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HomeMy WebLinkAbout09/15/2009, C4 - ACCEPTANCE OF GRANT AGREEMENT WITH THE NATURE CONSERVANCY OF CALIFORNIA IN SUPPORT OF THE FROOM RAN council /15 j acenaa nepont �N C I T Y OF SAN LUIS OBISPO FROM: Shelly Stanwyck,Assistant City Manager Prepared By: Neil Havlik,Natural Resources Manager J SUBJECT: ACCEPTANCE OF GRANT AGREEMENT WITH THE NATURE CONSERVANCY OF CALIFORNIA IN SUPPORT OF THE FROOM RANCH ACQUISITION PROJECT RECOMMENDATION 1. Adopt a resolution accepting a$100,000 grant and approving an Agreement with the Nature Conservancy of California regarding use of those funds. 2. Authorize the City Manager to execute the Agreement with the Nature Conservancy and any other necessary documents to comply with terms of the Agreement. DISCUSSION Background In June 2008 the City Council entered into a two-year option agreement with Phyllis Madonna to allow for the purchase of a 310 acre portion of Ms. Madonna's Froom Ranch property in the Irish Hills, in the amount of $700,000 (Attachment 1 — Vicinity Map). Since that time City staff has been pursuing a variety of sources seeking to assemble the necessary funding package for the project. One such possible funding source was the Nature Conservancy of California. Some years ago the Nature Conservancy received a grant from the Packard Foundation for the purpose of stimulating matching monies for a variety of conservation projects in San Luis Obispo County. There are still some of these funds remaining, and staff has been in discussions with Nature Conservancy staff regarding a "challenge grant" that would match monies raised locally for the Froom Ranch acquisition on a dollar-for-dollar basis, up to $100,000. Nature Conservancy staff have forwarded a grant agreement(Attachment 3) to this effect. Proposed Grant Terms There are three major conditions of the Nature Conservancy grant. One is that the matching funds come from non-Nature Conservancy sources. The second is for an updated appraisal of the property. The third is that the City would agree to some form of perpetual restriction to ensure that the property remains as open space forever. These are all acceptable conditions which do not constrain the City's latitude in carrying out the project. This is because (1) $100,000 is needed to raise the total funding necessary to complete the project; (2) an updated appraisal is needed to satisfy a condition of the awarded $200,000 grant from the Federal Land and Water Conservation Fund; and (3) the Federal grant also already requires assurances that the land acquired be dedicated G/HavWCouncilagenda/TNC Froom app Cif- I y Council Agenda Report-Authorization of Application for Grant Funds Page 2 to permanent open space by some method acceptable to the Federal government. City Manager as Signatory In preparing the grant, the Nature Conservancy staff described it as their practice to have the same person, such as the City Manager, sign all documents associated with the grant and any assurances, side agreements, or other matters pertaining to the grant. In keeping with the Nature Conservancy's practice, therefore, staff is recommending that the City Manager be authorized and directed to assign all documents pertaining to the grant, including the grant agreement itself. FISCAL IMPACT The Nature Conservancy grant will provide outside funding to support City acquisition of the Froom Ranch property,thus providing a beneficial fiscal effect. At the current time staff anticipates the following funding package for the project: 1. City General Fund allocation for 2009-2011, plus the option payment,$300,000; 2. Federal Land and Water Conservation Fund, $200,000; 3. Nature Conservancy(this grant agreement), $100,000; 4. Local fundraising, $100,000. Staff is now very confident of our ability to complete fundraising in a timely and effective manner, so as to complete the transaction by June 30, 2010, as required in the option agreement with Ms. Madonna. ALTERNATIVE The Council could reject the agreement. This is not recommended as the agreement provides needed funding for the project in a positive manner. ATTACHMENTS 1. Froom Ranch Vicinity Map 2. Grant Resolution 3. Draft Grant Agreement CSI- a J z� �a s i IL o co b O^ }Q K Y t •` Oji �� �d z `wd a Id \ CA ¢ J n OTC U n� ATTACHMENT 2- RESOLUTION RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN LUIS OBISPO APPROVING A GRANT AGREEMENT WITH THE NATURE CONSERVANCY OF CALIFORNIA IN SUPPORT OF ACQUISITION OF THE FROOM RANCH PROPERTY WHEREAS, the Nature Conservancy of California("TNC") is the recipient of certain funds from the David and Lucile Packard Foundation, whose purpose is to stimulate conservation transactions with willing landowners in several identified areas in San Luis Obispo County, California, and WHEREAS,the Irish Hills near the City of San Luis Obispo is one such area; and WHEREAS,the City of San Luis Obispo's proposed Froom Ranch Property Acquisition Project meets TNC requirements and is thus eligible to