESA effect determinations for the remaining federally listed species that were considered for their potential to occur in the AA and a rationale for why these species were dismissed from further review. The nearest documented CNDDB occurrence of CAGN is approximately 200 feet south of the southern extent of the AA (i.e., the westernmost staging area). The site assessment determined that the project footprint is entirely composed of developed land and landscape vegetation. Portions of the AA classified as holly leaf cherry - toyon - greenbark ceanothus and California sagebrush - black sage scrub could support nesting pairs; however, these suitable areas are relatively far from the work areas and are fragmented by the residential lots. The project footprint provides only marginal dispersal habitat for individuals moving to or from these areas. Adult CAGN generally avoid movement through disturbed habitats unless such areas are interspersed with patches of suitable sage scrub habitat (Atwood and Bontrager 2020). Juveniles are known to use highly modified landscapes— including residential development—during post-breeding dispersal (Bailey and Mock 1998). There is potential for some portions of the AA to support CAGN breeding. However, no work would occur during the typical CAGN breeding season from February 15 to August 30. It is expected that CAGN presence within the project footprint itself would be limited to transitory occurrences of juveniles during post-breeding movements toward the end of the breeding season—during May and June—when peak fledgling dispersal is anticipated and when project implementation would not occur (Grishaver et al. 1998). References Atwood, J. L. and D. R. Bontrager. 2020. California Gnatcatcher (Polioptila californica), version 1.0. In Birds of the World (A. F. Poole and F. B. Gill, Editors). Cornell Lab of Ornithology, Ithaca, NY, USA. https://doi.org/10.2173/bow.calgna.01 Bailey, E.A. and P.J. Mock. 1998. Dispersal capability of the California Gnatcatcher: a landscape analysis of distribution data. Western Birds 29: 351-360. Grishaver, M.A., P.J. Mock, and K.L. Preston. 1998. Breeding behavior of the California Gnatcatcher in southwestern San Diego County, California. Western Birds 29: 299-322. 197 FEMA ESA Review Form for USFWS Carlsbad (July 2020) 9 B.4. Select the federally listed species that may occur in the Action Area, and select the appropriate ESA determination based on the highest level of potential effects as described below: If FEMA has determined that the proposed project May Affect, but is Not Likely to Adversely Affect (NLAA) federally listed species and/or their Critical Habitat, the effects would be insignificant, discountable or wholly beneficial 10. No adverse effects to listed species, take of individual(s) of a listed species, and/or adverse effects to Critical Habitat will occur. Complete Sections C.1, C.2, C.3, and C.5 (skip Sections C.4 and C.6) of this form. If FEMA has determined that the proposed project May Affect, and is Likely to Adversely Affect (LAA) at least one federally listed species and/or their Critical Habitat, adverse effects to at least one federally listed species or at least one physical or biological feature of Critical Habitat may occur to reach an LAA determination. This may include, but is not limited to, incidental take 11 of a federally listed species. Complete Sections C.1 through C.6 of this form. Federally Listed Species or Critical Habitat Applicable ESA Determination Coastal California gnatcatcher (CAGN) (Polioptila californica californica) NLAA or LAA CAGN Critical Habitat NLAA or LAA 10 Beneficial effects are contemporaneous positive effects without any adverse effects to the species. Insignificant effects relate to the size of the impact and should never reach the scale where take occurs. Discountable effects are those extremely unlikely to occur. Based on best judgment, a person would not: (1) be able to meaningfully measure, detect, or evaluate insignificant effects; or (2) expect discountable effects to occur. (1998 ESA Section 7 Consultation Handbook) 11 Take: Under the ESA “take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct [ESA §3(19)]. 198 FEMA ESA Review Form for USFWS Carlsbad (July 2020) 10 SECTION C. ESA REVIEW FOR NLAA AND LAA DETERMINATIONS FOR PROPOSED PROJECTS C.1. a. Briefly describe the potential effects12 from implementation of the Subapplicant’s proposed project(s) in the Action Area. Refer to the PBO or LOC (see Appendix A) from the Carlsbad FWO for a description of potential effects, and describe additional details as applicable. Please clearly differentiate the appropriate response for each project or project site. Potential Effects of the Subapplicant’s Proposed Project. Applicable Project or Site(s) List Species Potentially Affected Is Critical Habitat Potentially Affected, including Effects on Specific Physical and Biological Features 13 Erosion, turbidity, and/or sedimentation -Not applicable Not applicable Not applicable Not applicable Hazardous materials spills – The accidental release of hazardous materials used to maintain construction equipment could degrade the quality of nearby suitable habitat—including critical habitat that supports the physical and biological features necessary for CAGN nesting (PBF 1). AA CAGN Change in noise, vibration, lighting, dust, or temperature – Construction noise and associated visual disturbances could disrupt normal CAGN dispersal behavior if either were to occur during the CAGN breeding season. AA CAGN Not applicable Introduction of invasive species and pathogens - The proposed project has the potential to spread invasive plant species to adjacent habitats that are suitable for CAGN—including designated critical habitat (PBF 1)— through contaminated construction equipment and materials. The spread of invasive species could affect species composition leading to decreased habitat suitability for CAGN in affected areas. AA CAGN 12 ‘Effects of the action’ is defined as all consequences to listed species or critical habitat that are caused by the proposed action, including the consequences of other activities that are caused by the proposed action. A consequence is caused by the proposed action if it would not occur but for the proposed action and it is reasonably certain to occur. Effects of the action may occur later in time and may include consequences occurring outs 13 Per 81 FR 7414, the physical or biological features refer to the features that are present that are essential to the conservation of the species and may require special management considerations or protection, which were formerly referred to as “Primary Constituent Elements.” 199 FEMA ESA Review Form for USFWS Carlsbad (July 2020) 11 In-water disturbance -Not applicable Not applicable Not applicable Not applicable Dewatering of streams, creeks, or wetlands -Not applicable Not applicable Not applicable Not applicable Streambed, bank, or shoreline modification, or other alteration of hydrology - Not applicable Not applicable Not applicable Not applicable Underwater noise, vibration and sound pressure - Not applicable Not applicable Not applicable Not applicable Loss or alteration of vernal pool habitat -Not applicable Not applicable Not applicable Not applicable Riparian habitat removal or degradation –Not applicable Not applicable Not applicable Not applicable Riparian habitat modification or fragmentation -Not applicable Not applicable Not applicable Not applicable Loss or alteration of other suitable habitat for listed species -Not applicable Not applicable Not applicable Not applicable Trampling, crushing or entrapment - Not applicable Not applicable Not applicable Not applicable Species capture and relocation - Not applicable Not applicable Not applicable Not applicable Barriers to migration and species movement – Project- related disturbance may hinder CAGN movement by precluding use of the AA as a dispersal corridor during the construction period. AA CAGN Not applicable Herbicide use - Not applicable Not applicable Not applicable Not applicable b. Describe any additional details on the potential effects on federally listed species not discussed above, including beneficial effects. The proposed action would have long-term beneficial effects on CAGN by reducing the risk of wildfires sparked by electrical lines that could spread to surrounding areas resulting in significant habitat loss. c. Describe any additional details on the potentials effects on Critical Habitat not discussed above, including beneficial effects. If there are adverse effects, quantify the area (in acres, square feet, etc.) of Critical Habitat affected. Where portions of the AA overlap approximately 27 acres of designated critical habitat for CAGN—the eastern edge, the northwestern corner, the southwestern corner of the AA, and parts of both staging areas— such areas largely consist of residential and road development, patches annual grassland interspersed with small patches of scrub-shrub habitat, and wooded hillslopes. As such, these areas are expected to serve primarily as dispersal habitat or marginal foraging habitat for CAGN. Implementation of the proposed action is not expected to cause effects that would decrease the existing conservation value of CAGN designated critical habitat where it overlaps the AA because such areas would only be subjected to temporary noise disturbance that would occur outside of the nesting season. 200 FEMA ESA Review Form for USFWS Carlsbad (July 2020) 12 C.2. a. Please use the check boxes to select the general Avoidance and Minimization Measures from the PBO from the Carlsbad FWO that are applicable and will be implemented by the Subapplicant to avoid and minimize effects. If any AMMs are not applicable, include a brief justification for exclusion. General Avoidance and Minimization Measures Applicable Site(s) or Rationale for AMM Exclusion GEN AMM-1: Erosion and Sedimentation Prevention Measures AA GEN AMM-2: Bank Stabilization No bank stabilization activities would be required because no work would occur on or near existing streambanks. GEN AMM-3: Dust Control Measures AA GEN AMM-4: Spill Control Planning AA GEN AMM-5 Spill Prevention and Pollution Control Measures AA GEN AMM-6 Equipment Inspection and Maintenance AA GEN AMM-7 Fueling Activities AA GEN AMM-8: Equipment Staging AA GEN AMM-9: Materials Storage and Disposal AA GEN AMM-10: Fire Prevention AA GEN AMM-11: Waste Management AA GEN AMM-12: Work Involving Boats and Barges No in-water work would be performed. GEN AMM-13: Work Area Designation to Minimize Disturbance AA GEN AMM-14: Access Routes and Staging Areas AA GEN AMM-15: Environmental Awareness Training for Construction Personnel AA GEN AMM-16: Biological Monitor A biological monitor would not be necessary because presence of CAGN onsite during project implementation would be very unlikely and other AMMs and CMs would be implemented to avoid or minimize the potential for direct interactions GEN AMM-17: Daily Work Hours AA GEN AMM-18: Entrapment Prevention Neither excavation activities nor construction materials would pose an entrapment risk to listed species that may occur within the AA. GEN AMM-19: Water Quality Protection AA GEN AMM-20: Revegetation of Stream Banks No riparian vegetation would be affected. GEN AMM-21: Restoration of Upland Areas to Pre- Project Conditions AA GEN AMM-22: Invasive Aquatic Species No work would be conducted within or near aquatic habitat. GEN AMM-23: Work below Mean Higher High Water No work would be conducted within or near aquatic habitat. 201 FEMA ESA Review Form for USFWS Carlsbad (July 2020) 13 GEN AMM-24: Avoidance of Submerged Vegetation No work would be conducted within or near aquatic habitat. GEN AMM-25: Minimization of Shading by Overwater Structures No work would be conducted within or near aquatic habitat. GEN AMM-26: Water Diversion and Dewatering No work would be conducted within or near aquatic habitat. GEN AMM-27: Fish Relocation No work would be conducted within or near aquatic habitat. b. List any additional general AMMs or BMPs developed for the Project(s) that would be incorporated into the Subapplicant’s proposed project(s) to avoid and minimize adverse effects. If there are none, simply put “not applicable” below. Not applicable C.3. Please use the check boxes to select the species-specific Conservation Measures that are applicable from the PBO or LOC (see Appendix B) from the Carlsbad FWO, and indicate why implementation of others is not necessary for the Subapplicant’s proposed project to avoid and minimize effects. Delete the tables for the species that do not pertain to this project. Remember to select the species-specific Conservation Measures that are applicable for either NLAA (i.e., incidental take coverage is not exempt) or LAA (i.e., adverse effects to federally listed species and Critical Habitat may occur) for each species as appropriate. This project has the potential to affect the Coastal California Gnatcatcher (CAGN) and/or its Critical Habitat. The following Species-Specific Conservation Measures will be implemented in the Subapplicant’s proposed project to avoid and minimize effects: Species-Specific Conservation Measures Coastal California Gnatcatcher Applicable Site(s) or Rationale for AMM Exclusion CAGN-1: Habitat Assessment A FEMA-qualified biologist conducted a reconnaissance-level assessment to determine whether suitable habitat for CAGN is present within the AA on May 27, 2021. CAGN-2: Seasonal Avoidance AA CAGN-3: Work Restrictions Near Active Nests All work would occur outside of the breeding season. CAGN-4: Habitat Avoidance AA CAGN-5: Habitat Restoration Plan AA CAGN-6: Limits on Habitat Disturbance AA CAGN-7: No Permanent Loss of Habitat AA 202 FEMA ESA Review Form for USFWS Carlsbad (July 2020) 14 C.4. For LAA projects only. Briefly describe the mechanism(s) of take as it may occur from implementation of the Subapplicant’s proposed project in the Action Area. This Section is not applicable to this project because no take is anticipated. C.5. Provide a summary of FEMA’s NLAA and/or LAA Determinations for Federally Listed Species and Critical Habitat from implementation of the Subapplicant’s proposed project. List all the federally listed species and/or Critical Habitat that could be affected, and summarize those effects as they are presented in this Section. An ESA determination for each federally listed species and/or Critical Habitat is required. Species: Coastal California gnatcatcher Determination Rationale for Species: This project may affect, but is not likely to adversely affect CAGN because, with the implementation of AMMs and CAGN-specific CMs listed in Sections C.2 and C.3, proposed activities would take place when CAGN are unlikely to occur in the AA (outside of the CAGN breeding season) and would not result in decreased habitat availability or function for CAGN within the AA. Determination Rationale for Critical Habitat: This project may affect, but is not likely to adversely affect designated critical habitat for CAGN with the implementation of AMMs and CAGN-specific CMs that would avoid and/or minimize effects on critical habitat during project implementation. C.6. For projects with an LAA determination, are there any cumulative effects 14 anticipated from implementation of the Subapplicant’s proposed project, including construction activities? If so, please describe them. SECTION D. FOR THE CARLSBAD FWO TO COMPLETE AND SIGN Project Name: Eastfield Drive Electricity Utility Undergrounding FEMA Grant # or Disaster and Project Worksheet #s: HMGP 4382-177-07 I concur with FEMA’s determination on federally listed species and critical habitat as described in this ESA Review Form, pursuant to Section 7 of the Endangered Species Act. The proposed projects are covered activities, and the effects to the listed species presented in this ESA Review Form have been analyzed in FEMA’s May 31, 2019, Section 7 Consultation on FEMA Disaster, Mitigation, and Preparedness Programs in Imperial, Inyo, Kern, Los Angeles, Orange, Riverside, San Bernardino, and San Diego Counties, California (FWS-CFWO-16B0293-18F1358) (Programmatic Biological Opinion, PBO). Take for listed species presented in Section D of this ESA Review Form are exempt under the May 31, 2019, programmatic biological opinion. The proposed projects are appended to the May 31, 2019, programmatic biological opinion under Service File Number FWS-CFWO-16B0293-18F1358-___.Therefore, no further action pursuant to the Act is necessary for the proposed projects unless new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered; the action is subsequently modified in a manner that causes an effect to the listed species or critical habitat that was not considered; or a new species is listed or critical habitat designated that may be affected by the identified action. Signature is listed below: _____________________________ ___________ Assistant Field Supervisor Date Carlsbad Fish and Wildlife Office U.S. Fish and Wildlife Service 14 Cumulative effects are those effects of future State or private activities, not involving Federal activities, that are reasonably certain to occur within the action area of the Federal action subject to consultation (50 CFR §402.02). 203 FEMA ESA Review Form for USFWS Carlsbad (July 2020) 15 SECTION E. FOR SUBAPPLICANT TO COMPLETE AND SIGN On behalf of the City of Rolling Hills, I have read the requirements from FEMA’s Programmatic Biological Opinion (PBO) with the USFWS that are specific to the subject project and plan to implement them accordingly. I understand that failure to implement the required General Avoidance and Minimization Measures and Species-Specific Conservation Measures may jeopardize funding for the subject project. The City of Rolling Hills accepts implementation of the required measures described in this ESA Review Form as a stipulation of funding for Eastfield Drive Electricity Utility Undergrounding, HMGP 4382-177-07. Signature is listed below: ___________________________ ___________________________ Print and sign name Date City of Rolling Hills 204 Information Type Information Request Subapplicant/Subrecipient Provided Information Information on the Project A1 . FEMA Grant # or Disaster and Project Worksheet (PW) #s A2. Project Name A3. Name of Subapplicant/Subrecipient (Agency Name) A4. Project Location (street address, latitude/longitude, or UTM and Datum/Zone) A5. Municipality / County /State A6. Date of project initiation A7. Date of project completion A8. Is this project 100% complete? Information on Impacts to Covered Federally Listed Species under USFWS Jurisdiction Impacts to Covered Federally Listed Species A A9. Species name A10. Actual acres of habitat affected for this Covered Federally Listed Species A11. Brief description of restoration efforts for the affected habitat. Attach a report if applicable. A12. Number of individuals of this species that were killed, if any, and the date. A13. Number of individuals of this species that were injured, if any, and the date. A14. Number of individuals of this species that were harassed, if any, and the date. A15. Number of observations of live, uninjured individuals, date observed, and the GIS coordinates where observed A16. If this project required implementation of AMM-20, Revegetation of Stream Banks , provide the Revegetation Monitoring Report (attach separately if necessary). A17. If this project required the handling, capture, and/or relocation of individuals of this species per the Species-Specific Conservation Measures in the USFWS PBO, provide the associated Monitoring Report (attach separately if necessary). A18. Information regarding success in meeting the Avoidance and Minimization Measures (AMMs) and Species-Specific Conservation Measures required in the PBO. A19. Explanation of any failure to follow the AMMs and Species- Specific Conservation Measures required in the PBO. A20. Indicate if a written report of biological survey and monitoring results is attached, if applicable Information on Impacts to Covered Federally Listed Species under USFWS Jurisdiction Impacts to Covered Federally Listed Species B A9. Species name A10. Actual acres of habitat affected for this Covered Federally Listed Species A11. Brief description of restoration efforts for the affected habitat. Attach a report if applicable. A12. Number of individuals of this species that were killed, if any, and the date. A13. Number of individuals of this species that were injured, if any, and the date. A14. Number of individuals of this species that were harassed, if any, and the date. A15. Number of observations of live, uninjured individuals, date observed, and the GIS coordinates where observed A16. If this project required implementation of AMM-20, Revegetation of Stream Banks , provide the Revegetation Monitoring Report (attach separately if necessary). FEMA Programmatic Biological Opinion (PBO) with the U.S. Fish and Wildlife Service (USFWS) Post-Construction Monitoring and Reporting Requirements 205 Information Type Information Request Subapplicant/Subrecipient Provided Information A17. If this project required the handling, capture, and/or relocation of individuals of this species per the Species-Specific Conservation Measures in the USFWS PBO, provide the associated Monitoring Report (attach separately if necessary). A18. Information regarding success in meeting the Avoidance and Minimization Measures (AMMs) and Species-Specific Conservation Measures required in the PBO. A19. Explanation of any failure to follow the AMMs and Species- Specific Conservation Measures required in the PBO. A20. Indicate if a written report of biological survey and monitoring results is attached, if applicable Information on Impacts to Covered Federally Listed Species under USFWS Jurisdiction Impacts to Covered Federally Listed Species C A9. Species name A10. Actual acres of habitat affected for this Covered Federally Listed Species A11. Brief description of restoration efforts for the affected habitat. Attach a report if applicable. A12. Number of individuals of this species that were killed, if any, and the date. A13. Number of individuals of this species that were injured, if any, and the date. A14. Number of individuals of this species that were harassed, if any, and the date. A15. Number of observations of live, uninjured individuals, date observed, and the GIS coordinates where observed A16. If this project required implementation of AMM-20, Revegetation of Stream Banks , provide the Revegetation Monitoring Report (attach separately if necessary). A17. If this project required the handling, capture, and/or relocation of individuals of this species per the Species-Specific Conservation Measures in the USFWS PBO, provide the associated Monitoring Report (attach separately if necessary). A18. Information regarding success in meeting the Avoidance and Minimization Measures (AMMs) and Species-Specific Conservation Measures required in the PBO. A19. Explanation of any failure to follow the AMMs and Species- Specific Conservation Measures required in the PBO. A20. Indicate if a written report of biological survey and monitoring results is attached, if applicable Information on Impacts to Covered Federally Listed Species under USFWS Jurisdiction Impacts to Covered Federally Listed Species D A9. Species name A10. Actual acres of habitat affected for this Covered Federally Listed Species A11. Brief description of restoration efforts for the affected habitat. Attach a report if applicable. A12. Number of individuals of this species that were killed, if any, and the date. A13. Number of individuals of this species that were injured, if any, and the date. A14. Number of individuals of this species that were harassed, if any, and the date. A15. Number of observations of live, uninjured individuals, date observed, and the GIS coordinates where observed A16. If this project required implementation of AMM-20, Revegetation of Stream Banks , provide the Revegetation Monitoring Report (attach separately if necessary). A17. If this project required the handling, capture, and/or relocation of individuals of this species per the Species-Specific Conservation Measures in the USFWS PBO, provide the associated Monitoring Report (attach separately if necessary). 206 Information Type Information Request Subapplicant/Subrecipient Provided Information A18. Information regarding success in meeting the Avoidance and Minimization Measures (AMMs) and Species-Specific Conservation Measures required in the PBO. A19. Explanation of any failure to follow the AMMs and Species- Specific Conservation Measures required in the PBO. A20. Indicate if a written report of biological survey and monitoring results is attached, if applicable Information on Impacts to Covered Federally Listed Species under USFWS Jurisdiction Impacts to Covered Federally Listed Species E A9. Species name A10. Actual acres of habitat affected for this Covered Federally Listed Species A11. Brief description of restoration efforts for the affected habitat. Attach a report if applicable. A12. Number of individuals of this species that were killed, if any, and the date. A13. Number of individuals of this species that were injured, if any, and the date. A14. Number of individuals of this species that were harassed, if any, and the date. A15. Number of observations of live, uninjured individuals, date observed, and the GIS coordinates where observed A16. If this project required implementation of AMM-20, Revegetation of Stream Banks , provide the Revegetation Monitoring Report (attach separately if necessary). A17. If this project required the handling, capture, and/or relocation of individuals of this species per the Species-Specific Conservation Measures in the USFWS PBO, provide the associated Monitoring Report (attach separately if necessary). A18. Information regarding success in meeting the Avoidance and Minimization Measures (AMMs) and Species-Specific Conservation Measures required in the PBO. A19. Explanation of any failure to follow the AMMs and Species- Specific Conservation Measures required in the PBO. A20. Indicate if a written report of biological survey and monitoring results is attached, if applicable 207 In Reply Refer To: FWS-CFWO-16B0293-18F1358 May 31, 2019 Sent by Email Federal Emergency Management Agency Department of Homeland Security 1111 Broadway, Suite 1200 Oakland, California 94607 Subject: Section 7 Consultation on FEMA Disaster, Mitigation and Preparedness Programs in Imperial, Inyo, Kern, Los Angeles, Orange, Riverside, San Bernardino, and San Diego Counties, California This document transmits the U.S. Fish and Wildlife Service’s (Service) biological opinion on the Federal Emergency Management Agency’s (FEMA) proposed Disaster, Mitigation and Preparedness programs in California and its effects on the federally endangered Quino checkerspot butterfly (Euphydryas editha quino; Quino), arroyo toad (Anaxyrus californicus), and least Bell’s vireo (Vireo bellii pusillus; vireo); the federally threatened Santa Ana sucker (Catostomus santaanae; sucker) and coastal California gnatcatcher (Polioptila californica californica; gnatcatcher); and associated critical habitats for these species, in accordance with section 7 of the Endangered Species Act of 1973 (Act), as amended (16 U.S.C. 1531 et seq.). We received your request for formal consultation and biological assessment on June 21, 2018. This biological opinion is primarily based on that biological assessment. The project file for this consultation is located at the Carlsbad Fish and Wildlife Office (CFWO1). Your agency also determined that the proposed action was not likely to adversely affect the federally endangered southwestern willow flycatcher (Empidonax traillii extimus), California least tern (Sternula antillarum browni) or light-footed Ridgway’s rail (Rallus obsoletus levipes (R. longirostris levipes) or the federally threatened western snowy plover (Charadrius nivosus nivosus) and requested our concurrence. We have determined that the proposed action is not likely to adversely affect these species as documented in Appendix A. Also, while you requested formal consultation for the federally endangered San Diego fairy shrimp (Branchinecta sandiegonensis), Riverside fairy shrimp (Streptocephalus woottoni), and tidewater goby (Eucyclogobius newberryi), we have determined that the proposed action is not likely to adversely affect these species, and the basis for this determination is also documented in Appendix A. Thus, these species are not addressed further in this document. 1 CFWO includes the Carlsbad Fish and Wildlife Office and Palm Springs Fish and Wildlife Office 208 FEMA (FWS-CFWO-16B0293-18F1358) 2 CONSULTATION HISTORY On June 21, 2018, we received a request for section 7 consultation on the proposed action. On July 17, 2018, we provided a letter documenting initiation of formal consultation as of June 21, 2018. On December 20, 2018, we provided a draft biological opinion to FEMA for review and comment. Comments were received on March 6, 2019, and have been addressed or incorporated into this final biological opinion. Endangered Species Act Compliance Process This consultation relies on a two-tiered process, which includes this programmatic biological opinion and follow-up documentation to complete the section 7 consultation for each individual project addressed by the programmatic biological opinion. A description of this process is as follows: 1. If FEMA makes a no effect determination for a subapplicant’s proposed project, no notification or consultation with the Service is required. 2. If FEMA makes a not likely to adversely affect determination for a subapplicant’s proposed project, then FEMA will submit a completed Act Review Form and request concurrence from the CFWO. a. If the CFWO concurs with the not likely to adversely affect determination, a response to FEMA will be provided in writing within 30 days confirming that the activity is addressed and concluded by this section 7 consultation. b. If the CFWO does not concur with the not likely to adversely affect determination, then FEMA may resubmit the project with additional avoidance and minimization measures tailored to the specific project, or they may request formal consultation and resubmit the Act Review Form. 3. If FEMA makes a likely to adversely affect determination for a subapplicant’s proposed project, then FEMA will submit a completed Act Review Form to the CFWO and request confirmation that the project is consistent with this biological opinion. The CFWO will then take one of the following actions: a. If the CFWO agrees that the project is consistent with the biological opinion, confirmation to FEMA will be provided in writing, including a specific incidental take statement (if applicable) for the proposed project; b. If the CFWO agrees that the project can be addressed by the biological opinion provided the subapplicant implements additional conservation measures tailored to the specific project, confirmation to FEMA will be provided in writing, 209 FEMA (FWS-CFWO-16B0293-18F1358) 3 including the conservation measures and a specific incidental take statement (if applicable) for the proposed project; or c. If the CFWO does not agree that the proposed project is consistent with the biological opinion and/or determines that incidental take is likely but is beyond that addressed by the associated incidental take statement and provides this determination to FEMA in writing; FEMA will then prepare a separate consultation request for that subapplicant’s proposed project. 4. This biological opinion does not cover emergency consultations or FEMA’s implementation of the National Flood Insurance Program. BIOLOGICAL OPINION DESCRIPTION OF THE PROPOSED ACTION FEMA proposes the funding of grant programs related to disaster, mitigation, and preparedness in California over the next 5 years. The following subsections generally describe the actions that FEMA may fund as part of the Proposed Action. Non-Emergency Debris Removal For purposes of this document, debris removal performed in non-emergency situations includes: 1. Removing rock, silt, sediment, or woody debris that floodwaters have deposited in harbors and ports, stream channels, bridge and culvert openings, canals, sedimentation basins, sewage treatment ponds, ditches, and other facilities in such a manner as to disrupt normal flows, navigation, recreation, or municipal services; 2. Removing woody debris and other vegetation following events that damage or destroy trees; 3. Removing rock and earth from landslides caused by events such as earthquakes or heavy rains; and 4. Removing rubble after earthquakes. All removed debris will be disposed of at approved and licensed disposal sites, in compliance with existing laws and regulations. Any hazardous materials or other contaminants will be removed and disposed of in an appropriate manner. Woody debris and construction materials can be recycled if recycling facilities exist. 210 FEMA (FWS-CFWO-16B0293-18F1358) 4 Constructing, Modifying, or Relocating Facilities Relevant actions include: 1. Upgrading or otherwise modifying structures; 2. Providing temporary facilities; 3. Acquiring and demolishing existing facilities; 4. Repairing, realigning, or otherwise modifying roads, trails, utilities, and rail lines; 5. Constructing new facilities or relocating existing facilities; 6. Relocating the function of an existing facility; and 7. Developing demonstration projects. Upgrading or Otherwise Modifying Facilities FEMA may provide funds to implement changes required by current building codes and standards, or otherwise modify existing structures. Often, these changes make the structure more resistant to damage in future events. Typical activities will include: 1. Making structures more fire-resistant (e.g., by replacing roofs and doors with fire- resistant materials); 2. Installing bracing, shear panels, shear walls, anchors, or other features so that structures are better able to withstand seismic events or high wind or snow loads; 3. Modifying structures to reduce the risk of damage during floods by elevating structures above the expected flood level or by floodproofing; and 4. Modifying structures to meet another need of a subapplicant, such as through an improved project or an alternate project under the Public Assistance Program. Structures may also be upgraded to meet current codes unrelated to damage from natural hazards, such as upgrades required by changes in capacity or function and upgrades necessary to meet the requirements of the Americans with Disabilities Act. Providing Temporary Facilities FEMA may provide temporary housing facilities when a disaster renders homes uninhabitable for long periods. Such facilities typically consist of manufactured housing. Typical activities may involve: 211 FEMA (FWS-CFWO-16B0293-18F1358) 5 1. Developing the pads for dwellings; 2. Constructing ancillary facilities, such as roads, streets, and parking lots; 3. Installing utilities, such as potable water lines, sewer hookups, electricity (including street lighting), and telephones lines; and 4. Installing manufactured homes. FEMA may provide temporary facilities if other housing options, such as vacant hotel rooms or available rental units, are not feasible. Sites will not be located in a floodplain, wetlands, or critical habitat; affect historic properties or archaeological sites; or contain hazardous materials. Installation of housing units and utilities is to be accomplished in accordance with current codes and standards. After temporary housing is no longer needed at the disaster site, FEMA will remove the temporary housing units and associated ancillary facilities, and restore the land to its original use. All removed materials are stored for future use or disposed of in accordance with applicable laws and regulations. Another method that FEMA will use to provide temporary housing involves modifying existing facilities to serve as temporary housing. These facilities could consist of existing residential property or the adaptive reuse of non-residential facilities. Specific activities range from conducting repairs and minor upgrades to complete reconstruction of a building’s interior. This action may involve acquisition or leasing of facilities. Modifying existing facilities for temporary housing may be conducted by FEMA directly or by providing funding to a subapplicant. FEMA may also provide funding for temporary relocation of essential public services, in the event that the structures that house these services are damaged, destroyed, or otherwise rendered inaccessible by a disaster. Funds may also be provided for upgrades necessary to meet current codes and standards and for the installation or modification of appurtenances, such as utilities, that are necessary to operate facilities. Acquiring and Demolishing Existing Facilities FEMA may provide funds for the acquisition and demolition of existing facilities, particularly if they are located in high-hazard areas and are subject to repetitive loss. Typically, these facilities are at a high risk because of: (1) damage from flooding; (2) erosion of stream banks, beaches, slopes, or bluffs; (3) landslides; or (4) wildfire. These facilities may consist of private properties, such as houses and commercial buildings, or publicly-owned facilities, such as utilities, roads, and bridges. A local government entity will purchase private properties on a willing-seller basis and, after the property is purchased, the property will be dedicated and maintained in perpetuity for uses compatible with open space, recreation, or wetlands management practices, pursuant to 44 CFR Part 206.434(d). Existing facilities will be either removed or demolished. All demolition materials will be disposed of at approved and licensed disposal sites, in compliance with applicable laws and regulations. Any hazardous materials or other contaminants will be removed and disposed of in 212 FEMA (FWS-CFWO-16B0293-18F1358) 6 an appropriate manner. Construction debris and household materials may be recycled if recycling facilities exist. Once structures are removed, lots will be graded to conform to the local topography, and disturbed areas will be revegetated with species approved for the local area. Frequently, the local government will develop the acquired land for recreational or open space uses, such as parks, athletic fields, or walking and biking trails. Repairing, Realigning, or Otherwise Modifying Roads, Trails, Utilities, and Rail Lines Roads, trails, utilities2, and rail lines are typically damaged when floods or heavy rains cause erosion, subsidence, or landslides. Earthquakes may cause similar damage. Repairs are accomplished by replacing earthen material lost during the disaster and replacing the damaged surface, utility line, or, in the case of rail lines, ballast, and track. Stabilizing the replacement fill using rock, grout, timber walls, or steel sheet piling may be necessary. Hazard mitigation measures may be performed to prevent or limit future damage. For example, a pipe may be installed to convey drainage beneath a road to prevent future washouts, or a utility line may be encased in concrete in an area vulnerable to erosion. If the area of damage is unstable, does not allow for repair, or is subject to repetitive loss, a facility may be realigned so that the area of damage is avoided. Property acquisition or a change in easement may be necessary. Facilities may also be modified as part of improved projects or alternate projects under the Public Assistance Program to meet additional needs of the subapplicant. Constructing New Facilities or Relocating Existing Facilities If a facility is located in a floodplain or other hazardous area3, is subject to repetitive damage, or has been damaged in such a way that restoration in the current location is not practical or cost- effective, FEMA may fund the construction of a new facility or the physical relocation of the existing facility. Examples of this action include construction of roads, trails, utilities and utility lines, and rail lines in a different area from the existing facility; construction and relocation of buildings; construction of safe rooms; and construction of drainage improvements. In both new facility construction and physical relocation, FEMA may fund the cost of land acquisition and the construction of appurtenant features, such as access roads and utilities. For properties in the hazard area, FEMA acquires damaged properties, demolishes existing structures (except in cases of physical relocation), and places deed restrictions that will limit future uses to open space in perpetuity. However, FEMA does not acquire land directly nor does it become a land-owning agency as a result of this process. 