AGENDA
Regular City Council Meeting
Council Chambers, Chowchilla City Hall
130 S. Second Street, Chowchilla, CA 93610
Tuesday, February 22, 2022
Closed Session: 6:00 p.m.
Open Session: 7:00 p.m.
City Hall is now open to the public for business. The City Council Chamber is OPEN to the public for City Council meetings, using the current COVID-19 prevention provisions.
City Council meetings will also be available to view and participate via Zoom. Please read Page 5 of this agenda packet for Zoom login and participation information.
Agendas for all City Council meetings are posted at least 72 hours prior to the meeting in the kiosk just outside of City Hall, 130 S. Second St., Chowchilla, CA 93610.
Agendas for Special Meetings are posted 24 hours prior to the meeting.
Any writing or 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.CityofChowchilla.org.
The City of Chowchilla complies with the Americans with Disabilities Act (ADA of 1990). The Council Chambers is accessible to the physically disabled. If you need special assistance, please call (559) 665-8615, ext. 102 at least 4 days prior to a regular meeting, 1 day for a special meeting.
CALL TO ORDER/ROLL CALL:
Mayor: John Chavez
Mayor Pro Tem: Ray Barragan
Council Members: Waseem Ahmed, Diana Palmer, Kelly Smith City staff and contract employees present at the meeting will be noted in the minutes.
CONSIDERATION OF APPROVAL OF AGENDA
Additions and/or Deletions:
PUBLIC ADDRESS – CLOSED SESSION
This time is reserved for members of the audience to address the City Council on items listed on the Closed Session agenda only. It is recommended that speakers limit their comments to no more than 3 minutes each.
CLOSED SESSION – 6:00 PM
1. CONFERENCE WITH LEGAL COUNSEL – ANTICIPATED LITIGATION – Significant Exposure to Litigation Pursuant to Paragraph (2) or (3) of Subdivision (d) of Section 54956.9
Potential cases: 1
City Council Meeting Agenda February 22, 2022
2. CONFERENCE WITH LEGAL COUNSEL – ANTICIPATED LITIGATION – Initiation of Litigation – Pursuant to Government Code Section 54956.9 Paragraph (4) Subdivision (d) (deciding whether to initiate litigation)
Number of Cases: 1
OPEN SESSION – 7:00 PM
PLEDGE OF ALLEGIANCE
INVOCATION:
CLOSED SESSION REPORT:
PRESENTATIONS/WORKSHOP - Section 1
PUBLIC ADDRESS
This time is reserved for members of the audience to address the City Council on items of interest that are not on the agenda and that are within the subject matter jurisdiction of the Council.
It is recommended that speakers limit their comments to no more than 3 minutes each and it is requested that no comments be made during this period on items on the Agenda.
Members of the public who are joining the meeting via Zoom and would like to address the Council on items on the agenda should follow the policy on page 5 of this agenda packet.
The Council is prohibited by law from taking any action on matters discussed that are not on the agenda. No adverse conclusions should be drawn if the Council does not respond to public comment at this time.
COUNCIL AND STAFF VERBAL REPORTS – Section 2
2.1 COUNCIL VERBAL REPORTS
Legislative, Collaborative Agency, Ad Hoc
2.2 STAFF VERBAL REPORTS
CONSENT CALENDAR – Section 3
3.1 Approval of the February 8, 2022 City Council Meeting Minutes (McClendon)
3.2 Second Reading with Option to Waive the Second Reading, and Adoption of an Ordinance Amending Title 6, Animals, of the City of Chowchilla Municipal Code (Hamilton)
3.3 Consideration and Adoption of a City Council Resolution Declaring the Existence of a Public Nuisance by Virtue of Certain Weed Growth (2022 Weed Abatement) (Gaumnitz)
City Council Meeting Agenda February 22, 2022
3.4 Consideration and Adoption of a City Council Resolution to Declare Certain Unused City Property as Surplus and Authorize Staff to Dispose of by Sale at Auction (Rogers)
3.5 Consideration and Acceptance of the Quarterly Fee Waiver Report (Pruett) PUBLIC HEARINGS – Section 4
4.1 Introduction, First Reading with Option to Waive the First Reading of an Ordinance to Adopt the Development Agreement for the Rancho Calera Project (Hamilton) DEFERRED BUSINES – Section 5
NEW BUSINESS – Section 6
6.1 Consideration of Approving the Madera County Economic Development Commission’s Proposed 2022-2023 Annual Basic Level Budget (Pruett)
6.2 Ratification of a Resolution of the City Council of the City of Chowchilla Declaring an Emergency Condition Necessitating Completion of the Police Department Water Pipe Rehabilitation Project and Ratifying Administrator Actions to Enter into an Agreement with Divcon, Inc. to Complete the Projects Necessary to Safeguard Life and Property and Continue Essential services of the City of Chowchilla (Pruett)
6.3 Consideration and Adoption of a City Council Resolution to Enter into a Facility Use Agreement with the Community Science Workshop Network to Provide Educational Workshops for the Youth of our Community and Authorizing the City Administrator or Designee to Execute Related Documents Thereto (Wisener)
6.4 Consideration and Adoption of a City Council Resolution Opposing Initiative 21- 0042A1, the Taxpayer Protection and Government Accountability Act, a State Ballot Measure Restricting Voters’ Input and Local Taxing Authority (Pruett)
6.5 Consideration and Adoption of a City Council Resolution Rescinding Resolution No. 06-21, Thereby Invalidating Emergency Services Director Order No. 02-2020 Regarding COVID Leave Pay; and Confirming Implementation of Senate Bill 114 (Pruett)
6.6 General (Verbal) Update Regarding the State of Emergency and COVID-19; Direction and/or Action (Pruett)
ANNOUNCEMENTS – Section 7
FEB 26
MAR 4
MAR 8
MAR 16
MAR 19
EDWARD RAY DAY
CAF HALL OF FAME DINNER, CHOWCHILLA FAIRGROUNDS, 7PM
CHOWCHILLA STAMPEDE HISTORIC CATTLE DRIVE, ROBERTSON BLVD., 10AM CITY COUNCIL MEETING, CITY HALL, 7PM
PLANNING COMMISSION MEETING, CITY HALL, 7PM
BEAUTIFY CHOWCHILLA, ED RAY PARK/SKATE PARK, 9AM
City Council Meeting Agenda February 22, 2022
ADJOURNMENT
I, Joann McClendon, CMC, City Clerk, do hereby declare under penalty of perjury that the foregoing agenda was posted at Chowchilla City Hall, 130 S Second Street, Chowchilla, CA and made available for public review on this 18th day of February, 2022 at or before 4:00pm.
Joann McClendon, CMC, City Clerk
*SPECIAL NOTICE REGARDING PUBLIC PARTICIPATION DUE TO
COVID-19*
Public meetings are still open to the public to attend in-person.
However, if you wish to attend remotely, please read the message below.
Consistent with AB 361 and Government Code section 54953, this meeting will be held remotely. Members of the public may access the meeting using the following information:
Zoom login instructions
Use the following url to start Zoom:
https://us06web.zoom.us/j/82516895028?pwd=VTdJeE05MU1UaENOaWF0V3FtaFMzUT09 Passcode: 55 47 74
---------------------------------------------------------------------------------------------------- To participate by phone, dial: 1-877-853-5247
Webinar ID: 825 1689 5028
Passcode: 55 47 74
Staff highly recommends that participants log into Zoom 15 minutes before the meeting begins to perform an audio check and to make sure you have optimal internet connection.
Options to participate / view / and listen to the meeting:
• If you wish to speak to the Committee on an item using the Zoom platform on your computer/laptop or smart phone, please use the “raise hand” icon and you will be unmuted when it is your turn to speak.
Please provide your name when unmuted. You will be able to speak to the Committee for up to 3 minutes.
• If you are calling in to the meeting only (no camera/video) and you wish to make a comment, press *9 to “raise your hand” and *6 to unmute yourself.
MINUTES
Regular City Council Meeting
Council Chambers, Chowchilla City Hall
130 S. Second Street, Chowchilla, CA 93610
Tuesday, February 8, 2022
Closed Session: 6:00 p.m.
Open Session: 7:00 p.m.
CALL TO ORDER/ROLL CALL: 6:04 p.m.
Mayor: John Chavez (arrived at 7PM)
Mayor Pro Tem: Ray Barragan
Council Members: Waseem Ahmed, Diana Palmer (arrived at 7PM), Kelly Smith City staff and contract employees present: City Administrator Rod Pruett, City Attorney Mary Lerner, Police Chief David A. Riviere, Jr., Fire Chief Fred Gaumnitz, Public Works Director Jason Rogers, Community & Economic Development Director Mark Hamilton, Recreation & Community Outreach Manager Stacy Wisener, IT System Administrator Carlos Berrocal, City Clerk Joann McClendon
CONSIDERATION OF APPROVAL OF AGENDA
Additions and/or Deletions:
Motion by Council Member Ahmed, Seconded by Council Member Smith to Approve the Agenda as Presented. Motion assed by roll call vote with Council Member Palmer and Mayor Chavez absent.
PUBLIC ADDRESS – CLOSED SESSION
No one present.
CLOSED SESSION – 6:06 PM
1. PUBLIC EMPLOYEE PERFORMANCE EVALUATION – Pursuant to Government Code Section 54957
Title: Police Chief
2. PUBLIC EMPLOYEE APPOINTMENT – Pursuant to Government Code Section 54957 Title: Police Chief
OPEN SESSION – 7:00 PM
PLEDGE OF ALLEGIANCE
INVOCATION: John Absher
CLOSED SESSION REPORT: No reportable action.
PRESENTATIONS/WORKSHOP - Section 1
Item 3.1
CLICK HERE
TO RETURN TO
THE AGENDA
City Council Meeting Minutes February 8, 2022
1.1 Certificate of Recognition – Stella Jain
1.2 Oath of Office – Kerri Williams, Finance Director
PUBLIC ADDRESS
Mr. Steve Burke addressed the City Council regarding opposing vaccine mandates for children.
Paige Hill, Treasurer of the Chowchilla District Chamber of Commerce, announced that they are recruiting a Chamber Manager.
COUNCIL AND STAFF VERBAL REPORTS – Section 2
2.1 COUNCIL VERBAL REPORTS
Legislative, Collaborative Agency, Ad Hoc
Council Member Smith judged the speech contest for the Rotary.
Council Member Palmer met with Public Works staff over the Beautify Chowchilla project and Earth Day activities. She met with MCTC staff to go over regional projects, attended the Chowchilla Task Force meeting and the CESD safety meeting.
2.2 STAFF VERBAL REPORTS
City Administrator Pruett is continuing to work with NBS regarding bonding/assessments, completed more assumptions for the development fee update; attended a Mid Valley Disposal meeting with Director Rogers regarding the contract and SB1383; attended a few economic development loan meetings; attended the CalCities Annual City Managers conference; and, tomorrow will be at the Tulare Ag Show.
Recreation & Community Outreach Manager Wisener is continuing training of new website software; collaborating with Public Works on the Ed Ray Park recreation building improvements; working on a facility use agreement for the science program, Annual Easter event and the February 26 Ed Ray Day social. She also announced that this year the annual fair parade is going to be held in May.
Public Works Director Rogers and staff met with PG&E to go over the restoration work for the roadway, all the sidewalk and curb and gutter that was disturbed during the work that took place on N. Front St. and Kings Avenue. We went over and reviewed the scope of repairs that still need to be made. The PG&E representative stated that he is waiting on their contractor to provide a schedule and was not able to provide a timeline for the repairs. Staff is and will continue pushing for timeline. We’ve even reached out to our PG&E government liaison in order to get a schedule for the repairs.
Humboldt Storm Drainage and Road Reconstruction Project Update: He and the City Administrator have been working with HCD to get their authorization to use funds. We were informed yesterday that they are working on an expedited review and approval and should have our authorization in a couple of weeks. We will then be able to advertise the project so that we can begin it this summer.
City Council Meeting Minutes February 8, 2022
We completed and submitted Clean California Local Grant Application. Caltrans expects to announce grant awards in March, and have completed and submitted for a CalRecycle grant related to SB 1383 to assist with the procurement requirements of SB 1383.
Community & Economic Development Director Hamilton reported that the O’Reily’s project had to stop construction due to issues with PG&E; a wall behind Cornerstone Church that separates the new home construction is being built; and, the ABC30 interview with the Mayor went well.
Finance Director Williams hired a temporary, full-time employee to cover for an employee who is out until May; still working on the Tyler software implementation; and, the auditors are on location.
Fire Chief Gaumnitz reported about weed abatement and is wrapping up the specs for the new fire engine.
Police Chief Riviere announced the April 9 K-9 Dinner, looking for donations for the auction/raffle prizes.
CONSENT CALENDAR – Section 3
3.1 Approval of the January 25, 2022 City Council/Redevelopment Successor Agency Meeting Minutes (McClendon)
3.2 Consideration and Approval of the January 2022 Check Register Report (Pruett)
3.3 Consideration and Adoption of a City Council Resolution (08-22) Authorizing Continued Use of Remote Teleconferencing Provisions (AB 361 and Government Code Section 54953) (McClendon)
3.4 Consideration and Adoption of a City Council Resolution (09-22) Approving a Lease Agreement with the Chowchilla District Chamber of Commerce (Wisener) Motion by Council Member Palmer, Seconded by Mayor Pro Tem Barragan to Approve the Consent Calendar as Presented. Motion passed unanimously by roll call vote.
PUBLIC HEARINGS – Section 4
4.1 Introduction, First Reading with Option to Waive the First Reading of an Ordinance Amending Title 6, Animals, of the City of Chowchilla Municipal Code (Hamilton) Mayor Chavez opened the public hearing at 7:30 p.m.
No one came forward for or against the item.
Mayor Chavez closed the public hearing at 7:31 p.m.
Motion by Council Member Ahmed, Seconded by Council Member Smith to Waive the First Reading of an Ordinance Amending Title 6, Animals, of the City of Chowchilla Municipal Code.
Motion passed unanimously by roll call cote.
The item will be on the next agenda for the Second Reading and Adoption.
City Council Meeting Minutes February 8, 2022
DEFERRED BUSINES – Section 5
NEW BUSINESS – Section 6
6.1 Consideration and Adoption of a City Council Resolution (10-22) Authorizing the Submittal of Application(s) for all CalRecycle Grant and Payment Programs for Which the City of Chowchilla is Eligible (Rogers)
A revision was made to the resolution, adding, “The City Administrator, or designee, is hereby authorized and empowered to execute in the name of the City of Chowchilla, all documents, including but not limited to applications, agreement, amendments and requests for payment, necessary to secure funds and implement the approved grant or payment project”.
Motion by Council Member Palmer, Seconded by Mayor Pro Tem Barragan to Approve City Council Resolution #10-22, Authorizing the Submittal of Application(s) for all CalRecycle Grant and Payment Programs for Which the City of Chowchilla is Eligible, as amended. Motion passed unanimously by roll call vote.
6.2 General (Verbal) Update Regarding the State of Emergency and COVID-19; Direction and/or Action (Pruett)
ANNOUNCEMENTS – Section 7
FEB 16 PLANNING COMMISSION MEETING, CITY HALL, 7:00 PM
FEB 22 CITY COUNCIL MEETING, CITY HALL, 7:00 PM
FEB 26 EDWARD RAY DAY
CAF HALL OF FAME DINNER, CHOWCHILLA FAIRGROUNDS, 7:00 PM
ADJOURNMENT
Mayor Chavez adjourned the Tuesday, February 8, 2022 City Council Meeting at 7:38 p.m.
ATTEST: APPROVED:
Joann McClendon, CMC, City Clerk Mayor John Chavez
REPORT TO THE CITY COUNCIL
Item 3.2
CLICK HERE
TO RETURN TO
THE AGENDA
Meeting of: February 22, 2022
AGENDA SECTION: Consent
SUBJECT: Second Reading With Option to Waive the First Reading and Adoption of an Ordinance Amending Title 6, Animals, of the City of Chowchilla Municipal Code
PREPARED BY: Stacy Weaver, Deputy City Clerk & Secretary II REVIEWED BY: Mark Hamilton, Director of Community & Economic Development Joann McClendon, CMC, City Clerk
ATTACHMENTS: Ordinance
Track Changes Version of Ordinance
REVIEWED BY
ADMINISTRATOR ☒ REVIEWED BYATTORNEY ☒ REVIEWED BY FINANCE ☒ RECOMMENDATION:
Staff recommends the City Council waive the second reading of the ordinance amending Title 6 of the Chowchilla Municipal Code and adopt the ordinance.
BACKGROUND:
In 1998, the City Administrator asked the Chief of Police to review Title 6 – Animals section 6.04 – Dogs, Cats, and Other Domesticated Animals and make revisions. The first public hearing to introduce the revised chapter was read on January 23, 1998. The second hearing concluded on February 4, 1998, and Ordinance No. 405-98 passed unanimously approved by roll call vote. The Chowchilla Municipal Code Ordinance is required to undergo a second reading prior to adoption.
REASON FOR RECOMMENDATION:
In 2021, Community & Economic Development began working with the City’s Police Department and legal counsel updating Title 6 of the Chowchilla Municipal Code. The draft revision to Title 6 is attached for review. The whole Chapter was reviewed for grammar, pronouns, fees, and cleaning up any uncertainty regarding the City’s processes. The revision primarily focuses on Section 6.04.045, “Maximum Number of Domestic Animals,” Section 6.04.210, “Vaccination,” and Section 6.04.260, “Animal Licenses,” with the addition of Potbelly Pigs.
The changes have been made to reflect a maximum number of domesticated animals allowed per household. Staff added rabbits, egg laying hens and potbelly pigs as domesticated animals. The egg laying hens were added for those residents that want to have fresh eggs. Rabbits were added for those residents that participate in 4H or other school-based clubs so they can have rabbit projects. Potbelly pigs were added due to their popularity as a domestic animal.
FISCAL IMPACT:
FY 2021/22 Budget accounting code 100-1610-0000-3374-000 initial balance was $14,000.00. As of January 5, 2022, the current balance is $12,954.00. After calculating expenses for publishing the public hearing notices to the Madera Tribune and updating our municipal code book through Municode, the approximate cost to complete the amendment will be $1,032.00.
ALTERNATIVES:
The City of Chowchilla to continue using the current Municipal Code Title 6.04 - Dogs, Cats, and Other Domesticated Animals.
ACTIONS FOLLOWING APPROVAL:
• Within fifteen (15) days of adoption, the Clerk's Office will publish the summary of the amended ordinance and the voting results of who was for or against the amendment. • Post amended ordinance in the kiosk for public review. • After thirty (30) days, the amended ordinance goes into effect. - CODE OF ORDINANCES
Title 6 - ANIMALS
Chapter 6.04 DOGS, CATS AND OTHER DOMESTICATED ANIMALS
Title 6 - ANIMALS
Chapters:
Chapter 6.04 - DOGS, CATS, AND OTHER DOMESTICATED ANIMALS Sections:
6.04.010 - Definitions.
When used in this chapter, the words defined in this section shall have the meanings prescribed in this section.
A. " "Animal" means any members of the kingdom Animalia exclusive of homo sapiens.
B. " "Animal control" or "animal control division" means the division of the Chowchilla police departmentPolice Department, which is established as the animal control agency in the cityCity.
C. " "Animal control center" means the facilities provided by the cityCity for the impoundment, relinquishment, quarantine, and adoption or sale of animals.
D. “Animal Nuisance. Within the meaning of Title 6, "animal nuisance" shall mean” means such actions or behaviors of an animal (excluding those agricultural activities permitted by Chowchilla Municipal Code) which interfere with the rights of persons to the enjoyment of life or property by creating chronic annoyance, disturbance, or discomfort to neighbors or others in close proximity to the premises where the animal is kept, harbored or maintained, and shall include, but not be limited to the following:
1. Causing fouling of the air by the unpleasant odor of accumulated fecal waste or urine;
2. Causing unsanitary conditions in enclosures or surroundings;
3. Making excessively loud or disturbing noise; or
4. 3. Making excessively loud or disturbing noise; meaning the utterance of barks, howling, whining cries, screeching, squeaking, squawking, or any noise which is loud, frequent, and continual over a period of time and which disturbs the peace and comfort of a person or persons of ordinary sensitivity: (1) excessive for a continuous period of ten (10) minutes; or (2) excessive noise for a continuous period of five (5) minutes on three (3) separate occasions within any sixty (60) minute period. “Continual” shall mean excessive noise with intervals of less than sixty (60) seconds between the noise. It shall not be deemed excessive noise if, at the time of the noise, a person or persons were teasing or provoking the animal or trespassing or threatening to trespass upon the owner’s private property; or
4. Causing offense or danger to public health, safety, or welfare by virtue of the number or types of animals maintained.
E. " "At large" means an animal off the premises of its owner and either:
1. Not under the control and in the immediate presence of the owner; or
2. If a dog, not under physical restraint.
F. " "At large causing injury" means an animal off the premises of its owner as outlined in subsection E of this section which through direct or indirect action causes or inflicts injury to any person. The injury is described as a wound or other type of injury which requires medical treatment.
G. " "Animal control managerControl Manager" means the chiefChief of policePolice and his or hertheir duly authorized staff.
H. " "Cattery" means any enclosure, premises, building, structure, lot, or area in or on which five or more cats of at least six months of age are kept, harbored, or maintained. If a person has five or more cats, they will be required to obtain a permit under Section 6.04.270(C)(2) of this chapter.
I. " "Curb" means to so restrain or control an animal so that it does not defecate on property other than that of its owner except by the expressed consent of the owner of such other property.
J. " "Dangerous animal" means any animal including a dog (except a dog assisting a peace officer engaged in law enforcement duties) which can be categorized in any one or more of the following manners:
1. Any animal which behaves in such a manner that the owner thereof knows or should know that the animal poses a threat to public safety;
2. Any animal which, because of its size, training, behavior, physical nature, or vicious propensity, would threaten public safety were it not controlled as prescribed in this chapter;
3. Any animal which threatens or attacks any person in a manner which requires a substantial defensive action by any person to prevent bodily injury;
4. Any animal which threatens or attacks any other animal belonging to another when such other animal is confined upon private property or otherwise lawfully restrained and controlled.
K. " "Dangerous behavior" means any acts committed by an animal as defined in subsection J of this section.
L. " "Director" means the chiefChief of policePolice or designee.
M. "Dog "Animal license" as used in this title, means a metallic tag which will be firmly affixed to the animalsanimal’s collar on which is imprinted; the phone number and name of the issuing agency, and a serial number unique to the individual tag. These tags are issued as outlined in Section 6.04.260 of this chapter.
N. "Domestic animal" means dogs and cats, except as limited in subsection AC of this section, as well as horses, donkeys, mules, burros, cattle, sheep, goats, swine (including pot bellied pigs), llamas, camels, rabbits and fowl commonly kept or raised in the county as farm or livestock animals. “Domestic animal” means household pets ordinarily permitted in a place of residence, such as: dogs; cats; guinea pigs; rats; rabbits; mice; budgies, canaries, cockatiels, cockatoos, egg-laying hens, finches, lorikeets, lovebirds, macaws, parakeets, parrots, toucans, and similar birds; potbellied pigs (not farm pigs) as provided for in this chapter; turtles; lizards and snakes as permitted in this chapter; and other similar animals generally considered to be kept as pets, excluding farm animals.
O. " "Feral animal" means any domestic animal which is known to live in a wild or semi-wild state without the benefit of an owner or any domestic animal which has escaped for a substantial period of time from the care of its owner and is existing in a wild state without the benefit of domestication.
P. " "Health department" means the health department of the countyCounty of Madera.
Q. " "Health officer" means the directorDirector of the health departmentHealth Department of the countyCounty of Madera or otheranother person duly authorized by the directorDirector of the health departmentHealth Department or designated by the boardBoard of supervisorsSupervisors to act as the health officer.
R. ”Hearing..” For the purposes of this chapter, "hearing" means the process prescribed in Section
6.04.300 of this chapter for the redress of issues relating to or arising from the enforcement of this chapter including, but not limited to, dangerous and vicious animals, animal nuisances, permits, or such other administrative matters as pertain to the application of this chapter.
S. " "Hearing officerOfficer" means the person appointed by the directorDirector to preside at and render judgments from hearings transacted under the authority of this chapter. The person may be an employee of the cityCity who is not assigned to animal control or otherwise subordinate to the manager thereof, or a person who is not an employee but is retained to provide such services.
Any such hearing officerHearing Officer shall be qualified by training or experience or shall be an attorney or an administrative law judge.
T. " "Impoundment" means the taking up and confining of an animal by the animal control managerAnimal Control Manager in accordance with the provisions of this chapter or other applicable law or regulation.
U. " "Kennel" means any enclosure, premises, building, structure, lot, or area in or on which five or more dogs of at least four months of age are kept, harbored, or maintained. If a person has five or more dogs, they will be required to obtain a permit under Section 6.04.270(C)(2)).
V. " "Lawful fence" as used in this chapter means a fence of sufficient height, strength, and capacity; and which is maintained in good repair, to prevent the ingress and egress of the animals housed, controlled, or grazed on the property. Except as provided by Section 17121 of the California Food and Agriculture Code, no fence is a lawful fence within the meaning of this section unless it is a height of at least five feet, is securely affixed at its base, and maintained in good repair.
W. " "Owner" means the primary or responsible person who possesspossesses, has title to or an interest in, harbors, provides care, or has control, custody or possession of an animal, and the verb of "to own" includes all these shades of meaning.
X. " "Person" means fictional entities such as corporations, estates, associations, partnerships, and trusts, as well as one or more individual human beings or responsible members of the household.
Y. " "Vaccination" means the inoculation of an animal with a vaccine approved by and in the manner prescribed by the stateState of California, Department of Health Services.
Z. " "Veterinarian" means a person licensed by the stateState of California to practice veterinary medicine.
AA. " "Vicious animal" means any animal including a dog (except a dog assisting a peace officer engaged in law enforcement duties) whichthat has, on one or more occasions, committed any one or more of the following acts:
(1. Physically attacked, mauled) Seriously bitten, inflicted severe injury on, or physically injured by biting any killed a human being when unprovoked. (2) Bitten a person, without provocation, at a place other causing a less than uponsevere injury when unprovoked on two (2) separate occasions within the private property where the prior thirty-six (36) month period.
(3) Killed a domestic animal is maintained by the owner; when unprovoked.
2. Physically attacked, mauled, or physically injured by biting any person, without provocation, when the owner thereof knows or should reasonably know that the animal poses a threat to public safety and has made no substantial effort to prevent the attack or when the owner has purposefully encouraged or commanded the animal to attack, maul, or physically injure any person;
3. Physically attacked and injured by biting any animal, without provocation, which is lawfully maintained on private property not belonging to the owner of the offending animal;
4. Physically attacked and injured by biting any animal, without provocation, which is lawfully maintained or controlled upon public property. (4) Seriously bitten or inflicted severe injury on a domestic animal when unprovoked on two (2) separate occasions within the prior thirty-six (36) month period. (5) Previously was determined to be and currently is listed as a potentially dangerous animal and continues the behavior which led to the potentially dangerous determination.
AB. " "Vicious behavior" means any acts committed by an animal as defined in subsection AA of this section.
AC. " "Wild animal" means any of the following:
1. Following members of the Class Reptilia:
a. Order Ophidia (such as, but not limited to, racers, boas, water snakes, and pythons) over three feet in length; and
b. Order Loricata (such as, but not limited to, alligators, caymans, and crocodiles) over three feet in length;
c. Order Sauria (excepting iguanas) over three feet in length.
2. Following members of the Class Aves:
a. Order Falconiformes (such as, but not limited to, hawks, eagles, and vultures, which are not kept pursuant to federal or state permit); and
b. Subdivision Ratitae (such as, but not limited to, ostriches, rheas, cassowaries, emus)
3. Following members of the Class Mammalia:
a. Order Carnivora, expressly excepting the domestic dog (canisCanis familiaris) and the domestic cat (felisFelis catus), but including, but not limited to, the family Felidae (such as ocelots, margays, tigers, jaguars, leopards, and cougars), the family canidaeCanidae (such as wolves, dingos, coyotes, and jackals); and b. Order Marsupialia (such as kangaroos and opossums); and c. Order Chiroptera (bats); and
d. Order Edentata (such as sloths, anteaters, and armadillos); and e. Order Proboscidea (elephants); and
f. Order Primata (including, but not limited to, monkeys, chimpanzees, and gorillas); and order
g. Order Ungulata (expressly excluding any animal which would be included within the definition of "domestic animal" in subsection O of this section), including, but not limited to, antelope, deer, and bison.
4. Any nondomesticnon-domestic species when kept, maintained, or harbored in such numbers or in such a manner as to constitute the likelihood of danger to the animals themselves, to human beings, or to the property of human beings.
5. Any species of animal which is venomous to human beings, whether its venom is transmitted by bite, sting, touch, or other means, except honey-producing bees.
6. Any hybrid animal whichthat is part wild animal and is capable of transmitting rabies, except livestock hybrids, and for which no rabies prophylaxis is recognized or authorized by the stateState of California.
(Ord. 405-98 § 1 (part), 1998)
6.04.020 - Short title.
This chapter shall be known as, and may be cited and referred to as, the "animal control ordinance." (Ord. 405-98 § 1 (part), 1998)
6.04.030 - Legal effect of license.
A. The issuance by animal control and the acceptance by the owner of any license or permit to keep an animal as provided for herein is prima facie evidence that the owner agrees to comply with the terms and conditions set forth in this chapter and that the owner has satisfied the basic licensing requirements under this chapter. Such issuance shall be given no evidentiary weight to indicate that the owner has conformed to zoning regulations, building regulations, health and safety regulations or to any other applicable rule, regulation or statute. For purposes of the administration of this chapter, if, pursuant to the issuance of official written notice, approval has been given by the office or agency responsible for the administration of the rule, regulation, or statute in question, such approval shall be deemed prima facie evidence that the matter approved is in conformance with the rule, regulation or statute in question.
B. Exemptions. The licensing regulations in this chapter aredo not applicableapply to the following:
1. Owners of animals kept as all or part of the stock of (a) nonprofit zoological gardens open to the public, (b) pet shops, (c) circuses, or (d) animal exhibits when such enterprises are operated under business licenses granted by the cityCity.
2. Service dogs that have been trained and certified to assist the blind, deaf, or physically challenged.
(Ord. 405-98 § 1 (part), 1998)
6.04.040 - Prohibited conduct.
No owner of any animal, wild or domestic, shall permit or suffer the animal to do any of the following:
A. Be at large;
B. Bite, scratch, or claw any human being or other animal without provocation; C. Make loud or disturbing noises without provocation, including, but not limited to, chronic howling, yowling, barking, whining, or other utterances.C. Act or be kept in such a manner as to constitute an animal nuisance within the meaning of this chapter. Nothing contained herein shall be construed to apply to animal noises emanating from legally operated veterinary hospitals, humane societies, animal shelters, farm or agricultural facilities, or areas where the keeping of farm animals or fowl is permitted;
D. Act or be kept in such a manner as to constitute an animal nuisance within the meaning of this chapter;
E. Endanger the life or health of othersany person;
F. E. Damage the property of othersany person or entity; or G. F. Be afflicted with and not be receiving medically accepted treatment for zoonotic or other communicable diseasediseases.
(Ord. 405-98 § 1 (part), 1998)
6.04.045 - Maximum number of domestic animals.
The number of all domestic animals allowed per household or on any premises shall not exceed five (5) animals in total, and not more than:
A. Five (5) dogs;
B. Five (5) cats;
C. Two (2) potbellied pigs;
D. Three (3) rabbits;
E. Three (3) egg-laying hens.
Additional animals may be permitted only if the zoning requirements for the premises allow for the operation of a kennel or cattery, and the owner or occupant has obtained the necessary permits and/or approvals to operate a kennel or cattery on the premises, as required by the Chowchilla Municipal Code and any other applicable law.
6.04.050 - Animals in vehicles.
A. No person other than an individual transporting working dogs within agricultural or rural areas of the cityCity shall transport or carry on any public highway or public roadway, any animal, wild or domestic, in or by a motorized vehicle unless the animal is as follows:
1. Safely enclosed within the vehicle, in such a manner not to interfere with the operation of the vehicle;
2. Protected within a secured container carried within, upon, or by such a vehicle; or
3. Securely cross-tethered or secured to such vehicle by rope, chain, or other device(s) in a fashion which prevents injury to the animal from falling from, being ejected from, or jumping from said vehicle.
B. No person shall leave an animal, wild or domestic, in any unattended motorized vehicle without adequate ventilation, in unhealthful conditions which adversely affect its health, safety, or well-being. (Ord. 405-98 § 1 (part), 1998)
6.04.060 - Fouling.
It shall be the duty of any person having custody of a dog to curb said dog and to immediately remove any feces deposited by saidthe dog on any public property to a proper receptacle. It shall also be the duty of any person having custody of a dog to curb said dog and immediately remove any feces deposited by said dog onor private property not belonging to the dog owner, to a proper receptacle.
Unsighted persons while relying on a guide dog shall be exempt from this section. (Ord. 405-98 § 1 (part), 1998)
6.04.070 - Dogs at large.
