HomeMy WebLinkAboutLos Angeles, City of / Bd of Harbor Commissioners; 1987-10-14;FIRST AMENDMENT
TO THE
AGREEMENT AMONG THE CITY OF LOS ANGELES,THE CITY OF CARLSBAD,THE
CALIFORNIA DEPARTMENT OF FISH AND GAME,THE CALIFORNIA STATE LANDS
COMMISSION,THE NATIONAL MARINE FISHERIES SERVICE,AND THE UNITED STATES
FISH AND WILDLIFE SERVICE,TO ESTABLISH A PROJECT FOR
COMPENSATION OF MARINE HABITAT LOSSES INCURRED
BY PORT DEVELOPMENT LANDFILLS WITHIN THE
HARBOR DISTRICT OF THE CITY OF LOS ANGELES
BY MARINE HABITAT ENHANCEMENT AT BATIQUITOS LAGOON
This FIRST AMENDMENT,made the 13th day of July,2010 is entered into by the UNITED
STATES OF AMERICA,acting by and through the FISH AND WILDLIFE SERVICE,UNITED
STATES DEPARTMENT OF INTERIOR "FWS"and the NATIONAL MARINE FISHERIES
SERVICE,NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION,UNITED STATES
DEPARTMENT OF COMMERCE "NMFS";the STATE OF CALIFORNIA acting by and through
the DEPARTMENT OF FISH AND GAME "CDFG",the STATE LANDS COMMISSION
"SLC";the CITY OF CARLSBAD "CARLSBAD";and the CITY OF LOS ANGELES,acting by
and through the BOARD OF HARBOR COMMISSIONERS "BOARD".
I.WHEREAS,the parties entered into the "Agreement among The City of Los Angeles,
CARLSBAD,CDFG,SLC,NMFS,and FWS,to Establish a Project for Compensation of Marine
Habitat Losses Incurred by Port Development Landfills Within the Harbor District of the City of Los
Angeles by Marine Habitat Enhancement at Batiquitos Lagoon""Agreement",which Agreement was
made the 14th day of October 1987;and
II.Whereas,the parties desire to amend the said Agreement in certain respects.
NOW,THEREFORE,the parties hereto agree as follows:
SECTION 1.Amendments to the Agreement.The Agreement shall be amended as follows:
a Replace Section 10,with the following:
10.Project Management Responsibilities.Upon Construction Certification,CDFG
agrees to assume responsibility for monitoring and general maintenance of the Project.
CDFG may contract out these responsibilities and,upon the approval of the parties
hereto,may assign these responsibilities.A Steering Committee consisting of
representatives from CARLSBAD,CDFG,SLC,NMFS,and FWS shall be established
to guide the implementation of timely and efficient tidal inlet maintenance dredging
inlet dredging.The Steering Committee will meet annually at a minimum and more
often as needed during the planning and implementation of a dredge event.Decisions of
the Steering Committee shall be made by consensus whenever possible.Should the
Steering Committee be unable to reach consensus,the decision shall be made by CDFG,
as landowner and Maintenance Account holder,and/or SLC as landowner,depending
on ownership affected.Transfer of inlet dredging responsibility and funds from the
Maintenance Account to offset all reasonable associated costs may be made from
CDFG to another entity acceptable to the Steering Committee as long as sufficient
funds to accomplish inlet dredging remain in the Maintenance Account pursuant to
subsections a,b,c.1 and c.2 below or through other funding sources.Should
funding be insufficient for project maintenance as envisioned under this Agreement,the
Steering Committee shall seek additional funding sources to maintain the Project.
CARLSBAD agrees that it shall use its best efforts in enforcement of local
environmental and planning ordinances with respect to property owners within its
jurisdiction,and in working with other local jurisdictions,to minimize the amount of
sediment transported to the Lagoon by upstream runoff within the Lagoon's watershed
area.
b Change the designation of Section 10c to Section "10 c.1."
c Insert a new Section 10 c.2,which shall read as follows:
c.2 Alternative Funding Mechanism.Should the Maintenance Account described in
Sections 10 a and 10 b prove to be insufficient to perform required inlet dredging as
well as other maintenance activities as described in Section 10e for the first thirty 30
years following Construction Certification,then the Steering Committee may submit a
written request to BOARD or BOARD's designee that all,or a portion of the funds in
the Investment Account be transferred to the Maintenance Account and used for the
purpose of maintaining an open inlet and/or other maintenance activities.This
provision does not preclude the participation of other entities in funding maintenance
activities through the deposit of appropriate funds into the Maintenance Account
including but not limited to the purchase of dredged sand from the Lagoon.
SECTION 2.No Other Changes to the Agreement.Except as provided in Section 1 above,no
other changes to the Agreement are made by this First Amendment.The Agreement,as herein
amended,shall remain in full force and effect in accordance with its terms.
SECTION 3.Executed Counterparts.The signature pages of this First Amendment to the
Agreement are being executed in counterparts.When all parties have signed,all executed counterparts
taken together shall constitute one and the same instrument.The NMFS shall be responsible for
receiving and retaining the originally executed signature pages of each party,for dating this First
Amendment to the Agreement as ofthe latest date upon which it is executed as among the signatories
hereto,and for providing a copy of the dated and executed Agreement to each of the parties.
IN WITNESS WHEREOF,the parties have entered into this Agreement effective as of the date
first written above.
[Six signature pages in executed counterparts follow]
ELES,by its Board
Dated:7/I/10
E cutive Director
Attest:
_________________________
Secretary
0 FORMAPPROVE
,2010
CARMEN A RUTANICH,City Attorney
By
Estel
CITY OF CARLSBAD
Date MAYOR
CALIFORNIA STATE LANDS COMMISSION
Date EXECUTIVE OFFICER
CALIFORNIA DEPT.OF FISH AND GAME
Date DIRECTOR
NATIONAL MARINE FISHERIES SERVICE
Date REGIONAL ADMINISTRATOR
U.S.FISH AND WILDLIFE SERVICE
_________________
THE CITY
of Harbor
Date FIELD SUPERVISOR
CITY OF LOS ANGELES,acting by and
through its Board of Harbor Commissioners
Date EXECUTIVE DIRECTOR
,4/2
CITY OF CARLSBAD
Dat A 0
CALIFORNIA STATE LANDS COMMISSION
Date EXECUTIVE OFFICER
CALIFORNIA DEPT.OF FISH AND GAME
Date DIRECTOR
NATIONAL MARINE FISHERIES SERVICE
Date REGIONAL ADMINISTRATOR
U.S.FISH AND WILDLIFE SERVICE
Date FIELD SUPERVISOR
CITY OF LOS ANGELES,acting by and
through its Board of Harbor Commissioners
Date EXECUTIVE DIRECTOR
CITY OF CARLSBAD
Date MAYOR
`Lj°CALIFORNIA STATE LANDS COMMISSION
D te EXECUTIVE OFFICER
CALIFORNIA DEPT.OF FISH AND GAME
Date DIRECTOR
NATIONAL MARiNE FISHERIES SERVICE
Date REGIONAL ADMINISTRATOR
U.S.FISH AND WILDLIFE SERVICE
Date FIELD SUPERVISOR
CITY OF LOS ANGELES,acting by and
through its Board of Harbor Commissioners
Date EXECUTIVE DIRECTOR
CITY OF CARLSBAD
Date MAYOR
CALIFORNIA STATE LANDS COMMISSION
Date EXECUTIVE OFFICER
CALIFORNIA DEPT.OF FISH AND GAME
Date DIRECTOR
NATIONAL MARINE FISHERIES SERVICE
Date REGIONAL ADMINISTRATOR
U.S.FISH AND WILDLIFE SERVICE
Date FIELD SUPERVISOR
CITY OF LOS ANGELES,acting by and
through its Board of Harbor Commissioners
Date EXECUTIVE DIRECTOR
CITY OF CARLSBAD
Date MAYOR
CALIFORNIA STATE LANDS COMMISSION
Date EXECUTIVE OFFICER
CALIFORNIA DEPT.OF FISH AND GAME
Date DIRECTOR
NATIONAL MARINE FISHERIES SERVICE
Date REGIONAL ADMINISTRATOR
U.S.FISH AND WILDLIFE SERVICE
Date FIELD SUPERVISOR
CITY OF LOS ANGELES,acting by and
through its Board of Harbor Commissioners
Date EXECUTIVE DIRECTOR
CITY OF CARLSBAD
Date MAYOR
CALIFORNIA STATE LANDS COMMISSION
Date EXECUTIVE OFFICER
CALIFORNIA DEPT.OF FISH AND GAME
Date DIRECTOR
NATIONAL MARINE FISHERIES SERVICE
Date REGIONAL ADMINISTRATOR
U.S.FISH AND WILDLIFE SERVICE
Date FJSJJ?ER
,
Agreement Among
The City of Los Angeles,
The City of Carlsbad,
The California Department of Fish and Game,
The California State Lands Commission,
The National Marine Fisheries Service, and
The United States Fish and Wildlife Service.
To Establish a Project for Compensation
of Marine Habitat Losses
Incurred By Port Development Landfills
Within the Harbor District of the City of Los Angeles
By Marine Habitat Enhancement at Batiquitos Lagoon
\
WOHLI )IUU LA
AL;REEMENTl4!4mG THE CITY OF IC6 ANGELES, THE CITY OF cA#LsBAD,
THE CALmRNIA STATE IAM36 cJ3flMIssIoN,
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THE CALIFORNIA DEP- OF FISH AND GAME,
THE NATIONAL MARlcNE FISIBRIES SERVICE, AND
THE UNITED STATES FISH AMD WILDLIFE SEEWICE. To
ESTABLISH A PRaJECT FOR aMPENSATION
OF MARINE HABITAT lass=
INCURRED BY POKl! DEWELOPMF" LAMDFILLS WITHIN THE HM?BOEt DISTRICT OF THE CITY OF Ixxs ANQZES
BY MARINE HABITAT EWN3BEW AT BATIQUITOS LAaooN
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IC'
THIS AGREEWW is entered into by the UNITED STATES OF AMERICA,
Ztbg by and through the FISH AND WILD- SERVICE, WTED S'lXCES
DEPAKIMEIW OF THE I"ERI0R ( "I") and the NATION?& MiRINE FISHERIES
SERVICE, MITIONAG OCEANIC AND AlMosHIERIC ADMINISTRATIm, UNITED
STA- DEP- OF CCME!XX ("M?S"); the STATE OF CALIEURNIA, *
acting by and through the DEPARTMENT OF FISH AND GAME ("CDFG") and the STATE LANDG CCMMISSION ("SIC") ; the CITY OF CZWSBAD
("CARZ-SBAD"); and the CITY OF IOS ANGELES, aCtirag by and through the rn OF HARBOR cxxMISSIoNERs (930ARD").
I. necessary develapnent of the brt of Us Angeles, consistent with the plblic trust for navigation, carmerce, and fisheries including the creatim of new land in the Harbor District of the City of IDS
Wgeles ( "Harbr District") by landfill; and
I1 . mandates, in this matter, the conservation, protection, and enhancenent of marine fish and migratnry birds and their habitats, including the planning of biological loss avoidance, minimization,
and canpensation; ard the EMFS has as its primary mandate, the conservation, pro-tion, and enhan-t of marine fisheries resources, includbq the planning of biological loss midance, minimization, and cunpensation; and
I11 . regulation psuant b the California coastal Act and Federal regulation plrsuant to the Rivers and Ehrbrs Act d the Clean Wter
Act; and
N.
Pipeline & Transportation Cunpany ("Pacific Texas") contemplate an imninent harbor developnent within the Harbor District, misting of a landfill totalling approXimately 106 acres at an average elevation
WHEREAS, the BOARD is authorized to foster the orderly and i
WHEREAS, the nvs and the CDFG have as their primary c
c
WHEREAS, port developnent landfills are subject to State
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WHEREAS, the EJOARD and its tenant, the Pacific & Texas
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of +20 feet M-LW (which is equivalent to 110 acres above mean high
water) as permitted by Corps of Engineers Permit No. 85-97 and Cal iforni a Coastal Commission Permit No. 5-85-623-A (the "Pacific Texas Landfill" or "Landfill"); and
V. WHEREAS, the Pacific Texas Landfill and other harbor landfills will permanently eliminate marine fish and wildlife habitat values that FWS, NMFS and CDFG recommend be compensated by creation of equivalent marine fish and wildlife habitat values maintained on a permanent basis; and
VI. WHEREAS, the parties intend that habitat loss compensation for the impacts on the marine environment be provided in advance of or concurrently with the habitat losses predicted fran harbor a landfills; and
VII. fish and wildlife habitat values in advance of or concurrently with the loss requires a procedure whereby habitat losses which will be incurred by specified landfill development in the Harbor District, including the Pacific Texas Landfill, could be charged against the habitat credits ; and
VIII. value within the Harbor District to offset large-scale habitat losses within the Harbor District is infeasible; and
IX. WHEREAS, since shallow, estuarine coastal embayment habitat in Southern California, with its relatively high value to marine fishes and migratory birds, has been reduced in area at a greater rate than that of deep water habitat, NMFS, CDFG, and FWS judge that compensation for adverse impacts upon the marine ecosystem should emphasize the creation of shallow water, coastal embayment habitat; and
X. WHEREAS, FWS, NMFS, CDFG, CARLSBPD, and BOARD have identified Batiquitos Lagoon, within the City of Carlsbad, County of San Diego, California (the "Lagoon11), as an appropriate location for creation of habitat values to offset the habitat losses within the Harbor District; and
XI. Section 31000 et seq., the State Coastal Conservancy has described a proposed project for the physical alteration of the Lagoon to create fish and wildlife habitat by restoring tidal influence, recontouring the Lagoon bottan, control ling causes of sedimentation through structural facilities, maintaining the Lagoon as altered, and other actions (the "Lagoon Enhancement Project" or "Project") as general ly and conceptually described in the draft Batiquitos Lagoon Enhancement Plan (the "Enhancement Plan" or 11Plan8t) and which are mor specifically described in the excerpted sections of the P attached hereto as Exhibit "A" and incorporated herein by this reference ; and
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WHEREAS, the parties concur that creation of appropriate
WHEREAS, the parties concur that creation of new habitat
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WHEREAS, pursuant to California Public Resources Code
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XII. WHEREAS, CARLSBAD is the local government with jurisdiction
over the Lagoon and rmch of its watershed area, and desires to assist in expediting the enhancement of the Lagoon; and
XIII. the most appropriate agency to design and construct the Lagoon Enhancanent Project, and to obtain the necessary property rights for construction and maintenance of the Project, (2) SLC is the most appropriate agency to hold the necessary property rights for construction and maintenance of the Project, and (3) CDFG is the most appropriate agency to assume responsibility Yor management, operation, maintenance and monitoring of the Project upon completion of construction. NOW, THEREFORE, IT IS AGREED THAT: * 1. Short Description of Project. The Project, understood to be the Preferred Alternative of the Enhancement Plan if undertaken after completion of environmental analysis pursuant to Sections 6(e) and 13 below, shall be designed, constructed, operated and maintained in accordance with Exhibit A. The Project, as defined herein, includes the envi ronnental documentation, design, permit applications, property acquisition, construction, monitoring and maintenance activities necessary to implement the Plan, including: acquisition of property interests in the Lagoon (as described in Section 3, below); (2) the physical reconfiguration of the Lagoon and Lagoon bottom through dredging and excavation as required to restore tidal inflows and aid in maintaining an open Lagoon mouth; (3) creation of new intertidal and subtidal habitats (available for marine habitat loss compensation as set forth in Section 12 below;
(4) construction of sediment control facilities including protection of the riparian habitat in Encinitas Creek drainage in order to control sediment in the Lagoon (5) provision of a managed freshwater marsh to preserve like habitat; (6) construction of California least tern nesting sites, including fences, to preserve like habitat; (7) disposal of dredged and excavated material by technical ly feasible, environmentally acceptable and cost-effective methods; (8) monitoring activities to determine the condition of the constructed Lagoon on a regular basis, and (9) necessary maintenance activities. The Project, as defined herein, does not include portions of the 0 Enhancement Plan which recommend nonstructural measures for sediment control or which describe construction or maintenance of public access facilities (bike path, trails, parking, interpretive facilities, viewpoints, bridge crossing, etc.) ; provided however, that these public access facilities will be analyzed in the envirormental documentation for the Project. It is estimated that the Project will create the following acreages of habitat type within the 596 acre wetlands area of the Lagoon: subtidal habitat (-2.5 feet to -8.0 feet MSL), 220 acres; unvegetated intertidal habitat (-2.5 feet to +2.5 feet MSL), 170 acres; salt/brackish marsh, 139 acres; freshwater marsh, 33 acres; and least tern nesting sites, 34 acres. Suitable sandy material dredged from the Lagoon to create said acreages shall be used to replenish beaches in the City of Carlsbad adjacent to the Lagoon property, if permitted and
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WHEREAS, the parties have determined that (1) CARLSBAD is
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economically feasible, and as will be described in Project's
envi romental documentation and design work.
2. Lead Agency for CEQA Compliance and Permits. CARLSBAD shall be the lead agency for canpliance with the California Environmental Quality Act ("CEQA") and shall be responsible for obtaining all pemi ts and approvals necessary for Project's construction. In accordance with this Agreement and the provisions of Exhibit "B," attached hereto, BOAB will provide necessary resources to allow CARLSBAD to meet said obligations. shall cooperate with CARLSBAD in supporting applications for such permits and approvals. CEQA work shall be coordinated with the Army Corps of Engineers (hereinafter IICorps"), the lead agency for the environmental work for the Project under the National Environmental Pol icy Act (ItNEPA").
3. Property Acquisition. CARLSBAD shall be responsible for obtaining fee title or permanent easements sufficient to allow
CARLSBPO to enter the property and conduct whatever surveys and other actions necessary to accomplish construction of the Project and to assure maintenance and monitoring of the Lagoon as fish and wildlife habitat in perpetuity as described in the Enhancement Plan. Such land use constraints shall run with the title of the land. Physical construction of the Lagoon Enhancement Project shall not commence until SLC, CDFG and BOARD have determined that the appropriate land interest ("Land Interest") has been obtained by CARLSBAD and transferred to the SLC; provided however, that if BOARD authorizes construction to begin after an order of immediate possession has been obtained, then BOARD and CARLSBAD agree not to abandon the condemnation action and the transfer of the Land Interest to SLC will
be finalized on canpletion of the condemnation action. acquires the necessary Land Interest, the cost of such acquisition shall first be approved by BOARD.
Any Land Interest acquired and capital improvements constructed thereon as well as all other capital improvements constructed as part of the Lagoon Enhancement Project shall be held in trust for the People of California as Public Trust assets without regard to the source of the monies used for their acquisition or construction, and legal title to such assets shall become vested in the SLC.
The parties acknowledge it is their intent that the Project will provide, in perpeQity, an enhanced fish and wildlife habitat in Batiquitos Lagoon. The SLC shall issue to CDFG, for the maximum period allowed by law, a lease over the property covered by the Land Interest it holds to allow management and continued maintenance of Project. property covered by the Land Interest in order to carryout construction hereunder. However, if CARLSBAD is not able to acquire the Land Interest by a purchase or dedication in a timely way, the BOAN may authorize construction to begin if an order of immediate possession is obtained after filing of the appropriate condemnation
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FWS, NMFS, CDFG, SLC, and BOARD
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CDFG shall provide CARLSBPD with a license to enter the
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action; provided however, if the BOARD determines that significant issues exist in the condemnation proceeding which could result in an award in excess of the amount BOARD is willing to approve for such Land Interest, then construction will not canmence until the issues are resolved to the satisfaction of BOARD. In that event the parties hereto agree to consider extending the time limits for the commencement of construction in accordance with the provisions of Section 6(b) by the time required to achieve such resolution. If the BOARD does not elect to proceed because of anticipated costs, the project shall be deemed cancelled pursuant to Section 14(b) and the provisions of Section 15 shall apply.
4. Lead Agency for Project Construction. Design and construction of the Project, including the preparation of any addi tional sediment sampling, appropriate archaeological survey, environmental documentation, design and engineering services and construction, shall be done by CARSBAD in consultation with CDFG, FWS, NMFS and Corps, shall be in substantial conformance with the Enhancenent Plan, and shall be supported as further provided in this Agreement and in Exhibit "B'l, attached hereto, by the BOARD.
