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Home My WebLink About7/25/2007 - STAFF REPORTS - 2.J. P A LM S.. �2 c+ x"c P . .IF I F°""X City Council Staff Report JUL.Y 25, 2007 CONSENT CALENDAR Subject: APPROVAL OF A MITIGATION AGREEMENT WITH CALTRANS AND CVAG FOR THE INDIAN AVENUE INTERCHANGE From: David H. Ready, City Manager Initiated by: Public Works and Engineering Department SUMMARY The environmental phase for the Indian Avenue Interchange (City Project No. 00-14) has been completed, and CEQA/NEPA clearance has been obtained. One of the environmental requirements for this project is the acquisition of conservation lands to offset impacts to the environment due to construction of the project. The Mitigation Agreement is a standard form agreement used by Caltrans to identify conservation lands acquired and set aside as environmental mitigation for a project. RECOMMENDATION: 1) Adopt Minute Order No. , approving a Mitigation Agreement between the State of California, acting by and through its Department of Transportation (Caltrans), the Coachella Valley Association of Governments (CVAG), and the City of Palm Springs, related to the Indian Avenue Interchange and associated arterials; and 2) Authorize the City Manager to execute all necessary documents. STAFF ANALYSIS: As a result of the environmental analysis of impacts associated with the construction of the Indian Avenue Interchange, it was determined that the project will have certain direct, indirect, and cumulative effects on Federally threatened and endangered species, specifically the Coachella Valley milk-vetch (Astragulus lentiginosus var. coachellae) and Coachella Valley fringe-toed lizard (Uma inornata). A Conservation Plan to identify and appropriately mitigate environmental impacts associated with five I- 10 Interchange Projects (Indian, Palm/Gene Autry, Date Palm, Bob Hope/Ramon, and Jefferson) was prepared in consultation with Caltrans, CVAG, Riverside County and the United States Fish and Wildlife Service (USFWS). ITEM NO. City Council Staff Report July 25, 2007- Page 2 Indian Avenue Interchange Mitigation Agreement Subsequently, the USFWS issued a Programmatic Biological Opinion (PBO) on September 23, 2004, for the Indian Avenue Interchange and associated arterials, in accordance with the Conservation Plan. The PBO requires that the City, as lead agency, acquire and preserve 332.5 acres of land to offset habitat lost as a result of the Indian Avenue Interchange Project. CVAG has agreed to fund the acquisition and management of all habitat conservation lands associated with the Conservation Plan, including the 332.5 acres of land specifically identified for the Indian Avenue Interchange Project. Caltrans has prepared a standard form Mitigation Agreement, that identifies the City's project and the responsibilities associated with the USFWS PBO. Approval of the Mitigation Agreement is necessary to legally reflect the obligations identified in the USFWS PBO, and accurately reflects CVAG's commitment to satisfy the mitigation requirements of the USFWS PBO, including the acquisition and management of all habitat conservation lands. FISCAL IMPACT: None. Submitted: ht((]t--- BB David J. Barakian Thomas J. Wil'son Director of Public Works/City Engineer Assistant City Manager Approved: David H. Ready City Manager ATTACHMENTS: 1. Mitigation Agreement 2. Minute Order 060002 :J ATTACHMENT MITIGATION AGREEMENT a/ 08-Riv-10-PM 32.6/33.6 Mitigate Laud for Interchange Project EA 45570 District Agreement No. 8-1269 MITIGATION AGREEMENT This AGREEMENT, entered into effective on 2007, is between the STATE OF CALIFORNIA, acting by and through its Department of Transportation, referred to herein as "STATE", and COACHELLA VALLEY ASSOCIATION OF GOVERNMENTS, a public entity, referred to as "CVAG," and the CITY OF PALM SPRINGS, a body politic and a municipal corporation of the State of California, referred to herein as "CITY." RECITALS 1. STATE, CVAG and CITY pursuant to Streets and highways Code section 114, are authorized to enter into a Cooperative Agreement for improvements to State Highways within Riverside County. 2. STATE, CVAG and CITY desire the reconstruction of the Indian Avenue Interchange and associated arterials in the Coachella Valley on hiterstate 10 in Riverside County, referred to herein as "PROJECT." 3. STATE and CITY has determined that PROJECT will have certain direct, indirect, and cumulative effects on Federally threatened and endangered species, specifically the Coachella Valley milk-vetch (Astragulus lentiginosus var. coachellae) and Coachella Valley fringe-toed lizard (Unza inornata), hereinafter referred to as "IMPACTS." 