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HomeMy WebLinkAbout1976-10-05; City Council; 3481-4; Plaza Camino Real: Broadway AgreementI The %ay Company has indicated that their plans for the expansion of the Plaza Camino Real Center may include the addition of a 5th major store (Broadway). In order to accommodate the proposed 5th store, it is necessary to surcharge the potential building site. A portion of the surcharge would be located on Parking Authority property. The surcharge material, presently being used for Marron Road, will be transferred to the site. To maintain the established construction schedule for the completion of the road, the transfer must commence on October 11, 1976. Meetings have been held with repre- sentatives of May Company, and Bond Counsel, and an agreement has been reached which would accommodate May Company's plans. A letter from the City's Bond Counsel in that regard is attached. The proposed agreement would allow the May Company to surcharge the site on a temporary basis. The City would receive full rental value for the temporary loss of 88 parking spaces. In addition to rent, the May Company has furnished a bond in the amount of $75,000 to guarantee their removal of the surcharge and reconstruction and restoration of the parking lot improve- ments. The Parking Authority's consent is required. If'the Council approves the agreement, a special meeting of the Authority will be held prior to October 11, 1976. Exhibits Letter from Fritz Stradling, Bond Counsel, dated October 4, 1976. Resolution No. @23 , approving Broadway Surcharge Agreement. Broadway Surcharge Agreement. Recommendation If the City Council concurs in the proposed Broadwa Surcharge Agreement, your action is to adopt Resolution No. $dzw?? approving the agreement and authorizing its execution by the Mayor. (See Page 2 for Council action) - AGENDA BILL NO. 3481 - Supplement 4 Page 2 10-7-76 Resolution #4023 was adopted, approving the Broadway Surcharge Agreement and authorizing its execution by the Mayor. RUTAN SI TUCKER A. w. RUTAN tiaa0-1~7~1 JAMES 8. TUCKER, SR. IlaeB-leSOl MILFORD W. DAWL RICHARD P. SfMS NORMAW H. SMEDECAARD JOHN J. MURPHY ti. RODGER HOWELL ROBCRT C. BRAUN JAMES 8. TUCKER ROGER A. GRABLE GARVIN F. SHALLENBERGER EDWARD D. SYSESMA. JR. JAMES R MOOmF THOMIS 5. SaLINGER . __ - HERSERT W WALKER BARRY R LAJBSCHER ~~ ROBERT L. RlSLEI FRITZ A. STRADLING PAUL FREDERlC MAQX HOMER L. MCCORMlCK. HOWARD F. HARRISON JAMES E. ERICKSON RICHARD A. CURNUTT LEONARD A, HAMPCL JOHN 6 HURLBUT. JR MICHAEL W. IMMELL WILLIAM C. DEANS WILLIAM R. BlEL MILFORD w DAnL. JR. THEODORE I. WALLACE. STUART T WALDRIP C. RlCWCRD LEMON E~UCE R. CDRBETT STEPI-EN D. NUT1 THOMAS P. CLARK. JR. AR. DAV~D C. LARSEN JOHN C. TEAL. JR. DANIEL K. WlNTON CLIFFCRD E. FRIEDEN JOHN a. GLOGCR ARTHUR G. KEDMAN MICHAEL D. RUBIN ELIZAEETH A. STRAUSS MARC W'NTHROP iRli G. RIVIN DAVID L. COLGAN i~. CHARLES T. HAWRINGTON ATTORNEYS AT LAW THE BANK OF CALIFORNIA BUILDING 401 civic CENTER DRIVE WEST POST OFFICE BOX 1976 SANTA ANA, CALIFORNIA 92702 17141 835-2200 October 4, 1976 OF COUNSEL W. K. LINDSAY NEWPORT BEACH OFFICE 610 NEWPORT CENTER DRIVE. SUITE 900 NEWPORT BEACH. CALIFORNIA 92660 TELEPHONE (714) 835-2200 Carlsbad, California 92008 RE: Encroachment Agreement with Plaza Camino Real, a Limited Parhership by May Stores Shopping Centers, Inc., a General Partner Dear Mr. Biondo: After our recent con 4 erence on Friday, October 1, 1976, you requested our opinion as to whether the Parking Authority of the City of Carlsbad (hereinafter "Authority") and the City of Carlsbad (herein after "City") has the authority, pursuant to Parking Authority Resolu- tion No. 5 dated August 21, 1969 (hereinafter "1969 Trust Indenture") to permit a temporary encroachment on Authority property by the tem- porary placement of dirt on a portion of said property by Plaza Camino Real, a Limited Partnership, in anticipation of the proposed expansion of the Plaza Camino Real Regional Shopping Center. In this regard, Covenant 5 of the 1969 Trust Indenture of the Parking Authority provides, in relevant part, as follows: Covenant Against Encumbrance, etc.; Use of Condem- nation or Sale Proceeds. ment, and except to the extent permitted herein, the Authority shall not mortgage or otherwise encumber, sell, lease or dispose of any of its facilities or properties any revenues of which are charged with the payment of the bonds issued hereunder, or any revenues therefrom, or enter into any lease or agreement (which might impair or impede the operation of such facilities or properties, or any part thereof, or might otherwise impair or impede the rights of the bondholders with Except for the Lease Agree- - c 9 RUTAN & TUCKER Mr. Vincent F. Biondo October 4, 1976 Page Two respect to such revenues. In the event of any default by the City under the Lease Agreement, this covenant shall not be construed to prevent the Authority, acting in accordance with the Park- ing Law and the Lease Agreement from: (1) contracting for the. operation or management of any of its facilities or properties; (2) leasing of the operation of the property. It is our opinion that Covenant 5 precludes the temporary use of property pledged by the 1969 Trust Indenture for other than public parking only if said use might impair or impede the operation of the facilities or properties,’ or any part thereof, or might otherwise impair or impede the rights of the bondholders under the 1969 Revenue Indentpre. Accordingly, any Agreement among the Parking Authority, the