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10-1025_CALIF DEPT OF TRANSPORTATION_Cooperative Agr12—ORA-5 PM 8.58-9.35 San Juan Creek Bridge Mitigation — San Juan Creek Watershed EA No. 12-OE5701 District Agreement No. 12-0634 COOPERATIVE AGREEMENT THIS AGREEMENT, ENTERED INTO EFFECTIVE ON _ � 6&6� 2S , 2010, is between the STATE OF CALIFORNIA, acting by and through its Department of Transportation. hereinafter referred to as "STATE", and the CITY OF SAN JUAN CAPISTRANO, a body politic and a municipal corporation of the State of California, referred to herein as "CITY." RECITALS STATE and CITY, hereinafter referred to as "PARTIES", pursuant to Streets and Highways Code sections 114 and/or 130, are authorized to enter into this Agreement. 2. STATE is implementing a bridge widening project on the San Juan Creek within the City of San Juan Capistrano, hereinafter referred to as "PROJECT 3. Pursuant to consultation with Regional Water Quality Control Board, San Diego Region, (RWQCB) for PROJECT, STATE received a Clean Water Act 401 Water Quality Certification, File No. 09C-034 dated December 7,2009 and including any subsequent amendments, collectively, "401 Certification' and incorporated herein by this reference. 4. Pursuant to consultation with the California Department of Fish and Game (DFG) for PROJECT, STATE received a 1602 Agreement Regarding Proposed Stream or Lake Alteration, Notification No. 1600-2009-0227-115 dated December 8, 2009 and any subsequent amendments, collectively "1602 SAA" and incorporated herein by this reference. 5. STATE now desires to satisfy D. Compensatory Mitigation for Loss of Waters of the U.S./State condition la. of the 401 Certification and Compensatory Mitigation condition 5 of the 1602 SAA, collectively referred to herein as "PERMIT REQUIREMENTS." 6. CITY desires to assist STATE by satisfying PERMIT REQUIREMENTS. PARTIES has determined that the estimated cost of satisfying PERMIT REQUIREMENTS is $150,000 and will be paid for from the phase 4 allocation of the PROJECT as described in Exhibit A, attached hereto and made a part of this Agreement. 8. PARTIES now define herein below the terms and conditions under which this Agreement will be implemented. SECTION I CITY AGREES: 1. To submit an invoice to STATE. within thirty (30) calendar days of execution of this Agreement, in the amount of $150,000, which amount represents the total cost for all work to be performed pursuant to the terms of this Agreement. STATE may, at its sole discretion and pursuant to an amendment to this Agreement, authorize a greater amount. 2. To promptly notify STATE in writing if CITY anticipates that the cost to perform the work described in this Agreement will exceed the amount of $1.50,000. Further. if said costs to perform work will exceed $150,000, CITY shall have no obligation to perform work and incur costs above $150,000 until STATE authorizes a greater amount of funds pursuant to a written amendment to this Agreement. 2 3. To use all of STATE's funds, including any interest accrued thereon, to perform any and all necessary work to satisfy PERMIT REQUIREMENTS, including performing the work described in Exhibit B, Scope of Work, attached hereto and made a part of this Agreement. 4. All work performed by CITY or performed on CITY's behalf, to satisfy PERMIT REQUIREMENTS, shall be performed in accordance with all applicable state and federal laws, regulations, policies, procedures, and standards. 5. To obtain any and all environmental approvals and/or resource agency agreements. approvals, and/or permits required prior to implementation of any work described herein this Agreement and to fully comply with any terms and conditions thereof. 6. To obtain any and all necessary property rights and/or rights of entry required prior to the implementing any work described herein this Agreement and to fully comply with any terms and conditions thereof. Said rights of entry shall also include rights for STATE personnel to enter property. 7. To submit a draft Mitigation Monitoring Plan (MMP) to STATE within sixty (60) calendar days of execution of this Agreement for STATE's review and comment. The draft MMP shall address the requirements set forth in Exhibit B. 8. To address STATE's comments on the draft MMP and thereafter submit a final draft MMP to STATE within fourteen (14) calendar days of receipt of STATE's comments on the draft MMP for STATE's review and approval, if appropriate. CITY shall provide STATE a copy of the final approved MMP. 9. To submit one (1) draft planting report to STATE thirty (30) calendar days after planting the 1.264 acres of riparian habitat, for STATE's review and comment. Said report shall contain all of the information described in Exhibit B. 10. To address STATE's comments on the draft planting report and thereafter submit a final draft planting report to STATE within fourteen (14) work days of receipt of STATE's comments for STATE's review and approval, if appropriate. H. To submit draft monitoring reports to STATE for three (3) years (with monitoring anticipated to begin in the year 2011 and end three years later, currently anticipated to be year 2014) by October lst of each year. Said reports shall contain all of the information described in Exhibit B. 12. To address STATE's comments on the draft monitoring report and thereafter submit a final draft monitoring report to STATE by October 1st for three (3) years (with monitoring anticipated to begin in the year 2011 and end three (3) years later, currently anticipated to be year 2014) for STATE's review and approval, if appropriate. 13. If at any time during the three (3) year monitoring period (with monitoring anticipated to begin in the year 2011 and end three (3) years later currently anticipated to be year 2014) 3 it is determined by STATE that progress towards the success criteria, as described in Exhibit B and hereinafter referred to as "SUCCESS CRITERIA." is not being achieved then CITY shall implement any necessary remedial or adaptive management measures such as replanting and/or weed control, subject to Section 1, Article 2 above. 14. To conform to the provisions of Labor code sections 1720 through 1815, all applicable regulations and coverage determinations issued by the Director of Industrial Relations. CITY agrees to include prevailing wage requirements in its contracts for public work. Work performed by CITY's own forces is exempt from the Labor Code's prevailing wage requirements. 15. To require its contractors to include prevailing wage requirements in all subcontracts funded by this Agreement when the work to be performed by the subcontractor is a "public work" as defined in Labor Code section 1720(a)(1). Subcontracts shall include all prevailing wage requirements set forth in CITY's contracts. 16. Within ninety (90) calendar days of submission of the third annual monitoring report or SUCCESS CRITERIA is achieved, whatever comes last, to furnish STATE with a detailed statement of the total actual costs incurred by CITY. To thereafter refund to STATE, promptly after completion of CITY's final accounting of the costs incurred, any amount of STATE's deposits, required in Section II, Article 1, remaining after said costs to be borne by CITY have been deducted, or to bill STATE for any additional amount required to complete STATE's financial obligations set forth in this Agreement. 17. To retain all books, documents, papers, accounting records, and other evidence pertaining to cost incurred, including support data for cost proposals, and to make such materials available at the respective offices of STATE at all reasonable times. STATE, Federal Highway Administration (FHWA), or any duly authorized representative of the Federal Government shall have access to any books. records, and documents of CITY that are pertinent to this Agreement for audits, examinations, excerpts, and transactions, and copies thereof shall be furnished when requested. SECTION II STATE AGREES: 1. To deposit with CITY within sixty (60) calendar days of receipt of CITY's billing thereof the amount of $150,000, which amount represents the total cost for work to be performed pursuant to the terms of this Agreement. STATE may, at its sole discretion and pursuant to an amendment to this Agreement, authorize a greater amount. Further, it is understood that if CITY informs STATE that additional funds are required, as set forth in Article 2, Section I, CITY will have no obligation to perform work and incur costs above $150,000, unless STATE, at its sole discretion and pursuant to an amendment to this Agreement, authorizes a greater amount. n 2. To review and provide comments to CITY within seven (7) work days from receipt of the draft MMP. 3. Within seven (7) work days of receipt, to review and approve, if appropriate. the draft final MMP submitted by CITY to STATE. 4. To review and provide comments to CITY within seven (7) work days from receipt of the draft planting report. 5. Within seven (7) work days of receipt, to review and approve. if appropriate, the draft final planting report submitted by CITY to STATE. 6. To review and provide comments to CITY by November I' on the draft monitoring reports prepared by CITY, and submitted to STATE for three (3) years (with monitoring anticipated to begin in the year 2011 and end three (3) years later, currently anticipated to be year 2014). 7. Within seven (7) work days of receipt, to review and approve. if appropriate, the draft final monitoring report submitted by CITY to STATE for three (3) years (with monitoring anticipated to begin in the year 2011 and end three (3) years later, currently anticipated to be year 2014). SECTION III IT IS MUTUALLY AGREED: 1. All obligations of STATE under the terms of this Agreement are subject to the appropriation of resources by the Legislature, State Budget Act authority and the allocation of funds by the California Transportation Commission (CTC). 2. All applicable laws, rules and policies relating to the use of Federal or State funds shall apply. notwithstanding other provisions of this Agreement. 3. Nothing within the provisions of this Agreement is intended to create rights in third parties not party to this Agreement or to affect the legal liability of either party to the Agreement by imposing any standard of care different than the standard of care imposed by law. 4. Neither STATE nor any officer or employee thereof is responsible for any injury, damage, or liability occurring by reason of anything done or omitted to be done by CITY under or in connection with any work, authority, or jurisdiction conferred upon CITY under this Agreement. It is understood and agreed that, CITY will fully defend, indemnify, and save harmless STATE and all of its officers and employees from all claims. suits. or actions of every name, kind and description brought forth under, E including, but not limited to, tortious. contractual. inverse condemnation, or other theories or assertions of liability occurring by reason of anything done or omitted to be done by CITY under this Agreement. 5. Neither CITY nor any officer or employee thereof is responsible for any injury, damage, or liability occurring by reason of anything done or omitted to be done by STATE under or in connection with any work, authority, or jurisdiction conferred upon STATE under this Agreement. It is understood and agreed that, STATE will fully defend, indemnify. and save harmless CITY and all of its officers and employees from all claims, suits. or actions of every name. kind and description brought forth under, including. but not limited to, tortious, contractual, inverse condemnation, or other theories or assertions of liability occurring by reason of anything done or omitted to be done by STATE under this Agreement. 6. In the event of any breach of this Agreement by either party, the other party may enforce this Agreement by any means available at law or in equity. In the event of litigation, mediation or arbitration to resolve any breach of, or dispute related to this Agreement, each party agrees to pay for their own attorneys' cost and expenses, without regard to who prevails 7. A failure by either party to enforce any provision of this Agreement shall not be construed as a continuing waiver, or as a waiver of the right to compel enforcement of that provision. 8. This Agreement may be executed in several counterparts and all counterparts so executed shall constitute one agreement that shall be binding on all of the PARTIES not withstanding that all of the PARTIES are not a signatory to the original or the same counterpart. If any provision of this Agreement is held invalid, the other provisions shall not be affected thereby. 9. No alteration or variation of the terms of this Agreement shall be valid unless made by a formal amendment executed by PARTIES hereto and no oral understanding or agreement not incorporated herein shall be binding on any of the PARTIES hereto. 10. The time of performance and/or duties or obligations of PARTIES hereunder shall be extended for the period during which performance was delayed or impeded by reason of riots, insurrections, war, fire, casualty, earthquake, acts of God, or other reasons of a like nature not the fault of the party performing such duty or obligation. Further, unless it is the fault of the party performing such duty or obligation, then neither party shall be required to restore any destroyed work unless additional funding is approved for such restoration work unless the party performing such duty or obligation was at fault. 6 STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION CINDY McKIM Director r By: 7, d4 , �� F�anktin Acting Deputy District Director Capital Projects Outlay Program APPROVED AS TO FORM AND PROCEDURE: By: Deputy Attorney Department of Transpo tion CERTIFIEf) AS TO FUNDS: Bys.�f . ( Z , Neda Saber ' District Budget Manager CERTIFIED AS TO FINANCIAL TERM CONDITIONS: TM� �WB (� g mmistrator h CITY OF SAN JUAN CAPISTRANO By: tv ITY Manager APPROVED AS TO FORM: By: 1 / f � rl; mar SMM66val, CITY Attorn y Date: 16 I EXHIBIT A Estimated Costs for labor, materials, planting, maintenance, monitoring, and reporting. Details Pending finalization of Final Draft Restoration Plan for Trabuco Creek/Caltrans Restoration Project Tasks/Materials Total Cost Materials -Plants, compost, mulch, irrigation supplies $55.000. Initial Efforts (2010) Tasks 1.0 (Mitigation and Monitorin Plan) and 2.0 (Permitting) $15,000 Labor Year I (20 I 0) Tasks 3.0 (Planting, including Planting Report), 4.0 (Maintenance), and 5.0 (Monitoringand Re ortin ) $50.000 Labor Year 2 (2011) Tasks 4.0 and 5.0 $20,000 Labor Year 3 (20 12) Tasks 4.0 and 5.0 $10.000 Total $150,000 EXHIBIT B Scope of Work for establishment of 1.264 acres of riparian habitat within the San Juan Creek Watershed in Orange County The following Scope of Work addresses the responsibilities and requirements of CITY in providing for the planting, maintenance, and monitoring of 1.264 acres of riparian habitat mitigation plantings within the San Juan Creek watershed, in Orange County, CA. This Scope of Work assumes a contract total of $150,000.00 which includes labor and material cost of plants, planting, maintenance, and monitoring for three (3) years. It is understood that all tasks will be performed in an' appropriately timed and efficient manner. All CITY deliverables, including annual monitoring reports, shall be addressed to the following: Chris Flynn, Chief Branch C Environmental Analysis, California Department of Transportation 3347 Michelson Drive, Suite 100 Irvine, CA 92612 Task 1.0 Mitigation and Monitoring Plan CITY shall prepare and submit to STATE a Mitigation and Monitoring Plan (MMP) within thirty (30) calendar days of the execution of the Agreement. This MMP will include, but is not limited to: identify the property where the work will be performed, type of species to be planted, a map delineating areas to be planted, stream bank stabilization measures to be employed as applicable, and erosion control measures to be employed as applicable. Task 2.0 Permitting CITY shall be responsible for environmental compliance and shall obtain any and all necessary permits, agreements, and/or approvals for the planting of the 1.264 acres of riparian habitat. Task 3.0 Planting Following approval of the MMP, environmental compliance, issuance of any necessary permits, agreements, and/or approvals as well as removal of invasive/exotic species, CITY shall be responsible for planting 1.264 acres of riparian habitat within the San Juan Creek watershed in Orange County, CA. Said planting of the 1.264 acres of riparian habitat shall be completed in accordance with the approved MMP as specified in Task 1.0. Task 4.0 Maintenance CITY shall perform all Maintenance tasks. Maintenance activities are scheduled to take place immediately after planting and continue for three (3) years. Maintenance is an important task in the restoration of native plant communities and includes, but is not limited to, activities such as invasive eradication, supplemental irrigation. and planting of additional plant material. Site maintenance will be conducted for three (3) years and will begin immediately after re -vegetation is completed. G''. The maintenance schedule will be flexible enough to maintain the planting areas free of invasive species and to ensure the required survival rate and growth of plants and seed material. During the maintenance period, non-native invasive plants will be removed as they are identified. Invasive control measures will include the following: (1) hand removal, (2) cutting or mowing, (3) and chemical herbicides where approved. Hand removal will be the primary method of invasive control since it is very effective in eliminating only the desired plants. Chemical control will be used for the highly invasive species. Any herbicide treatment will be specified by a licensed Pest Control Advisor and applied by a licensed Pest Control Applicator in consultation with CITY. The use of mechanical, chemical, and hand removal methods will be used as needed and appropriate. Riparian vegetation will be watered as needed during the establishment period to ensure long-term survival. CITY shall be responsible for obtaining any and all rights that are necessary to perform the work described herein. Water shall be taken in compliance with all state and federal laws, including any permits that may regulate such actions. Replacement plants will be installed as needed to meet the performance criteria as defined below. Task 5.0 Monitoring and Reporting Success Criteria CITY shall ensure that 1.264 acres of riparian habitat is established. The success criteria for planting are based on the goal of obtaining self-sustaining native and regionally appropriate vegetation cover. The criteria established to evaluate the success of the planting plan goals are as follows: I Greater than 75 percent relative coverage of native plants within three (3) years (proportional contribution of species cover to total vegetation cover). 