2025 REGULAR MEETING - CITY COUNCIL / LINCOLN REDEVELOPMENT
SUCCESSOR AGENCY / LINCOLN PUBLIC FINANCING AUTHORITY
August 26, 2025
CITY OF LINCOLN
2025 REGULAR MEETING - CITY COUNCIL /
LINCOLN REDEVELOPMENT SUCCESSOR AGENCY
/ LINCOLN PUBLIC FINANCING AUTHORITY
August 26, 2025
AS A COURTESY, PLEASE TURN OFF ALL CELL PHONES & ELECTRONIC DEVICES DURING THE MEETING -COUNCIL MEETING AGENDA-
6:00 PM
Mayor Holly Andreatta
Mayor Pro Tem Ben Brown Councilmember Whitney Eklund Councilmember Richard Pearl Councilmember John Reedy City Hall (Extremely Limited Seating Capacity)
3rd Floor Council Chambers
600 Sixth Street
Lincoln, CA 95648
or attend via
ZOOM
register by using this link:
https://us06web.zoom.us/webinar/register/WN_L1sVeRjjSwaygN5OEfk5ew or participate by calling US: +1 (669) 900-6833
use ID #842 1355 6096
and use *9 to raise hand to speak
600 Sixth Street
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Lincoln, CA 95648
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www.lincolnca.gov
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916-434-2400 1
1. CALL TO ORDER
2. ROLL CALL
3. PLEDGE OF ALLEGIANCE
4. AGENDA MODIFICATIONS
5. PRESENTATIONS
6. PUBLIC COMMENT ON NON-AGENDA ITEMS WITHIN THE SUBJECT MATTER
EXECUTIVE TEAM
Sean Scully, City Manager
Kristine Mollenkopf, City Attorney
Nita Wracker, Asst. City Manager / Finance Director
Matt Alves, Public Safety Chief
Jennifer Brown, Chief Innovation & Tech. Officer
Vin Cay, City Engineer
Erin Frye, Econ. Dev. & Communication Specialist
Kathryn Hunt, Library Services Director
Hope Ithurburn, City Clerk
Matthew Medill, Public Works Director
Veronica Rodriguez, Human Resources Director
MISSION STATEMENT:
To provide the highest level of service responsive to our community’s expectations and to enhance the quality of life and economic vitality.
THE FOLLOWING INFORMATION IS PROVIDED TO ASSIST WITH PUBLIC PARTICIPATION:
Americans with Disabilities Act (ADA):
In compliance with the ADA, if you need special assistance to participate in this meeting or other services in conjunction with this meeting, please contact the City Clerk’s Office at (916) 434-2490. The meeting room is wheelchair accessible and disabled parking is available. Notification at least 48 hours prior to the meeting or time when services are needed will assist City staff in assuring reasonable arrangements can be made to provide accessibility to the meeting or service.
Agenda Availability:
The main posting location of the City Council Agenda pursuant to the Brown Act, Government Code § 54954.2(a) is on the public kiosk outside the entrance of City Hall, 600 6th Street, Lincoln, California. City Council Agenda Packets are available for review at the City Clerk’s Office, 600 6th Street, Lincoln, California, and “Live and Archived” meetings, minutes and videos are available on the City’s website at www.Lincolnca.gov. City Council Meetings are televised live 6:00PM on Cable channel 18.
Public Input:
Persons wishing to address the City Council are asked to voluntarily complete and submit a speaker card to City staff. Speaker cards are available near the entrance of the meeting location. Persons wishing to address the City Council on an item appearing on this agenda will be called upon at the appropriate time during the item’s consideration. Persons wishing to address the City Council on an item not appearing on the agenda will be called upon during “Public Comment on Non-Agenda Items.” In either case, please stand to be recognized by the Mayor when your name is called. Please note:
comments from the audience without coming to the podium may be disregarded or ruled out of order. All speakers' time will be limited to three (3) minutes, unless extended by the Mayor. All comments or questions should be addressed to the Mayor and in most cases, the City Council is prohibited from discussing or taking action on any item not appearing on the posted agenda, but may engage in brief discussion, provide direction to City staff, or schedule items for future meetings.
Special Meeting Public Input:
Only issues listed on a special meeting agenda may be addressed pursuant to the Brown Act’s regulation of Special Meetings.
Consent Agenda
: All matters on the Consent Agenda are considered routine business and will be enacted by one motion.
There will be no separate discussion of these items unless a member of the City Council requests a specific item be removed from the Consent Agenda for separate action. Any items removed will be considered after the remainder of the Consent Agenda.
Judicial Review
: Pursuant to applicable laws and regulations, including without limitation, California Government Code § 65009 and/or California Public Resources Code § 21177, if you wish to challenge in court any of the decisions made by the City Council, including any action regarding planning, zoning or environmental decisions, you may be limited to raising only those issues you or someone else raised at the public hearing(s) described in this notice/agenda, or in written correspondence delivered to the City at, or prior to, the public hearing.
5.A
Ranch Fire Incident Presentation (Chief Mejia)
600 Sixth Street
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Lincoln, CA 95648
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www.lincolnca.gov
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916-434-2400 2
JURISDICTION OF THE COUNCIL *
All speakers' time will be limited to three (3)
minutes, unless extended by the Mayor. All comments or questions should be addressed to the Mayor and in most cases, the City Council is prohibited from discussing or taking action on any item not appearing on the posted agenda, but may engage in brief discussion, provide direction to City staff, or schedule items for future meetings.
7. CONSENT
8. PUBLIC HEARINGS
9. GENERAL BUSINESS
7.A
Approval of Meeting Minutes of August 12, 2025 Regular City Council Meeting. (Hope Ithurburn)
7.B
Adopt a Resolution Authorizing the City Manager to Approve a Task Order for Construction Management and Inspection Services for City Encroachment Permits with Coastland Civil Engineering, LLP in the Amount Not to Exceed $149,975 for the 2025/26 Fiscal Year. (Michelle Scoma)
7.C
Discuss and Consider Approval of a Resolution Authorizing Issuance of a Response to the Placer County Grand Jury (PCGJ) 2024-2025 Report titled Conflict of Interest Code, Form 700, Ethics Training Compliance: Are Cities in Placer County Compliant? (Kristine Mollenkopf)
7.D
Waive Second Reading and Adopt by Title only an Ordinance Establishing a Development Agreement between the City of Lincoln and Stardust 80, A California Limited Partnership in Association with the Stardust Project. (Mikaela Noble)
7.E
Execute Maintenance Agreement with Caltrans for the Moore Road Class 1 Trail Project. (Roland Neufeld)
7.F
Execute a Task Order with Kimley-Horn for Engineering Services related to the Traffic Signal Analysis & Implementation Project (CIP 692). (Roland Neufeld)
7.G
Adopt a Resolution Designating Mayor Holly Andreatta as the City of Lincoln's Voting Delegate and Mayor Pro Tem Ben Brown as the Alternate at the League of California Cities (Cal Cities) Annual Conference. (Hope Ithurburn)
7.H
Treasurer's Report for the Period Ending June 30, 2025. (Nita Wracker)
7.I
Staff Recommends the City Council Adopt a Resolution Authorizing a Budget Augmentation of $250,000 from the Available Unencumbered Balance of Fund 2410 to CIP 622, Police Department IT Room Expansion Project, and Authorize the City Engineer to Approve Change Orders not to exceed $375,400 for Additional Changes During Construction. (Araceli Cazarez)
7.J
Waive Second Reading and Adopt by Title only an Ordinance acting in its capacity as the legislative body of the City of Lincoln Community Facilities District No. 2025-1 (Joiner Ranch East) authorizing the levy of Special Taxes. (Nita Wracker)
9.A
Lincoln Public Library Funding and Community Aspirations Report from Constructive 600 Sixth Street
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Lincoln, CA 95648
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www.lincolnca.gov
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916-434-2400 3
10. CITY MANAGER REPORTS
11. COUNCIL INITIATED BUSINESS
12. COMMITTEE REPORTS
13. INFORMATION ITEMS
14. ADJOURNMENT
Disruption, Inc. (Kathryn Hunt)
9.B
California Statewide Communities Development Authority (CSCDA) Open PACE Program. (Sean Scully)
9.C
Execute Construction Contract and Construction Management and Inspection Services Contract for Community Center Park Phase 1 Capital Improvement Project (CIP) 637. (Araceli Cazarez)
9.D
Foskett Pump Track Discussion. (Sean Scully)
NOTE:
Materials related to an item on this Agenda submitted to the Council/Redevelopment Successor Agency after distribution of the agenda packet are available for public inspection in the City Clerk's office at 600 Sixth Street, Lincoln, CA during normal business hours. Such documents are also available on the City of Lincoln's website at
https://www.lincolnca.gov/
subject to staff's availability to
post the documents before the meeting.
In compliance with the American with Disabilities Act, the City will provide special assistance for disabled members of the public. The meeting room is wheelchair accessible and disabled parking is available. If you have a disability and need a disability-related modification or accommodation to participate in the meeting, please contact the City Clerk's Office at (916) 434-2490. As a courtesy, please make every effort to inform the Clerk of your needs at least 24 hours prior to the meeting so the City may make reasonable arrangements to ensure accessibility to this meeting.
Pursuant to applicable laws and regulations, including without limitation, California Government Code Section 65009 and/or California Public Resources Code Section 21177, if you wish to challenge in court any of the above decisions (including any action regarding planning, zoning and/or environmental decisions), you may be limited to raising only those issues you or someone else raised at the public hearing(s) described in this notice/agenda, or in written correspondence delivered to the City at, or prior to, the public hearing.
Levine Act Provisions --
The Levine Act requires a party (or the party's agent(s)) to a proceeding before the City of Lincoln that involves any action or consideration to their contract, license, permit, or other entitlement for use, to disclose any campaign contribution made to City elected or appointed officer totaling more than $500 within the 12 months before the City decision. This includes contributions to Councilmembers, Planning Commissioners and members of other City boards and commissions.
600 Sixth Street
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Lincoln, CA 95648
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www.lincolnca.gov
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916-434-2400 4
SUBJECT:
Ranch Fire Incident Presentation (Chief Mejia)
SUBMITTED BY:
City Clerk
DEPARTMENT:
Fire
DATE:
August 26, 2025
Item Number 5.A
STAFF REPORT
5 SUBJECT:
Approval of Meeting Minutes
of August 12, 2025 Regular
City Council Meeting. (Hope Ithurburn)
SUBMITTED BY:
City Clerk
DEPARTMENT:
City Manager's Office
DATE:
August 26, 2025
Item Number 7.A
BACKGROUND/INTRODUCTION:
ATTACHMENTS:
DRAFT - MEETING MINUTES, 8.12.25.docx
STAFF REPORT
6 MINUTES
CITY OF LINCOLN CITY COUNCIL,
PUBLIC FINANCE AUTHORITY
and REDEVELOPMENT SUCCESSOR AGENCY
Regular Meeting
August 12, 2025
OPEN SESSION MEETING
The meeting was conducted in person at City Hall, 600 6 th Street, Lincoln, CA, and virtually on Zoom with a Live Stream on the City of Lincoln YouTube Channel and WAVE Channel 18.
1. CALL TO ORDER by Mayor Andreatta at 6:02 PM.
2. ROLL CALL: Councilmembers present: Mayor Holly Andreatta Ben Brown
Whitney Eklund
Richard Pearl
John Reedy *arrived at 6:32pm.
3. PLEDGE OF ALLEGIANCE – led by Captain Faddis.
4. AGENDA MODIFICATIONS – None.
5. PRESENTATIONS
5.A Badge Pinning and Oath of Office to Newly Appointed Fire Chief Anthony Mejia
Matt Alves, Public Safety Chief introduced Deputy Fire Chief Anthony Mejia and provided Mejia’s background thanking him for his service to the community. Mejia’s wife pinned the badge with Mayor Andreatta administering the oath of office to Fire Chief Mejia.
Fire Chief Mejia thanked his family, Police Chief Alves, the Council, friends, and fellow firefighters with Council also expressing gratitude for his service. A brief discussion following.
5.B Freedom Through Education Presentation
Mayor Andreatta introduced Johnny Lujan, CEO of Freedom Through Education who presented to Council. There was a brief Council discussion. Mayor Andreatta opened the discussion regarding the agenda item with the following providing public comments:
Linda Minor, Lincoln resident
Linda Frnaklin, Lincoln resident
Council provided direction to staff.
6. PUBLIC COMMENT ON NON-AGENDA ITEMS WITHIN THE SUBJECT MATTER
JURISDICTION OF THE COUNCIL
The following provided public comment:
Stan Nader, Lincoln resident
Darla Gutierrez, Lincoln resident
Dr. Leaman, Lincoln resident
7
City Council, Public Finance Authority and
Redevelopment Successor Agency
Regular Meeting Minutes
August 12, 2025
Staff responded to comments. Seeing no further public comments, Mayor Andreatta closed the discussion.
7. CONSENT
Mayor Andreatta asked if any members of the City Council or staff would like to pull any items from the consent agenda with Mayor Andreatta requesting to pull Item 7.B.
7.A Approval of Meeting Minutes of July 22, 2025 Regular City Council meeting.
7.B - *PULLED
7.C Waive Second Reading and Adopt by Title Only ORDINANCE No. 1094B Regulating the Operation of Food Trucks, and Further Finding the Ordinance is Exempt from Environmental Review under the California Environmental Quality Act ("CEQA")
7.D Adopt RESOLUTION 2025-119 Authoring the City Manager to Execute a Contract for Construction with R&R Pacific Construction in the amount of $1,512,120 for the Construction of the I Street Rehabilitation Capital Improvement Project (CIP) 601 and Authorize the City Engineer to Approve Change Orders not to exceed $226,818; (2) Authorize the City Manager to Execute a Contract with UNICO Engineering for Construction Management and Inspection Services in the amount of $363,699.
7.E Waive the Second Reading and Adopt by Title only ORDINANCE No. 1095B Amending Sections of the Lincoln Municipal Code Title 13 - Public Services regarding Water Connection Charges and further finding the Ordinance is Exempt from Environmental Review under the California Environmental Quality Act (CEQA).
Mayor Andreatta opened discussion for the agenda item. Seeing no public comments, Mayor Andreatta called for a motion of approval for the items. Councilmember Pearl motioned to approve, motion was seconded by Councilmember Reedy. Passed by the following roll call vote:
Ayes: Andreatta, Brown, Eklund, Pearl, Reedy
Noes: None
Absent: None
Abstain: None
*7.B Waive Second Reading and Adopt by Title only ORDINANCE No. 1096B Establishing a Development Agreement between the City of Lincoln and Carole S. Leavell Living Trust and Franchimone Family Living Trust in Association with the Leavell Ranch Project, and further finding the Ordinance is Exempt from further Environmental Review under the California Environmental Quality Act
Mayor Andreatta opened discussion for the agenda item. Seeing no public comments, Mayor Andreatta called for a motion of approval for the items. Councilmember Reedy motioned to approve, motion was seconded by Councilmember Pearl. Passed by the following roll call vote:
8
City Council, Public Finance Authority and
Redevelopment Successor Agency
Regular Meeting Minutes
August 12, 2025
Ayes: Brown, Eklund, Reedy
Noes: Andreatta
Absent: None
Abstain: None
8. PUBLIC HEARINGS
8.A Waive First Reading and Introduce by Title only ORDINANCE No. 1097B Establishing a Development Agreement between the City of Lincoln and Stardust 80, A California Limited Partnership in Association with the Stardust project, and further finding the Ordinance is Exempt from further Environmental Review under the California Environmental Quality Act
Mikaela Noble, Associate Planner, presented to City Council. Council discussed with staff responding to comments. Mayor Andreatta opened the discussion for the agenda item. Seeing no public comments, Mayor Andreatta called for a motion.
Councilmember Pearl motioned to approve a resolution, motion was seconded by Mayor Pro Tem Brown. Passed by the following roll call vote:
Ayes: Andreatta, Brown, Eklund, Pearl, Reedy
Noes: None
Absent: None
Abstain: None
8.B Waive First Reading and Introduce by Title Only ORDINANCE No. 1098B Authorizing the Levy of Special Taxes Within City of Lincoln Community Facilities District No. 2025-1 (Joiner Ranch East), Adopt RESOLUTION 2025-120 Establishing City of Lincoln Community Facilities District No. 2025-1 (Joiner Ranch East) and Calling an Election Therein, Adopt RESOLUTION 2025-121 Determining Necessity to Incur Bonded Indebtedness for City of Lincoln Community Facilities District No. 2025-1 (Joiner Ranch East), and Adopt RESOLUTION 2025-122 Certifying Election Results.
Nita Wracker, Assistant City Manager introduced Brian Forbath, Consultant for Stradling Yocca Carlson & Rauth LLP who then presented to Council. There was a brief Council discussion with staff responding to comments. Mayor Andreatta opened the discussion regarding the agenda item.
Seeing no public comments, Mayor Andreatta called for a motion. Councilmember Reedy motioned to approve, motion was seconded by Councilmember Eklund. Passed by the following roll call vote:
Ayes: Andreatta, Brown, Eklund, Pearl, Reedy
Noes: None
Absent: None
Abstain: None
9. GENERAL BUSINESS
9.A Adopt RESOLUTION 2025-123 Amending the Employee Agreements for the City 9
City Council, Public Finance Authority and
Redevelopment Successor Agency
Regular Meeting Minutes
August 12, 2025
Manager and City Attorney, Including Compensation and Benefits Adjustments.
Veronica Rodriguez, Director of Human Resources, presented to City Council. Mayor Andreatta opened the discussion regarding the agenda item.
Seeing no public comments, Mayor Andreatta called for a motion. Councilmember Reedy motioned to approve, motion was seconded by Councilmember Pearl. Passed by the following roll call vote:
Ayes: Andreatta, Brown, Eklund, Pearl, Reedy
Noes: None
Absent: None
Abstain: None
10. CITY MANAGER REPORTS
City Manager Scully provided comments on the appointment of Anthony Mejia to Fire Chief, spoke to the in-house Community Facilities District (CFD) administration and its significance, as well as promoted an upcoming charity golf tournament benefitting our City’s Parks and Recreation program.
11. COUNCIL INITIATED BUSINESS
Mayor Andreatta expressed gratitude to Council and staff for their support for Freedom Through Education proposal.
12. COMMITTEE REPORTS
Councilmember Pearl reported on an upcoming Placer County Air Pollution Control District board meeting. Mayor Andreatta reported attendance at a recent Titan 1-A Missile Restoration Advisory Board (RAB) meeting. Councilmember Reedy reported attendance at a recent LiSWA meeting and Placer County Economic Development Committee meeting.
13. INFORMATION ITEMS
Mayor Andreatta reported on the recent airport hangar groundbreaking event, promoted the upcoming Wings and Wheels event on August 22nd. Councilmember Eklund noted that Leadership Lincoln application submissions have been extended to August 15, 2025.
14. ADJOURNMENT
Mayor Andreatta adjourned the meeting at 7:32pm.
Respectfully submitted by Hope Ithurburn, City Clerk
________________________________________
Hope Ithurburn, City Clerk
10 SUBJECT:
Adopt a Resolution Authorizing the City Manager to Approve a Task Order for Construction Management and Inspection
Services for City Encroachment Permits with Coastland Civil Engineering, LLP in the Amount Not to Exceed $149,975 for the 2025/26 Fiscal Year. (Michelle Scoma)
SUBMITTED BY:
MIchelle Scoma
DEPARTMENT:
Engineering
DATE:
August 26, 2025
Item Number 7.B
STAFF RECOMMENDATION:
Adopt a resolution authorizing the City Manager to approve a task order (See Attachment B) for construction management and inspection services for City encroachment permits with Coastland Civil Engineering, LLP (Coastland), in the amount not to exceed $149,975 for the 2025/26 fiscal year.
BACKGROUND/INTRODUCTION:
An on-call consultant contract with Coastland for professional engineering, construction management, and inspection services was approved on June 28, 2022 by Resolution 2022- 158. The on-call contract was approved through June 30, 2025 with an option to extend for 1- year. On March 5, 2025, the City extended Coastland’s on-call consultant contract for 1-year and the contract is now valid through June 30, 2026.
The City issues a number of encroachment permits that require varying degrees of inspection oversight. Payment for these services is funded by the permit applicants on a fixed-fee or deposit basis, depending on the anticipated working days, and deposited into revenue accounts. Funding for necessary encroachment permit inspection services is accounted for in the Engineering Department’s 2025/27 biennium operating budget.
FINDINGS/ANALYSIS:
Coastland is currently providing effective staff augmentation on projects ranging from encroachment permits to large private development projects. Coastland staff is very
STAFF REPORT
11 knowledgeable in City requirements and has developed relationships with other City departments and staff, promoting efficient communication and good teamwork. Coastland is currently performing construction management and inspection services on multiple development and capital projects that will continue through the 2025/26 fiscal year.
City staff positions include two construction inspectors and one of the positions is currently vacant. The current construction inspector is primarily assigned to providing construction inspection services for City capital replacement projects. The City construction inspector is only able to oversee minor encroachment permits for work anticipated to last up to 2 days.
Therefore, encroachment permit inspections for the larger permits are being handled by Coastland and additional consultants on an as needed basis.
The City of Lincoln currently processes a large number of encroachment permits. These permits range from new water service connections that take a few days to complete, to communication, gas, and electrical utility infrastructure projects that last for months or years.
In order to maintain a consistent system of review, inspection and closeout of permits, and to ensure that the permit applicants perform all work that impact the City’s infrastructure in accordance with adopted standards, the City requires encroachment permit inspectors. The majority of these tasks have been performed by Coastland inspectors who have integrated with the City’s administrative, Public Works and Engineering staff involved in encroachment permits.
ENVIRONMENTAL REVIEW:
This Resolution is not subject to the California Environmental Quality Act (“CEQA”), as codified at
Public Resources Code
§§ 21000,
et seq
., and as further governed by 14
California Code
of Regulations
§§ 15000,
et seq
., because it is not a project as contemplated by 14 C.C.R. § 15378. Even if this Ordinance were subject to CEQA, the City Council finds this Ordinance exempt from the requirements of CEQA pursuant to 14 C.C.R. § 15061(b)(3), because there is no possibility it will have a significant effect on the environment.
FISCAL IMPACT:
Construction management and inspection services for city encroachment permits is covered within the Engineering Department’s Professional Services budget in the 2025/27 Operating Budget. The funding is also fully reimbursed by permittees that apply for encroachment permits.
ATTACHMENTS:
Coastland Encroachment Permit Inspections Task Order-
AttachA.Reso.2025Aug26.mscoma.docx
Coastland Encroachment Permit Inspections Task Order-AttachB.Task Order.2025Aug26.mscoma.pdf
12 Resolution No. 2025-
RESOLUTION 2025-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LINCOLN
AUTHORIZING THE CITY MANAGER TO APPROVE A TASK ORDER WITH COASTLAND CIVIL
ENGINEERING, LLP FOR CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES FOR CITY ENCROACHMENT PERMITS IN THE AMOUNT NOT TO EXCEED $149,975 FOR THE 2025/26
FISCAL YEAR
WHEREAS, on June 28, 2022, an on -call consultant contract with Coastland Civil Engineering, LLP (Coastland) for professional engineering, construction management, and inspection services was approved by Resolution 2022-158 through June 30, 2025 with an option to extend for 1-year; and
WHEREAS, on March 5, 2025, the City extended Coastland’s on -call consultant contract for 1-year through June 30, 2026; and
WHEREAS, Coastland has been providing excellent quality of construction management and inspection services for the City of Lincoln; and
WHEREAS, staff has reviewed the hourly rates submitted by Coastland and considers them fair and reasonable; and
WHEREAS, construction management and inspection services for city encroachment permits is covered within the Engineering Department’s Professional Servi ces budget in the 2025/27 Operating Budget; and
WHEREAS, the funding is also is fully reimbursed by permittees that apply for encroachment permits.
NOW THEREFORE BE IT RESOLVED:
Section 1. The City Council of the City of Lincoln hereby authorize s the City Manager to approve a task order in the amount not to exceed $149,975 for the 2025/26 fiscal year with Coastland Civil Engineering, LLP for construction management and inspection services for City encroachment permits.
PASSED AND ADOPTED this 26th day of August, 2025 by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
13 Resolution No. 2025-
ABSTAIN: Councilmembers:
___________________________
Holly Andreatta, Mayor
ATTEST:
Hope Ithurburn, City Clerk
14 Engineering Department
On-Call Contract for Professional Services
Consultant: Coastland Civil Engineering LLP
Project Name: Encroachment Permit Construction Management and Inspection Services for FY 2025/26
Task Order
Date Requested: July 25, 2025
Purchase Order No. ____________
This Tas
k Order, authorized through the Approved Contract by and between the City of Lincoln (“CITY”), and Coastland Civil Engineering LLP. (“CONSULTANT”), was approved on August 26, 2025, per Resolution No. 2025-______. This Task Order is being requested for the following services (see attachment for the full detailed scope of work).
1. Sub-
task 1: Provide Construction Management and Inspection services for City Encroachment Permits for Fiscal Year 2025/26. This task order will provide funding to support the required construction management and inspection services needed to complete the work.
Consul
tant shall perform services on the project described above. This Task Order shall not be binding until it has been properly signed by both parties. Upon execution, this Task Order shall supplement the Contract as it pertains to the project described above.
Project
Budget –
Proj
ect Budget: $ 149,975.00
Account Code(s): 24806500-50400
The work
described above and herein attached as the Scope of Work is hereby authorized by the following agency representatives.
Approv
ed by: Approved by:
City of Lincoln Coastland Civil Engineering LLP
Signatur
e: ________________________ Signature: _________________________ Name: Vin Cay__________ ____ Name: Travis Williams________________ Title: City Engineer____________ Title: CEO__________________________ Date: _____________________ Date: _____________________ Signatur
e: ________________________
Name: Sean Scully______________
Title: City Manager____________
Date: _____________________
This Tas
k Order Amendment is executed this 26th day of August, 2025. 7/25/25
07/30/25
15 Santa Rosa Auburn Pleasant Hill Fairfield
1400 Neotomas Avenue 11641 Blocker Drive, Ste. 170 3478 Buskirk Avenue, Ste. 1000 420 Executive Court North, Ste. G Santa Rosa, CA 95405 Auburn, CA 95603 Pleasant Hill, CA 94523 Fairfield, CA 94534 Tel: 707.571.8005 Tel: 530.888.9929 Tel: 925.233.5333Tel: 707.702.1961 www.coastland.dccm.com
J
uly 24, 2025
Mi
chelle Scoma
Senior Administrative Analyst
Engineering Department
600 Sixth Street
Lincoln, CA 95648
S
ubject: Scope of Service and Project Budget for Providing Construction Management and Inspection Services for City Encroachment Permits
Dear Michelle,
In response to your request, please accept this letter proposal outlining the scope of services and anticipated budget for providing construction management and inspection services for Lincoln Encroachment Permits.
The City of Lincoln requires an encroachment permit be obtained by all contractors prior to work within the City ROW or PUE. The City receives over 100 encroachment permits throughout the year, ranging from small driveway repairs to miles of new communication line installation.
Coastland | DCCM will assist the City of Lincoln with review of encroachment permit applications, construction oversight and inspection services through completion of the work. Based on our understanding of the City's needs, we have prepared this Scope of Work to meet the City's specific needs.
SCOPE OF WORK
TASK 1 – PERMIT PROCESSING
Coastland | DCCM will review the encroachment permit application for conformance with City Improvement Standards. An estimate of inspectio n effort will be provi ded to assist wit h developing a deposit estimate.
Review of materials, traffic control plans, schedules and interactions with other projects will be performed.
TASK 2 – CONSTRUCTION OVERSIGHT
Andrew will serve as the City’s Construction Manager and interface directly with the applicant as necessary. Services include but are not limited to:
• R
epresent the City at preconstruction and weekly meetings • Schedule and oversee inspection services
• Coordinate operations with Public Services
• Oversee SWPPP compliance
• Work with Lincoln Staff on maintaining accurate deposit accounts • Coordinate any redline drawings
• Oversee project closeout processes including generation and confirmation of the punch list, generation of record drawings and issuance of a Notice of Completion 16 City Encroachement Permits | Page 2
TASK 3 – CONSTRUCTION INSPECTION
Coastland | DCCM will maintain records and provide documentation of the work in the form of daily reports, weekly summary of construction activities, deficiency lists, and progress photographs of construction activities. Daily reports will describe the specific work being accomplished. Coastland | DCCM will also document all deficiencies, important conversations, safety issues or accidents, materials testing performed, environmental concerns and information for “as-built” drawings.
Coastland | DCCM will continually review the specifications and Improvement Standards to ensure the work is of good quality and meets the requirements of the project documents. Coastland | DCCM will immediately report any deviation from the approved project documents.
Our inspectors will:
• Review submittals and requests for information to become familiar with proposed materials, equipment, and construction activities.
• Prepare daily and weekly inspection reports documenting observed construction activities, changed conditions and safety issues; take progress digital photographs, label them and provide to the City through C-MIS; mark up a set of drawings to incorporate contractor record drawing markups; prepare punch lists.
• Coordinate and conduct final inspection.
PERSONNEL
For this project, we propose that Andrew Kellen act as the Construction Manager and Bryce Trumpp for all inspection services. The City of Lincoln is familiar with these individuals as they have provided similar services in the past.
ESTIMATED COST
Based on our scope of work, we are proposing that the services associated with this project be completed for a not-to-exceed amount of $149,975 to be applied as follows:
Role Name Hourly Rate Hours Total
Construction Manager Andrew Kellen $205 35 $7,175
Construction Inspector Bryce Trumpp $195 680 $132,600
Vehicle $15 680 $10,200
Total Anticipated Costs
$149,975
The amount quoted is assuming that all the work for this project will fall under the scope of work as previously described.
We appreciate the opportunity the City of Lincoln has provided us with this project and these services .
Please let us know if you have any questions . We look forward to working with the City to complete this important project.
Regards,
COASTLAND CIVIL ENGINEERING, LLP
Travis Williams, PE
CEO
17 SUBJECT:
Discuss and Consider Approval of a Resolution Authorizing Issuance of a Response to the Placer County Grand Jury
(PCGJ) 2024-2025 Report titled Conflict of Interest Code, Form 700, Ethics Training Compliance: Are Cities in Placer County Compliant? (Kristine Mollenkopf)
SUBMITTED BY:
Kristi McKenney
DEPARTMENT:
City Attorney's Office
DATE:
August 26, 2025
Item Number 7.C
BACKGROUND/INTRODUCTION:
The PCGJ is “an investigatory body made up of citizens with the authority to act as a watchdog on local government, investigate citizen complaints, and assist in criminal matters at the request of the district attorney. The grand jury is part of the county judicial system as authorized by the California State Constitution. It is advised by the Superior Court but is not accountable to elected officials or government employees. Grand jurors are sworn to secrecy, and other than final reports, their work is kept strictly confidential. The report published by the grand jury are how the results of investigations are reported to the public.” (source: Placer Superior Court Grand Jury website.)
On June 24, 2025, the PCGJ issued a report for the 2024-2025 fiscal year, entitled, “Conflict of Interest Code, Form 700, Ethics Training Compliance: Are Cities in Placer County Compliant?,” a copy of which is attached as Exhibit A. The report requests a response not later than September 1, 2025, along with forms provided by the Grand Jury.
FINDINGS/ANALYSIS:
The subject report endeavors to report findings regarding compliance by the cities of Auburn, Colfax, Lincoln, Rocklin and Roseville, and the town of Loomis, with requirements regarding their conflict of interest codes, Form 700 filings, and ethics training compliance. The PCGJ interviewed “at least one representative from each of the six agencies in order to access compliance with Conflict of Interest Code (COIC)/Form 700/Ethics Training.” The PCGJ also reports accessing “numerous websites” including that of the Fair Political Practices Commission (“FPPC”), agency websites and “various applicable California code section websites.” The findings specific to Lincoln are contained on pages 124 and 125 of the subject report.