receive grant support from TNC. NOW,THEREFORE,BE IT RESOLVED, that the City Council of the City of San Luis Obispo hereby: 1. Approves the Grant Agreement with TNC as presented to the Council this day; and 2. Appoints the City Manager as agent of the City of San Luis Obispo to conduct all negotiations and execute all documents which may be necessary to satisfy conditions of the grant. Upon motion of seconded by and on the following vote: AYES: NOES: ABSENT: The foregoing resolution was adopted this day of 200_. Mayor David F. Romero ATTEST: APPROVED AS TO FORM: Elaina Cano na Lowell City Clerk City Attorney ATTACHMENT 3 PRIVATE GRANT AGREEMENT Accounting Information TNC Center No:2051239003-0001 TNC Account No: 5076 [DATE] City of San Luis Obispo Attn: Dr. Neil Havlik 990 Palm Street San Luis Obispo, CA 93401 Re: Grant No.TNC-CITY-SLO-2010 Dear Dr. Havlik, We are very pleased to inform you that The Nature Conservancy(the"Conservancy") has agreed to make this Grant to The City of San Luis Obispo ("Awardee") in the amount not to exceed$100,000 pursuant to the terms and conditions described in this letter(the"Grant").. This Grant is under general agreement grant no. 2003-0074 dated February 22, 2002 (the"Prime Award") between The Conservancy and The David and Lucile Packard Foundation (the"Packard Foundation")for pre-approved California Central Coast land protection opportunities. I. OBJECTIVE The purpose of this Grant is-to contribute partial funding toward the Awardee's purchase on or before December 1,2010 from the Madonna Family, of fee title to approximately 310 acres of real property that is in the Irish Hills Conservation Area in San Luis Obispo County, California and is more particularly described in the legal description attached to this letter as Attachment 1 and depicted on the map attached to this letter as Attachment 2 (the"Property"). The Awardee's acquisition of the Property is referred to in this letter as the"Program". In accordance with the terms of the Prime Award,the use of these Grant funds must be pre-approved in writing by Resources Law Group on behalf of the Packard Foundation, and this Grant agreement and disbursement to the Awardee of the Grant funds are expressly contingent upon the Conservancy's receipt of such approval. This Grant agreement and disbursement to the Awardee of the Grant funds are also expressly contingent on the Conservancy's completion of and satisfaction with, in the Conservancy s sole discretion, due diligence investigations (including, without limitation, conflict of interest analysis, if any, relevant to the Grant) regarding the Awardee and the Property. Prior to closing, Awardee agrees, if requested by the Conservancy,to file an appropriate legal mechanism (approved by the Conservancy, and enforceable by the Conservancy, a third party non-profit conservation organization, or government entity)to ensure that Froom Ranch is devoted to long term conservation uses that are consistent with CCOF requirements and the Conservancy's goals in making this grant. U. TERM The term of this Grant will commence upon execution by both parties and will expire onDecember`1 7 2010. III. REPORTING Cq-5 Private Grant Agreement 12/08 ATTACHMENT 3 The Awardee will submit the following materials and reports to the Conservancy: By December 2009,the Awardee will submit:_ • An original of the Conservation Agreement,which is attached to this letter as Attachment signed by.a properly authorized official of the Awardee (the"Conservation Agreement% • A disbursement request letter(in the form attached to this letter as Attachment )signed by a property authorized official of the Awardee, and a copy of the Awardee's escrow instructions for acquisition of the Property signed by a properly authorized official of the Awardee. • Due diligence materials including conflict of interest disclosure, a copy of the option agreement or purchase and sale agreement by which the Awardee intends to purchase the Property(including all amendments to that agreement), a title report for the Property along with copies of all documents that appear as exceptions to title, and documentation of title exceptions that the Awardee has objected to. Within 60 days following the Awardee's acquisition of the Property,the Awardee will submit: • Final financial and programmatic reports to include final closing documents, a copy of the deed to the Property, a copy of the recorded Memorandum of Conservation Agreement, a copy of the Awardee's title insurance policy for the Awardee's interest in the Property, finalized funding sources and amounts of each, and a written report describing the use of Conservancy funds and accomplishments of the Grant. IV. PAYMENTS An initial and final disbursement of no more than $100,000 will be made prior to or on December 1 st,2010 directly to the designated escrow account, subject to submission and acceptance by the Conservancy of the materials and reports in accordance with the schedule above and subject to all other terms and conditions of