HomeMy WebLinkAbout1998-09-01; City Council; 14829; FORMAT AND PROCEDURES FOR DEFFERED MITIGATION AGREEMENTS AND APPROVAL OF AGREEMENT WITH LINCOLN PROPERTIES..
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MTG. 9/1/98 MITIGATION AGREEMENTS AND APPROVAL OF CITY ATTY. 4
DEPT. PLN CITY MGR 2
tP %TY OF CARLSBAD - AGE uA BILL
FORMAT AND PROCEDURES FOR DEFERRED
AGREEMENT WITH LINCOLN PROPERTIES
SP 109(8)/CT 98-7 RECOMMENDED ACTION;
That the City Council (I) APPROVE the procedures for Deferred Mitigation Agreements
AUTHORIZE the Mayor to sign the Deferred Mitigation Agreement with Lincoln Properties.
ITEM EXPLANATION:
On August 4, 1998, the City Council approved Resolution No. 98-274 which directed
proceed with development of a Cash Deposit program for mitigation. The purpose of this prc
to allow a developer additional time (up to one year) to acquire biological mitigation in Carlsb
desirable to have developers provide their mitigation in Carlsbad because doing so add!
amount of open space in the City.
Subsequent to the August 4 meeting, staff has discussed the matter internally and with de
who may be involved in the process. As a result, the concepts have undergone some re
and have changed in certain ways from what was originally presented. The intent of the
remains the same. The following is an explanation of the recommended changes :
1. Deposits in forms other than cash. The original concept was to require a cash de
security for the deferred mitigation. The reason for proposing a cash deposit was to
acquisition of mitigation land or credits by the City in the event of a developer’s f
perform. However, there are other ways of accomplishing this objective that do not i
cash deposit For example, a developer could purchase credits in a mitigation bank anc
these as “security”, thereby ensuring that legally adequate mitigation would be providec
the event of a later failure to perform. Therefore, staff is recommending that forms of
other than cash be accepted and that the name of the program be changed to I
Mitigation Agreement.
2. Partial Mitigation In Carlsbad. The August 4 agenda bill presented an “all or nothing”
regarding mitigation in or out of Carlsbad. It is now recommended that consideration be
allowing a portion of a project’s mitigation to be outside of Carlsbad. While it woulc
preferable to have all of a project’s mitigation in Carlsbad, there will be situations whe
not possible. In those instances, the Deferred Mitigation Agreement could be used to
The August 4 agenda bill indicated that staff would recommend procedures for impleme
new approach. Exhibit 1 contains the proposed procedures. These procedures have beel
simple and flexible as possible to allow staff to negotiate case-by-case arrangements that n
the City’s and applicants’ needs. Ultimately, all mitigation must be consistent with the 4
Environmental Quality Act, and staff is responsible for ensuring that mitigation agreeme
both the letter and intent of the law.
City staff and the applicant have provided the wildlife agencies with copies of the agreemer
procedures. The agencies previously submitted a joint comment letter regarding thc
expressing conceptual support for deferred mitigation as long as it can be assured that the
amount of mitigation land and/or credits will ultimately be provided.
developer additional time to secure at least a portion of the mitigation in Carlsbad.
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1. PAGE 2 OF AGENDA LL NO. 149829
As stated in the August 4 agenda bill, the Lincoln PropertiesNiaSat project is the first to reqi
of a Deferred Mitigation Agreement. The terms of the agreement have been negotiated I:
staff and the applicant, and the draft agreement is attached as Exhibit 2. The projt
recommended for approval by the Planning Commission at its August 19 meeting, and it is e
to be heard by the City Council in early September. Lincoln Properties wishes to begin gral
site as soon as possible to facilitate the schedule for relocation of ViaSat.
FISCAL IMPACT:
The recommended action will result in minor costs to the City to administer the agreem
monitor the applicant's progress.
ENVIRONMENTAL:
The recommended action will implement the mitigation specified in the negative declaratioi
by the Planning Director on June 25, 1998, for the Lincoln North Pointe project (CT 98-07).
EXHIBITS:
1.
2.
Format and Procedures for Deferred Mitigation Agreements
Mitigation Agreement between Lincoln Corporation and City of Carlsbad.
EXHIBIT 1 e 0 ,. *1
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Format and Procedures for Deferred Mitigation Agreements
Step I Determination of Eligibility. This program is intended to allow developers
additional time to obtain mitigation in Carlsbad when it has been determined
by the City that the project should be allowed to proceed prior to having a
mitigation site identified. It is expected that in the majority of cases mitigation
will be identified and secured prior to allowing the impacts to occur. However,
in some cases it may be in the City’s best interest to allow mitigation to be
deferred. It is the applicant‘s responsibility to request deferred mitigation and
to present all information supporting the request. If possible, the deferred
mitigation should be discussed in the environmental document for the project.
