Item 12 - Los Penasquitos Lagoon Restoration ProjectMay 4, 2021, Item #12DATE: TO: FROM: CONTACT: SUBJECT: Summary: AGENDA REPORT CityofPoway May 4, 2021 Honorable Mayor and Members of the City Council Robert Manis, Director of Development Servicesp.AA. Tracy Beach, Senior Civil Engineer rE:> (858) 668-4652 or tbeach@poway.org Los Penasquitos Lagoon Restoration Project CITY COUNCIL The City of Poway is located in two watersheds, Los Penasquitos and San Dieguito and is subject to requirements listed in the current version of the National Pollutant Discharge Elimination System (NPDES) permit for discharges of storm water from their municipal separate storm sewer systems or MS4s. The NPDES permit is regulated by the Regional Water Quality Control Board (RWQCB). The City has participated in development of Water Quality Improvement Plans (WQIPs) for each watershed in collaboration with the other responsible agencies (Copermittees) in each watershed. The Los Penasquitos Lagoon Restoration project (Restoration Project) is one of the compliance pathways identified in the Los Penasquitos WQIP to address excessive sediment that has been deposited in the lagoon over time. Poway staff presented the Restoration Project to the City Council in January 2021 and received direction to continue negotiating the cost share agreement for the project with the other Copermittees. This report presents the results of the negotiations completed by staff and provides the proposed final Cost Share Agreement for execution. Recommended Action: It is recommended that the City Council receive the report, authorize the City Manager to execute the Phase I Cost Share Agreement (Attachment A) for the Los Penasquitos Lagoon Restoration Project, and authorize the City Manager to appropriate funds. Discussion: As a part of the Clean Water Act (CWA), the Los Penasquitos Lagoon is listed as an impaired waterbody for sedimentation and siltation. Pursuant to the CWA, each state is required to identify impaired waters and establish a total maximum daily load (TMDL) for pollutants. A TMDL establishes the maximum amount of a pollutant allowed in a waterbody and serves as the starting point for restoring water quality. In June 2012, the Regional Board issued the TMDL for Sedimentation in the Los Penasquitos Lagoon (Sediment TMDL). The Sediment TMDL for the Lagoon established a baseline 1 of 17
May 4, 2021, Item #12sediment load from the 1970s, which was prior to the intense development of the watershed. Each jurisdictions' share of required sediment reduction was calculated separately by modeling the watershed and the lagoon. The total sediment load reduction target is approximately 67 percent. Poway's reduction was calculated to be 320 tons of sediment per year. The Sediment TMDL identifies two options to demonstrate compliance: 1. the successful physical restoration of 346 acres of lagoon salt marsh habitat; or 2. implementation of Los Penasquitos WQIP measures to reduce sediment affecting 346 acres and achieve lagoon salt marsh habitat restoration. Full implementation of the Sediment TMDL must be completed by 2035. The Restoration Project is a regional effort created to try to meet the requirements set forth in the Sediment TMDL, Option 1 listed above. Since it may be difficult to prove that sediment load reductions, via Option 2, will restore the Lagoon so there is a total of 346 acres of salt marsh habitat, the Copermittees chose the Restoration Project to ensure the restoration and ultimately, compliance with the Sediment TMDL. The Restoration Project has been separated into two phases. Phase 1 of the project restores the area southwest of the railroad berm and provides guidance for restoration planned under Phase 2. Phase 2 covers the larger area of the lagoon northeast of the railroad berm and will include lessons learned from Phase 1. Phase 1 includes management of existing sediment, removing the large population of non-native vegetation species within the corridor where Los Penasquitos Creek and Carroll Canyon Creek converge. It also includes floodplain enhancements in three locations. These enhancements expand the floodway channel width and improve channel capacity. Channel capacity is needed to better move floodwaters through Sorrento Valley while reducing sediment transport. Also included in Phase 1 is freshwater management. New channel alignment, side channels, and storm drain connections for freshwater are proposed as well as mosquito breeding habitat management. The proposed channel network is designed to convey dry weather freshwater flows away from the marsh plain. Under existing conditions, the disconnected channel system results in ponding of fresh and brackish water, which has resulted in a loss of salt marsh. The conceptual design for the Lagoon channel network will provide a network of channels to improve water conveyance with vegetated islands supporting marsh habitat. Lastly, Phase 1 also includes 23 acres of non-native grass conversion to salt marsh native vegetation. After completion of the Phase 1 construction, monitoring of the vegetation and habitat in the mitigation areas is scheduled for approximately three years. This time will be used to observe the Lagoon, learn from Phase 1, and appropriately update the plans for Phase 2 based on how the Lagoon and habitat react to Phase 1. Phase 2 is anticipated