inability to perform. When the Claiming Party is able to resume performance of its obligations under this Agreement, the Claiming Party shall give the other Party prompt Notice to that effect.
1.44. Termination. Either Party may terminate this Agreement on at least five (5) Business Days’ prior Notice, in the event of Force Majeure which materially interf eres with such Party’s ability to perform its obligations under this Agreement and which (a) extends for more than 365 consecutive days, (b) extends for more than a total of 365 days in any consecutive 540-day period, or (c) is consistent with Section 2.6.2.3.
ARTICLE TWELVE. EVENTS OF DEFAULT AND TERMINATION
1.45. Termination. Unless terminated earlier pursuant to Section 1 1.4 or this Section 12 , this Agreement automatically terminates immediately following the last day of the Delivery Term.
1.46. Events of Default . An “Event of Default” means, with respect to a Party, the occurrence of any of the following:
1.46.1. With respect to either Party:
1.46.1.1. A Party becomes Bankrupt;
1.46.1.2. Except for an obligation to make payment when due, if there is a failure of a Party to perform any material covenant or obligation set forth in this Agreement (except to the extent such failure provides a separate termination right for the non-breaching Party or to the extent excused by Force Majeure), if such failure is not remedied within thirty (30) days after Notice th ereof from the non-breaching Party to the breaching Party;
1.46.1.3. A Party fails to make any payment due and owing under this Agreement, if such failure is not cured within ten (10) Business Days after Notice from the non-breaching Party to the breaching Party; or
1.46.1.4. Any representation or warranty made by a Party (a) is false or misleading in any material respect when made or (b) becomes false or misleading in any material respect during the Term.
1.46.2. With respect to Seller:
1.46.2.1. Seller fails to take all corrective actions spe cified in any Buyer Notice, within the time frame set forth in such Notice, that the Facility is out of compliance with any term of this Agreement; provided that if such corrective action falls under a specific termination right under Section 12.2.2, then the time frame, if any, set forth for such right shall apply;
CITY COUNCIL ORDINANCE NO.
DEVELOPMENT AGREEMENT DRC2021-00175 – CITY OF RANCHO CUCAMONGA January 5, 2022
1.46.2.2. The Facility has not achieved Commercial Operation by the expected Commercial Operation Date s pecified in Section 2.6.1 and Seller has not elected to pay daily delay damages pursuant to Section 2.6.4;
1.46.2.3. Subject to Section 11, Seller delivers less than eighty percent (80%) of the applicable Contract Quantity from the Facility to Buyer for a period of two (2) consecutive Contract Years;
1.46.2.4. Seller fails to maintain its status as an ERR as set forth in S ection 4.5 of the Agreement;
1.46.2.5. Seller abandons the Facility;
1.46.2.6. Seller installs generating equipment at the Facility that exceeds the Contract Capacity and such excess generating capacity is not removed within five (5) Business Days after Notice from Buyer;
1.46.2.7. Seller delivers or attempts to deliver to the Delivery Point for sale under this Agreement product that was not generated by the Facility;
1.46.2.8. Seller fails to install any of the equipment or devices necessary for the Facility to satisfy the Contract Capacity set forth in Section 3.1;
1.46.2.9. An unauthorized assignment of the Agreement, as set forth in Section 15;
1.46.2.10. Seller fails to reimburse Buyer any amounts due under this Agreement;
1.46.2.11. Seller breaches the requirements in Section 6.1 2 regarding incentives; or
1.46.2.12. Seller fails to maintain the Collateral Requirement set forth in Section
3.9. 1.46.2.13. The annualized customer load associated with the Facility pursuant to Section 17.76.020 of Chapter 17.76 of (Alternative Energy Systems and Facilities) of Article IV (Site Development Provisions) of Title 17 (Development Code) of the Rancho Cucamonga Municipal Code is less than fifty percent (50%) of the Contract Quantity, as measured over a Contract Year.
1.47. Declaration of an Event of Default . If an Even t of Default has occurred, the non- defaulting Party shall have the right to: (a) send Notice, designating a day, no earlier
CITY COUNCIL ORDINANCE NO.
DEVELOPMENT AGREEMENT DRC2021-00175 – CITY OF RANCHO CUCAMONGA January 5, 2022
than five (5) days after such Notice and no later than twenty (20) days after such Notice, as an early termination date of this Agreement (“Early Termination Date”); (b) accelerate all amounts owing between the Parties; (c) terminate this Agreement and end the Delivery Term effective as of the Early Termination Date; (d) collect any Settlement Amount under Section 12.5; and (e) if the defaulting party is the Seller and Buyer terminates the Agreement prior to the start of the Commercial Operation Date, Buyer shall have the right to retain the entire Reservation Deposit.
1.48. Suspension of Performance
. If an Event of Default shall have occur red, the non- defaulting Party has the right to immediately suspend performance under this Agreement and pursue all remedies available at Law or in equity against the defaulting Party (including monetary damages), except to the extent that such remedies are limited by the terms of this Agreement.
1.49. Calculation of Settlement Amount.
1.49.1. If either Party exercises a termination right under Section 12.3 after the Commercial Operation Date, the non- defaulting Party shall calculate a settlement amount (“Settlement Amoun t”) equal to the amount of the non- defaulting Party’s aggregate Losses and Costs less any Gains, determined as of the Early Termination Date. Prior to the Commercial Operation Date, the Settlement Amount shall be Zero dollars ($0).
1.49.2. If the non- defaulting Party’s aggregate Gains exceed its aggregate Losses and Costs, if any, determined as of the Early Termination Date, the Settlement Amount shall be Zero dollars ($0).
1.49.3. The Buyer shall not have to enter into replacement transactions to establish a Settlement Amount.
1.49.4. Buyer shall have the right to draw upon the Collateral Requirement to collect any Settlement Amount owed to Buyer.
1.50. Rights and Remedies Are Cumulative. The rights and remedies of the Parties pursuant to this Section 12 shall be cumulative and in a ddition to the rights of the Parties otherwise provided in this Agreement.
1.51. Duty to Mitigate . Buyer and Seller shall each have a duty to mitigate damages pursuant to this Agreement, and each shall use reasonable efforts to minimize any damages it may incur as a result of the other Party’s non- performance of this Agreement, including with respect to termination of this Agreement.
CITY COUNCIL ORDINANCE NO.
DEVELOPMENT AGREEMENT DRC2021-00175 – CITY OF RANCHO CUCAMONGA January 5, 2022
ARTICLE THIRTEEN. GOVERNMENTAL CHARGES
1.52. Governmental Charges. Seller shall pay or cause to be paid all taxes imposed by any Governmental Authority (“Governmental Charges”) on or with respect to the Product or the Transaction arising at the Delivery Point, including, but not limited to, ad valorem taxes and other taxes attributable to the Project, land, land rights or interests in land for the Project. Buyer shall pay or cause to be paid all Governmental Charges on or with respect to the Product or the Transaction from the Delivery Point. In the event Seller is required by Law or regulation to remit or pay Governmental Charges which are Buy er’s responsibility hereunder, Buyer shall reimburse Seller for such Governmental Charges within thirty (30) days of Notice by Seller. If Buyer is required by Law or regulation to remit or pay Governmental Charges which are Seller’s responsibility hereunder, Buyer may deduct such amounts from payments to Seller with respect to payments under the Agreement; if Buyer elects not to deduct such amounts from Seller’s payments, Seller shall reimburse Buyer for such amounts within thirty (30) days of Notice from Buyer. Nothing shall obligate or cause a Party to pay or be liable to pay any Governmental Charges for which it is exempt under the Law.
A Party that is exempt at any time and for any reason from one or more Governmental Charges bears the risk that such exemption shall be lost or the benefit of such exemption reduced; and thus, in the event a Party’s exemption is lost or reduced, each Party’s responsibility with respect to such Governmental Charge shall be in accordance with the first four sentences of this Section.
ARTICLE FOURTEEN. RELEASE OF INFORMATION AND RECORDING
CONVERSATION
1.53. Release of Information. Seller authorizes Buyer to release to the FERC, CEC, CAISO, CPUC, other Governmental Authority, and/or media outlet information regarding the Facility, including the Seller’s name and location, and the size, location and operational characteristics of the Facility, the Term, the ERR type, photographs of the project, the Commercial Operation Date, greenhouse gas emissio ns data, and the net power rating of the Facility, as requested from time to time pursuant to the CEC’s, CPUC’s or applicable Governmental Authority’s rules and regulations.
1.54. Public Announcements . Seller shall make no public announcement regarding any aspect of this Agreement or the role of Seller in regards to the development or operation of the Project without the prior written consent of Buyer, which consent shall not be unreasonably withheld. Any public announcement by Seller must comply with California Business and Professions Code § 17580.5 and with the Guides for the Use of Environmental Marketing Claims, published by the Federal Trade Commission, as
it may be updated from time to time.
CITY COUNCIL ORDINANCE NO.
