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HomeMy WebLinkAbout2010-04-06; City Council; 20183; Approve Amendment Enhancement of Batiquitos LagoonCITY OF CARLSBAD - AGENDA BILL 16 20.183AB# MTG. 04/06/10 DEPT- PEM APPROVE THE FIRST AMENDMENT TO THE 1987 MULTI-AGENCY AGREEMENT FOR THE ENHANCEMENT OF BATIQUITOS LAGOON DEPT. DIRECTOR CITY ATTORNEY < CITY MANAGER ^ RECOMMENDED ACTION: Adopt Resolution No. 2010-071 approving the first amendment to the 1987 multi-agency agreement for the enhancement of Batiquitos Lagoon. ITEM EXPLANATION: In 1987, the City of Carlsbad joined five other public agencies including the United States Fish and Wildlife Service, National Marine Fisheries Service, California Department of Fish and Game, California State Lands Commission, and the City of Los Angeles in the execution of a formal agreement to enhance Batiquitos Lagoon. The agreement was the result of many years of negotiations among Federal, State, and local public agencies in which the lagoon was biologically enhanced and reopened to daily tidal action for the first time in approximately seventy-five years. Financing for the estimated $55 million project was provided by the City of Los Angeles as mitigation exchange for offsetting marine losses resulting from development within the City's Port of Los Angeles. The City of Carlsbad played a central role in the entitlement, design, and construction of the Batiquitos Lagoon Project which was successfully completed in 1996. Under the terms of the 1987 agreement, operation and maintenance of the completed project became the responsibility of the California Department of Fish and Game. The Department has undertaken various maintenance dredging activities over the last thirteen years in an effort to maintain critically important tidal exchange among the lagoon basins and the ocean. Management of the overall maintenance program and oversight of the dredging activities themselves have at times been difficult. The State has faced recurring challenges in contract procurement, management of construction field work, dredging design technical expertise, and limitations in the use of program funding. The lagoon currently is in need of a substantial maintenance dredging effort of an estimated 200,000 cubic yards just to maintain basic tidal exchange. According to CDFG representatives, the next maintenance dredging effort is scheduled for Fall of 2010. Over the last year, discussions among involved Resource Agency representatives have produced the attached First amendment to the 1987 multi-agency Batiquitos Lagoon agreement. This amendment proposes the creation of an advisory Steering Committee comprised of representatives of five of the original six participating agencies to assist with planning and implementation of the maintenance dredging activities essential to maintaining the lagoon system. The City of Los Angeles has opted not to actively participate in the work of the Steering Committee since their primary role and obligations under the 1987 agreement have concluded. The City of Los Angeles remains trustee of a portion of funds earmarked for long term lagoon maintenance available to the State in the future. Maintenance funding was the sole responsibility of the City of Los Angeles under the terms of the original agreement. DEPARTMENT CONTACT: John Cahill 760-602-2726 iohn.cahill@ci.carlsbadca.gov FOR CITY CLERKS USE ONLY COUNCIL ACTION: APPROVED DENIED CONTINUED WITHDRAWN AMENDED D D Daa CONTINUED TO DATE SPECIFIC CONTINUED TO DATE UNKNOWN RETURNED TO STAFF OTHER -SEE MINUTES ^ 04-13-2010 aaa Page 2 The proposed Steering Committee will meet at least annually or more often as needed during the planning and implementation of an upcoming maintenance dredging event. The agency representatives serving on the Steering Committee will bring needed marine engineering and biological expertise as well as specific experience and knowledge of the Batiquitos Lagoon ecosystem. The goal is to advise and assist the State with its lagoon maintenance program. The proposed Amendment No. 1 does not create any lagoon management or financial responsibility of any kind on the five participating agencies other than those set forth in the original 1987 agreement for the California State Department of Fish and Game. Staff recommends approval of the proposed First