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HomeMy WebLinkAboutCalifornia Department of Fish and Wildlife; 2025-03-25;State of California – Department of Fish and Wildlife RIGHT OF ENTRY PERMIT DFW 1061 (NEW 02/27/18) Agency: California Department of Fish and Wildlife Project Title: El Camino Real Widening from Arenal Road to La Costa Avenue, CIP 6051 This Right of Entry Permit (“Permit”) is made and entered into as of March 25, 2025 , between the State of California, acting by and through the California Department of Fish and Wildlife (“State” or “CDFW”), and the City of Carlsbad a city in the State of California, its officers, employees, agents and contractors (the “Permittee”). RECITALS A.The State owns, operates, and maintains Batiquitos Lagoon Ecological Reserve) (the “Property”) in the County of San Diego County, State of California; and B.Permittee has applied to State for permission to access the Property for purposes of carrying out widening of southbound El Camino Real from Arenal Road to La Costa Avenue (proposed project). The proposed project spans approximately 0.65 mile along El Camino Real in the City of Carlsbad, San Diego County, California and involves adding a vehicle travel lane in the southbound direction; bike and pedestrian facilities, including sidewalks and pedestrian bridges; and street improvements, including curb ramps and additional street lighting. The widening of the existing roadway and installation of the pedestrian bridges would require expanding the current footprint outside of the existing right-of-way boundary in some locations. (the “Project”). C.The State desires to accommodate Permittee's application for permission to enter the Property for purposes of the Project, as and to the extent such project is (check one) ☐ultimately described, permitted, approved and conditioned by the environmental document dated DATE, State Clearinghouse No. ________ (the “Environmental Document”) and as may be conditioned by any other regulatory agency having jurisdiction. OR ☒described in the planning/engineering documents for the Project which are attached hereto as Exhibit B (the “Project Designs”)]. TERMS AND CONDITIONS This Permit is made upon and subject to the following terms and conditions: 1.Project Description: By this Permit, State gives permission to Permittee to enter upon those lands legally described and depicted on the attached Exhibit A (the Property) solely for the purpose of the Project, the limits of which are shown on Exhibit A. 2.Permit Subject to Laws and Permits: Permittee shall, at Permittee's sole cost and expense, comply with El Camino Widening Project, Arenal Road to La Costa Avenue, Project No. 6051, Biological Technical Report & Initial Design El Camino Real Roadway Widening Project, Arenal Road to La Costa Attachment A March 25, 2025 Item #3 Page 5 of 15 Docusign Envelope ID: 007C6CD2-3224-4831-A47F-888528EF8ACB State of California – Department of Fish and Wildlife RIGHT OF ENTRY PERMIT DFW 1061 (NEW 02/27/18) Page 2 of 10 Avenue, Project No. CDP2022-0030, HMP2022-0004, HDP2022-0001, SUP2022-0003 FEMA FLOOD ZONE A, SUP2022-0004 EL CAMINO CORRIDOR (CIP NO. 6051) all municipal, state, and federal authorities now in force or which may hereafter be in force pertaining to the Project and use of the Property as provided by this Permit. This Permit is expressly made subject to any and all applicable laws, statutes, codes, regulations, ordinances, orders, requirements, and regulatory permits or approvals, including any conditions of such permits and approvals issued or required to be issued by such regulatory agencies for or in connection with the Project. All such conditions shall be subject to the prior written approval of State. Prior to entering or commencing any work on the Property, Permittee shall obtain all such legally required permits or approvals and submit to the State full and complete copies of the same, including documentation related to or referenced in such permits and approvals, along with the corresponding agency contact and telephone numbers, and related California Environmental Quality Act (“CEQA”) and/or National Environmental Policy Act documentation, if applicable. 3.Term of Permit: This Permit shall only be for the period beginning on March 25, 2025, and ending on March 25, 2028, unless revoked or terminated according to its terms or reasonably extended by written mutual agreement. 4.Consideration: “This Paragraph is intentionally left blank.” 5.Permit Subject to Existing Claims: This Permit is subject to existing contracts, permits, leases, licenses, encumbrances, and claims, as well as all matters of record which may affect the Property. 