HomeMy WebLinkAbout1996-07-16; City Council; 13744; AUTHORIZATION FOR MITIGATION CREDITS PURCHASEa E 19c 2 4
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CITY MTG. 7-16-96
DEPT. ENG CITY
AUTH 0 R I ZAT I 0 N F 0 R M IT I GAT I 0 N
CREDITS PURCHASE
RECOMMENDED ACTION:
Ado t Resolution No. 46d58 authorizin the purchase of 2.1 acres for r
execute the agreement with Bank of America.
for P he Poinsettia Lanierchange 51. idening and authorizing the I
the coastal California gnatcatcher, a federa a y listed threatened species, ir
permitting fort E e project.
condition required the purchase and conservation of J) .I acres of an off sit
the coasta 9 California gnatcatcher and is acceptable to the Fish anc
ITEM EXPLANATION:
In late 1994 when construction of the Poinsettia Lane/l-5 Interchange \ was beginning, Caltrans informed the City that grading for the southboun!
coastal sage scrub vegetation must be mitigated. The impact to the protec was not antici ated nor included in Caltrans‘ original environmental re
In order to avoid delay of the project, Caltrans applied for and received Section 7 permit which authorized the construction to roceed with conditic
coastal sa e scrub or other habitat which provides a clear preservation I
Service. After studying various alternatives, staff has concluded that the to satisfy this requirement would be through purchase of 2.1 acres of I credits in the Carlsbad Highlands Conservation Bank. The involved fec State resource agencies have concurred that this purchase will meet the I requirement. The area to be purchased is within Carlsbad’s Habitat Mar Program.
Since this is not a purchase of land in fee title, there was no property a However, the price IS consistent with what other entities have paid for con
credits. The area from which the credits are purchased is several acres o aside (a land bank) for endan ered species and agencies “buy” credits tc the habitat area lost throug% development, in this case Poinsettia Interchange Widenin . Alternatives to purchasing credits in the land be
more costly than purchasin credits in land estab ished and acceptable tc
Staff is recommending that Council authorize the purchase of 2.1 a( Carlsbad Highlands Conservation Bank for mitigation credits at a cost o and authorize the Mayor to execute an agreement with Bank of America the purchase. Funds are available in the project account.
would impact a small amount of coastal sa e scrub vegetation. As the h
be for the Cit to fin 1 and buy property or use City property to set asidc space for en cy angered species. The process to ualify land would be ler
agencies for mitigation purc p1 ases. 7
FISCAL IMPACT:
Funds in the amount of $39,900 are available in the Poinsettia Interchange Widening Project Account No. 430-820-1 890-3269.
EXHIBITS:
1. Resolution No.9h-258 authorizin the purchase of 2.1 acres for
2.
credit for Poinseme/l-5 lnterc \ ange Widening.
Letter from U.S. Fish and Wildlife Service dated May 16,1996.
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RESOLUTION NO. 96-258
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA, AUTHORIZING THE PURCHASE OF
INTERCHANGE WIDENING.
WHEREAS, the City Council of the City of Carlsbad, California has
previously found it necessary and in the public interest to construct
improvements to the Poinsettia Lanell-5 Interchange, and
2.1 ACRES FOR MITIGATION FOR THE POINSETTIA LANEII-5
WHEREAS, such construction resulted in an impact to an area of
coastal sage scrub vegetation which requires mitigation; and
WHEREAS, the City of Carlsbad is required to mitigate this impact by
purchasing 2.1 acres of an off-site area of coastal sage scrub or other habitat
which provides a clear preservation benefit to the coastal California
gnatcatcher and is acceptable to the Fish and Wildlife Service (Service), and
WHEREAS, Service has approved the purchase of 2.1 acres from the
Carlsbad Highlands Conservation Bank;
NOW, THEREFORE, be it hereby resolved as follows:
1. That the above recitations are true and correct.
2. That the City Council of the City of Carlsbad, California authorizes
the purchase of 2.1 acres from the Carlsbad Highlands Conservation Bank.
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3. That the City Council of the City of Carlsbad authorizes the Mayor to
execute the agreement with Bank of America, attached hereto as Exhibit "A"
and made a part hereof, for said purchase.
PASSED, APPROVED AND ADOPTED at a regular meeting of the
Carlsbad City Council held on theiuday of JULY, 1996 by the following
vote, to wit:
AYES; Council Members Lewis, Nygaard, Kulchin, Finnila, Hall
NOES: None
ABSENT: None
ATTEST:
(SEAL)
(2e9stk, 4.Q-
ALETHA L. RAUTENKRANZ, City CIdrk
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CON8ERYATION CREDIT
PURCHASE AGREEMENT AND ACKNOWLEDGMENT
THIS CONSERVATION CREDIT PURCHASE AGREEMENT AND
ACKNOWLEDGMENT ("Agreement") is entered into this
between BA Properties Inc., a Delaware corporation ("Seller") and The City of Carisbad,
California ('I Purc haser" ).
