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HomeMy WebLinkAboutWestmark Development Corporation; 2010-04-13;North County MITIGATION CREDIT PURCHASE AGREEMENT AND ACKNOWLEDGMENT THIS MITIGATION CREDIT PURCHASE AGREEMENT AND ACKNOWLEDGMENT ("Agreement") is entered into this IS day of /L^gjJ^Jl , 2010 by and between WESTMARKDEVELOPMENT CORPORATION^aNevada corporation ("Seller") and CITY OF CARLSBAD, a municipal corporation of the State of California ("Buyer"). RECITALS A. Pursuant to that certain Banking Establishment Instrument regarding the Establishment, Operation and Use of the North County Habitat Bank dated May 23, 2007 (the "BEI"), by and among Westmark Development Corporation; the California Department of Fish and Game ("CDFG"); the United States Fish and Wildlife Service ("USFWS"); the United State Environmental Protection Agency ("USEPA"), and the United States Army Corps of Engineers ("Corps") (referred to collectively hereinafter as the "Agencies"). The Agencies have acknowledged the creation of the North County Habitat Bank (the "Mitigation Bank") and the right of Seller to sell "Mitigation Credits" to mitigate for the loss of wetlands and habitat as provided therein. B. Buyer desires to mitigate the loss of certain wetland/riparian or upland habitat values on real property located in San Diego County California commonly known as El Camino Real Widening Project (the "Buyer's Property") to satisfy Buyer's obligations with respect to wetland/riparian or upland habitat on Buyer's Property and to obtain permits and approvals to develop Buyer's Property. C. Buyer has agreed to purchase from Seller, and Seller has agreed to sell to Buyer 0.03 credits of Corps/CDFG Created/Restored Wetland/Riparian Mitigation, 0.03 credits of Corps/CDFG Enhanced/Preserved Wetland/Riparian Mitigation, and 0.04 credits of CDFG Created Wetland/Riparian Mitigation as defined in the BEI (the "Conveyed Credits") from the Mitigation Bank on the terms and conditions set forth herein. The 0.10 credit represents 0.06 acre of valid U.S. Army Corps of Engineers/California Department of Fish and Game mitigation habitat, and 0.04 acre of California Department of Fish and Game only mitigation habitat, all credits being fully consistent with the BEI. North County Habitat Bank 03207629-609-JH5 Mitigation Credit Purchase Agreement Page 1 of 5 v. 100609 C AGREEMENT 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 are hereby acknowledged, Seller and Buyer hereby agree and acknowledge as follows: 1. Purchase Price. The purchase price for the 0.10 Wetland/Riparian Mitigation Credits shall be $67,500.00. The Purchase Price shall be paid in good funds on the Closing Date. 2. Acknowledgment of Sale. On the Closing, Seller shall deliver a fully executed original of the Acknowledgment of Sale of Mitigation Credits ("Acknowledgment"), in form and content as Exhibit A attached hereto and such other documents and instruments as may be required by any federal, state, or local governmental agency with jurisdiction over the Buyer's Property to evidence and recognize the transfer of the Conveyed Credits to Buyer. Moreover, Seller agrees that to the extent such have not been provided to Buyer at the closing, then if requested by Buyer subsequent to the closing, Seller will provide such documents and instruments as may be required by any such governmental agency to evidence and recognize the transfer of the Conveyed Credits within ten (10) days following Buyer's request. The provisions of this Paragraph 2 shall survive the closing and termination of this Agreement. 3. Closing. The closing will occur on or before April 30,2010, or such other date to which the Buyer and Seller may mutually agree in writing (the "Closing Date"). The Closing shall mean the date that the Purchase Price is delivered to Seller, or an escrow agent designated by Seller. Notwithstanding the foregoing, Buyer may accelerate the Closing Date. 4. AS-IS Sale. Buyer acknowledges and agrees that: (a) it is the Buyer's sole responsibility to obtain a determination from each federal, state, or local governmental agency with jurisdiction over the Buyer's Property, including, without limitation, the Agencies and the Regional Water Quality Control Board that the Conveyed Credits are acceptable to each such governmental agency and/or suitable for Buyer's purposes, including, without limitation, mitigation for impacts to wetland/riparian values; (b) the purchase and sale of the Conveyed Credits shall be made on an "AS IS, WHERE IS, WITH ALL FAULTS" basis as provided for in the BEI; and (c) any completed sale of any Conveyed Credits shall be final. Buyer further acknowledges and agrees that except as otherwise expressly set forth in this Agreement, neither Seller nor any of its officers, affiliates, representatives, consultants, or agents have made any representations or warranties, or have assumed any responsibility, with respect to (i) the mitigation value or mitigation requirements of the Buyer's Property; (ii) the mitigation value of the property conveyed to the Agencies in establishing the Mitigation Bank; (iii) the acceptability of the Conveyed Credits to any federal, state, or local governmental agency with jurisdiction over the Buyer's North County Habitat