2 Utilities refer to water, sewer, natural gas, and power/electrical systems and similar types of infrastructure. 3 Hazard areas are susceptible to some type of natural hazard, such as flooding, seismic activity, coastal inundation, or mudslide. 213 FEMA (FWS-CFWO-16B0293-18F1358) 7 Relocating the Function of an Existing Facility FEMA may fund the relocation of a function of a facility to an existing facility that has adequate capacity to handle the additional load with minor modifications, if necessary. For structures, the occupants and materials will be relocated to alternative structures, traffic will use alternate routes, and utility services will be provided by alternative methods. This action will not entail any major physical construction or addition to the existing facility and, if any work is required, it will consist of only minor modifications. A typical example is transferring students from a damaged or flood-prone school to a suitable existing school nearby, if feasible in terms of capacity and convenience for students, families, and teachers. For properties in the hazard area, FEMA will acquire damaged properties, demolish existing structures, and place deed restrictions that will limit future uses to open space in perpetuity. Developing Demonstration Projects Demonstration projects focus on public education and are designed to highlight procedures that the public can use to reduce property damage during flood, earthquake, wildfire, wind, and rainstorm disasters. Demonstration projects may involve the development of a model facility to demonstrate how hazard mitigation technologies can be used to reduce potential damage during a disaster. Flood demonstration projects may involve items such as elevating a structure or waterproofing windows and doors that are below the base flood elevation. A fire demonstration project may include vegetation management around a facility and replacing roofs, doors, and windows with fire-resistant materials. Wind and earthquake demonstration projects may include changes to the structural design of buildings to allow them to withstand higher wind velocity or more movement during an earthquake. Actions Involving Watercourses and Coastal Features Many FEMA activities pertain to inland water sources, such as streams, rivers, and lakes, and coastal features, such as harbors and beaches. Inland water sources may be perennial or dry during the summer months. During construction, avoidance and minimization measures are typically used and incorporated as part of the action. Work in a stream channel often includes temporary diversion of the channel using sandbags or a cofferdam constructed of fill. Heavy equipment is typically operated from an adjacent road, bank, or other feature; however, in some cases, operating equipment in a channel area once flow has been diverted may be necessary. A pipe or a temporary secondary channel may be used to convey the diverted water. If the action involves channel modifications, changes to the capacity of bridges and culverts, or the installation of attenuation structures, then it may be necessary to conduct hydraulic/hydrologic analyses. 214 FEMA (FWS-CFWO-16B0293-18F1358) 8 Relevant categories of activities include the following: 1. Repairing, stabilizing, or armoring embankments; 2. Creating, widening, clearing, or dredging a waterway; 3. Constructing or modifying a water crossing; 4. Constructing or modifying a water detention, retention, storage, or conveyance facility; 5. Constructing or modifying other flood control structures; and 6. Constructing or modifying a coastal feature. Repairing, Stabilizing, or Armoring Embankments Repairing, stabilizing, or armoring embankments will involve the repair of earthen or rock embankments damaged by floodwaters. Examples are natural stream banks (such as those in parks); road, trail, and rail line embankments; embankments for irrigation and navigation canals; and levees used for flood control and reclamation. In addition to repair of damaged features, FEMA may fund measures designed to prevent damage in future flood events. In addition to replacing fill material, embankments may be stabilized or armored through: 1. Placing of rock riprap; 2. Hardening with concrete or soil cement; 3. Installing retaining walls, gabions, or geotextile fabrics; and/or 4. Using bioengineering techniques, such as planting vegetation, placing root wads, or placing willow bundles. A combination of these techniques may be employed. For example, rock and geotextiles, when used with root wads and willow bundles, may provide mitigation from erosion while enhancing the natural values of a stream corridor. Creating, Widening, Clearing, or Dredging a Waterway Creating, widening, clearing, or dredging a waterway may be used to reduce the flood hazard to adjacent lands, facilities, or populated areas. New channels may be constructed to convey excess flows around flood-prone areas during flood events. Drainage swales, earthen channels, concrete channels, or subsurface concrete pipes can also be used as a means of conveyance. A new channel may be constructed in a dry environment and connected to a stream after completion. This channel may have an inlet weir higher than the elevation of the normal flow so that the 215 FEMA (FWS-CFWO-16B0293-18F1358) 9 normal flows remain in the natural channel. The outlet may be armored with concrete or rock riprap to prevent excessive erosion of the existing channel. Existing channels may be widened to allow a channel to convey a larger volume of water. Conveyance may also be increased by replacing earthen banks or channel bottoms with concrete. To the extent possible, construction will be conducted from the top of the bank, but many activities may require construction equipment to work in the stream channel. In perennially flowing streams, work in a stream channel will generally be restricted to the low-flow period, and the flow will be diverted around the construction area. A pipe or a temporary secondary channel will be used to convey the diverted water. As an alternative to constructing a bypass or modifying an existing channel, the existing channel may be cleared of vegetation or sediment to increase conveyance. This action will often be used in developed areas where modifications are not feasible, as well as in areas where years of inadequate maintenance have allowed trees and brush to grow within the channel or sediment and debris to accumulate in the channel or around culverts and bridges. Vegetation may be removed through mechanical means, by hand, or by application of herbicides. Vegetation may be removed not only from the channel but also from the banks and high-water areas, reducing the risk that floating debris will be trapped by trees or heavy brush. Sediment and debris may be removed by dredging, through use of heavy equipment, or by hand. All removed debris will be disposed of at approved and licensed disposal sites, in compliance with applicable laws and regulations. Woody debris and vegetation can be recycled if recycling facilities exist. Constructing a Water Crossing FEMA may fund the repair or replacement of damaged water crossings, the enlargement of openings to allow greater conveyance and reduce the risk that debris will get trapped during floods, or the installation of bank protection or other means to reduce the risk of erosion. Crossings may also be relocated or improved to avoid high-hazard areas, repetitive damage, or areas where reconstruction is not cost-effective or feasible. Culverts may consist of corrugated metal pipes, reinforced concrete pipes, or reinforced concrete box culverts. The capacity of a culvert crossing may be increased to reduce the risk of flooding to the surrounding area, or the culvert may be modified to prevent overtopping or erosion of the crossing. Typical measures will include: 1. Increasing the size of a culvert or adding culvert barrels; 2. Changing the type of culvert; 3. Changing the location or alignment of a culvert; and 4. Adding features, such as a headwall, discharge apron, or riprap to reduce the risk of erosion or damage to a culvert or the crossing. 216 FEMA (FWS-CFWO-16B0293-18F1358) 10 Similarly, bridges may be modified to increase capacity to reduce the risk of flooding or to reduce the risk of damage to the crossing. Typical activities will include: 1. Widening existing openings or constructing new openings; 2. Reconfiguring bracing to reduce the risk that debris will be trapped; 3. Installing protective features, such as concrete abutments or riprap, to reduce the risk of damage due to erosion and scour; and 4. Replacing a multi-span structure with a clear-span structure. A bridge may be installed to replace a culvert to increase the flow capacity of a crossing. Low- water crossings may be installed or improved as an alternative to repairing or replacing a culvert or bridge. Constructing or upgrading a low-water crossing will typically involve hardening the banks and bottom of a water body. A temporary diversion may be necessary during construction activities. Constructing a Water Detention, Retention, Storage, or Conveyance Facility Constructing a water detention, retention, storage, or conveyance facility may include the construction, enlargement, or restoration of detention basins, retention basins, sediment ponds, reservoirs, or conveyance facilities, such as irrigation ditches or flumes, to reduce flood flows or to provide a water source for fighting fires in an area of high fire hazard. The creation and/or enlargement of water storage reservoirs will be most frequently associated with flood disasters and to a lesser extent, fire disasters. Detention basins, retention basins, sediment ponds, and reservoirs will be constructed to temporarily store floodwater to reduce downstream peak flows. The stored water will be released at a slower rate so that the existing drainages can convey water without contributing to downstream flooding. All areas that will be disturbed during the construction of these features will be revegetated with native plant species. This action will also include the repair or restoration of water retention or conveyance structures. All sediment removed from these features will be disposed of in a manner consistent with Federal, State, and local laws and regulations. Frequently in rural areas, firefighting is heavily constrained by the lack of water that firefighters can use. In response to this need, proposed activities may also include the creation of retention facilities in locations that firefighters can readily access, either as a direct source of water or as a source of water to fill water supply trucks. All areas that will be disturbed during the construction of a retention facility will be revegetated with native plant species. 217 FEMA (FWS-CFWO-16B0293-18F1358) 11 Constructing Other Flood-Control Structures A flood-control structure is a facility designed to prevent floodwaters from entering a flood- prone area. Typical examples are levees (also referred to as dikes) and floodwalls. Activities will include: 1. Repairing damaged facilities, usually during emergency situations; 2. Installing embankment protection; 3. Raising the height of existing facilities to prevent overtopping in future floods; 4. Constructing new facilities to protect flood-prone areas from damage during future floods; and 5. Modifying or installing interior drainage systems to reduce the risk of damage behind levees and floodwalls during heavy rains or flooding events on tributary streams. Levees will be repaired or constructed using compacted fill and, in some cases, riprap protection. Bare earth will be seeded with grasses to prevent erosion. Typically, a gravel road will be installed on the levee’s crest to allow for maintenance. Floodwalls, typically built in urban areas, will be constructed using reinforced concrete or grouted, reinforced concrete block. Excavation will be necessary to install footings. Levees and floodwalls will both have interior drainage systems that may include pumps for removing accumulated water. Constructing a Coastal Feature Constructing a coastal feature will involve the repair, replacement, or construction of facilities in coastal environments, such as estuaries, inlets, harbors, and beaches. These facilities include: 1. Recreational facilities, such as piers and boat ramps; 2. Facilities for maritime use, such as docks and slips; 3. Shoreline protection devices, such as seawalls, groins, jetties, and revetments; and 4. Coastal flood control structures, such as levees. Construction activities will be expected to occur in water and involve driving piles, placing rock or soil, or dredging sand, mud, or other sediment. Wildfire Risk Reduction Vegetation management is intended to reduce the risk of loss and damage due to wildfire and increase the ability of channels to convey flows; thus, reducing the risk of flood damage. Vegetation management for wildfire risk reduction may be accomplished using mechanical 218 FEMA (FWS-CFWO-16B0293-18F1358) 12 means, hand-clearing, application of herbicides, or grazing. Some activities may include a combination of these methods. Relevant categories of activities are: 1. Mechanical or hand clearing of vegetation; 2. Herbicidal treatments; and 3. Biological control. In biological control, cattle, horses, goats, sheep, or other livestock will be allowed to graze on grasses and other vegetation as a means of control. The area proposed for grazing will be fenced. The type of animals, timing, duration, and stocking rate will be selected based on the targets of the vegetation management plan (i.e., the quantity and quality of residue to remain). However, biological control will not occur in occupied or designated critical habitat for federally listed species. Mechanical or Hand Clearing of Vegetation Mechanical or hand clearing of vegetation will be used for the selective removal of vegetation so that a certain proportion of vegetation is left in place. This will be done to reduce the amount of vegetative fuels in an area where mechanical removal of vegetation is impractical or the remaining vegetation needs to be protected. Vegetation may be removed to create defensible space around buildings and structures and to protect life and property beyond defensible space perimeters but proximate to (less than 2 miles from) at-risk structures. The creation and maintenance of firebreaks, access roads, and staging areas is not eligible for FEMA funding. In mechanical removal, heavy equipment will be used to uproot, crush, pulverize, or cut the trees and brush being removed. Hand removal will involve the use of chainsaws, axes, and hoes to cut and uproot vegetation. Depending on the location of the vegetation removal project and State and local regulations, vegetation downed as a result of mechanical or hand removal will be piled and burned on site, chipped and spread on site, or loaded and hauled away from the site. After the removal of the targeted vegetation, cleared areas may be revegetated with native, fire-resistant species. Vegetation hauled off-site can be recycled, but it must be disposed of in accordance with appropriate requirements. Herbicidal Treatments Activities generally associated with herbicidal treatment will include the removal of targeted nonnative species within specific areas and the prevention of growth and re-sprouting of undesirable vegetation once an area has been cleared of excessive vegetation by mechanical removal and/or hand removal. Only U.S. Environmental Protection Agency-approved herbicides will be used to control the growth of undesired vegetation in a manner consistent with labeling instructions and applicable Federal and State regulations. After treatment, some areas may be revegetated with native vegetation that is fire resistant. 219 FEMA (FWS-CFWO-16B0293-18F1358) 13 Conservation Measures GEN AMM-1 Erosion and Sedimentation Prevention Measures The subapplicant will prepare an Erosion Control Plan, as needed. The Erosion Control Plan will detail the erosion and sedimentation prevention measures required. As part of this plan, the subapplicant will ensure that sediment-control devices are installed and maintained correctly. For example, sediment will be removed from engineering controls once the sediment has reached one-third of the exposed height of the control. The devices will be inspected frequently (i.e., daily or weekly, as necessary) to ensure that they are functioning properly. Controls will be immediately repaired or replaced or additional controls will be installed as necessary. Sediment that is captured in these controls may be disposed of on site in an appropriate, safe, approved area or off site at an approved disposal site. Areas of soil disturbance, including temporarily disturbed areas, will be seeded with a regionally appropriate erosion control seed mixture. On soil slopes with an angle greater than 30 percent, erosion control blankets will be installed or a suitable and approved binding agent will be applied. Runoff will be diverted away from steep or denuded slopes. Where habitat for federally listed species is identified within, or adjacent to, the project footprint, all disturbed soils at the site will undergo erosion control treatment before the rainy season starts and after construction is terminated. Treatment may include temporary seeding and sterile straw mulch. GEN AMM-2 Bank Stabilization If bank stabilization activities are necessary, then such stabilization will be constructed to minimize erosion potential and will contain design elements suitable for supporting riparian vegetation, if feasible. GEN AMM-3 Dust Control Measures To reduce dust, all traffic associated with the subapplicant’s construction activities will be restricted to a speed limit of 20 miles per hour when traveling off of highways or county roads. Stockpiles of material that are susceptible to wind-blown dispersal will be covered with plastic sheeting or other suitable material to prevent movement of the material. During construction, water or other binding materials will be applied to disturbed ground that may become windborne. If binding agents are used, all manufacturers’ recommendations for use will be followed. 220 FEMA (FWS-CFWO-16B0293-18F1358) 14 GEN AMM-4 Spill Control Planning The subapplicant will prepare a Spill Prevention and Pollution Control Plan to address the storage of hazardous materials and emergency cleanup of any hazardous material and will be available on site, if applicable. The plan will incorporate hazardous waste, stormwater, and other emergency planning requirements. GEN AMM-5 Spill Prevention and Pollution Control Measures The subapplicant will exercise every reasonable precaution to protect federally listed species and their habitats from pollution due to fuels, oils, lubricants, construction by- products, and pollutants such as construction chemicals, fresh cement, saw-water, or other harmful materials. Water containing mud, silt, concrete, or other by-products or pollutants from construction activities will be treated by filtration, retention in a settling pond, or similar measures. Fresh cement or concrete will not be allowed to enter the flowing water of streams, and curing concrete will not come into direct contact with waters supporting federally listed species. Construction pollutants will be collected and transported to an authorized disposal area, as appropriate, per all Federal, State, and local laws and regulations. To reduce bottom substrate disturbance and excessive turbidity, removal of existing piles by cutting at the substrate surface or reverse pile driving with a sand collar at the base to minimize resuspension of any toxic substances is preferable; hydraulic jetting will not be used. No petroleum product chemicals, silt, fine soils, or any substance or material deleterious to federally listed species will be allowed to pass into or be placed where it can pass into a stream channel. There will be no side-casting of material into any waterway. All concrete or other similar rubble will be free of trash and reinforcement steel. No petroleum-based products (e.g., asphalt) will be used as a stabilizing material. The subapplicant will store all hazardous materials in properly designated containers in a storage area with an impermeable membrane between the ground and the hazardous materials. The storage area will be encircled by a berm to prevent the discharge of pollutants to ground water or runoff into the habitats of federally listed species. A plan for the emergency cleanup of any hazardous material will be available on site, and adequate materials for spill cleanup will be maintained on-site. GEN AMM-6 Equipment Inspection and Maintenance Well-maintained equipment will be used to perform the work and, except in the case of a failure or breakdown, equipment maintenance will be performed off site. Equipment will be inspected daily by the operator for leaks or spills. If leaks or spills are encountered, the source of the leak will be identified, leaked material will be cleaned up, and the cleaning materials will be collected and disposed of properly. Fueling of land- and marine-based 221 FEMA (FWS-CFWO-16B0293-18F1358) 15 equipment will be conducted in accordance with procedures to be developed in the Spill Prevention and Pollution Control Plan. Vehicles and equipment that are used during the course of a project will be fueled and serviced in a “safe” area (i.e., outside of sensitive habitats) in a manner that will not affect federally listed species or their habitats. Spills, leaks, and other problems of a similar nature will be resolved immediately to prevent unnecessary effects on federally listed species and their habitats. A plan for the emergency cleanup of any spills of fuel or other material will be available on site, and adequate materials for spill cleanup will be maintained onsite. GEN AMM-7 Fueling Activities Avoidance and minimization measures will be applied to protect federally listed species and their habitats from pollution due to fuels, oils, lubricants, and other harmful materials. Vehicles and equipment that are used during project implementation will be fueled and serviced in a manner that will not affect federally listed species or their habitats. Machinery and equipment used during work will be serviced, fueled, and maintained on uplands to prevent contamination to surface waters. Fueling equipment and vehicles will be kept more than 200 feet away from waters of the State. Exceptions to this distance requirement may be allowed for large cranes, pile drivers, and drill rigs, if they cannot be easily moved. GEN AMM-8 Equipment Staging No staging of construction materials, equipment, tools, buildings, trailers, or restroom facilities will occur in a floodplain during flood season at the project location, even if staging is only temporary. GEN AMM-9 Materials Storage and Disposal Stockpiled soils will be adequately covered to prevent sedimentation from runoff and wind. All hazardous materials will be stored in upland areas in storage trailers and/or shipping containers designed to provide adequate containment. Short-term laydown of hazardous materials for immediate use will be permitted provided the same containment precautions are taken as described for hazardous materials storage. All construction materials, wastes, debris, sediment, rubbish, trash, and fencing will be removed from the site once project construction is complete and transported to an authorized disposal area, as appropriate, in compliance with applicable Federal, State, and local laws and regulations. No disposal of construction materials or debris will occur in a floodplain. No storage of construction materials or debris will occur in a floodplain during flood season. GEN AMM-10 Fire Prevention With the exception of vegetation-clearing equipment, no vehicles or construction equipment will be operated in areas of tall, dry vegetation. 222 FEMA (FWS-CFWO-16B0293-18F1358) 16 The subapplicant will develop and implement a fire prevention and suppression plan for all maintenance and repair activities that require welding or otherwise have a risk of starting a wildfire. Also, fire extinguishers will be required for all vehicles used within or adjacent to undeveloped open spaces. GEN AMM-11 Waste Management The work area will be kept free of loose trash, including small pieces of residual construction material, such as metal cuttings, broken glass, and hardware. All food waste will be removed from the site on a daily basis. All construction material, wastes, debris, sediment, rubbish, vegetation, trash, and fencing will be removed from the site once the project is completed and will be transported to an authorized disposal area, as appropriate, per all Federal, State, and local laws and regulations. GEN AMM-12 Work Involving Boats and Barges For projects that involve in-water work for which boats and/ or temporary floating work platforms are necessary, buoys will be installed so moored vessels will not beach on the shoreline, anchor lines will not drag, and moored vessels and buoys are not located within 25 feet of vegetated shallow waters. Temporary floating work platforms will not anchor or ground in fish spawning areas in freshwater or in eelgrass, kelp, or macro algae. To reduce the likelihood of introducing aquatic invasive species, vessels will use the State's Marine Invasive Species Program. Drip pans and other spill control measures will be used so that oil or fuel from barge-mounted equipment is properly contained. GEN AMM-13 Work Area Designation to Minimize Disturbance The subapplicant will reduce, to the maximum extent practicable, the amount of disturbance at a site to the absolute minimum necessary to accomplish the project. Wherever possible, existing vegetation will be salvaged from the project area and stored for replanting after earthmoving activities are completed. Topsoil will be removed, stockpiled, covered, and encircled with silt fencing to prevent loss or movement of the soil into federally listed species habitats. All topsoil will be replaced in a manner to recreate pre-disturbance conditions as closely as possible. Project planning must consider not only the effects of the action itself, but also all ancillary activities associated with the actions, such as equipment staging and refueling areas, topsoil or spoils stockpiling areas, material storage areas, disposal sites, routes of ingress and egress to the project site, and all other related activities necessary to complete the project. 223 FEMA (FWS-CFWO-16B0293-18F1358) 17 GEN AMM-14 Access Routes and Staging Areas When working on stream banks or floodplains, disturbance to existing grades and vegetation will be limited to the actual site of the project and necessary access routes. Placement of all roads, staging areas, and other facilities will avoid and limit disturbance to sensitive habitats (e.g., stream banks, stream channel, riparian habitat) as much as possible. When possible, existing ingress or egress points will be used and/or work will be performed from the top of the stream banks. After completion of the work, the contours of the streambed, vegetation, and stream flows will be returned to their pre- construction condition or better. All staging and material storage areas, including the locations where equipment and vehicles are parked overnight, will be placed outside of the flood zone of a watercourse, above areas of tidal inundation, away from riparian habitat or wetland habitat, and away from any other sensitive habitats. When possible, staging and access areas will be situated in areas that are previously disturbed, such as developed areas, paved areas, parking lots, areas with bare ground or gravel, and areas clear of vegetation. GEN AMM-15 Environmental Awareness Training for Construction Personnel All construction personnel will be given environmental awareness training by the project’s environmental inspector or biological monitor before the start of construction. The training will familiarize all construction personnel with the federally listed species that may occur on site, their habitats, general provisions and protections afforded by the Act, measures to be implemented to protect these species, and the project boundaries. This training will be provided within 3 days of the arrival of any new worker. As part of the environmental awareness training, construction personnel will be notified that no dogs or any other pets under control of construction personnel will be allowed in the construction area, and that no firearms will be permitted in the construction area, unless carried by authorized security personnel or law enforcement. GEN AMM-16 Biological Monitor If a project involves activities that may result in any potential take, as defined by the Act, of a federally listed species, a CFWO-approved biological monitor will be present on site for all construction activities that occur within 100 feet of habitats for those species. If a biological monitor is needed, the subapplicant will submit the biological monitor’s qualifications to the CFWO for approval 30 days prior to project construction. The biological monitor will ensure that all applicable avoidance and minimization measures are implemented during project construction. The biological monitor will also ensure that all vehicles entering the site are free of debris that may harbor organisms that could be introduced to the site, such as vegetation or mud from other aquatic areas. The biological monitor will also ensure that turbidity, sedimentation, and the release of materials such as dust or construction runoff are controlled and that spill control measures are enacted properly. 224 FEMA (FWS-CFWO-16B0293-18F1358) 18 The biological monitor will oversee construction activities to ensure that the project does not result in adverse effects to federally listed species beyond those anticipated/authorized in this biological opinion. The biological monitor will have the authority to stop any work activities that could result in potential adverse effects to federally listed species and/or their habitats. Approval requests from the subapplicants for Service-approved biologists will include, at minimum: a. Relevant education; b. Relevant training concerning the listed species for which approval is requested, including species identification, survey techniques, handling individuals of different age classes, and handling of different life stages by a permitted biologist or recognized species expert authorized by the Service for such activities; c. A summary of field experience conducting requested activities (to include project/research information); d. A summary of biological opinions under which they were authorized to work with the requested species and at what level (such as construction monitoring versus handling), this will also include the names and qualification of persons under which the work was supervised as well as the amount of work experience on the actual project; e. A list of federal recovery permits [10(a)1(A)] held or under which they are authorized to work with the species requested (to include the permit number, authorized activities and name of permit holder); and f. Any relevant professional references with contact information. GEN AMM-17 Daily Work Hours Construction activities that could affect suitable habitat for federally listed species will be limited to daylight hours during weekdays, leaving a nighttime and weekend period for the species. Work will be allowed on weekends if the proposed construction is 14 days or less in length. GEN AMM-18 Entrapment Prevention To prevent entrapment of covered species, all vertically-sided holes or trenches will be covered at the end of the workday, or have escape ramps built into the walls of the excavation. If pipes are stored onsite or in associated staging areas, they will be capped when not in use. Construction materials that have the potential to entangle or entrap wildlife will be properly contained so that wildlife cannot interact with the materials. If a 225 FEMA (FWS-CFWO-16B0293-18F1358) 19 covered species is identified onsite, crews will immediately stop work within 50 feet of the individual, and inform the construction supervisor and the Service-approved biologist. Work will not continue within 50 feet of the individual until it has traveled off the project site of its own volition. For covered species, please refer to the species-specific Conservation Measures section of the programmatic biological opinion. GEN AMM-19 Water Quality Protection Contractors will exercise every reasonable precaution to protect federally listed species and their critical habitats from construction byproducts and pollutants, such as construction chemicals, fresh cement, saw-water, or other deleterious materials. Fresh cement or uncured concrete will not be allowed to come into contact with any waterway. Construction waste will be collected and transported to an authorized upland disposal area, as appropriate, and per Federal, State, and local laws and regulations. The subapplicant will follow the best management practices described in The Use of Treated Wood Products in Aquatic Environments guidelines (NOAA Fisheries 2009). Although this guidance focuses on the effects of the contaminants on Pacific salmonids protected under the Act, this guidance may still apply for general water quality protection and other Act-protected species. This guidance will be used in conjunction with site- specific evaluations of other potential impacts. Riprap will be clean and durable, free from dirt, sand, clay, and rock fines and will be installed to withstand the 100-year flood event. If applicable, appropriate measures will be taken to minimize disturbance to potentially contaminated sediments. GEN AMM-20 Revegetation of Stream Banks For projects that require revegetation of stream and river banks as a result of riparian vegetation removal during construction activities, the subapplicant will implement revegetation techniques. Where such revegetation is needed, the subapplicant will prepare and implement a revegetation plan that includes information regarding monitoring for success. Revegetation plantings will be replaced at a 3:1 ratio with an 80 percent planting survival within 5 years of the plantings. GEN AMM-21 Restoration of Upland Areas to Pre-Project Conditions For projects that require restoration of upland areas to pre-project conditions as a result of ground disturbance during construction activities, the subapplicant will use native plants to the maximum extent practicable. Similarly, when hydroseeding, only native seed mix will be used. GEN AMM-22 Invasive Aquatic Species The subapplicant will follow the guidelines in the California Department of Fish and Wildlife’s (CDFW’s) California Aquatic Invasive Species Management Plan to prevent the spread of nonnative aquatic plant and animal species (CDFW 2008). 226 FEMA (FWS-CFWO-16B0293-18F1358) 20 Construction equipment will be clean of debris or material that may harbor seeds or nonnative pests before entering the work area. This debris or material includes dirt on construction equipment, tools, boots, pieces of vegetation, and water in the bilge of boats. All aquatic sampling equipment will be sterilized using appropriate guidelines before its use in aquatic habitats. GEN AMM-23 Work below Mean Higher High Water In freshwater, estuarine, and marine areas that support covered species, disturbance to habitat below mean higher high water will be limited to the maximum extent possible. GEN AMM-24 Avoidance of Submerged Vegetation The removal of submerged vegetation (such as eelgrass and kelp estuarine or marine areas, or submerged aquatic vegetation in freshwater areas) will be avoided to the maximum extent possible. GEN AMM-25 Minimization of Shading by Overwater Structures To reduce shading effects, new and replacement structures placed over freshwater, estuarine, and marine waters (such as bridges, piers, floating docks, and gangways) will incorporate design elements (such as metal grating or glass paver blocks) that allow light transmission when feasible. GEN AMM-26 Water Diversion and Dewatering In-channel work and channel diversion of live flow during project construction will be conducted in a manner to reduce potential impacts to sucker. Dewatering will be used to create a dry work area and will be conducted in a manner that minimizes turbidity into nearby waters. Water diversion and dewatering will include the following measures: Heavy equipment will avoid flowing water other than temporary crossing or diverting activities. Water pumped or removed from dewatered areas will be treated before its release so that it does not contribute to turbidity in nearby waters. Temporary culverts to convey live flow during construction activities will be of an adequate size as to not increase stream velocity and placed at stream grade. Silt fences or mechanisms to avoid sediment input to the flowing channel will be erected adjacent to flowing water if sediment input to the stream may occur. 