Mayor
Donald Williams
Vice Mayor
Irais Lopez-Ortega
Councilmembers
Lisa M. Gift
Scott Cooper
Kevin Eisenberg
AGENDA
City Council - Regular Meeting
Tuesday, April 18, 2023 - 6:00 PM
Calistoga Community Center
1307 Washington Street
Calistoga, CA 94515
Hybrid
Below is information on how the public may observe and participate in the meeting. The City recognizes that not all residents have the same ways to stay engaged, so several alternatives are offered.
Please participate in the meeting by observing or listening to the meeting in one of the following ways:
1. Watch on your TV – Napa Valley TV Channel 28 (call your cable provider to ensure you have a City of Calistoga coded cable box)
2. Listen or participate via your phone – dial 1-669-900-6833, enter webinar ID: 829-0729- 5419, password: 123201
3. Watch or participate online via Zoom - click this link and enter password: 123201
4. Watch online via YouTube Live at youtube.com/cityofcalistoga
5. Attend in-person
COMMENT ON THIS MATTER DURING THE MEETING: Please participate in the meeting by providing public comment on any item on the agenda or any item of municipal concern. To comment during a virtual meeting (Zoom), click the "Raise Your Hand" button to request to speak when Public Comment is being taken on the Agenda item. You will be unmuted when it is your turn to make your comment for up to 3 minutes. After allotted time, you will be re-muted. Instructions for how to "Raise Your Hand" are available at: https://support.zoom.us/hc/en-us/articles/205566129-Raise-Hand-InWebinar.
WRITTEN COMMENTS: Alternatively, you may provide public comment on any item on the agenda or any item of municipal concern via email. Please submit your comment, limited to 350 words or less, via email to [email protected]. Written public comments submitted by email should clearly indicate the Agenda Item No. or specify “Oral Communications” in the Subject Line for items not on the agenda and are requested to include the submitter’s full name. Comments received by 4:00 p.m. on the day of the meeting will be posted online with the agenda packet and included in the record but will not be read aloud.
Comments received after 4:00 p.m. will be made part of the written record but will not be read verbally at the meeting. Note: The methods of observing or listening to the meeting or providing public comments may be altered or the meeting may be canceled, if needed, due to certain technical disruptions.
Page
1. CALL TO ORDER – ROLL CALL - SALUTE TO THE FLAG
2. REPORT FROM CLOSED SESSIONS
3. ORAL COMMUNICATION ON CONSENT ITEMS OR NON-AGENDA ITEMS This time is set aside to receive comments from the public regarding matters on the Consent Calendar or matters of municipal concern not on the agenda.
Pursuant to Government Code section 54954.3 (the Brown Act), however, the Council cannot consider any issues or take action on any requests during this comment period. Speakers are encouraged to limit their comments to 3 minutes maximum so that all speakers have an opportunity to address the City Council.
4. ADOPTION OF MEETING AGENDA
5. CITY MANAGER’S REPORT
6. PROCLAMATIONS/PRESENTATIONS/ AWARDS
6.1. Presentation on Fire Department activities
Recommended Action: Receive presentation.
Staff Report - Fire Department Update
Fire Department PowerPoint
4 - 12
7. CONSENT CALENDAR
7.1. Approve the Minutes of the March 21, 2023 City Council Regular Meeting as submitted.
Recommended Action: Approve Minutes
Staff Report & Minutes
13 - 19
7.2. Authorize the Mayor to execute a Water Services and Processing Fees Agreement with Calistoga Hills Resorts, LLC.
Recommended Action: Authorize the Mayor to execute the Water Services Agreement which will formalize aspects of the Development Agreement currently in place with Calistoga Hills Inc. related to water and wastewater provisions as well as other terms and conditions related to the processing fees and charges.
Staff Report - Calistoga Hills Water Services and Processing Fees Agreement - Pdf
Item 7.2 Calistoga Hills Agreement 4.18.2023
20 - 99
8. GENERAL GOVERNMENT
8.1. City Council Priorities and Civic Operating Agreements Recommended Action: By motion finalize and adopt City Council Priorities and Civic Operating Agreements.
Staff Report - City Council Priorities and Civic Operating Agreements. - Pdf
100 - 121
9. COUNCIL REQUESTS AND IDEAS FOR DISCUSSION
10. ADJOURNMENT
NOTICE: If you challenge a city’s zoning, planning, or other decision in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the City Council at, or prior to, the public hearing. Judicial review of any City administrative decision may be had only if a petition is filed with the court not later than the 90th day following the date upon which the decision becomes final. Judicial review of environmental determinations may be subject to a shorter time period for Litigation, in certain cases 30 days following the date of final decision.
Pursuant to GC §54957.5 any writings/documents provided to a majority of the City Council regarding any item on this agenda will be made available for public inspection on the City website at www.ci.calistoga.ca.us.
SUPPLEMENTAL MATERIAL RECEIVED AFTER THE POSTING OF THE AGENDA:
Any supplemental writings or documents distributed to a majority of the City Council regarding any item on this Agenda, after the posting of the Agenda, such writings or documents will be made available on the City’s website and will be available for public review in the City Clerk’s Office located at 1232 Washington Street, Calistoga, California, during normal business hours and by appointment.
AMERICANS WITH DISABILITIES ACT: The City can provide special assistance for persons with disabilities to participate in public meetings. To make a request for disability-related modification or accommodation please contact the City Clerk at [email protected] or (707) 942-2807. If you need assistance or accommodation, please provide notice at least 48 hours prior to the meeting. For TTY/ Speech-to-Speech users, dial 7-1-1 for the California Relay Service, offering free textto-speech, speech-to-speech, and Spanish language services 24 hours a day, 7 days a week.
Se les pide por favor que avise con 48 horas de anticipación cuando haga un pedido para asistencia. Esto les da suficiente tiempo antes de la junta para permitir que la ciudad tome medidas razonables.
POSTING: I declare a copy of this agenda was posted at City Hall, 1232 Washington Street, Calistoga, among other locations in the city limits of Calistoga, on April 10, 2023, by 4:30 p.m. *This agenda was reposted with revised attachments on Item 7.2 on April 18, 2023, by 9:00 a.m.
City of Calistoga
STAFF REPORT
To: Honorable Mayor and City Council
From: Steve Campbell, Fire Chief
Meeting: City Council - Apr 18 2023
Subject: Fire Department Update
DESCRIPTION:
Presentation on fire department activities
RECOMMENDATION:
Receive presentation.
BACKGROUND/SUMMARY:
Staff has prepared an update on fire department activities for 2022.
CEQA STATUS:
None
ATTACHMENT(S):
Fire Department Power Point
APPROVAL(S):
Nitish Sharma Approved - Apr 06 2023
Laura Snideman, City Manager Approved - Apr 07 2023
Marni Rittburg, City Clerk Approved - Apr 10 2023
Item #6.1.
Item #6.1.
2 Calistoga Fire Department
City Council Department Update
4/18/2023
Item #6.1.
3 Fire Chief
Captain
(A Shift)
Engineer
Firefighter
Part-time
Firefighter
Captain
(B Shift)
Engineer
Firefighter
Part-time
Firefighter
Captain
(C Shift)
Engineer
Firefighter
Part-Time
Firefighter
Department
Organization
Item #6.1.
4 Apparatus
Engine 19
2018 Toyne
Engine 319
2020 Pierce
Brush 19
2019 Skeeter
Engine 219
2007 Seagrave
Water Tender 19
2008 Seagrave
Utility 19
2013 Dodge
Item #6.1.
5 Incident Volume
1250
1146
303
0 200 400 600 800 1000 1200 1400
2021
2022
2023
*
ANNUAL CALLS FOR SERVICE
Annual Calls for Service
*2023 Incident volume (1/1/2023-3/31/2023)
3/31/2022-3/31/2023 – 100 overlapping calls for service.
Item #6.1.
6 Incident Statistics
(2022)
Item #6.1.
7 Public Education
This year we have participated in numerous class visits, read across America, senior safety presentations, city of Calistoga safety day, and have many more education events planned. Item #6.1.
8 Training
This year personnel have completed over 200 hours of
formal education and have completed 294 training hours.
Training has included but not limited to HRT (Helicopter Rescue), Fire Attack, Electrical, gas, and propane
emergencies, and Emergency Medical Services.
Item #6.1.
CITY OF CALISTOGA
STAFF
REPORT
TO:
FROM:
Honorable Mayor and City Council
Marni Rittburg, City Clerk
DATE: April 18, 2023
SUBJECT: Approve Minutes
Approved by:
Laura Snideman, City Manager
DESCRIPTION:
Consider approving the Minutes of the March 21, 2023, Regular City Council Meeting.
RECOMMENDATION:
Approve the minutes as submitted.
ATTACHMENTS:
March 21, 2023, Regular City Council Meeting Minutes
Item #7.1.
DRAFT MINUTES
CALISTOGA CITY COUNCIL
REGULAR MEETING
Tuesday, March 21, 2023 - 6:00 P.M.
Virtual Meeting
1. CALL TO ORDER - ROLL CALL - SALUTE TO THE FLAG
Mayor Canning called the regular session to order at 6:03 p.m.
Present: Councilmembers Lisa Gift, Scott Cooper, and Kevin Eisenberg; Vice Mayor lrais Lopez-Ortega, and Mayor Donald Williams
Absent: None
2. REPORT FROM CLOSED SESSION
Mayor Williams reported Council held a Closed Session today at 4:00 PM regarding the Napa County Fairgrounds and the City Manager's Performance Review. There was no reportable action taken in Closed Session regarding the Fairgrounds. The Mayor read the following statement regarding the City Manager: Upon Council's review of City Manager Laura Sideman's past 12 months of employment for the City of Calistoga we continue to affirm our appreciation and support for her hard work and dedication. As a Council we are confident she will continue to serve us in an effective and professional manner.
3. ORAL COMMUNICATION ON CONSENT ITEMS OR NON-AGENDA ITEMS Oral communication was received. For oral communication and public comment content, for any item on the agenda, view the video of the meeting available on the City's You Tube channel at https://www.youtube.com/user/CityofCalistoga or visit the City's Website at:
https://www.ci.calistoga.ea.us/Home/Components/Calendar/Event/5068/702?curm=3&cury= 2023
4. ADOPTION OF MEETING AGENDA
Motion by Councilmember Gift and seconded by Councilmember Eisenberg and passed by the following roll call vote to adopt the meeting agenda as presented.
AYES:
NOES:
ABSTAIN:
ABSENT:
Councilmembers Cooper, Eisenberg and Gift, Vice Mayor LopezOrtega, and Mayor Canning None
None
None
Item #7.1.
Calistoga City Council Minutes
March 21, 2023
5. CITY MANAGER'S REPORT
City Manager Laura Snideman provided updates on public projects and events. Ms.
Snideman welcomed and introduced the following new employees: Police Sergeant Rodolfo Alaniz who spoke. Additionally, new full-time Firefighter Ryan Frenzel was introduced and spoke. Laura also welcomed the following new employees who were not in attendance: Senior Accounting Assistant Tania Amarantes, Treatment Plant Operator Nate Perry.
6. PROCLAMATAIONS /PRESENTATIONS/ AWARDS
6.1 Officer and Dispatcher of the Year Awards
Recommended Action: Celebrate Terrific Staff
Police Chief Mitch Celaya introduced the 2022 Dispatcher of the Year Molly Harden who has been with the City of Calistoga for 21 years and 2022 Officer of the Year Adrian Herrera who both spoke.
The Council took a recess for a medical emergency in the audience at 6:22 p.m. and the meeting resumed at 6:36 p.m.
6.2 Updating the City Council on the Active Transportation Advisory Committee completed initiatives from FY22/23 and the suggested goals for FY23/24.
Recommended Action: No action by the City Council, just receive the presentation.
Public Works Director Derek Rayner introduced ATAC Co-Chair Ed Kozel who provided a PowerPoint presentation on the Active Transportation Advisory Committee's completed initiatives from FY22/23 and the suggested goals for FY23/24. A Resolution will be brought back by the ATAC committee at a future meeting detailing the Fiscal Year 23/24 goals.
7. CONSENT CALENDAR
Item 7.9 was pulled off the agenda by Mayor Williams and will be brought back at a future meeting. Motion by Councilmember Gift, second by Vice Mayor LopezOrtega and passed by the following roll call vote, Council approved all remaining Consent Calendar items:
AYES:
NOES:
ABSTAIN:
ABSENT:
Councilmembers Cooper, Eisenberg and Gift, Vice Mayor LopezOrtega, and Mayor Canning None
None
None
Item #7.1.
Calistoga City Council Minutes
March 21, 2023
7.1Approve the Minutes of the July 19, 2022, City Council Regular Meeting as submitted and the June 1, 2022, and June 21, 2022, City Council Special Meeting Minutes as submitted.
Recommended Action: Approved Minutes
7 .2 Consider adopting Resolution making a technical amendment to the Unrepresented Management Employees January 2023 salary schedule which amends the Unrepresented Management Employees and the Unrepresented Executive Management January 2024 and January 2025 salary schedules.
Recommended Action: Consider adopted Resolution No. 2023-016
7.3 Consideration of a Resolution Approving the 2023 Parade/Event Schedule and Authorizing the Public Works Department to Apply for Encroachment Permits from Caltrans.
Recommended Action: Consider adopting Resolution 2023-017 7 .4 Consider adopting a Resolution that Authorizes the City Manager to execute a purchase order with FCB Construction, Inc., to complete construction of Heather Oaks Park Pathway in an amount not to exceed $65,000. And approves the Project construction budget in the amount of the base bid of $53,873, with a 20% contingency for unforeseen conditions and authorizes the Public Works Director to negotiate and approve contract change orders up to the approved construction budget amount of $65,000.
Recommended Action: Consider adopting Resolution 2023-018 7 .5 Consider adopting a Resolution that authorizes the City Manager to enter into a one-year extension with Perfectmind/Xplor Recreation for program registration and facility booking services.
Recommended Action: Consider adopting Resolution No. 2023-019
7.6Consideration of Ordinance No. 759 amending the Calistoga Municipal Code (CMC) to include new regulations governing the use of reusable and disposable foodware to encourage waste reduction within the City of Calistoga (City).
Recommended Action: Adopt Ordinance No. 759.
7.7 Authorize the City Manager to execute a non-disclosure agreement (NDA) with Pacific Gas and Electric (PG&E) so that the City may access confidential documents concerning the possible construction of a clean energy (hydrogen and battery storage) microgrid to provide emergency power to much of the City during Public Safety Power Shut-off (PSPS) events.
Recommended Action: Authorize the City Manager to execute a NonDisclosure Agreement with Pacific Gas and Electric (PG&E) so that the City may access confidential documents concerning the possible construction of a clean energy (hydrogen and battery storage) microgrid to provide emergency power to much of the city during Public Safety Power Shut-off (PSPS) events.
Item #7.1.
Calistoga City Council Minutes
March 21, 2023
7 .8 Consider adopting a Resolution accepting the mid-year budget update for Fiscal Year 2022-23.
Recommended Action: Receive the Interim Finance Director's report on the mid-year budget for Fiscal Year 2022-2023; and adopt the Resolution amending the budget for Fiscal Year 2022-23. Adopted Resolution 2023-020.
7.9 THIS ITEM WAS PULLED FROM THE AGENDA, NO ACTION TAKEN.
Authorize the City Manager to execute a 'Nater Services Agreement with Calistoga Hills Resorts, LLC.
Recommended Action: Authorize the City Manager to execute the Water Services Agreement which will formalize aspects of the Development Agreement currently in place with Calistoga Hills Ins. related to water and wastewater provisions as well as other terms and conditions related to the Dei.<elopment Agreement.
8. PUBLIC HEARING - None
9. GENERAL GOVERNMENT
Councilmember Gift recused herself and left the meeting at 7:01 p.m. due to a proximity issue.
9.1 Calistoga Fairgrounds and Measure E Results.
Recommended Action: Certify Measure E election results and provide direction to staff on next steps.
City Manager Laura Snideman presented the item and City Clerk Marni Rittburg presented the Measure E Election Results.
Council and staff discussion ensued.
Public comment was received. Councilmember Cooper and Mayor Williams forming a subcommittee to reach out to the public and assemble information. Council direction was to re-enter negotiations. Motion by Councilmember Cooper, second by Councilmember Eisenberg and passed by the following roll call vote. Council adopted Resolution No. 2023-021 Declaring Results of the Special Election Held on March 7, 2023, for the City Of Calistoga Community Facilities District No. 2022-1 (Fairgrounds Acquisition and Maintenance) and Such Other Matters as Provided by Law
AYES:
NOES:
ABSTAIN:
ABSENT:
Councilmembers Cooper and Eisenberg, Vice Mayor LopezOrtega, and Mayor Canning None
Councilmember Gift (Recused)
None
Councilmember Gift rejoined the meeting at 7:53 p.m.
Item #7.1.
Calistoga City Council Minutes
March 21, 2023
9.2Consider the Calistoga Art Center's request to create a Covid-19 Memorial tile project on city property, designate a city staff person to act as a liaison to assist in all aspects of the project, and maintain the memorial in perpetuity.
Recommended Action: Provide direction to staff on next steps in response to the proposal from the Calistoga Art Center.
Park & Recreation Director Rachel Melick presented the item along with the Calistoga Art Center representatives.
Public comment was received. Motion by Mayor Williams, second by Councilmember Gift and passed by the following roll call vote. Council approved the request from the Calistoga Art Center.
AYES:
NOES:
ABSTAIN:
ABSENT:
Councilmembers Cooper, Eisenberg and Gift, Vice Mayor LopezOrtega, and Mayor Canning None
None
None
9.3 Business Economic Diversification Program Criteria.
Recommended Action: Consider modification of application criteria.
Mayor Williams presented the item.
Council and staff discussion ensued.
Public comment was not received. Motion by Councilmember Eisenberg, second by Councilmember Gift and passed by the following roll call vote. Council direction was to eliminate the first criteria of the applicant being within the boundaries of the school district.
AYES:
NOES:
ABSTAIN:
ABSENT:
Councilmembers Cooper, Eisenberg and Gift, Vice Mayor LopezOrtega, and Mayor Canning None
None
None
9.4Redistribution of Funds Allocated to Parks and Recreation Needs Assessment to Parks and Recreation Programs.
Recommended Action: Receive update and provide additional input on redistribution of parks and recreation needs assessment funds to alternate programs.
Park & Recreation Director Rachel Melick presented the item.
Public comment was not received. Motion by Councilmember Eisenberg, second by Councilmember Gift and passed by the following roll call vote. Council direction was to expend the funds as planned in the budget.
Item #7.1.
Calistoga City Council Minutes
March 21, 2023
10. COUNCIL REQUESTS AND IDEAS FOR DISCUSSION
The City Council mentioned the following topics: Green Committee working on Grant with Upper Valley Waste Management, Increase in automobile and pedestrian accidents per Napa Valley Transportation Authority, and March is Red Cross Month.
Mayor Williams requested the agendize the topic of Parklets and their future in Calistoga, and maintenance, etc. at a future meeting. Council consensus was received.
To view the video of the meeting, please visit the City's YouTube channel at https://www.youtube.com/watch?v=M5CStVMCh4c or visit the City's Website at:
https://www.ci.calistoga.ea .us/Home/Components/Calendar/Event/5068/702?curm=3&c ury=2023
G.)ADJOURNMENT
Mayor Canning adjourned the meeting at 8:57 p.m.
Respectfully Submitted
Prepared by:
Marni Rittburg, City Clerk
Approved by:
Donald Williams, Mayor
Approved:
Item #7.1.
City of Calistoga
STAFF REPORT
To: Honorable Mayor and City Council
From: Katie Lichtig,
Meeting: City Council - Apr 18 2023
Subject: Calistoga Hills Water Services and Processing Fees Agreement DESCRIPTION:
Authorize the Mayor to execute a Water Services and Processing Fees Agreement with Calistoga Hills Resorts, LLC.
RECOMMENDATION:
Authorize the Mayor to execute the Water Services Agreement which will formalize aspects of the Development Agreement currently in place with Calistoga Hills Inc. related to water and wastewater provisions as well as other terms and conditions related to the processing fees and charges.
BACKGROUND/SUMMARY:
Enchanted Resorts, Inc., as predecessor in interest to Calistoga Hills Resorts, LLC (Calistoga Hills) and the City entered into a Development Agreement (DA) on March 29, 2013 . The DA encompassed approximately eighty-eight (88) acres within the City, located west of Foothill Boulevard (SR-29/128).
Approvals granted by the City, including the DA, authorize the Developer to develop on the Property a boutique hotel consisting of up to 110 keys, up to 20 residence club homes, up to 13 custom homes, and other public amenities and infrastructure, including on-site improvements and the Off-Site Improvements.
The effective date of the DA was March 29, 2013 (Section 2.01) and the Initial Term was five (5) years from the DA Effective Date, to and including March 29, 2018 (Section 2.03). Pursuant to Section 2.04 of the DA, Developer requested and obtained from the City, five one-year extensions of the Term of the Development Agreement, resulting in a total Term of ten (10) years expiring on March 29, 2023.
The extension of the DA extends all of the “Existing Project Approvals” as defined in Recital G of the DA.
Article 4 of the DA addresses the Allocation of Water and Wastewater Services; Will-Serve Obligations, Domestic and Emergency Potable Water Fees and Allocations; Water, Wastewater and Greywater Facilities and Infrastructure, including, without limitation, tanks, pumps and meters.
More specifically, Section 4.05 of the DA authorizes the Calistoga Hills and the City of Calistoga to work together to prepare and execute a separate agreement ensuring each Party’s ability to exercise its respective rights and perform its obligations under Article 4 of the Development Agreement. As part of this process, Calistoga Hills and the City have determined that it would be mutually beneficial to prepare and execute this Agreement pursuant to Section 4.05 of the Development Agreement, recognizing the payment of fees by the Developer, the water and wastewater allocations available to Item #7.2.
the Developer, and the vesting of Developer’s rights, thereby clarifying their respective rights and obligations as intended under Article 4 of the Development Agreement. One aspect, the reservation of 20-acre feet of future water allocation (water reservation), has been activated by a prior payment of $913,060. As a result of these discussions, the City and Calistoga Hills have been negotiating a Water Services Agreement (Agreement)
The Agreement terms and conditions will specify the water allocations and wastewater provisions available to the Developer. Other terms and conditions regarding administrative and technical provisions may also be included in the Agreement.
ANALYSIS:
Currently, under the DA, Calistoga Hills receives certainty in project costs, permit review fees, and clarity as it relates to the overall project approvals as outlined above related water and wastewater.
The project currently pays building fees based on a percentage of construction costs. The DA also establishes the 2016 building code for purposes of reviewing their building applications.
Once the Development Agreement expires the City’s position is that these permit review fees, staff oversight and code review are no longer set. Rather these fees will be based on the then current fee structure. Specifically, the fees and charges set forth in Resolution No. 2007-126 are currently applicable. As such, permit fees and charges will be based on the construction cost-based formula.
Calistoga Hills disputes this interpretation and believes the terms and conditions of the DA are in place for the life of the project. This includes the 2016 Building Code and the processing fees.
As called for in the DA, it is prudent that both the water/wastewater and future building fees be incorporated in the Water Services and Processing Fees Agreement. The agreement articulates the same provisions related to water and wastewater as are contained in the DA. Additionally, the agreement will explicitly permit the project to be reviewed in accordance with the 2016 Building Code through June 30, 2024. In exchange for stabilized building permit fees and staff time of $5,000 per building (55 according to the building matrix agreed to by the City and Calistoga Hills) and continued review under the 2016 Code until January 4, 2024, the City proposes that a one-time payment in the amount of $610,000 be made upon execution of the agreement. This gives the City clarity on compensation for the investment of staff time and project oversight throughout the duration of project construction until the resort receives its occupancy permit. Calistoga Hills avoids future fee increases and locks in the costs as of the effective date of the agreement as well as the use of the 2016 Building Code through June 30, 2024. The DA will be incorporated by reference.
The following chart provides a comparison of the fees according to the City's current fee schedule versus the formula used to reach the proposal agreed to by Calistoga Hills.
Staff time for administrative and technical oversight, project processing, mitigation monitoring, processing the Final Map or any other activities associated with the non-building permit related oversight is included in lump sum fees of $5,000. Plan checks, inspections and other services provided by the building official whether provided by a contractor will be charged at actual costs to the Developer. External consultancy review and inspections are not included in the $5,000 fee. Should more than 55 buildings be permitted or other miscellaneous permits be required in addition to the 55 buildings contemplated in this agreement then the fee for staff time regarding each additional building will be $5,000. If the project seeks less than 55 building permits then the Developer will pay for the actual number of permits sought.
Item #7.2.
The following is a summary of the terms of the Water Services and Processing Fees Agreement (Attachment 1):
• Clarity about future water and wastewater services associated with this project consistent with the DA (i.e., 20 acre feet of water reservation and water check-in date three years from date of Resort occupancy)
• Set building fees at $5,000 per building for the 55 buildings associated with the project • Applies the 2016 building code that is currently applicable to this project through June 30, 2024 • City receives $275,000 for permit processing and permit oversight for 55 buildings • City receives a one-time payment of $610,000
In sum, this Agreement will clarify both parties rights and obligations as intended under Article 4 of the Development Agreement and establish clarity regarding fees and the length of time the 2016 Building Code is applicable.
CONSISTENCY WITH CITY COUNCIL GOALS AND OBJECTIVES:
This recommendation is consistent with the goals of "maintain and enhance the economic vitality of the community and the financial stability of the City." The one-time payment and the pre-payment of building fees assists the City financial sustainability. Additionally, this agreement helps to bring clarity to the costs for the developer which ultimately supports the economic vitality of the City.
CEQA STATUS:
No CEQA analysis is required for this action. CEQA was previously conducted as part of project consideration.
FINANCIAL IMPACT:
In exchange for affirming provisions of the DA on water/wastewater services, clarity on building permit fees and use of the 2016 building code until June 30, 2024, the City would receive $885,000. Of this amount, staff recommends that up to $275,000 be deposited in the General Fund. Staff recommends of the $610,000, $170,000 be added to the General Fund undesignated reserves to pay for administrative and project oversight. Staff recommends that the remaining $440,000 be deposited into an priority project reserve or fund consistent with City Council future City Council direction.
