HomeMy Public PortalAboutA 2012-07-03LPAThis Agenda contains a brief general description of each item to be considered. Copies of the Staff
reports or other written documentation relating to each item of business referred to on the Agenda are on
file in the Office of the City Clerk and are available for public inspection. A person who has a question
concerning any of the agenda items may call the City Manager at (310) 603-0220, ext. 200.
Procedures for Addressing the Members of the Parking Authority
IN ORDER TO EXPEDITE LYNWOOD PARKING AUTHORITY BUSINESS, WE ASK THAT ALL
PERSONS WISHING TO ADDRESS THE AUTHORITY FILL OUT A FORM PROVIDED AT THE DOOR,
AND TO TURN IT IN TO THE AUTHORITY SECRETARY PRIOR TO THE START OF THE MEETING.
FAILURE TO FILL OUT SUCH A FORM WILL PROHIBIT YOU FROM ADDRESSING THE MEMBERS
OF THE AUTHORITY IN THE ABSENCE OF THE UNANIMOUS CONSENT OF THE AUTHORITY.
AGENDA ITEMS ON FILE FOR CONSIDERATION
AT THE REGULAR MEETING OF
THE LYNWOOD PARKING AUTHORITY
TO BE HELD ON JULY 3, 2012
6:00 P.M.
COUNCIL CHAMBERS
11330 BULLIS ROAD, LYNWOOD, CA 90262
JIM MORTON
CHAIR
SALVADOR ALATORRE
VICE CHAIR
RAMON RODRIGUEZ
MEMBER
AUTHORITY ADMINISTRATOR
ROGER L. HALEY
AUTHORITY SECRETARY
MARIA QUINONEZ
OPENING CEREMONIES
CALL TO ORDER
2. ROLL CALL OF MEMBERS
Aide Castro
Ramon Rodriguez
Maria T. Santillan-Beas
Salvador Alatorre
Jim Morton
3. CERTIFICATION OF AGENDA POSTING BY SECRETARY
JUN 2 8 2012
CITY OF LYNWOOD
CITY CLERKS OFFICE
C�AID�TRO
MEMBER
MARIA T. SANTILLAN-BEAS
MEMBER
AUTHORITY COUNSEL
FRED GALANTE
CITY TREASURER
EDWIN HERNANDEZ
PUBLIC ORAL COMMUNICATIONS
(Regarding Agenda Items Only)
NON -AGENDA PUBLIC ORAL COMMUNICATIONS
THIS PORTION PROVIDES AN OPPORTUNITY FOR THE PUBLIC TO ADDRESS THE
LYNWOOD PARKING AUTHORITY ON ITEMS WITHIN THE JURISDICTION OF THE
LYNWOOD PARKING AUTHORITY AND NOT LISTED ON THE AGENDA. IF AN ITEM IS NOT
ON THE AGENDA, THERE SHOULD BE NO SUBSTANTIAL DISCUSSION OF THE ISSUE BY
THE LYNWOOD PARKING AUTHORITY, BUT LYNWOOD PARKING AUTHORITY MEMBERS
MAY REFER THE MATTER TO THE STAFF OR SCHEDULE SUBSTANTIVE DISCUSSION FOR
A FUTURE MEETING. (The Ralph M. Brown Act, Government Code Section 54954.2 (a).)
CONSENT CALENDAR
All matters listed under the Consent Calendar will be acted upon by one motion affirming the action
recommended on the agenda. There will be no separate discussion on these items prior to voting
unless members of the Authority or staff request specific items be removed from the Consent
Calendar for separate action.
4. MEMORANDUM OF UNDERSTANDING BETWEEN CITY OF LYNWOOD, LYNWOOD
PARKING AUTHORITY AND M&A GABAEE
Comments:
The Lynwood Parking Authority wishes to develop a parking facility in the area bounded on
all four sides by East Imperial Highway, Long Beach Boulevard, Sanborn, and California
Avenue ("Site') to address parking deficiencies in the City. Developer M&A Gabaee is
interested in the exploring the option of assisting in the development of a parking facility by
locating revenue -generating retail establishments within the parking facility. To explore the
proposal, Staff recommends that the City Council and Parking Authority Board approve the
proposed Memorandum of Understanding ("MOU") to allow staff to evaluate and make
appropriate recommendations to the City Council and Parking authority Board concerning
the proposed development.
