HomeMy WebLinkAboutReso 09-23 Approving an Agreement with Res Environmental Operating Company, LLC for Environmental Mitigation Services for the Dublin Boulevard Extension CIP No. ST0216Reso. No. 09-23, Item 4.2, Adopted 02/07/2023 Page 1 of 2
RESOLUTION NO. 09 – 23
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING AN AGREEMENT WITH RES ENVIRONMENTAL OPERATING COMPANY,
LLC FOR ENVIRONMENTAL MITIGATION SERVICES FOR THE DUBLIN BOULEVARD
EXTENSION - FALLON ROAD TO NORTH CANYONS PARKWAY PROJECT, CIP NO.
ST0216
WHEREAS, Staff is coordinating with Alameda County Transportation Commission
(Alameda CTC) staff, Livermore staff, and Alameda CTC’s design consultant, BKF Engineers and
environmental subconsultant H.T. Harvey & Associates (collectively, Project Team), on the
evaluation of environmental mitigation options for the Dublin Boulevard Extension – Fallon Road
to North Canyons Parkway project, CIP No. ST0216 (Project); and
WHEREAS, RES Environmental Operating Company, LLC (RES) is qualified and has the
ability to provide project specific mitigation services; and
WHEREAS, based on the evaluation of mitigation options by the Project Team, the lack of
currently approved conservation banks that could satisfy all mitigation needs for the Project, the
uncertainty of when a conservation bank would be available, the potentially higher cost per acre
of purchasing mitigation credits from a mitigation bank, and conversations between RES and the
Project Team on mitigation options, the services that RES can provide is the most cost -effective
option; and
WHEREAS, RES will provide the City with the entire mitigation to compensate for the
unavoidable impacts to species’ habitat and aquatic resources for the Project; and
WHEREAS, the City desires to enter into an agreement with RES Environmental Operating
Company, LLC for a not to exceed amount of $15,480,144 for environmental mitigation services
for the Project.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does
hereby approve the Mitigation Agreement with RES, attached hereto as Exhibit A.
BE IT FURTHER RESOLVED that the City Manager is authorized to execute the
Agreement and make any necessary, non-substantive changes to carry out the intent of this
Resolution.
{Signatures on the following page}
Reso. No. 09-23, Item 4.2, Adopted 02/07/2023 Page 2 of 2
PASSED, APPROVED AND ADOPTED this 7th day of February 2023, by the following
vote:
AYES: Councilmembers Hu, Josey, McCorriston, Qaadri and Mayor Hernandez
NOES:
ABSENT:
ABSTAIN:
______________________________
Mayor
ATTEST:
_________________________________
City Clerk
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MITIGATION AGREEMENT
THIS MITIGATION AGREEMENT (this “Agreement”) is entered into as of __________________,
2023, by and between HGS, LLC, a Virginia limited liability company d/b/a RES Environmental Operating Company,
LLC (“RES”), and City of Dublin, a California incorporated City (“City”) (“Permittee” and together with RES, the
“Parties” and each individually, a “Party”).
RECITALS:
WHEREAS, City, in collaboration with the City of Livermore, is the lead agency that desires to construct a
project generally described as the roadway extension of Dublin Boulevard, from Fallon Road to the Dublin city limits,
continuing easterly through unincorporated Alameda County and connecting to North Canyons Parkway within the
City of Livermore, commonly referred to as the Dublin Boulevard Extension project located in Alameda County,
California (the “Project”);
WHEREAS, the City may require approximately 0.27 ac of mixed riparian woodland, 1.75 ac of “riparian
grassland” (defined as riparian habitat along creek banks), 0.30 ac of seasonal wetland, and 0.25 ac (750+ linear feet)
of perennial and ephemeral stream mitigation (“Estimated Aquatic Acres”). It is the current policy of the United
States Army Corps of Engineers (the “USACE”), California Department of Fish and Wildlife (CDFW), and San
Francisco Regional Water Quality Control Board (RWQCB) to require unavoidable impacts to aquatic resources be
mitigated through the establishment, re-establishment, rehabilitation, or enhancement of aquatic resources similar to
the impacted resources in the Hydrologic Unit Code zone (“HUC”) in which the impacts are located1;
WHEREAS, Permittee and/or its agents have, prior to the date hereof, in good faith and using an approved
method estimated that 494 acres of combined California Tiger Salamander (CTS) / California Red Legged Frog
(CRLF) acres (“Estimated CTS/CRLF Acres”) are expected to be required by CDFW and United States Fish and
Wildlife Service (USFWS). CTS and CRLF compensation is achieved through the preservation and management of
habitat supporting breeding ponds and adjacent grasslands with sufficient movement and aestivation habitat in
locations near the impact site consistent with the requirements outlined in the East Alameda County Conservation
Strategy2; and
WHEREAS, Permittee expects to receive the following permits for the Project: Incidental Take Permit or
Consistency Determination under Cal. Fish & Game Code §2081, Streambed Alteration Agreement under Cal. Fish
& Game Code §§1602-1603, Section 7 Biological Opinion under the Federal Endangered Species Act, Nationwide
Permit under Section 404 of the Clean Water Act, and a water quality certification under Section 401 of the Clean
Water Act (“Project’s Permits”); and
WHEREAS, Permittee desires to engage RES to provide the regulatory support, land management and
execution and administration services set forth in Exhibit A for the Project (the “Services”), which Services include
the development and, if the Project’s Permits are issued by the CDFW, USFWS, USACE, and RWQCB,
implementation of a compensatory mitigation plan (the “Mitigation Plan”) to generate the Estimated CTS/CRLF
Acres and the Estimated Aquatic Acres or, if agreed pursuant to Section 3, a greater or lesser number of Acres;
WHEREAS, Permittee anticipates that the Project’s Permit will be issued on or before November 15, 2025
(the “Anticipated Project’s Permit Date”); and
NOW THEREFORE, in consideration of the undertakings, promises and agreements set forth herein and
other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, City and RES
agree as follows:
1 https://www.spd.usace.army.mil/Portals/13/docs/regulatory/qmsref/ratio/12501-SPD.pdf
2 http://www.eastalco-conservation.org/about.html
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AGREEMENTS:
1. Engagement of RES. Subject to (i) the terms and conditions set forth herein and (ii) all required approvals
of the City and any other applicable transnational, domestic or foreign federal, state or local governmental, regulatory
or administrative authority, department, court, agency or official, including any political subdivision thereof (a
“Governmental Authority”), RES agrees to perform, or cause its affiliates, subcontractors or agents to perform, the
Services in order to develop and, if the Project’s Permits are issued, implement the Mitigation Plan to generate the
Estimated CTS/CRLF Acres and Estimated Aquatic Acres; provided that in lieu of providing the Services RES may
obtain all or any portion of the Estimated CTS/CRLF and Estimated Aquatic Acres from mitigation banks or other
sources.
