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Home My WebLink AboutNature's Image Inc; 2015-03-25; TRAN1192AMENDMENT NO. 4 TO AGREEMENT FOR MAINTENANCE SERVICES NATURES IMAGE, INC. TRANI 192 Tj Amendment No. 4 is entered into and effective as of the ~day of r \,A lc-{..-, , 2018, amending the agreement dated March 25, 2015 (the "Agreement") by and between the City of Carlsbad, a municipal corporation, ("City"), and Nature's Image, Inc., a California corporation, ("Contractor") (collectively, the "Parties") for environmental maintenance services for the Buena Vista Creek Channel Maintenance Assessment District located between Jefferson Street and South Vista Way Bridges. RECITALS A. On August 3, 2015, the Parties executed Amendment No. 1 to the Agreement to increase the number of site visits in Year 1 and 2 and to change the payment of items from lump sum to time and materials based on the actual services performed during each visit and include routine monthly maintenance of the two storm drain outfalls; and B. On August 15, 2016, the Parties executed Amendment No. 2 to the Agreement to include a biological monitor to be present during monthly maintenance and operations at the storm drain outfalls to perform monitoring and reporting as required by the project permits and the Habitat Management Plan; and C. On March 8, 2017, the Parties executed Amendment No. 3 to the Agreement to add prevailing wage language to the agreement in accordance with the Director of Industrial Relations (DIR) requirements; and E. The Parties desire to amend the contract to allow for an additional raptor survey for each maintenance event as required by the project permits; and D. The Parties have negotiated and agreed to a supplemental scope of work and fee schedule, which is attached to and incorporated by this reference as Exhibit "A", Scope of Services and Fee. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. In addition to those services contained in the Agreement, as may have been amended from time to time, Contractor will provide those services described in Exhibit "A". With this Amendment, the total Agreement amount shall not exceed four hundred eighty-two thousand nine hundred fifty two dollars and thirty cents ($482,952.30). 2. City will pay Contractor for all work associated with those services described in Exhibit "A" on a time and materials basis not-to-exceed seven thousand three hundred eighty three dollars ($7,383). Contractor will provide City, on a monthly basis, copies of invoices sufficiently detailed to include hours performed, hourly rates, and related activities and costs for approval by City. 3. Contractor will complete all work described in Exhibit "A" by March 23, 2020. 4. All other provisions of the Agreement, as may have been amended from time to City Attorney Approved Version 9/27 /16 TRANI 192 time, will remain in full force and effect. 5. All requisite insurance policies to be maintained by Contractor pursuant to the Agreement, as may have been amended from time to time, will include coverage for this Amendment. 6. The individuals executing this Amendment and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Amendment. CONTRACTOR NATURE'S IMAGE, INC., a California e) President / Hicbclle Cqr-ua nC\ (print name/title) Secretary (print name/title) CITY OF CARLSBAD, a municipal corporation of the State of California ATTEST: If required by City, proper notarial acknowledgment of execution by Contractor must be attached. If a corporation, Agreement must be signed by one corporate officer from each of the following two groups: Group A Chairman, President, or Vice-President Group B Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: CELIA A. BREWER, City Attorney BY: -~-=-=---------.....=..._._.....__ Deputy City Attorney City Attorney Approved Version 9/27/16 2 ACKNOWLEDGMENT A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California) County of Orange) On June 8, 2018 before me, Sara Koenig, Notary Public, personally appeared Michelle Caruana who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that she executed the same in her authorized capacity, and that by her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. ~-Signature~ ** -(Seal) Notary for signature as President*** ACKNOWLEDGMENT A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California ) County of Orange) SARA KOENIG ' COMM ... 2072498 0 NOTARY PUBLIC.CALIFORNIA -i ORANGE COUNTY Cal My Term Exp. June 24, 2018 On June 8, 2018 before me, Sara Koenig, Notary Public, personally appeared Michelle Caruana who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that she executed the same in her authorized capacity, and that by her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature ~---~~ .:: ota,y fo, sigmtture as Secreta,y'" SARA KOENIG ~ COMM ... 2072498 o NOTARY PUBLIC-CALIFORNIA -i ORANGE COUNTY Cal My Term Exp. June 24, 2018 Exhibit A • ~ natures image ATTN: Danny Zimny 1635 Faraday Ave. Carlsbad, CA 92008-7314 20361 Hermana Circle Lake Forest, CA 92630 April 9, 2018 TRAN1192 RE: Buena Vista Creek Channel Maintenance-Change Order Proposal for Additional Raptor Surveys Performed Within 1-week of any Vegetation Clearing During Nesting Season. Per 2.20 Raptor Avoidance on page 7 of the CDFW permit. NI Job#: 2691 CHANGE ORDER Task Unit Nesting Bird Survey T&M Budget Total $7,383.00 Inclusions: Exclusions: Additional mobilization, bonds, certified payroll, chemical applications, clearing & grubbing, concrete work, electrical work, erosion control or repair of erosion control, work above 6 feet and fall protection, fencing removal, repair, materials and installation, fertilizer, irrigation, irrigation repairs or guarantee, grading, jute netting, coir fabric, straw wattles, BMP installation and/or maintenance, photos, plant purchase, plant guarantee, plant protection, plant establishment, site maintenance, meetings, mulch, mycorrhizae inoculum, permits, prevailing wage rates, exotic species removals, native species removals, reports, rip rap, ripping, retention, reseeding, seed germination guarantee, safety fencing, ESA fencing, silt fencing, site protection, site clearing, soil preparation, compaction, decompaction, soil amendments, soil scarifying, pesticide and herbicide spraying, spraying retreatments, straw blowing, surveying, flagging of boundaries, soil samples or testing, traffic control, cost of water, water source, water meter, watering, weeding, repair due to acts of God, war, vandalism or neglecUdamage by Owner or others, waivers of subrogation and additional insurance endorsements. Any items not specifically mentioned in the inclusions above. Notes: Assume easy vehicle/equipment access. Natures Image, Inc. is a non-union company. Items not specified in this change order are neither implied nor included. This change order shall become an addendum to any contract with the terms set forth in this addendum which shall supersede any conflicting terms in any other contract documents. Please sign this and return document to Natures Image, Inc. Change Order Price: Good for 30 days Thank you for the opportunity to bid. Sincerely, NATURES IMAGE, INC. Daniel Slinger Estimator 3 Terms: Net 30 days Client Signature: ___________ _ Date: ___________ _ ACORD9 CERTIFICATE OF LIABILITY INSURANCE I DATE (MM/DD/YYYY) ~ 5/24/2018 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER ~2:i~cT Teresa Shen Milestone Risk Management & Insurance rA~~NJo "•"· 949-852-0909 I FAX License No. 0B72766 (A/C Nol: 949-852-1131 8 Corporate Park, Suite 130 ~~lJ~ss: tshen@milestonepromise.com Irvine CA 92606 INSURER(S) AFFORDING COVERAGE NAIC# INSURER A: Travelers Indemnity Company of CT 25682 INSURED 7892 INSURER B : Travelers Property Casualty of America 25674 Natures Image, Inc. INSURER c : Underwriters at Lloyd's London 15792 20361 Hermana Circle Lake Forest CA 92630 INSURER D : Zenith Insurance Company 13269 INSURERE: INSURER F: COVERAGES CERTIFICATE NUMBER· 1444997042 REVISION NUMBER· THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR ADDL SUBR POLICY EFF POLICY EXP LTR TYPE OF INSURANCE '""n lwvn POLICY NUMBER IMM/DD/YYYYl IMM/DD/YYYYl LIMITS A X COMMERCIAL GENERAL LIABILITY 6308616N454 7/1/2017 7/1/2018 EACH OCCURRENCE $1.000.000 -D CLAIMS-MADE 0 OCCUR DAMAGE TO RENTED PREMISES (Ea occurrence l $ 300.000 X Contractual Loab MED EXP (Any one person) $ 10.000 X Pollution Liab. PERSONAL & ADV INJURY $1,000.000 - GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ 2.000.000 Fl 0PRO-DLOC PRODUCTS -COMP/OP AGG $2,000.000 POLICY JECT OTHER: Deductible $ 5.000 B AUTOMOBILE LIABILITY 8105683B068 7/1/2017 7/1/2018 COMBINED SINGLE LIMIT $1.000.000 (Ea accident) ~ X ANY AUTO BODILY INJURY (Per person) $ ~ ~ OWNED SCHEDULED BODILY INJURY (Per accident) $ -AUTOS ONLY ~ AUTOS X HIRED X NON-OWNED PROPERTY DAMAGE $ AUTOS ONLY AUTOS ONLY /Per accident\ X Pollution $ B X UMBRELLA LIAB M OCCUR EX6J74672 7/1/2017 7/1/2018 EACH OCCURRENCE $ 10.000.000 - EXCESS LIAB CLAIMS-MADE AGGREGATE $ 10.000.000 DED I X I RETENTION$ n $ D WORKERS COMPENSATION 2127249503 7/1/2017 7/1/2018 X I ~~ITUTE I I OTH-ER AND EMPLOYERS' LIABILITY Y/N ANYPROPRIETOR/PARTNER/EXECUTIVE D N/A E.L. EACH ACCIDENT $1,000.000 OFFICER/MEMBER EXCLUDED? (Mandatory in NH) E.L. DISEASE -EA EMPLOYEE $ 1.000,000 If yes, describe under DESCRIPTION OF OPERATIONS below E.L. DISEASE -POLICY LIMIT $ 1.000.000 C Professional Liability PSG05265732 7/1/2017 7/1/2018 Limit/ Aggregate $1M/$2M Deductible $5,000 DESCRIPTION OF OPERATIONS/ LOCATIONS/ VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) RE: Agreement No. TRAN 1192 -Maintenance Services for Buena Vista Creek. The City of Carlsbad is named as an additional insured per the attached endorsement. WC waiver of subrogation applies per the attached endorsement. *30 days written notice of cancellation to the certificate holder/10 days notice for nonpayment of premium . . CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN City of Carlsbad/CMWD ACCORDANCE WITH THE POLICY PROVISIONS. c/o EXIGIS Insurance Compliance Services PO Box 4668 -ECM #35050 AUTHORIZED REPRESENTATIVE New York NY 10163-4668 -C(/1,r, I © 1988-2015 ACORD CORPORATION. All rights reserved. ACORD 25 (2016/03) The ACORD name and logo are registered marks of ACORD POLICY NO. 6308616N454 COMMERCIAL GENERAL LIABILITY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY BLANKET ADDITIONAL INSURED (CONTRACTORS) This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART 1. WHO IS AN INSURED -(Section II) is amended to include any person or organization that you agree in a "written contract requiring insurance" to include as an additional insured on this Cover- age Part, but: a) Only with respect to liability for "bodily injury", "property damage" or "personal injury"; and b) If, and only to the extent that, the injury or damage is caused by acts or omissions of you or your subcontractor in the performance of "your work" to which the "written contract requiring insurance" applies. The person or organization does not qualify as an additional insured with respect to the independent acts or omissions of such person or organization. 2. The insurance provided to the additional insured by this endorsement is limited as follows: a) In the event that the Limits of Insurance of this Coverage Part shown in the Declarations exceed the limits of liability required by the "written contract requiring insurance", the in- surance provided to the additional insured shall be limited to the limits of liability re- quired by that "written contract requiring in- surance". This endorsement shall not in- crease the limits of insurance described in Section Ill -Limits Of Insurance. b) The insurance provided to the additional in- sured does not apply to "bodily injury", "prop- erty damage" or "personal injury" arising out of the rendering of, or failure to render, any professional architectural, engineering or sur- veying services, including: i. The preparing, approving, or failing to prepare or approve, maps, shop draw- ings, opinions, reports, surveys, field or- ders or change orders, or the preparing, approving, or failing to prepare or ap- prove, drawings and specifications; and ii. Supervisory, inspection, architectural or engineering activities. c) The insurance provided to the additional in- sured does not apply to "bodily injury" or "property damage" caused by "your work" and included in the "products-completed op- erations hazard" unless the "written contract requiring insurance" specifically requires you to provide such coverage for that additional insured, and then the insurance provided to the additional insured applies only to such "bodily injury" or "property damage" that oc- curs before the end of the period of time for which the "written contract requiring insur- ance" requires you to provide such coverage or the end of the policy period, whichever is earlier. 3. The insurance provided to the additional insured by this endorsement is excess over any valid and collectible "other insurance", whether primary, excess, contingent or on any other basis, that is available to the additional insured for a loss we cover under this endorsement. However, if the "written contract requiring insurance" specifically requires that this insurance apply on a primary basis or a primary and non-contributory basis, this insurance is primary to "other insurance" available to the additional insured which covers that person or organization as a named insured for such loss, and we will not share with that "other insurance". But the insurance provided to the additional insured by this endorsement still is excess over any valid and collectible "other in- surance", whether primary, excess, contingent or on any other basis, that is available to the addi- tional insured when that person or organization is an additional insured under such "other insur- ance". 4. As a condition of coverage provided to the additional insured by this endorsement: a) The additional insured must give us written notice as soon as practicable of an "occur- rence" or an offense which may result in a claim. To the extent possible, such notice should include: CG D2 46 08 05 © 2005 The St. Paul Travelers Companies, Inc. Page 1 of 2 COMMERCIAL GENERAL LIABILITY i. How, when and where the "occurrence" or offense took place; ii. The names and addresses of any injured persons and witnesses; and iii. The nature and location of any injury or damage arising out of the "occurrence" or offense. b) If a claim is made or "suit" is brought against the additional insured, the additional insured must: i. Immediately record the specifics of the claim or "suit" and the date received; and ii. Notify us as soon as practicable. The additional insured must see to it that we receive written notice of the claim or "suit" as soon as practicable. c) The additional insured must immediately send us copies of all legal papers received in connection with the claim or "suit", cooperate with us in the investigation or settlement of the claim or defense against the "suit", and otherwise comply with all policy conditions. d) The additional insured must tender the de- fense and indemnity of any claim or "suit" to any provider of "other insurance" which would cover the additional insured for a loss we cover under this endorsement. However, this condition does not affect whether the insur- ance provided to the additional insured by this endorsement is primary to "other insur- ance" available to the additional insured which covers that person or organization as a named insured as described in paragraph 3. above. 5. The following definition is added to SECTION V. -DEFINITIONS: "Written contract requiring insurance" means that part of any written contract or agreement under which you are required to include a person or organization as an additional in- sured on this Coverage Part, provided that the "bodily injury" and "property damage" oc- curs and the "personal injury" is caused by an offense committed: a. After the signing and execution of the contract or agreement by you; b. While that part of the contract or agreement is in effect; and c. Before the end of the policy period. Page 2 of 2 © 2005 The St. Paul Travelers Companies, Inc. CG D2 46 08 05 WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY BLANKET WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against any person or organization with whom you have a written contract that requires you to obtain this agreement from us. The additional premium for this endorsement shall be 2.00% of the California workers compensation premium otherwise due. Minimum Premium: $0 This endorsement changes the policy to which it is attached and is effective on the date issued unless otherwise stated. (The information below is required only when this endorsement is issued subsequent to preparation of the policy.) Endorsement Effective 07/01/2017 Insured NATURES IMAGE, INC. [A CORP] Policy No. Z127249503 Policy Period 07/01/2017 To 07/01/2018 Issued On 06/21/2017 WC-99-04-25B (Ed. 10-07) ZENITH INSURANCE COMPANY -13145 At Woodland Hills, CA Endorsement No. 13 TRAN1192 AMENDMENT NO. 3 TO AGREEMENT FOR MAINTENANCE SERVICES NATURE'S IMAGE, INC. is entered into and effective as of the Sth day of --.L-1.-J.C~:J.._I,_,.:..._a_ _____ , 2017, amending the agreement dated March 25, 2015, (the "Agr ment") by and between the City of Carlsbad, a municipal corporation, ("City"), and Nature's Image, Inc., a California corporation ("Contractor") (collectively, the "Parties") for environmental maintenance services for the Buena Vista Creek Channel Maintenance Assessment District located between Jefferson Street and South Vista Way bridges. RECITALS A. On August 3, 2015, the Parties executed Amendment No. 1 to the Agreement to increase the number of site visits in Year 1 and 2 and to change the payment of items from lump sum to time and materials based on the actual service performed during each visit and include routine monthly maintenance of the two storm drain outfalls; and B. On August 15, 2016, the Parties executed Amendment No. 2 to the Agreement to include a biological monitor to be present during monthly maintenance and operations at the storm drain outfalls to perform monitoring and reporting as required by the project permits and the Habitat Management Plan; and C. The Parties desire to add prevailing wage language to the agreement in accordance with the Director of Industrial Relations (DIR) requirements; and 6. PREVAILING WAGE RATES Any construction, alteration, demolition, repair, and maintenance work, including work performed during design and preconstruction such as inspection and land surveying work, cumulatively exceeding $1,000 and performed under this Agreement are subject to state prevailing wage laws. The general prevailing rate of wages, for each craft or type of worker needed to execute the contract, shall be those as determined by the Director of Industrial Relations pursuant to the Section 1770, 1773 and 1773.1 of the California Labor Code. Pursuant to Section 1773.2 of the California Labor code, a current copy of applicable wage rates is on file in the office of the City Engineer. Contractor shall not pay less than the said specified prevailing rates of wages to all such workers employed by him or her in the execution of the Agreement. Contractor ar.d any subcontractors shall comply with Section 1776 of the California Labor Code, which generally requires keeping aceurate payroll records, verifying and certifying payroll records, and making them available for inspection. Contractor shall require any subcontractors to comply with Section 1776. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. The following prevailing wage language will be added as Paragraph No. 6 to the Original Agreement in accordance with the Director of Industrial Relations (DIR) requirements with all subsequent paragraphs consecutively renumbered: 2. All other provisions of the Agreement, as may have been amended from time to time, will remain in full force and effect. City Attorney Approved Version 9/27116 TRAN1192 3. All requisite insurance policies to be maintained by Contractor pursuant to the Agreement, as may have been amended from time to time, will include coverage for this Amendment. 4. The individuals executing this Amendment and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Amendment. CONTRACTOR NATURE'S IMAGE, INC., a California corporation By: :!ol.t ~ Scq1fot.. ~ t:ln-e"fc.t== of 6·,.~'(. (print name/title) By: (sign here) (print name/title) CITY OF CARLSBAD, a municipal corporation of the State of California By: ~?J1c-7{~/JTL BARBARA ENGLESON City Clerk If required by City, proper notarial acknowledgment of execution by Contractor must be attached. If a corporation, Agreement must be signed by one corporate officer from each of the following two groups: Group A Chairman, President, or Vice-President Group B Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: CELIA A. BREWER, City Attorney BY:~ ------------------~-----Deputy City Attorney City Attorney Approved Version 9/27/16 2 ~ (i/ natures Image CORPORATE RESOLUTION Corporate Officers: Michelle Caruana, President, Secretary & Treasurer John Caruana, Vice President I hereby certify that a meeting duly called, of the Board of Directors of Natures Image, Inc., a Corporation in the state of California, held on the 281h day of November 2016 at which said meeting a quorum was present and acting throughout, the following preamble and resolution was adopted and ever since has been and now is in full force effect. RESOLVED: The following employees are authorized to execute contract documents or to execute bid submittals. Name: Michelle Caruana John Caruana Andrew J. Fox Craig Zalch John Scatton Title: President, Secretary and Treasurer Vice President Executive Vice President and Chief Operating Officer Director of Operations Director of Finance In witness whereof, I hereunto set my hand and affix the seal of this Corporation on this 281h day of November 28, 2016 Q Qca&~v e---- Signature of Secretary Corporate Seal 20361 Hermana Circle, Lake Forest, CA. 92630 • P 949 680 4400 oF 949 680 4450 o www.naturesimage.net • CL7.20513 healing environments. TRAN1192 AMENDMENT N0.2 TO AGREEMENT FOR MAINTENANCE SERVICES NATURE'S IMAGE, INC. TMmendment No. 2 is entered into and effective as of the )!;!!} day of .~\.1,>{=-: , 2016, amending the agreement dated March 25, 2015 (the "Agreement") by nd between the C1ty of Carlsbad, a mumc1pal corporation, ("C1ty"), and Nature's Image, Inc., a California corporation ("Contractor") (collectively, the "Parties") for environmental maintenance services for the Buena Vista Creek Channel Maintenance Assessment District located between Jefferson Street and South Vista Way bridges. RECITALS A. On August 3, 2015 the Parties executed Amendment No. 1 to the Agreement to increase the number of site visits in Year 1 and Year 2 and to change the payment of the item from lump sum to time and materials based on the actual service performed during each visit and include routine monthly maintenance of the two storm drain outfalls; and B. The Parties desire to alter the Agreement's scope of work to include a biological monitor to be present during the monthly maintenance operations at the storm drain outfalls to perform monitoring and reporting as required by the project permits and the Habitat Management Plan; and C. The Parties desire to alter the Agreement's scope of work to delete one exotic Maintenance Event for a total of 3 Maintenance Events; and D. Surveys within the channel identified the presence of both nesting and individual endangered species within the project limits. This discovery required consultation with the Carlsbad Fish and Wildlife Office. The result of this consultation was to modify the limits and location of the annual vegetation removal within the areas inhabited by endangered species as shown on attached Figure 1; and C. The Parties have negotiated and agreed to a supplemental scope of work and fee schedule, which is attached to and incorporated by this reference as Exhibit "A", Scope of Services and Fee. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. In addition to those services contained in the Agreement, as may have been amended from time to time, Contractor will provide those services described in Exhibit "A". 