HomeMy WebLinkAboutAgenda Bill Item 5 City of Petaluma; California.
Merhorandu n
City Maiiage'r's'Office, II English,Street,.Petaluma,-CA 94952
(707) 778-4345 Faz;(707)178-4419 E-mail:citymgr ,ci.petaluma:ca.us
DATE: February.2, 2001
TO: Mayor and Members of the City Council
FROM: Frederick C. Stouder, City Manager
SUBJECT: Council Meeting of February 5, 2001 —Agen da Item #5
Adobe Creek Weir and Diversion Channel
The attached_.agreement was'completed the end of.this.week,reviewed by the City Attorney
and the Director of Community Development, and provided to the City Manager on Friday,
February 2nd. This was not part.of the agenda packet provided to the Council last Friday,
January 26`h. My commitment to the Council is to not include major sections of agenda items
• during the last week on a Friday prior to the Monday Council meeting.
The item, while listed last week as"Status Report, Discussion and Possible Action Authorizing
the City,Manager to Enter Into An Agreement With.MardellLLCRegarding the Adobe Creek
Weir and Diversion Channel and Directing City Management to Send a letter to FEMA
Withdrawing the City's Appeal of the,Letter of Map iRevision Upon Execution of Said
Agreement", does include possible:action. My suggestion to the City Council is for Council to
review the document, and provide whatever comments as appropriate. We would then bring the
item back for February 20th or March 5t: This would allow the public and the City Council time
to review this document. In addition, there are several items that require clarification before
final Council action.
•
CITY OF PETALUMA, CALIFORNIA
AGENDA BILL
• Agenda Title: Discussion and Possible Action Authorizing the Meeting Date:
City Manager to Enter into an Agreement with Mardel LLC
• Regarding the Adobe Creek Weir and Diversion Channel 'February 5, 2001
Department: ,Director; - ,Contact Person:; Phone Number:
Community MikeMoor , Mike Moore 778-4301
Development
Cost of'P.roposal: $0.00 Account Number: N/A
•
AmountBudgeted:,,$0.00 Name:of Fund: N/A
Attachments:to Agenda Packet Item:
1) Draft Agreement.w Exhibit
/ s
2) December 21, 2000 City of Petaluma Letter of Appeal to FEMA
3) December 22, 2000 NationalMarine`Fisheries,Service (NMES);Letter of Appeal to FEMA
Summary Statement:
Mardel, LLC, the developer of the Cross Creek subdivision at the northeast corner of Casa Grande Road and
Ely Blvd., was required by condition of-project approval to receive a Letter of Map Revision (LOMR) from the
Federal Emergency Management Ageney (FEMA) Prior to the City issuing building permits for the remaining 12
lots in'the subdivision. A Letter'of Map Revision officially changes the boundary of the 100-year flood plain and
in this case, would remove the=subject 12 lots from an area designated as 100-year flood plainon_the City's Flood
Insurance Rate Maps. The application_;to FEMA;for the Letter of Map Revision was based on the design of a weir
and diversion channel located on the, Soul side:of Casa Grande Road (on the property of the Adobe Creek Golf
• Course) and adjacent`to the main channel of Adobe Creek. On September 7, 2000. FEMA issued a Letter of Map
Revision for the 12-lot area of the Crosss•Creek-subdivision FEMA regulations provide for a 90-day appeal period
commencing from the date that the official public notice of.the LOMR appears in the local newspaper. The appeal
period formally ended on January 2, 2001 On December 18, 2000, the City'Councildirected staff to file an appeal
of FEMA's determination to issue the LOMR based on the absence of a long-term maintenance and operation plan
for the weir anddiversion-channel An appeal letter(attached) was sent on December 22, 2000.
Since October of last year, the:City,:has been negotiating with representatives of Mardel. LLC to address the
two outstanding concerns relative to''the weir and diversion channel: the lack of a long-term maintenance and
operation plan and funding to support;those efforts; and the potential for,violations of the federal Endangered
Species Act resulting from Steelhead' Trout being stranded in the diversion channel: The attached agreement
represents the outcome of those negotiations and provides for the creation of a long-term funding source for the
maintenance and operation of the weir and diversion channel and for improvements to the main channel of Adobe
Creek, upstream of the weir and diversion channel in order to improve the effectiveness of that facility and
,lessening the possibility that migrating:Steelhead Trout would become stranded in the diversion channel.
Council Priority: THIS AGENDA'ITEM'Is CONSIDERED To BE PARTOF, OR NECESSARY To, ONE OR
MORE OF TH E 1999-2000 PRIORITIES ESTABLISHED BY THE'CITY'COUNCIL.ON JANUARY 30, 1999
AND MARCH 18, 2000.
Priority(s): N/A -
Recommended City Council Action/Suggested Motion:. .
Authorize the City Manager to'execute the agreement.
. Reviewed by Finance Directory Reviewe' 1 "i :Attorne s Approved by City Manager:
Date: i f a egt Date:
,,
f! Today's Date: Revision # and Date Revised'. File Code:
February 2,2001 • # -
CITY OF PETALUMA, CALIFORNIA
FEBRUARY,5; 2001
• • AGENDA REPORT
FOR
DISCUSSION AND:POSSIBLE ACTION'.AUTHORIZING THE C1TY`MANAGER TO'ENTER INTO
AN AGREEMENT WITH:MARDEL:,LLC REG'ARDING'THE ADOBE CREEK WEIR AND
'DIVERSION CHANNEL
1. EXECUTIVE'SUMMARY:
The attached agreement•is the result.of several months of negotiations between representatives of Mardel, LLC,
the developer of the Cross,Creek subdivision and the City. The agreement is intended to address City concerns
about the lack of a long-term maintenanceiand+operation plan for theAdobe Creek weir and diversion channel
and funding for that plan, and potential exposure to violations of the:federal Endangered Species Act resulting
from,•Steelhead Trout becoming strandedi`in the diversion channel. tinder-the terms of the agreement, the City is •
required to establish a Mello-Roos special tax to be charged to the owners of the 12 remaining lots, which will •
establish the long-term funding mechanism foron-going maintenance and monitoring of the weir and diversion
channel (as the sole owner of those properties at this time, Mardel, LLC agrees to participate in the creation of
that special tax), issue the building permits Ton those 12 remaining lots, and withdraw its appeal to FEMA of the
Letter of-Map Revision (LOMB). Mardel, LLC will pay for permits;for and plans and construction of proposed
improvements to the-main channel of Adobe Creek, upstream of the weir and diversion channel,to improve the
effectiveness of the weir and reduce the potential forstranding Steelhead Trout in the diversion channel.
BACKGROUND. • .
ardel, LLC, the developer of the.Cross.Creek subdivision at the northeast corner of'Casa.Grande Road and
Ely Blvd.., was required by condition of-project:approval to`receive"a Letter of Map Revision(LOMR) from the
Federal Emergency,Management Agency (FEMA),prior to the City-issuing building,permits for the remaining
12 lots in the subdivision. A Letter of Map',Revision officially changes the boundary of the 100-year flood plain
and in this case, woul'd,remove the subject 1.2 lots from an area designated as 100-year flood plain on the City's'
Flood Insurance Rate Maps.'The application toFEMA Tor the Letter of Map Revision was based on the design
of a weir and diversion channel located on the south side of Casa Grande Road (on the property of the Adobe
Creek Golf Course) and adjacent to the main channel of Adobe.Creek On September 7, 2000, FEMA issued a
Letter of Map,Revision for the 1-2-lot area,of the Cross;Creek subdivision FEMA regulations provide for a90-
day appeal period commencing from,the date that the official public,notice,of the LOMR appears in the local
newspaper.- The appeal period formally 'ended' on.January 2, 2001,,, On December 18, 2000, the City Council
directed staff to file an appeal of FEMA',s-determination to issue,the'LOMA based on the absence of a long-
term maintenance and operation plan for the weir and diversion channel. An appeal letter to FEMA (attached)
was filed by the City on December 22, 2001.
The proposed agreement.is the result of negotiationsr:that started in'October betweenthe City and Mardel. Those
negotiations have evolved into the proposed terms contained in the attached draft agreement: In summary, they
require the following:
• Mardel agrees to participate in the creation of a Mello-Roos;special tax that will provide a long-term
funding source for'the maintenance and monitoring of the weir and diversion channel. The special tax
• will be created by the City through a:process somewhat similar to the creation of an,assessment district.
It will only be applied to the 12 remaining lots`in the•Cross Creek subdivision. The costs of setting up
and administering the special'tax can be built into the amount of the tax, so the'costs to the City will be •
minimal. Thee a mountof-the tax•will be based on a monitoring and maintenance plan that still needs to
be developed.
•
• Mardel agrees pay all costs (permits, plans, construction costs, etc.) associated with the work,required,in'
the main channel of Adobe Creek, upstream of the weir and diversion channel, to improve the .
effectiveness of that facility and reduce the potential`for the easternmost,box culvert under Casa.Grande
Road to become blocked by rocks and debris carried by the creek during a storm. The improvements to
the main channel were based on meetings in.the field between City istaff, Mardel and.representatives ah
from the'National Marine Fisheries Service (NMFS)' The+,City would'be-responsible for securing all of lip
the necessary permits to do the work in the channel. We are currently working with NMF.S staff'to.
determine the required:permits. It appears=at this time that we will need to get a stream_sbed alteration
permit from the U S. Army,.Corps of Engineers,and`.fromrthe state Department.of Fish and Game,
• The City agrees to issue:the 12 building permits`to Mardel within 2 business days of posting the bonds
for the work in the creek.ehannel. .
