HomeMy WebLinkAbout1987-11-10; City Council; 8961-2; Approval of Batiquitos Lagoon EnhancementCI7 OF CARLSBAD - AGEND BILL
PEPT. MP
TITLE" APPROVAL OF BATIQUITOS LAGOON
11/10/87 ' ENHANCEMENT PROJECT
MEMORANDUM OF AGREEMENT
RECOMMENDED ACTION:
Adopt Resolution No. QeL°lo authorizing the Mayor to execute the
six (6) party Memorandum of Agreement for the enhancement of
Batiquitos Lagoon.
ITEM EXPLANATION;
Negotiations have been completed among the six (6) party Federal,
State, and local agencies resulting in the attached Memorandum of
Agreement for the enhancement of Batiquitos Lagoon. The
Memorandum of Agreement sets forth the roles and responsibilities
of the parties to the agreement with respect to compensating
marine habitat losses resulting from future landfill projects
within Los Angeles Harbor by enhancement of marine habitat within
the City of Carlsbad's Batiquitos Lagoon.
The Memorandum of Agreement describes the general goals and
objectives of the enhancement project which include:
- Acquisition of Lagoon property interests;
Physical reconfiguration of the Lagoon through dredging and
excavation as required to restore tidal inflows and aid in
the maintenance of an open Lagoon mouth;
Creation of new intertidal and subtidal habitats;
Construction of sediment control facilities;
- Management of a fresh water marsh to preserve habitat;
Construction of California least tern nesting sites;
- Disposal of dredged and excavated material by technically
> feasible, environmentally acceptable, and cost effective
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methods;
- Regular monitoring of the Lagoon to determine the effects of
construction activities; and
Provide necessary and economical long-term Lagoon
maintenance.
In accordance with Section 2 of the agreement, the City of
Carlsbad is designated as the lead agency for securing all
project permits and approvals and ensuring compliance with the
California Environmental Quality Act (CEQA). The U. S. Army
Page Two of Agenda Bill No.
Corps of Engineers will be responsible for all environmental work
under the National Environmental Policy Act (NEPA). Further, the
City of Carlsbad is designated as the lead agency for project
construction in consultation with the California Department of
Fish and Game, the U. S. Fish and Wildlife Service, the National
Marine Fisheries Service, and the U. S. Army Corps of Engineers.
FISCAL IMPACT;
Section 5 of the agreement provides for the City of Los Angeles,
Board of Harbor Commissioners (Port of Los Angeles), and/or the
Pacific and Texas Pipeline and Transportation Company (PACTEX) to
provide all necessary project funding. In accordance with
California Coastal Commission Permit No. 5-85-623-A, PACTEX shall
initially deposit $15 million into an escrow account to be
created by this agreement prior to the beginning of the PACTEX
landfill project within Los Angeles Harbor. The Port of Los
Angeles will administer the escrow account. Further, PACTEX is
obligated to deposit up to an additional $5 million if required
for the project. The Port of Los Angeles is obligated to provide
additional project funds in excess of $20 million if required.
In the event the PACTEX project to be constructed within Los
Angeles Harbor is not undertaken, the Memorandum of Agreement
provides the opportunity, but not the obligation, for the Port of
Los Angeles to fund the Lagoon project in full.
EXHIBIT;
1. Resolution No. ^3.^ O authorizing the Mayor to execute the
six (6) party Memorandum of Agreement for the enhancement of
Batiquitos Lagoon.
2. Memorandum of Agreement for the enhancement of Batiquitos
Lagoon with agreement exhibits A through D.
1 RESOLUTION NO. 9290
2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA, AUTHORIZING THE MAYOR TO
3 EXECUTE THE SIX (6) PARTY MEMORANDUM OF AGREE-
MENT FOR THE ENHANCEMENT OF BATIQUITOS LAGOON
4
5 WHEREAS, negotiations have been completed among the six (6)
6 party Federal, State and local agencies resulting in a
7 Memorandum of Agreement for the enhancement of Batiquitos
8 Lagoon; and
9 WHEREAS, the City Council of the City of Carlsbad
10 determines it to be in the public interest to approve said
11 agreement;
12 NOW, THEREFORE, BE IT RESOLVED by the City Council of the
13 City of Carlsbad, California, as follows:
14 i. That the above recitations are true and correct.
15 2. That the City Council of the City of Carlsbad hereby
16 authorizes and directs the Mayor to execute said agreement.
17 PASSED, APPROVED AND ADOPTED at a regular meeting of the
18 Carlsbad City Council held on the 10th day of November ,
1® 1987, by the following vote, to wit:
20 AYES: Council Members Lewis, Kulchin, Pettine, Mamaux and Larson
21 NOES: None
22 ABSENT: None
23
24 £LAUDE A. LEWIS/ Mayor
25 ATTEST:
26
ALETHA L. RAUTENKRANZ, City) Clerk
28 (SEAL)
3
AGREEMENT AMONGTHE 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 AGREEMENT is entered into by the UNITED STATES OF AMERICA,
acting by and through the FISH AND WILDLIFE SERVICE, UNITED STATES
DEPARTMENT OF THE 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") and
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 BOARD is authorized to foster the orderly and
necessary development of the Port of Los Angeles, consistent with the
public trust for navigation, commerce, and fisheries including the
creation of new land in the Harbor District of the City of Los
Angeles ("Harbor District") by landfill; and
II. WHEREAS, the FWS and the CDFG have as their primary
mandates, in this matter, the conservation, protection, and
enhancement of marine fish and migratory birds and their habitats,
including the planning of biological loss avoidance, minimization,
and compensation; and the NMFS has as its primary mandate, the
conservation, protection, and enhancement of marine fisheries
resources, including the planning of biological loss avoidance,
minimization, and compensation; and
III. WHEREAS, port development landfills are subject to State
regulation pursuant to the California Coastal Act and Federal
regulation pursuant to the Rivers and Harbors Act and the Clean Water
Act; and
IV. WHEREAS, the BOARD and its tenant, the Pacific & Texas
Pipeline & Transportation Company ("Pacific Texas") contemplate an
imminent harbor development within the Harbor District, consisting of
a landfill totalling approximately 106 acres at an average elevation
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of +20 feet MLLW (which is equivalent to 110 acres above mean high
water) as permitted by Corps of Engineers Permit No. 85-97 and
California 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 from harbor
landfills; and
VII. WHEREAS, the parties concur that creation of appropriate
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. WHEREAS, the parties concur that creation of new habitat
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, CARLSBAD, and BOARD have
identified Batiquitos Lagoon, within the City of Carlsbad, County of
San Diego, California (the "Lagoon"), as an appropriate location for
creation of habitat values to offset the habitat losses within the
Harbor District; and
XI. WHEREAS, pursuant to California Public Resources Code
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 bottom, controlling causes of sedimentation through
structural facilities, maintaining the Lagoon as altered, and other
actions (the "Lagoon Enhancement Project" or "Project") as generally
and conceptually described in the draft Batiquitos Lagoon Enhancement
Plan (the "Enhancement Plan" or "Plan") and which are more
specifically described in the excerpted sections of the Plan which is
attached hereto as Exhibit "A" and incorporated herein by this
reference; and
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XII. WHEREAS, CARLSBAD Is the local government with jurisdiction
over the Lagoon and much of its watershed area, and desires to assist
in expediting the enhancement of the Lagoon; and
XIII. WHEREAS, the parties have determined that (1) CARLSBAD is
the most appropriate agency to design and construct the Lagoon
Enhancement 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) CDF6 is the most
appropriate agency to assume responsibility for 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 environmental documentation, design, permit applications,
property acquisition, construction, monitoring and maintenance
activities necessary to implement the Plan, including: (1) the
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 technically 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
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
environmental 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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economically feasible, and as will be described in Project's
environmental documentation and design work.
2. Lead Agency for CEQA Compliance and Permits. CARLSBAD shall
be the lead agency for compl i ance wi th the California Environmental
Quality Act ("CEQA") and shall be responsible for obtaining all
permits and approvals necessary for Project's construction. In
accordance with this Agreement and the provisions of Exhibit "B,"
attached hereto, BOARD will provide necessary resources to allow
CARLSBAD to meet said obligations. FWS, NMFS, CDFG, SLC, and BOARD
shall cooperate with CARLSBAD in supporting applications for such
permits and approvals. CEQA work shall be coordinated with the Army
Corps of Engineers (hereinafter "Corps"), the lead agency for the
environmental work for the Project under the National Environmental
Policy Act ("NEPA").
3. Property Acquisition. CARLSBAD shall be responsible for
obtaining fee title or permanent easements sufficient to allow
CARLSBAD 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 completion of the condemnation action. If CARLSBAD
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 perpetuity, 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. CDFG shall provide CARLSBAD with a license to enter the
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
BOARD may authorize construction to begin if an order of immediate
possession is obtained after filing of the appropriate condemnation
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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 commence 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
additional sediment sampling, appropriate archaeological survey,
environmental documentation, design and engineering services and
construction, shall be done by CARLSBAD in consultation with CDFG,
FWS, NMFS and Corps, shall be in substantial conformance with the
Enhancement Plan, and shall be supported as further provided in this
Agreement and in Exhibit "B", attached hereto, by the BOARD.
5. Project Funding.
(a) BOARD 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, preliminary design plans, necessary
engineering studies and preliminary cost estimates, (collectively
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 environmental 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 (collectively 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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r
Account, subject to its right to elect not to proceed pursuant to
Section 6(c), 6(e) and 6(g), below. If BOARD elects not to proceed
pursuant to one of these sections, its funding obligations hereunder
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). In such event, the Escrow Account
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) Implementation of the Project shall be undertaken in an
expeditious manner so that Construction Certification pursuant to
subsection (k), below, occurs not later than four (4) years from 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. If
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
Preliminary 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 10(e),
below. Within forty-five (45) days of receipt of these estimates,
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. 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 physically
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
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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. If BOARD
does not elect to proceed, the Project shall be deemed cancelled and
the provisions of Section 15, below, shall apply.
(d) Upon completion of the Preliminary Design and prior to
initiating preparation of the Environmental 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 them or to submit
written comments to CARLSBAD. Failure by any of these agencies to
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
consultation with the BOARD shall modify the Preliminary Design to
the satisfaction of all 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, FWS and NMFS
pursuant to subsection (d) above, CARLSBAD 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. Grounds for not electing to
proceed are among those set forth in Section 6(c). If BOARD does not
elect to proceed, the Project shall be deemed cancelled and the
provisions of Section 15, below, shall apply.
(f) If BOARD has notified all other parties of its election
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 alternative described in the Final EIR/EIS. Upon
completion of the Final Design and prior to advertisement for bids
CARLSBAD shall furnish BOARD, FWS, NMFS, SLC and CDFG with a copy of
the bid package for the construction of the Project, including all
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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
Environmental Impact Statement. CDFG, FWS and NMFS shall have
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. COFG, 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. If unqualified approvals are not received from each of
these agencies, CARLSBAD, in consultation with BOARD shall modify the
Final Design to the satisfaction of all these agencies before
proceeding further with the Project.
(g) 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 remaining 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 BOARD so desires. If BOARD does not elect to proceed,
the Project shall be deemed cancelled and the provisions of Section
15, below, shall apply.
(h) During Project's construction, CARLSBAD shall provide
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
preliminary 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. Each above-named 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. Upon expiration of this forty-five (45)
day period, CARLSBAD shall decide whether to withdraw the Preliminary
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Notification or to provide all parties with final notification in
writing that construction of the Project is complete (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").
Said report shall be provided to all parties and Corps within
sixty (60) days after Final-Notification. Funding for conduct of the
Tidal Monitoring Study shall be from the Escrow Account described in
Section 9(a), below.
(j) Upon receipt of the Tidal Monitoring Study, any
recalculation of habitat units pursuant to Section 12(e), below,
shal 1 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
"Final Determination") as to whether the Project's construction has
been completed 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 withheld. Construction of the Project shall be deemed
complete upon said certification by each of the above-named parties.
(The certification of all these parties is hereinafter collectively
referred to as the "Construction Certification.")
7. Linkage with Harbor District Landfills and Release of
Claims.
(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 Escrow Account
pursuant to Section 9(a), below. It is understood that under the
terms of said permit, upon deposit of up to $20 million into the
Escrow Account, Pacific Texas shall have no further obligation 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
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, from 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.
(b) Except for the Pacific Texas Landfill, and in
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. Further, in accordance with said permit, if said
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 commence any inner harbor fills requiring off-site
mitigation of biological impacts until mitigation for such inner
harbor fills has been accomplished.
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 all needed
information by the Project Manager, to carry out effective
monitoring. In the event that construction is not proceeding in
substantial conformance with the Final Design, or cannot so proceed
due to onsite 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 lowing matter:
(a) Escrow Account. Prior to start of construction of the
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-(£04 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 Escrow 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
- 10 -
13
disbursement of funds in the Escrow Account: (i) for costs incurred
by CARLSBAD 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
10(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 from the Escrow Account. Project
Manager may require Pacific-Texas to deposit up to an additional $5
million into the Escrow Account in accordance with Section 5 herein.
(b) Funds Advanced by BOARD. CARLSBAD, after receiving
prior BOARD 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 agreement,
BOARD is advancing funds to reimburse these expenditures. BOARD may
withdraw funds from the Escrow Account after the Pacific Texas
deposit is made to reimburse itself for such advanced funds.
(c) Return of Funds to Pacific Texas. If the 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.
(d) Interest. The balance of funds in the Escrow Account
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. All records, invoices, vouchers and
ledgers, correspondence and all 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 following
Construction Certification and shall be available, to the extent
prov-ided under applicable law (such as the Public Records Act,
California Government Section 6250 et seq.), for audit by CDF6, 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.
(f) Harbor Revenue Fund. The parties to this Agreement
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.
