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HomeMy WebLinkAbout1989-05-23; City Council; 10038; Park Agreement Subrogation (Fieldstone)1 ! i ! i I ! ! i I I I I 1 ! I 1 I I i 1 i i 1 ! ! I I i i ! I ~ I I 1 , I ! i I IEPT. cnm a PARKS AGREEMENT SUBROGATION (FIELDSTONE) Adopt Resolution No.wGthorizing the Mayor to execute an agreement to subrogate the 1988 Parks Supplement with the La Costa Ranch Company (Fieldstone). ITEM EXPLANATION On April 5, 1988, the City Council authorized the Mayor to execute an agreement to supplement to the existing Parks Agreement with the La Costa Ranch Company. Since the execution of that agreement the La Costa Ranch Company, owned by BCED, was sold to the Fieldstone Company. The 1988 Parks Supplement contained a specific provision to allow for subrogation provided it met with the approval of the City. This approval included the provision that the property owner retain a net equity value of $10 million in the property encumbered by the 1988 Parks Agreement. The proposal to subrogate this agreement does this and provides an additional guarantee for the City. It provides that in the event Continental Bank forecloses upon its loan to Fieldstone that the bank becomes responsible for the ob1 igations of the Parks Supplement. Both the obligation to dedicate 35 acres of park land and provide the City with a letter of credit in the amount of $2,241,265 to develop this park are adequately guaranteed. The subrogation of the existing Parks Supplement will not be adversely affected with the City's ability to provide park land in conformance with the Growth Management Program. FISCAL IMPACT None. EXHI BITS 1. Resolution No.8-eauthorizing the Mayor to execute an agreement to subrogate the 1988 Parks Supplement. 2. Subrogation Agreement from Continental Bank. 3. 1988 Parks Supplement 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 89-158 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING AN AGREEMENT BETWEEN CONTINENTAL BANK NA AND THE CITY OF CARLSBAD, SUBORDINATING THE 1988 PARKS SUPPLEMENT. AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT WHEREAS, the City Council of the City of Carlsbad, California, does hereby resolve as follows: 1. the City of Car attached hereto 2. That certain agreement between Continental Bank NA and sbad subordinating the 1988 Parks Supplement which is as Exhibit A, and part hereof, is approved. 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. PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council of the City of Carlsbad, California, held on the 23rd day of May , 1989, by the following vote to wit: AYES: Council Members Lewis, NOES: None ABSENT: None ATTEST:, / &~~JTE~&RAN~ City Clerk KUNDTZ, Deputy City Clerk Kulchin, Pettine, Mamux and Larson 231 South 1aSdlie Sireel Chicqo, llhnols W97 - 312 8282345 @ Contlnental Bank April 5, 1989 Ronald Ball Assistant City Attorney City of Carlsbad 1200 Elm Avenue Carlsbad, California 92008 - __ Re: Northwest Quadrant La Costa Ranch in Carlsbad Dear Mr. Ball: Continental Bank N.A. (formerly known as Continental Illinois National Bank and Trust Company of Chicago) ("Continenta1lt) and Fieldstone/La Costa Associates Limited Partnership, a California limited partnership ("Borrower") have entered into that certain Land Acquisition Loan Agreement dated November 5, 1988 (the "Loan Agreement") relating to a $150,000,000 loan (the "Loan") the proceeds of which shall be used to (i) finance the acquisition of the Southwest Quadrant, Southeast Quadrant, and the Northwest Quadrant as weJ1 as five other miscellaneous parcels of land known as La Costa Ranch (collectively, the "Property") and (ii) finance certain costs relating to the development of the Property, including obtaining land use entitlements from the City of Carlsbad ("Carlsbad"). The Loan is evidenced by a $150,000,000 Prom- issory Note Secured by Deed of Trust (the "Note") dated November 5, 1988, payable to the order of Continental, and the Note is secured by, among other things, a Deed of Trust, Assignment of Rents and Security Agreement (the "Mortgage") covering the Property. In the event that Continental acquires title to the Northwest Quadrant by foreclosure proceedings under the Mort- gage or by deed in lieu of foreclosure, or otherwise acquires title to the Northwest Quadrant pursuant to its rights and remedies under the Loan Agreement or the Note, and Continental proceeds with Development of