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HomeMy WebLinkAbout2008 CON Library Village South - Consulting Services Specific Plan AmendmentCOST SHARING AGREEMENT BY AND BETWEEN THE CITY OF NATIONAL CITY AND LIBRARY VILLAGE SOUTH, INC. THIS COST SHARING AGREEMENT (the "Agreement') is entered into this 2nd day of September 2008, by and between the CITY OF NATIONAL CITY, a municipal corporation (the "City"), and LIBRARY VILLAGE SOUTH, INC. a California corporation (the "Developer"), on the terms and provisions set forth below. The City and Developer may sometimes be referred to herein individually as "Party" and collectively as "Parties." RECITALS A. On February 1, 2005, the City Council of the City adopted a Downtown Specific Plan ("Downtown Specific Plan"); B. Developer is the Owner of real property located on Roosevelt Street in National City, California ("Property"). The Owner's Property is located on the westerly half block of the block of property located between 15th and 16th Streets, and bounded by National City Boulevard and Roosevelt Avenue (South Block); C. Developer has requested that the City amend the Downtown Specific Plan (DSP) to include the South Block within the Downtown Specific Plan with specific modifications to building heights and densities. The City has approved an initiation of an amendment to the Downtown Specific Plan to include the South block, as well as the westerly half blocks of the blocks located between Civic Center Drive and 15th Street and bounded by National City Boulevard and Roosevelt Avenue (Additional Blocks). The South Block and the Additional Blocks are depicted on Exhibit 1 attached hereto; D. The Parties seek to share costs of the DSP amendment for efficiencies and expediency. The City and the Developer will need to comply with the California Environmental Quality Act (CEQA) as part of the process of jointly pursuing the Specific Plan Amendment. This Agreement is written to set forth the areas where cost sharing will occur; E. Developer seeks to develop the South Block with two residential projects totaling approximately 30 and 40 units respectively and desires to achieve efficiencies by having this specific project part of the DSP amendment process; F. The City seeks to have the Additional Blocks as part of the DSP amendment because inclusion of these blocks makes for a more rational boundary; G. The Parties intend to apportion the costs in an equitable manner while achieving efficiencies in the planning process by reducing redundancies and time delay. NOW, THEREFORE, in consideration of the recitals and mutual covenants and conditions contained herein, the Parties hereto agree as follows: ARTICLE I IMPLEMENTATION OF ENVIRONMENTAL WORK 1.1 The Developer as to the South Block and the City as to the Additional Blocks shall supply all information to the City such that the City can process all documents necessary to satisfy requirements of the California Environmental Quality Act ("CEQA") and prepare any environmental documents necessary pursuant to CEQA for the Specific Plan Amendment. The Parties acknowledge that the City has not prepared an initial study to determine the environmental document that may be necessary under CEQA for the Specific Plan Amendment. As soon as reasonably practicable, the City shall prepare and distribute an invitation to consulting firms to submit their qualifications and bids to prepare any necessary CEQA documents ("EIR Consultant"), which invitation and the selection of the EIR Consultant shall be by the City. Developer may voice any objection to the selection of the EIR Consultant and City agrees to consider such objections prior to its final selection decision. Any reference herein to an Environmental Impact Report ("EIR") shall include any other CEQA documents such as a secondary study or mitigated negative declaration if appropriate. The City shall enter into the agreement for the preparation of any necessary EIR with the EIR Consultant, and the Developer and City shall be responsible for the EIR Consultant's fees and all costs associated therewith as fol lows: A. As to matters needed for the South Block and the Additional Blocks, the fees and costs of the EIR Consultant shall be borne 1/3 to Developer and 2/3 to City; B. As to matters specific to Developer's Project and the South Block, Developer to bear 100% of such fees and costs. C. As to matters specific to the Additional Blocks, City to bear 100% of such fees and costs. 