DEVELOPMENT AGREEMENT DRC2021-00175 – CITY OF RANCHO CUCAMONGA January 5, 2022
ARTICLE FIFTEEN. ASSIGNMENT
1.55. General Assignment. Except as provided in Sections 15.2 and 15.3, Seller may not assign this Agreement or its rights hereunder without the prior written consent of the Buyer, which consent shall not be unreasonably withheld or delayed so long as among other things (a) the a ssignee assumes the Seller’s payment and performance obligations under this Agreement, (b) the assignee agrees in writing to be bound by the terms and conditions hereof, (c) Seller delivers evidence satisfactory to Buyer of the proposed assignee’s technica l and financial capability to meet or exceed Seller’s obligations hereunder and (d) the Seller delivers such tax and enforceability assurance as Buyer may reasonably request.
1.56. Assignment to Financing Providers. Seller may
assign this Agreement as collateral for
any financing or refinancing of the Project (including any tax equity or lease financing) with the prior written consent of the Buyer, which consent shall not be unreasonably withheld or delayed. The Parties agree that, the consent provided to Buyer in accordance with this Section 15
.2 shall be in a form substantially similar to the Form of Financing Consent attached hereto as Appendix H ; provided that (a) Buyer shall not be required to consent to any additional terms or conditions beyond those contained in Appendix H , including extension of any cure periods or additional remedies for financing providers, and (b) Seller shall be responsible at Buyer’s request for Buyer’s reasonable costs and attorneys’ fees associated with the review, negotiation, execution and delivery of documents in connection with such assignment.
1.57. Notice of Change in Control. Except in connection with public market transactions of the equity interests or capital stock of Seller or Seller’s Affiliates, Seller shall provide Buyer notice of any direct change of control of Seller (whether voluntary or by operation of Law).
ARTICLE SIXTEEN. GOVERNING LAW
This agreement and the rights and duties of the parties hereunder shall be governed by and construed, enforced, and performed in accordance with the laws of the State of California, without regard to principles of conflicts of law. To the extent enforceable at such time, each party waives its respective right to any jury trial with respect to any litigation arising under or in connection with this agreement.
ARTICLE SEVENTEEN. DISPUTE RESOLUTION
1.58. Intent of the Parties. The sole procedure to resolve any claim arising out of or relating to this Agreement is the dispute resolution procedure set forth in this Section 17 , except that either Party may seek an injunction in Superior Court in San Bernardino County, California if such action is necessary to prevent irreparable harm, in which case both Parties nonetheless will continue to pursue resolution of all other aspects of the dispute by means of this procedure.
CITY COUNCIL ORDINANCE NO.
DEVELOPMENT AGREEMENT DRC2021-00175 – CITY OF RANCHO CUCAMONGA January 5, 2022
1.59. Management Negotiations.
1.59.1. The Parties will attempt in good faith to resolve any controversy or claim arising out of or relating to this Agreement by prompt negotiations between each Party’s authorized representative, or such other person designated in writing as a representative of the Party (each a “Manager”). Either Manager may request a meeting, to be held in person or telephonically, to initiate negotiations to be held within ten (10) Business Days of the other Party’s receipt of such request, at a mutually agreed time and place.
1.59.2. All communication and writing exchanged between the Parties in connection with these negotiations shall be deemed inadmissible as evidence such that it cannot be used or referred to in any subsequent judicial or arbitration process between the Parties, whether with respect to this dispute or any other.
1.59.3. If the matter is not resolved within forty -five (45) days of commencement of negotiations under Section 17.2.1, or if the Party receiving the written request to meet refuses or does not meet within the ten (10) Business Day period specified in Section 1 7.2.1, either Party may initiate arbitration of the controve rsy or claim according to the terms of Section 17.3.
1.60. Arbitration Initiation. If the dispute cannot be resolved by negotiation as set forth in Section 17.2 above, then the Parties shall resolve such controversy through arbitration (“Arbitration”). The Arbitration shall be adjudicated by one retired judge or justice from the JAMS panel. The Arbitration shall take place in San Bernardino County, California, and shall be administered by and in accordance with JAMS’ Commercial Arbitration Rules. If the Parties cannot mutually agree on the arbitrator who will adjudicate the dispute, then JAMS shall provide the Parties with an arbitrator pursuant to its then -applicable Commercial Arbitration Rules. The arbitrator shall have no affiliation with, financial or other interest in, or prior employment with either Party and shall be knowledgeable in the field of the dispute. Either Party may initiate Arbitration by filing with the JAMS a notice of intent to arbitrate at any time following the unsuccessful conclusion of the management negotiations provided for in Section
17.2. ARTICLE EIGHTEEN. MISCELLANEOUS
1.61. Severability. If any provision in this Agreement is determined to be invalid, void or unenforceable by any court having jurisdiction, such determination shall not invalidate, void, or make unenforceable any other provision, agreement or covenant of this Agreement. Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.
CITY COUNCIL ORDINANCE NO.
DEVELOPMENT AGREEMENT DRC2021-00175 – CITY OF RANCHO CUCAMONGA January 5, 2022
1.62. Counterparts. This Agreement may be executed in one or more counterparts each of which shall be deemed an original and all of which shall be deemed one and the same Agreement. Delivery of an executed counterpart of this Agreement by facsimile or PDF transmission will be deemed as effective as delivery of an originally executed counterpart. Each Party delivering an executed counterpart of this Agreement by facsimile or PDF tr ansmission shall also deliver an originally executed counterpart, but the failure of any Party to deliver an originally executed counterpart of this Agreement shall not affect the validity or effectiveness of this Agreement.
1.63. General. No amendment to or modification of this Agreement shall be enforceable unless reduced to writing and executed by both Parties. This Agreement shall not impart any rights enforceable by any third party other than a permitted successor or assignee bound to this Agreement. Waiver by a Party of any default by the other Party shall not be construed as a waiver of any other default. The term “including” when used in this Agreement shall be by way of example only and shall not be considered in any way to be in limitation. The headings used herein are for convenience and reference purposes only.
1.64. Interpretation. Whenever this Agreement specifically refers to any Law, tariff, Governmental Authority, regional reliability council, Transmission/Distribution Owner, or credit rating agency, the Parties hereby agree that the references also refers to any successor to such Law, tariff or organization.
1.65. Construction. The Agreement will not be construed against any Party as a result of the preparation, substitution, or other event of negotia tion, drafting or execution thereof.
1.66. Forward Contract. The Parties acknowledge and agree that this Agreement constitutes a “forward contract” within the meaning of the U.S. Bankruptcy Code, and Buyer and Seller are “forward contract merchants” within the meaning of the U.S. Bankruptcy Code. Each Party further agrees that, for all purposes of this Agreement, each Party waives and agrees not to assert the applicability of the provisions of 11 U.S.C. § 366 in any Bankruptcy proceeding wherein such Party is a debtor. In any such proceeding, each Party further waives the right to assert that the other Party is a provider of last resort to the extent such term relates to 11 U.S.C. §366 or another provision of 11 U.S.C. § 101-1532.
1.67. Change in Electric Market Design . If a change in the CAISO Tariff renders this Agreement or any provisions hereof incapable of being performed or administered, then any Party may request th at Buyer and Seller enter into negotiations to make the minimum changes to this Agreement necessary to make this Agreement capable of being performed and administered, while attempting to preserve to the maximum extent possible the benefits, burdens, and obligations set forth in this Agreement as of the Execution
Date. Upon delivery of such a request, Buyer and Seller shall engage in
CITY COUNCIL ORDINANCE NO.
DEVELOPMENT AGREEMENT DRC2021-00175 – CITY OF RANCHO CUCAMONGA January 5, 2022
such negotiations in good faith. If Buyer and Seller are unable, within sixty (60) days after delivery of such request, to ag ree upon changes to this Agreement or to resolve issues relating to changes to this Agreement, then any Party may submit issues pertaining to changes to this Agreement to the dispute resolution process set forth in Article 17. Notwithstanding the foregoing, (i) a change in cost shall not in and of itself be deemed to render this Agreement or any of the provisions hereof incapable of being performed or administered, and (ii) all of the unaffected provisions of this Agreement shall remain in full force and ef fect during any period of such negotiation or dispute resolution.
1.68. Further Assurances. Each of the Parties hereto agrees to provide such information, execute and deliver any instruments and documents and to take such other actions as may be necessary or reasonably requested by the other Party which are not inconsistent with the provisions of this Agreement and which do not involve the assumptions of obligations other than those provided for in this Agreement, to give full effect to this Agreement and to carry out the intent of this Agreement.
IN WITNESS WHEREOF, each Party has caused this Agreement to be duly executed by its authorized representative as of the date of last signature provided below.
CITY OF RANCHO CUCAMONGA
(Seller) (Buyer)
(Signature) (Signature)
(Type/Print Name) (Type/Print Name)
(Title) (Title)
(Date) (Date)
CITY COUNCIL ORDINANCE NO.
DEVELOPMENT AGREEMENT DRC2021-00175 – CITY OF RANCHO CUCAMONGA January 5, 2022
Appendix A – Definitions
“Affiliate” means, with respect to a Party, any entity that, directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with that Party. “Arbitration" has the meaning set forth in Section 17.