2. At least three (3) native plant species established within the first three (3) years and/or natural recruitment of native species, each with at least 10% coverage. 3. At least 50 percent viability of the foliage and stems above ground. 4. Decrease non-native invasive weeds to less than 10% cover within the first three (3) years. Progress towards meeting the success criteria will be monitored annually at the end of the growing season (approximately September). Annual qualitative monitoring will be performed in conjunction with a long-term maintenance program. The entire site will be visually inspected and qualitative or subjective determinations will be made. Estimates regarding presence or absence, population sizes, population distribution, and population condition will be made for each species planted. In addition, permanent photographic station locations will be established to document the progress of the mitigation plantings over the course of the monitoring period. The locations will be chosen to provide unobstructed views of the mitigation plantings and will be sufficient in number to adequately document the status of the site. Photographs will be taken at these locations on an annual 10 basis. Monitoring will take place for three (3) years after planting and will measure the progress toward and achievement of the final success criteria. Failure to meet success criteria will require re-evaluation of the site conditions followed by remedial or adaptive management measures such as replanting and/or weed control. Replanting may occur during the spring or fall (rainy season). If any particular species demonstrate failure -to -thrive trends (less then 50 percent viable foliage or stems), substitution with other native species will be considered appropriate. Reporting One (1) planting report will be submitted to STATE within thirty (30) calendar days after the planting of 1.264 acres of riparian habitat. This report will include, but is not limited to: a description of existing site conditions; a description of site preparation; a description of the planting materials used (i.e. cuttings, seedlings, seed, plugs, container size and source if not obtained from a commercial nursery); use of mulch and/or fertilizers; description of plan preparation, if necessary (Le. how cuttings were obtained, size, treatment with rooting hormone); necessity for irrigation and/or fencing; and a summary of any planting problems and how said problems were resolved). Monitoring results will be submitted to STATE annually. The report will include, at a minimum, name and title of personnel conducting monitoring, maintenance. and reporting; observation dates for monitoring activities; photo documentation; vegetation summaries; any corrective actions that were taken, and a summary and evaluation of data for the current year compared to previous years (in the second through sixth years of monitoring). The reports will specify the progress toward or achievement of the success criteria. The first annual draft monitoring report will be due on October 1st the year following the completion of plantings with subsequent draft reports due each October 1st for the next consecutive two (2) years. If adaptive management measures become necessary and changes are made to the planted species/planting densities, these changes will be noted in the annual monitoring report. If the final annual monitoring report (due October 1" in the final year of monitoring currently anticipated to be the year 2014) indicates that 1.264 acres of riparian habitat will not be established, in whole or in part, the cause of the failure will be identified and rectified through whatever means are considered adequate to establish 1.264 acres of riparian habitat, including consultation with STATE. 11 Christy Jakl From: Christy Jakl Sent: Tuesday, January 31, 2012 9:03 AM To: Bill Ramsey; Ayako Rauterkus Cc: Grant Taylor Subject: Pending Agreements Good Morning, Please see the following comments on pending agreements in our office. Bill — 2010 Cooperative Agreement with Cali Dept of Trans for Trabuco Creek Habitat Restoration — Our office never received a fully executed copy. Avako (Teri) — 2010 Mills Act Contract for Harrison House & Miguel Para Adobe — What is the status? Has there been a transfer of ownership? Ayako (Teri) — 2009 PSA with PCR Services Corporation for Montanez Adobe Native American Monitoring — Need Insurance documents. If you have any of the documents, please forward to our office. Let me know if you have any questions. Kindest Regards, Christi Jak1 Deputy City Clerk City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 (949) 443-6310 1 (949)493-1053 fax 32400 PASEO ADELANTO SAN JUAN CAPISTRANO, CA 92675 (949) 4931171 (949) 4931053 FAx www.sanjuancapistrano.org TRANSMITTAL TO: Cindy Ngo Cooperative Agreements Branch District 12, Division of Design 3347 Michelson Drive, Suite 100 Irvine, CA 92612-8894 DATE: September 29, 2010 FROM: Christy Jakl, Deputy City Clerk (949) 443-6310 RE: Cooperative Agreement for Habitat Restoration Enclosed: (5) Original Cooperative Agreements for Habitat Restoration MEMBERS OF THE CITY COUNCIL SAMALLEVATO [AURAFREESE THOMAS W. HRIBAR MARK NIELSEN DR. LONDRES USO After full execution, please forward (1) executed copy of the agreement to my attention for our records. If you have questions concerning the agreement, please contact Bill Ramsey, Principal Planner at (949) 443-6334. Cc: Bill Ramsey, Principal Planner San Juan Capistrano: Preserving the Past to Enhance the Future 0 Printed on 10D% recycled paper MEMORANDUM TO: Joe Tait, City Manageri�.- FROM: Grant Taylor, Development Services Director 000-5v 912112010 D12 SUBJECT: Reconsideration of a Proposed Cooperative Agreement with the California Department of Transportation (CalTrans) Regarding Participation in the Trabuco Creek Habitat Restoration Plan. RECOMMENDATION By motion, authorize the City Manager to execute the cooperative agreement with the California Department of Transportation (CalTrans) for participation in the Trabuco Creek Habitat Restoration Plan (see Attachment 1, September 21 Draft Cooperative Agreement). SITUATION . Caltrans has requested that the City enter into a cooperative agreement regarding habitat mitigation on City -owned property along Trabuco Creek. Caltrans has offered the City a contribution of $150,000 to fund the restoration of 1.264 acres of riparian habitat along Trabuco Creek.. The City would also be responsible for monitoring the mitigation area for a period of three years to assure the establishment of native plants within the creek corridor. Caltrans has been required by the Resource Agencies to mitigate the impacts of planned freeway and ramp improvements to the 1-5 southbound (SB) hook ramps at Camino Capistrano which also require the widening of the southbound 1-5 bridge deck over San Juan Creek and San Juan Creek Road. Consequently, the proposed mitigation would allow Caltrans to proceed in a timely manner with completing those road improvements. At the April 20, 2010 meeting, the City Council authorized staff to negotiate the specific terms of a cooperative agreement with Caltrans. At that time, the substantive revisions requested by City staff consisted of the following: • Inclusion of a provision that would cap the City's maximum financial responsibility under the agreement to the $150,000 amount to be contributed by Caltrans. • Inclusion of a provision that the City would not be responsible for habitat restoration improvements resulting from damage during the monitoring period resulting from "Acts of God." Agenda Report Page 2 September 21, 2010 At the July 21, 2010 meeting, City Council approved the cooperative agreement including the necessary provisions cited above (see Attachment 2, City Council -Approved Cooperative Agreement of July 20, 2010). Caltrans subsequently submitted additional revisions to the agreement which the City Attorney and staff have reviewed and determined are acceptable. The Caltrans revisions to the agreement include additional provisions that require the City to invoice for the $150,000 payment, expend funds only on the subject habitat restoration, comply with applicable prevailing wage standards, prepare a habitat planting plan, and provide periodic monitoring reports to Caltrans. The agreement continues to protect the City the unforeseen cost of repairing damage to habitat incurred by "natural disasters" and caps the City's maximum financial responsibility at $150,000 (see Attachment 3, Redline -strikeout Comparison of July 20 and September 21 Cooperative Agreements). Staff recommends that the City Council authorize the City Manager to execute the cooperative agreement with the California Department of Transportation (CalTrans) for participation in the Trabuco Creek Habitat Restoration Plan. FINANCIAL CONSIDERATIONS The cost of habitat restoration would be fully funded by the $150,000 Caltrans contribution. Staff -recommended provisions to the agreement would cap the City's responsibility at that amount. The City Council has previously offered a 25% match, not to exceed a maximum of $500,000, from Measure Y Open Space Bond proceeds for Measure M2 habitat restoration funds from the Orange County Transportation Authority (OCTA). The City has also committed to provide a 50% ($100,000) match in staff time and in-kind services to secure the recently awarded $200,000 State Habitat Conservation Fund Program grant. PUBLIC NOTIFICATION Public notification is provided through posting of the meeting agenda. RECOMMENDATION By motion, authorize the City Manager to execute the cooperative agreement with the California Department of Transportation (CalTrans) for participation in the Trabuco Creek Habitat Restoration Plan. Respectfully submitted, Prepared by: n Grant Ta or Iliam A. Ramsey, AICP Development Services Director Principal Planner Agenda Report page 3 September 21, 2010 Attachment: 1. September 21 Draft Cooperative Agreement 2. City Council -Approved Cooperative Agreement of July 20, 2010. 3. Redline -strikeout Comparison of July 20 and September 21 Cooperative Agreements. 12—ORA-5 PM 8.58-9.35 San Juan Creek Bridge Mitigation — San Juan Creek Watershed EA No. 12-OE5700 District Agreement No. 12-0622 COOPERATIVE AGREEMENT THIS AGREEMENT, ENTERED INTO EFFECTIVE ON , 2010, is between the STATE OF CALIFORNIA, acting by and through its Department of Transportation, hereinafter referred to as "STATE", and the CITY OF SAN JUAN CAPISTRANO, a body politic and a municipal corporation of the State of California, referred to herein as "CITY." ATTACHMENT 9 RECITALS STATE and CITY, hereinafter referred to as "PARTIES", pursuant to Streets and Highways Code sections 114 and/or 130, are authorized to enter into this Agreement. 2. STATE is implementing a bridge widening project on the San Juan Creek within the City of San Juan Capistrano, hereinafter referred to as "PROJECT." 3. Pursuant to consultation with Regional Water Quality Control Board, San Diego Region, (RWQCB) for PROJECT, STATE received a Clean Water Act 401 Water Quality Certification, File No. 09C-034 dated December 7, 2009 and amended on , 2010, collectively, "401 Certification" and incorporated herein by this reference. 4. Pursuant to consultation with the California Department of Fish and Game (DFG) for PROJECT, STATE received a 1602 Agreement Regarding Proposed Stream or Lake Alteration, Notification No. 1600-2009-0227-R5 dated December 8, 2009 and amended on , 2010, collectively "1602 SAA" and incorporated herein by this reference. STATE now desires to satisfy D. Compensatory Mitigation for Loss of Waters of the U.S./State condition la. of the 401 Certification and Compensatory Mitigation condition 5 of the 1602 SAA, collectively referred to herein as "PERMIT REQUIREMENTS." 6. CITY desires to assist STATE by satisfying PERMIT REQUIREMENTS. 7. PARTIES have determined that the estimated cost of satisfying PERMIT REQUIREMENTS is $150,000 and will be paid for from the phase 4 allocation of the PROJECT as described in Exhibit A, attached hereto and made a part of this Agreement. 8. PARTIES now define herein below the terms and conditions under which this Agreement will be implemented. SECTION I CITY AGREES: To submit an invoice to STATE, within thirty (30) calendar days of execution of this Agreement, in the amount of $150,000, which amount represents the total cost for all work to be performed pursuant to the terms of this Agreement. STATE may, at its sole discretion and pursuant to an amendment to this Agreement, authorize a greater amount. 2. To promptly notify STATE in writing if CITY anticipates that the cost to perform the work described in this Agreement will exceed the amount of $150,000. Further, if said costs to perform work will exceed $150,000, CITY shall have no obligation to perform work and incur costs above $150,000 until STATE authorizes a greater amount of funds pursuant to a written amendment to this Agreement. 3. To use all of STATE's funds, including any interest accrued thereon, to perform any and all necessary work to satisfy PERMIT REQUIREMENTS, including performing the work described in Exhibit B, Scope of Work, attached hereto and made a part of this Agreement. 4. All work performed by CITY or performed on CITY's behalf, to satisfy PERMIT REQUIREMENTS, shall be performed in accordance with all applicable state and federal laws, regulations, policies, procedures, and standards. 5. To obtain any and all environmental approvals and/or resource agency agreements, approvals, and/or permits required prior to implementation of any work described herein this Agreement and to fully comply with any terms and conditions thereof. 6. To obtain any and all necessary property rights and/or rights of entry required prior to the implementing any work described herein this Agreement and to fully comply with any terms and conditions thereof. Said rights of entry shall also include rights for STATE personnel to enter property. To submit a draft Mitigation Monitoring Plan (MMP) to STATE within sixty (60) calendar days of execution of this Agreement for STATE's review and comment. The draft MMP shall address the requirements set forth in Exhibit B. 6. To address STATE's comments on the draft MMP and thereafter submit a final draft MMP to STATE within fourteen (14) calendar days of receipt of STATE's comments on the draft MMP for STATE's review and approval, if appropriate. CITY shall provide STATE a copy of the final approved MMP. 7. To submit one (1) draft planting report to STATE thirty (30) calendar days after planting the 1.264 acres of riparian habitat, for STATE's review and comment. Said report shall contain all of the information described in Exhibit B. 8. To address STATE's comments on the draft planting report and thereafter submit a final draft planting report to STATE within fourteen (14) work days of receipt of STATE's comments for STATE's review and approval, if appropriate. 9. To submit annual draft monitoring reports to STATE for three (3) years (with monitoring anticipated to begin in the year 2011 and ending three years later, currently anticipated to be year 2014) by October 1 st of each year. Said reports shall contain all of the information described in Exhibit B. 10. To address STATE's comments on the draft monitoring report and thereafter submit a final draft monitoring report to STATE by October 1st for three (3) years (with monitoring anticipated to begin in the year 2011 and end three (3) years later, currently anticipated to be year 2014) for STATE's review and approval, if appropriate. 11. If at any time during the three (3) year monitoring period (with monitoring anticipated to begin in the year 2011 and end three (3) years later currently anticipated to be year 2014) it is determined by STATE that progress towards the success criteria, as described in Exhibit B and hereinafter referred to as "SUCCESS CRITERIA," is not being achieved then CITY shall implement any necessary remedial or adaptive management measures such as replanting and/or weed control, subject to Section I, Article 2 above. 12. To conform to the provisions of Labor code sections 1720 through 1815, all applicable regulations and coverage determinations issued by the Director of Industrial Relations. CITY agrees to include prevailing wage requirements in its contracts for public work. Work performed by CITY's own forces is exempt from the Labor Code's prevailing wage requirements. 3 13. To require its contractors to include prevailing wage requirements in all subcontracts funded by this Agreement when the work to be performed by the subcontractor is a "public work" as defined in Labor Code section 1720(a)(1). Subcontracts shall include all prevailing wage requirements set forth in CITY's contracts. 14. Within ninety (90) calendar days of submission of the third annual monitoring report or SUCCESS CRITERIA is achieved, whatever comes last, to furnish STATE with a detailed statement of the total actual costs incurred by CITY. To thereafter refund to STATE, promptly after completion of CITY's final accounting of the costs incurred, any amount of STATE's deposits, required in Section II, Article 1, remaining after said costs to be borne by CITY have been deducted, or to bill STATE for any additional amount required to complete STATE's financial obligations set forth in this Agreement. 15. To retain all books, documents, papers, accounting records, and other evidence pertaining to cost incurred, including support data for cost proposals, and to make such materials available at the respective offices of STATE at all reasonable times. STATE, Federal Highway Administration (FHWA), or any duly authorized representative of the Federal Government shall have access to any books, records, and documents of CITY that are pertinent to this Agreement for audits, examinations, excerpts, and transactions, and copies thereof shall be furnished when requested. SECTION H STATE AGREES: 1. To deposit with CITY within sixty (60) calendar days of receipt of CITY's billing thereof the amount of $150,000, which amount represents the total cost for work to be performed pursuant to the terms of this Agreement. STATE may, at its sole discretion and pursuant to an amendment to this Agreement, authorize a greater amount. Further, it is understood that if CITY informs STATE that additional funds are required, as set forth in Article 2, Section I, CITY will have no obligation to perform work and incur costs above $150,000, unless STATE, at its sole discretion and pursuant to an amendment to this Agreement, authorizes a greater amount 2. To review and provide comments to CITY within seven (7) work days from receipt of the draft MMP. 3. Within seven (7) work days of receipt, to review and approve, if appropriate, the draft final MMP submitted by CITY to STATE. 