the Northwest Quadrant (as here- inafter defined), Continental hereby agrees to be bound by all of the terms and conditions of that certain 1988 Parks Supplement between Carlsbad and BCE Development, fnc,, dated March 3, 1988 (the "Supplement"), including the obligation to (i) dedicate approximately 35 acres in the Northwest Quadrant to Carlsbad pursuant to the terms set forth in Paragraph 4 of the Supplement and (ii) deliver to Carlsbad a letter of credit I. i - Ronald Ba: Esq, April 5, 1~89 Page 2 / in the amount of $2,241,265. obligations set forth in (i) and (ii) immediately aboire, CarLsbad will release the lien of that certain Deed of Trust in favor of Carlsbad recorded April 14, 1988, de Instrument No. 88172278 in the Official Records of San Diego County, California (the "Deed of Trust") from the Northwest Quadrant as provided in the Deed of Trust and the Supplement, The Supplement shall not be amended or modifiee! without the express written consent: of Continental, For purposes hereof, "Develop- ment of the Northwest Quadrant" shall mean any use to which the Northwest Quadrant is put, building or other alteration of the Northwest Quadrant and construction incident thereto which requires any permit, entitlement or approval, whether discretionary or ministerial, issued under Titles 20 or 21 of the Carlsbad Municipal Code. Additionally, Continental shall use its best efforts to notify Carlsbad in writing within fifteen (15) days of the sale, assignnent, conveyance, or hypothecation of the Note to a third party or parties; provided, however, Continental shall have no obligation to provide Carlsbad with any such notice SO long as Continental continues to be the holder of the Note or the direct lender in connection with the Loan. If Continental. performs the This letter supersedes that certain letter from Continental to Carlsbad dated November 10, 1988, that certain letter from Carlsbad to Continental dated November 14, 1988, that certain letter from Continental to Carlsbad dated December 21, 1988, that certain letter from Continental to Carlsbad dated March 8, 1989, that certain letter from Continental to Carlsbad dated March 30, 1989 and that certain letter from Continental to Carlsbad dated April 3, 1989, If the foregoing is acceptable to you, kindly so indicate in the signature space provided below and return a copy of this letter, so executed, to the undersigned. DAY AGREED TO THIS OF , 1989. CITY OF CARLSBAD, a municipal corporation of the State of California - Very truly yours, CONTINENTAL BANK N.A., a nations? bqnking association SAF349 1988 PARKS SUPPLEMENT THIS 1988 SUPPLEMENT TO THE 1982 PARKS AGREEMENT is made this d.L- day of h_d/ , 1988, between the CITY OF CARLSBAD, a municipal corporation of the State of California (IICity'I) and BCE DEVELOPMENT, INC. ("BCED), agrees as follows: Recitals - A. On July 1, 1986, the City Council duly adopted, as Ordinance 9810, a Growth Management Program for the City of Carlsbad. The purpose of this Growth Management Program was to insure that an adequate level of public facilities and services would be provided prior to or concurrently with development. The Growth Management Program is based on a three-tiered planning approach which first began with the preparation of the Citywide Facilities and Improvement Plan to assess the existing and buildout public facility needs of the City. The second phase of the Growth Management Program requires that Local Facilities Management Plans be prepared in each of the twenty- five management zones in order to show how development of these areas will comply with the City's Growth Management Program. The third and final phase of Growth Management requires that as individual projects are approved they clearly identify how they provide the public facilities required for their projects and fit into both the Citywide Plan and the Local Zone Plan. B. On September 23, 1986, City Council duly adopted, as Resolution No. 8797, Citywide Facilities and Improvement Plan as the first phase of Growth Management. At this time the City Council adopted Resolution No. 8796 which established the specific public facility performance standards to be used in the implementation of the Growth Management Program. C. The Local Facilities Management Plans for Zones 11 and 12 have been prepared in accordance with the City's adopted Growth Management Program. During the preparation of these facility plans, certain