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HomeMy WebLinkAbout1978-11-21; City Council; 3481-19; 5th Supplement to expansion of Plaza Camino RealCITY Or CARLSBAD AGENDA BILL NO. 348/- *I? DATE : November 21, 1978 Subject : FIFTH SUPPLEMENT TO THE AGREEMENT FOR THE EXPANSION OF THE PLAZA CAMINO REAL SHOPPING CENTER Statement of the Matter 1 Exhibits The Basic Agreement between the Parking Authority, City and Plaza Camino Real for the expansion of the Shopping Center was approved on November $, 1975. It has been supplement&- subsequent to that time olil four occasions: February 3, 1976, May 11, 1976, November 16t 1976 and August 3, 1978. As a result of the negotiation$ between the May Company and the City in regards to the addition of a Broadway Store to the Center, it has been determined that a Fifth Supplement to the Basic Agreement is in order. A memorandum from the City Attorney, discussing the matters contained in the Fifth Supplement, is attached. The Fifth Supplement, and the exhibits thereto, is also attached. It is recommended that the City Council approve the Fifth Supplement and a resolution in that regard is attached. - - ,I 1. Fifth Supplement to the Plaza Camino Real Expansion Agreement. 2. City Attorney's memorandum to the Mayor and City Council dated November 9, 197$. 3. Map of Shopping Center showing Broadway land exchange. 4. Resolution No. .5b2 4. Recommendation If the City Council concurs, your action is to adopt Resolution No. s-/OS./ . Council action: 11-21-78 Council adopted Resolut!on 5624, approving a Fifth Supplement amending the agreement between the City, the Parking Authority and Plaza Camino Real for expansion of Plaza Camino Real Regional Shopping Center. - 'I FIFTH SUPPLEMETZT TO AGREEMENT FOR EXPANSION OF PLAZA CAMINO REAL MGIONAL SHOPPIPIG CENTER THIS AGREEMENT is made this day of , 19 I by and between the CITY OF CARLSBAD, California (the "City"), the PARKING AUTHORITY of the City of Carlsbad (the "Parking Authority") , and PLAZA CAMINO REAL, a California limited partnership ("Developer"). W I T N E S S E T H WHEREAS, the parties to this Agreement have heretofore entered into an Agreement, dated November 5, 1975, for expansion of the Plaza Camino Real Shopping Center. Said Agreement has been amended by a First Supplement thereto, dated February 3, 1976, a Second Snpglement thereto. dated May 11, 1976; a Third Supplement thereto, dated November 16, 1976, and a Fourth Supplement thereto, dated August 3, 1978. The parties wish to further arnend said Agreement in thc manner hereinafter $et forth. NOW, TIIEREPORE, the parties hereto agree as follows: 1. Developer wishes to further expand the Plaza Camino Real Regional Shopping Center by the addition of a Broadway Department Store. The parties agree the Developer has satisfied the Site Plan requirements of Section 1.2 and the Precise Plan of Development requirements of Section 1.4 of the Agreement, dated November 5, 1975, as supplemented (hereinafter "Basic Agreement") as thev apply to the Broadway Department Store. , 2. The Broadway Department Store as proposed will be located on land that is presently a part of the existing public parking area. Before construction is commenced on the Broadway Department Store, all the necessary steps must have been taken to accomplish the conveyance of such land to Developer. As a condition precedent to such conveyance, Developer shall convey to the Parking Authority by grant deed equivalent acreage elsewhere in the center. Said acreage shall be at least equal in area to the land conveyed by the Parking Authority, it shall be improved by Developer in the same manner as the land conveyed by the Parking Authority and shall be of at least equal value and utility for parking purposes. The parties agree that the documents necessary to effect the Broadway land ~XC~CCJ:~, I-n-1~11v.dFnc~ bllf not. limited to the Exchange Agrcemer,t and Escrow Instructions, Grant Deeds, Amendment to Parking Authority Lease, ILTendment to Parking Lot Operating Agreement and the May Stores Shopping Center, Inc. Guarantee shall be substantially in the form used by the parties to accomplish the land exchange for . . the Bullock's Department Store which was accomplished pursuant to Section 2.8 of the Basic Agreement. 3. The addition of the Broadway Department Store to the Plaza Camino Real Shopping Center will create the need for additional public parking in the area. In order to provide that parking, the City has agreed with Oceanside to lease a public parking area to be 'Constructed in Oceanside (the "Oceanside Parking Area") which can be available to serve the Plaza Camino Real area. A copy of 2. said Lease is attached hereto as Exhibit G, and made a part hereof. Developer agrees, commencing with the execution of said Lease, to assume, with the exception of the obligation to pay rent, all of the City's obligations to Oceanside under said lease. Upon execution of said Lease, City and Developer shall immediately enter into an Agreement, in the form attached to this Fifth Supplement as Exhibit H, whereby Developer will assume responsiaility for the management, operation and maintenance of the Oceanside Parking Area in accordance with the provisions of the Plaza Camino Real Public Parking Lot Operating Agreement, which is attached to the Fourth Supplement as Exhibit F. Developer will, for the duration of said Lease, and, if the City exercises its option to buy, for the duration of said Agreements, manage, operate and maintain the Oceanside Parking Area at no cost to the City. 4. The Oceanside Parking Area will be conveyed by Developer to Oceanside. The Grant Deed from Developer to Oceanside for the 0ceansj.de Parking Area shall be in the form attached to this Fifth Supplement as Exhibit I. At the time of conveyance by Developer to Oceanside, title will be subject to the matters listed in Exhibit J to this Fifth Supplement. 5. The reference in Paragraph 2(f) of Exhibit D, attached to the Fourth Supplement to the Agreement dated November 5, 1975, to, ','Easements set forth in Memorandum of Lease between Developer and Carter" shall be deemed to include the same easements contained in any deed by Developer to Carter for the Broadway Department Store. 