2. Required Payments.
(a) As consideration for the performance of the Services, Permittee shall pay RES an aggregate amount (as may
be adjusted pursuant to Section 3 or Section 4, the “Purchase Price”) equal to $15,523,3113 minus a $43,167 credit
for work already performed (Tasks A -C and submission of Credit Summary Report to City) equaling $15,480,144,
paid in installments as follows (each a “Milestone Payment”):
i. On the date hereof, $774,007, equal to 5% of the Purchase Price;
ii. On the date that the first draft of the Mitigation Plan is submitted to Permittee or its agents for review (or,
if Permittee requests that such draft be submitted directly to the City for review, upon the date that such
draft is submitted to the City), $774,007, equal to 5% of the Purchase Price; and
iii. On the earlier of the (A) Anticipated Project’s Permit Date and (B) issuance of the Project’s Permits,
$3,870,036, equal to 25% of the Purchase Price; and
iv. On the date RES records a conservation easement over the property or properties included in the approved
Mitigation Plan, $4,644,043, equal to 30% of the Purchase Price.
v. On the date that the as-builts of the Estimated Aquatic Acres are submitted to the USACE, RWQCB,
CDFW, and USFWS, $4,644,043, equal to 30% of the Purchase Price.
vi. On the date that the as-builts of the Estimated Aquatic Acres are approved by the USACE, RWQCB,
CDFW, and USFWS, $774,007 equal to 5% of the Purchase Price; and
The Purchase Price reflects the following pricing: $29,870/acre for CTS and CRLF and $298,650/acre for
Aquatic Resources (for each type specified in this paragraph, the “Price Per Acre).
(b) Any amount due and payable hereunder shall be paid within thirty (30) days of such amount becoming due
and payable by wire transfer or by other method as directed by the RES. Any amount paid hereunder shall, when
paid, be deemed to be fully earned and non-refundable.
(c) If Permittee fails to make any required payment under this Agreement:
i. RES shall notify Permittee of the default within 10 business days of the potential default and in accordance
with Section 7(d). RES shall not be required to perform hereunder unless and until such default is cured
and shall not be responsible for any breach, liability or damages resulting from such non-performance, and
ii. after a thirty (30) day cure period beginning upon RES’s notification to Permittee of such non-payment,
RES may, in addition to its remedies at law and equity, (x) retain all prior payments received as liquidated
damages, and/or (y) terminate this Agreement.
3 The Purchase Price is calculated as $29,870/acre for Estimated CTS/CRLF Acres for 494 acres ($14,755,780) +
$298,650/acre for Estimated Aquatic Acres for 2.57 acres ($767,530.50).
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3. Project Changes.
(a) Project changes or a re-evaluation of the Project’s expected impacts may affect the number of Estimated
CTS/CRLF Acres and/or Estimated Aquatic Acres. Prior to the issuance of the Project’s Permits, Permittee will have
the right to request a change in the number of Estimated CTS/CRLF Acres and Estimated Aquatic Acres by delivering
a written notice (an “Acreage Change Request”) to RES describing the type and number of Acres by which Permittee
desires to increase or decrease the Estimated Acres. If an Acreage Change Request reduces the Estimated Acres to
zero, either Party may terminate this Agreement and Section 5(a) shall apply.
(b) Promptly after receiving an Acreage Change Request, RES will use commercially reasonable efforts to
deliver a written proposal (an “Acreage Change Proposal”) to modify the Mitigation Plan to generate additional
Acres or reduce the number of Acres generated by the Mitigation Plan. The Acreage Change Proposal will include
RES’ proposed increase or decrease, as applicable, in the Purchase Price given such modifications.
(c) Permittee and RES will discuss the Acreage Change Proposal in good faith. If the Parties agree on the
Acreage Change Proposal, including any modifications to the Acreage Change Proposal agreed to by the Parties, RES
will implement the Acreage Change Proposal. If the Parties cannot agree on a final version of the Acreage Change
Proposal within 30 days of its delivery to initial delivery to Permittee, either Party may terminate this Agreement and
Section 5(a) shall apply. RES and Permittee each agree to do such further lawful acts as are reasonably necessary to
give effect to the intent of this Section 3.
4. Changes in Regulations.
(a) If, prior to the issuance of the Project’s Permits, there is a change in any rules, guidance, regulations or the
Methodology or the application thereof (a “Change in Regulations”), RES will use commercially reasonable efforts
to deliver a written proposal (the “Change in Regulations Proposal”) to modify the Mitigation Plan to address the
Change in Regulations. The Change in Regulations Proposal will include RES’ proposed change in the Purchase
Price, if any, given such modifications.
(b) Permittee and RES will discuss the Change in Regulations Proposal in good faith. If the Parties agree on the
Change in Regulations Proposal, including any modifications to the Change in Regulations Proposal agreed to by the
Parties, RES will implement the Change in Regulations Proposal. If the Parties cannot agree on a final version of a
Change in Regulations Proposal within 30 days of its initial delivery to Permittee, either Party may terminate this
Agreement and Section 5(a) shall apply.
(c) Notwithstanding anything to the contrary herein, any modification to the Mitigation Plan is conditioned upon
the receipt of all required Governmental Authority approvals, and in no event will RES be liable to Permittee or any
other party if RES is unable to modify the Mitigation Plan to accommodate an Acreage Change Request or Change in
Regulations.