1.2 To the extent practicable, the EIR Consultant shall be responsible for allocating the total fees and costs of the EIR Consultant in accordance with the formula stated above. 1.3 The City has preliminarily estimated that the total fees and costs for the Environmental Consultant will be between $50,000 and $200,000. 1.4 Upon selection of the EIR Consultant, Developer shall have the right to review the progress of the EIR Consultant with respect to the preparation of the EIR for that portion addressing the South Block, as more particularly described below. Upon completion of each stage of preparation of the EIR, including the preparation of working papers, a proposed outline, first draft, and any revised drafts of the EIR, the EIR Consultant shall deliver a copy of each to Developer. Developer shall have the right to review each such work produced and provide feedback and input to the EIR Consultant in regard to the South Block. ARTICLE II DEVELOPER DEPOSIT 2.1 As a condition precedent to the City's execution of this Agreement, Developer has tendered to City, and City has accepted, a deposit ("Deposit") in the amount of Twenty -Five Thousand Dollars ($25,000), in the form of a cashier's or certified check, or wire transfer, payable to City. Developer's Deposit shall be used to pay for Developer's share of the EIR Consultant bills and costs, and to pay for City processing of Developer's portion of the EIR, consistent with the allocations used for payment to the EIR Consultant. Developer agrees that City may use the Deposit to reimburse the EIR Consultant and the City for their reasonable and actual costs incurred after the execution of this Agreement. City shall forward copies of the EIR Consultant's billings to Developer at the time it submits a reimbursement notice to the Developer. City shall withdraw funds from the Deposit, as needed to pay Developer's portion of such invoices and to pay Developer's portion of City processing. Any balance remaining from the Deposit, upon the final decision regarding the EIR and final processing by the City, shall be refunded only to the extent the fees and costs allocated to Developer are less than the amount of the Deposit. To the extent such fees and costs exceed the amount of the Deposit, Developer shall pay to City the difference within 15 days of City submitting a billing to Developer for such additional fees and costs. Notwithstanding the foregoing, the Parties understand that the City is reserving the right to exercise its discretion as to all matters which it is, by law, entitled or required to exercise its discretion. Nothing contained herein alters such rights. ARTICLE III GENERAL PROVISIONS 3.1 Applicable Law The laws of the State of California shall govern the interpretation and enforcement of this Agreement. 3.2 Acceptance of Service of Process In the event that any legal action is commenced by Developer against City, service of process on City shall be made by personal service upon the City, in such manner as provided by law. In the event that any legal action is commenced by City against Developer, service of process on Developer shall be made by personal service upon Developer or in such other manner as may be provided by law, and shall be valid whether made within or without the State of California. 3.3 Rights and Remedies are Cumulative Except as otherwise expressly stated in this Agreement, the rights and remedies of the Parties are cumulative, and the exercise by either Party of one or more of its rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party. 3.4 Attorney's Fees If either Party to this Agreement initiates or defends litigation in any way connected with this Agreement, the prevailing party in such litigation, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to its reasonable attorney's fees. As used herein, the term "attorney's fees" shall include attorney's fees incurred related to the foregoing described litigation and for any appeal, and in addition a Party entitled to attorney's fees shall be entitled to all other reasonable costs for investigating such action, retaining expert witnesses, taking depositions and discovery, and all other necessary costs incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. 