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HomeMy WebLinkAboutB A Properties Inc; 1996-08-15;I , 0 a CONSERVATION CREDIT PURCHASE AGREEMENT AND ACKNOWLEDGMENT THIS CONSERVATION CREDIT PURCHASE AGREEMENT AND ACKNOWLEDGMENT ("Agreement") is entered into this , < day of &b+~-i &c 1996 by i between BA Properties Inc., a Delaware corporation ("Seller") and The City of Carlsbad, California ("Purchaser"). A. Agreement (the "Implementation Agreement") dated April 5, 1995 by and among Seller, as "Property Owner", The California Department of Fish and Game (I'CDFG''), and The United States Fish and Wildlife Service (YJSFWS") (CDFG and USFWS are referred to collectively hereinafter the "Resource Agencies"), the Resource Agencies have acknowledged the creatioi the Carlsbad Highlands Conservation Bank (the "Conservation Bank") and the right of Seller sell Tonservation Credits" as provided further therein. B. Purchaser desires to mitigate the loss of certain natural habitat values on real propertj located in San Diego County California commonly known as the interchange at Interstate 5 a Poinsettia Lane (the "Purchaser's Property"). C. Purchaser has agreed to purchase from Seller, and Seller has agreed to sell to Purchas 2.1 Conservation Credits (the "Conveyed Credits") from the Conservation Bank on the term and conditions set forth herein. Pursuant to that certain Carlsbad Highlands Conservation Bank Implementation NOW, THEREFORE, in consideration of the agreements and acknowledgments set f 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 "Closing Date"), immediately 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 acknowledgment 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 participate in the maintenance of Purchaser's Property. 2. Date, immediately available funds in the amount of $35,036.40. 3. Upon satisfaction of the conditions set forth in Paragraphs 1 and 2 above, Seller shal execute and deliver to Purchaser the Acknowledgment of Sale of Conservation Credits attac hereto as Exhibit B. Purchaser has deposited with Seller, or shall deposit with Seller on or before the Clo! Purchase Agreement Page 1 e 0 *, 4. Credits shall be made on an “AS IS, WHERE IS, WITH ALL FAULTS” basis as provided fo the Implementation Agreement; and (b) no representations or warranties have been made or a made and no responsibility has been or is assumed by Seller or by any officer, agent, affiliate representative acting or purporting to act on behalf of Seller as to: (I) the conservation value ( the property conveyed to the Resource Agencies in establishing the Conservation Bank, (ii) tl conservation value or mitigation requirements of the Purchaser’s Property, (iii) the acceptancc the Conveyed Credits by the Resource Agencies or any other governmental agency as mitigal for the loss of habitat values associated with the Purchaser’s Property, or (iv) any other fact 01 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 Cre shall be made with the City having no further responsibilities for the Property as describe the Implementation Agreement. 6. Paragraphs 1 and 2 above have not been satisfied by the Closing Date, at Seller’s election 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 providc Paragraph 7 below. 7. agreement, or dealings regarding the Conveyed Credits with, nor any communication in connection with the subject matter of this transaction through, any consultant, broker, agt finder, or other person who can claim a right to a consultant fee, commission or finder’s f in connection with the sale contemplated herein, other than the Seller’s consulting contra 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 indemnify, defend and hold Buyer harmless with respect theretc the event that any other consultant, broker or finder perfects a claim for a consultant fee ( commission or finder’s fee based upon any such contract, agreement, dealings or communication, the party through whom such claim is made shall be solely responsible 1 and shall indemnify, defend, and hold harmless the other party from and against said commission or fee and all costs and expenses (including without limitation reasonable attorneys’ fees) incurred by the other party in defending against such claim. The provisic of this Section 8 shall survive the termination of this Agreement. 8. Purchaser and Seller agree that all understandings and agreements heretofore ma( between them or their respective agents or representatives are merged in this Agreement the Exhibits attached hereto, and alone fully and completely express their agreement wit1 respect to the subject matter hereof and supersede all prior agreements and understandin; between the parties relating to such subject matter. Purchaser and Seller further agree th 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, Purchase Agreement Page 2 0 0 .