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HomeMy WebLinkAbout2024-05-14; City Council; Resolution 2024-100RESOLUTION NO. 2024-100 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, AUTHORIZING AN AGREEMENT TO PURCHASE 1.88 ACRES OF HABITAT MITIGATION BANK CREDITS IN THE AMOUNT OF $1,222,000 FOR REMOVAL OF SEDIMENT AND VEGETATION IN THE BUENA VISTA CREEK CONCRETE CHANNEL NEAR EL CAMINO REAL WHEREAS, on Feb . 4, 2024, the Governor of the State of California found that conditions of extreme peril exist in San Diego County and other counties due to the early February 2024 storms caused by an atmospheric river and proclaimed a state of emergency to make additional resources available to local governments, formalize emergency actions, and help the state prepare for the impact of the storms; and WHEREAS, the City Council empowers the City Manager, as Director of Emergency Services or, in the City Manager's absence, the Assistant City Manager, as Acting City Manager and Acting Director of Emergency Services, to proclaim the existence of a local emergency when the city is affected by a public calamity and the City Council is not in session; and WHEREAS, conditions or threatened conditions of extreme peril to the safety of persons and property arose within the City of Carlsbad caused by a powerful, slow moving, atmospheric river in early February that resulted in debris flows, or a "sediment-dominated slurry", which inundated the Buena Vista Creek and significantly diminished capacity in the Buena Vista Creek concrete channel (begins approximately 600 feet west/downstream of the El Camino Real bridge and extends upstream of the bridge approximately 230 feet); and WHEREAS, on Feb. 8, 2024, the Acting City Manager/ Acting Director of Emergency Services proclaimed a storm-related local emergency for removal of sediment and vegetation in the Buena Vista Creek concrete channel near El Camino Real ; and WHEREAS, on Feb. 13, 2024, the City Council ratified the proclamation of a storm-related local emergency for removal of sediment and vegetation in the Buena Vista Creek concrete channel near El Camino Real; and WHEREAS, on Feb. 27, 2024, the City Council continued the proclamation of a storm-related local emergency for removal of sediment and vegetation in the Buena Vista Creek concrete channel near El Camino Real; and WHEREAS, on March 12, 2024, the City Council continued the proclamation of a storm-related local emergency for removal of sediment and vegetation in the Buena Vista Creek concrete channel near El Camino Real again and authorized additional appropriations in the amount of $474,000; and WHEREAS, on March 19, 2024, March 26, 2024, April 9, 2024, and April 16, 2024, the City Council continued the emergency proclamation again; and WHEREAS, on April 23, 2024, the City Council continued the emergency proclamation again and authorized a transfer of funds in the amount of $1,427,000 from the Buena Vista Creek Concrete Channel Maintenance at El Camino Real, Capital Improvement Program, or CIP, Project No. 6619, to the Storm Drain System Rehabilitation and Repair Program, CIP Project No. 6607, which includes sufficient funding for habitat mitigation costs; and WHEREAS, on Feb. 27, 2024, the U.S. Army Corps of Engineers issued a Regional General Permit (RGP) 63 -Repair and Protection Activities in Emergency Situations; and WHEREAS, on Feb. 28, 2024, the San Diego Regional Water Quality Control Board informed staff that in accordance with Water Quality Order No. 2023-0095-DWQ, or Order, Clean Water Act Section 401 Water Quality Certification for U.S. Army Corps of Engineers Reauthorization of Regional General Permit 63 (RGP 63) for Emergency Repair and Protection Activities Project, the Notice of Intent is complete, and the Project is enrolled under the Order; and WHEREAS, on March 5, 2024, the U.S. Army Corps of Engineers sent a verification letter on the permit which superseded its Feb . 