to include additional freshwater management and invasive plant removal in areas north of the railroad berm to Carmel Valley Road in non-tidal historical salt marsh. Restoration of the Lagoon relies on key partnerships and funding amongst the Copermittees in the watershed. The City of San Diego has been designated as the lead agency for the Restoration Project and has managed the planning of the project thus far. A request for proposals went out in May 2019, interviews were held, and a design consultant was selected. The other Copermittees in the watershed are expected to participate in the design and construction phases for the project moving forward. To participate in the Restoration Project, Poway will be required to enter into a formal agreement to cost share the project with the other Copermittees. The draft cost share agreement (Agreement) for Phase 2 of 17
May 4, 2021, Item #121 was distributed to the Copermittees for review, approval, and signature. There has been much deliberation amongst the Copermittees regarding the cost share breakdown and the Agreement language itself. Poway staff has questioned Poway's contribution percentage numerous times throughout the review of the Agreement. Staff believes that the WQIP model used to determine the sediment loading failed to properly incorporate sediment reductions done through on-going channel maintenance within Poway. Recently, an analysis was done on Poway's rigorous channel cleaning program. The channel cleaning program includes removal of sediment in Poway's concrete channels. This information is reported with the WQIP annual reports but does not appear to have been included in the original analysis to the same degree. The WQIP model included an overall average for removal of multiple types of pollutants based upon an analysis completed by the City of San Diego in 2014. The percentage load for pollutant removal used was 10.1 %. The WQIP identifies Poway as having 615 tons of sediment load annually. Per Poway's channel cleaning program reporting, the lowest volume of sediment removal reported in any one year since 201 O is 196 tons. The volume of removal has varied over the years which is likely a result of volume of rain and staff availability to run the program. Incorporating the additional sediment removal would lower Poway's sediment loading. The extent to which the loading is lowered would depend on whether any other Copermittee has a robust channel cleaning program similar to Poway that was not taken into account. Poway staff discussed this discrepancy with the City of San Diego. Since the WQIP model is part of the currently approved WQIP, the revisions could not be made in a timely manner without significant delays to the Restoration project. The City of San Diego was amenable to adding language to the Agreement that would allow for revising the cost share allocation in the future, should the sediment load methodology be updated in the WQIP and approved by the Regional Board. Any adjustments to sediment load methodology would be applied to all Copermittees. Staff previously presented this project to the City Council in January 2021 and was directed to proceed with negotiating the Agreement with the other Copermittees, with consideration to participate in the Restoration Project. Staff had several conversations with the Copermittees and various levels of management within the City of San Diego. Staff negotiated the inclusion of the language that the City Council requested. During the term of the agreement, if the WQIP model is updated based on new information, approved by the Copermittees and the Regional Board, and shows a change to the percent sediment loading, then the Copermittees agree to meet in good faith to review the cost allocations of the agreement and negotiate potential amendments to the Agreement. Staff has negotiated the inclusion of language to the Agreement requiring the City of San Diego to seek approval from the Copermittees if the actual construction contract bid is higher than 5 percent above what is estimated in the Agreement, or if there is a construction change order requiring the City of San Diego to obtain approval from their City Council. Supporting documentation for the cost increases shall be provided to the Copermittees for approval prior to execution of the construction contract or change order. If any Copermittee does not approve of these cost increases, the Copermittees agree to meet in good faith to discuss a resolution within 14 business days. A separate cost share agreement will be executed for all future phases including monitoring, Phase 2 design and construction, and long-term maintenance. Each of these phases will be negotiated separately. Once the Phase 1 Agreement is executed by all Copermittees, design will proceed and is anticipated to take 33 months. The City of San Diego's original timeline projected the design to begin in early 2020 with design completion by September 2022. Construction of Phase 1 was estimated to commence in 2023 and extend through 2026. The monitoring phase was estimated to last for three 3 of 17