A. No person shall permit or suffer a dog to stray from private property owned or legally possessed by the dog owner or the person who has a right to control the dog unless the dog is restrained by a leash or lead not exceeding eight feet in length, except in the following situations:
1. When the dog is assisting a peace officer who is engaged in law enforcement duties or when the dog is participating in a search and rescue effort at the specific request of a law enforcement authority;
2. When the dog is enrolled in and actuallyat that time participating in a dog training or obedience course, exhibition, or competition conducted by an organization on private or public property with the permission of the owner or operator of the grounds of facilities;
3. When the dog is assisting the owner or person in charge of livestock in the herding or control of such livestock.
B. Dog at Large Causing Injury. Any owner of any dog which is running at large as described in this section that causes injury through indirect or direct action is guilty of a misdemeanor. (Ord. 405-98 § 1 (part), 1998)
6.04.080 - Livestock at large.
A. No person shall permit or suffer livestock to stray from private property owned by the owner of such livestock, or from private property to which such owner has a right of possession, except in the following situations:
1. When the livestock is being led, driven, or conducted along a public road or street during daylight hours under the supervision and control of its owner;
2. When the livestock is on public property with the consent of the owner or operator of the grounds or facilities, or on private property with the consent of the owner, lessee, or other person in control thereof, and such property is lawfully fenced;
3. When the livestock is on designated open range areas.
B. The owner of any livestock found at large in violation of this section shall, in addition to any other penalties imposed, be liable for the salaries, costs, and other expenses incurred by the division in restraining, capturing, or rescuing such livestock if such owner is responsible for the livestock being at large. The salaries, costs, and expenses of the division shall be determined by the director with the concurrence of the city auditor.
(Ord. 405-98 § 1 (part), 1998)
6.04.090 - Lawful fence.
Any person who owns or is responsible for the care, custody, or control of livestock must maintain the animals within a lawful fence as outlined in Food and Agriculture Code Sections 17121 and 17152. A lawful fence is good, strong, substantial, and sufficient to prevent the ingress and egress of the animals housed. No wire fence is a good, substantial fence within the meaning of this section unless it has a minimum of three tightly stretched barbed wires, securely fastened to posts of reasonable strength and not more than ten feet apart. One wire must be at least four feet above the ground. Unless otherwise indicated in this chapter, violation of this section is an infraction. (Ord. 405-98 § 1 (part), 1998)
6.04.100 - Proper care.
The owner of any animal, wild or domestic, shall provide proper and adequate food, water, shelter, qualified medical care, and attention for such animal at a level which insuresthat ensures the animal's safety, good health, and well-being. The owner shall maintain any enclosures or surroundings where the animal is kept in a sanitary condition.
(Ord. 405-98 § 1 (part), 1998)
6.04.110 - Obstruction.
Any person who prevents, resists, threatens, or obstructs an attempt by the animal control managerAnimal Control Manager pursuant to this chapter to inspect or impound an animal or any person who conceals or secretes any animal subject to inspection or impoundment or any owner who fails to relinquish upon lawful demand any animal to be impounded shall be guilty of a misdemeanor. (Ord. 405-98 § 1 (part), 1998)
6.04.120 - Misrepresentation.
No person shall willfully make a false or misleading statement or representation to the animal control managerAnimal Control Manager acting in his or hertheir official capacity, regarding the ownership or right to custody or control of an animal for which a permit or license is required, or regarding the ownership of an animal redeemed from, relinquished to, impounded by, or taken up by the animal control managerAnimal Control Manager pursuant to this chapter. (Ord. 405-98 § 1 (part), 1998)
6.04.130 - Unfounded emergency visit.
A. The animal control managerAnimal Control Manager is authorized to charge and collect a fee from any person who calls the animal control managerAnimal Control Manager to his/hera residence requesting emergency assistance andwhen, upon his arrival, the animal control managerAnimal Control Manager determines either (1) that the emergency is unfounded, or (2) that the person requesting the assistance is not at the residence.
B. The amount of the fee authorized under this chapter shall be the weighted average hourly rate for the costs to the animal control division of such services as determined annually by the cityCity of Chowchilla auditor'sAuditor's office.
(Ord. 405-98 § 1 (part), 1998)
6.04.140 - Duty to report bite.
It is the duty of any person having knowledge that any animal capable of transmitting rabies has bitten or otherwise exposed to rabies a human being within city of Chowchilla to immediately report that fact to the health officer or the animal control managerAnimal Control Manager and to furnish complete information thereof, including, but not limited to, any knowledge of the whereabouts of said animal. (Ord. 405-98 § 1 (part), 1998)
6.04.150 - Notice of escape.
Any person keeping, harboring, maintaining, or owning a dangerous, vicious, or wild animal that escapes from its confinement shall immediately notify the animal control managerAnimal Control Manager of such escape. Notification shall first be by phone and shall be followed with a written notification whichthat includes the following information, as known:
A. The date, place, and time of the animal's escape;
B. A description of the animal and its condition at the time of escape; and C. The name, address, and residential and occupational telephone numbers of the owner of the animal.
(Ord. 405-98 § 1 (part), 1998)
6.04.160 - Authority to set fees.
Unless a fee amount is specifically provided within this chapter, the city councilCity Council shall by resolution, from time to time, establish fees including but not limited to, fees for impoundment, licensing, kenneling, adoption, and boarding of animals.
(Ord. 405-98 § 1 (part), 1998)
6.04.170 - Incidental fee.
The animal control managerAnimal Control Manager is given the authority to charge fees for services regarding transporting, receiving, surrendering, tranquilizing, and cremating of animals as set forth in the city of Chowchilla police department, division of animal controlPolice Department, Division of Animal Control fee schedule. In addition to the foregoing, the animal control managerAnimal Control Manager may charge fees to recover the costs of services not specifically mentioned or required by this section up to a maximum of twenty-five dollars with the City Council’s approval of the city council. (Ord. 405-98 § 1 (part), 1998)
6.04.180 - Jurisdiction.
The animal control managerAnimal Control Manager, under direction, shall supervise the animal control center and all animal control personnel.
A. Responsibility. The animal control managerAnimal Control Manager is responsible for the regulation and the enforcement of this chapter and other laws dealing with animals existing within the incorporated territory of the cityCity. The duties of the animal control managerAnimal Control Manager shall include, but not be limited to, the following:
1. To administer the animal control center and keep such records as may be required;
2. To take up and impound animals which are in violation of this chapter;
3. To remove and dispose of the carcass of any animal found on any city roadway, street, alley, or other public place;
4. To quarantine animals and to cooperate with the county health officer;County Health Officer;
5. To administer licensing and permit programs as provided for in this chapter; and
6. To abate animal nuisances.
B. Rules and Regulations. The animal control managerAnimal Control Manager may formulate rules and regulations in conformity with, and for the purpose of carrying out the intent of this chapter. Compliance with such rules and regulations shall be a prerequisite to the issuance and continued validity of any license or permit provided herein.
C. Authority to Arrest and to Issue Citations. In the performance of his or hertheir duties, the animal control managerAnimal Control Manager and each animal control officerAnimal Control Officer shall have the authority and immunities of public officers and employees as set forth in California Penal Code Section 836.5 to make arrests without a warrant or to issue citations pursuant to Chapter 5C (commencing with Section 853.5) of Title 3 of Part 2 of the California Penal Code whenever he or she hasthey have probable cause to believe that the person to be arrested has committed a violation of this title or of any ordinance or statute which he or she hasthey have the duty to enforce.
D. Authority to Pursue. In the performance of his or hertheir duties, the animal control managerAnimal Control Manager and each animal control officerAnimal Control Officer shall have the authority, when in pursuit of an animal which is in violation of a provision of this code, to go upon the property of the owner or a third person for the purpose of impounding the animal, provided that in the course of such pursuit he or she shall exercise reasonable care to avoid causing damage to the property and shall comply with Section 6.04.190(B) of this chapter.
E. Authority to Use Tranquilizer Equipment. In the performance of his or hertheir duties, the animal control managerAnimal Control Manager and each animal control officerAnimal Control Officer shall have the authority to employ the use of tranquilizer equipment and all other animal control devices commonly used by other animal control agencies located within the state of California.
F. Authority to Destroy. The animal control managerAnimal Control Manager shall have the authority, when a clear and present danger to public safety exists and reasonable means of capture have failed, to direct the humane destruction of an animal in the field. (Ord. 405-98 § 1 (part), 1998)
6.04.190 - Animals subject to impoundment.
A. Any animal shall be taken up and impounded at the animal control center (or at such other place as may be approved by the director)Director if, to the knowledge of the animal control managerAnimal Control Manager, any of the following conditions exist:
1. Said animal is engaged in an activity or existing in a condition prohibited by this chapter;
2. Said animal is, or will be, without proper care due to the injury, illness, death, incarceration, or other involuntary absence of the owner or person responsible for the care of such animal; or
3. Said animal is required to be quarantined.
B. Impoundment on Private Property. An animal which has become subject to impoundment while off the property of its owner and has returned to the same shall not be impounded if the owner is present to accept a citation for the offense, unless, except as provided in Section 53074 of the California Government Code, a clear and present danger to public safety exists by virtue of the animal remaining upon the property.
C. Notice of Impoundment. When an animal wearing a current cityCity of Chowchilla license is impounded, the animal control managerAnimal Control Manager shall attempt to notify the owner of record by telephone or by mail of the date and place of impoundment or removal.
D. Duration.
1. All impounded dogs found wearing a current city of Chowchilla dog license tag shall be kept in the animal control center or other authorized place of impoundment for a period of not less than five calendar days after the day of impoundment unless redeemed within such period except as provided in subsection F of this section.
2. All impounded dogs not wearing a current city of Chowchilla dog license tag shall be kept in the animal control center or other authorized place of impoundment for a period of not less than three calendar days after the day of impoundment unless redeemed within such period except as provided in subsection F of this section.
3. Any animal impounded pursuant to subsection (A)(2) of this section shall be kept in the animal control center or other authorized place of impoundment for at least ten calendar days.
4. Any other impounded animal shall be kept in the animal control center for at least three calendar days after the impoundment unless it is redeemed within such period.
5. Any animal which is voluntarily surrendered to or deposited with the animal control managerAnimal Control Manager by the owner shall not be deemed to be impounded and need not be kept or retained for any minimum period of time.
6. Any feral animal shall not be kept or retained for any minimum period of time.
7. Any impounded animal which is of a type referred to in Section 17003 of the California State Agricultural Code shall be kept in the animal control center or other authorized place of impoundment for at least five calendar days unless it is redeemed within that period.
E. Redemption.
1. The owner of any animal impounded may, redeem the animal by paying all fees and charges accrued at any time before the expiration of the period of impoundment, redeem the animal by paying all fees and charges accrued provided, however and, if the animal is one which is subject to the licensing provisions of this chapter, theby satisfying all licensing requirements must be satisfied before the animal is released. (Except animals that are currently quarantined for a bite.)
2. If the impounded animal is not currently vaccinated against rabies as required, and the owner has not previously been cited for failure to license, or the animal has not been previously impounded within the preceding thirty days, the animal may be released to the owner upon payment of all fees required (including the license fee and penalty fee, if applicable) on condition that the owner shall:
a. Have the animal vaccinated for rabies in accordance with Section 6.04.210 of this chapter within fourteen calendar days; and
b. Exhibit a valid certificate of such vaccination to the animal control managerAnimal Control Manager within fourteen calendar days, at which time the license will be issued. Otherwise, the subject animal must be vaccinated against rabies by a veterinarian designated by the animal control managerAnimal Control Manager prior to redemption and the. The cost of the vaccination and any other costs accrued accomplishing the vaccination, including additional impoundment fees, must be satisfied before the animal is released.
F. Disposition of Impounded and Surrendered Animals.
1. Except as otherwise provided in this chapter, an impounded animal which is not redeemed within the applicable holding period specified in this chapter or an animal voluntarily surrendered to the animal control managerAnimal Control Manager, except an animal that has been impounded for quarantine or is known to have bitten a human or to have demonstrated dangerous or vicious propensities, may, at the discretion of the animal control managerAnimal Control Manager, be sold for its fair market value as determined by the animal control managerAnimal Control Manager and upon reasonable conditions as the animal control managerAnimal Control Manager finds appropriate or may be destroyed.
2. When any unsterilized dog or cat is to be sold pursuant to this section, prior to the delivery of the animal there shall be deposited by the purchaser with the animal control managerAnimal Control Manager an amount of money which shall be a deposit for spaying or neutering of the purchased animal pursuant to Food and Agriculture Code Sections 3053 and 31751. The amount of said deposit shall be designated by the animal control managerAnimal Control Manager and shall cover the approximate average cost of spaying or neutering. It shall not exceed the maximum fee set forth in Food and Agriculture Code Sections 3053 and 31751. The deposit shall be refunded to the purchaser of the animal upon presentation of written proof of spay or neuter to the animal control manager.Animal Control Manager. The written proof must be provided within sixty days, in the case of a dog or cat over the age of six months and within six months for dogs and cats under six months of age. All refunds are processed through the city auditor'sCity Auditor's office. Failure to provide written proof of sterilization within the required time period will result in the forfeiture of the deposit. Those funds that have been deemed forfeited may be deposited in the city treasuryCity Treasury for uses set forth in Sections 3053 and 31751 of the Food and Agriculture Code. Further, it shall constitute a misdemeanor to fail to sterilize any dog or cat adopted from the cityCity’s animal shelter, and the unsterilized animal may be impounded.
3. When an animal is sold, the receipt issued by the animal control managerAnimal Control Manager shall be valid title to the purchaser.
4. Notwithstanding any other provision of this chapter to the contrary, an impounded animal which is determined by the animal control managerAnimal Control Manager or the health officerHealth Officer to constitute a health hazard or which is critically injured or ill may be destroyed or otherwise disposed of as ordered by the animal control managerAnimal Control Manager upon the concurrence of the health officerHealth Officer or a licensed veterinarian.
G. Livestock Hauling Fee.
1. When it is necessary for the impoundment of livestock or large quadruped animals to utilize specialized hauling equipment, the owner of the animals shall be charged a livestock hauling fee.
2. A The Animal Control Manager shall establish a schedule of fees for hauling livestock shall be established by the animal control manager. Such schedule of fees shall reflect the approximate cost of impounding and hauling the livestock or other large animals, including labor and transportation.
H. Impoundment Fees. The animal control managerAnimal Control Manager shall charge and collect fees for every impounded animal when claimed and before release. The amount of said fees shall be established as provided in Section 6.04.160 of this chapter.
I. Absence of Liability. No liability shall be incurred for the disposition of any animal made pursuant to the provisions of this chapter.
J. Relief from Fees. Upon the recommendation of the animal control managerAnimal Control Manager to the directorDirector and with the approval of the city councilCity Council, the fees provided for by this chapter may be waived when animals have been impounded because of civic disorganization, disruption, or other conditions of civil emergency or because of devastation due to fire, flood, earthquake, storm, or other natural calamity.
K. Waiver of Fees. The directorDirector may authorize the animal control managerAnimal Control Manager to waive, in full or in part, fees, exclusive of licensing, or permit fees, if necessary to accomplish the protection of animal or public health, safety, or welfare, or if the owner provides satisfactory evidence that he or she was not at fault, explicitly, for the impoundment or keeping of the animal at the animal control center.
L. Rental of Traps. Traps for live-trapping of animals may be maintained and rented to the public by the animal control manager.Animal Control Manager. The period of use shall be seven calendar days.
A deposit shall be collected for each trap and shall be refunded upon return of the trap in good condition. The period of useAnimal Control Manager shall be seven calendar days. Aestablish a schedule of fees for trap deposit and rental shall be established by the animal control manager. (Ord. 405-98 § 1 (part), 1998)
6.04.200 - Quarantine.
A. 1. The animal control managerAnimal Control Manager shall ensure that all animals falling into the following categories shall be isolated or quarantined or destroyed and a rabies specimen taken at the animal control center or at such other place and under such conditions as are prescribed by the health officer or authorized according to other applicable California State laws and regulations:
a. Known rabid animals;
b. Suspected rabid animals;
c. Animals that have bitten or otherwise exposed a human to rabies; and d. Animals of a species subject to rabies which have been bitten by a known rabid or suspected rabid animal or have been in intimate contact with a known rabid or suspected rabid animal.
e. The period of quarantine will be for ten days.
2. In those circumstances where the bite or exposure to rabies occurred while the victim was on the property of the owner of the animal, or when the victim is a member of the family or household of the owner, and when the animal is currently vaccinated against rabies and, as applicable, licensed as required by the provisions of this chapter, the animal may, at the discretion of the animal control managerAnimal Control Manager, be quarantined on the property of the owner provided the following:
a. The owner of said animal can and does agree to ensure its confinement for the period of quarantine;
b. The owner agrees, upon demand of the health officerHealth Officer or the animal control managerAnimal Control Manager during the period of quarantine, to surrender the animal to the animal control manager;Animal Control Manager;
c. The owner agrees to immediately notify the animal control managerAnimal Control Manager if the animal escapes, becomes ill, or dies;
d. The period of quarantine will be for ten days.
It is unlawful for the owner or keeper of an animal to violate any of the conditions of isolation or quarantine prescribed by the health officerHealth Officer.
B. Nonvaccinated Biting Animals Fee. Notwithstanding any other provision of this chapter, the owner of any animal which is required by law to be vaccinated for rabies and which has not been so vaccinated and which bites or wounds any person or other animal shall be subject to a fee as set forth in the departmentDepartment of agriculture, divisionAgriculture, Division of animal controlAnimal Control, fee schedule. Said fee shall be payable to the animal control divisionAnimal Control Division.
C. Delivery of Carcass. Upon the death of any known rabid animal, suspected rabid animal, or animal which has bitten or otherwise exposed a human to rabies, the animal control managerAnimal Control Manager shall obtain and hold for the health officerHealth Officer the carcass of the animal or an adequate specimen thereof, except that the animal control managerAnimal Control Manager is not responsible for the gathering of a specimen from the carcass of an animal.
D. Epidemics. The health officerHealth Officer may determine and declare that a rabies epidemic or other unusually dangerous health situation exists among dogs or other animals in the county, or in any part thereof. Upon making of such a declaration, the health officerHealth Officer shall prepare and promulgate such rules and regulations as are necessary for the conduct of all persons within the area where the dangerous condition exists, and the dogs and other animals within the area. These rules and regulations of the health officerHealth Officer may include, but are not limited to, quarantine, vaccination, and destruction of diseased or suspected rabid or stray animals by humane methods.
Such rules and regulations shall be effective when filed with the clerkClerk of the boardBoard of supervisorsSupervisors. It shall be the duty of the animal control managerAnimal Control Manager to comply with all directives of the health officerHealth Officer in the enforcement of the rules and regulations. A violation of any such rules and regulations shall be deemed a violation of this chapter. (Ord. 405-98 § 1 (part), 1998)
6.04.210 - Vaccination.
A. Every dog over four months of age shall have a medically current vaccination with an appropriate anti-rabies vaccine approved by the California State Department of Health Services.
B. Every person who owns or comes to own an unvaccinated dog over four months of age shall have thirty calendar days in which to comply with the provisions of this chapter.
C. Every veterinarian, shall issue a certificate to the owner after vaccinating a dog or cat for rabies, shall issue a certificate to the owner.. The certificate shall include the following information:
1. The owner's full name, address, and telephone number;
2. The breed, age, sex, and color or markings of the animal;
3. The date of immunization;
4. The type of vaccine administered;
5. The name of the vaccine manufacturer;
6. The lot number of the vaccine used; and
7. The signature of the veterinarian administering the vaccination of his or herthe veterinarian’s agent.
D. If a copy of the certificate is on file with the animal control managerAnimal Control Manager, a duplicate copy may be provided when requested by the owner of the animal. An administrative fee shall be charged for each duplicate certificate issued.
E. The owner must maintain the certificate of vaccination, or a copy thereof, and must, display said certificate for examination upon demand of a public or peace officer acting within the course and scope of his or hertheir employment, display said certificate for examination.
F. Upon written proof provided by a veterinarian that an animal has a medical condition whichthat would cause it to be endangered by receiving anti-rabies vaccination and upon written acceptance of such proof by the health officerHealth Officer, the animal control managerAnimal Control Manager may exempt the animal from the vaccination requirements herein so long as the animal is confined at all times and so long as the medical condition is proven to exist. (Ord. 405-98 § 1 (part), 1998)
6.04.220 - Duty of veterinarians to furnish rabies vaccination certificates.
Upon request by the animal control managerAnimal Control Manager, every veterinarian practicing veterinary medicine within the cityCity of Chowchilla shall furnish animal control managerAnimal Control Manager with a copy of every rabies vaccination certificate prepared by him or herthem. Said certificates may be mailed to the animal control managerAnimal Control Manager or made available to him or her at the veterinarianveterinarian’s office.
(Ord. 405-98 § 1 (part), 1998)
6.04.230 - Unlicensed vaccinated animals.
Whenever any agent or staff of the cityCity of Chowchilla police departmentPolice Department discovers through a vaccination certificate obtained from any veterinarian that an animal named thereon is unlicensed, the owner of such animal will be notified by mail that such animal is unlicensed and that such animal must be licensed within fifteen (15) days of the date of the notice. The owner of any such dog which has been previously licensed in cityCity of Chowchilla shall be subject to a delinquent fee as set forth in Section 6.04.260 of this chapter. The owner of any such dog which has never been previously licensed in citythe City of Chowchilla who obtains a license within fifteen (15) days of the date of said notice shall be subject to an administrative fee plus the license fee or any other applicable fee. The owner of such dog license has never been previously licensed in the city of Chowchilla who does not obtain a license within fifteen (15) days of the date of said notice shall be subject to a delinquent fee as set forth in Section 6.04.260 of this chapter, plus the license fee or any other applicable fee. (Ord. 405-98 § 1 (part), 1998)
6.04.240 - Unlicensed dogs.Animals.
Every owner of an unlicensed or untagged dog or potbellied pig shall be deemed to be in violation of this chapter and is guilty of a misdemeanor.
(Ord. 405-98 § 1 (part), 1998)
6.04.250 - Unvaccinated dogs.
Every dog owner of a dog whichthat does not have a current vaccination for rabies as evidenced by an official certificate therefor, shall be deemed to be in violation of this chapter and guilty of a misdemeanor.
(Ord. 405-98 § 1 (part), 1998)
6.04.260 Dog – Animal licenses.
A. Every person owning, possessing, keeping, harboring, or having custody of any dog over four (4) months of ageold and all pot-bellied pigs shall be subject toobtain a dog license for each dog and potbellied pig. Such license shall be obtained, and the fee, due and payable by its owner not later than when the dog is five months of age or, if the dog is mature when acquired therefor paid, within thirty calendar days of the(30) days after the day upon which a dog is four (4) months old, within thirty (30) days after acquisition of a dog if over four (4) months old, within thirty (30) days after acquisition of potbellied pig, or entrywithin thirty (30) days of moving into the cityCity.
Thereafter, such license fee shall become due and payable on the date of expiration on anyof the license previously issued to the owner for the dog.each respective animal. The amount of such fee shall be established in accordance with Section 6.04.160 of this chapter. ForA partial year license may be issued for dogs whichthat are new acquisitions and have a rabies vaccination that is valid for less than twelve (12) months, a partial year license may be issued. The license fee will be one-half the regular one -year (1) license fee. The license will expire with the rabies vaccination and is subject to renewal as outlined above.
B. Every such license shall be payable annually in advance on or before the first day of January of each year. Notice that the dog license fees will become due shall be published immediately preceding the first day of January of each year and shall be published in a newspaper of general circulation in the city, which notice shall state that the license fee will be delinquent within thirty days thereafter, and shall further state that all licenses not paid by the following March 31st shall, in addition to any other penalty, be increased by an amount specified by resolution The license fee may be prepaid for a one (1) year or three (3) year period, provided that for dogs, the applicant presents a valid rabies vaccination certificate valid for the entire term of the license. The license shall become due again when the applicable rabies vaccination expires.
C. Upon the written certification of a veterinarian that a dog has been surgically sterilized, the amount of the license fee shall be not more than one-half the fee established for intact dogs.
D. No doganimal license shall be issued for any dog vaccinated with a vaccine not authorized by the state of California. Should a rabies vaccination not be valid for twelve months from the date of application, the owner may elect to either:
1. Be issued a license at one-half the regular one -year rate as outlined in subsection A of this section; or
2. Re-vaccinate and be issued a license at full price which wouldshall be valid for at least twelve months.
E. A dog An animal license fee shall become delinquent thirty calendar days after it becomes due and payable, and upon. Upon delinquency, an additional delinquent fee as established in accordance with Section 6.04.160 of this chapter shall be added to the regular fee. AnAny unpaid delinquent fee shall be added to the succeeding year's license fee.
F. The animal control managerAnimal Control Manager shall procure and issue serially numbered tags stamped with the City’s name of the city. The tag shall only be issued upon the application of owners who have complied with the vaccination and fee provisions of this chapter.
G. Upon presentation by the doganimal owner of a properly completed license application form, including proof that the rabies vaccination will be valid throughout the licensing period, and the properpayment of the applicable license fee, and if applicable, aany delinquent fee, the animal control managerAnimal Control Manager shall issue a dogan animal license. The owner shall retain the doganimal license form for inspection by the animal control managerAnimal Control Manager upon request.
H. Every dog and every potbellied pig shall be provided by the owner withhave a suitable collar, harness, or other device to which the doganimal tag can be affixed. The doganimal owner shall ensure that the doganimal wears sucha license tag at all times except when the doganimal is being prepared for an exhibit at a dogan animal show.
I. A license tag issued for one doganimal shall not be transferred or attached to any other dog.animal.
J. A license issued to one owner shall not be transferred to another owner.
K. Whenever a license tag is lost, stolen, or damaged, the owner shall apply for and obtain a replacement tag from the animal control managerAnimal Control Manager upon payment of the prescribed replacement fee.
L. A fee shall not be levied for any doganimal license issued for a seeing -eye dog owned by a blind or partially blind person or for any service dog in training or one that has been duly trained and registered with a training agency to assist a disabled person when such dog is actively used for the purpose trained, or for any dog primarily used to assist a peace officer engaged in law enforcement duties.
M. Despite Notwithstanding anything in this chapter to the contrary, when an owner brings into the cityCity a dog or potbellied pig which has been licensed in another jurisdiction, the dog or potbellied pig shall be licensed within thirty calendar days as outlined in this chapter. If the license from the other jurisdiction is valid for at least twelve months, a one -year license may be obtained for replacement tag fees upon the surrender of the other jurisdiction's license and the proper completion of a license application.
N. Kennel Permit Exemption. Any person or place of business that has properly applied for and received a valid kennel permit as outlined in Section 6.04.270(C) of this chapter is exempt from licensing each individual dog as described in this section. This exemption does not relieve the permit holder of the responsibility of vaccination as outlined in Section 6.04.210 of this chapter. (Ord. 405-98 § 1 (part), 1998)
6.04.270 - Kennels or catteries.
A. Purpose. The purpose of this chapter is to establish special regulations applicable to the following:
1. The operation of kennels as defined in subsection U of Section 6.04.010 of this chapter;
2. The keeping of wild animals as defined in subsection AC of Section 6.04.010 of this chapter; and
3. The operation of catteries as defined in subsection H of Section 6.04.010 of this chapter.
The operation of kennels or catteries and the keeping of wild animals constitute types of activity which require special investigation, review and regulation to ensure that both public and animal health, safety, and welfare are protected. The necessity to conduct such investigation, review and regulation arises for reasons whichthat include, but are not necessarily limited to, the following: (i) the fact that such activities create health or safety risks which require special regulation and (ii) the tendency of such activities to create, whether intentionally or unintentionally, a public nuisance.
B. Permits. Within the context of this chapter and unless otherwise stated, "permits" shall include licenses issued by the animal control managerAnimal Control Manager pursuant to the provisions of this chapter which authorize either the maintaining and operating of a kennel or cattery (a Kennel/ cattery permit) or the keeping of a wild animal (a wild animal permit) but shall not include licenses issued by the animal control managerAnimal Control Manager pursuant to the provisions of Section
6.04.260 which authorize the keeping of a dog.
C. Permit Required.
1. No person shall maintain or operate a kennel or cattery or keep, harbor, or maintain a wild animal within the geographic area of the city governed by this chapter without first, being appropriately zoned for such activity and second, applying to and receiving from the animal control managerAnimal Control Manager an annual permit to do so.
2. A person shall be deemed to maintain or operate a kennel if the person keeps, harbors, or maintains more than five dogs over four months of age.
3. A person shall be deemed to maintain or operate a cattery if the person keeps, harbors, or maintains more than five cats over six months of age.
4. The following shall be exempt from the requirements of this chapter:
a. Persons keeping wild animals solely and exclusively as part of a bona fide rehabilitation or educational activity sanctioned by the state of California, Department of Fish and Game; and
b. Nonprofit enterprises recognized by the state of California as animal shelters or humane societies which shelter animals.
5. If a person operates more than one kennel or cattery or maintains wild animals at more than one address, a separate permit shall be required for each location where the person maintains a kennel or cattery or keeps a wild animal.
D. Special Regulations. The operationAs outlined in this section, the operations of kennels or catteries in appropriately zoned areas and the keeping of wild animals are subject to special regulations governing their operations as set forth in this section.. Any such regulations not specifically set forth herein shall be promulgated by the appropriate officer and shall be effective when approved by the animal control director.Director.
The issuance of a permit shall not be deemed to relieve or excuse the owner from the provisions and requirements of Chapter 6.04 in its entirety; nor from any other applicable requirement as set forth in existing federal, state, or local zoning codes, health and safety codes, business codes or other laws, ordinances, or requirements governing the operation of such a kennel or cattery enterprise or the keeping of such wild animals.
E. Application Filing. All applications for a permit shall be filed, with the required fees, with the animal control managerAnimal Control Manager. Applications for a kennel/cattery permit shall be accompanied by copies of the rabies vaccination certificates for all dogs or cats to be kept pursuant to the kennel/cattery permit. The animal control managerAnimal Control Manager shall receive any fee required for the application, assure that the application is complete, and conduct such investigation and review as is necessary for action. The application for a permit shall contain such information and be filed on a form as is prescribed by the animal control managerAnimal Control Manager.
F. Fees.
1. The fee for the issuance ofissuing a permit shall be due and payable by the owner within thirty (30) calendar days of the establishment of the kennel or cattery or the keeping of the wild animal within the county and thereafter on the same date each calendar year, the. The amount of whichthe permit fee shall be established pursuant to Section 6.04.160 of this chapter.
2. The fee for a permit becomes delinquent fourteen (14) calendar days after it becomes due and payable, and upon delinquency, an additional delinquent fee as established pursuant to Section
6.04.160 of this chapter shall be added to the regular fee.
G. Investigation. The animal control managerAnimal Control Manager shall conduct such investigation of the background of the owner and the applicant and the history and physical condition of the kennel or cattery or keeping of the wild animal, including physical inspection of the premises, as is deemed appropriate. The animal control managerAnimal Control Manager shall consider as evidence of disregard for the purposes of this chapter any revocation of prior permits or conviction on charges directly related to animal cruelty involving the applicant or owner. as evidence of disregard for the purposes of this chapter. Such character evidence may be used as cause for denying the application for a permit.
H. Issuance. The animal control managerAnimal Control Manager shall issue the permit within ninety days after the date of application unless either:
1. The animal control managerAnimal Control Manager finds in writing that the applicant fails to provide the information requested with the application whichthat is essential to making a determination;
2. The animal control managerAnimal Control Manager finds in writing that any of the statements made in the application or supplementary information submitted are incorrect or untrue;
3. The animal control managerAnimal Control Manager finds in writing an authorized basis for denial of the permit;
4. The animal control managerAnimal Control Manager finds in writing that the applicant does not satisfy any requirement applicable to the permit; or
5. The animal control managerAnimal Control Manager finds in writing that the applicant or enterprise does not conform to existing federal, state, or local zoning codes, health and safety codes, business codes, or other laws, ordinances, or requirements governing the operation of such a kennel or cattery enterprise or the keeping of such wild animal.
I. Conditions. The animal control managerAnimal Control Manager may issue a permit upon such conditions relating to the method or manner of operation of the kennel or cattery or the keeping of wild animal as he or sheanimals as the Animal Control Manager deems necessary to protect the health and safety of the public or the animals kept.
Any condition imposed pursuant to the provisions of this section, whether established at the time of issuance, at the time of renewal, or during the term of a permit, shall be embodied, together with the reasons therefor, in a written notice which is served upon the applicant or holder. The condition shall become effective fourteen (14) calendar days following the date of service of the notice thereof; provided that in the event an appeal therefrom is filed within the time and in the manner prescribed, the condition shall not become effective until the appeal is finally determined.
J. Contents of Permits. The permit shall contain a complete description of the kennel or cattery or place of keeping authorized by the permit; the business name (if applicable), address, and telephone number of the location so permitted; the name, address, and business and home telephone numbers of the owner of the kennel or cattery or the keeper of the wild animal, the number of animals to be kept pursuant to the permit, and any conditions upon which the permit is issued. The kennel/cattery permit or the wild animal permit or a copy thereof shall be made available for inspection upon demand by any public or peace officer acting within the scope and course of his or hertheir employment.