(I Purchaser has no responsibilities or obligations whatsoever regarding the "Conservation Credits" except as are expressly stated in this Agreement. 9. All deposits, except the Endowment Deposit, and any notice required or permitted 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 expira 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 tl State of California. In the event a dispute arises concerning the meaning or interpretatior any provision of this Agreement, or in the event of any litigation arising out of or related this Agreement, the party 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, ea of which so executed and delivered shall be deemed to be an original and all of which shi constitute one and the same instrument. Purchase Agreement Page 3 4 0 0 WHEREUPON, this Agreement has been executed as of the date first-above writtt SELLER: BA PROPERTIES INC., a Delaware corporation 7 >Zh L a/ --I By: \-- --il \ f Name: Its: Corporate Real Estate - ORE0 #20005 450 B Street, Suite 620 San Diego, CA 92101 Attention: Mr. James Jackson FE~xNo. (619) 515-5655 PURCHASER: r "V Name: CLAUDE A. LEWIS Its: Mayor City of Carlsbad 2075 Las Palmas Drive Carlsbad, CA 92009 July 17, 1996 Purchase Agreement Page 4 6 0 0 CITY OF CARLSBAD BEACH EROSION COMMITTEE AGENDA DATE: September 10, 1996 TIME: PLACE: 4:OO p.m. TO 6:OO p.m. HOUSING & REDEVELOPMENT CONFERENCE ROOM 2965 ROOSEVELT STREET 438-1 161, EXTENSION 4354 NOTICE TO THE PUBLIC: IF A MEMBER OF THE PUBLIC WISHES TO ADDRESS THE COMMITTEE ON A NON-PUBLIC HEAl MATTER, A WRITTEN REQUEST FORM MUST BE FILED WITH THE CHAIR PRIOR TO THE TIME COMMITTEE CONSIDERS THE ITEM. THE PRESIDING OFFICER MAY, IN THE ABSENCE OBJECTION BY A MAJORITY OF THE COMMITTEE PRESENT, DECLINE TO PERMIT S PRESENTATION. IT IS NOT NECESSARY TO FILE A WRITTEN REQUEST TO SPEAK ON PU HEARING MATTERS. WHEN YOU ARE CALLED TO SPEAK, PLEASE COME FORWARD AND S: YOUR NAME, ADDRESS AND ITEM NUMBER. All persons requiring assistance or auxiliary aids in order to effectively participate may contac Engineering Department at least 24 hours prior to the meeting to arrange for reasonable accommodation CALL TO ORDER: ABSENT: ROLL CALL: HALL MEYER WILLIAMS REASONS PROHASKA HOWES JACKSON COMMENTS FROM THE AUDIENCE ON ITEMS NOT LISTED ON THE AGENDA: Please limit your comments to three minutes. (A total of five speakers may be heard.) APPROVAL OF MINUTES: August 13, 1996 1. FUTURE WORK EFFORTS: The Committee will discuss future work efforts such as on-! beach monitoring, bluff measurements, beach area needs assessment and routine cons1 services. 2. OLD BUSINESS: 3. NEW BUSINESS: 4. COMMITTEE MEMBER COMMENTS: 5. PUBLIC COMMENT: NEXT MEETING - Tuesday, October 8, 1996 ADJOURNMENT 0 0 Bank of America August 27,1996 Ms. Patricia Cratty City of Carlsbad Engineering Department 2075 Las Palmas Drive Carlsbad, CA 92009-1 576 Re: CARLSBAD HIGHLANDS CONSERVATION BANK CITY OF CARLSBAD SALE Dear Ms. Cratty: Enclosed please find a fully executed copy of the Conservation Credit Purchase Agreement and Acknowledgment and a fully executed Acknowledgment of Sale of Conservation Credit. The latter is your receipt for purchase of 2.1 credits. Upon presenting this to the U. S. Fish and Wildlife Service or Department of Fish and Game, it will serve as evidence that you have made the purchase. I understand you have forwarded the endowment portion of the sales price to the Wildlife Conserva~on Board directly and requested a receipt. Please let me knov if I can help. Thank you very much for your business and please do not hesitate to call if I can be of assistance to you in the future. r Vice President (61 9) 51 5-5653 Enclosures cc: Edna Schlee - Bank of America jj:\carlsbad\ Bank of America National Trust and Savings Association 450 "B" Street, Suite 620, San Diego, CA 92101 Phone 619/515-5646 Fax 619/515-5655 ,I 0 a ACKNOWLEDGMENT OF SALE OF CONSERVATION CREDITS The undersigned Seller hereby acknowledges that it has sold and conveyed to the City of Carlsbad 2.1 Conservation Credits from the Carlsbad Highlands Conservation Bank. All terms of this conveyance shall be governed by the provision of the Conservation Credit Purchase Agreement and Acknowledgment between Purchaser and the undersigned dated August 15, 1996. SELLER: BA PROPERTIES, INC., a Delaware corporation 1, bl 'I 4; . - ~,i~~ 8' By: -/ -. Dated: