Agenda Item # 6.D.
Council Agenda Report
To: Mayor Silverstein and the Honorable Members of the City Council Prepared by: Trevor Rusin, Interim City Attorney
Date prepared: August 9, 2023 Meeting date: August 14, 2023 Subject: Proposed Settlement Agreement with Cross Creek Ranch Malibu, LLC (CCRM) Regarding the Ranch at Cross Creek Property
RECOMMENDED ACTION: 1) Approve draft settlement agreement with Cross Creek Ranch Malibu, LLC (CCRM), and 2) find the action exempt from the California Environmental Quality Act (CEQA).
FISCAL IMPACT: If approved, the City would receive $250,000 in payments over approximately the next five years, as well as a payment of $40,000 in the next 30 days. In addition, should the City develop Parcel C it would be entitled to receive design/planning services from CCRM valued at up to $100,000, and the option to place up to half of the parking for a future project on Parcel C on CCRM’s property for free, which could result in significant savings to the City over the long term.
WORK PLAN: This item was not included in the Work Plan for Fiscal Year 2022-2023, it represents the resolution of a legal dispute between CCRM and the City.
BACKGROUND: On November 10, 2008, the City approved a development agreement (Development Agreement) related to the property located at 23465 Civic Center Way, where the original developer1 was granted a .20 FAR for a proposed commercial, retail, restaurant and business development project in exchange for providing a number of public benefits, including (1) conveying 2.3 acres in the civic center (Parcel C) to the City, (2) a $500,000 payment to the City, (3) a pedestrian and bike path through the project connecting to Civic Center Way, and (4) dedication of a trail segment fronting Civic Center Way.
In exchange for these benefits, CCRM was also provided, per Government Code section 65864, et seq. and the Development Agreement, the ability to implement its project 1 CCRM, formerly Malibu Development Company, LLC, is the successor in interest to the original developer (Malibu La Paz Ranch, LLC) and is the current owner of the property located at 23465 Civic Center Way.
City Council Meeting
08-14-23
Item
6.D.
Agenda Item # 6.D.
pursuant to “the City’s official policies, ordinances, rules and regulations in force as of the date the ordinance approving [the Development Agreement] was approved by the City Council.” As a result, so long as the Development Agreement is in effect, the project is not subject to the City’s Formula Retail Ordinance, which came into effect in 2018.
Term of Agreement and Dispute
The Development Agreement was approved by the California Coastal Commission on March 10, 2010. Due to litigation-related delays, the ten year term of the Development Agreement was extended to December 20, 2020. Under the Development Agreement, Section 3.6.2 provides:
The term of this Agreement shall be tolled during the time the Project is pending before the California Coastal Commission. The term of this Agreement shall be tolled during any period of time during which a development moratorium is in effect.
For purposes of this Agreement a development moratorium shall be deemed to exist (i) during the period that any action or inaction by CITY or other public agency that regulates land use, development or the provisions of services to the land prevents, prohibits or delays the use of the approval or the construction of the Project or (ii) during the period any lawsuit is pending brought by any third party concerning this agreement, any of the Project Approvals, including pursuant to CEQA, or any Subsequent Approval.
CCRM contends that the development of Cross Creek Ranch was delayed while the project sought certain approvals and clearances, including a significant delay addressing a Caltrans issue in which Caltrans and the City disagreed over the manner of widening a portion of Pacific Coast Highway at Cross Creek Road. CCRM alleges these delays caused it to suffer at least 2,549 days of additional delay that warrants tolling (approximately seven years). If the Development Agreement was tolled for this full period, it would expire around December 15, 2027. While CCRM has provided evidence supporting some tolling of the Development Agreement, the City does not agree with the full extent of CCRM’s tolling claim.
Rather than litigate the dispute, the City and CCRM have engaged in discussions over an extended period of time to resolve CCRM’s tolling claim to reach a good-faith compromise that provides additional tolling, but only for a portion of the period of time sought by CCRM—while also narrowing the rights of CCRM during that additional tolling period, and providing significant benefits to the City.
While the City had the ability to resolve this dispute in closed session, the City Council elected to bring the final decision on whether to accept CCRM’s proposal to this open session at the City’s Regular City Council meeting. This forum provides greater
Agenda Item # 6.D.
transparency and provides the public with the opportunity to weigh in on the details of the potential agreement.
Key Provisions of the Proposed Settlement Agreement
The following are the key provisions of the proposed settlement agreement (Settlement Agreement).
A. The City will receive the following benefits:
(1) Parcel C Will No Longer Revert to CCRM. Under the Development Agreement, Parcel C is to be reconveyed to CCRM in certain circumstances, including if the City does not develop the property in the next six and a half years. Under the Settlement Agreement CCRM agrees to waive this right. As a result, the City may develop this parcel on a time frame that fits with its priorities without risking the loss of the property.
(2) Expanded Uses Allowed for Parcel C. Under the Development Agreement Parcel C could only be used for a limited number of specific uses. Under the Settlement Agreement, CCRM agrees to waive part of this provision and thus allow the City to use Parcel C for the following additional uses2:
(a) a municipal auditorium/community performing arts center; (b) an art gallery or exhibition space;
(c) a movie theater;
(d) sports or recreation facilities with appropriate sound attenuation; or (e) any other use that does not substantially negatively impact the operations, peacefulness, or economic health of Cross Creek Ranch in CCRM’s reasonable business judgment, confirmation of which CCRM shall not unreasonably withhold.
(3) Free Parking for Parcel C. CCRM agrees to allow the City to use parking facilities at Cross Creek Ranch to provide up to half of the parking required for the City’s future use of Parcel C, at no charge to the City.
(4) Planning/Preliminary Design Services for Parcel C. CCRM will provide planning and preliminary design services (valued at up to $100,000) to the City to assist the City in developing Parcel C (if the City so requests).
