ORDINANCE 1605
AN ORDINANCE OF THE CITY OF BANNING, CALIFORNIA, AMENDING TABLE 17.08.020 OF SECTION 17.08.020 OF ARTICLE I OF CHAPTER 17.08 OF DIVISION II OF TITLE 17 OF THE CITY OF BANNING MUNICIPAL CODE
TO CLARIFY THAT AFFORDABLE HOUSING USES ARE PERMITTED BY
RIGHT AND ARE NOT SUBJECT TO DISCRETIONARY ACTION IN
SPECIFIED ZONING DISTRICTS AS REQUIRED BY STATE LAW; AND
MAKING A DETERMINATION OF EXEMPTION FROM THE CALIFORNIA
ENVIRONMENTAL QUALITY ACT
The City Council of the City of Banning does hereby ordain as follows:
SECTION 1. Findings and Purpose.
A. On January 9, 2024, the City of Banning adopted a revised Housing Element update for the 6th Cycle based on comments received from the State of California Department of Housing and Community Development (HCD) and the public.
B. The City has submitted its revised Housing Element update to HCD for review and certification. HCD has 60 days to act, during which time the City must adopt certain zoning text amendments described in the Housing Element; including: (1) establishing residential density at 30 dwelling units per acre (DU/AC); (2) establishing a zone or zones that authorizes certain MultiFamily Residential (MFR)/High Density Residential) (HDR) housing projects or as a ministerial action (e.g., "by right"); (3) adopting objective residential development standards decreases the barriers to entry as related to Multi-Family Residential and High Density Residential development; and (4) establishing reasonable regulations for Multi-Family Residential and High Density Residential development, is necessary as a means of documenting and preserving these properties. City staff prepared Zoning Text Amendment 23-97503, as set forth in Ordinance 1600, which amended BMC Title 17 for the purpose of fulfilling the City’s obligations under its Housing Element.
C. On January 10, 2024, the Planning Commission held a duly noticed public hearing on Zoning Text Amendment 23-97503, during which all interested persons were allowed to comment on the matter. After considering all of the evidence and testimony presented at that hearing, the Planning Commission adopted Resolution 2024-02, recommending that the City Council adopt Ordinance 1600 approving Zoning Text Amendment 23-97503.
D. On February 13, 2024, the City Council held a duly noticed public hearing on Zoning Text Amendment 23-97503, during which all interested persons were allowed to comment on the matter, and introduced Ordinance 1600. On February 27, 2024, the City Council adopted Ordinance 1600.
E. On March 14, 2024, City staff forwarded a certified copy of Ordinance 1600 to HCD as proof of rezones required to garner HCD Certification of the City of Banning 6th Cycle Housing Element. By letter dated March 29, 2024, HCD informed the City that Zoning Text Amendment 23-97503, as adopted by Ordinance 1600, did not fully comply with the requirements under Government Code Sections 65583.2(c), (h), or (i). Specifically, HCD stated that with respect to affordable housing uses, the City’s amendments to the Zoning Ordinance must clearly state such uses are permitted “by right” and are not subject to discretionary review within the Medium Density Residential (“MDR”), High Density Residential (“HDR”), Mobile Home Park (“MHP”), and Very High-Density Residential (“VHDR”) Zoning Districts consistent with the requirements under Government Code Section 65583.2.
F. In response to HCD’s March 29, 2024 letter, City staff has prepared Zoning Text Amendment 24-0050, as set forth in this Ordinance, to amend Table 17.08.020 of Section
17.08.020 of Article 1 of Chapter 17.08 of Division II of Title 17 of the Banning Municipal Code to 1343
Ordinance 1605
clarify that affordable housing uses are permitted by right and are not subject to discretionary action, as required under State law, in the MDR, HDR, MHP, and VHDR Zoning Districts when 20 percent (20%) or more of the total unit count is reserved for lower-income households.
G. On May 17, 2024, the City gave public notice by advertising in the Record Gazette, a newspaper of general circulation within the City of Banning, of the holding of a public hearing before the Planning Commission at which the proposed amendments to Title 17 (Zoning) would be considered.
H. On May 29, 2024, the Planning Commission of the City of Banning held a duly noticed public hearing on Zoning Text Amendment 24-0050, during which all interested persons were allowed to comment on the matter.
I. Based on all of the evidence and testimony presented at that hearing, and the entirety of the administrative record in this matter, the Planning Commission recommended that the City Council adopt Ordinance 1605.
J. On June 11, 2024, the City gave public notice by advertising in the Record Gazette, a newspaper of general circulation within the City of Banning, of the holding of a public hearing before the City Council at which the proposed amendments to Title 17 (Zoning) would be considered.
K. On June 25, 2024, the City Council of the City of Banning held a duly noticed public hearing on Zoning Text Amendment 24-0050, during which all interested persons were allowed to comment on the matter.
L. Based on all of the evidence and testimony presented at both hearings, and the entirety of the administrative record in this matter, the City Council finds as follows:
a. All facts and findings set forth above in this Section 1 of the Ordinance are true and correct.
b. This Ordinance is consistent with the goals and policies of the City's revised Housing Element update and the City’s General Plan as a whole. c. This Ordinance is internally consistent with the Banning Municipal Code. d. The proposed Zoning Text Amendment 24-0050 is exempt from the requirements of the California Environmental Quality Act (“CEQA”) and the CEQA Guidelines pursuant to CEQA Guidelines Section 15061(b)(3) because it can be seen with certainty that there is no possibility that the proposed amendment, clarifying that affordable housing uses (where permitted in the City’s Zoning Districts) are permitted by right and are not subject to discretionary action as required under State law, will have a significant effect on the environment. The proposed amendment is an administrative process of the City that will not result in direct or indirect physical changes in in the environment. The City Council has independently reviewed the administrative record concerning the proposed Zoning Text Amendment 24-0050 and the proposed CEQA determination, and based on its own independent judgement, finds that the amendment set forth in this Ordinance is not subject to, or exempt from, the requirements of CEQA and the State CEQA Guidelines pursuant to CEQA Guidelines Section 15061(b)(3).
M. All legal prerequisites to adoption of this Ordinance have occurred.
SECTION 2. Table 17.08.020 (Permitted, Conditional and Prohibited Uses) of Section
17.08.020 (Permitted, Conditional and Prohibited Uses) of Article I (General Provisions) of Chapter 17.08 (Residential Districts) of Division II (Land Use Districts) of Title 17 (Zoning) of the Banning Municipal Code is hereby amended as indicated by the following additions and deletions:
“Table 17.08.020
Permitted, Conditional and Prohibited Residential Uses
Zone R/A R/A/H RR RR/H VLDR LDR MDR HDR* MHP VHDR
Residential Uses
Accessory Dwelling Unit P P P P P P P P P P
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Ordinance 1605
“Table 17.08.020
Permitted, Conditional and Prohibited Residential Uses
Zone R/A R/A/H RR RR/H VLDR LDR MDR HDR* MHP VHDR
Cannabis Commercial
Indoor Cultivation
X X X X X X X X X X
Cannabis Manufacturing
Level 1
X X X X X X X X X X
Cannabis Distribution
Facility
X X X X X X X X X X
Cannabis Microbusiness X X X X X X X X X X
Cannabis Personal
Cultivation6
P P P P P P P P P P
Cannabis Retailer X X X X X X X X X X
Cannabis Testing
Laboratory
X X X X X X X X X X
Other Cannabis Uses X X X X X X X X X X
Commercial cargo/storage
container
P P P P P X X X X X
Community Gardens P P P P P P P P P P
Condominiums and
Townhomes
X X X X C C P P X P
Congregate Care Facility X X X X X P P P X P
Day Care Center P P X X X C C C C C
Day Care Home, Small1 P P P P P P P P P P
Day Care Home, Large2 C C C C C C C C C C
Dormitory X X X X X C C C X C
Farmworker Housing P P P P X X X X X X
Homeless Shelter X X X X X X X C C C
Mobile Home Parks or
Subdivisions
X X X X X X C C P X
Multi-Family Residential
Dwelling
X X X X X C P P X P
Multiple-Family
Affordable Housing (min.
20% lower income, by
non-discretionary
action)7
X X X X X C P P P P
Planned Unit Development X X X P P P P P X P
Residential Care
Facility/Group Home,
Large
X X X X X X C C X C
Residential Care
Facility/Group Home,
Small, Licensed
P P P P P P P P P P
Residential Care
Facility/Group Home,
Small, Unlicensed
X X X X X X C C X C
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Ordinance 1605
“Table 17.08.020
Permitted, Conditional and Prohibited Residential Uses
Zone R/A R/A/H RR RR/H VLDR LDR MDR HDR* MHP VHDR
Second Dwelling Unit P P P P P P P P X P
Single Family Dwelling P P P P P P P C X X
Single Room Occupancy X X X X X X X C X P
Supportive/Transitional
Housing
X X X X X X P P X P
Equestrian Uses
Stables, Private P P P P P X X X X X
Stables, Commercial P C P C C X X X X X
Tack and Feed Stores C C C X X X X X X X
Veterinary Offices and
Hospitals
C X C X C X X X X X
Agricultural Uses
Grazing of Animals P P P P P P X X X X
Kennels and Catteries,
commercial
C C C C C C X X X X
Locally Adaptive Farming P5 P5 C C X X X X X X
Factory Farms with
Genetic Monocultures
X X X X X X X X X X
Ranching P P C C X X X X X X
Recreational Uses
Clubhouses C X C X C C C C C X
Golf Courses and Related
Facilities
C X C X C C C C C X
Swimming Pool/Sports
Club
X X X X C C C C C X
Sports Courts and Fields C X C X C C C C X X
Accessory Uses
Telecommunications
Antennae
C X X X X X X X X X
Garages (for storage of
vehicles only, in excess to
that required under
Chapter 17.28 (Parking
Regulations)
C X C X C C X X X X
Other Uses
Bed and Breakfast C C C C C C C X X X
Boarding House X X X X X X X X X C
Cemeteries C X C X C C X X X X
Churches C X C X C C C C C X
Utility Facilities C C C C C C C C C X
Private Schools C C C C C C C C C X
Neighborhood Oriented
Retail Stores3
X X X X X X C X X X
Temporary Uses4 T T T T T T T T T T
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1 Small family day care homes are permitted by right in single-family residences located in any residential zone. Small family day care homes are not permitted in multiple-family residences. 2 Large family day care homes are conditionally permitted in single-family residences located in any residential zone. Large family day care homes are not permitted in multiple-family residences. 3 Neighborhood-oriented retail stores, as defined in the General Plan, consist of "corner store" type development such as convenience stores, grocery or green grocer, video rental, drug stores, sit down restaurants, coffee shops or coffee bars or similar uses, less than five thousand square feet in total square footage.
4 Temporary uses require temporary use permit. See Chapter 17.108 for provisions. 5 Agricultural employee housing allowed with up to twelve units or thirty-six persons, and/or up to six workers as a single-family use.
6 Cannabis Personal Cultivation must comply with the provisions of Chapter 5.34. 7 Affordable housing developments pursuant to Government Code Section 65583.2 and located within the multi-family housing zoning districts are permitted by right without a public hearing or discretionary action and, in the VHDR district, are permitted at a minimum density of 24 dwelling units to 30 dwelling units per acre.
SECTION 3. If any section, subsection, paragraph, clause or phrase in this Ordinance, or any part thereof, is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining section or portions of this Ordinance or any part thereof. The Council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause, or phrase of this Ordinance, irrespective of any one or more sections, subsections, subdivisions, paragraphs, sentence, clauses or phrases may be declared invalid or unconstitutional.
SECTION 4. The City Clerk is directed to certify the passage and adoption of this Ordinance; cause it to be entered into the City of Banning’s book of original ordinances; make a note of the passage and adoption in the records of this meeting; and, within fifteen (15) days after the passage and adoption of this Ordinance, cause it to be published or posted in accordance with California law.
SECTION 5. This Ordinance will become effective on the thirty-first (31st) day following its passage and adoption.
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Ordinance 1605
PASSED, APPROVED AND ADOPTED this 9th day of July 2024.
Alberto Sanchez, Mayor
City of Banning
ATTEST:
Caroline Patton, Administrative City Clerk
City of Banning
APPROVED AS TO FORM:
Serita Young, City Attorney
Richards, Watson & Gershon
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Ordinance 1605
CERTIFICATION:
I, Caroline Patton, Administrative City Clerk of the City of Banning, California, do hereby certify that Ordinance 1605 was duly introduced at a regular meeting of the City Council of the City of Banning, held on the 25th day of June 2024, and was duly adopted at a regular meeting of said City Council on the 9th day of July 2024, by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
Caroline Patton, Administrative City Clerk
City of Banning, California
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CITY OF BANNING
STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Kevin Sin, Senior Civil Engineer
Art Vela, Director of Public Works
MEETING DATE: July 9, 2024
SUBJECT: Accept as Complete Various Improvements Related to the Atwell Specific Plan Development and Authorize the 90% Bond Exoneration RECOMMENDATION:
City Council accept as complete various improvements related to the Atwell Specific Plan Development and authorize the 90% bond exoneration.
BACKGROUND:
On September 8, 2020, City Council adopted Resolution 2020-114 approving Final Tract Map Nos. 37390, 37390-1, 37390-2 and 37390-F (Phase 1B - PA 6, PA 7 and PA 8), releasing the maps for recordation; authorizing staff to sign the subdivision improvement agreements and final tract maps; and accepting various Performance and Labor and Material Bonds for public improvements.
As conditions of approval for the Atwell Specific Plan development, Tri Pointe Homes was required to sign subdivision improvement agreements and to submit bonds to assure the City that the required public improvements are constructed according to City standards and specifications.
These public improvements included street, water and sewer for Tract 37390-1 (PA 6) and the Meadowline Water Interconnect Facility (mechanical and civil) for Tract 37298-1 of the Atwell Specific Plan Development.
JUSTIFICATION:
Staff has verified through inspections that the required public improvements were completed per City standards and specifications and recommends that City Council accept the improvements as complete and authorize the 90% bond exoneration for the following bonds:
Bond # Bond Amount Improvements
CMS0339958 $551,310.00 Tract 37390-1 (PA 6) Sewer
CMS0339959 $1,196,959.68 Tract 37390-1 (PA 6) Street
CMS0339960 $592,940.00 Tract 37390-1 (PA 6) Water
The remaining 10% of the bond amounts will remain for a period of 12 months (maintenance period) at which point the 10% balance will be released and the improvements will become City owned and maintained improvements.
FISCAL IMPACT:
Not applicable
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ALTERNATIVES:
Do not accept staff’s recommendation and provide staff with additional direction.
ATTACHMENTS:
1. Atwell - TR 37390-1 (PA 6) SIA and Bonds.pdf
2. TR 37390-1 SEWER PLAN.pdf
3. TR 37390-1 STREET ON-SITE PLAN.pdf
4. TR 37390-1 WATER ON-SITE PLAN.pdf
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11303-0014\2299407v5.doc 1
CITY OF BANNING
SUBDIVISION IMPROVEMENT AGREEMENT
* * * * * * SUBDIVISION REFERENCE DATA * * * * * *
[ ] FINAL TRACT MAP NO. 37390-1 (“Final Map” herein)
[ ] PARCEL MAP NO. (“Parcel Map” herein)
NAME OR TRACT NUMBER OF
SUBDIVISION (“Subdivision”
herein):
ATWELL - 37390-1
NAME AND ADDRESS OF
SUBDIVIDER(S):
PARDEE HOMES
1250 CORONA POINTE CT, #600
CORONA, CA 92881
CITY COUNCIL RESOLUTION
OF APPROVAL NO.
(“Resolution of Approval” herein)
DATE(S) THAT IMPROVEMENT PLANS WERE APPROVED BY THE CITY ENGINEER:
IMPROVEMENT/PLAN NO.:
Sewer Improvement Plans -Approved 3/12/2020
Street Improvement Plans -Approved 5/12/2020
Water Improvement Plans -Approved 5/04/2020
Monumentation Plans -Approved 8/19/2020
ESTIMATED TOTAL COSTS: IMPROVEMENTS $ 2,341,209.68
GRADING $
MONUMENTATION $ 29,957.50
TOTAL: $ 2,371,167.18
FORM OF IMPROVEMENT
SECURITY:
[ ] AAA Corporate surety bonds
NAME AND ADDRESS OF
CORPORATE SURETY (if
applicable):
[ ] Deposit of money
RLI Insurance Company
(Name of Corporate Entity)
6303 Owensmouth Ave, 10th Floor
(Street Address)
Woodland Hills, CA 91367
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SURETY BOND NUMBERS (if
applicable): - PA 6 Monumentation Bond #CMS0339957
- PA 6 Sewer Improvements Bond#CMS0339958
- PA 6 Street Improvements Bond#CMS0339959
- PA 6 Water Improvements Bond#CMS0339960
EFFECTIVE DATE OF
AGREEMENT: (to be inserted by City)
COMPLETION PERIOD: All improvements of Tract _____ (including the complete water and sewer system in ______ Street) with the exception of the roadway (street) improvements on ______ Street, shall be completed within two years from the Effective Date of the Agreement. _______ Street roadway (street) construction (so that ______ Street is a continuous route from __________ to _______________) shall be constructed prior to the Certificate of Occupancy for development of lots ____and ____ of Tract _____.
* * * * * * * * * * * * * * * * * * * * * *
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TABLE OF CONTENTS
Page
-i- 11303-0014\2299407v5.doc
1. SUBDIVIDER’S OBLIGATION TO CONSTRUCT IMPROVEMENTS .........2
2. INSPECTION OF WORK AND FINAL ACCEPTANCE ..................................4
3. GUARANTEE AND WARRANTY OF THE IMPROVEMENTS.....................5
4. TIME EXTENSIONS ...........................................................................................5
5. IMPROVEMENT SECURITY.............................................................................6
6. REDUCTION OR RELEASE OF IMPROVEMENT SECURITY .....................7
7. INDEMNIFICATION OF CITY BY SUBDIVIDER ..........................................9
8. INSURANCE......................................................................................................11
9. OWNERSHIP OF THE IMPROVEMENTS......................................................16
10. PREPARATION AND RECORDATION OF CC&RS .....................................17
11. DEFAULT AND BREACH BY THE SUBDIVIDER AND REMEDIES
OF THE CITY ....................................................................................................17
12. RELATIONSHIP OF THE PARTIES................................................................19
13. ASSIGNMENT...................................................................................................19
14. NOTICES............................................................................................................20
15. ENTIRE AGREEMENT.....................................................................................20
16. SEVERABILITY................................................................................................20
17. INCORPORATION OF SUBDIVISION REFERENCE DATA
AND RECITALS................................................................................................20
18. GOVERNING LAW...........................................................................................20
19. EFFECTIVE DATE OF THE AGREEMENT ...................................................21 1354
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SUBDIVISION IMPROVEMENT AGREEMENT
THIS SUBDIVISION IMPROVEMENT AGREEMENT (“Agreement”) is made and entered into by and between the City of Banning, a municipal corporation (“City”), and the Subdivider whose name and address is set forth above in the Subdivision Reference Data.
RECITALS
A. Subdivider has presented to the City for approval and recordation a Final Map, identified above in the Subdivision Reference Data, of a proposed subdivision pursuant to the Subdivision Map Act of the State of California and the City’s ordinances and regulations as such ordinances and regulations are vested under the development agreement recorded in the official records of the County of Riverside on July 17, 2012 as Document No. 2012-0332888 (“Development Agreement”) relating to the filing, approval and recordation of subdivision maps (collectively referred to herein as the “Subdivision Laws”).
B. A tentative map of the Subdivision was previously approved by City, subject to the Subdivision Laws and to the City’s standard requirements as vested under the Development Agreement and conditions of approval contained in the City Council’s Resolution of Approval, a copy of which is on file in the Office of the City Clerk and which is incorporated herein by this reference.
C. The Subdivision Laws establish, as a condition precedent to the approval of a Final Map, that the Subdivider comply with the City Council’s Resolution of Approval and either (i) complete, in compliance with applicable City standards, all of the improvements and land development work required by the Subdivision Laws and the City Council’s Resolution of Approval; or (ii) enter into a secured agreement with the City to complete the improvements and land development work within a period of time specified by the City.
D. In consideration of approval of the Final Map for the Subdivision by the City Council, Subdivider desires to enter into this Agreement whereby Subdivider promises to install and complete, at its sole expense, except as otherwise provided in a credit/reimbursement agreement as provided for in the Development Agreement, all public improvement work required by the City as set forth on the Improvement Plans (as defined below) for the proposed Subdivision. Subdivider has secured this Agreement by improvement security required by the Subdivision Laws and approved by the City. In any conflict between the terms in this Agreement and the Development Agreement, the Development Agreement shall be the controlling document.
E. Improvement Plans, and related specifications, numbered as designated above in the Subdivision Reference Data, for the construction, installation and completion of the Improvements identified in Schedule A hereto, have been prepared by the Subdivider, approved by the City Engineer, and are on file in the office of the City Engineer. Said Improvement Plans, and related specifications, subsequently modified by 1355
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the mutual written agreement of the parties, are hereby referred to as the “Improvement Plans” and are incorporated herein by this reference. Any improvement to be constructed pursuant to the Improvement Plan is hereby referred to individually as an “Improvement” and collectively as the “Improvements”.
NOW, THEREFORE, in consideration of the approval and recordation by the City Council of the Final Map of the Subdivision, Subdivider and City agree as follows:
1. SUBDIVIDER’S OBLIGATION TO CONSTRUCT IMPROVEMENTS
A. Subdivider shall, at its sole expense, unless otherwise provided in a credit/reimbursement agreement as provided for in the Development Agreement, and in compliance with the provisions of the Subdivision Laws, the Improvement Plans, conditions of approval of the Tentative Map, and all applicable City standards and fees, and in a good and workmanlike fashion, furnish, construct, install and guarantee (as set forth in Section 3) the Improvements, Grading, and Monumentation described on the tentative map and in the City Council’s Resolution of Approval relating thereto (collectively, the “Improvements”).
B. To the extent necessary to construct the Improvements, as determined by the City Engineer, the Subdivider shall acquire and dedicate, or pay the reasonable, documented cost of acquisition by City of, all rights-of-way, easements and other interests in real property for the construction or installation of the Improvements, free and clear of all liens and encumbrances. If the Subdivider is unable to acquire such rights-of-way, easements and other interests in real property by negotiation, then Subdivider shall, within 120 days of Final Map approval, enter into a condemnation agreement with City pursuant to Government Code Section 66462.5, by which the City will commence the process for the acquisition of the rights-of-way, easements or other real property.
C. Subject to any time extensions granted in accordance with Section 4, Subdivider shall complete all Improvements within its respective “Completion Period” specified in the Subdivision Reference Data; provided, however, that if the City Engineer reasonably determines in good faith that accelerated construction of the Improvements is essential in order to protect the public health, welfare and safety, the City Engineer shall give Subdivider not less than fifteen (15) business days' prior written notice to commence or accelerate installation and construction of such Improvements, or any portion thereof. The notice shall be in writing, and shall describe the work to be done by Subdivider, the time within which the work will commence, the period within which the work will be completed and identify the reasons that such early commencement is essential in order to protect the public health, welfare and safety. All or any portions of said Improvements may be required to be constructed or completed at a specified time, providing the foregoing criteria is met. If the Subdivider objects to the commencement or acceleration of the Improvements as specified by the City Engineer, Subdivider may appeal the decision of the City Engineer to the City Council. Any such appeal shall be filed with the City Clerk within 10 days after receipt by Subdivider of the written notice from the City Engineer.
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D. If the Improvements to be constructed by Subdivider include monumentation, such monumentation shall be installed not later than thirty (30) days after the City’s acceptance of all other Improvements pursuant to Section 2. As used herein, “monumentation” shall mean the setting of survey monuments and tie points in accordance with the Subdivision Laws, and the delivery to the City Engineer of tie notes for said points.
E. Subdivider shall , at its sole expense, unless otherwise provided in a credit/reimbursement agreement as provided for in the Development Agreement, replace or repair all public improvements, public utility facilities, and surveying or subdivision monuments which are destroyed or damaged as a result of any work performed by Subdivider under this Agreement during or after the Completion Period.
Any such replacement or repair shall be subject to the approval of the City Engineer.
F. In addition to, and separate from, the indemnity obligations contained in Section 9 of this Agreement, and without limiting the City’s remedies under general construction defect law, Subdivider shall be responsible for the care, repair and maintenance of the applicable portion of the Improvements until the latter of the following time periods: (i) the Improvements or applicable portion thereof is accepted in writing by the City; or (ii) the expiration of the required one-year guarantee and warranty period as specified herein; or (iii) the expiration of any applicable period of time requiring the care, repair and maintenance of the applicable Improvement specified in the Development Agreement (not including the term of any Development Agreement).
Neither City, nor its officers, agents and employees, shall have any liability for any accident, loss or damage to the Improvements and that may result from the construction of the Improvements prior to their completion and written acceptance by the City G. In addition to, and separate from: (1) the indemnity obligations contained in Section 7 of this Agreement, (2) the care, repair and maintenance provisions under paragraph E of this Section 1 of this Agreement; and (3) the warranty and guarantee provisions of Section 3 of this Agreement, Subdivider shall repair and correct, or be liable to the City for any cost to repair and correct, any defect in the construction of the Improvements that is identified by City within in accordance with general construction defect law ten (10) years after City’s acceptance of the Improvement, provided the City provides written notice to Subdivider of the existence of the defect within that the time period under law, and the defect is caused directly or indirectly by the design, construction, functionality, installation, assembly or workmanship of Subdivider. Nothing contained in this paragraph is intended to limit or otherwise waive any right or cause of action under applicable construction defect law that City may assert against Subdivider.
H. Subdivider shall, at its sole expense, unless otherwise provided in a credit/reimbursement agreement as provided for in the Development Agreement, obtain all necessary permits and licenses for the construction and installation of the Improvements, give all necessary notices, and pay all applicable fees required by City ordinance or resolution and all taxes required by law.
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I. Not less than seven (7) days prior to commencement of work on the Improvements, Subdivider shall give written notice to the City Engineer of the date fixed for such commencement of work in order that the City Engineer shall have adequate time to schedule all necessary inspections.
J. SUBDIVIDER shall pay all applicable City fees and costs stipulated in the latest fee resolution as adopted by the City Council from time to time as required for the development of the SUBDIVISION including but not limited to the following:
1. Building Permit Fees --- to be paid at the time of building permit issuance;
2. Final Map Plan Check Fees --- to be paid at time of
submittal of final map for plan check and resubmittal of revised final map for plan check;
3. Final Map Moratorium Fees --- to be paid from cash
deposit established at time of filing final map;
4. Plan Check and Review Fees --- to be paid from cash
deposit established at time of filing improvement plans for plan check;
5. Encroachment Permit Fees --- to be paid at time of
application for encroachment permit;
6. Inspection Fees --- to be paid from cash deposit established at time of construction permit issuance; and
7. Grading Permit Fee --- to be paid from cash deposit
established at time of grading permit issuance.
K. Subdivider shall provide City with final Record Drawings of all plans developed for the Subdivision, showing all changes and as built conditions as specified in the Tentative Tract Map Conditions of Approval, and shall provide electronic image files of those final Record Drawings consistent with electronic image file size and type specifications of the City prior to the acceptance of improvements and release of bonds or other security.
2. INSPECTION OF WORK AND FINAL ACCEPTANCE
A. Subdivider shall at all times maintain proper facilities and safe access for inspection of the Improvements by the City Engineer and other City personnel and inspection consultants.
B. Upon completion of the work on all or any category of the Improvements, the Subdivider may request a final inspection by the City Engineer.
Within forty-five (45) days of receipt of the written letter request, the City Engineer shall 1358
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inspect the Improvements and provide written notice to Subdivider of the list of items which have been found to be incomplete and the list of items which have been found to be complete. If the City Engineer determines that all or any specified category of the Improvements have been completed in accordance with this Agreement and in compliance with the Improvement Plans and all applicable City standards, then the City Engineer shall acknowledge that determination in a report to the City Council. If the Improvements that are completed are to be dedicated to or owned by the City (Improvements within City right of way and property for public use), the City Engineer’s determination shall be submitted to the City Council for final acceptance by the City, unless such power to accept has been delegated by the City Council to the City Engineer or some other officer of the City, in which case the final acceptance shall be subject to the approval of that specified official. If the Improvements that are completed are to be dedicated to or owned by a public entity other than the City, the Subdivider’s written request shall be submitted to the applicable public entity or other owner, for final acceptance. Subdivider shall bear all costs of inspection and determination of completeness in accordance with City’s formally adopted and applicable fees and rates.
C. Acceptance of all or any specified category of the Improvements by the City Council shall be made upon recommendation and certification of the City Engineer following inspection of said Improvements pursuant to subparagraph B above.
The City Council shall act upon the City Engineer’s recommendation that such public Improvements have been completed unless such power to accept has been delegated by the City Council to the City Engineer or some other officer of the City, in which case the final acceptance shall be subject to the approval of that specified official. Acceptance by the City or by the governing body of the entity that is to accept dedication or ownership of the public improvements shall not constitute a waiver by the City or such other public entity of any defects in the public Improvements.
3. GUARANTEE AND WARRANTY OF THE IMPROVEMENTS
A. If, within a period of one year following acceptance by the City of the applicable Improvements specified in Schedule A, any Improvements or part of any Improvements specified in Section A furnished, installed or constructed by the Subdivider, or any of the work performed under this Agreement by Subdivider, fails to comply with any requirements of this Agreement, or the Subdivision Laws, or the Improvement Plans and related specifications, the Subdivider shall, without delay and without cost to the City, repair, replace or reconstruct any defective or otherwise unsatisfactory part or parts of the Improvements. Subdivider’s obligations hereunder shall include the repair, replacement or reconstruction of all irrigation systems and all trees, shrubs, ground cover and landscaping for such one year.
B. Should the Subdivider fail or refuse to act promptly or in accordance with subparagraph A above, or should the exigencies of the situation require repair, replacement, or reconstruction to be undertaken before the Subdivider can be notified and can perform the necessary work, then the City may, in its discretion, make the necessary repairs or replacements or perform the necessary reconstruction and draw upon the Subdivider’s improvement security to reimburse itself for the costs incurred. If 1359
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the Subdivider’s improvement security does not cover the total cost of such repair, replacement, or reconstruction, the Subdivider shall reimburse the City for any excess costs incurred.
C. The security furnished for the faithful performance of the Subdivider’s obligation to construct and install the Improvements described herein shall include the Subdivider’s liability and obligation hereunder to provide the one-year guarantee and warranty of the Improvements.
4. TIME EXTENSIONS
A. Upon a showing by the Subdivider of good cause therefor, the duration of the Completion Period for the Improvements (or any of them) may be extended by the City Engineer in writing. As used herein, “good cause” may include, without limitation, delay resulting from, arising out of or relating to an act of the City; acts of God or force majeure, strikes, boycotts or similar job actions by employees or labor organizations which prevent the conduct of the work; findings made by a governmental entity that the site of a particular Improvement is of archeological significance or requires further permitting and approval; and/or actions or failure to act of native American monitor(s); and, the order of any court.
B. A time extension may be granted without notice to any surety or sureties of the Subdivider and shall not affect the validity of this Agreement nor release the surety or sureties on any bond given as an improvement security pursuant to this Agreement.
C. As a condition of any time extension provided for herein, the City Engineer, may require the Subdivider to furnish new or modified improvement security guaranteeing performance of this Agreement, as extended, in an increased amount as necessary to compensate for any projected increase in the Estimated Total Cost of Improvements, as determined by the City Engineer.
5. IMPROVEMENT SECURITY
A. Prior to City’s execution of this Agreement, Subdivider shall provide as security to the City:
1. For Performance and Guarantee: Security in an amount equal to one hundred percent (100%) of the Estimated Total Cost of the Improvements, excluding Grading, as set forth above in the Subdivision Reference Data. The security shall be issued by a bonding company licensed to issue bonds in the State of California and having a Best rating of AAA or better.