• The City agrees to withdraw its-,appeal to HEMA of the LOMR within 5 business,days after posting°the
bonds for the work'in the creek channel.•
• In the event that Mardel is unable to perform the work required under•the agreement, they agree to
deposit$50,000 with the City to fulfill their, obligations under the agreement This provision is based ion
the fact that the portion of the main channel of Adobe Creek where the work is required,as well as the
weir and :diversion :channel, are on the Adobe Creek golf course property. The■ City will need the
permission;of the golf course:for Mardel'to enter their property to do the work in the,channel and'for the
City'to d'o any future required maintenance on the weir and diversion channel:.We.are presently trying to
determine an appropriate contact person4at the°golf coursetto work with us to-resolve these matters: The
$50,000 amount was determined in the course of the negotiations to be an acceptable=amount to,address
periodic cleaning of gravel and debris from the box culvert bores under Casa:Grande Road (to maintain
• the :appropriate'flow of water-in•the main.channel,of Adobe Creek and thereby- allowing'the weir and,
diversion channel to work as de`signed)'over'and above'what the County road maintenance ;crews do
annually, •
3. ALTERNATIVES:.
The Council could alter the terms'of the agreement; however, because this comes at time`when the usual al
mechanisms by which these issues might otherwise be resolved (through project conditions of approval or
environmental mitigations)have passed,there is limited discretion on both•sides'';as to how significantly terms
could be changed to zbe"more favorable" to one;side or-the other, The City Attorney participated;in'the final.
round of negotiations.and'review of the draft agreement that is:now`before'the'Council. The-Council could;also
reject'the agreement;however, that does not necessarily prevent Mardel from building-the_remaining 12 homes.
Without the LOMR, thehomes'would have to be,built subject to the City's floodplain development regulations
(finished:floor level at l foot above the,100-year flood elevation), which would create a number of potential.
problems with already approved d'evelopmentplans, building heights`and their impact;on`adjoining?properties.
4. FINANCIALIMPACTS:
The creation'of the Mello-Roos:special tax on the remaining,12 lots is-intended to°address the costs;to,the City
for long-term maintenance and monitoring of the weir and diversion,channel. Othercosts associated With the
improvements to the_main channel of Adobe Creek will, according to the agreement, be absorbed by Mardel.,If
Mardel is unable to perform the°workhin thercreek-channel they agree to deposit $50,000 with the City to cover
the costs of extraordinary periodic Maintenance:ofthe box`culvert bores... •
5. CONCLUSION: `
Mardel has been a willing,,and responsive participant,in these negotiations and has worked with
Councilmembers and staff'since last,October to address the City's concerns regarding,theWeir and diversion
channel and its potential impacts. This agreementrepresents.a reasonable resolution Of these issues.
6. OUTCOMES OR PERFORMANCE+MEASUREMENTS'THAT WILL IDENTIFY SUCCESSOR COMPLETION:.
The agreement establishes`"specific dates by whichtertain,actions,must occur. It also establishes financial
7.. RECOMMENDATION:
Approve the terms of the agreement and authorize.the City Manager to sign the agreement on behalf of the City.
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giformsi2000 Agenda Bill revised 042100
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DRAFT
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• AGREEMENT REGARDING WEIR AND'DIVERSION CHANNEL
'MARDELL LLC, a California liMifed'liability company, ("Mardel") and the
CITY OF PETALUMA, a California charter city ( 'City') make this agreement
on February 5, 2001.
Recitals
•
A. In about 1990, the City of Petaluma approved a subdivision of what is
now known as Adobe Creek Golf Course and related housing
development ("the golf course property"). Asa condition of approval,
City'imposed on the developer a requirement to'donsfruct a.weir and
diversion channel adjacent totthe'bores under Casa Grande Road at the
easterly crossing of Adobe Creek ( the crossing"): In 1990,the developer
prepared, and the City approved, plans and specifications for the weir
• and diversion channel.
B. In 1995, the City of Petaluma approved the tentative map for Cross
Creek Subdivision at Mardel.s request. One of the conditions of approval
required Mardel to construct the weir and diversion channel according to
the approved plans and specifications if the developers of the golf course
property did°not.
C. Developers of the golf course property did:not install the°weir and
diversion channel as required.
D. In 1997-98; Mardel installed the weir and diversion channel according
to the approved plans and specifications: Subsequently, at the City's
request and with the`involvement and approval of the City and
appropriate agencies, Mardel modified the:weir and diversion channel.
E. Mardel•advised City that,.although in,Mardel's;opinion Mardel has no
obligation to=do so, Mardel would contribute to:a"fund to maintain of the
weir and diversion ;channel at thecrossing.
F. City, after consulting"with the National Marine,Fisheries Service;has
advisedMardel that City desires instead to^make changes in the course of
Adobe Creek. Mardel desires to comply•with City's°request.
020201 Final. - 1
•
TRIA2C •
Actions
Therefore, City and Mardel agree as folloWs: --
1 . Mardel agrees to permit'City to createa"Mello-Roos" special :tax
affecting thel:2 lot-described rn(Exhibit A hereto, provided:
a) "1 ) the special tax.shpli beforthe §-pie purpose of payinglafor
annual maintenance of the weir and diversion channel. The city.shdll,nOt
use the special tdX to pay for replabernent of the weir or channel:
b) the. City; with the assistance Of it bond counsel, shalLestablish
the speciciltax and determine theamount of the initial arinuarspecial tax.
di, the City creates the spedial tax as a legal obligation on each lot
at least 10:days befpre_Maidel closes escrow transferring title in any of the
12 lots to:a third party. Mardel shall pay all costs associated with creating
the special tax: Marciel shall be solely responsible for disclosure of the
,special taxta purchasers and other third parties.
d) if City fails to create thespecial tax on or before July 1_, 2001 ,
Mardel's obligation under this paragraph shall terminate but the other
provisions of'this Agreement shall rem mm full force and Offeet,
2. A. Mardei and City agree to:work withthe National Marine EiSheries
Service ("NMES") tokreturn the Main channel of Adobe Creek to the
Creeks approximate former course for Up to 100 yards immediately
upstream frorn'theweir and diversion channel. Exhibit A shows the
approximate forrner,courseof Adobe,Creek in the affected area Exhibit B
is:cfcconstruation:plan showing the scope of work.thatMardel:shall
undertake f the scope work' ) Mardel agrees to perform and pay for all
work necessary to complete the of work.,Mardells:work underrhis
paragraph shall complete when the city's Director of Community
Development issues a letter to that effect. The Director shall not
unreasonably withhold hisrletteroftornpletian.
. .
. B. If the City notifies Mardel in writing that City cannot obtain the •
permits or permission described in Section 3 ,City releases:dill'the;bonds:
described in Section 4, and City releases Mardel from any obligation
arising out of Section 8, Mardel shall, within 1p days after all of the
occur, deposit with City the sum of:350,000,00 for the purpose of
maihtainipgond cleaning the improvements-described in Reditai,D and
theculverts acbljatenfto those imPravernents. LMardel:sdeposit-under thi$
020201 Final 2
• subparagraph shall constitute full'perforrhance of Mandel s obligations
under this Agreement.
3. City agrees,to obtain.a) all permits for the work described in paragraph
2. A. from all public agencies required by law and b) permission from
owners of the land on which Mardel will perform the,work described in
paragraph 2. A. Marcia 'shall not commence work until:City obtains all .
permits required by law°and permission from all the owners. If City fails to
obtain all permits and permissions on or before July 1, 2004, City shall
promptly release all bonds Mardel has deposited,pursuant to this
Agreement. Within 10.days after City releases the bonds; Mardel shall
deposit $50,000.00 with City, at which time Mardels,'•obligation under
paragraph 2 shall cease and Mardel shall have no further obligation
under it Mardel shall Pay-all costs associated with obtaining permits from
public agencies. The term all permits for the work described in
paragraph 2. A." meansthe permits named on Exhibit C hereto.
4. Within 10 business days after the parties executethis Agreement,
Mardel shall post wrfh City'the following:
• A. aperformance bond'in the amount of.$60,000.00 in a form
acceptable to the City Attorney securing Mardel's obligation described in
paragraph 2.
B. a labor and materials bond in the amount^of $30;000.00 securing
Mardel's obligation to pay for labor an materials necessary to complete
the scope of work. •
By their terms, the bonds,shall expire on upon 1 ) completion of the work •
described the scope of work or 2) Mardel's deposit of the funds described
in paragraphs 2.B. or 3_`as the result of the parties' mutual determination
that the scope of work cannot be completed for reasons beyond
Mardel's control or obligation under this Agreement. City's Director of
Community Development shall release the bonds described in
subparagraphs A and B within 10'business days after he issues the letter of
completion described in paragraph 2.
•
5.. Mardel agrees that City may use funds that Mardel previously
deposited in the Adobe Creek Monitoring and Maintenance Fund for
maintenance and monitoring of the work described in the scope of work.
• Mardel shall not have any obligation to perform`or pay for monitoring or
maintenance of the work described in the scope'of work or in Recital D.