Confirmation of Mitigation Requirement. The precise type and amount of
required mitigation must be clearly understood. This should be reflected in the
environmental document for the project.
Form of Security. The applicant must propose the form of security that will
be offered. The security must be adequate to assure that full mitigation will be
provided in the event of the applicant’s failure to perform.
Mitigation Agreement. The applicant must execute a mitigation agreement in
a form acceptable to the City Attorney, and the agreement must be approved
prior to project implementation. Ideally, the agreement would be approved
prior to or concurrent with project approval by the Community Development
agreement to be approved after project approval as long as the potential for
deferred mitigation is reflected in the environmental document for the project.
The term of the mitigation agreement will typically be one year or prior to
project occupancy.
Monitoring. The mitigation agreement must provide for periodic reports from
the applicant regarding efforts to locate suitable mitigation. The agreement
should specify consequences in the event of an applicant’s lack of progress or
failure to perform.
Final Mitigation Package. As the time period approaches the end of one
year, the City and the applicant will meet to determine what the final mitigation
package will consist of. If the applicant has been successful in acquiring
suitable mitigation land in Carlsbad, the exact acreage of that land must be
specified. If land acquired in Carlsbad does not satisfy the full mitigation
requirement, the applicant must specify the land or mitigation credits outside
of Carlsbad which will be utilized. If the applicant has been unsuccessful in
acquiring any land in Carlsbad, then the entire amount of the mitigation must
be in the form of land or mitigation credits outside of Carlsbad.
In the event that the developer does not identify sufficient mitigation land
and/or credits either inside or outside of Carlsbad to mitigate the impacts, and
the impacts have already occurred, then the City shall take whatever actions
are legally necessary and appropriate to utilize the security to obtain
satisfactory mitigation in the most cost-effective manner.
Step 2
Step 3
Step 4
Director. However, in some cases it will be acceptable for the mitigation
Step 5
Step6
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- City of Carlsbad
September 24, 1998
Lincold Property Company, NC
Attn: Rich Simmons
50 Executive Park, Suite I00
Irvine, CA 92623-9693
RE: MITIGATION AGREEMENT
Enclosed for your records is a copy of Council Agenda Bill 14,829 which went before
the Carlsbad City Council on September 1, 1998.
Also enclosed is a fully executed original “Mitigation Agreement” dated September 22,
1998, between W9ILNP Real Estate Limited Partnership (“Lincoln”) and the City of
Carlsbad.
If you have questions regarding this agreement please contact Don Rideout in the
Planning Department. Mr. Rideout can be reached at (760) 438-1 161 ext. 421 2.
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KATHLEEN D. SHOUP
Sr. Office Specialist
1200 Carlsbad Village Drive Carlsbad, CA 92008-1989 (760) 434-28C
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I.
MITIGATION AGREEMENT
THIS AGREEMENT (the "Agreement") is made as of this &Ieday of
$,&&&Ad , 1998, by an between W9LW Real Estate Limited Partnership, a Delaware
limced partnership ("Lincoln"), and the CITY OF CARLSBAD, a municipal corporation of the
State of California ("City"), with reference to the following facts:
A. Lincoln has applied for certain permits and approvals ("Approvals") known as SP
109 (B)\CT 98-07WUD 98-01WIP 98-07WP 98-05\CUP 98-08\SUP 98-03, for the
construction of the development project (the "Project") commonly known as Lincoln North
Pointe. In connection with the processing of such Approvals, the City provided a notice of intent
to adopt a mitigated Negative Declaration (the "MND"), and also mailed and published such
notice, in accordance with Section 15072 of the State CEQA Guidelines. Public review of the
proposed MND was also provided in accordance with Section 15073 of the State CEQA
Guidelines. The proposed MND identified the impacts of the Project on Southern Maritime
Chaparral, Coyote Brush Scrub and Mule Fat Scrub (the "Species") habitat and species as a
Potentially Significant Unless Mitigation Incorporated.
B. The City has determined that the Project's impacts on the Species would be
mitigated to a less than significant impact by the obtainment of mitigation sites of other
mitigation methods, e.g., in-lieu fees or their equivalent such as the obtainment of mitigation
credits, subject to the approval of the City, the U.S. Fish and Wildlife Service and the California
Department of Fish and Game (collectively, the "Agencies").