3. /I ATTEST : Aletha L. Rautenkranz City Clerk ATTEST : CITY OF CARLSBAD By: RONALD C. PACKARD, Mayor Trm PARKING AUTHORITY OF THE OF CARLSBAD, CALIFORNIA CITY BV : ATTEST : PLAZA CAMINO REAL, a limited partnership By: The May Stores Shopping Centers, Inc., its General Partner ' APPROVED AS TO FORM: VINCENT F. BIONDO, JR. City Attorney 4. A" I. ” . - \. 4 1 -.* .. .. LEASE THIS LEASE is made this day of I r. 1978, by and between the City of Oceanside, a California Municipal Corporation, hereinafter referred’to as “Oceanside,” and the City of Carlsbad, a California Municipal Corporation, hereinafter ref erred to as “Carlsbad. I‘ *\ 4 W I T’N E S S E T H WHEREAS, Oceanside owns a public parkj-ng lot which is in excess of its needs; said lot is more particularly described in Exhibit I, attached hereto and made a part’ hereof; and . WHEREAS, Carlr-bad has determined that there is a necessity for more public psi-kii-4 ia “Le ci”-- LY cf C’arZsS&! kc serve the area around the Plaza Camino Real Regional Shopping Center; and WKEREAS, the parties have reache4 agreement on mutually .beneficial terms whereby Oceanside will lease their public parking. lot to Carlsbad; . .. NOH, TIU2FtEFOREI in consideration of the mutual promises and agreements herein contained, the parties hereto agree as ‘follows : SECTION 1: Lease of Public Parking Area, Oceanside hereby leases to Carlsbad and Carlsbad hereby leases from Occanside,the ,real property and improvements located (EXHIBIT “G” TO FIFTH SUPPLEMENT) a in the City Of Oceanside and more particulL,.ly described in Exhibit 1. SECTION 2: Term- -- The term of the Lease shali commence on the day , of r 19 - The term of this Lease shall be fifty (50) years and shall expire at midnight of the last day of the ' fiftieth (50th) year. ' I SECTION 3: Rent. Carlsbad agrees to pay rental in the amount of Seven Hundred Thousand and Forty Dollars ($700,040) for the possession - and use of the leasehold as provided herein for the fifty (50) .. year term as follows: .. .. . * .Carlsbad shall pay to Oceanside without deduction, .setoff, prior notice, or demand, the sum of Seventy -. - Thousxiid GC~~ZXS ($7C CCO) 2~~122ll~ f~r each ~5: the first ten (10) years of this Lease and One Dollar ' ($1.00) annually for each of the remaining forty (40) years of the Lease, The rent shall be due and payable on the last day of each year of this Lease. .SECTION 4: Rent Adjustment. As of the date of this Lease state law provides that Carlsbad will receive one cent of the six cent state sales tax to be collected on taxable sales at the Broadway Department c Store at Plaza Camino Real in Carlsbad. The rental payment in - Section 3 is based upon an assumption that Carlsbad will continue 7 -. c * * to receive said one cent through the first cen (10) years . of this Lease. of sales tax to cities'.is changed at any time during the first ten (10) years of this Lease so that Carlsbad receives less than If the state law governing the distribution said one cent, and if any portion of said one cent is distributed to cities on a basis other than situs of sale, then the rental payment due under Section 3 of this Lease shall be reduced to One Dollar ($1.00) per year effective when said change in state law is effective. . \ .. During the first ten (10) years of this'Leasc, if state legislation alters the manner in which state sal-es tax revenues ' are distributed to local entities in sone manner other than described above in this section, and .if such al.teration reduces the sales tax revenues distributed.to the City of Carlsbad ' ..A relating to sales occurring at .the Plaza Canin:, Real SEiiipping Center, and if such alteration results in the receipt Oceanside of a portion of said revenues, then the rental described in Section 3 of this Lease shall be subject to renegotiation upon * the request of the City of Carlsbad so as to provide for a reduction of said rent consistent with the reduced tax revenues in Carlsbad and the increased tax'revenues to. Oceanside, SECTION 5: Option. ' The City of Carlsbad shall have the option to purchase - the leasehold at any time for One Dollar ($1.00) , on the conditi.on that the City of Carlsbad shill have paid the rental required by - 3. Sections 3 and 4 of this Lease. The parties hereto acknowledge and agree that the nominal amount of the purchase price is based on the fact that the payments required of Carlsbad by this Agreement represent both rental and approximate fair market value. notice of Carlsbad's intent to exercise the option. Oceanside The option may be exercised by giving Oceanside written shall have sixty (60) days within which to de.liver title to the \ subject property. .. "SECTION 6: Maintenance and Operation. Carlsbad shall maintain during the term of the Lease hereunder the parking area in good order, condition, and repair, and shall be responsible for all costs and expenses of operating same as a public parking facility. Oceanside agrees to keep the , - leasehold free and clear of all liens, charges arid encwiir&nces. The estate conveyed hereby is subject to the right of Plaza Camino Real to maintain, manage and operate the parking facilities for the public purposes for which the same were constructed and conveyed to Oceanside to wit: for use by the general public as an off-street parking lot for motor vehicles. Immediately upon execution of this Lease, Carlsbad shall enter into an agreement with Plaza Camino Real whereby the subject property will be made subject to the Plaza Camino Real Public Parking Lot Operating Agree- ment between City of Carlsbad, Parking Authority of City of Carlsbad and Developer, Exhibit F to the Fourth Supplement to Agreement for .. Expansion of Plaza Camino Real Regional Shopping Center, whereby Plaza Camino Real. operaks the public parking areas owned by the Carlsbad Parking Authority. In addition, the agreement shall provide for the assumption by Plaza Camino Real of Carlsbad's obligations under this section to operate and maintain the public parking area. SECTION 7 : Indemnity. Carlsbad shall indemnify Oceanside and hold Oceanside harmless from and against any and all actions, claims, demands, costs, damages, penalties, expenses or liabilities of any kind whatsoever by reason of the maintenance or operation of the parking lot or by reason of the use thereof. This indemnifi- catic-n shall'include reasonable attorneys' fees which Oceanside may expend in connection with any of the foregoing. SECTION 8: Insurance. the parking lot written by financially responsible insurance company(s), authorized to do business in the State of California and with limits of liability of at least a combined single limit of Two Million Dollars ($2,000,000) per occurrence. All such insurance shall na.