•
020201 Eincl 3
6. City agrees Jai ssue building permits to,Mardel for constructing
residences on the 12 lots described in Exhibit D?within 2 businessdays after •
Mardel posts the' bond describedlin paragraph 4. City agrees that Mardel
shall:be entitled to commence and complete construction of the 12
residences uponYreceipt of the+building permits, provided that has
satisfied all of the City's usual and;customary requirements associated with
issuance of building permits. City-agrees to.issue certificates of •
occupancy'for the 12 residences,after Mardel reasonably requests them.
City agrees not to withhold certificates of occupancy unreasonably.
7. City agrees that within 5;business days after Mardel posts the
performance bond and labor and materials bond, City will
unconditionally withdraw in writing any and,all.appeals it,may have;filed
with the Federal,Emergency Management Agency("FEMA' ) regarding,
the Letter of Map Revision described in the notice attached hereto as
Exhibit E (the=LOMR").
8. Mardel hereby covenants and agrees to, and,shall,
indemnify, save harmless and defend, the City, its agents,
and/orremployees against all claims, demands, costs, and
liabilities for damages of any kind or nature including, but-not
limited to damages for death or injury to any person
(including Mardel's employees.:and agents) or damage or
destruction to any property.of either party hereto or third
persons in any manner arising out,of or o ccasioned by
Mardel's performance of its obligations pursuant to this
Agreement whether or not contributed to,any act or
omission, active or negligent, or'otherwise, except for the
active sole negligence or willful misconduct of the City or the
City's employees: The City may retain so much of the money
due Mardel as-shall be considered:necessary., until disposition
has been made of claims or suits for damages as aforesaid.•
9. Mardel shall`procure and maintain for the duration of the
contract 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 Mardel, his
agents, representatives, employees or subcontractors.
A. Minimum Scope of Insurance.
Coverage shall b'e 'at least as broad as:
• (1) InsuranceServices Office
• Commercial General Liability coverage •
(occurrence from CG 0001 ).,
020201 Final . 4
• (2) Insurance.Services Office form
number CA0001 (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.
• B: Minimum Limitsof Insurance.
Mardel shall maintain limit's no less than:
(1:) General Liability: $1 ,000;000;per
occurrence for bodily injury„personal injury and
property'damage. If Commercial General
Liability Insurance or other form with:ageneral
aggregate liability is used either the general
aggregate:limit'shall apply separately to this
project/location or the general aggregate limit
shall be twice the required occurrence limit.
(2) Automobile Liability::-$T,000,000 per
accident for bodily`injury and property damage.
(3) ' -,Employer's Liability: $1,000,000'per
• accident for bodily injury,or disease.
• C. Deductibles and Self-Insured Retentions:
Any deductiblesprself-insured retentions must be
declared to and approved by the City. At thetoption 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 Mardel shall
procure a bond guaranteeing;paymentof losses and,related
investigations, claim administration and defense expenses.
D. Other Insurance...Provisions:
The general liability•and automobile policies are to
contain, or be endorsed to contain, the following provisions:
(1) The:City, its officers, officials,
employees, agents and volunteersare to be
covered.as insureds as:respects: 'liability.arising
out of activities performed 'by or on:behalf of
Mardel;, products and completed operations of .
Mardel; premises owned, occupied or Used by
Mardel; or automobiles owned;leased, hired or
borrowed by Mardel. The coverage shall contain
no special limitations on e:scope of protection
• afforded to the City, its officers officials,
employees; agents or volunteers. Coverage shall
020201 Anal 5
not extend loony indemnity Coverage for the
•
active negligence of the insured in
any casewherean agreement t , the
additional insured wouldbe invalid under
subdivision (b) of'section 2782at the Civil Code,
(2) For any claims,;related to this pfaject,
Mardel's insurance coverage shall be prinar-yl
insurance,as respects the City, its officers,
Officials, emplbyees, agents and volunteers: Any
insurance or selfrinsurancentaintained by.the
City, its officers-, officials, employees, agents or
volunteers shall be excessOf,Mardel's insurance
and shall not contribute with it
(3) Any failure to comply with reporting
or other provisions Of the p011CieS, including
breaches of warranties shall notaffect coverage
provided to the City, its Officers: officials,
ernpibyees, agents or vOlOnteers.,
(4) Mardel's insurance shall apply '
separately to each insured against whom claim is
made or suit is broughtfexcept, with respect to
thelirnits of the inSurer' liability:
•
(5) Each insurance policy required by
this clause Shall be endorsed to state that
coverage shall not be sy'Spenclea, voided,
• . cancelled by either party reduced in coverage
or in limits except after thirty (30) days' prior-to .
Written.notice by certified.mail, return receipt .
reaueSted, has been giVer to.the City.
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.Coveraae.
Mardel shall furnish theCity with original endorsements
effectingdoverage required by this clause The . .
. endorsements are to be signed by,a,persdn:authOrized by .
that insurer to bind coverage on its behalf The endorsements
are to be on forms,provided by the City. All endorSeMents.
are to be received and approved by the City.before work
commentes. As an alternative to the City's farms, Mardel's
insurer may provide complete; certified copies of all required -
insurance policies, including endorsements effecting the
11111.
coverage required.by these specifications.
020201 FiNal 6
G. Subcontractors.
• Mardel shall include;all subcontractorsi.as insureds
under its policies or shall,furnish separate,certificates and
endorsements for each subcontractor: All coveragesfor
subcontractors shall be subject to all of the requirements
stated herein."
10. All notices; demands, requests, and exercisesunder this Agreement by
either party shall be hand delivered or sent by United States mail, registered
or certified, postage prepaid, return receipt requested,,:by facsimile
transmission ('!fax") provided a fcix'shall be effectiveonly if the sender mails
a copy of the notice postmarked not later than the day following the fax
date, or overnightdelivery addressed to the other party as.Jollows:
Mardel : Mardel ;LLC
2552 Stanwell Drive #203
Concord, CA 94520
Attn: Doyle Heaton
Fax: 925,671 2277
City: Director of Community Development
Post and English Streets
•
Petaluma;CA 94952
Fax: 707
Notices, demands, requests; and exercises,ser:ved.as required above shall
be considered sufficiently given or served forall purposes under this
Agreement at the time the notice,,demand, or request'is hand delivered or
postmarked to the addressesishown above.
11 . This instrument constitutes the entire agreement between the parties
regarding its;subject matter. Any prior agreements, promises, negotiations,
or representations not expressly set forth in this,Agreement shall have no
force or effect. Any amendment to this:Agreement shall have no force or
effect unless it is in writing and signed by all the parties.
12: In any action or proceeding to interpret or,enforce:this Agreement,
the losing party.shall pay the prevailing;;party's actual attorneys' fees, costs,
and expenses incurred, including costs of enforcement,,in addition to any
other relief;granted. This paragraph shall apply also to resolution of an
action or proceeding by mediation,:arbitration,or negotiated settlement.
• 13. This Agreement binds and inures to the benefit of the parties and their
elected and appointed officials,-,heirs, personal representatives, successors,
020201 Final - 7
employees, subcontractors, shareholders, merribers, partners;dgents, and
assigns.
14. Each partyand,his or itscounsel have participated fully in the review
and revision of this Agreement., Any rule of construction to the effect that
ambiguities are to resolveChagciinst the drafting party shall not apply in
interpreting this Agreement.
CITY OF PETALUMA MARDEL LLC
Fred Stouder, City Doyle D. Heaton Managing
Member
Approved:etc.
Exhibit A
Fornnei COurSe of Adobe Creek
•
Exhibit B. 110
Construction Plan/Scope of Wbrk
Exhibit C
List of Permits - •
. _
Exhibit D
Lots Affected by ThisAgreeMent
Exhibit E
Notice Regarding LOMR
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. . . .
• • •
020201Final 8
EXHIBIT "A"
FORMER COURSE OF ADOBE CREEK _
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•
FROM : GODFREY ENGINEERING PHONE NO. : 707 5759645 Jan. 0212001 11: 13PR1 P2
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• EkHIBIT "B"
CONSTRUCTION PLAN/SCOPE OF WORK
I-kiJr' : LiJUF HEY thlalNEERJ NG FH_fE NO. : 417 5 e513845 Feb. 02 201:11 1:_:U51-1,1 F'2 ,
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F Riji. : IF..4-r.tY ENSIttERIVIS. .PFILNE NO. :r 707 5759645 Tan_ .77 7.cirli 69:,,rt..: r-2
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• 1127101
C‘lit,,
Th/ESCRIFITION --- —— • .
•
UNIT .411.901ThIT— .
NEI
imRieg
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a CREEK
. • - .
1 L.S. MOB.- DEMOB $3.01.r...L'S
• .
2 • 5 ZuV," Exeation a Placement of existing soil $ ,U00.0Ø $15 BOO • •
.3 7a7 -rnhu. croa°fib
$150.00 $43,8a0 • , •
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• •
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•
coNsTRucricau ESTIMATE • TOTAL
• .
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• •
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_
• 1. r.altraelte Ita.ial tin,unappfuvea Estimated Site Plan •
. .
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' .
2. ThIsOothWhin ritiecont Irr!igit,.,.v...:11 trtrns as:-
'
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a. ContinUencies. •
. . .
1:tt Finnnoe,tharges
. .
' o. 'Cost Increases beyond the present.