2. City will pay Contractor for all work associated with those services described in Exhibit "A" on a time and materials basis. The following revisions have been made to the agreement: a. One Exotic Maintenance Visit was eliminated from Year 1 bringing the total fee for this item to $16,599. b. Biological Monitoring during Monthly Storm Drain Outfall Maintenance has been added for a total annual cost each year for years 2 through 5 of $5,253.75 for a total contract cost of $21,015. c. Presence of an endangered species within the project limits necessitated the City Attorney Approved Version 1/30/13 1 TRAN1192 modification of each years Channel Clearing cost to the following new acreages and not to exceed fee: i. Year 2 -1.07 acres for a revised Not to Exceed Fee of $50,413.42. ii. Year 3-1.41 acres for a revised Not to Exceed Fee of $66,432.64. iii. Year 4 -1.26 acres for a revised Not to Exceed Fee of $59,365.34. iv. Year 5 -0.3 acres for a revised No to Exceed Fee of $14,134.60. d. Modifications to the location of the Maintenance Areas requires the Bat Survey to be completed in Year 4. The modifications adjust the overall contract compensation from $499,398 to $475,569.30. Contractor will provide City, on a monthly basis, copies of invoices sufficiently detailed to include hours performed, hourly rates, and related activities and costs for approval by City. 3. Contractor will complete all work described in Exhibit "A" by March 23, 2020. 4. All other provisions of the Agreement, as may have been amended from time to time, will remain in full force and effect. 5. All requisite insurance policies to be maintained by Contractor pursuant to the Agreement, as may have been amended from time to time, will include coverage for this Amendment. Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill City Attorney Approved Version 1/30/13 2 TRAN1192 6. The individuals executing this Amendment and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Amendment. CONTRACTOR NATURE'S IMAGE INC., a California corporation By~~~~ By: (sign here) (print name/title) CITY OF CARLSBAD, a municipal corporation of the State of California By: City Clerk If required by City, proper notarial acknowledgment of execution by Contractor must be attached. If a corporation, Agreement must be signed by one corporate officer from each of the following two groups: Group A Chairman, President, or Vice-President Group B Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: CELIA A. BREWER, City Attorney BY: ~y£;~_,__,C"""ti"""'"" """~.;;....:~:::....:_ ___ _ Deputy City Attorney City Attorney Approved Version 1/30/13 3 Item Description Exotic Maintenance (total and number of visits) Monitoring (T&M}- Summit Environmental Adjusted Channel Clearing (T&M} Storm Drain Outfall Maintenance Bat Survey (required at bridges) Amendment No.2 Monitoring During Storm Drain Outfall Maintenance - Summit Environmental ANNUAL TOTAL EXHIBIT "A" SCOPE OF SERVICES AND FEE AMENDMENT NO. 2 PROPOSAL SUMMARY BY YEAR AND ITEM Year 1 Year2 Year 3 Year4 April2015 April2016 April2017 April2018 to March to March to March to March 2016 2017 2018 2019 3 visits 3 visits 3 visits 3 visits $16,599 $17,808 $11,034 $11,034 $17,374 $17,374 $15,113 $15,113 1.04 Acres 1.07 Acres 1.41 Acres 1.26 Acres $52,058.30 $50,413.42 $66,432.54 $59,365.34 $12,360 $12,360 $12,360 $12,360 $2,571 $3,795 $0 $5,253.75 $5,253.75 $5,253.75 $100,962.30 $103,209.17 $110,193.39 $106,921.09 TRAN1192 Year 5 April2019 to March TOTAL 2020 CONTRACT 2 visits $7,422 $63,897.00 $15,113 $80,087.00 0.3 Acres $14,134.60 $242,404.30 $12,360 $61,800.00 $6,366.00 $5,253.75 $21,015.00 $54,283.35 $475,569.30 Nature's Image will supply a biologist to monitor and report on maintenance activities at the storm drain outfall structures during each day of the maintenance activities per the attached proposal dated March 31, 2016. City Attorney Approved Version # 05.22.01 4 TRAN1192 Due to the presence of the Light Footed Ridgway Rail, an endangered species, the City of Carlsbad consulted with the Carlsbad Fish and Wildlife office and the California Department of Fish and Wildlife and agreed to modify Year 2 from the original contract to break up into smaller sections and change the acreage for each of the years remaining in the five-year cycle. The new areas have been delineated on the attached exhibit and a digitally georeferenced plan will be provided to Natures Image for their use in the field. City Attorney Approved Version# 05.22.01 5 ~ natures 1mage March 31, 2016 20361 Hermana Circle Lake Forest, CA 92630 ATTN: Sherri Howard -Associate engineer 1635 Faraday Ave. Carlsbad, Ca 92008 Sherri.Howard@carlsbadca.gov RE: Outfalls Maintenance Monitoring Nl Job#: 2691-City of Carlsbad 'Buena Vista Creek' Long Term Maintenance CHANGE ORDER No. 2 I!!!k Unit Monitor Outfalls Maintenance Efforts Not to Exceed Exhibit "A" Total $21,015.00 Inclusions: Supply biologist to monitor and report on maintenance efforts done by Natures Image in all 3 Outfalls locations. Monitor will be present every day the crew is on site. Exclusions: Additional mobilization, aggregate, rock, gravel, bonds, certified payroll, chemical applications, clearing & grubbing, concrete work, electrical work, erosion control or repair of erosion control, work above 6 feet and fall protection, fencing removal, repair, materials and installation, fertilizer, irrigation, irrigation repairs or guarantee, grading, jute netting, coir fabric, straw wattles, BMP installation and/or maintenance, photos, plant purchase, plant guarantee, plant protection, plant establishment, site maintenance, meetings, mulch, mycorrhizae inoculum, permits, prevailing wage rates, exotic species removals, native species removals, reports, rip rap, ripping, retention, reseeding, seed germination guarantee, safety fencing, ESA fencing, silt fencing, site protection, site clearing, soil preparation, compaction, decompaction, soil amendments, soil scarifying, pesticide and herbicide spraying, spraying retreatments, straw blowing, surveying, flagging of boundaries, soil samples or testing, traffic control, cost of water, water source, water meter, watering, weeding, repair due to acts of God, war, vandalism or neglect/damage by Owner or others, waivers of subrogation and additional insurance endorsements. Any items not specifically mentioned in the inclusions above. Notes: Assume easy vehicle/equipment access. Natures Image, Inc. is a non-union company. Items not specified in this change order are neither implied nor included. This change order shall become an addendum to any contract with the terms set forth in this addendum which shall supersede any conflicting terms in any other contract documents. Please sign this and return document to Natures Image, Inc. Change Order Price: Good for 30 days Thank you for the opportunity to bid. Si erely, N URES IMAGE, INC. \ I ' ~ Victor :A.guirre Project Manager Terms: Net 30 days Client Signature:. __________ _ Date:. __________ _ DUDEK SOURCE. CA Coastal Commissk>n; SanGIS; Bmg Maps 7177 Buena Vista Creek Channel Maintenance Project-Consolidated Coastal Development Permit Application Response to Request for Additional Information Observed Special-Status Species A light-footed Ridgway:S rail Permitted Impacts 0 Year 1 (2015-2016) -1.04 acres 0 Year 2 (2016-2017) -1.20 acres Year 3 (2017-2018)-0.77 acre 0 Year 4 (2018-2019)-1.11 acres 0 Year 5 (2019-2020)-0.96 acre ~ Year 2 (2019-2020)-0.30 acre Year 3 (2016-2017)-1.07 acres I2Sd Year 4 (2017-2018)-1.41 acres ~ Year 5 (2018-2019) -1.26 acres FIGURE 1 Permitted Impacts vs. Proposed Impacts-Biological Resource Map TRAN1192 AMENDMENT N0.1 TO AGREEMENT FOR MAINTENANCE SERVICES NATURE'S IMAGE, INC. Thjs Amendment No. 1 is entered into and effective as of the 3 rc:f...-day of ~~u.s C , 2015, amending the agreement dated March 25, 2015 (the "Agreement") y and between the C1ty of Carlsbad, a mumc1pal corporation, ("C1ty"), and Nature's Image, Inc., a California corporation ("Contractor") (collectively, the "Parties") for environmental maintenance services for the Buena Vista Creek Channel Maintenance Assessment District located between Jefferson Street and South Vista Way bridges. RECITALS A. The Parties desire to alter the Agreement's scope of work to include the Work Plan dated June 2015 attached to and incorporated by this reference as Exhibit "B", to increase the number of site visits in Years 1 and 2 to four visits per year and to change the payment of the item from lump sum to time and materials based on actual services performed during each visit and include routine monthly maintenance of two storm drain outfalls; and B. The Parties have negotiated and agreed to a supplemental scope of work and fee schedule, which is attached to and incorporated by this reference as Exhibit "A", Scope of Services and Fee. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. In addition to those services contained in the Agreement, as may have been amended from time to time, Contractor will provide those services described in Exhibit "A". 2. City will pay Contractor for all work associated with those services described in Exhibit "A" on a time and materials basis not-to-exceed seventy eight thousand six hundred eighty six dollars ($78,686). Contractor will provide City, on a monthly basis, copies of invoices sufficiently detailed to include hours performed, hourly rates, and related activities and costs for approval by City. 3. Contractor will complete all work described in Exhibit "A" by March 23, 2020. 4. All other provisions of the Agreement, as may have been amended from time to time, will remain in full force and effect. 5. All requisite insurance policies to be maintained by Contractor pursuant to the Agreement, as may have been amended from time to time, will include coverage for this Amendment. Ill Ill Ill City Attorney Approved Version 1/30/13 TRAN1192 6. The individuals executing this Amendment and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Amendment. CONTRACTOR NATURE'S IMAGE, INC. :~~~ (51 Michelle Caruana I President & Secretary (print name/title) By: (sign here) (print name/title) CITY OF CARLSBAD, a municipal corporation of the State of California ATTEST: City Clerk If required by City, proper notarial acknowledgment of execution by Contractor must be attached. If a corporation, Agreement must be signed by one corporate officer from each of the following two groups: Group A Chairman, President, or Vice-President Group B Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: CELIA A. BREWER, City Attorney City Attorney Approved Version 1/30/13 2 TRAN1192 EXHIBIT "A" SCOPE OF SERVICES AND FEE SCOPE OF WORK Work plan added to contract with this amendment. The work plan describes the work to be done and the ~otal compensation for t~e prole ct. The scope ha~ been revised to s~t up _the majori~y of the pay 1tems as time and matenals. The purpose for sett1ng the contract up 1n th1s manner IS to adequately compensate the contractor in years where a significant effort is necessary to comply with the goals and objectives of the maintenance assessment district and within the constraints of the project permits. A breakdown of the revised items follows: AMENDMENT NO. 1 PROPOSAL SUMMARY BY YEAR AND ITEM TOTAL Item Description Year 1 Year2 Year3 Year4 Year 5 CONTRACT Exotic Maintenance {T&M) $16,599 $17,808 $11,034 $11,034 $7,422 $69,430 __ Monitoring $17,374 $17,374. $15,113 $15,113 $15,113 $80,087 Adjusted Channel Clearing (T&M) $70,354 $55:004 $45,916 $45,779 $43,647 $260,700 Storm Drain Outfall Maintenance $12,360 $12,360 $12,360 $12,360 $12,360 $61,800 .. Bat Survey r--:-$2,571 $3,795 $6,366 .· ANNUAL TOTAL· $119,258 $102,546 $84,423 $84,286 $82,337 $478,3$3 ·,· Amendment No. 1 .. Increase in Fee $12,360 $16,812 $23,839 $7,782 $12,360 $78,686 City Attorney Approved Version# 05.22.01 3 EXHIBIT "B" BUENA VISTA CREEK CHANNEL WORK PLAN June 2015 Prepared for: City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92008 Contact: Sherri Howard (760) 602-2756 TRAN1192. City Attorney Approved Version# 05.22.01 4 BUENA VISTA CREEK CHANNEL WORK PLAN TABLE OF CONTENTS 1.0 DEFINITIONS 2.0 INTRODUCTION 3.0 PROJECT DESCRIPTION 4.0 LEGAL REQUIREMENTS OF THE WEED CONTROL PROGRAM 5.0 SENSITIVE SPECIES ISSUES 6.0 WEED CONTROL PROGRAM 7.0 CHANNEL VEGETATION CLEARING 8.0 PLANTING AND SEEDING LISTS 9.0 REPORTING REQUIREMENTS :10.0 PAYMENT ·t -, .C PERMITS TRAN1192 12.0 NOTIFICIATION OF PROPERTYOWNERSOF INTENT TO PERFORM WORK 13.0 REQUIREMENTS 14.0 ILLEGAL ENCAMPMENTS 15:0 FEE City Attorney Approved Version# 05.22.01 5 TRAN1192 1.0 DEFINITIONS For the purposes of this agreement, the following shall be defined: ACOE -U.S. Army Corps of Engineers BMP's -Best Management Practices CCC -California Coastal Commission COP-Coastal Development Permit 6-13-0713 issued by the California Coastal Commission 2014 CDFW-California Department of Fish and Wildlife City -City of Carlsbad Engineer -The Public Works Director/City Engineer of the City of Carlsbad or his/her approved representative. The Public Works Director/City Engineer is the third level of appeal for informal dispute resolution. Engineering Manager -The Associate Engineer's supervisor and second level of appeal for informal dispute resolution. MMRP-Mitigation and Monitoring Reporting Program prepared by Dudek and Associates, dated May 2013 Restoration Biologist-A Restoration Biologist will be hired by the Contractor with knowledge and understanding of the native and exotic plant species and natural plant communities present on site. The Restoration Biologist will have training and experience in habitat restoration projects in coastal Southern California. The Restoration Biologist shall monitor the work of the Landscape Contractor and prepare any necessary reports to the City and resource agencies. The Restoration Biologist shall also determine whether any planting and/or seeding is necessary following the removal and/or control of invasive exotic weed species from the project site. The Restoration Biologist must hold a Pest Control Adviser's license if he or she m.akes specific pest control recommendations. ~EIR .-Supplemental Environmental Impact Report #02-03(A) certified by the Carlsbad City Cpuncil June 11, 2013. Pest Control Adviser -The California Food and Agriculture Code defines Pest Control Adviser as "any person who offers a recommendation on any agricultural use, who holds him~elf. or herself forth as an authority on any agricultural use, or who solicits services or sales for any agricultural use." Agricultural use is very broadly defined in the law to include ~!most all uses except for specified exceptions for home use, structural pest control, industrial or institutional use, and other specific limited circumstances. The definition of agricultural use includes roadsides, right-of-way, and waterways, which would include the Buena Vista Creek channel. State law requires that Pest Control Advisers obtain an Agricultural Pest Control Adviser License and register in the county where they make recommendations. City Attorney Approved Version# 05.22.01 6 TRAN1192 Project Engineer/Project Manager/Project Inspector -The Engineer's designated representative · for. inspection, contract administration, and first level for informal dispute resolution. Recommendations -The California Food and Agriculture Code defines recommendation as "the giving of any instruction or advise on any agricultural use as to any particular application on any particular piece of property." Recommendations must be put in writing and signed, and must: include specific required information listed in the regulations. SAA ..... Streambed Alteration Agreement #1600-2013-0135-R5, issued by CDFW 2014. Supervi$oriProject Contract Manager -The Contractor's on-site Supervisor/Crew Leader and designated contact with the Engineer. The Restoration Biologist may assume the role of supervisor .. The Contractor's Supervisor/Crew leader is authorized to represent the Contractor at all meetings and on the site and is also authorized to author any reports provided by the Contractor. 2.0 INTRODUCTION This exotic plant species work plan discusses the removal and control of exotic plant species from the wetlands and uplands within the Buena Vista Creek Channel. The project study area Is located between the South Vista Way Bridge and the Coastal Zone boundary (east of the Jefferson Street Bridge) in the cities of Carlsbad and Oceanside, as shown on the U.S. Geological Survey 7.5 minute map, San Luis Rey quadrangle, in Section 22, Township 11 Soui·h, Range 4 West. The eastern terminus of the project corridor, South Vista Way bridge, is lcc;:sted at latitude 33°10'47" and longitude 11r20'22" and the western terminus, about 950 feet upstream of the Jefferson Street bridge, is located at latitude 33°1 0'48" N, and longitude 11r19'40"W (Thomas Guide map page1106, F-2 and G-2). The project is situated between State.Route 78 to the north and the Plaza Camino Real shopping center to the south. ' ' The purp.ose of the project is to maintain channel floodwater capacity in the project area and protect property. In order to meet these requirements, one-fifth of the vegetation will be removed from the northern half of the channel in the fall of each year on an ongoing basis .. As a mitigation measure for the channel maintenance project, the SEIR Mitigation Monitoring and Reporting Program (MMRP) Agreement requires the monitoring and eradicating of exotic .. plant species within the 11.33-acre project area. It also requires the revegetation of exotic plant species removal areas with species appropriate to Buena Vista Creek. All stock introduced onsite shall be propagated from material collected in the vicinity. A combination of physical removal and herbicide treatment will be required to control exotic plant species in the project area. 3.0 PROJECT DESCRIPTION This Plan has been prepared in accordance to the Buena Vista Creek Channel Maintenance Project Supplemental Environmental Impact Report (SEIR) (Dudek 2013), the Biological Resource Report and Impact Assessment for the Buena Vista Creek Maintenance Project (Dudek 2013) and Exotic· Plant Species Control Plan for Buena Vista Creek Channel (Dudek ~b14~ . City Attorney Approved Version # 05.22.0~ 7 TRAN1192 The project consists of initial exotics removal over the entire project site and maintenance of the exotics for a five. year period. The second aspect of the project is to perform channel clearing within the project site. The channel clearing is broken down into 5 sections. One section is to be completed each fall beginning in 2015 until 5 sections are complete. Six (6) months prior to the<completion of Year 5 (2019}, the City and Contractor shall review past progress and determine if the contract will be amended and extended for an additional five {5) years. This amendment and extension shall require City Council approval. 4.0 LEGAL :REQUIREMENTS. OF THE WEED CONTROL PROGRAM All applicable laws, regulations, safety precautions, and label directions will be followed when performing pest control. Maintenance Contractor is a licensed Pest Control Business (License No. 30751), has a Pest Control Advisors License (PCA License No. 75497) and Qualified Applicators Licenses· {QAL 104228, 115745, 116095, 118735,-118736, 118334, 122282 and QAC 77339) including licenses to apply pesticides under aquatics and right-of-way classifications. Copies of licenses and certificates shall be provided to the City prior to start of work and shall remain in the project file. Our PCA will supply herbicide recommendations for use as needed. The herbicides we plan to utilize are: • Glyphosate • tmazapyr • ·. Triclopyr • . Pel.a~gonic acid. No Y\f.~[Picides will_be applied to any open water areas. The above-described herbicides could ~h~nge, . as new formulatiQns become available that are applicable to the species we are treatin·g. Updates to herbicide formulations shall be presented to the City in written form and kept in the. project file. Tq conforrn to the Migratory Bird Treaty Act, the monitoring biologist will perform nesting bird SUrVeys priOr to any ex'otics removal or control and follow-up herbicide treatments that may t:>e req~ired by maintenance contractor between February 15th and September 1st. . · • • • 1 5.0 SENSITIVE SPECIES ISSUES No state or federally-listed endangered or threatened plant species were observed on-site or are. expe,cted to occur on-site. Legally registered herbicides will be used in the project area within the constraints of the SEIR, MMRP and SAA #1600-2013-0135-R5 provided the label directions are followed, and all safety, laws and regulations are abided by, since they pose no nsk to these species. 6.0 WEED CONTROL PROGRAM Maintenance contractor, will not remove or control any of the ornamental landscape plants placed as a visual buffer along the southern boundary of the Buena Vista Creek channel. Exotic •plant species observed growing in the Buena Vista Creek project area and to be removed are Acacia (Acacia species), Tree-of-heaven (Ailanthus altissima), Giant Reed City Attorney Approved Version # 05.22,.01 8 TRAN1192 (Arundo donax), Australian. Saltbush (A triplex semibaccata), Ice Plant (Carpobrotus edulis), Pampas Grass (Cortaderiajubata and C. sel/oana), Red Gum (Eucalyptus camaldulensis), Fennel · (Foeniculum vulgare), Evergreen Ash (Fraxanus uhdet), myoporum (Myoporum laetum), Tree Tobacco (Nicotiana glauca), Fountain Grass (Pennisetum setaceum), Canary lslanq Date Palm. (Phoenix .canariensis), Cast()r Bean (Ric;inu!? communis), Brazilian ~~per (Schinus t!1rebinthifolius), ··Salt, Cedar (Tamarix ramosissima), Mexican Fan . Palm (Washingtonia . robu_sta), Creep,ing Waterprimrose (Ludwigia pep/aides) and Perennial Pepperweed (Lepidium latifolium). The initial exotics removal effort will begin after September 1 of 2015, and will coincide with the channeJvegetation:removal for section 1. A biological monitor, in accordance with the 1601 Streambed Alteration Agreement, will provide the required daily biological field monitoring while M;:.int~nanc~. contractor, completes the vegetation r~moval for sectio.n 1 a11d cornpletes th~,.initial ~xotic. weed ·remo\/al. For subsequent years, the biological monitor w!ll complete the daily monitoring . reports for the channel veg.etation removaL for each .section. Follow-up weed control measures will be on the exotic species being controlled. The maintenance contractor will perform 4 maintenance visits the first and second years and estimate this to be done on a quarterly basis. For years three and four, there will be 3 maintenance visits. For years 5-10, there will be 2 maintenance visits. The biological monitor will be on-site to perform the nesting bird surveys when the maintenance work falls between February 15 and September 1 for each year. During the maintena.nce. phases, seedlings and small plants that are pulled or sprayed may be left to decompose on~site. Regrowth that is subsequently treated with herbicide may be left in place to decompose. The m.aintenance contractor., will use the following herbicides: G lyphosate (trade names Aquamaster, Ranger .Pro, Roundup Pro, Roundup Pro Dry, Roundup Pro Concentrate, etc.), lmazapyr (trade names Habitat, Polaris), Triclopyr (trade names Garlon 3A, Garlon 4, Pathfinder II), and Pelargonic Acid (trade name Scythe). Monthly, Contractor shall treat weed growth in the pilot channel from twin culverts under Interstate 78. Pilot channel is 50' long (.05 acre) and at the two storm drain outfall identified on the plans each 400 square feet.maximum. 7.0. CHANNEL VEGETATION CLEARING During the annual channel clearing, the large trees or plants that are removed during the initial stage of work will be removed from the project site. The vegetation will be removed in the northern. half of the channel over a five-year period. One fifth of the northern half of the channel would be. removed by hand down to ground level every year. Vegetation is not proposed to be removed between February 151h and September 1st to avoid impacts to nesting birds in between February 15th and September 1st to avoid impacts t nesting birds in accordance with the Migratory Bird Treaty Act. For purposes of vegetation removal, maintenance vehicles will use the existing access roads that run parallel to the northern bank of the channel in order to remove the biomass off-site. The vegetation to be removed will consist of native wetlands plants, small native trees and shrubs, and any non-native plants that appear after the exotics clearing. The conditions and City Attorney Approved Version # 05.22.01 9 ._··.