May 4, 2021, Item #12years following construction completion. This timeline is extended due to delays with the Agreement execution. During the implementation of Phase 1, planning of Phase 2 would commence. Implementation of Phase 2 was anticipated to begin in 2029, with an unknown length of time for completion. Final implementation and compliance with the Sediment TMDL must be achieved by December 31, 2034. Prior to the issuance of the request for proposals for design, the City of San Diego updated the projected costs for Phase 1. The total current estimate for Phase 1 construction is $35,225,451.82. The cost share breakdown for the Copermittees was calculated based on the sediment load allocation assigned to each jurisdiction through the model used in development of the WQIP. Based on this, Poway's contribution is 19.1 O percent of the total, as shown in Exhibit 3 of Attachment A, which equals $6,728,061.30. This breakdown included the City of Del Mar, City of San Diego, the County of San Diego, and Caltrans. However, Caltrans is not currently subject to the same permit as the other Copermittees. They have indicated they will make a flat payment in 2024 for their portion of the project. Language has been added to the Agreement explaining Caltrans' participation and their letter of intent is included as Exhibit 4 to the Agreement. Because of the exclusion of Caltrans from the agreement, their portion was reallocated amongst the Copermittees. Poway's contribution is therefore 19.65 percent of the total, as shown in Exhibit 1 of Attachment A, which equals $6,922,505.79. In Fiscal Year 2024, Caltrans' payment will be applied to the total cost for that year, and the reduced amount will be reflected in each jurisdictions' percent/invoice for that year. Environmental Review: The Los Penasquitos Lagoon Restoration project is subject to CEQA review. This review is being completed by the City of San Diego, the lead agency for the project. Fiscal Impact: Should the City Council direct staff to participate in the Restoration Project, Poway's currently proposed share of Phase 1 would be approximately $6.92 million or 19.65% of $35.23 million. This is being broken down into annual payments. Exhibit 1 of Attachment A reflects the cost share breakdown provided by the City of San Diego. The first several years would be based upon Poway's contribution to the cost of the project design, which is approximately $1.64 million. Based on staffs understanding, the first payment will be due after execution of the Agreement and will include the amounts shown in the cost share breakdown as due in FY 2020 and FY 2021 for a total of $810,473.70. The remaining approximately $6.11 million would be paid during subsequent fiscal years consistent with Exhibit 1 of Attachment A. As future costs are estimated costs, Poway's share could increase or decrease. Section 5 of the Agreement allows the construction contract costs to increase up to 5 percent without requiring an amendment to the Agreement. Even prior to the COVID-19 pandemic, the City did not have funding identified for this project. Should the City Council direct staff to participate in Phase 1 of the Restoration Project, General Fund unassigned fund balance is currently proposed to fund the City's share of Phase 1. As such staff recommends the City Council authorize the City Manager or their designee to appropriate funds consistent with Exhibit 1 of Attachment A and the terms of the Cost Share Agreement from General Fund Unassigned Fund Balance as the annual invoices are received from the City of San Diego. The first anticipated appropriation under this authority is anticipated to be $810,473.70. Sufficient 4 of 17
May 4, 2021, Item #12funds are currently available for this appropriation. Should the Phase 1 costs deviate more than allowed under the Agreement or General Fund Unassigned Fund Balance be insufficient to fund Phase 1 costs, staff will return to Council for their consideration of alternative options. Public Notification: None. Attachments: A. Cost Share Agreement Reviewed/ Approved By: Assistant City Manager 5 of 17 Reviewed By: Alan Fenstermacher City Attorney Approved By: City Manager
May 4, 2021, Item #12COST-SHARE AGREEMENT Peiiasquitos Watershed Management Area Los Peiiasquitos Phase I Lagoon Restoration Sediment TMDL CIP Project: WBS No. B-17033 March 2021 This Cost Share Agreement (AGREEMENT), entered into by and between the Cities of San Diego, Del Mar, and Poway, and the County of San Diego(hereinafter collectively called PARTIES and individually called PARTY) establishes the responsibilities of each PARTY with respect to carrying out collaborative activities in the Los Penasquitos Watershed Management Area (Penasquitos WMA) to support compliance with San Diego Regional Water Quality Control Board (RWQCB) Resolution No. R9-2012-0033, Amending the Water Quality Control Plan for the San Diego Basin {9} to incorporate the Total Maximum Daily Load for Sedimentation in Los Penasquitos Lagoon (Sediment TMDL), and Resolution No. R9-2013-0001, National Pollutant Discharge Elimination System {NPDES} Permit and Waste Discharge Requirements for Discharges from the Municipal Separate Storm Sewer Systems {MS4s} Draining the Watersheds Within the San Diego Region, as amended by R9-2015-0001 and R9-2015-0100 (MS4 PERMIT). Final compliance with the Sediment TMDL will be achieved by the restoration of 84 acres of salt marsh habitat in the Los Penasquitos Lagoon (Lagoon) no later than December 31, 2034. WHEREAS, the RWQCB adopted Resolution No. R9-2012-0033 approving an amendment to the Water Quality Control