“As-Available Facility” means a generating facility that is powered by one of the following sources, except for a de minimis amount of Energy from other sources: (a) wind, (b) solar energy, (c) hydroelectric potential derived from small conduit water distribution facilities that do not have storage capability, or (d) other variable sources of energy that are contingent upon natural forces other than geothermal.
“Available Capacity” means the rated alternating current (AC) generating capacity of the Facility, expressed in whole kilowatts, that is available to generate Product. “Bankrupt” means with respect to any entity, such entity:
(a) Files a petition or otherwise commences, authorizes or acquiesces in the commencement of a proceeding or cause of action under any bankruptcy, insolvency, reorganization or similar law, or has any such petition filed or commenced against it;
(b) Makes an assignment or any general arrangement for the benefit of creditors; (c) Otherwise becomes bankrupt or insolvent (however evidenced); (d) Has a liquidator, administrator, receiver, trustee, conservator or similar official appointed with respect to such entity or any substantial portion of its property or assets; or (e) Is generally unable to pay its debts as they fall due. “Baseload Facility” means a generating facility that does not qualify as an As-Available Facility.
“Business Day” means any day except a Saturday, Sunday, a Federal Reserve Bank holiday, or the Friday following Thanksgiving during the hours of 8:00 a.m. and 5:00 p.m. local time for the relevant Party’s principal place of business where the relevant Party in each instance shall be the Party from whom the notice, payment or delivery is being sent. “CAISO” means the California Independent System Operator Corporation or any successor entity performing similar functions.
“CAISO Grid” means the system of transmission lines and associated facilities that have been placed under the CAISO’s operational control.
CITY COUNCIL ORDINANCE NO.
DEVELOPMENT AGREEMENT DRC2021-00175 – CITY OF RANCHO CUCAMONGA January 5, 2022
“CAISO Tariff” means the CAISO FERC Electric Tariff, Fifth Replacement Volume No. 1, as amended from time to time.
“California Renewables Portfolio Standard” means the renewable energy program and policies codified in California Public Utilities Code Sections 399.11 through 399.33 and California Public Resources Code Sections 25740 through 25751, as such provisions may be amended or supplemented from time to time.
“Capacity Attributes” means any current or future defined characteristic, certificate, tag, credit, or ancillary service attribute, whether general in nature or specific as to the location or any other attribute of the Project, intended to value any aspect of the capacity of the Project to produce Energy or ancillary services, including, but not limited to, any accounting construct so that the full Contract Capacity of the Project may be counted toward a Resource Adequacy Requirement or any other measure by the CPUC, the CAISO, the FERC, or any other entity invested with the authority under federal or state Law, to require Buyer to procure, or to procure at Buyer’s expense, Resource Adequacy Benefits or other such products.
“CEC” means the California Energy Commission or its successor agency. “CEC Certification” means certification by the CEC that the Facility is an ERR and that all Energy produced by the Facility qualifies as generation from an ERR. “CEC Pre-Certification” means provisional certification of the proposed Facility as an ERR by the CEC upon submission by a facility of a complete application and required supplemental information.
“Check Meter” means the Buyer revenue-quality meter section(s) or meter(s), which Buyer may require at its discretion, and which will include those devices normally supplied by Buyer or Seller under the applicable utility electric service requirements. “City Manager” means the City Manager of the City of Rancho Cucamonga. “Claiming Party” has the meaning set forth in Section 10.2. “Commercial Operation” means the Contract Capacity has been installed and the Facility is operating and able to produce and deliver the Product to Buyer pursuant to the terms of this Agreement.
“Commercial Operation Date” means the date on which the Facility achieves Commercial Operation.
“Contract Capacity” means the amount of electric energy generating capacity, set forth in Section 3.1, that Seller commits to install at the Site. “Contract Price” has the meaning set forth in Section 3.6.
CITY COUNCIL ORDINANCE NO.
DEVELOPMENT AGREEMENT DRC2021-00175 – CITY OF RANCHO CUCAMONGA January 5, 2022
“Contract Quantity” has the meaning set forth in Section 3.2. “Contract Year” means a period of twelve (12) consecutive months with the first Contract Year commencing on the Commercial Operation Date and each subsequent Contract Year commencing on the anniversary of the Commercial Operation Date.
“Costs” means (a) brokerage fees, commissions and other similar third-party transaction costs and expenses reasonably incurred either in terminating any arrangement pursuant to which it has hedged its obligations or in entering into new arrangements which replace the Transaction; and (b) all reasonable attorneys’ fees and expenses incurred in connection with the termination of the Transaction. “CPUC” means the California Public Utilities Commission, or successor entity. “Credit Rating” means, with respect to any entity, (a) the rating then assigned to such entity’s unsecured senior long-term debt obligations (not supported by third party credit enhancements), or (b) if such entity does not have a rating for its unsecured senior long-term debt obligations, then the rating assigned to such entity as an issuer rating by S&P and/or Moody’s. If the entity is rated by both S&P and Moody’s and such ratings are not equivalent, the lower of the two ratings shall determine the Credit Rating. If the entity is rated by either S&P or Moody’s, but not both, then the available rating shall determine the Credit Rating.
“Current Inverters” means devices used to convert DC electric energy to alternating current electric energy.
“Curtailment Order” means any instruction from Buyer to Seller to reduce the delivery of Energy from the Facility for any reason other than as set forth in Sections 3.6.3 (a) or (b). “DC” means direct current.
“DC Collection System” means the DC equipment, cables, components, devices and materials that interconnect the Photovoltaic Modules with the Current Inverters. “Delivered Energy” means all Energy produced from the Facility and delivered by Seller to the Delivery Point, expressed in kWh, as recorded by the meter specified in Section 6.2.1 or the Check Meter, as applicable.
“Delivery Point” has the meaning set forth in Section 2.5. “Delivery Term” has the meaning set forth in Section 3.5. “Early Termination Date” has the meaning set forth in Section 12.3. “Eligible Renewable Energy Resource” or “ERR” has the meaning set forth in Public Utilities Code Sections 399.12 or Section 399.16 and California Public Resources Code Section 25741, as these code provision may be amended or supplemented from time to time.
CITY COUNCIL ORDINANCE NO.
DEVELOPMENT AGREEMENT DRC2021-00175 – CITY OF RANCHO CUCAMONGA January 5, 2022
“Emergency” means (a) an actual or imminent condition or situation which jeopardizes the integrity of the electric system or the integrity of any other systems to which the electric system is connected or any condition so defined and declared by the CAISO; or (b) an emergency condition as defined under an Interconnection Agreement and any abnormal interconnection or system condition that requires automatic or immediate manual action to prevent or limit loss of load or generation supply, that could adversely affect the reliability of the electric system or generation supply, that could adversely affect the reliability of any interconnected system, or that could otherwise pose a threat to public safety.
“Energy” means three-phase, 60-cycle alternating current electric energy measured in kWh, net of Station Use. For purposes of the definition of “Green Attributes,” the word “energy” shall have the meaning set forth in this definition.
“Execution Date” means the latest signature date found at the end of the Agreement. “Facility” has the meaning set forth in Section 2. The terms “Facility” or “Project” as used in this Agreement are interchangeable.
“FERC” means the Federal Energy Regulatory Commission or any successor government agency.
“Force Majeure” means an event or circumstance which prevents one Party from performing its obligations under the Agreement, which event or circumstance was not anticipated as of the Execution Date, which is not within the reasonable control of, or the result of the negligence of, the Claiming Party, and which, by the exercise of due diligence, the Claiming Party is unable to overcome or avoid or cause to be avoided, including war, riot, civil disturbance or disobedience, terrorism, sabotage, strike or labor dispute. Force Majeure does not include: (a) the lack of wind, sun, or other fuel source of an inherently intermittent nature; (b) reductions in generation from the Facility resulting from ordinary wear and tear, deferred maintenance or operator error; or (c) any delay in providing, or cancellation of, interconnection service by a Transmission/Distribution Owner or the CAISO, except to the extent such delay or cancellation is the result of a Force Majeure claimed by the Transmission/Distribution Owner or the CAISO. Force Majeure may include delays in performance or inability to perform or comply with the terms and conditions of this Agreement due to delays in obtaining necessary equipment, labor, or materials or other issues caused by or attributable to pandemics or epidemics, including the disease designated COVID-19 or the related virus designated SARS-CoV-2 or any mutations thereof (collectively, “COVID-19”), if the elements of Force Majeure defined in the first sentence hereof (other than the requirement that the event or circumstance was not anticipated as of the date the Agreement was agreed to) have been satisfied; provided, however, that the general existence of COVID-19 shall not be sufficient to prove the existence of a Force Majeure absent a showing of other facts and circumstances which in the aggregate establish that a Force Majeure as defined in the first sentence hereof (other than the requirement that the event or circumstance was not anticipated as of the date the Agreement was agreed to) has occurred.
CITY COUNCIL ORDINANCE NO.