·· TRAN1192 requirements do not allow any mechanized equipment such as A TV's, excavators, loaders, or tractors, in the channel. The channel bottom may not be disturbed and backhoe or excavator buckets cannot penetrate .the channel bottom. The channel clearing is thereby restricted to only manual labor in the channel bottom. The requirements· restrict the c;hannel vegetation clearing methods to hand tools or. small hand-held. power tools .. The vegetation will be cut at the water level using hand shears,. loppers, machetes .. chainsaws, ~tring trimmers with blades, and/or hedge trimmers. The cut vegetation will be bundled and carrjed or pulled by rope .to the north side of the channel. The cut vegetation will be loaded into bins or dump trucks and may be chipped before being placed in the bins or durnp .trucks. The r~moved vegetation will. be disposed of at a lancjfill th~t e1ccepts green waste. Bin.s left on-site . .shall be placed so as not to be visible from-Interstate 78. ~ ' l .' < • The crews working in the channel will access the channel by flatbottom boat, wading, and/or plants suspended on flotation devices. The MMRP requires that equipment for maintenance activities shall be refueled or maintained within designated staging areas (adjacent parking lots). BMP's to contain accidental spills of hazardous materials shall be utilized when performing vehicle maintenance or refueling. All stationary equipment, such as motors or generators, shall be stored on the existing access road, drip pans shall be placed under all potential discharge conduits or leaks. The channel clearing plan and costs estimated are based on having clear access for our trucks to the north side of the channel on the access road at the east end or along the south edge of the field at the west end. We estimate· 15 to 20 working days to complete the vegetation removal· for each section over the course of 1 0 years. . -. . 8.0 . PLANTING AND SEEDING LISTS Seeding as required during the channel maintenance project to provide erosion protection shall be per Tables 1 and 2, below. Table 1 provides a seed mix to be hand broadcast on the channel ,slopes and may be sown into the riprap voids as well as on soil. Table 2 provides a seed mix to be hand broadcast in wetland areas within the channel. The seed mixes may also be C1PPiied by hydroseeding, using a virgin wood fiber mulch at the rate of 2,000 pounds per acre. TABLE 1 SEED LIST FOR CHANNEL SLOPES BUENA VISTA CREEK CHANNEL CARLSBAD, CALIFORNIA -: . SCIENT·IFIC NAME PERCENT P()UN[)S .... : ' COMMON NAME PLS1 PER ACRE Artemisia douglasiana Douglas mugwort 5 1 Enogorjum fasciculatium flat-top buckwheat 10 8 lsocoma menziesil · coast goldenbush 8 2 Lotus scoparius deerweed 49 4 -I TOTAL. 15 -1 PLS = pure hve seed City Attorney Approved Version # 05.22.01 10 TRAN1192 TABLE 2 SEED LIST FOR WETLAND AREAS BUENA VISTA CREEK CHANNEL CARLSBAD, CALIFORNIA SCIENTIFIC NAME•. .. COMMON NAME PERCENT'· POUNDS PLS1 PER ACRE Artemisia douglasiana Douglas mugwort 5 . 1 lsocoma menziesil coast goldenbush 8 2 Oenothera · nooneri Hookers evening primrose 71 1 Piucnea odorata .·. Saltmarsh fleabane 21 .5 TOTAL 4.5 1PLS = pure ltve seed Planting woody vegetation is not proposed in the channel or on its banks, as the purpose of this project is to reduce channel roughness to convey flood waters. At this time, Dudek and Associates does not believe this work needs to be done. If the need arises, the maintenance contractor, will perform such work on a time and materials basis as mutually agreed upon with the City of Carlsbad. 9.0 REPORTING REQUIREMENTS In accordance with the MMRP, the biological monitor will prepare an annual monitoring report to be submitted to the City of Carlsbad City Planner and Public Works Director, an annual report to be submitted to CDFW, in accordance with Reporting Measures 4.1 through 4.3 of the 1601 Streambed Alteration Agreement issued for the project. In conjunction with the annual clearing of vegetation or Buena Vista Creek, the biological monitor will prepare a brief letter report describing the maintenance and weed control efforts for the previous year, and include • representatiye photographs documenting the work. The annual reports will be submitted atthe end of each calendar year. All reports will be forwarded to the City for review. One copy of the draft report will be provided to the City. City will make comments within two weeks ·after receiving the draft report and Contractor shall address comments within two weeks after receiving City comments. Five copies of the final reports will be delivered to the City. The City will distribute the reports to the CDFW and Planning Director. Main~enance Contractor will submit monthly pesticide reports to the County Agricultural Commissioner documenting pesticide applications, with copies provided to the City for the project file. 10.0 PAYMENT Maintenance contractor will invoice the City monthly for progress payments on exotics removal, routine maintenance, channel clearing and field reporting. All invoices are to be paid in 30 days. Any retention withheld will be released 35 days from completion of each line item of work performed. The exotics maintenance will be billed quarterly and if retention is withheld that amount to be released after the completion of each year's maintenance. 11.0 PERMITS Res'o\.Jrce and agency permits ·for this are attached to this document and a copy to be kept City Attorney Approved Version # 05.22.01 II TRAN1192 on-site anytime work is being performed. Resource And agency permits pertaining to this project include: 1. California Department of Fish and Wildlife Streambed Alteration Agreement No. #1600- 2013-0135-R5. Contractor shall notify the Department in writing at least five (5) days prior to ihitiation of project activities and at least five (5) days prior to completion of project activities each year. Not:fication sba!! b_e sent to the Department at 3883 Ruffin Road, San Diego, CA ~2123, Attention: Streambed Alteration Program-SAA #1600- . 2013~0135.:R5 or'by electro'nit email to R5~SACompliance@wildlife.ca.gov. 2. California Coastal Commission Coastal DevelopmentPermit 6-13-0713. In addition, the City of Oceanside will require a grading permit for vegetation removal. The Oceanside grading permit shall be obtained and maintained by Contractor. At this time, an NPDES permit is not required. 12.0 NOTIFICATION OF PROPERTY OWNERS OF INTENT TO PERFORM WORK.· The Right of Entry for APN 165-120-56 requires written notice thirty (30) days prior to start ef any works · and 24 hoors' ' notite ·for emergency work. Contractor. shaH provide written notict~ · to the property owner at: C:-own Jewell Properties LLC 322!-:> E Pacific Highway #C · Sig~i:Ji Hill, CA 90755 . ~ \ . ' Right of l;ntry _is limited to January 15 to November 15 of each year (or in an emergency). ', • ' 1 • 1.3.0 _REQUIREMENTS The ~ontractor shall: f 2. Provide all labor and m~:iterials, except where otherwise indicated in this agreement, and supervise. the performance of. the work. Supervisor . Furnish a supervisor proficient in English who may be the restoration biologist . . . deeending on the activity and make every .effort to keep. the supervisor on-site when ,.' crews ,q,re working. Follow-up herbicide treatments do not require a supervisor. P;erfPr,rn all work necessary and incidental to the orderly performance of the work. . ' 4. .. . .· W:ork Hours . :work hours shall be between 7:00a.m. and 5:00p.m., Monday through Frid~y, City Attorney Approved Version# 05.22.01 12 TRAN1192 except City-observed holidays. The Contractor shall obtain the written approval of the Engineer if the Contractor desires to work outside hours or· at any time during weekends and/or holidays .. A 1;opy is provided in Exhibit "B". 5. Restor:ati.on Biologist Provide a restoration biologist for the monitori.ng as ·required. . · · The restoration biologistis responsible for ensuring that the Contractor. understands the maintenance provisions of the mitigation plan. ' ..... ,..-~ . '. ,. Substituting the restoration biologist from the designated person in the proposal .requires >·,a written request to the Engineer and written acknowledgement by the Engineer of the substitution. 6. Scheduling and Inspection A. Scheduling. Contractor shall prepare a bar chart .. schedule indicating maintenance and reporting. ·S.. Communication. The Contractor she11J. comm~nicate with .. the .Engineer at a : minimum pf once ~ month between September 1 and February 15 of each year. C .. .Inspection. A general inspection of each site with the Engineer or his designated . ". representative shall be made during the first week of each month between $.ep.temper 1.and feqruary 15. If no wqrk is occurring,. communication may either take{ place· by phone or email. · • -· •• 0 7. Emergency Call Out Procedures Emergency CallOut Procedures. Within fifteen (15) working days after the date of this agreement, Contractor shall submit to the Engineer or his designated representative for approval, a procedure for emergency response on nights, weekends, and holidays. 8. The Contractor shall require each of his personnel to adhere to basic public works standards of working attire with shirts and or vests clearly marked with the Contractor's company name. Shirts shall be worn and buttoned at all times. Contractor's personnel shall be equipped with proper shoes and other· gear required by the State Safety Regulations. Brightly colored traffic vests or reflectors shall be worn when personnel are working near vehicular traffic. ! ,'· 9. !Jie~al Encampments Buena Vista .Creek Ch<!lnnel is an open space area which has historically had instances of illegal encampments. Should Contractor become aware of an illegal . encampment, contact . the City project manager and the. Non-emergency contact number·forthe agency which has jurisdiction: City At~orney Approved Version# 05.~f.01 13 -·~· ~ ,. t , -:\ ' < • • •• ~)A; •• r, . TRAN1192 Plan to :describe the location of the encampment and a general description of the . encampment. The responding jurisdiction may not be able to visit the site immediately. If the City of Carlsbad project manager is L!navailable, contract Storm Water Duty Nurnber .. A representative from the City of Carlsbad. will follow up with the respc>r1ding jurisdiction. . City of Carlsb~d.ProjectManager-Sherri Howard-760-802,.7728 Storm Water Duty Number-766.:250-9904 . . ~ City of Carlsbad Non-emergency Contact Number-760-931~2197 City of Qcean&ipe .. _N,on-emergency Contact Number-760-435-4900 . '' --' . . . ~. ' ,,\,•' · .. t. City Attorney Approved Version# 05.22.01 14 TRAN1192 15.0 FEE TASK SCHEDULE COST EXOTICS REMOVAL EXOTICS MAINTENANCE (to be paid T&M based on rate schedule) Year1 1 LS $ 16,S99.00 Year2 1 LS $ 17,808.00 Year3 1 LS $ 11,034.00 Year4 1 LS $ 11,034.00 YearS 1 LS $7,422.00 MONITORING (to be paid T&M based on rate schedule} Year1 1 LS $ 17,374.00 Year2 1 LS $ 17,374.00 Year3 1 LS $1S,113.00 Year4 1 LS $ 1S,113.00 YearS 1 LS $ 1S, 113.00 CHANNEL CLEARING (to be Jaid T&M based on rate schedule} Est. Working Days Section 1 Year1 33 $ 70,3S4.00 Section 2 Year2 2S $ SS,004.00 Section 3 Year3 20 $ 4S,916.00 Section 4 Year4 20 $ 4S,779.00 SectionS YearS 20 $43,647.00 STORM DRAIN OUTFALL MAINTENANCE AREAS (3 AREAS) Year1 Monthly (12 Visits)@ $106S $12,360.00 Year2 Monthly (12 Visits)@ $106S $12,360.00 Year3 Monthly (12 Visits)@ $106S $12,360.00 Year4 Monthly (12 Visits)@ $106S $12,360.00 YearS Monthly (12 Visits)@ $106S $12,360.00 BAT SURVEY (AT BRIDGES ONLY) Year1 Lump Sum $ 2,S71.00 Jefferson Street YearS Lump Sum $3,79S.OO South Vista Way Each year the fee schedule shall be reviewed. Revisions to the Fee Schedule require an amendment to the maintenance agreement. Itemized List of what Contractor will do for City and at what price. City Attorney Approved Version # 05.22.01 15 AGREEMENT FOR MAINTENANCE SERVICES (NATURE'S IMAGE, INC.) TRAN1192 THIS AGREEMENT is made and entered into as of the c:<s-f"" day of Mav--ch , 2015, by and between the CITY OF CARLSBAD, a municipal corporation, ("City"), and NATURE'S IMAGE, INC., a California contractor, ("Contractor"). RECITALS A. City requires the professional services of an environmental maintenance services firm that is experienced in maintaining channel beds. B. Contractor has the necessary experience in providing professional services and advice related to maintenance of Buena Vista Creek Channel and resource agency, permit compliance and reporting. C. Contractor has submitted a proposal to City and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. SCOPE OF WORK City retains Contractor to perform, and Contractor agrees to render, those services (the "Services") that are defined in attached Exhibit "A", which is incorporated by this reference in accordance with this Agreement's terms and conditions. 2. STANDARD OF PERFORMANCE While performing the Services, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor's profession practicing in the Metropolitan Southern California Area, and will use reasonable diligence and best judgment while exercising its professional skill and expertise. 3. TERM The term of this Agreement will be effective for a period of five (5) years from the date first above written. The City Manager may amend the Agreement to extend it for one (1) additional five (5) year period or parts thereof in an amount not to exceed one hundred thousand dollars ($1 00,000) per Agreement year. Extensions will be based upon a satisfactory review of Contractor's performance, City needs, and appropriation of funds by the City Council. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement. 4. TIME IS OF THE ESSENCE Time is of the essence for each and every provision of this Agreement. 5. COMPENSATION The total fee payable for the Services to be performed during the initial Agreement term will be three hundred ninety nine thousand six hundred ninety seven dollars ($399,697) per the attached schedule listed in Exhibit 8. No other compensation for the Services will be allowed except for items covered by subsequent amendments to this Agreement. The City reserves the right to withhold a ten percent (10%) retention until City has accepted the work and/or Services specified in Exhibit "A". Incremental payments, if applicable, should be made as outlined in attached Exhibit "A". City Attorney Approved Version 1/30/13 TRAN1192 6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be under control of City only as to the result to be accomplished, but will consult with City as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of City for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. City will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which City may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the City's election, City may deduct the indemnification amount from any balance owing to Contractor. 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of City. If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and City. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by City. 8. OTHER CONTRACTORS The City reserves the right to employ other Contractors in connection with the Services. 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorneys fees arising out of the performance of the work described herein caused by any negligence, recklessness, or willful misconduct of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City's self-administered workers' compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 10. INSURANCE Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor's agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:Vll". OR with a surplus City Attorney Approved Version 1/30/13 2 TRAN1192 line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X". 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liability Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 1 0.1.2 Automobile Liability. (if the use of an automobile is involved for Contractor's work for City). $1 ,000,000 combined single-limit per accident for bodily injury and property damage. 1 0.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 1 0.1.4 Professional Liability. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. City's Initials Contractor's Initials D If box is checked, Professional Liability Insurance requirement is waived. 1 0.2. Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 1 0.2.1 The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City. 1 0.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 1 0.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then City will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain City Attorney Approved Version 1/30/13 3 TRAN1192 the required coverages. Contractor is responsible for any payments made by City to obtain or maintain insurance and City may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. 10.5 Submission of Insurance Policies. City reserves the right to require, at anytime, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 13. OWNERSHIP OF DOCUMENTS All work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of City. In the event this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to City. Contractor will have the right to make one (1) copy of the work product for Contractor's records. 14. COPYRIGHTS Contractor agrees that all copyrights that arise from the services will be vested in City and Contractor relinquishes all claims to the copyrights in favor of City. 15. NOTICES The name of the persons who are authorized to give written notices or to receive written notice on behalf of City and on behalf of Contractor under this Agreement. For City Name Sherri Howard Title Associate Engineer Department PW -Transportation City of Carlsbad Address 1635 Faraday Avenue Carlsbad, CA 92008 Phone No. (760) 602-2756 For Contractor Name Michelle Caruana Title President Address 20361 Hermana Xircle Lake Forest, CA 92630 Phone No. (949) 680-4400 Email mcaruana@naturesimage.net Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. City Attorney Approved Version 1/30/13 4 TRAN1192 16. CONFLICT OF INTEREST Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. 17. GENERAL COMPLIANCE WITH LAWS Contractor will keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor's services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants whose services are required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment. 19. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or City will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten ( 1 0) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the City Manager. The City Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the City Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. 20. TERMINATION In the event of the Contractor's failure to prosecute, deliver, or perform the Services, City may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If City decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, City may terminate this Agreement upon written notice to Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by City and all work in progress to City address contained in this Agreement. City will make a determination of fact based upon the work product delivered to City and of the percentage of work that Contractor has performed which is usable and of worth to City in having the Agreement completed. Based upon that finding City will determine the final payment of the Agreement. Either party upon tendering thirty (30) days written notice to the other party may terminate this Agreement. In this event and upon request of City, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to City. Contractor will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee payable City Attorney Approved Version 1/30/13 5 TRAN1192 under this Agreement. City will make the final determination as to the portions of tasks completed and the compensation to be made. 21. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contractor has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation ofthis warranty, City will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 22. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et seq., the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement. 23. JURISDICTIONS AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 24. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon City and Contractor and their respective successors. Neither this Agreement or any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of City, which shall not be unreasonably withheld. 25. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. Ill /II City Attorney Approved Version 1/30/13 6 TRAN1192 26. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. CONTRACTOR > Michelle Caruana I President & Secretary (print name/title) By: (sign here) (print name/title) CITY OF CARLSBAD, a municipal corporation of the State of California By: 'Odd#' ~ Mayor ATTEST: BARBARA ENGLE City Clerk If required by City, proper notarial acknowledgment of execution by contractor must be attached. If a corporation, Agreement must be signed by one corporate officer from each of the following two groups. Group A Chairman, President, or Vice-President Group B Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: CELIA A. BREWER, City Attorney City Attorney Approved Version 1/30/13 7 ~ natures 1mage CORPORATE RESOLUTION Corporate Officers: Michelle Caruana, President and Secretary John Caruana, Vice President and Treasurer I hereby certify that a meeting duly called, of the Board of Directors of Natures Image, Inc., a Corporation in the state of California, held on the 9th day of September, 2014 at which said meeting a quorum was present and acting throughout, the following preamble and resolution was adopted and ever since has been and now is in full force effect. RESOLVED: The following employees are authorized to execute contract documents or to execute a bid submittals on behalf of Natures Image, Inc. Name: Michelle Caruana John Caruana Steven Reinoehl Craig Zaich John Scatton Title: President and Secretary Vice President and Treasurer Director Chief Performance Officer Controller In witness whereof, I hereunto set my hand and affix the seal of this Corporation on this 9th day of September, 2014. Signature of Secretary Corporate Seal 20361 Hermana Circle, Lake Forest, CA. 92630 • P 949 680 4400 • F 949 680 4450 • www.naturesimage.net • CL720513 healing environments. EXHIBIT "A" SCOPE OF SERVICES AND FEE EXHIBIT 1-LOCATION MAP EXHIBIT 2-STREAMBED ALTERATION AGREEMENT NOTIFICATION NO. 1600-2013-0135-R5 EXHIBIT 3-COASTAL DEVELOPMENT PERMIT 6-13-0713 EXHIBIT 4-NOTICE OF DETERMINATION EIR02-03(A) EXHIBIT 5-MITIGATION MONITORING AND REPORTING PROGRAM TRAN1192 EXHIBIT 6-BUENA VISTA CREEK CHANNEL INVASIVE EXOTIC PLANT CONTROL PLAN EXHIBIT 7-NATURE'S IMAGE SCOPE OF SERVICES AND FEE EXHIBIT 8-PROPOSAL SUMMARY BY YEAR AND ITEM City Attorney Approved Version 1/30/13 8 LEGEND: ~ I NOT TO SCAlE PROJECT NA~E LOCATION HWY78 CITY OF OCEANSIDE _ ~OF CARlSBAD PERIODIC CLEANING OF OVERGROWTH WITHIN AREA AS SHOWN AREA OF CHANNEL NOT CLEANED Sl MAP BUENA VISTA CHANNEL MAINTENANCE DISTRICT EXHIBIT 1 CAUFORNIA DEPARTIIENT OF F•H AND WILDLIFE Sotmt COAST REGION 3883 RUFFIN ROAD SAN DIEGO, CALIFORNIA 92123 STREAMBED ALTERATION AGREEII!NT NO'nFICATION No. 1600-2013-0135-RS BUENA VISTA CREEK CITY OF CMLs8AD BUENA VISTA CREEK CHANNEL MAINTENANCE PROJECT "EXHIBIT 2" This Streambed Alteration Agreement (Agreement) is enter8d Into between the caUfomia Department of Fish and Wildlife (CDFW) and the City of cartsbad (Permittee) as represented by Sherrl Howard. RECITALS WHEREAS, pursuant to Fllh and Game Code (FGC) section 1802, Pennittee notified CDFW on July 2, 2013, that the Permittee intends to complete the project described her&in. WHEREAS, pursuant to FGC section 1603, CDFW has detennined that the project could substantially adveraely affect existing fish or wildlife reaources and has included measures In the Agreement necessary to protect those f'880l.KC88. WHEREAS, Permittee has revfewad the Agraement and accepts liB tenna and conditions, Including the meaauras to protact ftah and wildlife resources. NOW THEREFORE, Pennlttee agraes to complete the project In accordance with the Agreement PROJECT LOCAnON The project is located within Buena Vista Creek, In the County of San Diego, In the cities of cartebad and Oceanside; beginning at Latilude 33.179208, Longitude • 117.340352; U.S. Geological Survey 7.5-mlnute map San Luis Rey quadiW1gle, sections 31 and 32, Townlhlp 11 south, Range 4 W8lt, San Bernardino m811dian; Aaaesaor'a Parcel Numbers 15830111, 15630118, 15630117, 16830205, 16630224, 15830230, 15830232, 18512056, and 16512059. The project Is generally bounded by State Route 78 to the north, El C&mlno Real to the east, Plaza camino Real shopping mall to the south, and Jefferson Street to the west. Specifically, the project study araa Is located along 11.2 acres of Bl.BNl Vista Creek between the South VIsta way Bridge and the Jefferson Street Bridge. Notification #1600.2013-0135-RS Streambed Alteration Agreement Page 2 of 15 PROJECT DESCRIPTION The project is limited to the hand removal of freshwater marsh vegetation within the northern half of the channel between the upstream face of Jefferson Street Bridge, to the downstream face of South Vista Way Bridge. No trees will be removed during channel maintenance activities and no native vegetation will be removed from the southern half of the stream. Vegetation will be removed during a 5-year cycle so that freshwater marsh vegetation in one-fifth of the northern half of the stream will be maintained by hand every year. Additionally, annual vegetation maintenance activities will occur near three storm drain outfall structures within the project area. Freshwater marsh vegetation would be removed down to the base or above the water