Newman City Code
Chapter 11.5A Water Conservation and Education Page 2/11 Article I. Purpose
11.5A.010 Purpose.
The purpose and intent of the Council in enacting this Chapter is to protect the health, safety, welfare and interest of the public, and of patrons of establishments regulated by this Code by requiring that the patrons, establishments and persons conserve and not waste water by requiring that such establishments and persons conform to the water conservation procedures set forth in this chapter.
11.5A.020 Findings.
A. As a result of the drought and the understanding that water is a precious resource, the City Council finds that any ordinance relating to the conservation of water is an urgency matter for the health, safety and general welfare of the public;
B. The Constitution of the State of California and California Case Law provide that water shall not be wasted; C. To prevent the waste of water it is the intent of the City Council of the City of Newman to adopt reasonable rules regulating the use of water for outdoor landscape watering and other ancillary uses; D. The City Council is mindful of the importance of conserving water.
Article II. Education
11.5A.030 Education.
A. The City Council, as part of supplementation of this Chapter, will provide information to the public through the City Manager and City departments regarding the proper use to minimize the volume of water needed for a given function.
B. The Council, in an effort to carry out its findings and legislative purpose, sponsors this educational program with the intent that through proper education and implementation of water conservation procedures persons and establishments may continue to function with a significant savings in the volume of water.
Article III. Water Conservation Schedule and Prohibitions
11.5A.040 Outdoor Landscape Watering.
All users of water within the City limits of the City ofNewman are subject to the following regulation:
A. From March 1st to October 31 •t, all outside watering, including lawns and landscaping, shall be prohibited between the hours of 1 :00 p.m. and 6:00 p.m. It shall be unlawful for any person, firm or corporation to conduct outside watering during said times, unless approval, for good cause, has been granted by the Public Works Director.
11.5A.050 Prohibitions.
A. Newly planted lawns may be allowed daily watering only until the second mowing has been completed upon notification of the Public Works Department to planting.
Newman City Code
Chapter 11.5A Water Conservation and Education Page 3/11 B. The washing down or hosing ofrecreational vehicles, sidewalks, gutters, outside structures, or other exterior surfaces without prior written consent of the City Manager or his designee is prohibited and a violation of this chapter. Sweeping or brushing is required unless prior approval for water use is obtained.
C. The filling of wading pools is permitted, but "slip-n-slides" and other recreational activities requiring a constant flow of water are prohibited.
D. The washing of vehicles at a residence is allowed only ifa quick-acting automatic positive shut-off valve is used and in proper operating condition including the discharge of treated wash waters, and is limited to one (1) such washing per week per vehicle during designated watering days and times. This section is subject to the provisions of Newman Municipal Code Chapter 11.12 Storm Water management and Discharge Control.
Article IV. Emergency Water Shortage Plan
ll.SA.060 Title.
There is hereby established the "City ofNewman Emergency Water Shortage Plan." ll.SA.070 Declaration of Policy: Purpose.
A. Declaration of policy. The City Council hereby declares that the general welfare requires that the water resources available to the City be put to the maximum beneficial use to the extent to which the City is capable, and that the waste of, unreasonable use of, or unreasonable method of use of water be prevented.
The conservation of such water is to insure the reasonable and beneficial use thereof in the interests of the people of the City of Newman and for the public welfare.
B. Purpose. The City Council finds and declares that consolidating the various provisions of Ordinance associated with water conservation into one readily accessible document shall provide a more professional and usable work product as well as promote a better public understanding of the various procedures and provisions of the Newman Emergency Water Shortage Plan. Additionally, adding provisions prohibiting water wasting and defining the acts which so constitute water wasting advances the purpose and policy of the Newman Emergency Water Shortage Plan.
ll.SA.080 City Manager: Authorized Action.
The City Manager, or his or her designee, is hereby authorized and directed to implement the provisions of this chapter upon a determination that same is necessary to protect the public welfare and safety.
11.SA.090 Application.
The provisions of this chapter shall apply to all persons, customers and property served by the City of Newman.
Newman City Code
Chapter 11.5A Water Conservation and Education Page 4/11
11.SA.100 Water Conservation Stages.
A. ST AGE 1 - MANDATORY WATER CONSERVATION.
Stage 1 calls for a low level of informational outreach and enforcement of the permanent water use ordinances. Customers of the City ofNewman are hereby directed to limit the amount of water used on a year round basis. Due to the characteristics of the current City of Newman water system, additional water conservation is needed between March 1st and October 31 st each year as established by Section l l .05A.040.
B. ST AGE 2 - MANDATORY WATER CONSERVATION COMPLIANCE: WARNING.
Upon implementation of this chapter by the City Manager pursuant to Section l l .5A.080 of this Code, and publication of notice that Stage 2 Mandatory Conservation Compliance Measures are in effect, the following mandatory conservation compliance measures shall apply:
( 1) Outdoor landscape watering. Outdoor landscape watering shall be limited to three times per week on an odd-even basis in accordance with Section l l.5A.100 B(2). If the address ends in an even number, the water days shall be Tuesday, Thursday and Saturday. If the address ends in an odd number, the watering days will be Wednesday, Friday and Sunday. (2) Outdoor watering is prohibited between the hours of 1 p.m. and 6 p.m. (3) Large commercial landscapes and City parks shall have individual watering schedules approved by the Public Works Department.
(4) Residential vehicle washing. Residents shall be allowed to wash their vehicles as established by Section l l .05A.050 D.
C. ST AGE 3 - MANDATORY WATER CONSERVATION COMPLIANCE: WARNING.
Upon implementation of this Chapter by the City Manager pursuant to Section l l .5A.080 of this Code, and publication of notice that Stage 3 Mandatory Conservation Compliance Measures are in effect, the following Mandatory Water Conservation Compliance Measures shall apply:
(1) Outdoor Landscaping Watering. Outdoor landscape watering shall be limited to two times per week in accordance with Section l l .5A. l 00 B(2). If the address ends in an even number, the watering days shall be Tuesday and Saturday. If the address ends in an odd number, the watering days shall be Wednesday and Sunday.
(2) Large commercial landscapes and City parks shall also be limited to two days per week, as scheduled by the Public Works Department.
(3) Residential vehicle washing. Residents shall be allowed to wash their vehicles as established by Section 1 l.05A.050 D.
( 4) Further use of decorative fountains or reflection ponds shall be disconnected until further notice.
D. STAGE 4 - MANDATORY WATER CONSERVATION COMPLIANCE: WARNING.
Upon implementation of this Chapter by the City Manager pursuant to Section l l .5A.080 and publication of notice that Stage 4 Mandatory Conservation Compliance Measures are in effect, the following mandatory conservation compliance measures shall apply:
( 1) Outdoor landscape watering shall be limited to one day per week. If the address ends in an even number, the watering day shall be Saturday. If the address ends in an odd number, the watering day shall be Sunday. Watering hours shall be in accordance with Section l l .05A. l 00 B(2). No outdoor landscaping watering Monday through Friday.
(2) Large commercial landscaping and City parks shall be limited to one (1) day per week, as scheduled by the Public Works Department.
Newman City Code
Chapter 11.5A Water Conservation and Education Page 5/11 (3) Filling newly constructed or drained swimming pools with City water shall be prohibited. (4) Construction water from City fire hydrants shall be banned but treated effluent water from the wastewater treatment plant may be made available for construction water purposes. (5) Further use of decorative fountains or reflection ponds shall be discontinued until further notice. (6) Washing of automobiles, trucks, trailers, boats, airplanes and other types of mobile equipment not occurring upon the immediate premises of commercial car washes and commercial service stations and not in immediate interest of the public health, safety, and welfare shall be prohibited.
E. STAGE 5 - MANDATORY WATER CONSERVATION COMPLIANCE: WARNING.
Upon implementation of this Chapter by the City Manager pursuant to Section l l .5A.080 of this Code, and publication of notice that Stage 5 Mandatory Conservation Compliance Measures are in effect, the following mandatory conservation compliance measures shall apply:
(1) Outdoor landscape watering shall be prohibited. This includes multi-purpose commercial landscapes and City parks and median strips.
