HomeMy WebLinkAbout1997-02-11; City Council; 14042; 20 acres of mitigation credits 3184 AGMT APN 205-060-04 CANNON RD Cannon Rd. west 20 acres purchase CREDIT HIGHLAND DR NUISANCE PCH PROJ Res 97-59 Wa
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DEPT. HD.& AB# /4:(3Y z TITLE: AUTHORIZATION TO PURCHASE
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CITY ATTY. MTG. 2/11/97 CANNON ROAD WEST, PROJECT NO. 31 84, AND
DEPT, ENG CITY MGR,
A BILL a I9
20 ACRES OF MITIGATION CREDITS FOR
RESERVES FOR FUTURE PROJECTS
RECOMMENDED ACTION:
Adopt Resolution No. 93 c s 9
Cannon Road West, Project No. 31 84, and reserves for future projects.
authorizing the purchase of 20 acres of mitigatio
ITEM EXPLANATION:
With the construction of the Cannon Road West Improvement Project, an area of coast:
will be destroyed. As the habitat for the coastal California gnatcatcher, a Federally liste
species, impacts to the coastal sage scrub vegetation must be mitigated. As mitigatioi required to purchase and conserve acreage credits in an off site area of coastal sage SI
habitat which provides a clear preservation benefit to the gnatcatcher and is acceptat:
and State agencies. The amount of acreage credits that the City will be requirec
because of construction of Cannon Road West Improvements has not been deterr
Federal and State agencies but will be no less than 8 and not more than 16 acres
credits. Staff is recommending that the City purchase 20 acres at this time because :
is becoming difficult to obtain, especially in Carlsbad. Acreage credits that are not USE
the construction of Cannon Road West Improvements will be reserved and used to rr
projects such as the golf course. The current cost of one acre of mitigation credit
Twenty acres would cost $350,000. Funds to purchase up to 16 acres are available it
Road West project account. Funds to purchase the credits to reserve for future projec
from the General Capital Construction fund balance with City Council’s authorization.
This is not a purchase of land in fee title so there is no property appraisal. The price o acre credit ($350,000 for 20 acre credits) is consistent with what other entities h
mitigation credits. The $17,500 per acre cost includes a $1,647.52 endowment del:
paid to the California Department of Fish and Game. The area from which the CI
purchased is the Carlsbad Highlands Conservation Bank (a Land Bank). This Land Bar
a large area of land set aside for endangered species. Agencies “buy” credits to mitiga
area lost through development. Alternatives to purchasing credits in a land bank WOI
City to find and buy property or use City property to set aside in open space for endang
The process to qualify land would be lengthy and more costly than purchasing cr
The Carlsbad Highlands Conservation Bank recently became available. This is the on1 Carlsbad; however there are land banks in other cities. The Carlsbad Highlands Cons
is within Carlsbad’s Habitat Management Program.
Staff’s recommended action to City Council is as follows:
established and acceptable to Federal and State agencies for mitigation purchases.
+ City Council authorize the purchase of 20 acres of mitigation credits from
Highlands Conservation Bank at a cost not to exceed $350,000.
+ Authorize the Mayor to execute an agreement with Paul K. Tchang, Trust
Escondido Serenas Development, Inc., owners of the Carlsbad Highlands
Bank.
6 Authorize the Finance Director to appropriate up to $210,000 from the G
Construction fund balance.
, a
Page 2 of Agenda Bill No. a / i DL/%
FISCAL IMPACT:
Eight to 16 acres of mitigation credits are required for Cannon Road West lmprovemen
a total cost up to $280,000 are available and have been appropriated in the project accc
Funds to purchase up to 12 acres of mitigation credits at a cost not to exceed $211 appropriated from the General Capital Construction fund balance. Future capital proje
mitigation credits will “purchase” them from the City’s reserve by reimbursing the GE
Construction fund balance.
EXHIBITS:
1. Resolution No. 9 ’? - s? - authorizing the purchase of mitigation credits for (
West, Project No, 31 84, and reserves for future projects.
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RESOLUTION NO. 9 7 - 5 9
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
ACRES FOR MITIGATION CREDITS FOR CANNON ROAD WEST,
PROJECT NO. 3184, AND RESERVES FOR FUTURE PROJECTS.