-ne Oceanside as additional insured and shall be maintained in full force and effect by Carlsbad for the term of this' Lease. Should the-parking facilities be damaged by fire, lightning, vandalism, malicious mischief or any other casualty, Carlsbad shall cause the repair of such damage with all reason- ' - able dispatch. Carlsbad shall procure and maintain or cause to be procured and maintained in full force ani! effect at all times 5. .. during the term against loss or of this Lease, a policy OK policies of insurance damage.to the improvements of the parking lot, xesnlting from fire, lightning, vandalism, malicious mischief, and such other perils as are ordinarily included in "fire and extended coverage insurance,'' providing coverage at one hundred percent (100%) of the replacement value of said improvements written by financially responsible insurance conpany (SI authorized to do business in the State of California. Oceanside shall be named as an additional insured under said policy of insurance. Proceeds of the said insurance shall be applied toward the cost of repairs or replacements of said improvements. Carlsbad shall cause policies of insurance or certificates thereof to be provided to Oceanside to evidence Carlsbad's compliance with the requirements of this section and providing that the coverage under such policies shall not be reduced or. cancelled except after -thirty (30) days written notice to ' Oceanside. The insurance required under this section may be obtained through blanket policies or contracts which may cover other properties or liabilities, provided that as respects the insurance referred to and allocated in such parking lot an amount required with respect in this section; there is separately stated policies or contracts with respect to the .. at least equal to the amount of insurance to the parking lot as if the same were so insured under separate policies or contracts of insurance. 6. .. SECTION 9: Purpose of Use. Carlsbad shall be obligated to manage, operate-and maintain the parking area leased so as to afford to the general public an off-street public parking lot for motor vehicles . without charge in accord with the Public Parking Law of 1949, SECTION 10: Assiqnment and Sublease, This lease and any interest herein shall not at any time, without the prior written consent of Oceanside, be mortgaged, pleadged, assigned, subleased or transferred by Carlsbad. .. SECTION 11: Assumption of Obliqations. q. Except for payment of rent as provided in Section 3 above, Carlsbad may satis*. all or any part of its obligations . .. to Oceanside under this Lease by furnishing Oceansitie xi% ij, CGF~- of an agreement between Carlsbad and Plaza Carnino Real whereby Plaza Cmino Real assumes responsibility for such obligations. SECTLON 12: Surrender of Leasehold. - . . . Upon the expiration of this Lease and in the absence of exercise of any option to buy, Carlsbad agrees that they shall surrender to Oceanside all property' then under lease 'hereunder, together with any improvements thereon, in good order and.con- dition and in a state of repair that- is consistent with prudent use and conscientious maintenance except for reasonable wear and tear. c .. . . I , 4 SECTION 13: Right of Entry. Oceanside and 'its designated representative shall have the right to enter upon the leasehold during reasonable business hours and in emergencies at all times, for any purpose rklated to Oceanside's rights or obligations under this agreement, or for any other lawful purpose. SECTION 14: Liens. .. When Oceanside leases the property to Carlsbad it shall be free of all liens and encumbrances. Carlsbad shall keep the .. parking lot free and clear of all material liens or mechanics' liens or any other similar liens for repair, maintenance and operation, services, labor or materials which may arise from any work done on thp_ parkhg lot by or at the direction of Carlsbad. .. Carlsbad may in good faith contest the validity of any such lien and shall at its expense defend itself and Oceanside against the - same and pay any final judgment which may be rendered thereon. If CarZsbad elects to contest any such lien, they shall record a surety bond in accordance with California Civil Code Section 3113 releasing the parking lot from such lien within ten (10) days after it Carlsbad becomes aware of the recordation of any such lien or shall deliver the aforementioned bond to Oceanside. SECTION 15: Taxes. The parties take the position that the leasehold - constitutes public property free and exempt from all taxation; however, CarlsbaG and Oceanside agree to jointly take wh3tcver 8. 0. .. .A I .* * steps-may be necessary to contest any proposed tax or assessment, or to recover any tax or assessment: paid, 7 SECTION 16: Quiet Enjoyment. The parties hereto mutually covenant and agree that Carlsbad, by keeping and performing the covenants and agreements herein contained, shall at all times during the term, peaceably and quietly have, hold, and enjoy the leased property withaut suit, trouble or hindrance' from Oceanside. SECTION 17 : ' Applicable Law, This Lease shall be governed exclusively by the provisions hereof arid by.the laws of the State of California, subject to the waivers exclusions, and provisions herein contained. . SECTION 18: Notices. I. All notices, statements, demands, requests, consents, .. .. approvals, authorizations, offers, agreementsF appointments, or designations hereunder.by either party to the other shall be in,wri.ting and shall be sufficiently give11 and served upon khe other party if sent United States registered mail, return' receipt requested, postage prepaid and addressed as follows: City of Oceanside City Manager : 321 North Nevada Street Oceanside, CA 92054 City of Carlsbad City Manager 1200 Elm