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HomeMy WebLinkAbout2010-04-13; City Council; 20186; Agreements for Mitigation Credit and Proposed Stream or Lake AlterationCITY OF CARLSBAD - AGENDA BILL AB* 20.186 DEPT. TRANS APPROVAL OF PURCHASE AGREEMENT AND ACKNOWLEDGMENT FOR MITIGATION CREDIT AT NORTH COUNTY HABITAT BANK AND AGREEMENT REGARDING PROPOSED STREAM OR LAKE ALTERATION WITH CALIFORNIA DEPARTMENT OF FISH AND GAME FOR EL CAMINO REAL WIDENING, PROJECT NO'S. 3957, 3929, 6302, 6303, 3643 DEPT. DIRECTOR X>jJ" CITY ATTORNEY /7^ CITY MANAGER \jj~. ^- RECOMMENDED ACTION: Adopt Resolution No. 2010-074 approving the Purchase Agreement and Acknowledgment for purchasing mitigation credits at North County Habitat Bank and the Agreement Regarding Proposed Stream or Lake Alteration with California Department of Fish and Game and authorizing the Mayor to execute such agreements for El Camino Real Widening, Project No's. 3957, 3929, 6302, 6303, 3643. ITEM EXPLANATION: The El Camino Real Street Widening Project widens El Camino Real from Chestnut Avenue south to Tamarack Avenue to full prime arterial standards on sections of the east and west side. Exhibit 1 shows the location of the project. The El Camino Real Widening will result in improvements within the right-of-way width of 126 feet that include: • 8-foot-wide bicycle lanes on both sides of the roadway. • Three southbound lanes of 12-foot width each. • Three northbound lanes of 12-foot width each. • An 18-foot-wide landscaped median island. • 5 1/2 -foot-wide sidewalks on both sides of the roadway. • 4 Vz -foot-wide native planted areas on both sides of the roadway. Other elements incorporated into the design include: • Narrowing the street widening to a width of 116 feet within the middle reach to reduce the height of a planned retaining wall on the west side of the roadway. • Improving the west side of the intersection of El Camino Real and Chestnut Avenue by removing the raised concrete channelization features ("pork chops") and adding sidewalk improvements to meet requirements of Americans with Disability Act (ADA). • Unique storm water management features such as fully vegetated median to minimize site runoff and water quality mitigation via bio-filter boxes. • Undergrounding of overhead electrical and communication cables and poles. DEPARTMENT CONTACT: Eva Plajzer 760-602-2787 eva.plaizer(5)carlsbadca.qov FOR CITY CLERKS USE ONL Y. ^/ COUNCIL ACTION: APPROVED ^& DENIED *U CONTINUED D WITHDRAWN D AMENDED D CONTINUED TO DATE SPECIFIC CONTINUED TO DATE UNKNOWN RETURNED TO STAFF OTHER -SEE MINUTES D D D D Page 2 The project impacts various habitat areas that require resource agency permits. The Department of the Army issued a Nationwide Permit Authorization under Section 404 of the Clean Water Act for this project. The California Department of Fish and Game (CDFG) issued an Agreement Regarding Proposed Stream or Lake Alteration, Notification #1600-2008-0365-R5, under Section 1602 of the California Fish and Game Code. The San Diego Regional Water Quality Control Board (SDRWQCB) issued a Clean Water Act Section 401 Water Quality Certification for this project. Two of the three permits (CDFG and SDRWQCB) require Council action. The CDFG permit requires signatory execution. The SDRWQCB permit imposes mitigation condition on the project that requires a purchase of wetlands mitigation credits at the North County Habitat Bank (NCHB). The mitigation credits required are: • Creation/Restoration of 0.03-acre of riparia (Southern willow scrub) mixed with freshwater marsh. • Creation/Restoration of 0.04-acre of riparia (CDFG wetlands). • Enhancement of 0.03-acre of riparia (CDFG riparian enhancement). Staff has negotiated a cost for these credits with NCHB at $67,500. Staff recommends that Council approve both permits and authorize the Mayor to execute the permit with CDFG and authorize the purchase of mitigation credits with NCHB. ENVIRONMENTAL IMPACT: A Mitigated Negative Declaration (MND) and Mitigation Monitoring and Reporting Program were prepared for the El Camino Real Road Widening project (CDP 07-22/HDP 07-02/SUP 07-04/HMP 07- 08). The Notice of Intent (NOI) to adopt a Mitigated Negative Declaration was published in the newspaper November 1, 2007, and sent to the County Clerk's Office for a 30-day public review (October 30, 2007 - November 30, 2007). One comment letter was received during the 30-day review period. The MND was approved by the Planning Commission on June 3, 2009, in compliance with the California Environmental Quality Act (CEQA) Guidelines Section 15074. FISCAL IMPACT: The proposed El Camino Real widening Project is a compilation of various Capital Improvement Program (CIP) projects. The CIP projects and their funding sources include: • 3957 - El Camino Real Widening Tamarack to Chestnut - Traffic Impact Fees, TransNet- Local, & TransNet-Miscellaneous • 3929 - El Camino Real Widening South of Chestnut - Traffic Impact Fees • 6303 - Traffic signal repairs at El Camino Real and Tamarack - Infrastructure Replacement • 6302 - Traffic signal repairs at El Camino Real and Chestnut - Infrastructure Replacement • 3643 - El Camino Real Median Improvements - Public Facilities Fees & Gas Tax Page 3 Table 1 below summarizes current CIP account balances for the roadway widening. TABLE 1 - EL CAMINO REAL WIDENING FINANCIAL SUMMARY TASK DESCRIPTION Design Property Acquisition Construction, Inspection, Materials