HomeMy WebLinkAboutAgenda Packet 1994/12/20-Item 10
CITY COUNCIL AGENDA STATEMENT
Item 10
Meeting Date 12/20/94
ITEM TITLE: Resolution \î1b; Approving a California Endangered Species Act
Memorandum of Understanding with the California Department of Fish
and Game Relating to Otay Valley Road Widening, Authorizing the
Issuance of a Letter of Credit to Secure City's Obligations under Same,
and Authorizing the Mayor to Execute all Documents in Connection
Therewith
SUBMITTED BY: Director of Public Works ~ S ,
Director of Community Development ( -
City Attorney ~Gv-lð1Þtß
REVIEWED BY: City Manager 1fi\, (4/Sths Vote: Yes _ No-X)
BACKGROUND: The City Council on June 7, 1994, by Resolution 17518, accepted bids and
awarded a contract for Phases 2 and 3 of the Otay Valley Road improvements within Assessment
District 90-2. Phases 2 and 3 include improvements to the 1,200 foot length of Otay Valley
Road immediately east of Nirvana Avenue. In order to implement Phases 2 and 3 of the Otay
Valley Road Widening Project the City will need to disturb certain wetlands habitats in the path
of the project which are occupied by the endangered least Bell's Vireo. Any project which
causes such a disturbance requires a permit from the California Department of Fish and Game
("Fish and Game") pursuant to Section 2081 of the California Fish and Game Code. City staff
has been negotiating the terms for this permit with Fish and Game over the past 14 months.
These terms are set forth in the California Endangered Species Act Memorandum of
Understanding ("Fish and Game MOU") which is presented hereby for your consideration.
Council approval of the Fish and Game MOU is necessary at this time in order to permit the
timely commencement and completion of Phases 2 and 3 of the road widening project.
RECOMMENDATION: That the Council approve the Fish and Game MOU, authorize the
issuance of the Letter of Credit securing City's obligations thereunder, and authorize the Mayor
to execute all documents in connection therewith.
BOARDS/COMMISSIONS RECOMMENDATION: Not applicable.
DISCUSSION:
The proposed Fish and Game MOU places a number of conditions on Phases 2 and 3 of the
Otay Valley Road Widening project (the "Project"). The most important of these conditions are
as follows:
1. At its sole cost, the City must acquire, preserve, restore and enhance 12.66 acres of
"habitat management lands". (In accordance with Fish and Game standards, this amount
of acreage is a "ratio" of the amount of acreage actually being "taken" by the Project.)
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2. At its sole cost, the City must convey either a fee interest or a conservation easement in
such Property to Fish and Game (or its designee).
3. At its sole cost, for a five year period after the transfer of the Property, the City will be
responsible for maintenance, monitoring and replacement of failed vegetation at the
Property. (Thereafter, Fish and Game will be responsible for maintaining the habitat.)
4. The City must acquire, enhance and convey the Property within 12 months of Fish and
Game's approval of the Agreement.
5. In order to secure the City's acquisition and habitat enhancement obligations, the City
must post an Irrevocable Letter of Credit in the amount of $310,000. (The $310,000
figure represents the City's own estimate of the cost of performing its obligations under
the Fish and Game MOD.) In the event that the City fails to perform such obligations,
Fish and Game has the right to draw upon the Letter of Credit to the extent necessary
to perform the obligations itself. (Funding for the Letter of Credit (and for the
acquisition and enhancement work itself) has already been obtained through the issuance
of bonds by Assessment District 90-2. This Assessment District was formed in 1990 to
fund the Otay Valley Road widening project.)
These terms are fairly standard for this type of agreement with Fish and Game. The only
somewhat unique provision is the requirement that the City secure its obligations with a Letter
of Credit. While such security is typica,lly required of private developers, City staff does not
recall being required to post security for its obligations to Fish and Game in the past. The
problem with posting a Letter of Credit is that monies in the City's general investment account
must be shifted to a separate account which is, in effect, dedicated to the Letter of Credit
obligations. This separate account may earn less interest than the City's pooled investment
account. Furthermore, the Bank will charge the City a fee equal to 1-1/4% of the amount of the
Letter of Credit (in this case $3,875) for each year the Letter of Credit is in place. During
negotiations, Fish and Game staff has maintained that the security requirement is regularly
imposed on both private developers and public agencies and have been firm in their request for
some form of security. Admittedly, City staff's experience with this issue is very limited in that
historically few public works projects have required Fish and Game approval. Accordingly, in
order to obtain Fish and Game authorization which would allow the timely commencement of
the Phase 2 and 3 roadwork, City staff recommends approving the Fish and Game MOD in its
current form. Following City Council approval, City Staff will continue to work with Fish and
Game in order to negotiate a modification or an amendment to the Fish and Game MOD which
might minimize or remove the Letter of Credit requirement. Council direction to staff to
attempt to negotiate such a change is contained in the Resolution presented for your approval
on this item.
