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HomeMy WebLinkAbout09/21/2004, C3 - APPROVAL OF USE OF A PORTION OF THE FILIPPONI ECOLOGICAL AREA FOR MITIGATION FOR IMPACTS TO CONGDON Coun Vi L Meati�D1e/ j acEnaa Repoin ,«N� C I TY OF SAN LU IS O B I S P O FROM: Wendy George, Assistant City Administrative Officer -01 Prepared By: Neil Havlik, Natural Resources Manager SUBJECT: APPROVAL OF USE OF A PORTION OF THE FILIPPONI ECOLOGICAL AREA FOR MITIGATION FOR RAPACTS TO CONGDON'S TARPLANT. CAO RECOMMENDATION 1. As recommended by the Parks and Recreation Commission, authorize the use of approximately four acres of land within the City's 75-acre Filipponi Ecological Area for mitigation of impacts to the Congdon's tarplant occasioned by the development of the Costco project on Los Osos Valley Road and the Dioptics development on Vachell Lane in the unincorporated area. 2. Authorize the Mayor to sign the attached agreements with Costco and Dioptics memorializing the terms of the mitigation projects. DISCUSSION When the City of San Luis Obispo purchased 75 acres along South Higuera Street from the Filipponi family in 2000, it was with the idea that the property would be utilized for environmental enhancement and mitigation purposes. That idea was quickly realized in April of that year with the so-called "Three- Party Agreement" between the City of San Luis Obispo, County of San Luis Obispo, and the Land Conservancy which has resulted in a significant riparian restoration project at the confluence of San Luis Obispo Creek and its East Fork tributary. That project is still ongoing but its outline is basically complete. Excavating depressions and an overflow channel for East Fork resulted in the need to create disposal sites on the property which ended up being a few feet higher than surrounding areas. Staff felt that these higher areas were suitable for use in some other type of mitigation or enhancement such as creating habitat for Congdon's tarplant, and we have been searching for a source of funds to undertake such a project since that time. This summer the City was approached by two developers who were having difficulty obtaining mitigation sites for impacts to Congdon's tarplant populations occasioned by their projects. The developers were Costco and Dioptics. Staff felt that this represented an excellent opportunity to undertake further environmental enhancement of the Filipponi site at no cost to the City. Dioptics has been required, as a condition of approval for its project in the County, to create 14,000 square feet of new Congdon's tarplant habitat, and Costco has been required to create 35,000 square feet of new habitat. These are both requirements of the California Department of Fish and Game, pursuant to their authority under CEQA. Staff's concept on the use of the Filipponi site has been that no cash payment would be required of the developers, but a substitute for payment would be made in the form of an enlarged project. Staff suggested three times the required size, and this was agreeable to the developers. As a result, Dioptics has agreed to create nearly one acre (42,000 square feet) and Costco has agreed to create 105,000 square feet of habitat at the Filipponi site. C3 Council Agenda Report- Approval of Use of Filipponi Ecological Area for Mitigation Page 2 Proposed City policy requires that use of City properties for private mitigation must provide a benefit to the overall community and that such projects be approved by the Parks and Recreation Commission and by the City Council. The Commission discussed the subject at its September 1, 2004, meeting and found that the project had certain environmental benefits to the property as well as to the community, and therefore unanimously supported the proposal. Draft minutes of that meeting will be made available to the Council before the Council meeting. (Note: the proposed policy on mitigation on City-owned lands is a part of the draft Conservation and Open Space Element. The draft Element has been controversial, and is still under review by the Planning Commission. As a result the policy statement has not been formally adopted by the Council; nevertheless staff has treated the draft policy as if it had been adopted. The pertinent language from the draft Conservation and Open Space Element is attached as Attachment 3.) The question may be asked why the City should help these private projects, especially the Dioptics project, which is located in the County and represents the kind of development at our City borders that we strongly oppose. Initially, both developers expected to find appropriate sites for their mitigation projects elsewhere. Dioptics, in fact, was considering the use of a portion of their development site for the tarplant. Costco was looking at the possible use of a drainage basin at the Froom Ranch site for the tarplant. However, recent practices of both State and Federal agencies have begun to favor the use of sites with "connectivity" to other sites rather than small, isolated mitigation areas serving very limited purposes. Therefore, the location of the mitigation sites on the Filipponi property was seen as an environmental opportunity for the City and not as any kind of"bail-out" for either project sponsor. On the contrary, it was viewed by staff as a superior means of addressing a need that would otherwise be met in a technically appropriate but clearly inferior manner. And finally, since the Dioptics project is already under construction, staff did not view providing a mitigation opportunity on City open space as abetting the project, since it was already a reality prior to this proposed agreement. What is proposed, in short, is as follows: 1. Areas will be identified in the field and depressions created to provide suitable habitat for Congdon's tarplant seeds collected from the Costco and Dioptics development sites. 