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HomeMy WebLinkAbout1998-04-14; City Council; 14641; LCP Agricultural Fee Program Agreement4 . CITY OF CARLSBAD - AGENbA BILL ’ ’ id@ \i/ . . p 2 d Y 3 0 DEPT. HD. AGREEMENT WITH THE CALIFORNIA COASTAL FOR THE ADMINISTRATION OF THE ClI-YAT’-w- I DEPT. PLN ta( I LCP AGRICULTURAL FEE PROGRAM CITY MGR RECOMMENDED ACTION: That the City Council DENY Resolution No. qg-06 finding the terms of the agreement unacceptable and direct staff to take the necessary steps for the City to administer the program. ITEM EXPLANATION: On June 3, 1997, the City Council approved a resolution requesting that the Conservancy separate the agricultural fee account held by the Conservancy into a “statutory” account and a LCP account. The Council also directed staff to enter into negotiations with the Conservancy for it to administer the LCP program. The Council established guidelines for the negotiations which were contained in the June 3ti agenda bill and which are discussed below. On December 5, 1997, the Conservancy Board approved the separation of the accounts and directed its staff to negotiate the agreement for the Conservancy to administer the program. The Board also established a “sunset” date of March 31, 1998 for the negotiations. If an agreement could not be reached by that date, the Conservancy staff was directed to return the balance of the LCP account to the City. The staffs have been negotiating the terms of the agreement for the last several months and all of the issues have been resolved except for two substantive issues. First, the Conservancy staff wants the agreement to include reimbursement of the $935,000 from the LCP account to the “statutory” account for the Flower Fields grant that the City now holds. The grant was established by a state budget bill that appropriated the funds from the “statutory” account. Council did express concern over this because Carlsbad Ranch and the flower fields are located within the Mello 2 LCP area and therefore, pay into the LCP account. If the Council desires the reimbursement of the “statutory” account, then this is no longer an outstanding issue. If the Council would either reconsider the reimbursement of the “statutory” account or would like to postpone the decision pending a discussion of the pros and cons of the Conservancy’s approach, then the Council should either deny the agreement or approve the agreement conditioned on the deletion of the reimbursement terms. Second, Council indicated its desire to have final approval over grant requests for moneys held in the LCP account. The Conservancy’s final position would not accomplish this desire. Instead, the Conservancy is proposing a process whereby the Conservancy Board would have the final approval but, would act on only those applications receiving approval by the City. Under the proposed process, it is conceivable that the Conservancy could deny or significantly modify a worthy project that is a high priority for the City or the Council. The Conservancy believes that the wording of the LCP requires it to expend the grant funds and the only way the Conservancy can expend money is with its Board’s approval. City staff interprets the section of the City’s LCP to allow the Conservancy’s expenditure of funds based on the City’s approval of the grants and not the conservancy’s. It is important to note that there would be no appeal process should the City object to the Conservancy’s denial of a project. Staff is recommending that the Council not approve the agreement with the Conservancy if the Council still wishes to have final approval of LCP grant applications. There are several alternatives l \ PAGE 2 OF AGENDi-iiLL NO. /y 6 %! available should the Council determine that Conservancy administration of the program is still desirable. For example: 1. Council could approve the attached agreement and take its chances that the Conservancy will follow the City’s lead and approve the grant requests supported by the City. 2. Council could deny the agreement and direct staff to continue to negotiate with the Conservancy regarding its administration of the program. 3. The Council could modify the agreement to extricate the City from the entire process. In other words, the City would not be involved in the selection or the approval of grant applications. FISCAL IMPACT: Should the Council not approve the agreement, there would be costs associated with the administration of the program. The City could either administer the program with a contract administrator or with City staff. Staff would recommend the use of a contract administrator similar to the Resource Conservation District that administers the City’s Agricultural Improvements Program. The cost of the administrative service could be reimbursed from the interest earned by the LCP account. Even with the use of a contract administrator there would be some City costs associated