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HomeMy WebLinkAboutAGENDA REPORT 1998 0304 CC REG ITEM 11HTO: I _;lu DATE: AGENDA REPORT CITY OF MOORPARK The Honorable City Council Nelson Miller, Director of Community Developmen '7 /a . /D) %�(A1 ITEM Ile He CITY OF MOORPARK, CAI.JFORNIA City Council Mectinb of ,rnatrc i , � 199, ACTION: "4-, r-1u cam+ •t 3 18 BY February 20, 1998 (For the City Council Meeting of March 4, 1998) SUBJECT: Status Report Regarding Vesting Tentative Tract 4928, Moorpark Country Club Estates Project (Bollinger Development Corporation /Toll Brothers, Inc.) At the meeting of February 4, 1998, City Council requested a status report be scheduled for meeting of March 4, 1998, regarding this project. At the meeting of February 4, staff provided a report with the background and recent history of this project. Toll Brothers, Inc. had recently contacted staff regarding this project. Attached is a letter from Toll Brothers, dated February 19, 1998, indicating they signed a contract with Bollinger Development, Inc. for acquisition of this project and outlining some proposals for modifications to the Development Agreement associated with this project. Also attached is a letter from Bollinger Development Corp., also dated February 19, 1998, with some additional information regarding the project. Staff is reviewing the recent material received and has again requested additional information from Toll Brothers and Bollinger regarding their proposed schedule of development and acquisition of properties. This will be reviewed with the City Attorney once the additional information is received. Furthermore, Mr. Bollinger has indicated that there was court action on January 29, 1998, to clear the title on a portion of the property. However, the action was subject to a sixty day appeal period. Considering previous experience relating to this project, it therefore may be appropriate to review the project with the Ad Hoc Committee subsequent to the expiration of the appeal period relating to that property and receipt of the information requested relating to schedule. This could avoid additional needless expenditure of committee and staff time in the event of an appeal. RtKAG"I 1019111.114 11110 It is recommended that this item be continued until the Ad Hoc Committee for this project is prepared to report to City Council. Attachments: 1. Letter from Toll Brothers, Inc. dated February 19, 1998 2. Letter from Bollinger Development Corp. dated February 19, 1998 C: \OFFICE \W P WIN\WPDOCS \CCRPTS \T4928 -34RPT 00620C, FEB -19 -1998 12.36 TOLL BROTHERS, INC. `roll `Brothers, 17nc. Quality Homes By DesigrjO Via: Federal Express - next day Faxsimile February 19, 1998 Steve Kueny, City Manager City of Moorpark 799 Moorpark Ave. Moorpark, CA 93021 Re: Moorpark Country Club Estates Project Proposed Amendment of Development Agreement Dear Mr. Kueny: 714 935 9711 P.02/06 We are pleased to inform you that Toll Brothers, Inc. has signed a contract with Bollinger Development, Inc. for acquisition of the above - referenced project. A key condition of that transaction is the ability to restore and/or modify certain key development entitlements for the project, particularly the development agreement approved by the City on April 8, 1996. This is intended solely to deal with circumstances that have changed since the time that these entitlements originally were approved and we are not intending to change the spirit of this agreement. Based on discussions both with Bollinger and with our attorney, we would like to offer the following proposals for modifications to the development agreement: 1. We would like to clarify the relationship between the development agreement and other project entitlements. Concurrently with approval of the development agreement, the City approved a general plan amendment, a zone change, a vesting tentative subdivision neap, a residential planned development permit, and a conditional use permit. Those entitlements would have governed the project in the absence of the development agreement. However, in consideration for additional obligations bmposed on the developer, the development agreement granted the developer a number of benefits not included in, or simply different than, the conditions of the other entitlements, e.g., the opportunity