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HomeMy WebLinkAbout1998-02-03; City Council; 14543; 3184 APN 205-060-04 CANNON RD Cannon Rd. west mitigation credits CREDIT HIGHLAND DR Manchester Ave. Mitigation Bank MITIGATION Mitigation credits 6.2 acres purchase NUISANCE PROJ Res 98-27 WMTG. 2/03/98 CANNON ROAD WEST Adopt Resolution No. q8 -97 Cannon Road West, Project No. 3184, from the Manchester Avenue Mitigation Bank. authorizing the purchase of 6.2 acres of mitigation ( ITEM EXPLANATION: With the construction of the Cannon Road West Improvement Project, the U. S. Fish ar Service and California Department of Fish and Game are requiring the City to purchase 6.: southern maritime chaparral mitigation credits as required by the section 4d Interim Hal Permit. These credits are available from the Manchester Avenue Mitigation Bank at $215,964.60. Funds to purchase the credits are available in the Cannon Road West project ac This is not a purchase of land in fee title so there is no property appraisal. The price of $34,( acre credit ($21 5,964.60 for 6.2 acre credits) is consistent with what other entities have paid mitigation credits. The per acre credit cost includes a $1,566.00 endowment deposit which the State of California Center for Natural Lands Management. The mitigation credits that art from the Manchester Avenue Conservation Bank are part of the Whelan Ranch Conservatic the City of Encinitas. It is operated by Tech-Bilt, Inc. The area from which the credits will be consists of a large area of land set aside for endangered species. Agencies “buy” credits ‘ the habitat area lost through development. Alternatives to purchasing credits in a land bank for the City to find and buy property or use City property to set aside in open space for el species. The process to find and qualify land would be lengthy and more costly than purchas in land established and acceptable to Federal and State agencies for mitigation purchases. Staffs recommended action to City Council is as follows: City Council authorize the purchase of 6.2 acres of mitigation credits from the h Avenue Conservation Bank at a cost of $21 5,964.60. Authorize the Mayor to execute an agreement with Tech-Bilt, Inc., owner of the h Avenue Conservation Bank. The acquisition of land for wildlife conservation purposes is a categorical exemption per 1531 3 of the CEQA guidelines. FISCAL IMPACT: TOTAL APPROPRIATIONS TO DATE Expenditures to Date $1,994,538 Contractual Obligations $1,695,699 Mitigation Credit Purchase $21 5,965 Additional Estimated Costs to 6/30/98 $1,166,441 TOTAL ESTIMATED COSTS TO 6130198 $5,072,643 ESTIMATED REMAINING BALANCE 6/30/98 $345,494 Funds to purchase the 6.2 acres of mitigation credits at a cost of $215,964.60 are availabll been appropriated in the project account. $541 8,137 Page 2 of Agenda Bill No. %,5Y3 0 EXHl BITS: 1. Resolution No. 98 pJ 9 West. Conservation Credit Purchase Agreement and Acknowledgment. authorizing the purchase of mitigation credits for Cannon 2. 3. Project Location Map. 4. Manchester Avenue Conservation Bank Location Map. 1 2 3 4 5 6 7 8 9 10 I1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 uu I .- r<zg 0 0 RESOLUTION NO. 98-27 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, AUTHORIZING THE PURCHASE OF MITIGATION CREDITS FOR CANNON ROAD WEST, PROJECT NO. 3184. WHEREAS, the City Council of the City of Carlsbad, California has previously necessary and in the public interest to construct improvements known as Cannon Roa and WHEREAS, such construction will result in an impact to 3.1 acres of southern I chaparral vegetation which requires mitigation; and WHEREAS, the United States Fish and Wildlife Service and California Departmen and Game require mitigation at a ratio of 2:l for a total of 6.2 acres as a condition of the 4d Interim Habitat Take Permit; and WHEREAS, the City of Carlsbad is required to mitigate this impact by purchasing in an off-site area of southern maritime chaparral or other habitat which is acceptable to and State agencies; and WHEREAS, the acquisition of land for wildlife conservation purposes is cate exempt from environmental review per Section 15313 of the CEQA Guidelines; and WHEREAS, the Manchester Avenue Conservation Bank has been accepted by and State agencies for mitigation purposes. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of C California, as follows: 1. 