227 FEMA (FWS-CFWO-16B0293-18F1358) 21 GEN AMM-27 Fish Relocation Fish relocation will only be conducted by a CFWO-approved fisheries biologist. If a fisheries biologist is needed, the subapplicant will submit the fisheries biologist’s qualifications and a detailed description of the specific relocation methodology to the CFWO for approval 30 days prior to project construction. The fisheries biologist will have knowledge and experience in listed fish species biology and ecology, fish/habitat relationships, biological monitoring, and handling, collecting, and relocating listed fish species or other relevant experience. The biologist will relocate any stranded fish to an appropriate place depending on the life stage of the fish and flow conditions in the vicinity. The fish will be relocated to the nearest suitable habitat within the potentially affected watershed and occupied habitat. The biologist will note the number of individuals observed in the affected area, the number of individuals relocated, the approximate size of individuals, and the date and time of the collection and relocation. One or more of the following methods will be used to capture listed fish: electrofishing, dip net, seine, throw net, minnow trap, and hand. Species-Specific Conservation Measures Quino QUINO 1 Habitat Assessment: A habitat assessment will be conducted by a biologist no more than 30 days prior to the onset of ground disturbance to determine whether suitable habitat for the Quino occurs in the action area, in accordance with the Service survey guidelines. The Service guidelines for this species provide a map displaying the areas in southern California where habitat assessments are recommended. During the survey, any locations of Quino or host plants will be clearly marked. Host plants include, but are not limited to, dwarf plantain (Plantago erecta), purple owl’s clover/Indian paintbrush (Castilleja exserta spp. exerta), Patagonian plantain (Plantago patagonica), white snapdragon (Anterrhinum coulterianum), Chinese houses (Collinsia concolor), and thread-leaved bird’s beak (Cordylanthus rigidus). If suitable habitat for this species is identified in the action area and the proposed project may affect suitable habitat that is not known to be occupied by Quino, the CFWO will be contacted regarding the need for surveys according to Service protocol, and those surveys will be conducted, as appropriate. With CFWO concurrence, FEMA may also forgo surveys by making a determination that suitable habitat is occupied for the purposes of section 7 consultation. QUINO 2 Fencing/Flagging: Any host plants within Quino occupied or designated critical habitat (Quino habitat) and within 150 feet of the project footprint will be clearly marked and avoided to the maximum extent practicable. Fencing/flagging will be placed along the edge of the work area near any host plants to prevent workers and vehicles from entering this area. Fencing/flagging will be installed prior to any ground-disturbing or vegetation removal activities. A CFWO-approved biologist will supervise the installation of flagging or fencing around host plants. The 228 FEMA (FWS-CFWO-16B0293-18F1358) 22 fencing/flagging will be placed the maximum distance from the plants that is feasible, while still allowing work to occur in the adjacent area. No construction activities will occur in the fenced/flagged area. QUINO 3 Biological Monitor: Each day that work occurs within 150 feet of Quino habitat, the CFWO-approved biologist will monitor for Quino, inspect the fencing/flagging, and immediately address any necessary fencing/flagging repairs. If the CFWO-approved biologist recommends that work be stopped because Quino or their host plants will be affected to a degree that exceeds the levels anticipated (i.e., impacts to areas flagged for avoidance or project impacts exceeding 2 acres), they will notify the resident engineer (the engineer that is directly overseeing and in command of construction activities) immediately. The resident engineer will either resolve the situation by eliminating the unanticipated effect(s) immediately, or require that all actions causing these effects be halted. If work is stopped, the Service will be notified as soon as is reasonably possible. QUINO 4 Seasonal Avoidance: If complete avoidance of Quino or its habitat is not possible, then construction will be avoided during the host plant growing season, adult flight season, and larval feeding season (March 1-June 30). QUINO 5 Dust Control: Dust will be controlled during construction by periodically watering down construction areas within 100 feet of Quino occupied habitat, as necessary. QUINO 6 Habitat Avoidance and Disturbance Limits: No permanent impacts to Quino habitat will occur under the proposed project and permanent or temporary impacts to core occurrence complexes (Service 2009a, 2003) will be avoided unless the impacts to habitat are determined to be insignificant via project-level consultation with the CFWO (i.e., small impacts that will have a negligible effect on habitat quality for Quino). Temporary impacts will not result in more than 2 acres of ground disturbance of Quino habitat for a given project. In addition, not more than 50 acres of Quino habitat will be impacted in total. QUINO 7 Restoration of Disturbed Areas: Restoration of temporary impacts to Quino habitat will occur in accordance with a restoration plan that is reviewed and approved by the CFWO prior to implementation of the proposed project. All temporary impacts will be restored with an assemblage of native species consistent the habitat affected and include host plants found in the vicinity of the action area. QUINO 8 Invasive Non-Native Plant Species Prevention: The spread of nonnative weeds during construction activities and revegetation efforts will be controlled. All vehicles will be cleaned and free of mud and debris prior to entering the action area, and all erosion and other sedimentation controls used during and after construction will be certified weed free, as applicable. Weed free hay, straw bales, or mulch 229 FEMA (FWS-CFWO-16B0293-18F1358) 23 maybe available through the California Interagency Noxious Weed Free Forage and Mulch Program. QUINO 9 Site Restrictions: Access routes, staging areas, and total project footprint within Quino habitat will be limited to the minimum necessary to achieve the project goal. Arroyo Toad ARTO 1 Habitat Assessment: A habitat assessment will be conducted by a CFWO-approved biologist to determine whether suitable habitat for the arroyo toad occurs in the action area. If suitable habitat for this species is identified in the action area and the proposed project may affect suitable habitat that is not known to be occupied by the arroyo toad, the CFWO will be contacted regarding the need for surveys according to Service protocol, and those surveys will be conducted, as appropriate. With CFWO concurrence, FEMA may also forgo surveys by making a determination that suitable habitat is occupied for the purposes of section 7 consultation. ARTO 2 Amphibian Protection Guidelines: A capture and relocation plan for arroyo toads will be implemented during activities in occupied habitat using a CFWO-approved biologist(s). Biologists must follow the Declining Amphibian Task Force’s Fieldwork Code of Practice to prevent the spread of pathogens. ARTO 3 Seasonal Avoidance: To minimize direct effects to breeding arroyo toads, all project activities within designated critical habitat and occupied habitat will occur outside the breeding season (i.e., the breeding season is March 15 - July 15 for arroyo toad) to the maximum extent practicable. If the breeding season cannot be avoided, a CFWO-approved biologist will conduct surveys no more than 48 hours prior to project work; if no arroyo toads of any life stages or clutches are found to occur within the action area, project activities may proceed. If the breeding season cannot be avoided and arroyo toads are found to occur within the action area, a CFWO-approved biologist will conduct daily surveys prior to project work within the action area until the beginning of the non-breeding season or project activities have ceased. ARTO 4 Pre-construction Survey: If a project is located in designated critical habitat or occupied habitat for the arroyo toad, a CFWO-approved biologist must conduct preconstruction surveys no more than 48 hours prior to project work to determine if arroyo toads are present in the action area. ARTO 5 Heavy Machinery Limitations: If project location is located in an occupied area, use of heavy machinery will be avoided when juvenile arroyo toads are known to occupy the bordering banks of suitable water features (i.e., April 15-October 1). 230 FEMA (FWS-CFWO-16B0293-18F1358) 24 ARTO 6 Biological Monitor: Project activities in arroyo toad occupied habitat will be monitored using a CFWO-approved biological monitor with the authority to stop work. The biological monitor will search the action area daily for arroyo toads. ARTO 7 Avoidance of Occupied Habitat: No permanent impacts will occur to arroyo toad occupied habitat, habitat determined to be occupied through surveys or otherwise by FEMA, or designated critical habitat unless the impacts to habitat are determined to be insignificant via project-level consultation with the CFWO (i.e., small permanent impacts that will have a negligible effect on habitat quality for arroyo toad). Temporary impacts to arroyo toad habitat will be restricted to 1 acre per project and 10 acres overall. Least Bell’s Vireo LBV 1 LBV-1 Habitat Assessment: A habitat assessment will be conducted by a biologist to determine whether suitable habitat (including foraging, nesting, and dispersal) for the vireo occurs in the action area. If suitable habitat for this species is identified in the action area and the proposed project may affect suitable habitat that is not known to be occupied by the vireo, the CFWO will be contacted regarding the need for surveys according to Service protocol, and those surveys will be conducted, as appropriate. With CFWO concurrence, FEMA may also forgo surveys by making a determination that suitable habitat is occupied for the purposes of section 7 consultation LBV 2 LBV-2 Seasonal Avoidance: To minimize effects to nesting vireos, all clearing of vegetation within occupied habitat will occur outside the breeding season (i.e., March 15-September 15) to the maximum extent practicable. If the breeding season cannot be avoided, a CFWO-approved biologist will conduct preconstruction nesting bird surveys, at least 48 hours before and no more than 1 week prior to vegetation removal. If no active nests are found to occur within 300 feet of the project area, project activities may proceed. LBV 3 LBV-3 Work Restrictions Near Active Nests: If an active nest is detected during the survey, either work will be suspended until the young have fledged/beginning of the non-breeding season, or the following will apply: a. An exclusionary buffer will be established around the nest. The buffer distance will be determined by the CFWO-approved biologist considering several factors: presence of natural buffers (vegetation/topography), nest height, location of foraging territory, nature of the proposed activities, and baseline levels of noise and human activity. The buffer may range from 50 feet to over 300 feet in width. AND b. A biologist will monitor the nest during construction for signs of adverse effects including distress/disturbance. If adverse effects are detected then the 231 FEMA (FWS-CFWO-16B0293-18F1358) 25 CFWO-approved biologist will have the authority to stop all construction in the vicinity of the nest and will coordinate with the Service to determine whether additional conservation measures will avoid or minimize effects on the nesting birds. Construction may resume only with approval from the Service. AND c. The biologist will continue to monitor the nest and determine when young have fledged. Once young have left the nest, the buffer and exclusion zone may be removed, and construction activities within these areas may resume. LBV 4 Habitat Avoidance: Staging and temporary construction areas will be located outside of suitable habitat and will use existing roads and developed areas to the extent possible. All mature riparian vegetation (e.g., willows and cottonwoods) greater than 30 feet in height will be avoided to the maximum extent possible. If mature riparian vegetation cannot be avoided, it will be either transplanted elsewhere within or near the action area or placed horizontally or diagonally outside the project footprint under the direction of a CFWO-approved biologist. LBV 5 LBV-5 Habitat Restoration Plan: Prior to construction, a Restoration Plan will be prepared that describes the efforts to restore all the areas of suitable habitat for the vireo that were temporarily impacted. The Restoration Plan will be reviewed and approved by the CFWO. LBV 6 LBV-6 Limits on Habitat Disturbance: For any specific project, temporary impacts on occupied or designated critical habitat by the vireo will be limited to a maximum of 1 acre. Temporary impacts from all the projects will also be limited to a maximum of 20 acres of vireo occupied or designated critical habitat. In addition, impacts will be limited to 10 vireo territories4. LBV 7 LBV-7 No Permanent Loss of Habitat: No permanent loss of occupied or designated critical habitat for the least Bell’s will occur unless the impacts to habitat are determined to be insignificant via project-level consultation (i.e., small permanent impacts that will have a negligible effect on habitat quality for least Bell’s vireo). Coastal California Gnatcatcher CAGN 1 Habitat Assessment: A habitat assessment will be conducted by a biologist to determine whether suitable habitat (including foraging, nesting, and dispersal) for the gnatcatcher occurs in the action area. If suitable habitat for this species is identified in the action area and the proposed project may affect suitable habitat that is not known to be occupied by the gnatcatcher, the CFWO will be contacted 4 Whether the level of impact to habitat in a given territory results in adverse effects will be determined on a case - by-case basis as specific projects are identified and submitted for project-level consultation. 232 FEMA (FWS-CFWO-16B0293-18F1358) 26 regarding the need for surveys according to the Service protocol and those surveys will be conducted, as appropriate. With CFWO concurrence, FEMA may also forgo surveys by making a determination that suitable habitat is occupied for the purposes of section 7 consultation. CAGN 2 Seasonal Avoidance: To minimize direct effects to nesting gnatcatchers, all clearing of vegetation within occupied or designated critical habitat (gnatcatcher habitat) will occur outside the breeding season (February 15-August 30) to the maximum extent practicable. If the breeding season cannot be avoided, a CFWO-approved biologist will conduct preconstruction nesting bird surveys prior to vegetation removal. If no active nests are found to occur within 300 feet of the area of disturbance, project activities may proceed. CAGN 3 Work Restrictions Near Active Nests: If an active nest is detected during the survey, either work will be suspended until the young have fledged/beginning of the non-breeding season or the following will apply: a. An exclusionary buffer will be established around the nest. The buffer distance will be determined by the CFWO-approved biologist considering several factors: presence of natural buffers (vegetation/topography), nest height, location of foraging territory, nature of the proposed activities, and baseline levels of noise and human activity. The buffer may range from 50 feet to over 300 feet in width. AND b. If an exclusion zone is established, a CFWO-approved biologist will monitor the nest during construction for signs of adverse effects including distress/disturbance. If adverse effects are detected, then the CFWO-approved biologist will have the authority to stop all construction activating in the vicinity of the nest and coordinate with the CFWO to determine whether additional conservation measures are can avoid or minimize effects on the nesting birds. Construction may resume only with approval from the CFWO. OR c. The biologist will continue to monitor the nest and will determine when young have fledged. Once young have left the nest the buffer and exclusion zone may be removed and construction activities within these areas may resume. CAGN 4 Habitat Avoidance: Project impacts will be avoided or minimized in coastal sage scrub, alluvial fan scrub, and other vegetation communities known to be occupied by the gnatcatcher. Staging and temporary construction areas will be located outside of suitable habitat and will use existing roads and developed areas to the maximum extent possible. If impacts to these habitats cannot be avoided, effects to gnatcatcher individuals will be avoided or minimized through implementation of the measures listed above. 233 FEMA (FWS-CFWO-16B0293-18F1358) 27 CAGN 5 Habitat Restoration Plan: Prior to construction, a Restoration Plan will be prepared that describes the efforts to restore all the areas that had temporary impacts on suitable habitat for the gnatcatcher. Restoration of temporary impacts will occur in accordance with a restoration plan that is reviewed and approved by the CFWO prior to the proposed project. CAGN 6 CAGN-6 Limits on Habitat Disturbance: For any specific project, temporary impacts on occupied or designated critical habitat for the gnatcatcher will be limited to a maximum of 1 acre. Temporary impacts from all the projects covered under this programmatic consultation will also be limited to a maximum of 20 acres of gnatcatcher occupied or designated critical habitat. In addition, impacts will be limited to 10 gnatcatcher territories5. CAGN 7 CAGN-7 No Permanent Loss of Habitat: No permanent loss of occupied or designated critical habitat for the gnatcatcher will occur. Santa Ana Sucker SASU 1 Biological Monitor and Seasonal Avoidance: Project activities in or adjacent to6 sucker occupied habitat will be monitored using a CFWO-approved biologist with the authority to stop work and will occur outside the spawning season (i.e., March through July). SASU 2 Limits on Habitat Disturbance: Project activities will not adversely affect sucker occupied habitat in the Santa Ana River or result in permanent loss of sucker habitat in any occupied waterway unless the impacts to habitat are determined to be insignificant via project-level consultation (i.e., small permanent impacts that will have a negligible effect on habitat quality for sucker). Temporary impacts will be restricted to a total of 0.5 mile of occupied habitat covered under this programmatic consultation, but not more than 0.1 mile of occupied habitat for a given project. SASU 3 SASU-3 Fish Passage: If a project includes the creation of an overflow or flood- bypass channel in a river or stream potentially supporting sucker, the design and construction of such a channel must allow fish passage out of the channel before waters dry up as the floodwater recedes. SASU 4 SASU-4 Dewatering Activities: In-channel work and channel diversion of live flow during project construction within occupied habitat for the sucker will be conducted in a manner to reduce potential impacts to rearing and migrating sucker. Dewatering will be used to create a dry work area and will be conducted in a 5 Whether the level of impact to habitat in a given territory results i n adverse effects will be determined on a case- by-case basis as specific projects are identified and submitted for project-level consultation. 6 The specific definition of “adjacent to” will be determined on a case -by-case basis. 234 FEMA (FWS-CFWO-16B0293-18F1358) 28 manner that minimizes turbidity into nearby waters. Water diversion and dewatering will include the following measures: a. Heavy equipment will avoid flowing water other than temporary crossing or diverting activities. b. If sucker may be present in the areas to be dewatered, a Service-approved fish rescue will be conducted by a Service-approved fisheries biologist in accordance with measures 75 and 76 below. c. Water pumped or removed from dewatered areas will be treated before its release so that it does not contribute turbidity to nearby waters. d. Pump intakes will be provisioned with National Marine Fisheries Service- approved fish screening as outlined in the California Department of Fish and Wildlife Fish Screening Criteria and National Marine Fisheries Service Fish Screening Criteria for Anadromous Salmonids (NMFS 1997). e. Temporary culverts to convey live flow during construction activities will be of an adequate size as to not increase stream velocity and placed at stream grade. f. Silt fences or mechanisms to avoid sediment input to the flowing channel will be erected adjacent to flowing water if sediment input to the stream may occur. SASU 5 Fish Capture and Relocation Plan: For projects that require fish rescue and relocation, a fish relocation plan will be developed and submitted to the CFWO for approval. This plan will incorporate the latest Service guidance relating to the capture and relocation of fish. SASU 6 Service-Approved Biologist for Fish Relocation: Fish relocation will only be conducted by a Service-approved fisheries biologist. If a fisheries biologist is needed, the subapplicant will submit the fisheries biologist’s qualifications to the CFWO for approval 30 days prior to project construction. The fisheries biologist will have knowledge and experience in sucker biology and ecology, fish/habitat relationships, and biological monitoring, and handling, collecting, and relocating sucker or other relevant experience. The biologist will relocate any stranded fish to an appropriate place depending upon the life stage of the fish and flow conditions in the vicinity. The biologist will note the number of individuals observed in the affected area, the number of individuals relocated, the approximate size of individuals, and the date and time of the collection and relocation. One or more of the following methods will be used to capture sucker: electrofishing, dip net, seine, throw net, minnow trap, and hand. 235 FEMA (FWS-CFWO-16B0293-18F1358) 29 Action Area According to 50 CFR § 402.02 pursuant to section 7 of the Act, the “action area” means all areas to be affected directly or indirectly by the Federal action. Subsequent analyses of the environmental baseline, effects of the action, and levels of incidental take are based upon the action area. The action area for this consultation encompasses the jurisdiction of the CFWO. STATUS OF THE SPECIES/CRITICAL HABITAT Quino Checkerspot Butterfly The Service federally listed Quino as endangered on January 16, 1997 (Service 1997), and issued a recovery plan on August 11, 2003 (Service 2003). This species is known from western Riverside County and San Diego County. The number of known populations has increased since listing. Based on our current methodology for identifying populations, five populations were known at listing, and more than 20 populations are known post-listing (Service 2009a). The Quino is a subspecies of the Edith’s checkerspot butterfly (Euphydryas editha). It differs from other subspecies by size, wing coloration, and larval and pupal phenotype. The Quino life cycle includes four distinct life stages: egg, larva (caterpillar), pupa (chrysalis), and adult. There is usually one generation of adults per year, although larvae may remain in diapause for multiple years prior to maturation. Quino require an external heat source to increase their metabolic rate to levels needed for normal growth and behavior. Larvae seek microclimates with high solar exposure for basking in order to speed their growth rate. Also, like most butterflies, adults frequently bask and remain in sunny areas to increase their body temperature to the level required for normal active behavior (Service 2009a). In addition, larval host plants for Quino are often associated with cryptogamic crusts (a thin organic crust composed of cyanobacteria, lichens, mosses, and fungi). Cryptogamic crusts also inhibit growth of nonnative plants (Service 2003). Cryptogamic crusts have become rare due to past and ongoing ground disturbance, such as grazing (Service 2003). The status of Quino was described in detail in the 5-year review for this species (Service 2009a). Please refer to this document and the recovery plan for detailed information on life history requirements, threats, and conservation needs of this species The 5-year review of Quino checkerspot butterfly recommends working with partners near the community of Anza to protect habitat; research on herbicides, the Campo core population, and secondary host plants; conducting an experimental reestablishment at Irvine Ranch Preserve; conducting surveys at California Department of Fish and Wildlife preserve lands near Ramona; monitoring core populations, and considering updating the recovery plan. Subsequent to completion of the 5-year review in 2009, the Service issued a non-jeopardy and no adverse modification biological and conference opinion addressing construction and long-term operations and maintenance of the Sunrise Powerlink (SRPL) Project (Service 2010a). The SRPL Project included construction of a high-voltage 117-mile transmission line and related facilities from south of El Centro in Imperial County to the northeast edge of Marine Corps Air Station Miramar in San Diego County. The biological and conference opinion addressed the 236 FEMA (FWS-CFWO-16B0293-18F1358) 30 impacts (i.e., loss and/or temporary disturbance) to 6 acres of Quino occupied habitat due to construction and an additional 23 acres due to maintenance and vegetation management activities. Impacts to the Quino as a result of the SRPL Project were fully offset through acquisition and provision of long-term management of Quino occupied habitat at the Long Potrero site in San Diego County, just south of the Descanso Ranger District of the Cleveland National Forest. This site was estimated to have 812 acres of Quino occupied habitat (Service 2010a). Critical Habitat On July 17, 2009, the Service designated approximately 62,125 acres of critical habitat for the Quino (Service 2009b). This critical habitat occurs in 9 units including the Skinner/Johnson Unit (5,444 acres), Sage Unit (123 acres), Wilson Valley Unit (463 acres), Vail Lake/Oak Mountain Unit (1,788 acres), Tule Peak Unit (326 acres), Bautista Unit (13,880 acres), Otay Unit (34,941 acres), La Posta/Campo Unit (355 acres) and Jacumba Unit (2,514 acres). The physical and biological features (PBFs7) of designated critical habitat for Quino are: 1. Open areas within scrublands at least 21.5 square feet in size that: a. contain no woody canopy cover; and b. contain one or more of the host plants Plantago erecta, Plantago patagonica, Antirrhinum coulterianum, or Collinsia concolor used for Quino growth, reproduction, and feeding; or c. contain one or more of the host plants Cordylanthus rigidus or Castilleja exserta that are within 328 feet of the host plants listed in b) above; or d. contain flowering plants with a corolla tube less than or equal to 0.43 inch used for Quino feeding; 2. Open scrubland areas and vegetation within 656 feet of the open canopy areas used for movement and basking; and 3. Hilltops or ridges within scrublands that contain an open, woody-canopy area at least 21.5 square feet in size used for Quino mating (hilltopping behavior) and are contiguous with (but not otherwise included in) open areas and natural vegetation described in PBFs 1 and 2 above. 7 The designation(s) of critical habitat for (species) use(s) the term primary constituent element or essential features. The new critical habitat regulations (81 FR 7214) replace this term with PBFs. This shift in terminology does not change the approach used in conducting our analysis, whether the original designation identified primary constituent elements, PBFs, or essential features. In this consultation, we use the term PBFs to mean primary constituent elements or essential features, as appropriate for the specific critical habitat. 237 FEMA (FWS-CFWO-16B0293-18F1358) 31 Arroyo Toad The Service federally listed arroyo toad as endangered on December 16, 1994 (Service 1994a), and on July 24, 1999, issued the Arroyo southwestern toad (Bufo microscaphus californicus) recovery plan (arroyo toad recovery plan) (Service 1999). The arroyo toad recovery plan identifies recovery units and number of populations for each unit to allow for delisting. The arroyo toad is a small, light-olive green or gray to tan toad with dark spots and warty skin. Arroyo toads are terrestrial for much of the year and can range widely into upland habitat for foraging and burrowing, but they use aquatic habitat for breeding. Breeding occurs in shallow, slow-moving stream systems and may occur from January to July. Breeding tends to occur earlier in coastal areas than inland areas (Service 1999). Thirty-five populations of arroyo toad are distributed from Monterey County, California in the United States south to Baja California, Mexico (Service 2015). Urbanization, agriculture, and dams are the main reasons for the decline of arroyo toad and are also current threats. Other threats include water management activities and diversions; road construction, maintenance, and use; grazing; mining; recreation; and nonnative plants and animals (Service 1999). More detailed information on the status of arroyo toad can be found in the arroyo toad recovery plan, 5-year review (http://ecos.fws.gov/docs/five_year_review/doc2592.pdf) (Service 2009) and the latest rule regarding this species (Service 2015). Please refer to these documents for detailed information on life history requirements, threats, and conservation needs of the species rangewide. Critical Habitat On February 9, 2011, the Service designated approximately 98,366 acres of critical habitat for the arroyo toad (Service 2011a). This critical habitat occurs in 21 units within Santa Barbara, Ventura, Los Angeles, San Bernardino, Riverside, Orange, and San Diego counties, California. The PBFs of designated critical habitat for the arroyo toad are: 1. Rivers or streams with hydrologic regimes that supply water to provide space, food, and cover needed to sustain eggs, tadpoles, metamorphosing juveniles, and adult breeding arroyo toads. Breeding pools must persist a minimum of 2 months for the completion of larval development. However, due to the dynamic nature of southern California riparian systems and flood regimes, the location of suitable breeding pools may vary from year to year. Specifically, the conditions necessary to allow for successful reproduction of arroyo toads are: (a) breeding pools that are less than 6 inches deep; (b) areas of flowing water with current velocities less than 1.3 feet per second; and (c) surface water that lasts for a minimum of 2 months during the breeding season (a sufficient wet period in the spring months to allow arroyo toad larvae to hatch, mature, and metamorphose). 2. Riparian and adjacent upland habitats, particularly low-gradient (typically less than 6 percent) stream segments and alluvial streamside terraces with sandy or fine gravel substrates that support the formation of shallow pools and sparsely vegetated sand 238 FEMA (FWS-CFWO-16B0293-18F1358) 32 and gravel bars for breeding and rearing of tadpoles and juveniles; and adjacent valley bottomlands that include areas of loose soil where arroyo toads can burrow underground, to provide foraging and living areas for juvenile and adult arroyo toads. 3. A natural flooding regime, or one sufficiently corresponding to natural, that: (a) is characterized by intermittent or near-perennial flow that contributes to the persistence of shallow pools into at least mid-summer; (b) maintains areas of open, sparsely vegetated, sandy stream channels and terraces by periodically scouring riparian vegetation; and (c) also modifies stream channels and terraces and redistributes sand and sediment, such that breeding pools and terrace habitats with scattered vegetation are maintained. 4. Stream channels and adjacent upland habitats that allow for movement to breeding pools, foraging areas, overwintering sites, upstream and downstream dispersal, and connectivity to areas that contain suitable habitat. Least Bell’s Vireo With an estimated 2,968 vireo territories as of 2006, the number of vireo territories has increased 10-fold since listing in 1986, when only 291 territories were known. Existing territories occur in San Diego, Riverside, Orange, San Bernardino, Los Angeles, Ventura, Santa Barbara, Inyo, Kern, Monterey, San Benito, and Stanislaus counties. An estimated 898 territories occur in Riverside County, while an estimated 87 territories occur in San Bernardino County (Service 2006). The status of vireo was described in detail in the 5-year review for Least Bell's Vireo (Service 2006). The 5-year review recommended downlisting of the species to threatened status based on a reduction of threats and growth of the population 10-fold since listing. Please refer to this document for information on the status of vireo rangewide and for detailed information on the life history requirements, threats, and conservation needs of the species. A draft recovery plan for vireo was issued in 1998 (Service 1998). However, a new threat has emerged that has the potential to significantly impact vireo nesting throughout its range. A disease complex involving two species of ambrosia beetles, the polyphagous shot hole borer (Euwallacea sp. 1) and Kurushio shot hole borer (Euwallacea sp. 5), a mix of associated fungi (Lynch et al. 2016), and other pathogens is causing widespread damage to trees in riparian ecosystems throughout southern California (Eskalen et al. 2013). These shot hole borers create galleries in trees and inoculate the galleries with fungal spores. Fusarium sp. causes significant damage to trees, and the galleries open up trees to attack from other pathogens that may be even more damaging. The combination of structural damage from the galleries and tissue damage from the pathogens causes limbs to break and trees to die. For example, occupied habitat in the Tijuana River (Recovery Unit 1) has already been infested, and an estimated 140,000 trees or 35 percent of the trees showed extensive damage from the disease complex (Boland 2016). Willow species are particularly susceptible to damage from the infestation. Preliminary reports suggest that the Prado Basin (Recovery Unit 7) and the San Luis Rey River (Recovery Unit 5) also have 239 FEMA (FWS-CFWO-16B0293-18F1358) 33 substantial infestations. The Sweetwater River (Recovery Unit 3) and San Diego Creek (Recovery Unit 8) are also known to be infested. No systematic, regional surveys have been conducted, and it is likely that additional vireo habitat is infested. Because vireos require structure associated with willows and similar species, we anticipate that vireo breeding success will decline in infested habitats. It is too early to determine how this significant new threat will affect the overall status of the species. Significant mortality of mature trees related to this threat may alter vireo prey availability, increase exposure to predation (especially for vireo nests), and affect hydrogeomorphic processes (e.g., flooding, alluvial deposition) important for maintaining healthy riparian woodlands that vireos use for feeding, sheltering, and breeding. Critical Habitat Critical habitat for the vireo was designated on March 4, 1994 (Service 1994b), encompasses a total of about 36,000 acres in 10 localities in Santa Barbara, Ventura, Los Angeles, San Bernardino, Riverside, and San Diego counties. The PBFs of designated critical habitat include riverine and floodplain habitats (particularly willow-dominated riparian woodland with dense understory vegetation maintained, in part, in a non-climax stage by periodic floods or other agents) and adjacent coastal sage scrub, chaparral, or other upland plant communities (Service 1994b). Santa Ana Sucker The sucker was listed as a threatened species in 2000 (Service 2000). The federally listed sucker is restricted to three non-contiguous populations: in lower Big Tujunga Canyon watershed (Los Angeles River drainage); the East, West, and North forks of San Gabriel River; and the lower and middle sections of the Santa Ana River watershed. A small population also occurs in San Dimas Canyon, a tributary to San Gabriel River. Populations in Santa Clara River watershed, including Piru and Sespe creeks (Swift et al. 1993), are not considered to be the listed entity. The status of sucker was described in detail in: 1. The 5-year review (Service 2011b), 2. The recovery outline (Service 2012) and; 3. The Santa Ana sucker recovery plan (Service 2017) Please refer to these documents for information on the status of sucker rangewide and for detailed information on life history requirements, threats, and conservation needs of the species. Critical Habitat Critical habitat for the sucker was designated on December 14, 2010 (Service 2010b). Sucker designated critical habitat occurs in the Santa Ana River Unit (Unit 1 (7,097 acres)), San Gabriel River Unit (Unit 2 (1,000 acres)), and Big Tujunga Creek Unit (Unit 3 (1,233 acres) (Service 2010b). The PBFs of designated critical habitat for the sucker include: 240 FEMA (FWS-CFWO-16B0293-18F1358) 34 1. A functioning hydrological system within the historical geographic range of sucker that experiences peaks and ebbs in the water volume (either naturally or regulated) that encompasses areas that provide or contain sources of water and coarse sediment necessary to maintain all life stages of the species, including adults, juveniles, larvae, and eggs, in the riverine environment; 2. Stream channel substrate consisting of a mosaic of loose sand, gravel, cobble, and boulder substrates in a series of riffles, runs, pools, and shallow sandy stream margins necessary to maintain various life stages of the species, including adults, juveniles, larvae, and eggs, in the riverine environment; 3. Water depths greater than 1.2 inches and bottom water velocities greater than 0.01 feet per second; 4. Clear or only occasionally turbid water; 5. Water temperatures less than 86 °F; 6. Instream habitat that includes food sources (such as zooplankton, phytoplankton, and aquatic invertebrates), and associated vegetation such as aquatic emergent vegetation and adjacent riparian vegetation to provide: (a) Shading to reduce water temperature when ambient temperatures are high, (b) shelter during periods of high water velocity, and (c) protective cover from predators; and 7. Areas within perennial stream courses that may be periodically dewatered, but that serve as connective corridors between occupied or seasonally occupied habitat and through which the species may move when the habitat is wetted. Coastal California Gnatcatcher The Service listed the gnatcatcher as threatened on March 30, 1993 (Service 1993) and published a revised final rule designating critical habitat on December 19, 2007 (Service 2007). It has no recovery plan. The range of the gnatcatcher is coastal southern California and northwestern Baja California, Mexico. More specifically, this species ranges from southern Ventura and San Bernardino counties, California, south to near El Rosario, Mexico, at about 30 degrees north latitude (Service 2010c). The northern and eastern limits of the coastal scrub communities used by the gnatcatcher are largely bound by mountainous areas, while the southern limit is defined by the transition to the Vizcaíno desert. Gnatcatchers were considered locally common in the mid-1940s, but they had declined substantially in the United States by the 1960s (Atwood 1980). At the time of listing in 1993, we estimated about 2,562 pairs of gnatcatchers remained in the United States (Service 1993), though this estimate was not statistically valid because it was calculated using methods not supported by probability theory (Winchell & Doherty 2008). Additionally, population sizes are known to fluctuate from year to year (Atwood & Bontrager 2001), which further complicates any trend assessment. Winchell & Doherty (2008) estimated there were 1,324 (95 percent confidence 241 FEMA (FWS-CFWO-16B0293-18F1358) 35 interval: 976-1,673) gnatcatcher pairs over an 111,006-acre area on some public and quasi-public lands of Orange and San Diego counties. In September 2010, the Service completed a 5-year review addressing the status of the gnatcatcher (Service 2010c). Please refer to this document for detailed information on the life history requirements, threats, and conservation needs. Critical Habitat The 11 designated critical habitat units for the gnatcatcher include 197,303 acres of Federal, State, local, and private land in Ventura, Los Angeles, Orange, Riverside, San Bernardino, and San Diego counties (Service 2007). Designated critical habitat includes habitat throughout the species’ range in a variety of climatic zones and vegetation types to preserve the genetic and behavioral diversity that currently exists within the species. The individual units contain essential habitat and help to identify special management considerations. PBFs of designated critical habitat for the gnatcatcher are those habitat components that are essential for the primary biological needs of foraging, nesting, rearing of young, intra-specific communication, roosting, dispersal, genetic exchange, or sheltering (Service 2007). These include: (1) dynamic and successional sage scrub habitats (i.e., Venturan coastal sage scrub, Diegan coastal sage scrub, Riversidean sage scrub, maritime succulent scrub, Riversidean alluvial fan scrub, southern coastal bluff scrub, and coastal sage-chaparral scrub) that provide space for individual and population growth, normal behavior, breeding, reproduction, nesting, dispersal, and foraging; and (2) non-sage scrub habitats such as chaparral, grassland, and riparian areas, in proximity to sage scrub habitats that provide space for dispersal, foraging, and nesting. ENVIRONMENTAL BASELINE Regulations implementing the Act (50 CFR § 402.02) define the environmental baseline as the past and present impacts of all Federal, State, or private actions and other human activities in the action area. Also included in the environmental baseline are the anticipated impacts of all proposed Federal projects in the action area that have undergone section 7 consultation and the impacts of State and private actions which are contemporaneous with the consultation in progress. Quino Checkerspot Butterfly and Santa Ana Sucker Since the action area includes the jurisdiction of the CFWO and Quino and the federally listed sucker and their designated critical habitats are entirely within this area, the Environmental Baseline for these species and their designated critical habitats is the same as the Status of the Species. 