K. Changes in Status. During the term of any permit issued pursuant to this section, the holder of the permit shall immediately file, in writing with the animal control manager,Animal Control Manager, a notice of any changes in the kennel or cattery or the location of keeping of the animal which relate to changes in the information given in the application for the permit. The animal control managerAnimal Control Manager shall issue an amended permit whichthat shows any changes in the permit.
L. Renewal of Permits. Approximately forty-five (45) calendar days prior to the expiration of the term of a permit term, the animal control managerAnimal Control Manager shall transmit to the permit holder by mail ana renewal application for renewal. The renewal application for renewal shall be on such a form and include such information as is required by the animal control managerthe Animal Control Manger requires and as is consistent with the information required in subsectionssubsection E and G of this section, with the exception that the animal control manager. The Animal Control Manager shall act upon the renewal application for renewal not later than thirty (30) calendar days after the date a valid the completed renewal application for renewal is filed.
The animal control managerAnimal Control Manager shall extend the term of the immediately preceding permit during the period of any investigation or examination required to determine whether the permit should be renewed.
M. Standards. The animal control managerAnimal Control Manager shall, with the approval of the directorDirector, set minimum standards for the proper care and maintenance both of a kennel or cattery or a place of keeping of wild animals and of the animals kept therein which are, at a minimum, consistent with applicable state and federal standards. A copy of such standards shall be provided in writing to the applicant with each initial application for or application for renewal of a permit.
The animal control managerAnimal Control Manager shall notify each permit holder no less than ninety (90) calendar days in advance of any proposed change in the standards and shall advise the permit holder that comments regarding any change may be submitted to the directorDirector for review and consideration within thirty calendar days of notification. No change in the standards may be put in force without authorization of the directorDirector given at least thirty (30) calendar days in advance of the proposed effective date of the change.
N. Compliance with Standards. Each applicant or permit holder must demonstrate that the premises, facilities, cages, vivariums, aquariums, and equipment addressed in the permit comply with the standards on an ongoing basis. Upon request of the animal control managerAnimal Control Manager, and during normal business hours or by a mutually agreed time for the appointment, the applicant or permit holder must make the premises, facilities, cages, vivariums, aquariums, and equipment available for inspection by the animal control manager.Animal Control Manager. Failure to allow visual inspection as required shall be deemed a failure to comply Withwith the requirements of this chapter and shall be considered cause for denial of application or revocation of the permit.
O. Failure to Comply with Standards. If the applicant or permit holder fails to meet the requirements set in the standards, the animal control managerAnimal Control Manager shall so notify the applicant or permit holder in writing within three (3) calendar days of discovery ofdiscovering the failure to comply with the standards. The written notice shall advise the applicant or permit holder of any existing deficiency and the corrective measures that must be taken and completed to bring the premises, facilities, cages, vivariums, aquariums, and equipment into compliance with the standards.
The applicant or permit holder shall be given no more than thirty (30) calendar days and no less than fourteen (14) calendar days to complete the corrective measures, except that if any deficiency threatens the health or welfare of the animals kept or of the public, such corrective measures shall be made immediately or no later than one (1) day after the discovery of the deficiency.
Failure to correct the noted deficiencies as required shall be deemed a failure to comply with the standards and shall be considered cause for denial of the application or for revocation of the permit and may be considered cause for animal nuisance.
P. Grounds for Denial or Revocation. The animal control managerAnimal Control Manager may deny an initial permit application for or renewal application for renewal of a permit or may revoke a permit during its term if written findings described by subsections N and O of this section are made.
Q. Method of Denial or Revocation. A denial of an initial permit application for or renewal application for renewal of a permit or revocation of an existing permit made by the animal control managerAnimal Control Manager shall be in writing, with the reasons for denial or revocation stated. Written notice of the denial or revocation, together with a copy of the provisions of this section and the standards and any other provisions of this chapter which are applicablethat apply to the permit, shall be served either in person or by mail to the applicant or permit holder.
Denial of an initial permit application for or renewal application for renewal of a permit or revocation of an existing permit shall prohibit operation of the kennel or cattery or keeping of the wild animal(s) at any location within the unincorporated area of the cityCity which is governed by this chapter.
With respect to denial of an application for renewal of a permit or revocation of an existing permit, the immediately preceding permit shall be deemed to be in full force and effect for a period of fourteen (14) calendar days following the date of service upon the applicant or permit holder of the notice of denial or revocation. In the event the applicant files an appeal from the denial or revocation in the manner and within the time prescribed by subsection R of this section, the immediately preceding permit shall continue in full force and effect during the pendency of the appeal, until the date of the final decision by the appellate authority.
R. Appeals. The holder of a permit or applicant therefor may file an appeal from the following:
1. The denial of an initial application for or application for renewal of a permit pursuant to the provisions of subsection Q of this section;
2. The imposition of conditions at the time of issuance of an initial or renewed permit, pursuant to the provisions of subsection I of this section; or
3. The revocation of an existing permit pursuant to the provisions of subsection Q of this section.
Any such appeal shall be in writing in the form of an affidavit, shall state the specific reasons therefor and grounds asserted for relief, shall be signed under penalty of perjury, and shall be filed with the animal control managerAnimal Control Manager no later than fourteen (14) calendar days after the date of service of the notices prescribed by subsections I and Q of this section, as may be applicable. If an appeal is not filed within the time or in the manner prescribed above, the right to review the denial, conditions, or revocation shall be deemed to have been waived.
Upon receipt of the appeal, a hearing shall be set in accordance with the provisions of Section 6.04.300 of this chapter.
S. Effect of Revocation. The revocation of a permit shall terminate the right of the holder of the permit to engage in the enterprise or activity authorized by the permit for a period specified in the order of the hearing officer.Hearing Officer.
In the event of revocation of a permit, no other person shall be entitled to any rights or interests under the revoked permit, nor shall any such person be entitled to the issuance of a permit for the enterprise except upon written application filed with the animal control officer in accordance with the provisions of this chapter.
T. Removal of Animals. Upon revocation of the permit, the permit holder shall have fourteen (14) calendar days in which to remove from the cityCity or otherwise dispose of the animal kept pursuant to the permit or to appeal the Hearing Officer’s decision of the hearing officer.. Should the owner fail to take such action, the animal control managerAnimal Control Manager shall have the authority to seize the animal in a manner provided by law and dispose of it in accordance with the provisions of this chapter.
(Ord. 405-98 § 1 (part), 1998)
6.04.280 - Animal nuisances.
A. Declaration. The keeping, harboring, maintaining, or owning of any animal committing an animal nuisance as defined in Section 6.04.010(D) of this chapter, in addition to being a violation of this chapter, is declared to be a nuisance subject to abatement proceedings conducted in a similar, but not necessarily identical, manner as proceedings for abatement of other public nuisances.
B. Authority to Abate. Upon a determination after a hearing held in accordance with the provisions of Section 6.04.300 of this chapter, the animal control managerAnimal Control Manager shall have the authority to take whatever measures are specified in the determination to abate the animal nuisance including, but not limited to, impoundment and destruction of the nuisance animal.
C. Complaint. Any person aggrieved by an animal nuisance may file a complaint, signed under penalty of perjury, with the animal control manager.Animal Control Manager. Such complaint shall be in writing in the form of an affidavit and shall contain the following facts:
1. A description of the offending animal including, to the extent known, the color, size, sex, breed, and name of the animal, and the name and address of the owner of the animal;
2. An assertion that the animal described creates an animal nuisance within the meaning of Section 6.04.010(D) of this chapter, together with a statement of facts upon which the assertion is based, including the name and address of any person who has been aggrieved by the animal, a description of the animal nuisance, the names and addresses of any witnesses thereto, the time, date, and location of any incident related to the assertion; and
3. The name, residential and occupational addresses, and telephone numbers of the affiant.
D. Timely Filing. Unless otherwise provided, the filing of an animal nuisance complaint must be madefiled within thirty (30) days of the most recent event or circumstances occasioning the complaint.
Upon evidence that good cause exists that the complaint could not be filed within thirty (30) calendar days, the animal control managerAnimal Control Manager may extend the deadline for filing of the complaint.
E. Impoundment of Animal. Upon receipt by the animal control manager ofAnimal Control Manager of the complaint filed in compliance with subsection C and D of this section, the animal control managerAnimal Control Manager shall initiate an investigation of the incident or incidents described in the complaint for the purpose of verifyingto verify the facts stated or obtainingobtain other information. If, after an investigation, the identified facts show the existence of an animal nuisance within the meaning of subsection D of this section, the animal control managerAnimal Control Manager shall cause a hearing to be conducted. If such nuisance poses an imminent threat to public health or safety, the animal control managerAnimal Control Manager shall immediately locate and impound the animal which is the subject ofto the charges.
F. Notice of Hearing. Not later than fourteen (14) calendar days after the impoundment of a purported nuisance animal or, if the animal is not impounded but a determination has been made to hold a hearing to abate an animal nuisance, at such time as determined by the animal control manager, the animal control managerAnimal Control Manager, the Animal Control Manager shall either personally serve upon or mail to the residential address of the owner of the animal and affiant the following:
1. A written notice of the time, date, and place of the hearing prescribed by Section 6.04.300 of this chapter;
2. A copy of the complaint filed pursuant to subsection C and D of this section; and
3. A copy of the provisions of this chapter.
Conversely, if, or after an investigation, the identified facts show the cause to conduct a hearing has not been shown, the animal control managerAnimal Control Manager shall so notify the affiant and the animal owner in writing.
(Ord. 405-98 § 1 (part), 1998)
6.04.290 - Dangerous and vicious animals.
A. Purpose. The purpose of this section is to regulate the keeping of animals whichthat are potentially dangerous or vicious or involve a threat to the safety of people and other animals on streets, sidewalks, and private property where the animals are not properly maintained as such animals constitute a serious hazard within the incorporated area of the city of Chowchilla. The increasing tendency to maintain dogs which, by virtue of breeding or training, have a propensity to attack others, compounds the hazard.
Every owner of an animal is held strictly accountable for the exercise of suchexercising control over the animal as necessary to insureensure that the animal does not injure innocent human beings or other animals who are not on the premises where the animal is maintained. Such strict accountability is hereby imposed whether or not the injury results from the owner’s negligence or fault of the owner, and regardless of the degree of precaution or control exercised by the owner.
B. Owner Responsible. Any owner of anyThe animal owner is deemed responsible for the acts committed by that animal when the owner has failed to comply with the legal requirements for the keeping of that animal as defined in this chapter. No person shall permit or suffer an animal to act in such a manner asthat constitutes dangerous or vicious behavior as defined in Sections 6.04.010(K) and 6.04.010(AB) of this chapter.
A violation of any of the provisions of this section is punishable as follows:
1. Any animal owner who maintains an animal in such a manner as to permit or suffer it to exhibit dangerous behavior shall be guilty of a misdemeanor.
2. Any animal owner who maintains any animal in such a manner as to permit or suffer it to exhibit vicious behavior shall be guilty of a misdemeanor.
Nothing in this section shall prevent prosecution for violations of other statutes or codes which may deal with other or more specific offenses, including but not limited to, penal and civil statutes.
C. Sale Prohibited. No animal held in custody by the animal control managerAnimal Control Manager which is known to have exhibited dangerous or vicious behavior as defined in this chapter shall be released for sale to any member of the public, but rather shall be destroyed upon exhaustion of the required period of impoundment unless legally reclaimed by the owner.
D. Quarantine. No animal which has been declared dangerous or vicious or against which dangerous or vicious animal affidavit has been filed may be impounded or quarantined at any place other than the animal control center unless authorized by the animal control managerAnimal Control Manager.
E. Filing of Charges. Any person, including employees of animal control, possessing personal knowledge of facts that there exists a dangerous or vicious animal within the incorporated area of the city of Chowchilla. The complainant may file with the animal control managerAnimal Control Manager a written affidavit, signed under the penalty of perjury, which contains the following facts:
1. A description of the offending animal including, to the extent known, the color, size, sex, breed, and name of the animal, and the name and address of the animal owner;
2. An assertion that the animal described is a dangerous or vicious animal within the meaning of Sections 6.04.010(K) or 6.04.010(AB), together with a statement of the facts upon which the assertion was based, including the name and address of any person who has been victimized or injured, including a description of the extent of the injuries, the names and addresses of the witnesses thereto, the time, date, and location of the incident related to the assertion, and an explanation of how the personal knowledge of the affiant was acquired; and
3. The name, residential and occupational addresses, and telephone numbers of the affiant.
F. Timely Filing. Unless otherwise provided, the filing of a dangerous or vicious affidavit must be made within thirty (30) calendar days of the most recent event or circumstances occasioning the affidavit.
Upon evidence that good cause exists that an affidavit could not be filed within the thirty (30) calendar days, the animal control managerAnimal Control Manager may extend the deadline for filing the affidavit.
G. Impoundment of Animal. Upon receipt by the animal control managerAnimal Control Manager of an affidavit filed in compliance with subsections E and F of this section, the animal control managerAnimal Control Manager shall initiate an investigation of the incident or incidents described in the affidavit for the purpose of verifying the facts stated and obtaining other information. If, after an investigation, the identified facts show the existence of a vicious animal within the meaning of Section 6.04.010(AA) of this chapter, the animal control managerAnimal Control Manager shall immediately locate and impound the animal which is the subject of the charges. If, or after an investigation, the animal control managerAnimal Control Manager identifies facts whichthat show the existence of a dangerous animal within the meaning of Section 6.04.010(J) of this chapter, he or she shall cause a dangerous animal hearing toshall be conducted.
H. Notice of Hearing. Not later than fourteen (14) calendar days after the impoundment of a purportedly vicious animal or, if the animal is not impounded but a determination has been made to hold a hearing concerning a purported dangerous animal, at such time as is determined by the animal control manager, the animal control managerAnimal Control Manager, the Animal Control Manager shall mail to the residential address of the owner of the animal and affiant the following:
1. A written notice of the time, date, and place of the hearing prescribed in Section 6.04.300 of this chapter, the date of the said hearing to be scheduled not earlier than fourteen (14) calendar days following personal service or deposit in the United States mail of the notice;
2. A copy of the affidavit filed pursuant to subsections E and F of this section; and
3. A copy of the provisions of this chapter.
Conversely, if, or after an investigation, the identified facts show that cause to conduct a dangerous or vicious animal hearing has not been shown, the animal control manager,Animal Control Manager shall so notify the animal owner in writing.
I. Bond Required. At the discretion of the animal control managerAnimal Control Manager, any animal impounded or quarantined pursuant to the provisions of this chapter may be returned to the custody of its owner pending the conductoutcome of the dangerous or vicious animal hearing and the rendering of a decision by the hearing officerHearing Officer, provided such return is determined to pose no threat to public health and safety.
The owner, if authorized by the animal control managerAnimal Control Manager, may gain custody of the animal by posting a cash bond in the amount of one thousand dollars ($1,000.00) or such greater amount as is justified in writing and approved by the directorDirector as necessary to assure the return of the animal or by furnishing other security upon review and approval by the city attorneyCity Attorney, which bond or other security shall be forfeited in the event the animal is not delivered into the custody of the animal control managerAnimal Control Manager if so ordered in the decision rendered by the hearing officerHearing Officer.
J. Registration. Any animal which has been declared by the hearing officer to be dangerous or vicious within the meaning of Section 6.04.010(J) or Section 6.04.010(AA) of this chapter shall be subject to special registration requirements as follows:
An owner of a dangerous or vicious animal is required to pay, in addition to any licensing or permit fee, an annual special registration fee (as applicable) which shall be valid and renewable concurrent with the effective dates of the licensing of the animal. Late registration is subject to a penalty fee equal to two times the annual registration fee.
K. Keeping of a Dangerous or Vicious Animal. Except as otherwise provided in the decision rendered by the hearing officerHearing Officer, the keeping of an animal which has been declared dangerous or vicious shall, at the minimum, be subject to the following provisions:
1. The animal must at all times, when not under restraint by a leash on public property, be securely confined under lock within a lawful fence. Except as provided by Section 17121 of the California Food and Agriculture Code, a lawful fence means any fence which is good, strong, substantial and sufficient to prevent ingress and egress of the animal. No fence is a lawful fence within the meaning of this section unless it is a height of at least five feet, is securely affixed at its base and maintained in good repair;
2. The animal must, at all times, when kept in any part of a house or structure, be confined in such a manner that the animal cannot exit such building on its own volition; and.
3. The animal must, at all times,3. The animal must at all times, when off the owner’s premises, be under the control of a responsible adult physically capable of retaining control of the animal and restrained by a substantial leash of not more than six feet (6') in length.
4. The animal must at all times be licensed and registered as required by this chapter and must be kept in compliance with all the regulatory provisions of this chapter in its entirety;.
4. 5. The animal owner must notify the animal control officerAnimal Control Officer in writing within three (3) calendar days if the location of the animal is to be permanently changed. An administration fee will be charged to modify the issued permit;
5. 6. The owner must allow the animal control officerAnimal Control Officer to inspect the property at such time as reasonablereasonably to insureensure the provisions ordered by the hearing officerHearing Officer are being complied with.
All costs associated with these provisions or any other or additional provisions ordered by the hearing officerHearing Officer shall be borne by the owner of the animal which has been declared to be dangerous or vicious.
L. Mitigating Circumstances. In considering whether an animal is dangerous and/or vicious, the hearing officerHearing Officer may hear and consider evidence of any of the following mitigating circumstances:
1. That the injury or damage complained of was sustained by a person who, was committing a willful trespass or other tort upon premises occupied by the owner of the animal, or was teasing, tormenting, abusing, or assaulting the animal, or was committing or attempting to commit a crime;
2. That the animal was protecting or defending a person within the immediate vicinity of the animal from an unjustified attack or assault;
3. That the injury or damage complained of was sustained by a domestic animal which at the time the injury or damage was teasing, tormenting, abusing, or assaulting the animal which is the subject of the hearing;
4. The injury or damage complained of was to a domestic animal, and was sustained while the animal in question was working as a hunting dog, herding dog, or predator control dog on the property of, or under the control of, its owner and the damage or injury complained of was to a species or type of domestic animal appropriate to the work of the dog.
M. Right to Destroy. Nothing in this section shall be construed to prevent the animal control managerAnimal Control Manager from destroying an animal whichthat is in the act of dangerous or vicious behavior towards any person or other animal as set forth in Sections 6.04.010(K) and
6.04.010(AB) of this chapter, if such immediate destruction is reasonably necessary to protect public safety.
(Ord. 405-98 § 1 (part), 1998)
6.04.300 - Hearings.
A. Purpose. The purpose of this section shall be to create special procedures to assure full access to administrative remedies in the application or enforcement of this title and for the mediation of disputes involving any animal governed by this chapter. Such procedures shall be administered by the directorDirector and conducted by the hearing officerHearing Officer.
B. Cause for Hearing. Hearings may be held to determine the following:
1. That an animal is a nuisance animal within the meaning of this chapter;
2. That an animal is a dangerous animal within the meaning of this chapter;
3. That an animal is a vicious animal within the meaning of this chapter;
4. That a permit has been denied, issued conditionally, or revoked in accordance with the provisions of this chapter;
5. That the decision of the hearing officerHearing Officer has been breached; or
6. That cause for an order no longer exists and the owner may be relieved of the conditions imposed by saidthe order.
A person shall be deemed to have shown cause for a hearing to be held when he or she compliesthey comply with the applicable appeal, complaint, or charge filing provisions specified in Sections 6.04.270, 6.04.280, and 6.04.290 of this chapter.
As requested by the directorDirector, hearings may be held in order to attempt mediation of other such matters as may arise from the keeping of animals.
C. Authority of Hearing Officer. The hearing officerHearing Officer shall be authorized within the scope of authority given by Title 6 to the directorDirector, to conduct hearings to resolve conflicts arising from the application and enforcement of this title, to make binding determinations, and to mediate disputes related to the keeping of animals pursuant to this title.
D. Oaths and Subpoenas. The hearing officerHearing Officer shall have the power to administer oaths of affirmations. At the request of either the animal control managerAnimal Control Manager or the animal owner, the city clerkCity Clerk shall, on behalf of the board, issue subpoenas for the attendance of witnesses at the hearing and be responsible for all official records of the hearing process.
E. Hearing.
1. Not later than thirty (30) calendar days following the date of filing either an appeal as prescribed by Section 6.04.270(R) or a complaint as prescribed in Sections 6.04.280(C) and 6.04.280(D) or charges as prescribed in Sections 6.04.290(E) and 6.04.290(F) of this chapter, the hearing officerHearing Officer shall conduct a hearing to determine whether the requested action should be granted or denied. Written notice of the time, date, and place of the hearing shall be served upon the directorDirector, the affiant, and the animal owner not later than fourteen (14) calendar days preceding the date of the hearing.
a. During the hearing, the burden of proof shall rest with the plaintiff, and such proof shall be based upon a preponderance of the evidence. The provisions of the California Administrative Procedure Act (commencing at Section 11500 of the Government Code) shall not be applicable to such hearing, nor shall formal rules of evidence in civil or criminal judicial proceedings be applicable. The affiant and the animal owner may appear, present evidence, and examine and cross-examine witnesses.
b. Absent extraordinary circumstances as determined by the hearing officerHearing Officer, no animal may be presented as evidence or be present during the hearing. c. In the event the affiant or the animal owner fails to appear at the time, date, and place appointed for the hearing, the hearing shall be conducted in the absence of the affiant or animal owner, and the hearing officerHearing Officer shall render a decision based upon the evidence presented during the hearing.
d. For the convenience of the hearing officerHearing Officer only, the hearing shall be tape recorded, and the tape recordings and all documents presented as evidence shall be maintained for a period of three (3) years as a part of the record of the hearing.
2. Unless otherwise agreed by the parties, within fourteen (14) calendar days of the conclusion of the hearing, the hearing officerHearing Officer shall issue a written decision, including but not limited to, findings of fact and conclusions relative to the following:
a. Whether, based upon the evidence during the hearing, the action requested is granted or denied; and
b. What disposition should be made as a consequence.
3. The hearing officerHearing Officer shall make a disposition based upon consideration of all of the facts and circumstances revealed by the evidence presented in the hearing and may order either:
a. That the animal control managerAnimal Control Manager destroy the animal in question; b. That the animal control managerAnimal Control Manager release the animal in question to the owner subject to such conditions or special registration requirements as may be specified in this chapter or required to ensure public safety and animal welfare; c. That the animal control managerAnimal Control Manager remove the animal in question for disposition in accordance with the applicable provisions of this chapter; d. That the animal control managerAnimal Control Manager release the animal in question to the owner subject to payment of such fees and expenses as may be applicable according to the provision of this chapter; or
e. The animal control managerAnimal Control Manager issue, deny, or revoke the subject permit.
4. Unless otherwise agreed by the parties, notice of the written decision, including a copy thereof, shall be filed with the animal control managerAnimal Control Manager and shall be personally served upon or deposited in the United States mail to the affiant and the animal owner not later than twenty-one (21) calendar days following the date on which the hearing was concluded. The Hearing Officer’s decision of the hearing officer shall notify that the decision is final unless a party shall file a petition for a writ of mandate within fourteen (14) days of being served with the decision.
5. Failure to comply with any procedural requirements or time limits of this chapter shall not deprive the hearing officerHearing Officer of jurisdiction over the issue or shall not vitiate any hearing conducted or order made pursuant to this chapter unless such failure constitutes a denial of due process of law.
F. Finality of Determination. The decision of the hearing officerHearing Officer shall be final unless a party shall file a petition for a writ of mandate within fourteen (14) days following the receipt of the decision. There shall be no appeal to the city councilCity Council.
G. Disposition of Animal. Except as otherwise provided, in the event that the hearing officerHearing Officer orders destruction of an animal, the animal control managerAnimal Control Manager shall immediately impound or continue to impound said animal until fourteen (14) days following the date of personal service upon or deposit in the United States mail of notice of the hearing officer'sHearing Officer's decision to the owner. In the event that the animal control managerAnimal Control Manager is personally served with a summons or other legal process in connection with a lawsuit whichthat seeks review of the hearing officer'sHearing Officer's decision, the animal shall not be destroyed and shall continue to be impounded at the owner's expense while the lawsuit is pending.
H. Release of Animal. No animal impounded pursuant to Sections 6.04.280 or 6.04.290 of this chapter shall be released to any person other than the owner of such animal. Should the owner fail to redeem the animal by the date specified in the Hearing Officer’s decision of the hearing officer, unless for good cause as determined by the animal control managerAnimal Control Manager, the animal shall be destroyed.
Notwithstanding any other provision in this chapter or a decision or order by the hearing officerHearing Officer to the contrary, the animal control managerAnimal Control Manager shall not release an animal impounded pursuant to Section 6.04.280 or 6.04.290 of this chapter to the owner absent compliance with the provisions relating to redemption prescribed by Section 6.04.190(D) of this chapter, including, but not limited to, the payment by the owner of all fees and charges for impoundment.
I. Notification of Change. At such time as an animal declared to be dangerous, vicious, or a nuisance dies, or the location where the animal is kept changes, either through a change of residence or of ownership, the person owning the animal so declared must notify, in writing within five (5) calendar days, the animal control managerAnimal Control Manager of the change. Such notification must include the date of the animal's death and the place of burial or disposal of the animal or the name and the residential and occupational addresses and telephone numbers of the new owner and the new address and telephone number where the animal is to be kept.
J. Failure to Comply. Failure of the owner to comply with the provisions of this chapter or the order of the hearing officerHearing Officer is a misdemeanor.
K. Breach of Conditions. Jurisdiction shall continue in the hearing officerHearing Officer to order the removal and destruction of any animal which has been declared dangerous, vicious, or a nuisance should any of the conditions imposed by the order of the hearing officerHearing Officer be breached.
Such action shall be taken pursuant to a hearing initiated by the animal control managerAnimal Control Manager and scheduled and conducted in accordance with the provisions of subsection E of this section except that once prima facie evidence of the breach of conditions has been established, the burden of proof shall be upon the owner to show cause as to why the animal should not be removed and destroyed.
L. Relief. If, after a period of two years from the date of the determination of the hearing officerHearing Officer that the animal is dangerous, vicious, or a nuisance, it can be demonstrated that the owner has complied with the order of the hearing officerHearing Officer and that no further cause exists for the order to stay in force, the owner may apply to the hearing officerHearing Officer, in writing, for relief from the conditions for keeping or the provisions for special registration of the animal. Upon investigation by the animal control managerAnimal Control Manager and concurrence by the hearing officerHearing Officer, relief may be granted and the owner soshall be notified in writing, or a hearing may be conducted to determine if cause for relief exists.
M. The cost of a hearing held pursuant to this section shall be the responsibility of the animal's owner unless the hearing officerHearing Officer rules in favor of the owner. (Ord. 405-98 § 1 (part), 1998)
6.04.310 - Violation a public nuisance.
The maintenance of any animal in violation of any provision of this chapter or any order of a hearing officerHearing Officer issued to this chapter constitutes a public nuisance. (Ord. 405-98 § 1 (part), 1998)
6.04.320 - Penalties.
A. Notwithstanding the provisions of Chapter 1.16 of this code and unless otherwise stated in this chapter, a violation of any of the regulatory requirements of this title.
B. Every violation of this chapter constituting a misdemeanor is punishable by a fine not in excess of five hundred dollars ($500) or by imprisonment in the county jail for not more than six (6) months or by both.
C. Assessment of other penalties as prescribed herein not withstandingnotwithstanding, violations of this title may result in revocation of license or permit. (Ord. 405-98 § 1 (part), 1998)
Chapter 6.12 - ANIMALS—BERENDA RESERVOIR FACILITY
Sections:
6.12.010 - Prohibited when.
All animals, both domestic and otherwise, shall be prohibited from Berenda Reservoir Recreation Facility during special events and programs conducted under the authority of the City. (Ord. 330-82 § 1, 1982)
6.12.020 - Seeing-Eye dogs exempted.
Seeing-Eye dogs which are certified for that purpose and are being used to aid the disabled, and police dogs under the supervision of an individual employed by the City, shall be exempt from this chapter.
(Ord. 330-82 § 2, 1982)
6.12.030 - Allowing during special events prohibited.
It is unlawful for any person or persons to allow an animal domestic or otherwise which they own, have the care or charge of, control, custody, or possession of to be present at a special event at the Berenda Reservoir when such an event is under the authority of the City. (Ord. 330-82 § 3, 1982)
REPORT TO THE CITY COUNCIL
Item 3.3
CLICK HERE
TO RETURN TO
THE AGENDA
Meeting of: February 22, 2022
AGENDA SECTION: Consent
SUBJECT: A Resolution Declaring the Existence of a Public Nuisance by Virtue of Certain Weed Growth (2022 Weed Abatement)
PREPARED BY: Fred Gaumnitz, Fire Chief
ATTACHMENTS: Resolution and Time Line
REVIEWED BY
ADMINISTRATOR ☒ REVIEWED BYATTORNEY ☒ REVIEWED BY FINANCE ☒ RECOMMENDATION:
Approval of a Resolution declaring the existence of a public nuisance by virtue of certain weed growth per Consent Calendar minute order by roll call vote.
BACKGROUND:
The need for weed abatement is a seasonal and recurring nuisance, which poses a fire, safety, and public health risk. The accumulation of weed growth also has a negative visual effect to the public within the City limits, which is a priority goal of the City Council. The timeline and activity summary is included in your supplements. This notice of abatement will be public noticed over the next few weeks in the Madera tribune and the City’s social media site(s).
This is an annual program of the City. The Chowchilla Municipal Code, Section 8.12 allows for the authority of this activity.
REASON FOR RECOMMENDATION:
This program in the past has been shown to help expedite the removal of weeds, which in turn reduces the fire and safety hazards due to their uncontrolled growth and gives Chowchilla and its neighbors a more appealing landscape. Community Pride is a City Council goal.
FISCAL IMPACT:
Initial costs for abatement of non-compliant properties incurred through planned budget expenditures.
Unpaid abatement costs will be recorded and a lien placed on such properties.
ALTERNATIVES:
Not perform annual weed abatement, notices and abatement of non-compliant properties.
ACTIONS FOLLOWING APPROVAL:
Administrative Services office to forward a copy of the executed resolution to the Community & Economic Development Department to process. Community & Economic Development Department to arrange for publication in local newspaper.
COUNCIL RESOLUTION # -22
A RESOLUTION OF THE CITY COUNCIL OF CITY OF CHOWCHILLA, CALIFORNIA
DECLARING THE EXISTENCE OF A PUBLIC NUISANCE BY VIRTUE OF CERTAIN WEED GROWTH (2022 WEED ABATEMENT)
WHEREAS, pursuant to Chowchilla Municipal Code, Chapter 8.12, all weeds growing upon the streets or sidewalks or upon or in front of private property within the city which bear seeds of a wingy or downy nature or attain such a large growth as to become a fire menace when dry, or at full natural growth will attain such a large growth as to become a fire menace when dry, or which are otherwise noxious or dangerous, may be declared to be a public nuisance by the city council, and may thereafter be abated as provided in this chapter.
WHEREAS, "Weeds," as used in Chapter 8.12, includes weeds, grass, ferns, vines and other similar natural growth other than growth ordinarily and customarily planted for decorative purposes and which has been planted for decorative purposes and is under continuing cultivation; and
WHEREAS, in conformance with the Municipal Code, weeds in excess of approximately four to six inches tall as determined by the Code Enforcement Officer will be determined to be a public nuisance; and
WHEREAS, it is the desire of the City Council to effect timely removal of all weeds so described through the City’s Weed Abatement Program, and in manner provided by law; and WHEREAS, if abatement does not occur during the time frame prescribed, the City may choose to follow the lien process set forth in the Municipal Code and/or seek Administrative fines per Ordinance 444-08.
NOW THEREFORE BE IT RESOLVED that the City Council of the City of Chowchilla hereby declares that the existence of certain weeds, as determined by the Code Enforcement Official, constitutes a public nuisance. A 2022 timeline/schedule is attached and incorporated by reference.
PASSED AND ADOPTED by the City Council of the City of Chowchilla this 22nd day of February, 2022 by the following vote to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
APPROVED:
Mayor John Chavez
ATTEST:
Joann McClendon, CMC
City Clerk
Community & Economic Development Department
Weed Abatement Timeline
2022
2/22/2022 Council – Resolution per CMC Chapter 8.12 – Declaring Weeds a Public Nuisance
2/23/2022 Send Council Resolution to Newspaper for Advertising (Post on City social media site)
2/23/2022 Abatement Declaration Advertised for 2 weeks 3/2 and 3/9 (Resolution needs to be submitted Wednesday before 10:00 am to be published in the following weeks newspaper) 3/1/2022 - Begin creating list of potential properties in violation 3/29/2022
Owners of Record Notified by LETTERS VIA MAIL & Properties Posted with Red “To Destroy Weeds”
(Steven/Ryan to take pictures of all properties with address written on the notice)
4/26/2022 - Properties to be abated by April 26 – Cutoff date 4/27/2022 PUBLIC HEARING NOTICE APRIL 27TH EDITION of MADERA
TRIBUNE
5/10/2022 Public Protest Hearing to Council – Authorization to Abate Weeds 5/23/2022 Non-Compliant PROPERTIES cited – Need to send out citations next day 5/24/2022 City Council to approve cost of bid from contractor if city purchase policy mandates.