public facilities such as parks were identified to be below the adopted performance standard. The City's Growth Management Program requires that all eleven public facilities conform wi€h the adopted performance standards or no development may be allowed to occur. BCED's development, as well as other developers in the southeast quadrant, cannot go forward until these facilities are brought into conformance with the adopted standards. To comply with the City's Growth Management Program, the City and BCED have agreed to work . together to secure necessary park land and guarantee the a portion of the financing for construction of required park land within the southeast quadrant of the City. D. As a major landholder in the southeast quadrant, or Park District 4, BCED is willing to provide both dedication of park land required and to guarantee a portion of the financing for the construction of this park land which together with the City's financing of a portion of this park land will allow development to comply with the City's Growth Management Program and will allow BCED the ability to build in the southeast quadrant so long as all public facility performance standards are met. E. BCED desires to revise its existing Master Plan and the City has agreed to the processing of certain items in order to allow BCED to begin this process. This supplement is necessary to update the 1982 parks agreement and the requirements for the existing Master Plan to make them consistent with the proposed master plan revision and the City's Growth Management Program. F. As a part of the ongoing planning process, the City's Growth Management Program and the adoption of Public Facilities Performance Standards, the City and BCED now wish to amend the 1982 Parks Agreement with this 1988 Parks Supplement to: (1) Satisfy the Master Plan requirement for parks acreage: and (2) Allow for the accelerated dedication and joint financing of the construction of the North Community Park. -2- 2/6/88 by POC NOW THEREFORE, incorporating the recitals of facts set forth above and in consideration of the mutual covenants herein contained, the parties agree as follows: AGREEMENTS 1. This Agreement is a supplement to the 1982 Parks Agreement. BCE Development, Inc. ("BCED't) is a party to this Agreement as a successor in interest to the Daon Corporation. 2. Paragraphs number 3 and 4 of the 1982 Parks Agreement 3. The dedication of various park land under the 1982 Parks Agreement has occurred and the schedule marked Exhibit #1, attached hereto and made a part hereof, provides a statement of the remaining existing parks credits available to BCED under that agreement. 4. BCED agrees to dedicate 35 acres of park land to the City of Carlsbad. The area dedicated shall be subject to the approval of the Parks and Recreation Director, the City Engineer, and the Planning Director. The dedication shall include the right-of-way and/or easements as are necessary to provide streets and utilities necessary to access the park as determined by the City. The park site shall be selected by a process of mutual agreement in the context of processing the Master Plan for Local Facility Management Zone 10. If agreement is not reached by December 1, 1989, the City shall have the right to designate in writing to BCED the 35 acres it desires to be dedicated for park land and the dedication shall occur no later than 30 days following written notification. The agreement for this dedication shall be secured by a Deed of Trust in favor of the City of Carlsbad encumbering the entire 765.9 acres of the property located within Local Facility Management Zone 10, to be executed and delivered with the execution of this agreement. BCED shall provide this Trust Deed within thirty (30) days after this agreement is approved by the City Council. -3- 2/6/88 by POC shall be superceded by this 1988 Supplement. The dedication of park land shall occur on the earlier of the recordation of the first final map of property owned by BCED in Local Facility Management Zone 12 as shown on Exhibit #2, attached hereto and made a part hereof, labeled "BCE Development 423 +/- acres," or January 1, 1990. 