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MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY
OF SEAL BEACH AND BIXBY RANCH COMPANY
THIS MEMORANDUM OF UNDERSTANDING ( "Agreement ") is made
an entered in the City of Seal Beach, County of Orange, on this
it la day of July, 1997, by and between the City of Seal Beach, a
harter city ( "City "), and Bixby 'Ranch Company, a California
an
limited partnership ( "Bixby ").
RECITALS:
A. Article 27.5 of the Code of the City of Seal Beach,
California and Government Code sections 65864 through 65869.5
authorize the City to enter into binding development agreements
with persons having legal or equitable interests in real property
for the development of such property.
B. Bixby holds fee title in the real property within the
City, more particularly described in Exhibit A, attached hereto
(the "Property ").
C. Bixby intends to submit to the City an application for
a development agreement and all necessary land use permits and •
entitlements to develop on the Property the following uses
(hereinafter "Bixby's intended development "):
1. A low impact "buffer" land use such as a church,
day care center, private school or other noncommercial use
on 15 acres at Seal Beach Boulevard north of Lampson Avenue,
in the northerly portion of the property;
2. A commercial /retail development including a
retail center with an anchor tenant(s) coming from one
or more of the following categories: apparel/
. department store, general merchandising, home
improvement, or supermarket, to be subject to a general
architectural theme approved by the City and specified
in the development agreement, on 23 acres at Seal Beach
Boulevard north of the prolongation of St. Cloud;
3. Recreational uses to be agreed upon on 10 acres at
Seal Beach Boulevard north of Lampson Avenue; and
4. A commercial complex including a hotel and an
assisted senior citizen living housing structure on the land
at the south - easterly corner of Seal Beach Boulevard and
Lampson Avenue.
D. In order to mitigate potential impacts arising from
development of the Property, Bixby has offered to:
1. Dedicate to the City a 3 acre green belt at Seal
Beach Boulevard and Lampson Avenue as a landscaped buffer to
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• act as a gateway along Lampson Avenue leading from the
commercial development to the residential community of
College Park East;
2. Apply for a zone change to change the zoning
designation of the Old Ranch Tennis Club from its existing
commercial designation to Recreational /Golf and offer to
dedicate the Old Ranch Tennis Club facility and underlying
land to the City at no cost to the City. The offer to
dedicate shall remain effective for a period of time to be
established by the development agreement, and the City
Council, at its sole option, may accept the dedication
within that time period. The offer to dedicate shall be
subject to a condition that if at any time within 30 years
after the Old Ranch Tennis Club is accepted by the City, the
City ceases to use it for recreational or community
purposes, the property shall revert to Bixby; and
3. Execute and record covenants on title and other
necessary documents to maintain the Old Ranch Country Club
golf course site, as reconfigured after development of the
Property, as a golf course or open space for 30 years.
E. Bixby has requested that City enter into this Agreement
in order to obtain assurances that the City will process Bixby's
applications in a timely fashion and will conduct public hearings
to consider the applications in good faith.
F. In light of the substantial commitments agreed to by
Bixby pursuant to this Agreement, City desires to give Bixby
assurance that the City will process Bixby's applications in a
timely fashion and will conduct public hearings to consider the
applications in good faith.
G. The City cannot grant approval to Bixby's intended
development, or any portion thereof, and cannot enter into a
development agreement, until after all necessary public hearings
have been conducted and all necessary environmental review has
taken place.
H. City previously drafted a Draft Environmental Impact
Report (DEIR) pursuant to the California Environmental Quality
Act (Public Resources Code §§ 21000, et sea.) in connection with
Bixby's application for a mixed -use project on portions of the
Property. That application was withdrawn by Bixby and the DEIR
was never certified.
I. Although the project that was the subject of that DEIR
was considerably different than Bixby's intended development,
much data prepared for that DEIR is the same as will be required
for environmental review of the intended development, and may be
utilized in determining the environmental impacts arising from
Bixby's intended development, to the extent permitted by law.
