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HomeMy WebLinkAboutContract 1785ASSIGNMENT AND ASSUMPTION OF PERMIT OBLIGATIONS The City of Cathedral City and the Coachella Valley Conservation Commission Department of the Army Permit No. SPL-2010-00505-VCL This ASSIGNMENT AND ASSUMPTION OF PERMIT OBLIGATIONS ("Assignment") dated as of Oci. / , 2018, is between the City of Cathedral City ("Assignor") and the Coachella Valley Conservation Commission ("Assignee") (collectively, the "Parties"). RECITALS A. The Parties wish to enter into this Assignment to confirm Assignor's assignment and Assignee's assumption of certain obligations under Department of the Army Permit No. SPL-2010-00505-VCL, attached as Exhibit A (the "Permit"). B. Special Condition 7 of the Permit requires mitigation through implementation of a Long - Term Management Plan (LTMP) on certain real property owned by Assignor, the City of Cathedral City (the "Mitigation Property"), which is described in Exhibit 13, as the "Easement Area." C. The City of Cathedral City has drafted, and intends to execute and record, a conservation easement over the Mitigation Property to assure that it is protected and maintained in perpetuity as natural open space. D. The Parties now intend to transfer implementation of LTMP responsibilities, except maintenance of the existing sheep fence, for the Mitigation Property from Assignor to Assignee. ASSIGNMENT NOW THEREFORE, in consideration of the provisions contained in this Assignment, and other consideration, the receipt and adequacy of which are hereby acknowledged, the Parties agree as follows: 1. Assignment. Assignor hereby assigns to Assignee all duties and obligations under the Permit relating to implementation of the LTMP on the Mitigation Property as set forth in Special Conditions 7 of the Permit, except maintenance of the existing sheep fence ("Assigned Obligation"). 2. Assumption. Assignee hereby assumes and agrees to comply with the Assigned Obligation. 3. Obligations Not Assumed by Assignee. Except as described in Section 1, Assignor does not assign and Assignee does not assume any of Assignor's other rights, duties, and obligations under the Permit. -1- 4. Assignor Remains Liable. Assignee will be responsible only for compliance with the Assigned Obligation and Assignor will remain liable for the portion of the obligations under the Permit that are not assigned to, and assumed by, Assignee under this Assignment. 5. Effective Date. This Assignment will become effective on the date of signature by the last Party. 6. Counterparts. This Assignment may be executed in counterparts, each of which shall be an original and have the same effect as if both of the Parties executing the counterparts had executed a single instrument. 7. Miscellaneous. This Assignment shall be binding on and inure to the benefit of the parties hereto, their heirs, executors, administrators, successors in interest and assigns. IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment as of the day first above written. ASSIGNOR: The City of Cathedral City A Y . 041 ✓�- ChaMcClendon City Manager By: \�Ll�t1 4'y ...—k Tracey R. Martinez Deputy City Clerk ASSIGNEE: Coachella Valley Conservation Commission By: Michael Wilson Chair By: Tom Kik Executive Director -2- EXHIBIT A Deportment of the Army Permit No. SPL-2010-00505-VCL DEPARTMENT OF THE ARMY PERMIT Permittee; City of Cathedral City (POC: John A. Corella, P.E.) Permit Number: SPL-2010-00505-VCL Issuing Office: Los Angeles District Note: The term "you" and its derivatives, as used in this permit, means the permittee or any future transferee. The term "this office" refers to the appropriate district or division office of the Corps of Engineers having jurisdiction over the permitted activity or the appropriate official acting under the authority of the commanding officer. You are authorized to perform work in accordance with the terms and conditions specified below. Project Description: The City of Cathedral City proposes to discharge permanent fill into approximately 2.01 acre of non -wetland waters of the U.S. and temporary fill into approximately 5.57 acre of non -wetland waters of the U.S. Therefore, authorization is required pursuant to section 404 of the Clean Water Act (33 U.S.C. 1344; 33 C.F.R. parts 323 and 330), in association with constructing the Cathedral Canyon Drive Bridge Replacement Project, as shown on the attached drawings. Specifically. you are authorized to: 1. Discharge permanent fill material into approximately 2.01 acre of non -wetland waters of the U.S. and discharge temporary fill material into approximately 5.57 acre of non -wetland waters of the U.S., in association with project construction. Corps -regulated activities within the Whitewater River include the following: Remove the existing paved low-water crossing roadway; Excavate and grade inside the channel to increase flood capacity; Construct temporary construction access roads and temporary traffic roads; Construct a drop structure with concrete lining for grade control upstream of the roadway and a cutoff wall and riprap pad downstream of the roadway for scour protection; and Construct a new bridge deck with four cast -in-place concrete pylons. Please refer to the table, below, and the attached maps for locations of permanent impacts to waters of the U.S. Project Location: Whitewater River within the City of Cathedral City, Riverside County, California. Permit Conditions General Conditions: 1. The time limit for completing the authorized activity ends on April 30, 2021. If you find that you need more time to complete the authorized activity, submit your request for a time extension to this office for consideration at least one month before the above date is reached. 