Recommendation:
Staff recommends that the City Council of the City of Lynwood and Lynwood Parking
Authority Board adopt the attached resolution entitled "A JOINT RESOLUTION OF THE
CITY OF LYNWOOD AND LYNWOOD PARKING AUTHORITY BOARD APPROVING
THE MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF LYNWOOD AND
LYNWOOD PARKING AUTHORITY AND M&A GABAEE."
ADJOURNMENT
THE LYNWOOD PARKING AUTHORITY MEETINGS WILL BE POSTED AS NEEDED. THE
NEXT MEETING WILL BE HELD IN THE COUNCIL CHAMBERS OF CITY HALL, 11330 BULLIS
ROAD, CITY OF LYNWOOD, CALIFORNIA.
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AGENDA STAFF REPORT
DATE: July 3, 2012
TO: Honorable Mayor and Members of the City Council
Honorable Chair and Members of the Parking Authority Boar
APPROVED BY: Roger L. Haley, City Manager/Authority Administrat 6V
PREPARED BY: Fred Galante, City Attorney/Authority Counsel
SUBJECT: Memorandum of Understanding between City of Lynwood,
Lynwood Parking Authority and M&A Gabaee
Recommendation:
Staff recommends that the City Council of the City of Lynwood and Lynwood
Parking Authority Board adopt the attached resolution entitled "A JOINT
RESOLUTION OF THE CITY OF LYNWOOD AND LYNWOOD PARKING
AUTHORITY BOARD APPROVING THE MEMORANDUM OF
UNDERSTANDING BETWEEN THE CITY OF LYNWOOD AND LYNWOOD
PARKING AUTHORITY AND M&A GABAEE."
Background:
The Lynwood Parking Authority wishes to develop a parking facility in the area
bounded on all four sides by East Imperial Highway, Long Beach Boulevard,
Sanborn, and California Avenue ("Site") to address parking deficiencies in the
City. Developer M&A Gabaee is interested in the exploring the option of assisting
in the development of a parking facility by locating revenue -generating retail
establishments within the parking facility. To explore the proposal, Staff
recommends that the City Council and Parking Authority Board approve the
proposed Memorandum of Understanding ("MOU") to allow staff to evaluate and
make appropriate recommendations to the City Council and Parking authority
Board concerning the proposed development.
Discussion & Analysis:
Recognizing the significant parking deficiencies in the City of Lynwood, on May 1,
2012 by Resolution 2012.091, the City Council created the Lynwood ParkingAGENDA
Authority (LPA) to function in the City pursuant to the Parking Authority Law of ITEM
1949, California Streets and Highways Code sections 32500 et seq., (Parking
Authority Law). The LPA is authorized to address on-going and anticipated
parking problems throughout the City.
The LPA has authority to acquire, including by eminent domain, own, use, hire,
lease, operate and dispose of real property and personal property and any
interest therein, for the purpose of constructing, maintaining or operating off-street
parking facilities, and to make and enter into all contracts to operate, manage and
control such facilities. The City and LPA may utilize the powers of the LPA to
develop a multi-level parking facility (Facility) to meet the current and anticipated
vehicle parking needs in the area of the Site. The Site is comprised of
approximately 10.33 acres, which will require the assembly of approximately 43
parcels of varying sizes and uses.
The Developer, M&A Gabaee, has a track record of quality retail commercial
developments. The Developer wishes to construct retail commercial uses within
or adjacent to the Facility, which will assist the LPA in the generation of financing
and revenues required to undertake the development of the Facility. Before
development of the Facility, agreements for the development and financing of the
Facility will need to be negotiated and executed by LPA or Developer.
The Facility is anticipated to consist of three levels of parking, including on the
ground level and roof top for a total of 1254 parking stalls, and Developer would
construct and operate a retail commercial project consisting of approximately
392,000 square feet of retail space, the required parking for which will be
accommodated by a portion of the Facility. To accomplish development of the
Facility, the attached MOU allows the parties to explore options for financing the
Facility. To this end, Developer has proposed to make a deposit of $300,000 in
installments to allow the City and LPA to study the feasibility and undertake initial
actions toward the planning and development of the Project, including but not
limited to, analysis of acquisition options and potential impacts under the
California Environmental Quality Act (CEQA).
Fiscal Impact:
All costs to prepare any development agreements and other consultants are
anticipated to be paid by the Developer using the $300,000 deposit, as such
amount may be increased pursuant to the MOU.