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* 5. Project Funding.
(a) BOAR) and/or Pacific Texas shall provide necessary funds for design, construction and maintenance of the Project including: (1) sediment sampling, appropriate archaeologic survey, environmental documentation, prel imi nary design plans , necessary engineering studies and preliminary cost estimates, (col lectively referred to as "Preliminary Design"); said Preliminary Design shall be in sufficient detail to: clearly demonstrate the feasibility of,
and provide an estimate of the costs of constructing Project; provide information for preparation of the necessary envi ronmental documents and provide specific direction for preparation of final plans and specifications necessary for Project's construction and maintenance; (2) required activities for obtaining all permits and approvals necessary for construction of the Project (col lectively referred to as "Permits and Approvals"); (3) required activities for obtaining the Land Interests; (4) Project final design (plans and specifications) , construction and construction management; and (5) monitoring and maintenance of the constructed Project as described in Section 10, below.
It is understood that the funding obligations of Pacific Texas under this Agreement shall be fully satisfied by deposit of up to $20 million into the Escrow Account pursuant to Section 9(a) below. In accordance with California Coastal Commission Permit No. 5-85-623-A, Pacific Texas shall initially deposit $15 million into said Escrow Account. If Project Manager, as described in Exhibit B, determines that additional funds are necessary, Pacific Texas shall deposit up to an additional $5 million. BOARD shall be obligated to provide additional funds in excess of $20 million required under this Agreement, including providing additional funds into the Escrow
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Account, subject to its right to elect not to proceed pursuant to
Section 6(c), 6(e) and 6(g), below. pursuant to one of these sections, its funding obligations hereunder If BOARD elects not to proceed * shall be terminated.
(b) If the Pacific Texas Landfill is not constructed in the Harbor District, BOARD shall have the right, but not the obligation, to proceed with the Project pursuant to this Agreement. BOARD will fund any remaining necessary work out of the Harbor Revenue Fund in accordance with Section 9(f). described herein and in Section 9(a) shall not be required.
6. Project Schedule.
(a) All parties hereto shall perform their obligations hereunder with all due speed so as to facilitate progress of the Project through Project's Construction Certification pursuant to subsection (k), below.
(b) expeditious manner so that Construction Certification pursuant to subsection (k), below, occurs not later than four (4) years fran the effective date of this Agreement. It is further the intent of the parties that physical construction of the Project shall begin no later than thirty-six (36) months from the effective date of this Agreement as defined in Section 16, below. If construction cannot begin within said time, the Project shall be deemed cancelled and the provisions of Section 15, below, shall apply, unless CDFG, FWS, and NMFS agree in writing to an extension of this time limit. construction cannot begin within said time, CDFG, FWS and NMFS agree to consider unforeseen events beyond the control of CARLSBAD including, but not limited to, permits, land interests, CDFG, FWS and NMFS review, etc. in granting such written extension.
(c) The scope of work of the consultant undertaking the Prel imi nary Design will require the consultant to provide CARLSBAD,
BOARD, CDFG, FWS, SLC and NMFS with an estimate of the cost of construction for the Project and with an estimate of the expected annual costs of maintaining the Lagoon as described in Section lO(e), below. Within forty-five (45) days of receipt of these estimates, BOARD shall determine and notify a1 1 other parties hereto in writing whether it elects to proceed with the remaining funding obligations pursuant to Sections 5, 9 and 10. It is understood that the grounds for not electing to proceed include: an unreasonably high estimate of Project's construction costs; a determination that annual maintenance costs will exceed the limit set in Section 10 (b) below; an engineering determination that the Lagoon cannot be physical ly constructed to permanently create tidal and intertidal habitat substantially as described in the Enhancement Plan; a determination that the necessary Property Interests cannot be obtained within a reasonable time or for a reasonable sum of money, if any; a determination that the Lagoon is not suited for creation and
c In such event, the Escrow Account
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Implementation of the Project shall be undertaken in an
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maintenance of sufficient habitat value units to, at a minimum,
mitigate the Pacific Texas Landfill; or a change in state law which prevents the City of Los Angeles from using excess habitat units created by the project to mitigate future Port projects, does not elect to proceed, the Project shall be deemed cancelled and the provisions of Section 15, below, shall apply.
Upon completion of the Preliminary Design and prior to initiating preparation of the Envi ronnental Impact Report/Statement, CARLSBAD shall submit the Preliminary Design for the review and/or approval of BOARD, CDFG, FWS, SLC, NMFS and Corps. The scope of this review shall be limited to the consistency of the Preliminary Design with the Enhancement Plan. CDFG, FWS and NMFS shall have forty-five (45) days after receipt of the Preliminary Design to review the preliminary design plans and to either approve then or to submit written comments to CARLSBAD. respond within this period shall result in the forfeiture of such party's review rights under this subsection and shall constitute approval of the nonresponding agency. CDFG, FWS and NMFS shall each approve the preliminary design plans if they substantially conform, as described in Section 20, below, to the Enhancement Plan, and no agency's approval shall be unreasonably withheld. If unqualified approvals are not received from each of these agencies, CARLSBAD, in consul tation with the BOARD shall modify the Prel iminary Design to the satisfaction of a1 1 these agencies before proceeding further with the Project.
(e) If BOARD has notified all other parties of its election to proceed with the Project pursuant to subsection (c) above, and upon approval of the Preliminary Design by CDFG, F6 and NMFS pursuant to subsection (d) above, CARLSBAO shall proceed with preparation of the Draft and Final Environmental Impact Report and Environmental Impact Statement. Within forty-five (45) days of certification of the Final Environmental Impact Report or approval of the Final Environmental Impact Statement, whichever occurs later, BOARD shall determine and notify all other parties hereto in writing whether it elects to proceed with the remaining funding obligations pursuant to Sections 5, 9 and 10. proceed are among those set forth in Section 6(c). elect to proceed, the Project shall be deemed cancelled and the provisions of Section 15, below, shall apply.
to proceed with the Project pursuant to this subsection, CARLSBAD shall grant project approval and, provided that all requirements of CEQA have first been satisfied, shall proceed with preparation of construction plans and specifications, and a bid package for construction of the Project (the "Final Design"), based upon the preferred a1 ternative described in the Final EIR/EIS. Upon completion of the Final Design and prior to advertisement for bids CARSBAD shall furnish BOARD, FWS, NMFS, SLC and CDFG with a copy of the bid package for the construction of the Project, including all
If BOARD e
(d)
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Grounds for not electing to If BOARD does not *
(f) If BOAR) has notified all other parties of its election
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engineering drawings for review and/or approval. The scope of this
review shall be limited to the consistency of the Final Design with the certified Final Environmental Impact Report and/or approved Final
forty-five (45) days after receipt of the bid package to either approve it or to submit written comments to CARLSBAD. Failure by any of these agencies to respond within this period shall result in forfeiture of such party's review rights under this subsection and shall constitute approval of the nonresponding agency. CDFG, FWS and NMFS shall each approve the Final Design if it substantially conforms, as described in Section 20, below, to the approved project described above, and no agency's approval shall be unreasonably withheld. these agencies, CARLSBAD, in consultation with BOARD shall modify the Final Design to the satisfaction of all these agencies before proceedi ng further wi th the Project.
(9) Upon receipt of construction bids, CARLSBAD shall immediately forward copies thereof to BOARD, CDFG, SLC, FWS and NMFS. Within forty-five (45) days of receipt of the bids, BOARD shall determine and notify all other parties hereto in writing whether it elects to proceed with the renaining funding obligations pursuant to Sections 5, 9 and 10. The grounds for not electing to proceed are understood to be among those given in subsection 6 (c). If BOARD considers the lowest bid too high, CARLSBAD agrees to rebid the project if BOAflD so desires. the Project shall be deemed cancelled and the provisions of Section
(h) During Project's construction, CARLSBAD shall provide
e Environnental Impact Statement. CDFG, FWS and NMFS shall have
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If unqualified approvals are not received from each of
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If BOAW) does not elect to proceed,
15, below, shall apply.
all parties with access to the Project site and information on progress of the various construction activities in accordance with Section 8. Project Manager shall further provide all parties prel iminary notification in writing that construction has been completed (the "Preliminary Notification"). Upon receipt of such Preliminary Notification, BOARD, CDFG, FWS and NMFS and shall have forty-five (45) days to inspect the Project site and to notify the Project Manager in writing of each party's preliminary determination (the "Preliminary Determination") as to whether the Project's construction has been completed in accordance with all permits obtained for the Project and with the approved Final Design. Failure by any of the above-named parties to respond within this period shall result in a forfeiture of that party's review rights under this subsection and shall constitute an affirmative Preliminary Determination of the nonresponding agency. shall make its Preliminary Determination in the affirmative if the Project's construction substantially conforms to the approved Final Design, and no agency's approval shall be unreasonably withheld. If the Preliminary Determination of any above-named party is not in the unqualified affirmative, the reasons therefor shall be stated with particularity. day period, CARLSBAD shall decide whether to withdraw the Preliminary
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Upon expiration of this forty-five (45)
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Notification or to provide all parties with final notification in writing that construction of the Project is canplete (the "Final Notification") .
(i) Upon receipt of Final Notification, a qualified party satisfactory to CDFG, FWS and NMFS shall undertake a study and prepare a written report of the actual acres of the Lagoon which are inundated with water at various tidal levels (MHHW, MHW, MLW and MLLW) over one (1) full lunar cycle (the "Tidal Monitoring Study").
sixty (60) days after Final Notification. Tidal Monitoring Study shall be from the Escrow Account described in Section g(a), below.
(j) Upon receipt of the Tidal Monitoring Study, any recalculation of habitat units pursuant to Section 12( e), below, shall be performed.
(k) Within forty-five (45) days of the receipt of the Tidal Monitoring Study and based on any such recalculation, CARLSBAD, BOARD, CDFG, FWS and NMFS shall each make a final determination (the
been canpleted in accordance with all permits obtained for the Project and the approved Final Design, and if the Final Determination is affirmative, shall certify this determination to all other parties and Corps. Failure by any of the above-named parties to make a Final Determination within this period shall result in forfeiture of that party's review rights under this subsection and shall constitute an affirmative Final Determination of the nonresponding agency. Each above-named party shall make its Final Determination in the affirmative if the Project's construction substantially conforms to the approved Final Design, and no agency's approval shall be unreasonably wi thhel d. Construction of the Project shall be deemed complete upon said certification by each of the above-named parties. (The certification of a1 1 these parties is hereinafter col lectively referred to as the "Construction Certification.")
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* Said report shall be provided to all parties and Corps within Funding for conduct of the
e "Final Determination") as to whether the Project's construction has
Linkage with Harbor District Landfills and Release of C1 aims.
(a) In accordance with California Coastal Commission Permit
No. 5-85-623-A no fill shall commence for the Pacific Texas Landfill until Pacific Texas has deposited $15 million into the Escraw Account pursuant to Section 9(a), below. It is understood that under the terms of said pennit, upon deposit of up to $20 million into the Escrow Account, Pacific Texas shall have no further ob1 igation to mitigate for the loss of fish and wildlife habitat values caused by the Pacific Texas Landfill except as provided in Corps Permit No. 85-97. It is further understood that under the terms of the escrow instructions to be prepared in accordance with said Coastal Commission Permit, in return for this limitation of mitigation a responsibilities, Pacific Texas will be required to forever release
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and discharge all parties to this Agreement, and their officers,
agents and employees, fran any claims, demands, damages or judgments arising out of implementation of or failure to implement any mitigation project for the Pacific Texas Landfill, including, without limiting the above, any claims for mismanagement, misappropriation or misuse of said Pacific Texas deposit.
accordance with Corps Permit No. 85-97. Construction Certification (pursuant to Section 6(k), above) or certification of completion of another project mitigating the effects of the Pacific Texas Landfill (pursuant to Section 15, below) is a prerequisite to any filling in the "outer harbor area" of the Harbor District by BOARD, or any of its tenants. certification has not been made within four (4) years of initiation of the Pacific Texas Landfill 's construction, BOARD, or any of its tenants, shall not canmence any inner harbor fills requiring off-site mitigation of biological impacts until mitigation for such inner harbor f ills has been accompl i shed.
8. Construction Monitoring. CDFG, FWS and NMFS, at their cost, shall have the right to monitor construction of the Project, through their staffs and/or through contract with an engineering consultant, to ascertain whether construction is proceeding in accordance with the approved Final Design. Each party shall have the right to visit the Project site, as needed, and shall be furnished with a1 1 needed information by the Project Manager, to carry out effective monitoring. substantial conformance with the Final Design, or cannot so proceed due to om ite conditions or other reasons, CARLSBAD shall immediately notify all parties to this Agreement. At CARLSBAD's request, BOARD, CDFG, FWS and NMFS agree to participate in discussions regarding appropriate steps to remedy the situation.
9. Establishment of Accounts and Use of Funds. The funds described in Section 5 shall be deposited and administered in the fol lowi ng matter:
Pacific Texas Landfill, Pacific Texas shall be required to deposit $15 million (the "Pacific Texas Deposit") into an escrow account (the "Escrow Account") which shall be established within sixty (60) days of the effective date of this Agreement by BOARD for the purpose of holding these funds and disbursing these funds consistent with this Agreement. The escrow instructions for the Escraw Account, prepared by the Executive Director of the California Coastal Commission in accordance with Coastal Permit No. 5-85-623-A, shall be reviewed and approved by CARLSBAD, BOARD and Pacific Texas in writing prior to establishment of the Escrow Account. BOARD shall be the trustee for the Escrow Account for the benefit of the parties hereto. Under the escrow instructions, BOARD shall be authorized to request
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(b) Except for the Pacific Texas Landfill, and in e
Further, in accordance with said permit, if said
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In the event that construction is not proceeding in
a
c (a) Escrow Account. Prior to start of construction of the
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- disbursement of funds in the Escrow Account:
by CARSBAD or BOARD in preparing Preliminary Designs, in preparing environmental documents, in obtaining Permits and Approvals, in obtaining title to the Land Interests and in carrying out the Final Design, construction and the Tidal Monitoring Study; (ii) for acquisition of the annuity, described in Section 10(b), below; and
(iii) for transfer into the Investment Account, described in Section lO(c), below. The escrow instructions shall provide that the escrow agent shall be responsible for notifying all parties hereto of any deposit into or disbursement fran the Escrow Account. Manager may require Pacific Texas to deposit up to an additional $5 million into the Escrow Account in accordance with Section 5 herein.
prior BOAFQ approval, is expending funds for the purpose of preparing the Preliminary Design prior to the time of the Pacific Texas Deposit. Under the provisions of a separate reimbursement agrement, BOARD is advancing funds to reimburse these expenditures. withdraw funds fran the Escrow Account after the Pacific Texas deposit is made to reimburse itself for such advanced funds.
(c) Return of Funds to Pacific Texas. Deposit is made and thereafter Pacific Texas and BOARD formally
abandon plans to undertake the Pacific Texas Landfill , any unexpended portion of the Pacific Texas Deposit shall be returned to Pacific Texas, reserving therefrom any funds needed to satisfy existing and non- cancellable monetary obligations of the parties entered into in expectation of reimbursement with funds from the Pacific Texas Deposit.
shall be invested in a prudent manner so as to earn the maximum return subject to the paramount goal of preservation of principal. All income accrued through such investment shall be distributed in the same manner as the principal.
(e) Records/Audits. A1 1 records, invoices, vouchers and ledgers, correspondence and a1 1 written documents of any kind developed during the course of the Project which relate to the expenditure by any party of BOARD or Pacific Texas funds on the Project shall be retained for a period of four (4) years fol lowing Construction Certification and shall be available, to the extent provided under applicable law (such as the Public Records Act, California Government Section 6250 et seq.), for audit by CDFG, FWS, NMFS, SLC, CARLSBAD and BOARD. Nothing in this Section shall be deemed a waiver of the attorney-client or other applicable privileges of any party.
acknowledge that all monies payable by BOARD shall be paid solely out of the Harbor Revenue Fund and not the general fund of the City of Los Angeles.
(i) for costs incurred
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(b) Funds Advanced by BOARD. CARLSBAD, after receiving
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BOARD may
If the Pacific Texas a
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(d) Interest. The balance of funds in the Escrow Account
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(f) Harbor Revenue Fund. The parties to this Agrement
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(9) No Obligation of Other Funds. Nothing herein shall be
construed to obligate CARLSBAD, %C, FWS, NMFS or CDFG, except as specifically provided herein, to expend its own funds, or any other pub1 ic funds except for nonreimbursed staff administrative time and expenses.
10. Project Maintenance Responsibilities. Upon Construction Certification, CDFG agrees to assume responsibility for monitoring and maintenance of the Project consistent with the Final Determination for the primary purpose of preservation in perpetuity of fish, wildlife and wetland habitat values, to the extent funds are available pursuant to subsections (a) and (b), below. contract out these responsibilities and, upon the approval of the parties hereto, may assign these responsibilities. that it shall use its best efforts, in enforcement of local environmental and planning ordinances with respect to property owners within its jurisdiction, and in working with other local jurisdictions, to minimize the amount of sediment which may be transported to the Lagoon fran upstream runoff within the Lagoon's watershed area.
Construction Certification, BOARD and CDFG shall establish a separate escrow account (the "Maintenance Account") with an escrow agent chosen by CDFG. The Maintenance Account shall be funded as provided in subsections (b) and (c), below. authority to withdraw funds from the Maintenance Account. All funds in the Maintenance Account, including any accrued interest thereon, shall be used solely for the purposes set forth in subsection (e), below.
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CDFG may
CARLSBAD agrees
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(a) Maintenance Account. Within sixty (60) days after
CDFG shall have the exclusive
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(b) Annuity. Within sixty (60) days after Construction Certification, CDFG and BOARD shall determine the amount of funds necessary to establish an annui ty or equivalent investment (the "Annui ty") which wi 11 provide a guaranteed annui ty paying the future equivalent of Two Hundred Thousand Dol lars ($200,000) per year for thirty (30) years based on 1987 dollars at the effective date of this Agreement in accordance with the method described in Exhibit D attached hereto and made a part hereof. The first disbursement into the Maintenance Account is to be made immediately upon establishment of the Annuity. All proceeds from the Annuity shall be deposited into the Maintenance Account. The payments from this Annuity shall be used by CDFG to cover the maintenance costs of the Project as described in Section lO(e) for the first thirty (30) years following Construction Certification. BOARD shall transfer the amount determined to be needed for this Annuity, in accordance with the provisions of Exhibit D, from the Escrow Account established in accordance with Section 5(a), provided this amount shall not exceed the sum of Four Million, Ei ht Hundred and Fifty-Two Thousand, Five Hundred Dol lars ($4,852,500 4 given that Construction Certification occurs either in or prior to calendar year 1991. Certification occurs after 1991, the provisions of 2(a) of Exhibit D
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If Construction e
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shall control. BOARD shall be ob1 igated to contribute to the Annuity
only after the amount deposited by Pacific Texas into the Escrow Account, excluding interest, has reached $20 mill ion.