Testing Environmental Mitigation & Monitoring TOTAL APPROPRIATED TO DATE $1,368,063 $200,000 $13,228,845 $72,500 $14,869,408 EXPENDITURES/ ENCUMBRANCES TO DATE $1,058,949 $0 $144,030 $2,043 $1,205,022 REMAINING BALANCES $309,114 $200,000 $13,084,815 $70,457 $13,664,386 The future project expenses are estimated in Table 2. TABLE 2 - FUTURE PROJECT EXPENSES El Camino Real Widening, Project No's, 3957, 3929, 6303, 6302, 3643 Design Property Acquisition Mitigation Credits Purchase Construction Contract (Engineer's Estimate) Construction Contingency (10%) Construction Management and Inspection (7.5%) Construction Testing (5%) TOTAL ESTIMATED FUTURE COSTS PROJECT AVAILABLE BALANCE ADDITIONAL APPROPRIATION ANTICIPATED FOR PROJECT Estimated Costs $75,000 $200,000 $67,500 $10,705,866 $1,070,587 $802,940 $535,293 $13,457,186 $13,664,386 -0- Sufficient funds exist in the accounts for the various projects associated with El Camino Real Widening to complete the purchase of the mitigation credits at North County Habitat Bank for $67,500. EXHIBITS: 1. Location Map 2. NCHB Mitigation Credit Purchase Agreement and Acknowledgment 3. CDFG Agreement Regarding Proposed Stream or Lake Alteration 4. Resolution No. 2010-074 approving the Purchase Agreement and Acknowledgment for purchasing mitigation credits at North County Habitat Bank and the Agreement Regarding Proposed Stream or Lake Alteration with California Department of Fish and Game and authorizing the Mayor to execute such agreements El Camino Real Widening, Project No's. 3957, 3929, 6302, 6303, 3643. LOCATION MAP SITE NOT JO SCALE VICINITY MAP SITE PROJECT NAME EL CAM,NO REAL WIDENING BETWEEN CHESTNUT AVENUE AND TAMARACK AVENUE PROJECT NUMBER 3957 EXHIBIT 1 DRAWN BY: SCOTT EVANS, CARLSBAD ENGINEERING DEPT. 10/22/09 H:\CAPITAL IMPROVEMENT PROGRAU\J957-ECR WIDENING TAMARACK TO CHESTNUT\PLANS le EXHIBITS\}957.DWG North County MITIGATION CREDIT PURCHASE AGREEMENT AND ACKNOWLEDGMENT THIS MITIGATION CREDIT PURCHASE AGREEMENT AND ACKNOWLEDGMENT ("Agreement") is entered into this IS day of /L^gjJ^Jl , 2010 by and between WESTMARKDEVELOPMENT CORPORATION^aNevada corporation ("Seller") and CITY OF CARLSBAD, a municipal corporation of the State of California ("Buyer"). RECITALS A. Pursuant to that certain Banking Establishment Instrument regarding the Establishment, Operation and Use of the North County Habitat Bank dated May 23, 2007 (the "BEI"), by and among Westmark Development Corporation; the California Department of Fish and Game ("CDFG"); the United States Fish and Wildlife Service ("USFWS"); the United State Environmental Protection Agency ("USEPA"), and the United States Army Corps of Engineers ("Corps") (referred to collectively hereinafter as the "Agencies"). The Agencies have acknowledged the creation of the North County Habitat Bank (the "Mitigation Bank") and the right of Seller to sell "Mitigation Credits" to mitigate for the loss of wetlands and habitat as provided therein. B. Buyer desires to mitigate the loss of certain wetland/riparian or upland habitat values on real property located in San Diego County California commonly known as El Camino Real Widening Project (the "Buyer's Property") to satisfy Buyer's obligations with respect to wetland/riparian or upland habitat on Buyer's Property and to obtain permits and approvals to develop Buyer's Property. C. Buyer has agreed to purchase from Seller, and Seller has agreed to sell to Buyer 0.03 credits of Corps/CDFG Created/Restored Wetland/Riparian Mitigation, 0.03 credits of Corps/CDFG Enhanced/Preserved Wetland/Riparian Mitigation, and 0.04 credits of CDFG Created Wetland/Riparian Mitigation as defined in the BEI (the "Conveyed Credits") from the Mitigation Bank on the terms and conditions set forth herein. The 0.10 credit represents 0.06 acre of valid U.S. Army Corps of Engineers/California Department of Fish and Game mitigation habitat, and 0.04 acre of California Department of Fish and Game only mitigation habitat, all credits being fully consistent with the BEI. North County Habitat Bank 03207629-609-JH5 Mitigation Credit Purchase Agreement Page 1 of 5 v. 100609 C AGREEMENT NOW, THEREFORE, in consideration of the agreements and acknowledgments set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller and Buyer hereby agree and acknowledge as follows: 1. Purchase Price. The purchase price for the 0.10 Wetland/Riparian Mitigation Credits shall be $67,500.00. The Purchase Price shall be paid in good funds on the Closing Date. 2. Acknowledgment of Sale. On the Closing, Seller shall deliver a fully executed original of the Acknowledgment of Sale of Mitigation Credits ("Acknowledgment"), in form and content as Exhibit A attached hereto and such other documents and instruments as may be required by any federal, state, or local governmental agency with jurisdiction over the Buyer's Property to evidence and recognize the transfer of the Conveyed Credits to Buyer. Moreover, Seller agrees that to the extent such have not been provided to Buyer at the closing, then if requested by Buyer subsequent to the closing, Seller will provide such documents and instruments as may be required by any such governmental agency to evidence and recognize the transfer of the Conveyed Credits within ten (10) days following Buyer's request. The provisions of this Paragraph 2 shall survive the closing and termination of this Agreement. 