Coordinated With:
City Manager's Office
Attachment:
1. Joint Resolution of the City of Lynwood and Lynwood Parking Authority
Board Approving the Memorandum of Understanding Between and City of
Lynwood and Lynwood Parking Authority and M&A Gabaee
2. Memorandum of Understanding Between and City of Lynwood and
Lynwood Parking Authority and M&A Gabaee
CITY RESOLUTION NO.
LPA RESOLUTION NO.
A JOINT RESOLUTION OF THE CITY OF LYNWOOD AND LYNWOOD
PARKING AUTHORITY BOARD APPROVING THE MEMORANDUM OF
UNDERSTANDING BETWEEN THE CITY OF LYNWOOD AND LYNWOOD
PARKING AUTHORITY AND M&A GABAEE
WHEREAS, Recognizing the significant parking deficiencies in the City of
Lynwood, on May 1, 2012 by Resolution 2012.091, the City Council created the
Lynwood Parking Authority (LPA) to function in the City pursuant to the Parking
Authority Law of 1949, California Streets and Highways Code sections 32500 et
seq., (Parking Authority Law) and address on-going and anticipated parking
problems throughout the City; and
WHEREAS, the LPA has authority to acquire, including by eminent
domain, own, use, hire, lease, operate and dispose of real property and personal
property and any interest therein, for the purpose of constructing, maintaining or
operating off-street parking facilities, and to make and enter into all contracts to
operate, manage and control such facilities; and
WHEREAS, the City and LPA may utilize the powers of the LPA to
develop a multi-level parking facility (Facility) to meet the current and anticipated
vehicle parking needs in the area of the area bounded on all four sides by East
Imperial Highway, Long Beach Boulevard, Sanborn, and California Avenue (Site)
to address parking deficiencies in the City; and
WHEREAS, the Developer, M&A Gabaee, wishes to construct retail
commercial uses within or adjacent to the Facility, which will assist the LPA in the
generation of financing and revenues required to undertake the development of
the Facility;
WHEREAS, before development of the Facility, agreements for the
development and financing of the Facility will need to be negotiated and
executed by LPA or Developer, subject to the terms of the Memorandum of
Understanding provided for consideration with this Resolution; and
WHEREAS, to accomplish development of the Facility, the attached MOU
allows the parties to explore options for financing the Facility and Developer has
proposed to make a deposit to allow the City and LPA to study the feasibility and
undertake initial actions toward the planning and development of this project,
including but not limited to, analysis of acquisition options and potential impacts
under the California Environmental Quality Act (CEQA).
NOW THEREFORE, THE CITY OF LYNWOOD AND LYNWOOD
PARKING AUTHORITY HEREBY JOINTLY RESOLVE AS FOLLOWS:
Section 1. Having carefully reviewed the terms and conditions set forth in
the Memorandum of Understanding, the Staff Report, and both oral and written
testimony regarding the proposed Memorandum of Understanding, the City
Council of the City of Lynwood and Board of the Lynwood Parking Authority
hereby approve the proposed Memorandum of Understanding.
Section 2. The City Council of the City of Lynwood and Board of the
Lynwood Parking Authority hereby authorize the Mayor/Chair to execute the
Memorandum of Understanding provided concurrently with this Resolution with
M&A Gabaee.
Section 3. The Council of the City of Lynwood and Board of the Lynwood
Parking Authority find, as evidenced by a 4/5ths vote or better, that the retention
of consulting services may be more economically and efficiently effected through
the use of an alternate procedure, such that the exercise of the purchasing
exemption authorized under Lynwood Municipal Code Section 6-3.12(a)(3) is
hereby approved.
Section 4. The City Manager/Administrator shall have the authority to
enter into contracts in a form approved by the City Attomey/Authority Counsel
with CEQA, planning, fiscal, engineering, relocation and acquisition consultants
for items reimbursable by the deposit placed by the Developer.
Section 5. This Resolution shall become effective immediately upon its
adoption by the Council of the City of Lynwood and Board of the Lynwood
Parking Authority.
PASSED, APPROVED and ADOPTED this 3rd day of July, 2012.
