2 3 4 5 6 7 8 9 10 I I 1 2 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IG NACIA S. MORENO Assistan t Attorney GeneraJ Environment and Natural Resources Division United States Department of Justice Washington D.C. 20530 BRADLEY R. O'BRlEN, STATE BAR NO. 189425 Senior Attorney Envir onmental Enforcement Section United States Department of Ju sti ce 30 1 Howard Street , Sui te 1 0 50 San Francisco, Ca l iforn ia 94105 Telephone : (4 1 5) 744-6484 Facs im iEmail: TONY WEST Assistant Attorney General R. MICHAEL UNDERHILL Attorney in Cbarge, West Coast Office Torts Branch, Civil Division United States Department of Justice 7· 5395 Federal Bldg. Bo x 36028 450 Gol den Gate Avenue San Francisc o, California 94 102-346 3 Telepho Email: Attorneys for Plaintiff , United St;1.tes of America Addit ional counsel li sted on next page UNITED STATES DISTRICT COURT NORTHERN DISTRI CT OF CALIFORNIA UNITED STATES OF AMERICA, Plaintiff, VS. ) ) ) ) ) ) ) MN casco BUSAN, LRlIMO Ship No . ) 9231743, her engines , apparel, electronics, tackle, ) boaiS. appurtenances, c I C. , in rem , REGAL STONE) LIMITED , FLEET MANAUEMENT LTD. , AND ) JOI IN COTA, in p e rsonam , ) Defendants. (And Certain Related Actions) ) ) C 07-6045(SC) IN ADMIRALTY CONSENT DECREE United States a/Amer ica V.I'. MI V Cosco B l I . ~ a n - Civil Action No. C 07-6045(SCj Consent Deere
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IGNACIA S. MORENOAssistant Attorney GeneraJEnvironment and Natural Resources DivisionUnited States Department of JusticeWashington D.C. 20530BRADLEY R. O'BRlEN, STATE BAR NO. 189425
Senior AttorneyEnvironmental Enforcement SectionUnited States Department of Justice30 1 Howard Street, Suite 1050San Francisco, California 94105Telephone: (4 15) 744-6484Facs imi Email:
TONY WESTAssistant Attorney GeneralR. MICHAEL UNDERHILLAttorney in Cbarge, West Coast Office
Torts Branch, Civil DivisionUnited States Department of Justice7·5395 Federal Bldg. Box 36028450 Golden Gate AvenueSan Francisco, California 94 102-3463Telepho Email:
Attorneys for Plaintiff, United St;1.tes of America
Additional counsel listed on next page
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA,
Plaintiff,
VS.
)
)
)
))
)
)
MN casco BUSAN, LRlIMO Ship No. )
9231743, her engines, apparel, electronics, tackle, )
boaiS. appurtenances, cIC. , in rem , REGAL STONE)LIMITED, FLEET MANAUEMENT LTD., AND )
JOI IN COTA, in personam , )
Defendants.
(And Certain Related Actions)
)
)
C 07-6045(SC)
IN ADMIRALTY
CONSENT DECREE
United States a/America V.I'. MIV Cosco B l I . ~ a n - Civil Action No. C 07-6045(SCjConsent Deere
Attorneys for Plaint if fs, People uflht: Slate ofCalifornia ex rei. Department ofFish and Game,
Re gional Water Quality Control Board, San Francisco Bay Region, and California State Lands
Commission
DENNIS J. HERRERA, STATE BAR NO. 139669City AttorneyTHERESE M. STEWART, STATE BAR NO. 104930Chief Deputy City AttorneyDo.NALD P. MARGOLIS, STATE OAR NO. 116588THo.MAS S. LAKRlTZ, STATE BAR NO. 161234Deputy C ity AttorneysCity Hall , Room 234
1 Dr. Car lton B. Goodlett PlaceSan francisco, Calitornia 94102·4682
Telephone: 415·554-6547
Fac sim Email :
Attorneys for Plaintiff, City and COlUlty of San Francisco
K. SCOTT DICKf:Y, STATE BAR NO. 184251Chief Deputy City AttorneyRlCllMo.ND CITY ATTo.RNEY' S o.FFlCE450 Civic Center Plaza. Third FloorRichmond, California 94804
JOS EPH A. WALSH II. STATE BAR NO. 143694Jot-IN COX, STATE BAR NO. 197687FRANCES L. KEELER, STATE BAR NO. 150685Kccsa l, Young & Loga n, PC450 Pacific AvenueSan Francisco, California 94133
Telephone: 415-398
-6000facsim
Emai l:
Attorneys for Defendants, Regal Stone Limited, Fleet Management Ltd. andMN COSCO BUSAN
WALTER G. COPPEN RATH, JR.