(2) Industry and commercial businesses shall be required to curtail consumption in order to maintain adequate supplies of water for health and safety.
(3) If there is total well failure, disaster relief from outside the City of Newman shall be required.
11.5A.110 Mandatory Water Conservation Compliance Phase Implementation.
A. The Director of Public Works, or his or her designee, shall monitor the projected supply and demand for water by its customers, with heightened emphasis during the months of April through October; B. The Director of Public Works, or his or her designee, shall recommend to the City Manager the extent of the Conservation Compliance Stage required in order for the City to prudently plan for and supply water to its customers.
C. The City Manager may order that the appropriate Stage of water conservation be implemented or terminated in accordance with the applicable provisions of this Chapter. When implementing Mandatory Water Conservation Compliance Stage 2, 3, and 4, said order shall be made by public announcement and shall be published a minimum of one ( 1) time in a daily newspaper of general circulation and shall become effective immediately upon such publication.
11.5A.120 Water Wasting Prohibited.
Water wasting, as defined by Section l l.5A.130 of this Code, is prohibited.
11.5A.130 Acts Constituting Water Wasting.
For the purposes of this title, acts constituting water wasting shall mean and include, but shall not be limited to, any of the following acts:
Newman City Code
Chapter 11.5A Water Conservation and Education Page 6/11 A. Failure to comply with the City of Newman Emergency Water Shortage Plan, any conservation stage declared thereunder, and/or any guidelines or outdoor landscape watering schedules in effect pursuant thereto.
B. Watering outdoor landscaping areas or gardens such that excess water leaves the property or area being watered.
C. Watering outdoor landscaping while raining and within 48 hours following any measurable rainfall.
D. Washing vehicles, boats, or equipment during restricted days or hours; and/or using an open hose not equipped with a quick-action automatic shut-off valve while so doing.
E. Hosing down driveways, streets, sidewalks, parking lots, and building exteriors without the prior written consent of the Public Works Director or his designee. If consent is given, any restrictions on the frequency, timing or method would remain in effect unless a health or safety condition existed.
F. Having leaky faucets, irrigation valves, sprinkler heads or plumbing fixtures on the premises.
G. Operating evaporated coolers which are not equipped with a recirculating pump.
11.5A.140 Notice of Acts Constituting Water Wasting.
A. Any utility customer, or person using the utilities with the consent of or actual or constructive knowledge of the customer, continue to commit acts which constitute the wasting of water, as provided in Section l l.5A.130 of this Code, shall be served Notice of Acts Constituting Water Wasting.
B. This Notice of Acts Constituting Water Wasting shall serve as a first warning and first Notice of Acts Constituting Water Wasting shall:
(1) Identify the date, time and circumstances of the violation; (2) State the amount of the potential penalty fee for water wasting; (3) Advise the customer of his or her appeal rights as provided herein; C. The Notice of Acts Constituting Water Wasting shall be served to any utility customer, or person using the utilities with the consent of or actual or constructive knowledge of the customer, continue to commit acts which constitute the wasting of water, as provided in Section l l.5A.130.
11.5A.150 Penalty Fee Assessment For Water Wasting.
A. A penalty fee in the sum of Twenty-five and no/l00ths ($25.00) Dollars shall be assessed to the utility customer's account for a first violation within one (1) year after being served with a Notice of Acts Constituting Water Wasting, pursuant to Section l l.5A.140 of this Code.
B. A penalty fee in the sum of Fifty and no/l00ths ($50.00) Dollars shall be assessed to the utility customer's account for a second violation within said one (1) year after being served with a Notice of Acts Constituting Water Wasting, pursuant to Section l 1.5A.140 of this Code.
C. A penalty fee in the sum of One Hundred and no/l00ths ($100.00) Dollars shall be assessed to the utility customer's account for a third violation within said one (1) year after being served with a Notice of Intention to Impose a Penalty Fee for Water Wasting, pursuant to Section l 1.5A.140 of this Code.
D. The City may, at its option, discontinue the service after the third violation after giving the customer written notice.
11.5A.160 Appeal.
Newman City Code
Chapter 11.5A Water Conservation and Education Page 7/11 A. A utility customer shall have the right to appeal to the City Manager, or his or her designee, the Notice of Acts Constituting Water Wasting, or any water wasting penalty fee assessed to his or her account.
B. The appeal hearing shall be held before the City Manager, or his or her designee. After hearing all of the evidence presented, he or she shall make the final administrative determination regarding the matter.
C. The customer shall be allowed to present such witnesses and evidence as he or she may desire.
D. Such appeal hearing is an administrative hearing and the rules of evidence shall not apply.
11.5A.l 70 Appeal Hearing Request.
A. The utility customer must request an appeal hearing in writing within fifteen (15) calendar days from the date of service of the Notice of Acts Constituting Water Wasting, or any water wasting penalty fee assessed to his or her account, unless the fifteenth day falls on a weekend day or City observed holiday.
B. The request for hearing shall be addressed to the City Manager and shall be deemed served only when received by the City. Failure to properly serve the request for hearing within the fifteen (15) calendar day period shall be deemed a waiver of the right to appeal the matter and the penalty fee will be assessed against the customer's account unless the fifteenth day falls on a weekend day or City observed holiday.
C. The hearing officer shall give written notice by mail to the utility customer of the date, time, and location of the appeal hearing, which hearing shall be held no sooner than ten (10) days from receipt of the request for hearing and no longer than thirty (30) days from receipt of such request.
D. The decision of the hearing officer shall be final. If the Notice of Acts Constituting Water Wasting, or any water wasting penalty fee assessed to an account is upheld, the penalty fee shall be assessed to the customer's account.
11.5A.180 Failure to Pay Penalty Fee.
Failure of any utility customer to pay the penalty fees imposed pursuant to this article as required shall be grounds to discontinue utility service until compliance is obtained.
City of Newman
2025 Urban Water Management Plan
Appendix G – Publication of Notice of Public Hearing
APPENDIX G
PUBLICATION OF NOTICE OF PUBLIC HEARING
City of Newman
2025 Urban Water Management Plan
Appendix H – Notice of Public Hearing
APPENDIX H
NOTICE OF PUBLIC HEARING
City of Newman
2025 Urban Water Management Plan
Appendix I – 2025 UWMP and WSCP Adoption Resolution
APPENDIX I
2025 UWMP AND WSCP ADOPTION RESOLUTION
(NOT INCLUDED IN DRAFT VERSION)
City of Newman
2025 Urban Water Management Plan
Appendix J – 2025 UWMP Checklist
APPENDIX J
2025 UWMP CHECKLIST
(TO BE INCLUDED IN PUBLIC REVIEW VERSION)
Honorable Mayor and Members
of the Newman City Council
Agenda Item: 9.b.
City Council Meeting
of October 13, 2026
REPORT ON A DEVELOPMENT AGREEMENT FOR SOUZA DEVELOPMENT AGREEMENT RECOMMENDATION:
Staff recommends the Council:
1. Hold a Public Hearing, and
2. Conduct First Reading and Introduction of Ordinance No. 2026- , an Ordinance approving the Development Agreement for the Souza Commercial Center.
BACKGROUND:
On September 18, 2025, the Planning Commission approved the Souza Commercial Center (Site Plan Review (SPR) No. 2025-02) that consists ofup to eight (8) buildings totaling approximately 107,000 square feet, approximately 540 parking spaces, and approximately 83,250 square feet oflandscaping, on a site of 15.1 gross acres (approximately 11.8 acres following right-of-way dedications).
The City Council previously certified the Mitigated Negative Declaration (SCH No. 2023020708) for the Project pursuant to Resolution No. 2024-33 on September 24, 2024, together with the associated Mitigation Monitoring and Reporting Program.