ATTEST:
MARIA QUINONEZ
CITY CLERK/SECRETARY
JIM MORTON
MAYOR/CHAIR
ROGER L. HALEY
CITY MANAGER/
ADMINISTRATOR
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APPROVED AS TO FORM:
FRED GALANTE
CITY ATTORNEY/AUTHORITY COUNSEL
MEMORANDUM OF UNDERSTANDING
This Memorandum of Understanding ("MOU"), dated as of this _ day of July, 2012
("Effective Date"), is made by and between the City of Lynwood, a California municipal
corporation ("City") and Lynwood Parking Authority, a duly authorized California public entity
("LPA") (the City and LPA are collectively referred to herein as "Lynwood Agencies"), and
M&A Gabaee, a California Limited Partnership ("Developer"). For and in consideration of the
mutual covenants and promises set forth herein, the Parties agree as set forth below, with
reference to the following facts:
RECITALS
A. In recognition of the significant parking deficiencies in the City of Lynwood, on
May 1, 2012 by Resolution 2012.091, the City Council of the City declared the need for a
parking authority to function in the City pursuant to the Parking Authority Law of 1949,
California Streets and Highways Code sections 32500 et seq., ("Parking Authority Law"), thus
establishing the LPA having powers provided under the Parking Authority Law over the entire
City to address such on-going and anticipated parking problems;
B. The LPA has full power and authority to acquire, including by eminent domain,
own, use, hire, lease, operate and dispose of real property and personal property and any interest
therein, for the purpose of constructing, maintaining or operating off-street parking facilities as
shall be necessary in the judgment of the LPA Board, and to make and enter into all contracts
necessary or incidental to the exercise of its powers and the performance of its duties and
functions regarding the operations, management and control of said facilities.
C. The City and LPA wish to utilize the powers of the LPA to cause the development
of a multi-level parking facility ("Facility") adequate to meet the current and anticipated vehicle
parking needs in the area bounded on all four sides by East Imperial Highway, Long Beach
Boulevard, Sanborn, and California Avenue and comprising those parcels of real property
located within the City of Lynwood, State of California, specifically described at Exhibit "A"
hereto and collectively referred to herein as the "Site". The Site is comprised of approximately
10.33 acres, which will require the assembly of approximately 43 parcels of varying sizes and
uses.
D. Developer wishes to participate in development of retail commercial uses
appurtenant to the Facility, which will assist the LPA in the generation of financing and revenues
required to undertake the development of the Facility. It is anticipated that, before development
of the Site as contemplated by this MOU appropriate subsequent agreements for the development
and financing of the Facility ("Development Agreements") will be negotiated and executed as set
forth herein below and all parcels comprising the Site will be acquired by LPA or Developer.
E. The Facility is anticipated to consist of three levels of parking, including on the
ground level and roof top for a total of 1254 parking stalls, and Developer is desirous of
constructing and operating a retail commercial project consisting of approximately 392,000
square feet of retail space ("Retail Component'), the required parking for which will be
accommodated by a portion of the Facility. (Together, the Facility and Retail Component are
0109510051/118841.1
referred to herein as the "Project".) In addition to the parking requirements for the Retail
Component, Developer will provide all required landscaping and on and off-site public works
improvements, all in accordance with applicable City regulations and standards.
F. To accomplish development of the Facility, City and LPA wish to explore options
for financing the Facility in conjunction with development of the Retail Component. To this
end, Developer has proposed to make a deposit, as provided in this MOU, to allow the City and
LPA to study the feasibility and undertake initial actions toward the planning and development
of the Project, including but not limited to, analysis of acquisition options and potential impacts
under the California Environmental Quality Act ("CEQA").
G. The Facility is anticipated to provide parking to serve the needs of retail
customers to the area at and around the Site as well as supplement the parking available to
commuters using the nearby Metro Green Line station at Long Beach and the 105 Freeway. The
Retail Component, in turn, is estimated to yield retail sales of approximately $300 million.
Estimated construction cost will be in excess of $100 million and is estimated to create over
2,000 construction jobs. Full time equivalent employment after completion is expected to reach
900 jobs. Expected construction is 14 months with an expected completion of Fall 2014.
H. The City and LPA desire to enter into this MOU with Developer with the
objective of subsequently agreeing upon and entering into mutually acceptable Development
Agreements for the development of the Site consistent with the terms and conditions of this
MOU at the earliest practical date.
1. City and LPA anticipate that, following execution of this MOU and through the
period of negotiation and preparation of Development Agreements with respect to the Project,
the staff of City and LPA, as well as certain consultants and attorneys of City and LPA will
devote substantial time and effort in reviewing plans, contacting and meeting with Developer and
various other necessary third parties in connection with the proposed Project, and in negotiating
and preparing the Development Agreements consistent with the basic terms and mutual
understandings established in this MOU.
J. City, LPA and Developer desire to enter into this MOU in order to set forth the
rights and duties of the Parties during the term of the Exclusive Negotiating Period.