(5) Financial Payment. CCRM shall pay the City $250,000 in five equal annual installments, beginning 30 days after the first tenant opens to the public. 2 Under the Development Agreement the City may also use Parcel C for City Hall use, a library, a community center, a senior center, an improved park, and similar uses.
Agenda Item # 6.D.
(6) Attorney’s Fees. CCRM shall pay the City an additional $40,000 for the City’s fees and costs related to negotiating and preparing the Settlement Agreement.
B. CCRM will receive the following benefits:
(1) The Development Agreement’s term shall be tolled such that it shall expire on August 14, 2024 (one year from the date of this City Council meeting). However, during this period of time (Additional Tolling Period) CCRM’s rights will be limited as follows:
(a) CCRM shall continue to be entitled to expedited processing of permitting applications during this time (at CCRM’s expense), but will not be eligible for additional Tolling of the Development Agreement if the City fails to expedite such processing to the extent expected by CCRM.
(b) CCRM shall be subject to the Formula Retail Ordinance, except that during the Additional Tolling Period:
(i) CCRM may obtain a planning clearance for nonexempt formula retail tenants not only for up to 30% of the shopping center’s gross floor area3 as allowed by the Formula Retail Ordinance (30% Type), but also for an additional 20% of the gross floor area (20% Type). CCRM shall designate for each proposed tenant whether the application is to be reviewed as a 30% Type or 20% Type.
(ii) Retail tenants that have ten or more stores anywhere in the area covered by the counties of Los Angeles, Ventura and Orange can only obtain a planning clearance as part of the 30% Type and do not qualify for a planning clearance as a part of the 20% Type. As a result, while the 20% Type would qualify as Formula Retail under the City’s municipal code (which defines Formula Retail based on the presence of 10 or more stores in the world), stores approved as part of the 20% Type will not have a large presence in the area—a limitation designed to avoid a sense of sameness and familiarity that the Formula Retail Ordinance seeks to prevent.
(iii) CCRM may lease to up to three non-exempt formula retail tenants a space that is up to 5,000 square feet in size (compared to the 4,000 square foot maximum size allowed for a non-exempt formula retail store under the Formula Retail Ordinance).
3 Excluding the floor area occupied by exempt formula retail as defined in MMC section 17.61.020(A)(1)-(8).
Agenda Item # 6.D.
(iv) CCRM may lease to non-exempt formula retail tenants that cumulatively occupy up to 60 percent of the ground floor spaces (compared to 40 percent in the formula retail ordinance). (c) After the Additional Tolling Period ends, stores that have applied for, or obtained, a planning clearance pursuant to the above may continue to operate (as if they were a tenant in a shopping center before the Formula Retail Ordinance was passed), but any replacement tenant must comply with the City’s Formula Retail Ordinance in all respects. This means the shopping center will eventually come into compliance with the Formula Retail Ordinance’s limits, the same as all other shopping centers in the City.
Analysis of Potential Settlement Agreement
A. Formula Retail and Impact of CCRM Benefits
While the City disputes the claims made by CCRM regarding the tolling it claims it is entitled to, it is possible a court could rule in CCRM’s favor and extend the Development Agreement term to a date as late as December 15, 2027. In that case, not only would the Development Agreement be extended longer than the Settlement Agreement provides for, but such an extension would not include the limitations provided for in the Settlement Agreement.
In terms of the City’s Formula Retail Ordinance, if the term of the Development Agreement is extended by a court CCRM would not be subject to the Formula Retail Ordinance’s provisions—and thus would be able to fill the entire shopping center with formula retail tenants. Under the Settlement Agreement CCRM will be subject to the Formula Retail ordinance even today, the only differences will be that during the following year CCRM will be able to (1) rent a space of 5000 square feet (instead of 4000 square feet) to up to three non-exempt formula retail tenants, (2) allow up to 60% of the ground floor spaces to be occupied by non-exempt formula retail tenants (instead of 40%), and (3) rent approximately 22,400 additional square feet to non-exempt formula retail tenants (approximately 4-10 stores, depending on their size) than would be allowed by the Formula Retail Ordinance—so long as these 20% Type tenants do not have ten or more stores located in the area covered by Los Angeles, Orange and Ventura counties.
After August 14, 2024, any new tenant applications that come in will have to fully comply with the City’s Formula Retail Ordinance. As a result, over time, the shopping center will come into full compliance with the Formula Retail Ordinance.
Agenda Item # 6.D.
Resolving this dispute through the Settlement Agreement thus allows more formula retail businesses than would be allowed if a court found against CCRM, but far fewer than would be allowed if a court rules in favor of CCRM. CCRM will also be entitled to expedited processing of its permits, but at CCRM’s expense, until August 14, 2024. Such processing is not anticipated to have a significant impact on city operations given the limited amount of processing that will be required at this time.
B. Impact of Benefits Provided to the City
Resolving this dispute through the Settlement Agreement also would avoid the cost of litigation, and provide a number of substantial benefits to the City. These benefits include $290,000 in cash payments, but potentially even more valuable are the provisions affecting Parcel C—the property located behind the shopping center that was given to the City as a condition of the Development Agreement.
Under Sections 6.3 and 6.4 of the Development Agreement, the City’s use of Parcel C is limited to a small number of uses, and if the City does not develop the property within 10 years of the date it was transferred to the City, it must reconvey the property to CCRM at a price set through an appraisal process, and CCRM may deduct the $500,000 it paid the City under the Development Agreement from that appraised price.
In the Settlement Agreement CCRM has agreed to waive its right to have Parcel C reconveyed to it, and has also agreed to allow Parcel C to be used for a broader range of uses. This means the City may take its time developing Parcel C without risking the loss of the property, and also that it has more options for how it can use the property.
The City will also have the option to use CCRM’s planning/design services (up to $100,000 in value) to help defray the cost of designing and planning a project on Parcel C. This could provide savings to the City and expedite the design of a future project.
Finally, and potentially most significant, is CCRM’s offer to provide free parking on its property for up to half of the spaces required for the City’s use of Parcel C. To exercise this right the City will have to obtain a joint use and common facilities parking approval pursuant to the City’s municipal code and LCP, which means a future planning commission would have to make the required findings.