2. The depressions will be constructed and seeded. 3. The site will be monitored for at least three years to determine the successful establishment of the population using the criteria required by the California Department of Fish and Game. 4. Costco and Dioptics will pay all costs of the mitigation and monitoring work. The City will have no financial obligations with the project at all. If the Council approves this action, the mitigation work will be conducted in October. It is expected to only take about 2-3 days to accomplish the construction of the depressions and the seeding of the site. The work will be done by consultants and contractors to Costco and Dioptics, but the general layout and approach to the project will be under the direction of City Natural Resources staff. 03 ,E Council Agenda Report- Approval of Use of Filipponi Ecological Area for Mitigation Page.3 CONCURRENCES The Park and Recreation Commission considered this matter at its meeting of September 1, 2004, and voted unanimously to support the proposal; staff will forward the draft minutes of that meeting under separate cover. ALTERNATIVE The Council could deny permission to use the Filipponi Ecological Area for this mitigation. This is not recommended, as this is a project that City staff have foreseen as a desirable use of the site and one for which we had ourselves been searching for funds to undertake. Therefore the project represents a good opportunity to achieve a community goal at no public expense. Attachments: 1. Location Map 2. Letter proposals from Costco and Dioptics 3. Draft City Policy on Mitigation Sites 4. Agreements G:\StafflHAVLWCouncilagcnda\Fihpponi tarplant.doc C3� 3 0 to EN'S I x ' General Area of Mitigation , „ cry „ 0„ CITY OF SAN LUIS OBISPO FILIPPONI ECOLOGICAL AREA (No Public Access at This Time) ®WNfOLEiLE ATTACHMENT 2 August 12, 2004 Mr. Ken Hampian. City Administrative Officer City of San Luis Obispo 990 Palm Street San Luis Obispo, CA. 93401 Dear Mr. Hampian, Costco respectfully asks permission of the City of San Luis Obispo to utilize a portion of the City's Filipponi Ecological Area property for the purpose of mitigating impacts to Congdon's Tarplant that would be occasioned by the construction of the Costco Retail Center on Los Osos Valley Road. Sincerely, Costco W al Jack Frank resident— Director of Development 999 Lake Drive • Issaquah, WA 98027 • 425/313-8100 • www.costco.com �� I .- o ATTACHMENT 21 zaca Lane 1 KIST. San Luis Obispo, CA 93401 ® Telephone: (80S) 781-3300 Fax: (80S) 781-3322 July 29, 2004 Mr. Ken Hampian City Administrative Officer City of San Luis Obispo 990 Palm Street San Luis Obispo, Ca 93401 Dear Mr. Hampian, Dioptics Medical Products, Inc. is in the process of expanding our operations at the southern edge of the City of San Luis Obispo. We have been located within the City since 1989, and provide professional and manufacturing jobs to over 100 employees. Our company is growing and we recently started construction on a new manufacturing and warehouse facility on Vachell Lane off South Higuera St. We would like your support and approval to participate in an endangered plant mitigation project at the Filliponi Ecological Area on South Higuera St. We have been working with Neil Havlik on a mutually beneficial project to preserve an endangered plant known as Congdon's Tarplant. Thank you for your consideration in this matter. Sincerely, Janice Langley Chief Financial Officer Cc: Neil Havilk Ph.D. City Natural Resources Manager . .�•-.� �' . . �'.� .. +.k., ,��3�'� ... ._. ' � v:.`Rl �'�. ^!.!J?:V"'.PJ:. ��>`•Q h_.. ll- J�1'„'_lGr =.,. .. t M5 e ^ eAt�'T �J a San Luis Obispo General Plan -- Conservatid�lM&AGAVIAN Ament 5. The City will coordinate law enforcement and emergency response for its open space lands with all potentially affected agencies. 6. The City may lease land to other agencies or organizations for maintenance or service activities, provided the lease agreement reflects all City policies and management objectives. 7. The City should lease lands designated Agriculture for continued agricultural use, provided the lease agreement reflects all City policies and management objectives. 8. The City may provide services on or maintain resource-protection lands owned by others, where warranted by adjacency to City-owned land and long-term resource-protection needs. Such activity shall be subject to an agreement approved by the City Council. The costs for such services shall be bome by the owner, unless the City Council determines that bearing part or all of the cost is necessary to implement City policies. 9. The City will monitor its open space holdings often enough for timely discovery and response to problems such as substantial hazards, encroachment, trespass, and degradation of resources. 10. The City may enlist volunteers, including community organizations and neighboring landowners, to help monitor and maintain open space and recreational resources. Volunteers will receive training appropriate to the tasks they will be performing, including recognition of'situations and conditions requiring professional response. 