with public workshops, review of applications and agenda bill preparation. These costs could also be reimbursed from the interest earned by the LCP account. Should the Council wish to approve the agreement with the Conservancy, the administrative costs of both agencies would be reimbursed from the interest earned from the LCP account. The Conservancy would receive 8% of each grant and the City would receive up to 4% to cover the administrative costs. It is anticipated the proportional reimbursement would substantially cover the administrative costs borne by each agency. EXHIBITS: 1. City Council Resolution No. ~8-llL? . d 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2; 28 RESOLUTION NO. 98-116 A RESOLUTION OF THE CITY COUNCIL OF THE CARLSBAD, CALIFORNIA, APPROVING AN AGR WITH THE CALIFORNIA COASTAL CON REGARDING THE ADMINISTRATION OF Conservancy (Conservan (Program); and, that the California Coastal tural Mitigation Fee Program the City’s desires. reement (Exhibit “A”) between the City ministration of the Program accomplishes E, BE IT RESOLVED, by the City Council of the tations are true and correct. f the agreement (Exhibit “A”) are acceptable. D ADOPTED at a regular meeting of the City Council of the e day of 1998, by the following vote, to NOES: ABSENT: UDE A. LEWIS, Mayor ALETHA L. RAUTENKRANZ, City Clerk EXHIBIT “A” Carlsbd4.agr SCC DRAFT (GA) March 9,1998 2 pm Administration of Agriculture-Conversion Mitigation Fees Generated Through the Carlsbad Local Coastal Program (City of Carlsbad, San Diego County) The State Coastal Conservancy (“the Consenmq”) and the City of Carlsbad (“the Cityn) agree as follows with respect to the administration of agriculture- conversion mitigation fees generated through application of the local coastal pian: facQ Pert- A. The Conservancy is a state agency charged under Division 21 of the California Public Resources Code with protecting, conserving, and enhancing the coast of California. B. Each of two programs applicable to differing areas within the City of Carlsbad, County of San Diego requires the payment of mitigation fees for the conversion of coastal agricultural land to other uses. C. Public Resources Code 0 30171.5 (a section of the Coastal Act, Division 20 of the Public Resources Code) requires deposit in the State Coastal Conservancy Fund of mitigation fees for development on approximately 240 acres of nonprime agricultural lands in the coastal zone in the City of Carlsbad that lie in geographic areas specified in Public Resources Code $8 30170(f) and 30171(b), as shown on Exhibit A, which is incorporated by reference and attached. wse better, revised version of staff rec. Exhibit 21. D.. Since 1985, the Conservancy has deposited agricultural-conversion fees derived under Public Resources Code 8 30171.5 in an account (“the statutory account”) in the State Coastal Conservancy Fund, has administered the funds, and has made several grants from them, consistent with the statutorily specified order of priority detailed in Exhibit B, which is incorporated by reference and attached wse better, revised version of staff rec. Exhibit 41. E. Segments of the Local Coastal Program (“KY’) for the City of Carlsbad, adopted under the Coastal Act, provide for collection and use of mitigation fees (“the LCP mitigation fees”) derived in connection with development on approximately 760 acres of nonprime agricultural lands in geographic areas, shown on Exhibit A, other than those specified in Public Resources Code Q 30171.5. The LCP provides for the LCP mitigation fees to be deposited with t&e Conservancy and expended in an order of priority detailed in Exhibit C, which is incorporated by reference and attached. wse better, revised version of staff rec. Exhibit 5 Check mst actual LCPl. F. In light of the Conservancy’s statutory responsibilities under Public Resources Code 8 301715 and the Consexvancy’s experience in managing the corresponding agricultural mitigation fees, the City requested by its resolution no. 97-467 of June 3, 1997 that the Conservancy exercise its discretion to administer the LCP mitigation fees. G. Public Resources Code 9 31104 authorizes the Conservancy to accept funds from public and private sources, and Chapter 4 of Division 21 of the Public Resources Code, commencing with 8 31150, charges the Conservancy with a program of preservation of coastal agriculture. H. At its regular public meeting on December 5, 1997, the Conservancy agreed to manage the LCP mitigation fees, and authorized the creation of an account appropriate to receive them. I. Carlsba$ agriculture-conversion fees sent to the Conservancy were not identified as pertaining to the LCP area or the statutory area, and so were all deposited in the statutory account. The fees received have now been identified by corresponding geographic area, and the parties intend that they be placed in separate accounts pursuant to applicable law and this agreement. K. In Chapter 162, Statutes of 1996, item 3760-102-0565, the Legislature appropriated to the Conservancy $935,000 for floriculture resiarch for preservation at Carlsbad Ranch (located in the LCP area), payable ‘from the intermingled “statutory account,” notwithstanding the priorities specified in Public Resources Code 0 30171.5. 