Avenue. ' Carlsbad, CA 92008 9. c SECTION 19 : tQaivcr. Tfie waiver by,Oceanside of any breach by Carlsbad of any tern, covenant, or condition hereof shall not operate as a waiver or any subsequent breach of the same or any other term, coyenant, or condition hereof. SECTION 20: Enforcement. If Carlsbad shall at any time fail. 07 refuse to pay obligation or perform work ox furnish any se'rvices required on their part under this Lease, Oceanside may prosecute .. any proceeding at law or in equity to secure by way of specific performance or otherwise Carlsbad's obligations. SECTION 21: 'Validity, .. any proceeding at law or in equity to secure by way of specific performance or otherwise Carlsbad's obligations. SECTION 21: 'Validity, If any one or rnore.of the terms, provisions; promises, . covenants, or conditions of this Lease shall to any exi&'L he adjudged invalid, unenforceable, void, or voidable, or unforce- able by Oceanside, or if for any reason it.is held by such a Court that the covenants and conditions of Carlsbad hereunder, includj-ng the covenants to pay rent hereunder, is unenforceable for the full term hereunder, then and in such event for and in consideration of the right of Carlsbad to possess, occupy, =id use the leasehold, which right in such event is hereby granted, then this Lease shall thcreuponbecome., and shall be deemed to be, a lease from year to year under which the annual rents herein specified shall be paid by Carlsbad. - WITNESS have Oceanside and Carlsbad signed IN this ~eise as d+y and first above of the written OCEANSIDE year I CITY OF ATTEST : .. .. IFU3NE D. DUEKREN, City Clerk PAUL G. GRA€JAM, Mayor ? \ APPROVED AS TO FORM: .Ronald E. Null, City Attorney CITY OF ATTEST : CARISBAD c .. . - ALETHA L. RAUTENKRANZ, City Clerk RONALD C. PACKARD, Mayor , APPROVED .AS TO FOR?:.I: . .. Vincent F, Biando, Jr. City Attorney 11. EXHIUIT 1 to OceansiddCarlsbad LEASF-' ated LEGAL DESCRIPTION A parcel of land situated in the City of Oceanside, County of San Diego, State of California, being a portion of the northeast quarter of Section 31, Township 11 south, Range 4 West described as follows: Beginning at the southeast corner of the north half of the northeast quarter of Section 31; thence along the south line of said north half, north 89'4211911 west, 325.70 feet to the true point of beginning; thence north 89'4Z119" west, 1150.70 feet; thence leaving said .soutK line, north 46'3615311 east, 143.87 feet; thence north, 312.85 feet; thence north 88'0011811 east, 543.32 feet; thence north 89'41*2871 east, 500.04 feet; thence south O'24'1lt1 east, 43g422 feet. t.0 t!i? trii~ pizt cf be5ii:ning. .. L AGREEMENT REGARDING MANAGEMENT, OPERATION AND MAINTENANCE OF PLAZA CAMINO REAL SHOPPING CENTEH PARKING AREA IN OCEANSIDE THIS AGREEMENT is made as of by and between the CITY OF CARLSBAD, a municipal corporation of the State of California (I1Cityt1), the PARKING AUTHORITY OF THE CITY OF CARLSBAD, a body corporate and politic of the State of California ("Parking Authority") and PLAZA CAMINO REAL, a limited partnership, organized under the laws of the State of California (llOperatorll) with reference to the following facts and circum- stances : A. City, Parking Authority and Operator have entered into an agreement entitled "The Plaza Camino Real Public Parking Lot Operating Agreement1* (the "Public Parking Operating Agreement'!), whereby Operator has agreed to manage, operate and maintain a certain public parking lot leased by the Parking Authority to the City, as expanded pursuant to that certain agreement among City, Parking Authority and Operator entitled "Agreement for Expansion of Plaza Camino Real Shopping Center", dated November 5, 1975, as amended (the llExpansion Agreement1?). Said public parking lot serves the Plaza Camino Real Regional Shopping Center area. B. To provide additional parking to serve the Plaza Camino Real area, City has leased from the City of Oceanside a public parking area in Oceanside (the llOceanside Parking Area") pursuant to a lease with option to buy. Said lease (the llOceanside-Carlsbad Lease") is in the form attached as Exhibit G to the Fifth Supplement (EXHIBIT "H" TO FIFTH SUPPLEMENT) to the Expansion Agreement. Pursuant to the Fifth Supplement to the Expansion Agreement, Operator has agreed to assume Carlsbad's obligations under said Lease with the exception of the obligation to pay rent. Operator wishes to also assume responsibility for the management, operation and mai.ntenance of said parking area in Oceanside in accordance with the provisions of the Public Parking Operating Agreement. NOW, THEREFORE, the Parties agree as follows: Operator agrees to manage, operate and maintain the Oceanside Parking Area for the full term of the Oceanside-Carlsbad Lease. With the exception of the obligation to pay rent, Operator shall assume City's obligations under the Oceanside-Carlsbad Lease for the Oceanside Parking Area. In the event that City buys the Oceanside Parkjng Area from the City of Oceanside in accordance with the option contained in the Oceanside-Carlsbad Lease, Operator agrees to continue to manage, operate and maintain the Oceans.i.de Parlring Area in accordance wit11 the Public Parking Operating Agreement for the remainder of the term thereof. Insofar as the Oceanside Parking Area is concerned, the references in Section 2 of the Public Parking Operating Agreement to the parking lot shall be deemed to include the Oceanside Parking Area and the references in Section 5 of said Agreement to Leases shall be deemed to refer to the Oceanside-Carlsbad Lease and the references to certain Grant Deeds shall be deemed to refer to the Grant Deed dated I 19 I recorded on I 19 as Documcmt No. Official Records of San nicqo 2. County by means of which the City of Oceanside, as lessor of the Oceanside-Carlsbad Lease, acquired fee title to the Gceanside Parking Area. IN WITNESS WHEREOF, City, Parking Authority and Operator have caused this agreement to be executed and attested by their propel: officers thereunto duly authorized, and their official seals to be hereto affixed as of the date first above written. ATTEST: CITY OF CARLSBAD By : - ATTEST: PARKING AUTHORITY OF THE CITY OF CARLSBAD By : PLAZA CAMINO REAL, a limited partnership