2. You must maintain the activity authorized by this permit in good condition and in conformance with the terms and conditions of this permit. You are not relieved of this requirement if you abandon the permitted activity, although you may make a good faith transfer to a third party in compliance with General Condition 4 below. Should you wish to cease to maintain the authorized activity or should you desire to abandon it without a good faith transfer, you must obtain a modification from this permit from this office, which may require restoration of the area. 3. If you discover any previously unknown historic or archeological remains while accomplishing the activity authorized by this permit, you must immediately notify this office of what you have found. We will initiate the Federal and state coordination required to determine if the remains warrant a recovery effort or if the site is eligible for listing in the National Register of Historic Places. 4. if you sell the property associated with this permit, you must obtain the signature of the new owner in the space provided and forward a copy of the permit to this office to validate the transfer of this authorization. 5. lila conditioned water quality certification has been issued for your project, you must comply with the conditions specified in the certification as special conditions to this permit. For your convenience, a copy of the certification is attached if it contains such conditions. 6. You must allow representatives from this office to inspect the authorized activity at any time deemed necessary to ensure that it is being or has been accomplished with the terms and conditions of your permit. 2 Special Conditions: 1. The Permittee shall abide by the terms and conditions of the Clean Water Act (CWA) section 401 Water Quality Standards Certification, dated November 2, 2015 (issued by EPA) and June 29, 2011 (issued by Colorado River Basin Regional Water Quality Control Board). 2. At least thirty (30) days prior to initiating construction in waters of the U.S., the Permittee shall submit to the Corps Regulatory Division a complete set of final detailed grading/construction plans showing all work and structures in waters of the U.S., including dewatering plans. All plan sheets shall be signed, dated, and submitted electronically or on paper no larger than 11x 17 inches. No work in waters of the U.S. is authorized until the Permittee receives, in writing (by letter or e-mail), Corps Regulatory Division approval of the final detailed grading/construction plans. The Permittee shall ensure that the project is built in accordance with the Corps -approved plans. 3. No debris, soil, silt, sand, rubbish, cement or concrete washings thereof, oil or petroleum products or washings thereof, shall be allowed to enter into or placed where it may be washed by rainfall or runoff into the waterway. When project operations are completed, any and all excess construction materials, debris, and or other associated excess project materials shall be removed to an appropriate off-site location outside of any waters of the U.S. 4. The Permittee shall clearly mark the limits of the workspace with flagging or similar means to ensure mechanized equipment does not enter avoided waters of the U.S. areas shown in the attached figures. Adverse impacts to waters of the U.S. beyond the Corps Regulatory Division - approved construction footprint are not authorized. Such impacts could result in permit suspension and revocation, administrative, civil or criminal penalties, and/or substantial, additional, compensatory mitigation requirements. 5. Upon project completion, all temporary fills shall be removed and all temporarily affected non - wetland waters of the U.S. and adjacent slopes shall be re-contoured to natural streambed conditions. 6. Within 45 calendar days of completing authorized work in waters of the U.S., the Permittee shall submit to the Corps Regulatory Division a memo including the following: A) Date(s) work within waters of the U.S. was initiated and completed; B) Summary of compliance status with each special condition of this permit (including any noncompliance that previously occurred or is currently occurring and corrective actions completed or being taken to achieve compliance); C) Color photographs taken at the project site before and after construction for those aspects directly associated with impacts to waters of the U.S.; D) One copy of as -built drawings for the entire project (all sheets must be signed, dated, to - scale, and no larger than 8.5 x 1 l inches); and E) Signed Certification of Compliance. 