DEVELOPMENT AGREEMENT DRC2021-00175 – CITY OF RANCHO CUCAMONGA January 5, 2022
“Gains” means with respect to any Party, an amount equal to the present value of the economic benefit to it, if any (exclusive of Costs), resulting from the termination of the Transaction, determined in a commercially reasonable manner, subject to Section 12.5. Factors used in determining economic benefit may include, without limitation, reference to information either available to it internally or supplied by one or more third parties, including, without limitation, quotations (either firm or indicative) of relevant rates, prices, yields, yield curves, volatilities, spreads or other relevant market data in the relevant markets, market price referent, market prices for a comparable transaction, forward price curves based on economic analysis of the relevant markets, settlement prices for a comparable transaction at liquid trading platforms (e.g., NYMEX), all of which should be calculated for the remaining Delivery Term to determine the value of the Product. “Governmental Authority” means any federal, state, local or municipal government, governmental department, commission, board, bureau, agency, or instrumentality, or any judicial, regulatory or administrative body, having jurisdiction as to the matter in question. “Governmental Charges” has the meaning set forth in Section 13.1. “Green Attributes” means any and all credits, benefits, emissions reductions, offsets, and allowances, howsoever entitled, attributable to the generation from the Project, and its avoided emission of pollutants. Green Attributes include but are not limited to Renewable Energy Credits, as well as: (1) any avoided emission of pollutants to the air, soil or water such as sulfur oxides (SOx), nitrogen oxides (NOx), carbon monoxide (CO) and other pollutants; (2) any avoided emissions of carbon dioxide (CO2), methane (CH4), nitrous oxide, hydrofluorocarbons, perfluorocarbons, sulfur hexafluoride and other greenhouse gases (GHGs) that have been determined by the United Nations Intergovernmental Panel on Climate Change, or otherwise by law, to contribute to the actual or potential threat of altering the Earth’s climate by trapping heat in the atmosphere; (3) the reporting rights to these avoided emissions, such as Green Tag Reporting Rights. Green Tag Reporting Rights are the right of a Green Tag Purchaser to report the ownership of accumulated Green Tags in compliance with federal or state law, if applicable, and to a federal or state agency or any other party at the Green Tag Purchaser’s discretion, and include without limitation those Green Tag Reporting Rights accruing under Section 1605(b) of The Energy Policy Act of 1992 and any present or future federal, state, or local law, regulation or bill, and international or foreign emissions trading program. Green Tags are accumulated on a MWh basis and one Green Tag represents the Green Attributes associated with one (1) MWh of Energy. Green Attributes do not include (i) any energy, capacity, reliability or other power attributes from the Project, (ii) production tax credits associated with the construction or operation of the Project and other financial incentives in the form of credits, reductions, or allowances associated with the project that are applicable to a state or federal income taxation obligation, (iii) fuel- related subsidies or “tipping fees” that may be paid to Seller to accept certain fuels, or local subsidies received by the generator for the destruction of particular preexisting pollutants or the promotion of local environmental benefits, or (iv) emission reduction credits encumbered or used by the Project for compliance with local, state, or federal operating and/or air quality permits. If the Project is a biomass or biogas facility and Seller receives any tradable Green Attributes based on the greenhouse gas reduction benefits or other emission offsets attributed to its fuel usage, it shall provide Buyer with
CITY COUNCIL ORDINANCE NO.
DEVELOPMENT AGREEMENT DRC2021-00175 – CITY OF RANCHO CUCAMONGA January 5, 2022
sufficient Green Attributes to ensure that there are zero net emissions associated with the production of electricity from the Project.
“Interconnection Agreement” means the small generator interconnection agreement entered into separately between Seller, Transmission/Distribution Owner, and CAISO (as appropriate) obtained by Seller pursuant to Transmission/Distribution Owner’s Wholesale Distribution Tariff. “Interconnection Facilities” has the meaning set forth in the tariff applicable to the Seller’s Interconnection Agreement.
“Interconnection Point” has the meaning set forth in Section 2.3. “Interest Rate” means the rate per annum equal to the “Monthly” Federal Funds Rate (as reset on a monthly basis based on the latest month for which such rate is available) as reported in Federal Reserve Bank Publication H.15-519, or its successor publication. “JAMS” means JAMS, Inc. or its successor entity, a judicial arbitration and mediation service. “kW” means kilowatt.
“kWh” means kilowatt-hour.
“kWPDC” means peak DC power.
“Law” means any statute, law, treaty, rule, regulation, ordinance, code, permit, enactment, injunction, order, writ, decision, authorization, judgment, decree or other legal or regulatory determination or restriction by a court or Governmental Authority of competent jurisdiction, including any of the foregoing that are enacted, amended, or issued after the Execution Date, and which becomes effective during the Delivery Term; or any binding interpretation of the foregoing. “Letter of Credit” means an irrevocable, non-transferable standby letter of credit issued either by a U.S. commercial bank or a foreign bank with a U.S. branch office with a Credit Rating of at least “A-” by S&P and “A3” by Moody’s (without a “credit watch”, “negative outlook” or other rating decline alert if its Credit Rating is “A-” by S&P or “A3” by Moody’s). The Letter of Credit must be substantially in the form as contained in Appendix G to this Agreement; provided that if the Letter of Credit is issued by a branch of a foreign bank, Buyer may require changes to such form. “Losses” means, with respect to any Party, an amount equal to the present value of the economic loss to it, if any (exclusive of Costs), resulting from the termination of the Transaction, determined in a commercially reasonable manner, subject to Section 12.5. Factors used in determining the loss of economic benefit may include, without limitation, reference to information either available to it internally or supplied by one or more third parties including, without limitation, quotations (either firm or indicative) of relevant rates, prices, yields, yield curves, volatilities, spreads or other relevant market data in the relevant markets, market price referent, market prices for a comparable transaction, forward price curves based on economic analysis of the relevant markets, settlement prices for a
CITY COUNCIL ORDINANCE NO.
DEVELOPMENT AGREEMENT DRC2021-00175 – CITY OF RANCHO CUCAMONGA January 5, 2022
comparable transaction at liquid trading platforms (e.g. NYMEX), all of which should be calculated for the remaining term of the Transaction to determine the value of the Product. “Manager” has the meaning set forth in Section 17.2.
“Mechanical Completion” means that all equipment and systems that are necessary to generate the effective capacity of the Facility are installed. The Facility is mechanically, electrically, and structurally constructed with all control systems installed and connected. The Facility is functionally complete to the extent necessary to begin commissioning and testing of the Facility, though commissioning and testing need not have commenced.”
“MW” means megawatt (AC).
“MWh” means megawatt-hour.
“Notice,” unless otherwise specified in the Agreement, means written communications by a Party to be delivered by hand delivery, United States mail, overnight courier service, facsimile or electronic messaging (e-mail).
“Party” means the Buyer or Seller individually, and “Parties” means both collectively. For purposes of Section 16 (Governing Law) the word “party” or “parties” shall have the meaning set forth in this definition.
“Phasing Plan” means the plan submitted by Seller to the City of Rancho Cucamonga specifying the phases of the Project and the Contract Capacity associated with each Phase, and further, consistent with the requirements of Section 17.76.020 of Chapter 17.76 of (Alternative Energy Systems and Facilities) of Article IV (Site Development Provisions) of Title 17 (Development Code) of the Rancho Cucamonga Municipal Code.
“Phasing Plan Transition Event” means the occurrence of an event that transitions the Facility from one Phase to a different Phase as specified in the Phasing Plan. “Photovoltaic Module” means the individual module or component that produces DC electric energy from sun light.
“Photovoltaic Module DC Rating” means, for each Photovoltaic Module installed or to be installed at the Site, the number (expressed in kWPDC) stated on the nameplate affixed thereto representing the manufacturer’s maximum (at “peak” sunlight) DC power rating at the standard test condition (“Pmp” or Power maximum at peak).
“Product” means all Energy produced by the Facility throughout the Delivery Term, net of Station Use and electrical losses from the Facility to the Delivery Point; all Green Attributes; all Capacity Attributes, if any; and all Resource Adequacy Benefits, if any; generated by, associated with or attributable to the Facility throughout the Delivery Term.
CITY COUNCIL ORDINANCE NO.
DEVELOPMENT AGREEMENT DRC2021-00175 – CITY OF RANCHO CUCAMONGA January 5, 2022
“Project” has the meaning set forth in Section 2. The terms “Facility” and “Project” as used in this Agreement are interchangeable.