•
4
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. •
Deyeiriiptriont.;tios:n-,;:y i;;;;„-aaa,';ai aay
Sclioi3iinitiarii, ' . . . •
•
Other Ertaineerina,dinang sans)iirant.a.ect
Ibilibbaj:
Labor,•Arlateriaf,:Perfitrthance andior other Bonds
„
• . :a. 1.;:usia(for.. . . .
A'ali;:afar:r46-te-g:h.....utt..mi ler SubeNviskin
. raa:riCiatii; ii:;:,.....(66,-,....—
3 Thisestmatelf prepared as a guide until anct.i -subiact to orksitile(tarns.
It nas neon prepared to a standard of accuracy which to the bes1 of our
knowtedgeOthl'painerriero is lutficlent to satisfy aurunaerstandmigol the. ..
. •
uf,tros,:tiZoNa■-e. Gistir■ry.Erfairjeertrai mesas no warranty.
either eyprOSSeil nr in-T1i-nr;i5;tolflf:t'^aurat.,-;07 traS iNS-biTaiis.
•
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. ' PliEfikRED BY
17/1.01.5FRE I iNGiiiiienlIN517 .
%Aril%AI 1141Pril.91Ree ei.741.:24S
SANTA RoS/1,c.1., o!Aril • , .
•
.(e07).-55-5-5ist
. .
. . . . .
• . . . .
• _
• -
EXHIBIT "C" •
LIST OF PERMITS
U.S'. ARMY CORPS OF ENGINEERS NATIONWIDE PERMIT
STATE OF CALIFORNIA DEPARTMENT OE FISH.AND'GAME STREAMBED
ALTERATION PERMIT
COUNTY OF SONOMA EXCAVATION PERMIT
•
EXHIBIT "D"
LOTS AFFECTED BY THIS AGREEMENT
• . FROM : GODFREY- ENGINEERING PHONE NO. : 707 5759645 Jan. 02 2001 11:.14RM P3 '
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• EXHIBIT ' "
NOTICERE CARDING;LETTER OF MAP REVISION (LOMR)
•
FROM : M.L.Hudson PHONE N0. 707+763 1494 Jan. 02 2001 ii I3SRM 'P2
SCHOOLS ' a otm rl, , .., ' -' :-. .'
C• Oka Adobe School District _ Mendocino Tanta Rosa _ $12/hr.Mus
845 Crinells,Petaluma Pleas uce fingerpt
1 CHILDCARE ASST.$g,65/hr.. SECRETARY, • Dry Creek Please,sett our ad under FAX cvr IV/r:
BUS DRIVER;$12.02/hr., cert. Gaming Gommisswn.PT,M-F ASSEMBLER TEACHERS
required/will balm. Call for Indian Preference Ace $10/hr.:Tall.
T application 765-4327,• 'Open FAX resunc 707;8573047 MELSON'i�STAFFINC idler 8 pm 5
41 until filled.EOE Gaming Commission
� a
PUBLIC NOTICE ,~;.tkt jr0,i� 5yfii71., 4./ it �v .w°,,. .
sit•. .
- �..�n.__ _ _ ,
M s - --- interested p
eel. 7 S W 7ll00B±1G70DtS leis. No have waive(
bk r ONLLEV T• NS MADE THL UNINCORPORATED OF BASE, -am719s393 You in He. Hungry 4
E P FL000 ELEVATIONS:FOR THE UNINCORPORATED AREASa OF .lT s sae Yos Me a pdara!Unos.A id to the pr
pant SONOMA COUNTY.CALIFORNIA,UNDER THE-NATIONAL.FLOOD Deed a TTin' area 3119381 tot et , indr an e t
• `dla... . INSURANCE PROGRAM _ ada:d a pat asa.,0,tar naea,an ar Inisrealed p
ill On April 2,'1891 the(Federal Emergency„Management pelr�tigrettmtad�. lse el a Xce Uon Id the
1 lack torpor identified Special Flood HazaM Aiforni fi through In ilia unit• tp25rApe s 1L90.ALL laum* goof eaut•
edict "of a Floted areas of Sonoma County,).Thernia,throu resuance ow I,CC., m del i should not
T, 4 of a flood Insurance Nate�Map(FIRM) The Mlfigetlon Directorate alarm add am patent an drive
�fentaf. • has determined Netmodthcatlon of the elevations 01 04"acid haw rentroal
1901;0114079;i 01l pace d:oNdel wiA be rte dl'
\' 'S Mg a f.percem chance of being'equalod or exceeded In any given Ibmoatro pled the cower
al 8:45 e.n
year(base hood)lorcertain focahons io.s( community
Ise is spore- a`6aom cam:am d Caserta toealed a!
Ip Ilona lot ' '
'commumy. hale to bah. radars .daWodi IF,you ID
Organ` The •
changes are bein made pursuant to Section 206 of the ;egsialae a Leer aam ii psi sAra- mg"of;Hui
��rpa m alas item
'tempi,' 'Flood Disaster Protechpn AcFof1973(PUbpc Law 93 234)3no are • Imya�9m.lAaad S1ab1;Al:da appear;etd!
b in accordancewitn'':the`Netional`;Floodilnsurance Act of 1968, as �,rp natOrTaasar®b be Aarm>ae3ai ;our o bjec
-MEW • amended(Title'Xlll.oi the Housing and Urban;Development Act Of ` &adnrqpS Agikyvdmn Or'Mali Mae obi ions'
,get. 1968,Public Law,lf0.448),42 U.S.C.4001.4128 and 44 CFA Part 65. G el we ids tad lamest we b e
.. .ime Wn area saes ass etas in era the,hearin
ry QC- A hydraulic analysis was performed 10:incorporate updated .a ty chase in.car Nw,ady ma'aw may be in
topographk data;,channel and culvert tImprovements,'berm`con• jt..d t WO�-ad dw Miele adtorney-
T
MI atrucllon;and construction.ul a_diversion channel`along.Adobe 082030:Ira area:•e Sten am ors IF YOU A'
'Eye
'Mont so ' • E...Creek. m}vote stream toe rotes in l deer ape i upstream Width tam 1y �rgmam;d tee-d lae;aN 'contingent eased
son '. • 'an .Boulevard South:Thu has resulted In a In SEPIA width • 4451 t�eo stew robe s panted a eat .caries`ycc
y 1451-N�s Awaa Sew P®CpQd m
bon.l.. and:increased and.decreased°_BEES for Adobe,Creek and estab- s6o07 7ti 4oroncred twee,aeons with theycr
MEDI lishmeni of an SFHA lot Adobe Creek Diversioi-Channel:The table oy taw ire rimramtas deb spas to the;per
tech below•indleales existing and modified BFEa for selected locations - e appointed
along the attectedlenglhs-ot.lhe al00dmg.6ou_rce(s)Cited above. dt baba owawn a.ranagiopamea tour iiwnil
)sin's Existing 8FE Modified BFE a-sweartirew*i tea Po e nr, first issuer
Issuer
sues micpraariom,m erammwanrr -el vlded In
• oft,I Location (aver)` Ut?atY tonal be rd S) o.ed by sea bead d California
• .MED ' Just upstream of Casa Grande tlr0.c x6 s°e0w•m aarmd n ' ti -s•for-'f
.remit • Road treating approximately - 'ssmelsf:twamm.atary uirae atii
ewe dt.dot�dten.Sam.Or9mmra *We bet. •
belie 2800'feetupstream of Ely apa13094 as atom adel Mined the hear m!
Boulevard South,. • • 74 75 brie by ®e bed,14. The4>nl YOU MF
amaed rasndPiaos deer dd�i
`:Mi
Approximately tioneeet upstream _ ton swine Pe ricotta to tett arc .kept�byab
Chat' of above-mentioned Casa,- iaseaaa's tidnaas fall ows®es ad parson IN
file" , t Grande Road,crossing 76 75, swamped be ate SS ums�pt ai „. ' may,fi
defa. des pam'a;tam a'Rm, t:a9'fro
ceps' •National Geodetic Venlcal Datum;rounded;to nearest whole foal aa�y,yperie oars d aw Ira® mil Aequt
ry-o' ,Under the-.above mentioned Acts of 1968 and 1973, the lee smarted arrAiiaed b eeimda- et the film
—o� . Mitigation Directorate must develop cnc�rtatot ldodplain manage• i0 C ia,Slek,am t vl0er woe m appraisal'
1! ment.'To participate hi the National Flood'. Insurance Program Dail /d.Beam'To set Timpada tnyipetilit;
Pert (NFIP), the community mist use the modified BFEs to administer •.spied.aieadsed Hake d':MCC art aided in
sbor �tlio`floodpl• .....nagement measures of the NFlP These modified '+at+et b m lb be ramr0od°0a etas) peituesf f,
'edam PaW4 a. xi
'l er eremium will also be used to eatculsa the appropriate flood Nit the doe tom a8o8,ga,Ar,®rwn Sanest LC 3 is quest f!
and ' premium rates fornew Ion extgs and their contents andnt .the sac; R lamttlung Sa Sates:L'.LC 3
?lea and layer of Insurance on existing bulldIngs•and contents. - Ftd M°pn May�^°�•`G'4t7o7 )d JAMI;
331, lereder ?Scrams LC.C1 is'a
°and - Upon the second publication of notice,of these changes In �r otteda n aeon a d"e' LAW Of-
thrs;newspaper,�"any;Person has 90�daya,ln,which,he.or she ten. Nb Hs'r°tp°rt'sa, tt�r0rtoq°'i to go, STONEI
M. request tnrough the Chief Eastlake OHrcer�of the community,shat =aw �-7riemer,24 Imamate 512 Wes.
'e^ . - the -Mitigation ptrectorate reeoneidor the determination. Any.• -R®CidUt4{6731966 Pi393a1 tON 512 We
ca.. � request for reconsideration must:be based on knowledge of "tart tat moms:101841
7 ; changed condillonaor new,;acleotlfic•or technical data., Inlet: 526948-Pub.Oct.4,it.. Aflame:37 1 Bated parties are oii notice.that until ilia ebday'period elapses,the 14�2000 .•3u. 522flame,
Mitigation Dnecterate'e determination to modify %ha`SCEs may - •_„
I.• atoll be changed. • NOTICE OF PETITION '
N' • Any;person having,knowledge`or wishing to comment TO.ADMINISTER
these changes should Immediately'notify: • ESTATE OE,.
