HomeMy WebLinkAbout2011-07-26; City Council; Resolution 2011-1781
RESOLUTION NO. 2011-178
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A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
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CARLSBAD, CALIFORNIA, APPROVING THE AGREEMENT
FOR TRANSFER OF REAL PROPERTY CONSERVATION
CREDITS AND AUTHORIZING THE MAYOR TO EXECUTE THE
AGREEMENT BETWEEN THE CITY, U.S. FISH AND WILDLIFE
SERVICE, CALIFORNIA DEPARTMENT OF FISH AND GAME,
AND THE CONSERVATION FUND FOR THE PURCHASE OF
30.09 ACRES OF COUNTY GNATCATCHER CORE AREA
CONSERVATION CREDITS.
WHEREAS, City of Carlsbad is obligated to conserve 307.6 acres of high quality coastal
sage scrub within the Multiple Habitat Conservation Program (MHCP) Gnatcatcher Core Area as a
requirement pursuant to its Habitat Management Plan (HMP) which was approved by the City
Council on November 9, 2004; and,
WHEREAS, the City of Carlsbad has fulfilled 264.58 acres of this MHCP Gnatcatcher
Core Area conservation requirement; and,
14 WHEREAS, the City of Carlsbad, the U.S. Fish and Wildlife Service, California
Department of Fish and Game, and The Conservation Fund have prepared an agreement to allow
the purchase of 30.09 acres of conservation credits by contributing $868,302 towards the long
term management and monitoring of property within the MHCP Gnatcatcher Core Area currently
1R owned by The Conservation Fund (Purchase Agreement), attached as Exhibit 2; and,
1Q WHEREAS, the purchase price of this conservation credit is $868,302; and,
20 WHEREAS, the purchase of these conservation credits will be funded by revenue from
21 the HMP Mitigation Fee Fund; and,
22 WHEREAS, the current available balance in the HMP Mitigation Fee Fund ($92,781) is
23 insufficient to cover the purchase price; and,
24 WHEREAS, the additional amount needed (not to exceed $775,521) shall be advanced
25 from the General Fund as an interest-bearing loan to the HMP Mitigation Fee Fund over the next
26 *four years; and,
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WHEREAS, the General Fund has sufficient funds to loan for the purchase of
conservation credits, and the loan will be repaid as funds become available in the HMP Mitigation
Fee Fund.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as
follows:
1. That the above recitations are true and correct.
o 2. That the Mayor is authorized to execute the attached Purchase Agreement, and
9 any and all other documents associated with the purchase of conservation
credits as necessary, as approved by the City Attorney.
3. That the Finance Director is authorized to appropriate funds for the purchase of
12 conservation credits from the HMP Mitigation Fee Fund and General Fund per
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the details in the Purchase Agreement.
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4. That the Finance Director is authorized to reimburse the amount loaned to the
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HMP Mitigation Fee Fund back to the General Fund as funds become available
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in the HMP Mitigation Fee Fund.
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PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council
of the City of Carlsbad on the 26th day of July, 2011, by the following vote to wit:
AYES: Council Members Hall, Blackburn, Douglas and Packard.
NOES: None.
ABSENT: Council Member Kulchin.
MATT/HALL, Mayor
ATTEST:
(SEAL)
M. WOOD, City Clerk
AGREEMENT REGARDING CONSERVATION CREDITS
RE: CITY OF CARLSBAD HABITAT MANAGEMENT PLAN
OFFSITE CORE AREA
This Agreement Regarding Conservation Credits Re: City of Carlsbad Habitat
Management Plan Offsite Core Area ("Agreement") is entered into on July p? (j> ,
2011, by and between the City of Carlsbad ("City") a municipal corporation, The
Conservation Fund, Inc., a Maryland non-profit corporation ("Conservation Fund"), the
United States Fish and Wildlife Service ("USFWS"), and the California Department of
Fish and Game ("CDFG"), collectively referred to as "Parties" herein.
RECITALS
A. Under the Federal Endangered Species Act section 10 permit for the City
of Carlsbad, the USFWS is responsible for approving the location and adequacy of
mitigation for impacts to federally listed species and candidate species. Under the
California Endangered Species Act, CDFG is responsible for approving the location and
adequacy of mitigation for impacts to State listed species, candidate species, and Species
of Special Concern. CDFG and USFWS are collectively referred to as the "Wildlife
Agencies".