242 FEMA (FWS-CFWO-16B0293-18F1358) 36 Arroyo Toad The Environmental Baseline for the arroyo toad is the same as for the Status of the Species, except that the San Antonio, Sisquoc, Upper Santa Ynez, Sespe, Piru, and Upper Santa Clara populations and units 2-6 of designated critical habitat are outside of CFWO jurisdiction. Least Bell’s Vireo Of the estimated 2,968 vireo territories as of 2006, about 2,500 are in the jurisdiction of the CFWO, including the Tijuana, Dulzura, Jamul, Otay, Sweetwater, San Diego, San Luis Rey, Santa Margarita, and Santa Ana river/creek populations. The smallest number was found at the Dulzura Creek/Jamul River/Otay River population, which had 36 territories. For vireo designated critical habitat, the Environmental Baseline is the same as for the Status of the Species except it excludes the Santa Ynez River and Santa Clara River. Designated critical habitat in the Santa Ana River, Santa Margarita River, San Luis Rey River, San Diego River, Sweetwater River, Jamul-Dulzura creeks, and Tijuana River are entirely within the action area. Coastal California Gnatcatcher The Environmental Baseline for gnatcatcher is the same as for the Status of the Species, except that it excludes gnatcatchers that occur in Ventura and western Los Angeles counties, which center around and include the Moorpark area. Also, units 1-3, 5-10, and 12 of designated critical habitat are entirely within the action area, while unit most of unit 13 is outside the action area (i.e., 55,060 acres of 57,737 acres of designated critical habitat is outside the action area). EFFECTS OF THE ACTION Effects of the action refer to the direct and indirect effects of an action on the species or critical habitat that will be added to the environmental baseline, along with the effects of other activities that are interrelated or interdependent with that action. Interrelated actions are those that are part of a larger action and depend on the larger action for their justification. Interdependent actions are those that have no independent utility apart from the action under consideration. Indirect effects are those that are caused by the proposed action and are later in time, but are still reasonably certain to occur. Effects can be analyzed and found to be discountable or insignificant. Discountable effects are extremely unlikely to occur. Insignificant effects relate to the size of the impact and do not result in incidental take of a species. Discountable and Insignificant Effects The effect of fugitive dust on Quino and the potential for nonnative plants to increase within the action area and negatively affect Quino, arroyo toad, gnatcatcher, vireo, sucker and their associated critical habitats, where designated, were considered but determined to be reduced to a level of insignificance with the conservation measures committed to by FEMA. Fugitive dust from project activities can negatively affect photosynthesis and decrease water-use efficiency of plants (Sharifi et al. 1997), including Quino host and nectar plants (PBF 1). 243 FEMA (FWS-CFWO-16B0293-18F1358) 37 However, due to the temporal and small-scale nature of project activities and implementation of best management practices such as speed limits, covering potential wind-blown materials, and use of water or other binding materials during construction, impacts from dust on Quino should be insignificant. Project activities have the potential to introduce nonnative plants to the action area by carrying seeds on vehicles, people, or equipment, and through ground disturbance. Ground disturbance can promote the establishment and spread of nonnative plants (Merriam et al. 2006). Such plants can degrade habitat quality for Quino and its critical habitat by competing with and replacing host and nectar plants (PBF 1), which is the greatest threat to Quino reserves (Service 2003). However, restoration of temporary impacts, in accordance with a plan reviewed and approved by the Service, best management practices, and use of a biological monitor will avoid or minimize the potential for the spread of nonnative species. Further, ground disturbance of Quino occupied habitat for a given project will be limited to 2 acres. Thus, the potential for impacts to Quino and its designated critical habitat due to nonnative plants is discountable. Likewise, nonnative plants introduced by vehicles and ground disturbance, such as tamarisk (Tamarix species) and giant reed (Arundo donax), can stabilize stream terraces and deepen channels, affecting all four PBFs of designated critical habitat and making habitat unsuitable for arroyo toads (Service 1999). White sweet clover (Melilotus alba) and iceplant (Mesembryanthemum species) can result in the loss of arroyo toad upland habitat by covering stream terraces and creating densely vegetated areas that arroyo toads cannot move through, which will impact PBF 2 (riparian and upland habitats) and 4 (connectivity). Again, the conservation measures proposed to restore temporary impacts and to use best management practices and a biological monitor will avoid or minimize the spread of nonnative species. Thus, the potential for impacts to arroyo toads and its designated critical habitat due to nonnative plants is discountable. Project activities that result in the introduction and/or spread of the nonnative plant species, particularly giant reed, can form dense stands that are unsuitable for vireos (Service 2002). The restoration of temporary impacts in accordance with a plan reviewed and approved by the CFWO, best management practices, and use of a biological monitor should effectively avoid or minimize the potential for the spread of nonnative species. In addition, project activities for a given project will be restricted to a maximum of 1 acre. Thus, the potential for impacts to vireo due to nonnative plants is discountable. Establishment or spread of nonnative species such as tamarisk and giant reed and the loss of streamside riparian habitat can negatively affect habitat conditions for sucker via reduction in the availability of water (Stephenson & Calcarone 1999) and impact PBF 1 (functioning hydrological system), 3 (water depth and velocity), and 5 (water temperature) of sucker critical habitat. Native riparian vegetation provides cover and protection from predators and provides shade that can reduce water temperatures, which sucker tend to prefer8. Increased water 8 Sucker prefer cooler water temperatures, but have been found in water between 59 degrees and 82 degrees Fahrenheit (Service 2010b). 244 FEMA (FWS-CFWO-16B0293-18F1358) 38 temperatures could result in increased needs for food quantity and quality to survive and/or maintain growth rates (Lessard & Hayes 2003), leading to sucker death or injury. The conservation measures proposed to restore temporary impacts and to use best management practices and a biological monitor will address these impacts. Thus, the potential for impacts to sucker and its designated critical habitat due to nonnative plants is discountable. Finally, construction and maintenance activities could result in the introduction and/or spread of nonnative plant species, such as annual grasses, that can alter the fire regime and result in the loss via conversion of suitable nesting habitat for gnatcatchers, As with the other species discussed, the restoration of temporary impacts, best management practices, and use of a biological monitor should effectively avoid or minimize the potential for the spread of nonnative species. Also, the impacts associated with a given project will be small scale (i.e., a maximum of 1 acre). Thus, the potential for impacts to gnatcatchers due to nonnative plants is discountable. Quino Checkerspot Butterfly The proposed projects have the potential to kill or injure Quino larvae and eggs via crushing. In addition to loss of individual Quino larvae, the destruction of Quino occupied habitat could harm Quino by reducing the availability of oviposition sites, larval food sources, pupal sheltering sites, and adult nectar sources within the action area. However, impacts to host and nectar plants will be minimized by the maintenance of protective barriers and fencing. In addition, no permanent impacts to Quino occupied habitat will occur, no temporary or permanent impacts to core occurrences will occur, and temporary impacts will not result in more than 2 acres of ground disturbance of Quino occupied habitat for a given project. Further, not more than 50 acres of Quino occupied habitat will be impacted overall9. This represents a small proportion of occupied habitat for the species within the action area. In addition, the most important areas of Quino occupied habitat will be avoided (i.e., core occurrence complexes) unless impacts are determined to be insignificant via project-specific consultation (i.e., small impacts that will have a negligible effect on habitat quality for Quino). Although we do not have an accurate acreage estimate of occupied Quino habitat throughout the species range, the total proposed impacts will affect a small fraction of the available habitat. In addition, the restriction for each project will help ensure that no single population is significantly impacted to the extent that the viability of that population or the species as a whole is at risk. Restoration of temporary impacts to Quino habitat will occur in accordance with a restoration plan that is reviewed and approved by the CFWO prior to implementation of the proposed projects. Thus, the proposed action is not expected to appreciably reduce the numbers, distribution or reproduction of the species. Critical Habitat The proposed project could impact PBF 1 (host and nectar plants) via ground disturbance that destroys host and nectar plants. However, impacts to host and nectar plants will be minimized by the maintenance of protective barriers and fencing. In addition, impacts will be temporary, no 9 Overall in this document means considering all the projects under the consultation combined. 245 FEMA (FWS-CFWO-16B0293-18F1358) 39 more than 2 acres will be impacted for a given project, and no more than 50 acres of Quino habitat will be impacted overall, which represents a small proportion of the 62,125 acres of designated critical habitat. Further, monitoring, education of project personnel, and restoration of temporary impacts will occur in accordance with a plan reviewed and approved by the CFWO. Thus, no appreciable reduction in the ability of the critical habitat to provide for the survival and recovery of this species will occur. Impact on Recovery The proposed project does not conflict with the recovery actions or goals described in the Quino recovery plan (Service 2003). Maintaining as much Quino habitat as possible is considered necessary for the recovery of this species (Service 2003). However, only 50 acres of temporary impacts and no permanent impacts are expected under the proposed action. In addition, individual projects will not impact more than 2 acres. This small, temporary, and intermittent loss of habitat will not affect the long-term viability of the occurrence complexes or fragment Quino habitat within the action area or across recovery units. Thus, the proposed action will not significantly impact the ability of Quino to recover. Arroyo Toad and its Designated Critical Habitat Project activities could result in the crushing of individual arroyo toads, larvae, and eggs. In addition, mortality and injury can occur during the handling and relocation of arroyo toads. Also, the stress of relocation has the potential to make arroyo toad more susceptible to disease or predation. However, staging areas will be kept out of arroyo toad occupied habitat, project personnel will be appropriately trained to minimize impacts, a biological monitor will help ensure measures to minimize impacts are implemented, and relocation of arroyo toads will occur to minimize direct impacts, as necessary. Further, permanent impacts to arroyo toad habitat will be avoided unless such impacts are determined to be insignificant via project-specific consultation (i.e., small impacts that will have a negligible effect on habitat quality for arroyo toads). Temporary impacts will be restricted to a total of 10 acres of occupied habitat, with no more than 1 acre of impact for each project. Given the amount of habitat available to arroyo toads in the action area and across its range, the proposed action will affect a small fraction of the available habitat rangewide or supporting any specific arroyo toad population. Although we do not have site-specific information regarding the distribution of arroyo toads within the project footprint, the proposed conservation measures and project-specific consultation will ensure that project activities do not have a disproportional impact on arroyo toad populations. Thus, only a fraction of arroyo toads within any affected population are anticipated to be injured or killed, and proposed activities will not appreciably reduce the numbers, distribution, or reproduction of the species. Project activities could also impact water quality (PBF 110) through accidental spills, which may result in mortality or injury to arroyo toads, and the introduction of contaminants into streams, which has the potential to increase nitrogen levels. Streams with enhanced nitrogen levels can 10 PBF 1 includes water to provide space, food, and cover 246 FEMA (FWS-CFWO-16B0293-18F1358) 40 cause death and developmental abnormalities in animals and impact prey populations (Rouse et al. 1999). In addition, dust and soil erosion from construction and ground disturbing activities near and within stream could impact stream water quality (PBF 1). This sedimentation can lead to the smothering of eggs and tadpoles (Rabeni & Smale 1995), filling of habitat, restriction of water flow, and the consequent reduction of oxygen levels. These effects vary depending on the amount of sediment introduced into the stream, the amount of stream flow, gradient, and several other instream factors. However, measures are proposed to prevent spills and impacts to water quality via sedimentation, including development of project-specific erosion, spill, and hazardous material control plans; transport of pollutants off site; service and fueling of vehicles in upland areas; staging outside the floodplain during flood season; use of silt fencing and erosion control blankets, as appropriate; and removal of trash. Further, impacts will be restricted to 1 acre of occupied habitat per project and 10 acres of occupied habitat overall. Thus, impacts should be effectively minimized and not appreciably reduce the numbers, distribution, or reproduction of arroyo toads or the function of designated critical habitat in providing for the survival and recovery of arroyo toads. Impact on Recovery The proposed activities do not conflict with the recovery actions or goals described in the recovery plan because permanent loss of habitat is not expected. Further, the potential for impacts from the proposed activities are effectively minimized due to the proposed conservation measures. Finally, due to the proposed measures and project limitations, the number of arroyo toad that may be affected is a small proportion of the total and regional populations. Thus, the proposed action will not significantly impact the ability of arroyo toad to recover. Least Bell’s Vireo Since nests will be protected from direct impacts, eggs and nestlings will not be directly impacted under the proposed action. However, the proposed projects could result in the removal of vegetation including PBF 1 (riparian woodlands), reducing the availability of foraging and nesting resources. Vireos tend to show site fidelity and return to breeding territories in subsequent years (Service 1998). Thus, even destruction of habitat outside the breeding season could impact this species. Vireos could be forced to compete with each other when attempting to expand an existing territory or establish a new territory or miss the opportunity to breed. Also, if displaced birds cannot find suitable habitat to forage and shelter in, they will be more vulnerable to predation and may die or be injured. Vireos that successfully establish territories in adjacent habitat are expected to experience reduced productivity (e.g., delayed initiation or prevention of nest building, fewer nesting attempts per season, and/or overall reduction in reproductive output) due to reduced availability of foraging and breeding habitat and increased territorial interactions. Project generated noise could also interfere with courtship behavior or cause temporary or permanent abandonment of the nesting territory (Gunn & Livingston 1974). Excessive noise can 247 FEMA (FWS-CFWO-16B0293-18F1358) 41 mask the song of a male vireo, thereby inhibiting his chance of attracting a mate (Scherzinger 1979). Excessive noise can also mask the presence of predators to the vireo (Shen 1983). However, the proposed action includes use of an exclusionary buffer around nests during the breeding season, which should help minimize the potential impacts due to noise. In addition, for any specific project, impacts on vireo occupied or designated critical habitat will be limited to a maximum of 1 acre. Further, impacts from all the projects will be limited to a maximum of 20 acres of vireo occupied habitat or designated critical habitat, and no permanent loss of habitat is expected. Finally, impacts will be limited to 10 vireo territories, which is a small portion of the approximately 3,000 territories rangewide. Thus, impacts will be small in scale and impact a relatively small number of vireos. Impacts are also likely to be scattered throughout the range of the vireo and occur intermittent over the life of the project activities. Therefore, the proposed action is not expected to appreciably reduce the numbers, distribution or reproduction of the species or ability of critical habitat to provide for survival and recovery. Impact on Recovery The proposed activities do not conflict with the recovery actions or goals described in the draft recovery plan or the 5-year review because permanent loss of habitat is not expected and temporary impacts should be small in scale, spread out over the range of the species, and intermittent over the life of project activities. Further, the potential for impacts from the project activities are effectively minimized due to the proposed conservation measures. Finally, the number of vireos that may be affected is a small proportion of the total and regional populations. Thus, the proposed action will not significantly impact the ability of vireo to recover. Santa Ana Sucker and its Designated Critical Habitat Potential direct effects of this project to the sucker include the crushing of individuals. In addition, mortality and injury can occur during the handling and relocation of sucker. Also, the stress of relocation has the potential to make the sucker more susceptible to disease or predation. Finally, impingement on block nets and subsequent predation is a potential source of mortality. However, staging areas will be kept out of sucker occupied habitat, project personnel will be appropriately trained to minimize impacts, a biological monitor will help ensure measures to minimize impacts are implemented, and relocation of sucker will occur, as necessary. Further, permanent impacts and impacts to sucker in the Santa Ana River will be avoided and temporary impacts will be restricted to a total of 0.5 mile of occupied habitat, but not more than 0.1 mile of occupied habitat for a given project. Thus, given the miles of habitat available to the sucker in Big Tujunga (13 miles) and the West, East, and North forks of the San Gabriel River (26 miles), which will represent a small proportion of the population in either watershed, and the relocation of potentially affected sucker to nearby suitable habitat, the proposed action will not appreciably reduce the numbers, distribution, or reproduction of the species. Project activities could also impact water quality (PBF 4) through accidental spills, which may result in mortality or injury to Santa Ana sucker and food sources (PBF 6), and the introduction of contaminants into streams, which has the potential to increase nitrogen levels. Streams with 248 FEMA (FWS-CFWO-16B0293-18F1358) 42 enhanced nitrogen levels can cause death and developmental abnormalities in animals and impact prey populations (Rouse et al. 1999). In addition, dust and soil erosion from construction and ground disturbing activities near and within stream could impact stream water quality (PBF 4). This sedimentation can lead to the smothering of eggs (Rabeni & Smale 1995), filling of habitat, restriction of water flow, the consequent reduction of oxygen levels. The filling of habitat and the reduction of access to cobble/gravel substrates preferred by the sucker (Service 2005). These effects vary depending on the amount of sediment introduced into the stream, the amount of stream flow, gradient, and several other instream factors. However, measures are proposed to prevent spills and impacts to water quality via sedimentation, including development of project-specific erosion, spill, and hazardous material control plans; transport of pollutants off-site; service and fueling of vehicle in upland areas; staging outside the floodplain during flood season; use of silt fencing and erosion control blankets, as appropriate; and removal of trash. Further, impacts will be restricted to 0.1 mile of occupied habitat or designated critical habitat per project and 0.5 mile of occupied or designated critical habitat overall. Thus, impacts should be effectively minimized and will not appreciably reduce the numbers, distribution, or reproduction of the species or ability of designated critical habitat to provide for its survival and reproduction. Impact on Recovery The proposed activities do not conflict with the recovery actions or goals described in the recovery plan because permanent loss of habitat is not expected. Further, the potential for impacts from the proposed activities are effectively minimized due to the proposed conservation measures. Finally, due to the proposed measures and project limitations, the number of sucker that may be affected is a small proportion of the total and regional populations. Thus, the proposed action will not significantly impact the ability of sucker to recover. Coastal California Gnatcatcher Since nests will be protected from direct impacts, eggs and nestlings will not be directly impacted under the proposed action. However, the proposed project could result in the removal of vegetation, reducing the availability of foraging and nesting resources for gnatcatchers. Thus, gnatcatchers could be forced to compete with each other when attempting to expand an existing territory or establish a new territory or miss the opportunity to breed. If displaced birds cannot find suitable habitat to forage and shelter in, they will be more vulnerable to predation and otherwise may die or be injured. Gnatcatchers that successfully establish territories in adjacent habitat are expected to experience reduced productivity (e.g., delayed initiation or prevention of nest building, fewer nesting attempts per season, and/or overall reduction in reproductive output) due to reduced availability of foraging and breeding habitat and increased territorial interactions. Effects may also occur due to noise associated with project activities. Noise may interfere with courtship behavior or cause temporary or permanent abandonment of the nesting territory (Gunn & Livingston 1974). Excessive noise can mask the song of a male gnatcatcher, thereby inhibiting 249 FEMA (FWS-CFWO-16B0293-18F1358) 43 his chance of attracting a mate (Scherzinger 1979). Excessive noise can also mask the presence of predators to the gnatcatcher (Shen 1983). However, the proposed action includes use of an exclusionary buffer during the breeding season, which should help minimize the potential impacts due to noise. In addition, for any specific project, temporary impacts on occupied habitat for the gnatcatcher will be limited to a maximum of 1 acre. Temporary impacts from all the projects covered under this programmatic consultation will also be limited to a maximum of 20 acres of gnatcatcher occupied habitat and no permanent loss of habitat is expected. Further, impacts will be limited to 10 gnatcatcher territories11. Thus, impacts should be small in scale, spread out over the range of the species, and intermittent over the life of the project activities and the proposed action is not anticipated to appreciably reduce the numbers, distribution or reproduction of the species. Critical Habitat Effects could occur to PBFs 1 (i.e., sage scrub) and 2 (i.e., non-sage scrub habitat associated with sage scrub, including chaparral, grassland, and riparian habitat) of gnatcatcher critical habitat via removal during construction and maintenance activities. However, temporary impacts from all will be limited to a maximum of one acre of designated critical habitat per project and twenty acres of gnatcatcher designated critical habitat overall and no permanent loss of habitat is expected. Thus, impacts should be small in scale, spread out over the range of the species, and intermittent over the life of the project and impact a small proportion of the approximately 197,303 acres of designated critical habitat for this species. Therefore, no appreciable reduction in the ability of the critical habitat to provide for the survival and recovery of this species is expected. Impact on Recovery The proposed project does not conflict with the recovery actions or goals described in the 5-year review because permanent loss of habitat is not expected and temporary impacts should be small in scale, spread out over the range of the species, and intermittent over the life of the project activities. Further, the potential for impacts from the proposed activities are effectively minimized due to the proposed conservation measures. Finally, the number of gnatcatchers that may be affected is a small proportion of the total and regional populations. Thus, the proposed action will not significantly impact the ability of gnatcatcher to recover. CUMULATIVE EFFECTS Cumulative effects include the effects of future State, tribal, local, or private actions that are reasonably certain to occur in the action area considered in this biological opinion. Future Federal actions that are unrelated to the proposed action are not considered in this section because they require separate consultation pursuant to section 7 of the Act. We are unaware of 11 Whether the level of impact to habitat in a given territory results in adverse effects will be determined on a case - by-case basis as specific projects are identified and submitted for project-level consultation. 250 FEMA (FWS-CFWO-16B0293-18F1358) 44 any non-Federal actions affecting these species that are reasonably certain to occur in the action area considered by this opinion. CONCLUSION After reviewing the current status of the species, environmental baseline for the action area, effects of the proposed action, and the cumulative effects, it is our biological opinion that the proposed action is not likely to jeopardize the continued existence of Quino, arroyo toad, vireo, sucker, and gnatcatcher and is not likely to result in the destruction or adverse modification of their designated critical habitats. Our conclusions are based on the following reasons: 1. FEMA proposes measures that should effectively minimize the impacts of project activities on these species and their designated critical habitats. 2. The proposed action affects a small proportion of the populations of these species across their range and of the designated critical habitats. Also, impacts to habitat will be temporary, small in scale, and intermittent over the duration of the project. INCIDENTAL TAKE STATEMENT Section 9 of the Act, and Federal regulation pursuant to section 4(d) of the Act, prohibit the take of endangered and threatened species, respectively, without special exemption. Take is defined as to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect, or to attempt to engage in any such conduct. Harm is further defined by the Service to include significant habitat modification or degradation that results in death or injury to listed species by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering. Harass is defined as an intentional or negligent act or omission that creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering. Incidental take is defined as take that is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. Under the terms of section 7(b)(4) and section 7(o)(2), taking that is incidental to the agency action is not considered to be prohibited taking under the Act provided that such taking is in compliance with the terms and conditions of this incidental take statement. The measures described below are non-discretionary, and must be undertaken by FEMA or made binding conditions of any grant issued, as appropriate, for the exemption in section 7(o)(2) to apply. FEMA has a continuing duty to regulate the activity covered by this incidental take statement. If FEMA fails to assume and implement the terms and conditions, the protective coverage of section 7(o)(2) may lapse. To monitor the impact of incidental take, FEMA or the project subapplicant must report the progress of the action and its impact on the species to the Service as specified in the incidental take statement [50 CFR § 402.14(i)(3)]. AMOUNT AND EXTENT OF TAKE Incidental take will be identified and exempted as individual projects are identified. This will be documented as the individual projects are submitted for consultation in accordance with this 251 FEMA (FWS-CFWO-16B0293-18F1358) 45 programmatic biological opinion. However, the overall amount of incidental take anticipated and exempted for each federally listed species addressed by this consultation is provided below. Take of the Quino is anticipated and exempted as follows: Harm, death, or injury to individuals within 2 acres of occupied habitat for a given project and 50 acres overall. Take of the arroyo toad is anticipated and exempted as follows: Harm, death, capture or injury to individuals within 1 acre of occupied habitat for a given project and 10 acres overall. Take of the vireo is anticipated and exempted as follows: Harm, death, or injury to individuals within on1 acre of occupied habitat for a given project, 20 acres overall, and 10 territories. Take of the sucker is anticipated and exempted as follows: Harm, death, capture, or injury to individuals within 0.1 mile of occupied habitat for a given project and 0.5 mile overall. Take of the gnatcatcher is anticipated and exempted as follows: Harm, death, or injury to individuals within 1 acre of habitat for a given project, 20 acres overall, and 10 territories. EFFECT OF TAKE In the accompanying biological opinion, we determined that this level of anticipated take is not likely to result in jeopardy to Quino, arroyo toad, vireo, sucker, or gnatcatcher. REASONABLE AND PRUDENT MEASURES The following reasonable and prudent measures are necessary and appropriate to minimize, monitor, and report the effects of incidental take. The reasonable and prudent measures outlined below are nondiscretionary. Failure to comply may cause the protective coverage of section 7(o)(2) to lapse. 1. FEMA or their subapplicants will provide reports regarding the impacts to federally listed species. 2. FEMA or their subapplicants will ensure that impacts to arroyo toads and Santa Ana sucker are minimized during capture and relocation. 252 FEMA (FWS-CFWO-16B0293-18F1358) 46 TERMS AND CONDITIONS To be exempt from the prohibitions of section 9 of the Act, the FEMA must comply with terms and conditions, which implement the reasonable and prudent measures described above and outline reporting and monitoring requirements. Terms and conditions are non-discretionary. To implement the reasonable and prudent measure 1 above, FEMA will adhere to the following terms and conditions: 1.1. FEMA will prepare and provide to the CFWO an annual report by March 15 summarizing all projects completed during the previous calendar year on implementation of this biological opinion. FEMA will require the subapplicants to provide a project report to the Service and FEMA with the following project- specific details on their respective projects within 45 days of project construction completion: a. The number of Quino, arroyo toads, vireos, sucker and gnatcatchers found during a subapplicant’s project, the date observed, their status when observed, and a map and GIS coordinates indicating their location when observed. b. The total amount of occupied habitat disturbed and a description of restoration efforts for that occupied habitat. c. Any observations of impacts to Quino, arroyo toad, vireo, sucker and gnatcatcher and a description of the nature of the impacts. 1.2 Prior to project construction, FEMA will require their subapplicants to submit to the CFWO Geographic Information System (GIS) shapefiles in UTM, Zone 11N (meters), NAD 83 coordinate system that show the following: anticipated permanent impacts, temporary impacts, habitat restoration sites, and habitat conservation sites. Please note that these polygons may overlap. For example, one location could be temporarily impacted and subsequently restored and conserved. Include the following metadata for each shapefile: summary/description of the data, attribute definitions, coordinate system/projection information or any other pertinent information. If there are any changes to the boundaries anticipated impacts, restoration, or conservation sites, such changes must be addressed consistent with the Reinitiation Notice below. In addition updated GIS shapefiles will be submitted to the CFWO. To implement reasonable and prudent measure 2 above, FEMA or their subapplicants will adhere to the following term and condition: 2.1 At least 2 weeks prior to project activities, FEMA will require their subapplicants to submit the names and credentials of all individuals who are expected to handle arroyo toads or Santa Ana sucker to the CFWO for review and approval. 253 FEMA (FWS-CFWO-16B0293-18F1358) 47 CONSERVATION RECOMMENDATIONS Section 7(a)(1) of the Act directs Federal agencies to use their authorities to further the purposes of the Act by carrying out conservation programs for the benefit of endangered and threatened species. Conservation recommendations are discretionary agency activities to minimize or avoid adverse effects of a proposed action on listed species or critical habitat, to help implement recovery plans, or to develop information. We have no conservation recommendations for this project. REINITIATION NOTICE This concludes formal consultation on the proposed action. As provided in 50 CFR § 402.16, reinitiation of formal consultation is required where discretionary Federal involvement or control over the action has been retained (or is authorized by law) and if (1) the amount or extent of incidental take is exceeded; (2) new information reveals effects of the agency action that may affect listed species or critical habitat in a manner or to an extent not considered in this opinion; (3) the agency action is subsequently modified in a manner that causes an effect to the listed species or critical habitat not considered in this opinion; or (4) a new species is listed or critical habitat designated that may be affected by the action. If you have any questions regarding this document, please contact Jesse Bennett of this office at jesse_bennett@fws.gov; or 760-431-9440 extension 305. Sincerely, Scott A. Sobiech Acting Field Supervisor Appendices 254 FEMA (FWS-CFWO-16B0293-18F1358) 48 LITERATURE CITED Atwood, J.L. 1980. The United States distribution of the California black-tailed gnatcatcher. Western Birds 11: 65–78. Atwood, J., and D. Bontrager. 2001. California Gnatcatcher (Polioptila calicornica). In: A. Poole and F. Gill, editors. The Birds of North America, No. 574. The Birds of North America, Inc., Philadelphia, PA. 32 pp. Boland, J. 2016. The impact of an invasive ambrosia beetle on the riparian habitats of the Tijuana River Valley, California. PeerJ 4:e2141; DOI 10.7717/peerj.2141 California Department of Fish and Wildlife (CDFW). 2008. California Aquatic Invasive Species Management Plan. State of California; Resources Agency; Department of Fish and Game. January. Gunn, W. and J. Livingston (Eds.). 1974. Disturbance to birds by gas compressor noise simulators, aircraft and human activity in the Mackenzie Valley and North Slope, 1972. Arctic Gas Biol. Rep. Ser. 14. 280 pp. Eskalen, A., R. Stouthamer, S. Lynch, P. Rugman -Jones, M. Twizeyimana, A. Gonzale z, and T. Thibault. 2013. Host range of Fusarium dieback and its ambrosia beetle (Coleoptera: Scolytinae) vector in Southern California. Plant Disease 97(7): 938-951. Lessard, J. L. and D. B. Hayes. 2003. Effects of elevated water temperature on fish and macroinvertebrate communities below small dams. River Research and Applications 19:721-732. Lynch, S. C., M. Twizeyimana, J. Mayorquin, D. Wang, F. Na, M. Kayim, M. Kasson, P. Thu, C. Bateman, P. Rugman-Jones, J. Hucr, R. Stouthamer, A. Eskalen. 2016. Identification, pathogenicity, and abundance of Paracremonium pembeum sp. nov. and Graphium euwallaceae sp. nov.- two newly discovered mycangial associates of the polyphagous shot hole borer (Euwallacea sp.) in California. Mycologia 108(2): 313-329 Merriam, K. E., J. E. Keeley, and J. L. Beyers. 