About half of the 12.66 acres of enhanced habitat required by the Fish and Game MOD related
to Phase I of the Otay Valley Road widening project and have already been obtained by the
City. The City is currently in the process of obtaining the remaining acreage required for
Phases 2 and 3. Staff has some concern that the acreage previously designated for wetlands
mitigation under the Fish and Game MOD may prove unsuitable due to potential groundwater
contamination. However, if the specific acreage currently targeted by staff and Fish and Game
proves unsuitable for habitat enhancement purposes, staff is confident that an alternative site can
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be identified, acquired, enhanced and transferred without exceeding the existing budget for this
purpose, and within the requisite 12 month time frame.
A copy of the proposed Fish and Game MOD is attached hereto as Exhibit A.
FISCAL IMPACT: All amounts necessary to fund the City's obligation under the Fish and
Game MOD (including the Letter of Credit costs) have been previously appropriated and will
be payable out of the Assessment District budget. If required by Fish and Game, the Letter of
Credit is expected to cost approximately $3,875 in bank fees (1-1/4% per year of the face
amount of $310,000). and a nominal amount in potential lost interest over the life of the reduced
interest separate account which will need to be set up to underwrite the Letter of Credit
obligation.
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RESOLUTION NO. rn~
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING A CALIFORNIA ENDANGERED
SPECIES ACT MEMORANDUM OF UNDERSTANDING WITH
THE CALIFORNIA DEPARTMENT OF FISH AND GAME
RELATING TO OTAY VALLEY ROAD WIDENING,
AUTHORIZING THE ISSUANCE OF A LETTER OF CREDIT
TO SECURE CITY'S OBLIGATIONS UNDER SAME, AND
AUTHORIZING THE MAYOR TO EXECUTE ALL DOCUMENTS
IN CONNECTION THEREWITH
WHEREAS, the city Council on June 7, 1994, by Resolution
17518, accepted bids and awarded a contract for Phases 2 and 3 of
the otay Valley Road improvements within Assessment District 90-2,
which phases include improvements to the 1,200 foot length of Otay
Valley Road immediately east of Nirvana Avenue; and
WHEREAS, in order to implement Phases 2 and 3 of the otay
Valley Road Widening Project, the City will need to disturb certain
wetlands habitats in the path of the project which are occupied by
the endangered least Bell's Vireo; and
WHEREAS, any project which causes such a disturbance
requires a permit from the California Department of Fish and Game
("Fish and Game") pursuant to section 2081 of the California Fish
and Game Code; and
WHEREAS, City staff has been negotiating the terms for
this permit with Fish and Game which terms are set forth in a
California Endangered Species Act Memorandum of Understanding
("Fish and Game MOU"); and
WHEREAS, Council approval of the Fish and Game MOU is
necessary at this time in order to permit the timely commencement
and completion of the road widening project.
NOW, THEREFORE, BE IT RESOLVED the City Council of the
City of Chula vista does hereby approve the California Endangered
Species Act Memorandum of Understanding with the California
Department of Fish and Game relating to Otay Valley Road widening,
a copy of which shall be placed on file with the city Clerk as
Document No. , and authorize the issuance of a letter of
credit to secure the City's obligations under same.
BE IT FURTHER RESOLVED that staff is authorized and
directed to attempt to negotiate modifications or amendments to the
approved Fish and Game MOU, subject to approval of the City
Attorney, which eliminate or reduce the cost of the City's security
obligations thereunder.
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BE IT FURTHER RESOLVED that the Mayor is hereby
authorized to execute the Fish and Game MOU, the Letter of Credit
or other security documents required thereby, and any related
documents, in a final form approved by the City Attorney.
Presented by Approved as to form by
Chris Salomone, Director of ~~t~
Community Development
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Tracking No. 9336
CALIFORNIA ENDANGERED SPECIES ACT
MEMO~UMOFmmE~TANDffiG
by and between
THE CITY OF CHULA VISTA
and
CALIFORNIA DEPARTMENT OF FISH AND GAME
regarding
Otay Valley Road Widening
This California Endangered Species Act Memorandum of Understanding ("CESA
MOU") is made and entered into by and between The City ofChula Vista, hereafter referred to
as "the City", and the California Department ofFish and Game, hereafter referred to as the
"Department" .