“Prudent Electrical Practices” means those practices, methods and acts that would be implemented and followed by prudent operators of electric energy generating facilities in the Western United States, similar to the Facility, during the relevant time period, which practices, methods and acts, in the exercise of prudent and responsible professional judgment in the light of the facts known at the time the decision was made, could reasonably have been expected to accomplish the desired result consistent with good business practices, reliability and safety. Prudent Electrical Practices shall include, at a minimum, those professionally responsible practices, methods and acts described in the preceding sentence that comply with manufacturers’ warranties, restrictions in this Agreement, and the requirements of Governmental Authorities, WECC standards, the CAISO and Laws. Prudent Electrical Practices also includes taking reasonable steps to ensure that:
(a) Equipment, materials, resources, and supplies, including spare parts inventories, are available to meet the Facility’s needs;
(b) Sufficient operating personnel are available at all times and are adequately experienced and trained and licensed as necessary to operate the Facility properly and efficiently, and are capable of responding to reasonably foreseeable emergency conditions at the Facility and Emergencies whether caused by events on or off the Site;
(c) Preventive, routine, and non-routine maintenance and repairs are performed on a basis that ensures reliable, long term and safe operation of the Facility, and are performed by knowledgeable, trained, and experienced personnel utilizing proper equipment and tools; (d) Appropriate monitoring and testing are performed to ensure equipment is functioning as designed;
(e) Equipment is not operated in a reckless manner, in violation of manufacturer’s guidelines or in a manner unsafe to workers, the general public, or the Transmission/Distribution Owner’s electric system or contrary to environmental laws, permits or regulations or without regard to defined limitations such as, flood conditions, safety inspection requirements, operating voltage, current, volt ampere reactive (VAR) loading, frequency, rotational speed, polarity, synchronization, and control system limits; and
(f) Equipment and components are designed and manufactured to meet or exceed the standard of durability that is generally used for electric energy generating facilities operating in the Western United States and will function properly over the full range of ambient temperature and weather conditions reasonably expected to occur at the Site and under both normal and emergency conditions.
“Renewable Energy Credit” has the meaning set forth in Public Utilities Code Section 399.12(h), as may be amended from time to time or as further defined or supplemented by Law.
CITY COUNCIL ORDINANCE NO.
DEVELOPMENT AGREEMENT DRC2021-00175 – CITY OF RANCHO CUCAMONGA January 5, 2022
“Reservation Deposit” means the deposit submitted by Seller to Buyer at the time Seller submitted its application for an Industrial Zoning District Renewable PPA contract, which amount shall equal four dollars ($4.00) for each kilowatt of proposed alternating current (AC) generator capacity. Buyer shall return the Reservation Deposit to Seller once the Project achieves Commercial Operation by crediting Seller the full amount of the Reservation Deposit on Buyer’s first payment for delivered Product. Buyer shall retain the full amount of the Reservation Deposit in the event the Project does not achieve Commercial Operation by the Commercial Operation Date. “Resource Adequacy Benefits” means the rights and privileges attached to the Facility that satisfy any entity’s resource adequacy obligations, as those obligations are set forth in any Resource Adequacy Rulings and shall include any local, zonal, or otherwise locational attributes associated with the Facility.
“Resource Adequacy Requirements” has the meaning set forth in Section 4.4.1. “Resource Adequacy Rulings” means any other resource adequacy laws, rules or regulations enacted, adopted or promulgated by any applicable Governmental Authority, as such decisions, rulings, Laws, rules or regulations may be amended or modified from time-to-time during the Delivery Term.
“Restricted Period” has the meaning set forth in Section 12.8.1. “Settlement Amount” has the meaning set forth in Section 12.5. “Site” means the real property on which the Facility is, or will be, located, as further described in Appendix D.
“Site Control” means the Seller: (a) owns the Site, (b) leases the Site, (c) is the holder of a right-of-way grant or similar instrument with respect to the Site, or (d) prior to the Commercial Operation Date, has the unilaterally exercisable contractual right to acquire or cause to be acquired on its behalf any of (a), (b), or (c).
“Station Use” means energy consumed within the Facility’s electric energy distribution system as losses, as well as energy used to operate the Facility’s auxiliary equipment. The auxiliary equipment may include, but is not limited to, forced and induced draft fans, cooling towers, boiler feeds pumps, lubricating oil systems, plant lighting, fuel handling systems, control systems, and sump pumps. This use is not to exceed 1% of average annual output. “Term” has the meaning set forth in Section 3.4.1.
“Transaction” means the particular transaction described in Section 3.3. “Transmission/Distribution Owner” means any entity or entities responsible for operating the electric distribution system or transmission system, as applicable, at and beyond the Interconnection Point.
CITY COUNCIL ORDINANCE NO.
DEVELOPMENT AGREEMENT DRC2021-00175 – CITY OF RANCHO CUCAMONGA January 5, 2022
“WECC” means the Western Electricity Coordinating Council, the regional reliability council for the Western United States, Northwestern Mexico and Southwestern Canada. “WREGIS” means the Western Renewable Energy Generating Information System or any successor renewable energy tracking program.
“WREGIS Certificates” has the same meaning as “Certificate” as defined by WREGIS in the WREGIS Operating Rules and are designated as eligible for complying with the California Renewables Portfolio Standard.
“WREGIS Operating Rules” means those operating rules and requirements adopted by WREGIS as of December 2010, as subsequently amended, supplemented or replaced (in whole or in part) from time to time.
*** End of Appendix A ***
CITY COUNCIL ORDINANCE NO.
DEVELOPMENT AGREEMENT DRC2021-00175 – CITY OF RANCHO CUCAMONGA January 5, 2022
Appendix B – Commercial Operation Date Confirmation Letter
In accordance with the terms of that certain Industrial Zoning District Renewable Power Purchase Agreement dated ________(“Agreement”) for the Facility named ________________________ by and between CITY OF RANCHO CUCAMONGA “Buyer”) and ____________________ (“Seller”), this letter serves to document the Parties further agreement that (i) the conditions precedent to the occurrence of the Commercial Operation Date have been satisfied as of this _____ day of _________, ______. This letter shall confirm the Commercial Operation Date, as defined in the Agreement, as the date referenced in the preceding sentence.
IN WITNESS WHEREOF, each Party has caused this Agreement to be duly executed by its authorized representative as of the date of last signature provided below:
By: By:
CITY OF RANCHO CUCAMONGA
(Seller) (Buyer)
(Signature) (Signature)
(Type/Print Name) (Type/Print Name)
(Title) (Title)
(Date) (Date)
*** End of Appendix B ***
CITY COUNCIL ORDINANCE NO.
DEVELOPMENT AGREEMENT DRC2021-00175 – CITY OF RANCHO CUCAMONGA January 5, 2022
Appendix C – Forecasting Requirements
A. AVAILABLE CAPACITY FORECASTING.
Seller shall provide the Available Capacity forecasts described below. [The following bracketed language applies to As-Available solar or wind Projects only] [Seller’s availability forecasts below shall include Project availability and updated status of [The following bracketed language applies to solar Projects only] [photovoltaic panels, inverters, transformers, and any other equipment that may impact availability] or [The following bracketed language applies to wind Projects only] [transformers, wind turbine unit status, and any other equipment that may impact availability].] [The following bracketed language applies to As-Available Product only] Seller shall use commercially reasonable efforts to forecast the Available Capacity of the Project accurately and to transmit such information in a format reasonably acceptable to Buyer. Buyer and Seller shall agree upon reasonable changes to the requirements and procedures set forth below from time-to-time, as necessary.
1. Annual Forecast of Available Capacity. No later than (I) the earlier of July 1 of the first calendar year following the Execution Date or one hundred and eighty (180) days before the first day of the first Contract Year of the Delivery Term (“First Annual Forecast Date”), and (II) on or before July 1 for each calendar year from the First Annual Forecast Date for every subsequent Contract Year during the Delivery Term, Seller shall provide to Buyer a non-binding forecast of the hourly Available Capacity for each day in each month of the following calendar year in a form reasonably acceptable to Buyer.
2. Monthly Forecast of Available Capacity. Ten (10) Business Days before the beginning of each month during the Delivery Term, Seller shall provide to Buyer a non-binding forecast of the hourly Available Capacity for each day of the following month in a form reasonably acceptable to Buyer.
*** End of Appendix C ***
CITY COUNCIL ORDINANCE NO.
DEVELOPMENT AGREEMENT DRC2021-00175 – CITY OF RANCHO CUCAMONGA January 5, 2022
Appendix D – Description of the Facility
Seller should complete the information below and attach a description of the Facility, including a summary of its significant components, a drawing showing the general arrangements of the Facility, and a single line diagram illustrating the interconnection of the Facility and loads with Buyer’s electric distribution system.
Name of the Facility:
Address of the Facility:
Description of the Facility, including a summary of its significant components, such as for solar photovoltaic [Photovoltaic Modules, DC Collection System, Current Inverters], meteorological station, instrumentation and any other related electrical equipment:
Drawing showing the general arrangement of the Facility:
A single-line diagram illustrating the interconnection of the Facility with Buyer:
A legal description of the Site, including a Site map:
Longitude and latitude of the centroid of the Site:
*** End of Appendix D ***
CITY COUNCIL ORDINANCE NO.
DEVELOPMENT AGREEMENT DRC2021-00175 – CITY OF RANCHO CUCAMONGA January 5, 2022
APPENDIX E – INDUSTRIAL ZONING DISTRICT RENEWABLE PPA MILESTONES
AND EXAMPLE ACTION STEPS
Action Deadline Date Completed Responsible Party
Step 1: Submit Application Seller
Step 2: Approve Application Buyer
Step 3: Sign Conditional PPA Both
Step 4: Acquire Interconnection Agreement Seller
Step 4A: Submit copy of Interconnection Agreement to
Buyer
Seller
Step 5: Submit confirmation of RPS precertification
requirement and provide Copy of precertification
application to Buyer
Seller
Step 6: File Project with WREGIS and submit proof to
Buyer.
