HomeMy WebLinkAboutTchang, Paul K; 1997-02-12;. . . :
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CONSERVATION CREDIT
PURCHASE AGREEMENT AND ACKNOWLEDGMENT
THIS CONSERVATION CREDIT PURCHASE AGREEMENT AND
ACKNOWLEDGMENT (“Agreement”) is entered into this 12 t h day of ,1997 by FEBRUARY
and between Paul K.Tchang, Trustee U/T/A June 16,1978, as to an undivided 80% interest, and
to Escondido Serenas Development, Inc., a Nevada corporation, as to an undivided 20% interest
(collectively referred to as “Seller”) and The City of Carlsbad, California (“Purchaser”).
A. Pursuant to that certain Carlsbad Highlands Conservation Bank Implementation Agreement
(the ‘bplementation a) by and among BA Properties Inc. and the California Department
of Fish and Game (“CDFG”), and the United States Fish and Wildlife Service(“USFWS”) (CDFG
and USFWS are referred to collectively hereinafter as “Resource Agencies”) dated April $1995,
and assigned to Seller (“Property Owner”) pursuant to that Assignment from BA Properties Inc. to
Seller dated January 9,1996, the Resource Agencies have acknowledged the creation of the
Carlsbad Highlands Conservation Bank (the “Conmation Bar&“) and the right of Seller to sell
“Conservation Credits” as provided further therein.
B. Purchaser desires to mitigate the loss of certain natural habitat values on real property
located in San Diego County California commonly known as Cannon Road (the “Purchaa
ProDertv”).
C. Purchaser has agreed to purchase from Seller, and Seller has agreed to sell to Purchaser 20
Conservation Credits (the “Conveyed Credj&“) from the Conservation Bank on the terms and
conditions set forth herein.
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
(the “Closina Date”), immediately available funds in the amount of $32,950.40 (the “Endowment
l&g,&?), 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
(the “mwment Denosit Receipt’). The Endowment Deposit is a one-time payment. The
Purchaser shall have no further obligation to pay monies or otherwise participate in the
maintenance of the Conservation Bank.
Page 1
2. Purchaser has deposited with Seller, or shall deposit with Seller on or before the Closing
Date, immediately available funds in the amount of $3 17,049.60.
3. Upon satisfaction of the conditions set forth in Paragraphs 1 and 2 above, Seller shall
execute and deliver to Purchaser, the Acknowledgment of Sale of Conservation Credits attached
hereto as &h&&J.
4. Purchaser acknowledges and agrees thatz (a) the purchase and sale of the Conveyed Credits
shall be made on an “AS IS, WHERE IS, WJTH ALL FAULTS” basis as provided for in 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, or
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 of
the Conveyed Credits by the Resource Agencies or any other governmental agency as mitigation
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 aclmowledges and agrees that the purchase and sale of the Conveyed Credits
shall be made with the Purchaser having no further responsibilities for the Property as described in
the Implementation Agreement.
6. Time is of the essence in this Agreement. In the event the conditions set forth in
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 in Paragraph 7 below.
7. Seller and Purchaser each represent to the other that it has not had any contract, agreement,
or dealings regarding the Conveyed Credits with, nor any communication in connection with the
subject 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. In the event that any other consultant, broker, agent, or finder perfects a
claim for a consultant fee or commission or finder’s fee based upon any contract, agreement,
dealings, or communication, the party through whom such a claim is made shall be solely
responsible for 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
attorney’s fees) incurred by the other party in defending against such claim. The provisions of this
Section 7 shall survive the termination of this Agreement,
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8. Purchaser and Seller agree that all understandings and agreements heretofore made between
them or their respective agents or representatives are merged in this Agreement and the Exhibits
attached hereto, and alone fully and completely express their agreement with respect to the subject
matter hereof and supersede all prior agreements and understandings between the parties relating to
such subject matter. Purchaser and Seller further agree that Purchaser has no responsibilities or
obligations whatsoever regarding the Conveyed Credits except as are expressly stated in this
Agreement.
9. All deposits, except the Endowment Deposit, and any notice required or permitted to 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 shah be in writing and shah be deemed
to have been given when delivered by courier, when transmitted by facsimile (upon confirmation
of successfully completed transmission), or upon the expiration of five (5) business days after the
date of deposit of such notice in the United States mail, registered or certified mail, postage
prepaid, return receipt requested.
10. This Agreement shall be governed and construed in accordance with the laws of the State of
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
party not prevailing in such dispute or litigation shall pay any and all costs and expenses incurred
by the prevailing party in establishing or defending its rights hereunder, including, without
limitation, court costs and reasonable attorney’s fees.
11. This Agreement may be executed and delivered in any number of counterparts, each of
which so executed and delivered shah be deemed to be an original and all of which shah constitute
one and the same instrument.
Page 3
WHEREUPON, this Agreement has been executed as of the date first above written.
SELLER:
Paul K. Tchang Trustee U/T/A June 16,1978
Escondido Serenas Development, Inc.
Paul K. Tchang Trustee U/T/A June 16,1978
Escondido Serenas Development, Inc.
c/O Techbilt Companies
3575 Kenyon St.
San Diego, CA 92110
Fax No. (619) 223-2865
PURCHASER: City of Caflsbad, a municipal cgqoration
February 12, 1997
City of Carlsbad 2075 Las Pahnas Drive Carlsbad, CA 92009
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EXHIBIT A
ACKNOWLEDGMENT OF SALE OF CONSERVATION CREDITS
The undersigned Seller hereby acknowledges that it has sold and conveyed to the City of Carlsbad
(“Purchaser”) twenty (20) 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
SELLER:
Paul K. Tchang Trustee U/T/A June 16,1978
Paul K. Tchang, Trustee
Escondido Serenas Development, Inc.
a Nevada corporation
John E. Michaelsen, President
- ‘/RITE IT - DON’T SA?’ IT!
Date February 19 19 97
To
From
File
Isabelle Paulsen
0 Reply Wanted
q No Reply Necessary
On this date, Patty Cratty, Engineering Department, was sent an original,agreement for their files. Patty stated that the department would furnish an original to the consultant.
Council Meeting: February 11, 1997
Resolution No. 97-59