ATTACHMENT(S):
Attachment 1
APPROVAL(S):
Nitish Sharma Approved - Mar 13 2023
Laura Snideman, City Manager Approved - Apr 09 2023
Marni Rittburg, City Clerk Approved - Apr 10 2023
Item #7.2.
Attachment 1
WATER SERVICE AND PROCESSING FEES AGREEMENT
BETWEEN THE CITY OF CALISTOGA AND
CALISTOGA HILLS RESORTS, LLC
Final agreement pending. To be distributed separately as soon as it is finalized.
Item #7.2.
WHEN RECORDED RETURN TO:
CITY OF CALISTOGA
CITY CLERK
1232 WASHINGTON STREET
CALISTOGA, CA 94515
Exempt From
Recording Fees
Section 27383
WITH A COPY TO:
DIANE G. KINDERMANN
ABBOTT & KINDERMANN, INC.
2100 21st STREET
SACRAMENTO, CA 59818
WATER SERVICE AND PROCESSING FEES AGREEMENT
BETWEEN THE CITY OF CALISTOGA AND
CALISTOGA HILLS RESORTS, LLC
This Water Service and Processing Fees Agreement ("Agreement"), effective as of the date oflast execution ("Effective Date"), is made by and between the CITY OF CALISTOGA, a general law city and a municipal corporation ("City"), and CALISTOGA HILLS RESORTS, LLC ("Developer").
City and Developer are sometimes referred to individually as a "Party" and collectively as the "Parties" with reference to the following facts and intentions.
RECITALS
A. Whereas, Enchanted Resorts, Inc. (as predecessor in interest to Calistoga Hills Resorts, LLC) and the City entered into the that certain Development Agreement by and Between the City of Calistoga and Enchanted Resorts, Inc. dated March 29, 2013 ("Development Agreement") concerning approximately eighty-eight (88) acres within the City, located west of Foothill Boulevard (SR-29/128), depicted on the "Site Map" attached as Exhibit A, and legally described in Exhibit B (the "Property"). A copy of the Development Agreement is attached hereto as Exhibit C.
B. Whereas, approvals granted by the City, including the Development Agreement, authorize the Developer to develop on the Property a boutique hotel consisting of up to one hundred and ten (110) keys, up to twenty (20) residential villas (previously referred as "Residence Club Homes"), up to thirteen (13) custom homes, and other public amenities and infrastructure, including on-site improvements and the Off-Site Improvements (as defined below) (collectively, and as more particularly described herein, the "Project"), all in the manner described in City's 2000 General Plan, as amended pursuant to the General Plan Resolution to effectuate the Project (the "General Plan").
Water Service Agreement -- April I 4, 2023
Between the City of Calistoga and Calistoga Hills Resorts, LLC IRV #48S9-S339-2471 v2
Pagel of 18
Item #7.2.
C. Whereas, the effective date of the Development Agreement was March 29, 2013 (the "DA Effective Date"), (Section 2.01) and the Initial Term was five (5) years from the DA Effective Date, to and including March 29, 2018 (Section 2.03).
D. Whereas, on or about April I, 2013, Enchanted Resorts, Inc., the named party to the Development Agreement, changed its name to "Calistoga Hills Resort, Inc" ("CHRI"). Pursuant to a Stock Purchase Agreement dated November 26, 2014, Sunnet Private Investment Ltd. ("Sunnet") acquired 100% of the shares of CHRI (the "Acquisition"), and following the Acquisition, CHRI (a) converted from a Delaware corporation into a Delaware limited liability company and (b) changed its name to "Calistoga Hills Resort LLC," which is now the Developer (as defined in Recital A).
E. Whereas, pursuant to Section 2.04 of the Development Agreement, Developer requested and obtained from the City, five (5) one (1) year extensions of the Term of the Development Agreement, resulting in a total Term often (10) years expiring on March 29, 2023. The extension of the Development Agreement extends all of the "Existing Project Approvals" as defined in Recital G of the Development Agreement.
F. Whereas, consistent with the City's approval of the Development Agreement, Developer has made substantial and material investments, efforts, and progress to implement the Project. These efforts include, without limitation, (a) making a significant monetary investment in pursuing the design of Project buildings and infrastructure, (b) diligently submitting applications for approvals, entitlements, and permits related to the engineering, design, construction, and operation of the Project as approved, (c) procuring permits for the grading of roads and the construction of Project infrastructure, (d) filing applications for building permits for Project buildings, and commencing construction of two (2) buildings; (e) making substantial monetary investments in the Project by the grading and construction of roads and infrastructure authorized by the permits that have been issued to date, (f) constructing offsite improvements required by the Development Agreement, (g) recordation of the Final Map on January 3, 2023, and (h) full compliance with the Development Agreement (collectively "Project Implementation").
G. Whereas, in March 2020, the World Health Organization declared a global pandemic of the virus leading to COVID-19 and its variants. Federal, state, and local governments responded to the pandemic with legislative amendments, controls, orders, by-laws, requests of the public, and requests and requirements of the Parties (collectively, the "COVID Restrictions"). Developer has complied, in all material respects, with the COVID Restrictions, and notwithstanding the significant impact of the COVID Restrictions upon the Developer and the Project, the Developer has continued to make substantial and material investments, efforts, and progress on Project Implementation.
H. Whereas, the Parties intend through the Development Agreement to allow Developer to complete construction and to operate the Project as set forth in the Development Agreement; and through the Project Implementation, the Developer has a vested right to complete construction of, and to operate the, Project in accordance with and subject to the Existing Project Approvals, the Subsequent Project Approvals, Applicable City Laws and the Development Agreement (collectively, the "City Approvals") which furthers the public health, safety and general welfare in that: (a) the provisions of the Development Agreement are consistent with the General Plan; and (b) the Project is a development for which the Development Agreement is appropriate.
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I. Whereas, the continued development, completion of construction, and operation and use of the Property in accordance with the City Approvals will provide substantial benefits to the City in the form of taxes and other benefits, and contribute to the provision of needed infrastructure for area growth, assure progressive installation of necessary improvements, provide public services appropriate to each phase of development of the Project, ensure the attainment of the maximum effective utilization of resources within the City at the least economic cost to its citizens, and otherwise achieve the goals and purposes for which the Development Agreement Statute was enacted.
J. Whereas, Article 4 of the Development Agreement addresses the Allocation of Water and Wastewater Services; Will-Serve Obligations, Domestic and Emergency Potable Water Fees and Allocations; Water, Wastewater and Greywater Facilities and Infrastructure, including, without limitation, tanks, pumps, and meters.
K. Whereas, Section 4.05 of the Development Agreement authorizes the Parties to work together in good faith to prepare and execute a separate agreement ensuring each Party's ability to exercise its respective rights and perform its obligations under Article 4 of the Development Agreement (such agreement, a "Water Service Agreement" or as also referenced herein, "Agreement").
L. Whereas, the Parties have determined that it would be mutually beneficial to prepare and execute this Agreement pursuant to Section 4.05 of the Development Agreement, recognizing the payment of Fees by the Developer, the water and wastewater allocations available to the Developer, and the vesting of Developer's rights, thereby clarifying their respective rights and obligations as intended under Article 4 of the Development Agreement.
M. Whereas, Developer has objected to the methodology used by the City to determine the reasonable amount of processing fees imposed from time to time by City to cover the actual costs to City of processing applications, including processing building and grading permit applications, plan reviews, and inspections (the "Objections").
N. Whereas, the Parties have determined that it would be mutually beneficial to agree upon a predetermined amount of the City's anticipated fees for City's 1) Processing Fees and Administrative Oversight Costs; 2) Reasonable Consultant Fees; and 3) Building Permit Fees, each as defined herein in section 5.1 below, in the amount reasonably estimated to cover such City costs and for the purpose of resolving their dispute concerning the Objections and providing greater cost certainty for the Developer.
AGREEMENT
NOW, THEREFORE, in consideration of their mutual covenants and conditions, the sufficiency of which is hereby acknowledged, the Parties agree as follows:
I. Recitals. The above recitals incorporated herein by reference and are true, correct, and material to this Agreement.
2. Capitalized Terms. Capitalized terms not defined herein shall have the meaning as defined in the Development Agreement.
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3. Property Boundaries. The Parties acknowledge that the Property boundaries may increase, and this Agreement shall apply to any additional real property added to the Project, subject to compliance with CEQA and receipt by Developer of any applicable land use entitlements.
4. Water and Wastewater Allocations and Use.
4.1 Allocation of Water and Wastewater Services. City hereby agrees that the Project shall be and hereby is deemed to be exempt from the City Growth Management System pursuant to Section 19.020.050(F) of City's Municipal Code (except as expressly noted in this Agreement at Sections 3.3C and 3.4A), and that the water and sewer service allocations set forth herein are hereby made to and for the benefit of the Project. City agrees that unless prohibited by a moratorium lawfully adopted by another governmental agency not controlled by City, or by action taken by City in accordance with this Agreement, no change in Applicable City Law shall reduce or eliminate these allocations.
4.2 Will-Serve Obligation. The allocations of water and wastewater capacity set forth herein shall constitute the "will serve" obligation of City with respect to the Project (the "Will-Serve Obligation"). The City's Will-Serve Obligation is vested in the Developer by the Project Implementation, and this Agreement clarifies the current rights and obligations of the Parties. The water and wastewater allocations set forth herein shall constitute the Baseline (as defined in Municipal Code Section 13 .16.060) for the Project and any additional allocations shall be determined as set forth in Sections 3.3 and 3.5 of this Agreement. This provision shall supersede any conflicting City codes or regulations in effect as of the Effective Date.
4.3 Domestic and Emergency Portable Water, and Wastewater.
A. Annual 30 Acre Feet Allocation. City agrees to provide the Project an annual allocation of thirty (30) acre feet of domestic and emergency potable water (as defined under the Resource Management Services Code) to service all Project uses (the "Annual 30 Acre Feet Allocation").
B. Water Service Connection Fee. The Water Service Connection Fee for this Annual 30 Acre Feet Allocation was paid by Developer on July 23, 2013, in the sum of one million, six thousand, three hundred eighty dollars ($1,006,380) for the Annual 30 Acre Feet Allocation.
(1) The Water Service Connection Fee payment and the Monthly Payments satisfies:
(a) Developer's wastewater connection fee payment obligations for the initial annual wastewater allocation of sixty (60) acre feet of discharge identified in Section 4.04A of the Development Agreement (the "Annual 60 Acre Feet Wastewater Allocation"); and (b) the City's Will-Serve Obligation as set forth under Section 4.02 of the Development Agreement. No surety bond or other security shall be required for the Annual 60 Acre Feet Wastewater Allocation.
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C. Additional Annual 20 Acre Feet Reservation. City agrees that Developer has reserved and is entitled to an additional annual allocation of twenty (20) acre feet of domestic and emergency potable water under City's Resource Management System, as provided in section 4.03 of the Development Agreement (the "Additional Annual 20 Acre Feet Reservation"). On November 10, 2022, the reservation was made by Developer with a cash payment for the amount of nine hundred thirteen thousand sixty dollars ($913,060.00) to secure the Additional Annual 20 Acre Fee Reservation. This reservation was accepted by the City.
(1) The City agrees that Developer may decrease the amount of the Additional Annual twenty (20)-Acre Feet Reservation, and in no event shall the additional annual reservation be increased above twenty (20)-acre feet except as set forth in Section 4.3.E below.
(2) Pursuant to Section 4.30(2) herein, if the additional annual twenty (20) acre feet Reservation is reduced, the Developer shall be entitled to a rebate of the payment made on November l 0, 2022, in accordance with the formula set forth in Section
4.30(2).
D. Actual and Projected Water Demand. Promptly following the Water Check-In Date, City and Developer shall review the Project's average actual annual demand for domestic and emergency potable water (the "Actual Water Demand") against the projected demand of thirty (30) acre feet annually (the "Projected Water Demand").
The Water Check-In Date is three (3) years from the Resort Occupancy Date as defined in the Development Agreement. Based upon such Actual Water Demand, the Parties shall make the following adjustments:
(1) If the Actual Water Demand over the period between the Resort Occupancy Date and the Water Check-In Date exceeds the Projected Water Demand, then within ninety (90) days after such determination is made, Developer shall pay to City the differential connection fees due at the generally applicable fee schedule in effect at the time, and City shall increase the Project's allocation of water supply and the Baseline to the level of the Actual Water Demand (but not above thirty (30) acre feet of water annually plus any amount reserved under Section 4.3(C)).
The Project's water allocation of fifty (50) acre feet consists of the Annual 30 Acre Feet Allocation and the Additional Annual 20 Acre Feet Reservation. For example, if the Actual Water Demand over the period between the Resort Occupancy Date and the Water Check-In Date is forty (40) acre feet of water under Section 4.3, Developer has reserved at least an additional ten (10) acre feet of water, and the fee schedule in effect at the time provides for a fee of thirty eight thousand four hundred sixty three dollars ($38,463) per additional acre foot of water annually, then Developer shall pay to City an amount equal to three hundred eighty four thousand, six hundred thirty dollars ($384,630) ( 40-30=1 O; 10 * $38,463 = $384,630).
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(2) If the Actual Water Demand over the period between the Resort Occupancy Date and the Water Check-In Date is less than the Projected Water Demand, then: (a) City shall give Developer a rebate in an amount equal to thirty-three thousand five hundred forty-six dollars ($33,546) multiplied by the difference between the Projected Water Demand and the Actual Water Demand; and (b) City shall decrease the Baseline accordingly. For example, if the Actual Water Demand over the period between the Resort Occupancy Date and the Water Check-In Date is twenty-five (25) acre feet of water, then City shall pay to Developer an amount equal to one hundred sixty-seven thousand, seven hundred thirty dollars ($167,730) (30-25=5; 5 * $33,546 = $167,730).
E. Additional Domestic and Emergency Potable Water Allocation. After the Water Check-In Date (a) Developer may apply from time to time for an additional domestic and emergency potable water allocation above fifty (50) acre feet of water annually; and (b) such emergency potable water application may be approved as provided under the terms of City's Growth Management System.
F. Water Purveyor. Subject to compliance with State law, Developer shall have the right to be a purveyor of water to users within the Property, including through the utilization of meters serving all or any portion of the Property or the Project. Developer shall be obligated, at its sole cost and expense, to operate, maintain, repair and replace its privately owned water distribution facilities, including without limitation, pipes, backflow devices, and sub-meters, in accordance with all applicable federal, State, county, and city laws, regulations, ordinances, rules, and standards.
G. Water Pump Installation Oblie;ation. As part of its development of the Project, Developer shall install two (2) separate metered water pumps at City connection points: (a) one (1) that is solely dedicated to day-to-day water services for the Property and the Project and refill of any on-site reservoir; and (b) one (1) that is dedicated to emergency services as outlined in the Adobe Report prepared in connection with the approval of the Development Agreement.
4.4 Wastewater Charges and Facilities.
A. Charges. City agrees to charge the Project the Transient General Rate for monthly treatment services as incorporated in City's wastewater service rate matrix. The Project will not be subject to any present or future connection fees for wastewater service for the Annual 60 Acre Feet Wastewater Allocation. Developer may apply from time to time for additional wastewater allocation beyond the Annual 60 Acre Feet Wastewater Allocation and such applications may be approved as provided under the terms of City's Growth Management System.
B. Greywater Systems; Meters.
(1) Subject to Applicable City Laws, Developer may, but shall not be required to, install "greywater systems" for use within the Property, potentially including for Water Service Agreement -- April 14, 2023
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landscape uses to, among other things, reduce the amount of wastewater discharged to City. City encourages such uses.
(2) Developer may, at its expense, place meters at appropriate discharge points within the Property to monitor and measure the amount of wastewater effluent discharged to City.
5.1 Processing Fees and Administrative Oversight Costs, Consultant Fees, and Building Permit Fees
A. Processing Fees and Administrative Oversight Costs. The Developer agrees to pay the City for all Processing Fees and Administrative Oversight Costs for all Project ministerial and discretionary permit applications in the amount of six hundred and ten thousand dollars and no cents ($610,000.00) to be paid in full by the Developer as of the date of execution of the Agreement by all Parties.
(1) "Processing Fees" shall constitute any and all costs reasonably necessary to review, analyze, and respond to the Developer's permit submittal, including preparing and revising plans and policies that the City is required to adopt to make any necessary findings and determinations on the issuance of the permit.
Processing fees shall include all staff time and shall exclude non-City employee Consultant time.
(2) Administrative Oversight Costs" shall constitute all City staff time on post permit approval actions including but not limited to legally required monitoring and inspections. Administrative oversight shall include all staff time and shall exclude non-City employee Consultant time.
B. "Consultants' Fees" City may charge, and Developer agrees to pay, all reasonable, out-of-pocket costs (without an administration or carrying charge) to City of engaging such third-party consultants (including architects) as City may reasonably deem necessary to assist City in processing applications for Project Approvals.
(1) Thorough Scope of Work to be Approved By Developer. City shall cooperate with Developer in establishing a scope of work and budget(s) for any third-party consultants prior to engaging such consultants, however the final scope and budget shall be at City's reasonable discretion in light of the size, type and complexity of the Project and the subject Project Approval. City shall use reasonable efforts to minimize Consultant Fees.
(2) Timely Invoicing of All Consultant Fees. All Consultant Fees for work performed by a third-party consultant shall be billed by City in a prompt and efficient manner, and in reasonable detail, including a general description of the services performed. Any bills for Consultant Fees shall be paid within thirty Water Service Agreement -- April 14, 2023
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(30) days of the Developer's receipt thereof, except for fees that are required by City to be paid at the time a permit or other service is rendered.
C. Building Permit Fees.
(1) Developer shall be entitled, at Developer's election, to prepay any or all of the total maximum Building Permit Fees for the Project attributable to City building permit related costs, which maximum fees due shall be two hundred seventy five thousand dollars ($275,000.00) for fifty five (55) building permits for the Project at a cost of five thousand dollars ($5,000) for each building permit. (2) The Developer may prepay the Building Permit Fees or may elect to pay the Building Permit Fees incrementally as each building permit is being requested. (3) Developer shall pay a fee of five thousand dollars ($5,000) for each building permit in excess of fifty-five (55) building permits. Developer will pay less than two hundred seventy-five thousand dollars ($275,000.00) if less than 55 building permits are sought.
5.2 2016 Calistoga Building Code. The Parties agree that building and grading construction for the Project subject to City permitting shall be reviewed in accordance with the 2016 Calistoga Building Code and 2016 grading standards through June 30, 2024 (i.e., permits or applications for permits submitted to the City prior to June 30, 2024 will be subject to the 2016 Calistoga Building Code and 2016 grading standards). Subsequent to June 30, 2024, building and grading construction subject to City permitting shall be reviewed in accordance with the edition of the Calistoga Building Code and grading standards then in effect.
6. Term and Termination.
6.1. Term. The term of this Agreement shall continue from the Effective Date until the Water Check-In Date or the date of issuance of the last Occupancy Permit for the Project, whichever occurs last in time but not to exceed ten (10) years from the effective date of this Agreement.
6.2 Action by the City. The Parties recognize the value of the Project to the community. In accordance with that recognition, City agrees to use reasonable efforts to diligently provide the services and granting of approvals as set forth in this Agreement, or which may be reasonably required for the Developer to complete the Project including but not limited to the issuance of permits, and review and approval of all planning, environmental, design, and construction activities undertaken by the Developer related to the Project (collectively "Permits"). In the event that the Developer experiences undue delays or failure by relevant City departments in the granting of the Permits, the Developer shall notify the City Manager in writing of such delays and the City Manager's office shall take such action as the City Manager determines, in her sole discretion, to Water Service Agreement -- April 14, 2023
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timely issue such delayed Permits. This provision is deemed a material term of this Agreement for all purposes including Section 6.3 Breach.
6.3 Breach. The failure or delay by either Party to perform any material term or provision of this Agreement shall constitute a breach of this Agreement. In the event of an alleged breach of any term or provision of this Agreement (each, a "Breach"), the Party alleging such Breach (the "Alleging Party") shall give the other Party (the "Breaching Party") written notice thereof specifying the nature of the Breach and the manner in which such Breach may be cured (the "Breach Notice"). The Breaching Party shall have thirty (30) days following receipt of the Breach Notice to cure such Breach, provided that, if such Breach may not be reasonably cured within thirty (30) days, but within such thirty (30) days the Breaching Party commences to cure such Breach, then such cure period shall be extended for so long as the Breaching Party diligently prosecutes such cure to completion. Notwithstanding the immediately preceding sentence, any extension shall not exceed one hundred twenty (120) days following receipt of the Breach Notice (any such period, the "Cure Period"). During the Cure Period, the Breaching Party shall not be in default under this Agreement. The failure of any Party to give notice of any Breach shall not be deemed to be a waiver of such Party's right to allege any such Breach or other Breach at any other time. If the Breaching Party has not cured a Breach for which it has received a Breach Notice within the Cure Period therefore, the Breaching Party shall be in default and a default shall be deemed to have occurred ("Default").
6.4 Remedies.
A. In the event of a Default, the Alleging Party shall have the right to terminate this Agreement upon giving notice of intent to terminate.
B. In the event of an inability to cure a Default by City or Developer, the Parties intend that the primary remedy for the Alleging Party shall be specific performance of this Agreement. A claim for actual monetary damages against the Breaching Party may only be considered if specific performance is not granted by the court. In a case where the City has been adjudicated to be in default, the Parties concur that it would be difficult to assess the Developer's actual damages, and the Parties agree that the Developer shall be entitled to actual and reasonable monetary damages in the amount of six hundred ten thousand dollars ($610,000). In no event shall Developer or City be entitled to any consequential, punitive or special damages, except in a case where a claim is the result of the gross negligence or willful misconduct of the City.
C. In addition to any other rights or remedies, either Party may institute legal action to: (1) cure, correct or remedy any Default; (2) enforce any covenants or agreements herein; (3) enjoin any threatened or attempted violation hereof; or ( 4) obtain any other remedies consistent with the purpose of this Agreement.
6.5 Enforceability. The Parties agree that unless this Agreement is amended or terminated, this Agreement shall be enforceable by any Party notwithstanding any change(s) in any Water Service Agreement -- April 14, 2023
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7. applicable general plan, specific plan, zoning ordinance, subdivision ordinance or any other land use ordinances or building ordinances, resolutions or ordinances or other regulations adopted by City which changes, alters or amends the general plan, specific plan, zoning ordinance, subdivision ordinance or any other land use ordinances or building ordinances, resolutions or ordinances or other regulations applicable to the development of the Property or the fulfillment of the City's "will serve" obligation at the time of the approval of this Agreement.
6.6 Resolution of Disputes. With regard to any dispute involving the Agreement, the resolution of which is not provided for by this Agreement or Applicable City Law, the Parties shall meet at the request of any Party at which meeting they shall attempt in good faith to resolve any such disputes. Nothing in this section shall in any way be interpreted to require that Developer and City reach agreement with regard to any such dispute, nor shall the outcome of these meetings be binding in any way on a Party unless expressly agreed to by the Parties in writing.
6.7 Effect of Termination. Upon termination, the Parties agree and acknowledge that: (1) all rights and obligations of the Parties set forth in this Agreement shall terminate and be of no further force and effect, unless expressly stated otherwise, and (2) all water and/or wastewater allocations and ongoing City monitoring shall be governed by applicable ordinances, policies, and practices in effect at the time.
6.8 Effect of Challenge. If this Agreement is challenged by a Party or a third party and the challenge results in the nullification of this Agreement, whether through litigation or any alternative dispute resolution proceeding, the City shall refund the Developer the full amount of the consideration payment in the amount of six hundred ten thousand dollars and no cents ($6 I 0,000.00), Said refund shall be provided to Developer within thirty (30) days from the date of nullification of the Agreement.
6.9 Effect of Refund Event. Any breach, nullification, or any other cause resulting in the refund to the Developer of the Consideration Payment shall terminate this Agreement, and upon such refund neither Party shall have any further rights or obligations hereunder, except for Section 7 below, which shall survive notwithstanding termination of this Agreement.
6.10 Surviving Provisions. In the event this Agreement expires or is earlier terminated, neither Party shall have any further rights or obligations hereunder, except for Section 7 below, which shall survive notwithstanding termination of this Agreement.
Indemnity/Liability.
7.1. Indemnity by Developer.
A. Indemnity. To the fullest extent permitted by law, Developer shall indemnify, hold harmless, and defend (with counsel chosen by City) City, its officers, elected officials, employees, agents, volunteers, and consultants (collectively, the "City Parties") from and Water Service Agreement -- April I 4, 2023
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against any and all actions, claims, demands, damages, disability, losses, and expenses including, but not limited to, attorneys' fees and other defense costs and liabilities of any nature that may be asserted by any person or entity, to the extent arising out of the negligent act or omission from implementation of the Agreement, or breach of the Agreement, by the Developer, its officers, elected officials, employees, agents, volunteers, and consultants ("Developer's Representatives"). The Developer's obligations pursuant to this Section 5.1 shall not apply to any liabilities caused solely by the negligence or willful misconduct of the City Parties. Developer's duty to indemnify and hold harmless, as set forth herein, shall include the duty to defend as set forth in California Civil Code § 2778.
B. Indemnity Re: Third Party Challenge to Authority to Enter Agreement.
Developer shall indemnify, defend with counsel reasonably acceptable to City, and hold harmless City Parties from and against any and all litigation, claims, costs, damages, losses, or liabilities challenging the validity of this Agreement. In addition, Developer shall reimburse City, within thirty (30) days following City's written demand therefor, which may be made from time to time during the course of such litigation, all reasonable costs incurred by City in connection with the litigation challenge, including City's administrative, legal and court costs, in the event that City shall either: (a) elect to joint representation by Developer's counsel; or (b) retain an experienced litigation attorney. In addition, City and Developer, at Developer's sole cost and expense, shall cooperate in the event of any court action instituted by a third party or other governmental entity or official challenging the validity of any provision of this Agreement, and City shall, upon request of Developer, appear in the action and defend its approval of this Agreement, except that City shall not be required to be an advocate for Developer. Nothing herein shall authorize Developer to settle such legal challenge on terms that would constitute an amendment or modification of this Agreement unless such amendment or modification is approved by City in accordance with the Applicable City Laws.