B. In cooperation with the Wildlife Agencies, on November 9, 2004, the City
adopted the Habitat Management Plan for Natural Communities in the City of Carlsbad
("HMP"), a comprehensive city-wide program to identify how the City can preserve the
diversity of habitat and protect sensitive biological resources within the City while
allowing for additional development under a city-wide permit and authorization for the
incidental take of species in conjunction with private development projects, public
projects and other activities which are consistent with the HMP. The City's HMP is a
subarea of the Regional Multiple Habitat Conservation Plan ("MHCP") adopted in March
2003 by San Diego Association of Governments.
C. Pursuant to the HMP, the City's total core area conservation requirement
is 307.6 acres, 264.58 of which has been satisfied as acknowledged by the Wildlife
Agencies in the letter attached as Exhibit A. The City's remaining conservation
requirement is 43.02 acres.
D. The Conservation Fund owns approximately 155.77 acres of property in
the County core area commonly known as the Perkins Property ("Perkins Property") as
depicted in the map attached as Exhibit B. The Wildlife Agencies have approved the
City's funding of an endowment for long-term management of a portion of the Perkins
Property ("Conserved Habitat Lands" as generally depicted in Exhibit B) in exchange for
30.09 acres of core area conservation credits. The Conserved Habitat Lands comprise
approximately 100 acres. Upon completion of the total payment, the City's remaining
core area conservation requirement under the HMP would be 12.93 acres.
E. At the time of execution of this Agreement, it is anticipated by the Parties
that the Conservation Fund will soon transfer fee title to the Perkins Property to the
Center for Natural Lands Management, a California nonprofit public benefit corporation
("CNLM"), a conservation entity that will own and manage the Perkins Property to
perpetually conserve and preserve its ecological and biological values.
F. Towards partial fulfillment of the City's remaining core area conservation
requirement, the City desires to fund an endowment for the preservation in perpetuity of a
portion of the Perkins Property in the amount of $868,302.00 in exchange for Wildlife
Agencies' agreement that payment of such endowment made over a four-year period will
constitute fulfillment of 30.09 acres of City's HMP core area conservation requirement,
as more particularly described in this Agreement.
G. Execution of this Agreement by USFWS and CDFG acknowledges the
Wildlife Agencies' agreement to credit the City with a total of 30.09 acres of
conservation toward its HMP requirement upon payment by City in accordance with this
Agreement. These credits are only available to the City of Carlsbad, and the City's rights
to these credits are not tied to any portion of the Perkins Property. Following each
payment by the City, the Wildlife Agencies will confirm conservation credit to the City
pursuant to the schedule and requirements below and such credits will be deducted from
the City's outstanding core area conservation requirement under the HMP.
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the Parties agree as follows:
1. Endowment Funding. The City wishes to fund the endowment for the
preservation in perpetuity of the Conserved Habitat Lands in exchange for conservation
credit under the HMP. The City shall pay a total of $868,302.00 (eight hundred sixty
eight thousand three hundred two dollars) to the Conservation Fund (or to CNLM, if
CNLM has acquired fee title to the Perkins Property from the Conservation Fund) in four
installments as follows:
(a) $217,075.50 to be paid within ninety (90) calendar days of
execution of this Agreement for 7.53 acres of conservation credit;
(b) $217,075.50 to be paid on the anniversary of the first
payment in the year 2012 for 7.52 acres of conservation credit;
(c) $217,075.50 to be paid on the anniversary of the first
payment in the year 2013 for 7.52 acres of conservation credit; and
(d) $217,075.50 to be paid on the anniversary of the first
payment in the year 2014 for 7.52 acres of conservation credit.
i) The annual payment amounts and total payment amount for the credits are not subject
to change if for any reason it is subsequently determined by any party that the
endowment amount as set forth above is insufficient for any reason.
ii) The 30.09 acres of conservation credit is contingent only upon the City's timely
payments of the above installments and will not be contingent on the condition of the
Perkins Property or its management.