4. To review and provide comments to CITY within seven (7) work days from receipt of the draft planting report. 5. Within seven (7) work days of receipt, to review and approve, if appropriate, the draft final planting report submitted by CITY to STATE. 6. To review and provide comments to CITY by November 0 on the draft monitoring reports prepared by CITY, and submitted to STATE for three (3) years (with monitoring anticipated to begin in the year 2011 and end three (3) years later, currently anticipated to be year 2014). Within seven (7) work days of receipt, to review and approve, if appropriate, the draft final monitoring report submitted by CITY to STATE for three (3) years (with monitoring anticipated to begin in the year 2011 and end three (3) years later, currently anticipated to be year 2014). 4 SECTION III IT IS MUTUALLY AGREED: 1. All obligations of STATE under the terms of this Agreement are subject to the appropriation of resources by the Legislature, State Budget Act authority and the allocation of funds by the California Transportation Commission (CTC). 2. All applicable laws, rules and policies relating to the use of Federal or State funds shall apply, notwithstanding other provisions of this Agreement. 3. Nothing within the provisions of this Agreement is intended to create rights in third parties not party to this Agreement or to affect the legal liability of either party to the Agreement by imposing any standard of care different than the standard of care imposed by law. 4. Neither STATE nor any officer or employee thereof is responsible for any injury, damage, or liability occurring by reason of anything done or omitted to be done by CITY under or in connection with any work, authority, or jurisdiction conferred upon CITY under this Agreement. It is understood and agreed that, CITY will fully defend, indemnify, and save harmless STATE and all of its officers and employees from all claims, suits, or actions of every name, kind and description brought forth under, including, but not limited to, tortious, contractual, inverse condemnation, or other theories or assertions of liability occurring by reason of anything done or omitted to be done by CITY under this Agreement. 5. Neither CITY nor any officer or employee thereof is responsible for any injury, damage, or liability occurring by reason of anything done or omitted to be done by STATE under or in connection with any work, authority, or jurisdiction conferred upon STATE under this Agreement. It is understood and agreed that, STATE will fully defend, indemnify, and save harmless CITY and all of its officers and employees from all claims, suits, or actions of every name, kind and description brought forth under, including, but not limited to, tortious, contractual, inverse condemnation, or other theories or assertions of liability occurring by reason of anything done or omitted to be done by STATE under this Agreement. 6. In the event of any breach of this Agreement by either party, the other party may enforce this Agreement by any means available at law or in equity. In the event of litigation, mediation or arbitration to resolve any breach of, or dispute related to this Agreement, each party agrees to pay for their own attorneys' cost and expenses, without regard to who prevails. 7. A failure by either party to enforce any provision of this Agreement shall not be construed as a continuing waiver, or as a waiver of the right to compel enforcement of that provision. 8. This Agreement may be executed in several counterparts and all counterparts so executed shall constitute one agreement that shall be binding on all of the PARTIES notwithstanding that all of the PARTIES are not a signatory to the original or the same counterpart. If any provision of this Agreement is held invalid, the other provisions shall not be affected thereby. 9. No alteration or variation of the terms of this Agreement shall be valid unless made by a formal amendment executed by PARTIES hereto and no oral understanding or agreement not incorporated herein shall be binding on any of the PARTIES hereto. 10. The time of performance and/or duties or obligations of PARTIES hereunder shall be extended for the period during which performance was delayed or impeded by reason of riots, insurrections, war, fire, casualty, earthquake, acts of God, or other reasons of a like nature not the fault of the party performing such duty or obligation. Further, unless it is the fault of the party performing such duty or obligation, then neither party shall be required to restore any destroyed work unless additional funding is approved for such restoration work unless the party performing such duty or obligation was at fault. STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION CINDY McKIM Director By: Jim Beil Deputy District Director Capital Projects Outlay Program APPROVED AS TO FORM AND PROCEDURE: By: Deputy Attorney Department of Transportation CERTIFIED AS TO FUNDS: 0 District Budget Manager Neda Saber CERTIFIED AS TO FINANCIAL TERMS AND CONDITIONS: Accounting Administrator 6 CITY OF SAN JUAN CAPISTRANO By: CITY Mayor APPROVED AS TO FORM: By: CITY Attorney ATTEST: By: CITY Clerk EXHIBIT A Estimated Costs for labor, materials, planting, maintenance, monitoring, and reporting. Details Pending finalization of Final Draft Restoration Plan for Trabuco Creek/Caltrans Restoration Project Tasks/Materials Total Cost Materials -Plants, compost, mulch, irrigation supplies $55,000 Initial Efforts 2010 Tasks 1.0 (Mitigation and Monitoring Plan and 2.0(Permitting) $15,000 Labor Year 1(20 I 0) Tasks 3.0 (Planting, including Planting Report), 4.0 (Maintenance), and 5.0 (Monitoring and Reporting) $50,000 Labor Year 2 (201 l) Tasks 4.0 and 5.0 $20,000 Labor Year 3 (20 12) Tasks 4.0 and 5.0 $10,000 Total $150.000 EXHIBIT B Scope of Work for establishment of 1.264 acres of riparian habitat within the San Juan Creek Watershed in Orange County The following Scope of Work addresses the responsibilities and requirements of CITY in providing for the planting, maintenance, and monitoring of 1.264 acres of riparian habitat mitigation plantings within the San Juan Creek watershed, in Orange County, CA. This Scope of Work assumes a contract total of $150,000.00 which includes labor and material cost of plants, planting, maintenance, and monitoring for three (3) years. It is understood that all tasks will be performed in an appropriately timed and efficient manner. All CITY deliverables, including annual monitoring reports, shall be addressed to the following: Chris Flynn, Chief Branch C Environmental Analysis, California Department of Transportation 3347 Michelson Drive, Suite 100 Irvine, CA 92612 Task 1.0 Mitigation and Monitoring Plan CITY shall prepare and submit to STATE a Mitigation and Monitoring Plan (MMP) within thirty (30) calendar days of the execution of the Agreement. This MMP will include, but is not limited to: identify the property where the work will be performed, type of species to be planted, a map delineating areas to be planted, stream bank stabilization measures to be employed as applicable, and erosion control measures to be employed as applicable. Task 2.0 Permitting CITY shall be responsible for environmental compliance and shall obtain any and all necessary permits, agreements, and/or approvals for the planting of the 1.264 acres of riparian habitat. Task 3.0 Planting Following approval of the MMP, environmental compliance, issuance of any necessary permits, agreements, and/or approvals as well as removal of invasive/exotic species, CITY shall be responsible for planting 1.264 acres of riparian habitat within the San Juan Creek watershed in Orange County, CA. Said planting of the 1.264 acres of riparian habitat shall be completed in accordance with the approved MMA as specified in Task 1.0. Task 4.0 Maintenance CITY shall perform all Maintenance tasks. Maintenance activities are scheduled to take place immediately after planting and continue for three (3) years. Maintenance is an important task in the restoration of native plant communities and includes, but is not limited to, activities such as invasive eradication, supplemental irrigation, and planting of additional plant material. Site maintenance will be conducted for three (3) years and will begin immediately after re -vegetation is completed. The maintenance schedule will be flexible enough to maintain the planting areas free of invasive species and to ensure the required survival rate and growth of plants and seed material. During the maintenance period, non-native invasive plants will be removed as they are identified. Invasive control measures will include the following: (1) hand removal, (2) cutting or mowing, (3) and chemical herbicides where approved. Hand removal will be the primary method of invasive control since it is very effective in eliminating only the desired plants. Chemical control will be used for the highly invasive species. Any herbicide treatment will be specified by a licensed Pest Control Advisor and applied by a licensed Pest Control Applicator in consultation with CITY. The use of mechanical, chemical, and hand removal methods will be used as needed and appropriate. Riparian vegetation will be watered as needed during the establishment period to ensure long-term survival. CITY shall be responsible for obtaining any and all rights that are necessary to perform the work described herein. Water shall be taken in compliance with all state and federal laws, including any permits that may regulate such actions. Replacement plants will be installed as needed to meet the performance criteria as defined below. Task 5.0 Monitoring and Reporting Success Criteria CITY shall ensure that 1.264 acres of riparian habitat is established. The success criteria for planting are based on the goal of obtaining self-sustaining native and regionally appropriate vegetation cover. The criteria established to evaluate the success of the planting plan goals are as follows: Greater than 75 percent relative coverage of native plants within three (3) years (proportional contribution of species cover to total vegetation cover). 2. At least three (3) native plant species established within the first three (3) years and/or natural recruitment of native species, each with at least 10% coverage. 3. At least 50 percent viability of the foliage and stems above ground. 4. Decrease non-native invasive weeds to less than 10% cover within the first three (3) years. Progress towards meeting the success criteria will be monitored annually at the end of the growing season (approximately September). Annual qualitative monitoring will be performed in conjunction with a long-term maintenance program. The entire site will be visually inspected and qualitative or subjective determinations will be made. Estimates regarding presence or absence, population sizes, population distribution, and population condition will be made for each species planted. In addition, permanent photographic station locations will be established to document the progress of the mitigation plantings over the course of the monitoring period. The locations will be chosen to provide unobstructed views of the mitigation plantings and will be sufficient in number to adequately document the status of the site. Photographs will be taken at these locations on an annual 9 basis. Monitoring will take place for three (3) years after planting and will measure the progress toward and achievement of the final success criteria. Failure to meet success criteria will require re-evaluation of the site conditions followed by remedial or adaptive management measures such as replanting and/or weed control. Replanting may occur during the spring or fall (rainy season). If any particular species demonstrate failure -to -thrive trends (less then 50 percent viable foliage or stems), substitution with other native species will be considered appropriate. Reporting One (1) planting report will be submitted to STATE within thirty (30) calendar days after the planting of 1.264 acres of riparian habitat. This report will include, but is not limited to: a description of existing site conditions; a description of site preparation; a description of the planting materials used (i.e. cuttings, seedlings, seed, plugs, container size and source if not obtained from a commercial nursery); use of mulch and/or fertilizers; description of plan preparation, if necessary (i.e. how cuttings were obtained, size, treatment with rooting hormone); necessity for irrigation and/or fencing; and a summary of any planting problems and how said problems were resolved). Monitoring results will be submitted to STATE annually. The report will include, at a minimum, name and title of personnel conducting monitoring, maintenance, and reporting; observation dates for monitoring activities; photo documentation; vegetation summaries; any corrective actions that were taken, and a summary and evaluation of data for the current year compared to previous years (in the second through sixth years of monitoring). The reports will specify the progress toward or achievement of the success criteria. The first annual draft monitoring report will be due on October 1st the year following the completion of plantings with subsequent draft reports due each October 1 st for the next consecutive two (2) years. If adaptive management measures become necessary and changes are made to the planted species/planting densities, these changes will be noted in the annual monitoring report. If the final annual monitoring report (due October I" in the final year of monitoring currently anticipated to be the year 2014) indicates that 1.264 acres of riparian habitat will not be established, in whole or in part, the cause of the failure will .be identified and rectified through whatever means are considered adequate to establish 1.264 acres of riparian habitat, including consultation with STATE. 10 12—ORA-5 PM 8.58-9.35 San Juan Creek Bridge Mitigation — San Juan Creek Watershed EA No. 12-OE5700 District Agreement No. 12-0622 COOPERATIVE AGREEMENT THIS AGREEMENT, ENTERED INTO EFFECTIVE ON. the STATE OF CALIFORNIA, acting by and through its referred to as "STATE", and the , 2010, is between Department of Transportation, hereinafter CITY OF SAN JUAN CAPISTRANO, a body politic and a municipal corporation of the State of California, referred to herein as "CITY." ATTACHMENT 2 RECITALS 1. STATE and CITY, hereinafter referred to as "PARTIES", pursuant to Streets and Highways Code sections 114 and/or 130, are authorized to enter into this Agreement. 2. STATE is implementing a bridge widening project on the San Juan Creek within the City of San Juan Capistrano, hereinafter referred to as "PROJECT." PROJECT implementation will result in the permanent discharge to 0.031 acres and temporary discharges to 0.832 acres (including 0.122 acres of permanent shading) of un -vegetated waters of the United States and waters of the State, hereinafter referred to as "IMPACTS." 3. STATE, in order to comply with the terms of the approved environmental document (ED) for PROJECT, is required to mitigate for IMPACTS by creating a minimum of 1.264 acres of riparian habitat planted within the San Juan Creek watershed in Orange County, CA, hereinafter referred to as "MITIGATION PROJECT." 4. STATE has determined that the estimated cost of satisfying MITIGATION PROJECT is $150,000 and will be paid for from the phase 4 allocation of the PROJECT as described in Exhibit A, attached hereto and made a part of this Agreement. 5. Said MITIGATION PROJECT will occur within the San Juan Creek watershed in San Juan Capistrano, CA, hereinafter referred to as "PROPERTY," and more particularly described in Exhibit B, attached hereto and made a part of this Agreement. 6. STATE intends to enter into this agreement,to have CITY implement MITIGATION PROJECT on PROPERTY, as described in the Scope of Work, attached hereto as Exhibit C and made a part of this Agreement. 7. PARTIES now define herein below the terms and conditions under which this Agreement will be implemented. SECTION I CITY AGREES: 1. All work performed by CITY or performed on CITY's behalf, to implement MITIGATION PROJECT, shall be performed in accordance with all applicable state and federal laws, regulations, policies, procedures, and standards. 2. To obtain any and all environmental approvals and/or resource agency agreements, approvals, and/or permits required prior to implementation of MITIGATION PROJECT and to fully comply with any terms and conditions thereof. 3. To obtain any and all necessary PROPERTY rights and/or rights of entry required prior to the implementation of MITIGATION PROJECT and to fully comply with any terms and conditions thereof. Said rights of entry shall also include rights for STATE personnel to enter PROPERTY. 4. To submit a draft Mitigation and Monitoring Plan (MMP) to STATE within sixty (60) calendar days of execution of this Agreement for STATE's review and comment. The draft MMP shall address the requirements set forth in Exhibit C. 2 5. To address STATE's comments on the draft MMP and thereafter submit a final draft MMP to STATE within three (5) calendar days of receipt of STATITs comments on the draft MMP for STATE's review and approval, if appropriate. CITY shall provide STATE a copy of the final approved MMP. 6. To implement MITIGATION PROJECT, including all of the requirements and/or conditions set forth in Exhibit C. 7. To use one hundred percent (100%) of STATE's funds provided pursuant to this Agreement, in order to satisfy CITY's obligation and responsibilities set forth in this Agreement. 8. To submit an invoice to STATE, within thirty (30) calendar days of execution of this Agreement, in the amount of $150,000, which amount represents STATE's total financial obligation for all work to be performed pursuant to the terms of this Agreement. Likewise, City shall not be liable for work hereunder in excess of this funding limit except for costs caused.by its own errors or omissions in the performance of the work hereunder. 9. To submit one (I) draft planting report within fourteen (14) calendar days of the planting of 1.264 acres of riparian habitat to STATE, for STATE's review and comment. Said report shall contain all of the information described in Exhibit C. 10. To address STATE's comments on the draft planting report and thereafter submit a final draft planting report to STATE within seven (7) calendar days of receipt of STATE's comments for STATE's review and approval, if appropriate. 11. To submit draft monitoring reports to STATE for three (3) years (with monitoring anticipated to begin in the year 2011 and end three years later, currently anticipated to be year 2014) by October 1 st of each year. Said reports shall contain all of the information described in Exhibit C. 12. To address STATE's comments on the draft monitoring report and thereafter submit a final draft monitoring report to STATE by October 1st for three (3) years (with monitoring anticipated to begin in the year 2011 and end three (3) years later, currently anticipated to be year 2014) for STATE's review and approval, if appropriate. 