- 11 -
(g) No Obligation of Other Funds. Nothing herein shall be
construed to obligate CARLSBAD, SLC, FWS, NMFS or CDF6, except as
specifically provided herein, to expend its own funds, or any other
public 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. CDFG may
contract out these responsibilities and, upon the approval of the
parties hereto, may assign these responsibilities. 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 which may be
transported to the Lagoon from upstream runoff within the Lagoon's
watershed area.
(a) Maintenance Account. Within sixty (60) days after
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. CDFG shall have the exclusive
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.
(b) Annuity. Within sixty (60) days after Construction
Certification, CDFG and BOARD shall determine the amount of funds
necessary to establish an annuity or equivalent investment (the
"Annuity") which will provide a guaranteed annuity paying the future
equivalent of Two Hundred Thousand Dollars ($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 10(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, Eight Hundred and Fifty-Two Thousand, Five
Hundred Dollars ($4,852,500) 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
- 12 -
shall control. BOARD shall be obligated to contribute to the Annuity
only after the amount deposited by Pacific Texas into the Escrow
Account, excluding interest, has reached $20 million.
(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 following 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
income to fund the costs of maintaining the Project as certified
pursuant to Section 6(k), above. If it is determined, based on the
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.
(d) No Further Obligations and Return of Funds. BOARD
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.
(e) Allowable Maintenance Costs. It is agreed that any
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 activities carried out beyond these standards
shall be the responsibility of the party carrying them out.
- 13 -
(f) Records. CDFG shall maintain records showing the use
of funds from the Maintenance Account. If CDFG designated
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. CDFG shall monthly maintain
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 wi11 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. Recommendations offered in any
subsequent Biological Opinion on consultation report prepared
pursuant to Section 7 of the Enda'ngered 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 acknowledge that the
habitat values gained from the Lagoon Enhancement Project will be
used to offset the habitat values lost from the Pacific Texas
Landfill and will be used to offset other landfill projects which may
be permitted in the future.
(c) Construction and maintenance of the Lagoon Enhancement
Project will completely mitigate the Pacific Texas Landfill and
create excess habitat units sufficient to compensate 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 BOARD and may be used to offset fish and wildlife
habitat losses which may result from other landfill projects in the
- 14 -
)7
Harbor District provided such projects receive all 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 facilities for general
cargo, bulk and neobulk cargo and necessary supporting infrastructure
(streets, rail access, utilities, pipelines, etc.). FWS, CDFG, NMFS
and BOARD 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 completely 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 BOARD. 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 fills in
accordance with the requirements of such laws. Any review or
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 completion of the environmental
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.
(d) No Excess Habitat Units may be used for any purpose
until the Construction Certification has been made.
(e) In the event of variations between the Final
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, CDFG and BOARD will recalculate the habitat
units—in_a. manner similar to the procedure followed in Exhibit C and
the number of Excess Habitat Units reported in subsection (c), above,
shall be modified accordingly.
(f) If at any time during the term 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 10(e),
above, FWS, NMFS, CDFG and BOARD will recalculate the total number of
habitat units created from the Lagoon Project in its then current
condition and the number of unused Excess Habitat Units available at
- 15 -
that time to the the BOARD pursuant to subsections (c) or (g) will be
reduced accordingly.
(g) 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 may be used only to
compensate for habitat losses incurred as a result of port district
projects in waters deeper than -20 feet HLLW. 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.
t
13. CEQA and NEPA Compliance is a Condition Precedent to
Project. This Agreement describes a proposed Lagoon Enhancement
Project and allocates responsibilities for its implementation.
Entering into this Agreement does not constitute an adoption of the
Project or a commitment to carry out the Project as those terms are
used in the California Environmental Quality Act, Public Resources
Code Section 21000 et seq. ("CEQA") and the National Environmental
Policy Act, 42 U.S.C. Section 4321 et seq. ("NEPA"). Prior CEQA and
NEPA compliance is a condition precedent to any party being committed
to carry out any obligations set forth in this Agreement for which
such compliance is required. If CEQA compliance discloses any
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
overriding considerations.
If, upon completion of all necessary CEQA and NEPA
compliances, any party whose actions require prior CEQA or NEPA
compliance 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:
(a) if Corps of Engineers and Coastal Commission permits
for the Pacific Texas Landfill do not become effective or are
revoked, or
- 16 -
(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.
If the Lagoon Enhancement Project is cancelled pursuant to
Sections 5, 6(b), 6 (c), 6(e), 6(g), 13 or 14(b):
(a) The Pacific Texas Deposit shall not be returned.
(b) CDFG, FWS, NMFS, SLC, CARLSBAD and BOARD shall
immediately begin necessary work to determine if alternative 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 BOARD 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 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 Agreement for implementation of the Lagoon
Enhancement Project. If the Lagoon Enhancement Project was cancelled
pursuant to 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 an
example, if total expenditures necessary to create and maintain an
alternate 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. If it is determined that a project under this
subsection cannot be completed, CDFG, FWS, NMFS, SLC, CARLSBAD and
BOARD shall comply with subsection (c), below.
(c) If this subsection becomes applicable, CDFG, FWS, NMFS,
SLC, CARLSBAD and BOARD shall immediately begin necessary work to
determine if another project at Batiquitos Lagoon which would
generate enough habitat 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)
- 17 -
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 +5.5 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 Agreement for implementation of the Lagoon Enhancement
Project. If the Lagoon Enhancement Project was cancelled pursuant to
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). If it is determined that a project
under this subsection cannot be completed, CDFG, FWS, NMFS, SLC,
CARLSBAD and BOARD shall comply 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 alternative 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
available in the Escrow Account. Any such alternative location
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 specifically, such
alternative location project shall maximize marine fisheries and
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
+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 +5.5 feet
MLLW. CDFG, FWS, NMFS, SLC, and BOARD shall proceed with
implementation of such alternative 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 1985-1986 Regular
Legislative Session (Ch. 1415, Stats. 1986; Public Resources Code
Section 6306.1) BOARD and SLC agree to support such legislation.
- 18 -
(e) If the Project is cancelled pursuant to Section 14(a),
unless any loss of habitat in the Harbor District has resulted from
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 Agreement 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 Landfill unless
it is rescinded by written consent of all parties or unless cancelled
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 specifically provided, the term
"days" 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 compared
including, without limitation 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.
- 19 -
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. Hall, Project Manager
P. 0. Box 151
San Pedro, CA 90733-0151
(213) 519-3660
The Fish and Wildlife Service
Mr. Jeff Opdycke, Project Leader
24000 Avila Road
Laguna Niguel, CA 92656
(714) 643-4270
The Department of Fish and Game
Mr. Donald Lollock, Chief, Environmental Services Branch
1416 9th Street
Sacramento, CA 95814
(916) 445-1383
The National Marine Fisheries Service
Mr. Robert Hoffman, Southern Area Environmental Coordinator
300 South Ferry Street
Terminal Island, CA 90731
(213) 514-6199
The City of Carlsbad
Mr. Raymond R. Patchett, City Manager
1200 Elm Avenue
Carlsbad, CA 92008-1989
(619) 438-5561
The State Lands Commission
Ms. Claire Dedrick, Executive Director
1807 13th Street
Sacramento, CA 95814
(916) 322-4105
- 20 -
APPROVED AS TO FORM
P. BENDER
Assistant City Attorney
THE CITY OF LOS ANGELES, acting
by and through its PaARD OF
HARBOR COMMISSIONER.
EZUNIAL BURTS
Executive Director
THE FISH AND WILDLIFE SERVICE,
U.S. Department of the Interior
JEFFREY D. OPDYCKE
Field Supervisor, Laguna Niguel,
Field Office, Region 1
THE DEPARTMENT OF FISH AND GAME
PETER BONTADELLI
Acting Director
THE NATIONAL MARINE FISHERIES
SERVICES, NOAA, U.S. Department
of Commerce . 5
E. C. FULLERTON
Regional Director
THE CITY OF CARLSBAD
CLAUDE A. LEWIS
Mayor
THE STATE LANDS COMMISSION
10/14/87
Pactex MOU-2
csc3-6766a
CLAIRE DEDRICK
Executive Officer
- 21 -
EXHIBIT A
SHORT DESCRIPTION OF PROJECT
For the proposed Batiquitos Lagoon
Enhancement Project in the City of
Carlsbad.
The following SHORT DESCRIPTION of the Batiquitos Lagoon Enhancement
Project was excerpted, unedited from the draft Batiquitos Lagoon
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
Pages 155-159 ("Alternative Plans") plus
Figures I (Preferred Alternative), N (Plan Alternative No.
2), and 0 (Plan Alternative No. 3).
THE EMHAMCD€MT PUM
Four different alternative enhancement plans are described 1n the following
section. Alternative one 1s the preferred alternative and ts recommended for
Implementation under thts plan. Alternatives two and three contain less
dredging and consequently, smaller tidal prisms. There 1s a higher level of
uncertainty about whether the mouth of the lagoon will remain open under
alternatives two and three. All three of these alternatives have been viewed
by the public and enhancement group; we have revised the original design of
alternatives two and three to reflect certain changes since their first design.
The final alternative 1s the No Project alternative and 1s really a prediction
of the fate of Bat1qu1tos Lagoon should no enhancement be done. Table 17
compares the specific features of each alternative. In addition to the
Improvements proposed for the lagoon, each alternative Includes the same
sediment management system, public access trail and beach nourishment program.
The various agencies and funding mechanisms for Implementation of the plan are
Included 1n Section V.
Preferred Alternative (Alternative 1)
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 lagoon Channel Closure Conditions
The single most Important hydrologlc design constraint for Bat1qu1tos Lagoon 1s
to ensure that there 1s a sufficiently large tidal prism to keep the entrance
channel open. The complexity of the hydrodynamlc processes Involved, and the
difficulty 1n their measurement, make 1t difficult to predict the "critical"
value of the tidal prism, above which we can be assured the entrance channel
will always stay open. The plan takes an empirical approach to this problem.
Based upon the studies by Johnson (1973) and updated by Philip Williams and
Associates, the mean tidal prism and closure conditions for 20 coastal lagoons
1n California were determined, and plotted against deep water wave power. The
plotted points are shown 1n Figure 7, along with the three alternatives for
Bat1qu1tos Lagoon. The plotted points show a clear separation between lagoons
that are "always open* and those that are "sometimes closed". This separation
1s Indicated by a dotted line 1n Figure 7. The position of the line, however,
1s only approximate; the minimum tidal prism needed to keep a coastal lagoon
always open can only be estimated within a factor of two.
The preferred alternative will have a potential mean tidal prism of 44 million
cubic feet, a potential diurnal tidal prism of 67 million cubic feet, and a
perigean spring tidal prism of 99 million cubic feet. If the position of the
boundary between open and closed lagoons (Figure 7) 1s offset by a factor of
two, the tidal prism for the preferred alternative would still be sufficient to
keep the lagoon open. According to the Jenkins and Skelley (1985) study which
used a different analysis, the closure frequency would be less than once 1n 30
years.
1A
Table 17
SlffKRY OF ALTERNATIVES - BATIQUITOS LAfiOON EHHAMCEMEMT PLAM
(Preferred
1 Alternative) 2 :
Intent1dal Area (acres)
(+2.5' to -2.5' NGVD*) 170 215 315
Subtldal area (acres)
(below -2.51 NGVO) 220 171 71
Area of salt/brackish marsh (acres)
(above +2.5' N6VD) 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 peMgean spring tidal
prism (million cubic feet) 99 89 68
Approximate volume
of dredge material
(million cubic yards) 3.0 2.1 1.3
Entrance channel area
(below 0' NGVO) (square feet) 1700 1500 1200
Total Capital Costs (Includes
dredging 9 $4.00/yd, drag bucket
system, beach groins, levee,
1n million dollars) 12.4 8.8 5.6
*NGVD - National Geodetic Vertical Datum - approximately equal to Mean Sea
Level
2A
MINIMUM cuoas KCTiOMAk «n» or IMVCT (rr*) muo* •*. I*)
(1) Preferred Alttrnativt
(2) Alternative 2
(3) Alternative 3
MOTC MCaCSVOM CUdvC ViTH t»LIMITS
TIDAL PRISM VS
CROSS-SECTIONAL AREA
ALL MLCTS ON PACIFIC COAST
FIG. 6 Prom Jarrett 1976
3A
To determine whether the actual tidal prism Mas not significantly less than the
potential tidal prism, a tidal hydrodynanric model was used to simulate friction
losses (for details see Appendix C). The model found that the difference
between the actual and potential diurnal tidal prism was small, approximately -
5%. Ebb flows through the entrance channel are slowed by energy losses and the
MLLW level 1n the main part of the lagoon 1s Increased by 0.4 ft. Most of this
tidal dampening 1s due- to the constrictions of the entrance channel through the
beach and the Highway 101 bridge. Once the channel 1s deepened, the 1-5 and
railroad bridge no longer have much effect on the tidal range.
During the peak ebb flow, the maximum difference 1n water level between the
ocean and the lagoon 1s about one foot for the mean diurnal tide for the most
constricted channel alignment which assumes no dredging of the western basin
except for the channel (see Alternatives 24 3). Jenkins & Skelly (1986) have
carried out a two-dimensional model simulation that Indicated for similar
conditions the maximum water level difference to be approximately 1.5 ft. for
the perlgean spring tide. However, 1t should be noted that this water level
difference does not translate directly Into a loss of tidal prism. Instead, 1t
causes a lag and steepening of the tidal wave form as 1t moves Into the lagoon.
The actual dampening of the tidal range 1s considerably less. Therefore,
dredging the western basin may not be particularly Important to minimize tidal
dampening. However, deepening the western basin does add 1 million cubic feet
or 1.6 percent to the tidal prism.