5/26/2022 Coordinate ABATEMENT WITH CONTRACTOR
6/14/2022 PROPTERY ABATEMENT in progress to be complete by JUNE 14th 6/21/2022 LIST OF ABATED PROPERTIES TO FINANCE FOR BILLING 7/5/2022 LIENS CREATED
*Note: These dates are tentative due to weather and time restraints in processing. The dates may vary as much as 30 days.
REPORT TO THE CITY COUNCIL
Item 3.4
CLICK HERE
TO RETURN TO
THE AGENDA
Meeting of: February 22, 2022
AGENDA SECTION: Consent
SUBJECT: Consideration of a Resolution for Declaration of Surplus Property PREPARED BY: Wendy Smith, Senior Administrative Supervisor APPROVED BY: Jason Rogers, Director of Public Works
ATTACHMENTS: Resolution, Surplus List
REVIEWED BY
ADMINISTRATOR ☒ REVIEWED BYATTORNEY ☒ REVIEWED BY FINANCE ☒ RECOMMENDATION:
Staff recommends the City Council adopt a resolution authorizing the disposal of surplus City property and authorize staff to dispose of that certain property by sale at local (Madera) auction and declaring that Staff may add additional small and low value items for disposal at auction, not to exceed $500.00 in value, as identified prior to sale including, but not limited to, vehicles, office furniture, outdated computers and unserviceable radios, miscellaneous items.
BACKGROUND:
Under City of Chowchilla Municipal Code Section 4.04.050, the City has the authority to sell or otherwise dispose of all commodities and equipment which cannot be used by any department or which have become unsuitable for City use. Disposition may include abandonment, destruction or donation to public bodies, charitable, civic or nonprofit organizations and may include City property which has no commercial value or for which the estimated cost of continued care, handling, maintenance, or storage would exceed the estimated proceeds of sale. Further, these assets have fully depreciated and have no residual value. Sales procedures may include negotiated sales, acceptance of sealed bids, or public auction.
The subject City property to be disposed includes:
• Ice Machine – Unit is inoperable and cannot be repaired. • New Holland Spreader – age of equipment and parts are hard to get. (Unit 160) • Piano- was located at the Senior Center
• Chrysler 300 –vehicle is inoperable. Vin #2C3KA53G46H497722 / (Unit 41) • Miscellaneous – old outdated small equipment such as chain saws, weed eaters, blowers, pumps, file cabinets, desks, etc.
As City equipment and vehicles become unusable we typically declare them as surplus which allows the City to then dispose of such. The City last disposed of declared surplus items in March 2021. The City typically combines these items with an annual auction in Madera conducted by Mulrooney Auction Company and have disposed of our surplus through their regularly scheduled auctions.
Though there is some cost to dispose of items this way, the City has netted better returns than when trying to dispose of these items itself. Through the use of the auction company, they do the advertising and will draw in buyers to get a premium price for these types of items. City staff needs only to deliver the items to their designated auction site in Madera. The next auction is scheduled for March 19, 2022.
REASON FOR RECOMMENDATION:
Disposal of City surplus property with maximum return on surplus items rather than disposing of items at landfill or recyclers.
FISCAL IMPACT:
No negative impact. There will be some out of pocket expenses to transport vehicles to sale site. City staff will palletize smaller items then transport pallets to sale site. Sale will generate some income to City by selling items the City can no longer use.
ALTERNATIVES:
Continue to store items at corporation yard and value of items continues to decrease or dispose of items at landfill or recycler which will generate little if any income to the City.
ACTIONS FOLLOWING APPROVAL:
City staff will dispose of the surplus property through various procedures that may include negotiated sales, acceptance of sealed bids, or public auction.
COUNCIL RESOLUTION # -22
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHOWCHILLA, CALIFORNIA
TO DECLARE CERTAIN UNUSED CITY PROPERTY AS SURPLUS AND AUTHORIZE STAFF TO
DISPOSE OF BY SALE AT AUCTION
WHEREAS, the City of Chowchilla (City) owns and operates equipment and vehicles; and WHEREAS, the City has other small and low value items including, but not limited to, office desks, office furniture, outdated computers and unserviceable radios; and WHEREAS, staff has designated the property in Exhibit A as no longer necessary, useful or suitable for municipal purposes; and
WHEREAS, Chowchilla Municipal Code Chapter 4.04, section 4.04.050 specifies the terms and conditions for the disposition of surplus City property; and WHEREAS, the City desires to surplus the property.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chowchilla hereby finds, determines and declares the following:
1. The above recitals are true and correct.
2. Declares the identified vehicles and equipment surplus.
3. Authorizes City staff to transport vehicles and equipment to the Madera Auction site.
4. Authorizes City staff to add additional small and low value items for disposal at auction not to exceed $500.00 in value.
5. Authorizes City staff to enter into agreement with Mulrooney Auction Company to sale surplus items at their upcoming Madera auction.
6. This resolution is effective immediately upon adoption.
PASSED AND ADOPTED by the City Council of the City of Chowchilla this 22nd day of February, 2022 by the following vote to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
APPROVED:
Mayor John Chavez
ATTEST:
Joann McClendon, CMC
City Clerk
EXHIBIT A
UNIT # YEAR MAKE MODEL DEPARTMENT VIN/Serial
41 2000 Chrysler 300 Police Dept 497722
160 New Holland Spreader WWTP
Piano Senior Center
Ice Machine City hall N/A
N/A Various Miscellaneous Small
Equipment
Various N/A
REPORT TO THE CITY COUNCIL
Item 3.5
CLICK HERE
TO RETURN TO
THE AGENDA
Meeting of: February 22, 2022
AGENDA SECTION: Consent
SUBJECT: Consideration of Quarterly Waiver Report
PREPARED BY: Rod Pruett, City Administrator/City Treasurer/Finance Director ATTACHMENTS: None
REVIEWED BY
ADMINISTRATOR ☒ REVIEWED BYATTORNEY ☒ REVIEWED BY FINANCE ☒ RECOMMENDATION:
Approve the Quarterly Waivers Report for October through December 2022, if any.
BACKGROUND:
Council approved the City Administrator to have the authority to waive penalties, interest, fees, liens, et cetera, up to $10,000. It was requested that a quarterly report be presented that summarized the transaction the City Administrator granted under this authority.
REASON FOR RECOMMENDATION:
This report is a summary of the waivers that were issued and is an element of transparency for the Council and the public. Waivers are issued on a case by case basis and will fluctuate from quarter to quarter. This is a tool for the Council to evaluate the use and effectiveness of the program. However, there were no waivers in the last quarter of 2021.
FISCAL IMPACT:
There were no waivers given during this Quarter.
ALTERNATIVES:
Pull the item for further discussion
ACTIONS FOLLOWING APPROVAL:
None
REPORT TO THE CITY COUNCIL
Item 4.1
CLICK HERE
TO RETURN TO
THE AGENDA
Meeting of: February 22, 2022
AGENDA SECTION: Public Hearing
SUBJECT: Introduction, First Reading with Option to Waive the First Reading of an Ordinance to Adopt the Development Agreement for the Rancho Calera Project
PREPARED BY: Annalisa Perea, AICP, Contract City Planner Mark Hamilton, Director of Community & Economic Development ATTACHMENTS: Ordinance, Development Agreement
REVIEWED BY
ADMINISTRATOR ☒ REVIEWED BYATTORNEY ☒ REVIEWED BY FINANCE ☒ RECOMMENDATION:
Staff recommends the City Council introduce and waive the first reading of an ordinance to adopt the Development Agreement for the Rancho Calera project.
BACKGROUND:
On December 9, 2021, the City Council approved a package of project entitlements for the Rancho Calera project, including a General Plan Amendment #19-0003, Zoning Map Amendment #19-0011, Tentative Subdivision Map #21-0010, Development Agreement, Mitigated Negative Declaration (MND), and a Mitigation Monitoring and Reporting Program (MMRP). Upon review of the prior approvals, staff became aware that approval of a development agreement must be made by ordinance. Staff is bringing the previously approved Development Agreement before Council to adopt via ordinance, pursuant to Chowchilla Municipal Code section 17.64.100. The Development Agreement (Attachment A) is unchanged from the version presented to the City Council in December 2021.
Rancho Calera is a 561-acre adopted master planned community east of SR 99 within the City of Chowchilla. The Project site lies approximately one-half mile east of Chowchilla’s City Center, a mile northeast of the Chowchilla Municipal Airport, and immediately northeast of the East Robertson Boulevard and Highway 99 interchange (Attachment 1 and 2). Rancho Calera Development is a project consisting of a mixture of residential, commercial, and civic land uses, school facilities, and land reserved for various parks and open space uses.
ENVIRONMENTAL REVIEW ANALYSIS:
The City is the Lead Agency for this Project pursuant to CEQA Guidelines Section 15000 et seq. A Mitigated Negative Declaration (MND) and Mitigation Monitoring and Reporting Program (MMRP) was adopted for this Project pursuant to CEQA Guidelines.
FINDINGS:
Before a Development Agreement can be adopted, the City Council must make following findings:
1. The development agreement is consistent with the goals, objectives, and policies of the General Plan;
The proposed Rancho Calera Development Agreement is consistent with the goals, objectives, and policies of the General Plan and the applicable titles.
2. The development agreement is consistent with the Rancho Calera Specific Plan; The proposed Rancho Calera Development Agreement is consistent with the Rancho Calera Specific Plan.
FISCAL IMPACT:
None foreseen at time of report.
ALTERNATIVES:
Deny the Development Agreement this Project.
ACTIONS FOLLOWING APPROVAL
Following introduction of the ordinance, the City Council shall hold a second reading and consider adoption of the ordinance at a regular meeting of the City Council.
CITY COUNCIL ACTION(s):
The Council’s actions to be considered:
Development Agreement:
MOVE TO INTRODUCE AND WAIVE THE FIRST READING OF AN ORDINANCE OF THE CITY
COUNCIL OF THE CITY OF CHOWCHILLA ADOPTING THE DEVELOPMENT AGREEMENT FOR THE RANCHO CALERA PROJECT.
or
MOVE TO DENY THE DEVELOPMENT AGREEMENT FOR THE RANCHO CALERA PROJECT.
ORDINANCE # XXX-22
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHOWCHILLA, CALIFORNIA ADOPTING A DEVELOPMENT AGREEMENT FOR THE RANCHO CALERA PROJECT AREA.
WHEREAS, various project entitlements were submitted by Rancho Calera, LLC to amend the approved Rancho Calera Specific Plan; and
WHEREAS, the Chowchilla City Council on December 9, 2021 approved the entitlements, including the proposed Development Agreement; and
WHEREAS, development agreements must be adopted by Ordinance pursuant to Section
17.64.100 of the City’s Municipal Code; and
WHEREAS, the City Council approved a Mitigated Negative Declaration (MND) and Mitigation Monitoring and Reporting Program (MMRP) for the Project which concluded that all potential impacts would be reduced to a level of less than significant with implementation of all proposed mitigation measures; and WHEREAS, this public hearing was duly noticed for the February 22, 2022 Regular City Council meeting; and
WHEREAS, the City Council has carefully considered the staff report, recommendations and all oral and written evidence presented during the public hearing; and WHEREAS, the City Council was able to make all of the findings required to be made as identified in section 17.64.100 of the City’s Municipal Code in order to adopt a development agreement.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CHOWCHILLA DOES ORDAIN AS FOLLOWS:
Section 1. The Development Agreement for the Rancho Calera Project, attached hereto as Exhibit 1, is hereby adopted.
Section 2. This Ordinance shall go into effect and be in full force from and after thirty (30) days after its final passage and adoption.
PROVED, PASSED, and ADOPTED this ___ day of __________, 2022.
APPROVED:
________________________
Mayor John Chavez
ATTEST:
_______________________
Joann McClendon, CMC
City Clerk
I, Joann McClendon, City Clerk of the City of Chowchilla, California, do hereby certify that the foregoing Ordinance number xxx-22 was duly introduced for the first reading on February 22, 2022 and adopted at a regular meeting of the City Council of the City of Chowchilla on _______________ XX, 2022.
AYES:
NOES:
ABSENT:
ABSTAIN:
IN WITNESS THEREOF, I hereunto set my hand and affix the official seal of the City of Chowchilla on this ___ day of ____________, 2022.
Joann McClendon, CMC
City Clerk
EXHIBIT 1
(Development Agreement)
_____ City _____ Master Developer Page 1 of 50
Development Agreement
by and between
the City of Chowchilla and Rancho Calera, LLC,
relative to the Development known as
Rancho Calera
This Development Agreement (hereinafter “Agreement”) is entered into as of the Effective Date (hereinafter defined) by and among the CITY OF CHOWCHILLA, a municipal corporation (the “City”), and RANCHO CALERA, LLC, a California limited liability company (“RC”).
RECITALS
WHEREAS, to strengthen the public land use planning process, to encourage private participation in the process, to reduce the economic risk of development, and to reduce the waste of resources, the California Legislature adopted the Development Agreement Statutes (California Government Code §65864, et seq.), which authorizes the City to enter into an agreement with any person having a legal or equitable interest in real property regarding the development of such property; WHEREAS, the City adopted Ordinance No. 380-02 which added Chapter 17.64 to the Municipal Code, establishing procedures and requirements for consideration and approval of development agreements;
WHEREAS, this Agreement relates to the development known as Rancho Calera, a mixed-use residential, commercial, and public use community planned by RC for the Project Area (hereinafter defined);
WHEREAS, the terms and conditions of this Agreement have undergone extensive review by the City staff, the Planning Commission (hereinafter defined), and the Council and have been found to be fair, just, and reasonable;
WHEREAS, the best interests of the citizens of the City of Chowchilla and the public health, safety and welfare will be served by entering into this Agreement; WHEREAS, the previous actions of the City, set forth in Exhibit A attached hereto and incorporated herein by this reference, have been duly taken or approved in accordance with all applicable legal requirements for notice, public hearings, findings, votes, and other procedural matters, or will have been at the time the City executes this Agreement; WHEREAS, this Agreement will eliminate uncertainty in planning and provide for the orderly development of the Project Area, ensure progressive installation of necessary improvements, provide for public services appropriate to the development of the Project (hereinafter defined), and generally serve the purposes for which development agreements under California Government Code §65864, et seq., and Municipal Code Chapter 17.44 are intended; and _____ City _____ Master Developer Page 2 of 50
WHEREAS, in exchange for these benefits to the City, together with the public benefits to be served by the development of the Project Area, RC desires to receive the assurance that it may proceed with development of the Project Area in accordance with certain existing ordinances, resolutions, policies and regulations of the City pursuant to the terms and conditions contained in this Agreement, based on both Existing and Subsequent Development Approvals (hereinafter defined).
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. DEFINITIONS AND EXHIBITS.
1.1 Definitions. The following terms when used in this Agreement shall be defined as follows:
1.1.1 “Agreement” means this Development Agreement, as amended from time to time.
1.1.2 “City” means the City of Chowchilla, a municipal corporation.
1.1.3 “City Attorney” means the person holding the office of the same name or the equivalent in the City.
1.1.4 “City Clerk” means the person holding the office of the same name or the equivalent in the City.
1.1.5 “City Administrator” means the person holding the office of the same name or the equivalent in the City.
1.1.6 “Council” means the elected members of the public serving as the City Council of the City of Chowchilla.
1.1.7 “2006 CFD” means that certain Community Facilities District No. 2006-01, Improvement Area 1, adopted by the Council acting as the legislative body of the District, on April 23, 2007, pursuant to Resolution No. 44-07, as amended from time to time.
1.1.8 “Development” means (i) the division of a parcel of land into two (2) or more parcels; (ii) the construction, reconstruction, conversion, structural alteration, relocation, or enlargement of any structure; (iii) any excavation, landfill, or land disturbance; and (iv) any use or extension of the use of land.
1.1.9 “Development Approvals” means all permits and other entitlements subject to approval or issuance by the City in connection with Development of the Project Area including, but not limited to all permits and other entitlements (i) approved or issued prior to or concurrent with the Effective Date which are listed in Exhibit A attached hereto and incorporated herein by this reference (the “Existing Development Approvals”), and (ii) obtained by Master Developer and/or an Owner, with the consent of Master Developer, in connection with Development of the Project Area subsequent to the Effective Date, _____ City _____ Master Developer Page 3 of 50
but prior to the expiration of the Term of this Agreement, which are consistent with the General Plan and the Specific Plan (the “Subsequent Development Approvals”).
1.1.10 “Development Exaction” means any requirement of the City in connection with or pursuant to any Land Use Regulations or Ordinances or Development Approvals for the dedication of land, the construction or increase in size of improvements or public facilities, or the payment of fees in order to lessen, offset, mitigate, or compensate for the impacts of Development on the environment or other public interests and does not include processing fees.
1.1.11 “Effective Date” means the effective date of the Enacting Ordinance approving this Agreement in accordance with Municipal Code of the City of Chowchilla Section 17.64.
1.1.12 “Enacting Ordinance” means Ordinance No. of the Council adopted by the Council on , 2021, as set forth in Resolution No.
authorizing the City to enter into this Agreement.
1.1.13 “Environmental Impact Report” means the Environmental Impact Report for the Rancho Calera Specific Plan certified by the Council on May 2, 2011, as set forth in Resolution No. 3-11, and on file with the City Clerk, as amended by that certain Mitigated Negative Declaration approved by the Council on , 2021, as set forth in Resolution No. , and on file with the City Clerk.
1.1.14 “Existing Land Use Regulations and Ordinances” means all Land Use Regulations and Ordinances in effect and a matter of public record as of the Effective Date.
1.1.15 “General Plan” means The City of Chowchilla General Plan adopted by the Council on May 2, 2011, as set forth in Resolution No. 45-11, and on file with the City Clerk.
1.1.16 “Lender” means any bank, savings and loan association, insurance company, private equity firm or other source of financing for the acquisition, development, construction, and/or operation of the Project Area.
1.1.17 “LSDF” means Land Secured Debt Financing, a financing mechanism whereby real property secures funds obtained by a public entity for the purpose of constructing and/or maintaining improvements.
1.1.18 “Land Use Regulations and Ordinances” means the City’s rules, regulations, Ordinances, and official policies governing permitted use, density, design, improvement, and construction of the Project Area.
1.1.19 “Master Developer” means Rancho Calera, LLC, a California limited liability company, or any individual or entity which acquires all or a portion of the Project Area and which assumes the obligations of Master Developer set forth in this Agreement.
1.1.20 “Ordinances” means the ordinances, resolutions, and codes of the City governing the permitted uses of land, density, design, improvement, construction standards and specifications applicable to the Development and use of the Project Area. Specifically, but without limiting the generality of the foregoing, Ordinances shall include the City’s _____ City _____ Master Developer Page 4 of 50
General Plan, the Specific Plan, and Zoning Titles of the Municipal Code of the City, and the City’s Building, Electrical, Mechanical, Plumbing, and Fire Codes.
1.1.21 “Owner” means any entity that succeeds to the interest of Master Developer with respect to all or any portion of the Project Area with the intent of constructing commercial or dwelling units for use, sale, or lease to members of the public or other ultimate users, or any other successor in interest to Master Developer as to fee title to a portion of the Project Area.
1.1.22 “Planning Commission” means the appointed members of the public serving as the Planning Commission of the City of Chowchilla.
1.1.23 “Project” means the Development of the Project Area contemplated by the Specific Plan, as such Specific Plan may be further defined, enhanced, amended, or modified.
1.1.24 “Project Area” means the real property described on Exhibit B to this Agreement, attached hereto and incorporated herein by this reference.
1.1.25 “2003 RD” means that certain City of Chowchilla Reassessment District No. 2003- 1, and that certain Resolution of Intention for the Levy of Reassessments adopted by the Council on July 28, 2003, pursuant to Resolution No. 53-03.
1.1.26 “Specific Plan” means the Rancho Calera Specific Plan, including all exhibits and appendices, adopted for the Project Area by the Council on May 2, 2011, and on filed with the City Clerk, as amended pursuant to Ordinance No. , adopted by the Council on , 2021, and on file with the City Clerk.
1.1.27 “Subsequent Land Use Regulations and Ordinances” means those Land Use Regulations and Ordinances adopted and effective after the Effective Date of this Agreement.
1.1.28 “Vest”, “Vesting”, “Vested” mean the conferring of the rights granted to Master Developer under this Agreement and subject to all the terms, conditions and requirements of this Agreement, to proceed with the Development of the Project Area based on the agreement of the City hereunder that certain regulations and requirements in the Development Approvals pertaining to the Development of the Project Area are fixed and, except as permitted by this Agreement, that they cannot be subsequently modified, changed or augmented so as to impose additional requirements or burdens on the Development of the Project Area without Master Developer’s consent.
1.2 Undefined Terms. Terms not defined in Section 1.1 shall have the meanings set forth in this Agreement, the Specific Plan, the General Plan, or the Environmental Impact Report, in that order of priority.
1.3 Exhibits. The following documents are attached to this Agreement as exhibits hereto:
Exhibit A Existing Development Approvals
Exhibit B Legal Description of the Project Area
_____ City _____ Master Developer Page 5 of 50
2. GENERAL PROVISIONS.
2.1 Binding Effect of Agreement. The Project Area is hereby made subject to this Agreement.
Development of the Project Area is authorized and shall be carried out only in accordance with the terms of this Agreement and the Development Approvals.
2.2 Ownership of the Project Area. Master Developer represents and covenants that it holds the sole and absolute right in fee simple title to the Project Area.
2.3 Term. Notwithstanding any other provision of this Agreement, the term of this Agreement (the “Term”) shall commence on the Effective Date and shall continue for a period of twenty (20) years thereafter, unless sooner terminated or extended as hereinafter provided.
2.3.1 Extensions. The City Administrator is authorized to and, upon written request of Master Developer, shall permit two (2) extensions of five (5) years each to the Term, not to exceed thirty (30) years in the aggregate for the Term hereof, if the City Administrator determines with respect to each five (5) year extension that Master Developer is not in default under this Agreement. In the event the City Administrator determines that the Master Developer is in default under this Agreement, the matter shall be referred to Council for review pursuant to Section 9.1 of this Agreement, which could result in termination of this Agreement.
2.3.2 Letter from City Administrator. An extension of the Term of this Agreement pursuant to the foregoing provisions shall not be deemed an amendment of this Agreement and may be evidenced by a letter from the City Administrator, it being the intent of the Enacting Ordinance to authorize a minimum twenty (20) year and a maximum thirty (30) year Term of this Agreement as herein provided and subject to the terms of this Agreement.
2.3.3 Tolling. If any litigation affecting the Project Area is filed challenging any of the Development Approvals or this Agreement (including but not limited to any environmental determinations relating to any of the foregoing), or otherwise raising issues of the validity of the Development Approvals or the valid or binding nature of this Agreement, the Term of this Agreement shall be extended for the period of time such litigation is pending, and upon the conclusion of such litigation by dismissal or final entry of judgment, Master Developer and the City shall record notice to such effect; provided, however, and subject to Section 11.3 below, if such litigation results in a final determination of invalidity of any such actions, the City may terminate this Agreement to the extent necessary to comply with any such final determination.
2.3.4 Reasonable Estimate. The Term has been established by the parties as a reasonable estimate of the time required to implement the necessary requirements of the Existing Development Approvals and to obtain the public benefits of this Agreement.
The City finds that a term of such duration is reasonably necessary to assure the City of the realization of the public benefits from the Project, particularly, but not limited to Development of the public facilities and major infrastructure elements of the Project as set forth in the Specific Plan. In establishing and agreeing to such Term, the City has determined that the Existing Development Approvals and this Agreement incorporate _____ City _____ Master Developer Page 6 of 50
sufficient provisions to permit the City to monitor adequately and respond to changing circumstances and conditions in undertaking actions to carry out the Development Approvals, the Specific Plan, and this Agreement.
2.3.5 Effect of Expiration. Expiration of the Term shall not affect any rights of the Master Developer and Owners arising from the Development Approvals.
2.3.5.1 If any Tentative Map or Final Subdivision Map or Tentative Parcel Map or Final Parcel Map heretofore or hereafter approved in connection with Development of the Project Area is a vesting map under the Subdivision Map Act, and this Agreement is determined by a final judgment to be invalid or unenforceable insofar as it grants a Vested right to develop to an Owner, then and to the extent the rights and protections afforded such Owner under the laws and Ordinances applicable to vesting maps shall supersede the provisions of this Agreement.
2.3.5.2 Pursuant to California Government Code §66452.6(a), the term of the Tentative Maps and Final Subdivision Maps or any re-subdivision or amendment to the Tentative Maps or Final Subdivision Maps (including any lot line adjustment or merger of lots within the Tentative Maps or Final Subdivision Maps) for the Project Area, or any part thereof, or any other Tentative Maps filed subsequent to the Effective Date of this Agreement shall automatically be extended for the Term of this Agreement.
2.4 Assignment. No sale or transfer of the Project Area shall require an amendment to this Agreement when performed in accordance with the provisions of this Agreement.
2.4.1 Assignment. Neither Master Developer nor any Owner shall have an obligation to seek the consent of the City Administrator prior to assigning, transferring, or selling any portion of the Project Area. Within sixty (60) days of any such assignment, transfer, or sale of any portion of the Project Area, Master Developer or the Owner shall deliver to the City a written assignment and assumption agreement fully executed by Master Developer or the Owner, and the buyer, whereby buyer assumes all of those obligations of Master Developer or the Owner relating to that portion of the Project Area acquired by buyer. Upon delivery of the assignment and assumption agreement to the City Administrator, Master Developer or the Owner shall be relieved of the terms and conditions of this Agreement as they relate to that portion of the Project Area transferred to buyer by Master Developer or the Owner, except as otherwise set forth in the assignment and assumption agreement.
2.4.2 Release of Purchaser or Transferee of a Residential or Commercial Lot. A purchaser or transferee of a parcel or lot which has been finally subdivided as provided for in the Specific Plan or any other plan applicable to the Project Area, and for which a certificate of occupancy has been granted by the City, shall be released from the obligations under this Agreement, provided that the parcel or lot cannot be further subdivided and has been individually sold or leased to a member of the public or other ultimate user, as opposed to having been sold or leased in bulk to another Master _____ City _____ Master Developer Page 7 of 50
Developer or builder or having been sold or leased individually to a builder or other investor prior to construction of improvements to be occupied by the ultimate user. City shall, upon written request made by Master Developer to the City, determine if the Agreement has been terminated with respect to any parcel or lot within the Property, and shall not unreasonably withhold, condition, or delay termination as to that lot or parcel.
Upon termination of this Agreement as to any lot or parcel, City shall upon Master Developer’s request record a notice of termination that the Agreement has been terminated as to that parcel or lot within the Property. The aforesaid notice may specify, and Master Developer agrees, that termination shall not affect in any manner any continuing obligation to pay any item specified by this Agreement. Termination of this Agreement as to any parcel or lot within the Property shall not affect Master Developer’s rights or obligations under any of the Development Approvals, including but not limited to, the General Plan, Specific Plan, Existing Land Use Regulations and Ordinances, and all other City policies, regulations, and ordinances applicable to the Project Area or the Property. City may charge a reasonable fee for the preparation and recordation of any notices of termination requested by Master Developer.
3. AMENDMENT
3.1 Amendment of this Agreement. This Agreement may be amended or canceled in whole or in part from time to time by the mutual written agreement of the City and Master Developer.
3.1.1 Notice and Public Hearing Requirements. Prior to amending or cancelling this Agreement, in whole or in part, the City shall provide the notice and/or conduct a public hearing required pursuant to California Government Code §65868. Such amendment may be approved by City ordinance. Notwithstanding the foregoing, no public notice or hearing shall be required for any amendment which (a) does not substantially affect (i) the Term of this Agreement, (ii) permitted uses of the Project Area, (iii) provisions for the reservation or dedication of land, (iv) the density or intensity of use of the Project Area or the maximum height or size of proposed structures, or (v) monetary contributions by Master Developer, or (b) is intended to create consistency with an Administrative Minor Deviation made to the Specific Plan as permitted by the Specific Plan (“Ministerial Agreement Amendments”). Ministerial Agreement Amendments shall be evidenced in writing and executed by Master Developer and the City Administrator.
3.1.2 Amendment to the Development Approvals. No amendment to this Agreement shall be required as the result of any amendment to the Development Approvals. All Subsequent Development Approvals shall be automatically incorporated into this Agreement, shall be deemed Vested upon approval, and shall be an integral part hereof.
3.1.3 Conditions of Approval. The City shall not impose as a condition to any amendment to this Agreement, any new Development Exaction or other imposition not otherwise permitted under this Agreement, except to the extent the amendment will directly result in new burdens or impacts requiring additional mitigation or insofar as the amendment results in new or additional unmitigated significant environmental impacts. _____ City _____ Master Developer Page 8 of 50
3.2 Interpretation. The parties acknowledge that this Agreement, like all agreements, may be subject to interpretation. This Agreement is the product of mutual negotiations and participation by both the City and Master Developer (each a “Party” and collectively, the “Parties”). For purposes of construing the meaning or effect of this Agreement, or any portion hereof, it shall be presumed this Agreement was drafted by both Parties and not as if it had been prepared by one Party or the other. Each Party to this Agreement specifically acknowledges that it had sufficient opportunity to review the Agreement, confer with its separate legal counsel regarding the meaning of this Agreement and any provision contained herein, and negotiate revisions to this Agreement. Notwithstanding the foregoing, the City Administrator (with the advice and consent of the City Attorney’s office) may issue written interpretations of this Agreement. A copy of any such written interpretation shall be given to Master Developer and any Owners. If Master Developer or any Owners disagrees with any such interpretation, Master Developer and/or the Owners may appeal that interpretation to the Planning Commission by means of a notice in writing to the Planning Commission specifying the basis of the disagreement with the interpretation. The Planning Commission shall, within thirty (30) days after receipt of the written appeal of the interpretation, hold a hearing at which the City Administrator’s interpretation will be reviewed. The Planning Commission shall then determine, within thirty (30) days after completion of the hearing, whether the Planning Commission agrees with the interpretation or if it deems it appropriate to modify or withdraw the interpretation of the City Administrator. Either Party may appeal the decision of the Planning Commission to the City Council, which shall follow the Planning Commission process set forth above in reviewing any appeal to a Planning Commission decision. The decision of the City Council as to an interpretation shall be considered a final determination of the issue and, therefore, an exhaustion of administrative remedies.
3.3 Termination. This Agreement shall be deemed terminated and of no further effect upon the occurrence of any of the following events:
3.3.1 Expiration of the stated Term of this Agreement, including all extensions of the same permitted pursuant to Section 2.3 of this Agreement;
3.3.2 Entry of a final judgment by a court of competent jurisdiction setting aside, voiding, or annulling the adoption of the Enacting Ordinance approving this Agreement; provided, however, that so long as the judgment of any such court is on appeal to a higher court, this Agreement shall remain in full force and effect;
3.3.3 Except as provided in Section 4.7.2 below, the adoption of a referendum measure overriding or repealing the Enacting Ordinance approving this Agreement;
3.3.4 Completion of the Project in accordance with the terms of this Agreement including issuance of all required certificates of occupancy and acceptance by the City or applicable public agency of all required dedications; or
3.3.5 Cancellation pursuant to a Non-Compliance Finding, all as more particularly set forth in Section 8.4 and Section 8.5 below.
As allowed by law, termination of this Agreement shall not constitute termination of any Development Approvals effective as of the date of termination. Upon the termination of _____ City _____ Master Developer Page 9 of 50
this Agreement, no Party shall have any further right or obligation hereunder except with respect to any obligation to have been performed prior to such termination or with respect to any default in the performance of the provisions of this Agreement which has occurred prior to such termination or with respect to obligations which expressly survive termination of this Agreement.
3.4 Notices. All notices, demands and correspondence required or provided for under this Agreement shall be in writing and delivered via email (followed by another method of delivery), in person, or dispatched by certified mail, postage prepaid. Notice required to be given to the City shall be addressed as follows:
Chowchilla Civic Center
130 S. Second Street
Civic Center Plaza
Chowchilla, CA 93610
Attn: City Administrator
Fax No. (559) 665-7419
[email protected]
With a copy to:
Lozano Smith
7404 N. Spalding Avenue
Fresno, CA 93720
Attn: City Attorney for the City of Chowchilla
Fax No. (559) 341-5600
[email protected]
Notices required or provided for under this Agreement to be given to Master Developer shall be addressed as follows:
Rancho Calera, LLC
175 East Main Ave., Suite 110
Morgan Hill, CA 95037
Attn: Manager
Fax No. (408) 782-1662
[email protected]
With a copy to:
Hardt Mason Law
175 East Main Ave., Suite 110
Morgan Hill, CA 95037
Attn: Katharine Hardt-Mason
Fax No. (408) 778-3031
[email protected]
A Party may change its address by giving notice in writing to the other Party. In the event the City or Master Developer retains different counsel, the Party retaining different counsel shall _____ City _____ Master Developer Page 10 of 50
provide notice thereof to the other Party. Thereafter, notices, demands, and other pertinent correspondence shall be addressed and transmitted to the new address.
