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Legitimate objections to be addressed

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This topic contains 3 replies, has 3 voices, and was last updated by  Laurie Switzer 3 years, 7 months ago.

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  • #1531

    Al Rodbell
    Participant

    I’m the guy who has become the most vocal person described as “opposing the Pacific View purchase.” Sometimes generalizations become distortions, so this is to clarify my evolving position and invite a conversation.

    After reading ideas on this website, and the passion that may be partly inspired by this location — even given the limitations I have described, I can get behind the decision for the purchase we are currently in contract for. However there is no reason to accept certain terms that have the distinct tone of being dictated by a bully, EUSD Superintendent Tim Baird, with no financial benefit to his agency. These terms can only be understood as ego driven demands to show he can sell the property for top dollar and rather than transferring all rights to the city, limit our options for responding to unforeseen events.

    Many people, including myself, have minimized the high price, seeing it as a transfer from one governmental function to another, which is primary education. This is an illusion, as the seller, the Encinitas Union School District, actually educates more students in Carlsbad than in this city. Details are on FocusOnEncinitas.blogspot.com. It’s our pocket it’s coming from, and our wealthy neighbor whose it is mostly going into. While this is now background, it informs what follows.

    The council majority has determined, based on the meeting of 7/16 that we will complete the purchase without even the most rudimentary evaluation of the limits that will be imposed by the coastal commission. This “troika” refused to try to get reimbursement for the discovered asbestos & lead mitigation and the reduced acreage due to the alley easement; they appear to be so cowed by the bully stance of Tim Baird that they will have taxpayers pay for this clear responsibilities of the seller. Reduction of price for such expenses is not even controversial, as Mayor Gaspar pointed out to the majority faction to no avail.

    Mr. Baird’s “Carlsbad” School board, has dictated to us that we can never relocate the one room school house; and that we must first offer them the property for the next decade at a reduced price (Ignoring the sizable closing costs added to the nominal price) and then dictating how it should be zoned once we own it. This is beyond Baird being a zealous negotiator for this agency, rather being a gratuitous act of hubris by a dominating individual. And it could hurt our city.

    While I can feel the enthusiasm among advocates of “Save Pacific View” I believe that the test will be whether the vision can be realized. Unexpected events happen, such as the real estate crash of 2008 and natural uninsurable catastrophes. So, “yes, let’s buy this property, and allow those dedicated to realizing their vision have a go at it. Maybe they will even let me join in this effort” but we must NOT do this, we need not do this, in the absence of complete discretion to act on the outcome of the challenges that will arise. It may be that future councils, future generations, find that a few private residences on the site could fund projects that otherwise could never be realized. As this offensive contract is now written, our future leaders will be precluded from even considering such an option.

    It is this website’s group who motivated the council to buy this property who must now take a step back, not to allow it to be sold to developers, but to have our city, under the existing escape clause that the seller agreed to, modify the ancillary terms. We can even keep the existing price, in effect footing their cost of mitigating removal of harmful substances, but we should never deprive future city residents of every reasonable option to re-conceptualize this legacy site.

    I welcome a discussion on these suggestions.

    • This topic was modified 4 years, 1 month ago by  Al Rodbell.
    • This topic was modified 4 years, 1 month ago by  Al Rodbell.
  • #1534

    Dennis Coffey
    Participant

    Mr. Rodbell makes some very good points, but I still agree that the Encinitas City Council made the right move in nailing down this special piece of real estate that you can be sure developers were drooling over. Could the council have played hardball with the school district? Possibly, but at the risk of losing the property! Did Tim Baird behave like a bully? Definitely, and the voters should remember this when he is up for re-election. Could the council have taken more time to address all the negative issues discovered on the property before it was purchased? I don’t believe so, considering the time constraints of a pending auction. The alley easement was or should have been apparent to all prior to the purchase, as it’s been there for decades; however, should the council attempt to get some reimbursement for the asbestos and lead paint mitigation? Yes, if that is a legal option and one that will not risk nullifying the agreement.
    I think we need to remember that Encinitas has retained an irreplaceable piece of property, and based on the estimated value of the properties around it, we did not overpay. The thing that does bother me is that this property really belonged to the community of Encinitas in the first place and had been donated as such. Tim Baird and the rest of the EUSD Board of Trustees, with the sole exception of Maureen Muir, took an adversarial role in the negotiations against the very community they serve. I hope the voters will remember. I know I will!