C. Survives Termination. This Section 7.1 shall survive termination of this Agreement. The indemnification obligations are not limited in any way by any limitation on the amount or type of damages or compensation payable to or for the Parties or their agents under insurance policies or workers' compensation acts, disability benefits, or other employee's benefits acts.
7.2. Delay Due to a Force Maieure Event; Extension of Time of Performance. Neither City nor Developer shall have liability for damages or delays due to fire, explosion, lightning, pandemics, pest damage, power surge or failures, flood, drought, earthquakes, acts of God, the elements, war, civil disturbances, or acts of civil or military authorities or the public enemy (a "Force Majeure Event"). No Party shall be deemed to have breached any term or provision of this Agreement or be in default hereunder, and all performance and other dates specified in this Agreement shall be extended, where a Party fails to perform a term or provision of this Agreement due to a Force Majeure Event.
Upon the occurrence of a Force Majeure Event, the Party whose performance is affected shall provide the other party with written notice that describes the nature of the Force Majeure Event and how it is affecting the performance of the affected Party. The occurrence of a Force Majeure Event which shall include a pandemic, but shall exclude Water Service Agreement -- April 14, 2023
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COVID-19 and its variants, shall cause the date for performance of such terms or provisions to be extended for the period of the Force Majeure Event, which shall be deemed to commence and terminate as of the time of the commencement and termination, respectively, of such event, but in all events, such extended time for performance shall not exceed one hundred twenty (120) days.
8. Miscellaneous Provisions.
8.1. Entire Agreement. This Agreement is intended by the Parties as the final expression of their agreement with respect to such terms as are included herein and as the complete and exclusive statement of its terms and may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement, nor explained or supplemented by evidence of consistent additional terms.
8.2. Amendments. The terms of this Agreement shall not be waived, altered, modified, supplemented or amended in any manner whatsoever except by written agreement signed by both City and Developer.
8.3. Compliance with Law. Each and every provision of law and clause required by law to be inserted into this Agreement that is not otherwise described herein, shall be deemed to be inserted herein and this Agreement shall be read and enforced as though it were included herein unless it is expressly excluded.
8.4. Construction Applicable Law and Venue. The terms and provisions of this Agreement shall be liberally construed to effectuate the purpose of this Agreement. In determining the meaning of, or resolving any ambiguity with respect to, any word, phrase or provision of this Agreement, no uncertainty or ambiguity shall be construed or resolved against either party under any rule of construction, including the party primarily responsible for the drafting and preparation of this Agreement, which shall be governed by and construed in accordance with the laws of the State of California without reference to choice of law provisions and venue shall be in the appropriate court in Napa County, California. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision of this Agreement. All references in this Agreement to City's laws, rules, regulations, official policies, standards and specifications, including those enacted or imposed by a citizen-sponsored initiative or referendum or by the City Council directly or indirectly in connection with any proposed initiative or referendum, shall be to the Applicable City Laws.
A. This Agreement has been reviewed and revised by legal counsel for both City and Developer, and no presumption or rule that ambiguities shall be construed against the drafting Party shall apply to the interpretation or enforcement of this Agreement.
B. Unless the context clearly requires otherwise, in this Agreement, including its Exhibits: (a) the plural and singular shall each be deemed to include the other; (b) the masculine, feminine, and neuter genders shall each be deemed to include the others; ( c) Water Service Agreement -- April 14, 2023
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"shall", "will", or "agrees" are mandatory, and "may" is permissive; (d) "or" is not exclusive; (e) "include", "includes" and "including" are not limiting and shall be construed as if followed by the words "without limitation"; (f) "days" shall mean calendar days; (g) reference to any Recital, Article, Section, Exhibit, or any defined term shall be deemed to refer to the Recital, Article, Section, Exhibit or defined term of this Agreement; and (h) if the last day of any period to give notice, reply to a notice, meet a deadline or to undertake any other action occurs on a day that is not a Business Day, then the last day for undertaking the action or giving or replying to the notice shall be the next succeeding Business Day.
8.5. Covenants Running with the Land. All of the provisions contained in this Agreement shall be binding upon the Parties and their respective heirs, successors and assigns, and all other persons acquiring all or a portion of the Property or the Project, whether by operation oflaw or in any other manner whatsoever. All of the provisions contained in this Agreement shall be enforceable as equitable servitudes and shall constitute covenants running with the land pursuant to California law including California Civil Code Section 1468. Each covenant herein to act or refrain from acting is for the benefit of or a burden upon the Project, as appropriate, runs with the Property and is binding upon Developer of all or a portion of the Property and each successive Developer during its development of such Property or portion thereof.
8.6. Notices. Any notice, communication, consent or approval required or permitted hereunder by or between City or Developer must be in writing, and may be given either personally, by Federal Express or other similar overnight courier, or by email (with original forwarded by Federal Express or other similar overnight courier). If personally delivered, a notice shall be deemed to have been given when delivered to the Party to whom it is addressed. If given by email transmission, a notice or communication shall be deemed to have been given and received upon actual physical receipt of the entire document by the receiving Party's email system. Notices transmitted by email after 5:00 p.m. on a Business Day shall be deemed to have been given and received on the next Business Day. If given by Federal Express or similar courier, a notice or communication shall be deemed to have been given and received on the date delivered as shown on a receipt issued by the courier. Any Party may at any time, by giving ten ( 10) days written notice to the other Party, designate any other address in substitution of the address to which such notice or communication shall be given. Any notices or communications shall be given to the Parties at their addresses set forth below (as the same may be revised in accordance with the preceding sentence): ·
Ifto City:
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City of Calistoga
1232 Washington Street
Calistoga, California 94515
Attention: City Manager
[email protected] listoga.ca.us
Item #7.2.
With copies to:
If to Developer:
With a copy to:
Michelle Kenyon, City Attorney
Burke, Williams & Sorensen, LLP
1999 Harrison Street, Suite 1650
Oakland, CA 94612-3520
[email protected]
City of Calistoga
1232 Washington Street
Calistoga, California 94515
Attention: Public Works Director
[email protected]
City of Calistoga
1232 Washington Street
Calistoga, California 94515
Attention: Building Official
[email protected]
Calistoga Hills Resort LLC
c/o CTF Development, Inc.
1450 Brickell Avenue, Suite 2620
Miami, FL 33131
Attention: Legal Department
[email protected]
Diane G. Kindermann
Abbott & Kindermann. Inc.
2100 21 st Street
Sacramento, CA 95818
[email protected]
8.7. Counterparts; Entire Agreement; Exhibits. This Agreement may be executed in multiple counterparts and transmitted electronically (including by PDF), each of which shall be deemed to be an original. This Agreement, together with the attached Exhibits, constitutes the final and exclusive understanding and agreement of the Parties and supersedes all negotiations or previous agreements of the Parties with respect to all or any part of the subject matter hereof. The Exhibits attached to this Agreement are incorporated herein for all purposes.
8.8. Amendments; Administrative Actions. This Agreement may be amended from time to time, in whole or in part, by mutual written consent of the Parties. The City Manager or his or her designee, in consultation with the City Attorney, is authorized (but not required) to enter into any amendments to this Agreement, grant any consent or waiver, in each case on behalf of City (each, an "Administrative Action") so long as such Administrative Actions do not materially modify: (a) permitted uses of the Property; (b) provisions for the reservation or dedication of land; ( c) the density or intensity of use Water Service Agreement -- April 14, 2023
Between the City of Calistoga and Calistoga Hills Resorts, LLC IRV #4859-5339-2471 v2
Item #7.2.
of the Property or the maximum height or size of proposed buildings; (d) vested rights of Developer; ( e) monetary payments by Developer; or ( e) the construction of Off-Site Improvements.
8.9. Recordation of This Agreement. The City Clerk may record an executed copy of this Agreement in the Official Records of Napa County, California.
8.10. No Joint Venture or Partnership. It is specifically understood and agreed to by and between the Parties that: (a) the subject development is a private development; (b) City has no interest or responsibilities for, or duty to, third parties concerning any improvements until such time, and only until such time, that City accepts the same pursuant to the provisions of this Agreement or in connection with the various Existing Project Approvals or Subsequent Project Approvals; (c) Developer shall have full power over and exclusive control of the Project herein described, subject only to the limitations and obligations of Developer under this Agreement, the Existing Project Approvals, Subsequent Project Approvals, and Applicable City Law; (d) City and Developer hereby renounce the existence of any form of agency relationship, joint venture or partnership between City and Developer; and ( e) City and Developer agree that nothing contained herein or in any document executed in connection herewith shall be construed as creating any such relationship between City and Developer.
8.11. Waivers. No Party shall be deemed to have waived any provision of this Agreement unless it does so in writing, and no "course of conduct" shall be considered to be such a waiver, absent such a writing.
8.12. Estoppel Certificate. Within thirty (30) days of a written request of either Party to the other Party, the other Party shall provide written certification stating: (a) whether or not this Agreement is in full force and effect and a binding obligation of the Parties; (b) whether or not this Agreement has not been amended or modified, and if so amended or modified, identifying the amendments and/or modifications; and (c) to the knowledge of the certifying Party, whether or not the requesting Party is in default in the performance of its obligations under this Agreement and, if so, describing the same in detail.
8.13. No Third-Party Beneficiaries. The Parties expressly agree and acknowledge that there are no third-party beneficiaries to this Agreement, nor do the Parties intend for there to be any third-party beneficiaries to this Agreement.
8.14. Time of Essence. Time is of the essence of each and every provision of this Agreement.
8.15 Cooperation. The Parties agree to cooperate with each other as may be necessary to implement this Agreement and the Development Project. Without limiting the foregoing, the City agrees to retain staff and consultants as may be necessary to process Developer's permit requests. The City agrees to diligently and in a cost-effective manner, process all of Developer's permit requests.
Water Service Agreement -- April I 4, 2023
Between the City of Calistoga and Calistoga Hills Resorts, LLC !RV #4859-5339-2471 v2
Item #7.2.
IN WITNESS WHEREOF, this Agreement has been entered into by and between Developer and City as of the Effective Date.
CITY OF CALISTOGA, CALIFORNIA,
a municipal corporation
By
ATTEST:
By
Donald Williams, Mayor
Marni Rittburg, CMC
City Clerk
APPROVED AS TO FORM:
Burke, Williams & Sorensen, LLP
By
Michelle Kenyon
City Attorney
Water Service Agreement -- April 14, 2023
Between the City of Calistoga and Calistoga Hills Resorts, LLC IRV #4859-5339-2471 v2
CALISTOGA HILLS RESORT LLC,
(f/k/a EN CHAN ED RESORTS, INC.),
a Delaware Ii te liability company
Name ~\~l QE~
Title _J_(_Ck_:._ ~----=-""-.-~ ..... -------=l ___ _
Signature
Item #7.2.
I
DISTRICT OF COLUMBIA )
) ss.:
)
On this, the /!:f Tl-I- day of April, 2023, before me, the undersigned, personally appeared Daniel Sedlmayer, as Vice President of Calistoga Hills Resort LLC, who is personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument. ( signature a of individual taking acknowledgment)
RUTH LAGERA
NOTARY PUBLIC DISTRICT OF COLUMBIA
My Commission Expires May 31, 2027
Item #7.2.
ACKNOWLEDGEMENT
A notary public or other officer completing this certificate verifies only the identity of the inciivichrnl who sie;neci the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California
County of _____ _
On _______ before me, _______ ______ (insert name and title of the officer), personally appeared ____________ __,, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature ____________ _
Water Service Agreement -- April 14, 2023
Between the City of Calistoga and Calistoga Hills Resorts, LLC IRV #4859-5339-2471 v2
(Seal)
Item #7.2.
Water Service Agreement -- April 14, 2023
EXHIBIT A
SITE MAP
Between the City of Calistoga and Calistoga Hills Resorts, LLC IRV #4859-5339-24 71 v2
Item #7.2.
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Item #7.2.
EXHIBITB
PROPERTY DESCRIPTION
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE COUNTY OF NAPA, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
TRACT ONE:
PARCEL ONE:
Lots 1 through 28 and Lots 30 through 35 as shown on the map entitled, "Final Map of Diamond Hill Estates" filed April 21, 2005 in Book 25 of Maps at pages 12-20 in the office of the County Recorder of said Napa County.
APN 011-310-031 thru -041; 011-320-041 thru -044; -046 thru -049; -051; -052; -054 and -056 thru -067
PARCEL TWO:
Parcels "A" through "G", and the private streets labeled "Manzanita Road", "Madrone Drive" and "Ponderosa Road", as shown on the map entitled, "Final Map of Diamond Hill Estates" filed April 21, 2005 in Book 25 of Maps at pages 12-20 in the office of the County Recorder of said Napa County.
APNs 011-320-039; -040; -045; -053; -068; -069; -055 and 050 PARCEL THREE:
A non-exclusive easement 20 feet wide for utility purposes and incidents thereto as contained in Easement Deed recorded March 14, 2002 as Series Number 2002-0010887 of Official Records of Napa County.
PARCEL FOUR:
A non-exclusive easement 20 feet wide for underground utilities and incidents thereto as contained in Easement Deed recorded May 1, 2002 as Series Number 2002-0018265 of Official Records of Napa County.
PARCEL FIVE:
A non-exclusive Easement, for a right-of-way fire lane and all other emergency purposes as described in the "Easement for Fire and Emergency Access Agreement" recorded August 2, 2004 as Series Number 2004 0032490 of Official Records of Napa County.
TRACT TWO:
PARCEL ONE:
Parcel 1, as shown on the map entitled, "Parcel Map of the Lands of William J. and Conrad Weil", filed March 5, 1976 in Book 7 of Maps at pages 81 in the office of the County Recorder of said Napa County.
APN 011-320-007
Water Service Agreement -- April I 4, 2023
Between the City of Calistoga and Calistoga Hills Resorts, LLC IRV #4859-5339-24 71 v2
Item #7.2.
PARCEL TWO:
A non-exclusive easement 20 feet wide for utility purposes and incidents thereto as contained in Easement Deed recorded March 14, 2002 as Series Number 2002-0010887 of Official Records of Napa County.
PARCEL THREE:
A non-exclusive easement 20 feet wide for underground utilities and incidents thereto as contained in Easement Deed recorded May 1, 2002 as Series Number 2002-0018265 of Official Records of Napa County.
PARCEL FOUR:
A non-exclusive Easement, for a right-of-way fire lane and all other emergency purposes as described in the "Easement for Fire and Emergency Access Agreement" recorded August 2, 2004 as Series Number 2004 0032490 of Official Records of Napa County.
TRACT THREE:
PARCEL ONE:
Lots 16, 17, 18 and 19 in Block A of Eastern Addition, so called, according to that certain map entitled, "Map of Calistoga, showing its extensions, surroundings and the Hot Sulphur Springs", filed March 1, 1871 in the office of the County Recorder of said Napa County, said Block being that block so lettered on said map, and bounded on the north by Main Street, on the west by the southerly extension of the eastern line of Laurel Street.
EXCEPTING THEREFROM, that portion of said Lot 19, described in the Deed to F. Groeneveld, et ux, recorded May 17, 1935 in Book 98 at page 205 of Official Records of Napa County.
APN 011-310-024 PTN.
PARCEL TWO:
That portion of the adjoining former State Highway southeasterly of the northwestern line of said Lot 16 that was described in the Resolution of Abandonment recorded September 5, 1962 in Book 658 at page 777 of Official Records ofNapa County.
APN 011-310-024 PTN.
PARCEL THREE:
A non-exclusive easement 20 feet wide for utility purposes and incidents thereto as contained in Easement Deed recorded March 14, 2002 as Series Number 2002-0010887 of Official Records of Napa County.
PARCEL FOUR:
A non-exclusive easement 20 feet wide for underground utilities and incidents thereto as contained in Easement Deed recorded May 1, 2002 as Series Number 2002-0018265 of Official Records of Napa County.
Water Service Agreement -- April 14, 2023
Between the City of Calistoga and Calistoga Hills Resorts, LLC IRV #4859-5339-24 71 v2
Item #7.2.
PARCEL FIVE:
A non-exclusive Easement, for a right-of-way fire lane and all other emergency purposes as described in the "Easement for Fire and Emergency Access Agreement" recorded August 2, 2004 as Series Number 2004 0032490 of Official Records of Napa County.
TRACT FOUR:
PARCEL ONE:
Commencing at a point on the Southwestern line of Main Street, distant thereon 179 feet Southeasterly from the point of intersection thereof with the Southwesterly extension of the Northwestern line of Pine Street; thence South 24° 20' 18" West, parallel with said extension of Pine Street, 323.00 feet to the true point of beginning; thence South 68° 44' 48" East 258.87 feet; thence South 50° 14' 31" East, 91.11 feet; thence South 63° 00' 06" East 74.13 feet; thence South 73° 54' 11" East 22.22 feet; thence South 12° 16' 49" West 12.71 feet; thence South 77° 12' 09" East 42.86 feet; thence North 12° 16' 49" East 10.24 feet; thence South 73° 54' 11" East 150.72 feet; thence North 25° 15' 46" East 226.56 feet to the Southwestern line of Block A of the Eastern Addition to Calistoga as shown on the Map entitled "Map of Calistoga, Showing its Extensions, Surroundings and Hot Sulphur Springs, Napa County, Cal.", filed March l, 1871 in the Office of the County Recorder of said Napa County, thence Southeasterly along the Southwestern line of said Block A of Eastern Addition South 62° 13' 18" East 397.50 feet and South 76° 49' 18" East 293 .13 feet to the Northeast corner of the Tract of Land described to Roland DeGuarda, recorded March 27, 1998 under Series Document Number 1998-007784 of Official Records, Napa County Records; thence along the Eastern line of said Lands ofDeGuarda South 24° 04' 52" West 1,002.21 feet to the most Southern corner of Parcel B as shown on the Map of Diamond Hill Estates, recorded April 21, 2005 in Book 25 of Record Maps at Pages 12 through 20, said Napa County Records; thence along the exterior boundary of said Map of Diamond Hill Estates North 30° 56' 57" West 455.47 feet, South 77° 35' 22" West 240.20 feet, North 78° 24' 59" West 282.42 feet, South 33° 09' 50" West 294.72 feet, North 43° 43' 12" West 108.30 feet, North 48° 39' 00" West 107.04 feet and South 55° 52' 07'' West 6.16 feet to the most Northern comer of Lot 29, said Map of Diamond Hill Estates; thence following along the lines of Lot 29, as shown on said Map Southeasterly along a non-tangent curve to the left, the center of which bears North 83° 35' 07'' East, having a radius of 240.00 feet through a central angle of 53° 52' 34" an arc length of 225.68 feet and South 68° 42' 16" West 214.91 feet to the most Southern comer of said Lot 29 on the Southwestern line of Calistoga City limits; thence along said City limits line North 66° 13' 20" West 445.51 feet to the Southwest corner of said lands ofDeGuarda; thence Northerly, Easterly and Northerly along the Western lines of said Lands ofDeGuarda to the true point of beginning.
EXCEPTING THEREFROM any portion thereoflying Southerly of the Southerly line of Parcel One of the Deed to Roland DeGuarda recorded May 14, 2008 as Series No. 2008-0012357 of Official Records.
APN 011-310-043 (ptn) & 011-310-044
PARCEL TWO:
A non-exclusive easement for a right of-way-fire lane and all other emergency purposes as described in the "Easement for Fire and Emergency Access Agreement" recorded August 2, 2004 as Series Number 2004 0032490 of Official Records of Napa County.
Water Service Agreement -- April 14, 2023
Between the City of Calistoga and Calistoga Hills Resorts, LLC !RV #4859-5339-24 71 v2
Item #7.2.
Excepting from Parcel Two that portion thereof lying within Parcel One.
PARCEL THREE:
A non-exclusive easement for private utilities and private access over Manzanita Road, Ponderosa Road and Madrone Drive as shown on the map entitled "Final Map of Diamond Hill Estates" filed April 21, 2005 in Book 25 R.M. at pages 12-20.
PARCEL FOUR:
A non-exclusive for the use, construction, reconstruction, repair and maintenance of a pump house and water pipes and electrical utilities as granted in the Pump House Easement Agreement recorded July 30, 2015 as Series Number 2015-0019648 of Official Records.
Water Service Agreement -- April 14, 2023
Between the City of Calistoga and Calistoga Hills Resorts, LLC IRV #4859-5339-2471 v2
Item #7.2.
Water Service Agreement -- April 14, 2023
EXHIBIT C
DEVELOPMENT AGREEMENT
Between the City of Calistoga and Calistoga Hills Resorts, LLC IRV #4859-5339-2471 v2
Item #7.2.
This document is exempt from payment of a
recording fee pursuant to California
Government Code Section 27383
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
City of Calistoga
1232 Washington Street
Calistoga, CA 94515
Attention: City Clerk
11 11111111111111111111111111111111111111111
20 1 3 - 00 1 1 1 82
Recorded I RE FEE 0.00
Official Records I
County of I CCIIHiO m (Oil 0.00
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Recorder's Stamp
Authorizing Agreement No. 518
DEVELOPMENT AGREEMENT
BY AND BETWEEN
THE CITY OF CALISTOGA,
A CALIFORNIA MUNICIPAL CORPORATION
AND
ENCHANTED RESORTS, INC.,
A DELA WARE CORPORATION
Item #7.2.
DEVELOPMENT AGREEMENT
This DEVELOPMENT AGREEMENT (this "Agreement") is entered into as of the 9th day of April 2013, by and between ENCHANTED RESORTS, INC., a Delaware corporation ("Developer"), and the CITY OF CALISTOGA, a California municipal corporation ("City").
City and Developer are sometimes referred to herein as a "Party" and collectively as the "Parties".
RECITALS
A. 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 enacted California Government Code § 65864 et seq. ("Development Agreement Statute"), which authorizes City to enter into an agreement with any person having a legal or equitable interest in real property regarding the development of such property.
B. Pursuant to California Government Code §65865, City has adopted procedures and requirements for the consideration of development agreements (City Municipal Code Chapter 17.39). This Agreement has been processed, considered and executed in accordance with such procedures and requirements.
C. Developer owns that certain real property consisting of approximately eighty eight (88) acres within City, located west of Foothill Boulevard (SR-29/128), depicted on the "Site Map" attached as Exhibit A, and legally described in Exhibit B (the "Property").
D. Developer proposes to develop on the Property a boutique hotel consisting of up to one hundred ten (110) keys, up to twenty (20) residence club homes, up to thirteen (13) custom homes, and other public amenities and .infrastructure, including on-site improvements and the Off-Site Improvements (as defined below) (collectively, and as more particularly described herein, the "Project"), all in the manner described in City's 2000 General Plan, as amended pursuant to the General Plan Resolution to effectuate the Project (the "Genera) Plan").
E. Developer seeks to comply with the Project conditions of approval and develop the Property in accordance with the land use policies and goals set forth in the General Plan and in accordance with this Agreement.
F. The application for this Agreement was considered by City at one or more duly noticed public hearings in accordance with the Development Agreement Statute.
G. On or about August 21, 2012, the City Council, at a duly noticed public hearing, took the following actions in connection with the development of the Project on the Property:
l. By Resolution No. 2012-061, certified the EIR and adopted the Mitigation Monitoring Plan;
2. By Resolution No. 2012-062 (the "General Plan Resolution"), amended the General Plan Overlay Districts Map;
2 Item #7.2.
3. By Resolution No. 2012-063, approved and adopted a vesting tentative subdivision map (the "Vesting Tentative Map");
4. By Resolution No. 2012-064, approved a Conditional Use Permit for the Resort Hotel (as defined below), Design Review and Preliminary/Final Planned Development Plan; and
On or about September 18, 2012 (the "Approval Date"), the City Council, at a duly noticed public hearing, took the following actions in connection with the development of the Project on the Property:
5. By Ordinance No.686, rezoned the Property;
6. By Ordinance No. 687, approved this Agreement and authorized City's execution and delivery of this Agreement.
The approvals and development policies described in subsections 1 through 6 of this Recital G are collectively referred to herein as the "Existing Project Approvals".
H. Subsequent to approval of this Agreement, City anticipates that applications for additional approvals, entitlements, and permits related to the development and operation of the Project will be submitted to implement and operate the Project (the "Subsequent Project Approvals").
I. This Agreement furthers the public health, safety and general welfare in that the provisions of this Agreement are consistent with the General Plan. City and Developer have further determined that the Project is a development for which this Agreement is appropriate.
This Agreement will reduce uncertainty, thereby encouraging planning for, investment in and commitment to use and development of the Property, all in accordance with this Agreement.
Continued use and development of the Property in accordance with this Agreement are anticipated, in turn, to provide substantial benefits to City and contribute to the provision of needed infrastructure for area growth, assure progressive installation of necessary improvements, provide public services appropriate to each phase of development of the Project, ensure attainment of the maximum effective utilization of resources within City at the least economic cost to its citizens and otherwise achieve the goals and purposes for which the Development Agreement Statute was enacted.
J. The Parties intend through this Agreement to (i) allow Developer to develop and operate the Project in accordance with the Existing Project Approvals and the Applicable City Laws (as defined below), and (ii) require that any Subsequent Project Approvals and Fees and Exactions with respect to the Project be governed by this Agreement.
K. The City Council has found that this Agreement is consistent with the General Plan and has conducted all necessary proceedings in accordance with City's rules and regulations for the approval of this Agreement.
L. In exchange for the benefits to City contained herein, City has taken or will take all actions required so that Developer may begin and consummate development of the Project, 3 Item #7.2.
including the future approval of building plans and issuance of final maps and building permits, and other necessary or desired approvals and entitlements that are consistent with development of the Project.
M. In exchange for the benefits to City, Developer desires to receive the assurance that it may proceed with the Project in accordance with the Existing Project Approvals, subject to the tenns and conditions contained in this Agreement, and to secure the benefits afforded to Developer by the Development Agreement Statute.
N. It is the intent of the Parties that all acts referred to in this Agreement shall be accomplished in such a way as to fully comply with CEQA and the Development Agreement Statute.
0. The terms of this Agreement support the vital and best interests of City by ensuring that development of the Project will provide tax revenue for City.
P. The Parties acknowledge that, in reliance on the agreements, representations and warranties contained in this Agreement, Developer will take certain actions, including making substantial investments and expenditures of monies, relative to the Property and the development of the Project.