13. If at any time during the three (3) year monitoring period (with monitoring anticipated to begin in the year 2011 and end three (3) years later currently anticipated to be year 2014) it is determined by STATE that progress towards the success criteria, as described in Exhibit C and hereinafter referred to as "SUCCESS CRITERIA," is not being achieved then CITY shall implement any necessary remedial or adaptive management measures such as replanting and/or weed control. City's obligation to implement additional remedial measures is subject to State's providing additional funding determined to be reasonably necessary to implement such additional remedial measures. 14. CITY shall retain all books, documents, papers, accounting records, and other evidence pertaining to cost incurred, including support data for cost proposals, and to make such materials available at the respective offices of STATE at all reasonable times. STATE, Federal Highway Administration (FHWA), or any duly authorized representative of the Federal Government shall have access to any books, records, and documents of CITY that are pertinent to this Agreement for audits, examinations, excerpts, and transactions, and copies thereof shall be furnished when requested. 3 15. City agrees to ensure the created mitigation area remains undeveloped open space in perpetuity pursuant to any requirements imposed thereon by the United States Army Corps of Engineers, the San Diego Regional Water Quality Control Board, the California Department of Fish and Game, or other permitting agencies. 16. City Agrees to implement created MITIGATION PROJECT in such a manner to fulfill all compensatory mitigation required for State Project EA OE570, San Juan Creek Bridge and Auxiliary lane at Camino Capistrano subject to the funding limits hereunder. SECTION II STATE AGREES: To deposit with CITY within sixty (60) calendar days of receipt of CITY's billing thereof the amount of $150,000, which amount represents STATE's total financial obligation for all work to be performed pursuant to the terms of this Agreement, provided that STATE may, at its sole discretion and pursuant to an amendment to this Agreement, authorize a greater amount. 2. To review and provide comments to CITY within ten (10) calendar days from receipt of the draft MMP. 3. Within five (5) calendar days of receipt, to review and approve, if appropriate, the draft final MMP submitted by CITY to STATE. 4. To review and provide comments to CITY within fourteen (14) calendar days from receipt of the draft planting report. 5. Within seven (7) calendar days of receipt, to review and approve, if appropriate, the draft final planting report submitted by CITY to STATE. 6. To review and provide comments to CITY by November 1` on the draft monitoring reports prepared by CITY, and submitted to STATE for three (3) years (with monitoring anticipated to begin in the year 2011 and end three (3) years later, currently anticipated to be year 2014). 7. Within seven (7) calendar days of receipt, to review and approve, if appropriate, the draft final monitoring report submitted by CITY to STATE for three (3) years (with monitoring anticipated to begin in the year 2011 and end three (3) years later, currently anticipated to be year 2014). SECTION III IT IS MUTUALLY AGREED: All obligations of STATE under the terms of this Agreement are subject to the appropriation of resources by the Legislature, State Budget Act authority and the allocation of funds by the California Transportation Commission (CTC). In the event that the State does not budget the funds necessary to implement the MITIGATION PROJECT, the CITY shall be under no obligation to perform said work under this agreement. 2. All applicable laws, rules and policies relating to the use of Federal or State funds shall apply, notwithstanding other provisions of this Agreement. 4 3. That this Agreement is not intended to, nor does it address, any remediation work which may be required if the SUCCESS CRITERIA are not achieved by October 1, 2014. 4. Neither STATE nor any officer or employee thereof is responsible for any injury, damage, or liability occurring by reason of anything done or omitted to be done by CITY under or in connection with any work, authority, or jurisdiction conferred upon CITY under this Agreement. It is understood and agreed that, CITY will fully defend, indemnify, and save harmless STATE and all of its officers and employees from all claims, suits, or actions of every name, kind and description brought forth under, including, but not limited to, tortious, contractual, inverse condemnation, or other theories or assertions of liability occurring by reason of anything done or omitted to be done by CITY under this Agreement. 5. Neither CITY nor any officer or employee thereof is responsible for any injury, damage, or liability occurring by reason of anything done or omitted to be done by STATE under or in connection with any work, authority, or jurisdiction conferred upon STATE under this Agreement. It is understood and agreed that, STATE will fully defend, indemnify, and save harmless CITY and all of its officers and employees from all claims, suits, or actions of every name, kind and description brought forth under, including, but not limited to, tortious, contractual, inverse condemnation, or other theories or assel I ions of liability occurring by reason of anything done or omitted to be done by STATE under this Agreement. 6. In the event of any breach of this Agreement by either party, the other party may enforce this Agreement by any means available at law or in equity. In the event of litigation, mediation or arbitration to resolve any breach of, or dispute related to this Agreement, each party agrees to pay for their own attorneys' cost and expenses, without regard to who prevails 7. A failure by either party to enforce any provision of this Agreement shall not be construed as a continuing waiver, or as a waiver of the right to compel enforcement of that provision. 8. This Agreement may be executed in several counterparts and all counterparts so executed shall constitute one agreement that shall be binding on all of the PARTIES notwithstanding that all of the PARTIES are not a signatory*to the original or the same counterpart. If any provision of this Agreement is held invalid, the other provisions shall not be affected thereby. 9. No alteration or variation of the terms of this Agreement shall be valid unless made by a formal amendment executed by PARTIES hereto and no oral understanding or agreement not incorporated herein shall be binding on any of the PARTIES hereto. 10. This Agreement shall terminate upon STATE's written acknowledgment that MITIGATION PROJECT has met the SUCCESS CRITERIA and the final monitoring report has been approved by STATE. 11. Acts of God. The time of performance and/or duties or obligations. of the parties hereunder shall be extended for the period during which performance was delayed or impeded by reason of riots, insurrections, war, fire, casualty, earthquake, acts of God, or other reasons of a like nature not the fault of the party performing such duty or obligation, provided that neither party shall be required to restore any destroyed work unless additional funding is approved for such restoration work." 5 STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION CITY OF SAN JUAN CAPISTRANO By: By: Cindy Mckim Joe Tait, City Manager Deputy Director of Transportation By: Jim Beil Deputy District Director Capital Projects Outlay Program APPROVED AS TO FORM & PROCEDURE: APPROVED AS TO FORM: By: Attorney, Department of Transportation CERTIFIED AS TO FUNDS: By: Neda Saber, District Budget Manager Department of Transportation By: Omar Sandoval, City Attorney ATTEST: By: Maria Morris, City Clerk CERTIFIED AS TO FINANCIAL TERMS AND CONDITIONS: By: Date: Accounting Administrator Department of Transportation 6 EXHIBIT A Estimated Costs for labor, materials, planting, maintenance, monitoring, and reporting. Tasks/Materials Total Cost Materials -Plants, compost, mulch, irrigation supplies $ Initial Efforts (2010) Tasks 1.0 (Mitigation and Monitoring Plan) and 2.0 (Permitting) Labor Year I (20 I 0) Tasks 3.0 (Planting, including Planting Report), 4.0 (Maintenance), and 5.0 (Monitoring and Reporting) Labor Year 2 (2011) Tasks 4.0 and 5.0 Labor Year 3 (20 12) Tasks 4.0 and 5.0 Total $150,000 EXHIBIT B Scope of Work for Mitigation Project within the San Juan Creek Watershed in Orange County The following Scope of Work addresses the responsibilities and requirements of CITY in providing for the planting, maintenance, and monitoring of 1.264 acres of riparian habitat mitigation plantings within the San Juan Creek watershed, in Orange County, CA. This Scope of Work assumes a contract total of $150,000.00 which includes labor and material cost of plants, planting, maintenance, and monitoring for three (3) years. It is understood that all tasks will be performed in an appropriately timed and efficient manner. All CITY deliverables, including annual monitoring reports, shall be addressed to the following: Chris Flynn, Chief Branch C Environmental Analysis, California Department of Transportation 3347 Michelson Drive, Suite 100 Irvine, CA 92612 Task 1.0 Mitigation and Monitoring Plan CITY shall prepare and submit to STATE a Mitigation and Monitoring Plan (MMP) within sixty (60) calendar days of the execution of this Agreement. This MMP will include, but is not limited to: identify the property where the work will be performed, type of species to be planted, a map delineating areas to be planted, stream bank stabilization measures to be employed as applicable, and erosion control measures to be employed as applicable. Task 2.0 Permitting CITY shall be responsible for environmental compliance and shall obtain any and all necessary permits, agreements, and/or approvals for the planting of the 1.264 acres of riparian habitat. Task 3.0 Planting Following approval of the MMP, environmental compliance, issuance of any necessary permits, agreements, and/or approvals as well as removal of invasive/exotic species, CITY shall be responsible for planting 1.264 acres of riparian habitat within the San Juan Creek watershed in Orange County, CA. Said planting of the 1.264 acres of riparian habitat shall be completed in accordance with the approved MMP as specified in Task 1.0. Task 4.0 Maintenance CITY shall perform all Maintenance tasks. Maintenance activities are scheduled to take place immediately after planting and continue for three (3) years. Maintenance is an important task in the restoration of native plant communities and includes, but is not limited to, activities such as invasive eradication, supplemental irrigation, and planting of additional plant material. Site maintenance will be conducted for three (3) years and will begin immediately after re -vegetation is completed. The maintenance schedule will be flexible enough to maintain the planting areas free of invasive species and to ensure the required survival rate and growth of plants and seed material. 8 During the maintenance period, non-native invasive plants will be removed as they are identified. Invasive control measures will include the following: (1) hand removal, (2) cutting or mowing, (3) and chemical herbicides where approved. Hand removal will be the primary method of invasive control since it is very effective in eliminating only the desired plants. Chemical control will be used for the highly invasive species. Any herbicide treatment will be specified by a licensed Pest Control Advisor and applied by a licensed Pest Control Applicator in consultation with CITY. The use of mechanical, chemical, and hand removal methods will be used as needed and appropriate. Riparian vegetation will be watered as needed during the establishment period to ensure long-term survival. CITY shall be responsible for obtaining any and all rights that are necessary to perform the work described herein. Water shall be taken in compliance with all state and federal laws, including any permits that may regulate such actions. Replacement plants will be installed as needed to meet the performance criteria as defined below. Task 5.0 Monitoring and Reporting Success Criteria The ultimate goal for the mitigation project is to have 1.264 acres of established riparian habitat. The success criteria for planting are based on the goal of obtaining self-sustaining native and regionally appropriate vegetation cover. The criteria established to evaluate the success of the planting plan goals are as follows: 1. Greater than 75 percent relative coverage of native plants within three (3) years (proportional contribution of species cover to total vegetation cover). 2. At least three (3) native plant species established within the first three (3) years and/or natural recruitment of native species, each with at least 10% coverage. 3. At least 50 percent viability of the foliage and stems above ground. 4. Decrease non-native invasive weeds to less than 10% cover within the first three (3) years. Progress towards meeting the success criteria will be monitored annually at the end of the growing season (approximately September). Annual qualitative monitoring will be performed in conjunction with a long- term maintenance program. The entire site will be visually inspected and qualitative or subjective determinations will be made. Estimates regarding presence or absence, population sizes, population distribution, and population condition will be made for each species planted. In addition, permanent photographic station locations will be established to document the progress of the mitigation plantings over the course of the monitoring period. The locations will be chosen to provide unobstructed views of the mitigation plantings and will be sufficient in number to adequately document the status of the site. Photographs will be taken at these locations on an annual basis. Monitoring will take place for three (3) years after planting and will measure the progress toward and achievement of the final success criteria. Failure to meet success criteria will require re-evaluation of the site conditions followed by remedial or adaptive management measures such as replanting and/or weed control. Replanting may occur during the spring or fall (rainy season). If any particular species demonstrate failure -to -thrive trends (less then 50 percent viable foliage or stems), substitution with other native species will be considered appropriate. 9 Reporting One (1) planting report will be submitted to STATE within thirty (30) calendar days of the planting of 1.264 acres of riparian habitat. This report will include, but is not limited to: a description of existing site conditions; a description of site preparation; a description of the planting materials used (i.e. cuttings, seedlings, seed, plugs, container size and source if not obtained from a commercial nursery); use of mulch and/or fertilizers; description of plan preparation, if necessary (i.e. how cuttings were obtained, size, treatment with rooting hormone); necessity for irrigation and/or fencing; and a summary of any planting problems and how said problems were resolved). Monitoring results will be submitted to STATE annually. The report will include, at a minimum, name and title of personnel conducting monitoring, maintenance, and reporting; observation dates for monitoring activities; photo documentation; vegetation summaries; any corrective actions that were taken, and a summary and evaluation of data for the current year compared to previous years (in the second through sixth years of monitoring). The reports will specify the progress toward or achievement of the success criteria. The first annual draft monitoring report will be due on October 1st the year following the completion of plantings with subsequent draft reports due each October 1 st for the next consecutive two (2) years. If adaptive management measures become necessary and changes are made to the planted species/planting densities, these changes will be noted in the annual monitoring report. If the final annual monitoring report (due October I" in the final year of monitoring currently anticipated to be the year 2014) indicates that the mitigation project has failed to achieve its goals, in whole or in part, the cause of the failure will be identified and rectified through whatever means are considered adequate to meet the goals of the mitigation project, including consultation with STATE. 10 12—ORA-5 PM 8.58-9.35 San Juan Creek Bridge Mitigation — San Juan Creek Watershed EA No. 12-OE5700 District Agreement No. 12-0622 -COOPERATIVE AGREEMENT THIS AGREEMENT, ENTERED INTO EFFECTIVE ON -, 2010, is between the STATE OF CALIFORNIA, acting by and through its Department of Transportation, hereinafter referred to as "STATE", and the CITY OF SAN JUAN CAPISTRANO, a body politic and a municipal corporation of the State of California, -referred to herein as "CITY." ATTACHMENT 3 RECITALS - STATE and CITY, hereinafter referred to as "PARTIES", pursuant to Streets and Highways Code sections 114 and/or 130, are authorized to enter into this Agreement. - STATE is implementing a bridge widening project on the San Juan Creek within the City of San Juan Capistrano, hereinafter referred to as "PROJECT." PROJECT implem„_._.:__ ."11 -__.d, in aeFe5 ii� lieFinanent sharing) of un vegetated watefs Of 01� I -Hit -d StMeS Bald — meta of the Stfite. 3. Pursuant°TATt,i---d--to consultation with Recional Water Quality Control Board. San Die¢o Region. CRWOCR for PROJECT, S"PATE received a Clean Water Act 401 Water Ouality Certification, File No. 09C- 034 dated December 7. 2009 and amended on 2010, collectively, "401 Certification'" and incorporated herein by this reference. 4. PursuantisFegxired to consultation with the California Department of Fish and Game DF(Imitigme for PROJECT. STATE received a 1602 Agreement Regarding Proposed Stream or Lake Alteration Notification No. 1600 -2009 -0227 -RS dated December 8 2009 and amended on , 2010, collectively " 1602 SAA" and incorporated herein by this reference. in ninium of Waters of the U.S./State condition Io. of ?6" -^ ^ ..v =--�-- '•^'•''•' _ •'•d within the 401 Certification and Compensatory Mitigation condition 5 of the 1602 SAA, collect ivelvSan jami Creek vatershed in ^ ange GA, heFe-,�.,,ififteneF referred to herein as "PERMIT REOUIREMEN"LS.•'•^ '-IGAT')"' nD^"'^T" 6. CITY desires to assist STATE by satisfvine PERMIT REOUIREMENTS 4 PARTIES haves A E has determined that the estimated cost of satisfying PERMIT REQUIREMENTSMITIGATI^ >x -r' DD^ID^TDD^r"^T is $150,000 and will be paid for from the phase 4 allocation of the PROJECT as described in Exhibit A, attached hereto and made a part of this Agreement.