STAFF REPORT
18 With respect to the City of Lincoln, Lincoln was requested to respond to Findings 8, 10, 12, 17 and 18, as well as recommendations 1 through 6. The forms requested by the PCGJ, based upon the draft response, are attached hereto as Exhibit B. The City’s draft four (4) page response is attached hereto as Exhibit C.
ATTACHMENTS:
Grand_Jury_Report_Resolution.docx
Exhibit A Grand Jury Report 062425.pdf
Grand Jury Response Human Trafficking.doc
Exhibit B PCGJ forms.pdf
Exhibit C DRAFT Grand Jury Response Form 700 compliance et al.doc 19 Resolution No. 2025-
RESOLUTION 2025-
RESOLUTION OF THE CITY COUNCIL OF LINCOLN APPROVING THE RESPONSE TO THE PLACER GRAND JURY REPORT TITLED “CONFLICT OF INTEREST CODE, FORM 700, ETHICS TRAINING COMPLIANCE: ARE CITIES IN PLACER COUNTY COMPLIANT?”
WHEREAS, the Placer Grand Jury issued its 2024-2025 report “Conflict of Interest Code, Form 700, Ethics Training Compliance: Are Cities in Placer County Compliant?”; and
WHEREAS, the reports contain a number of findings and recommendations, and the Placer Grand Jury has requested that the City of Lincoln respond to multiple Findings and Recommendations contained in the report; and
WHEREAS, staff have drafted a response which is attached to this resolution; and
NOW THEREFORE BE IT RESOLVED:
Section 1. The City Council hereby approves the attached response, including forms, to the Placer Grand Jury report and hereby authorizes the City Manager to finalize and execute the draft response and transmit it to the Placer Grand Jury and Presiding Judge.
PASSED AND ADOPTED this 26th day of August, 2025 by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ABSTAIN: Councilmembers:
___________________________
Holly Andreatta, Mayor
ATTEST:
Hope Ithurburn, City Clerk
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City Hall
600 Sixth Street
Lincoln, CA 95648
(916) 434-2400
www.lincolnca.gov
City Manager’s Office Community Development Engineering Fire Library Recreation Police Public Works Support Services
September ___, 2025
The Honorable Alan V. Pineschi
Presiding Judge of the Superior Court
County of Placer
P. O. Box 619072
Roseville, CA 95661
Placer County Grand Jury
11532 B Avenue
Auburn, CA 95603
Attn: Foreperson
RE: Response to 2024-2025 Placer County Grand Jury Report Human Trafficking; An Unseen Crime
Dear Judge Pineschi:
The City of Lincoln ’s Police Department has review ed the 20 24-2025 Placer County Grand Jury Report titled “Human Trafficking: An Unseen Crime,” and hereby submits its response to the findings and recommendations of the Grand Jury as requested.
Findings by the Grand Jury and the City of Lincoln Police Department’s Response
F1: Due to incomplete information regarding human trafficking, there may not be adequate resources dedicated to human trafficking.
Response: Agree.
F8: The Commercial Sexual Exploitation of Children Task Force does not have representatives from all Placer County law enforcement agencies.
Response: Disagree, all Placer County law enforceme nt agencies participate in the CSEC. The exception to participation is the California Highway Patrol, which is a State agency.
42 RE: Response to 2024-2025 Placer County Grand Jury Report “Human Trafficking: An Unseen Crime”
September ___, 2025
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Recommendations by the Grand Jury and the City of Lincoln Police Department’s Response
R1: All Placer County law enforceme nt agencies and Placer County Health and Human Services should increase efforts to identify and record human trafficking cases to better allocate resources by December 31, 2025.
Response: This recommendation h as been implemented. The CSEC Memorandum of U nderstanding, a copy of which is enclosed, sets forth identification and recording procedures.
R2: Placer County Children’s System of Care should encourage the Placer County Probation Department and all Placer County law enforcement agencies within Place r County be included in the Commercial Sexual Exploitation of Children Task Force to improve enforcement, communication, training and recordkeeping by November 1, 2025.
Response: This recommendation h as already been implemente d. The enclosed CSEC Memorandum of Understanding identifies all participating agencies.
* * * * *
This concludes and the City of Lincoln Police Department ’s response to the Grand Jury’s findings and recommendations from its 202 4-2025 report titled “ Human Trafficking: An Unsee n Crime.” Please do not hesitate to contact the undersigned if you have questions regarding this response.
Sincerely,
Matt Alves
Public Safety Chief
Enclosure: CSEC Memorandum of Understanding
cc: Placer County Probation Department
Brian Passenheim
2929 Richardson Drive, Ste. B
Auburn, CA 95603
Stand Up Placer
11985 Heritage Oak Place, Ste. 200
Auburn, CA 95603
Crisis Intervention Services (Sierra Community House)
43 RE: Response to 2024-2025 Placer County Grand Jury Report “Human Trafficking: An Unseen Crime”
September ___, 2025
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948 Incline Way
Incline Village, NV 89451
Child Advocates of Placer County
1430 Blue Oaks Blvd., Ste. 260
Roseville, CA 95747
KidsFirst – Child Abuse Prevention Council of Placer County 516 Gibson Drive, Ste. 100
Roseville, CA 95678
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46 City Hall
600 Sixth Street
Lincoln, CA 95648
(916) 434-2400
www.lincolnca.gov
City Manager’s Office Community Development Engineering Fire Library Recreation Police Public Works Support Services T
July ___, 2025
The Honorable Alan V. Pineschi
Presiding Judge of the Superior Court
County of Placer
P. O. Box 619072
Roseville, CA 95661
RE: Response to 2024-2025 Placer County Grand Jury Report Conflict of Interest, Form 700 and Ethics Training Compliance
Dear Judge Pineschi:
The City of Lincoln has review ed the 2024-2025 Placer County Grand Jury Report titled “Conflict of Interest, Form 700 and Ethics Training Compliance ,” and hereby submits its response to the findings and recommendations of the Grand Jury as requested.
Findings by the Grand Jury and the City’s Response
F8: Auburn, Colfax, Lincoln, Loomis, and Rocklin do not include Assembly Bill 1234 Ethics Training requirements in their conflict of interest codes.
Response to F 8: Ethics training requirements are established by State law, which is incorporated into the City’s conflict of interest code by reference, and do not require separate codification.
F10: Auburn, Colfax, Lincoln, Loomis, and Rocklin do not include enforcement authority in their conflict of interest codes, leaving no defined consequences if a designated individual fails to timely file Form 700 or complete Assembly Bill 1234 Ethics Training.
Response to F 10: The Political Reform Act articulates consequences and the means for enforcement, including oversight by the Fair Political Practices Commission (“FPPC”).
47 RE: Response to 2024-2025 Placer County Grand Jury Report “Conflict of Interest, Form 700 and Ethics Training Compliance” July ___, 2025
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F12: For Colfax, Lincoln and Loomis, incomplete information in recordkeeping for designated Form 700 filers prevented the grand jury from accurately ass essing the timeliness of the findings.
Response to F12: This finding is not a statement of fact, but rather, a conclusory opinion. Lincoln disagrees with this finding. Lincoln’s City Clerk’s office has established internal procedures to document, track , and enforce Form 700 filings as well as ethics training for those designated . Additionally, all Form 700s are publicly available on the FPPC website.
F17: All local agencies’ recordkeeping was difficult to review and often failed to contain necessary information.
Response to F17: This finding is not a statement of fact, but rather, a conclusory opinion. Lincoln disagrees with this finding.
F18: A lack of enforcement authority within all local agencies led to failures to receive timely ethics training.
Response to F18: This finding is not a statement of fact, but rather, a conclusory opinion. Lincoln disagrees with this finding.
Recommendations by the Grand Jury and the City’s Response
R1: Auburn, Colfax, Lincoln, Loomis, and Rocklin review, a mend, and/or adopt their conflict of interest code to specify those positions who shall receive Assembly Bill 1234 Ethics Training pursuant to Government Code section 53234 -53235.2 by October 1, 2025.
Response to R1: Ethics training requirements are est ablished by State law, which is incorporated into the City’s conflict of interest code by reference, and do not require separate codification. Lincoln’s City Clerk’s office has established internal procedures to document, track, and enforce Form 700 filin gs as well as ethics training for those designated. Further, the City Clerk’s office is in the process of increasing public transparency through the use of both DisclosureDocs (form 700 filers) and CampaignDocs (all campaign docs, Form 501, 460, etc.) ; IT solutions that will be publicly available on the City’s website mid-2026. Therefore, this recommendation will not be implemented.
R2: Auburn, Colfax, Lincoln, Loomis, and Rocklin review, amend, and/or adopt their conflict of interest code to specify th e city clerk is the responsible official to administer the Assembly Bill 1234 Ethics Training program, and function as the recordkeeper for ethics training records by October 1, 2025.
48 RE: Response to 2024-2025 Placer County Grand Jury Report “Conflict of Interest, Form 700 and Ethics Training Compliance” July ___, 2025
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Response to R2: Lincoln’s City Clerk’s office has established internal procedures to document, track, and enforce Form 700 filings as well as ethics training for those designated. All records are available via a Public Records Act Request. Form 700 filings are publicly available on the FPPC website as well. Further, the Ci ty Clerk’s office is in the process of increasing public transparency through the use of both DisclosureDocs (form 700 filers) and CampaignDocs (all campaign docs, Form 501, 460, etc.); IT solutions that will be publicly available on the City’s website mid -2026.
Therefore, this recommendation will not be implemented.
R3: Auburn, Colfax, Lincoln, Loomis, Rocklin, and Roseville should specify in their conflict of interest code actionable enforcement authority against individuals who fail to timely file F orm 700 and/or fail to timely receive Assembly Bill 1234 Ethics Training by October 1, 2025.
Response to R3: The Political Reform Act articulates consequences and the means for enforcement, including oversight by the FPPC. This recommendation will not b e implemented.
R4: Colfax, Lincoln, Loomis, and Roseville should create and maintain an annual database for all designated Form 700 filers in alignment with the FPPC filing year by December 31, 2025. The Placer County Grand Jury recommends the database include:
the name of each Form 700 filer, the date of hire or initial service, the type of filing (assuming, annual, leaving), the deadline for filing, the date the form was filed, and whether the filing was timely.
Response to R4: Lincoln’s City Clerk’ s office has established internal procedures to document, track, and enforce Form 700 filings as well as ethics training for those designated. All records are available via a Public Records Act Request. Form 700 filings are publicly available on the FPPC website as well. Further, the City Clerk’s office is in the process of increasing public transparency through the use of both DisclosureDocs (form 700 filers) and CampaignDocs (all campaign docs, Form 501, 460, etc.); IT solutions that will be publicly av ailable on the City’s website mid -2026.
Therefore, this recommendation will not be implemented.
R5: Auburn, Colfax, Lincoln, Loomis, and Rocklin should create and maintain a database of all individuals required to receive Assembly Bill 1234 Ethics Tra ining by December 31, 2025. The Placer County Grand Jury recommends the database include:
the name of each individual required to receive ethics training, the date of hire or the date the position was assumed which required ethics training, the deadline for receiving ethics training (one year/two years), the date ethics training was received, and whether ethics training was timely. The training records should be maintained for five years.
Response to R5: Lincoln’s City Clerk’s office has established in ternal procedures to document, track, and enforce Form 700 filings as well as ethics training for those designated. All records are available via a Public Records Act Request. Form 700 49 RE: Response to 2024-2025 Placer County Grand Jury Report “Conflict of Interest, Form 700 and Ethics Training Compliance” July ___, 2025
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filings are publicly available on the FPPC website as well. Further, the City Clerk’s office is in the process of increasing public transparency through the use of both DisclosureDocs (form 700 filers) and CampaignDocs (all campaign docs, Form 501, 460, etc.); IT solutions that will be publicly available on the City’s websi te mid -2026.
Therefore, this recommendation will not be implemented.
R6: Auburn, Colfax, Lincoln, Loomis, Rocklin, and Roseville should create a plan to increase oversight with a goal to achieve 100% timely Form 700 filings and ethics training, by November 1, 2025.
Response to R6: Lincoln’s City Clerk’s office strives to achieve timely performance, and has established internal procedures to document, track, and enforce Form 700 filings as well as ethics training for those designated. All records are available via a Public Records Act Request. Form 700 filings are publicly available on the FPPC website as well. In fact, the Grand Jury’s report identified no untimely filers for the period evaluated. Further, the City Clerk’s office is in the process of increasing public transparency through the use of both DisclosureDocs (form 700 filers) and CampaignDocs (all campaign docs, Form 501, 460, etc.); IT solutions that will be publicly available on the City’s website by the third quarter of 2026 . Therefore, this recommendation will not be implemented.
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This concludes Mr. Scully and the City’s response to the Grand Jury’s findings and recommendations from its 202 4-2025 report titled “ Conflict of Interest, Form 700 and Ethics Training Compliance .” Please do not hesitate to contact the City if you have questions regarding this response.
Sincerely,
Sean Scully
City Manager
Holly Andreatta, Mayor
City Council
cc: Placer County Grand Jury
Attn: Foreperson
11532 B Avenue
Auburn, CA 95603
50 SUBJECT:
Waive Second Reading and Adopt by Title only an Ordinance Establishing a Development Agreement between the City of Lincoln and Stardust 80, A California Limited Partnership in Association with the Stardust Project. (Mikaela Noble)
SUBMITTED BY:
Mikaela Noble
DEPARTMENT:
Community Development
DATE:
August 26, 2025
Item Number 7.D
STAFF RECOMMENDATION:
Staff recommends that the City Council determine that an Addendum to the Village 1 Specific Plan EIR (SCH #2010102018) for the Stardust project was previously adopted by the City Council, and therefore, no additional environmental review is required; and waive second reading and adopt by title only Ordinance 1097B, establishing a Development Agreement between the City of Lincoln and Stardust 80, A California Limited Partnership in association with the Stardust project for the development of approximately 78 acres within the Village 1 Specific Plan Area.
BACKGROUND/INTRODUCTION:
On August 12, 2025, the City Council waived first reading and introduced by title only Ordinance 1097B, establishing a Development Agreement between the City of Lincoln and Stardust 80, A California Limited Partnership for the development of approximately 78 acres of VLDR-zoned property within the Village 1 Specific Plan Area; and found the Ordinance is exempt from further environmental review under the California Environmental Quality Act (CEQA).
ENVIRONMENTAL REVIEW:
No further environmental analysis is required because the Addendum to the Village 1 Specific Plan EIR (SCH #2010102018) was previously approved and adopted by the City Council was intended to be used in connection with each of the entitlements and subsequent approvals needed for the project consistent with other CEQA policies and requirements applicable to tiered EIRs, and the action is further exempted by CEQA Guidelines Sections 15182 (Projects Pursuant to a Specific Plan) and 15183 (Projects Consistent with Zoning).
FISCAL IMPACT:
Although the City will carry forward a liability, Developers will comply with any outstanding assessment district or community facilities district annexation requirements outlined in the Development Agreement and project Conditions of Approval which serve to offset the cost of
STAFF REPORT
51 services being provided by the City.
ATTACHMENTS:
Ordinance 1097B.pdf
52 Ordinance No.
ORDINANCE 1097B
AN ORDINANCE ADOPTING A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF LINCOLN AND STARDUST 80, A CALIFORNIA LIMITED PARTNERSHIP FOR THE DEVELOPMENT OF APPROXIMATELY 78 ACRES (STARDUST PROJECT) WITHIN THE VILLAGE 1 SPECIFIC PLAN AREA
WHEREAS, the City of Lincoln (“City”) received an application from Stardust 80, A California Limited Partnership (“Developer”) for the Stardust Project Development Agreement; and
WHEREAS, Section 65864, et seq. of the California Government Code provides for the preparation and adoption of amendments to development agreements; and WHEREAS, the proposed Stardust Project includes residential uses and open space consistent with the Village 1 land use designations and applicable development standards for the Stardust Project site; and
WHEREAS, on November 27, 2012, the City Council of the C ity of Lincoln certified the Final Environmental Impact Report (FEIR) for the Village 1 Specific Plan (State Clearinghouse No. 2010102018), which analyzed the environmental impacts of development within the 1,832 -acre Specific Plan project area, including up to 5,639 dwelling units at ranges of 1.0 to 25.0 units per acre. Approximately 985 of the 1,832 acres are dedicated to residential uses with an additional approximately 40 acres of mixed -uses that could include residential development, retail, office, and public/semi -public facilities. Other uses included the existing Turkey Creek Golf Course, open space, parks, an elementary school and city-owned facilities; and WHEREAS, on September 26, 2023, the City Council certified that the FEIR for the Village 1 Specific Plan analyzed changes to the Village 1 land use plan, including the realignment of Oak Tree Lane, associated revisions to the land use designations and a reduction in the total number of residential units to 5,610; and
WHEREAS, all mitigation measures identified within the previously certified EIR shall remain applicable to the proposed Project and will mitigation or avoid significant environmental impacts; and
WHEREAS, the Stardust Project includes the following entitlements: Resolution 2024 - 157 (Addendum), Resolution 2024-158 (Large Lot Tentative Subdivision Map), Resolution 2024 - 159 (Small Lot Tentative Subdivision Map) and this Development Agreement; and WHEREAS, there is no evidence that implementation of the Project Development Agreement would result in any new significant environmental impacts or substantial increases in the severity of significant effects previously identified in the certified Village 1 Specific Plan EIR, as supplemented in 2023, as documented in the Addendum prepared for the Project; and WHEREAS, the City Council conducted a public hearing on this matter on August 12, 2025.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF LINCOLN does ordain as follows:
53 Ordinance No.
Section 1. Incorporation of Recitals. The City Council hereby incorporates by reference the recitals set forth above.
Section 2. Development Agreement . Pursuant to Section 18.84.070 of the Lincoln Municipal Code, the City Council finds and determines as follows:
a. The Development Agreement is consistent with the objectives, policies, general land uses, and programs specified in the City’s General Plan. The Stardust Project will increase the City’s housing stock (Policy LU-1.7) and provide onsite open space (Policy LU-15.18) and pedestrian-friendly circulation that will connect to the City’s ultimate trail network consistent with General Plan policies LU-1.6, Goal T-5, and related policies. b. The Development Agreement is consistent with the objectives, policies, general land uses, and programs specified in the Village 1 Specific Plan (“Specific Plan”) because the Stardust Project will develop residential land uses; provide and connect to utility systems; and provide open space and protect wetlands and other sensitive habitats. c. The Development Agreement is compatible with the uses authorized by the Village 1 General Development Plan (“GDP”) because the proposed project abides by the land use designations and development standards prescribes by the GDP. d. The Development Agreement conforms to public convenience, general welfare, and good land use practices in furtherance of orderly planning efforts. e. The Development Agreement will not be detrimental to the health, safety, and general welfare of persons residing in the immediate area nor be detrimental or injurious to property or persons in the general neighborhood or to the general welfare of the residents of the City as a whole.
f. The Development Agreement will not adversely affect the orderly development of property or the preservation of property values.
g. The Development Agreement is consistent with the provisions of Government Code sections 65864 through 65869.5 because it will vest development rights and assurances to the Developer and will ensure that the Developer will be able to proceed with the development of the Stardust Project in accordance with the City’s rules, regulations, and official policies in effect on the effective date of the Development Agreement, subject to the conditions of approval.
Section 3. CEQA Analysis. 3. The Development Agreement would not result in any new significant impacts or substantially increase the severity of signif icant impacts identified in the previous EIR.
54 Ordinance No.
Section 4. Severability. If any section, sub -section, sentence, clause, phrase or portion of this Ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of comp etent jurisdiction, such decision shall not affect the validity of the remaining portions of the Ordinance. City Council hereby declares that it would have adopted the Ordinance and each section, sub- section, sentence, clause, phrase or portion thereof, irrespective of the fact that any one or more sections, sub -sections, sentences, clauses, phrases or portions to be declared invalid or unconstitutional.
Section 5. Publication. Within fifteen days of passage of this Ordinance, the City Clerk shall cause the full text of the Ordinance, with the names of those City Councilmembers voting for and against the Ordinance, to be published in the Lincoln News Messenger. In lieu of publishing the full text of the Ordinance, the City Clerk, if so directed by the City Attorney and within fifteen days, shall cause a summary of the Ordinance, prepared by the City Attorney and with the names of the City Councilmembers voting for and against the Ordinance, to be published in the Lincoln News Messenger, and shall post in t he office of the City Clerk a certified copy of the City Councilmembers voting for and against the Ordinance. The publication of a summary of the Ordinance in lieu of the full text of the Ordinance is authorized only where the requirements of Government Code § 36933(c)(1) are met.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of Lincoln held on 26
th day of August, 2025, by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ABSTAIN: Councilmembers:
_____
Holly Andreatta, Mayor
ATTEST:
Hope Ithurburn, City Clerk
55 Stardust Development Agreement
DEVELOPMENT AGREEMENT BY AND BETWEEN
THE CITY OF LINCOLN AND STARDUST 80
RELATIVE TO THE DEVELOPMENT KNOWN AS STARDUST
This Development Agreement (“Agreement”) is entered into this ___________day of______, by and between the CITY OF LINCOLN, a municipal corporation (“City”), and STARDUST 80, a California limited partnership (“Developer”), pursuant to California Government Code Section 65864 et seq.
Recitals
A. State Authorization. To strengthen the public planning process, encourage private participation in comprehensive planning and reduce the economic risks of development, the Legislature of the State of California adopted Government Code Sections 65864 et seq. (“Development Agreement Statute”), which authorizes City to enter into an agreement with any person having a legal or equitable interest in real property regarding the development of such property.
B. City Authorization. Pursuant to Government Code Section 65865, City has adopted procedures and requirements for consideration of development agreements which are contained in Lincoln Municipal Code Chapter 18.80. This Development Agreement has been processed, considered and executed in accordance with such procedures and requirements.
C. Property Description. The subject of this Agreement is the development of those certain parcels of land, Assessor's Parcel Number: 021-274-040-000, consisting of approximately 78 acres located within City’s limits as depicted in Exhibit “A” and more particularly described in Exhibit “B” (“Property”), attached hereto and incorporated herein by reference.
D. Developer’s Interest. Developer represents that it has a fee title interest in the Property, and that all other persons holding legal or equitable interests in the Property agree to and shall be bound by this Agreement.
E. Project Description. Developer intends to develop the Property with residential uses, recreation center, trails, and open space uses as depicted in Exhibit “C” attached hereto and in accordance with the General Development Plan.
F. Project Background and Approvals. In addition, on September 26, 2023, by Resolution No. 2023-179, City certified the Supplemental Final Environmental Impact Report for the Village 1 Specific Plan Amendment and by Resolution 2023- 180, approving the Village 1 Specific Plan Amendment (SPA).
1. Environmental Review. In compliance with the California Environmental Quality Act (“CEQA”), on November 27th, 2012, by Resolution No. 2012-195, City certified the Village 1 Spec ific Plan Environmental Impact Report (“EIR”) and adopted a Mitigation Monitoring Program (“MMP”). The City Council finds the Project is consistent with the Specific Plan and that no further environmental documents relating to this Agreement are necessary because there are no substantial changes in the Project or in the circumstances under which the Project is to 56 Stardust Development Agreement
be undertaken, no new information shows that the Project will have any new or substantially more severe impacts or that feasible mitigation measures are available to substantially reduce one or more of the Project’s impacts. Mitigation measures were identified in the EIR and the MMP and are incorporated in the Project and in the terms and conditions of this Agreement, as reflected by the findings adopted by the City Council concurrently with this Agreement.
2. Approved Land Use Entitlements. For the Property, City has approved the following land use entitlements in furtherance of the Project (“Entitlements”):
(a) A General Plan Amendment for the Property to amend the Land Use Diagram in City’s General Plan as approved by Resolution No. 2013-148, dated July 9th, 2013;
(b) A Specific Plan for the Village 1 area adopted by Resolution No. 2012- 197 dated November 27th, 2012 (“Specific Plan”);
(c) Ordinance No. 1070B, dated October 10, 2023, for an Amendment to the Village 1 General Development Plan for development of the Property originally adopted by Ordinance No. 873B, dated December 11th, 2012(“General Development Plan”)
(d) Resolution No. 2023-180, dated October 10, 2023, for an Amendment to the Village 1 Specific Plan for development of the Property (“Specific Plan Amendment”);
(e) A Large Lot Tentative Subdivision Map for the Property adopted by Resolution No._____, dated ______ (“Large Lot Map”);
(f) A Tentative Subdivision Map for the Property adopted by Resolution No. _______, dated _____________ ("Tentative Map") in compliance with the provisions of California Government Code Section 66473.7; and (g) Ordinance No. _______, dated _______, adopting this Agreement (“Adopting Ordinance”).
G. Consistency with General Plan. Having duly examined and considered this Agreement and having held properly noticed public hearings hereon, the City Council has found and hereby declares this Agreement and the Entitlements are consistent with the General Plan and Specific Plan.
H. Commitment of the Parties. By entering into this Agreement and relying thereupon, Developer is obtaining a vested right to develop the Project on the Property in accordance with the terms and conditions of this Agreement. City, at the request of Developer, intends to assist Developer in development of the Project and the public improvements, which are a part of the Project, in accordance with the terms of this Agreement. Development of the Project requires a major investment by Developer in public facilities, substantial front-end investment in on-site and off-site improvements, major dedications of land for public purposes and benefit, and substantial commitment of Developer’s resources to achieve the public purposes and benefits of the Project 57 Stardust Development Agreement
for its future residents and for City. Financing certain public facilities and dedicating land for public benefit are key elements of consideration for City’s execution of this Agreement. In addition, this Agreement provides City with the assurance of implementation of the General Plan and Specific Plan as Developer proceeds with the development of the Property. City recognizes and has determined that granting vested development rights and assurances in a project of this magnitude will assist Developer in undertaking the development of the Project and thereby achieve the public purposes and benefits of the Project. Without said commitments on the part of City, Developer would not enter into this Agreement nor develop the Project.
I. Environmental Mitigation. The parties understand that the EIR was intended to be used in connection with this Agreement and each of the Entitlements listed above. Consistent with the California Environmental Quality Act (“CEQA”), City agrees to use the EIR in connection with the build out of the Project to the maximum extent allowed by law. City agrees to analyze subsequent entitlements and to apply the statutory and other exemptions afforded by CEQA in its sound discretion.
J. Intent of this Agreement. City and Developer desire that the development of the Property pursuant to this Agreement will result in significant benefits to Developer by assurances to Developer that it will have the ability to develop the Property in accordance wi th the Entitlements.
K. Project Benefits. City and Developer desire that the development of the Project pursuant to this Agreement will result in significant benefits to City and Developer by providing Developer with the ability to develop the Property in acc ordance with this Agreement and providing assurances to City that the Property will be developed in accordance with the General Plan and Specific Plan. Consistent with this desire, City has determined that the Project presents certain public benefits and o pportunities, which are advanced by City and Developer in entering into this Agreement. This Agreement will, among other things: (1) reduce uncertainties in planning and provide for the orderly development of the Project; (2) mitigate significant environmental impacts; (3) provide long-term infrastructure solutions and public services; (4) provide market rate housing units; (5) result in the fair-share funding by Developer of critical new city-wide facilities and other infrastructure improvements required to serve the Project; and (6) generate revenue for City and otherwise achieve the goals and purposes for which the Development Agreement Statute was enacted.
NOW, THEREFORE, in consideration of the promises, covenants and provisions set forth in this Agreement, the parties agree as follows:
Agreement
ARTICLE 1
GENERAL PROVISIONS
1.1 Incorporation of Recitals. The preamble, the Recitals, and all defined terms set forth in both are hereby incorporated into this Agreement as if set forth herein in full. Any reference to a section within this Agreement shall be inclusive of all subsections within that section. By way 58 Stardust Development Agreement
of example, a reference to Section 2.1 of this Agreement shall incorporate by way of example Section 2.1.1, Section 2.1.2, Section 2.1.3, and Section 2.1.4.
1.2 Binding Covenants. The provisions of this Agreement, including the Entitlements, shall constitute covenants which shall run with the Property and the benefits and burdens of this Agreement shall be binding upon and benefit the parties and their successors in interest.
1.3 Defined Terms.
“Adopting Ordinance” shall have that meaning set forth in Recital F.2( g) of this Agreement.
“Agreement” shall mean this Development Agreement and any amendments hereto. “CEQA” shall mean the California Environmental Quality Act. “CFD” shall mean Mello -Roos Community Facilities Districts pursuant to and as authorized by Government Code Sections 53311 et seq.
“Changes in the Law” shall have the meaning set forth in Section 1.17. “City” shall mean the city of Lincoln, California and shall include, unless otherwise provided, City’s agencies, departments, officials, employees and consultants. “City Acknowledgments” shall have the meaning set forth in Section 2.9. “Community Development Director” shall mean the Director of City’s Department of Community Development or his or her designee.
“Developer” shall have that meaning set forth in the preamble and shall further include, unless otherwise provided, Developer’s successors, heirs, assigns, and transferees. “Development Agreement Statute” means California Government Code Sections 65864 et seq.
“Effective Date” shall have the meaning set forth in Section 1.5.1. “EIR” shall mean the environmental impact report described in Recital F.1 and prepared for the Specific Plan pursuant to CEQA.
“Entitlements” shall have the meaning set forth in Recital F.2 of this Agreement and shall also include, for purposes of this Agreement, any Subsequent Entitlements approved by City.
“Exactions” means all development impact fees, connection or mitigation fees, taxes, assessments and other exactions required by City to support the construction of any public facilities and improvements or the provision of public services in relation to development of the Property.
“Financing Plan Reimbursement Fee” shall have the meaning set forth in Section 59 Stardust Development Agreement
3.2.2. “General Development Plan” shall have the meaning set forth in Recital F.2(c) of this Agreement.
“General Plan” means City’s 2050 General Plan adopted on March 25, 2008, by City Council Resolution No. 2008-048, together with all amendments thereto made prior to the Effective Date of this Agreement.
“Infrastructure Financing Plan” (IFP) shall mean the Lincoln Village 1 Infrastructure and Public Facilities Financing Plan, including Volumes 1 and 2, adopted by the City Council on September 13, 2016, by Resolution No.2016-181 as updated in accordance with the terms thereof.
The Infrastructure Financing Plan and any subsequently approved amendments are incorporated into this Agreement by this reference.
“Large Lot Map” shall mean the Large Lot Tentative Subdivision Map for the Project as set forth in Recital F.2(e).
“Lender” shall mean the beneficiary under a deed of trust or the mortgagee under a mortgage, or any other person or entity who has advanced funds to, or is otherwise owed money by a debtor, where the obligation is embodied in a promissory note or other evidence of indebtedness, and where such promissory note or other evidence of indebtedness is secured by a mortgage or deed of trust encumbering the Property or a portion thereof. “Master Plan” shall have the meaning set forth in Section 3.5. “Mitigation Fee Act” means California Government Code Sections 66000 to 66025 (AB 1600).
“MMP” shall mean the Mitigation Monitoring Program described in Recital F.1 and adopted in conjunction with the EIR.
“Non-Potable Water” shall mean raw water or reclaimed water. “Non-Participating Landowners” shall mean landowners who did not advance-fund the costs to prepare the Infrastructure Financing Plan, but whose properties will be benefitted by public improvements constructed by or funded by the Participating Developers through participation in the Infrastructure Financing Plan.