3. Closing. The closing will occur on or before April 30,2010, or such other date to which the Buyer and Seller may mutually agree in writing (the "Closing Date"). The Closing shall mean the date that the Purchase Price is delivered to Seller, or an escrow agent designated by Seller. Notwithstanding the foregoing, Buyer may accelerate the Closing Date. 4. AS-IS Sale. Buyer acknowledges and agrees that: (a) it is the Buyer's sole responsibility to obtain a determination from each federal, state, or local governmental agency with jurisdiction over the Buyer's Property, including, without limitation, the Agencies and the Regional Water Quality Control Board that the Conveyed Credits are acceptable to each such governmental agency and/or suitable for Buyer's purposes, including, without limitation, mitigation for impacts to wetland/riparian values; (b) the purchase and sale of the Conveyed Credits shall be made on an "AS IS, WHERE IS, WITH ALL FAULTS" basis as provided for in the BEI; and (c) any completed sale of any Conveyed Credits shall be final. Buyer further acknowledges and agrees that except as otherwise expressly set forth in this Agreement, neither Seller nor any of its officers, affiliates, representatives, consultants, or agents have made any representations or warranties, or have assumed any responsibility, with respect to (i) the mitigation value or mitigation requirements of the Buyer's Property; (ii) the mitigation value of the property conveyed to the Agencies in establishing the Mitigation Bank; (iii) the acceptability of the Conveyed Credits to any federal, state, or local governmental agency with jurisdiction over the Buyer's North County Habitat Bank 03207629-609-JH5 Mitigation Credit Purchase Agreement Page 2 of 5 v. 100609 Property; (iv) the suitability or adequacy of the Conveyed Credits for Buyer's purposes in purchasing such Credits; or (v) any other fact or circumstances which might affect the Mitigation Bank, the Buyer's Property, the Conveyed Credits, or Buyer's purposes in purchasing such Credits. The Seller further specifically advises Buyer to consult with the Regional Water Quality Control Board as to the acceptability of the Conveyed Credits. The Regional Water Quality Control Board is not a signatory to the BEL 5. Termination. Time is of the essence in this Agreement. In the event the closing does not occur by the Closing Date, Seller, at its election, and in its sole and absolute discretion, by written notice to Buyer, may terminate this Agreement and neither party shall have any further obligations hereunder except as provided in Paragraph 6 below. 6. Brokers. Buyer represents to the Seller that it has not had any other contract, agreement or dealings regarding the Conveyed Credits with, nor any communication in connection with the subject matter of this transaction through, any consultant, broker, agent, finder or other person who can claim a right to a consultant fee, commission or finder's fee from the Seller in connection with the sale contemplated herein. In the event that a consultant, broker or finder makes a claim for a consultant fee or commission or finder's fee based upon any such contract, agreement, dealings or communication, the party through whom such claim is made shall be solely responsible for and shall indemnify, defend, and hold harmless the other party from and against said commission or fee and all costs and expenses (including without limitation reasonable attorneys' fees) incurred by the other party in defending against such claim. The provisions of this Paragraph 6 shall survive the termination of this Agreement. 7. Integration. Buyer and Seller agree that all negotiations, discussions, understandings and agreements heretofore made between them or their respective agents or representatives are merged in this Agreement and the Exhibit attached hereto, and this written Agreement alone fully and completely expresses their agreement with respect to the subject matter hereof and supersedes all prior agreements and understandings between the parties relating to the subject matter of this Agreement. Buyer and Seller further agree that Buyer has no responsibilities or obligations whatsoever regarding the Conveyed Credits or the BEI except as are expressly stated in this Agreement. 8. Notices. All deposits and any notice required or permitted to be made or given under this Agreement shall be made and delivered to the parties at the addresses set forth below each party's respective signature. All notices shall be in writing and shall be deemed to have been given when delivered by courier, when transmitted by facsimile (upon confirmation of successfully completed transmission), or upon the expiration of two (2) business days after the date of deposit of such notice in the United States mail, registered or certified mail, postage prepaid. North County Habitat Bank 03207629-609-JH5 Mitigation Credit Purchase Agreement Page 3 of 5 v. 100609 7 9. Attorneys' Fees. This Agreement shall be governed and construed in accordance with the laws of the State of California and interpreted as if prepared by both parties hereto. In the event a dispute arises concerning the meaning or interpretation of any provision of this Agreement, or in the event of any litigation arising out of or related to this Agreement, the party not prevailing in such dispute or litigation shall pay any and all costs and expenses incurred by the other party in establishing