Section 1. Purpose. This MOU furthers the purpose of making the most efficient use
of the City's and LPA's powers by cooperating on a basis of mutual advantage and thereby
operating and managing the Facility in a manner that will maximize benefits to the governmental
project and health, welfare and economic well being of the City. As such, this MOU establishes
the terms and conditions to be provided in the Development Agreements for the purpose of
planning, financing and developing the Facility and leasing certain portions of the Facility and
establishing the parties' responsibilities and obligations regarding the operation and management
of the Facility and Retail Component, including the goals of Resolution No. 2012.091, providing
the public with convenient and affordable parking and maximizing the revenues from the Facility
and Retail Component.
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01095/0051,1118841.1
Section 2. Obligations of City and LPA. During the Exclusive Negotiating Period,
City and LPA shall not negotiate, discuss or otherwise communicate with any person or entity,
other than Developer regarding Development Agreements or any other agreement for the
development of the Project and/or the acquisition of the Site or any portion thereof. Throughout
the Exclusive Negotiating Period, City and LPA staff shall be available to meet with Developer
to discuss the Project, the Site Plan, financing options and architectural renderings, and any other
issues pertinent to the preparation of the Development Agreements pertaining to the development
of the Project. City or LPA shall notify Developer of any consultant designated to assist it in the
undertaking the tasks described in MOU. Should Developer object to the retention of any
consultant, Developer shall notify City or LPA no later than three (3) calendar days after any
notice by City or LPA and the parties shall meet and resolve such issues in good faith. Initially,
Developer acknowledges and agrees that City and LPA shall retain the legal services of the City
Attorney, Aleshire & Wynder, LLP to perform all legal services and Kosmont Companies to
perform financial services related to the tasks described in this MOU.
Section 3. Obligations of Developer.
(a) Financial Information. Within the time set forth in the negotiated
Development Agreements and to the extent construction financing will need to be obtained by
Developer from an institutional lender(s) for the acquisition of the Site and development of the
Project, Developer shall provide LPA with financial information (in form and substance
reasonably acceptable to LPA) with respect to Developer, indicating to LPA's reasonable
satisfaction that such an institutional lender(s) or other financing sources, approved by LPA, has
expressed interest in financing the acquisition, construction and development of the Project by
Developer, as the case may be. Such information shall also outline the financial terms pursuant
to which it would consider loaning money or offering financial assistance to Developer for the
Project as well as specifically identify the sources of all equity financing to be used by Developer
to finance the development of the Project. In the event that the Project is to be financed
exclusively by equity financing, such equity commitment shall be in an amount considered
reasonably sufficient to provide for the net acquisition costs of Developer for the Site and the
development of the Project, as the case may be. Moreover, such equity commitment may also be
in the form of letters of intent from investors, lenders, or other non -institutional entities of
adequate credit -worthiness setting forth their intent to invest the equity required for this Project.
(b) Site Plan and Architectural Renderings. Before 4:30 p.m. on the 30th day
after the Effective Date, Developer shall deliver to LPA a first draft Site Plan and basic
architectural renderings of the Project. The Site Plan and basic architectural renderings shall
include a well defined architectural concept for the Project showing vehicular circulation and
access points, amounts and location of parking, location and size of all buildings (including
height and perimeter dimensions) pedestrian circulation, landscaping and architectural character
of the Project. However, notwithstanding submission by Developer as set forth herein, no such
Site Plan or architectural renderings shall be deemed final until final approval by City and LPA,
pursuant to the Development Agreements,.
(c) Proforma. Before 4:30 p.m. on the 60th day after the Effective Date,
Developer shall provide to City and LPA a first draft projected cost proforma, and a projected
table describing the sources and uses of funds and cash flow projections and distributions,
i'
01095100511118841.1
concerning the Project, and a narrative describing the fundamental economics of the Project, all
in form and substance acceptable to City and LPA.
Section 4. Extension/Exclusive Negotiation Agreement.
The parties shall negotiate the preparation of the Development Agreements beginning on
the Effective Date and continue until the date that is One Hundred Eighty (180) days thereafter,
notwithstanding that the day may fall on a holiday ("Exclusive Negotiating Period"). If the
Parties in good faith are negotiating the Development Agreements with respect to the proposed
development of the Project but such Agreements have not been executed as of the termination of
the Exclusive Negotiating Period, the Exclusive Negotiating Period shall be extended for an
additional ninety (90) days ("First Negotiating Period Extension"). Subsequent to the termination
of the First Negotiating Period Extension, the Exclusive Negotiating Period may be extended by
the mutual consent of the parties only for up to Ninety (90) additional days. City Manger of
City may grant each such extension for and on behalf of City and LPA in his/her sole and
absolute discretion, unless otherwise directed by the City Council of the City or Board of the
LPA.