“Open Space Preservation Areas” shall have the meaning set forth in Section 2.6.4. “Permitted Delay” shall have the meaning set forth in Section 5.3. “Participating Developers” shall mean Lake Development and the Village 1 Ownership Group, which is comprised of Silverado Hidden Hills LLC, Leavell Ranch Partnership, East Lincoln Associates LLC, Sunset Tartesso LLC, and Bella Rosa LLC, all of whom advance- funded the costs to prepare the Infrastructure Financing Plan and are eligible for reimbursement through the Financing Plan Reimbursement Fee.
60 Stardust Development Agreement
“Permitted Delay Notice” shall have the meaning set forth in Section 5.3. “PFE Fee” shall have the meaning set forth in Section 3.1. “PFE Fee Policy” shall have the meaning set forth in Section 3.1. "PFE Fee Program" shall have the meaning set forth in Section 3.1. “Plan Area Fee” shall have the meaning set forth in Section 3.2.1. “Plan Area Fee Program” shall have the meaning set forth in Section 3.2.1. “Project” means the overall development of the Property pursuant to this Agreement and the Entitlements.
“Property” means those parcels depicted in Exhibit “A” and more particularly described in Exhibit “B” as set forth in Recital C of this Agreement. “Public Improvements” shall have the meaning set forth in Section 2.2. “Specific Plan” (SP) means the Village 1 Specific Plan adopted by the City Council on November 27th, 2012 as set forth in Recital F.2(b).
“Specific Plan Amendment” (SPA) means the Village 1 Specific Plan Amendment adopted by the City Council on September 26, 2023, by Resolution 2023-179. “Subsequent Entitlements” shall mean all additional and further land use entitlements approved for development of the Property by City following the date of City’s approval of this Agreement.
"Tentative Map" means the Tentative Subdivision Map for the project as set forth in Recital F.2(f).
“Term” shall have the meaning set forth in Section 1.5.1. “Transfer Agreement” shall have the meaning set forth in Section 1.9.1(a). “Zoning Ordinance” shall mean City’s zoning ordinance contained in Title 18 of City’s Municipal Code.
1.4 Interest of Developer. Developer is the fee owner and holds a lega l interest in the Property and all portions thereof and all other persons holding legal or equitable interests in the Property are to be bound by this Agreement. Notwithstanding anything set forth in this Agreement to the contrary:
(a) Subject to Section 1.19 regarding the timing of development, the Property shall be developed in accordance with this Agreement as set forth herein. 61 Stardust Development Agreement
(b) Developer is not obligated by the terms of this Agreement to affirmatively act to develop all or any portion of the Property, pay any sums of money, dedicate any land (except as set forth in this Agreement), indemnify any party, or to otherwise meet or perform any obligation with respect to the Property, except and only as a condition to the development of any portion of the Property and even then only to the extent that such act or obligation is necessitated by and in proportion to Developer's development of that portion or phase of the Property. (c) Any development of a portion of the Property shall be subject to the terms of this Agreement, and all the rights, duties, and obligations of both parties to this Agreement shall pertain to such Property.
1.5 Term.
1.5.1 Term. The term of this Agreement shall commence upon _______[insert date] (“Effective Date”) and shall extend for a period of twenty (20) years from the Effective Date (“Term”).
1.6 Termination. This Agreement shall be terminated and of no further effect upon the occurrence of any of the following events:
(a) Expiration of the Term;
(b) Completion of the Project in accordance with the Entitlements and City’s issuance of all required occupancy permits and acceptance of all dedications and improvements required under the Entitlements and this Agreement;
(c) For any specific residential dwelling or other structure within the Project, this Agreement shall automatically be terminated upon the issuance by City of a certificate of occupancy for such dwelling or other structure;
(d) Entry of final judgment (with no further right of appeal) or issuance of a final order (with no further right of appeal) directing City to set aside or withdraw City’s approval of this Agreement or any material part of the Entitlements; or (e) The effective date of a termination as provided in Article 6 of this Agreement.
1.6.1 Notice of Termination. City shall, upon written request made by Developer to City ’s Community Development Director, determine if the Agreement has terminated with respect to any parcel or lot at 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 Developer ’s request record a notice of termination that the Agreement has been terminated as to that parcel or lot at the Property. The aforesaid notice may specify, and 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 at the Property shall not affect Developer ’s rights or obligations under any of the Entitlements and Subsequent Entitlements, including but not limited to, the General Plan, Specific Plan, Zoning Ordinance and all other City policies, regulations and ordinances a pplicable to the Project or the Property, 62 Stardust Development Agreement
including such rights set forth in Article 4, including but not limited to the right to secure PFE Fee credits or Plan Area Fee credits and any and all reimbursements due to Developer from Non - Participating Landowners. City may charge a reasonable fee for the preparation and recordation of any notice(s) of termination requested by Developer.
1.7 Amendment of this Agreement. This Agreement may be amended from time to time, in whole or in part by mutual written consent of the parties hereto or their successors in interest, and as follows:
(a) Minor Amendments . Any Amendment to this Agreement, or the Infrastructure Financing Plan, meeting the provisions of Lincoln Municipal Code Section
18.84.100 and which can be processed under CEQA as exempt from CEQA, or with the preparation of a Negative Declaration, shall be a minor amendment and shall not require a noticed public hearing prior to the parties executing an amendment to this Agreement, except as otherwise required by state law; provided, however, that City shall retain discretion to hold a public hearing if it so chooses.
(b) Substantial Amendments. Except as otherwise described in Section 1.7(a), amendments to this Agreement shall require notice and a public hearing pursuant to California Government Code Section 65868.
(c) Parties Required to Amend . Where a portion of Developer’s rights or obligations have been transferred, assigned, and assumed in accordance with this Agreement, the signature of the person or entity to whom such ri ghts or obligations have been assigned shall not be required to amend this Agreement unless such amendment would materially alter the rights or obligations of such assignee, provided thirty (30) days’ prior written notice of any amendment is provided to such person or entity by the amending parties. In no event shall the signature or consent of any non-assuming assignee be required to amend this Agreement.
1.7.1 Effect of Amendment. Any amendment to this Agreement shall be operative only as to those specific portions of this Agreement expressly subject to the amendment, with all other terms and conditions remaining in full force and effect without interruption. No amendment to this Agreement shall be effective unless contained in a writing executed by both Cit y and Developer, or their successors in interest.
1.8 Project Approval Amendments . To the extent permitted by state and federal law, any Entitlement may, from time to time, be amended or modified in the following manner:
1.8.1 Minor Amendments. Amendments to the Spe cific Plan shall comply with Section 7.6.2 thereof. Amendments to the General Development Plan shall comply with Section
4.4 thereof. For amendments or modifications to any Entitlement or Subsequent Entitlement (other than this Agreement), the Specific Plan, or the General Development Plan, Developer may submit a written request for amendment or modification to the Community Development Director. The Community Development Director or his/her designee shall determine whether the requested amendment or modification is a minor amendment or modification that may be approved by the Community Development Director without notice or public hearing. For purposes of this section only and by way of example, minor modifications or amendments include changes in pedest rian paths; amendments to lot patterns and street alignments which will not have a substantial or 63 Stardust Development Agreement
material impact on the circulation system as described for each village area in the Specific Plan; minor changes in landscaping for any landscaping shown on a final map or landscape plan; variations in the location of lots or home sites that do not substantially alter the design concepts of the Project; reductions in the number of lots or home sites that do not substantially alter the design concepts of the Project; and variations in the location or installation of utilities and other infrastructure connections or facilities that do not substantially alter the design concepts of the Project. Notwithstanding the foregoing, City retains the exclusive right to make the determination, in its own discretion, as to whether a modification or amendment constitutes a minor modification or amendment or requires an amendment in accordance with Section 1.8.2 below. The Community Development Director and/or the City Manager shall retain the right and discretion to present any amendment or modification to City’s Planning Commission and/or City Council for approval at a noticed public hearing and/or a public meeting of those legislative bodies.
1.8.2 Substantial Amendments. Any request of Developer for an amendment or modification to an Entitlement or Subsequent Entitlement (other than this Agreement) which is determined by City not to be a minor amendment as set forth in Section 1.8.1 above shall be subject to the provisions of review, consideration and action pursuant to the Specific Plan, General Development Plan, and other applicable law.
1.8.3 Vesting of Entitlements Made By Amendments. In the event of any change to any Entitlement or Subsequent Entitlement made pursuant to Sections 1.8.1 or 1.8.2 above, the change to such Entitlement or Subsequent Entitlement shall be vested for the then remaining duration of the Term of this Agreement, or the period of time allowed by applicable statute, whichever is longer.
1.8.4 Subsequent Appr ovals; Application of Agreement . City shall accept for processing and review any and all applications submitted by Developer for land use entitlements necessary or convenient for the exercise of Developer's rights under the Entitlements for the use and development of the Property.
1.9 Assignment of Interests, Rights and Obligations . Developer may assign all or any portion of its interests, rights or obligations under this Agreement to third parties acquiring an interest or estate in the Property or any portion thereof in accordance with the provisions of this Article.
1.9.1 Transfer Agreements.
(a) In connection with the transfer or assignment by Developer of all or any portion of the Property, Developer and the transferee shall enter into a written agreement in the form attached hereto as Exhibit “D” (“Transfer Agreement”) regarding the respective interests, rights and obligations of Developer and the transferee in and under this Agreement. Such Transfer Agreement shall: (i) release Developer from obligations under this Agreement, as described in the Transfer Agreement, provided that the transferee expressly assumes such obligations; (ii) transfer to the transferee rights under this Agreement; and (iii) address any other matter deemed by Developer to be necessary or appropriate in connection with the transfer or assignment. Transferor shall, within ten (10) days of the execution of the Transfer Agreement, provide City notice of the transfer pursuant to the notice provisions of this Agreement. Upon recordation of any Transfe r Agreement in the Official Records of Placer County, Developer shall be automatically released 64 Stardust Development Agreement
from those obligations assumed by the transferee therein. No breach or default hereunder by any person succeeding to any portion of Developer’s obligations unde r this Agreement shall be attributed to Developer, nor may Developer’s rights hereunder be canceled or diminished in any way by any breach or default of any transferee.
1.9.2 Non-Assuming Transferees . Except as otherwise elected by Developer, upon the sale of any parcel for which all public improvements required for the development thereon have been completed (or for which public improvements adequate financial security for the completion thereof has been posted by Developer and accepted by City) and any financing districts required to include such parcel hereunder have been formed, then the burdens, obligations and duties (but not the rights) of Developer under this Agreement as to such conveyed parcel shall terminate with respect to such transferee. In such event, a Transfer Agreement shall not be required in connection with the conveyance of such parcel and the assignment of the rights, without the obligations, under this Agreement. Nothing in this Section shall exempt any property transferred from payment of applicable fees and assessments or compliance with applicable conditions of approval.
1.10 Notices. All notices required or provided for under this Agreement shall be in writing and shall be sent by: (i) U.S. mail first class postage prepaid with return receipt requested; (ii) by overnight courier or hand delivery; or (iii) by facsimile with original forwarded by U.S.
Mail, addressed as follows, with email copies provided to the email addresses below:
Notice to City: City of Lincoln
Attention: City Manager
600 6th Street
Lincoln, CA 95648
Telephone: 916.434.2490
Facsimile: 916.645.8903
Email: [email protected]
Notice to Developer: Stardust 80
P.O. Box 1305
Loomis, CA 95650
Attention: Clifford Stokes
Telephone: (916) 712-7610
Email: [email protected]
Notice shall be effective when the postal authorities indicate the mailing was delivered, the date delivered in person, or upon receipt of the entire document by the receiving party’s fax machine, as evidenced by the sending party’s facsimile confirmation report.
1.11 Development Agreement Controls. In the event of any inconsistency between the terms and provisions of this Agreement, the Specific Plan, the General Development Plan, t he Large Lot Tentative Map conditions of approval, and/or the conditions of approval for any Small Lot Tentative Subdivision Map for the Project, the terms and provisions of this Agreement shall control. Developer acknowledges the obligations imposed by the Infrastructure Financing Plan, as 65 Stardust Development Agreement
amended from time to time, impose separate and distinct obligations that are binding upon Developer.
1.12 Vested Rights. Except as set forth in Sections 2.4, 2.5, 2.6, and 2.7, Developer shall have the vested right to proceed with development of the Property in accordance with the Entitlements, and to have Subsequent Entitlements considered for approval or denial, based upon the terms, standards and requirements set forth in the Entitlements. It is the intent of City and Developer that Developer’s vested rights shall include: (i) the permitted land uses, density and intensity of use, timing or phasing of development, zoning, provisions for reservation or dedication of land for public purposes, the maximum height and size of proposed buildings, the location and size of public improvements, and the design, improvement, and construction standards and specifications applicable to development of the Property all as set forth in the Entitlements and in this Agreement; and (ii) all other terms and conditions of the development of the Project as set forth in the Entitlements and in this Agreement. Any amendments to this Agreement will affect only those sections amended and shall not affect any other term of this Agreement.
1.13 Extension of Entitlements and Subsequent Entitlements . Pursuant to Government Code Section 66452.6, all vesting tentative subdivision maps, vesting tentative parcel maps, parcel maps, tentative subdivision maps, planned unit development permits, specific development permits, special permits, general development plans or any other maps, zonings, re-zonings or land use entitlements of potentially limited duration previously, contemporaneously or subsequently approved by City for the Property subject to this Agreement shall be valid for a minimum term equal to the Term of this Agreement, or for a period of forty -eight (48) months, whichever is longer, but in no event for a period shorter than the maximum period of time permitted by the California Subdivision Map Act or Government Code for such land use entitlements.
1.14 Rules, Regulations and Policies. Except as set forth in Sections 1.16, 1.17, 1.18 and
1.19, below, the rules, regulations, policies, ordinances, and resolutions of City governing the development of the Projec t, including permitted uses of the Property, density, and design, improvement, and construction standards and specifications, shall be those in force on the Effective Date of the Agreement and as contained in the Entitlements and this Agreement. In the event of any conflict between the provisions of this Agreement and any ordinance, resolution, rule, regulation or policy of City, the provisions of this Agreement shall control.
1.15 Application of Subsequently Enacted or Modified Rules, Regulations and Ordinances. City may, during the Term of this Agreement, apply such City -enacted or modified rules, regulations, ordinances, laws, and official policies including improvement and construction standards and specifications and plans adopted or modified after the date of this Agreement which are not inconsistent with or in conflict with the Entitlements or this Agreement, are applied uniformly to all similar properties, or otherwise do not prevent development of the Project in accordance with the Entitlements and the terms of this Agreement. (a) Should an ordinance or resolution or other measure be enacted, whether by action of the City Council, by initiative, referendum or otherwise which is in conflict with or reduces Developer’s vested development rights as provided in the Entitlements and/or this Agreement, City agrees that such ordinance, resolution or other measure shall not apply to the 66 Stardust Development Agreement
Project, or any development thereof, or construction related thereto, or construction of improvements necessary therefore.
(b) Should an ordinance or resolution or other measure be enacted, whether by action of the City Council, by initiative, referendum or otherwise which relates to the rate, timing or sequencing of the development or construction of the Project, including, but not limited to, development no-growth or slow growth moratoria, to the extent any such measure is inconsistent with or conflicts with the Entitlements and/or this Agreement, City agrees that such ordinance, resolution or other measure shall not apply to the Project, or any development thereof, or construction related thereto, or construction of improvements necessary therefore. (c) Should any initiative, referendum, or other measure be enacted, and any failure to apply such measure to the Property by City is legally challenged, Developer agrees to fully defend, indemnify and hold the City harmless against such legal challenge with legal counsel selected by City, including providing all necessary legal services, bearing all reasonable costs therefore, and otherwise holding City harmless from all costs and expenses reasonably incurred by City in connection with such legal challenge and litigation, but only if City’s failure to apply any such measure to the Property was at the written request of Developer. In addition, if Developer is not named as a party in any such litigation, City agrees that it will support Developer's efforts to intervene in any such litigation if Developer should choose to do so. (d) Without limiting the terms of Section 1.12 or 1.17, by virtue of this Agreement, Developer is being given the vested right to develop the Project without having to comply with the terms and provisions of any future City-enacted inclusionary housing ordinance, affordable housing ordinance, or similar ordinance that would require 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.
1.16 Uniform Building Code and Improvement Standards . Except as otherwise specifically set forth in this Agreement, and provided they have been adopted by City and are in effect on a city -wide basis, City may apply to the Property, at any time during the Term of this Agreement, the then current City Improvement Standards and Design Criteria, California Uniform Building Code (“UBC”), and any other uniform construction codes as approved by City.
1.17 State and Federal Law . As provided in California Government Code Section 65869.5, this Agreement shall not preclude the application to the Property of changes in law , permits, regulations, plans or policies, design criteria and improvement standards to the extent that such changes are specifically mandated and required by changes in state or federal laws, regulations or permits (“Changes in the Law”). In the event Changes in the Law prevent or preclude compliance with one or more provisions of this Agreement by either party hereto, such provisions of this Agreement shall be modified or suspended or performance delayed, as may be necessary to comply with C hanges in the Law, and City and Developer shall meet and confer in good faith to determine whether the Changes in the Law apply to the Property and whether an amendment to this Agreement is necessary in light of the Changes in the Law. City and Developer shall take such action as may be necessary to meet the minimum requirements of such state or federal law, rule or regulation in a manner which is consistent with the original intent and rights and obligations originally placed on each party by this Agreement. In the event City and 67 Stardust Development Agreement
Developer, after having engaged in good faith negotiations, are unable to agree on any amendment, they shall consider whether suspension of the Term of this Agreement is appropriate, and if so, what the terms and conditions of any such suspension should be. In the event City and Developer, after having engaged in good faith negotiations are unable to agree on the suspension issues, then Developer shall have the right to terminate this Agreement by giving City sixty (60) days’ written notice of termination. Developer or City shall have the right to institute litigation relating to the Changes in the Law, and raise any issues regarding the validity of the Changes in the Law. If such litigation is filed, this Agreement shall remain in full force and effect until final judgment is issued.
Provided, however, that if any action that City would take in furtherance of this Agreement would be rendered invalid, facially or otherwise, by the Changes in the Law, City shall not be required to undertake such action until the litigation is resolved, or the Changes in the Law are otherwise determined invalid, inapplicable, or are repealed. In the event that such judgment invalidates the Changes in the Law or determines that it does not affect the vali dity of this Agreement, this Agreement shall remain in full force and effect, and its Term shall be extended by the amount of time between the effective date of the Changes in the Law, and the effective date of the judgment.
In the event that such judgment determines that the validity of this Agreement is, directly or indirectly affected by the Changes in the Law, then the provisions of this Section shall apply.
1.18 Health and Safety Measures . Notwithstanding anything to the contrary contained in this Agreement, nothing herein shall be construed to limit City’s general police power to implement, based upon appropriate and adequate findings, specific measures necessary to alleviate legitimate and bona fide harmful and noxious uses, or protect against threats to t he health and safety of City residents as determined by the City Council, in which event any rule, regulation or policy imposed on the development of the Property shall be done to the minimum extent necessary to correct such bona fide harmful and noxious uses or protect against dangerous threats to the health and safety of City residents.
1.19 Development Timing. This Agreement does not require Developer to proceed with development of the Property or to initiate or complete development of any phase of the development of the Property or any portion thereof within any period of time set by City. City acknowledges the timing of development of the Property shall be in Developer’s sole and absolute discretion. No future modification of City’s municipal code or any ordinance or regulation which limits the rate of development over time shall be applicable to the Property.
1.20 Phasing. Developer may choose the size of and file phased small lot final maps for the Project. However, if Developer files a small lot final map consisting of less than ten (10) acres, Developer shall be required to pay the Plan Area Fee for a minimum of ten (10) acres until such time as Developer has met its obligations under the Plan Area Fee Program.
ARTICLE 2
DEVELOPER OBLIGATIONS
2.1 Fee Obligations. Subject to certain fee credits and/or fee reimbursements as set forth in Article 4, Developer shall pay only those Exactions listed in Exhibit “ E” hereto and fees identified in this Agreement including, but not limited to the fees identified in this Article. Except as otherwise provided herein, any and all required payments of fees or Exactions shall be made at the time and in the amount specified by the applicable City programs or ordinances. Nothing in 68 Stardust Development Agreement
this Agreement shall constitute a waiver of Developer’s right to challenge the legality of the amount of, allocation of, or any future increases in, the Exactions applied to the Property.
2.2 Public Improvements . Developer agrees, subject to the requirements and limitations of certain fee credits and/or fee reimbursements as set forth in Article 4, unless already constructed, to construct and/or finance those public infrastructure improvements necessary to serve the Project as per the Large Lot Tentative Map conditions of approval, and/or the conditions of approval for a ny Small Lot Tentative Subdivision Map for the Project, and as set forth in the Infrastructure Financing Plan (“Public Improvements”). Each of the Public Improvements shall be designed and constructed to City’s specifications in effect at the time plans ar e submitted to City for approval, except as may be otherwise provided in Sections 1.14 and 1.15 below. Subject to Section 1.19 regarding the timing of development, the timing for completion of the Public Improvements shall be as set forth in the Infrastructure Financing Plan.
2.3 Water.
2.3.1 Water Facilities . Developer shall construct, with the construction of the Roadway Frontage, a 12 -18” water transmission main along t he frontage of the Project, and to connect Highway 193/ McBean Park Drive, where not already constructed by others, as outlined in the Infrastructure Financing Plan and as per the Large Lot Tentative Map conditions of approval, and/or the conditions of approval for any Small Lot Tentative Subdivision Map for the Project .
Developer shall design and construct a waterline within the Oak Tree Lane extension from McBean Park Drive through the Project site and a temporary (interim) waterline that will loop from the south boundary of the Stardust Project (the north boundary of the Leavell property) to the eastern termination of the Hidden Hills project, creating a looped waterline through Oak Tree Lane and McBean Park Drive, unless portions of such waterline section are constructed by others.
2.3.2 Water Supply. City acknowledges and agrees that Developer’s payment of the applicable City water fees for the Project will provide City with the means to furnish an adequate supply of water for the needs of the Project.
2.3.3 Groundwater. City shall continue to utilize and expand its existing groundwater system to reduce peaks and as an emergency back-up supplement to its surface water supply. In furtherance of City ’s ability to develop its groundwater resources, Developer hereby agrees to dedicate to City all rights to the groundwater underlying the Property. The dedication of such groundwater rights shall take place prior to approval of the first final large lot map and/or small lot final map for the Project and shall be in a form acceptable to the City Attorney.
2.3.4 Water Supply Verification . City acknowledges and agrees that Developer has complied with the terms of California Government Code Section 66473.7 for the Project.
2.4 Drainage. Developer shall design the drainage system for the Project in accordance with all applicable regulations and criteria, including hydro modifications associated with Phase 2 of the Municipal General NPDES Permit currently in force and in accordance with the Village 1 Master Drainage report.
2.5 Wastewater. Developer shall construct backbone infrastructure improvements including a sewer lift station for collection system (gravity sewer mains, sewer pump station, and 69 Stardust Development Agreement
force mains) necessary to serve the Project and in accordance with the Infrastructure Finance Plan.
Developer shall be entitled for 3rd party reimbursement from parties benefitting from a lift station, if it is not part of the Infrastructure Financing Plan.
2.6 Parks and Open Space.
2.6.1 Park Dedication and Fee Requirements. City requires Developer to provide neighborhood parks and regional parks for recreational activities at the Property based upon the ratios and population factors per land density set forth in the Specific Plan.
2.6.2 Satisfaction of Regional Park Obligations . City hereby agrees and acknowledges that Developer ’s payment of the PFE Fee regional park fee component and Plan Area Fee regional park land acquisition fee component shall fully satisfy Developer ’s regional park obligations.
2.6.3 Satisfaction of Neighborhood Park Obligations. Developer’s neighborhood park obligations shall be satisfied by a payment of Plan Area Fees . Developer shall pay the neighborhood park development fee component and the neighborhood park land acquisition fee component of the Plan Area Fee in accordance with the Infrastructure Financing Plan. Developer shall receive credit toward any on-site park being dedicated with the small lot final map.
2.6.4 Open Space Preservation Areas . City, and or local, State, or Federal regulatory agencies, including but not limited to the United States Army Corps of Engineers may require Developer to preserve open space and/or enhanc e wildlife habitat and wetland mitigation areas in designated open space areas at the Project (“ Open Space Preservation Areas ”). If the regulatory agency requires compensatory mitigation and monitoring, such as wetland creation, riparian plantings, or oak tree plantings, Developer shall complete any required monitoring and maintenance of the Open Space Preservation Areas until the end of the agency - required monitoring period. City shall accept, maintain, and monitor the Open Space Preservation Areas after the end of the agency-required monitoring period provided: (1) Developer has prepared and submitted a baseline condition report that verifies the habitat has been established to the agencies or agencies’ satisfaction; and (2) City and/or Developer has established a financing mechanism for ongoing maintenance of the Open Space Preservation Areas consistent with Section 3.7.2. If compensatory mitigation and monitoring are not required, Developer may transfer ownership of the Open Space Preservation Area prior to recordation of a final map provided City has approved a baseline condition report and Developer has established an adequate funding mechanism for the ongoing maintenance of the Open Space Preservation Area. Open Space Preservation Areas shall be consistent with City ’s current overall open space management plan, provided nothing herein shall require Developer to violate the terms and conditions of its permit(s) applicable to said Open Space Preservation Areas. Additionally, City hereby agrees that as part of its negotiations with the United States Army Corps of Engineers regarding its overall open space management plan, City will request a provision allowing it to accept Open Space Preservation Areas established under existing permits, and to maintain said Open Space Preservation Areas pursuant to the terms and conditions of its overall open space management plan. In addition, City will adhere to recently approved and adopted Placer County Conservation Plan (PCCP) and any final permit requirements with the PCCP obtained permit.
70 Stardust Development Agreement
2.6.5 Trails. Developer shall construct trail facilities as shown on the Tentative Map, with the improvement plans associated with the final map of which the trail facility is a part.
2.7 Oak Tree and Swainson’s Hawk Mitigation. Developer shal l mitigate for the potential impacts to oak tree resources and Swainson’s Hawk foraging area as provided in the EIR.
Provided that such a plan is available, Developer may , in its sole discretion, provide mitigation through the payment of fees for the Foot hill area pursuant to the Placer County Habitat Conservation Plan. Payment of mitigation fees into the Placer County Habitat Conservation Plan for Swainson’s Hawk and oak tree mitigations, if available, shall satisfy the mitigation requirements for those items in the Village 1 EIR.
2.8 Infrastructure, Maintenance and Public Services Finance.
2.8.1 Infrastructure Finance. As further set forth in the Tentative Map conditions of approval and Infrastructure Financing Plan, prior to approval of a small lot final map, upon request by Developer, City and Developer will cooperate to establish one or more CFDs to fund the Public Improvements. Developer may also utilize the Statewide Community Infrastructure Program (“SCIP”) or Bond Opportunities for Land Development (BOLD) Community Facilities District (CFD) Financing Program to fund the Public Improvements. To the extent the costs of the Public Improvements exceed the proceeds from CFDs or other financing mechanism(s), Developer shall be solely responsible for such shortfall.
(a) Infrastructure CFDs. Except as may otherwise be agreed to by Developer and City during the formation of a CFD for the Property, the following specific provisions shall be included within the applicable terms and conditions of any CFD related to the Property. The CFD shall be consistent with any City adopted finance policies relating to such financing. The term of the special tax to be levied by any CFD against the Property shall be sufficient to support multiple bond sales not to exceed an authorized am ount appropriate for the Project, as determined by City and Developer. Available CFD bond proceeds and/or special tax proceeds may be used to fund, in addition to acquisition and/or construction of the Public Improvements, reimbursements and/or payment of development impact fees, and City PFE Fee Program projects outside of the Specific Plan area provided the amount of CFD proceeds used to fund such projects shall not exceed the amount of PFE fee credits for which Developer would otherwise be eligible for such projects. When the CFDs are created, City may include provisions that permit the acquisition or construction cost of the Public Improvements to be paid from Pay - As-You-Go Levies in amounts and for time periods to be agreed to in an acquisition agreeme nt entered into in connection with the issuance of bonds. Nothing in this Section shall be construed to limit or change Developer’s ability to receive fee credits and/or fee reimbursements for infrastructure improvements in accordance with City policies in effect as of the Effective Date, including but not limited to improvements financed by a CFD or other financing mechanism. (b) Alternative Financing Mechanisms. Nothing herein shall be construed to limit Developer’s option to construct any improvements through the use of alternative financing mechanisms, including but not limited to SCIP financing, traditional assessment districts, private financing, and other financing mechanisms as permitted by law and authorized by City.
71 Stardust Development Agreement
2.9 Maintenance Finance. As further set forth in the Infrastructure Financing Plan, prior to approval of a small lot final map, City and Developer will complete all actions needed to form, annex into, and/or implement the funding mechanism(s), including financing districts and special taxes, to pay to maintain existing and new public improvements and facilities associated with or needed to serve the Property as identified in the Infrastructure Financing Plan. Developer shall participate in, support, and pay all reasonable costs incurred by City a ssociated with such actions consistent with this Agreement and the Infrastructure Financing Plan. The amount of special taxes or assessments to be included in each new maintenance or services district referred to herein and identified for formation by the Infrastructure Financing Plan shall not exceed the amounts reasonably determined by City and Developer during the formation of such finance district to fund the operations, maintenance and/or services to be financed thereby. City hereby acknowledges such special taxes or assessments shall be (i) used solely to cover the revenue shortfall, if any, caused by the tax sharing agreement negotiated between the City and County of Placer in compliance with California Revenue and Tax Code Section 99(b) and Californi a Government Code Section 56842 for the annexation of the Specific Plan area and (ii) consistent with the City’s revenue and expense assumptions as set forth in the Lincoln Village 1 Infrastructure and Public Facilities Financing Plan prepared by Economic and Planning Systems and dated August 2016 (collectively, “City Acknowledgments”). As more particularly described in Chapter 8 of Volume 1 of the Infrastructure Financing Plan, the funding mechanisms will include the following: (1) parks, trails, landscape corridors, medians, and open space maintenance; (2) street, traffic signals, and lighting maintenance; and (3) storm drainage maintenance.
(a) Interim Maintenance. Existing and new public improvements and facilities associated with or needed to serve the Project may require maintenance prior to implementation of the funding mechanism(s) described in Section 2.8 above. In the event such maintenance is required, and s ubject to the City Acknowledgments, Developer hereby agrees to provide said maintenance, or enter into an agreement with City to provide advance funding for said maintenance, until the funding mechanism(s) provide sufficient revenue to fund the required maintenance. Once the funding mechanism(s) provide sufficient revenue to fund the required maintenance, City hereby agrees Developer shall be entitled to a reimbursement from the funding mechanism(s) for all sums previously paid or advanced by Developer for the interim maintenance.
The Parties agree the funding mechanism(s) shall be the sole source of funding for the reimbursement. Reimbursements will be paid after all annual maintenance costs have been funded, unless an earlier reimbursement is approved by the City Manager, provided the City Manager shall have the right, in his or her sole discretion, to seek City Council approval of any such alternative reimbursement.
(b) Interim Specific Plan Area Road Maintenance Costs. Developer and City acknowledge certain roads within the Specific Plan area may require maintenance prior to implementation of the funding mechanism(s) described in Section 2.9 and the costs of such maintenance will exceed revenues received by City to provide such maintenance. Said shortfall shall be funded by either a one-time fee per unit of $38.16 paid prior to building permit issuance, or an alternative financing mechanism acceptable to City. The fee of $3 8.16 per unit shall be adjusted each year on July 1
st by the City based on cost of living or other such inflationary adjustments (including inflationary adjustments based on the Engineering News Record Cost of Construction Index, a Consumer Price Index, or other method) in accordance with City ordinances 72 Stardust Development Agreement
or the financing plan. Interim Specific Plan Area Road Maintenance costs will stop once the project annexes into CFD 2018-1.