or defending its rights hereunder, including, without limitation, court costs, expert witness fees, and reasonable attorneys' fees. 10. Limited Representations and Warranties. Seller is a corporation duly formed, presently existing and in good standing under the laws of the State of Nevada, is qualified to transact business in the State of California, and has the power and authority to own, and does own, the Mitigation Credits, and the power and authority to consummate the sale of Conveyed Credits as contemplated by this Agreement, and the person executing this Agreement has the full authority to bind Seller. This Agreement and all instruments, including assignment and/or conveyance documents to be executed by Seller in connection herewith are or when delivered to Buyer will be duly authorized, executed and delivered by Seller and will be valid, binding and enforceable obligations of Seller. Neither this Agreement nor any instrument, including assignment and/or conveyance documents to be executed by Seller in connection herewith does now or will hereafter constitute a breach or default or invalidate, make inoperative or interfere with any contract, agreement, right or interest affecting or relating in any manner to the Conveyed Credits. The Conveyed Credits shall be assigned/conveyed to Buyer at the closing free and clear of all liens or other encumbrances of any type, monetary or non-monetary. 11. Counterparts. This Agreement may be executed and delivered in any number of identical counterparts, each of which so executed and delivered shall be deemed to be an original and all of which shall constitute one and the same instrument. North County Habitat Bank Mitigation Credit Purchase Agreement Page 4 of 5 03207629-609-JH5 v.l 00609 n/-*• WHEREUPON, this Agreement has been executed as of the date first-above written. SELLER: WE corporation ELOPMENT CORPORATION, a Nevada Its: President Westmark Development Corporation c/o McCollum Associates 10196 Clover Ranch Dr Sacramento, CA 95829 Telephone: (916)688-2040 Fax: (916)688-7436 Email: mccollum@mccollum.com BUYER: CITY OF CARLSBAD, a municipal corporation^the State of Califor Name? Claude A. "Md" Lewis Its: Mayor Attention: Mr. David Hauser Deputy City Engineer Engineering Department City of Carlsbad 1635 Faraday Avenue Carlsbad CA 92008 Telephone: (760)602-2739 Fax: (760)602-8562 Email: dhaus@ci.carlsbad.ca.us USACOE Permit: N/A CDFG Agreement 1600-2008-0365-R5 RWQCB Permit 08C-074 North County Habitat Bank Mitigation Credit Purchase Agreement Page 5 of 5 03207629-609-JH5 v.l 00609 CALIFORNIA DEPARTMENT OF FISH AND GAME South Coast Region 4949 Viewridge Avenue San Diego, CA 92123 Notification #1600-2008-0365-R5 AGREEMENT REGARDING PROPOSED STREAM OR LAKE ALTERATION THIS AGREEMENT, entered into between the California Department of Fish and Game, hereinafter called the Department, and the City of Carlsbad (Point of Contact: Eva Plajzer), 1635 Faraday Avenue, Carlsbad CA 92008 (760) 479-4292, hereinafter called the Applicant, is as follows. WHEREAS, pursuant to Section 1602 of the California Fish and Game Code, the Applicant, on the 22nd day of April, 2009, notified the Department that they intend to divert or obstruct the natural flow of, or change the bed, channel, or bank of, or use material from two unnamed drainages tributary to Agua Hedionda Lagoon to the Pacific Ocean (USGS Map: San Luis Rey; Township 12 South, Range 4 West). WHEREAS, the Department, based on information received by the Applicant, has determined that such operations may substantially adversely affect those existing fish and wildlife resources within the unnamed streambeds tributary to, the project site, and the vicinity of the project site, specifically identified as follows: Amphibians: western spadefoot fSpea hammondi) Reptiles: orange-throated whiptail (Cnemidophorus hyperythrus beldingi); Coastal western whiptail (Cnemidophorus tigris stejnegeri); Coastal rosy boa (Charina trivirgata); Northern red-diamond rattlesnake (Crotalus ruber ruber); San Diego ringneck snake (Diadonphis punctatus); Western pond turtle (Actinemys marmorata pallida); Birds: Cooper's hawk (Accipeter cooperi); coastal California gnatcatcher (Polioptila californica californica)', California horned lark (Eremophila alpestris)', white-tailed kite (Elanus leucurus)', yellow-breasted chat (Icteria wrens); yellow- rumped warbler (Dendroica petechia brewsteri; Least Bell's Vireo (Vireo belli! pusillus)\ Mammals: Dulzura California pocket mouse (Chaetopidus californicus femoralis); California pocket mouse (Chaetodipus fallax fallax); Mexican long-tongued bat (Choeronycteris mexicana); San Diego desert woodrat (Neotoma lepida intermedia)', and all other aquatic and wildlife resources in the area, including the riparian vegetation which provides habitat for such species in the area. These resources are further detailed and more particularly described in the reports entitled "Final Initial Study and Mitigated Negative Declaration: El Camino Real Widening Project, Tamarack Avenue to Chestnut Avenue," SCH No. 2007101141, dated December 2008, prepared by DUDEK, for the City of Carlsbad; Habitat Management Plan for Natural Communities in the City of Carlsbad (HMP); and the "Biological Resources Technical Report for the El Camino Real Road Widening, Carlsbad, California" dated September, 2007, prepared by DUDEK. THEREFORE, the Department hereby proposes measures to protect