HomeMy WebLinkAboutMAKALLON ATLANTA HUNTINGTON BEACH - 2002-05-06DATE:
•
CITY OF HUNTINGTON' BEACH
2000 MAIN STREET CALIFORNIA 92648
OFFICE OF THE CITY CLERK
CONNIE BROCKWAY
CITY CLERK
LETTER OF TRANSMITTAL OF ITEM APPROVED BY THE CITY COUNCIL/
REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH
May 13, 2002
TO: Makallon Atlanta Huntington Beach, LLC ATTENTION: Grant Freeman
Name
4100 MacArthur Bo tl va r1, Stp. 150 DEPARTMENT:
Street
Newport Beach, CA 92660 REGARDING: Reimbursement
City, State, Zip
Agreement
See Attached Action Agenda Item E-12 Date of Approval 5 / 6 / 02
Enclosed For Your Records Is An Executed Copy Of The Above Referenced Agenda Item.
Remarks:
Connie Brockway
City Clerk
Attachments: Action Agenda Page
x Agreement
x
Bonds
Insurance
RCA
Deed
Other
CC: H. Zelefsky
Planning
x
x
Name
Department
RCA
Agreement
Insurance Other
M.B. Broeren
Planning
x
x
Name
Department
RCA
Agreement
Insurance Other
Name
RCA
Agreement
Insurance Other
Department
Name
RCA
Agreement
Insurance Other
Department
Name
RCA
Insurance
Department
k
( Telephone: 714-536-5227 )
Council/Agency Meeting Held: OS- 06 �.02
Deferred/Continued to:
Ap roved ❑ Conditionally Approved ❑ Denied
tL-f- tdytlerk' Signature
Council Meeting Date: May 6, 2002
Department ID Number: PL02-14
x
CITY OF HUNTINGTON BEACH o
REQUEST FOR ACTION
Cr
SUBMITTED TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
--
lJ >
SUBMITTED BY: RAY SILVER, City Administrator dPW
PREPARED BY: HOWARD ZELEFSKY, Director of Planning n
SUBJECT: APPROVE A REIMBURSEMENT AGREEMENT WITH MAKALLON
ATLANTA HUNTINGTON BEACH, LLC FOR PREPARATION OF
ENVIRONMENTAL DOCUMENTATION FOR THE PACIFIC CITY PROJECT
Statement of Issue, Funding Source, Recommended Action, Alternative Action(s), Analysis, Environmental Status, Attachment(s)
Statement of Issue:
Transmitted for City Council's consideration is a request to enter into a reimbursement
agreement with Makallon Atlanta Huntington Beach, LLC ("Makar") to reimburse the City for
preparation of environmental documentation for the Pacific City Project. The agreement is in
the amount of $486,620, which will cover the costs of the City's environmental consultant
contract with EIP Associates for the project.
Funding Source:
Not applicable.
Recommended Action:
Motion to:
"Approve and authorize the Mayor and City Clerk to execute the Reimbursement Agreement
with Makallon Atlanta Huntington Beach, LLC for Preparation of Environmental
Documentation for the Pacific City Project."
• REQUEST FOR ACTION •
MEETING DATE: May 6, 2002 DEPARTMENT ID NUMBER: PL02-14
Alternative Action(s):
The City Council may make the following alternative motions:
"Deny the Reimbursement Agreement between the City and Makallon Atlanta Huntington
Beach, LLC."
2. "Continue the item and direct staff accordingly."
Analysis
Makallon Atlanta Huntington Beach, LLC ("Makar") owns a 31-acre vacant property bounded by
Pacific Coast Highway, ' First Street, Huntington Street and Atlanta Avenue. Makar has been
engaged in conceptual site planning for the property over the last several years. On March 27,
2002, Makallon Atlanta Huntington Beach, LLC submitted an environmental assessment
application for future development of the site (now called ".Pacific City").
In preparation for Makar's submittal, the City solicited proposals from environmental consulting
firms for preparation of environmental documentation and entered into a .contract with EIP
Associates. The contract amount is $486,620, including contingency, and is accounted for in
the Planning Department's budget contractual services account.