If the Parties have mutually consented to an extension of the term of this MOU as
provided hereinabove, then the Parties shall, within such extended term, continue to negotiate in
good faith the Development Agreements with respect to the proposed development of the
Project.
Section 5. Development Agreements.
(a) Negotiations of Development Agreements. The Parties hereby
acknowledge and agree that, during the tern of this MOU, (as such term may be extended
pursuant to Section 4 above, the Parties shall use their respective good faith efforts to negotiate
and enter into the Development Agreements, which shall include (but not be limited to) the
following: (i) the design of the Project by Developer, which design shall be subject to approval
by City and LPA in their sole discretion, (ii) the construction of the Project by Developer in
accordance with final plans and specifications to be provided by Developer and approved by City
and LPA, pursuant to a detailed schedule of performance by Developer, (iii) the operation and
management of the Project by Developer in a good and professional manner, and subject to the
covenants required bylaw; (iv) the maintenance of landscaping, buildings and improvements in
good condition and satisfactory state of repair so as to be attractive to the residents and to the
community, (v) the operation of the Project by Developer in compliance with all equal
opportunity standards established by Federal, State and local law, (vi) the right of City and LPA
to inspect the Project from time to time to assure compliance with the foregoing provisions, (vii)
provision by Developer to City or LPA upon request of concepts, schematics and the final plans
and working drawings for the Project and participation in presentations with respect thereto,
(viii) provision by each contractor and/or subcontractor (as the case may require and as
appropriate) performing work on the Project of the requisite performance bond and labor and
materials payment bond to assure completion of the Project free of mechanics' liens, (ix) that the
Project shall be of the highest quality and standard, (x) the general terns and conditions upon
which Developer shall acquire the parcels, (xi) the terms and conditions upon which either party
may terminate the Development Agreements (e.g., the discovery of environmental
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0 109 51005 1/1 18841.1
issuesihazardous substances on the Site, unexpected development or construction costs, inability
to acquire the parcels), and (xii) a representation of minimum levels of the costs of
improvements and sales and property tax generation of the Project.
(b) Outreach. The parties acknowledge that community outreach related to
the proposed Project is critical insofar as it includes residential parcels. As such, to the extent
Developer wishes to commence assembling available property within and, as may be necessary,
immediately adjacent to, the Site in anticipation of the approvals of the Development
Agreements, Developer may fund an outreach/public relations program, as part of the Deposit, to
be implemented by City and/or LPA (as reasonably approved by Developer) regarding relocation
and benefits.
Section 6. Deposit: Termination.
(a) Initial Deposit. Developer shall submit to LPA a good faith deposit (the
"Deposit") in the amount of Three Hundred Thousand Dollars ($300,000), which Deposit shall
be provided to LPA in increments, with an initial amount of Sixty Thousand Dollars ($60,000)
upon the Effective Date of this Agreement and thereafter in increments of Thirty Thousand
Dollars ($30,000) whenever LPA informs Developer that the balance of the Deposit is below
Fifteen Thousand. The Deposit shall be used to cover the actual expenses to conduct studies
related to the project that will be used to establish the cost of the project, including but not
limited to, appraisals, financial feasibility studies, legal fees, Relocation Study, Phase I ESA, FF
& E Appraisal, and outreach/public relations programs ("Expenses"). The Deposit shall be in the
form of cash or letter of credit. LPA shall deposit it in an interest-bearing account and such
interest, when received by LPA, shall become part of the Deposit. LPA shall inform Developer
of any balance left in the unused funds ("Agency Balance") previously deposited by Developer
to the Lynwood Redevelopment Agency in conjunction with that certain expired Exclusive
Negotiating Agreement by and between the Lynwood Redevelopment Agency and Developer,
dated July 6, 2010. The Agency Balance shall be transferred and deposited in conjunction with
the Deposit so that the total Deposit held by LPA for the purposes of this MOU shall include the
Agency Balance.