fish and wildlife resources during the Applicant's work. The Applicant hereby agrees to accept and implement the Streambed Alteration Agreement for El Camino Real Widening; Tamarack Avenue to Chestnut Avenue SAA 1600-2008-0365-R5 Page 2 of 8 following measures/conditions as part of the proposed work. The following provisions constitute the limit of activities agreed to and resolved by this Agreement. The signing of this Agreement does not imply that the Applicant is precluded from doing other activities subject to Fish and Game Code Section 1600 et seq. at the site. However, activities not specifically agreed to and resolved by this Agreement shall be subject to separate notification pursuant to Fish and Game Code Sections 1600 et seq. If the Applicant's work changes from that stated in the notification specified above, this Agreement is no longer valid and a new notification shall be submitted to the Department. Failure to comply with the provisions of this Agreement and with other pertinent code sections, including but not limited to Fish and Game Code Sections 5650, 5652, 5901, 5931, 5937, and 5948, may result in prosecution. Nothing in this Agreement authorizes the Applicant to trespass on any land or property, nor does it relieve the Applicant of responsibility for compliance with applicable federal, state, or local laws or ordinances. A consummated Agreement does not constitute the Department's endorsement of the proposed operation, or assure the Department's concurrence with permits required from other agencies. Term and Effective Date This Agreement becomes effective the date of Department's signature and the construction/impacts portion terminates on February 1, 2015. This Agreement shall remain in effect until the Department provides written confirmation that the mitigation requirements have been met. Any amendment shall be by written mutual consent of the Applicant and the Department, and shall be in compliance with the Department's regulations, policies, and procedures in effect as of the date of such amendment. Extension Pursuant to Section 1600 et seq., the Applicant may request one extension of the Agreement; the Applicant shall request the extension of this Agreement prior to its termination. The one extension may be granted for up to five years from the date of termination of the Agreement and is subject to Departmental approval. The extension request and fees shall be submitted to the Department's South Coast Region at the above address, ATTN: Streambed Alteration Program - SAA #1600-2008-0365-R5. If the Applicant fails to request the extension prior to the Agreement's termination, then the Applicant shall submit a new notification with fees and required information to the Department. Any construction/impacts that occur under an expired Agreement are a violation of Fish and Game Code 1600 et seq. Project Location The El Camino Real Widening Project (Project) area is located in the northeastern part of the City of Carlsbad, California. The project extends approximately 4,600 feet or 0.87 miles from Tamarack Avenue in the southeast to Chestnut Avenue in the north. The Project lies within the Habitat Management Plan for Natural Communities in the City of Carlsbad (HMP) plan area. Streambed Alteration Agreement for El Camino Real Widening; Tamarack Avenue to Chestnut Avenue SAA 1600-2008-0365-R5 Page 3 of 8 Project Description The Applicant proposes to alter the stream/lake to widen the section of El Camino Real from Tamarack Avenue north to Chestnut Avenue to its full width of six travel lanes. The Project will widen the roadway to a total width of 126 feet including 8-foot wide bike lanes on both sides of the street, three southbound lanes of 12-foot width each, an 18-foot wide landscaped median Island, and three northbound lanes of 12-foot width each at the southern and northern ends of the Project. In the middle section of the roadway, the roadway would transition between the previously discussed typical section to a modified width of 116 feet including a 6 1/2 foot bike lane on the west side of the roadway, three southbound lanes of 12 feet width each, a 14-foot- wide landscaped median island, three northbound lanes of 11 V-i feet width each, and a five-foot bike lane on the east side of the roadway. Parkways consisting of 5 % feet of sidewalk and 4 1/2 feet of native vegetation (including bio-swale) would be provided on each side of the roadway resulting in a right-of-way width of 116 feet in this reach of the roadway. The Project proposes to keep the existing vertical profile of the road. The Project also includes improvements to the intersection of El Camino Real and Chestnut Avenue; replacement or improvement of storm drains; placement of erosion protection and/or construction of check dams; construction of 12- to 24-inch-deep brow ditches along the west side of El Camino Real; installation of lighting at 300-foot intervals along both sides of El Camino Real; construction of retaining walls; and relocation of an existing bus stop. Existing overhead power lines along the west side of El Camino Real may be undergrounded. Impacts 1. The Applicant shall not permanently impact more than 0.07 acre of unnamed tributaries to Agua Hedionda. Compensatory Mitigation 2. Mitigation will be conducted through the purchase of mitigation credits from the North County Habitat Bank (NCHB) as follows: a. The Applicant shall mitigate for permanent impacts to 0.03 acre of ephemeral and intermittent unvegetated stream channels through: a) creation/restoration of 0.03-acre of southern willow scrub mixed with freshwater marsh (i.e., 0.03-acre USAGE wetland creation/restoration credits) and; b) 0.03-acre riparian enhancement (i.e., 0.03-acre CDFG riparian enhancement credits); b. The Applicant shall mitigate for permanent impacts to 0.04 acre of southern willow scrub (including disturbed) through creation/restoration of 0.04-acre southern willow scrub (i.e., 0.04-acre of wetland CDFG creation/restoration credits). 