(c) Investment Account. Within sixty (60) days after Construction Certification, BOARD shall establish an investment account (the "Investment Account") in an amount to be determined in accordance with the provisions of Exhibit D provided this amount shall not exceed the sum of Three Million, Three Hundred and Eighty-six Thousand Dollars ($3,386,000) given that Construction Certification occurs either in or prior to calendar year 1991. If Construction Certification occurs after 1991, the provisions of 2( a) of Exhibit D shall control . BOARD shall transfer the amount determined to be needed for the Investment Account from the Escrow Account established in accordance with Section 5(a). BOARD shall be obligated to contribute to the Investment Account only after the amount deposited by Pacific Texas into the Escrow Account, excluding interest, has reached $20 million. The Investment Account shall be maintained for thirty (30) years fol lowing Construction Certification by BOARD to maximize the return to this Investment Account so that a fund is created to maintain the Project after the first thirty (30) years. At the end of this thirty (30) year period, all funds in the Investment Account shall be transferred into the Maintenance Account. Within sixty (60) days thereafter, BOARD, FWS, NMFS, CDFG, SLC and CARLSBAD shall meet for the purpose of determining the adequacy of the Maintenance Account balance to generate sufficient incane to fund the costs of maintaining the Project as certified pursuant to Section 6(k), above. amount remaining in the Maintenance Account following the first thirty (30) years plus the amount transferred from the Investment Account, is in excess of that required for continuing maintenance of the Project at the future equivalent of Two Hundred Thousand Dollars per year, a lump sum amount shall be refunded to BOARD to be determined in accordance with the provisions of Exhibit D.
shall not be obligated to deposit any funds beyond those described in subsections (b) and (c), above, to maintain the Lagoon. Any funds remaining in the Escrow Account upon funding of the Annuity and the Investment Account shall be transferred to BOARD.
funds in the Maintenance Account shall be used only to pay all costs associated with removal of accumulated sediment from the Project's sediment basins, redredging of the Lagoon and Lagoon mouth, maintenance of the freshwater marsh and appurtenances, preparation of the least tern nesting sites, maintenance of all other physical Project features as described in Section 1, and monitoring activities, and direct support costs, to assure that Project's habitat values remain as anticipated at the time of Construction Certification. Any activi ties carried out beyond these standards shall be the responsibility of the party carrying them out.
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If it is determined, based on the 0
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(d) No Further Obligations and Return of Funds. BOARD
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(e) Allowable Maintenance Costs. It is agreed that any
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(f) Records. CDFG shall maintain records showing the use of funds from the Maintenance Account. representatives or personnel work at several locations, the funds provided pursuant to this Agreement shall be used only for that proportion of the time such personnel or representatives work at the Lagoon and then only to the extent described in subsection (d), above. CDFG shall maintain time records showing hours spent at the Lagoon site and activities carried out sufficient to support use of the funds from the Maintenance Account. records of all expenses at the Lagoon. All parties to this Agreement, to the extent provided under the Public Records Act, California Government Code Section 6250 et seq., and subject to the attorney-client or other applicable privileges, shall have the right to audit these maintenance records and all invoices, vouchers, ledgers, supporting documentation and correspondence maintained or available to CDFG for the purpose of assuring that CDFG is properly expending the funds.
11. No Interference with Endangered Species. CARLSBAD agrees that construction of the Project will be scheduled and conducted so as not to incur significant habitat loss or degradation elsewhere within the Lagoon and so as not to adversely impact any State or Federal endangered species which utilizes the Lagoon area, including the California Least Tern, the California Brown Pelican, Least Bell's Vireo or Belding's Savannah Sparrow. Recanmendations offered in any subsequent Biological Opinion on consul tation report prepared pursuant to Section 7 of the Endangered Species Act (16 U.S.C. Sec. 1531 et seq.) or the California Endangered Species Act (California Fish and Game Code Section 2050 et seq.) shall be implemented as required by permit(s) for construction of Project.
12. Use of Mitigation Credits Created by Project.
(a) This Project is being carried out in part to mitigate for the Pacific Texas Landfill.
(b) The parties to this Agreement acknwledge that the habitat values gained from the Lagoon Enhancement Project will be used to offset the habitat values lost fran the Pacific Texas Landfill and will be used to offset other landfill projects which may be permitted in the future.
Construction and maintenance of the Lagoon Enhancement Project will completely mitigate the Pacific Texas Landfill and create excess habitat units sufficient to canpensate for an additional 325 acres of landfill in waters deeper than -20 feet MLLW within the Harbor District ("Excess Habitat Units"), in accordance with provisions of Exhibit C. Upon Construction Certification, these Excess Habitat Units (the exact amount will be determined after Project construction in accordance with subsection (e) below) will be credited to the BOAm and may be used to offset fish and wildlife habitat losses which may result from other landfill projects in the
If CDFG designated
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CDFG shall monthly maintain
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(c)
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Harbor District provided such projects receive a1 1 then applicable Federal and State permits. FWS, CDFG and NMFS would have no objection to use the Excess Habitat Units to offset anticipated outer harbor landfill projects in waters -20 feet MLLW or deeper which are associated with development or new terminal facil ities for general cargo, bul k and neobul k cargo and necessary supporting infrastructure (streets, rail access, utilities, pipelines, etc.). FWS, CDFG, NMFS and BOAflD agree that for these landfills the filling, in a manner similar to the Pacific Texas landfill, of each one acre of habitat in waters -20 feet MLLW or deeper will be offset canpletely by each one acre of Excess Habitat Unit gained as shown in Exhibit C, Table 5, subject to permit conditions which may be imposed on such future landfill projects by regulatory agencies. For dredging or landfills created within the Harbor District in waters shallower than -20 feet MLLW, including areas which may be classified as rocky dike habitat, or for land uses other than those given above, the application of excess Habitat Units must be reevaluated and approved by FWS, CDFG, NMFS, and BOAFO. For dredging or landfills in waters shallower than -20 feet MLLW, said parties agree to evaluate the habitat loss in a manner similar to the procedure followed in Exhibit C. BOARD agrees that before creating any landfills, it will obtain all permits required by applicable laws, including but not limited to the permits required by the California Coastal Act, the Rivers and Harbors Act and the Clean Water Act, and agrees to design such f il Is in accordance with the requirements of such laws. subsequent approvals the FWS, NMFS or CDFG have with regard to the use of Excess Habitat Units for such future fills shall be made in an official and public manner, during canpletion of the enviromental review process as may be required under the California Environmental Quality Act and National Environmental Policy Act, or the regulatory process as may be required under the California Coastal Act, the Rivers and Harbors Act, the Clean Water Act, the United States Fish and Wildlife Coordination Acts, the United States and State Endangered Species Acts and any other applicable laws.
until the Construction Certification has been made.
Determination and actual acres of each habitat type created by the Project and existing at the Lagoon at the time of Construction Certification, FWS, NMFS, a)FG and BOARD will recalculate the habitat units in a manner similar to the procedure followed in Exhibit C and the nwnber of Excess Habitat Units reported in subsection (c), above, shall be modified accordingly.
(f) If at any time during the tern of this Agreement as set forth in Section 17, below, the balance of funds in the Maintenance Account is insufficient to meet all costs described in Section lO(e), above, FWS, NMFS, CDFG and BOARD will recalculate the total number of habitat units created fran the Lagoon Project in its then current condition and the number of unused Excess Habitat Units available at
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Any review or
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(d) No Excess Habitat Units may be used for any purpose
(e) In the event of variations between the Final 0
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that time to the the BOARD pursuant to subsections (c) or (9) will be
reduced accordi ngly.
(9) The BOARD may be allowed to transfer Excess Habitat Units to other ports in the Southern California Bight that are applicants for a Corps of Engineers permit or a California Coastal Development permit for a port district project. However, such ports shall first consult with and obtain the approval of SLC, FWS, NMFS and CDFG, before being entitled to use such Excess Habitat Units. The Excess Habitat Units thus transferred my be used only to compensate for habitat losses incurred as a result of port district projects in waters deeper than -20 feet MLLW. Transfer and use of such excess Habitat Units shall not result in a net loss of fish and wildlife values. Excess Habitat Units shall not be used to offset the impacts of any project which fills or otherwise adversely affects wetlands, as that term is defined in FWS publication FWS/OBS-79/31, Classification of Wetlands and Deepwater Habitats of the United States, L. Cowardin, V. Carter, F. Golet, E. La Roe, December 1979. The BOARD shall officially notify FWS, NMFS and CDFG in writing of acceptance or rejection of any such proposal to transfer Excess Habitat Units.
13. Project. This Agreement describes a proposed Lagoon Enhancement Project and a1 locates responsibilities for its implementation. Entering into this Agreement does not constitute an adoption of the Project or a canrnitment to carry out the Project as those terms are used in the California Environmental Quality Act, Public Resources Code Section 21000 et seq. (I'CEQA") and the National Envirormental Policy Act, 42 U.S.C. Section 4321 et seq. ("NEPA"). NEPA compliance is a condition precedent to any party being canmitted to carry out any obligations set forth in this Agreement for which
such canpliance is required. significant adverse environmental impacts from the Project that can
be better mitigated than as presently proposed, any party responsible for the actions that produce the impacts shall not approve or determine to carry out the Project unless and until such mitigation measures are either duly adopted or excused by a statement of overridi ng considerations.
compliances, any party whose actions require prior CEQA or NEPA canpliance does not determine to carry out or approve the Project, then the Lagoon Enhancement Project shall be deemed cancelled and the provisions of Section 15, below, shall apply.
14. Cancellation if Permits Not Available. The Lagoon Enhancement Project may be cancelled, in which event the provisions of Section 15, below, shall apply:
for the Pacific Texas Landfill do not become effective or are revoked, or
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CEQA and NEPA Compliance is a Condition Precedent to
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Prior CEQA and
If CEQA canpliance discloses any *
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If, upon canpletion of all necessary CEQA and NEPA
(a) if Corps of Engineers and Coastal Commission permits
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(b) if CARLSBAD is unable to obtain Corps, Coastal
Commission, other necessary permits and approvals or the necessary
Land Interests to construct the Lagoon Enhancement Project.
15. Effect of Project Cancellation.
Sections 5, 6(b), 6 (c), 6(e), 6(g), 13 or 14(b):
a
If the Lagoon Enhancement Project is cancelled pursuant to
0 (a) The Pacific Texas Deposit shall not be returned.
(b) CDFG, FWS, NFfFS, SLC, CARLSBAD and BOARD shall
immediately begin necessary work to determine if a1 ternative projects
described in the Enhancement Plan or in the Final EIR/EIS documents prepared for Project can be completed within a time period acceptable to CDFG, FWS, NMFS and BOAfUl using the funds available in the Escrow Account and any other funds made available for this purpose. If it is determined that a project under this subsection can be canpleted, CDFG, FWS, NMFS, SLC, CARLSBAD and BOARD shall proceed with
implementation of that project expedi tTously and in a manner similar
to that described in this Agreement for implementation of the Lagoon
Enhancement Project. If the Lagoon Enhancement Project was cancel led
pursuant to Section 6(b), 13 or 14(b), BOARD shall be entitled to receive any Excess Habitat Units created by a project canpleted under this subsection; rovided that if another entity, whether public or
by law to do so, any Excess Credits created shall be divided pro rata based on the contributions of such other entity and the contributions of BOARD including its share of the Pacific Texas Deposit as set forth in Permit No. 580 beween BOARD and Pacific Texas. As an example, if total expenditures necessary to create and maintain an
a1 ternate project under the provisions of this Subsection are
$25,000,000 and the monies paid by another entity are $5,000,000, then such entity shall receive 5 divided by 25 which equals 20% of the Excess Habitat Units and BOARD shall receive 80% of the Excess Habitat Units.
subsection cannot be completed, CDFG, FWS, NMFS, SLC, CARLSBAD and BOARD shall canply with subsection (c), below.
SLC, CARLSBAD and BOARD shall immediately begin necessary work to
determine if another project at Batiquitos Lagoon which would
generate enough habi tat value gains, pursuant to analysis conducted
by CDFG, NMFS, FWS and BOARD in a manner similar to the procedure followed in Exhibit C, to offset the habitat value losses due to the
Pacific Texas Landfill can be completed within a time period
acceptable to CDFG, FWS, NMFS and BOARD using the funds available in the Escrow Account. Any such alternative Lagoon project shall create tidal and subtidal habitat for the reasons set forth in Recital IX of
this Agreement, and shall be designed and implemented to meet the
following criteria: (i) not less than fifty percent (50%) of the project area shall have an average elevation of -3 feet MLLW; (ii)
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private, financia P ly participates in such project, being authorized
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If it is determined that a project under this
* (c) If this subsection becomes applicable, CDFG, FWS, NMFS,
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~ not more than thirty-five percent (35%) of the project area shall have an elevation of between -3 feet and +2.5 feet MLLW; and (iii) not more than fifteen percent (15%) of the project area shall have an elevation of between +2.5 and t5.5 feet MLLW. If it is determined
that a project under this subsection can be completed, CDFG, FWS, NMFS, SLC, CARLSBAD and BOARD shall proceed with implementation of
that project expeditiously and in a manner similar to that described in this Agrement for implementation of the Lagoon Enhancement Project. Section 6(b), 13 or 14(b), BOARD shall be entitled to receive any Excess Habitat Units created by a project completed under this subsection; provided that if another entity, whether public or private, financially participates in such project, being authorized by law to do so, any Excess Credits created shall be divided pro rata based on the contributions of such other entity and the contributions of BOARD including its share of the Pacific Texas Deposit as set forth in Permit No. 580 between BOARD and Pacific Texas as per the example given in Section 15(b). under this subsection cannot be completed, CDFG, FWS, NMFS, SLC, CAFU-SBAD and BOARD shall canply with subsection (d), below.
(d) If this subsection becomes applicable, CDFG, FWS, NMFS, SLC and BOARD shall immediately begin necessary work to determine if another project at an a1 ternative location which would generate enough habitat value gains, pursuant to analysis conducted by CDFG,
FWS, NMFS and BOARD in a manner similar to the procedure followed in Exhibit C, to offset the habitat value losses due to the Pacific Texas Landfill can be completed within a time period and at a location acceptable to CDFG, FWS, NMFS, SLC and BOARD using the funds avail ab1 e in the Escrow Account. project shall create tidal and subtidal habitat for the reasons set forth in Recital IX of this Agreement and shall be located between Point Conception and the Mexican border. More specifical ly, such a1 ternative location project shall maximize marine fisheries and e coastal seabird habitat gains by establishing unrestricted tidal influence to coastal areas presently having little or no marine fisheries and coastal seabird habitat value, and shall be designed and implemented to meet the following criteria: (i) not less than fifty percent (50%) of the project area shall have an average elevation of -3 feet MLLW; (ii) not more than thirty-five percent
(35%) of the project shall have an elevation of between -3 feet and
t2.5 feet MLLW; and (iii) not more than fifteen percent (15%) of the project area shall have an elevation of between t2.5 and t5.5 feet MLLW. CDFG, FWS, NMFS, SLC, and BOARD shall proceed with implementation of such a1 ternative location project expeditiously and in a manner similar to that described in this Agreement for implementation of the Lagoon Enhancement Project. If use of funds from the Escrow Account for an alternative location project requires legislation similar to Section of SB 2059 of the 19851986 Regular Legislative Session (Ch. 1415, Stats. 1986; Pub1 ic Resources Code Section 6306.1) BOARD and SLC agree to support such legislation.
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If the Lagoon Enhancement Project was cancelled pursuant to
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(e) If the Project is cancelled pursuant to Section 14(a),
unless any loss of habitat in the Harbor District has resulted fran the initiation of any work on the Pacific Texas Landfill , any unexpended portion of the Pacific Texas Deposit shall be returned to Pacific Texas, reserving therefrom any funds needed to satisfy existing and noncancelable monetary obligations of the parties entered into in expectation of reimbursement with funds from the Pacific Texas Deposit.
16. Effective Date. The effective date of this Agrement shall
be the date on which the last of all signatories designated on the signature page hereto has signed this Agreement.
17. Term. Except as otherwise provided by law, this Agreement shall' remain valid for the life of the Pacific Texas Landf ill unless
it is rescinded by written consent of all parties or unless cancel led as provided herein.
18. Captions. The captions on the sections and subsections of this Agreement are solely for the convenience of the parties and no meaning shall be ascribed thereto in interpreting the provisions of this Agreement.
19. Days. Unless otherwise specif ical ly provided, the term
lldays" as used herein shall mean calendar days. However, when the use of this term results in the last day for an action being set for a Saturday, Sunday or other non-working holiday, the action shall be deemed to be timely if performed on the first business day thereafter .
20. Substantial Conformance. The terms "in substantial conformance' or "substantially conform(s)" as used herein shall mean
not differing in any material way from that to which it is canpared including, without 1 imitation of the foregoing definition, not differing in any way that results in a reduction in habitat values anticipated from the Project and not in conflict with the requirements of state and federal law.
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21. Communications, Points of Contact. Unless all parties are
notified in writing of changes, the following individuals will be the points of contact for the respective parties:
Port of Los Angeles Mr. Vernon E. Hal 1, Project Manager P. 0. Box 151 San Pedro, CA 90733-0151
The Fish and Wildlife Service Mr. Jeff Opdycke, Project Leader 24000 Avila Road Laguna Niguel , CA 92656
The Department of Fish and Game Mr. Donald Lollock, Chief, Environmental Services Branch 1416 9th Street Sacramento, CA 95814
The National Marine Fisheries Service Mr. Robert Hoffman, Southern Area Environmental Coordinator 300 South Ferry Street Terminal Island, CA 90731
The City of Carlsbad Mr. Raymond R. Patchett, City Manager 1200 Elm Avenue Carl sbad, CA 92008-1989
The State Lands Commission Ms. Claire Dedrick, Executive Director 1807 13th Street Sacramento, CA 95814
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(714) 643-4270
0 (916) 445-1383
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(619) 438-5561 e
(916) 322-4105 e
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APPROVED AS TO FORM THE CITY OF LOS ANGELES, acting
by and through its BOARD OF HARBOR COMMISSLONERS
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THE FISH AND WILDLIFE SERVICE,
U.S. Department of the Interior e
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THE DEPARTMENT OF FISH AND GAME
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e THE NATIONAL MARINE FISHERIES SERVICES, NOAA, U.S. Department of Commerce
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*KO L Regional Director
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Ma yo r
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J CLAIRE DEDRICK y d Executive Officer
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10/14/87 Pactex MOU-2 csc3-6766a
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EXHIBIT A
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e SHORT DESCRIPTION OF PROJECT
For the proposed Batiquitos Lagoon
Enhancement Project in the City of
Carlsbad.
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The following SHORT DESCRIPTION of the Batiquitos Lagoon Enhancc .\ Project was excerpted, unedited from the draft Batiquitos Lagoor Enhancement Plan prepared by the California Coastal Conservancy
in October, 1986. The SHORT DESCRIPTION was taken from Section
IV of the draft plan and represents the following:
Pages 118-137 ("the Enhancement Plan") and
Figures I (Preferred Alternative), N (Plan Alternative No.
8 Pages 155-159 ("Alternative Plans") plus
21, and 0 (Plan Alternative No. 3).
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THE EMCOQMT PUN
Four different alternative enhancement plans are described in the fol lonir section. Alternative one is the preferred alternatlve and ts recomnended implementation under thi.s plan. Alternatives two and three contain less dredging and consequently. smaller tidal prisms. There is a higher level c uncertainty about whether the mouth of the lagoon will remain open under alternatives two and three. All three of these alternatives have been vie by the public and enhancement group; we have revised the original design c alternatives tm, and three to reflect certain changes since their first de The final alternative is the No Project alternative and is really a predic of the fate of Batiquitos Lagoon should no enhancement be done. Table 17 compares the specific features of each alternative. improvements proposed for the lagoon, each alternative includes the same sedfment mnagement system, pub1 ic access trai 1 and beach nourishment prog The various agencies and funding mechanisms for implementation of the plan included in Section V.
Preferred Alternative (Alternative 11
This alternative endeavors to fulfill the goals of the enhancement plan by creating adequate tidal prism while still conserving the wildlife habitat values and marsh areas of the lagoon.
Tidal Prism and Laqoon Channel Closure Conditions
The single most important hydrologic design constraint for Batiquitos Laga to ensure that there is a sufficiently large tidal prism to keep the entra channel open. difficulty in their measurement, make it difffcult to predfct the "critfca value of the tidal prism, above which we can be assured the entrance chann will always stay open. The plan takes an empirical approach to this probl Based upon the studies by Johnson (1973) and updated by PhBlip Williams an Associates, the mean tidal prism and closure conditions for 20 coastal lag in California were determined, and plotted against deep water wave power. plotted points are shown in Figure 7, along with the three alternatives fa Batiquitos Lagoon. The plotted points show a clear separation between lag that are "always open' and those that are 'sometimes closed". This separa is indicated by a dotted line in Figure 7. The position of the line, howe is only approximate; the minimum tidal prism needed to keep a coastal lago always open can only be estimated within a factor of two.