(c) Amounts and Effect of Alternative HOA Maintenance. If and to the extent the homeowner association for the Property elects to perform a ny of the maintenance obligations that would otherwise be performed by the districts described in Section 3.8, subject to City’s satisfaction, to be exercised in its reasonable discretion, with the adequacy of the performance thereof secured by the homeowner association, the applicable maintenance financing districts shall include a mechanism whereby the amount of the special taxes or assessments to be collected thereby shall be reduced by the annual savings to be realized by the districts from the performance of such maintenance obligations by the homeowner association and the relieving of the districts from having to perform such maintenance obligations.
2.9.1 Public Services Finance. As further set forth in the Infrastructure Financing Plan, and subject to the City Acknowledgments, prior to approval of a small lot final map, City and Developer will complete all actions needed to form, annex into, and/or implement the funding mechanism(s), including financing districts and special taxes, to pay for public services associated with or needed to serve the Project. City hereby acknowledges such special taxes or assessments shall be (i) used solely to cover the revenue shortfall, if any, caused by the tax sharing agreement negotiated between the City and County of Placer in compliance with California Revenue and Tax Code Section 99(b) and California Government Code Section 56842 for the annexation of the Specific Plan area and (ii) consistent with the City’s revenue and expense assumptions as set forth in the Lincoln Village 1 Infrastructure and Public Facilities Financing Plan prepared by Economic and Planning Systems and dated August 2016(collectively, “City Acknowledgments”). Developer shall participate in, support, and pay all reasonable costs incurred by City assoc iated with such actions consistent with this Agreement and the Infrastructure Financing Plan. a) Interim Wildland Fire Protection Costs. Developer and City acknowledge City may enter into a wildland fire protection agreement with the California Department of Forestry and Fire Protection to provide wildland fire protection within the Specific Plan area until such protection is no longer needed to serve the Specific Plan Area. Developer hereby agrees:
1. To reimburse City for its fair share of the cost of securing such wildland fire protection for each acre within the
Property requiring wildland fire protection as
determined by the wildland fire protection agreement.
2. The amount of the reimbursement owed by Developer
shall be calculated by taking the total number of
developable acres within the Stardust Project property
(Developable Acreage), plus 40% of the Developable
Acreage, and multiplying the sum by the CALFIRE
Total Protection Rate (cost per acre) in effect for the coverage year.
3. Developer shall be required to reimburse the City for any prior years of protection coverage purchased by the City, plus interest, for the Project Property acreage plus 40% of the Project Property Acreage.
73 Stardust Development Agreement
4. Said reimbursement shall be delivered to City by
February 1 each year following the Effective Date of this Agreement.
5. Payment of wildland fire protection costs shall be
required until the Property no longer requires wildland fire protection as determined by the City of Lincoln, at which point Developer’s annual payment obligation
under this Section shall cease.
2.9.2 Interim Public Safety Costs. Developer and City acknowledge providing public safety service to the Project prior to the sale of homes will exceed revenues by City to provide such services, based on the City ’s revenue and expense assumptions as set forth in the Lincoln Village 1 Infrastructure and Public Facilities Financing Plan prepared by Economic and Planning Systems and dated August 2016. Said shortfall shall be funded by either a one -time fee per unit of $246.21 paid prior to building permit issuance, or an alternative financing mechanism acceptable to City. The fee of $246.21 per unit shall be adjusted each year on July 1 st by the City
based on cost of living or other such inflationary adjustments (including inflationary adjustments based on the Engineering News Record Cost of Construction Index, a Consumer Price Index, or other method) in accordance with City ordinances or the financing plan. Interim Public Safety costs will stop once the project annexes into CFD 2018-2.
2.10 Prevailing Wages. To the extent required by California’s Prevailing Wage Law (Labor Code Sections 1720 et seq.), Developer shall pay prevailing wages for construction of the Public Improvements.
2.11 Community Benefit Fee. In recognition of the benefits conveyed by this Agreement, Developer hereby agrees to pay three hundred twenty -two dollars and twenty -seven cents ($322.27) per dwelling unit as a community benefit fee. The proceeds from said fee may be used to achieve com munity benefits as the City Council may deem appropriate. Payment of the community benefit fee shall be made at the time that each building permit for a dwelling unit is issued by the City. The fee of $322.27 per unit shall be adjusted each year on by the City based on cost of living or other such inflationary adjustments (including inflationary adjustments based on the Engineering New Record Cost of Construction Index, a Consumer Price Index or other method in accordance with City ordinances or the financing plan.
ARTICLE 3
CITY OBLIGATIONS
3.1 Public Facilities Element Fee Program. City is currently in the process of updating its PFE fee program to include the public facilities required to serve the 2050 General Plan (“PFE Fee Program”). Upon adoption of the PFE Fee Pr ogram and the Public Facilities Element Implementation Plan and Policies (“PFE Policy”), City shall administer said program and policy and impose a PFE Fee Program fee (“PFE Fee”) on all developing parcels within the Specific Plan area.
3.1.1 PFE Fee Program Credits/Reimbursements. When Developer provides PFE facilities, Developer shall receive PFE Fee credits consistent with City’s PFE Policy. If the amount 74 Stardust Development Agreement
of Developer’s PFE Fee credits do not reach a zero balance prior to the issuance of the last building permit within the Project, City shall transfer the then existing credit balance held by Developer to any other property within the Specific Plan area owned by Developer. Upon written notice to City using the form attached hereto as Exhibit “F”, Developer may at any time freely transfer and assign any unused PFE Fee credits to another developer within the Specific Plan area without obtaining City’s consent. PFE Fee credits are eligible for reimbursement when funds are available pursuant to the PFE Policy. If Constructing Owner has an outstanding monetary obligation to the City as noted above, then the City may require the monetary obligation to be met before transfer of the PFE Fee Credit owned by Constructing Owner
3.1.2 Village 1 Non-Critical PFE Fees. As set forth in the Village 1 Infrastructure Finance Plan, if the developer is required to construct or install a Village 1 eligible fee program improvement, the developer shall be allowed to request A) reimbursement or B) fee credits in compliance with the same proces s as exists within the City of Lincoln PFE Fee program. The developer shall be required to install public improvements as identified in the development agreement and associated tentative and final maps. To the extent that additional improvements are needed beyond what is located within the conditions of approval or needed to serve the project identified within this development agreement, the City will meet and confer with the developer to discuss reimbursement options to help facilitate the improvements. The City shall not authorize pooling of fee credits except in limited scenarios as determined by the City Manager.
3.1.3 Accounting of PFE Fee Credits/Reimbursements. Within sixty (60) days of receipt of written request by Developer, City shall provide Developer with a written accounting of Developer’s current balance of PFE Fee credits and/or reimbursements, including complete documentation of the basis for such PFE Fee credits and/or reimbursements. The PFE Fee credit and reimbursement obligations will be calculated in the manner set forth in the PFE Fee Program and/or PFE Policy.
3.1.4 PFE Fee Credits/Reimbursements Agreement . Prior to Developer commencing construction of any facility included in the PFE Fee Program, City shall enter into a PFE Fee credit/reimbursement agreement with Developer in the form attached hereto as Exhibit “G”.
3.1.5 Nature of PFE Fee Credits/Reimbursements . All rights to PFE Fee credits and/or reimbursements shall be personal to Developer and shall not run with the land, unless such rights are expressly designated in writing to do so.
3.2 Infrastructure Financing Plan . City hereby agrees to implement the Infrastructure Financing Plan for the Term of this Agreement such that all projects within the Specific Plan area shall be conditioned to comply with the fee and fee credit/fee reimbursement provisions included therein.
3.2.1 Plan Area Fee Program . As more particularly described in Chapter 6 of Volume 1 of the Infrastructure Financing Plan, City shall adopt and implement the Village 1 Plan Area Fee Program (“ Plan Area Fee Program ”) to finance the costs of excluded or underfunded public facilities and fairly spread the costs thereof to all developing parcels within the Specific Plan area. The Plan Area Fee Program shall consist of four components: (1) infrastru cture fee component; (2) neighborhood park development fee component; (3) neighborhood park land 75 Stardust Development Agreement
acquisition fee component; and (4) administration fee component (collectively, “Plan Area Fee”).
The timing of collection of the Plan Area Fee shall be as set forth in Chapter 6 of Volume 1 of the Infrastructure Financing Plan. The Plan Area Fee shall be collected and held by City, and earn interest at the same rate as City receives from the Local Agency Investment Fund.
3.2.2 Plan Area Fee Program Credits/Reimbursements . As more particularly described in Chapter 6 of Volume 1 of the Infrastructure Financing Plan, Developer shall be entitled to Plan Area Fee credits and/or reimbursements from the Plan Area Fee Program for the actual costs incurred to design and/or construct eligible Public Improvements. The amount of such Plan Area Fee credits and/or reimbursements shall be adjusted every year consistent with the Plan Area Fee Program.
3.2.3 Election between Plan Area Fee Credits/Reimbursements . Except as otherwise provided in the Infrastructure Financing Plan, Developer shall be entitled to elect between Plan Area Fee credits and reimbursements, or direct an apportionment between the two, from the Plan Area Fee Program, but shall only be entitled to reimbursements when funds are available for reimbursement through any eligible funding source as identified within the Plan Area Fee Program.
3.2.4 Accounting of Plan Area Fee Credits/Reimbursements . For purposes of calculating and applying Plan Area Fee credits and/or reimbursements, C ity shall maintain segregated Plan Area Fee Program accounts for each component. City shall also maintain an accounting of the current balance of Plan Area Fee credits and/or reimbursements. Within sixty (60) days of receipt of written request by Developer , City shall provide Developer with a written accounting of Developer ’s current balance of Plan Area Fee credits and/or reimbursements, including complete documentation showing the basis for such Plan Area Fee credits and/or reimbursements. The Plan Area Fee credit and reimbursement obligations will be calculated in the manner set forth in the Plan Area Fee Program.
3.2.5 Plan Area Fee Credits/Reimbursements Agreement . Prior to Developer commencing construction of any public facility described in Article 3, City shall enter into a Plan Area Fee credit/fee reimbursement agreement with Developer in the form attached hereto as Exhibit “I”.
3.2.6 Nature of Plan Area Fee Credits/Reimbursements . All rights to Plan Area Fee credits and/or reimbursements shall be personal to Developer and shall not run with the land, unless such rights are expressly designated in writing to do so
3.3 Right-of-Way Acquisition. With respect to the acquisition of any off -site interest in real property required by Developer in order to fulfill any condition required of the Project, the Entitlements or the Subsequent Entitlements, Developer shall make a good faith effort to acquire the necessary interest by private negotiations at the fair market value of such interest. If, after such reasonable efforts, Developer has been unable to acquire such interest and provided that Developer (i) provides evidence of a good faith effort to acquire the necessary property interest to the reasonable satisfaction of City’s Community Development Director and (ii) agrees to pay the cost of such acquisition, including reasonable attorneys’ fees, then City shall make an offer to acquire the necessary property interest at its fair market value. If such offer has not been accepted within sixty (60) days, City agrees, to the extent permitted by law, to cooperate and assist Developer in 76 Stardust Development Agreement
efforts to obtain such necessary property interest. Any such acquisition by City shall be subject to City’s discretion, which is expressly reserved by City, to make the necessary findings, including a finding thereby of public necessity, to acquire such interest. Subject to the reservation of such discretion, City shall schedule the necessary hearings, and, if approved by City, thereafter prosecute to completion the proceedings and action to acquire the necessary property interests by power of eminent domain. Developer shall f und all costs of the acquisition of such necessary property interests, including reasonable attorneys’ fees and court costs in the event that such acquisition and/or condemnation is necessary. The cost of rights -of-way for any eligible public facility shall constitute a creditable and/or reimbursable cost and City shall take all necessary steps to include such costs in the applicable fee program. As such, any costs incurred by Developer in the acquisition of such rights -of-way shall be credited to Develop er against the applicable fee obligations for the development of the Project. In accordance with Government Code Section 66462.5, City shall not postpone or refuse approval of a final map at the Property because Developer has failed to satisfy a Tentative Map condition because Developer has been unable to construct or install an offsite improvement on land not owned or controlled by Developer or City at the time the final map is filed with City for approval. If determined by City to be necessary, Developer agrees to enter into a subdivision improvement agreement with City and agrees to post any reasonably necessary security, such as a bond, in order to ensure the acquisition and construction of an offsite improvement on land not owned by Developer where the offsite improvement was a condition of approval for the Project. Notwithstanding the foregoing, in the event that City fails to acquire such off-site property by negotiation or condemnation, the off-site improvements shall be conclusively deemed to be waived and Developer shall not be obligated to commence construction of the off -site improvements in accordance with Government Code Section 66462.5.
3.4 Review and Approval of Improvement Plans and Final Maps . To complete the improvement plan and final map review, City shall return first check prints to Developer a minimum of thirty (30) days from the date of the complete submittal package to City. Upon receipt by City of the second submittal, City shall, provided Developer adequately responds to City’s comments on the first check prints, within a minimum of fifteen (15) days of City’s receipt of such second submittal, review and verify that the plans submitted satisfactorily address all City comments. Within a minimum of fifteen (15) days of City’s receipt of completed plans and maps deemed ready for approval, plans shall be signed by the City Engineer, and City staff shall place such maps on the next available City Council hearing agenda. If City determines it will be unable to comply with this Section, and notifies Developer of such determination, then plan check and map review tasks shall be subcontracted to an outside service provider at Developer’s request and expense provided the outside service provider is on City’s on-call list.
3.5 Building Permits.
(a) City shall review construction drawings and master plans (“Master Plans”) prior to construction of any model homes and production homes . City and Developer shall endeavor to resolve all City plan check comments within forty-five (45) days after any application for a Master Plan is deemed complete by City. Thereafter, City shall issue building permits for homes subject to that Master Plan within seven (7) days of City’s acceptance of a complete building permit application provided all of the following have occurred: (1) City’s Design Review Board and Community Development Director have approved the Master Plan; (2) a final map has 77 Stardust Development Agreement
been recorded for the Project (prior to production home permits); (3) the requirements of City of Lincoln Public Facilities Improveme nt Standards Section 2- 5 has been satisfied for model home building permits and Section 2-6 has been satisfied for production home building permits, and (4) Developer has paid building permit plan check fees. Recordation of a final map for the Property shall not be required prior to issuance of a building permit for a model home. (b) In the event that an amendment to the UBC results in the need to change the Master Plan, construction of residential units pursuant to the Master Plan shall be allowed to continue for a period of six (6) months from the date the State of California publishes notice of a change in the UBC which triggers a corresponding need for changes to the Master Plan provided the model home is consistent with City’s Design Standards.
3.6 Other Government Permits . Developer shall be responsible for applying for and obtaining approvals and permits required by other governmental agencies having jurisdiction over, or providing services to, the Project. To the extent possible, City shall cooperate with Developer in obtaining all such approvals and permits in as timely a manner as possible.
3.7 Approval of Other Development Agreements within Specific Plan Area .
Subsequent to approval of this Agreement, City expects to process and approve development agreements with other owners within the Specific Plan area. City hereby acknowledges that in entering into such other development agreements within the Specific Plan area, City intends to negotiate terms consistent in all material respects to those in this Agreement with other owners. If within twenty -four (24) months from the Effective Date of this Agreement, City approves a Development Agreement within the Specific Plan area containing any term(s) more favorable than the analogous term(s) included in this Agreement, City hereby acknowledges its desire and intent to amend this Agreement within ninety (90) days of Developer’s written request in order to provide Developer the full benefit of said more favorable term(s). Notwithstanding the foregoing , Developer ackno wledges such an Amendment to this Agreement shall require Planning Commission and/or City Council approval at a noticed public hearing and/or a public meeting of those legislative bodies, as applicable.
ARTICLE 4
ANNUAL REVIEW
4.1 Annual Review.
A. During the Term of this Agreement, City shall once every calendar year review the extent of good faith compliance by Developer with the terms of this Agreement. The cost for City's annual review of this Agreement shall be paid by Developer. Such periodic review shall be limited in scope to compliance with the terms and conditions of this Agreement pursuant to California Government Code Section 65865.1. This review shall be conducted pursuant to Chapter 18.86 of the Lincoln Municipal Code. At least ten (10) days prior to any P lanning Commission and City Council meetings held in connection with said annual review, City shall provide Developer with a copy of the City staff report concerning Developer’s compliance with the terms and provisions of this Agreement.
B. Upon not less than thirty (30) days’ written notice by the Community Development Director, Developer shall provide such information as may be reasonably requested 78 Stardust Development Agreement
by the Community Development Director in order to ascertain Developer’s compliance with this Agreement.
C. Failure by City in any given calendar year to undertake and complete its annual review of the Agreement shall constitute a finding by City that Developer is not in default in the performance of its obligations under the Agreement for that calendar year, for purposes of the Estoppel Certificate.
4.2 Estoppel Certificate. Any party to this Agreement and any Lender may, at any time, and from time to time, deliver written notice to the other party requesting such party to certify in writing that, to the knowledge of the certifying party: (i) the Agreement is in full force and effect and a binding obligation on the parties; (ii) the Agreement has not been amended or modified, either orally or in writing, and if so amended or modified, identify the amendments or modifications; and (iii) as of the date of the estoppel certificate, the requesting party (or any party specified by a Lender) is not in default in the performance of its obligations under the Agreement, or if in default to describe therein the nature of any such default and the steps or actions to be taken by the other party reasonably necessary to cure any such alleged default. The party requesting the certificate shall pay all reasonable costs borne by City to complete the certificate. A party receiving a request hereunder shall execute and return such certificate or give a written detailed response explaining why it will not do so within thirty (30) days following the receipt of such request. Each party acknowledges that such an estoppel certificate may be relied upon by third parties acting in good faith. An estoppel certificate provided by City establishing the status of this Agreement shall be in recordable form and may be recorded at the expense of the recording party.
ARTICLE 5
DEFAULT, TERMINATION AND ENFORCEMENT
5.1 Defaults. Except as provided below, any failure by any party to perform any term or provision of this Agreement, which failure continues uncured for a period of thirty (30) days following the receipt of written notice of such failure from the other party, shall constitute a default under this Agreement. If the nature of the alleged default is such that it cannot reasonably be cured within thirty (30) days, the thirty -day time period will be tolled if: (a) the cure is commenced at the earliest practicable date following receipt of the notice; (b) the cure is diligently prosecuted to completion at all times thereafter; (c) at the earliest practicable date (in no event later than thirty (30) days after the party in default’s receipt of the notice) , the party in default provides written notice to the non- defaulting party that the cure cannot practicably be completed within such 30- day time period; and (d) the cure is completed at the earliest practicable date. Any notice given pursuant to the preceding two sentences shall specify the nature of any alleged failure and, where appropriate, specify the manner in which said failure may be satisfactorily cured. Upon the occurrence of a default under this Agreement, the non- defaulting party may institute legal proceedings to enforce the terms of this Agreement or, in the event of an uncured material default, may terminate this Agreement. If the default is cured, then no default shall exist and the non- defaulting party shall take no further action.
5.2 Termination. If City elects to consider terminating this Agreement due to an uncured material default of Developer, then City shall give a written notice of intent to terminate this Agreement to Developer and the matter shall be scheduled for consideration and review by 79 Stardust Development Agreement
the City Council at a duly noticed and conducted public hearing. At least ten (10) days prior to said hearing, City shall provide Developer with a copy of the City staff report concerning such proposed termination of this Agreement. Develope r shall have the right to offer written and oral evidence prior to or at the time of said public hearing. If the City Council determines that a material default has occurred and is continuing, and elects to terminate this Agreement, City shall give written notice of termination of this Agreement to Developer by certified mail and this Agreement shall thereby be terminated sixty (60) days thereafter.
5.3 Force Majeure. Performance by any party of its obligations under this Agreement (other than for payment of money) shall be excused during any period of “Permitted Delay” as hereinafter defined. For purposes hereof, Permitted Delay shall include delay beyond the reasonable control of the party claiming the delay (and despite the good faith efforts of the party) including: (i) acts of God; (ii) civil commotion; (iii) riots; (iv) acts of terrorism; (v) strikes, picketing or other labor disputes; (vi) shortage of materials, energy or supplies; (vii) damage to work in progress by reason of fire, flood, earthquake or ot her casualties; (viii) as to Developer only, failure, delay or inability of City to provide adequate levels of public services, facilities or infrastructure to the Project site; (ix) failure, delay or inability of the other party to act; (x) with respect to completion of the Annual Review, the failure, delay or inability of any party to provide adequate information or substantiation as reasonably required to complete the Annual Review; (xi) delay caused by governmental restrictions imposed or mandated by other governmental entities; (xii) enactment of conflicting state or federal laws or regulations; (xiii) judicial decisions or similar bases for excused performance; (xiv) litigation brought by a third party attacking the validity of this Agreement; (xv) City’s inability to issue or sell bonds necessary to finance any public facilities necessary for the Project’s development and use; and (xvi) building moratoria, water connection moratoria or sewer connection moratoria. Any party claiming a Permitted Delay shall notify the other party in writing of such delay within thirty (30) days after the commencement of the delay, which notice (“Permitted Delay Notice”) shall include the estimated length of the Permitted Delay.
A Permitted Delay shall be deemed to occu r for the time period set forth in the Permitted Delay Notice unless a party receiving the Permitted Delay Notice objects in writing within ten (10) days after receiving the Permitted Delay Notice. In the event of such objection, the parties shall meet and confer within thirty (30) days after the date of objection with the objective of attempting to arrive at a mutually acceptable solution to the disagreement regarding the Permitted Delay. If no mutually acceptable solution can be reached any party may take action as may be permitted under Section 6.1 of this Agreement.
5.4 Legal Action. In addition to any other rights or remedies, any party may institute legal action to cure, correct or remedy any default, to specifically enforce any covenant or agreement herein, or to enjoin any threatened or attempted violation. Notwithstanding anything in this Agreement to the contrary, the parties acknowledge that City would not have entered into this Agreement had it been exposed to liability for damages from Developer, and that therefore, Developer hereby waives any and all claims for damages against City for breach of this Agreement.
Developer further acknowledges that as an instrument which must be approved by ordinance, a development agreement is subject to referendum and that under law, the City Council's discretion to avoid a referendum by rescinding its approval of the underlying ordinance may not be constrained by contract, and Developer waives all claims for damages against City in this regard.
Nothing in this Section is intended to nor does it limit Developer’s or City’s rights to equitable remedies as permitted by law.
80 Stardust Development Agreement
ARTICLE 6
DEFENSE AND INDEMNITY/HOLD HARMLESS
6.1 Defense and Indemnity. Developer shall indemnify, defend and hold City, its elected and appointed commissioners , officers, agents, and employees (“Indemnitees”) harmless from and against any and all actual and alleged damages, claims, costs and liabilities, arising out of this Agreement, including, without limitation, contractual and statutory claims, and those arising out of the personal injury or death of any third party, or damage to the property of any third party, to the extent such damages, claims, costs or liabilities ar ise out of or in connection with the Agreement or the operations of the Project under this Agreement by Developer or by Developer’s contractors, subcontractors, agents or employees. Developer shall not be obligated to indemnify, defend, or hold Indemnitees harmless for damages, claims, costs and liabilities arising out of Indemnitees’ sole negligence or willful misconduct. Nothing in this Article 7 shall be construed to mean that Developer shall defend, indemnify or hold City harmless from any da mages, claims, costs or liabilities arising from, or alleged to arise from, activities associated with the maintenance or repair by City or any other public agency of improvements that have been offered for dedication and accepted by City or such other public agency. City and Developer may from time to time enter into subdivision improvement agreements, as authorized by the California Subdivision Map Act, or other agreements related to the Project, which agreements may include defense and indemnity provisions different from those contained in this Article 7. In the event of any conflict between such provisions in any such subdivision improvement agreements or other Project agreements and the provisions set forth above, the provisions of the agreement providing the broadest indemnity and defense to Indemnitees shall govern the obligations between the parties.
ARTICLE 7
COOPERATION IN THE EVENT OF LEGAL CHALLENGE
7.1 Cooperation. In the event of any administrative, legal, or equitable action or other proceeding instituted by any person not a party to this Agreement challenging the validity of any provision of any of the Entitlements, Subsequent Entitlements or this Agreement, the parties shall cooperate in defending such action or proceeding to dismissal, settlement or final judgment. Each party may select its own legal counsel, and Developer shall pay City’s legal defense fees and costs, including attorneys’ fees, consistent with Developer’s obligations under Section 7.1. In no event shall City be required to bear the fees or costs of Developer, including Developer’s attorneys’ fees.
If requested by Developer, City agrees to support any efforts made by Developer to intervene or join as a party in any such administrative, legal or equitable proceedings if Developer was not named as a party therein. Neither Developer nor City shall settle any action or proceeding on grounds that include non-monetary relief or admissions of liability without written consent of the other party. City agrees to not settle any action based upon monetary relief without the written consent of Developer, unless City is solely liable and agrees to pay such monetary relief. In the event of an award by the court or by an arbitrator of attorneys’ fees to a party challenging this Agreement or any of the Entitlements or Subsequent Entitlements, then Developer shall be liable for satisfying the payment of any such award of third party’s attorneys’ fees only if Developer continued to contest such litigation or legal challenge to a final judgment or other final determination, rather than settling it when City proposed to settle the matter. 81 Stardust Development Agreement
7.2 Court Judgment or Order . City and Developer shall meet and endeavor, in good faith to attempt to reach agreement on any amendments needed to allow development of the Property to proceed in a reasonable manner taking into account the terms and conditions of the court’s judgment or order. If agreement is reached, the procedures for amending this Agreement as specified herein shall apply. If agreement is not reached, Develope r shall have the right to terminate this Agreement by giving City sixty (60) days’ notice of termination. In the event that amendment of this Agreement is not required, and the court’s judgment or order requires City to engage in other or further proceedings, City agrees to comply with the terms or the judgment or order expeditiously.
ARTICLE 8
MISCELLANEOUS PROVISIONS
8.1 Authority to Execute Agreement. The person or persons executing this Agreement on behalf of Developer warrant and represent that they have the author ity to execute this Agreement and the authority to bind Developer to the performance of its obligations hereunder.
8.2 Cancellation or Modification . In addition to the rights provided the parties in Article 5 of this Agreement with respect to City’s Annual Review, and Sections 6.1 and 6.2 of this Agreement as to default and termination, any Party may propose cancellation or modification of this Agreement pursuant to Government Code Section 65868, but such cancellation or modification shall require the consent of any parties hereto retaining any legal interest in the Property or any portion thereof.
8.3 Consent. Where consent or approval of a Party is required or necessary under this Agreement, such consent or approval shall not be unreasonably withheld, conditioned or delayed.
8.4 Interpretation of Agreement. All parties have been represented by legal counsel in the preparation of this Agreement and no presumption or rule that ambiguity shall be construed against a drafting Party shall apply to interpretation or enforce ment hereof. Captions on sections and subsections are provided for convenience only and shall not be deemed to limit, amend or affect the meaning of the provision to which they pertain.
8.5 California Law. This Agreement shall be construed and enforced in acco rdance with the laws of the State of California. City and Developer shall each comply with all applicable laws in the performance of their respective obligations under this Agreement.
8.6 No Joint Venture or Partnership. City and Developer hereby renounce the existence of any form of joint venture, partnership or other association between City and Developer, and agree that nothing in this Agreement or in any document executed in connection with it shall be construed as creating any such relationship between City and Developer.
8.7 Covenant of Good Faith and Fair Dealing. No Party shall do anything which shall have the effect of injuring the right of another Party to receive the benefits of this Agreement or do anything which would render its performance under this A greement impossible. Each Party shall perform all acts contemplated by this Agreement to accomplish the objectives and purposes of this Agreement.
82 Stardust Development Agreement
8.8 Partial Invalidity Due to Governmental Action. In the event state or federal laws or regulations enacted after the Effective Date of this Agreement, or formal action of any governmental jurisdiction other than City, prevent compliance with one or more provisions of this Agreement, or require changes in plans, maps or permits approved by City, the parties agre e that the provisions of this Agreement shall be modified, extended or suspended only to the minimum extent necessary to comply with such laws or regulations.
8.9 Further Actions and Instruments. The parties agree to provide reasonable assistance to the other and cooperate to carry out the intent and fulfill the provisions of this Agreement. Each of the parties shall promptly execute and deliver all documents and perform all acts as necessary to carry out the matters contemplated by this Agreement.
8.10 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.
8.11 No Waiver . No delay or omission by a party in exercising any right or power accruing upon non-compliance or failure to perform by another party under the provisions of this Agreement shall impair any such right or power or be construed to be a waiver. A waiver by a party of any of the covenants or conditions to be performed by another party shall not be construed as a waiver of any succeeding breach or non -performance of the same or other covenants and conditions thereof.
8.12 Severability. If any provision of this Agreement shall be adjudicated to be invalid, void or illegal, it shall in no way affect, impair or invalidate any other provision, and, with the exception of such provision found invalid, void or illegal, this Agreement shall remain in full force and effect.
8.13 Recording. Pursuant to California Government Code Section 65868.5, no later than ten (10) days after City enters into this Agreement, the City Clerk shall record an executed copy of this Agreement in the official records of the Placer County Recorder’s Office and thereafter provide Developer with a copy of the recorded Agreement.
8.14 Attorneys’ Fees. Should any legal action be brought by any party for breach of this Agreement or to enforce any provisions herein, the prevailing party shall be entitled to reasonable attorneys’ fees, court costs and other costs as may be fixed by the Court. Attorneys’ fees shall include attorneys’ fees on any appeal, and in addition a party entitled to attorneys’ fees shall be entitled to all other reasonable costs for investigating su ch actions, taking depositions and discovery, and all other necessary costs incurred in the litigation.
8.15 Venue. Any action arising out of this Agreement shall be brought in Placer County, California, regardless of where else venue may lie.
8.16 Time is of the Essence. Time is of the essence of each and every provision of this Agreement.
8.17 Several Obligations of Owners. Notwithstanding anything to the contrary contained herein, no default in the performance of a covenant or obligation in this Agreement with respect to 83 Stardust Development Agreement
a particular portion of the Property shall constitute a default applicable to any other portion of the Property, and any remedy arising by reason of such default shall be applicable solely to the portion of the Property where the default has occurred. Similarly, the obligations of Developer and any successor in interest thereof shall be several and no default hereunder in performance of a covenant or obligation by any one of them shall constitute a default applicable to any other owner who is not affiliated with such defaulting owner, and any remedy arising by reason of such default shall be solely applicable to the defaulting owner and the portion of the Property owned by such defaulting owner.
ARTICLE 9
PROVISIONS RELATING TO LENDERS
9.1 Lender Rights and Obligations.
9.1.1 Prior to Lender Possession. No Lender shall have any obligation or duty under this Agreement prior to the time the Lender obtains possession of the Property to construct or complete the construction of improvements, or to guarantee such constr uction or completion, and shall not be obligated to pay any fees or charges which are liabilities of Developer or Developer’s successors-in-interest prior to Lender ’s possession of the Property, but such Lender shall otherwise be bound by all of the terms and conditions of this Agreement which pertain to the Property or such portion thereof in which it holds an interest. Nothing in this Section shall be construed to grant to a Lender right beyond those of Developer hereunder or to limit any remedy City has hereunder in the event of default by Developer, including termination or refusal to grant subsequent additional land use entitlements with respect to the Property.