The reconfiguration of the lagoon 1s presented In Figure I. The eastern basin
would be excavated from the approximate +2.5 foot MSL contour down to the -6.0
foot contour. The western basins would be excavated down to the -8.0 foot
contour (see lagoon cross-sections Figures J and K). The hydrodynamlc program
analyzed tidal heights 1n the entire lagoon for an average tidal cycle. In
order to decrease the amount of friction between the lagoon bottom and tidal
flows, to create subtfdal habitat and to overdredge the lagoon slightly, the
bottom dredging elevations of -6.0 foot for the eastern basin and -8.0 foot for
the western basin were decided upon. The hydrodynamlc program showed that
deeper dredging 1n either basin provided no additional benefits to tidal flows.
Another feature of the dredging contours 1s a defined bottom channel to help
transport fine sediment through the lagoon and out to the ocean. This channel
extends from the mouth of San Marcos Creek through the subtldal area to the
lagoon entrance channel. This channel will also serve to facilitate flows of
freshwater through the marsh to the lagoon and Improve current flood problems
along lower San Marcos Creek.
For the most part, the dredging area 1s confined to the presently unvegetated
portions of the lagoon. The dredging was designed 1n this way to avoid loss of
existing marshland. The exception to this design criteria 1s the far western
basin between the railroad and Highway 101. As previously mentioned modelling
completed for this plan does not conclude the same dredging requirements as the
Jenkins and Skelly (1986) report. It was the decision of members of the
enhancement group to provide for dredging of the western basin and the design
of the dredging Incorporates these results. In several areas of the east and
west basins there are small areas of marsh which are below the +2.5 contours.
These would not be able to survive the Inundation once the lagooji 1s open to
tidal action and could not be preserved.
4A
Table 18
Suavary of Data for Natural Lagoons -Call
Potential TidalName Prism
Diurnal Mean
Smith River
Estuary
Lake Earl
Freshwater
Lagoon
Stone Lagoon
Big Lagoon
Eel River
Delta
Estero
Americano
Estero San
Antonio
Tomales Bay
Abbotts
Lagoon
Drakes Estero
Bollnas Lagoon
Pescadero Marsh
Mugu Lagoon 1976
Mugu Lagoon 1857
Carp1nter1a
Marsh
Aqua Hedlonda
Lagoon 1976
Bat1qu1tos
Lagoon 1985
San D1egu1to
Lagoon 1976
San D1egu1to
Lagoon 1889
Los Penasqultos
Lagoon 1976
Tijuana River
Estuary
Bolsa CMca
35
430
35
86
240
200
22
11
1580
17
490
200
68
27
170
4.8*
80
0.33
0.2
37
2
24
113*
24
320
25
64
180
140
15
65
1070
11
340
130*
46
19
120
1.5
55
0.23
0.14
24
0.75
17
80*
Annual
Deep Water
Wave Power
ft Ibs/ft/yr
x 10"
303
329
348
348
348
371
(200)
(200)
209
307
26
117
(200)
(100)
(100)
(50)
28
(30)
(30)
(30)
(30)
(100)
29
No.
2
3
4
5
6
7
8
9
10
14
15
16
17
18
19
20
21
22
23
*T1dal prism precisely characterized
'ipted from Johnson, 1973.
Closure
Conditions
Infrequent
Frequent
Always
Frequent
Frequent
Infrequent
Frequent
Frequent
Never
Frequent
Never
Never
Frequent
Frequent
Never
Infrequent
Never
Frequent
Frequent
Never
Frequent
Infrequent
Remarks
Good Date
Good O-
Entr
Lire
Entrance
Lined
5A
^^^_ o
o ».
« °
C <Ao c11
§ Jo -1
<D --
, §3
go z
£
UJ
x l</ l)/«qild) d3MOd 3AVM H31VM d33O
6A
The hydrodynamlc program predicted tidal heights for the lagoon over an average
tidal cycle. Table 19 contains the results of this analysis. Under this tidal
regime the proposed dredging contours were designed to create an 1ntert1dal
zone below existing vegetated wetlands. This 1ntert1dal band will encircle
each basin and vary from a maximum 10 percent slope to a nearly flat gradient
of less than 1 percent slope. At the -2.5 foot contour, the lagoon bottom will
drop off at a six percent slope to the subtldal bottom elevation of -6.0 or -
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 calculation
uses the Jarrett relationship (see Figure 6). The width of the channel under
the bridge (from headwell to headwell) would be about 160 feet with rip-rap
side slopes at 3:1. The channel would be about 15 feet deep MSL and 10 feet
wide across the bottom. Since the Highway 101 bridge has at least three sets
of piers on the southbound lane and seven sets on the northbound lane,
engineering specifications 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 low
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 1s still an
uncertain process. Despite ten years of enhancement efforts 1n California
wetlands, there are still many unknowns and always the possibility that what Is
planned 1n an enhancement project will not be realized 1n the final result.
The acreages and types of habitat which are expected to occur after the
construction of the Bat1qu1tos project are based upon the elevations to which
the lagoon will be dredged, predicted tide levels and the occurance of similar
habitat types 1n nearby wetlands.
With consideration of these conditions, the preferred alternative (Alternative
1) 1s proposed to conserve and create the following acreage of each habitat
type:
Subtldal habitat (-2.5 ft to -8.0 ft MSL) 220 acres
Intertldal habitat (-2.5 ft to +2.5 ft MSL) 170 acres
Salt/Brackish marsh 139 acres
Freshwater marsh 33 acres
Least tern nesting sites 34 acres
Total 596 acres
The distribution of these acreages 1s Illustrated 1n Figure I.
Subtldal Habitat
This area would be covered by tidewater during most stages of the tidal cycle.
Several times during the month when low tide levels are at their extremes,
portions of the lagoon bottom 1n the subtldal area will be exposed. However
7A
Table 19
Modeled ind Pteasured Tide Heights.
Batlqultos Lagoon,
Scripps
Wharf
+2.52
-2.88
Pref.
Alt. 1
+2.5
-2.8
West
. Basin
Alt. 2 Alt.3
+2.5 +2.5
-2.8 -2.9
Pref.
Alt. 1
2.5
-2.5
MGVD (ft.)
Middle
Basin
Alt. 2
+2.5
-2.8
Alt.3
+2.5
-2.9
EastBasin
Pref.
Alt. 1 Alt.2
+2.5 +2.5
-2.5 -2.5
AH.3
+2.5
MLLW -2.88 -2.8 -2.8 -2.9 -2.5 -2.8 -2.9 -2.5 -2.5 -2.5
8A
33
9A
€D
for the most part this 1s a shallow marine aquatic habitat and will be covered
by 5 to 6 feet of water.
Certain fish and Invertebrate species would be expected to colonize the lagoon
once 1t 1s dredged and opened to the ocean. We propose no stocking of the area
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 following the Initial opening of the lagoon. The types of
Invertebrates and their abundance will also depend upon substrate types in the
lagoon bottom, water quality and nutrient levels and soil chemistry. These
factors will change 1n the first few years following the project.
For example, after the lagoon 1s dredged the bottom sediments will be made up
primarily of sand with little silt or clay. As fine sediments continue to come
Into the lagoon from the watershed, some probably will settle on the sand and
form a mud layer. The thickness of this layer and the mixing of the sand and
mud by bottom currents will change the type of substrate 1n the lagoon and thus
the habitat for benthlc organisms.
A similar enhancement project 1n San D1egu1to Lagoon has been monitored for
several years following completion of dredging of a tidal basin (Christopher,
1984). The substrate 1s largely sand and varies from subtldal to 1ntert1dal
zones. These studies found a number of benthlc organisms, the most common
being: bubble shell (Haminoea veslcyla), wavy chlone (Chlone undatella), dish
clam (Mactra nasuta), California jacknlfe clam (Tagelus callfornlcus) violet
ray jacknlfe clam, (Tagelus sybtores) and marine polychaete worms (Capltella
capitata, Polydora paucibranchlata, Scolelepls accuta and Medlomastps
californlensls) and various species of ollgochaete worms. In addition, other
species which could colonize this area Include: snails (Ceratpstoma nuttaTH).
moon snail (PpHnlces 1ew1s1), rough plddock (Zlrfaea pllsbryj), ghostshrlmp
(CalUnassa glgas), blue-mud shrimp (Upogebia pugettensls), spenculld worm
(Slpunculys nudus), segmented worm (Chaetopterus variopedatus), rough skinned
lugworm (Arenlcola brasiliensls) and ribbon worms (Nereis sp"p.).
In general, Invertebrate species select their habitats according to the grain
sizes of the substrate (sand vs. mud), the amount of wave action or current and
the salinity and water quality. As explained, 1n the first few years after the
lagoon 1s dredged, sediment layers will move and resort according to tidal and
storm currents. Soil chemistry and water quality will change as well. The
system will not reach an equilibrium condition for several years at least and
the Invertebrate fauna would be expected to respond to these changes.
The subtldal area will also provide habitat for marine and estuarfne fish
species such as California halibut, white,spot-fin and yellow-fin croaker,
topsmelt, deep-body anchovy, barred and spotted sand bass, long jaw mudsucker,
arrow goby and several species of surfperch. Many of these species enter
shallow bays and estuaries to spawn. Juvenile fish bom both in the open ocean
and in the lagoon may spend several months feeding and maturing in the shallow
water prior to their migration Into the ocean. The abundance of zooplankton
and benthic animals will support both juvenile and adult fish. The San
Diegulto Lagoon, since its enhancement, supports many of these species.
10A
Juvenile fish and Invertebrates provide food for diving ducks, diving ocean
birds and gulls and terns Including the Least Tern. Presently the lagoon does
not provide any subtldal habitat and only very limited fish habitat due to the
seasonally poor water quality conditions.
Intertldal Habitat
The Intertldal zone 1s the area which average tidal flows cover and expose
twice dally. The majority of the Intertldal area lies along the south shore
and eastern end of the eastern basin. A 50 foot wide strip borders the north
shore and rings the western basin. A total of 170 acres of Intertldal habitat
are Included 1n the plan. As with the subtldal habitat, the Intertldal zone
will be 1n a state of flux for the first few years following the dredging.
In most lagoons and estuaries, the Intertldal zone 1s habitat to numerous
benthlc animals which burrow Into the mudflats or live on Its surface. The
Infusion of ocean water twice dally provides a source of food for the benthlc
animals who sieve bits of detritus and food from the water. Worms, clams,
arvhlpods and other creatures Inhabit this area. Monitoring studies from San
01egu1to Lagoon found such animals as; polychaete worms such as Capltella
capltata, Polydora sp.. Scolelepls acuta and various ol^gochaete worms as well
3MUSC spedes, vlolcas clam or mollusc species, violet ray jacknife clam (Tagelus subtores)
eggshell cockle (Laeylcardlum substraltum) dish clam (Mactra nasuta); Hacoma
yold1form1s; razor clam (Solen rosaceusfT and striped mussel Uschad 1 urn
demlssumfTn the Intertldal area"! Other animals which were found 1n this zone
are ecMnoderms such as Leptpsynapta alblans, gastropods (Acteodna harpa) and
various amphlpod species Including Caprella equHlbra (Christopher, 1984).
Some of the other species which could typically Inhabit Intertldal sand and mud
flats and could collnze the Intertldal zone of the lagoon Include: sand
dollars (Dendraster excentrtcus). sea pansles (Renllla kolUkerl). sea stars
(Aspropecten armatus). horn sTJell snail (Cerlthldea callfornica), moon snails
(Ponnlces recluzlanus). ghost shrimp (Calllanassa cal1forn1ens1s), burrowing
anemone (Cerianthus aestuarl, Harenactis attenuata), brittle stars (AmpModria
barfaarae) and segmented worms (Mesochaetopterus "taylorl) and joint worm
(Axlothella rubrodncta). Crab species (Portunls xanfusl, Heterocrypta
occidental 1s) may forage 1n this area as well.
These Invertebrate animals provide the productive food base assodtaed with
bird use of Intertldal areas. The three Resource Agencies (OFG, NMFS, FWS)
have determined through the Habitat Evaluation Process (HEP) that the 170 acres
of Intertldal habitat and 172 acres of marsh outlined 1n the plan are
sufficient to conserve the existing habitat values for migratory birds present
at Bat1qu1tos Lagoon.
The depth of water and productivity of the habitat will largely determine the
species and number of shoreblrds using different areas of the lagoon.
Approximately the same shoreblrds species would be expected to use the enhanced
lagoon as do presently (see Appendix G). Wading birds, diving ducks, terns,
gulls and others would be expected to use the Intertldal zone at various tidal
stages as well. However, the value of the Intertldal area to the dabbling
ducks which currently use the lagoon 1s less certain. Shallow freshwater or
11A
brackish water habitats are most valuable to these species. The shallow areas
of 1ntert1da1. habitat should provide feeding habitat as will the freshwater
marsh. The proposed acreages of these are considered adequate by the Resource
agencies to support dabbling duck populations currently using the lagoon.
Salt/Brackish Marsh
The salt/brackish marsh acreage 1s composed of existing marsh which occurs
above the dredge zone (+2.5 ft MSL). This marsh would experience regular tidal
Inundation as a result of the lagoon enhancement but would not be mechanicallymanipulated or changed.
The Introduction of regular tidal Inflows to the lagoon could cause the
composition of plant species 1n the marsh to change. The present distribution
of plant species 1s a response to a hydrologlc regime 1n which the lagoon
seasonally floods with freshwater and then dries out and has hypersallne
conditions. Tidal flows are rare. The present marsh vegetation extends from
approximately +2.0 ft. to over +7.0 ft. In several areas. This marsh 1s a
mixture of brackish and salt marsh species.
Studies In other salt marshes 1n San 01ego County have found a number of
physical factors to affect marsh plant distribution. These factors Include:
tidal Inundation, elevation, slope, soil salinity, wave force and nutrients.
The plan would Introduce regular tidal Inflows and create tidal zones In the
marsh. The enhanced lagoon would have a mean higher high tide level at +2.5
ft. (MSL) and a spring high tide level at about +4.5 ft. (MSL). Extreme storm
tide levels could reach +6.0 ft. (MSL). Figure 25 depicts the elevatlonal
occurrence of certain species of marsh plants 1n relation to tidal Influence.
