HomeMy WebLinkAbout08 APPROVAL OF CEQA AGREEMENTAGF,NDA RhPORT
Agenda Item
Reviewed:
City Manager
Finance Director
8
-
N/A
MEETING DATE:
OCTOBER 2, 2012
TO: JEFFREY C. PARKER, CITY MANAGER
FROM: CITY MANAGER'S OFFICE
SUBJECT: APPROVAL OF A CEQA PROCESSING AND JOINT DEFENSE
AGREEMENT BETWEEN THE CITY OF TUSTIN AND THE SOUTH
ORANGE COUNTY COMMUNITY COLLEGE DISTRICT RELATED TO A
POTENTIAL LAND EXCHANGE ON A PORTION OF MCAS TUSTIN
SUMMARY
Approval is requested of an Agreement between the City of Tustin and the South
Orange County Community College District County of Orange which will permit the
development of the Orange County Regional Law Enforcement Training Center/ Animal
Control facility at Tustin Legacy
RECOMMENDATION
Subject to non-substantive modifications as may be determined necessary by the City
Attorney or City's Special Counsel, Kutak Rock, prior to execution by all parties,
approve and authorize the City Manager, or designee to execute the CEQA Processing
and Joint Defense Agreement between the City of Tustin and South Orange County
Community College District related to a portion of MCAS Tustin and to carry out all
actions necessary to implement a proposed Land Exchange pursuant to "Term Sheet
Concerning Key Issues on Development at ATEP" executed on December 15, 2010.
FISCAL IMPACT
Each Party will be responsible for its own costs and expenses relating to the Project and
CEQA Document, including costs associated with processing, reviewing, and
commenting; however, pursuant to the Agreement SOCCCD will bear the whole cost of
the tasks the CEQA consultant is to undertake pursuant to the Agreement and
SOCCCD will not seek reimbursement for the same from the City.
BACKGROUND
As the City Council is aware, the City and South Orange County Community College
District ("SOCCCD"), also referred herein individually as a "Party" and collectively as the
"Parties", entered into a "Term Sheet Concerning Key Issues on Development at ATER"
on December 15, 2010 (the "Term Sheet"). Pursuant to the Term Sheet, the Parties are
continuing to negotiate final terms, conditions, and text of several documents, including
a General Plan Amendment, Specific Plan Amendment, a Master Settlement and
Release Agreement, a Development Agreement, an Amendment to the Conveyance
Agreement, and a Land Exchange Agreement. Since both the City and SOCCCD are
public agencies, each Party will need to approve and carry out portions of the project
including the drafting, reviewing, and certifying the appropriate documentation pursuant
to the California Environmental Quality Act ("CEQA").
As a result, both Parties may be considered "Lead Agencies" under CEQA. The Parties
desire to enter into the Agreement to agree: (1) as to which Party will serve as the
"Lead" and "Responsible" Agency under CEQA (as such terms are used in CEQA and
the CEQA Guidelines); (2) on the roles and responsibilities of each Party as "Lead
Agency" and "Responsible Agency," (3) on a process for determining the appropriate
document required to comply with CEQA and the drafting, reviewing and certifying of
same and (4) on a joint defense of any challenge to such document.
The attached Agreement is authorized and made under the provisions of the CEQA
(Public Resources Code, Section 21000 and the related CEQA Guidelines (California
Code of Regulations, Title 14, chapter 3, commencing at Section 15000. After Council
approval of this item, the SOCCCD's Board of Trustees is anticipated to shortly
thereafter consider the proposed agreement for their approval.
Staff will be available to respond to any questions, on this matter.
