HomeMy WebLinkAbout1996-07-16; City Council; Resolution 96-258c
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RESOLUTION NO. 96-258
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA, AUTHORIZING THE PURCHASE OF
INTERCHANGE WIDEN I NG.
WHEREAS, the City Council of the City of Carlsbad, California has
previously found it necessary and in the public interest to construct
improvements to the Poinsettia Lanell-5 Interchange, and
2.1 ACRES FOR MITIGATION FOR THE POINSETTIA LANEII-5
WHEREAS, such construction resulted in an impact to an area of
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coastal sage scrub vegetation which requires mitigation; and
WHEREAS, the City of Carlsbad is required to mitigate this impact by
purchasing 2.1 acres of an off-site area of coastal sage scrub or other habitat
which provides a clear preservation benefit to the coastal California
gnatcatcher and is acceptable to the Fish and Wildlife Service (Service), and
WHEREAS, Service has approved the purchase of 2.1 acres from the
Carlsbad Highlands Conservation Bank;
NOW, THEREFORE, be it hereby resolved as follows:
1. That the above recitations are true and correct.
2. That the City Council of the City of Carlsbad, California authorizes
the purchase of 2.1 acres from the Carlsbad Highlands Conservation Bank.
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3. That the City Council of the City of Carlsbad authorizes the Mayor to
execute the agreement with Bank of America, attached hereto as Exhibit "A"
and made a part hereof, for said purchase.
PASSED, APPROVED AND ADOPTED at a regular meeting of the
Carlsbad City Council held on theiuday of JULY , 1996 by the following
vote, to wit:
AYES:
NOES: None
ABSENT: None
Council Members Lewis, Nygaard, Kulchin, Finnila, Hall
ATTEST:
(SEAL)
LlQQZtL 4.Q-
ALETHA L. RAUTENKRANZ, City Cldrk
0
d CONSERVATION CREDIT
PURCHASE AGREEMENT AND ACKNOWLEDGMENT
THIS CONSERVATION CREDIT PURCHASE AGREEMENT AND
ACKNOWLEDGMENT ("Agreement") is entered into this
between BA Properties Inc., a Delaware corporation ("Seller") and The City of Carlsbad,
California ('I Purchaser").
A.
Agreement (the "Implementation Aereement") dated April 5, 1995 by and among Seller, as
"Property Owner", The California Department of Fish and Game ("CDFG"), and The United
States Fish and Wildlife Service (IlUSFWS'I) (CDFG and USFWS are referred to collectively
$ereinafter the "Resource Ammcies"), the Resource Agencies have acknowledged the creation of
the Carisbad Highlands Conservation Bank (the "Conservation Bank") and the right of Seller to
sell Tonservation Credits" as provided further therein.
B.
located in San Diego County California commonly known as the interchange at Interstate 5 and
Poinsettia Lane (the "Purchaser's Property").
C.
2.1 Conservation Credits (the Tonveyed Credits") from the Conservation Bank on the terms
and conditions set forth herein.
day of , 1996 by and
Pursuant to that certain Carlsbad Highlands Conservation Bank Implementation
Purchaser desires to mitigate the loss of certain natural habitat values on real property
Purchaser has agreed to purchase from 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. Purchaser has deposited with the State of California via the California Wildlife
Conservation Board (the "Board"), or shall deposit with the Board on or before July 1, 1996 (the
"ClosinE Date"), imniediately available funds in the amount of $4,863.60 (the "Endowment
Deposit"), and Seller has received, or shall receive prior to the Closing Date, the California
Department of Fish and Game's written acknowledgnient of its receipt of the Endowment
Deposit in the form attached hereto as Exhibit A ("Endowment Deposit Receipt"). The
Endowment Deposit is a one-time payment. The City shall have no further obligation to pay
monies or otherwise parlicipate in the maintenance of Purchaser's Property.
2.
Date, imnicdiatcly available funds in thc amount of $35,03640.
3.
execute and deliver to I'urchascr the Acknowlcdgn1cnt of Sale of Conservation Credits attached
hereto as Exhihit 13.
Purchaser has deposited with Seller. or shall deposit with Seller 011 or before the Closing
Upon satisfaction of thc conditions sct forth in I'aragraphs 1 and 2 above, Seller shall
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.1 4.
Credit‘s shall be made on an ”AS IS, WHERE IS, WITH ALL FAULTS” basis as provided for ii
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, 01
representative acting or purporting to act on behalf of Seller as to: (I) the conservation value of
the property conveyed to the Resource Agencies in establishing the Conservation Bank, (ii) the
conservation value or mitigation requirements of the Purchaser’s Property, (iii) the acceptance o
the Conveyed Credits by the Resource Agencies or any other governmental agency as mitigatioi
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 Purchaser’s Property, or the
Conveyed Credits.
5. Purchaser acknowledges and agrees that the purchase and sale of the Conveyed Credit:
shall be made with the City having no further responsibilities for the Property as described iI
.the Implementation Agreement.
6.
Paragraphs 1 and 2 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 further obligations hereunder except as provided ii
Paragraph 7 below.
7.
agreement, or dealings regarding the Conveyed Credits with, nor any communication in
connection with the sub-ject 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 and its subconsultant the Sauls Company (collectively
“McCollum”). The Seller shall be solely responsible for any consulting fee owed to
McCollum and agrees to indemnifjr, defend and hold Buyer harmless with respect thereto. Ir
the event that any other consultant, broker or finder perfects a claim for a consultant fee or
commission or finder’s ke 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 from and against said
commission or fec and all costs and expenses (including without limitation reasonable
attorneys’ fces) incurred by the other party in defcnding against such claim. The provisions
of this Section 8 shali survive the termination of this Agreement.
8. I’urchascr and Seller agree that al I understandings and agreenients hcretoforc made
bctwccn them or their rcspcctivc agcnts or representatives are merged in this Agreement and
the I’xhibits attached hereto, and alone fully and completely express their agrccmcnt with
rcspcct to thc subject mattcr hcrcoI’ and supcrsedc all prior agrcemcnts and undcrstandings
bct\vecn thc parties rcl:iting to such subject matter. I’urc1i;iser and Seller further agrce that
Purchaser acknowledges and agrees that: (a) the purchase and sale of the Conveyed
Time is of the essence in this Agreement. In the event the conditions set forth in
Seller and Purchaser each represent to the other that it has not had any contract,
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I purchaser has no responsibilities or obligations whatsoever regarding the “Conservation
Credits“ except as are expressly stated in this Agreement.
9.
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 confirmation of successfully completed transmission), or upon the expiratio1
of two (2) business days after the date of deposit of such notice in the United States mail,
registered or certified mail, postage prepaid, return receipt required.
10. This Agreement shall be governed and construed in accordance with the laws of the
State o€ 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 paily 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.
1 1. This Agreement may be executed and delivered in any number of counterparts, each
of which so executed and delivered shall be deemed to be an original and all of which shall
constitute one and the same instrument.
All deposits, except the Endowment Deposit, and any notice required or permitted to
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WHEREUPON, this Agreement has been executed as of the date first-above written.
SELLER:
BA PROPERTIES LNC., a Delaware corporation
By:
Name:
Its:
\
By:
Name:
Its:
Corporate Real Estate - ORE0 #20005
450 B Street, Suite 620
San Diego, CA 92101
Attention: Mr. James Jackson
Fax No. (619) 515-5655
PURCHASER:
n
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Name: CLAUDE A. LEWIS
Its: Mayor
City of Carlsbad
2075 Las Palmas Drive
Carlsbad, CA 92009
July 17, 1996
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