11. The City will maintain a publicly accessible inventory of the location and type of its open space holdings and easements. The inventory will contain or be linked to documentation of the initial condition, and the evolving conditions; of land and easement areas that it acquires. 12. When compatible with the primary purpose of the open space, the City should use revenue from open space lands, such as agricultural lease payments, to fund open-space maintenance. Such revenues may also be used to acquire open space. 13. Mitigation for the impacts of private projects shall generally be conducted on private lands. However, special circumstances may arise that justify use of City-owned land as a mitigation site: A. Where there is a clear City benefit from a transaction that involves the use of City land as a mitigation site; or B. Where General Plan goals will be furthered by the appropriate use of City lands for mitigation purposes. Private mitigation actions on City-owned land shall have a clear resource-protection or amenity value to the site, and shall be subject to approval by the City Council. Mitigation at a City park shall be subject to review and recommendation by the Parks and Recreation Commission. Mitigation on City-owned open space shall be subject to review and recommendation by the Natural Resources Manager. 14. The City may form an Open Space Committee to advise staff on open space acquisition and management. W 1 Nearing Draft C -2 August 2002 ATTACHMENT 4 AGREEMENT FOR USE OF REAL PROPERTY FOR BIOLOGICAL MITIGATION ACTIVITIES This Agreement between the City of San Luis Obispo ("City") and Costco Wholesale, Inc. ("Costco") is entered into this 2151 day of September, 2004, with regard to the following RECITALS WHEREAS, City is the fee owner of certain lands near the City of San Luis Obispo and within the County of San Luis Obispo, referred to as San Luis Obispo County Assessor's parcel 076-061-075, and commonly known as the Filipponi Ecological Area; and WHEREAS, the Filipponi Ecological Area was acquired, in part, for use in habitat mitigation and habitat enhancement projects; and WHEREAS, the City of San Luis Obispo has been interested in creating habitat for the rare Congdon tarplant, possibly using City or grant funds; and WHEREAS, Costco is required by the California Department of Fish and Game to provide replacement habitat for a rare plant species known as Congdon tarplant, whose habitat will be destroyed by construction of a new building for Costco; and WHEREAS, the Filipponi Ecological Area contains lands well suited to the creation of such replacement habitat; and WHEREAS, Costco has requested the City of San Luis Obispo's permission to utilize a portion of the Filipponi Ecological Area for use as a replacement habitat. NOW, THEREFORE, the Parties agree as follows: 1. The City Council of the City of San Luis Obispo hereby grants permission to Costco to utilize a portion of the Filipponi Ecological Area for the creation of a replacement habitat for the destroyed habitat on the Costco site. 2. Costco agrees that, in lieu of a cash payment to the City of San Luis Obispo for this privilege, it will create three times the amount of habitat required by the California Department of Fish and Game. The parties agree that three times the required amount of habitat is approximately 21/z acres, or 105.000 square feet, and that Costco will create 105,000 square feet of such habitat on the Filipponi Ecological Area, in a suitable location identified by the City. 3. Costco further agrees that it shall be responsible for all costs associated with the mitigation project, including but not limited to, planning, contracting, and monitoring of the project. 4. Costco further agrees that it shall be responsible for the maintenance for the mitigation for a period of not less than three years, or longer, if required by the California C3- b ATTACHMENT 4 Department of Fish and Game, and that the City of San Luis Obispo shall have no maintenance obligations associated with the site during this time. The parties further agree that no special maintenance of the site will be required of the City of San Luis Obispo once the site is accepted' as complete and the mitigation is deemed successful. 5. Costco agrees to defend, indemnify, protect and hold the City and its agents, officers and employees harmless from and against any and all claims asserted or liability established for damages or injuries to any person or property, including injury to Costco's employees, agents or officers which arise from or are connected with or are caused or claimed to be caused by the acts or omissions of Costco, and its agents, officers or employees, in performing the project work, and all expenses of investigating and defending against same; provided, however, that Costco's duty to indemnify and hold harmless shall not include any claims or liability arising from the established sole negligence or willful misconduct of the City, its agents, officers or employees. 6. Costco shall procure and maintain for the year insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by Costco, its agents, representatives, employees, or subconsultants. a. Minimum Scope of Insurance. Coverage shall be at least as broad as: 1. Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001). 2. Insurance Services Office form number CA 0001 (Ed. 1/87)covering Automobile Liability, code 1 (any auto). 3. Workers'Compensation insurance as required by the State of California and Employer's Liability Insurance. 