This provision of the Settlement Agreement could result not only in significant savings to the City in terms of the cost of construction and maintenance of parking facilities, but would also allow the City to use a greater portion of Parcel C for things other than parking spaces—expanding the options for the City’s use of the property.
Agenda Item # 6.D.
C. Summary
In sum, the Settlement Agreement will allow all parties to avoid the cost of litigation while providing CCRM some of the benefits of the Development Agreement for a period of one year from August 14, 2023, (in particular from being required to strictly comply with the City’s Formula Retail Ordinance) in exchange for providing $290,000 in monetary benefits to the City along with benefits related to Parcel C—more specifically the waiving of the right to have Parcel C reconveyed to CCRM, an expansion of uses allowed on Parcel C, potential design/planning assistance valued at up to $100,000, and the provision of free parking on the CCRM property for up to half of the required parking of a future development on the parcel.
ENVIRONMENTAL IMPACT: This action was assessed in accordance with the authority and criteria contained in the California Environmental Quality Act (CEQA), the State CEQA Guidelines (the Guidelines), and the environmental regulations of the City. The City Council hereby finds that this action is not subject to CEQA because the approval of this Settlement Agreement is not a “project” pursuant to Sections 15060(c)(2) and 15060(c)(3) of Title 14 of the California Code of Regulations.
Moreover, under Section 15061(b)(3) of the State CEQA Guidelines, this action is exempt from the requirements of CEQA because it can be seen with certainty that the provisions contained herein would not have the potential for causing a significant effect on the environment. The environmental impacts of the CCRM project have already been examined as part of the entitlement process and the approval of the Development Agreement, and any future development of Parcel C will be subject to environmental review at that time.
ATTACHMENTS:
1. Proposed Settlement Agreement
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RECORDING REQUESTED BY
AND WHEN RECORDED, MAIL TO:
City of Malibu
Attention: City Clerk
23815 Stuart Ranch Road
Malibu, California 90265
SPACE ABOVE THIS LINE FOR RECORDER’S USE
SETTLEMENT AGREEMENT
This Settlement Agreement (“Agreement”) is entered into as of August 14, 2023, (the “Effective Date”) by and between Cross Creek Ranch Malibu, LLC, as successor to Malibu Development Company LLC, (“CCRM”) and the City of Malibu (“City”). CCRM and the City are referred to cumulatively as the “Parties,” or singularly as a “Party.” The Parties intend by this Agreement to compromise and fully resolve all of CCRM’s claims of tolling under Development Agreement 07-001, approved by Malibu City Council Ordinance No. 330, approved by the Coastal Commission on March 10, 2010, and recorded as Document No. 20150150136 on February 10, 2015, (“Development Agreement”) and which pertains to development and operational rights for the Cross Creek Ranch shopping center and development (formerly known as La Paz Ranch) (“Cross Creek Ranch”) ( “CCRM’s Tolling Claim”).
RECITALS
WHEREAS (i) CCRM’s Tolling Claim contends that a time-constrained contractual entitlement to certain benefits pursuant to the Development Agreement has been tolled in accordance with the terms of the Development Agreement, (ii) the City disputes the merit/extent of the Tolling Claim, and (iii) in the absence of a negotiated resolution of CCRM’s Tolling Claim, the claim will need to be resolved by costly and time-consuming litigation.
AGREEMENT
NOW, THEREFORE, in order to resolve their differences in an efficient and economical manner, and in consideration of the mutual covenants, promises and undertakings set forth herein and other consideration, the receipt and adequacy of which the Parties hereby acknowledge, the Parties agree as set forth below.
1. Additional Tolling. The Development Agreement’s term shall be tolled such that it expires on August 14, 2024 (“Additional Tolling Term”); however, from the execution of this Agreement to the end of the Additional Tolling Term, CCRM’s rights under the Development Agreement shall be limited as set forth below. No further tolling shall be requested or granted. CCRM understands that this Agreement resolves all disputes regarding tolling of the Development Agreement’s term, and CCRM waives any claim to further tolling that exists now, or that may come to exist at any point in the future, regardless of any contrary provision in the Development Agreement.
Attachment 1
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2. Formula Retail Restrictions During Additional Tolling Term.
Notwithstanding any contrary provision of the Development Agreement, Cross Creek Ranch shall comply with the Formula Retail Ordinance (Malibu Ordinance No. 431 and Malibu Municipal Code section 17.61) subject to the following exceptions. a. In addition to the 30 percent formula retail uses allowed under Malibu Municipal Code (“MMC”) section 17.61.030.B(2)(a), during the Additional Tolling Term CCRM may lease to non-exempt formula retail tenants for up to an additional 20 percent of the shopping center’s total gross floor area, excluding the floor area occupied by exempt formula retail defined in Section 17.61.020.A(1)-(8); which tenants may then continue to operate indefinitely like non-exempt formula retail tenants that existed prior to the City’s adoption of the Formula Retail Ordinance so long as those tenants remain, but shall only be replaced by other non-exempt formula retail tenants if doing so complies with the Formula Retail Ordinance as it exists at the time such replacement occurs.
(1) To avoid doubt, this means that there will be two different types of non-exempt formula retail uses: (i) the standard 30% type that is provided by the Formula Retail Ordinance, and separately (ii) a 20% compromise type that may be secured only during the Additional Tolling Term and has more restrictions than the first type. These two types of non-exempt formula retail tenants will be entirely separate and shall remain distinct so one does not affect the other.
For the second type, the Parties agree that submittal of a tenant’s application for a Planning Clearance during the Additional Tolling Period shall allow that tenant to open and operate as detailed herein.
