HomeMy WebLinkAboutMAKAR PROPERTIES/MAKALLON ATLANTA HUNTINGTON BEACH,LLC - 2002-12-16OFFICE OF THE CITY CLERK
CITY OF HUNTItiGTON BEACH
P. O. Box 19012000 Alain Street
Huntington Beach, CA 92648
(714) 536-5227
(714) 374-1557 FAX
LETTER OF TR4NsN. nWAI. OF ITEM APPROVED BY THE. CITY COZTNCFL/
REDEVELOPMENT AGENCY OF THE CITY OF MIN-n GTON BEACH
DATE: ^2/19/03 .
TO: aka- ' rnPert{ps_ i_i[' ATTENTION: �amueZ--yeisghard
Name
4100 MacArthur Boulevard, Suite 200 DEPARTMENT:
stint
Newport Beach CA 92660 REGARDLNG: Reimbursement Agreement
City. state. Zip
31.5 acres Pacific city
See Attached Action Agenda Item _E-G _ Date of Approval 1.2116IO2 _
Enclosed For Your Records- Is An Executed Copy Of The Above Referenced Agenda Item.
Remarks:
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Connie Brockway
City Clerk
Attachments: Action Agenda Page X Agreement _ CX Bonds Insurance
RCA Deed Other
CC: Scott Bess
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Planning
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RCA A�eemeot
RCA A�eement
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Department RCA Avc—t
WUMCC
Bonds
Insurance
Bonds
Insurance
Bonds
Insurance
Other
Insurance
Other
(13) December 16, 2002 - Council/Agency Agenda - Page 13
E-6. (City Council) Approve Reimbursement Agreement between the City and Makar
Properties for Professional Planning, Engineering,_Buitding, Legai and Fire Services
Retroactive to October 1 2002 Makallon Atlanta Huntington Beach LLC for Pacific
Ci (600.10) 11. Approve and Authorize the Mayor and City Clerk to execute the
Reimbursement Agreement be the City of Huntington Beach and Makallon Atlanta
Huntington Beach, LLC for Costs Incurred for Professional Planning, Engineering, Building,
Legal and Fire Services, and 2. Authorize acceptance of $20,000 to cover professional
planning services retroactive to October 1, 2002 of the current year. Submitted by the
Planning Director. Funding source: Not applicable.
Approved 7-0
E-7.(City Council Adopt Resolution No. 2002-127 Extending through December 2003
Temporary., Partially Paid Military Leave Benefits for City Employees Called to
Active Duty with the Armed Forces (Adol2ted by Resolution No. 2001-03 on
November 19, 2001) (700.50) -- Adopt Resolution No. 2002-127 — "A Resolution of the
City Council of the City of Huntington Beach Extending Resolution No. 2001-93 and
Providing forAdditional Temporary Partial!y Paid Military Leave of Absence and
Continuation of Benefits for City Employees Called to Active Duty with the Armed
Forces. Submit`.ed by the CityAdministrator. Funding source: Pay and benefits are
currently funded in the existing budget.
Adopted 7-0
E-8.(City Council Approve Amendment No. i to the Lease Agreement between the
City and Ruby:s Diner, Inc. for Ruby's Restaurant at the Huntington Pier (600.35)
Approve Amendment No. 1 to Lease Between the City of Huntington Beach and Ruby's
Diner, Inc., effective .tune 1, 2002, with the terms and conditions as presented herein,
and authorize the Mayor and City Clerk to execute the Amendment No. 1. Submitted b
the Administrative Services Director and the Acting Community Services Director.
Funding source: Not applicable.
Approved 7-0
E-9. (City Council) Armrove Grant of Easement from the City to Southern California
Edison for Underground Electrical Utilities at Huntington Beach Central Park
Sports Complex (650.80) — Authorize the Mayor and City Clerk to execute a Grant of
Easement conveying a real property interest from the City of Huntington Beach to
Southern California Edison. Submitted by the Administrative Services Director and the
Public Works Director. Funding source: Not applicable.
Approved 7-0
Council/Agency Meeting Heid: L
Deferred/Continued to:
O Approved Cl Conditionally Approved ❑ Denied
City Clerk's Signatwfe
Council Meeting Date: December 16, 2002
Department ID Number. PL02-50
CITY OF HUNTINGTON BEACH
REQUEST FOR ACTION
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SUBMITTED TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
;.n
SUBMITTED BY: RAY SILVER, City Administrator o2oe
PREPARED BY: HOWARD ZELEFSKY, Director of Planningi-
L.