3. The Applicant shall mitigate at a minimum 5:1 ratio for impacts beyond those authorized in this Agreement. In the event that additional mitigation is required, the type of mitigation shall be determined by the Department and may include creation, restoration, or enhancement. Streambed Alteration Agreement for El Camino Real Widening; Tamarack Avenue to Chestnut Avenue SAA 1600-2008-0365-R5 Page 4 of 8 Additional Conditions: General 4. The agreed work includes activities associated with the Project Location and Project Description that is provided above. Specific work areas and mitigation measures are described on/in the plans and documents submitted by the Applicant, including the Notification Package for the El Camino Real Road Widening Project, Storm Water Pollution Prevention Plan for El Camino Real Widening and the Water Quality Technical Report for El Camino Real Widening Project, prepared by Bureau Beritas North America, Inc., dated December 9, 2009, and shall be implemented as proposed unless directed differently by this Agreement. Development and supporting infrastructure shall be confined to the project footprint. 5. The Applicant shall provide a copy of this Agreement to all contractors, subcontractors, and the Applicant's project supervisors. Copies of the Agreement shall be readily available at work sites at all times during periods of active work and must be presented to any Department personnel, or personnel from another agency, upon demand. 6. A pre-construction meeting/briefing shall be held involving all the contractors and subcontractors, concerning the conditions in this Agreement. 7. The Applicant shall notify the Department, in writing, at least five (5) days prior to initiation of construction (project) activities and at least five (5) days prior to completion of construction (project) activities. Notification shall be sent to the South Coast Region office at the above address, Attn: Streambed, SAA#1600-2008-0365-R5. 8. In the event that the project scope, nature, or environmental impact is altered by subsequent permit conditions by a local, state or federal regulatory authority, the Applicant shall either submit an Amendment request or re-Notify the Department of any project modification which conflicts with current conditions or project description. Resource Protection 9. The Applicant shall not remove vegetation within the stream from February 15 to September 15 to avoid nesting birds. However, the Applicant may remove vegetation during this time period if a Department approved biologist conducts a survey for nesting birds within three days prior to vegetation removal, and ensures no nesting birds shall be impacted by the vegetation removal activity. If an active nest is found, a minimum of a 100-foot activity exclusion zone (buffer) will be established and maintained during the period the nest is active. Applicant may consult with the Department to discuss a reduced buffer size if species sensitivity and localized conditions (e.g., width and type of screening vegetation between the nest and the proposed activity, terrain, existing level of human activity within the buffer and in the surrounding area) warrant a reduced buffer. If the nest is of a bird species is in the orders of Falconiformes or Strigiformes, the exclusion zone will be 500 feet. To avoid a violation of California Fish and Game Code Section 3503.5, the Applicant shall have a Department approved biologist inspect vegetation prior to removal or modification for active nesting of species in the orders of Falconiformes and Strigiformes during all periods these species are documented nesting in southern California. The Applicant Streambed Alteration Agreement for El Camino Real Widening; Tamarack Avenue to Chestnut Avenue SAA 1600-2008-0365-R5 Page 5 of 8 shall submit the mapped survey results to the Department for review and approval prior to vegetation removal or modification to ensure full avoidance measures are in place. 10. Any construction corridor shall be established in such a manner that it avoids disturbance to woody vegetation to the greatest extent possible. Flagging or stakes shall be used to establish the construction corridor. Vegetation shall not be removed or intentionally damaged beyond the construction corridor. Vegetation within this construction corridor which proves to be an obstruction to normal operations but does not need to be removed shall be trimmed to near ground level. 11. No equipment shall be operated within the drip line of oaks. Protective fencing shall be placed around the drip lines of oaks to prevent compaction of the root zone. 12. The Applicant shall use temporary construction fencing to identify the agreed limits of disturbance within the stream and adjacent habitat, and shall have a Department approved biologist oversee fence installation. 