The purpose of this CESA MOU, governing the management of the least Bell's
vireo, is to provide authority to "take" the identified state-listed threatened and endangered
species under authority of Section 2081 of the California Fish and Game Code. The pennitted
activities inclúde the project as described in the attached California Endangered Species Act
Management Authorization (Exhibit 1) and in the Fish and Wildlife's Biological Opinion on the
Otay Valley Road Widening Project's effects on the least Bell's Vireo and coastal California
gnatcatcher (Attachment A to Exhibit 1). The described actions are to be undertaken as
management activities for the benefit of the listed threatened and endangered species in order
that the proposed project does not result individually or cumulatively in the destruction or
adverse modification of habitat essential to the continued existence of the listed species. The
City's obligations are as specified in this CESA MOU and as further set forth in the California
Endangered Species Act Management Authorization, attached hereto as Exhibit 1 and which
shall be executed contemporaneously with this CESA MOU.
WHEREAS, the City proposes to manage habitat ofleast Bell's vireo, which is
known to occur at the project site, and desires to minimize impacts to least Bell's vireo, which is
known to occur in the vicinity of the project site.
WHEREAS, pursuant to California Fish and Game Code Section 1802, the
Department has jurisdiction over the conservation and protection of fish, wildlife, and native
plants and their habitat and holds those resources in trust for the people of California:
WHEREAS, the Department desires, consistent with the policies of the
1 CESA MOU/City of Chula Vista
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California Endangered Species Act, that there is pennanent protection for the above-named
state-listed species and their habitat to assure the conservation, protection, restoration,
enhancement, and management of such listed species.
AND, WHEREAS, the City agrees to undertake the management activities
contained in this CESA MOU and all exhibits attached hereto.
NOW THEREFORE, the parties agree as follows:
L DEFINITIONS
The following definitions shall govern this CESA MOU:
Wildlife - Wildlife sha11 be defined consistent with the definition found at
California Fish and Game Code Section 711.2 to mean all wild animals, birds, plants, fish,
amphibians, reptiles, and related ecological communities, including the habitat upon which the
wildlife depends for its continued viability.
~ - Take shall be defined to include any act without regard to intent which
results in the destruction of individuals, populations of individuals, or habitat upon which these
individuals or populations rely for the continued viability of the species. (See Palila v. Hawaii
Dent of Land and Natural Resources. D. Hawaii 1986,649 F.Supp. 1070, affd. 852 F.2d 1106.)
Operation manaiement and protection - These tenns shall mean those actions
required, in the discretion of the Department, to pennit the species to function within a natural
ecological system. Such actions may include management actions of a legal, biological, or
administrative nature.
D. DUTIES
A. Convevance of Habitat Management Lands
1. The City covenants and agrees to acquire, preserve, restore and enhance
12.66 acres of habitat management (HM) lands as expressly provided below. The City
covenants and agrees to transfer in fee or place an easement in favor of the Department or an
approved designated agent on the required 12.66 acres ofHM lands to the Department or to an
approved designated agent. Such designated agent may include the Nature Conservancy, The
Trust for Public Lands, or any other non-profit entity organized for conservation purposes, which
is acceptable to, and approved by, the Department. The required HM lands acreage is based
upon a biological assessment of the project's impact on listed species and an estimated acreage
required to provide for enhanced biological carrying capacity at a replacement location.
Management of the species has been detennined by the facts of this application to require 12.36
acres ofHM lands to replace the biological carrying capacity ofJ.09 acres subject to temporary
2 CESA P'OOI City of Chu1a Vista
11-1-94 I Otay Valley Road
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and\or pennanent impact at the project site. An additional 0.3 acres ofHM lands will be used for
marsh impacts mitigation. Such replacement habitat will offset the permanent loss and\or
temporary disturbance resulting fTom the construction and installation of the Otay Valley Road
Widening. The City also shall nùtigate with 1. 41 acres on-site for the temporary impacts of 1.41
acres.
2. The City covenants and agrees to acquire and to transfer to Ute
Department 12.66 acres ofHM lands in fee title or with a conservation easement interest
acceptable to the Department, substantially in the form of Exhibit 3. This HM land transfer
meets the habitat transfer requirements of both Exhibit 1 and Streambed Alteration Agreement 5-
416-92 and the amendmentto 5-416-92 (AttachmentsB and C to Exhibit 1). The City also
covenants and agrees to complete the habitat protection activities required by this CESA MOU
and all attached and incorporated documents within 12 months of the execution of this CESA
MOU. If the City fails to complete the duties identified in this CESA MOU within 12 months of
execution of this CESA MOU, the Department, at its option, may demand that the City cure its
breach forthwith. If, after 12 months fTom the date of execution of this CESA MOU, any of the
acquisition, transfer, protection, or management duties detailed in this CESA MOU, including
Exhibit I, are not completed, the Department may draw upon the security to complete the task.
Additionally or in the alternative the Department may seek all legal remedies available at law or
in equity.