COPPENRATH JONES LLP
400 Oceangate, Suite 400
Long Beach. Ca lifornia 90802Telephone: 562-216-2948
Fac sim Email :
Attomeys forDefendant, JohnJ. Co la
Uni ted Stales ofAmerica vs. lJ/V Cosco Busan - Civil Action No. C 07-6045(SC)
Christopher J. PlaistedAttorney-Ad visorNational Oceanic and Atmospheric AdministrationOffice of Generd.l Counsel fo r Natural Resources
501 W. Ocean Blvd , Suite 4470Long Beach, California 90802
To the Stale Agencies :
Robert W. ByrneSupervisi ng Deputy Altomey Genera l
455 Go lden G<.Ite Avenue, Su ite J100
San Francisco, California 94 102
Christiana TiedemannSupervising Deputy Attorney General
1515 Clay Street, 20th
FloorP.O. Box 70550Oakland, California 946 12-0550
To CSLC:
Kathryn Wiens, Staff CounselState Lands Commission100 Ho\.\'e Avenue , Suite 100 So uthSacramento, California 95825-8202
ToCDFG:
Katherine Ven-ue-Slater
StaIT Counsel UIStephen SawyerA s i 1 . a n t ChiefCounselDepamnent of Fi sh and GameOffice of Sp ill Prevention and Response1700 " K" Street, Suite 250Sacramento, California 95811
To RWQCH :
Christ ian Carrigan
StaffCounsel IIICalifornia Regiona l Water Quality Control Board, SF Bay Region
100 I I StreetP,O, Box tOO
Sacramento, California 9581 2
United States ofAmerica VJ', .WVCasco Busan - Civil Action No, C 07-6045(S<..:)Comen( Decre
San Francisco Bay Shoreline Paf1i;s and Outdoor Recreational Use Account
Memorandum of AgreementAmong the
California Department of Fish and Game, the California State Lands Commission and th eNational Fish and Wildlife Foundation
Relating to the Cosco Busan Settlement
Th is San Francisco Bay S h o r ~ i n e Parks and Outdoor Recreational Use Account
Memorandum of Agreement (this A g r e e m e n n is among the California Department of flsh and
Game rCDFG"), the California State lands Commission rCSLC") (collectively referred to asthe "State Trustee Agencies" or "Trustee Agencies· and individually as 8 "Trustee Agency"), and
the National Fish and W ildlife Foundation (the "Foundation") (together, the "Parties,· and
individually, a ·Party*). The -Effective Date" of this agreement is the date of the signature of thelast Party to sign.
I. PURPOSE
The purpose of this Agreement is to establish the San Francisco Bay Parks and Outdoor
Recreational Use Account (the "Account"). The purpose of the Account is to receive andmanage certain monies from settling defendants in the matter of the United States ofAmerica v
AW Cosco Busan, 81 aI. (the "Cosco Busan settlement"), following enlty of the consent decreeby the United States District Court for the Northern District of California {C 07-6045(SC)] . Suchmonies shan be used to fund projects that will COI'I'lpeIlS8te the public for I06S of use and
entoyment of natural resources , paoo , public beaches. and other public r8SOllrce5 that are
not under the jurisdtction of the National Park SaNice ( ~ N P S · ) the City and County ofSan Francisco ( ~ C C S F " ) or the City of Richmond ("Rlchmond")' as a result of the Cosco Busanoil spill into San Francisco Bay on November 7, 2007.
Monies in the Account will be directed to specified compensatory projects in accordancewith the procedures set forth In this Agreement. The Parties agree that the types of projects for
which funds in the Account will be used include, but are not limited to, public access
improvements. public reaealJonsl facilities upgrades, trails enhancement, public beachesenhancement, and other activities designed to benefit public access to and use and enjoyment
of natural and cultural resources in the Bay Area. The operation of the Acco...,t win begoverned 8)1c1usively by the tenns and conditions of this Agreement. The use althe Accountwill be lim ited by the amount of money available in the Account at any given tine.
II. AUTHORITY
A. CDFG has been designated as a state trustee for natural resources pursuant to
section 1006(b)(3) of the Oil Pollution Acf and has state Mtural resource trustee authoritypursuant to Fish and Game Code sections 711.7 and 1802 and the Lempert-Keena-Seastrend011 Sp ill Preventlon and Response Act (Gov. Code § 8670.1, et seq .). As a designated Truslee.
