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HomeMy WebLinkAboutCT 99-08; Spyglass II; Tentative Map (CT) (23)Design Groupplnc. July 19, 2001 John Martin U.S. Fish and Wildlife Service 2730 Loker Avenue West Carlsbad, CA 92008 RE: SPYGLASS/WHELAN RANCH CONSERVATION BANK AND PURCHASE OF CREDIT Dear John: I apologize for the delay; attached are the final papers for Concordia's purchase of 0.2 conservation credits from Whelan Ranch. This should conclude the mitigation of the proposed impact to the Spyglass project. Please look everything over and if you have any questions, please give me a call. Sincerely, LADWIG DESIGN GROUP, INC. Robert C. Ladwig, President RCL:mo Enclosures ornuaeouiw/ericlosures) Bruce Tail (w/enclosures) Ken Howe, Concordia Homes (w/o enclosures) 703 Palomar flirport Road 4 Suite 300 + Carlsbad, California 92009 (760) 438-3182 FflX (760) 438-0173 VIA AIRBORNE June 21,2001 Ken Howe Concordia Homes 1903 Wright Place, Suite 120 Carlsbad, CA 92008 Tel (760) 804-1576 x 106 Bankof America B A Propertiesrffi 333 South Beaudry Ave., 25th Floor Los Angeles, California 90017 Robert J. Benson Assistant Real Estate Manager Real Estate Group/OREO Tel: (213)345-5329 Fax: (213)345-0047 E-Mail: robert.j. benson@ bankamerica.com Re: Whelan Ranch Conservation Bank B A Properties, Inc. Dear Mr. Howe: Enclosed please find a fully executed Conservation Credit Purchase Agreement and Acknowledgment and Exhibit "A" - Acknowledgement of Sale of Conservation Credits between BA Properties and LB/L Concordia Carlsbad 19, LLC that will serve as your receipt to the City of Oceanside and/or wildlife agencies for the purchase of 0.2 Conservation Credits from the Whelan Ranch Conservation Bank. Thank you and should you have any questions, please do not hesitate to contact myself or Michael McCollum. Sincerely, Robert Benson Enclosure cc: Michael McCollum Bob Birmingham RECEIVED JUL 1 8 2001 LADWiG DESIGN GR Bank of America National Trust and Savings Association CONSERVATION CREDIT PURCHASE AGREEMENT AND ACKNOWLEDGMENT THIS CONSERVATION CREDIT PURCHASE AGREEMENT AND ACKNOWLEDGMENT ("Agreement") is entered into this I ( day of JIAIA^ 2001 by and between BA Properties Inc., a Delaware corporation ("Seller") and LB/L Concordia Carlsbad 19, LLC, a Delaware limited liability company ("Purchaser"). A. Pursuant to that certain Whelan Ranch Conservation Bank Implementation Agreement (the "Implementation Agreement") dated December 4,1997 by and among Seller, as "Property Owner", 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 the "Wildlife Agencies"), the Wildlife Agencies have acknowledged the creation of the Whelan Ranch Conservation Bank (the "Conservation Bank") 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 Spyglass II (the "Purchaser's Property"). C. Purchaser has agreed to purchase from Seller, and Seller has agreed to sell to Purchaser 0.2 Conservation Credits (the "Conveyed Credits") 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. The purchase price for the Conveyed Credits shall be $5,600.00 (the "Purchase Price"). 2. Purchaser has deposited with Seller, or shall deposit with Seller on or before June 14, 2001 (the "Closing Date"), immediately available funds in the amount of $5,600.00. 3. Upon satisfaction of the conditions set forth in Paragraphs 2 above, Seller shall execute and deliver to Purchaser the Acknowledgment of Sale of Conservation Credits attached hereto as Exhibit A. 4. Purchaser acknowledges and agrees that: (a) 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 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, Whelan Ranch Conservation Bank Purchase Agreement Page 1 of 4 v. 120398 affiliate, or representative acting or purporting to act on behalf of Seller as to: (i) the conservation value of the property conveyed to the Wildlife 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 Wildlife 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. Time is of the essence in this Agreement. In the event the conditions set forth in Paragraph 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 6 below. 6. 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, other than the Seller's consulting contract with McCollum Associates. The Seller shall be solely responsible for any consulting fee owed to McCollum and agrees to indemnify, defend and hold Buyer harmless with respect thereto. In the event that any other consultant, broker or finder perfects 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 Section 6 shall survive the termination of this Agreement. 7. 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 "Conservation Credits" except as are expressly stated in this Agreement. 8. 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, return receipt required. 9. This Agreement shall be governed and construed in accordance with the laws of the Whelan Ranch Conservation Bank Purchase Agreement Page 2 of 4 v. 120398 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 other party in establishing or defending its rights hereunder, including, without limitation, court costs and reasonable attorneys' fees. 10. 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. Whelan Ranch Conservation Bank Purchase Agreement Page 3 of 4 v.120398 WHEREUPON, this Agreement has been executed as of the date first-above written. SELLER: BA PROPERTIES INC., a Delaware corporation Name: Robert W. Birmingham Its: Vice President By: Name: Its: Real Estate Group/OREO 4820 Irvine Boulevard Irvine, CA 92620-1910 Attention: Robert W. Birmingham Phone: (714)734-2060 Fax: (714)734-2087 PURCHASER: LB/L CONCORDIA CARLSBAD 19, LLC a Delaware limited liability company By: LB/L CONCORDIA MASTER, LLC a Delaware limited liability company Its: Initial Member By: LB/Lakeside Capital Partners, LLC a Delaware limited liability company ring Member £/ UA.^2 lXw-^\ Name Its: Authorized Signature Concordia Homes 1903 Wright Place, Suite 120 Carlsbad, CA 92008 Attention: Mr. Ken Howe Phone: (760) 804-1576 x!06 Fax: (760) 804-1577 Whelan Ranch Conservation Bank Purchase Agreement Page 4 of 4 v. 120398 Bank of America EXHIBIT "A' ACKNOWLEDGMENT OF SALE OF CONSERVATION CREDITS The undersigned Seller hereby acknowledges that it has sold and conveyed to LB/L Concordia Carlsbad 19, LLC ("Purchaser") 0.2 Conservation Credits from the Whelan Ranch Conservation Bank. All terms of this conveyance shall be governed by the provisions of the Conservation Credit Purchase-Deposit Agreement and Acknowledgment between Purchaser and the undersigned dated June 11, 2001. SELLER: BA PROPERTIES, INC., a Delaware corporation By: . Name: Robert J. Benson Its: Assistant Vice President jYwhelan\e.xhibita.doc