With this security, the form of which shall be subject to City Attorney’s prior approval, the Subdivider assures faithful performance under this Agreement and guarantees the Improvements for one year after the completion and acceptance of the applicable portion of such Improvements, against any defective workmanship or materials or any unsatisfactory performance, pursuant to Section 3 hereof. 1360
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2. For Payment: Security in an amount equal to one hundred percent (100%) of the Estimated Total Cost of the Improvements, excluding Grading, as set forth above in the Subdivision Reference Data. The security shall be issued by a bonding company licensed to issue bonds in the State of California and having a Best rating of AAA or better. With this security, the form of which shall be subject to City Attorney’s prior approval, the Subdivider guarantees payment to contractors, subcontractors, and persons renting equipment or furnishing labor or materials to them or to the Subdivider.
B. If the improvement security is a corporate surety bond and, in the opinion of the City, any surety or sureties thereon become insufficient, because (i) the surety becomes insolvent; (ii) the surety's bond rating is downgraded; (iii) the surety declares bankruptcy; or (iv) the surety is no longer deemed to be an admitted surety in California by the California Department of Insurance, or (v) the form of the surety or the amount is found by City to be in error or materially insufficient, the Subdivider shall renew or replace any such surety bond with good and sufficient surety or sureties within thirty (30) days after receiving from City written demand therefor.
C. The amount of security for performance, payment and warranty obligations provided by this section shall not include the cost of monumentation, as required by Government Code Section 66497 so long as a separate cash deposit or security acceptable to the City Engineer for the estimated cost of monumentation has been submitted to the City.
D. Improvement security consisting of corporate surety bonds, in a form accepted by the City Attorney, shall be filed with the City Engineer and then kept on file with the City Clerk. If a corporate surety bond is replaced by another approved bond, the replacement shall be submitted to the City Engineer and, upon filing with the City Clerk, shall be deemed to have been made a part of and incorporated into this Agreement. Upon submission to the City Engineer and then filing with the City Clerk of a replacement bond, the former improvement security shall be released following written approval of the City Engineer.
E. Modifications of the Improvement Plans and related specifications, and modifications of the Improvements, not exceeding ten percent (10%) of the original Estimated Total Cost of the Improvements, shall not relieve or release any improvement security furnished by Subdivider pursuant to this Agreement. If any such modifications exceed ten percent (10%) of the Estimated Total Cost of the Improvements, Subdivider shall furnish additional improvement security for performance and guarantee, and for payment, as required by subparagraph A above, for one hundred percent (100%) of the revised Estimated Total Cost of the Improvements.
F. Subject to any time extensions granted in accordance with Section 4 herein, the Subdivider shall be in default if the Subdivider has not completed all improvements within two years from the Execution Date of the Agreement and has not repaired any defects in the completed Improvements within the one-year guarantee and warranty period.
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Alternatively, in the event of a default by the Subdivider pursuant to Section 10, and after written notice to Subdivider and reasonable opportunity to cure, City, at its sole option, shall have the right, without limiting any other rights and/or remedies available to City at law or in equity, to draw upon or utilize the improvement security furnished herewith to construct and install the Improvements itself. If City exercises this right, the release of any unused portion of such improvement security shall be in accordance with the procedures outlined in Section 6 herein, including any retention necessary for the one-year guarantee period.
6. REDUCTION OR RELEASE OF IMPROVEMENT SECURITY
A. All public Improvements (Improvements that are to be owned or dedicated to the City or other public entity as distinguished from those owned by a private community association) shall be first completed, deemed completed by the City Engineer and then accepted as complete by the City prior to release of sureties. All private Improvements (Improvements that are to be owned by a private community association and not dedicated or owned by the City or other public entity) shall be first completed and then accepted as complete in writing by the City Engineer.
B. Partial releases or reductions in the Subdivider’s improvement (performance) security may be authorized prior to the City’s acceptance of all Improvements required hereunder, as follows:
1. At the time that the Subdivider believes that the obligation to perform the work for which security was required is complete, the Subdivider may notify the City in writing of the completed work, including a list of work completed. Upon receipt of the written notice, the City shall review and comment or approve the completion of the required work within forty-five (45) days. If the City does not agree that all work has been completed in accordance with the plans and specifications for the Improvements, it shall supply a list of all remaining work to be completed within this 45-day period.
2. Within forty-five (45) days of receipt of the list of remaining work from the local agency, the Subdivider may then provide cost estimates for all remaining work for review and approval by the City. Upon receipt of the cost estimates, the City shall then have forty-five (45) days to review, comment, and approve, modify, or disapprove those cost estimates. The City shall not be required to engage in this process of partial release more than once between the start of work and completion and acceptance of all work; however, nothing in this section prohibits the City from allowing for multiple and phased partial releases as it otherwise deems appropriate.
3. If the City approves the cost estimate, the City shall release all performance security except for security in an amount up to two hundred percent (200%) of the cost estimate of the remaining work. The process allowing for a partial release of performance security shall occur when the cost estimate of the remaining work does not exceed twenty percent (20%) of the total original 1362
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performance security unless the City allows for a release at an earlier time.
Substitute bonds or other security may be used as a replacement for the performance security, subject to the approval of the City. If substitute bonds or other security is used as a replacement for the performance security released, the release shall not be effective unless and until the City receives and approves that form of replacement security. A reduction in the performance security, authorized under this section, is not, and shall not be deemed to be, an acceptance by the City of the completed improvements in and of itself, and the risk of loss or damage to the Improvements and the obligation to maintain the Improvements shall remain the sole responsibility of the Subdivider until the applicable required public Improvements have been accepted by the City in writing and all other required improvements have been fully completed in accordance with the plans and specifications for the improvements.
4. The Subdivider shall complete the works of Improvement until all remaining items are accepted by the City.
5. Upon the completion of the Improvements, the Subdivider, or his or her assigns, shall be notified in writing by the City within forty-five (45) days.
6. Within sixty (60) days of the issuance of the notification by the City Engineer, any remaining performance security, except ten percent (10%) of the original amount of the security to guarantee and warrant the Improvements for the one-year guarantee and warranty period, shall be released within sixty (60) days of the issuance of the written statement of completion.
C. Security securing the payment to the contractor, his or her subcontractors and to persons furnishing labor, materials or equipment shall, after passage of the time within which claims of lien are required to be recorded pursuant to Title 3 (commencing with Section 9000) of Part 6 of Division 4 of the Civil Code and after acceptance of the work, be reduced to an amount equal to the total claimed by all stop notice claimants for whom stop notices have been filed with the City, and if no claims have been filed, the security shall be released in full.
D. The partial release provisions of this Section 6 shall not apply to any required guarantee and warranty period required by Section 66499.9 for the guarantee or warranty nor to the amount of the security deemed necessary by the local agency for the guarantee and warranty period nor to costs and reasonable expenses and fees, including reasonable attorneys' fees. Security furnished to guarantee and warrant the Improvements against any defective work or labor done or defective materials furnished, shall be released within thirty (30) days after the completion of the one-year period following completion and acceptance of all Improvements.
E. If Subdivider’s obligations relating to any Improvements are subject to the approval of another governmental agency, the City shall not release the improvement (performance) security therefor until the obligations are performed to the 1363
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satisfaction of such other governmental agency. Such agency shall have sixty (60) days after receipt of written notice from the Subdivider of the Subdivider’s performance of the obligation to register its satisfaction or dissatisfaction. If at the end of that period it has not registered its satisfaction or dissatisfaction, it shall be conclusively deemed that the Subdivider’s performance of the obligation was done to its satisfaction, and such improvement security shall be promptly released.
F. In the event the time periods for action by the City specified in this Section conflict with a shorter or longer time period for such actions as provided in Government Code Section 66499.7, the time periods in Government Code Section 66499.7 shall control.
7. INDEMNIFICATION OF CITY BY SUBDIVIDER
A. Neither the City, nor its officers, agents and employees, shall be liable or responsible for any accident, injury, loss or damage to either property or person attributable to or arising out of the defective design, construction, functionality, installation assembly or improper maintenance including, without limitation, the use of defective methods, materials or workmanship (collectively “Subdivider’s Faults”) of the Improvements by Subdivider, its officers, employees and agents. Subdivider shall indemnify, hold harmless and defend the City, its officers, agents and employees, from and against any and all losses, claims, costs, expenses, liabilities, damages, actions, causes of action and judgments, including attorneys’ fees, arising directly or indirectly out of or attributable to Subdivider’s Faults.
B. Subdivider’s obligations under this Section 7 are not conditioned or dependent upon whether the City, or its officers, agents and employees, prepared, supplied or reviewed any Improvement Plans or related specifications in connection with the Subdivision or the Improvements, or has insurance or other indemnification covering any of these matters.
C. Subdivider’s obligation to indemnify, hold harmless and defend the City under this Section 7 shall extend to injuries to persons and damages to or alleged taking of property resulting from the Subdivider’s Faults, and the Improvements required herein, and shall likewise extend to claims asserted by adjacent property owners based upon the diversion of waters caused by the Subdivider’s defective design or defective construction of public drainage systems, streets, and other public facilities or improvements. Except for a City Directive as defined below, the City’s acceptance of the Improvements shall not constitute an assumption by the City of any responsibility or liability for any damage or alleged taking of property referenced herein. City shall not be responsible or liable for the design or construction of the Subdivision or the Improvements constructed or installed pursuant to the approved Improvement Plans or the Final Map, regardless of any act or omission by the City in approving the Improvement Plans or the Final Map, unless the particular Improvement design was required by the City over the written objection of the Subdivider, which objection stated that the Improvement design was potentially dangerous or defective and set forth an alternative design (a “City Directive”). After City’s acceptance of the Improvements, the 1364
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Subdivider shall remain obligated to correct or eliminate all dangerous conditions created by defects in design, construction or Subdivider’s Faults (other than those required by a City Directive); provided, however, that Subdivider shall not be responsible for routine maintenance as specified in Section 1(F) of this Agreement. Subdivider’s indemnity obligations hereunder shall remain in effect for ten (10) years following acceptance of the respective Improvement(s) by the City Council. Subdivider acknowledges and agrees that Subdivider shall be responsible and liable for the Subdivider’s Faults with respect to the Improvements and other work done pursuant to this Agreement, unless same is due to a City Directive. City shall not be liable for any acts or omissions in approving, reviewing, checking, correcting or modifying any Improvement Plans or related specifications, or in inspecting, reviewing or approving any work or construction of Improvements, unless same is due to a City Directive. The Subdivider’s improvement security shall not be required to secure the Subdivider’s obligations under this subparagraph C beyond the one-year guarantee and warranty period, unless the City Engineer provides notice to Subdivider prior to the expiration of the one-year period of the existence of, or continued existence of, defects in the improvements, in which case the portion of the improvement security to guarantee and warranty the improvements against defective work shall not be released and shall remain in place until the City Engineer provides written confirmation that the defects have been cured and corrected.
The indemnity shall be effective retroactively to the earliest recordation date of the Final Map.
D. Subdivider shall pay and satisfy any judgment, award or decree that may be rendered against City, its officers, officials, employees, agents, representatives and volunteers (collectively hereinafter “City and City Personnel”) to the extent of the indemnity provided above, in any such suit, action, or other legal proceeding, provided City gives Subdivider prompt written notice of such claim and allows Subdivider to undertake the defense thereof, and provided further that City cooperates in any such suit, action, or other legal proceeding, but shall retain its right to reject a settlement that the City deems, in its sole and absolute discretion, to be contrary to the interests of the City.
E. Subdivider’s obligation to indemnify shall not be restricted to Insurance proceeds, if any, received by the City and City Personnel.
F. Subdivider, on behalf of itself and all parties claiming under or through it, hereby waives all rights of subrogation and contribution against City and City Personnel to the extent of the indemnity above provided.
8. INSURANCE
The following coverages will be provided by Subdivider and maintained on behalf of City and in accordance with the requirements set forth herein. If Subdivider performs construction activities through a general contractor, some or all of these insurance requirements for the period of construction may be satisfied by the general contractor’s insurance coverages. In such case, Subdivider shall maintain during this same construction period, and after the construction period, the coverages shown below 1365
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as “Insurance After Construction.” In addition, Subdivider may elect to obtain, for all or any portion of the Project, an “Owner-Controlled Wrap Up” insurance policy in satisfaction of the insurance requirements for general contractors and subcontractors provided it satisfies all of the insurance requirements below for general contractors and subcontractors. Throughout these specifications, the word “Subdivider” refers to the Party responsible to provide the coverages as specified and, depending on context, may refer either to Subdivider or to a separate General Contractor.
A. Insurance During Construction. Subdivider shall provide the following insurance during construction of the Improvements. Insurance requirements may be met through insurance provided by Subdivider’s General Contractor:
1. Commercial General Liability Insurance. Commercial
General Liability Insurance (primary) shall be provided on ISO-CGL Form No.
CG 00 01 or equivalent coverage, including provisions for defense of additional insureds. Policy limits shall be no less than two million dollars ($2,000,000) per occurrence for all coverages and five million dollars ($5,000,000) general aggregate. City and its officers, employees and agents shall be added as additional insureds using ISO Form CG 20 10 11 85 or other revision of the CG 20 10 form if available from the insurer and reasonably acceptable to the City, not limiting coverage for the additional insured to “ongoing operations” or in any way excluding coverage for completed operations. Coverage shall apply on a primary non-contributing basis in relation to any other insurance or self-insurance, primary or excess, available to City or any officer, employee or agent of City.
Coverage shall not be limited to the vicarious liability or supervisory role of any additional insured. Coverage shall contain no contractors’ limitation or other endorsement limiting the scope of coverage for liability arising from pollution, explosion, collapse, or underground property damage.
2. Umbrella Liability Insurance. Umbrella Liability Insurance (or, at Subdivider’s election, Excess Liability Insurance) (over primary) shall apply to bodily injury/property damage, personal injury/advertising injury, at a minimum. Coverage shall be at least as broad as any underlying coverage.
Coverage shall be provided on a “pay on behalf” basis. There shall be no cross liability exclusion and no contractor’s limitation endorsement. Policy limits shall be not less than five million dollars ($5,000,000) per occurrence and in the aggregate, including any limits required in the underlying policies. The policy shall have a starting date no later than and an ending date no earlier than those of the underlying coverages. The Named Insured (Subdivider or General Contractor as appropriate) may determine the layering of primary and excess liability insurance provided that if such layering differs from that described here, the actual coverage program meets the minimum total required limits and complies with all other requirements listed here.
3. Business Auto Coverage. Business Auto Coverage shall be written on ISO Business Auto Coverage Form CA 00 01 or the equivalent, including symbol (1) (any Auto). If Subdivider (or Contractor) does not own any 1366
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vehicles, this requirement may be satisfied by a non-owned vehicle endorsement to the general and umbrella liability policies. Limits shall be no less than one million dollars ($1,000,000) per accident. This policy shall be scheduled as underlying insurance to the umbrella policy required above for a total limit of no less than five million dollars ($5,000,000) each accident.
4. Workers’ Compensation/Employer’s Liability. Workers’ Compensation/Employer’s Liability shall provide workers’ compensation statutory benefits as required by law. Employer’s liability limits shall be no less than one million dollars ($1,000,000) per accident or disease. Employer’s liability coverage shall be scheduled under the umbrella or excess liability policy described above. This policy shall be endorsed to waive any right of subrogation with respect to City, its officers, employees or agents.
5. Builder’s Risk Insurance. Builder’s Risk Insurance
covering all real and personal property for “all risks” of loss or “comprehensive perils” coverage including but not limited to the perils of earth movement, including earthquake (if required by Subdivider’s lender or if available at commercially reasonable rates) and flood for all Improvements.
B. Insurance After Construction. Upon completion of construction of the Improvements, and for the required one-year guarantee and warranty period for Improvements and the required 10-year indemnification period, Subdivider at Subdivider’s expense shall maintain or cause to be maintained the following insurance:
1. Commercial Property Insurance. Commercial Property
Insurance covering the Improvements. Coverage shall be at least as broad as the Insurance Services Offices broad causes of loss form CP 10 20, and reasonably approved of in writing by the City. Coverage shall be sufficient to insure 100% of the replacement value and there shall be no coinsurance provisions. The policy shall include an inflation guard endorsement, 100% rents coverage, contents coverage, coverage for personal property of others, ordinance or law and increased cost of construction coverage. Subdivider also agrees to provide builder’s all-risk insurance using an inland marine form during the period of any major alteration or improvement, using the broadest form available.
The insurance coverage for the peril of earthquake required for this project is subject to availability on the open market at commercially reasonable premium cost, as determined by mutual agreement between Subdivider and City. If such earthquake insurance coverage should, after diligent effort by Subdivider, be unobtainable at such mutually determined commercially reasonable premium cost, then Subdivider shall obtain the maximum insurance reasonably obtainable at commercially reasonable premium cost (if any) and give notice to City of the extent of Subdivider’s inability to obtain, in full, the required insurance, and in such event, Subdivider’s obligation to procure and maintain such insurance may be excused, subject to City’s verification of inability to obtain the required insurance. Subdivider and City agree that a premium cost of 1367
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earthquake insurance coverage of up to 150% of the premium cost paid by Subdivider for such coverage on the Effective Date (to be adjusted over time based on the Consumer Price Index,) shall constitute a commercially reasonable premium cost. Non-availability at commercially reasonable premium cost must be documented by a letter from Subdivider’s insurance broker or agent indicating a good faith effort to place the required insurance and showing, at a minimum, the names of the insurance carriers and the declinations or quotations received from each.
2. Commercial General Liability Insurance. Commercial
General Liability Insurance (primary) shall be provided on ISO-CGL form No.
CG 00 01 or equivalent coverage, including provisions for defense of additional insureds. Policy limits shall be no less than two million dollars ($2,000,000) per occurrence for all coverages and five million dollars ($5,000,000) general aggregate. City and its officers, employees and agents shall be added as additional insureds using ISO form CG 20 10 or equivalent if available from the insurer and reasonably acceptable to the City. Coverage shall apply on a primary noncontributing basis in relation to any other insurance or self-insurance, primary or excess, available to City or any officer, employee or agent of City until the warranty period specified in this Agreement expires.
3. Umbrella Liability Insurance. Umbrella Liability Insurance (or, at Subdivider’s election, Excess Liability Insurance) (over primary) shall apply to bodily injury/property damage, personal injury/advertising injury, at a minimum. Coverage shall be at least as broad as any underlying coverage.
Coverage shall be provided on a “pay on behalf” basis. There shall be no cross liability exclusion. Policy limits shall be not less than five million dollars ($5,000,000) per occurrence and in the aggregate, including any limits required in the underlying policies. The policy shall have a starting date no later than and an ending date no earlier than those of the underlying coverages. Subdivider may determine the layering of primary and excess liability insurance provided that if such layering differs from that described here, the actual coverage program meets the minimum total required limits.
4. Workers Compensation Insurance. Workers’
Compensation/Employer’s Liability shall provide workers’ compensation statutory benefits as required by law. Employer’s liability limits shall be no less than one million dollars per accident or disease. Employer’s liability coverage shall be scheduled under any umbrella or excess liability policy described above.
Unless otherwise agreed, this policy shall be endorsed to waive any right of subrogation as respects City, its employees or agents.
5. Business Auto Coverage. Business Auto Coverage for
vehicles owned, operated or maintained in any way connected with the project, shall be written on ISO Business Auto Coverage form CA 00 01 or the equivalent, including symbol (1) (any Auto). If Subdivider (or Contractor) does not own any vehicles, this requirement may be satisfied by a non-owned vehicle endorsement 1368
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20 10 11 85. Certificate(s) are to reflect that the insurer will provide 30 days’ notice of any cancellation of coverage and policies are to have a “cancellation endorsement” to the same effect. Subdivider agrees to provide copies of any endorsements modifying coverage in any way upon request from City.
8. Subdivider shall provide proof that policies of insurance required herein expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage.
9. Any actual or alleged failure on the part of City or any other additional insured under these requirements to obtain proof of insurance required under this Agreement in no way waives any right or remedy of City or any additional insured, in this or any other regard.
10. Subdivider agrees to require all subcontractors or other parties (but not including a general contractor) hired for this project to construct the Improvements to purchase and maintain insurance for general liability (minimum limit $1,000,000 per occurrence), automobile liability ($1,000,000 per accident) and workers’ compensation (statutory benefits). Prior to the issuance of the Certificate of Completion for each Phase, Subdivider shall, upon request by City, provide the City with copies of all insurance policies, certificates and endorsements related to such Phase.
11. Subdivider agrees to monitor and review all coverage required by this Section and assumes all responsibility for ensuring that such coverage is provided as required here. Subdivider agrees to obtain certificates evidencing such coverage. Subdivider agrees that upon request, all agreements with subcontractors or others with whom Subdivider contracts with on behalf of City, and all certificates of insurance obtained in compliance with this paragraph will be submitted to City for review upon request by City. Failure of City to request copies of such documents will not impose any liability on City, or its employees.
12. Subdivider agrees to require that no contract used by any general contractor or subcontractor in connection with construction of the Improvements, or contracts Subdivider enters into on behalf of City, will reserve the right to charge back to City the cost of insurance required by this Agreement.
13. Where appropriate (such as in the case of automobile insurance coverages), coverage will not be limited to the specific location designated as the Property.
14. Subdivider agrees to provide notice to City of any claim or loss against Subdivider that includes City as a defendant promptly after Subdivider receives written notice or obtains knowledge thereof. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. 1369
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City agrees to provide similar notice to Subdivider of any such claims it is notified of respecting the Property.
15. Subdivider agrees not to attempt to avoid its defense and indemnity obligations to City, and its officers, employees, agents by using as a defense Subdivider’s statutory immunity under workers’ compensation and similar statutes.
16. Subdivider agrees to ensure that coverage provided to meet these requirements is applicable separately to each insured and that there will be no cross liability exclusions that preclude coverage for suits between Subdivider and City or between City and any other insured or Named Insured under the policy, or between City and any Party associated with City or its employees.
17. If Subdivider or any contractor or subcontractor is a Limited Liability Company, general liability coverage must apply so that the Limited Liability Company and its Managers, Members, Affiliates, and their employees are insureds.
18. Subdivider shall require General Contractor to maintain commercial general liability, and if necessary, commercial umbrella liability insurance with a limit of not less than $15,000,000 for each occurrence, until the warranty period specified in this Agreement expires.
19. Subdivider agrees to obtain and provide to City evidence of professional liability coverage for Architects, Engineers or other design professionals working on the Improvements. The limit of liability required is subject to City approval, but in no event to be less than $1,000,000 per claim and in the aggregate, and Subdivider shall use reasonable efforts to require and cause such professionals to maintain coverage with respect to each occurrence for at least three years following substantial completion of the work and, in the event Subdivider is unable to do so, Subdivider shall promptly inform the City of the scope of such efforts and the reasons that it was unable to do so. If Subdivider requests that the City approve a lower limit for any particular design professional Subdivider seeks to employ on the Improvements, City will evaluate each such request based on City’s perception of liability exposure associated with the work that would be performed by that design professional.
20. To the extent a particular coverage or policy form or specification is not reasonably available from Subdivider's insurer or would result in an additional premium that is extraordinary or unreasonably disproportionate to the premium for the policy as a whole, then Subdivider shall provide substantially similar coverage reasonably acceptable to City for which the cost is not extraordinary or unreasonably disproportionate.
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9. OWNERSHIP OF THE IMPROVEMENTS
A. Ownership of all or any category of the Improvements constructed and installed by the Subdivider pursuant to this Agreement and shown on the Map to be dedicated to the public shall vest, as applicable, in the City (or other specified governmental agency) upon acceptance of said Improvements by the City. The acceptance of the Improvements shall either be shown by a certificate on the Final Map or by subsequent resolution accepting the Improvements adopted by the City pursuant to Government Code Section 66477.2 and recorded with the County Recorder or by other writing.
B. The Subdivider shall at all times prior to the acceptance of the Improvements by the City, give good and adequate warning to the public of each and every dangerous and defective condition caused by the construction of the Improvements and shall take all steps reasonably necessary to protect the public from such dangerous or defective conditions. The Subdivider agrees and understands that until acceptance of the Improvements by the City in writing, each Improvement and Improvement area that is offered for dedication shall be under the charge of the Subdivider, and the Subdivider may close all or a portion of any street or area whenever necessary to protect the public during the construction of the Improvements.
10. PREPARATION AND RECORDATION OF CC&RS.
A. The Subdivider shall establish a Homeowners Association for the residential areas of the Final Map owned by Subdivider, and to pay all costs associated with the creation of the associations.
B. The Subdivider shall prepare and record Covenants, Conditions, and Restrictions (CC&Rs) which obligate each homeowners association to provide for maintenance of the shared facilities, improvements, and landscaping within the boundaries of the associations in perpetuity in accordance with the Development Agreement and conditions of approval. The CC&Rs shall describe the homeowners association and the City's responsibilities and rights, and shall be subject to the approval of the City prior to recordation.
C. The Subdivider shall implement applicable provisions of the Mitigation Monitoring and Reporting Program.
11. DEFAULT AND BREACH BY THE SUBDIVIDER AND REMEDIES
OF THE CITY
A. Upon the occurrence of any of the following events, the Subdivider shall be deemed to be in default under this Agreement:
1. Subject to any time extensions granted in accordance with Section 4, failure to complete construction and installation of the Improvements or any of them by the completion date set forth above in the Subdivision Reference Data;
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2. Failure to promptly correct or cure any defect in the Improvements or any of them (other than a City Directive) during the one-year guarantee and warranty period as required by Section 3.A or failure to commence correction or cure of any such defect or failure to diligently prosecute same to completion, in each instance following receipt by Subdivider of written notice that such defect exists;
3. Subject to any time extensions granted in accordance with Section 4, failure to perform substantial construction work of the Improvements or any of them, after commencement of work on same, for a period of thirty (30) days after Subdivider’s receipt of written notice thereof from the City;
4. Insolvency, appointment of a receiver, or the filing of any petition in bankruptcy, whether voluntary or involuntary, and such is not cured or discharged within a period of thirty (30) days;
5. Commencement of a foreclosure action against the
Subdivision or any portion thereof, or any conveyance by the Subdivider in lieu or in avoidance of foreclosure, within thirty (30) days after receipt by Subdivider of written notice thereof from the City; or
6. Failure to perform any other obligations in accordance with the terms and provisions of this Agreement within thirty (30) days after receipt by Subdivider of written notice thereof from the City.
B. City reserves to itself all remedies available to it at law or in equity for any breach of Subdivider’s obligations under this Agreement. City shall have the right, without limitation of other rights or remedies, after written notice to Subdivider and a reasonable opportunity for Subdivider to cure any such alleged default, to draw upon or utilize any improvement security furnished hereunder to complete the Improvements or otherwise mitigate City’s damages in the event of Subdivider’s default.
C. Following Subdivider’s receipt of written notice of alleged default and failure by Subdivider to promptly commence the cure of any alleged default and to diligently prosecute such cure to completion, the City may serve written notice of any such default upon the surety on any corporate surety bond furnished as improvement security hereunder, and request that said surety take over and complete the Improvements herein specified. If such surety, within thirty (30) days after service of such notice of default, does not give the City written notice of its intention to perform this Agreement, or does not commence such performance within thirty (30) days after notice to the City of such intention to perform, the City may take over the work and prosecute the same to completion, by contract or by any other method the City deems advisable, for the account and at the expense of the Subdivider and its surety.
D. Subdivider acknowledges that the Estimated Total Costs and Improvement Security amounts set forth herein may not reflect the actual cost of construction or installation of the Improvements, and, consequently, City’s damages for 1372
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Subdivider’s default shall be measured by the actual cost of completing the required Improvements. If the damages incurred by the City in taking over and completing the Improvements exceeds the principal amount of the improvement security, then the Subdivider shall reimburse the City in the amount of such excess damages.
E. Following Subdivider’s receipt of written notice of alleged default and failure by Subdivider to promptly commence the cure of any alleged default and to diligently prosecute such cure to completion, City may, without liability for so doing, take possession of, and utilize in completing the Improvements, such materials, appliances, plant and other property belonging to Subdivider as may be on the site of the work and necessary for the performance of the work. Subdivider hereby consents to such entry by the City and its representatives, including contractors, following written notice to Subdivider upon the real property in the Subdivision owned by Subdivider and necessary for City to enter or access under this Agreement, in the event the City elects to maintain or complete the work on the Improvements following Subdivider’s default.
F. Subdivider acknowledges and agrees that approval of the Final Map for the Subdivision conferred substantial rights upon the Subdivider, including the right to sell, lease or finance lots within the Subdivision, and that such approval constitutes the final act necessary to permit the division of land within the Subdivision.
As a result, City will be damaged to the extent of the cost of construction or installation of the Improvements upon Subdivider’s failure to perform its obligations under this Agreement, which failure is not promptly remedied by sureties or by Subdivider.
G. The City’s failure to take an enforcement action with respect to a default, or to declare a default or breach, shall not be construed as a waiver of that default or breach or any subsequent default or breach of the Subdivider.
H. If City sues to compel Subdivider’s performance of this Agreement, or to recover damages or costs incurred in completing or maintaining the work on the Improvements, and is the prevailing party, Subdivider agrees to pay all reasonable attorneys’ fees and other costs and expenses of litigation incurred by the City in connection therewith, even if Subdivider subsequently resumes and completes the work.
12. RELATIONSHIP OF THE PARTIES
Neither Subdivider, nor any of Subdivider’s contractors, employees or agents, are or shall be deemed to be, agents of the City in connection with the performance of Subdivider’s obligations under this Agreement.
13. ASSIGNMENT
A. Subdivider shall not assign this Agreement, or any portion thereof without the prior written consent of the City in accordance with the Development Agreement. Any attempted or purported assignment in violation of this subparagraph A shall be null and void and shall have no force or effect. 1373
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B. The sale or other disposition of the Subdivision shall not relieve Subdivider of its obligations hereunder. If Subdivider intends to sell the Subdivision, or any portion thereof (except for the sale of individual lots with homes to individual purchasers), to any other person or entity, the Subdivider may request an assignment or novation of this Agreement and a substitution of improvement security. Upon the City’s approval of the assignment or novation and substitution of improvement security, the Subdivider may request a release or reduction of the improvement security furnished pursuant to this Agreement.
14. NOTICES
All notices required or provided for in this Agreement shall be in writing and delivered in person or by mail, postage prepaid, and addressed as follows:
If to the City: Art Vela
Director of Public Works/City Engineer
City of Banning
99 E. Ramsey Drive
Banning, California 92220
If to the Subdivider: To the address set forth above in the Subdivision Reference Data, or to such other
address as may subsequently be designated
in written notice to the City.
Notice shall be effective on the date that it is delivered in person, or, if mailed, three (3) days after the date of deposit in the United States Mail.
15. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement of the parties with respect to its subject matter. All modifications, amendments, or waivers of any terms of this Agreement shall be in writing and signed by the duly authorized representatives of the parties. In the case of the City, the duly authorized representative, unless otherwise specified herein, shall be the City Engineer.
16. SEVERABILITY
The provisions of this Agreement are severable. If any portion of this Agreement is held invalid by a court of competent jurisdiction, the remainder of the Agreement shall remain in full force and effect.
17. INCORPORATION OF SUBDIVISION REFERENCE DATA AND
RECITALS
The Subdivision Reference Data and the Recitals are incorporated into this Agreement.
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18. GOVERNING LAW
This Agreement shall be governed by the laws of the State of California.
19. EFFECTIVE DATE OF THE AGREEMENT
This Agreement shall be and become effective as of the date that it is executed by a duly authorized officer or employee of the City, it being the intention of the parties that the Subdivider shall first execute this Agreement and thereafter submit it to the City. The City shall insert the effective date in the Subdivision Reference Data in all counterparts of this Agreement and shall transmit a fully executed counterpart to the Subdivider.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers, thereunto duly authorized, as of the dates set forth below their respective signatures.
[Note: All signatures must be
acknowledged by a notary public and
the acknowledgement must be attached.