The range for each species 1s a maximum zone and the area extent of each 1n the
enhanced lagoon may differ significantly. In the far eastern end of the lagoon
the Inflow of freshwater could affect the distribution of plant species and the
brackish, less salt-tolerant plant species (e.g. Sclrpus robustus, Sclrpus
olneyl, typha domlngensls) may occur there. Likewise areas of freshwater seeps
may retain their brackish water species. However for the most part the
relntroductlon of tidal flows should create conditions which favor the growth
of salt marsh plants (e.g. Sallcornla v1rg1n1ca, Frankenla grandlfolla. Jaumea
carnosa) and Increase the vigor of those salt marsh plants already in the
lagoon. Many salt marsh species are active colonizers of areas with suitable
conditions. Cordgrass (Spartlna follosa) occupies the lowest zone of
vegetation 1n a tidal marsh and does not presently occur 1n Bat1qu1tos Lagoon.
It could be planted 1n expermential areas once the project has been functioning
for several years and sediments and water levels have stabilized. Other marsh
plant species. Including the endangered salt-marsh birds beak (Cordylanthus
mar1t1mus) could be Introduced to the lagoon wetlands.
Overall 1t 1s difficult to predict how the species composition and extent of
the marsh will change once the lagoon 1s enhanced. For the most part the
existing areas of marsh are conserved and changes 1n the acreage of marsh will
be monitored.
Shoreblrds are expected to regularly use the marsh both to forage for
Invertebrates 1n tidal sloughs and to roost during high tides. .Wading birds
12A
FT MLLW
ELEVATION
5
I I
6
I
DM MSL I
4
i
5
1
10
I
11
CORDGRASS
PtCKLEWEED
ANNUAL PICKLEWEED |
SALTWORT |
JAUMEA CARNOSA |
SEA BLUE [_
PRANKENIA GHANDIFQLIA [
MQNANTHOCHLOE LfTTORALIS^
GLASSWORT|_
7
I
12
HATCHING DENOTES ELEVATIONS WITH
FREQUENCY OF OCCURRENCE GREATER
THAN 70%.
Distribution of th« wait common hilophytM by elevation, at Tijuana
Eatuary (Zadlar 1977). Data fro* Aaahaia Bay (Maaaay and Zcmbal 1979) ware uaed
to axtand the ran«*a of •pcciaa beyond the >to 12-d« MSL range observed at Tijuana
Eatuary.
from Zedler.1982
FIG. 25
13A
and some ducks may also roost and feed 1n the marsh. Bird species use will
depend largely upon the type of plants that predominate. For example, a
greater extent of plckleweed marsh could support more breeding pairs of
Bel ding's Savannah Sparrows. More brackish marsh could support long-billed
marsh wrens and other small birds.
Freshwater Marsh
The proposed freshwater marsh would be a managed freshwater wetland enclosed by
an earthen levee. The primary reason for creation of a freshwater marsh 1s to
assure the continuance of the existing habitat values at Bat1qu1tos Lagoon.
While the 1ntert1da1 mudflats and subtldal areas proposed 1n the plan would
create prime habitat for migratory shoreblrds, wading birds and some waterfowl,
one component of the present fauna - the dabbling ducks require a freshwater
component. The creation of a freshwater area would condense the present winter
area of the lagoon for these species Into a 33 acre freshwater area and the 170
acre 1ntert1dal zone.
The levee 1s designed with an approximate 80 foot toe and an 8 to 1 slope on
the outer side and a 3 to 1 slope on the Inner side (see Figure L). The gentle
slope on the outer side would allow for tidal water to Inundate the lower
portion of the levee and create marsh and mudflat. The 8:1 slope 1s flat
enough to avoid wave erosion and the need for rip rap. The bottom toe of the
levee would be constructed at the approximate elevation +2.5 ft. (MSL) and the
top of the levee would reach +8.0 ft. (MSL). The top elevation would preclude
yearly high tides from overtopping the levee. The Interior of the marsh would
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. Water
depths would be controlled at six Inches to one foot. The dredging would allow
for the portion of the marsh closest to the upland to be higher than the area
near the levee so that the marsh can be drained completely.
The water source for the marsh will be San Marcos Creek. A weir would be
placed In the creek at the El Camlno Real bridge at the +5.0 ft MSL level.
This weir would detain water and the water would flow by gravity through pipes
Into the marsh. Given a maximum evaporation rate of 25 acre feet per month In
the summer, 1t 1s estimated that the marsh will require 1/2 cubic feet per
second (cfs) of Inflow during the summer. Summer waterflows In the channel
could fill this need. In the winter the need for water 1n the marsh may be
minor since a small tributary enters the marsh area. The weir 1n San Marcos
Creek would be destgned-siieh that no-flood problems would occur.
Additionally,, dual slide/flap gates would be placed at several locations 1n the
levee to allow for release of freshwater when levels are 1n excess of the six
Inch to one foot marsh depth and to allow the flooding of the marsh with salt
water. All culverts, frames and gates would be coated with replacable zinc
anodes and be made of eight gauge bituminous-coated asbestos-bonded galvanized
steel for long wear and low maintenance. Salt water flooding 1n the summer
could create a year round habitat should a drought occur and could be used to
control tules and other unwanted vegetation. However use of salt water should
remain a management option for the marsh, not necessarily a mandate since it
could adversely affect certain brackish to freshwater marsh plaats needed for
14A
waterfowl. When viewed from the adjoining hills the marsh will look like a
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 freshwater
marsh will largely determine what plant species Inhabit the area. At present,
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 soils
may remain brackish for the first years following construction, some species
may be limited. However, 1f the marsh 1s left strictly as a freshwater area,
the soils will leach and salts should be reduced. The management of the marsh
water levels and annual drying w1l largely determine the plants which colonize
and thrive there.
Least Tern Nest Sites
The U.S. F1sh and Wildlife Service In conjunction with the Department of F1sh
and Game determined a minimum of four least tern nesting sites be created In
the lagoon totalling approximately 32 acres. The plan provides for four sites
-one 16 acre site near the Park and R1de lot, one 12 acre site on the north
shore, one 4 acre site within the levee of the freshwater marsh and one 2 acre
site near the lagoon mouth. All these sites occupy locations of previously
used nest sites. When tidal Influence 1s returned to the lagoon, the previous
nest sites on the salt pan will be flooded. Therefore to provide sufficient
area for the terns to nest, new nesting sites have to be created. These sites
would be created out of sand dredge spoils from the lagoon and raised up to
+8.0 ft. MSL. A layer of clean white Imported sand with broken shells would
cap the dredge spoils.
Limited maintenance of the nesting sites will be required; removal of all
vegetation must be performed yearly. In order to gain access to the nesting
sites they are located close to the edges of the lagoon. In order to protect
the sites against predators six foot cyclone fencing will border the lagoon
edge 1n the vicinity of the least tern sites and be located a minimum of 100
feet from the site. Both ends of the freshwater marsh levee would be fenced.
The fencing will restrict domestic animals and other terrestrial predators from
entering the nest sites. The fence 1s located at a distance from the site so
that avlan 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 Tems 1n the San Francisco Bay area nest on the levees of salt ponds.
All four sites are designed to provide relatively Isolated, dry sandy locations
with clear views for the tems. A number of different sites are provided to
allow for various locations over the entire lagoon for the tems to choose
from. A total of 34 acres of nesting sites are provided.
Construction Methods and Schedules
The preferred alternative would require dredging and disposal of approximately
ISA
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 up a
number of tests must be completed. The only studies on the lagoon sediments
are a limited number of corlngs of the lagoon bottom 1n the eastern basin and a
larger number 1n the western basin (Woodward-Clyde Consultants, 1985;
Shepardson Engineering Associates Inc., 1985). These corlngs reveal
Information regarding the grain size of the material and thus the thickness of
clay and silt layers and sand layers over the lagoon bottom. These coring
Studies did not Include any chemical analysis of the materials however, and
these tests must be done before final plans for construction can be completed.
The coring studies give gross estimates of the quantities of two classes of
sediment on the lagoon bottom. The upper layers of the lagoon bottom are
primarily fine silts, clays and fine sands with grain sizes smaller than .125
mm. The silt and clay layer 1n the east basin 1s much thicker than the west
basin and could compose 60 to 70% of the dredge volume from the east basin.
The total volume of fine sediment to be removed from the lagoon 1s between 1.2
and 1.0 million cubic yards.
The sand fraction 1n the lagoon lies below the clay and silt layers and
represents a larger proportion of the dredge volume 1n the western lagoon than
the eastern basin. The median grain diameter of the sandy sediments 1n the
western lagoon 1s .18 mm while the median grain diameter for the same layers In
the east basin 1s .15 mm. There are about 1.8 to 2.0 million cubic yards of
sand to be removed. These sandy sediments are coarse enough to be used for
beach nourishment should bloassay and toxin testing prove negative (Jenkins and
Skelley, 1986).
These two sediment layers must both be tested for the concentration of toxic
chemicals, nutrient levels and other substances. The results of these tests
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 studies
will determine exact quantities and conditions of spoils. Therefore we will
outline a number of possible options for dredge disposal and construction
methods.
The most Inexpensive method of dredging the lagoon 1s to use dry land
techniques. Construction would begin In the east basin and progress to the
west. In the early spring (February-March) the lagoon mouth would be opened
and the lagoon drained. Inflowing streams would be diverted by pipe to the
ocean, stormdralns or other appropriate outlet.—Sroundwater would be pumped
out of the basin and the lagoon bottom dried out. Rubber tired scrapers or
comparable equipment would remove the silt and clay layers and they would be
disposed of 1n one or several ways. The silt-clay spoils must be dried prior
to disposal and 1f possible the adjacent north shore uplands owned by Samtils
and HPI should be used.
Once dried and depending upon the test results of the spoils they could be:
1) trucked to a sanitary landfill for disposal;
2) mixed with fine sands and sold or given away as structural fill;
3) used as landscaping fill on adjacent properties; or
16A
4) disposed of In the ocean at a site approved by the Environmental
Protection Agency.
The preferable option would be to place the spoils on adjacent properties for
landscaping fill should they pass all needed tests for this use. Sammls
Properties has offered to accept approximately one half million cubic yards to
fill a canyon on their property. A site 1s still needed for the remaining
500,000 to 800,000 cubic yards and the golf course proposed by HPI has been
suggested by several plan participants. Placement of the spoils on adjacent
properties would avoid the use of public roads. If the spoils are transported •
to other sites for disposal, additional equipment will be needed as the rubber
tire scrapers can not travel public roads. A fleet of dump trucks would be
used and would be loaded at the end of Lagoon Lane or other appropriate access
points.
Both the landfill and ocean disposal options are prohibitively expensive and
nearby landfills may not have the capacity for such a large disposal project.
Remixing the spoils for use as structural fill will require some additional
space but could possibly be feasible.
The levee for the freshwater marsh would be constructed from on site dredge
spoils and 1s the only feature of the lagoon project which could utilize the
clay-silt spoils. The Interior of the marsh also needs to be dredged to create
a bottom elevation (+2.5 ft. HSL) such that water Impounded 1n San Marcos Creek
could flow by gravity Into the marsh. A suggestion for using the marsh as a
recipient site for silt-clay spoils to raise the base level would require
pumping water Into the marsh, and thus Increase yearly operating costs and 1s
not recommended.
The method for disposal fo the silt-clay layers will be determined after
elutriate, bloassay and soil engineering tests are completed through the
environmental review, preliminary engineering and permit processes.
The sand layers will also require certain toxldty tests but they are of
suitable size for disposal on local beaches. Elutriate tests and bulk sediment
analysis test will be required. The lagoon dredging will produce approximately
1.8 to 2.0 million cubic yards of sandy material. Again dry land methods would
be employed 1f possible as they are less costly than dredging. The majority of
sandy spoils He 1n the western basin. These would be scraped up and
transported to the lagoon mouth for placement on the beach. Depending on the
type of construction used (dry land vs. dredging) the method for placement of
the spoils on the beach may differ. If dry land methods are used and scraping
equipment can fit through the three bridges, the scrapers could deposit sand
directly on the beach. A dirt haul road may be needed along the beach. If the
scrapers can't transport sand directly they would load 1t Into dump trucks at
the end of Lagoon Lane for the east basin and Hwy 101 for the west basin or
other appropriate access points. Dump trucks would use public roads to
transport the sand to the beach for disposal. Some sandy spoils would be used
to construct the least tem sites 1n the lagoon.
Disposal of sandy dredge spoils on Carlsbad beaches 1s not only convenient to
the lagoon project but allows for nourishment of a badly eroded-coastline.
17A
Sand movement 1n this area has been Interrupted by the construction of Oceanslde
harbor which traps southward moving sand. In addition, the sand supply has
been depleted by the damming of most rivers and streams and year round closure
of many lagoons such that sandy sediments deposit 1n the closed lagoon or
behind the dam rather than being carried out to sea. The littoral cell
supplying sand to the Carlsbad area begins about San Clemente and ends about La
Jolla. Generally sand volumes are deposited onto the beach by ocean waves 1n
spring and summer and eroded off the beach during winter. Depending upon the
amount of sand 1n the cell and the storm sizes, the width of sandy beaches 1n
this region varies.
The profile of the Carlsbad beaches has been measured 1n 1983 and 1984 (FUck
et al, Seymour et al). The winter of 1982-83 saw extreme wave heights
associated with El N1no. During the winter the large storm waves removed 200
cubic meters of sand per meter of beach. This erosion quantity 1s associated
with extreme storm waves. The following year winter storms removed 20-35 cubic
meters of sand per meter of beach. These erosion losses represent more average
winter storms.