° .The Honorable Mike Reilley' 'VERA E BRODE,RSEN !NAMI, .
• Chairman Sonoma COUnty CASE NO 071.753 Flu
Board,of Supervisors To all heirs,beneficiaries,,• .... cre- SONON
• 575.0- 'Santa Rea 'CAo,407 100A Oilers,contingent creditors,and at, 2508
c t Sonia Rosa;CA:B54O3 persons yfho may otherwise be Santa Hoi
211 'intarestediin the will, or estate re snare
i 513870-Pub:Sep._27,Oct.4 2000 -_ , n ji
- _ a both, VERA E. BRODER- ;dwner(s):
t
N -FICTITIOUS,BUSINESS THE';BATE.IT;WAS FILED IN THE SEN. -.1)L Wit
1 OFFICE OF THE COUNTY CLERK A PETITION FOR PROBATE 2508.Slot •
FILE STATEMENT ANEW FICTITIOUS BUSINESS has been filed by JULIANNE 1 Rosa CA'
'J I FILE'NO,:003515 ;HALL;in the Superior Court of. 2 Rk
f ( - NAME;STATEMENT MUST BE )
GLENH_W00D VINEYARDS •FILED BEFORE THAT TIME.:TNE California;County of Sonoma, t930'Sen
THE PETITION FOR PROBATE' Rose;CA
located at, 120' Hoff Rd., FILING OF THIS STATEMENT requests that:JULIANNE-HALL �� �Chj
11 Kenwuod. CA 95452 is'hereby DOES;NOT OF:ITSECF_A--.-- he a000lnud'as oeraonal'repre- I and:a,mi
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CIT. Y OF PETALUMA
?n`t�p'/ POST OFFICE Box 61
1.8 5 e, • PETALUMA, CA'94953-0061
E.Clark Thompson - .
Mayor December 21,:2000
Janice ca Micha l nealn CERTIFIED MAIL.
Michael Ile. .
Matt.Maguire - RETURN-RECEIPT REQUESTED
Bryant Moynihan
Alike e O'Brien r)'B 7099 3220 0004 8880 6527
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Pamela Toriiatt
Go,mcilmentbers Matthew B. Miller, P.E., Chief
Hazards:Study Branch
Mitigation,Directorate
Federal Emergency Management Agency
500"C" Street
Washington, D;-C.. 20472 •
RE: Case No 99-09-220P; Request` for Reconsideration of Letter of Map
Revision'for Adobe Creek
• Dear Mr. Miller:
The City Council of the '.City of Petaluma, as a result of deliberations at its
. meeting of December 20; 2000, hereby rrequests, the Federal Emergency
Management Agency to reconsider its determination made through a Letter of
Map Revision'(LOMB) dated September 7; '2000 to revise the Flood Insurance
Rate Map and +Flood Insurance Study for "property, located in the City of
communuy Dereropmety Petaluma in,the vicinity of Adobe,Creek, upstream of the Ely Boulevard South 1
Department
11 English street crossing. Pursuant to the'notice dates specified,in the September 7, 2000 LO_MR. I
'rlanm+a (.'A'94952 - (attached), the 90=day period during which this request can be made concludes
`
on Tiiesday,,Janua"ry'2, 2001.
Planning Division
Phone! 07J 778-9301
ra•(707)778-449s The basis for the Citys-request for reconsideration!is>that contrary to the City of
h ar' Petaluma's December 10,_ 1999. letter to you (attached), no formally approved
pronningLart,petakunaCa.us
tong-term maintenance and ,operation plan. for the Adobe Creek diversion
Building.Division channel and weir presently exists. Without a maintenance and operation plan
s
Phone 1707) 778-4302 and--,designated funding to implement said plan, .the:City of Petaluma is unable to
Fa,1707) 378-4498- assume the responsibilities of-maintaining the flood-carrying capacity of the
biiifarnggc,pe,alumacans. channel as'required by the■ational Flood Insurance Program regulations.
Housing Division This request for .reconsideration is made without prejudice toward the already
Phone t?nth 778-4301 ,approved design and construction°,of the ekisting Adobe Creek diversion channel
Fox(70 ) 778-1498
s Mail and weir. The City of Petaluma is Presently working diligently with the LOMR
urarng;.�i.ceperartl,naLa:ns applicant to develop.the=required;long-term..maintenance and operation plan for •
the diversion channel,. as well as a suitable funding mechanism for
• „r implementation of an approved plan . Once the City has a firm and legally
binding commitment from the applicant to fulfill their obligations for long-term
EQUAL HOUSING maintenance ce and necessary funding for the diversion channel and weir, we
OPPORTUNITY - -
intendto withdraw the request for reconsideration.
If you have any questions' or) require additional information, please do not •
hesitate to contact me. •Sincerely, I --
'
Michael C. Moore
Community Development Director
c•: Mayor and City Council
City Manager
City Attorney
•Doyle Heaton, Delco Builders
Judy Davidoff, Baker '8,c McKenzie
Spike Godfrey,'Godfrey Engineering
Gary Stern, National Maiine Fisheries Service
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yrt w
.� �, I ° �i 0 2 2001:
• UNITED STATES DEPARTMENT OF COMMERCE
r' National Oceanic and Atmospheric Administration
P NATIONAL MARINE FISHERIES SERVICE
��"••n a. •
Southwest Region
.' 777 Sonoma'Avenlle;Room 325
Santa,Rosa; Calefornia`95404_
RECEIVED
DEC 2•2 ;2000 JF/S1 o : s
COMMUNITY DEVEIOP.MENl
Matthew B. Miller, P.E., Chief-
Hazards,Study Branch. ��� �
_Federal Emergency-Management Agency JAN 'd 2081
Washington, D.C. 20472
• MAYOR
Dear Mr. Miller: .
This letter regards the Federal.Emergency Management Agency's (FEMA) revision of the
effective Flood Insurance Rate`Map,(FIRM)�and Flood Insurance Survey (EIS) report for the City
of Petaluma (Case,No. 99-09-220P). In a letter dated,December 4, 1998, Mr. Mathew L.
Hudson, Attorney at Law, requested that FEMA revise the FIRM to show the effects of culvert
improvements along Adobe Creek at the Casa,Grande Road crossing approximately 2,800 feet
upstream of Ely Boulevard South (Crossing 1); construction of a berm from just upstream to
approximately 900 feet upstream:of'Crossing 1; construction of Adobe'-Creek Diversion Channel
0 from just downstream of Crossing l to just upstream of the Casa Grande,Road crossing
approximately 4,800 feet upstream of Ely Boulevard South (Crossing'2) and construction of a
diversion weir just upstream of Crossing 2. This request also;included updated topographic
information for-Adobe Creek from just upstream of Ely Boulevard.to just downstream of
Crossing:l.. FEMA has.completed review of the submitted data and revised the FIRM to modify
floodplain elevations;and`floodpiainboundary delineations:of the flood having a 1-percent
chance of being equaled or exceeded in any given year (base flood)along Adobe Creek.
The National Marine Fisheries Service (NMFS) is responsible for the management, conservation,
and restoration of anadromous fish,species`listed as,threatened or endangered under the
Endangered Species Act (ESA)'of 1973, as amended (16-U.S.C. 1531 et seq.). Available
information indicates the threatened Central;California Coast steelhead (Oncorhynchus mykiss)
occurs in Adobe Creek:'and the,areas subject to flood hazard map'revision include designated
critical habitat for this species (65 BR 7764).
Based upon review of your September 7, 2000,,letter to Mayor Thompson of the City of
Petaluma, the:revised FIRM based on the actions,presented in Mr. Hudson's letter of December
4, 1998, may adversely affect steelhead'in Adobe Creek and/or;designated critical habitat.
Pursuant to Section 7(a)(2) of the ESA, all-federal agencies-are_required "to insure that any action
authorized, funded,.or carried out by such agency is not likely-to jeopardize the continued
existence" of any endangered orthreatened"species or result ih the destruction of critical habitats.
If an agency determines that action "may affect" an endangered or threatened
•
species, the agency-must formally consult with•the relevant Service,.the U.S. Fish and Wildlife
Service and/or NIVIFS, depending on the species that,are affected by the proposed action.