If signed by a Corporation, the
signatures of two Corporate officers are
required, unless a resolution of the
Corporation’s Board of Directors is
provided indicating that the signature of
the one signatory is sufficient to bind
the Corporation.]
SUBDIVIDER
By:
Print Name: Michael Taylor
Title: Division President
Date:
CITY
CITY OF BANNING
_____________________________
MAYOR
ATTEST:
(SEAL)
CITY CLERK
Approved as to form:
CITY ATTORNEY
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[This page for acknowledgments.]
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CITY OF BANNING
STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Emery Papp, Senior Planner
MEETING DATE: July 9, 2024
SUBJECT: Butterfield Specific Plan Project (“Atwell”) Annual Development Agreement Review for 2024
RECOMMENDATION:
Receive and file the annual review of the Development Agreement for the Butterfield Specific Plan Project being developed by Tri Pointe Homes as the Atwell Master Planned Community, ensuring that the developer is proceeding in good faith and in accordance with Section 12.1 of the Development Agreement and Government Code Section 65865.1.
BACKGROUND:
Government Code Section 65865.1 requires that development agreements include provisions requiring periodic review at least every 12 months, at which time the applicant, or successor in interest thereto, must be required to demonstrate good faith compliance with the terms of the agreement. Section 65865.1 also states that if, as a result of such periodic review, the local agency finds and determines, on the basis of substantial evidence, that the applicant or successor in interest thereto has not complied in good faith with terms or conditions of the agreement, the local agency may terminate or modify the agreement.
The annual review requirements for the Butterfield Specific Plan Project are set forth in Section 12 of the Development Agreement for the Project. In accordance with Section 12 (pages 34-35) of the Development Agreement between the City of Banning (“City”) and Pardee Homes (“Developer”), which was entered into on March 27, 2012, with a subsequent revised effective date of February 9, 2015, the City is conducting an annual review following the commencement of construction, to review the Developer's performance under the Development Agreement on or about each anniversary of the effective date of the Agreement. Try Pointe Homes is a successor in interest to Pardee Homes under the Development Agreement. The Developer has delivered the necessary information, reasonably requested by the City, regarding the Developer’s performance under the Agreement. Staff has reviewed the information requested, performed a series of site inspections, conducted several meetings with the Developer, and determined that the Developer has, and continues to, demonstrate compliance with the Agreement. Based on the review, staff has also determined that the Developer is implementing the Development Agreement in good faith, and continues to comply with the provisions and regulations of the adopted Specific Plan, the certified Environmental Impact Report prepared for the Project, and the existing land use regulations applicable to the Project as set forth in the Banning Municipal Code and the Butterfield Specific Plan.
JUSTIFICATION:
A summary of the project activities, over the past year, is detailed in the Table 1 below:
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TABLE 1: Atwell Development Activities:
Section 1 - Definitions Conforming/No Update
Section 2 – Exhibits Conforming/No Update
Section 3 – Term Conforming/No Update
Section 4 – Development of the
Developer’s Property
(4.7) A Development Impact Fee Update
was completed in September 10, 2019.
Section 5 – Financing and the City’s
Obligations
Formation of the first, second and third
Financing Districts have been completed
with the bonds for all three series
successfully sold. It is anticipated that the
fourth Financing District being formed in
the second/third quarter of 2024. A
Development Impact Fee Agreement has
been approved.
Section 6 – Time for Construction and
Completion of Project
(6.1) The development is proceeding at
an acceptable pace given current market
conditions.
(6.2) Permits: All residential permits have
been pulled in Phase 1A, Phase 1B and
Phase 2A-1. In the new development
Phase 2B-1 approximately 51 permits
have been pulled. Closings: There have
been approximately 460 closings within in
Phase 1A, approximately 355 closings
within Phase 1B, and approximately 615
closings in Phase 2A-1. All of the homes
in the in current phases are in various
stages of construction. Sales continue to
be strong but there is always the threat of
rising interest rates, material costs and
material lead times slowing the pace of
sales.
(6.2.3.) Infrastructure related plans are
being developed, have been submitted or
approved for all of various development
phases.
(6.2.4.) Developer has undergone a good
faith effort to market the commercial retail
planning area. All surrounding
infrastructure is in place to accommodate
construction should a commercial
developer show interest in starting.
All other provisions, of Section 6, is
proceeding in good faith.
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Section 7 – Development Impact Fees
(7.2.2) Development Impact Fee Studies
are complete. Adjustments will be made
at the 10-year review.
(7.3.5.) Fee Impact Studies associated
with reclaimed water facilities are
complete.
(7.5.1 – 7.5.3.) A TUMF Credit Agreement
was executed by the City Council at the
May 14, 2019 Meeting and work has been
completed on Highland Springs Avenue
between 8th Street/Wilson Street and
Oak Valley Parkway/Meadowline Way.
Section 8 – Dedications and
Conveyances of Property Interests
(8.1.1.) Plans have been submitted and
are continuing to be submitted for review.
Plans are being submitted and actively
processed by the City for infrastructure
improvements.
Section 9 – Processing of Requests
and Applications: Other Government
Permits
(9.2) A Deposit Reimbursement
Agreement is executed between the
Developer and City.
(9.3) The City recently implemented a
new planning checking software that has
slowed the improvement plan turnaround
times.
Section 10 – Amendment and
Modification of Development
Agreement
Conforming/ Settlement Agreement
Passed updating Fee Waivers provisions.
Section 11 – Reservations of Authority Conforming/No Update Section 12 – Annual Review Conforming/No Update
Section 13 – Default, Remedies &
Termination
Conforming/No Update
Section 14 – Assignment Conforming/No Update
Section 15 – Releases and
Indemnities
Conforming/No Update
Section 16 – Effect of Agreement on
Title
Conforming/No Update
Section 17 – City Officers and
Employees: Non-Discrimination
Conforming/No Update
Section 18 – Mortgage Protection Conforming/No Update
Section 19 – Miscellaneous Conforming/No Update
Public Communication:
The Annual Review of the Development Agreement is a receive and file item and does not require a public hearing or public notice. At the time of this writing, no public comments have been received.
FISCAL IMPACT:
None. As required in Section 12 of the attached Development Agreement, the cost for the annual review is paid by the Developer.
ALTERNATIVES:
Receive and file the annual review of the Development Agreement for the Butterfield Specific Plan 1458
Project.
ATTACHMENTS:
1. ATT.1- Annual Review Matrix - 2024.pdf
2. Att 2. Specific Plan Land Use Plan.pdf
3. Att 3. Dev Agree.Pardee 7-17-12.pdf
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Development Agreement Section/Provisions Status
Section 1 - Definitions Conforming/No Update
Section 2 – Exhibits Conforming/No Update
Section 3 – Term Conforming/No Update
Section 4 – Development of the Developer’s
Property
(4.7) A Development Impact Fee Update was
completed in September 10, 2019.
Section 5 – Financing and the City’s Obligations Formation of the first, second and third Financing Districts have been completed with the bonds for
all three series successfully sold. It is anticipated
that the fourth Financing District being formed in
the second/third quarter of 2024. A Development
Impact Fee Agreement has been approved.
Section 6 – Time for Construction and Completion
of Project
(6.1) The development is proceeding at an
acceptable pace given current market conditions.
(6.2) Permits: All residential permits have been
pulled in Phase 1A, Phase 1B and Phase 2A-1. In
the new development Phase 2B-1 approximately
51 permits have been pulled. Closings: There have
been approximately 460 closings within in Phase
1A, approximately 355 closings within Phase 1B
and approximately 615 closing in Phase 2A-1. All
of the home sin the in current phases are in
various stages of construction. Sales continue to
be strong but there is always the threat of rising
interest rates, material costs and material lead
times slowing the pace of sales.
(6.2.3.) Infrastructure related plans are being
developed, have been submitted or approved for
all of various development phases.
(6.2.4.) Developer has undergone a good faith
effort to market the commercial retail planning
area. All surrounding infrastructure is in place to
accommodate construction should a commercial
developer show interest in starting.
All other provisions, of Section 6, is proceeding in
good faith.
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Section 7 – Development Impact Fees (7.2.2) Development Impact Fee Studies are complete. Adjustments will be made at the 10year
review.
(7.3.5.) Fee Impact Studies associated with
reclaimed water facilities are complete.
(7.5.1 – 7.5.3.) A TUMF Credit Agreement was
executed by the City Council at the May 14, 2019
Meeting and work has been completed on
Highland Springs Avenue between 8th
Street/Wilson Street and Oak Valley
Parkway/Meadowline Way.
Section 8 – Dedications and Conveyances of
Property Interests
(8.1.1.) Plans have been submitted and are
continuing to be submitted for review.
Plans are being submitted and actively processed
by the City for infrastructure improvements.
Section 9 – Processing of Requests and
Applications: Other Government Permits
(9.2) A Deposit Reimbursement Agreement is
executed between the Developer and City.
(9.3) The City recently implemented a new
planning checking software that has slowed the
improvement plan turnaround times.
Section 10 – Amendment and Modification of
Development Agreement
Conforming/ Settlement Agreement Passed
updating Fee Waivers provisions.
Section 11 – Reservations of Authority Conforming/No Update Section 12 – Annual Review Conforming
Section 13 – Default, Remedies & Termination Conforming/No Update Section 14 – Assignment Conforming/No Update
Section 15 – Releases and Indemnities Conforming/No Update Section 16 – Effect of Agreement on Title Conforming/No Update Section 17 – City Officers and Employees:
NonDiscrimination
Conforming/No Update
Section 18 – Mortgage Protection Conforming/No Update
Section 19 – Miscellaneous Conforming/No Update
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250
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*RECORDING REQUESTED BY, )
DOC # 2012-0332888
07/17/2012 02:58P Fee:NC
Recorded in Official Records
County of Riverside
AND WHEN RECORDED MAIL TO: )
)
Larry W. Ward
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City of Banning ) S R U PAGE SIZE DA MISC LONG RFD COPY 99 E. Ramsey Street )
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No Recording Fee Required - Government Code § 27383
DEVELOPMENT AGREEMENT
between
THE CITY OF BANNING
("City")
and
PARDEE HOMES
A California Corporation
("Developer")
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DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (this "Agreement") is entered into on March 27, 2012, between the CITY OF BANNING (the "City"), a municipal corporation, and PARDEE HOMES (the "Developer"), a California corporation, pursuant to Article 2.5 of Chapter 4 of Division 1 of Title 7, §§ 65864 through 65869.5 of the Govermuent Code. The City and the Developer shall be referred to within this Agreement jointly as the "Parties" and individually as a "Party."
RECITALS:
A. Capitalized Terms. The capitalized terms used in these Recitals and throughout this Agreement shall have the meaning assigned to them in Section 1. Any capitalized terms not defined in Section 1 shall have the meaning otherwise assigned to them in this Agreement or apparent from the context in which they are used.
B. Development of the Developer's Property. Concurrent with the approval of this Agreement, the City has approved the Specific Plan, which contemplates low, medium and high density residential development, to a maximum total of 5, 387 dwelling units, 36 acres of commercial/retail development, schools, parks and supporting infrastructure on 1,543 acres, and a general plan amendment and a zone change and has certified a Final Enviromuental Impact Report, State Clearinghouse No. 2007091149, for the area descrihed in Exhibit "A" (the "Developer's Property").
C. Legislation Authorizing Development Agreements. To strengthen the public planning process, encourage private participation in comprehensive planning and reduce the economic risk of development, the Legislature of the State of California adopted the Development Agreement Statute, authorizing the City to enter into an agreement with any person having a legal or equitable interest in real property providing for the development of such property and establishing certain development rights therein. The legislative findings and declarations underlying the Development Agreement Statute and the provisions governing contents of development agreements state, in Government Code §§ 65864(c) and 65865.2, that the lack of public facilities, including, but not limited to, streets, sewerage, transportation, drinking water, school, and utility facilities is a serious impedimeut to the developmeut of new housing, and that applicants and local govermuents may include provisions in development agreements relating to applicant fmancing of necessary public facilities and subsequent reimbursement over time.
D. Intent of the Parties. The Developer and the City have determined that the Project is a development for which a development agreement is appropriate. The Parties desire to define the parameters within which the obligations of the Developer for infrastructure and public improvements and facilities will be met and to provide for the orderly development of the Developer's Property, assist in attaining the most effective utilization of resources within the City and otherwise achieve the goals of the Development Agreement Statute. In consideration of these benefits to the City and the public benefits ofthe development ofthe Developer's Property, the Developer will receive assurances that the City shall grant all permits and approvals required 01102/0012/108862,12
1464
for total development of the Developer's Property and will provide for the assistance called for in this Agreement in accordance with the terms ofthis Agreement.
E. Public Benefits of the Project. This Agreement provides assurances that the public benefits identified below in this Recital E will be achieved in accordance with the terms of this Agreement. The Project will provide local and regional public benefits to the City, including, without limitation:
I. Increased Tax Revenues. The development ofthe Developer's Property in accordance with the terms of this Agreement will result in increased real property and sales taxes and other revenues to the City.
2. Reduced Vehicle Miles Travelled. The Project will reduce vehicle trips by implementing a transportation demand management program that takes advantage of alternative modes of mass transit within the City.
3. Pedestrian Mobility. The Project encourages pedestrian mobility through the provision of walking paths, through signage guiding pedestrians to nearby destinations and through preservation of significant open space to create pleasant environments that will encourage walking.
4. Sustainable Design. The Developer will, to the extent reasonably feasible, include sustainable design for commercial and industrial uses and green building standards for residential construction.
5. Pedestrian Connection. The Project will include a series of public pedestrian trails throughout the Developer's Property.
6. Reduced Traffic Congestion. The Project will include improvements and contribute fees to improvements that will reduce congestion on local streets and the regional transportation network.
7. Public Schools. The Project will allow for the construction of elementary schools in both the Beaumont Unified School District and Banning Unified School District, which will benefit residents both within and outside the Project.
8. Natural Open Space. Over 56 acres of natural open space will be preserved in perpetuity.
9. Parks and Recreation. Park and recreation improvements include:
a. 58.5 acres of community and neighborhood parks
b. 8.0 acres devoted to private recreation centers.
c. 254 acres of public golf course or active open space amenity d. 108.4 acres of other open space.
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10. Financial Impact Mitigation. Based upon a study of financial impacts on the City, the Project will pay a Services Special Tax to alleviate negative financial impacts of the Project on the City.
F. Public Hearings: Findings. ill accordance with the requirements of the California Environmental Quality Act (Public Resources Code § 21000, et seq. ("CEQA")), appropriate studies, analyses, reports and documents were prepared and considered by the Planning Commission and the City Council. The Planning Commission, after a public hearing on March 7, 2012, recommended, and the City Council, after making appropriate findings, certified, by Resolution No. 2012-24 adopted on March 27, 2012 a Final Environmental Impact Report for the Project, more specifically identified as the Final Environmental Impact Report for the Butterfield Specific Plan, State Clearinghouse No. 2007091149, as having been prepared in compliance with CEQA. On March 7, 2012, the Planning Commission, after giving notice pursuant to Government Code §§ 65090, 65091, 65092 and 65094, held a public hearing on the Developer's application for this Agreement. On March 27,2012, the City COlllCil, after providing the public notice required by law, held a public hearing to consider the Developer's application for this Agreement. The Planning Commission and the City Council have found on the basis of substantial evidence based on the entire administrative record, that this Agreement is consistent with all applicable plans, rules, regulations and official policies ofthe City.
G. Mutual Agreement. Based on the foregoing and subject to the terms and conditions set forth herein, Developer and City desire to enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants herein contained, and having determined that the foregoing recitals are true and correct and should be, and hereby are, incorporated into this Agreement, the Parties agree as follows:
I. DEFINITIONS
The following words and phrases are used as defined terms throughout this Agreement.
Each defined term shall have the meaning set forth below.
1.1 Acquisition Agreement. "Acquisition Agreement" shall have the meaning set forth in Section 5.1 below.
1.2 Anniversarv Date. "Anniversary Date means the date of the anniversary of each year following the Effective Date established in Section 3.5.
1.3 Annual Review. "Annual Review" means the annual review of the Developer's performance of the Agreement in accordance with Section 12.1 of the Agreement and Government Code § 65865.1.
1.4 Aoolications. "Application(s)" means a complete application for the applicable land use approvals (such as a subdivision map, conditional use permit, etc.) meeting all of the current ordinances of the City provided that any additional or alternate requirements in those ordinances enacted after the Effective Date which affect the Project application shall apply only to the extent permitted by this Agreement.
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1.5 Appraisal of Land Value. "Appraisal of Land Value" when referred to herein shall mean the determination by an experienced and independent MAl appraiser retained by City (Developer may veto any appraiser selected by City for good cause), in a written appraisal at fair market value based upon comparable sales of unimproved land, and serviced by the existing infrastructure, and with the development restrictions of the Specific Plan, and with the understanding that such value shall not exceed $80,000 per acre.
1.6 Assignment. "Assign" shall have the meaning set forth in § 14.1.1 below. All forms of use of the verb "assign" and the nouns "assignment" and "assignee" shall include all contexts of hypothecations, sales, conveyances, transfers, leases, and assignments.
1.7 Authorizing Ordinance. "Authorizing Ordinance" means Ordinance No. 1451 approving this Agreement, introduced on March 27, 2012 and adopted on April 10, 2012.
1.8 Building Pennit. "Building Permit," with respect to any building or structure to be constructed on the Developer's Property, means a building permit for not less than the shell and core of such building or structure issued by the City's Division of Building and Safety.
1.9 CC&R's. "CC&R's" shall have the meaning set forth in Section 14.4 below.
1.10 Certificate of Compliance. "Certificate of Compliance" shall have the meaning set forth in Section 12.2 below.
1.11 Certificate of Occupancy. "Certificate of Occupancy," with respect to a particular building or other work of improvement, means the final certificate of occupancy issued by the City with respect to such building or other work of improvement.
1.12 CFD. "CFD" means a community facilities district for the Project allowed to be formed pursuant to the CFD Act by a Local Agency.
1.13 CFD Act. "CFD Act" means the Mello Roos Community Facilities Act of 1982 (Government Code § 53311 et seq.), as it may be amended from time to time, authorizing the imposition of special taxes to fund capital facilities and services.
1.14 City. "City" means the City of Banning, California.
1.15 City Council. The "City Council" means the governing body of the City.
1.16 City Development Agreement Ordinance. "City Development Agreement Ordinance" means Chapter 17.60 of the Zoning Ordinance which establishes a procedure for the consideration and approval of development agreements pursuant to the Development Agreement Statute.
1.17 City Manager. "City Manager" means the City Manager of City. -4-
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1.18 City Wide Traffic Improvements. "City Wide Traffic Improvements" means those traffic improvements identified in the Traffic Impact Mitigation Fee established in Article 7.
1.1 9 Claims or Litigation. "Claims or Litigation" means any challenge by adjacent owners or any other third parties (i) to the legality, validity or adequacy of the General Plan, Land Use Regulations, this Agreement, Development Approvals or other actions of the City pertaining to the Project, or (ii) seeking damages against the City as a consequence of the foregoing actions, for the taking or diminution in value of their property or for any other reason.
1.20 Dedicate or Dedication. "Dedicate" or "Dedication" means to offer the subject land to the City .
1.21 Default. "Default" refers to auy material default, breach, or violation of a provision of this Development Agreement as defined in Section 13 below. "City Default" refers to a Default by the City, while "Developer Default" refers to a Default by the Developer.
1.22 Developed Property. "Developed Property" shall mean residential property for which a certificate of occupancy has been issued or a final inspection conducted.
1.23 Development Goals. "Development Goals" shall have the meaning set forth in Section 6.2 below.
1.24 Developer's Property. "Developer's Property" means the 1543 acres of land, more or less, described in Exhibit A in which Developer holds a legal orequitable interest and upon which the Project will be developed.
1.25 Development. "Development" means the improvement of the Developer's Property for purposes of effecting the structures, improvements and facilities composing the Project including, without limitation: grading, the construction of infrastructure and public facilities related to the Project, whether located within or outside the Developer's Property; the construction of structures and buildings; the installation of landscaping; and the operation, use and occupancy of, and the right to maintain, repair, or reconstruct, any private building, structure, improvement or facility after the construction and completion thereof, provided that such repair, or reconstruction takes place during the Term of this Agreement on parcels subject to this Agreement.
1.26 Development Agreement Statute. "Development Agreement Statute" means §§ 65864 through 65869.5 of the Government Code as it exists on the Effective Date.
1.27 Development Approvals. "Development Approvals" means all sitespecific (meaning specifically applicable to the Developer's Property only and not generally applicable to some or all other properties within the City) plans, maps, permits, and entitlements to use of every kind and nature. Development Approvals includes, but is not limited to, specific plans, site plans, tentative and final subdivision maps, vesting tentative maps, variances, zoning designations, planned unit developments, conditional use permits, grading, building and other similar permits, the site-specific provisions of general plans, environmental assessments, including environmental impact reports, and any amendments or modifications to those plans, -5-
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maps, permits, assessments and entitlements. The term Development Approvals does not include rules, regulations, policies, and other enactments of general application within the City.
1.28 Development Impact Fees. "Development Impact Fees" means the monetary consideration, other than a tax or assessment, charged by the City in connection with mitigating the Project's specific impacts and the development of the public facilities related to the Development of the Project, including those fees, calculated on the basis of the number of residential units or square footage of non-residential development to be constructed, as set forth on Exhibit "D" attached hereto as well as those Development Impact Fees set forth in Exhibit B and being revised. Development Impact Fees do not include Processing Fees.
1.29 Development Plan. "Development Plan" means the Existing Development Approvals, Future Development Approvals and Existing Land Use Regulations.
1.30 Director. "Director" means the City's Director of Community Development or equivalent official.
1.31 Economically Distressed Year. "Economically Distressed Year" means any calendar year in which the number of building permits for single family dwelling units issued in Western Riverside County (includes all cities and unincorporated county territory) are less than 50% of the average number of building permits issued during the prior 25 years, based on the annual report of the California Construction Industry Research Board. For example, for the 25 year period from 1987 to 2011, inclusive, total permits issued were 235,455 and the annual average was 9418. In 2008, 2009, 2010 the total permits issued were 2794, 2717 and 3321, so all three years would have been declared "Economically Distressed" herennder. If the number of building permits issued in any calendar year are not available from the California Construction Industry Research Board, then the City shall obtain them from any other reliable source measuring the same data over the period.
1.32 Effective Date. "Effective Date" means the date this Agreement becomes effective as set forth in Section 3.5.
1.33 Eligible Facitlities. "Eligible Facilities" means the Proposed Project Facilities and other public facilities, fees and contibutions for public facilities, as described in the Financing Plan.
1.34 Exaction. "Exaction" means Dedications, payment of Development Impact Fees and/or construction of public infrastructure by the Developer as part of the Development of the Project. The development will be subject to all development and/or in lieu fees currently in the process of being studied by the City as indentified in Section 7.22 so long as they are adopted prior to the issuance of building permits for specific portions of the development proposed herein. The amonnt of the fees shall be as required at the time of issuance of building permits.
1.35 Existing Development Approvals. "Existing Development Approvals" means only the Development Approvals which are listed on Exhibit "B." -6-
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1.36 Existing Land Use Regulations. "Existing Land Use Regulations" means those Land Use Regulations applicable to the Property in effect on the Effective Date.
1.37 Financing Plan. "Financing Plan" means Exhibit "H" attached hereto.
1.38 Force Majeure. "Force Majeure" shall have the meaning set forth in Section 19.2 below.
1.39 Future Development Aoorovals. "Future Development Approvals" means those Development Approvals applicable to the Developer's Property approved by the City after the Effective Date such as tentative tract maps, subdivision improvement agreements and other more detailed planning or engineering approvals.
1.40 General Plan. "General Plan" means the City's General Plan as it exists on the Effective Date, and as expressly amended by (i) General Plan Amendment 11-2501 approved by the City Council concurrently with this Agreement; and (ii) future amendments applicable to the Developer's Property, if permitted, by Article II.
1.41 Goals and Policies for Financing. "Goals and Policies for Financing" or "Goals and Policies" means the City's goals and policies adopted in accordance with Section
5.2.1. 1.42 Golf Course/Active Open Space. "Golf Course/Active Open Space" means the area containing all of Planning Area 35 and Planning Area 39 as described in the Specific Plan and Sections 5.3 and 5.9.10 below.
1.43 Grading Permit. "Grading Permit" means a permit issued by the City's Division of Building and Safety which allows the excavation or filling, or any combination thereof, of earth.
1.44 hnprovement Area. "hnprovement Area" shall have the meaning set forth in Section 5.1 below.
1.45 Innocent Owner. "Innocent Owner" shall have the meaning set forth in Section 13.6 below.
1.46 LAFCO. "LAFCO" means the Riverside County Local Agency Formation Commission.
1.47 Land Use Regulations. "Land Use Regulations" means those ordinances, laws, statutes, rules, regulations, initiatives, policies, requirements, guidelines, constraints, codes or other actions of the City which affect, govern, or apply to the Developer's Property or the implementation of the Development Plan. Land Use Regulations include the ordinances and regulations adopted by the City which govern permitted uses of land, density and intensity of use and the design of buildings, applicable to the Property, including, but not limited to, the General Plan, the Specific Plan, zoning ordinances, development moratoria, implementing growth management and phased development programs, ordinances establishing development exactions, subdivision and park codes, any other similar or related codes and building and -7-
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improvements standards, mitigation measures required in order to lessen or compensate for the adverse impacts of a project on the environment and other public interests and concerns or similar matters. The term Land Use Regulations does not include, however, regulations relating to the conduct of business, professions, and occupations generally; taxes and assessments; regulations for the control and abatement of nuisances; building codes; encroachment and other permits and the conveyances of rights and interests which provide for the use of or entry upon public property; any exercise of the power of eminent domain; or similar matters.
1.48 Legal or Equitable Interest. "Legal or Equitable Interest" means (i) an option or purchase agreement or (ii) fee title evidenced by appropriate title insurance issued in favor of the Developer.
1.49 LMD. "LMD" means the Landscape and Maintenance District established pursuant to Streets and Highways Code § 22500 et seq. to fund parks, parkways, City rights of way landscaping and common areas.
1.50 Local Agency. "Local Agency" means any public agency authorized to levy, create or issue any form of land secured fmancing over all or any part of the Project, including, but not limited to, the City.
1.51 Lot. "Lot" means any of the parcels legally created within the Project as a result of any approved fmal subdivision, parcel or tract map, pursuant to the Subdivision Map Act or recordation of a condominium plan pursuant to Civil Code § 1352 .
1.52 Master Tract Map. "Master Tract Map" (or "A Map") means a large scale tract map covering one or more complete Planning Areas which will include all infrastructure necessary to develop the tract and a phasing plan as to the development of the infrastructure and the subsidiary subdivisions within the tract. The Master Tract Map is a subdivision map within the meaning of the Subdivision Map Act and shall meet the requirements of the Act and of this Agreement. The Master Tract Map may also be a fmancing map for purpose of financing the development ofthe Project or the conveyance ofiarge lots and may not require the actual construction of improvements.
1.53 Mortgage. "Mortgage" means a mortgage, deed of trust, sale and leaseback arrangement or other transaction in which all, or any portion of, or any interest in, the Developer's Property is pledged as security.
1.54 Mortgagee. "Mortgagee" refers to the holder of a beneficial interest under a Mortgage.
1.55 Mortgagee Successor. "Mortgagee Successor" means a Mortgagee or any third party who acquires fee title or any rights or interest in, or with respect to, the Developer's Property, or any portion thereof, through foreclosure, trustee's sale, deed in lieu of foreclosure, lease termination, or otherwise from, or through, a Mortgagee. If a Mortgagee acquires fee title or any right or interest in, or with respect to, the Developer's Property, or any portion thereof, through foreclosure, trustee's sale or by deed in lieu of foreclosure and such Mortgagee subsequently conveys fee title to such portion of the Developer's Property to a third party, then such third party shall be deemed a Mortgagee Successor. -8-
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1.56 Municipal Code. "Municipal Code" means the City's Municipal Code as it existed on the Effective Date and as it may be amended from time to time consistent with the terms of this Agreement.
1.57 Non-Defaulting Party. "Non-Defaulting Party" shall have the meaning set forth in Section 13.1 below.
1.58 Owner. "Owner" means Pardee Homes and any successors during the period of time that each such person or entity owns fee title to any portion of the Developer's Property prior to the development of such portion of the developer's Property and subject to the terms of this Agreement.
1.59 Park fees. "Park Fees" means Development Impact Fees levied by the City for Open Space and Park Development pursuant to Chapter 15.68 of the Municipal Code.
1.60 Phase. "Phase" shall have the meaning set forth in Section 6.2 below.
1.61 Phasing Plans. "Phasing Plans" shall mean the detailed plans for development of the Proposed Project Facilities and other infrastructure and for the Project which are developed pursuant to Section 6.5 as a part of processing the Subdivision Maps.
1.62 Planning Area. "Planning Area" means each of the 75 planning areas described in the Specific Plan, and shown on Exhibit "A."
1.63 Planning Commission. "Planning Commission" means the City's Planning Commission.
1.64 Pre-Oualified Buyer. "Pre-Qualified Buyer" means a publicly traded builder or developer or a privately held merchant builder with a minimum net fmancial worth of Five Million Dollars ($5,000,000) who has constructed at least 75 homes in California during the preceding five year period.
1.65 Property Owner's Association or POA. "Property Owner's Association" or "POA" means one or more association formed among the owners of real estate located within the Property (as the same may be subdivided from time to time), including, but not limited to, one or more associations of homeowners and/or other associations of owners of industrial, commercial, educational and retail property.
1.66 Processing Fees. "Processing Fees" means (i) the City's normal fees for processing, enviroumental assessment/review, tentative tracts/parcel map review, plan checking, site review, site approval, administrative review, building permit (plumbing, mechanical, electrical, building), inspection and similar fees imposed to recover the City's costs associated with processing, review and inspection of applications, plans, specifications, etc., and (ii) fees and charges levied by any other public agency, utility, district or joint powers authority, whether or not City is a member of such body or such fees are collected by the City, and whether or not such fees are used for maintenance or capital outlay purposes. -9-
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1.67 Project. "Project" means the Development ofthe Developer's Property, pursuant to this Agreement and the Existing Land Use Regulations, as depicted on Exhibit "B" attached hereto.
1.68 Proposed Project Facilities. "Proposed Project Facilities" means those improvements set forth on Exhibit "F" attached hereto or otherwise included in conditions of approval of the maps.
1.69 Reimburse or Reimbursement. "Reimburse" or "Reimbursement" means the provision by the City of cash or credit in return for land, goods or services provided by Pardee Homes.
1.70 Reservations of Authority. "Reservation of Authority" shall have the meaning set forth in Article II below.
1.71 Services Special Tax. "Services Special Tax" shall mean the special tax authorized to be levied by the CFD(s) established over the Developer's Property to alleviate the negative fiscal impact of the Project on City services as established by the Fiscal hupact Analysis ("FIN') and as further described in Section 5.3 below.
1. 72 Specific Plan. "Specific Plan" means the Butterfield Specific Plan, prepared by RBF Consulting and approved by the City Council by Ordinance No. 1450 introduced on March 27,2012, adopted on April 10, 2012.
1. 73 Subdivision Map. "Subdivision Map" (or "B Map") means the subsidiary subdivision maps for the development of any Tract which shall be consistent with the conditions of the Master Tract Map and shall contain its own phasing plan for the installation of the infrastructure and other improvements within the subdivision. All subdivision maps shall meet the requirements ofthe Subdivision Map Act including § 66473.7 (See 65867.5).
1.74 Subdivision Map Act. "Subdivision Map Act" means Government Code § 66412 et seq. as implemented by Title 16 of the Municipal Code.
1.75 Taxes. "Taxes" means general or special taxes, including but not limited to ad valorem property taxes, sales taxes, transient occupancy taxes, utility taxes or business taxes of general applicability citywide which do not burden the Developer's Property disproportionately to similar types of development in the City and which are not imposed as a condition of approval of a development project. Taxes do not include Development Impact Fees, Processing Fees or Traffic Control Facility Fees.