ANALYSIS:
The Souz.a Commercial Center project consists ofup to eight (8) buildings totaling approximately 107,000 square feet, approximately 540 parking spaces, and approximately 83,250 square feet of landscaping, on a site of approximately 15.1 gross acres (approximately 11.8 acres following right-of-way dedication).
The Development Agreement has an Initial Term of ten (10) years, subject to a one-time five (5) year Extension Term if the Developer installs, and the City accepts, not less than $10,000,000 in infrastructure improvements serving the Project (including the Highway 33 and Mattos Drive frontage improvements) within the Initial Term.
In exchange for the vesting and term benefits provided by the Agreement, Exhibit C (Special Conditions and Requirements) obligates the Developer to, among other things:
(a) Establish a Property Owners' Association responsible for long-term maintenance of all common areas, landscaping, and the required sound wall.
(b) Dedicate, design, and construct frontage and off-site improvements along Highway 33 and the Mattos Drive extension, including the Highway 33/Mattos Drive intersection, to Caltrans standards. (c) Construct a minimum nine-foot sound wall along the westerly property line adjacent to residentially zoned property prior to issuance of the first certificate of occupancy for any adjacent building. ( d) Install landscaping consistent with the Highway 33 Specific Plan and City Street Tree Plan and provide bicycle parking consistent with the Municipal Code.
( e) Comply with the Mitigation Monitoring and Reporting Program and all Conditions of Approval adopted for SPR No. 2025-02.
The Agreement also reserves to the City its standard police powers and authority to apply future health and safety regulations, utility rate adjustments, and new or increased impact fees, consistent with the City's standard development agreement provisions.
FISCAL IMPACT:
Positive. The Developer is responsible for all costs of associated with frontage, off-site, and on-site infrastructure improvements serving the Project.
The Development also remains subject to current impact fees for the project and will generate ongoing property and sales tax revenue to the City.
Agenda Item: 9. b.
CONCLUSION:
Staff worked with the Developer to craft a Development Agreement that provides the Developer with a vested right to develop the Project consistent with the Entitlements, in exchange for the Developer's commitment to construct significant public infrastructure improvements and comply with the conditions for the project. Staff recommends that Council hold a Public Hearing and conduct First Reading of Ordinance No. 2026- , approving the Development Agreement for the Souza Commercial Center.
ATTACHMENTS:
1. Exhibit A - Ordinance No. 2026- , an Ordinance approving the Souza Commercial Center Development Agreement.
2. Exhibit B - Souza Commercial Center Development Agreement.
Respectfully submitted,
-
Michael Holland
City Manager
ORDINANCE NO. 2026 -
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWMAN APPROVING A
DEVELOPMENT AGREEMENT FOR SOUZA COMMERCIAL CENTER
WHEREAS, The Planning Commission held a Public Meeting on Thursday, September 18, 2025, to consider a Site Plan Review application to develop a shopping center consisting of up to eight (8) buildings totaling approximately 107,000 square feet, approximately 540 parking spaces, and approximately 83,250 square feet oflandscaping, on a site of approximately 15.1 gross acres; and WHEREAS, The Planning Commission approved Site Plan Review (SPR) No. 2025-02 with specific conditions of approval; and
WHEREAS, The City Council conducted a Public Hearing on October 13, 2026, to consider and review a Development Agreement for Souza Commercial Center; and WHEREAS, Notice of the Public Hearing was given in the time and in the manner required by State Law and City Code;
WHEREAS, The City Council finds the Development Agreement for Souza Commercial Center is consistent with the City of Newman General Plan and the Highway 33 Specific Plan. State Law does not require a precise or exact match between this Project and the General Plan. To be consistent, a Project must be compatible with the plan's purpose and policies. This Project is in conformity with the Newman General Plan's objectives, policies, general land uses, and programs specified in the General Plan and Highway 33 Specific Plan; and
WHEREAS, This Development Agreement will not inhibit nor obstruct the attainment of the Newman General Plan. The Council has independently reviewed the evidence and in its independent judgment has determined that the Development Agreement is consistent with the General Plan; and WHEREAS, This Development Agreement would not directly result in any physical land use changes or impacts to the environment; and
WHEREAS, The City Council finds that commercial developments of this size require substantial private investment and develop over longer periods of time; and WHEREAS, The City Council determines the best interests of the City of Newman and of its residents would be served by the approval of this Development Agreement; and WHEREAS, The City Council of the City of Newman hereby finds that said Development Agreement is consistent with the objectives, policies, general land uses, and programs specified in the Newman General Plan and the Highway 33 Specific Plan; and
WHEREAS, The City of Newman determined that Environmental Review has been addressed through the Mitigated Negative Declaration (SCH 2023020708) adopted by the City Council through Resolution No. 2024-33; and
WHEREAS, The City Council of the City of Newman finds that said CEQA Compliance has been addressed in the adopted Mitigated Negative Declaration and the Development Agreement for Souza Commercial Center will not be detrimental to the health, safety, and general welfare of persons residing in the immediate area nor detrimental to the general welfare of the residents of Newman as a whole; and WHEREAS, In full compliance with CEQA the Newman City Council approved and adopted the Highway 33 Specific Plan ("Specific Plan"); and
WHEREAS, The Development Agreement is consistent with the goals and policies of the Specific Plan; and
WHEREAS, The City Council of the City of Newman finds that said Development Agreement will not adversely affect the orderly development of property or the preservation of property values; and WHEREAS, To strengthen the public planning process, encourage private participation in comprehensive planning and reduce the economic costs of development, the Legislature of the State of California adopted Section 65864 et seq. of the Government Code (the "Development Agreement Statute"), which authorizes the City to enter into a development agreement with any person/entity having a legal or equitable interest in real property providing for the development of such property and establishing certain development rights therein; and
WHEREAS, The City finds the Developer has a legal or equitable interest in the property subject to the Development Agreement; and
WHEREAS, The City Council has considered all of the evidence, including the conclusions and recommendations of our planning department.
NOW, THEREFORE, BE IT ORDAINED By the City Council of the City of Newman as follows:
Section 1. The recitals above are true and correct, and the City Council hereby makes the findings set forth herein.
Section 2. The City Council of the City of Newman hereby approves the Development Agreement for Souza Commercial Center, Exhibit "A," and finds that said Development Agreement is consistent with the requirements of Government Code Section 65864, et seq.
Section 3. The City Manager and City Clerk of the City of Newman are authorized and directed to execute and record said Development Agreement.
Section 4. This ordinance is not intended to and shall not be construed or given effect in a manner that imposes upon the city or any officer or employee thereof a mandatory duty of care toward persons and property within or without the city so as to provide a basis of civil liability for damages, except as otherwise imposed by law.
Section 5. If any provision of this ordinance or application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of the ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this ordinance are severable. The city council hereby declares that it would have adopted this ordinance irrespective of the validity of any particular portion thereof.
Section 6. This ordinance shall become effective thirty (30) days after its final passage.
Section 7. Within fifteen (15) days after its final passage, the City Clerk shall cause this ordinance to be published in the West Side Index in accordance with Section 36933 of the Government Code.
Council Member _______ introduced the foregoing ordinance, and the title thereof was read at the regular meeting of the City Council of the City of Newman held on October 13, 2026; by a vote of the council members present, further reading was waived.
On motion of Council Member-------~ seconded by Council Member-------~ the foregoing ordinance was duly passed by the City Council of the City of Newman at a regular meeting thereof held on October 27, 2026 by the following vote:
AYES:
NOES:
ABSTENTIONS:
ABSENT:
ATTEST:
Mike Maier,
City Clerk of the City of Newman,
County of Stanislaus, State of California
APPROVED:
Casey Graham,
Mayor of the City of Newman,
County of Stanislaus, State of California
Requested By:
City of Newman
When Recorded Mail Document To:
Mike Maier, City Clerk
City of Newman
P.O. Box 787
Newman, CA 95360
No Recording Fee
SPACE ABOVE THIS LINE RESERVED FOR RECORDER'S USE ONLY
DEVELOPMENT AGREEMENT
BY AND BETWEEN
THE CITY OF NEWMAN AND GEORGE SOUZA
RELATIVE TO THE DEVELOPMENT KNOWN AS
SOUZA COMMERCIAL CENTER
This document, including Exhibits, totals [_] pages.