• r,,,-:-.7.0.,.,:,,,.. .MOW,.\
. 1u }> 1
Based on our review of the Letter of Map Revision(LOMR) and the associated flood control •
facilities, the NMFS is concerned about potentialyadverse effects to steelhead and designated
critical habitat associated<withae Adobe Creek,Diversion Channel. High flow events-=in
February 1999,,demonstrated design problems with The diversion weir and channel. Several
steelhead were stranded and lost due to failure of the diversion weir and scouring:in the diversion
channel. Although NMFS staff participated imthe redesign of the diversion weir and channel,
concerns for steelhead iand theirhabitat remain. Specifically,the diversion channel may convey
flows:at lower flow regimes than designed which can result in additional stranding of juvenile
steelhead and degrade habitat;conditions:in the natural channel. NMFS•believes,tlese issues
• should,be addressed through some channel modifications at the diversion weir and an effective .
monitoring and maintenance plan. • .
To date, none of the`flood control'facilities constructed within designated critical habitat for the
threatened Central California Coast steelhead in Adobe Creek have undergone formal ESA
review by the NMFS. Neither the Army Corps of.Engineers•nor 1•EMA has initiated Section 7'
consultation with the NMFS;for these facilities`and,it is,likely'that,unauthorized take of
threatened`.'steelhead will continue,to.occur with the existing`channel configuration::, Therefore, I
recommend FEMA reconsider the determination made by this LOMR until,section 7 consultation
with the NMFS has been completed. 1•±MA can",initiate consultation'with the.NMFS by a
Written requestlto:Dr"-Rebecca Lent, Regional Administrator.at NMFS, Southwest Region,
501West Ocean Boulevard, Suite 4200, Long Beach, California, 90802-4213. Please provide a
copy:of your letter requesting.consultation and all supporting documents to the NN FS Santa . .
Rosa office at 777 Sonoma Avenue, Room 325, Santa Rosa,California 95404. Through,section
7 consultation,NMFS, fEMA, and the City of Petaluma may exchange information, analyze
effects of the proposed action, and develop plans•to avoid, minimize, and--mitigate potential,
impacts:to steelhead or designated critical habitat;, Ifthe impacts of th'e project can be,avoided or
mininized;to,the.point where steelhead Wilmot be adversely affected, consultation maybe
concluded-informally. • -
If you have questions regarding these,comments or need additional information regarding section
7 consultation, please contact Gary Stern at (707).575-6060.
• .Sincerely;
Patrick`Rutten •
Northern California Supervisor •
•Protected Resources-Division
. cc: Calvin,Fong, COE San Francisco District
Jack Eldridge,FEMA
Jim Lecky, NMFS Long Beach _ ' •
Rob Floerke, DFG Yountville
Ken,Sanchez, FWS
. Honorable'Clark Thompson, City of Petaluma
flu
JAN D 3.2uu1
eon
`� 4•�^. UNITED STATES DEPARTMENT OF COMMERCE
- 4..i National Oeaanic'and Atmospheric.Administration
.' NATIONAL MARINE FISHERIES SERVICE RECEIVED
Southwest Region •
777 Sonoma Avenue,Room 325 JAN d " 2001
Santa Rosa, California 95404
MAYOR.
DEC 2 2 2000
F/SW03:GRS
Calvin Fong
San Francisco,District, Regulatory Branch '
U.S. Army Corps of Engineers; '
333'Market Street ..
San Francisco, California•;94105-2197 .
Dear Mr. Fong: ,
This letter is in regard to several'flood,control facilities constricted since 1997"on.Adobe Creek
near the City of Petaluma, Sonoma County,:California. During this period,the following
facilities have been constructed in'and,along Adobe Creek: culvert improvements at the Casa
Grande Road crossing approximately 2;800 feet upstream of Ely Boulevard South (Crossing 1);
construction of a beiui from just upstream to approximately 900 feet upstream of Crossing 1;
construction of Adobe Creek Diversion'Channel from just downstream of Crossing 1 to just
upstream of the Casa Grande Road crossing:,approximately 4,800 feet upstream:of Ely-Boulevard
•, South (Crossing 2); and construction of-a•diversion weir justupstream of Crossing 2. Based on
these new facilities, the Federal Emergency Management Agency (FEMA) has revised the Flood
Insurance.Rate;Map:to modify floodplain elevations and floodplainboundary delineationssof the
. flood having a 1-percent chance of being:equaled or exceeded`in any given year (ba e flood)
' along Adobe Creek. .
The National Marine Fisheries'-Service (NMFS) is responsible for the management, conservation,
and restoration of'anadromous fish species,listed'as threatened`'or endangered under the
Endangered Species Ac •(ESA) of 1973, as amended (16 U.S.C: 1531 et seq.). Available
information indicates the.threatened Central California Coast;steelhead(Oncorhynchus mykiss)
occurs in.Adobe Creek and these recently?completed flood control facilities have been
constructed within designated critical habitat for this species (65 FR 7764). .
Based upon:site visits to Adobe Creek by Nhi1FS personnel and other available information, these
facilities may adversely affect steelhead in Adobe Creek and/or designated critical habitat.
Pursuant,to Section 7(a)(2) of the ESA, all federal agencies are required "to insure that any action
authorized,funded, or carried?out,by such agency is not likely, to jeopardize the:continued •
existence" of any endangered orthreatened species.,or result in the destruction of critical habitats.. : '
If an agency determines that its proposed+action "may affect" an endangered or threatened.
species, the agency must formallyconsult4itdthe relevant.Service,the U.S. Fish and Wildlife
Service and/or NMFS, depending"on the ispeties thar are affected by the proposed action.
• Specifically, the NMFS is concerned about potential adverse effects to steelhead and designated
critical habitat associated with-the Adobe Creek Diversion Channel. High flow events in
1,pM
af mom'
' fir, C , ,
is
, ,.,.
February 1999;demonstrated design problems with•the::diversion weir;and channel. Several •
steelhead were stranded and•lostdue•to failure of the diversion weir and scouring in the diversion
channel. Although NMFS staff,participated in-the redesign of the diversion weir and channel„
concerns:for steelheadand their habitat.remain. The,div:ersion channel mayconvey.flows at
lower flow regimes than designed which can;result in the stranding of juvenile steelhead and
degrade habitat conditions in the natural channel. NMFS believes these issues should be •
addressed through some channel modifications,at the,diversion weir and an effective monitoring
and maintenance,plan. .
To date, none of the flood control:facilities constructed in,Adobe Creek within designated critical
'habitat for the threatened;;Central California Coast steelhead;have undergone formalkESA review
by the'NMFS. Neither the Army of Engineers,;(Corps) nor FEMA has,initiated Section 7
consultaiion with Il facilities it jy unauthorized take o
f
threatened steehe d w continue occur with theexistin g channel configuration B y
letter
• dated December 21,.2000, to FEMA, the-NIvIFSsrecommendedTEMA reconsider the -
deteiminauon made bythe-Letter of Map Revision until`section 7 consultation with,the'NMFS
has been completed. Your;assistance is requested'to ensure that;either the:Corps+or hEMA
initiate section,7 consultation.with the NMFS'to addresstthese issues. The.diversion weir iust
upstream of Crossing 2 is below ordinary high water^in Adobe Creek and is subject to.-the Corps'
jurisdiction pursuant'to Section 404 of the Clean Water Act.
Rebecca Lent, Regional at NMFS, South the Regio , 5 a written request u• va
Either the Corps!or FEMA itiate consultation with
Regional west Region, 501 West Ocean!Bouleyard; •'
Suite 4200, Long Beach,:California, 90802-4213. Please provide a copy of the letter requesting
consultation andcall supporting documents to the NMFS Santa Rosa office at 777 Sonoma .
Avenue, Room'325, Santa,Rosa, California:95404. Through section 7.consultation,,NMFS,'
FEMAICorps, and the'City of'Petaluma may,exchange information, analyze effects of the
proposed.action, and:develop plans Co avoid,.minimize, and mitigate potentialimpactslto .
steelhead or,designated"critical habitat. If the impacts of the project:can.be.avoided or minimized
to therpoint where steelhead will,not be adversely affected; consultation may beconcluded
informally:
If you have questions,regarding these comments.or need additional information regarding section.
7 consultation„please contact M . Gary Stern at (707)•575-6060. •
•
• Sincerely
•
• Patrick Rutten
• Northern California±Supervisor •
Protected Resources Division
enclosure •
cc:, Matthew Mi1leI;,FEMA
. Jack,Eidndge, MA.
Jim Lecky,;NMFS Long Beach
Rob Floerke,"DFG Yountville
Ken Sanchez, FINS
Honorable_Clark Thompson, City of Petaluma •
•
•
•
aw City of Petaluma, California
• a
�z� City Manager's Office
1 English Street,.Petaluma CA 94952
iasa'
(707)7784345 FAX(707)778-4419
FAX' •
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1327 I Street
�� Petaluma,;CA 94952
A (707)'763-9336
• Feb. 5, 2001
From: David Keller:
To: Mayor Thompson 4 PI
Members of the City Council
City Manager Fred Stoud'er'
, City Attorney Richard .Rudnansky
RE Draft Agreement with Mardel Lte regarding Adobe Creek
Weir and.,Diversion' Channel' - Agenda #5, Feb. 5, 2001
Dear friends:
The proposed draft agreement is woefully deficient, and
should be rejected as..proposed': There are significant
unfunded and unclari"tied liabilities that this agreement
passes on the the, City and its;, taxpayers, to endangered.'
species and the environment, and the agreement should not be,
ratified until such risks and liabilities are resolved in
public. As presented, the risks are not be acceptable to
the taxpayers of 'this City.