amendment and appointment of the City Manager, or designee, to serve on the Steering Committee. ENVIRONMENTAL IMPACT: The City's participation on the proposed Steering Committee is advisory only and does not constitute a "project" within the meaning of CEQA and, therefore, is exempt from environmental review pursuant to CEQA Regulation 15378. FISCAL IMPACT: The proposed First amendment requires no cost to the City of Carlsbad other than periodic staff time for participation in the work of the Steering Committee. Under the terms of the 1987 agreement, the Port of Los Angeles ("BOARD") retained a portion of the endowment funds earmarked for long term lagoon maintenance by the California Department of Fish and Game ("CDFG"). The addition of a new Section 10 (c.2) entitled Alternative Funding Mechanism provides the opportunity for the Steering Committee to request the BOARD make available to CDFG a portion or all of the remaining endowment funds should additional maintenance funding be necessary to maintain tidal performance. Section 10 (c.2) also allows the opportunity for other public or private entities to purchase dredge sand materials with the proceeds to return to the lagoon maintenance account. This new section creates no new financial obligation upon any of the members of the Steering Committee, including the City of Carlsbad. EXHIBITS: 1. Resolution No. 2010-071 approving the first amendment to the 1987 Batiquitos Lagoon multi-agency agreement. 2. First Amendment to the 1987 Batiquitos Lagoon multi-agency agreement. 3. Proposed modifications to Section 10 of the 1987 agreement. 1 RESOLUTION NO. 2010-071 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF 3 CARLSBAD, CALIFORNIA, APPROVING THE FIRST AMENDMENT TO A MULTI-AGENCY AGREEMENT FOR THE 4 MARINE HABITAT ENHANCEMENT OF BATIQUITOS LAGOON. 5 WHEREAS, the City of Carlsbad, hereafter the "City," is a signatory to a 1987 multi- 6 agency agreement for the Batiquitos Lagoon Enhancement Project, hereafter the "Project;" and 7 WHEREAS, said Project was successfully completed in 1996; and 8 WHEREAS, the signatories to the aforementioned 1987 multi-agency agreement desire 9 to amend said agreement to advise and assist the California Department of Fish and Game with 10 planning and implementation of future maintenance dredging requirements for Batiquitos Lagoon; 11 and 12 WHEREAS, an amendment to the aforementioned agreement has been prepared; and 13 WHEREAS, said amendment does not create any financial obligation whatsoever of the 14 signatories to said agreement for participation in the advisory work intended and undertaken by 15 the amendment; and 16 WHEREAS, the City Council of the City of Carlsbad does hereby find it necessary, 7 desirable, and in the public interest to approve said amendment to the aforementioned agreement. 18 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, 19 California, as follows: 20 1. That the above recitations are true and correct. 21 2. That the First Amendment to the Multi-Agency Agreement for the Marine Habitat 22 Enhancement of Batiquitos Lagoon is hereby approved and the Mayor is authorized to execute 23 said amendment. That following the Mayor's execution of said amendment, the City Clerk is 24 directed to forward a copy of the signed amendment to the National Marine Fisheries Service, 25 attention: Robert Hoffman, 501 West Ocean Boulevard, Suite 4200, Long Beach, California, 26 90802. 27 28 1 3. That the City Council does hereby appoint the City Manager, or designee, as the 2 City's representative to the Steering Committee created by this amendment. 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 "f PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the day of , 2010, by the following vote to wit: 3 AYES: 4" 5 NOES: 6 7 9 10 ABSENT: 11 CLAUDE A. LEWIS, Mayor 12 13 ATTEST: 14 15 16 LORRAINE M. WOOD, City Clerk (SEAL) 17 18 19 20 21 22 23 24 25 26 27 28 FIRST AMENDMENT TO THE AGREEMENT AMONG THE CITY OF LOS ANGELES, THE CITY OF CARLSBAD, THE CALIFORNIA DEPARTMENT OF FISH AND GAME, THE CALIFORNIA STATE LANDS COMMISSION, THE NATIONAL MARINE FISHERIES SERVICE, AND THE UNITED STATES FISH AND WILDLIFE SERVICE/TO ESTABLISH A PROJECT FOR COMPENSATION OF MARINE HABITAT LOSSES INCURRED BY PORT DEVELOPMENT LANDFILLS WITHIN THE HARBOR DISTRICT OF THE CITY OF LOS ANGELES BY MARINE