3. AIl HM lands shall be approved by the Department for biological
suitability. The documents conveying such lands and the conditions of title shall be approved
prior to acceptance by either the Fish and Game Commission or the Department acting through
the Wildlife Conservation Board. No approval shall be final until the lands are inspected and
evaluated by the Department. The Department of General Services shall review, and the
Department shall review and approve, a preliminary title report for the HM lands and the
instruments conveying the real property interests to the Department or other entity. The
conveyance of the HM lands shall be subject only to those conditions oftitle approved by the
Department.
B. Habitat Management Lands Protection
4. The City covenants and agrees to conduct the protection activities
described in the California Endangered Species Management Authorization as detailed in
Exhibit 1 of this CESA MOU and in all other attached and incorporated documents and exhibits.
C. Securitv
5. The City covenants and agrees to secure, as provided in section IV of this
CESA MOU, its covenant to acquire, place an easement on, and protect 12.66 acres of approved
HM land.
3 CESA t()Uf C1ty of Chu'. V1sta
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D. Proiect Mitigation Measures for Species Protection
8. The City covenants and agrees to comply with the project related
ßÙtigation measures set forth in Exhibit I of this CESA MOU and in all other attached and
incorporated documents and exhibits attached hereto.
m. ESTIMATED COSTS
The parties to this CESA MOU estimate that the direct cost of acquiring, placing
an easement on, protecting, and managing lands will be as set forth below:
1. Acquisition/easement purchase of suitable habitat management lands.
Phase I and Phase ill off-site management lands of 6.48 acres have already been acquired. Phase
II, purchase of an easement in favor of the Department on6.18 acres of management lands, is
projected to be $129,000 ($126,000 for land purchase + $3,000 closing costs).
2. Habitat enhancement, revegetation, maintenance, and monitoring, as
required by Attachments Band C, is projected to be $181,000.
3. Notwithstanding the above estimates, in the event that costs exceed the
projected amounts, the City shall not be released trom perfonnance of the duties contained
herein. In the event that costs of performance of acquisition and protection duties are less than
estimated, the City shall retain title to any funds not expended.
IV. SECURITY [IRREVOCABLE LETTER OF CREDIT]
1. As security for the performance of its obligations under this CESA MOU,
the City hereby agrees to procure and to deliver to the Department upon execution of this CESA
MOU an Irrevocable "Standby" Letter of Credit ("CREDIT") in the stated amount of Three
hundred and ten thousand Dollars ($310,000), substantially in the fonn attached as Exhibit 2.
Such CREDIT shall be delivered to the Department's General Counsel for approval as to fonn.
The General Counsel shall then transfer the CREDIT to the accounting officer for safe keeping.
The tenn of the CREDIT shall be for a period of not less than 3 years.
2. In selecting a bank or other financial institution as issuer of such CREDIT,
the City shall choose an entity which operates an office or branch in Sacramento, California, and
at least two other cities within California.
3. The Department shall have the ability to draw any amount up to the
Principal Sum of this CREDIT, in one or more drawings, upon default by the City as specified in
section V of this CESA MOU. The Department may request a release of funds trom the credit to
assist the financing of the City's performance of its obligations hereunder.
4 CESA ~I City of Chu1a Vista
11-1-94 / Ota,y Valley Road
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4. Each demand made upon the CREDIT shall be based upon a reasonable estimate
of the costs necessary to cure the adverse effects of the City's default, including, but not limited
to, administrative costs and costs for employment of third parties for the purpose of
implementing the requirements and goals of this CESA MOU. Administrative costs shall be set
at a rate of twenty-five (25) percent of the total of other non-administrativè costs.
5. Within three (3) business days ftom any draw made by the Department on
the CREDIT, the Department shall notify the City that such a draw has occurred. The
Department shall thereafter allow the City fifteen (15) days to cure such default.' If the default is
cured within such time, the Department shall transfer to the City the funds drawn because of the
default, less any administrative or other costs proximately caused by the default. If the default is
not cured, the Department shall use the funds for purposes of curing the default.
6. Upon timely request and upon presentation of documentary evidence of
full compliance with the terms and the conditions of this CESA MOU, including Exhibit 1, the
Department shall effectuate a cancellation of the CREDIT if such full compliance occurs prior to
the natural expiration of the CREDIT.
V. DEFAULT
In the event of a default, the Department shall have all rights with respect to the
security and all remedies available at law or equity including specific perfonnance, injunction,
and without limitation of all rights of a secured party pursuant to the California Uniform
Commercial Code.
The following non-exclusive list of actions shall constitute an event of default
under this CESA MOU:
1. The City has not acquired and conveyed real property interests acceptable
to the Department as provided in this CESA MOD.
2. The City has not protected the HM lands according to the terms of this
CESA MOU.