level, while leaving root systems intact. No dredging or other ground disturbance will occur as a part of the maintenance project. The project also includes non-native (exotic) vegetation removal and human generated waste removal throughout the 11.2-acre study area. A previous Streambed Alteration Agreement (1600-2004-0006-R5) for a similar project was issued by CDFW on February 11, 2004. The previous Agreement was extended on January 21, 2009, and expired on December 31,2013. The previously permitted maintenance project included vegetation removal within the northern half of Buena Vista Creek in the same location as this project, but did not include vegetation maintenance within the California Coastal Commission zone and did not include annual maintenance near the three outfall structures identified on Figure 1. PROJECT IMPACTS Existing fish or wildlife resources the project could substantially adversely affect include: AMPHIBIANS -Pacific treefrog (Hyla regil/a), western spadefoot (Spea hammondit); REPTILES -orange-throated whiptail (Aspidoscelis hyperytha), western fence lizard (Sceloporos occidentalis), two-striped garter snake (Thamnophis hammondil), common side-blotched lizard (Uta stansburiana); BIRDS-mallard (Anas platyrhynchos), Anna's hummingbird (Cs/ypte anna), killdeer (Charadrius vociferos), American crow (Corvus brachyrhynchos), yellow warbler (Dendroica petechia), southwestern willow flycatcher (Empidonax traillii extimus), American kestrel (Fa/co sparverius), black-crowned night heron (Nycticorax nycticorax), double-crested cormorant (Phalacrocorax auritus), Nuttall's woodpecker (Picoides nuttallit), downy woodpecker (Picoides pubescens), California towhee (Pipilo crissalis), light-footed clapper rail (Ra/lus longirostris levipes), Cassin's kingbird (Tyrannus vociferans), least Bell's vireo (Vi/90 be/Iii pusillus); MAMMALS-coyote (Csnis latrans), striped skunk (Mephitis mephitis), raccoon (Procyon /otot); PLANTS -mugwort (Artemisia douglasiana), coyote bush (Baccharis pilularis), mulefat (Baccharis sa/icifolia), flat-top buckwheat (Eriogonum fasciculatum), goldenbush (lsocoma menziesii), spiny rush (Juncus acutus), sandbar willow (Salix exigua), black willow (Salix gooddingiJ), arroyo willow (Salix /asiolepis), cattail (Typha spp.); and other riparian/wetland vegetation which provides habitat for those species, and all other aquatic and wildlife resources in the project vicinity. Notification #1600-2013-0135-RS Streambed Alteration Agreement Page 3 of 15 The adverse effects the project could have on the fish or wildlife resources identified above include: change in composition of channel materials; short-term release of contaminants (e.g., incidental from construction); change in water temperature; loss or decline of riparian and/or emergent marsh habitat; decline of vegetative diversity; colonization by exotic plant or animal species; loss or decline of instream channel habitat; disruption to nesting birds and other wildlife; direct take of terrestrial species; disturbance from project activity; change in shading or insolation leading to vegetative change; change in flow depth, width or velocity; and change in percolation. The project will routinely impact freshwater marsh habitat as well as the understory of southern willow scrub habitat during a 5-year vegetation maintenance cycle as described in Table 1. The 5.08-acre maintenance area currently supports 3.67 acres of freshwater marsh, 1.28 acres of southern willow scrub, and 0.13 acre open water. Table 1 Habitat Types Impacted During 5-Year Maintenance Cycle HabitatTyp4! Year1 Year 2 Year3 Year4 Years T 0181 (Acres) Freshwater Marsh 0.91 1.15 0.73 0.43 0.45 3.67 Southern Willow Scrub (understory only) -0.05 0.04 0.68 0.51 1.28 Open Water 0.13 ----0.13 Total 1.04 1.20 0.77 1.11 0.96 5.08 MEASURES TO PROTECT FISH AND WILDLIFE RESOURCES 1. Administrative Measures Permittee shall meet each administrative requirement described below. 1.1 Documentation at Project Site. Permittee shall make the Agreement, any extensions and amendments to the Agreement, and all related notification materials and California Environmental Quality Act {CEQA) documents, readily available at the project site at all times and shall be presented to CDFW personnel, or personnel from another state, federal, or local agency upon request. 1.2 Providing Agreement to Persons at Project Site. Permittee shall provide copies of the Agreement and any extensions and amendments to the Agreement to all persons who will be working on the project at the project site on behalf of Permittee, including but not limited to contractors, subcontractors, inspectors, and monitors. 1.3 Notification of Conflicting Provisions. Permittee shall notify CDFW if Permittee determines or learns that a provision in the Agreement might conflict with a Notification #1600-2013-0135-RS Streambed Alteration Agreement Page 4 of 15 provision imposed on the project by another local, state, or federal agency. In that event, CDFW shall contact Permittee to resolve any conflict. 1.4 Project Site Entrv. Permittee agrees that CDFW personnel may enter the project site at any time to verify compliance with the Agreement. 1.5 Aareed Work Activities. The agreed work includes activities associated with the Project Location and Project Description provided above. Specific work areas and mitigation measures are described on/in the plans and documents submitted by the Permittee with Notification of Lake or Streambed Alteration 1600-2013- 0135-R5 for the Buena Vista Creek Channel Maintenance Project as well as the Supplemental Environmental Impact Report for the Buena Vista Creek Channel Maintenance Project, and shall be implemented as proposed unless directed differently by this Agreement. 1.6 Payment of Outstanding Fees. Permittee shalf submit a fee for each individual maintenance project to CDFW prior to initiation of such project. The fee shall be based on CDFWs Agreement for Routine Maintenance fees as described in the California Code of Regulations, Title 14, section 699.5. 2. Avoidance and Minimization Measures To avoid or minimize adverse impacts to fish and wildlife resources identified above, Permittee shall implement each measure listed below. Resource Protection 2. 1 Staging Areas. Staging/storage areas for equipment and materials shall be located outside of the streamnake. 2.2 Veaetation Maintenance Area Demarcation. Prior to each maintenance activity, a qualified biologist shall mark the authorized vegetation maintenance area. The demarcation shall be located in a manner where no more than half of the distance of any lateral stream transect is within the vegetation maintenance area. No maintenance activities shall occur in the southern half of the channel other than exotic vegetation removal, human generated debris removal, and activities related directly to biological surveys and monitoring. 2.3 Bioloaical Monitor. A qualified biological monitor shall be on-site daily during vegetation removal activities. The biological monitor shall survey the vegetation maintenance area for wildlife species prior to vegetation removal. If any life stages of any native vertebrate species are found in the area of vegetation removal, the biological monitor shall ensure the wildlife is allowed to leave the maintenance area on its own accord, or physically relocate the animal out of harm's way to the nearest undisturbed areas with suitable habitat within the 11.2- Notification #1600-2013-0135-RS Streambed Alteration Agreement Page 5 of 15 acre study area. The biological monitor shall possess appropriate permits and/or authorization prior to disturbing or handling any protected species. 2.4 No Native Tree Removal. No native trees shall be removed as a result of the project. Only those branches in the lower 6 feet of any tree and less than 2 inches in diameter may be pruned to accommodate project activities. Understory freshwater marsh vegetation such as cattails and sedges may be pruned only as needed to accommodate project activities. No vegetation shall be removed by excavation or cutting off below the soil. All pruned material shall be removed from the area and properly disposed of. 2.5 Vegetation Removal at Storm Drain Outfall Structures. Permittee proposes annual freshwater marsh removal near three storm drain outfall structures within the project area identified on Figure 1. Vegetation maintenance areas adjacent to each outfall structure shall not exceed: 400 square feet adjacent to each outfall identified as Outfall1 and Outfall2; and 0.05-acre adjacent Outfall 3. 2.6 Stockpiling Removed Vegetation. Vegetation removed from the stream shall not be stockpiled in the stream bed or on its banks. All removed vegetation and debris shall be disposed of according to State and local laws and ordinances. 2.7 Native Non-Woodv Vegetation. Native non-woody vegetation (e.g. cattails and sedges) shall be allowed to grow in the channel bottom between maintenance activities. Native non-woody vegetation may be cut down to a level above the current water line, and the root system shall be avoided and remain intact. The use of herbicide to inhibit growth or kill cattails or sedges is prohibited. 2.8 No Grubbing of Root Zone. No vegetation shall be removed by excavation, grubbing or cutting of stems below the ground level. 2.9 Removal of Exotic Veaetation. Exotic vegetation shall be controlled in the 11.2- acre study area within the stream during annual maintenance activities, and more often if required to keep exotic vegetation under control.· At the end of each annual vegetation maintenance event, exotic vegetation shall not represent more than 5-percent absolute coverage of the 11.2-acre study area and perennial exotic vegetation shall not represent more than 1 percent of the same area. 2.10 Remove Exotic Vegetation by Hand. Whenever possible, exotic vegetation shall be removed by hand or by hand tools rather than by chemical means. Where control of non-native vegetation is required within the bed, bank, or channel of the stream, the use of herbicides is necessary, and there is a possibility that the herbicides could come into contact with water, Permittee shall employ only those herbicides which are approved for aquatic use. If surfactants are required, they shall be restricted to non-ionic chemicals which are approved for aquatic use. Notification #1600-2013-0135-RS Streambed Alteration Agreement Page6of15 2.11 Disposal of Exotic Veaetation. Any exotic vegetation removed shall be disposed of legally in a manner which prevents its reestablishment and in a manner that does not negatively affect other sensitive native habitat 2.12 Hand Tools Defined. Hand tools for this Agreement are described as: shears, clippers, machetes, scythes, sickles, knives, loppers, trimmers, chainsaws or other equipment carried into the stream by hand. 2.13 Native Planting and Revegetation. If exotic vegetation removal results in significant areas of bare ground, planting and/or seeding of native species may occur in order to keep exotic vegetation from invading those bare areas, but is not required as a part of the project. 2.14 Herbicide Mixing. Herbicide mixing sites shall only be located in areas devoid of vegetation, and where there is no potential of a spill reaching a vegetated area or a stream, for example avoid mixing at a storm water-inlet. 2.15 Herbicide Use in Aquatic Environment. Any herbicide used where there is the possibiiHy that the herbicide could come into direct contact with water shall be approved for use in an aquatic environment. Great care shall be taken to avoid contact with native vegetation, and the herbicide shall only be applied on calm days to prevent airborne transfer. 2.16 Clean All Equipment Before Entering Stream. Permittee shall clean all equipment of soil containing seed and plant material prior to entry into the streambed to prevent the spread of invasive exotic plant species from adjacent areas or other sites where equipment may have been previously used. Wildlife and Habitat Protection 2. 17 Encountered Wildlife. If any wildlife is encountered during project activities, the wildlife shall be allowed to leave the maintenance area on its own accord, or be physically relocated by the biological monitor out of harm's way to the nearest undisturbed areas with suitable habitat within the 11.2-acre study area. The biological monitor shall possess appropriate permits and/or authorization prior to disturbing or handling any protected species. 2.18 Protected Species. This Agreement does not authorize take, incidental or otherwise, of any protected species. For the purpose of this Agreement, "protected species• means the following: a species fully protected under state law; a candidate species or species listed as threatened or endangered under the California Endangered Species Act (CESA; Fish & G. Code § 2050 et seq.) and/or Endangered Species Act (ESA; 16 U.S. C.§ 1531 et seq.); a species identified by CDFW as a species of special concern; or any other species for which take is prohibited under state or federal law. No direct or indirect impacts Notification #1600-2013-0135-RS Streambed Alteration Agreement Page 7 of 15 shall occur to any protected species, except as may be authorized by a Natural Community Conservation Plan or one or more individual permits that authorize such impacts. 2.19 Nesting Bird Avoidance. To avoid impacts to nesting birds, native vegetation removal activities adjacent to nesting habitat shall not take place within the bed, bank, or channel of the stream from March 15 through September 15. 2.20 Raptor Avoidance. Prior to any vegetation maintenance activity during the raptor nesting season, (as early as January 1st to August 31), a qualified biologist shall conduct two site surveys for active nests within 1 week prior to any scheduled vegetation maintenance activity. If an active nest is located, then no vegetation maintenance activity shall be conducted within a 500 foot radius from the nest until the young have fledged and are independent of the adults. 2.21 Exotic Vegetation Removal during Bird Nesting Season. To control exotic vegetation within the study area, the Permittee may remove non-native vegetation from the stream from March 15 through September 15 if a qualified biologist conducts focused nesting surveys prior to the work. Three focused surveys for active nests shall occur on separate days starting within 7 days, with the final survey occurring within 48 hours prior to the work. The biologist must have previous experience in nesting surveys for special status bird species known to occur in the area. The results of the surveys shall be submitted to the CDFW prior to any maintenance activity in the form of a written report and shall include the following information; dates of survey, total field time of survey efforts, map of survey routes, names of investigators, and if any active nests were found. If the survey identifies an active nest, a buffer shall be established between the maintenance activities and the active nest so that nesting activities are not interrupted. A qualified biologist shall prepare and submit to CDFW a Bird Management and Monitoring Plan which includes survey results and establishes the necessary buffers to avoid take of nest as defined in FGC 3503 and 3503.5. Each buffer shall be delineated by temporary fencing or flagging, and shall remain in effect throughout the maintenance activity or until the nest is no longer active. Each buffer shall be a determined based upon the life history of the individual species, sensitivity to noise and general disturbance, current site conditions (screening vegetation, terrain, etc.}, ambient levels of human activity, the various project-related activities, and other features. Permittee, or any person acting on behalf of Permittee, is not relieved from complying with FGC sections 3503 (bird nests and eggs) and 3503.5 (birds of prey). 2.22 Bat Protection -Bridges. Prior to work commencing 300 feet of any bridge, the bridge shall be surveyed for bats by a qualified bat biologist to determine if an active bat roost is present. If an active bat roost is found, vegetation maintenance activities within 300 feet of the bridge operations shall not be initiated without specific notice to and consultation with CDFW to assess the risk of disturbance to the bat roost and develop an avoidance/minimization strategy. Notification #1600-2013-0135-RS Streambed Alteration Agreement Page 8 of 15 CDFW reserves the right provide additional provisions to this agreement designed to protect nesting/roosting bats. Bat surveys must be conducted within 7 days prior project commencement. Impact minimization measures must be implemented prior to project activities. 2.23 No Night Work. To allow the stream to continue to function as an effective wildlife corridor, maintenance activities shall be limited to the period of daylight hours; no night work is authorized unless otherwise agreed to by the CDFW. Equipment and Access 2.24 Speed Limit. A 15-mile per hour speed limit shall be observed on dirt access roads to reduce dust and allow reptiles and small mammals to disperse. 2.25 No Wheeled Equipment in Wetted Portion of the Stream. Vehicles shall not be driven or operated in water covered portions of a stream or lake, or where wetland vegetation, riparian vegetation, or aquatic organisms may be destroyed. Fill and Spoil 2.26 Stream Materials. Rock, gravel, and/or other materials shall not be imported to, taken from or moved within the bed or banks of the stream except as otherwise addressed in this Agreement. 2.27 Deposition of Fill. Depositing fill into the stream is not a covered activity of this Agreement, thus is subject to separate notification pursuant to FGC 1600 et seq. Structures 2.28 Authorized Structures. This Agreement does not authorize the construction of any temporary or permanent dam, structure, flow restriction or fill. Pollution. Litter. and Clean-Up 2.29 Litter and Pollution. Permittee shall comply with all litter and pollution laws. All contractors, subcontractors and employees shall also obey these laws and it shall be the responsibility of the Permittee to ensure compliance. 2.30 Secure Trash Receptacles. Permittee shall use fully covered trash receptacles with secure lids (wildlife proof) to contain all food, food scraps, food wrappers, beverage and other miscellaneous trash. AHernatively, standard trash receptacles may be used during the day, but must be removed each night. 2.31 Stationarv Equipment. Stationary equipment such as motors, pumps, generators, and welders located within or near the stream shall be positioned over drip pans. Stationary heavy equipment shall have suitable containment to handle a catastrophic spillneak. Notification #1600-2013-0135-RS Streambed Alteration Agreement Page 9 of 15 2.32 Equipment Maintenance and Fueling. No equipment maintenance or fueling shall be done within or near any stream channel where petroleum products or other pollutants from the equipment may enter these areas. 2.33 Equipment and Vehicle Spills and Contaminants. Any equipment or vehicles driven or operated within or near the stream shall be checked daily, to prevent leaks of materials that if introduced to water could be deleterious to aquatic life. Permittee shall maintain all vehicles and equipment in proper working condition to minimize fugitive emissions and accidental spills from motor oil, antifreeze, hydraulic fluid, grease, and other fluids or hazardous materials. All fuel or hazardous waste leaks, spills, or releases shall be stopped or repaired immediately and cleaned up at the time of occurrence. Permittee shall be responsible for spill material removal and disposal to an approved offsite landfill and spill reporting to the permitting agencies. A spill containment kit shall be available on site for all maintenance activities. 2.34 Site Cleanup. When operations are completed, any excess materials or debris shall be removed from the work area. 3. Compensatory Measures To compensate for adverse impacts to fish and wildlife resources identified above that cannot be avoided or minimized, Permittee shall implement each measure listed below. 3.1 Mitigation for Authorized Impacts. Compensatory mitigation is not required as part of this Agreement. 3.2 Mitigation for Unauthorized Impacts. Permittee 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 CDFW, and may include creation, restoration, enhancement and/or preservation. 4. Reporting Measures Permittee shall meet each reporting requirement described below. 4.1 Notification Prior to Work. Permittee shall notify CDFW, in writing, at feast 5 days prior to initiation of each maintenance activity. Notification shall be sent to CDFWs South Coast Office at the address on page 1, ATTN: Streambed Alteration Program -SAA # 1600-2013-0135-R5 or alternatively by electronic mail to R5LSACompliance@wildlife.ca.gov. 4.2 Sensitive Species Observations. Permittee shall be responsible for reporting all observations of threatened /endangered species or species of special concern to Notification #1600-2013-0135-RS Streambed Alteration Agreement Page 10 of 15 CDFW's Natural Diversity Data Base (CNDDB) within 10 days of sighting. The form and instructions for completing the form and submitting the information are available on-line at http://www.wildlife.ca.gov/biogeodata/cnddb/submitting_data_ to_cnddb.asp. In addition to sending the information to CNDDB a copy should be sent to CDFW's South Coast Office at the address above, ATTN: Streambed Alteration Program -SAA #1600-2013-0135-R5. 