To ensure clarity, CCRM shall designate which type of tenant each non-exempt formula retail tenant is upon the submittal of each Planning Clearance Application for a non-exempt formula retail tenant. The Planning Director will review the 20% compromise type for compliance with this Agreement, which shall be reported to the City Council and City Attorney (whereas the standard 30% type shall be reported to the Planning Commission pursuant to MMC section 17.61.030(C)). For the standard 30% type, CCRM waives any claim of exemption from the requirements of the Formula Retail Ordinance except as stated in (b) and (c) of this Section regarding percent of the ground floor that may be occupied, and the provision for three non-exempt formula retail clients to occupy a 5,000 square foot space.
(2) To avoid a sense of sameness and familiarity that the Formula Retail Ordinance seeks to prevent, the non-exempt formula retail tenants in this additional 20 percent of the center shall be restricted to tenants that do not have ten or more stores anywhere in the counties of Los Angeles, Ventura, and Orange.
b. Notwithstanding MMC section 17.61.030.B(2)(b), during the Additional Tolling Term Cross Creek Ranch may lease to non-exempt formula retail tenants that cumulatively occupy up to 60 percent of the ground floor spaces (compared to 40 percent in the Formula Retail Ordinance), which tenants may then continue to operate indefinitely like nonexempt formula retail tenants that existed prior to the adoption of the Formula Retail Ordinance 65273.00001\41554805.1
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but shall only be replaced if doing so complies with the Formula Retail Ordinance as it exists at the time such replacement occurs.
c. Notwithstanding MMC section 17.61.030.B(1), during the Additional Tolling Term Cross Creek Ranch may lease to up to three non-exempt formula retail tenants that occupy up to 5,000 square feet (compared to 4,000 square feet in the Formula Retail Ordinance), which tenants may then continue to operate like non-exempt formula retail tenants that existed prior to the adoption of the Formula Retail Ordinance but shall only be replaced if doing so complies with the Formula Retail Ordinance as it exists at the time such replacement occurs.
3. Expedited Processing During Additional Tolling Term. During the Additional Tolling Term the City shall comply with Section 5.5 of the Development Agreement (“CITY Processing of Permit Applications On An Expedited Basis”) by expediting the processing of all permits, including concurrent processing of applications by various City departments (e.g., Planning Clearances for tenant spaces and Building & Safety-issued tenant improvement permits).
Failure to provide expedited processing shall not result in additional tolling of this Agreement or the Development Agreement.
4. Expanded City Rights Regarding Parcel C. With respect to Parcel C, CCRM waives all rights, including those provided under Section 6.4.1 of the Development Agreement, for Parcel C to be reconveyed to it, thereby giving the City an infinite time to build an approved use on Parcel C instead of the approximately six and one-half years the City currently has remaining. However:
a. The City shall not use Parcel C as a wastewater treatment facility; and
b. Parcel C shall be used for an approved use under Section 6.3.2 of the Development Agreement or any of the following additional uses to which CCRM hereby consents:
(1) a municipal auditorium/community performing arts center; (2) art gallery or exhibition space;
(3) a movie theater;
(4) sports or recreation facilities with appropriate sound attenuation; or (5) any other City-approved use that does not substantially negatively impact the operations, peacefulness, or economic health of Cross Creek Ranch in CCRM’s reasonable business judgment,
confirmation of which CCRM shall not unreasonably withhold.
5. Planning Support to the City Regarding Parcel C. To assist the City in planning for the future use of Parcel C, upon the City’s request and at CCRM’s sole expense, not to exceed $100,000, CCRM shall provide to the City site planning and preliminary design services using CCRM’s in-house and outside planning and design team.
6. Free Parking For Parcel C. To assist the City in the future use of Parcel C, and provided that the City obtains a joint use and common parking facilities approval pursuant to 65273.00001\41554805.1
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MMC section 17.48.040 and/or Malibu Local Implementation Plan section 3.14.4 (to which CCRM shall consent and not object or challenge, but CCRM may express any concerns or preferences to the Planning Commission and/or City Council), CCRM shall allow the City to use parking facilities at Cross Creek Ranch to provide up to half of the parking required for the City’s future use of Parcel C, at no charge to the City.
7. Additional Financial Support to the City Regarding Parcel C. In addition to any other benefits or payments provided to the City pursuant to the Agreement and Development Agreement, CCRM shall pay the City an additional $250,000 in five equal annual installments, with the first $50,000 payment to be made within 30 days after the first Cross Creek Ranch tenant opens to the public and with the remaining four $50,000 payments to be made on the annual anniversaries of that first payment date.
8. Release of CCRM’s Tolling Claim. CCRM hereby releases and forever discharges the City and its boards, commissions, departments, bureaus, representatives, agents, employees, attorneys and assigns, from any and all claims, demands, causes of action, obligations, damages, rights of subrogation or indemnity, attorneys’ fees, costs and liabilities of any nature whatsoever, which CCRM ever had, now has or may claim to have against the City or its boards, commissions, departments, bureaus, representatives, agents, employees, attorneys and assigns for any reason that arises out of CCRM’s Tolling Claim or the Development Agreement
9. Attorneys’ Fees and Costs. CCRM shall pay the City $40,000 for the City’s attorneys’ fees and costs related to this Agreement, to be paid within 30 days after the first Cross Creek Ranch tenant opens to the public. Otherwise, the Parties shall bear their own attorneys’ fees and costs in connection with CCRM’s Tolling Claim and the negotiation and preparation of this Agreement.
10. Entire Agreement. This Agreement: (i) constitutes the entire agreement between the Parties concerning the subject matter hereof, (ii) supersedes any previous oral or written agreements concerning the subject matter hereof, and (iii) shall not be modified except by a writing executed by the Parties.
11. Benefitted Parties. This Agreement shall be binding upon and inure to the benefit of each of the Parties and their representatives, heirs, devisees, successors and assigns.
12. Running With the Land. This Agreement shall run with the land, and all of CCRM’s obligations herein shall be fully binding on its successors and assigns. CCRM is the owner of Parcel A: APN 4458-022-032 and Parcel B: APN 4458-022-033 (together 23465 Civic Center Way), the City is the owner of Parcel C: APN 4458-022-908 (23465 Civic Center Way), and this Agreement shall be recorded against these properties.