AGREEMENT
NOW, THEREFORE, in consideration of the promises, covenants and provisions set forth herein, the receipt and adequacy of which are hereby acknowledged, and the authority contained in the Development Agreement Statute, the Parties agree as follows:
ARTICLE 1. DEFINITIONS
Section 1.01 Definitions.
"Actual Water Demand" shall have the meaning set forth in Section 4.03. "Administrative Action" shall have the meaning set forth in Section 10.07. "Adobe Report" shall have the meaning set forth in Section 3.11.D. "Affiliate" shall mean any Person that directly or indirectly Controls, is Controlled by or is under Common Control with, a Party ( or a partner or managing or other member of a Party, as the case may be).
"Agreement" shall have the meaning set forth in the introductory paragraph preceding the Recitals and shall include any amendment or modification hereto entered into by the Parties in accordance with Section 10.07.
"Alleging Party" shall have the meaning set forth in Section 9.01. 4 Item #7.2.
"Annual Review Date" shall mean the second January 1 occurring after the Fee Payment Date and each January 1 thereafter during the Term.
"Applicable City Laws" shall have the meaning set forth in Section 3.02. "Approval Date" shall have the meaning set forth in Recital 0. "Assignee" shall have the meaning set forth in Section 8.02.A. "Assignment" shall have the meaning set forth in Section 8.02.A. "Breach" shall have the meaning set forth in Section 9.01. "Breach Notice" shall have the meaning set forth in Section 9.01. "Breaching Party" shall have the meaning set forth in Section 9.01. "Business Day" shall mean a day other than a Saturday, Sunday or holiday recognized by City.
"CEQA" shall mean the California Environmental Quality Act, Division 13 of the California Public Resources Code, Sections 21000 and following. "CEQA Guidelines" shall mean the Guidelines for the California Environmental Quality Act, Title 14 of the California Code of Regulations, Chapter 3, Sections 15000 and following. "Changes in the Law" shall have the meaning set forth in Section 3 .10 "City" shall have the meaning set forth in the introductory paragraph preceding the Recitals or the territorial jurisdiction thereof, as applicable. "City Council" shall mean the Council of City.
"City Manager" shall mean the City Manager of City.
"Consultant Fees" shall have the meaning set forth in Section 5.02.A(2). "Control" shall mean the possession (direct or indirect) by one Person (and/or such Person and its Affiliates) of day-to-day control of the activities of a Person. "Common Control" shall mean that two Persons are both Controlled by the same other Person or Persons. "Controlled", "Conh·olling Interest" and "Controlling" have correlative meanings. "Cure Period" shall have the meaning set forth in Section 9.01. "Custom Home" shall have the meaning set fotth in Section 2.05. "Default" shall have the meaning set fmth in Section 9.01. 5 Item #7.2.
"Developer" shall have the meaning set forth in the introductory paragraph preceding the Recitals and shall include its permitted successors and assigns. "Development Agreement Statute" shall have the meaning set forth in Recital A. "Effective Date" shall have the meaning set forth in Section 2.01. The Parties acknowledge and agree that the Effective Date is March 29, 2013. "EIR" shall mean the Final Environmental Impact Report for the Project approved by City on the Approval Date.
"Existing Project Approvals" shall have the meaning set forth in Recital G. "Federal/State Compliance Fees" shall have the meaning set forth in Section 5.02.B. "Fee Deposit Date" shall mean the date that is one hundred twenty (120) days following the Effective Date, which date shall be extended as set forth in Section 9.06 where delays are due to Force Majeure.
"Fee Payment Date" shall mean the date that is ninety-one (91) days following the Fee Deposit Date, which date shall be extended as set forth in Section 9.06 where delays are due to Force Majeure.
"Fees and Exactions" shall mean a monetary or other exaction including in-kind contributions, other than a tax or special assessment, that is charged by City in connection with the Property, the Project, any Project Approval or this Agreement. "Force Majeure" shall mean the period required to extend the performance of a Party under this Agreement due to: war; acts of terrorism; insurrection; strikes or lock-outs not caused by, or outside the reasonable control of, Developer; riots; floods; earthquakes; fires; casualties; acts of nature; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; previously unknown environmental conditions discovered on or affecting the Property, the Project or any portion of either, including any delay caused or resulting from the investigation or remediation of such conditions; litigation or a referendum that enjoins construction or other work on the Property, the Project or any portion of either; litigation or a referendum that challenges this Agreement or the Existing Project Approvals; unusually severe weather; a development moratorium, as defined in section 66452.6(-f) of the California Government Code, extending the expiration date of a tentative subdivision map; failure of City to file a Notice of Determination with respect to the Project EIR in accordance with all applicable laws and regulations and in any event within five (5) days of the Approval Date; litigation regarding the EIR or any other environmental review of the Project; any governmental entity's failure to act in accordance with federal, state or local regulations or, where there is no time-frame legally required, in accordance with that governmental entity's reasonable standard practice and custom; or a Default of this Agreement by the other Party.
"General Plan" shall have the meaning set forth in Recital D. "General Plan Resolution" shall have the meaning set forth in Recital D. 6 Item #7.2.
"Initial Fees" shall mean, collectively, the Traffic Impact Fee, the Quality of Life Fee, the Public Safety Fees, the Initial In-Lieu Housing Fee and the Water Service Connection Fee, in each case to the extent payable as of the Fee Payment Date. "Initial In-Lieu Housing Fee" shall have the meaning set forth in Section 5.02.D(l}. "Initial Term" shall have the meaning set forth in Section 2.03. "Mortgage" shall have the meaning set forth in Section 6.01. ''Mortgagee" shall have the meaning set forth in Section 6.01. "Mortgagor" shall have the meaning set forth in Section 6.01. "New City Law" shall mean City's laws, rules, regulations, official policies, standards and specifications, including those enacted or imposed by a citizen-sponsored initiative or referendum or by the City Council directly or indirectly in connection with any proposed initiative or referendum, in each case to the extent amended or otherwise imposed following the Approval Date.
"Off-Site Improvements" shall mean, individually or collectively as the context requires, the Off-Site Wastewater Improvements and the Off-Site Water Improvements. "Off-Site Improvements Maximum Projected Cost" shall mean (i) with respect to the Off-Site Wastewater Improvements, four million nine hundred ninety three thousand one hundred ninety four dollars ($4,993,194) and (ii) with respect to the Off-Site Water Improvements, one hundred fifty eight thousand seven hundred thirty dollars ($158,730). "Off-Site Improvements Outside Date" shall mean the date that is three (3) years following the Fee Payment Date.
"Off-Site Wastewater Improvements" shall have the meaning set forth in Section .U l.B.
"Off-Site Water Improvements" shall have the meaning set forth in Section 3.11.C. "Party" and "Parties" shall have the meaning set forth in the introductory paragraph preceding the Recitals.
''Person" shall mean any natural person or a corporation, partnership, trust, limited liability company, limited liability partnership or other entity. "Pine Street Lift Station Upgrades" shall have the meaning set forth in Section 3.1 LB. "Processing Fees" shall have the meaning set forth in Section 5.02.A(l ). "Project" shall have the meaning set forth in Recital D. 7 Item #7.2.
"Project Approvals" shall mean, individually or collectively as the context requires, the Existing Project Approvals and the Subsequent Project Approvals. "Projected Water Demand" shall have the meaning set forth in Section _4.03. "Property" shall have the meaning set forth in Recital C. "Public Safety Fees" shall have the meaning set forth in Section 5.02.C(l). "Public Safety Water Line Improvements" shall have the meaning set forth in Section
3.11.C.
"Quality of Life Fee" shall have the meaning set forth in Section 5.02.C(2). "Residence Club" shall have the meaning set forth in Section 2.05. "Resort Hotel" shall have the meaning set forth in Section 2.05. "Resort Occupancy Date" shall mean the date on which a certificate of occupancy is issued by City with respect to the Resort Hotel.
"Site Map'' shall have the meaning set forth in Recital C. "Subdivision Map Act" shall have the meaning set forth in Section 3.07. "Subsequent Discretionary Approvals" shall have the meaning set forth in Section
7.01.B.
"Subsequent Ministerial Approvals" shall have the meaning set forth in Section 7.01.A. "Subsequent Project Approvals" shall have the meaning set forth in Recital H, and include (and are limited to) Subsequent Discretionary Approvals and Subsequent Ministerial Approvals.
"Supplemental In-Lieu Housing Fee" shall have the meaning set forth in Section
5.02.D(2).
"Term" shall have the meaning set forth in Section 2.02. "Term Extension" shall have the meaning set forth in Section 2.04. "TOT" shall have the meaning set forth in Section 2.04. "Traffic Impact Fee" shall have the meaning set forth in Section 5.02.C 3 . "Transient Lodging Use" shall have the meaning set fmth in Section 2.03. "Vesting Tentative Map" shall have the meaning set forth in Recital G. 8 Item #7.2.
"Washington Street Main Wastewater Trunk Line" shall have the meaning set forth in Section 3.1 l.B.
"Water Check~In Date" shall mean the date that is three (3) years from the Resort Occupancy Date.
"Water Service Agreement" shall have the meaning set forth in Section 4.05. "Water Service Connection Fee" shall have the meaning set forth in Section 4.03.
ARTICLE 2. EFFECTIVE DATE AND TERM
Section 2.01 Effective Date. This Agreement shall become effective upon the date that the ordinance approving this Agreement becomes effective (the "Effective Date").
Section 2.02 Term. The "Term" of this Agreement shall be the Initial Term together with any Term Extension(s). In no event shall the Term exceed ten (10) years.
Section 2.03 Initial Term. The Term of this Agreement shall commence upon the Effective Date and shall extend for a period of five (5) years thereafter (such period, the "Initial Term").
Section 2.04 Term Extensions. City and Developer agree that it may be desirable for the Initial Term to be extended. Accordingly, Developer may request in writing that City extend the Initial Term for up to five (5) additional one (1) year periods (each such period, a "Term Extension"). Such written request may be delivered to City not earlier than two hundred seventy (270) days nor later than sixty (60) days prior to the expiration of the then-current Term. Any such request shall be subject to the consent of City acting through the City Manager, which approval City agrees it shall not unreasonably withhold, condition or delay. City shall provide such consent within thirty (30) days of City's receipt of any such request if as of the date of such receipt, Developer is (i) not in Breach (for the avoidance of doubt, City shall have delivered a Breach Notice with respect to any such Breach and Developer shall have not cured any such Breach as of the date of such receipt), or (ii) in Breach (for the avoidance of doubt, City shall have delivered a Breach Notice with respect to any such Breach as of the date of such receipt), but Developer cures such Breach prior to the end of such thirty (30) day period. If the Initial Term of this Agreement is extended in accordance with this Section 2.04, City shall promptly record in the Official Records of Napa County, California an instrument giving notice of the Tenn Extension.
Section 2.05 Project Integration and Description. The Parties intend that the Property be developed as a single, integrated Project. Accordingly, this Agreement and the Existing Project Approvals shall permit the development and use of a mixed use luxury resort expected to include: (a) a boutique hotel (the "Resort Hotel") consisting of up to one hundred ten (110) keys, intended to be primarily (but not exclusively) for transient occupancy use, and expected to include lobbies, common areas, restaurants and other food and beverage concessions, various retail facilities, one or more pools and various other recreational areas and facilities, a spa, a fitness center, meeting spaces, back of house areas and facilities, private roadways and 9 Item #7.2.
walkways, open and landscaped areas, utilities facilities and general infrastructure; (b) up to twenty (20) residence club homes (the "Residence Club") that may be owned or used as whole ownership, fractional interest ownership (which, for purposes of this Agreement, is defined as the right to occupy a Residence Club home coupled with a fractional fee ownership interest in the Residence Club or in a specific Residence Club home together with an undivided ownership interest in the common areas appurtenant to the Residence Club), equity club, non-equity club and any other type of residence club, fee interest and/or any shared ownership real estate product recognized by the California Department of Real Estate except that time-share ownership (which, for purposes of this Agreement, is defined as the right to use and occupy a Residence Club home on a recurring basis but which is not coupled with a fractional fee ownership interest in the Residence Club or a specific Residence Club home) is expressly disallowed (and regardless of the ownership type, Developer may rent any unsold interests (the fraction size and type of shared ownership to be determined by Developer in its sole discretion, provided that time-share ownership is expressly disallowed) and including related amenities (including dedicated owner areas such as check-in areas, common areas, pool and other recreational areas and facilities, clubhouse and/or other owner-dedicated areas and facilities (which may include food services, retail, recreation and other related facilities)); and (c) up to thirteen (13) custom homes lots on which it is intended that purchasers would construct custom designed luxury homes ("Custom Homes") in accordance with design guidelines established by Developer or, in Developer's discretion, Developer may construct and sell completed homes on such lots, but, in any event, such homes may be owned as whole ownership, or fee interest and including related amenities including dedicated owner areas such as check-in areas, common areas, pool and other recreational areas and facilities, clubhouse and/or other owner-dedicated areas and facilities (which may include food services, retail, recreation and other related facilities).
Section 2.06 Developer Representations and Warranties. Developer represents and warrants to City that, as of the Approval Date:
A. Developer is the sole fee owner of the Property, and to the knowledge of Developer no other Person holds any legal or equitable interests in the Property other than those recorded against the Property as reflected in the Official Records of Napa County, California; B. Developer: (i) is organized and validly existing under the laws of the State of Delaware; (ii) to the extent required, has qualified and been authorized to do business in the State of California and has complied with all requirements pertaining thereto; (iii) to the extent required, is in good standing and has all necessary powers under the laws of the State of California to own property and enter into and perform the undertakings and obligations of Developer under this Agreement; and (iv) is not in default with respect to payment of any general or special property taxes or assessments or other property based fees allocable to the Property;
C. No approvals or consents of any persons are necessary for the execution, delivery or performance of this Agreement by Developer, except as have been obtained; D. The execution and delivery of this Agreement have been duly authorized by all necessary corporate action; and
10 Item #7.2.
E. This Agreement is a valid obligation of Developer and is enforceable in accordance with its tem1s.
ARTICLE 3. DEVELOPMENT OF PROPERTY AND OPERATION OF RESORT HOTEL
Section 3.01 Vested Rights. The Property is hereby made subject to the provisions of this Agreement. Developer shall have the vested right to develop the Property and the Project in accordance with and subject to the Existing Project Approvals, the Subsequent Project Approvals, Applicable City Law and this Agreement, which shall control the pennitted uses, density and intensity of use of the Property and the maximum height and size of buildings on the Property.
Section 3.02 Applicable City Law. The Parties acknowledge and agree that City is restricted in its authority to limit its police power by contract and that the limitations, reservations and exceptions contained in this Agreement are intended to reserve to City all of its police power that cannot be so limited. This Agreement shall be construed to reserve to City all such power and authority that cannot be restricted by contract. Notwithstanding the foregoing reservation of City, it is the intent of City and Developer that this Agreement be construed to provide Developer with the maximum rights afforded by law, including but not limited to, the Development Agreement Statute. Therefore, regardless of any future action by City, whether by ordinance, resolution, initiative or otherwise, the only laws, rules, regulations, official policies, standards and specifications of City applicable to the development of the Property and/or the Project shall be (collectively, "Applicable City Laws"):
(1) Those rules, regulations, official policies, standards and specifications of City set forth in the Project Approvals and this Agreement; (2) With respect to matters not addressed by and not otherwise inconsistent with the Project Approvals and this Agreement, those laws, rules, regulations, official policies, standards and specifications (including City ordinances and resolutions) governing permitted uses, building locations, timing and manner of construction, densities, intensities of uses, design, heights and sizes, requirements for on- and off-site infrastructure and public improvements, fees and exactions; in each case to the extent in full force and effect on the Approval Date;
(3) New City Laws that relate to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals and any other matter of procedure imposed at any time, provided such New City Laws are uniformly applied on a city~wide basis to all substantially similar types of development projects and properties;
(4) New City Laws that revise City's uniform construction codes, including City's building code, plumbing code, mechanical code, electrical code, fire code, grading code and other unifonn construction codes, as of the date of permit issuance, provided, that such New City Laws are unifonnly applied on a city-wide basis to all substantially similar types of development projects and properties;
11 Item #7.2.
(5) New City Laws that are necessary to protect physical health and safety of the public; provided, that such New City Laws are uniformly applied on a city-wide basis to all substantially similar types of development pr~jects and properties; (6) New City Laws that do not conflict with this Agreement or the Project Approvals, provided such new City Laws are uniformly applied on a city-wide basis to all substantially similar types of development projects and properties. Without limiting the generality of the foregoing, New City Laws will be deemed to conflict with the Agreement under this Section 3.02(6) if they: limit or reduce the density or intensity of development; limit or reduce the height or bulk of development on the Property, or any part thereof, or of individual proposed buildings or other improvements thereon; materially change, restrict, or condition any land uses, including permitted or conditional uses, of development within the Property; materially limit or control the rate, timing, phasing, or sequencing of approval, development, or construction (including demolition); conflict with the Project Approvals; materially limit or control the availability of public utilities, services or facilities or any privileges or rights to public utilities, services or facilities for the Property, including to water rights, water connections, sewage capacity rights and sewer connections; control or limit commercial or residential rents or purchase prices; materially increase the cost of construction or maintenance of all or any development permitted or contemplated on the Property or of compliance with any provision of this Agreement or any Project Approval; or impose any new Fees and Exactions or expand or increase Fees and Exactions; and
(7) New City Laws that do not apply to the Property and/or the Project due to the limitations set forth above, but only to the extent that such New City Laws are accepted in writing by Developer in its sole discretion.
Section 3.03 Pre aration of Pro'ect A rovals and A licable Ci Laws. Promptly following the Approval Date, the Parties, at Developer's sole cost and expense, shall use their respective good faith efforts to prepare two (2) sets of the Project Approvals and Applicable City Laws in full force and effect on the Approval Date, one (1) set for City and one ( 1) set for Developer, to which the Parties shall endeavor in good faith to add from time to time, Subsequent Project Approvals, so that if it becomes necessary in the future to refer to any of the Project Approvals or Applicable City Law, there will be a common set available to the Parties.
Failure to include ( or to agree on what to include) in the sets of Project Approvals and Applicable City Law any Subsequent Project Approvals or New City Laws that constitute Applicable City Law shall not affect the applicability of any such Subsequent Project Approvals or New City Laws.
Section 3.04 Development Timing. The Parties acknowledge that Developer cannot at this time predict what portions of the Project will be included within any phase of the Project, when or the rate at which the phases will be developed or the order in which each phase will be developed. Such decisions depend upon numerous factors that are not within the control of Developer, such as market orientation and demand, interest rates, absorption, completion, availability of financing and other similar factors. In particular, and not in any limitation of any of the foregoing, since the California Supreme Court held in Pardee Construction Co. v. The City of Camarillo, 37 Cal.3d 465 (1984), that the failure of the parties therein to consider and expressly provide for the timing of development resulted in a later-adopted initiative restricting 12 Item #7.2.
the timing of development prevailing over such parties' agreement, it is the Parties' desire to avoid that result by acknowledging that, unless otherwise provided for in this Agreement, Developer's vested rights W1der this Agreement include the right to develop the Property and the Project in such order and at such rate and at such times as Developer deems appropriate in the exercise of its discretion, subject to the terms, requirements and conditions of the Existing Project Approvals and this Agreement.
Section 3.05 Regulation by Other Public Agencies. City and Developer acknowledge and agree that other governmental or quasi-governmental entities not within the control of City possess authority to regulate aspects of the development of the Property and the Project and that this Agreement does not limit the authority of such other public agencies. City shall cooperate with Developer in Developer's effort to obtain such permits and approvals as may be required by other governmental or quasi-governmental entities in connection with the development of, or the provision of services to, the Property and/or the Project; provided, however, City shall have no obligation to incur any costs, without compensation or reimbursement, or to amend any City policy, regulation or ordinance in connection therewith.
Section 3.06 Life of Project Approvals. The term of any and all Project Approvals shall automatically be extended for the longer of the Term or the term otherwise applicable to such Project Approvals. Without limiting the generality of the foregoing, pursuant to the Subdivision Map Act, any vesting or tentative maps heretofore or hereafter approved in connection with development of the Project or the Property, shall be extended for the Tenn (and may be subject to other extensions provided under the Subdivision Map Act).
Section 3.07 Vesting Tentative Map§_. If the Vesting Tentative Map or any tentative map hereafter approved in connection with development of the Property is a vesting map under the Subdivision Map Act, Government Code§§ 66410 et seq. ("Subdivision Map Act"), and if this Agreement is determined by a final judgment to be invalid or unenforceable insofar as it grants a vested right to Developer for development of the Project, then and to that extent all rights and protections afforded Developer under the laws and ordinances applicable to vesting maps shall survive.
Section 3.08 Developer's Right to Rebuild. City agrees that Developer may renovate or rebuild portions of the Project at any time within the Term should it become necessary due to any casualty, including natural disaster or changes in seismic requirements. Such renovations or reconstruction shall be processed as a Subsequent Project Approval consistent with all prior Project Approvals and Applicable City Law. Any such renovation or rebuilding shall be subject to all design, density and other limitations and requirements imposed by this Agreement, and shall comply with the Project Approvals, Applicable City Law, and the requirements of CEQA.
Section 3.09 Environmental Mitigation. The Parties understand that the EIR is intended to be used not only in connection with the Existing Project Approvals, but also in connection with the Subsequent Project Approvals needed for the Project. Consistent with the CEQA streamlining policies applicable to specific plans, including but not limited to California Code of Regulations Title 14, Section 15182, City agrees to use the EIR in connection with the processing of any Subsequent Project Approval to the maximum extent allowed by law and consistent with the requirements of CEQA. Further, City shall rely on the exemption referenced 13 Item #7.2.
in CEQA Guideline 15182 to the fullest extent permitted by law. To the extent supplemental or additional environmental review is required in connection with Subsequent Project Approvals, Developer acknowledges that City may require additional mitigation measures that were not foreseen as of the Approval Date.
Section 3.10 State and Federal La\"{. As provided in Section 65869.5 of the Development Agreement Statute, this Agreement shall not preclude the applicability to the Project of changes in laws, regulations, plans or policies, to the extent that such changes are specifically mandated and required by changes in State or Federal laws or by changes in laws, regulations, plans or policies of special districts or other governmental entities, other than City, created or operating pursuant to the laws of the State of Califomia ("Changes in the Law"). In the event Changes in the Law prevent or preclude, or render substantially more expensive or time consuming, compliance with one (I) or more provisions of this Agreement, the Parties shall meet and confer in good faith in order to detennine whether such provisions of this Agreement shall be modified or suspended, or performance thereof delayed, as may be necessary to comply with Changes in the Law. Nothing in this Agreement shall preclude City or Developer from contesting by any available means (including administrative or judicial proceedings) the applicability to the Project any such Changes in the Law. If Changes in the Law preclude or substantially prevent or preclude, or render substantially more expensive or time consuming, performance of this Agreement in a manner that makes the Project economically infeasible, Developer, in its sole and absolute discretion, may terminate this Agreement by providing written notice thereof to City.
Section 3.11 Public Improvements.
A. General. Developer shall reserve and dedicate land for and shall construct all public improvements required by the Project Approvals and this Agreement.
B. Off-Site Wastewater Improvements. Prior to the Off-Site Improvements Outside Date, Developer shall install the "Washington Street Main Wastewater Trunk Line" and "Pine Street Lift Station Upgrades" (each as generally described in the Adobe Report) (collectively, the "Off~Site Wastewater Improvements").
C. Off-Site Water Improvements. Prior to the Off-Site Improvements Outside Date, Developer shall install the "Public Safety Water Line Improvements" (as generally described in the Adobe Report) (the "Off-Site Water Improvements").
D. Cost Sharing for Off-Site Improvements. If City installs (or causes another project to install) all or any portion of the Off-Site Improvements in connection with another project(s) approved by City, then Developer's obligations under Sections 3.11.B and r;_ shall tem1inate with respect to such portion. Developer shall instead pay to City a pro rata share of the construction costs thereof, determined by the reasonably projected use of such Off-Site Improvements by Developer and such other project(s), respectively, of the three (3) separate sections thereof as shown on the Adobe Technical Memo Key Map attached hereto as Exhibit D (the "Adobe Report") and as follows:
14 Item #7.2.
(1) Section #1 = 20% of Off-Site Improvements: Off-Site Improvements from Pine Street lift station to the comer of Anna Street and the old railroad gravel access road;
(2) Section #2 = 40% of Off-Site Improvements: Off-Site Improvements from corner of Anna Street along old access road to crossing over to Washington Street to the sanitary sewer man hole (SSMH) adjacent to the Palisades lift station; and (3) Section #4 = 40% of of Off-Site Improvements: Off-Site Improvements from sanitary sewer man hole (SSMH) adjacent to the Palisades lift station to connection at the wastewater treatment plant.
E. Subdivision improvement Agreement.. Prior to commencing the Off-Site Water Improvements and the Off-Site Wastewater Improvements, Developer and City shall enter into a Subdivision Improvement Agreement to address, among other things, security, warranty and acceptance. Such Subdivision Improvement Agreement shall be on City's standard form, subject to such revisions thereto as may be approved by City and Developer. Such agreement shall provide that: all Off-Site Improvements, once inspected and approved by City in accordance therewith, shall become the property of City and will be maintained by City; any security provided therefor shall be limited to that required by state law and the Applicable City Laws; City shall provide Developer with any rights of access to property City controls that is required in order for Developer to install the Off-Site Improvements at no cost to Developer; and Developer may acquire any additional easement or property interests that would facilitate the construction of the Off-Site Improvements, provided that failure to acquire such interests shall not modify the obligation to complete the Off-Site Improvements or the timeframe for completion thereof, unless approved in writing by the City Manager.
F. Increased Costs for Off-Site Improvements. If the projected or actual cost to Developer of installing the Off-Site Water Improvements or the Off-Site Wastewater Improvements is at any time in excess of the Off-Site Improvements Maximum Projected Costs therefor, then City and Developer may agree, in their respective sole and absolute discretion, to appropriate revisions to the Off-Site improvements or identify alternative funding sources. This Section 3 .11.F shall not revise Developer's obligations with respect to the Off-Site Improvements unless and until City and Developer expressly agree to any such revisions.