, Pura\.Iin 10 th e oanMnt
'*"' n IN m ..... of h i l i i IMI 5aiIN 01 r(wv COIClD M • .• 1M ! \ lU l l
. . . . . . . . . ar . . . . _an : ! of . . . . . . . lIIIIUUIII . . . . . . . . . . ofCCSF n RIcMIond . . . be pMad In. . , . . . KICXUlIs l o t . D n ~ byCCSF n Rkhnond . The,...,... _ tor., . ._and~ . m o f r . u . l _ t n W l M ~ o f " ' ~ h I I I ~ " ' b e p l K : e d i n . ~ M d ~ w I I N r ! fi e0epartmenI d th e Irltarior Nal.l'lll RaIOU'I:IM Aa_.-..ot n FInS. aIotIgoVlftlhlWMining r.U'aI
rwcMCa be tONi. . . . . , JoIr'Id'1 by ' " NllIIorgI PR s....oo. ("NPS 'l . !he u.s. FW!n\WcWfe ("'tJSFWS 'l .Ihe oc:aenc and ('NOI<A1. and !he sen. T I \ I J t e I I ~ . ( ~ ~ 10 _ th t-r_,
• Sm. trustees fa( CalifOrnIa pu"SUant kl OPA and the CoIT\pr9hen6IWJ EnvIromllll'llBl Re&pOI'"I$8. Compenubl, andLiabilityAct ("CERClA1_ ~ I a d puo-n 0 th t ~ , ~ ofsrn N.tInI RNtuw Tro. . . . . uncIIIr
E r M C » l f ' . l / a I ~ . tJnd u.bMyAttcl1i60, 1M 041 PoIutJoo Ac:tcl1PQO. a n d ~ HNIft! andS4JIet( Code - * t ln 2 6 3 6 Z ( ~ lilted Odober 5. 2OO7• .m ..a . , . . deIegdo!w of Slaa TruetM try !toe
lor NatlnI _ . . SeaeI:wy lor EnWonmBntll P , O I e C I b
S.F. Bay Parks and Recreatkln AccountMemorandum of Agreement Among CDFG and CSLC Page 2 of 11
CDFG is authorized to act on behalf of the public under state andlor fedetal law to assess and
recover natural resource damages and to plan and implement actions that restore injurednatural resources and compensate the public for the loss of use and enjoyment of naturalresources impacted by a discharge of oil.
B. CSLC is entering Inlo this Agreement pursuant to Division 6 of the CaliforniaPublic Resources Code, including sections 6216 and 6301, as the State agency with exclusivecontrol. jurisdiction and administrative authority over all ungranted tide and submerged lands
and the reversionary and residual Interest of the State as to pubfic trust lands legislativelygranted to local governments.
C. The Foundation is 8 charitable non-profit corporation established in 1984 by the
United State Congress under the Nalional FISh and Wildlife Foundation EstablishmentAct,TrtIe 16, Unitsd States Code section 3701, et seq . 88 amended (the "Establishment Act"), and Isrecognized as a tax exempt organization under section 501 (cX3) of the Intemal Revenue Code .In the Establishment Act, the Foundation is directed to undertake activities that further the
conservation and management of fiSh, wildlife, and plant resources for present and futuregenerations and is authorized to accept funds from any legal source to further its mission.
III. DEFINITIONS
1. -Account-shall have the meaning assigned to such term in Section I of thisAgreement.
2. -Agreement" shall have the meaning assigned to such term in the Preamble tothis Agreement.
3. "Annual Fee-shall mean an annual fee equal to the!HH! of: (a) three percent
(3%) of the amount in the Account al the time of assessment, or (b) Fifty Seven Thousand FiveHundred dollars ($57.500 USD); proYkied, however , that if at any time the Annual Fee as
calculated pursuant to (a) above would be less than Five Thousand dollars ($5,000 USD) then
the Annual Fee will be Five Thousand dollars ($5,000 USD).
4. "Effective Date"shall have the meaning assigned to such term in the Preamble tothis Ag reement.
5. "Foundation- sha ll have the meaning assigned to such term In the Preamble tothis Agreement.
6. -Foundation Representative-shall mean the deSignated staff person for the
Foundation responsible for primary communications and adm inistration relaled to thisAgreement.
7. "Party"shall have the meaning assigned to such term " the Preamble to this
Agreement.
8. -Per Disbursement Fee- shall mean two percent (2%) of eaCh amount disbursedout of the Account in accordance with the applicable Recipient Agreements, whiCh will be
assessed end collected by the Foundation from the money remaining in the Account on a onetime basis upon each disbursement of funds hereullder.