C. This Agreement is entered into pursuant to Carlsbad City Council Resolution #98-
274, dated 8-4-98 which established a deferred mitigation program.
D. By Resolution #98-274, the City determined that its first preference is for the
Project to provide its fill mitigation amount (3 1.46 acres) of southern maritime chaparral (which
provides habitat for Del Mar manzanita, Del Mar sandaster and Nuttall's scruboak) in Carlsbad
concurrent with impacts. The City acknowledges, however, that Lincoln wishes to begin grading
as soon as possible, and it may not be feasible for Lincoln to acquire appropriate mitigation land
in Carlsbad concurrent with the impacts without additional time. If the entire amount of
mitigation cannot be obtained in Carlsbad, then the City's next preference is to see at least
twenty-three (23) acres of the total mitigation obligation obtained in Carlsbad.
E. The City has developed and approved "procedures for deferred mitigation" whch
allows for additional time to provide mitigation within the City upon obtaining appropriate
security and this Agreement is consistent with those procedures.
F. The City and Lincoln now wish to provide for such mitigation as set forth below.
Performance by Lincoln of the matters set forth below will reduce the impacts of the Project on
the Species to a less than sigruficant impact.
NOW, THEREFORE, the City and Lincoln agree as follows:
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1. Lincoln shall purchase or reserve southern maritime chaparral credits equal to
twenty-three (23) acres of land and coastal sage scrub credits equal to eight (8) acres of land fi-om
the Manchester Avenue Land Conservation bank. The credits, or a portion of them, may be
applied toward mitigating the impacts of habitat and species loss as a result of the Project as
hrther described below. These two types of credits are recognized as having the following
monetary values:
a) southern maritime chaparral credits are valued at $45,000 per credit.
b)
Lincoln shall continue to diligently pursue purchase of 3 1 acres of mitigation
Coastal sage scrub credits are valued at $20,000 per credit.
2.
lands located in the City. Such mitigation lands must contain southern maritime chaparral
(minimum of 75%), with remainder made up of coastal sage scrub or other vegetation
communities acceptable to the City and the Agencies. In any case, the amount of southern
maritime chaparral land and or equivalent credits to be applied toward mitigation of the loss of
the Species as a result of the Project shall not be less than an amount equal to 23 acres.
3. Lincoln shall document its efforts to obtain mitigation land located in the City by
providing monthly written reports to the City, which shall include documentation of its offers or
solicitations for such property, information concerning its retention of knowledgeable persons to
assist in the obtainment of such property, and such other matters that evidence Lincoln's efforts
to obtain such property. Lincoln shall be deemed to have acted diligently to obtain such propeq
if it has in good faith, and in a commercially reasonable manner, sought to obtain such property
by normal and customary means employed in the real estate industry.
unknown costs, whereas purchase of credits in a mitigation bank allows costs to be reasonably
accurately predicted. Lincoln desires to place a cap on its ultimate mitigation costs and to make
that cap reasonably close to the cost of purchasing credits as described in Paragraph 1 above.
Therefore, Lincoln shall not be required to expend more than $30,000 per acre for properties
located in the City. In no event shall Lincoln be obligated to expend more than $1,035,000 for
the obtainment of southern maritime chaparral land or credits and $240,000 for other land or
credits (for a total of $1,275,000.00 ), and the transfer thereof to the City.
4. Lincoln and the City acknowledge that purchase of land in Carlsbad entails
5. Lincoln shall provide the final mitigation package to the City the earlier of (i)he
one (1) year anniversary of the date of this Agreement or (ii) the issuance by the City of
certificate(s) of occupancy for the Project. The City may extend this agreement with concurrenc
from the agencies for up to one year in the event that a new mitigation bank is established in or
adjacent to Carlsbad. The final mitigation package shall be substantially in the farm Qf either Qf
the following:
a) In the event Lincoln obtains at least twenty-three (23) acres of southern
maritime chaparral mitigation land located in the City that is reasonably acceptable to the City
and the Agencies, Lincoln shall dedicate to the City (or the City's designee) such land. Such
land shall be substituted for the equivalent amount of credits purchased (if any). If mitigation
land purchased in the City contains any other native or naturalized vegetation community, it
may be substituted for an equivalent amount of coastal sage scrub credits purchased or reservec
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upon concurrence by the Agencies. Subject to Paragraph 4, Lincoln shall ensure that the total mitigation package is the equivalent of 3 1 acres by purchasing, if not already purchased, an
equivalent amount of remaining credits, as set forth in Paragraph 1. Such dedication of
mitigation land and purchase of equivalent credits shall constitute full and complete mitigation
for the Project.
b) In the event Lincoln is unable to acquire at least twenty-three (23) acres of
acceptable mitigation land located in the City, Lincoln shall, if not already purchased, purchase
the credits set forth in Paragraph 1. Such purchase shall constitute full and complete mitigation
for the Project. In that event, Lincoln shall pay to the City an amount equal to $150,000 to
compensate the City for the loss of opportunity to acquire open space within Carlsbad. This
compensation to the City is not a part of the mitigation, and the City may utilize such amount in
any manner it chooses.