The preferred alternative will have a potential man tidal prism of 44 mil cubic feet, a potential diurnal tidal prism of 67 million cubic feet, and perigean spring tidal prism of 99 million cubic feet. If the positlon of boundary between open and closed lagoons (Figure 7) is offset by a factor two, the tidal prism for the preferred alternative would still be sufficie keep the lagoon open. According to the Jenkins and Skelley (1985) study w used a different analysis, the closure frequency would be less than once i years.
In addition to the
The complexity of the hydrodynamic processes i nvol ved, and
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Table 17
S-Y OF ALTERNATIVES - BATIQUITOS U6OOM EMCMENT PUN
(Preferred
1 Alternatfve) 2 3
Intertidal Area (acres) (i2.5' to -2.5' NGW) 170 215 315
Subtidal area (acres) a (below -2.5' NGVD) 220 171 71
Area of sal t/brackish marsh (acres) (above +2.5' NGVD) 139 141 141
Area of Least Tern habitat (acres) 34 34 34
Area of freshwater marsh (acres) 33 33 33 *
Potential mean diurnal tidal prism (million cubic feet) 67 60 46
Potential perigean spring tidal * prism (million cubic feet) 99 89 68
Approximate vol me of dredge material (million cubic yards) 3.0 2.1 1.3
Entrance channel area (below 0' NGVD) (square feet) 1700 1500 1200
Total Capital Costs (includes dredging Q $4.00/yd, drag bucket system, beach groins, levee, * in million dollars) 12.4 8.8 5.6
*NGVD = National Geodetic Vertical Datum - approximately equal to Mean Sea e Level
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d e. cd ia (0' Id . WUlLNY CIOII lfCTIQlr*L -A Q UT (R8) ULQI & (A)
(1) Referred Alternative
(2) Allwnative 2 (3) Alternative 3
NOTC IIWS)co* CUvt wit* e5 ?CKtmT CDUIDCMCE Lwlts
TIDAL PRISM VS
CROSS-SECTIONAL AREA
ALL WLfTS w PACIFIC COAST
..
FIG. 6 Ptom Jarrctt 1976
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e To determine-whether the actual tidal prism was not significantly less thi potential tidal prism, a tidal hydrodynamic model was used to simulate fr. losses (for details see Appendix C). The model found that the difference between the actual and potential diurnal tidal prism was small, approxima, 5%. Ebb flows through the entrance channel are slowed by energy losses ai
MLLW level in the main part of the lagoon is increased by 0.4 ft. Most 0. a tidal dampening is due. to the constrictions of the entrance channel throw beach and the HIghway 101 bridge. Once the channel is deepened, the 1-5 l railroad bridge no longer have much effect on the tidal range.
During the peak ebb flow, the maximum difference in water level between tt ocean and the lagoon is about one foot for the mean diurnal tide for the n constricted channel ali nment which assumes no dredging of the western ba: except for the channel 9 see Alternatives 2 & 3). Jenkins b Skelly (1986) carried out a two-dimensional model simulation that indicated for similar conditions the mximrm water level difference to be approximately 1.5 ft. the perigean spring tide. However, it should be noted that this water le\ difference does not translate directly into a loss of tidal prism. Insteac causes a lag and steepening of the tidal wave form as it moves into the li The actual dampening of the tidal range is considerably less. Therefore, dredging the western basin may not be particularly important to minimize ' dampening. However, deepening the western basin does add 1 million cubic or 1.6 percent to the ti-dal prism.
The reconfiguration of the lagoon is presented in Figure I. The eastern I would be excavated from the approximate +2.5 foot MSL contour down to the foot contour. The western basins would be excavated down to the -8.0 foot contour (see lagoon cross-sections Figures J and K). The hydrodynamic prc analyzed tidal heights in the entire lagoon for an average tidal cycle. IF order to decrease the amount of friction between the lagoon bottom and tic flows, to create subtidal habitat and to overdredge the lagoon slightly, t bottom dredging elevations of -6.0 foot for the eastern basin and -8.0 foc the western basin were decided upon. The hydrodynamic program showed that deeper dredging in either basin provided no additional benefits to tidal f Another feature of the dredging contours is a defined bottom channel to he transport fine sediment through the lagoon and out to the ocean. This cha extends from the mouth of San Marcos Creek through the subtidal area to tt lagoon entrance channel. This channel will also serve to facilitate flows freshwater through the marsh to the lagoon and improve current flood probl along loner San Marcos Creek.
For the most part, the dredging area is confined to the presently unvegeta portions of the lagoon. The dredging was designed in this way to avoid lo existing marshland. The exception to this design criteria is the far west basin between the railroad and Highway 101. As previously mentioned model completed for this plan does not conclude the same dredging requirements a Jenkins and Skelly (1986) report. enhancement group to provide for dredging of the western basin and the des of the dredging incorporates these results. In several areas of the east west basins there are small areas of marsh which are below the +2.5 contou These would not be able to survive the inundation once the lagoan is open tidal action and could not be preserved.
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Table 18
Cry of hta for Mtural Lagoons - CalIforn4a Cast
Potential Tidal Deep Water Closure
Diurnal Mean ft lbs/ft/yr
Annua 1
No. Name Prism Wave Power Conditions
1 Smith River
2 Lake Earl 430 320 3 29 Frequent 3 Freshwater
4 Stone Lagoon 86 64 348 Frequent 5 Big Lagoon 240 180 348 Frequent 6 Eel River
Bel ta 200 140 371 In f reguent 7 Estero
American0 22 15 (2001 Frequent a Estero San
Frequent Never Antonio 11 65 ( 200 1 9 Tomales Bay 1580 1070 209 10 Ab bot t s
Lagoon 17 I1 307 Frequent
11 Brakes Estero 490 340 26 Never
Bolinas Lagoon 200 130* 'I 17 Never Frequent Frequen t
' Never
x 10"
Estuary 35 24 303 Infrequent
Lagoon 35 25 3 48 A1 ways
13 Pescadero Marsh 68 46 ( 208 1 14 Mugu Lagoon 1976 27 19 f.100) 15 Mugu lagoon 1857 170 120 (1001 16 Carpi n teri a Marsh 4.89 1.5 (501 I n f requen t
17 Aqua Hedi onda
18 Batiqui tos
19 San Dieguito
20 San Dieguito
21 Los Penasqu i tos
22
23 Bolsa Chica 113* 80* 29
*Tidal prism precisely characterized
Lagoon 1976 80 55 28 Never
lagoon 1985 0.33 0.23 (30) Frequent
Lagoon 1976 0.2 0.14 (30) Frequent
Lagoon 1889 37 24 (30) Never
Lagoon 1976 2 0.75 (30) Frequent
Estuary 24 17 (100) Infrequent
Ti juana River
'ipted from Johnson, 1973.
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The hydrodynamic program predicted tidal heights for the lagoon over an a\ tidal cycle. Table 19 contains the results of this analysis. Under this regime the proposed dredging contours were designed to create an fntertidz zone belaw existing vegetated wetlands. This intertidal band will encirc' each basin and vary from a maximum 10 percent slope to a nearly flat grad. of less than 1 percent slope. At the -2.5 foot contour, the lagoon bottor, drop off at a six percent slope to the subtidal bottom elevation of -6.0 c 8.0 ft MSL.
With a 67 million cubic foot tidal prIsm, the cross sectional area of the entrance channel would be about 1700 square feet below MSL. This calculat uses the Jarrett relationship (see Fi ure 6). The width of the channel un the bridge (from headwell to headwell 4 would be about 160 feet with rip-ra side slopes at 3:l. The channel would be about 15 feet deep MSL and 10 fe wide across the bottom. Since the Highway I01 bridge has at least three s of piers on the southbound lane and seven sets on the northbound lane, engineering specificatdons for the channel will require provisions for fortification and protection of these piers from undercutting. The lagoon channel would Be lined with riprap through the beach to the mean lower 101l water (MLLW) line. A fence would be erected along the riprap to restrict access to the channel.
Habitat Acreages
The creation of habitats and enhancement of coastal wetlands is still an uncertain process. Despite ten years sf enhancement efforts in California wetlands, there am still many unknowns and always the possibility that wh planned in an enhancement project will not be realized in the final result The acreages and types of habitat which are expected to occur after the construction of the Batiquitos project are based upon the elevations to wh the lagoon will be dredged, predicted tide levels and the occurance of sim habitat types in nearby wetlands.
With consideratfon of these conditions, the preferred a1 ternative (A1 ternai 1) is proposed to conserve and create the following acreage of each habitai type:
Subtidal habitat (-2.5 ft to -8.0 ft MSL) 220 acres Intertidal habitat (-2.5 ft to +2.5 ft MSL) 170 acres Sal t/Brackish marsh 139 acres Freshwater marsh 33 acres Least tern nesting sites 34 acres
Total 596 acres
The distribution of these acreages is illustrated in Flgure I.
Subtidal Habitat
This area would be covered by tidewater during most stages of the tidal cyc Several times during the month when low tide levels are at their extremes, portions of the lagoon bottom in the subtidal area will be exposed. Howeve
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bdeled and Measured Tide Heiqhts,
ktiquitos Laqoon, rr(r'pb (f t. 1
Seri pps West Mi dd7 e East Wharf . Basin Basin Basin
Pref. Pref. Pref. Alt. 1 Alt. 2 Alt.3 Alt. 1 Alt.2 Alt.3 Alt. 1 Alt
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4b MHHW +2.52 +2.5 +2.5 +2.5 2.5 +2.5 +2.5 +2.5 +2.
KLW -2.88 -2.8 -2.8 -2.9 -2.5 -2.8 -2.9 -2.5 -2.
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e for the most part this is a shallow marine aquatic habitat and will be covl by 5 to 6 feet of water.
Certain fish and invertebrate species would be expected to colonize the la1 once it is dredged and opened to the ocean. We propose no stocking of the or introduction of shellfish into the lagoon. Therefore, the abundance of these animals would be dependent upon natural colonization rates and be expected to increase fol-lowing the initial opening of the lagoon. The typi invertebrates and their abundance will also depend upon substrate types in lagoon bottom, water quality and nutrient levels and soil chemistry. Thesc factors will change in the first few years following the project.
For example, after the lagoon is dredged the bottom sediments will be made primarily of sand with little silt or clay. As fine sediments continue to into the lagoon from the watershed, some probably will settle on the sand i form a mud layer. The thickness of this layer and the mixing of the sand z mud by bottom currents will change the type of substrate in the lagoon and the habitat for benthic organisms.
A similar enhancement project in San Dieguito Lagoon has been monitored for several years following completion of dmdging of a tidal basin (Christophc 1984). The substrate is largely sand and varies from subtidal to intertidt zones. These studies found a number of benthic organisms, the most comn being: bubble shell (Haminoea vesicula), wavy chione (Chione undatella), t clam (Mactra nasuta), California jacknife clam (Tagelus californicus) vlolc ray jacknife clam, (Tagelus subtores) and marine polychaete worms (capite11 ca itata, Pol dora aucibranchiata, Scolele is accuta and Mediomastos hie&d-s dasrms. In addition, ott species which could colonize this area include: snails (Ceratostoma nuttal moon snail (Polinices lewisi), rough piddock (Zirfaea ilsbr i), ghostshrin (Callinassa giqas), blue-mud shrimp (Upogebia pugettens s , s enculid worm unculus nudus), segmented worm (Chaetopteros = vario e atus s rough skinr lugworm (3+ pen co a brasiliensis) and ribbon worms
In general, invertebrate species select their habitats according to the grz sizes of the substrate (sand vs. mud), the amount of wave action or currenl the salinity and water quality. As explained, in the first few years after lagoon ds dredged, sediment layers will move and resort according to tidal storm currents. Soil chemistry and water quality will change as well. The system will not reach an equilibrium condition for several years at least 2 the invertebrate fauna would be expected to respond to these changes.
The subtidal area will also provfde habitat for marine and estuarine fish species such as California halibut, white,spot-fin and yellow-fin croaker, topsmelt, deep-body anchovy, barred and spotted sand bass, long jaw mudsuck arrow goby and several species of surfperch. Many of these species enter shallow bays and estuaries to spawn. Juvenile fish born both in the open o
and in the lagoon may spend several months feeding and maturing in the shal water prior to their migration into the ocean. The abundance of zooplankto .r and benthic animals will support both juvenile and adult fish. The San Olegulto Lagoon, slnce its enhancement, supports many of these species.
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Juvenile fish and invertebrates provide food for diving ducks, diving ocez birds and gulls and terns including the Least Tern. Presently the lagoon not provide any subtidal habitat and only very limited fish habitat due tc seasonal ly poor water qual i ty conditions.
Intertidal Habitat
The intertidal zone is the area which average tidal flows cover and expos( twice daily. The majority of the intertidal area lies along the south shc and eastern end of the eastern basin. A 50 foot wide strip borders the nc shore and rings the western basin. A total of 170 acres of intertidal hat are included in the plan. As with the subtidal habitat, the intertidal j will be in a state of flux for the first few years following the dredging,
In most lagoons and estuaries, the intertidal zone is habitat to numerous benthic animals which burrow into the mudflats or live on its surface. T! infusion of ocean water twice daily provides a source sf food for the benl animals who sieve bits of detritus and food frons the water. Worms, clam:
ar ,hi pods and other creatures inhabit this area. Moni toring studies from Dieguito Lagoon found such animals as; polychaete worms such as Capitella ea itata, Pol dora s Scolele is acuta and various oligochaete worms as hrM&d macknife clam (la elus subtores) eggshell cockle (Laevicardium substraitum) dish clam ( hXhC( ctra nasuta oldifomis; razor clam (Solen rosaceus)s and striped mu- (mdium- +-r emissum in the intertida-emr animals which were found in t6is mnoderms such as Le tos na ta albians, gastropods (Acteocina har a: various amphi pod species-apmequi 1 i bra (Chrw &.
Some of the other species which could typically inhabit intertidal sand ar flats and could colinze the intertidal zone of the lagoon include: dollars (Dendraster excentricus), sea pansies (Renilla kollikeri) , sea st: (Aspropecten annatus) 9 horn shell snadl (Cerithjdea calitornica) , moon snz (Polinices recluzianus), ghost shrimp (Callianassa californiensis) , burror anemone (Cerianthus aestuari , Harenactis attenuata) 9 brittle stars (Amphic barbarae) and segmented worms {Mesochaetopterus taylorf ) and joint worm '(Ax-1 la rubrocincta). Crab species (Portun'fs xantusi , Heterocrypta occidentalis) may forage in this area as well.
These invertebrate animals provide the productive food base associtaed wit bird use of intertidal areas. The three Resource Agencies (DFG, NMFS, FU5 have determined through the Habitat Evaluation Process (HEP) that the 170 of intertidal habitat and 172 acres of marsh outlined in the plan are sufficient to conserve the existing habitat values for migratory birds pre at Batiqui tos Lagoon.
The depth of water and productivity of the habitat will largely determine species and number of shorebirds using different areas of the lagoon. Approximately the same shorebirds species would be expected to use the enb lagoon as do presently (see Appendix G). Wading birds, diving ducks, tern gulls and others would be expected to use the intertidal zone at various t stages as well. However, the value of the intertidal area to the dabbling ducks which currently use the lagoon is less certain.
sand
Shallow freshwater
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* brackish water habitats are most valuable to these species. The shallow a of intertidal- habitat should provide feeding habitat as will the freshwate marsh. The proposed acreages of these are considered adequate by the Reso agencies to support dabbling duck populations currently using the lagoon.
Sal t/Brackish Marsh
The salt/brackish marsh acreage is composed of existing marsh which occurs above the dredge zone (+2.5 ft MSL). This marsh would experience regular inundation as a result of the lagoon enhancement but would not be mechanic manipulated or changed.
The introduction of regular tidal inflows to the lagoon could cause the composition of plant species in the marsh to change. The present distribu of plant species is a response to a hydrologic regime in which the lagoon seasonally floods with freshwater and then dries out and has hypersaline conditions. Tidal flows are rare, The present marsh vegetation extends f approximately +2.0 ft. to over +7.0 ft. in several areas. This marsh is a mixture of brackish and salt marsh species.
Studies in other salt marshes in San Diego County have found a number of physical factors to affect marsh plant distribution. These factors incluc tidal inundation, elevation, slope, soil salinity$ wave force and nutrient The plan would introduce regular tidal inflows and create tidal zones in 1 marsh. The enhanced lagoon would have a mean higher high tide level at +i 9 ft. (MSL) and a spring high tide level at about +4.5 ft. (MSL). Extreme c tide levels could reach +6.0 ft. (MSL). Figure 25 depicts the elevational occurrence of certain species of marsh plants in relation to tidal influer The range for each species is a maximum zone and the area extent of each i enhanced lagoon may differ significantly. In the far eastern end of the 1 the inflow of freshwater could affect the distribution of plant species ar brackish, less salt-tolerant plant species (e.g. Scirpus robustus, Scir UI olneyi, Typha dominqensis) may occur there. Likewfse areas of fres water may retain their brackish water species. reintroduction of tidal flows should create conditions which favor the grc of salt marsh plants (e.g. Salicornia vfrginica, Frankenia qrandifolia, J2 carnosa) and increase the vlgor of those salt marsh plants already in the lagoon. Many salt marsh species are active colonizers of areas with suit2 conditions, Cordgrass (Spartina foliosa) occupies the lowest zone of vegetation in a tidal marsh and does not presently occur in Batiquitos Lac It could be planted in expermential areas once the project has been functi for several years and sediments and water levels have stabilized. Other n plant species including the endangered salt-marsh birds beak (Cordyl anthuz maritimus) could be introduced to the lagoon wetlands.
Overall it is difficult to predict how the species composition and extent the marsh will change once the lagoon is enhanced. For the most part the existing areas of marsh are conserved and changes in the acreage of marsh
be monitored.
Shorebirds are expected to regularly use the marsh both to forage for invertebrates in tidal sloughs and to roost during high tides. .Yading bir
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However for the most part the
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8 0 10 11 12
ANNUAL PlCKlEWEED
JAUMEA CARNOSA
FRANKENIS Gm
MONANTHOCHLQE L.ITTORM
GLASSWORT [,I
HATCHING DENOTES ELEVATIONS WITH
FREQUENCY OF OCCURRENCE GREATER
THAN 70%.
Dlrtrlbutlon of the =st cDIy)n halophytes by e1evatltm9 at Tlju~na
E8tuary (tcdler 1977;. Data fra &hi8 Bay (?¶army and Zembal 1979) were used
to extend the ranges of specie. beyond th %to 12-dm MSl range observed at Tijuan Estuary.
From Zedler.1982
FtG. 25
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and some ducks may also roost and feed in the marsh. Bird species use wii depend largely upon the type of plants that predominate. greater extent of pickleweed marsh could support more breeding pairs of Belding's Savannah Sparrows. More brackish marsh could support long-bille marsh wrens and other small birds,
Freshwater Marsh
The proposed freshwater.marsh would be a managed freshwater wetland enclos an earthen levee, The primary reason for creation of a freshwater marsh i assure the continuance of the existing habitat values at Batiquitos Lagoon While the intertidal mudflats and subtidal areas proposed in the plan waul( create prime habitat for migratory shorebirds, wading birds and some water. one component of the present fauna - the dabbling ducks requi re a freshwatc component. The creation of a freshwater area would condense the present w area of the lagoon for these species into a 33 acre freshwater area and thl acre intertidal zone.
The levee is designed with an approximate 80 foot toe and an 8 to 1 slope the outer side and a 3 to 1 slope on the inner side (see Figure L), The g slope on the outer side would allow for tidal water to inundate the lower portion of the levee and create marsh and mudflat. The 8:l slope 1s flat enough to avoid wave erosion and the need for rip rap. The bottom toe of levee would be constructed at the approximate elevation +2.5 ft. (MSL) and top of the levee would reach +8.0 ft. (EL). The top elevatfon would prec yearly high tides from overtopping the levee, The interior of the marsh w be recontoured to an elevation of +2.5 to +3.0 ft. (MSL) and given design provisions for deep areas and exposed plant areas to increase diversity. 'r depths would be controlled at six inches to one foot. The dredging would i for the'portion of the marsh closest to the upland to be higher than the ai near the levee so that the marsh can be drafned completely.