1.76 Ten or 10th Year Anniversarv Review. "Ten Year Anniversary Review" means the review performed upon each 10th anniversary of the Effective Date as provided in Section 6.6.
1.77 Term. "Term" means that period oftime during which this Agreement shall be in effect and bind the Parties, as defined in Article 6.7 below. -10- 01102/00121108862.12
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1.78 Traffic Control Facilitv Fee. "Traffic Control Facility Fee" means the fee set forth in Exhibit "B" attached hereto.
1.79 Transfer. "Transfer" shall have the meaning set forth in Article 14 below.
1.80 Trigger Percentages. "Trigger Percentages" shall have the meaning set forth in Section 14.1.1 below.
1.81 TUMF. "TUMF" means the Transportation Uniform Mitigation Fee promulgated by the Western Riverside Council of Governments and implemented by Chapter
15.76 of the Municipal Code.
1.82 Zoning Code. "Zoning Code" means Title 17 of the Municipal Code as it existed on the Effective Date except (i) as amended by any zone change relating to the Developer's Property approved concurrently with the approval of this Agreement, including Zone Change No. 11-3501, and (ii) as the same may be further amended from time to time consistent with this Agreement.
2. EXHIBITS.
The following are the Exhibits to this Agreement:
Exhibit "A": Map and Legal Description of the Developer's Property Exhibit "B": Existing Development Approvals/Fee Studies Exhibit "C": Estoppel Certificate
Exhibit "D": Development Impact Fees
Exhibit "E": Additional Agreements Concerning Development Exhibit "F": Proposed Project Facilities
Exhibit "G": Highland Springs Avenue Improvements
Exhibit "H": Butterfield Project Financing Plan
3. TERM.
3.1 Term. The term of this Development Agreement (the "Term") shall commence on the Effective Date and shall continue for a period of forty (40) years, subject to review, as called for in Section 6.2 below, to determine whether the Development Goals have been met, and reduction in the Term of five (5) years for each time the Development Goals of a Phase are not met and extensions for Economic Distress, as provided in Sections 6.6.5 and 6.7 below.
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3.2 Termination Upon Completion of Construction. This Agreement shall terminate with respect to any Lot, and such Lot shall be released and no longer subject to this Agreement, without the execution or recordation of any further document, when a certificate of occupancy has been issued for the last building on the Lot or, if no certificate is issued, when the [mal inspection for the last building on the Lot has taken place.
3.3 Termination for Default. This Agreement may be terminated due to the occurrence of any default in accordance with the procedures in Article 13.
3.4 Extension of the Term: The Term shall be extended by one (I) year for each Economically Distressed Year occurring during any Phase up to a maximum of three (3) years for any Phase.
3.5 Effective Date. This Agreement shall become effective upon the date thirty (30) days after the adoption of the Authorizing Ordinance if no Claim or Litigation have been filed which would prevent the Authorizing Ordinance from taking effect. If such a Claim or Litigation has been filed, then the Effective Date shall be the date that the Claim or Litigation has been successfully resolved in the City's favor, and the time for any further judicial review has run, so that the Authorizing Ordinance shall be effective. The City shall give Developer notice as to the date established as the Effective Date. The Effective Date is not otherwise tolled for any other Force Majeure as described in Section 19.2.
4. DEVELOPMENT OF THE DEVELOPER'S PROPERTY.
4.1 Right to Develop. During the Term, the Developer shall have a vested right to develop the Developer's Property (subject to Article 11 below) to the full extent permitted by the Development Plan and this Agreement. Except as provided within this Agreement, the Development Plan shall exclusively control the development of the Developer's Property (including the uses of the Developer's Property, the density or intensity of use, the maximum height and size of proposed buildings, the provisions for reservation or dedication of land for public purposes and the design, improvement and construction standards and specifications applicable to the Project). The maximum number of residential units authorized to be constructed hereunder and the approximate acreage of commercial development, without regard to any density bonus or incentive or concession for child care pursuant to Government Code §§ 65915 through 65918 or other similar legislation or regulation, is 5,387 units and approximately 36-acres of commercial development. In furtherance of the foregoing, the Developer retains the right to apportion the uses, intensities and densities, between itself and any subsequent Owners, upon the sale, transfer, or assignment of any portion of the Property, so long as such apportionment is consistent with the Existing Land Use Regulations and this Agreement.
4.2 Right To Future Approvals. Subject to the City's exercise of its police power authority as specified in Article 11 below, the Developer shall have a vested right: (i) to receive from the City all future Development approvals for the Developer's Property that are consistent with, and implement, the Existing Land Use Regulations and this Agreement; (ii) not to have such approvals be conditioned or delayed for reasons which are inconsistent with the Existing Land Use Regulations or this Agreement; and (iii) to Develop the Developer's Property in a mauner consistent with such approvals in accordance with the Existing Land Use -12-
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Regulations and this Agreement. All future Development Approvals for the Developer's Property, including without limitation General Plan amendments, zone changes, or parcel maps or tract maps, shall upon approval by the City, be vested in the same manner as provided in this Agreement for the Existing Land Use Regulations, for the term of this Agreement.
4.3 Existing Development Approvals. Only those items specifically set forth on Exhibit "B" hereto are deemed Existing Development Approvals for purposes of this Agreement. Any approvals not included within Exhibit "B" shall not apply to the Project with the exception of those reservations set forth in Article 11 below.
4.4 Specific Plan. Land use and Development of the Property shall be governed by the Specific Plan and this Agreement. Notwithstanding any other provision of this Agreement, the Developer shall have the right, but not the obligation, to Develop the Developer's Property for the uses specified in the Specific Plan at the locations specified in the Specific Plan.
4.5 Priority Of Specific Plan. The City has determined that the Specific Plan is consistent with the General Plan and the Zoning Code. As such, the Specific Plan shall be the primary document governing the use and Development of the Developer's Property and, in the event of a conflict, shall prevail over any other of the Existing Land Use Regulations except for this Agreement, which prevails over the Specific Plan.
4.6 Later Enacted Measures. This Agreement is a legally binding contract which will supersede any initiative, measure, moratorium, statute, ordinance, or other limitation enacted after the Effective Date, except as provided in Article 11. Any such enactment which affects, restricts, impairs, delays, conditions, or otherwise impacts the implementation of the Development Plan (including the issuance of all necessary Future Project Approvals or permits for the Project) in any way contrary to the terms and intent of this Agreement shall not apply to the Project unless otherwise provided by State law.
4.7 Impact Fee Studies. As provided in Section 7.2, studies for certain Development Impact Fees, listed in Exhibit "D," will be performed after the Effective Date of this Agreement and shall become a part of the Existing Development Approvals. Additionally, Development Impact Fees are subject to review and adjustment as a part of the 10 Year Anniversary Reviews, in accordance with Section 6.6. The cost of performing the studies may be included in the fees.
5. FINANCING AND THE CITY'S OBLIGATIONS.
5.1 Formation of CFD(s) and LMDs. Subject to the provIsions of this Article 5, some or all of the Eligible Facilities shall be funded through the City's formation of one or more CFDs and the levy of a special tax of the CFD(s) (the "Facilities Special Tax") and issuance of bonds secured by the Facilities Special Tax (the "Bonds") in accordance with the Financing Plan set forth in Exhibit H. Such CFD(s) shall, pursuant to Section 5.3, also be authorized to fmance certain City public services costs (incurred as a result of Development of the Developer's Property) through the levy of a special tax, in the not to exceed amount set forth in the Financing Plan, on each residential unit located within the boundaries of such CFD(s) (the -13-
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"Services Special Tax"). Additionally, landscape maintenance districts ("LMDs") may be formed under Section 5.6.
5.1.1. Procedures for Formation. The City and the Developer shall cooperate in good faith to form one or more (i) CFDs and/or designate improvement areas therein (the "Improvement Areas"), (ii) LMDs and designate improvement areas therein (also "Improvement Areas"), and (iii) CFDs for the Special Services Tax (collectively referred to herein as the "Financing Districts"), which are consistent with the Financing Plan and which in the aggregate will encompass and encumber the Developer's Property. Final terms and conditions regarding the formation of the Financing Districts, their boundaries, Improvement Area boundaries, the rate and method of apportionment of the Services Special Taxes and Facilities Special Taxes to be levied in any CFD, LMD and/or Improvement Area (including any tax zones therein), any acquisition or construction agreements related thereto, and the terms of one or more series of Bonds to be issued in conjunction therewith shall be determined jointly by City and the Developer in accordance with the Financing Plan and the City's Goals and Polices for Financing. In conjunction with the formation of any Financing District, the Developer and the City shall cooperate in good faith to negotiate and finalize any acquisition and funding agreement prior to the formation of the first Financing District addressing the terms of construction, acquisition and financing of any of the Eligible Facilities to be funded by the Financing District (such agreement to be referred to herein as the "Acquisition Agreement").
Developer shall cooperate in the establishment of the levy over Developer's Property and not exercise any rights of protest.
5.1.2. Timing of Formation. Developer shall prepare all studies and submit all documents necessary to form the Financing Districts within one year after the adoption of City's Goals and Policies for Financing. After Developer has initiated formation of the Financing Districts, City shall form the Financing Districts consistent with the City's adopted Goals and Policies for Financing and State Law. City shall complete formation proceedings within 180 days after Developer makes the necessary submission. The Developer shall indemnity the City and hold it harmless against Claims or Litigation brought in connection with the formation ofthe Financing Districts.
5.1.3. Failure to Form Financing Districts. If any of the contemplated Financing Districts are not formed, or formed but not in accordance with the terms of this Agreement, through the failure of one Party to perform its obligations pursuant to Section
5.1, the other Party shall have the right, but not the obligation, to terminate this Agreement upon providing 30 days written notice to the Party which has failed to perform prior to the actual termination date.
5.2 Adoption of Goals and Policies for Financing. Before the Developer undertakes development of any units, the City shall retain a financial advisor and prepare a Citywide policy for undertaking land based CFD and assessment financing. The draft policy will be reviewed with the Developer and the City shall in good faith consider any comments made by the Developer on the draft policy. The goals and policies for Financing shall be adopted within 180 days after the Effective Date and shall be consistent with Exhibit H, including the Financing Parameters described therein. The goals and policies shall be adopted by Council by resolution and thereafter be the Goals and Policies for Financing. The City may amend the Goals and -14-
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Polices for Financing from time to time, and will be a part of the Existing Land Use Regulations hereunder, but such amendment shall not apply to the Development unless they are consented to by Developer.
5.3 Services Special Tax. The final Fiscal Impact Analysis prepared by the City's consultant, Willdan Financial Services, dated September 16, 2011, (the "FIA") demonstrates an overall negative fiscal impact on certain City public service costs incurred as a result of Development of the Developer's Property, including without limitation, the City's costs for police and fire services. The FIA demonstrates that such negative fiscal impact can fully be mitigated by an annual Services Special Tax, implemented as required by this Section 5.3 and the Financing Plan set forth in Exhibit "H" attached hereto. The annual services Special Tax shall not exceed $ 115 per dwelling unit of greater than 1820 square feet of habitable area and $92 per dwelling unit of 1820 or less square feet of habitable area in fiscal year 2013 -14 and shall increase each fiscal year thereafter by 3%. The Services Special Tax may be levied in perpetuity and shall only be levied by the CFD(s) formed pursuant to Section 5.1 on residential parcels classified as Developed Property, but Developer shall cooperate in the establishment of the levy over Developer's Property and not exercise any rights of protest.
5.4 Planning Area 19, 35, 39 and 71 Drainage Facilities. In the event that the Developer, in its sole and absolute discretion, determines that the Golf Course is financially infeasible, the flood control improvements within Planning Areas 35 and 39 shall be considered Proposed Project Facilities and may be funded through the CFD(s). If this occurs, then portions of the land within Planning Areas 35 and 39 will be dedicated as public open space and the remaining portions dedicated to flood control appurtenances, to be transferred to the City or the Riverside County Flood Control District upon completion of the flood control facilities on such site and shall be improved to the Master Plan Standards of District. Plans for developing the necessary improvements Shall be developed as a part of the Phasing Plans pursuant to Section
6.5, but improvements may not be required until the City Engineer determines that development will (i) intrude into the flood plan or (ii) cause the alteration of Smith Creek. The City Engineer may approve temporary improvements until the scale of the portion of the Project completed requires permanent structures. Upon transfer ofthe portions of the Planning Areas relating to the flood control facilities to the City or District, if the CFD( s) are formed or, as soon thereafter as the CFD(s) are formed, the City shall pay the agreed upon construction costs to the Developer from available CFD Proceeds in accordance with the Financing Plan. (Also see Sections 8.1.3. and 8.2.)
5.5 Reimbursement Agreements. If, and to the extent that, the Developer constructs or installs any infrastructure and/or facilities that have a capacity or size in excess of that required to serve the Project or to mitigate its impacts, the City shall reimburse the Developer for all costs and expenses incurred by the Developer in constructing such improvements for that portion of the Dedications, public facilities and/or infrastructure that the City, pursuant to this Agreement, may require pursuant to the Existing Land Use Regulations.
The City further shall adopt ordinances, including but not limited to those authorized by Government Code § 66485 et seq., as may be required in order to impose a reimbursement obligation on other properties which may be served or benefited by the oversized infrastructure or facilities. The terms of the Reimbursement Agreements shall otherwise be consistent with the City's forms generally used with all other development projects of over 200 units. Such -15-
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reimbursement shall be paid to the Developer at the earliest opportunity out, and upon collection, of available fees from benefited developments so long as consistent with City's other contractual obligations. Repayment shall not extend beyond the Term of this Agreement.
5.6 Landscape Maintenance Districts. The City shall take, and Developer shall support, all steps necessary to establish LMD(s) or other maintenance districts, to fund maintenance of City parks, parkways, City rights of way landscaping, and common areas as provided in Section 5.1. The Developer shall make a deposit to pay the cost for review and approval of all agreements, studies, analysis and actions necessary for the establishment of the LMD(s).
5.7 Reimbursement for Pre-Approval Costs. The City shall provide fee credits to the applicable DIPs, as set forth below, for those residential units for which Commencement of Construction occurs by the twelfth anniversary of the Effective Date, but not more than for the first 1200 units. "Commencement of Construction" as used herein shall have the same meaning as under Section 6.3. The units eligible for fee credits for reimbursement shall be those of the 1200 which are not eligible for the incentive provided for in Section 6.8. If the incentive is taken in accordance with Section 6.8, then the amount of the credit for each unit for each fee shall be determined by taking the amount of cost to be reimbursed and dividing it by 1200 minus the number of units eligible for the incentive. As an example, if the total amount of the cost to be reimbursed is $227,500 and the number of units eligible for the incentive is 400, then the amount of the credit for each unit after the first 400 within the 12 years following the Effective Date will be $227,500/(1200-400) = $227,500/800 = $284 rounded to the nearest dollar. These fee reimbursements may be included in the subsequent fee studies performed pursuant to Section 7.2.2. [The per unit figure shown below assumes the credit is taken over 1200 units.]
5.7.1.1 A fee credit against updated Sewer Sanitary Fee and Recycled Water Fee of $227,500 or $189.60 per unit for the Corolla Study related to the sewer and recycled water master plans.
5.7.1.2 A fee credit against the updated Domestic Water Fee of $1,115,000 or $929.17 per unit for the consultant time related to the preparation of the City's 2010 Urban Water Management Plan.
5.7.1.3 A fee credit against the proposed revised Traffic Control Facility Fee of $105,000 or $875 per unit for the consultant time related to the preparation of the Traffic Impact Analysis and related traffic fee prepared documents.
5.7.1.4 A fee credit against the proposed revised Traffic Control Facility Fee of$45,000 or $375 per unit for the development of Citywide fees related to the Traffic Impact Fees study or other fee studies required as a result of entitlement activities.
5.7.1.5 A fee credit against the proposed revised Traffic Control Facility Fee or other appropriate fee of $550,000 or $462.50 per unit for the consultant time and plan preparation for required studies related to pre-project improvements to Highland Springs near the 1-10 freeway.
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5.7.1.6 A fee credit against the General Plan Fee of
$187,500 or $156 per unit for the General Plan Traffic Circulation Element Amendment preparation.
5.8 Obligations of Developer Respecting Financing; No Speculation.
Except as specifically provided herein, it is expressly understood that the Developer is fully responsible for the cost of the Project and obtaining any necessary construction or long term financing therefore. The Developer's Property shall be used solely to support the development of the Project and may not be pledged as security to support fmancing for any other purpose, in accordance with Article 18.
6. TIME FOR CONSTRUCTION AND COMPLETION OF PROJECT.
6.1 Timing of Development. The Parties acknowledge that the substantial public benefits to be provided by the Developer to the City pursuant to this Agreement are in consideration for, and in reliance upon, assurances that the City will permit Development of the Developer's Property in accordance with the terms of this Agreement. Accordingly, the City shall not attempt to restrict or limit the Development of the Developer's Property in any manner that would conflict with the provisions of this Agreement. The City acknowledges that the Developer cannot at this time predict the timing or rate at which the Developer's Property will be Developed. The timing and rate of Development depend on numerous factors such as market demand, interest rates, absorption, completion schedules and other factors, which are not within the control of the developer or the City. In Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465, the California Supreme Court held that a construction company was not exempt from a city's growth control ordinance notwithstanding that the construction company and the city had entered into a consent judgment (tantamount to a contract under California law) establishing the company's vested rights to develop its property in accordance with the zoning.
The California Supreme Court reached this result on the basis that the consent judgment failed to address the timing of development. It is the intent of the Parties to avoid the result of the Pardee case by acknowledging and providing in this Agreement that the Developer shall have the vested right to Develop the Developer's Property in such order and at such rate and at such time as the Developer deems appropriate, but in accordance with the Development Goals and the phasing plans developed in accordance with Section 6.5, and in accordance with other terms hereof or in the Development Approvals related to project phasing and timing. In addition to, and not in limitation of, the foregoing, but except as set forth in the following sentence, it is the intent of the Parties that no City moratorium or other similar limitation relating to the rate or timing of the Development of the Developer's Property or any portion thereof, whether adopted by initiative, referendum or otherwise, shall apply to the Developer's Property to the extent that such moratorium, referendum or other similar limitation is in conflict with this Agreement.
Notwithstanding the foregoing, the Developer acknowledges that nothing herein is intended or shall be construed as (i) overriding any provision of the Existing Land Use Regulations to the phasing of development of the Project; or (ii) restricting the City from exercising the powers described in Section 11 of this Agreement to regulate development of the Property. Nothing in this Section 6.1 is intended to excuse or release the Developer from any obligation set forth in this Agreement which is required to be performed on or before a specified calendar date or event without regard to whether or not one or more Owners proceeds with any portion of the Project.
The City acknowledges that the Project Phasing set forth in the Specific Plan does not require -17-
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that the Project be Developed in any specific order but, instead, are illustrative of how the Project may be Developed. The Project Phasing instead is controlled by this Agreement.
6.2 Development Goals. Notwithstanding the provisions of Section 6.1, the Developer must achieve certain goals and objectives in terms of Project development in order to keep the Agreement in place for the full term contemplated in Section 3.1. The development of the Project will be reviewed at each Ten Year Anniversary Review. The Development Goals are as follows:
Phase I (10m Anniversary)
• Development will begin near the comer of
Highland Springs and Wilson unless
otherwise agreed
• 1,200 Residential Units to be constructed
• Commercial retail development per 6.2.4
• Outlet for Smith Creek and other
improvements in Section 6.2.3.
Phase II (20th Anniversary • 1,600 residential units to be constructed Phase III (30m Anniversary) • 1,400 residential units to be constructed Phase IV (40m Anniversary) • 1,187 residential units to be constructed
6.2.1. Cumulative Measure of Units. The Development Goals for each Phase shall be cumulative, e.g., if the Developer has constructed 2000 Residential Units in Phase I and 1000 Residential Units in Phase II, then the Developer will have met the Development Goal for Phase II even though less than 1500 Residential Units were constructed during Phase II.
6.2.2. More Detailed Phasing Plans Developed. Within each Phase, as defined above, more detailed phasing plans for each subdivision shall be developed in accordance with Section
6.5, and are subject to the City's review and approval as conditions of approval of the Tract or Subdivision Map and, as approved, shall become a part of the Existing Approvals.
6.2.3. Additional Phase I Development. In addition to the residential unit Development Goals, Phase I shall also include: (i) commercial development as specified in Section 6.2.4, (ii) the outlet for the Smith Creek flood control improvements at Wilson, (iii) the preparation and dedication of the RecreationlEmergency Center site described in Section 8.1.4, (iv) the satellite water treatment plant described in Section 8.3, (v) the water tanks described in Section 8.5; and (vi) such other Proposed Project Facilities as required by the Specific Plan and the Phasing Plans approved pursuant to Section 6.5. Notwithstanding the specification oftiming as provided herein, with the approval of the City Manager, any public improvement required herein may be deferred for good cause.
6.2.4. Commercial Development. A minimum 23-acre retail-commercial site at the comer of Highland Springs and Wilson (Planning Area 18) will be prepared as a part of Phase I, and concurrently with the development undertaken pursuant to Section 6.8. Site preparation -18-
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shall require the grading of the Site, construction of surrounding streets, and bringing all necessary utilities and infrastructure for development. Developer shall also demonstrate a good faith effort undertaken over at least a five (5) year period to market the site for sale or lease to a suitable user. Additionally, Developer shall maintain the potential to expand the site to as much as 88 acres to permit a larger commercial development, provided that such expanded project obtains any necessary entitlements. Developer shall advise City within five (5) years of the Effective Date as to what interest there might be in the expanded project and the parties will mutually agree as to the scope of the project. The timely preparation and attempts to market this site is required for completion of Phase I and is subject to the same treatment as the residential units (i.e. phasing period can be prolonged for economic distress and the Term of Agreement can be shortened pursuant to Section 6.7). The goal of the City is to locate a significant sales tax generating "big box user" as the major tenant of the project. Accordingly, City retains the right to approve the major tenant in the project (tenants over 75,000 sq. ft), in accordance with the provisions in Article 14 as a transferee by lease or sale.
6.2.5. Extensions of Phases. The length of each Phase for the purposes of this Section
6.2 shall be extended by one (1) year for each Economically Distressed Year occurring during the Phase, up to a maximum ofthree (3) years as provided in Section 6.6.5.
6.3 Development Goals Satisfied By Commencement of Construction. The Development Goals for residential units specified above are satisfied if construction has commenced. "Commencement of Construction" of a residential unit means that building plans have been approved, that a building permit has been issued and that construction has commenced on the unit. The unit shall not be counted if the building permit expires without completion of the unit.
6.4 Public Improvements. The Parties understand and agree that the Specific Plan identifies the public infrastructure and though it contains phasing concepts, it does not specify precisely the phasing ofthe construction of public infrastructure. The development phasing will be consistent with the Specific Plan and this Agreement. The City desires that required public infrastructure generally be constructed in the early portion of the applicable phase of the development cycle subject to the guidelines specified below. In consideration of the foregoing, notwithstanding any provision herein to the contrary, the City shall retain the right to condition any Future Approvals to require Developer to dedicate necessary land, pay the development fees specified in Article 7, and/or to construct the required public infrastructure ("Exactions"), at such time as City shall determine in accordance with the process in Section 6.5 and subject to the following conditions:
A. The dedication, payment or construction must be to alleviate an impact caused by the Project or be of benefit to the Project; and B. The timing of the Exaction should be reasonably related to the phasing of the development of the Project and said public improvements shall be phased to be commensurate with the logical progression of the Project development as well as the reasonable needs of the public and the improvements shall be completed based upon the needs of the general public existing from time to time. -19-
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When the Developer is required by this Agreement and/or the Development Plan to construct any public improvements which will be dedicated to the City or any other public agency, upon completion, and if required by applicable laws to do so, the Developer shall perform such work in the same manner and subject to the same construction standards as would be applicable to the City or such other public agency should it have undertaken such construction work. The Developer shall pay prevailing wages as required by law.
6.5 Development of Phasing Plans During Subdivision Map Approvals. The phasing and timing requirements for the construction of all development including public improvements shall generally be in accordance with the Development Approvals and applicable provisions of this Agreement (For example, Sections 6.2, 6.4, 6.5, 7.3, 8.0, etc.). Although the overall timing of Project development remains subject to the Developer's discretion based on market conditions in accordance with Section 6.1, there is a logical sequence to the development and certain improvements are required to be complete before phases of the Project can be considered complete and ready for occupancy. The Phasing Plan will be developed over time in accordance with the following process:
6.5.1. Master Phase Tract Map. Each Phase shall have a Master Tract Map which shall be submitted for financing and conveyance purposes only and no improvements may be constructed nor shall development be permitted pursuant to such approved Tract Map except through submission and approval of tentative and final Subdivsion Maps.
Concurrently with processing of the Master Tract Map, all tentative Subdivision Maps for the Tract shall be submitted and processed.
6.5.2. Subdivision Maps. Each Master Tract Map shall designate future subdivisions within the Tract and the order of subdivision development to the extent that the need for development of public infrastructure dictates the logical progression of subdivision development. Each Subdivision Map shall show all infrastructure necessary for the development of the Subdivision. Each subdivision will have a written Phasing Plan approved by the Director and the City Engineer prior to commencement of development of the subdivision specifying when the lots within the subdivision will be developed and when all public infrastructure within the subdivision will be constructed. Generally all streets, lighting, curbs and gutters, sidewalks, parkway landscaping, asphalt concrete paving, traffic signs and stripping, medians, landscaping, drainage facilities, storm drains, water lines, sewer lines, utility lines, trails and other facilities within the subdivision must be completed before release of any occupancy permits within the subdivision. All conditions which require the provision of Proposed Project Facilities and Subdivision Improvements for the area covered by each tentative Subdivision Map must be satisfied, either through performance or through the provision of suitable security, prior to the approval and recordation of the Subdivision Map.
6.5.3. Proposed Project Facilities. Attached as Exhibit "F" are diagrams showing Proposed Project Facilities and depicting the major public infrastructure of the development, including roadways, detention basins, water lines, sewer lines, recycle water lines, utilities, storm drains and drainage facilities, treatment plants, power substations, community parks, community centers, fire stations; and other infrastructure serving area-wide populations.
The Proposed Project Facilities serve multiple subdivisions, and may need to be constructed in the initial phase of a particular Tract, or even before certain Tracts can be developed. The -20-
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detailed phasing of construction will be provided through the Master Tract and Subdivision Phasing Plans, and subject to Section 6.4.
6.5.4. Time for Map Submission. The Developer shall submit all applications for tentative, or vesting tentative, Master Tract Maps and, concurrently with each application for a Master Tract Map, the applications for tentative, or vesting tentative, Subdivision Maps thereof within five (5) years of the Effective Date for the City's review and approval.
6.6 Ten Year AnniversarvReview.
6.6.1. Generally. On or about each Tenth Anniversary of the Effective Date as provided herein, the City shall conduct the Ten Year Anniversary Review") the City and the Developer review to shall review the performance of this Agreement, and the development of the Project to see if the Development Goals have been met. The cost of the Annual Review shall be borne by the Developer and the Developer shall pay a reasonable deposit in an amount requested by City to pay for such review.
As part of each Ten Year Anniversary Review, sixty (60) days before each tenth anniversary of this Agreement, the Parties shall mutually meet and outline the review process, including (i) the information needed and formats, (ii) the schedule for performing the review, (iii) indentifying any needed consultants and studies, (iv) the adequacy of current DIFs and any anticipated need for changes, (v) any adjustments to needed public infrastructure, (vi) the estimated deposit needed to pay the City's costs of performing the review, and (vii) other matters necessary for the review.
The Developer shall deliver to the City all information reasonably requested by City (i) regarding the Developer's performance under this Agreement demonstrating that the Developer has complied in good faith with the terms of this Agreement and (ii) as required by this Agreement or the Existing Land Use Regulations. The Developer's submittal shall include a written explanation of any reasons why the Development Goals were or were not met, and any request for the modification of future Development Goals in the next 10 year period, and the reasons therefore.
The Developer shall submit its report on or before the Tenth Anniversary.
Thereafter, the Director shall prepare and submit to City Council a written report on the performance ofthe Project. The Developer's written response shall be included in the Director's report. The report and recommendations to Council shall be made within 45 days of the anniversary, and a public hearing shall be held thereon.
6.6.2. Adjustment to DIFs. As provided in Section 7.2.2, all Development hnpact Fees are subject to adjustment as put of the Ten Year Anniversary Review provided (i) the adjustment is based on the preparation a suitable analysis by an independent professional consultant experienced in performing such studies demonstrating the basis for the increase, (ii) the study is performed on a City-wide basis and applies to all development projects of 200 or more residential units, (iii) all infrastructure financed is included within the City's General Plan and capital projects master plan, (iv) the study demonstrates a reasonable nexus to -21-
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the Project and the fees are proportionate to the benefit received. The Development Impact Fees shall not contain any escalators but the studies justifYing the fees may use cost numbers which recognize the ten year horizon of each study.
6.6.3. Parties Can Alter Development Goals Objectives. The Development Goals for the next Ten Year Anniversary Review period as set forth in Section 6.2 may be modified with the mutual agreement of the Parties at the time of the hearing set forth in Section 6.6.1. Unless the Parties reach agreement for modification, the Development Goals will remain as provided therein.
6.6.4. No Other Changes to Development Plan. Other than the Development Impact Fee adjustments provided in Section 6.6.2 which may be unilaterally approved by City subject to performing the required studies, no other changes to the Development Approvals may be made by City without the consent of Developer. Nothing herein shall restrict the City's reservations of rights under Article II.
6.6.5. Extensions Due to Economic Distress.
6.6.5.1 Determination of Distress. As provided in Section 6.2.4, the Phases can be extended up to three (3) years due to the occurrence of an Economically Distressed Year(s). In any year in which Developer believes conditions exist to warrant Declaration of an Economically Distressed Year, within 30 days following the Anniversary Date, Developer shall submit his request therefore. Additionally, in support thereof, Developer shall provide City with a Report including the following: (i) a written analysis of County-wide data supporting the Declaration; (ii) publicly available reports concerning general market conditions affecting home building; (iii) analysis as to how general market conditions have affected the Project including demand, costs and fmancing; and (iv) forecasts concerning the next three (3) years. The Report is for informational purposes only and City shall not be permitted to disapprove the Declaration of Economic Distress if the data submitted meets the definition in Section 1.31. Within 30 days the City Manger shall review the Declaration and Report and determine if the data supports the declaration of an Economically Distressed Year. The City Manager's determination is appealable to the Council under Section 13.6.3, but not as a default thereunder.
6.6.5.2 Effect of Determination on 10-Year Review. Generally the effect of the declaration of an Economically Distressed Year shall also toll the performance of the 10 Year Armiversary Review. For example, if during any 10 year cycle, two years had been declared Economically Distressed, then the lOY ear Anniversary Review would be performed on or about the Armiversary Date of the 12th year, as otherwise provided in Section 6.6. The City, however, retains the right to elect to perform the DIP adjustments in accordance with Section
6.6.2 on the 10 Year Anniversary, or to defer the studies and do them in accordance with the general lOY ear Anniversary Review performed on the date to which the Phase has been extended due to the extensions for Economically Distressed Years pursuant to Section 6.2.4.
6.7 Failure to Satisfy Phasing Goals and Objectives. For reasons stated in Section 6.1, failure to achieve the Development Goals in any ten year period shall not be a default hereunder, but it shall cause the term of the Agreement to be shortened five (5) years. -22-
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Accordingly, a failure at the first Ten Year Anniversary Review shall cause the term of the Agreement in Section 3.1 to be reduced to 35 years, while a failure at the second review in year 20 (to achieve 3000 units) shall cause the Agreement to be shortened another five (5) years to 30 years (subject to any extension of the Term due to the occurrence of Economically Distressed Years as set forth in Section 3.4), but once the Term has been reduced, the lost time is not reinstated due to production of excess units in later phases.