1 REFERENCE SHEET
Project Name:
Souza Commercial Center
Project:
The proposed project consists of the development of a commercial shopping center, approved pursuant to Site Plan Review (SPR) No. 2025-02, consisting ofup to eight (8) buildings totaling approximately 107,000 square feet, approximately 540 parking spaces, and approximately 83,250 square feet of landscaping, on a site of approximately 15.1 gross acres (approximately 11.8 acres following right-ofway dedication), located on the west side of State Route 33 (Highway 33) at the southernmost entrance to the City of Newman, and identified as Stanislaus County Assessor's Parcel Numbers 026-016-015, 026-016-016, and 026-016-058.
Developer:
George Souza
Developer's Address for Purpose of Written Notice:
2101 Hallowell Road, Newman, CA 95360
Landowner:
George and Marlene Souza
Landowner's Address for Purpose of Written Notice:
2101 Hallowell Road, Newman, CA 95360
Term:
The term of this Agreement, as provided in Section 1.8, is ten (10) years (the "Initial Term"), subject to a one-time extension of five (5) years (the "Extension Term") if Developer has installed, and the City has accepted, not less than Ten Million Dollars ($10,000,000) in infrastructure improvements serving the Project within the Initial Term, as more particularly set forth in Section 1.8.
Entitlements:
As referred to in the recitals of the Adopting Ordinance, Entitlements shall mean Site Plan Review SPR No. 2025-02, and this Development Agreement.
CEQA document:
As referred to in the recitals of the Adopting Ordinance, the CEQA document shall mean the Mitigated Negative Declaration, SCH No. 2023020708, certified by the City Council pursuant to Resolution No. 2024-33 on September 24, 2024, together with the associated Mitigation Monitoring and Reporting Program.
Adopting Ordinance:
As referred to in Section l .3(a), the adopting ordinance shall mean Ordinance No. 2026-_ enacted by the City Council on---~ 2026.
2 The following Exhibits are attached to this Development Agreement:
A. Legal Description of Subject Property
B. Assumption Agreement
C. Special Conditions and Requirements
D. Sample Notice of Termination
3 ARTICLE 1
GENERAL PROVISIONS
Section 1.1. The Proiect. The Project is defined as set forth on the Reference Sheet.
Section 1.2. Subiect Property. The Subject Property is more specifically described in Exhibit A, which is incorporated herein and made part of this Agreement.
Section 1.3. Definitions. As used in the Agreement, the following terms, phrases and words shall have the meanings and be interpreted as set forth in this Section. (a) Adopting Ordinance means the ordinance which approves this Agreement. (b) Assumption Agreement means an agreement substantially conforming to the model assumption agreement described in Exhibit B, or other agreement in a form approved by the City Attorney, executed by a Landowner with the Developer, expressly assuming various obligations relating to the development of the Project, or portion thereof.
(c) CEQA means the California Environmental Quality Act, section 21000 et seq., of the Public Resources Code of the State of Caiifornia.
(d) City Council means the City Council of the City of Newman. (e) City Laws means ordinances, resolutions, rules, regulations, policies, motions, directives, mitigation measures, conditions, standards, specifications, dedications, fees, taxes (including without limitation general, special and excise taxes), assessments, liens, other exactions and impositions, and any other actions having the force of law, that are enacted or adopted by City, or by its electorate through the initiative or referendum process.
(f) Current Fees means those City development fees and utility rates and fees in effect as of the Effective Date as specified in Section 2.5.
(g) Developer shall mean that person or entity that has applied for this Development Agreement as defined on the Reference Sheet.
(h) Director means the Community Development Director for the City, or his/her designee. (i) Effective Date means the effective date of the Adopting Ordinance. (i) Entitlements shall mean those approvals listed on the Reference Sheet of this Agreement, approved copies of which are on file with the City Council.
(k) General Plan means the General Plan of the City, including the text and maps. (1) Landowner is a party who has acquired any portion of the Subject Property from the Developer who, unless otherwise released as provided in this Agreement, shall be subject to the applicable provisions of this Agreement.
(m) New Fees means those fees adopted by the City after the Effective Date. • (n) Planning Commission shall mean the City's Planning Commission, or its designee. 4 (o) Reserved Powers shall mean those powers explicitly reserved to the City by this Agreement. (p) Subject Property means the property described in Section 1.2, or the remaining portions thereof after releases :from the provisions of this Agreement have been executed as authorized by this Agreement.
Section 1.4. Exhibits. Exhibits to this Agreement are as follows:
Exhibit A Legal Description of Subject Property
Exhibit B Assumption Agreement
Exhibit C Special Conditions and Requirements
Exhibit D Sample Notice of Termination
Section 1.5. Incorporation of Recitals. The recitals set forth in the Adopting Ordinance are incorporated herein by this reference, including all exhibits referred to therein. In the event of inconsistency between those recitals and the provisions of Articles 1 through 5, the provisions of Articles 1 through 5 shall prevail..
Section 1.6. Parties to Agreement. The parties to this Agreement are:
(a) The City of Newman. The City is a municipal corporation exercising its general governmental functions and powers. The principal office of the City is located at 938 Fresno Street, Newman, California, 95360.
(b) Developer. Developer owns fee interest in the Subject Property. (c) Landowner. From time to time, as provided in this Agreement, Developer may sell or otherwise lawfully dispose of a portion of the Subject Property to a Landowner who, unless otherwise released, shall be subject to the applicable provisions of this Agreement related to such portion of the Subject Property.
Section 1.7. Project is a Private Undertaking. It is agreed among the parties that the Project is a private development and that the City has no interest therein except as authorized in the exercise of its governmental functions.
Section 1.8. Term of Agreement. This Agreement shall commence upon the Effective Date of the Adopting Ordinance approving this Agreement and shall continue in force for the Initial Term shown on the Reference Sheet under "Term." The Initial Term shall be automatically extended by the Extension Term of five ( 5) years if, prior to expiration of the Initial Term, Developer demonstrates to the reasonable satisfaction of the Director that not less than Ten Million Dollars ($10,000,000) in infrastructure improvements serving the Project (including, without limitation, the Highway 33 and Mattos Drive :frontage improvements and other public improvements required under Exhibit C) have been installed by Developer and accepted by the City. Developer shall submit documentation substantiating the cost of such improvements, together with evidence of the City's acceptance thereof, to the Director not less than ninety (90) days prior to expiration of the Initial Term. If the Director determines that the $10,000,000 threshold has not been satisfied, Developer may appeal that determination to the City Council, whose decision shall be final. All references in this Agreement to the "Term" shall include the Extension Term, if and when it takes effect.
5 Section 1.9. Assignment and Assumption. Developer shall have the right to sell, assign, or transfer this Agreement with all the rights, title and interests therein to any person, firm or corporation at any time during the term of this Agreement, subject to the prior written consent of the City, which consent shall not be unreasonably withheld, conditioned, or delayed. Developer shall submit a written request for consent to the Director not less than thirty (30) days prior to the proposed effective date of the assignment, together with (i) evidence of the proposed assignee's financial capacity and relevant development or ownership experience, and (ii) the proposed form of Assumption Agreement. In evaluating the request, the City may consider, among other factors, the proposed assignee's financial capacity to complete any then-outstanding obligations of Developer under this Agreement and Exhibit C. The City's consent shall not be required for: (a) a transfer to an entity that is wholly owned or controlled by, or under common control with, Developer; (b) a transfer, lease, or conveyance of a completed building which has received a certificate of occupancy and as to which this Agreement has terminated pursuant to Section 1.1 0; or ( c) a transfer to a lender or its designee pursuant to a foreclosure, deed-in-lieu of foreclosure, or other exercise ofremedies under a recorded security instrument.