Project Manager
Attachment: CEQA and Joint Defense Agreement between City and SOCCCD
AGREEMENT
FOR
CEQA PROCESSING AND JOINT DEFENSE
BETWEEN
THE CITY OF TUSTIN
AND
THE SOUTH ORANGE COUNTY COMMUNITY COLLEGE DISTRICT
DATED: , 2012
TABLE OF CONTENTS
Page
ACKNOWLEDGMENTS 1
1.1 Project 2
1.2 Proposing Party 2
1.3 Lead Agency 2
2. THE CEQA DOCUMENT 2
2.1 Initial Study 2
2.2 Conference 2
2.3 Drafting 2
2.4 Agreement on the Text of the CEQA Document 3
2.5 Coordination of Related Documents 3
2.6 Responses to Comments; Revisions 3
2.7 Processing 3
3. COSTS AND EXPENSES 4
3.1 In General 4
3.2 The CEQA Consultant 4
4. JOINT DEFENSE 4
5. REPRESENTATIONS, WARRANTIES AND COVENANTS 5
5.1 SOCCCD 5
5.2 City 5
5.3 Public Records Act Requests 5
6. TERMINATION 6
7. MISCELLANEOUS 6
7.1 Notices 6
7.2 Time of the Essence 7
7.3 Interpretation; Governing Law 7
7.4 Performance of Acts on Business Days 7
7.5 Further Assurances 7
7.6 Entire Agreement; Amendments 7
7.7 No Waiver 7
7.8 Assignment 7
7.9 Binding Effect 7
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TABLE OF CONTENTS
Page
7.10 Headings; Cross-References 7
7.11 Counterparts 7
7.12 Effective Date 8
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AGREEMENT FOR CEQA PROCESSING AND JOINT DEFENSE
THIS AGREEMENT FOR CEQA PROCESSING AND JOINT DEFENSE
(this "Agreement"), dated for identification purposes this day of , 2012,
is entered into by and between the CITY OF TUSTIN, a municipal corporation organized and
existing under and by virtue of the laws of the State of California ("City"), and the SOUTH
ORANGE COUNTY COMMUNITY COLLEGE DISTRICT, a public agency
("SOCCCD"). City and SOCCCD are sometimes referred to herein individually as a "Party"
and collectively as the "Parties."
RECITALS
The Parties enter into this Agreement on the basis of the following facts, understandings
and intentions:
A. This Agreement is authorized and made under the provisions of the California
Environmental Quality Act ("CEQA") (Public Resources Code, Section 21000 and the related
CEQA Guidelines (California Code of Regulations, Title 14, chapter 3, commencing at Section
15000).
B. On December 15, 2010, the Parties entered into that certain agreement to negotiate
entitled "Teini Sheet Concerning Key Issues on Development at ATEP" (the "Term Sheet").
C. Pursuant to the Term Sheet, the Parties are negotiating final teims, conditions and text of
several documents, including a General Plan Amendment, Specific Plan Amendment, a Master
Settlement and Release Agreement, a Development Agreement including an amendment to the
Conveyance Agreement identified in the Term Sheet, and a Land Exchange Agreement.
D. Both Parties are public agencies, each Party will approve and carry out portions of the
project, and both may be considered "Lead Agencies" under CEQA. The Parties desire to enter
into this Agreement to agree: (1) as to which Party will serve as the "Lead" and "Responsible"
Agency under CEQA (as such terms are used in CEQA and the CEQA Guidelines); (2) on the
roles and responsibilities of each Party as "Lead Agency" and "Responsible Agency," (3) on a
process for determining the appropriate document required to comply with CEQA and the
drafting, reviewing and certifying of same and (4) on a joint defense of any challenge to such
document.
E. This Agreement is intended to govern compliance with CEQA for each and every
"Project," as defined below to be undertaken by the Parties in connection with terms and
conditions of the Term Sheet.
NOW, THEREFORE, based upon the foregoing facts, in consideration of the mutual
covenants and agreements contained in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby
agree as follows:
1. Acknowledgments. The Parties acknowledge and agree on the following:
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1.1 Project. As used herein, the term "Project" shall mean the actions taken for the
purpose of implementing the Term Sheet if such action is (a) specifically contemplated in the
Term Sheet; (b) taken by the governing bodies of both of the Parties and (c) considered a
"Project" under CEQA and the CEQA Guidelines.
1.2 Proposing Party. The Project covered by this Agreement shall be proposed
jointly by both Parties.
1.3 Lead Agency.
1.3.1 Qualification. Both the City and SOCCCD qualify as a Lead Agency
under CEQA with respect to the Project.
1.3.2 Authority. Pursuant to California Code of Regulations, Title 14, Chapter
3, Section 15051, the Parties are empowered to designate one agency as the Lead Agency, and
both may jointly exercise their independent powers.
1.3.3 Designation. The Parties agree to the following designations:
(a) The City is the Lead Agency.
(b) SOCCCD is the Responsible Agency.
2. The CEQA Document.
2.1 Initial Study. Upon the execution of this Agreement, SOCCCD shall contract
with that certain CEQA consultant RGP Planning and Development (the "CEQA Consultant")
to conduct a review of the Project and prepare an Initial Study. The review of the Project shall
be conducted pursuant to CEQA Guidelines, Section 15002, Subdivisions (k), known as the
"Three-Step Process." The CEQA Consultant shall submit the Initial Study to the City and
SOCCCD staff for their review and comment.