Plan for the San Diego Basin to incorporate the Sediment TMDL on June 13, 2012; and WHEREAS, the RWQCB adopted Order No. R9-2013-0001 issuing the MS4 PERMIT to the Phase I MS4s in the San Diego Region on May 8, 2013; and WHEREAS, the RWQCB has determined that the responsible Copermittees for the Penasquitos WMA under the MS4 PERMIT are the Cities of San Diego, Del Mar, and Poway, and the County of San Diego (COPERMITTEES); and, WHEREAS, the RWQCB has determined that Caltrans is a Responsible Party for purposes of the Sediment TMDL; and WHEREAS, the State Water Resources Control Board adopted Resolution No. 2014-0001 approving the amendment to the Water Quality Control Plan for the San Diego Basin to incorporate the Sediment TMDL on January 21, 2014; and WHEREAS, the Sediment TMDL was approved by the California State Office of Administrative Law and became effective on July 14, 2014 (Approval Date); and WHEREAS, the RWQCB has determined that the responsible parties under the Sediment TMDL are the PARTIES, as well as certain Phase II Small MS4 NPDES permittees, general construction storm water NPDES permittees, and general industrial storm water NOPES permittees who may contribute costs at a later date.; and 6 of 17 Page 1 of 5 ATTACHMENT A
May 4, 2021, Item #12WHEREAS, the PARTIES, have agreed to cooperate on implementation measures (e.g., load reduction, lagoon monitoring, lagoon restoration) as necessary to achieve compliance with the Sediment TMDL; and WHEREAS, the PARTIES developed a Water Quality Improvement Plan (WQIP) pursuant to the Sediment TMDL and the MS4 Permit to guide their efforts to comply with the requirements of the Sediment TMDL; and WHEREAS, the PARTIES have jointly developed the Los Penasquitos Lagoon Restoration Project Concept to guide their cooperative activities in order to achieve compliance with the Sediment TMDL; and WHEREAS, the PARTIES are required by the Sediment TMDL to develop and agree upon interim milestones that must be met to attain required reductions in sediment loading and/or show progress in restoring historic salt marsh habitat in the Lagoon within 15 years after the Approval Date of the Sediment TM DL; and WHEREAS, the PARTIES recognize that funding will be needed for implementation of the Lagoon Restoration Project over the term of the AGREEMENT, and that the expenditures will be shared equitably among the PARTIES as indicated in Exhibit 1. NOW, THEREFORE, in consideration of the foregoing, the PARTIES hereto mutually agree as follows: .(!) PURPOSE: This AGREEMENT is entered into for the purpose of outlining the responsibilities of the PARTIES including funding for implementation of Phase I of Lagoon Restoration Project, further described below, that complies with the Sediment TMDL in the Los Penasquitos WMA. W PROJECT DESCRIPTION: The overall Lagoon Restoration Project is divided into two phases. Phase I of the project, covered by the scope of this AGREEMENT and further described below, is located southwest of the railroad berm in the Lagoon and includes design, planning, and permitting of initial restoration; as well as freshwater management; sediment management; and grading activities. Construction of Phase I is divided into three sub-phases due to seasonal and other permitting restrictions. Phase I of the Lagoon Restoration Project will provide guidance for Phase II under an adaptive management approach. Phase II of the Lagoon Restoration Project will be located north of the railroad berm in the Lagoon and will include additional restoration to comply with the Sediment TMDL. The monitoring component following Phase I and all portions of Phase II will be covered under a future agreement. Phase I of the Lagoon Restoration Project includes the following components: A. Design, Planning, and Permitting of the Phase I Lagoon Restoration Project Concept: This work is described in EXHIBIT 2. B. Phase IA-Sediment Management: Components include floodplain enhancements, enhancement of the riparian corridor, and implementation of habitat mitigation through habitat enhancement for all three sub-phases. A more comprehensive scope of work will be developed at a future date following completion of Section (2)A above. C. Phase IS-Freshwater Management: Components include addition of a new channel network, excavation of existing channels, and grading of a wetland bench. A more comprehensive scope of work will be developed at a future date following completion of Section (2)A above. D. Phase IC-Grading Activities: Components include focused grading for salt marsh restoration and excavation of channels and adjacent wetland benches. A more comprehensive scope of work will be Page 2 of 5 7 of 17