The conditions and covenants set forth in this Agreement and incorporated herein shall run with the land and the benefits and burdens shall bind and inure to the benefit of the parties. Developer shall provide City with a copy of the executed Assumption Agreement within ten (10) calendar days of the assignment.
Express written assumption by such purchaser, assignee or transferee, to the satisfaction of the City Attorney, of the obligations and other terms and conditions of this Agreement with respect to the Subject Property or such portion thereof sold, assigned or transferred, shall relieve the Developer selling, assigning or transferring such interest of such obligations so expressly assumed. Any such assumption of Developer's obligations under this Agreement shall be deemed to be to the satisfaction of the City Attorney if executed in the form of the Assumption Agreement attached hereto as Exhibit B and incorporated herein by this reference, or such other form as shall be approved by the City Attorney.
If, at the time of a proposed assignment, any infrastructure or other improvement required of Developer under Exhibit C has not been completed and accepted by the City, Developer shall, as a condition of the City's consent to such assignment, post security in a form and amount satisfactory to the City Engineer (which may include a bond, letter of credit, or cash deposit) guaranteeing completion of such improvement, unless the assignee assumes that obligation and itself posts security satisfactory to the City Engineer in substitution therefor.
Section 1.10. Covenants Running with the Land. Each and every purchaser, assignee or transferee of an interest in the Subject Property, or any portion thereof, shall be obligated and bound by the terms and conditions of this Agreement, and shall be the beneficiary thereof and a party thereto, but only with respect to the Subject Property, or such portion thereof, sold, assigned or transferred to it. Any such purchaser, assignee or transferee shall observe and fully perform all of the duties and obligations of a Developer contained in this Agreement, as such duties and obligations pertain to the portion of the Subject Property sold, assigned or transferred to it. Provided however, notwithstanding anything to the contrary above, if any such sale, assignment or transfer relates to a completed building which has been approved by the City for occupancy, this Agreement shall automatically terminate as to that building.
Section 1.11. Amendment to Agreement (Developer and City). This Agreement may be amended by mutual consent of the parties in writing, in accordance with the provisions of Government Code section 65868, provided that: any amendment which relates to the term, permitted uses, density, intensity of use, height and size of proposed buildings, or provisions for reservation and dedication of land shall require a noticed public hearing before the parties may execute an amendment. Unless otherwise provided by law, all other amendments may be approved without a noticed public hearing. 6 Any amendment entered into between the City and the Developer shall require the signature of each owner of any portion of the Subject Property to the extent the amendment modifies this Agreement as to that other owner's property.
Section 1.12. Amendment to Agreement (Landowner and City). This Agreement may also be amended, subject to the provisions of Government Code section 65868, between a Landowner who has acquired a portion of the Subject Property from Developer and City as to the portions of the Subject Property then owned by Landowner. Any amendment entered into between the City and a Landowner shall require the signature of each Landowner of any portion of the Subject Property or the Developer to the extent the amendment modifies the Agreement as to that Landowner's or the Developer's property.
Section 1.13. Releases. Developer, and any subsequent Landowner, may free itself from further obligations relating to the sold, assigned, or transferred property, provided that the City Clerk receives a copy of the Assumption Agreement provided for in Section 1.9. · Section 1.14. Notices. Notices, demands, correspondence, and other communication to City and Developer shall be deemed given if dispatched by prepaid first-class mail to the principal offices of the parties as designated in Section l.6(a). Notice to the City shall be to the attention of both the City Manager and the Director. Notices to subsequent Landowners shall be required to be given by the City only for those Landowners who have given the City written notice of their address for such notices. The parties hereto may, from time to time, advise the other of new addresses for such notices, demands or correspondence.
Section 1.15. Reimbursement for Agreement Expense of City. Developer agrees to reimburse City for actual expenses over and above fees paid by Developer as an applicant, for preparation of the form of this Agreement, in addition to costs specifically incurred by City for the preparation of this Agreement, including recording fees, publishing fees, and reasonable staff and consultant costs not otherwise included within application fees then due and payable to the City. Such reimbursement shall be paid to the City prior to execution of this Agreement by the City. Developer shall also pay any and all installments of property tax then due for the Subject Property.
Section 1.16. Recordation of Agreement. The City Clerk shall cause a copy of this Agreement to be recorded with the City Recorder not later than ten (10) days after the Effective Date following execution of this Agreement by the City. Developer hereby covenants that during the period following execution and the recording of this Agreement by the City, neither Developer nor Landowner shall, without prior written approval by the City Attorney, cause or allow to be recorded against the Subject Property any instrument affecting the priority, validity or enforceability of this Agreement.
Section 1.17. Applicable Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California.
Section 1.18. Invalidity of Agreement/Severability. If this Agreement in its entirety is determined by a court to be invalid or unenforceable, this Agreement shall automatically terminate as of the date of final entry of judgment. If any provision of this Agreement shall be determined by a court to be invalid and unenforceable, or if any provision of this Agreement is rendered invalid or unenforceable according to the terms of any federal or state statute, which became effective after the Effective Date, the remaining provisions shall continue in full force and effect.
Section 1.19. Third Party Legal Challenge. In the event any legal action or special proceeding is commenced by any person or entity other than a party or a Landowner, challenging this Agreement, the Entitlements or any approval subsequently granted by the City for the development of the Subject 7 Property, the parties and any Landowner agree to cooperate with each other in good faith. City may elect to tender the defense of any lawsuit filed by a third person or entity to Developer and/or Landowner(s) . (to the extent the litigation, in part or in whole, seeks to overturn or invalidate this Agreement, the Entitlements or any subsequent approval granted for the Subject Property held by or granted to Developer and/or Landowner), and, in such event, Developer and/or such Landowner(s) shall indemnify, hold the City harmless from and defend the City from all costs and expenses incurred in the defense of such lawsuit, including, but not limited to, damages, attorneys' fees and expenses of litigation awarded to the prevailing party or parties in such litigation. For purposes of this section only, "City" shall include all employees, consultants and agents acting on behalf of the City. Neither party shall settle any such lawsuit without the consent of the other party, such consent not to be unreasonably withheld.
Notwithstanding the previous sentence, the City shall not be required as part of a settlement to pay fees or costs. The City may elect to participate in the litigation, in which case the Developer and/or Landowner agree to reimburse the City for its litigation costs and fees, including the retention of outside legal counsel and all staff costs. It is the intent of the Parties that the City's participation not result in unnecessary duplication of legal services, but rather that the City's active involvement in the litigation be limited to supervising the preparation of the administrative record or discovery as applicable, monitoring oflitigation, and responsive pleadings regarding issues which, in the sole opinion of the City, involve broader City concerns than those immediately affecting the Landowner and/or Developer. Upon written demand of the City, Developer and/or Landowner shall deposit with the City such sums as may be specified by the City as its estimated litigation costs and fees for the following thirty day period. Both parties shall act in good faith, and shall not unreasonably withhold consent to settle. In the event that the City elects to settle a claim, and Developer refuses to also settle, City at its sole option may require Developer to post security in a form and amount reasonably acceptable to the City, for the performance of Developer's duties under this section. If the Developer, within 30 days of receiving written notice from City, fails to post this security, the Developer shall settle the claim on terms as previously approved by the City. This provision shall survive the termination of this Agreement.
Section 1.20. Waiver of Claims. Developer and Landowner waive, as to the Subject Property only, any and all existing claims that may have against the City, its agents, employees and consultants, arising out of the adoption and/or application of development requirements and standards, impact fees, the adoption of this Agreement or approval of the Entitlements and all of the proceedings, acts or determinations made prior thereto.
Section 1.21. Priority of Enactment. In the event of conflict between the Development Agreement, the Entitlements and the City Laws, the parties agree that the following sequence of approvals establishes the relative priority of approvals, each approval superior to the approvals listed thereafter: ( 1) Exhibit C to this Agreement; (2) the Development Agreement; (3) the Entitlements and (4) the City Laws. In the event of a conflict between two or more of the foregoing documents, the language of that document which is superior in priority as provided above shall govern.