Section 3.12 Operational Requirements. Prior to issuance .of a building permit for the Resort Hotel, Developer and City shall enter into an Operational Agreement with a term of thirty (30) years from the Approval Date to be recorded against the portion of the Property containing the Resort Hotel, in the form attached hereto as Exhibit E, together with such changes as may be reasonably approved by the City Manager (on behalf of City) and Developer.
ARTICLE 4. WATER ALLOCATIONS AND USE
Section 4.01 Alloc~tion of Water and Wastewater Services. City hereby agrees that the Project shall be and hereby is deemed to be exempt from the City Growth Management System pursuant to Section l 9.020.050(F) of City's Municipal Code and that the water and sewer service allocations set forth herein are hereby made to and for the benefit of the Project. City agrees that 15 Item #7.2.
unless prohibited by a moratorium lawfully adopted by another governmental agency not controlled by City, or by action taken by· City in accordance with this Agreement, no change in Applicable City Law shall reduce or eliminate these allocations.
Section 4.02 Will-Serve Obligation. The allocations of water and wastewater capacity set forth herein shall constitute the "will serve" obligation of City with respect to the Project.
This "will serve" obligation of City is vested by this Agreement. The water and wastewater allocations set forth herein shall constitute the Baseline (as defined in Municipal Code Section 13 .16.060) for the Project and any additional allocations shall be determined as set forth in Sections 4.03 and 4.05. This provision shall supersede any conflicting City codes or regulations in effect as of the Approval Date.
Section 4.03 Domestic and Emergency Potable Water. City agrees to provide the Project an annual allocation of thirty (30) acre feet of domestic and emergency potable water as defined under the Resource Management Services Code to service all Project uses. Developer may place a reservation in its discretion in the form of a surety bond for up to an additional twenty (20) acre feet annually that may be provided under City's Resource Management System, as provided herein (and may thereafter increase or decrease such reservation, up to twenty (20) acre feet, at its discretion). The surety bond will be released or proportionally reduced by City if Developer waives in writing its right to the reservation ( or a portion thereof). On or prior to the Fee Deposit Date, Developer shall pay (in accordance with Section 5.02.E), a connection fee of one million six thousand three hundred eighty dollars ($1,006,380) for the annual allocation of thirty (30) acre feet of water ("Water Service Connection Fee").
A. Promptly following the Water Check-In Date, City and Developer shall review the Project's average actual annual demand on water supplies (the "Actual Water Demand") against the projected demand of thirty (30) acre feet annually (the "Projected Water Demand") and adjust as follows:
(1) If the Actual Water Demand over the period between the Resort Occupancy Date and the Water Check•ln Date exceeds the Projected Water Demand, then within ninety (90) days after such determination is finally made, Developer shall pay to City the differential connection fees due at the generally applicable fee schedule in effect at the time and City shall increase the Project's allocation of water supply and the Baseline to the level of the Actual Water Demand (but not above thirty (30) acre feet of water annually plus any amount reserved under Section 4.03). For example, if the Actual Water Demand over the period between the Resort Occupancy Date and the Water Check-In Date is forty (40) acre feet of water under Section 4.03, Developer has reserved at least an additional ten (10) acre feet of water, and the fee schedule in effect at the time provides for a fee of thirty eight thousand four hundred sixty three dollars ($38,463) per additional acre foot of water annually, then Developer shall pay to City an amount equal to three hundred eighty four thousand six hundred thirty dollars ($384,630) (40- 30=10; 10 * $38,463 = $384,630).
(2) If the Actual Water Demand over the period between the Resort Occupancy Date and the Water Check-In Date is less than the Projected Water Demand, then City shall give Developer a rebate in an amount equal to thirty three thousand five hundred forty six dollars ($33,546) multiplied by the difference between the Projected Water Demand and the 16 Item #7.2.
Actual Water Demand and City shall decrease the Baseline accordingly. For example, if the Actual Water Demand over the period between the Resort Occupancy Date and the Water Check-In Date is twenty five (25) acre feet of water, then City shall pay to Developer an amount equal to one hundred sixty seven thousand seven hundred thirty dollars ($167,730) (30-25=5; 5 * $33,546 = $167,730).
B. Prior to the review described in Section 4.03.A, Developer may not purchase domestic and emergency potable water allocation for the Project above fifty (50) acre feet of water annually. After the Water Check-In Date, Developer may apply from time to time for additional domestic and emergency potable water allocation above fifty (50) acre feet of water annually and such application may be approved as provided under the terms of City's Growth Management System.
C. Subject to compliance with State law, Developer shall have the right to be a purveyor of water to users within the Property, including through the utilization of meters serving all or any portion of the Property or the Project.
D. As part of its development of the Project, Developer shall install two (2) separate metered water pumps at City connection point (i) one (1) that is solely dedicated to day-to-day water services for the Property and the Project and refill of any on-site reservoir and (ii) one (1) that is dedicated to emergency services as outlined the Adobe Report prepared in connection with the approval of this Agreement.
Section 4.04 Wastewater.
A. Char~. City agrees to charge the Project the Transient General Rate for monthly treatment services as incorporated in City's wastewater service rate matrix. The Project will not be subject of any present or future connection fees for wastewater service up to sixty (60) acre feet of discharge annually. Developer may apply from time to time for additional wastewater allocation beyond the sixty (60) acre feet annually and such applications may be approved as provided under the terms of City's Growth Management System.
B. Greywater Systems; Meters.
(1) Subject to Applicable City Law, Developer may, but shall not be required to, install "greywater systems" for use within the Property, potentially including for landscape uses to, among other things, reduce the amount of wastewater discharged to City. City encourages such uses.
(2) Developer may, at its expense, place meters at appropriate discharge points within the Property to monitor and measure the amount of wastewater effluent discharged to City.
Section 4.05 Separate Watey__Agreement. If the Water Check-In Date and the above procedures related thereto have not occutTed prior to any expiration of the Tenn, upon the request of either Party, City and Developer shall work together in good faith to prepare and execute a separate agreement ensuring their respective ability to exercise their respective rights 17 Item #7.2.
and perform their respective obligations under this Article 4 notwithstanding any such expiration (a "Water Service Agreement").
ARTICLE 5. TAXES AND ASSESSMENTS; FEES AND EXACTIONS; FINANCING
MECHANISMS
Section 5.01 Taxes and Assessments.
A. Generally. Subject to this Agreement, City may impose and Developer agrees to pay any new, increased or modified taxes and assessments imposed in accordance with the laws then in effect, but only if such taxes and assessments are equally applied on a city-wide basis and have a uniform and proportionate effect on a broadly based class of land, projects or taxpayers, as applicable, within City.
B. Transient Occupancy Taxes. Notwithstanding Section 5.01.A, TOT shall be paid with respect to the Resort Hotel, the Residence Club, and the Custom Home uses only for short term transit uses (i.e., with respect to short term transient rental to third-party renters); provided however, with respect to the Residence Club and the Custom Homes> TOT shall not apply to use by owners or their guests, exchange users (i.e., users who exchange use time in another residence or unit for use time in a Residence Club unit), or leases having a continuous tenn of greater than thirty (30) days.
Section 5.02 Fees and Exactions. Notwithstanding Section 5.01.A, the following are the only Fees and Exactions applicable to the Property and the Project, which shall be applied without duplication.
A. Processing Fees and Consultant Fees.
(l) City may charge, and Developer agrees to pay, all reasonable processing fees imposed from time to time by City to cover the actual costs to City of processing applications for Project Approvals ("Processing Fees"), as such fees are uniformly applied on a city-wide basis to all substantially similar types of development projects. City shall use reasonable efforts to minimize Processing Fees.
(2) City may charge, and Developer agrees to pay, all reasonable, outof-pocket costs (without an administration or carrying charge) to City of engaging such thirdparty consultants (including architects) as City may reasonably deem necessary to assist City in processing applications for Project Approvals ("Consultant Fees"). City shall cooperate with Developer in establishing a scope of work and budget(s) for any third-party consultants prior to engaging such consultants, however the final scope and budget shall be at City's reasonable discretion in light of the size, type and complexity of the Project and the subject Project Approval. City shall use reasonable efforts to minimize Consultant Fees. (3) AH Processing Fees and Consultant Fees shall be billed by City in a prompt and efficient manner, and in reasonable detail, including a general description of the services perfom1ed. Any bills for Processing Fees and Consultant Fees shall be paid within thirty (30) days of Developer's receipt thereof, subject to Article 9. 18 Item #7.2.
B. Federal/State Compliance Fees. City may charge and Developer agrees to pay any new, increased or modified Fees and Exactions that are uniformly applied on a city-wide basis to all substantially similar types of development projects and are reasonably necessary to comply with the requirements of any Federal or State statute or regulation that is enacted or adopted after the Effective Date ("Federal/State Compliance Fees").
C. Impact Fees. Developer shall pay the development impact fees in the amount and at the time set forth below in addition to those fees and charges set forth in Section 3.11.D (if any) and Article 4. No other development impact fees of City shall apply to the Project, except as provided by New City Laws permitted under Section 3.02. (1) Public Safety Fees. First, on or prior to the Fee Payment Date, Developer shall pay (in accordance with Section 5.02.E)> one hundred two thousand nine hundred twenty five dollars ($102,925) and second, within thirty (30) days following City's issuance of the first grading permit for the Off-Site Improvements, Developer shall pay or cause to be paid to City an additional one hundred two thousand nine hundred twenty five dollars ($102,925), collectively as the "Public Safety Fees".
(2) Quality of life Fees. On or prior to the Fee Payment Date, Developer shall pay (in accordance with Section 5.02.E) two hundred sixty four thousand dollars ($264,000) as the "Quality of Life Fee".
(3) Trqffic Impact Fees. On or prior to the Fee Payment Date, Developer shall pay (in accordance with Section 5.02.E), two hundred sixty seven thousand seven hundred ninety five dollars ($267,795) as the "Traffic Impact Fee", as contemplated by Mitigation Measures Trans-1 and Trans-2 in the Mitigation Measures adopted for the Project in connection with the approval of the EIR.
The Parties agree that as of the Approval Date, Developer has paid seven hundred eighty thousand five hundred dollars ($780,500) for the "Diamond Hill Estates" subdivision, which amount shall be deducted from amounts otherwise due on or prior to the Fee Payment Date. For the convenience of the Parties, a table reflecting the above fees is attached hereto as Exhibit C.
In the event of a conflict between the body of this Agreement and Exhibit C, the body shall prevail.
D. In-Lieu Housing Fee.
(1) On or prior to the Fee Payment Date, Developer shall pay or cause to be paid to City three hundred forty three thousand twenty five dollars ($343,025) as an in-lieu affordable housing fee (the "Initial In-Lieu Housing Fee"). (2) On or prior to the date that is thirty (30) days after issuance of the initial residential building permit for each Custom Home, Developer shall pay eighteen thousand dollars ($18,000) as an additional in-lieu affordable housing fee ( each, a "Supplemental In-Lieu Housing Fee"); provided, that (i) Developer's obligations under this Section 5.02.D shall be Developer's exclusive affordable housing obligation and shall be deemed to satisfy Developer's obligations under City's inclusionary zoning ordinance (City Municipal Code Chapter 17.08), 19 Item #7.2.
and (ii) Developer's aggregate Supplemental In-Lieu Housing Fees shall not exceed two hundred two hundred thirty four thousand dollars ($234,000). Subject to the consent of City and Developer in their respective sole and absolute discretion, this fee shall be waived if Developer provides funds to a third-party at a comparable or higher value for off-site construction of and/or land acquisition for one or more off-site affordable housing projects.
E. Payment of Initial Fees. The Initial Fees shall be deposited in an escrow with a title company approved by Developer and City on or prior to the Fee Deposit Date~ with instructions signed by the Parties providing that the Initial Fees ( and interest earned thereon, if any) shall be paid to the City on the earlier of: (a) the Fee Payment Date; or (b) the date that Developer pulls any permits for the grading or construction of the Project; and further providing that the Initial Fees (and interest earned thereon, if any) shall be returned to Developer upon any termination of this Agreement in accordance with Section 9. 03. All costs of such escrow shall be paid by Developer.
Section 5.03 Financing M~gianisms for Public/Private Improvements. Developer agrees and understands that is shall not be eligible to establish a local benefit district for reimbursement for the cost of Off-Site Improvements.
ARTICLE 6. MORTGAGEE PROTECTION
Section 6.0 l Mortgagee Protection. Developer and any Assignee ( collectively and individually, as the case may be, a "Mortgagor") shall have the right, at any time and from time to time during the Tenn, to grant a mortgage, deed of trust or other security instrument (each a "Mortgage") encumbering all or any portion of Mortgagor's ownership interest in the Property for the benefit of any Person, including any deed of trust beneficiary or mortgagee (together with its successors in interest, a "Mortgagee"), as security for one or more loans related to the Property and/or the Project, or any portion of either. Notwithstanding the foregoing, this Agreement shall be superior and senior to any lien placed upon the Property or any portion thereof after the date of recording the Agreement, including the lien of any Mortgage. No breach of this Agreement shall defeat, render invalid, diminish or impair the lien of any Mortgage made in good faith and for value, but all of the terms and conditions contained in this Agreement shall be binding upon and effective against and shall run to the benefit of any Mortgagee who acquires title or possession to the Property, or any portion thereof, by foreclosure, trustee's sale, deed in lieu of foreclosure, lease termination, eviction or similar means of foreclosure. City shall cooperate reasonably with any Mortgagors or prospective Mortgagors in confirming or verifying the rights and obligations of a Mortgagee or Mortgagor under this Agreement.
Section 6.02 Mortgagee Not Obligated. No Mortgagee shall have any obligation or duty under this Agreement to construct or complete the construction of improvements, or to guarantee such construction or completion. Upon acquisition of the Property or any portion thereof pursuant to the terms of a Mortgage, the Mortgagee may elect to terminate this Agreement by providing written notice thereof to City or may develop and operate the Property and the Project under, and subject to, this Agreement. If Mortgagee, or any Person that acquires the Property or any portion thereof from Mortgagee, elects to develop and operate the Property and the Project under, and subject to, this Agreement, City and such Mortgagee or Person shall 20 Item #7.2.
work together in good faith to make such amendments as may be reasonably necessary for the Parties to effectuate the terms and obligations of this Agreement.
Section 6.03 Notice of Default to Mortgagee. If City receives a notice from a Mortgagee requesting a copy of any Breach Notice or other notice of default glven to Developer under this Agreement and such notice specifies the address for service thereof to Mortgagee, then City agrees to deliver to such Mortgagee, concurrently with service thereon to Developer, any such Breach Notice or other notice of default given to Developer under this Agreement.
Each Mortgagee shall have the right during the same period available to Developer to cure or remedy, or to commence to cure or remedy, the Breach or other default claimed. If a Mortgagee shall be required to obtain possession in order to cure any default, then vis-a-vis the Mortgagee, the time to cure shall be tolled so long as the Mortgagee is attempting to obtain possession, including by appointment of a receiver or foreclosure but in no event may this period exceed one hundred twenty (120) days from City's notice.
ARTICLE 7. SUBSEQUENT PROJECT APPROVALS; AMENDMENTS;
COOPERATION
Section 7.01 Subsequent Project Approvals. Developer and City acknowledge and agree that Developer intends to submit applications for Subsequent Project Approvals, including both Subsequent Ministerial Approvals and Subsequent Discretionary Approvals. In connection with any Subsequent Project Approval, City shall exercise its discretion in accordance with Applicable City Law, the Project Approvals and this Agreement. Notwithstanding the foregoing, City shall not deny or unreasonably delay any Subsequent Project Approval that is necessary or desirable to the exercise of the rights vested in Developer by this Agreement, including construction, occupancy and use of the vested development. Any conditions, terms, restrictions and requirements for subsequent discretionary actions imposed or required by City, including those provided for herein, shall not prevent development of the Property for the uses and to the density or intensity of development set forth in this Agreement. City agrees that it will act on all applications for Subsequent Project Approvals as expeditiously as is reasonably feasible, consistent with Applicable City Law and the City's standard custom and practice.
A. Subsequent Ministerial Approvals ("Subsequent Ministerial Approvals") are permits or approvals that are required by Applicable City Law and that are to be issued upon compliance with unifom1, objective standards and regulations. They include applications for road construction permits or authorizations; grading and excavation permits; building permits, including electrical, plumbing, mechanical, Title 24 Electrical, and Title 24 Handicap permits or approvals; certificates of occupancy; encroachment permits; water connection permits; and any other similar permits required for the development and operation of the Project.
B. All other Subsequent Project Approvals, including amendments of the Project Approvals, site development plan approvals, improvement agreements, architectural review permits, use permits, lot line adjustments, subdivision maps, preliminary and final development plans, rezonings, development agreements, permits, resubdivisions, and any amendments to, or repealing of, any of the foregoing, are "Subsequent Discretionary Approvals".
21 Item #7.2.
C. In addition, certain other approvals or reviews, such as Covenants, Conditions and Restrictions (CC&Rs), Storm Water Pollution Prevention Plans (SWPPPs), Timber Harvest Plan, Wildland Fire Protection Plan, Photometric Plan, Hydrology Plan Update, Geotechnical Plan Update, Architectural and Building Plans, Landscape Plan, and Grading / Improvement Plans are required by the conditions of approval for the Project Approvals and the mitigation measures imposed on the Project and will be processed as required by the conditions or mitigation measures, as applicable, and federal, state or laws or regulations and the Applicable City Laws.
Section 7.02 Changes and Amendments to Proiect Approvals and this Agreement.
Given the long term build-out of the Project, the Parties acknowledge that modifications or amendments to the Project Approvals and/or this Agreement may be appropriate and mutually desirable, including in order to ensure the economic viability of the Project. In addition, Developer may after the Approval Date acquire additional real property within City for use in connection with the Project. Accordingly, subject to Applicable City Law and Section 10.07, the Parties shall work together in good faith to consider any modifications or amendments to any Project Approval and/or this Agreement proposed by a Party from time to time, including with respect to any modifications or amendments to include additional real property acquired by Developer.
Section 7.03 Approval Indemnity; Cooperation in the Event of Legal Challenge.
Developer shall indemnify, defend with counsel reasonably acceptable to City, and hold harmless City and its officials and employees from and against any and all litigation, claims, costs, damages, losses, or liabilities challenging the validity of this Agreement or the underlying CEQA action. In addition, Developer shall reimburse City, within thirty (30) days following City's written demand therefor, which may be made from time to time during the course of such litigation, all reasonable costs incurred by City in connection with the litigation challenge, including City's administrative, legal and court costs, in the event that City shall either: (a) elect to joint representation by Developer's counsel; or (b) retain an experienced litigation attorney.
In addition, City and Developer, at Developer's sole cost and expense, shall cooperate in the event of any court action instituted by a third party or other governmental entity or official challenging the validity of any provision of this Agreement, any Existing Project Approvals or any Subsequent Project Approvals and City shall, upon request of Developer, appear in the action and defend its approval of this Agreement and any Project Approval, except that City shall not be required to be an advocate for Developer. Nothing herein shall authorize Developer to settle such legal challenge on terms that would constitute an amendment or modification of this Agreement, any Existing Project Approvals or any Subsequent Project Approvals, unless such an1endment or modification is approved by City in accordance with the Applicable City Laws.
ARTICLE 8. ASSIGNMENTS
Section 8.01 No Amendment Required. No sale, transfer, ground lease, assignment or other conveyance of all or a portion of the Property, nor any Assignment in accordance with Section 8.02, shall require the amendment of this Agreement.
Section 8.02 Assignment.
22 Item #7.2.
A. Requirements. Developer shall not sell, transfer, assign or otherwise convey, in whole or in part (each, an "Assignment"), its rights or obligations under this Agreement to any Person (each, an "Assignee") without the consent of City, which City agrees it shall not unreasonably withhold, condition or delay; provided, that, no such consent shall be required for any Assignment of Developer's right or obligations under this Agreement to an Affiliate of Developer, although City shall be provided with a copy of the assignment and assumption or similar agreement effectuating such Assignment. Within fifteen (15) days of City's receipt of notice of any Assignment for which City's consent is required, City shall provide such consent if:
(I) City receives (i) a form of assignment and assumption or similar agreement effectuating such Assignment that clearly outlines the rights and obligations of Developer that are being Assigned and (ii) contact infonnation for Assignee; (2) for any such Assignment that occurs prior to the Fee Payment Date, (i) the Initial Fees have been paid in full (or deposited in escrow in accordance with Section 5.02.E) or (ii) City receives evidence that demonstrates to City's reasonable satisfaction that the Assignee or the Persons Controlling the Assignee have the financial resources necessary to pay any unpaid Initial Fees when due under this Agreement; (3) Developer is not in Default under this Agreement or the Assignee agrees to cure any Default;
( 4) for any such Assignment that includes the Resort Hotel portion of the Project and/or the Property, the Assignee assumes the rights and obligations of Developer under the Operational Agreement relating to such portion; and (5) for any such Assignment that occurs prior to the completion of the Off-Site Improvements, the Assignee assumes the rights and obligations of Developer with respect thereto, including those contained in any Subdivision Improvement Agreement.
B. Assignment of Agreement in Connection with Prope1ty Transfer.
Developer's rights and obligations under this Agreement shall run with the portions of the Property to which such rights and obligations relate. Accordingly, (i) Developer shall not sell, transfer, assign or otherwise convey any portion of the Property without making an Assignment of the rights and obligations under this Agreement that correspond to the portion being sold, transferred, assigned or otherwise conveyed and (ii) any Assignment of this Agreement in accordance with this Section 8.02 shall be coupled with a sale, transfer, assignment or other conveyance of the corresponding portion of the Property. Any sale, transfer, assignment or other conveyance of a portion of the Property shall be made in compliance with the Subdivision Map Act.
C. Effect of Assigmnent. Following any Assignment in accordance with this Section 8.02, the Assignee shall succeed to the rights and obligations of Developer with respect to the portion of this Agreement that were subject to such Assignment, and Developer shall continue to be obligated under this Agreement with respect to any other portions of this Agreement retained by Developer.
23 Item #7.2.
D. Release of Assigning Developer. Following any Assignment in accordance with this Section 8.02., Developer shall, automatically and without the need for further documentation, be released from its obligations under this Agreement with respect to the portion of this Agreement so Assigned and, upon Developer's request therefor, City shall confinn any such release in wiiting in a form reasonably approved by City and Developer.
E. Residence Club and Custom Home Purchasers. The burdens, obligations and duties of Developer under this Agreement shall not apply to any Person that acquires any interest in the completed Residence Club or the completed Custom Homes and no consent of City shall be required in connection with any such acquisition.
ARTICLE 9. DEFAULT; REMEDIES; TERMINATION; INDEMNITY
Section 9.01 Breach. The failure or delay by either Party to perform any tenn or provision of this Agreement shall constitute a breach of this Agreement. In the event of alleged breach of any term or provision of this Agreement (each, a "Breach"), the Party alleging such Breach (the "Alleging Party") shall give the other Party (the "Breaching Party") notice thereof specifying the nature of the Breach and the manner in which such Breach may be cured (the "Breach Notice"). The Breaching Party shall have thirty (30) days following receipt of the Breach Notice to cure such Breach; provided, that if such Breach may not be reasonably cured within thirty (30) days and within such thirty (30) days the Breaching Party commences to cw-e such Breach then such cure period shall be extended for so long as the Breaching Party diligently prosecutes such cure to completion, but, subject to ~ection 9.06, not to exceed one hundred twenty (120) days following receipt of the Breach Notice (any such period, the "Cure Period").
During the Cure Period, the Breaching Party shall not be in default under this Agreement. The failure of any Party to give notice of any Breach shall not be deemed to be a waiver of such Party's right to allege any such Breach or other Breach at any other time. If the Breaching Party has not cured a Breach for which it has received a Breach Notice within the Cure Period therefor, the Breaching Party shall be in default and a default shall be deemed to have occurred ("Default").
Section 9.02 Remedies.
A. During the pendency, and prior to cure, of a material Default by Developer as determined by City Council, City shall have the right to refuse to issue any permits or other approvals to which Developer would otherwise have been entitled pursuant to this Agreement.
This provision is in addition to and shall not limit any actions that City may take to enforce the conditions of the Project Approvals.
B. In the event of a Default by City or Developer, the Alleging Party shall have the right to tenninate this Agreement upon giving notice of intent to tenninate pursuant to Government Code Section 65868 and regulations of City implementing such section. Following notice of intent to terminate, the matter shall be scheduled for consideration and review in the manner set forth in Government Code Section 65867 and City regulations implementing such section. Following consideration of the evidence presented in such review before the City Council, the Alleging Party may give written notice oftennination of this Agreement to the other Party.
24 Item #7.2.
C. In the event of a Default by City or Developer, the Parties intend that the primary remedy for the Alleging Party shall be specific perfonnance of this Agreement. A claim for actual monetary damages against the Breaching Party may only be considered if specific performance is not granted by the court. In no event shall Developer or City be entitled to any consequential, punitive or special damages.
D. In addition to any other rights or remedies, either Party may institute legal action to cure, correct or remedy any Default, to enforce any covenants or agreements herein, to enjoin any threatened or attempted violation hereof, or to obtain any other remedies consistent with the purpose ofthis Agreement except as limited by Section 9.02.C.
Section 9.03 Termination Prior to Fee Payment Date. In addition to the right to terminate set forth in Section 9.02, Developer may terminate this Agreement on or prior to the Fee Payment Date. If Developer terminates this Agreement as set forth above, City may, in its discretion, rescind any Project Approvals and Developer agrees to waive any and all claims of any kind or nature related to such rescission.
Section 9.04 Enforceability of Agreement. City and Developer agree that unless this Agreement is amended or terminated in accordance with this Agreement, this Agreement shall be enforceabJe by any Party notwithstanding any change(s) in any applicable general plan, specific plan, zoning ordinance, subdivision ordinance or any other land use ordinances or building ordinances, resolutions or ordinances or other regulations adopted by City which changes, alters or amends the general plan, specific plan, zoning ordinance, subdivision ordinance or any other land use ordinances or building ordinances, resolutions or ordinances or other regulations applicable to the development of the Property at the time of the approval of this Agreement as provided by Government Code Sections 65866 and 65867.5.