May 4, 2021, Item #12developed at a future date following completion of Section (2)A above. 12) TERM: The term of this AGREEMENT shall commence on the date of the last signature of the duly authorized representatives of the PARTIES (Effective Date), and shall continue until the conclusion of the Phase I Project, estimated to be completed no later than June 30, 2027 . Because cost sharing for this project was scheduled to begin in FY20, but was delayed due to negotiation of this AGREEMENT, the PARTIES are responsible for Project costs expended in FY20 and FY21, as outlined in EXHIBIT 1. ~ PARTY RESPONSIBILITIES AND PARTICIPATION: A. RESPONSIBILITIES OF PARTY LEAD: The City of San Diego shall have the responsibility of overall management of the Lagoon Restoration Project throughout the design and construction phases of the project including, solicitation and administration of consultant contracts, preparation of construction documents, advertisement and award of construction contracts, project management, construction management, submittal of required work products to the RWQCB, and serving as a liaison to the RWQCB on behalf of the PARTIES, B. RESPONSIBILITIES OF ALL PARTIES: Each PARTY agrees to participate in collaborative efforts to support the PARTY LEAD in the implementation of the Lagoon Restoration Project by assigning one (1) person to serve as the PARTY representative to participate in meetings (at least 80% of all meetings), collaborate on developing strategies, participate in decision making, and review work products and submittals as needed. Further, analyses performed as part of this AGREEMENT, and subsequent conclusions, findings, and recommendations developed as a result of the analyses, will be completed using known relevant and acceptable water quality data. Each PARTY agrees to supply the PARTY LEAD with data associated with its jurisdiction (e.g., water quality data, rainfall data, land use data, etc.) as needed. 12) BUDGET AND COSTS: The following estimated annual limits shown for each fiscal year are for planning purposes only. The cost of the Design, Planning, and Permitting of the Phase I Lagoon Restoration Project Concept in Fiscal Years 2020 to 2021 will not exceed $4,124,128 and will be billed to the PARTIES upon approval of this AGREEMENT. Finalizing design and permitting, as well as the construction cost of Phases IA, IB, and IC described above is estimated to be incurred in Fiscal Years 2022 to 2027 and is approximately $31,101,324 based on the most recent engineer's estimate (EXHIBIT 1). The cost is anticipated to vary based on actual construction bids. At the time of awarding the construction contract, each PARTY's actual cost will be calculated based on the formula shown in EXHIBIT 3 of percent sediment load reduction required for each COPERMITTEE, as modeled and assigned in the Los Penasquitos WQIP. Should the actual construction contract bid be higher than 5% above what is estimated in the AGREEMENT, or if there is a construction change order requiring the PARTY LEAD to obtain approval from its City Council, these cost increases shall be provided to the PARTIES along with supporting documentation, prior to awarding the construction contract or prior to approving the aforementioned construction change orders. EXHIBIT 1 shall be revised accordingly and provided to the PARTIES for approval prior to execution of such construction contract or construction change order. If any PARTIES do not approve of these cost increases, the PARTIES agree to meet in good faith per Section 11 of this AG REEM ENT to discuss a resolution within 14 business days. Ultimately, the PARTY LEAD maintains authority to proceed with awarding contracts and approving change orders, and if a resolution cannot be reached and any PARTY chooses not to pay for the aforementioned increases in project costs, the PARTY may choose to terminate the AGREEMENT as outlined in Section 14. Caltrans, though named in the TMDL, is not a PARTY to this AGREEMENT. Their participation in the Lagoon Restoration Project is detailed in attachment 4. Any future phases of this project will be subject to a separate agreement, to be approved by all PARTIES. Page 3 of 5 8 of 17
May 4, 2021, Item #12,!§) PAYMENTS: Each PARTY shall pay its share of expenses each fiscal year within 90 days of receipt of an invoice from the PARTY LEAD. An invoice for the above TOTAL cost-share amount shall be sent to each PARTY at the beginning of each fiscal year that the AGREEMENT is in effect. As detailed in the Terms, the PARTIES are responsible for Project costs expended in FY20 and FY21, as outlined in EXHIBIT 1, and costs incurred may be retroactively invoiced based on the date of execution of the AGREEMENT. flJ NON-COMPLIANCE WITH AGREEMENT REQUIREMENTS: Any participant to this AGREEMENT that fails to comply with the conditions of this AGREEMENT shall be solely liable for any lawfully assessed penalties resulting from such non-compliance. Failure to comply with AGREEMENT conditions within specified timelines shall constitute non-compliance with the AGREEMENT. 1B) AMENDMENTS TO THE AGREEMENT: If during the term of this AGREEMENT, the WQIP model is updated based on new information, approved by the PARTIES and the RWQCB, and shows a change to the percent sediment loading in EXHIBIT 3 of this AGREEMENT, then the PARTIES agree to meet in good faith to review the cost allocations of this AGREEMENT and negotiate potential amendments to the AGREEMENT, as appropriate. This AGREEMENT may be amended only by consent of all the PARTIES. Any amendment shall be effective when authorized in writing and signed by the duly authorized representatives of the PARTIES. 