4. STATE and CITY, in order to mitigate for IMPACTS and thereby satisfy the requirements of the United Siates Fish and Wildlife Service's (USFWS) Programmatic Biological Opinion(PBO)No. 1-6-04-F-3282.4, dated September 23, 2004, and the Conservation Plan (CP), dated August 2003, for PROJECT, which by their reference are incorporated into this Agreement, must ensure that 332.5 acres of land, which is deemed essential and suitable for the long term sustainability of the Coachella Valley milk-vetch and Coachella Valley fringe-toed lizard, is preserved and protected in perpetuity, referred 1 OGOIn0j District Agreement No. 8-1269 to herein as "MITIGATION REQUIREMENT," and located in the conservation areas as identified in EXHIBIT"A," MITIGATION MATRIX FOR INTERCHANGE AND ASSOCIATED ARTERIALS PROJECTS, and approved by the United States Fish and Wildlife Service (USFWS) and the California Department of Fish and Game(CDFG). 5. CVAG desires to assist STATE and CITY by satisfying MITIGATION REQUIREMENT. 6. STATE, CVAG and CITY mutually desire to specify herein the terns and conditions under which CVAG will satisfy MITIGATION REQUIREMENT. SECTION I CITY AGREES: 1. To authorize CVAG to assist in satisfying MITIGATION REQUIREMENT. 2. To review and approve all plans prepared by CVAG for MITIGATION REQUIREMENT_ SECTION II CVAG AGREES: I. To satisfy MITIGATION REQUIREMENT, specifically by performing any and all necessary work, including but not limited to, locating, appraising, funding, and acquiring 332.5 acres of land which is deemed essential and suitable for the long term sustainability of the Coachella Valley milk-vetch and Coachella Valley fringe-toed lizard. CVAG further agrees to ensure that said 332.5 acres of land is owned, operated, managed, and maintained in perpetuity for that said purpose. 2. To be fully and completely responsible for any and a]I requirements and/or conditions that are imposed on the 332.5 acres of land by the CP and/or by USFWS. Irr the event that those requirements and/or conditions require documents be presented to USFWS and/or other resource agency, CVAG shall submit all such documents to STATE for submission by STATE to USFWS and any other appropriate resource agency as necessary. 3. To perform all work and acquire the necessary land in accordance with all policies, procedures,practices, and standards that STATE would normally follow. 4. To utilize one hundred percent (100%) of CVAG funds to satisfy MITIGATION REQUIREMENT and to hold, manage, invest and reinvest an endowment fund as a separate permanent fund, hereinafter referred to as "ENDOWMENT ACCOUNT,"with 2 000005 District Agreement No. 8-1209 total not to exceed$1,077,000 for funding of ENDOWMENT ACCOUNT for all mitigation lands for five (5) interchanges named in the CP. If it is determined that the endowment costs exceed this amount, CVAG agrees to fund the difference through separate CVAG funds. 5. To fund and establish an ENDOWMENT ACCOUNT with CVAG funds for the long-term management, operation and maintenance of the 332.5 acres of land_ 6. CVAG agrees to ensure that the income, including the interest, dividends, and capital gains from the management, investment and reinvestment(the "hicome") from the ENDOWMENT ACCOUNT will be utilized for the long-term management of the properties as required to satisfy MITIGATION REQUIREMENT. 7. To retain all books, documents, papers, accounting records, and other evidence pertaining to costs incurred, including support data for cost proposals, and make such materials available at the respective offices of CVAG at all reasonable times during the contract period and for three (3) years from the date of final payment under the contract. STATE, FHWA, or any duly authorized representative of the Federal Govenunent shall have access to any books, records, and documents of CVAG that are pertinent to the contract for audits, examinations, excerpts, and transactions, and copies thereof shall be furnished if requested. SECTION III STATE AGREES: 1. To provide CVAG and CITY with a copy of the PBO and CP and any subsequent amendments or permits for PROTECT that may affect STATE's and CITY's MITIGATION REQUIREMENT. 2. To submit a copy of any documents submitted by CVAG pursuant to Section 11, Article 2, to USFWS or other appropriate resource agencies as necessary. 3. To obtain written confirmation from USFWS of their acceptance of the MITIGATION REQUIREMENT and provide said notice to CVAG and CITY. SECTION IV IT IS MUTUALLY AGREED: 1. All obligations of STATE under the ternns 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, 3 660996 District Agreement No. 8-1269 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 CVAG may, when the Coachella Valley Multi-Species Habitat Conservation Plan (CVMSHCP) is approved and permitted, assign certain responsibilities set forth herein this Agreement, including but not limited to the management and monitoring responsibilities, to the Coachella Valley Conservation Commission(CVCC). As such, CVAG will be obligated, as CVMSHCP Permitce and signatory to the CVMSHCP Implementation Agreement (IA) to ensure that the 332.5 acres of land is conserved in perpetuity. 4. Neither STATE, CITY nor any officer or employee thereof is responsible for any damage or liability occurring by reason of anything done or omitted to be done by CVAG under or in connection with any work, authority or jurisdiction conferred upon CVAG and arising under this Agreement. It is understood and agreed that CVAG shall fully defend, indemnify and save harmless STATE, CITY and all their 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 and other theories or assertions of liability occurring by reason of anything done or omitted to be done by CVAG tinder this Agreement. 