this Grant agreement. Such reports shall be submitted to: __,Kellie Medrano, Grant Specialist The Nature Conservancy 201 Mission Street, 6t° Flood San Francisco, CA 94105 V. EXPENDITURE LIMITED TO DESIGNATED PURPOSES Grant funds may be spent only in accordance with the provisions of the Awardee's funding request and budget submitted to the Conservancy. Expenditure of Grant funds is subject to modification only with the Conservancy's prior written approval. Any Grant funds not expended or committed for the purposes of this Grant must be returned to the Conservancy. The Conservancy and CCOF may monitor and evaluate the Program's activities,which may include visits by Conservancy and CCOF's personnel and agents, discussions with Awardee's personnel, and review of financial and other records and materials related to the Program activities financed by this Grant in an effort to determine whether Awardee's activities meet the Conservancy's and CCOF's funding objectives. VI. PROVIDING FUNDS TO OTHERS The Awardee is prohibited from using the Conservancy's funds and/or assets for grants to others without the Conservancy's written permission. C�-(o Private Grant Agreement 12/08 ATTACHMENT ,3 VII. DISCLOSURE OF INTERNAL CONFLICTS OF INTEREST The Awardee must disclose to the Conservancy any proposed use of funds and/or assets for activities in which there is an apparent or actual conflict of interest between the Awardee and its employees, board members, or close relatives of the Awardee's employees or board members and make such expenditure subject to prior Conservancy approval. VIII. NOTIFICATION OF CHANGE IN STATUS The Awardee must notify the Conservancy immediately of any change in the Awardee's corporate status or operations as a tax-exempt entity, or of any material judicial, legislative or administrative proceeding instituted against the Awardee. IX. PROCUREMENT The Awardee will follow its own policies with regard to documentation of procurements and maintain that documentation in their organization's grant files. If the Awardee does not have written procurement policies, it must retain documentation for procurements (over US$5,000 outside the U.S. or over$10,000 in the U.S.). Such documentation will include sole source justification, if appropriate, or documentation of a competitive process or comparison shopping. X. RECORDS AND AUDITS The Awardee agrees to maintain books, records, documents and other evidence pertaining to all costs and expenses incurred and revenues acquired under this Award to the extent and in such detail as will properly reflect all costs and expenses for which reimbursement is claimed. These records shall be maintained for a period of three years after the final expenditure report is submitted. The Conservancy and its auditors (internal and external)will have access to all records relating to the award for three years after the final financial and programmatic reports for the award have been submitted to TNC, unless local law requires a longer retention period. The Awardee shall be responsible for reimbursing for any disallowance of any expenditures related to the work the Awardee has performed.. XI. SEGREGATION OF COSTS The Awardee will segregate the costs of the project described herein from other projects that it currently administers. XII. JUSTIFICATION OF SALARY EXPENSES The Awardee must track employees'_actuaftime spent on the entire TNC--p-iv in_a time and effort reporting system' XIII. TITLE TO AND USE-OF PROPERTY Title to any property purchased with Award funds vests in the Awardee. The Conservancy may not be charged for use of any property purchased with Grant funds. XIV. INTELLECTUAL PROPERTY LICENSE. Title to any Materials developed with Grant funds vests in the Awardee, with the Conservancy and CCOF getting free irrevocable license to use, publish or distribute all such copyrighted, trademarked, patented Materials, or inventions, trade secrets or other intellectual property rights. The word"Materials"may include, but is not limited to reports, studies, photographs (and negatives), computer programs, drawings, Private Grant Agreement 12/08 / ATTACHMENT " writings or other similar works or documents, along with all supporting data and material, produced under this Agreement. The Awardee agrees to provide the Conservancy and CCOF with copies of the Materials at no cost. XV. ACKNOWLEDGMENTS The Awardee agrees to acknowledge the Conservancy's and CCOF's support of the project, including funding contributions and sponsorship, on all media announcements, programs and publications. XVI. ASSIGNMENT This Award may not be assigned by the Awardee in whole or in part without the prior written consent of the Conservancy. XVII. NO AGENCY No legal partnership or agency is established by this Award. Neither party is authorized or empowered to act as an agent, employee or representative of the other, nor transact business or incur obligations in the name of the other party or for the account of the other party. Neither party shall be