5. Termination.
(a) If either Party terminates this Agreement as permitted by Section 3 or Section 4, then (i) any Milestone
Payments that have been paid, or are at the time of termination due and payable to RES, shall be retained by and/or
paid to RES as compensation for Services performed, (ii) Permittee shall not owe any additional amounts to RES, (iii)
RES shall not have any additional obligations to Permittee and (iv) both Parties shall execute and deliver such
additional documents, instruments, conveyances, and assurances and take such further actions as may be reasonably
required to carry out the intent of this Section 5, including as required by any Governmental Authority.
(b) If RES terminates this Agreement as permitted under Section 2(c), then, without limiting Permittee’s
obligations or liabilities to RES arising from such breach, RES shall be relieved of its responsibilities hereunder and
shall have no further obligations to Permittee.
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(c) Termination under this Section 5 shall not be deemed to relieve any Party of any obligations that expressly
survive termination of this Agreement (e.g., confidentiality obligations under Section 7(a)).
6. Responsibilities, Representations and Covenants. Permittee and RES each, as applicable, expressly
acknowledge, represent, covenant and agree that:
(a) RES is not responsible for the calculation of the number and type of Estimated CTS/CRLF Acres and
Estimated Aquatic Acres ultimately required by the Governmental Authorities as a condition to the approval of the
Project’s Permits;
(b) The number of Acres ultimately required by the Governmental Authorities as a condition to the approval of
the Project’s Permit s may be greater than the Estimated CTS/CRLF Acres and/or Estimated Aquatic Acres, and RES
is not responsible for providing such Acres unless agreed pursuant to Section 3;
(c) RES is responsible for compliance with, and will comply with, applicable laws, rules and regulations related
to the performance of the Services, and Permittee is responsible for compliance with, and will comply with, any other
applicable laws, rules and regulations related to the Project, including the Project’s Permit s;
(d) Permittee (i) has provided RES with true, correct and complete copies and/or summaries of any
correspondence or requirements from any Governmental Authority related to the Mitigation Plan and compensatory
mitigation requirements associated with the Project or the Project’s Permit s and (ii) shall promptly provide to RES
true, correct and complete copies or summaries of any such correspondence or requirements received or occurring
after the date hereof; and
(e) Permittee shall execute and deliver such additional documents, instruments, conveyances, and assurances
and take such further actions as may be reasonably required to carry out the intent of the provisions hereof.
7. Miscellaneous.
(a) Confidentiality. The Parties acknowledge that this Agreement, including its contents, shall be subject to
public disclosure by Permitee pursuant to the California Brown Act, California Public Records Act, and all other
applicable laws pertaining to disclosure by public entities, and Permitee shall not be limited in any manner
whatsoever with respect to its public disclosure of this Agreement, including the contents therein. Nor shall the
Parties be prohibited from providing this Agreement or the terms hereof to their attorneys, consultants, professional
advisors, and current and prospective investors and primary lenders. Permittee agrees that it shall not, without the
prior written consent of RES, which consent may be withheld by RES in its sole discretion, contact or communicate
directly or indirectly with any landowners, third party easement holders or other parties to any conservation
easement or similar documents affecting the property from which RES has established a purchase or option
agreement and intends to satisfy the Estimated CTS/CRLF Acres and Estimated Aquatic Acres. The terms and
conditions of this paragraph shall survive any termination of this Agreement.
(b) Governing Law and WAIVER OF JURY TRIAL. This Agreement and all matters arising out of or relating to
this Agreement are governed by the laws of California, including its statutes of limitations, without giving effect to
any conflict of laws provisions thereof. Any Party may institute any legal suit, action, or proceeding arising out of or
relating to this Agreement in the federal or state courts in each case located in Houston, Texas. EACH PARTY
HEREBY IRREVOCABLY AND UNCONDITIONALLY: (A) CONSENTS AND SUBMITS TO THE
EXCLUSIVE JURISDICTION OF THE AFOREMENTIONED COURTS; (B) WAIVES ANY OBJECTION TO
THAT CHOICE OF FORUM BASED ON VENUE OR TO THE EFFECT THAT THE FORUM IS NOT
CONVENIENT; AND (C) WAIVES ANY RIGHT TO TRIAL BY JURY. The provisions of this paragraph shall
survive the expiration or termination of this Agreement.
(c) Counterparts and Authorization. This Agreement may be signed by facsimile signature, which signature shall
be deemed to constitute an original signature and be binding as such. This Agreement may be executed in identical
counterparts, each of which when so executed and delivered will constitute an original, but all of which taken together
will constitute one and the same instrument. The Parties each represent that the person signing this Agreement on
their behalf is duly authorized to sign this Agreement.
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(d) Notices. All notices, requests, consents, claims, demands, waivers, approvals and othe r communications
hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on its signature
page (or to such other address that may be designated by the receiving party from time to time in accordance with this
Section 7(d)). All Notices shall be delivered by personal delivery, nationally recognized overnight courier or email
(with confirmation of transmission) or certified or registered mail. A Notice is effective only (i) upon receipt by the
receiving party, and (ii) if the Party giving the Notice has complied with the requirements of this Section 7(d). The
provisions of this paragraph shall survive the expiration or termination of this Agreement.
(e) Entire Agreement, Severability and Waiver. This Agreement embodies the entire agreement between the
Parties and supersedes all prior agreements and understandings relating to the subject matter of this Agreement. If any
portion of this Agreement is held invalid or inoperative, then so far as is reasonable and possible the remainder of this
Agreement shall be deemed valid and operative, and, to the greatest extent legally possible, effect shall be given to
the intent manifested by the portion held invalid or inoperative. The failure by any Party to enforce against the other
any term or provision of this Agreement shall not be deemed to be a waiver of such Party’s right to enforce against
the other Party the same or any other such term or provision in the future. The provisions of this paragraph shall
survive the expiration or termination of this Agreement.
(f) No Interest. No provision of this Agreement shall be deemed to grant to Permittee or any other party any
interest in any property of RES or any of its affiliates. If, despite the terms hereof, any tribunal or court determines
that a payment made pursuant to this Agreement is a pre-payment not yet fully earned by RES, Permittee grants RES
a security interest in any and all funds Permittee has delivered or deliver to RES pursuant to this Agreement, whenever
delivered; this security interest secures all indebtedness and payment obligations of Permittee to RES arising under
this Agreement, whether now existing or hereafter arising.