3.5 Applicable Law: Except as otherwise provided herein, the rules, regulations, official policies, standards, and specifications applicable to the Project shall be the Existing Land Use Regulations and Ordinances, and those set forth in this Agreement and the Development Approvals. With respect to matters not addressed by this Agreement or the Development Approvals, those rules, regulations, official policies, standards and specifications (including Ordinances and resolutions) governing permitted uses, building locations, timing of construction, densities, design, heights, fees, exactions, and taxes in force and effect on the Effective Date of this Agreement, as long as such rules are consistent with this Agreement, the Development Approvals, and the Project, shall be applicable to the Project.
3.6 Conflict of City and State or Federal Laws: As provided in California Government Code §65869.5, this Agreement shall not preclude the application 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 regulations (“Changes in Law”). In the event Changes in Law prevent or preclude compliance with one or more provisions of this Agreement and provided the terms and conditions set forth in Section 11.3 below can be met, such provisions of the Agreement shall be modified or suspended, or performance thereof delayed, as may be necessary to comply with Changes in Law, and City and Master Developer shall take such action as may be required pursuant to this Agreement. City shall cooperate with Master Developer and the Owners in the securing of any permits or approvals that may be required as a result of such modification or suspensions.
3.7 Hold Harmless Agreement. Throughout the Term of this Agreement, Master Developer and each successor Owner shall indemnify, defend, and hold the City and the City’s elected and appointed officials, officers, agents, employees, contractors, consultants, and other third parties retained by the City (the “City Parties”) harmless from any and all claims, actions, or proceedings against the City or City Parties to challenge, attack, set aside, void, or annul this Agreement and/or any approval by the City concerning the Project, including any challenges to associated environmental review, and for any and all costs, attorneys fees, and/or damages arising therefrom, and from any and all claims, liability, and damages of any kind, including but not limited to personal injury or property damage, which may arise from the performance, failure to perform, or operations of Master Developer and each successor Owner, and all contractors, subcontractors, agents, or employees of Master Developer and each successor Owner under this Agreement, specifically including the requirements of Section 11.20 below, whether such operations be by Master Developer, a successor Owner, or by any of the contractors, subcontractors, or any one or more persons directly or indirectly employed by, or acting as agent for Master Developer or a successor Owner, except to the extent of any liability for damage which may arise from the negligence or willful misconduct of the City or the City Parties. The City reserves the right to participate in the defense and may recover its own reasonable attorney fees, court costs, and staff costs from Master Developer or such successor Owners of all or any portion of the Project Area. However, Master Developer or any such successor Owners of all or any portion of the Project Area may at any time elect to abandon the benefits of this Agreement, or any part thereof that is the subject of a legal challenge, and upon such abandonment, the party _____ City _____ Master Developer Page 11 of 50
abandoning the benefits of this Agreement shall have no further obligation to defend or indemnify the City for its defense beyond costs incurred up to and including the date of abandonment should the City elect to continue to litigate the particular issue. The preceding sentence shall in no way limit Master Developer’s and each successor Owner’s indemnity obligations for liability or damages of any kind as otherwise provided in this Section 3.7.
4. USE AND DEVELOPMENT OF THE PROPERTY.
4.1 Use of the Project Area. Subject to the terms of this Agreement, including the Reservations of Authority set forth in Section 4.7 below, the Project Area shall be used and developed only for those uses set forth in the Development Approvals, and for such other uses that may be mutually agreed upon by the parties hereto, whether as a result of amendments to this Agreement or amendments to the Development Approvals.
4.2 Right to Develop. Subject to the terms of this Agreement, including the Reservations of Authority, Master Developer and the Owner(s) shall have the Vested right to develop the Project Area in accordance with the Development Plan set forth in the Specific Plan as it appeared on the Effective Date, which permits the construction of up to 2,042 residential dwelling units and up to 308,405 square feet of commercial space, all as more particularly set forth in the Specific Plan.
4.3 Maximum Height. The maximum height and size of structures to be constructed within the Project Area shall be governed by the Specific Plan.
4.4 Development of the Project Area. Subsequent Development Approvals necessary to develop the Project, including amendments to Development Approvals, shall be reviewed for approval by the City in accordance with Section 5.2 through Section 5.4 of the Specific Plan, the Existing Land Use Regulations and Ordinances, and any restrictions or other limitations set forth in this Agreement. City agrees that once the City has approved a tentative subdivision map and associated improvement plan for any part of the Property, prior to recordation of the final map for such subdivision or portion thereof, permits shall be issued for grading and installation of infrastructure for the relevant area at the subdivider’s risk prior to recordation of the final map.
4.4.1 Master Developer shall have the right to review and approve all tentative subdivision maps, site development plans, improvement plans, and architectural plans related to development of any portion of the Project, excepting any subdivision maps, site development plans, improvement plans, and architectural plans prepared by or on behalf of the City in connection with development of any public facility or public park being constructed by or on behalf of the City. Each Owner shall have the option of submitting any such Subsequent Development Approvals to Master Developer prior to submission of the same to the City for review and approval, or submitting such Subsequent Development Approvals to the City, following which the City shall forward the same to Master Developer for review and approval. In the event the City receives a tentative map, site development plan, improvement plan, or architectural plan which is not accompanied by a written letter from Master Developer approving the same (each a “Master Developer Letter of Approval”), the City shall forward the same to Master Developer for review and approval. Master Developer shall have fifteen (15) business days to review any such Subsequent Development Approvals submitted to it by the City _____ City _____ Master Developer Page 12 of 50
(the “Master Developer Review Period”). Prior to termination of the Master Developer Review Period, Master Developer shall deliver to the City either a Master Developer Letter of Approval or notice of Master Developer’s rejection of such submission. Master Developer shall work with the Owner of a submission which was rejected by Master Developer and the City in reaching an agreement for approval of the same. Failure by Master Developer to deliver a Master Developer Letter of Approval during the Master Developer Review Period shall be deemed approval of the submission delivered to Master Developer. Except for the situation in which Master Developer fails to deliver a Master Developer Letter of Approval within the Master Developer Review Period, the City shall proceed with processing any of the foregoing identified Subsequent Development Approvals only upon receipt of a Master Developer Letter of Approval.
4.5 Water Rights. Subject to the terms and conditions set forth in this Section 4.5, Master Developer has agreed and does hereby agree to release and relinquish to City all of its right, title and interest in all water located on or under the Project Area. Notwithstanding the foregoing, Master Developer shall retain all of its right, title, and interest in the water and/or water rights set forth in the agreements with the Chowchilla Water District (“CWD”), the Bureau of Reclamation (“BuRec”), and Pheasant Run, LLC, (“PR”), including all heirs, successors, and assigns of CWD, BuRec, and PR. Additionally, Master Developer shall have the right to apply for agricultural water well permits if Master Developer elects, at its sole and absolute discretion, to allow for agricultural use of the Project Area in the event the Project Area, or any portion thereof, cannot be developed due to reasons beyond Master Developer’s control.
4.6 No Additional Reservations or Dedications of Land for Public Purposes. The terms and conditions set forth in Section 5.1 of the Specific Plan shall control with regard to additional reservations and dedications of land.
4.7 Reservations of Authority.
4.7.1 Limitations, Reservations and Exceptions. Notwithstanding the intent of the parties to this Agreement to enable Master Developer and the Owners of the Project Area to develop the Project Area in accordance with the Development Approvals and the Existing Land Use Regulations and Ordinances, to the extent legally permissible, and notwithstanding any other provision of this Agreement, the City and Master Developer acknowledge and agree that the following Subsequent Land Use Regulations and Ordinances shall apply to the Development of the Project Area:
4.7.1.1 Processing, inspection and similar fees and charges imposed by the City to cover the estimated actual costs to the City of processing applications for Development Approvals or for monitoring compliance with any Development Approvals granted or issued;
4.7.1.2 Except as otherwise set forth in this Agreement, procedural regulations relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals and any other matter of procedure; _____ City _____ Master Developer Page 13 of 50
4.7.1.3 Regulations governing construction standards and specifications, including without limitation, the City’s adopted Building Code, Plumbing Code, Mechanical Code, Electrical Code, Fire Code and Grading Code; and
4.7.1.4 Regulations which may be in conflict with the Existing Land Use Regulations and Ordinances, but which are reasonably necessary to protect the public health, safety, and welfare. To the extent possible, any such regulations shall be applied and construed so as to provide Master Developer with the rights and assurances provided under this Agreement.
4.7.2 Development Control Limitations. To the extent allowed by law, no other land use regulations, rules or policies enacted or adopted subsequent to the Effective Date of this Agreement, whether enacted by action of the City or by initiative, referendum or otherwise, including, without limitation, those which limit or restrict the rate, timing or sequencing of development of the Project, or any inclusionary housing ordinance, affordable housing ordinance, or similar ordinance that would require Master Developer to provide a minimum number of below-market rate housing units at the Property or pay a fee in-lieu of providing below-market rate housing units at the property (“development control limitations”) shall apply to the Project. The City agrees to cooperate with Master Developer and the Owners of the Project Area in a reasonable manner in order to keep this Agreement in full force and effect notwithstanding any such development control limitations.
4.7.3 Intent. The parties acknowledge and agree that the City is restricted in its authority to limit its police power by contract and that the foregoing limitations, reservations and exceptions are intended to reserve to the City all of its police power which cannot be so limited in accordance with California Government Code §65866 and §65869.5. This Agreement shall be construed, contrary to its stated terms if necessary, to reserve to the City all such power and authority which cannot be restricted by contract.
4.8 Provision of Real Property Area Interests by City. In any instance where Master Developer or an Owner is required to construct any public improvement on land not owned by Master Developer or such Owner, Master Developer or the Owner shall, at its sole cost and expense, use its best efforts to provide or cause to be provided, the real property interests necessary for the construction of such public improvements. In the event Master Developer or the Owner is unable after exercising reasonable efforts, including, but not limited to, the rights under California Civil Code §§1001 and 1002, to acquire the real property interests necessary for the construction of such public improvements, if requested by Master Developer or the Owner and upon Master Developer’s or the Owner’s provision of adequate security for costs the City may reasonably incur, the City may negotiate the purchase of the necessary real property interests to allow Master Developer or such Owner to construct the public improvements as required by this Agreement or the Development Approvals, and/or, in accordance with the procedures established by law, the City may use its power of eminent domain to acquire such required real property interests, in City’s sole discretion and without any obligation to purchase or acquire by eminent domain any real property interest. Master Developer or the Owner shall pay all costs associated with such acquisition or condemnation proceedings. This Section 4.8 is not intended _____ City _____ Master Developer Page 14 of 50
by the parties to impose upon Master Developer or any Owner an enforceable duty to acquire land or construct any public improvements on land not owned by Master Developer or an Owner, except to the extent that Master Developer or such Owner elects to proceed with Development of the Project, and then only in accordance with valid conditions imposed by the City upon the Development of the Project under the Subdivision Map Act or other legal authority. The requirement for such non-owned or off-site improvements may be waived by the City at its sole discretion. However, in accordance with California Government Code §66462.5, (a) A city, county, or city and county shall not postpone or refuse approval of a final map because the subdivider has failed to meet a tentative map condition which requires the subdivider to construct or install offsite improvements on land in which neither the subdivider nor the local agency has sufficient title or interest, including an easement or license, at the time the final map is filed with the local agency, to permit the improvements to be made. In such cases, unless the city, county, or city and county requires the subdivider to enter into an agreement pursuant to subdivision (c), the city, county or city and county shall, within 120 days of the filing of the final map, pursuant to Section 66457, acquire by negotiation or commence proceedings pursuant to Title 7 (commencing with Section 1230.010) of Part 3 of the Code of Civil Procedure to acquire an interest in the land which will permit the improvements to be made, including proceedings for immediate possession of the property under Article 3 (commencing with Section 1255.410) of Chapter 6 of that title.
(b) If a city, county, or city and county has not required the subdivider to enter into an agreement pursuant to subdivision (c) and if a city, county, or city and county fails to meet the 120-day time limitation, the condition for construction of offsite improvements shall be conclusively deemed to be waived. The waiver shall occur whether or not the city, county, or city and county has postponed or refused approval of the final map pursuant to subdivision (a).
(c) Prior to approval of the final map the city, county, or city and county may require the subdivider to enter into an agreement to complete the improvements pursuant to Section 66462 at such time as the city, county, or city and county acquires an interest in the land that will permit the improvements to be made.
The Parties agree that should Master Developer or any Owner seek approval of a final map prior to completion of any offsite improvements as described in Government Code section 66462.5, subdivision (a), this Agreement shall constitute an agreement to complete such improvements as contemplated in Government Code section 66462.5, subdivision (c), as described above.
4.9 Regulation by Other Public Agencies. It is acknowledged by the Parties that other public agencies not within the control of the City possess authority to regulate aspects of the Development of the Project separately or jointly with the City and this Agreement does not limit the authority of such other public agencies. Notwithstanding the foregoing, the City agrees that _____ City _____ Master Developer Page 15 of 50
it shall assist Master Developer and all Owners in obtaining those approvals necessary to develop the Project Area.
5. RC DEVELOPMENT IMPACT FEES.
5.1 RC Development Impact Fees- Intent of the Parties. Master Developer and the Owners shall be responsible for the payment of the development impact fees set forth in Section 5.2 below, as amended from time to time and increased or decreased as set forth in Section 5.2.5 below (the “RC Development Impact Fees”). The parties hereby acknowledge and agree that the RC Development Impact Fees are (a) substantially similar to the citywide development impact fees in both purposes and amounts, and (b) intended to be a complete and absolute substitution for the payment of any citywide development impact fees or any additional development impact fees imposed by the City throughout the Term of this Agreement. Except for the obligation to pay the RC Development Impact Fees identified in Section 5.2, neither Master Developer nor any Owner shall be responsible for the payment of any additional development impact fees imposed by the City.
5.2 RC Development Impact Fees. The RC Development Impact Fees, which are applicable to the Project Area only and which remain subject to all citywide development impact fee increases and decreases throughout the Term of this Agreement, all as more particularly set forth in Section
5.2.5 below, are as follows:
……..
1 As of the Effective Date of this Agreement, the Citywide Traffic Impact Fee imposed on all new development is $6,047.59 per residential unit. $1,358.00 of the Citywide Traffic Impact Fee due for each residential unit has been moved to the City East Robertson Blvd Improvement Fee to cover the cost of the City East Robertson Blvd Improvements (see Section 5.2.2.1 below). 2 The Parks and Recreation Impact Fee is comprised of the major community park fee, more particularly set forth in Section 5.2.4.1 ($425.76), and the adjusted minor community park, more particularly set forth in Section 5.2.4.2 below ($237.13), for a total RC Park and Recreation Impact Fee of $662.89. No neighborhood park fee is included in the Parks and Recreation Impact Fee for the reasons set forth in Section 5.2.4.3 below.
RC Development Impact Fees Residential
(per unit)
Commercial
(per sq. ft)
RC Citywide Traffic Impact Fee $4,689.591 $2.03
East Robertson Blvd Improvement Fee
City East Robertson Blvd Impact Fee $1,358.00 $0
RC East Robertson Blvd Beautification
Impact Fee $5,863.00 $0
RC Signalization Impact Fee $238.42 $0.19
RC Sewer Treatment Impact Fee $6,186.94 $1.33
RC Water Supply Impact Fee $2,253.05 $0.51
RC General City Facilities Impact Fee 961.24 $0.42
RC Fire Facilities Impact Fee $1,751.01 $0.74
RC Police Facilities Impact Fee $945.48 $0.40
RC Storm Drain Impact Fee $0 $0
RC Parks and Recreation Impact Fee $662.892 $0
Total RC Development Impact Fees: $24,909.62 $5.62
_____ City _____ Master Developer Page 16 of 50
5.2.1 Payment of the RC Development Impact Fees. The RC Development Impact Fees shall be paid to the City concurrent with issuance by the City of a certificate of occupancy for each structure within that portion of the Project Area being developed by Master Developer or an Owner. The City may refuse to issue a certificate of occupancy for any structure within the Project Area for which the RC Development Impact Fees have not been paid.
5.2.2 East Robertson Blvd Improvement Fee. The East Robertson Blvd Improvement Fee, set forth in Section 5.2 above shall be placed in a segregated bank account and used solely for the purpose of constructing the East Robertson Blvd Improvements defined below, including without limitation those costs and fees related to the design, engineering, construction, and management of constructing the East Robertson Blvd Improvements, and for no other purposes, until such time as the East Robertson Blvd Improvements are complete. Upon completion and acceptance of the East Robertson Blvd Improvements by the City and provided any reimbursements due to Master Developer pursuant to Section 6.3.2.5 below have been delivered to Master Developer, any East Robertson Blvd Improvement Fees remaining or deposited in the segregated account or paid to the City shall be available to the City for those uses set forth in Section
6.3.2.7 below. The terms and conditions related to use of the East Robertson Blvd Improvement Fee and construction of the East Robertson Blvd Improvements are more particularly set forth in Section 6.3 below.
5.2.2.1 The East Robertson Blvd Improvement Fee consists of two components.
The first component, the City East Robertson Blvd Impact Fee set forth in Section
5.2 above in the amount of $1,358.00 per residential dwelling unit, is intended to cover those costs for which the City is responsible, namely (i) the median (including irrigation and landscaping), and (ii) two travel lanes (the two travel lanes on the north side of the median to the northern curb) within the East Robertson Blvd- Phase 1 Improvements, and (iii) one travel lane (the travel lane on the north side of the median to the northern curb) within the East Robertson Blvd-Phase 2 & 3 improvements (the “City East Robertson Blvd Improvements”), all as more particularly shown in Schedule 5.2.2.1. The second component, the East Robertson Blvd Beautification Impact Fee set forth in Section 5.2 above in the amount of $5,863.00 per residential dwelling unit, is intended to cover those costs for which the Master Developer is responsible, namely (a) the bike/pedestrian path, curb and gutter, landscaped setback (including a sidewalk, bus shelter, irrigation and landscaping), from the edge of the northern East Robertson Blvd travel lane to the northern boundary of the East Robertson Blvd public right of way, and where applicable in East Robertson Blvd Phase 2 & 3, the hydroseeded interim landscaping from the edge of the northern East Robertson Blvd travel lane to the northern boundary of the East Robertson Blvd public right of way, (b) any underground wet and dry utilities and infrastructure within the East Robertson Blvd public right of way which are required for Development of the Project Area (including fire hydrants), and (c) undergrounding of the PG&E power line and all _____ City _____ Master Developer Page 17 of 50
related equipment and fixtures within the East Robertson Blvd right of way (the “Master Developer East Robertson Blvd Improvements”, and together with the City East Robertson Blvd Improvements, collectively the “East Robertson Blvd Improvements”).
5.2.3 RC Storm Drain Impact Fees. At no time during the term of this Agreement shall Master Developer, an Owner, or any portion of the Project Area be subject to the payment of storm drain impact fees, it being the agreement of the parties hereto that no such impact fees are due to the City as the result of infrastructure already constructed to serve a portion of the Project Area and the obligation of Master Developer or the Owners to construct all other storm drain improvements within the Project Area.
5.2.4 RC Park and Recreation Impact Fees. The RC Park and Recreation Impact Fee set forth in Section 5.2 above, which are lower than those set forth on the citywide development impact fee schedule as of the Effective Date, are intended to reflect the obligations of the City, the Master Developer, and Owners with regard to construction and dedication of all parks within the Project Area. The amount set forth in Section 5.2 is based on the information set forth in the City’s nexus study3 relating to the development of major community parks, minor community parks, and neighborhood parks, and the obligations of Master Developer and the Owners with regard to the same. The City’s nexus study sets forth a development impact fee for each of these park categories, all of which are applicable only to residential development. Based on the following, the parties have agreed, and do hereby agree, that neither Master Developer nor any Owner shall be responsible for payment of the entire park and recreation citywide development impact fees charged to all residential developers as of the Effective Date. Rather, Master Developer and the Owners shall be responsible for the RC Park and Recreation Impact Fee set forth in Section 5.2 above which the parties acknowledge and agree is a fair amount in light of the following:
5.2.4.1 Because there is no major community park within the Project Area, Master Developer and the Owners shall be charged the full amount of the major community parks component of the parks and recreation citywide development impact fees ($425.76 per residential unit), which may be adjusted from time to time by the City as set forth in Section 5.2.5 below.
5.2.4.2 Master Developer shall dedicate the 12.9 acre minor community park land located within the Project Area to the City per the terms of Section 5.5.6 of the Specific Plan4. In exchange for dedication of this land to the City, the City has 3 The Adopted Update of Development Impact Fees for the City of Chowchilla, June 13, 2005. 4 Per the City’s nexus study, the value of this land is Seven Hundred Nine Thousand Five Hundred and no/100th Dollars ($709,500) (12.9 acres multiplied by $55,000 per acre = $709,500). _____ City _____ Master Developer Page 18 of 50
agreed to reduce the minor community park citywide development impact fees from $584.58 to $237.13 per residential unit (the “Minor Community Park Fee”)5.
5.2.4.3 According to the General Plan, it is the City’s goal to have all neighborhood parks constructed by the builder developing the surrounding neighborhood and then dedicated to the City. As set forth in Section 5.5.6 of the Specific Plan, Master Developer has agreed to the construction of all neighborhood parks within the Project Area by either Master Developer or the Owners. The City will therefore not have to spend any of the citywide development impact fees collected for neighborhood parks on the acquisition of land for or construction of any neighborhood parks within the Project Area. In consideration of this obligation being assumed by Master Developer on behalf of itself and the Owners, the City has agreed and does hereby agree to waive all neighborhood park citywide development impact fees.
5.2.5 Increases and Decreases to the RC Development Impact Fees. Subject to the terms and conditions set forth in Section 5.2.3 above and in this Section 5.2.5, any and all increases or decreases to the citywide development impact fees adopted by the City shall apply to the Project Area in the same percentage increase or decrease applied to all new development in the City with the exception of the East Robertson Blvd Improvement Fee, the RC Storm Drain Impact Fee, and the RC Parks and Recreation Impact Fee which can only be modified with the consent of Master Developer. Prior to consideration of any increases or decreases to the citywide development impact fees, the City shall provide written notice thereof to Master Developer and all Owners. Upon adoption by the City of any such increases or decreases to the citywide development impact fees, the RC Development Impact Fees set forth in Section 5.2 above shall be updated by the same percentage increase or decrease to the citywide development impact fees, evidence of which shall be provided via an amendment to this Agreement signed by both Parties, the sole purpose of which shall be to substitute the table set forth in Section 5.2 above with the updated RC Development Impact Fees. In the event the City changes the names or purposes of the citywide development impact fees or reorganizes the citywide development impact fees in effect as of the Effective Date, the same shall apply to the RC Development Impact Fees, subject to the following: (i) the Project Area shall not be subject to any new or modified storm drain impact fees, and (ii) the Project Area shall not be subject to any new or modified fees which would generally fall within the category of the storm drain impact fees. The Project Area shall not be subject to new development impact fees outside of the categories set forth in Section 5.2 which are adopted by the City during the Term of this Agreement.
5.2.5.1 On February 9, 2021, the Council adopted Resolution #12-21, which reduced all residential development impact fees from July 1, 2021, through June 5 The Minor Community Park Fee was established by multiplying the total number of residential units that can be built within the project area (2,042) by the current minor community park fee ($584.58), then subtracting the value of the land being dedicated to the City ($709,500) and then dividing that sum by the total number of residential units that can be built within the Project Area (2,042 x 584.58 – 709,000) / 2,042 = $237.13. _____ City _____ Master Developer Page 19 of 50
30, 2023, subject to extension by Council. Pursuant to the terms of Resolution #12-21, the residential development impact fees for all residential development within Rancho Calera, which is in Zone 1, is $11,066.65 per residential unit. This sum does not reflect a reduction in the storm drain impact fee, required by Section
5.2.3 above, or the parks and recreation impact fee, required by Section 5.2.4 above. For the reasons set forth in this Agreement, the storm drain impact fee has been removed and the parks and recreation impact fee has been reduced, but the East Robertson Blvd Improvement Fee has not been reduced because the cost to construct the East Robertson Blvd Improvements is a set cost. In summary, from July 1, 2021, through June 30, 2023, the RC Development Impact Fees for all residential development with the Project Area shall be:
The terms of this Section 5.2.5.1 shall supersede the residential RC Development Impact Fees set forth in Section 5.2 above for the term set forth in Resolution #12- 21, payment of which remain subject to Section 5.2.1 above.
5.2.5.2 As of the Effective Date of this Agreement, the City is processing those studies and documents required to update the citywide development impact fees for both residential and commercial development. It is believed that through this process, the citywide development impact fees will be reduced as the result of changes to public work projects which were contemplated in the existing nexus study. In completing this process, the City shall take into account the terms set forth in Section 5.2.5 above relating to those development impact fees which are 6 For the reasons set forth above, the temporary RC Citywide Traffic Impact Fee has been reduced to $2,344.80 per residential unit.
RC Development Impact Fees Residential
(per unit)
RC Citywide Traffic Impact Fee $2,344.806
East Robertson Blvd Improvement Fee
City East Robertson Blvd. Impact Fee $1,358.00
RC East Robertson Blvd. Beautification
Impact Fee $5,863.00
RC Signalization Impact Fee $119.21
RC Sewer Treatment Impact Fee $3,093.47
RC Water Supply Impact Fee $1,126.53
RC General City Facilities Impact Fee $480.62
RC Fire Facilities Impact Fee $875.51
RC Police Facilities Impact Fee $472.74
RC Storm Drain Impact Fee $0
RC Parks and Recreation Impact Fee $331.44
Total RC Development Impact Fees: $16,065.31
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not applicable to or reduced for the Project. Upon completion of the process set forth in this Section 5.2.5.2, the Parties shall comply with the terms set forth in Section 5.2.5 above regarding amendment to this Agreement to insert a new RC Development Impact Fee table in Section 5.2 reflecting those citywide development impact fees which are applicable to the Project, including the East Robertson Blvd Improvement Fee.
5.2.6 Use and Availability of the RC Development Impact Fees. Except as set forth in this Agreement, the City shall have the right to use the RC Development Impact Fees for those purposes identified by the City in its nexus study, for those obligations set forth in the Development Approvals, capital facilities improvement plans, a specific plan or a general plan, or as otherwise permitted by law. The RC Development Impact Fees shall be available to the City for use upon payment thereof by Master Developer or an Owner in accordance with Section 5.2.1 above.
5.3 Right to Object. Notwithstanding anything to the contrary set forth herein, to the extent otherwise allowed by law, Master Developer and the Owners shall have the right to object to or comment on any new or revised citywide development impact fees which are proposed by Council during the Term of this Agreement.
5.4 Miscellaneous Fees.
5.4.1 Processing Fees. The City may charge processing fees for land use approvals, building permits, and other similar permits and entitlements which fees are in force and effect on a citywide basis at the time an application is submitted for those permits, except as provided to the contrary in this Agreement. Such fees shall not be increased after submission of the application unless justified by an increase in the estimated reasonable cost to the City for performing the work for which the particular fee is paid and limited to an amount which will compensate the City for the estimated reasonable cost and increases incurred, as permitted pursuant to California Government Code §66104, et seq.
5.4.2 Additional Fees. In addition to payment of the RC Development Impact Fees set forth above, the City may collect additional fees or exactions which meet one of the following definitions: (1) they are directly imposed by another governmental agency and the City is required to collect the additional fees; or (2) they are uniformly imposed on all comparable residential or commercial development projects within the City and are required solely to provide capital infrastructure facilities or improvements needed for health and safety reasons as a direct result of the Project and are otherwise consistent with California Government Code §66000 et seq., the General Plan, and the Specific Plan.
5.4.3 New Citywide Taxes, Liens, and Assessments. Except for any agreement for special taxes, liens and assessments between the City and Master Developer entered into prior to the Effective Date, or any agreement for special taxes, liens, and assessments contemplated by this Agreement (see Section 7) or the Development Approvals, the City shall not subject the Project Area, or any part thereof, to any special taxes, liens or assessments not applicable to the residents of the City as a whole unless approved in accordance with applicable State law by Master Developer and the affected Owners or _____ City _____ Master Developer Page 21 of 50
imposed by a vote of Master Developer and the Owners or electors in the area to be taxed or assessed. The City shall give Master Developer and the Owners not less than sixty (60) days’ notice of any City proposal to impose such a special tax, lien or assessment, and an opportunity to be heard.
5.4.4 Construction of Public Improvements. Except as set forth in this Agreement, no fees shall be due in connection with the construction of any structure or improvements built on property to be donated or dedicated to the City or any other public or quasipublic entity regardless of who builds any such structure.
5.4.5 Administrative Fee. In consideration of the services being provided to Master Developer in connection with collection and disbursement of the East Robertson Blvd Improvement Fee, Master Developer shall pay the City a one percent (1%) administrative fee based on the total East Robertson Blvd Improvement Fees paid to the City during each calendar year (the “Administrative Fee”) until such time as the Project is fully constructed. On or before January 15th of each year following which any East Robertson Blvd Improvement Fees are paid to the City, the City shall deliver to Master Developer notice of the total East Robertson Blvd Improvement Fees paid to the City during the prior calendar year. Within sixty (60) days of receipt of such notice, Master Developer shall deliver to the City funds equal to one percent (1%) of the total East Robertson Blvd Improvement Fees paid to the City during the prior calendar year.
6. PUBLIC IMPROVEMENTS AND DEDICATIONS.
6.1 Project Development and Construction of Public Improvements. Master Developer and the Owners shall construct and develop certain public infrastructure improvements within and adjacent to the Project Area in conjunction with the various phases of construction and Development activity on the Project Area, all as more particularly set forth in the Specific Plan.
6.2 Phasing. The Project has been designed generally for public infrastructure construction concurrent with residential neighborhood construction and commercial center construction. The phasing, timing, and rate of Development, however, depend on numerous factors that are not within the control of Master Developer or the City. In Pardee Construction Co. v. City of Camarillo (1984) 37 Cal. 3d 465, the California Supreme Court held that a construction company was not exempt from a city’s growth control ordinance notwithstanding that the construction company and the city had entered into a consent judgment (tantamount to a contract under California law) establishing the company’s vested rights to develop its property in accordance with the zoning.
The California Supreme Court reached this result on the basis that the consent judgment failed to address the timing of development. It is the intent of the parties to this Agreement to avoid the result of the Pardee case by acknowledging and providing in this Agreement that Master Developer shall have the Vested right to develop the Project Area in accordance with the terms of this Agreement and those set forth in the Specific Plan relating to construction of public improvements in such order and at such rate and at such time as Master Developer deems appropriate within the exercise of Master Developer’s sole subjective business judgment, notwithstanding the adoption of an initiative after the Effective Date by the City’s electorate to the contrary or any City moratorium or other similar limitation. _____ City _____ Master Developer Page 22 of 50
6.3 Construction of the East Robertson Blvd Improvements. In exchange for the terms and conditions set forth in this Agreement, Master Developer has agreed, and does hereby agree to construct the East Robertson Blvd Improvements, more particularly defined in Section 5.2.2.1 below, according to the phasing plan more particularly set forth in Section 6.3.1 below, using the East Robertson Blvd Improvement Fee for construction of the East Robertson Blvd Improvements, pursuant to the terms and conditions of this Section 6.3.
6.3.1 Phased Construction. The East Robertson Blvd Improvements shall be constructed, including undergrounding of the PG&E power line, by Master Developer in accordance with the Rancho Calera Specific Plan Amendment Transportation Impact Analysis, a copy of which is on file with the City Clerk, the East Robertson Blvd Phasing Plan, attached hereto as Schedule 6.3.1 and incorporated herein, and as further set forth herein. Master Developer shall be entitled to construct up to 215 dwelling units anywhere within the Project Area prior to constructing any East Robertson Blvd Improvements.
6.3.1.1 Prior to issuance of the 216th building permit anywhere in the Project Area, Master Developer shall construct the East Robertson Blvd Improvements shown on Schedule 5.2.2.1 within that area of East Robertson Blvd identified as East Robertson Blvd – Phase 1 on Schedule 6.3.1.
6.3.1.2 Prior to issuance of the 1,051st building permit anywhere in the Project Area, Master Developer shall construct the East Robertson Blvd Improvements shown on Schedule 5.2.2.1 within that area of East Robertson Blvd identified as East Robertson Blvd – Phase 2 on Schedule 6.3.1.
6.3.1.3 Prior to issuance of the 1,211th building permit anywhere within the Project Area, Master Developer shall construct the East Robertson Blvd Improvements shown on Schedule 5.2.2.1 within that area of East Robertson Blvd identified as East Robertson Blvd – Phase 3 on Schedule 6.3.1.
6.3.1.4 The City shall be entitled to withhold certificates of occupancy for any dwelling units in excess of those identified for each Phase of East Robertson Blvd Improvements until the applicable East Robertson Blvd Improvements are constructed and accepted by the City. For example, the City may withhold a building permit for the (a) 216th and each additional dwelling unit until the East Robertson Blvd Improvements are constructed within that area of East Robertson Blvd identified as East Robertson Blvd - Phase 1, (b) 1,051st and each additional dwelling unit until the East Robertson Blvd Improvements are constructed within that area of East Robertson Blvd identified as East Robertson Blvd - Phase 2, (c) 1,211th and each additional dwelling unit until the East Robertson Blvd Improvements are constructed within that area of East Robertson Blvd identified as East Robertson Blvd - Phase 3.