ARTICLE2
PROJECT DEVELOPMENT
Section 2.1. Limited Vested Right. During the Term of and subject to the terms of this Agreement, the Developer's rights shall be vested only as to the Entitlements. "Vested" shall mean that except as to express limitations and reservations contained in this Agreement, Developer's Entitlements shall not be subject to changes in City Laws. In the event that the City grants an approval or permit in the 8 implementation of the Project, the approval or permit shall also be considered vested. This section shall not be construed to limit the authority or obligation of the City to hold necessary public hearings, or to limit the discretion of the City or any of its officers or officials with regard to rules, regulations, ordinances, laws and entitlements, which require the exercise of discretion by the City or any of its officers or officials.
Section 2.2. No Moratorium, Quotas, Restrictions, or Other Growth Limitations. Except as otherwise provided by the terms and conditions of this Agreement or the Entitlements, no ordinance, resolution, rule, regulation or policy of City shall be applied, imposed or enacted by City, by resolution, ordinance, initiative, or otherwise, which in any way relates to the rate, timing or sequencing of the development or use of the Property, or any improvements related thereto, including without limitation, any no-growth or slow-growth moratoriums or annual development allocations, quotas or limitations, or in any way conflicts with the permitted uses, density and intensity of uses, maximum building height and size set forth in the Entitlements; provided, however, Developer shall be subject to any such growth limitation ordinance, resolution, rule, regulation or policy which is adopted on a uniformly applied, Citywide basis and directly concerns a public health or safety issue, in which case City shall treat Developer in a uniform, equitable and proportionate manner with all properties which are zoned consistent with Developer's zoning set forth in the Entitlements.
Section 2.3. Permitted Uses and Development Standards. The permitted uses and development standards shall be those as set forth in and permitted by the Entitlements, City Zoning (Highway Commercial, C-8), the Highway 33 Specific Plan, and City subdivision and land development standards, as of the Effective Date. •
Section 2.4. Application, Processing and Inspection Fees. Application fees, processing fees, and inspection fees that are revised during the term of this Agreement shall apply to the development pursuant to this Agreement, provided that such revised fees apply generally to similar private projects or works within City.
Section 2.5. Impact Fees. Developer shall be subject to all development impact fees, including scheduled or periodic increases, as provided for in the adopting ordinances or resolutions ("Current Fees"), as identified on Exhibit C. Developer shall pay, without protest or without challenge, Current Fees in effect at the time of the issuance of a requested permit or entitlement.
In addition, Developer is subject to any new fees adopted by the City, or the recalculation of existing fees ("New Fees") and waives any and all claims of vested rights or the assertion of this Agreement as a bar to the application of the new fees. Developer retains the right to otherwise challenge New Fees as permitted by law. •
Section 2.6. Reserved Powers. Notwithstanding any other provision of this Agreement, and without limitation as to any other requirements or exceptions contained in this Agreement, the City retains the authority to take the following actions and apply the same to the Subject Property:
(a) The authority of the City Council to adopt regulations to protect the City and its citizens from an immediate adverse risk to health and safety. This shall include, but not be limited to, lack of sufficient sewer and/or water facilities.
(b) Adopt or increase utility charges in accordance with applicable laws and regulations. (c) As set forth in Section 2.5, increase and apply Current Fees, and adopt and apply New Fees. 9 (d) Adopt revised subdivision regulations, building design standards, and development improvement standards.
(e) Land use regulations, ordinances, policies, programs, resolutions or fees adopted or undertaken by City in order to comply with state or federal laws or regulations, provided that in the event that such state or federal laws or regulations prevent or preclude compliance with one or more provisions of this Agreement, such provision or provisions shall be modified or suspended as may be necessary to comply with such state or federal laws or regulations.
(t) City land use regulations, ordinances, policies, programs or resolutions adopted after the Effective Date, which are in conflict with the City Laws, but the application of which to the development of the Subject Property has been consented to in writing by the Developer and/or the applicable Landowner by later separate document, which consent Developer and/or Landowner may withhold in their sole and exclusive discretion.
Section 2. 7. Obligation and Rights of Mortgage Lenders. The holder of any mortgage, deed of trust or other security instrument with respect to the Subject Property, or any portion thereof, shall not be obligated under this Agreement to construct or complete improvements or to guarantee such construction or completion, but, in the event said holder takes title to the Subject Property through foreclosure of a mortgage or a deed of trust, or deed-in-lieu of such foreclosure, said holder shall be bound by all of the terms and conditions of this Agreement which pertain to the Subject Property or such portion thereof in which it holds an interest. Any such holder who comes into possession of the Subject Property, or any portion thereof, pursuant to a foreclosure of a mortgage or a deed of trust, or deed in lieu of such foreclosure, shall take the Subject Property, or such portion thereof, subject to any pro rata claims for payments or charges against the Subject Property, or such portion thereof, which accrue prior and subsequent to the time such holder comes into possession. Nothing in this Agreement shall be deemed or construed to permit or authorize any such holder to devote the Subject Property, or any portion thereof, to any uses, or to construct any improvements thereon, other than those uses and improvements provided for or authorized by this Agreement, subject to all of the terms and conditions of this Agreement.
ARTICLE3
DEFAULT
Section 3.1. General Provisions. Subject to extensions of time by mutual consent in writing, failure or delay by either party or Landowner not released from this Agreement to perform any term or provision of this Agreement, shall constitute a default. In the event of alleged default or breach of any terms or conditions of this Agreement, the party alleging such default or breach shall give the other party or Landowner not less than sixty ( 60) days notice in writing specifying the nature of the alleged default and the manner in which said default may be cured. During any such sixty ( 60) day period, the party or Landowner charged shall not be considered in default for purposes of termination or institution of legal proceedings.
After notice and expiration of the sixty ( 60) day period, if such default has not been cured or is not being diligently cured in the manner set forth in the notice, the other party or Landowner to this Agreement may, at his/her option, institute legal proceedings pursuant to this Agreement or give notice of his/her intent to terminate this Agreement pursuant to California Government Code section 65868 and any regulations of the City implementing said Government Code section. Following notice of intent to terminate, or prior to instituting legal proceedings, the matter shall be scheduled for consideration and 10 review in the manner set forth in Government Code sections 65865, 65867, and 65868 and City regulations implementing said sections by the City within thirty (30) calendar days.
Following consideration of the evidence presented in said review before the City and an additional 30- day period to cure, either party alleging the default by the other party or Landowner may institute legal proceedings or may give written notice of termination of this Agreement to the other party; provided, however, a Landowner may only give such notice with respect to such portion of the Subject Property in which Landowner owns an interest.
Section 3.2. Annual Review. City's Planning Department shall, at least every twelve (12) months during the term of this Agreement, review the extent of good faith substantial compliance by Developer and Landowner with the terms of this Agreement. Such periodic review shall conform to the procedures provided in Section 6.11.120 of the City's Code and be limited in scope to compliance with the terms of this Agreement pursuant to California Government Code section 65865.1. Each said review shall be completed within sixty (60) days of the first meeting of the Planning Commission and the City Council, respectively, at which such review is undertaken, unless said period is extended by mutual consent of City and Developer. Failure to complete said review within the prescribed period shall be deemed a finding of good faith substantial compliance. Notice of such annual review shall include the statement that any review may result in amendment or termination of this Agreement. City may charge, and Developer shall pay a fee for such annual review to defray the cost to the City to process and conduct such annual review.
City shall deposit in the mail or fax to Developer and/or Landowner a copy of all staff reports and, to the extent practical, related exhibits concerning contract performance at least seven (7) days prior to such periodic review. Developer or Landowner shall be entitled to appeal the City's decision.
Section 3.3. Developer Default Limited to Property/Entity; Separate Obligations of Owners.
Except as specified herein in Section 3 .1, no default hereunder in performance of a covenant or obligation with respect to a particular portion of the Subject Property shall constitute a default applicable to any other portion of the Subject Property, and any remedy arising by reason of such default shall be applicable solely to the portion of Subject Property where the default has occurred. Similarly, the obligations of the Developer and Landowners shall be severable 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 Subject Property owned by the defaulting owner.