(g) Force Majeure. Except for the payment of monetary amounts due pursuant to Section 2 hereof, no Party shall
be liable or responsible for failure to satisfy its obligations hereunder if such failure is attributable to Force Majeure.
As used herein, “Force Majeure” means any of the following: fires, floods, storms, earthquakes, other weather events,
strikes, riots, acts of God, shortages of labor or materials, war, terrorist acts or activities, governmental laws,
regulations, or restrictions, adverse determinations from any such parties, delays in permitting or approvals from any
governing bodies, changes to the scope of work that extend the time period necessary to complete the Services, delays
to a Party that are caused by the other Party or any third party, discovery of environmental contamination or other
adverse site conditions that suspend or delay the performance of the Services, the actions, faulty work or defective
work of any third party for whom the delayed Party is not responsible, or any other causes of any kind whatsoever
which are beyond the reasonable control of the responsible Party.
(h) Amendment and Assignment. This Agreement may not be changed, amended or modified except by an
instrument in writing signed by all Parties. This Agreement shall be binding upon the Parties and their respective
successors and assigns; however, this Agreement may not be assigned by any Party without the prior written consent of
the other Parties, which consent shall not be unreasonably withheld, conditioned or delayed. The foregoing restriction
shall not be deemed to prohibit (i) the assignment or transfer of this Agreement by any Party to (x) any third party that
controls, is controlled by, or is under common control with, the assigning Party, or (y) any purchaser of all, or
substantially all, of the assets of the assigning Party, as long as, in each case, the assignee agrees to assume all obligations
of the assigning Party hereunder, or (ii) the pledge or collateral assignment of this Agreement, or any rights and/or
remedies hereunder, by any Party to its primary lender(s) as collateral for such Party’s obligations under any secured
credit facility.
(i) Consequential Damages. Notwithstanding any provision of this Agreement to the contrary, no Party to this
Agreement shall be liable for any lost or prospective profits or any other indirect, consequential, special, incidental,
punitive, or other exemplary losses or damages, whether based in contract, warranty, indemnity, negligence, strict
liability or other tort or otherwise, regardless of the foreseeability or the cause thereof. Each Party expressly agrees
that the members, partners and shareholders of any defaulting or breaching Party hereunder are not jointly, solidarily
or severally liable for any costs, expenses, losses or damages arising from such Party’s breach or default under this
Agreement. The provisions of this paragraph shall survive the expiration or termination of this Agreement.
(j) Interpretation. Section headings are included for convenience of reference only and are not intended to define
or limit the scope of any provision of this Agreement and should not be used to construe or interpret this Agreement.
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Any singular term in this Agreement shall be deemed to include the plural, and any plural term the singular. Whenever
the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by
the words “without limitation”, whether or not they are in fact followed by those words or words of like import.
“Writing”, “written” and comparable terms refer to printing, typing and other means of reproducing words (including
electronic media) in a visible form. This Agreement shall be construed without regard to any presumption or rule
requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
The schedules and exhibits referred to herein shall be construed with, and as an integral part of, this Agreement to the
same extent as if they were set forth verbatim herein; provided that in the event of any conflict between the body of
this Agreement and an Exhibit, the terms of the body of the Agreement shall control.
(k) Independence of Parties. Nothing herein shall be construed to create a joint venture or partnership between
the Parties hereto or an employer/employee or agency relationship.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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NOW THEREFORE, the Parties have caused this Agreement to be executed, sealed and delivered, all as of
the date first written above.
RES:
[RES ENTITY]
By: [HGS, LLC d/b/a RES Environmental Operating Company, LLC,
a Virginia limited liability company,
its manager]
By:
Name:
Title:
Date:
Address:
6575 West Loop South, Suite 300
Bellaire, Texas 77401
Attn: Sam Burley, General Counsel
Email: sburley@res.us
PERMITTEE:
City of Dublin,
a California incorporated city
By:
Name: Linda Smith
Title: City Manager
Date:
Address:100 Civic Plaza, Dublin CA 94568
Attn: City Engineer
Email: public.works@dublin.ca.gov
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EXHIBIT A
Scope of Work
(See attached.)
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RES has already acquired suitable land to provide the mitigation for the Dublin Boulevard Extension (Project) on
behalf of the City. The purpose of the Mitigation Plan is to compensate for unavoidable impacts to species’ habitat
and aquatic resources associated with the Project. Working with clients as early as possible in project life cycles is a
top priority for RES, allowing us to execute as a trusted advisor, planning effectively for complex mitigation solutions.
This role enables us to analyze all project parameters and offer guidance on cost-effective solutions. For the Project,
RES has developed a solution that will meet all mitigation needs, aligning with your permitting needs and conditions,
resulting in success. RES has restored and protected over 62,000 acres of wetlands, conserved and restored over 400
miles of streams, and reduced over 280 tons of nutrients and preserved, restored and managed over 15,000 acres of
special-status species habitat. Together, our employees have planted 20,000,000 restorative trees across the country
and have provided compensatory mitigation solutions that have helped our clients obtain over 3,980 federal and state
permits.
Project Phases
Below is a description of the phases of the project and a detailed scope for each task that RES will perform in order
to complete each phase culminating in the delivery of the Estimated CTS/CRLF Acres and Estimated Aquatic Acres.