(b) Supplemental Deposit. If LPA and Developer subsequently determine that
the Deposit is insufficient, which determination shall be based on the reasonable Expenses
incurred by City and LPA hereunder, then upon receipt of twenty (20) days written notice from
LPA, Developer shall deposit with LPA a lump sum deposit in the amount reasonably estimated
by LPA and Developer to be sufficient to cover the excess (each a "Supplemental Deposit"). If
Developer defaults in the payment of any Supplemental Deposit to LPA under this Section 6(b)
beyond any applicable cure period, work by City, LPA or their consultants on the project shall be
suspended until the applicable Supplemental Deposit is made to LPA.
(c) Accounting. LPA shall provide Developer with a monthly accounting of
LPA's use of the Deposits to pay Expenses within ten (10) days after the end of each calendar
month during the term of this MOU.
(d) Failure of Developer to Negotiate in Good Faith. In the event Developer
has not continued to negotiate diligently and in good faith, LPA shall give written notice thereof
5
n 1 nesions u119x41.1
to Developer, who shall then have ten (10) business days to commence negotiating in good faith.
Following the receipt of such notice and the failure of Developer to thereafter commence
negotiating in good faith within such ten (10) business days, this MOU may be terminated by
LPA's Administrator/City's City Manager. In the event of such termination, LPA shall have the
right to retain that portion of the Deposit (including any interest accrued thereon) to cover its
legal expenses and incidental costs related to the performance of its obligations under this MOU
incurred by LPA to such date including the negotiation of the Development Agreements with
Developer and, within thirty (30) days following such termination, refund the balance to
Developer, and neither party shall have any further rights against or liability to the other under
this MOU.
(e) Failure of City or LPA to Negotiate in Good Faith. In the event City or
LPA has not continued to negotiate diligently and in good faith, Developer shall give written
notice thereof to City and LPA and may withhold future installments of the Deposit until City or
LPA resumes negotiating diligently and in good faith. City or LPA shall then have ten (10)
business days to commence negotiating in good faith. Following the receipt of such notice and
the failure of City and/or LPA to thereafter commence negotiating in good faith within such ten
(10) business days, this MOU may be terminated by Developer. In the event of such termination
by Developer, LPA shall return the entire remaining balance of the Deposit, and any interest
earned thereon, if applicable, existing and not due and payable to any consultant at the time of its
receipt of Developer's notice described in this Subsection 6(e) and neither party shall have any
further rights against or liability to the other under this MOU.
(f) Termination of ENA. Subject to Section (e) above, upon termination of
this MOU at the expiration of the Exclusive Negotiating Period (or such extension thereof)
without the Development Agreements being signed or submitted by Developer, LPA shall have
the right to retain that portion of the Deposit (including any interest accrued thereon) to
reimburse its legal expenses and incidental costs related to the performance of its obligations
under this MOU incurred by LPA to such date including the negotiation of the Development
Agreements with Developer, and neither party shall have any further rights against or liability to
the other under this MOU. If the Development Agreements are signed and submitted by
Developer but are thereafter not approved by City and/or LPA, as applicable, then the total
Deposit with interest, shall be returned to Developer, and neither party shall have any further
rights against or liability to the other under this MOU. If the Development Agreements are
timely signed and submitted by Developer and thereafter approved by City and/or LPA, as
applicable, then the Deposit shall be applied toward any deposit required under the Development
Agreements. If the Development Agreements have been executed by the parties, the terms and
conditions of the Development Agreements shall supersede and prevail over those of this MOU
and thereafter govern the rights and obligations of the parties with respect to the development of
the Site.
Section 7. Schedule of Performance. It is the intention of LPA, City and Developer
that the development of the Site be completed in a timely and an expeditious manner.
Accordingly, the Development Agreements shall provide in reasonable detail the tasks to be
completed by the Parties in the development process and the projected date of completion for
each such task.
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01095;005U118841.1
Section 8. Environmental. Execution of the Development Agreements by City and/or
LPA shall be subject to compliance with the California Environmental Quality Act (California
Public Resources Code § 2100 et seq. as amended: "CEQA"). Since the Project may constitute
undertakings pursuant to and in furtherance of the General Plan, Section 21090 of CEQA and
Section 15180 of the State CEQA Guidelines (Title 14, California Code of Regulations § 15000
et seq.) may apply to the Project. However, City and/or LPA, as applicable, will evaluate the
proposed Project in accordance with Section 15168 of the State CEQA Guidelines in order to
determine if the Project is within the scope of the previously certified CEQA environmental
document prepared in connection with the City's adoption of the General Plan or any amendment
thereto or if the Project requires any additional CEQA documentation to be prepared for any of
the reasons specified in Section 15162 of the State CEQA Guidelines. Developer hereby agrees
to provide all reasonable assistance to City and LPA necessary to carry out obligations under
CEQA but shall be under no obligation to incur any costs or expenses outside the scope of
Developer's proposed Project under this MOU. Any and all costs outside the scope of the
obligations under this MOU will be identified as costs to each party under the executed
Development Agreements between the parties.