Section 9.05 Periodic Review. Within sixty (60) days prior to each Annual Review Date, Developer shall submit a written request to City to undertake a review of Developer's good faith compliance with this Agreement. Such request shall be accompanied by evidence reasonably necessary to demonstrate Developer's good faith compliance with the provisions of this Agreement. Developer shall work with City in good faith in connection with any such review, including by providing such additional information as City may reasonably request in connection therewith. Failure of City to conduct the review shall be deemed a finding of good faith compliance. City shall undertake any such review in accordance with City's duly adopted procedures therefor.
Section 9.06 Delay Due to Force Majeure; Extension of Time of Performance. No Party shall be deemed to have breached any term or provision of this Agreement or be in default hereunder, and all performance and other dates specified in this Agreement shall be extended, where a Party fails to perform a tenn or provision of this Agreement due to Force Majeure. The occurrence of Force Majeure shall cause the date for performance of such terms or provisions to be extended for the period of the Force Majeure, which shall be deemed to commence and terminate as of the time of the commencement and termination, respectively, of the cause.
Section 9.07 Resolution of Disputes. With regard to any dispute involving the Project, the resolution of which is not provided for by this Agreement or Applicable City Law, the Parties 25 Item #7.2.
shall meet at the request of any Party at which meeting they shall attempt in good faith to resolve any such disputes. Nothing in this Section 9.07 shall in any way be interpreted as requiring that Developer and City reach agreement with regard to any such dispute, nor shall the outcome of these meetings be binding in any way on City or Developer unless expressly agreed to by City and Developer in writing.
Section 9.08 Surviving Provisions. In the event this Agreement expires or is earlier terminated, neither Party shall have any further rights or obligations hereunder, except for:
Section 9.09, which shall survive with respect to any Claims arising on or prior to the date of any such expiration or earlier termination; and, if the Water Check-In Date has not occurred prior to any expiration of the Term, Sections 4.03 and 4.05, which shall survive until the execution and delivery of the Water Service Agreement.
Section 9.09 Indemnity and Hold Harmless. Developer shall indemnify and hold City and its elected and appointed officers, agents, employees, and representatives harmless from and against any and all claims, costs, liabilities and damages (including reasonable, out-of~pocket attorneys fees and costs) (collectively, "Claims") for bodily injury, death, or property damage resulting directly or indirectly from the development and construction of the Project by or on behalf of Developer (including Developer's contractors, subcontractors, agents or employees) under this Agreement, except to the extent such Claims are caused by the active negligence or willful misconduct of City, its elected and appointed officers, agents, employees, representatives, contactors or subcontractors.
ARTICLE 10. MISCELLANEOUS PROVISIONS
Section 10.01 Findings. City hereby finds and determines that execution of this Agreement furthers public health, safety and general welfare and that the provisions of this Agreement are consistent with the General Plan.
Section 10.02 Severability. If any term or prov1s1on of this Agreement, or the application of any term or provision of this Agreement to a particular situation, is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining tenns and provisions of this Agreement, or the application of this Agreement to other situations, shall continue in full force and effect unless amended or modified by mutual consent of the Parties.
Notwithstanding the foregoing, if any material provision of this Agreement, or the application of such provision to a particular situation, is held to be invalid, void or unenforceable, the Party adversely affected may (in its sole and absolute discretion) terminate this Agreement by providing written notice of such termination to the other Party.
Section l 0.03 Construction. Each reference in this Agreement to this Agreement or any of the Existing Project Approvals or Subsequent Project Approvals shall be deemed to refer to this Agreement, the Existing Project Approval or the Subsequent Project Approvals as they may be amended from time to time, whether or not the particular reference refers to such possible amendment, except as specifically provided otherwise. Section headings in this Agreement are for convenience only and are not intended to be used in interpreting or construing the terms, covenants or conditions of this Agreement. This Agreement has been reviewed and revised by legal counsel for both City and Developer, and no presumption or rule that ambiguities shall be 26 Item #7.2.
construed against the drafting Party shall apply to the interpretation or enforcement of this Agreement. Unless the context clearly requires otherwise, in this Agreement, including its Exhibits, (i) the plural and singular shall each be deemed to include the other; (ii) the masculine, feminine, and neuter genders shall each be deemed to include the others; (iii) "shall", "will", or "agrees" are mandatory, and "may" is permissive; (iv) "or" .is not exclusive; (v) "include", "includes" and "including" are not limiting and shall be construed as if followed by the words "without limitation"; (vi) "days" shall mean calendar days; (vii) reference to any Recital, Article, Section, Exhibit, or any defined term shall be deemed to refer to the Recital, Article, Section, Exhibit or defined term of this Agreement and ( viii) if the last day of any period to give notice, reply to a notice, meet a deadline or to undertake any other action occurs on a day that is not a Business Day, then the last day for undertaking the action or giving or replying to the notice shall be the next succeeding Business Day.
Section 10.04 Covenants Running with the Land. All of the provisions contained in this Agreement shall be binding upon the Parties and their respective heirs, successors and assigns, and all other persons acquiring all or a portion of the Property or the Project, whether by operation of law or in any other manner whatsoever. All of the provisions contained in this Agreement shall be enforceable as equitable servitudes and shall constitute covenants running with the land pursuant to California law including California Civil Code Section 1468. Each covenant herein to act or refrain from acting is for the benefit of or a burden upon the Project, as appropriate, runs with the Property and is binding upon Developer of all or a portion of the Property and each successive Developer during its development of such Property or portion thereof.
Section 10.05 Notices. Any notice, communication, consent or approval required or permitted hereunder by or between City or Developer must be in writing, and may be given either personally, by facsimile (with original forwarded by regular U.S. Mail), by registered or certified mail (return receipt requested), or by Federal Express or other similar courier promising overnight delivery. If personally delivered, a notice shall be deemed to have been given when delivered to the Party to whom it is addressed. If given by facsimile transmission, a notice or communication shall be deemed to have been given and received upon actual physical receipt of the entire document by the receiving Party's facsimile machine. Notices transmitted by facsimile after 5:00 p.m. on a Business Day shall be deemed to have been given and received on the next Business Day. If given by registered or certified mail, such notice or communication shall be deemed to have been given and received on the first to occur of (i) actual receipt by any of the addressees designated below as the Party to whom notices are to be sent, or (ii) five (5) days after a registered or certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail. If given by Federal Express or similar courier, a notice or communication shall be deemed to have been given and received on the date delivered as shown on a receipt issued by the courier. Any Party may at any time, by giving ten (10) days written notice to the other Party, designate any other address in substitution of the address to which such notice or communication shall be given. Any notices or communications shall be given to the Parties at their addresses set forth below (as the same may be revised in accordance with the preceding sentence):
27 Item #7.2.
Ifto City:
If to Developer:
With a copy to:
City of Calistoga
1232 Washington Street
Calistoga, California 94515
Attention: City Manager
Enchanted Resorts, Inc.
660 N Rush Street
Chicago, Illinois 60611
Attention: Aaron Harkin
Paul Hastings LLP
55 Second Street, 24th Floor
San Francisco, California 94105
Attention: David A Hamsher
Section 10.06 Counterpruts: Entire Agreement: Exhibits. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original. Th.is Agreement, together with the attached Exhibits, constitutes the final and exclusive understanding and agreement of the Parties and supersedes all negotiations or previous agreements of the Parties with respect to all or any part of the subject matter hereof. The Exhibits attached to this Agreement are incorporated herein for all purposes.
Section 10.07 Amendments: Administrative Actions. This Agreement may be amended from time to time, in whole or in part, by mutual written consent of the Parties. The City Manager or his or her designee, in consultation with the City Attorney, is authorized (but not required) to enter into any amendments to th.is Agreement, grant any consent or waiver, enter into the Operation Agreement and negotiate and enter into any Water Service Agreement, in each case on behalf of City (each, an "Administrative Action") so long as such Administrative Actions do not materially modify (i) the Term or time for Developer's performance, (ii) permitted uses of the Property, (iii) provisions for the reservation or dedication of land, (iv) the density or intensity of use of the Property or the maximum height or size of proposed buildings, (v) vested rights of Developer, (vi) monetary payments by Developer, (vii) the construction of Off-Site Improvements, (viii) water or wastewater allocations, or (ix) the Operational Agreement. Nothing in this Section 10.07 shall be deemed to prevent the City Manager from bringing any Administrative Action to the City Council and/or the Planning Commission, as applicable, for their consideration, in his/her sole discretion. Administrative Action shall, except to the extent othe1wise required by federal law, state law or Applicable City Law, become effective in accordance with their tenns and without notice or public hearing.
Section 10.08 Rccordation of Development Agreement. Pursuant to California Government Code § 65868.5, no later than ten (10) days after the later to occur of the full execution and delivery of this Agreement or the Effective Date, the City Clerk shall record an executed copy of this Agreement in the Official Records of Napa County, California.
Section 10.09 No Joint Venture or Partnership. It is specifically understood and agreed to by and between the Parties that: (i) the subject development is a private development; (ii) City has no interest or responsibilities for, or duty to, third parties concerning any improvements 28 Item #7.2.
until such time, and only until such time, that City accepts the same pursuant to the provisions of this Agreement or in connection with the various Existing Project Approvals or Subsequent Project Approvals; (iii) Developer shall have full power over and exclusive control of the Project herein described, subject only to the limitations and obligations of Developer under this Agreement, the Existing Project Approvals, Subsequent Project Approvals, and Applicable City Law; and (iv) City and Developer hereby renounce the existence of any form of agency relationship, joint venture or partnership between City and Developer and agree that nothing contained herein or in any document executed in connection herewith shall be construed as creating any such relationship between City and Developer.
Section 10.10 Waivers. No Party shall be deemed to have waived any provision of this Agreement unless it does so in writing, and no "course of conduct" shall be considered to be such a waiver, absent such a writing.
Section 10.11 California Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California, without reference to choice of law provisions. All references in this Agreement to City's laws, rules, regulations, official policies, standards and specifications, including those enacted or imposed by a citizen-sponsored initiative or referendum or by the City Council directly or indirectly in connection with any proposed initiative or referendum, shall be to the Applicable City Laws.
Section 10.12 Estoppel Certificate. Within thirty (30) days of a written request of either Party to the other Party, the other Party shall provide written certification stating: (a) whether or not this Agreement is in full force and effect and a binding obligation of the Parties; (b) whether or not this Agreement has not been amended or modified, and if so amended or modified, identifying the amendments and/or modifications; and (c) to the knowledge of the certifying Party, whether or not the requesting Party is in default in the performance of its obligations under this Agreement and, if so, describing the same in detail.
Section 10.13 No Third-Party Beneficiaries. The Parties expressly agree and acknowledge that there are no third-party beneficiaries to this Agreement, nor do the Parties intend for there to be any third-party beneficiaries to this Agreement.
Section 10.14 Time of Essence. Time is of the essence of each and every provision of this Agreement.
Section l 0.15 Venue. Any dispute arising out of or related to this Agreement shall be brought and tried in the Napa County Superior Court.
Section 10.16 Subsequent Applications. Nothing in this Agreement shall be construed as preventing Developer from submitting a new or modified application for any land use entitlements or approvals for the Property not contemplated by this Agreement. Any approvals or entitlements with respect to such applications shall supersede this Agreement.
Section I 0.17 Referendum on Agreerri~_fil. The Parties acknowledge that City's approval of this Agreement is a legislative action subject to referendum. 29 Item #7.2.
[SIGNATURES ON FOLLOWING PAGE]
30 Item #7.2.
IN WITNESS WHEREOF, this Agreement has been entered into by and between Developer and City as of the Effective Date.
cn:,r:
CITY OF CALISTOGA,
a municipal corporation
By th{f) i(?--. Name: Richard Spitler
Title: City Manager
DEVELOPER:
ENCHANTED RESORTS, INC.,
a Delaw
By:
Name: -=--=-.,_.__L.:.'-',___,_-'-'-""""
Title:
Approved as to Form:
City Attorney
By:
Name: _______ _
Title:
ACKOWLEDGEMENT
State of Ct1\\,½?Y- \7\u\ )
County of NIA. ~(A_ )
On \ \ . .J)(J\y\£7 , Notary Public,
persona ly appeared e Y- , who proved
to me on the basis of satisfactory evidence to be the person(sr) whose name(1) ish}t'e subscribed to the within instrument and acknowledged to me that he/sheltMY executed the same in his/het'fthcir authorized capacity(~, and that by his/h@i:l~r signatureW on the instrument the person(.B?, or the entity upon behalf of which the person(M acted, executed the instrument.
I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
~ 6-Jl Om¢ I-~~
Signature (Seal)
Item #7.2.
ACKOWLEDGEMENT
State of / l.. L / N ° I' ..S )
County of C 0~ I< )
On 11P~ It. 8, :l013 before me, /4r: :J:;,,lf ,$;t1c.v, Notary Public, personally appeared (' . S, \14 .,v.,v1 --ts 7 , who proved to me on the basis of satisfactory e?idence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of Illinois that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
32 "0~1:ICIAL SEAli
MARY JANE STACH : · Notary Public, State of 1Hino1s
· My CommiSllori EJCl)lres 04:05:14
Item #7.2.
IN WITNESS WHEREOF, this Agreement has been entered into by and between Developer and City as of the Effective Date.
m.x:
CITY OF CALISTOGA,
a municipal corporation
By:
Name: Richard Spitler
Title: City Manager
DEVELOPER:
ENCHANTED RESORTS, INC.,
a Delaware corporation
By:
Name: _ _ _____ _
Title:
Approved as to Fonn:
City Attorney
ACKOWLEDGEMENT
State of - - --------~ County of _________ ~
On _ __________ before me, _ _ ______ __, Notary Public, personally appeared ____________________ __, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
Item #7.2.
EXHIBIT A
Site Map
(ATTACHED]
Exhibit A
Item #7.2.
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Item #7.2.
EXHIBITB
Legal Description of Property
The land referred to in this report is situated in the City of Calistoga, County of Napa, State of California, and is described as follows:
TRACT ONE:
PARCEL ONE:
Lots I through 35 as shown on the map entitled, "Final Map of Diamond Hill Estates" filed April 21, 2005 in Book 25 of Maps at pages 12-20 in the office of the County Recorder of said Napa County.
APN 011-310-031 thru -042; 011-320-041 thru -044; -046 thru -049; -051; -052; -054 and -056 thru-067
PARCEL TWO:
Parcels "A" through "G'', and the private streets labeled "Manzanita Road", "Madrone Drive" and "Ponderosa Road", as shown on the map entitled, "Final Map of Diamond Hill Estates" filed April 21, 2005 in Book 25 of Maps at pages 12-20 in the office of the County Recorder of said Napa County.
APNs 011-320-039; -040; -045; -053; -068; -069; -055 and 050 PARCEL THREE:
A non-exclusive easement 20 feet wide for utility purposes and incidents thereto as contained in Easement Deed recorded March 14, 2002 as Series Number 2002-0010887 of Official Records of Napa County.
PARC EL FOUR:
A non-exclusive easement 20 feet wide for underground utilities and incidents thereto as contained in Easement Deed recorded May 1, 2002 as Series Number 2002-0018265 of Official Records of Napa County.
PARCEL FIVE:
A non-exclusive Easement, for a right-of•way fire lane and all other emergency purposes as described in the "Easement for Fire and Emergency Access Agreement" recorded August 2, 2004 as Series Number 2004 0032490 of Official Records of Napa County.
TRACT TWO:
PARCEL ONE:
Commencing at the southwest comer of Parcel One described in the deed to Roland DeGuarda, recorded March 27, 1998 under Series No. l 998-007784 of Official Records, Napa County Records; thence northeasterly along the western line of said Lands of DeGuarda 915 feet more or less to a point which bears southwesterly 179.00 feet from an angle point in said western line of Exhibit B
Item #7.2.
DeGuarda; thence at right angles southeasterly 1503 feet more or less to the eastern line of said Lands of DeGuarda, said point also being on the western line of Parcel Bas shown on the map of Diamond Hill Estates, recorded April 21, 2005 in Book 25 of Record Maps at pages 12 through 20, said Napa County Records, and from said point, the most westerly comer of said Parcel B bears South 24°04'52" West 469.39 feet; thence along said western line of Parcel B South 24°04'52" West 469.39 feet to the most western corner thereof; thence along the exterior boundary of said map of Diamond Hill Estates North 30°56'57" West 455.47 feet, South 77°35'22" West 240.20 feet, North 78°24'59" West 282.42 feet, South 33°09'50" West 294.72 feet, North 43°43' 12" West 108.30 feet, North 48°39'00" West 107.04 feet and South 55°S2'07" West 6.16 feet to the most northern corner of Lot 29, said map of Diamond Hill Estates; thence following along the lines of Lot 29, as shown on said map southeasterly along a non-tangent curve to the left, the center of which bears North 83°35'07" East, having a radius of240.00 feet through a central angle of 53°52'34" an arc length of 225.68 feet and South 68°42'16" West 214.91 feet to the most southern comer of said Lot 29 on the southwestern line of Calistoga City Limits; thence along said city limits line North 66°13'20" West 445.51 feet to the point of commencement.
APN(S) 011-310-044
PARCEL TWO:
A non-exclusive Easement for a right of-way-fire land and all other emergency purposes as described in the "Easement for Fire and Emergency Access Agreement" recorded August 2, 2004 as Series Number 2004 0032490 of Official Records of Napa County.
PARCEL THREE:
A non-exclusive easement for private utilities and private access over Manzanita Road, Ponderosa Road and Madrone Drive as shown on the map entitled "Final Map of Diamond Hill Estates" filed April 21, 2005 in Book 25 R.M. at pages 12 - 20. 2 Item #7.2.
EXHIBITC
Schedule of Fees
Contribution Value Due Date
Water Service Connection Fee $1,006,380 On or prior to Fee Payment Date
In Lieu Housing Fee $343,025 On or prior to Fee
Payment Date
In Lieu Supplemental Housing Fee $234,000 Custom Home Building Permit ( calculated at
$18,000 per Custom
Home)
Quality of Life Fee $264,000 On or prior to Fee
Payment Date
Traffic Impact Fee $267,795 On or prior to Fee
Payment Date
Public Safety Fee Part 1 $102,925 On or prior to Fee
Payment Date
Public Safety Fee Part 2 $102,925 Grading Permit
Issuance
Less Cash Paid to Date for Diamond Hill ($780,500)
Estates subdivision
Total Contribution $1,540,550
Cash Due on or $1,203,625
prior to Fee
Payment Date
Exhibit C
Item #7.2.
EXHIBITD
Adobe Engineers Technical Memo Key Map Dated September 2011 [ ATTACHED]
Exhibit D
Item #7.2.
Item #7.2.
EXHIBITE
Form of Operational Agreement
This document is exempt from payment of a
recording fee pursuant to California
Government Code Section 27383
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
City of Calistoga
1232 Washington Street
Calistoga, CA 94515
Attention: City Clerk
Recorder's Stamp
OPERATIONAL AGREEMENT
BY AND BETWEEN
THE CITY OF CALISTOGA,
A CALIFORNIA MUNICIPAL CORPORATION
AND
ENCHANTED RESORTS, INC.,
A DELAWARE CORPORATION
1 Exhibit E
Item #7.2.
OPERATIONAL AGREEMENT
This OPERATIONAL AGREEMENT (as amended from time to time, this "Agreement") is entered into as of the ___ day of _ _____ 201_ (the "Effective Date"), by and between ENCHANTED RESORTS, INC., a Delaware corporation ("Developer"), and the CITY OF CALISTOGA, a California municipal corporation ("City").
City and Developer are sometimes referred to herein as a "Party" and collectively as the "Parties".
RECITALS
A. The Parties have entered into that certain Development Agreement dated as of 2012 and recorded on _ _ ___ 2013 as instrument number
______ in the Official Records of Napa County, California (as amended from time to time, the "Development Agreement").
B. All capitalized terms used but not defined herein shall have the meanings given to such terms in the Development Agreement.
C. Section 3 .12 of the Development Agreement requires that, prior to the issuance of a building permit for the Resort Hotel, Developer and City enter into this Operational Agreement.
D. Developer is the owner of the real property on which the Resort Hotel is located, which property is described in Atlachment 1, attached hereto and incorporated herein by this reference (the "Property").
AGREEMENT
NOW, THEREFORE, in consideration of the promises, covenants and provisions set forth herein, the receipt and adequacy of which are hereby acknowledged, the Parties agree as follows:
ARTICLE 1. TERM
Section 1.01 Term. This Agreement shall commence as of the Effective Date and shall expire and terminate at 12:01 A.M. on the thirty (30) year anniversary of the Approval Date (the "Term").
ARTICLE 2. OPERATIONAL REQUIREMENTS
Section 2.01 Managing Entity Experience. The operator of the Resort Hotel (the "Managing Entity") must (including by or through its Affiliates) have at least three (3) years' experience operating a resort or hotel that meets the highest luxury and/or quality standards recognized by Smith Travel Research, AAA Travel Guide, Forbes Travel Guide (formerly Mobil Travel Guide) or JD Power and Associates (or any generally recognized equivalent to the foregoing) and shall manage and operate the Resort Hotel to meet such luxury and/or quality standards.
2 Exhibit E
Item #7.2.
Section 2.02 Formula Visitor Accommodations. The Managing Entity shall not operate the Resort Hotel as "Formula Visitor Accommodations" (as defined in Section 17 .04.639 of the City Municipal Code) unless otherwise approved by City or in accordance with and permitted under ApplicAble City Law.
Section 2.03 Management of Transient Lodging Use. Transient Lodging Use (as defined below) of the Residence Club and Custom Homes shall, to the extent allowable under applicable law, be managed by: (a) the Managing Entity, (b) any Homeowners Association ("HOA") governing the single family dwellings (including a master HOA), or (c) a Person hired and approved by the HOA. The name and contact information of the manager shall be provided to City upon request by City. For purposes of this Agreement the term "Transient Lodging Use" shall mean occupancy of a room or unit in the Reso1i Hotel, the Residence Club and/or or a Custom Home, as the context requires, for a period of thirty (30) consecutive calendar days or less, counting portions of calendar days as full days.
Section 2.04 Payment of Transient Occupancy Tax. Transient occupancy tax payable to City pursuant to City Municipal Code Chapter 3.16 ("TOT") shall be paid by the Managing Entity with respect to the Resort Hotel, the Residence Club and Custom Homes, but only for rent charged for Transient Lodging Use to non-owner third party renters. Moreover, with respect to the Residence Club and Custom Homes, TOT shall not apply to use by owners or their guests, exchange users (i.e., users who exchange use time in another residence or unit for use time in a Residence Club unit), or leases having a continuous te1m of greater than thirty (30) days.
Section 2.05 Use by Recognized Service Clubs. For a period of fifteen (15) years from date of issuance of the initial certificate of occupancy for the Resort Hotel, Developer agrees to provide to City and non-profit organizations located in the City a fifty percent (50%) discount (the "Discount") on the rental of meeting facilities located within the Resort Hotel (the "Meeting Facilities"), subject to the following conditions: (a) the rental rate for the Meeting Facilities, before applying the Discount, shall be the then-standard rental fees for the Meeting Rooms at the time the reservation is booked, (b) the Discount shall only apply to rental rate of the Meeting Facilities and shall exclude and not be applied to the cost of any services provided to or at the Meeting Facilities, such as food and beverage, audio/visual or special decorating, services, furniture, fixtures or equipment; ( c) the Discount shall be provided a maximum of three (3) times per year in the aggregate on a first-come-first-served basis; (d) reservations for Meeting Facilities shall be subject to availability, shall be made no more than sixty (60) days in advance, and shall not be made during peak rental or use periods as determined by Developer in its reasonable discretion; (e) use of the Meeting Facilities shall be subject to the standard tenns of usage applicable to such Meeting Facilities; (f) use of the Meeting Facilities shall be for civic and public purposes; and (g) only so much space shall be reserved as is needed for the purpose for which the reservation is being made (e.g. partitions shall be utilized to divide large spaces into appropriate smaller spaces).
ARTICLE 3. ASSIGNMENTS
Section 3.01 No Amendment Required. No sale, transfer, ground lease, assignment or other conveyance of all or a portion of the Property, nor any Assignment in accordance herewith, shall require the amendment of this Agreement.
3 Exhibit E
Item #7.2.
Section 3.02 Assignment.
A. Requirements. Developer shall not sell, transfer, assign or otherwise convey, in whole or in part (each, an "Assignment"), its rights or obligations under this Agreement to any Person (each, an "Assignee") without the consent of City, which City agrees it shall not unreasonably withhold, condition or delay; provided, that, no such consent shall be required for any Assignment of Developer's right or obligations under this Agreement in connection with an assignment of the Development Agreement to the extent permitted thereunder.
B. Assignment of Agreement in Connection with Property Transfer.
Developer's rights and obligations under this Agreement shall run with the portions of the Property to which such rights and obligations relate. Accordingly, (i) Developer shall not sell, transfer, assign or otherwise convey all or any portion of the Property without making an Assignment of the rights and obligations under this Agreement that correspond to the portion being sold, transferred, assigned or otherwise conveyed and (ii) any Assignment of this Agreement in accordance with this Section 3.02 shall be coupled with a sale, transfer, assignment or other conveyance of the corresponding portion of the Property.
C. Effect of Assignment. Following any Assignment in accordance with this Section 3.02, the Assignee shall succeed to the rights and obligations of Developer under this Agreement.
D. Release of Assigning Developer. Following any Assignment in accordance with this Section 3.02, Developer shall, automatically and without the need for further documentation, be released from its obligations under this Agreement with respect to the portion of this Agreement so Assigned and, upon Developer's request therefor, City shall confirm any such release in writing in a form reasonably approved by City and Developer.
ARTICLE 4. MISCELLANEOUS PROVISIONS
Section 4.01 Findings. City hereby finds and determines that execution of this Agreement furthers public health, safety and general welfare and that the provisions of this Agreement are consistent with the General Plan.
Section 4.02 Severabilitv. If any term or prov1s10n of this Agreement, or the application of any term or provision of this Agreement to a particular situation, is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining terms and provisions of this Agreement, or the application of this Agreement to other situations, shall continue in full force and effect unless amended or modified by mutual consent of the Parties.
Notwithstanding the foregoing, if any material provision of this Agreement, or the application of such provision to a particular situation, is held to be invalid, void or unenforceable, the Party adversely affected may (in its sole and absolute discretion) terminate this Agreement by providing written notice of such termination to the other Party.