SUBJECT: APPROVE REIMBURSEMENT AGREEMENT FOR MAKAR
PROPERTIES (PACIFIC CITY)
Statement of issue, Funding Source, Recommended Action, Alternative Action(s), Analysis, Environmental Status, Attachment(&)
N
Statement of Issue:
Transmitted for City Council consideration is a Reimbursement Agreement between the
City and Makar Properties, which has been prepared by the Departments of Planning and
City Attorney. The Reimbursement Agreement will help defray the costs of professional
planning, engineering, fire, building, and legal services for the City. The terms of the
Reimbursement Agreement include depositing ($37,500) funds on a quarterly basis. The
term of the Agreement will be retroactive to October 1, 2002 upon approval by the City
Council.
FunqLnq Source:
Not applicable.
Recommended Action:
Motion to:
1. "Authorize the Mayor and City Clerk to execu`,e the Reimbursement Agreement bemeen the
City of Huntington Beach and Makallon Atlanta Huntington Beach, LI_C for costs incurred for
professional planning, engineering, building, legal, and fire services"; and
2. `Authorize acceptance of $20,000 to cover professional planning services retroactive to
October 1, 2002 of the current year."
MEETING DATE: December 16, 2002
Alternative Action:
DEPARTMENT ID NUMBER: PL02-50
The City Council may elect not to approve thE! Reimbursement Agreement between the
City and Makar Properties. If so, the developer will not help defray the cost of professional
planning, engineering, fire, building, and legal services from the Department of Planning.
As a consequence, the development request by Makar Properties will be processed in line
with regular development requests, which may result in not meeting entitlement deadlines.
Analysis:
The City and Makar Properties recognize the costs associated with professional planning,
engineering, fire, building, and legal services assigned to the various development projects.
In order to assist the development community and process the number of large, complex
projects, it is necessary for the city to hire contract staff personnel to analyze respective
projects. The City and Makar Properties have agreed to enter into a Reimbursement
Agreement to help defray these costs.
The proposed Reimbursement Agreement between the City and Makar Properties requires
the developer to help defray the professional planning, engineering, fire, building, and legal
services costs incurred by the City. The agreement wilt reimburse the City $80,000
annually for planning services and up to an additional $70,000 for engineering, tire,
building, and legal services. Initially, $20,000 will be transmitted to cover the last quarter of
2002. Thereafter, $37,500 will be deposited quarterly
There have been many reimbursement agreements requested by staff and the
development community. This is an acceptable method to give developers greater
assurance of timely entitlement processing in Huntington Beach.
Environmental Status:
Categorically exempt from the California Environmental Quality Act pursuant to Class 1,
Section 15301.
Attachment:
RCA Author: Scott HessJHoward Zelefsky
PL02-50 -2- 1215/2002 8:54 AM
ti.w 1".)
REIMBURSEMENT AGREEMENT BETWEEN THE
CITY OF HUNTINGTON BEACH AND
MAKALLON ATLANTA IIUNTINGTON BEACH, LLC
FOR COSTS INCURRED FOR PROFESSIONAL PLANNING,
ENGINEERING, BUILDING, LEGAL AND FIRE SERVICES
THIS AGREEMENT ("Agreement') is made and entered into this It, lb day
of __Ay_,,� , 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 a 31.5 acre area within the City of
Huntington Beach within Do«mtov-m Specific Plan Areas 7 and 8A; and
DEVELOPER is required to submit applications to CITY for approval of various
entitlements, applications, land use and subdivision approvals and environmental assessments;
and
DEVELOPER desires that all entitlements applications, land use approvals, and
environmental assessments be processed as soon as possible; and
DEVELOPER desires to have CITY commit sufficient resources to enable the
expeditious processing of applications and other necessary documentation; and
Pursuant to California Government Code Section 87103.6. DEVELOPER is allowed to
defray the cost of processing development applications and entitlements 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:
1. PAYMENT
DEVELOPER agrees to reimburse CITY for its professional planning,
engineering, building, fire and legal services as follows:
A. DEVELOPER will make an initial payment to CITY in the amount of Twenty
Thousand Dollars ($20,000.00) to reimburse CITY for the above -described services provided
during the partial quarterly period of October 1, 2002 to and including December 31, 2002. In
addition, on January I, 2003, DEVELOPER %%ill make a payment to the CITY in the amount of
Thirty -Seven Thousand Five Hundred Dollars ($37,500.00) (hereinafter the "Amount of
Deposit") and three additional quarterly payments of $37,500.00 on the first day of each
successive quarter until One Hundred Fifty Thousand Dollars ($150,000.00) has been deposited.