27, 2024, letter, which stated that work authorized by the permit must be underway no later than 14 calendar days from date of issuance of the letter of verification, or by March 19, 2024, and that all work must be completed no later than April 22, 2024, and if it is not then the city must request, in writing, an extension from the Corps' Regulatory Division prior to the deadline; and WHEREAS, the contractor started emergency work on March 8, 2024, and completed the emergency work in the concrete section of the channel by the authorized date of April 22, 2024; and WHEREAS, on April 17, 2024, the regulatory agencies indicated a habitat mitigation ratio of 1:1 would be acceptable for the emergency work in the concrete section of the channel; and WHEREAS, on April 25, 2024, staff received an estimate of habitat mitigation costs for the .work already authorized by the regulatory agencies with the impacted area estimated at 1.88 acres, at a cost of $1,222,000 for mitigation; and WHEREAS, on May 7, 2024, City Council terminated the proclamation of a local emergency for the Buena Vista Creek concrete channel; and WHEREAS, staff now request that the City Council authorize an agreement with Wildland SLR Holdings I, LLC to purchase 1.88 acres of habitat mitigation bank credits in the amount of $1,222,000 to satisfy the regulatory requirements for the project; and WHEREAS, under California Public Resources Code Section 21080(b)(3) and Title 14, Section 15269 of the California Code of Regulations, the requirements of the California Environmental Quality Act do not apply to projects undertaken, carried out, or approved by a public agency to maintain, repair, restore, demolish, or replace property or facilities damaged or destroyed as a result of a disaster in a disaster-stricken area in which the Governor of the State of California has proclaimed a state of emergency, and on Feb. 4, 2024, the Governor found that conditions of extreme peril existed in San Diego County and proclaimed a state of emergency. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as follows: 1. That the above recitations are true and correct. 2. That the Mayor is authorized to sign an agreement to purchase 1.88 acres of habitat mitigation bank credits in the amount of $1,222,000, attached herein as Attachment A. PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 14th day of May, 2024, by the following vote, to wit: AYES: NAYS: ABSTAIN: ABSENT: BLACKBURN, BHAT-PATEL, ACOSTA, BURKHOLDER, LUNA. NONE. NONE. NONE. KEITH BLACKBURN, Mayor SHERYFREISINGER, City Clerk (SEAL) AGREEMENT FOR SALE OF MITIGATION CREDITS SAN LUIS REY MITIGATION BANK USACE RGP 63 File No. SPL-2024-00147-MER RWQCB File No. R9-2024-0052:893548 This Agreement is made and entered into this \ fjl'.l day of M, � � , 2024 by andbetween WILD LANDS SLR HOLDINGS I, LLC, a Delaware limited liabilty company ("Bank Sponsor") and the CITY OF CARLSBAD, a California charter city ("Project Proponent"), as follows: RECITALS A.Bank Sponsor has developed the San Luis Rey Mitigation Bank ("Bank") locatedin San Diego County, California; and B.The Bank has been developed pursuant to a Bank Enabling Instrument enteredinto by and between Bank Sponsor, United States Army Corps of Engineers ("USA CE"), and California Department of Fish and Wildlife ("CDFW"); and C.Bank Sponsor has received the approval of the USA CE and CDFW to operate theBank as a mitigation bank with wetland waters of the United States/State credits, waters of the United States/State credits and buffer credits for sale as compensation for the loss of waters of the United States, waters of the State and/or State jurisdictional habitats; and D.Project Proponent implemented the project described on Exhibit "A" attached hereto ("Project"), which unavoidably and adversely impacted waters of the United States and/or waters of the State thereon, and seeks to compensate for such impacts by purchasing compensatory credits from Bank Sponsor; and E.Project Proponent has been authorized by USA CE under Regional GeneralPermit ("RGP") No. RGP 63 (File No. SPL-2024-00147-MER) and by Regional Water Quality Control Board ("RWQCB") enrollment under Water Quality Order No. 2023-0095-DWQ (File No. R9-2024-0052:893548) to purchase from Bank Sponsor 1.88 acres of establishment and/or re-establishment mitigation credits to compensate for impacts to waters of the U.S.; and F.Project Proponent desires to purchase from Bank Sponsor and Bank Sponsordesires to sell to Project Proponent 1.88 acres of total credits at Bank comprised of 0.4 7 acre of Re-established River: Wetland Waters of the U.S./State credits and 1.41 acres of Re-established Floodplain: Waters of the U.S./State credits (collectively, the "Credits"). Attachment A I 2 NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS: 