Section 3.4. Default by City. In the event City does not accept, review, approve or issue necessary development permits or entitlements for use in a timely fashion as defined by this Agreement, or as otherwise provided in this Agreement, or the City otherwise defaults under the terms of this Agreement, Developer and/or Landowner may give written notice thereof to the City and if not cured within sixty (60) days following receipt of such notice, Developer shall have all rights and remedies provided herein or under applicable law, including without limitation the right to pursue actions for mandamus, specific performance, or injunctive or declaratory relief to enforce this Agreement. Notwithstanding the foregoing sentence, the City, Developer and Landowner each waives any and all rights to seek monetary damages from any other party as a result of any breach or alleged breach of such other party's obligations hereunder. In the event City is in default under the terms of this Agreement, any resulting delays in Developer's performance caused thereby shall not constitute grounds for termination or cancellation of this Agreement.
11 Section 3.5. Cumulative Remedies of Parties/Waiver of Right to Damages. In addition to any other rights or remedies, City, Developer and any Landowner may institute legal or equitable proceedings to cure, correct or remedy any default, to specifically enforce any covenant or agreement herein, to enjoin any threatened or attempted violation of the provisions of this Agreement. Notwithstanding the foregoing sentence, the City, Developer and Landowner each waives any and all rights to seek monetary damages from the other party as a result of any breach or alleged breach of such other party's obligations hereunder.
Section 3.6. Enforced Delay, Extension of Times of Performance. In addition to specific provisions of this Agreement, performance by either party or Landowner hereunder shall not be deemed to be in default where delays or defaults are due to war, insurrection, strikes, walkouts, riots, floods, earthquakes, fires, casualties, acts of God, State or federal laws, regulations, decisions or orders which conflict with this Agreement, or judicial or other governmental agency decisions or orders, directing the City, or which have the effect of requiring the City, to take actions or refrain from taking actions which conflict with the obligations under this Agreement. Any and all extensions of the time of performance shall be limited to sixty ( 60) months.
Section 3.7. Tolling Due to Litigation. In the event of a lawsuit challenging the Entitlements or the CEQA document, the Developer's obligations shall be automatically tolled for up to thirty-six (36) months. The Developer may apply for an additional tolling period of up to twenty-four (24) months, which the City may grant, in its sole discretion, based upon a finding that the Developer has actively defended the lawsuit in good faith.
Neither Section 3.6 nor 3.7 tolls the annual adjustment in the amount of fees otherwise due.
ARTICLE4
TERMINATION
Section 4.1. Termination Upon Completion of Development. This Agreement shall terminate upon the expiration of the Term as defined on the Reference Sheet or when the Subject Property has been fully developed and all of the Developer's obligations in connection therewith are satisfied. Upon termination of this Agreement, the City shall record a notice of such termination in substantially the form attached hereto as Exhibit D. This Agreement shall automatically terminate and be ofno further force or effect as to any building, and the lot or parcel upon which such building is located, when it has been approved by the City for occupancy.
Section 4.2. Effect of Termination on Developer Obligations. Termination of this Agreement as to the Developer of the Subject Property or any portion thereof shall not affect any of the Developer's obligations to comply with the City General Plan and the terms and conditions of any applicable zoning, site plan review approval, or other land use entitlements approved with respect to the Subject Property, any other covenants or any other development requirements specified in this Agreement to continue after the termination of this Agreement, or obligations to pay assessments, liens, fees, or taxes.
Section 4.3. Effect of Termination on City. Upon any termination of this Agreement, as provided for under the terms and conditions of this Agreement, as to the Developer of the Subject Property, or any portion thereof, the entitlements, conditions of development, limitations on fees and all other terms and conditions of this Agreement shall no longer be vested hereby with respect to the Subject Property affected by such termination (provided vesting of entitlements, conditions or fees applicable to the 12 Subject Property shall be governed by planning and zoning law) and the City shall no longer be limited by this Agreement to make any changes or modifications to such entitlements, conditions or fees applicable to the Subject Property.
ARTICLES
STANDARD TERMS AND CONDITIONS
Section 5.1. Venue. Venue for all legal proceedings shall be in the Superior Court for the County of Stanislaus.
Section 5.2. Waiver. A waiver by any party of any breach of any term, covenant or condition herein contained or a waiver of any right or remedy of such party available hereunder at law or in equity shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition herein contained or of any continued or subsequent right to the same right or remedy. No party shall be deemed to have made any such waiver unless it is in writing and signed by the party so waiving.
Section 5.3. Completeness of Instrument. This Agreement, together with its specific references and attachments, constitutes all of the agreements, understandings, representations, conditions, warranties and covenants made by and between the parties hereto. Unless set forth herein, neither party shall be liable for any representations made express or implied.
Section 5.4. Supersedes Prior Agreements. It is the intention of the parties hereto that this Agreement shall supersede any prior agreements, discussions, commitments, representations or agreements, written or oral, between the parties hereto.
Section 5.5. Captions. The captions of this Agreement are for convenience in reference only and the words contained therein shall in no way be held to explain, modify, amplify or aid in the interpretation, construction or meaning of the provisions of this Agreement.
Section 5.6. Number and Gender. In this Agreement, the neuter gender includes the feminine and masculine, and the singular includes the plural, the word "person" includes corporations, partnerships, firms or associations, wherever the context so requires.
Section 5.7. Mandatory and Permissive. "Shall" and "will" and "agrees" are mandatory. "May" is perm1ss1ve.
Section 5.8. Term Includes Extensions. All references to the term of this Agreement or the Agreement Term shall include any extensions of such term.
Section 5.9. Successors and Assigns. All representations, covenants and warranties specifically set forth in this Agreement, by or on behalf of, or for the benefit of any or all of the parties hereto, shall be binding upon and inure to the benefit of such party, its successors and assigns.
Section 5.10. Modification. No modification or waiver of any provisions of this Agreement or its attachments shall be effective unless such waiver or modification is in writing, signed by all parties, and then shall be effective only for the period and on the condition, and for the specific instance for which given.
13 Section 5.11. Counterparts, This Agreement may be executed simultaneously and in several counterparts, each of which shall be deemed an original, but which together shall constitute one and the same instrument.
Section 5.12. Other Documents. The parties agree that they shall cooperate in good faith to accomplish the object of this Agreement and to that end, agree to execute and deliver such other and further instruments and documents as may be necessary and convenient to the fulfillment of these purposes.
Section 5.13. Partial Invalidity. If any term, covenant, condition or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provision • and/or provisions shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
Section 5.14. Controlling Law. The validity, interpretation and performance of this Agreement shall be controlled by and construed under the laws of the State of California.
Section 5.15. Time Is of the Essence. Time is of the essence of this Agreement and each covenant and term a condition herein.
Section 5.16. Authority. All parties to this Agreement warrant and represent that they have the power and authority to enter into this Agreement in the names, titles and capacities herein stated and on behalf of any entities, persons, estates or firms represented or purported to be represented by such entity(s), person(s), estate(s) or firm(s) and that all formal requirements necessary or required by any state and/or federal law in order to enter into this Agreement have been fully complied with. Further, by entering into this Agreement, neither party hereto shall have breached the terms nor conditions of any other contract or agreement to which such party is obligated, which such breach would have a material effect hereon.
Section 5.17. Document Preparation. This Agreement will not be construed against the party preparing it, but will be construed as if prepared by all parties.
Section 5.18. Advice of Legal Counsel. Each party acknowledges that it has reviewed this Agreement with its own legal counsel, and based upon the advice of that counsel, has freely entered into this Agreement.