By: The May Stores Shopping Centers, Inc. By : By : .APPROVED AS TO FORM: . Vincent F. Biondo, Jr. City Attorney 3, /- I GRANT DEED The undersigned, PLAZA CAMINO REAL, a limited partnership organized and existing under the laws of the State of California, the general partner cf whicll is The Lay Stores Shopping Centers, Inc., (llGrantorlf), hereby grants to CITY OF OCEANSIDE, a municipal corporation, (llGranteellfl), the following described real property in the State of California, County of San Diego, City of Oceanside, more particularly described as follows: A parcel of land situated in ttie City of Oceanside, County of San Diego, State of California, being a portion of the northeast quarter of Section 31, Township 11 south, Range 4 West described as follows: Beginning at the southeast corner of the north half of the northeast quarter of Section 31; thence along the south line of said north half, north R9842-119f1 west, 325.70 feet to the true point of beginning; thence north 89'4211911 west, 1150.70 feet; thence leaving said soutk; line, north 46'36'53" east, 143.87 feet; thence north, 312.85 feet; thence north b~8'00118'1 east, 543.32 feet; thence rlorth 89'41t2811 east, 500-04 feet; thence south 0'24'11" east, 439.22 feet to the true po;nt of beginni-ng. RESERVING UNTO GRANTOR, its successors and assigns, and to and for the benefit of each and every portion of Lots 2, 3, 4, 5, 6, 10, 11, 12, 13, 14, 15, 17, 18, 19, 20, 23, 24, 25, 28 and 29 of Carlsbad Tra-ct 76-18 according to Map No. 8956 filed in the Office of the County Recorder of San Diego County, California on August 11, 1978 (hereinafter referred to as the "benefited lotsf1), easetiients on, under and over the land conveyed hereby as follows: (a> Easements (hereinafter referred to as flinstallation easeiiientstl 1 for: (EXHIBIT "3:" TO THE FIFTH SUPPLEMENT 1Q/20/7 8 -1- --- I (i) The installation and Iiiaintenance of utilities as may be necessary or appropriate to provide utility service to the benefited lots. Grantor shall have the right to grant to utility companies the appropriate easements for the install-ation and maintenance of utilities as may be necessary to provide utility service to such lots. All such utilities shall be underground, except with respect to those facilities uhich are norrnally aboveground in connection with underground utility systems. The term llutilitieslf as.used herein, includes, but is not lin2te4 t.0 wrks, lir:es, 2nd str~z- tures necessary to provide the following products or. services to said benefited lots: water, sewers, drainage, electricity, gas, telephone and cable or closed circuit television. (ii) The purposes of erecting, constructing, maintaining and operating signs to provide proper advertisement of and directions for business establishments located on the benefited lots. (b) Easements (hereinafter referred to as llc~rnn~~n use" easeriients) for the purpose of ingress and egress by any pedestrians, automobiles, trucks and any other vehicles to and from the benefited lots, or any I 10/20/'18 -2- .. portion thereof by traversing the land conveyed hereby in any direction,to or from any point on the common *. boundary line of the land conveyed hereby and the aforementioned Carlsbad Tract CT '7618, and the parking of such vehicles, including, but not limited to, an easement for access to a public street to wit: Hayinar Drive; provided, however, that said common use easenients shall not be exercised so as to interfere with the use of the land conveyed hereby for public parking lot purposes and said contilion use easements shall be exercised consistent with the configuration of said public parking lot. The easement rights reserved hereby include the power on the part of Grantor, its successors and assigns, and the other owners of the benefited' lots, their successors and assigns, to grant easements and licenses for the use of said easenient rights to others, provided such grants are solely for the benefit of the benefited lots. The easement rights reserved hereby and any licenses to be granted thereunder are subject to the following condition: The rights of usage under the common use easenientS shall be nonexclusive, and in coirinion with the rights of usage on the part of each owner of or licensee under such rights and with all mernbers of the public having the right or privilege for like usage of the Parking Facilities under the terrils and provisions of that certain Lease Agreeinent, 10/2U/78 -3- , (hereinafter referred - dated to ‘as the llLeas.erl), by and between Grantee and the City of Carlsbad, a municipal corporation. The rights under the easements hereby reserved shall be appurtenant to the benefited lots and any portion thereof. A. The conveyance hereby made is also subject to the . following: 1. The Lease covering the land conveyed hereby executed by Grantee herein as Lessor to the City of Carlsbad, as Lessee. Said lease contains an option to buy in favor of the City . of Carlsbad. If the Option is exercised, the conveyance to the City of Carlsbad will be to Grantee. Upon the recordation of’said conveyance to the City of Carlsbad, the Grantee (City 01’ Oceanside) will be released froni any liability under this Grant Deed occuring after the recordation of the conveyance. 2. The easements, rights-of-way, conditions, covenants, restrictions, reservations, and similar inatters of record on the date of delivery of this Grant Deed to Grantee. B. The conveyance hereby made is also subject to, and Grantee, by its acceptance of this Deed, for itself, its successors and assigns, hereby makes and agrees to the following covenants, cond it ions, and restr ic t ion s, n amel y : ,.