    Dennis Coffey
    Leucadia

    • #1540

      Al Rodbell
      Participant

      Mr. Coffey

      First, let me say that the central premise of my posting, that the EUSD is defining how the city uses the property; upon careful inspection of the actual contract, (URL below) is not correct. While early conversation and perhaps the MOU did have a requirement that the city zone this property only for exclusive public use which would have hindered flexibility that I described in response to unexpected events, this has not survived to the contract.

      The contract still contains the clause that the single room schoolhouse shall remain on the property in perpetuity, which while not a deal breaker, should be removed if we were to get into re-negotiation (which we should for reasons of hazardous substances removal below) simply because a future council could choose to move it to the Historical Society Location at Quail Garden Drive to fit the city’s larger plan for a museum area there. This could providing more scope for a conceptual design that could include a revenue producing residence element. There is no reason to contractually preclude this in perpetuity– which is a long long time!

      The hazardous material clause (5.1.7 below) allows us to negotiate a reduction of the sales price based on this parsed restatement of the clause:

      To the best of Seller’s actual knowledge: (1) no Hazardous Substances (asbestos and lead pant is included in this term) has been treated on the property which subjects the buyer to liability under Hazardous Substances Law.

      Seller could only have made this statement of ignorance of treatment by asbestos and lead paint by willful ignorance of said materials commonly being used during the period of construction. Therefore the cost of remediation and additional insurance for future claims warrants a demand for reduction in agreed price of property. The refusal of the council majority to seek this is an abrogation of their fiduciary responsibility that should not stand.

      The buy-back clause of the contract is highly restrictive with unexamined unnecessary potential costs First our final expenditure including bond fees is aprox. $10,500,000. The required sell back at the lower nominal price would have been appropriate had the price been discounted based on the expectation of it’s use being a public benefit. But we are paying the market value, and as such should have been treated the same as a private investor, which means to bear any loss and reap any gain. Furthermore the clause, in the unexpected event of a forced sale, would deter serious investors, knowing that the school board has an undefined right to purchase, with the details of conditions of sale undefined. At the very least the clause should be revised to state that upon our notice to the district within the ten year period they must submit an offer with the identical terms of the instant Contract of Sale and Purchase which includes a reasonable non refundable deposit of ten percent of the agreed price. Absent this change, the current wording of this clause, will unnecessarily hinder facilitation of such possible forced sale.

      6.3 Covenant Not to Sell within 10 year period; Exception. Buyer shall not sell the
      Property for ten (10) years from the date of the close of escrow, except as set
      forth herein. If the Buyer decides to sell the Property before said ten (10) year
      period elapses, Buyer must first offer the Property back to the Seller for re-
      purchase for the Purchase Price and, in addition, the reasonable value of any
      improvements made to the Property by Buyer. After said ten (10) year period,
      Buyer may dispose of the Property in any manner it chooses
      .

      Because of this first posting I have done more extensive research. I still believe we can move forward in good faith, which includes correcting the response to discovering hazardous material, and the correct acreage which we had no duty to research before the execution of the purchase and sale contract. The buy-back clause should be either eliminated or revised as my suggestion. The requirement to retain the one room school house in it’s location should be removed. These are all inappropriate, and may have been a good strategy by Mr. Baird when he was playing hard ball, but is no longer now that the City has agreed to a market value price for this property.

      We are now at a stage of this sale where both parties should go beyond an arms length negotiation for maximum economic benefit, to mutual interest in fairness for our common constituents. The issues I raise are based on such fairness, and do not renegotiate the purchase price.

      This group of SavePacificView has succeeded in it’s goal. Now is be time to shift to lobby for removal the residue of the contentious period by refining the contract for the benefit of the people of this city.

      Al Rodbell
      references:
      5.1.7 Hazardous Materials.
      (a)
      To the best of Seller’s
      actual knowledge: (1) no Hazardous Substances
      (as defined herein) have been generated, treated, stored, deposited, disposed of
      or released on the Property, or within any surface or subsurface waters thereof;
      (2) no underground tanks have been located on the Property; and (3) there are
      no substances or conditions in or on the Property which may support a claim,
      cause of action or liability for Seller or Buyer or any third party under any
      Hazardous Substances Laws (as defined herein).

      Full contract of purchase and sale:

      *http://savepacificview.org/wp-content/uploads/2014/05/2014-05-28_Item_10B_-_Consideration_of_Pacific_View_Purchase_Agreement

      • This reply was modified 4 years, 1 month ago by  Al Rodbell.
  • #1800

    Laurie Switzer
    Participant

    thank you for sharing this discussion

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