9. "Project" shall mean 8 restoratiOn or enhancement project consisten t withSection I (Apurpose_) of th is Agreement thai has been selected by the Trustee Agencies for
S.F. Bay Pant. and Recreation AccountMomorandum of Agreement Among CDFG and CSL.C
f r_PBQe 3 of 11
funding with amounts In the Acoount in accordance wilh the procedures set fol1h in thisAgreement.
10. 5Reclplent- shall mean any entity that receives monies from the Account for the
performance of a Project as set forth in a Recipient Agreement.
11 . aRecipient A g r e e m e n t ~ s h a l l mean a contract, grant agreement, invoice, workorder, or other written agreement between the FOLndation and a Recipien1 for the performance
of a Project, as directed by the State Trustee Agencies.
12. "RFP-shaH have the meaning assigned to such term in Section IV(2)(c) of thisAgreement.
13. '7rusttJe Agencies· shall have the moaning assigned to such term in thePreamble to this Agreement.
14. "Trust" Agency R e p r & s e n t 8 t i v e ~ s h a l l mean the deSignated staff person foreach of the two Trustee Agendes (or his or her alternate, acting In the place of the primary
Trustees Agency Representative) responsible fO( primary communications and administrationrelated to this Agreemenl.
IV. TRUSTEE AGENCIES RESPONSIBIL.TIES
1. Each Trustee Agency shaJ! appoint its respective Trustee Agency Representativeand an alternate, who shall represent such Trustee Agency in carrying out its obligations under
th is Agreement. The two (2) Trustee Agency Representatives and alternates shall be the only
persons authorized to approve deposits into, or disbursements out of, the Account. The Trustee
Agency Representatives shall select a Lead Trustee Agency Representative to transmit joint
decisions and serve as the main point of oontact to the Foundation Representative.
2. The Trustee Agencies shall solicit or othefwise ktentify Projects using one or
more of the following processes:
a. The Tl1Jstee Agencies may jOintly issue a call for proposals and select
projects from the submissions.
b. The Trustee Agencies may jointly select protects submitted in response toone of the Foundation's regulal1y scheduled general calls for proposals through the
Foundation website.
c. The Trustee Agencies may jointly direct the Foundation to prepare andissue a specialized request for proposals (each, an "RFP") and select from the
submissions.
d. The Tl1Jstee Agendas may jointly select projects submitted in response to
the Trustees' requests fo r restoration proJeC1ldeas, including solicitations in the
CDFG's, National Oceanic and Atmospheric Association's (NOAA) and United States
Fish and WadHe Service's (USFWS)websiles.
3. The Trustee Agencies shall coordinate the selection of Projects to receivefunding from the Account with NPS, NOAA, and USFWS in accordance with any Trustee
memorandum or other agreemant among them pertaining to the Cosoo Susan senlemen1. The
Trustee Agencies shall evaluate project proposals utilizing the evaluation standards set forth in
S.F. Bay Parb and Recreation AccountM.."or.ndum of Agreement Among COFG and CSLC
-p - - emPage4of11
t V
Title15, Code of Federal Regu!.2ltions section 990.54 andlor the project selection criteriacontained in the natural resources restoration plan for the Cosco Susan spill prepared by theTrustees, to the extent applicable.
4. After F'rojec1s have been identified and selected through the foregoingprocedures, the Lead Truslee Agency Representative shall direct the Foundation in writing to
enter into Recipient Agreements for the performance of selected Projects. The Lead TrusteeAgency Representative or both Trustee Agency Representatives may review and approve:(a) all Recipient Agreements, including any amendments, prior to their execution, and (b) allrequests from Recipients for disbursements of funds from the Account (which will be made inaccordance with the terms of the applicable Recipient Agreement) prior to such d f s b u ~ e m e n t s be ing made. If the Trustee Agency Representatives direct the Foundation 10 make
disbursements from the Account 10 one or more R&cipients in specffied amounts, theFoundation is entiUed to rely upon such direction and she. make such disbursements in theamounts so specified.
5. The Trustee Agencies may jointly elect to use money from the Account forprojects to be carried out by either of the Trustee Agencies rather than by a thln:t-party
Recipient. In such instances. the lead Trustee Agency Representative will transmit to theFoundation Representative a project budget, a description of the appicabte project, and
associated payment procedures for transfer of money from the Account to the Trustee Agencyas payment for perfonnance of the relevant project. However, as set forth in Section VII,Paragraph 8 below, In no event will the Trustee Agencies use or direct money from the Accountin a manner that would unlawfully augment their appropriated fund ing.