13. If a stream's low flow channel, bed or banks have been altered, other than those areas identified as permanent impact, these shall be returned as nearly as possible to their original configuration and width, without creating future erosion problems. 14. This SAA does not authorize the take of any candidate species or species listed as threatened or endangered under the California Endangered Species Act ("CESA") (Fish & Game Code, §2050 et seq.) unless as otherwise specified under the City of Carlsbad's Multiple Habitat Conservation Plan. If the proposed work could affect any candidate species, or threatened and endangered species, the Applicant shall contact the Department and shall not commence the work without the Department's prior approval. 15. Applicant shall implement its Stormwater Management Plan Best Management Practices (BMPs) during construction. Equipment and Access 16. Staging/storage areas for equipment and materials shall be located outside of CDFG jurisdictional habitat and within the impact areas described in the Project Description, including the development, roads, and other infrastructure. 17. Any equipment or vehicles driven and/or operated within or adjacent to a stream shall be checked and maintained daily to prevent leaks. 18. The clean-up of all spills shall begin immediately upon observation of the spill, and immediately thereafter the Department shall be notified of the spill and any clean-up procedures recommended by the Department shall be followed by the person or persons completing the cleanup. Streambed Alteration Agreement for El Camino Real Widening; Tamarack Avenue to Chestnut Avenue SAA 1600-2008-0365-R5 Page 6 of 8 Fill and Spoils 19. Spoil sites shall not be located within a stream, where spoil could be washed back into a stream, or where it could cover aquatic or riparian vegetation. 20. Fill materials may come from on-site sources or be imported. All fill material shall be free from contaminates such as trash, debris, or any other material deleterious to aquatic life or water quality. All fill shall be heavily compacted. 21. No fill may be placed in areas of a streambed that are not included in the footprint of the project. If any streambed becomes impacted outside the footprint of the project the Applicant must notify the Department and return the impacted streambed to its naturally occurring condition. Mitigation and conditions may need to be revised if any impacts occur to streambed not included in the original footprint of the project. Structures 22. Storm drain lines/culverts shall be adequately sized to carry peak storm flows for the drainage to the outfall structure(s). The storm drain lines/culverts and the outfall structure(s) shall be properly aligned within the stream and otherwise engineered, installed and maintained, to assure resistance to washout, and to erosion of the stream bed, stream banks and/or fill. Water velocity shall be dissipated at the outfall, to reduce erosion. 23. Areas with disturbed soils upslope from Department jurisdictional habitat shall be stabilized to reduce erosion potential. Planting, seeding, and mulching of the disturbed soils is conditionally acceptable. Where suitable vegetation cannot reasonably be expected to become established, non-erodible materials shall be used for such stabilization. Any installation of non-erodible materials not described in the original project description shall be coordinated with the Department. Pollution, Litter, and Cleanup 24. No debris, soil, silt, sand, bark, slash, sawdust, rubbish, construction waste, cement or concrete or washings thereof, asphalt, paint, oil or other petroleum products or any other substances which could be hazardous to aquatic life, or other organic or earthen material from any construction, or other associated project related activity shall be allowed to contaminate the soil and/or enter into or be placed where it may be washed by rainfall or runoff into, streams or lakes. Any of these materials, placed within or where they may enter a stream or lake shall be removed immediately upon observation of their presence. When operations are completed, any excess materials or debris shall be removed from the work area. No rubbish shall be deposited within 150 feet of the high water mark of any stream. 25. All litter and pollution laws shall be followed. Fully covered trash receptacles with secure lids (wildlife proof) shall be installed and used in all work areas that may contain food, food scraps, food wrappers, beverage containers, and other miscellaneous trash. 26. No equipment maintenance shall be done within or near any stream where petroleum products or other pollutants from the equipment may enter these areas under any flow. 27. Stationary equipment such as motors, pumps, generators, and welders, located within or adjacent to the stream shall be positioned over drip pans. Streambed Alteration Agreement for El Camino Real Widening; Tamarack Avenue to Chestnut Avenue SAA 1600-2008-0365-R5 Page 7 of 8 Administrative 28. The Department reserves the right to suspend or cancel this Agreement under one or more of, but not limited to, the following circumstances: a. the Department determines that the information provided by the Applicant in support of the Notification/Agreement is incomplete or inaccurate; b. the Department obtains new information that was not known to it in preparing the terms and conditions of the Agreement; c. the project or project activities as described in the notification/Agreement change; and/or d. the conditions affecting fish and wildlife resources change or the Department determines that project activities will result in a substantial adverse effect on the environment. 