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6.3.1.5 Notwithstanding anything to the contrary set forth in this Section 6.3 or elsewhere in this Agreement, Master Developer or the Owners may construct any of the East Robertson Blvd Improvements in advance of the obligation to do so.
6.3.2 Funding and Construction of the East Robertson Blvd Improvements. The East Robertson Blvd Improvement Fee shall be used for the sole purpose of constructing the East Robertson Blvd Improvements. Any shortfall in the cost to construct the East Robertson Blvd Improvements and the funds collected for the same through payment of the East Robertson Blvd Improvement Fee shall be the responsibility of Master Developer.
6.3.2.1 No less than once every ninety (90) days beginning on the Effective Date, the City and Master Developer shall discuss the status of development within the Project Area, including without limitation Master Developer’s timeline with regard to construction of the East Robertson Blvd Improvements (the “Project Status Updates”).
6.3.2.2 Design and Construction of the East Robertson Blvd Improvements shall be consistent with the design and construction identified on Schedule 5.2.2.1 and Schedule 6.3.1, and in the Preliminary Opinion of Probably Construction Cost, East Robertson Blvd, prepared by HMH Engineers, dated April 22, 2021 (the “Engineer’s Estimate”). The Engineer’s Estimate shall be updated annually on or before June 1st of each year by HMH Engineers, unless the parties agree otherwise, the cost of which shall be borne by Master Developer. If the costs identified in the Engineer’s Estimate have changed by more than ten percent (10%), Master Developer may request that the East Robertson Blvd Improvement Fee be modified to reflect the same, the cost of doing so to be paid by Master Developer.
6.3.2.3 Concurrent with submitting the necessary applications, drawings, and plans and specifications for the construction of each phase of the East Robertson Blvd Improvements (each an “East Robertson Blvd Plan Set”), Master Developer (i) shall submit a copy of the construction contract for buildout of the phase identified on the applications which shall include the total costs and expenses related to design, engineering, construction, and construction management of that phase of the East Robertson Blvd Improvements, the total of which shall be substantially consistent with the Engineer’s Estimate, as adjusted pursuant to Section 6.3.2.2 above (each an “East Robertson Blvd Improvements Contract Sum”), and (ii) may, at its option, submit the contact information for the entity which will serve as the construction manager for such phase of construction (the “Construction Manager”). Unless indicated otherwise in the notice to the City, the Construction Manager shall have the authority to act on behalf of Master Developer in regard to all matters related to construction of the phase of the East Robertson Blvd Improvements identified on the notice. Within twenty (20) days of receipt of the notice containing the East Robertson Blvd Improvements Contract Sum, the City shall notify Master Developer in writing whether it approves or disapproves of the East Robertson Blvd Improvements Contract Sum. _____ City _____ Master Developer Page 24 of 50
In the event the City disapproves of the East Robertson Blvd Improvements Contract Sum, the notice to Master Developer shall include detailed information regarding what precisely has been disapproved, a rationale for the same, and a recommended alternative. Within ten (10) days of the date Master Developer receives the City’s notice, the City and Master Developer shall meet and reach an agreement regarding the disapproved East Robertson Blvd Improvements Contract Sum.
6.3.2.4 The City shall, to the extent possible, expedite review and approval of each East Robertson Blvd Plan Set. In the event the City determines that it is not able to expedite review and approval of the East Robertson Blvd Plan Set, Master Developer may request that the City retain the services of an outside planner/engineer to review and approve the East Robertson Blvd Plan Set, and the City shall use its best efforts to comply with Master Developer’s request provided Master Developer agrees to pay all costs and expenses related to the City retaining the services of such person.
6.3.2.5 No less than once every sixty (60) days once construction of any phase of the East Robertson Blvd Improvements has commenced, Master Developer or the Construction Manager shall submit to the City copies of all invoices, bills, and other documents relating to construction of the applicable phase of the East Robertson Blvd Improvements received by Master Developer or the Construction Manager for the preceding sixty (60) day period (each an “Accounting”). Unless objected to in writing within ten (10) days of delivery of the Accounting to the City, the City shall process the Accounting for payment to Master Developer using those funds available in the East Robertson Blvd Improvement Fees. In the event the City objects to any item on an Accounting, the parties shall meet and reach an agreement regarding the item objected to by the City. Master Developer shall use all funds received from the City in connection with each Accounting for the sole purpose of paying those costs and expenses related to construction of the East Robertson Blvd Improvements. Subject to the terms set forth herein, in the event there are insufficient East Robertson Blvd Improvements Fees to cover the costs identified in any Accounting, Master Developer shall be responsible for payment of those amounts due for construction of the East Robertson Blvd Improvements identified in the Accounting. The City and Master Developer shall each keep an accounting of those amounts paid by Master Developer for the East Robertson Blvd Improvements which were not available to Master Developer when the East Robertson Blvd Improvements were constructed (the “Master Developer Contribution”), the total of which shall be due and delivered to Master Developer following conclusion of each phase of construction of the East Robertson Blvd Improvements from the East Robertson Blvd Improvement Fees as the same are collected by the City until the total Master Developer Contribution has been paid to Master Developer.
6.3.2.6 Upon completion of the East Robertson Blvd Improvements for each phase, the City shall accept the same and Master Developer shall obtain and _____ City _____ Master Developer Page 25 of 50
deliver to the City, Unconditional Lien Releases from each contractor, subcontractor, or other party involved with the construction of the East Robertson Blvd Improvements.
6.3.2.7 Upon completion of the East Robertson Blvd Improvements and provided Master Developer has been paid the total Master Developer Contribution, any funds remaining in the East Robertson Blvd Improvement Fee account shall be released to the City (the “East Robertson Blvd Improvement Fee Remainder”).
The East Robertson Blvd Improvement Fee Remainder shall be allocated first to any public improvements within the Project Area which have not been constructed and for which the City is responsible per Section 5.5 of the Specific Plan. After all public improvements within the Project Area for which the City is responsible have been constructed, the East Robertson Blvd Improvement Fee Remainder shall be available to the City for any public improvements.
6.4 Public Improvements to be Constructed by Master Developer or Owners and the City.
Master Developer or the Owners shall be responsible for the construction of those public infrastructure improvements set forth in Section 5.5 and Table 5-1 of the Specific Plan which are identified as being the obligation of either Master Developer or the Owners (identified as the Builders in the Specific Plan) using those funding sources set forth in Section 5.5 and Table 5-1 of the Specific Plan, a copy of which is attached hereto as Schedule 6.4 and incorporated herein by this reference, and the City shall be responsible for the construction of those public infrastructure improvements set forth in Section 5.5 and Table 5-1 of the Specific Plan which are identified as being the obligation of the City using those funding sources set forth in Section 5.5 and Table 5- 1 of the Specific Plan, a copy of which is attached hereto as Schedule 6.4 and incorporated herein by this reference. With regard to the timing of construction of public infrastructure improvements which are the responsibility of the City, the Master Developer and the Owners shall only be responsible for providing the road and utility infrastructure improvements to the edge of the property to be developed by the City when the adjacent residential neighborhood or commercial use is developed. In the event the City elects to develop one or more of the public improvements for which it is responsible per Section 5.5 and Table 5-1 of the Specific Plan prior to the road and utility infrastructure improvements being available at the edge of the property to be developed by the City, the City shall, at its sole cost and expense, be responsible for installing all infrastructure improvements necessary to proceed with development of the public improvement. At the election of Master Developer, the improvement plans for the road and utility infrastructure improvements the City elects to construct pursuant to this Section 6.4 may be prepared by Master Developer in accordance with the Specific Plan. If the City elects to install any infrastructure improvements in connection with development of those public improvements for which the City is responsible per Section 5.5 and Table 5-1 of the Specific Plan, as shown in Schedule 6.4, and the road and utility infrastructure improvements installed by the City serve the Project Area, Master Developer shall enter into a reimbursement agreement with the City whereby Master Developer shall reimburse the City for those road an infrastructure improvements installed by the City which serve the Project Area at that time that the residential or commercial uses adjacent to the road and utility infrastructure improvements are developed. _____ City _____ Master Developer Page 26 of 50
Master Developer shall not be responsible for any costs expended by the City which are associated with installing infrastructure improvements which do not benefit the Project Area.
For example, if Master Developer grants the City an easement for a temporary access road to the Public Safety Facility and the City installs a temporary access road over such easement area for use until such time as Millerton Lane is constructed, the cost of installing the temporary access road will not be reimbursed by Master Developer.
6.4.1 Timing of Construction of Public Improvements. With the exception of the phased construction of the East Robertson Blvd Improvements set forth above, generally, construction of the public improvements by Master Developer or the Owners shall occur concurrent with development of the adjacent residential neighborhood or commercial use; nothing in this Agreement, the Specific Plan, or the Development Approvals, however, shall prevent Master Developer or the Owners from constructing one or more of the public improvements for which Master Developer or the Owners are responsible ahead of construction of other public improvements for which Master Developer or the Owners are responsible (for example, one or more roads or parks may be constructed ahead of development of the adjacent residential neighborhoods to provide access to another residential neighborhood). The City may elect to proceed with construction of the public improvements it is responsible for when the demand arises.
6.4.2 Construction Standards. All public improvements shall be designed and constructed in accordance with the Development Approvals, the Specific Plan, and this Agreement using the funding sources identified in Table 5-1 of the Specific Plan. In no event shall Section 5.5 or Table 5-1 of the Specific Plan be amended without the express written consent of both Master Developer and the City.
6.4.3 Water Tank and Water Well. The Parties have agreed and do hereby agree that the Water Tank and Water Well identified in Section 5.5 and Table 5-1 of the Specific Plan, as well as Schedule 6.4 attached hereto, are needed for development of Rancho Calera and that the project area cannot be fully served without a new water tank and water well being completed. As of the Effective Date, however, it is unclear when the water tank and water well will be needed, where the facilities will be located (whether within or outside the boundaries of Rancho Calera, or both, or the precise location(s) required for the water tank and water well), the cost of said facilities, or how the facilities should be funded and constructed. The City is preparing a Water Master Plan that will be used, to the extent possible, to help resolve these outstanding issues for the water tank and water well. Upon completion of the Water Master Plan, the Parties shall meet and reach an agreement regarding construction and financing of the Water Tank and Water Well, the terms of which shall automatically be incorporated into this Agreement and the Specific Plan. Master Developer understands and agrees that the City may withhold approval of requests for Subsequent Development Approvals until such time as an agreement is reached regarding construction and financing of the Water Tank and Well. Completion of the water tank and water well will be the responsibility of the Developer, directly or indirectly, and Developer agrees and acknowledges that the City may withhold approval or deny development approvals and necessary entitlements if the then-current City water system cannot support the proposed development. Such determinations may be required _____ City _____ Master Developer Page 27 of 50
to be made on a proposal-by-proposal basis until the water tank and water well are completed and operational. Financing and construction of the water tank and water well, including location, site selection, site acquisition, funding, reimbursement, and physical construction, shall be negotiated by the Parties. The Parties agree to reasonably cooperate with one another in order to make effective the intent of this Development Agreement and the Specific Plan.
6.5 Construction of Public Improvements for the Benefit of Future Land Development.
Neither Master Developer nor any Owners shall be required to install public improvements or increase the size of any public improvements that are intended to benefit the property to the north and/or east of the Project Area (the “Future Land Development Area”) unless funding for the same from the City or another source is made available to Master Developer or the Owners prior to the work being completed.
6.6 Dedication/Donation. All public improvements constructed by Master Developer and/or the Owners shall be dedicated to the City as set forth in Section 5.5 of the Specific Plan and this Section 6.6. Except as set forth elsewhere in this Agreement, no consideration shall be due to Master Developer and/or the Owners for any public improvements or land underlying such public improvements dedicated, donated, or conveyed to the City pursuant to Section 5.5 of the Specific Plan and this Section 6.6. Upon completion of construction of each public utility improvement, the same shall be conveyed by Master Developer and/or the Owners to the respective public utility providers.
6.6.1 Extension of South Lake Tahoe Drive and N. Fig Tree Blvd. That portion of the future extension of South Lake Tahoe Drive which is north of North Lake Tahoe Drive (the “South Lake Tahoe Drive Extension”) shall be dedicated to the City concurrent with dedication of the Outlot L Neighborhood Park to the City, the location of which is more particularly shown on Tentative Subdivision Map No. 16-0124, and that portion of the future extension of N. Fig Tree Blvd that is north of North Lake Tahoe Drive (the “N. Fig Tree Blvd Extension”) shall be dedicated to the City concurrent with dedication of the Outlot K Neighborhood Park to the City, the location of which is more particularly shown on Tentative Subdivision Map No. 16-0124. Upon dedication, use of the South Lake Tahoe Drive Extension and the N. Fig Tree Blvd Extension shall be subject to the discretion of the City.
6.6.2 Half Construction of South Lake Tahoe Drive and N. Fig Tree Blvd. Master Developer shall only be responsible for construction of the outermost two (2) lanes and all adjacent curb, bike lanes, sidewalk, and landscape improvements within that portion of South Lake Tahoe Drive between Genoa Lake Way and North Lake Tahoe Drive and that portion of N. Fig Tree Blvd between South Lake Take Drive and North Lake Tahoe Drive.
The land needed for the innermost two lanes and medians within that portion of South Lake Tahoe Drive between Genoa Lake Way and North Lake Tahoe Drive and that portion of N. Fig Tree Blvd between South Lake Take Drive and North Lake Tahoe Drive shall be donated to City for future build-out and construction.
6.6.3 Minor Community Park, Public Safety Facility, Well and Water Tank, and Stormwater Retention Areas. The land for the Minor Community Park, the Public Safety _____ City _____ Master Developer Page 28 of 50
Facility, and the Well and Water Tank shall be dedicated by Master Developer to the City upon written request from the City. The land underlying each of the Stormwater Retention Areas may be dedicated to the City by Master Developer in phases as each Stormwater Retention Area is improved by Master Developer.
6.7 Ownership and Maintenance of Private and Public Facilities and Infrastructure.
6.7.1 Private Property Improvements. Master Developer, an Owner, an Owners Association, or a group of individuals governed by contract shall own and maintain the private property and improvements, if any, located within the Project Area which the respective entity constructed or became responsible therefore by means of a separate written agreement. The agreement entered into by the parties shall require that the private property be maintained to no less than City standards. The City shall have the right, but not the obligation, to review any such agreements.
6.7.2 Public Property Improvements. Upon acceptance of property and each public improvement donated or dedicated to the City, all as more particularly set forth in Section
5.5 of the Specific Plan, the Master Developer shall have no further obligation for the maintenance of such improvements. Until such time as the City accepts the dedicated or donated property and each public improvement, Master Developer or the Owner shall maintain and operate the same to no less than City standards.
6.8 School District Obligations (Informational only). Pursuant to the terms of that certain Chowchilla School District Amended Supplemental Development Fee Agreement, as amended (the “Elementary School Fee Agreement”), entered into between Master Developer and Chowchilla School District (the “Elementary School District”), and that certain Chowchilla Union High School District Development Fee Agreement (the “High School Fee Agreement”), entered into between Master Developer and Chowchilla Union High School District (the “High School District”), a fifteen (15) acre parcel was donated to the Elementary School District upon which an elementary school was constructed by the Elementary School District (Ronald Reagan Elementary School), and a ten (10) acre parcel was acquired by Master Developer and subsequently transferred to the High School District. Subject to the terms and conditions set forth in the Elementary School Fee Agreement, a ten (10) acre parcel within the Project Area may be donated to the Elementary School District upon which a second elementary school may be constructed.
Construction of the second elementary school, as well as any needed expansion of the middle school and high school, will be financed by either the Elementary School District or the High School District. The terms and conditions related to connecting the second elementary school to public utilities are addressed in the Elementary School Fee Agreement. Ongoing funding for the operation and maintenance of the elementary school located within the Project Area, as well as all other elementary, middle, and high schools will be provided by the Elementary School District and High School District through their normal financing sources, such as State payments and local bonds. In addition to the school site donated to the Elementary School District and the property transferred to the High School District, both the Elementary School Fee Agreement and the High School Fee Agreement provide for the payment of mitigation fees in excess of those required by state law to the Elementary School District and the High School District, the terms of which are more particularly set forth in the Elementary School Fee Agreement and the High School Fee _____ City _____ Master Developer Page 29 of 50
Agreement, copies of which are available from the Elementary School District and the High School District respectively.
7. FINANCING AND PROVISION OF PUBLIC IMPROVEMENTS.
7.1 2006 Community Facilities District. The Project Area is presently encumbered by the 2006 CFD which was formed to provide funding for certain public utility and infrastructure improvements, including among other things, a new wastewater treatment facility, public water system improvements, and interchange improvements (the “2006 CFD Improvements”). In 2007, the City authorized the issuance of a single bond series in the amount of Eight Million Six Hundred Fifteen Thousand and no/100th Dollars ($8,615,000.00) (the “First Bond Series”), the proceeds of which have been used to fund some of the identified improvements.
7.1.1 Refinancing/New Bond Issue. In the event the City elects to refinance the 2006 CFD or proceed with an additional bond issue under the 2006 CFD, the City and Master Developer do hereby agree to meet and work towards an agreement regarding the same.
7.1.2 Amendment to the Special Tax for Services. In addition to providing funding for the construction of the 2006 CFD Improvements, the 2006 CFD includes a Special Tax for Services that encumbers all of the residential property within the boundaries of the 2006 CFD and exists in perpetuity. The purpose of the Special Tax for Services is to provide ongoing funding for certain public services, including without limitation, the City Police Department, the City Fire Department, and stormwater system and park maintenance.
Residents who own property outside of property encumbered by the 2006 CFD do not pay the Special Tax for Services. Master Developer has requested and the City has agreed to assess the Special Tax for Services required to meet the needs of the Project Area and those other properties encumbered by the Special Tax for Services, including consideration of without limitation (i) revising the trigger date for escalation of the Special Tax for Services, (ii) modifying the escalation factor, and/or (iii) capping the Special Tax for Services. Master Developer and the City shall work diligently towards a resolution of these issues, as well as determining whether additional funding may be necessary for maintenance of certain public improvements within the Project Area.
7.2 Formation of Financing District. City acknowledges that the Specific Plan contemplates the use of LSDF to finance the design and construction of certain public improvements. The City is not, however, obligated to form such LSDF districts as a result of its approval of the Specific Plan. In addition, the City may consider the formation of other public financing districts which will include the Project Area, or a portion thereof, for the purpose of funding other public facilities more particularly described in the Specific Plan, with the expectation that the public financing districts will issue, from time to time, bonds to provide sufficient funds to construct the public facilities so financed.
7.2.1 Consideration Limited by Policy. Upon the request of Master Developer or an Owner, with the consent of Master Developer, the parties shall cooperate in exploring the use of LSDF districts or other means for financing development within the Project Area, subject to then-existing City Debt Financing Policies. _____ City _____ Master Developer Page 30 of 50
7.2.2 City Not Required to Form District. Notwithstanding the foregoing, it is acknowledged by the parties that nothing contained in this Agreement shall be construed as requiring the City or the Council to form a LSDF district or cause a public financing district to issue bonds.
7.2.3 Master Developer/Owner Vote. Master Developer or an Owner, with the consent of Master Developer, shall cooperate with the City in the formation and establishment of one or more LSDF district(s), as contemplated in the Specific Plan, provided that nothing herein shall prevent Master Developer or an Owner, in its sole discretion, from voting against the formation of any public financing district.
7.2.4 Future Overlapping Indebtedness. In addition to the 2006 CFD, portions of the Project Area are encumbered by the 2003 RD and the entire Project Area is encumbered by that certain Chowchilla Water District Improvement District No. 1 (the “CWD Assessment District”). The 2003 RD was formed for the purpose of refinancing certain bonds originally issued in 1994 for the development of Greenhills Estates, a portion of which is included within the Project Area. The CWD Assessment District was formed pursuant to an agreement between Master Developer and Chowchilla Water District (“CWD”) whereby CWD agreed to remove certain physical structures from the Project Area in exchange for Master Developer agreeing to build new structures and encumber the Project Area with an assessment in perpetuity intended to compensate CWD for the loss of approximately 3,000 acre feet of water per year, all of which is believed to now be supplying the aquifer located under and in the vicinity of the Project Area and benefitting the City. The parties hereby agree that the 2003 RD and CWD Assessment District shall be taken into consideration if and when any future financing districts which would encumber the Project Area are considered by Master Developer and the City.
8. REVIEW FOR COMPLIANCE.
8.1 Annual Review. Throughout the Term of this Agreement and at least every twelve (12) months (the “Annual Review”), the City Administrator shall review the extent of good faith compliance by Master Developer and the Owners with the terms of this Agreement, including without limitation construction of the RC Development Obligations set forth in Section 6.3 and Section 6.4 above. The review shall be limited in scope to compliance with the terms of this Agreement pursuant to California Government Code §65865.1.
8.1.1 Notice. At least twenty (20) days prior to the Annual Review, the City Administrator shall make available to Master Developer and the Owners a copy of any staff reports and documents to be used or relied upon in conducting the review and, to the extent practical, related documents concerned Master Developer’s and the Owners’ compliance with this Agreement. Master Developer and the Owners shall be permitted an opportunity to respond to the City Administrator evaluation of compliance with this Agreement, either orally at a public hearing or in a written statement.
8.1.2 Burden of Proof. The burden of proof by substantial evidence of compliance is upon Master Developer and the Owners in accordance with California Government Code §65865.1 and the applicable City ordinance.
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8.1.3 No Additional Fees, Conditions, or Development Exactions. The City shall not impose any conditions, fees, or other Development Exactions as a condition to a finding of good faith compliance with the terms of this Agreement.
8.2 Special Review. The Council may, for cause, order a special review of compliance with this Agreement. The City Administrator shall conduct such special review. The special review may be used to replace the next Annual Review, in the sole discretion of the City Administrator.
8.2.1 Procedure Upon Special Review. Upon receipt of written notice from the City Administrator that the Council has ordered a special review of compliance with this Agreement, Master Developer and the Owners shall provide evidence as determined necessary by the City Administrator to demonstrate good faith compliance with the provisions of this Agreement. The burden of proof by substantial evidence of compliance is upon Master Developer and the Owners in accordance with California Government Code §65865.1 and the applicable City ordinance. The City shall make available to Master Developer and the Owners a copy of all public staff reports, documents and related exhibits concerning the performance of Master Developer and the Owners under this Agreement at least twenty (20) days prior to such special review by the City Administrator.
8.3 Compliance Finding by City Administrator. If the City Administrator finds and determines on the basis of substantial evidence that Master Developer and the Owners have complied in good faith with the terms and conditions of this Agreement during the period under review, the review for that period is concluded.
8.4 Cancellation and Non-Compliance Finding by City Administrator. If the City Administrator finds and determines on the basis of substantial evidence that Master Developer and the Owners have not complied in good faith with the terms and conditions of this Agreement during the period under review, the City Administrator shall forward the Annual Review or special review to Council for further consideration. Prior to reaching such a decision and forwarding the decision to Council for further consideration, however, the City Administratorshall comply with the terms set forth in Article 9, including without limitation, delivery to Master Developer and the Owners of a Notice of Agreement Default. Master Developer and the Owners shall then be entitled to the cure periods set forth in Section 9.1 or such other cure period as is agreed upon between the parties. If Master Developer and the Owners fail to cure the alleged violation of this Agreement consistent with Section 9.1, and provided the applicable cure periods have expired, the City Administrator shall forward the notice of Non-Compliance to Council for further consideration.
8.5 Non-Compliance Finding by Council. If as a result of an Annual Review or special review which resulted in a Non-Compliance Finding by the City Administrator, the Council finds and determines on the basis of substantial evidence that Master Developer and the Owners have not complied in good faith with the terms and conditions of this Agreement, the City, by action of the Council, may terminate or modify this Agreement, written notice whereof shall be delivered to Master Developers and the Owners within three (3) days of the Non-Compliance Finding. The decision of the Council is final. Master Developer and the Owners shall not be required to appeal such decision in order to exhaust its (their) administrative remedies. _____ City _____ Master Developer Page 32 of 50
8.6 Deemed Approval. In the event the City fails to either (1) hold the annual review meeting or (2) notify Master Developer and the Owners in writing (following the scheduled date of the review meeting) of the City’s determination as to compliance or noncompliance with the terms of this Agreement, and such failure remains uncured as of December 31st of the same year, such failure shall be deemed an approval by the City of the good faith compliance with the terms of this Agreement by Master Developer and the Owners.
8.7 Certificate of Agreement Compliance. At the conclusion of an Annual Review or special review, or as requested by Master Developer and the Owner(s) throughout the Term of this Agreement, and assuming that Master Developer and the Owner(s) are found to be in compliance with this Agreement, City shall issue a Certificate of Agreement Compliance (“Certificate”) to Master Developer and the Owner(s) stating that after the most recent Annual Review or special review and based upon the information made known to the City Administrator and the Council (1) this Agreement remains in effect; and (2) Master Developer and the Owner(s) are not in default. The Certificate shall be in recordable form, shall contain information intended to communicate constructive record notice of the finding of compliance, shall state whether the Certificate is issued after an Annual Review or special review and shall state the anticipated date of commencement of the next Annual Review. Master Developer and the Owner(s) may record the Certificate with the County Recorder.
9. DEFAULT AND REMEDIES.
9.1 Default by Master Developer/Owner(s) or the City. Subject to extensions of time by mutual consent in writing or as provided herein, failure or delay by either party to perform any term or provision of this Agreement shall constitute a default. In the event of an alleged default or breach of any terms or conditions of this Agreement, the party alleging such default or breach shall give the other party not less than thirty (30) days’ notice in writing specifying the nature of the alleged default and the manner in which said default may be satisfactorily cured (the “Notice of Agreement Default”); provided, however, if the alleged default stated in the Notice of Agreement Default can be corrected, but not reasonably within such thirty (30) day period, the non-defaulting party shall not unreasonably withhold its consent to an extension of such time, not to exceed one hundred eighty (180) days, if corrective action is instituted by the defaulting party within the thirty (30) day period and diligently pursued until the failure is corrected. During any such thirty (30) day period, subject to extension up to one hundred eighty (180) days as provided herein, the party charged shall not be considered in default for purposes of termination or institution of legal proceedings. Any extension of time beyond one hundred eighty (180) days for a default by Master Developer or the Owners of the Project Area requires the consent of the Council after a noticed public hearing. Default may be enforced against only the applicable defaulting party which, in the case of Master Developer or the Owners of the Project Area, may be less than all of the Owners of the Project Area.
9.1.1 Failure to Cure. After notice and expiration of the thirty (30) day period (which period is subject to extension as provided herein), the party alleging default may, at its option, institute legal proceedings pursuant to this Agreement, or give notice of intent to terminate the Agreement pursuant to California Government Code §65868 and City regulations implementing said Government Code section. Following notice of intent to _____ City _____ Master Developer Page 33 of 50
terminate, the matter shall be scheduled for consideration and reviewed in the manner set forth in California Government Code §65867 and City regulations implementing said section.
9.1.2 Council Hearing. Following consideration of the evidence presented in said review before the Council, either party alleging the default by the other party may give written notice of termination of this Agreement to the other party.
9.2 Default by City. In the event the City materially defaults under the terms of this Agreement, the City agrees that Master Developer and the Owners shall not be obligated to proceed with or complete any phase of the Project materially and directly affected by the default, nor shall resulting delays in performance by Master Developer and the Owners constitute grounds for termination or cancellation of this Agreement.
9.3 Limitation on Remedies. Following expiration of the cure periods set forth in Section 9.1 above, in addition to any other rights or remedies, either party may institute legal action to cure, correct, or remedy any default, to enforce any covenant or agreement herein, or to enjoin any threatened or attempted violation; provided, however, that neither the City, Master Developer, nor the Owners shall be liable for money damages to the non-defaulting party for breach of contract, and Master Developer, on behalf of itself and all successor Owners, and the City each covenant not to sue in contract for money damages.
9.4 Enforced Delay – Extension of Times of Performance. Performance by either party under this Agreement shall not be deemed to be in default where delays or defaults are due to war, insurrection, strikes, lockouts, riots, floods, earthquakes, fires, casualties, acts of God, acts of the public enemy, epidemics, quarantine, restrictions, freight embargoes, unusually severe weather, inability (when either party is faultless) of any contractor, subcontractor or supplier, acts of the other party, acts or the failure to act, of any public or governmental agency or entity, except the City, or any other causes beyond the control, or without the fault of the party claiming an extension of time to perform. An extension of time of any such cause shall only be for the period of the enforced delay, which period shall commence to run from the time of the cause. If, however, notice by the party claiming such extension is sent to the other party more than thirty (30) days after the commencement of the cause, the period shall commence to run only thirty (30) days prior to the giving of such notice. Times of performance under this Agreement may also be extended in writing by the joint agreement of the City and Master Developer and, to the extent applicable, the Owners. Litigation attacking the validity of this Agreement, or any permit, ordinance, or entitlement or other action of a governmental agency necessary for the development of the Project Area pursuant to this Agreement shall be deemed to create an excusable delay under this Section 9.4 only as to Master Developer and the Owner and only for the period of such litigation. Nothing in this paragraph shall be construed to extend the term of this Agreement.
10. MORTGAGE PROTECTION.
10.1 Encumbrance of Master Developer’s Interest. Master Developer and each successor Owner of all or any portion of the Project Area (hereinafter, “Mortgagor”) shall have the right to encumber and/or collaterally assign or grant a security interest in such Mortgagor’s right, title _____ City _____ Master Developer Page 34 of 50
and interest in, to and under this Agreement and the Project Area (or any portion thereof) pursuant to one or more mortgages (each a “Permitted Mortgage”), provided that (a) each such Permitted Mortgage shall be in favor of a Lender, and (b) the loan documents executed in connection with each such Permitted Mortgage shall provide that the City shall have the right to receive notices of default by the Mortgagor thereunder.
10.2 Mortgagee Protections. Provided that a mortgagee of any Permitted Mortgage (each a “Mortgagee”), provides the City with a conformed copy of each Permitted Mortgage which contains the name and address of such Mortgagee, the City hereby covenants and agrees to faithfully perform and comply with the following provisions with respect to such Permitted Mortgage:
10.2.1 No Termination. No action by Mortgagor, or the City to cancel, surrender, or materially modify the terms of this Agreement or the provisions of this Article 10 shall be binding upon a Mortgagee without written notice.
10.2.2 Notices. If the City shall give a Notice of Agreement Default to any Mortgagor hereunder, the City shall simultaneously give a copy of such Notice of Agreement Default to the Mortgagee at the address theretofore designated by it. No Notice of Agreement Default given by the City or Mortgagor shall be binding upon or affect said Mortgagee unless a copy of said Notice of Agreement Default shall be given to Mortgagee pursuant to Section 10.2.7 hereof. In the case of an assignment of such Permitted Mortgage or change of such Mortgagee, said assignee or Mortgagee, by written notice to City, may change the address to which such copies of Notices are to be sent.
10.2.3 Performance of Covenants. The Mortgagee shall have the right to perform any term, covenant, or condition and to remedy any default by Mortgagor hereunder, within the time periods specified herein, and the City shall accept such performance with the same force and effect as if furnished by Mortgagor; provided, however, that said Mortgagee shall not thereby or hereby be subrogated to the rights of the City.
10.2.4 Default by Mortgagor. In the event of a default by Mortgagor which has not been cured by Mortgagor, or as to which there is no cure period hereunder, the City agrees not to terminate this Agreement (1) unless and until the City provides written notice of such default to any Mortgagee and such Mortgagee shall have failed to cure such Default within sixty (60) days after the later of delivery of such notice or expiration of any applicable Mortgagor cure period, and (2) in the case of a default which cannot practicably be cured by the Mortgagee without taking possession of the Project Area, if the Mortgagee has delivered to the City, prior to the date on which the City shall be entitled to give notice of termination, a written instrument wherein the Mortgagee unconditionally agrees that (subject to such delays as may be incident to obtaining a relief from stay in the case of a bankruptcy/dissolution event) it will commence and diligently pursue cure of such default promptly following its obtaining possession of the Project Area (including possession by receiver) (subject to such delays as may be incident to obtaining a relief from stay in the case of a bankruptcy/dissolution event) and, upon obtaining such possession, the Mortgagee shall proceed diligently to cure such default. _____ City _____ Master Developer Page 35 of 50
10.2.4.1 The Mortgagee shall not be required to obtain possession or to continue in possession as Mortgagee of the Project Area, if and when such default shall be cured. Nothing herein shall preclude the City from exercising any of its rights or remedies with respect to any other default by Mortgagor during any period of such forbearance, but in such event the Mortgagee shall have all of its rights provided for herein.
