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)
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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
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EXHIBIT A I'