Section 4.03 Construction. Section headings in this Agreement are for convenience only and are not intended to be used in interpreting or construing the terms, covenants or 4 Exhibit E
Item #7.2.
conditions of this Agreement. This Agreement has been reviewed and revised by legal counsel for both City and Developer, and no presumption or rule that ambiguities shall be construed against the drafting Party shall apply to the interpretation or enforcement of this Agreement.
Unless the context clearly requires otherwise, in this Agreement, (i) the plural and singular shall each be deemed to include the other; (ii) the masculine, feminine, and neuter genders shall each be deemed to include the others; (iii) "shall", "will", or "agrees" are mandatory, and "may" is permissive; (iv) "or" is not exclusive; (v) "include", "includes" and "including" are not limiting and shall be construed as if followed by the words ''without limitation"; (vi) "days" shall mean calendar days; and (vii) reference to any Recital, Article, Section, Exhibit, or any defined term shall be deemed to refer to the Recital, Article, Section, Exhibit or defined term of this Agreement.
Section 4.04 Notices. Any notice, communication, consent or approval required or permitted hereunder by or between City or Developer must be in writing, and may be given either personally, by facsimile (with original forwarded by regular U.S. Mail), by registered or certified mail (return receipt requested), or by Federal Express or other similar courier promising overnight delivery. If personally delivered, a notice shall be deemed to have been given when delivered to the Party to whom it is addressed. If given by facsimile transmission, a notice or communication shall be deemed to have been given and received upon actual physical receipt of the entire document by the receiving Party's facsimile machine. Notices transmitted by facsimile after 5:00 p.m. on a Business Day shall be deemed to have been given and received on the next Business Day. If given by registered or certified mail, such notice or communication shall be deemed to have been given and received on the first to occur of (i) actual receipt by any of the addressees designated below as the Party to whom notices are to be sent, or (ii) five (5) days after a registered or certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail. If given by Federal Express or similar courier, a notice or communication shall be deemed to have been given and received on the date delivered as shown on a receipt issued by the courier. Any Party may at any time, by giving ten {10) days written notice to the other Party, designate any other address in substitution of the address to which such notice or communication shall be given. Any notices or communications shall be given to the Parties at their addresses set forth below (as the same may be revised in accordance with the preceding sentence):
If to City:
If to Developer:
With a copy to:
City of Calistoga
1232 Washington Street
Calistoga, California 94515
Attention: City Manager
Enchanted Resorts, Inc.
660 N Rush Street
Chicago, Illinois 6061 l
Attention: Aaron Harkin
Paul Hastings LLP
55 Second Street, 24th Floor
San Francisco, California 94105
Attention: David A. Hamsher
5 Exhibit E
Item #7.2.
Section 4.05 Counterparts; Entire Agreement. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original. This Agreement constitutes the final and exclusive understanding and agreement of the Parties and supersedes all negotiations or previous agreements of the Parties with respect to all or any part of the subject matter hereof.
Section 4.06 Amendments. This Agreement may be amended from time to time, in whole or in part, by mutual written consent of the Parties. The City Manager or his or her designee, in consultation with the City Attorney, is authorized (but not required) to enter into any amendments to this Agreement on behalf of City (each, an "Administrative Amendment") that do not materially amend the Tenn, Developer's performance obligations, or monetary payments by Developer. Administrative Amendments shall, except to the extent otherwise required by federal law, state law or Applicable City Law, become effective in accordance with their terms and without notice or public hearing.
Section 4.07 Recordation of Agreement; Rw1s with Land. The City Clerk shall record an executed copy of this Agreement in the Official Records of Napa County, California, which Agreement shall be recorded against and run with the Property.
Section 4.08 Waivers. No Party hereto shall be deemed to have waived any provision of this Agreement unless it does so in writing, and no "course of conduct" shall be considered to be such a waiver, absent such a writing.
Section 4.09 California Law. This Agreement shall be construed and enforced in accordance with the laws of th~ State of California, without reference to choice of law provisions. All references in this Agreement to City's laws, mies, regulations, official policies, standards and specifications, including those enacted or imposed by a citizen-sponsored initiative or referendum or by the City Council directly or indirectly in connection with any proposed initiative or referendum, shall be to the Applicable City Laws.
Section 4.10 Estoppel Certificate. Within thirty (30) days of a written request of either Party to the other Party, the other Party shall provide written certification stating: (a) whether or not this Agreement is in full force and effect and a binding obligation of the Parties; (b) whether or not this Agreement has not been amended or modified, and if so amended or modified, identifying the amendments and/or modifications; and ( c) to the knowledge of the certifying Party, whether or not the requesting Party is in default in the perfonnance of its obligations under this Agreement and, if so, describing the same in detail.
Section 4.11 No Third-Party Beneficiaries. The Parties expressly agree and acknowledge that there are no third-party beneficiaries to this Agreement, nor do the Parties intend for there to be any third-party beneficiaries to this Agreement.
Section 4.12 Time of Essence. Time is of the essence of each and every provision of this Agreement.
Section 4.13 Venue. Any dispute arising out of or related to this Agreement shall be brought and tried in the Napa County Superior Court.
6 Exhibit E
Item #7.2.
Section 4.14 Damages. No Party would have entered into or become a Party to this Agreement if it were to be liable in damages under this Agreement. Without limiting the generality of the foregoing, each of the Parties expressly waives any right to recover consequential, incidental, pW1itive, special, lost profits or revenues, exemplary or other dam ages. [SIGNATURES ON FOLLOWING PAGE]
7 Exhibit E
Item #7.2.
IN WITNESS WHEREOF, this Agreement has been entered into by and between Developer and City as of the Effective Date.
CITY:
CITY OF CALISTOGA,
a municipal corporation
By:
Name: Richard Spitler
Title: City Manager
DEVELOPER:
ENCHANTED RESORTS, INC.,
a Delaware corporation
By:
Name: - - ------ Title:
Approved as to Fonn:
City Attorney
By:
Name: _ ______ _
Title:
ACKOWLEDGEMENT
State of __________ _,
County of ______ _ __ _____;
On _ _ _ ________ before me, _________ , Notary Public, personally appeared --------- - - ---------~ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PEN AL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Sea])
Item #7.2.
ACKOWLEDGEMENT
State of )
County of _ _______ _ ___,
On ______ _____ before me, _________ , Notary Public,
personally appeared _ __________________ __ , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person( s ), or the entity upon behalf of which the person( s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
I
9 Exhibit E
Item #7.2.
END OF DOCUMENT
Attachment 1
Legal Description of the Property
[INSERT DESCRIPTION OF PORTION OF PROJECT CONTAINING RESORT HOTEL ONLY]
10 Exhibit E
Item #7.2.
Item #7.2.
City of Calistoga
STAFF REPORT
To: Honorable Mayor and City Council
From: Laura Snideman, City Manager
Meeting: City Council - Apr 18 2023
Subject: City Council Priorities and Civic Operating Agreements.
DESCRIPTION:
City Council Priorities and Civic Operating Agreements
RECOMMENDATION:
By motion finalize and adopt City Council Priorities and Civic Operating Agreements.
BACKGROUND/SUMMARY:
The City Council annually sets priorities for use in the budget process and for staff and advisory groups to use when determining their workplans for the year. The City Council annually reviews and approves their Civic Operating Agreements.
ANALYSIS:
The City Council recently met to discuss annual priorities and Civic Operating Agreements. Below are the outcomes for consideration and final action.
Priorities
City Council FY2023-2024 Priorities
1. Infrastructure – Human and Physical
The Calistoga City Council wishes to enact a policy establishing a proportionally allocated “Human and Physical Capital Infrastructure Reserve Fund” based on fiscally responsible principles for the following purposes:
a. Future physical capital asset acquisition such as the Fairgrounds b. Disaster response or major systems failures including wildfires, flooding, earthquakes, or infrastructure/facilities breaks
c. Road and transportation system repairs, upgrades, and traffic mitigation efforts d. Maintain existing staffing and to accommodate prudent increases in staffing based on Council-established priorities
For the purpose of budgeting for the FY 2023-2024 year, any available monies above the base General Fund needs and General Fund reserve will be directed to this fund and proportionally allocated with 85 percent toward Physical Capital, and with 15 percent toward Human Capital.
Item #8.1.
2. Housing
The Calistoga City Council wishes to enact a policy establishing its criteria for encouraging the creation and maintenance of the housing stock to continue to support Calistoga’s unique identity and to minimize commute traffic impacts, described as follows:
a. The City Council’s foremost housing interests are in encouraging ownership and rental housing for city employees, school employees, and local businesses with an emphasis on the “missing middle” for those who wish to live and work in Calistoga b. The City Council wishes to begin discussion with the school district about collaboration on reuse of the property the district has identified as a possible housing site c. Active staff engagement to support the above interests may require additional staff resources and will be explored as specific efforts are determined
3. Fairgrounds
The Calistoga City Council wishes to resolve the ownership and future uses of the Fairgrounds with FY2024-2024 efforts described as follows:
a. Mayor Williams and Councilmember Cooper will continue to lead the data collection effort, focusing on revenues and expenditures including for capital repairs and on-going maintenance, and prepare for potential negotiations with Napa County with minimal staff assistance
b. Mayor Williams, Councilmember Cooper and additional interested community partners will host a community discussion to share information and identify interests, uses, and resources that could lead to reactivation of the Fairgrounds c. As part of the budget preparation process for the FY 20224-2025 budget year, Mayor Williams and Councilmember Cooper will present a potential plan of action for the Council's consideration In addition to the above priorities, the Mayor is suggesting including a statement of values based on portions of the goals from the prior city council. The statement would precede the above priorities as follows: The City Council values economic vitality, housing, infrastructure, recreation, professional services, public safety, and our small-town character.
Civic Operating Agreements
Two minor modifications as highlighted in yellow in the attached document were recommended. One is to reflect a two-year term for Vice-Mayor to coincide with the term of the Mayor and a second item us to reflect a "patriotic activity" during council meetings instead of exclusively the pledge of allegiance. In addition, topics that were specifically discussed are highlighted in green including procedures for public comment, agreeing that the Mayor is the primary spokesperson for the City Council and the City, and that all councilmembers work through the City Manager instead of directly with staff.
CEQA STATUS:
N/A
FINANCIAL IMPACT:
CA budget reflecting the City Council Priorities will be developed and presented for discussion in the coming months.
Item #8.1.
ATTACHMENT(S):
Calistoga Civic Operating Agreements 2023 markup
APPROVAL(S):
Nitish Sharma Approved - Apr 10 2023
Marni Rittburg, City Clerk Approved - Apr 10 2023
Item #8.1.
DRAFT
FINAL DRAFT
1 City of Calistoga
CITY COUNCIL CIVIC OPERATING AGREEMENTS
Section TABLE OF CONTENTS Page
1. AUTHORITY .............................................................................................................. 3
2. ROLE OF CITY COUNCIL ........................................................................................ 3
2.1 Responsibilities ................................................................................................... 3
2.2 Considerations .................................................................................................... 4
2.3 Fiscal Authority …................................................................................................ 4
2.4 Civility ................................................................................................................. 4
3. COUNCIL OFFICERS .............................................................................................. 4
3.1 Election of Council Officers ................................................................................ 4
3.2 Role of Mayor and Vice Mayor ........................................................................... 4
4. COUNCIL APPOINTMENTS ................................................................................... 5
4.1 City Manager and City Attorney ......................................................................... 5
4.2 Councilmember Appointments ........................................................................... 5
4.3 Ad Hoc Committees ........................................................................................... 5
5. MEETINGS .............................................................................................................. 6
5.1 Meeting Dates and Times .................................................................................. 6
5.2 Closed Sessions ................................................................................................ 6
5.3 Special Meetings ............................................................................................... 7
5.4 Quorum ............................................................................................................. 7
5.5 Teleconferencing .............................................................................................. 7
5.6 Adjournment ..................................................................................................... 7
5.7 Minutes of Proceedings .................................................................................... 7
5.8 Attendance ....................................................................................................... 7
5.9 Recording of Meetings ..................................................................................... 8
5.10 Avoiding Brown Act Violations ....................................................................... 8
6. AGENDA ............................................................................................................... 8
6.1 Order of Business ............................................................................................ 8
6.2 Preparation of the Agenda .............................................................................. 10
6.3 Agenda Materials ............................................................................................ 10
6.4 Agenda Posting ............................................................................................... 11
7. PUBLIC PARTICIPATION .................................................................................... 12
7.1 Safety and Order ............................................................................................. 12
7.2 Addressing the Council ................................................................................... 12
7.3 Conduct of Speakers ....................................................................................... 13
7.4 Written Communications ................................................................................. 13 Item #8.1.
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2 Section TABLE OF CONTENTS Page
8. PUBLIC HEARINGS ............................................................................................... 13
8.1 Ex-Parte Communications ................................................................................. 13
8.2 Procedures ........................................................................................................ 14
8.3 Absence During Public Hearing ........................................................................ 14
9. MEETING RULES OF CONDUCT ........................................................................... 15
9.1 Presiding Officer ................................................................................................ 15
9.2 Actions Limited to Posted Agenda .................................................................... 15
9.3 Continuance of an Item ..................................................................................... 15
9.4 Standards of Decorum ....................................................................................... 15
9.5 Debate ............................................................................................................... 16
10.ADMINISTRATIVE MATTERS ................................................................................ 18
10.1 Correspondence .............................................................................................. 18
10.2 Communications with the Public ..................................................................... 19
10.3 Relations with Staff ......................................................................................... 19
11.FAILURE TO OBSERVE CIVIC OPERATING AGREEMENTS ............................ 19
12.AMENDMENT OR SUSPENSION OF THESE CIVIC OPERATING
AGREEMENTS....................................................................................................... 20
12.1 Amendment of Operating Procedures............................................................. 20
12.2 Suspension of Operating Procedures ............................................................ 20 Item #8.1.
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3 1. AUTHORITY
The City Council has established these Civic Operating Agreements to provide for continuity of responsibility in the City Council’s decision-making process and to allow sufficient time and opportunity for full consideration and public discussion of important issues which the City Council must review and decide. Adopting Civic Operating Agreements that establish rules for matters such as the election of Council Officers (Mayor and Vice Mayor) and the manner of conducting City Council meetings facilitates these goals.
The following provisions will be in effect upon their adoption by the City Council and until such time as they are amended, or new provisions are adopted in the manner provided by these Civic Operating Agreements.
2. ROLE OF CITY COUNCIL
The City Council is the highest-level decision-making body for the City of Calistoga. In performing its duties, the Council represents all Calistoga citizens.
In executing its duties, the City Council examines a variety of considerations, such as the needs and desires of the community, financial, legal, health, environment, and safety impacts. The City Council welcomes new ideas and innovative approaches, as appropriate, and aims to provide frequent and clear communications and transparency on its activities and decision making. Furthermore, the members of the City Council treat each other, staff, and other parties with dignity and respect.
2.1 Responsibilities
The City Council’s responsibilities include following types of considerations:
a. Prior to making decisions, performs appropriate diligence in consideration of the topic; b. Communicates with residents as appropriate to receive comment from and provide information to residents.
c. Develops policies that guide the City Manager in her/his management of the City, taking into consideration the value of promoting efficiency and effectiveness in operations while maintaining a reasonable level of service;
d. Develops Calistoga’s annual goals for each calendar year, and monitors those annual and multi-year goals, reporting progress and achievement of those goals to the City at mid-year and year-end;
e. Reviews and revises as necessary, and approves the annual Operating and Capital Improvement Program budgets as prepared by the City Manager by July 1 of each calendar year;
f. Faithful application of Calistoga’s Approved General Plan and Municipal Code and enacts revisions to the General Plan and Municipal Code as needed; g. Reviews and approves/denies/revises Ordinances, Resolutions, community planning decisions and Minutes;
h. Recruits, hires, and/or terminates the City Manager as necessary, and conducts an annual City Manager performance review as set forth in Section 4.1; i. Recruits, hires, and/or terminates the City Attorney as necessary, and conducts an annual City Attorney performance review as set forth in Section 4.1; Item #8.1.
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4 2.2 Considerations
The Council considers any matter it deems relevant, material, and/or helpful in performing its duties, such as:
a. Consistency with the City Council’s annual and multi-year goals and priorities; b. Consistency with the Council’s projects as established at its annual workshop/budget process, subject to change by the full city council if new projects are proposed throughout the year;
c. Consistency with the Calistoga General Plan and Municipal Code and all applicable laws;
d. Comment provided by applicants, citizens, staff and other stakeholders on each issue; e. Availability of City funds if needed, and impact on the City’s financial health; f. Availability of required City resources, especially personnel; g. The City’s resilience and tolerance for risk, and the potential impacts of safety, environmental, commercial and operational activities.
2.3 Fiscal/Negotiating Authority
Only a quorum or more of the City Council, in a duly noticed meeting, may provide direction to the City Manager regarding budget, authorize expenditures, and approve agreements and contracts. No individual Councilmember, subcommittee or ad hoc committee shall have any authority to do any of the following on behalf of the City unless expressly granted that authority by the City Council:
a. expend (or authorize the expenditure of) funds, or
b. negotiate or approve the drafting or execution of agreements, contracts or Memorandums of Understanding.
2.4 Civility
City Councilmembers will conduct themselves in an appropriate, polite, respectful and civil manner when dealing with each other, staff and all parties. Except as otherwise set forth in these Civic Operating Agreements, City Council meetings will be governed by Rosenberg’s Rules of Order for the purpose of maintaining proper decorum and order during meetings.
3. COUNCIL OFFICERS
3.1 Election of Council Officers
The City Council is encouraged to rotate the office of Vice Mayor among the members of the Council according to their order of seniority of service on the City Council. In years when members of the City Council are to be elected to their seats during a general election, the City Council will attend to the election of a Vice Mayor for a two (2) year term at the first regular meeting after the certification of general election results has been received by the City and only after newly elected City Councilmembers have been installed. An election of a Councilmember to fill a vacancy as Mayor or Vice Mayor occurring mid-term will be for the remaining portion of the term for that office.
3.2 Role of Mayor and Vice Mayor
The Mayor will be recognized as the official head of the City for all ceremonial purposes. The Mayor presides over Council meetings and ensures sufficiently broad and in-depth communications on agenda items. The Vice Mayor will serve all functions of the Mayor when the Mayor is unable or unavailable to fulfill those functions.
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5 4. COUNCIL APPOINTMENTS
4.1 City Manager and City Attorney
The City Council shall appoint the City Manager in accordance with Calistoga Municipal Code Section 2.08.010 and approve the employment contract and any amendments. The City Council will evaluate the City Manager’s performance at least annually, and additionally as may be agreed upon by the City Council and the City Manager. As part of each evaluation, the City Council and City Manager will agree upon goals and objectives for the City Manager’s performance for the following one to two years. or as otherwise determined by the City Council and the City Manager.
The City Manager’s responsibilities are set forth in Calistoga Municipal Code Section 2.08.070, including without limitation:
a. managing the day-to-day operations of the City,
b. developing and presenting the annual budget,
c. executing the direction, goals and priorities adopted by and approved by the City Council,
d. has principal responsibility for all official communications from the City to the public, e. directs City staff in the performance of their duties, and f. other duties as assigned by the City Council during duly noticed meetings.
The City Council interacts with City staff only through the City Manager, unless otherwise authorized by the City Manager.
The City Council shall appoint and approve the contract for City Attorney Services and make any amendments and will review the City Attorney’s performance as needed. The Council and Councilmembers may interface with the City Attorney through the City Manager, and directly with the City Attorney on an as needed basis.
4.2 Councilmember Appointments
As soon as practicable following the annual reorganization meeting, the Mayor will announce the Mayor’s nominations of Councilmembers to represent the City on entities requiring a Council representative. The nominations will be noticed at a regular City Council meeting. At any time of the year, by a majority vote, the City Council may create additional commissions, committees, or other groups to advise the council after establishing the purview and desired outcome of the advisory body and identifying the necessary resources to support the newly created body.
4.3 Ad Hoc Committees
From time to time, the City Council may create Ad Hoc committees. These committees are temporary committees, generally 18 months or less, established by the Council to address a specific issue and bring a recommendation to the Council as a whole.
Ad Hoc committees generally automatically dissolve once the assigned project has been completed. Membership of an Ad Hoc committee is at the discretion of the Council and must contain less than a quorum of Councilmembers.
The Council will provide direction at the time of creation of Ad Hoc committees to identify the composition, scope of authority, duties, expected output, report-back schedule, term, staff liaison and budget (if any) of the Ad Hoc committee.
Item #8.1.
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6 Councilmembers may also want to discuss methods for Ad Hoc committees to report back to the City Council on their progress. No Ad Hoc committee will operate outside the original scope of authority granted at its creation, except upon a formal vote of approval by the City Council during a duly noticed meeting.
5. MEETINGS
The City Council is subject to the Ralph M. Brown Act Open Meetings Law (“Brown Act”) (Government Code Section 54950 et seq). All meetings of the City Council are open to the public, except for Closed Sessions which are authorized to be held in private under the Brown Act.
To the extent possible, Councilmembers will contact the City Manager with questions about Council meeting items after reviewing the Agenda Packet and at least 24 hours in advance of the meeting, so she/he can prepare appropriate responses.
5.1 Meeting Dates and Times
5.1.1 Dates
Regular meetings will be held on the 1st and 3rd Tuesdays of each month (unless canceled by majority vote of the City Council or due to a lack of items for consideration or a quorum, as determined by the Mayor and/or City Manager) or as set by calendar adopted by the City Council in January of each calendar year. If a meeting is cancelled due to lack of items or lack of a quorum, the meeting will be publicly noticed as to the reason for the cancellation.
Special meetings or continued meetings may be called by the Mayor, City Manager. or a majority of the Council. If the meeting date should fall on a legal holiday, the Council may cancel the meeting or reschedule for an alternate date and time designated by the Council. All meetings of the City Council (except Closed Sessions) shall be open to the public.
5.1.2 Starting Time and Location
All Regular meetings will begin at 6:00 p.m. Meetings may be preceded or followed by Special meetings, including Closed Sessions.
5.1.3 Ending Time
Unless otherwise adjourned, all meetings of the City Council will automatically be adjourned at 9:00 p.m., except that a majority vote of the City Council may extend the automatic adjournment to 9:30 p.m. Adjournment of the meeting may be further postponed after 9:30 p.m. only by unanimous consent to adjourn not later than a specified time. More than one such unanimous postponement of adjournment may be adopted.
5.2 Closed Sessions
A Closed Session may be held before, during, or after any Regular or Special meeting for any purpose authorized by the Brown Act, and must be noticed at least twenty-four (24) hours in advance, also as authorized by the Brown Act. It is a violation of the Brown Act and the City Council’s Civic Operating Agreements to disclose information obtained or presented in anticipation of or during a Closed Session, which shall be confidential. Public comment will be received in open session prior to a closed session.
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7 5.3 Special Meetings
Special meetings may be called by the Mayor, a majority of the Councilmembers, the City Manager or the City Attorney. The call for a Special meeting must specify the day, hour, and place and the subject(s) to be considered. Twenty-four hours’ notice must be given prior to a Special meeting, and the agenda for the Special meeting must be made available to members of the public consistent with the requirements of the Brown Act. Only matters specified in the notice may be discussed at Special meetings. The public will be given an opportunity to address the Council before or during consideration of any matter described in the notice for the Special meeting.
5.4 Quorum
A quorum of Councilmembers must exist for the City Council to conduct business. Three (3) members of the Council shall constitute a quorum. In the event a quorum is not in attendance within 30 minutes after the time noticed for commencement of the meeting, no meeting will be held on the noticed date, and the noticed meeting will adjourn to the next Regular meeting or to a later set date, at a time and place declared by the City Clerk.
5.5 Teleconferencing
Teleconferencing during City Council meetings to conduct noticed agenda topics and to allow Councilmembers who wish to participate from a remote location will be permitted in accordance with the procedures set out in Government Code Section 54953(b), as amended.
The teleconferencing location will be placed on the agenda and noticed and posted at the site at least 72 hours in advance of said meeting. The public is welcome to attend and participate in the meeting at the site. The City may elect to follow modified teleconferencing procedures as authorized by existing state law which apply during a declared emergency, and based on future adopted state legislation. The public will be informed of all such modified teleconferencing procedures, and the duration the procedures remain in effect.
5.6 Adjournment
The Council may adjourn any Regular, Adjourned Regular, Special or Adjourned Special meeting to a time and place specified in the order of adjournment, and in accordance with Rosenberg’s Rules of Order. If all Councilmembers are absent from any Regular or Adjourned Regular meeting, the City Clerk may declare the meeting adjourned to a stated date, time and place. The City Clerk shall post a copy of the order or notice of adjournment at City offices and other places designated by the Council as required by law.
Whenever a Regular or Adjourned Regular meeting is adjourned as provided in this section, the resulting Adjourned Regular meeting is a Regular meeting for all purposes. When an Order of Adjournment of any meeting fails to state the hour at which the adjourned meeting will be held, it will be held at the hour specified for Regular meetings.
5.7 Minutes of Proceedings
Action minutes of all public proceedings of the City Council shall be recorded by the City Clerk and entered into City records as official meeting minutes following approval by the Council, and shall thereafter be kept, published, and or distributed in compliance with State law and applicable City policy.
5.8 Councilmember Attendance
Councilmembers are encouraged to inform the City Clerk when they are unable to attend an upcoming meeting.
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8 5.9 Recording of Meetings
All Regular meetings of the City Council will, to the extent feasible, be recorded by electronic recording device and streamed live during the meeting. The recording will be made by the City Clerk and retained in accordance with the City’s records retention schedule. The City Clerk will post the electronic recording of meetings, as available, on the City’s website.
The use of other recording, videotaping or television equipment by members of the audience is permitted from the back row of the Council Chambers or side aisles against each wall of the Council Chambers, as designated by City staff, in a manner so as not to obstruct the view of the presenters and/or members of the public in attendance, or create consistent noise or illumination that would constitute a persistent disruption of the proceedings. The City Council may further restrict or prohibit the recording of proceedings upon a finding by the Council that the recording cannot continue without noise, illumination, or obstruction of view that constitutes a persistent disruption of the proceedings.