10.2.5 Foreclosure. Foreclosure of any Permitted Mortgage, or any sale thereunder, whether by judicial proceedings or by virtue of any power contained in a Permitted Mortgage, or any conveyance from the Mortgagor to a Mortgagee or its designee through, or in lieu of, foreclosure or other appropriate proceedings in the nature thereof, shall not require the consent of the City or constitute a breach of any provision of or a default under this Agreement, and upon such foreclosure, sale or conveyance the City shall recognize the purchaser or other transferee in connection therewith as Master Developer or such successor Owner of the Project Area (or any portion thereof) hereunder provided that such purchaser or transferee assumes, subject to the terms of Section 10.2.4 above, each and all of the obligations of Master Developer or such successor Owner of the Project Area (or any portion thereof) hereunder pursuant to an assumption agreement satisfactory to the City. If any Mortgagee or its nominee or assignee shall acquire its Mortgagor’s right, title and interest hereunder as a result of a judicial or non-judicial foreclosure under any Permitted Mortgage, or by means of a deed in lieu of foreclosure, or through settlement of or arising out of any pending or contemplated foreclosure action, such Mortgagee shall thereafter have the right to assign or transfer such Mortgagor’s right, title and interest hereunder to an assignee in accordance with Section 2.4 hereof. Upon execution and delivery of an Assumption in accordance with Section 2.4 hereof, the City shall cooperate with the new Master Developer or the new successor Owner of the Project Area (or any portion thereof), at the sole expense of said new Master Developer or said new successor Owner of the Project Area (or any portion thereof), in taking such action as may be necessary to remove Master Developer or such other Owner of the Project Area (or any portion thereof) named herein from the Project Area.
10.2.6 No Obligation to Cure. Any Mortgagee who comes into possession of the Project Area, or any portion thereof, pursuant to foreclosure of a mortgage or deed of trust, or deed in lieu of such foreclosure, shall take the Project Area or portion thereof, subject to the terms of this Agreement. Notwithstanding any provision of this Agreement to the contrary, no Mortgagee shall have an obligation or duty under this Agreement to perform any of the obligations or other affirmative covenants of Master Developer or any successor Owner of all or any portion of the Project Area hereunder, or to guarantee such performance; provided, however, that to the extent that any covenant to be performed by Master Developer or any such successor Owner of the Project Area or any portion thereof is a condition precedent to the performance of a covenant by the City, the performance thereof shall continue to be a condition precedent to the City’s performance hereunder, and further provided that any sale, transfer or assignment by any Mortgagee in possession shall be subject to the provisions of Section 2.4 of this Agreement. _____ City _____ Master Developer Page 36 of 50
10.2.7 Form of Notice. Any Mortgagee under a Permitted Mortgage shall be entitled to receive the notices required to be delivered to it hereunder provided that such Mortgagee shall have delivered to each party a notice substantially in the following form:
The undersigned, whose address is
does hereby certify that it is the Mortgagee (as such term is defined in that certain Development Agreement dated as of , 2021,
between Rancho Calera, LLC, and the City of Chowchilla), of the parcel of land described on “Exhibit A” attached hereto, which parcel is owned by , a party to the Development Agreement (the “Party”). In the event that any notice shall be given of a default to the Party under the Development Agreement, a copy thereof shall be delivered to the undersigned that shall have the rights of a Mortgagee to cure the same, as specified in the Development Agreement. Failure to deliver a copy of such notice shall in no way affect the validity of the notice to the Party, but no such notice shall be effective as it relates to the rights of the undersigned under the Development Agreement with respect to the Permitted Mortgage, including the commencement of any cure periods applicable to the undersigned, until actually received by the undersigned.
10.2.8 Estoppel Certificate. The City shall execute an estoppel certificate in form and substance reasonably satisfactory to either an actual or a prospective Mortgagee at appropriate times (by way of example, but not limitation, prior to issuance of a commitment letter, prior to execution of loan documents, and/or prior to loan funding) in connection with the construction financing and from time to time thereafter, upon the reasonable request of the Mortgagee.
10.2.9 Limitation of Liability. Upon acquiring title to the Project Area or any portion thereof, Mortgagee shall have no obligations or liability to the City beyond the Mortgagee’s interest if any, in the Project Area or such portion thereof, and the City shall look exclusively to such interest in the Project Area or such portion thereof for payment and discharge of any obligations imposed upon the Mortgagee under this Agreement or any other document entered into in connection therewith. Mortgagee shall be released and relieved of any liability under this Agreement and under any other document entered into in connection therewith upon the assignment of Mortgagee’s rights upon or subsequent to foreclosure of its collateral or acquisition in lieu of foreclosure.
11. MISCELLANEOUS PROVISIONS.
11.1 Recordation of Agreement. Within ten (10) days of the Effective Date, the City Clerk shall record with the Madera County Recorder a fully executed copy of this Agreement and the ordinance approving its adoption. The Agreement shall be binding upon, and the benefits of the Agreement shall inure to, the parties and all successors in interest to the parties to the Agreement. The City shall execute the Agreement within a reasonable time after the Effective Date.
11.2 Entire Agreement. This Agreement sets forth and contains the entire understanding and agreement of the parties as to the subject matter hereof, and there are no oral or written _____ City _____ Master Developer Page 37 of 50
representations, understandings or ancillary covenants, undertakings or agreements which are not contained or expressly referred to herein. No testimony or evidence of any such representations, understandings or covenants shall be admissible in any proceedings of any kind or nature to interpret or determine the terms or conditions of this Agreement.
11.3 Severability. If any term, provision, covenant, or condition of this Agreement shall be determined invalid, void, or unenforceable, the remainder of this Agreement shall not be affected thereby to the extent such remaining provisions are not rendered impractical to perform taking into consideration the purposes of this Agreement. Notwithstanding the foregoing, the provision of the public benefits set forth in Section 4, Section 5, and Section 6 of this Agreement, including the payment of the fees set forth therein, are essential elements of this Agreement and the City would not have entered into this Agreement but for such provisions, and therefore in the event such provisions are determined to be invalid, void, or unenforceable, this entire Agreement shall be null and void and of no force and effect whatsoever.
11.4 Interpretation and Governing Law. This Agreement and any dispute arising hereunder shall be governed and interpreted, in accordance with the laws of the State of California. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the parties hereto, and the rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in interpreting this Agreement, all parties having been represented by counsel in the negotiation and preparation hereof.
11.5 Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement.
11.6 Singular and Plural. As used herein, the singular of any word includes the plural and the plural of any word includes the singular.
11.7 Time of Essence. Time is of the essence in the performance of the provisions of this Agreement as to which time is an element.
11.8 Waiver. Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by the other party, or the failure by a party to exercise its rights upon the default of the other party, shall not constitute a waiver of such party’s right to insist and demand strict compliance by the other party with the terms of this Agreement thereafter.
11.9 No Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the Parties and their successors and assigns. No other person shall have any right of action based upon any provision of this Agreement.
11.10 Mutual Covenants. The covenants contained herein are mutual covenants and also constitute conditions to the concurrent or subsequent performance by the party benefited thereby of the covenants to be performed hereunder by such benefited party.
11.11 Successors in Interest. The burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all successors in interest to the parties to this Agreement, including, without limitation, assignees (directly or by merger), heirs, or transferees by operation of law.
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11.12 Counterparts. This Agreement may be executed by the Parties in counterparts, which counterparts shall be construed together and have the same effect as if all the Parties had executed the same instrument.
11.13 Jurisdiction, Venue and Statute of Limitations. Any action at law or in equity arising under this Agreement or brought by a party hereto for the purpose of enforcing, construing, or determining the validity of any provision of this Agreement shall be filed and tried in the Superior Court of the County of Madera, State of California, and the parties hereto waive all provisions of law providing for the filing, removal or change of venue to any other court. The use of the term “substantial evidence” in this ordinance with respect to the quantum of proof necessary in connection with a finding of non-compliance is not intended to limit, nor impose a standard of review upon, any court pursuant to a proceeding initiated for that purpose.
11.14 Project as a Private Undertaking. It is specifically understood and agreed by and between the Parties hereto that the Development of the Project is a private development, that neither party is acting as the agent of the other in any respect hereunder, and that each party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Agreement. No partnership, joint venture or other association of any kind is formed by this Agreement. The only relationship between City and Master Developer and any successor Owner(s) of all or any portion of the Project Area is that of a government entity regulating the development of private property and the owner of such property, which development separately may require the construction of public improvements as fair consideration hereunder or as conditions of approval of the development as required by City ordinances and policies. City and Master Developer agree and acknowledge that the construction of such public improvements is subject to Section 11.20 below.
11.15 Further Actions and Instruments. Each of the parties shall cooperate with and provide reasonable assistance to the other to the extent contemplated hereunder in the performance of all obligations under this Agreement and the satisfaction of the conditions of the Agreement.
Upon the request of either party at any time, the other party shall promptly execute, with acknowledgement or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Agreement to carry out the intent and to fulfill the provisions of this Agreement or to evidence or consummate the transactions contemplated by this Agreement.
11.16 Authority to Execute. The person or persons executing this Agreement on behalf of Master Developer warrants and represents that he/they have the authority to execute this Agreement on behalf of his/their corporation, partnership or business entity and warrants and represents that he/they has/have the authority to bind Master Developer to the performance of its obligations hereunder.
11.17 Covenants Running With Land. Subject to the terms and conditions set forth in this Agreement, it is intended and determined that the provisions of this Agreement shall constitute covenants that shall run with the Project Area and the benefits and burdens thereof shall bind and inure to all successors in interest as to the parties hereto. _____ City _____ Master Developer Page 39 of 50
11.18 Findings of Support. The City hereby finds and determines that execution of this Agreement is in the best interest of the public health, safety, and general welfare and that the provisions of this Agreement are consistent with the General Plan and the Specific Plan.
11.19 Incorporation of Recitals. The recitals are specifically incorporated into this Agreement.
11.20 Compliance with Laws. Master Developer shall carry out the design, construction and operation of the Project and the public improvements identified in this Agreement in substantial conformity with all applicable laws, ordinances, statutes, codes, rules, regulations, orders and decrees of the United States, the State of California, the County of Madera, the City or any other political subdivision in which the Property is located, and of any other political subdivision, agency or instrumentality exercising jurisdiction over the City, the Master Developer, or the Property, including all applicable federal, state and local occupation, safety and health laws, rules, regulations and standards; applicable state and labor standards, including prevailing wage requirements as they apply to the public improvements; the Existing Land Use Regulations and Ordinances as they apply to the Project and the public improvements; building, plumbing, mechanical and electrical codes, as they apply to the Project and the public improvements; all other provisions of the City of Chowchilla and its Municipal Code as they apply to the Project and the public improvements; and all applicable disabled and handicapped access requirements, including, without the limitation, the Americans With Disability Act, 42 U.S.C. §12101 et seq., California Government Code §4450 et seq., and the Unruh Civil Rights Act, Civil Code §51 et seq..
Notwithstanding the foregoing, Master Developershall be solely responsible for determining and effectuating compliance with such laws, and the City make no representation as to the applicability or non-applicability of any of such laws and Master Developer shall bear the risk of any compliance or non-compliance with such laws. Notwithstanding, Master Developershall not be in default under the provisions of this Section 11.20 unless Master Developer’s noncompliance with such provisions results in a material and adverse effect on Master Developer’s ability to comply with the Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the day and year set forth below, as authorized by Ordinance No. of the Council.
Date: , 2021
CITY:
CITY OF CHOWCHILLA,
a Municipal Corporation
By:
, Mayor of the City of Chowchilla
_____ City _____ Master Developer Page 40 of 50
ATTEST:
, City Clerk
APPROVED AS TO CONTENT:
Community and Economic Development Department
By:
, Director of Community and Economic Development
APPROVED AS TO FORM:
By:
, City Attorney
MASTER DEVELOPER:
RANCHO CALERA, LLC,
a California limited liability company
By:
Glenn M. Pace, its Manager
_____ City _____ Master Developer Page 41 of 50
ACKNOWLEDGEMENTS
STATE OF CALIFORNIA )
) ss.
COUNTY OF )
Please remove or update jurat form.
On , before me, the undersigned, a Notary Public in and for said State, personally appeared , personally known to me (or 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.
WITNESS MY HAND AND OFFICIAL SEAL
Notary Public
STATE OF CALIFORNIA )
) ss.
COUNTY OF )
On , before me, the undersigned, a Notary Public in and for said State, personally appeared , personally known to me (or 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.
WITNESS MY HAND AND OFFICIAL SEAL
Notary Public
_____ City _____ Master Developer Page 42 of 50
Exhibit A
Existing Development Approvals and Vested Elements
The City of Chowchilla General Plan adopted by the Council on May 2, 2011, a copy of which is on file with the City Clerk.
The Rancho Calera Specific Plan adopted by the Council on May 2, 2011, as set forth in Resolution No. 41-11, a copy of which is on file with the City Clerk, as amended by the revised Rancho Calera Specific Plan adopted by the Council on , 2021, as set forth in Resolution No. , a copy of which is on file with the City Clerk.
The Rancho Calera Annexation to the City of Chowchilla by Madera County Local Agency Formation Commission (LAFCO), pursuant to Resolution No. 2011-007, which was adopted on December 28, 2011.
The Chowchilla 2040 General Plan and Rancho Calera Specific Plan Environmental Impact Report certified by the Council on May 2, 2011, as set forth in Resolution No. 3-11, as amended by the Mitigated Negative Declaration adopted by the Council on , 2021, as set forth in Resolution No. , a copy of which is on file with the City Clerk.
The Mitigation Monitoring Plan for the Project adopted by the Council on May 2, 2011, as set forth in Resolution No. 44-11, a copy of which is on file with the City Clerk.
Tentative Map No. , including the Conditions of Approval attached thereto, adopted by the Council on , 2021, pursuant to Resolution No. , a copy of which is on file with the City Clerk.
Tentative Map No. , including the Conditions of Approval attached thereto, adopted by the Council on , 2021, pursuant to Resolution No. , a copy of which is on file with the City Clerk.
The Existing Development Approvals, as defined in the Development Agreement and listed above, are each Vested Elements under and in accordance with the Development Agreement to which this Exhibit A is attached.
_____ City _____ Master Developer Page 43 of 50
Exhibit B
Legal Description of Project Area
For APN/Parcel ID(s): 014-010-006, 007, 010, 011 & 012, 014-030-029 thru 032 & 034 thru 038 & 056 and
014-270-002, 003 & 004
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF CHOWCHILLA, COUNTY OF MADERA, STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS:
PARCEL 1: APN 014-030-056
Parcel 1 of Parcel Map No. 03-14, Greenhills Estates & Golf Club, in the City of Chowchilla, County of Madera, State of California, according to the map thereof recorded December 18, 2003 in Book 52 Pages 37 through 42, inclusive, of Maps, Madera County Records.
PARCEL 2: APN 014-030-029 thru 032 & 034 thru 039
Parcels A, B, C and D; Outlots F, G, H, I and J; and designated Remainder Parcel of Parcel Map No. 00- 29, in the City of Chowchilla, County of Madera, State of California, according to the map thereof recorded July 12, 2001 in Book 49 Pages 113 and 114 of Maps, Madera County Records.
PARCEL 3: APN 014-010-010
A portion of Outlot "A", in the City of Chowchilla, County of Madera, State of California, as shown on that certain Parcel Map 93-01, filed for record on June 15, 1994 in Book 42 of Maps, pages 94 through 100, Madera County Records, described as follows:
Beginning at the Southeast corner of Section 21, Township 9 South, Range 16 East, Mount Diablo Base and Meridian;
Thence along the Easterly line of said Section 21, North 0° 41' 42" West, 75.00 feet, to the general Northerly line of said Outlot "A";
Thence Westerly along said Northerly line, along a non-tangent curve to the right, having a radius of 1757.35 feet, whose center bears North 0° 44' 19" West, through a central angle of 6° 42' 13" for an arc length of 205.61 feet, to a line parallel with and 87.00 feet Northerly of the Southerly line of said Section 21, being the True Point of Beginning;
Thence along said parallel line, South 89° 15' 55" West, 426.76 feet; Thence North 85° 01' 27" West, 4.76 feet, to the general Southerly line of said Outlot "A"; Thence along said general Southerly line, the following seven courses:
_____ City _____ Master Developer Page 44 of 50
1. Thence Westerly along a non-tangent curve to the right, having a radius of 1857.35 feet, whose center bears North 19° 18' 25" East, through a central angle of 11° 13' 07" for an arc length of 363.67 feet;
2. Thence North 59° 28' 29" West, 311.05 feet;
3. Thence along a tangent curve to the left, having a radius of 3323.00 feet, through a central angle of 30° 30' 52" for an arc length of 1769.76 feet;
4. Thence North 89° 59' 21" West, 200.00 feet;
5. Thence along a tangent curve to the left, having a radius of 3323.00 feet, through a central angle of 31° 59' 29"
for an arc length of 1855.42 feet;
6. Thence South 58° 01' 10" West, 389.33 feet;
7. Thence along a tangent curve to the right, having a radius of 1600.00 feet, through a central angle of 9° 29' 29" for an arc length of 265.05 feet, to a line parallel with and 89.00 feet Northerly of the Southerly line of Section 20, Township 9 South, Range 16 East, Mount Diablo Base and Meridian; Thence along said parallel line, South 89° 16' 12" West, 124.86 feet; Thence along a tangent curve to the right, having a radius of 20.00 feet, through a central angle of 89° 59' 43" for an arc length of 31.41 feet, to the Southerly prolongation of the Easterly line of Fig Tree Road (104 feet wide) as shown on that certain Parcel Map 04-03, filed for record October 11, 2005, in Book 54 of Maps, pages 147 through 150, Madera County Records; Thence along said prolongation, North 0° 44' 05" West, 34.55 feet to the general Northerly line of said Outlot "A";
Thence along said general Northerly line, the following seven courses:
1. Thence Easterly along a non-tangent curve to the left, having a radius of 1500.00 feet, whose center bears North 18° 07' 05" West, through a central angle of 13° 51' 45" for an arc length of 362.92 feet;
2. Thence North 58° 01' 10" East, 389.33 feet;
3. Thence along a tangent curve to the right, having a radius of 3423.00 feet, through a central angle of 31° 59' 29" for an arc length of 1911.25 feet;
4. Thence South 89° 59' 21" East, 200.00 feet;
5. Thence along a tangent curve to the right, having a radius of 3423.00 feet, through a central angle of 30° 30' 52" for an arc length of 1823.01 feet;
6. Thence South 59° 28' 29" East, 311.05 feet;
7. Thence along a tangent curve to the left, having a radius of 1757.35 feet, through a central angle of 24° 33' 38" for an arc length of 753.31 feet, to the True Point of Beginning.
PARCEL 4: APN 014-010-011
A portion of Outlot "A", in the City of Chowchilla, County of Madera, State of California, as shown on that certain Parcel Map 93-01, filed for record on June 15, 1994 in Book 42 of Maps, pages 94 through 100, Madera County Records, described as follows:
_____ City _____ Master Developer Page 45 of 50
BEGINNING at the intersection of the general Northerly line of said Outlot "A" with the Westerly line of Fig Tree Road (104 feet wide) as shown on that certain Parcel Map 04-03, filed for record October 11, 2005 in Book 54 of Maps, pages 147 through 150, Madera County Records; Thence along the Southerly prolongation of said Westerly line, South 0° 44' 05" East, 6.04 feet; Thence along a tangent curve to the right, having a radius of 20.00 feet, through a central angle of 90° 00' 17" for an arc length of 31.42 feet;
Thence Westerly along a reverse curve to the left, having a radius of 2098.00 feet, through a central angle of 4°28' 54" for an arc length of 164.11 feet;
Thence along a reverse curve to the right, having a radius of 1990.00 feet, through a central angle of 1° 07' 41" for an arc length of 39.18 feet, to the general Northerly line of said Outlot "A"; Thence Easterly along said general Northerly line, along a non-tangent curve to the left, having a radius of 1500.00 feet, whose center bears North 5° 21' 58" West, through a central angle of 8° 37' 56" for an arc length of 225.00 feet, to the Point of Beginning.
PARCEL 5: APN 014-010-007
Outlot A of Parcel Map No. 04-03, in the City of Chowchilla, County of Madera, State of California, according to the map thereof recorded October 11, 2005 in Book 54, Pages 147 to 150, inclusive of Maps, Madera County Records.
Certificates of Correction were recorded January 25, 2007, as Document No. 2007003624 and June 15, 2007, as Document No. 2007022970, of Official Records.
PARCEL 6: APN 014-010-006
Parcel 2 of Parcel Map No. 04-03, in the City of Chowchilla, County of Madera, State of California, according to the map thereof recorded October 11, 2005 in Book 54, Pages 147 to 150, inclusive of Maps, Madera County Records.
Certificates of Correction were recorded January 25, 2007, as Document No. 2007003624 and June 15, 2007, as Document No. 2007022970, of Official Records.
PARCEL 7: APN 014-010-012
Remainder 1 of Parcel Map No. 93-01, in the City of Chowchilla, County of Madera, State of California, according to the map thereof recorded June 15, 1994 in Book 42, Pages 94 to 100 of Maps, Madera County Records.
Excepting therefrom, that portion thereof lying within Parcels 1, 2 and Outlots A and B of Parcel Map No. 04-03, according to the map thereof recorded October 11, 2005 in Book 54, Pages 147 to 150, inclusive of Maps, Madera County Records.
_____ City _____ Master Developer Page 46 of 50
Also excepting therefrom, that portion thereof conveyed to Chowchilla Water District, by Deed recorded April 4, 2004, as Document No. 2007013052, of Official Records.
PARCEL 8: APN 014-270-003
Parcel 1 of Parcel Map No. 2004, in the City of Chowchilla, County of Madera, State of California, according to the map thereof recorded February 26, 1981 in Book 27 of maps, pages 94 and 95, Madera County Records.
Excepting therefrom, an undivided 1/2 interest in all oil, gas and other hydrocarbons and all other minerals of whatsoever nature presently owned by Grantor, provided however, that the Grantor, its successors and assign shall not have and do expressly waive the right of way for any purpose whatsoever to enter upon, into or through the surface of the property granted herein or any part of said property, lying between said surface and five hundred feet below the surface, it being understood that grantor, its successors and/or assigns, reserve an as to an undivided one-half interest in all oil, gas and other hydrocarbons, and all other minerals of whatsoever nature located within such five hundred feet depth, as reserved in the Deed from Reginald O. Upton, etal, recorded March 5, 1980, as Document No. 4835, in the office of the County Recorder of Madera County, State of California.
PARCEL 9: APN 014-270-004
Parcel 2 of Parcel Map No. 2004, in the City of Chowchilla, County of Madera, State of California, according to the map thereof recorded February 26, 1981 in Book 27 of maps, pages 94 and 95, Madera County Records.
Excepting therefrom, an undivided 1/2 interest in all oil, gas and other hydrocarbons and all other minerals of whatsoever nature presently owned by Grantor, provided however, that the Grantor, its successors and assign shall not have and do expressly waive the right of way for any purpose whatsoever to enter upon, into or through the surface of the property granted herein or any part of said property, lying between said surface and five hundred feet below the surface, it being understood that grantor, its successors and/or assigns, reserve an as to an undivided one-half interest in all oil, gas and other hydrocarbons, and all other minerals of whatsoever nature located within such five hundred feet depth, as reserved in the Deed from Reginald O. Upton, etal, recorded March 5, 1980, as Document No. 4835, in the office of the County Recorder of Madera County, State of California.
PARCEL 10: APN 014-270-002
A Parcel of land lying all in Section 20, Township 9 South, Range 16 East, Mount Diablo Base and Meridian, in the City of Chowchilla, County of Madera, State of California, according to the Official Plat thereof, described as follows:
Beginning at a point on the South line of said Section 20, which bears the following courses and distances from the Southwest corner of said Section 20, North 89° 18' East 483.65 feet; South 0° 11' 15" West 223.75 feet; North 75° 19' 45" East 926.45 feet and North 89° 18' East 149.52 feet from the Southwest corner of said Section 20; thence from said point of beginning, North 89° 18' East 178.36 feet along the South line of said Section 20; thence North 0 ° 42' West 253.8 feet; South 89° 18' West 199.0 feet and South 5° 21' 30" East 254.64 feet to said point of beginning. _____ City _____ Master Developer Page 47 of 50
The above described land includes a portion of Lot 29 of Dairyland Acres.
Excepting therefrom, that portion lying within that certain parcel of land granted to the State of California for freeway purposes, by Deed recorded June 4, 1956 in Book 671 Page 491, Official Records, Madera County Records.
_____ City _____ Master Developer Page 48 of 50
Schedule 5.2.2.1
The East Robertson Blvd Improvements
_____ City _____ Master Developer Page 49 of 50
Schedule 6.3.1
The East Robertson Blvd Phasing Plan
_____ City _____ Master Developer Page 50 of 50
Schedule 6.4
Table 5-1 Infrastructure and Public Facilities Construction Service, Facility, Open Space
Construction
Responsibility Funding
TRANSPORTATION/CIRCULATION SYSTEM
East Robertson Boulevard/Hwy 99 Interchange City & Caltrans LSDF, CFD, Caltrans, Madera County Measure T Funds, Impact Fees
East Robertson Boulevard (along the project frontage) MD or B LSDF, Impact Fees, MD, B Internal Local Streets & Lanes (public) MD or B LSDF, MD, B Internal Local Streets & Lanes (private) MD or B LSDF, MD, B Internal Street Lighting & Landscaping MD or B LSDF, MD, B Transit Pullouts and Shelters & Park and Ride Lot MD or B LSDF, Impact Fees, MD, B
WATER SUPPLY SYSTEM
East Robertson Boulevard Water Supply Mains MD or B LSDF, Impact Fees, MD, B Well and/or Water Tank MD or B CFD, Impact Fees, City, MD, B Internal Street Water Supply Mains MD or B LSDF, MD, B
SANITARY SEWER SYSTEM
New Wastewater Plant or Upgrade of Wastewater Plant
(including master mains for delivery to Plan)
City LSDF, CFD, Impact Fees
East Robertson Boulevard Sanitary Sewer Mains MD or B LSDF, Impact Fees, MD, B Internal Street Sanitary Sewer Mains MD or B LSDF, MD, B
STORM DRAINAGE SYSTEM
Existing Storm Drainage Main and Existing Basin MD or B LSDF, MD, B Internal Street Storm Drainage Mains and Basins MD or B LSDF, MD, B BMPs and Drainage Swales MD or B LSDF, MD, B
UTILITIES
Natural Gas PG&E, MD, B PG&E, MD, B
Electricity PG&E, MD, B PG&E, MD, B
Phone/Fiber Optics AT&T AT&T
Cable Services Comcast Comcast
PUBLIC/COMMUNITY FACILITIES
Public Facility Station City LSDF, CFD, Impact Fees
Elementary School CESD MD Land Donation, School Agreement Fees, Negotiated School Fees, State Funding
High School CHSD MD Land Donation, School Agreement Fees, Negotiated School Fees, State Funding
Minor Community Park City Impact Fees, City
Public Neighborhood Parks, Riverwalk, Promenades, and
other Open Spaces
MD or B LSDF, Impact Fees, MD, B
Private Open Spaces MD or B LSDF, MD, B
LEGEND:
MD - The Master Developer
B - A Builder is a homebuilder or a commercial builder (identified as an Owner in the Development Agreement).
CFD - The 2006 Community Facilities District includes funds to construct certain public improvements.
LSDF - Future CFDs, LMLDs, CSDs, LIDs, and IFDs, all as more particularly defined in the Specific Plan.
Impact Fees = fees established and collected by the City for impacts resulting from new development as established in the Development Agreement.
Transportation includes parkways, medians, and roundabouts.
REPORT TO THE CITY COUNCIL
Item 6.1
CLICK HERE
TO RETURN TO
THE AGENDA
Meeting of: February 22, 2022
AGENDA SECTION: New Business
SUBJECT: Consideration of Approving the Madera County Economic Development Commission’s Proposed 2021-2022 Annual Basic Service Level Budget PREPARED BY: Joann McClendon, City Clerk
ATTACHMENTS: MCEDC Memo, Summary of Staff Time, MCEDC Projected Expenses
REVIEWED BY
ADMINISTRATOR ☒ REVIEWED BYATTORNEY ☒ REVIEWED BY FINANCE ☒ RECOMMENDATION:
That the City Council consider approving, by consensus, the Madera County Economic Development Commission’s proposed 2022-2023 annual basic service level budget at the rate of $34,275.20.
BACKGROUND:
Bobby Kahn, MCEDC Executive Director, has submitted a memo to the Council requesting 2022/2023 Basic Level Budget Funding. The proposed budget request is $34,275.20; up by $88.50, compared to the 2021/2022 request of $34,363.75.
Please refer to the attached Memo for additional details.
FISCAL IMPACT:
$34,275.20 deducted from the City’s General Fund/EDBG Fund.
ALTERNATIVES:
Do not approve.
REPORT TO THE CITY COUNCIL
Item 6.2
CLICK HERE
TO RETURN TO
THE AGENDA
Meeting of: February 22, 2022
AGENDA SECTION: New Business
SUBJECT: Ratification of a Resolution of the City Council of the City of Chowchilla Declaring an Emergency Condition Necessitating Completion of the Police Department Water Pipe Rehabilitation Project and Ratifying Administrator Actions to Enter into an Agreement with Divcon, Inc. to Complete the Projects Necessary to Safeguard Life and Property and Continue Essential Services of The City of Chowchilla
APPROVED BY: Rod Pruett, City Administrator
ATTACHMENTS: Resolution
REVIEWED BY
ADMINISTRATOR ☒ REVIEWED BYATTORNEY ☒ REVIEWED BY FINANCE ☒ RECOMMENDATION:
Staff is requesting that City Council approve a declaration of an emergency condition necessitating completion of the Police Department Water Pipe Rehabilitation Project and ratifying administrator actions to enter into an agreement with Divcon, Inc. to complete the projects.
BACKGROUND:
Over the past two years, the City of Chowchilla’s Police Department has experienced numerous plumbing issues and failures related to the age and condition of the water pipe plumbing throughout the building.
These issues have led to water leaks in the holding cells, flooding in the holding cells, no water in holding cells, water leaks into light fixtures, the hallways and near essential emergency services equipment. While staff has addressed these issues with temporary fixes, staff determined that there was an immediate need to repair/replace the aging plumbing system serving the Police Department due to the threat to health and safety of the building’s occupants and the potential to damage essential emergency services equipment, which would impair public safety services.
The City initially advertised for requests for proposals (RFP) for this project in May 2021 and July 2021.
However, the city did not receive any bids for either RFP. As a result, the City reached out directly to multiple vendors, including many local vendors, for quotes through a mini-RFP process. All potential bidders were provided with the previous RFP to determine scope, provided with any as-builts that the City had on file for the building and allowed access to the building’s infrastructure in order to put together their best estimate in order to submit their quotes by January 7, 2022 at the latest in order for the City to award by January 25, 2022.
As a result of the mini-RFP, three (3) bids were received from:
• Divcon, Inc.
• Diede Construction, Inc.
• Burke Construction
The three proposals received were reviewed by City staff for completeness and to ensure that they included the same assumptions. Upon analysis of the bids submitted, Divcon, Inc. submitted the lowest bid. City Council approved award of the bid on January 25, 2022 to Divcon, Inc.
REASON FOR RECOMMENDATION:
As stated previously, there is an urgent need to repair the aging plumbing system serving the Police Department. The system has already experienced water leakage incidents and such incidents threaten the equipment and dispatch services located in the building, in addition to threatening the health and safety of the occupants within the building. Additionally, the nine-month bid delay has exacerbated the system danger of leakage and threat to essential services and equipment. Below are some recent pictures of the plumbing at the Police Department.
Rusted galvanized pipes Leaks in dispatch next to electrical and IT Per section 4.04.120 of the City of Chowchilla’s Municipal Code, the City Administrator may make or authorize others to make emergency procurements of supplies, equipment, services, or construction items when there exists a threat to public health, welfare or safety. Emergency procurements exceeding $50,000 must be ratified by the City Council at their next regular meeting.
FISCAL IMPACT:
Council previously approved award of the project at the January 25, 2022 City Council meeting. As a result, there are no General Fund impacts from the recommended actions.
ALTERNATIVES:
None proposed.
ACTIONS FOLLOWING APPROVAL:
Repairs to the Police Department water plumbing system will begin.
COUNCIL RESOLUTION # -22
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHOWCHILLA DECLARING AN
EMERGENCY CONDITION NECESSITATING COMPLETION OF THE POLICE DEPARTMENT
WATER PIPE REHABILITATION PROJECT AND RATIFYING ADMINISTRATOR ACTIONS TO ENTER INTO AN AGREEMENT WITH DIVCON, INC.TO COMPLETE THE PROJECT
AS NECESSARY TO SAFEGUARD LIFE AND PROPERTY AND CONTINUE ESSENTIAL SERVICES
OF THE CITY OF CHOWCHILLA
WHEREAS, there exists an urgent need to repair the aging plumbing system serving the Police Department; said system has already experienced water leakage incidents and such incidents threaten the equipment and dispatch services located in the building; and WHEREAS, the City of Chowchilla (“City”) has since May issued two formal Requests For Proposals (“RFPs”) for the Police Department Water Pipe Rehabilitation Project (“Project”) and received no bids; and
WHEREAS, the nine-month bid delay has exacerbated the system danger of leakage and threat to essential services and equipment; and
WHEREAS, City informally sought proposal from qualified contractors with three bids provided from which staff selected the lowest bidder (Divcon, Inc.) with Council approval on January 25, 2022; and WHEREAS, on January 31, 2022, the City received a procedural complaint by email from Construction Industry Force Account Council, alleging that the bid process was deficient; and WHEREAS, Chowchilla City Code section 4.04.120 authorizes the City Administrator to make emergency procurements of construction work where there exists a threat to the public health, welfare or safety; provided that such emergency procurement shall be made with such competition as is practicable under the circumstances.