As can be witnessed during a trip to the South Carlsbad Beach, sand 1s 1n short
supply and the beach 1s often made up only of cobbles. The dredging of
Bat1qu1tos Lagoon has as a by product the placement of as much as two million
cubic yards of sandy spo.lls Into this littoral cell. While deposition of this
amount just below Oceanslde harbor progesslng southward would be favorable ,
the cost to truck this much material exceeds the costs of dredging 1t from the
lagoon (V. Hall, pers. comm.) Therefore, the placement of the material on the
beaches likely will begin at the mouth of Bat1qu1tos Lagoon and progress
northward. One likely beach nourishment method would be the creation of large
sand piles or dunes at the landward edge of the beach. These dunes could be
progressively pushed onto the beach to nourish the 1ntert1dal area. Numerous
other methods are possible as are various management options to Increase the
longevity of the sand on the Carlsbad beaches.
The precise method for placement of the sand spoils on the beach and the miles
of beaches covered will be determined through the environmental review,
preliminary engineering and permit processes. Since State Department of Parks
and Recreation owns and operates most of these beaches, their concerns and
suggestions will help to determine what methods are used. However, all cost
estimates for the lagoon project assume that the sand spoils will be placed on
the beach 1n the most cost-effective manner.
Several constraints must be placed on the construction activities to protect
existing resources of the lagoon. In order to minimize disturbance to the
lagoon wetlands, heavy equipment will enter and leave the construction area at
one or two points where little or no vegetation 1s present. Several locations
on the north shore of the eastern basin are appropriate. Access to the western
basins will be more difficult and may need to be done under the Highway 101
bridge or from the fill site 1n the northwestern corner of the western basin.
The beginning of project construction largely will depend upon the timing of
permit approvals and CEQA compliance. However the beginning of construction
must be scheduled either prior to the beginning of the nesting season of the
ISA
Least Tern OP following fledging of all chicks. The nesting time period
stretches from April or May to August or September. If construction begins
anytime during this period 1t would disturb the terns and cause a loss of a
nesting season. Therefor* construction may begin 1n March or October. Since
1t 1s more difficult and expensive to construct during the wet season, a March
date would be preferable. By timing the construction of the project to protect
the tern, the construction should not affect any other endangered species.
Maintenance of the Lagoon Channel
Waves such as occurred during the extreme storms of 1982-83 will no doubt occur
again. These waves have enough energy to fill the lagoon channel Inlet with
sand and cobbles and overcome the scouring energy of the tidal prism flowing
out of the lagoon. There are no reliable predictions for how often such
extreme storms would occur; there are also no foolproof predictions of how well
the lagoon channel will maintain Itself under normal winter storm waves. In
addition, the large concentration of cobbles presently blocking the lagoon
mouth 1s a major concern 1n the self maintenance of the lagoon mouth. It 1s
not entirely clear that the proposed tidal prism will be able to consistently
push these cobbles from the lagoon channel. Some type of back-up system 1s
required to open the lagoon channel should It become clogged.
A number of different methods are possible. The Highway 101 bridge and Its
supporting piers create a narrow constricted channel which does not allow for
certain types of equipment to operate easily. Bulldozers and some dredging
equipment will not be able to operate well to clear the channel. The
recommended method would be the use of a drag bucket which could scoop sand and
cobbles out of the channel and redeposlt them offshore. There are two
alternative ways to set up a drag bucket system.
The recommended alternative 1s discussed 1n Jenkins & Skelley (1986). The
following excerpt describes the system,
"Drag buckets have been used successfully 1n both Inlet maintenance and
beach nourishment from offshore deposits. The best design has been the
Sauerman drag-scraper. It 1s a bottomless bucket with three vertical sides,
a I1d, with a front side open to the scraping direction and a backside
that 1s closed. The bucket 1s dragged seaward through the Inlet by a shore
mounted winch operating an endless loop drag-cable system to a block and
tackle moored offshore to the bottom. As the bucket 1s dragged seaward,
1t 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 Bat1qu1tos, as well as the volume
of sand that had to be excavated to reopen the lagoon In September 1985, It
1s estimated that an Inlet bar would typically comprise about 300 cubic
yards. Practical experience has shown that 300 round trips of the bucket
are feasible per day. Therefore a 3 cubic yard capacity bucket would allow
clearing of the Inlet 1n about 1/2 day. This would require a 260 horsepower
winch to drag a bucket of this size. The block and tackle should be
anchored seaward of the mean shoreline by about 850 feet 1n order to avoid
19A
seasonal burial by bar formations. A 350 pound Danforth anchor would
provide a 7 k1p mooring with a 2:1 safety factor for the block and tackle.
The block and tackle 1s secured to the anchor using a length of p1g-ta11
sufficiently long to reach the surface at the mooring point. A marker float
1s attached to the block and tackle at the pig- tall. The endless loop drag,
cable must be recovered upon completion of the scraping operation. This
Involves a small boat recovering the marker float, raising the block and
tackle to the surface, and disconnecting 1t from the p1g-ta1l. The drag
cable and block and tackle are then retrieved by using the shore mounted
winch. The pig-tall and anchor are left on the bottom with the marker float
attached for future relocation. To Initiate scraping operations, a
polypropylene rope must be brought out from the shore to the marker float.
There a small service boat 1s anchored. Using the propylene line a winch on
the service boat will haul the drag cable and block and tackle assembly out
to the mooring site. The marker float line 1s used to retrieve the pig-tall
and reattach the block and tackle. This procedure requires relatively calm
seas to Initiate. Furthermore recreational swimming must be prohibited 100
feet to either side of the drag cable during scraping operations."
This system would only be set up when needed and Is relatively Inexpensive to
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 would
be able to remove both sand cobbles from the channel. The drawback to this
system 1s the hazard 1t poses to swimmers when the cable 1s 1n use and Its
limitations for use 1n heavy seas.
The second alternative Involves construction of a pier for use as a base for a
drag bucket system. This alternative Involves:
"This approach would build a short pier, 400 feet 1n length and parallel to
the axis of the Inlet channel. The pier should extend 300 feet seaward and
100 feet Into the lagoon channel. The deck of this pier would be at the
elevation of the Highway 101 bridge, +19 feet MSI, and should provide access
to the highway for a mobile crane. The mobile crane 1s operated on the deck
of the pier and 1s used to drag the Sauerman bucket seaward to perform the
scraping operations 1n the Inlet channel. The scraping operation
could be performed from the pier 1n higher sea states than could the drag
cable method, and would not Involve the potential hazard to the swimmers
associated with the drag cable. The pier could be used as a recreational
fishing pier when scraping operations are not being performed. The
estimated cost 1n building such a pier 1s $2,000 per foot, or a total of
$800,000."
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 recommends the use
of the first alternative, a drag bucket system using an offshore bottom moored
block and tackle.
20A
Alternative Plans
The primary differences between Alternatives Two, Three and the preferred
Alternative 1s the size of the proposed tidal prism and thus the dredging
requirements and the acreage of 1ntert1dal and subtldal habitats. Host of the
features of the plan — construction methods, maintenance of the lagoon
channel, sediment control program, public access trail, lagoon ownership and
management, operation and maintenance and monitoring program remain the same
for all three alternatives. The habitat acreages for the freshwater marsh,
Least Tern nest sites remain the same as the preferred alternative. The
acreage of salt/brackish marsh differs slightly due to differences 1n the
dredging proposed for the far western basin. Therefore, the following
discussion will focus on the major differences between Alternatives Two and
Three and the Preferred Alternative.
Alternative Two
This alternative would have a potential mean diurnal tidal prism of 60 million
cubic feet and a potential perlgean spring tidal prism of 89 million cubic
feet. This size tidal prism may not necessarily be large enough tomalntain an
open lagoon entrance channel against large storm waves. As outlined for the
preferred alternative, the estimation of closure conditions for lagoon and
estuary entrances 1s not an exact process. As Illustrated 1n Figure 7,
Alternative Two appears to fall 1n the "never closed" portion of the graph.
However, this line of separation 1s only approximate. The minimum tidal prism
needed to keep a coastal lagoon "always open" can only be estimated within a
factor of two. Should th.1s line be offset by a factor of two. Alternative Two
would border on the "Infrequently closed" category. There 1s not as much
assurance that this size tidal prism will sustain an open lagoon channel as
there 1s for the preferred alternative.
The hydrodynamlc model was used to estimate the differences between the actual
and the potential diurnal tidal prism. The model found the difference was
small, approximately 51.
Consistent with the model findings, Alternative Two proposed very limited
dredging 1n the far western basin. A subtldal channel would be dredged but the
area to the south of the channel would be left as would a portion of the area
to the north of the channel. The model showed not significant dampening of
tidal flows with this configuration.
The dredging of the lagoon under Alternative Two would remove approximately 2.1
million cubic yards of material. The cross-sections of the lagoon would
resemble those for the preferred alternative (Figures J and K) excepting the
1ntert1dal zone would Increase 1n size slightly and the subtldal zone would
diminish 1n width slightly. The dredging 1s designed to conserve most of the
existing marsh acreage. Tidal heights 1n the lagoon under Alternative Two
would approximate those created under the preferred alternative.
The cross-sectional area of the entrance channel would be about 1500 square
feet below MSL. The side slopes would be riprap lined at a 3:1 slope through
the beach to the N.LU line. The piers on the Highway 101 bridges would require
fortification and protection from undercutting.
21A
Alternative Two would create the following habitat acreages:
Subtldal Habitat 171
Intertldal Habitat 215
Salt/Brackish Marsh 143
Freshwater Marsh 33
Least Tern nesting sites 34
Total 596 acres
The distribution of these acreages 1s Illustrated 1n Figure N.
Alternative Two would create a larger Intertldal habitat and smaller subtldal
habitat than the preferred alternative. This difference would create a larger
area of habitat for Intertldal Invertebrates and thus a larger feeding habitat
for migratory shoreblrds, resident lagoon bird species and some waterfowl. The
subtidal habitat would allow a smaller area for ocean and estuarlne fish
species, subtidal zone Invertebrates and diving ducks, gulls and terns. The
acreage of other habitat types does not differ appreciably from the preferred
alternative.
The primary drawback to Alternative Two 1s the uncertainty regarding the size
of the tidal prism and Its adequacy for maintaining an open lagoon channel.
With the slightly larger tidal prism of the preferred alternative, the
assurance of retaining an "always open* Inlet 1s greater.
Should the lagoon mough close 1n larger storm waves, 1t could be several days
to several weeks to reopen the mouth using the drag bucket system proposed.
The drag bucket system cannot be used 1n heavy seas and could not be operated
until calm weather prevailed. If several storms occur 1n a row, the delay
could reach several weeks. The delay could reach an even larger time period
should equipment failures or personnel problems occur.
During the time the lagoon 1s closed, the water 1n 1t will be trapped as will
fish and other aquatic organisms. If Impounded for any length of time,
dissolved oxygen levels 1n the lagoon could drop, algae blooms could Increase,
as would nutrients, salinity and temperatures. The fish and other aquatic
creatures would eventually die. This problem should generally be avoided by
assuring a larger tidal prism to help maintain the lagoon opening.
Alternative Three
Alternative Three has a tidal prism which 1s considerably smaller than either
Alternative Two or One. The potential mean diurnal tidal prism would be 46
million cubic feet. The smaller size of the tidal prism 1s not large enough to
maintain a lagoon opening against large winter storm waves. As figure 7
Indicates, this alternative 1s within the area of the graph for lagoons that
are "always open". However, since this estimate 1s approximate and could be
offset by a factor of two, this alternative would then become "Infrequently
closed". There 1s very little assurance that the lagoon Inlet will remain open
most of the time for Alternative Three.
22A
The hydrodynamlc model was used to estimate the differences between the actual
and the potential diurnal tidal prism. The model found the difference was
small, about 5X.
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 would be
1ntert1dal with a wide subtldal channel running the length of the lagoon. The
dredging 1s designed to conserve most of the existing marsh acreage. A limited
area of dredging 1s proposed for the far western basin. Tidal elevations in
the lagoon under Alternative Three would approximate those created under the
Preferred Alternative (see Table 19).
The cross-sectional area of the entrance channel below MSL would be about 1200
square feet. Side slopes would be 3:1 and lined with riprap through the beach
to the HLLW line. As with Alternatives One and Two, the piers for the Highway
101 bridges will require fortification from undercutting.
Alternative Three would create the following habitat acreages:*
Subtldal Habitat 71
Intertldal Habitat 315
Salt/BracMsh Marsh 143
Freshwater Harsh 33
Lest Tem Nesting Sites 34
Total 596 acres
The distribution of these acrages 1s Illustrated 1n Figure 0.
Alternative Three would create a very large area of Intertldal habitat and a
small area of subtldal habitat. This plan would s1gn1f1cantly1ncrease the
habitat area for Intertldal Invertebrates and feeding area for migratory
shorebirds, resident lagoon species and some waterfowl over the preferred
alternative. Subtldal acreages would allow for a decrease in this habitat over
the preferred alternative with attendant decreases 1n proposed ocean and
estuarfne fish habitat and feeding area for diving ducks, gulls, and terns.
The acreage of other habitat types 1s about the same as the preferred
alternative.
Alternative Three would not create an adequate tidal prism to assure that the
lagoon channel would remain open 1n most large storms. Considerable effort
would be needed to keep the lagoon functioning as a tidal system. The drag
bucket system would have to be used frequently and long delays in reopening the
lagoon mouth would occur. It might prove useful to use a different channel
maintenance system for this alternative, such as the pier and drag bucket
system. This other system does not require calm weather for Us operation and
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 more
efficient channel maintenance system were Installed, closure periods could be
quite lengthy. The aquatic organisms trapped Inside the lagoon would undergo
23A
stress as temperatures and salinity Increase, dissolved oxygen decreases and
algae blooms and nutrients Increase. Many fish and other creatures could die
as the lagoon conditions change from a tldally flushed system to an Impounded
system. Under this alternative, the only way to avoid these problems 1s to
Install a very efficient lagoon maintenance system and have the funds and
personnel available to run 1t.