The Citytstill Doave any demonstrated and signed
City v
j to""perfarm work or have access• .to
the ".flood control project" -for maintenance or repair on;
lands which are Owned by a third party, the Adobe:•Creek Golf
Course, which is also located outside the City limits, Where
when, and under what conditions would it need- such access?
Staff claims "we are presently trying to determine an
appropriate 'contact person at the golf course to work with
us! to resolve these matters" (p2) . Presentation ,of the
Mardel agreement is meaningless and harmful CO the City's
interests without an agreement with the golf course owners.
What if the Golf Course owners refuse access or liability?I.
What if they want, say, $400,000 for such a maintenance, and
construction easement .in perpetuity? Who pays?. ,Would we,
condemn? This agreement allows, completion of the`i2 homes
and guarantees the City grant occupancy permits, even. if no
such agreement is reached with the Golf Course owners, or
even if the City has substantial costs in the future_
Further; Doyle Heaton promised in November that °he would
provide the City a copy of his current, private, agreement
between Mardel and the Golf Course; this has not been done.
what is the City's role, if any.; in the agreement?
Does the City have authority to perform maintenance outside
City 'limits? Please, cite law giving it this' authority.
Where is the monitoring and maintenance plan for the
project?' What are the inspection And reporting
ft 07M-5-OCR:EL 1 l;d10 elb
• .6/ t/cro
•
2 . The City of Petaluma ,has not received,. reviewed or
approved any maintenance and operation plan for the bypass
channel, ad'required by /BMA,
3. There is no financial plan in place to ensure the
, , _
maintenance in perpetuity by any public agency of any such
structure.
4. There is a. loss; of floodplain storage, resulting from the
filling of designated floodplain for twelve residential
development pads and lot MIA . This is not aecoMModated in
storage elsewhere, or an additional stream capacity. The
displaced storage as now directed to the golf course and/or
downstream homes and .Streets-
5. The Adobe Creek, channel capacity 'downstream of the site
and displaced flodd storage is insufficient to convey
increased flood flows within the banks, due to instream and
. .„- .
bankside vegetation, channel cross-sectmon. This is likely
to produce additional flood damages. to downstream property
owners and the public roadways. Any ,mOdiffeations to the
Channel and vegetation Must take account at steelhead and
Other speciea tabitat' and corridor needa-
6. The high-water bypass channel will always fail, due to
large sediment bedlonds and other factors not addressed in
the design, leaving the main channel as an abandoned oxbow.
The bypass (see Map, #29 will 'inevitably capture high
flows, as intended, during storm events in the future; The
reduced remaining Streamflow energy will then be unable to
convey the full sediment bedlOad. The -rearming abnormal
deposition (large Cobbles and graYele). sill repeatedly lead
to rapid blockage of the full flow of Adobe Creek, diverting
and capturing it 'virtually entirely within the bypass
located on Adobe Creek Golf Course,.migration periods, leaving the
Original Channel :as an abandoned oxbow (Map, #13) . [This is
confirmed in conversations with Betty Andrews, hydrologist,
„ .
at Phil Williams Associates.]
The entranceweir (Nap', #C) to the bypass is cut into
the outer bank Of Adobe Creek at a 900 turn in the creek,
just above the twin barrel culverts (Map, #D) that convey
normal flows under Casa Grande Ave. Storm flows carry a
Significant bed load of sediments and debris dewn from
Sonoma Mountain and its feothills'. When a portion of the
flow is diverted as waters rise over the bypass weir, the
remaining energy an the stream s reduced, thus dropping the
bedload just downstream of the weir as a large cobble and
gravel bar (Map, #BY - which happens to be the location of
the twin barrel culverts. The culverts will, therefore,
always tend to clog, increasing the Stream ,elevation until
all of the flow is captured in the bypass Channel - Purther,
the bypass channel will *inevitably capture, most or all of
the streamfloW, as it is a shorter, lucre direct path
downstream; thus the abandoned oxbow. The newly elevated
FEB-03-21All 17:.21
6 h ioa 3
and, armored weir haS already been overtopped by several
inches of water during a small (‹t year event) storm in Feb.
2000.
The bypass channel, will become the new Adobe Creek,
leaving the original channel as an abandoned oxbow.
7. The return flow from the bypass channel is incorrectly,
designed, and will result in increased sedimentation of the
laver-road Culverts .
The- return flow fromthe bypasi back to',Adebe Creek
_ „
comes downa -riprappeddiacharge channel (Map, #F) at
approximately 75-$0v angle to the creek. This produces a
great deal of turbulence between the two flows The
turbulence ,causes additional 'sedimentation just upstream as
the flows slow down. This was demonstrated in Feb. -1998 by
the large sand and gravel bar that formed in and above the
lower three barrel culverts under Casa Grande Rd: (Map, #G)
Steelhead4111 always be stranded in the bypass Channel
as water levels recede.-
As the stormwater-elevated creek flows through the
bypass, spawning steeibead = a listed endangered species
coming upstream will use the bypass instead of the Original
Stream enamel, especially:as flows in the original channel
are reduced This was demonstrated during the 1998 event,
leaVingAaVer 50 steelhead stranded in the hYPASe. In
addition, at least one redd was found in the new gravels of
the bypass on Golf Course Preperty.
9. The abnormal sediment deposition, threats to 'steelhead,
_ . , , - _
homes and roads become a nevi- liability and burden placed on
the. public sector in perpetuity.
There is no mechanism. agency approvals or funding in
Place or proposed to provide the planning, labor, oversight,
managethent and meeting ladreaadd liability to address the
inevitable fish stranding, sediment removal, protection of
public' roadways and downstream homes,, habitat
reeenetradtion, and bypass Sann02- reconstruction tbat are
necessary after floods have Occurred.
In 1998, a volunteer group of faculty and students from
Casa Grande High School Fish Hatchery, city staff and other
interested Parties rescued the .stranded steelhead. An ad
hoc agreement with the developer of Crass Creek homes, the
City and the County DPW provided heavy equipment and
manpower to close oft the captured by the. bYpisa, and
clear sediment and debris from the 'culverts under the ;road.
The Golf Course was left, with reconstruction casts of about
$180;000 (Paid mostly by Ilardel 11.1C) .
Due,:to the special status of steelhead. PM. Fish and
Garde, and 404 (USACR) ,recfuilethentd for seretherid alterations
during the rainy season, it would be very difficult to
accomplish effective preventive management and maintenance
forthia -Section. of streambed and the bypass that would last
completely through a SterM season.
•
FE&'03-2001 17:19 Y.04
Cal Fish .and Game; Sonoma County Public ,Works/PRMD; and any
others that may anise as this controversial`proj°ect is
subject to `fo-rma Permit.it applcati:an disclosures'.
Adobe Creek 'Monitoring and
At 5 . Prev�.ousl y deposited
Maintenance Fund, monies are for environmental restoration,
not for. monitoring ,and maintaining a flood Project, per
written a `-
greement signed by the City .and approVed by other ,
agencies. Will it tonally alter the existing agreement?
WhY? when these funds are exhausted, Who, if anyone, will
pay to ensure success of environmental mitigations already
agreed to along; A different downstream reach of Adobe Creek
and the (failing) replacement wetlands adjacent to the
airport? Is the City flush with such°money,- or is staff
just willing to let environmental mitigations die, as it has
all too often in •the past.
There needs to be .a Biological Mitigation and Restoration
Plan for this new ;flood project, with= its agency approvals
and requisite funding sources `in' plate in perpetuity.
The 12 homes in the former floodplain should be required to
purchase flood insurance in perpetuity.,
This proposed agreement should be totally unacceptable to
the City Council.
How can staff recommend approvals for a project agreement
that depends on, 'demands and requires a legal pubicly-owned
maintenance, access and, liability-agreement on a private
third-party landowner (Golf Course) without their signed
permission, with the City as project sponsor? IS this a new
model for development .agreements? Would it be applicable at
Ridgeview Heights subdivision for' trails? Should we condemn?
Despite my re:a eats: to staff and City Attorney in December
that these issues be included in any',proposed agreement, no
details have been provided that would adequately inform and
protect the City's taxpayers and the environment.
How many more fuzzy deals do we need? Aren't Rooster Run,
the Marina, or- financing'the-Corps? project 'enough ?
If this agreement's concept is approved, then. the homes can
be built, and the :Cit''be held .responsible for protecting
them from flooding with or without any additional work on
Adobe Creek prior °to the homes' completion_. This is wrong.
in short,- these ;are:`some. of the- unintended consequences of
allowing--building in theEflood plain. It is neither smart
nor -responsibTeto proceed down this all too well-worn path.
-Thank you for the opportunity to ;comment on this proposal .