2. That the above recitations are true and correct. That the City Council of the City of Carlsbad, California, authorizes the pur 6.2 acres of mitigation credits from the Manchester Avenue Conservation Bank. Ill Ill 111 /I/ Ill 0 3. That the City Council of the City of Carlsbad, California authorizes the ched hereto as Exhibit "A" and rnac hereof, for said purchase. PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad Cit held on the 3rd day of February , 1998 by the following vote, to wit: AYES: Council Members Lewis, Finnila, Nygaard, Kulchin, and Hall (SEAL) e 8 CONSERVATION CREDIT PURCHASE AGREEMENT AND ACKNOWLEDGMENT THIS CONSERVATION CREDIT PURCHASE AGREEMENT AND ACKNOWLEDGMENT ("Agreement") is entered into this between Tech-Bilt, Inc., ("Seller") and the City of Carlsbad ("Purchaser"). A. Agreement (the "Imdementation Ameement") dated September 30,1997 by and among Seller, as "Property Owner", The California Department of Fish and Game ("CDFG), and The United States Fish and Wildlife Service (,lUSFWSt') (CDFG and USFWS are referred to collectively hereinafter the "Wildlife Agencies"), the Wildlife Agencies have acknowledged the creation of the Manchester Avenue Conservation Bank (the "Conservation Bank") and the right of Seller to sell southern maritime chaparral and multispecies "Conservation Credits" as provided firrther therein. B. located in San Diego County California commonly known as Cannon Road Alignment (the "Purchaser's Pro-mrtv"). C. 6.2 southern maritime chaparral Conservation Credits (the "Conveyed Credits") fiom the Conservation Bank on the terms and conditions set forth herein. day of - 1998 by and Pursuant to that certain Manchester Avenue Conservation Bank Implementation Purchaser desires to mitigate the loss of certain natural habitat values on real property Purchaser has agreed to purchase fiom Seller, and Seller has agreed to sell to Purchaser NOW, THEREFORE, in consideration of the agreements and acknowledgments set forth 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. The purchase price for the Conveyed Credits shall be $215,964.60 (the "Purchase Price"). 2. Purchaser has deposited with the Center for Natural Lands Management (the "Center"), 01 shall deposit with the Center on or before March 1, 1998 (the "Closing Date"), immediately available funds in the amount of $9,709.20 (the "Endowment Deposit"), and Seller has received, or shall receive prior to the Closing Date, the Center's written acknowledgment of its receipt of the Endowment Deposit in the form attached hereto as Exhibit A ("Endowment Deposit Receint"). 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 3. Purchaser has deposited with Seller, or shall deposit with Seller on or before the Closing Date, immediately available funds in the amount of $206,255.40. 4. Upon satisfaction of the conditions set forth in Paragraphs 2 and 3 above, Seller shall execute and deliver to Purchaser the Acknowledgment of Sale of Conservation Credits attached Purchase Agreement Manchester Avenue Conservation Bank Page 1 of 4 v.9169; 0 aB hereto as Exhibit B. 5. Purchaser acknowledges and agrees that: (a) the purchase and sale of the Conveyed Credits 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 made 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 the property conveyed to the Wildlife Agencies in establishing the Conservation Bank, (ii) the conservation value or mitigation requirements of the Purchaser's Property, (iii) the acceptance of the Conveyed Credits by the Wildlife Agencies or any other governmental agency as mitigation 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 Purchaserk Property, or the Conveyed Credits. 6. shall be made with the Purchaser having no further responsibilities for the Property as described in the Implementation Agreement. 7. Time is of the essence in this Agreement. In the event the conditions set forth in Paragraphs 2 and 3 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 and neither party shall have any fiuther obligations hereunder except as provided in Paragraph 8 below. 8. agreement, or dealings regarding the Conveyed Credits with, nor any communication in connection with the 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 sale contemplated herein, other than the Seller's consulting contract with McCollum Associates ("McCollum"). The Seller shall be solely responsible for any consulting fee owed to McCollum and agrees to indemnify, defend and hold Buyer harmless with respect thereto. In the event that any other consultant, broker or frnder perfects a claim for a consultant fee or 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 for and shall indemnify, defend, and hold harmless the other party fiom and against said commission or fee and all costs and expenses (including without limitation reasonable attorneys' fees) incurred by the other party in defending against such claim. The provisions of this Section 8 shall survivc the termination of this Agreement. 