bound by any acts, . representations, or conduct of the other. XVIII. TERMINATION AND REMEDIES The Conservancy shall have the right to terminate this Award by giving 30 (thirty) days written notice to the Awardee of intent to terminate. Should this occur, payment for work satisfactorily completed will be adjusted accordingly. In addition, if in the judgment of the Conservancy the Awardee defaults in performance of Awardee duties under this Award, whether for circumstances within or beyond the control of the Awardee,the Conservancy may immediately terminate this Award by written notice to the Awardee. Upon receipt of the termination notice from the Conservancy, the Awardee shall take all necessary action to cancel outstanding commitments relating to the work under this Award. In the event of termination prior to the originally agreed upon expiration, the Conservancy shall pay of any obligations incurred by the Awardee that could not reasonably be canceled. If at any time the Prime Award is terminated, this Award shall also be automatically terminated as of the termination date of the Prime Award. XIX. LOBBYING AND POLITICAL CAMPAIGNING Awardee shall not use any portion of funds transferred under this Award to engage in any lobbying activities unless the parties specifically agree to such lobbying activities in this agreement. Awardee shall not use any portion of funds transferred under this Award to participate or intervene in any political campaign on behalf of or in opposition to any candidate for public office, to cause any private inurement or improper private benefit to occur, or to take any other action inconsistent with Section 501(c)(3) of the US Internal Revenue Code. XX. LIABILITY Awardee shall be solely responsible for the payment of any and all claims for loss, personal injury, death, property damage, or otherwise, arising out of any act or omission of its employees or agents in connection with the performance of this Program. Awardee agrees to indemnify and hold the Conservancy harmless from any and all claims, loss, damages, costs and expenses, including attorney fees through the appellate levels, made against or incurred by the Conservancy arising out of work performed by the Awardee under this Award, or arising out of any act or omission of the Awardee. XXI. USE OF CONSERVANCY NAME/LOGO Private Grant Agreement 12/08 ATTACHMENTS The Awardee may not use the Conservancy's name and/or logo in any way without prior written consent from the Conservancy, except to the extent the work performed contemplates their inclusion in the final work product. XXIL CONFIDENTIAL INFORMATION. During the course of the performance of this Award, the Awardee may have access to materials, data, strategies, other information relating to the Conservancy and its programs, or systems, which are intended for internal use only. Any such information acquired by the Awardee shall not be used, published, or divulged by the Awardee to any person, firm, or corporation or in any advertising or promotion regarding the Awardee or the Awardee's services, or in any manner or connection whatsoever without first having obtained the written permission of the Conservancy, which permission the Conservancy may withhold in its sole discretion. XXIII. TAXES The Awardee agrees to be responsible for any and all filing and payment of taxes and for compliance with any and all provisions and requirements arising under any applicable tax laws. Neither federal, nor state, nor local income tax, nor payroll tax of any kind shall be withheld or paid by the Conservancy on behalf of the Awardee, or employees of the Awardee. If appropriate, the Conservancy shall report all fees paid to the Awardee to the IRS on Form 1099. XXIV. COMPLIANCE WITH LAWS The Awardee represents, warrants, and agrees that, in connection with the transactions contemplated by this Award: (a)the Awardee can lawfully work in the United States; (b) the Awardee shall obtain, at its own expense (except to the extent otherwise explicitly stated in this Award) any permits or licenses required for the Awardee's services under this Award; and (c) the Awardee shall comply with all statutes, laws, ordinances, rules, regulations, court orders, and other governmental requirements of the United States,the State of California, and any other jurisdiction(s) in which the Awardee is organized or authorized to do business, including but not limited to any applicable anti-bribery statutes, which are applicable to the work to be done by the Awardee under this Award (in each case, an"Applicable Law"). The Awardee shall not take any actions that might cause the Conservancy to be in violation of any of such Applicable Laws. XXV. CERTIFICATION REGARDING MATERIAL SUPPORT AND RESOURCES TO TERRORISTS A. The Awardee hereby certifies: 1. The Awardee does not commit, attempt to commit, advocate, facilitate, or participates in terrorist acts, nor has it committed, attempted to commit,facilitated, or participated in terrorist acts. 2. The Awardee will