- 5 Said Ml PGATION PROJFCT V il I G-� I IF Wkh'a &I,, � a n J am &--k vat ershed in San juan "PROPERTY." and fliffePaAd..,...-'6,.- ....„ort B, a4istelied-.+oicmvna- made -rpvr.-vrthis n 944,0.. A ...... ....... �+�Ccnmrc 7-8. PARTIES now define herein below the terms and conditions under which this Agreement will be implemented. SECTION I N111%[eT7b1W I. To submit an invoice to STATE, within thirty (30) calendar days of execution of this Abreement, in the amount of $150.000, which amount represents the total cost for all work to be performed Pursuant to the terms of this A'reement. STATE may, at its sole discretion and Pursuant to an amendment to this Agreement. authorize a greater amount. 2. To promptly notify STATE in writing if CITY anticipates that the cost to perform the work amendment to this Agreement. 3. To use all of STATE's funds, including any interest accrued thereon, to perform any and all necessary work to satisfy PERMIT REQUIREMENTS, including perforating the work described in Exhibit B. Scope of Work, attached hereto and made a part of this Agreement a -.-_All work performed by CITY or performed on CITY's behalf, to satisfy PERMIT REOUIREMENTS.i__ .._.._• � shall be performed in accordance with all applicable state and federal laws, regulations, policies, procedures, and standards._ 265. To obtain any and all environmental approvals and/or resource agency agreements, approvals, and/or permits required prior to implementation of any work described herein this Aereement"",.F�T1f°"T'�°odE�^--Tr and to fully comply with any terms and conditions thereof. 3-6. To obtain any and all necessaryrp opertyPono��oP7E T rights and/or rights of entry required prior to the implementing any work described herein this !implementation of MITIGATION PRBJ€6T and to fully comply with any terms and conditions thereof. Said rights of entry shall also include rights for STATE personnel to enter prpperty.pp^p,-rtvRER:PY 4:7_To submit a draft Mitigation and -Monitoring Plan (MMP) to STATE within sixty (60) calendar days of- execution of this Agreement for STATE's review and comment. The draft MMP shall address the requirements set forth in Exhibit B. (3- 6. To 6To address STATE's comments on the draft MMP and thereafter submit a final draft MMP to STATE within fourteen (14) thFee-(5) calendar days of receipt of STATE's comments on the draft MMP for STATE's review and approval, if appropriate. CITY shall provide STATE a copy of the final approved MMP,_ 2. :�O use SHe hURdFed percent (100%) 4 STATE's funds provided PHFNHHm-��m v .._ti.gmiaii mid .,ti es se; f.._.. 9—To submit one (1) draft planting report aa-kweice to STATE -within thirty (30) calendar days 7. Te submit „_ , a__u plantFelien_ �Nithiii founeen n) _ end.... days of the planting the of 1.264 acres of riparian habitat,•-STATTEfor STATE's review and comment. Said report shall contain all of the information described in Exhibit B. E 8. To address STATE's comments on the draft planting report and thereafter submit a final draft planting report to STATE within fourteen (14) work dw days of receipt of STATE's comments for STATE's review and approval, if appropriate. 8:9_To submit annual draft monitoring reports to STATE for three (3) years (with monitoring anticipated to begin in the year 2011 and ending three years later, currently anticipated to be year 2014) by October Ist of each year. Said reports shall contain all of the information described in Exhibit B. C, 9-10 To address STATE's comments on the draft monitoring report and thereafter submit a final draft monitoring report to STATE by October I st for three (3) years (with monitoring anticipated to begin in the year 2011 and end three (3) years later, currently anticipated to be year 2014) for STATE's review and approval, if appropriate. 4&11_1£ at any time during the three (3) year monitoring period (with monitoring anticipated to begin in the year 2011 and end three (3) years later currently anticipated to be year 2014) it is determined by STATE that progress towards the success criteria, as described in Exhibit BG and hereinafter referred to as "SUCCESS CRITERIA," is not being achieved then CITY shall implement any necessary remedial or adaptive management measures such as replanting and/or weed control 12. To conform to the provisions of Labor code sections 1720 through 1815, all applicable regulations and coverage determinations issued by the Director of Industrial Relations CITY agrees to include prevailing wane requirements in its contracts for Public work Wok performed by CITY's own forces is exempt from the Labor Code's prevailing wage requirements forth in CITY's contracts. 14. Within ninetv (90) calendar days of submission of the third annual monitoring report or SUCCESS CRITERIA is achieved, whatever comes last, to furnish STATE with a detailed been deducted, or to bill STATE for any additional amount required to complete STATE's financial obligations set forth in this Agreement. 4+15_T-"'.,�.-IP-Ae-`-" retain all books, documents, papers, accounting records, and other evidence pertaining to cost incurred, including support data for cost proposals, and to make such materials available at the respective offices of STATE at all reasonable times. STATE, Federal Highway Administration (FHWA), or any duly authorized representative of the Federal Government shall have access to any books, records, and documents of CITY that me pertinent to this Agreement for audits, examinations, excerpts, and transactions, and copies thereof shall be furnished when requested.. SECTION 11 - STATE AGREES: To deposit with CITY within sixty (60) calendar days of receipt of CITY's billing thereof the amount of $150,000, which amount represents theST�,-ATTc'- total costAtianeial obligation fora44 work to be performed pursuant to the terms of this Agreement. Agfeeniem, provided that STATE may, at its sole discretion and pursuant to an amendment to this Agreement, authorize a greater amount. Further, it is understood that if CITY informs STATE that additional funds are required, as set forth in Article 2, Section I CITY will have no obligation to perform work and incur costs above $150,000, unless STATE, at its sole discretion and pursuant to an amendment to this Agreement, authorizes a greater amount 2. To review and provide comments to CITY within seven (7) workteft+l%en4eadav days from receipt of the draft MMP. 3. Within seven (7) wor4iive{5}eelendar days of receipt, to review and approve, if appropriate, the draft final MMP submitted by CITY to STATE. 4. To review and provide comments to CITY within seven (7) worker days from receipt of the draft planting report._ 5. Within seven (7) workealendar days of receipt, to review and approve, if appropriate, the draft final planting report—submitted by CITY to STATE. 6. To review and provide comments to CITY by November I" on the draft monitoring reports prepared by CITY, and submitted to STATE for three (3) years (with monitoring anticipated to begin in the year 2011 _and end three (3) years later, currently anticipated to be year 2014). 7. Within seven (7) workealemtm, days of receipt, to review and approve, if appropriate, the dmft final —monitoring report submitted by CITY to STATE for three (3) years (with monitoring anticipated to begin in the year 2011 and end three (3) years later, currently anticipated to be year 2014).- SECTION III IT IS MUTUALLY AGREED: - I. All obligations of STATE under the terms of this Agreement are subject to the appropriation of resources by the Legislature, State Budget Act authority and the allocation of funds by the California Transportation Commission (CTC). In the event that the State d-- not ` d -et the 2. All applicable laws, rules and policies relating to the use of Federal or State funds shall apply, notwithstanding other provisions of this Agreement. - 3. Nothing within the provisions of this Agreement is intended to create rights in third parties not party to this Agreement or to affect the legal liability of either party to the Agreement by imposing any standard of care different than the standard of care imposed by law 9. That thisAgmemen! is net intended to, nef does it address, an� Feniedia4ion wedc %Nhieh mav be regoa'ed ifthe SUCCESS CRIT -1]40 i,e mat AA'e%dd bjOetctabef i2014 4. Neither STATE nor any officer or employee thereof is responsible for any injury, damage, or liability occurring by reason of anything done or omitted to be done by CITY under or in connection with any—work, authority, or jurisdiction conferred upon CITY under this Agreement. It is understood and agreed that, CITY will fully defend, indemnify, and save harmless STATE and all of its officers and employees —from all claims, suits, or actions of every name, kind and description brought forth under, including, but—not limited to, tortious, contractual, inverse condemnation, or other theories or assertions of liability occurring by reason of anything done or omitted to be done by CITY under this Agreement. 5. Neither CITY nor any officer or employee thereof is responsible for any injury, damage, or liability occurring by reason of anything done or omitted to be done by STATE under or in connection with any work, authority, or jurisdiction conferred upon STATE under this Agreement. It is understood and agreed that, STATE will fully defend, indemnify, and save hamtless CITY and all of its officers and employees from all claims, suits, or actions of every name, kind and description brought forth under, including, but not limited to, tortious, contractual, inverse condemnation, or other theories or assertionsasseP ions of liability occurring by reason of anything done or omitted to be done by STATE under this Agreement. 6. In the event of any breach of this Agreement by either party, the other party may enforce this Agreement by any means available at law or in equity. In the event of litigation, mediation or arbitration to resolve any breach of, or dispute related to this Agreement, each party agrees to pay for their own attorneys' cost and expenses, without regard to who prevails, 7. A failure by either party to enforce any provision of this Agreement shall not be construed as a continuing waiver, or as a waiver of the right to compel enforcement of that provision. 8. This Agreement may be executed in several counterparts and all counterparts so executed shall constitute one—agreement that shall be binding on all of the PARTIES notwithstanding that all of the PARTIES are not a -signatory to the original or the same counterpart. If any provision of this Agreement is held invalid, the other provisions shall not be affected thereby. 9. No alteration or variation of the terms of this Agreement shall be valid unless made by a formal amendment executed by PARTIES hereto and no oral understanding or agreement not incorporated herein shall be binding on any of the PARTIES hereto. 44-.10. Aeis-of-God. The time of performance and/or duties or obligations of PARTIESthe-peRies hereunder shall be extended for the period during which performance was delayed or impeded by reason of riots, insurrections, war, fire, casualty, earthquake, acts of God, or other reasons of a like nature not the fault of the party performing such duty or obligation. Further, unless it is the fault of the Party Performing such duty or obligation thence neither party shall be required to restore any destroyed work unless additional funding is approved for such restoration work unless the party performing such dutv or obligation was at fault= STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION CINDY McKIM Director Jim Bell Deputy District Director Capital Projects Outlay Program APPROVED AS TO FORM AND PROCEDURE: BV. Deputy Attorney Department of Transportation CERTIFIED AS TO FUNDS: District Budget Manager Neda Saber CERTIFIED AS TO FINANCIAL TERMS AND CONDITIONS: By: Accounting Administrator CITY OF SAN JUAN CAPISTRANO Joe Tait, City Manager APPROVED AS TO FORM: By: Omar Sandoval, City Attorney ATTEST: By: Maria Morris, City Clerk Christy Jakl From: Bill Ramsey n Sent: Thursday, August 19, 2010 1:18 PM 1 Ito To: Omar Sandoval 1 Cc: 'Derek Ostensen'; Grant Taylor; Nasser Abbaszadeh; Steven Apple Subject: RE: Caltrans Coop Agreement for Camino Capistrano Project Attachments: Caltrans -City of SJC-Coop Agree -2010 -8 -19 -Caltrans r&s.doc; 12-0622 CF final edit 7-26-2010.doc Importance: High Omar: Attached for review and comment is the Caltrans revised draft agreement, a redline/strikeout version and "clean" version. These were submitted by Caltrans earlier today. We'd like to get these reviewed as soon as possible so that if we decide the agreement requires further City Council action, we can get that scheduled. Can you get these reviewed by next Wednesday (Aug. 25)? After you've had an opportunity to review, let's discuss and decide how to proceed and whether a meeting with Caltrans will be necessary to hammer out any remaining details or to discuss any potential "deal breakers" that may exist. Thanks. Bill Ramsey, AICP Community Development Department (949) 443-6334 / x6334 -----Original Message ----- From: Nooshin Yoosefi[mailto:nooshinyouosefi@dot.ca.gov] Sent: Thursday, August 19, 2010 9:39 AM To: Bill Ramsey Cc: christopher h_le@dot.ca.gov; chris_flynn@dot.ca.gov; Derek Ostensen; Grant Taylor; mill_lim@dot.ca.gov; Nasser Abbaszadeh; Steven Apple Subject: Fw: Caltrans Coop Agreement for Camino Capistrano Project Hi AII, I agree with Derek that the merge of the two documents was difficult due to significant differences between the two versions. Please see the attached document. For best viewing, please pick "Original Showing Markup", and in "Show", make sure you deselect "Formatting". (See attached file: 12-0622 CF final edit 2010-07-26 Main comments rl.doc) I have also attached the version we sent on 7/26 (without redline/strikethrough). (See attached file: 12-0622 CF final edit 7-26-2010.doc) Thanks NOOSHIN YOOSEFI, PE, PMP California Department of Transportation, District 12 Project Manager Office: (949) 724-2131, Cell: (949) 279-9367 Fax: (949) 440-4465 Christy Jakl From: Christy Jakl Sent: Thursday, August 19, 2010 1:07 PM To: Ayako Rauterkus Cc: Bill Ramsey Subject: Cooperative Agr w/ Caltrans - Trabuco Creek Habitat Hello, I wanted to follow-up with you on an item that went to Council on 7/20, the Cooperative Agreement with Caltrans for Trabuco Creek Habitat Restoration Plan. Our office never received a the final agreements to forward to Joe for signature. Do you know the status of this agreement? Thank you! Christi Jakl Deputy City Clerk City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 (949) 443-6310 1 (949) 493-1053 fax Christy Jakl From: Christy Jakl Sent: Wednesday, August 18, 2010 12:51 PM To: Catherine Salcedo Subject: Missing Agreements Hi Cathy, Our office has sent back a couple agreements for Joe's signature and they have not returned. Do you know if Joe still has these agreements? Cooperative Agreement with Caltrans — Participation in the Trabuco Creek Habitat Restoration Plan Cooperative Agreement with SOC Watershed Management — 2010-2011 Annual Cost Share Budget Thank you for your help. Christi Jakl Deputy City Clerk City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 (949) 443-6310 1 (949) 493.1053 fax MEMORANDUM TO: Joe Tait, City Manage FROM: Grant Taylor, Development Services Director 7/20/2010 D71 SUBJECT: Continued Consideration of a Proposed Cooperative Agreement with the California Department of Transportation (CalTrans) Regarding Participation in the Trabuco Creek Habitat Restoration Plan - CONTINUED FROM JULY 6, 2010. RECOMMENDATION By motion, authorize the City Manager to execute the cooperative agreement with the California Department of Transportation (CalTrans) for participation in the Trabuco Creek Habitat Restoration Plan. SITUATION Caltrans has requested that the City enter into a cooperative agreement regarding habitat mitigation on City -owned property along Trabuco Creek. Caltrans has offered the City a contribution of $150,000 to fund the restoration of 1.264 acres of riparian habitat along Trabuco Creek. The City would also be responsible for monitoring the mitigation area for a period of five years to assure the establishment of native plants within the creek corridor. Caltrans has been required by the Resource Agencies to mitigate the impacts of planned freeway and ramp improvements to the 1-5 southbound (SB) hook ramps at Camino Capistrano which also require the widening of the southbound 1-5 bridge deck over San Juan Creek and San Juan Creek Road. Consequently, the proposed mitigation would allow Caltrans to proceed in a timely manner with completing those road improvements. At the April 20, 2010 meeting, the City Council initiated negotiation of the cooperative agreement and authorized staff to proceed and work with Caltrans on such an agreement. Since that time, staff has had two meeting with Caltrans staff, reviewed the Draft Agreement, and advised Caltrans of necessary revisions to the agreement. The main revisions requested by staff consist of the following; • Inclusion of a provision that caps the City's maximum financial responsibility under the agreement to the $150,00 amount that would be contributed by Caltrans. • Inclusion of a provision that the City shall not be responsible for habitat restoration improvements resulting from damage during the monitoring period resulting from "Acts of God." Agenda Report Page 2 July 20, 2010 Staff recommends that the City Council authorize the City Manager to execute the cooperative agreement with the California Department of Transportation (CalTrans) for participation in the Trabuco Creek Habitat Restoration Plan.. FINANCIAL CONSIDERATIONS The cost of habitat restoration would be fully funded by the $150,000 Caltrans contribution. Staff -recommended provisions to the agreement would cap the City's responsibility at that amount. The City Council has previously allocated up to a maximum of $500,000 of Measure Y bond proceeds for habitat restoration work as a 25% match based on Measure M grant guidelines. The City has also committed to provide a 50% ($100,000) match to qualify for the Habitat Conservation Fund Program grant. PUBLIC NOTIFICATION Public notification is provided through posting of the meeting agenda. By motion, authorize the City Manager to execute the cooperative agreement with the California Department of Transportation (CalTrans) for participation in the Trabuco Creek Habitat Restoration Plan. Respectfully submitted, Prepared by: Grant Taylor William A. Ramsey, AICP Development Services Director Principal Planner Attachment: Draft Caltrans Cooperative Agreement. 