City and Plaza Camino Real which would provide for monthly payments by Plaza Camino Real to the City ifi the proportion which the parking capacity - of the property subject tq the encroachment bears to the total parking capacity of the facility multiplied by the monthly rental due the Parking Authority by the City would be sufficient to avoid breach of Covenant 5 in that, by virtue of said payment, neither the operation of the facilities nor the rights of the bondholders would be impaired. We would, further, be of the opinion that any such encroachment is subject to the consent of the Parking Authority as required by Sec- tion 12 of that certain LEASE AGREEMENT, dated August 19, 1969, by and between the Parking Authority and the City. If you have any further questions on this matter, please feel free to contact the undersigned. Very truly yours, RUTAN & TVCKER FritzJStradling FRS:ct . AGREEMENT . , 1976 October This agreement is made this .5th day of by and between the City of Carlsbad, Califprnia (the "City"), the Parking Authority of the City of Carlsbad, (the "Authority") and Plaza Camino Real, a California limited partnership ("Developer"). WITNESSETH WHEREAS, Developer has entered into an agreement with Authority and City with respect to the expansion of the.Plaza Camino Real Regional Shopping Center by the addition of two major stores; and WHEREAS, Developer wishes to make provision for the possible addition of a fifth major store to the Center,as a part of said expansion; and I .. WlEREAS, in order to accommodate the possibility of the fifth store it is necessary to temporarily place a surcharge of dirt on the proposed store site which must be accomplished in conjunction with the. .. surcharging currently being conducted pursuant to said agreement in connec- tion with the addition of the third and fourth stores; and WHEREAS, as a result of the proposed expansion of the Center, . Authority will acquire, at less than cost, title to an expanded, fully \ improved, public parking facilities and it is in the Authority's and City's interest to cooperate to acquire said facilities; and with Developer in their expansion efforts in order WHEREAS, City and Authority are satisfied that the number of spaces affected will not interfere with the overall operation of the parking facilities and are willin? to accommodate the Developer in accord with the terms of this agreement. I NOW, TIIEREFORE, the Parties hereto agree as follows: .* 1. Authority and City hereby grant Developer the right tg temporarily encroach on Authoricy property by the temporary placement of dirt on a portion of'said property as shown on Exhibit "A", attached hereto and made a part hereof. Said placement shall be accomplished in accord with the City of Carlsbad grading ordinance after securing all necessary permits. Developer agrees to pay City $357.37 per month for the encroachment on said property. be made in advance on the first day of each month. Said monthly payment shall Said monthly payment is computed in the proportion which the parking capacity . of said property bears to the parking capacity of the facilities which are the subject of that certain Lease Agreement, (herein- after "Lease Agreement") made and entered into as of the 21st day of August, 1969, by and between the Authority and City. City hereby pledges said monthly payments to the rental payments due. in connection with the aforementioned Lease Agreement. 2. Developer agrees to remove the dirt from the Authority property upon the receipt of a written request therefor from City or Authority. Authority and City agree that the said request will not be made prior to January 31; 1978. 3. Developer agrees, immediately upon removal of the dirt, to reconstruct and restore the improvements on the subject property to the condition existing as of the date of this agreement. 4. Developer agrees that it, and its successors in interest, will not assert any right to exercise its right of reverter which . it may have by virtue of said encroachment under that certain Grant Deed, dated October 21, 1969, which Grant Deed was recorded the same date as Document No. 193480, Officigl Records of San Diego County. Nothing herein shall be construed as affecting the right .. 2 .its 6uccessors in Interest to exercise its rights under said Grant Deed in connection with*any of Deveaper ant I reversionary other event. 5. Developer agrees to furnish a'certificate evidencing, in form satisfactory to the City Attorney, liability insurance in favor of.City and Authority for property damage and personal injury. in connection with said encroachment in the amount of ' $1,000,000. ATTEST : CITY OF CARLSBAD BY MAYOR CLERK . THE PARKING AUTHORITY OF THE CITY OF CARLSBAD, CALIFORNIA ATTEST : BV ,ATTEST : PLAZA CAMINO REAL, A Limited Partnership By The May Stores Shopping Centers, Inc. ,,Its Generah Partner 7&a APPROVED AS TO FORM: VINCENT F. BIONDO, JR. * City Attorney ... 3 ., 8. 't . ., .- I GUARANTY Shopping Centers', Inc., a Missouri corpora.tion in the State of California, hereby guarantees The May Stores authorized to do business Developer's obligations under the foregoing agreement and further agrees to furnish security in favor of City and Authority guaranteeing the obliga- tion therein set forth to remove the material and restore and reconstruct the parking lot improvements. amount of $75,000. Said security to be a surety bond in the ATTEST3 PRESIDENT APPROVED AS TO FORM: 8 VINCENT E'. BIONDO, JR. City 'Attorney I' .. . ,! -. 4 .. .. .. ., _. EXHIBIT A I'