HomeMy WebLinkAbout1997-02-11; City Council; Resolution 97-59, a W
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RESOLUTION NO. 97 - 5 9
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA, AUTHORIZING THE PURCHASE OF 20
ACRES FOR MITIGATION CREDITS FOR CANNON ROAD WEST,
PROJECT NO. 3184, AND RESERVES FOR FUTURE PROJECTS.
WHEREAS, the City Council of the City of Carlsbad, California has previously foL
necessary and in the public interest to construct improvements known as Cannon Road C
and
WHEREAS, such construction will result in an impact to an area of coastal sage :
vegetation which requires mitigation; and
WHEREAS, the City of Carlsbad is required to mitigate this impact by purchasing acr
in an off-site area of coastal sage scrub or other habitat which provides a clear preserv
benefit to the coastal California gnatcatcher and is acceptable to Federal and State ager
and
WHEREAS, the Carlsbad Highlands Conservation Bank has been accepted by Fe
and State agencies for mitigation purposes.
NOW, THEREFORE, be it hereby resolved as follows:
1. That the above recitations are true and correct.
2. That the City Council of the City of Carlsbad, California, authorizes the purchs
20 acres of mitigation credits from the Carlsbad Highlands Conservation Bank.
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I I1 3. That the City Council of the City of Carlsbad authorizes the Mayor to execute
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agreement with Paul K. Tchang, Trustee U/T/A and Escondido Serenas Development,
attached hereto as Exhibit “A and made a part hereof, for said purchase.
4. That the City Council hereby authorizes the Finance Director to appropriate up ts
not-to-exceed $210,000 from the General Capital Construction fund balance.
PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City Cc
held on the llth day of February , 1997 by the following vote, to wit:
AYES: Council Members Lewis, Nygaard, Kulchin and Hall
NOES: None
ABSENT Council Member Finnila
ATTEST llQd?iLA@- ALETHA L. RAUTENKRANZ, City Clerk \ (SEAL)
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CONSERVATION CREDIT
PURCHASE AGREEMENT AND ACKNOWLEDGMENT
THIS CONSERVATION CREDIT PURCHASE AGREEMENT AND
ACKNOWLEDGMENT (“Agreement”) is entered into this 12 t h day of FEBRUARY ,1997 by
and between Paul K.Tchang, Trustee UE/A June 16, 1978, as to an undivided 80% interest, and
to Escondido Serenas Development, Inc., a Nevada corporation, as to an undivided 20% interest
(collectively referred to as “Selle~‘~) and The City of Carlsbad, California (“Purchaser”).
A. Pursuant to that certain Carlsbad Highlands Conservation Bank Implementation Agreement
(the “Implementation Ameemenf’) by and among BA Properties Inc. and the California Department
of Fish and Game (“CDFG”), and the United States Fish and Wildlife Service(“USWS’) (CDFG
and USFWS are referred to collectively hereinafter as “Resource Aeencies”) dated April 5, 1995,
and assigned to Seller (“Property Owner”) pursuant to that Assignment from BA Properties Inc. to
Seller dated January 9,1996, the Resource Agencies have acknowledged the creation of the
Carlsbad Highlands Conservation Bank (the “Conservation Bank”) and the right of Seller to sell
“Conservation Credits” as provided further therein.
B . Purchaser desires to mitigate the loss of certain natural habitat values on real property
located in San Diego County California commonly known as Cannon Road (the “Purchaser’$
P”’) .
C. Purchaser has agreed to purchase from Seller, and Seller has agreed to sell to Purchaser 20
Conservation Credits (the “Conveyed Credit$’) 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 ‘‘Closing Date”), immediately available funds in the amount of $32,950.40 (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
(the “Endowment Deposit Receipt”). The Endowment Deposit is a one-time payment. The
Purchaser shall have no further obligation to pay monies or othelwise participate in the
maintenance of the Conservation Bank.
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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 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, 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 acknowledges 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 Agieement, 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 cornhission 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. hrchaser 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. l?urchaser 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 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 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.
1 1. 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.
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WHEREUPON, this Agreement has been executed as of the date first above written.
SELLER
Escondido Serenas Development, Inc.
v E. Michaelsen, President
Paul K. Tchang Trustee U/T/A June 16,1978
Escondido Serenas Development, Inc.
C/O Techbilt Companies
3575 Kenyon St.
San Diego; CA 921 10
Fax NO. (619) 223-2865
PURCHASER: City of Caflsbad, a municipal corporation ..
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By;. &CLAUDE< A. LEWIS, MAYOR
February 12, 1997
Date:
City of Carlsbad 2075 Las Palmas Drive Carlsbad, CA 92009
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EXHIBITA
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
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John E. Michaelsen, President