Makar has agreed to fully reimburse the City for the costs associated with preparation of the
environmental documentation. The attached Reimbursement Agreement sets forth the terms of
the reimbursement, with an initital deposit of $100,000 to be made to the City within 10 days of
approval of this Agreement. Additional deposits will be made pursuant to the Agreement. In
addition, Makar will be required to pay normal application fees associated with the
environmental documentation.
Staff recommends City Council approve the Reimbursement Agreement with Makallon Atlanta
Huntington Beach, LLC, and authorize the Mayor and City Clerk to execute the document.
Environmental Status:
Projects over which public agencies exercise ministerial authority, such as this agreement are
categorically exempt from the California Environmental Quality Act.
Attachment(s):
RCA Author: MBB
PL02-14 -2- 4/19/2002 11:16 AM
ram'
ATTACHMENT 1
REIMBURSEMENT AGREEMENT BETWEEN THE
CITY OF HUNTINGTON BEACH AND MAKALLON ATLANTA
HUNTINGTON BEACH, LLC FOR COSTS INCURRED FOR
PACIFIC CITY PROJECT ENTITLEMENT AND ENVIRONMENTAL PROCESSING
THIS AGREEMENT ("Agreement") is made and entered into this 6th day
of = : May _. 2002, by and between the City of Huntington Beach, a
municipal corporation of the State. of California, hereinafter referred to as "CITY," and Makallon
Atlanta Huntington Beach, LLC hereinafter referred to as "DEVELOPER."
WHEREAS, DEVELOPER is proposing to develop an area within the City. of
Huntington Beach known as Pacific City (District 7 and 8a of the Downtown Specific Plan)
located between 1st and Huntington Streets on Pacific Coast Highway (the "Project'); and
DEVELOPER is required to submit applications to CITY for approval of various
discretionary matters, including Commercial Master Site Plan, Conceptual Master Plan and other
land use approvals ("entitlements") and environmental assessments implementing the Downtown
Specific Plan; and
DEVELOPER desires that all entitlements, applications, land use approvals and
environmental documentation be processed expeditiously as possible; and
DEVELOPER desires to have CITY commit sufficient .resources to enable the
expeditious processing of entitlement applications and other necessary planning review and
documentation; and
Pursuant to California Government Code Section 87103.6, DEVELOPER is allowed to
defray the cost of processing development applications, entitlements and environmental review
by reimbursing CITY for such costs.
NOW, THEREFORE, in consideration of the promises and agreements hereinafter made
and exchanged, the parties agree as follows:
02agree/pacificcity/4/18/02 I
1. PAYMENT
DEVELOPER agrees to reimburse CITY for its outside professional services for
entitlement application processing and environmental document review of the Project as follows:
A. DEVELOPER shall post a deposit in the amount of One Hundred
Thousand Dollars ($100,000) with the CITY within ten (10) days following the adoption
of this Agreement;
B. DEVELOPER agrees that invoices, submitted to the CITY by professional
planning firms or other CITY consultants will be paid out of such deposit, and within ten
(10) days of receiving notice from the CITY that such deposit amount has been reduced
to an amount of Twenty -Five Thousand Dollars ($25,000), DEVELOPER will replenish
the balance by depositing additional funds to reinstate the amount of One Hundred
Thousand Dollars ($100,000).
C. In the event that DEVELOPER fails to maintain the One Hundred
Thousand Dollar ($100,000) deposit as required in Section 1(B) of this Agreement,
DEVELOPER shall, upon written notice, pay the entire balance due (the difference
between all deposits paid to that date and the total actual amount) for professional
planning services under this Agreement.
D. DEVELOPER acknowledges that an estimated amount for the services
referred to above has been included as Attachment A to this Agreement, and is the
CITY's best estimate of the costs for the services described therein, and that the actual
cost of these and other services may be higher. In the event that the actual cost of such
services exceeds the estimated costs, DEVELOPER agrees to pay the actual cost within
ten (10) days after receiving CITY's invoice for same. In the event that actual costs of
02agree/paciticcity/4/18/02 2
r�
such planning and consultant services are less than the estimated costs, CITY will refund
the difference between the actual and estimated costs.
2. STATEMENT OF INTENT
The amounts reimbursed to CITY pursuant to this Agreement will help defray CITY's
cost of the professional planning services required to process DEVELOPER's various entitlement
applications and environmental documentation as set forth in Section 1 herein.