6. Miscellaneous.
6.1 Notices. Any notice required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been given when delivered by (i) U.S.
mail, registered or certified, return receipt requested, postage prepaid or (ii) overnight delivery
service showing receipt of delivery, (iii) personal delivery, or (iv) by facsimile. Notices shall be
sent to:
If to Lincoln: Lincoln Property Company N.C., Inc.
50 Executive Park, Suite 100
Imine, California 92623-9693
Attention: Mr. Rich Simons
Business: (714) 261-9871
Fax (714) 261-1 178
with a copy to: N/A
if to City: Michael Holzmiller, Planning Director
2075 Las Palmas Drive
Carlsbad, CA 92009
with copies to: Ron Ball, City Attorney
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Notices as aforesaid shall be effective upon the earlier of actual receipt, or
Successors and Assigns. Tbis Agreement shall be binding upon, and inure
within three days after deposit in the U.S. mail.
to the benefit of, the parties hereto and their respective successors, heirs, administrators and
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assigns. Lincoln may assign its rights and delegate its obligations under this Agreement to an
affiliated entity, without City's consent thereto.
Amendments. Except as otherwise provided herein, this Agreement may
be amended or modified only by a written instrument executed by City and Lincoln.
Enforceabilitv. If for any reason, any provision of this Agreement shall be
held to be unenforceable, it shall not affect the validity or enforceability of any other provision oj
this Agreement and to the extent any provision of this Agreement is not determined to be
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unenforceable, such provision, or portion thereof, shall be, and remain, in full force and effect,
6.5 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first set forth above.
W9LNP Real Estate Limited Partnership,
a Delaware limited partnership
Its: Mayor
APPROVED AS TO FORM:
AT'TEST: City Clerk
By: Its. Jj-gh,-$y CiHy ? ___ .
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UNANIMOUS CONSENT IN LIEU
OF FIRST MEETING OF THE
BOARD OF DIRECTORS OF
WS/LNP GEN-PAR, INC.
The undersigned, being the sole director of W9/LNP
Gen-Par, Inc., a Delaware corporation (the "Corporationt') ,
does hereby consent to the adoption of and hereby adopts the
following resolutions and directs that this consent be filed
with the minutes of the proceedings of the Board of Directors:
RESOLVED, that until otherwise determined by resolu-
tion of the Board of Directors, the number of members of
the Board of Directors shall be one.
FURTHER RESOLVED, that until othemise determined by
stockholders shall be held for the election of directors
at 1O:OO o'clock A.M. on the last Friday of November in
each year (or, if such day is a legal holiday, then on
the next succeeding business day not a legal holiday) at the principal office of the Corporation at 101 Lincoln
Centre Drive, Foster City, California 94404 or at such
other place as may be designated by resolution of the
Board of Directors from time to time.
FURTHER RESOLVED, that the following persons are
hereby elected to hold the offices of the Corporation set
forth opposite their respective names until their respec-
tive successors are elected and qualified or until their earlier resignation or removal:
resolution of the Board of Directors, annual meetings of
Daniel M. Neidich President
Michael K. Klingher Vice President
Kevin D. Naughton Vice President, Secretary
Ralph F. Rosenberg Vice President and
Stuart M. Rothenberg Vice President
David M. Weil Vice President
Edward M. Siskind Vice President and
Elizabeth A. O'Srien Vice President and
and Treasurer
Assistant Secretary
Assistant Treasurer
Assistant Secretary
Alan S. Kava Vice President
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Todd A. Williams Vice President,
Assistant Treasurer ad
Assistant Secretary
Paul R. Vogel Vice President
Paul J. Meyer Vice President Erik M. Hansen Vice President
Barry DiRaimundo Vice President
Gary J. Rossi Vice President
Edgar M. Thrift, Jr. Vice President
FURTHER RESOLVED, that until otherwise determined by
the Board of Directors, the fiscal year of the Corpora-
tion shall be the period of twelve calendar months ending
on the last Friday in November in each year.