5.10 Avoiding Brown Act Violations
Relating to Meeting Attendance
Members of the Council shall comply fully with the requirements of the Brown Act, including those in Government Code Section 54952.2 to avoid potential violations relating to attendance at meetings such as conferences; meetings conducted by City staff/consultants; meetings presented by organizations other than the City; and meetings of other legislative bodies.
6. AGENDA
6.1 Order of Business
The business for a Regular meeting will generally be shown on the Agenda in the following order and may be modified by either the Mayor or City Manager when circumstances warrant a one-time change:
6.1.1 Call to Order/Roll Call/Patriotic Activity
6.1.2 Report from Closed Session (if any)
6.1.3 Public Comments and Suggestions
This item is intended to permit the public an opportunity to advise the Council of items of interest in the community. The Council will consider brief comments from the audience on items that are not listed on the Agenda. The Council cannot discuss details or vote on issues raised that are not agenda items. Any concerns may be referred to staff or placed on a future agenda (as set forth in Section in 6.1.12).
6.1.4 Adoption of Meeting Agenda
The Council, by majority vote, will adopt the Agenda as final before proceeding to the consideration of the first matter. Following adoption, Agenda items may not be added or removed, or their order changed unless by consent of three (3) or more of the members of the Council present at the time the Agenda was adopted as final. An Agenda item not considered or completed for lack of time will become an Agenda item at the following meeting unless the item is expressly continued to another time.
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9 6.1.5 City Manager’s Report
The City Manager will use this section of the Agenda to provide brief reports on activities undertaken in her/his official capacity since the last scheduled Council Meeting and other items of significant interest to the Calistoga community.
6.1.6 Proclamations/Presentations/Awards
These items include presentations by staff, community members, or organizations as well as recognition of individuals, groups and events of significance by proclamation, award or other action of the City Council. These items are placed on the agenda by the City Manager, and may be placed on the agenda at the direction of the Mayor and/or a quorum of the City Council, and in the manner described in Section 6.1.12 below.
The Mayor or City Manager have discretion regarding scheduling of presentations, proclamations and awards. Presentations are limited to five (5) minutes per topic, with an up to five (5) minute extension if requested in advance. Councilmembers may utilize up to an additional ten (10) minutes for questions. No single presentation, including questions will extend beyond a total of twenty (20) minutes. The City Clerk will be responsible for time management of presentations during the meeting.
6.1.7 Adoption of Consent Calendar
a. The Council may adopt a Consent Calendar as part of the regular meeting Agenda. A Consent Calendar consists of items of a non-controversial and/or routine nature submitted by the City Manager. The City Manager will propose specific action on each Consent Calendar item and her/his recommendation will become the action of the Council upon adoption of the Consent Calendar. Consent Calendar items are adopted in total and under one (1) motion by the Council and are not subject to individual debate and discussion.
b. Consideration of Consent Items Removed for Discussion Any member of the City Council may remove a Consent Agenda item therefrom for consideration and discussion by the Council. The removed item will be placed on the regular Agenda and recorded in the Minutes under “Consideration of Consent Items Removed for Discussion.”
6.1.8 Public Hearings
The Public Hearings section of the Agenda is for official public hearings required by law or for which a hearing would be in the public interest. See Section 8 for information about conducting a Public Hearing.
6.1.9 Ordinances, Resolutions and Requests for Action
Ordinances, Resolutions and Requests for Action subject to City Council approval usually will be placed in this section of the Agenda. Occasionally, Resolutions and the first reading of Ordinances are placed under Public Hearings. When this is the case, the Council will consider these matters where appropriate.
6.1.10 General Government
Items presented under this section may require direction from City Council for formal consideration of the items at a future City Council meeting. Items under this heading are not considered for action.
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10 6.1.11 Study Sessions
No formal action may be taken by the City Council concerning any study session agenda item other than to agree to, or to direct staff to, present the item on the regular agenda of a subsequent meeting. Any request for an agenda item which does not specifically include a description of the action of the item desired will be calendared as a study session item.
6.1.12 Council Reports
Any member of the City Council may deliver a report about a topic of interest or request that a matter be placed on the agenda of the City Council by making a request to the City Manager or the City Council, indicating her/his desire to have that item placed on a future City Council agenda. The sponsoring Councilmember will briefly deliver her/his report, or describe the subject sufficiently to inform the City Council and public of the nature of the request.
Should the Councilmember or City Manager seek the direction of the full city council, the City Council shall consider the request to place an item on a future agenda during a regular city council meeting. Staff reports shall not be prepared on Council member requested items until City Council discussion has occurred and direction to take up the matter has been provided by the City Council. No discussion of the subject or merits of the proposed agenda item may occur in connection with the request to add an item to the agenda, except to explain the general nature of the item. Future agenda items will be placed on an agenda as soon as reasonably feasible as determined by the City Manager in consultation with the Mayor.
Any member of the public may request during public comment or by prior correspondence with a Council Member, that the City Council consider an item on a future agenda. Any individual City Council member may then follow the procedures set forth above if the City Council desires to consider the request.
6.2 Preparation of the Agenda
The City Manager and City Clerk, in consultation with the Mayor as necessary, will prepare the City Council meeting Agenda, sequence of Agenda items and other procedural matters.
Except as set forth in Section 6.1.4, this provision does not empower a Mayor to add any item to the Agenda without complying with the process described in Section 6.1.12. Items proposed for inclusion on the Agenda by anyone other than the City Manager or the City Council pursuant to Section 6.1.12 must be submitted to the City Manager and City Clerk in writing eleven (11) days preceding the regular meeting for consideration.
6.3 Agenda Materials
A staff report will be prepared for each Agenda item except in unusual circumstances or unless otherwise directed by the City Council. Attached to the staff report will be documents received by or developed by staff that are pertinent to the staff report.
Members of the public and other interested parties (i.e., developers) may submit documents related to an Agenda item to the City Clerk. Such documents will be included in the Agenda materials if they are received in time for inclusion in the packet.
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11 Councilmembers will refrain from attempting to submit documents (or having relatives or other parties with potential and/or perceived conflicts of interest submit documents) to the City Clerk or City Manager for inclusion in the Agenda packet.
To facilitate the efficient progression of the City Council through the Agenda, and to maintain a clear distinction between Staff presentations and recommendations and individual Councilmember opinions, during the staff presentation of a staff report Councilmembers will not utilize the City’s technological infrastructure to broadcast or present materials on a display screen to either the City Council or the public except during the discussion period for an agenda item.
Late correspondence pertaining to an agenda item received after the Agenda packet has been distributed, but before 5:00 p.m. on Council meeting day, will be copied and presented to the Council and the public at the meeting, if practicable.
Councilmembers will refrain from circulating or causing to be circulated to more than one (1) other Councilmember any written or recorded information relating to any agenda item before that agenda item is publicly heard at a Council meeting, though such information may be distributed during the discussion period for such item.
The only exception to this rule is for communications received by a Councilmember from residents not serving on the City Council, which may be forwarded to the City Clerk (without amendment) for circulation to the rest of the City Council. For clarity, this prohibition also precludes City Councilmembers from drafting and submitting communications regarding an agenda item to the City Clerk or City Manager for inclusion in the Agenda packet for a meeting at which the Councilmember will be absent.
Copies of materials distributed by City staff and others at the meeting will be made available to members of the public as soon as practicable. Changes and additions to staff reports and correspondence received will be provided to Councilmembers before the meeting, when possible, and made available to the public at the meeting, when possible.
6.4 Agenda Posting
The City Clerk will post the Agenda and Agenda Materials seven (7) calendar days or five (5) business days in advance and no less than 72 hours before a Regular meeting, and at least 24 hours before a Special meeting in the following locations, which are freely accessible to members of the public: Calistoga City offices and Calistoga Library and posted on the City’s website. At the meeting, a public copy will be available for review.
The Agenda Packet will be delivered, no later than the Tuesday preceding each Regular meeting or no later than Wednesday following a Monday holiday, to the Mayor and other Councilmembers and made available to members of the public consistent with the requirements of the Brown Act. The Agenda shall specify the time and location of the meeting and contain a brief general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session.
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12 7. PUBLIC PARTICIPATION
7.1 Safety and Order
When the City Council is in session, all persons present must preserve safety and order and should conduct themselves in a civil manner. Members of the public should sit in the audience seating area, unless addressing the Council or entering or leaving the Council Chambers, should not block the aisles with personal belongings, and should silence audible equipment when in the Council Chambers (including cellular telephones). Members of the public may not enter the open area directly in front of the dais or speak from the audience except when testifying on or participating in an Agenda item.
The audience will conduct themselves with civility and courtesy toward the Council, Staff and other members of the public, and refrain from conduct which is disruptive to the meeting through deed or comment. Disruptions include, although are not limited to, speaking without being recognized by the Presiding Officer, clapping, booing, cheering, jeering, interrupting a speaker with the floor, yelling, physically assaulting another person (or threatening to do so), inciting others to disruptive conduct, and blocking the audience or camera view of the proceedings.
Any person who disrupts the meeting will be called to order by the Presiding Officer. If disruptive conduct continues, the Presiding Officer may request 1) restraint and civil behavior from all members of the public; 2) a short break in the proceedings; or 3) if the member of the public continues to disrupt the proceedings, the removal of the disruptive person from Council Chambers by the Sergeant at Arms.
7.2 Addressing the Council
Only persons who have been recognized and granted permission by the Presiding Officer or a majority of the quorum may address the Council.
A person addressing the Council will be asked, but is not required, to complete a form (a speaker card to the City Clerk) providing her/his name and city of residence in writing as well as stating so orally for the record during their presentation. Each person addressing the Council will do so from the podium, speaking into the microphone for the record. When speaking from the podium on an Agenda item, members of the public will address only the Council, and not the audience or staff. A Councilmember, through and at the discretion of the Presiding Officer, may request staff to answer questions or address issues raised during public comment.
7.2.1 Public Comments
During the “Public Comments and Suggestions” portion of the meeting, any person may address the Council on an item not on the agenda. Public comment will be allowed during each item on the agenda.
7.2.2 Council Questions
Following the remarks of each speaker upon an agenda item, Councilmembers, through and at the discretion of the Presiding Officer, will have the opportunity to question the speaker. However, the Council will not comment or question a speaker about an item that is not on the Agenda.
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13 7.2.3 Limits
Public participants are encouraged to limit their comments to three (3) minutes. The Presiding Officer may impose strict time limits (including reduced time limits) on persons addressing the Council when appropriate and in the spirit of permitting all present an opportunity to address the Council. In the event a public participant desires to make a presentation which exceeds three (3) minutes, any such speaker must make a formal request in writing to the City Manager prior to the day of the City Council meeting at which the public participant desires to speak.
Whenever any group of persons wishes to address the Council on the same subject matter, the Mayor will have the right to request each such group or each faction of such group to choose a spokesperson to avoid unnecessary repetition. If any such group refuses to choose a spokesperson, the Mayor may limit the total time for public comment on any agenda item to assure that the Council can conclude posted agenda items.
The Presiding Officer will then determine at the time of the City Council meeting how much additional time will be allotted for such presentations and speakers, if any, depending upon the number of requests and number of persons desiring to speak at a meeting.
7.3 Conduct of Speakers
Statements by a member of the public will be related to the Agenda item at hand, except during the Public Comments and Suggestions segment of the meeting. No person will use loud, profane, threatening, or personally abusive language, or engage in any other disorderly conduct to disrupt, disturb, or otherwise impede the orderly conduct of any Council meeting.
Persons who violate this rule may be barred from attendance for the remainder of the Council meeting, provided that the Presiding Officer has notified the person to conduct herself/himself in a manner consistent with this provision, and warned the person that she/he will be removed if she/he continues to disrupt the Council meeting. If after notification and warning the person persists in disrupting the meeting the Presiding Officer will order the person to leave the Council meeting. If the person does not remove herself/himself, the Presiding Officer may request any law enforcement officer who is on duty at the meeting to remove that person from the Council Chamber.
7.4 Written Communications
The Council will consider any written communication submitted to the City Manager and/or Mayor at least 24 hours prior to the meeting. Correspondence received sufficiently in advance of a meeting, including communications relating to a specific matter on a Council agenda, will be handled as described in Section 6.3.
8. PUBLIC HEARINGS
8.1 Ex Parte Communications
When a Public Hearing is required for an Agenda item, the Presiding Officer will first ask Councilmembers to disclose on the record material communication (e.g., email, other written correspondence, conversations, and site visits) occurring outside the hearing that relate to the subject of the hearing. Councilmembers will identify with whom she/he had such communications and the general nature of the communication and if a site visit was conducted.
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14 8.2 Procedures
Presentations at public hearings will be in the following order:
8.2.1 Item announced by Presiding Officer and Presiding Officer requests regarding Ex Parte Communications.
8.2.2 Presiding Officer reviews order of procedure for public hearing.
8.2.3 Staff summarizes issue before City Council.
8.2.4 Council asks questions of staff for the purpose of eliciting information relevant or useful to the City Council’s determination of the item at hand.
8.2.5 Presiding Officer opens the Public Hearing
The purpose of this portion of the public hearing is to provide an opportunity for persons interested in the subject of the hearing to testify in support of or opposition to the matter being heard. The order of testimony will be as follows:
a) Applicant, and/or appellant, where appropriate, presents arguments in favor of application or appeal.
b) Statements from persons desiring to speak in support of or opposition to the application or appeal.
c) Applicant and/or appellant offers concluding remarks. d) Questions from the City Council to applicant and/or appellant, and questions from the Council (where appropriate) to the opponent(s) to the application or appeal.
e) Subject to the discretion of the Presiding Officer, the Councilmembers may ask questions of speakers for clarification during the public testimony portion and during deliberations.
8.2.6 Presiding Officer Closes Public Hearing
Following the public portion of the hearing, the Presiding Officer will declare the public portion of the meeting closed.
8.2.7 Council Deliberates
After the Presiding Officer has closed the public comment period of the meeting for that agenda item, the matter will be taken up by the City Council. Each Councilmember will be given an opportunity to speak to the subject. When the Council discussion is concluded, the Council will make its decision.
8.2.8 Council Action by Continuation or Decision
Council may, at this time, continue a matter to a specific future date to obtain additional information. Continuing a public hearing to a specific date does not require additional notice. When the Council discussion is concluded, the Council will make its decision and vote on the item making findings of fact as required by law.
8.3 Absence During a Public Hearing
A Councilmember otherwise qualified to vote may not vote on a matter if the Councilmember was absent from all or part of the public hearing on the matter, unless the Councilmember conducts the following actions, and announces the action for the record:
a. reviews the minutes and the staff report or listens to the audiotape of the entire portion of the hearing he/she missed, if the minutes are not available, and b. reviews all physical and written evidence introduced at the hearing before the meeting at which the decision is to be rendered.
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15 9. MEETING RULES OF CONDUCT
9.1 Presiding Officer
The Mayor, or Vice Mayor if the Mayor is absent or unavailable, will act as the Presiding Officer and will preside and call the meeting to order at the hour appointed. In the absence of the Mayor and Vice Mayor, the meeting will be called to order by the City Clerk and those Councilmembers present will proceed to elect a temporary Presiding Officer. The Presiding Officer may move, second, and debate from the Chair, and will not be deprived of any rights and privileges of a Councilmember. The Presiding Officer is responsible for maintaining order during the meeting and for facilitating efficient progression through the agenda by avoiding repetitive debate or the presentation of irrelevant matter.
9.2 Actions Limited to Posted Agenda
The City Council shall only act on an item appearing on the posted Agenda except when there is an emergency, there is a need for immediate action, or the item was posted for a prior meeting less than five (5) days before and was continued, as prescribed more fully in Government Code Section 54954.2.
9.3 Continuance of an Item
An Agenda item may be continued by the City Council by a majority vote.
9.4 Standards of Decorum
When an Agenda item is addressed, the Presiding Officer will first ask for a staff presentation.
Next, the Presiding Officer will ask for clarifying questions from the Council of staff for the purpose of eliciting information relevant or useful to the City Council’s determination of the item at hand. After that, the Council will receive public comment. After public comment, the Presiding Officer will close the public comment portion and open the item for discussion by the Council.
The following additional standards of decorum will apply during every meeting:
9.4.1 Council
While the Council is in session, Councilmembers will preserve order and decorum, and a member will neither (by conversation or otherwise) delay or interrupt the proceedings or the peace of the Council, nor disturb a member while speaking, or refuse to obey the orders of the Presiding Officer.
9.4.2 Use of Electronic Devices
While the Council is in session, to satisfy due process requirements, Councilmembers will give their full attention to the proceedings. Councilmembers are permitted to use laptop computers and other electronic devices such as iPads while Council is in session. However, electronic devices may not be used while Council is in session to access the internet or to communicate with residents, staff or other Councilmembers regarding any item on the agenda for that meeting.
9.5 Debate
9.5.1 Right to the Floor
Every Councilmember desiring to speak on an agenda item will refrain from doing so until he/she gains recognition by the Presiding Officer and is given the floor, at which time he/she will confine himself/herself to the question under debate. The Presiding Item #8.1.
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16 Officer will have the discretion, unless overruled by a majority vote of the City Council present at the meeting, to terminate a Councilmember’s right to the floor upon the Presiding Officer’s determination that doing so is reasonably necessary to enforce the Civic Operating Agreements set forth herein.
9.5.2 Interruptions
A Councilmember, once recognized, will not be interrupted when speaking except to be called to order by the Presiding Officer, unless a point of order has been raised by another Councilmember or unless the speaker chooses to yield to a question by another Councilmember. If a Councilmember, while speaking, is called to order, the Councilmember will cease speaking until the question of order is determined. If determined to be in order, the Councilmember will be permitted to proceed.
9.5.3 Points of Order
The Presiding Officer will determine all points of order subject to the right of any Councilmember to appeal to the Council. If an appeal is taken, the question will be, “Will the decision of the Presiding Officer be sustained?” A majority vote of the Council conclusively determines the question of order.
9.5.4 Result of a Vote
The Presiding Officer will announce the result of the vote. A roll call vote will be taken upon the request of any Councilmember or as legally required. No action shall be taken by secret ballot.
9.5.5 Appeals
Any ruling of the Presiding Officer may be appealed at the request of a Councilmember.
The Presiding Officer will call for a roll call vote to determine if the ruling is upheld.
9.5.6 Precedence of Motions
When a motion is before the Council, no other motion will be entertained except:
a) Motion to Amend
A motion to amend, which modifies the original motion, is in order but is debatable only if it has been accepted by both the maker and seconder of the motion. Amendments are voted on first, and the main motion vote is last. A motion may be amended more than once with each amendment being voted on separately. There will only be one (1) amending motion on the floor at any one time.
b) Substitute Motions
A substitute motion is for the purpose of taking out the main motion altogether and replacing it with a new and different motion. A substitute motion must be voted on before an amendment of the main motion. If the substitute motion is adopted the main motion dies and so does any amendment of the main motion.
c) Motion to Postpone
A motion to postpone to a definite time is subject to debate and amendment as it relates to propriety of the postponement and time set. A motion to postpone a public hearing must set a definite date for the hearing. If a motion to postpone indefinitely is adopted, the Agenda item will be carried forward by the City Clerk.
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17 d) Motion to Table
A motion to table is not debatable and not subject to amendment. The purpose of a motion to table is to suspend the item for an indefinite time. If the agenda has been adopted, the motion to table should include a motion to amend the meeting agenda. If a motion to table passes, consideration of the matter during the same meeting may be resumed only upon the motion of a member voting with the majority on the motion to table. e) Motion to Close Debate
When a motion to close debate is made and seconded, there will be no further debate except on whether to close debate. If the question carries, the Presiding Officer will put pending amendments to a vote without debate in the inverse order of their introduction before putting the main question. If the question is decided negatively, the main question and its amendments remain before the Council.
9.5.7 Motions Not Subject to Debate
All motions are debatable except for the following, which will be put to an immediate vote:
a) Motion to adjourn, which requires a simple majority. b) Motion to recess, which requires a simple majority.
c) Motion to table, which requires a simple majority.
d) Motion to limit debate (“I move the question” or “I move to limit debate of this item to __ minutes”).
9.5.8 Reconsideration
Providing that no intervening rights will be prejudiced, a Councilmember who voted with the majority on that question may move the reconsideration of that question at the same meeting in which the original decision was made or at the next following meeting. After a motion for reconsideration is acted upon, no other similar motion regarding the same matter at the same meeting may succeed without unanimous consent.
9.5.9 Conflict of Interest and Bias
A conflict of interest or even the appearance of a conflict of interest can diminish the public’s confidence in the integrity of the governmental process. Therefore, a Councilmember who has a conflict of interest under the Political Reform Act or Government Code §1090 et seq., may not participate in the Agenda item causing the conflict, unless an exception to the conflict exists which allows participation.
Councilmembers should contact the City Attorney for advice if a potential conflict of interest may exist, or if there is a question as to whether their participation in a particular agenda item is appropriate.
9.5.10 Protests
Following the success of a motion carried by the majority of the City Council, a dissenting Councilmember will have the right to enter into the public record any additional reasons for dissent or protests the motion which the Councilmember was precluded from articulating during debate on the motion. The Presiding Officer has the discretion to limit a Councilmember’s entry into the public record of reasons for dissent or protests any motion carried by the majority when reasonably necessary to facilitate the efficient progression through the Agenda by avoiding unnecessarily cumulative or repetitive statements or the presentation of irrelevant matter.
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18 9.5.11 Voting
At least three (3) affirmative votes are required to enact an Ordinance, adopt a Resolution, approve a motion granting a franchise or authorizing the payment or expenditure of money or incurring of a debt, amend these Civic Operating Agreements, or place a new matter on a future agenda. The majority of the quorum present at a meeting is required to adopt other motions, except as otherwise indicated herein. A "majority" refers to a majority of the quorum present.
Every Ordinance will be adopted by a roll call vote. All other matters may be referred to a voice vote unless a roll call is requested by a member of the Council or is required by law. On all matters for which a voice vote is authorized, the Presiding Officer may ask for "all those in favor?", or words of similar import. The Presiding Officer will then request for “all those opposed?" The Presiding Officer will report out the results of the vote, and the name of those Councilmembers who opposed the item. If a Councilmember objects to the procedure, a roll call vote will be called in the normal manner and the ayes and noes recorded in the minutes.
9.5.12 Division of the Question
If a matter properly put before the Council contains two (2) or more separable propositions, any Councilmember may, with the consent of one other member of the Council, divide the question into its separable parts for consideration. Separable propositions will mean two separate questions or issues which if acted on together might create ambiguity as to the effect of the vote, and which if acted on separately, contain two or more separate issues or questions.
10. ADMINISTRATIVE MATTERS
10.1 Correspondence
10.1.1 Electronic Correspondence
Councilmembers will use accounts issued to them by the City for all email correspondence regarding City business. Councilmembers will not use accounts issued to them by the City for personal correspondence. Councilmembers may elect to forward (without editorialization) copies of emails they receive from non-Councilmember residents to the City Clerk, who will include such emails in the staff reports for relevant Agenda items as set forth in Section 6.3.
10.1.2 Other Correspondence
Written correspondence received by a Councilmember at the City offices by postal service, personal delivery, and messenger service will be opened by staff and handled consistent with the City of Calistoga Records Retention Program, which may require the City to retain a copy. Councilmembers may elect to forward copies of written correspondence they receive to the City Clerk, who will include such correspondence in the staff reports for relevant Agenda items.
10.2 Communications with the Public
The Mayor is the primary spokesperson for the City and City Council. When the Mayor is unavailable, the City Manager and/or the Vice Mayor assume spokesperson duties.
Councilmembers will be clear in their communications with members of the public and the media when the opinions and positions they convey are their own individual positions and must Item #8.1.
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19 clearly state whether they have been authorized by the Mayor or Council to speak for the Council on any topic of discussion. Councilmembers may wish to utilize a statement such as “This (article, letter) represents my personal opinion and does not reflect the position or policy of the City of Calistoga or the City Council of Calistoga.” In addition to the above, the City Council recognizes that there are inherent risks associated with the wide dissemination of information posted on social media platforms (e.g., Facebook, Nextdoor, and Twitter, etc...) and that Councilmembers have no ability to ensure their posts on social media platforms are understood by everyone in the way they were originally intended to be understood. Given these dangers, Councilmembers are encouraged to limit their posts on social media platforms regarding issues that may come before the City Council to providing relevant logistics or factual information pertaining to such issues.
10.3 Relations with Staff
As required by CMC 2.08.080, Councilmembers of the City Council shall deal with employees of the City only through the City Manager, except otherwise permitted by the City Manager.
The City Manager shall take her/his orders and instructions from the Council as a body only when the Council is sitting in a duly convened meeting, and no individual Councilmember shall give any orders or instructions to the City Manager outside of a City Council meeting, without approval of the City Council. Neither the Council as a whole, nor an individual Councilmember, shall give orders or instructions to subordinates of the City Manager.
11. FAILURE TO OBSERVE CIVIC OPERATING AGREEMENTS
These Civic Operating Agreements govern the conduct of City Councilmembers and the conduct of meetings. These Civic Operating Agreements are intended to expedite the transaction of the business of the City Council and are deemed to be procedural only. Failure to strictly observe these Civic Operating Agreements will not affect the jurisdiction of the City Council or invalidate any action taken at a meeting that otherwise conforms to law.
The Chief of Police or such member or members of the Police Department as he or she may designate, will be Sergeant-At-Arms of the City Council and will carry out all orders given by the Presiding Officer through the City Manager for the purpose of maintaining order at City Council meetings. Any Councilmember may move to require the Presiding Officer to enforce the rules, and the affirmative vote of a majority of the City Council will require him or her to do so.
12. AMENDMENT OR SUSPENSION OF THESE CIVIC OPERATING AGREEMENTS
12.1 Amendment of Civic Operating Agreements
These Civic Operating Agreements may be amended by an affirmative vote of at least three (3) City Councilmembers except as follows:
Where a provision of these Civic Operating Agreements requires action by a specific affirmative vote which is greater than three (3) City Councilmembers, then an amendment to that provision requires the same vote required for that provision.
12.2 Suspension of Civic Operating Agreements
Any provision of these Civic Operating Agreements not required by State law, or the Calistoga Municipal Code may be suspended by a vote of at least three (3) City Councilmembers.
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