Agenda Item AGENDA STAFF REPORT ASR Control 15-000154
MEETING DATE:	04/14/15
legal entity taking action:	Board of Supervisors and Orange County Flood Control District
board of supervisors district(s):	3
SUBMITTING Agency/Department:	OC Public Works (Approved)
Department contact person(s):	Kevin Onuma (714) 647-3939
	Mehdi Sobhani (714) 647-3998

Subject: Amendment No. 2 to Cooperative Agreement with the City of Tustin

ceo CONCUR

County Counsel Review

Clerk of the Board

Concur

Approved Agreement to Form

Consent Calendar

3 Votes Board Majority

Budgeted: N/A

Current Year Cost: N/A

Annual Cost: N/A

Staffing Impact:

No

# of Positions:

Sole Source: No

Current Fiscal Year Revenue: N/A

Funding Source: Flood Fund 400: 100%

County Audit in last 3 years: No

Prior Board Action: 06/08/2004 #S97A, 03/11/2003 #20

RECOMMENDED ACTION(S):

1.		Make the following California Environmental Quality Act (CEQA) findings:
	a.			The City of Tustin (City), as lead agency under CEQA for this project, has certified the Final Environmental Impact Statement and Environmental Impact Report (Final EIS/EIR) SCH #1994071005 on December 6, 2004. The Orange County Flood Control District (District) and the County of Orange (County) as responsible agencies under CEQA Guidelines section 15381 have reviewed and considered the Final EIS/EIR prepared by the City, and certify that they have done so, pursuant to CEQA Guidelines section 15050(b).
	b.			There are no significant environmental effects within the jurisdiction of the District and/or the County which require a finding on the part of the District and/or the County.
	c.			The circumstances of the project are substantially the same as described in the Final EIS/EIR and no substantial changes have been made in the project, no substantial changes have occurred in the circumstances under which the project is being undertaken, and no new information of importance to the project which was not known or could not have been known when the previous Final EIS/EIR was certified have become known.
	d.			Adoption and implementation of those feasible mitigation measures related to those aspects of the project that are within the separate authority of District and/or the County, pursuant to Guidelines section 15096 (g)-(h). As responsible agencies District and County are authorized, pursuant to Guidelines section 15096, to rely on the Final EIS/EIR certified by the City.
2.			The County of Orange and/or Orange County Flood Control District hereby adopt and will implement those feasible mitigation measures related to those aspects of the project, if any, that are within their separate authority, pursuant to Guidelines section 15096(g)-(h).
3.			Approve Amendment No. 2 to Cooperative Agreement D02-119 (Amendment) among the District, the County, and the City to incorporate necessary Peters Canyon Channel Improvement schedule modifications.
4.			Authorize the OC Public Works Director or designee (Director) to carry out the terms of the Amendment.
5.			Authorize the Director to execute future amendment(s) to Cooperative Agreement D02-119, provided those amendments would result in minor, non-substantive changes which do not create or increase a financial obligation on the part of the District or the County.

SUMMARY:

Approval of Amendment No. 2 to Cooperative Agreement D02-119 with the City of Tustin (City) will modify when the City is to commence construction of a certain portion of Peters Canyon Channel ultimate improvements, in order to accommodate the construction of a water quality pipeline project in the same area and to avoid conflict between the two projects, thereby providing the public with increased flood protection and water quality.

BACKGROUND INFORMATION:

On March 11, 2003, the Board approved Cooperative Agreement D02-119 (Agreement) among the Orange County Flood Control District (District), the County of Orange (County), and the City of Tustin (City) which established that the City will be responsible for constructing infrastructure to support the development within the former Marine Corps Air Station known as the "Tustin Legacy." This responsibility included an obligation that the City design and construct Peters Canyon Channel Improvements (Improvements) to satisfactorily convey 100 year storm flows in accordance with District standards and criteria, as well as, satisfy other resource agency permits. The City was also to establish how construction of the Improvements and other infrastructure would be scheduled, engineered, financed, operated, and maintained.

On June 8, 2004, the Board approved Amendment No. 1 to Cooperative Agreement D02-119 which revised the Agreement to tie completion of the Improvements to Tustin Legacy's development and formation of a community facilities district which would finance those Improvements. Pursuant to Section 5.3.3.4 as amended by Amendment No.1, the City is to commence construction of the Improvements prior to issuing certificates of use and occupancy to the 1,001st residential unit, or the issuance of such certificates on more than 270 acres of the land which drain into Peters Canyon Channel, whichever occurs first. Upon commencement of construction, the City is to make every effort to ensure completion of the Improvements within 15 months.

The City has stated it needs to move ahead with construction of Improvements to comply with their obligations under the Agreement. However, implementing construction of the Improvements at this time would interfere with the construction of a Peters Canyon Channel pipeline (Pipeline Project) in the same area. The Pipeline Project is a collaborative water quality compliance effort among the County, the District, the City of Tustin, the City of Irvine, the Irvine Ranch Water District, and the California Department of Transportation. The Pipeline Project has been awarded certain grant funding that requires it to progress in accordance with pertinent regulatory schedules and the grant funding timelines. Substantial monetary and time delays would occur if the two projects were to be in construction at the same time.

Proposed Amendment No. 2 to Cooperative Agreement D02-119 amends Section 5.3.3.4 of the Agreement to require that the City’s Improvements commence prior to the issuance of certificates of use and occupancy for the 1,201st residential unit (an increase in 200 units), or to more than 270 acres (no change) of the land, whichever occurs first. With this amendment, the City’s construction of the Improvements will be postponed so as not to interfere with the Pipeline Project, but ensures the Improvements will be tied to a revised metric. The requirement that the City make every effort to ensure completion of the Improvements within 15 months of commencement remains unchanged from the Agreement. In addition, the Board is requested to delegate authority for the Director of OC Public Works or designee (Director) to execute future amendments to the Cooperative Agreement D02-119 where the proposed revisions are minor or non-substantive and no financial obligations on the part of District or County are created or increased. This authorization would streamline future collaboration with the City, should it be needed, for the completion of the Pipeline Project.

Compliance with CEQA: The City, as lead agency under CEQA for this project, certified the Final Environmental Impact Statement and Environmental Impact Report SCH #1994071005 on December 6, 2004 (Final EIS/EIR). The District and the County, as responsible agencies under CEQA Guidelines section 15381, have reviewed and considered the certified Final EIS/EIR and have certified that they have done so. The District and County adopt and implement those feasible mitigation measures, if any, related to those aspects of the project that are within their separate authority. As responsible agencies, the District and the County are authorized by Guidelines section 15096 to rely on the Final EIS/EIR certified by the City.

General Plan: The project is consistent with the General Plan of the City of Tustin.

FINANCIAL IMPACT:

The City is to fund the completion of drainage studies, engineering design, construction of the Peters Canyon Channel Improvements and dedication of the Improvements and any additional right-of-way needed by the District for said Improvements, at no cost to the District and the County. The District would only incur costs for operation and maintenance if and when the completed Improvements were accepted by the Director.

STAFFING IMPACT:

N/A

ATTACHMENT(S):

Attachment A – Amendment No. 2 to Cooperative Agreement D02-119
Attachment B – Strikethrough Cooperative Agreement D02-119
Attachment C – Project Location Map