Tasks A- D from the Advisory Services Agreement are complete:
Environmental DNA Sampling of Onsite Ponds
Nightime Surveys for CTS/CRLF Juveniles and Adults
Wetland, Riparian, and Stream Mitigation Feasibility Study
Credit Analysis and Summary Report
Additionally, RES has completed Phase 1, recommended here. Phase 1: Property Acquisition and Due Diligence
Preliminary title report
Phase 1 environmental site assessment
Mineral assessment
RES will include the following Phases as part of the Services
Phase 2: Baseline Studies
Biological resources report
Rare plant surveys
Jurisdictional determination
Focused wildlife species surveys
Surface water hydrologic and hydraulic analysis
Cultural resources survey
Phase 3: Plan Development
Offsite mitigation compensatory restoration plan
Long-term management plan
Conservation easement
Phase 4: Permitting
California environmental quality act (CEQA) approval
Alameda County planning department coordination
Section 1602 lake and streambed alteration agreement
Section 404 nationwide permit
Section 401 water quality certification
Section 7 biological assessment
CDFW endangered species act coordination
Phase 5: Restoration Implementation
Habitat construction
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As-built report
Phase 6: Maintenance and Monitoring
Mitigation site maintenance
Annual reporting
PHASE 2 – BASELINE STUDIES
Biological Resources Report
Based on a review of the CDFW Natural Diversity Database (CNDDB) and the USFWS county list, RES will compile
a preliminary list and GIS occurrence maps of special status wildlife species with potential to occur in the vicinity of
the mitigation site.
Site visits will be undertaken and the mitigation site will be traversed on foot and the habitat assessed to determine
suitability for special status wildlife and plants. The field inspection will include rare plant surveys and focused
wildlife surveys, detailed below. The site visits will be conducted by biologists with experience surveying for rare
plant species and sensitive vegetation communities. This will be accomplished using GPS and hand-drawing the
extents of the various vegetation communities on aerial photographs in the field. The field biologists will work with
GIS staff to prepare a map of the vegetation communities of the mitigation site including non-native invasive species
infestations. The map will include potential sensitive wetland features mapped during the wetland delineation, in
addition to other sensitive habitats such as riparian habitat, native grassland, or other communities considered sensitive
by the CDFW. Where it is necessary to make a determination of habitat sensitivity, vegetation communities will be
assigned to the alliance level as described in A Manual of California Vegetation, 2nd Edition.
The Biological Resources Report will discuss the results of the literature search, field reconnaissance, and focused
rare plant and wildlife surveys. Potential use of the properties by any sensitive species will be ranked as unlikely,
moderate, or high depending upon the suitability of the habitat or proximity of any known records uncovered in the
database search. If any sensitive species are observed, they will be reported in the findings. Any identified potential
restoration opportunities or land management practices that could benefit special status species or improve the
conservation value of the mitigation site will be discussed.
Jurisdictional Determination
The jurisdictional determination will identify the potential jurisdiction of the San Francisco Army Corps District under
Section 404 of the Clean Water Act, the RWQCB under Section 401 of the Clean Water Act, and CDFW under Section
1602 of the California Fish and Game Code. A complete jurisdictional determination will be conducted within the
mitigation site in accordance with the Army Corps San Francisco District criteria for the delineation of wetlands and
other guidance related to jurisdictional determinations for "waters of the United States.” Additionally, the wetland
delineation will define features that fall under the RWQCB’s 401 jurisdiction according to the State Water Resources
Control Board’s State Wetland Definition and Procedures for Discharges of Dredge or Fill Material to Waters of the
State as well as the boundary of CDFW stream and riparian areas under Section 1602.
The fieldwork will be conducted in conformance with the routine methods described in the latest Army Corps
delineation guidelines, the Arid West Regional Supplement to the Corps of Engineers Wetland Delineation Manual,
the Field Guide to the Identification of the Ordinary High Water in the Arid West Region of the Western United States,
as well as the State Water Board’s definitions and CDFW policies regarding stream and riparian areas.
Data collected in the field will be entered on standard Arid West delineation and ordinary high water mark data forms.
The identified boundaries of the wetlands and ordinary high water mark will be mapped in the field using a GPS with
one-meter resolution and will use this data to plot the boundaries on the selected base map.
The data collected will be reviewed to determine areas which meet the wetlands, waters, and riparian area criteria
under Army Corps, Regional Water Quality Control Board, and CDFW guidelines. A report will be prepared in
accordance with the format required by the San Francisco Army Corps District.
In order for the jurisdictional determination to be considered official, the Army Corps must conduct a site visit to
examine the potentially jurisdictional features and request potential changes to the delineation. After the site visit, any
edits requested by the Army Corps will be made prior to the Army Corps verifying the accuracy of the delineation.
RES will be available for site visits with the RWQCB and CDFW if desired.
Rare Plant Surveys
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There is a strong likelihood that rare plant surveys will need to be conducted on the mitigation site. During such
surveys, any populations of special status plant species identified within the mitigation site will be noted and mapped
using GPS. Survey methods will follow the CNPS Botanical Survey Guidelines, which includes visiting rare plant
reference populations in the vicinity and/or herbarium specimens prior to each survey, creating a floristic list of every
plant observed in each habitat type identified to the species level, and photographing or collecting a voucher specimen
(in accordance with applicable state and federal permit requirements) of each observed rare plant species. A rare plant
report will be prepared to discuss the results of the literature search and field reconnaissance.
Focused Wildlife Surveys
Focused wildlife surveys will be conducted for species potentially onsite or those with potentially suitable habitat
onsite. This will be done to support City’s mitigation requirements and permitting efforts needed to construct the
mitigation site. The focused wildlife surveys within the mitigation site could include the following surveys depending
upon input from CDFW and USFWS:
California Tiger Salamander
California Red Legged Frog
Burrowing Owl
Standard survey protocols will be utilized. However, there may be instances where unique techniques, methods, or
approaches such as environmental DNA (eDNA) sampling could be advantageous to the mitigation site. RES has
experience complementing standard methodologies with innovative approaches such as eDNA.
Surface Water Hydrologic and Hydraulic Analysis
All local data sources for stream flow, precipitation, evapotranspiration, will be collected and analyzed. The analysis
will be utilized for recognizing trends, preparing predictive assumptions regarding hydrology, and provide supporting
information to develop hydrologic and hydraulic (H&H) models. The proposed models will be used to determine
important design parameters necessary to construct the Estimated Aquatic Acres and provide background for
predictive analysis regarding supporting hydrologic trends. Specific questions that will be addressed by the surface
water hydrologic and hydraulic analysis are as follows:
What are the local hydrologic trends in terms of average wet, average dry, and average year
conditions?
What are the local flow duration statistics for the upstream, downstream and at the proposed
site and how does that support the existing riparian vegetation?