3. EXCLUSIVE CONTROL BY CITY
CITY will maintain exclusive control over the work described herein. Nothing in this
Agreement shall be deemed to:
A. Require CITY to approve any plan, proposal, entitlement, application or
request submitted by DEVELOPER.
B. Limit, in any respect whatsoever, CITY's sole authority to direct and
control the planner(s) assigned to DEVELOPER's various development projects.
C. Impose any liability on CITY different from any liability as may otherwise
be established by law.
4. CITY EMPLOYEES AND OFFICIALS
DEVELOPER shall employ no CITY official nor any regular CITY employee in the
work performed pursuant to this Agreement. No officer or employee of CITY shall have any
direct financial interest in this Agreement.
5. TIME IS OF THE ESSENCE
CITY agrees that time is of the essence for the work to be performed by the professional
planning firms to be funded pursuant to this Agreement and therefore, ten (10) days prior to the
initial deposit required pursuant to Section 1 of this Agreement, DEVELOPER shall submit a list
02agree/pacificcity/4/18/02 3
of entitlement and planning activities to be performed by the CITY for approval by the Planning
Director.
6. TERMINATION OF AGREEMENT
Either party may terminate this Agreement at any time with or without cause, upon ten
(10) days prior written notice to the other party. DEVELOPER shall be responsible for all costs
incurred prior to termination, including any and all costs incurred after notice of termination has
been given up to the date of actual termination.
7. HOLD HARMLESS
DEVELOPER hereby agrees to protect, defend, indemnify and hold harmless CITY, its
officers, elected or appointed officials, employees, agents and volunteers from and against any
and all claims, damages, losses, expenses, demands and defense costs (including, without
limitation, costs and fees of litigation of every nature or liability of any kind or nature) arising
out of or in connection with DEVELOPER's performance of this Agreement or its failure to
comply with any of its obligations contained in this Agreement by DEVELOPER, its officers,
agents or employees except such loss or damage which was caused by the negligence or willful
misconduct of CITY. DEVELOPER's indemnification and defense obligations include, but are
not limited to, all claims, writs, damages, losses, expenses, demands and defense costs related to
the preparation of environmental documentation related to the Project and/or any approval or
denial of the Project. CITY shall be reimbursed by DEVELOPER for all costs and reasonable
attorney's fees incurred by CITY in enforcing this obligation. DEVELOPER will conduct all
defense at its sole cost and expense, and CITY shall approve selection of DEVELOPER's
counsel, which approval will not be unreasonably delayed or withheld. This indemnity shall
apply to all claims and liability regardless of whether any insurance policies are applicable. The
02agree/pac i fi cc i ty/4/1 8/02 4
policy limits do not act as a limitation upon the amount of indemnification to be provided by
DEVELOPER.
E:�II�i:�Tl
This Agreement shall be effective on the date of its approval by the City Council of
CITY. This Agreement shall expire when terminated as provided herein, or when all services
contemplated hereunder have been completed.
9. NOTICES
Any notices, certificates, or other communications hereunder shall be given either by
personal delivery or overnight courier to DEVELOPER or to CITY at the addresses noted below,
or by enclosing the same in a sealed envelope, postage prepaid, and depositing the same in the
United States mails, to the addresses specified below; provided that CITY and DEVELOPER, by
notice given hereunder, may designate different addresses to which subsequent notices,
certificates or other communications will be sent, which will be deemed given when received:
TO CITY:
City of Huntington Beach
ATTN: Planning Director
2000 Main Street
Huntington Beach, CA 92648
10. MODIFICATION
TO DEVELOPER:
Makallon Atlanta Huntington Beach, LLC
ATTN: Grant Freeman, CFO
4100 MacArthur Boulevard, Suite 150
Newport Beach, CA 92660
No waiver or modification of this Agreement shall be valid unless in writing and duly
executed by both parties.
02agree/pacificcity/4/18/02 5
11. SECTION HEADINGS
The titles, captions, section, paragraph and subject headings, and descriptive phrases at
the beginning of the various sections in this Agreement are merely descriptive and are included
solely for convenience of reference only, and do not interpret, define, limit or describe, or
construe the intent of the parties or affect the construction or interpretation of any provision of
this Agreement.