2 5 L On June 26, 1997, consistent with Chapter 162, Statutes of 1996, item 3760-102-0565, the Conservancy authorked a grant of $935,000 to the City for floriculture research for preservation at Carlsbad Ranch, awarded through Conservancy Grant Agreement No. 96481 dated June 30, 1997. In approximately late July, 1997, the funds were tendered to the City from the statutory account for placement in an interest-bearing special revenue fund for this purpose. M. The parties intend in this agreement to provide for public participation in determinin g use of the LCP account funds, to establish a process for selecting and approving projects and using the funds, and to attribute the $935,000 floriculture expenditure to the LCP account. In light of the pertinent facts, above, which are incorporated below, and for mutual consideration provided, the parties agree as follows: IMPOSITION. COLLECHON. AND DEPOSIT OF LCP MITIGATION FEES The City shall assure the timely imposition, collection, and payment of all applicable LCP mitigation fees owing or derived under the LCP, as it may be amended from time to time, and shall promptly direct all LCP mitigation fees to the Conservancy for deposit in an interest-bearing account (“the ICP account”) in a Special Deposit Fund account established for the receipt and disbursement of the LCP mitigation fees in accordance with this agreement. The Conservancy shall deposit the LCP mitigation fees (including those received prior to the effective date of this agreement) in the ICP account, to be disbursed in accordance with this agreement. Interest earned on funds in the LCP account shall be applied to the account and disbursed in accordance with this agreement and applicable law. In directing agriculture-conversion mitigation funds to the Conservancy, the City shall assure that each instrument clearly indicates on its face into which account, statutory or LCP, each fee should be deposited by the Conservancy. 3 The City shall annually provide to the Conservancy a written report detailing the tracts covered by the LCP mitigation fees, the amount (in acres) of agricultural conversion already accomplished; and, to the extent feasible, the amount (in acres) of future conversion anticipated, the amount of revenue anticipated, and any other information that would aid in planning goals and projects to be undertaken with the LCP mitigation fees. DETERMINATION OF PRIORITIES AND REVIJW OF POTENTIAL PROJECTS The Conservancy and the City shall, in a mutually’ acceptable manner that elicits public participation, determine program goals and criteria consistent with the LCP, and review potential projects that would help achieve the goals. Following the public participation, within six months of executing this agreement, and at least every two years thereafter, the Conservancy and City shall, by resolution, approve a list of potential programs or priorities to be accomplished with the LCP account funds, consistent with the LCP and applicable law. The use of LCP account funds for particular projects shah not be approved until each party has approved this joint priorities list. Staff of the City and the Conservancy shall consult in the selection of projects for implementation. Projects selected for implementation shall derive from the latest project list approved by the City and the Conservancy. Following consultation, Conservancy staff shall ask the Conservancy to authorize specific projects and expenditures, as appropriate. Upon its authorization, the Conservancy may disburse funds from the LCP account in furtherance of program goals and projects, after the preparation of any necessary agreements or other instruments and fuhillment of any required preconditions. . . Using the L.CP account funds, the Conservancy will award grants as appropriate to entities including the City to implement the approved projects and programs. In the case of a grant to the City, if the project necessitates 4 7 -. contracts or subcontracts, the City shah contract under its own procedures. All LCP mitigation fees shall be used consistent with the LCP and applicable law. DISBURSE&iENTS FOR EXPENSES AND ADMINISTRATIVE COSTS The Conservancy shah be entitled to operating expenses plus an administrative fee equivalent to eight percent of each disbursement. The Conservancy shall periodically withdraw from the LCP account for the Conservancy’s own use amounts accrued for the Conservancy’s operating expenses and administrative fees. The City shall be entitled to operating expenses plus an administrative fee equivalent to four percent of each