What is the stream response to event conditions in terms of depth of water, max/average shear, and max/average velocity?
How does the stream response information coincide with the existing riparian area determined in the data collection task? This will assist RES in making decisions about the proposed vegetation layout.
To answer the above questions RES proposes to calibrate the proposed predictive models to the extent the local data
will allow and use the models to:
Fill gaps in stream flow records
Make predictive decisions about how the local hydrology will support the proposed riparian
corridor.
Using industry standard techniques, base flow will be estimated for the mitigation site using the existing stream flow
data first and synthetic data from the calibrated model in data gap years. A technical memorandum will be developed
to summarize surface water hydrology.
Cultural Resources Survey
A complete cultural resources survey will be conducted to ensure that no sensitive archaeological or historical
resources are present within the mitigation site where activities are planned. This investigation will meet all the federal
and state requirements set by the Secretary of the Interior (SOI) and the State Historic Preservation Office (SHPO)
necessary to obtain permits from the various agencies. The investigation is designed to meet or exceed the
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requirements of the California Environmental Quality Act (CEQA). Investigation methods will include pre-field
research and field reconnaissance.
PHASE 3 – PLAN DEVELOPMENT
Offsite Mitigation Compensatory Restoration Plan
An offsite mitigation compensatory restoration plan will be prepared to outline the steps for successful mitigation
implementation, monitoring, and maintenance prior to achieving the mitigation site’s performance standards. The
details of the offsite mitigation compensatory restoration plan would include items such as a property description,
description of onsite biological resources, vegetation map, identification of mitigation activities proposed to preserve,
enhance, restore or establish habitats within the mitigation site, and identification of performance standards for
proposed mitigation activities. This plan will identify all of the direct actions that will take place to generate the
proposed mitigation as well as identify the necessary infrastructure to support the proposed mitigation. The content
will be largely dependent on the designs included in the plan.
Detailed design plans will be included in the plan based upon the requirements in the Project. The detailed designs
will include irrigation plans, planting plans, and illustrative cross-sections for restoration actions. The detailed designs
will be used to accurately determine the amount of mitigation that will be generated within the mitigation site. These
designs will be prepared to a level of detail sufficient to receive all permits from the. USACE, CDFW, USFWS, and
RWQCB.
Long-Term Management Plan
Once the mitigation site has met the performance standards identified in the offsite mitigation compensatory
restoration plan then the operation of the mitigation site is governed by the long-term management plan. RES will
develop a long-term management plan identifying any habitat or land management activities that will be needed along
with the endowment necessary to carry out such management in perpetuity. The details of the long-term management
plan will include items such as a property description, description of onsite biological resources, vegetation map,
identification of activities allowed and prohibited on the mitigation site, identification of biological goals and
objectives for the mitigation site, and management activities to occur within the mitigation site.
The contents of this plan will determine the up-front cost that must be contributed to a non-wasting endowment fund
once the mitigation site is approved. The cost of funding an endowment can vary widely based on available
capitalization rates and the management needs of a specific property as negotiated during the approval process. Long-
term management costs will be estimated based on the long-term management plan and an endowment fund analysis
and schedule document will be created which will outline the amount of the endowment required to fund long-term
management of the mitigation site, describe the assumptions used in the analysis, and will outline the schedule for
funding the endowment account.
The long-term management plan will also discuss the conservation easement and endowment holder.
Conservation Easement
RES will develop and negotiate the terms of the conservation easement using approved agency templates previously
used on mitigation properties in the area. RES will select and coordinate with a conservation-oriented non-profit to
hold the conservation easement. Once the terms of the conservation easement are finalized with the regulatory
agencies and the non-profit, and the offsite mitigation compensatory restoration plan is approved by the regulatory
agencies then RES will ensure that the conservation easement is recorded at the Alameda County recorders office.
PHASE 4 - PERMITTING
California Environmental Quality Act (CEQA) Approval
RES will assist the Alameda County Planning Department in certifying a CEQA document covering the restoration
action to be conducted within the mitigation site. The Initial Study checklist will be prepared using information from
the biological resources report, cultural resources report, Phase I Environmental Site Assessment, and restoration
plans. RES will prepare responses to any comments received during the public comment period as well as attend
meetings with the Alameda County Planning Department. If a CEQA exemption is not granted for the mitigation site,
we anticipate that a mitigated negative declaration (MND) will be prepared for the project.
Alameda County Planning Department Coordination
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There are a variety of local requirements that may need to be addressed. These may include but are not limited to,
addressing local zoning regulations for consistency, obtaining a grading permit, approval of irrigation plan, etc. RES
will ensure that any local permitting requirements associated with establishing the mitigation site are met.
Section 1602 Lake and Streambed Alteration Agreement
The construction of the mitigation habitat could impact watercourses subject to CDFW jurisdiction in the mitigation
site. CDFW requires any person who may affect the bed or bank of a perennial, intermittent, and ephemeral river,
stream or lake to request a Section 1602 Lake and Streambed Alteration Agreement. The CDFW Section 1602
application requires the applicant to complete a permit application form, a project environmental questionnaire and
provide supplemental data regarding issues raised upon completion of the project environmental questionnaire. RES
will provide the necessary information required to submit the permit application, project environmental questionnaire,
and supplemental information to the CDFW and will coordinate with CDFW to obtain the Section 1602 Lake and
Streambed Alteration Agreement.
Section 404 Nationwide Permit
Restoration actions within the mitigation site could result in impacts to existing aquatic features subject to Army Corps
jurisdiction. As a result, a permit could be required to conduct the restoration activities. The permit application will
describe the permanent and temporary impacts to existing wetland and waters habitat. More importantly, it will
describe where the new wetland and water habitats are restored and illustrate the resulting increase in habitats subject
to Army Corps jurisdiction. If an Army Corps nationwide permit is required, RES will prepare the permit application
and conduct the necessary coordination in order to receive the permit.
Section 401 Water Quality Certification
The RWQCB must provide its approval of all permits issued by the Army Corps. Therefore, if an Army
Corps nationwide permit is required for project approval, a Section 401 Water Quality Certification
application will also be submitted to the RWQCB. RES will be responsible for preparing and obtaining
this permit.