12. INTERPRETATION OF THIS AGREEMENT
This Agreement shall in all cases be construed as a whole; according to its fair meaning,
and not strictly -for or against any of the parties. -If any provision of this Agreement is held by an
arbitrator or court of competent jurisdiction to be unenforceable, void, illegal or invalid, such
holding shall not invalidate or affect the remaining covenants and provisions of this Agreement.
No covenant or provision shall be deemed dependent upon any other unless so expressly
provided. As used in this Agreement, the masculine or neuter gender and singular or plural
number shall be deemed to include the other whenever the context so indicates or requires.
Nothing contained herein shall be construed so as to require the commission of any act contrary
to law, and wherever there is any conflict between any provision contained herein and any
present or future statute, law, ordinance or regulation contrary to which the parties have no right
to contract, then the latter shall prevail, and the provision of this Agreement which is hereby
affected shall be curtailed and limited only to the extent necessary to bring it within the
requirements of the law.
I3. DUPLICATE ORIGINALS
The original of this Agreement and one or more copies hereto have been prepared and
signed in counterparts as duplicate originals, each of which so executed shall, irrespective of the
02agree/paciticcity/4/18/02 6
date of its execution and delivery, be deemed an original. Each duplicate original shall be
deemed an original instrument as against any party who has signed it
14. IMMIGRATION
DEVELOPER shall be responsible -for full compliance with the immigration and
naturalization laws of the United States and shall, in particular, comply with the provisions of the
United States Code regarding employment verification.
15. LEGAL SERVICES SUBCONTRACTING PROHIBITED
DEVELOPER and CITY agree that CITY is not liable for payment of any subcontractor
work involving legal services, and that such legal services are expressly outside the scope of
services contemplated hereunder. DEVELOPER understands that pursuant to Huntington Beach
City Charter Section 309, the City Attorney is the exclusive legal counsel for CITY; and CITY
shall not be liable for payment of any -legal services expenses incurred by DEVELOPER.
16. ATTORNEY'S FEES
Except as expressly set forth in Section 7 of this Agreement, in the event suit is brought
by either party to construe, interpret and/or enforce the terms and/or provisions of this
Agreement or to secure the performance hereof, each party shall bear its own attorney's fees.
17. GOVERNING LAW
This Agreement shall be governed and construed in accordance with the laws of the State
of California.
18. ENTIRETY
This Agreement, and the attached exhibits, contains the entire agreement between the
parties respecting the subject matter of this Agreement and supercedes all prior understanding
02agree/pacificcity/4/18/02 7
and agreements whether oral or in writing between the parties respecting the subject matter
hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by and through their. authorized offices the day, month and year first above written.
MAKALLON ATLANTA HUNGTINGTON
BEACH, LLC,
By: MAKAHB, LLC_ , a Delaware limited
liability company,
By: MAKALLON, LLC, a Delaware limited
liability company, its Member,
By: Makar Properties, LLC, a Delaware
limited liability company, its Managing
Member
By:_�
Grant . Freeman, Chief Financial
Officer
1;7S►IFAIC TA91l7_VIO7_1»
e:z� _ a.
City Admitfistrator
CITY OF HUNTINGTON BEACH, a
municipal corporation of the State of
Californi
ke�
Mayor
ATTEST:
CityfClerk 6T- TZ
APPROVED AS TO FORM:
City Attorney
Z
INIT ED A PROVED:
Di ector of Planning
4olo-
02agree/pacificcity/4/18/02 "
STATE OF CALIFORNIA )
ss.
COUNTY OF ORANGE )
On April 19, 2002, before me, Lesly Alana Gunz, Notary Public, personally
appeared Samuel H. Weissbard and Grant M. Freeman, personally known to me (Of
py-eved to ,r „ the basis of tis f , eery e videnee to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that husk°/they
executed the same in hisihffftheir authorized capacity(ies), and that by his4iff/their
signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
LEsLY AU►NA GUNZ
Commbdon 81294M
Notary Pub5c - Catflanb
Orange County
%7MVCMM.B0MFeb23,2M5
(Seal)
WITNESS my hand and official seal.