3 7. The Permittee has proposed to mitigate for impacts to waters of the U.S. through implementation of the approved Long -Term Management Plan (LTMP): "U.S. Army Corps of Engineers Section 404(b)(1) Long -Term Management Plan For The Cathedral Canyon Drive Low Water Crossing Replacement (New Bridge) at the Whitewater River Project" (dated February 6, 2016 and prepared by Terra Nova Planning & Research, Inc.) to preserve 9 acres of waters of the U.S. and 9.5 acres of adjacent desert scrub habitat. According to the approved LTMP, responsible parties would be as follows: a) Implementation and compliance: City of Cathedral City b) Long-term management: Coachella Valley Conservation Commission. The Permittee retains ultimate legal responsibility for meeting the requirements of the approved LTMP (i.e., this permittee -responsible mitigation). Detailed mitigation site information is described in the referenced LTMP. Requirements for long-term management provisions are referenced in the LTMP. 8. At least 90 days prior to initiating construction in waters of the U.S., the Permittee shall submit a draft Conservation Easement (CE) or other Corps -approved protection tool reviewed by the Corps Regulatory Division. Prior to completing activities associated with impacts to waters of the U.S. the Permittee shall record the approved CE or other Corps - approved protection instrument. in a form approved by the Corps Regulatory Division, which shall run with the land, obligating the Permittee, its successors, and assigns to protect and maintain the minimum 9 acres of waters of the U.S. and 9.5 acres of adjacent desert scrub habitat. The CE must include a 3rd party easement holder qualified to hold easements pursuant to California Civil Code section 815.3 and Government Code section 65965. Long- term management tasks shall be funded by the Permittee. The Permittee shall provide monies in the form of an endowment (endowment amount to be determined by Property Analysis Record or similar methodology) for the purposes of fulfilling the 3rd party easement holder's responsibilities under the CE. The site protection instrument shall preclude establishment of fuel modification zones, paved public trails. drainage facilities. walls, maintenance access roads and/or future easements, except as provided in the approved site protection instrument. Further. to the extent practicable, any such facilities outside the site protection instrument shall be sited to minimize indirect impacts on the enhanced/preserved waters of the U.S. and buffer habitat. The LTMP shall be incorporated as an attachment to the site protection instrument. The Permittee shall be responsible for long term financing (such as a non -wasting endowment) of the LTMP and conservation easement compliance activities. A draft long- term financing mechanism shall be submitted to the Corps Regulatory Division for review concurrent with the draft CE. The Permittee shall receive written approval (by letter or e- mail) from the Corps Regulatory Division of the site protection instrument prior to it being executed and recorded. A recorded copy of the CE or other Corps -approved protection tool shall be furnished by the Permittee to the Corps Regulatory Division within one year after start of work within waters of the U.S. 9. This Corps permit does not authorize you to take any threatened or endangered species, in particular the Coachella Valley milkvetch (Astragalus lentiginosus var. coachellae), triple - ribbed milkvetch (Astragalus tricarinatus) and Coachella Valley fringe -toed lizard (Uma inomata) or to adversely modify designated critical habitat of any federally listed species. In order to legally take a federally listed species, you must have separate authorization under the 4 Endangered Species Act (ESA) (e.g. ESA section 10 permit, or a Biological Opinion (BO) under ESA section 7, with "incidental take" provisions with which you must comply). 10. Pursuant to 36 C.F.R. section 800.13, in the event of any discoveries during construction of either human remains, archeological deposits, or any other type of historic property, the Permittee shall notify the Corps' Regulatory Division (Veronica Li at 213-452-3292 or Stephanie Hall at 213-452-3410) and Archaeology staff (Danielle Storey at 213-452-3855) within 24 hours. The Permittee shall immediately suspend all work within 100 feet of any area(s) where potential cultural resources are discovered. The Permittee shall not resume construction in the area surrounding the potential cultural resources until the Corps Regulatory Division re -authorizes project construction, per 36 C.F.R. section 800.13. Further Information: I . Congressional Authorities. You have been authorized to undertake the activity described above pursuant to: () Section 10 of the River and Harbor Act of 1899 (33 U.S.C. 403). (X) Section 404 of the Clean Water Act (33 U.S.C. 1344). () Section 103 of the Marine Protection, Research and Sanctuaries Act of 1972 (33 U.S.C. 1413). 