CARLSBAD, CALIFORhllA, AUTHORIZING THE PURCHASE OF 20
WHEREAS, the City Couricil of the City of Carlsbad, California has previou
necessary and in the public interest to construct improvements known as Cannon F
and
WHEREAS, such construction will result in an impact to an area of coastal
vegetation which requires mitigation; and
WHEREAS, the City of Carlsbad is required to mitigate this impact by purchas
in an off-site area of coastal sage scrub or other habitat which provides a clear f
benefit to the coastal California gnatcatcher and is acceptable to Federal and Stat
and
WHEREAS, the Carlsbad Highlands Conservation Bank has been accepted
and State agencies for mitigation purposes.
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
20 acres of mitigation credits from the Carlsbad Highlands Conservation Bank.
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3. That the City Council of the City of Carlsbad authorizes the Mayor to E
agreement with Paul K. Tchang, Trustee U/T/A and Escondido Serenas Develop
attached hereto as Exhibit “A” and made a part hereof, for said purchase.
4. That the City Council hereby authorizes the Finance Director to appropria
not-to-exceed $21 0,000 from the General Capital Construction fund balance.
PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad ’
held on the Ilth day of February , 1997 by the following vote, to wit:
AYES: Council Members Lewis, Nygaard, Kulchin and Hall
NOES: None
ABSENT Council Member Finnila
ATTEST
ALETHA L. RAUTENKRANZ, City Clerk \ (SEAL)
dJLLti&/Q&
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CONSERVATION CREDIT
PURCHASE AGREEMENT AND ACKNOWLEDGMENT
THIS CONSERVATION CREDIT PURCHASE AGREEMENT AND
ACKNOWLEDGMENT (“Agreement”) is entered into this 12 t h day of FEBRUARY , 199
and between Paul K-Tchang, Trustee U/T/A June 16,1978, as to an undivided 80% interest, a
to Escondido Serenas Development, Inc., a Nevada corporation, as to an undivided 20% inten
(collectively referred to as “Sellef’) and The City of Carlsbad, California (“Purchaser”).
A. Pursuant to that certain Carlsbad Highlands Conservation Bank Implementation Agreer
of Fish and Game (“CDFG”), and the United States Fish and Wildlife Service(“USFWS”) (C1
and USFWS are referred to collectively hereinafter as “Resource Agencies”) dated April 5, 19
and assigned to Seller (“Property Owner”) pursuant to that Assignment from BA Properties In
Seller dated January 9,1996, the Resource Agencies have acknowledged the creation of the
Carlsbad Highlands Conservation Bank (the “Conservation Bank”) and the right of Seller to st
“Conservation Credits” as provided further therein.
B . Purchaser desires to mitigate the loss of certain natural habitat values on real property
located in San Diego County California commonly known as Cannon Road (the “Purchaser’s
Propert$’).
C. Purchaser has agreed to purchase from Seller, and Seller has agreed to sell to Purchast
Conservation Credits (the “Conveyed C redit$’) from the Conservation Bank on the terms and
conditions set forth herein.
(the “hulementation Arzreemenf’) - by and among BA Properties Inc, and the California Depart
NOW, THEREFORE, in consideration of the agreements and acknowledgments set fc
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 the State of California via the California Wildlife
Conservation Board (the “Board”), or shall deposit with the Board on or before
(the ‘‘Closiw Date”), immediately available funds in the amount of $32,950.40 (the “Endow
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 Dei
(the ‘‘Endowme nt Deuosit Rece ipt’). The Endowment Deposit is a one-time payment. The
Purchaser shall have no further obligation to pay monies or otherwise participate in the
maintenance of the Conservation Bank.
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2.
Date, immediately available funds in the amount of $317,049.60.
3.
execute and deliver to Purchaser, the Acknowledgment of Sale of Conservation Credits attache(
hereto as Exhibit A.
4. Purchaser acknowledges and agrees that: (a) the purchase and sale of the Conveyed Cre
shall be made on an “AS IS, WHERE IS, WITH ALL FAULTS” basis as provided for in the
Implementation Agreement; and (b) no representations or warranties have been made or are ma
and no responsibility has been or is assumed by Seller or by any officer, agent, affiliate, or
representative acting or purporting to act on behalf of Seller as to: (i) the conservation value of 1
property conveyed to the Resource Agencies in establishing the Conservation Bank, (ii) the
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 mitigatio
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.