9.1.2 Lender in Possession. A Lender who comes into possession of the Property, or any portion thereof, pursuant to foreclosure of a mortgage or deed of trust, or a deed in lieu of foreclosure, shall not be obligated to pay any fees or charges which are obligations of Developer and which remain unpaid as of the date such Lender takes possession of the Property or any portion thereof. Provided, however, that a Lender shall not be eligible to apply for or receive entitlements with respect to the Property, or otherwise be entitled to develop the Property or devote the Property to any uses or to construct any improvements thereon other than the development contemplated or authorized by this Agreement and subject to all of the terms and conditions hereof, including payment of all fees (delinquent, current and accruing in the future) and charges, and assumption of all obligations of Developer hereunder; provided, further, that no Lender, or successor thereof, shall be entitled to the rights and benefits of Developer hereunder or entitled to enforce the provisions of this Agreement against City unless and until such Lender or successor in interest qualifies as a recognized assignee of this Agreement and makes payment of all delinquent and current City fees and charges pertaining to the Property.
9.1.3 Notice of Developer ’s Default Hereunder . If City receives notice from a Lender requesting a copy of any notice of default given Developer hereunder and specifying the address for notice thereof, then City shall deliver to such Lender, concurrently with service thereon to Developer, any notice given to Developer with respect to any claim by City that Developer has committed a default, a nd if City makes a determination of non- compliance, City shall likewise serve notice of such non- compliance on such Lender concurrently with service thereof on Developer.
84 Stardust Development Agreement
9.1.4 Lender’s Right to Cure . Each Lender shall have the right, but not the obligation, during the same period of time available to Developer to cure or remedy, on behalf of Developer, the default claimed or the areas of non -compliance set forth in City ’s notice. Such action shall not entitle a Lender to develop the Property or otherwise partake of any benefits of this Agreement unless such Lender shall assume and perform all obligations of Developer hereunder.
9.1.5 Other Notices by City . A copy of all other notices given by City to Developer pursuant to the terms of this Agreement shall also be sent to Lender at the address provided pursuant to Section 10.1.3 above.
ARTICLE 10
ENTIRE AGREEMENT AND EXHIBITS
10.1 Integration Clause and List of Exhibits. This Agreement consists of twenty -nine (29) pages and thirteen (13) Exhibits, which constitute in full the final and exclusive understanding and agreement of the parties and supersedes all negotiations or previous agreements of the parties with respect to all or any part of the subject matter hereof. The following exhibits are attached to this Agreement and are hereby incorporated herein for all purposes:
Exhibit A Overall Project Map
Exhibit B Legal Description of Property
Exhibit C Land Use Map
Exhibit D Transfer Agreement Form
Exhibit E Exactions Applicable to Project
Exhibit F PFE Fee Credit Transfer Agreement Form
Exhibit G PFE Fee Credit/Reimbursement Agreement Form
Exhibit H Village 1 – Infrastructure Finance Plan Fee Reimbursement Agreement Form
Exhibit I Plan Area Fee Credit/Fee Reimbursement Agreement Form
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85 Stardust Development Agreement
IN WITNESS WHEREOF , the City of Lincoln, a municipal corporation, has authorized the execution of this Agreement in duplicate by its City Manager and attestation by its City Clerk under authority of Ordinance No. _______________, adopted by the City Council of the City of Lincoln on the ____________day of ________________, 2024, and Developer has caused this Agreement to be executed.
“City”
City of Lincoln,
A Municipal Corporation By:
Name: Sean Scully
Title: City Manager Date:
Date:
“Developer”
Stardust 80, a California limited partnership
By:
Name:
Title:
Date:
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
86 Stardust Development Agreement
Exhibit A
EXHIBIT A
OVERALL PROJECT MAP
87 Stardust Development Agreement
Exhibit B - Page 1 of 2
EXHIBIT B
LEGAL DECRIPTION OF PROPERTY
LEGAL DESCRIPTION - STARDUST
REAL PROPERTY IN THE CITY OF LINCOLN, COUNTY OF PLACER, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
THAT PORTION OF SECTIONS 13 AND 24, TOWNSHIP 12 NORTH, RANGE 6 EAST, MOUNT DIABLO BASE AND MERIDIAN, DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON THE WEST LINE OF SECTION 18, TOWNSHIP 12 NORTH, RANGE 7 EAST, MOUNT DIABLO BASE AND MERIDIAN, FROM WHICH THE WEST ¼ CORNER OF SAID SECTION 18 BEARS NORTH 00° 16' 00'' EAST 1980.00 FEET; THENCE FROM SAID POINT OF BEGINNING, SOUTH 00° 16' 00'' WEST 662.95 FEET, TO A 2 INCH IRON PIPE MARKING THE SECTION CORNER COMMON TO SECTIONS 18 AND 19, TOWNSHIP 13 NORTH, RANGE 7 EAST, MOUNT DIABLO BASE AND MERIDIAN, AND SECTIONS 13 AND 24, TOWNSHIP 12 NORTH, RANGE 6 EAST, MOUNT DIABLO BASE AND MERIDIAN, THENCE SOUTH 00° 19' 35'' WEST 1115.75 FEET TO A ¾ INCH IRON PIPE TAGGED L.S. 3636; THENCE ALONG A FENCE LINE, NORTH 89° 40' 32'' WEST 2392.28 FEET, TO A ¾ INCH IRON PIN TAGGED L.S. 4325; THENCE NORTH 00° 08' 39'' EAST 1785.02 FEET TO A ¾ INCH IRON PIN TAGGED L.S. 4325; THENCE SOUTH 89° 14' 15''
EAST 1026.39 FEET; THENCE SOUTH 88° 54' 00'' EAST 106.34 FEET; THENCE SOUTH 89° 59' 33'' EAST
338.18 FEET TO A ¾ INCH IRON PIN TAGGED L.S. 4325; THENCE SOUTH 89° 44' 00'' EAST 926.10 FEET TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM ANY PORTION LYING WITHIN THE PROPERTY DESCRIBED IN DEED TO JAROL H. JANSEN, ET UX., RECORDED JUNE 27, 1947 IN BOOK 507 AT PAGE 141.
EXCEPTING THEREFROM THAT PORTION IN THE GRANT DEED DATED JANUARY 8, 1985, EXECUTED BY ALLEN C. CARMICHAEL, ET UX, TO ASSEMBLIES OF GOD NORTHERN CALIFORNIA AND NEVADA DISTRICT COUNCIL, INC., A CALIFORNIA CORPORATION, RECORDED FEBRUARY 4, 1985, IN BOOK 2772, PAGE 225, OFFICIAL RECORDS.
APN: 021-274-040
88 Stardust Development Agreement
Exhibit B – Page 2 of 2
89 Stardust Development Agreement
Exhibit C
EXHIBIT C
LAND USE MAP
90 Stardust Development Agreement
Exhibit D
1533536.2 4
EXHIBIT D
RECORDING REQUESTED BY
AND
WHEN RECORDED, MAIL TO:
_______________________________
_______________________________
_______________________________
(SPACE ABOVE THIS LINE RESERVED FOR
RECORDER'S USE)
TRANSFER AGREEMENT
THIS TRANSFER AGREEMENT (herein, this “Transfer Agreement’) is entered into as of ________________, 20______, by and between ____________, a ____________(“Seller”) and ________________, a _______________________(“Buyer”).
RECITALS
A. SELLER and BUYER are parties to that certain Agreement with an effective date of ______________, 20________, whereby SELLER agreed to convey to BUYER, subject to the terms of said Agreement, that certain real property situated in the City of Lincoln (“City”), County of Placer, State of California, which is more particularly described in Exhibit A attached hereto and incorporated by reference (the “Subject Property”).
B. The Subject Property is subject to that certain Development Agreement dated _________________, 20 ________recorded in the official records of Placer County (the “Records”) on __________________, 20_____, as Instrument No_____________.
C. The Subject Property is part of the Village 1 master planned community (the “Community”) described in the Development Agreement.
D. SELLER and BUYER are executing and recording this Transfer Agreement pursuant to Section 1.9 of the Development Agreement.
AGREEMENTS
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, SELLER and BUYER agree as follows:
1. This Transfer Agreement is effective upon transfer of title to the Subject Property to BUYER (the “Effective Date”).
91 Stardust Development Agreement
Exhibit D
1533536.2 5
2. Except as otherwise provide d, all defined terms used in this Transfer Agreement shall correspond to the defined terms in the Development Agreement.
3. SELLER hereby assigns to BUYER all of SELLER’s rights, title, interest, burdens and obligations under the Development Agreement related to the Subject Property. BUYER, its successors and assigns hereby expressly assume all such rights and obligations as of the Effective Date.
4. BUYER hereby assumes all rights, title, interest, burdens and obligations of SELLER under the Development Agreement, and agrees to observe and fully perform all of the duties and obligations of SELLER under the Development Agreement. BUYER agrees that BUYER shall comply with all the provisions of the Development Agreement and with all City rules, regulations and polic ies regarding the Subject Property which are applicable to the Development Agreement.
5. SELLER hereby assigns to BUYER all of SELLER’s rights and obligations pertaining to PFE Credits and Plan Area Fee Credits as set forth in Exhibit B. BUYER, its successors and assigns hereby expressly assume all such rights and obligations pertaining to the PFE Credits and Plan Area Fee Credits as set forth in Exhibit B.
6. All of the covenants, terms and conditions set forth herein shall be binding upon and shall inure to the benefit of the parties hereto and to their respective heirs, successors and assigns.
7. As provided in Section 1.9 of the Development agreement, this Transfer Agreement shall not be effective unless and until approved in writing by the City Manager, which approval shall be assumed if Developer does not receive written response containing the City Manager’s approval or disapproval within ten (10) days of SELLER’s written request .
8. This Transfer Agreement may be executed in one or more counterparts. All counterparts so executed shall constitute one agreement, binding on all parties, even though all parties, even though all parties are not signatory to the same counterpart. The parties authorize each other to detach and combine, or cause to be detached and combined, original signature pages and consolidate them into a single identical original for recordation of this Agreement in the Official Records of Placer County, California.
[Signatures commence on following page]
92 Stardust Development Agreement
Exhibit D
1533536.2 6
IN WITNESS WHEREOF, the parties hereto have executed this Transfer Agreement as of the date and year first-above written.
SELLER:
_____________________________,
a ___________________________
By:
Name:
Title:
BUYER:
____________________________,
a _____________________
By:
Name:
Title:
93 Stardust Development Agreement
Exhibit D
1533536.2 EXHIBIT A
EXHIBIT A
LEGAL DESCRIPTION OF SUBJECT PROPERTY
94 Stardust Development Agreement
Exhibit D
1533536.2 EXHIBIT A
EXHIBIT B
PFE CREDITS ALLOCATED TO SUBJECT PROPERTY
NON-CRITICAL PFE FEE CREDITS IN
DOLLARS
EDU
CREDITS
Recorded
Final Map
No. of
Acres
Water
Wastewater
Transportation
Drainage
Sewer
Connection
s
$ .00 $ .00 $ .00 $ .00 0.00
$ .00 $ .00 $ .00 $ .00 0.00
$ .00 $ .00 $ .00 $ .00 0.00
NOTE: The transfer of sewer connections are based on the number of EDU, not a specific dollar amount. The sewer connections will be applied to building permits per the EDU factors identified in the PFE Program.
VERIFICATION
The City of Lincoln hereby verifies that the PFE Credits listed above are currently owned by BUYER and available for transfer to SELLER.
By:
Name:
Title: Director
95 Stardust Development Agreement
Exhibit E
DRAFT
Exhibit E
Exactions Applicable to Project
City of Lincoln Building Permit and Miscellaneous Fees
Building Permit Fee [1]
Plan Check Fee
Energy Plan Check & Inspection Fee
Incremental Fee
California Building Standards Commission (CBSC) Fee
Strong Motion
Instrumentation Fee
Water Use Fee Water
Meter Fee Park Tax
Building Occupancy Fee
Cemetery Fee
Refuse Container Community Benefits Fee
Public Facilities Element (PFE Fees)
City Water
Connection Fee
Drainage Impact Fee Sewer Connection
Fee Traffic Mitigation Fee
Community Services Fee
Plan Area Fees Potable Water Drainage
Wastewater Roadways Nonpotable
Water
Frontage Landscaping
Neighborhood Parks Land Acquisition
Neighborhood Parks Development Regional Park
Land Acquisition Trails
County and Regional Fees
Placer County Capital Facilities Impact Fee
South Placer Regional Transportation Authority Tier I (SPRTA) South Placer Regional Transportation Authority Tier II (SPRTA) Placer County Water Agency (PCWA) Zone 1 Water Connection Charge Western Placer Unified School District
Source: City of Lincoln; Western Placer Unified School District; South Placer Regional Transit Authority; Frayji Design Group; and EPS.
[1] Does not include electrical, plumbing, and mechanical permitting fees. 96 Stardust Development Agreement
Exhibit F
1533537.2
RECORDING REQUESTED BY
AND
WHEN RECORDED, MAIL TO:
_______________________________
_______________________________
_______________________________
Attn:
__________________________
(SPACE ABOVE THIS LINE RESERVED FOR
RECORDER'S USE)
PFE FEE CREDIT TRANSFER AGREEMENT
THIS PFE FEE CREDIT TRANSFER AGREEMENT (herein, this “PFE Transfer Agreement’) is entered into as ____________of____________,20_______, by _________and _____between __________________, a ______________(“Transferor”) _____and__________, a______________(“Transferee”).
RECITALS
A. TRANSFEROR agrees to convey to TRANSFEREE certain PFE Fee Credits identified in Exhibit A, applicable to PFE projects included in the Lincoln Village 1 Infrastructure and Public Facilities Financing Plan (“PFE Credits”).
B. Exhibit A is attached hereto and incorporated by reference.
C. TRANSFEROR and TRANSFEREE are executing and recording this PFE Transfer Agreement pursuant to Sections 4.2.7 of their respective development agreements.
AGREEMENTS
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, TRANSFEROR and TRANSFEREE agree as follows:
1. TRANSFEROR hereby assigns to TRANSFEREE all of TRANSFEROR’s rights pertaining to PFE Credits as set forth in Exhibit A.
2. TRANSFEREE, its successors and assigns hereby expressly assume all such rights pertaining the PFE Credits as set forth in Exhibit A.
3. All of the covenants, terms and conditions set for th herein shall be binding upon and shall inure to the benefit of the parties hereto and to their respective heirs, successors and assigns.
4. This Transfer Agreement may be executed in one or more counterparts. All counterparts so executed shall constitute one agreement, binding on all parties, even though all 97 Stardust Development Agreement
Exhibit F
1533537.2
parties, even though all parties are not signatory to the same counterpart. The parties authorize each other to detach and combine, or cause to be detached and combined, original signature pages and consolidate them into a single identical original for recordation of this Agreement in the Official Records of Placer County, California.
IN WITNESS WHEREOF, the parties hereto have executed this PFE Transfer Agreement as of the date and year first-above written.
TRANSFEROR:
_____________________________,
a ___________________________
By:
Name:
Title:
TRANSFEREE:
____________________________,
a _____________________
By:
Name:
Title:
98 Stardust Development Agreement
Exhibit F
1533537.2
EXHIBIT A
PFE FEE CREDITS TRANSFERRED
NON-CRITICAL PFE FEE CREDITS
Recorded
Final
Map
No. of
Acres
Water
Wastewater
Transportation
Drainage
$ .00 $ .00 $ .00 $ .00
$ .00 $ .00 $ .00 $ .00
$ .00 $ .00 $ .00 $ .00
VERIFICATION
The City of Lincoln hereby verifies that the PFE Credits listed above are currently owned by TRANSFEREE and available for transfer to TRANSFEROR.
By:
Name:
Title: Director of Support Services
99 Stardust Development Agreement
Exhibit G
1536606.2 13583-026 Village 1 PFE Fee Credit Agmt Form (draft 1-20-17) 12
CITY OF LINCOLN
PUBLIC FACILITIES ELEMENT (PFE) FEE CREDIT/REIMBURSEMENT
AGREEMENT
VILLAGE 1
[LIST CONSTRUCTING OWNER HERE] [LIST FACILITY HERE]
This PFE Fee Credit Agreement (the “Agreement”) is entered into by and between the City of Lincoln (hereinafter the “City”) and ___________________________ a________________, and/or its successors in interest, (hereinafter the “Constructing Owner”) as of the day of__________________________ , 20 ____(the “Effective Date”).
RECITALS
WHEREAS, Constructing Owner is developing the ___________________________ development (the “Project”), including PFE improvements that will serve the Project and other areas of the City; and,
WHEREAS, on September 13, 2016, the City Council of City of Lincoln adopted Resolution 2016- 181, which approved the Village 1 Exh Plan for the Specific Plan Area (the “IFP”). The IFP includes the required construction of the PFE facilities and established provisions associated with PFE Fee Credits within the Village 1 Specific Plan Area (the “Plan Area”); and WHEREAS, Constructing Owner is required, as a condition of development of the Project per the IFP, or has otherwise agreed (with City’s approval), to construct or cause to be constructed the PFE facilities and improvements described in Exhibit A hereto, which are included within the improvement plans titled ________________________________, date ___________, 20 (hereinafter the “PFE Facilities”); and
WHEREAS, City and Constructing Owner have previously entered into a Development Agreement dated ______________________, 20 (and, as may be amended, herein referred to as the “DA”), which contains provisions governing the terms for PFE Fee Credits, and which are not intended to be amended in any way by this Agreement; and WHEREAS, administration of the City’s PFE Fee Program will be the responsibility of the City’s Director of Support Services, or their designee (the “Administrator”); and WHEREAS, City has agreed to allow Constructing Owner to execute a contract to design and construct the PFE Facilities; and
WHEREAS, Constructing Owner has entered into a contract with (name of Contractor) for construction of the PFE Facilities (the “Construction Contract”); and WHEREAS, City and Constructing Owner desire to enter into an agreement to provide for allowable reimbursements from the Village 1 Non -Critical Component of the PFE Fees (the “Village 1 PFE Pool”), as defined and described in IFP and the City’s Public F acilities Element Implementation Plan and Policies (the “PFE Policy”), by the City to Constructing Owner for certain costs of design and construction of the PFE Facilities, which PFE Fee Credits may, at Constructing Owner’s discretion, be applied as credits against the Non-Critical Component of the specific PFE 100
Stardust Development Agreement
Exhibit G
1536606.2 13583-026 Village 1 PFE Fee Credit Agmt Form (draft 1-20-17) 13
Fees (the “PFE Fee Credits”) by the Constructing Owner or their transferee; and WHEREAS, this Agreement will not apportion any PFE Fee Credits that Constructing Owner may elect to apply as PFE Fee Credits to any particular real property. Such apportionment shall be accomplished at Constructing Owner’s discretion to any portion or portions of the Constructing Owner’s Property as described herein;
NOW, THEREFORE, in consideration of the mutual promises contained herein, City and Constructing Owner agree as follows:
SECTION 1. DEFINITIONS
All terms not otherwise described herein shall have the meaning described thereto in the PFE Policy, IFP and DA.
SECTION 2. PURPOSE OF THE AGREEMENT
This Agreement is not intended to modify or amend in any way the rights and obligations defined in the PFE Policy, the IFP or the DA related to the construction of PFE projects and earned PFE Fee Credits. The purpose of the Agreement is to specify the PFE Facilities, the related earned PFE Fee Credits and the options available to the Constructing Owner in regards to application of earned PFE Fee Credits.
SECTION 3. CONSTRUCTION OF PFE FACILITIES
Constructing Owner shall complete construction of the PFE Facilities in accordance with the plans and specifications approved by the City Engineer, and in accordance with City improvement standards and this Agreement. Constructing Owner understands and acknowledges that the terms and conditions contained in any contract that Constructing Owner has or may execute with any contractors or material suppliers regarding the construction of the PFE Facilities shall have no force or effect upon this Agreement. Constructing Owner is solely responsible for all contract payment obligatio ns and may not rely upon reimbursement under the Village 1 PFE Pool for purpose of payment to contractors.
SECTION 4. BONDS
A. Constructing Owner has posted the following securities for the PFE Facilities in favor of the City in the amounts and forms acceptable to the City Attorney:
1. To secure faithful performance in the construction of the PFE Facilities, security in an amount equal to one hundred (100%) percent of the estimated cost of the work in the Preliminary Engineer’s Estimate (see Exhibit A), including but not limited to cost of the PFE Facilities, engineering, inspection, fees and incidental expenses, as determined by the City Engineer.
2. To secure payment to the contractor, subcontractors, and to persons furnishing labor, materials, or equipment to them, security in an amount equal to one hundred (100%) percent of the estimated cost of the work in the Preliminary Engineer’s Estimate (see 101
Stardust Development Agreement
Exhibit G
1536606.2 13583-026 Village 1 PFE Fee Credit Agmt Form (draft 1-20-17) 14
Exhibit A), including but not limited to cost of the PFE Facilities, engineering, inspection, fee and incidental expenses, as determined by the City Engineer.
3. If applicable, to secure payment of the cost of setting of monuments, security in an amount equal to one hundred (100%) percent of the estimated costs of setting such monuments as determined by the City Engineer.
B. To secure the guarantee and warranty of the work for a period of one (1) year following the completion and acceptance of the PFE Facilities, security in an amount equal to fifteen (15%) percent of the actual cost of the work performed, including but not limited to cost of the PFE Facilities, engineering, inspection, fees and incidental expenses, as determined by the City Engineer shall be filed with the City prior to the final acceptance of the PFE Facilities by the City.
C. If security is furnished in the form of a bond or bonds, such bonds shall be executed by a corporate surety company authorized to transact surety business in the State of California.
D. If Constructing Owner shall fail or neglect to comply with the provisions of this Agreement, the C ity shall have the right at any time to cause said provisions to be met by any lawful means, and thereupon recover from the Constructing Owner and/or his/her surety the full cost and expense incurred.
SECTION 5. EARNED PFE FEE CREDITS
City and Constructing Owner agree that the amount of PFE Fee Credits earned to the Constructing Owner hereunder shall be as set forth on Exhibit B hereto and made a part hereof, which shall indicate if the PFE Facilities are subject to a final “true up” as described in section 9 of this Agreement. A “true up” would include the reconciliation of actual costs, for both “hard costs” and “soft costs”, through the documents as required in Section 8. “Hard Costs” could include the costs of (i) construction of the PFE Facilities, base d on the price included in the Construction Contract and actually paid to the contractor for the construction of the PFE Facilities, (ii) traffic control, staging and storm water pollution prevention implementation measures (i.e., structural BMPs) related to such construction, and (iii) habitat mitigation required as a mitigation measure in connection with the construction of such PFE Facilities. Hard Costs shall include the costs of any changes in scope or standards required by the City during the course of construction thereof that are added to the Construction Contract. “Eligible Hard Costs” means all of the Hard Costs incurred by the Constructing Owner to construct the PFE Facilities, except to the extent the Administrator, in consultation with the City Engineer excludes costs found to be commercially unreasonable. Evidence that costs are based on a properly bid construction contract shall be prima facie evidence that costs are commercially reasonable. In no event shall the PFE Fee Credits exceed the amou nts actually paid for Eligible Hard Costs.
Construction Owner shall provide documentation as required by the Administrator, which may include but is not limited to proof of payment and lien releases from all contractors, subcontractors, and suppliers for all costs for which it seeks reimbursement or credit under this Agreement. “Soft Costs” could include the costs of planning, design and financing of the PFE Facilities construction project, storm water pollution prevention monitoring & management (i.e., non - structural BMPs), engineering, inspection, geotechnical oversight and monitoring, testing, 102
Stardust Development Agreement
Exhibit G
1536606.2 13583-026 Village 1 PFE Fee Credit Agmt Form (draft 1-20-17) 15
surveying, outside agency review fees, and bonding related to the construction of the PFE Facilities. “Eligible Soft Costs” means all of the Soft Costs incurred by the Constructing Owner to construct the PFE Facilities, except to the extent the Administrator, in consultation with the City Engineer excludes costs found to be commercially unreasonable. Evidence that costs are based on a properly bid contracts shall be prima facie evidence that costs are commercially reasonable. In no event shall the PFE Fee Credits exceed the amounts actually paid for Eligible Soft Costs.
Construction Owner shall provide documentation as required by the Administrator, which may include but is not limited to proof of payment and lien releases from all contractors, subcontractors, and suppliers for all costs for which it seeks reimbursement or credit under this Agreement.
PFE Fee Credits related to the construction of PFE Facilities subject to a final “true up” shall be equal to the Eligible Hard Costs and Eligible Soft Costs (collectively, the “Total Eligible Costs”) and shall be set forth on Exhibit B upon execution of this Agreement.
In the event of any disagreement between the Constructing Owner and the Administrator and City Engineer on the initial calculation of the Total Eligible Costs, if all other conditions to the entry of this Agreement have been satisfied, the Constructing Owner may elect to enter this Agreement without having the amount of the Total Eligible Costs resolved and listed on Exhibit B.
In such case, Constructing Owner’s right hereunder to apply any portion of the PFE Fee Credits (or the disputed amount thereof) will be deferred until such disagreement is resolved by the Constructing Owner and the City. If the Constructing Owner, the Administrator and the City Engineer are unable to resolve any disputed amounts after the parties have engaged in good faith meetings and exchange of documents in support of their positions, the appeal provisions in Section 30 of this Agreement shall apply. The parties shall use their best efforts to resolve any such dispute within sixty (60) days of the cost document submission by the Constructing Owner.
Pending the resolution of any such dispute, the Constructing Owner shall pay any and all required PFE Fees and City shall retain any PFE Fees paid by the Construction Owner after the Effective Date of this Agreement for potential refund upon resolution of such PFE Fee Credit dispute. The amount of PFE Fee Credits retained pending resolution of any PFE Fee Credit dispute shall not exceed the disputed amount. Upon resolution of any PFE Fee Credit dispute, and within twenty (20) business days of resolution of the PFE Fee Credit di spute, the Administrator shall amend Exhibit B to provide the final amount of the PFE Fee Credits allowed hereunder.
Constructing Owner shall then have thirty (30) calendar days after receipt of the completed Exhibit B to retroactively apply any portion of such PFE Fee Credit to the Constructing Owner’s intervening development of the Project and obtain an equivalent refund of PFE Fees collected and retained from the Constructing Owner after the Effective Date of this Agreement pending the resolution of the PFE Fee Credit dispute. If Constructing Owner does not elect within such time to have any of the PFE Fee Credits applied to the Constructing Owner’s intervening development of the Project, then any PFE Fee Credits previously collected and retained from the Constructing Owner during such period shall remain eligible for future application or reimbursement.
SECTION 6. PFE FEE CREDITS - APPLICATION, REIMBURSEMENT OR
TRANSFER
PFE Fee Credits earned by the Constructing Owner; (1) may be applied towards PFE fees related to the Constructing Owner’s Property in accordance with the PFE Policy, (2) may be 103
Stardust Development Agreement
Exhibit G
1536606.2 13583-026 Village 1 PFE Fee Credit Agmt Form (draft 1-20-17) 16
requested for reimbursement from the Village 1 PFE Pool, or (3) may be transfer red to another landowner within the Plan Area.
SECTION 7. PRIORITY FOR REIMBURSEMENT PAYMENT FOR PFE FEE
CREDITS
The priority of reimbursement payments for PFE Fee Credits shall be on a Calendar -Year Priority basis, as described in the IFP. As provided in the IFP, a constructing entity (herein defined as a Constructing Owner) achieves a given Calendar -Year Priority when it has a fully executed PFE Fee Credit Agreement and has expended at least 30 percent of the Eligible Hard Costs for the PFE Facilities included in such agreement. Based on the estimated schedule for construction of the PFE Facilities, the parties anticipate that Constructing Owner will complete 30% of the Eligible Hard Costs of the PFE Facilities, which 30% completion will establish the Calendar-Year Priority for a potential reimbursement hereunder, by Calendar-Year 20 . Constructing Owner shall notify the City upon expenditure of 30% of the Eligible Hard Costs of the PFE Facilities and, subject to confirmation thereof by the Administrato r and the City Engineer, the City shall provide written notice to Constructing Owner of the Calendar-Year Priority. City shall provide Constructing Owner with the written notice required herein within 30 calendar days of the receipt of the written notification by the Constructing Owner of the expenditure of 30% of the Eligible Hard Costs.
Requested reimbursements for PFE Fee Credits shall be paid out first on the PFE Fee Credit Agreement(s) with the earliest Calendar -Year Priorities, until paid in f ull (i.e., a PFE Fee Credit Agreement with an earlier Calendar-Year Priority shall receive all available funds in the Village 1 PFE Pool until paid in full prior to any reimbursements being paid pursuant to a PFE Fee Credit Agreement with a later Calendar-Year Priority. If two or more PFE Fee Credit Agreements have the same Calendar -Year Priority (“Equal -Priority Agreements”), after payment in full on any reimbursement for an earlier Calendar -Year Priority, the reimbursements on such Equal -Priority Agreements shall be paid out pro rata, based on the relative amount of then requested reimbursements due thereunder at the time of such payment. For example, if at the time of payment of any reimbursement hereunder, another constructing owner was requeste d reimbursements pursuant to PFE Fee Credit Agreement with the same Calendar-Year Priority as this Agreement, then such payment would be divided between the Constructing Owner and the other constructing owner in proportion to the relative amounts of reimbursements then requested under the respective Agreements.
In accordance with the applicable Calendar -Year Priorities, the reimbursement hereunder shall be paid to Constructing Owner when the PFE Facilities are completed as determined by the City Engin eer (“Completion”) and accepted by the City in writing, or such earlier date after Completion that the City Engineer deems appropriate. The reimbursement shall be paid by the City as fee revenues from the Village 1 PFE Pool are collected within the Plan Area. After Completion of the PFE Facilities, such payments shall be made by the City at least quarterly throughout the year as funds become available.
The obligation arising from this Agreement is not a debt of the City, nor a legal or equitable pledge, charge, lien, or encumbrance, upon any of its property, or upon any of its income, receipts, or revenues, and is payable only and solely from the Village 1 PFE Pool.
SECTION 8. TRANSFER OF PFE FEE CREDITS
104
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Exhibit G
1536606.2 13583-026 Village 1 PFE Fee Credit Agmt Form (draft 1-20-17) 17
PFE Fee Credits are personal to Constructing Owner and do not run with the Project that is generating such credits. Provided the Constructing Owner has no outstanding monetary obligation to the City within the Project Area, Constructing Owner may, at its sole option and discretion, assign the rights to PFE Fee Credits, including the right to request reimbursements against the Village 1 PFE Pool, to any other landowner within the Plan Area, subject to the conditions and limitations herein regarding the application of such PFE Fee Credits.
If Constructing Owner has an outstanding monetary obligation to the City as noted above, then the City may require the monetary obligation to be met before transfer of the PFE Fee Credit owned by Constructing Owner. Any assignment of the rights to PFE Fee Credits shall be made in writing and delivered to the Administrator in the form attached hereto as Exhibit C. Assigned PFE Fee Credits carry the same priority the assignor had in the credits.
SECTION 9. “TRUE UP” OF PFE FEE CREDITS
Upon completion of the PFE Facilities by the Constructing Owner and acceptance thereof by the City, the final determination of actual Eligible Hard Costs upon which the PFE Fee Credits amount is based shall be determined by the Administrator, in consultation with the City Engineer, based on documentation thereof provided by Constructing Owner to the Administrator’s and City Engineer’s reasonable satisfaction. For construction change orders to be given consideration for reimbursement, the Constructing Owner must:
• Present the change order request and estimated cost along with supporting information to the Administrator and City Engineer; and
• Fully document any work performed under a change order to verify all associated costs.
Failure to comply with any of these procedures may result in the ineligibility of the requested change order for such PFE Fee Credits.