for private interior streets and for both golf courses to be public. The development agreement, as a negotiated contract between the City and the developer, is intended to take precedence over any of the underlying entitlements which it secures, and ordinarily we would include a statement to that effect in such an agreement. Consequently, purely for clarification, Section 3(e) should be added, reading: "In any Ilse where the provisions of this Agreement differ from or conflict with the provisions of any of the Project Approvals, this Agreement shall prevail. " New York Stock Exchange • Symbol TOL 2100 West Orangewood Avenue. Suite 180, Orange. CA 92868 Telephone (714) 935.0700 ATTACHMENT 1 0002.01 FEB -19 -1998 12:37 TOLL BROTHERS, INC. 714 935 9711 P.03/06 Steve Kueny, City Manager City of Moorpark February 19, 1998 Page 2 2. We see no need to charge the schedule for payments to the City, pursuant to Section 6. However, the passage of time has rendered the original anticipated construction schedule impossible to meet, i.e., the requirement in Section 4 calling for the first golf course to be completed and available for public play by May 1, 1998. To remedy that, the first paragraph of Section 4 should be deleted, and replaced with the following: "The Golf Course Commencement Date shall be May 1, 1998. "Developer shall complete the construction of both golf courses not later than two and one- half years following the issuance of a grading permit for the golf course site. " 3. Section 7(c) currently provides that the City will use its powers of eminent domain to assist the Developer in acquiring land needed for public improvements, solely outside the City's boundaries. A similar obligation relating to land within the City's boundaries is set forth in subdivision map Condition of Approval No. 170. However, since the Development Agreement takes precedence, it could be argued that failure to mention condemnations within the City in the Agreement was intended to exclude them from coverage. Purely for clarification, we would like to have Section 7(c) modified to cover acquisitions both inside and outside the City. 4. Section 7(1)(1) permits recordation of the Final Map in as many as eight phases, consistent with the Phasing Plan on file with the City. We do not need to change this provision, but we wish to bring to your attention that we expect to need to revise the order of phasing under the Phasing Plan, vyith the proviso that the current first phase, which we understand to be very important to the City, will not be changed. 5. We are aware that the use inauguration periods for the residential planned development designation (RPD 94-1) and the golf course conditional use permit (CUP 94 -1) technically both have expired. However, it seems to us that those time periods, both of which were intended to be extended once the Development Agreement became effective, should have been suspended in the interim. Moreover, no changes are requested to the terms of either of those approvals. This problem would be solved by adding the following sentence at the ends of both Section 7(1)(9) and 7(1)(10): "The use inauguration period shall commence upon recordation of this Agreement." 6. We understand the importance to the City of receiving the payments provided for in Section 6, and the)desire of the City to secure those obligations with a promissory note and deed of trust. That, however, should provide the City with sufficient security for the payment () 0C)?Q0 FGA 1 Q I QA 1 'D - SG1 FEB -19 -1998 12:3? TOLL BROTHERS, INC. 714 935 9711 P.04i06 Steve Kueny, City Manager City of Moorpark February 19, 1998 Page 3 obligations. We are very uncomfortable with the provision of Section 10 which additionally treats the failure to make any such payment as a material breach of the Agreement. We ask that Section 10(d) be eliminated, and that the following be inserted in Section 6(a)(4) following the first sentence: "Enforcement of the terms of the Promissory Note and the Deed of Trust shall be the City's sole remedies in the event of failure by Developer to make any such required payments. " We need to raise three other issues pertaining to the Deed of Trust. First, the Rider to the Deed of Trust is attached as Exhibit "C" to the Development Agreement, but the Deed of Trust itself