The termination of this Agreement shall not alter the provisions of the Specific Plan concerning the zoning, density of development or any other regulatory provisions concerning the development of the Project, though the limitations provided in Article 4 on enactment of Future Land Use Regulations would be null and void.
6.8 Developer Incentives for Expedited Development.
6.8.1. Incentive for Early Development. The City wishes to establish new communities in the City and to encourage the early development of the Project, which, in light of current economic conditions, may require economic incentives to be provided to the Developer. Accordingly, the Developer shall be given a credit so that DIFs do not have to be paid for up to 500 residential units, if Commencement of Construction, as that term is defined in Section 6.3, occurs on or before the production dates in Section 6.8.4.
6.8.2. Conditions for Receipt of Credits. To receive the credits, the following conditions must be satisfied: (i) the units must be in Planning Areas 1 and 2 provided that, for good cause, City may approve building the units in alternative Planning Areas, (ii) each Tract containing residential units needs to be developed as a single unit with appropriate entry design features including walls, fountains, landscaping, signage and other features approved by City, (iii) the preparation of the commercial site in Planning Area 18 shall take place pursuant to Section 6.2.4, unless waived by City.
6.8.3. Fees Eligible for Credit. The DIFs eligible for credit are those identified as eligible in Exhibit "D."
6.8.4. Schedule. The credit shall be given for all units for which the Commencement of Construction, as that term is defmed in Section 6.3, occurs within five (5) years after the Effective Date.
6.9 City Provided Assistance. The City shall provide the Developer with each of the items set forth in Exhibit "E."
7. FEES, TAXES AND ASSESSMENTS.
7.1 Processing Fees. During the Term of this Agreement, the City may require the Developer to pay all Processing Fees applicable to the Development of the Project at the rates in effect on the applicable application date or as described in this Agreement unless a specific amount is stated herein.
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7.2 Development Impact Fees.
7.2.1. Limit on Exactions, Mitigation Measures, Conditions and Development Fees. Except for those fees expressly set forth in Sections 7.3 and 7.5 below, and for the reservations of authority in Article 11, the City shall charge and impose only those Exactions, mitigation measures and conditions, including, without limitation, dedications as are set forth in the Existing Land Use Regulations, and those fees relating to the Development of the Developer's Property as are expressly set forth in Exhibit "D" attached hereto, and no others.
Per Section 7.4 below, Park Fees shall not be imposed during the life of this Agreement. The Developer shall pay the stated amount of all other fees shown in Exhibit "D" for the first 10 years of the Term, and subsequently adjusted amounts determined in accordance with Section
6.6.2. 7.2.2. Development Impact Fees to be Established Based on Studies. The City will study and establish DIFs within one year of the effective Date for the following: revised City Traffic Control Facility Fee, revised Domestic Water Fee, new Recycled Water Fee and revised Sanitary Sewer Fee. The Developer shall be obligated to pay the revised fees and the revised DIFs shall be considered part of the Existing land Use Regulations. The initial DIFs shall be established in accordance with fee studies meeting the requirements of Section 6.6.2.
7.2.3. Adjustment at 10 Year Anniversary Review. The
Developer shall pay increased fees after the Ten Year Anniversary Review if those fees are adopted on a City wide basis after the preparation of, and are justified by, a suitable analysis demonstrating the basis for the increase in accordance with Section 6.6.2. The City shall be entitled to repeat the process of increasing the fees thereafter upon the same terms, during the Ten Year Anniversary Review in accordance with Section 6.6.2, throughout the Term of this Agreement.
7.2.4. Payment of Development Impact Fees. The Developer shall pay all Development Impact Fees with respect to Development commenced on the portion of the Developer's Property owned by the Developer. The Development Impact Fees set forth on Exhibit "D" attached hereto shall be paid at the issuance of the Certificate of Occupancy for each building. Unless otherwise specified herein, all other fees, including Processing Fees shall be paid when at issuance of building permits or otherwise when required by code.
7.3 Wastewater, Domestic and Reclaimed Water Facilities Development Impact Fees.
7.3.1. Wastewater Fees. The City levies two capital facilities fees related to wastewater: (i) a sewer collection fee; and (ii) a sewer frontage fee, but collectively such fees are referred to herein as sewer collection fees. The sewer collection fee shall be fixed in accordance with Section 7.2.1 above.
7.3.2. Construction of Wastewater Collection Infrastructure in Lieu of Fees. If any additions, improvements and/or upgrades to the City's wastewater collection system outside or within the boundaries of the Developer's Property are required in -24-
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connection with any Development of the Project, then with the mutual agreement of the parties, the Developer shall have the option to elect to construct some or all of such additions, improvements and/or upgrades at its sole cost and expense. The City shall develop the project specifications and shall undertake a design process to develop project plans and drawings meeting the City's specifications. The City may utilize the Developer to develop the plans and drawings if the design costs are competitive and Developer has retained competent design professionals who can timely perform the services. If, thereafter, the Developer wishes to construct the improvements, the Developer shall give City a fixed budget and construction schedule, while City obtains competitive bids. City may award the contract to the most competitive entity, considering price, fmancing, schedule and ability to perform. The contract may include liquidated damages provisions and other requirements to assure the timely and satisfactory completion of the project within budget. If performed by Developer, upon completion of such works of improvement, the Developer shall be entitled to offset the actual costs approved by City and incurred by it for the design, permitting, construction and installation of such works of improvement against any wastewater collection-related Development Impact Fees that may otherwise be payable in connection with future Development of the portion of the Developer's Property owned by the Developer.
7.3.3. Wastewater Treatment Capacity. The City shall use its best efforts to obtain the required permits and to construct the needed improvements to the City's wastewater treatment facilities in order to serve the Project as the need for additional facilities arises. The Developer shall include the construction of the wastewater treatment plant within the phasing plan developed pursuant to Section 6.5. The City estimates that a four year lead time is required with one year for design and one year for permitting with the remaining period needed for construction.
7.3.4. Wastewater. Domestic and Reclaimed Water Facilities and Fees. If any additions, improvements and/or upgrades to the City's water system, either domestic or reclaimed, outside or within the boundaries of the Developer's Property are required in connection with any Development of the Project, then with the City's approval, they may be undertaken by the Developer in accordance with the procedures in Section 7.3.2. Without limiting the generality of the foregoing, this includes the water tanks, pipelines and appurtenant facilities described in Section 8.5.
7.3.5. Recycled and Domestic Water Fees. Recycled and
domestic water developer impact fees shall be established in accordance with Section 7.2.1 above. City does not currently have Development Impact Fees for reclaimed water facilities or for domestic water facilities for the Project. Within a year after the Effective Date, the City shall conduct a study to determine the reasonable charge and the Developer's pro rata share of the cost of such improvements. When adopted by the Council, the fees shall be considered incorporated herein as Existing Land Use Regulations, and shall be subject to further review at the Ten Year Anniversary Review as provided in Section 6.2.2.
7.4 Park Fees.
7.4.1. Construction of Facilities. The Developer will be constructing, installing and improving the park and recreation facilities listed below, which are -25-
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deemed to be park, recreation and/or open space for the purpose of complying with the Municipal Code's park fee requirements. All parkland and open space shall be maintained by the POA, the Developer, the City, the Golf Course operator or such other entity as approved by the City. Provided that all required parks and recreation facilities are constructed and installed in accordance with the Specific Plan and this Agreement, the Project shall not be subject to the imposition of Park Fees by the City. The City acknowledges that the value of the land and improvements for the park, recreation and open space land and facilities exceeds the aggregate of all park fees which may be charged by the City pursuant to the Municipal Code in connection with the proposed Development of the entire Project. The Developer shall construct and install within the Project's boundaries the following park and recreation facilities:
7.4.1.1 254-acre Golf Course or Active Open Space, as set forth in Sections 5.3 above and 8.1.3 below;
7.4.1.2 22 publicly accessible parks (each ranging in size from approximately less than 1 acre to over 16 acres), equipped by Developer with typical neighborhood park facilities, which may include picnic facilities, shade structures, playgrounds, turf areas, and related facilities as further defmed in the Specific Plan and in accordance with the plans developed in Section 8.1;
7.4.1.3 Two private recreation centers, totaling
approximately eight acres, which will be gated and accessible only to the residents of the Project.
These centers may, but are not required to, include clubhouse facilities, restrooms, and other amenities as further defmed in the Specific Plan; and
7.4.1.4 108.4 acres of additional open space as described in the Specific Plan.
7.4.2. Community Recreation Center. The City shall also be entitled to construct a community recreation center in Planning Areas 35 or 39, on any park or open space site or on any site identified for a public facility, such as a fire station or waste water treatment plant, if that site is not used for the public facility. Once the site has been identified, the Developer shall grade it and stub utilities to site. The Developer's obligations are further described in Section 8.1.4.
7.5 Traffic Impact Mitigation.
7.5.1. Fees to be Established. The City has established a Development Impact Fee for the purpose of collecting funds to pay for the cost of constructing localized transportation improvements. At the request of the City, the Developer may initiate a study to expand upon the existing Traffic Control Facility Fee to include additional improvements not currently covered in the fee. The fee includes signal costs and minor roadway improvements. The Developer shall pay the applicable Traffic Control Facility Fee established by the City in effect on the Effective Date or at the time that the new revised fee is established, pursuant to Section 7.2.1 above.
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7.5 .2. Highland Springs Interim hnprovement Project. The Developer has initiated and will complete interim improvements to Highland Springs Avenue between Ramsey Street and the 1-10 Freeway. These improvements include, but are not limited to, the synchronization of traffic signals along Highland Springs Avenue, relocation of traffic signals, closings and relocation of Joshua Palmer Way and the restriping and repaving of Highland Springs Avenue. The City believes that the current traffic impacts are caused by the Developer's earlier project in Beaumont. The City shall use its best efforts to coordinate with the City of Beaumont an agreement to reimburse a portion of the improvements either through the appropriate transportation fee credits or other mechanism.
7.5.3. The Developer to Construct Traffic Improvements In Lieu of Paving City Fair Share Fees. In the event the Developer is required to construct traffic improvements in lieu of paying the City's fair share fees, City shall reimburse the Developer for the cost of the completed improvements through Reimbursement Agreements mandating that any project larger than 20 dwelling units pay a prorated share for benefits associated with completion of the Project.
8. DEDICATIONS AND CONVEYANCES OF PROPERTY INTERESTS
8.1 Park hnprovements.
8.1.1. Neighborhood/Community Parks. Prior to the construction of any parks, the Developer shall meet with both the Director and the Director of Parks and Recreation to review the provisions set forth in the Specific Plan outlining the facilities to be provided at each park and discuss the Developer's plans for near term construction of the parks.
Prior to development of each park, a detailed site plan consistent with the Specific Plan shall be prepared by the Developer and approved by the Director and the Parks and Recreation Commissions. The Developer shall complete the construction of neighborhood parks, Planning Areas 22 through 34, 62, 64 through 67 and 72, and the parks in the SCE easement, Planning Areas 36 through 38, no later than the issuance of the final Certificate of Occupancy for residential units within the adjacent subdivisions. Active use park improvements may not be placed in the SCE easement parks if the Director and Commissions believe there are issues of public health with electro magnetic radiation. A subdivision separated from a park by a street shall not be considered to be adjacent to the park. The Parties shall, mutually, determine what constitutes the adjacent subdivision if a park adjoins more than one subdivision. Upon completion of each neighborhood park, the City shall after the one-year maintenance period has expired, within 10 working days, develop [mal punch lists of items to be corrected prior to acceptance by the City. Upon correction of final punch list items by the Developer, the City shall accept the park within 30 days of the date of the final inspection.
8.1.2. POA Recreation Centers. The POA Recreation centers identified in Planning Areas 21 and 63 shall be constructed by the Developer in accordance with the Tract Phasing Plan pursuant to Section 6.5.
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8.1.3. GolfCourse/Active Open Space. The Golf Course shall be constructed at the sole and absolute discretion of the Developer. The determination to construct the Golf Course will take place within the first phase of Phase I of development due to the need to construct of the flood control improvements for Smith Creek. The Golf Course will be maintained by a Developer selected operator and open to the public. The operator may sell annual play memberships. If, as described in Section 5.4 above, the Golf Course is determined to be financially infeasible, the Developer shall notify the Planning Department in writing and the open space and drainage provisions described in the Specific Plan shall dictate the uses allowed on Planning Areas 35 and 39. The revised use of Planning Areas 35 and 39 shall be approved by both the Planning Commission (as the recommending body) and City Council prior to construction. The revised plan shall incorporate active recreational use including biking and pedestrian trails, turnouts for exercise, viewing and educational facilities, all linkable to other tracts, parks and open space, landscaping and providing full public access.
8.1.4. Community Recreation/Emergency Center. The City's Parks Master Plan indentifies the need in the Project for a community recreation center, and this is even more necessary if the Golf Course is not developed. This Center would be on an approximately six (6) acre parcel in Planning Area 39 in lieu of the golf clubhouse, or alternatively could be located as a part of a community park or other available site including in Plarming Area 71, or in lieu of the waste water treatment plant site in Planning Area II.
Depending on the site selected, the six (6) acres may be reduced so as to not adversely affect the development area of adjacent parcels from the development areas shown in the Specific Plan.
The Center is contemplated as a 30,000 sq. foot facility. The plan for the Center shall be included in the Park Master Plan and the site plan shall be processed at the time the chosen Planning Area is developed, subject to the Phasing Plans approved pursuant to Section 6.5, and provided that if the City chooses to put the Center in Planning Area II, it may be developed as part of Phase I provided that Developer shall satisfy the Phase I obligation by providing a developed Site, and need not fund the construction of the improvements if there are insufficient DIF's for credit. The Developer shall dedicate the site to City without charge. If developed as part of a park it shall be developed at the time required for parks in Section 8.1.1. The Center may include emergency operations and shelter components, and will also include appropriate landscaped grounds and facilities as specified in the Master Plan. The Center may be developed and constructed by Developer in the same manner as for the waste water treatment plant in Section 7.3.2, except as provided above.
8.2 Drainage Facilities. Planning Areas 19 and 71 are required areas of detention, recharge and conveyance of Project created and natural storm flows through the Project as set forth in Section 5.4 above. Planning Area 19 will consist of water quality basins, habitat restoration and flood conveyance facilities as well as the head works for the culvert underneath Wilson Street. This Planning Area may be ultimately transferred to the Flood Control District or City for acceptance and maintenance, but the Developer shall have the right to utilize it until such time as Development has fully or partially occurred for erosion control purposes. Planning Area 71 may be constructed in Phase I of the Project if required for the realignment of Smith Creek. This Planning Area may also consist of a large open reservoir, detention basin and recharge facility that may ultimately be transferred to the City or other appropriate body for acceptance and maintenance. The City shall have no obligation to accept -28- 01102/0012/108862.12
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the facilities if they primarily benefit the Project and are for flood control purposes but City may do so if the recharge facility and reservoir facility is designed for water recharge purposes and City determines in its sole and absolute discretion that they are needed to enhance the City's water supply.
8.3 Satellite Water Treatment Plant. The Director of Public Works Director shall determine the location of a two to five acre portion of Planning Area 11 for the onsite treatment of Project-related and other localized wastewater flows. The City shall have an Appraisal of Land Value determined within one (1) year of the signing of this Agreement. The City shall grant a credit equal to the fair market value determined by the appraisal to the City's waste water impact fee, when that fee is established, which credit may be used by the Developer on a unit by unit basis. Title to the site shall be transferred to the City after the site has been graded by the Developer and utilities are stubbed to the site.
8.4 Fire Station Site. The Specific Plan has identified a site in Planning Area 60 as the possible site for a fire station. The City shall have the an Appraisal of Land Value performed for a site of up to two (2) acres within one (1) year of the signing of this Agreement.
The City shall grant a credit equal to the fair market value determined by the appraisal to the City's Fire Facilities Development Fee which credit may be used by the Developer on a unit by unit basis. Title to the site shall be transferred to the City after the site has been graded by the Developer and utilities are stubbed to the site.
8.5 Water Tanks. The City's water facilities and improvements described in Section 7.3.4 include certain water tanks, pipelines, access roads and appurtenant facilities which largely serve the Development and must be located at specific locations and elevations to make the water system function correctly and maintain public health and safety. The water tanks shall be developed as follows:
A. A 500,000 gallon tank in Planning Area 73 at an high water elevation line of 3237 feet.
B. A 1.4 million gallon tank in Planning Area 73 at an high water elevation line of 3070 feet.
C. A 1.6 million gallon tank Planning Area 68 or 50 at an high water elevation line of 2822 feet.
Each tank will require a parcel from 1 to 1.5 acres in area and additional area for access, and shall be dedicated to City without charge after the site has been graded and stubbed out by Developer. The Developer may construct the improvements in accordance with Section 7.3.2 and receive fee credits to the water development impact fee on a unit per unit basis for the construction costs. The water tanks are considered part of the Proposed Project Facilities and shall be constructed in accordance with the Phasing Plans developed in accordance with Section
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9. PROCESSING OF REOUESTS AND APPLICATIONS: OTHER GOVERNMENT PERMITS.
9.1 Processing. In reviewing Future Development Approvals which are discretionary, the City may impose only those conditions, exactions, and restrictions which are allowed by the Development Plan and this Agreement. Upon satisfactory completion by the Developer of all required preliminary actions, meetings, submittal of required information and payment of appropriate processing fees, if any, the City shall promptly commence and diligently proceed to complete all required steps necessary for the implementation of this Agreement and the development by the Developer of the Project in accordance with the Existing Development Approvals. In this regard, the Developer, in a timely manner, will provide the City with all documents, applications, plans and other information necessary for the City to carry out its obligations hereunder and will cause the Developer's planners, engineers and all other consultants to submit in a timely manner all required materials and documents therefor. It is the express intent of this Agreement that the parties cooperate and diligently work to implement any zoning or other land use, site plan, subdivision, grading, building or other approvals for development of the Project in accordance with the Existing Development Approvals and those items set forth in Exhibit "E." Notwithstanding the foregoing, nothing contained herein shall be construed to require City to process Developer's Applications ahead of other projects in process in the City and City's obligations hereunder shall be subject to the City's workload and staffing at any given time.
9.2 Developer to Pay for Expedited Processing. If Developer elects, in its sole and absolute discretion, to request the City to incur overtime or additional consulting services to receive expedited processing by the City, the Developer shall pay all such overtime costs, charges or fees incurred by City for such expedited processing.
9.3 General Time Periods for Processing.
9.3.1. General Plan Review and Approval. The City shall provide comments within two weeks for all plan checks for required infrastructure, building, grading, both mass and finished, architectural, erosion control or any other required plan submittal and will not unduly extend amount of plan checks beyond three submittals provided that Developer's consultants are responsive. In the event that consensus between the City and the Developer regarding the content of the plans after the 3rd submittal can not be made, a meeting will be scheduled to discuss how to reconcile the differences.
9.3.2. Architectural Plan Submittal Process. The Developer shall submit architectural plans to the Planning Department for maximum two-week review of the entire plan set for each submittal for a maximum of three plan check reviews to ensure that they conform to the guidelines set forth in Specific Plan provided that Developer's consultants are responsive. In the event that consensus can not be made after the third plan check, a meeting will be coordinated with the plan checker, Planning Department and the Developer or the Developer's representative. The Planning Department, upon determining compliance with the guidelines set forth in the Specific Plan, shall approve the plans. This review is a ministerial action. Additional architectural enhancements that are above and beyond the design guidelines -30-
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will be implemented at the Developer's sole and absolute discretion but are subject to review by City if proposed.
9.4 Precise Grading/Plot Plan Revisions. In the event that the Developer wishes to revise house plan type or elevation on an approved plot plan or revised grading plan, City Engineering and Planning staff review and approval shall be done over the counter.
9.5 Additional Inspectors and Plan Checkers. In the event that the Developer requests it, the City shall permit overtime, including both additional days and hours, for inspections and plan checking at the Developer's expense. In the event that the City is unable to provide inspectors or plan checkers capable of meeting the demand for inspections or plan checks required for the Development of the Project in a timely fashion, the City shall, if requested to do so by the Developer and at the Developer's expense, employ additional private entities or persons to perform such services.
9.6 Tentative Subdivision Maps. The City shall extend through the Term hereof (pursuant to Government Code § 66452.6) all Master Tract Maps and all tentative and vesting tentative Subdivision Maps applied for by the Developer during the term of this Agreement and approved by the City in the future.
9.7 Multiple Final Subdivision Maps: The Developer may file as many fmal maps over a tentative Subdivision Map as it deems appropriate in its sole and absolute discretion.
9.8 Financing and Conveyance Maps: The Developer may have a Master Tract Map approved for the purpose of conveying portions of the Developer's Property to others and/or for the purpose of creating legal lots which may be used as security for loans to develop the Developer's Property and as provided in Section 6.5.1. Any such map shall not authorize any Development and shall not be subject to any conditions, Exactions or restrictions, other than monumentation and conditions which do not require the payment of money or the installation or construction of improvements.
9.9 Water Availabilitv. Any final subdivision map prepared for the Developer's Property, or any portion of the Developer's Property, shall comply with the provisions of Government Code § 66473.7.
9.10 Other Governmental Permits. The Developer shall apply in a timely manner for such other permits and approvals as may be required from other governmental or quasi-governmental agencies having jurisdiction over the Project as may be required for the development of, or provision of services to, the Project. The City shall cooperate with the Developer in its efforts to obtain such permits and approvals.
9.11 Public Agency Coordination. The City and Developer shall cooperate and use reasonable efforts in coordinating the implementation of the Development Plan with other public agencies, if any, having jurisdiction over the Property or the Project.
9.12 Annexation. This Agreement's effectiveness over land within the Developer's Property that is currently not within the City nor within its sphere of influence is subject to the annexation of that land into the City. If the land is annexed into the City, the terms -31-
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of this Agreement shall automatically apply to all portions of that land upon its annexation. ill the event that annexation of portions of the Developer's Property not currently within the City is not approved by LAFCO, or for any other reason is not annexed to the City, then any such portions shall be excluded from this Agreement. With the exception of land within Planning Area 43B, the City shall, subject to the negotiation of a tax allocation agreement with the County of Riverside acceptable to City, use its best efforts to expeditiously accomplish the annexation of those portions of the Developer's Property not within the City, or such portions thereof as may be approved by the developer, to the City.
10. AMENDMENT AND MODIFICATION OF DEVELOPMENT AGREEMENT.
10.1 Initiation of Amendment. Either Party may propose an amendment to this Agreement.
10.2 Procedure. Except as set forth in Section 10.4 below, the procedure for proposing and adopting an amendment to this Agreement shall be the same as the procedure required for entering into this Agreement in the first instance, and meet the requirements of the Development Agreement Statute § 65867.
10.3 Consent. Except as expressly provided in this Agreement, no amendment to all or any provision of this Agreement shall be effective unless set forth in writing and signed by duly authorized representatives of each of the Parties hereto and recorded in the Official Records of Riverside County.
10.4 Minor Modifications.
10.4.1. Flexibility Necessary. The provisions of this Agreement require a close degree of cooperation between the City and the Developer. Implementation of the Project may require minor modifications of the details of the Development Plan and affect the performance of the Parties under this Agreement. The anticipated refinements to the Project and the Development of the Developer's Property may demonstrate that clarifications to this Agreement and the Existing Land Use Regulations are appropriate with respect to the details of performance of the City and the Developer. The Parties desire to retain a certain degree of flexibility with respect to those items covered in general terms under this Agreement. Therefore, non-substantive and procedural modifications of the Development Plan shall not require modification of this Agreement.
10.4.2. Non-Substantive Changes. A modification will be deemed non-substantive and/or procedural if it does not result in a material change in fees, maximum residential density, maximum intensity of use, permitted uses, the maximum height and size of buildings, the reservation or dedication of land for public purposes, or the improvement and construction standards and specifications for the Project, including density transfers between phases. A "material change" is generally one which does not change the standard by ten percent (10%) or more. For example, for a height limit of 20 feet, a change of less than two feet is deemed non-material.
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10.4.3. Hearing Rights Protected. Notwithstanding the foregoing, City will process any change to this Development Agreement consistent with state law and will hold public hearings thereon if so required by state law and the parties expressly agree nothing herein is intended to deprive any party or person of due process of law.
10.5 Effect of Amendment to Development Agreement. Except as expressly set forth in any such amendment, an amendment to this Agreement will not alter, affect, impair, modifY, waive, or otherwise impact any other rights, duties, or obligations of either Party under this Agreement.
II. RESERVATIONS OF AUTHORITY.
11.1 Limitations, Reservations and Exceptions. Notwithstanding anything to the contrary set forth hereinabove, in addition to the Existing Land Use Regulations, only the following Land Use Regulations adopted by City hereafter shall apply to and govern the Development ofthe Developer's Property ("Reservation of Authority"):
11.1.1. Future Regulations. Future Land Use Regulations which (i) are not in conflict with the Existing Land Use Regulations, (ii) which would be applicable under the Development Agreement statute (§ 65866); (iii) if in conflict with the Existing Land Use Regulations but the application of which to the Development of the Developer's Property has been consented to in writing by Developer.
11.1.2. State and Federal Laws and Regulations. Where state or federal laws or regulations enacted after the Effective Date prevent or preclude compliance with one or more provisions of the Development Agreement, those provisions shall be modified, through revision or suspension, to the extent necessary to comply with such state or federal laws or regulations.
11.1.3. Public Health and SafetvlUniform Codes.
11.1.3.1 Adoption Automatic Regarding Uniform
Codes. This Agreement shall not prevent the City from adopting Future Land Use Regulations or amending Existing Regulations which are uniform codes and are based on recommendations of a multi-state professional organization and become applicable throughout the City, such as, but not limited to, the Uniform Building, Electrical, Plumbing, Mechanical, or Fire Codes.
11.1.3.2 Adoption Regarding Public Health and
SafetY/Uniform Codes. This Development Agreement shall not prevent the City from adopting Future Land Use Regulations respecting public health and safety to be applicable throughout the City which directly result from findings by the City that failure to adopt such Future Land Use Regulations would result in a condition injurious or detrimental to the public health and safety and that such Future General Regulations are the only reasonable means to correct or avoid such injurious or detrimental condition.
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11.1.3.3 Adoption Automatic Regarding Regional
Programs. This Agreement shall not prevent the City from adopting Future Land Use Regulations or amending Existing Regulations which are regional codes and are based on recommendations of a county or regional organization and become applicable throughout the region, such as Western Riverside Council of Governments.
11.1.4. Amendments to Codes for Local Conditions.
Notwithstanding the foregoing, no construction within the Project shall be subject to any provision in any of the subsequent Uniform Construction Codes, adopted by the State of California, but modified by the City to make it more restrictive than the provisions of previous Uniform Construction Codes of the City, notwithstanding the fact that the City has the authority to adopt such more restrictive provision pursuant to the California Building Standards Law, including, but not limited to, Health and Safety Code § 18941.5, unless such amendment applies City-wide. The City shall give Developer prior written notice of the proposed adoption of such amendment and Developer shall have the right to present its objections to the amendment.
11.2 Regulation by Other Public Agencies. It is acknowledged by the Parties that other public agencies not within the control of the City possess authority to regulate aspects of the Development of the Developer's Property separately from, or jointly with, the City and this Agreement does not limit the reasonable authority of such other public agencies.
11.3 Fees, Taxes and Assessments, Notwithstanding any other provision herein to the contrary, the City retains the right (i) to impose or modify Processing Fees and Development Impact Fees as provided in Article 7, (ii) to impose or modify business licensing or other fees pertaining to the operation of businesses, (iii) to impose or modify taxes and assessments which apply City-wide such as utility taxes, sales taxes and transient occupancy taxes, (iv) to impose or modify fees and charges for City services such as electrical utility charges, water rates, and sewer rates, (v) to impose or modify a community wide or area-wide assessment district which does not predominately apply to the Developer's Property, and (vi) to impose or modify any fees, taxes or assessments similar to the foregoing.
12. ANNUAL REVIEW.
12.1 Annual Monitoring Review. Following commencement of construction, the City and the Developer shall review the performance of this Agreement, and the Development of the Project, on or about each anniversary of the Effective Date (the "Annual Review"). The cost of the Annual Review shall be borne by Developer and Developer shall pay a reasonable deposit in an amount requested by City to pay for such review. As part of each Annual Review, within ten (10) days after each anniversary ofthis Agreement, the Developer shall deliver to the City all information reasonably requested by City (i) regarding the Developer's performance under this Agreement demonstrating that the Developer has complied in good faith with the terms of this Agreement and (ii) as required by the Existing Land Use Regulations.
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The Director shall prepare and submit to Developer and thereafter to City Council a written report on the performance of the Project, and identify any deficiencies. If any deficiencies are noted, or if requested by a Councilmember a public hearing shall be held before the City Council on the report to Council. The Developer's written response shall be included in the Director's report. The report to Council shall be made within 45 days of the anniversary date.
If the City determines that the Developer has substantially complied with the terms and conditions of this Agreement, the Annual Review shall be concluded. If the City finds and determines that the Developer has not substantially complied with the terms and conditions of this Agreement for the period under review, the City may declare a default by the Developer in accordance with Section 13.1.
12.2 Certificate of Compliance. If, at the conclusion of an Annual Review, the City finds that the Developer is in substantial compliance with this Agreement, the City shall, upon request by the Developer, issue an Estoppel Certificate to the Developer in the form shown on Exhibit "C."
12.3 Failure to Conduct Annual Review. The failure of the City to conduct the Annual Review shall not be a Developer Default unless Developer fails to cooperate in providing necessary information.
13. DEFAULT, REMEDIES AND TERMINATION.
13.1 Rights of Non-Defaulting Party after Default. The Parties acknowledge that both Parties shall have hereunder all legal and equitable remedies as provided by law following the occurrence of a Default or to enforce any covenant or agreement herein except as provided in Section 13.2 below. Before this Agreement may be terminated or action may be taken to obtain judicial reliefthe Party seeking relief ("Non-Defaulting Party") shall comply with the notice and cure provisions ofthis Article 13.
13.2 No Recovery for Monetary Damages. The nature of a development agreement under the Development Agreement Statute is a very unusual contract involving promoting a very large development project facing many complex issues including geologic, environmental, finance, market, regulatory and other constantly evolving factors over an extremely long time frame. The high level of uncertainty and risk involved justify the extraordinary commitments made to the Developer. However, the original persons representing the parties and approving the transaction are only likely to be involved with the Project for a limited time in comparison to the over-all life of the Project.
It is highly likely that misunderstandings will develop oyer time. Moreover, municipal budgets are extremely constrained, and a threat of recovery of damages against a municipal entity may pressure a municipality with limited resources to settle in a manner adverse to its interests and those of its citizens. Finally, the municipal entity represents the public welfare of the entire community, a community who cannot directly represent themselves. The City Council has come to believe that entering into a development agreement with the Developer vesting the Developer with the extraordinary rights provided herein is in the best interests of the community -35-
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through the Developer's active engagement with the community and open communications over several years. It is critical to the success of this Project that as inevitable obstacles are met, and the persons implementing the Project change over the 40 year time span of the Project, that close working relationships be maintained. Accordingly, in this Agreement, the rights of enforcement are limited as follows (i) the remedy of monetary damages is not available to either Party, and (ii) there is no shortcut to a mediation or arbitration procedure where a nonelected representative can arbitrarily determine land use development issues.
For purposes of enforcement, stated positively, the Parties shall have the equitable remedies of specific performance, injunctive and declaratory relief, or a mandate or other action determining that the City has exceed its authority, and similar remedies, other than recovery of monetary damages, to enforce their rights under this Agreement. The Parties shall have the right to recover their attorney fees and costs pursuant to Section 19.9 in such action. Moreover, the Developer shall have the right to a public hearing before the City Council before any default can be established under this Agreement, as provided in Section 13. 6.
13.3 Recovery of Monies Other Than Damages.
13.3.1. Restitution of hnproper Exactions. In the event any actions, whether monetary or through the provision of land, good or services, are imposed on the Development of the Developer's Property other than those authorized pursuant to this Agreement, the Developer shall be entitled to recover from City restitution of all such improperly assessed exactions, either in kind or the value in lieu of the exaction, together with interest thereon at the rate of the maximum rate provided by law per year from the date such exactions were provided to City to the date of restitution.