12—ORA-5 PM 8.58-9.35 San Juan Creek Bridge Mitigation — San Juan Creek Watershed EA No. 12-OE5700 District Agreement No. 12-0622 CITY OF SAN JUAN CAPISTRANO, a body politic and a municipal corporation of the State of California, referred to herein as "CITY." ATTACHMENT RECITALS I. STATE and CITY, hereinafter referred to as 'PARTIES", pursuant to Streets and Highways Code sections 114 and/or 130, are authorized to enter into this Agreement. 2. STATE is implementing a bridge widening project on the San Juan Creek within the City of San Juan Capistrano, hereinafter referred to as "PROJECT." PROJECT implementation will result in the permanent discharge to 0.031 acres and temporary discharges to 0.832 acres (including 0.122 acres of permanent shading) of un -vegetated waters of the United States and waters of the State, hereinafter referred to as "IMPACTS." 3. STATE, in order to comply with the terms of the approved environmental document (ED) for PROJECT, is reauiredJnteede to mitigate for IMPACTS by creating a minimum of 1.264 acres of riparian habitat planted within the San Juan Creek watershed in Orange County, CA, hereinafter referred to as "MITIGATION PROJECT." 4. STATE has determined that the estimated cost of satisfying MITIGATION PROJECT is $150,000 and will be paid for from the phase 4 allocation of the PROJECT as described in Exhibit A, attached hereto and made a part of this Agreement. 5. Said MITIGATION PROJECT will occur within the San Juan Creek watershed in San Juan Capistrano, CA, hereinafter referred to as 'PROPERTY," and more particularly described in Exhibit E, attached hereto and made a part of this Agreement. 6. STATE intends to enter into this agreement to have CITY implement MITIGATION PROJECT on PROPERTY, as described in the Scope of Work, attached hereto as Exhibit C and made a part of this Agreement. 7. PARTIES now define herein below the terms and conditions under which this Agreement will be implemented. 2 SECTION 1 CITY AGREES: I. All work performed by CITY or performed on CITY's behalf, to implement MITIGATION PROJECT, shall be performed in accordance with all applicable state and federal laws, regulations, policies, procedures, and standards. 2. To obtain any and all environmental approvals and/or resource agency agreements, approvals, and/or permits required prior to implementation of MITIGATION PROJECT and to fully comply with any terms and conditions thereof. 3. To obtain any and all necessary PROPERTY rights and/or rights of entry required prior to the implementation of MITIGATION PROJECT and to fully comply with any terms and conditions thereof. Said rights of entry shall also include rights for STATE personnel to enter PROPERTY. 4. To submit a draft Mitigation and Monitoring Plan (MMP) to STATE within sixt 60 thirty (30) calendar days of execution of this Agreement for STATE's review and comment. The draft MMP shall address the requirements set forth in Exhibit C. 5. To address STATE's comments on the draft MMP and thereafter submit a final draft MMP to STATE within three (5) calendar days of receipt of STATE's comments on the draft MMP for STATE's review and approval, if appropriate. CITY shall provide STATE a copy of the final approved MMP. 6. To implement MITIGATION PROJECT, including all of the requirements and/or conditions set forth in Exhibit C. 7. To use one hundred percent (100%) of STATE's funds provided pursuant to this Agreement, in order to satisfy CITY's obligation and responsibilities set forth in this Agreement. S. To submit an invoice to STATE, within thirty (30) calendar days of execution of this Agreement, in the amount of $150,000, which amount represents STATE's total financial obligation for all work to be performed pursuant to the terns of this Agreement. Likewise. City shall not be liable for work hereunder in excess of this funding limit except for costs caused by its own errors or omissions in the performance of the work hereunder. 9. _ To submit one (I) draft planting report within fourteen (14) calendar days of the planting of 1.264 acres of riparian habitat to STATE, for STATE's review and comment. Said report shall contain all of the information described in Exhibit C. 10. To address STATE's comments on the draft planting report and thereafter submit a final draft planting report to STATE within seven (7) calendar days of receipt of STATE's comments for STATE's review and approval, if appropriate. To submit draft monitoring reports to STATE for three (3) years (with monitoring anticipated to begin in the year 2011 and end three years later, currently anticipated to be year 2014) by October Ist of each year. Said reports shall contain all of the information described in Exhibit C. 12. To address STATE's comments on the draft monitoring report and thereafter submit a final dmti monitoring report to STATE by October Isl for three (3) years (with monitoring anticipated to begin in the year 2011 and end three (3) years later, currently anticipated to be year 2014) for . STATE's review and approval, if appropriate. 13. If at any time during the three (3) year monitoring period (with monitoring anticipated to begin in the year 2011 and end three (3) years later currently anticipated to be year 2014) it is determined by STATE that progress towards the success criteria, as described in Exhibit C and hereinafter referred to as "SUCCESS CRITERIA," is not being achieved then CITY shall implement any necessary remedial or adaptive management measures such as replanting and/or weed control. City's_ oblieatio t to implement additional remedial measures is subiect to State's providing additional funding determined to be reasonabiv necessary to implement such additional remedial measures. 14. CITY shall retain all books, documents, papers, accounting records, and other evidence pertaining to cost incurred, including support data for cost proposals, and to make such materials available at the respective offices of STATE at all reasonable times. STATE, Federal Highway Administration IRMA), or any duly authorized representative of the Federal Government shall have access to any books, records, and documents of CITY that are pertinent to this Agreement for audits, examinations, excerpts, and transactions, and copies thereof shall be furnished when requested. 4 15. City agrees to ensure the created mitigation area ;•'-��-„,o,ns,,,�'-'--ammains unduveloocd open space in perpetuity pursuant to any requirements imposed thereon by the United Stales Army Corps of Engineers, the San Diego Regional Water Quality Control Board, the California Department of Fish and Game, or other permitting agencies. 16. City Agrees to implement created MITIGATION PROJECT01i6get4on in such a manner to fulfill all compensatory mitigation required for State Project EA OE570_, San Juan Creek Bridge and Auxiliary lane at Camino Capistrano subject to the fundine limits hereunder. SECTION II STATE, AGREES: To deposit with CITY within sixty (60) calendar days of receipt of CITY's billing thereof the amount of $150,000, which amount represents STATE's total financial obligation for all work to be performed pursuant to the terms of this Agreement, provided that STATE may, at its sole discretion and pursuant to an amendment to this Agreement, authorize a greater amount. 2. To review and provide comments to CITY within ten (10) calendar days from receipt of the draft MMP. 3. Within five (5) calendar days of receipt, to review and approve, if appropriate, the draft final MMP submitted by CITY to STATE. 4. To review and provide comments to CITY within fourteen (14) calendar days from receipt of the draft planting report. 5. Within seven (7) calendar days of receipt, to review and approve, if appropriate, the draft final planting report submitted by CITY to STATE. 6. To review and provide comments to CITY by November I” on the draft monitoring reports prepared by CITY, and submitted to STATE for three (3) years (with monitoring anticipated to begin in the year 2011 and end three (3) years later, currently anticipated to be year 2014). 7. Within seven (7) calendar days of receipt, to review and approve, if appropriate, the deft final monitoring report submitted by CITY to STATE for three (3) years (with monitoring E anticipated to begin in the year 2011 and end three (3) years later, currently anticipated to be year 2014). SECTION III 1T IS MUTUALLY AGREED: All obligations of STATE under the terms of this Agreement arc subject to the appropriation of resources by the Legislature, State Budget Act authority and the allocation of funds by the California Transportation Commission (CTC). In the event that the Slate does not budget the funds necessary to implement the MITIGATION PROJECT. the CITY shall be under no obligation to Perform said work under this agreement. 2. All applicable laws, rules and policies relating to. the use of Federal or State funds shall apply, notwithstanding other provisions of this Agreement. 3. That this Agreement is not intended to, nor does it address, any remediation work which may be required if the SUCCESS CRITERIA are not achieved by October I, 2014. 4. Neither STATE nor any officer or employee thereof is responsible for any injury, damage, or liability occurring by reason of anything done or omitted to be done by CITY under or in connection with any work, authority, or jurisdiction conferred upon CITY under this Agreement. It is understood and agreed that, CITY will fully defend, indemnify, and save harmless STATE and all of its officers and employees from all claims, suits, or actions of every name, kind and description brought forth under, including, but not limited to, tortious, contractual, inverse condemnation, or other theories or assertions of liability occurring by reason of anything done or omitted to be done by CITY under this Agreement. 5. Neither CITY nor any officer or employee thereof is responsible for any injury, damage, or liability occurring by reason of anything done or omitted to be done by STATE under or in connection with any work, authority, or jurisdiction conferred upon STATE under this Agreement. It is understood and agreed that, STATE will fully defend, indemnify, and save harmless CITY and all of its officers and employees from all claims, suits, or actions of every name, kind and description brought forth under, including, but not limited to, tortious, 6 contractual, inverse condemnation, or other theories or asset l ions of liability occurring by reason of anything done or omitted to be done by STATE under this Agreement. G. In the event of any breach of this Agreement by either party, the other party may enforce this Agreement by any means available at law or in equity. In the event of litigation, mediation or arbitration to resolve any breach of, or dispute related to this Agreement, each party agrees to pay for their own attorneys' cost and expenses, without regard to who prevails 7. A failure by either party to enforce any provision of this Agreement shall not be construed as a continuing waiver, or as a waiver of the right to compel enforcement of that provision. S. This Agreement may be executed in several counterparts and all counterparts so executed shall constitute one agreement that shall be binding on all of the PARTIES notwithstanding that all of the PARTIES are not a signatory to the original or the same counterpart, If any provision of this Agreement is held invalid, the other provisions shall not be affected thereby. 9. No alteration or variation of the terms of this Agreement shall be valid unless made by a formal amendment executed by PARTIES hereto and no oral understanding or agreement not incorporated herein shall be binding on any of the PARTIES hereto. 10. This Agreement shall terminate upon STATE's written acknowledgment that MITIGATION PROJECT has met the SUCCESS CRITERIA and the final monitoring report has been approved by STATE. Acts of God. The time of Performance and/or duties or obligations of the parties hereunder shall be extended for the ncriod duringwhich performance was delaved or impeded by reason of riots. insurrections, war, fire, casualty, earthquake. acts of God, or other reasons of a like nature not the fault of the partv performing such dutv or obligation. provided that neither partv shall be required to restore anv destroved work unless additional funding is anproved for such restoration work.' 7 STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION LIM Cindy Mckim Deputy Director of Transportation CITY OF SAN JUAN CAPISTRANO By: Joe Tait, City Manager By: Jim Beil Deputy District Director Capital Projects Outlay Program APPROVED AS TO FORM & PROCEDURE:. :APPROVED AS TO FORM:,. By: By: Attorney, Department of Transportation.... Omar;Sandoval, City Attorney CERTIFIED AS TO FUNDS: ATTEST: By By: Neda Saber, Distrid-tudget Whager Maria Morris, City Clerk Department of Transpor#:ation - CERTIFIED AS TO FIPIANCIAi,.TE By: AccountingA�ninistrator.: Department of Tanspofttion AND CONDITIONS: Date: 8 EXHIBIT A Estimated Costs for labor, materials, planting, maintenance, monitoring, and reporting. Details Pending finalization of Final Draft Restoration Plan for Trabuco Creek/Caltrans Restoration Project Tasks/Materials Total Cost Materials -Plants, compost, mulch, irrigation supplies $ Initial Efforts (2010) Tasks 1.0 (Mitigation and Monitoring Plan) and 2.0 (Permitting) Labor Year 1 (20 10) Tasks 3.0 (Planting, including Planting Report), 4.0 (Maintenance), and 5.0 (Monitoring and Reporting) Labor Year 2 (2011) Tasks 4.0 and 5.0 Labor Year 3 (20 12) Tasks 4.0 and 5.0 Total $150,000 1„ EXHIBIT D San Juan Creek Watershed Map Pending. This will be developed in association with the Final Draft Restoration Plan for Trabuco Creek/Caltrans Restoration Project, the specific instrument guiding all created mitigation described in this Cooperative Agreement. EXHIBITC Scope of Work for Mitigation Project within the San Juan Creek Watershed in Orange County The following Scope of Work addresses the responsibilities and requirements of CITY in providing for the planting, maintenance, and monitoring of 1.264 acres of riparian habitat mitigation plantings within the San Juan Creek watershed, in Orange County, CA. This Scope of Work assumes a contract total of $150,000.00 which includes labor and material cost of plants, planting, maintenance, and monitoring for three (3) years. It is understood that all tasks will be performed in an appropriately timed and efficient manner. All CITY deliverables, including annual monitoring reports, shall be addressed to the following: Chris Flynn, Chief Branch C Environmental Analysis, California Department of Transportation 3347 Michelson Drive, Suite 100 Irvine, CA 92612 Task 1.0 Mitigation and Monitoring Plan CITY shall prepare and submit to STATE a Mitigation and Monitoring Plan (MMP) within sixty &� calendar days of the execution of this Agreement. This MMP will include, but is not limited to: identify the property where the work will be performed, type of species to be planted, a map delineating areas to be planted, stream bank stabilization measures to be employed as applicable, and erosion control measures to be employed as applicable. Task 2.0 Permitting CITY shall be responsible for environmental compliance and shall obtain any and all necessary permits, agreements, and/or approvals for the planting of the 1.264 acres of riparian habitat. Task 3.0 Planting Following approval of the MMP, environmental compliance, issuance of any necessary permits, agreements, and/or approvals as well as removal of invasive/exotic species, CITY shall be responsible for planting 1.264 acres of riparian habitat within the San Juan Creek watershed in Orange County, CA. Said planting of the 1.264 acres of riparian habitat shall be completed in accordance with the approved MMP as specified in Task 1.0. Task 4.0 Maintenance CITY shall perform all Maintenance tasks. Maintenance activities are scheduled to take place immediately after planting and continue for three (3) years. Maintenance is an important task in the restoration of native plant communities and includes, but is not limited to, activities such as invasive eradication, supplemental irrigation, and planting of additional plant material. Site maintenance will be conducted for three (3) years and will begin immediately after re-vegetn'tion:,is completed. The maintenance schedule will be flexible enough to maintaim",the plat ti tg areas free of invasive species and to ensure the required survival rate and growth,of'lanis and seed material. During the maintenance period, non-native invasive plants will be removed as they ;ate identified. Invasive control measures will include the following: (1) hand removal, (2) cutting or mowing, (3) and chemical herbicides where approved. Hand removal witl,be the primary method of invasive control since it is very effective in eliminating Only„ the desired plants Chemical control will be used for the highly invasive species. Any herbicide,;treatffidikwill be specified by a licensed fest Control Advisor and applied by a licensed Pest Control,;Applicator in :consultation with CITY. The use of mechanical, chemical, and hind if oval methods�rilI be used as needed and appropriate. Riparian vegetation will be.watered as: needed during -the establishment period to ensure long-term survival. CITY shall be resp6ft9tltle for obtaining any and all rights that are necessary to perform the work describe prein. Water shah; be taken tn� compliance with all state and federal laws, including any permits thlt<t:"itay regulate suclactions Replacement plants will be installed as needed to meet the performance cflf+rrta as defined---- l Blow. Task 5.0 Monit&J and Reporting Success Crlterla The ultimate goal for the mitigation project is to have 1.264 acres of established riparian habitat. The success criteria for planting are based on the goal of obtaining self-sustaining native and regionally appropriate vegetation cover. The criteria established to evaluate the success of the planting plan goals are as follows: 12 I . Greater than 75 percent relative coverage of native plants within three (3) years (proportional contribution of species cover to total vegetation cover). 2. At least three (3) native plant species established within the first three (3) years and/or natural recruitment of native species, each with at least 10% coverage. 3. At least 50 percent viability of the foliage and stems above ground. 4. Decrease non-native invasive weeds to less than 10% cover within the first three (3) years. Progress towards meeting the success criteria will be monitored anfiully at the end of the growing season (approximately September). Annual qualitative monitoring will be performed in conjunction with a long-term maintenance program. The entire site w V.