Section 7 Biological Assessment
Restoration actions within the mitigation site may have the potential to impact federal-listed wildlife species. As a
result, the Army Corps must consult with USFWS during the processing of the potential Army Corps nationwide
permit. As a part of this consultation, RES will prepare a Section 7 Biological Assessment Report so that the Army
Corps can initiate consultation with USFWS. This report will summarize the status of federal-listed species within
the mitigation site and analyze potential project-related impacts. Avoidance and mitigation measures will also be
provided in this document.
CDFW California Endangered Species Act Coordination
Similarly, restoration actions within the mitigation site may have the potential to impact state-listed wildlife species.
In the event that an Incidental Take Permit (ITP) for impacts to State-listed species is necessary, an application for a
2081 from CDFW will be compiled and submitted with the goal of obtaining a Memorandum of Understanding
(MOU), to be followed by a signed ITP and Notice of Determination or a Consistency Determination of the USFWS
Biological Opinon.
PHASE 5 – RESTORATION IMPLEMENTATION
Habitat Construction
As a facet of our comprehensive design-build project delivery approach, we pride ourselves on our distinctive ability
to provide custom mitigation solutions tailored to each individual client’s needs. In addition to our technical staff, our
in-house resources include specialty ecological construction equipment, vehicles and safety management, plant
nurseries, and project management tools. These means give RES the unique ability within the industry to tackle
complex projects of varying sizes with the capability to problem solve and execute on the permitting, design,
implementation, survey, revegetation, and maintenance & monitoring fronts. Our construction implementation team
will include in-house RES construction oversight staff, design team representatives, and field crews.
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RES will complete all of the tasks required to construct the mitigation habitats described in the approved offsite
mitigation compensatory restoration plan including but not limited to:
Mobilization
Site preparation, including erosion & sediment control
Construction stakeout,
Native plant material acquisition
Grading (if required)
Non-native vegetation removal
Irrigation installation
Native plant installation
Demobilization
As-Built Report
RES will be responsible for submitting as-built drawings of the mitigation site, with accurate maps of the established,
enhanced, and/or restored mitigation habitat to the regulatory agencies following completion of construction. The as-
built drawings shall consist of full-size construction plans, with as-built conditions clearly shown. The as-built
drawings and any associated report must describe in detail any deviation from the approved offsite mitigation
compensatory restoration plan. RES will also incorporate ground photos and aerial drone imagery into the as-built
report to further assist the regulatory agencies in verifying that the habitat was constructed in accordance with the
approved offsite mitigation compensatory restoration plan.
PHASE 6 – MAINTENANCE AND MONITORING
Mitigation Site Maintenance
The mitigation site will be managed in accordance with the offsite mitigation compensatory restoration plan until all
performance standards are met and then governed by the long-term management plan after performance standards are
met. RES will be responsible for maintaining the mitigation site under both plans. RES’ responsibilities will include
review of all available monitoring data, identifying appropriate adaptive management actions, and executing all pre-
determined management tasks outlined in the plans. Our habitat management and maintenance crew will complete
these tasks during required site visits following construction. Potential tasks could include invasive plant species
control, repairing infrastructure such as fences and gates, monitoring for signs of trespass, and all other tasks required
by the plans.
Annual Reporting
In accordance with regulatory agency requirements for mitigation properties, monitoring surveys will be conducted
within the mitigation site to qualitatively and quantitatively assess the condition of the restored habitat. Monitoring
tasks will be completed to ensure the terms of the offsite mitigation compensatory restoration plan are executed and
that suitable data is collected to assess the mitigation site’s progress towards meeting its performance standards.
Examples of quantitative assessments include invasive plant cover surveys and native species plant cover, abundance,
and diversity surveys within aquatic resource areas. Qualitative assessments will be conducted to assess the overall
condition of the mitigation site and identify any additional threats to the preserved, enhanced, restored, or established
resources and habitats not specifically mentioned in the offsite mitigation compensatory restoration plan. RES will
be responsible for completing and submitting the annual reports to the regulatory agencies until all performance
standards are met.
After the mitigation site’s performance standards have been met, RES will be responsible for completing and
submitting annual reports in line with the requirements outlined in the approved long-term management plan.
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CONTRACT DELIVERABLES AND RES REPORTING
Below is a summary of the deliverables RES will provide to City include estimated timing and reporting
requirements. A full project schedule is also included below.
Contract Deliverable Final Product
Delivery
RES Reporting
Phase 1 - Property Due Diligence and Property
Assessment and Warranty
Provide to City
within 60 days of
contract execution
This package will include all the real estate
elements required by CDFW to verify that the
property does not have legal or physical
encumbrances preventing it from being a
mitigation site.
Phase 2 – Baseline Studies Sept-Oct 2023
RES is currently conducting many of these studies.
These will continue through August 2023 to
capture specific biological windows for potential
sensitive species onsite. RES agrees to provide
regular updates of the status of these surveys.
Phase 3 - Draft and Final Offsite Mitigation
Compensatory Restoration Plan Nov-Dec 2023
RES will share initial drafts of the mitigation plan
with City as well as the final draft prior to
submitting to CDFW and other regulatory
agencies. Furthermore, the revised version after
CDFW and other regulatory agency comments are
received will be provided to City prior to
submitting the final mitigation plan. City
comments will be incorporated into the draft and
final if provided.
Phase 4 – Permits Necessary to Implement Mitigation
Plan Jan-Feb 2024
RES will share drafts of the permit applications
with City prior to submission and will update City
on the status of permit preparation and acquisition.
Phase 5 – As-Built Report Nov-Dec 2024
RES will provide City with construction updates
during the implementation of the project and can
host onsite inspections during the construction
phase of the project.
Phase 6 – Annual Reporting and Maintenance 2025-20304
If requested, RES can and will provide a draft of
each annual report prior to submitting to the
regulatory agencies. Comments received from
City will be incorporated into each annual report
prior to submission. If City does not wish to
review each report prior to submission then RES
will copy City when each report is submitted.
5265466.1
4 It is expected that five years of monitoring will be required. However, if the regulatory agencies require longer
monitoring than RES will take on that requirement with no increased price to Permittee.