-. --- 1. The land conveyed hereby shall be held in trust by Grantee, and its successors, and dedicated perpetually to public use as a municipal parking lot available to the public. Grantee, and its successors and assigns, shall operate the municipal parking lot without charge to the public unless such charge to the public is required by another governmental entity other than Grantee or the City of Carlsbad, or any agency or instrunientality thereof, as a part of a parking rnanageri~ent program, transportation control plm, or other government regulation of parking and such charge cannot be legally absorbed by Grantee or its successors and assigns. Said parking lot shall be maintained in good condition with all necessary repairs and re- 1 placements and shall be operated by Grantee in sucn a manner as to provide internal traffic routing and control so as to maintain proper flow of traffic around and wit'hin said parking lot and to provide at all tinies access for ingress and egress to and from the benefited lots including, but not limited to, pedestrians, autoniobiles and co~timercial vehicles engaged in making deliveries to and pickups froin establishlnents on the bencfit- ed lots and unloading opertions in connection therewith. Said parking lot shall be kept open --. A for public parking on all days, including holidays, and at all hours except when there is no reason- able need in the benefited lots for parking in said parking lot or when and insofar as reasonably necessary for repairs or maintenance. No improve- ments, structures, buildings, or facili,ties shall be placed thereon or therein which obstruct, interfere with or restrict the use of the land conveyed hereby as a rnunicipal parking lot, except for decorative plantings, lighting facilities and other improvements incidental to the use of said land as rnunicipal parking lot. As used herein? the tern 'Ituctal takir?g" re'fers to a taking, through or in lieu of eminent domain proceedings, of eighty percent (80%) or more of the total area of the parking lo'; and the term '!partial taking" refers to a taking through such proceedings of any lesser area. (a) In the e,vent of a to'tal taking, the com- pensation awarded for each taking shall be apportioned between Grantor and Grantee, and theirp respecive successors and assigns, as their respective interests. may be deter- ' mined by the Court. (b) In the event of a partial'taking, Grantee shall cause the construction, upon the -6 - remaining portion of the land conveyed hereby, of a niulti-level parking structure or structures, or other replacement parking facilities having capacity sufficient to compensate, to the extent reasonably possible, in light of such physical litnitations such partial taking iriiposes, for the reduction in parking capacity caused by such partial taking if and to the extent that proceeds apportioned to it as a result of such taking are available. Grantor may, at its election, contribute toward the cost of such replacement parking facilities. That' portion of any such award apportioned to Grantor as a result of such taking shall be retained by the Grantor. 2. If at any tihie or times Grantee fails to carry out, or to cause to be carried out, the maintenance and operation of the land conveyed hereby as a public parking lot in accordance with paragraph 1 of this Section B, or the construction provided for therein, if required, Grantor or its successors or assigns, shall have the right at its election, in addition to and without prejudice to any other remedies, ininiediately to' assume and carry out the maintenance and operation of and construction on said land 11/3/78 -7 - as a public parking lot, provided that Grantor, or its successors or assigns upon assuming such maintenance and operation, shall pay the cost thereof, until such tinie as Grantee assunies and is ready to carry out, or causes another person, association, or corporation ready and able to do so, td assume and carry out the maintenance and operation of said land as a public park2ng lot in accordance with paragraph 1 of this Section B. 3. Should the parking facilities be damaged by fire, lightning, vandalism, i~~alicious mischief or any Grantee shall procure arid maintain or cause to be procured and maintained in full force and effect at all times, a policy or policies of insurance against loss or damage to the improve- ments of the parking facilities, resulting from fire, lightning, vandalisr~i, malicious mischief and such other perils as are ordinarily included in "fire and extended coverage insurance", providing coverage at one hundred percent (100%) of the replacement value of said improverrients written by a financially responsible insurance cotiipany(s) authorized to do business in the State -8- of Caiif'ornia. Anyone having possession of any or all of said parking facilities under a lease, license or other siinilar docurrient, or anyone to 'whom all or any part of said parking facilities are assigned, pledged or placed in trust as security for any loan for the cost of said im- ,proveinents shall be named as additional insured under such policies of insurance. The insurance obligations of Grantee pursuant to this paragraph are fulfilled if Grantee causes the procurement arid ioaintenance of such insurance and Grantee or its successors and assigns are named as additional insured under said policy of insurance. If the improvements are to be repaired or rebuilt all proceeds of insurance with respect to loss or damage shall be applied toward the cost of said repair or rebuilding. 4. Enforceiilent of the conditions, restrictions, reservations and covenant's herein provided may be by any legally available remedies. Such remedies shall include, but not be litoited to, injunction or spec i f i c per forniance . 5. This grant is niade on the express understanding that the Lease constitutes valid and binding obligations respectively on the part of Grantee and the Lessee therein named, and should the 11/3/78 -9- contrary be established at any tinre during the term of the Lease pursuant to entry of a final judgriient of court of competent jurisdiction, the entry of such judgment shall constitute a condition subsequent to the conveyance hereby made pursuant to which all right, title and interest in and to the land conveyed hereby shall revert to and revest in Grantor in the same manner as if this conveyance had never been made. 6. In the,event that Grantee or its SUCC~SSO~S arid , assigns fail to perform and fulfull the covenants, condi.tions and restrictions set forth in Paragraphs 1 through 5 inclusive, €or ‘a period of .ninety (901 days after written notice from Grantor or its ‘successors or assigns, Grantor or its successors or assigns shall have the right, at its election, in addition to and without prejudice to any other remedies, inimediately to terminate the estate herein granted for condition broken by reentering the land conveyed hereby pursuant to California Civil %ode Section 1109 or any successor statute. 