HABITAT ENHANCEMENT AT BATIQUITOS LAGOON This FIRST AMENDMENT, made the day of , 2010 is entered into by the UNITED STATES OF AMERICA, acting by and through the FISH AND WILDLIFE SERVICE, UNITED STATES DEPARTMENT OF INTERIOR ("FWS") and the NATIONAL MARINE FISHERIES SERVICE, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, UNITED STATES DEPARTMENT OF COMMERCE ("NMFS"); the STATE OF CALIFORNIA acting by and through the DEPARTMENT OF FISH AND GAME ("CDFG"), the STATE LANDS COMMISSION ("SLC"); the CITY OF CARLSBAD ("CARLSBAD"); and the CITY OF LOS ANGELES, acting by and through the BOARD OF HARBOR COMMISSIONERS ("BOARD"). I. WHEREAS, the parties entered into the "Agreement among The City of Los Angeles, CARLSBAD, CDFG, SLC, NMFS, and FWS, to Establish a Project for Compensation of Marine Habitat Losses Incurred by Port Development Landfills Within the Harbor District of the City of Los Angeles by Marine Habitat Enhancement at Batiquitos Lagoon" ("Agreement"), which Agreement was made the 14th day of October 1987; and II. Whereas, the parties desire to amend the said Agreement in certain respects. NOW, THEREFORE, the parties hereto agree as follows: SECTION 1. Amendments to the Agreement. The Agreement shall be amended as follows: (a) Replace Section 10, with the following: 10. Project Management Responsibilities. Upon Construction Certification, CDFG agrees to assume responsibility for monitoring and general maintenance of the Project. CDFG may contract out these responsibilities and, upon the approval of the parties hereto, may assign these responsibilities. A Steering Committee consisting of representatives from CARLSBAD, CDFG, SLC, NMFS, and FWS shall be established to guide the implementation of timely and efficient tidal inlet maintenance dredging (inlet dredging). The Steering Committee will meet annually at a minimum and more often as needed during the planning and implementation of a dredge event. Decisions of the Steering Committee shall be made by consensus whenever possible. Should the Steering Committee be unable to reach consensus, the decision shall be made by CDFG, as landowner and Maintenance Account holder, and/or SLC as landowner, depending on ownership affected. Transfer of inlet dredging responsibility and funds from the Maintenance Account to offset all reasonable associated costs may be made from CDFG to another entity acceptable to the Steering Committee as long as sufficient funds to accomplish inlet dredging remain in the Maintenance Account pursuant to subsections (a), (b), (c.l) and (c.2) below or through other funding sources. Should funding be insufficient for project maintenance as envisioned under this Agreement, the Steering Committee shall seek additional funding sources to maintain the Project. CARLSBAD agrees that it shall use its best efforts in enforcement of local environmental and planning ordinances with respect to property owners within its jurisdiction, and in working with other local jurisdictions, to minimize the amount of sediment transported to the Lagoon by upstream runoff within the Lagoon's watershed area. (b) Change the designation of Section 10 (c) to Section "10 (c.l)." (c) Insert a new Section 10 (c.2), which shall read as follows: (c.2) Alternative Funding Mechanism. Should the Maintenance Account described in Sections 10 (a) and 10 (b) prove to be insufficient to perform required inlet dredging as well as other maintenance activities as described in Section 10(e) for the first thirty (30) years following Construction Certification, then the Steering Committee may submit a written request to BOARD or BOARD'S designee that all, or a portion of the funds in the Investment Account be transferred to the Maintenance Account and used for the purpose of maintaining an open inlet and/or other maintenance activities. This provision does not preclude the participation of other entities in funding maintenance activities through the deposit of appropriate funds into the Maintenance Account including but not limited to the purchase of dredged sand from the Lagoon. SECTION 2. No Other Changes to the Agreement. Except as provided in Section 1 above, no other changes to the Agreement are made by this First Amendment. The Agreement, as herein amended, shall remain in full force and effect in accordance with its terms. SECTIONS. Executed