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Agenda Item 19.
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| City Council Meeting |
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| Subject: |
| Mitigation Agreement Between Puente Hills Habitat Preservation Authority and City; Mitigation Endowment Fund and Mitigation Easement Endowment Fund Agreements Between The San Diego Foundation and City for the SR 57 Freeway & Lambert Road Interchange Improvements (CIP 7251) |
| RECOMMENDATION |
- Approve the Mitigation Agreement with Puente Hills Habitat Preservation Authority;
- Approve the Fund Agreement for the Brea 57 Lambert Mitigation Endowment Fund with The San Diego Foundation; and
- Approve the Fund Agreement for the Brea 57 Lambert Easement Endowment Fund with The San Diego Foundation
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| BACKGROUND/DISCUSSION |
The SR 57 Freeway & Lambert Road Interchange Improvements Project (CIP 7251) (“Project”) has been a high priority project for the City and Caltrans for the past decade. The Project will add a northbound loop on-ramp with new bridge and realign the northbound off-ramp; widen the southbound ramps and bridge over the City’s Tracks at Brea Segment 4 Trail (prior railroad right-of-way); widen Lambert Road from west State College; convert the southbound exit ramp to a two (2) lane exit; and, provide a dedicated right turn lane on Lambert Road onto the northbound on-ramp.
On November 12, 2015, the California Environmental Quality Act (“CEQA”) Mitigated Negative Declaration (“MND”) and National Environmental Protection Act “(NEPA”) Environmental Assessment with Finding of No Significant Impact Documents (“EA/FONSI”) were approved and adopted by the California Department of Transportation (“Caltrans”) (Document No: SCH 2015031005). One of the Project impacts that was identified within these documents related to the southbound off-ramp shoulder widening and retaining wall improvements, which would result in 0.15 acres of permanent and 1.4 acres of temporary disturbance within the sensitive habitat area designated as suitable for the Gnatcatcher. Therefore, in order to mitigate this Project impact and pursuant to Section 7 of the Endangered Species Act of 1973 (“Act”), Caltrans consulted with the United States Fish and Wildlife Services (“USFWS”) in June of 2015 prior to the adoption of the MND/EA/FONSI document to define the mitigation requirements. On October 8, 2015, the USFWS provided the mitigation requirements for this impact, which called for, as well as other mitigation items, the restoration of 1.5 acres of coastal sage scrub habitat within a designated Gnatcatcher critical habitat at Puente Hills, through the Puente Hills Habitat Preservation Authority (“Authority”), or another location approved by USFWS. The obligation to complete the restoration mitigation work was placed on the Project proponents, which is the City and Caltrans. City has the responsibility to fund and secure the necessary off-site mitigation work for the Project, whereas Caltrans is the responsible party to address all on-site Project mitigation measures as identified in the USFWS Section 7 consultation and Adopted MND/EA/FONSI documents.
In June of 2018, the Project Plans, Specifications, and Estimates (“PS&E”) documents were considered substantially complete and ready for final approvals. During this time, Caltrans and the City design team identified additional impacts from the proposed improvements to the sensitive habitat areas along the southbound off-ramp area, which would require further mitigation measures. Therefore, pursuant to Caltrans and CEQA/NEPA requirements, an environmental revalidation document was prepared. Additionally, as part of the revalidation process, Caltrans consulted with the USFWS pursuant to the Act to amend the June 2015 Section 7 consultation document. The CEQA/NEPA revalidation document was approved on July 28, 2018, which included the amended informal Section 7 consultation document from the USFWS, dated July 2, 2018. The amended Section 7 consultation document revised the permanent and temporary disturbance numbers from the 2015 document to 0.51 and 1.03 acres respectively, with the mitigation requirements to restore and conserve 2.1 acres of coastal sage scrub habitat within an approved designated Gnatcatcher critical habitat area.
On July 28, 2018, the Public Works Department initiated the development of a habitat restoration and conservation plan for the 2.1 acres with the Authority with an initial deposit of $5,000. Based on the In-Lieu Mitigation Guidelines from the Authority, the City and Authority would enter into a Mitigation Agreement to complete a Habitat Restoration Plan (“HRP”) and a Long Term Management Plan (“LTMP”) in accordance with the USFWS requirements. Additionally, the Authority would record a conservation easement for the 2.1 acres within the Puente Hills property in favor of the Watershed Conservation Authority (“WCA”), a joint exercise of powers entity as established pursuant to Cal Gov.Code § 6500 et seq, who would be responsible to monitor the easement area with USFWS as a third party beneficiary.