6. The Trustee Agencies may request that the Foundation participate in annualtechnical reviews to evaluate the success of Projects funded by the Account. In suCh event theFoundation shall make available such personnel and other resources 8S are reasonablynecessary to successfully participate In such reviews.
7. If the Trustee Agencies jo intly determine that termination or cancellation of 8
particular Project is warranted, the lead Trustee Agency Representative wi. so inform theFoundation in writing and the Foundation shall thereafter proceed in accordance with theprocedures set forth in Section VIII(2) of this Agreement
8. The Trustee Agencies Shall provide Information to the general public, as
appropriate, about the Account plXSuant to any requirements the Trustees may have under thecalrtornia Public Records Act or other authorities .
v, FOUNDATION RESPONSIBILITIES
1. The Foundation shall appoint the Foundation Representative and an alternate,who shaU represent the Foundation in carrying out its obligations under this Agreement
2. The Foundation shall maintain the Account in an Interest bearing Of Investmentaccount at one or more financiallnstltution(s) that Is a member of the Federal Deposit InsuranceCorporation. For accounting purposes, the Account shaA be distinguishable from all otheraccounts maintained by ttle Foundation.
3. The Foundation shall invest and reinvest funds in the Account in accordance withthe Foundation's then-prevailing investment policy statement on cash management. Day-to-day
investment decisions will be made by the professional investment advisor or bank with whichthe Foundation has estab1ished an investment advisory relationship .
S.F. Bay Parks and RecreatIon AccountMemorandum . g t - - ~ i : e m e n t Among C,?!g and CSLC
l iTHP3ge50f11
p ' , ," 'v4. For investment purposes only, the Foundation is authorized to commingle any or
all of the assets existing in the Account with other funds held or managed by the Foundalionthat are subject to Identical investment restrictions. The intent of this authorization Is to allowthe Foundation to pool funds subject to identical Investment restrictions for collective
management, such that all participating funds may benefit from efficiencies of seale. Any fundsfrom the Account commingled in this manner shall at all times remain sUbfect to the Investmentguidance (i f any) specified by the Trustee Agencies fa ( such funds. In addition, notwithstanding
this authorization, and in accordance with Section V(2) above, funds in th e Account, including
retum on investments or accrued Interest, shall at all times be distinguishable within theFoundation·s internal account system from the balance of all other accounts maintained or
managed by the Foundation.
S. The Foundation shall administer the Account consistent with Section VII below.
6. If requested by the Trustee Agencies, the Foundation shall prepare one or more
RFPs for projects to be jointiy selected by the Trustee Agencies and funded by the Account.
7. The Foundation shall enter into Recipient Agreements for Projects selected by
the TRJStee Agencies under Section IV above and shall pay Rec:ipients ' requests fordtsbul"$ements in accordance with th e pmcedures se l forth in the respective RecipientAgreements. The Trustee Agencies may also direct ttle Foundation to make direct
disbursements (without a governing Recipient Agreement) to RecIpIents for perfonnance of
appropriate proJects or activities.
8. If requested by the TrustM Agencies , the Foundation shall participate with theTrustee Agencies in annual technical reviews 10 evaluate the progress and results of Projectsfunded by the Account.
9. If so directed by the Trustee Agencies in writing, the Foundation will undertakethe measures set forth in Section VJtl(2) below to terminate or cancel a Project.
VI, PROJECT SELECTION
The Trustee Agencies plen to work with local cities, counties, districts and other publicand private organizations to solicit Protects for funding through a competitive grant process, untilall funds are spent. II is a goal of the Trustee Agencies to select 8 suite of projects spanning thearea of the spill outsfde the jurisdiction of NPS. CCSF, and Richmond that address the varioustypes of recreational actMties impacted by the spill. To that end. and to the extent feasible,funds will be approximately a llocated according to the relative magnitude of the spitt impacts, asfollows :
• East Bay: 57%• Marin County. 10%• San Mateo County. 29%
Other Areas: 4%
VII . ACCOUNT ADMINISTRATION
1. Within ten (10) days after the Effective Date, the Foundation shatl establish the
S.F. Bay Parka and Recreation AccountMemorandum of AgrHment Among CDFG and CSLC
=z=-uPage 6 of 11
Z I I I l lWUm?ZZmX
2. Upon disbursement of funds from the Account, the Foundation shall assess and
collect the Per Disbursement Fee on the disbursement amount (such Per Disbursement Fee to
be collected by the Foundation from the Account Itself).