7. Each and all of the covenants, conditions and restrictions herein set forth shall be deemed and construed to be continuing, arid the extinquish- ment of any right of entry or reversion for any breach shall not impair or affect any of said 11/3/78 -10- 8. I 11/3/78 covenants, conditions or restrictions so far as any future or other breach is concerned. No wbiver of breach of any of the covenants, conditions and restrictions herein contained shall be construed to be a waiver of' any ottier breach of the same or other covenants, conditions or restrictions nor shall failure to enforce any one of such covenants, conditions or restrictions either by forfeiture or otherwise, be construed as a waiver of any other covenants, conditions or restrictions: provided, however, that no such breach shzll defeat the lien or encumbrance affecting the land conveyed hereby and made in good faith to secure indebtedness incurred in improving said' land for the uses and purposes aforesaid. The covenants, conditions and restrictions made by Grantee hereunder are hereby expressed to be for the benefit of the benefited lots and are iuade expressly by Grantee to bind its successors and assigns in favor of Grantor and the owners of the benefited lots and the respective succes- sors and assigns of Grantor and said owners, and are expressly intended to run with such land and each portion thereof. -11- PLAZA CAMINO REAL, a limited partnership By: The Nay Stores Shoppi~ig Centers, Inc. Sole General Partner -- BY GRANTOR STATE OF CALIFORNIA COUNTY OF LOS ANGELES) ) ss. On , 1978, before me, the undersigned, a , known to me to be the a3 Notary Public in and for said State, personally appeared SHOPPING CENTEHS, INC. , the-GFporation that executed the within instrument on behalf of said corporation, said corporation being known to me to be one of the partners of PLAZA CAMItdO REAL, a limited partnership, the partnership that executed the within instrument, and acknowledged to me that such corporation executed the same as such partner and that such partnership executed the same. , known-to me tobeofTHE MAY STORES -I_-__-_- iZS%ruiiiC>k and ~ZGST) to iiie tu be iiic pei-borls wiiu execuied Liie wiiiiiri WITNESS iny hand and official seai. 'Notary Public -12- .. c Matters to which the parking area to be conveyed to the City of Oceanside will be subject: 1, The fact that ownership of said land does not include any rights of ingress and egress to or from the freeway adjacent thereto, said rights having beeii relinquished to the State of California by instrunlent, recorded January 14, 1954 in book 5112, page 294 of official records, Recorder's File No. 5770. 2. An easement affecting the portion of said land and for the purposes stated herein, and incidental purposes in favor of City of Oceanside for sewer line recorded April 27, 1960, Recorder's File No. 86955, affects the following: A strip of land 10 feet in width lying in the northeast quarter of the northeast quarter of Section 31, towriship 11 south, range 4 west, San Bernardino meridian, in the City of Ocean- side, in the County of Sari Diego, State of Caiifor-nia, tne center line of which 1s described as follows: Beginning at the southeast corner of the northeast quarter of the northeast quarter, section 31, township 11 south, range 4 west, San Bernardino meridian, thence north 89'47'50" west, 325.76 feet; thence north 0'30'2011 -east 356.31 feet to the point of beginning;- thence south 89'41'28" west, 54.13 feet; thence north 0'18'32'' west to the south right of way line, Vista-Kay, as shown on State Highway Plan No. XI-SU-196-OCN. 3. The fact that the ownership of said land does not include any rights of ingress and egress to or from the freeway adjacent thereto, said riglits having been relinquished to the State of California by instrument, recqrded August 23, 1962, Recorder's File No. 145111. 4. An easement affecting the portion of said land and for the purposes stated herein, and incidental purposes in favor of Vista'Sanitation District and City of Carlsbad for right of way to install, construct, reconstruct, operate, replace, repair, maintain arid use a sewer pipeline, togettier with its necessary .(EXHIBIT "J" TO FIFTH SUPPLEMENT) fixtures and appurtenances, together with the right of ingress File No. 75-310363, affects: . thereto arid egress therefrom, recorded Ilovember 6, 1975, Recorder's A 10 foot wide easerrient along and across a portion of the north half of the north half of section 31, township 11 south, range 4 west, Sari Bernardino meridian, in the City of Oceanside, in the County of San Diego, State of California, according to United States Government survey approved April 5, 1881, said easement being bounded and described as follows: The south 10 feet of said north half of the north half of said section 31; the easterly termination of said 10 foot strip being the westerly line of the land described in Parcel 2 of deed, to the City of Oceanside, recorded April 20, 1959 as Documer~t No. 77257 in book '(713, page 173, official records 01' said County; the westerly termination of said 10 foot strip being 40 feet west of and parallel with the westerly line of that parcel of land described as the north 45.00 feet of the west 100.00 feet of the east 810.00 feet of Lot 32 of Hosp Eucalyptus Forest tract nuiliber 1, said right of way recorded October 9, 1964 as Document No. 184918 in official records of said County. par.2r-l beiyig .1,..scri'u.ec', i:: g-.;:;i cf ez,ser,;c;t snd 5. Covenants and easements as contained in as Agreerrient recorded April 21, 1966, Recorder's File No. 66916. Reference Is 1nade to said docunient for full particulars. Said covenants, conditions and restrictions have been modified by an instrument recorded July 28, 1969, Recorder's File No. 138915. Note: By an instrutiient recorded, August 15, 1978, Recorder!s File No. 78-346433, said Agreement was amended. 