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AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises,
obligations and covenants herein contained, the parties hereto
agree as follows:
1. Bixby shall submit an application for a
development agreement and all land use permits and entitlements
required by the City which are necessary to effect the particular
portions of the development to be implemented upon approval of
the development agreement.
2. As part of its application, Bixby shall:
a. Offer to dedicate to the City upon approval
of Bixby's intended development a 3 acre green belt at Seal Beach
Boulevard and Lampson Avenue as a landscaped buffer to act as a
gateway along Lampson Avenue leading from the commercial
• development to the residential community of College Park East;
b. Apply for a zone change to change the zoning
designation of the Old Ranch Tennis Club to Recreational Golf;
c. Offer to dedicate the Old Ranch Tennis Club'
facility and underlying land to City at no cost to City. The
offer to dedicate shall remain effective for a period of time to
be established by the development agreement, and the City
Council, at its sole option, may accept the dedication within
that time period. The offer to dedicate shall be subject to a•
condition that if at any time within 30 years after the Old Ranch
Tennis Club is accepted by City, City ceases to use it for
recreational or community purposes, the property shall revert to
Bixby;
d. Execute and record covenants on title and
other necessary documents to maintain the Old Ranch golf course
site, as reconfigured after development of the Property, as a
golf course or open space continuously for 30 years from the date
of execution of the development agreement;
e. At no cost to the City, provide approximately
1000 square feet of space for a police substation at a location
on the east side of Seal Beach Boulevard; and
f. Agree to .fund all legally required mitigation
measures, development fees, impact fees and other costs of
development reasonably required by the City and imposed upon
development within the City as of the date of Bixby's
application.
3. Both parties acknowledge that Bixby's intended
development is subject to change and that Bixby's offer outlined
in Section 2 is contingent upon it receiving approval of a
development agreement after all necessary public hearings and
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environmental review. The proposed development agreement will
provide more detail as to the nature of Bixby's proposed
development and all mitigation measures, dedications, development
fees, traffic impact fees and other responsibilities of Bixby.
Such development agreement will, inter alia, ensure that Bixby's
development, if approved, will be of a nature and quality
acceptable to the City and will provide to Bixby specified
"vested rights" to develop its property in accordance with the
terms and provisions of that development agreement. In no event
shall this Memorandum of Understanding limit the ability of the
parties to agree, as part of the development agreement, to other
uses and additional mitigation measures, fees and
responsibilities of Bixby that may become desirable or necessary
after the City conducts public hearings and environmental review.
4. The parties shall cooperate fully in meeting as
frequently as is required, or as frequently as may be reasonably
requested by either party, and in providing prompt responses to
• inquiries and requests for information.
5. To the extent permitted by law, the data and
technical studies prepared for the DEIR for Bixby's previous
project may be considered by the City in undertaking
environmental review of Bixby's intended development.
6. The City shall process Bixby's applications in a
timely fashion and shall conduct public hearings to consider the
application in good faith. Attached hereto as Exhibit B is a
proposed schedule for the processing of Bixby's proposed
development agreement and development applications. The City
will use its best efforts to expedite the processing of Bixby's
applications in accordance with the schedule set forth in
Exhibit B.
7. Nothing contained in this Memorandum of
Understanding may be construed to mean that the City is agreeing
or has agreed to exercise its discretionary authority in support
of any approvals or entitlements that may be determined to be
required.
8. Bixby agrees to reimburse the City in full for all
costs and expenses incurred in connection with this Agreement,
the proposed development agreement and Bixby's applications, so
long as this agreement shall remain in effect. Bixby agrees to
reimburse the City in full for all personnel (full -time and part -
time positions) staff costs, including, without limitation,
City's attorney's fees, any consultant's fees, and other costs
related to the preparation and completion of this Agreement,
Bixby's proposed development agreement, any necessary
environmental review and fiscal impact analysis, and the
processing of Bixby's proposed applications for development
entitlement in accordance with the schedule of costs set forth in
Exhibit C. The City hereby acknowledges that prior to hiring any
consultants, the City Manager will determine whether it is
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necessary to engage the services of consultants after reviewing
Bixby's proposed development applications and all environmental
and fiscal data previously compiled in connection with Bixby's
prior applications. In the event the City Manager determines
that it is necessary to engage the services of consultants, he
will, prior to such engagement, notify Bixby of such
determination and will provide Bixby a standard reimbursement
schedule substantially in the form set forth in Exhibit C. Bixby
hereby acknowledges that the execution of this agreement prior to
retention of consultants is necessary to accommodate expeditious
processing of Bixby's development application and, on that basis,
Bixby hereby waives any defense to the enforcement of this
agreement which may be based upon or arise out of the lack of a
pre- existing agreement by and between the City and consultants.