Attached: draft letter' to F&MA, 6/9/00
•
FEB-03-2001 17:2d P.05
•
faxr---7
A
June ?. 1 2009
FROM: :David teller, Councilmember
TO Fred StOUder, City Manager
Rich Rudnansky, CitY, Attorney
Tom Hargis, Director, Dept. of Water Resources
mike Moore, Director, p - of Community Development
DRAB letter to FEMA re: Cross Creek Subdivision
Mr. max Than, Project Engineer,
FEMA Region IX, Technical Service. Division
500 .PC" St. SW
- • -
Washington, DC 20472
(202) 646-3843
FAX (202) 646-4596
Re: CLOMR Application, Cases 99r09-.220P
cross Creek Subdivision, Petaluma CA, Mardel LLC
(Revision of Case if :97-09-876K)
Dear Mr_ Yuan:
The foiloWing are cOmMents on the above applicationler
Modification of existing SFR.? designation on a portion of
the leads 'currently through the modification of a-high-water
bypass on Adobe Creek, the reconstruction of an entrance
control weir to the bypass and raising of elevation of a
levee alblig;the creek.
The purpose of the high Water bypass (diversion) on ,Adobe
Creek is directly related to the desire of .Ctimas Creek
developers (Mardel TLC? to remove certain lands Int the
Special flood Hazard Zone (100 year floodplain) designation
and encuMbrance, making these lots eligible for residential
_
construction (appx l2 sites) .
we belieVe that the failure lOt the bypass,; as previously
deOlgn.ed, constructecl 'and,'Permitte& in Feb. 1998
deMonstrate6 the future liabilities. and jeopardy that the
bypass will illiPPse, ou the public sector and eeeelPead
i
fisheries, regardless of ts.design Modificationi.
1. The:. City of PetalUma hak not reviewed or approved any
design MadifiCation-A to the bypass channel and its related
structures . According to conversation with Dave Robertson,
DePUtY_ Director, Sonoma County Department of transportation
and .Public works., they also have given no review or permits .
Ebr such .redesign Or modifications.
rea-az-ems i r-io r.ne
•
;requirements?; Where. is the cost and •proposed budget for
staff audio-entreat-Tabor, supplies and equipment? How can •
the City accept a $50;000, deposit in' lieu of a Mello-Roos
District without knowing any cifthese detaila?
Exhibit B is' illegible, hand Engineer';s Estimate-1/27/01 does
not include `any"revegetati'on, monitoring or requisite agency
approvals or" City staffing for this concept,, Where is the,
engineer's modeling to substantiate that this proposal will
"solve" the 'sediment and' debris load problems, or the fish
stranding problems? The. engineers promised the design would
work- the last time Are all these-"solutions" guaranteed in
perpetuity? ,By ,whom? The taxpayers?
For .perspebtive, the failure of rne' bypass channel in 1999
cost over $175,000 far repairs (paid` by Mardel, but not
including City or County staff costs, or volunteer. labor to
remove stranded eteelhead.)
if the city accepts the FEMA obligations to protect the new
floodplain status •of 12 home sites as.conditioned upon the
City in the' I,ow we are fully liable.:for losses :in the
future if these {comes; persons or property were to be
damaged__through the City';s negligence'or ;omissions if the
flood;project 'fails. ,Haven't we had.enough construction in
the floodplain with huge City and taxpayer liability for
repairs an& damages?, Are we so shortsighted,to assume that.
yet another engineering project will: provide safety to these
12 home located in a-°former -floodplainfor the life of these
homes and their replacements (100+ years)?
Why does the; agreement at, 1.a) 'pprovide only, for annual
maintenance;.through.special. tax. Why are "replacement" costs
excepted? When the ,project, fails in the future through its
very'problematic. and:'flawed' concept, why should:.the City
shoulder the•costs?, What if Corps of Engineers or.NMFS
requires a new, designiin the future to protect the
floodplain status'of these 12 homes? Who:pays? Are we just
creating a new "Jess Avenue" col lection "of threatened homes.
At 1.c) The;,City is obligated to: create a special tax 10
t
days prior o; closing escrow on any lot'.. Have any lots been
sold? Offered? Who determines when lots are offered relative
to the cumbersome process of setting;up the special tax?
What• s the• City's assurance that a11212.'lots will
participate in:;the` special 'tax? Incomplete inclusion' would
put a potentially unjustifiable burden∎ on the remaining
lots. Is this flood project, proposed` tax and the history
of failure disclosed, to, any purchasing, inquiries now?
At 1.d) The City is put on a very short..timeline to perform,
to create the; Mello-Roos tax, 'by•July<.1, 2001, else its.
assurances of a long-term funding mechanism is eliminated.
This date should' be extended 'or extendible under given
circumstances..
At 2.A. signing :otf4Mardel's work obligations as. "complete"
Individual Her'ma'n unaer 'te ron 404, sysay -------- _
RWQCB,permits and water quality certification under ,404 and
other acts,, any'perdits relative to US/California Endangered
Species Act. from NMFSIor. TTSFWS or Cal ResCdtCeBn Department/
FEB-03-AN1 17:Ld P.03
should not, be at the sole diSrretion of the. Planning
,
Director. The contentious aspects of this project Are a
, , _ ,
result of the Conflict 'between the Mardel' s desire to
complete this subdivision and the public' s need to fully
. .
p±otect'the City against liabilities, risks- and
responsibilities-. Any notice of completion on these complex
_ .
issues should be done after seeking advice and approval of
the Council at A public seSsien.
At 3. Why would the City become the applicant and project
proponent for all permits required for this project? This is
Mardelf.S responsibility, and the City should non place.
itself in this pesition. Would it do so for all other
projects facing contentions, permitting requirementS? This
proposed role for the "City as permit applicant is counter to
its responsiblity to the public.
-
In addition, if the City fails to perform its tasks of
obtaining all perMithanclagreements (3 .a; 3.b) by 7/1/04.
Mardel's homes are fteedJfrom .its Mello-Roos requirements,
Mardel is freed from any bonding requirements and the City
,
only gete ,a $50,.000 cash payment for all future City
obligation S.
Section 6. says, "City agrees that Mardel shall be entitled
,
to comMence and complete-construCtion. .. . upon receipt of the
building permits", which the City "agrees to issue. . within
2 business days after Mardel posts the bond,'" whiCh- (4 . )
"Mardel shall post. . within 10 dais after the parties
execute tins Agreement. " Yet, according to (3. ) , 7"Mardel
shall not Cammence:Wark [oh the flood project) until City
obtains all permits required by law and permission from all
the owners. " (by 7/1/04) .
. _ .
MardeIgets vested rights to commence and occupy homes with
guaranteed certificates of occupancy, despite the fact that
the-flOad-PrOject alterations may not havebeed,approVed or
_
work Icommenced' or adequately funded, or the hOMes adequately
protected! This Bahama is patently absurd.
Even it none of the permits or agreements are achieved, the
City still. "unconditionally withdraws" its appeals to FEMA
on the LOMR.
This isifispallyrand legally irresponsible. The City and
taxpayers are left holding the bag, And Mardel getflOrbuild
what it wants regardless of the consequences. Mardel has no
incentives to assist or get permit or long-term maintenance
approVals (and agieementnunder this proposal .
'Please note that the List of Pexmits ,a6 Exhibit C is
,
Probably incomplete to assure full approvals of any work to
modify Adobe Creek also refer to Corps of Engineers.
Individual Permit under Clean Water Ace' Section 404, SFEay,
iftCa,perMits and Water quality certification 'under '404 and
other acts; any permits relative be US/California Endangered
, _ ,
Species Act' from NMFS orUBRIS Or Cal Resources Department-7
rtd'tL5-0051- 17;'G1 r..emi
• 'OD
In addition, as flood lain administrators, the City and
County- would be :saddled with maintenance requirements well
in excess of "just clearing' the culverts. "
The existence; of the bypass is an invi.tati_on to
environmental disaster, as well as uncontrolled and unfunded
future•°public liabilities! for both `fi_nanci:al and public
trust resource losses.
10. The bypass channel is, not regulated by Sec. 404
regulations, and is subject to additional pollution and risk
at the. Golf Course.
The Golf Course uses 'fertilizers and some herbicides in
its spray irrigation of turf. Normally, the bypass channel
is just another turfed area of the. golf course. However,
when storm flows are tdiverted through it, Adobe Creek waters
can pickup any of this runoff_ This could prove adverse to
spawning steelhead and :other fish acid :agdatic species.
The Golf Course iS also. oencerned about added hazards to
their customers and• visitors from high water flows, erosion,
bank collapse 'or golf carts slipping down slick slopes into
the floodwaters, and the liabilities that come with them:
The Golf Course and Mardel LLC; already had to spend some
$180, 000 repairing damages Suffered during the failures of
February 199e.
11. Changes in the 'elevation or configuration of the bypass
weir will not eliminate these risks.
The problems are inherent in the very existence of a
high water bypass on this reach of Adobe Creek, for the
reasons stated above. The bypass has been premised on
"clear water engineering" without accounting for the
considerable bedload and storm debris et Adobe Creek, and
without accommodating migration runs of steelhead.
In conclusion, while benefiting the_"developer of Cross Creek
by reMOVing, 12 future ha sites •fram :floodpiain
designation, the bypass channel at the Adobe Creek Golf
Course will be_a perpetual problem, forever transferring
liabilities and risks to the public sector and 'our natural
resources: While the original project was approved by the
City,, the failures .of February .199S:brought to light
deficiencies in the engineering conceit 'and execution that
were unforeseen. We have the 'opportunity now not to
compound the. earlier. errors. Due to these risks of future
damages to property life, natural resources and the public
sector, the C OMR- should not be granted.
DRAFT - HOT. SENT; TO FEMA, /'
distributed to staff sand Coun ti (,
TOTAL P.03