To secure final PFE Fee Credits, Constructing Owner shall provide the following items to the Administrator and City Engineer in order for each to determine the actual Eligible Hard Costs and Eligible Soft Costs incurred by Constructing Owner for the PFE Facilities that qualify for PFE Fee Credits:
(1) Copies of the original Construction Contract and any change orders that have been agreed to by the Constructing Owner, contractor, and the City. The portion of each change order associated with the PFE Facilities must be itemized separately; (2) Copies of all invoices, with unconditional lien releases, submitted by the contractor and suppliers;
(3) Copies of all checks issued by the Constructing Owner with related invoices indicated;
(4) A summary tabulation of all contractor and supplier invoices and Constructing Owner payments; and
105
Stardust Development Agreement
Exhibit G
1536606.2 13583-026 Village 1 PFE Fee Credit Agmt Form (draft 1-20-17) 18
(5) Prevailing Wage Certification, or documentation acceptable to the City Attorney of an exception to the applicability of prevailing wage.
If, when the final reconciliation of Total Eligible Costs for the PFE Facilities is conducted by the Administrator, the actual Total Eligible Costs for the PFE Facilities exceeds the amount of PFE Fee Credits initially provided hereunder, the Administrator shall review items (1) through above and determine if the actual Total Eligible Costs will serve as the basis for determination of the amount of the PFE Fee Credits earned by the Constructing Owner should be increased above the amount described in Exhibit B of this Agreement. The Administrator, in consultation with the City Engineer, shall determine how much of the actual construction costs should be included in any increase to the Total Eligible Costs and Exhibit B shall be adjusted accordingly.
If the final reconciliation determines that Total Eligible Costs are less than the amount of PFE Fee Credits initially provided hereunder, the Administrator shall notify the Constructing Owner of such reduction of the PFE Fee Credits and Exhibit B shall be revised accordingly. If the amount of PFE Fee Credits applied towards the PFE Fees exceeds the final amount of Total Eligible Costs that supported such PFE Fee Credits, then the Constructing Owner shall repay the amount of the PFE Fee Credits that were ap plied in excess of the confirmed Total Eligible Costs within sixty (60) calendar days of receipt of notice from the Administrator of the amount to be repaid.
In no event shall PFE Fee Credits exceed the amounts actually paid by Constructing Owner for Total Eligible Costs. Any determination by the Administrator and City Engineer under this Section shall be subject to the appeal rights set forth in Section 30 of this Agreement.
SECTION 10. FAILURE TO COMPLETE CONSTRUCTION.
Failure to complete work within the scope of this Agreement may affect the Calendar -Year Priority Status for the reimbursement hereunder, may result in termination of the PFE Fee Credits and termination of the right to apply PFE Fee Credits, and may require repayment of any PFE Fee Credits applied, as deemed appropriate by the Administrator. In connection therewith, the Administrator may determine that the Constructing Owner shall not be entitled to further PFE Fee Credits until completion of the PFE Facilities as determined by the City Engineer. A change in the Calendar-Year Priority for any reimbursement will be evaluated from the previously determined Calendar-Year Priority to the date of completion, which may affect priority for the reimbursement.
Any determination by the Administrator and City Engineer to invoke the provisions of this Section shall be subject to the appeal rights set forth in Section 30 of this Agreement.
SECTION 11. INSPECTION
City and its authorized representatives shall, at all times have access to the construction site during construction of the PFE Facilities and Constructing Owner shall furnish City with all reasonable information necessary for ascertaining full knowledge of the PFE Facilities with respect to the progress, workmanship, and character of materials and equipment used and employed in the work.
Whenever the contractors retained by Constructing Owner vary the normal period during which work or any portion of it is carried out on each day, Constructing Owner shall give timely 106
Stardust Development Agreement
Exhibit G
1536606.2 13583-026 Village 1 PFE Fee Credit Agmt Form (draft 1-20-17) 19
notice to the City Engineer so that if he or she wishes, be present to observe the work in progress. If Constructing Owner fails to give such timely notice, any work done in the absence of the City representative will be subject to rejection. Constructing Owner shall give timely notice to the City Engineer in advance of backfilling or otherwise covering any part of the work so that the City’s representative may, if he or she wishes, observe the work before it is concealed.
Notwithstanding any provision to the contrary, all PFE Fac ilities shall be subject to City inspection for compliance with City requirements prior to issuance of a Letter of Acceptance by the City Engineer. Observation of the work or inspection by the City shall not relieve Constructing Owner or its sureties of full responsibility for defective materials or workmanship or any of its obligations to complete construction in accordance with the plans and specifications approved by the City Engineer.
SECTION 12. COMPLIANCE WITH PREVAILING WAGE LAWS
Unless otherwise authorized by City Charter, City ordinance, or applicable State statutory or common law, pursuant to the provisions of Articles 1 and 2 of Chapter 1, Part 7, Division II of the Labor Code of the State of California (Labor Code Sections 1720 et seq . (“Prevailing Wage Laws”)), all work shall be performed in compliance which the Prevailing Wage Laws and not less than the general prevailing rate of per diem wages, and not less than the general prevailing rate of per diem wages for holidays and overtime work, for each craft, classification or type of worker needed to execute the work contemplated under this Agreement shall be paid to all workers, laborers, and mechanics employed in the execution of said work by the Constructing Owner or the Constructing Owner’s contractor, or by any subcontractor doing or contracting to do any part of said work. The appropriate determination of the Director of the California Department of Industrial Relations shall be filed by the Constructing Owner with, and made available for inspection at the office of the City Clerk.
Constructing Owner shall require all contractors to register with the Department of Industrial Relations in accordance with Labor Code section 1725.5. Constructing Owner shall require its contractor to post, at each jobsite, a copy of such prevailing rate of per diem wages as determined by the Director of the California Department of Industrial Relations. No PFE Fee Credits shall be permissible without full compliance with the Prevailing Wage Laws.
SECTION 13. INSURANCE
Constructing Owner shall require its contractor to carry and maintain for three (3) years after City Acceptance of the PFE Facilities, such public liability, property damage and contractual liability, auto, Workers’ Compensation, Builders’ Risk Insurance and other insurance coverage as required by the City in accordance with the improvement plan specifications for the PFE Facilities.
The contractor shall name the City as an additional insured. For any claims related to the PFE Facilities, the contractor’s general liability and automobile insurance coverage shall be primary insurance in their coverage of the City and its officers, officials, employees, agents, or volunteers, and any insurance or self -insurance maintained by the C ity, its officers, officials, employees, agents or volunteers shall be excess of the contractor’s insurance and shall not contribute with it.
SECTION 14. ACCEPTANCE AND CONVEYANCE OF FACILITIES
107
Stardust Development Agreement
Exhibit G
1536606.2 13583-026 Village 1 PFE Fee Credit Agmt Form (draft 1-20-17) 20
Once Constructing Owner has completed construction of the PFE Facilities and the PFE Facilities are deemed satisfactory by the City Engineer following City inspection, the City Engineer may recommend that City Council accept the PFE Facilities, including all associated easements and offers of dedication, provided that all liens, claims and encumbrances in connection with the PFE Facilities have been released and the required warranty bond has been provided to the City. No acceptance shall be valid without the Constructing Owner conveying and vesting full, complete and clear title in said PFE Facilities to the City at the time of acceptance.
SECTION 15. LIENS, CLAIMS, AND ENCUMBRANCES
Prior to the City’s acceptance of any PFE Facilities, Constructing Owner shall clear any and all liens, claims and encumbrances from said Facility as a condition of acceptance by the City.
SECTION 16. DELIVERY OF AS-BUILT PLANS AND SPECIFICATIONS Prior to acceptance of PFE facilities by City, Constructing Owner shall deliver to City copies of all as -built plans (if any), specifications, operating manuals, service manuals, warranties and other documents relating to the design, construction, and operation of the PFE Facilities described in this Agreement. Upon acceptance of the PFE Facilities, City shall file Notice of Completion with Placer County.
SECTION 17. INDEMNIFICATION
The Constructing Owner, by execution of this Agreement, specifically agrees to protect and assume the defense of, indemnify and hold harmless City and its elected representatives, officers, employees, agents and consultants (the “Indemnitees”), from and against all liabilities, actions, lawsuits, damages, claims, losses, or expenses of every type and description, including attorneys’ and consultants’ fees and expenses, (collectively, “Liabilities”), to which they may be subjected or put, by reason of or resulting from the design, construction, or installation of the PFE Facilities, except to the extent the Liabilities arise from the sole negligence, or willful misconduct of City and/or the Indemnitees. This indemni fication shall extend to Liabilities occurring after this Agreement is terminated as well as while it is in force. Notwithstanding the foregoing, following the acceptance of the improvements by City, or if there is an applicable warranty, following the end of any applicable warranty period, the Constructing Owner shall not be obligated to indemnify the Indemnitees for Liabilities to the extent that such Liabilities arise from Indemnitees’ active or passive negligence following acceptance of the PFE Facilities.
SECTION 18. THIRD PARTY LIABILITY
City does not assume any liability, duty or obligation to Constructing Owner’s contractors, subcontractors, agents or any person or entity not a party to this Agreement by execution or performance of this Agreement, and no contractors, subcontractors, agents or any parties are third party beneficiaries of this Agreement.
SECTION 19. WARRANTY
Constructing Owner hereby warrants the PFE Facilities as to materials, design and workmanship and should any defect or failure of the PFE Facilities, or any parts thereof, occur 108
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Exhibit G
1536606.2 13583-026 Village 1 PFE Fee Credit Agmt Form (draft 1-20-17) 21
within a period of one (1) year after final acceptance by City, Constructing Owner shall promptly cause the needed repairs to be made without any expense or cost to the City. Final acceptance shall be deemed to have occurred under this Agreement when the PFE Facilities have been accepted by the City pursuant to a written acceptance from the City Engineer, and is placed into actual service.
City shall provide written notification to Constructing Owner of final acceptance by the City.
City is hereby authorized to make repairs if Constructing Owner fails to make, or undertake with due diligence, the aforesaid repairs within twenty (20) calendar days after it is given written notice of such defect or failure. In case of emergency, where in the opinion of the City Engineer delay may cause serious hazard to the public, the necessary repairs may be made by the City without prior notice to Constructing Owner. All costs of the repair, if not paid by the Constructing Owner within twenty (20) calendar days of notice from the Administrator to the Constructing Owner, shall be paid out Warranty Bond. In no event shall the City be responsible for the cost of the repair within the warranty period. In all cases of defect or fai lure within the warranty period where the City has taken action in accordance with this paragraph, Constructing Owner shall promptly reimburse City and, if applicable, the Warranty Bond shall fund the repair for any and all costs or expenses, direct or indirect, incurred by the City. The foregoing is in addition to, and shall not in any way limit or affect, the rights of the City to enforce the warranty obligations of Constructing Owner hereunder and to recover any and all costs thereof from the warranty bond posted thereby.
SECTION 20. BINDING ON SUCCESSORS AND ASSIGNS
Each and every provision of this Agreement shall be binding upon and shall inure to the benefit of the respective successors and assigns of the parties hereto, in the same manner as if such parties had been expressly named herein.
SECTION 21. AUTHORITY TO ENTER INTO AGREEMENT
Constructing Owner and City certify that they have the authority and are legally empowered to enter into this Agreement on behalf of their entity and to bind their party to the performance of its obligations hereunder.
SECTION 22. NOTICES
Any notices, requests, demands or other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given on the date of service if served personally (FedEx and similar services, each of which is hereinafter called an “Express Courier,” shall be considered to be personal service) or by telephone facsimile or other electronic transmission (provided that the sender of a telephone facsimile or other electronic transmission has received confirmation of successful transmission by the sending fax machine), and upon receipt, if mailed to the party to whom notice is to be given, by first-class mail, registered or certified, postage prepaid, return receipt requested, and properly addressed as follows:
(a) If to City:
City of Lincoln
Attn: Director of Support Services / Administrator 600 Sixth Street 109
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Exhibit G
1536606.2 13583-026 Village 1 PFE Fee Credit Agmt Form (draft 1-20-17) 22
Lincoln, CA 95648
Telephone: (916) 434-2400
Facsimile: (916) _______________
With a copy to:
City of Lincoln Attn: City Engineer 600 Sixth Street
Lincoln, CA 95648
Telephone: (916) 434-2400
Facsimile: (916) __________
(b) If to Constructing Owner:
[fill in notice information for Constructing Owner]
Either party may change its mailing address at any time by giving written notice of such changes to the other party in the manner provided herein.
SECTION 23. NOTICE OF CONTRACTORS
Constructing Owner shall provide a copy of this Agreement to any contractors, subcontractors, or other parties performing work on the PFE Facilities, prior to commencement of construction by said party.
SECTION 24. TERM
The term of this Agreement shall start on the day and year duly executed by all parties and shall remain in effect until all the terms and conditions contained in this Agreement have been satisfied.
SECTION 25. SEVERABILITY
If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining portions hereof shall not in any way be affected or impaired thereby.
SECTION 26. CONFLICTS
This agreement is intended to implement and be consistent with the requirements of the PFE Policy. Therefore, in the event of any conflicts between the PFE Policy and this Agreement, the requirements of the PFE Policy shall prevail and control.
SECTION 27. EXHIBITS
The Exhibits attached hereto are hereby incorporated herein by this reference.
SECTION 28. ENTIRE AGREEMENT
This Agreement constitutes the entire understanding of the parties regarding the subject matter hereof. The Agreement may be amended only by writing executed by both parties. 110
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Exhibit G
1536606.2 13583-026 Village 1 PFE Fee Credit Agmt Form (draft 1-20-17) 23
SECTION 29. RIGHT OF APPEAL
Constructing Owner may appeal any final determination by the Administrator and/or City Engineer to the City Manager and thereafter to the City Council. Prior to submitting the matter to the City Council, the City Manager may, in his/her discretion, elect to engage the services of a mediator to attempt to mediate the dispute in a non-binding fashion, not to exceed a total of thirty calendar days. Any decision of the City Council shall be final with no right of further appeal or action thereafter.
SECTION 30. EFFECTIVE DATE
The City’s execution of this Agreement shall be contingent upon confirmation by the Administrator, in co nsultation with the City Engineer, that (i) a Construction Contract has been properly bid and entered into for construction of the PFE Facilities, (ii) performance and payment bonds have been posted in form and amount required by the City, and (iii) a Notice to Proceed has been given to the contractor for the PFE Facilities. The date of such execution by the City, based in part on the City’s confirmation of the satisfaction of the foregoing conditions, shall be deemed to be the “Effective Date” of this Agreement. Upon execution of this Agreement by the City, the City shall insert the Effective Date in the Preamble to this Agreement and provide a copy of this fully executed and dated Agreement to Constructing Owner. [SIGNATURE PAGE FOLLOWS]
111
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Exhibit G
1536606.2 13583-026 Village 1 PFE Fee Credit Agmt Form (draft 1-20-17) 13
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above-written.
CITY:
CITY OF LINCOLN,
a municipal
corporation
CONSTRUCTING OWNER:
(INSERT CONSTRUCTING OWNER
SIGNATURE BLOCK)
By:
Its: City Manager a
ATTEST:
By:
Its: City Clerk
APPROVED AS TO CONTENT:
By:
Name:
Title:
Date:
By:
Its: City Engineer
APPROVED AS TO CONTENT:
By:
Its: Director of Support Services
APPROVED AS TO FORM:
By:
Its: City Attorney
112
Stardust Development Agreement
Exhibit G
1536606.2 13583-026
14 EXHIBIT A
PFE FACILITIES AND IMPROVEMENTS
(Including Preliminary Engineer’s Estimate of Facility Costs)
(to be attached)
113
Stardust Development Agreement
Exhibit G
1536606.2 13583-026
15 EXHIBIT B
IDENTIFICATION OF PFE FEE CREDITS VILLAGE 1 PLAN AREA
[Insert Name of Constructing Owner Here]
[List Facility Here]
Date of Agreement: , 20
PFE Fee Credits: $
Value in PFE Reconciled
Project List “True Up” Costs
PFE Fee Credits Based Upon:
114
Stardust Development Agreement
Exhibit G
1536606.2 13583-026
16 EXHIBIT C
FORM OF CERTIFICATE OF
ASSIGNMENT AND TRANSFER
OF PFE FEE CREDITS
The undersigned Constructing Owner, as the holder of certain PFE Fee Credits related to the PFE Fee Credits Agreement between Constructing Owner and the City of Lincoln, dated
(the “Agreement”), and with a Calendar-Year
Priority of 20 , hereby assigns, transfers and conveys to the undersigned Assignee the PFE Fee Credits as indicated below:
Constructing Owner’s Legal Name:
Assignee’s Legal Name:
[Detailed list of PFE Fee Credits descriptions and amounts]
$
$
$
$
CONSTRUCTING OWNER: ASSIGNEE/HOME BUILDER:
a a
By:
Name:
Title:
Date:
115
Stardust Development Agreement
Exhibit G
1536606.2 13583-026
17 By:
Name:
Title:
Date:
Constructing Owner Contact:
Name:
Address:
Assignee/Home Builder Contact:
Name:
Address:
Telephone:
Facsimile:
E-Mail:
Telephone: Facsimile:
E-Mail:
116
Stardust Development Agreement
Exhibit H
1536616.1 13583-026 Village 1 IFP Fee Reimbursement Agmt Form (draft 1-20-17) 15
CITY OF LINCOLN
VILLAGE 1 - INFRASTRUCTURE FINANCE PLAN FEE REIMBURSEMENT
AGREEMENT
[LIST CONSTRUCTING OWNER HERE] [LIST FACILITY HERE]
This Fee Reimbursement Agreement (the “Agreement”) is entered into by and between the City of Lincoln (hereinafter the “City”) and_____________________, ________________, and/or its successors in interest, (hereinafter the “ Constructing Owner ”) as of the day of _____20 ____ (the “Effective Date”).
RECITALS
WHEREAS, Constructing Owner is developing the ____________________development (the “Project”), including backbone infrastructure and/or required public facilities and improvements that will serve the Project; and,
WHEREAS, Constructing Owner is required, as a condition of development of the Project per the Lincoln Village 1 Infrastructure and Public Financing Plan, or has otherwise agreed (with City’s approval), to construct or cause to be constructed the facilities and improvements described in Exhibit A hereto, which are included within the improvement plans titled , dated _________ 20___________ (hereinafter the “Facilities”); and WHEREAS, on September 13, 2016, the City Council of the City of Lincoln adopted Resolution 2016-181, which approved the Village 1 Infrastructure Finance Plan for the Specific Plan Area (the “ IFP”). The IFP includes the implementation of the Village 1 Plan Area Fee Program (the “Plan Area Fee Program”), establishing the Plan Area Fees (the “Fees”) to pay for a variety of public facilities (the “Facilities”) and established provisions associated with fee credits and reimbursements within the Village 1 Specific Plan Area (the “Plan Area”). In connection with the adoption of the I FP, the City Council approved a nexus study (the “Study”) establishing the relationship between the Fees and Facilities for the Plan Area; and WHEREAS, City and Constructing Owner have previously entered into a Development Agreement dated , 20 (and, as may be amended, herein referred to as the “DA”), which contains provisions governing the terms for reimbursements and credits, and which are not intended to be amended in any way by this Agreement; and WHEREAS, administration of the Plan Area Fee Program will be the responsibility of the City’s Director of Support Services, or their designee (the “Administrator”); and WHEREAS, City has agreed to allow Constructing Owner to execute a contract to design and construct the Facilities; and
WHEREAS, Constructing Owner has entered into a contract with (name of Contractor) for construction of the Facilities (the “Construction Contract”); and WHEREAS, City and Constructing Owner desire to enter into an agreement to provide for allowable reimbursements from the Infrastructure Fee Component of the Fees (the “Fee 117
Stardust Development Agreement
Exhibit H
1536616.1 13583-026 Village 1 IFP Fee Reimbursement Agmt Form (draft 1-20-17) 16
Reimbursements”), as defined and described in IFP, by the City to Constructing Owner for certain costs of design and construction of the Facilities, which Fee Reimburs ements may, at Constructing Owner’s discretion, be applied as credits against the Infrastructure Fee Component of the Fees (the “Fee Credits”) within the Constructing Owner’s Property as that term is defined in the DA described herein and in Section 2 hereof; and WHEREAS, this Agreement will not apportion any Fee Reimbursements that Constructing Owner may elect to apply as Fee Credits to any particular real property. Such apportionment shall be accomplished at Constructing Owner’s discretion to any portion or portions of the Constructing Owner’s Property as described herein;
WHEREAS, Section 4.3 of the DA provides that any Fee Reimbursement Agreement shall provide that certain provisions of the IFP and the DA (as set forth more particularly below) shall be protected from the effects of any proposed amendments of provisions related to reimbursement and credits, and Section 2.2.1 of the DA vests provisions related to the establishment of fee reimbursement and credit provisions for advance-funded improvements.
NOW, THEREFORE, in consideration of the mutual promises contained herein, City and Constructing Owner agree as follows:
SECTION 1. DEFINITIONS
All terms not otherwise described herein shall have the meaning described thereto in the IFP.
SECTION 2. RESTATED AGREEMENT IMPLEMENTING VESTED PROVISIONS OF IFP; MAP OF CONSTRUCTING OWNER’S PROPERTY.
This Agreement is intended to implement and not to modify or amend in any way the vested provisions of the IFP or the DA related thereto or the provisions of the Study or the IFP.
Consistent with the limitations in Section 4.3 of the DA, the “Constructing Owner’s Property,” within which Fee Reimbursements may be applied as credits against the Infrastructure Fee Component of the Fee as provided herein, is shown on the map attached hereto as Exhibit B (the “Map of Constructing Owner’s Property”), and may also include additional property contiguous thereto, not exceeding five percent (5%) in area, that may hereafter be added to the description thereof by lot line adjustment, subdivision or other such lawful land division as requested by the Construction Owner.
SECTION 3. CONSTRUCTION OF FACILITIES
Constructing Owner shall complete construction of the Facilities in accordance with the plans and specifications approved by the City Engineer, and in accordance with City improvement standards and this Agreement. Constructing Owner understands and acknowledges that the terms and conditions contained in any contract that Constructing Owner has or may execute with any contractors or material suppliers regarding the construction of the Facilities shall have no force or effect upon this Agreement. Constructing Owner is solely responsible for all contract payment obligations and may not rely upon reimbursement under the Plan Area Fee Program for purpose of payment to contractors, provided Constructing Owner may assign its rights to such 118
Stardust Development Agreement
Exhibit H
1536616.1 13583-026 Village 1 IFP Fee Reimbursement Agmt Form (draft 1-20-17) 17
reimbursements to its contractors and/or lenders as additional security for such payment. All bidding and contracting for construction work shall be done to allow for the Facilities to be eligible for acquisition or construction through a community facilities district (“CFD”).
SECTION 4. BONDS
A. Constructing Owner has posted the following securities for the Facilities in favor of the City in the amounts and forms acceptable to the City Attorney:
1. To secure faithful performance in the construction of the Facilities, security in an amount equal to one hundred (100%) percent of the estimated cost of the work in t he Preliminary Engineer’s Estimate (see Exhibit A), including but not limited to cost of the Facilities, engineering, inspection, fees and incidental expenses, as determined by the City Engineer.
2. To secure payment to the contractor, subcontractors, and to persons furnishing labor, materials, or equipment to them, security in an amount equal to one hundred (100%) percent of the estimated cost of the work in the Preliminary Engineer’s Estimate (see Exhibit A), including but not limited to cost of the Facilities, engineering, inspection, fees and incidental expenses, as determined by the City Engineer.
3. If applicable, to secure payment of the cost of setting of monuments, security in an amount equal to one hundred (100%) percent of the estimated costs of setting such monuments as determined by the City Engineer.
B. To secure the guarantee and warranty of the work for a period of one (1) year following the completion and acceptance of the Facilities, securit y in an amount equal to fifteen (15%) percent of the actual cost of the work performed, including but not limited to cost of the Facilities, engineering, inspection, fees and incidental expenses, as determined by the City Engineer shall be filed with the City prior to the final acceptance of the Facilities by the City.
C. The amounts of all securities required under this Agreement shall be adjusted every two years based on the best available data, such as actual bids and contracts for construction and change orders, as reviewed and approved by the City.
D. If security is furnished in the form of a bond or bonds, such bonds shall be executed by a corporate surety company authorized to transact surety business in the State of California.
E. If Constructing Owner shall fail or neglect to comply with the provisions of this Agreement, the City shall have the right at any time to cause said provisions to be met by any lawful means, and thereupon recover from the Constructing Owner and/or his/her surety the full cost and expense incurred.
SECTION 5. ALLOWABLE FEE REIMBURSEMENT
City and Constructing Owner agree that the amount of Infrastructure Fee Reimbursements owed to Constructing Owner hereunder shall be as set forth on Exhibit C hereto and made a part hereof, subject to the final “true up” as described in Section 8 hereof. The City shall reimburse the Constructing Owner, solely from the Infrastructure Fee Component of the Fee, all Eligible Hard Costs and Soft Costs incurred by the Constructing Owner in connection with the construction of 119
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Exhibit H
1536616.1 13583-026 Village 1 IFP Fee Reimbursement Agmt Form (draft 1-20-17) 18
the Facilities, as approved by the Administrator in consultation with the City Engineer. “Hard Costs” shall consist of the costs of (i) construction of the Facilities, based on the price included in the Construction Contract and actually paid to the contractor for the construction of the Facilities, (ii) traffic control, staging and storm water pollution prevention implementation measures (i.e., structural BMPs) related to such construction, and (iii) habitat mitigation required as a mitigation measure in connection with the construction of such Facilities. Hard Costs shall include the costs of any changes in scope or standards required by the City during the course of construction thereof that are added to the Construction Contract. Hard Costs shall also include the cost for any materials that exceeded the minimum specifications required by the City, so long as the bid for the contract clearly describes the allowed minimum specification. “Eligible Hard Costs” means all of the Hard Costs incurred by the Constructing Owner to construct the Facilities, except to the extent the Administrator, in consultation with the City Engineer excludes costs found to be commercially unreasonable. Evidence that costs are based on a properly bid construction contract shall be prima facie evidence that costs are commercially reasonable. In no event shall Fee Reimbursement exceed the amounts actually paid for Eligible Hard Costs. Constructing Owner shall provide documentation as required by the Administrator, which may include but is not limited to proof of payment and lien releases from all contractors, subcontractors, and suppliers for all costs for which it seeks reimbursement or credit under this Agreement. “Soft Costs” include the costs of planning, design and financing of the Facilities construction project, storm water pollution prevention monitoring & management (i.e., non- structural BMPs), engineering, inspection, geotechnical oversight and monitoring, testing, surveying, outside agency review fees, and bonding related to the construction of the Facilities. “Eligible Soft Costs” means all of the Soft Costs incurred by the Constructing Owner to construct the Facilities, except to the extent the Administrator, in consultation with the City Engineer, excludes costs found to be commercially unreasonable. Evidence that costs are based on a properly bid contracts shall be prima facie evidence that costs are commercially reasonable. In no event shall Fee Reimbursement exceed the amounts actually paid for Eligible Soft Costs. Constructing Owner shall provide documentation as required by the Administrator, which may include but is not limited to proof of payment and lien releases from all contractors, subcontractors, and suppliers for all costs for which it seeks reimbursement or credit under this Agreement.
The Fee Reimbursement hereunder shall be equal to the Eligible Hard Costs and Eligible Soft Costs (collectively, the “Total Eligible Costs”), subject to the final “true up” as described in Section 8 below, and shall be set forth on Exhibit C upon execution of this Agreement.
In the event of any disagreement between the Constructing Owner, the Administrator and City Engineer on the initial calculation of the Total Eligible Costs, if all other conditions to the entry of this Agreement have been satisfied, the Constructing Owner may elect to enter this Agreement without having the amount of the Total Eligible Costs resolved and listed on Exhibit C (or having only the undisputed amount listed thereon as the Fee Reimbursement). In such case, Constructing Owner’s right hereunder to apply any portion of the Fee Reimbursement (or the disputed amount thereof) as credits against the Fee within the Constructing Owner’s Property will be deferred until such disagreement is resolved by the Constructing Owner and the City. If the Constructing Owner, the Administrator and the City Engineer are unable to resolve any disputed amounts after the parties have engaged in good faith meetings and exchange of documents in support of their 120
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Exhibit H
1536616.1 13583-026 Village 1 IFP Fee Reimbursement Agmt Form (draft 1-20-17) 19
positions, the appeal provisions in Section 32 of this Agreement shall apply. The parties shall use their best efforts to resolve any such dispute within sixty (60) days of the entry of this Agreement.
Pending the resolution of any such dispute, the Constructing Owner shall pay any and all required Fees (except as may be offset by Fee Reimbursements applied as Fee Credits pursuant to other Fee Reimbursement Agreements) and City shall retain any Fees paid by the Constructing Owner after the Effective Date of this Agreement for potential refund upon resolution of such fee reimbursement dispute. The amount of Fees retained pending resolution of any fee reimbursement dispute shall not exceed the disputed amount. Upon resolution of any fee reimbursement dispute, and within twenty (20) business days of resolution of the fee reimbursement dispute, the Administrator shall amend Exhibit C to provide the final amount of the Fee Reimbursement allowed hereunder. Constructing Owner shall then have thirty (30) calendar days after receipt of the completed Exhibit C to retroactively apply any portion of such Fee Reimbursements as credits to the Constructing Owner’s intervening development of the Project and obtain an equivalent refund of Fees collected and retained from the Constructing Owner after the Effective Date of this Agreement pending the resolution of the fee reimbursement dispute. If Constructing Owner does not elect within such time to have any of the Fee Reimbursement applied as credits to the Constructing Owner’s intervening development of the Project, then any Fees previously collected and retained from the Constructing Owner during such period shall be deposited into the Fee Program and applied as otherwise provided for in the IFP.
SECTION 6. ANNUAL ADJUSTMENTS TO FEE REIMBURSEMENTS
As provided in the IFP, all fee reimbursements, including those converted to fee credits, shall be adjusted annually based on the annual change to the Plan Area Fee Program.
SECTION 7. CALENDAR-YEAR PRIORITY FOR PAYMENT OF FEE
REIMBURSEMENTS
The priority of payment of the Fee Reimbursements shall be on a Calendar -Year Priority basis, as described in the IFP. As provided in the IFP, a constructing entity (herein defined as a Constructing Owner) achieves a given Calendar -Year Priority when it has a fully executed fee reimbursement agreement and has expended at least 30 percent of the Eligible Hard Costs for the plan area infrastructure improvements included in such reimbursement agreement. Based on the estimated schedule for construction of the Facilities, the parties anticipate that Constructing Owner will complete 30% of the Eligible Hard Costs of the Facilities, which 30% completion will establish the Calendar-Year Priority for the Fee Reimbursements hereunder, by Calendar-Year 20.
Constructing Owner shall notify the City upon expenditure of 30% of the Eligible Hard Costs of the Facilities and, subject to confirmation thereof by the Administrator and the City Engineer, the City shall provide written notice to Constructing Owner of the Calendar-Year Priority for payment of Fee Reimbursements to be applied by the City hereunder. City shall provide Constructing Owner with the written notice required herein within 30 calendar days of the receipt of the written notification by the Constructing Owner of the expenditure of 30% of the Eligible Hard Costs.
Outstanding Fee Reimbursements shall be paid out first on the Fee Reimbursement Agreement(s) with the earliest Calendar -Year Priorities, unt il paid in full (i.e., a Fee Reimbursement Agreement with an earlier Calendar -Year Priority shall receive all available Fee Reimbursements until paid in full prior to any Fee Reimbursements being paid pursuant to a Fee 121
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Exhibit H
1536616.1 13583-026 Village 1 IFP Fee Reimbursement Agmt Form (draft 1-20-17) 20
Reimbursement Agreement with a later Calendar-Year Priority. If two or more Fee Reimbursement Agreements have the same Calendar -Year Priority (“Equal -Priority Reimbursement Agreements”), after payment in full on any earlier Calendar -Year Priority Fee Reimbursements, the Fee Reimbursements on such Equal-Priority Reimbursement Agreements shall be paid out pro rata, based on the relative amount of then outstanding Fee Reimbursements due thereunder at the time of such payment. For example, if at the time of payment of any Fee Reimbursement hereunder, another constructing owner was owed Fee Reimbursements pursuant to Fee Reimbursement Agreement with the same Calendar -Year Priority as this Agreement, then such payment would be divided between the Constructing Owner and the other constructing owner in proportion to the relative amounts of reimbursements then owned under the respective Agreements.