3. The City has not complied with the terms and conditions of the California
Endangered Species Act Management Authorization (Exhibit 1).
VI. DEPARTMENT COVENANTS. WARRANTIES. AND REPRESENTATIONS
The Department hereby covenants, warrants and represents as follows:
1. The Department, its designee, or successor shall hold title to and protect
all real property interests conveyed under this CESA MOU solely for the purposes of
5 CESA MOUI City of Chula Vista
11-1-94 I Otay Valley Road
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conservation, protecûon, restoration, and enhancement of those species adversely impacted by
the Project. Tlùs covenant shall run with the land and no use of such land shall be pennitted by
the Department or any subsequent titleholder or assignee wlùch is in conflict with the stated
conservation purposes of tlùs CESA MOU. If at any time in the future the Department or any
subsequent transferee uses or threatens to use such lands for purposes not in conformance with
the stated conservation purposes contained herein, the California Attorney General, California
residents, or private entities shall have standing as interested beneficiaries to challenge such
nonconfonning uses oflands transferred herein; and
2. The Department, its designee, or successor shall record on each deed a
statement that the lands described in the deed of record have been conveyed to the Department or
its successor for purposes of conservation, protection, restoration and enhancement of those
species adversely impacted by the Project. Such statement shall be substantially as provided in
Exhibit 3.
VII. MISCELLANEOUS PROVISIONS
A. NOTICES
AIl notices and other communications required or pennitted to be given or
delivered pursuant to tlùs CESA MOU shall be in writing. Such writing shall be delivered
personally, by courier, by telecopy, or sent by first-class or certified mail, return receipt
requested. AIl default notices shall be sent certified mail, return receipt requested. AIl such
noûces or transmittals shall be deemed delivered upon the earlier of actual receipt or three days
after posting by certified mail.
APPLICANT Joe Monaco
City of Chula Vista
276 Fourth Ave.
Chula Vista, CA 91910
DEPARTMENT California Department ofFish and Game
Legal Affairs Division
1416 Ninth Street
Post Office Box 944209
Sacramento, CA 94244-2090
and
REGION Curt Taucher
California Department ofFish and Game
330 Golden Shore, Ste. 50
Long Beach, CA 90802
B. ASSIGNMENT
6 CESA MOUI City of Chu'a Vista
"-'-94 I Otay Valley Road
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No sale or assignment of this CESA MOU or any of the rights or obligations
thereunder shall be made by any party hereto unless there first shall have been obtained the
written consent thereto of the parties; provided, however, that no consent shall be required for
assignment or pledge made by the City (a) to any company which shall succeed by purchase,
merger or consolidation to the properties of the City; (b) to any parent, affiliate or wholly-owned
subsidiary of the City; (c) as security for a debt under the provision of any mortgage, deed of
trust, indenture, bank credit agreement, or similar instrument.
C. ENTIRE AGREEMENT
This CESA MOU, along with the Exhibits attached hereto, constitutes the entire
agreement and understanding between the Department and the City for the Project. This CESA
MOU supersedes all prior and contemporaneous agreements, representation or understandings, if
any, whether oral or written.
D. GOVERNING LAW
This CESA MOU shall be governed by the laws of the State of California. Actual
or threatened breach of this CESA MOU may be prohibited or restrained by a court of competent
jurisdiction.
E. BENEFIT OF CESA MOU
This CESA MOU is solely for the benefit of the People of the State of California
by and through the Department or its designated representative.
F. FURTHER ACTIONS
From time to time hereafter, the City and the Department shall execute such
instruments and other documents and take such other actions, upon the request of the other, as
may be reasonably necessary to carry out the terms of this CESA MOU. This CESA MOU
cannot be amended or modified in any way except by a written instrument duly executed by the
City and the Department. Any proposal for amendment or modification must be duly delivered
for review and approval by the Director and the General Counsel of the Department ofFish and
Game, 1416 9th Street, 12th Floor, Sacramento, California 95814.
G. TERMINATION
This CESA MOU shall terminate within 5 years fÌ'om the date of execution or
upon completion of the terms and conditions contained herein. In the event the CESA MOU
terminates by law or judicial action prior to the performance of acquisition and enhancement
duties herein, title to the security shall be transferred to the Department by operation of law at
the date of the CESA MOU expiration. The Department shall then complete the acquisition and
7 CESA t«JU/ City of Chula Vista
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enhancement duties to the degree security is available.
H. EFFECTIVE DATE
This CESA MOU shall be immediately effective upon execution by both the City
and the Department.