13.3.2. Monetary Default. In the event the Developer fails to perform any monetary obligation under this Agreement, City may sue for the payment of such sums to the extent due and payable. The Developer shall pay interest thereon at the lesser of: (i) ten percent (10%) per annum, or (ii) the maximum rate permitted by law, from and after the due date ofthe monetary obligation until payment is actually received by the City.
13.4 Compliance with the Claims Act. Compliance with this Article 13 shall constitute full compliance with the requirements of the Claims Act, Government Code § 900 et seq., pursuant to Government Code § 930.2 in any action brought by the Developer.
13.5 Notice and Opportunity to Cure. A Non-Defaulting Party in its discretion may elect to declare a Default under this Agreement in accordance with the procedures hereinafter set forth for any failure or breach of the other Party ("Defaulting Party") to perform any material duty or obligation of the Defaulting Party under the terms of this Agreement.
However, the Non-Defaulting Party must provide written notice to the Defaulting Party setting forth the nature of the breach or failure and the actions, if any, required by the Defaulting Party to cure such breach or failure. The Defaulting Party shall be deemed in Default under this Agreement, if the breach or failure can be cured, but the Defaulting Party has failed to take such actions and cure such default within thirty (30) days after the date of such notice or ten (10) days for monetary defaults (or such lesser time as may be specifically provided in this Agreement). -36-
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However, if such non-monetary Default cannot be cured within sucb tbirty (30) day period, and if and, as long as the Defaulting Party does each of the following:
I. Notifies the Non-Defaulting Party in writiug with a reasonable explanation as to the reasons the asserted default is not curable withiu the thirty (30) day period;
2. Notifies the Non-Defaulting Party of the Defaulting Party's proposed cause of action to cure the default;
3. Promptly commences to cure the default within the thirty (30) day period;
4. Makes periodic reports to the Non-Defaulting Party as to the progress of the program of cure;
5. Diligently prosecutes such cure to completion, and
Then the Defaulting Party shall not be deemed in breach ofthis Agreement.
Notwithstanding the foregoing, the Defaultiug Party shall be deemed in default under this Agreement if the breach or failure involves the payment of money but the Defaulting Party has failed to completely cure the monetary default within ten (10) days (or such lesser time as may be specifically provided in this Agreement) after the date of such notice.
13.6 Dispute Resolution.
13.6.1. Meet & Confer. Prior to any Party issuing a Default Notice hereunder, the Non-Defaulting Party shall inform the Defaulting Party either orally or iu writiug of the Default and request a meetiug to meet and confer over the alleged default and how it might be corrected. The Parties through their designated representatives shall meet withiu ten (10) days of the request therefore. The Parties shall meet as often as may be necessary to correct the conditions of default, but after the initial meeting either Party may also terminate the meet and confer process and proceed with the formal Default Notice.
13.6.2. Termination Notice. Upon recelVlng a Default Notice, should the Defaultiug Party fail to timely cure any default, or fail to diligently pursue such cure as prescribed above, the Nondefaulting Party may, in its discretion, provide the Defaulting Party with a written notice of intent to terminate this Agreement and other Agreements ("Termiuation Notice"). The Termiuation Notice shall state that the Nondefaulting Party will elect to terminate the Agreement and such other Agreements as the Non-defaulting Party elects to terminate within thirty (30) days and state the reasons therefor (including a copy of any specific charges of default) and a description of the evidence upon which the decision to terminate is based. Once the Termination Notice has been issued, the Non-defaulting Party's election to terminate Agreements will only be waived if (i) the Defaulting Party fully and completely cures all defaults prior to the date of termination, or (ii) pursuant to Section 13.6.3 below. -37-
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13.6.3. Hearing Opportunity Prior to Termination. Prior to any termination, a termination hearing shall be conducted as provided herein (,Termination Hearing"). The Termination Hearing shall be scheduled as an open public hearing item at a regularly-scheduled City Council meeting within thirty (30) days of the Termination Notice, subject to any legal requirements including but not limited to the Ralph M. Brown Act, Government Code Sections 54950-54963. At said Termination Hearing, the Defaulting Party shall have the right to present evidence to demonstrate that it is not in default and to rebut any evidence presented in favor of termination. Based upon substantial evidence presented at the Termination Hearing, the Council may, by adopted resolution, act as follows:
A. Decide to terminate this Agreement.
B. Determine that the alleged Defaulting Party is innocent of a default and, accordingly, dismiss the Termination Notice and any charges of default; or C. Impose conditions on a finding of default and a time for cure, such that Defaulting Party's fulfillment of said conditions will waive or cure any default.
Findings of a default or a condition of default must be based upon substantial evidence supporting the following three [mdings: (i) that a default in fact occurred and has continued to exist without timely cure, (ii) that the Non-Defaulting Party's performance has not excused the default; and (iii) that such default has, or will, cause a material breach of this Agreement and/or a substantial negative impact upon public health, safety and welfare, or the financial tenns established in the Agreement, or such other interests arising from the Project. Notwithstanding the foregoing, nothing herein shall vest authority in the City Council to unilaterally change any material provision of the Agreement.
Following the decision of the City Council, any Party dissatisfied with the decision may seek judicial relief consistent with this Article 13.
13.7 Waiver of Breach. By not challenging any Development Approval within 90 days of the action of City enacting the same, Developer shall be deemed to have waived any claim that any condition of approval is improper or that the action, as approved, constitutes a breach of the provisions of this Agreement. By recordation of a final map on all or any portion of the Developer's Property, the Developer shall be deemed to have waived any claim that any condition of approval is improper or that the action, as approved, constitutes a breach ofthe provisions ofthis Agreement.
13.8 Limitations on Defaults. Notwithstanding any provIsIOn in this Agreement to the contrary, a Default by one Owner shall not constitute a Default by an Owner of a portion of the Developer's Property, which is not the owner of the portion of the Developer's Property that is the subject of the Default (an "Innocent Owner"). Likewise, a Default by an Owner with respect to a Lot (or group of Lots) it owns or leases shall not constitute a Default by an Innocent Owner, nor shall the Default by another Owner of a portion of the Developer's Property not owned by an Innocent Owner constitute a Default of the Innocent Owner.
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Default by another Owner or any Default of any other Owner, (ii) an Innocent Owner shall have no liability to the City for, or with respect to, any Default by any other Owner, and (iii) the City's election to terminate this Agreement as a result of a Default by an Owner shall not result in a termination of this Agreement with respect to either (x) any portion of the Developer's Property not owned by such Owner or (y) those Lots owned or leased by an Innocent Owner until such time that this Agreement would otherwise terminate in accordance with its terms.
13.9 Venue. In the event of any judicial action, venue shall be in the Superior Court of Riverside County.
14. ASSIGNMENT.
14.1 Right to Assign.
14.1.1. General. Neither Party shall assign (as hereinafter defined) or transfer (as hereinafter defined) its interests, rights or obligations under this Agreement without the prior written consent of the other, which consent shall not be unreasonably withheld or delayed. The term "assignment" as used in this Agreement shall include successors-in-interest to the City that may be created by operation of law. Notwithstanding the foregoing, the City shall have the right to sell, assign or transfer its interest in any real property dedicated or transferred to the City pursuant to the terms of this Agreement or to another public agency.
As used in this Section, the term "transfer" shall include the transfer to any person or group of persons acting in concert of more than seventy percent (70%) of the present equity ownership and/or more than fifty percent (50%) of the voting control of the Developer Gointly and severally referred to herein as the "Trigger Percentages") or any general partner of the Developer in the aggregate, taking all transfers into account on a cumulative basis, except transfers of such ownership or control interest between members of the same immediate family, or transfers to a trust, testamentary or otherwise, in which the beneficiaries are limited to members of the transferor's immediate family. A transfer of interests (on a cumulative basis) in the equity ownership and/or voting control of the Developer in amounts less than the Trigger Percentages shall not constitute a transfer subject to the restrictions set forth herein. In the event the Developer or any general partner of the Developer or its successor is a corporation or trust, such transfer shall refer to the transfer of the issued and outstanding capital stock of the Developer, or of beneficial interests of such trust; in the event that Developer or any general partner of the Developer is a limited or general partnership, such transfer shall refer to the transfer of more than the Trigger Percentages in the limited or general partnership interest; in the event that the Developer or any general partner is a joint venture, such transfer shall refer to the transfer of more than the Trigger Percentages of such joint venture partner, taking all transfers into account on a cumulative basis.
The Developer shall not transfer this Agreement or any of the Developer's rights hereunder, or any interest in the Developer's Property or in the improvements thereon, directly or indirectly, voluntarily or by operation of law, except as provided below, without the prior written approval of City, and if so purported to be transferred, the same shall be null and void. In considering whether it will grant approval to any transfer by Developer, which transfer requires City approval, City shall consider factors such as (i) the financial strength and capability of the -39-
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proposed transferee to perform the obligations hereunder; and (ii) the proposed transferee's experience and expertise in the planning, financing, development, ownership, and operation of similar projects. In no event shall the City's approval of any transfer be unreasonably withheld or delayed.
In addition, no attempted assignment of any of the Developer's obligations hereunder shall be effective unless and until the successor party signs and delivers to the City an assumption agreement, in a form approved by the City, assuming such obligations. No consent or approval by City of any transfer requiring the City's approval shall constitute a further waiver of the provision ofthis Section 14.1.1 and, furthermore, the City's consent to a transfer shall not be deemed to release the Developer of liability for performance under this Agreement unless such release is specific and in writing executed by City. In no event shall the City's release of the Developer from liability under this Agreement upon a transfer be unreasonably withheld or delayed.
Notwithstanding any provision of this Agreement to the contrary, City approval of a Transfer or Assignment of any portion of the Developer's Property under this Agreement shall not be required in connection with any of the following provided that such person or entity transferee or assignee assumes in writing all of the Developer's obligations under this Agreement and notifies the City in writing of the same:
A. Any mortgage, deed of trust, sale/lease-back, or other form of conveyance for financing and any resulting foreclosure therefrom.
B. The granting of easements or dedications to any appropriate governmental agency or utility or permits to facilitate the development of the Developer's Property.
C. A sale or transfer resulting from, or in connection with, a reorganization as contemplated by the provisions of the Internal Revenue Code of 1986, as amended or otherwise, in which the ownership interests of a corporation are assigned directly or by operation of law to a person or persons, firm or corporation which acquires the control of the voting capital stock of such corporation or all or substantially all of the assets of such corporation.
D. A sale or transfer of less than the Trigger Percentages between members of the same immediate family, or transfers to a trust, testamentary or otherwise, in which the beneficiaries consist solely of immediate family members of the trustor or transfers to a corporation or partnership in which the immediate family members or shareholders of the transferor who owns at least ten percent (10%) of the present equity ownership and/or at least fifty percent (50%) of the voting control of Developer.
E. A transfer of common areas to a POA.
F. Any transfer to an entity or entities in which the Developer retains a minimum of 51 % of the ownership or beneficial interest and retains management and control of the transferee entity or entities.
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G. Any transfer of interests in Owner for estate planning purposes to the heirs of Owner, provided that the heirs retain a minimum of 51% of the ownership or beneficial interest of the transferor entity and retain management and control of the transferee entity.
H. Any transfer of interest to a Pre-Qualified Buyer.
14.1.2. Subject to Tenus of Agreement. Following any such Transfer or Assignment of any of the rights and interests of the Developer under this Agreement, in accordance with Section 14.1.1 above, the exercise, use and enjoyment of such rights and interests shall continue to be subject to the tenus of this Agreement to the same extent as if the assignee or transferee were the Developer.
14.1.3. Release of Developer. Upon the written consent of the City to the complete assignment of this Agreement or the transfer of a portion of the Developer's Property and the express written assumption of the assigned obligations of the Developer under this Agreement by the assignee, the Developer shall be relieved of its legal duty from the assigned obligations under this Agreement with respect to the portion of the Developer's Property transferred, except to the extent the Developer is in default under the tenus of this Agreement prior to the transfer.
14.1.4. No Approval of Terms of Loan by City. Notwithstanding anything to the contrary set forth herein with regards to the approval by the City of hypothecation, encumbrances or mortgages, the City shall only have the right to approve the identity of the Developer's lender, which approval will not be unreasonably withheld, taking into consideration such lender's financial strength, reputation, and other relevant factors. The City shall not have any right to approve any of the terms or conditions of the Developer's financing arrangements with third party lenders.
14.2 Sale to Pre-Oualified Buyer. Nothing herein shall prevent the Developer from selling a portion of the Developer's Property for residential development subject to any approved final subdivision map to a Pre-Qualified Buyer for construction of houses in accordance with the tenus of this Agreement provided that the transferee must enter into appropriate agreements with the City to assure that all Development restrictions hereunder will be met.
14.3 Tenuination of Agreement With Respect to Individual Parcels Upon Sale to Public. Notwithstanding any provisions of this Agreement to the contrary, this Agreement shall terminate as to any Lot which has been finally subdivided and improved with all required public improvements and which is individually (and not in "bulk") sold to an owneruser and thereupon, and without the execution or recordation of any further document or instrument, such Lot shall be released from and no longer be subject to the provisions of this Agreement; provided, however, that CC&R's are placed of record in accordance with Section
14.4 below.
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14.4 Declaration of Covenants. Conditions and Restrictions. Prior to the transfer of any portion of the Project to a third party, the Developer shall submit a proposed form of Declaration of Covenants, Conditions and Restrictions to be recorded against the applicable subdivision to the City for its review and approval ("CC&RS"). The CC&RS must be recorded prior to issuance of certificates of occupancy, and Developer shall pay City's review costs. It is anticipated that the CC&RS will contain, among other things, protective covenants to protect and preserve the integrity and value in the subdivision, including but not limited to use restrictions, maintenance covenants, EIR mitigation measures, restrictions under this Development Agreement which will continue to apply to the subdivision, covenants for construction and completion of the improvements and a provision giving the City the right to enforce the CC&RS, including the right to recover its enforcement costs if there is noncompliance following notice and the opportunity to cure.
15. RELEASES AND INDEMNITIES.
15.1 The City's Release As To Actions Prior To Effective Date. The City forever discharges, releases and expressly waives as against the Developer and its attorneys and employees any and all claims, liens, demands, causes of action, excuses for nonperformance (including but not limited to claims and/or defenses of unenforceability, lack of consideration, and/or violation of public policy), losses, damages, and liabilities, known or unknown, suspected or unsuspected, liquidated or unliquidated, fixed or contingent, based in contract, tort, or other theories of direct and/or of agency liability (including but not limited to principles of respondent superior) that it has now or has had in the past, arising out of or relating to this Agreement and the development agreement approved in 1993, and the currently existing land use plans for the Developer's Property or any portion thereof.
15.2 The Developer's Release As To Actions Prior To Effective Date. The Developer forever discharges, releases and expressly waives as against the City and its respective councils, boards, commissions, officers, attorneys and employees any and all claims, liens, demands, causes of action, excuses for nonperformance (including but not limited to claims and/or defenses of unenforceability, lack of consideration, and/or violation of public policy), losses, damages, and liabilities, known or unknown, suspected or unsuspected, liquidated or unliquidated, fixed or contingent, based in contract, tort or other theories of direct and/or of agency liability (including but not limited to principles of respondent superior) that they have now or have had in the past, arising out of or relating to this Agreement and the development agreement approved in 1993, and the currently existing land use plans for the Developer's Property or any portion thereof.
15.3 Third-Party Litigation.
15.3.1. Non-liability of City. As set forth above, the City has determined that this Agreement is consistent with the General Plan and that the General Plan and Development Approvals meets all of the legal requirements of State law. The Parties acknowledge that:
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A. In the future there may be challenges to legality, validity and adequacy of the General Plan, the Development Approvals and/or this Agreement; and B. If successful, such challenges could delay or prevent the performance of this Agreement and the development ofthe Developer's Property.
In addition to the other provisions of this Agreement, including, without limitation, the provisions of this Section 15, the City shall have no liability under this Agreement for any failure of the City to perform under this Agreement or the inability of the Developer to develop the Developer's Property as contemplated by the Development Plan or this Agreement as the result of a judicial determination that on the Effective Date, or at any time thereafter, the General Plan, the Land Use Regulations, the Development Approvals, this Agreement, or portions thereof, are invalid or inadequate or not in compliance with law.
15.3.2. Revision of Land Use Restrictions. If, for any reason, the General Plan, Land Use Regulations, Development Approvals, this Agreement or any part thereof is hereafter judicially determined, as provided above, to not be in compliance with the State or Federal Constitution, laws or regulations and, if such noncompliance can be cured by an appropriate amendment thereof otherwise conforming to the provisions of this Agreement, then this Agreement shall remain in full force and effect to the extent permitted by law. The Development Plan, Development Approvals and this Agreement shall be amended, as necessary, in order to comply with such judicial decision.
15.3.3. Participation in Litigation: Indemnity. The Developer shall indemnifY the City and its elected boards, commissions, officers, agents and employees and will hold and save them and each of them harmless from any and all actions, suites, claims, liabilities, losses, damages, penalties, obligations and expenses (including but not limited to attorneys' fees and costs) against the City and/or Agent for any such Claims or Litigation (as defined in Section
1.10) and shall be responsible for any judgment arising therefrom. The City shall provide the Developer with notice of the pendency of such action and shall request that the Developer defend such action. The Developer may utilize the City Attorney's office or use legal counsel of its choosing, but shall reimburse the City for any necessary legal cost incurred by City. The Developer shall provide a deposit in the amount of 150% of the City's estimate, in its sole and absolute discretion, of the cost of litigation, including the cost of any award of attorneys fees, and shall make additional deposits as requested by City to keep the deposit at such level. The City may ask for further security in the form of a deed of trust to land of equivalent value. If the Developer fails to provide or maintain the deposit, the City may abandon the action and the Developer shall pay all costs resulting therefrom and City shall have no liability to the Developer. The Developer's obligation to pay the cost of the action, including judgment, shall extend until judgment. After judgment in a trial court, the parties must mutually agree as to whether any appeal will be taken or defended. The Developer shall have the right, within the first 30 days of the service of the complaint, in its sole and absolute discretion, to determine that it does not want to defend any litigation attacking this Agreement or the Development Approvals in which case the City shall allow the Developer to settle the litigation on whatever terms the Developer determines, in its sole and absolute discretion, but Developer shall confer with City before acting and cannot bind City. In that event, the Developer shall be liable for any costs incurred by the City up to the date of settlement but shall have no further obligation to the City -43-
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beyond the payment of those costs. In the event of an appeal, or a settlement offer, the Parties shaH confer in good faith as to how to proceed. Notwithstanding the Developer's indemnity for claims and litigation, the City retains the right to settle any litigation brought against it in its sole and absolute discretion and the Developer shaH remain liable except as foHows: (i) the settlement would reduce the scope of the Project by 10% or more, and (ii) the Developer opposes the settlement. In such case the City may still settle the litigation but shaH then be responsible for its own litigation expense but shaH bear no other liability to the Developer.
15.4 Hold Harmless: Developer's Construction and Other Activities. The Developer shaH defend, save and hold the City and its elected and appointed boards, commissions, officers, agents, and employees harmless from any and aH claims, costs (including attorneys' fees) and liability for any damages, personal injury or death, which may arise, directly or indirectly, from the Developer's or the Developer's agents, contractors, subcontractors, agents, or employees' operations under this Agreement, whether such operations be by the Developer or by any of the Developer's agents, contractors or subcontractors or by anyone or more persons directly or indirectly employed by or acting as agent for the Developer or any of the Developer's agents, contractors or subcontractors. Nothing herein is intended to make the Developer liable for the acts of the City's officers, employees, agents, contractors of subcontractors.
15.5 Survival ofIndemnity Obligations. AH indemnity provisions set forth in this Agreement shaH survive termination of this Agreement for any reason other than the City's Default.
16. EFFECT OF AGREEMENT ON TITLE.
16.1 Covenant Run with the Land. Subject to the provisions of Sections 14 and 18 and pursuant to the Development Agreement Statute (§ 65868.5):
A. AH of the provisions, agreements, rights, powers, standards, terms, covenants and obligations contained in this Agreement shaH be binding upon the parties and their respective heirs, successors (by merger, consolidation, or otherwise) and assigns, devisees, administrators, representatives, lessees, and aH other persons acquiring any rights or interests in the Developer's Property, or any portion thereof, whether by operation of laws or in any manner whatsoever and shaH inure to the benefit of the parties and their respective heirs, successors (by merger, consolidation or otherwise) and assigns; B. AH of the provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land pursuant to applicable law; and C. Each covenant to do or refrain from doing some act on the Developer's Property hereunder (i) is for the benefit of and is a burden upon every portion of the Developer's Property, (ii) runs with such lands, and (iii) is binding upon each party and each successive owner during its ownership of such properties or any portion thereof, and each person having any interest therein derived in any manner through any owner of such lands, or any portion thereof, and each other person succeeding to an interest in such lands.
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17. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION.
17.1 Non-liability of City Officers and Employees. No official, agent, contractor, or employee of the City shall be personally liable to the Developer, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to the Developer or to its successor, or for breach of any obligation of the terms of this Agreement.
17.2 Conflict of Interest. No officer or employee of the City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to this Agreement which affects the financial interest of any corporation, partnership or association in which he or she is, directly or indirectly, interested, in violation of any state statute or regulation.
17.3 Covenant Against Discrimination. The Developer covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the performance of this Agreement. The Developer shall take affirmative action to insure that employees are treated during employment without regard to their race, color, creed religion, sex, marital status, national origin or ancestry.
18. MORTGAGEE PROTECTION.
18.1 Definitions. As used in this Section, the term "mortgage" shall include any mortgage, whether a leasehold mortgage or otherwise, deed of trust, or other security interest, or sale and lease-back, or any other form of conveyance for financing. The term "holder" shall include the holder of any such mortgage, deed of trust, or other security interest, or the lessor under a lease-back, or the grantee under any other conveyance for financing.
18.2 No Encumbrances Except Mortgages to Finance the Project.
Notwithstanding the restrictions on transfer in Section 14, mortgages required for any reasonable method of financing of the construction of the improvements are permitted but only for the following: (i) for the purpose of securing loans of funds used or to be used for fmancing the acquisition of a separate lot(s) or parcel(s), (ii) for the construction of improvements thereon, in payment of interest and other financing costs, and (iii) for any other expenditures necessary and appropriate to develop the Project under this Agreement, or for restructuring or refinancing any for same. No map permitted herein, even if for financing purposes, shall permit financing for other than purposes of developing the Project solely. The Developer (or any entity permitted to acquire title under this Agreement) shall notity the City in advance of any future mortgage or any extensions or modifications thereof. Any lender which has so notified the City shall not be bound by any amendment, implementation, or modification to this Agreement without such lender giving its prior written consent thereto. In any event, the Developer shall promptly notity the City of any mortgage, encumbrance, or lien that has been created or attached thereto prior to completion of construction, whether by voluntary act of the Developer or otherwise. -45-
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18.3 Developer's Breach Not Defeat Mortgage Lien. The Developer's breach of any of the covenants or restrictions contained in this Agreement shall not defeat or render void the lien of any mortgage made in good faith and for value but, unless otherwise provided herein, the terms, conditions, covenants, restrictions, easements, and reservations of this Agreement shall be binding and effective against the holder of any such mortgage whose interest is acquired by foreclosure, trustee's sale or otherwise.
18.4 Holder Not Obligated to Construct or Complete hnprovements. The holder of any mortgage shall in no way be obligated by the provisions of this Agreement to construct or complete the improvements or to guarantee such construction or completion.
Nothing in this Agreement shall be deemed or construed to permit or authorize any such holder to devote the Project or any portion thereof to any uses, or to construct any improvements thereon, other than those uses or improvements provided for or authorized by this Agreement.
18.5 Notice of Default to Mortgagee. Whenever the City shall deliver any notice or demand to the Developer with respect to any breach or default by the Developer hereunder, the City shall at the same time deliver a copy of such notice or demand to each holder of record of any mortgage who has previously made a written request to the City therefor, or to the representative of such lender as may be identified in such a written request by the lender. No notice of default shall be effective as to the holder unless such notice is given.
18.6 Right to Cure. Each holder (insofar as the rights of City are concerned) shall have the right, at its option, within ninety (90) days after the receipt of the notice, and one hundred twenty (120) days after the Developer's cure rights have expired, whichever is later, to:
A. Obtain possession, if necessary, and to commence and diligently pursue the cure until the same is completed, and
B. Add the cost of said cure to the security interest debt and the lien or obligation on its security interest;
provided that, in the case of a default which cannot with diligence be remedied or cured within such cure periods referenced above in this Section 18.6, such holder shall have additional time as reasonably necessary to remedy or cure such default.
In the event there is more than one such holder, the right to cure or remedy a breach or default of the Developer under this Section shall be exercised by the holder first in priority or as the holders may otherwise agree among themselves, but there shall be only one exercise of such right to cure and remedy a breach or default of the Developer under this Section.
No holder shall undertake or continue the construction or completion of the improvements (beyond the extent necessary to preserve or protect the improvements or construction already made) without first having expressly assumed the Developer's obligations to the City by written agreement satisfactory to City with respect to the Project or any portion thereof in which the holder has an interest. The holder must agree to complete, in the manner required by this Agreement, the improvements to which the lien or title of such holder relates, and submit evidence satisfactory to the City that it has the qualifications and financial responsibility necessary to perform such obligations.
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18.7 City's Rights upon Failure of Holder to Complete Improvements. In any case where one hundred eighty (180) days after default by tbe Developer in completion of construction of improvements under this Agreement, the holder of any mortgage creating a lien or encumbrance upon the Project or portion thereof has not exercised the option to construct afforded in this Section or, if it has exercised such option and has not proceeded diligently with construction, the City may, after ninety (90) days' notice to such holder and if such holder has not exercised such option to construct within said ninety (90) day period, purchase the mortgage, upon payment to the holder of an amount equal to the sum of the following:
A. The unpaid mortgage, debt plus any accrued and unpaid interest (less all appropriate credits, including those resulting from collection and application of rentals and other income received during foreclosure proceedings, if any);
B. All expenses, incurred by the holder with respect to foreclosure, if any;
C. The net expenses (exclusive of general overhead), incurred by the holder as a direct result of the ownership or management of the applicable portion of the Project, such as insurance premiums or real estate taxes, if any; D. The costs of any improvements made by such holder, if any; and E. An amount equivalent to the interest that would have accrued on the aggregate of such amounts had all such amounts become part of the mortgage debt and such debt had continued in existence to the date of payment by the City.
If the City has not purchased the mortgage within ninety (90) days of the expiration of the ninety (90) days referred to above, then the right ofthe City to purchase shall expire.
In the event that the holder does not exercise its option to construct afforded in this Section, and if the City elects not to purchase the mortgage of holder, upon written request by the holder to the City, the City shall use reasonable efforts to assist the holder in selling the holder's interest to a qualified and responsible party or parties (as determined by City), who shall assume the obligations of making or completing the improvements required to be constructed by the Developer, or such other improvements in their stead as shall be satisfactory to the City. The proceeds of such a sale shall be applied first to the holder of those items specified in subparagraphs A through E hereinabove and any balance remaining thereafter shall be applied as follows:
(1) First, to reimburse the City for all costs and expenses actually and reasonably incurred by the City, including, but not limited to, payroll expenses, management expenses, legal expenses, and others;
(2) Second, to reimburse the City for all payments made by City to discharge any other encumbrances or liens on the applicable portion of the Project or to discharge or prevent from attaching or being made any subsequent encumbrances or liens due to obligations, defaults, or acts of the Developer, its successors or transferees; -47-
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(3) Third, to reimburse the City for all costs and expenses actually and reasonably incurred by the City, in connection with its efforts assisting the holder in selling the holder's interest in accordance with this Section; and
(4) Fourth, any balance remaining thereafter shall be paid to the Developer.
18.8 Right of City to Cure Mortgage Default. In the event of a default or breach by the Developer (or entity permitted to acquire title under this Section) prior to completion of the Project or the applicable portion thereof, and the holder of any such mortgage has not exercised its option to complete the development, the City may cure the default prior to completion of any foreclosure. In such event, the City shall be entitled to reimbursement from the Developer or other entity of all costs and expenses incurred by the City in curing the default, to the extent permitted by law, as if such holder initiated such claim for reimbursement, including legal costs and attorneys' fees, which right of reimbursement shall be secured by a lien upon the applicable portion of the Project to the extent of such costs and disbursements. Any such lien shall be subject to:
A. Any Mortgage; and
B. Any rights or interests provided in this Agreement for the protection of the holders of such Mortgages;
provided that nothing herein shall be deemed to impose upon the City any affirmative obligations (by the payment of money, construction or otherwise) with respect to the Project in the event of its enforcement of its lien.
18.9 Right of the City to Satisfy Other Liens on the Developer's Property After Conveyance of Title. After the conveyance oftitle and prior to completion of construction and development, and after the Developer has had a reasonable time to challenge, cure, or satisfY any liens or encumbrances on the Project, the City shall have the right to satisfY any such liens or encumbrances; provided, however, that nothing in this Agreement shall require the Developer to payor make provision for the payment of any tax, assessment, lien or charge so long as the Developer in good faith shall contest the validity or amount thereof, and so long as such delay in payment shall not subject the Project or any portion thereof to forfeiture or sale.
19. MISCELLANOUS.
19.1 Estoppel Certificates. Either Party (or a Mortgagee under Section 18) may at any time deliver written notice to the other Party requesting an Estoppel Certificate stating:
A. The Agreement is in full force and effect and is a binding obligation ofthe Parties;
B. The Agreement has not been amended or modified either orally or in writing or, if so amended, identifYing the amendments; and C. There are no existing defaults under the Agreement to the actual knowledge ofthe party signing the Estoppel Certificate. -48-
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A Party receiving a request for an Estoppel Certificate shall provide a signed certificate to the requesting Party within thirty (30) days after receipt of the request. The Planning Director may sign Estoppel Certificates on behalf of the City. An Estoppel Certificate may be relied on by assignees and Mortgagees. The Estoppel Certificate shall be substantially in the same form as Exhibit "C."
19.2 Force Majeure. The time within which the Developer or the City shall be required to perform any act under this Agreement shall be extended by a period of time equal to the number of days during which performance of such act is delayed due to war, insurrection, strikes, lock-outs, riots, floods, earthquakes, fires, casualties, natural disasters, acts of God, acts of the public enemy, epidemics, quarantine restrictions, freight embargoes, governmental restrictions on priority, initiative or referendum, moratoria, processing with governmental agencies other than the City, unusually severe weather, third party litigation as described in Section 15.3 above, or any other similar causes beyond the control or without the fault of the Party claiming an extension oftirne to perform. An extension of time for any such cause sball be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause, if written notice by the party claiming such extension is sent to the other Party within thirty (30) days of knowledge of the commencement of the cause. Any act or failure to act on the part of a Party shall not excuse performance by that Party.
19.3 Interpretation.
19.3.1. Construction of Development Agreement. The language of this Agreement shall be constrned as a whole and given its fair meaning. The captions of the sections and subsections are for convenience only and shaH not influence constrnction. This Agreement shall be governed by the laws of the State of California. This Agreement shall not be deemed to constitute the surrender or abrogation of the City's governmental powers over the Developer's Property.
19.3.2. Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and this Agreement supersedes all previous negotiations, discussions, and agreements between the Parties. No parol evidence of any prior or other agreement shall be permitted to contradict or vary the terms of this Agreement.
19.3.3. Recitals. The recitals in this Agreement constitute part of this Agreement and each Party shall be entitled to rely on the truth and accuracy of each recital as an inducement to enter into this Agreement.
19.3.4. Mutual Covenants. The covenants contained herein are mutual covenants and also constitute conditions to the concurrent or subsequent performance by the Party benefitted thereby of the covenants to be performed hereunder by such benefitted Party.