29. Before any suspension or cancellation of the Agreement, the Department will notify the Applicant in writing of the circumstances which the Department believes warrant suspension or cancellation. The Applicant will have seven (7) working days from the date of receipt of the Department's notification to respond in writing to the circumstances described in the notification. Upon receipt of the Department's notification, the Applicant shall cease all project activities specified in the notification and shall not reinitiate them until the Department informs the Applicant in writing that methods and/or measures have been identified, agreed upon, and shall be implemented to adequately address the reasons for the Department's notification. 30. All provisions of this agreement remain in force throughout the term of this Agreement. Any provisions of this Agreement may be amended at any time by mutual agreement of the parties. Any amendments to this Agreement shall be made in a separate writing, signed by the parties, and attached to this Agreement. Any approved amendments shall become part of this Agreement. 31. The Applicant agrees that it shall be responsible for any violations of this Agreement, whether committed by the Applicant or any person acting on behalf of the Applicant, including its agents, officers, and employees, representatives, or contractors and subcontractors, to complete the Project Activity authorized by this Agreement. This Agreement does not constitute the Department's endorsement of the authorized Project Activity. 32. It is understood the Department has entered into this Agreement for purposes of establishing protective features for fish and wildlife. The decision to proceed with the project is the sole responsibility of the Applicant, and is not required by this Agreement. It is further agreed that all liability and/or incurred cost related to or arising from the Applicant's project and the implementation of the fish and wildlife protective conditions of this Agreement remain the sole responsibility of the Applicant. The Applicant agrees to hold harmless the State of California and the Department against any related claim made by any party or parties for personal injury or any other damages. 33. The Department reserves the right to enter the project site at any time to ensure compliance with terms/conditions of this Agreement. 34. The Department reserves the right to cancel this Agreement, after giving notice to the Applicant, if the Department determines that the Applicant has breached any of the terms or conditions of the Agreement. Streambed Alteration Agreement for El Camno Real Wlden~ng, Tamarack Avenue to Chestnut Avenue SAA 1600-2008-0365-R5 Page 8 of 8 CONCURRENCE 7- Claude A. "Bud" Lewis / Mayor Stephen M. Juarez Environmental Program Manager South Coast Region - .> > This agreement was prepared by Darren Bradford, Environmental Scientist 1 RESOLUTION NO. 2010-074 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF 3 CARLSBAD, CALIFORNIA, APPROVAL OF PURCHASE AGREEMENT AND ACKNOWLEDGMENT FOR MITIGATION 4 CREDIT AT NORTH COUNTY HABITAT BANK AND AGREEMENT REGARDING PROPOSED STREAM OR LAKE 5 ALTERATION WITH CALIFORNIA DEPARTMENT OF FISH AND GAME FOR EL CAMINO REAL WIDENING, PROJECT NO'S. 6 3957. 3929. 6302. 6303. 3643. 7 WHEREAS, the City Council of the City of Carlsbad, California, has determined it 8 necessary, desirable, and in the public interest to construct the El Camino Real Widening, Project9 No's. 3957, 3929, 6302, 6303, 3643; and 10 WHEREAS, the Mitigated Negative Declaration and City issued permits (CDP 07-22,11 HDP 07-02, SUP 07-04, HMP 07-08) have been approved by the Planning Commission and are on file with the Planning Department; and I O WHEREAS, conditions of the San Diego Regional Water Quality Control Board (SDRWQCB) permit require purchase of mitigation credits at the North County Habitat Bank15 .. (NCHB);andID WHEREAS, the California Department of Fish and Game (CDFG) issued an Agreement .0 Regarding Proposed Stream or Lake Alternation, Notification #1600-2008-0365-R5, that require1o Council action; andi y 2Q WHEREAS, there are sufficient funds in the project accounts 3957, 3929, 6302, 6303, 21 and 3643 to purchase the credits and complete the project. 22 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, 23 California, as follows: 24 1. That the above recitations are true and correct. 25 2. That the Mayor is hereby authorized to execute the Agreement Regarding 26 Proposed Stream or Lake Alteration, Notification #1600-2008-0365-R5, with CDFG. 27 3. That the Mayor is hereby authorized to execute the Mitigation Credit Purchase 28 Agreement and Acknowledgement with North County Habitat Bank. 1 4. The Finance Director is authorized to issue a check to North County Habitat Bank 2 $67,500.00 for the credits. 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 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 PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 13th day of April, 2010, by the following vote to wit: AYES: Council Members Lewis, Kulchin, Hall, Packard and Blackburn. NOES: None. ABSENT: None. ATTEST: D, City Clerk (J -xuTfi