3.5 Termination Rights Either Party may terminate this Agreement if the other Party has materially defaulted in its obligations herein set forth, and the terminating party has provided the defaulting party with written notification of such determination and the defaulting party has refused to cure same. The written notification shall set forth the nature of the actions required to cure such default if curable. The defaulting party shall have thirty (30) days from the date of the written notification to cure such default. If such default is not cured within the thirty (30) days, the termination shall be deemed effective. For purposes of this paragraph, the Parties hereby acknowledge that time is of the essence. 3.6 Notices, Demands and Communications Between the Parties Formal notices, demands, and communications between City and Developer shall be given either by (i) personal service, (ii) delivery by reputable document delivery service such as Federal Express that provides a receipt showing date and time of delivery, (iii) facsimile with a hard copy sent by United States mail; or (iv) or by mailing in the United States mail, certified mail, postage prepaid, return receipt requested, addressed to: To City: To Developer: With a copy to: City of National City Attention: Raymond Pe 1243 National City Boulevard National City, California 91950 Phone: (619) 336-4421 Library Village South, Inc. Attention: Mark Schmidt 9948 Hibert Street, Suite 210 San Diego, California 92131 Phone: (858) 571-0582 Smaha Law Group Attention: John L. Smaha 7860 Mission Center Court, Suite 100 San Diego, CA 92108 Phone: (619) 688-1557 Notices personally delivered, sent by fax with a confirmation by United States mail or delivered by document delivery service shall be deemed effective upon receipt. Notices sent solely by mail in the manner provided above shall be deemed effective on the second business day following deposit in the United States mail. Such written notices, demands, and communications shall be sent in the same manner to such other addresses as either Party may from time to time designate by mail. 3.7 Interpretation The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either Party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. The part and paragraph headings used in this Agreement are for purposes of convenience only, and shall not be construed to limit or extend the meaning of this Agreement. 3.8 Counterparts This Agreement may be executed in counterparts, each of which, after all the Parties hereto have signed this Agreement, shall be deemed to be an original, and such counterparts shall constitute one and the same instrument. 3.9 Successors This Agreement shall be binding upon and shall inure to the benefit of the permitted successors of each of the Parties hereto. 3.10 Severability In the event any section or portion of this Agreement shall be held, found, or determined to be unenforceable or invalid for any reason whatsoever, the remaining provisions shall remain in effect, and the Parties hereto shall take further actions as may be reasonably necessary and available to them to effectuate the intent of the Parties as to all provisions set forth in this Agreement. 3.11 Time is of the Essence Time is of the essence for each of the Parties' obligations under this Agreement. 3.12 Recitals The recitals set forth above are incorporated herein by this reference. 3.13 Confidentiality Developer acknowledges and agrees that City is a public entity with a responsibility and, in many cases, legal obligation to conduct its business in a manner open and available to the public. Accordingly, any information provided by Developer to City with respect to the South Block or Developer may be disclosed to the public either purposely, inadvertently, or as a result of a public demand or order. With respect to any information provided that Developer reasonably deems and identifies in writing as proprietary and confidential in nature, City agrees to exercise its best efforts to keep such information confidential. IN WITNESS WHEREOF, the City and the Developer have signed this Agreement on the date and year first above written. CITY OF NATIONAL CITY By: Rorrison, Mayor LIBRARY VILLAGE SOUTH, INC. By: Mark Schmidt, President APPROVED AS TO FORM: By:XL' "4 twx. S.1,\0 .ch Sec-r6'"91 George H. Eiser, III City Attorney Signature Page to Cost Sharing Agreement ;--- ----- 4 :'"-----1 i ----4, 1---e, --.1 RESOLUTION NO. 2008 — 177 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE A COST SHARING AGREEMENT WITH LIBRARY VILLAGE SOUTH, INC., FOR ENVIRONMENTAL CONSULTANT SERVICES FOR THE SPECIFIC PLAN AMENDMENT WHEREAS, on December 6, 2005, the City Council initiated Specific Plan Amendment (SP-2005-3) to realign the Downtown Specific Plan boundary by adding three half - blocks east of Roosevelt Avenue, south of Civic Center Drive, and north of 16th Street to the Plan area; and WHEREAS, Library Village South, Inc., ("Developer") proposed two residential development projects on the half -block between 15th and 16th Streets; and WHEREAS, on April 1, 2008, the City Council considered the Developer's requested to reduce the scope of the amendment and environmental review to the half block containing the two projects, which was denied; and WHEREAS, the City Council recognizes that the cost of the environmental review should not be borne solely by the Developer, and desires to enter into a Cost Sharing Agreement with the Developer to apportion one-third of the cost to the Developer, and two- thirds to the City. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National City hereby authorizes the Mayor to execute a Cost Sharing Agreement with Library Village South, Inc., for Environmental Consultant Services for the Specific Plan Amendment. Said Agreement is on file in the office of the City Clerk. ATTEST: PASSED and ADOPTED this 2nd day of Septemb 2008. on Mo ison, Mayor thi ael R. Dalia, Ci Clerk APPROVED AS TO FORM: 7--- r) .4itt.. George H. Eiser, III City Attorney Passed and adopted by the Council of the City of National City, California, on September 2, 2008 by the following vote, to -wit: Ayes: Councilmembers Morrison, Natividad, Parra, Ungab, Zarate. Nays: None. Absent: None. Abstain: None. AUTHENTICATED BY: RON MORRISON Mayor of the City of National City, California vrijis71 City Ierk of the City of National City, Califomia By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2008-177 of the City of National City, California, passed and adopted by the Council of said City on September 2, 2008. City Clerk of the City of National City, California By: Deputy CITY OF NATIONAL CITY, CALIFORNIA CITY COUNCIL AGENDA STATEMENT MEETING DATE September 2, 2008 AGENDA ITEM NO. 8 ITEM TITLE Resolution Authorizing the Mayor to Execute a Cost Sharing Agreement Between the City and Library Village South, Inc. for Environmental Consultant Services for Specific Plan Amendment (SP-2005-3). PREPARED BY Raymond Pe 336-4421 DEPARTMENT Planning and Building EXPLANATION On December 6, 2005, Council initiated Specific Plan Amendment (SP-2005-3) to realign the Downtown Specific Plan boundary by adding three half -blocks east of Roosevelt Avenue, south of Civic Center Drive, and north of 16th Street to the plan area. Library Village South, Inc. has proposed two residential development projects on the half -block between 15t and 16th Streets. On April 1, 2008, the developer requested that Council reduce the scope of the amendment and environmental review to the half block containing the two projects. Council considered the request, but directed staff to proceed with the amendment for all three half -blocks. Council recognized the cost of environmental review should not be borne solely by the developer; consequently, staff' was directed to prepare a cost sharing agreement to apportion one third of the shared costs to the developer and two thirds to the City. Library Village South, Inc. has agreed to enter into the agreement with the City. If approved, staff will prepare and distribute a request for proposals for consultant services and recommend an award of contract for Council consideration. ENVIRONMENTAL REVIEW Not applicable for this action. FINANCIAL STATEMENT Account No. The City's share of the costs for consultant services could range from approximately $50,000 to $100,000 depending on the scope of the environmental review. As a condition precedent to the execution of the agreement, the developer has tendered an initial deposit of $25,000. STAFF RECOMMENDATION Approve the Resolution. Rcr BOARD 1 COMMISSION RECOMMENDATION Not applicable. ATTACHMENTS Resolution No. , Cost Sharing Agreement A-200 (9/80) City of National City Office of the City Clerk 1243 National City Boulevard, National City, CA 91950-4397 Michael R. Dalla, CMC - City Clerk (619) 336-4228 Fax: (619) 336-4229 September 8, 2008 Mr. Mark Schmidt Library Village South, Inc. 9948 Hibert Street, Suite 210 San Diego, CA 92131 Dear Mr. Schmidt, On September 2nd, 2008, Resolution No. 2008-177 was passed and adopted by the City Council of the City of National City, authorizing execution of an agreement with Library Village South, Inc. We are forwarding for your records a certified copy of the above Resolution and a fully executed original agreement. Sincerely, Michael R. Dalla, CMC City Clerk Enclosures cc: Planning and Building Dept. John Smaha, Smaha Law Group ® Recycled Paper