2.2 Conference. Thereafter, SOCCCD staff and City staff shall confer and endeavor
to agree upon the appropriate form of a document (the "CEQA Document") that will render the
action of the applicable governing body with respect to such Project in compliance with the
provisions of CEQA.
2.3 Drafting. Upon the agreement by City and SOCCCD staff on the appropriate
form of CEQA Document, the CEQA Consultant shall prepare, at SOCCCD's sole expense, a
first draft of the CEQA Document. The CEQA Document will tier from:
2.3.1 The City and Navy Final Joint Program Environmental Impact
Statement/Environmental Impact Report for the Disposal and Reuse of the MCAS Tustin and the
MCAS Tustin Reuse Plan dated October 1996, as amended by the Errata dated September 1998;
2.3.2 The City's December 6, 2004 Supplement to the Initial FEIS/EIR for the
extension of Tustin Ranch Road;
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2.3.3 The City's April 3, 2006 Addendum to the Initial and Supplemental
FEIS/EIR for a zone change and approval of a Disposition and Development Agreement with
Tustin Legacy Community Partners;
2.3.4 SOCCCD's November 12, 2008 Addendum as amended by the Errata
dated November 2008 to the FEIS/EIR for the Long-Range Academic and Facilities Plan;
2.3.5 SOCCCD's March 24, 2009 Addendum for the Concept Plan 3A;
2.3.6 The City's environmental checklist of the Ordinance No. 1406 Specific
Plan Amendment No. 11-003 to implement the County of Orange and SOCCCD Land Exchange
Agreement, and
2.3.7 SOCCCD's December 5, 2011 Addendum for the County of Orange and
SOCCCD Land Exchange Agreement.
2.4 Agreement on the Text of the CEQA Document. The CEQA Consultant shall
submit the first draft of the CEQA Document to the staffs of the City and SOCCCD. As soon as
practicable thereafter, the staffs of the City and SOCCCD shall meet, confer and use reasonable,
good faith efforts to agree upon the final text of the CEQA Document.
2.5 Coordination of Related Documents. The staffs of the City and SOCCCD shall
also confer and use their reasonable, good faith efforts to agree upon the duration of the period
for public comment pursuant to the CEQA Guidelines and upon the final text of any necessary
documents relating to the CEQA Document, including resolutions and notices of document
availability, public hearing and comment period.
2.6 Responses to Comments; Revisions. The CEQA Consultant shall prepare a first
draft of responses to any comments made to the CEQA Document and any proposed revisions to
the CEQA Document that may be occasioned by those responses. The CEQA Consultant shall
submit the proposed responses and revisions to the staffs of the City and SOCCCD. As soon as
practicable thereafter, the staffs of the City and SOCCCD shall confer and use reasonable, good
faith efforts to agree upon the text of a final version of responses to comments and the CEQA
Document.
2.7 Processing. Upon reaching agreement on the text of the CEQA Document, the
staffs of the City and SOCCCD will present the final CEQA document to their respective
governing bodies.
2.7.1 Public Review. The Parties agree to conduct a public review and
comment process in accordance with the following:
(a) Sufficient public notice of document availability and approval of
such Project, CEQA Document and public hearing shall be given.
(b) If the parties agree that a scoping meeting is necessary under the
CEQA Guidelines, then such a meeting shall be held.
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(c) The draft CEQA Document shall be made available to the public
on the Parties' respective websites and at least two physical locations, one designated by each
Party.
(d) A sufficient time for public comment on the draft CEQA document
shall be afforded.
(e) A public hearing for such Project and the final CEQA Document
shall be conducted, including provision for the receipt of public comments.
(t) Resolutions adopting such Project and the CEQA Document shall
be passed in legally defensible form.
2.7.2 Approval. The City as Lead Agency shall consider the approval of such
Project and the CEQA Document before SOCCCD considers the same.
2.7.3 Notice of Determination. Each of SOCCCD and City shall tile a Notice
of Determination under Sections 21108 and 21152 of the Public Resources Code immediately
upon the approval of such Project and the certification of the CEQA Document by their
respective governing bodies and in no event later than five (5) working days after such approval
and certification.
2.7.4 Record. Each of City and SOCCCD shall maintain an administrative
record of the actions related to the adoption of such Project and the CEQA Document as required
by CEQA and the CEQA Guidelines.