take all reasonable steps to ensure that Awardee does not and will not knowingly provide, material support or resources to any individual or entity that commits, attempts to commit, advocates, facilitates, or participates in terrorist acts, or has committed, attempted to commit, facilitated, or participated in terrorist acts. 3. Before providing any material support or resources to an individual or entity,the Awardee will consider all information about that individual or entity of which it is aware or that is available to the public.. Private Grant Agreement 12/08 ` J ATTACHMENT 4. The Awardee will implement reasonable monitoring and oversight procedures to safeguard against assistance being diverted to support terrorist activity. B. For purposes of this Certification: 1. "Material support and resources" means currency or monetary instruments or financial securities,financial services, lodging,training, expert advice or assistance, safehouses, false documentation or identification, communications equipment,facilities,weapons, lethal substances, explosives, personnel,transportation, and other physical assets, except medicine or religious materials. 2. "Terrorist act" means: (i) an act prohibited pursuant to one of the 12 United Nations Conventions and Protocols related to terrorism (see UN terrorism conventions Internet site: http://untreaty.un.org/English/Terrorism.asp); or (ii) an act of premeditated, politically motivated violence perpetrated against noncombatant targets bysubnational groups or clandestine agents; or (iii) any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act. 3. "Entity'means a partnership, association, corporation, or other organization, group or subgroup. C. In the event that any material misrepresentation in this Certification is discovered during the term of this Grant, the Conservancy may elect to declare this Grant null and void and immediately terminate it. In the case of an intentional material misrepresentation,the Conservancy may, at its option, recover damages resulting from the termination. Notice of termination shall be given to Awardee's address listed on page 1. XXVI. CERTIFICATION FOR CONFLICT OF INTEREST DETERMINATION The Awardee certifies that the information it has provided on the Attachment entitled "Disclosure Form" is true and correct to the best of the Awardee's knowledge. In the event that any material misrepresentation in the Disclosure Form is discovered during the term of this Award,the Conservancy may elect to declare this Award null and void and immediately terminate it. In the case of an intentional material misrepresentation, the Conservancy may, at its option, recover damages resulting from the termination and shall be entitled to offset any amounts payable to the Awardee for work satisfactorily completed against such damages. The balance of amounts payable to the Awardee for work satisfactorily completed, if any, shall be paid to the Awardee. Notice of termination shall be given to Awardee's address listed on page 1. [Attach the completed Disclosure Form] Private Grant Agreement 12/08 ATTACHMENT 3 XXVIL DUE DILIGENCE The Conservancy may request copies of documents to ensure that Awardee meets the criteria of a non- profit conservation organization and that the Awardee meets appropriate standards of capacity, competence, and financial accountability. These documents include but are not limited to the following: a certificate of good standing, a list of the names of all of its board members and principal officers, copies of Awardee's bylaws and articles of incorporation. Awardee agrees to notify TNC immediately of any change in Awardee's corporate or tax status or operations, or if any official judicial, legislative, or administrative proceeding is instituted against Awardee that may affect the commitments and obligations agreed herein. XXVIII. CHOICE OF LAWIFORUM This Award shall be interpreted, construed and governed by the laws of California and such laws of the United States as may be applicable. In the event of any litigation over the interpretation or-application of any of the terms or provisions of this Award,the Conservancy and the Awardee agree that litigation shall be conducted in the State of California XXIX. BINDING EFFECT/AMENDMENTS This Award shall become binding when signed by the parties. This Award supersedes all prior or contemporaneous communications and negotiations, both oral and written and constitutes the entire Award between the parties relating to the work set out above. No amendment shall be effective except in writing signed by both parties. XXX. SEVERABILITY If any provision of this Award is held invalid,the other provisions shall not be affected thereby. FOR City of San Luis Obispo FOR THE NATURE CONSERVANCY Kenneth C. Hampian Brian Stranko City Manager North and Central Coast Regional Director Date: Brian Burke Date APPROVED AS TO FORM: Approved by Brian Burke on THAN P. LOWELL Date City Attorney by e.g.fax/phone/email Attachments: Private Grant Agreement 12/08 / ��