NOW THEREFORE, BE IT RESOLVED that the City Council of the City of Chowchilla hereby finds, determines and declares the following:
1. The above recital are true and correct.
2. The aging plumbing system in the Police Department and the potential for water damage presents a threat to public health, welfare and safety.
3. The City Administrator has taken reasonable steps to attempt to procure bids through both formal and subsequently informal competitive processes and arrived at a responsible and responsive low bid to complete the essential Project and address the public health, welfare and safety threat.
4. The action of the Administrator entering into the necessary Agreement and documents with Divcon, Inc.to complete the Project for $253,067.08 is ratified.
PASSED AND ADOPTED by the City Council of the City of Chowchilla this 22nd day of February, 2022 by the following vote to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
APPROVED:
Mayor John Chavez
ATTEST:
Joann McClendon, CMC
City Clerk
COUNCIL RESOLUTION # -22
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHOWCHILLA, CALIFORNIA
DECLARING AN EMERGENCY CONDITION NECESSITATING COMPLETION OF THE
POLICE DEPARTMENT WATER PIPE REHABILITATION PROJECT AND RATIFYING ADMINISTRATOR ACTIONS TO ENTER INTO AN AGREEMENT WITH DIVCON, INC.TO
COMPLETE THE PROJECT AS NECESSARY TO SAFEGUARD LIFE AND PROPERTY AND
CONTINUE ESSENTIAL SERVICES OF THE CITY OF CHOWCHILLA
WHEREAS, there exists an urgent need to repair the aging plumbing system serving the Police Department; said system has already experienced water leakage incidents and such incidents threaten the equipment and dispatch services located in the building; and WHEREAS, the City of Chowchilla (“City”) has since May issued two formal Requests For Proposals (“RFPs”) for the Police Department Water Pipe Rehabilitation Project (“Project”) and received no bids; and
WHEREAS, the nine month bid delay has exacerbated the system danger of leakage and threat to essential services and equipment; and
WHEREAS, City informally sought proposal from qualified contractors with three bids provided from which staff selected the lowest bidder (Divcon, Inc.) with Council approval on January 25, 2022; and
WHEREAS, on January 31, 2022, the City received a procedural complaint by email from Construction Industry Force Account Council, alleging that the bid process was deficient; and WHEREAS, Chowchilla City Code section 4.04.120 authorizes the City Administrator to make emergency procurements of construction work where there exists a threat to the public health, welfare or safety; provided that such emergency procurement shall be made with such competition as is practicable under the circumstances.
NOW THEREFORE, BE IT RESOLVED that the City Council of the City of Chowchilla hereby finds, determines and declares the following:
1. The above recital are true and correct.
2. The aging plumbing system in the Police Department and the potential for water damage presents a threat to public health, welfare and safety.
3. The City Administrator has taken reasonable steps to attempt to procure bids through both formal and subsequently informal competitive processes and arrived at a responsible and responsive low bid to complete the essential Project and address the public health, welfare and safety threat.
4. The action of the Administrator entering into the necessary Agreement and documents with Divcon, Inc.to complete the Project for $253,067.08 is ratified.
5. This resolution takes effect immediately upon adoption.
PASSED AND ADOPTED by the City Council of the City of Chowchilla this 22nd day of February 2022 by the following vote to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
APPROVED:
Mayor John Chavez
ATTEST:
Joann McClendon, CMC
City Clerk
REPORT TO THE CITY COUNCIL
Item 6.3
CLICK HERE
TO RETURN TO
THE AGENDA
Meeting of: February 22, 2022
AGENDA SECTION: New Business
SUBJECT: Consideration and Adoption of a Resolution to Enter into a Facility Use Agreement with the Community Science Workshop Network to Provide Educational Workshops for the Youth of our Community and Authorizing the City Administrator or Designee to Execute Related Documents Thereto PREPARED BY: Stacy Wisener, Recreation and Community Outreach Manager ATTACHMENTS: Resolution
Agreement
REVIEWED BY
ADMINISTRATOR ☒ REVIEWED BYATTORNEY ☒ REVIEWED BY FINANCE ☒ RECOMMENDATION:
The City Council to approve a Resolution to enter into a facility use agreement with the Community Science Workshop Network, to operate their non-profit program and provide youth programming services at the facility.
BACKGROUND:
In February of 2021, staff received a phone call from Jose Sandoval, which expressed interest in seeking a possible city facility in hopes of beginning a Science and Math based program through their non-profit Community Science Workshop Network. Their mission statement is to serve as an advocate and resource for member workshops, providing equitable access to opportunities for California's underserved youth to Tinker, Make, and explore the natural and human-made world through science, technology, engineering, and mathematics. Staff asked for further information such as what services they will provide, the benefit to the community, and how it will be funded. The City was interested in the program, knowing the lack of after-school programming in the City, and are often asked by the community to provide services for youth other than sports. The proposed education-based program is needed in our community, and we wanted to look into it further.
The Community Science Workshop Network was founded in 2010 by a professional network of creative educators, the CSWN consistently prioritizes the workshop approach in order to enmesh children, parents, youth, and educators in the benefits of diverse learning styles that unfold at the workshop, and is a proven quality provider of services and programs. There are 9 Community Science Workshops, with the hope of adding one to Chowchilla. Since 2017, Jose Sandoval, Program Specialist, has been contracted to work with ADUSD (Alview and Dairyland School District) to provide weekly STEM programming for every student.
While the staff was contemplating the program and a facility that can be utilized, the staff decided to give them a trial run with the community to see how they respond. Staff invited them to host "Science in the Park," a new event that would take place before the Movies in the Park in June and July of 2021. The Organization gladly accepted and hosted a well-attended event for three weeks (the fourth was canceled due to extreme heat.) Overall, the community was very happy with the new event, and it was well-received by both the parents and the youth of Chowchilla.
Once staff knew the community was very responsive, it was decided the Recreation Building facility at Edward Ray Park would be ideal for the program. This facility is a shared-use facility; other contracted sports organizations utilize the space for meetings and opening day ceremonies on occasion. The facility is not used at its fullest potential, and the Community Science Workshop Network would put the facility to good use for the benefit of the community.
The City has been working on upgrades to the facility to prepare for proper use. An agreement has been drafted for consideration that suits both entities' needs.
REASON FOR RECOMMENDATION:
Staff believes the Organization could provide a higher level of service for our youth in the community and provide a positive educational environment for them to learn from. City resources are lacking, and enhancing the activities and benefits of after-school programs such as this, would require more substantial resources in personnel, time, and budget allocations. The idea of providing a facility for the use of a positive educational program is a viable one. Staff believes that forming a relationship with the organization to provide services and programs to the City is a very good decision. Staff also believes in utilizing all Cityowned facilities to their fullest potential.
FISCAL IMPACT:
The agreement calls for the City to provide a facility free of charge with the following services: City shall pay all utility costs for the facilities, including electricity, gas, water and sewer, exterior trash bin service, pest control, building alarm service, annual fire extinguisher inspection, and janitorial cleaning services.
The City is already paying for these services, and entering into the agreement would not create additional costs to the City that we are not already accruing for. The program costs will be the sole responsibility of the organization. The organization is allowed to fundraise for the program and accept donations from our community; however, all funds must stay within the Chowchilla Workshop Program.
ALTERNATIVES:
Do not approve the agreement, and the City would seek to find other program services pending an increase in budget allocations.
ACTIONS FOLLOWING APPROVAL:
The Organization has been sent the agreement for their review. If the council approves the agreement, the Organization will sign the agreement. The staff is close to completing the facility improvements, and once those are finalized, the organization will begin the program at the beginning of March 2022.
CITY OF CHOWCHILLA
FACILITIES USE AGREEMENT
This Facilities Use Agreement (“Agreement”) is made and entered into as of the last date signed by the parties (“Effective Date”) between the City of Chowchilla, a California municipal corporation and general law city (“City”) and the Community Science Workshop Network (“Organization”), with respect to the following recitals, which are a substantive part of this Agreement:
RECITALS
A. City owns and maintains facilities at the Edward Ray Park, 625 North 15th Street, Chowchilla, CA, which include a recreation building with a kitchen room, playground area, park restrooms, and on-site parking area (“Facilities”).
B. Organization desires to utilize the Facilities to host workshops and programs for underserved youth related to science, technology, engineering, and mathematics (the “Program”).
C. The City recognizes that it is to the City’s benefit, and to the benefit of the public, for Organization to provide the Program at the Facilities.
D. City is willing to allow use of the Facilities by Organization for the reasons set forth in the Recitals, and upon the terms and conditions set forth in this Agreement.
NOW, THEREFORE, for the consideration set forth herein, CITY and ORGANIZATION agree as follows:
AGREEMENT
1. Scheduled Use.
a. Schedule of Regular Use. On the first day of each month, the Organization shall provide the City with a draft schedule of anticipated use of the Facilities for the month, including days, times, and locations within the Facilities, of anticipated use. As soon as possible after providing the draft schedule, Organization shall provide the City with a final schedule of anticipated use of the Facilities for the month. Organization may not begin using the Facilities prior to providing a final monthly schedule. Organization shall notify the City in advance of any schedule changes, or additions or deletions contrary to the final schedule, and City shall attempt, if needed, to accommodate the adjusted schedule. The Organization understands that the Facilities are used by other parties and that failure to include a time or date of anticipated use in a final schedule may result in the Facilities being unavailable. The Organization is ultimately responsible for coordinating with the City to ensure availability of the Facilities. b. Notice of Workshops. The Organization shall notify the City of its intent to provide Program workshops no later than two (2) months prior to any workshop. 2 2. Use of Facilities.
a. General Use
(1) The Organization will conform to and abide by all Chowchilla Municipal Code ordinances and all state and federal laws and regulations, insofar as the same or any of them are applicable, and where permits and/or licenses are required from the regulatory agency having jurisdiction. Organization specifically agrees to comply with, and ensure compliance by participants and attendees of the Program with, all state law and Chowchilla Municipal Code provisions related to the possession, carrying, transfer, sale, or consumption of alcohol, and use of tobacco, at the Facilities and City parks and by minors. Organization further agrees that it will not allow any unnecessarily loud, boisterous, or disorderly conduct or activities at the Facilities.
(2) The Organization may conduct the Program at the Facilities only. No other City property may be used by the Organization unless prior written consent is received from the City.
(3) The Organization shall be responsible for providing, placing, and maintaining all equipment necessary for the Program.
(4) The City will provide the Organization with any necessary City key(s) and/or alarm code required to use the Facilities for the Program.
Organization shall submit a completed key assignment form provided by the City prior to receiving any City key(s) and/or alarm code. The Organization shall not duplicate any City key(s) without prior express authorization from the City. The Organization further is prohibited from sharing any City key(s) or alarm codes with any person(s) not authorized by the City.
(5) The Chowchilla Municipal Code provides that parks are closed between the hours of 10:00 PM and 7:00 AM. The City will permit the Organization to occupy the Facilities between the hours of 7:00 AM to 10:30 PM for regular Program activities. The City may provide a time extension exemption for approved special activities, such as special workshops, provided the City Manager or his or her designee is notified in advance in writing, electronic or otherwise, and has given approval for the activities. (6) Vehicles related to the Program are prohibited from entering any portion of the Facilities not customarily used for public vehicular traffic. The Organization may request prior consent from the City for limited and temporary vehicle ingress and egress of the Facilities. (7) Temporary operational and/or services structure(s), such as portable toilets and concession trailers, shall not be placed on or used by the Organization 3 at the Facilities without prior approval from the City. The Organization may request prior written consent by contacting the City Manager or his or her designee at least three (3) weeks prior to the intended installation date of any such structure.
b. Concession Operations
(1) The Organization, an approved non-profit direct affiliate, or approved mobile or similar private vendor may provide a concession operation to Program participants and attendees at the Facilities. A notice of intent to provide a concession operation must be submitted to the City Manager or his or her designee, in writing, electronically or otherwise, no less than four (4) weeks prior to the anticipated start date of such concession operations to ensure compliance with all City regulations and requirements. (2) The Organization may use the kitchen room of the recreation building at the Facilities as a concession operation during the Program for the Program. Any excessive trash generated by the concession operation must be removed from the recreation building in compliance with the Facilities Maintenance section of this agreement.
(3) Any mobile or similar private vendor must comply with all applicable law related to concession operations, including, but not limited to, applicable state and federal law and the Chowchilla Municipal Code. All concession vendors must additionally comply with all County of Madera Public Health Department regulations and licensure requirements related to concession operations. Concession vendors may not operate at the Facilities without prior City approval and proof of a current City of Chowchilla business license for such operations. For purposes of this section, the Chowchilla Community and Economic Development Department and the Chowchilla Finance Department shall authorize all private vendor concession operations. Proof of compliance with this section shall be provided to the City upon request.
(4) Concession vehicles are restricted to set up on adjacent paved street surfaces, and no concession vehicle may be driven, parked, or otherwise placed upon the Facilities without prior approval from the City Manager or his or her designee.
(5) All supplies and goods for concession operations shall be provided by the Organization, direct affiliate, or approved private vendor. (6) The City will not be responsible for any loss of goods, supplies, or equipment incurred by the Organization, direct affiliate, or approved private vendor.
4 c. Special Events.
(1) The Organization may conduct special events related to the Program, such as workshops, at the Facilities, with prior approval of the City Manager or his or her designee. Approval for special events shall be requested in writing, electronically or otherwise, no less than thirty (30) days (preferably sooner) prior to the special event date. The City must provide prior approval to the Organization before the special event may be promoted and conducted.
(2) The City reserves the right to require additional conditions not prescribed in this Agreement to accommodate any special event. Any such conditions will be provided to the Organization by the City either verbally or in writing.
3. Program Management. Organization shall be solely responsible for the management, oversight, and implementation of, and supervision of personnel related to, the Program. The City shall have no responsibility whatsoever for Program management as described in this section.
4. Background Screening of Volunteers. The City understands that non-profit organizations, such as Organization, depend heavily upon volunteerism, which can be impacted by stringent volunteer screening processes. Therefore, the City urges Organization to implement background screening procedures for its volunteers related to the Program, where deemed necessary and appropriate by the Organization. Where implemented, such screening procedures should be reviewed and updated as necessary.
5. Program Registration Fees. The Organization is solely responsible for setting and collecting any and all Program registration fees. The City will not accept any fees on behalf of the Organization.
6. Fundraising Activities. The Organization may host fundraising events at the Facilities for the Program, provided that all funds generated by such fundraising activities are used for and within the Chowchilla Program. No funds generated through fundraising at the Facilities may go to other affiliated programs. If fundraising will consist of hosting a special event, such as a workshop, Organization must obtain prior City approval in accordance with section 1 of this Agreement.
7. Unavailability of Facilities. Organization understands and acknowledges that the Facilities may not be available during certain City events, programs, and projects. The City will notify the Organization no less than forty-eight (48) hours in advance of any City activities or projects, including non-emergency maintenance or construction projects, that may conflict with Organization’s use of the Facilities. In the event that emergency activities must be undertaken which may impair Organization’s use of the Facilities, City will provide Organization with notice of such activities as soon in advance as possible. The City will notify the Organization no less than two (2) weeks in advance of any pre-scheduled community events which may impair Organization’s ability to use the Facilities.
5 8. Utilities and Expenditures. City shall pay all utility costs for the Facilities, including electricity, gas, water and sewer, exterior trash bin service, pest control, buildingalarm service, annual fire extinguisher inspection, and janitorial cleaning services.
9. Condition of Facilities. In taking possession of the Facilities, Organization understands that the Facilities are provided "as-is", in their present existing condition, and further understands that City shall have no liability or obligation to make any alterations, improvements, or repairs of any kind.
10. Modifications or Improvements to Facilities. Organization shall not modify or make improvements to the Facilities without the prior written authorization of the City Manager or his or her designee. This section shall not prevent the Organization from placing on the Facilities equipment necessary for the conduct of the Program.
11. Facilities Maintenance.
a. Organization shall ensure to the best of its ability that all trash and litter from the Program and Program-related activities is placed into City trash receptacles. The City encourages the Organization to notify the City Manager or his or her designee if there is a need for additional temporary trash receptacles for Program activities, including special events.
b. The Organization shall remove all excess amounts of trash and litter related to the Program and Program-related activities, including trash that cannot be contained in a trash receptacle, from the Facilities and place such refuse in the trash hauler bins located at the south side of the parking lot adjacent to N. Fifteenth Street. Such refuse items may not be disposed of in the park trash receptacles. Trash bags, boxes, and other containers may not be placed outside of any trash receptacle. c. While on the Facilities, Organization will monitor the condition of the Facilities, including, but not limited to, the recreation building and the park restrooms, and will report any problems and maintenance needs to the City Manager or his or her designee.
d. The Organization shall report any graffiti on advertising, equipment, and/or facilities to the City Manager or his or her designee within twenty-four (24) hours following the observance of the damage or graffiti.
12. Incidents or Accidents. The Organization shall report to the City any incidents or accidents involving injury to a person or damage to City property within twenty-four (24) hours of the occurrence. A City incident/accident report must be completed within forty-eight (48) hours of any incident or accident and submitted to the City Manager or his or her designee. The Organization may, at its discretion, request the Chowchilla Police Department to make an official report of the incident which may be provided to the City along with the incident/accident report.
6 13. Promotion and Advertising.
a. At its discretion, the City may promote the Program on behalf of the Organization through available City media resources and at City buildings and/or other facility, consistent with City-approved criteria for such promotions. b. The Organization may advertise the Program and/or sponsors at the Facilities in a manner that complies with current City sign standards. Alternate methods for sponsor displays may be used only with prior City approval. With prior approval of the City, the Organization may attach advertising to the Facilities, such as the front door of the recreation building, to promote the Program and/or sponsors up to four (4) weeks prior to the advertised Program activity. All such advertising must be removed within two (2) weeks at the conclusion of the Program activity.
Organization shall not install temporary or permanent advertising support structures, such as posts, at the Facilities.
c. Organization shall maintain all advertising in a good and presentable condition and shall be responsible for removing unsafe or defaced (by graffiti or otherwise) advertising. Organization shall additionally be responsible for removing any damaged advertising if it cannot be repaired within forty-eight (48) hours. In the event that Organization does not remove advertising in accordance with this paragraph, the City may remove such advertising and charge Organization for the actual costs of such removal in accordance with the City Master Fee Schedule.
14. Indemnification. Organization shall indemnify, defend, and hold harmless City and City’s officials, officers, employees, agents, and volunteers from and against all liability, claims, suits, damages, losses, costs and expenses, including reasonable attorney’s fees, incurred in connection with or arising out of: (1) the use of the Facilities by Organization, its officers, agents, members, employees, and volunteers; (2) Organization’s provision of the Program and all employment and other activities associated with and related to the Program; (3) any breach of Organization’s performance obligations under this Agreement; or (4) any acts of negligence or willful misconduct of Organization or any person or entity claiming through or under Organization, or Organization’s agents, employees, and contractors.
15. Notices. Any notices herein provided to be given or which may be given by either party to the other, shall be deemed to have been fully given when made in writing and deposited in the United States mail, postage prepaid and addressed as follows:
To Organization: CSW Network P.O. Box 1307 Sanger, CA 93657 To City: 130 S. 2nd Street
Chowchilla, CA 93610
7 16. Insurance Requirements.
a. Insurance. Organization shall, at its sole cost and expense, procure and maintain, for the duration of this Agreement, insurance against claims for injuries to persons, wrongful death, damage to property, and for other claims that may arise from or in connection with any act, error, omission or negligence of Organization, its officials, officers, employees, agents, and volunteers. Such insurance shall name City of Chowchilla as additionally insured and Organization shall provide proof of insurance carriage. Insurance coverage shall have the following limits:
(1) Each Occurrence – $2,000,000
(2) Personal & Advertising Injury – $2,000,000
(3) General Aggregate – $4,000,000
(4) Products/Completed Operations – $2,000,000
(5) Damage to Rented Premises (each occurrence) – $300,000 (6) Medical Expenses (any one person) – $10,000
b. Acceptability of Insurers. The insurance described in this subsection is to be placed with an insurer or insurers licensed to do business in California, admitted by the California Insurance Commissioner, and which have a current A.M. Best’s rating of not less than A:VII.
17. License. City hereby grants to Organization, and Organization hereby accepts from City, a license to occupy and use the Facilities, subject to the terms and conditions of this Agreement.
18. Potential Third-Party Claims arising from this Agreement. The parties agree to inform each other upon notice of actual or potential claims or suits arising out of implementing this Agreement. The parties agree to cooperate, to the extent authorized by applicable law, in the investigation of such complaints, to include making reasonably available any records, material, statements, names, and personnel. Claims shall be determined by applicable state and federal law.
19. Nondiscrimination. The Organization shall not, by reason of race, religion, color, sex, age, sexual orientation, national origin, or the presence of any sensory, mental, or physical disability, discriminate against any person in operation, conduct, or administration of its Program.
20. Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California. Venue shall be Madera County.
21. Entire Agreement and Amendments. This Agreement contains all agreements and understandings of the parties concerning the subject matter of it and cannot be amended or modified except by a subsequent written agreement executed by both parties. This Agreement shall not be modified or amended in any way except in writing signed by the parties hereto. 8 22. Third Party Contracts. This Agreement may be superseded at any time by any Lease or License agreements made between City and a third party.
23. Third Party Beneficiaries. Nothing in this Agreement shall be construed to confer any rights upon any party not a signatory to this Agreement.
24. Term and Termination. The terms of this Agreement will commence on the Effective Date and will continue for a period of one (1) year. The Agreement shall remain in full force and effect unless earlier terminated by either party by written notice of termination no less than thirty (30) days prior to the intended termination date. Upon verbal and/or written approval of the Organization and the City, this Agreement may be continued as written, presuming no additions, deletions, or other adjustments to the context of the Agreement are required. Any continuance or extension of this Agreement for more than two (2) years beyond the initial term must be approved by the Chowchilla City Council.
25. Severability. The unenforceability, invalidity, or illegality of any provision of this Agreement shall not render the other provisions unenforceable, invalid, or illegal.
26. Counterpart Copies. The Agreement may be signed in counterpart or duplicate originals, and any signed counterpart or duplicate original shall be equivalent to a signed original for all purposes.
IN WITNESS WHEREOF, the Parties hereto have, through their authorized representatives, executed this Agreement on the Agreement Date.
CITY OF CHOWCHILLA (City) ATTEST
____________________________________ ____________________________________ John Chavez, Mayor Joann McClendon, City Clerk
COMMUNITY SCIENCE WORKSHOP NETWORK (Organization)
____________________________________ ____________________________________ Dr. Jerry D. Valadez, Ed.D. Jose Sandoval, Director of STEM Program President/CEO Community CSWN- Chowchilla Program
Science Workshop Network
J:\wdocs\03326\001\AGT\00916378.RTF
COUNCIL RESOLUTION # -22
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHOWCHILLA, CALIFORNIA TO ENTER
INTO A FACILITY USE AGREEMENT WITH THE COMMUNITY SCIENCE WORKSHOP NETWORK
TO PROVIDE EDUCATIONAL WORKSHOPS FOR THE YOUTH OF OUR COMMUNITY AND
AUTHORIZING THE CITY ADMINISTRATOR OR DESIGNEE TO EXECUTE RELATED DOCUMENTS
THERETO
WHEREAS, the City of Chowchilla is seeking to provide beneficial programs for our youth; and WHEREAS, in June of 2021, the organization conducted some workshops at a City event and was well received by the community; and
WHEREAS, staff has had multiple meetings with the organization to bring the agreement to fortition; and
WHEREAS, representatives from the organization and staff have agreed in concept to the terms of the agreement; and
WHEREAS, staff believes the City will benefit from the organization providing educational program services for the youth.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chowchilla hereby finds, determines and declares the following:
1. The above recitals are true and correct.
2. The Organization will provide adequate educational services to the youth of the community.
3. Agrees to enter into an agreement for the use of our facility to provide educational program services.
4. Authorizes the City Administrator or designee to execute all documents necessary to complete the services on behalf of the City of Chowchilla.
5. This resolution is effective immediately upon adoption.
PASSED AND ADOPTED by the City Council of the City of Chowchilla this 22nd day of February, 2022 by the following vote to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
APPROVED:
John Chavez, Mayor
ATTEST:
Joann McClendon, CMC
City Clerk
REPORT TO THE CITY COUNCIL
Item 6.4
CLICK HERE
TO RETURN TO
THE AGENDA
Meeting of: February 22, 2022
AGENDA SECTION: New Business
SUBJECT: Consideration of a Resolution to Oppose Initiative 21-0042A1, the Taxpayer Protection and Government Accountability Act, a State Ballot Measure Restricting Voters’ Input and Local Taxing Authority
PREPARED BY: Rod Pruett, City Administrator
ATTACHMENTS: Resolution
REVIEWED BY
ADMINISTRATOR ☒ REVIEWED BYATTORNEY ☒ REVIEWED BY FINANCE ☒ RECOMMENDATION:
That the City Council adopts a resolution opposing Initiative 21-0042A1.
BACKGROUND:
The League of California Cities recently passed a resolution opposing Initiative 21-0042A1 regarding a deceptive proposition aimed for the November 2022 statewide ballot.
The measure creates new constitutional loopholes that allow corporations to pay far less than their fair share for the impacts they have on our communities, including local infrastructure, our environment, water quality, air quality, and natural resources.
The measure includes undemocratic provisions that would make it more difficult for local voters to pass measures needed to fund local services and infrastructure, and would limit voter input by prohibiting local advisory measures where voters provide direction on how they want their local tax dollars spent.
The measure makes it much more difficult for state and local regulators to issue fines and levies on corporations that violate laws intended to protect our environment, public health and safety, and our neighborhoods.
The measure puts billions of dollars currently dedicated to state and local services at risk, and could force cuts to public schools, fire and emergency response, law enforcement, public health, parks, libraries, affordable housing, services to support homeless residents, mental health services, and more.
The measure would also reduce funding for critical infrastructure like streets and roads, public transportation, drinking water, new schools, sanitation, and utilities.
REASON FOR RECOMMENDATION:
After reviewing the initiative and discussing with League of California Cities representative, staff believes it is in the best interest of the City of Chowchilla and its residents to Oppose Initiative 21-0042A1.
FISCAL IMPACT:
None
ALTERNATIVES:
Do not oppose the initiative
ACTIONS FOLLOWING APPROVAL:
The resolution will be distributed the League of California Cities Ballot Measure department.
COUNCIL RESOLUTION # -22
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHOWCHILLA, CALIFORNIA OPPOSING INITIATIVE 21-0042A1, THE TAXPAYER PROTECTION AND GOVERNMENT ACCOUNTABILITY ACT, A STATE BALLOT MEASURE RESTRICTING VOTERS’ INPUT
AND LOCAL TAXING AUTHORITY
WHEREAS, there is a deceptive proposition aimed for the November 2022 statewide ballot; and
WHEREAS, the measure creates new constitutional loopholes that allow corporations to pay far less than their fair share for the impacts they have on our communities, including local infrastructure, our environment, water quality, air quality, and natural resources; and WHEREAS, the measure includes undemocratic provisions that would make it more difficult for local voters to pass measures needed to fund local services and infrastructure, and would limit voter input by prohibiting local advisory measures where voters provide direction on how they want their local tax dollars spent; and
WHEREAS, the measure makes it much more difficult for state and local regulators to issue fines and levies on corporations that violate laws intended to protect our environment, public health and safety, and our neighborhoods; and
WHEREAS, the measure puts billions of dollars currently dedicated to state and local services at risk, and could force cuts to public schools, fire and emergency response, law enforcement, public health, parks, libraries, affordable housing, services to support homeless residents, mental health services, and more; and
WHEREAS, the measure would also reduce funding for critical infrastructure like streets and roads, public transportation, drinking water, new schools, sanitation, and utilities.
THEREFORE, BE IT RESOLVED that the City of Chowchilla, opposes Initiative 21-0042A1.
THEREFORE, BE IT FURTHER RESOLVED, that the City of Chowchilla will join the NO on Initiative 21-0042A1 coalition, a growing coalition of public safety, labor, local government, infrastructure advocates, and other organizations throughout the state.
PASSED AND ADOPTED by the City Council of the City of Chowchilla this 22nd day of February, 2022 by the following vote to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
APPROVED:
Mayor John Chavez
ATTEST:
Joann McClendon, CMC
City Clerk
REPORT TO THE CITY COUNCIL
Item 6.5
CLICK HERE
TO RETURN TO
THE AGENDA
Meeting of: February 22, 2022
AGENDA SECTION: New Business
SUBJECT: A City Council Resolution Rescinding Resolution No. 06-21 Thereby Invalidating Emergency Services Director Order No. 02-2020 Regarding COVID Leave Pay; and Confirming Implementation of Senate Bill 114 PREPARED BY: Rod Pruett, City Administrator
ATTACHMENTS: Resolution
REVIEWED BY
ADMINISTRATOR ☒ REVIEWED BYATTORNEY ☒ REVIEWED BY FINANCE ☒ RECOMMENDATION:
That the City Council adopts a resolution to terminate Emergency Services Director Order 02-2020 BACKGROUND:
In December 2020 The City Council approved Emergency Services Director Order 02-2020 which found that it was in the best interest of the employees of the City of Chowchilla to continue to have access to the 80 hours of supplemental paid sick leave (SPSL) that was provided by the federal government under the Families First Coronavirus Response Act (FFCRA).
The SPSL under FFCRA was to stop on 12/31/2020. Order 02-2020 became effective January 1, 2021 and allowed employees who had not yet used the allotted 80 hours under the FFCRA program to keep their balance and could use those hours for COVID related issues, until they were all used up.
There was no end date on Order 02-2020 and it remains in effect until such time as it is otherwise amended, replaced or terminated by the Director of Emergency Services or the City Council of the City of Chowchilla.
On February 9, 2022, California’s governor signed Senate Bill (SB) 114, which creates new Labor Code section 248.6. The law takes effect immediately and is retroactive to January 1, 2022. SB 114 sets forth the employer’s obligation to provide COVID-19 supplemental California paid sick leave to employees.
Subject to the provisions and limitations of SB 114, the maximum potential amount of this leave an employee can receive is 80 hours for full-time employees (and a proportionate amount for other employees).
Since SB 114 has now been signed and is in effect retroactively to January 1, 2022, there is no need for Order 02-2020 anymore. The City will instead comply with the provisions of SB 114. Any remaining hours from Order 02-2020 will be forfeited and everyone will get a new 80 hour leave bank under SB 114. SB 114 is set to expire on September 30, 2022.
REASON FOR RECOMMENDATION:
The City provided the extended leave from Order 02-202 as a courtesy to its employees and now that SB 114 is in place, the employees will have access to an additional 80 hours of leave and Order 02-2020 is no longer needed.
FISCAL IMPACT:
SB 114 provides for the 80 hours but employers are responsible for paying for that, unlike previous federal and state programs that gave employers a credit on their payroll tax returns. The fiscal impact will be dependent upon how many employees use the hours.
ALTERNATIVES:
Do not approve the Resolution and keep Order 02-2020 in effect.
ACTIONS FOLLOWING APPROVAL:
Notify the bargaining units of the decision.
COUNCIL RESOLUTION # -22
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHOWCHILLA, CALIFORNIA RESCINDING RESOLUTION NO. 06-21 THEREBY INVALIDATING EMERGENCY SERVICES DIRECTOR ORDER NO. 02-2020 REGARDING COVID LEAVE PAY; AND CONFIRMING IMPLEMENTATION OF SENATE BILL 114
WHEREAS, on December 31, 2020, the City of Chowchilla Emergency Services Director issued Order No. 02-2020 providing employees continued COVID related leave benefits through calendar year 2021 as the then Families First Coronavirus Response Act (“FFCRA”) expired that same day; and
WHEREAS, on January 12, 2021, with the adoption of Resolution No. 06-21, the City Council of the City of Chowchilla (“City Council”) subsequently ratified the Emergency Services Director’s Order No. 02-2020 providing employees a form of continued COVID related leave; and WHEREAS, on February 9, 2022, Governor Gavin Newsom signed Senate Bill (SB) 114 creating Labor Code section 248.6 which sets forth the City’s obligation to provide COVID-19 supplemental California paid sick leave to employees; and WHEREAS, SB 114 took effect immediately and is retroactive to January 1, 2022 and remains in effect until September 30, 2022; and
WHEREAS, since SB 114 is now in effect and retroactive to January 1, 2022, both Order No. 02-2020 and Resolution 06-21 are now obsolete; and Resolution No. 06-21 should be rescinded which will invalidate the Emergency Services Director’s Order No. 02-2020.
NOW THEREFORE, BE IT RESOLVED, that the recitals set forth above are true and correct and fully incorporated into this Resolution by reference.
BE IT FURTHER RESOLVED, the City Council rescinds Resolution No. 06-21 which invalidates the Emergency Services Director’s Order No. 02-2020.
PASSED AND ADOPTED by the City Council of the City of Chowchilla this 22nd day of February, 2022 by the following vote to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
APPROVED:
Mayor John Chavez
ATTEST:
Joann McClendon, CMC
City Clerk