Section 5.19. Estoppel Certificate. Within thirty (30) days following any written request which either party may make from time to time, and upon payment of a fee to the City to reimburse the City for its reasonable expenses associated herewith, the other party to this Agreement shall execute and deliver to the requesting party a statement certifying that:
(a) This Agreement is unmodified and in full force and effect, or if there have been modifications hereto, that this Agreement is in full force and effect as modified and stating the date and nature of such modifications; and
(b) There are not current uncured defaults under this Agreement or specifying the date, nature of any default and manner of cure.
This certificate may be executed by the Director.
Section 5.20. Attorneys' Fees and Costs. If any action at law or in equity, including an action for declaratory relief, is brought to enforce or interpret provisions of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and costs, which may be set by the Court in the same action 14 or in a separate action brought for that purpose, in addition to any other relief to which such party may be entitled.
Section 5.21. Consent/Subordination. Unless waived in writing by the City Attorney, Developer shall furnish proof satisfactory to the City, prior to approval of the Agreement that all persons possessing a legal interest in the property have consented to the recording of this Agreement. Unless waived in writing by the City Attorney, the City shall require subordination by all lenders of record as a condition precedent to the City approval of the Agreement. The City shall have no duty to subordinate its interest in this Agreement.
Section 5.22. Calculation of Time Periods. All calculation of time periods shall be based upon calendar days unless a different intent is clearly stated.
IN WITNESS WHEREOF, this Agreement was executed by the parties thereto on the dates set forth in the Preamble.
CITY:
CITY OF NEWMAN,
a municipal corporation
By: -------------- Name:
Title: City Manager
ATTEST:
By:----------
Name:
Title: City Clerk
DEVELOPER/PROPERTY OWNER:
GEORGE SOUZA, an individual
By:--------------
N ame: George Souza
Title: Property Owner
15 By:------------
Name: Marlene Souza
Title: Property Owner
EXHIBIT A
LEGAL DESCRIPTION OF SUBJECT PROPERTY
SOUZA COMMERCIAL CENTER
Real property situated in the City of Newman, County of Stanislaus, State of California, identified as Assessor's Parcel Numbers 026-016-015, 026-016-016, and 026-016-058, more particularly described as follows:
[Metes-and-bounds legal description to be inserted, prepared and certified by Developer's licensed surveyor or civil engineer of record.]
16 EXHIBITB
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (hereinafter "this Agreement") is entered into this __ day of _____ ~ 20_, by and between George Souza (hereinafter called "Owner") and--------~ (hereinafter "Assignee").
RECITALS
A. On _____ ~ 20 _, the City of Newman and Owner entered into that certain agreement entitled "Development Agreement," approved by Ordinance _____ (hereinafter "Agreement"), relative to the development known as the Souza Commercial Center (hereinafter "Subject Property").
B. Owner entered into a purchase and sale agreement whereby a portion of the Subject Property will be sold to Assignee, which portion of the Subject Property is identified and described in Exhibit A, attached hereto and incorporated herein by this reference (hereinafter the "Assigned Parcel(s)").
C. Owner desires to assign all of its interests, rights and obligations under the Agreement with respect to the Assigned Parcel(s).
D. Assignee desires to assume all Owner's rights and obligations under the Agreement with respect to the Assigned Parcel(s).
NOW, THEREFORE, Owner and Assignee hereby agree as follows:
1. Owner hereby assigns effective as of Owner's conveyance of the Assigned Parcel( s) to Assignee, all of the rights, interest, burdens and obligations of Owner under the Agreement with respect to the Assigned Parcel(s). Owner retains all the rights, interest, burdens and obligations under the Agreement with respect to all other property within the Subject Property owned thereby.
2. Assignee hereby assumes all of the burdens and obligations of Owner under the Agreement, and agrees to observe and fully perform all of the duties and obligations of Owner under the Agreement, and to be subject to all the terms and conditions thereof, with respect to the Assigned Parcel(s), it being the express intention of both Owner and Assignee that, upon the execution of this Agreement and conveyance of the Assigned Parcel(s) to Assignee, Assignee shall become substituted for Owner as the "Developer" under the Agreement with respect to the Assigned Parcel(s).
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 their respective heirs, successors and assigns.
IN WITNESS HEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
ASSIGNOR/OWNER:
By:--------------
Name:
Title:
17 ASSIGNEE:
By: _____________ _
Name:
Title:
EXHIBIT C
SPECIAL CONDITIONS AND REQUIREMENTS
1. Property Owners' Association. Developer shall establish a Property Owners' Association (POA) or other equivalent legal entity, prior to the issuance of the first certificate of occupancy, to provide for the long-term maintenance, repair, and replacement of all common areas, including but not limited to landscaping, parking lots, exterior lighting, signage, trash enclosures, shared access and circulation improvements, and the sound wall required under this Exhibit. The POA's governing documents, including a detailed maintenance plan and funding mechanism, shall be submitted for City review and approval as part of the Improvement Plan process, and annual compliance reports shall be submitted to the City to verify adherence to the approved maintenance plan.
2. Frontage and Off-Site Improvements. Developer shall dedicate, design, engineer, and construct all frontage improvements along State Route 33 (Highway 33) and the Mattos Drive extension, including sidewalks, curbs, gutters, traffic signals, and the Highway 33/Mattos Drive intersection, consistent with the Highway 33 Specific Plan and to CalTrans standards. Developer shall secure all necessary CalTrans encroachment permits and approvals prior to commencing construction of said improvements.
3. Sound Wall. Developer shall construct a sound wall a minimum of nine feet (9') tall, measured from final grade, along the back (west) property line adjacent to residentially zoned property, using durable materials compatible with the Project's architectural design, prior to issuance of the first certificate of occupancy for any building located adjacent to that property line.
4. Landscaping. Developer shall install landscaping consistent with the Highway 33 Specific Plan and the City of Newman Street Tree Plan, including Chinese Pistache street trees along the "N" Street (Highway 33) frontage and a minimum of one large canopy shade tree for every five parking spaces, evenly distributed throughout the parking areas.
5. Bicycle Parking. Developer shall provide a minimum of ten (10) bicycle parking spaces, with at least one secure bicycle rack located at each stand-alone building, in accordance with Municipal Code and ADA accessibility standards.
6. Environmental Compliance. Developer shall comply with all applicable measures set forth in the Mitigation Monitoring and Reporting Program adopted in connection with the CEQA document identified on the Reference Sheet and shall submit compliance reports to the City at the milestones specified therein.
7. Time of Compliance. Developer shall comply with all Public Works Standards and Specifications in place at the time the application is submitted to the City for approval. Developer shall also comply with all ordinances and policies in place at the time building permits are issued.
8. Incorporation of Conditions of Approval. Developer shall comply with all Conditions of Approval adopted by the Planning Commission in connection with Site Plan Review (SPR) No. 25-02, which conditions are incorporated herein by this reference and shall control over the City Laws in the order of priority established by Section 1.21.
9. Security for Incomplete Improvements Upon Assignment. As a condition of City consent to any assignment under Section 1.9, Developer or the assignee, as applicable, shall post security satisfactory to the City Engineer for the completion of any infrastructure or other improvement required under this Exhibit C that has not been completed and accepted by the City as of the date of the proposed assignment. 18 EXHIBITD
NOTICE OF TERMINATION
THIS NOTICE OF TERMINATION (hereinafter "this Notice") is given this __ day of 20_, by the City of Newman (hereinafter called "City") for the benefit of ________ _, (hereinafter "Owner").
1. On----~ 20_, the City of Newman and _________ entered into that certain agreement entitled "Development Agreement," approved by Ordinance _____ (hereinafter "Agreement"), relative to the development known as the Souza Commercial Center (hereinafter "Subject Property").
2. Owner has fully performed all its duties with respect to that portion of the Subject Property, which portion of the Subject Property is identified and described in Exhibit A, attached hereto and incorporated herein by this reference (hereinafter the "Released Property").
3. Pursuant to Section 4.1 of the Development Agreement, the Development Agreement is no longer in effect with respect to the Released Property.
CITY OF NEWMAN
By: -------------
Name:
Title:
[NOTE: SIGNATURE MUST BE NOTARIZED]
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