Signature
ATTACHMENT A
REVISED PROPOSED COST ESTIMATE (JANUARY 26, 2002)
PACIFIC CITY EIR
SCOPE OF WORK ITEM
CCO
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EIP LABOR COSTS
n/a Costs Incurred Between 1998 and January 2002
37
1 Project Initiation and Organization
6
4
- 8
__.-..
8
2 Peer Review of Applicant's Technical Studies
32
6
12
--
-
3 Prepare Annotated Initial Study
16
-_27
-
-
_-
---
--
-
4 Prepare & Distribute IS/NOP
8
32
-
- -_
4
6-
- -
5 Prepare Administrative Draft EIR -
---
-_-_
100 -_-
--
200-
- -
-
A Introduction
2
4
B Summary of Impacts and Mitigation Measures
_
--
4
------
- 16--
----
-
- ------
---
C Project Description
2
2
24
2
4
_- -_
D Effects Found Not to Be Significant _
E Impacts/Mitigation Measures
Land Use and Planning
16
32
Visual Quality and Aesthetics
16-
32------
--._--
-- --
-. _
Public Services, Utilities, and Service Systems
6
--
60
- -- _-
Eopulation and Housing
4
4
36
Traffic, Circulation, and Parking
6
24
-
_--
-
Air Quality,
4
---
-.-.-
20
—
Noise
4 _
-----
-- --
Energy and Mineral Resources
4
- 8
_20
Geology and Soils
2
32
-----
---.. _---
-----
Hazardous Materials
4
24
Hydrology and Water Quality--
2
24
Biological Resources
Cultural Resources
--
4
- 2
__ 2
-
24
- _
--32
- -
Cumulative Impacts
8
8
8
- 8
16 _-
4
8
F Growth -Inducing and Irreversible Impacts
2
4
8
_- 16
G Signifcant Unavoidable Impacts
8
2
24
24
4
_- 4
8
2
4
H Project Altematives
List of Organizations and Persons Consulted
1
2
J References
2
8
K Preparers of the Environmental Document
1
1
L Prepare Document in PDF Format (web posting)
_
-'—
_
__._.._.....--
24
4 Prepare Draft EIR
12
8
40
16
24
24
8---_-_-----_8-_-----_'"_-40
32..._-_--...._-4
5 Prepare Administrative Final EIR
80
24
120
24
24
60
24
24
80
40
4
6 Prepare Final EIR
40
8_
32--
6 _.-.-
-6
-- 24
_8.-._.._..--_...._.
6
10
16
4
7 Meeting Attendance (4 hours per meeting)
Meetings with City staff mtgs)
120
24
40
40
_ —,
-
Public Workshops (4 mtgs)
16
16_-__-
16
REVISED PROPOSED COST ESTIMATE (JANUARY 26, 2002)
PACIFIC CITY EIR
Committee Meetings (4 mtgs)
16
16
16—
— _
Scoping Meeting 1 mt
4
4
_
4
Planning Commission Study Sessions 3 m s
12
12
__ 12_—
Planning Commission Public Hearings Q mt s)
12
12
12
City Council Study Sessions (3 mt
12
12
12
12
_ 12--
12
----
------------- ----....------.....---
City Council Public Hearings (3 mtgs)
- -
Coastal Commission Study Sessions/Staff Mt 2 mtgs)
8
8
8
Coastal Commission Public Hearin 2 mtgs)
a
8
S
8 Pmject Management & General Coordination_
Policy and Planning Management —
18
8
—_ -- ---_— -- — --
Technical Management
18
8
General Project Administration
24--
9 Prepare Mitigation Monitonng Program
1
6
24
10 Prepare Certification and Finding Documents
2
24
24
Total Hours
Hourly Rate
459
$ 160
228
$ 160
524
$ 130
323
$ 95
233
$ 85
280
$ 75
66
$ 130
114
$ 95
234
$ 65
294
$ 65
54
$ 40
TOTAL EIP LABOR
$ 73,440
$ 36,480
$ 68,120
$ 30,685
$ 19,805
$ 21,000
$ 8,580
$ 10,830
$ 15,210
$ 19,110
$ 2,160
EIP DIRECT EXPENSES
Reproduction 190 bound documents average $60/doc.