Counterparts. The signature pages of this First Amendment to the Agreement are being executed in counterparts. When all parties have signed, all executed counterparts taken together shall constitute one and the same instrument. The NMFS shall be responsible for receiving and retaining the originally executed signature pages of each party, for dating this First Amendment to the Agreement as of the latest date upon which it is executed as among the signatories hereto, and for providing a copy of the dated and executed Agreement to each of the parties. IN WITNESS WHEREOF, the parties have entered into this Agreement effective as of the date first written above. [Six signature pages in executed counterparts follow] CITY OF LOS ANGELES, acting by and through its Board of Harbor Commissioners Date EXECUTIVE DIRECTOR CITY OF CARLSBAD Date MAYOR CALIFORNIA STATE LANDS COMMISSION Date EXECUTIVE OFFICER CALIFORNIA DEPT. OF FISH AND GAME Date DIRECTOR NATIONAL MARINE FISHERIES SERVICE Date REGIONAL ADMINISTRATOR U.S. FISH AND WILDLIFE SERVICE Date FIELD SUPERVISOR &t r~ 3 10. Project Management 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. Upon Construction Certification, CDFG agrees to assume responsibility for monitoring and general maintenance of the Project. CDFG may contract out these responsibilities and, upon the approval of the parties hereto, may assign these responsibilities. A Steering Committee consisting of representatives from CARLSBAD, CDFG. SLC. NMFS, and FWS shall be established to guide the implementation of timely and efficient tidal inlet maintenance dredging (inlet dredging). The Steering Committee will meet annually at a minimum and more often as needed during the planning and implementation of a dredge event. Decisions of the Steering Committee shall be made by consensus whenever possible. Should the Steering Committee be unable to reach consensus, the decision shall be made by CDFG, as landowner and Maintenance Account holder, and/or SLC as landowner, depending on ownership affected. Transfer of inlet dredging responsibility and funds from the Maintenance Account to offset all reasonable associated costs may be made from CDFG to another entity acceptable to the Steering Committee as long as sufficient funds to accomplish inlet dredging remain in the Maintenance Account pursuant to subsections (a),.(b), (c.l) and (c.2) below or through other funding sources. Should funding be insufficient for project maintenance as envisioned under this Agreement, the Steering Committee shall seek additional funding sources to maintain the Project. CARLSBAD agrees that it shall use its best efforts in enforcement of local environmental and planning ordinances with respect to property owners within its jurisdiction, and in working with other local jurisdictions, to minimize the amount of sediment transported to the Lagoon by upstream runoff within the Lagoon's watershed area. (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 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 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. 10. (c.l)ffr) 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 ba maintained for thirty (30) years following Construction Certification by BOARD to maximize the return to this Investment Account so the 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. \< 10(c.2) Alternative Funding Mechanism. Should the Maintenance Account described in Sections 10 (a) and 10 (b) prove to be insufficient to perform required inlet dredging as well as other maintenance activities as described in Section 10(e) for the first thirty (30) years following Construction Certification, then the Steering Committee may submit a written request to BOARD or BOARD'S designee that all, or a portion of the funds in the Investment Account be transferred to the Maintenance Account and used for the purpose of maintaining an open inlet and/or other maintenance activities. This provision does not preclude the participation of other entities in funding maintenance activities through the deposit of appropriate funds into the Maintenance Account including but not limited to the purchase of dredged sand from the Lagoon. (d) No further Obligations and Return of Funds. BOARD shall not be obligated to deposit any finds 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.