-'be.:v wally inspesyte, and qualitative or subjective determinations will be made. Estimates regAfiding presence or absencd :'population sizes, population distribution, and population condition vi>ilT Q<made fog' each species planted: In addition, permanent photographic station locations will be established", to document the progress of the mitigation plantings over the course of themonitoring period: -.The locations will be chosen to 4. provide unobstructed views of the mitigation plantings and will be sufficient in number to adequately document the status of the site. Photographs .will be taken, at these-` locations on an annual basis. Monitoring will take place for three (3) years after planting and will measure the progress toward and achievement of the final,success orrt6ria. Failure to meet success c 46a will require,_ re-evaluation of the site conditions followed by remedial fimeasures suchis replanting and/or weed control. Replanting may occur dding the spring of` W (rami=§eason). If any particular species demonstrate failure -to -thrive trends (less then 50 percen "' ""'ble foliage or stems), substitution with other native species will be considered Reporting ` One (1) planting report will be submitted to STATE within thirty (30) calendar days of the planting of 1.264 acres of riparian habitat. This report will include, but is not limited to: a description of existing site conditions; a description of site preparation; a description of the planting materials used (i.e. cuttings, seedlings, seed, plugs, container size and source if not obtained from a commercial nursery); use of mulch and/or fertilizers; description of plan preparation, if necessary (i.e. how cuttings were obtained, size, treatment with rooting hormone); necessity for irrigation and/or fencing; and a summary of any planting problems and how said problems were resolved). 13 Monitoring results will be submitted to STATE annually. The report will include, at a minimum, name and title of personnel conducting monitoring, maintenance, and reporting; observation dates for monitoring activities; photo documentation; vegetation summaries; any corrective actions that were taken, and a summary and evaluation of data for the current year compared to previous years (in the second through sixth years of monitoring). The reports will specify the progress toward or achievement of the success criteria. The first annual draft monitoring report will be due on October 1 st the year following the completion of plantings with subsequent draft, reports due each October I st for the next consecutive two (2) years. If adaptive management measures become necessary.' and''Changes are made to the planted species/planting densities, these changes will be notethe annual monitoring repo If the final annual monitoring report (due October I` i l,hi-final year of monitoring currently anticipated to be the year 2014) indicates th; whole or in part, the cause of the failure wil considered adequate to meet the goals of the mitigation projirct has failed to achieve its goals, in dentified and rectified through whatever means are anon pec including consultation with STATE. 14 MEMORANDUM TO: Joe Tait, City Manager,—,-� FROM: Grant Taylor, Development Services Director 716!2010 D10 SUBJECT: Consideration of a Proposed Cooperative Agreement with the California Department of Transportation (CalTrans) Regarding Participation in the Trabuco Creek Habitat Restoration Plan RECOMMENDATION By motion, authorize the City Manager to execute the cooperative agreement with the California Department of Transportation (CalTrans) for participation in the Trabuco Creek Habitat Restoration Plan. SITUATION Caltrans has requested that the City enter into a cooperative agreement regarding habitat mitigation on City -owned property along Trabuco Creek. Caltrans has offered the City a contribution of $150,000 to fund the restoration of 1.264 acres of riparian habitat along Trabuco Creek. The City would also be responsible for monitoring the mitigation area for a period of five years to assure the establishment of native plants within the creek corridor. Caltrans has been required by the Resource Agencies to mitigate the impacts of planned freeway and ramp improvements to the 1-5 southbound (SB) hook ramps at Camino Capistrano which also require the widening of the southbound 1-5 bridge deck over San Juan Creek and San Juan Creek Road. Consequently, the proposed mitigation would allow Caltrans to proceed in a timely manner with completing those road improvements. At the April 20, 2010 meeting, the City Council initiated negotiation of the cooperative agreement and authorized staff to proceed and work with Caltrans on such an agreement. Since that time, staff has had two meeting with Caltrans staff, reviewed the Draft Agreement, and advised Caltrans of necessary revisions to the agreement. The main revisions requested by staff consist of the following; • Inclusion of a provision that caps the City's maximum financial responsibility under the agreement to the $150,00 amount that would be contributed by Caltrans. • Inclusion of a provision that the City shall not be responsible for habitat restoration improvements resulting from damage during the monitoring period resulting from "Acts of God." Agenda Report Page 2 July 6, 2010 Staff recommends that the City Council authorize the City Manager to execute the cooperative agreement with the California Department of Transportation (CalTrans) for participation in the Trabuco Creek Habitat Restoration Plan.. FINANCIAL CONSIDERATIONS The cost of habitat restoration would be fully funded by the $150,000 Caltrans contribution. Staff -recommended provisions to the agreement would cap the City's responsibility at that amount. The City Council has previously allocated up to a maximum of $500,000 of Measure Y bond proceeds for habitat restoration work as a 25% match based on Measure M grant guidelines. The City has also committed to provide a 50% ($100,000) match to qualify for the Habitat Conservation Fund Program grant. PUBLIC NOTIFICATION Public notification is provided through posting of the meeting agenda. RECOMMENDATION By motion, authorize the City Manager to execute the cooperative agreement with the California Department of Transportation (CalTrans) for participation in the Trabuco Creek Habitat Restoration Plan. Respectfully submitted, Prepared by: Grant Taylor William A. Ramsey, AICP Development Services Director Principal Planner Attachment: Draft Caltrans Cooperative Agreement 12—ORA-5 PM 8.58-9.35 San Juan Creek Bridge Mitigation — San Juan Creek Watershed EA No. 12-OE5700 District Agreement No. 12.0622 COOPERATIVE AGREEMENT THIS AGREEMENT, ENTERED INTO EFFECTIVE ON , 2010, is between the STATE OF CALIFORNIA, acting by and through its Department of Transportation, hereinafter referred to as "STATE". and the CITY OF SAN JUAN CAPISTRANO. a body politic and a municipal corporation of the State of California, referred to herein as "CITY." ATTACHMENT RECITALS 1. STATE and CITY, hereinafter referred to as "PARTIES", pursuant to Streets and Highways Code sections 114 and/or 130, are authorized to enter into this Agreement. 2. STATE is implementing a bridge widening project on the San Juan Creek within the City of San Juan Capistrano, hereinafter referred to as "PROJECT." PROJECT implementation will result in the permanent discharge to 0.031 acres and temporary discharges to 0.832 acres (including 0.122 acres of permanent shading) of un -vegetated waters of the United States and waters of the State, hereinafter referred to as "IMPACTS." 3. STATE, in order to comply with the terms of the approved environmental document (ED) for PROJECT, is reauiredietends to mitigate for IMPACTS by creating a minimum of 1.264 acres of riparian habitat planted within the San Juan Creek watershed in Orange County, CA, hereinafter referred to as "MITIGATION PROJECT." 4. STATE has determined that the estimated cost of satisfying MITIGATION PROJECT is $150,000 and will be paid for from the phase 4 allocation of the PROJECT as described in Exhibit A, attached hereto and made a part of this Agreement. 5. Said MITIGATION PROJECT will occur within the San Juan Creek watershed in San Juan Capistrano. CA. hereinafter referred to as 'PROPERTY," and more particularly described in Exhibit B, attached hereto and made a part of this Agreement. 6. STATE intends to enter into this agreement to have CITY implement MITIGATION PROJECT on PROPERTY, as described in the Scope of Work, attached hereto as Exhibit C and made a part of this Agreement. 7. PARTIES now define herein below the terms and conditions under which this Agreement will be implemented. 2 SECTION I CITY AGREES: All work performed by CITY or performed on CITY's behalf, to implement MITIGATION PROJECT, shall be performed in accordance with all applicable state and federal laws, regulations, policies, procedures, and standards. 2. To obtain any and all environmental approvals and/or resource agency agreements, approvals, and/or permits required prior to implementation of MITIGATION PROJECT and to fully comply with any terms and conditions thereof. 3. To obtain any and all necessary PROPERTY rights and/or rights of entry required prior to the implementation of MITIGATION PROJECT and to fully comply with any terms and conditions thereof. Said rights of entry shall also include rights for STATE personnel to enter PROPERTY. 4. To submit a draft Mitigation and Monitoring Plan (MMP) to STATE within sixt 60 (30) calendar days of execution of this Agreement for STATE's review and comment. The draft MMP shall address the requirements set forth in Exhibit C. 5. To address STATE's comments on the draft MMP and thereafter submit a final draft MMP to STATE within three (5) calendar days of receipt of STATE's comments on the draft MMP for STATE's review and approval, if appropriate. CITY shall provide STATE a copy of the final approved MMP. 6. To implement MITIGATION PROJECT, including all of the requirements and/or conditions set forth in Exhibit C. 7. To use one hundred percent (100%) of STATE's funds provided pursuant to this Agreement, in order to satisfy CITY's obligation and responsibilities set forth in this Agreement. B. To submit an invoice to STATE, within thirty (30) calendar days of execution of this Agreement, in the amount of $150,000, which amount represents STATE's total financial obligation for all work to be performed pursuant to the terms of this Agreement. Likewise City shall not be liable for work hereunder in excess of this funding limit excent for costs 3 caused by its own errors or omissions in the performance of the work hereunder. 9. To submit one (1) draft planting report within fourteen (14) calendar days of the planting of 1.264 acres of riparian habitat to STATE, for STATE's review and comment. Said report shall contain all of the information described in Exhibit C. 10. To address STATE's comments on the draft planting report and thereafter submit a final draft planting report to STATE within seven (7) calendar days of receipt of STATE's comments for STATE's review and approval, if appropriate. H. To submit draft monitoring reports to STATE for three (3) years (with monitoring anticipated to begin in the year 2011 and end three years later, currently anticipated to be year 2014) by October 1st of each year. Said reports shall contain all of the information described in Exhibit C. 12. To address STATE's comments on the draft monitoring report and thereafter submit a final draft monitoring report to STATE by October Ist for three (3) years (with monitoring anticipated to begin in the year 2011 and end three (3) years later, currently anticipated to be year 2014) for . STATE's review and approval, if appropriate. 13. If at any time during the three (3) year monitoring period (with monitoring anticipated to begin in the year 2011 and end three; (3) years later currently anticipated to be year 2014) it is determined by STATE that progress towards the success criteria, as described in Exhibit C and hereinafter referred to as "SUCCESS CRITERIA," is not being achieved then CITY shall implement any necessary remedial or adaptive management measures such as replanting and/or weed control. City's obligation to implement additional remedial measures is Subject to State's Providing additional funding determined to be reasonably necessary to implement such additional remedial measures. 14. CITY shall retain all books, documents, papers, accounting records, and other evidence pertaining to cost incurred, including support data for cost proposals, and to make such materials available at the respective offices of STATE at all reasonable times. STATE, Federal Highway Administration (FHWA), or any duly authorized representative of the Federal Government shall have access to any books, records, and documents of CITY that are pertinent to this Agreement for audits, examinations, excerpts, and transactions, and copies thereof shall be furnished when requested. 4 15. City agrees to ensure the created mitigation area is main ainedremams undeveloped open space in perpetuity pursuant to any requirements imposed thereon by the United States Army Corps of Engineers, the San Diego Regional Water Quality Control Board, the California Department of Fish and Game, or other permitting agencies. 16. City Agrees to implement created MITIGATION PROJECTmit'o-°-•ian in such a manner to fulfill all compensatory mitigation required for State Project EA OE570_, San Juan Creek Bridge and Auxiliary lane at Camino Capistrano subiect to the funding limits hereunder. SECTION It STATE AGREES: To deposit with CITY within sixty (60) calendar days of receipt of CITY's billing thereof the amount of $150,000, which amount represents STATE's total Financial obligation for all work to be performed pursuant to the terms of this Agreement, provided that STATE may, at its sole discretion and pursuant to an amendment to this Agreement, authorise a greater amount. 2. To review and provide comments to CITY within ten (10) calendar days from receipt of the draft MMP. 3. Within five (5) calendar days of receipt, to review and approve, if appropriate, the draft final MMP submitted by CITY to STATE. 4. To review and provide comments to CITY within fourteen (14) calendar days from receipt of the draft planting report. 5. Within seven (7) calendar days of receipt, to review and approve, if appropriate, the draft final planting report submitted by CITY to STATE. 6. To review and provide comments to CITY by November I" on the draft monitoring reports prepared by CITY, and submitted to STATE for three (3) years (with monitoring anticipated to begin in the year 2011 and end three (3) years later, currently anticipated to be year 2014). 7. Within seven (7) calendar days of receipt, to review and approve, if appropriate, the draft final monitoring report submitted by CITY to STATE for three (3) years (with monitoring 5 anticipated to begin in the year 2011 and end three (3) years later, currently anticipated to be year 2014). SECTION III IT IS MUTUALLY AGREED: All obligations of STATE under the terms of this Agreement are subject to the appropriation of resources by the Legislature, State Budget Act authority and the allocation of funds by the California Transportation Commission (CTC). In the event that the State does not budget the funds necessary to implement the MITIGATION PROJECT the CITY shall be under no obligation to perform said evrk under this agreement. 2. All applicable laws, rules and policies relating to the use of Federal or Sfite funds shall apply, notwithstanding other provisions of this Agreement. 3. That this Agreement is not intended to, nor does it address, any remediation work which may be required if the SUCCESS CRITERIA are not achieved by October 1, 2014. 4. Neither STATE nor any officer or employee thereof is responsible for any injury, damage, or liability occurring by reason of anything done or omitted to be done by CITY under or in connection with any work, authority, or jurisdiction conferred upon CITY under this Agreement. It is understood and agreed that, CITY will fully defend, indemnify, and save harmless STATE and all of its officers and employees from all claims, suits, or actions of every name, kind and description brought forth under, including, but not limited to, tortious, contractual, inverse condemnation, or other theories or assertions of liability occurring by reason of anything clone or omitted to be done by CITY under this Agreement. 5. Neither CITY nor any officer or employee thereof is responsible for any injury, damage, or liability occurring by reason of anything done or omitted to be done by STATE under or in connection with any work, authority, or jurisdiction conferred upon STATE under this Agreement. It is understood and agreed that, STATE will fully defend, indemnify, and save harmless CITY and all of its officers and employees from all claims, suits, or actions of every name, kind and description brought forth under, including, but not limited to, tortious, 3 contractual, inverse condemnation, or other theories or assel I ions of liability occurring by reason of anything done or omitted to be done by STATE under this Agreement. 6. In the event of any breach of this Agreement by either party, the other party may enforce this Agreement by any means available at law or in equity. In the event of litigation, mediation or arbitration to resolve any breach of, or dispute related to this Agreement, each party agrees to pay for their own attorneys' cost and expenses, without regard to who prevails 7. A failure by either party to enforce any provision of this Agreement shall not be construed as a continuing waiver, oras a waiver of the right to compel enforcement of that provision. S. This Agreement may be executed in several counterparts and all counterparts so executed shall constitute one agreement that shall be binding on all of the PARTIES notwithstanding that all of the PARTIES are nota signatory to me original or the same counterpart. If any provision of this Agreement is held invalid, the other provisions shall not be affected thereby. 9. No alteration or variation of the terms of this Agreement shall be valid unless made by a formal amendment executed by PARTIES hereto and no oral understanding or agreement not incorporated herein shall be binding on any of the PARTIES hereto. 10. This Agreement shall terminate upon STATE's written acknowledgment that MITIGATION PROJECT has met the SUCCESS CRITERIA and the final monitoring report has been approved by STATE. 