WPCNR FOR THE RECORD. October 27, 2006: Herewith is a copy of the new Memorandum of Understanding delivered to the Common Council Thursday evening. The document has not been accepted by the Common Council, with matters of timetable, terms of reimbursement for expenses, the lease, and a right of first refusal clause under consideration:
MEMORANDUM
OF
UNDERSTANDING
This Memorandum of Understanding (“MOU”) is entered into as of this day of,
by and between THE CITY OF WHITE PLAINS, a municipal corporation, having an office and place of business located at 255 Main Street, White Plains, New York 10601 (the “City”) and ROYAL CHARTER PROPERTIES WESTCHESTER, [NC., a New York not-for-profit corporation, having an office or place of business located at 435 East 70th Sheet, New York, New York 10021 (the “ RCPW”),
GENERAL
RCPW is the owner of approximately 214 acres of land (the “RCPW Site”) in the City. The entire property is situated in the R1-l2.5 zoning district and has received a special permit to use the RCPW Site for “Hospital” purposes as defined in the City’s Zoning Ordinance.
Pursuant to this MOU and the terms and conditions contained herein, the City proposes to cause to be subdivided, as a Conservation Development approximately 65.5 acres of the property owned by RCPW (the “Proposed Conservation Development”), with (a) approximately 5.5 acres of the RGPW Site being subdivided and the development rights associated with that parcel, defined herein below as the “Park and Recreation Parcel,” being transferred to the “Residential Parcel”, also defined herein below, pursuant to the City’s conservation development zoning and subdivision regulations, and such area set aside for Park and Recreation purposes (the “Park and Recreation Parcel”) for use by all residents of the City with the rights of access and control by the city described herein below, and (b) a parcel of approximately 60 acres of the RCPW site having frontage on Bryant Avenue, for Residential Purposes (the “Residential Parcel”). The City proposes to undertake the environmental review of the environmental impact of the Proposed Conservation Development in accordance with Section 5.7 of the City’ s Zoning Ordinance and NY State SEQR regulations. Such use of the RCPW Site will require an amendment to RCPWs master plan and special permit pursuant to Section 6.7.5 of the Zoning Ordinance. The Proposed Conservation Development, including the Park and Recreation Parcel and the Residential Parcel, are depicted on the “Conceptual Conservation Development Plan”, annexed hereto as Exhibit A for illustration purposes only. Exhibit Al will consist of a conventional subdivision plan and Exhibit A2 will be a proposed Conservation Development Plan. Exhibits Al and A2 shall be finalized by the parties, subject to such modifications as may be made during the environmental, subdivision and special permit processes.
TERMS OF AGREEMENT
I – The City shall prepare, at its cost and expense, and submit to all appropriate governmental agencies, including but not limited to the White Plains Planning Board (“Planning Board”), an application for subdivision of the approximately 214 acres of land owned by RCPW, including the subdivision of the Residential Parcel and the Park and Recreation Parcel generally as shown on the Conceptual Conservation Development Plan. The Conceptual Conservation Development Plan shall be used for Informal Review pursuant to Section 5.7.4.1 of the Zoning Ordinance and to establish the lot count for the Conservation Development. This paragraph is made subject to paragraph 3 herein below. The City shall be the applicant for the subdivision and environmental approval of the Proposed Conservation Development. When mutually deemed ready for submission to start the subdivision process, the proposed plan for the proposed Conservation Development shall be submitted to RCPW, which shall, within forty-five (45) days thereafter, review and comment on such plan.
2. Upon final agreement of the parties on the proposed Conservation Subdivision Development, RCPW shall submit to the Common Council an application to amend the special permit issued to RCPW and to amend RCPW’s Master Plan, which is a part of the special permit, to remove the portion of the property subject to the proposed Conservation Development from the Hospital use special permit, such action by the Common Council being made subject to the granting final conservation subdivision plat approval for the proposed Conservation Development, and authorize the use of the Residential Parcel for residential purposes and the use of the Park and Recreation Parcel for park and recreational purposes upon granting of final conservation subdivision plat approval.