5. Neither CITY, CVAG 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. wider or in connection with any work, authority or jurisdiction conferred upon STATE. and arising under this Agreement. It is understood and agreed that STATE shall fully defend, indemnify and save harmless CITY, CVAG and all their officers and employees from all claims, suits or actions of every narne, kind and description brought forth wider, including, but not limited to, tortious, contractual, inverse condemnation and other theories or assertions of liability occurring by reason of anything done or omitted to be done by STATE tinder this Agreement. 6. Neither STATE, CVAG 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 and arising under this Agreement. It is understood and agreed that CITY shall fully defend, indemnify and save han-nless STATE, CVAG and all their 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 and other theories or assertions of liability occurring by reason of anything done or omitted to be done by CITY under this Agreement. 7. No alteration or variation of the terms of this Agreement shall be valid unless made in a written amendment to this Agreement and signed by the parties hereto and no oral understanding or agreement incorporated herein shall be binding on any of the parties hereto. District Agreement No. 8-1269 8. This Agreement shall terminate upon acceptance of the MITIGATION REQUIREMENT by USFWS, STATE, and CITY or on June 30, 2014, which ever is earlier in time. However, the ownersbip, endowment, maintenance, and indemnification clauses shall remain in effect until terminated or modified, in writing, as noted in Section III, Article 7, above. SIGNATURES ON FOLLOWING PAGE: District Agreement No- 8-1269 STATE OF CALIFORNIA CITY OF PALM SPRINGS DEPARTMENT OF TRANSPORTATION WILL KEMPTON Director By: Mayor By: MICHAEL A. PEROVICH District Director Attest: CITY Clcrk APPROVED AS TO FORM AND APPROVED AS TO FORM AND PROCEDURE: PROCEDURE: B By: Atiome , CITY Attorney Department of Transportation CERTIFIED AS TO FUNDS: COACHELLA VALLEY ASSOCIATION OF GOVERNMENTS By: District Budget Manager By: Chairman, Executive Committee CERTIFIED AS TO FINANCIAL TERMS AND POLICIES: By: Exccutive Director L Acco nting Administrator' By: CVAG Counsel 6 Don Districi Agreement No. 5-1269 STATE OF CALIFORNIA CITY OF PALM SPRINGS DEPARTMENT OF TRANSPORTATION r WILL KEMPTON Director By: Mayor By: MICHAEL A.PEROVICH District Director Attest: City Clerk APPROVED AS TO FORM AND APPROVED AS TO FORM AND PROCEDURE: PROCEDURE( By. BY:— wi Attorney, C*AU-0my Department of Transportation CERTIFIED AS TO FUNDS: COACHELLA VALLEY ASSOCIATION OF GOVERNMENTS By: District Budget Manager By. Chainnan,Executive Committee CERTIFIED AS TO FINANCIAL TERMS AND POLICIES: By: Executive Director By: Accounting Administrator By: CVAG Counsel DRAFT,April 2,2007 6 IyCIQJ�{� District Agreement No. 3-1209 EXHIBIT "A" CDFG and USFWS agree that mitigation land may be purchased for 1-10 interchange projects and associated arterials in the CV MS11CP proposed Conservation Areas as indicated in the matrix below. All parties recognize that the location of a parcel need not be reviewed and approved by CDFG or USFWS if the parcel is located in any of the Conservation Areas indicated in the matrix for the given interchange and associated arterial project. All parties recognize, however, that parcels must conform to CDFG and USFWS standards regarding clear title and land condition, e.g., parcels with liens or hazardous materials on site would not be acceptable to CDFG and USFWS. Conservation Area Where Mi[i aiiar:Ma he Accomplished ICPrnject Snow Highway Upper Mission Whitewater Willow Edom Thousand Indio past lndio Creek/ III/Il0 Mission Creek/ Ploodplarn Hole Hill Palms Hills/Joshua Hills Windy Creek Morongo Tree National Point Wash Park Linkage Indian X X X X X X Ave. Palm/Genc X X X X X Autry Date Palm X X X X X Ramon/ X X X X X Bob Hope Jefferson X X X 7 00003.1 , 1 a �! n� 1 ✓f r P ATTACHMENT 2 MINUTE ORDE,�, j MINUTE, ORDER NO. APPROVING A MITIGATION AGREEMENT BETWEEN THE STATE OF CALIFORNIA, ACTING BY AND THROUGH ITS DEPARTMENT OF TRANSPORTATION (CALTRANS), THE COACHELLA VALLEY ASSOCIATION OF GOVERNMENTS (CVAG), AND THE CITY OF PALM SPRINGS, RELATED TO THE INDIAN AVENUE INTERCHANGE AND ASSOCIATED ARTERIALS I, James Thompson, City Clerk of the City of Palm Springs, hereby certify that this Minute Order approving a Mitigation Agreement between the State of California, acting by and through its Department of Transportation (Caltrans), the Coachella Valley Association of Governments (CVAG), and the City of Palm Springs, related to the Indian Avenue Interchange and associated arterials, was adopted by the City Council of the City of Palm Springs, California, in a meeting thereof held on the 25th day of July, 2007. James Thompson, City Clerk