5.
the Implementation Agreement.
6. Time is of the essence in this Agreement. In the event the conditions set forth in
Paragraphs 1 and 2 above have not been satisfied by the Closing Date, at Seller’s election in its
sole and absolute discretion, upon written notice to Purchaser, this Agreement shall terminate a
neither party shall have any further obligations hereunder except as provided in Paragraph 7 be
7. Seller and Purchaser each represent to the other that it has not had any contract, agreem
or dealings regarding the Conveyed Credits with, nor any communication in connection with tl
subject matter of this transaction through any consultant, broker, agent, finder, or other person
who can claim a right to a consultant fee, commission, or finder’s fee in connection with the s<
contemplated herein. In the event that any other consultant, broker, agent, or finder perfects a
claim for a consultant fee or cornhission or finder’s fee based upon any contract, agreement,
dealings, or communication, the party through whom such a claim is made shall be solely
responsible for and shall indemnify, defend, and hold harmless the other party from and again
said commission or fee and all costs and expenses (including without limitation reasonable
attorney’s fees) incunred by the other party in defending against such claim. The provisions oj
Section 7 shall survive the termination of this Agreement.
Purchaser has deposited with Seller, or shall deposit with Seller on or before the Closin
Upon satisfaction of the conditions set forth in Paragraphs 1 and 2 above, Seller shall
Purchaser acknowledges and agrees that the purchase and sale of the Conveyed Credits
shall be made with the Purchaser having no further responsibilities for the Property as describe
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8. Purchaser and Seller agree that all understandings and agreements heretofore made beh
them or their respective agents or representatives are merged in this Agreement and the Exhibit
attached hereto, and alone fully and completely express their agreement with respect to the sub-
matter hereof and supersede all prior agreements and understandings between the parties relati
such subject matter. Purchaser and Seller further agree that Purchaser has no responsibilities (
obligations whatsoever Egarding the Conveyed Credits except as are expressly stated in this
Agreement.
9. All deposits, except the Endowment Deposit, and any notice required or permitted to b
forth below each party’s respective signature. All notices shall be in writing and shall be deen
to have been given when delivered by courier, when transmitted by facsimile (upon confmat
of successfully completed transmission), or upon the expiration of five (5) business days afte
date of deposit of such notice in the United States mail, registered or certified mail, postage
prepaid, return receipt requested.
10. This Agreement shall be governed and construed in accordance with the laws of the S
California, In the event a dispute arises concerning the meaning or interpretation of any prov
of this Agreement, or in the event of any litigation arising out of or related to this Agreement,
party not prevailing in such dispute or litigation shall pay any and all costs and expenses incu
by the prevailing party in establishing or defending its rights hereunder, including, without
Limitation, court costs and reasonable attorney’s fees.
1 1. This Agreement may be executed and delivered in any number of counterparts, each c
which so executed and delivered shall be deemed to be an original and all of which shall cons
one and the same instrument.
made or given under tbs Agreement shall be made and delivered to the parties at the addressel
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WHEREUPON, this Agreement has been executed as of the date fist above written.
SELLER:
e U/T/A June 16,1978
Escondido Serenas Development, Inc.
I E. Michaelsen, President
Paul R. Tchang Trustee U/T/A June 16,1978
Escondido Serenas Development, Inc.
C/O Techbilt Companies
3575 Kenyon St.
San Diego, CA 921 10
Fax NO. (619) 223-2865
PURCHASER: City of Carkbad, a municipal corporation
..La6 layAm
By; kCLAUD3 A. tEw AyOR
February 12, 1997
Date.
City of Carlsbad 2075 Las Palmas Drive Carlsbad, CA 92009
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EXHIBITA
ACKNOWLEDGMENT OF SALE OF CONSERVATION CREDITS
l".he undersigned Seller hereby acknowledges that it has sold and conveyed to the Ciky of Carls
("Purchaser") twenty (20) Conservation Credits from the Carkbad Highlands Conservation B.
AU terms of thk conveyance shall be governed by the provision of the Conservation Credit
Purchase Agreement and Acknowledgment between Purchaser and the undersigned dated
SELLER:
Paul K. Tchang Trustee U/T/A June 16,1978
Paul K. Tchang, Trustee
Escondido Serenas Development, Inc.
a Nevada corporation
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John E. Michaelsen, President