3. The City shall, subject to RCPW’s approval, which shall not be unreasonably withheld or delayed, retain all consultants (including approved land use counsel) it deems reasonable and/or necessary to pursue the Proposed Conservation Subdivision, shall prepare, or cause to be prepared, all drawings, studies, plans, reports and documents, and shall pay for all costs necessary and required to obtain environmental and other approvals for the Proposed Conservation Subdivision. ,Attached hereto as Exhibit C is the agreed-upon budget for the costs of the review process for the proposed Conservation Development (the “Approved Budget”). The Approved Budget may be amended from time to time by ants upon the agreement between the parties. RCPW shall not be obligated to reimburse the City (as such reimbursement may be effected as described in this paragraph 3) its allocable portion of any expenditures that exceed the amounts set forth in the Approved Budget. In the event the City desires to amend any application, plan, sketch or drawing in connection with the Proposed Conservation Subdivision, such amendment shall not be made, submitted or filed without the prior approval of RCPW, which approval shall not be unseasonably withheld. Each party shall be responsible for their own attorney’s fees in connection with (a) any legal proceedings or challenges of such approvals or (b) any requests by such party for services not directly related to the purpose for which land use counsel has been retained, as described in the first sentence of this paragraph 3. The parties hereto shall develop a fair and equitable distribution or allocation of the reasonable third party costs associated with the Residential Parcel, consistent with the Approved Budget, and, upon the granting of fmal approval of the Proposed Conservation Subdivision plat and related environmental review, and after any and all challenges to such approvals have been exhausted (resulting in a non-appealable fmal order or judgement) or the time within which a challenge must be made has expired, RCPW shall reimburse the City for those costs allocable to the Residential Parcel. The City shall be responsible for such costs allocable to the Park and Recreation Parcel. RCPW shall reimburse the City for such costs attributable to the Residential Parcel by conveying to the City additional land adjacent to the Park and Recreation Parcel of equal value in the area (or portion thereof) so designated in Exhibit A2, unless the parties mutually determine that such reimbursement shall be made by cash payment. If RCPW terminates this Agreement without good cause or ceases to proceed in good faith with its efforts to secure necessary governmental and land use approvals for the Proposed Conservation Development in accordance with this MOU, it shall reimburse to the City, in a timely manner, all reasonable costs (consistent with the Approved Budget) expended by the City in obtaining the environmental and all other approvals for the proposed Conservation Subdivision, by cash payment. No such reimbursement shall be required in the event RCPW exercises its rights under paragraph 9 herein.
4. RCPW agrees that upon the granting of final approval of the Proposed Conservation Subdivision plat and related environmental review, and after any and all challenges to such approvals have been exhausted or the time within which a challenge must be made has expired, it shall grant to the City, by written instrument, the undisturbed right to use, occupy, develop and maintain the Park and Recreation Parcel for a period of ninety-nine (99) years, with renewal options that may be exercised by the City.
5. The City shall construct at its sole cost and expense and otherwise provide for all labor and materials it deems necessary to construct all improvements to the Park and Recreation Parcel, including but not limited to ball fields, playgrounds, landscaping, equipment, lighting and fencing, access road (in the location designated in Exhibit A) and retention basin (if required). The Park and Recreation Parcel shall be enclosed by a fence, which shall be similar in height, structural and aesthetic design to the wrought iron fence presently enclosing the RCPW property. RCPW shall have no obligation to pay for the cost of any improvements to the Park and Recreational Parcel. The City shall, after the completion of the initial construct, repair, maintain and, if desired, reconstruct, redevelop, or improve, or cause to be repaired, maintained, reconstructed or redeveloped and improved, the Park and Recreation Parcel, including constructing an access road between the Park and Recreation Parcel and Bryant Avenue, and the City shall pay all costs in connection therewith. The City and RCPW shall execute and record a restrictive covenant to limit the use of the Park and Recreation parcel to recreation use open to the residents of White Plains and theft visitors and guests, and to impose such reasonable restrictions on the use of such Park and Recreation Parcel as may be agreed to by the parties (ugh as, hours of operation, permitted/proscribed activities, noise levels, security, etc.), such agreement not to be unreasonably withheld. The cost to record such restrictive covenant shall be shared equally by the parties.
6. In order to enhance and facilitate RCPW’s operation of the RCPW Site and the conduct of all Hospital activities occurring thereon, all easements, roads, retention basins and points of access to public streets shall be designed so that the same are acceptable to RCPW, including, without limitation, reasonable additional or new means of access to the RCPW site from Bloomingdale Road. Any amendments or changes to the easements, roads, retention basins and points of access shall be subject to approval of RCPW.