19.4 Severability. If any provision of this Agreement is adjudged invalid, void or unenforceable, that provision shall not affect, impair, or invalidate any other provision, unless such judgment affects a material part of this Agreement in which case the parties shall comply with the procedures set forth in Section 15.3.3 above. -49-
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19.5 Joint and Several Obligations. All obligations and liabilities of the Developer hereunder shall be joint and several among the obligees.
19.6 No Third Party Beneficiaries. The only Parties to this Agreement are the Developer and the City and their successor and assigns. There are no third party beneficiaries and this Agreement is not intended, and shall not be construed, to benefit or be enforceable by any other person whatsoever.
19.7 Notice.
19.7.1. To Developer. Any notice required or permitted to be given by the City to the the Developer under this Development Agreement shall be in writing and delivered personally to the Developer or mailed, with postage fully prepaid, registered or certified mail, return receipt requested, addressed as follows:
Pardee Homes.
10880 Wilshire Boulevard, Suite 1900
Los Angeles, CA 90024
Attention: Legal department
With a copy to:
Kenneth B. Bley, Esq.
Cox, Castle & Nicholson LLP
2049 Century Park East, 28th Floor
Los Angeles, CA 90067-3284
or such other address as the Developer may designate in writing to the City.
19.7.2. To the City. Any notice required or permitted to be given by the Developer to the City under this Development Agreement shall be in writing and delivered personally to the City Clerk or mailed with postage fully prepaid, registered or certified mail, return receipt requested, addressed as follows:
City of Banning
99 E. Ramsey Street
Banning, CA 92220
Attention: Planning Director
With a copy to:
David J. Aleshire, Esq., City Attorney
Aleshire & Wynder, LLP
18881 Von Karman Avenue, Suite 400
Irvine, California 92612
or such other address as the City may designate in writing to the Developer. -50-
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Notices provided pursuant to this Section shall be deemed received at the date of delivery as shown on the affidavit of personal service or the Postal Service receipt.
19.8 Relationship of Parties. It is specifically understood and acknowledged by the Parties that the Project is a private development, that neither Party is acting as the agent of the other in any respect hereunder, and that each Party is an independent contracting entity with respect to the terms, covenants, and conditions contained in this Agreement. The only relationship between the City and the Developer is that of a government entity regulating the development of private property and the owner of such private property.
19.9 Attorney's Fees. If either Party to this Agreement is required to initiate or defend litigation against the other Party, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorney's fees. Attorney's fees shall include attorney's fees on any appeal, and, in addition, a Party entitled to attorney's fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to a final judgment.
19.10 Further Actions and Instruments. Each of the Parties shall cooperate with and provide reasonable assistance to the other to the extent necessary to implement this Agreement. Upon the request of either Party at any time, the other Party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary to implement this Agreement or to evidence or consnmmate the transactions contemplated by this Agreement.
19.11 Time of Essence. Time is of the essence in:
A. The performance of the provisions of this Agreement as to which time is an element; and
B. The resolution of any dispute which may arise concerning the obligations of the Developer and the City as set forth in this Agreement.
19.12 Waiver. Failure by a Party to insist upon the strict performance of any of the provisions of this Agreement by the other Party, or the failure by a Party to exercise its rights upon the default of the other Party, shall not constitute a waiver of such Party's right to insist and demand strict compliance by the other Party with the terms of this Agreement thereafter.
19.13 Execution.
19.13.1. Countemarts. This Agreement may be executed by the parties in counterparts which counterparts shall be construed together and have the same effect as if all of the Parties had executed the same instrument.
19.13.2. Recording. The City Clerk shall cause a copy of this Agreement to be executed by the City and recorded in the Official Records of Riverside County -51-
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no later than ten (10) days after the Effective Date (Gov't Code § 65868.5). The recordation of this Agreement is deemed a ministerial act and the failure of the City to record the Agreement as required by this Section and the Development Agreement Statute does not make this Agreement void or ineffective.
19.13.3. Authority to Execute. The persons executing this Agreement on behalf of the Parties hereto warrant that (i) such Party is duly organized and existing, (ii) they are duly authorized to sign and deliver this Agreement on behalf of the Party he or she represents, (iii) by so executing this Agreement, such Party is formally bound to the provisions of this Agreement, (iv) the entering into of this Agreement does not violate any provision of any other Agreement to which the Party is bound and (v) there is no litigation or legal proceeding which would prevent the Parties from entering into this Agreement. (SIGNATURES ON THE NEXT PAGE.)
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IN WITNESS WHEREOF, the City and the Developer have executed this Agreement on the date fIrst above written.
01102/0012/108862.1:2
CITY OF BANNING
BY:~l2V~ Don Robinson, Mayor
"DEVELOPER"
PARDEE HOMES, a California corporation
BY:
PreSigellt Michael V. McGee
,,/ !)i j
BY:
pre~Sid.ent. ?d ChiEf ,.~xefutive OffiCer
,/' / / / __ ~____ v"'/ U ' .-
-53-
Seeretary y Glad
Senior Vice resident-Governmental
Affairs
1516
CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
State of California
County of Los Angeles
On April 24, 2012, before me, Nancy Trojan, Notary Public personally appeared Michael V. McGee, President and Chief Executive Officer and Amy Glad, Senior Vice President-Governmental Affairs who proved to me on the basis of satisfactory evidence to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities, and that by their signatures on the instrument the persons, or the entities upon behalf of which the persons 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.
NANCY TROJAN WITNESS my hand and official seal
CommiSSion # 1903865
~ Notary Public· California ~ z Los Angeles County ~ J •••• e J4x :OT"!' :x~rts geg 1J}~ltl Nancy rojan
Notary Public i a d for said State.
- - - - - - - - - - - - - - - - -OPTIONAL - - - - - - - - - - - - - - - - - - - - - - - Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form.
DESCRIPTION OF ATTACHED DOCUMENT
Title or Type of Document: Development Agreement - City of Banning Signers are Representing: Pardee Homes
Signer( s) other than named ahove:
Name of Signer:
Corporate Officers Title:
CAPACITY CLAIMED BY SIGNER
Michael V. McGee and Amy Glad
President and Chief Executive Officer and Senior Vice President· Governmental Affairs
1517
EXHIBIT "A"
MAP AND LEGAL DESCRIPTION OF DEVELOPER'S PROPERTY
LEGAL DESCRIPTION
Those certain parcels of land situated in the City of Banning, County of Riverside, State of California, being Lots I through 20 of Tract No. 34330 as shown on a map thereof filed in Book 429, Pages 84 through 103 of Maps in the Office of the County Recorder of said Riverside County.
1518
EXHIBIT "A"
MAP OF DEVELOPER'S PROPERTY
m~H"""i;;llil"'~'~' iiiiiiii~~~"~ri;;;;iii;ij2r IN THE CITY OF BANNING, COUNTY OF RIVERSIDE, STATE OF CAUFORNIA W·.m TRACT NO. 34330 SHEET 3 OF 20 SHEETS
6249814110399v19
BEIIIll ~ SlJBCMSIOH OF POR1l~ or u:rr 1 IS SHOIirn O~ El{ClJJSIO~ IIAP (!£C.OI1ll<D JUr<E', l'S\! AS I~SOOl~EHf H<). ,1000 OF omClIIL ~ECQII\l5 0, Rl'/ERSID£ OOIJ!IlJ. POIITIOK OF SECI10M J!. !(l'jfflSliIP 2 SOIlTll. WlGt t WT, l.1li) _ or St~ I, 1000000HiP 3 W\Illi, ~~GE 1 1I'ESr, B01lI SIN IIII!NARIllHO ~ERlDlMI. .\COOROIHG TO 1!IE OmctlJ.PI.ATTHEREOF.
WIWA1I L. GREEN, LS. 4547 JANUARY 1008
FOR COIlVEYANCE AND FINANCE PURPOSES
SlEC. 25. T28. RWil, S2M
,
,
,
,
,
,
----------1-
LOT'4
lOT15
LOT,s
LOTI?
LOT 19
Exhibit "A"-2
I1I11
""""'T~~ I>JR ""IIW rnAn;. ~~,
~~\::~
1519
62498\411 0399v 19
EXHmIT "A"
PARDEE BANNING PROPERTY
Exhibit '''A''-3
1520
62498\4110399vI9
~ " Zl,6AC
SPECIFIC PLAN MAP
,
lUAU '"
e, l1lR_l~,OOO
.,~
CI1YOFMNNING
Exhibit "A"-4
-
" fl.1Ae
" OPEilSPAGE li5.:lAG
ARESTAAONSilE ~
1.6AC '
" MDR_7,200
Zl.llAC
~ HlQh DensilyResldemfai (l(1..1B DUlAC)
~ OS-GolfCourselDrainage
~ OS-Parks
~ OS-Drainage BasiQ
~Scllool
~Gommerclal
§i§J Ulil1ySUbslation
ProjactBoundary
Current City Bounday
Proposed City BOIJIldary
I
1521
EXHffiIT "B"
EXISTING DEVELOPMENT APPROV ALS/FEE STUDIES
A. EXISTING DEVELOPMENT APPROVALS fDA Section 1.35)
1. General Plan Amendment No. 11-2501
2. Zone Change No. 11-3501
3. Butterfield Specific Plan
4. Development Agreement
B. DEVELOPMENT FEE STUDIES IN PROCESS IDA Sections 1.28, 4.7) Studies being pepared in accordance with Section 7.2.
01102l{0012/108862.12
1. General Facilities Fee"
2. Fire Facilities Fee"
3. Police Facilities Fee"
4. Traffic Control Fee"
5. Park Land Fee
6. Road and Bridge Fee
7. Recycled Water Fee
8. Water Connection"
9. Waste Water Connection" (Collection Fee)
10. Waste Water Frontage Fee
11. Emergency Shelter Fee
" Also included in Exhibit D and are subject to Developer Incentive Credit under Section 6.8.
Exhibit B - Page 1
1522
Date Requested:
Date of Certificate:
EXHIBIT "C"
ESTOPPEL CERTIFICATE
On , 2012, the City of Banning approved the Development Agreement between Pardee Homes, a Califomia corporation and the City of Banning (the "Development Agreement").
This Estoppel Certificate certifies that, as of the Date of Certificate set forth above:
[CHECK WHERE APPLICABLE]
1. The Development Agreement remains binding and effective.
2. The Development has not been amended.
3. The Development Agreement has been amended in the following aspects: __ _
4. To the best of our knowledge, neither Developer nor any of its successors is in default under the Development Agreement.
5. The following defaults exist under the Development Agreement: _____ _ This Estoppel Certificate may be relied upon by an transferee or mortgagee of any interest in the property which is the subject of the Development Agreement.
OI102//0012/108862.12
CITY OF BANNING
BY:--=-::-c-:=-=-::=-:c:::-==-==-=-=----
PLANNING DIRECTOR
Exhibit C - Page 1
1523
EXHIBIT "D"
DEVELOPMENT IMPACT FEES
Fire Facilities
Residential
Single Family Detached
Townhouse/Duplex
Multi-Family
Mobile Home
Nonresidential
Com/Shopping Ctr 50,000 SF or less
Com/Shopping Ctr 50,001- 100,000 SF
Com/Shopping Clf 100,001- 200,000 SF
Com/Shopping Ctf over 200,001 Sf
Office/lnst 25,000 SF or less
Office/lnst 25,001- 50,000 SF
Office/lnst 50,001-100,000 SF
Medical- Oent~1 Office
Hospital
Business Park
Light Industrial
Manufacturing
Warehousing
Elementary School
Other Nonresidential
lodging
Day Care
Nursing Home
Polke F;;Icilities
Residential
Single Family Detached
Townhouse/Duplex
Multi·Family
Mobile Home
Nonresidential
Com/Shopping Clr 50,000 SF or less
Com/Shopping Ctr 50,001·100,000 SF
Com/Shopping Ctr 100,001- 200,000 SF
Com/Shopping Ctr over 200,001 SF
Office/lnst 25,000 SF or tess
Offlce/lnst 25,001· 50,000 Sf
Office/lnst 50/001- 100/000 SF
Medlcal- Dental Office
Hospital
Business Park
Light Industrlal
Manufacturing
Warehousing
Elementary School
Other Nonresidential
01102/10012/108862.12
EXHIBIT nOn
CITY OF BANNING
SCHEDULE OF FEES
DEVElOPMENT IMPACT FEES
1,335.00 per unit
1,335.00 per unit
1,335.00 per unit
1,335.00 per unit
$ 579.00 per 1,000 SF
$ 506.00 per 1,000 Sf
$ 450.00 per 1,000 SF
$ 405.00 per 1,000 SF
$ 841.00 per 1,000 SF
$ 792.00 per 1,000 SF
$ 748.00 per 1,000 SF
$ 821.00 per 1,000 SF
$ 685,00 per 1,000 SF
$ 640.00 per 1,000 Sf
$ 468.00 per 1/000 Sf
$ 363.00 per 1,000 Sf
$ 259.00 per 1,000 SF
$ 186.00 per 1,000 SF
$ 144.00 per room
$ 32.00 per student
$ 73.00 per bed
823.00 per unlt
626.00 perunlt
913.00 perunit
500.00 perunil
$ 472.00 per 1/000 SF
$ 413.00 per 1,000 SF
$ 358.00 per 1,000 SF
$ 307.00 per 1,000 SF
$ 192.00 per 1,000 SF
$ 164.00 per 1,000 SF
$ 140.0q per 1,000 SF
$ 379.00 per 1,000 SF
$ 184.00 per 1,000 SF
$ 134.00 per 1,000 SF
$ 73.00 per 1,000 SF
$ 40.00 per 1,000 SF
$ 52.00 per 1,000 SF
152.00 per 1,000 SF
lof3
Exhibit D - Page 1
Reso. 2006-075 8/8/2006
Reso. 2006-075 8/8/2006
Reso. 2006-075 8/8/2006
Reso. 2006-075 8/8/2006
Reso. 2006-075 8/8/2006
Reso. 2006-075 8/8/2006
Reso.2006-07S 8/8/2006
Reso.2006-075 8/8/2006
Reso. 2006-075 8/8/2006
Reso. 2006-075 8/8/2006
Reso. 2006-075 8/8/2006
Reso. 2006-075 8/8/2006
Reso. 2006·075 8/8/2006
Reso. 2006-075 8/8/2006
Reso. 2006-075 8/8/2006
Reso.2006·075 8/8/2006
Reso. 2006-075 8/8/2006
Reso.2006-075 8/8/2006
Reso.2006·075 8/8/2006
Reso. 2006..(175 8/8/2006
Reso.2006-075 8/8/2006
Reso. 2005-075 8/8/2006
Reso. 2006·075 8/8/2006
Reso.2006-075 8/8/2006
Reso. 2006-075 8/8/2006
Reso. 2006·075 8/8/2006
Reso. 2006-075 8/8/2006
Reso. 2006..(175 8/8/2006
Reso. 2006-075 8/8/2006
Reso. 2006-075 8/8/2006
Reso. 2006-075 8/8/2006
Reso, 2006-075 8/8/2006
Reso. 2006-075 8/8/2006
Reso. 2006-075 8/8/2006
Reso. 2005-075 8/8/2006
Reso. 2006·075 8/8/2006
Reso. 2006..(175 8/8/2006
Reso. 2006·075 8/8/2006
Reso. 2006-075 8/8/2006
1524
Day Care
Nursing Home
Traffic COntrol Facilities
Residential
Single Family Detached
Townhouse/Duplex
Multi-Family
Mobile Home
Nonresidential
Com/Shopping Ctr 50,000 SF or less
COm/Shopping Ctl" 50,001-100,000 SF
Com/Shopping Ctl" 100,001- 200,000 SF
Com/Shopping elf over 200,001 SF
Office/lnst 25,000 SF or less
Office/lnst 2.5,001- 50,000 SF
Offlce/lnst 50,001-100,OOOSF
Medical- Dental Office
Hospital
Business Park
tight Industrial
Warehousing
Elementary School
Other Nonresidential
lodging
Day Care
Nursing Home
Parkland
Residential
Single Family Detached
Townhouse/Duplex
Multi-Family
Mobile Home
Commercial/Industrial
General City Facilities
Residential
Single Family Detached
TownhollselDuplex
Multi-Family
Mobile Home
Nonresidential
Com/Shopping Ctr 50,000 Sf or less
Com/Shopping elf 50,001-100,000 SF
Com/Shopping Ctr 100,001- 200,000 SF
/0012/108862.12
EXHIBIT I1DII
CITY OF BANNING
SCHEDULE OF FEES
DEVELOPMENT IMPACT FEES'
47.00 24,00 per bed
$ 250.00 per unit
$ 153.00 p!lrunit
$ 172.00 p!lrunit
$ 130.00 perunit
$ 1,176.00 per 1,000 SF
$ 1,029.00 per 1,000 SF
$ 891.00 per 1,000 SF
$ 764.00 per 1,000 SF
$ 479.00 per 1,000 SF
$ 409.00 per 1,000 SF
$ 349.00 per 1,000 SF
$ 944.00 per 1,000 SF
$ 459.00 per 1,OOOSF
$ 333.00 perl,OOOSF
$ 182.00 per 1,000 SF
$ 130.00 per 1,000 SF
$ 379.00 per 1,000 SF
$ 238.00 per room
$ 117.00 per student
$ 62.00 per bed
$ 1,955.00 per unit
$ 1,485.00 perullit
$ 2,168.00 per unit
$ 1,187.00 per unit
$ 1,233.00 per acre
$ 478.00 perunlt
$ 363.00 per unit
$ 530.00 per unit
$ 290.00 per unit
$ 208.00 per 1,000 SF
$ 182.00 per 1,000 SF
$ 162.00 per 1,000 SF
2of3
Exhibit D - Page 2
Reso. 2.006..(J75 8/8/2006
Reso. 2.006..(J75 8/8/2006
Reso. 2.006-075 8/8/2006
Reso. 2.006-075 8/B/2006
Reso. 2006-075 8/8/2006
Reso. 2006-075 8/8/2006
Reso.2006-075 8/8/2006
Reso.2oo6-075 8/8/2006
Reso.2oo6:075 8/8/2006
Reso.2oo6-075 8/B/2006
Reso. 2006-075 8/8/2006
Reso. 2006-075 8/8/2006
Reso. 2.006-075 8/B/2006
Reso. 2006-075 8/8/2006
Reso. 2.006·075 8/8/2006
Reso. 2006-075 8/8/2006
Reso. 2{)06"075 8/8/2006
Reso.2006·075 8/8/2006
Reso. 2006-075 8/8/2006
Reso.2006·075 8/8/2006
Reso.2006-075 8/8/2006
Reso.2006-075 8/8/2006
Reso. 2006-075 8/8/2006
Reso. 2006-075 8/8/2006
Reso. 2006-075 8/8/2006
Reso. :2006·075 8/8/2006
Reso. 21106-075 8/8/2006
Reso.2005-075 8/8/2006
Reso.2006-075 8/8/2006
Reso. 2006-tJ75 8/8/2006
Reso. 2006..(J75 8/8/2006
Reso.2006-075 8/8/2006
Reso. 2006-075 8/8/2006
Reso.2006-o75 8/8/2006
1525
Officejlnst 25,000 SF or less
Officef\nst 25,001- 50,000 SF
Office/lnst 50,001-100,000 SF
Medical- Dental Office
Hospital
Business Park
Ught Industrial
Manufacturing
Warehousing
Elementary School
Other Nonresidential
lodging
Day Care
Nursing Home
Water Connection
Water system ~onnectlon fee
Wastewater Connection
Wastewater connection fee
EXHIBIT "0"
CITY OF BANNING
SCHEDULE OF FEES
DEVELOPMENT IMPACT FEES
$
$ 285.00 perl,OOOSF
$ 269.00 per 1,000 SF
$ 295.00 per 1,000 SF
$ 246.00 per 1,000 SF
$ 230.00 per 1,000 SF
$ 168.00 per 1,000 SF
$ 130.00 perl,OOD SF
$ 93.00 perl,OOO SF
$ 67.00 per 1,000 SF
$ 52.00 per room
$ 12.00 per student
$ 26.00 per bed
$ 7,232.00 per equivalent
dwelling unit
$ 2,786.00 per equivalent
dwelling unit
Rasa. 2006-{)75 8/8/2006
Rase. 2006-075 S/8/2006
Rasa. 2006-075 8/8/2006
Reso.2006-075 8{8/2006
Raso.2006-075 8/8/2006
Resa.2006-075 8/8/2006
Rase, 2006-075 8/8/200G
Resa. 2006-4)75 8/8/2006
Rasa. 2006-075 8/8/2006
Rase. 2006·075 8/8/2006
Rase, 2006-075 8/8/Z006
Reso.2006-075 8/8/2006
Reso.2006·075 8/8/2006
Ord.# 1320 12/14/2004
Ord.It1321 1/13/2005
* Fee shall be revised annually based an the average percentage change aver the previous calender year set/orth In the Construction Price Index/or the Los Angeles metropolitan area.
30f3
Exhibit D - Page 3
/0012/108862.12
1526
EXHIBIT "E"
ADDITIONAL AGREEMENTS CONCERNING DEVELOPMENT
In addition to the other terms and conditions concerning the City's assistance to the Project, the City shall accommodate and expedite the development of the Developer's Property as follows:
1.0 CONSTRUCTION CONDITIONS
l.l Provision of Utility Connections. The City shall provide, at the Developer's expense, any necessary temporary and permanent utility connections requested by the Developer for power, water service and sewer service prior to recordation of [mal map.
1.2 Allowance of Transformers. The City shall allow the setting of transformers without requiring adjacent streets to be fully paved. It is anticipated that 6' feet of curb and gutter will be placed adjacent to the transformer to ensure correct elevation of the transformer pad. In the event that the location or elevation change, the Developer shall incur the full costs of relocation of both the curb and transformer.
1.3 Temporary Water Pipes. Temporary above ground pipes for construction water and temporary fIre hydrants will be acceptable for model and production homes prior to the fIrst certifIcate of occupancy in the construction phase being developed.
1.4 Provision of Construction Water. The City shall provide 'Jumpers" or temporary construction water at the City's normal rate.
1.5 Temporarv Use of City Sewer System. The City shall allow the temporary connection of construction trailers to the permanent City sewer system.
1.6 Temporarv Use of City Water System. The City shall allow temporary connection of construction trailers to the permanent City water system, provided that all required backflow devices are installed to protect the integrity of the system.
2.0 MAINTAINENCE
2.1 Maintenance of Construction Activities. The Developer shall contract directly for all work required for the maintenance of construction related activities, including but not limited to recycling of construction materials, erosion control, temporary fence installation, and temporary power installation. The selection and retention of the contractor, subcontractor or other person or entity to do such work shall be made by the Developer in its sole and absolute discretion. Trash removal will be coordinated directly with City franchisee. In regards to recycled materials, the Developer will produce for the City, at its request, a manifest to confIrm the location, type and amount of materials recycled.
Exhibit E - Page 1
01102/0012/108862.12
1527
3.0 STREETS
3.1 Timing of Street Paving. The Developer shall be allowed to begin construction of model and production homes without first paving streets. Paved streets shall be required as a condition for tbe issuance of the certificate of occupancy for the first production home in each construction phase. The Developer shall install all-weather access for construction and emergency personnel. which. during dry months, may, include maintained dirt roads.
3.1 Final Lift of Pavement. The City shall allow the installation of the final 1" of asphalt pavement through coordination with the Developer and the City's Public Works officials. If the final 1" of pavement is installed early in the Development of specific in -tract or on backbone streets, and if no structural failures have occurred within the street system, the City may require a fog coat seal prior to exoneration of any outstanding bonds.
4.0 GRADINGIDRAINAGE
4.1 At Risk Grading. After the first plan check comments on either the rough or mass grading plans are received by the Developer, the City shall allow the Developer to begin grading operations for the area that is the subject of the plan check. The Developer acknowledges that any changes that may be required by the City will be made at the sole expense of the Developer.
4.2 Erosion Control. The Developer shall Develop the Developer's Property in such a way as to confine all storm water within the Project and shall, do so in a manner which adequately protects all construction within the Project. The Developer shall prepare an erosion control plan that will demonstrate methods that may be incorporated in the Development of the Project to protect downstream watersheds. The Developer shall manage and determine when erosion control measures need to be installed and maintained, but Developer shall comply with any order of City.
4.3 Drainage. Reverse lot drainage on lots that back up to open space, the Golf Course or parks shall be allowed provided that these areas are privately maintained by the Property Owners Association.
5.0 DEVELOPMENT CONDITIONS
5.1 Lot Line Adjustments. In the event that lot line adjustments are required for model complexes or adjustments to open space lots after the recordation of a final map, the City shall review the requested adjustment over the counter with City Engineering staff and the Developer or the Developer's representative. This will not be allowed for the construction of regular production homes.
5.2 Rear Residential Slopes. The Developer shall stabilize according to the City Grading and Landscape Ordinance the rear slope of all residential Lots prior to issuance of a Certificate of Occupancy but shall not be required to landscape andlor irrigate the slopes. It is the intention that rear yard landscaping will be required and installed within the time specified in the CCC & R's by the homeowner.
Exhibit E - Page 2
01102/0012/108862.12
1528
5.3 Use of Joint Trenches. The City shall allow the Developer, to utilize joint trenches if it deems it necessary for Internet capabilities and/or telecommunication purposes.
5.4 Curbs. The construction of wedge, rolled curb, or mountable curbs within residential and multifamily zoned Planning Areas shall be permitted at the Developer's sole and absolute discretion.
6.0 GOLF COURSE
6.1 GolfCourse/Active Open Space Drainage Facilities. It is the Developer's intention that the flood control facilities proposed within this area will be constructed consistent with all applicable design standards for such facilities with their maintenance being the responsibility of the either the POA, the operator of the Golf Course, the Developer or the City and not the responsibility of the Riverside County Flood Control District (the "RCFCD") unless the facility has been identified as a Drainage Master Plan Facility by RCFCD.
6.2 Golf Course Water. The financial viability of the Golf Course will be dependent upon the costs to operate and maintain the Golf Course. The City shall provide water to the Project at a per unit rate not to exceed the cost highest tiered rate for irrigation water for the Golf Course for the Term of this Agreement.
7.0 PERMITTING
7.1 Fire Sprinkler Inspections. The City's Building and Safety Division shall serve as Special Fire Marshall for this project. Building and Safety shall be responsible for enforcing the then applicable provisions of the California Fire Code, and the California Building Standards Codes.
7.2 Bond Exoneration. Upon request by the Developer, the City shall generate a one-time punch list of items required for the full or partial exoneration of all Projectrelated improvement bonds, for improvements both within and outside of the Property. The City shall, within 5 days of receipt of a written request from the Developer, provide an inspector to determine if the punch list items have been corrected. Once it has been determined that they have been corrected, the City shall expeditiously exonerate the bonds, partially or fully, as applicable. No additional punch lists shall be generated once an improvement has been inspected and a punch list generated.
7.3 Building Permit Refunds. If a Building Permit has expired without construction having started on the structure for which the Building Permit was issued, the Developer shall be entitled to a refund of the building permit fee less 20% for an administrative fee. No refund will be provided if the request for the refund has not been provided to the City within 30 days of the Building Permit's expiration.
Exhibit E - Page 3
01102/0012/108862.12
1529
8.0 PREVAILING WAGES
The Developer shall pay prevailing wages in connection with the construction of the Project as required by law. To the extent that it is determined that Developer has not paid, or does not pay, prevailing wages required by law for any portion of the Project, Developer shall defend and hold the City harmless from and against any and all increase in construction costs, or other liability, loss, damage, costs, or expenses (including reasonable attorneys' fees and court costs) arising from or as a result of any action or determination that the Developer failed to pay prevailing wages in connection with the construction of the Project.
Developer acknowledges and agrees that should any third party, including but not limited to the Director of the Department ofIndustrial Relations ("DIR"), require Developer or any of its contractors or subcontractors to pay the general prevailing wage rates of per diem wages and overtime and holiday wages determined by the Director of the DIR under Prevailing Wage Law, then Developer shall indenmifY, defend, and hold City harmless from any such determinations, or actions (whether legal, equitable, or administrative in nature) or other proceedings, and shall assume all obligations and liabilities for the payment of such wages and for compliance with the provisions of the Prevailing Wage Law. The City makes no representation that any construction or Site uses to be undertaken by Developer are or are not subject to Prevailing Wage Law.
9.0 COST OF DEVELOPMENT AGREEMENT
Developer has previously deposited approximately $200,000 with the City to pay all the City's outside consulting costs, costs of the environmental and legal review, and costs to process and obtain the Development Approvals, including this Agreement. As of March 1, such costs in aggregate exceed the amount deposited by $20,000, and additional costs are anticipated by the end of the approval process. Accordingly, before this Development Agreement shall be executed by the City, the Finance Director shall prepare a final written statement of costs incurred by City in the processing and approval of the Project, and Developer shall pay such amount in good money to City.
Exhibit E - Page 4
01102/0012l108862.l2
1530
62498\4110399vI9
EXIllBIT "F"
PROPOSED PROJECT FACILITIES
Exhibit "F"-1
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1531
6249814110399v19
EXHIBIT "F"
PROPOSED PROJECT FACILITIES
Exhibit "F"-2
1532
62498\4110399v19
;
LOR
~G 5 eC
EXHmIT "F"
PROPOSED PROJECT FACILITIES
WILSON STREET
Exhibit "F" -3
3100Zooo(ClooaclJ
R""ycl«lW;l.-_",
1533
6249814110399v19
" Co:.<r,1ERGIAL
1:),OAC
EXHIBIT "F"
PROPOSED PROJECT FACILITIES
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I
,
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CiTY OF ,Mlrll%
Exhibit "F"-4
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LEGEND
~Grnu_Rect!aIge
Inlllrnt~oArea~
ReoyoIodW.IerP~,hn"U3ed
forW.I"Di~rib""onto
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1534
62498\4110399v19
EXHIBIT "F"
PROPOSED PROJECT FACILITIES
Exhibit "F"-5
~.~
PROI'OIIED OFFSITE1R\lNKSEWER
PARDEE' UlMAUNDA
P~III'OlIEDOFFSJTE'TRlIIIKSEWER
FlVEBRli>GElI
PROPOSED TRUNKSEWER
FIVE BRIDGES. aDS
PROPOSED TlU)NKSEWER
EXISTING SEWCRSYST:EM
0I'T10111d- DFFS!TI"- TlUJNKS£Wal
ALIGNMENT IF FIVE BRIDGES &
nOS OEVEUJPMENT DOES NOT
1I000fORWARD
PII<>I'OSED OP'flONAl.SEWER
FORCEIfA/NS~N RAMSEYST.AIiD
HlmJ ..... ND HOME RD. OR 0_ S'I:
ANDWILSOI\I ST~ TO DIVERT
ElIISTING SEWEl FUIWS FROII!
PftOl'OSED LIFT S'l'AllOH Ar
R.lMSEY ST.AmI OMARST. TO
PROpo"ED BUTTERFIELD
"TaUIE lIlEAmENT Pl-ANT
1535
EXIDBIT "G"
IDGHLAND SPRINGS IMPROVEMENTS
. ---- ,- -- - -. - - -
C'
-'?""'"'~"" ",,,,,., --- ...
. I
6249814110399v19 Exhibit "G"-l
1536
EXHIBIT "H"
BUTTERFIELD PROJECT FINANCING PLAN
This Financing Plan sets forth the basic terms and conditions pursuant to which City and Developer will cooperate to establish one or more CFD(s) and designate Improvement Areas therein pursuant to the CFD Act to finance the Eligible Facilities in connection with the Project and to levy the Services Special Tax. Capitalized terms not otherwise defined in this Financing Plan shall be defmed as provided in the Development Agreement.