This CESA MOU Includes and Incorporates the Following:
1. EXHIBIT 1, the CALIFORNIA ENDANGERED SPECIES ACT
MANAGEMENT AUTHORIZATION.
a. Attachment A to EXHIBIT 1, the BIOLOGICAL OPINION ON THE
OT A Y V ALLEY ROAD WIDENING PROJECT'S EFFECTS ON THE
LEAST BELL'S VIREO AND COASTAL CALIFORNIA
GNATCATCHER. #1-6-93-F-43.
b. Attachment B to EXHIBIT 1, the STREAMBED ALTERATION
AGREEMENT NO. 5-416-92.
c. Attachment C to EXHIBIT 1, the AMENDMENTS TO THE
STREAMBED ALTERATION AGREEMENT NO. 5-416-92.
d. Attachment D to EXHIBIT 1, the BIOLOGICAL ASSESSMENT FOR
ENDANGERED SPECIES ACT CONSULTATION ON THE OTAY
V ALLEY ROAD WIDENING PROJECT, BY PSBS.
2. EXHIBIT 2, SAMPLE IRREVOCABLE "STANDBY" LETTER OF CREDIT.
a. Attachment A to EXHIBIT 2, the CERTIFICATE FOR DRAWING.
b. Attachment B to EXHIBIT 2, the CERTIFICATE FOR
CANCELLATION.
3. EXHIBIT 3, SAMPLE CONSER V ATION EASEMENT
.
8 CESA MOU/ C1ty of Chula V1sta
lo../~ 11-1-94 / Otay Valley Road
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IN WITNESS WHEREOF, THE PARTIES HERETO have executed this
CESA MOD to be in effect as of the date last signed below.
By: f!L~ By:
Date: //-(6 - 'L.[ Date:
Boyd Gibbons, Director
California Department
ofFish and Game
Sacrwnemo,C&uornia
By:
Shirley Horton, Mayor
Approved as to form:
Date: //-/tJ -?'V
Approved as to form:
Bruce M. Boogaard
City Attorney
IÓ-/~~ CESA MOUI City of Chula Vista
11-1-94 I Otay Valley Road
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Tracking No. 9336
EXHIBIT 1
CALIFORNIA ENDANGERED SPECIES ACT
MANAGEMENT AUTHORIZATION
FOR CONSTRUCTION OF
Otqy Val/ev Road Widenin~ and UP'l"(1dPS (phases 1.2 and 3b)
San Die~o County
Citv ofChula Vista
SUMMARY
The City of Chula Vista (hereinafter "the City") has requested an Authorization for
Management of endangered species pursuant to California Fish and Game Code Section 2081 for
the proposed widening and upgrades ofOtay Valley Road (hereinafter "Project") located in
Chula Vista, San Diego County. The Project will temporarily or permanently modifY 3.09 acres
of potential habitat for one state- and federally-listed endangered species. This species is the
least Bell's vireo. It is also habitat for a federally-listed threatened species, the California
gnatcatcher. It is the detennination of the California Department ofFish and Game (hereinafter
"Department") that acquisition, enhancement, transfer in fee or placement of an easement, and
long-term management of 12.36 acres of habitat for least Bell's vireo at a location acceptable to
the Department will offset the impacts of the project and result in preserving core areas for the
species which may help achieve sustainable populations. An additional 0.3 acres is mitigation
for marsh impacts, creating a total mitigation site of 12.66 acres. It is also the Department's
detennination that the project, as mitigated, will not result in jeopardy to the continued existence
of the listed species and may, through the acquisition of habitat lands, protect the species rrom
further degradation.
ACTMTY DESCRIPTION
The City proposes to widen Otay Valley Road, and work jointly with the County of San Diego's
Otay Valley Road Bridge replacement project. The project site is located on Otay Valley Road,
rrom the 805 Freeway to approximately 9,000 linear feet east of the Freeway, in the City of
Chula Vista, County of San Diego.
The site vegetation cuITently consists of willow riparian woodland, mulefatltamarisk scrub,
rreshwater marsh and coastal sage scrub. The project will result in permanent loss of3.09 acres
of vireo habitat and.3 acres of marsh. In addition, 1.41 acres will be temporarily impacted.
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LISTED SPECIES
Based on biological studies of the project site and adjacent areas, one state- and federally-listed
endangered species may use the project area. This species is the endangered least BeU's vireo
(Vireo bellii pusj1lus). A summary of the vireo's life history infonnation follows.
Least Bell's vireo
The least Bell's vireo, a State and Federally-listed endangered species, is a small, grayish
songbird with one or two faint white wing-bars, whitish below and with gray sides. The vireo is
insectivorous. It is distinguished ftom other vireos in southern California by its distinctive song,
small size, gray color and lack of eye ring. Males and females are virtually indistinguishable and
are approximately 12 cm long. Formerly common and widespread in California and
northwestern Baja California, the species now numbers between 300 and 400 pairs north of the
border. It is restricted to riparian woodland and is most ftequent in areas that combine an
understory of dense young willows (Sa/ix sp.) or mulefat with a canopy of tall willows. The
Vireo's decline is due to loss of riparian habitat combined with parasitism by the brown-headed
cowbird (Molothrus mer), which lays its eggs in Vireo nests, reducing the Vireo's reproductive
success.