7. RCPW shall be responsible to secure, at its sole cost and expense, the approval, if required, of all regulatory agencies having jurisdiction over RCPW in connection with the activities described herein. RCPW shall, within 6 months after the execution of the MOIJ, apply for such approvals and shall diligently seek approval thereafter. RCPW’S failure to secure such approvals which failure shall prevent the use of the Park and Recreation Parcel by the City as contemplated under this MOU, shall constitute a cause under which RCPW is required to reimburse the City by cash payment for all of its costs related to the environmental and other approvals of the Conservation Subdivision.
8. The Planning Department of the City has estimated that the Proposed Subdivision Plat will be ready for final approval within nine months from the date hereof plus any periods necessary to obtain a survey of the Residential Parcel and Park and Recreation Parcel, if not already part of a survey in possession of RCPW, and any review periods for RCPW as described in paragraphs I and 4 herein above (the “Proposed Conservation Subdivision Plan Schedule”). Attached hereto as Exhibit B is a summary of required actions and respective anticipated time frames (“Conservation Subdivision Timeline”), culminating in the Proposed Conservation Subdivision Plan Plat being ready for final approval. The City and RCPW, its successors, assigns and designees, agree to (1) proceed in good faith and with all due expedition in the prosecution and completion of the Proposed Conservation Subdivision and (2) cooperate with each other (a) in promptly filing any applications for approval of the Proposed Subdivision Plan and any amendments thereto, (b) in timely filing any documents in connection with environmental review of the Proposed Conservation Subdivision Plan and any other required actions and ( c) in taking all other steps to achieve the objectives of this MOU consistent with the terms herein and the Proposed Conservation Subdivision Plan Timeline and Proposed Conservation Subdivision Plan Schedule. The City and RCPW shall diligently work together to resolve any issues, misunderstandings or disputes in connection with the Proposed Subdivision Plan and the environmental review in connection therewith.
9. If the Proposed Conservation Subdivision is not approved within the Proposed Conservation Subdivision Schedule or such modified or extended timeline to which the parties may agree, RCPW may withdraw from this Memorandum of Understanding and, upon such withdrawal, neither party shall be bound by the terms and conditions herein. Recognizing the timeline agreed to herein, RCPW agrees that it shall review plans, respond to questions and provide information to the City and its designated consultants in a timely manner.
10. Notwithstanding section 7.6 or any other provision of the Zoning Ordinance, the parties acknowledge that RCPW’s affiliate, New York Presbyterian Hospital (NYPH) submitted a letter to the City, dated as of August 1, 2005 (“Renewal Request”), requesting a renewal of its Special Permit Approval for the Proton Beam Therapy Center/Research facility (“Project”) at the Site. The parties, therefore, agree that such Renewal Request shall be held in abeyance and (a) NYPH and/or RCPW shall not take any further actions in connection with such Special Permit Approval or the Project and (b) the City shall not place such item on the agenda of the Common Council or any other department, board or agency for consideration, until such time that this MOU shall terminate or expire, as set forth herein; it being further understood and agreed that, upon granting of final approval of the Proposed Conservation Subdivision plat and related environmental review, and after any and all challenges to such approvals have been exhausted (resulting in a non-appealable final order or judgement) or the time within which a challenge must be made has expired, such Special Permit Approval shall no longer be effective and NYPH’ s request for renewal thereof shall be deemed withdrawn. The City further agrees that in the event the MOU expires or terminates and NYPH (or RCPW) proceeds with its request for renewal of the Special Permit Approval, the passage of time between NYPH’s timely submission of the Renewal Request and the effective date of the MOU’s termination or expiration shall not be the sole basis of the
City’s consideration of and determination on such Renewal Request.
11. Jurisdiction over any action or proceeding arising out of this Memorandum of Understanding shall be vested in the Supreme Court of the State of New York, County of Westchester.
12. Except as set forth in paragraph 9 above, this MOU may be amended only by written agreement executed by both pasties. The parties agree that this MOU constitutes the entire agreement between the parties and that there are no agreements, contracts, covenants, promises or representations, except as set forth herein.
13. The persons executing this MOU represent that they (a) are executing this instrument on behalf of and as the act of the party for which they sign and Q) possess all requisite authority to execute same on such party’s behalf
14. The parties agree that any notice regarding the MOU shall be sent to the following by ovemight courier or first class mail:
For the City of White Plains:
Paul Wood
Executive Officer
City Hall
255 Main Street
White Plains, NY 10601
(and other parties)