12) GOVERNING LAW: This AGREEMENT shall be governed and construed in accordance with the laws of the State of California. If any provision or provisions shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. In addition, each PARTY agrees to comply with all federal, state and local laws and ordinances applicable to the work to be performed under the terms of this AGREEMENT. ilQ) CONSENT AND BREACH NOT WAIVER: No term or provision hereof shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the PARTIES to have waived or consented. Any consent by any PARTY to, or waiver of, a breach by the other, whether expressed or implied, shall not constitute consent to, waiver of, or excuse for any other different or subsequent breach. 1l!) DISPUTES: The PARTIES agree to mediate any dispute prior to filing suit or prosecuting suit against the other parties. At least one mediation session of one day duration with an agreed mediator shall be held prior to any PARTY filing any suit or action with regard to this AGREEMENT; the cost shall be shared by the PARTIES equally. In the event suit is brought upon this AGREEMENT to enforce its terms, each PARTY shall be responsible for their own attorneys' fees and costs. ilZ) LEGAL RESPONSIBILITY: Each PARTY to this AGREEMENT (1) shall retain its legal responsibility to comply with the Sediment TMDL and MS4 PERMIT; and (2) shall pay all fines, penalties, and costs which may arise out of such PARTY's non-compliance with the Sediment TMDL and/or MS4 PERMIT. The PARTIES acknowledge and agree that participation in this AGREEMENT does not admit or create any liability or responsibility as a discharger for any draft or potential future TMDLs. 112) APPLICATION OF PRIOR AGREEMENTS: This AGREEMENT constitutes the entire Agreement between the parties with respect to the subject matter; all prior agreements, representations, statements, negotiations, and undertakings are superseded hereby. !11) TERMINATION: Any PARTY may terminate this AGREEMENT by giving written notice to the other parties no less than 30 days prior to the effective date of termination. Termination of this AGREEMENT does not release any PARTY for obligations of the Sediment TMDL or MS4 PERMIT, nor does it release the PARTY from its financial Page 4 of 5 9 of 17
May 4, 2021, Item #12responsibilities as outlined in Section 4 of this AGREEMENT. Upon termination, the terminating PARTY shall pay its cost share in full. !12) AVAILABILITY OF FUNDS: The obligation of each PARTY is limited to the funds appropriated for this AGREEMENT as set forth in Section 4 above. Entering into this AGREEMENT shall not be construed as obligating the PARTIES to future payment of money in excess of appropriations authorized by law. Approval of funds for each fiscal year under this AGREEMENT is subject to approval by Copermittee governing bodies as part of their regular annual budgeting process. EXECUTION OF AGREEMENT: This AGREEMENT may be executed in counterpart and the signed counterparts shall constitute a single instrument . .!!Z) ADA CERTIFICATION: The PARTIES hereby certify that they agree to comply with the City's Americans With Disabilities Act Compliance/City Contracts requirements set forth in Council Policy 100-04, adopted by San Diego Resolution R-282153 and incorporated into this AGREEMENT by reference. !m) RIGHT TO AUDIT: Each PARTY retains the right to review and audit, and the reasonable right of access to other PARTIES' respective premises to review and audit the PARTIES' compliance with the provisions of this AGREEMENT [PARTY's Right]. The PARTY's Right includes the right to inspect and photocopy same, and to retain copies, outside of the PARTIES' premises, of any and all records, including any and all books, records, and documents, related to the AGREEMENT with appropriate safeguards, if such retention is deemed necessary by the PARTY in its sole discretion. This information shall be kept by the PARTY in the strictest confidence allowed bylaw. EXHIBIT 1: EXHIBIT 2: EXHIBIT 3: EXHIBIT 4: 10 of 17 LIST OF EXHIBITS Shared Cost Budget Breakdown Scope of Services for Design of Los Pefiasquitos Lagoon Restoration Phase I Sediment Load Reductions by Jurisdiction Caltrans' Letter of Intent to Participate in Project Page 5 of 5
May 4, 2021, Item #12...a. ...a.
0 ......
.....
Copermittee
Del Mar
Poway
City of San Diego
County of San Diego
Total
% Cost Breakdown
0.031% $
19.652% $
77.889% $
2.428% $
100.00% $
EXHIBIT 1
Copermittee Shared Cost Breakdown for Los Pen Lagoon Restoration -Phase 1
FY2020 FY 2021 FY2022 FY 2023 FY 2024 FY 2025
375.06 $ 903.42 $ 884.74 $ 425.10 $ 2,776.72 $ 2,776.72 $
237,765.77 $ 572,707.93 $ 560,868.60 $ 269,483.23 $ 1,760,258.20 $ 1,760,258.20 $
942,364.05 $ 2,269,878.26 $ 2,222,954.11 $ 1,068,073.43 $ 6,976,630.92 $ 6,976,630.92 $
29,375.91 $ 70,757.93 $ 69,295.18 $ 33,294.59 $ 217,479.49 $ 217,479.49 $
1,209,880.79 $ 2,914,247.54 $ 2,854,002.63 $ 1,371,276.35 $ 8,957,145.32 $ 8,957,145.32 $
FY 2026 FY 2027 Total FY20 -FY27
2,768.88 $ 9.26 $ 10,919.89
1,755,293.03 $ 5,870.84 $ 6,922,505.79
6,956,951.92 $ 23,268.56 $ 27,436,752.17
216,866.04 $ 725.34 $ 855,273.97
8,931,879.88 $ 29,874.00 $ 35,225,451.82