A.
Agreement (the "Iti2nlementat;on Agreement") dated April 5, 1995 by and among Seller, as
"Property Owner", The California Department of Fish and Game ("CDFG"), and The United
States Fish and Wildlife Service ("USFWS") (CDFG and USFWS are referred to collectively
$ereinafter the "Resource Agencies"), the Resource Agencies have acknowledged the creatior
the Carisbad Highlands Conservation Bank (the "Conservation Bank") and the right of Seller
sell "Conservation Credits" as provided further therein.
B. Purchaser desires to mitigate the loss of certain natural habitat values on real property
located in San Diego County California coniniorily known as the interchange at Interstate 5 a~
Poinsettia Lane (the "Purchaser's Property").
C. Purchaser has agreed to purchase from Seller, and Seller has agreed to sell to Purchase
2.1 Conservation Credits (the "Conveyed Credits") from the Conservation Bank on the terms
and conditions set forth herein.
day of , 1996 by:
Pursuant to that certain Carlsbad Highlands Conservation Bank Implementation
NOW, TIlEREI:ORE, in Consideration of' the agreements and acknowledgments set fo
herein and for other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, Seller and Purchaser hereby agree and acknowledge as follows:
1. Purchaser has deposited with tlie State of California via the California Wildlife
Conservation Board (tlie "Board"), or shall deposit with the Board on or before July 1, 1996 (t
"Closing Date"), immediately available funds in the amount of $4,863.60 (the "Endowment
Deposit"), and Seller has received, or shall receive prior to the Closing Date, the California
Department of Fish and Game's written acknowledgment of its receipt of the Endowment
Deposit in the forni attached hereto as Exhibit A ("Endowment Deposit Receipt"). The
Endowment Deposit is a one-time payment. Thc City shall have no further obligation to pay
monies or otherwise participate in the maintenance of Purchaser's Property.
2.
Date, imnicdiatcly available funds in thc amount of $35,036.40.
3.
execute and deliver lo I'urcliascr tlic Ackuo\clcdgnicn[ of' Sale of Conservation Crcdits attache
hcrcto as I:uliihi~ 13.
I'urchascr has dcposikd with Seller. or shall deposit with Seller on or before the Closii
IJpon salisl'action of'thc conditions sct forth in I'aragraphs 1 and 2 above, Seller shall
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4.
Credits shall be made on an “AS IS, WHERE IS, WITH ALL FAULTSt’ basis as provided foi
the Implementation Agreement; and (b) no representations or warranties have been made or a
made and no responsibility has been or is assumed by Seller or by any officer, agent, affiliate,
representative acting or purporting to act on behalf of Seller as to: (I) the conservation value c
the property conveyed to the Resource Agencies in establishing the Conservation Bank, (ii) tk
conservation value or mitigation requirements of the Purchaser’s Property, (iii) the acceptance
the Conveyed Credits by the Resource Agencies or any other governmental agency as mitigat
for the loss of habitat values associated with the Purchaser’s Property, or (iv) any other fact or
circumstance which might affect the Conservation Bank, the Purchaser’s Property, or the
Conveyed Credits.
Purchaser acknowledges and agrees that: (a) the purchase and sale of the Conveyed
5. Purchaser ackiiowledges and agrees that the purchase and sale of the Conveyed Crel
shall be made with the City having no further responsibilities for the Property as describe
the Implementation Agreement.
6.
Paragraphs 1 and 2 above have not been satisfied by the Closing Date, at Seller’s election
terminate and neither party shalI have any further obligations hereunder except as provide
Paragraph 7 below.
7.
agrecmcnt, or dealings regarding the Conveyed Crcdits with, nor any communication in
conncction with the subjcct matter of this transaction through, any consultant, broker, age
finder, or other person who can claim a right to a consultant fee, commission or finder‘s fc
in connection with the sale contemplated herein, other than the Seller’s consulting contrac
with McCollum Associates and its subconsultant the Sauls Company (collectively
“h/lcCollum”). The Seller shall be solely responsible for any consulting fee owed to
McCollum and agrees to indemnifj, defend and hold Buyer harmless with respect thereto
thc event that any other consultant, broker or finder perfects a claim for a consultant fee o
commission or finder’s fee based upon any such contract, agreement, dealings or
communication, the party through whom such claim is made shall be solely responsible fc
and shall indemnify, defend, and hold harmless the other party from and against said
cominission or fee and all costs and expenses (including without limitation reasonable
attomcys’ fces) incurred by the other party in defending against such claim. The provisior
of this Section 8 shall survive the termination of this Agreement.