2.7.5 No Pre-Determination. This Agreement shall in no way restrict or
abridge the authority of the governing body of either SOCCCD or City to consider public input
or the analysis or findings arising out of CEQA compliance in connection with such Project. In
addition, nothing in this Agreement shall restrict or abridge the authority of the governing body
of either SOCCCD or City to certify the CEQA Document as such governing body, having
considered such matters, shall determine.
3. Costs and Expenses.
3.1 In General. Except as set forth below, each Party shall be responsible for its own
costs and expenses relating to such Project and the CEQA Document, including processing costs,
review and comment costs, attorneys' fees, publication costs, duplication costs and fees payable
to other public agencies.
3.2 The CEQA Consultant. SOCCCD agrees that it shall bear the whole cost of the
tasks the CEQA Consultant is to undertake pursuant to this Agreement and SOCCCD shall not
seek reimbursement for same from the City.
4. Joint Defense. The Parties have an interest in conducting deliberative communications
between and among themselves and the CEQA Consultant, regarding the CEQA process and text
of the CEQA documents. In the interest of ensuring that these deliberative communications can
occur unfettered, and in consideration of their mutual interests in sharing information reasonably
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necessary to create a defensible CEQA process and documents, and their mutual interest in
defending any legal claims (whether brought in court or in the administrative processes), the
Parties have hereby acknowledge that their mutual interests will be served by having the CEQA
Consultant, the Parties' staffs and respective legal counsel freely share and exchange documents,
factual material, mental impressions, memoranda, reports, and other information that further the
deliberative process and /or are related to any issues anticipated to be or actually raised regarding
the sufficiency of the CEQA process or documents (hereinafter referred to collectively as
"Defense Materials "). It is the purpose of this Agreement to ensure that the Defense Materials
shall not be disclosed, and that the exchanges and disclosures of Defense Materials contemplated
herein do not diminish in any way the confidentiality of the Defense Materials and do not
constitute a waiver of any privilege or applicable privileges or immunities. The Parties agree to
maintain the confidentiality of the Defense Materials, both during the pendency of the CEQA
process, and thereafter and, accordingly, shall not disclose the Defense Materials to any person
who is not a Party to this Agreement, except the CEQA Consultant, without first obtaining the
consent of the other Party. Further, the Parties hereto agree to cooperate in the defenses of any
legal actions and as such, SOCCCD and the City agree that in the event that the adoption of such
Project or the CEQA Document by either Party is challenged in court for any reason, SOCCCD
and City shall meet and confer good faith to agree upon a joint defense of such Project and the
CEQA Document. Each Party shall engage its own counsel and shall pay the attorneys' fees
charged by its own counsel unless the Parties agree otherwise.
5. Representations, Warranties and Covenants.
5.1 SOCCCD. SOCCCD hereby represents to City that on and as of the date of this
Agreement, SOCCCD has full capacity, right, power and authority to execute, deliver and
perform this Agreement and all documents to be executed by SOCCCD pursuant hereto, and all
required action and approvals therefor have been duly taken. The individuals signing this
Agreement and all other documents executed or to be executed pursuant hereto on behalf of
SOCCCD shall be duly authorized to sign the same on SOCCCD's behalf and to bind SOCCCD
thereto. This Agreement and all documents to be executed pursuant hereto by SOCCCD are and
shall be binding upon and enforceable against SOCCCD in accordance with their respective
terms. City. City hereby represents to SOCCCD that on and as of the date of this Agreement,
City has full capacity, right, power and authority to execute, deliver and perform this Agreement
and all documents to be executed by City pursuant hereto, and all required action and approvals
therefor have been duly taken and obtained. The individuals signing this Agreement and all
other documents executed or to be executed pursuant hereto on behalf of City shall be duly
authorized to sign the same on City's behalf and to bind City thereto. This Agreement and all
documents to be executed pursuant hereto by City are and shall be binding upon and enforceable
against City in accordance with their respective terms.
5.3 Public Records Act Requests. Each Party agrees that, in the event such Party
receives a Public Records Act Request demanding disclosure of any of the Defense Materials or
of any other matter arising out of this Agreement, then such Party shall immediately notify the
other Party. Neither Party shall respond to any such Public Records Act Request without first
conferring with the other Party on the appropriate response.
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6. Termination. This Agreement shall terminate at such time as the last Project
contemplated by the Term Sheet shall have been adopted and all appeal periods with respect to
such Project shall have expired or, if such Project shall have been appealed, such appeal shall
have failed to affect the adoption and approval of such Project by both Parties.