Bixby agrees to reimburse the City according to the following
schedule:
a. A lump -sum deposit of $10,000.00 shall be
• paid by Bixby to the City upon approval of this agreement by the
City Council and execution by the parties. Said sum will be used
to reimburse the City's staff support costs until exhausted. In
the event that City costs to be reimbursed by Bixby exhaust the
original $10,000.00 deposit, such additional costs shall be
reimbursed by Bixby to the City on a monthly basis, within twenty
(20) days of receipt of an invoice from the City, describing in
reasonable and understandable detail the services rendered by
City staff personnel and consultants, along with reimbursable
costs. Any balance due Bixby at the conclusion of the studies
W1a11 be promptly remitted upon final completion of the above
referenced program activities.
b. Thereafter, the City shall within fifteen
(15) days after the last calendar day of each month, submit an
invoice to the Bixby itemizing tasks performed and reimbursable
expenses for the previous month. Bixby shall pay within twenty
(20) days of receipt the amount set forth in the monthly invoice
submitted to Bixby by the City describing in reasonable and
understandable detail the services rendered. Bixby understands
and agrees that the City's processing of the Development
Agreement shall be immediately suspended if at any time Bixby's
payment is not received by the City within the time frame
specified herein.
The City and Bixby hereby acknowledge and agree that
Bixby's duty to reimburse the City is not contingent upon the
City's approval or disapproval of the proposed Development
Agreement or proposed development applications or upon the result
of any action of the City. Moreover, the execution of this
Agreement does not in any way obligate the City to approve any
proposed development, or give rise to any vested rights or land
use entitlement to Bixby, or give rise to any cause of action for
damages in the event the City does not approve Bixby's
development applications, or any portion thereof, after
conducting public hearings.
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• •
9. a. Bixby shall indemnify, hold harmless and
defend the City, and any of its officers, employees or agents,
from any and all claims, liabilities, obligations and causes of
action of whatsoever kind or nature for injury to, or death of,
any person (including officers, employees and agents of the
City), and for injury or damage to or destruction of property
(including property of the City), resulting from any and all
actions or omissions of Bixby's employees, agents or invitees, or
any of its subcontractors or any of such subcontractor's
employees, agents or invitees pursuant to this Agreement.
b. In the event of any legal action instituted
by a third party or other governmental entity or official
challenging the validity of any provision of this Agreement,
Bixby and the City shall cooperate in defending any such action.
The City shall notify Bixby of any such legal action against the
City within ten (10) working days after the City receives service
of process, except for any petition for injunctive relief, in
which case City shall notify Bixby immediately upon receipt.
Bixby shall indemnify, hold harmless and defend the City, and any
of its officers, employees or agents for any claim or lawsuit
brought to challenge the validity or enforcement of this
Agreement instituted by a third party or other governmental
entity or official challenging the validity of any provision of
this Agreement; provided, however, that if the City fails
promptly to notify Bixby of any legal action against City or if
the City fails to cooperate in the defense, Bixby shall not
thereafter be responsible for the City's defense. Bixby shall
reimburse the City of all defense costs, including court costs,
attorneys fees, and expert witness fees. Bixby shall pay all
monetary awards, judgments, verdicts, courts costs and attorneys
fees that may be awarded in such action. The City shall be
entitled to select counsel to conduct its defense on any such
action. Notwithstanding the foregoing, Bixby may terminate this
Agreement, including its obligations under this subsection, in
accordance with the provisions of paragraph 12, below.
10. Bixby shall not assign any interest in this
Agreement or a portion of this Agreement without the prior
written consent of the City, which will not be unreasonably
withheld.