The water source for the marsh will be San Marcos Creek. A wefr would be placed in the creek at the El Camtno Real bridge at the +5.0 ft MSL level. This weir would detain water and the water would flow by gravity through p into the marsh. Given a maximum evaporation rate of 25 acre feet per montl the sumr, it is estimated that the marsh will require 1/2 cubic feet per second (cfs) of inflow during the sumner. Sumner waterflows in the channe could fill this need. In the winter the need for water in the marsh may bc minor since a small tributary enters the marsh area. The weir in San Marc( Creek would be designed such that no flood problems would occur.
Additionally, dual slide/flap gates would be placed at several locations ii levee to allow for release of freshwater when levels are in excess of the s inch to one foot marsh depth and to allow the flooding of the marsh with sa water. All culverts, frames and gates would be coated with replacable zinc anodes and be made of eight gauge bi tuminous-coated asbestos-bonded galvanl steel for long wear and low maintenance. Salt water flooding in the sumr
could create a year round habitat should a drought occur and could be used control tules and other unwanted vegetation. However use of salt water shc remain a management option for the marsh, not necessarily a mandate since i could adversely affect certain brackish to freshwater marsh plants needed f
For example, a
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waterfowl. When viewed from the adjoining hills the marsh will look like shallow water pond with small collections of bulrush or other marsh plants The freshwater marsh would replace salt marsh and salt pan on the site.
The water management scheme and finished bottom elevations of the freshwat marsh will largely determine what plant species inhabit the area. At pres there are not plans to plant marsh species, but instead, the plants would colonize by seed. Cattail , bulrush, three-square rush, pondweed and other aquatic plants would be expected to invade the shallow areas. Because soi may remain brackish for the first years following construction, some speci
may be limited. However, if the marsh is left strictly as a freshwater ar the soils will leach and salts should be reduced. The management of the c water levels and annual drying wil largely determine the plants which colo and thrive there.
Least Tern Nest Sites
The U.S. Fish and Wildlife Service in cenjunctfon with the Department of F and Game determined a minimum of four least tern nesting sites be created the lagoon totalling approximately 32 acres. The plan provides for four s -one 16 acre site near the Park and Ride lot, one 12 acre site on the nort shore, one 4 acre site within the levee of the freshwater marsh and one 2 site near the lagoon mouth. All these sftes occupy locations of previous1 used nest sites. When tidal influence is returned to the lagoon, the prev nest sites on the salt pan will be flooded. Therefore to provide sufficie area for the terns to nest, new nesting sites have to be created, These s would be created out of sand dredge spoils from the lagoon and raised up t +8.0 ft. MSL. A layer of clean white imported sand with broken shells wou cap the dredge spoils.
Limited maintenance of the nesting sltes will be required; removal of all vegetation must be performed yearly. In order to gain access to the nesti sites they are located close to the edges of the lagoon. In order to prot the sites against predators six foot cyclone fencing will border the lagoo edge in the vicinity of the least tern sites and be located a minimum of 1 feet from the site. Both ends of the freshwater marsh levee would be fenc The fencing wi 11 restrict domestic animals and other terrestrial predators entering the nest sites. The fence is located at a distance from the site that avian predators are not able to use the fence posts as hunting roosts
An additional nesting area could be gained if the levee surrounding the freshwater marsh were kept free of vegetation and covered with white sand. Least Terns in the San Francisco Bay area nest on the levees of salt ponds
All four sites are designed to provide relatively isolated, dry sandy loca with clear views for the terns. allow for various locations aver the entire lagoon for the terns to choose from.
Construction Methods and Schedules
The preferred a1 ternative would require dredging and dfsposal of approxima
A number of different sites are provided
A total of 34 acres of nesting sites are provided.
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3.0 million cubic yards of sand and silt material from the lagoon. Before exact construction methods can be outlined and a reliable schedule drawn u number of tests nust be completed. The only studies on the lagoon sedimen are a limited number of corings of the lagoon bottom in the eastern basin larger number in the western basin (Woodward-Clyde Consultants, 1985; Shepardson Engineering Associates Inc. s 1985). information regarding the grain size of the material and thus the thicknes clay and silt layers and sand layers over the lagoon bottom. These coring studies did not include-any chemical analysis of the materials however, an these tests must be done before final plans for construction can be comple
The coring studies give gross estimates of the quantities of two classes o sediment on the lagoon bottom. primarily fine silts, clays and fine sands with grain sizes smaller than . mm. The silt and clay layer in the east basin is much thicker than the we basin and could compose 60 to 70% of the dredge volume from the east basin The total velum of fine sediment to be removed from the lagoon is between and 1.0 million cubic yards.
The sand fraction in the lagoon lies below the clay and silt layers and represents a larger proportion of the dredge volume in the western lagoon the eastern basin. The median grain diameter of the sandy sediments in tt western lagoon is .18 mn while the median grafn diameter for the same laye the east basin is .15 m. There are about 1.8 to 2.0 million cubic yards sand to be removed. These sandy sediments are coarse enough to be used fc beach nourishment should bioassay and toxin testing prove negative (Jenkin Skel ley, 1986).
These two sediment layers must both be tested for the concentration of tox chemicals, nutrient levels and other substances. The results of these tes will determine where the dredge spoils can be disposed of and could have a great effect on the cost of the project. Detailed soils engineering studi will determine exact quantities and conditions of spoils. Therefore we wi outline a number of possible options for dredge disposal and construction methods.
The most inexpensive method of dredging the lagoon is to use dry land techniques. Construction would begin in the east basin and progress to tf west. In the early spring (February-March) the lagoon mouth would be oper and the lagoon drained. Inflowing streams would be diverted by pipe to tt ocean, stormdrains or other appropriate outlet. Groundwater would be pumr out of the basin and the lagoon bottom dried out. Rubber tired scrapers c comparable equipment would remove the silt and clay layers and they would disposed of in one or several ways. The silt-clay spoils must be drfed pr to disposal and if possible the adjacent north shore uplands owned by Sam and HPI should be used.
Once dried and depending upon the test results of the Spoils they could be
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These corings reveal
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3) used as landscaping fill on adjacent properties; or 0
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4) disposed of in the ocean at a site approved by the Environmental Protectlon Agency.
The preferable optfon would be to place the spoils on adjacent properties landscaping fill should they pass all needed tests for this use. Samnis Properties has offered to accept approximately one half million cubic yard fill a canyon on their property. A site is still needed for the remaining 500,000 to 800,000 cubic yards and the golf course proposed by HPI has bee suggested by several plan participants. Placement of the spoils on adjace properties would avoid the use of public roads. If the spoils are transpa to other sites for disposal, additional equipment will be needed as the rn tire scrapers can not travel public roads, A fleet of dump trucks would b used and would be loaded at the end of Lagoon Lane or other appropriate ac points.
Both the landfill and ocean dfsposal options are prohibitively expensive a nearby landfills may not have the capacity for suck a large disposal proje Remixing the spoils for use as structural fill will require some additiona space but could possibly be feasible.
The levee for the freshwater marsh would be constructed from on site dredg spoils and is the only feature of the lagoon project which could utilize t clay-silt spoils. The interior of the marsh also needs to be dredged to c a bottom elevation (+2.5 ft. MSL) such that water impounded in San Marcos could flow by gravity into the marsh. A suggestion for usfng the marsh as recipient site fer silt-clay spoils to raise the base level would require punping water into the marsh, and thus increase yearly operating costs and not recomrsended.
The method for dfsposal fo the silt-slay layers will be determined after elutriate, bioassay and sol1 engineering tests are completed through the environmental review, prel iminary engineering and permit processes.
The sand layers will also require certain toxicfty tests but they are of suitable size for disposal on local beaches. Elutriate tests and bulk sed analysis test will be required. The lagoon dredging will produce approxim 1.8 to 2.0 million cubic yards of sandy material. Agafn dry land methods be employed if possible as they are less costly than dredging. The majorf sandy spoils lie in the western basin. transported to the lagoon mouth for placement on the beach. Depending on type of construction used (dry land vs. dredging) the mthod for placement the spoils on the beach may differ. If dry land methods are used and scrai equipment can fit through the three bridges, the scrapers could deposit sal directly on the beach. A dirt haul road may be needed along the beach. I scrapers can't transport sand directly they would load it into dump trucks the end of Lagoon Lane for the east basin and Hwy 101 for the west basjn oi other appropriate access points. Dump trucks would use public roads to transport the sand to the beach for disposal. Some sandy spoils would be I to construct the least tern sites in the lagoon.
Disposal of sandy dredge spoils on Carlsbad beaches is not only convenfent the lagoon project but allows for nourishment of a badly eroded coastline.
These would be scraped up and
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0 Sand movement in this area has been interupted by the construction of Ocear harbor which traps southward moving sand. In addition, the sand supply ha! been depleted by the damning of most rivers and streams and year Found cia! of many lagoons such that sandy sediments deposit in the closed lagoon or behind the dam rather than being carried out to sea. supplying sand to the Carlsbad area begins about San Clemente and ends abor
Jolla. Generally sand volumes are deposited onto the beach by ocean waves spring and sumner and eroded off the beach during winter. Depending upon q amount of sand in the cell and the storm sizes, the width of sandy beaches this region varies.
The profile of the Carlsbad beaches has been measured in 1983 and 1984 (F1
et al, Seymour et al). The winter of 1982-83 saw extreme wave heights associated with El Nino. During the winter the large ston waves removed
cubic meters of sand per meter of beach. This erosion quantity is associa with extreme storm waves. The following year winter storms removed 20-35 I meters of sand per meter of beach. These erosion losses represent more av1 wi n ter storms .
As can be witnessed during a trip to the South Carlsbad Beach, sand is in supply and the beach is often made up only of cobbles. The dredging of
Batiquitos Lagoon has as a by product the placement of as much as two mill
cubic yards of sandy spojls into this littoral cell. While deposition of amount just below Oceanside harbor progessing southward would be favorable the cost to truck this much material exceeds the costs of dredging it from lagoon (V. Hall, pers. corn.) Therefore, the placement of the material on
beaches likely will begin at the mouth of Batiquitos Lagoon and progress northward, One likely beach nourishment method would be the creation of 1 sand piles or dunes at the landward edge of the beach. These dunes could progressively pushed onto the beach to nourish the intertidal area. Numer
other methods are possible as are various management options to increase t longevity of the sand on the Carlsbad beaches.
The precise method for placement of the sand spoils on the beach and the m of beaches covered will be detenined through the environmental review, preliminary engineering and permit processes. Since State Department of P
and Recreation owns and operates most of these beaches, their concerns and
0 suggestions will help to determine what methods are used, However, all co estimates for the lagoon project assume that the sand spoils will be place
the beach in the most cost-effective manner.
Several constraints mrst be placed on the construction activities to prote existing resources of the lagoon. In order to minimize disturbance to the
lagoon wetlands, heavy equipment will enter and leave the construction are one or tw points where little or no vegetation is present. Several locat on the north shore of the eastern basin are appropriate. Access to the we basins will be more difficult and may need to be done under the Highway 10 bridge or from the fill site in the northwestern corner of the western bas
The beginning of project construction largely will depend upon the timing penit approvals and CEQA compliance. However the beginning of construct1
must be scheduled either prior to the beginning of the nesting season of t
The littoral cell
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Least Tern or following fledging of all chicks. The nesting time period stretches from April or May to August or September. If construction beg11 anytime during this period it would dlsturb the terns and cause a loss of nesting season. S. it is more difficult and expensive to construct during the wet season, a 1 date would be praferrble. By timing the construction of the project to PI the tern, the construction should not affect any other endangered species
Maintenance of the Lagoon Channel
Waves such as occurred during the extremg storms of 1982-83 will no doubt again, These waves have enough energy to fill the lagoon channel dnlet W. sand and cobbles and overcome the scouring energy of the tidal prism flow. out of the lagoon. There are no reliable predictions for how often such extreme storms would occur; there are also no foolproof predictions of hok the lagoon channel will maintain Itself under nom1 winter storm waves. addition, the large concentration of cobbles presently blocking the lagoor mouth is a major concern in the self maintenance of the lagoon mouth. It not entirely clear that the proposed tidal prism will be able to consisten push these cobbles from the lagoon channel. Some type of back-up system i required to open the lagoon channel should it become clogged.
A number of ddfferent methods are possfble. The Highway 101 bridge and it supporting piers create a narrow constricted channel which does not allow certain types of equipnent to operate easily. Bulldozers and some dsedgin equipment will not be able to operate well to clear the channel. The recomnended method would be the use of a drag bucket which could scoop san cobbles out of the channel and redeposit them offshore. There are two alternative ways to set up a drag bucket system,
The recomnended alternative is discussed in Jenkins & Skelley (1986). fol 1 owl ng excerpt describes the system,
Therefore constructfon my begin In arch OP October.
The
'Drag buckets have been used successfully in both inlet maintenance and beach nourishment from offshore deposits. The best desdgn has been the Sauerman drag-scraper. It is a bottomless bucket with three vertical s a lid, with a front side open to the scraping direction and a backside that is closed. The bucket is dragged seaward through the inlet by a sl mounted wfnch operating an endless loop drag-cable system to a block ani tackle moored offshore to the bottom. As the bucket is dragged seal it fills with sediment until reaching capacity. On the return haul to shore, the contents of the bucket are deposited out the open end at the point of reversal.
"Considering the inlet dimensions at Batiquitos, as well as the volume of sand that had to be excavated to reopen the lagoon in September 1985 is estimated that an Inlet bar would typically comprise about 300 cubic yards. Practical experience has shown that 300 round trips of the buckc are feasible per day. Therefore a 3 cubic yard capacity bucket would a clearing of the inlet in about 1/2 day. This would require a 260 horse! winch to drag a bucket of this size. anchored seaward of the mean shoreline by about 850 feet fn order to avc
The block and tackle should be
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0 seasonal burial by bar formations. A 350 pound Danforth anchor would provide a 7 kip mooring with a 2:l safety factor for the block and tack The block and tackle is secured to the anchor using a length of pig-tail sufficiently long to reach the surface at the mooring point. A marker 1 is attached to the block and tackle at the pig- tail. The endless loop cable must be recovered upon completion of the scraping operation. Thi: involves a mall boat recovering the marker float, raising the block an( tackle to the surface and disconnecting it from the pig-tail. The drac cable and block and tackle are then retrieved by using the shore muntec winch. The pig-tail and anchor are left on the bottom with the marker i attached for future relocation. To initiate scraping operations, a polypropylene rope must be brought out from the shore to the marker floi There a small service boat is anchored. Using the propylene line a win( the service boat will haul the drag cable and block and tackle assembly to the mooring site. The marker float line is used to retrieve the pig. and reattach the block and tackle. This procedure requires relatively ( seas to initiate. Furthermore recreational swimning must be prohibitel feet to either side of the drag cable during scraping operations."
This system would only be set up when needed and is relatively inexpensive operate. The shore mounted winch would be located on the fill site at the northwestern corner of the western lagoon basin. The drag bucket system wc be able to remove both sand cobbles from the channel. The drawback to thil system is the hazard it poses to swimners when the cable is in use and its limitations for use in heavy seas.
The second alternative involves construction of a pier for use as a base fc drag bucket system. This alternative involves:
"This approach would build a short pier, 400 feet in length and paralle the axis of the inlet channel. The pier should extend 300 feet seaward 100 feet into the lagoon channel. The deck of this pier would be at t elevation of the Highway 101 bridge, +19 feet MSL, and should provide a( to the highway for a mobile crane. The mobile crane is operated on the of the pier and is used to drag the Sauerman bucket seaward to perform scraping operations in the inlet channel. The scraping operati 01 could be performed from the pier in higher sea states than could the dr(
0 cable method, and would not involve the potential hazard to the swim associated with the drag cable. recreatioi fishing pier when scraping operations are not being performed. The estimated cost in building such a pier is $2,000 per foot, or a total o $800,000. '
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The pier could be used as a
The disadvantages of this system are its high construction costs, high maintenance costs and the need for a public agency to operate the pier and accept ownership and liability. For these reasons this plan recomnends thc of the first alternative, a drag bucket system using an offshore bottom roc block and tackle.
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A1 terna t f vc P1 ans
The primary differences between A1 ternatives TWO, Three and the preferred Alternative is the size of the proposed tidal prism and thus the dredging
requirements and the acreage of intertidal and subtidal habitats. Most 0 features of the plan -- construction methods, mafntenance of the lagoon channel , sediment control program, pub1 f c access trai 1 , lagoon ownership management, operation and maintenance and monitoring program remain the si for all three alternatives. The habitat acreages for the freshwater mars Least Tern nest slteo remain the same as the preferred alternative. The acreage of salt/brackish marsh differs slightly due to differences In the dredging proposed for the far western basin. dfscussion will focus on the major differences between Alternatives Two ai Three and the Preferred Alternative.
A1 ternative Two
This alternatfve would have a potential mean diurnal tidal prism of 60 mi' cubic feet and a potential perigean spring tidal prism of 89 million cubic feet. This size tidal prism may not necessarily be large enough tomaintai open lagoon entrance channel against large storm waves. As outlined for 1 preferred a7 ternative, the estimation of closure conditions for lagoon ant estuary entrances is not an exact process. As illustrated in Ffgure 7, Alternative Two appears to fall in the "never closed" portion of the grapt However, this line of separation is only approximate. The minimum tidal 1 needed to keep a coastal lagoon 'always open" can only be estimated withfr factor of two. Should th-is line be offset by a factor of two, Alternative would border on the "infrequently closed" category. There is not as much assurance that this size tidal prism will sustain an open lagoon channel 2 there is for the preferred alternative,
The hydrodynamic mdel was used to estimate the differences between the ac and the potential diurnal tidal prism. The model found the difference was small, approximately 5%.
Consistent with the mdel findings, Alternative Two proposed very limited dredging in the far western basin. A subtidal channel would be dredged bu area to the south of the channel would be left as would a portion of the a to the north of the channel. The model showed not significant dampening o tidal flows with this configuration.
The dredging of the lagoon under Altematfve Two would PemOve approxfmatel million cubic yards of material. resemble those for the preferred alternative (Figures 3 and K) excepting t intertidal zone would increase in size slightly and the subtidal zone woul diminish in width slfghtly. The dredging is designed to conserve most of existing marsh acreage. Tidal heights in the lagoon under Alternative Two would approximate those created under the preferred a1 ternative.
The cross-sectional area of the entrance channel would be about 1508 squarr feet below 61. The side slopes would be riprap lined at a 3:l slope throi the beach to the KLW line. The piers on the Highway 101 bridges would ret fortffication and protection from undercutting.
Therefore, the following
The cross-sections of the lagoon would
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Alternative TW would create the following habitat acreages: a
Subtidal Habitat 171 Intertidal Habitat 2 15 Sal t/Brackish Marsh 143 Freshwater Marsh 33 34 Least Tern nesting sites -
Total 596 acres
The distribution of these acreages is illustrated in Figure N.
Alternative Two would create a larger intertidal habitat and smaller subti habitat than the preferred alternative. This difference would create a la area of habitat for intertidal invertebrates and thus a larger feeding hat for migratory shorebirds, resident lagoon bird species and some waterfowl. subtidal habitat would allow a smaller area for ocean and estuarine fish species, subtidal zone invertebrates and diving ducks, gulls and terns. T acreage of other habitat types does not differ appreciably from the prefer * a1 ternative.
The primary drawback to Alternative Two is the uncertainty regardfng the s of the tidal prism and its adequacy for maintaining an open lagoon channel With the slightly larger tldal prism of the preferred alternative, the assurance of retaining an "always open" inlet is greater.
Should the lagoon mough close in larger stonn waves, it could be several d to several weeks to reopen the mouth using the drag bucket system proposed The drag bucket system cannot be used in heavy seas and could not be opera until calm weather prevailed. If several storms occur in a MU, the delay could reach several weeks. The delay could reach an even larger time peri should equipment failures or personnel problems occur.
During the time the lagoon is closed, the water in it will be trapped as n fish and other aquatic organisms. If impounded for any length of time, dissolved oxygen levels in the lagoon could drop, algae blooms could incre as would nutrients, salinity and temperatures. The fish and other aquatic creatures would eventually die. This problem should generally be avotded assuring a larger tidal prism to help maintain the lagoon opening.