9. Purchaser and Seller agree that all understandings and agreements heretofore made between them or their respective agents or representatives are merged in this Agreement and the Exhibits attached hereto, and alone hlly and completely express their agreement with respect to the subject matter hereof and supersede all prior agreements and understandings between the parties relating to such subject matter. Purchaser and Seller further agree that Purchaser has no Purchaser acknowledges and agrees that the purchase and sale of the Conveyed Credits Seller and Purchaser each represent to the other that it has not had any contract, Purchase Agreement Manchester Avenue Conservation Bank Page 2 of 4 v.9165 0 0 responsibilities Or ob!$j?!!hS WhilkQeY$r €e@&& the "(&fi~$N@~QQ creailf Qx$$p\ $3 aG expressly stated in this Agreement. 10. All deposits, except the Endowment Deposit, and any notice required or permitted to 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 confirnation of successfully completed transmission), or upon the expiration of two (2) bushes, days after the date of deposit of such notice in the United States mail, registered or certified rnai postage prepaid, return receipt required. 1 1. of California. In the event a dispute arises concerning the meaning or interpretation of any provision of this Agreement, or in the event of any litigation arising out of or related to 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. This Agreement shall be governed and construed in accordance with the laws of the Sta& 12. which so executed and delivered shall be deemed to be an original and all of which shall constitute one and the same instrument. This Agreement may be executed and delivered in any number of counterparts, each of Purchase Agreement Manchester Avenue Conservation Bank Page 3 of 4 v.9169' 0 0 WHEREUPON, this Agreement has been executed as of the date first-above written. SELLER: TECH-BILT, Inc., By: Name: Its: By: Name: Its: TECH-BILT, I~c. P.O. Box 80036 San Diego, CA 92138 Attention: Mr. Ted Tchang Fax NO. (6 19) 223-2865 -y UV -- Name: Claude A. Lewis Its: City of Carlsbad 2075 Las Pahas Drive Cadsbad, CA 92009 Attention: Mr. Michael Bock Mayor Fax NO. (760) 438-0894 Purchase Agreement Manchester Avenue Conservation Bank Page 4 of 4 v.916 0 0 NOT TO SCALE 1 0 d, WRITE IT- DON'T SAY IT! Date 21 5 1 Sherri Howard, Engineering UReply Wanted To From Sherrie Worrell, Deputy City Clerk UNO Reply Necessary Attached per your request are the two original agreements that have bec signed by the Mayor and are ready for further processing. Once the agreements have been fully executed please return one to our c with a capy of Exhibit A and Exhibit B in order to assure that our recc are complete. Thank you. __ %4tdl.& Au-6 @ --ba -ytuw mq &L- Y %'.* %*9Fn-- =j 4h reLcww 4ode@ \ *- e 'CITY OF CA D 2075 LAS PALM CARLSBAD, CALIFORNIA 92009-1 576 (760) 438-1 161 ENGINEERING DEPARTMENT AGENDA BILL FOR 2/3/98 CITY COUNCIL TO City Clerk WE ARE SENDING YOU IxI Attached 0 Under separate cover via the followi Shop Drawings [7 Prints 0 Plans 0 Samples [7 Specifications 0 Copy of letter [7 Change Order 0 Dated THESE ARE TRANSMITTED AS CHECKED BELOW: 0 For approval 0 For checking 0 Resubmit copies for ap, 0 Foryouruse 0 Design only, not for constructic 0 As requested Approved as noted Return corrected prints 0 For review and comment 0 Returned for corrections 0 E For your action 0 Approved as submitted REMARKS Please process this agreement following City Council approval. Return the signed agreements to mt further processing following their execution. Thanks! COPY TO: SIGNED: /2!&&% Michael d Bock, Management As w- If enclosures are not as noted, kindly notify us at once. v -78TE BT - Date May 24, TO File - ABf14,543 Reply Wanted From Lorraine Wood, Office of the City Clerk UNO Reply Necessary __ _- The Conservation Credit Purchase Agreement and Acknowledgment between the Cit; (Purchaser) and Tech-Bilt, Inc. (Seller) dated May 24th 1999 is filed in "45" Tech-Built.