No Project Alternative-.
The No Project Alternative would leave the lagoon 1n Its present state with no
enhancement. The lagoon would continue to function as a seasonal wetland and
be dependent upon freshwater Inflows for Its primary water source. The water
quality problems which currently exist would continue. Probably the greatest
change which would occur, barring any other enhancement proposals, would be the
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 will continue to
fill with sediment. Eventually, much of the eastern basin may be rarlsed to
sufficient elevation that marsh will replace sand/mud flats. If sediment
deposits are great enough, they could Increase elevations such that riparian
trees will replace salt and brackish marsh as 1s now occurring at the mouth of
Endnltas Creek. Although the lagoon would not loose habitat area, the types
of habitats may change.
24A
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EXHIBIT B
DEFINING SUPPORT TO BE PROVIDED TO CARLSBAD BY BOARD TO ACCOMPLISH
BATIQUITOS LAGOON ENHANCEMENT PROJECT
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 obligations of BOARD to CARLSBAD pursuant to
the Agreement for the marine habitat enhancement of Batiquitos
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 all support required by
CARLSBAD in order for CARLSBAD to perform its obligations under
the Principal Agreement provided CARLSBAD agrees that BOARD'S
responsibility to reimburse costs CARLSBAD has incurred shall
commence 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.
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
BOARD shall pay all costs directly or indirectly incurred by
CARLSBAD'S processing of any permits, approvals,
entitlements, or reports for consideration by CARLSBAD or any
other legislative or administrative agency provided, however,
Project Manager must approve in advance expenditures of more
than Ten Thousand Dollars ($10,000). Such costs shall
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.
b. In accordance with Section 5(a) of the Principal Agreement
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 Manager a
monthly itemized billing detailing services provided and
costs incurred. CARLSBAD shall account to BOARD for all
costs incurred upon completion of the tasks assigned to
CARLSBAD under Section 2 of the Principal Agreement.
-1-
c. Processing a, Consideration of environmental .uments
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
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. Construction
shall be accomplished according to the provisions of the
CARLSBAD Municipal Code and applicable state law. Contracts
shall be awarded pursuant to the law and policies applicable
to other public works projects of CARLSBAD. Contracts shall
be between the CARLSBAD and selected Contractor(s). The
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
Project bidders shall be informed in the Construction
specifications that CARLSBAD reserves the right not to award
a contract for any reason. CARLSBAD also agrees that no
contract will be awarded and all bids will be rejected if
BOARD is not willing to proceed with the Project. If a
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.
b. 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 Agreement.
I. A full-time Project Manager dedicated to the Project
frcn 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 from a list of qualified applicants
prepared by BOARD. With the written approval of
CARLSBAD, BOARD may, from time to time, replace the
Project Manager 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 from the CARLSBAD City Council as
implemented through the CARLSBAD City Manager or his
designee, provided, however, CARLSBAD agrees that it
-2-
will at times consult with BOARD if L , expresses
any concerns regarding 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
CARLSBAD 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 from 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) Managing consultants required to accomplish any of
the preliminary design, environmental review,
design, permit processing, or construction
management activities.
(B) Preparing staff reports for and scheduling actions
by CARLSBAD or BOARD including consultant
selection, advertisement, bid opening and contract
award.
(C) Processing invoices, vouchers, etc. for timely
payment by BOARD.
(D) Processing progress payments to contractor(s).
(E) Preparing progress reports to CARLSBAD and BOARD
as appropriate. Establishing and maintaining a
public information program on status of Project.
(F) Preparing and submitting permit applications.
(G) Supervising clerical employees, inspectors,
construction managers, surveyors as may be
required.
(H) Processing contractor payments, claims, change
orders, stop notices, etc. during the construction
phase for action by CARLSBAD.
(I) Coordinating Project events with CDFG, FWS, NMFS
CARLSBAD, and BOARD staffs.
The Project Manager shall, subject to the direction of
control of CARLSBAD and BOARD as described above, have
-3-
complete Authority to carry out the Batic,^ os Project
provided, however, that the Project Manager 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 approvals. All contracts entered into
by the Project Manager shall be let and administered
according to CARLSBAD law and policy or state law as
applicable to CARLSBAD.
II. Reimbursement for CARLSBAD employee salaries and
expenses directly related to Project's implementation
upon receipt of monthly certified statements.
III. 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 engineer(s), contract administrator(s) for the
construction phase of the project.
V. Necessary support from BOARD staff resources including:
(A) BOARD'S Pacific Texas Project Managers
(B) Environmental specialists
(C) Engineering review of preliminary and final
project designs, estimates, schedules and
calculations
(D) Legal assistance
VI. Furnishing all plans and specifications for
construction of the Project.
c. Contracts necessary to implement the Batiquitos Project
shall be entered into by the City of CARLSBAD in conformance
with its applicable laws and regulations. Contract expenses
shall first be paid from the Fifteen Million Dollar
($15,000,000) Pacific Texas deposit (Twenty Million Dollar
($20,000,000) deposit if the project costs exceed Fifteen
Million Dollars). If the Batiquitos Project costs exceed
Twenty Million Dollars ($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 Million Dollars ($20,000,000) then CARLSBAD
agrees not to pay such costs so long as BOARD defends and
indemnifies CARLSBAD against any related litigation and
provided further such costs shall be payable only from the
Harbor revenue fund.
-4-
'(£>
d. CARLSBAD and „...<D assume that any property r,^. ^ which are
necessary to undertake the project will be acquired by
voluntary dedication or purchase. If it is necessary to
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
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 from CARLSBAD. As mentioned above, if BOARD
disputes any costs claimed by consultants or contractors,
CARLSBAD shall not pay such costs so long as BOARD defends
and indemnifies CARLSBAD from any resulting lawsuits.
f. To the extent that services are not provided by a Project
Manager CARLSBAD may hire and pay for consultants, surveyors,
resident engineer(s), contract administrator(s), legal
counsel and experts, deemed necessary by CARLSBAD to
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.
4. Hold Harmless
a. BOARD 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. CARLSBAD
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 CARLSBAD and
STATE and to pay any settlement or judgment against CARLSBAD
-5-
1
or STATE resuming from the performance of the K .ncipal
Agreement or this Exhibit unless CARLSBAD or STATE
intentionally fails to perform their express obligations 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 will be treated as falling
under the California Tort Claims Act Government Code Sections
810 et seq. and that the City of CARLSBAD, City of Los
Angeles, and STATE their Boards, officers and employees v/i 11
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 all have the following provisions provided,
however, that if it is not possible for a prospective
consultant or contractor to reasonably meet one or more of
the insurance requirements, then CARLSBAD, after consultation
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.
I. Indemnification and Insurance.
The contractor or consultant retained pursuant to this
Agreement shall at all times relieve, indemnify, protect
and save harmless (1) the Cities of Los Angeles
(including 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 premises 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 subconsultants or
consultant.
(B) Any operation conducted upon or any use or
occupation of the premises by Contractor or
-6-
its officers, agents, employees,
subcontractors or subconsultants under or pursuant
to the provisions of this contract or otherwise;
(C) Any act, omission or negligence of Contractor or
Consultant, its officers, agents, employees,
subcontractors or subconsultants regardless of
whether the negligence of the City of CARLSBAD or
the City of Los Angeles or STATE contributed to
such act or failure to act;
(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 (1), (2), (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
this Agreement.
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
(A), (B), (C), (D), 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
insurance as specified below.
II. Workers' Compensation.
(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.
-7-
(B) The Contractor or Consultant shall file with
CITIES one of the following: 1) a certificate of
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
director or the insurer. Such documents shall be
filed prior to commencing the work of this
Agreement.
(C) 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
agent to determine whether its proposed
construction methods will render its employees
subject to coverage under the Act.
III. Liability and Protection and Indemnity Insurance.
(A) The Contractor or Consultant shall furnish a
policy of comprehensive general liability
insurance, including endorsements for contractual
liability assumed, and automobile liability
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 also
include an endorsement for products and completed
operations insurance. Consultants shall provide
errors and omissions insurance. The comprehensive
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 subconsultant 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
Los 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.
-8-
,£>
(B) The minimum limits of Liability Insurance shall be
the limits normally carried by the Contractor or
Consultant but not less than $15,000,000 combined
single limit for property damage and bodily injury
including death (or such other amounts as CITIES
may specify). If the submitted policies contain
aggregate limits the Contractor or Consultant shall
provide evidence of insurance protection for such
limits so that the required coverage is not
diminished in the event that the aggregate limits
become exhausted. Said limit shall be without
deduction, provided that CITIES and their designee
may permit a deductible amount when, in their
judgment, it is justified by the financial capacity
of the Contractor or Consultant.
(C) Nothing herein shall be construed as limiting in
any way the extent to which the Contractor or
Consultant may be held legally responsible for
damages to persons or property.
(D) When the work of this specification requires the
use of watercraft, the Contractor or Consultant
must additionally 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, B, and C above.
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 shall
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 from the execution or from the
nonexecution of the work.
(B) 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 completion and final acceptance, and
shall deliver the work completed in accordance with
the terms of the Contract.
(C) The Contractor or Consultant responsible for the
work is encouraged (but is not required) to obtain
comprehensive insurance covering the full insurable
value of the work and providing protection during
-9-
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
construction hazards peculiar to the work.
V. The special insurance endorsement attached hereto as
Attachment B-l shall be made available to Contractors
and Consultants to satisfy the insurance requirements
described above.
VI. The bidding specifications shall 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.
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.
II. The approval of insurance by CITIES shall be a
condition precedent to the right of the Contractor or
Consultant to demand or receive payment for the work
under the contract requiring such insurance. No request
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
given.
III. Contractor or Consultant shall submit two "certified
duplicate" copies of all policies of required insurance
with personally executed signatures of authorized agent
or representative. Facsimile signatures will not be
approved. IN LIEU OF CERTIFIED DUPLICATE COPIES,
CERTIFICATES OF INSURANCE INDICATING THE REQUIRED
COVERAGES WILL BE ACCEPTED IF THE SPECIAL ENDORSEMENT
APPEARING IN THE INSURANCE REQUIREMENTS SECTION OF THIS
SPECIFICATION IS EXECUTED AND ATTACHED TO EACH OF THE
DUPLICATE CERTIFICATES. (Attachment B-l)
IV. 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 must contain a noncancellation clause
exactly as fol lows:
-10-
'.» .s agreed that the insurance pro,,ded 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."
Such policies shall contain an endorsement
substantially in the form of Attachment B-l.
e. Indemnity After Land Interests Transferred.
The STATE agrees that once it becomes 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.
6. City Approval.
Whenever approval of CARLSBAD is required under the Principal
Agreement or this Exhibit the approving authority is the City
Manager unless the Carlsbad Municipal Code or other law requires
the decision to be made by the City Council or other City agency
or official.
-11-
ATTACHMENT B-l
ENDORSEMENT FOR
COMPREHENSIVE GENERAL LIABILITY
AND FOR
PROTECTION AND INDEMNITY POLICIES
SPECIAL INSURANCE 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 Commissioners, 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
authority, are included as additional insureds with respect to all
operations, uses, occupations, acts, and activities of the insured
pursuant to Agreement No. between the City of CARLSBAD and
, regardless of whether liability is
attributable to the named insured, or a combination of the insured
and additional insureds. Such insurance is to be primary and not
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:
COVERAGES TO
WHICH THIS EFFECTIVE
ENDORSEMENT DATE OF POLICY POLICY LIMITS OF INSURANCE
ATTACHES ENDORSEMENT NUMBER PERIOD LIABILITY COMPANY
-12-
The policy(ies) sha'i . r^c be cancelled or reduced in courage until
after the Board of Harbor Conmissloners and the City Attorney of the
City of Los Angeles and the City of Carlsbad and its City Attorney
have each been given thirty (30) days prior written notice by
certified mail, return receipt requested, addressed as follows:
Board of Harbor Commissioners Office of the City Attorney
P. 0. Box 151 City of Carlsbad
San Pedro, California 90733 1200 Elm Avenue
Carlsbad, CA 92008-1989
Office of the City Attorney State Lands Commission
P. 0. Box 151 ' 1807 13th Street
San Pedro, California 90733-0151 Sacramento, CA 95814
-10-
There are no dec .Dies or self-insured retentions ^nless
otherwise noted. ($ deductible (or self-insured
retention) for
coverage.)
APPROVED AS TO FORM
JAMES K. HAHN, City Attorney
City of Los Angeles
By
APPROVED AS TO FORM
City of Carlsbad
, City Attorney
By
VEHrlm
csc3-7250
10/14/87
INSURANCECOMPARY
ADDRESS:
By
AUTHORIZED OFFICER
(No facsimile signature accepted)
TITLE:
ADDRESS:
TELEPHONE:
DATE:
-14-
EXHIBIT C
HABITAT EVALUATION
SUMMARY
of the proposed
PACIFIC TEXAS PIPELINE COMPANY PROJECT
in the PORT OF LOS ANGELES
and the proposed
BATIQUITOS LAGOON ENHANCEMENT PROJECT
in the CITY OF CARLSBAD
FEBRUARY 1987
Participants:
U.S. Fish and Wildlife Service
National Marine Fisheries Service
California Department of Fish and Game
Port of Los Angeles
Section 1. INTRODUCTION
The Pacific Texas Pipeline Company (Pactex), a private corporation, proposes
to construct a crude oil pipeline system that would extend from the Port of
Los Angeles, California to Midland, Texas. A 75-foot deep channel would be
dredged in Los Angeles outer harbor and the dredged material used to create a
110-acre (at MHW) landfill island. This landfill would be used as a berthing
area to receive tankers of up to 225,000 DWT which would carry primarily
Alaska North Slope oil and for locating a 4.8-million barrel capacity tank
farm. The landfill in outer harbor would be constructed in waters about 32-40
feet in depth. The Pactex landfill area has been reduced in size due to
changes in engineering design (now fully revetted with rock) and as a result
of California Coastal Commission permit conditions. The bottom footprint of
the landfill was presented in the Draft EIR/EIS as 208 acres and was revised
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/EIS)
was prepared for the Pactex project by the Los Angeles Harbor Department and
the U.S. Bureau of Land Management as co-lead agencies under the California
Environmental Quality Act (CEOA) and the National Environmental Policy Act
(NEPA), respectively. The Los Angeles Board of Harbor Commissioners certified
the Final EIR for the Pactex project in November 1985.