A1 ternative Three
Alternative Three has a tidal prism which is considerably smaller than eiti Alternative Two or One. The potential mean diurnal tidal prism would be 41 million cubic feet. The smaller size of the tidal prism is not large enout maintain a lagoon opening against large winter storm waves. indicates, this alternative is within the area of the graph for lagoons thl are "always open". However, since this estimate Is approximate and could I offset by a factor of two, this alternative would then become "Infrequentl, closed". There is very little assurance that the lagoon inlet will remain
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As figure 7
a most of the time for Alternative Three.
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The hydrodynamic model was used to estimate the differences between the a( and the potential diurnal tidal prism. The model found the difference wa: small, about 5%.
The dredging of the lagoon under Alternative Three would remove about 1-3 million cubic yards of material. A large portion of the dredged area WOU' intertidal with a wide subtidal channel running the length of the lagoon. dredging is designed to conserve most of the existing marsh acreage. A 14 area of dredging is proposed for the far western basin. Tidal elevatlons the lagoon under Alternative Three would approximate those created under 1 Preferred A1 ternative (see Table 19).
The cross-sectional area of the entrance channel below MSt would be about square feet. Side slopes would be 3:l and lined with riprap through the t to the MLLW line. As with Alternatives One and Two, the piers for the Hig 101 bridges will require fortification from undercutting.
Alternative Three would create the following habitat acreages:
Subtidal Habitat 71 Intertidal Habitat 315 Sal t/Erackish Marsh 143 Freshwater Marsh 33 34 Lest Tern Nesting Sites -
Total 596 acres
The distribution of these acrages is illustrated in Figure 0.
Alternative Three would create a very large area of intertfdal habitat and small area of subtidal habitat. This plan would significantlyincrease the habitat area for intertidal invertebrates and feeding area for migratory shorebirds, resident lagoon species and some waterfowl over the preferred alternative. Subtidal acreages would allow for a decrease in this habitat the preferred alternative with attendant decreases in proposed ocean and estuarine fish habitat and feeding area for diving ducks, gulls, and terns The acreage of other habitat types is about the same as the preferred a1 ternative.
Alternative Three would not create an adequate tidal prism to assure that * lagoon channel would remain open in most large stonns. Considerable effor. would be needed to keep the lagoon functioning as a tidal system. The drac bucket system would have to be used frequently and long delays in reopenin! lagoon mouth would occur. It might prove useful to use a different channe maintenance system for this alternatlve, such as the pier and drag bucket system. This other system does not require calm weather for its operation could more effectively maintain the channel under this alternative.
Since lagoon closure would be more frequent under Alternative Three, the problems associated with this condition would be more prevalent. Unless a efficient channel mintenance system were instal led, closure periods could quite lengthy. The aquatfc organisms trapped inside the lagoon would undei
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stress as tenperatures and salinl ty increase, dissolved oxygen decreases 11 algae blotnns.and nutrients increase. Many fish and other creatures could as the lagoon conditions change from a tidally flushed system to an impoun system. Under this alternative, the only way to avoid these problems is t install a very efficient lagoon maintenance system and have the funds and personnel available to run it.
No Project A1 tematfve
The No Project Alternative would leave the lagoon in its present state wit1 enhancement. The lagoon would continue to function as a seasonal wetland l be dependent upon freshwater inflows for Its primary water source. The wa quality problems which currently exist would continue. Probably the great( change which would occur, barring any other enhancement proposals, would bl slow filling of the lagoon with sediment. During November and December of 1985, portions of the east basin were covered with .4 to .7 feet of new sediment. As the watershed continues to develop and upstream grading and agricultural practices remain relatively unchanged, the lagoon wi 11 contin fill with sediment. Eventually, much of the eastern basin may be rarfsed sufficient elevation that marsh wlll replace sand/mud flats. If sediment deposits are great enough, they could increase elevations such that rlparii trees wll1 replace salt and brackish marsh as is now occurrlng at the mutl Encinitas Creek. Although the lagoon would not loose habitat area, the tyl of habitats may change.
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a EXHIBIT B
DEFINING SUPPORT TO BE PROVI DED TO CARLSBAD BY BOARD TO ACQMPL ISH BATIQUITOS LAGOON ENHANCEMENT PROJECT
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1. Statement of Purpose
This Exhibit constitutes a separate agreement between the City of Carlsbad (CARLSBAD) and the City of Los Angeles acting by and through the Board of Harbor Commissioners (BOARD) to specify the payment and support obllgations of BOARD to CARLSBAD pursuant to the Agrement for the marine habitat enhancement of Batiqui tos
Lagoon (Principal Agreement) to which this Exhibit is attached. It is the intent of this Exhibit to require the BOARD to pay all direct and indirect costs incurred by CARLSBAD as required by the Principal Agreement and to provide a1 1 support required by CARLSBAD in order for CARLSBAO to perform its obligations under the Principal Agreement provided CARLSBPD agrees that BOARD'S respons ibil i ty to reimburse costs CARLSBAD has incurred shall ccmmnce only after the monies deposited by PACIFIC TEXAS into the Escrow Account under the terms of California Coastal Commission Permit No. 5-85-623-A have first been expended subject to the provisions of Section 5(b) of the Principal Agreement.
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2. Processing of Environmental Documents and Permits
a. Subject to exhaustion of the above referenced Pacific Texas deposit, pursuant to Section 2 of the Principal Agreement
CARLSBAD'S processing of any permits, approvals, entitlements, or reports for consideration by CARLSBAD or any other legislative or administrative agency provided , however, Project Planager must approve in advance expenditures of more than Ten Thousand Dol lars ($10,000). a include, but not be limited to, the salaries of any CARLSBAD employees, fees for consultants or special counsel , and cost
of providing public notices and any overhead.
and subject to the exhaustion of the above-referenced Pacific Texas deposit, BOARD shall pay CARLSBAD its costs as defined in this Agreement after first providing Project Ilanager a monthly itemized billing detailing services provided ana costs incurred. CARLSBAD shall account to BOARD for all costs incurred upon canpletion of the tasks assigned to
CARLSBAD under Section 2 of the Principal Agreement.
e BOARD shall pay all costs directly or indirectly incurred by
Such costs shall
b. In accordance with Section 5(a) of the Principal Agreement
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e c. Processing and consideration of environmental documents shall be done pursuant to CARLSBAD and applicable state and federal law.
3. Project Construction
a. The obligations regarding Project's design and construction are generally set forth in Sections 3, 4 and 5 of the Principal Agreement. BOARD shall indemnify CARLSBAD for any direct or indirect costs incurred by CARLSBAD in the performance of CARLSBAD'S obligations under Sections 3, 4 and
5 of the Principal Agreement. Such costs shall include, but
providing public notices and any overhead. Construction shall be accomplished according to the provisions of the CARLSBAD lvlunicipal Code and applicable state law. Contracts shall be awarded pursuant to the law and policies applicable e to other public works projects of CARLSBAD. Contracts shall be between the CARLSBAD and selected Contractor(s). contract for construction will be awarded to the lowest responsible bidder. CARLSBAD understands that pursuant to the Principal Agreement, BOARD reserves the right not to proceed with Project's construction. CARLSBAD agrees that
specifications that CARLSBAD reserves the right not to award a contract for any reason. contract will be awarded and all bids will be rejected if BOARD is not willing to proceed with the Project. contract is awarded, CARLSBAD will be reimbursed its costs associated with construction and the construction contractor will be paid from the funds described in Section 5(b) of the Principal Agreement.
The following resources will be provided to CARLSBAD by BOARD under the provisions of this Exhibit and Sections 4, 5
and 9(a)(i) of the Principal Agrement.
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e not be limited to, the salaries of any CARLSBAD employees,
, fees for consultants or special counsel , and cost of
The
e Project bidders shall be informed in the Construction
CARLSBAD also agrees that no
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b.
A full-time Project Manager dedicated to the Project fran the initial environmental review stage through to the completion of the construction phase of the Project's implementation program. The Project Manager shall be selected by mutual written agreement of CARLSBAD and BOARD fran a list of qualified applicants prepared by BOARD. With the written approval of CARLSBAD, BOARD may, frcm time to time, replace the Project blanager with an individual whose qualifications and/or experience are best suited for the particular phase of the Project. The Project Manager shall report to and take direction fran the CARLSBAD City Council as implemented through the CARLSBAD City Manager or his designee, provided, however, CARLSBAD agrees that it
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a will at all times consult with BOARD if BOARD expresses
any concerns regardi ng the project and will implement all requests of BOARD unless it expressly finds such requests are unreasonable. The Project Manager shall comply with all laws, rules and policies of the City of CARLSBPD and may be removed by BOARD or the CARLSBAD City Council , after consultation with BOARD, if his/her performance is in any respect unsatisfactory. The Project Manager shall be provided appropriate office space and facilities, if available, (phone, copier, files, etc.) by CARLSBAD. If leased space or equipment is necessary, the cost shall be paid by BOARD. The Project Manager may augment his/her staff in the manner set forth in his/her agreement with BOARD fran time to time as appropriate (e.g., clerical support). The Project Manager's duties and responsibilities shall include,. but are not necessarily limited to:
a (A) Managing consultants required to accmplish any of the prel imi nary design , envi ronmental rev1 ew, design, penni t processing, or construction management activities.
Preparing staff reports for and scheduling actions by CARLSBAD or BOARD including consultant selection, advertisement, bid opening and contract award .
Processing invoices, vouchers, etc. for timely payment by BOARD.
Processing progress payments to contractor(s).
Preparing progress reports to CARLSBAD and BOARD as appropriate. public information program on status of Project.
Preparing and submitting permit applications.
construction managers, surveyors as may be required .
Processing contractor payments, claims , change orders, stop notices, etc. during the construction phase for action by CAKLSBAD.
Coordinating Project events with CDFG, FWS, NMFS CARLSBAD, and BOARI staffs.
(B) 8
(C)
(D)
(E)
e
Establishing and maintaining a
(F)
(G) Supervising clerical employees, inspectors,
(H) e
(I)
The Project Manager shall, subject to the direction of control of CARLSBAD and BOARD as described above, have
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e complete authority to carry out the Batiquitos Project provided, however, that the Project Flanager shall have no authority to commit CARLSBAD or BOARD to the payment of any money or the performance of any act without the appropriate prior approval s. by the Project blanager shall be let and administered according to CARLSBAD law and policy or state law as applicable to CARLSBAD.
Reimbursement for CARLSBAD employee salaries and expenses directly related to Project's implementation
upon receipt of monthly certified statements.
111. Funding for consultants hired to accomplish preliminary engineering studies, environmental review, obtaining permits, final design, entitlements, or approvals.
IV. Hiring and funding of necessary inspectors, surveyors, resident engi neer(s) , contract administrator(s) for the construction phase of the project.
V. Necessary support from BOARD staff resources including:
A1 1 contracts entered into
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(A)
(B) Envi rormental speci a1 i sts
(C)
BOARD'S Pacific Texas Project Managers 0
Engineering review of preliminary and final project designs , estimates, schedules and calculations
(D) Legal assistance
construction of the Project.
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VI. Furnishing all plans and specifications for
c. Contracts necessary to implement the Batiaui tos Project
. shall be entered into by the City of CARLSBAD in conformance
with its applicable laws and regulations. Contract expenses shall first be paid fran the Fifteen Million Dollar ($15,000,000) Pacific Texas deposit (Twenty Nillion Dollar
($20,000,000) deposit if the project costs exceed Fifteen Million Dollars). If the Batiquitos Project costs exceed Twenty Mil lion Dol lars ($20,000,000) , then BOARD agrees to pay the excess amount provided, however, if BOARD disputes the appropriateness of any such costs, whether more or less than Twenty Hi1 1 ion Dol lars ($20,000,000) then CARLSBAD agrees not to pay such costs so long as BOARD defends and indemnifies CARLSBAD against any related 1 itigation and provided further such costs shall be payable only frun the Harbor revenue fund.
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a d. CARLSBAD and BOARD assume that any property rights which are
necessary to undertake the project will be acquired by voluntary dedication or purchase. condemn any interests in land to undertake the construction or maintenance of the Project, CARLSBAD agrees it will file
and pursue to judgment the necessary condemnation action and BOARD agrees that the costs of such suit and the judgment shall be paid in the same manner as any other project related costs under this Agreement.
e. CARLSBAD shall first be reimbursed for project related costs from the fund deposited with the Coastal Commission in the e manner as the Commission staff, CARLSBAD and BOARD shall agree. If and when this fund is exhausted, BOARD shall reimburse CARLSBAD for all costs which this Agreement covers
within thirty (30) days of receiving a monthly certified statement frm CARLSBPD. As mentioned above, if BOARD disputes any costs claimed by consultants or contractors , CARLSBPD shall not pay such costs so long as BOARD defends and indemnifies CARLSBAD from any resulting lawsuits.
To the extent that services are not provided by a Project Manager CARLSBAD may hire and pay for consultants, surveyors , resident engi neer(s) , contract administrator(s) , legal
accomplish its obligations under the Principal Agreement. However, before independently retaining such consultant CARLSBAD agrees to first make written request to Project Manager and BOARD to provide the needed services. To the extent that the payment for these persons is not addressed by the funding and payment provisions of the Principal Agreement, BOARD shall upon receipt of a written statement, reimburse CARLSBAD for any payments made by it.
If it is necessary to
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e counsel and experts, deemed necessary by CARLSBAD to
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4. Hold Harmless
0 a. BOAID shall defend, indemnify and hold harmless CARLSBAD and the State of California (STATE) from any and all claims, liabilities, damages, losses or causes of action, of whatever nature (contractual , tortious, or otherwise) resulting or arising from the performance of the Principal Agreement or this Exhibit unless the claim, liability, damage, loss or cause of action arises solely from the intentional actions of CARLSBAD or STATE. BOARD will be responsible for all litigation which may arise out of any of the construction contracts and for resolving or attempting to resolve all claims arising out of the construction contracts. shall not be responsible for payment of any cost overruns; to the extent that the cost of construction exceeds the funds deposited, BOARD shall indemnify CARLSBAD. The provision is intended to obligate BOARD to protect and defend Ct'RLSBAD and STATE and to pay any settlement or judgment against CARLSBAD
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0 or STATE resulting from the performance of the Principal Agreement or this Exhibit unless CARLSBAD or STATE intentionally fails to perform their express ob1 igations and the failure is the sole cause of the damage, injury or loss.
It is agreed that any claims arising from this Agreement and the Lagoon Enhancement Project wi 11 be treated as fa1 li ng under the Cal ifornia Tort Claims Act Government Code Sections 310 et seq. and that the City of CARLSBAD, City of Los Angeles, and STATE their Boards, officers and employees will raise all applicable immunities and defenses if a claim is filed against any entity.
The bidding contracts and specifications entered into between CARLSBAD and the necessary contractors and consultants will a1 1 have the fol lowing provisions provided, however, that if it is not possible for a prospective consultant or contractor to reasonably meet one or mre of the insurance requirements , then CARLSBAD , after consul tation
with BOARD may waive the requirement. Before any such waiver
shall be granted, BOARD shall first be provided an opportunity to itself purchase additional insurance if it desires.
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e I. Indemnification and Insurance.
The contractor or consultant retained pursuant to this Agrement shall at a1 1 times re1 ieve, indemnify, protect and save harmless (1) the Cities of Los Angeles
(i ncl udi ng its Harbor Department) and CARLSBAD ( CITIES)
and (2) the State of California (STATE) and any and all of their boards, officers, agents, consultants and employees from any and all claims and demands, actions, proceedings,' losses, liens, costs and judgments of any
kind and nature whatsoever , including expenses incurred in defending against legal actions, for death of or injury to persons or damage to property including property owned by or under the care and custody of Cities or STATE and for civil fines and penalties, that may arise from or be caused directly or indirectly by:
(A) Any dangerous, hazardous , unsafe or defective condition of, in or on the praises which are the subject of this Agreement of any nature whatsoever, which may exist by reason of any act, omission, neglect, or any use or occupation of the premises by Contractor or Consultant, its officers, agents, employees, subcontractors or subconsul tants or
Any operation conducted upon or any use or occupation of the premises by Contractor or
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(B)
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0 Consultant, its officers, agents, employees, subcontractors or subconsul tants under or pursuant
to the provisions of this contract or otherwise;
Any act, omission or negligence of Contractor or
s,ubcontractors or subconsul tants regardless of whether the negligence of the City of CARLS6AD or the City of Los Angeles or STATE contributed to such act or failure to act;
(C) a Consultant, its officers, agents, employees,
0 (D) Any failure of Contractor or Consultant, its officers,. agents or employees to comply with any of the terms or conditions of this contract or any applicable federal , state, regional , or municipal law, ordinance, rule or regulation;
(E) The conditions, operations, uses, occupations, acts, omissions or negligence referred to in Subdivisions (l), (Z), (3), and (4), existing or conducted upon or arising from the use or occupation by Contractor or Consultant on any other premises within the City of CARLSBAD related to
The Contractor or Consultant also agrees to indemnify CITIES and STATE and pay for all damage or loss suffered by CITIES and STATE including but not limited to damage to or loss of CITIES' or STATE'S property caused by or arising out of the conditions, operations, uses, occupations, acts, omissions or negligence referred to in Subdivisions
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(A), (B), (C), (DL and (E).
The Contractor or Consultant agrees that it will maintain the insurance specified in the contract. All such insurance shall be written at such limits and with such companies as are acceptable to CITIES and STATE and the Contractor or Consultant shall provide CITIES and STATE with proof of said
i nsurance as speci f i ed below.
I I. Workers ' Compensation.
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(A) The Contractor or Consultant will be required to secure the payment of compensation to its employees injured while performing work or labor necessary for and incidental to performance under this Agreement in accordance with the provisions of Section 3700 of the Labor Code of the State of California.
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(8) The Contractor or Consultant shall file with
CITIES one of the following: consent to self-insure issued by the Director of Industrial Relations, State of California, 2) a certificate of Workers ' Compensation insurance issued by an admitted insurer, or 3) an exact copy or duplicate thereof of the policy certified by the di rector or the insurer. Such documents shal 1 be filed prior to commencing the work of this Agreement.
Where the Contractor or Consultant has employees who are covered by United States Longshoremen and Harbor Workers' Compensation Act coverage, the Contractor or Consultant must furnish proof of such coverage to the satisfaction of CITIES. It is suggested that the bidder consult its insurance
construction methods will render its employees subject to coverage under the Act.
1) a certificate of
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111. Liability and Protection and Indemnity Insurance.
(A) The Contractor or Consultant shall furnish a pol icy of comprehens ive general 1 i abi 1 i ty insurance, including endorsements for contractual liability assumed, and automobile 1 iabil i ty insurance, in which CITIES and STATE, their boards, officers, agents, and employees are named insureds or are included as additional insureds with the Contractor or Consultant. Contractor shall a1 so include an endorsement for products and canpleted operations insurance. Consultants shall provide errors and omissions insurance. The canprehensive general liability policy shall fully protect and save harmless the additional insureds frcm any and all claims for damages for bodily injury, including wrongful death, as well as from claims for property damages, which may arise from operations under and in connection with this contract, whether such operations be by the Contractor or Consultant or by any subcontractor or subconsul tant or anyone directly or indirectly employed by either of them and whether liability is attributable to the Contractor or Consultant or any of the named insureds. Such policy shall protect the City of tos Angeles and its Harbor Department and the City of CARLSBAD and the STATE their officers, agents,
and employees while acting within the scope of their duties, against all claims arising out of or
in connection with the work.
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Nothing herein shall be construed as limiting in
any way the extent to which the Contractor or Consultant may be he1 d legally responsible for damages to persons or property.
When the work of this specification requires the use of watercraft, the Contractor or Consultant must additional ly provide protection and indemnity insurance in the amount of $15,000,000 combined single limit for marine liability subject to the same terms as in A, By and C above.
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(C)
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(D)
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IV. Comprehensive and Special Hazard Insurance.
(A) During the progress of the work under this contract and until its final acceptance, the Contractor or Consultant responsible for the work shall have the charge and care thereof and shal 1 take every necessary precaution against injury or damage to any part thereof by the action of the elements, or from any other cause whatsoever whether arising fran the execution or fran the nonexecution of the work.