13. Construction, Choice of Law and Venue. The terms of this Agreement are the product of arms-length negotiations between the Parties, through their respective counsel of choice, and no provision shall be construed against the drafter thereof. This Agreement shall be governed by and construed in accordance with the laws of the State of California. The venue for any disputes concerning this Agreement shall be in the County of Los Angeles. Any Party may enforce the terms of this Agreement.
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14. Counterparts and Electronic Signatures. This Agreement may be executed in counterparts with the same force and effectiveness as though executed in a single document.
This Agreement may be signed by some or all signers electronically (e.g., by facsimile, electronic mail, or other electronic means of affixing a signature) and, if so, shall have the same force and effectiveness as an agreement executed with an original ink signature.
15. Authority. Each signatory to this Agreement represents and warrants that the signer is authorized to sign this Agreement on behalf of the Party for which the signer is signing, and thereby to bind that Party fully to the terms of this Agreement.
16. Non-Severability. The Parties agree that each and every provision of this Agreement is critical to the Parties’ decision to enter into this Agreement. Therefore, if any provision of this Agreement is held invalid or unenforceable in any final, non-appealable judgment of a court of competent jurisdiction, this Agreement shall become void and the Parties shall be restored to their respective positions prior to the Effective Date to the greatest extent possible.
17. Incorporation of Recitals. The recitals contained herein are hereby incorporated by reference and are material and binding upon the Parties hereto.
AGREED TO AND ACCEPTED AS OF THE EFFECTIVE DATE:
CROSS CREEK RANCH MALIBU, LLC
By:
Name: Bryan Gordon
Its: Chief Executive Officer
ACKNOWLEDGMENT
STATE OF CALIFORNIA )
)ss.
COUNTY OF ___________________ )
On _______________, before me, _____________________________________ Date Name and Title Officer (e.g., “Jane Doe, Notary Public) personally appeared _______________________________________________________ Name of Signer(s)
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the forgoing paragraph is true and correct.
A notary public or other officer completing this
certificate verifies only the identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
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WITNESS my hand and official seal.
____________________________
Notary Public
(seal)
CITY OF MALIBU
By: _____________________________ Dated: _______________________ STEVE MCCLARY, City Manager
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
County of Los Angeles
On ______________________, before me, Kelsey Pettijohn, City Clerk for the City of Malibu, personally appeared Steve McClary, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
____________________________________
KELSEY PETTIJOHN, City Clerk
(seal)
APPROVED AS TO FORM:
By:
Trevor Rusin
Interim City Attorney
LATHAM & WATKINS LLP
By:
Beth P. Gordie
Attorneys for CROSS CREEK RANCH MALIBU, LLC
Agenda Item # 7.A.
Council Agenda Report
To: Mayor Silverstein and the Honorable Members of the City Council Prepared by: Mary Linden, Executive Assistant
Approved by: Steve McClary, City Manager
Date prepared: June 21, 2023 Meeting date: August 14, 2023 Subject: Designation of Voting Delegate and Alternate Voting Delegate(s) for the 2023 League of California Cities Annual Conference
RECOMMENDED ACTION: Designate the City’s voting delegate and alternate voting delegate(s) for the League of California Cities 2023 Annual Conference scheduled for September 20-22, 2023 in Sacramento.
FISCAL IMPACT: There is no fiscal impact associated with the recommended action.
WORK PLAN: This item was not included in the Adopted Work Plan for Fiscal Year (FY) 2022-23. This project is part of normal staff operations. Staff continue to work on ongoing projects and normal business while the FY 2023-24 Work Plan is finalized.
DISCUSSION: The League of California Cities 2023 Annual Conference is scheduled for September 20-22, 2023 in Sacramento. As part of the Conference, the League will hold its Annual Business Meeting on Friday, September 22, during which League membership considers and takes action on resolutions that establish League policy.
In order to vote at the Annual Business Meeting, the League requires City Council action to designate a voting delegate. The Council may also choose to designate up to two alternate voting delegates. The League must be notified of the City’s delegates prior to August 28, 2023. Staff will notify the League of the Council’s appointments.
ATTACHMENTS: Memo from League of California Cities dated June 21, 2023 City Council Meeting
08-14-23
Item
7.A.
1400 K Street, Suite 400, Sacramento, CA 95814 • 916.658.8200 • calcities.org DATE: Wednesday, June 21, 2023
TO: Mayors, Council Members, City Clerks, and City Managers RE: DESIGNATION OF VOTING DELEGATES AND ALTERNATES
League of California Cities Annual Conference and Expo, Sept. 20-22, 2023, Sacramento SAFE Credit Union Convention Center
Every year, the League of California Cities convenes a member-driven General Assembly at the Cal Cities Annual Conference and Expo. The General Assembly is an important opportunity where city officials can directly participate in the development of Cal Cities policy.
Taking place on Sept. 22, the General Assembly is comprised of voting delegates appointed by each member city; every city has one voting delegate. Your appointed voting delegate plays an important role during the General Assembly by representing your city and voting on resolutions.
To cast a vote during the General Assembly, your city must designate a voting delegate and up to two alternate voting delegates, one of whom may vote if the designated voting delegate is unable to serve in that capacity. Voting delegates may either be an elected or appointed official.
Please complete the attached voting delegate form and email it to Cal Cities office no later than Monday, August 28.
New this year, we will host a pre-conference information session for voting delegates to explain their role. Submitting your voting delegate form by the deadline will allow us time to establish voting delegate/alternate records prior to the conference and provide preconference communications with voting delegates.
Please view Cal Cities’ event and meeting policy in advance of the conference.
Action by Council Required. Consistent with Cal Cities bylaws, a city’s voting delegate and up to two alternates must be designated by the city council. When completing the attached Voting Delegate form, please attach either a copy of the council resolution that reflects the council action taken or have your city clerk or mayor sign the form affirming that the names provided are those selected by the city council.