Bank 03207629-609-JH5 Mitigation Credit Purchase Agreement Page 2 of 5 v. 100609 Property; (iv) the suitability or adequacy of the Conveyed Credits for Buyer's purposes in purchasing such Credits; or (v) any other fact or circumstances which might affect the Mitigation Bank, the Buyer's Property, the Conveyed Credits, or Buyer's purposes in purchasing such Credits. The Seller further specifically advises Buyer to consult with the Regional Water Quality Control Board as to the acceptability of the Conveyed Credits. The Regional Water Quality Control Board is not a signatory to the BEL 5. Termination. Time is of the essence in this Agreement. In the event the closing does not occur by the Closing Date, Seller, at its election, and in its sole and absolute discretion, by written notice to Buyer, may terminate this Agreement and neither party shall have any further obligations hereunder except as provided in Paragraph 6 below. 6. Brokers. Buyer represents to the Seller that it has not had any other 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 from the Seller in connection with the sale contemplated herein. In the event that a consultant, broker or finder makes a claim for a consultant fee or 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 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 attorneys' fees) incurred by the other party in defending against such claim. The provisions of this Paragraph 6 shall survive the termination of this Agreement. 7. Integration. Buyer and Seller agree that all negotiations, discussions, understandings and agreements heretofore made between them or their respective agents or representatives are merged in this Agreement and the Exhibit attached hereto, and this written Agreement alone fully and completely expresses their agreement with respect to the subject matter hereof and supersedes all prior agreements and understandings between the parties relating to the subject matter of this Agreement. Buyer and Seller further agree that Buyer has no responsibilities or obligations whatsoever regarding the Conveyed Credits or the BEI except as are expressly stated in this Agreement. 8. Notices. All deposits 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 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 expiration of two (2) business days after the date of deposit of such notice in the United States mail, registered or certified mail, postage prepaid. North County Habitat Bank 03207629-609-JH5 Mitigation Credit Purchase Agreement Page 3 of 5 v. 100609 7 9. Attorneys' Fees. This Agreement shall be governed and construed in accordance with the laws of the State of California and interpreted as if prepared by both parties hereto. 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 other party in establishing or defending its rights hereunder, including, without limitation, court costs, expert witness fees, and reasonable attorneys' fees. 10. Limited Representations and Warranties. Seller is a corporation duly formed, presently existing and in good standing under the laws of the State of Nevada, is qualified to transact business in the State of California, and has the power and authority to own, and does own, the Mitigation Credits, and the power and authority to consummate the sale of Conveyed Credits as contemplated by this Agreement, and the person executing this Agreement has the full authority to bind Seller. This Agreement and all instruments, including assignment and/or conveyance documents to be executed by Seller in connection herewith are or when delivered to Buyer will be duly authorized, executed and delivered by Seller and will be valid, binding and enforceable obligations of Seller. Neither this Agreement nor any instrument, including assignment and/or conveyance documents to be executed by Seller in connection herewith does now or will hereafter constitute a breach or default or invalidate, make inoperative or interfere with any contract, agreement, right or interest affecting or relating in any manner to the Conveyed Credits. The Conveyed Credits shall be assigned/conveyed to Buyer at the closing free and clear of all liens or other encumbrances of any type, monetary or non-monetary. 11. Counterparts. This Agreement may be executed and delivered in any number of identical 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. North County Habitat Bank Mitigation Credit Purchase Agreement Page 4 of 5 03207629-609-JH5 v.l 00609 n/-*• WHEREUPON, this Agreement has been executed as of the date first-above written. SELLER: WE corporation ELOPMENT CORPORATION, a Nevada Its: President Westmark Development Corporation c/o McCollum Associates 10196 Clover Ranch Dr Sacramento, CA 95829 Telephone: (916)688-2040 Fax: (916)688-7436 Email: mccollum@mccollum.com BUYER: CITY OF CARLSBAD, a municipal corporation^the State of Califor Name? Claude A. "Md" Lewis Its: Mayor Attention: Mr. David Hauser Deputy City Engineer Engineering Department City of Carlsbad 1635 Faraday Avenue Carlsbad CA 92008 Telephone: (760)602-2739 Fax: (760)602-8562 Email: dhaus@ci.carlsbad.ca.us USACOE Permit: N/A CDFG Agreement 1600-2008-0365-R5 RWQCB Permit 08C-074 North County Habitat Bank Mitigation Credit Purchase Agreement Page 5 of 5 03207629-609-JH5 v.l 00609