8. I’urcliaser and Seller agree that all understandings and agreements heretoforc niadc
bctwccn them or thcir rcspcctivc agents or rcprcscntativcs are merged in this Agreement a
~hc Exhibits attachcd hcrctn, arid alonc fully and complctcly express thcir agreement with
respect to tlic suhjcct iiia[(cr Iicrcol‘and supersede all prior agt-ccmcnts and understanding
bct\vccii thc parties relating to sucli sihjcct matter. I’urchascr and Seller further agree tha
Time is of the essence in this Agreement. In the event the conditions set forth in
its sole arid absolute discretion, upon written notice to Purchaser, this Agreement shall
Seller and Purchaser each represent to the other that it has not had any contract,
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purchaser has no responsibilities or obligations whatsoever regarding the "Conservation
Credits" except as are expressly stated in this Agreement.
9. All deposits, except the Endowment Deposit, and any notice required or permitted
be made or given under this Agreement shall be made and delivered to the parties at the
addresses set forth below each party's respective signature. All notices shall be in writing
and shall be deemed to have been given when delivered by courier, when transmitted by
facsimile (upon confirmation of successfully completed transmission), or upon the expirat
of two (2) business days after the date of deposit of such notice in the United States mail,
registered or certified mail, postage prepaid, return receipt required.
10. This Agreement shall be governed and construed in accordance with the laws of th
'any provision of this Agreement, or in the event of any litigation arising out of or related 1
this Agreement, the party not prevailing in such dispute or litigation shall pay any and all
costs and expenses incurred by the other party in establishing or defending its rights
hereunder, including, without limitation, court costs and reasonable attorneys' fees.
1 1. This Agreement may be executed and delivered in any number of counterparts, eac
of which so executed and delivered shall be deemed to be an original and all of which sha
constitute one and the same instrument.
State of California. In the event a dispute arises concerning the meaning or interpretation
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WHEREUPON, this Agreement has been executed as of the dats first-above writte
SELLER:
BA PROPERTIES NC., a Delaware corporation
By:
Name:
Its:
By:
Name:
Its:
Corporate Real Estate - ORE0 #I20005
450 B Street, Suite 620
San Diego, CA 92 10 1
Attention: Mr. James Jackson
Fax No. (6 19) 5 15-5655
PURCHASER:
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Name: CLAUDE A. LEWIS
Its: Playor
City of Carlsbad
2075 Las Palmas Drive
Carlsbad, CA 92009
July 17, 1996
I'nrdiaw Agrcciiicnl I"1ge 4
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EXHIBITA
ENDOWMENT DEPOSIT RECEIPT
On behalf of the California Wildlife Conservation Board, the undersigned hereby
acknowledges receipt of a check in the amount of $4,863.60 in connection with the sale of
two and one tenth (2.1) Conservation Credits fiom the Carlsbad Highlands Conservation
Bank. Such funds shall be held and applied in accordance with the terms of the Carlsbad
Highlands Conservation Bank Implementation Agreement dated April 5,1995.
Signed:
Title:
Dated:
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EXHIBITB
ACKNOWLEDGMENT OF SALE OF CONSERVATION CREDITS
The undersigned seller hereby acknowledges that it ‘has sold and conveyed to the City of
Carlsbad, (“Purchaser”), two and one tenth (2.1) Conservation Credits fiom the Carlsbad
Highlands Conservation Bank. All terms of this conveyance shall be governed by the
provisions of the Conservation Credit Purchase Agreement and Acknowledgment between
Purchaser and the undersigned dated , 1996.
Seller:
BA PROPERTIES INC., a Delaware Corporation
By:
Name:
Its:
By:
Name:
Its:
Dated:
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Exhib al - - -_ - - - a I""
lIlJ1 1 I VU i ALA "._I
United States Department of the Interior
FISHAND WILD= SERVICE
blogicrl SarviCa
Cadsbad Field offioe 2730 Lolra Awm WC%
Guisbnd, CalifOrnia 92008
May 16,1996
Lloyd Hubbs, P.E.
City of Carlsbad
2075 Las Palmas Dr
CarIsbad, CA 92009-1576
RE: Mitigation Credits for Poinsettia Land-5 Interchange (1-6-95-F-16)
Dear Mr. Hubbs:
This letter is in response to your letter, dated April 9,1996, requesting assurance of mitigation credits for Iand purchased as mitigation for Cod Sage Scrub habitat loss on the Poinsettia f. Interchange Modification project (I-6-95-F-16) in Carisbad, Sap Diego County,
The U.S. Fish and Widlife Service (Service) hereby acknowtedges that the 2.1 mitigation me&
that the City of Carlsbad iS purdmhg fiom the Carlsbad Highlands Conservation Bank, is
acceptable for mitigation in the above-referenced project-
i
@JW bEi2:mz:
#1-6-95-F-16
CG: Bill Tippets, CDFG
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