Please note that designating the voting delegate and alternates must be done by city council action and cannot be accomplished by individual action of the mayor or city manager alone.
Council Action Advised by August 28, 2023
Attachment 1
Conference Registration Required. The voting delegate and alternates must be registered to attend the conference. They need not register for the entire conference; they may register for Friday only. Conference registration is open on the Cal Cities website.
For a city to cast a vote, one voter must be present at the General Assembly and in possession of the voting delegate card and voting tool. Voting delegates and alternates need to pick up their conference badges before signing in and picking up the voting delegate card at the voting delegate desk. This will enable them to receive the special sticker on their name badges that will admit the voting delegate into the voting area during the General Assembly.
Transferring Voting Card to Non-Designated Individuals Not Allowed. The voting delegate card may be transferred freely between the voting delegate and alternates, but only between the voting delegate and alternates. If the voting delegate and alternates find themselves unable to attend the General Assembly, they may not transfer the voting card to another city official.
Seating Protocol during General Assembly. At the General Assembly, individuals with a voting card will sit in a designated area. Admission to the voting area will be limited to the individual in possession of the voting card and with a special sticker on their name badge identifying them as a voting delegate.
The voting delegate desk, located in the conference registration area of the SAFE Credit Union Convention Center in Sacramento, will be open at the following times:
Wednesday, Sept. 20, 8:00 a.m.- 6:00 p.m. and Thursday, Sept. 21, 7:30 a.m.- 4:00 p.m. On Friday, Sept. 22, the voting delegate desk will be open at the General Assembly, starting at 7:30 a.m., but will be closed during roll calls and voting.
The voting procedures that will be used at the conference are attached to this memo.
Please share these procedures and this memo with your council and especially with the individuals that your council designates as your city’s voting delegate and alternates.
Once again, thank you for completing the voting delegate and alternate form and returning it to Cal Cities office by Monday, Aug. 28. If you have questions, please contact Zach Seals at [email protected].
Attachments:
• General Assembly Voting Guidelines
• Voting Delegate/Alternate Form
• Information Sheet: Cal Cities Resolutions and the General Assembly 1400 K Street, Suite 400, Sacramento, CA 95814 • 916.658.8200 • calcities.org General Assembly Voting Guidelines
1. One City One Vote. Each member city has a right to cast one vote on matters pertaining to Cal Cities policy.
2. Designating a City Voting Representative. Prior to the Cal Cities Annual Conference and Expo, each city council may designate a voting delegate and up to two alternates; these individuals are identified on the voting delegate form provided to the Cal Cities Credentials Committee.
3. Registering with the Credentials Committee. The voting delegate, or alternates, may pick up the city's voting card at the voting delegate desk in the conference registration area. Voting delegates and alternates must sign in at the voting delegate desk. Here they will receive a special sticker on their name badge and thus be admitted to the voting area at the General Assembly.
4. Signing Initiated Resolution Petitions. Only those individuals who are voting delegates (or alternates), and who have picked up their city’s voting card by providing a signature to the credentials committee at the voting delegate desk, may sign petitions to initiate a resolution.
5. Voting. To cast the city's vote, a city official must have in their possession the city's voting card and voting tool; and be registered with the credentials committee. The voting card may be transferred freely between the voting delegate and alternates but may not be transferred to another city official who is neither a voting delegate nor alternate.
6. Voting Area at General Assembly. At the General Assembly, individuals with a voting card will sit in a designated area. Admission to the voting area will be limited to the individual in possession of the voting card and with a special sticker on their name badge identifying them as a voting delegate.
7. Resolving Disputes. In case of dispute, the credentials committee will determine the validity of signatures on petitioned resolutions and the right of a city official to vote at the General Assembly.
CITY: ________________________________________
2023 ANNUAL CONFERENCE
VOTING DELEGATE/ALTERNATE FORM
Please complete this form and return it to Cal Cities office by Monday, August 28, 2023.
Forms not sent by this deadline may be submitted to the Voting Delegate Desk located in the Annual Conference Registration Area. Your city council may designate one voting delegate and up to two alternates.
To vote at the General Assembly, voting delegates and alternates must be designated by your city council. Please attach the council resolution as proof of designation. As an alternative, the Mayor or City Clerk may sign this form, affirming that the designation reflects the action taken by the council.
Please note: Voting delegates and alternates will be seated in a separate area at the General Assembly. Admission to this designated area will be limited to individuals (voting delegates and alternates) who are identified with a special sticker on their conference badge. This sticker can be obtained only at the voting delegate desk.
1. VOTING DELEGATE
Name:
Title:
2. VOTING DELEGATE - ALTERNATE
Name:
Title:
Email: _______________________________
Email: ______________________________
3. VOTING DELEGATE - ALTERNATE
Name:
Title:
Email: _____________________________
ATTACH COUNCIL RESOLUTION DESIGNATING VOTING DELEGATE AND ALTERNATES OR ATTEST: I affirm that the information provided reflects action by the city council to designate the voting delegate and alternate(s).
Name: ____________________________________ Email: _________________________________ Mayor or City Clerk: ________________________ Date: __________ Phone: ________________ (circle one) (signature) Please complete and email this form to [email protected] by Monday, August 28, 2023.
Sixty days before the
Annual Conference and
Expo, Cal Cities members
may submit policy
proposals on issues of
importance to cities. The
resolution must have the concurrence
of at least five additional member cities
or individual members.
How it works: Cal Cities
Resolutions and the General Assembly
General Assembly
General Resolutions
Policy Committees
Developing League of California Cities policy is a dynamic process that engages a wide range of members to ensure that we are representing California cities with one voice. These policies directly guide Cal Cities advocacy to promote local decision-making, and lobby against statewide policy that erodes local control.
The resolutions process and General Assembly is one way that city officials can directly participate in the development of Cal Cities policy. If a resolution is approved at the General Assembly, it becomes official Cal Cities policy. Here’s how Resolutions and the General Assembly works.