I. Goals and Policies for Financing. The City will adopt general Goals and Policies for establishing CFDs. The Goals and Polices for Financing shall apply on a City-wide basis and may be amended from time to time. This Financing Plan shall be consistent with the City's Goals and Policies for Financing. The principal objectives of this Financing Plan are to:
a. Provide City and Developer reasonable certainty that each CFD will be established in accordance with the Goals and Policies and this Financing Plan.
b. Provide basic parameters for the levy of (i) the Facilities Special Tax (defmed below) within each CFD or Improvement Area to pay directly for Eligible Facilities and to secure the issuance of bonds of each CFD or Improvement Area secured by and payable from the Facilities Special Tax in order to finance the Eligible Facilities ("Bonds") and (ii) the Services Special Tax.
c. Provide basic parameters for the issuance of Bonds by or for the CFD(s) and any Improvement Areas therein.
2. Formation. City shall initiate proceedings to establish a CFD, upon Developer's petition request pursuant to the CFD Act and submittal of City's standard application form and receipt of an advance from Developer in an amount determined by City to pay for City's estimated costs to be incurred in undertaking the proceedings to establish the CFD ("Formation Proceeding Costs"). City agrees that all such advances for Formation Proceedings Costs so long as the costs re reasonable and not due to the actions of developer, incurred in connection with the formation of such CFD shall be eligible for reimbursement out of the first available proceeds of Surplus Special Taxes (defined below) and Bonds of the CFD and/or Facilities Special Taxes to the extent approved by the City's Bond Counsel ("CFD Proceeds"). The exact terms and conditions for the advance of funds by Developer and the reimbursement of such advances shall be memorialized in a separate agreement between City and Developer. City agrees to use its best efforts to complete the proceedings to form each CFD and record the notice of special tax lien for the CFD and each Improvement Area therein within 210 days after City's receipt of Developer's complete application and deposit.
3. Boundaries. The CFD boundary, or the boundaries of all CFDs if more than one is formed, shall encompass the Project. Each CFD may contain multiple Improvement Areas based on phasing of the Project within the CFD.
Exhibit H - Page I 01102/0012/108862.12
1537
4. Eligible Public Facilities and Discrete Components. Subject to the City's adopted Goals and Policies for Financing, and review by Bond Counsel, conditions set forth in the following paragraph, City may authorize the CFDs to finance the acquisition or construction of the Eligible Facilities, which may include the following:
a. public streets and other related improvements within the public right-of-way
b. water facilities
c. storm drain facilities
d. sewer facilities
e. public parks, open space and landscaping
f. electrical facilities to be extent reasonable
g. any public facility to be constructed by City for which Developer is required to make a cash contribution pursuant to the Project's conditions of approval or this Agreement or which is included in any City capital improvement fee program and which public facility is to be owned by the City, subject to credit against the corresponding fee.
The costs of any Eligible Facility to be constructed by Developer that are eligible to be financed with CFD Proceeds ("Actual Costs") shall include the following if permissible under the Act:
(i) The actual hard costs for the construction or the value of the Proposed Eligible Facility, including labor, materials and equipment costs; (ii) The costs of grading related to the Eligible Facility; (iii) The costs incurred in designing, engineering and preparing the plans and specifications for the Eligible Facility;
(iv) The costs of environmental evaluation and mitigation of or relating to the Eligible Facility;
(v) Fees paid to goverrnnental agencies for, and costs incurred in connection with, obtaining permits, licenses or other goverrnnental approvals for the Eligible Facility; (vi) Costs of construction administration and supervision; (vii) Professional costs associated with the Eligible Facility, such as engineering, legal, accounting, inspection, construction staking, materials and testing and similar professional services; and
(viii) Costs of payment, performance and/or maintenance bonds and insurance costs directly related to the construction of the Eligible Facility.
Exhibit H - Page 2 01102/0012/108862.12
1538
(ix) Any other costs permitted by law.
The Eligible Facilities constructed by Developer, and for which Developer elects to submit payment requests, shall be bid, contracted for and constructed in accordance with the Acquisition Agreement to be entered into between City and Developer at the time of formation of the first CFD. The Acquisition Agreement shall provide additional detail, consistent with the provisions ofthe Goals and Polices for Financing and this Development Agreement, with respect to the acquisition and construction of the Eligible Facilities, including a more detailed description of the specific Eligible Facilities that will be eligible to be financed through the CFD and discrete components of each Eligible Facility that may be reimbursed prior to the completion of the entire Eligible Facility. The Acquisition Agreement will also provide additional detail with respect to the financing of the City's construction of Eligible Facilities in satisfaction of corresponding City capital improvement fees, as elected by Developer. The CFD financing of the acquisition of an Eligible Facility constructed by Developer that is included in a City Capital improvement fee program or required by the Project conditions of approval, shall not preclude the Developer's receipt of corresponding fee credits.
5. Financing Parameters. Each CFD shall be authorized to levy Facilities Special Taxes of each Improvement Area and issue Bonds of each CFD or Improvement Area in one or more series to finance the Eligible Facilities in accordance with the basic parameters set forth below:
01102/00121108862.12
a. A precondition to the issuance of Bonds shall be that the value of the real property subject to Facilities Special Taxes required to repay the Bonds shall be at least three times the amount of the Bonds.
b. Each series of Bonds shall have a term of at least thirty (30) years and include escalating annual debt service commensurate with any annual escalation in the Facilities Special Taxes.
c. The total effective tax rate within each Improvement Area applicable to any residential parcel on which a residential dwelling has or is to be constructed, taking into account all ad valorem property taxes, voter-approved ad valorem property taxes in excess of one percent (1 %) of assessed value, the annual special taxes of existing community facilities districts and community facilities districts under consideration and reasonably expected to be established (but excluding the Services Special Tax), the annual assessments (including any administrative surcharge) of existing assessment districts and assessment districts under consideration and reasonably expected to be established (but excluding assessments for maintenance and services), and the Facilities Special Taxes, shall equal two percent (2.00%) of the projected initial sales price of the residential dwelling unit and such parcel, as estimated at the time of formation of the applicable CFD, or such lesser amount requested by Developer. The Facilities Special Taxes may escalate by up to 2% per year.
Exhibit H - Page 3
1539
TABLE OF CONTENTS
1. DEFINITIONS .................................................................................................................. 3
1.1 Acquisition Agreement. ...................................................................................... 3
1.2 Anniversary Date .................................................................................................. 3
1.3 Annual Review. . .................................................................................................. 3 lA Applications ........................................................................... , ............................ 3
1.5 Appraisal of Land Value ....................................................................................... 4
1.6 Assignment." ....................................................................................................... 4
1.7 Authorizing Ordinance. . ...................................................................................... 4
1.8 Building Permit. .................................................................................................... 4
1.9 CC&R' s ................................................................................................................. 4
1.10 Certificate of Compliance. .. ................................................................................ 4
1.11 Certificate of Occupancy .................................................................................... 4
1.12 CFD ....................................................................................................................... 4
1.13 CFD Act. ............................................................................................................. 4
1.14 City ...................................................................................................................... 4
1.15 City Council. ....................................................................................................... 4
1.16 City Development Agreement Ordinance ............................................................. 4
1.1 7 City Manager. .. ................................................................................................... 4
1.18 City Wide Traffic Improvements. .. ..................................................................... 5
1.19 Claims or Litigation .............................................................................................. 5
1.20 Dedicate or Dedication. .. .................................................................................... 5
1.21 Default ................................................................................................................... 5
1.22 Developed Property ............................................................................................ 5
1.23 Development Goals ............................................................................................... 5
1.24 Developer's Property ............................................................................................ 5
1.25 Development. ........................................................................................................ 5
1.26 Development Agreement Statute .......................................................................... 5
1.27 Development Approvals ....................................................................................... 5
1.28 Development Impact Fees ................................................................................... 6
1.29 Development Plan ................................................................................................. 6
1.30 Director ............................................................................................................... 6
1.31 Economically Distressed Year .............................................................................. 6
1.32 Effective Date ....................................................................................................... 6
1.33 Eligible Facitlities ................................................................................................. 6
1.34 Exaction. . ............................................................................................................ 6
1.35 Existing Development Approvals ......................................................................... 6
1.36 Existing Land Use Regulations ............................................................................. 7
1.37 Financing Plan. . .................................................................................................. 7
1.38 Force Majeure ..................................................................................................... 7
1.39 Future Development Approvals. .. ....................................................................... 7 lAO General Plan. . ...................................................................................................... 7 IAI Goals and Policies for Financing .......................................................................... 7 IA2 GolfCourse/Active Open Space ......................................................................... 7 01102/00121108862.12
1540
TABLE OF CONTENTS (cont.)
Page
1.43 Grading Permit. . .................................................................................................. 7
1.44 Improvement Area ................................................................................................ 7
1.45 Innocent Owner ................................................................................................... 7
1.46 LAFCO. . ............................................................................................................. 7
1.47 Land Use Regulations. .. .................................. " .................................................. 7
1.48 Legal or Equitable Interest. ................................................................................... 8
1.49 LMD.. .................................................................................................................. 8
1.50 Local Agency. . .................................................................................................... 8
1.51 Lot. ...................................................................................................................... 8
1.52 Master Tract Map. .. ............................................................................................. 8
1.53 Mortgage.. ........................................................................................................... 8
1.54 Mortgagee ............................................................................................................. 8
1.55 Mortgagee Successor. . ........................................................................................ 8
1.56 Municipal Code. . ................................................................................................. 9
1.57 Non-Defaulting Party. . ........................................................................................ 9
1.5 8 Owner.. ................................................................................................................ 9
1.5 9 Park fees. . ............................................................................................................ 9
1.60 Phase.. ................................................................................................................. 9
1.61 Phasing Plans. . .................................................................................................... 9
1.62 Planning Area. . .................................................................................................... 9
1.63 Planning Commission ........................................................................................... 9
1.64 Pre-Qualified Buyer .............................................................................................. 9
1.65 Property Owner's Association or POA. .............................................................. 9
1.66 Processing Fees. . ................................................................................................. 9
1.67 Project. ........................................................ : ..................................................... 10
1.68 Proposed Project Facilities .................................................................................. 10
1.69 Reimburse or Reimbursement. .......................................................................... 10 I. 70 Reservations of Authority ................................................................................... 10 I. 71 Services Special Tax. .. .................................... " ................................................ 10
1.72 Specific Plan. .. ................................................ " ................................................ 10
1.73 Subdivision Map. .. .......................................... " ................................................ 1 0
1.74 Subdivision Map Act. ......................................................................................... 10
1.75 Taxes... .............................................................................................................. 10 I. 76 Ten or 10th Year Anniversary Review. .. ........................................................... 10
1.77 Term.. ................................................................................................................ 10
1.78 Traffic Control Facility Fee. .. ........................................................................... 11
1. 79 Transfer.. ........................................................................................................... 11
1.80 Trigger Percentages. .. ....................................................................................... 11
1.81 TUMF.. ............................................................................................................. 11
1.82 Zoning Code ........................................................................................................ 11 ii
01102/00121108862.12
1541
TABLE OF CONTENTS (cont.)
2. EXHIBITS ...................................................................................................................... 11
3. TERM ............................................................................................................................. 11
3.1 Tenn .................................................................................................................. 11
3.2 Termination Upon Completion of Construction ............................................... 12
3.3 Termination for Default. ................................................................................... 12
3.4 Extension of the Tenn: ...................................................................................... 12
3.5 Effective Date. . ................................................................................................. 12
4. DEVELOPMENT OF THE DEVELOPER'S PROPERTY ........................................... 12
4.1 Right to Develop ............................................................................................... 12
4.2 Right To Future Approvals. . ............................................................................. 12
4.3 Existing Development Approvals ..................................................................... 13
4.4 Specific Plan ....................................................................................................... 13
4.5 Priority Of Specific Plan ................................................................................... 13
4.6 Later Enacted Measures .................................................................................... 13
4.7 Impact Fee Studies ............................................................................................ 13
5. FINANCING AND THE CITY'S OBLIGATIONS ...................................................... 13
5.1 Formation ofCFD(s) and LMDs ...................................................................... 13
5.2 Adoption of Goals and Policies for Financing. . ................................................ 14
5.3 Services Special Tax. . ....................................................................................... 15
5.4 Planning Area 19, 35, 39 and 71 Drainage Facilities. . ..................................... 15
5.5 Reimbursement Agreements ............................................................................. 15
5.6 Landscape Maintenance Districts ..................................................................... 16
5.7 Reimbursement for Pre-Approval Costs ........................................................... 16
5.8 Obligations of Developer Respecting Financing; No Speculation ................... 17
6. TIME FOR CONSTRUCTION AND COMPLETION OF PROJECT. ......................... 17
6.1 Timing of Development. ................................................................................... 17
6.2 Development Goals ............................................................................................. 18
6.3 Development Goals Satisfied By Commencement of Construction ................... 19
6.4 Public Improvements. . ...................................................................................... 19
6.5 Development of Phasing Plans During Subdivision Map Approvals ............... 20
6.6 Ten Year Anniversary Review ............................................................................ 21
6.7 Failure to Satisty Phasing Goals and Objectives ................................................ 22
6.8 Developer Incentives for Expedited Development ............................................. 23
7. FEES, TAXES AND ASSESSMENTS .......................................................................... 23
7.1 Processing Fees ................................................................................................. 23
7.2 Development Impact Fees ................................................................................... 24
7.3 Wastewater, Domestic and Reclaimed Water Facilities Development Impact Fees ......................................................................................................... 24
7.4 Park Fees ............................................................................................................. 25
7.5 Traffic Impact Mitigation ................................................................................... 26
8. DEDICATIONS AND CONVEYANCES OF PROPERTY INTERESTS ................... 27
8.1 Park Improvements ............................................................................................. 27
8.2 Drainage Facilities. . .......................................................................................... 28 iii
01102/0012/108862.12
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TABLE OF CONTENTS (cont.)
Page
8.3 Satellite Water Treatment Plant. ....................................................................... 29
8.4 Fire Station Site. . ............................................................................................... 29
8. 5 Water Tanks. . .................................................................................................... 29
9. PROCESSING OF REQUESTS AND APPLICATIONS: OTHER GOVERNMENT PERMITS ........................................................................................................................ 30
9.1 Processing.. ....................................................................................................... 30
9.2 Developer to Pay for Expedited Processing ...................................................... 30
9.3 General Time Periods for Processing ................................................................. 30
9.4 Precise Grading/Plot Plan Revisions. .. ............................................................. 31
9.5 Additional Inspectors and Plan Checkers. .. ...................................................... 31
9.6 Tentative Subdivision Maps. .. .......................................................................... 31
9.7 Multiple Final Subdivision Maps: .................................................................... 31
9.8 Financing and Conveyance Maps: .................................................................... 31 9 .9 Water Availability. . ........................................................................................... 31
9.10 Other Governmental Permits. . .......................................................................... 31
9.11 Public Agency Coordination. .. .......................................................................... 31
9.12 Annexation.. ...................................................................................................... 31
10. AMENDMENT AND MODIFICATION OF DEVELOPMENT AGREEMENT ........ 32
10.1 Initiation of Amendment. .. ................................................................................ 32
10.2 Procedure.. ........................................................................................................ 32
10.3 Consent. ............................................................................................................ 32
10.4 Minor Modifications ........................................................................................... 32
10.5 Effect of Amendment to Development Agreement. ......................................... 33 II. RESERVATIONS OF AUTHORITY ............................................................................ 33
11.1 Limitations, Reservations and Exceptions. .. ..................................................... 33
11.2 Regulation by Other Public Agencies. .. ............................................................ 34
11.3 Fees, Taxes and Assessments. .. ........................................................................ 34
12. ANNUAL REVIEW ....................................................................................................... 34
12.1 Annual Monitoring Review. . ............................................................................ 34
12.2 Certificate of Compliance. . ............................................................................... 35
12.3 Failure to Conduct Annual Review ................................................................... 35 13 . DEFAULT, REMEDIES AND TERMINATION .......................................................... 35
13.1 Rights of Non-Defaulting Party after Default. .. ................................................ 35
13.2 No Recovery for Monetary Damages. .. ............................................................ 35
13.3 Recovery of Monies Other Than Damages ......................................................... 36
13.4 Compliance with the Claims Act. ..................................................................... 36
13.5 Notice and Opportunity to Cure ........................................................................ 36
13.6 Dispute Resolution .............................................................................................. 37
13.7 Waiver of Breach. . ............................................................................................ 38
13.8 Limitations on Defaults ....................................................................................... 38
13. 9 Venue.. .............................................................................................................. 39 14 . ASSIGNMENT ............................................................................................................... 39
14.1 Right to Assign ................................................................................................... 39 iv
01102/00121108862.12
1543
TABLE OF CONTENTS (cont.)
14.2 Sale to Pre-Qualified Buyer. . ........................................................................... .41
14.3 Tennination of Agreement With Respect to Individual Parcels Upon Sale to Public. . .......................................................................................................... 41
14.4 Declaration of Covenants .................................................................................... 42
15. RELEASES AND INDEMNITIES ................................................................................ 42
15.1 The City's Release As To Actions Prior To Effective Date ............................ .42
15.2 The Developer's Release As To Actions Prior To Effective Date. . ................ .42
15.3 Third-Party Litigation ......................................................................................... 42
15.4 Hold Harmless: Developer's Construction and Other Activities ..................... .44
15.5 Survival of Indemnity Obligations ................................................................... .44
16. EFFECT OF AGREEMENT ON TITLE ...................................................................... .44
16.1 Covenant Run with the Land. . ......................................................................... .44
17. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION ........................... .45
17.1 Non-liability of City Officers and Employees ................................................. .45
17.2 Conflict of Interest. ........................................................................................... 45
17.3 Covenant Against Discrimination. . ................................................................... 45
18. MORTGAGEE PROTECTION ..................................................................................... 45
18.1 Definitions ......................................................................................................... 45
18.2 No Encumbrances Except Mortgages to Finance the Project. ......................... .45
18.3 Developer's Breach Not Defeat Mortgage Lien .............................................. .46
18.4 Holder Not Obligated to Construct or Complete Improvements ....................... .46
18.5 Notice of Default to Mortgagee ......................................................................... .46
18.6 Right to Cure ....................................................................................................... 46
18.7 City's Rights upon Failure of Holder to Complete hnprovements .................. .47
18.8 Right of City to Cure Mortgage Default. . ........................................................ .48
18.9 Right of the City to Satisty Other Liens on the Developer's Property After Conveyance of Title ............................................................................................ 48
19. MISCELLANOUS .......................................................................................................... 48
19.1 Estoppel Certificates ........................................................................................... 48
19.2 Force Majeure ................................................................................................... 49
19.3 Interpretation ....................................................................................................... 49
19.4 Severability ....................................................................................................... 49
19.5 Joint and Several Obligations ........................................................................... 50
19.6 No Third Party Beneficiaries. . .......................................................................... 50
19.7 Notice .................................................................................................................. 50
19.8 Relationship of Parties ...................................................................................... 51
19.9 Attorney's Fees ................................................................................................. 51
19.10 Further Actions and Instruments. . ..................................................................... 51
19.11 Time of Essence ................................................................................................ 51
19.12 Waiver ............................................................................................................... 51
19.13 Execution ............................................................................................................ 51 v
01102/0012/108862.12
1544
CITY OF BANNING
STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Lincoln Bogard, Administrative Services Director Doug Schulze, City Manager
MEETING DATE: July 9, 2024
SUBJECT: City Attorney Annual Consumer Price Index (CPI) Adjustment RECOMMENDATION:
A motion approving annual rate increase in excess of 3% for Legal Services Agreement with Richards, Watson & Gershon.
BACKGROUND:
The Legal Services Agreement between the City of Banning and Richards, Watson & Gershon dated October 10, 2017 provides for annual rate increases beginning July 1, 2019 based on the percentage change in the Consumer Price Index. Attached letter from City Attorney Serita Young provides details regarding the Legal Services Agreement.
JUSTIFICATION:
Required by contract.
FISCAL IMPACT:
Agreement requires City Council approval for increases in excess of 4.26%. CPI for the Riverside-San Bernardino-Ontario region from March 2023 to March 2024 was 4.3%.The fiscal impact of this rate increase will depend on the actual hours billed for legal services during the period of July 1, 2024 – June 30, 2025.
ALTERNATIVES:
Do not approve and potentially breach contract with City Attorney.
ATTACHMENTS:
1. Banning_ Letter re Annual CPI Adjustment in City Attorney Contract Rates Effective July 1, 2024.PDF 1545
Serita R. Young
T 213.626.8484
F 213.626.0078
E [email protected]
350 South Grand Avenue
37th Floor
Los Angeles, CA 90071
rwglaw.com
July 1, 2024
VIA ELECTRONIC MAIL
[email protected]
Douglas Schulze
City Manager
City of Banning
99 E. Ramsey Street
Banning, CA 92220
Re: Annual CPI Adjustment in City Attorney Contract Rates Effective July 1, 2024 that requires City Council Approval
Dear Doug:
As you may know, the Legal Services Agreement between the City of Banning and Richards, Watson & Gershon dated October 10, 2017 (“Agreement”) provides for annual rate increases beginning July 1, 2019 based on the percentage change in the Consumer Price Index.
Specifically, Section 5A and 5B of the Agreement provides as follows:
5A. Compensation Rates. RWG shall be compensated for the performance of legal services in accordance with the Compensation Rate Schedule for the City (“Compensation Rate Schedule”), attached to this Agreement as Exhibit A and incorporated herein as though set forth in full. The terms of this Agreement and the Compensation Rate Schedule shall apply to legal services performed for entities affiliated with the City that may be established. Except as provided in paragraph B of this Section, the Compensation Rate Schedule, attached as Exhibit A, shall remain in effect until amended by mutual agreement of the parties. 5B. Adjustment in Rates by Change in CPI. Commencing July 1, 2019, and annually thereafter, the hourly rates set forth on Exhibit A shall automatically increase by the percentage change in the Consumer Price Index (All Urban Consumers; Los Angeles-Riverside-Orange County). The calculation shall be made using the month of April over the month of April in the prior year. Any such annual adjustment that equals or exceeds three percent (3%), and any other adjustments in the rates, shall require prior written approval of the City Council.
1546
Douglas Schulze
July 1, 2024 Page | 2
As you may know, in 2018 the United States Bureau of Labor Statistics eliminated the Los Angeles-Anaheim-Riverside Consumer Price Index and replaced it with the Riverside-San Bernardino-Ontario Index. We have used the Riverside-San Bernardino-Ontario Index for purposes of this year’s rate adjustment.
Based on the foregoing, our office prepared a spreadsheet to determine the change in the Consumer Price Index (All Urban consumers for the Riverside-San Bernardino-Ontario region) over the applicable time period (March 2022 to March 2023). A copy of the spreadsheet is attached as Attachment A.
That spreadsheet shows the CPI changed 4.26% over the applicable time period. As it is more than three percent (3%), the adjustment in rates by 4.26% is not automatic and does require City Council approval. After applying a 4.26% increase to our existing rates, the old rates (up to June 30, 2023) and the new rates (effective July 1, 2023) are shown on the revised version of Exhibit A to the Agreement attached hereto as Attachment B.
Upon your review, please place this request on an upcoming City Council agenda so that the City Council may consider and approve our request for that CPI adjustment to our rates.
Please let me know if you have any questions, or need any clarification or assistance from me in my private capacity.
Very truly yours,
Serita R. Young
Attachments
cc: Lincoln Bogard, Administrative Services Director, [email protected] 11303-0001\2983784v1.doc
1547
Attachment A
Spreadsheet showing CPI Changes
1548
CITY OF BANNING
CPI RATE INCREASE FROM 2023 TO 2024
07/01/23 INCR. 07/01/24
4.57% % 4.26%
Series Id: $184 4.26% $192
$220 4.26% $229
Series
Title: $227 4.26% $237
Area: $245 4.26% $255
Item: $251 4.26% $262
Base
Period: $275 4.26% $287
Years: $306 4.26% $319
$336 4.26% $350
$362 4.26% $377
Year Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec
2017 100.000
2018 100.916 101.897 102.929 103.139 103.241 103.616
2019 103.991 104.749 105.959 105.816 106.412 106.573
2020 107.143 107.162 106.899 107.640 108.201 108.626
2021 109.550 110.981 113.222 114.682 115.557 117.206
2022 118.963 122.127 123.893 125.262 125.272 125.983
2023 127.683 127.707 128.768 129.525 131.372 131.372
2024 131.358 133.144
2023 v 2022 CPI INCREASE 5.44
2023 v 2022 % OF INCREASE 4.26%
Consumer Price Index for All Urban Consumers (CPI-U)
Original Data Value
CUURS49CSA0,CUUSS49CSA0
Not Seasonally Adjusted
All items in Riverside-San Bernardino-Ontario, CA, all
urban consumers, not seasonally adjusted
Riverside-San Bernardino-Ontario, CA
All items
DECEMBER 2017=100
2017 to 2024
Prepared: 06/28/24 1549
Attachment B
Revised Exhibit A to Legal Services Agreement
1550
A - 1
11303-0001\2553852v4.doc
EXHIBIT A
RICHARDS, WATSON & GERSHON
COMPENSATION RATE SCHEDULE CITY OF BANNING EFFECTIVE
JULY 1, 2024
General Municipal Services. This work consists of providing legal advice on municipal law matters, attendance at City Council and Commission meetings, workshops, staff meetings, preparation of routine ordinances and resolutions, and review and approval of standard agreements, and other services described in Section 2 of the Legal Services Agreement that are not listed under other categories of this Exhibit. The hourly rates for this work are:
7/1/23 7/1/24
Shareholder Rate $220 $229
Senior Attorney Rate $220 $229
Associate Rate $220 $229
The term “Senior Attorney” means a non-shareholder attorney with more than seven years of experience practicing law.
Tort Defense Litigation. Defense or prosecution of personal injury, death or property damage litigation based on alleged negligence or dangerous conditions of public property. The hourly rates for this work are:
7/1/23 7/1/24
Shareholder Rate $306 $319
Senior Attorney Rate $275 $287
Associate Rate Per Schedule Per Schedule
General Litigation. All litigation services except litigation services specifically described elsewhere in this Exhibit, and including (without limitation), defense or prosecution of writs of mandate, injunctions, breach of contract, inverse condemnation, eminent domain, election proceedings, administrative proceedings, land use and personnel. The hourly rates for this work are:
7/1/23 7/1/24
Shareholder Rate $362 $377
Senior Attorney Rate $336 $350
Associate Rate Per Schedule Per Schedule
1551
A - 2
11303-0001\2553852v4.doc
Code Enforcement. Litigation initiated by the City to enforce the Banning Municipal Code or other State or local laws or regulations. The hourly rates for this work are:
7/1/23 7/1/24
All attorneys blended rate $245 $255
Land Use Projects. Advice concerning subdivision map applications, specific plan applications, zoning map and text applications, the drafting and negotiation of all development agreements, drafting and negotiation of land use entitlements for significant land use projects, specialized advice and representation on general plan, housing and zoning issues, and other related specialized legal advice and counsel, excluding land use litigation. The hourly rates for this work are:
7/1/23 7/1/24
Shareholder Rate $336 $350
Senior Attorney Rate $306 $319
Associate Rate Per Schedule Per Schedule
Personnel and Labor Relations. Advice concerning employee hiring and termination, compensation and benefits, drafting, negotiating and amending employment agreements, labor negotiations, City internal administrative hearings relating to personnel and labor matters and advice compliance with City personnel policies, including but not limited to sexual harassment, excluding personnel litigation. The hourly rates for this work are:
7/1/23 7/1/24
Shareholder Rate $306 $319
Senior Attorney Rate $275 $287
Associate Rate Per Schedule Per Schedule
Environmental. Legal work concerning state and federal hazardous waste laws, including CERCLA and NPDES, compliance audits, appearance before state and federal agencies concerning enforcement actions or permit applications, and litigation relating to such issues.
The hourly rates for this work are:
7/1/23 7/1/24
Shareholder Rate $336 $350
Senior Attorney Rate $306 $319
Associate Rate Per Schedule Per Schedule
1552
A - 3
11303-0001\2553852v4.doc
Other Legal Services Outside of Section 2 or the Categories in this Exhibit. Legal services in specialized areas of the law, such as annexations and reorganizations, water rights, etc. 7/1/23 7/1/24
Shareholder Rate $336 $350
Senior Attorney Rate $306 $319
Associate Rate Per Schedule Per Schedule
Schedule of Associate Rates:
7/1/23 7/1/24
Third Year to Seventh
Year Associates
$251 $262
First and Second
Year Associates
$227 $237
Associate rates change annually based on Bar admission date.
Paralegal Rate:
7/1/23 7/1/24
Paralegal Rate $184 $192
Bond Counsel, Disclosure Counsel and Issuer Counsel Services.
RWG shall provide bond counsel, disclosure counsel and issuer counsel services in connection with the issuance of bonds or other securities by the City, the Successor Agency of the Former Banning Redevelopment Agency (“Agency”), any separate governmental entity formed by the City or governed by the members of the City Council, or a joint powers authority formed by the City. The compensation for those services shall be as follows:
(a) RWG shall charge $377.00 per hour for any of these services. The maximum total fee charged for an issuance shall not exceed an amount that the City Manager deems fair and reasonable based upon generally accepted industry standards and practices. (b) RWG’s costs and expenses would be paid in accordance with Paragraph C of Section 5 of the Agreement.
(c) In the event the proceedings for issuance of the bonds are terminated before closing, we would expect to be paid for our services to the date of abandonment at the hourly rate set forth above, but the amount of that payment would be subject to reduction at the sole discretion of the City Manager.
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(d) In the event the City or Agency forms or is a member of a joint powers authority which has the power to issue bonds or other securities, RWG shall provide bond counsel, disclosure counsel and issuer counsel services to the joint powers authority in connection with the issuance of bonds or other securities, if and when requested by the joint powers authority, which for purposes of this Agreement shall be an Authority. The compensation for services in connection with service to the joint powers authority shall be as specified in subsections (a), (b) and (c) of this section of this Exhibit unless there is a separate contract or agreement with the joint powers authority that provides a fee schedule or rate. 1554
CITY OF BANNING
STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Lincoln Bogard, Administrative Services Director MEETING DATE: July 9, 2024
SUBJECT: Consideration of Resolution 2024-126, Declaring the Intent of the City to be Reimbursed for Certain Capital Expenditures from the Proceeds of Indebtedness
RECOMMENDATION:
Approve Resolution 2024-126.
BACKGROUND:
The City recently undertook electric system improvement projects that are essential for it to deliver efficient and safe service to the community. To incur obligations that are tax-exempt, which provides the lowest cost of borrowing to the City, the City needs to comply with certain IRS requirements. The IRS allows a bond issuer to use the proceeds of its bond issuance to reimburse expenditures made prior to the time bonds are issued, but only so long as the City expresses an intent to do so prior to the actual issuance.
JUSTIFICATION:
A reimbursement resolution is the required expression of intent and is needed if the City will want to use proceeds of tax-exempt obligations to reimburse itself for costs it actually pays prior to the issuance of the obligations. It then can use the tax-exempt proceeds to reimburse itself for costs of the project paid up to 60 days prior to the date the resolution is adopted, subject to certain limitations, the main one being: reimbursement (bond issuance) must occur not later than 18 months after the later of (i) the date on which the expenditure is paid, or (ii) the date on which the project is placed in service, but in no event more than 3 years after the expenditure was paid. No reimbursement resolution is required for reimbursement of soft costs (with a 20% limit for soft costs older than 60 days prior to the resolution).
FISCAL IMPACT:
This would allow the City to help bring the cash balance in electric back to, or near, a positive balance.
The repayment over the bond term, potentially 20 years, will help keep rate increases to a minimum.
Rather than user fees alone bringing cash to the minimum Council set reserve level of $11 million over saw five years, that burden could be spread over up to a 20 year period and coincide better with the long-term asset lives.
ALTERNATIVES:
In order to reimburse from proceeds of the proposed tax-exempt obligations, the City has been advised by its municipal advisor that the City Council should adopt a resolution indicating the City’s intent to so reimburse. The proposed resolution meets the IRS requirement enabling the reimbursement for prior expenditures. There is no consequence to the City if the obligations are ultimately not issued. 1555
ATTACHMENTS:
1. Resolution 2024-126, Indebtedness.docx
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Resolution 2024-126