The Vireo typically arrives in San Diego County in late March or early April and leaves for its
wintering ground in September. It is known to winter only in southern Baja California. Since
the Vireos build their nests in dense shrubbery 3 to 4 feet above the ground (Salata 1984, SEB
1989), they require young successional riparian habitat or older habitat with a dense understory.
Therefore, riparian plant succession is an important factor to maintaining Vireo habitat. Nests
are also often placed along internal or external edges of riparian thickets (USFWS 1986).
Four pairs of Vireos have been observed using the riparian area within the project area in the
1993 surveys (pSBS 1993).
EFFECl'S ON LISTED SPECIES
The proposed work would result in the direct loss of habitat which hosted three pairs of Vireos
during the 1993 season. The loss of the riparian groves would be expected to eliminate potential
breeding habitat for this species forcing relocation and potentially reducing breeding success
during subsequent nesting seasons. The project would have partial infiingement into willow
groves occupied by a fourth pair during the 1993 season, which would increase noise levels in
the vicinity.
The project will permanently impact 2.87 acres ofmulefatltamarisk scrub, 0.22 acres of willow
riparian woodland, and 0.3 acres fteshwater/alkaline marsh. This results in the permanent loss of
3.09 acres of vireo habitat and 0.3 acres of marsh. The marsh is considered a buffer but not vireo
habitat. In addition, the project will temporarily impact 0.62 acres ofmulefatltamarisk scrub,
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10-19-94 !Otay Valley Road Widaning
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0.04 acres of willow riparian woodland, and 0.75 acres offteshwater/alkaline marsh. This
results in 1.41 acres of temporary impacts.
HABITAT MANAGEMENT LANDS
In association with this project, the City shall acquire, transfer to the Department or place a
conservation easement in favor of the Department on, preserve, restore and enhance 12.66 acres
of habitat management (HM) lands. The City has already acquired 6.48 acres of off-site
management lands. The City shall also mitigate with 1.41 acres on-site for the temporary
impacts of 1.41 acres. The City shall provide for initial habitat protection of the HM lands,
including but not limited to fencing, trash removal, or other measures as required by the
Department.
Upon execution of the Memorandum of Understanding (MOU), the City shall provide the
Department with a letter of credit in the amount of $310,000, with $129,000 of that amount to
secure transfer in fee or purchase of an easement on 6.18 acres, and with $181,000 to secure
habitat enhancement, revegetation, maintenance and monitoring. The acquisition, improvement,
and maintenance of the mitigation land will allow for its management for threatened,
endangered, and/or candidate species in perpetuity. The acquired parcel in combination with
past and future acquisitions will provide sufficiently large core areas for the management of the
affected species.
SPECIFIC CONDmONS REQUIRED BY THE MANAGEMENT PERMIT
The Department hereby adopts the Federal Biological Opinion for the Otay Valley Road
Widening and Upgrades (phases 1,2 and 3b) and Otay Valley Road Bridge (phase 3a) as our
findings (see attachment A to Exhibit 1). The Department adopts the required mitigation
measures contained therein under reasonable and prudent measures and terms and conditions as
required for the issuance of the Department Code Section 2081 Endangered Species
Management Permit for the project. All terms and conditions shall become part of the 2081
Permit and shall be enforceable by the Department. In addition to the specified mitigation
measures, the Department also requires the following to satisfy Section 2081 :
1. Within 12 months of issuance of this 2081 MA, the City (or its agent) shall acquire and
transfer to the Department or an approved designated agent 12.66 acres of habitat, in fee title or
with a conservation easement, for the affected species in a location acceptable to the Department
and USFWS. Immediately upon execution of the MOU, the City shall transfer to the Department
a standby letter of credit in the amount of$310,000 to secure land or easement purchase, habitat
enhancement, revegetation, maintenance, and monitoring of the lands.
2. No construction activity (except for fine grading with a D4 grader, backhoe, and/or
skiploader; utilities placement; roadway surfacing; placement of drain boxes; curbs and gutters;
fencing; guardrails; striping; lighting; landscaping; and irrigation) shall occur within 750 feet of
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10-19-94 IOtay Valley Road Widening
10 -- If
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an occupied least Bell's vireo nest. Those excepted activities listed above, or other activities
approved in writimz by the Department, may occur within proximity to occupied habitats
provided they are limited to daylight working hours after 11 :00 AM.