6. An Agreement to which reference is hereby wade fo,r full particulars dated August 15, 1978 by arid between Plaza Camino Real, a California litnited partnership, The May Department Stores Company, a New York corporation, J. C. Penney Company, Inc., a Delaware corporation, Sears, Roebuck and Co., a New York corpor- ation, Federated Department Stores, Inc., a Delaware corporation arid Carter I-fawley ]]ale Stores, Inc., a California corporation rW.3arding Amended and Restated Construction, Operation and Recip- ,* -2- rocal Easement Agreement recorded August 15, 1978 as Recorder's File No. 78-346427. 7. Easements set forth in Memorandum of Lease between Plaza Camino Real, a California limited partnership and Carter Hawley Hale Stores, Inc., a California corporation, recorded August 15, 1978 as Recorder's File No. 346425 and the same easements to be contained in a deed from Plaza Caniino Real to Carter Hawley Hale Stores, Inc. 8. Easements for utilities for the expansion of the Plaza Carnino Real Shopping center. 9. Any other matters approved by the City of Oceanside, which approval shall not be unreasonably withheld. -3- 1 MEMORANDUM DATE : TO : FROM: SUBJECT : November 9, 1978 Mayor and City Council City Attorney FIFTH SUPPLEMENT TO THE BASIC AGREEMENT FOR THE EXPANSION OF THE PLAZA CAP4INO SHOPPING CENTER .-- The negotiations which have been ongoing for sometime in regards to the addition of a Broadway Store to the Plaza Camino Real Regional Shopping Center have been completed. In order to carry the agreements reached in those negoti- ations into effect, it is necessary to make a Fifth Supplement to the Basic Agreement for the expansion of the Center. The purpose of this memorandum is to explain the contents of the Fifth Supplement. The Basic Agreement requires Council approval of a Site Plan and Precise Plan for the Shopping Center. Section 1 of the Agreement provides that the plans approved to date by the Council satisfy that requirement for the Broadway Store. The Basic Agreement contains provisions providing for an exchange of land to accommodate the site for the Bullock's Store. The Developer has indicated that a similar exchange is necessary for Broadway. Section 2 of the Fifth Supplement provides for that exchange, utilizing essentially the same series of documents that the Council has previously approved for the Bullock's exchange. The Council has determined that the addition of the Broadway Store to the Center will require additional public parking in the area. We have entered into an agreement to lease the necessary parking from Oceanside. Section 3 of the Fifth Supplement provides that May Company will assume our obli- gations to Oceanside under the lease with the exception of the payment of rent. It also provides that the May Company will enter into an agreement with us to manage, operate and maintain the parking area at no cost to the City. Attached, as an exhibit to the Fifth Supplement, is the form of the Operating Agreement, which we will enter into as soon as the Lease with Oceanside becomes effective. Under that b . n b - c .* 1, 1 2 3 4 5 6 7 'a 9 10 11 12 n 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 5624 A NSOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING A FIFTH SUPPLEMENT AWNDING THE AGME- MENT BETWEEN THE CITY OF CARLSBAD, THE PARXING AUTHORITY AND PLAZA CAMINO REAL FOR EXPANSION OF PLAZA CAMINO REAL REGIONAL SHOPPING CENTER AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREE-PENT. The City Council of the City of Carlsbad, California, does hereby resolve as .follows : 1. That that certain Fifth Supplement to Agreement dated November 22 , 1978,'between the City of Carlsbad, the Parking Authority and Plaza.Camino Real for expansion of the Plaza Camino Real Regional Shopping Center, on file with the City Clerk and incorporated by reference herein, and the exhibits thereto, are hereby approved. 2. That the Mayor of the City of Carlsbad is hereby authorized and directed to execute said Agreement for and on behalf of the City of Carlsbad. 3. That the Mayor of the City of Carlsbad is hereby authorized and directed to execute the Agreement Regarding Management, Operation and Maintenance of Plaza Camino Real Regional Shopping Center Parking Area in Oceanside attached to the Fifth Supplement as Exhibit H, for and on behalf of the City of Carlsbad. /// /// /// /// /// /// PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council of the City of Carlsbad, California, held on the 21st day of November , 1978 by the following vote, to wit: AYES : Councilmen Packard, Skotnicki, Lewis and Councilwoman Casler NOES : Councilman Anear. ATTEST : Lz4?2& 2 fl4&& ALETHA L. RAUTENKRANZ, Cit@lerk (SEAL). 2. Mayor and City Council November 9, 1978 Page 2 agreement, May Company will assume responsibility for the lot under the terms and conditions of the new Public Parking Lot Operating Agreement. In effect, the parking lot will be operated as a single unit subject to that agreement. The Fifth Supplement and the Operating Agreement provide that May Company will assume all of our obligations under the lease to Oceanside except rent. Section 4 of the Fifth Supplement deals with the deed for the Oceanside parking area. Sinceit is probable we, at some point, will exercise our option and acquire the property, the status of title is of some concern to us. Section 4 fixes the form of the deed to be used by May Company in conveying the property to Oceanside. It also provides for the status of title which we would acquire. Section 5 amends an exhibit to the Fourth Supplement in regards to a title matter affecting the new public parking area in Carlsbad. When that was before you, it was contemplated that May Company would lease the Broadway Store site to Carter, Hawley, Hale Stores,Incorporated. The parking lot was to come to us subject to the easements set forth in that lease. The section will provide for a similar set of easements in a deed between May Company and Carter since it now appears that a sale will take place. It is my intention to submit the Fifth Supplement as well as the Second Exchange Agreement and Escrow Instructions to the City Council for their approval at your November 21, 1978 meeting. We will also be arranging a special meeting of the Parking Authority to seek their concurrence on November 22, 1978. Please let me know if you have any questions in regards to any of the documents. VINCENT F. BIONDO, JR. City Attorney VFB/mla