11. Failure by the City or Bixby to perform any term
or provision of this Agreement for a period of thirty (30) days
from the receipt of written notice thereof from the other, unless
any such failure is the result of an unstayed court order, shall
constitute a default under this Agreement, subject to extensions
of time by mutual consent in writing. Said notice shall specify
in detail the nature of the alleged default and the manner in
which said default may be satisfactorily cured. If the nature of
the alleged default is such that it cannot reasonably be cured
within such 30 -day period, the commencement of the cure within
such time period and the diligent prosecution to completion of
the cure shall be deemed a cure within such period.
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•
Subject to the foregoing, after notice and expiration
of the 30 -day period without cure, the notifying party, at its
option, may institute legal proceedings pursuant to this
Agreement and /or give notice of intent to terminate the
Agreement.
12. This Agreement shall terminate upon adoption by
the City of a development agreement for the proposed project.
Notwithstanding the foregoing, Bixby may earlier terminate this
Agreement by withdrawing its application(s): (a) if Bixby
determines (i) that the anticipated costs of processing the
application are not justified by the economic return expected on
the development, (ii) that it cannot reach agreement with the
City on major issues relating to the proposed development, (iii)
that actions by a third party or parties may render the
development uneconomic or otherwise incapable of completion, or
(iv) that the terms and conditions proposed to be implemented in
the development agreement or in any other application are such as
to render the Property less economically valuable than under the
laws and regulations of the City existing as of the date of this
Agreement; or (b) if the City takes action, whether voluntarily
or compelled by force of law, which is inconsistent with the
project as proposed, and as conceptually described in the
recitals hereto. Termination of this Agreement by Bixby under
this section shall not relieve Bixby of its obligation under
Section 8 to pay costs incurred by the City prior to the date of
notice of such termination.
13. This Agreement is deemed to have been prepared by
all of the parties hereto, after consulting with legal counsel,
and any uncertainty or ambiguity herein shall not be interpreted
against the drafter, but rather, if such ambiguity or uncertainty
exists, shall be interpreted according to the applicable rules of
interpretation of contracts under the law of the State of
California.
14. The persons signing this Agreement warrant that
each of has the authority to execute this Agreement on
behalf of the party on whose behalf said person is purporting to
execute this Agreement, and that this Agreement is a binding
obligation of said parties.
15. This Agreement sets forth and contains the entire
understanding and agreement of the parties, and there are no oral
or written representations, understandings or ancillary
covenants, undertakings or agreements which are not contained or
expressly referred to herein. No testimony or evidence of any
such representations, understandings or covenants shall be
admissible in any proceeding of any kind or nature to interpret
or determine the terms or conditions of this Agreement.
16. This Agreement shall be construed and enforced in
accordance with the laws of the State of California.
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17. Any notice shall be in writing and given by
delivering the same in person or by sending the same by
registered, certified or express mail, return receipt requested,
with postage prepaid, to the following addresses:
City: City Manager Keith Till
City of Seal Beach
211 8th Street
Seal Beach, California 90740
With a copy to: City Attorney Quinn M. Barrow
Richards, Watson & Gershon
333 South Hope Street, 38th floor
Los Angeles, California 90071 -1469
Bixby: Bixby Ranch Company
3010 Old Ranch Parkway, Suite 100
Seal Beach, CA 90 -2750
Attn: Ronald A. Bradshaw
Either City or Bixby may change its mailing address at any time
by giving written notice of such change to the other in the
manner provided herein at least ten (10) days prior to the date
such change is effected. All notices under this Agreement be
deemed given, received, made or communicated on the date personal
delivery is effected or, if mailed, on the delivery date or
attempted delivery date shown on the return receipt.
IN WITNESS WHEREOF, Bixby and City have executed this
Agreement as of the date first hereinabove written.
CITY OF SEAL BEACH
• ' •
By: !;.w ' 4 is
• or
ATTES : - \ Ad"
•
By: 2‘_. i
400 Cler"
APP AS TO FORM:
B .
927t gat/14'1
z.ty Attorney
(Signatures continue)
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• .