Seller
Step 7: Pay Interconnection Fee and submit proof to
Buyer.
Seller
Step 8: Acquire Conditional Use Permit and
Construction Permits
Seller
Step 8A: Submit proof of permits to Buyer. Seller
Step 9: Notify Buyer 10 days prior to construction start. Seller Step 10: Submit proof of insurance to Buyer. Seller
Step 11: Mechanical Completion. Seller
Step 12: Notify Buyer 30 days in advance of the
Commercial Operation Date.
Seller
Step 12: Commercial Operation Date Seller
Step 13: Submit application for certification to CEC. Seller
*** End of Appendix E ***
CITY COUNCIL ORDINANCE NO.
DEVELOPMENT AGREEMENT DRC2021-00175 – CITY OF RANCHO CUCAMONGA January 5, 2022
Appendix F – Delivery Term Contract Quantity Schedule
Dated: XXXXX XX, 20XX
Delivery Term Contract Quantity Schedule
Contract Year Contract Quantity (kWh/Yr) Phase Effective Date 1 Phase 1 XXXXX XX, 20XX
2 Phase 1 XXXXX XX, 20XX
3 Phase 1 XXXXX XX, 20XX
4 Phase 1 XXXXX XX, 20XX
5 Phase 1 XXXXX XX, 20XX
6 Phase 1 XXXXX XX, 20XX
7 Phase 1 XXXXX XX, 20XX
8 Phase 1 XXXXX XX, 20XX
9 Phase 1 XXXXX XX, 20XX
10 Phase 1 XXXXX XX, 20XX
11 Phase 1 XXXXX XX, 20XX
12 Phase 1 XXXXX XX, 20XX
13 Phase 1 XXXXX XX, 20XX
14 Phase 1 XXXXX XX, 20XX
15 Phase 1 XXXXX XX, 20XX
16 Phase 1 XXXXX XX, 20XX
17 Phase 1 XXXXX XX, 20XX
18 Phase 1 XXXXX XX, 20XX
19 Phase 1 XXXXX XX, 20XX
20 Phase 1 XXXXX XX, 20XX
21 Phase 1 XXXXX XX, 20XX
22 Phase 1 XXXXX XX, 20XX
23 Phase 1 XXXXX XX, 20XX
24 Phase 1 XXXXX XX, 20XX
25 Phase 1 XXXXX XX, 20XX
*** End of Appendix F***
CITY COUNCIL ORDINANCE NO.
DEVELOPMENT AGREEMENT DRC2021-00175 – CITY OF RANCHO CUCAMONGA January 5, 2022
Appendix G – Notices List
Name: ______(“Seller”) Name: CITY OF RANCHO CUCAMONGA, a (“Buyer” or “RCMU”)
All Notices: [Seller to complete] All Notices:
Delivery Address: Delivery Address:
Street:
City: State: Zip:
Mail Address: (if different from above) Mail Address:
Attn: Attn:
Phone: Phone:
Facsimile: Facsimile:
DUNS: DUNS:
Federal Tax ID Number: Federal Tax ID Number:
Invoices: Invoices:
Attn: Attn:
Phone: Phone:
Facsimile: Facsimile:
Payments: Payments:
Attn: Attn:
Phone: Phone:
Facsimile: Facsimile:
Wire Transfer: Wire Transfer:
BNK:
ABA:
ACCT:
BNK:
ABA:
ACCT:
Credit and Collections: Credit and Collections:
Attn: Attn:
Phone: Phone:
Facsimile: Facsimile:
CITY COUNCIL ORDINANCE NO.
DEVELOPMENT AGREEMENT DRC2021-00175 – CITY OF RANCHO CUCAMONGA January 5, 2022
With additional Notices of an Event of
Default to Contract Manager:
Contract Manager:
Attn: Attn:
Phone: Phone:
Facsimile:
*** End of Appendix G***
CITY COUNCIL ORDINANCE NO.
DEVELOPMENT AGREEMENT DRC2021-00175 – CITY OF RANCHO CUCAMONGA January 5, 2022
Appendix H – FORM OF LETTER OF CREDIT
Issuing Bank Letterhead and Address
STANDBY LETTER OF CREDIT NO. XXXXXXXX
Date: [insert issue date]
Beneficiary: City of Rancho Cucamonga Applicant: [Insert name and address of Applicant]
Attention:
Letter of Credit Amount: [insert amount]
Expiry Date: [insert expiry date]
Ladies and Gentlemen:
By order of [insert name of Applicant] (“Applicant”), we hereby issue in favor of City of Rancho Cucamonga (the “Beneficiary”) our irrevocable standby letter of credit No. [insert number of letter of credit] (“Letter of Credit”), for the account of Applicant, for drawings up to but not to exceed the aggregate sum of U.S. $ [insert amount in figures followed by (amount in words)] (“Letter of Credit Amount”). This Letter of Credit is available with [insert name of issuing bank, and the city and state in which it is located] by sight payment, at our offices located at the address stated below, effective immediately, and it will expire at our close of business on [insert expiry date] (the “Expiry Date”).
Funds under this Letter of Credit are available to the Beneficiary against presentation of the following documents:
1. Beneficiary’s signed and dated sight draft in the form of Exhibit A hereto, referencing this Letter of Credit No. [insert number] and stating the amount of the demand; and
2. One of the following statements signed by an authorized representative or officer of Beneficiary:
A. “Pursuant to the terms of that certain [insert name of the agreement] (the “Agreement”), dated [insert date of the Agreement], between Beneficiary and [insert name of Seller under the
CITY COUNCIL ORDINANCE NO.
DEVELOPMENT AGREEMENT DRC2021-00175 – CITY OF RANCHO CUCAMONGA January 5, 2022
Agreement], Beneficiary is entitled to draw under Letter of Credit No. [insert number] amounts owed by [insert name of Seller under the Agreement] under the Agreement; or
B. “Letter of Credit No. [insert number] will expire in thirty (30) days or less and [insert name of Seller under the Agreement] has not provided replacement security acceptable to Beneficiary.
Special Conditions:
1. Partial and multiple drawings under this Letter of Credit are allowed;
2. All banking charges associated with this Letter of Credit are for the account of the Applicant;
3. This Letter of Credit is not transferable; and
4. The Expiry Date of this Letter of Credit shall be automatically extended without a written amendment for a period of one year and on each successive Expiry Date, unless at least sixty (60) days before the then current Expiry Date, we notify you by registered mail or courier that we elect not to extend the Expiry Date of this Letter of Credit for such additional period.
We engage with you that drafts drawn under and in compliance with the terms of this Letter of Credit will be duly honored upon presentation, on or before the Expiry Date (or after the Expiry Date as provided below), at our offices at [insert issuing bank’s address for drawings].
All demands for payment shall be made by presentation of originals or copies of documents; or by facsimile transmission of documents to [insert fax number], Attention: [insert name of issuing bank’s receiving department], with originals or copies of documents to follow by overnight mail. If presentation is made by facsimile transmission, you may contact us at [insert phone number] to confirm our receipt of the transmission. Your failure to seek such a telephone confirmation does not affect our obligation to honor such a presentation.
Our payments against complying presentations under this Letter of Credit will be made no later than on the sixth (6th) banking day following a complying presentation.
Except as stated herein, this Letter of Credit is not subject to any condition or qualification. It is our individual obligation, which is not contingent upon reimbursement and is not affected by any agreement, document, or instrument between us and the Applicant or between the Beneficiary and the Applicant or any other party.
Except as otherwise specifically stated herein, this Letter of Credit is subject to and governed by the Uniform Customs and Practice for Documentary Credits, 2007 Revision, International Chamber of Commerce (ICC) Publication No. 600 (the “UCP 600”); provided that, if this Letter of Credit expires during an interruption of our business as described in Article 36 of the UCP 600, we will honor drafts presented in compliance with this Letter of Credit within thirty (30) days after the resumption of our business and effect payment accordingly.
The law of the State of California shall apply to any matters not covered by the UCP 600.
CITY COUNCIL ORDINANCE NO.
DEVELOPMENT AGREEMENT DRC2021-00175 – CITY OF RANCHO CUCAMONGA January 5, 2022
For telephone assistance regarding this Letter of Credit, please contact us at [insert number and any other necessary details].
Very truly yours,
[insert name of issuing bank]
By:
Authorized Signature
Name: [print or type name]
Title:
*** End of Appendix H***
CITY COUNCIL ORDINANCE NO.
DEVELOPMENT AGREEMENT DRC2021-00175 – CITY OF RANCHO CUCAMONGA January 5, 2022
Appendix I – FORM OF CONSENT TO ASSIGNMENT
CONSENT AND AGREEMENT
This CONSENT AND AGREEMENT (“Consent and Agreement”) is entered into as of [_______ __, 2___], between CITY OF RANCHO CUCAMONGA (“RCMU”), and [_________________] , as collateral agent (in such capacity, “Financing Provider”), for the benefit of various financial institutions (collectively, the “Secured Parties”) providing financing to [_______] (“Seller”). RCMU, Seller, and the Financing Provider shall each individually be referred to as a “Party” and collectively as the “Parties”.