The petitioned resolution
is an alternate method
to introduce policy
proposals during the
annual conference. The
petition must be signed by
voting delegates from 10% of member
cities, and submitted to the Cal Cities
President at least 24 hours before the
beginning of the General Assembly.
Petitioned Resolutions
The Cal Cities President
assigns general resolutions
to policy committees where
members review, debate,
and recommend positions for
each policy proposal. Recommendations are
forwarded to the Resolutions Committee.
Who’s who
The Resolutions
Committee includes
representatives from
each Cal Cities diversity
caucus, regional
division, municipal
department, policy
committee, as well as
individuals appointed by
the Cal Cities president.
Voting delegates
are appointed by each
member city; every city
has one voting delegate.
The General Assembly
is a meeting of the
collective body of
all voting delegates —
one from every
member city.
Seven Policy
Committees meet
throughout the year to
review and recommend
positions to take on
bills and regulatory
proposals. Policy
committees include
members from each Cal
Cities diversity caucus,
regional division,
municipal department,
as well as individuals
appointed by the Cal
Cities president.
During the General Assembly, voting delegates
debate and consider general and petitioned
resolutions forwarded by the Resolutions Committee.
Potential Cal Cities bylaws amendments are also
considered at this meeting.
Cal Cities policy
development is a
member-informed
process, grounded
in the voices and
experiences of city
officials throughout
the state.
For more information visit www.calcities.org/general-assembly Prior to the Annual Conference and Expo
Resolutions Committee
The Resolutions Committee
considers all resolutions.
General Resolutions approved1
by either a policy committee
or the Resolutions Committee
are next considered by the General
Assembly. General resolutions not approved,
or referred for further study by both a policy
committee and the Resolutions Committee
do not go the General Assembly. All
Petitioned Resolutions are considered by the
General Assembly, unless disqualified.2
• Voting delegates will receive increased communications to prepare them for their role during the General Assembly.
• The General Assembly will take place earlier to allow more time for debate and discussion.
• Improvements to the General Assembly process will make it easier for voting delegates to discuss and debate resolutions.
What’s new in 2023?
During the Annual Conference and Expo
1 The Resolution Committee can amend a general resolution prior to sending it to the General Assembly. 2 Petitioned Resolutions may be disqualified by the Resolutions Committee according to Cal Cities Bylaws Article VI. Sec. 5(f).
Agenda Item # 7.B.
Council Agenda Report
To: Mayor Silverstein and the Honorable Members of the City Council Prepared by: Mary Linden, Executive Assistant
Approved by: Joseph D. Toney, Assistant City Manager
Date prepared: August 8, 2023 Meeting date: August 14, 2023 Subject: Los Angeles County National Oceanic and Atmospheric Administration (NOAA) Climate Resilience Regional Challenge – SUPPORT (Mayor Silverstein)
RECOMMENDED ACTION: At the request of Mayor Silverstein, authorize the City to partner with Los Angeles County in pursuing the NOAA Climate Resilience Regional Challenge competitive funding opportunity as a co-applicant.
FISCAL IMPACT: There is no fiscal impact associated with the recommended action at this time. Should the County be selected to apply, the grant is due February 14, 2024, and any fiscal impact will likely not be known until FY 2024-25.
WORK PLAN: This item was not included in the Adopted Work Plan for FY 2022-23. This project is part of normal staff operations. Staff continue to work on ongoing projects and normal business while the FY 2023-24 Work Plan is finalized.
DISCUSSION: The Staff of Los Angeles (LA) County Supervisor Lindsey Horvath has contacted Mayor Silverstein to request the City’s support as a co-applicant for the NOAA Climate Resilience Regional Challenge. If funding is approved, it is anticipated that significant emphasis will be on the coastline in Malibu, which comprises a material portion of the coastline of LA County, and which is an important focus of Supervisor Horvath. A letter of intent is due to NOAA on August 21, 2023.
The County's Department of Beaches and Harbors is managing a unique set of circumstances, including a combination of extreme erosion caused by storms, high tides, and tall surf; potential future sea level rise; and a deficit of sediment in critical locations. In 2016, LA County initiated a process of proactive preparedness by assessing the potential threat that its public beach assets may face through the year 2100. The Sea Level Rise City Council Meeting
08-14-23
Item
7.B.
Agenda Item # 7.B.
Vulnerability Assessment presents an overview of existing LA County beach settings, assesses the potential threat that future sea level rise may pose on recreational assets, and introduces appropriate strategies to be considered to begin a dialog on how best to address the forecasts. The assessment summarizes the projections from prominent studies, particularly three from the NOAA’s Climate Program Office, the National Research Council, and the Intergovernmental Panel on Climate Change, and includes potential vulnerability forecasts of the LA County shoreline as projected in a coastal storm modeling system (CoSMos) study by the US Geological Survey (USGS). The assessment includes strategies consistent with continued use of temporary sand berm programs for short-term management, beach nourishment for future management, and possible natural dunes, elevated foundations or even retreat as long term management.
In 2023, LA County conducted an updated coastal resiliency study and is in the process of finalizing the report. This study builds on the 2016 assessment and evaluates the County's 19 beaches for vulnerable areas, determining the effects of the vulnerabilities - short, medium, or long term - to help prioritize the County's response in addressing these issues. At this time, the County is developing adaptation strategies for implementation and working to identify potential partnerships and funding opportunities.
LA COUNTY AND NOAA CLIMATE RESILIENCE REGIONAL CHALLENGE:
In anticipation of implementing identified adaptation strategies, the County is pursuing the NOAA Climate Resilience Regional Challenge (Challenge) competitive funding opportunity. The Challenge will support collaborative approaches to achieving resilience in coastal regions with an emphasis on risk reduction, regional collaboration, equity, and building enduring capacity. The Challenge is a $575 million competition with a Letter of Intent phase and two exclusive funding tracks designed to meet the needs of coastal communities wherever they are in the resilience and adaptation process. The County is pursuing Track Two: Implementation of Resilience and Adaptation Actions.