In accordance with the applicable Calendar -Year Priorities, the Fee Reimbursement hereunder shall be paid to Constructing Owner when the Facilities are comple ted as determined by the City Engineer (“Completion”) and accepted by resolution of the City Council accepting the improvements and directing the City Clerk to file a Notice of Completion with the Placer County Recorder. The Fee Reimbursement shall be paid by the City as fee revenues from the Infrastructure Fee Component of the Fees that are collected within the Plan Area. After Completion of the Facilities, such payments shall be made by the City at least quarterly throughout the year as funds become available. Prior to such Completion, if the Fee Reimbursement hereunder is eligible for payment on a Calendar-Year Priority basis subject only to Completion of the Facilities, then fee revenues collected from the Infrastructure Fee Component of the Fee within the Plan Area that would otherwise be paid to the Constructing Owner hereunder shall be held by the City in reserve for payment of the Fee Reimbursement pending Completion of the Facilities up to the amount of the Fee Reimbursement then due hereunder.
As provided in the IFP, the Administration Fee Component of the Fees has priority with respect to distribution of any fees in the Village 1 Plan Area Fee Program Fund and must be satisfied before reimbursements are made from other components of the Plan Area Fee Program.
The obligation arising from this Agreement is not a debt of the City, nor a legal or equitable pledge, charge, lien, or encumbrance, upon any of its property, or upon any of its income, receipts, or revenues, and is payable only and solely from the Infrastructure Fee Component of the Fee deposited in the Plan Area Fee Program.
SECTION 8. “TRUE UP” OF FEE REIMBURSEMENT
Upon completion of the Facilities by the Constructing Owner and acceptance thereof by the City, the final determination of actual Eligible Hard Costs upon which the Fee Reimbursement amount is based shall be determined by the Administrator, in consultation with the City Engineer, based on documentation thereof provided by Constructing Owner to the Administrator’s and City Engineer’s reasonable satisfaction. For construction change orders to be given consideration for reimbursement, the Constructing Owner must:
• Present the change order request and estimated cost along with supporting information to the Administrator and City Engineer; and
• Fully document any work performed under a change order to verify all associated costs. 122
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Exhibit H
1536616.1 13583-026 Village 1 IFP Fee Reimbursement Agmt Form (draft 1-20-17) 21
Failure to comply with any of these procedures may result in the ineligibility of the requested change order for such Fee Reimbursement.
To secure final Fee Reimbursement, Constructing Owner shall provide the following items to the Administrator and City Engineer in order for each to determine the actual Eligible Hard Costs and Eligible Soft Costs incurred by Constructing Owner for the Facilities that qualify for reimbursement:
(1) Copies of the original Construction Contract and any change orders that have been agreed to and approved in writing by the Constructing Owner, contractor, and the City. The portion of each change order associated with the Facilities must be itemized separately; (2) Copies of all invoices, with unconditional lien releases, submitted by the contractor and suppliers;
(3) Copies of all checks issued by the Constructing Owner with related invoices indicated;
(4) A summary tabulation of all contractor and supplier invoices and Constructing Owner payments; and
(5) Prevailing Wage Certification, or documentation acceptable to the City Attorney of an exception to the applicability of prevailing wage.
If, when the final reconciliation of Total Eligible Costs for the Facilities is conducted by the Administrator, the actual Total Eligible Costs for the Facilities exceeds the amount of Fee Reimbursement initially provided hereunder, the Administrator shall review items (1) through (4) above and determine if the actual Total Eligible Costs will serve as the basis for determination of the amount of the Fee Reimbursement due or owed to the Constructing Owner should be increased above the amount described in Exhibit C of this Agreement. The Administrator, in consultation with the City Engineer, shall determine how much of the actual construction costs should be included in any increase to the Total Eligible Costs and Exhibit C shall be adjusted accordingly.
If the final reconciliation determines that Total Eligible Costs are less than the amount of Fee Reimbursement initially provided hereunder, the Administrator shall notify the Constructing Owner of such reduction of the Fee Reimbursement and Exhibit C shall be revised accordingly.
If the amount of Fee Reimbursements converted to and applied as Fee Credits exceeds the final amount of Total Eligible Costs that supported such Fee Credits, then the Constructing Owner shall repay the amount of the Fee Reimbursement that was converted to a nd applied as Fee Credits in excess of the confirmed Total Eligible Costs within sixty (60) calendar days of receipt of notice from the Administrator of the amount to be repaid. As an alternative to repaying such amount in cash, if the Constructing Owner holds Fee Reimbursements pursuant to another Fee Reimbursement Agreement that are convertible to Fee Credits within the Constructing Owner’s Property, the Constructing Owner may convert the Fee Reimbursements from such other Fee Reimbursement Agreement to Fee Credits and apply them against such repayment obligation.
Failure to make such repayment within the aforementioned 60- day timeframe shall constitute a default and a material breach of this Agreement.
123
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Exhibit H
1536616.1 13583-026 Village 1 IFP Fee Reimbursement Agmt Form (draft 1-20-17) 22
In no event shall Fee Reimbursement exceed the amoun ts actually paid by Constructing Owner for Total Eligible Costs. Any determination by the Administrator and City Engineer under this Section shall be subject to the appeal rights set forth in Section 32 of this Agreement.
SECTION 9. APPLICATION OF FEE REIM BURSEMENT CONVERTED TO FEE
CREDITS
The Fee Reimbursement may, at the Constructing Owner’s option, be converted to Fee Credits for application against the Infrastructure Fee Component of the Fee in connection with development within the Constructing Owner’s Property, subject to the following conditions:
A. If more than one Fee Reimbursement Agreement has been entered into with respect to development of a Constructing Owner’s Property, any conversion of Fee Reimbursements to Fee Credits shall occur in the order of the Calendar -Year Priority for such Fee Reimbursements, beginning with the earliest Calendar-Year Priority Fee Reimbursements; B. In any event, Fee Reimbursements converted to Fee Credits may not be assigned to, or applied against the Fee obligation associated with development of any Plan Area properties other than the Constructing Owner’s Property, as depicted on Exhibit B to this Agreement, and subject to the provisions of Section 2 related to application of Fee Credits to other contiguous properties not exceed five percent (5%) in area owned by the Constructing Owner.
C. Notwithstanding any provision to the contrary, Fee Reimbursements converted to Fee Credits may only be used to satisfy Plan Area obligations and not for any other purpose.
Subject to compliance with the foregoing conditions, Fee Reimbursements may be converted to Fee Credits at any time from and after the Effective Date of this Agreement. Any conversion of Fee Reimbursements to Fee Credits and the corresponding application of such converted Fee Credits against the Infrastructure Fee Component of the Fee shall be made in writing and delivered to the Administrator in the form attached hereto as Exhibit D . So long as the Constructing Owner is not in default of this Agreement at the time of its request, Fee Reimbursements may be converted to and applied as Fee Credits against the Infrastructure Fee Component of the Fee at any time from and after the Effective Date of this Agreement and such conversion is not dependent upon Completion of the Facilities.
The right to apply Fee Reimbursements as Fee Credits is limited hereunder to the Infrastructure Fee Component of the Fee and may not be applied against the Neighborhood Park Development Fee Component, the Neighborhood Park Land Acquisition Fee Component or the Administrative Fee Component of the Fee.
SECTION 10. DISCLOSURE REGARDING TIMING OF PAYMENT OF
INFRASTRUCTURE FEES
As described in the IFP, the Fee will be collected before acceptance of the first final small lot map on any property identified in the Constructing Owner’s DA. The Fee will be charged with each final small lot map, with 10 acres being the minimum quantity for each small lot map. The 10-acre minimum does not accumulate with or carryforward to future small lot maps. 124
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Exhibit H
1536616.1 13583-026 Village 1 IFP Fee Reimbursement Agmt Form (draft 1-20-17) 23
SECTION 11. TRANSFER OF FEE REIMBURSEMENTS
Fee Reimbursements are personal to Constructing Owner and do not run with the Project that is generating such Fee Reimbursements. Provided the Constructing Owner has no outstanding monetary obligation to the City within the Project Area, Constructing Owner may, at its sole option and discretion, assign the rights to any Fee Reimbursements, including the right to convert such Fee Reimbursements to be applied as Fee Credits against the Infrastructure Fee Component of the Fee, to any other person or entity, including any developer or builder acquiring property within any portion of the Constructing Owner’s Property, subject to the conditions and limitations herein regarding the application of such Fee Credits, including without limitation, the application thereof only for development within the Constructing Owner’s Property. If Constructing Owner has an outstanding monetary obligation to the City as noted above, then the City may either require the monetary obligation to be met before transfer of the Fee Credit or apply any Fee Reimbursement or converted Fee Credit then owned by Constructing Owner against the obligation owed by Constructing Owner. Any assignment of the rights to Fee Reimbursements shall be made in writing and delivered to the Administrator in the form attached hereto as Exhibit E. Assigned Fee Credits carry the same priority the assignor had in the credits.
SECTION 12. FAILURE TO COMPLETE CONSTRUCTION.
Failure to complete work within the scope of this Agreement may affect the Calendar-Year Priority Status for the Fee Reimbursement hereunder, may result in termination of the Fee Reimbursements and termination of the right to apply any converted Fee Credits against the Infrastructure Fee Component of the Plan Area (in which case, absent the availability of any other Fee Credits, the full amount of the Infrastructure Fee Component of the Plan Area would be due as and when required by development of the Constructing Owner’s Property), and may require repayment of any Fee Reimbursements paid or applied as Fee Credits, as deemed appropriate by the Administrator. In connection therewith, the Administrator may determine that the Constructing Owner shall not be entitled to further Fee Reimbursement or Fee Credits until completion of the Facilities as determined by approval of a resolution of the City Council accepting the improvements and authorizing the City Clerk to file a Notice of Completion with the Placer County Recorder. A change in the Calendar -Year Priority for any Fee Reimbursements will be evaluated from the previously determined Calendar-Year Priority to the date of completion, which may affect priority for Fee Reimbursement and priority for conversion to Fee Credits. Any determination by the Administrator and City Engineer to invoke the provisions of this Section shall be subject to the appeal rights set forth in Section 32 of this Agreement.
SECTION 13. INSPECTION
City and its authorized representatives shall, at all times have access to the construction site during construction of the Facilities and Constructing Owner shall furnish City with all reasonable information necessary for ascertaining full knowledge of the Facilities with respect to the progress, workmanship, and character of materials and equipment used and employed in the work.
Whenever the contractors retained by Constructing Owner vary the normal period during which work or any portion of it is carried out on each day, Constructing Owner shall give timely notice to the City Engineer so that if he or she wishes, be present to observe the work in progress. If Constructing Owner fails to give such timely notice, any work done in the absence of the City 125
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Exhibit H
1536616.1 13583-026 Village 1 IFP Fee Reimbursement Agmt Form (draft 1-20-17) 24
representative will be subject to rejection. Constructing Owner shall give timely notice to the City Engineer in advance of backfilling or otherwise covering any part of the work so that the City’s representative may observe the work before it is concealed.
Notwithstanding any provision to the contrary, all Facilities shall be subject to City inspection for compliance with City requirements prior to approval of a resolution of the City Council accepting the improvements and authorizing the City Clerk to file a Notice of Completion with the Placer County Recorder. Observation of the work or inspection by the City shall not relieve Constructing Owner or its sureties of full responsibility for defective materials or workmanship or any of its obligations to complete construction in accordance with the plans and specifi cations approved by the City Engineer.
SECTION 14. COMPLIANCE WITH PREVAILING WAGE LAWS
Unless otherwise authorized by City Charter, City ordinance, or applicable State statutory or common law, pursuant to the provisions of Articles 1 and 2 of Chapter 1, Part 7, Division II of the Labor Code of the State of California (Labor Code Sections 1720 et seq . (“Prevailing Wage Laws”)), all work shall be performed in compliance which the Prevailing Wage Laws and not less than the general prevailing rate of per diem wages, and not less than the general prevailing rate of per diem wages for holidays and overtime work, for each craft, classification or type of worker needed to execute the work contemplated under this Agreement shall be paid to all workers, laborers, and mechanics employed in the execution of said work by the Constructing Owner or the Constructing Owner’s contractor, or by any subcontractor doing or contracting to do any part of said work. The appropriate determination of the Director of the California Department of Industrial Relations shall be filed by the Constructing Owner with, and made available for inspection at the office of the City Clerk.
Constructing Owner shall require all contractors to register with the Department of Industrial Relations in accordance with Labor Code section 1725.5. Constructing Owner shall require its contractor to post, at each jobsite, a copy of such prevailing rate of per diem wages as determined by the Director of the California Department of Industrial Relations. No Fee Reimbursement or Fee Credit shall be permissible without full compliance with the Prevailing Wage Laws.
SECTION 15. INSURANCE
Constructing Owner shall require its contractor to carry and maintain for three (3) years after City Acceptance of the Facilities, such public liability, property damage and contractual liability, auto, Workers’ Compensation, Builders’ Risk Insurance and other insurance coverage as required by the City in accordance with the improvement plan specifications for the Facilities.
The contractor shall name the City as an additional insured. For any claims related to the Facilities, the contractor’s general liability and automobile insurance coverage shall be primary insurance in their coverage of the City and its officers, officials, employees, agents, or volunteers, and any insurance or self -insurance maintained by the City, its officers, officials, employees, agents or volunteers shall be excess of the contractor’s insurance and shall not contribute with it.
SECTION 16. ACCEPTANCE AND CONVEYANCE OF FACILITIES
126
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Exhibit H
1536616.1 13583-026 Village 1 IFP Fee Reimbursement Agmt Form (draft 1-20-17) 25
Once Constructing Owner has completed construction of the Facilities and the Facilities, to include all associated easements and offers of dedication, provided that all liens, claims and encumbrances in connection with the Facilities have been released and the required warranty bond has been provided to the City, final inspection, all engineering submittals and administrative components of the project, to the satisfaction of the City Engineer shall recommend that the City Council approve a resolution accepting the improvements and authorizing the City Clerk to file a Notice of Completion with the Placer County Recorder. No acceptance shall be valid without the Constructing Owner conveying and vesting full, complete and clea r title in said Facilities to the City at the time of acceptance.
SECTION 17. LIENS, CLAIMS, AND ENCUMBRANCES
Prior to the City’s acceptance of any Facilities, Constructing Owner shall clear any and all liens, claims and encumbrances from said Facility as a condition of acceptance by the City.
SECTION 18. DELIVERY OF AS-BUILT PLANS AND SPECIFICATIONS Prior to acceptance of the Facilities by City, Construction Owner shall deliver City copies of all as-built plans (if any), specifications, operating manuals, service manual, warranties and other documents relating to the design, construction and operation of the Facilities described in this Agreement.
SECTION 19. INDEMNIFICATION
The Constructing Owner, by execution of this Agreement, specifically agrees to protect and assume the defense of, indemnify and hold harmless City and its elected representatives, officers, employees, agents and consultants (the “Indemnitees”), from and against all liabilities, actions, lawsuits, damages, claims, losses, or expenses of every type and description, including attorneys’ and consultants’ fees and expenses, (collectively, “Liabilities”), to which they may be subjected or put, by reason of or resulting from the design, construction, or installation of the Facilities, except to the extent the Liabilities arise from the sole negligence, or willful misconduct of City and/or the Indemnitees. This indemnification shall extend to Liabilities occurring after this Agreement is terminated as well as while it is in force. Notwithstanding the foregoing, following the acceptance of the improvements by City, or if there is an applicable warranty, following the end of any applicable warranty period, the Constructing Owner shall not be obligated to indemnify the Indemnitees for Liabil ities to the extent that such Liabilities arise from Indemnitees’ active or passive negligence following acceptance of the Facilities.
SECTION 20. THIRD PARTY LIABILITY
City does not assume any liability, duty or obligation to Constructing Owner’s contractors, subcontractors, agents or any person or entity not a party to this Agreement by execution or performance of this Agreement, and no contractors, subcontractors, agents or any parties are third party beneficiaries of this Agreement.
SECTION 21. WARRANTY
Constructing Owner hereby warrants the Facilities as to materials, design and workmanship 127
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1536616.1 13583-026 Village 1 IFP Fee Reimbursement Agmt Form (draft 1-20-17) 26
and should any defect or failure of the Facilities, or any parts thereof, occur within a period of one (1) year after final acceptance by City, or such other longer time duration that may be agreed to by separate agreement, Constructing Owner shall promptly cause the needed repairs to be made without any expense or cost to the City. Final acceptance shall be deemed to have occurred under this Agreement when the Facilities have been accepted resolution of City Council accepting the Facilities and directing the City Clerk to file a Notice of Completion with the Placer County Recorder. City shall provide written notification to Constructing Owner of final acceptance by the City.
City is hereby authorized to make repairs if Constructing Owner fails to make, or undertake with due diligence, the aforesaid repairs within twenty (20) calendar days after it is given written notice of such defect or failure. In case of emergency, where in the opinion of the City Engineer delay may cause serious hazard to the public or delaying the repairs may cause the damage to substantially increase, the necessary repairs may be made by the City without prior notice to Constructing Owner. All costs of the repair, if not paid by the Constructing Owner within twenty calendar days of notice from the Administrator to the Constructing Owner, shall be paid out of any Fee Reimbursement then otherwise payable to the Constructing Owner from the Infrastructure Fee Component of the Village 1 Plan Area Fee Program Fund. In the event available Fee Reimbursement otherwise payable to the Constructing Owner shall be insufficient to pay for the repair, the deficiency shall be paid out of _______. In no event shall the City be responsible for the cost of the repair within the warranty period. In all cases of defect or failure within the warranty period where the City has taken action in accordance with this paragraph, Constructing Owner shall promptly reimburse City and, if applicable, the _______ shall fund the repair for any and all costs or expenses, direct or indirect, incurred by the City. The foregoing is in addition to, and shall not in any way limit or affect, the rights of the City to enforce the warranty obligations of Constructing Owner hereunder and to recover any and all costs thereof from the warranty bond posted thereby.
SECTION 22. BINDING ON SUCCESSORS AND ASSIGNS
Each and every provision of this Agreement shall be binding upon and shall inure to the benefit of the respective successors and assigns of the parties hereto, in the same manner as if such parties had been expressly named herein.
SECTION 23. ATTORNEY’S FEES
If any suit, action or proceeding in law or equity (except for the dispute resolution process set forth herein) is brought to enforce the provisions of this Agreement, the prevailing party shall be entitled to reasonable costs and attorneys’ fees.
SECTION 24. AUTHORITY TO ENTER INTO AGREEMENT
Constructing Owner and City certify that they have the authority and are legally empowered to enter into this Agreement on behalf of their entity and to bind their party to the performance of its obligations hereunder.
SECTION 25. NOTICES
128
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Exhibit H
1536616.1 13583-026 Village 1 IFP Fee Reimbursement Agmt Form (draft 1-20-17) 27
Any notices, requests, demands or other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given on the date of service if served personally (FedEx and similar services, each of which is hereinafter called an “Express Courier,” shall be considered to be personal service) or by telephone facsimile or other electronic transmission (provided that the sender of a telephone facsimile or other electronic transmission has received confirmation of successful transmission by the sending fax machine), and upon receipt, if mailed to the party to whom notice is to be given, by first-class mail, registered or certified, postage prepaid, return receipt requested, and properly addressed as follows:
(a) If to City:
City of Lincoln
Attn: Director of Support Services / Administrator 600 Sixth Street Lincoln, CA 95648
Telephone: (916) 434-2400
Facsimile: (916) _____________________
With a copy to:
City of Lincoln Attn: City Engineer 600 Sixth Street
Lincoln, CA 95648
Telephone: (916) 434-2400
Facsimile: (916) _______________
(b) If to Constructing Owner:
[fill in notice information for Constructing Owner]
Either party may change its mailing address at any time by giving written notice of such changes to the other party in the manner provided herein.
SECTION 26. NOTICE OF CONTRACTORS
Constructing Owner shall provide a copy of this Agreement to any contractors, subcontractors, or other parties performing work on the Facilities, prior to commencement of construction by said party.
SECTION 27. TERM
The term of this Agreement shall start on the day and year duly executed by all parties and shall remain in effect until all the terms and conditions contained in this Agreement have been satisfied.
SECTION 28. SEVERABILITY
If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining portions hereof shall not in any way be affected or impaired thereby.
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Exhibit H
1536616.1 13583-026 Village 1 IFP Fee Reimbursement Agmt Form (draft 1-20-17) 28
SECTION 29. CONFLICTS
This agreement is intended to implement and be consistent with the requirements of the IFP.
Therefore, in the event of any conflicts between the IFP and this Agreement, the requirements of the IFP shall prevail and control.
SECTION 30. EXHIBITS
The Exhibits attached hereto are hereby incorporated herein by this reference.
SECTION 31. ENTIRE AGREEMENT
This Agreement constitutes the entire understanding of the parties regarding the subject matter hereof. The Agreement may be amended only by writing executed by both parties.
SECTION 32. RIGHT OF APPEAL
Constructing Owner may appeal any final determination by the Administrator and/or City Engineer to the City Manager and thereafter to the City Council pursuant to the provisions of Lincoln Municipal Code. Prior to submitting the matter to the City Council, the City Manager may, in his/her discretion, elect to engage the services of a mediator to attempt to mediate the dispute in a non-binding fashion, not to exceed a total of thirty (30) calendar days. Any decision of the City Council shall be final with no right of further appeal or action thereafter.
SECTION 33. EFFECTIVE DATE
The City’s execution of this Agreement shall be contingent upon confirmation by the Administrator, in consultation with the City Engineer, that (i) a Construction Contract has be en properly bid and entered into for construction of the Facilities, (ii) performance and payment bonds have been posted in form and amount required by the City, and (iii) a Notice to Proceed has been given to the contractor for the Facilities. The date of such execution by the City, based in part on the City’s confirmation of the satisfaction of the foregoing conditions, shall be deemed to be the “Effective Date” of this Agreement. Upon execution of this Agreement by the City, the City shall insert the Effective Date in the Preamble to this Agreement and provide a copy of this fully executed and dated Agreement to Constructing Owner.
[SIGNATURE PAGE FOLLOWS]
130
Stardust Development Agreement
Exhibit H
1536616.1 13583-026 Village 1 IFP Fee Reimbursement Agmt Form (draft 1-20-17) 16
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above-written.
CITY:
CITY OF LINCOLN,
a municipal corporation
CONSTRUCTING OWNER:
(INSERT CONSTRUCTING
OWNER SIGNATURE BLOCK)
By:
Its: City Manager
ATTEST:
By:
Its: City Clerk
APPROVED AS TO CONTENT:
By:
Name:
Title:
Date:
By:
Its: City Engineer
APPROVED AS TO CONTENT:
By:
Its: Director of
Support Services
APPROVED AS TO FORM:
By:
Its: City Attorney
131
Stardust Development Agreement
Exhibit H
1536616.1 13583-026
17 EXHIBIT A
IDENTIFICATION OF FACILITIES AND MAP
(Including Preliminary Engineer’s Estimate of Facility Costs)
(to be attached)
132
Stardust Development Agreement
Exhibit H
1536616.1 13583-026
18 EXHIBIT B
MAP OF CONSTRUCTING OWNER’S PROPERTY
(Within Which Fee Reimbursements May Be Applied as Fee Credits)
(to be
attached)
133
Stardust Development Agreement
Exhibit H
1536616.1 13583-026
19 EXHIBIT C
IDENTIFICATION OF FEE REIMBURSEMENT
VILLAGE 1 PLAN AREA FEE PROGRAM
[Insert Name of Constructing Owner Here] [List Facility Here]
Date of Agreement: , 20
Village 1 Plan Area Program Fee Reimbursements: $___________________
134
Stardust Development Agreement
Exhibit H
1536616.1 13583-026
20 EXHIBIT D
FORM OF CERTIFICATE OF CONVERSION OF FEE REIMBURSEMENTS TO
AND APPLICATION OF INFRASTRUCTURE FEE CREDITS
The undersigned Constructing Owner, as the holder of certain Fee Reimbursements related to the Fee Reimbursement Agreement between Constructing Owner and the City of Lincoln, dated ___________ (the “Agreement”), and with a Calendar -Year Priority of 20 , hereby elects to convert the Fee Reimburs ements to Fee Credits and apply such converted Fee Reimbursements indicated below as a credit against the Infrastructure Fee Component of the Village 1 Plan Area Fee Program otherwise payable in connection with the recordation of a small- lot subdivision map for development of the property within the Village 1 Specific Plan Area described below:
Constructing Owner’s Legal Name:
Project Name:
Subdivision Name:
Final Map Name and Date:
Village (or Units) and Lot Numbers:
Attach copy of Final Map with lot numbers visible.
Amount of Fee Reimbursements Converted to Fee Credits: $
Fee Reimbursement Balance Under Agreement Before Conversion: $
Fee Reimbursement Balance Under Agreement After Conversion: $
ACKNOWLEDGED: Administrator:
CONSTRUCTING OWNER:
________________________________
___,
a
135
Stardust Development Agreement
Exhibit H
1536616.1 13583-026
21 By:
Name:
Title:
Date:
136
Stardust Development Agreement
Exhibit H
1536616.1 13583-026
21 EXHIBIT E
FORM OF CERTIFICATE OF ASSIGNMENT AND TRANSFER
OF INFRASTRUCTURE FEE REIMBURSEMENTS
The undersigned Constructing Owner, as the holder of certain Fee Reimbursements related to the Fee Reimbursement Agreement between Constructing Owner and the City of Lincoln, dated
(the “Agreement”), and with a Calendar -Year Priority of 20 , hereby assigns, transfers and conveys to the undersigned Assignee the amount of Fee Reimbursements as indicated below:
Constructing Owner’s Legal Name:
Assignee’s Legal Name:
Amount of Assigned Fee Reimbursements: $
Fee Reimbursement Balance Held by Constructing Owner
under Agreement Before Assignment: $
Fee Reimbursement Balance Held by Constructing Owner
under Agreement After Assignment: $
ACKNOWLEDGED: Administrator:
CONSTRUCTING OWNER: ASSIGNEE/HOME BUILDER:
a a
By:
Name:
Title:
Date:
By:
Name:
Title:
Date:
Constructing Owner Contact:
Name:
Address:
Assignee/Home Builder Contact:
137
Stardust Development Agreement
Exhibit H
1536616.1 13583-026
22 Name: Address:
Telephone:
Facsimile: E-Mail:
Telephone:
Facsimile: E-Mail:
138
Stardust Development Agreement
Exhibit I
1533538.2 2
Recording requested by:
When recorded, mail to:
Attn.:
Space above this line for
recorder’s use only
PLAN AREA FEE CREDIT TRANSFER AGREEMENT
THIS PLAN AREA FEE CREDIT TRANSFER AGREEMENT (herein, this “Plan Area Transfer Agreement’) is entered into as of____________________, 20 ____, by and between ___________________, a_______________(“Transferor”) and ___________, a__________________ (“Transferee”).
RECITALS
A. TRANSFEROR agrees to convey to TRANSFEREE certain Plan Area Fee Credits identified in Exhibit A, applicable to Plan Area projects included in the Lincoln Village 1 Infrastructure and Public Facilities Financing Plan (“Plan Area Credits”).
B. Exhibit A is attached hereto and incorporated by reference.
C. TRANSFEROR and TRANSFEREE are executing and recording this Plan Area Transfer Agreement pursuant to Sections 4.3.5 of their respective development agreements.
AGREEMENTS
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, TRANSFEROR and TRANSFEREE agree as follows:
1. TRANSFEROR hereby assigns to TRANSFEREE all of TRANSFEROR’s rights and obligations pertaining to Plan Area Credits as set forth in Exhibit A.
2. TRANSFEREE, its successors and assigns hereby expressly assume all such rights and obligations pertaining the Plan Area Credits as set forth in Exhibit A.
3. All of the covenants, terms and conditions set forth herein shall be binding upon and shall inure to the benefit of the parties hereto and to their respective heirs, successors and assigns.
139
Stardust Development Agreement
Exhibit I
1533538.2 3
4. This Transfer Agreement may be executed in one or more counterparts. All counterparts so executed shall constitute one agreement, binding on all parties, even though all parties, even though all parties are not signatory to the same counterpart. T he parties authorize each other to detach and combine, or cause to be detached and combined, original signature pages and consolidate them into a single identical original for recordation of this Agreement in the Official Records of Placer County, California.
IN WITNESS WHEREOF, the parties hereto have executed this Plan Area Transfer Agreement as of the date and year first-above written.
TRANSFEROR:
_____________________________,
a ___________________________
By:
Name:
Title:
TRANSFEREE:
____________________________,
a _____________________
By:
Name:
Title:
140
Stardust Development Agreement
Exhibit
1533538.2 EXHIBIT A
EXHIBIT A
PLAN AREA FEE CREDITS TRANSFERRED
PLAN AREA FEE
CREDITS
Infrastructure Fee
Neighborhood Park
Development Fee
Neighborhood Park
Land Acquisition
Fee
Administration Fee
$ .00
$ .00
$ .00
$ .00
VERIFICATION
The City of Lincoln hereby verifies that the Plan Area Credits listed above are currently owned by TRANSFEREE and available for transfer to TRANSFEROR.
By:
Name:
Title: Director of Support Services
141
SUBJECT:
Execute Maintenance Agreement with Caltrans for the Moore Road Class 1 Trail Project. (Roland Neufeld)
SUBMITTED BY:
Roland Neufeld
DEPARTMENT:
Engineering
DATE:
August 26, 2025
Item Number 7.E
STAFF RECOMMENDATION:
Adopt a Resolution Authorizing the City Manager to Execute a Maintenance Agreement with the California Department of Transportation for the Moore Road Class 1 Trail Project.
BACKGROUND/INTRODUCTION:
The Moore Road Class 1 Trail Project will construct a Class 1 trail under a State Route 65 bridge adjacent to Auburn Ravine. When the State Route 65 bypass was constructed, Moore Road was bisected creating dead ends on either side of the bypass. The project will re- establish the connection of Moore Road for cyclists and pedestrians. See Attachment A for an exhibit showing the trail alignment.
The project is primarily located within the California Department of Transportation (Caltrans) right of way for State Route 65. As such, permitting from Caltrans is required. As part of the permitting process, Caltrans requires that the City of Lincoln enter into a maintenance agreement with Caltrans for the on-going maintenance of the improvements that the City intends to install within Caltrans’ right of way, for the benefit of Lincoln residents.
Project design is nearing completion and staff anticipates applying for a Caltrans permit for construction by the end of the year. Caltrans requires that a fully executed maintenance agreement be submitted as part of the permit application.
FINDINGS/ANALYSIS:
Staff received a draft maintenance agreement from Caltrans that was reviewed by Public Works and Engineering staff as well as the City Attorney. Following a round of comments and revisions, a final agreement was determined to be acceptable by both Caltrans and the City of Lincoln (see Attachment B).
STAFF REPORT
142
ENVIRONMENTAL REVIEW:
The proposed project qualifies for a categorical/statutory exemption under section 14 California Code of Regulations
§§ 21080.25(b)(1) which states that projects defined as pedestrian and bicycle facilities that improve safety, access, or mobility, including new facilities, within the public right-of-way are exempt from further environmental review under the California Environmental Quality Act Guidelines.