2. Limits of this authorization. a. This permit does not obviate the need to obtain other Federal, state, or local authorizations required by law. b. This permit does not grant any property rights or exclusive privileges. c. This permit does not authorize any injury to the property or rights of others. d. This permit does not authorize interference with any existing or proposed Federal project. 3. Limits of Federal Liability. In issuing this permit, the Federal Government does not assume any liability for the following: a. Damages to the permitted project or uses thereof as a result of other permitted or unpermitted activities or from natural causes. b. Damages to the permitted project or uses thereof as a result of current or future activities undertaken by or on behalf of the United States in the public interest. c. Damages to persons, property, or to other permitted or unpermitted activities or structures caused by the activity authorized by this permit. 5 d. Design or construction deficiencies associated with the permitted work. e. Damage claims associated with any future modification, suspension, or revocation of this permit. 4. Reliance on Applicant's Data. The determination of this office that issuance of this permit is not contrary to the public interest was made in reliance on the information you provided. 5. Reevaluation of Permit Decision. This office may reevaluate its decision on this permit at any time the circumstances warrant. Circumstances that could require a reevaluation include, but are nut limited to, the following; a. You fail to comply with the terms and conditions of this permit. b. The information provided by you in support of your permit application proves to have been false, incomplete, or inaccurate (See 4 above). c. Significant new information surfaces which this office did not consider in reaching the original public interest decision. Such a reevaluation may result in a determination that it is appropriate to use the suspension, modification, and revocation procedures contained in 33 CFR 325.7 or enforcement procedures such as those contained in 33 CFR 326.4 and 326.5. The referenced enforcement procedures provide for the issuance of an administrative order requiring you to comply with the terms and conditions of your permit and for the initiation of legal action where appropriate. You will be required to pay for any corrective measure ordered by this office, and if you fail to comply with such directive, this office may in certain situations (such as those specified in 33 CFR 209.170) accomplish the corrective measures by contract or otherwise and bill you for the cost. 6. Extensions. General condition 1 establishes a time limit for the completion of the activity authorized by this permit. Unless there are circumstances requiring either a prompt completion of the authorized activity or a reevaluation of the public interest decision, the Corps will normally give you favorable consideration to a request for an extension of this time limit. 6 Your signature below, as Permittee, indicates that you accept and agree to comply with the terns and conditions of this permit. (aSQ PERM E S -Z1 -1l0 DATE This permit becomes effective when the Federal official, designated to act for the Secretary of the Army, has signed below. /4/W44. 744/ Mark Cohen DATE Deputy Chief, Regulatory Division When the strictures or work authorized by this permit are still in existence at the time the property is transferred, the terms and conditions of this permit will continue to be binding on the new owner(s) of the property. To validate the transfer of this permit and the associated liabilities associated with compliance with its terms and conditions, have the transferee sign and date below. TRANSFEREE DATE 7 LOS ANGF L.FS DISTRICT U.S. ARMY CORPS OF ENGINEERS NOTIFICATION OF COMPLETION OF WORK AND CERTIFICATION OF COMPLIANCE WITH DEPARTMENT OF THE ARMY PERMIT Permit Number: SPL -2010 -00505 -KE Name of Permittee: City of Cathedral City (POC: John A. Cor ells) Date of Issuance: April29, 2016 Date work in waters of the U.S. completed: Construction period (in weeks): Name & phone of contractor (if any): Please note that your permitted activity is subject to a compliance inspection by an Army Corps of Engineers representative. If you fail to comply with this permit you may be subject to permit suspension, modification, or revocation. 