If, prior to the payment of the three quarterly payments, the Amount of Deposit is reduced to less
than One Thousand Dollars ($1,000.00) 30 days prior to the end of the quarter, DEVELOPER
shall make the next quarterly payment within ten (10) days notice from CITY. DEVELOPER
acknowledges that the amount referenced in this Agreement is the CITY's best estimate of the
costs for the services described herein, and that the actual cost of said services may be higher. In
the event that the actual cost of said 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
the actual costs of Reimbursement Services are less than the estimated costs, CITY will refund
the difference between the actual and estimated costs.
B. A late payment fee of ten percent (101,0) will be assessed if CITY receives any
payment later than the thirtieth (30th) day after that payment is due but unpaid. In addition, one
and one-half percent (I %Z) interest per month shall be added for each month the payment
hereunder is due but unpaid.
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C. The estimated cost for twelve months of professional planning services is Eighty
Thousand Dollars ($80,000.00); the estimated cost of professional engineering, fire, legal and
building services is Seventy Thousand Dollars ($70,000.00), for a combined total estimated cost
amount of One Hundred Fifty Thousand Dollars (S 150,000.00).
2. STATEMENT OF INTENT
The amounts reimbursed to CITY pursuant to this Agreement will help defray
CITY's cost of the professional planning, engineering, building, fire and legal services required
to process DEVELOPER's project.
3. EXCLUSIVE CONTROL BY CITY
CITY will maintain exclusive control over the work described herein. Nothing in
this Agreement:
A. Shall be deemed to require CITY to approve any plan, proposal,
suggestion, application or request submitted by DEVELOPER.
B. Shall be deemed to limit, in any respect whatsoever, CITY's sole authority
to direct and control CITY staff and consultant(s) assigned to DEVELOPER's various
development projects.
C. Shall be deemed to impose any liability on CITY different from any
liability as may otherwise be established by law.
4. TIME IS OF THE ESSENCE
CITY agrees that time is of the essence for the professional services to be funded
pursuant to this Agreement.
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5. TERN"ATION 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.
6. TERM
This Agreement shall be effective as of October 1, 2002. This Agreement shall
expire when terminated as provided herein.
7. NOTICES
Any notices, certificates, or other communications hereunder shall be given either
by personal delivery to DEVELOPER's agent (as designated in Section I hereinabove) or to
CITY as the situation shall warrant, or by enclosing the same in a sealed envelope, postage
prepaid, and depositing the same in the United States Postal Service, to the addresses specified
below; provided that CITY" and DEVELOPER, by notice given hereunder, may designate
different addresses to which subsequent notices, certilcates or other communications will be
sent:
TO CITY:
City of Huntington Beach
ATTN: Director of Planning
2000 Main Street
Huntington Beach, CA 92648
S. MODIFICATION
TO DEVELOPER:
Makallon Atlanta Huntington Beach, LLC
e'o Makar Properties, LLC
4100 MacArthur Boulevard, Suite 200
Newport Beach, CA 92660
Attn: Samuel H. Weissbard
No waiver or modification of any language in this Agreement shall be valid
unless in %%Titing and duly executed by both parties.
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9. 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 description and are
included solely for convenience of reference only and are not representative of matters included
or excluded from such provisions, 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.
10. INTERPRETATION OF THIS AGREEMENT
The language of all parts of 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 here. 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.
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11. DUPLICATE ORIGINAL
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 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.
12. IMMIGRATION
DEVELOPER shall be responsible for full compliance with the immigration and
naturalization laws of the United States and shall, in particular, comply %Kith the provisions of the
United States Code regarding employment verification.
13. 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.
14. - ATTORNEY'S FEES
Except as expressly set forth in Section S 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 attorneys fees.
15. GOVERNTNG LAW
This Agreement shall be governed and construed in accordance with the laws of
the State of California.
C
1 G. 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
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 HUNTINGTON
BEACH, LLC
By: MAKAFIB, LLC, a Delaware limited
liability company, its Managing Member
By: Makar Properties, LLC, a Delaware
limited liability company, its Managing Member
CITY OF HUNTINGTON BEACH, a
municipal corporation of the State of
Cali
fo is
Mayor
By: ATTEST:
Sam el H eieissbard, eecuti ee Vice President
City Clerk
AND APPROVED AS TO FORM:
By: .<
2�c R
Grant M. Freeman Chief Financial Officer DL
J":�CCity Attorney
REVIEWED AND APPROVED
y Administrator
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