11. Acts of God. The time of performance and/or duties or obligations of the parties hereunder shall be extended for the period during which performance was delayed or impeded by reason of riots. insurrections. war, Fire, casualty, earthquake. acts of God, or other reasons ora like nature not the fault of the party performing such date or obligation provided that neither parte shall be required to restore any destroyed work unless additional fundinL, is approved for such restoration work." 7 STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION By: a CITY OF SAN JUAN CAPISTRANO Cindy Mckim Joe Tait, City Manager Deputy Director of Transportation Jim Bell Deputy District Director Capital Projects Outlay Program APPROVED AS TO FORM & PROCEDURE: By: Attorney, Department of Transportation CERTIFIED AS TO FUNDS: APPROVED AS TO FOR - By: Omar Sandoval, City Attorney ATTEST: Neda Saber, District Budget Manager Maria Morris, City Clerk Department of Transportation CERTIFIED AS TO FINANCIAL TERMS AND CONDITIONS: 0 Accounting Administrator Department of Transportation Date: 8 EXHIBIT A Estimated Costs for labor, materials, planting, maintenance, monitoring, and reporting. Details Pending finalization of Final Draft Restoration Plan for Trabuco Creek/Caltrans Restoration Project TaskvMaterials Total Cost Materials -Plants, compost, mulch, irrigation supplies $ Initial Efforts (2010) Tasks 1.0 (Mitigation and Monitoring Plan) and 2.0 (Permitting) Labor Year 1 (20 10) Tasks 3.0 (Planting, including Planting Report), 4.0 (Maintenance), and 5.0 (Monitoring and Reporting) Labor Year 2 (2011) Tasks 4.0 and 5.0 Labor Year 3 (20 12) Tasks 4.0 and 5.0 Total $150,000 EXHIBIT B San Juan Creek Watershed Map Pending. This will be developed in association with the Final Draft Restoration Plan for Trabuco Creek/Caltrans Restoration Project, the specific instrument guiding all created mitigation described in this Cooperative Agreement. to EXHIBITC Scope of Work for Mitigation Project within the San Juan Creek Watershed in Orange County The following Scope of Work addresses the responsibilities and requirements of CITY in providing for the planting, maintenance, and monitoring of 1.264 acres of riparian habitat mitigation plantings within the San Juan Creek watershed, in Orange County, CA. This Scope of Work assumes a contract total of $150,000.00 which includes labor and material cost of plants, planting, maintenance, and monitoring for three (3) years. It is understood that all tasks will be performed in an appropriately timed and efficient manner. All CITY deliverables, including annual monitoring reports, shall be addressed to the following: Chris Flynn, Chief Branch C. Environmental Analysis, California Department of'I'ransportation 3347 Michelson Drive, Suite 100 ' Irvine, CA 92612 Task 1.0 Mitigation and Monitoring Plan _ CITY shall prepare and submit to STATE a Mitigation and Monitoring Plan (MMP) within sixty (60)thin(30) calendar days of the execution of this Agreement. This MMP will include, but is not limited to: identify the property where the work will be performed, type of species to be planted, a map delineating areas to be planted, stream bank stabilization measures to be employed as applicable, and erosion control measures to be employed as applicable. Task 2.0 Permitting CITY shall be responsible for environmental compliance and shall obtain any and all necessary permits, agreements, and/or approvals for the planting of the 1.264 acres of riparian habitat. Task3.0 Planting Following approval of the MMP, environmental compliance, issuance of any necessary permits, agreements, and/or approvals as well as removal of invasive/exotic species, CITY shall be responsible for planting 1.264 acres of riparian habitat within the San Juan Creek watershed in Orange County, CA. Said planting of the 1.264 acres of riparian habitat shall be completed in accordance with the approved MMP as specified in Task 1.0. Il Task 4.0 Maintenance CITY shall perform all Maintenance tasks. Maintenance activities are scheduled to take place immediately after planting and continue for three (3) years. Maintenance is an important task in the restoration of native plant communities and includes, but is not limited to, activities such as invasive eradication, supplemental irrigation, and planting of additional plant material. Site maintenance will be conducted for three (3) years and will begin immediately after re-vegetationis completed. The maintenance schedule will be flexible enough to maintain the planting areas free of invasive species and to ensure the required survival rate and growth of plants and seed material. During the maintenance period, non-native invasiy6kolants will be removed as they are identified. Invasive control measures will include the following: (I) hand removal, (2) cutting or mowing, (3) and chemical herbicides where approved. Hand removal will be the primary method of invasive control since it is very effective in eliminating only the desired plants. Chemical control will be used for the highly invasive species. Any herbicide treatment will be specified by a licensed Pest Control Advisor and applied by a licensed Pest Control Applicator in consultation with CITY. The use of mechanical, chemical, and hand removal methods will be used as needed and appropriate. Riparian vegetation will be watered as needed during the establishment period to ensure long-term survival. CITY shall be responsible for obtaining any and all rights that are necessary to perform the work described herein. Water shall be taken in compliance with all state and federal laws, including any permits that may regulate such actions. Replacement plants will be installed as needed to meet the performance criteria as defined below. Task 5.0 Monitoring and Reporting Success Criteria The ultimate goal for the mitigation project is to have 1.264 acres of established riparian habitat. The success criteria for planting are based on the goal of obtaining self-sustaining native and regionally appropriate vegetation cover. The criteria established to evaluate the success of the planting plan goals are as follows: 12 I. Greater than 75 percent relative coverage of native plants within three (3) years (proportional contribution of species cover to total vegetation cover). 2. At least three (3) native plant species established within the first three (3) years and/or natural recruitment of native species, each with at least 10% coverage. 3. At least 50 percent viability of the foliage and stems above ground. 4. Decrease non-native invasive weeds to less than l0% cover within the first three (3) years. Progress towards meeting the success criteria will be monitored annually at the end of the growing season (approximately September). Annual qualitative monitoring will be performed in conjunction with a long-term maintenance program. The entire site will be visually inspected and qualitative or subjective determinations will be made. Estimates regarding presence or absence, population sizes, population distribution, and population condition will be made for each species planted. In addition, permanent photographic station locations will be established to document the progress of the mitigation plantings over the course of the monitoring period. The locations will be chosen to provide unobstructed views of the mitigation plantings and will be sufficient in number to adequately document the status of the site. Photographs will be taken at these locations on an annual basis. Monitoring will take place for three (3) years after planting and will measure the progress toward and achievement of the final success criteria. .. Failure to meet success criteria will require re-evaluation of the site conditions followed by remedial or adaptive management measures such as replanting and/or weed control. Replanting may occur during the spring or fall (rainy season). If any particular species demonstrate failure -to -thrive trends (less then 50 percent viable foliage or stems), substitution with other native species will be considered appropriate. Reporting One (1) planting report will be submitted to STATE within thirty (30) calendar days of the planting of 1.264 acres of riparian habitat. This report will include, but is not limited to: a description of existing site conditions; a description of site preparation; a description of the planting materials used (i.e. cuttings, seedlings, seed, plugs, container size and source if not obtained from a commercial nursery); use of mulch and/or fertilizers; description of plan preparation, if necessary (i.e. how cuttings were obtained, size, treatment with rooting hormone); necessity for irrigation and/or fencing; and a summary of any planting problems and how said problems were resolved). 13 Monitoring results will be submitted to STATE annually. The report will include, at a minimum, name and title of personnel conducting monitoring, maintenance, and reporting; observation dates for monitoring activities; photo documentation; vegetation summaries; any corrective actions that were taken, and a summary and evaluation of data for the current year compared to previous years (in the second through sixth years of monitoring). The reports will specify the progress toward or achievement of the success criteria. The first annual draft monitoring report will be due on October 1st the year following the completion of plantings with subsequent draft reports due each October I st for the next consecutive two (2) years. If adaptive management measures become necessary and changes are made to the planted species/planting densities, these changes will be noted in the annual monitoring report. If the final annual monitoring report (due October 1" in the final year of monitoring currently anticipated to be the year 2014) indicates that the mitigation project has failed to achieve its goals, in whole or in part, the cause of the failure will be identified and rectified through whatever means are considered adequate to meet the goals of the mitigation project, including consultation with STATE. 14 4/20/2010 nneMoRaNDunn D13 TO: Joe Tait, City Manage &r FROM: Steven Apple, AICP, Community Development Director SUBJECT: Consideration to Initiate Consultation with California Department of Transportation (CalTrans) Regarding a Potential Cooperative Agreement for Participation in the Trabuco Creek Habitat Restoration Plan RECOMMENDATION By motion, authorize staff to consult with the California Department of Transportation (CalTrans) on the terms of a potential cooperative agreement for participation in the Trabuco Creek Habitat Restoration Plan. SITUATION Caltrans has requested that the City negotiate and enter into a cooperative agreement regarding habitat mitigation along Trabuco Creek. Caltrans latest proposal to the City includes a Caltrans contribution of $150,000 (up from an initial $60,000 offer) to fund the restoration of 1.264 acres of riparian habitat along Trabuco Creek. The City would also be responsible for monitoring the mitigation area for a period of five years to assure the establishment of native plants within the creek corridor. In November 2009, the City submitted a Habitat Conservation Fund grant to the State of California for a 7 acre portion of Trabuco Creek through the "2C Ranch" property (former Shea property).The State's Habitat Conservation Fund (HCF) Program allocates approximately $2 million per year to the California Department of Parks and Recreation for grants to cities, counties, and districts to provide for nature interpretation and other non - capital outlay programs which bring urban residents into park and wildlife areas, and to protect fish, wildlife and native plant resources, to acquire or develop wildlife corridors and trails. The HCF Program sunsets in FY 2019/2020. The City's grant application included a total budget of $200,000 with the- State providing $100,000 and the City providing a $100,000 match through a combination of in-kind services and funds. The Habitat Conservation Fund Program encourages applicants to develop partnerships or cooperative agreements with such entities as federal, state, and local parks, non-profit organizations, local business groups, and schools, to maximize project opportunities and funding strategies. The Caltrans proposal has potential merit in terms of providing an additional funding source that could enhance the City's restoration effort along Trabuco Creek. However, the City needs to'be assured that Caltrans proposal does not result in additional costs to the City, above and beyond what the City has already committed, that would essentially subsidize Caltrans and their permit requirement. Staff would need to Agenda Report Page 2 April 20. 2010 negotiate the specific provisions of a cooperative agreement with Caltrans before determining whether such an agreement would be beneficial to the City. Staff recommends that the City Council authorize staff to negotiate the specific provisions of a cooperative agreement with Caltrans, and assuming that reasonable and appropriate provisions can be negotiated that protect the City's interests, thatthe proposed cooperative agreement then be agendized for City Council review and action at a future meeting following the conclusion of successful negotiations. FINANCIAL CONSIDERATIONS The City Council has previously allocated up to a maximum of $500,000 of Measure Y bond proceeds for habitat restoration work as a 25% match based on Measure M grant guidelines. The City has also committed to provide a 50% ($100,000) match to qualify for the Habitat Conservation Fund Program grant. PUBLIC NOTIFICATION Public notification is provided through posting of the meeting agenda. By motion, authorize staff to consult with the California Department of Transportation (CalTrans) on the terms of a potential cooperative agreement for participation in the Trabuco Creek Habitat Restoration Plan. Respectfully submitte d, Steven A. Apple� Community Development Director Prepared by: �� s�A1CP Principal Planner Attachment: Caltrans April 15, 2010 Offer Letter to City of San Juan Capistrano through Derek Ostensen & Associates. DEPARTMENT OF TRANSPORTATION 3347 MICHELSON DRIVE, SUITE 100 IRVINE, CA 92612-8894 PHONE (949) 279-8715 FAX (949) 724-2141 TTY 711 April 15, 2010 Mr. Derek Ostensen Conservation Consultant Derek Ostensen and Associates Dear Mr.Ostensen: 4<' Flex pier powerl Be energy eficlend Please forward the following information to your contacts with the City of San Juan Capistrano. We know that you have been working very closely to help initiate the Northwest Open Space Restoration Project with the City of San Juan Capistrano, Caltrans beleives this would align with our mitigation needs for the 1-5/Camino Capistrano Interchange Improvements Project. The following items summarize what Caltrans can commit to and what commitments are needed for this project to commence. Caltrans has allocated $150,000 of mitigation funds for related project impacts to waters of the U.S. and waters of the State. This money would be transferred from Caltrans to the City of San Juan Capistrano once a Cooperative Agreement is executed. The San Diego Regional Water Quality Control Board has stipulated that 1.264 acres of restoration is required to offset these impacts. We would need the Cooperate Agreement to solidify the following general roles and responsibilities. Our hope is that through the Northwest Open Space Restoration Project, the City will plan and implement restoration of 1.264 acres of riparian habitat in Trabuco Creek. The City would be responsible for coordinating the restoration and monitoring its success according to performance standards noted in the Cooperative Agreement. Caltrans would receive credit for the 1.264 acres of the City's restoration, per its funding of that portion of the project. Removal of non-native arundo, tamarisk, pampas grass and other invasive species within the 1.264 acre area must begin by August 2010, concurrent with the I-5/Camino Capistrano Interchange Improvements Project near San Juan Creek. Removal will be conducted by appropriate methods, including hand tool removal and environmentally safe, permitted herbicide, as needed. The City will develop a restoration plan for native plant revegetation (riparian plant species) of the 1.264 acre site and will begin revegetation (plant installation) by April 2011. We have requested that both the San Diego Regional Water Quality Control Board and the California Department of Fish and Game review the City's Restoration plan and approve this option as our mitigation for the above project. We feel that with a firm commitment from the City our chance of approval from the regulatory agencies will greatly increase. "Caltrans improves mobility across California" ATTACHMENT 1 Mr. Ostensen April 15, 2010 Page 2 We would like to request a commitment in writing that the City would be willing to accept the $150,000 and in return obligate them to meeting the above stated commitments. Once we have this firm commitment and approval from the above referenced agencies we would like to immediately move forward with the Cooperative Agreement process. Timing is absolutely crucial as this can be a timely process for both of our agencies. Thank you in advance for your time and expedition of this partnership. Sincerely, Chris Flynn Branch C Chief Environmental Analysis — District 12 C: Lesley L. Hill, Associate Environmental Planner, Natural Sciences "Caltrans Improves mobility across California" Today's Date: -0 Transmittal(Chec k All That Apply) City Attorney ` City Manager 1 City Clerk CONTRACT TRANSMITTAL CIP No. (if any): N Project Manager's Last Name JA yJ4 Phone Extension: Council or CRA Meeting Date (if applicable): APPROVING AUTHORITY: (Check One) ❑ Mayor #Z- ❑ CRA Chair /G/I►�-I_,llt ~(J I L City Manager Ftpalrty, jj��/,�y'l/.�y���«>� J Provide 1 executed original contract for each scludin th�t . If the a reement is to be O 9� 9 Y 9 recorded – only (1) original will be recorded with certified copies going o other part' s. 5120 J N _t Please provide the mailing address of any party to receive an agreement – unless the mailing address is included within the body of the agreement: OTHER INSTRUCTIONS: Cal -fres to dJ t'4" ovIa0s. �`1 se(Tf ttio -f &a ve ` o cvo eo . W1,41 T M410 Form Dale: 01-2004 D-7 Christy Jakl From: Ayako Rauterkus Sent: Wednesday, September 22, 2010 9:39 AM To: Maria Morris Cc: Christy Jakl; Steven Apple; Bill Ramsey Subject: FW: Habitat restoration for cooperative agreement with Caltrans approved 5-0 by City Council tonight Hi Maria, I apologize for not providing you more information/instructions from Caltrans. Caltrans needs 4 originals so they provided 5 copies for the City to sign. They requested not to fill the "DATE" on the agreements. After the City's signatures, please forward them to the following: Cindy Ngo Cooperative Agreements Branch District 12, Division of Design 3347 Michelson Drive, Suite 100 Irvine, CA 92612-8894 (Her phone number is 949.724.2785) Caltrans will forward the fully executed copy to the City after their signature. Thank you, Ayako Rauterkus Development Services Department arauterkus@sanivancapistrano.ore 32400 Paseo Adelanto San Juan Capistrano, CA 92675 949.443.6325 Fax: 949.661.5451 From: Steven Apple Sent: Tuesday, September 21, 2010 8:53 PM To: Derek Ostensen; Bill Ramsey; Ayako Rauterkus Subject: Habitat restoration for cooperative agreement with Caltrans approved 5-0 by City Council tonight Ayako and Bill will coordinate contracts signatures - onward! Steve Apple