2006. Fuel breaks affect nonnative species abundance in Californian plant communities. Ecological Applications. Vol. 16:515-527. NMFS (National Marine Fisheries Service). 1997. Fish Screening Criteria for Anadromous Salmonids. January. 12 pp. NOAA Fisheries. 2009. The use of treated wood products in aquatic environments: guidelines to west coast NOAA fisheries staff for Endangered Species Act and Essential Fish Habitat consultations in the Alaska, Northwest, and Southwest regions. October 12. Rabeni, C. F. and M. A. Smale. 1995. Effects of siltation on stream fishes and the potential mitigating role of the buffering riparian zone. Hydrobiologia. 303:211-219. 255 FEMA (FWS-CFWO-16B0293-18F1358) 49 Rouse, J. D., C. A. Bishop, and J. Struger. 1999. Nitrogen pollution: An assessment of its threat to amphibian survival. Environmental Health Perspectives. Vol. 107, No. 10, October. Scherzinger, W. 1979. On the relations of predators of Hazel Grouse (Bonasa bonasa). Vogelwelt 100 (6): 325-217. English translation of abstract. Shen, J. 1983. A behavioral study of vibrational sensitivity in the pigeon (Columba livia). Journ. Comp. Physiology 152:251-255. Service [U.S. Fish and Wildlife Service]. 1993. Determination of threatened status for the coastal California gnatcatcher. Federal Register 58:16742-16757. Service [U.S. Fish and Wildlife Service]. 1994a. Endangered and threatened wildlife and plants; Determination of endangered status for the arroyo southwestern toad. Federal Register 59:64859-64867. Service [U.S. Fish and Wildlife Service]. 1994b. Designation of critical habitat for the least Bell’s vireo. Federal Register 59:4845-4867. Service [U.S. Fish and Wildlife Service]. 1997. Endangered and threatened wildlife and plants; determination of endangered status for the Quino checkerspot butterfly and Laguna Mountains skipper. Federal Register 62:2313-2322. Service [U.S. Fish and Wildlife Service]. 1998. Draft recovery plan for the least Bell’s vireo (Vireo bellii pusillus). U.S. Fish and Wildlife Service, Portland, Oregon. 139 pp. Service [U.S. Fish and Wildlife Service]. 1999. Arroyo southwestern toad (Bufo microscaphus californicus) recovery plan. U.S. Fish and Wildlife Service, Portland, Oregon. vi + 119 pp. Service [U.S. Fish and Wildlife Service]. 2000. Endangered and threatened wildlife and plants; threatened status for the Santa Ana sucker. Federal Register 65:19686-19698. Service [U.S. Fish and Wildlife Service]. 2003. Recovery plan for the Quino checkerspot butterfly (Euphydryas editha quino). Portland, Oregon. x + 179 pp. Service [U.S. Fish and Wildlife Service]. 2005. Final rule to designate critical habitat for the Santa Ana sucker (Catostomus santaanae). Federal Register 70:426-458. Service [U.S. Fish and Wildlife Service]. 2006. Least Bell’s vireo (Vireo bellii pusillus) 5-year review: Summary and evaluation. 26 pp. Service [U.S. Fish and Wildlife Service]. 2007. Revised designation of critical habitat for the coastal California gnatcatcher. Federal Register 72:72010-72213. 256 FEMA (FWS-CFWO-16B0293-18F1358) 50 Service [U.S. Fish and Wildlife Service]. 2009a. 5-Year review for the Quino checkerspot butterfly (Euphydryas editha quino). Carlsbad Fish and Wildlife Office. 55 pp. Service [U.S. Fish and Wildlife Service]. 2009b. Revised designation of critical habitat for the Quino checkerspot butterfly (Euphydryas editha quino). Federal Register 74:28776- 28862. Service [U.S. Fish and Wildlife Service]. 2010a. Reinitiation of formal consultation and revised biological and conference opinion on the construction and long-term operation and maintenance program for the Sunrise Powerlink Project, Imperial and San Diego counties, California. 154 pp.+attachments. Service [U.S. Fish and Wildlife Service]. 2010b. Revised critical habitat for Santa Ana sucker; final rule. Federal Register 75:77962-78027. Service [U.S. Fish and Wildlife Service]. 2010c. Coastal California gnatcatcher (Polioptila californica californica) 5-year review: summary and evaluation. 51 pp. Service [U.S. Fish and Wildlife Service]. 2011a. Revised critical habitat for arroyo toad; final rule. Federal Register 76:7246-7467. Service [U.S. Fish and Wildlife Service]. 2011b. Santa Ana sucker (Catostomus santaanae) 5- year review: summary and evaluation. 74 pp. Service [U.S. Fish and Wildlife Service]. 2012. Recovery outline for sucker (Catostomus santaanae). 38 pp. Service [U.S. Fish and Wildlife Service]. 2015. Withdrawal of proposed rule to reclassify the arroyo toad as threatened. Federal Register 80:79805-79816. Service [U.S. Fish and Wildlife Service]. 2017. Recovery Plan for the Santa Ana sucker. U.S. Fish and Wildlife Service, Pacific Southwest Region, Sacramento, California. xii+92 pp. Sharifi, M.R., A.C. Gibson, and P.W. Rundel. 1997. Surface dust impacts on gas exchange in Mojave Desert shrubs. Journal of Applied Ecology. 34: 837-846. Stephenson, J.R. and G.M. Calcarone. 1999. Southern California mountain and foothills assessment: habitat and species conservation issues. Gen. Tech. Rep. PSW-GTR-172. USDA Forest Service, Pacific Southwest Research Station, Albany, California. 402 pp. Swift, C.C., T.R. Haglund, M. Ruiz, and R.N. Fisher. 1993. The status and distribution of the freshwater fishes of southern California. Southern California Acad. Sci. 92(3):101-167. Winchell, C. S., and P. F. Doherty Jr. 2008. Using California gnatcatcher to test underlying models in habitat conservation plans. 72(6): 1322-1327. 257 FEMA (FWS-CFWO-16B0293-18F1358) 51 Appendix A Concurrence with Not Likely to Adversely Affect Determinations Southwestern Willow Flycatcher and Designated Critical Habitat Flycatcher could be affected by removal of habitat and direct impacts to nests, nestlings, and eggs. They could also be affected by noise that disrupts breeding, feeding, and predator avoidance. In addition, the removal of flycatcher designated critical habitat could impact PBF 1 (i.e., riparian vegetation). However, no flycatcher occupied or designated critical habitat will be impacted, and appropriate buffers will be used to effectively minimize the potential for impacts due to noise. Thus, the potential for adverse effects is discountable. California Least Tern and Light-Footed Ridgway’s Rail California least tern and light-footed Ridgway’s rail could be affected by removal of habitat and direct impacts to nests, nestlings, and eggs. They could also be affected by noise that disrupts breeding, feeding, and predator avoidance. However, project activities in habitat for t hese species will occur outside the season of use for this species, and ground disturbance will be restricted to hand tools. Thus, impacts will not occur to nest, nestlings, and eggs, and impacts to habitat will have an insignificant effect on California least tern and light-footed Ridgway’s rail. Further, project activities during the season of use will occur 800 feet away from California least tern habitat and 500 feet away from light-footed Ridgway’s rail habitat, and only hand tools will be used. Thus, the potential for impacts due to noise and disturbance is discountable. Tidewater Goby Tidewater goby and its designated critical habitat could be affected by removal of habitat, changes to hydrology, impacts to water quality, and direct impacts to individuals. However, impacts to individuals and occupied habitat within the CFWO’s jurisdiction will be avoided, best management practices will be used to minimize the potential for impacts due to runoff, and all impacts will be temporary and subject to restoration. Thus, impacts will be insignificant. San Diego and Riverside Fairy Shrimp San Diego and Riverside fairy shrimp and designated critical habitats could be affected by removal of habitat and direct impacts to individuals. They could also be affected by contaminated runoff that results in impacts to water quality. However, project activities in habitat will occur outside pool basins, best management practices will be used to minimize the potential for impacts due to runoff, and all impacts to areas surrounding pool habitats will be temporary and subject to restoration. Thus, the potential for impacts is discountable. Western Snowy Plover Western snowy plover could be affected by removal of habitat and direct impacts to nests, nestlings, and eggs. They could also be affected by noise that disrupts breeding, feeding, and predator avoidance. However, project activities in habitat for these species will be restricted to hand tools, and 258 FEMA (FWS-CFWO-16B0293-18F1358) 52 temporary impacts will be restored. Thus, impacts due to habitat loss wi ll be insignificant. Also, a biological monitor will be used to ensure that impacts to breeding western snowy plovers are avoided, as appropriate. Human activities and use of hand tools during the non-breeding season are may result in minor disturbance or displacement of overwintering birds, but these activities are not anticipated to substantially impact western snowy plover survival or reproduction. Thus, the potential for impacts to nests, nestlings, and eggs or due to noise and disturbance is discountable. Appendix B Southwestern Willow Flycatcher SWWF 1 Habitat Assessment: A habitat assessment will be conducted by a biologist to determine whether suitable habitat (including foraging, nesting, and dispersal) for the flycatcher occurs in the action area. If suitable habitat for this species is identified in the action area and the proposed project may affect suitable habitat that is not known to be occupied by the flycatcher, the CFWO will be contacted regarding the need for surveys according to Service protocol and those surveys will be conducted, as appropriate. Otherwise, if the CFWO agrees based on other biological data or reasoning, the species will be determined present in areas with suitable habitat. SWWF 2 Habitat Buffer: If project activities are conducted during the breeding season (i.e., May 1-September 1), a 500-foot disturbance-free buffer will be established and demarcated by fencing or flagging around occupied habitat. This buffer may be adjusted provided noise levels do not exceed 60 dBA at the edge of the nest site. If the noise meets or exceeds the 60 dBA threshold, or if the biologist determines that the construction activities are disturbing nesting activities, the biologist will have the authority to halt the construction and will devise methods to reduce the noise and/or disturbance in the vicinity. SWWF 3 No Permanent or Temporary Loss of Habitat: No permanent or temporary loss of flycatcher occupied or designated critical habitat will occur (within or outside of the breeding season). California Least Tern Conservation Measures CLT 1 Seasonal Avoidance and Habitat Buffer: To avoid the nesting season of the California least tern, project activity in occupied habitat will be limited to the time period from September 30-March 31. If project activities occur during the nesting season, they will occur at least 800 feet away from California least tern occupied habitat, and noise within occupied habitat will be monitored to ensure that it does not exceed 60 dBA. CLT 2 Biological Monitor: A Service-approved biologist will monitor all construction activities within occupied habitat to ensure that no harm, death, or injury of the species or destruction of occupied habitat occurs. The Service-approved biologist 259 FEMA (FWS-CFWO-16B0293-18F1358) 53 will have stop work authority if adverse effects of nesting California least terns or light-footed Ridgway’s rails are observed or are likely to occur. CLT 3 Use of Handheld Tools: Non-breeding season project activity in occupied habitat will be limited to the use of handheld tools, including handheld motorized implements such as chain saws and power augers. Tools will be washed prior to use in these habitats to reduce the potential for spread of nonnative plant species and their seeds. No heavy equipment will be allowed within suitable nesting habitats. CLT 4 Habitat Protection: No soil stabilization materials or off-site materials (e.g., decomposed granite, soil, rocks, etc.) will be added to the surface within occupied habitat. No excavation or grading will occur within occupied habitat either. CLT 5 Flagging: When necessary to minimize the area affected by the project, work site boundaries will be marked with flagging or other visible materials, which will be removed at the conclusion of the project. CLT 6 Avoid Creation of Predator Perches: Workers will avoid temporary or permanent placement of structures (e.g., posts, railings, tall equipment, or fence lines) that could provide elevated perches for predatory birds near or within occupied habitat. CLT 7 Access Restrictions: Access to work sites in occupied habitat will be by foot travel only. Motorized vehicles, including all-terrain vehicles, will not be used in occupied habitat. CLT 8 Restoration of Disturbed Areas: At the conclusion of the project, areas temporarily affected by project activity will be restored to their pre-project condition (for example, footpaths will be raked to their original ground contour and native vegetation will be reestablished, if necessary). CLT 9 Waste Management: Trash, food, food containers, and food waste will be secured at all times by individual workers, or placed in animal-proof trash containers placed at the work site. The contents of trash containers will be transferred from the work site at the end of each day. CLT 10 Guidance on Handheld Equipment: If handheld motorized tools are used, operators will employ best management practices to avoid and minimize soil and water contamination from fuel and lubricants. Measures include: a) use spill-resistant fuel and lubricant containers; b) use a portable containment pad for re-fueling in the field; c) immediately report petroleum spills to the landowner, or land management agency, and notify appropriate local authorities for advice and action on containment and cleanup of spills; and d) clearly mark the location and/or boundaries of the spill site to enable rapid remedial action. 260 FEMA (FWS-CFWO-16B0293-18F1358) 54 Light-Footed Ridgway’s Rail Conservation Measures LFRR 1 Habitat Assessment: A habitat assessment will be conducted by a biologist to determine whether suitable habitat (including foraging, nesting, and dispersal habitat) for the light-footed Ridgway’s rail occurs in the action area. If suitable habitat for this species is identified in the action area and the proposed project may affect suitable habitat that is not known to be occupied by the light-footed Ridgway’s rail, the CFWO will be contacted regarding the need for additional surveys, and those surveys will be conducted, as appropriate. Otherwise, if the CFWO agrees based on other biological data or reasoning that the area is likely occupied, measures 1 through 12 will be implemented in areas with suitable habitat. LFRR 2 Seasonal Avoidance: To avoid the nesting season of the light-footed Ridgway’s rail, project activity in occupied habitat will be allowed from September 16-March 14. If project activities occur during the nesting season, they will occur at least 500 feet away from light-footed Ridgway’s rail occupied habitat, and noise within occupied habitat will be monitored to ensure that it does not exceed 60 dBA. LFRR 3 Biological Monitor: A Service-approved biologist will monitor all construction activities within occupied habitat to ensure that no harm, death, or injury of the species or destruction of occupied habitat occurs. The Service-approved biologist will have stop work authority if adverse effects of nesting light-footed Ridgway’s rails are observed or are likely to occur. LFRR 4 Limits on Mechanized Equipment: Non-breeding season project activity in occupied habitat will be limited to the use of handheld tools, including handheld motorized implements such as chain saws and power augers. Tools will be washed prior to use in these habitats to reduce the potential for spread of nonnative plant species and their seeds. No heavy equipment will be allowed within suitable nesting habitats. LFRR 5 Soil/Surface Protection: No soil stabilization materials or off-site materials (e.g., decomposed granite, soil, rocks, etc.) will be added to the surface within occupied habitat. No excavation or grading will occur within occupied habitat either. LFRR 6 Guidance on Handheld Equipment: If handheld motorized tools are used, operators will employ best management practices to avoid and minimize soil and water contamination from fuel and lubricants. Measures include: a) use spill-resistant fuel and lubricant containers; b) use a portable containment pad for re-fueling in the field; c) immediately report petroleum spills to the landowner, or land management agency, and notify appropriate local authorities for advice and action on containment and cleanup of spills; and d) clearly mark the location and/or boundaries of the spill site to enable rapid remedial action. 261 FEMA (FWS-CFWO-16B0293-18F1358) 55 LFRR 7 Site Flagging: When necessary to minimize the area affected by the project, work site boundaries will be marked with flagging or other visible materials, which will be removed at the conclusion of the project. LFRR 8 Avoid Creation of Predator Perches: Workers will avoid temporary or permanent placement of structures (e.g., posts, railings, tall equipment, or fence lines) that could provide elevated perches for predatory birds near or within occupied habitat. LFRR 9 Site Restriction: Access to work sites in occupied habitat will be by foot travel only. Motorized vehicles, including all-terrain vehicles, will not be used in occupied habitat. LFRR 10 Restoration of Disturbed Areas: At the conclusion of the project, areas temporarily affected by project activity will be restored to their pre-project condition (for example, footpaths will be raked to their original ground contour and native vegetation will be reestablished, if necessary). LFRR 11 Waste Management: Trash, food, food containers, and food waste will be secured at all times by individual workers, or placed in animal-proof trash containers that are located at the work site. The contents of trash containers will be transferred from the work site at the end of each day. LFRR 12 Hydrology and Topography Protection: Project activities will avoid creation of berms and dykes, steepening of channel slopes, placement of rock slope protection, and other actions that could result in alteration of hydrology, changes to water surface elevation levels, increased flooding, changes to flow velocities, and increased scour within light-footed Ridgway’s rail occupied habitat. Tidewater Goby TIGO 1 Installation of In-water Nets: Prior to initiation of dewatering or sediment removal work, a Service-approved biologist will install 1/8 inch block nets outside the impact areas and across the stream a minimum of 20 feet above and below the locations proposed for excavation. If widely separated sites are involved, more than one set of block nets will be placed to protect the work area. The nets will be installed on the first day of work and monitored thereafter for the duration of the work. TIGO 2 Environmental Awareness Training: Prior to initiation of dewatering or sediment removal work, hold an environmental awareness training to inform maintenance and management personnel about tidewater gobies, including tidewater goby protected status, proximity to the project site, avoidance/minimization measures to be implemented during the particular project, and the implications of violating ESA and FEMA funding conditions. 262 FEMA (FWS-CFWO-16B0293-18F1358) 56 TIGO 3 Capture and Relocation: Once the block nets are secured, a Service-approved biologist(s) will remove all tidewater gobies found between the block nets using a 1/8 inch seine and dip nets, and relocate tidewater gobies to suitable habitat downstream of the Action Area. If excavation of a given extent of a basin cannot be completed in one day, a new set or successive sets of block nets will be deployed each day, and subsequent surveys and capture/relocation performed accordingly. Fish released from one day’s work will not be released into areas projected to be excavated on successive days. TIGO 4 Flagging: Clearly flag the limits of construction areas to avoid or minimize impacts to adjacent riparian and upland habitat. Flagging will be no more than 50 feet apart and will be clearly visible to construction workers on the ground and to operators on heavy equipment. TIGO 5 Erosion Control: Implement erosion and sedimentation control measures (e.g., silt fences, straw bales or wattles) in all areas where disturbed substrate may potentially wash into waters via rainfall or runoff, particularly around stockpiled material and at the downstream end of each project reach. Such measures will remain in place and be inspected periodically until the project is complete and exposed soils are stabilized. Diversion structures, sediment traps/basins and associated equipment (e.g., pumps, lines) will be maintained in optimal working condition for the entire duration of the preparation and construction periods. TIGO 6 Biological Monitor: A Service-approved biological monitor will remain onsite and search for tidewater gobies and assess turbidity levels within the work areas during all dewatering activities, and will capture and relocate tidewater gobies to suitable habitat as necessary. TIGO 7 Reporting: Provide a written summary of work performed (including biological survey and monitoring results), best management practices implemented (i.e., use of biological monitor, flagging of work areas, erosion and sedimentation controls) and supporting photographs of each stage. Furthermore, the documentation describing listed species surveys and re‐location efforts (if appropriate) will include name of biologist(s), location and description of area surveyed, time and date of survey, all survey methods used, a list and tally of all sensitive animal species observed during the survey, a description of the instructions/recommendations given to the applicant during the project, and a detailed discussion of capture and relocation efforts (if appropriate). TIGO 8 Hydrology and Topography Protection: Project activities will avoid creation of berms and dykes, steepening of channel slopes, placement of rock slope protection, and other actions that could result in alteration of hydrology, changes to water surface elevation levels, increased flooding, changes to flow velocities, and increased scour within tidewater goby designated critical habitat. However, the in- kind replacement of existing or damaged rock slope protection may occur. 263 FEMA (FWS-CFWO-16B0293-18F1358) 57 TIGO 9 Limits on Habitat Disturbance: Project activities will not result in permanent loss of tidewater goby designated critical habitat unless the impacts to habitat are determined to be insignificant via project-level consultation (i.e., small permanent impacts that will have a negligible effect on habitat quality for tidewater goby). TIGO 10 Limits on Habitat Disturbance: Project activities will not adversely affect tidewater gobies or their occupied habitat on or near Marine Corps Base Camp Pendleton. TIGO 11 Reinitiation with New Information: If tidewater gobies are located within CFWO’s jurisdiction outside Marine Corps Base Camp Pendleton, this consultation will be reinitiated if project activities may affect tidewater gobies at these locations. San Diego and Riverside Fairy Shrimp Conservation Measures VPBR 1 Habitat Assessment: For habitat not known to be occupied by the San Diego fairy shrimp and/or Riverside fairy shrimp: a. A habitat assessment will be conducted by a biologist to determine whether suitable habitat for the San Diego fairy shrimp and Riverside fairy shrimp occurs in the action area. If suitable habitat for these species is identified in the action area and the proposed project may affect suitable habitat that is not known to be occupied by the San Diego fairy shrimp and Riverside fairy shrimp, the CFWO will be contacted regarding the need for surveys according to the Service protocol, and those surveys will be conducted, as appropriate. Otherwise, if the CFWO agrees based on other biological data or reasoning that the area is likely occupied, measures 1 through 10 will be implemented in areas with suitable habitat. VPBR 2 Biological Monitor: For occupied and designated critical habitat for San Diego fairy shrimp and/or Riverside fairy shrimp (fairy shrimp habitat): a. A Service-approved biologist will monitor all construction activities within 150 feet of fairy shrimp habitat to ensure that listed fairy shrimp are not harmed, injured, or killed and fairy shrimp habitat is not impacted or destroyed. VPBR 3 Seasonal Avoidance: Construction within 150 feet of fairy shrimp habitat will be performed from June 1 to October 15 and under dry conditions to the maximum extent feasible. VPBR 4 Fencing: If any construction activities must occur during October 15 -June 1, exclusion fencing and erosion control materials will be used to reduce sedimentation of adjacent vernal pools and other seasonal wetlands as determined by a Service -approved biologist. All fiber rolls and hay bales used for erosion control will be certifie d as free of noxious weed seed. VPBR 5 Buffers: Activities within 150 feet of fairy shrimp habitat will be avoided to the maximum extent possible. A Service-approved biologist will flag or monitor all work 264 FEMA (FWS-CFWO-16B0293-18F1358) 58 activities from October 15 to June 1 within 150 feet of fairy shrimp habitat. The following buffers will be used during this timeframe: a. Hand-held herbicide application will not occur within 25 feet of habitat; b. Broadcast or power spray herbicide application will not occur within 150 feet of habitat; c. Manual clearing of vegetation will not occur within pool basins; d. Mechanical clearing of vegetation and ground-disturbing activities will not occur within 100 feet of habitat; and e. A buffer of at least 300 feet from habitat will be established for the staging areas of all equipment for storage, fueling, and maintenance with hazardous material absorbent pads available in the event of a spill; and mixing of pesticides, herbicides, or other potentially toxic chemicals. VPBR 6 Vehicle Inspections: Vehicles will be inspected daily for fluid leaks before leaving a staging area. VPBR 7 Vernal Pool Habitat Protection: The following best management practices will be implemented within or near fairy shrimp habitat: a. Any vernal pool, vernal pool grassland, or seasonal wetland will be protected from siltation and contaminant runoff by use of erosion control. b. Erosion-control materials will be of a tightly woven natural fiber netting or similar material that will not entrap other wildlife species (e.g., coconut coir matting). No micro-filament netting will be used. c. Erosion-control measures will be placed between the outer edge of the buffer and the activity area. All fiber rolls and hay bales used for erosion control will be certified as free of noxious weed seed. d. The subapplicant will implement dust control measures necessary to prevent the transport of soil from exposed surfaces to vernal pool, swale, and rock pool habitat. Sprinkling with water will not be done in excess to minimize the potential for non-storm water discharge. e. To minimize the introduction of nonnative plant species, construction vehicles will be cleaned prior to any work within 150 feet of fairy shrimp habitat. VPBR 8 Restoration Plan: Restoration of temporary impacts will occur in accordance with a restoration plan that is reviewed and approved by the CFWO prior to implementation of the proposed project. Specifically, when restoring areas to pre -project condition, native plants will be used to the maximum extent possible. VPBR 9 No Permanent Loss of Habitat: No permanent impacts to fairy shrimp habitat will occur. Actions that result in permanent alteration of pool hydrology (e.g., construction 265 FEMA (FWS-CFWO-16B0293-18F1358) 59 of culverts, v-ditches, berms, roads, pipes, etc., that will divert flows from pools basins) will be avoided and are not addressed by this programmatic consultation. VPBR 10 Habitat Disturbance Limits: No more than 5 percent of habitat within a given complex or unit of designated critical habitat or overall under this consultation will be temporarily impacted by the proposed project. Direct impacts will occur outside of pool basins. Western Snowy Plover The following avoidance and minimization measures apply to Action Areas within suitable snowy plover nesting habitat and designated critical habitat regardless of whether snowy plovers have been detected during Service-approved protocol surveys. WSP 1 Seasonal Avoidance: Project construction activities in suitable nesting habitat will occur during the species non-breeding season: the period beginning October 1 and continuing through February 28 of the following year or through February 29 in a leap year. WSP 2 Use of Handheld Tools Only: Project construction activities in suitable nesting habitat will be limited to the use of handheld tools, including handheld motorized implements such as chain saws and power augers. No heavy equipment will be allowed within suitable nesting habitat. WSP 3 Guidelines for Handheld Tools: If handheld motorized implements are used, operators will employ best management practices to avoid and minimize soil and water contamination from fuel and lubricants. Measures include: a. Use spill-resistant fuel and lubricant containers; b. Consider the use of a portable containment pad for re-fueling in the field; c. Immediately report petroleum spills to the landowner, or land management agency, and notify appropriate local authorities for advice and action on containment and cleanup of spills; and d. Clearly mark the location and/or boundaries of the spill site to enable rapid remedial action. WSP 4 Biological Monitor: If project construction activities occur in adjacent to, but not within suitable nesting habitat, then project activities will be conducted during the species non-breeding season, if possible. If non-breeding season construction is not possible, then the Subapplicant will employ a Service-approved biologist to conduct weekly western snowy plover surveys. If western snowy plovers are observed, the Service-approved biologist will notify the Service within 1 day of the observation and will monitor all construction activities conducted adjacent to western snowy plovers suitable nesting habitat. The qualified biologist will have the right and responsibility to stop work if adverse effects of nesting western snowy plovers are observed. 266 FEMA (FWS-CFWO-16B0293-18F1358) 60 WSP 5 Flagging: When necessary to minimize the area affected by the project, the Subapplicant or their contractors will mark the work site boundaries with flagging or other visible materials, and remove those markers at the conclusion of the project. WSP 6 Avoid Placement of Predator Perches: Workers will avoid temporary or permanent placement of structures (e.g., posts, railings, tall equipment, or fence lines) that could provide elevated perches for predatory birds. WSP 7 Access Restrictions: Access to work sites will be by foot travel only. Motorized vehicles, including all-terrain vehicles, are not permitted on work sites located within suitable nesting habitat. WSP 8 Site Restrictions: Vehicles used for transport of personnel will be restricted to existing parking lots or roadside parking areas. WSP 9 Restore Contours of Temporarily Disturbed Areas: At the conclusion of the project, areas temporarily impacted by project activity will be restored to their pre-project condition (for example, footpaths are to be raked to their original ground contour and cut vegetation is to be removed or piled for future disposal). WSP 10 Waste Management: Trash, food, food containers, and food waste will be secured at all times by individual workers, or placed in animal-proof trash containers placed at the work site. The contents of trash containers will be transferred from the work site at the end of each day. WSP 11 Prohibition of Pets Onsite: Pets will be prohibited from all work sites. 267 Agenda Item No.: 4.G Mtg. Date: 11/08/2021 TO:HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM:ELAINE JENG, CITY MANAGER THRU:ELAINE JENG P.E., CITY MANAGER SUBJECT:APPROVE THE PROPOSAL FROM LANCE, SOLL & LUNGHARD, LLP (LSL) TO PERFORM ANNUAL AUDIT FOR FISCAL YEAR 2020-2021 FOR AN AMOUNT NOT TO EXCEED $17,623 AND DIRECT THE CITY ATTORNEY TO PREPARE AN AMENDED AGREEMENT WITH LSL. DATE:November 08, 2021 BACKGROUND: The City Council engaged the services of Lance, Soll & Lunghard, LLC (LSL) to perform professional auditing services for three years in 2016 with the option of two, one year extensions. LSL completed the audit services for Fiscal Year 2019-2020 and exhausted the extension option from the 2016 agreement. In May 2021, the Finance Committee recommended to the City Council to continue to have LSL provide auditing services for Fiscal Year 2020-2021. The City Council approved the recommendation in June 2021. DISCUSSION: LSL provided a proposal to provide the same services as listed in the 2016 agreement for an amount not to exceed $17,623. This is an increase of $513 from last year's service cost of $17,110. Staff recommends that the City Council approve LSL's proposal to provide auditing services for Fiscal Year 2020-2021 and direct the City Attorney to prepare an amended agreement with LSL. FISCAL IMPACT: The cost of annual professional auditing services is included in the adopted budget for Fiscal year 2021- 2022 in the Finance Department. RECOMMENDATION: Approve as presented. ATTACHMENTS: Rolling Hills 1 year extension FY 2021.pdf Audit LSL fullyExecuted2016-2019.pdf 268 May 12, 2021 City of Rolling Hills Terry Shea 2 Portuguese Bend Road Rolling Hills, CA 90274 Lance, Soll & Lunghard, LLP is pleased to respond to your request for an one year extension. As a leader in the field of governmental accounting and auditing, we appreciate this opportunity given to us to present to continue our services. For the one-year extension, we will continue to provide our services with the standard 3% increase to the existing contract. The services and fees of $17,623 for fiscal year ending June 30, 2021 would be as follows: Perform a financial audit of the City of Rolling Hills in accordance with Generally Accepted Government Auditing Standards. A CAFR will be prepared and word processed by LSL. The CAFR will be in full compliance with all current GASB pronouncements. LSL will render its auditors’ report on the basic financial statements, which will include both Government-Wide Financial Statements and Fund Financial Statements. The audit firm will also apply limited audit procedures to Management’s Discussion and Analysis and required supplementary information. LSL understands that we will prepare the financial section of the City’s CAFR. Price: $15,965 (PY price was $15,500) Perform agreed-upon audit procedures pertaining to the City’s Appropriations Limit Worksheet and render a letter, annually, to the City regarding compliance. Price: $556 (PY price was $540) Prepare the City’s State Controller’s Report annually. Price: $1,102 (PY price was $1,070) Issue a separate “management letter” that includes a report on the City’s internal control over financial reporting in addition to recommendations for improvements in internal control, accounting procedures and other significant observations that are considered to be non-reportable conditions. Price: included with financial audit LSL will be available for occasional consultation throughout the year as a financial resource for the City of Rolling Hills and will be available for additional work as required. 