disbursement. The Conservancy shall periodically disburse these amounts to the City from the LCP account, upon the City’s submission of an invoice satisfactory to the Conservancy in form and content. The Conservancy shall provide written accountings to the City annually (and periodically on request). The accountings shall specify all receipts to and disbursements from the LCP account since the prior accounting. ATTRIBUTION OF GRANT FOR CARLSBAD RANCH FLORICULTURE Notwithstanding any other provision of this agreement or of Conservancy Grant Agreement No. 96-081, the June 26,1997 Conservancy grant of $935,000 to the City for floriculture research for preservation at Carlsbad . Ranch awarded through Conservancy Grant Agreement No. 96-081 shall be attributed to and charged against the LCP account, without further selection or evaluation processes. Where the California Environmental Quality Act (CEQA) requires a lead agency,” the City, rather than the Conservancy, shah serve as the lead agency, to the extent allowable by law. This agreement shall take effect when signed by both parties and received in the offices of the Conservancy. Either party may terminate this agreement for any reason by providing thirty days written notice to the other party. Upon termination, the City shall take whatever measures are necessary to prevent further costs. The balance of funds in the account, less any reasonable and non-cancelable obligations incurred by the Conservancy in the performance of this agreement, shah be paid to the City. The City shall be responsible for any reasonable and non-cancelable obligations incurred by the Conservancy in the performance of this agreement and not payable from the LCP account. The City shall be responsible for, indemnify and save harmless the Conservancy, its officers, agents and employees from any and all liabilities, claims, demands, damage or costs resulting from, growing out of, or in any way connected w#h or incident to this agreement, except for the active negligence of the Conservancy, its officers, agents or employees. The duty of the City to indemnify and save harmless includes the duty to defend as set forth in Civil Code Section 2778. This agreement supersedes the City’s right as a public entity to indemnity (see Gov. Code Section 895.2) and contribution (see Gov. Code Section 895.6) as set forth in Gov. Code Section 895.4. The City waives any and all rights to any type of express or implied indemnity or right of contribution from the Conservancy, its officers, agents or employees, for any liability resulting from, growing out of, or in any way connected with or incident to this agreement. 6 Except as expressly provided in this agreement, no change in this agreement shah be valid unless made in writing and signed by the parties to the agreement. No oral understanding or agreement not incorporated in this agreement shah be binding on any of the parties. This agreement is deemed to be entered into in the County of Alameda. AUTHOIU2L4TION The Conservancy authorized entry into this agreement on December 5, 1997. Each signatory to this agreement represents that he or she has authority to bind his or her respective party to this agreement. STATE COASTAL CONSERVANCY William Ahem Executive Officer CITYOF CARLSBAD . Signature Print or type name Date Date Title 7 Geographic areas subject to the %tatutoy account” (approximately 240 acres of nonprime agricultural lands, as specified in Public Resources Code 09 30170(f) and 30171(b)); and geographic a&as subject to the “LCP account” (approximately 760 acres). [use better, revised version of staff rec. Exhibit 2.1 II C Exhibit B Order of priority for projects under the “statutory account” [Use better, revised version of staff rec. Exhiiit 41 C. Exhibit Order of priority for projects under the %CP account” [Vse better, revised version of staff rec. Exhibit 5 Check against actual Lcp1* ADMINISTRATION OF THE LCP AGRICULTURAL MITIGATION FEE PROGRAM COUNCIL GUIDELINES 1. City to have sole authority to approve/deny grants 2. Conservancy to have an advisory role 3. The LCP account must earn interest 4. Administrative Fee paid out of the LCP account ADMINISTRATION OF THE AG-FEE PROGRAM OPTIONS 1. Approve the agreement with the Conservancy 2. Authorize the City Manager to enter into a subsequent agreement with the Conservancy that: a. Meets Council’s original guidelines b. Contains no reimbursement clause 3. Authorize staff to request proposals from qualified non- profit organizations for the administration of the program 4. Direct staff to establish both a special revenue account and procedures for the City to administer the program AG-MITIGATION FEE/ACCOUNT BALANCES APRIL 1998 STATUTORY ACCOUNT LCP ACCOUNT $ 141,410 $3,772,300 . L c . AG-MITIGATION FEE/ACCOUNT EXPENDITURES APRIL 1998 1 STATUTORY ACCOUNT 1 LCP ACCOUNT Beach Access $ 174,305 $ 176,500 Flower Fields - 935,000 $1,109,305 $ 176,500