Recitals
A. Pursuant to that certain Power Purchase Agreement dated as of _____________, 2___ (as amended, modified, supplemented or restated from time to time, as including all related agreements, instruments and documents, collectively, the “Assigned Agreement”) between RCMU and Seller, RCMU has agreed to purchase energy from Seller.
B. The Secured Parties have provided, or have agreed to provide, to Seller financing (including a financing lease) pursuant to one or more agreements (the “Financing Documents”), and require that Financing Provider be provided certain rights with respect to the “Assigned Agreement” and the “Assigned Agreement Accounts,” each as defined below, in connection with such financing.
C. In consideration for the execution and delivery of the Assigned Agreement, RCMU has agreed to enter into this Consent and Agreement for the benefit of Seller.
Agreement
1. Definitions. Any capitalized term used but not defined herein shall have the meaning specified for such term in the Assigned Agreement.
2. Consent. Subject to the terms and conditions below, RCMU consents to and approves the pledge and assignment by Seller to Financing Provider pursuant to the Loan Agreement and/or Security Agreement of (a) the Assigned Agreement, and (b) the accounts, revenues and proceeds of the Assigned Agreement (collectively, the “Assigned Agreement Accounts”).
3. Limitations on Assignment. Financing Provider acknowledges and confirms that, notwithstanding any provision to the contrary under applicable law or in any Financing Document executed by Seller, Financing Provider shall not assume, sell or otherwise dispose of the Assigned Agreement (whether by foreclosure sale, conveyance in lieu of foreclosure or otherwise) unless, on or before the date of any such assumption, sale or disposition, Financing Provider or any third party, as the case may be, assuming, purchasing or otherwise acquiring the Assigned Agreement (a) cures any
CITY COUNCIL ORDINANCE NO.
DEVELOPMENT AGREEMENT DRC2021-00175 – CITY OF RANCHO CUCAMONGA January 5, 2022
and all defaults of Seller under the Assigned Agreement which are capable of being cured and which are not personal to the Seller, (b) executes and delivers to RCMU a written assumption of all of Seller’s rights and obligations under the Assigned Agreement in form and substance reasonably satisfactory to RCMU, (c) otherwise satisfies and complies with all requirements of the Assigned Agreement, (d) provides such tax and enforceability assurance as RCMU may reasonably request, and (e) is a Permitted Transferee (as defined below). Financing Provider further acknowledges that the assignment of the Assigned Agreement and the Assigned Agreement Accounts is for security purposes only and that Financing Provider has no rights under the Assigned Agreement or the Assigned Agreement Accounts to enforce the provisions of the Assigned Agreement or the Assigned Agreement Accounts unless and until an event of default has occurred and is continuing under the Financing Documents between Seller and Financing Provider (a “Financing Default”), in which case Financing Provider shall be entitled to all of the rights and benefits and subject to all of the obligations which Seller then has or may have under the Assigned Agreement to the same extent and in the same manner as if Financing Provider were an original party to the Assigned Agreement. “Permitted Transferee” means any person or entity who is reasonably acceptable to RCMU. Financing Provider may from time to time, following the occurrence of a Financing Default, notify RCMU in writing of the identity of a proposed transferee of the Assigned Agreement, which proposed transferee may include Financing Provider, in connection with the enforcement of Financing Provider’s rights under the Financing Documents, and RCMU shall, within thirty (30) business days of its receipt of such written notice, confirm to Financing Provider whether or not such proposed transferee is a “Permitted Transferee” (together with a written statement of the reason(s) for any negative determination) it being understood that if RCMU shall fail to so respond within such thirty (30) business day period such proposed transferee shall be deemed to be a “Permitted Transferee”.
4. Cure Rights.
(a) Notice to Financing Provider by RCMU. RCMU shall, concurrently with the delivery of any notice of an event of default under the Assigned Agreement (each, an “Event of Default”) to Seller (a “Default Notice”), provide a copy of such Default Notice to Financing Provider pursuant to Section 9(a) of this Consent and Agreement. In addition, Seller shall provide a copy of the Default Notice to Financing Provider the next business day after receipt from RCMU, independent of any agreement of RCMU to deliver such Default Notice.
(b) Cure Period Available to Financing Provider Prior to Any Termination by RCMU.
Upon the occurrence of an Event of Default, subject to (i) the expiration of the relevant cure periods provided to Seller under the Assigned Agreement, and (ii) Section 4(a) above, RCMU shall not terminate the Assigned Agreement unless it or Seller provides Financing Provider with notice of the Event of Default and affords Financing Provider an Additional Cure Period (as defined below) to cure such Event of Default. For purposes of this Agreement “Additional Cure Period” means (i) with respect to a monetary default, ten (10) days in addition to the cure period (if any) provided to Seller in the Assigned Agreement, and (ii) with respect to a non-monetary default, thirty (30) days in addition to the cure period (if any) provided to Seller in the Assigned Agreement.
CITY COUNCIL ORDINANCE NO.
DEVELOPMENT AGREEMENT DRC2021-00175 – CITY OF RANCHO CUCAMONGA January 5, 2022
(c) Failure by RCMU to Deliver Default Notice. If neither RCMU nor Seller delivers a Default Notice to Financing Provider as provided in Section 4(a), the Financing Provider’s applicable cure period shall begin on the date on which notice of an Event of Default is delivered to Financing Provider by either RCMU or Seller. Except for a delay in the commencement of the cure period for Financing Provider and a delay in RCMU’s ability to terminate the Assigned Agreement (in each case only if both RCMU and Seller fail to deliver notice of an Event of Default to Financing Provider), failure of RCMU to deliver any Default Notice shall not waive RCMU’s right to take any action under the Assigned Agreement and will not subject RCMU to any damages or liability for failure to provide such notice.
(d) Extension for Foreclosure Proceedings. If possession of the Project (as defined in the Assigned Agreement) is necessary for Financing Provider to cure an Event of Default and Financing Provider commences foreclosure proceedings against Seller within thirty (30) days of receiving notice of an Event of Default from RCMU or Seller, whichever is received first, Financing Provider shall be allowed a reasonable additional period to complete such foreclosure proceedings, such period not to exceed ninety (90) days; provided, however, that Financing Provider shall provide a written notice to RCMU that it intends to commence foreclosure proceedings with respect to Seller within ten (10) business days of receiving a notice of such Event of Default from RCMU or Seller, whichever is received first. In the event Financing Provider succeeds to Seller’s interest in the Project as a result of foreclosure proceedings, the Financing Provider or a purchaser or grantee pursuant to such foreclosure shall be subject to the requirements of Section 3 of this Consent and Agreement.
5. Setoffs and Deductions. Each of Seller and Financing Provider agrees that RCMU shall have the right to set off or deduct from payments due to Seller each and every amount due RCMU from Seller whether or not arising out of or in connection with the Assigned Agreement. Financing Provider further agrees that it takes the assignment for security purposes of the Assigned Agreement and the Assigned Agreement Accounts subject to any defenses or causes of action RCMU may have against Seller.
6. No Representation or Warranty. Seller and Financing Provider each recognizes and acknowledges that RCMU makes no representation or warranty, express or implied, that Seller has any right, title, or interest in the Assigned Agreement or as to the priority of the assignment for security purposes of the Assigned Agreement or the Assigned Agreement Accounts. Financing Provider is responsible for satisfying itself as to the existence and extent of Seller’s right, title, and interest in the Assigned Agreement, and Financing Provider releases RCMU from any liability resulting from the assignment for security purposes of the Assigned Agreement and the Assigned Agreement Accounts.
7. Amendment to Assigned Agreement. Financing Provider acknowledges and agrees that RCMU may agree with Seller to modify or amend the Assigned Agreement, and that RCMU is not obligated to notify Financing Provider of any such amendment or modification to the Assigned Agreement. Financing Provider hereby releases RCMURCMU from all liability arising out of or in connection with the making of any amendment or modification to the Assigned Agreement.
CITY COUNCIL ORDINANCE NO.
DEVELOPMENT AGREEMENT DRC2021-00175 – CITY OF RANCHO CUCAMONGA January 5, 2022
8. Payments under Assigned Agreement. RCMU shall make all payments due to Seller under the Assigned Agreement from and after the date hereof to [__________], as depositary agent, to ABA No. [__________], Account No. [__________], and Seller hereby irrevocably consents to any and all such payments being made in such manner. Each of Seller, RCMU and Financing Provider agrees that each such payment by RCMU to such depositary agent of amounts due to Seller from RCMU under the Assigned Agreement shall satisfy RCMU’s corresponding payment obligation under the Assigned Agreement.
