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HomeMy WebLinkAboutPIP 97-07; Newton Business Center; Planned Industrial Permit (PIP) (26)INDUSTRIAL DEVELOPMENTS INTERNATIONAL (IDI) 18101 Von Karman Avenue, Suite 120 Irvine, CA 92612 (714) 833-9998 TRANSMITTAL DATE: January 30,1998 FROM: Alan Sharp VP Construction SUBJECT: Conservation Credit Purchase Agreement and Acknowledgment Newton Business Center TO: Don Rideout ADDRESS: City of Carlsbad Planning Department 2075 Las Palmas Drive Carlsbad, CA 92009 TELEPHONE: (760) 438-1161 ITEMS TRANSMITTED: One (1) copy of Conservation Credit Purchase Agreement and Acknowledgment and one (1) copy of Acknowledgment of Sale of Conservation Credits for Newton Business Center. COMMENTS: For your files. This package is being sent via: U. S. Mail Attachments AJS:ks cc: Jennifer Witt -Dan Webb Newton Business CenterLand File CONSERVATION CREDIT PURCHASE AGREEMENT AND ACKNOWLEDGMENT THIS CONSERVATION CREDIT PURCHASE AGREEMENT AND ACKNOWLEDGMENT ("Agreement") is entered into this 14 day of JH , 199s by and between Tech-Bilt, Inc., ("Seller") and Industrial Development International, Inc. ("Purchaser"). A. Pursuant to that certain Manchester Avenue.Conservation Bank Implementation Agreement (the "Implementation Ameement") dated September 30, 1997 by and among Seller, as "Property Owner", The California Department of Fish and Game ("CDFG"), and The United States Fish and Wildlife Service (YJSFWS") (CDFG and USFWS are referred to collectively hereinafter the "Wildlife Atzencies"), the Wildlife Agencies have acknowledged the creation of the Manchester Avenue Conservation Bank (the "Conservation Bank") and the right of Seller to sell southern maritime chaparral and multispecies "Conservation Credits" as provided fiuther 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 Newton Drive Industrial Facility Site (the "Purchaser's Property"). C. Purchaser has agreed to purchase from Seller, and Seller has agreed to sell to Purchaser 0.8 multispecies 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: hase price for the Conveyed Credits shall be $15,200 (the "Purchase Price"). . 7.1990 6% 2. Purchaser has deposited &ith the atural Lands Management (the "Center"), or shall deposit with the Center on or before (the "Closing Date"), immediately available hds in the amount of $1,252.80 (the "Endowment Deuosit"), and Seller has received, or shall receive prior to the Closing Date, the Center'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 Purchaser shall have no further obligation to pay monies or otherwise participate in the maintenance of the Conservation Bank. 3. Purchaser has deposited with Seller, or shall deposit with Seller on or before the Closing Date, immediately available funds in the amount of $13,947.20. 4. Upon satisfaction of the conditions set forth in Paragraphs 2 and 3 above, Seller shall execute and deliver to Purchaser the Acknowledgment of Sale of Conservation Credits attached Purchase Agreement Manchester Avenue Conservation Bank Page 1 of4 v.9 1 697 hereto as Exhibit B. 5. 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, 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 acceptace 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. 6. Purchaser acknowledges and agrees that the purchase and sale of the Conveyed Credits shall be made with the Purchaser having no further responsibiiities for the Property as described in the Implementation Agreement. 7. Time is of the essence in this Agreement. In the event the conditions set forth in Paragraphs 2 and 3 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 Wher obligations hereunder except as provided in Paragraph 8 below. 8. 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 ("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 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 al! costs and expenses (induding with.out litnitation reasonable attoncys' fees) incurred by the other party in defending against such claim. The provisions of this Section 8 shall survive the termination of this Agreepent. 9. 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 Purchase Agreement Manchester Avenue Conservation Bank Page 2 of 4 v.91697 responsibilities or obligations whatsoever regarding the "Conservation Credits" except as are expressly stated in this Agreement. 10. 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 shall be in writing and shall be deemed to have been given when delivered by courier, when transmitted by facsimile (upon confirmation of successhlly 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. 1 1. 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 other party in establishing or defending its rights hereunder, including, without limitation, court costs and reasonable attorneys' fees. 12. 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. Purchase Agreement Manchester Avenue Conservation Bank Page 3 of 4 v.91697 WHEREUPON, this Agreement has been executed as of the date first-above written. SELLER: TECH-BILT, Inc. By: Name: Its: TECH-BILT, Inc. P.O. Box 80036 San Diego, CA 92 138 Attention: Mr. Ted Tchang Fax NO. (61 9) 223-2865 PURCHASER: By: Name: Industrial Developmentdnternational, Inc 18 101 Von Karman Avenue, Suite 40 Irvine, CA 92612 Attention: Mr. J. R. Wetzel Fax No. (71 4) 476-4495 Purchase Agreement Manchester Avenue Conservation Bank Page 4 of 4 v.91697 ACKNOWLEDGMENT OF SALE OF CONSERVATION CREDITS The undersigned Seller hereby acknowledges that it has sold and conveyed to Industrial Developments International (“Purchaser”) zero point eight (0.8) Conservation Credits from the Manchester Avenue Conservation Bank for the biological mitigation of multi species impacts in connection with the projects known as the Newton Drive Industrial Facility. 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 January 19, 1998. Seller also acknowledges that Buyer has paid the full proceeds due including those amounts to be applied towards the Endowment Deposit. Seller acknowledges that it is the Seller’s responsibility to pay the Endowment Deposit associated with Buyer’s purchase. SELLER: By:Tech-Bilt, Inc. Ted Tchang, Vice President Date