This track will support implementation of transformational resilience and adaptation strategies, along with associated actions for coastal communities anchored in previous planning efforts. Applicants must propose a suite of complementary adaptation actions that together build the resilience of multiple communities within a coastal region, including those that have been marginalized, underserved, or underrepresented. Applicants can apply for not less than $15 million and not more than $75 million, with most awards being between $25 million and $50 million. Total funding available for all Track Two awards is up to $550 million.
The Department of Beaches & Harbors is preparing a Letter of Intent to NOAA for the funding, which is due on August 21, 2023. The proposal involves deployment of naturebased adaptation actions across the 19 beaches managed by the County to reduce risks and vulnerability of the coast to extreme erosion and projected sea level rise. If selected
Agenda Item # 7.B.
to apply, the full application is due February 13, 2024. As valuable partners, the County would greatly appreciate the support from the City of Malibu in pursuing this funding opportunity. Furthermore, the strength of the application will be enhanced by demonstrating greater regional collaboration with a shared vision on how to improve coast resiliency. The County has reached out to other beach cities within LA County and hopes the City of Malibu will join as a co-applicant.
Supervisor Horvath’s office has informed Mayor Silverstein that the County is prepared to perform the lion’s share of the work in preparing the application materials and pursuing the grant, and that substantial involvement of the City’s Staff, while welcome, is not required.
Mayor Silverstein is requesting Council authorization for the City to partner with LA County in its application for the NOAA Climate Resilience Regional Challenge.
ATTACHMENTS: NOAA Climate Resilience Regional Challenge-Presentation
LOS ANGELES COUNTY
DEPARTMENT OF BEACHES & HARBORS
JULY 27, 2023
NOAA Climate Resilience
Regional Challenge
Los Angeles County: By The Numbers
Los Angeles County's Beaches At A Glance
• Attract upwards of 50 million visitors annually.
• Generate between $1.3 billion and 1.6 billion for
the local economy.
• Independent studies identify Los Angeles County
beaches as the foremost recreational destination
in Southern California and one of the most
popular attractions in the U.S. and around the
world.
Dept. of Beach & Harbors' Strategic Plan
"The focus is on making coastal communities
more resilient to climate change and hazardous
weather, especially communities that are
marginalized, underserved, and
underrepresented."
- Jeffrey Payne,
NOAA Office for
Coastal Management
Climate Resilience Regional Challenge
Los Angeles County: Population Vulnerability
Los Angeles County: Population: 9,829,544 (2021)
Dept. of Beach & Harbors: Beach Access
Pacific Rim - Coastal Access
Los Angeles
L.A.’s Coastal Sub-Regions
Northern
Central
Southern
Littoral Cells of Southern California
California's Waves Are Getting Bigger
Extreme Erosion due to Storm Events & High Tides
Point Dume - Access road, 2021
Artificial Beach Nourishment
1938
2017
Hermosa Beach
Past Planning:
2016 Sea-Level Rise Vulnerability Assessment
2016 report can be found here: https://beaches.lacounty.gov/sea-level-rise 2023 Coastal
Resiliency Study
Phase 1: Inventory & assess entire
coastline for vulnerable areas (complete)
Phase 2: Determine effects of
vulnerabilities and categorize them as
short-, medium-, or long-term, and
establish an overall vulnerability ranking
for each beach (complete)
Phase 3: Develop adaptation strategies
that will be implemented at 3 sites (in
progress)
Phase 4: Identify Partnerships and
Funding Opportunities (in progress)
NOAA Grant Proposal: Deploy Nature-Based Adaptation
Strategies Across All 19 Los Angeles County Beaches
Zuma & Point Dume: Living Shoreline & Breakwater
Hybrid Living Shoreline
Sand transport offshore and
Nourish Zuma and Westward Beaches downcoast in winter
Using Sand Dredged from Off of LAX
Install Offshore Reef
Wider Beach (red line)
• Add sand to both Zuma and Westward to widen the
entire beach between two the headlands of La
Chuza Point and Point Dume and provide space for dune habitat restoration/living shoreline enhancements.
• Install a living breakwater/artificial rocky reef to hold sand in place longer at Westward Beach and
enhance marine habitat.
o Check proposed actions against constraints of
Marine Conservation Area.
Living Breakwaters:
Bio-enhancing Shoreline Armoring
Living Shorelines
Point Dume (pre-erosion)
Potential Project – Point Dume (Malibu Living Shoreline Project) Dockweiler: Dune Habitat Enhancement
Constructed Sand Transport Barrier
Sand blown into
parking areas Dune Fencing
o Dune fencing to trap sand and encourage dune growth
away from parking areas, combined with removal of
non-native and planting of additional native species.
o Barrier to prevent sand buildup along bikeway and
parking areas.
• Reduced ongoing maintenance needs.
• Improved access.
• Potential benefit to nearby dunes by reducing loss.
of sand into parking areas.
Redondo: Living Shoreline
o Add sand to increase beach width, providing a buffer from winter wave and erosion hazards.
• Increased usable beach area and width for living
shoreline/dune habitat restoration.
• Protection for pedestrian pathway.
o Sand retained through dune habitat restoration/living shoreline and an enhanced or modified groin.
• Reduced need for renourishment.
Concrete groin
Example: Sand-retention groin at Seal Beach pier.
Lack of sand supply,
potential loss upcoast
into marina or offshore.
Increased Beach Width
Through Nourishment
Removal of Existing
Retention Structure
Addition of Upcoast
Retention Structure
Potential Partnerships
CHIEF, PLANNING DIVISION
DEPARTMENT OF BEACHES AND HARBORS
COUNTY OF LOS ANGELES
13837 FIJI WAY
MARINA DEL REY, CA 90292
WARREN ONTIVEROS
[email protected]
(424) 526-7745