is not attached. We need to review the document which the City intends to use, and we would prefer to have it attached to the Development Agreement as well. Second, we need to make a minor adjustment to the Promissory Note and Deed of Trust, to take into account the mechanics of our relationship with Bollinger in developing the project. Toll will incur certain construction costs which Bollinger may have to reimburse, including the cost of grading the golf course site. Bollinger's obligation to Toll will be secured by a deed of trust encumbering the golf courses. To whatever extent Bollinger turns out to have such a financial obligation to Toll, it would be paid off by Bollinger's construction loan, to which the City has agreed to subordinate its Deed of Trust. Since the Deed of Trust will encumber solely the west golf course, once the tentative map has been recorded, that land has been conveyed to Bollinger, and the Promissory Note has been assigned to Bollinger, the obligation will pass to him as well. We only need to clarify the documents to ensure that this arrangement will go smoothly. We would like to modify Section 6(a)(4) by adding the following, at the end of the existing text (tracking existing language in Section 17 relating to the definition of a "substitute person "): "City acknowledges that, although Developer will execute the Promissory Note and Deed of Trust, Developer intends to convey title to the west golf course and assign the Promissory Note to Paul A. Bollinger, a natural person, or a partnership, joint venture, corporation, association or other legal entity in which Paul A. Bollinger is a partner, owner, director, officer or employee or has a legal or equitable interest. " To allow this to occur, Paragraph 9 of the Promissory Note needs to be modified by inserting the following prior to the current text: "Developer may assign this Note, in whole or in part, without the prior consent of City, to Paul A. Bollinger, a natural person, or any partnership, joint venture, corporation, 0002®1S FEB 19 '98 12:51 71A g7cS 4711 con= MA FEB -19 -1998 12 :38 TOLL BROTHERS, INC. 714 935 9711 P.05i06 Steve Kueny, City Manager City of Moorpark February 19, 1998 Page 4 association or other legal entity in which Paul A. Bollinger is a partner, director, officer or employee or has a legal or equitable interest. Otherwise ... ". Finally, it seems clear from the development agreement and the deed of trust rider that the west golf course is intended to be the City's sole long -term security for the developer's payments required under Section 6 of the agreement. However, to eliminate any uncertainty over this issue, we would like to add the following sentence to Section 6 of the promissory note: "In the event of default under the terms of this Note, the Deed of Trust shall be the sole security for this indebtedness. The sole recourse of City for any and all such defaults shall be by judicial foreclosure or by exercise of the Trustee's power of sale under the Deed of Trust, and Developer shall not be personally liable for the indebtedness or any part thereof. " Similarly, Section 1.6 should be added to the Rider to Deed of Trust, reading: "The Deed of Trust shall be the sole security for the indebtedness evidenced by the Promissory Note secured hereby. In the event of default under the terms of that Promissory Note or this Deed of Trust, the sole recourse of Beneficiary for any and all such defaults shall be by judicial foreclosure or by exercise of Trustee's power of sale hereunder, and Trustor shall not be personally liable for the indebtedness or any part thereof. " 7. Toll is purchasing the entire property which is the subject of the Development Agreement. Bollinger has no interest in our company. AIthough a portion of the property will be conveyed back to an entity with which Bollinger is associated, Toll must be able to step into the position of the Developer under the Development Agreement. Consequently, the definition of "substitute person" in Section 17 needs to be modified by inserting before the period at the end of the first paragraph the phrase: "...or Toll Bros., Inc., a Pennsylvania corporation ". 8. Our company needs to be added as a party having a right to receive any notices pursuant to both Section 18, and Section 11 of Exhibit B- Promissory Note secured by Deed of Trust, as follows: "Toll Bros., Inc. 000?