4.3 Required Annual Reporting. An annual report shall be submitted to CDFW each year for the duration of the maintenance project. This report shall include photos of the maintenance and exotic vegetation removal areas along with a summary documenting the success of the exotic vegetation removal efforts. The annual report shall also include a visual estimate of exotic vegetation cover within the 11.2-acre study area, identifying approximate locations of exotic vegetation on photo aerial maps which remain after each annual vegetation maintenance event. CONTACT INFORMATION Any communication that Permittee or CDFW submits to the other shall be in writing and any communication or documentation shall be delivered to the address below by U.S. mail, email, or to such other aqdress as Permittee or CDFW specifies by written notice to the other. To Permittee: City of Carlsbad Sherri Howard 1635 Faraday Avenue Carlsbad, California 92008 (760) 602-2756 sherri.howard@carlsbadca.gov ToCDFW: California Department of Fish and Wildlife South Coast Region 3883 Ruffin Road San Diego, California 92123 Attn: Lake and Streambed Alteration Program Notification #1600-2013-0135-R5 Notification #1600-2013-0135-RS Streambed Alteration Agreement Page 11 of 15 LIABILITY Permittee shall be solely liable for any violations of the Agreement, whether committed by Permittee or any person acting on behalf of Permittee, including its officers, employees, representatives, agents or contractors and subcontractors, to complete the project or any activity related to it that the Agreement authorizes. This Agreement does not constitute CDFWs endorsement of, or require Permittee to proceed with the project. The decision to proceed with the project is Permittee's alone. SUSPENSION AND REVOCATION CDFW may suspend or revoke in its entirety the Agreement if it determines that Permittee or any person acting on behalf of Permittee, including its officers, employees, representatives, agents, or contractors and subcontractors, is not in compliance with the Agreement. Before CDFW suspends or revokes the Agreement, it shall provide Permittee written notice by certified or registered mail that it intends to suspend or revoke. The notice shall state the reason(s) for the proposed suspension or revocation, provide Permittee an opportunity to correct any deficiency before CDFW suspends or revokes the Agreement, and include instructions to Permittee, if necessary, including but not limited to a directive to immediately cease the specific activity or activities that caused CDFW to issue the notice. ENFORCEMENT Nothing in the Agreement precludes CDFW from pursuing an enforcement action against Permittee instead of, or in addition to, suspending or revoking the Agreement. Nothing in the Agreement limits or otherwise affects CDFWs enforcement authority or that of its enforcement personnel. OTHER LEGAL OBLIGATIONS This Agreement does not relieve Permittee or any person acting on behalf of Permittee, including its officers, employees, representatives, agents, or contractors and subcontractors, from obtaining any other permits or authorizations that might be required under other federal, state, or local laws or regulations before beginning the project or an activity related to it. This Agreement does not relieve Permittee or any person acting on behalf of Permittee, including its officers, employees, representatives, agents, or contractors and subcontractors, from complying with other applicable statutes in the FGC including, but Notification #1600-2013-0135-RS Streambed Alteration Agreement Page 12 of 15 not limited to, FGC sections 2050 et seq. (threatened and endangered species), 3503 (bird nests and eggs), 3503.5 (birds of prey), 5650 (water pollution), 5652 (refuse disposal into water), 5901 (fish passage), 5937 (sufficient water for fish), and 5948 (obstruction of stream). Nothing in the Agreement authorizes Permittee or any person acting on behalf of Permittee, including its officers, employees, representatives, agents, or contractors and subcontractors, to trespass. AMENDMENT CDFW may amend the Agreement at any time during its term if CDFW determines the amendment is necessary to protect an existing fish or wildlife resource. Permittee may amend the Agreement at any time during its term, provided the amendment is mutually agreed to in writing by CDFW and Permittee. To request an amendment, Permittee shall submit to CDFW a completed CDFW "Request to Amend Lake or Streambed Alteration" form and Include with the completed form payment of the corresponding amendment fee identified in CDFW's current fee schedule (see Cal. Code Regs., tit. 14, § 699.5). TRANSFER AND ASSIGNMENT This Agreement may not be transferred or assigned to another entity, and any purported transfer or assignment of the Agreement to another entity shall not be valid or effective, unless the transfer or assignment is requested by Permittee in writing, as specified below, and thereafter CDFW approves the transfer or assignment in writing. The transfer or assignment of the Agreement to another entity shall constitute a minor amendment, and therefore to request a transfer or assignment, Permittee shall submit to CDFW a completed CDFW "Request to Amend Lake or Streambed Alteration" form and include with the completed form payment of the minor amendment fee identified in CDFW's current fee schedule (see Cal. Code Regs., tit. 14, § 699.5). EXTENSIONS In accordance with FGC section 1605(b), Permittee may request one extension of the Agreement, provided the request is made prior to the expiration of the Agreement's term. To request an extension, Permittee shall submit to CDFW a completed CDFW "Request to Extend Lake or Streambed Alteration" form and include with the completed form payment of the extension fee identified in CDFW's current fee schedule (see Cal. Code Regs., tit. 14, § 699.5). CDFW shall process the extension request in accordance with FGC 1605(b) through (e). Notiftcatlon #1600-2013-0135-RS Streambed Alteration Agreement Page 13 of 15 If Permittee fails to submit a request to extend the Agreement prior to its expiration, Permittee must submit a new notification and notification fee before beginning or continuing the project the Agreement covers (FGC section 1605(1)). EFFECTIVE DATE The Agreement becomes effective on the date of CDFW's signature, which shall be: 1) after Permittee's signature; 2) after CDFW complies with all applicable requirements under the California Environmental Quality Act (CEQA); and 3) after payment of the applicable FGC section 711.4 filing fee listed at http://www.wildlife.ca.gov/habcon/ceaalceaa changes.html. TERM This Agreement shall expire on November 30, 2019 unless it is terminated or extended before then. All provisions in the Agreement shall remain in force throughout its term. Permittee shall remain responsible for implementing any provisions specified herein to protect fish and wildlife resources after the Agreement expires or is terminated, as FGC section 1605(a)(2) requires. EXHIBITS The documents listed below are included as exhibits to the Agreement and incorporated herein by reference. Figure 1. •storm Drain Outfall Locations· AUTHORITY If the person signing the Agreement (signatory) is doing so as a representative of Permittee, the signatory hereby acknowledges that he or she is doing so on Permittee's behalf and represents and warrants that he or she has the authority to legally bind Permittee to the provisions herein. AUTHORIZATION This Agreement authorizes only the project described herein. If Permittee begins or completes a project different from the project the Agreement authorizes, Permittee may be subject to civil or criminal prosecution for failing to notify CDFW in accordance with FGC section 1602. Notification #1600-2013-0135-R5 Streambed Alteration Agreement Page 14 of 15 CONCURRENCE The undersigned accepts and agrees to comply with all provisions contained herein. FOR CITY OF CARLSBAD Sherri Howard Associate Engineer Gail K. Sevrens Environmental Program Manager Prepared November 2014 by Kevin Hupf, Environmental Scientist Date Date Notification .16~2013-0135-RS SlreM!bed Altetation ~I Page 15 of 15 il I I J CALIFORNIA COASTAL COMMISSION IAN DlaO MD 717S MeTROPOLITAN DRIVE, sum! 1DI IAN DIHO, OA 111111-<1421 (111) 717.ZS70 Sherri Howard City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92008 Date: June 17.2014 Applicant: City of Carlsbad NOTICE OF ACCEPTANCE Document or Plans: Final Plans and Assumntion of Risk. Waiver of Liabilitv and Indemnity Submitted in compliance with Special Condition(s) No(s).: 1 and 6 of Coastal Development Pennit No. x.6·_,1.:.3-0...:..L.7A.I13~--- Remaining Special Condition(s): None 11 EXHIBIT 311 IDMUND G.IROWN,.IR., ....,_. Material submitted in compliance with said Special Condition(s) of your development pennit has been reviewed and found to fulfLil the requirements of said condition(s). Your submitted material and a copy of this letter have been made a part of the pennanent file. Sincerely, Kanani Brown Coastal Program Analyst n (G.SIII~a'KANANI'Pcrnutll013\5-13-071l(BIICII\'IIVislaCrackCIIaaciM•~)6.17.14Nallceaf~doc') STATE OF CALFORNIA ·NATURAL RESOURCES AGENCY CALIFORNIA COASTAL COMMISSION ........ O..t lllllrlat Ollloe 1S7111111r J ... OIM, .... 111 ......... a.llfenllell'lllo44lll PH (ttll 18741711 FAX (ttll 187•1114 EDMUND G. BROWN, JR., GOVERNOR Page 1 Date: April26, 2014 Permit Application No.: 6·13..0713 COASTAL DEVELOPMENT PERMIT On March 12, 2014, the Csllfomla Coastal Commission granted to Sherri Howard, City of Carlsbad this permit subject to the attached Standard and Special conditions for development consisting of Implement ongoing maintenance program within the Buena VIsta Creek channel consisting of hand removal of vegetation to Increase ftood protection of the adjacent properties and Improve water quality In the Buena VIsta Creek and Lagoon more specifically desatbed in the application filed in the Commission offices. The development Is within the coastal zone at Buena Vista Creek, Carlsbad, San Diego, (San Diego County) Issued on behalf of the California Coastal Commission by ACKNOWI..EDGMENT: CHARLES LESTER, Executive Director Kananl Brown Coastal Program Analyst The undersigned permittee acknowledges receipt of this permit and agrees to abide by all terms and conditions thereof. The undersigned permittee acknowledges that Government Code Section 818.4 which states in pertinent pa~ of that: •A Public entity Is not liable for Injury caused by the Issuance ... of any permit ... • applies to the Issuance of this permit IMPORTANT: THIS PERMIT IS NOT VALID UNLESS AND UNTIL A COPY OF THE PERMIT WITH THE SIGNED ACKNOWLEDGEMENT HAS BEEN RETURNED TO THE COMMISSION OFFICE. 14 Cal. Admin. Code Section 13168(a). Date: Col \f¢120\\.f Signature 6k.JM.\, ~ Page2 Date: Aprll25, 2014 Permit Application No.: 6-13-0713 COASTAL DEVELQPMENT PERMIT STANDARD CONpmQNS; 1. Notice of Rplot and Acknowledgment The permit is not valid and development shall not commence until a copy of the permit, signed by the permittee or authorized agent, acknowledging receipt of the permit and acceptance of the terms and conditions, Is returned to the Commission office. 2. Exolratlon. If development has not commenced, the permit will expire two years from the date on which the Commission voted on the application. Development shall be pursued In a diligent manner and completed In a reasonable period of time. Application for extension of the permit must be made prior to the expiration date. 3. lntemf!tatlon. Any questions of Intent or interpretation of any condition will be resolved by the Executive Director or the Commission. 4. Aslianmtnt The permit may be assigned to any qualified person, provided assignee files with the Commission an affidavit accepting all terms and conditions of the permit. 5. Terms and Conclltlona Run with the band. These terms and conditions shall be perpetual, and It Is the intention of the Commission and the permittee to bind all future owners and possessors of the subject property to the terms and conditions. SPECIAL CONDmONS; This permit is granted subject to the following special conditions: 1. Final PlanL PRIOR TO ISSUANCE OF THE COASTAL DEVELOPMENT PERMIT, the applicant shall submit to the Executive Director for review and written approval, final plans for the development. Said plans shall be in substantial conformance with the preliminary plans submitted on September 5, 2013. The applicant shall undertake development In accordance with the approved final plans. Any proposed changes to the approved final plans shall be reported to the Executive Director. No changes to the approved final plans shall occur without a Coastal Commission approved amendment to this coastal development permit unless the Executive Director determines that no amendment is legally required. 2. Pennlt Tenn. A. This coastal development permit authorizes development on a temporary basis only. The development Is authorized for a period of five (5) years, commencing upon the date of issuance of Coastal Development Permit No. 6-13-0713, after which time the authorization for continuation and/or retention of any development approved as part of this permit shall cease. After the authorization for the development expires, any vegetation removal within the project area will require either the Issuance of a new coastal development permit or an amendment to this coastal development permit. Page3 Date: April25, 2014 Permit Application No.: 6-13-0713 COASTAL DEVELOPMENT PERMIT B. If the applicant does not obtain a coastal development permit or amendment from the California Coastal Commission to continue the creek channel maintenance program prior to the date that authorization for the development expires, the City shall cease all vegetation removal activities. C. All development must occur in strict compliance with the proposal as set forth in the application for permit, subject to any special conditions. Any deviation from the approved project plans must be submitted for review by the Executive Director to determine whether an amendment to this coastal development permit Is legally required. 3. Sensitive Species Surveys. To avoid potential impacts to breeding activities of least Bell's vireo, migratory songbirds, and other bird species associated with the adjacent sensitive open water, wetland, riparian, and coastal sage scrub habitat, work shall be avoided during the bird nesting season, between February 1st" and September 15" of any year, unless authorized in writing by the California Department of Fish and Wildlife (CDFW) and/or the U.S. Fish & Wildlife Service. If work Is allowed during the nesting season of such species, a bird monitor shall be onsite while work occurs, and any work will stop or move if the monitor finds that such species are being negatively affected by construction. 4. Required Agency Permits and Approvals. PRIOR TO COMMENCEMENT OF VEGETATION REMOVAL, the applicant shall submit to the Executive Director, all necessary local, state, and/or federal discretionary permits, including approval from the California Department of Fish and Wildlife. Any mitigation measuras or other changes to the project required through said permits shall be reported to the Executive Director and shall become part of the project. The Executive Director shall determine if such modifications, If any, require an amendment to this permit or a separate coastal development permit 5. Mitigation Monitoring and Reporting Program. To protect the riparian and wetland habitat within and adjacent to the proposed project' site, the applicant shall comply with the mitigation measures Identified In the Mitigation Monitoring and Reporting Program in the Final Supplemental Environmental Impact Report. 6. Assumption of Risk, Waiver of Liability and Indemnity. By acceptance of this pennlt, the applicant acknowledges and agrees (I) that the site may be subject to hazards from flooding; (II) to assume the risks to the applicant and the property that Is the subject of this pennlt of injury and damage from such hazards in connection with this permitted development; (iii) to unconditionally waive any claim of damage or liability against the Commission, Its officer&, agents, and employees for Injury or damage from such hazards; and (iv) to Indemnify and hold harmless the Commission, Its officers, agents, and employees with respect to the Commission's approval of the project against any and all liability, claims, demands, damages, costs (Including costs and fees Incurred in defense of such claims), expenses, and amounts paid in settlement arising from any injury or damage due to such hazards. PRIOR TO ISSUANCE OF THE COASTAL DEVELOPMENT PERMIT, the applicant shall submit a written agreement, In a fonn and content acceptable to the Executive Director, incorporating all of the above terms of this condition. Page4 Date: April 25, 2014 Permit Application No.: 6-13-0713 COASTAL DEVELOPMENT PERMIT 7. Operations and Maintenance Responsibilities. It shall be the applicant's responsibility to ensure that the following occurs during all project operations: (1) Maintenance crews shall be trained in native habitat identification and the parameters of the maintenance program, with emphasis on trimming of vegetation to allow for flood control as opposed to complete root removal. (2) No construction equipment shall be stored in the project area, except during active project operations. (3) All vegetation trimming shall occur within City easements. If any maintenance activities must be conducted outside of City easement limits, then the City shall obtain permission from the land owner prior to beginning any such work. (4) The proposed project shall not interfere with public access on adjacent trails in any manner. G:\San Diego\Permlts 2000\6-13-0713p.doc • 1 -· Notice of Determination "EXHIBIT 4 11 • To: 181 Office of Planning and R.csearch P.O. Box 3044 From: CITY OF CA.RLSBAD PluniDI Division Sacramento. CA 95812-3044 1635 l.l'araday Avenue 1 3 0 ·1 U 0 Carlsbad, CA !n008 181 SD County Clerk ,. D " ,. I'll\ (760) 602-44i00 -----0·., . Attn: Jennit'et" Samuela EmeiiJ~~ ..:.,:: CJR CITY OF CARLSBA Mail Stop A-33 ~ I) JUN 18 2013 1600 Pacific Highway JUN 14 Z013 . san Diego, CA 921 ot J. Scott PLANNINa oEPARlMENT . B'l Project No: •• •u.-.•~• -'J J.l'ilblg of Notice of Dete1111inatioa in eoapliaDee WitifA'oa 11108 or 1115:1 of the Public Resourecs Code. Buena Vista Creek Channel Maintenance Project Supplemental Program BJR. Project ntle 2002101015 City of Carlsbad, Barbara Kennedy. Associate Planner (760) 602-4626 State Clearinghoue No. Lead Agency, Contaet Penon Telephone Number City of Carlsbad, San DiegO County Project Locations (iadade County) Name of AppUeant: City of Carlsbad Utilities Diyision. Sbeni Howard, Associate Engineer Applieaat's Address: 1635 Faraday Awmno Carlsbad. CA 92008 AppUeant's Telep.oae N111Dber: 060) 602-2756 . Project Deserlptioa: Maintenance and flood control activities within Buena Vista Creek as authorized under a current California Department of FISh and Game (CDFG) Streambed Alteration Agreement (SAA). The proposed project evaluated in the SBIR. would also implement flood control activities in areas not previously considered in the 2003 PEIR, including adding tho area east of the Jefferson Street Bridge, which is within the coastal zone. This is to advise that tho City of Cu:Isbad bas approved the above described project on May 28, 2013, and has made the following determination regarding the above described project. 1. The project will not ha~ a significant effect on the environment. 2. D An Environmental Impact Report (EIR) was prepared for this project pursuant to the provisions of CBQA. 0 A Negative Declaration was prepared for this project pursuant to tho provisions of CEQA . . ~ This project was reviewed previously and a Supplemental Proanm EIR was prepared pursuant to the provisions of CBQA. 3. Mitigation measures were made a condition of the approval of the project 4. A mitigation reporting or monitoring plan wu adopted for this project. 5. :A statement of Overriding Considerations wu not adopted for this project. 6. Findings were made pursuant to the provisions of CEQA. This is to certifY that the final SUpplemental Program EIR 02-83{Al with comments and ~nses and record of project approval is available to the General Public at THE CITY OF <(Alu.sBAD • ~2/t, . b-/2-/J. DON NBU, City Planner Date Date received for filing at OPR: Revised 04/12 Y • a f# Slate of Cellfoma-Th8 Re&OII'Ce& Afi8W,:f DEPARTMENT OF RSHANDWILDUFE 2013 ENVIRONMEN'rAL FILING FEE CASH RECEIPT SEE I STRUcnONS ON REVERSE. TYPE OR PRINT CLEARLY LEADAGENCV CITY OF CARLSBAD, PLANNING DIVISION COUNTYISTAlEAGENCVOF FlUNG SAN DIEGO RECEPTt SD2013 0468 STATE CLEARING HOUSEfiiWbl*l 2002101015 DATE 0611412013 OOCI.JNENTNUMIER "20130100* PROJECT11TLE UPPLEMENTALPROGRAM E R PROJECTAPPUCANTNAME CITY OF CARLSBAD, UTILITIES DMSION, SHERR! HOWARD PROJECTAPPLICANTADDRESS CITY 1636 FARADAY AVENUE CARLSBAD PROJECT APPUCANT (Checlc epproptfate box): e~ Locat Pubic Agency o School Dl&trlct a 0111er Special District CHECK APPUCABLE FEES: IZI Envlranmenlallmpacl Report CJ Negative Declaration [J Appllcallon Fee Water Diversion (Stele ~ Resoun:.es Conl1rJI Boerd Only} [J ProjeGts SUbject to Cerlltled Regtletory Program 12:1 County Administrative Fee CJ Project lhatls exempt from fees [J NOUce of Exemption [J DFG No Efect Detennlnatlon (Form Attached) a Other __________________________ ___ PAYMENT METHOD: CJ. Cuh [J Credit I2J Cheek Q Other 246307 SIGNAlURE X J.Scott ORIGINAL ·PROJECT APPLICANT PHCN:NUMBER 760-602-4626 STATE ZIPCODE CA 92008 o state Agency a PriVa\8 entity $2,995.25 $ $2,995.26 $2,156.25 $ $850.00 $ $1,018.50 $ $150.00 $ $50.00 $ _____ _ TOTALRECEIVED $ ---...:.$3-.,04;;..;.;;;.;5.2;;.;5'- tlttllllllllllllltlt m11 m111t1m 1101 COPV -COUNTY CLERK .. YIUIOORHO. V001844 CITY OF CARLSBAD 16315 fnday.Averul• Cerllbad, CA82CIOIJa'nt41 • (760) 1102-2430 CllaCitHO. 246307 t·!~~ .. 1~~~)1; (ii i~~!.~_:;-~~:IJ;:=~~l~;Q;ili~'~G~~~~~~;~-_!? ~~t)~l t-1 ~~~-~~EJL:J:~~~jt.it~_~;I_.=.~_~ _ -~~7;:c0~f~~ .~ ~-,~~r;:-_:_-:: ~r;~-~-\~1 ;t)~l~;.; ~ ~5·i:{);~ pS/21/:1.3 0892?4 ·1636312 7!150 DPW PBBB I'OR ~ BtJBHA V.IS'l'A 3,045.25 .. .. . . . . . . . . . .. . . . . . 'l'otal.t 3,045.25 .. . ... -···-~-------' '--------------·· "EXHIBIT 5" Mitigation Monitoring and Reporting Program for the Buena Vista Creek Channel Maintenance Project Prepared for: City of Carlsbad 1635 Faraday Avenue Carlsbad, California 92008 Contact: Barbara Kennedy Prepared by: Dudek 605 Third Street Encinitas, California 92024 MAY 2013 Section Buena Vista Creek Channel Maintenance Project Mitigation Monitoring and Reporting Program TABLE OF CONTENTS Page No. INTRODUCTION .....................................•••••.............................................•.•................................ 1 Roles and Responsibilities .................................................................................................. 2 Mitigation Monitoring Team .............................................................................................. 2 Program Procedural Guidelines .......................................................................................... 4 Actions in Case ofNoncompliance ..................................................................................... 5 Summary of Project Impacts and Mitigation Measures ...................................................... 5 TABLE 1 Mitigation Measures ............................................................................................................ 6 Exhibit "EIR-8" May 2013 Buena Vista Creek Channel Maintenance Project Mitigation Monitoring and Reporting Program INTRODUCTION The City of Carlsbad (City) is the lead agency responsible for authorizing construction/ maintenance of the Buena Vista Creek Channel Maintenance Project. Section 21081.6 of the Public Resources Code requires a public agency to adopt a mitigation monitoring and reporting program (MMRP) when it approves a project that is subject to the preparation of an Environmental Impact Report (EIR) and where the EIR for the project identifies significant adverse environmental effects. The California Environmental Quality Act (CEQA) Guidelines Section 15097 further defines a lead agency's responsibility to ensure that the mitigation measures identified in the Subsequent Environmental Impact Report (SEIR) to reduce impacts to less than significant are implemented during the life of the project. The project proposes a maintenance regime to reduce flooding along the Channel Maintenance District. The SEIR includes measures to reduce or avoid potential environmental impacts associated with the project. This MMRP is designed to ensure compliance during construction of the proposed project through ongoing monitoring and reporting of adopted mitigation measures. The primary goal of the MMRP is to ensure that mitigation measures, specified in the EIR, are adequately implemented during final design, construction, and operation of the project. This plan includes specific actions to be taken to implement each mitigation measure, information on monitoring requirements, and the timing of implementation. This report serves a dual purpose to verify completion of the mitigation measures adopted as a condition of approval of the Buena Vista Creek Channel Maintenance Project, and to generate information of the effectiveness of the mitigation measures to guide future decisions. The program includes the following: • Roles and responsibilities • Monitoring team qualifications • Specific monitoring activities • Reporting system. A maintenance program is necessary to provide flood protection for the existing Maintenance District located along the Buena Vista Creek Channel. While hand removal of vegetation within one-half of the channel over a 5-year period would not provide for 100-year flood protection for the properties and parcels within the Maintenance District, this maintenance regime would meet the goals and objectives of the project while avoiding and minimizing impacts to special-status biological resources in the channel and to water quality. The proposed maintenance program consists of hand removal of vegetation within the northern half of the channel between the South Exhibit "EIR-B" May 2013 Buena Vista Creek Channel Maintenance Project Mitigation Monitoring and Reporting Program Vista Way bridge and the Jefferson Street bridge. The vegetation would be removed in the northern half of the channel over a period of 5 years so that one-fifth of the vegetation in the northern half of the channel would be removed by hand every year. Thus, each year, one-tenth of the vegetation in the channel project site would be removed. Vegetation would not be removed between March 15 to September 15 to avoid impacts to most nesting birds in accordance with the Migratory Bird Treaty Act. Vegetation removal would occur at the end of the growing season/beginning of the dormant season. The vegetation would be cut at ground level or the water surface and no ground disturbance would occur during the lifetime of the project. The vegetation would be hauled out of the channel and disposed of appropriately. For purposes of vegetation removal, maintenance vehicles will use the existing access road that runs parallel to the northern bank of the channel. The City will continue to survey the surface elevation of the channel every 4 years to track the channel bottom elevation changes due to increased silt. If the silt levels exceed 2 feet above the design elevations, as documented by the survey data, the City will consider maintenance dredging. However, it is not anticipated that silt levels will exceed 2 feet above the design elevations within this portion of the channel, nor is dredging addressed in the SEIR. Roles and Responsibilities The City shall be responsible for ensuring full compliance with the provisions of the MMRP and has the primary responsibility for its implementation. The City shall document both compliance and non-compliance with the MMRP and provide the applicant with the results of the monitoring effort. In addition, the City shall take corrective action if non-compliance occurs. The City may assign monitoring and reporting responsibilities