FURTHER RESOLVED, that the form of seal bearing the
words and figures "W9/LNP Gen-Par, Inc. , corporate seal,
1997 Delaware" is hereby approved and adopted as and for the corporate seal of che Corporation.
FURTHER RESOLVED, that the form of certificate for the Corporation's Common Stock, par value $1.00 per
share, attached to this consent as Annex A, is hereby adopted as the certificate to represent fully paid and
non-assessable shares of the Common Stock of the Corporation.
FURTHER RESOLVED, that for the purpose of authori-
zing the Corporation to do business under the laws of any state, territory or possession of the United States or of any other foreign country in which it is necessary ox
convenient for the Corporation to transact business, the proper officers of the Corporation are hereby authorized
Ln the name and on behalf of the Corparatibn to take such
action as may be necessary or advisable to e€fect the
qualification of the Corporation to do business as a foreign corporation in any of such states, territories, possessions or foreign countries and in connection
therewith to appoint and substitute all necessary agents
or attorneys for aervice of process, to designate or change the location of all necessary statutory offices,
and to execute, acknowledge, verify, deliver, file or cause to be published any necessary applications, papers,
certificatea, reports, consents to service of process,
powers of attorney and other instruments as may be
required by any of such laws, and, whenever it is expe-
dient for the Corporation to cease doing business and
withdraw from any such state, territory, possession or
foreign country, to revoke any appointment of agent or
attorney for service of process and to file such appli- cations, papers, certificates, reports, revocation of
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appointment or surrender of authority as may be necessary
to terminate the authority of the Corporation to do business in any such stare, territory, possession or
foreign country.
FURTHER RESOLVED, that an office of the CorporatioF-
be established and maintained at 101 Lincoln Centre
Drive, Foster City, California 94404.
FURTHER RESOLVED, that the Corporation is hereby
authorized to issue and sell 1000 shares of the Common Stock, par value $1.00 per share, of the Corporation to Lincoln-Whitehall Realty (West) IV, L.L.C. or its nominee
at a purchase price to be determined by any officer the
Corporation.
FURTHER RESOLVED, that any officer of the
Corporation is hereby authorized to execute and deliver
to Lincoln-Whitehall Realty (West) IV, L.L.C. or its nominee shares representing 1000 fully paid and
nonassessable shares of Common Stock of the Corporation
against receipt of the purchase price therefor.
FURTHER RESOLVED, that the sum received in payment for the foregoing shares is hereby declared part of the capital of the Corporation.
FYRTHER RESOLVED, that the Secretary of the
all corporate books, books of account and stock books
which may be required by the laws of Delaware or of any
State in which the Corporation may do business or which may be necessary or appropriate in connection with the
business of the Corporation.
FURTHER RESOLVED, that the Treasurer of the'corpora-
tion is hereby authorized to pay all charges and expenses
incidental to or arising out of the organization of the
Corporation and to reimburse any person who has made any
disbursement therefor.
Corporation is hereby authorized and directed to procure
FURTHER RESOLVED, that any officer of the Corporation is hereby authorized to execute and deliver
(and file where necessary) an agreement of limited
partnership, a certificate of limited partnership, each in a form that such officer, with the advice of counsel,
deems appropriate, and any and all amendments thereto or restacements thereof and any and all additional documents
necessary or appropriate to organize the Partnership as a Delaware limited partnership.
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FURTIi-ER RESOLVED, that the Corporation, in its capacity as fhe general partner of the Partnership, is
hereby authorized to take all. action nece~sary to permic
the Pzrtnerghip to acwire or invesc in loans and real. estate assets, or debt securities and other instruments,
and is hereby authorized to enter into any agreements,
instruments or documents deemed necessary or desirable in connection therewith.
FURTHER RESOLVED, that each and every officer of the
Corporation, (each, an "Authorized Signatory") be, and each of them hereby is, authorized to delegate to any
person, as said Authorized Signatory may aesignate by a
written delegation of authority or power of attorney, the authority to sign, to execute and deliver on behalf of
the Corporation and the Partnership, any and all such documents, papers,certificates,agreements and instruments
and to do or cause to be done any and all such other acts
and things as they or any of them, with the advice of
counsel, may deem necessary or desirable in order to
effectuate or carry our the purpose and intent of these
resolutions.
FURTHER RBSOLVED, that any and all such action heretofore taken in respect of the matters described in
these resolutions be, and hereby is, ratified and confirmed by each of the Corporation and the Partnership
as its act and deed.
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IN WITNESS WHEREOF, I have hereunto executed chis
unanimous consenE this 10th day of December, 1997.
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