3. The Foundation shalJ assess and collect the Annual Fee annually during eachyear in which the Account is in existence. The Annual Fee shalJ be prorated In any year inwhich the Account is in existence for only part of such year. The Foundation shall cofIect theAnnual Fee by deducting it from the balance in the Account. The FolRfation 's fee forconducting an RFP In accordance with Section V(6) above is separate and apart from, and shallnot be credited against or deducted from, the Annual Fee. The Foundation's fee for conductingeach RFP is Twenty Thousand dollars ($20,000 USD).
4. Bank charges assessed by any financial inslitution for the custodial management
of the Account shall be paid from amounts then on deposit in the Account itself.
5. Unless directed otherwise by the Trustee Agencies, the Foundation shall submit
Account activity reports to the two Trustee Agency Representatives semi-annually by June 15
and December 15 of each year the Account is In existence. The Foundation shall report on
deposits, disbursements, fees, and investment income during each semi-annual period, with areconciliation of the remaining unobligated balance. The reports will 8160 include the currentstatus of all active Recipient Agreements. Upon request, the FoundaUon shall provide to thetwo TrJstee Agency Representatives copies of its audited financial statements.
7, The Trustee Agencies shall not be entitled to direct the Foundation to enter intoany Recipient Agreement under which the Recipient would receive funds from the Account topay for klbbying actlvftles, litigation expenses, or any illegal actMties.
8. No funds disbursed from the Account may be used by any governmental
Recipient (indudlng but not limited to the Trustee Agencies themsalves) in a manner that would
unlawfully augment such Recipients' appropriated bLldget.
VIII. TERMINATION OF AGREEMENT
1. This Agreement shall tenninate upon the occurrence of the first of the threefollowing events: (a) on the fifteenth (15") anniversary of the Effective Date; (b) when all monies
in the Account have been disbursed and the Account has reached a zero (0) balence; or (e) by
the Foundation or tho Trustee Agencies upon sixty (60) days' prior written notice 10 the non-
terminating Party. If this Agreement is termil1l!lted pursuant to this Section, the Trustee
Agencies may request a full and complete accounting of all Account activity, Including deposits ,disbursements, fees, and investment Income, with a reconciliation of the remaining balance, and
the Foundation shall provide such accounting within ninety (90) days after receipt of such
request. In conjunction with sud'! accounting, the Foundation shall submit to the Trustee
Agencies for approva l any final payment requests from Recipients that require the TrusteeAgencies ' approval.
2. In the event of termination of this Agreement prior to all monies In the Account
having been expended, the Foundation shall immediately undertake all reasonablo steps to
wind down the Account cooperativety 'Nith the TnJstee Agencies, which steps shall indude but
no t be limited to the following (unless the Foundation is directed otherwise by the Trustee
Ageneies):
a. Oirect Recipients to stop any incomplete 'NOf'k.
S.F. Bay Pub and R.er . lon AccountMemorandum of Agrument Among COFG and CSlC Page 7 of 11
b. Direct Recipients to place no further work orders or enter Into any furthercontracts for materials, services, or facilities, except as necessary to complete work asdetennined in consultation with the TnJstees Agencies.
c. Enter into no further agreements with Recipients and terminate a llpending Project agreements for work that has not yet commenced.
d. Promptly take all other reasonable steps 10 minimize the add itionalobligation of Account funds.
8. Deliver or make available 10 the Trustee Agencies all data, drawings,specfflcalions, reports, estimates, summaries, and such other information and materialsas may have been developed under any Recipient Agreement, whether completed or inprogress.
1. Disburse remaining funds in the Aecount according to the TrusteeAgencies' """;t!en direction and in accordance wtth applicable law and regulation ,withholding only such amount as is necessary to pay any outstanding Aecountobligations that remain after steps (a) through (a) above have been completed .
IX. CONTACT INFORMATION/COMMUNICAnONS
1. No obligations may be Incurred, and no funds disbursed, from the Account,except for the Foundation's fees pursuant to Section VII above and bank fees, without thewritten approval of the Trustee Agency Representatives. All approvals, notices and reports,required or permitted under this Agreement, shall be In writing and delivered by first-class mail,ovemight mail, facsimile, or electronic .pdfformat. Each perty agrees to notify the other partiespromptly after any change In named representative, address, telephone, or other contactInformation.