203 N. Brea Blvd., Suite 203 Brea, CA 92821 Phone: 714.672.0022 An Association of Independent Accounting Firms 269 This proposal describes the benefits your organization would receive from Lance, Soll & Lunghard, LLP. We are committed to provide the services presented in our proposal in accordance with the timetable specified in your request for proposal. This proposal is a firm and irrevocable offer for a period no less than 90 calendar days from the date of submittal. For purposes of this proposal, Deborah A. Harper, Partner is authorized to make representations for our firm. I can be reached at the address below, by phone at (714) 672-0022 or by email at Deborah.Harper@lslcpas.com. Deborah. A. Harper, Partner LANCE, SOLL & LUNGHARD, LLP 203 N. Brea Blvd., Suite 203 Brea, CA 92821 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 286 287 288 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 320 321 322 323 324 325 326 Agenda Item No.: 7.A Mtg. Date: 11/08/2021 TO:HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM:ELAINE JENG, CITY MANAGER THRU:ELAINE JENG P.E., CITY MANAGER SUBJECT:REVIEW AND DISCUSS DRAFT CITY ORDINANCE TO COMPLY WITH SENATE BILL (SB) 9, INCREASE DENSITY IN SINGLE FAMILY ZONE. DATE:November 08, 2021 BACKGROUND: Senate Bill (SB) 9 (Atkins) Increase Density in Single-Family Zone was signed into law by Governor Newsom on September 16, 2021. SB 9 effectively puts an end to traditional single-family zoning restrictions statewide. SB 9 will take effective on January 1, 2022. DISCUSSION: At the September 27, 2021 meeting, the City Council directed the City Attorney's office to provide input and advice on SB 9. At the October 11, 2021 City Council meeting, the City Attorney's office gave a presentation on the provisions of SB 9. At the October 25, 2021 City Council meeting, the City Attorney's office provided a draft ordinance to comply with the provisions of SB 9. The City Council delayed the review and discussion of the draft ordinance to the November 8, 2021 City Council meeting. FISCAL IMPACT: The analysis of SB 9 and the preparation of the draft ordinance are a part of the operation budget for Fiscal Year 2021-2022. RECOMMENDATION: Review draft and provide direction to staff. ATTACHMENTS: Senate_Bill_9.PDF Draft_Ordinance_Implementing_SB_9-c1-SUPPLEMENTAL.pdf 327 Senate Bill No. 9 CHAPTER 162 An act to amend Section 66452.6 of, and to add Sections 65852.21 and 66411.7 to, the Government Code, relating to land use. [Approved by Governor September 16, 2021. Filed with Secretary of State September 16, 2021.] legislative counsel’s digest SB 9, Atkins. Housing development: approvals. The Planning and Zoning Law provides for the creation of accessory dwelling units by local ordinance, or, if a local agency has not adopted an ordinance, by ministerial approval, in accordance with specified standards and conditions. This bill, among other things, would require a proposed housing development containing no more than 2 residential units within a single-family residential zone to be considered ministerially, without discretionary review or hearing, if the proposed housing development meets certain requirements, including, but not limited to, that the proposed housing development would not require demolition or alteration of housing that is subject to a recorded covenant, ordinance, or law that restricts rents to levels affordable to persons and families of moderate, low, or very low income, that the proposed housing development does not allow for the demolition of more than 25% of the existing exterior structural walls, except as provided, and that the development is not located within a historic district, is not included on the State Historic Resources Inventory, or is not within a site that is legally designated or listed as a city or county landmark or historic property or district. The bill would set forth what a local agency can and cannot require in approving the construction of 2 residential units, including, but not limited to, authorizing a local agency to impose objective zoning standards, objective subdivision standards, and objective design standards, as defined, unless those standards would have the effect of physically precluding the construction of up to 2 units or physically precluding either of the 2 units from being at least 800 square feet in floor area, prohibiting the imposition of setback requirements under certain circumstances, and setting maximum setback requirements under all other circumstances. The Subdivision Map Act vests the authority to regulate and control the design and improvement of subdivisions in the legislative body of a local agency and sets forth procedures governing the local agency’s processing, approval, conditional approval or disapproval, and filing of tentative, final, and parcel maps, and the modification of those maps. Under the Subdivision Map Act, an approved or conditionally approved tentative map expires 24 94 328372 months after its approval or conditional approval or after any additional period of time as prescribed by local ordinance, not to exceed an additional 12 months, except as provided. This bill, among other things, would require a local agency to ministerially approve a parcel map for an urban lot split that meets certain requirements, including, but not limited to, that the urban lot split would not require the demolition or alteration of housing that is subject to a recorded covenant, ordinance, or law that restricts rents to levels affordable to persons and families of moderate, low, or very low income, that the parcel is located within a single-family residential zone, and that the parcel is not located within a historic district, is not included on the State Historic Resources Inventory, or is not within a site that is legally designated or listed as a city or county landmark or historic property or district. The bill would set forth what a local agency can and cannot require in approving an urban lot split, including, but not limited to, authorizing a local agency to impose objective zoning standards, objective subdivision standards, and objective design standards, as defined, unless those standards would have the effect of physically precluding the construction of 2 units, as defined, on either of the resulting parcels or physically precluding either of the 2 units from being at least 800 square feet in floor area, prohibiting the imposition of setback requirements under certain circumstances, and setting maximum setback requirements under all other circumstances. The bill would require an applicant to sign an affidavit stating that they intend to occupy one of the housing units as their principal residence for a minimum of 3 years from the date of the approval of the urban lot split, unless the applicant is a community land trust or a qualified nonprofit corporation, as specified. The bill would prohibit a local agency from imposing any additional owner occupancy standards on applicants. By requiring applicants to sign affidavits, thereby expanding the crime of perjury, the bill would impose a state-mandated local program. The bill would also extend the limit on the additional period that may be provided by ordinance, as described above, from 12 months to 24 months and would make other conforming or nonsubstantive changes. The California Environmental Quality Act (CEQA) requires a lead agency, as defined, to prepare, or cause to be prepared, and certify the completion of, an environmental impact report on a project that it proposes to carry out or approve that may have a significant effect on the environment. CEQA does not apply to the approval of ministerial projects. This bill, by establishing the ministerial review processes described above, would thereby exempt the approval of projects subject to those processes from CEQA. The California Coastal Act of 1976 provides for the planning and regulation of development, under a coastal development permit process, within the coastal zone, as defined, that shall be based on various coastal resources planning and management policies set forth in the act. 94 — 2 — Ch. 162 329373 This bill would exempt a local agency from being required to hold public hearings for coastal development permit applications for housing developments and urban lot splits pursuant to the above provisions. By increasing the duties of local agencies with respect to land use regulations, the bill would impose a state-mandated local program. The bill would include findings that changes proposed by this bill address a matter of statewide concern rather than a municipal affair and, therefore, apply to all cities, including charter cities. The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that no reimbursement is required by this act for specified reasons. The people of the State of California do enact as follows: SECTION 1. Section 65852.21 is added to the Government Code, to read: 65852.21. (a) A proposed housing development containing no more than two residential units within a single-family residential zone shall be considered ministerially, without discretionary review or a hearing, if the proposed housing development meets all of the following requirements: (1) The parcel subject to the proposed housing development is located within a city, the boundaries of which include some portion of either an urbanized area or urban cluster, as designated by the United States Census Bureau, or, for unincorporated areas, a legal parcel wholly within the boundaries of an urbanized area or urban cluster, as designated by the United States Census Bureau. (2) The parcel satisfies the requirements specified in subparagraphs (B) to (K), inclusive, of paragraph (6) of subdivision (a) of Section 65913.4. (3) Notwithstanding any provision of this section or any local law, the proposed housing development would not require demolition or alteration of any of the following types of housing: (A) Housing that is subject to a recorded covenant, ordinance, or law that restricts rents to levels affordable to persons and families of moderate, low, or very low income. (B) Housing that is subject to any form of rent or price control through a public entity’s valid exercise of its police power. (C) Housing that has been occupied by a tenant in the last three years. (4) The parcel subject to the proposed housing development is not a parcel on which an owner of residential real property has exercised the owner’s rights under Chapter 12.75 (commencing with Section 7060) of Division 7 of Title 1 to withdraw accommodations from rent or lease within 15 years before the date that the development proponent submits an application. 94 Ch. 162 — 3 — 330374 (5) The proposed housing development does not allow the demolition of more than 25 percent of the existing exterior structural walls, unless the housing development meets at least one of the following conditions: (A) If a local ordinance so allows. (B) The site has not been occupied by a tenant in the last three years. (6) The development is not located within a historic district or property included on the State Historic Resources Inventory, as defined in Section 5020.1 of the Public Resources Code, or within a site that is designated or listed as a city or county landmark or historic property or district pursuant to a city or county ordinance. (b) (1) Notwithstanding any local law and except as provided in paragraph (2), a local agency may impose objective zoning standards, objective subdivision standards, and objective design review standards that do not conflict with this section. (2) (A) The local agency shall not impose objective zoning standards, objective subdivision standards, and objective design standards that would have the effect of physically precluding the construction of up to two units or that would physically preclude either of the two units from being at least 800 square feet in floor area. (B) (i) Notwithstanding subparagraph (A), no setback shall be required for an existing structure or a structure constructed in the same location and to the same dimensions as an existing structure. (ii) Notwithstanding subparagraph (A), in all other circumstances not described in clause (i), a local agency may require a setback of up to four feet from the side and rear lot lines. (c) In addition to any conditions established in accordance with subdivision (b), a local agency may require any of the following conditions when considering an application for two residential units as provided for in this section: (1) Off-street parking of up to one space per unit, except that a local agency shall not impose parking requirements in either of the following instances: (A) The parcel is located within one-half mile walking distance of either a high-quality transit corridor, as defined in subdivision (b) of Section 21155 of the Public Resources Code, or a major transit stop, as defined in Section 21064.3 of the Public Resources Code. (B) There is a car share vehicle located within one block of the parcel. (2) For residential units connected to an onsite wastewater treatment system, a percolation test completed within the last 5 years, or, if the percolation test has been recertified, within the last 10 years. (d) Notwithstanding subdivision (a), a local agency may deny a proposed housing development project if the building official makes a written finding, based upon a preponderance of the evidence, that the proposed housing development project would have a specific, adverse impact, as defined and determined in paragraph (2) of subdivision (d) of Section 65589.5, upon public health and safety or the physical environment and for which there is 94 — 4 — Ch. 162 331375 no feasible method to satisfactorily mitigate or avoid the specific, adverse impact. (e) A local agency shall require that a rental of any unit created pursuant to this section be for a term longer than 30 days. (f) Notwithstanding Section 65852.2 or 65852.22, a local agency shall not be required to permit an accessory dwelling unit or a junior accessory dwelling unit on parcels that use both the authority contained within this section and the authority contained in Section 66411.7. (g) Notwithstanding subparagraph (B) of paragraph (2) of subdivision (b), an application shall not be rejected solely because it proposes adjacent or connected structures provided that the structures meet building code safety standards and are sufficient to allow separate conveyance. (h) Local agencies shall include units constructed pursuant to this section in the annual housing element report as required by subparagraph (I) of paragraph (2) of subdivision (a) of Section 65400. (i) For purposes of this section, all of the following apply: (1) A housing development contains two residential units if the development proposes no more than two new units or if it proposes to add one new unit to one existing unit. (2) The terms “objective zoning standards,” “objective subdivision standards,” and “objective design review standards” mean standards that involve no personal or subjective judgment by a public official and are uniformly verifiable by reference to an external and uniform benchmark or criterion available and knowable by both the development applicant or proponent and the public official prior to submittal. These standards may be embodied in alternative objective land use specifications adopted by a local agency, and may include, but are not limited to, housing overlay zones, specific plans, inclusionary zoning ordinances, and density bonus ordinances. (3) “Local agency” means a city, county, or city and county, whether general law or chartered. (j) A local agency may adopt an ordinance to implement the provisions of this section. An ordinance adopted to implement this section shall not be considered a project under Division 13 (commencing with Section 21000) of the Public Resources Code. (k) Nothing in this section shall be construed to supersede or in any way alter or lessen the effect or application of the California Coastal Act of 1976 (Division 20 (commencing with Section 30000) of the Public Resources Code), except that the local agency shall not be required to hold public hearings for coastal development permit applications for a housing development pursuant to this section. SEC. 2. Section 66411.7 is added to the Government Code, to read: 66411.7. (a) Notwithstanding any other provision of this division and any local law, a local agency shall ministerially approve, as set forth in this section, a parcel map for an urban lot split only if the local agency determines that the parcel map for the urban lot split meets all the following requirements: 94 Ch. 162 — 5 — 332376 (1) The parcel map subdivides an existing parcel to create no more than two new parcels of approximately equal lot area provided that one parcel shall not be smaller than 40 percent of the lot area of the original parcel proposed for subdivision. (2) (A) Except as provided in subparagraph (B), both newly created parcels are no smaller than 1,200 square feet. (B) A local agency may by ordinance adopt a smaller minimum lot size subject to ministerial approval under this subdivision. (3) The parcel being subdivided meets all the following requirements: (A) The parcel is located within a single-family residential zone. (B) The parcel subject to the proposed urban lot split is located within a city, the boundaries of which include some portion of either an urbanized area or urban cluster, as designated by the United States Census Bureau, or, for unincorporated areas, a legal parcel wholly within the boundaries of an urbanized area or urban cluster, as designated by the United States Census Bureau. (C) The parcel satisfies the requirements specified in subparagraphs (B) to (K), inclusive, of paragraph (6) of subdivision (a) of Section 65913.4. (D) The proposed urban lot split would not require demolition or alteration of any of the following types of housing: (i) Housing that is subject to a recorded covenant, ordinance, or law that restricts rents to levels affordable to persons and families of moderate, low, or very low income. (ii) Housing that is subject to any form of rent or price control through a public entity’s valid exercise of its police power. (iii) A parcel or parcels on which an owner of residential real property has exercised the owner’s rights under Chapter 12.75 (commencing with Section 7060) of Division 7 of Title 1 to withdraw accommodations from rent or lease within 15 years before the date that the development proponent submits an application. (iv) Housing that has been occupied by a tenant in the last three years. (E) The parcel is not located within a historic district or property included on the State Historic Resources Inventory, as defined in Section 5020.1 of the Public Resources Code, or within a site that is designated or listed as a city or county landmark or historic property or district pursuant to a city or county ordinance. (F) The parcel has not been established through prior exercise of an urban lot split as provided for in this section. (G) Neither the owner of the parcel being subdivided nor any person acting in concert with the owner has previously subdivided an adjacent parcel using an urban lot split as provided for in this section. (b) An application for a parcel map for an urban lot split shall be approved in accordance with the following requirements: (1) A local agency shall approve or deny an application for a parcel map for an urban lot split ministerially without discretionary review. (2) A local agency shall approve an urban lot split only if it conforms to all applicable objective requirements of the Subdivision Map Act (Division 94 — 6 — Ch. 162 333377 2 (commencing with Section 66410)), except as otherwise expressly provided in this section. (3) Notwithstanding Section 66411.1, a local agency shall not impose regulations that require dedications of rights-of-way or the construction of offsite improvements for the parcels being created as a condition of issuing a parcel map for an urban lot split pursuant to this section. (c) (1) Except as provided in paragraph (2), notwithstanding any local law, a local agency may impose objective zoning standards, objective subdivision standards, and objective design review standards applicable to a parcel created by an urban lot split that do not conflict with this section. (2) A local agency shall not impose objective zoning standards, objective subdivision standards, and objective design review standards that would have the effect of physically precluding the construction of two units on either of the resulting parcels or that would result in a unit size of less than 800 square feet. (3) (A) Notwithstanding paragraph (2), no setback shall be required for an existing structure or a structure constructed in the same location and to the same dimensions as an existing structure. (B) Notwithstanding paragraph (2), in all other circumstances not described in subparagraph (A), a local agency may require a setback of up to four feet from the side and rear lot lines. (d) Notwithstanding subdivision (a), a local agency may deny an urban lot split if the building official makes a written finding, based upon a preponderance of the evidence, that the proposed housing development project would have a specific, adverse impact, as defined and determined in paragraph (2) of subdivision (d) of Section 65589.5, upon public health and safety or the physical environment and for which there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact. (e) In addition to any conditions established in accordance with this section, a local agency may require any of the following conditions when considering an application for a parcel map for an urban lot split: (1) Easements required for the provision of public services and facilities. (2) A requirement that the parcels have access to, provide access to, or adjoin the public right-of-way. (3) Off-street parking of up to one space per unit, except that a local agency shall not impose parking requirements in either of the following instances: (A) The parcel is located within one-half mile walking distance of either a high-quality transit corridor as defined in subdivision (b) of Section 21155 of the Public Resources Code, or a major transit stop as defined in Section 21064.3 of the Public Resources Code. (B) There is a car share vehicle located within one block of the parcel. (f) A local agency shall require that the uses allowed on a lot created by this section be limited to residential uses. (g) (1) A local agency shall require an applicant for an urban lot split to sign an affidavit stating that the applicant intends to occupy one of the 94 Ch. 162 — 7 — 334378 housing units as their principal residence for a minimum of three years from the date of the approval of the urban lot split. (2) This subdivision shall not apply to an applicant that is a “community land trust,” as defined in clause (ii) of subparagraph (C) of paragraph (11) of subdivision (a) of Section 402.1 of the Revenue and Taxation Code, or is a “qualified nonprofit corporation” as described in Section 214.15 of the Revenue and Taxation Code. (3) A local agency shall not impose additional owner occupancy standards, other than provided for in this subdivision, on an urban lot split pursuant to this section. (h) A local agency shall require that a rental of any unit created pursuant to this section be for a term longer than 30 days. (i) A local agency shall not require, as a condition for ministerial approval of a parcel map application for the creation of an urban lot split, the correction of nonconforming zoning conditions. (j) (1) Notwithstanding any provision of Section 65852.2, 65852.21, 65852.22, 65915, or this section, a local agency shall not be required to permit more than two units on a parcel created through the exercise of the authority contained within this section. (2) For the purposes of this section, “unit” means any dwelling unit, including, but not limited to, a unit or units created pursuant to Section 65852.21, a primary dwelling, an accessory dwelling unit as defined in Section 65852.2, or a junior accessory dwelling unit as defined in Section 65852.22. (k) Notwithstanding paragraph (3) of subdivision (c), an application shall not be rejected solely because it proposes adjacent or connected structures provided that the structures meet building code safety standards and are sufficient to allow separate conveyance. (l) Local agencies shall include the number of applications for parcel maps for urban lot splits pursuant to this section in the annual housing element report as required by subparagraph (I) of paragraph (2) of subdivision (a) of Section 65400. (m) For purposes of this section, both of the following shall apply: (1) “Objective zoning standards,” “objective subdivision standards,” and “objective design review standards” mean standards that involve no personal or subjective judgment by a public official and are uniformly verifiable by reference to an external and uniform benchmark or criterion available and knowable by both the development applicant or proponent and the public official prior to submittal. These standards may be embodied in alternative objective land use specifications adopted by a local agency, and may include, but are not limited to, housing overlay zones, specific plans, inclusionary zoning ordinances, and density bonus ordinances. (2) “Local agency” means a city, county, or city and county, whether general law or chartered. (n) A local agency may adopt an ordinance to implement the provisions of this section. An ordinance adopted to implement this section shall not be 94 — 8 — Ch. 162 335379 considered a project under Division 13 (commencing with Section 21000) of the Public Resources Code. (o) Nothing in this section shall be construed to supersede or in any way alter or lessen the effect or application of the California Coastal Act of 1976 (Division 20 (commencing with Section 30000) of the Public Resources Code), except that the local agency shall not be required to hold public hearings for coastal development permit applications for urban lot splits pursuant to this section. SEC. 3. Section 66452.6 of the Government Code is amended to read: 66452.6. (a) (1) An approved or conditionally approved tentative map shall expire 24 months after its approval or conditional approval, or after any additional period of time as may be prescribed by local ordinance, not to exceed an additional 24 months. However, if the subdivider is required to expend two hundred thirty-six thousand seven hundred ninety dollars ($236,790) or more to construct, improve, or finance the construction or improvement of public improvements outside the property boundaries of the tentative map, excluding improvements of public rights-of-way that abut the boundary of the property to be subdivided and that are reasonably related to the development of that property, each filing of a final map authorized by Section 66456.1 shall extend the expiration of the approved or conditionally approved tentative map by 48 months from the date of its expiration, as provided in this section, or the date of the previously filed final map, whichever is later. The extensions shall not extend the tentative map more than 10 years from its approval or conditional approval. However, a tentative map on property subject to a development agreement authorized by Article 2.5 (commencing with Section 65864) of Chapter 4 of Division 1 may be extended for the period of time provided for in the agreement, but not beyond the duration of the agreement. The number of phased final maps that may be filed shall be determined by the advisory agency at the time of the approval or conditional approval of the tentative map. (2) Commencing January 1, 2012, and each calendar year thereafter, the amount of two hundred thirty-six thousand seven hundred ninety dollars ($236,790) shall be annually increased by operation of law according to the adjustment for inflation set forth in the statewide cost index for class B construction, as determined by the State Allocation Board at its January meeting. The effective date of each annual adjustment shall be March 1. The adjusted amount shall apply to tentative and vesting tentative maps whose applications were received after the effective date of the adjustment. (3) “Public improvements,” as used in this subdivision, include traffic controls, streets, roads, highways, freeways, bridges, overcrossings, street interchanges, flood control or storm drain facilities, sewer facilities, water facilities, and lighting facilities. (b) (1) The period of time specified in subdivision (a), including any extension thereof granted pursuant to subdivision (e), shall not include any period of time during which a development moratorium, imposed after approval of the tentative map, is in existence. However, the length of the moratorium shall not exceed five years. 94 Ch. 162 — 9 — 336380 (2) The length of time specified in paragraph (1) shall be extended for up to three years, but in no event beyond January 1, 1992, during the pendency of any lawsuit in which the subdivider asserts, and the local agency that approved or conditionally approved the tentative map denies, the existence or application of a development moratorium to the tentative map. (3) Once a development moratorium is terminated, the map shall be valid for the same period of time as was left to run on the map at the time that the moratorium was imposed. However, if the remaining time is less than 120 days, the map shall be valid for 120 days following the termination of the moratorium. (c) The period of time specified in subdivision (a), including any extension thereof granted pursuant to subdivision (e), shall not include the period of time during which a lawsuit involving the approval or conditional approval of the tentative map is or was pending in a court of competent jurisdiction, if the stay of the time period is approved by the local agency pursuant to this section. After service of the initial petition or complaint in the lawsuit upon the local agency, the subdivider may apply to the local agency for a stay pursuant to the local agency’s adopted procedures. Within 40 days after receiving the application, the local agency shall either stay the time period for up to five years or deny the requested stay. The local agency may, by ordinance, establish procedures for reviewing the requests, including, but not limited to, notice and hearing requirements, appeal procedures, and other administrative requirements. (d) The expiration of the approved or conditionally approved tentative map shall terminate all proceedings and no final map or parcel map of all or any portion of the real property included within the tentative map shall be filed with the legislative body without first processing a new tentative map. Once a timely filing is made, subsequent actions of the local agency, including, but not limited to, processing, approving, and recording, may lawfully occur after the date of expiration of the tentative map. Delivery to the county surveyor or city engineer shall be deemed a timely filing for purposes of this section. (e) Upon application of the subdivider filed before the expiration of the approved or conditionally approved tentative map, the time at which the map expires pursuant to subdivision (a) may be extended by the legislative body or by an advisory agency authorized to approve or conditionally approve tentative maps for a period or periods not exceeding a total of six years. The period of extension specified in this subdivision shall be in addition to the period of time provided by subdivision (a). Before the expiration of an approved or conditionally approved tentative map, upon an application by the subdivider to extend that map, the map shall automatically be extended for 60 days or until the application for the extension is approved, conditionally approved, or denied, whichever occurs first. If the advisory agency denies a subdivider’s application for an extension, the subdivider may appeal to the legislative body within 15 days after the advisory agency has denied the extension. 94 — 10 — Ch. 162 337381 (f) For purposes of this section, a development moratorium includes a water or sewer moratorium, or a water and sewer moratorium, as well as other actions of public agencies that regulate land use, development, or the provision of services to the land, including the public agency with the authority to approve or conditionally approve the tentative map, which thereafter prevents, prohibits, or delays the approval of a final or parcel map. A development moratorium shall also be deemed to exist for purposes of this section for any period of time during which a condition imposed by the city or county could not be satisfied because of either of the following: (1) The condition was one that, by its nature, necessitated action by the city or county, and the city or county either did not take the necessary action or by its own action or inaction was prevented or delayed in taking the necessary action before expiration of the tentative map. (2) The condition necessitates acquisition of real property or any interest in real property from a public agency, other than the city or county that approved or conditionally approved the tentative map, and that other public agency fails or refuses to convey the property interest necessary to satisfy the condition. However, nothing in this subdivision shall be construed to require any public agency to convey any interest in real property owned by it. A development moratorium specified in this paragraph shall be deemed to have been imposed either on the date of approval or conditional approval of the tentative map, if evidence was included in the public record that the public agency that owns or controls the real property or any interest therein may refuse to convey that property or interest, or on the date that the public agency that owns or controls the real property or any interest therein receives an offer by the subdivider to purchase that property or interest for fair market value, whichever is later. A development moratorium specified in this paragraph shall extend the tentative map up to the maximum period as set forth in subdivision (b), but not later than January 1, 1992, so long as the public agency that owns or controls the real property or any interest therein fails or refuses to convey the necessary property interest, regardless of the reason for the failure or refusal, except that the development moratorium shall be deemed to terminate 60 days after the public agency has officially made, and communicated to the subdivider, a written offer or commitment binding on the agency to convey the necessary property interest for a fair market value, paid in a reasonable time and manner. SEC. 4. The Legislature finds and declares that ensuring access to affordable housing is a matter of statewide concern and not a municipal affair as that term is used in Section 5 of Article XI of the California Constitution. Therefore, Sections 1 and 2 of this act adding Sections 65852.21 and 66411.7 to the Government Code and Section 3 of this act amending Section 66452.6 of the Government Code apply to all cities, including charter cities. SEC. 5. No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because a local agency or school district has the authority to levy service charges, fees, or assessments sufficient to pay for the program or level of service mandated by this act or 94 Ch. 162 — 11 — 338382 because costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution. O 94 — 12 — Ch. 162 339383 93939.00053\34475756.3 EXHIBIT A TITLE 16 (SUBDIVISIONS) CHAPTER 16.50 URBAN LOT SPLITS Section 16.50.010 Purpose The purpose of this chapter is to allow and appropriately regulate urban lot splits in accordance with Government Code section 66411.7. Section 16.50.020 Definition An “urban lot split” means a the subdivision of an existing, legally subdivided lot into two lots in accordance with the requirements of this section. Section 16.50.030 Application (1)Only individual property owners may apply for an urban lot split. “Individual property owner” means a natural person holding fee title individually or jointly in the person’s own name or a beneficiary of a trust that holds fee title. “Individual property owner” does not include any corporation or corporate person of any kind (partnership, LP, LLC, C corp, S corp, etc.) except for a community land trust (as defined by Rev. & Tax Code § 402.1(a)(11)(C)(ii)) or a qualified nonprofit corporation (as defined by § 214.15). (2)An application for an urban lot split must be submitted on the city’s approved form. Only a complete application will be considered. The city will inform the applicant in writing of any incompleteness within 30 days after the application is submitted. (3)The city may establish a fee to recover its costs for adopting, implementing, and enforcing this section of the code, in accordance with applicable law. The city council may establish and change the fee by resolution. The fee must be paid with the application. Section 16.50.040 Approval (1)An application for a parcel map for an urban lot split is approved or denied ministerially, by the planning director or his or her designee, without discretionary review. (2)A tentative parcel map for an urban lot split is approved ministerially if it complies with all the requirements of this section. The tentative parcel map may not be recorded. A final parcel map is approved ministerially as well, but not until the owner demonstrates that the required documents have been recorded, such as the deed restriction and easements. The tentative parcel map expires three months after approval. SUPPLEMENTAL Agenda Item: 10A October 25, 2021 340 93939.00053\34475756.3 (3) The approval must require the owner and applicant to hold the city harmless from all claims and damages related to the approval and its subject matter. (4) The approval must require the owner and applicant to reimburse the city for all costs of enforcement, including attorneys’ fees and costs associated with enforcing the requirements of this code. Section 16.50.050 Requirements (a) An urban lot split must satisfy each of the following requirements: (1) Map Act Compliance. (A) The urban lot split must conform to all applicable objective requirements of the Subdivision Map Act (Gov. Code § 66410 et. seq., “SMA”), including implementing requirements in this code, except as otherwise expressly provided in this section. (B) If an urban lot split violates any part of the SMA, the city’s subdivision regulations, including this section, or any other legal requirement: (i) The buyer or grantee of a lot that is created by the urban lot split has all the remedies available under the SMA, including but not limited to an action for damages or to void the deed, sale, or contract. (ii) The city has all the remedies available to it under the SMA, including but not limited to the following: (I) An action to enjoin any attempt to sell, lease, or finance the property. (II) An action for other legal, equitable, or summary remedy, such as declaratory and injunctive relief. (III) Criminal prosecution, punishable by imprisonment in county jail or state prison for up to one year, by a fine of up to $10,000, or both; or a misdemeanor. (IV) Record a notice of violation. (V) Withhold any or all future permits and approvals. (C) Notwithstanding section 66411.1 of the SMA, no dedication of rights-of- way or construction of offsite improvements is required for an urban lot split. (2) Zone. The lot to be split is in a single-family residential zone. 341 93939.00053\34475756.3 (3) Lot Location. (A) The lot to be split is not located on a site that is any of the following: (i) Prime farmland, farmland of statewide importance, or land that is zoned or designated for agricultural protection or preservation by the voters. (ii) A wetland. (iii) Within a very high fire hazard severity zone, unless the site complies with all fire-hazard mitigation measures required by existing building standards. (iv) A hazardous waste site that has not been cleared for residential use. (v) Within a delineated earthquake fault zone, unless all development on the site complies with applicable seismic protection building code standards. (vi) Within a 100-year flood hazard area, unless the site has either: (I) been subject to a Letter of Map Revision prepared by the Federal Emergency Management Agency and issued to the local jurisdiction, or (II) meets Federal Emergency Management Agency requirements necessary to meet minimum flood plain management criteria of the National Flood Insurance Program. (vii) Within a regulatory floodway, unless all development on the site has received a no-rise certification. (viii) Land identified for conservation in an adopted natural community conservation plan, habitat conservation plan, or other adopted natural resource protection plan. (ix) Habitat for protected species. (x) Land under conservation easement. (B) The purpose of subpart (3)(A) above is merely to summarize the requirements of Government Code section 65913.4(a)(6)(B)–(K). (See Gov. Code § 66411.7(a)(3)(C).) (4) Not Historic. The lot to be split must not be a historic property or within a historic district that is included on the State Historic Resources Inventory. Nor 342 93939.00053\34475756.3 may the lot be or be within a site that is designated by ordinance as a city or county landmark or as a historic property or district. (5) No Prior Urban Lot Split. (A) The lot to be split was not established through a prior urban lot split. (B) The lot to be split is not adjacent to any lot that was established through a prior urban lot split by the owner of the lot to be split or by any person acting in concert with the owner. (6) No Impact on Protected Housing. The urban lot split must not require or include the demolition or alteration of any of the following types of housing: (A) Housing that is income-restricted for households of moderate, low, or very low income. (B) Housing that is subject to any form of rent or price control through a public entity’s valid exercise of its police power. (C) Housing, or a lot that used to have housing, that has been withdrawn from rental or lease under the Ellis Act (Gov. Code §§ 7060–7060.7) at any time in the 15 years prior to submission of the urban lot split application. (D) Housing that has been occupied by a tenant in the last three years. The applicant and the owner of a property for which an urban lot split is sought must provide a sworn statement as to this fact with the application for the parcel map. The city may conduct its own inquiries and investigation to ascertain the veracity of the sworn statement, including but not limited to, surveying owners of nearby properties; and the city may require additional evidence of the applicant and owner as necessary to determine compliance with this requirement. (7) Lot Size. (A) The lot to be split must be at least 2,400 square feet. (B) The resulting lots must each be at least 1,200 square feet. (C) Each of the resulting lots must be between 60 percent and 40 percent of the original lot area. (8) Easements. (A) The owner must enter into an easement agreement with each public- service provider to establish easements that are sufficient for the provision of public services and