to a third-party monitor. The City and/or their designated contractor(s) is responsible for implementing the mitigation measures as defined in the SEIR and included in the mitigation measures in Table 1. The City shall ensure that construction methods are in accordance with the MMRP and the required mitigation measures are being implemented. Mitigation Monitoring Team A monitoring team shall be identified once the mitigation measures have been adopted as conditions of approval by the City Council. A successful mitigation implementation and monitoring program requires the cooperation and participation of each project member. Prior to the start of construction, project personnel responsible for overseeing the MMRP shall be designated and their roles and responsibilities further refined. Managing the team would be the responsibility of the Mitigation Monitor. The monitoring activities would be accomplished by the Environmental Monitors, Environmental Specialists, and the Mitigation Monitor. While specific qualifications should be determined by the City, the monitoring team should possess the following capabilities: Exhibit "EIR-8" 2 May 2013 Buena Vista Creek Channel Maintenance Project Mitigation Monitoring and Reporting Program • Interpersonal, decision-making, and management skills with demonstrated experience in working under trying field circumstances; • Knowledge of and appreciation for the general environmental attributes and special features found in the project area; • Knowledge of the types of environmental impacts associated with construction of cost- effective mitigation options; and • Excellent communication skills. The responsibilities of the Mitigation Monitor throughout the monitoring effort include the following: • Implement and manage the monitoring program; • Provide quality control for the site-development monitoring; • Administrate and prepare daily logs, status reports, compliance reports, and the final construction monitoring; • Act as liaison between the City and the City's contractors; • Monitor on-site, day-to-day construction activities, including the direction of the Environmental Monitor and Environmental Specialist in the understanding of all permit conditions, site-specific project requirements, construction schedules, and environmental quality control efforts; • Ensure contractor knowledge of and compliance with all appropriate permit conditions; • Review all construction impact mitigation and, if need be, modify existing mitigation or propose additional mitigation; • Have the authority to require correction of observed activities that violate project environmental conditions or that represent unsafe or dangerous conditions; and • Maintain prompt and regular communication with the on-site Environmental Monitors and Environmental Specialists and personnel responsible for contractor performance and permit compliance. The primary role of the Environmental Monitors is to serve as an extension of the Mitigation Monitor in performing the quality control functions at the construction sites. Their responsibilities and functions are to: • Maintain a working knowledge of the Buena Vista Creek Channel Maintenance Project, permit conditions, contract documents, construction schedule and progress, and any special mitigation requirements for his or her assigned construction area; Exhibit "EIR-B" 3 May 2013 Buena Vista Creek Channel Maintenance Project Mitigation Monitoring and Reporting Program • Assist the Mitigation Monitor and the City's construction contractors in coordinating with the City's compliance activities; • Observe construction activities for compliance with the City's permit conditions; and • Provide frequent verbal briefings to the Mitigation Monitor and construction personnel, and assist the Mitigation Monitor as necessary in preparing status reports. The primary role of the Environmental Specialist is to provide expertise when environmentally sensitive issues occur throughout the development phases of project implementation and to provide direction for mitigation. Program Procedural Guidelines Prior to any construction activities, meetings should take place between all the parties involved to initiate the monitoring program and establish the responsibility and authority of the participants. Mitigation measures that need to be defined in greater detail will be addressed prior to any project plan approvals in follow-up meetings designated to discuss specific monitoring effects. An effective reporting system must be established prior to any monitoring efforts. All parties involved must have a clear understanding of the mitigation measures as adopted and these mitigation measures must be distributed to the participants of the monitoring effort. Those that would have a complete list of all the mitigation measures adopted by the City Council would include the City staff, the Mitigation Monitor, and the construction crew supervisor. The Mitigation Monitor would distribute to each Environmental Specialist and Environmental Monitor a specific list of mitigation measures that pertain to his or her monitoring tasks and the appropriate time frame that these mitigations are anticipated to be implemented. In addition to the list of mitigation measures, the monitors will have mitigation monitoring report (MMR) forms with each mitigation measure written out on the top of the form. Below the stated mitigation measure, the form will have a series of questions addressing the effectiveness of the mitigation measure. The monitors shall complete the MMR and file it with the Mitigation Monitor following the monitoring activity. The Mitigation Monitor will then include the conclusions in a report to the City. This report will describe the major accomplishments of the monitoring program, summarize problems encountered in achieving the goals of the program, evaluate solutions developed to overcome problems, and provide a list of recommendations for future monitoring programs. In addition, and if appropriate, each Environmental Monitor or Environmental Specialist will be required to fill out and submit a daily log report to the Mitigation Monitor. The daily log report will be used to record and account for the monitoring activities of the monitor. Weekly and/or monthly status reports, as determined appropriate, will be generated from the daily logs and compliance reports, and will include supplemental material (i.e., memoranda, telephone Exhibit "EIR-8" 4 May 2013 Buena Vista Creek Channel Maintenance Project Mitigation Monitoring and Reporting Program logs, and letters). This type of feedback is essential for the City to confirm the implementation and effectiveness of the mitigation measures imposed on the project. Actions in Case of Noncompliance There are generally three separate categories of noncompliance associated with the adopted conditions of approval: 1. Noncompliance requiring an immediate halt to a specific task or piece of equipment; 2. Infraction that warrants an immediate corrective action but does not result in work or task delay; and 3. Infraction that does not warrant immediate corrective action and results in no work or task delay. In each case, the Mitigation Monitor would notify the City's contractor and the City of the noncompliance, and an MMR would be filed with the Mitigation Monitor on a daily basis. There are a number of options the City may use to enforce this program should non-compliance continue. Some methods commonly used by other lead agencies include "stop work" orders, fines and penalties (civil), restitution, permit revocations, citations, and injunctions. It is essential that all parties involved in the program understand the authority and responsibility of the on-site monitors. Decisions regarding actions in case of non-compliance are the responsibility of the City. Summary of Project Impacts and Mitigation Measures The following table summarizes the potentially significant project impacts and lists the associated mitigation measures to be implemented to reduce impacts to less than significant. For mitigation measures, the time frame to complete the mitigation and the responsible reporting agency are identified. All mitigation measures identified in the SEIR are recommended as conditions of project approval and are stated here in language appropriate for such conditions. In addition, once the Buena Vista Creek Channel Maintenance Project has been approved, and during various stages of implementation, the designated monitors and the City will further refine the mitigation measures. The SEIR, incorporated herein as referenced, focused on issues determined to be potentially significant by the City. The mitigation measures listed in the MMRP table below can be found in Chapter 4 of the SEIR at the end of each environmental resource section. Additional detail on why the mitigation measures are required can also be found in Chapter 4. Exhibit "EIR-B" 5 May 2013 Potential Significant Impact The proposed project would result in: • Temporary, direct impacts to special-status wildlife species that breed and/or forage in freshwater marsh or that have the potential to use freshwater marsh. • Temporary, direct impacts to approximately 3.67 acres of freshwater marsh and approximately 1.28 acres of understory species in southern willow scrub over a 5-year period. • Temporary, direct impacts to several jurisdictional waters, including 1.61 acres of waters (including wetlands under the jurisdiction of the ACOE , RWQCB, CDFW, and CCC), and an additional3.47 acres of waters (including wetlands under the jurisdiction of ACOE, RWQCB, and CDFW). • Long-term or permanent, indirect impacts to special-status wildlife species from the invasion of non- native plant species. • Long-term, indirect impacts to jurisdictional waters (including wetlands), due to changes in hydrology and hydraulics, and the introduction of non-native invasive species. Exhibit "EIR-B" Buena Vista Creek Channel Maintenance Project Mitigation Monitoring and Reporting Program Table 1 Mitigation Measures Mitigation Measure Biology MM 810-1: Mitigation for temporary impacts to special-status vegetation communities shall be through on-site enhancement. The Maintenance District shall be responsible for monitoring and eradicating exotic plant species within the 11.2-acre project area annually for the duration of the maintenance program. The enhancement shall be implemented in accordance with the Buena Vista Creek Channel Exotic Plant Species Control Plan (Dudek 2003) and any additional updates to this plan required by the California Department of Fish and Wildlife (CDFW) in the Streambed Alteration Agreement. A monitoring report documenting the invasive exotic plant species removed and an assessment of the functions and values of the 11.2-acre project area shall be submitted to the City of Carlsbad City Planner and City Engineer annually. 6 Time frame Monitoring of MitiQation Agency Pre-City of construction Carlsbad and during construction Responsible Date of for Completion Completion City of Carlsbad - Planning Department and Public Works Department May 2013 Potential Significant Impact The proposed project would result in: • Temporary, indirect impacts to special-status wildlife species, special-status vegetation communities, and jurisdictional waters (including wetlands) from potential fugitive dust, noise, chemical pollutants, increased human activities, and non-native animal species. • Temporary, indirect impacts to special-status wildlife species from vegetation removal activities. • Temporary, direct impacts from removal or trampling of vegetation communities and/or suitable habitat for special-status wildlife species outside designated work zones. • Long-term, indirect impacts to jurisdictional waters or wetlands from potential disturbance outside of the project area. Exhibit "EIR-B" Buena Vista Creek Channel Maintenance Project Mitigation Monitoring and Reporting Program Table 1 Mitigation Measures Mitigation Measure MM BI0-2: To prevent inadvertent disturbance to areas outside the limits of the maintenance areas, the vegetation removal shall be monitored by a qualified biologist. A biologist shall be contracted by the City of Carlsbad to perform biological monitoring during maintenance activities. Additionally, the project biologist shall implement or verify implementation of the following monitoring requirements and Best Management Practices (BMPs) and conduct pre-activity education meetings to review each of these requirements and BMPs. Monitoring reports and a post-construction monitoring report shall be prepared to the satisfaction of the City of Carlsbad to document compliance with BI0-2. 1. During vegetation removal activities, biologist shall conduct daily site visits. 2. Biologist shall discuss procedures for minimizing harm to or harassment of wildlife encountered during maintenance activities with the contractor and other key construction personnel prior to activities. 3. Biologist shall review and/or designate the vegetation removal area in the field with the contractor in accordance with the final plan. 4. Biologist shall flush special-status species (i.e., avian or other mobile species) from occupied habitat areas immediately prior to vegetation removal activities. 5. Maintenance vehicles shall not exceed 15 miles per hour on unpaved roads adjacent to project site or the right-of-way accessing the site. 6. If trash and debris need to be stored overnight during the maintenance activities, fully covered trash receptacles that are animal-proof and weather-proof will be used by the maintenance contractor to contain all food, food scraps, food wrappers, beverage containers, and other miscellaneous trash . Alternatively, standard trash receptacles may be used during the day, but must be removed each night. 7 Time frame Monitoring of Mitigation Agency Pre-City of construction Carlsbad and during construction Responsible Date of for Completion Completion City of Carlsbad - Public Works Department May 2013 Potential Significant Impact The proposed project would result in: • Potential temporary, indirect impacts to nesting birds if the proposed maintenance activities would occur during the breeding/ nesting season. Exhibit "EIR-B" Buena Vista Creek Channel Maintenance Project Mitigation Mon itoring and Reporting Program Table 1 Mitigation Measures Mitigation Measure 7. Cut vegetation shall be hauled out of the channel and stored, if necessary, where it cannot be washed by rainfall or runoff into the channel. When maintenance activities are completed, any excess materials or debris shall be removed from the project site. 8. Temporary structures and storage of construction materials shall not be located in jurisdictional waters, including wetlands and riparian areas. 9. Staging/storage areas for construction equipment and materials shall not be located in jurisdictional waters, including wetlands and riparian areas. 10. Any hand-held equipment used for maintenance activities that is operated within jurisdictional waters, including wetlands and riparian areas, shall be checked and maintained by the operator daily to prevent leaks of oil or other petroleum products that could be deleterious to aquatic life if introduced to the watercourse. 11. No equipment maintenance shall be performed within 1 00-feet of jurisdictional waters, including wetlands and riparian areas, where petroleum products or other pollutants from the equipment may enter these areas. Fueling of equipment shall not occur on the project site. 12. Pets on or adjacent to construction sites shall not be permitted by the operator. MM BI0-3: In order to avoid temporary indirect impacts to nesting birds, maintenance activities shall not occur during the nesting bird season (March 15 through September 15). 8 Time Frame Monitoring of Mitigation Agency During City of construction Carlsbad Responsible Date of for Completion Completion City of Carlsbad - Public Works Department May 2013 Potential Significant Impact The proposed project would result in: • Potential indirect impacts to special-status vegetation communities and direct impacts to jurisdictional waters, including wetlands from fugitive dust, increased human activity, and the introduction of chemical pollutants. • Direct, temporary impacts to several jurisdictional waters, including 1.61 acres of waters (including wetlands under the jurisdiction of the ACOE, RWQCB, CDFW, and CCC), and an additional 3.47 acres of waters (including wetlands) under the jurisdiction of ACOE, RWQCB, and CDFW. The proposed project would result in potentially significant impacts to water quality from potential hazardous materials spills from project equipment. Exhibit "EIR-8" Buena Vista Creek Channel Maintenance Project Mitigati on Monitoring and Reporting Program Table 1 Mitigation Measures Mitigation Measure MM 810-4: All applicable laws, regulations, safety precautions, and label directions must be followed when performing pest control. All pesticide applications shall be performed by a contractor with a valid Qualified Applicator License (QAL) and a valid Pest Control Business License. A Licensed Pest Control Adviser (PCA) shall be consulted if specific pest control recommendations are required. The timing of any weed control shall be determined for each plant species with the goal of controlling populations before they can reproduce by spreading vegetatively or producing seed. Hvdroloav and Water Qualitv MM HYDR0-1 : The Maintenance District shall ensure that all equipment required for maintenance activities shall be refueled or maintained within designated staging areas (adjacent parking lots). Best Management Practices (BMPs) to contain accidental spills of hazardous materials shall be utilized when performing vehicle maintenance or refueling. Such BMPs may include the following: • When equipment is being utilized along the access road , drip pans shall be placed under all potential discharge conduits or leaks. • "Spot clean" leaks and drips routinely to prevent runoff of spillage. • Post signs to remind employees not to top off the fuel tank when filling and signs that ban employees from changing engine oil or other fluids at the project location. • Report leakinq vehicles to fleet maintenance. 9 Time frame Monitoring of Mitigation Agency During City of construction Carlsbad During City of construction Carlsbad Responsible Date of for Completion Completion City of Carlsbad - Public Works Department City of Carlsbad - Public Works Department May 2013 Exhibit "EIR-8" Buena Vista Creek Channel Maintenance Project Mitigation Monitoring and Reporting Program 10 May 2013 Buena Vista Creek Channel Invasive Exotic Plant Control Plan Prepared for: City of Carlsbad 1635 Faraday Avenue Carlsbad, California 92008 Contact: Sherri Howard Tel: 760.602.2756 Prepared by: DUDEK 605 Third Street Encinitas, California 92024 Contact: Doug Gettinger Tel: 760.942.5147 NOVEMBER 2014 "EXHIBIT 6" Printed on 30% post-consumer recycled material. Buena Vista Creek Channel Invasive Exotic Plant Control Plan TABLE OF CONTENTS Section Page No. 1 INTRODUCTION •••••.••••••••••••••••••••••••••.....•...•••••••.•.•.•••..•.•..••••••••••.•••••••••..•.•.•.•••••.•••••.••.•.•. l 2 PROJECT DESCRIPTION .•.•...•........................................................••.........•...•......•....... 3 3 LEGAL REQUIREMENTS OF THE WEED CONTROL PROGRAM ..................... 5 4 SENSITIVE SPECIES ISSUES ..................•.••.•..........•.......•.•••.•••.•.•..•.•.•.......••••.......•.....•. 7 5 DEFINITIONS USED IN THIS PLAN •.••••.•••••••••••••••••.••••••••••••••••••••••••.•.•..•••.•••••••••••••.•.• 9 6 WEED CONTROL PROGRAM ••••••••.••••.••••••••••••••••••••••••••••••••••••••••••••••••••.••.•••••••••••••••• 11 7 REPORTING REQUIREMENTS •••••••.•.•.•..••••••••••.••••••.•••••••••••.•••.••••••••.•••.•....•.•••....•.••• 21 8 REFERENCES ••••••.•••...•...•..•...•.•.•.•..•...•.•.•..••..•.•••.••.•••••••••••••••.•....••.•.•.•.••.•...•...•.•.•.••...•.•. 23 FIGURES Regional Map ..................................................................................................................... 25 2 Vicinity Map ...................................................................................................................... 27 3 Biological Resources Map with Annual Vegetation Removal Areas ................................ 29 DUDEK 7177 November 2014 Buena Vista Creek Channel Invasive Exotic Plant Control Plan INTENTIONALLY LEFT BLANK DUDEK II 11n November2014 Buena Vista Creek Channel Invasive Exotic Plant Control Plan 1 INTRODUCTION This invasive plant species control plan (Plan) discusses control of invasive plant species from the wetlands and upland areas within the Buena Vista Creek Channel Maintenance Project area. Invasive exotic plants will be controlled as a mitigation measure for temporary impacts associated with channel maintenance. The Plan updates and replaces the Buena Vista Creek Channel Exotic Plant Species Control Plan (Dudek & Associates Inc. 2003), which was prepared for the smaller project area authorized by the previous agency permits more than a decade ago. The project area is located along Buena Vista Creek between the South Vista Way and Jefferson Street bridges in the Cities of Oceanside and Carlsbad (Figures 1, 2, and 3). The latitude and longitude of the approximate center of the site is 33°10'50.59" N and 117°20'00.53" W. The Universal Transverse Mercator (UTM) coordinates for the approximate center are UTM Easting (meters) 468911 and UTM Northing (meters) 3671371. The project area lies within the San Luis Rey U.S. Geological Survey (USGS) 7.5-minute quadrangle, Township 11 South, Range 4 West, Section 30, and within the Buena Vista Creek Watershed. Buena Vista Creek at the Jefferson Street bridge, the downstream end of the project area, is located at approximately 33°1 0'44.97"N l17°20'25.41"W, and the creek at the South Vista Way bridge, the upstream end ofthe project area, is located at approximately 33°10'49.66"N 117°19'44.1 5"W. The project corridor is bounded by State Route 78 to the north and Plaza Camino Real shopping mall to the south. The project site totals approximately 11.2 acres. Elevations within the project corridor range from approximately 17 to 25 feet above mean sea level (AMSL). DUDEK 7177 November 2014 Buena Vista Creek Channel Invasive Exotic Plant Control Plan INTENTIONALLY LEFT BLANK DUDEK 2 7177 November 2014 Buena Vista Creek Channel Invasive Exotic Plant Control Plan 2 PROJECT DESCRIPTION This Plan has been prepared in accordance with the Final Supplemental Environmental Impact Report for the Buena Vista Creek Channel Maintenance Project, EIR 02-03(A) SCH No. 20021010/5 (Dudek 2013). The Plan includes the control, killing, and/or physical removal of perennial invasive non-native vegetation (weeds). A variety of control methods will be used to implement this Plan. The control method(s) used will vary depending on several variables, including. but not limited to, the particular species targeted for control, the overall area to be treated/removed, whether water is present at the control site, the crew skill level, the tools and machinery available for use, the time of year, the ease/difficulty of access, and the proximity to sensitive resources. The Buena Vista Creek channel serves as a flood control channel and is riprap-sided with a natural bottom. Jurisdictional wetland habitat types in the project area include southern coastal saltmarsh, Diegan coastal sage scrub, disturbed habitat, freshwater marsh, mulefat scrub, ornamental, open water, and southern willow scrub. Habitat types generally follow the Holland vegetation classification system (Holland 1986) and Oberbauer et al. (2008), where feasible, with modifications to accommodate the lack of conformity of the observed communities to those of Holland (1986) and Oberbauer et al (2008). Plant names generally follow Jepson (Baldwin et al. 2012). To maintain channel floodwater capacity in the project area and protect property, one-fifth of the aboveground freshwater marsh vegetation will be removed from the northern half of the channel in the fall of each year on an ongoing basis. As a mitigation measure for the channel maintenance project, the Program EIR Mitigation Monitoring and Reporting Program (MMRP) requires the monitoring and control of invasive exotic plant species within the approximately 11.2-acre project area. Invasive species targeted for control within the project area are generally aggressive, rapidly colonizing non-native plant species that compromise the quality and functions of natural habitats within the region. In some instances, invasive species can also compromise safety by exacerbating flood and fire hazards. It is the intent of this plan to be adaptive, flexible, and responsive to changing site conditions. Potential control measures will need to be determined if new invasive weed species are discovered. A combination of physical