3. Monitoring by a qualified biologist approved by the Department shall be done during the
construction period to ensure compliance with the above conditions. Regular monitoring of
vireos shall be conducted as a part of the work. Should behavioral patterns of identified vireo
pairs (monitored a minimum of three times per week) exhibit stress or reactions to the project's
work, work believed to be causing behavioral changes shall cease immediately and further
ûming restrictions and/or work restrictions shall be coordinated with the Department prior to
resuming work.
4. Specific work areas and all ßÛtigation measures are described onfm the plans subßÛtted by
the Operator, including "Biological Assessment for Endangered Species Act Consultation on the
Otay Valley Road Widening Project Chula Vista, California", prepared by Pacific Southwest
Biological Services, Inc., dated September 27, 1993, and shall be implemented as proposed
unless directed differently by the Department.
5. All conditions within Streambed Alteration Agreement 5-416-92, signed March 3,1993, and
the amendment to 5-416-92, dated December 20, 1993, shall become part of the 2081 Pennit.
6. The ßÛtigation site of 12.66 acres (both restoration and enhancement areas) shall be protected
for fish and wildlife use in perpetuity. A wildlife conservation easement shall be recorded on the
property, as described in 5-416-92. Any actions contrary to the purpose of the site shall be
subject to Department approval.
7. No weed abatement, road maintenance or other activities shall take place within the stream
and/or within native habitat, unless such an activity is first approved by the Department.
8. The City shall designate a specific individual as a contact representative between the City,
USFWS, and the Department to oversee compliance with protection measures detailed in this
MA, Attachment A, the Streambed Alteration Agreement No. 5-416-92 (Attachment C to
Exhibit 1), and the Amendment to the Streambed Alteration Agreement No. 5-416-92
(Attachment D to Exhibit· 1). The City shall provide written notification of the contact
representative to the Department and USFWS within 30 days ofMA issuance. Written
notification shall also be provided by the City to the Department and USFWS in the event that
the designee is changed.
9. The Department requires notification equivalent to that provided to the USFWS, including
timely notice of noncompliance, take, and other periodic reports. The Department contact
person shall be Mr. Curt Taucher, Environmental Services Supervisor, Department o~Fish and
Game, 330 Golden Shore, Suite SO, Long Beach, California 90802.
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10-19-94 /Otay Valley Road Widening
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10. If the project is changed significantly in a way not discussed in the Federal Biological
Opinion, or ifnew information concerning least Bell's vireo or probable impacts trom the project
on the species becomes available, a new or amended Section 2081 Management Permit will be
required.
DISCLAIMER
II. Upon timely satisfaction of the conditions of this California Endangered Species
Management Authorization, the City will have satisfied the State's endangered species
requirements, and understands and recognizes that this agreement does not constitute or imply
compliance or entitlement to proceed with the project, with regard to laws and regulations
beyond the authority and jurisdiction of the Department. The City has independent
responsibility for compliance with any and all applicable laws and regulations.
12. Following execution of the CESA MOU and issuance by the Department of this California
Endangered Species Management Authorization, the City's decision whether or not to proceed
with said project shall be voluntary, and subject to all other pertinent law and regulations. As
such, the City will hold the State of California and the Department ofFish and Game harmless,
in any violation of the law, lien, suit, or claim of injury or damage which may result trom any
aspect of the project, including fulfillment of the obligations under this MA and the CESA
MOD.
DEPARTMENT FINDINGS
If the above-written conditions of this MA and the MOU are implemented in a timely manner, as
provided herein, the Department finds that the construction of the project will not result in
jeopardy to the continued existence of the listed and candidate species and may through the
acquisition, revegetation, management and protection of habitat lands, protect the species trom
further degradation.
CALIFORNIA DEPARTMENT
OF FISH AND GAME
BY:
TITLE:
DATED:
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LITERATURE CITED
PSBS. 1993. Biological Assessment for Endangered Species Act Consultation on the Otay
Valley Road Widening Project Chula Vista, California; Pacific Southwest Biological
Services, Inc. Unpublished report for U.S. Army Corps of Engineers and City ofChula
Vista
Salata, L.R 1984. Status of the Least Bell's vireo on Camp Pendleton, California: report on
research done in 1984. Unpublished report, u.s. Fish and Wildlife Service, Carlsbad,
California
SEB. 1989. Status of the least Bell's vireo on Marine Corps Base, Camp Pendleton, San Diego
County, California in 1988; Contract No. M00681-87-M-6153-7. Sweetwater
Environmental Biologists. Unpublished report for U.S. Marine Corps.
USFWS. 1986. Endangered and threatened wildlife and plants; Least Bell's vireo; detennination
of endangered status, and reopening of comment period in the proposed critical habitat
designation. U.S. Fish and Wildlife Service. Federal Register 51(85) 16474-16483.
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