HomeMy WebLinkAbout1998-02-03; City Council; Resolution 98-270 0
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RESOLUTION NO. 98-27
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD,
CALIFORNIA, AUTHORIZING THE PURCHASE OF MITIGATION
CREDITS FOR CANNON ROAD WEST, PROJECT NO. 3184.
WHEREAS, the City Council of the City of Carlsbad, California has previously found
1) necessary and in the public interest to construct improvements known as Cannon Road We:
and
WHEREAS, such construction will result in an impact to 3.1 acres of southern maritin
chaparral vegetation which requires mitigation; and
WHEREAS, the United States Fish and Wildlife Service and California Department of Fi:
and Game require mitigation at a ratio of 2:l for a total of 6.2 acres as a condition of the Sectic
4d Interim Habitat Take Permit; and
WHEREAS, the City of Carlsbad is required to mitigate this impact by purchasing acrea!
in an off-site area of southern maritime chaparral or other habitat which is acceptable to Fedel
and State agencies; and
WHEREAS, the acquisition of land for wildlife conservation purposes is categorica
exempt from environmental review per Section 1531 3 of the CEQA Guidelines; and
WHEREAS, the Manchester Avenue Conservation Bank has been accepted by Fedel
and State agencies for mitigation purposes.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbz
California, as follows:
1. That the above recitations are true and correct.
2. That the City Council of the City of Carlsbad, California, authorizes the purchase
6.2 acres of mitigation credits from the Manchester Avenue Conservation Bank.
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That the City Council of the City of Carlsbad, California authorizes the Mayor 1
2 execute the agreement with Tech-Bilt, Inc., attached hereto as Exhibit “A’ and made a pa
3 hereof, for said purchase.
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PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City Counc
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held on the 3rd day of February , 1998 by the following vote, to wit:
6 AYES: Council Members Lewis, Finnila, Nygaard, Kulchin, and Hall
7 NOES. None
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ATTEST: 12
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;k -iJ q) ALETHA L. RAUTENKRANZ, City Clerk \ (SEAL)
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CONSERVATION CREDIT
PURCHASE AGREEMENT AND ACKNOWLEDGMENT
THTS CONSERVATION CREDIT PURCHASE AGREEMENT AND
ACKNOWLEDGMENT ("Agreementt') is entered into this day of , 1998 by and
between Tech-Bilt, Inc., ("Seller") and the City of Carlsbad ("Purchaser").
A. Pursuant to that certain Manchester Avenue Conservation Bank Implementation
Agreement (the "Imdementation Agreement") dated September 30, 1997 by and among Seller,
as "Property Owner", The California Department of Fish and Game (TDFG''), and The United
States Fish and Wildlife Service ('TJSFWS'') (CDFG and USFWS are referred to collectively
hereinafter the "Wildlife Agencies"), 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 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 Alignment (the
"Purchaser's Proaertv").
C. Purchaser has agreed to purchase from Seller, and Seller has agreed to sell to Purchaser
6.2 southern maritime chaparral Conservation Credits (the "Conveved 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 $215,964.60 (the "Purchase Price").
2. Purchaser has deposited with the Center for Natural Lands Management (the "Center"), or
shall deposit with the Center on or before March 1 , 1998 (the "Closing Date"), immediately
available funds in the amount of $9,709.20 (the "Endowment Deposit"), 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 $206,255.40.
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
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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 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.
6. Purchaser acknowledges and agrees that the purchase and sale of the Conveyed Credits
shall be made with the Purchaser having no Mer responsibilities 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 further 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 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 8 shall survive
the termination of this Agreement.
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
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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 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.
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
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WHEREUPON, this Agreement has been executed as of the date first-above written.
SELLER:
TECH-BILT, Inc.,
By:
Name:
Its:
By:
Name:
Its:
TECH-BILT, Inc.
P.O. Box 80036
San Diego, CA 92 1 3 8
Attention: Mr. Ted Tchang
Fax NO. (6 19) 223-2865
Name: Claude A. Lewis
Mayor Its:
City of Carlsbad
2075 Las Palmas Drive
Carlsbad, CA 92009
Attention: Mr. Michael Bock
Fax NO. (760) 438-0894
Purchase Agreement Manchester Avenue Conservation Bank Page 4 of 4 v.91697