In early 1985, LAHD requested the participation of FWS, NMFS, and CDFG in the
assessment of biological impacts of the proposed Pactex project and in the
formulation and assessment of a biological mitigation project. The fish and
wildlife impact assessment and mitigation is pertinent to CEQA, to the
consideration of the required COE Section 10/404 permits and the California
Coastal Act Port Master Plan amendment and coastal development permits. The
loss of marine, coastal embayment habitats of outer Los Angeles Harbor from
dredge and landfill construction required for the proposed Pactex project was
discussed in the EIR/EIS. These habitats are principally of value to
nearshore marine fishes, numerous water-associated bird species and some
waterfowl. No significant terrestrial habitats would be impacted by the
proposed Pactex project in the POLA area.
In consultation with the staffs of the FWS, NMFS, and CDFG, potential
mitigation project sites between Point Conception and the U.S. Mexican border
were examined by POLA. The potential sites to mitigate the Pactex project
were narrowed to the following areas: 1) Los Cerritos wetlands - City of
Long Beach, Los Angeles County, 2) Batiquitos Lagoon - City of Carlsbad, San
Diego County, and 3) Tijuana River estuary - San Diego County. The FWS,
NMFS, and CDFG considered Batiquitos Lagoon to be a prime candidate for a
restoration project that was compatible with project mitigation objectives.
California Coastal Conservancy, City of Carlsbad, local property owners, and
interested parties supported a restoration/mitigation project at Batiquitos
Lagoon.
Section 2. DESCRIPTION OF THE MITIGATION PROJECT
Batiquitos Lagoon, 596-acre basin is located in Northern San Oiego County,
within the corporate limits of the City of Carlsbad. The lagoon occupies an
elongated coastal basin that extends approximately 2.5 miles inland from the
ocean and one-half mile in width. Two freshwater creeks, the San Marcos and
the Encinitas, drain unto the upper reach of the lagoon. This lagoon, like
many others along the southern coast of California, was (and is) subject to
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 River
Valley, the western portion of the lagoon is constricted by three major
transportation arteries: Pacific Coast Highway (Carlsbad Boulevard), an
AT & SF railroad bridge, and Interstate Highway 5. All of these recent
developments contributed significantly to the rapid increase in sedimentation
and the closure of the lagoon mouth to tidal influence except under extreme
high tide and wave conditions, or high outflows. Seasonal freshwater inflow
and the virtual elimination of tidal influence have resulted in a pattern of
fresh or brackish water inundation after winter rains, followed by evaporation
resulting in very high salinities (60 parts per thousand) and large salt-flats
in the dry season. This is particularly true in the 360-acre eastern lagoon
basin, east of Interstate 5. In dry years, broad areas of the lagoon dry up
completely, creating bare salt-flats and attendant odor problems.
These extreme aquatic environmental conditions limit the lagoon biota to
largely plankton and insects. Fishes are usually found only in the deeper
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 nested
in several areas within the lagoon.
The upper lagoon has acted as a sedimentation basin for San Marcos and
Encinitas Creeks; deposition rates have averaged 1.1 to 1.4 cm/year since the
early 1900's. Continuing sedimentation is further restricting aquatic
habitats and left unchecked will convert the lagoon basin to upland
conditions.
A complete description of Batiquitos Lagoon is found in Batiquitps Lagoon
Habitat Enhancement Study, by Keith MacDonald and C. Robert Feldmeth(April
1985), Alternatives for Maintaining Tidal Circulation in the Batiquitos
Lagoon,"California by Scott A. Jenkins and David W. Skelly (February 1985),
anatheDraft Batiquitos Lagoon Enhancement Plan (1986) by the California
Coastal Conservancy.
A process of evaluating various enhancement alternatives at Batiquitos Lagoon
has been ongoing for a number of years by property owners, resource agencies,
local citizen interest groups (e.g., Batiquitos Lagoon Foundation) and the
City of Carlsbad. The proposed Lagoon Enhancement Plan provided the
opportunity, in view of Pactex's mitigation requirements for the impacts at
POLA, to develop an enhancement project at Batiquitos Lagoon which meets the
goals of the interest groups, offsets the Pactex project impacts, and creates
excess habitat values for future fill projects in San Pedro Bay. These Lagoon
Enhancement Plan goals 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 in
perpetuity
The proposed Batiquitos Lagoon enhancement project is described in detail in
the Coastal Conservancy's Draft Batiquitos Lagoon Enhancement Plan (1986). In
addition to the preferredenhancementproject,arangeof alternative
configurations were evaluated. The main features of this project include the
construction of a lagoon mouth channel approximately 200 feet wide across the
existing beach, westerly of Carlsbad Boulevard. The channel will be lined
with riprap to the low water edge of the beach. Through a combination of
excavation and dredging, a large area of the lagoon will be reconfigured to
establish subtidal and intertidal habitats. The volume of material to be
removed will be sufficient to establish a tidal prism which will assure
continuous tidal influence and daily scouring of the lagoon mouth. Suitable
material will be used for beach replenishment, if feasible. The levee (or
berm) will separate an area of the marsh from tidal influence thereby
preserving the existing freshwater and brackish marsh habitat. Water will be
divered from San Marcos Creek to maintain the diked freshwater marsh.
Additionally, sediment catch basins will be placed upstream in the creek
channels that input to the lagoon.
Since shorebirds, dabbling ducks and the endangered California least tern
(CLT) presently use the lagoon, the project is designed to result in no net
loss of habitat values for these species. Only the FWS and CDFG conducted
this analysis of the net effect of each project alternative upon the existing
habitat value for shorebirds and dabbling ducks. The restoration plan
includes provisions for CLT nesting areas. No fewer than four nesting
locations averaging about 8 acres each will be constructed within the lagoon
system as determined by FWS and CDFG.
In addition to the preferred enhancement project (presently proposed), a range
of preliminary alternative configurations were evaluated.
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. Figure 1 presents a schematic diagram of the evaluation procedure.
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 alternatives
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, being
prepared by Woodward^Tlyde Consultants for the Coastal Conservancy.
All important activities, assumptions, and conclusions, directly related to
the habitat evaluation, were discussed or conducted mutually and cooperatively
by the evaluation team. The process utilized in this habitat evaluation
included the following general steps:
a) determination of proposed project scope;
b) fish and wildlife resources likely to be significantly impacted;
c) establishment of mitigation goal;
d) definition of harbor cover type(s);
e) mitigation site identification;
f) conceptual design of mitigation area construction;
g) harbor and mitigation site evaluation species list development;
h) formulation of habitat suitability indices for the project and
mitigation alternatives;
i) determination of habitat units for the project area and the
mitigation alternative area;
j) determination of the necessary size of the mitigation area to offset
proposed project; and
k) determination of the potential excess habitat values (mitigation
credits) available to offset future fill projects in San Pedro Bay for
each alternative.
Relative value indices were not used.
The fish and wildlife resources of concern in the landfill project vicinity
were water-associated migratory birds, such as gulls, terns, cormorants, brown
pelicans, grebes, mergansers, and surf scoters, and coastal marine fishes such
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 of
in-kind habitat value. The evaluation species included exclusively fishes and
birds. The evaluation species chosen for the harbor site and the compensation
site are either common to both systems or considered ecologically equivalent.
A fundamental premise to the habitat evaluation procedure was that fishery
resources would not be traded for avian resources, or vice versa. Since the
existing habitat at Batiquitos Lagoon supports shorebirds, dabbling ducks and
the endangered California least tern, it was agreed that the restoration
project for Batiquitos must conserve the existing habitat values for these
species. Therefore, a separate evaluation was conducted by FWS and CDFG to
assess the existing shorebird, dabbling duck and least tern habitat values at
Batiquitos Lagoon. This was a major factor in determining the preferred
enhancement/mitigation project to be implemented at Batiquitos.
Only a few habitat compensation measures are presently considered feasible for
offsetting habitat losses of harbor landfills. The principal measure at
Batiquitos Lagoon is to restore unrestricted tidal influence to a significant
portion of the lagoon and create and enhance coastal embayment habitats by
excavating varying volumes of sediment. In its present condition, the areas
of Batiquitos Lagoon which would be enhanced have little biological value to
any marine evaluation species. Several alternative enhancement plans that
achieve the restoration goals by creating different proportions of intertidal
and subtidal areas were proposed. The considered alternatives with varying
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 Harbor water surface area measured at the mean high water line,
±4.8 feet mean lower low water (MLLW); and Batiquitos Lagoon water surface
area measured from ±5.0 feet MLLW to -5.5 feet MLLW. Only intertidal and
subtidal areas within this evaluation range were evaluated. Areas that
contain California least tern nesting activity, salt marsh or freshwater
marsh/sedimentation basin were not considered in the habitat evaluation
process.
The twenty (20) selected evaluation species or groups for both the proposed
landfill and enhancement alternative sites are listed in Table 1. The habitat
suitability indices for each species or groups at the proposed sites were
determined by the judgement of the team member(s) of each participating agency
based upon best available information and then averaged. The habitat
suitability indices ranged from 0.0 for no habitat suitability to 1.0 for
complete habitat suitability. Habitat suitability indices were derived for
the existing condition and the future condition at both the project impact
site and for the alternative enhancement proposal sites. The landfill and the
enhancement construction were assumed to be concurrent. The habitat loss from
outer POLA fill was assumed to be total and to have occurred between year zero
and year one. Similarly, the Batiquitos Lagoon habitats in the areas to be
restored were assumed to have little value for the evaluation species and that
full predicated habitat value would be achieved after the first year following
enhancement.
From the array of enhancement alternative previously evaluated, a preferred
enhancement proposal was developed for implementation (see Table 2). Under
this proposal, 390 acres are available for restoration. Based upon
preliminary engineering design, the net impact of the proposed Pactex
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
Batiquitos 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
(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 Batiquitos Lagoon habitat gains would not only
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 Pedro
Bay outer harbor habitat) that may be used to offset future landfill project
in San Pedro Bay or other appropriate port districts.
In summary, the three alternative plans in Exhibit A, the Batiquitos Lagoon
Enhancement Plan, satisfactorily meet the following objectives:
1. avoids harm to California least tern nesting activity,
2. avoids any loss of habitat value for shorebirds and dabbling ducks,
3. offsets marine resources and habitat loss from the Pactex landfill,
and
4. Would provide additional habitat values which would be counted as
mitigation credits that can be used to offset future San Pedro Bay
landfill.
Figure 1: Habitat Evaluation Process Flow Diagram
define project
and likely impacts
determine
mitigation goal
determine habitat
suitability indices
for project area
i
-k.
select
evaluation species
define mitigation
area and impacts
calculate the habitat
units in the
mitigation area
determine net loss
within project
determine habitat
suitability indices
calculate the habitat
units in the project
area
determine net gain
within mitigation area
calculate mitigation area
required to offset project
area loss
T
determine excess (mitigation
habitat value) available for
banki ng
Table 1: Evaluation Species and Groups for the
Batiquitos Lagoon Enhancement Projects
Pactex Landfill And
1. California halibut
2. White croaker
3. Gobiedae
4. Diamond turbot
5. Bay ray
6. Bay sharks
7. California corbina
8. Anchovy species
9. Oueenfish
10. Topsmelt
11. Barred sand bass
12. Shiner surfperch
13. Bonita/barracuda
14. White surfperch
15. California killifish
16. Spotted sand bass
17. California tonguefish
18. Striped mullet
19. Diving ducks
20. Gulls/terns/cormorants
Paralichthys californicus
Genyonemus lineatus
(bay, arrow and cheekspot gobies,
long-jaw mudsucker)
Hypsopsetta guttulata
Myli obatfs~Ca1i forni ca
(leopard shark and smoothhounds)
Menticirrhus undulatus
(northern slough, and deepbody)
Seriphus politus
Atherinops affinis
Pa r a 1 a bralT nebu 1 Tfer
Cymatogaster aggregata
Sarda chiliensis/Sphyraena argentea
Phanerodon furcatus
Fundulus parvipinnis
Paralabrax maulatofasciata
Symphurus atricauda
Mugil cep'halus
(scoters, mergansers, ruddy, bufflehead)
Table 2: Summary of Batiqultos Lagoon Enhancement Plan Alternatives
Alternative 1 Alternative 2 Alternative 3
Area of intertidal 175217 317
(Acres)
Area of subtidal 220 171 71
(Acres)
Area of salt/brackish marsh" 139 141 141
(Acres)
Area of freshwater marsh 33 33 33
(Acres)
Area of least tern habitat 34 34 34
(Acres)
<r
Table 3: Pactex Landfill Project Impact*
Habitat
Soft bottom - footprint
deep water protected
Piling (within 35 ft. of
wharf face)
Shallow piling
Deep piling
Benthic side slope
Deep water protected
Deep water unprotected
Rocky dike habitat (exposed)
Shallow water protected
Deep water protected
Total
Actual Gain
(or loss)
in Acres
(140.8)
1.0
1.4
1.4
0.9
4.3
12.1
(119.7)
Weighted
Value
1.0
1.0
0.5
1.0
0.5
1.5
1.0
Weighted Gain
(or loss)
in Acres
(140.8)
1.0
0.7
1.4
0.4
6.4
12.1
(118.8)
Based on a preliminary engineering design using current NOAA harbor bottom
topographic data and due to a CCC permit condition, the landfill footprint
area of such impact has been revised to 140.8 acres. With application of
the biological mitigation procedure (using wildlife agencies' weighted
values) described in Appendix F of the Draft 2020 Plan (COE, 1984), the net
impact of the proposed Pactex construction in POLA outer harbor was
determined to be 118.8 acres. This includes mitigating for the water area
above the rocky slope to the toe of the landfill footprint such that
further mitigation for this area, if filled in the future, will not be
required.