Furthermore, as part of the USFWS Section 7 consultation requirements, the City would be required to establish a non-wasting endowment fund to assure sufficient funds for perpetual management, maintenance, and monitoring of the 2.1 acre restoration. Based on this requirement, City staff reached out to the Authority to obtain the appropriate costs for the endowment amount associated with the LTMP and associated non-profit charitable foundation to hold the funds for investment and distribution to the Authority for the work. The Authority recommended using The San Diego Foundation (“TSDF”), a CA charitable corporation, as the endowment fund holder based on their prior working relationship. TSDF was also recommended as the endowment holder for the conservation easement, which will be used to fund the monitoring of the easement area by WCA.
On November 5, 2018, Caltrans advertised the Project for bids and on February 14, 2019, the bids were opened. Soon thereafter, the Authority provided the Draft Mitigation Agreement to the City staff for review. Additionally, TSDF provided the Draft Brea 57-Lambert Long-Term Mitigation Endowment Fund Agreement and Draft Brea 57-Lambert Easement Endowment Fund Agreement, which were also incorporated into the Authority’s Mitigation Agreement as Exhibit’s D and F. Collectively, the three Agreements were submitted to the City Attorney’s office for review and comment, which were addressed by the Authority and TSDF in the final Agreements. Therefore, the final Agreements are being presented to the City Council with a recommendation to proceed with the approval of said Agreements (see Attachments A, B, and C). |
| COMMISSION/COMMITTEE RECOMMENDATION |
| The Finance Committee reviewed staff’s recommendation at their May 28, 2019 meeting and recommended to proceed. |
| FISCAL IMPACT/SUMMARY |
In June of 2018, the Orange County Transportation Authority (“OCTA”) approved the City’s request for Measure M2 CTFP Grant Funding for Project construction in the amount of $12,398,178 (Grant 18-BREA-FST-3895). At the time of the October 2017 application, the Project was split into four phases due to the uncertainties of the overall Project funding. Therefore, the original application and funding was programmed for Phase 1 of the four phased Project. However, based on the successful efforts by Caltrans, OCTA, and City, the full Project funding was approved in May of 2018, by the California Transportation Commission. In March 2019, as part of the OCTA grant program Semi-Annual Review (“SAR”) process, the City requested to re-scope the Grant Funding to be included in the overall Project scope. OCTA Staff accepted this March SAR request, which includes the Mitigation funds in the amount of $2,500,000. This scope change is anticipated to be approved by the OCTA Board at its June 3, 2019 meeting. Therefore, there is no impact to the General Fund.
The following table provides the costs and funding associated with the Mitigation Agreement, Brea 57 Lambert Long-Term Mitigation Endowment Fund Agreement, and Brea 57 Lambert Easement Endowment Fund Agreement:
| Expenditure Item |
Expense
Amount |
Funding (OCTA M2 Grant)
Amount |
| Authority Mitigation Agreement |
$743,358 |
$743,358 |
| TSDF Brea 57-Lambert Long-Term Mitigation Endowment Fund Agreement |
$472,000
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$472,000
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| TSDF Brea 57-Lambert Easement Endowment Fund Agreement |
$41,500
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$41,500
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| TOTALS |
$1,256,858 |
$1,256,858 |
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| TOTAL M2 FUNDING (Grant 3895) |
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$2,500,000 |
| REMAINING M2 GRANT FUNDING |
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$1,243,142 |
Based on the grant funding and mitigation expenses as shown in the table above, there will be $1,243,142 remaining in the M2 Grant funds that could be re-allocated to fund other eligible costs for construction. Additionally, City staff has requested to re-allocate the M2 portion of the utility relocation funds from the Right-of-Way Grant (Grant 16-BREA-FST-3802) to this Grant, which will also be presented to the OCTA Board in June.
The City is the responsible party to address the off-site mitigation measures with respect to restoring the 2.1 acres of sage brush critical habitat for the Gnatcatcher pursuant to the USFWS Section 7 consultation requirements. The Authority and TSDF have been accepted by the USFWS as the appropriate entities to complete the required restoration work and endowment funding. In order to proceed with the required mitigation work, the City is required to enter into the Authority’s Mitigation Agreement and the two TSDF Endowment Fund Agreements. The Agreements have been reviewed by City staff and the City Attorney’s office. Therefore, at this time, Staff is recommending approval by the City Council to proceed with the Mitigation Agreement, Brea 57 Lambert Long-Term Mitigation Endowment Fund Agreement, and Brea 57 Lambert Easement Endowment Fund Agreement. |
| RESPECTFULLY SUBMITTED: |
William Gallardo, City Manager
Prepared by: Michael S. Ho, P.E., Deputy Director of Public Works / City Engineer
Concurrence: Tony Olmos, P.E., Director of Public Works |
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