5. BCED agrees to pay $2,241,265 for the construction of 19.48 acres of park land. This agreement shall be secured by the Deed of Trust on BCED property in Local Facility Management Zone 10. Upon the earlier of the recordation of the first final map of property owned by BCED in Local Facility Management Zone 12 as shown on Exhibit #2 labeled "BCE Development 423 +/- acres,!! or January 1, 1990, BCED shall deliver to the City a letter of credit in the amount of $2,241,265 as substituted security. The letter of credit shall be issued by a financial institution and contain terms and conditions as acceptable to the Finance Director and City Attorney. Upon delivery and acceptance of the letter of credit and the appropriate documentation dedicating the 35 acres to the City, as required by Paragraph 4 the City shall reconvey the Deed of Trust. 6. The City shall provide BCED with a funding schedule for the construction of the park described in paragraph 5, not later than 90 days prior to date when the City will require funds. BCED shall provide cash to City as required by the funding schedule on the date due. If BCED fails to provide construction funds as required by the schedule, then City has the right and shall enforce the obligation against the letter of credit. As construction funds are paid, the City shall concurrently give such notices as necessary to reduce the letter of credit by the equivalent amount paid. The City agrees not to make any call for funds prior to January 1, 1990. 7. This supplement will require BCED to dedicate 35 acres of park land prior to the time the actual park land requirements will be determined as the revised Master Plan is prepared and approved. The City and BCED therefore agree to provide in this supplement for a method .of accounting for this dedication and 2/6/88 by POC -4- subsequent BCED park demands. BCED parks requirements for their residential property in the southeast quadrant shall be established by the City Council as a part of its approval of the revised Master Plan (_"the MP Requirementnn). The MP requirement will be subtracted from the 35 acres to determine the remaining acreage. Any existing credits unused at the time of dedication available under the 1982 Parks Agreement will be added to the remaining acreage and the total will be available for reimbursement ( I@Reimbursement Acreage") . A. BCED shall receive park-in-lieu credits in accordance with the 1982 Agreement and this supplement for individual subdivision of its property up to the amount of the MP requirement. Any unused remaining balance of the MP requirement will be retained by the City. If subdivision requirements exceed the MP requirement amount the reimbursement acreage will be reduced accordingly. Upon dedication of the 35 acres, the City and BCED will agree upon a certified M.A.I. appraiser who will determine the value of the park land at its highest and best use at the time it is dedicated. Once the MP requirement is determined then, if necessary, the City will enter into a reimbursement agreement with BCED. The agreement will provide for a determination of the value of the reimbursement acreage as of the date of the dedication by appraisal. BCED will be reimbursed by City a percentage of the park in lieu fees collected by City from other developers in the southeast quadrant in accordance with the City's capital improvement budget priorities. 8. As a part of this supplement, BCED agrees to pre-pay $2,241,265 of their Public Facility Fees to the City, in accordance to paragraphs 5 and 6 of this supplement, in order to guarantee the construction of 19.48 acres of park land. The City agrees to the following: a. Through June 30, 1992 BCED shall be required to pay b. Commencing July 1, 1992, BCED shall have its Public all Public Facility Fees in full as they accrue. I. -5- 2/6/88 by POC i I Facility Fee requirements set at 65 percent of the Public Facility Fee until such time as the entire pre-paid amount of $2,241,265 is reduced from Public Facility Fees owed or reimbursed by the City. BCED shall be able to apply this reduced rate against its obligation to pay Public Facility Fees for any project in the southeast quadrant. The annual maximum that the Public Facility Fee may be reduced in any year shall be $317,500. If this Public Facility Fee reduction does not reach the maximum annual amount of $317,500 allowed under this supplement, the City agrees at its sole discretion, depending upon the available Public Facility Funds, to reimburse BCED the difference. (c) All pre-paid Public Facility Fees shall be received as fee reductions or reimbursements no later than June 30, 2002. Any remaining balance as of June 30, 2002 shall be paid