2. Credit Confirmation. Within 24 hours of receipt of the above payments,
the Conservation Fund or CNLM, as applicable, will provide City and the Wildlife
Agencies with written confirmation of payment at the following addresses:
Karen Goebel
Assistant Field Supervisor
United States Fish and Wildlife Service
Carlsbad Fish and Wildlife Office
6010 Hidden Valley Road, Suite 101
Carlsbad, CA 92011
Edmund J. Pert
Regional Manager, South Coast Region
California Department of Fish and Game
3883 Ruffin Road
San Diego, CA 92123
The Conservation Fund
c/o Lily G. Engle, Associate Counsel
1655 North Ft. Myer Drive, Suite 1300
Arlington, Virginia 22209
With a copy to:
Scott Ferguson, Southern California Program Director
The Conservation Fund
1100 South Coast Highway, # 302
Laguna Beach, CA 92651
David Monroe, General Counsel
Center for Natural Lands Management
3074 Heavenly Ridge Street
Thousand Oaks, CA 91362
Jane Mobaldi
Assistant City Attorney
City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008
David Hauser
Property and Environmental Management Director
City of Carlsbad
1635 Faraday Avenue
Carlsbad, CA 92008
Within 30 calendar days of receipt of notice that the City has made each payment,
USFWS and CDFG will provide written confirmation to City and the current property
owner of the Perkins Property that the City has been credited with the proportionate
amount of conservation credit towards fulfillment of its HMP requirement.
3. Management of Perkins Property and Endowment. The Conservation
Fund shall manage the Perkins Property in accordance with a management plan approved
by the Wildlife Agencies. The Conservation Fund shall hold, invest and manage the
endowment funds received from the City pursuant to this Agreement ("Endowment")
pursuant to an Endowment Stewardship Agreement with the Wildlife Agencies.
4. Further Assurances. Whenever requested to do so by another party, each
party shall execute, acknowledge, and deliver any further instruments or documents that
are reasonably necessary to document the transactions contemplated by this Agreement.
5. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original, and all of which, when taken together, shall
constitute one and the same document.
6. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, without regard to principles of
conflicts of laws.
7. Successors.
(a) The Conservation Fund shall assign its obligations under this
Agreement to CNLM, and cause CNLM to assume such obligations, concurrently with
CNLM's acquisition of all or any portion of the Perkins Property. Concurrently with
such assignment the Conservation Fund shall transfer the Endowment (including all
interest and return earned on such funds) to CNLM.
(b) The Conservation Fund (or CNLM, if applicable) agrees to give
written notice of this Agreement to any prospective transferee of all or any portion of the
Perkins Property at least 30 days prior to the proposed transfer and (unless the City and
the Wildlife Agencies otherwise agree in writing) to cause such transferee to assume this
Agreement concurrently with its acquisition of such property. In addition, the
Conservation Fund (or CNLM, if applicable) agrees to give written notice of any
proposed transfer of the Perkins Property or any portion of it to the Parties at least 30
days prior to the proposed transfer. Any such notice shall describe the proposed handling
of the Endowment upon the transfer.
8. Amendment. This Agreement can only be amended in a writing signed by
all of the Parties.
9. Notices. Any notice, request or other communication under this
Agreement shall be in writing and addressed as set forth in Section 2. A party shall give
notice of change of address by written notice to the other Parties in accordance with this
section.
10. Exhibits. The following Exhibits are attached to this Agreement and
incorporated by reference in it as though set forth in full:
Lands
A - Acknowledgment of Mitigation Credit Letter 5/9/11
B - Map of Perkins Property and General Depiction of Conserved Habitat
11. Interpretation. This Agreement shall be construed as if all Parties
prepared it.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed
by their duly authorized representatives as of the date set forth above.