6.Waiver of Claims and Indemnity: This Permit is made on the express condition that the State is to be free from any and all liability by reason of injury or death to persons or loss or damage to property, from whatever cause, arising out of the use by Permittee, its directors, officers, employees, agents, representatives or contractors (“Permittee’s Parties”) of the Property or any part of it. Permittee, on behalf of itself and each of Permittee’s Parties, waives all claims against the State, its directors, officers, employees, agents, representatives and contractors, for injury (including death), loss or damage caused by, arising out of, or in any way connected with the exercise of this Permit or the Project. Permittee covenants and agrees to protect, save harmless, indemnify, and defend the State, its directors, officers, employees, agents, representatives and contractors from and against any and all claims, losses, costs, expenses, damages or liability (collectively, “Claims”) caused by, arising out of, or in any way connected with the Project, including any CEQA lawsuits against CDFW, any failure on the part of Permittee to fulfill its obligations under this Permit, and any exercise by Permittee of the rights granted by this Permit, except Claims resulting solely from the willful or grossly negligent acts of the State. Permittee will further cause such indemnification and waiver of claims in favor of the State to be inserted in each contract and agreement that Permittee executes for the provision of equipment, materials or services in connection with the Project. 7.Damage to Lands and Property: Permittee shall be responsible for any damage to lands of the State or third parties resulting from installation, operation, and maintenance of the Project, including, but not limited to soil erosion, collapse or subsidence and damage resulting from it. Permittee shall promptly repair and restore to its original condition any property of the State or any third party, including, but not limited to, levees, roads, bridges, ditches, pipelines, water developments, utilities, buildings, and fences that may be damaged or destroyed in connection with the Project. 8.Hazardous Materials: Without limiting the obligations of Permittee under Paragraph 6 of this Permit, Permittee hereby releases and agrees to indemnify, defend, protect, and hold harmless the State from and against any and all Claims (as defined in Paragraph 6 above) arising from or connected with any Hazardous Materials (as defined below) present, alleged to be present, released in, from, or about, or March 25, 2025 Item #3 Page 6 of 15 Docusign Envelope ID: 007C6CD2-3224-4831-A47F-888528EF8ACB State of California – Department of Fish and Wildlife RIGHT OF ENTRY PERMIT DFW 1061 (NEW 02/27/18) Page 3 of 10 otherwise associated with the Project or the Property at any time, except any Hazardous Materials placed, disposed, or released by State. This release and indemnification includes, without limitation, Claims for injury to or death of any person or damage to any property; and the violation or alleged violation of, or other failure to comply with, any Environmental Laws (as defined below). If any action or proceeding is brought against the State by reason of any such Claim, Permittee shall, at the election of and upon written notice from State, defend such action or proceeding by counsel reasonably acceptable to the State or reimburse State for all charges incurred for services of the California Attorney General in defending the action or proceeding. The term “Hazardous Materials” includes, without limitation, any substance, material or waste that is: (a) flammable, explosive or radioactive; (b) a petroleum product or petroleum hydrocarbon, including crude oil, or any product, by-product or fraction thereof; or (c) designated, defined, classified or regulated as a hazardous material, hazardous waste, hazardous or toxic substance, pollutant, contaminant or related material under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. section 9601, et seq.; hereinafter, “CERCLA”); the Resource Conservation and Recovery Act of 1976 (42 U.S.C. section 6901, et seq.; hereinafter “RCRA”); the Toxic Substances Control Act (15 U.S.C. section 2601, et seq.; hereinafter “TSCA”); the Hazardous Materials Transportation Act (49 U.S.C. section 5101, et seq.; hereinafter “HTA”); the Hazardous Waste Control Law (Health & Saf. Code section 25100, et seq.; hereinafter “HCL”); the Carpenter-Presley-Tanner Hazardous Substance Account Act (Health & Saf. Code section 25300, et seq.; hereinafter “HSA”), including the regulations adopted and publications promulgated pursuant to such statutes, or any other applicable Environmental Laws now in effect or enacted after the date of this Permit. The term “Environmental Laws” includes without limitation, CERCLA, RCRA, TSCA, HTA, HCL, HSA and any other federal, state, local or administrative agency statute, code, ordinance, rule, regulation, order or requirement relating to pollution, protection of human health or safety, the environment, or Hazardous Materials. 