by the City to BCED. (d) The City shall maintain an on-going record of all Public Facility Fees paid by BCED and a complete summary of all fee reductions and reimbursements made by the City. 9. The City agrees to use its best efforts, assuming timely response to all City requirements by BCED, to meet a processing schedule by providing the following items for City Council action by September 6, 1988: A. Master Plan and General Plan Amendment, if required, for Local Facility Management Zone 12 as designated by BCED as vvsouthwest88. B. Environmental review for Local Facility Management C. Financing plans for Local Facilities Management D. Tentative maps for Local Facility Management Zone Zone 12 area as designated 88southwestv8. Plans Zones 11 and 12. 12 area as designated v1southwest8v. -6- 2/6/88 by POC 10. The City agrees that as between the City, BCED and MAG for the BCED Local Facility part of the Properties, Management agreement to be made the processing times Zone 11 properties designated as "southeasttv shall be determined and fixed by mutual agreement. Failure to reach a mutually acceptable processing schedule for BCED Local Facility Management Zone 11 shall in no way affect any other provision of this supplement. 11. This supplement shall constitute the entire supplement to the 1982 Parks Agreement in complete and understanding between the parties with respect to the subject matter hereof, superceding all negotiations, prior discussions, preliminary agreements or understandings written or oral. This Agreement shall be effective upon execution of said Supplemental Agreement and upon delivery of Trust Deed in favor of the City for 765 acres of Local Facility Management Zone 10. BCED will deliver this Trust Deed to the City no later than thirty (30) days following City approval of this supplement. 12. IN WITNESS WHEREOF, the parties hereto have executed this agreement on the day and year first above written. CITY OF CARLSBAD A Municipal Corporation of the State of California ATTEST: d BCE DEVELOPMENT, INC. City Clerk A Delaw e Cor oration I!.. AVIS La Costa Ranch Co. City Attorney -7- 2/6/88 by POC EXHIBIT #1 I-I uuuu <<<< mmyy .. NNNN cccc In N .000 c Y C ui% mu u CL um u< urn n N .- mu L -u mu 0.9) uu << In9 mr .. c u) .C urm .- m u u L .- uu uu Q uu muL nuu mm r Crn u .C *xu ooc oc3 0 < u < 00 << uu CU u < uu << 0mm- muMIn0mmrh mNmhmmbo.rn ho.rno.0OONM ......... ccccc M ? N rw-NMuUlrO d m > 0 L P n m d .C u C 3 0 O C 0 P 3 r C u m C C 0 u .C u U < m N U ? c- r- m ? M (0 9 N ? U c 1 c * Ln m I m I- 0 ume .- c -. . 0 1 U- 9) L 0 t c 01 m m u L u m U u 3 L P 9 C 0 n a U C u E * a 0 aJ N 9 r- 8- ?ooooooo e e eI-+cec u. uvvuvu EXHIBIT #2 April 8, 1989 Cindy Ward 937 Begonia Court Carlsbad, CA 92009 Carlsbad City Council 1200 Carlsbad Village Drive Carlsbad, CA 92008 RE: Dog Ordinance Dear Councilmembers: Late last year, after becoming fed-up with so many irresponsible dog owners, I began to research what ordinances Carlsbad has and ways that problems can be dealt with. By coincidence, this issue turned up on your agenda. Citizens often complain about things that affect their quality of life but I can’t think of anything that can destroy one’s quality of life more effectively than irresponsible dog owners who permit their dogs to bark all night; turn public parks, beaches, walkways and other peoples’ private property into toilets; allow their dogs to run loose terrorizing neighborhood children, bikers, walkers, and joggers; and, dog owners who don’t clean up after their dogs on their own property, impacting their next door neighbors with insects and odor. What I learned through research is that Carlsbad adopted ordinances by reference when a contract was signed with the San Diego County Department Of Animal Control. When the dog ordinance appeared on your January 10 agenda, I came to the meeting prepared to present the ordinances (attached) to you but didn’t get the chance because you were already on the agenda item at 6:03 p.m. During the break I gave David Bradstreet the card containing the ordinances. Following the council meeting, I contacted friends who purchased a beach front home on Ocean Street early last year to get their input on the issue. In purchasing the home, they dedicated a five foot public access way to the beach through their property. They maintain that people are constantly stopping at their home to ask where the dog beach is and that the beach