DATED: July 26th, 2011 CITY OF CARLSBAD
By:_
Name:_
Title: "
ffatt Hall
Mayor
7-DATED: / ' ° <* l' UNITED STATES FISH AND
WILDLIFE SERVICE
By:_
Name:Title: n^s:
II
DATED: X7- / f - \ \ CALIFORNIA DEPARTMENT OF
FISH AND GAME
By:
Name: ^f
Title: Re
DATED:THE CONSERVATION FUND, INC., a
Manyhjtad ndn-fcofit corporation
Name:
Title: fl$ j tfWT g""
Exhibit A
Acknowledgment of Mitigation Credit Letter 5/9/11
U. S. Fish and Wildlife Service
Carlsbad Fish and Wildlife Office
6010 Hidden Valley Road, Suite 101
Carlsbad, California 92011
(760)431-9440
FAX (760) 431-9618
California Department of Fish and Game
South Coast Region
4949 Viewridge Avenue
San Diego, California 92123
(858)467-4201
FAX (858) 467-4299
In Reply Refer To:
FWS/CDFG-SDG-04B0002-11TA0343
MAY 0 9 20J1
Ms. Jane Mobaldi
Assistant City Attorney
City of Carlsbad
1635 Faraday Avenue
Carlsbad, California 92008
Subject: Acknowledgement of Mitigation Credit for 50.13 Acres at the Alemir Property,
City of Carlsbad, San Diego County, California
Dear Ms. Mobaldi:
The U.S. Fish and Wildlife Service (Service) and the California Department of Fish and Game
(Department) (collectively, the Wildlife Agencies) received your request (electronic mail dated
March 28,2011) for our concurrence that the City of Carlsbad's (City) acquisition, preservation,
and funding of the long-term management of 50.13 acres on the Alemir property would fulfill the
Multiple Habitat Conservation Plan Core Area up-front conservation requirement stated in
Section D.5 of the City's Habitat Management Plan (HMP) and Section 11.5 of the
Implementing Agreement for the HMP. The Center for Natural Lands Management (CNLM) is
the owner and manager of the property and will record a Conservation Easement over the
property in favor of the Department. We concur that the City's acquisition, preservation, and
funding of the long-term management of 50.13 acres on the Alemir property would fulfill the
City's cited HMP up-front acquisition requirement. The City is still obligated to acquire
approximately 43 acres in the gnatcatcher core area to fulfill the total core area conservation
requirement. Attached to this letter is a table that summarizes our understanding of the City's
proposed approach to fulfilling this requirement. If you have any questions or comments
pertaining to this letter, please contact Janet Stuckrath (Service) at (760) 431-9440, ext. 270 or
Libby Lucas (Department) at (858) 467-4230.
Sincerely,
Karen A. Goe
Assistant Field Supervisor
U.S. Fish and Wildlife Service
Stephen M.Juarez
Environmental Program Manager
California Department of Fish and Game
cc:
Mike Grim, City of Carlsbad
TAKE PRIDE
Wildlife Agencies' Understanding of the City's Proposed Approach
to Meeting the Carlsbad HMP Gnatcatcher Core Area Obligation
Core Area Components
TOTAL CORE AREA CONSERVATION REQUIREMENT
1. Acquisition by the City1
Alemir Property - land in excess of mitigation requirements
Subtotal Up-front Acquisition
2. Project-Related Mitigation2
Parcel 1 - Villages of La Costa - Alemir
Villages of La Costa
Bressi Ranch
Subtotal Parcel 1
Parcel 2 - Villages of La Costa - Choumas Pappas
City of Carlsbad Municipal Golf Course
Villages of La Costa- HCP Cost Share
Palomar Forum
Villages of La Costa - Other
Subtotal Parcel 2
Parcel 3 - Rancho Carrillo Mitigation - Nelson
Rancho Carrillo
Subtotal Parcel 3
Subtotal Project-Related Mitigation
3. Onsite Conservation Restoration Credits
Villages of La Costa (Canyons Network Settlement)
Additional Carlsbad Golf Course Restoration
Additional Citywide Miscellaneous Adjustments
Subtotal Onsite Credits
Total Acres Conserved
Remaining Acquisition Requirement
Aci
Components
50.13
39.39
24.50
63.89
51.60
5.50
4.90
4.06
66.06
20.31
20.31
23.79
15.40
25.00
•es
Total
307.6
50.13
150.26
64.19
264.58
43.02
1 The City would also provide the funding for the endowment to be established for the long-term management of the
Alemir property.
2 The parcel name refers to the parcel within the Core Area that provided the land that was conserved. Project names
underneath each parcel refer to projects within the City of Carlsbad that satisfied off-site habitat mitigation
requirements by purchasing land (via a conservation easement) from Parcel 1-3 developers, providing a non-wasting
management/monitoring endowment, and procuring a Preserve Manager.
1 b
Exhibit B
Map of Perkins Property Parcel # 223-081-51
and General Depiction of Conserved Habitat Lands
1
Conserved Habitat Lands
Carlsbad Fish and Wildlife Office
6010 Hidden Valley Rd. Ste. 101
Carlsbad. CA 92011