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HomeMy WebLinkAbout1977-09-06; City Council; 3481-10; Bullock's Temporary Encroachment Agreement</ ** .- I- \? ‘\-- *- - I CITY OF CARLSBAD Initial: Dept. Hd. * AGENDA BILL NO. &f/ e /D DATE : S-er 6, 1977 C. Atty.VF4 DEPARTMENT : City AttqSnev C. Mgr. - Subject: BULLOCK ’ S TEMPORARY ENCROAC€I?4ENT AGREE”F3T Statement of the Matter With the approval of the City ?Tanager, your attorney has negotiated a Temporary Encroachment Agreement which would allow May Company to accomplish certain construction activities on Parking Authority property. A memorandum to the City Manager discussing the details is attached. Exhibits Yemorandum to City Manager from Citv Attorney, dated August 22, 1977. i. Agreement. Resolution N~.J’)”)’~ , approving agreement. , Recommendation If the City Council concurs, vour action is to adopt Resolution No .d3 approving Bullock ’ s Temporary Encroachment Agreement. Council action 8-30-77 Resolution #5183 was adopted, approving Bullock’s Temporary Encroachment Agreement. c f MEMORANDUM DATE : August 22, 1977 TO : City Manager FROY: City Attorney SUBJECT. BULLOCK'S TEMPORARY ENCROACHMENT AGREEMENT As you know, our master agreement with May Company for expansion of the center provides that the City and Parking Authority will exchange the portion of the existing parking lot necessary for the Bullock's Store for a parcel of property outside the existing lot presently owned by May Company which will be improved in connection with the con- struction of the new parking lot. Because of May Company's construction schedule and the desire to open the Bullock's Store prior to the 1978 Christmas Season, it is necessary for them to commence construction early in September. It will not be possible to consummate the land exchange in time since that is dependent upon the recordation of the final map which still is in process. In order to accommodate the developer, it is necessary to execute a Temporary Encroach- ment Agreement. The attached agreement has been prepared along the lines of the existing agreement for the Broadway surcharge. The agreement gives the developer the right to perform certain work on our parking lot for a temporary period of time. When construction is complete, the developer is obligated to restore the improve- ments to their original state. This obligation is secured by a surety bond in the amount of $60,000. The agreement also provides that the developer will pay rent to the City which we are then obligated to apply to our lease payments to the Parking Authority. The rental payment is in the same proportion to our total rent obligation as the number of spaces taken out of service bears to the total number of spaces. The exhibit to the agreement identifies Parcel "A" and Parcel "B". Parcel "A" is that portion which we will exchange when the final map records. When the escrow closes, the rent on that parcel will abate. It is estimated that will occur within the next four months. The encroachment on Parcel "B" will be for a longer C. City Manager -2- August 22, 1977 period, corresponding with the construction process on the new Bullock's Store. It is our estimate that that will be completed by December 31, 1978. The engineers indicate the encroachment on Parcel "B" is necessary because there are certain things which must be done on that part of the lot in connection with the expansion of the center that are best done at the same time as the excavation and development of the Bullock's site. Rent on Parcel "B" will continue until the encroachment is removed and the lot restored. With your concurrence, it is my intention to submit the agreement to the City Council at their meeting of September 6, 1977 and to the Parking Authority as soon as possible there- after. The developer intends to commence work on the encrroach- ment area as soon as the agreements have been approved. VINCENT F. BIONDO, JR. City Attorney VFB/mla Attachment 's This agreement is made t5i.s 23rd (lay of August , 1377, by and between the City of Carlsbad., California (the "City"), the Parking Authority of the City of Carlshad (the "Auth.ori.?-y") and. Plaza Camino Real, a California limited partnership ("Developer") . WI TIil E S S ET H 1__.-1- WHEREAS, Deve3.oper has entered into an agrecnent dared 1'JovernSer 5, 1975 with Authorj-ty and City with respect+ to the expansion of the Plaza Camirio Real. Reqional. Shopping Center hy the addition of two major stores (the "Expansion Agreement"); and . P7€1ERZAS, one of said major stores will be a Bull.ock's Department Store; and WHERE?!-S, as set forth in the Expansion Agreement, the southern portion of the Bullock's Store will be located on land that is presently a part of the Existing Public Parking Area owned b57 the Authority and leased! to Cii47, shown as Parcel. A, on Exhibit A, attached hereto and made a part hereof; and WHEREAS, as contemplated by the Expansion Agreement , Authority 2nd City have agreed to convey said land to Developcr. A condition prccec!c>nt to such exchaiige is the conveyance of equivalent acreage elsewhere in the Center by Developer to Authority. Said acreage to be improved by Developer so as to be of at least equal value and utility for parking purposes: and WHEREAS, the Expansion Agreement further provides that arrangements for such conveyances must be acceptable to City and Authority and must be made before construction is conunenced on the Bullock's Store; and WHEREAS, Authority, City and Developer have agreed that the exchange will not occur until the final map has been recorded pursuant to the Subdivision Map Act establishing the parcels to be exchanged as separate lots; and WHEREAS, on August 2, 1977 City approved the tentative subdivision map for the proposed expansion which provides for said lots and Developer is actively moving to meet the require- ments necessary to obtain approval of the final map; and WHEREAS, in order to achieve the scheduled date for the opening of the Bullock's Store, it will be necessary for Developer to commence grading and excavation for the building pad of the Bullock's Store and to relocate certain utilities on the portion of the Bul.lock's Store site presently owned by