7. Miscellaneous.
7.1 Notices. All notices or other communications between City and SOCCCD
required or permitted hereunder shall be in writing and personally delivered or sent by certified
mail, return receipt requested and postage prepaid, sent by reputable overnight courier (such as
Federal Express, UPS or DHL), or transmitted by electronic facsimile transmission (with
electronic confirmation of receipt), to the following addresses:
If to City:
with a copy to:
City of Tustin
300 Centennial Way
Tustin, California 92780
Attention: City Manager
Telefacsimile No.: (714) 573-3011
Woodruff, Spradlin & Smart
555 Anton Boulevard
Suite 1200
Costa Mesa, California 92626
Attention: David E. Kendig, Esq.
Telefacsimile No.: (714) 835 -7787
If to SOCCCD: South Orange County Community College District
28000 Marguerite Parkway
Mission Viejo, California 92692
Attention: Gary Poertner, Chancellor
Telefacsimile No.: (949) 347 -2472
with a copy to:
Jackson, DeMarco, Tidus & Peckenpaugh
2030 Main Street, 12th Floor
Irvine, California 92614
Attention: Andrew P. Bernstein, Esq.
Telefacsimile No.: (949) 752 -0597
A notice shall be effective on the date of personal delivery if personally delivered before
5:00 p.m. or otherwise on the day following personal delivery, or when received, if transmitted
by electronic facsimile transmission (with electronic confirmation of receipt), or two (2) business
days following the date the notice is postmarked, if mailed, or on the day following delivery to
the applicable overnight courier, if sent by overnight courier. Either Party may change the
address to which notices are to be given to it by giving notice of such change of address in the
manner set forth above for giving notice.
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7.2 Time of the Essence. Time is of the essence of this Agreement and each and
every term and provision hereof.
7.3 Interpretation; Governing Law. This Agreement shall be construed as if
prepared by both Parties. This Agreement shall be construed, interpreted and governed by the
laws of the State of California and the laws of the United States of America prevailing in
California.
7.4 Performance of Acts on Business Days. Unless specifically stated to the
contrary, all references to days herein shall be deemed to refer to calendar days. In the event that
the final date for payment of any amount or performance of any act hereunder falls on a
Saturday, Sunday or holiday, such payment may be made or act performed on the next
succeeding business day.
7.5 Further Assurances. Each Party will, whenever and as often as it shall be
requested to do so by the other Party, execute, acknowledge and deliver, or cause to be executed,
acknowledged and delivered, any and all such further conveyances, assignments, approvals,
consents and any and all other documents and do any and all other acts as may be necessary to
carry out the intent and purpose of this Agreement.
7.6 Entire Agreement; Amendments. This Agreement, together with the other
written agreements referred to herein, is intended by the Parties to be the final expression of their
agreement with respect to the subject matter hereof, and is intended as the complete and
exclusive statement of the terms of the agreement between the Parties. As such, this Agreement
supersedes any prior understandings between the Parties, whether oral or written. Any
amendments to this Agreement shall be in writing and shall be signed by all Parties hereto.
7.7 No Waiver. A waiver by either Party hereto of a breach of any of the covenants
or agreements hereof to be performed by the other Party shall not be construed as a waiver of any
succeeding breach of the same or other covenants, agreements, restrictions or conditions hereof.
7.8 Assignment. Neither Party hereto shall assign its rights under this Agreement
without the prior written consent of the other Party, which consent shall be in such Party's sole
discretion.
7.9 Binding Effect. This Agreement shall be binding upon and inure to the benefit of
the Parties hereto and their respective heirs, representatives, successors and permitted assigns.
7.10 Headings; Cross- References. The headings and captions used in this Agreement
are for convenience and ease of reference only and shall not be used to construe, interpret,
expand or limit the terms of this Agreement. All cross- references in this Agreement, unless
specifically directed to another agreement or document, shall refer to provisions in this
Agreement and shall not be deemed to be references to any other agreements or documents.
7.11 Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall constitute one and the
same document.
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7.12 Effective Date. This Agreement shall become effective on the date (the
"Effective Date ") this Agreement is executed by the last of the persons required to bind the
parties hereto as set forth under their respective signatures below.
Signatures on following page.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date
set forth opposite their respective signatures below.
CITY:
CITY OF TUSTIN, a California municipal
corporation
By:
Name:
Title:
Dated:
SOCCCD:
SOUTH ORANGE COUNTY COMMUNITY
COLLEGE DISTRICT, a California public
agency
By:
Name:
Title:
Dated:
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