Mileage
Delivery/Postage
Photos/Graphics
—
Miscellaneous
10% administrative fee
Subtotal - Expenses
-- - -- .-- - ---
TOTAL EIP BUDGET
SUBCONSULTANT EXPENSES
LSA(Traffic)
'
Geotechnical Consultants (Geologic Issues
Tetra Tech/Simons Li & Associates H drol !Water
MIG
10% administrative fee
Subtotal - Technical Studies
GRAND TOTAL - WITHOUT CONTINGENCIES
20% Contingency Fee - Meetings
Assumes 20% of $78.120 (Tasks 7 and 8)
Assumes 20% of $19,690 (Subtotal - Expenses)
Assumes 20% of $365.870 overall budget); allows for annual rate increases and any other unforeseen expenses, such as a more extensive RTC effort
20% Contingency Fee - Deliverables
20% Contingency Fee - Schedule/Overall Budget
GRAND TOTAL - WITH CONTINGENCIES
0
Pape 2
REVISED PROPOSED COST ESTIMATE (JANUARY 26, 2002)
PACIFIC CITY EIR
0
0
H
,o
c�
U W
o!
~
a
N
O
U
37
$ 5,920
$ 5,920
26
$ 3,240
$ 3,240
50
7.250
$ 7,250
43
_$
$ 5,125
$ 5,125
52
$ 5,050
$ 5,050
316
$ 20,140
$ 93,935
6
$ 560
20
$ 1,720
28
$ . 3,760
6
$ 560
48
$ 5.600
48
$ 5,600
66
$ 5,280
44
$ 4,220
30
$ 3,060
24
$ 2,420
24
$ 2.420
36
$ 3,840
34
$ 2,980
28
$ 2.560
26
$ 2,300
34
$ 2_980
30
$ 3,180
60
$ 6,240
_ -----
30
$ 3,360
_
6
$ 560
_
74
$ 8,260
_
3
$ 300
10
$ 860
2
$ 215
_
24
$ 960
216
$ 20,400
_
$ 20.400
524
$ 55.920
$ 55.920
160
$ 18,180
$ 18,180
$ 76,900
32.0401
48
$ 7,200
is
•
PW 3 ram.:,.,,.,,:>v,,.
REVISED PROPOSED COST ESTIMATE (JANUARY 26, 2002)
PACIFIC CITY EIR
48
$ 7,200
12
$ 1,660
$ 5,400
_
_36
36
5,400
_
36
_$
$ 5,400
36
$ 5,400
24
$ 3,600
24
$ 3,600
$ 10,960
_
26
$ 3,920
26
$ 3,920
24
$ 3,120
31
$ 2,740
$ 2,740
50
$ 5,720
$ 5,720
2,809
$ 311,340
$ 311,340I
•
•
Pape 4
RCA ROUTING SHEET
INITIATING DEPARTMENT:
Planning
SUBJECT:
APPROVE A REIMBURSEMENT AGREEMENT WITH
MAKALLON ATLANTA HUNTINGTON BEACH, LLC FOR
PREPARATION OF ENVIRONMENTAL DOCUMENTATION
FOR THE PACIFIC CITY PROJECT
COUNCIL MEETING DATE:
I May 6, 2002
Ordinance (w/exhibits & legislative draft if applicable)
Not Applicable
Resolution (w/exhibits & legislative draft if applicable)
Not Applicable
Tract Map, Location Map and/or other Exhibits
Not Applicable
Contract/Agreement (w/exhibits if applicable)
(Signed in full by the City Attorney)
Attached
Subleases, Third Party Agreements, etc.
(Approved as to form by City Attome
Not Applicable
Certificates of Insurance (Approved by the City Attome
Not Applicable
Financial Impact Statement (Unbudget, over $5,000)
Not Applicable
Bonds (If applicable)
Not Applicable
Staff Report (If applicable)
Not Applicable
Commission, Board or Committee Report (If applicable)
Not Applicable
Findings/Conditions for Approval and/or Denial
Not Applicable
7�- / 12"✓'( J'�
Administrative Staff
Assistant City Administrator Initial
City Administrator (initial)