removal and herbicide treatment will be required to control invasive exotic plant species in the project area. To comply with permit conditions, no vehicles or heavy equipment may enter into the creek. Vehicles and heavy equipment may work from the adjacent sewer maintenance access road, however, so long as the vehicles or heavy equipment do not leave the road and enter jurisdictional wetland areas. All work within jurisdictional wetland areas DUDEK 3 11n November 2014 Buena Vista Creek Channel Invasive Exotic Plant Control Plan must use hand-held equipment. Properly timed, repeat herbicide applications are usually required for complete control of many well-established invasive exotic species. During a site survey in September 2003, prior to project implementation, Dudek observed that exotic plant species were of low density and widely scattered in the project area. Since that time, invasive plant species have remained at an even lower density and cover. DUDEK 7177 November 2014 Buena Vista Creek Channel Invasive Exotic Plant Control Plan 3 LEGAL REQUIREMENTS OF THE WEED CONTROL PROGRAM When performing pest control, all applicable laws, regulations, safety precautions, and label directions must be followed. State laws and regulations regarding pest control and pesticides are contained in the Food and Agriculture Code and the California Code of Regulations. Pest control and pesticide use are under the jurisdiction of the California Environmental Protection Agency, Pesticide Enforcement Branch. Local enforcement is provided by the County Agricultural Commissioner. In 1994, the California Department of Fish and Game (now known as California Department of Fish and Wildlife (CDFW)) signed a Memorandum of Understanding (MOU) with the Department of Pesticide Regulation (CDPR) and the California Agricultural Commissioners and Sealers Association acknowledging that CDFW does not regulate pesticides. The MOU was followed by a Pesticide/Wildlife Incident Response Plan, dated April 2000, that outlined the scope and roles of each agency with regard to pesticides and wildlife issues. In accordance with state Jaw, this document discusses possible treatment options but does not dictate the specific methods or materials that must be used to control invasive exotic plant pest species at specific sites for this project. Actual methods and materials will depend on the specific environmental conditions present at the site at the time when control measures are undertaken. If needed at the time of treatment, the contractor or entity performing the control work will obtain a written recommendation from a licensed Pest Control Adviser. Depending on the circumstances and pesticide used, a written recommendation may not be required and a Qualified Applicator License or Qualified Applicator Certificate may make the decisions required for specific pesticide applications under the terms of their license or certificate. In accordance with California Food and Agriculture Code, Section 12003, a written recommendation must contain current site-specific information for each treatment site, and include the following: (a) the name and dosage of each pesticide to be used or description of the method recommended; (b) the identity of each pest to be controlled; (c) the owner or operator, and location of and acreage to be treated; (d) the commodity, crop, or site to be treated; (e) suggested schedule, time, or conditions for the pesticide application or other control method; (f) a warning of the possibility of damages by the pesticide application that reasonably should have been known to exist by the pest control adviser; and (g) signature and address of the pest control adviser, along with an expiration date for the recommendation. A Pest Control Adviser recommendation is valid for a maximum of 1 year. Pesticide registrations, laws, regulations, and label directions change regularly, so this plan presents general information only. Refer to the specific herbicide label for information about approved methods, proper timing, and application rates. The contractor must follow all applicable DUDEK 5 7177 November 2014 Buena Vista Creek Channel Invasive Exotic Plant Control Plan label directions, laws, regulations, and safety precautions when perfonning pest control. It is up to the pesticide applicator to abide by the most current pesticide laws and regulations. To apply pesticides for hire, state law requires that the contractor perfonning pest control have a valid Qualified Applicator Certificate or Qualified Applicator License from the State of California, as appropriate to the contractor's situation. If a contractor is perfonning the work, the contractor must also have a valid Pest Control Business License. If the contractor perfonning the pest control work needs specific pest control recommendations for any particular pest-control effort, the contractor should consult a licensed Pest Control Adviser for a written recommendation. Due to a 2001 decision by the U.S.,Ninth Circuit Court of Appeals in the Headwaters Inc. vs. Talent Irrigation District case, a National Pollutant Discharge Elimination System (NPDES) pennit is required if any pesticides are applied to or come in contact with waters of the United States. If herbicides are applied to or come in contact with water. enrollment under Water Quality Order No. 20 13-0002-DWQ, General Penn it No. CAG990005, Statewide General NPDES Penn it for the Residual Aquatic Pesticide Discharges to Waters of the United States from Algae and Aquatic Weed Control Applications, or any subsequent pennit, will be required prior to applying pesticides to the water. Herbicides may be legally applied to any portion of the project area without an NPDES permit, so long as herbicides are not applied to or do not come into contact w~th open water, and all other legal requirements are met. Aquatic herbicides are not legally required for use in wetland areas unless the herbicide will actually come in contact with open water, or unless label directions prohibit their use (some pesticides have restrictions in tidal zones or where saturated soil is present). DUDEK 6 7177 November 2014 Buena Vista Creek Channel Invasive Exotic Plant Control Plan 4 SENSITIVE SPECIES ISSUES Sensitive species present in the project area include the federally and state-listed endangered least Bell's vireo (Vireo bellii pusi/lus). Other sensitive or protected wildlife species have the potential to occur within the project area. The U.S. Environmental Protection Agency (1999) has developed risk-based guidelines regarding the safe use of pesticides to protect endangered and threatened species. The CDPR California Pesticide Information Portal website provides information on pesticide-related issues such as the Endangered Species Custom Realtime Internet Bulletin Engine, called PRESCRIBE, which replaces the old paper Endangered Species Bulletins and is found at http://calpip.cdpr.ca.gov/county.cfin?ds=PRESCRIBE. The online tool will provide use limits for pesticide products in the selected areas, based on the listed endangered and threatened species that might be present in the area. Use limits allowed for selective control of invasive exotic plants in occupied habitat at the time this Plan was prepared. The use limitations take into account known locations of listed species on a regional basis, the pesticide mode of activity category, and hazard class to provide use limitations to protect the listed species. Use limitations include establishing buffer zones, containing runoff water, and establishing prohibitions in occupied habitat, except under certain specific conditions. The online tool should be consulted at the time control is anticipated to occur to determine current use limitations. In addition, the Migratory Bird Treaty Act could also have an impact on the initial removal of mature exotic trees and shrubs in the project area. Nesting bird surveys are required if the vegetation removal is performed during the bird breeding season between February 15 and September I of any year. Because of this, most weed control and removal efforts will take place outside the bird breeding season. Subsequent herbicide treatment of sprouting stumps should be done at the biologically appropriate time for that weed species and could be done during the bird breeding season, provided the exotics have not grown back to size and structure to support nesting birds. If the plants being treated do grow back and are able to support nesting birds before follow-up treatment, nesting bird surveys should be performed before additional control measures are employed. Limiting follow-up weed control to that period outside the bird breeding season could allow certain invasive and aggressively growing plant species time to fully recover from the control measures taken previously, rendering them moot. DUDEK 7 7177 November 2014 Buena Vista Creek Channel Invasive Exotic Plant Control Plan INTENTIONALLY LEFT BLANK DUDE I< 8 11n November 2014 Buena Vista Creek Channel Invasive Exotic Plant Control Plan 5 DEFINITIONS USED IN THIS PLAN Project Engineer-The City of Carlsbad engineer in charge of the channel maintenance project. All work done on this project will be done under the authority and responsibility of the Project Engineer. The Project Engineer shall be the primary contact person for this project. Restoration Biologist -A Restoration Biologist will be hired by the City with knowledge and understanding of the native and exotic plant species and natural plant communities present on site. The Restoration Biologist will have training and experience in habitat restoration projects in coastal Southern California. The Restoration Biologist shall monitor the work of the Landscape Contractor and prepare any necessary reports to the City and resource agencies. The Restoration Biologist shall also determine whether any planting and/or seeding is necessary following the removal and/or control of invasive exotic weed species from the project site. The Restoration Biologist must hold a Pest Control Adviser's license if he or she makes specific pest control recommendations. Landscape Contractor -A licensed Landscape Contractor or an agricultural pest control business with experience in habitat restoration work will be hired by the City of Carlsbad to perform the weed control program. The Landscape Contractor shall possess a valid C-27 License and a current Qualified Applicator License or Qualified Applicator Certificate, as appropriate to his or her situation, if he or she is to perform the weed control work. The Landscape Contractor must also have a valid Pest Control Business License. The Landscape Contractor shall have demonstrated habitat restoration experience in coastal Southern California. Pest Control Adviser-Section 11410 of the California Food and Agriculture Code defines Pest Control Adviser as "any person who offers a recommendation on any agricultural use, who holds himself or herself forth as an authority on any agricultural use, or who solicits services or sales for any agricultural use." Agricultural use is very broadly defined in the law to include almost all uses except for specified exceptions for home use, structural pest control, industrial or institutional use, and other specific limited circumstances. The definition of agricultural use includes roadsides, rights-of-way, and waterways, which would include the Buena Vista Creek channel. State law requires that Pest Control Advisers obtain an Agricultural Pest Control Adviser License and register in the county where they make recommendations. Recommendations -Section I 1411 of the California Food and Agriculture Code defmes recommendation as "the giving of any instruction or advice on any agricultural use as to any particular application on any particular piece of property." Recommendations must be in writing and signed, and must include specific required information listed in the regulations. Because recommendations must have an expiration date not exceeding 1 year from the time they are DUDEK 9 7177 November 2014 Buena Vista Creek Channel Invasive Exotic Plant Control Plan made, and because recommendations must take into account the exact environmental conditions when control is to be taken, recommendations cannot legally be made in this Plan. DUDEK 10 11n November 2014 Buena VIsta Creek Channel Invasive Exotic Plant Control Plan 6 WEED CONTROL PROGRAM The California Invasive Plant Council (Cal-IPC) maintains invasive plant management information on its website at http://www.cal-ipc.org/ip/management/index.php. Information available includes invasive plant profiles, invasive plant alerts, and a list of current references. The 2006 Cal-IPC Invasive Species Inventory, as well as New Weeds Added to Cai-IPC Inventory (Cai-IPC 2007), and any updates to it, can be found at http://www.cal- ipc.org/ip/inventory/pdf/Jnventory2006.pdf. Cai-IPC holds an annual symposium in October to share information, and the proceedings are available on its website. The University of California Statewide Integrated Pest Management Program maintains a website with extensive information about pest identification and management at http://www.ipm.ucdavis.edu/default.html. The Regional Advisor on invasive plants is Carl Bell; he may be contacted for assistance with new or troublesome pest species. Up-to-date specimen labels and material safety data sheets for most currently registered agrochemicals can be found in a database maintained on the Crop Data Management Systems Inc. website at http://www.cdms.net/LabelsMsds/LMDefault.aspx. Pesticides can be searched for by either manufacturer or product name. Current pesticide labels and material safety data sheets can also be obtained from the manufacturer and product suppliers. Other useful published resources include Weeds of California and other Western States, Volume 1, Aizoaceae-Fabaceae (DiTomaso and Healy 2007a) and Weeds of California and other Western States, Volume 2, Geraniaceae-Zygophyl/aceae (DiTomaso and Healy 2007b); Aquatic and Riparian Weeds ofthe West (DiTomaso and Healy 2003); Invasive Plants ofCalifornia's Wildlands (Bossard et al. 2000); Pests of Landscape Trees and Shrubs: An Integrated Pest Management Guide (Dreistadt 1994); and Natural Enemies Handbook: The Illustrated Guide to Biological Pest Control (Flint and Dreistadt 1998). Invasive weed species known to the project area are discussed below in alphabetical order by Latin name, followed by common name(s). Each species is listed with its Cal-IPC rating (High, Moderate, Limited) and scores (A = Severe, B = Moderate, C = Limited, D =None, U =Unknown). Perennial invasive exotic plant species observed growing in the Buena Vista Creek project area and its associated watershed currently or in the past that will be controlled include the following: acacia (Acacia species), tree-of-heaven (Ailanthus altissima), giant reed (Arundo donax), Australian saltbush (Atriplex semibaccata), ice plant (Carpobrotus edulis), Pampas grass (Cortaderia jubata and C. selloana), red gum (Eucalyptus camaldulensis), fennel (Foeniculum vulgare), evergreen ash (Fraxinus uhdei), perennial pepperweed (Lepidium latifolium), myoporum (Myoporum laetum), tree tobacco (Nicotiana glauco), Bermuda buttercup (Oxalis DUDEK 11 11n November 2014 Buena Vista Creek Channel Invasive Exotic Plant Control Plan pes-caprae), Virginia creeper (Parthenocissus quinquefolia), fountain grass (Pennisetum setaceum), Canary Island date palm (Phoenix canariensis), castor bean (Ricinus communis), Himalayan blackberry (Rubus armeniacus), Brazilian pepper (Schinus terebinthifolius), salt cedar (Tamarix ramosissima), and Mexican fan palm (Washingtonia robusta). The Restoration Biologist may add additional species to this list if other species are observed invading the mitigation area. It is not the intent of this Plan to remove or control any of the ornamental landscape plants placed as a visual buffer along the southern boundary of the Buena Vista Creek channel, around the sewer pump station, or in areas of future development, should it occur. In addition, the landscape contractor may also control any annual weeds present in the project area when maintenance occurs. Because of their limited lifespan, along with the limited period of time that maintenance occurs in the creek channel on an annual basis, the control of annual weeds is not required. Annual weeds present that might be controlled have included the following: mustard (Brassica nigra, B. rapa, Hirschfeldia incana), poison hemlock (Conium maculatum), clover (Me/ilotus spp.), cultivated radish (Raphanus sativus), crown daisy (Glebionis coronaria), nasturtium (Tropaeolum majus), Maltese star-thistle (Centaurea melitensis), common iceplant (Mesembryanthemum crystallinum), slenderleaf iceplant (M. nodif/orum), prickly Russian thistle (Sa/sola tragus), and dwarfnettle (Urtica urens). The weed control effort each year will coincide with the beginning of the channel maintenance project, which will begin after the bird breeding season ends on September 1. This will ensure that breeding birds are not harmed by the weed control program should they be nesting in any trees or shrubs to be removed. Any large exotic trees growing in the stream channel will be cut down and treated with herbicide, if necessary, after the bird breeding season is over. The need for follow-up weed control measures will depend on the species being controlled, how successful the initial efforts were, and whether new invasive exotic weed propagules are becoming established in the project area. Some invasive weed species require 2 to 3 years of properly timed treatment to kill the plants (Bossard et al. 2000; Di Tomaso and Healy 2003; and Tu et at. 2001). Follow-up herbicide treatment should be done at the biologically appropriate time when the recovering plants are still relatively small and before they have time to regain strength and vigor. This may require treatment during the bird breeding season. Nesting bird surveys will be performed prior to control during the bird breeding season, as needed. None of the legally registered herbicides that may be used to treat weeds in the project area pose a threat to avian species, and they may be used without restrictions, with the exceptions of the use limitations imposed for threatened and endangered species. Large trees or plants that are removed during invasive species control work should be removed from the project site. Seedlings and small plants that are pulled, cut, or sprayed may be left to decompose on site provided they are in an area where they will quickly desiccate and not in an DUDEK 12 11n November 2014 Buena VIsta Creek Channel Invasive Exotic Plant Control Plan area where they may take root and recover. Regrowth that is subsequently treated with herbicide may be left in place to decompose so long as the plants are not allowed to recover to mature size before being treated again. The Restoration Biologist will determine which plants need to be removed and which may be left in place to decompose. Pesticide label directions change with some frequency, and occasionally new products are introduced or old ones are withdrawn. Currently registered herbicides that may be used for weed control in the project area as this Plan was being prepared include, but are not limited to, glyphosate (trade names Aquamaster, Roundup Pro, Roundup Pro Dry, Roundup Pro Concentrate, etc.), triclopyr (trade names Garton 3A, Garton 4, Pathfinder II), diquat (trade name Reward), fluazifop-p (trade name Fusilade II), sethoxydim (trade name Poast), and pelargonic acid (trade name Scythe). All, some, or none ofthese materials may be used to control weeds in the project area, depending on circumstances at the time control is accomplished. The following target invasive exotic plant species are found growing in or near the project area and will be removed and/or controlled on the project site. Other invasive species may be targeted as well, such as newly introduced spe~ies. Acacia species -Acacia Cai-IPC Rating-Species present in the area not listed as invasive by Cal-IPC Acacias planted on the slope adjacent to the shopping center parking lot as landscape screening shrubs should not be controlled since they are part ofthe ornamental landscaping for the adjacent property. Any that volunteer into the creek channel should be controlled. They can be cut down and the stumps treated with an herbicide such as glyphosate (Aquamaster, Roundup Pro, etc.) or triclopyr (Garlon 3A, Garton 41 Pathfinder II), following label directions. Any seedlings that are discovered can be pulled, if small enough, or sprayed with a dilute herbicide solution according to label directions. Ailanthus altissinul-Tree-of-heaven Cai-IPC Rating-Moderate; Impacts-B; Invasiveness-B; Distribution - B Tree-of-heaven has been found growing in the project area in the past and has been controlled, though continued reinvasion is always possible. They can be cut down and the stumps treated with an herbicide such as glyphosate (Aquamaster, Roundup Pro, etc.) or triclopyr (Garton 3A, Garton 4, Pathfinder II), following label directions. The trees should not be cut down and treated until after the bird breeding season to avoid any nesting birds either in the trees or adjacent habitat where the trees will fall. It is important that the cut stump is treated with herbicide to prevent prolific stump and root sprouting. Any stump or root sprouts that appear will need to be treated with herbicide applications, perhaps repeatedly. Any seedlings that are discovered can be DUDEK 13 11n November 2014 Buena Vista Creek Channel Invasive Exotic Plant Control Plan pulled, if small enough, or sprayed with a dilute herbicide solution. Herbicide treatments are most effective in early spring just after leaf expansion. Aru11do do11ax-Giant reed Cal-IPC Rating-High; Impacts-A; Invasiveness-8; Distribution-A Giant reed grows upstream of the project area on Buena Vista Creek and may appear in the project area in the future. Giant reed can be removed easily by hand if the new plants are discovered early enough. It should be physically removed as soon as discovered. If giant reed plants are not discovered before they become well-established, repeat herbicide treatment with an herbicide such as glyphosate (Aquamaster, Roundup Pro, etc.), following label directions, will be required. Once established, repeat herbicide applications will likely be required for complete control. Herbicide treatments are most effective in the fall months up until the first frost. Once a frost occurs, the herbicide will not translocate down to the rhizomes and roots, so herbicide treatments should cease until spring if a frost occurs. Atriplex semibaccata -Australian saltbush Cal-IPC Rating-Moderate; Impacts-8; Invasiveness-8; Distribution-8 Australian saltbush is a low-growing, spreading ground cover that has the ability to displace native plants. It favors saline soils and disturbed areas and grows on the upland portions of the stream channel banks and adjacent flat areas. Australian saltbush can be controlled by pulling or spraying with an herbicide solution. Carpobrotus edulis -lceplant Cal-l PC Rating-High; Impacts-A; Invasiveness-8; Distribution-A Ice plant is a common, spreading groundcover that has been found on the channel slopes in the riprap. Iceplant may be controlled by pulling or spraying with an herbicide. In addition, annual crystalline iceplant (Mesembryanthemum crystallinum) and slender-leaved iceplant (Mesembryanthemum nodiflorum) are also found in the area and can also be controlled by pulling or spraying with an herbicide. Cortaderia jubata and C selloa11a-Jubata grass and Pampas grass Cai-IPC Rating-High; Impacts-A/A; Invasiveness-AlA; Distribution-A/8 Jubata grass and Pampas grass are some of the worst invasive weed problems in wetland habitat areas in the City of Carlsbad, but there are not a significant number of plants in the project area. The two species look similar and sometimes grow together, and control is the same for both species. Jubata grass and Pampas grass spread by wind-blown seed. Jubata grass and Pampas grass will likely require ongoing control of new plants. If the plants begin blooming before DUDEK 14 7177 November 2014 Buena VIsta Creek Channel Invasive Exotic Plant Control Plan control measures are undertaken, the flower stalks should be carefully cut off and bagged to prevent seed dispersal. Small plants can be pulled, and larger plants will either need to be cut down and/or sprayed with herbicide. Fall is the best time for herbicide treatment of jubata grass and Pampas grass. Repeated treatments may be necessary for established plants. Eucalyptus camaldulensis-Red gum Cal-IPC Rating-Limited; Impacts-C; Invasiveness-C; Distribution-C There are numerous red gum trees growing within the Buena Vista Creek watershed upstream and around the project site. Many red gums have been planted