facilities to each of the resulting lots. 343 93939.00053\34475756.3 (B) Each easement must be shown on the tentative parcel map. (C) Copies of the unrecorded easement agreements must be submitted with the application. The easement agreements must be recorded against the property before the final map may be approved, in accordance with Section 16.50.040. (9) Lot Access. (A) Each resulting lot must adjoin the right of way. (B) Each resulting lot must have frontage on the right of way of at least 12.5 feet. (10) Unit Standards. (A) Quantity. No more than two dwelling units of any kind may be built on a lot that results from an urban lot split. For purposes of this paragraph, “unit” means any dwelling unit, including, but not limited to, a primary dwelling unit, a unit created under Chapter 17.45 of this code, an ADU, or a JADU (B) Unit Size. (i) The total floor area of each primary dwelling that is developed on a resulting lot must be (I) less than or equal to 800 and (II) more than 500 square feet. (ii) A primary dwelling that was legally established prior to the urban lot split and that is larger than 800 square feet is limited to the lawful floor area at the time of the urban lot split. It may not be expanded. (iii) A primary dwelling that was legally established prior to the urban lot split and that is smaller than 800 square feet may be expanded to 800 square feet after the urban lot split. (C) Height Restrictions. (i) On a resulting lot that is larger than 2,000 square feet, no new primary dwelling unit may exceed a single story or 16 feet in height, measured from grade to peak of the structure. (ii) On a resulting lot that is smaller than 2,000 square feet, no new primary dwelling unit may exceed two stories or 22 feet in height, 344 93939.00053\34475756.3 measured from grade to peak of the structure. Any portion of a new primary dwelling that exceeds one story must be stepped back by an additional five feet from the ground floor; no balcony deck or other portion of the second story may project into the stepback. (iii) No rooftop deck is permitted on any new or remodeled dwelling or structure on a lot resulting from an urban lot split. (D) Proximity to Stable and Corral Site. A primary dwelling unit is a residential structure that shall be located a minimum of thirty-five feet from any stable, corral, and related animal keeping uses and structures as required in Chapter 17.18. This standard is only enforced to the extent that it does not prevent two primary dwelling units on the lot at 800 square feet each. (E) Lot Coverage. All structures as defined in Section 17.16.070 on a lot shall not cover more than twenty percent of the net lot area. All structures and all other impervious surfaces as defined in Section 17.16.070 on a lot shall not cover more than thirty-five percent of the net lot area. These lot coverage standards are only enforced to the extent that they do not prevent two primary dwelling units on the lot at 800 square feet each. (F) Open Space. No development pursuant to this Chapter may cause the total percentage of open space of the lot fall below fifty percent. This open space standard is only enforced to the extent that it does not prevent two primary dwelling units on the lot at 800 square feet each. (G) Setbacks. (i) Generally. All setbacks must conform to those objective setbacks that are imposed through the underlying zone. (ii) Exceptions. Notwithstanding subpart (10)(G) above: (I) Existing Structures. No setback is required for an existing legally established structure or for a new structure that is constructed in the same location and to the same dimensions as an existing legally established structure. (II) 800 sf; four-foot side and rear. The setbacks imposed by the underlying zone must yield to the degree necessary to avoid physically precluding the construction of up to two units on the lot or either of the two units from being at least 800 square feet in floor area; but in no event may any structure be less than four feet from a side or rear property line. 345 93939.00053\34475756.3 (iii) Front Setback Area. Notwithstanding any other part of this code, dwellings that are constructed after an urban lot split must be at least 30 feet from the front property lines. The front setback area must: (I) be kept free from all structures greater than three feet high; (II) be at least 50 percent landscaped with drought-tolerant plants, with vegetation and irrigation plans approved by a licensed landscape architect; (III) allow for vehicular and fire-safety access to the front structure. (H) Parking. Each new primary dwelling unit that is built on a lot after an urban lot split must have at least one off-street parking space per unit unless one of the following applies: (i) The lot is located within one-half mile walking distance of either (I) a corridor with fixed route bus service with service intervals no longer than 15 minutes during peak commute hours or (II) a site that contains (ia) an existing rail or bus rapid transit station, (ib) a ferry terminal served by either a bus or rail transit service, or (ic) the intersection of two or more major bus routes with a frequency of service interval of 15 minutes or less during the morning and afternoon peak commute periods. (ii) The site is located within one block of a car-share vehicle location. (I) Architecture. (i) Architecture is limited to white California ranch style homes with three-rail fences. (ii) If there is a legal primary dwelling on the lot that was established before the urban lot split, any new primary dwelling unit must match the existing primary dwelling unit in exterior materials, color, and dominant roof pitch. The dominant roof slope is the slope shared by the largest portion of the roof. 346 93939.00053\34475756.3 (iii) If there is no legal primary dwelling on the lot before the urban lot split, and if two primary dwellings are developed on the lot, the dwellings must match each other in exterior materials, color, and dominant roof pitch. The dominant roof slope is the slope shared by the largest portion of the roof. (iv) All exterior lighting must be limited to down-lights. (v) No window or door of a dwelling that is constructed on the lot after the urban lot split may have a direct line of sight to an adjoining residential property. Fencing, landscaping, or privacy glass may be used to provide screening and prevent a direct line of sight. (vi) If a dwelling is constructed on a lot after an urban lot split and any portion of the dwelling is less than 30 feet from a property line that is not a public right-of-way line, then all windows and doors in that portion must either be (for windows) clerestory with the bottom of the glass at least six feet above the finished floor, or (for windows and for doors) utilize frosted or obscure glass. (J) Landscaping. Evergreen landscape screening must be planted and maintained between each dwelling and adjacent lots (but not rights of way) as follows: (i) At least one 15-gallon size plant shall be provided for every five linear feet of exterior wall. Alternatively, at least one 24” box size plant shall be provided for every ten linear feet of exterior wall. (ii) Plant specimens must be at least eight feet tall when installed. As an alternative, a solid fence of at least eight feet in height may be installed. (iii) All landscaping must be drought-tolerant. (iv) All landscaping must be from the city’s approved plant list. (K) Nonconforming Conditions. An urban lot split may be approved without requiring a legal nonconforming zoning condition to be corrected. (L) Utilities. (i) Each primary dwelling unit on the resulting lots must have its own direct utility connection to the utility service provider. (ii) Each primary dwelling unit on the resulting lots that is or that is proposed to be connected to an onsite wastewater treatment system must first have a percolation test completed within the last five 347 93939.00053\34475756.3 years or, if the percolation test has been recertified, within the last 10 years. (M) Building & Safety. All structures built on the lot must comply with all current local building standards. An urban lot split is a change of use. (11) Fire-Hazard Mitigation Measures. (A) A lot in a very high fire hazard severity zone must comply with each of the following fire-hazard mitigation measures: (i) It must have direct access to a public right of way with a paved street with a width of at least 40 feet. The public right of way must have at least two independent points of access for fire and life safety to access and for residents to evacuate. (ii) All dwellings on the site must comply with current fire code requirements for dwellings in a very high fire hazard severity zone. (iii) All enclosed structures on the site must have fire sprinklers. (iv) All sides of all dwellings on the site must be within a 150-foot hose-pull distance from either the public right of way or of an onsite fire hydrant or standpipe. (v) If the lot does not have a swimming pool, the lot must have a water reservoir of at least 5,000 gallons per dwelling, with fire-authority approved hookups compatible with fire-authority standard pump and hose equipment. (B) Prior to submitting an application for an urban lot split, the applicant must obtain a certificate of compliance with all applicable fire-hazard mitigation measures in accordance with this subpart (11). The city or its authorized agent must inspect the site, including all structures on the site, and certify as to its compliance. The certificate must be included with the application. The applicant must pay the city’s costs for inspection. Failure to pay is grounds for denying the application. (12) Separate Conveyance. (A) Within a resulting lot. (i) Primary dwelling units on a lot that is created by an urban lot split may not be owned or conveyed separately from each other. (ii) Condominium airspace divisions and common interest developments are not permitted on a lot that is created by an urban lot split. 348 93939.00053\34475756.3 (iii) All fee interest in a lot and all dwellings on the lot must be held equally and undivided by all individual property owners. (B) Between resulting lots. Separate conveyance of the resulting lots is permitted. If dwellings or other structures (such as garages) on different lots are adjacent or attached to each other, the urban lot split boundary may separate them for conveyance purposes if the structures meet building code safety standards and are sufficient to allow separate conveyance. If any attached structures span or will span the new lot line, the owner must record appropriate CC&Rs, easements, or other documentation that is necessary to allocate rights and responsibility between the owners of the two lots. (13) Regulation of Uses. (A) Residential-only. No non-residential use is permitted on any lot created by urban lot split. (B) No STRs. No dwelling unit on a lot that is created by an urban lot split may be rented for a period of less than 30 days. (C) Owner Occupancy. The applicant for an urban lot split must sign an affidavit stating that the applicant intends to occupy one of the dwelling units on one of the resulting lots as the applicant's principal residence for a minimum of three years after the urban lot split is approved. (14) Notice of Construction. (A) At least 30 business days before starting any construction of a structure on a lot created by an urban lot split, the property owner must give written notice to all the owners of record of each of the adjacent residential parcels, which notice must include the following information: (i) Notice that construction has been authorized, (ii) The anticipated start and end dates for construction, (iii) The hours of construction, (iv) Contact information for the project manager (for construction- related complaints), and (v) Contact information for the Building & Safety Department. (B) This notice requirement does not confer a right on the noticed persons or on anyone else to comment on the project before permits are issued. Approval is ministerial. Under state law, the City has no discretion in approving or denying a particular project under this section. This notice 349 93939.00053\34475756.3 requirement is purely to promote neighborhood awareness and expectation. (15) Deed Restriction. The owner must record a deed restriction, acceptable to the city, that does each of the following: (A) Expressly prohibits any rental of any dwelling on the property for a period of less than 30 days. (B) Expressly prohibits any non-residential use of the lots created by the urban lot split. (C) Expressly prohibits any separate conveyance of a primary dwelling on the property, any separate fee interest, and any common interest development within the lot. (D) States that the property is formed by an urban lot split and is therefore subject to the city’s urban lot split regulations, including all applicable limits on dwelling size and development. (b) Specific Adverse Impacts. (1) Notwithstanding anything else in this section, the city may deny an application for an urban lot split if the building official makes a written finding, based on a preponderance of the evidence, that the project would have a “specific, adverse impact” on either public health and safety or on the physical environment and for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact. (2) “Specific adverse impact” has the same meaning as in Gov. Code § 65589.5(d)(2): “a significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete” and does not include (1) inconsistency with the zoning ordinance or general plan land use designation or (2) the eligibility to claim a welfare exemption under Revenue and Taxation Code section 214(g). (3) The building official may consult with and be assisted by planning staff and others as necessary in making a finding of specific, adverse impact. TITLE 17 (ZONING) CHAPTER 17.45 (TWO-UNIT PROJECTS) 17.45.010 Purpose The purpose of this section is to allow and appropriately regulate two-unit projects in accordance with Government Code section 65852.21. 350 93939.00053\34475756.3 17.45.020 Definition A “two-unit project” means the development of two primary dwelling units or, if there is already a primary dwelling unit on the lot, the development of a second primary dwelling unit on a legally subdivided lot in accordance with the requirements of this section. 17.45.030 Application (1) Only individual property owners may apply for a two-unit project. “Individual property owner” means a natural person holding fee title individually or jointly in the person’s own name or a beneficiary of a trust that holds fee title. “Individual property owner” does not include any corporation or corporate person of any kind (partnership, LP, LLC, C corp, S corp, etc.) except for a community land trust (as defined by Rev. & Tax Code § 402.1(a)(11)(C)(ii)) or a qualified nonprofit corporation (as defined by § 214.15). (2) An application for a two-unit project must be submitted on the city’s approved form. (3) The applicant must obtain a certificate of compliance with the Subdivision Map Act for the lot and provide the certificate with the application. (4) Only a complete application will be considered. The city will inform the applicant in writing of any incompleteness within 30 days after the application is submitted. (5) The city may establish a fee to recover its costs for adopting, implementing, and enforcing this section of the code, in accordance with applicable law. The city council may establish and change the fee by resolution. The fee must be paid with the application. 17.45.040 Approval (1) An application for a two-unit project is approved or denied ministerially, by the planning director or his or her designee, without discretionary review. (2) The ministerial approval of a two-unit project does not take effect until the city has confirmed that the required documents have been recorded, such as the deed restriction and easements. (3) The approval must require the owner and applicant to hold the city harmless from all claims and damages related to the approval and its subject matter. (4) The approval must require the owner and applicant to reimburse the city for all costs of enforcement, including attorneys’ fees and costs associated with enforcing the requirements of this code. 351 93939.00053\34475756.3 17.45.050 Requirements (a) A two-unit project must satisfy each of the following requirements: (1) Map Act Compliance. The lot must have been legally subdivided. (2) Zone. The lot is in a single-family residential zone. (3) Lot Location. (A) The lot is not located on a site that is any of the following: (i) Prime farmland, farmland of statewide importance, or land that is zoned or designated for agricultural protection or preservation by the voters. (ii) A wetland. (iii) Within a very high fire hazard severity zone, unless the site complies with all fire-hazard mitigation measures required by existing building standards. (iv) A hazardous waste site that has not been cleared for residential use. (v) Within a delineated earthquake fault zone, unless all development on the site complies with applicable seismic protection building code standards. (vi) Within a 100-year flood hazard area, unless the site has either: (I) been subject to a Letter of Map Revision prepared by the Federal Emergency Management Agency and issued to the local jurisdiction, or (II) meets Federal Emergency Management Agency requirements necessary to meet minimum flood plain management criteria of the National Flood Insurance Program. (vii) Within a regulatory floodway, unless all development on the site has received a no-rise certification. (viii) Land identified for conservation in an adopted natural community conservation plan, habitat conservation plan, or other adopted natural resource protection plan. (ix) Habitat for protected species. (x) Land under conservation easement. 352 93939.00053\34475756.3 (B) The purpose of subpart (3)(A) above is merely to summarize the requirements of Government Code section 65913.4(a)(6)(B)–(K). (See Gov. Code § 66411.7(a)(3)(C).) (4) Not Historic. The lot must not be a historic property or within a historic district that is included on the State Historic Resources Inventory. Nor may the lot be or be within a site that is designated by ordinance as a city or county landmark or as a historic property or district. (5) No Impact on Protected Housing. The two-unit project must not require or include the demolition or alteration of any of the following types of housing: (A) Housing that is income-restricted for households of moderate, low, or very low income. (B) Housing that is subject to any form of rent or price control through a public entity’s valid exercise of its police power. (C) Housing, or a lot that used to have housing, that has been withdrawn from rental or lease under the Ellis Act (Gov. Code §§ 7060–7060.7) at any time in the 15 years prior to submission of the urban lot split application. (D) Housing that has been occupied by a tenant in the last three years. Optional: The applicant and the owner of a property for which a two-unit project is sought must provide a sworn statement as to this fact with the application for the parcel map. The city may conduct its own inquiries and investigation to ascertain the veracity of the sworn statement, including but not limited to, surveying owners of nearby properties; and the city may require additional evidence of the applicant and owner as necessary to determine compliance with this requirement. (6) Unit Standards. (A) Quantity. (i) No more than two dwelling units of any kind may be built on a lot that results from an urban lot split. For purposes of this paragraph, “unit” means any dwelling unit, including, but not limited to, a primary dwelling unit, a unit created under this section of this code, an ADU, or a JADU. (ii) A lot that is not created by an urban lot split may have a two-unit project under this section, plus any ADU or JADU that must be allowed under state law and the city’s ADU ordinance. 353 93939.00053\34475756.3 (B) Unit Size. (i) The total floor area of each primary dwelling built that is developed under this section must be (I) less than or equal to 800 and (II) more than 500 square feet. (ii) A primary dwelling that was legally established on the lot prior to the two-unit project and that is larger than 800 square feet is limited to the lawful floor area at the time of the two-unit project. The unit may not be expanded. (iii) A primary dwelling that was legally established prior to the two- unit project and that is smaller than 800 square feet may be expanded to 800 square feet after or as part of the two-unit project. (C) Height Restrictions. (i) On a lot that is larger than 2,000 square feet, no new primary dwelling unit may exceed a single story or 16 feet in height, measured from grade to peak of the structure. (ii) On a lot that is smaller than 2,000 square feet, no new primary dwelling unit may exceed two stories or 22 feet in height, measured from grade to peak of the structure. Any portion of a new primary dwelling that exceeds one story must be stepped back by an additional five feet from the ground floor; no balcony deck or other portion of the second story may project into the stepback. (iii) No rooftop deck is permitted on any new or remodeled dwelling or structure on a lot with a two-unit project. (D) Demo Cap. The two-unit project may not involve the demolition of more than 25 percent of the existing exterior walls of an existing dwelling unless the site has not been occupied by a tenant in the last three years. (E) Lot Coverage. All structures as defined in Section 17.16.070 on a lot shall not cover more than twenty percent of the net lot area. All structures and all other impervious surfaces as defined in Section 17.16.070 on a lot shall not cover more than thirty-five percent of the net lot area. This lot coverage standard is only enforced to the extent that it does not prevent two primary dwelling units on the lot at 800 square feet each. (F) Open Space. No development pursuant to this Chapter may cause the total percentage of open space of the lot fall below fifty percent. This open 354 93939.00053\34475756.3 space standard is only enforced to the extent that it does not prevent two primary dwelling units on the lot at 800 square feet each. (G) Setbacks. (i) Generally. All setbacks must conform to those objective setbacks that are imposed through the underlying zone. (ii) Exceptions. Notwithstanding subpart (a)(6)(G) above: (I) Existing Structures. No setback is required for an existing legally established structure or for a new structure that is constructed in the same location and to the same dimensions as an existing legally established structure. (II) 800 sf; four-foot side and rear. The setbacks imposed by the underlying zone must yield to the degree necessary to avoid physically precluding the construction of up to two units on the lot or either of the two units from being at least 800 square feet in floor area; but in no event may any structure be less than four feet from a side or rear property line. (iii) Front Setback Area. Notwithstanding any other part of this code, dwellings that are constructed under this section must be at least 30 feet from the front property lines. The front setback area must: (I) be kept free from all structures greater than three feet high; (II) be at least 50 percent landscaped with drought-tolerant plants, with vegetation and irrigation plans approved by a licensed landscape architect; (III) allow for vehicular and fire-safety access to the front structure. (H) Parking. Each new primary dwelling unit must have at least one off-street parking space per unit unless one of the following applies: (i) The lot is located within one-half mile walking distance of either (I) a corridor with fixed route bus service with service intervals no longer than 15 minutes during peak commute hours or (II) a site that contains (ia) an existing rail or bus rapid transit station, 355 93939.00053\34475756.3 (ib) a ferry terminal served by either a bus or rail transit service, or (ic) the intersection of two or more major bus routes with a frequency of service interval of 15 minutes or less during the morning and afternoon peak commute periods. (ii) The site is located within one block of a car-share vehicle location. (I) Architecture. (i) Architecture is limited to white California ranch style homes with three-rail fences. (ii) If there is a legal primary dwelling on the lot that was established before the two-unit project, any new primary dwelling unit must match the existing primary dwelling unit in exterior materials, color, and dominant roof pitch. The dominant roof slope is the slope shared by the largest portion of the roof. (iii) If there is no legal primary dwelling on the lot before the two-unit project, and if two primary dwellings are developed on the lot, the dwellings must match each other in exterior materials, color, and dominant roof pitch. The dominant roof slope is the slope shared by the largest portion of the roof. (iv) All exterior lighting must be limited to down-lights. (v) No window or door of a dwelling that is constructed on the lot may have a direct line of sight to an adjoining residential property. Fencing, landscaping, or privacy glass may be used to provide screening and prevent a direct line of sight. (vi) If any portion of a dwelling is less than 30 feet from a property line that is not a public right-of-way line, then all windows and doors in that portion must either be (for windows) clerestory with the bottom of the glass at least six feet above the finished floor, or (for windows and for doors) utilize frosted or obscure glass. (J) Landscaping. Evergreen landscape screening must be planted and maintained between each dwelling and adjacent lots (but not rights of way) as follows: (i) At least one 15-gallon size plant shall be provided for every five linear feet of exterior wall. Alternatively, at least one 24” box size plant shall be provided for every ten linear feet of exterior wall. 356 93939.00053\34475756.3 (ii) Plant specimens must be at least eight feet tall when installed. As an alternative, a solid fence of at least eight feet in height may be installed. (iii) All landscaping must be drought-tolerant. (iv) All landscaping must be from the city’s approved plant list. (K) Nonconforming Conditions. A two-unit project may only be approved if all nonconforming zoning conditions are corrected. (L) Utilities. (i) Each primary dwelling unit on the lot must have its own direct utility connection to the utility service provider. (ii) Each primary dwelling unit on the lot that is or that is proposed to be connected to an onsite wastewater treatment system must first have a percolation test completed within the last five years or, if the percolation test has been recertified, within the last 10 years. (M) Building & Safety. All structures built on the lot must comply with all current local building standards. A project under this section is a change of use and subjects the whole of the lot, and all structures, to the city’s current code. (7) Fire-Hazard Mitigation Measures. A lot in a very high fire hazard severity zone must comply with each of the following fire-hazard mitigation measures: (A) It must have direct access to a public right of way with a paved street with a width of at least 40 feet. The public right of way must have at least two independent points of access for fire and life safety to access and for residents to evacuate. (B) All dwellings on the site must comply with current fire code requirements for dwellings in a very high fire hazard severity zone. (C) All enclosed structures on the site must have fire sprinklers. (D) All sides of all dwellings on the site must be within a 150-foot hose-pull distance from either the public right of way or of an onsite fire hydrant or standpipe. (E) If the lot does not have a swimming pool, the lot must have a water reservoir of at least 5,000 gallons per dwelling, with fire-authority approved hookups compatible with fire-authority standard pump and hose equipment. 357 93939.00053\34475756.3 (8) Separate Conveyance. (A) Primary dwelling units on the lot may not be owned or conveyed separately from each other. (B) Condominium airspace divisions and common interest developments are not permitted within the lot. (C) All fee interest in the lot and all the dwellings must be held equally and undivided by all individual property owners. (9) Regulation of Uses. (A) Residential-only. No non-residential use is permitted on the lot. (B) No STRs. No dwelling unit on the lot may be rented for a period of less than 30 days. (C) Owner Occupancy. Unless the lot was formed by an urban lot split, the individual property owners of a lot with a two-unit project must occupy one of the dwellings on the lot as the owners’ principal residence and legal domicile. (10) Notice of Construction. (A) At least 30 business days before starting any construction of a two-unit project, the property owner must give written notice to all the owners of record of each of the adjacent residential parcels, which notice must include the following information: (i) Notice that construction has been authorized, (ii) The anticipated start and end dates for construction, (iii) The hours of construction, (iv) Contact information for the project manager (for construction- related complaints), and (v) Contact information for the Building & Safety Department. (B) This notice requirement does not confer a right on the noticed persons or on anyone else to comment on the project before permits are issued. Approval is ministerial. Under state law, the City has no discretion in approving or denying a particular project under this section. This notice requirement is purely to promote neighborhood awareness and expectation. 358 93939.00053\34475756.3 (11) Deed Restriction. The owner must record a deed restriction, acceptable to the city, that does each of the following: (A) Expressly prohibits any rental of any dwelling on the property for a period of less than 30 days. (B) Expressly prohibits any non-residential use of the lot. (C) Expressly prohibits any separate conveyance of a primary dwelling on the property, any separate fee interest, and any common interest development within the lot. (D) If the lot is not created by an urban lot split: Expressly requires the individual property owners to live in one of the dwelling units on the lot as the owners’ primary residence and legal domicile. (E) States that the property is formed by an urban lot split and is therefore subject to the city’s urban lot split regulations, including all applicable limits on dwelling size and development. (b) Specific Adverse Impacts. (1) Notwithstanding anything else in this section, the city may deny an application for a two-unit project if the building official makes a written finding, based on a preponderance of the evidence, that the project would have a “specific, adverse impact” on either public health and safety or on the physical environment and for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact. (2) “Specific adverse impact” has the same meaning as in Gov. Code § 65589.5(d)(2): “a significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete” and does not include (1) inconsistency with the zoning ordinance or general plan land use designation or (2) the eligibility to claim a welfare exemption under Revenue and Taxation Code section 214(g). (3) The building official may consult with and be assisted by planning staff and others as necessary in making a finding of specific, adverse impact. (c) Remedies. If a two-unit project violates any part of this code or any other legal requirement: (1) The buyer, grantee, or lessee of any part of the property has an action for damages or to void the deed, sale, or contract. (2) The city may: 359 93939.00053\34475756.3 (A) Bring an action to enjoin any attempt to sell, lease, or finance the property. (B) Bring an action for other legal, equitable, or summary remedy, such as declaratory and injunctive relief. (C) Pursue criminal prosecution, punishable by imprisonment in county jail or state prison for up to one year, by a fine of up to $10,000, or both; or a misdemeanor. (D) Record a notice of violation. (E) Withhold any or all future permits and approvals. (F) Pursue all other administrative, legal, or equitable remedies that are allowed by law or the city’s code. 360 Agenda Item No.: 8.A Mtg. Date: 11/08/2021 TO:HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM:ELAINE JENG, CITY MANAGER THRU:ELAINE JENG P.E., CITY MANAGER SUBJECT:CONSIDER PROPOSAL FROM THE TENNIS CLUB TO EXPAND COURT 1 FOR ADDITIONAL PICKLE BALL COURTS. DATE:November 08, 2021 BACKGROUND: The Rolling Hills Tennis Club reported that pickleball has been very popular at the City's tennis courts. There are three courts; Court 1 does not have lights for night time play while Courts 2 and 3, located side by side do have lights. The City upgraded the lighting to LED in 2019. Improvements planned at the tennis courts are comprised of the City's ADA improvements, the Rolling Hills Community Association (RHCA) amenities project and resurfacing of Court 1. The City's ADA improvements include brining up the walkways to each of the courts to be compliant with accessibility requirements. The RHCA's amenities project include the installation of a kitchen, and a restroom in the area between Courts 1 and Court 2. DISCUSSION: A board member of the Rolling Hills Tennis Club, Alan Cherry requested a meeting on October 26, 2021 with staff to discuss the pending improvements at the tennis courts and suggested expansion of Court 1 to allow for more pickleball play. Mr. Cherry reported that in order to play pickleball on Court 1, players need to retrieve the netting from storage and hang the net, as the pickleball courts are striped on a court dedicated for tennis play. By converting Court 1 to pickleball only, the netting can be set up permanently without players having to retrieve netting and or risk accidents from players having to set up the pickleball courts. Additionally, Mr. Cherry reported that in light of the pending improvements by the City and the RHCA, it seemed to be the proper time to discuss expansion to Court 1. In response to Mr. Cherry's request, RHCA Manager Kristen Raig and staff reviewed the site plan to Court 1 and discussed that a professional designer will need to assist in laying out the pickleball courts at Court 1 to determine the limits of the expansion. Mr. Cherry reported that there are three pickleball courts striped on Court 1, and the expansion is to add an additional pickleball court on Court 1. FISCAL IMPACT: Staff will need to solicit pricing information if the City Council approves the expansion of Court 1 to 361 add additional pickleball courts. RECOMMENDATION: Review, consider and provide direction to staff. ATTACHMENTS: 2 Portuguese Bend Rd - Google Maps.pdf L-1 051917.pdf Screen-Shot-2018-09-10-at-12.12.29-PM.png 362 11/5/21, 6:48 AM 2 Portuguese Bend Rd - Google Maps https://www.google.com/maps/place/2+Portuguese+Bend+Rd,+Rolling+Hills,+CA+90274/@33.7757787,-118.3446451,86m/data=!3m1!1e3!4m13!1m7!3m6!1s0x80dd4a2c0cb27a2d:0xb22a51cfd67446…1/2 Map data ©2021 , Map data ©2021 20 ft 2 Portuguese Bend Rd Court 1 363 PA ASPH485.3 (EX) 485.4 (EX) 488.6 (EX) 489.5 (EX) 489.7 (EX) 496.7 (EX) 495.0 (EX) 493.5 (EX) 485.2 (EX) 493.2 (EX) 489.1 (EX) 488.7 (EX) 485.2 (EX)500S 66°49'30" E167.95'N 25°29'55" E 333.74' TENNIS COURT TENNIS COURT 485.3 (EX) 485.4 (EX) 485.6 (EX) 490.5 (EX) 488.3 (EX) 490.6 (EX) 488.7 (EX) 486.6 (EX) TENNIS COURT 489.8 (EX) 493.5 (EX) 494.4 (EX) 497.3 (EX) 497.7 (EX) 498.6 (EX) AC B E R M CONC CURB N 25°29'55" E 282.16' PREVIOUS AERIAL TOPO, NOT FIELD CHECKED PREVIOUS AERIAL TOPO, NOT FIELD CHECKED PORTION OF LOT 25 ROLLING HILLS TRACT M.B. 201, PGS 29-35 M.B. 201, PGS 29-35 25'SIDEYARDSETBACK50' REARYARD SETBACK 25'SIDEYARDSETBACK25'4 8 5 490495490 485 495 FS488.9 FS488.6 FS485.2 FS486.0 ADA 4% BS485.4 <1% FS486.7 ADA 4.8% ADA 5% FG485.4 TW488.2 BW487.7 TW488.7 BW487.7 FS491.2 FS490.6 TC493.8 BC493.3 ADA 5% TS488.9 TS486.5 PA ADA 5% ADA 8.33% FS492.0 486.4 FS486.7 FS487.45 PA 491492493FS492.1 FS491.3 ADA 8.33% ADA 8.33% FS489.0 TC493.5 BC493.0 FG492.6 PA PA TW491.0 BW489.0 TW488.2 BW486.5 TW489.1 BW488.6 TW487.2 BW486.7 4 9 0 4 8 9 4 8 8 4 8 7 PA DG ADA 4.8%PAPAPA PA PA 4 8 6 FS489.1 FS486.2 486.1486.1 HANDICAP PARKING AREA BS486.2TS488.2 FG485.6 TW488.2 DG 5' WHEEL CHAIR MANEUVERING SPACE 60" TS491.2 BS490.2 TS490.2 BS489.2 TW486.9 BW485.4 TW489.4 BW488.9 FG485.6 TW491.0 BW489.0 TW489.1 BW488.6 TW489.1 BW487.7 TW488.2 BW487.7 TW489.7 BW488.2 TW487.7 BW486.2 TW492.5 BW489.0 FG487.5 TW489.2 BW488.7 TW490.6 BW488.7 TW489.7 BW488.2 TW487.7 BW486.2 TW488.2 BW486.5 TC486.5 TW490.4 BW488.9 BS485.5TW487.6 ADA 5% PA TW493.5 FG490.0 TW491.0 BW490.0 PA PA PA PA TW490.0 5'TW488.0 BW486.0 TW489.7 BW488.7 FS488.7 PA TW489.7 BW488.7 TW490.7 BW488.8 PA TW486.9 BW485.4 TW489.4 BW487.9 TW488.5 TW488.7TW489.7 TW488.7 TW490.7 BW488.8 TW488.5 FG485.5 FG488.0 ROLLING HILLS COMMUNITY TENNIS COURTS PROJECT TITLE SHEET TITLE CHECKED: DRAWN BY: DATE: REVISIONS PROJECT NO. SHEET N0. XREF FILE: SCALE: E-mail: rbadmin@richie-bray.com 2432 Via Amador, Palos Verdes Estates, CA 90274 FAX : (310) 377-3484 (310) 377-5868 Richie-Bray, Inc. LANDSCAPE ARCHITECTURE HARDSCAPE & MATERIAL PLAN L-1 8-10-2015 1/8" = 1'-0" 9-23-2015 RELOCATED GENERATOR SHUT OFF RELOCATED IRRIGATION CONTROLLER EX. UTILITY CABINET ON CONC. BASE 30" MANHOLE MED ALERT 4" CLEAN-OUT ADA HANDRAIL BOTH SIDE OF RAMPPROPOSED/NEW WALL & DOOR 5'5'-8" 5'-3" 5' - 6 " 4'5'-4"12-07-2015 SLOPED WALL ENTRY TRELLIS ADA PARKING LA COUNTY CODE STANDARD SEE SHEET LD-2 & LD-3 ADA HANDRAIL BOTH SIDE OF RAMP SIGNBOARD W/ LIGHTS 6" CURB 12-09-2015 1-05-2016 PROVIDE CONCRETE PAD W/ ELECTRICAL, GAS AND H2O 1-13-2016 3'-6" RAMP, COLORED CONC. 5'-4"'W STAIR W/ ADA LIGHTS TO STAIR WALL NOTES: -ADA TO MEET ALL LA COUNTY CODE AND STANDARDS -SEE ARCHITECT'S PLANS FOR CABANA & TRELLIS, SECURITY BUILDING ADA RESTROOM ADDITION, STORAGE SHED. 1-21-2016 0 5 15 30 FEET 3-21-2016 5-16-2016 FIREPIT, 4'-2" DIA. 6"H WALL W/ 12"W STONE CAP 12"H WALL W/ 12" STONE CAP 3'-8" WALKWAY, COLORED CONC. RAMP, COLORED CONC. 5-24-2016 FLAGSTONE 3'-2" 6'-6"L-3 B 6-14-2016 COLORED CONC. W/ PATTERN COLUMN W/ STONE VENEER HEATER TRELLIS CABANA ROOF LINE 26"H COLUMN W/ CAP & LIGHT 4'W RAMP, COLORED CONC. 18"H WALL W/ 12" STONE CAP FLAGSTONE STAIR HANDRAIL 1 PORTUGUESE BEND ROAD ROLLING HILLS, CA 90274 6-17-2016 EX DRINKING FOUNTAIN TO BE REMOVED 7-06-2016 STORAGE 26"H COLUMN W/ CAP & LIGHT 18"H WALL W/ 12"W STONE CAP 4'4' 5'-0"4'TENNIS COURT SEATING EX TENNIS COURTS EX TENNIS COURTS NATIVE LAWN AREA ENTRY PATIO 6" CURB 11-8-2016 STAIR HANDRAIL TACK TILE WARNING 6" CURB BOTH SIDE 6" CURB BOTHSIDE REMOVE STONE PLAQUE WALL 3'-0"3'-8 1/2"13'-9"4'-8"11'-8"3'-6"11'-3 1/2"4'R25'-2" 4' 1 0 ' - 9 1 / 2 "3'-3"6" GRATE 11-11-2016 STORM DRAIN4'5'-6"14'-4"4'-7"4'-4" 1-18-20175'-4"9'-2" 2'-2"24'-9" PEA GRAVEL 5'H STUCCO WALL 1-24-2017 3 ' - 1 1 " 4'-2"7'-0"6'-2" 5'4'4'-0"4'-4" 4-13-201713'-8"3'-3"1'-2"16' X 5'-8" STORAGE SHED 5-17-2017 364 365 Agenda Item No.: 8.B Mtg. Date: 11/08/2021 TO:HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM:ELAINE JENG, CITY MANAGER THRU:ELAINE JENG P.E., CITY MANAGER SUBJECT:DISCUSS THE FORMAT OF THE CITY COUNCIL MEETING MINUTES AND PROVIDE DIRECTION TO STAFF. DATE:November 08, 2021 BACKGROUND: At the September 14, 2020 City Council meeting, staff was directed by Council to prepare action minutes for City Council meetings. Action minutes would only capture the City Council's motions and the vote on the motions. At the September 2020 meeting, as part of the City Council's action, public comments shall be captured with the name of the commenter and the commenter's position on the issue. DISCUSSION: Since September 2021, staff has been preparing action minutes to City Council meetings listing commenters and the commenter's position on the issue. Subsequent to City Council's action in September 2021, frequently Mayor Dieringer would have comments and or edits on the meeting minutes aimed to include more information beyond the City Council's direction from August 2021. At the October 25, 2021 City Council meeting, Mayor Dieringer requested changes to the October 11, 2021 City Council meeting minutes, specifically on comments made by commenters on the item relating to the Fire Fuel Committee's report out. Mayor Dieringer's proposed changes were reviewed with the City Council and the feedback from the Council was that Mayor Dieringer's proposed changes may be only capturing one aspect of the commenters' comments. Mayor Dieringer's proposed changes to the October 11, 2021 meeting minutes were not approved by the City Council. The City Council then directed staff to place on the agenda for the November 8, 2021 meeting to revisit the previously approved format for City Council meeting minutes. FISCAL IMPACT: There is no fiscal impact to discuss the format of the meeting minutes. RECOMMENDATION: Discuss and provide direction to staff. 