the Authority prior to the recording of the final map; and . WHEREAS, in order to accomplish the expansion in accord- ance with the Expansion Agreement, Developer must do certain work including, but not limited to, regrading a portion of the existing public parking lot and the installation and relocation 2. of utilities on said portion shown as 'Parcel B, on Exhibit A. It is necessary that said work be accomplished in conjunction with the grading and excavation of the Bullock's site; 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 with Developer in their expansion efforts in order to acquire said facilities; and 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 willing to accommodate the Developer in accord with the terns of this agreement. NOW, THEREFORE, t.he Parties hereto agree as follows: 1. Authority and City hereby grant to Developer the right to temporarily encroach on Authority property, to grade and excavate the portion of the Bullock's Store site presently owned by Authority for the purpose of preparing the building pad for 9 the Bullock's Store shown as Parcel A, on Exhibit A. Developer is also hereby granted the right to relocate any utilities situated thereon to other portions of the existing Public Parking Area owned by Authority, in accordance with the precise plan of development approved by the City pursuant to the Expansion Agreement. 2. Authority and City hereby grant to Developer the right to temporarily encroach on Authority property, to grade, relocate 3. .- A and instaL1 utilities and accomplish other related work on an area of the existing Public Parking Lot shown as Parcel B, on Exhibit A. Developer is also granted the right to relocate any utilities situated thereon to other portions of the existing Public Parking Lot owned by Authority. All rights granted by this agreement for work shall be exercised in accordance with the Expansion Agreement and the precise plan of development approved by City pursuant thereto. 3. All rights granted by Sections 1 and 2 hereof to Developer, shall be exercised in accord with the City of Carlsbad grading ordinance after securing all necessary permits. Developer agrees to pay City $428.76 per month for the encroachment on Parcel A, Developer agrees to pay City $714.60 per month for the encroachment on Parcel B. Said monthly payments shall be made in advance on the first day of. each month. are c0mputed.i.n the proportion which the parking capacity of Said monthly payments said properties bear to the parking capacity of the facilities which are the subject of that certain Lease Agreement (hereinafter "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. 4. Upon the close of the exchange of land for the Bullock's Store site, rental payments for Parcel A shall terminate. If said exchange fails to close within such time as the parties hereto 4. may agree, Developer agrees to vacate Parcel A and to immediately reconstruct and restore the improvements on the subject Authority property to the condition existing as of the date of this agree- ment. 5. Notwithstanding the provisions of Section 4 hereof, Developer agrees to vacate both Parcels A and B and reconstruct and. restore the improvements to the condition existing as of the date of this agreement 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 Decenber 31, 1978. 6. 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 encroachments under that s certain Grant Deed, dated October 21, 1969, which Grant Deed was recorded the same date as Document No. 193480, Official Records of San Diego County, California. Nothing .herein shall be construed as affecting the right of Developer and its successors in interest to exercise its reversionary rights under said Grant Deed in connec,tion with any other event. 7. 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 the rights granted herein in the amount of $1,000,000. 5. IN WITNESS WHEREOF, the Parties hereto have executed this agreement as of the day and year first above written. ATTEST : CITY OF CARLSBAD BY Mayor BY Clerk . ATTEST : THE PARKING AUTHORITY OF THE CITY OF CARLSBAD, CALIFORXIA ATTEST : APPROVED AS TO FORM: PLAZA CANIN0 REAL, a California limited partnership By: The May Stores Shopping Centers, Inc. VINCENT F. BIONDO, JR. City Attorney 6. .. ., GUARANTY The May Stores Shopping Centers, Inc., a Missouri corporation authorized to do business j-n the State of California, hereby guarantees Developer’s obligations under the foregoing agreement and further agrees to furnish security in favor of City and. Authority guaranteeing the obligation therein set forth to restore and reconstruct the parking lot improvements. Said security to be a surety bond in the amount of $60,000. ATTEST : TEE ,NAY STORES SHCPPING CENTERS, INC. APPROVED AS TO FORM: VINCENT F. BIONDO, JR. City Attorney - . f u 1t 1s 2[ 21 22 22 24 25 26 27 28 RESOLUTION NO. 5183 A F33SOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORPJIA, APPROVING AN AGREE- MENT BETWEEN THE CITY OF CARLSBAD, THE PAPXING AUTHORITY AND PLAZA CAMIIJO mAL FOR A TEMPORARY ENCROACHMENT ON PAWING AUTHORITY PROPERTY TO ALLOW DEVELOPER TO ACCOrtPLISII CERTAIN CONSTRUCTIOPJ ACTIVITIES IN CONNECTION WITH THE BULLOCK'S STORE AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT. The City Council of the City of Carlsbad, California, does hereby resolve as follows: 1. That that certain agreement between the City of Carlsbad, the Parking Authority and Plaza Camino Real, dated August 23, 1977 for a temporary encroachment on Parking Authority property to allc developer to accomplish certain construction activities in connection with the Bullock's Store, a copy of which is attached hereto as Exhibit A, and made a part hereof, is hereby approved. 2. That the Mayor of the City of Carlsbad is hereby author- ized and directed to execute said agreement for and on behalf of the City of Carlsbad. an adjourned PASSED, APPROVED AND ADOPTED at / regular meeting of the City Council of the City of Carlsbad, California, held on the 30th day of August , 1977, by the following vote, to wit: AYES : Councilmen Frazee, Lewis, Packard, Skotnicki and NOES : None Ccuiiciiwurrrari Casier ABSENT: None ATTEST: ' rHiiLm-45 E. ADA!!!!S, kity Clerk