4. Errors and Omissions Liability insurance as appropriate to Dioptics profession. b. Minimum Limits of Insurance. Costco shall maintain limits no less than: 1. General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. 2. Automobile Liability: $1,000,000 per accident for bodily injury and property damage. 3. Employer's Liability: $1,000,000 per accident for bodily injury or disease. 4. Errors and Omissions Liability: $1,000,000 per occurrence. If Commercial Errors and Omissions Liability or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. c. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either: the insurer shall reduce or eliminate such deductibles or self-insured c3-q ATTACHMENT 4 retentions as respects the City,its officers, officials,employees and volunteers; or Costco shall procure a bond guaranteeing payment of losses and related investigations,claim administration and defense expenses. d. Other Insurance Provisions. The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions: 1. The City, its officers, officials, employees, agents and volunteers are to be covered as insureds as respects: liability arising out of activities performed by or on behalf of Costco; products and completed operations of Costco; premises owned, occupied or used by Costco;or automobiles owned, leased,hired or borrowed by Costco. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officers, official,employees,agents or volunteers. 2. For any claims related to this project, Costco's insurance coverage shall be primary insurance as respects the City, its officers, officials,employees, agents and volunteers. Any insurance or self-insurance maintained by the City, its officers,officials, employees, agents or volunteers shall be excess of Dioptics' insurance and shall not contribute with it. 3. Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City, its officers, officials,employees, agents or volunteers. 4. Costco's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 5. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided,canceled by either party,reduced in coverage or in limits except after thirty (30)days' prior written notice by certified mail,return receipt requested,has been given to the City. 6. Coverage shall not extend to any indemnity coverage for the active negligence of the additional insured where an agreement to indemnify the additional insured would be invalid under Subdivision (b) of Section 2782 of the Civil Code. e. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than ANII. f. Verification of Coverage. Costco shall furnish the City with a certificate of insurance showing maintenance of the required insurance coverage. Original endorsements effecting general liability and automobile liability coverage required by this clause must also be provided. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements are to be received and approved by the City before work commences. Insurance is to be submitted by Costco at the time of notification from the City to that effect. The insurance shall remain on file with the City for the duration of the two-year term to eliminate the need to collect insurance documents at the start of every individual project. C3 - 1 o ATTACHMENT 4 7. This permission can be cancelled by the City of San Luis Obispo for cause, including but not limited to, failure of Costco to perform any required activities under this agreement, and subsequent failure to cure such failure after reasonable notice by City. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed the day and year first above written. CITY OF SAN LUIS OBISPO, COSTCO WHOLESALE, INC. A Municipal Corporation By: David F. Romero Mayor APPROVED AS TO FORM: Jon an . Lowell City orney c3- � i ATTACHMENT 4 AGREEMENT FOR USE OF REAL PROPERTY FOR BIOLOGICAL MITIGATION ACTIVITIES This Agreement between the City of San Luis Obispo ("City") and Dioptics Medical Products, Inc. ("Dioptics") is entered into this 215`day of September, 2004, with regard to the following: RECITALS WHEREAS, City is the fee owner of certain lands near the City of San Luis Obispo and within the County of San Luis Obispo, referred to as San Luis.Obispo County Assessor's parcel 076-061-075, and commonly known as the Filipponi Ecological Area; and WHEREAS, the Filipponi Ecological Area was acquired, in part, for use in habitat mitigation and habitat enhancement projects; and WHEREAS, Dioptics is required by the County of San Luis Obispo to provide replacement habitat for a rare plant species known as Congdon tarplant, whose habitat will be destroyed by construction of a new building for Dioptics; and WHEREAS, the Filipponi Ecological Area contains lands well suited to the creation of such replacement habitat; and WHEREAS, Dioptics has requested the City of San Luis Obispo's permission to utilize a portion of the Filipponi Ecological Area for use as a replacement habitat. NOW, THEREFORE, the Parties agree as follows: 1. The City Council of the City of San Luis Obispo hereby grants permission to Dioptics to utilize a portion of the Filipponi Ecological Area for the creation of a replacement habitat for the destroyed habitat on the Dioptics site. 2. Dioptics agrees that, in lieu of payment to the City of San Luis Obispo for this privilege, it will create three times the amount of habitat required by the County of San Luis Obispo. The parties agree that three times the required amount of habitat is one acre, or 43,560 square feet, and that Dioptics will create one acre of such habitat on the Filipponi Ecological Area, in a suitable location identified by the City. 3. Dioptics further agrees that it shall be responsible for all costs associated with the mitigation project, including but not limited to, planning, contracting, and monitoring of the project. 