Table 4: Summary of Habitat Evaluation For Pactex Landfill And Batiquitos Lagoon
Enhancement Plan Alternatives _
PARAMETER EVALUATION SITES
PROJECT BATIQUITOS LAGOON
LANDFILL SITE ENHANCEMENT
Alternative 1 Alternative 2 Alternative 3
1. Cover Type Area 118,8 390 388 388
Evaluated (acres)
2. Intertidal/subtidal 44/56 56/44 82/18
distribution within
evaluation area (%)
3. Existing condition * 9.84 0.90 0.90 0.90
(existing habitat
units/acre)
4. Future condition 0 12.10 11.35 6.02
(future habitat
units/acre)
5. Net habitat units/acre (9.84) 11.20 10.45 5.12
(4.-3.)
6. Offset ratio 1.138 1.062 0.520
(Net HU project)
(Net HU restoration)
7. Area of Batiquitos (104.4) (111.9) (228.5)
enhancement required
to offset Pactex landfill
(Cover Type Area; acres of Batiquitos)
Offset Ratio
* Excluding shorebirds and dabbling ducks which were evaluated separately.
Table 5: Summary of Habitat Evaluation For Batiquitos Lagoon Enhancement
Plan Alternatives and Outer Harbor San Pedro Bay
PARAMETER Batiquitos Lagoon Enhancement Plan
Alternative 1 Alternative 2 Alternative 3
1. Predicted habitat units 443.8* 412.1** 201.8***
gained from Batiquitos
enhancement (= acres of
central outer harbor
San Pedro Bay****)
2. Habitat units lost from (118.8) (118.8) (118.8)
Pactex landfill (= acres
of central outer harbor
San Pedro Bay****)
3. Excess habitat units 325.0 293.3 83.0
available after Pactex
project for future mitigation
(acres of central outer
harbor San Pedro Bay****)
* 390 acres of Batiquitos 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
**** 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 landfill 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 accomplish 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
fills are permitted.
7003 esc
August 10, 1987
EXHIBIT D
DEFINING METHODOLOGY TO DETERMINE FUNDS NECESSARY TO ESTABLISH ANNUITY AND
INVESTMENT ACCOUNTS TO FUND THE MAINTENANCE ACCOUNT FOR THE BATIQUITOS LAGOON
ENHANCEMENT PROJECT.
1. Purpose
The methodology described herein shall be used by BOARD and CDFG to
comply with the funding requirements of Section 10 (Project Maintenance
Responsibilities) of the Agreement for the marine habitat enhancement of
Batiquitos Lagoon ("Agreement") to which this Exhibit is attached.
2. Determination of Annuity Amount to Fund Maintenance for First 30 Years
a. Determination of the Annuity Amount
In accordance with Section 10(b) of the Agreement, the amount of
funds necessary to establish the Annuity will be determined based on
the future equivalent of $200,000 in 1987 dollars at the effective
date of the Agreement. This future equivalent shall be determined in
accordance with the inflation factors given in Table D-l. Said
inflation factors are based upon Data Resources Institute's (DRI)
"U.S. Long-Term Review", Spring 1987 forecasts for calendar years 1987
through 1991. Based on these factors, the annuity amount for each of
the years 1988 through 1991 is given in Table D-l.
TABLE D-l
Year Inflation Factor Annuity Amount
1987 - $200,000
1988 1.0405 $208,100
1989 1.0445. $217,360
1990 1.0430 $226,707
1991 1.0415 $236,115
As such, if Construction Certification (as defined in Section 6(k) of
the Agreement, occurs in calendar year 1990, the dollar basis for
establishing the Annuity in accordance with Subsection c. below would
be $226.707.
- 1 -
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 Investment
Account amounts shall be based on the actual inflation rate occurring
between the effective date of the Agreement and the date of
Construction Certification as reported by DRI at the time of
Construction Certification. For example, if Construction
Certification occurs in 1992 and actual inflation between 1987 and
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 applied
to the annual maintenance cost for the period of time of thirty
(30) years following Construction Certification, is to be five and
two/tenths percent (5.2%). Said inflation rate is based upon the Data
Resources Institutes "U.S. Long-Term Review", Spring 1987 forecasts.
c. 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 sixty
(60) days after Construction Certification, CDFG and BOARD shall meet
to determine the amount of funds necessary to transfer from the Escrow
Account as described in Section 9(a) of the Agreement, or from the
Harbor Revenue Fund, as may be required in accordance with
Sections 5(b) and 9(f) of the Agreement, to establish the Annuity.
The initial deposit shall be determined from the annuity amount from
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 a
computer model, a series of annually compounded interest calculations
will be made which result in an ending balance of approximately zero
dollars following 30 years of transferring funds from the Annuity to
the Maintenance Account.
Table D-2 is a sample computer model calculation, based on the
factors given above, assuming Construction Certification occurs in
calendar year 1991.
In this example, the initial deposit required would be $4,852,000
including the initial transfer of $236,115 from the Escrow Account
required by Section 10(b) of the Agreement. Table D-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 to
the nearest thousand dollars):
0 Interest earned: $5,763,000 x .082 = $473,0000 Amount transferred to
Maintenance Account: $ 505,000 x 1.052 = $531,0000 Annuity ending
balance: $5,763,000 + $473,000 - $531,000 = $5,705,000
- 2 -
TABLE D-2
BATIQUITOS1 LAGOON ENHANCEMENT PROJECT MAINTENANCE FUNDING
INITIAL
DEPOSIT
$4,852,485
INVESTMENT
RATE
8.2%
INFLATION ANNUITY
RATE AMOUNT
5.2% $236,115
=====================================================
YEAR
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
INTEREST
EARNED
378,542
389,215
399,703
409,937
419,838
429,318
438,278
446,608
454,185
460,873
466,521
470,961
474,006
475,452
475,069
472,609
467,792
460,315
449,842
436,002
418,390
396,559
370,018
338,229
300,604
256,494
205,192
145,922
77,834
• TO MAINTENANCE
ACCOUNT
236,115
248,393
261,309
274,898
289,192
304,230
320,050
336,693
354,201
372,619
391,995
412,379
433,823
456,382
480,114
505,079
531,344
558,973
588,040
618,618
650,786
684,627
720,228
757,680
797,079
838,527
882,130
928,001
976,257
1,027,023
==========:
ENDING
BALANCE
4,616,370
4,746,519
4,874,425
4,999,230
5,119,975
5,235,582
5,344,850
5,446,435
5,538,842
5,620,408
5,689,286
5,743,428
5,780,566
5,798,191
5,793,529
5,763,519
5,704,784
5,613,603
5,485,878
5,317,102
5,102,318
4,836,081
4,512,412
4,124,750
3,665,900
3,127,977
2,502,341
1,779,532
949,196
7
- 3 -
f?-
3. Determination of Initial Deposit to Establish Investment Account.
In accordance with Section 10(c) of the Agreement, within sixty (60) days
after Construction Certification, BOARD shall establish the Investment
Account by transfer from the Escrow Account, or from the Harbor Revenue
Fund, in accordance with Section 5(b) of the Agreement. The amount of the
deposit into the Investment Account shall be determined based upon: the
annuity amount from Subsection a., above, the agreed upon annual inflation
rate of 5.2% and the agreed upon investment rate of 8.2% by application of
the following formula:
D - [ (x) (l+i)301/(l*I)30 for
l-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 = [$236.115 (1.052)30]/(1.082)30 = $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 10(c) of the Agreement, at the end of the
thirty (30) year period following Construction Certification, BOARD, SLC
and other parties shall meet (within 60 days) to determine the adequacy of
the Maintenance Account balance to provide for maintenance beyond the
first 30 years. This section describes the methodology to be used in
making this determination.
Each of the 30 actual annual maintenance expenditures, based on records
maintained by CDFG, in accordance with Section 10(f) of the Agreement,
shall be adjusted to account for actual annual inflation between the year
in which the expenditure was made and the end of the 30 year period
following Construction Certification. For example, an expenditure of
$750,000 in the 25th year would be adjusted as follows if actual inflation
,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 x
1.047 = $975,543.65.
Following this procedure for each of the 30 annual maintenance
expenditures will result in a list adjusted to reflect the value of
dollars at the beginning of the 31st year following Construction
Certification.
- 4 -
This list of 30 inflation-adjusted annual maintenance expenditures shall
then be utilized to determine a mean annual maintenance expenditure in
year 31 dollars by dividing the sum of the 30 annual adjusted maintenance
figures by 30. Additionally, the list of annual maintenance expenditures
shall be used to identify the greatest maintenance expenditure which was
required in any of the 30 preceding years.
A 95% confidence interval about the inflation-adjusted mean annual
maintenance cost shall be calculated using the following formula:
x+ 1.96s for X = Adjusted mean annual maintenance expenditure.
"
N = 30 (the number of years being sampled),
s = Standard deviation of the 30 inflation-corrected annual
maintenance expenditures.
For example, if X = $500,000; and s = $51,000 then the 95% confidence
interval about the mean annual maintenance cost would be
$500,000 + 1.96 ($51.000)
{3rT
or $500,000 + $18,250.12; or $481,749.88 < X < $518,250.12.
Next, the 95% confidence intervals shall be arrayed about the mean annual
inflation, and the mean observed annual difference between interest and
inflation through analysis of each of these parameters as they relate to
each of the 30 years following Construction Certification.
For Example:
1) The 95% confidence interval about the mean inflation calculated over
the 30-year period will be computed as follows:
1 + s(1.96) for i = The mean of the observed interest rates for each of
JN the 30 years following certification.
N = 30
s = Standard deviation.
If i = 5.2% standard deviation = 1.0% and N = 30, then the 95% confidence
interval would be 5.2% +_ 0.35%; or
4.85% < i < 5.55%
2) The 95% confidence interval about the mean difference between
interest and inflation (Y) will be computed as follows:
- 5 -
Y + s(1.96) for Y = The mean of the observed difference between interest
JN 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
inflation.
If Y = 3.0; s = 0.5; and N = 30, then the interval would be
3.0 +_ 0.18; or 2.82 £Y<3.18
In order to attempt • to assure the permanent adequacy of the long term
(post 30 year) Maintenance Account, the higher figure in the 95%
confidence interval about mean inflation shall be identified (5.55% in the
above example); the lower figure in the 95% confidence interval about the
mean difference between interest and inflation shall be identified (2.82%
in the above example); and the higher figure in the 95% confidence
interval about mean inflation-corrected annual maintenance expenditure
shall be identified ($518,250.12 in the above example). These identified
numbers shall then be entered into the following equation:
B - C (1+it) (X+) ] for 8 = requisite post 30 year balance
Y+i t - Upper figure of a 95% confidence
interval about mean observed annual
inflation in each of the 30 years
following certification.
Xt = The upper figure in the 95%
confidence interval for the mean
adjusted annual maintenance cost as
discussed above.
Y i = Lower figure of a 95% confidence
interval about the observed difference
between interest and inflation for each
of the 30 years following Construction
Certification.
Using the previously derived figures for the sake of illustration only,
we have:
B = C 1.0555) ($518,250.12)] = $19,397,624
.0282
Lastly, as has been previously indicated, use of the inflation-corrected
list of annual maintenance costs will enable the identification of the
largest annual maintenance expenditure (LAME) (corrected, of course, to
the relative value of dollars in the 31st year following certification of
the lagoon enhancement project). For the sake of illustration, let us
assume this figure to be $1.5 million. This maximum expenditure figure is
to be combined with the value of B as determined above. Combining the
computed value of B above with the presumed maximum observed annual
maintenance expenditure results in a total of $20,897,624.
- 6 -
If the total of funds available in the Maintenance Account plus the funds
remaining in the Annuity Account plus the funds available in the long-term
Investment Account exceed the sum of B plus LAME, then
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 to
the sum of B plus LAME and shall establish two separate accounts
therewith. These accounts shall be known as the LAME account (equivalent
in size to LAME as identified above) and the permanent maintenance account
(or B account) equivalent in size to B as B is to be computed. Use of
these two accounts shall be limited to providing for maintenance of the
Batiquitos Lagoon Restoration Project area. CDFG shall rely upon use of
the B account for lagoon maintenance except in cases of emergency in which
event CDFG may draw against the LAME account.
Using the agreed to interest and inflation assumptions, (i.e., interest
at 8.2% and inflation at 5.2%) and assuming, for example, an initial
deposit of $3,385,764 into the investment account and an annual estimated
maintenance cost of $236,115 (i.e., the deposit takes place 4 years from
the effective date of the Agreement). This account will grow to
$36,014,261, and BOARD would, given this example, receive a refund of
$36,014,261 - $20,897,624 = $15,116,636 plus any remaining funds available
in the Annuity Account. If the differential between interest and
inflation turns out to be measurably higher than the agreed to 3.0%;
and/or if the annual mean corrected maintenance figure is less than
$500,000; and/or if expenditures and interest rates exhibit a degree of
consistency which results in tightening the 95% confidence intervals about
the parameters discussed above, then the refund could be greater than the
$15,116,636 indicated above.
If, alternatively, the total funds available in the Maintenance Account
plus the funds available in the Annuity and Investment Accounts are less
than or equal to the sum of B and LAME, then CDFG shall become the sole
owner of funds then available and BOARD shall receive no refund. Given
this instance, CDFG shall use the combined total of the Maintenance
Account, Annuity Account and Investment Account exclusively for the
maintenance of the Project area and shall attempt to secure additional
funds which may be required for such maintenance from a variety of State,
Federal, local, or private funding sources.
VEH:cam
CSC3-5315
- 7 -