Bixby Ranch Company,
a California Limited Partnership
By: Bixby Management Corporation,
a Delaware Corporation, its
Managing General Partner
By:
Its: Senior Vice President 9 • $ • 1 7
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EXHIBIT A
BIXBY PROJECT
REAL PROPERTY DESCRIPTION
• Legal Description
Northerly Site: In the City of Seal Beach, County of Orange, State
of California, being Parcel 1 of the map filed in Book 16, Page 14 of
Parcel Maps, in the Office of the County Recorder of said county,
excepting therefrom Parcel 1 of the map filed in Book 79, Page 49 of .
Parcel Maps, in the Office of the County Recorder of said county,
and being an undivided portion of the Northeast Quarter of Section
31, Township 4 South, Range 11 West, San Bernardino Base and
Meridian, in the Rancho Los Alamitos, as per the map filed in Book
14, Page 31 of Deeds, in the Office of the County Recorder of said
county.
Southerly Site: In the City of Seal Beach, County of Orange, State
of California, being Parcels 1, 2, and 3 of the map filed in Book 15,
Page 11 of Parcel Maps, in the Office of the County Recorder of said
county.
•
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EXHIBIT B
BIXBY PROJECT
ANTICIPATED PROJECT SCHEDULE
Activity to be Date Activity
Undertaken to Occur
Submission of Application August 15, 1997
Determination of Completeness August 25, 1997
Preparation of "Notice of Preparation of EIR/ - September 3, 1997
Initial Study
End of Comment Period on NOP October 2, 1997
Completion of Screencheck
Draft EIR October 24, 1997
City Internal Review of
Screencheck Draft EIR November 3, 1997
Preparation/Printing of Draft EIR November 8, 1997
Beginning of Public Comment
Period on DEIR November 13, 1997
Public Hearing before EQCB on Draft EIR
(Special Meeting) December 4, 1997
Note) EQCB may determine to conduct more than one (1) public hearing on the
Draft Environmental Impact Report within the 45 day public comment
period
Public Comment Period on DEIR Ends
•
December 29, 1997
Preparation of Response to Comments
on DEIR January 9, 1997
• C:1My DocumentalBIXBYIAnticipated Project Schedule.doc1LW108 -07 -97
• •
•
Bixby Project
Tentative Schedule of Actions
August, 1997
Activity to be Date Activity
Undertaken to Occur
Public Hearing before EQCB
on Final EIR (Special Meeting) January 23, 1998
Note) EQCB may determine to conduct more than one (1) public hearing on the
Final Environmental Impact Report
Final EIR and Project Public
Hearing(s) before Planning Commission
(Special Meeting) February 5, 1998
Note) Planning Commission may determine to conduct more than one (1) public
hearing on the proposed development plan and the Final Environmental
Impact Report
Final EIR and Project Public
Hearing(s) before City Council February 25, 1998
Note) City Council may determine to conduct more than one (1) public hearing on
the proposed development plan and the Final Environmental Impact Report.
Anticipated Project Schedule.doc
2
EXLIIBIT C
BIXBY PROJECT
ANTICIPATED SCHEDULE OF COSTS •
Presented below are the anticipated costs for processing an application for land use entitlements in
accordance with Bixby's intended development, as set forth in Recitals C and D of the
"MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF SEAL BEACH AND
BIXBY RANCH COMPANY ", dated August , 1997.
Cost Category Anticipated Cost
City Staff Costs $ 45,000.00
City Attorney Costs $ 50,000.00
EIR Consultant Costs $ 215,000.00
Fiscal Impact Consultant Costs $ 10,000.00
Total Anticipated Costs $320,150.00
EIR Consultant Cost Summary
Consultant Anticipated Cost
Culbertson, Adams & Associates $ 127,200.00
•
GSL Associates $ 10,000.00
Linscott, Law & Greenspan $ 36,150.00
Mestre Greve Associates $ 10,000.00 •
Geographics $ 8,000.00
Pacific Southwest Biological Services $ 5,000.00
Integrated Urban Forestry $ 800.00
Printing/Reproduction $ 18,000.00
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