May 4, 2021, Item #12EXHIBIT 2 SCOPE OF SERVICES LOS PENASQUITOS LAGOON RESTORATION -PHASE 1 1.0 2.0 BACKGROUND The Los Pefiasquitos Lagoon Foundation developed the updated Los Pefiasquitos Lagoon Enhancement Plan (Enhancement Plan) in 2016, which laid out the initial lagoon restoration concepts with the goal of restoring 84 acres of salt marsh habitat within a 20-year timeline in accordance with the Los Pefiasquitos Watershed Management Area Sediment Total Maximum Daily Load (Sediment TMDL). The restoration and enhancement concept was refined and divided into two phases. Phase 1 (Project) restores the area southwest of the railroad berm and provides guidance for restoration planned under Phase 2 using an adaptive management approach. Phase 2 restoration will cover the larger area of the lagoon northeast of the railroad berm and will include lessons learned from Phase 1. The Project is located in Council District 1 and generally bound by Interstate 5 (I-5) and Sorrento Valley Road to the east, Estuary Way, Roselle Street and the I-5 local bypass to the south, Flintkote Avenue and North Torrey Pines Road to the west, and Carmel Valley Road to the north. SCOPE DESCRIPTION Currently, Transportation and Storm water {TSW) Department would like to proceed with the design and construction of Phase 1 (Project). The Concept Design Goals for the Project were developed and are outlined in the 2018 Basis of Design Concept Report (see Exhibit A-1) in order to meet and support overarching goals from the updated Enhancement Plan for habitat improvements while also helping the City achieve TMDL compliance. Objectives developed to meet the Concept Design Goals will be refined (e.g., improved metrics for success) as the Project moves through project level design. Public Works will hire a consultant to provide a design package in accordance with the Project scope. TSW shall provide input throughout the process. The restoration and enhancement concept are refined and divided into two phases. Phase 1 (Project) of the overall project restores the area southwest of the railroad berm and provides guidance for restoration planned under Phase 2. The work would Design of Los Pefiasquitos Lagoon Restoration -Phase 1 1 of 3 Scope of Services 12 of 17
May 4, 2021, Item #12EXHIBIT A include the implementation of freshwater and sediment management of storm flows from Carroll Canyon Creek and Los Pefiasquitos Creek watersheds. The Project is divided into three sub-phases due to the extent of the project and limits on the period of time that construction will be permitted due to seasonal restrictions or other permitting restrictions. : Phase 1A -sediment management, Phase 1B -freshwater management, Phase 1C -grading. Design and environmental permitting services are required for the Project only. However, items that will inform Phase 2 restoration can be included in Project where appropriate. The Project should be consistent with the preferred alternative under the PEIR. It is expected a supplemental or additional California Environmental Quality Act ( CEQA) documentation will be required for the Project. 2.1 PHASE 1A -SEDIMENT MANAGEMENT Sediment management, including: 2.1.1 Creation of floodplain enhancements 1, 2 and 3, 2.1.2 Enhancement of the riparian corridor, and 2.1.3 Reduction of upstream flood risk. The Phase 1A components presented in this section include floodplain enhancements 1, 2 and 3 and implementation of habitat mitigation through habitat enhancement for all three sub-phases as discussed in the previous section. 2.2 PHASE 1B -FRESHWATER MANAGEMENT 2.2.1 Freshwater management, including: • Addition of the new channel network, and • Improvement of storm drain connections. 2.2.2 The Phase 1B components include: Design of Los Peiiasquitos Lagoon Restoration -Phase 1 2 of 3 13 of 17 Scope of Services
May 4, 2021, Item #12EXHIBIT A • Excavation of the primary and secondary channels (including enlarging portions of existing channels), • Excavation of tertiary channels (outside of the northern salt marsh restoration area only), • Grading of a wetland bench along the northern side of the primary channel, • Focused grading along the north side of the primary channel, and • Replacement of culverts to improve storm drain connections. 2.3 PHASE lC -GRADING 2.3.1 Grading for salt marsh restoration within the 24-acre area of non-native perennial rye grass. The Phase tC components include: • Excavation of tertiary channels and adjacent wetland benches within the salt marsh restoration area, and • Focused grading. The Project would likely require a CIP-5 Site Development Permit (SDP from the City of San Diego) and State Coastal Development Permit (CDP) from the California Coastal Commission (CCC). A California Environmental Quality Act (CEQA) Programmatic Environmental Impact Report (PEIR) for the larger Los Pefiasquitos Watershed is currently being prepared for distribution and subsequent approval by the State of California for the Lagoon Foundation. As this is part of the overall effort, it is assumed the Project will be implemented following the approval of the PEIR, and that project-specific activities will need to be analyzed and reviewed for consistency with the PEIR via a subsequent CEQA approval process through the City of San Diego Additionally, due to impacts to wetland resources, it is likely resource agency permitting will also be required in order to implement the Project. Design of Los Pefiasquitos Lagoon Restoration -Phase 1 14 of 17 END OF SCOPE OF SERVICES Scope of Services
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Exhibit 3
Total Wet Weather Sediment Load Reductions
These reductions were calculated as the final (FY35) goal subtracted from the baseline sediment discharge. The total load
reduction required is 1,673 tons/wet period. The total presented below does not include reductions for Caltrans.