®,_ FEB 19 198 12:51 71 n o-ic o�4 4 FEB -19 -1998 12:38 TOLL BROTHERS, INC. 714 935 9711 P.06/06 Steve Kueny, City Manager City of Moorpark February 19, 1998 Page 5 2100 West Orangewood Avenue, Suite 180 Orange, CA 92868 Attn. Jim Boyd ". Please give these proposals your immediate consideration. We would like to meet with you and other appropriate City officials as soon as possible to discuss these matters. Thanks for your anticipated cooperation. Sincerely, LL, BROTHERS, INC. Paul Feilb g _ Senior Project Manager PF /db cc: Patrick Hunter - Mayor Debbie Rodgers Teasley -Mayor Pro Tern Bernardo M. Perez - Council, member Cristopher Evans - Council member John E. Wozniak - Council member John E. Nowak - Assistant City Manager Nelson E. Miller- Director of Community Development Paul Bollinger TOTAL P.06 FEB 19 198 12:51 714 935 9711 pore ac FROM : Panasonic FAX SYSTEM PHONE NO. : Feb. 19 1998 03:46PM P2 February 19, 1998 City of Moorpark 799 Moorpark Avenue Moorpark, CA 93021 Attention: Nelson Miller, Director of Community Development Subject: Moorpark Project Update Dear Nelson: The following is an update for your review: 1. As discussed in my last update of February 10, 1998, Told received corporate approval to go forward. Please find attached the signed contract for your records. 2. As discussed you should receive a letter today from the Toll Brothers which outlines the changes we would like to see incorporated.in the Development Agreement. 3. Per our request we would like an AD -Hoe Committee as soon as possible to discuss the Development Agreement changes. 4. We are presently finalizing the purchase of the Morman Church property and should have this completed by March 4, 1998. 5. We are also planning to sign the Development Agreement as owner of CPB before March 4, 1998. 6. As discussed with you we want you to hire the Planning Corporation so that they can start the 404 and 1604 permits as soon as possible. We have asked you to put this item on the City Council Agenda for March 4, 1998. This is very important to us. Bollinger iavelopmont Corp. 351 ROIUNG OAKS DRIVE, SUITE IOOA THOUSAND OAKS. CA 91361 (805) 379.0077 PAY-(8051379 -6735 c' c irounc, /rY1cr���s �'. M.) Ass C/Y j Q, CQ� �;" /� ATTACHMENT 2 FGA 1Q +QC 1C -Mo N RII itI`'IE FROM : Panasonic FAX SYSTEM PHONE NO. Feb. 19 1998 03:47PM P3 Please make copies of this update and give everyone listed below a copy. If you have any questions please call me at (805) 379 -007. yo Paul B lin President cc: Steve Kueny — City Manager Patrick Hunter — Mayor Bernardo M. Perez — mayor Pro Tern Christopher Evans — Councilmember Debbie Rodgers Teasley - Councilmember John E. Wozniak — Councilmember John E. Nowak — Assistant City Manager PB*/*WftI77Aw FROM.: Panasonic FAX SYSTEM PHONE NO. Feb. 19 1998 03 :47PM Pa Seller shall each bear one -half (:. /2) of the EsC.row Agent's fees and cancellation charges. (e) inters t- Bearing Accounts, 'ZhO Z8CX0w Agent is hereby instructed to deposit all funds which are deposited into the escrow by the parties in interest - bearing aeeounta insured by the Federal Deposit Insurance corporation until arty of such funds are distributed to the parties. Interest earned on any deposited funds shall be the proporty of the party dapceiting such funds) any special charge levied by the Zscrow Agent to establish an interest bearing account shall he paid by the party for whose benefit Interest shall accrue. (f) D`si=ati as Reeertira Pe A-M. The Escrow Agent is hereby designated W Seiler and Buyer as the "Reporting Persons fer purposes of filing th09e --Sports which may be required by the internal Revenue Mode and any regulations promulgated thereunder regarding sales of real property. The Escrow Agent, by opening escrow, accepts such designation and agrees to complete and file any required reports. Seller and Buyer agree to cooperate with the Fscrop Agent and provide such information as may be required by law in order for the gserew Agent to timely and accurately file such reports. IA WITNESS WHW=l, the parties hereto have hereumo set their hands and seals the day and year first above written. NJ By: b4 ffam . Aryl % p Title. 1:\AOS \Noorak.7 SUMS TOLL anon., nw. 0'W'. of Execution: , -20- 7 /3.0 /98 TM, I TOM P. 9Q.