Reso. No. 10-23, Item 4.3, Adopted 02/27/2023 Page 1 of 3
RESOLUTION NO. 10-23
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN
FINDING THAT THERE IS A PROCLAIMED STATE OF EMERGENCY; FINDING THAT MEETING
IN PERSON WOULD PRESENT IMMINENT RISKS TO THE HEALTH OR SAFETY OF
ATTENDEES AS A RESULT OF THE STATE OF EMERGENCY; AND AUTHORIZING REMOTE
TELECONFERENCED MEETINGS OF THE LEGISLATIVE BODIES OF THE CITY OF DUBLIN
PURSUANT TO AB 361
WHEREAS, all meetings of the City of Dublin’s legislative bodies are open and public, as
required by the Ralph M. Brown Act (Cal. Gov. Code sections 54950 – 54963), so that any member of
the public may attend, participate, and watch the City’s legislative bodies conduct their business; and
WHEREAS, on March 4, 2020, Governor Newsom declared a State of Emergency to make
additional resources available, formalize emergency actions already underway across multiple state
agencies and departments, and help the State prepare for a broader spread of the novel coronavirus
disease 2019 (“COVID-19”); and
WHEREAS, on March 18, 2020, the City Council adopted a resolution ratifying the proclamation
of a local emergency by the Director of Emergency Services due to COVID-19; and
WHEREAS, on March 17, 2020, in response to the COVID-19 pandemic, Governor Newsom
issued Executive Order N-29-20 suspending certain provisions of the Ralph M. Brown Act in order to
allow local legislative bodies to conduct meetings telephonically or by other means; and
WHEREAS, as a result of the COVID-19 pandemic, and pursuant to Executive Order N-29-20 and
its successors, the City Council met primarily virtually through September 2021; and
WHEREAS, on June 11, 2021, Governor Newsom issued Executive Order N-08-21, which,
effective September 30, 2021, ended the provisions of Executive Order N-29-20 that allows local
legislative bodies to conduct meetings telephonically or by other means; and
WHEREAS, on September 16, 2021, Governor Newsom signed AB 361 (2021) which allows for
local legislative bodies and advisory bodies to conduct meetings via teleconferencing under specified
conditions and includes a requirement that the City Council make specified findings. AB 361 (2021) took
effect immediately; and
WHEREAS, under AB 361 (2021), an agency meeting virtually requires that the Governor
declare a State of Emergency pursuant to Government Code section 8625; and
WHEREAS, AB 361 (2021) further requires that state or local officials have imposed or
recommended measures to promote social distancing, or, requires that the legislative body determines
that meeting in person would present imminent risks to the health and safety of attendees; and
WHEREAS, such conditions now exist in the City, specifically, Governor Newsom has declared
a State of Emergency due to COVID-19; and
WHEREAS, since the issuance of Executive Order N-08-21, the highly contagious Delta variant
of COVID-19 has emerged, causing an increase in COVID-19 cases throughout the State and Alameda
Reso. No. 10-23, Item 4.3, Adopted 02/27/2023 Page 2 of 3
County; and
WHEREAS, on November 30, 2021, the Omicron variant was designated as a variant of concern
by the United States; and
WHEREAS, cases of the highly contagious Omicron variant, including a subvariant called BA.2,
continue to occur in Alameda County and require quarantine periods for exposure; and
WHEREAS, the Centers for Disease Control and Prevention (“CDC”) continues to recommend
physical distancing of at least 6 feet from others outside of the household; and
WHEREAS, because of the ongoing existence COVID-19 cases due in part to the highly
contagious Omicron variants of COVID-19, the City is concerned about the health and safety of all
individuals who intend to attend City Council and meetings of the City’s other legislative bodies; and
WHEREAS, the City Council finds that the imminent risks of the City’s legislative bodies holding
in person meetings to the health or safety of attendees exists due in part to the Omicron variants of
COVID-19; and
WHEREAS, the City Council finds, acting as a legislative body pursuant to Government Code
section 54952(a) and for the benefit of all legislative bodies created by the City Council pursuant to
Government Code section 54952(b), that the presence of COVID-19 and the Delta and Omicron
variants would present imminent risks to the health or safety of attendees, staff, and members; and
WHEREAS, teleconference meetings may include hybrid meetings, in which all or some
members of the legislative body meet in person while others attend by teleconference, and members
of the public are either allowed to participate only by teleconference or both in person and by
teleconference (“hybrid meetings”). The purpose of hybrid meetings is to allow for multiple modes of
attending meetings while reducing the risks of COVID-19, including the Delta and Omicron variants;
and
WHEREAS, the City shall ensure that its meetings comply with the provisions required by AB
361 (2021) for holding teleconferenced meetings.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Dublin as follows:
1. The above recitals are true and correct, and incorporated into this Resolution.
2. In compliance with AB 361 (2021), and in order to continue to conduct teleconference
meetings without complying with the usual teleconference meeting requirements of the Brown
Act, the City Council makes the following findings:
a) The City Council has considered the circumstances of the state of emergency; and
b) The state of emergency, as declared by the Governor and City Council, and as specifically
related to cases apparently resulting from the Omicron variant, directly impacts the ability
of the City Council and the City’s legislative bodies, as well as staff and members of the
public, to meet safely in person; and
c) The CDC continues to recommend physical distancing of at least six feet due to COVID-
19 and as a result of the presence of COVID-19, meeting in person would present
imminent risks to the health or safety of attendees, the legislative bodies and staff.
Reso. No. 10-23, Item 4.3, Adopted 02/27/2023 Page 3 of 3
3. City staff is directed to facilitate any teleconference meetings, including hybrid meetings,
of the City Council and City’s legislative bodies in compliance with AB 361, in order to better
ensure the health and safety of the public for a period of thirty days following the adoption of this
resolution.
PASSED, APPROVED, AND ADOPTED this 7th day of February 2023 by the following vote:
AYES: Councilmembers Hu, Josey, McCorriston, Qaadri and Mayor Hernandez
NOES:
ABSENT:
ABSTAIN:
______________________________
Mayor
ATTEST:
_____________________________
City Clerk