4. Dioptics further agrees that it shall be responsible for the maintenance for the mitigation for a period of not less than three years, or longer, if required by the California Department of Fish and Game, and that the City of San Luis Obispo shall have no maintenance obligations associated with the site during this time. The parties further agree that no special C3 -I � ATTACHMENT 4 maintenance of the site will be required of the City of San Luis Obispo once the site is accepted as complete and the mitigation is deemed successful. 5. Dioptics agrees to defend, indemnify, protect and hold the City and its agents, officers and employees harmless from and against any and all claims asserted or liability established for damages or injuries to any person or property, including injury to Dioptics' employees, agents or officers which arise from or are connected with or are caused or claimed to be caused by the acts or omissions of Dioptics, and its agents, officers or employees, in performing the project work, and all expenses of investigating and defending against same; provided, however, that Dioptics'duty to indemnify and hold harmless shall not include any claims or liability arising from the established sole negligence or willful misconduct of the City, its agents, officers or employees. 6. Dioptics shall procure and maintain for the year insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by Dioptics,its agents, representatives, employees, or subconsultants. a. Minimum Scope of Insurance. Coverage shall be at least as broad as: 1. Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001). 2. Insurance Services Office form number CA 0001 (Ed. 1/87) covering Automobile Liability, code 1 (any auto). 3. Workers'Compensation insurance as required by the State of California and Employer's Liability Insurance. 4. Errors and Omissions Liability insurance as appropriate to Dioptics profession. b. Minimum Limits of Insurance. Dioptics shall maintain limits no less than: 1. General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. 2. Automobile Liability: $1,000,000 per accident for bodily injury and property damage. 3. Employer's Liability: $1,000,000 per accident for bodily injury or disease. 4. Errors and Omissions Liability: $1,000,000 per occurrence. If Commercial Errors and Omissions Liability or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. c. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its officers, officials, employees and volunteers; or 03 - 13 ATTACHMENT 4 Dioptics shall procure a bond guaranteeing payment of losses and related investigations,claim administration and defense expenses. d. Other Insurance Provisions. The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions: 1. The City,its officers, officials, employees,agents and volunteers are to be covered as insureds as respects: liability arising out of activities performed by or on behalf of Dioptics; products and completed operations of Dioptics; premises owned, occupied or used by Dioptics; or automobiles owned,leased, hired or borrowed by Dioptics. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officers, official, employees, agents or volunteers. 2. For any claims related to this project, Dioptics' insurance coverage shall be primary insurance as respects the City, its officers„officials, employees, agents and volunteers. Any insurance or self-insurance maintained by the City, its officers,officials,employees, agents or volunteers shall be excess of Dioptics' insurance and shall not contribute with it. 3. Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City, its officers, officials, employees,agents or volunteers. 4. Dioptics' insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 5. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30)days'prior written notice by certified mail,return receipt requested, has been given to the City. 6. Coverage shall not extend to any indemnity coverage for the active negligence of the additional insured where an agreement to indemnify the additional insured would be invalid under Subdivision (b) of Section 2782 of the Civil Code. e. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VII. f. Verification of Coverage. Dioptics shall furnish the City with a certificate of insurance showing maintenance of the required insurance coverage. Original endorsements effecting general liability and automobile liability coverage required by this clause must also be provided. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements are to be received and approved by the City before work commences. Insurance is to be submitted by Dioptics at the time of notification from the City to that effect. The insurance shall remain on file with the City for the duration of the two-year term to eliminate the need to collect insurance documents at the start of every individual project. c3- 14 ATTACHMENT 4 7. This permission can be cancelled by the City of San Luis Obispo for cause, including but not limited to, failure of Dioptics to perform any required activities under this agreement, and subsequent failure to cure such failure after reasonable notice by City. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed the day and year first above written. CITY OF SAN LUIS OBISPO, DIOPTICS MEDICAL PRODUCTS, INC. A Municipal Corporation By: David F. Romero Mayor APPROVED AS TO FORM: Jo tha . Lowell City Attorney