9.Contractors: Permittee shall incorporate the terms, conditions, and requirements of this Permit when contracting out all or any portion of the work permitted hereunder. Permittee shall be responsible for ensuring that all contractors and subcontractors comply with the terms and conditions of this Permit. Failure of any contractor or subcontractor to abide by the terms and conditions of this Permit shall constitute a default by Permittee (see Paragraph 24) allowing State to terminate this Permit and seek all legal remedies. 10.Labor Code Requirements; Prevailing Wage: Permittee understands and agrees that work performed on the Property may be subject to California Labor Code requirements, which include prevailing wage provisions. For more details, please refer to the Department of Industrial Relations (DIR) website at http://www.dir.ca.gov. Permittee shall pay prevailing wage to all persons employed in the performance of any part of the Project if required by law to do so. 11.Insurance Requirements: As a condition of this Permit, and in connection with its indemnification and waiver of claims for the Project, Permittee will provide, and/or cause its contractors to provide, a policy or policies of insurance as follows: COMMERCIAL GENERAL LIABILITY Permittee shall maintain general liability coverage with limits of not less than $1,000,000 per occurrence and $2,000,000 aggregate annually for bodily injury and property damage liability combined. The policy shall include coverage for liabilities arising out of the Project, Property, operations, independent contractors, products, completed operations, personal and advertising injury, and liability assumed under this Permit as an insured contract. March 25, 2025 Item #3 Page 7 of 15 Docusign Envelope ID: 007C6CD2-3224-4831-A47F-888528EF8ACB State of California – Department of Fish and Wildlife RIGHT OF ENTRY PERMIT DFW 1061 (NEW 02/27/18) Page 4 of 10 The policy must include State of California, the California Department of Fish and Wildlife, and their officers, agents and employees as additional insureds by endorsement, but only insofar as the operations under this Permit are concerned. The additional insured endorsement must be provided with the certificate of insurance. March 25, 2025 Item #3 Page 8 of 15 Docusign Envelope ID: 007C6CD2-3224-4831-A47F-888528EF8ACB State of California – Department of Fish and Wildlife RIGHT OF ENTRY PERMIT DFW 1061 (NEW 02/27/18) Page 5 of 10 AUTOMOBILE LIABILITY Permittee shall maintain motor vehicle liability insurance with limits of not less than $1,000,000 per accident for bodily injury and property damage. The policy shall name the State of California and the California Department of Fish and Wildlife as additional insureds by endorsement with respect to liability arising out of all vehicles owned, hired and non-owned. The additional insured endorsement must be provided with the certificate of insurance. WORKERS’ COMPENSATION Permittee shall maintain statutory workers’ compensation and employer’s liability coverage for all its employees who will be engaged in the performance of the Project, including special coverage extensions where applicable. Employer’s liability limits of $1,000,000 shall be required, and the policy shall include a waiver of subrogation in favor of the State of California and the California Department of Fish and Wildlife. The waiver of subrogation endorsement must be provided with the certificate of insurance. GENERAL REQUIREMENTS Permittee shall ensure that the following general requirements are met: a.Insurance Companies must be acceptable to the Department of General Services, Office of Risk and Insurance Management. b.Coverage needs to be in-force for the complete term of this Permit. If insurance expires during the term of the Permit, a new certificate must be received by the State within thirty (30) days of the expiration date of the existing policy. Any new insurance must meet the requirements of this Permit. c.Permittee shall notify the State within five business days of Permittee’s receipt of any notice of cancellation or non-renewal of any insurance required by this Permit. d.Permittee is responsible for any deductible or self-insured retention contained within the insurance program. e.In the event Permittee fails to keep in effect at all times the specified insurance coverage, the State may, in addition to any other remedies it may have, terminate this Permit upon the occurrence of such event, subject to the provisions of this Permit. f.Any insurance required to be carried shall be primary, and not excess, to any other insurance carried by the State. g.If Permittee is self-insured in whole or in part as to any of the above described types and levels of coverage, Permittee shall provide State with written acknowledgment of this fact at the time of the execution of this Permit. The State may require financial information to justify Permittee’s self-insured status. If, at any time after the execution of this Permit, Permittee abandons its self-insured status, Permittee shall immediately notify State of this fact and shall comply with all of the terms and conditions of this Insurance clause pertaining to policies of insurance in regard to those