is so bad during the summer that it’s difficult to walk the beach not to mention unpleasant. As a result, they don’t permit their own two dogs on the beach. Recently, I spoke to Mr. Jim Vanschmus, Cheif Ranger at State Parks 8, Recreation for input. He maintains that dogs are a constant enforcement problem when permitted on beaches. On state beaches where dogs are permitted, leash and cleanup ordinances are ignored by the majority who bring dogs on the beach. He also explained that ordinances that permit dogs on beaches certain hours during the day or months of the year is the biggest enforcement nightmare of all because of the difficulty in making the public understand when dogs are permitted and when they are not. Mr. Vanschmus is very much in support of banning dogs from beaches because he claims they are a nuisance to the public and present a health risk. He also stated that few problems exist where dogs are not permitted on beaches. March 8, I attended the public meeting held by the Parks & Recreation Department on the dog ordinance. Bill Shane, Chief Lifeguard for State Parks & Recreation attended this meeting to answer questions, at my request. I felt this was an excellent opportunity for the committee and the public to get input from an agency that deals with problems associated with dogs on beaches on a daily basis. Unfortunately, committee members did not focus their attention to the magnitude of the problem of having dogs on beaches or ask questions concerning enforcement. Most of the individuals who attended this meeting to plead their case to keep dogs on the beach admitted they don’t use leashes or clean-up after their dogs because they weren’t aware (until the beginning of the meeting) that ordinances exist that requires them to! Personally, I think we have a real problem when it takes an ordinance to force people to use common sense and show a little consideration. Telling a dog owner that they can’t take their doggy to the beach is essentially like telling a mother she can’t take her baby to the park! It isn’t likely that anyone will stand before the council during a public hearing to support banning dogs from the beach even though the majority of the public probably supports this ban, When this issue first surfaced, I felt that a compromise could be made to allow dogs on the beach on a limited basis. However, after much input and consideration, I understand the extent of problems associated with allowing dogs on beaches and the difficulty with enforcement. Compromises are simply not working in areas where they have been made according to State Parks & Recreation. The majority of pet owners do not comply with leash and clean-up ordinances where posted. Mr. Vanschmus summarized a recent incident on a state beach in Leucadia where dogs are permitted. A lifeguard asked a man to clean up the mess his dog had dumped on the beach. The man picked it up with a frisbee and flung it in the lifeguard’s face! I commend you for taking action on this issue in doing what is best for the public concerning beaches and parks but the problem is not limited to just these areas. Everyday, hundreds of inconsiderate dog owners can be seen walking their dogs throughout the city on public and private property, unequipped to clean up after them. Frequently I witness people who pull up in vans around our neighborhood, allowing several dogs to get out and run loose and do their thing. There must be a way to get the message out that we do, indeed, have a clean-up ordinance and that dumping will not be tolerated. Perhaps it would be in the best interest of the public to consider drafting the county’s ordinances verbatim into city ordinances. By doing so, our peace officers could respond to complaints, when necessary, in conjunction with the County Department Of Animal Control. Adopting ordinances by reference does not weigh as heavily in gaining cooperation because these type of ordinances are obscure. Thank you for your consideration. Sincerely, Cindy Ward A I U 0 U Y E W u b \ -1 &+ .. .- (ij 0 5 0 U m W W W m a 5 5 4- L w- C C E 0 0 , d 0 .a 0 DATE : April 10, 1983 TO: CITY OF CARLSBAD CITY COUNCTL SUBJECT: DOG ORDINANCE I SUPPORT THE PARKS AND RECREATION COMMISSION'S RSCOmENDATION OF SEASONAL RESTRICTIONS AND REQUEST THAT YOU CONSIDER SUMMER AVAILABILITY OF THE BEACH TO LEASHED AIYTHALS BEFORE 8:Oo A.M, AND AFTER 6:OO P.M, 2986 LUCIERNAGA STREET CARLSBAD, CA 92009 4 38-7 4 17 I