2. Depositsmada
to theAccount
by check. sha ll be mailed to the Foundation 'sheadquarters offICe at 1133 15" Street, NIH, Suite 1100, Washington, D.C. 20005, to theattention of the Chief Financial Officer. Deposits made to the Account by electronic fundstransfer she. be directed to the Foundation (Taxpayer 1.0. Number 52-138-4139), in aocordancewith wiring instructions provided by the Foundation to the payer at the time of deposit.
3. The individuals named below shal be the Representatives of the TrusteeAgencies and the Foundation for purposes of this Agreement. Contect infonnation for theTrustee Agency Representatives and Foundation Representative 15 as follows (It being agreedand acknolNledged that contact information for deposits to the Account shall be as set forth InSection IX (2) above):
If to the Foundation :
l iz EpsteinSenior Manager, IDEA
National Rsh and Wildlife Foundation90 New Montgomery Street, Su lle 1010San Francisco, california 94105Telephone: (415) 243-3102
Facsimile: (415) 778-0998
Email: liz.epsteln@nfwf,org
Foundation Alternata:
AJ SheltonManager, IDEA
National Fish and Wildlife Foundation90 New Montgomery Street, Suite 1010
Memonllndum ofAgreement Among COFG and CSlC Page 8 of 11
Hte CDFG:
Matthew Zafonle, Ph.D.Resource Economist
California Department of Fish and GameOffICe of Spill Prevention and Response1700 K Street, Suite 250
Sacramento, California 9581 1TelephOne: (916) 323-4724Facsimile: (916) 324-8829Email: [email protected]
If to CSLC:
Jessica RadarStaff CounselCalifornia State lands Commission100 Howe Avenue, Suite lQO.South
Sacramento, California 95825-8202Telephone: (916) 574-1850Facsimile: (916) 574-1855Email: raderi@s!c.ca.gov
CDFG Alternate:
Steve Hampton, Ph.D.Resoorce Economist
California Department of Fish and GameOffice of Spill Prevention and Response1700 K Street. Suite 250Sacramento, California 95811Telephone: (918) 323-4724Facsimile: (9l6) 324-8829Email: [email protected] .gov
CSLC Alt,mate :
Kathryn ColsonStaff CounselCalifornia Slate Lands Commission100 Howe Avenue. Suite 100-South
Sacramento, California 95825-8202Telephone: (91B) 574-1850Facsimile: (916) 574-1855Email: [email protected]
4. Any change to either the Trustee Agency Representatives or the FoundationRepresentatives shall be communicated in writing to the other Parties 'Nithin ten (10) businessdays of the change .
5. The Trustee Agency Representatives shaM notify the Foundation in writing of theIdentity of the Lead Trustee Agency Representative within ten (10) business days of selectingthe Lead Truslee Agency Representative.
X. MISCELLANEOUS PROVISIONS
1. No Assignment: The Foundation may not assign this Agreement, in whole or inpart, to any indMdual or other legal entity without the prior wrinen approval of the other Parties.
2. Amendments: This Agreement may be amended only in writing agreed to andsigned by all Parties.
3. No Addltionsl Support: In establishing the Account. the Trustee Agenciesassume no obligation to provide further funding or support to the Foundation beyond the term.stated in this Agreement.
4. Compliance with Laws; Insurance: The Foundation agrees to contractuallyrequire that all Recipients comply with all 8 p ~ i C 8 b 1 e Federal. State, and local laws, regulations,and ordinances and secure all appropriate and necessary pubtic or private pemllta andconsents in carrying out Projects funded with amounts from the Account
a . The Foundation agrees to contractually require Recipients to obtain and
maintain appropriate Insurance against liability for injury to persons or property from anyactivities undertaken by sucl'1 Recipients in carrying out Projects funded with amountsfrom the Account.
S.F. Bay ParQ and Recra.Uon AccountMemorandum of Agreemant Among CDFG and CSLC Paga 9 of 11
5. Publicity: At the Trustee Agencies' request, the Foundation agrees to requireRecipients to inClude the Trustee Agencies' names or logos in all press releases, publications,anoual reports, video credits, dedications, and other public commoolcations regard ing any of theProjects funded wtth amounts from the Account
6. Severability; If any provision of this Agreement is held to be unlawful or invalidby any court of law with duly establJshed jurisdic tion over this Agreement, the Parties intend thatthe remainder of this Agreemenl shall remain in fuJI force and effect notwlthstanding theseverance of the unlawful or invalid provision(s).
7. Responsibility(or Conduct: Each Party shall be responsible for theconsequences of its own actions or Inaction, willful misconduct, gross negUgence, andlor breachof obligations in connection with thIs Agreement. and in connection with any wol i ( undertaken in
accordance with this Agreement.