types and levels of insurance. It is agreed that State shall not be liable for the payment of any premiums or assessments on the required insurance coverage. FIRE AND CASUALTY DAMAGES. State will not keep improvements (if any) which are constructed or installed by Permittee under the provisions of this Permit insured against fire or casualty, and Permittee shall make no claim of any nature against State by reason of any damage to the business or property of Permittee in the event of damage or destruction by fire or other cause, arising other than from or out of gross negligence or willful misconduct of agents or employees of the State in the course of their employment. March 25, 2025 Item #3 Page 9 of 15 Docusign Envelope ID: 007C6CD2-3224-4831-A47F-888528EF8ACB State of California – Department of Fish and Wildlife RIGHT OF ENTRY PERMIT DFW 1061 (NEW 02/27/18) Page 6 of 10 12.Reservation of Rights: State reserves the right to use the Property in any manner, provided such use does not unreasonably interfere with Permittee's rights herein. 13.Access Limits and Special Conditions: Access to the Property and use of roads/trails shall be limited to the route(s) designated by State and as depicted in Exhibit A. Contractor will work from El Camino Real only and remain within temporary construction easement and city right-of-way. 14.Notice of Work: Prior to any entry upon the Property for any of the purposes hereinabove set forth, Permittee shall notify the CDFW staff person named below (the “CDFW Representative”) in writing at least three (3) business days prior to commencement of work. Permittee shall also notify the CDFW Representative in writing at least forty-eight (48) hours in advance of any change in the project schedule or prior to cessation of work. Batiquitos Lagoon Ecological Reserve/ Gabriel Peñaflor 3883 Ruffin Road, CA 92123 619-467-4249 Gabriel.Penaflor@wildlife.ca.gov 15.Limits of Work: In no event shall this Permit authorize work in excess of, contrary to, or that varies from temporary construction easement” or the terms and conditions of any regulatory agency permit or approval or any other Project documents in Exhibit A and Exhibit B, approved by State. Under no circumstances, whether or not permitted or authorized by any regulatory agency permit or approval, shall work exceed that which is reasonably necessary to carry out the purpose of the Project or extend beyond the Project boundaries as depicted in Exhibit A. The State has issued this Permit in its capacity as the owner of the Property. Nothing in this Permit constitutes regulatory approval of the Project by the State or CDFW. 16.Special Hazards: This Paragraph is intentionally left blank. 17.Public Safety: Permittee shall erect orange plastic temporary construction fencing prior to commencement of work to prohibit public access to the construction zone, if applicable. Permittee shall remove such fencing within two (2) days of the completion of work. Permittee shall, or shall cause its contractors or subcontractors to take any and all other necessary and reasonable steps to protect the public from harm due to Project activities. 18.Compliance with Monitoring and Mitigation Measures: Natural resource monitoring and mitigation measures shall be completed in consultation with and to the satisfaction of the CDFW Representative by applicable dates stated in the permit, approval, or other Project document under which the measure is required, if applicable. Activities conducted on the Property authorized by this Permit will comply with all state and federal laws, including but not limited to the California Endangered Species Act (Fish and Game Code section 2808, et seq.), Fish and Game Code section 1600, et seq., and the California Environmental Quality Act ((Public Resources Code 21000–21189). Unless otherwise authorized by this Permit, all activities conducted on the Property will comply with applicable Department Land Regulations set forth in: Sections 550 and 630, Title 14, California Code of Regulations. State will advise Permittee if any new special status species, threatened/endangered species protocols, or other resource issues are identified on the Property. Permittee shall consult with the State to determine the appropriate level of avoidance/mitigation necessary to protect the resource(s) during future work. March 25, 2025 Item #3 Page 10 of 15 Docusign Envelope ID: 007C6CD2-3224-4831-A47F-888528EF8ACB State of California – Department of Fish and Wildlife RIGHT OF ENTRY PERMIT DFW 1061 (NEW 02/27/18) Page 7 of 10 19.Restoration of Property: Permittee shall be responsible for restoration, repair, and revegetation of the Property as specified in the “Project Designs”] in consultation with, and to the satisfaction of, the CDFW Representative, unless otherwise specified, no later than 180 days after completion of the Project. These obligations shall survive the expiration or termination of this Permit 20.Right to Halt Work: The State reserves the right to halt work and require Permittee to carry out restoration, repair, and mitigation measures at any time, with or without prior notice to Permittee, in the event the State determines that any provision contained herein is violated, or any other threat to the Property or its resources, or the health and safety of any person(s) on the Property arises. 