The Contractor or Consultant responsible for the work shall, at its expense, rebuild, repair, restore and make good all injuries or damages to any portion of the work from any and all causes before its ccmpletion and final acceptance, and shall del iver the work completed in accordance with the terms of the Contract.
work is encouraged (but is not required) to obtain comprehensive i nsurance covering the full i nsurable value of the work and providing protection during
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(B)
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a construction against perils of the elements, vandalism, malicious mischief, and to guarantee the Contractor's or Consultant's ability to perform any restoration required. The Contractor or Consultant may also need to insure against any special a construction hazards peculiar to the work.
V. The special insurance endorsement attached hereto as Attachment 5-1 shall be made available to Contractors and Consultants to satisfy the insurance requirements described above.
VI. The bidding specifications shal 1 require as a condition precedent to beginning any work that the contractor selected to perform the work provide a performance bond
in the amount of 100% of the value of the work and a payment bond in the amount of 50% of the value of the work.
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d. Insurance Documents and Submittals.
I. All required insurance shall be transmitted to the Project Manager within thirty (30) days of award of contract for approval by CITIES.
condition precedent to the right of the Contractor or Consultant to demand or receive payment for the work under the contract requiring such insurance. for payment will be processed until the required insurance has been approved by CITIES and no Notice to Proceed will be issued until such approval has been
g iven.
dupl icate" copies of a1 1 policies of required insurance
with personal ly executed signatures of authorized agent or representative. Facsimile signatures will not be approved. IN LIEU OF CERTIFIED DUPLICATE COPIES, CERTIFICATES OF INSURANCE INDICATIIiG THE REQUIRED
COVERAGES WILL BE ACCEPTED IF THE SPECIAL El4DORSEMENT APPEARING IN THE INSURANCE REQUIRErlEi4TS SECTION OF THIS SPECIFICATION IS EXECUTED AND ATTACHED TO EACH OF THE DUPLICATE CERTIFICATES. (Attachment 5-1)
Liability and protection and indemnity policies shall name as additional insureds the Cities of Los Angeles
and CARLSBAD and STATE, their boards, officers, agents, and employees, and nust contain a noncancellation clause exactly as fol lows:
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11. The approval of insurance by CITIES shall be a
No request
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111. Contractor or Consultant shall submit two "certified
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"It is agreed that the insurance provided herein will not be cancelled or reduced in amount until the Board of Harbor Commissioners and the City Attorney of the City of Los Angeles and the City of CARLSBAD and its City Attorney have been given 30 days notice by certified mail .I' 0
Such pol icies shall contain an endorsement substantially in the form of Attachment B-1.
e. Indemnity After Land Interests Transferred. 9 The STATE agrees that once it becanes the holder of the necessary land interest in the Lagoon and CDFG or any other
STATE agency begins to maintain the Lagoon, the City of Los Angeles shall no longer have an obligation to indemnify the STATE for any incidents occurring at the Lagoon thereafter.
5. Records and Accounts.
CARLSBAD through the Project Manager agrees to maintain all books, accounts and other records ("records ") related to this Agreement. These records shall be subject to examination, audit
and transcription by BOARD and any bond trustee associated with
bond funds expended on the project. These records shall be retained for at least four years following the term of this Agreement. Upon request in writing by the Executive Director of the Port of Los Angeles or Bond trustee or their designated representative, CARLSBAD shall furnish a statement of the exact location of all records and the name and telephone number of the custodian of these records. The statement shall be submitted within fifteen (15) days of the request and shall contain such detail and cover such period of time as may be specified in any such request.
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0 6. City Approval.
llhenever approval of CARLSBAD is required under the Principal Agreement or this Exhibit the approving authority is the City Ilanager unless the Carlsbad tlunicipal Code or other law requires the decision to be made by the City Council or other City agency or official.
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0 ATTACHMENT B-1
ENDORSEMENT FOR COMPREHENSIVE GENERAL LIABILITY AND FOR e PROTECTION AND INDEMNITY POL1 CIES
SPECIAL I KURANCE ENDORSEMENT NO. 1
Notwithstanding any inconsistent statement in the policy to which the endorsement is attached or any endorsement now or hereafter attached thereto, it is agreed (1) the City of Los Angeles, the Board of Harbor Comnissioners, the Harbor Department, and its officers, agents, and employees; (2) the City of CARLSBAD, and its Board, its officers, agents and employees; and (3) the State of California, its officers, agents and employees while acting within the scope of their e authority, are included as additional insureds with respect to all operations, uses, occupations, acts, and activities of the insured pursuant to Agreement No.
attributable to the named insured, or a combination of the insured
and additional insureds. Such insurance is to be primary and not e contributing with any other maintained by said additional insureds. The policies listed below shall apply severally as to each insured except that the inclusion of more than one insured shall not operate to increase the limit of the Company's liability; and the inclusion thereunder of any person or organization as an insured shall not affect any right which such person or organization would have as a claimant if not so included.
Name Insured and Address:
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between the City of CARLSBAD and , regardless of vhether liability is
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COVERAGES TO WHICH THIS EF FE CT IV E ENDORSEMENT DATE OF POLICY POLICY LIMITS OF INSURMJCE
ATTACH E S ENDORSEMENT NUMBER PERIOD LIABILITY COMPAt'4Y
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The policy(ies) shall not be cancelled or reduced in coverage until after the Board of Harbor Commissioners and the City Attorney of the City of Los Angeles and the City of Carl sbad and its City Attorney have each been given thirty (30) days prior written notice by certified mail, return receipt requested, addressed as follows: 0 Board of Ha rbo r Commissioners P. 0. Box 151 City of Carlsbad San Pedro, California 90733 1200 El m Avenue
Office of the City Attorney
Carl sbad, CA 92008-1989
8 Office of the City Attorney State Lands Commission P. 0. Box 151 1807 13th Street San Pedro, California 90733-0151 Sacramento , CA 95814
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e There are no deductibles or self-insured retentions unless otherwise noted. ($ deductible (or self-insured retention) for cove rage. )
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IN SURNICE COMP AtlY
AD DRESS :
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BY AUTHORIZED OFFICER
(No facsimile signature accepted)
0 TITLE:
AD DRESS :
TEL EPHON E :
e DATE :
APPROVED AS TO FORM
a JAMES K. HAHN, City Attorney City of Los Angeles
BY
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APPROVED AS TO FORM
, C.ity Attorney City of Carlsbad *
BY
VEH:lh csc3-72 50 10/ 14/87
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EXHIBIT C
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HABITAT EVALUATION
SUMMARY
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of the proposed
PACIFIC TEXAS PIPELINE COMPANY PROJECT
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and the proposed
BATIQUITOS LAGOON ENHANCEMENT PROJECT
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in the CITY OF CARLSBAD
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FESRUARY 1987
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Participants:
National Marine Fisheries Service
California Department of Fish and Game
port of Los Angeles
e U.S. Fish and Wildlife Service
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Section 1. INTRODUCTION
The Pacific Texas Pipeline Company (Pactex), a private corporation, propose to construct a crude oil pipeline system that would extend from the Port c Los Angeles, California to Midland, Texas. A 75-foot deep channel would 1: dredged in Los Angeles outer harbor and the dredged material used to create 110-acre (at MHW) landfill island. This landfill would be used as a berthir area to receive tankers of up to 225,000 DWT which would carry primaril Alaska North Slope oil and for locating a 4.8-million barrel capacity tar farm. The landfill in outer harbor would be constructed in waters about 32-4 feet in depth. The Pactex landfill area has been reduced in size due t changes in engineering design (now fully revetted with rock) and as a resul of California Coastal Commission permit conditions. The bottom footprint c the landfill was presented in the Draft EIR/EIS as 208 acres and was revist to 192 acres in the Final EIR/EIS and currently is calculated at 140.8 acres.
A joint environmental impact report/environmental impact statement (EIR/EI: was prepared for the Pactex project by the Los Angeles Harbor Department ar the U.S. Bureau of Land Management as co-lead agencies under the Californi Environmental Quality Act (CEOA) and the National Environmental Pol icy Ac (NEPA), respectively. The Los Angeles Board of Harbor Commissioners certific the Final EIR for the Pactex project in November 1985.
In early 1985, LAHD requested the participation of FWS, NMFS, and CDFG in tk assessment of biological impacts of the proposed Pactex project and in tl. formulation and assessment of a biological mitigation project. The fish ar wildlife impact assessment and mitigation is pertinent to CEQA, to tl. consideration of the required COE Section l9/404 permits and the Californi Coastal Act Port Master Plan amendment and coastal development permits. Tk loss of marine, coastal embayment habitats of outer Los Angeles Harbor fri dredge and landfill construction required for the proposed Pactex project wi discussed in the EIR/EIS. These habitats are principally of value nearshore marine fishes, numerous water-associated bird species and sor waterfowl. No significant terrestrial habitats would be impacted by ti proposed Pactex project in the POLA area.
In consultation with the staffs of the FWS, NMF5, and CDFG, potentii mitigation project sites between Point Conception and the U.S. Mexican borde were examined by POLA. The potential sites to mitigate the Pactex projec were narrowed to the following areas: 1) Los Cerritos wetlands - City ( Long Seach, Los Angeles County, 2) Batiquitos Lagoon - Cit-y of Carlsbad, 52 Diego County, and 3) Tijuana River estuary - San Diego County. The FW!
NMFS, and CDFG considered Batiquitos Lagoon to be a prime candidate for restoration project that was compatible with project mi tigation objective: California Coastal Conservancy, City of Carlsbad, local pr0pert.y owners, ar interested parties supported a restoration/rnitigation project at Batiquitl Lagoon.
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Section 2. DESCRIPTION OF THE MITIGATION PROJECT
Batiquitos Lagoon, 596-acre basin is located in Northern San Diego County, e within the corporate limits of the City of Carlsbad. The lagoon occupies ar elongated coastal basin that extends approximately 2.5 miles inland from thc ocean and one-half mile in width. Two freshwater creeks, the San Marcos an( the Encinitas, drain unto the upper reach of the lagoon. This lagoon, likc many others along the southern coast of California, was (and is) subject tc man's development. Substantial reductions in tidal volumes have occurred, most significantly within the last quarter of a century due to sedimentation.
In addition to the development in the uplands, primarily the San Marcos Rivet Valley, the western portion of the lagoon is constricted by three major transportation arteries: Pacific Coast Highway (Carl sbad Soulevard), ai AT & SF railroad bridge, and Interstate Highway 5. All of these receni e developments contributed significantly to the rapid increase in sedimentatior and the closure of the lagoon mouth to tidal influence except under extremc high tide and wave conditions, or high outflows. Seasonal freshwater inflob and the virtual elimination of tidal influence have resulted in a pattern 01 fresh or brackish water inundation after winter rains, followed by evaporatior resulting in very high salinities (60 parts per thousand) and large salt-flat: a in the dry season. This is particularly true in the 360-acre eastern lagoor basin, east of Interstate 5. In dry years, broad areas of the lagoon dry ui completely, creating bare sal t-flats and attendant odor problems.
These extreme aquatic environmental conditions limit the lagoon biota tc largely plankton and insects. Fishes are usually found only in the deepei e waters of the western lagoon (marine) and San Marcos Creek (freshwater), Inundated areas support substantial numbers of shorebirds and dabbling ducks The California least tern, a state and Federal endangered species, has nestec in several areas within the lagoon.
The upper lagoon has acted as a sedimentation basin for San Marcos an( a Encinitas Creeks; deposition rates have averaged 1.1 to 1.4 cm/year since thc early 1900's. Continuing sedimentation is further restricting aquatic habitats and left unchecked will convert the lagoon basin to uplanc conditions.
A complete description of Batiquitos Lagoon is found in Bati uitos La 001
1985) , Alternatives for Maintaining Tidal Circulation in the Batiquito: Lagoon, California by Scott A. Jenkins and David W. Skelly (February 1985) and the Draft Batiquitos Lagoon Enhancement Plan (1986) by the Californit Coastal Conservancy.
A process of evaluating various enhancement a1 ternatives at Batiquitos Lagooi has ongoing for a number of years by property owners, resource agencies local citizen interest groups (e.g., Batiquitos Lagoon Foundation) and thc City of Carlsbad.. The proposed ,Lagoon Enhancement Plan provided thc opportunity, in view of Pactex's mitigation requirements for the impacts a
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a Habitat Enhancement Study, by Keith MacDonald and C. Robert ~+ Feldmet
been a
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POLA, to develop an enhancement project at Batiquitos Lagoon which meets th goals of the interest groups, offsets the Pactex project impacts, and create excess habitat values for future fill projects in San Pedro Bay. These Lagoo Enhancement P1 an goal s include :
- restore tidal influence to the lagoon - retain existing marshland and create additional marshland, if desirable - preserve or enhance existing fish and wildlife resources - retain and enhance habitat for endangered species - maintain good water quality - provide public access 'to the lagoon shoreline, where appropriate - reduce sedimentation in a cost-effective manner - maintain an open ocean entrance - assure that the goals listed above are achieved and maintained i
The proposed Batiquitos Lagoon enhancement project is described in detail i the Coastal Conservancy's Draft Batiquitos Lagoon Enhancement Plan (1986). I addition to the preferred enhancement project, a range of alternativ configurations were evaluated. The main features of this project include th construction of a lagoon mouth channel approximately 200 feet wide across th existing beach, westerly of Carlsbad Boulevard. The channel will be line
with riprap to the low water edge of the beach. Through a combination o excavation and dredging, a large area of the lagoon will be reconfigured t establish subtidal and intertidal habitats. The volume of material to b removed will be sufficient to establish a tidal prism which will assur continuous tidal influence and daily scouring of the lagoon mouth. Suitabl material will be used for beach replenishment, if feasible. The levee (0 berm) will separate an area of the marsh from tidal influence thereb preserving the existing freshwater and brackish marsh habitat. Water will t: divered from San Marcos Creek to maintain the diked freshwater marsf Additionally, sediment catch basins will be placed upstream in the Cree channels that input to the lagoon.
Since shorebirds, dabbling ducks and the endangered California least ter (CLT) presently use the lagoon, the project is designed to result in no ne loss of habitat values for these species. Only the FWS and CDFG conducte this analysis of the net effect of each project alternative upon the existin habitat value for shorebirds and dabbling ducks. The restoration pla
. includes provisions for CLT nesting areas. No fewer than four nestin locations averaging about 8 acres each will be constructed within the lagoo system as determined by FWS and CDFG.
In addition to the preferred enhancement project (presently proposed), a rang of preliminary a1 ternative configurations were evaluated.
perpetuity
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Section 3. METHODOLOGY
The involved agencies(FWS, NMFS, CDFG, and POLA) utilized an agreed-upon habitat evaluation procedure to assess the impact area and the mitigation project.
The evaluation team of biologists from FWS, NMFS, CDFG, and POLA were responsible for familiarity with the existing biological information and studies pertinent to outer Los Angeles Harbor, Batiquitos Lagoon, and other appropriate coastal embayment habitats. POLA provided appropriate maps and preliminary engineering drawings of the proposed landfill construction. Maps, drawings, and recent studies of the Batiquitos Lagoon restoration a1 ternatives were provided by the Coastal Conservancy and by the affected property owners, HPI and SAMMIS, through their consultants. The team also reviewed an ongoing study, Assessment of - the Functional Values of Batiquitos Lagoon, beinc prepared by ldoodwardxlyde Consultants for the Coastal Conservancy.
All important activities, assumptions, and conclusions, directly related tc the habitat evaluation, were discussed or conducted mutually and cooperativelj by the evaluation team. The process utilized in this habitat evaluatior included the following general steps:
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Figure 1 presents a schematic diagram of the evaluation procedure.
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a) b) c)
d) e) mitigation site identification;
g) h)
i)
j)
k)
determination of proposed project scope; fish and wildlife resources likely to be significantly impacted; establishment of mi tigation goal ; definition of harbor cover type(s);
harbor and mitigation site evaluation species list development; formulation of habitat suitability indices for the project and mi tigation a1 ternatives; determination of habitat units for the project area and the mi tigation a1 ternative area; determination of the necessary size of the mitigation area to offset proposed project ; and determination of the potential excess habitat values (mitigation credits) available to offset future fill projects in San Pedro Bay for each a1 ternative.
0 f) conceptual design of mi tigation area construction;
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The fish and wildlife resources of concern in the landfill project vicinitj were water-associated migratory birds, such as gulls, terns, cormorants, browr pelicans, grebes, mergansers, and surf scoters, and coastal marine fishes suck as croakers, surfperches, California halibut, northern anchovy, flatfishes, sand basses, bay sharks and rays.
The accepted mitigation goal of the evaluation team was: no net loss 01 in-kind habitat value. The evaluation species included exclusively fishes anc birds. The evaluation species chosen for the harbor site and the compensatior site are either common to both systems or considered ecologically equivalent.
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A fundamental premise to the habitat evaluation procedure was that fisher resources would not be traded for avian resources, or vice versa. Since tt. existing habitat at Batiquitos Lagoon supports shorebirds, dabbling ducks ar the endangered California least tern, it was agreed that the restoratic project for Batiquitos must conserve the existing habitat values for thes species. Therefore, a separate evaluation was conducted by FWS and CDFG I assess the existing shorebird, dabbling duck and least tern habitat values ij Batiquitos Lagoon. This was a major factor in determining the preferrc enhancement/mi tigation project to be implemented at Batiqui tos.
Only a few habitat compensation measures are presently considered feasible fc offsetting habitat losses of harbor landfills. The principal measure z Batiquitos Lagoon is to restore unrestricted tidal influence to a significar portion of the lagoon and create and enhance coastal embayment habitats t excavating varying volumes of sediment. In its present condition, the are; of Batiquitos Lagoon which would be enhanced have little biological value t any marine evaluation species. Several a1 ternative enhancement plans thz achieve the restoration goals by creating different proportions of intertida and subtidal areas were proposed. The considered a1 ternatives with varyir ratios of subtidal and intertidal areas are described in Exhibit A.
The selected cover types used for the basis of the habitat evaluation were Los Angeles Marbor water surface area measured at the mean high water line k4.8 feet mean lower low water (MLLW); and Batiquitos Lagoon water surfac area measured from k5.0 feet MLLW to -5.5 feet MLLkJ. Only intertidal an subtidal areas within this evaluation range were evaluated. Areas tha contain California least tern nesting activity, salt marsh or freshwate marsh/sedimentation basin were not considered in the habitat evaliratio process.
The twenty (20) selected evaluation species or groups for. both the propose landfill and enhancement alternative sites are listed in Table 1. The habita suitabi1it.y indices for each species or groups at the proposed sites wer determined by the judgement of the team member(s) of each participating agenc based upon best available information and then averaged. The habita suitability indices ranged from 0.0 for no habitat suitability to 1.0 fo complete habitat suitability. Habitat suitability indices were derived fo the existing condition and the future condition at both the project irnpac site and for the alternative enhancement proposal sites. The landfill and th enhancement construction were assumed to he concurrent. The habitat loss fro outer POLA fill was assumed to be total and to have occurred between year zer and year one. Similarly, the Batiquitos Lagoon habitats in the areas to b restored were assumed to have little value for the evaluation species and tha full predicated habitat value would be achieved after the first year followin enhancement.
From the array of enhancement alternative previously evaluated, a preferre enhancement proposal was developed for implementation (see Table 2). Unde this proposal, 390 acres are available for restoration. rjased up0 preliminary engineering design, the net impact of the proposed Pacte
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construction in POLA outer harbor was determined to be 118.8 acres (see Table
3). Further refinement of the landfill and mitigation site engineering design may result in a revision to the acreages of the impacted and mitigation areas.
The habitat units per acre were calculated for the impact and enhancement sites by summation of the mean habitat suitability indices. The predicted habitat value losses at the Pactex landfill were tabulated by comparing the habitat value of the existing condition to the habitat value after the landfill is completed. Also the predicted habitat value gains at the 0 Ratiquitos Lagoon enhancement site were tabulated by comparing the existing habitat value with the future (enhancement) condition. Habitat unit gains and losses for the twenty (20) selected evaluation species were the units of measure and were exchanged on a unit-by-unit basis.
The net result of comparing habitat unit changes at the Pactex landfill a (habitat unit losses) with the net habitat unit changes as Batiquitos Lagoon (habitat unit gains) can be represented in a ratio that indicates the offset
requirements. Those trade-off ratios are 1.138 for Alternative 1, 1.062 for
Alternative 2, and 0.52 for Alternative 3 (Table 4).