1 hereby certify that the work authorized by the above referenced permit has been completed in accordance with the terms and conditions of said permit. Signature of Permittee Date Upon completion of the activity authorized by this permit, sign this certification and return it using any ONE of the following three (3) methods: OR OR (I) E-MAIL a statement including all the above information to: Timothy.W.Jackson@usace.army.mil (2) FAX this certification, after signing, to: 213-452-4196 (3) MAIL to the following address: U.S. Army Corps of Engineers Regulatory Division ATTN: CESPL-RG-SPL-20] 0-00505-VCL 915 Wilshire Boulevard, Suite 930 Los Angeles, CA 90017-3401 LOS ANGFIFSDISTRICT U.S. ARMY CORPS OF ENGINEERS NOTIFICATION OF COMPLETION OF WORK AND CERTIFICATION OF COMPLIANCE WITH DEPARTMENT OF THE ARMY PERMIT Permit Number: SPL-2010-00505-VCL Name of Permittee: City of Cathedral City (POC: John A. Corella) Date of Issuance: April 29, 2016 Date work in waters of the U.S. completed: Construction period (in weeks): Name & phone of contractor (if any): Please note that your permitted activity is subject to a compliance inspection by an Army Corps of Engineers representative. If you fail to comply with this permit you may be subject to permit suspension, modification, or revocation. 1 hereby certify that the work authorized by the above referenced permit has been completed in accordance with the terms and conditions of said permit. Signature of Permittee Date Upon completion of the activity authorized by this permit, sign this certification and return it using any ONE of the following three (3) methods: OR OR (1) E-MAIL a statement including all the above information to: Timothy.W.Jackson@usace.army.mil (2) FAX this certification, after signing, to: 213-452-4196 (3) MAIL to the following address: U.S. Army Corps of Engineers Regulatory Division ATTN: CESPL-RG-SPL-2010-00505-VCL 915 Wilshire Boulevard, Suite 930 Los Angeles, CA 90017-3401 r•• v • PALM $IU,MG$I VUN,CtPal A,APORI r r a�•u.r 1 r JO` ;Ai 'If *at. AQUA C LICIITQ 1, 1NDIAN REIQERVATIOII —isirt 71 Jf t's';'i„I L. l �Itk :. 1. -.. - _PAI.Mi'._ ,SPRINGS . .• - r►p trAuirri i'?'� • s, • IC 1 IP • • PSIrs.Vtlnv -.i.lccellol tia • •r F IL It. ACOA CALIENTE INDIAN R1 *ERVAT Projectj1, Area `` dim! 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MAP 24915 Those portions of Parcel 2 of Parcel Map No. 24916, as shown in Parcel Map Book 159, at Pages 88 through 90, inclusive, in the office of the County Recorder of Riverside County, California, described as follows: Beginning at the Northerly terminus of that certain course in the boundary of said Parcel 2 of Parcel Map 24915, shown on said Parcel Map as Course No. 7, having a bearing of North 18' 03' 47" West, and a distance of 331.16 feet; Thence, South 18' 03' 47" East, 111.44 feet along the boundary of said Parcel 2 to the True Point of Beginning, said point being the point of intersection of the boundary of said Parcel 2 with a North line of the boundary of a Conservation Easement on a portion of Parcel 1 of Parcel Map 24915, described in that certain Instrument recorded on January 20, 2000, as Instrument No. 020749, Official Records of Riverside County; Thence, leaving said boundary of Parcel 2, North 78' 32' 27" East, 1049.01 feet to a point in the boundary of said Parcel 2 of Parcel Map 24915, shown as Course No. 16 on said Parcel Map, having a bearing of North 59' 26' 46" West and a distance of 282.17 feet; The following sixteen (16) courses are all along the boundary of saki Parcel 2 as shown on said Parcel Map 24915: Thence, from said point, South 59° 26' 46" East, 37.17 feet to the beginning of a tangent curve, concave Westerly and having a radius of 125.00 feet; Thence, Southeasterly and Southwesterly along said curve through a central angle of 141'36' 31" an arc distance of 308.94 feet to the beginning of a reverse curve, concave Southeasterly and having a radius of 500.00 feet, a radial of said reverse curve through the point of reverse curvature bears North 07° 50' 15" West; Thence, Southwesterly along said reverse curve through a central angle of 83' 48' 28", an arc distance of 731.36 feet to the beginning of a reverse curve, concave Westerly and having a radius of 350.00 feet, a radial of said reverse curve through the point of reverse curvature bears North 88° 21' 17" East; Thence, Southerly along said reverse curve through a central angle of 27' 42' 42" an arc distance of 169.28 feet; August 8, 2018 drf 1 Thence, South 26' 03' 59" West, 563.57 feet to the beginning of a tangent curve, concave Northwesterly and having a radius of 150.00 feet; Thence, Southwesterly along said curve through a central angle of 40' 52' 16" an arc distance of 107.00 feet Thence, South 66' 56' 15" West, 249.11 feet Thence, South 03' 34' 52" West, 77.61 feet to the beginning of a tangent curve concave Northerly and having a radius of 75.00 feet Thence, Southerly, Southwesterly and Northerly along said curve through a central angle of 209' 34' 49" an arc distance of 274.34 feet Thence, North 33' 09' 41" East, 202.90 feet; Thence, North 63' 42' 42" East, 208.64 feet; Thence, North 07' 03' 02" East, 276.68 feet; Thence, North 58' 17' 32" West, 171.23 feet to the beginning of a tangent curve, concave Easterly and having a radius of 175.00 feet; Thence. Northerly along said curve through a central angle of 73° 35' 48" an arc distance of 224.79 feet Thence, North 15' 18' 16" East, 406.80 feet; Thence, North 18° 03' 47" West, 219.72 feet to the True Point of Beginning. Containing 18.706 acres, more or less. /1/ The above description covers all of Assessor Parcel 686-310-011 and a portion of Assessor Parcel 686-310-014. David R. aessel RCE 18731 August 6, 2018 drf 2