21.Use Restrictions: The use of the Property by Permittee and/or Permittee’s Parties shall be restricted to the daytime hours between sunrise and sunset on a day-by-day basis, unless otherwise approved in advance in writing by State. Activities on the Property shall be conducted only in a manner consistent with this Permit that will not interfere with the orderly operation of the Property. Permittee agrees to prohibit any disorderly conduct and/or contraband. Contraband includes, but is not limited to: beer, alcoholic beverages, marijuana, illegal and illicit drugs, firearms, explosives, and weapons. Use of specified roads and trails (as identified on Exhibit A) by any motorized vehicle (including but not limited to motorcycle, car, truck, jeep, tractor, or all-terrain vehicle) shall be limited to only the Permittee and Permittee’s Parties for patrol, maintenance or repair purposes only and shall be subject to all other conditions and/or restrictions of this Permit. Permittee shall not use or allow the Property to be used, either in whole or in part, for any purpose other than as herein set forth, without the prior written consent of CDFW. 22.State's Right to Enter: At all times during the term of this Permit, there shall be and is hereby expressly reserved to State and to any of its agencies, contractors, agents, employees, representatives or licensees, the right at any and all times, and any and all places, to enter upon said Property to survey, inspect, or perform any other lawful State purposes. Permittee agrees to not interfere with State's right to enter. 23.Protection of Property: Permittee shall protect the Property, including all improvements and the natural resources thereon, at all times at Permittee's sole cost and expense, and Permittee shall strictly adhere to the following restrictions: (a) Permittee may not place or dump garbage, trash or refuse anywhere upon or within the Property, except in self-contained trash receptacles that are maintained to State's satisfaction by Permittee. (b) Permittee may not commit or create, or suffer to be committed or created, any waste, hazardous condition and/or nuisance to occur upon the Property. (c) Permittee may not cut, prune or remove any native trees or brush upon the Property, except for routine fire protection, trail clearing, maintenance or the elimination of safety hazards, without first obtaining written permission from the CDFW Representative. March 25, 2025 Item #3 Page 11 of 15 Docusign Envelope ID: 007C6CD2-3224-4831-A47F-888528EF8ACB State of California – Department of Fish and Wildlife RIGHT OF ENTRY PERMIT DFW 1061 (NEW 02/27/18) Page 8 of 10 (d) Permittee may not disturb, move or remove any rocks or boulders upon the Property except for routine fire protection, trail clearing, maintenance or the elimination of safety hazards, without first obtaining written permission from the CDFW Representative. (e) Permittee may not grade or regrade, or alter in any way, the ground surface of the Property, without first obtaining written permission from the CDFW Representative. (f) Permittee may not bait, poison, trap, hunt or engage in any other activity which results in the killing, maiming or injury of animals or wildlife upon the Property, without first obtaining written permission from the CDFW Representative. (g) Permittee shall not generate, use, store, release, or dispose of Hazardous Materials on the Property, or authorize or permit any of the same by any third party. (h) Permittee shall exercise due diligence in the protection of the Property against damage or destruction by fire, vandalism or other cause. 24.Default: In the event of a default or breach by Permittee of any of the terms or conditions set forth in this Permit, State may at any time thereafter, without limiting State in the exercise of any right or remedy at law or in equity which State may have by reason of such default or breach: (a) Maintain this Permit in full force and effect and recover the consideration, if any and other monetary charges as they become due, without terminating Permittee's right to use of the State Property, irrespective of whether Permittee shall have abandoned the Property. (b) Terminate this Permit whereupon Permittee shall immediately vacate and surrender possession of the Property to State. In such event, State shall be entitled to recover from Permittee all damages incurred by State by reason of Permittee's default including, but not limited to, the following: (i) any amount necessary to compensate State for all the detriment proximately caused by Permittee's failure to perform its obligations under this Permit or which in the ordinary course of events would be likely to result therefrom; plus (ii) at State's election, such other amounts in addition to or in lieu of the foregoing as may be permitted from time to time by applicable law. Upon termination of this Permit, State shall have the right to make any reasonable repairs, alterations, restoration, or modifications to the Property, which State, in its sole discretion, deems reasonable and necessary for the State's use of the Property. 