Section 9. Governing Law. This MOU and the legal relations between the parties
hereto shall be governed by and construed and enforced in accordance with the laws of the State
of California. Hence, for any action by either party shall be in Los Angeles County.
Section 10. No Other Agreement. This MOU constitutes the entire agreement of the
parties hereto with respect to the subject matter hereof and supersedes any and all prior
agreements and understandings between the parties. There are no agreements or understandings
between the parties and no representations by either party to the other as an inducement to enter
into this MOU, except as expressly set forth herein. Notwithstanding anything provided herein to
the contrary, whether expressed or implied, neither City nor LPA shall have any obligation to
enter into the Development Agreements with Developer and neither City or LPA nor their
officers, members, staff or agents have made any promises to Developer other than to
exclusively negotiate the Development Agreements for the Site in good faith with Developer
during the Exclusive Negotiating Period, and no statements of City or LPA or their officers,
members, staff or agents as to future obligations shall be binding upon City or LPA unless and
until the Development Agreements have been approved by City and LPA, and duly executed by
the Administrator of the LPA/City Manger of the City or his/her designee.
Section 11. Assignment. This MOU shall not be assigned by Developer to any person
or entity without the express written consent of City and LPA; provided, however, that
Developer may assign the Agreement to a California business entity that is formed for the
purpose of carrying out the Project and for which Developer is a member and the manager
thereof. Any assignment does not release Developer from any of its obligation hereunder.
Section 12. Notices. Any notice which is required or which may given hereunder may
be delivered or mailed to the party to be notified, as follows:
If to Developer: M&A Gabaee
9034 West Sunset Blvd
West Hollywood, CA 90069
7
01095MO5 l/1 18941A
Attention: Annan Gabay
If to City or LPA: City of Lynwood or Lynwood Parking Authority
11330 Bullis Road
Lynwood, California 90262
Attention: City Manager, or Parking Authority Administrator
with a copy to: Aleshire & Wynder, LLP
18881 Von Karman Avenue, Suite 1700
Irvine, CA 92612
Attn: Fred Galante, Esq.
Section 13. Public Hearine. The Development Agreements that maybe negotiated are
subject to consideration and discretion at a public hearing or hearings by City and/or LPA.
Nothing in this MOU shall commit or be construed as committing City or LPA to approve the
Development Agreements.
Section 14. Counterparts. This MOU may be executed in counterparts, each of which
when so executed shall be deemed an original, and all of which, together, shall constitute one
and the same instrument.
Section 15. Attorney's Fees. In the event that either party hereto brings action or
proceeding against the other party to enforce or interpret any of the conditions or provisions of
this MOU, the prevailing party shall be entitled to recover all reasonable attorney's fees and
expenses and court costs associated with such action or proceeding.
Section 16. Effect of Agreement. Notwithstanding any other provision of this MOU to
the contrary, the Parties expressly acknowledge and agree as follows: (a) except for those matters
expressly set forth in Section 2 above, none of the matters described in this MOU as a purported
commitment or obligation of City, LPA or Developer with respect to the development of the
Project shall have any effect unless and only to the extent such matters are expressly set forth in
the Development Agreements or other subsequent written agreement duly authorized and
approved by City and LPA; (b) City or LPA and Developer shall promptly commence the good
faith negotiation of the Development Agreements upon execution of this MOU; and (c) upon the
execution of the Development Agreements by the Parties, this MOU shall be null and void and
of no effect and shall be superseded by the terms and conditions of the Development
Agreements.
IN WITNESS WHEREOF, City, LPA and Developer have executed this MOU in the
City of Lynwood, Los Angeles County, California, on the date hereinabove first set out.
"CITY"
CITY OF LYNWOOD
10
8
0109510051/1 t 884 L I
ATTEST:
City Clerk/Secretary
APPROVED AS TO FORM:
City Attomey/LPA Counsel
w
010()5/0051/1 I RR41 1
"LPA"
LYNWOOD PARKING AUTHORITY
0
"DEVELOPER"
M&A Gabaee, a California Limited
Partnership
C
EXHIBIT "A"
DESCRIPTION OF THE SITE
Exhibit "A"
01095/0051/118841.1
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