As shown in Table 5, the aatiquitos Lagoon habitat gains would not onlj 0 compensate for the Pactex landfill (118.8 acres) in POLA, but would restore varying amounts of excess habitat value (83 to 325 acres of central San Pedrc Bay outer harbor habitat) that may be used to offset future landfill projecl in San Pedro Bay or other appropriate port districts.
In summary, the three alternative plans in Exhibit A, the Batiquitos Lagoor
Enhancement Plan, satisfactorily meet the following objectives:
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avoids harm to California least tern nesting activity,
avoids any loss of habitat value for shorebirds and dabbling ducks,
e 3. offsets marine resources and habitat loss from the Pactex landfill 2 and
4. Would provide additional habitat values which would be counted a:
mitigation credits that can be used to offset future San Pedro Baq landfill. a
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Figure 1: Habitat Evaluation Process Flow Diagram it define project
.rp-{el determi ne habitat
suitability indices evaluation species
for project area
1. -k-----dTI determi ne habitat def i ne mi ti gat i on
area and impacts sui tabi 1 i ty indi ces
calculate the habitat calculate the habitat
units in the -- - units in the project TI miti ation area i-I ?\-----{T[ determine net gain determine net loss
within project within mitigation area
s - m - - -,/““‘“““:I and likely impacts mitigation goal
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calculate mitigation area
required to offset project
area loss
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determi ne excess (mitigation
habitat value) avai lable for I banking
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Table 1: Evaluation Species and Groups for the Pactex Landfill And Batiquitos Lagoon Enhancement Projects e
1. California halibut Paralichthys californicus 2. White croaker Gen onemus lineatus 3. Gobiedae '*w and cheekspot gobies, 1 ong- jaw mudsucker)
5. Bay ray Fa1 i forni ca
6. Bay sharks leopard shark and smoothhounds) 7. California corbina Menticirrhus undulatus 8. Anchovy species -(northern slough, and deepbody) 9. Oueenfish Seriphus pol i tus
e 4. Diamond turbot H so setta guttulata
Atherino s affinis 4 nebul ifer e 10. Topsmelt 11. Barred sand bass 12. Shiner surfperch Cymatogaster aggreqata 13. Soni ta/barracuda Sarda chiliensis/Sphyraena argentea 14. kfhi te surfperch Phanerodon furcatus 15. California killifish Fundulus parvipinnis
17. California tonguefish Symphurus atricauda
18. Striped mullet 19. Diving ducks
20. Gull s/terns/corrnorants
16. Spotted sand bass Paralabrax maulatofasciata
Mu il cephalus P- scoters, mergansers, ruddy, bufflehead)
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Table 2: Summary of Batiquitos Lagoon Enhancement Plan Alternatives
A1 ternative 4. A1 ternative 2 A1 ternative 3
Area of intertidal 170 217 317 (Acres)
(Acres)
(Acres)
(Acres)
(Acres)
Area of subtidal 220 171 71
Area of salt/brackish marsh 139 141 141
Area of freshwater marsh 33 33 33
Area of least tern habitat 34 34 34
Table 3:Pactex Landfill Project Impact*
l Actual Gain(or loss)in Acres.(140.8)
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HabitatSoft bottom - footprintdeep water protected
Piling (within 35 ft. ofwharf face)Shallow pilingDeep piling
3enthic side slopeDeep water protectedDeep water unprotected
Rocky dike habitat (exposed)Shallow water protectedDeep water protected
Total
Weiahted Weighted Gain
i(;rA;;;:)
(140.8)
1.0 1.0 1.01.4 0.5 0.7
1.4 1.00.9 0.5 ::1
4.3
12.1 ::;lz!
(119.7)(118.8)
* Rased on a preliminary engineering design using current NOAA harbor bottom
topographic data and due to a CCC permit condition, the landfill footprintarea of such, impact has been revised to 140.8 acres.the biological With application ofmitigation procedure (using wildlife agencies'weighted
values) described in Appendix F of the Draft 2020 Plan (COE, 1984), the netimpact of the proposed Pactex construction in POLA outer harbor was
determined to be 118.8 acres.This includes mitigating for the water areaabove the rocky slope to the toe of the landfill footprint such thatfurther mitigation for this area,if filled in the future, will not berequired.
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Table 4:Summary of Habitat Evaluation For Pactex Landfill And Batiquitos LagoonEnhancement Plan Alternatives
l
PARAMETER EVALUATION SITES
PROJECT BATIQUITOS LAGOONLANDFILL SITE ENHANCEMENTAlternative 1 Alternative 2 Alternative 3 *
1.Cover Type AreaEvaluated (acres)
2.Intertidal/subtidaldistribution withinevaluation area (%)
3.Existing condition *
(existing habitat
units/acre)
4.Future condition(future habitatunits/acre)
5.Net habitat units/acre
(4.-3.)
6. Offset ratio(Net HU project)(Net HU restoration)
7.Area of Batiquitosenhancement required
118;8 390 388 388
9.84 0.90 0.90 0.90
0 12.10 11.35 6.02
(9.84)11.20 10.45 5.12
44/56 56/44 82118
*
1.138 1.062 0.520
to offset Pactex landfill(Cover Type Area;acres of Batiquitos)
Offset Ratio
(104.4)(111.9)(228.5)
* Excluding shorebirds and dabbling ducks which were evaluated separately. '
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Table 5: Summary of Habitat Evaluation For Batiquitos Lagoon Enhancement
PARAMETER Batiquitos Lagoon Enhancement Plan A1 ternative 1 A1 ternative 2 A1 ternative 2
1. Predicted habitat units 443 8* 41 2 1** 201.8***
Plan Alternatives and Outer Harbor San Pedro Bay
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gained from Batiquitos
central outer harbor - San Pedro Bay****)
pactex landfill (= acres
San Pedro Bay****)
available after Pactex
project for future mitigation
harbor San Pedro Bay****)
e enhancement (= acres of
2. Habitat units lost from (118.8) ( 118.8) (118.8)
a of central outer harbor
3. Excess habitat units 325.0 293.3 83.0
0 (acres of central outer
* 390 acres of Ratiquitos enhancement x 1.138 (trade-off ratio) = 443.8
habitat units = 443.8 acres of central outer harbor San Pedro Bay.
** 388 x 1.062 = 412.1 acres
*** 388 x 0.520 = 201 .8 acres
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**** One (1) habitat unit = one (1) acre of mitigation for one (1) acre of
outer harbor San Pedro Bay landfill in waters 20 feet or deeper.
For example, if City has received all necessary State and federal permits
for an outer harbor landfil7 of 100 acres (impacting such area calculated as set forth in Table 3) in waters of a depth equal to or greater than 20
feet, then City may accornplish the biological mitigation for this fill by using 100 of the 325 excess habitat units described above. There would, thereafter, be 225 excess habitat units available to the City if future
f i 1 1 s are permi tted . 0
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August 10, 1987
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EXHIBIT D
DEFINING METHODOLOGY TO DETERMINE FUNDS NECESSARY TO ESTABLISH ANNUITY AN a INVESTMENT ACCOUNTS TO FUND THE MAINTENANCE ACCOUNT FOR THE BATIQUITOS LAGOO ENHANCEMENT PROJECT.
1. Purpose
The methodology described herein shall be used by BOARD and CDFG t a comply with the funding requirements of Section 10 (Project Maintenanc Responsibilities) of the Agreement for the marine habitat enhancement c Batiquitos Lagoon ("Agreement") to which this Exhibit is attached.
Determination of Annuity Amount to Fund Maintenance for First 30 Years 2. * a. Determination of the Annuity Amount
In accordance with Section 10(b) of the Agreement, the amount ( funds necessary to establish the Annuity will be determined based c the future equivalent of $200,000 in 1987 dollars at the effectil date of the Agreement. This future equivalent shall be determined i * accordance with the inflation factors given in Table D-1. Sa- inflation factors are based upon Data Resources Institute's (DRI
"U.S. Long-Term Review", Spring 1987 forecasts for calendar years 19i through 1991. Based on these factors, the annuity amount for each c the years 1988 through 1991 is given in Table D-1.
0 TABLE D-1
Year Inflation Factor Annuity Amoun.
1987 - $200,000
1988 1.0405 $2 08,100 1989 1.0445 $217,360 $2 26 , 707 1990 1.0430 1991 1.0415 $236,115
As such, if Construction Certification (as defined in Section 6(k) the Agreement, occurs in calendar year 1990, the dollar basis f e establishing the Annuity in accordance with Subsection c. below wou be $226,707.
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If Construction Certification occurs after the year 1991, determination of the annuity amount to be used in accordance with the methods described hereunder to determine the Annuity and Investwnl Account amounts shall be based on the actual inflation rate occurriq between the effective date of the Agreement and the date 01 Construction Certification as reported by DRI at the time 01 Construction Certification. For example, if Constructior Certification occurs in 1992 and actual inflation between 1987 ant 1992 is nineteen percent (19%), the annuity amount would be $200,000 x 1.19 = $238,000.
b. Annual Inflation Rate for Adjusting Annual Maintenance Cost, Years 0-29
It is expressly agreed that the annual inflation rate to be appliec to the annual maintenance cost for the period of time of thirtj (30) years following Construction Certification, is to be five anc two/tenths percent (5.2%). Said inflation rate is based upon the Data Resources Institutes "U.S. Long-Term Review", Spring 1987 forecasts.
Determination of Initial Deposit to Establish Annuity to Fund Project Maintenance Costs for 0-29 Years
In accordance with Section 10(b) of the Agreement, within sixtg (60) days after Construction Certification, CDFG and BOARD shall meet to determine the amount of funds necessary to transfer from the Escroh Account as described in Section 9(a) of the Agreement, or fran the Harbor Revenue Fund, as may be required in accordance wit! Sections 5(b) and 9(f) of the Agreement, to establish the Annuity. The initial deposit shall be determined from the annuity amount frm subsection a., above, the agreed upon annual inflation rate of 5.2%, and an investment rate of 8.2% for a 30 year annuity. Using 2 computer model, a series of annually compounded interest calculations will be made which result in an ending balance of approximately zerc dollars following 30 years of transferring funds from the Annuity tc the Maintenance Account.
Table D-2 is a sample computer model calculation, based on thc factors given above, assuming Construction Certification occurs ir calendar year 1991.
In this example, the initial deposit required would be $4,852,00( including the initial transfer of $236,115 from the Escrow Account required by Section 10(b) of the Agreement. Table 0-2 shows the annual interest earned and the annual amount to be deposited into the Maintenance Account. As a sample calculation for year 17 (rounded tc the nearest thousand dol lars):
O interest earned: $5,763,000 x .082 = $473,000
O Amunt transferred to Maintenance Account: $ 505,000 x 1.052 = $531,000
O Annuity ending
c.
balance: $5,763,000 + $473,000 - $531,000 = $5,705,000
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TABLE D-2
BATIQUITOS' LAGOON ENHANCEMENT PROJECT MA1 NTENANCE FUNDING a
IN IT I AL INVESTMENT INFLATION ANNU I TY
DEPOSIT RAT E RAT E AMOUNT $4,852,485 8.2% 5.2% $236,115 .......................................................................... ..........................................................................
INTEREST TO MAINTENANCE ENDING 0
YEAR EARNED ACCOUNT BAL AN C E -
1 236,115 4,616,370
2 378 , 54 2 248 , 393 4,746,519
3 389,215 261,309 4,874,425
4 399,703 274,898 4,999,230
5 409,937 289 , 192 5 , 119,975
6 419,838 304,230 5 , 235 , 582
7 429,318 320,050 5,344,850
8 438 , 278 336,693 5,446,435
9 446,608 354,201 5,538,842
10 454 , 185 372,619 5 , 620,408
11 460,873 391,995 5,689,286
12 466,521 412,379 5,743,428
13 470,961 433,823 5,780,566
14 474,006 456,382 5,798 , 191
15 475,452 480,114 5,793,529
16 475 , 069 505 , 079 5 , 763,519
17 472,609 531,344 5,704,784
18 467,792 558,973 5,613 , 603
19 460,315 588,040 5,485,878
20 449,842 6 18 , 6 18 5,317 , 102
21 436,002 650,786 5,102,318
22 418,390 684 , 627 4,836,081
23 396,559 720,228 4,512,412
24 370,018 757 , 680 4 , 124,750
25 338,229 797,079 3 , 66 5 , 900
26 300 , 604 838,527 3 , 127,977
27 256,494 882,130 2,502,341
28 205,192 928 , 001 1,779,532
29 145,922 976,257 949,196
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30 77,834 1,027,023 7
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3. Determination of Initial Deposit to Establish Investment Account.
In with Section 1O(c) of the Agreement, within sixty (60) day: after Construction Certification, BOARD shall establish the Investmeni Account by transfer from the Escrow Account, or from the Harbor Revenut Fund, in accordance with Section 5(b) of the Agreement. The amunt of tht deposit into the Investment Account shall be determined based upon: thc annuity amount from Subsection a., above, the agreed upon annual inflatior rate of 5.2% and the agreed upon investment rate of 8.2% by application 0' the following formula:
D=[( x) (1+i)~~1/(1+1) 30 for
accordance
I -i X = annuity amount I = interest rate = 0.082 i = inflation rate = 0.052 D = initial deposit
As an example, assuming Construction Certification in 1991, the initial deposit would be:
D = r$236,115 (i.052)~~i/(i.o8z)~~ = $3,385,764 .082 - -052 call $3,386,000
4. Determination of Funding Requirements for Long-Term Maintenance and Dispersal of any Excess Funds
In accordance with Section lO(c) of the Agrement, at the end of thr thirty (30) year period following Construction Certification, BOARD, Sti
and other parties shall meet (within 60 days) to determine the adequacy 0' the Maintenance Account balance to provide for maintenance beyond tht first 30 years. This section describes the methodology to be used ii
making this determination.
Each of the 30 actcral annual maintenance expenditures, based on record: maintained by CDFG, in accordance with Section 10(f) of the Agreement shall be adjusted to account for actual annual inflation between the yea1 in which the expenditure was made and the end of the 30 year perioc following Construction Certification. For example, an expenditure o $750,000 in the 25th year would be adjusted as follows if actual inflatioi in years 26, 27, 28, 29, and 30 were observed to be 5.4%, 5.3%, 5.6% 6%,and 4.7%, respectively: $750,000 x 1.054 x 1.053 x 1.056 x 1.06 : 1.047 = $975,543.65.
Following this procedure for each of the 30 annual maintenancc expenditures will result in a list adjusted to reflect the value 0' dollars at the beginning of the 31st year following Constructior Certification.
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This list of 30 inflation-adjusted annual maintenance expenditures shal then be utilized to determine a mean annual maintenance expenditure i a year 31 dollars by dividing the sum of the 30 annual adjusted inaintenancl figures by 30. Additionally, the list of annual maintenance expenditure shall be used to identify the greatest maintenance expenditure which wa required in any of the 30 preceding years.
A 95% confidence interval about the inflation-adjusted man annua
x+ 1.96 for X = Adjusted man annual maintenance expenditure.
0 maintenance cost shall be calculated using the following formula:
N = 30 (the number of years being sampled). s = Standard deviation of the 30 inflation-corrected annua
-*
0 maintenance expendi tures.
For example, if X = $500,000; and s = $51,000 then the 95% confidenc interval about the mean annual maintenance cost would be
$500,000 + 1.96 $51,000
or $500,000 2 $18,250.12; or $481,749-88 4 X < $518,250.12.
Next, the 95% confidence intervals shall be arrayed about the man annua inflation, and the mean observed annual difference between interest ar * inflation through analysis of each of these parameters as they relate t
each of the 30 years following Construction Certification.
For Example :
1) The 95% confidence interval about the mean inflation calculated ovf
i + s 1.96 for i = The mean of the observed interest rates for each I
N = 30 s = Standard deviation.
If i = 5.2% standard deviation = 1.0% and N = 30, then the 95% confidenc
interval would be 5.2% 2 0.35%; or
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e the 30-year period will be computed as follows:
the 30 years folloving certification. -w
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4.85% 4 i < - 5.55% -
a 2) The 95% confidence interval about the mean difference betw
interest and inflation (Y) will be computed as follows:
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Y + s 1.96 for Y = The mean of the observed difference between interest and inflation for each of the 30 years N = 30 s = The standard deviation of each of the 30 observed annual differences between interest and i nf 1 at ion.
If Y = 3.0; s = 0.5; and N = 30, then the interval would be
In order to attempt to assure the permanent adequacy of the long ten (post 30 year) Maintenance Account, the higher figure in the 95: confidence interval about mean inflation shall be identified (5.55% in thc above example); the lower figure in the 95% confidence interval about thc mean difference between interest and inflation shall be identified (2.82: in the above example); and the higher figure in the 95% confidencc interval about mean inflation-corrected annual maintenance expendi turc shall be identified ($518,250.12 in the above example). These identifiec numbers shall then be entered into the fol lowing equation:
€3 = [ (l+if) (Xf) 1 for B = requisite post 30 year balance
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3.0 + 0.18; or 2.82 -- C Y 4 3.18 -
i? = Upper figure of a 95% confidencc interval a bout mean observed annua' inflation in each of the 30 year: following certification.
X f = The upper figure in the 95: confidence interval for the mea' adjusted annual maintenance cost a discussed above.
Y .b = Lower figure of a 95% confidenc interval about the observed differencl between interest and inflation for eac of the 30 years following Constructio Certification.
Using the previously derived figures for the sake of illustration only we have :
y+
B = r 1.0555) ($518,250.12)1 = $19,397,624 .0282
Lastly, as has been previously indicated, use of the inflation-correcte list of annual maintenance costs will enable the identification of thl largest annual maintenance expenditure (LAME) (corrected, of course, t the relative value of dollars in the 31st year following certification o the lagoon enhancement project). For the sake of illustration, let u assume This maximum expenditure figure i to be combined with the value of B as determined above. Combining th computed value of B i.bove with the presumed maximum observed annua maintenance expenditure results in a total of $20,897,624.
this figure to be $1.5 million.
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If the total of funds available in the Maintenance Account plus the fund:
remaining in the Annuity Account plus the funds available in the long-ten Investment Account exceed the sum of B plus LAME, ther the portion of these combined funding sources which exceed the computed value of the sum of B and LAME shall be refunded to the BOARD. CDFG shall receive the portion of the combined accounts which is equal ti the sum of B plus LAME and shall establish two separate account! therewith. These accounts shall be known as the LAME account (equivalen in size to LAME as identified above) and the permanent maintenance accoun' (or B account) equivalent in size to B as B is to be computed. Use o these two accounts shall be limited to providing for maintenance of thc Batiquitos Lagoon Restoration Project area. CDFG shall rely upon use o the B account for lagoon maintenance except in cases of emergency in whic event CDFG may draw against the LAME account.
a Using the agreed to interest and inflation assumptions, (i.e., interes at 8.2% and inflation at 5.2%) and assuming, for example, an initia deposit of $3,385,764 into the investment account and an annual estimate maintenance cost of $236,115 (i.e., the deposit takes place 4 years fro the effective date of the Agreement). This account will grow t $36,014,261, and BOARD would, given this example, receive a refund o $36,014,261 - $20,897,624 = $15,116,636 plus any remaining funds availabl in the Annuity Account. If the differential between interest an inflation turns out to be measurably higher than the agreed to 3.0% and/or if the annual mean corrected maintenance figure is less tha $500,000; and/or if expenditures and interest rates exhibit a degree o consistency which results in tightening the 95% confidence intervals abou the parameters discussed above, then the refund could be greater than th $15 , 116,636 i ndi ca ted above.
If, alternatively, the total funds available in the Maintenance Accour plus the funds available in the Annuity and Investment Accounts are le: than or equal to the sum of B and LAME, then CDFG shall become the sol e owner of funds then available and BOARD shall receive no refund. Givc this instance, CDFG shall use the combined total of the Maintenanc Account, Annuity Account and Investment Account exclusively for tk maintenance of the Project area and shall attempt to secure additioni funds may be required for such maintenance from a variety of Stat( Federal , local , or private funding sources.
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