25.State's Right to Cure Permittee's Default: At any time, after Permittee is in default or material breach of this Permit, State may, but is not required to, cure such default or breach at Permittee's cost. If State at any time, by reason of such default or breach, pays any sum or does any act that requires the payment of any sum, the sum paid by State shall be due immediately from Permittee to State at the time the sum is paid by State, and if received from Permittee at a late date shall bear the maximum interest allowed by California law from the date the sum is paid by State until State receives payment from Permittee. 26.Revocation of Permit: State shall have the absolute right to revoke this Permit for any reason upon ten (10) days written notice to Permittee. Written notice to Permittee may be accomplished by electronic or facsimile transmission, and the notice period set forth in this paragraph shall begin on the date of the written notice. If Permittee is in breach of the Permit or owes money to the State pursuant to this Permit, any prepaid monies paid by Permittee to State shall be held and applied by the State as an offset toward March 25, 2025 Item #3 Page 12 of 15 Docusign Envelope ID: 007C6CD2-3224-4831-A47F-888528EF8ACB State of California – Department of Fish and Wildlife RIGHT OF ENTRY PERMIT DFW 1061 (NEW 02/27/18) Page 9 of 10 damages and/or amounts owed. Nothing stated herein shall limit the State's exercise of its legal and equitable remedies. All written notices to Permittee shall be sent to the following address: City of Carlsbad Brandon Miles, Project Manager 1635 Faraday Avenue Carlsbad, CA 92008 760.579.3321 Brandon.Miles@carlsbadca.gov 27.Recovery of Legal Fees: If any action is brought by State to enforce or interpret any provision of this Permit or to restrain the breach of any agreement contained herein, or for the recovery of possession of the Property, or to protect any rights given to the State against Permittee, and if the State shall prevail in such action on trial or appeal, Permittee shall pay to State such amount in attorney's fees in said action as the court shall determine to be reasonable, which shall be fixed by the court as part of the costs of said action. 28.Voluntary Execution and Independence of Counsel: By their respective signatures below each party hereto affirms that they have read and understood this Permit and have received independent counsel and advice from their attorneys with respect to the advisability of executing this Permit. 29.Reliance on Investigations: Permittee accepts this Permit, and the Property to which it pertains, in its as-is condition and has made such investigation of the facts pertaining to this Permit and all the matters pertaining thereto as Permittee deems necessary. 30.Entire Agreement: The parties further declare and represent that no inducement, promise or agreement not herein expressed has been made to them and this Permit contains the entire agreement of the parties, and that the terms of this agreement are contractual and not a mere recital. 31.Warranty of Authority: The undersigned each hereby represents that he or she has the authority to, and by signing this Permit does, bind the person or entity on whose behalf and for whom they are signing this Permit and the attendant documents provided for herein, and this Permit and said additional documents are, accordingly, binding on and enforceable against said person or entity. 32.Assignment: This Permit shall not, nor shall any interest herein, be assigned, mortgaged, hypothecated, or transferred by Permittee, whether voluntary or involuntary or by operation of law, nor shall Permittee let or sublet or grant any license of permit with respect to the use and occupancy of the Property or any portion thereof, without the prior written consent of State. 33.Choice of Law: This Permit will be governed and construed by the laws of the State of California. IN WITNESS WHEREOF, the undersigned have executed this Permit effective as of the date first set forth above. STATE OF CALIFORNIA CITY OF CARLSBAD March 25, 2025 Item #3 Page 13 of 15 Docusign Envelope ID: 007C6CD2-3224-4831-A47F-888528EF8ACB State of California – Department of Fish and Wildlife RIGHT OF ENTRY PERMIT DFW 1061 (NEW 02/27/18) Page 10 of 10 California Department of Fish and Wildlife By: By: Print Name: Erinn Wilson-Olgin Print Name:Keith Blackburn Title:Regional Manager Title: Mayor, City of Carlsbad March 25, 2025 Item #3 Page 14 of 15 Docusign Envelope ID: 007C6CD2-3224-4831-A47F-888528EF8ACB