1.Bank Sponsor hereby agrees to sell to Project Proponent and Project Proponent hereby agrees to purchase from Bank Sponsor 1.88 Credits for the purchase price of $1,222,000.00 (“Purchase Price”). The Purchase Price for said Credits shall be paid by wire transfer of funds according to written instructions by Bank Sponsor to Project Proponent, or by check payable to “Wildlands SLR Holdings I, LLC.” Upon receipt of the Purchase Price, Bank Sponsor will deliver to Project Proponent an executed Bill of Sale in the form attached hereto as Exhibit “B.” 2.The sale and transfer herein are not intended as a sale or transfer to Project Proponent of a security, license, lease, easement, or possessory or non-possessory interest in real property, nor the granting of any interest of the foregoing. 3. Project Proponent shall have no obligation whatsoever by reason of the purchase of the Credits, to support, pay for, monitor, report on, sustain, continue in perpetuity, or otherwise be obligated or liable for the success or continued expense or maintenance in perpetuity of the Credits sold, or the Bank. As required by law, Bank Sponsor shall monitor and make reports to the appropriate agency or agencies on the status of any Credits sold to Project Proponent. Bank Sponsor shall be fully and completely responsible for satisfying any and all conditions placed on the Bank or the Credits, by all state or federal jurisdictional agencies. 4.The Credits sold and transferred to Project Proponent shall be nontransferable and non-assignable and shall not be used as compensatory mitigation for any other Project or purpose, except as set forth herein. 5.Project Proponent must deliver the Purchase Price to Bank Sponsor within 30 days of the date of this Agreement. After the 30-day period, this Agreement will be considered null and void and Bank Sponsor shall have no further obligations hereunder. [signatures on following page] IN WITNESS WHEREOF, the parties have executed this Agreement the day and yearfirst above written.BANK SPONSOR: WILDLANDS SLR HOLDINGS I, LLC, a Delaware limited liability companyBy: 4Name: Yttr£:�-i Title: MA-�Date: M11A1 I 12ollj PROJECT PROPONENT: CITY OF CARLSBAD, a California chartercityBy: t� Name: � &\ r;\o.e,��(n Title: M A.. ':Jo{Date: �j \ry 11,6v1 APPROVED AS TO FORM: CIN . McMAHON, City Attorney�Jv 3 4 Exhibit “A” DESCRIPTION OF PROJECT TO BE MITIGATED The Project includes the discharge of dredged material associated with the removal of a total of up to 17,860 cubic yards of accumulated sediment, debris, and vegetation within a total of approximately 1.88 acres (1,000 linear feet) of non-wetland waters of the U.S., Buena Vista Creek, in order to alleviate the immediate emergency situation. The Project is located immediately east of South Vista Way to approximately 250 feet east of El Camino Real, in the city of Carlsbad, San Diego County, California (Latitude: 33.1807, Longitude: -117.3265). ------------------------------------------------------------------------------- 5 Exhibit “B” BILL OF SALE Contract # SLRMB-24-___ USACE RGP 63 File No. SPL-2024-00147-MER RWQCB File No. R9-2024-0052:893548 In consideration of $1,222,000.00, receipt of which is hereby acknowledged, WILDLANDS SLR HOLDINGS I, LLC, a Delaware limited liability company (“Bank Sponsor”) does hereby bargain, sell and transfer to the CITY OF CARLSBAD, a California charter city (“Project Proponent”), 1.88 acres of total credits comprised of 0.47 acre of Re- established River: Wetland Waters of the U.S./State credits and 1.41 acres of Re-established Floodplain: Waters of the U.S./State credits (collectively, the “Credits”) for the 2024 Buena Vista Creek Emergency Channel Maintenance Project, in the San Luis Rey Mitigation Bank in San Diego County, California, developed and approved under the authority of the United States Army Corps of Engineers and California Department of Fish and Wildlife. Bank Sponsor represents and warrants that it has good title to the Credits, has good right to sell the same, and that they are free and clear of all claims, liens, or encumbrances. DATED: _______________________________________ WILDLANDS SLR HOLDINGS I, LLC, a Delaware limited liability company By: _________________________________________ Name: Its: M:marketing\Agreement\ saleSLR_Carlsbad BVC Emergency 1.88 Revised: 4/25/2024