366 ATTACHMENTS: 367 Agenda Item No.: 8.C Mtg. Date: 11/08/2021 TO:HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM:ELAINE JENG, CITY MANAGER THRU:ELAINE JENG P.E., CITY MANAGER SUBJECT:CONSIDER HOLDING CITY COUNCIL 2022 STRATEGIC PLANNING WORKSHOP ON SATURDAY, JANUARY 22, 2021 AND APPROVE DRAFT AGENDA. DATE:November 08, 2021 BACKGROUND: The City Council held a strategic planning workshop on January 25, 2020. The objective of the 2020 workshop was to establish a minimum of one priority and a maximum of three priorities agreeable among the City Council as the City's workplan for Fiscal Year 2020-2021 and 2021-2022. Prior to the workshop, Councilmembers submitted individual priorities and comparing the lists, the following were common priorities among the members: Wildfire Mitigation/Emergency Preparedness Sewer Utility Undergrounding Drainage These priorities were further discussed at the 2020 strategic workshop and Council developed the following directions to staff: Allocate funding for fire breaks on City's side (adjacent to Conservancy); allocate funding for work in the Preserve; enforcement action relating to emergency preparedness including enforcement actions against the Rolling Hills Community Association if necessary. The City Council also directed staff to implement via a combination of grant projects and individual assessment projects to underground utility infrastructure. Implement policy change on private properties to address drainage issues and identify capital improvement projects on city owned properties to address drainage issues Implement sewer mains via small segment of projects if cost is manageable. At the Fiscal Year 2020-2021 budget planning process, the City Council approved a three-year Capital Improvement Program 2020-2021 to 2022-2023. Since the initiation of the the Capital Improvement Program, the program gets updated annually during budget planning for the following fiscal year. 368 DISCUSSION: At the October 25, 2021 City Council meeting, Councilmember Leah Mirsch expressed interest for the City Council to hold another strategic planning workshop to focus on prioritizing the projects listed in the Capital Improvement Program for Fiscal Year 2021-2022. Staff recommends holding the 2022 Strategic Planning Workshop on Saturday, January 22, 2021 between 8:30am and 1:30pm at City Hall. Staff also recommends that City Council consider the following draft agenda for the strategic planning workshop: 1. Review priorities established by the City Council at the 2020 Strategic Planning Workshop; 2. Evaluate City actions and activities toward the City Council's priorities; 3. Review the Capital Improvement Plan approved as a part of the Fiscal Year 2021-2022 budget adoption; 4. Establish priority projects for Fiscal year 2021-2022 consider funding allocation for priority projects; 5. Discuss non-capital improvement priorities for the next two fiscal years FISCAL IMPACT: There is no fiscal impact to holding a City Council strategic planning workshop as staff will be leading the discussion with members of the Council. RECOMMENDATION: Approve as presented. ATTACHMENTS: 369 Agenda Item No.: 9.A Mtg. Date: 11/08/2021 TO:HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM:ELAINE JENG, CITY MANAGER THRU:ELAINE JENG P.E., CITY MANAGER SUBJECT:CITY COUNCIL PERSONNEL COMMITTEE REPORT ON THE NOVEMBER 8, 2021 COMMITTEE MEETING. DATE:November 08, 2021 BACKGROUND: The City Council Personnel Committee for FY 2021-2022 is comprised of Mayor Bea Dieringer and Councilmember Jeff Pieper. The Personnel Committee is responsible for making recommendations to the City Council on commission appointments. There are two seats on the Planning Commission for appointment for a four year term starting January 2022. DISCUSSION: The City Council is scheduled to make appointments to the Planning Commission at the November 22, 2021 City Council meeting. To meet this schedule, the Personnel Committee must review applications and if desired, conduct interviews with applicants to develop recommendations for the City Council by November 22, 2021. The Personnel Committee will be discussing the logistics to the application review, interviews and the committee's recommendation at the November 8, 2021, 6:30pm meeting. FISCAL IMPACT: None. RECOMMENDATION: Receive and file a report by the Personnel Committee on the November 8, 2021 meeting. ATTACHMENTS: 370 Agenda Item No.: 11.A Mtg. Date: 11/08/2021 TO:HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM:ELAINE JENG, CITY MANAGER THRU:ELAINE JENG P.E., CITY MANAGER SUBJECT:EMPLOYEE PERFORMANCE EVALUATION GOVERNMENT CODE SECTION 54957, TITLE CITY MANAGER. DATE:November 08, 2021 BACKGROUND: None. DISCUSSION: None. FISCAL IMPACT: None. RECOMMENDATION: None. ATTACHMENTS: 371 Senate Bill No. 9 CHAPTER 162 An act to amend Section 66452.6 of, and to add Sections 65852.21 and 66411.7 to, the Government Code, relating to land use. [Approved by Governor September 16, 2021. Filed with Secretary of State September 16, 2021.] legislative counsel’s digest SB 9, Atkins. Housing development: approvals. The Planning and Zoning Law provides for the creation of accessory dwelling units by local ordinance, or, if a local agency has not adopted an ordinance, by ministerial approval, in accordance with specified standards and conditions. This bill, among other things, would require a proposed housing development containing no more than 2 residential units within a single-family residential zone to be considered ministerially, without discretionary review or hearing, if the proposed housing development meets certain requirements, including, but not limited to, that the proposed housing development would not require demolition or alteration of housing that is subject to a recorded covenant, ordinance, or law that restricts rents to levels affordable to persons and families of moderate, low, or very low income, that the proposed housing development does not allow for the demolition of more than 25% of the existing exterior structural walls, except as provided, and that the development is not located within a historic district, is not included on the State Historic Resources Inventory, or is not within a site that is legally designated or listed as a city or county landmark or historic property or district. The bill would set forth what a local agency can and cannot require in approving the construction of 2 residential units, including, but not limited to, authorizing a local agency to impose objective zoning standards, objective subdivision standards, and objective design standards, as defined, unless those standards would have the effect of physically precluding the construction of up to 2 units or physically precluding either of the 2 units from being at least 800 square feet in floor area, prohibiting the imposition of setback requirements under certain circumstances, and setting maximum setback requirements under all other circumstances. The Subdivision Map Act vests the authority to regulate and control the design and improvement of subdivisions in the legislative body of a local agency and sets forth procedures governing the local agency’s processing, approval, conditional approval or disapproval, and filing of tentative, final, and parcel maps, and the modification of those maps. Under the Subdivision Map Act, an approved or conditionally approved tentative map expires 24 94 328372 months after its approval or conditional approval or after any additional period of time as prescribed by local ordinance, not to exceed an additional 12 months, except as provided. This bill, among other things, would require a local agency to ministerially approve a parcel map for an urban lot split that meets certain requirements, including, but not limited to, that the urban lot split would not require the demolition or alteration of housing that is subject to a recorded covenant, ordinance, or law that restricts rents to levels affordable to persons and families of moderate, low, or very low income, that the parcel is located within a single-family residential zone, and that the parcel is not located within a historic district, is not included on the State Historic Resources Inventory, or is not within a site that is legally designated or listed as a city or county landmark or historic property or district. The bill would set forth what a local agency can and cannot require in approving an urban lot split, including, but not limited to, authorizing a local agency to impose objective zoning standards, objective subdivision standards, and objective design standards, as defined, unless those standards would have the effect of physically precluding the construction of 2 units, as defined, on either of the resulting parcels or physically precluding either of the 2 units from being at least 800 square feet in floor area, prohibiting the imposition of setback requirements under certain circumstances, and setting maximum setback requirements under all other circumstances. The bill would require an applicant to sign an affidavit stating that they intend to occupy one of the housing units as their principal residence for a minimum of 3 years from the date of the approval of the urban lot split, unless the applicant is a community land trust or a qualified nonprofit corporation, as specified. The bill would prohibit a local agency from imposing any additional owner occupancy standards on applicants. By requiring applicants to sign affidavits, thereby expanding the crime of perjury, the bill would impose a state-mandated local program. The bill would also extend the limit on the additional period that may be provided by ordinance, as described above, from 12 months to 24 months and would make other conforming or nonsubstantive changes. The California Environmental Quality Act (CEQA) requires a lead agency, as defined, to prepare, or cause to be prepared, and certify the completion of, an environmental impact report on a project that it proposes to carry out or approve that may have a significant effect on the environment. CEQA does not apply to the approval of ministerial projects. This bill, by establishing the ministerial review processes described above, would thereby exempt the approval of projects subject to those processes from CEQA. The California Coastal Act of 1976 provides for the planning and regulation of development, under a coastal development permit process, within the coastal zone, as defined, that shall be based on various coastal resources planning and management policies set forth in the act. 94 — 2 — Ch. 162 329373 This bill would exempt a local agency from being required to hold public hearings for coastal development permit applications for housing developments and urban lot splits pursuant to the above provisions. By increasing the duties of local agencies with respect to land use regulations, the bill would impose a state-mandated local program. The bill would include findings that changes proposed by this bill address a matter of statewide concern rather than a municipal affair and, therefore, apply to all cities, including charter cities. The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that no reimbursement is required by this act for specified reasons. The people of the State of California do enact as follows: SECTION 1. Section 65852.21 is added to the Government Code, to read: 65852.21. (a) A proposed housing development containing no more than two residential units within a single-family residential zone shall be considered ministerially, without discretionary review or a hearing, if the proposed housing development meets all of the following requirements: (1) The parcel subject to the proposed housing development is located within a city, the boundaries of which include some portion of either an urbanized area or urban cluster, as designated by the United States Census Bureau, or, for unincorporated areas, a legal parcel wholly within the boundaries of an urbanized area or urban cluster, as designated by the United States Census Bureau. (2) The parcel satisfies the requirements specified in subparagraphs (B) to (K), inclusive, of paragraph (6) of subdivision (a) of Section 65913.4. (3) Notwithstanding any provision of this section or any local law, the proposed housing development would not require demolition or alteration of any of the following types of housing: (A) Housing that is subject to a recorded covenant, ordinance, or law that restricts rents to levels affordable to persons and families of moderate, low, or very low income. (B) Housing that is subject to any form of rent or price control through a public entity’s valid exercise of its police power. (C) Housing that has been occupied by a tenant in the last three years. (4) The parcel subject to the proposed housing development is not a parcel on which an owner of residential real property has exercised the owner’s rights under Chapter 12.75 (commencing with Section 7060) of Division 7 of Title 1 to withdraw accommodations from rent or lease within 15 years before the date that the development proponent submits an application. 94 Ch. 162 — 3 — 330374 (5) The proposed housing development does not allow the demolition of more than 25 percent of the existing exterior structural walls, unless the housing development meets at least one of the following conditions: (A) If a local ordinance so allows. (B) The site has not been occupied by a tenant in the last three years. (6) The development is not located within a historic district or property included on the State Historic Resources Inventory, as defined in Section 5020.1 of the Public Resources Code, or within a site that is designated or listed as a city or county landmark or historic property or district pursuant to a city or county ordinance. (b) (1) Notwithstanding any local law and except as provided in paragraph (2), a local agency may impose objective zoning standards, objective subdivision standards, and objective design review standards that do not conflict with this section. (2) (A) The local agency shall not impose objective zoning standards, objective subdivision standards, and objective design standards that would have the effect of physically precluding the construction of up to two units or that would physically preclude either of the two units from being at least 800 square feet in floor area. (B) (i) Notwithstanding subparagraph (A), no setback shall be required for an existing structure or a structure constructed in the same location and to the same dimensions as an existing structure. (ii) Notwithstanding subparagraph (A), in all other circumstances not described in clause (i), a local agency may require a setback of up to four feet from the side and rear lot lines. (c) In addition to any conditions established in accordance with subdivision (b), a local agency may require any of the following conditions when considering an application for two residential units as provided for in this section: (1) Off-street parking of up to one space per unit, except that a local agency shall not impose parking requirements in either of the following instances: (A) The parcel is located within one-half mile walking distance of either a high-quality transit corridor, as defined in subdivision (b) of Section 21155 of the Public Resources Code, or a major transit stop, as defined in Section 21064.3 of the Public Resources Code. (B) There is a car share vehicle located within one block of the parcel. (2) For residential units connected to an onsite wastewater treatment system, a percolation test completed within the last 5 years, or, if the percolation test has been recertified, within the last 10 years. (d) Notwithstanding subdivision (a), a local agency may deny a proposed housing development project if the building official makes a written finding, based upon a preponderance of the evidence, that the proposed housing development project would have a specific, adverse impact, as defined and determined in paragraph (2) of subdivision (d) of Section 65589.5, upon public health and safety or the physical environment and for which there is 94 — 4 — Ch. 162 331375 no feasible method to satisfactorily mitigate or avoid the specific, adverse impact. (e) A local agency shall require that a rental of any unit created pursuant to this section be for a term longer than 30 days. (f) Notwithstanding Section 65852.2 or 65852.22, a local agency shall not be required to permit an accessory dwelling unit or a junior accessory dwelling unit on parcels that use both the authority contained within this section and the authority contained in Section 66411.7. (g) Notwithstanding subparagraph (B) of paragraph (2) of subdivision (b), an application shall not be rejected solely because it proposes adjacent or connected structures provided that the structures meet building code safety standards and are sufficient to allow separate conveyance. (h) Local agencies shall include units constructed pursuant to this section in the annual housing element report as required by subparagraph (I) of paragraph (2) of subdivision (a) of Section 65400. (i) For purposes of this section, all of the following apply: (1) A housing development contains two residential units if the development proposes no more than two new units or if it proposes to add one new unit to one existing unit. (2) The terms “objective zoning standards,” “objective subdivision standards,” and “objective design review standards” mean standards that involve no personal or subjective judgment by a public official and are uniformly verifiable by reference to an external and uniform benchmark or criterion available and knowable by both the development applicant or proponent and the public official prior to submittal. These standards may be embodied in alternative objective land use specifications adopted by a local agency, and may include, but are not limited to, housing overlay zones, specific plans, inclusionary zoning ordinances, and density bonus ordinances. (3) “Local agency” means a city, county, or city and county, whether general law or chartered. (j) A local agency may adopt an ordinance to implement the provisions of this section. An ordinance adopted to implement this section shall not be considered a project under Division 13 (commencing with Section 21000) of the Public Resources Code. (k) Nothing in this section shall be construed to supersede or in any way alter or lessen the effect or application of the California Coastal Act of 1976 (Division 20 (commencing with Section 30000) of the Public Resources Code), except that the local agency shall not be required to hold public hearings for coastal development permit applications for a housing development pursuant to this section. SEC. 2. Section 66411.7 is added to the Government Code, to read: 66411.7. (a) Notwithstanding any other provision of this division and any local law, a local agency shall ministerially approve, as set forth in this section, a parcel map for an urban lot split only if the local agency determines that the parcel map for the urban lot split meets all the following requirements: 94 Ch. 162 — 5 — 332376 (1) The parcel map subdivides an existing parcel to create no more than two new parcels of approximately equal lot area provided that one parcel shall not be smaller than 40 percent of the lot area of the original parcel proposed for subdivision. (2) (A) Except as provided in subparagraph (B), both newly created parcels are no smaller than 1,200 square feet. (B) A local agency may by ordinance adopt a smaller minimum lot size subject to ministerial approval under this subdivision. (3) The parcel being subdivided meets all the following requirements: (A) The parcel is located within a single-family residential zone. (B) The parcel subject to the proposed urban lot split is located within a city, the boundaries of which include some portion of either an urbanized area or urban cluster, as designated by the United States Census Bureau, or, for unincorporated areas, a legal parcel wholly within the boundaries of an urbanized area or urban cluster, as designated by the United States Census Bureau. (C) The parcel satisfies the requirements specified in subparagraphs (B) to (K), inclusive, of paragraph (6) of subdivision (a) of Section 65913.4. (D) The proposed urban lot split would not require demolition or alteration of any of the following types of housing: (i) Housing that is subject to a recorded covenant, ordinance, or law that restricts rents to levels affordable to persons and families of moderate, low, or very low income. (ii) Housing that is subject to any form of rent or price control through a public entity’s valid exercise of its police power. (iii) A parcel or parcels on which an owner of residential real property has exercised the owner’s rights under Chapter 12.75 (commencing with Section 7060) of Division 7 of Title 1 to withdraw accommodations from rent or lease within 15 years before the date that the development proponent submits an application. (iv) Housing that has been occupied by a tenant in the last three years. (E) The parcel is not located within a historic district or property included on the State Historic Resources Inventory, as defined in Section 5020.1 of the Public Resources Code, or within a site that is designated or listed as a city or county landmark or historic property or district pursuant to a city or county ordinance. (F) The parcel has not been established through prior exercise of an urban lot split as provided for in this section. (G) Neither the owner of the parcel being subdivided nor any person acting in concert with the owner has previously subdivided an adjacent parcel using an urban lot split as provided for in this section. (b) An application for a parcel map for an urban lot split shall be approved in accordance with the following requirements: (1) A local agency shall approve or deny an application for a parcel map for an urban lot split ministerially without discretionary review. (2) A local agency shall approve an urban lot split only if it conforms to all applicable objective requirements of the Subdivision Map Act (Division 94 — 6 — Ch. 162 333377 2 (commencing with Section 66410)), except as otherwise expressly provided in this section. (3) Notwithstanding Section 66411.1, a local agency shall not impose regulations that require dedications of rights-of-way or the construction of offsite improvements for the parcels being created as a condition of issuing a parcel map for an urban lot split pursuant to this section. (c) (1) Except as provided in paragraph (2), notwithstanding any local law, a local agency may impose objective zoning standards, objective subdivision standards, and objective design review standards applicable to a parcel created by an urban lot split that do not conflict with this section. (2) A local agency shall not impose objective zoning standards, objective subdivision standards, and objective design review standards that would have the effect of physically precluding the construction of two units on either of the resulting parcels or that would result in a unit size of less than 800 square feet. (3) (A) Notwithstanding paragraph (2), no setback shall be required for an existing structure or a structure constructed in the same location and to the same dimensions as an existing structure. (B) Notwithstanding paragraph (2), in all other circumstances not described in subparagraph (A), a local agency may require a setback of up to four feet from the side and rear lot lines. (d) Notwithstanding subdivision (a), a local agency may deny an urban lot split if the building official makes a written finding, based upon a preponderance of the evidence, that the proposed housing development project would have a specific, adverse impact, as defined and determined in paragraph (2) of subdivision (d) of Section 65589.5, upon public health and safety or the physical environment and for which there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact. (e) In addition to any conditions established in accordance with this section, a local agency may require any of the following conditions when considering an application for a parcel map for an urban lot split: (1) Easements required for the provision of public services and facilities. (2) A requirement that the parcels have access to, provide access to, or adjoin the public right-of-way. (3) Off-street parking of up to one space per unit, except that a local agency shall not impose parking requirements in either of the following instances: (A) The parcel is located within one-half mile walking distance of either a high-quality transit corridor as defined in subdivision (b) of Section 21155 of the Public Resources Code, or a major transit stop as defined in Section 21064.3 of the Public Resources Code. (B) There is a car share vehicle located within one block of the parcel. (f) A local agency shall require that the uses allowed on a lot created by this section be limited to residential uses. (g) (1) A local agency shall require an applicant for an urban lot split to sign an affidavit stating that the applicant intends to occupy one of the 94 Ch. 162 — 7 — 334378 housing units as their principal residence for a minimum of three years from the date of the approval of the urban lot split. (2) This subdivision shall not apply to an applicant that is a “community land trust,” as defined in clause (ii) of subparagraph (C) of paragraph (11) of subdivision (a) of Section 402.1 of the Revenue and Taxation Code, or is a “qualified nonprofit corporation” as described in Section 214.15 of the Revenue and Taxation Code. (3) A local agency shall not impose additional owner occupancy standards, other than provided for in this subdivision, on an urban lot split pursuant to this section. (h) A local agency shall require that a rental of any unit created pursuant to this section be for a term longer than 30 days. (i) A local agency shall not require, as a condition for ministerial approval of a parcel map application for the creation of an urban lot split, the correction of nonconforming zoning conditions. (j) (1) Notwithstanding any provision of Section 65852.2, 65852.21, 65852.22, 65915, or this section, a local agency shall not be required to permit more than two units on a parcel created through the exercise of the authority contained within this section. (2) For the purposes of this section, “unit” means any dwelling unit, including, but not limited to, a unit or units created pursuant to Section 65852.21, a primary dwelling, an accessory dwelling unit as defined in Section 65852.2, or a junior accessory dwelling unit as defined in Section 65852.22. (k) Notwithstanding paragraph (3) of subdivision (c), an application shall not be rejected solely because it proposes adjacent or connected structures provided that the structures meet building code safety standards and are sufficient to allow separate conveyance. (l) Local agencies shall include the number of applications for parcel maps for urban lot splits pursuant to this section in the annual housing element report as required by subparagraph (I) of paragraph (2) of subdivision (a) of Section 65400. (m) For purposes of this section, both of the following shall apply: (1) “Objective zoning standards,” “objective subdivision standards,” and “objective design review standards” mean standards that involve no personal or subjective judgment by a public official and are uniformly verifiable by reference to an external and uniform benchmark or criterion available and knowable by both the development applicant or proponent and the public official prior to submittal. These standards may be embodied in alternative objective land use specifications adopted by a local agency, and may include, but are not limited to, housing overlay zones, specific plans, inclusionary zoning ordinances, and density bonus ordinances. (2) “Local agency” means a city, county, or city and county, whether general law or chartered. (n) A local agency may adopt an ordinance to implement the provisions of this section. An ordinance adopted to implement this section shall not be 94 — 8 — Ch. 162 335379 considered a project under Division 13 (commencing with Section 21000) of the Public Resources Code. (o) Nothing in this section shall be construed to supersede or in any way alter or lessen the effect or application of the California Coastal Act of 1976 (Division 20 (commencing with Section 30000) of the Public Resources Code), except that the local agency shall not be required to hold public hearings for coastal development permit applications for urban lot splits pursuant to this section. SEC. 3. Section 66452.6 of the Government Code is amended to read: 66452.6. (a) (1) An approved or conditionally approved tentative map shall expire 24 months after its approval or conditional approval, or after any additional period of time as may be prescribed by local ordinance, not to exceed an additional 24 months. However, if the subdivider is required to expend two hundred thirty-six thousand seven hundred ninety dollars ($236,790) or more to construct, improve, or finance the construction or improvement of public improvements outside the property boundaries of the tentative map, excluding improvements of public rights-of-way that abut the boundary of the property to be subdivided and that are reasonably related to the development of that property, each filing of a final map authorized by Section 66456.1 shall extend the expiration of the approved or conditionally approved tentative map by 48 months from the date of its expiration, as provided in this section, or the date of the previously filed final map, whichever is later. The extensions shall not extend the tentative map more than 10 years from its approval or conditional approval. However, a tentative map on property subject to a development agreement authorized by Article 2.5 (commencing with Section 65864) of Chapter 4 of Division 1 may be extended for the period of time provided for in the agreement, but not beyond the duration of the agreement. The number of phased final maps that may be filed shall be determined by the advisory agency at the time of the approval or conditional approval of the tentative map. (2) Commencing January 1, 2012, and each calendar year thereafter, the amount of two hundred thirty-six thousand seven hundred ninety dollars ($236,790) shall be annually increased by operation of law according to the adjustment for inflation set forth in the statewide cost index for class B construction, as determined by the State Allocation Board at its January meeting. The effective date of each annual adjustment shall be March 1. The adjusted amount shall apply to tentative and vesting tentative maps whose applications were received after the effective date of the adjustment. (3) “Public improvements,” as used in this subdivision, include traffic controls, streets, roads, highways, freeways, bridges, overcrossings, street interchanges, flood control or storm drain facilities, sewer facilities, water facilities, and lighting facilities. (b) (1) The period of time specified in subdivision (a), including any extension thereof granted pursuant to subdivision (e), shall not include any period of time during which a development moratorium, imposed after approval of the tentative map, is in existence. However, the length of the moratorium shall not exceed five years. 94 Ch. 162 — 9 — 336380 (2) The length of time specified in paragraph (1) shall be extended for up to three years, but in no event beyond January 1, 1992, during the pendency of any lawsuit in which the subdivider asserts, and the local agency that approved or conditionally approved the tentative map denies, the existence or application of a development moratorium to the tentative map. (3) Once a development moratorium is terminated, the map shall be valid for the same period of time as was left to run on the map at the time that the moratorium was imposed. However, if the remaining time is less than 120 days, the map shall be valid for 120 days following the termination of the moratorium. (c) The period of time specified in subdivision (a), including any extension thereof granted pursuant to subdivision (e), shall not include the period of time during which a lawsuit involving the approval or conditional approval of the tentative map is or was pending in a court of competent jurisdiction, if the stay of the time period is approved by the local agency pursuant to this section. After service of the initial petition or complaint in the lawsuit upon the local agency, the subdivider may apply to the local agency for a stay pursuant to the local agency’s adopted procedures. Within 40 days after receiving the application, the local agency shall either stay the time period for up to five years or deny the requested stay. The local agency may, by ordinance, establish procedures for reviewing the requests, including, but not limited to, notice and hearing requirements, appeal procedures, and other administrative requirements. (d) The expiration of the approved or conditionally approved tentative map shall terminate all proceedings and no final map or parcel map of all or any portion of the real property included within the tentative map shall be filed with the legislative body without first processing a new tentative map. Once a timely filing is made, subsequent actions of the local agency, including, but not limited to, processing, approving, and recording, may lawfully occur after the date of expiration of the tentative map. Delivery to the county surveyor or city engineer shall be deemed a timely filing for purposes of this section. (e) Upon application of the subdivider filed before the expiration of the approved or conditionally approved tentative map, the time at which the map expires pursuant to subdivision (a) may be extended by the legislative body or by an advisory agency authorized to approve or conditionally approve tentative maps for a period or periods not exceeding a total of six years. The period of extension specified in this subdivision shall be in addition to the period of time provided by subdivision (a). Before the expiration of an approved or conditionally approved tentative map, upon an application by the subdivider to extend that map, the map shall automatically be extended for 60 days or until the application for the extension is approved, conditionally approved, or denied, whichever occurs first. If the advisory agency denies a subdivider’s application for an extension, the subdivider may appeal to the legislative body within 15 days after the advisory agency has denied the extension. 94 — 10 — Ch. 162 337381 (f) For purposes of this section, a development moratorium includes a water or sewer moratorium, or a water and sewer moratorium, as well as other actions of public agencies that regulate land use, development, or the provision of services to the land, including the public agency with the authority to approve or conditionally approve the tentative map, which thereafter prevents, prohibits, or delays the approval of a final or parcel map. A development moratorium shall also be deemed to exist for purposes of this section for any period of time during which a condition imposed by the city or county could not be satisfied because of either of the following: (1) The condition was one that, by its nature, necessitated action by the city or county, and the city or county either did not take the necessary action or by its own action or inaction was prevented or delayed in taking the necessary action before expiration of the tentative map. (2) The condition necessitates acquisition of real property or any interest in real property from a public agency, other than the city or county that approved or conditionally approved the tentative map, and that other public agency fails or refuses to convey the property interest necessary to satisfy the condition. However, nothing in this subdivision shall be construed to require any public agency to convey any interest in real property owned by it. A development moratorium specified in this paragraph shall be deemed to have been imposed either on the date of approval or conditional approval of the tentative map, if evidence was included in the public record that the public agency that owns or controls the real property or any interest therein may refuse to convey that property or interest, or on the date that the public agency that owns or controls the real property or any interest therein receives an offer by the subdivider to purchase that property or interest for fair market value, whichever is later. A development moratorium specified in this paragraph shall extend the tentative map up to the maximum period as set forth in subdivision (b), but not later than January 1, 1992, so long as the public agency that owns or controls the real property or any interest therein fails or refuses to convey the necessary property interest, regardless of the reason for the failure or refusal, except that the development moratorium shall be deemed to terminate 60 days after the public agency has officially made, and communicated to the subdivider, a written offer or commitment binding on the agency to convey the necessary property interest for a fair market value, paid in a reasonable time and manner. SEC. 4. The Legislature finds and declares that ensuring access to affordable housing is a matter of statewide concern and not a municipal affair as that term is used in Section 5 of Article XI of the California Constitution. Therefore, Sections 1 and 2 of this act adding Sections 65852.21 and 66411.7 to the Government Code and Section 3 of this act amending Section 66452.6 of the Government Code apply to all cities, including charter cities. SEC. 5. No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because a local agency or school district has the authority to levy service charges, fees, or assessments sufficient to pay for the program or level of service mandated by this act or 94 Ch. 162 — 11 — 338382 because costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution. O 94 — 12 — Ch. 162 339383