in adjacent landscaped areas and have volunteered into riparian areas. Red gum can be cut down and the stumps treated with an herbicide such as glyphosate (Aquamaster, Roundup Pro, etc.) or triclopyr (Garton 3A, Garton 4, Pathfinder II), following label directions. Any seedlings that are discovered can be pulled or sprayed with a dilute herbicide solution. It should be noted that there are other species of Eucalyptus that have been planted in areas adjacent to the project that are not invasive and they should not be controlled as part of this project. Examples include bushy yate (Eucalyptus lehmannii) that has been planted at the sewer pump station next to the Jefferson Street bridge, and various other species planted in adjacent shopping centers. Foeniculum vulgare -Fennel Cal-l PC Rating-High; Impacts-A; Invasiveness -8; Distribution-A Fennel is a tough and aggressive tap-rooted weed problem in mesic areas. Fennel is an aromatic herb that has escaped cultivation. It can form dense stands and tends to go dormant during the summer months. It spreads by seed, germinates, and grows quickly, out-competing many native species. The seed is viable for several years. The seed may be dispersed by bird and other animals, transported in water, and with soil movement (Bossard et al. 2000). Fennel can also reproduce from root fragments. Fennel occurs along Buena Vista Creek in riprap areas. Repeated herbicide treatments in the spring will likely be required for successful control. Manual control is usually ineffective because the plants sprout from root fragments left in the soil. Herbicides such as glyphosate (Aquamaster, Roundup Pro, etc.) or triclopyr (Garton JA, Garton 4), following label directions have proven effective. Spring is the most effective time for herbicide control. Fraxinus uhdei-Evergreen ash Cai-IPC Rating-Species not listed as invasive by Cal-IPC Evergreen ash is an ornamental species that can be found growing within Buena Vista Creek watershed. Volunteers were present in the project area in the past and can be expected to volunteer in the future. Large trees should not be cut down and treated until after the bird breeding season to avoid any nesting birds either in the trees or adjacent habitat where the trees DUDEK 15 7177 November 2014 Buena Vista Creek Channel Invasive Exotic Plant Control Plan may fall. The trees can be cut down and the stumps treated with an herbicide such as glyphosate (Aquamaster, Roundup Pro, etc.) or triclopyr (Garton 3A, Garton 4, Pathfinder II), following label directions. Any seedlings that are discovered can be pulled or sprayed with a dilute herbicide solution. Lepidium latifo/ium-Perennial pepperweed Cal-fPC Rating-High; Impacts-A; Invasiveness-A; Distribution -A Perennial pepperweed appeared in the project area in the past few years. The seed germinates and grows quickly, out-competing many native species. Perennial pepperweed also spreads by vegetative means; root fragments that break off during rainstorms can root downstream if they settle in a location with sufficient moisture. It grows in mesic and riparian areas and tolerates saline and alkaline conditions. The plants produce white flowers during the late spring to summer months. which makes it easier to spot at that time when it is growing among other vegetation. Perennial pepperweed requires repeated herbicide treatment over a period of several years to kill the plants, as well as to kill newly germinated seedlings. The most effective time to treat perennial pepperweed is when the plant is in bud prior to bloom, usually occurring from spring into summer (Bossard et al. 2000). Herbicides that can be used to treat perennial pepperweed include diquat (Reward), glyphosate (Aquamaster, Roundup Pro, etc.), pelargonic acid (Scythe), and triclopyr (Garton 3A, Garton 4, Pathfinder II). All of these materials are applied as a foliar spray. Pulling or digging out perennial pepperweed is ineffective because the plant has a massive, extensive root system that will regrow from small root fragments left in the soil. Myoporum /aetum-Ngaio tree Cal-IPC Rating -Moderate; Impacts -B; Invasiveness -B; Distribution - B Ngaio trees are found growing in the project area and are used in ornamental landscape situations in the area. Ngaio tree can be cut down and the stumps treated with an herbicide such as glyphosate (Aquamaster, Roundup Pro, etc.) or triclopyr (Garton 3A, Garton 4, Pathimder D), following label directions. Any seedlings that are discovered can be pulled or sprayed with a dilute herbicide solution. Nicotiana glauca-Tree tobacco Cal-IPC Rating-Moderate; Impacts-C; Invasiveness-B; Distribution - B Tree tobacco can be found growing in the channel slopes of the project in riprap and other areas. Small plants can easily be pulled, but larger plants will need to be treated with an herbicide such as glyphosate (Aquamaster, Roundup Pro, etc.), at the label rate. Tree tobacco is best treated using the cut stump herbicide treatment method. Treatment is most effective during periods of DUDE I< 16 11n November 2014 Buena Vista Creek Channel Invasive Exotic Plant Control Plan active growth. Tree tobacco can be treated with a foliar spray, but the foliage has a waxy surface, and the herbicide solution often rolls off the leaves. A spreader sticker should be used if foliar sprays of herbicide are used to help with herbicide uptake. Seedlings may be pulled when the soil is moist or sprayed with a foliar application of herbicide. Oxalis pes-caprae-Bermuda buttercup Cal-l PC Rating-Moderate; Impacts-8; Invasiveness-8; Distribution-8 Bermuda buttercup is a difficult-to-control weed that can be found growing on the south-side channel slope near the South Vista Way bridge. The plants produce bulbs and go dormant during dry periods, making it difficult to control when maintenance normally occurs on the project site. Actively growing plants can be treated with an herbicide such as glyphosate (Aquamaster, Roundup Pro, etc.) or triclopyr (Garlon 3A, Garlon 4, Pathfinder 11), following label directions. Repeated herbicide treatment is likely to be required for effective control. Partl1enocissus quinquefolia -Virginia creeper Cai-JPC Rating-Species not listed as invasive by Cai-IPC Virginia creeper is a deciduous ornamental vine. A patch of Virginia creeper has established within a dense patch of narrow-leaved willow (Salix exigua), and has been found to be difficult to control. The plants can be treated with an herbicide such as glyphosate (Aquamaster, Roundup Pro, etc.) or triclopyr (Garlon 3A, Garlon 4, Pathfinder II), following label directions. Care needs to be taken to prevent killing the plants that the vines are growing on and wrapping around. The vines may need to be untangled and separated from the adjacent foliage and laid carefully on the ground away from the other plants to treat with herbicide. Both foliar spray and cut stump treatment methods can work effectively. Repeated herbicide treatment is likely to be required for effective control. Pennisetum setaceum-Fountain grass Cai-IPC Rating-Moderate; Impacts-B; Invasiveness-B; Distribution - B Fountain grass was originally planted by the California Department of Transportation along freeways in the region and has spread out from there to become an invasive weed problem in some natural areas. It can be found growing along State Route 78 and in the riprap of Buena Vista Creek. Herbicide treatment is the only viable control option in this situation, and even then may prove difficult. A 5% glyphosate (Aquamaster, Roundup Pro, etc.) solution sprayed with hand-held equipment into the crown of the plant is reported to be more successful than standard foliar spraying. Refer to a current herbicide label for complete directions. Repeated herbicide treatment is likely to be required for effective control. DUDEK 17 7177 November 2014 Buena Vista Creek Channel Invasive Exotic Plant Control Plan Pl1oenix canarie11sis-Canary Island date palm Cai-IPC Rating-Limited; Impacts-C; Invasiveness-B; Distribution-D Canary Island date palm was growing in the downstream portion of the project area as this Plan was being prepared. The area where they are found was not within the former project area. There are also trees growing just upstream of the project area. Canary Island date palms are easily controlled by cutting off the growth bud found in the head, or by spraying with herbicides, such as diquat (Reward), glyphosate (Aquamaster, Roundup Pro, etc.), and pelargonic acid (Scythe). Larger palms should be cut down and removed from the channel. Alternatively, they can be killed and left in place using the herbicide injection method. Refer to the herbicide label for directions. Smaller seedling palms may be pulled if they are small enough, sprayed with herbicide, or have the growth bud cut off. Ricinus communis-Castor bean Cai-IPC Rating-Limited; Impacts-C; Invasiveness-B; Distribution-8 Castor bean can be pulled when the plants are small and the soil is moist. A weed wrench can also be used. When the soil is dry and hard, herbicide treatment will be required. Foliar spray, cut stump, or hollow-stem injection methods all work. Seedlings may be pulled when the soil is moist or sprayed with a foliar application of herbicide. Seedlings and small plants under about 2 feet tall will likely be killed by one herbicide application; larger plants may require repeat herbicide treatments to kill the plants. If plants are cut down without using follow-up herbicide treatment, repeated cutting at regular intervals will be required to kill the plants. Treatment is most effective during periods of active growth. Ideally, the plants should be controlled each year before they set seed. Herbicides that may be used on castor bean include diquat (Reward), glyphosate (Aquamaster, Roundup Pro, etc.), and pelargonic acid (Scythe). Rubus armeniacus-Himalayan blackberry Cai-IPC Rating -High; Impacts -A; Invasiveness -A; Distribution -A Himalayan blackberry is strong, highly competitive plant growing as a dense thicket among willows along Buena Vista Creek. The plants can be treated with an herbicide such as glyphosate (Aquamaster, Roundup Pro, etc.) or triclopyr (Garlon 3A, Garlon 4, Pathfinder II), following label directions. Control is reported to be better when treatment occurs during the summer months rather than during the fall, winter, or spring months. Scllinus terebintllifolius -Brazilian pepper Cai-IPC Rating-Limited; Impacts-C; Invasiveness-B; Distribution-C Brazilian pepper is a common ornamental tree species from South America that volunteers into wetland areas. The trees should be cut down and stump treated with an herbicide such as DUDEK 18 7177 November 2014 Buena Vista Creek Channel Invasive Exotic Plant Control Plan glyphosate (Aquamaster, Roundup Pro, etc.) or triclopyr (Garlon 3A, Garlon4, Pathfinder II), following label directions. Sprouting stumps can then be sprayed with a dilute herbicide solution, following label directions. Tamarix ramosissima-Salt cedar Cal-fPC Rating-High; Impacts-A; Invasiveness-A; Distribution -A The U.S. Department of Agriculture is working on biological control agents to control salt cedar, which may eventually provide adequate control over the long term. In the meantime, other methods will be required. Salt cedar is a bushy tree that can be difficult to control and will likely require repeated herbicide treatments. Salt cedar can be controlled by herbicides, using foliar spray or the cut stump method. Timing depends on the herbicide material used. Triclopyr with the trade names Garlon 4 and Pathfinder II can be used year-round, while Garlon 3A should only be used during the growing season. For glyphosate, various Roundup formulations and similar products, treatment should only be done during late spring to early fall during active growth (Bossard et al. 2000). Salt cedar can also be controlled by frilling and injecting herbicide into the cambium layer of the trunk. Isolated plants·could be left in place to decompose. Mechanical methods such as cutting the plants down without the use of herbicides are difficult because the plants have extensive root systems that will sprout new growth. If salt cedar is controlled by cutting without herbicide treatment, the stump and root sprouts will need to be repeatedly cut several times a year until there is no regrowth and the plants are dead. Seedlings may be pulled when the soil is moist or sprayed with a foliar application of herbicide. Diquat (Reward) and pelargonic acid (Scythe) are two contact killers that may be used in certain circumstances, but they provide no systemic control. Washington/a robusta-Mexican fan palm Cai-IPC Rating-Moderate-Alert; Impacts-8; Invasiveness-B; Distribution - C Mexican fan palm is widely used as an ornamental tree in the region and can be expected to continually volunteer into the project area. Mexican fan palms are easily controlled by cutting off the growth bud found in the head, or by spraying with herbicides, such as diquat (Reward), glyphosate (Aquamaster, Roundup Pro, etc.), and pelargonic acid (Scythe). Smaller seedling palms may be pulled if they are small enough, sprayed with herbicide, or have the growth bud cut off. DUDEK 19 11n November 2014 Buena Vista Creek Channel Invasive Exotic Plant Control Plan INTENTIONALLY LEFT BLANK DUDEK 20 7177 November2014 Buena VIsta Creek Channel Invasive Exotic Plant Control Plan 7 REPORTING REQUIREMENTS Mitigation Measure BI0-2 (Dudek 2013) requires the submittal of an annual monitoring report to the City of Carlsbad City Planner and City Engineer to document the invasive exotic plant species control program. CDFW will also require an annual report be submitted as a Special Condition for the 1602 Streambed Alteration Agreement that will be issued for the project. ln conjunction with the annual clearing of vegetation on Buena Vista Creek, the Restoration Biologist shall prepare a brief letter report describing the weed control efforts for the previous year. The annual reports should be submitted at the end of each calendar year. In addition, state law requires the Contractor to submit monthly pesticide use reports to the County Agricultural Commissioner documenting every pesticide application. Should an NPDES permit be required due to pesticides being applied to surface water, a separate monitoring and reporting program may be required to comply with permit conditions. The NPDES permit should be consulted for current testing, monitoring, and reporting requirements. Any reports should be submitted to the City Planner and City Engineer for forwarding to the Regional Water Quality Control Board. DUDEK 21 11n November 2014 Buena Vista Creek Channel Invasive Exotic Plant Control Plan INTENTIONALLY LEFT BLANK DUDEK 22 11n November 2014 Buena VIsta Creek Channel Invasive Exotic Plant Control Plan 8 REFERENCES Baldwin, B.G., D. H. Goldman, D.J. Keil, R. Patterson, T.J. Rosatti, and D.H. Wilken, editors. 2012. The Jepson Manual: Vascular Plants ofCalifornia. 2nd Edition. Berkeley, Calitbrnia: University of California Press. Bossard, Carla C., John M. Randall, and Marc C. Hoshovsky. 2000. Invasive Plants of California's Wildlands. Berkeley, California: University of California Press. Cai-IPC (California Invasive Plant Council). 2006. California Invasive Plant Inventory. Cai-IPC Publication 2006-02. Berkeley, California: California Invasive Plant Council. February 2006. Accessed October 2014. http://www.cal- ipc.org/ip/inventory/pdf/lnventory2006.pdf. Cal-IPC. 2007. New Weeds Added to Cal-IPC Inventory. Berkeley, California: California Invasive Plant Council. Accessed October 2014. http://www.cal- ipc.org/ip/inventory/pdf/WebUpdate2007 .pdf. California Food and Agriculture Code, Sections I 14 I 0 and 114 I I. Division 6. Pest Control Operations. Di Tomaso, Joseph M., and Evelyn A. Healy. 2003. Aquatic and Riparian Weeds of the West. Oakland, California: University of California, Agriculture and Natural Resources Publication 342 I. DiTomaso, Joseph M., and Evelyn A. Healy. 2007a. Weeds of California and other Western States, Volume 1, Aizoaceae-Fabaceae. University of California, Division of Agriculture and Natural Resources. DiTomaso, Joseph M., and Evelyn A. Healy. 2007b. Weeds of California and other Western States, Volume 2, Geraniaceae-Zygophyllaceae. University of California, Division of Agriculture and Natural Resources. Dreistadt, Steven H. 1994. Pests of Landscape Trees and Shrubs: An Integrated Pest Management Guide. Publication 3359. Oakland, California: University of California, Division of Agriculture and Natural Resources. Dudek. 2013. Final Supplemental Environmental Impact Report for the Buena Vista Creek Channel Maintenance Project, EJR 02-03(A) SCH No. 2002101015. May 2013. Dudek & Associates Inc. 2003. Buena Vista Creek Channel Exotic Plant Species Control Plan. October 2003. DUDEK 23 11n November 2014 Buena Vista Creek Channel Invasive Exotic Plant Control Plan Flint, Mary Louise, and Steve H. Dreistadt. 1998. Natural Enemies Handbook: The Illustrated Guide to Biological Pest Control. Publication 3386-H. University of California of California, Division of Agriculture and Natural Resources. Holland, R.F. 1986. Preliminary Descriptions ofthe Terrestrial Natural Communities of California. Nongame-Heritage Program, California Department ofFish and Game. October 1986. Oberbauer, T., M. Kelly, and J. Buegge. 2008. Draft Vegetation Communities ofSan Diego County. March 2008. Accessed October 2014. http://www.sdcanyonlands.org/canyon- groups/canyon-group-resources/canyon-enhancement-guide/189-canyon-enhancement- planning-guide-materials. Tu, M., Hurd, C., & J.M. Randall. 2001. Weed Control Methods Handbook: Tools & Techniques for Use in Natural Areas. The Nature Conservancy. Apri12001. U.S. Environmental Protection Agency. 1999. Protecting Endangered Species: Interim Measures for Use of Herbicides in San Diego County. December 1999. DUDEK 24 7177 November 2014 ~ H (.) c: .... (b on (.) (.) (b 0 a.. 0 u ~~ .. 0 <a z ~ I ~ 0 5 liS ~ ~ iii ! lli w 5 ~ "' > ~ w i ::r:: w ~ Q ... ;: ::) Q Buena Vista Creek Channel Invasive Exotic Plant Control Plan INTENTIONALLY LEFT BLANK DUDEK 26 7177 November 2014 z :5 ... i ~ 0 ~ i ~ I ... w z ~ " Ill w "' 0 ~ II) > ~ i ~ w 0 ::: :J :: 0 Buena Vista Creek Channel Invasive Exotic Plant Control Plan JNTENTIONALL Y LEFT BLANK DUDEK 28 7177 November 2014 c i I c lj c f. t ali • • ?! • = .5 .. c c II .c 0 1 0 I > II c i :.1 ~ a:l t: w ...1 > ...1 ...1 < ~ ~ ~ 1::~ O:::lil 1 Iii :Ill: w Q ;:) Q ~ natures 1mage Modified Proposal, Buena Vista Creek FEE SCHEDULE 2015 INCLUDING NEW AREA (SECTION 1) Item !!!!!! ~ Unit Cost Total Cost Exotics MginJenance Year I Visits 3 $5,533:00 $16,599.00 Year2 Visits 3 $4,452.00 $13,356.00 Year3 Visits 3 $3,678.00 $11,034.00 Year4 Visits 3 $3,678.00 $11,034.00 YearS Visits 2 $3,711.00 $7,422.00 Monitoring (Shall be paid T&M based on the attached rate schedule) Year 1 LS $17,374.00 Year 2 LS $17,374.00 Year 3 LS $15,113.00 Year4 LS $15,113.00 Year 5 LS $15,113.00 Adjusted Channel Clearing (Shall be paid T&M based on the attached rate schedule) Year 1-Section 1 Est 33 Working days $70,354.00 Year 2-Section 2 Est. 25 Working days $55,004.00 Year 3-Section 3 Est. 15 Working days $34,437.00 Year 4-Section 4 Est. 22 Working days $50,357.00 Year 5-Section 5 Est. 20 Working days $43,647.00 Year 1 YearS LS LS Bat Survey Pagel of4 $2,571.00 $3,795.00 20361 Herman a Circle, lake Forest, CA. 92630 • P 949 680 4400 • F 949 880 4450 • www.naturesimagenst • Cl720513 healing environments. ~ natures 1mage Equipment, Personnel and Materials Rates 2015 Equipment (without operators) 40 Yard Bin/Dump Fees (invoice+ I 5%) Backpack Sprayer 5 Yard Dump Truck Personnel Laborer Foreman Project Manager Materials Worker Safety Equipment (gloves, suites, safety glasses) $12/Day/Person Aquatic-Approved Glyphosate (Roundup Custom) Aquamaster Fusiladell Herbimax Surfactant Dye (Generic) Monitoring Biologists Task Lead -Field Biologist Chez or Griffin Brungraber Support Task Lead -Asst. Field Biologist Lee Ripma or Jim Rocks E:xoenses Unit Price $600-$ I ,000/Day $2/ Day $375/ Day Unit Price $34/Hour $43/Hour $90/Hour Unit Priee $55/Gal $138/ Gal $80/Qt $17/ Gal $35/Gal $45/Gal $90/hour $85/hour Mileage rates will be billed at the current governmental rate for the biological monitors. For 2014, the rate is 0.56/mile. Reimbursable items (if any) shall be billed at cost+ 15% and may include but are not limited to printing, shipping fees, specialty equipment. Additional services beyond this scope of work would be billed on a time and materials basis on written authorization from the City. NOTE: This proposal includes Jefferson Bridge, the channel from Jefferson Bridge upstream to the Coastal Zone border, and Vista Way Bridge. The area described above added approximately 3.13 acres to the project. Page 3 of4 20361 Herrnana Circle, lake Forest, CA. 92630 • P 949 680 4400 • F 949 680 4450 • www.naturesimage.net • CL 720513 healing environ~nents. ~ natures 1mage INCLUSIONS & NOTES: Natures Image, Inc. is a non-union company. Items not specified in this bid are neither implied nor included. Need fully executed contract 14 days prior to start of work. This proposal shall become an addendum to any contract with the terms set forth in this addendum which shall supersede any conflicting terms in any other contract documents. Tasks included: weeding, site maintenance, exotic species removals, reports, pesticide and herbicide spraying, spraying retreatments, bat surveys, channel clearing, and site maintenance. This proposal includes complying with the California Department ofFish and Wildlife Permits. Bid Price: Good for 90 days Terms: Net 30 days Jf you have any questions, do not hesitate to contact myself or Michelle Caruana at 949-680- 4400. Thank you for the opportunity to provide this proposal. Sincerely, NATURES IMAGE, INC. Grady Banister Estimator Page 4of4 20361 Hennana Circle, lake Forest, CA. 92630 • P 949 680 44011 • F 949 680 4450 • WWIN.naturesimage.net • Cl7205t3 beating environ•ents. ~ natures tmage February 2, 2015 Ms. Sherri Howard Associate Engineer, Utilities Engineering Division City of Carlsbad Public Works Department 1635 Faraday Avenue Carlsbad, CA 92008 Dear Ms. Howard, EXHIBIT 7 Enclosed please find the adjusted proposal for the long term maintenance of Buena Vista Creek, with the additional area in the Coastal Zone and the two bridge bat surveys included. The original scope included five sections. Using the aerial map on page 67 of the RFP the additional area added 3.13 acres to the scope. The new map mentioned above kept the number of sections at five but increased the project area by approximately 27%. All five sections changed in size. Also the sections are numbered starting from Jefferson Bridge to the Coastal Zone boundary as Section 1, so to avoid confusion when referring to the map, the sections now start with #I to the south and end at section #5 at Vista Way Bridge to the north. The tasks will still be invoiced per our proposal dated February 2. However we have adjusted our estimated working days to reflect the new scope of.work. After looking at the added section (Section #1) and reviewing the work done at the initial start up ofthe Buena Creek Maintenance, we believe the initial channel clearing and exotics maintenance will require some additional effort compared to the sections we have been maintaining for the last ten years. That additional effort is reflected in the following Lump Sum Fee Schedule provided. Additionally, the monitoring will increase due to our increased number of working days. This is a Time and Materials Job so the pricing provided should be treated as budget numbers rather than billable amounts per task. Please note, the RFP did not describe the twin culvert maintenance which we had previously performed. The newly added section does add an additional outlet. We did not provide pricing for the outlet maintenance since it was not requested in the RFP. The twin culvert maintenance historically was a monthly task. If maintenance work is desired the T. & M. rates can apply. FoiJowing is the Modified Proposal for Buena Vista Creek. Page 1 of4 20361 Hennana Circle, Lake Forest CA. 92630 • P 949 680 4400 • F 949 680 4450 • www.naturasimage.net • Cl720513 llealing ••vironmants. EXHIBITS PROPOSAL SUMMARY BY YEAR AND ITEM AGREEMENT FOR BUENA VISTA CREEK MAINTENANCE AND MONITORING (NATURE'S IMAGE) Item Description Year! Y~ar:2w'·'·· ,, Year3 vear4· YearS TOT~&; CONTRACT Exotic Maintenance (T&M) $ 16,599.00 ::$ /t3;3S6~qo· $ 11,034.00 $;'ll,034~00 $ 7,422.00 $~ .. .5~,445~0() . Monitoring $ 17,374.00 $ ., 111~7~tkt $ 15,113.00 $'J 15~113J)O $ 15,113.00 $ 80,087.00 Adjusted Channel Clearing (T&M) $ 70,354.00 s ss~oo4~oo $ 34,437.00 $ 50,357.00 $ 43,647.00 $ zsa;799~oo Bat Survey $ 2,571.00 . :, $ 3,795.00 $ 6,366~00 ANNUAL TOTAL $106,898.00 $ 85,734~00 $ 60,584.00 $ 76,504.00 $ 69,977.00 $ 399,697.00