8. Dispute Resolution; The Parties will cooperate in good faith to achieve theobjectives of this Agreement and to avoid disputes. The Parties will use good faith efforts 10
resolve disputes at the lowest organizational level and. if a dispule caMot be so resolved, the
Parties wi. then elevate the dispute to the appropriate offIcials within their respectiveorganizations.
9. Disclaimers: The Foundation shall ensure that all information submitted forpublication arising from any Project funded by the Aceount shall carry the following disclaimer:
The views and conclusions contained in this document are thoseof the authors and should not be inlerpreted as representing theofficial policies or opinions of the State of California or theNational FlSh and Wildlife Foundation. Ally mention of tradenames or commercial products herein does not constitute their"
endOf$ement by the State of California or the National Fish and
W ~ d l j f e Foundation .
10 . No limitation on Agency Responsibilities; Nothing contained in this Agreement
is intended 10 limit the authority of the Trustee Agencies to fulfill their statutory or regulatoryresponsibilitles .
11 . Th is Agreemen t shall not be the basis of any claims. rights, causes of action,challenges or appeals by any person not a Party to this Agreemenl. Nothing in this Agreement
shall be construed to create privity of contract between the Trustee Agencies and any thirdparty(ies), Ineluding Recipients whos8 Projects are funded with amounts from the Account.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by
their respective authorized representati'l8s, intending to be bound legally.
Date: November..ln... 2010 CAUFORNlA DEPARTMENT OF FISH AND GAME
By:S t 8 I ) L d i n ge rAdministratorOffICe of Spill Prevention and Response
Supplemental Environmental Project for San Francisco Bay Herring Stock
Assessment, Management, and Research
Preamble
Whereas, the Stale of Californ ia Departmenl of Fish and Game (D epartment), The SanFrancisco Bay Herring Research Association, and the Regional Water Qualily ControlBoard (RWQCB), San Francisco Bay Region have a shared interest in the heahh andviabilrty of the San Francisco Bay Pacific Herring population, and desire to use this
schedule to work cooperatively in conducting research on that stock of fish in the SanFrancisco Bay; and
VVhereas , there is a need fo r stock assessment. research and management for asustainable San Francisco Bay herring fishery.
Therefore, the San Francisco Bay Herring Research Association and the Departm enl willundertake a Supplementa r Environmental Project (SEP) lor herring research,management, and/or herring stock assessment which shall further the following goats:
(1) Allow and encou rage on ly those activities and uses of marine living resources thaiare sustainable.
(2) Recognize the impor tance to the economy and the culture of California of
sustainable herring fisheries.
(3) Support and promote scienti fic research on San Francisco Bay marine ecosystemsand their components to develop better information on which to base herring fishery
resource management decision s.
(4) Manage herring in San Francisco Bay on the basis of the best avai lab le sc ientificinfonnation and other relevant information.
(5)lnvolve individuals from the commercial fishing industry in herring managementdecisions.
(6) Promote th e dissemination of accurate information concerning the condition of, ormanagement of, San Francisco Bay herring fishery by seeking out the best availableinformation and making il available to the public through the marine resources
management process.
Accordingly , the fo llOWing schedule of activities outlines Ihe specific tasks that may beconsidered for funding under this S EP:
, Herring Stock A. Hydroacoustic assessments of herring schools during the 2011Assessment spawning season and beyond. (Includes worl<shopllraining
session for DFG Biologists using Biosonic gear andhydroacolJstic specialists, metholodgy validation andverification, procurement of equipment for DFG, softwareimprovements to DFG survey platform, etc.)
B. Dala analysis and preparation of report on biom ass
c. S.F. Bay Hening model development by a recognized authorityon population modeling
, i. Compilation of ex isting data and formatting for model input
!ii. Assessment of stock: analysis and yield projections
iii . Peer review of Stock Assessment
iv. Travel for or ientation and DFG training on running of themodel
2. Herring Research in A. Additional Herring Research:
San Francisco Bayj Conduct research agreed 10 by DFG and Herring Research
Association
ii. Conduct studies 10 fiUdata gaps identified by DFG andHerring Research A ssacistion
iii. DFG research vessel maintenance and repair
3. Preparation and A. Public ProcessAdoption of FisheriesManagement Plan (FM P)
ii. Public Scoping Workshops - Workshop Preparation
NOTE: Current funding is (development of ma nagement options) an d meetinginsufficienlto accomplish facilitationth is lask and it will only beconsidered if additional ii. CEQA Documents and FMP writingfunding is secured