FISCAL IMPACT:
The project is an approved Capital Improvement project for fiscal year 2023/25.
The project is funded as follows:
Fund 2400 – Transportation PFE $1,215,000 Total Project Funding $1,215,000
Project expenses are as follows:
Engineering Design Services (Kimley-Horn) ($298,785) Total Project Expenses
($298,785)
ATTACHMENTS:
Attachment A - Project Trail Alignment.pdf
Attachment B - Maintenance Agreement.pdf
Attachment C - Resolution.pdf
143
ATTACHMENT A
144
LINE A
SB SR65NB SR65
MOORE RD
MOORE ROAD
AUBURN RAVINEREGULATED FLOODWAY
145
LINE A
SB SR65NB SR65
MOORE ROAD
MOORE ROADREGULATEDFLOODWAYAUBURN RAVINE
LEGEND
146
ATTACHMENT A
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Moore Road Class 1 Trail Project
03-PLA-65, PM 14.47
1 MAINTENANCE AGREEMENT
WITH THE CITY OF LINCOLN
THIS AGREEMENT is made effective this ______ day of ____________, 20__, by and between the State of California, acting by and through the Department of Transportation, hereinafter referred to as “STATE” and the CITY of LINCOLN; hereinafter referred to as “CITY” and collectively referred to as “PARTIES.”
1. The PARTIES hereto mutually desire to identify the maintenance responsibilities of CITY for newly constructed improvements within STATE’ s right of way by Encroachment Permit Number 0324-NMC-1884.
2. This AGREEMENT addresses CITY’s responsibility for the Moore Road Class 1 Trail (including but not limited to striping pavement markings, bollards and signs, Storm Drain Culvert , graded ditches, and Rock Slope Protection ), (collectively the “ IMPROVEMENTS”) placed within State Highway right of way on State Route 65, as shown on Exhibit A, attached to and made a part of this AGREEMENT.
3. Maintenance responsibilities that include, but are not limited to, inspection, providing emergency repair, replacement, and maintenance, (collectively hereinafter “MAINTAIN/MAINTENANCE”) of IMPROVEMENTS as shown on said Exhibit “A.”
4. The degree or extent of maintenance work to be performed, and the standards, therefore, shall be in accordance with the provisions of Section 27 of the Streets and Highways Code and the State Maintenance Manual.
5. When a planned future improvement is constructed and/or a minor revision has been effected with STATE’s consent or initiation within the limits of the STATE’s right of way herein described which affects PARTIES ’ division of maintenance responsibility as described herein, PARTIES will agree upon and execute a new dated and revised Exhibit “A” which will be made a part hereof and will thereafter supersede the attached original Exhibit “A” to thereafter become a part of this AGREEMENT.
5.1. The new exhibit can be executed only upon written consent of the PARTIES hereto acting by and through their authorized representatives.
No formal amendment to this AGREEMENT will be required.
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2 6. CITY agrees, at CITY’s expense, to do the following:
6.1. CITY will MAINTAIN or have authorized licensed contractor with appropriate class of license in the State of California, MAINTAIN IMPROVEMENTS conforming to those plans and specifications (P&S) pre- approved by STATE. CITY will have in place a valid necessary encroachment permits prior to the start of any work within STATE’S right of way.
6.1.1. An Encroachment Permit rider may be required for any changes to the scope of work allowed by this AGREEMENT prior to the start of any work within STATE's right of way.
6.2. CITY shall ensure that IMPROVEMENT S areas designated on Exhibit “A” are provided with adequate scheduled routine MAINTENANCE necessary to MAINTAIN a neat and attractive appearance.
6.2.1. To expeditiously MAINTAIN, replace, repair or remove from service any components of IMPROVEMENTS system that has become
unsafe or unsightly.
6.3. To control weeds at a level acceptable to the STATE. Any weed control performed by chemical weed sprays (herbicides) shall comply with all laws, rules, and regulations established by the California Department of Food and Agriculture. All chemical spray o perations shall be reported quarterly (Form LA17) to the STATE to: District 3Maintenance at 703 B Street, Marysville, CA 95901.
6.4. CITY shall ensure IMPROVEMENTS within the AGREEMENT limits provide an acceptable walking and riding surface and will provide for the repair and removal of dirt, debris, graffiti, weeds, and any deleterious item or material on or about the IMPROVEMENTS in an expeditious manner.
6.5. COUNTY’s graffiti removal shall be limited to removal of text only in accordance with Streets and Highway Code Section 96. Any graffiti that in any way resembles a mural, artwork, paintings, or other similar elements may not be removed. LOCAL AGENCY shall disc uss such possible art with STATE’s District 3 Transportation Art Coordinator before conducting any graffiti removal or remediation.
6.6. To MAINTAIN all parking or use restrictions signs encompassed within the area of the IMPROVEMENTS.
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3 6.7. To remove IMPROVEMENTS and appurtenances and restore STATE owned areas to a safe and attractive condition acceptable to STATE in the event this AGREEMENT is terminated as set forth herein.
7. STATE m ay provide CITY with timely written notice of unsatisfactory conditions that require correction by the CITY. However, the non-receipt of notice does not excuse CITY from maintenance responsibilities assumed under this AGREEMENT.
8. STATE shall issue encroachment permits to CITY at no cost to it.
9. STATE shall remove Persons Experiencing Homelessness (PEH ), and any structures, personal property, debris, and/or other items related to the encampment from the Locations shown in Exhibit A, subject to STATE's Encampment Removal policy, MPD 1001 R 1 and applicable State and Federal law.
Nothing in this AGREEMENT grants or waives the right of California Highway Patrol (CHP) and other law enforcement agencies having jurisdiction over the Locations shown in Exhibit A.
10. LEGAL RELATIONS AND RESPONSIBILITIES:
10.1. Nothing within the provisions of this AGREEMENT is intended to create duties or obligations to or rights in third parties not party to this AGREEMENT or affect the legal liability of either PARTY to this AGREEMENT by imposing any standard of care respecting the design, construction and maintenance of these STATE highway improvements or CITY facilities different from the standard of care imposed by law.
10.2. If during the term of this AGREEMENT, CITY should cease to MAINTAIN the IMPROVEMENTS to the satisfaction of STATE as provided by this AGREEMENT, STATE may either undertake to perform that
MAINTENANCE on behalf of CITY at CITY’s expense or direct CITY to remove or itself remove IMPROVEMENTS at CITY’s sole expense and restore STATE’s right of way to its prior or a safe operable condition. CITY hereby agrees to pay said STATE expenses , within thirty (30) days of receipt of billing by STATE. However, prior to STATE performing any MAINTENANCE or removing IMPROVEMENTS, STATE will provide written notice to CITY to cure the default and CITY will have thirty (30) days within which to affect that cure.
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4 10.3. Neither CITY nor any officer or employee thereof is responsible for any injury, damage or liability occurring by reason of anything done or omitted to be done by STATE under or in connection with any work, authority or jurisdiction arising under this AGREEMENT. It is understood and agreed that STATE shall fully defend, indemnify and save harmless CITY and all of its officers and employees from all claims, suits or actions of every name, kind and description brought forth under, including, but not limited to, tortious, contractual, inverse condemnation and other theories or assertions of liability occurring by reason of anything done or omitted to be done by STATE under this AGREEMENT with the exception of those actions of STATE necessary to cure a noticed default on the part of CITY.
10.4. Neither STATE nor any officer or employee thereof is responsible for any injury, damage or liability occurring by reason of anything done or omitted to be done by CITY under or in connection with any work, authority or jurisdiction arising under this AGREEMENT. It is understood and agreed that CITY shall fully defend, indemnify and save harmless STATE and all of its officers and employees from all claims, suits or actions of every name, kind and description brought forth under, including, but not limited t o, tortious, contractual, inverse condemnation or other theories or assertions of liability occurring by reason of anything done or omitted to be done by CITY under this AGREEMENT.
10.5. PREVAILING WAGES:
10.5.1. Labor Code Compliance - If the work performed under this AGREEMENT is done under contract and falls within the Labor Code section 1720(a)(1) definition of a "public works" in that it is construction, alteration, demolition, installation, or repair; or maintenance work under Labor Code section 1771. CITY must conform to the provisions of Labor Code sections 1720 through 1815, and all applicable provisions of California Code of Regulations found in Title 8, Chapter 8, Subchapter 3, Articles 1 -7.
CITY agrees to include prevailing wage requirements in its contracts for public works. Work performed by CITY'S own forces is exempt from the Labor Code's Prevailing Wage requirements.
10.5.2. Requirements in Subcontracts - CITY shall require its contractors to include prevailing wage requirements in all subcontracts when the work to be performed by the subcontractor under this AGREEMENT is a "public works" as defined in Labor Code Section 1720(a)(1) and Labor Code Section 1771. Subcontracts shall 151
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5 include all prevailing wage requirements set forth in CITY's contracts.
11. INSURANCE
11.1. SELF-INSURED - CITY is self-insured. CITY agrees to deliver evidence of self-insured coverage providing general liability insurance, coverage of bodily injury liability and property damage liability, naming STATE, its officers, agents and employees as the additional insured in an amount of $1 mil lion per occurrence, $2 million in aggregate and $5 million in excess. Coverage shall be evidenced by a certification of self-insurance letter (“Letter of Self -Insurance”), satisfactory to STATE, certifying that CITY meets the coverage requirements of this section.
This Letter of Self -Insurance shall also identify the IMPROVEMENTS location as depicted in EXHIBIT A. CITY shall deliver to STATE the Letter of Self-Insurance with a signed copy of this AGREEMENT. A copy of the executed Letter of Self -Insurance shall be attached hereto and incorporate as Exhibit B.
11.2. SELF-INSURED using Contractor - If the work performed under this AGREEMENT is done by CITY‘s contractor(s), CITY shall require its contractor(s) to maintain in force, during the term of this AGREEMENT, a policy of general liability insurance, including coverage of bodily injury liability and property damage liability, naming STATE, its officers, agents and employees as the additional insured in an amount of $1 million per occurrence, $2 million in aggregate and $5 million in excess. Coverage shall be evidenced by a certificate of insurance in a form satisfactory to the STATE that shall be delivered to the STATE with a signed copy of this AGREEMENT.
12. TERMINATION - This AGREEMENT may be terminated by timely mutual written consent by PARTIES, and CITY’s failure to comply with the provisions of this AGREEMENT may be grounds for a Notice of Termination by STATE.
13. TERM OF AGREEMENT -This AGREEMENT shall become effective on the date first shown on its face sheet and shall remain in full force and effect until amended or terminated at any time upon mutual consent of the PARTIES or until terminated by STATE for cause.
14. ELECTRONIC SIGNATURES – Electronic signatures of the PARTIES, whether digital or encrypted, are intended to authenticate this written AGREEMENT, 152
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6 and shall have the same force and effect as manual signatures for this AGREEMENT.
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7 PARTIES are empowered by Streets and Highways Code Section 114 & 130 to enter into this AGREEMENT and have delegated to the undersigned the authority to execute this AGREEMENT on behalf of the respective agencies and covenants to have followed all the necessary legal requirements to validly execute this AGREEMENT.
IN WITNESS WHEREOF, the PARTIES hereto have set their hands and seals the day and year first above written.
THE CITY OF LINCOLN STATE OF CALIFORNIA
DEPARTMENT OF TRANSPORTATION
By: __________________________
Mayor
Initiated and Approved
By: ___________________________
CITY Manager
By: ___________________________
Deputy District Director
Maintenance District 3
ATTEST:
By: __________________________
CITY Clerk
By: __________________________
CITY Attorney
154
ATTACHMENT C
155
RESOLUTION 2025 -
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LINCOLN
AUTHORIZING THE CITY MANAGER TO EXECUTE A MAINTENANCE AGREEMENT
BETWEEN THE CITY OF LINCOLN AND THE STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION (CALTRANS) FOR THE MOORE ROAD CLASS 1 TRAIL
PROJECT
WHEREAS, the Fiscal Year 2023/25 Budget includes $1,215,000 for CIP 613 – Moore Road Class 1 Trail Project; and
WHEREAS, the project is funded by Fund 2400: Transportation PFE funds; and
WHEREAS, the proposed project will re-connect the two disconnected ends of Moore Road underneath State Route 65 with a Class 1 trail for bicyclists and pedestrians; and
WHEREAS, the proposed Class 1 trail will be predominantly within Caltrans right of way; and
WHEREAS, Caltrans requires a maintenance agreement between the City of Lincoln and Caltrans for the long -term maintenance of improvements that will be installed within Caltrans right of way as part of the project; and
WHEREAS, Caltrans submitted a draft maintenance agreement that was reviewed by Engineering and Public Works staff as well as the City A ttorney, and after a round of comments and revisions, was found to be acceptable by both the City of Lincoln and Caltrans.
NOW, THEREFORE, BE IT RESOLVED:
That the City Council of the City of Lincoln does hereby authorize the City Manager to execute a Maintenance Agreement between the State of California Department of Transportation and the City of Lincoln for the Moore Road Class 1 Trail Project.
PASSED AND ADOPTED this 26
th day of August, 2025 by the following vote:
AYES: Coucilmembers:
NOES: Coucilmembers:
ABSENT: Coucilmembers:
ABSTAIN: Coucilmembers:
156
Holly Andreatta, Mayor
ATTEST:
Hope Ithurburn, City Clerk
157
SUBJECT:
Execute a Task Order with Kimley-Horn for Engineering
Services related to the Traffic Signal Analysis &
Implementation Project (CIP 692). (Roland Neufeld)
SUBMITTED BY:
Roland Neufeld
DEPARTMENT:
Engineering
DATE:
August 26, 2025
Item Number 7.F
STAFF RECOMMENDATION:
Adopt a Resolution Authorizing the City Manager to Execute a Task Order with Kimley-Horn and Associates, Inc. in the Amount of $197,000 for Professional Engineering Services for the Traffic Signal Analysis & Implementation Project and Authorizing the City Engineer to Approve Task Order Amendments not to exceed $25,000.
BACKGROUND/INTRODUCTION:
The Fiscal Year 2025/26 budget includes $800,000 for engineering services related to the Traffic Signal Analysis & Implementation Project, CIP 692.
As new development occurs within the City, new infrastructure is required to meet increased demand. New transportation facilities are needed as new residential and commercial development generates additional trips on the City’s roads and increases the impact on existing facilities.
The Public Facilities Element has identified the following intersections as City funded projects that will be upgraded to signalized intersections in order to maintain an acceptable level of service: East Avenue/7
th
Street, East Avenue/12
th
Street, East Avenue/10
th
Street, 12
th
Street/McCourtney Road, Ferrari Ranch Road/Caledon Circle (west), Ferrari Ranch Road/Sorrento Parkway, Nicolaus Road/Lakeside Drive, and McBean Park Drive/D Street.
The Traffic Signal Analysis & Implementation Project will provide the necessary traffic analysis to determine if traffic signals are, or will soon be, warranted at the aforementioned intersections. The traffic analysis will also compare the pros and cons of installing traffic signal control versus roundabout control at the eight listed intersections, as outlined in the project description. The findings of the traffic analysis will inform a prioritization list for design and
STAFF REPORT
158
construction. The final design for the highest priority location(s) will be accomplished under a separate contract in the future.
FINDINGS/ANALYSIS:
Staff requested a scope and fee from Kimley-Horn & Associates, Inc. for the necessary engineering services, through the City’s on-call contract with Kimley-Horn as the City’s traffic engineering consultant.
Kimley-Horn provided a scope and fee for the work on July 28, 2025, which was subsequently reviewed by staff. Kimley-Horn showed that they have a good understanding of the work, understand the needs of the City of Lincoln as they relate to the project and have shown through their experience with similar traffic analysis projects for the City of Lincoln that they are capable of performing the work to the satisfaction of the City. Additionally, Kimley-Horn have proposed to capture existing traffic operations through drone video footage in order to assess near-miss collisions, heavy braking incidences, traveling speeds, stop-control violations as well as turning movements, all of which will add benefit to the intersection analysis.
A Task-Order for the required engineering services to be provided by Kimley-Horn in the amount of $197,000, which was determined to be acceptable given the nature of the work required, can be found in Attachment A. Additionally, staff have concluded that including a contingency for contract amendments would be beneficial in the event that additional services are required, such as procuring title reports or conducting limited amounts of property line boundary surveying.
ENVIRONMENTAL REVIEW:
The Task Order with Kimley-Horn only includes scope to analyze and rank potential future projects and therefore is not subject to environmental regulations. A future Task Order for project specific engineering design will include scope to comply with any required environmental elements needed for the project.
FISCAL IMPACT:
The project is an approved Capital Improvement Project for the biennium fiscal year 2025/26, funded from the Transportation Public Facilities Element (PFE) Fund.
The project is funded as follows:
Fund 2400 – Transportation PFE Fund $800,000 Total Project Funding $800,000
159
Project expenses are as follows:
Engineering Services (Kimley-Horn) ( $
197,000)
Total Project Expenses ( $
197,000)
ATTACHMENTS:
Attachment A - Task Order.pdf
Attachment B - Resolution.pdf
160
ATTACHMENT A
161
162
kimley-horn.com 555 Capitol Mall, Suite 300, Sacramento, California 95814 916 858 5800
July 28, 2025
Roland Neufeld
Senior Engineer
City of Lincoln
600 Sixth Street
Lincoln, California 95648
Re: Task Order No. 117 – Intersection Evaluation and Prioritization Scope of Services and Fee Proposal
On-Call Traffic Engineering Services
Dear Roland:
Kimley-Horn and Associates, Inc. (Kimley-Horn) is pleased to submit this task order proposal to the City of Lincoln (City) to complete an intersection evaluation and prioritization study for eight (8) locations previously identified by the City. Our Project Understanding, Scope of Services, Schedule, and Fee Proposal are as follows.
Project Understanding
Kimley-Horn understands that the City desires to complete an initial intersection evaluation and prioritization study per Project 692 – Traffic Signal Analysis & Implementation as specified in the City’s Fiscal Years 2025-27 Budget. As defined in the budget item’s project description, eight (8) intersections have been identified for which traffic analyses are desired for both traffic signal and roundabout control. The findings of the traffic analyses are also desired to inform a prioritization list for design and construction. The final design for the highest priority location(s) will be accomplished under a separate contract to be administered by the City at a later time.
Scope of Services
Task 1 – Project Administration, Data Collection, and Meetings
Task 1.1: Project Administration
This task includes general project administration, including management of project staff, quality control, and project accounting. This Scope of Services is anticipated to be completed over a five (5) month period.
Task 1.2: Data Collection
Kimley-Horn shall be entitled to rely on the completeness and accuracy of all information provided by the City. The City shall provide all information requested by Kimley-Horn during the project, including but not limited to the following:
Relevant right-of-way and utility data in electronic (GIS and/or CAD) format Relevant studies and associated data, including the most recent 3 years’ crash data As-built/record drawings of project intersections
Up to eight (8) weekday, peak-period intersection turning movement counts will be obtained. The peak-period intersection counts will be conducted on a typical weekday (Tuesday-Thursday) between the hours of 7-9 am and 2-6 pm (six hours total per intersection) when area schools are in session.
163
Roland Neufeld, July 28, 2025
Intersection Evaluation and Prioritization, Page 2
The following eight (8) intersections (existing traffic control) represent the study intersections included in this Scope of Services:
1. East Avenue @ 7th Street (AWSC)
2. East Avenue @ 10th Street (SSSC)
3. East Avenue @ 12th Street (AWSC)
4. 12th Street @ McCourtney Road (AWSC)
5. Ferrari Ranch Road @ Caledon Circle West (AWSC)
6. Ferrari Ranch Road @ Sorrento Parkway (AWSC)
7. Nicolaus Road at Lakeside Drive (AWSC)
8. McBean Park Drive at D Street (SSSC)
Kimley-Horn will complete one (1) field visit to observe the eight (8) project intersections’ readily apparent existing conditions and surface utility information, adjacent land uses, speed limits, and other readily apparent features for the study intersections that are deemed by Kimley-Horn to be relevant to the Scope of Services.
Task 1.3: Drone Analytics
Kimley-Horn will collect a total of 8-hours of drone video footage at up to eight (8) of the project intersections. Kimley-Horn will use a third-party data processing vendor to extract traffic operations and safety data. The raw video footage and the following data will be collected:
Near-Miss Collisions
Heavy Braking Incidences
85th Percentile Speeds
Stop-Control Violations
Traffic Volumes and Turning Movements
Findings from the analysis of the drone video analytics will be summarized in a brief technical memorandum and can be included in the scoring matrix under Task 2.
Task 1.4: Meetings
Kimley-Horn will participate in up to three (3) in-person project meetings. For the purposes of this Scope of Services, all project meetings are assumed to be conducted in-person, at the City’s offices, and include up to three (3) Kimley-Horn staff.
Task 2 – Traffic Control Screening Evaluation
Kimley-Horn will complete an objective evaluation of the application of traffic signal and roundabout intersection control at the eight (8) study intersections. The primary purpose of this evaluation is to provide an equal-level analysis of both traffic control options at each intersection to enable the City to make investment and prioritization decisions based on a uniform evaluation. This evaluation is intended to inform the configurations required to achieve operational standards, to comply with site- specific constraints, and to provide the locations’ desired design life. The findings of this objective evaluation will allow for a comparative summary of the intersections’ control options, as well as the development of intersection improvement concepts and a summary technical memorandum.
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Task 2.1: Initial Intersection Screening
Task 2.1.1 – Traffic Signal Warrant (Peak-Hour) and Traffic Operations Kimley-Horn will complete a planning level assessment of the need for traffic signalization based on the peak-hour warrant methodologies noted in the current, published version of the California Manual on Uniform Traffic Control Devices (CMUTCD). The peak-hour traffic signal warrant analysis will be performed for all eight (8) study intersections for the analysis scenarios identified above.
The purpose of this task is to determine the traffic signal and roundabout configurations required to achieve Level of Service (LOS) C or better at each of the eight (8) study intersections. Accordingly, Kimley-Horn will use the procedures of the current, published version of the Highway Capacity Manual (HCM) to perform a peak-hour operations analysis for both traffic signal and roundabout traffic control at each intersection. Roundabout traffic control evaluations will be performed using the Sidra® 9.1 software based on the HCM 7 capacity model. Operations will be evaluated for weekday, AM and PM peak-hour conditions for Existing (2025) and a single forecast volume scenario.
Task 2.1.2 – Conceptual Layouts
The primary purpose of this task is to establish an approximate footprint for traffic signal and roundabout control at each of the study intersections including the number of approach, departure, turn, and circulatory lanes. Conceptual layouts will be prepared for traffic signal and roundabout control for the design year traffic conditions. Layouts will be developed in CADD using aerial images and readily available topographic mapping. Concept layouts will depict intersection features and geometric design elements based on the traffic operations analysis findings per Task 2.1.1.
Task 2.1.3 – Planning Level Cost Estimates
Based on the conceptual layouts prepared as part of Task 2.1.2, Kimley-Horn will prepare planning level opinions of probable construction costs (OPCCs) for traffic signal and roundabout control at each of the study intersections. These estimates will be uniformly prepared to allow for an equal comparison across all study locations. Furthermore, these estimates are anticipated to include both hard and soft cost, and appropriate contingencies, to allow for a realistic evaluation and comparison of the locations’ potential conversion to traffic signal or roundabout traffic control.
Task 2.2: Intersection Scoring Matrix
Task 2.2.1 – Benefit/Cost Metric
Based on the findings of Task 2.1, Kimley-Horn will develop a metric that is anticipated to account for the study locations’ respective operations requirements and resultant construction costs and produce a simple “benefit/cost” metric to allow for inclusion in the equal-level comparative evaluation of the study intersections. While not anticipated to be a thorough Benefit/Cost Analysis, we do anticipate developing a quantitative methodology.
Task 2.2.2 – Priority Screening Criteria
Beyond the Benefit/Cost Metric developed per Task 2.2.1, Kimley-Horn will identify additional screening criteria for inclusion in the equal-level evaluation of the study intersections. These additional criteria are anticipated to capture some of the design features noted in Task 2.1.2.
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Task 2.2.3 – Scoring Matrix
Using the Benefit/Cost metric and additional screening criteria developed in Tasks 2.2.1 and 2.2.2, respectively, Kimley-Horn will prepare a scoring matrix for use in the project documentation and discussion with/presentation to the City. This matrix is anticipated to be a simple graphical representation of the various design considerations and findings.
Task 2.3: Screening Evaluation Memorandum
Task 2.3.1 – Concept Exhibits
Kimley-Horn will modify and finalize the conceptual layouts (Task 2.1.2) for inclusion the evaluation memorandum. These refinements are not anticipated to change the intersections’ geometric layouts, rather minor concept refinements may be requested by the City based on review and discussion.
Task 2.3.2 – Finalize Scoring Matrix
Kimley-Horn will modify and finalize the scoring matrix for inclusion in the evaluation memorandum.
These refinements are not anticipated to be substantive or change the overall scoring approach, rather minor refinements may be requested by the City based on review and discussion.
Task 2.3.3 – Preliminary Priority List
Based on the analyses, evaluations, and preliminary engineering completed in the above tasks, Kimley-Horn will develop an initial prioritization list for the study intersections. While anticipated to be somewhat subjective, we anticipate that the quantitative elements of the evaluations, including the preparation of the scoring matrix, will allow for objective consideration of the recommended order in which the City should consider investing in the application of modified traffic control (signal or roundabout) at the study intersections.
Task 2.3.4 – Screening Evaluation Memorandum
Kimley-Horn will prepare a summary memorandum in which we will document the various elements completed as part of this project. The summary memorandum will include the layout concepts and scoring matrix, and will specifically be intended for presentation to and discussion with the City. We will prepare a draft version of this memorandum. We will respond to a single set of consolidated, non-conflicting comments on the draft memorandum in the form of a final memorandum.
Schedule
Kimley-Horn will provide our services as noted in the Scope of Services as expeditiously as practicable to meet the mutually agreed upon schedule.
Fee and Billing
Kimley-Horn will provide the above Scope of Services on a labor fee plus expense basis not to exceed $197,000. Labor fee will be billed according to our then-current rates. Direct reimbursable expenses such as express delivery services, fees, and other direct expenses will be billed at 1.10 times cost. An allocation charge of 5.0 percent will be added to the labor fee to cover certain other expenses as to these tasks such as telecommunications, in-house reproduction, postage, supplies, project related computer time, and local mileage. Administrative time related to the project may be billed hourly. All permitting, application, and similar project fees will be paid directly by the City.
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If you concur with all of the foregoing and wish to direct us to proceed with the services, please provide written Notice to Proceed. Fees and times stated in this Agreement are valid for thirty (30) days after the date of this letter.
We appreciate the opportunity to provide these services to you. Please contact me at (916) 859-3617 or [email protected] if you have any questions or require additional information.
Very truly yours,
KIMLEY-HORN AND ASSOCIATES, INC.
Matthew D. Weir, PE, TE, PTOE, RSP
1 Senior Vice President
PE No. C70216 & TR2424
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ATTACHMENT B
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RESOLUTION 2025 -
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LINCOLN AUTHORIZING
THE CITY MANAGER TO EXECUTE A TASK ORDER WITH KIMLEY-HORN & ASSOCIATES, INC. FOR ENGINEERING SERVICES FOR THE TRAFFIC SIGNAL ANALYSIS & IMPLEMENTATION PROJECT (CIP 692) IN THE AMOUNT OF $197,000
AND AUTHORIZING THE CITY ENGINEER TO APPROVE TASK ORDER AMENDMENTS NOT TO EXCEED $25,000
WHEREAS, the Fiscal Year 2025/26 Budget includes $ 800,000 for CIP 6 92:
Traffic Signal Analysis & Implementation Project; and
WHEREAS, the project is funded by Fund 240 0: Transportation PFE funds; and
WHEREAS, eight intersections as described in the City of Lincoln Public Facilities Element (PFE) require conversion to traffic signal control and are to be funded by the City: East Avenue/7th Street, East Avenue/12th Street, East Avenue/10th Street, 12 th Street/McCourtney Road, Ferrari Ranch Road/Caledon Circle (west), Ferrari Ranch Road/Sorrento Parkway, Nicolaus Road/Lakeside Drive, and McBean Park Drive/D Street; and
WHEREAS, the Traffic Signal Analysis & Implementation Project will provide the necessary traffic analysis to determine if traffic signals are, or will soon be, warranted at the eight intersections; and
WHEREAS, the project will also compare the benefits of a traffic signal against the benefits of a roundabout at the eight listed intersections; and
WHEREAS, t he findings of the analysi s will inform a prioritization list for design and construction, and
WHEREAS, the final engineering design of the highest priority location(s) will be accomplished under a separate contract at a later time; and
WHEREAS, Kimley-Horn and Associates, Inc. provided a proposal for the required analysis under their traffic engineering on -call contract with the City of Lincoln; and
WHEREAS, Engineering Department staff evaluated the proposal and determined that Kimley -Horn & Associates, Inc. are qualified to perform the engineering services for the project; and
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WHEREAS, Engineering Department staff determined that a contingency for Task Order amendments would be beneficial should additional services be required, particularly as they relate to property line/right of way boundaries that may be needed.
NOW, THEREFORE, BE IT RESOLVED:
That the City Council of the City of Lincoln does hereby authorize the City Manager to execute a Task Order with Kimley-Horn & Associates, Inc. for engineering services for the Traffic Signal Analysis & Implementation Project in the amount of $197,000 and authorizing the City Engineer to approve Task Order amendments not to exceed $25,000.
PASSED AND ADOPTED this 26
th day of August, 2025 by the following vote:
AYES: Coucilmembers:
NOES: Coucilmembers:
ABSENT: Coucilmembers:
ABSTAIN: Coucilmembers:
Holly Andreatta, Mayor
ATTEST:
Hope Ithurburn, City Clerk
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SUBJECT:
Adopt a Resolution Designating Mayor Holly Andreatta as the City of Lincoln's Voting Delegate and Mayor Pro Tem Ben Brown as the Alternate at the League of California Cities (Cal Cities) Annual Conference. (Hope Ithurburn)
SUBMITTED BY:
City Clerk
DEPARTMENT:
City Manager's Office
DATE:
August 26, 2025
Item Number 7.G
STAFF RECOMMENDATION:
Stafff recommends City Council adopt a resolution designating the City of Lincoln's voting delegate and alternate to the League of California Cities (Cal Cities) Annual Conference and Expo, October 8 - 10, 2025.
BACKGROUND/INTRODUCTION:
Every year, the League of California Cities convenes a member-driven General Assembly at the Cal Cities Annual Conference and Expo. The General Assembly is an important opportunity where city officials can directly participate in the development of Cal Cities policy.
Taking place on Oct. 10, the General Assembly is comprised of voting delegates appointed by each member city; every city has one voting delegate. Our City's appointed voting delegate plays an important role during the General Assembly by representing our city and votes on resolutions. To cast a vote during the General Assembly, our city must designate a voting delegate and up to two alternate voting delegates, one of whom may vote if the designated voting delegate is unable to serve in that capacity. Voting delegates may either be an elected or appointed official.
Consistent with Cal Cities bylaws, a city’s voting delegate and up to two alternates must be designated by the city council. The voting delegate and alternates must be registered to attend the conference.
FISCAL IMPACT:
The City will bear expenses for attendance to the conference and the FY 2025/26 budget includes estimated costs to attend the conference.
Budgeted
City Council, Training/Travel
STAFF REPORT
171
Fund 10001300-5040
LLOC Annual Conference $5,700 (League of California Cities/Chamber breakfast)
ATTACHMENTS:
RESOLUTION - Cal Cities Conference - Voting Delegate and Alternate, 2025.docx 2025-voting-delegate-information-packet - CalCities.pdf 172
Resolution No. 2025-