Final Wet Weather Sediment Reductions for MS4 Discharges
Baseline (2009) Sediment Final (FY35) Sediment Percent of Final Reduction, Jurisdiction Discharge Reduction from Baseline by Jurisdiction (tons/wet period) (tons/wet season)
City of Del Mar 1.6 0.56 0.03%
City of Poway 677 319.54 19.10%
City of San DieQo 2386 1266.41 75.70%
County of San Diego 83.6 39.54 2.36%
TOTAL 3148.21 1626.052 97.19%
Notes:
1) Total baseline sediment load is 3,236 tons/wet period. Total presented does not include Caltrans discharge.
2) Final FY35 required sediment reduction is1 ,673 tons/wet period. Total presented does not include Caltrans discharge.
May 4, 2021, Item #12Exhibit 4 STATE OF CALIFORNIA-CALIFORNIA STATE TRANSPORTATION AGENCY GAVIN NEWSOM Governor DEPARTMENT OF TRANSPORTATION DISTRICT 11 4050 TAYLOR STREET, MS-242 SAN DIEGO, CA 92110 PHONE (619) 688-0100 Making Conservation a California Way of Life. FAX (619) 688-4237 TTY 711 www.dot.ca.gov February 17, 2021 Drew Kleis Deputy Director -Storm Water Division Transportation & Stormwater Department City of San Diego 9370 Chesapeake Drive, Suite 100 San Diego, CA 92123 Attn: Brianna Menke Storm Water Compliance Manager Dear Ms. Menke: On February 8, 2021, Caltrans District 11 (Caltrans) received a letter of support from the Regional Water Board. This letter stipulated the permit related details of Caltrans's financial participation in the Los Penasquitos Lagoon Restoration Project. Pursuant to this letter, D-11 will be preparing a Project Initiation Document (PIO) for submittal as part of the 2022 State Highway Operation and Protection Program (SHOPP). The PIO will outline and document the proposed strategy to provide funding for a Cost Sharing proposal that will allow Caltrans to acquire Compliance Units as allowed for under the current Caltrans National Pollutant Elimination Discharge System (NPDES) Permit. The PIO is proposing financial participation in a project to cover a portion of the restoration of the Los Penasquitos Lagoon. The financial contribution is estimated at $2,024,000 or $88,000 per restored acre for up to 23 Acres. These funds will be used for direct capital construction costs of the lagoon restoration project only and cannot be used for project support. All PID's currently under development by D-11 must be completed by June 30, 2021 in order to be included in the 2022 SHOPP. Once complete, the PID's will be compiled into the Draft 2022 SHOPP and submitted for review by the Regional Transportation Agencies and ultimately submitted to the California Transportation Commission (CTC) for final adoption, approval and programming. The 2022 SHOPP cycle begins on July 1, 2022 and covers a four-"'1rgvJc,e1c,safe, sustainable, integrated and efficient transportation system to enhance California's economy and livability"
May 4, 2021, Item #12Ms. Brianna Menke February 17, 2021 Page2 year time frame. Each PIO must identify a funding year within that four-year cycle. As such, the funding could be available as soon as the 22/23 State Fiscal Year (July 1, 2022 to June 30, 2023} but we are proposing the funds be made available in the 23/24 fiscal year or as soon as July 1, 2023. Once included in the adopted SHOPP, programmed values cannot be escalated or modified without further CTC action. A specific project allocation would be required by the CTC along with a formal agreement, such as a Cooperative Agreement, before the funds could be transferred to the City. Please note that all project funding is subject to budgetary authority of the State Legislature which proposes a State budget each Fiscal Year. I have attached an updated project schedule that includes key dates, milestones, and when formal funding commitments can be made. If you have any further questions, do not hesitate to contact the District Stormwater Chief, Carl Savage at Carl.Savage@dot.ca.gov (619) 921-4015. Sincerely, Gustavo Dallarda District Director *cc: Thomas Bouquin, Chief Deputy (Acting) Caltrans -District 11 Marcelo Peinado, Deputy Director, Asset Management -District 11 Joe Hull, Deputy Director, Program Project Management -District 11 Bruce April, Deputy Director, Environmental -District 11 Carl Savage, District Stormwater Branch Chief "Provide a safe, sustainable, integrated and efficient transportation system to enhance California's economy and livability" 17 of 17