9. Miscellaneous.
(a) Notices. All notices hereunder shall be in writing and shall be deemed received (i) at the close of business of the date of receipt, if delivered by hand or by facsimile or other electronic means, or (ii) when signed for by recipient, if sent registered or certified mail, postage prepaid, provided such notice was properly addressed to the appropriate address indicated on the signature page hereof or to such other address as a party may designate by prior written notice to the other parties, at the address set forth below:
If to Financing
Provider:
Name:
Address:
Attn:
Telephone:
Facsimile:
Email:
If to RCMU:
Name:
Address:
Attn:
Telephone:
Facsimile:
Email:
(b) No Assignment. This Consent and Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of RCMU, and shall be binding on and inure to the benefit of
CITY COUNCIL ORDINANCE NO.
DEVELOPMENT AGREEMENT DRC2021-00175 – CITY OF RANCHO CUCAMONGA January 5, 2022
the Financing Provider, the Secured Parties and their respective successors and permitted transferees and assigns under the loan agreement and/or security agreement. (c) No Modification. This Consent and Agreement is neither a modification of nor an amendment to the Assigned Agreement.
(d) Choice of Law. The parties hereto agree that this Consent and Agreement shall be construed and interpreted in accordance with the laws of the State of California, excluding any choice of law rules which may direct the application of the laws of another jurisdiction. (e) No Waiver. No term, covenant or condition hereof shall be deemed waived and no breach excused unless such waiver or excuse shall be in writing and signed by the party claimed to have so waived or excused.
(f) Counterparts. This Consent and Agreement may be executed in one or more duplicate counterparts, and when executed and delivered by all the parties listed below, shall constitute a single binding agreement.
(g) No Third Party Beneficiaries. There are no third party beneficiaries to this Consent and Agreement.
(h) Severability. The invalidity or unenforceability of any provision of this Consent and Agreement shall not affect the validity or enforceability of any other provision of this Consent and Agreement, which shall remain in full force and effect. (i) Amendments. This Consent and Agreement may be modified, amended, or rescinded only by writing expressly referring to this Consent and Agreement and signed by all parties hereto.
IN WITNESS WHEREOF, each of RCMU and Financing Provider has duly executed this Consent and Agreement as of the date first written above.
City of Rancho Cucamonga (RCMU)
By: _________________________________
Name: _______________________________
Title: ________________________________
[_________________________________]
(Financing Provider), as collateral agent
CITY COUNCIL ORDINANCE NO.
DEVELOPMENT AGREEMENT DRC2021-00175 – CITY OF RANCHO CUCAMONGA January 5, 2022
By: _________________________________
Name: _______________________________
Title: ________________________________
ACKNOWLEDGEMENT
The undersigned hereby acknowledges the Consent and Agreement set forth above, makes the agreements set forth therein as applicable to Seller, including the obligation of Seller to provide a copy of any Default Notice it receives from RCMU to Financing Provider the next business day after receipt by Seller, and confirms that the Financing Provider identified above and the Secured Parties have provided or are providing financing to the undersigned.
[________________________][name of Seller]
By: _________________________________
Name: _______________________________
Title: ________________________________
*** End of Appendix I***
CITY COUNCIL ORDINANCE NO.
DEVELOPMENT AGREEMENT DRC2021-00175 – CITY OF RANCHO CUCAMONGA January 5, 2022
EXHIBIT “F”
RCMU Line Extension
Rancho Cucamonga Municipal Utility
Developer Responsibility
Approximate location of stub out for developer
constructed infrastructure from here to building
POC/switch gear . Final location to be
coordinated with Cit y’s Etiwanda Grade
Separation Project and RCMU.
Developer constructed line extension including
RCMU interconnection point and private
infrastructure from line extension to building
POC/switch gear for electrical and fiberoptic
infrastructure
Developer constructed infrastructure to include
design and construction by developer of both
electrical and fiberoptic communications
infrastructure from stub out points shown above
to the POC/switch gear and telecommunications
room for each building.
N
Final design may include infrastructure within
the County of San Bernardino’s jurisdiction.
Developer to co ordinate with the County and
RCMU to obtain all necessary permits and
rights-of-way to construct and maintain utility
infrastructure outside of the City limits.
DATE:January 19, 2022
TO:Mayor and Members of the City Council
FROM:John R. Gillison, City Manager
INITIATED BY: Tamara L. Oatman, Finance Director
Minerva Gamboa, Business License Program Supervisor
SUBJECT: Consideration of First Reading of Ordinance No. 995, to be Read by Title Only and Waive Further Reading, Amending Chapter 3.40 Transient Occupancy Tax (TOT) of the Rancho Cucamonga Municipal Code to Confirm That Short-Term Rentals are Subject to the City’s Transient Occupancy Tax, Further Clarify the Definition of Hotel and Transient Under the Chapter, Provide Regulations for Filing and Appeals Procedures, and Make Other Minor Amendments to the Chapter. (ORDINANCE NO. 995)(CITY)
RECOMMENDATION:
Staff recommends the City Council introduce and conduct a First Reading of Ordinance No. 995, entitled “An Ordinance of the City of Rancho Cucamonga, California, Amending Chapter 3.40 of the Rancho Cucamonga Municipal Code to Confirm that Short-Term Rentals Are Subject to the City’s Transient Occupancy Tax, Further Clarify the Definition of Hotel and Transient under the Chapter, Provide Regulations for Filing and Appeals Procedures, and Make Other Minor Amendments to the Chapter,” read by title only and waive further reading.
BACKGROUND:
In August 2020, the City Council adopted Ordinance No. 969 allowing for short-term residential rentals (STRs) provided a short-term rental permit was obtained within permitted zones and owners complied with City regulations. The Ordinance also reiterated the requirement for STRs to collect and remit monthly Transient Occupancy Tax. An STR qualified as a “hotel” for purposes of the TOT ordinance because it is a dwelling intended to be occupied by transients for less than 30 consecutive days or less.
Revisions to Chapter 3.40 of the RCMC were last made in 2014 through Ordinance No. 870 (Recodification). The City’s TOT rate of 10% was first put into place through Ordinance No. 197 and became effective July 1, 1983. The City has maintained this rate throughout the course of its history. In comparison, a few of our neighboring cities have implemented a higher rate – Ontario has a TOT rate of 11.75% and Chino Hills has a TOT rate of 12%. The proposed ordinance does not change or affect the City’s TOT rate or who it may be levied upon.
ANALYSIS:
While the TOT requirement has always applied to STRs, staff determined that our current RCMC Chapter 3.40 Transient Occupancy Tax should be updated to clarify the existing Ordinance and practices for the collection of TOT from STRs. The proposed draft ordinance expands the
1 0
6 9
definition of “hotel” to specifically include short-term rentals, thus providing notice to STRs hosts in light of the recent STR Ordinance.
Staff have also received questions about the applicability of the TOT to non-human transients, such as corporations. Included in the revised ordinance is a common sense clarification that a transient must be a human person.
In addition to the above noted areas, the proposed TOT Ordinance includes other minor amendments to implement certain best practices in terms of TOT collection, such as identifying the Tax Administrator’s role in administering the tax and clarifying updates to the filings and appeals procedures. Many of these amendments were recommended by our TOT audit consultant to provide additional clarification to our Municipal Code to assist with future audits.
The updated Municipal Code will facilitate a more precise and definitive approach to the application of our TOT to ensure the City is able to collect the correct amount of tax from applicable operators of hotels. This, in turn, will make our current TOT rate of 10% more sustainable and enable the City to effectively compete with neighboring cities for hotel business opportunities. The provisions of the revised Ordinance constitute restatements of existing law and/or address the administration of the TOT Ordinance, but do not affect the rate or scope of the TOT.
FISCAL IMPACT:
There is no direct fiscal impact by this action. Clarification of the City’s Municipal Code pertaining to TOT will facilitate better compliance by hotels and will assist in future TOT audits.
COUNCIL MISSION / VISION / GOAL(S) ADDRESSED:
The clarification of the Municipal Code for the collection of TOT supports the City Council’s core value of providing and nurturing a high quality of life for all by demonstrating the active, prudent fiscal management of the City’s financial resources in order to support the various services the City provides to all Rancho Cucamonga stakeholders.
ATTACHMENTS:
Attachment 1 – Ordinance No. 995
Ordinance No. 995 – Page 1 of 8
ORDINANCE NO. 995
AN ORDINANCE OF THE CITY OF RANCHO CUCAMONGA,
CALIFORNIA, AMENDING CHAPTER 3.40 OF THE RANCHO
CUCAMONGA MUNICIPAL CODE TO CONFIRM THAT SHORT-
TERM RENTALS ARE SUBJECT TO THE CITY’S TRANSIENT
OCCUPANCY TAX, FURTHER CLARIFY THE DEFINITION OF
HOTEL AND TRANSIENT UNDER THE CHAPTER, PROVIDE
REGULATIONS FOR FILING AND APPEALS PROCEDURES,
AND MAKE OTHER MINOR AMENDMENTS TO THE CHAPTER
A. Recitals.
1. In August 2020, the City Council adopted Ordinance No. 969 allowing for short-term residential rentals (STRs), provided a short-term rental permit was obtained within permitted zones and owners complied with City regulations. The Ordinance also reiterated the requirement for STRs to collect and remit monthly Transient Occupancy Tax (TOT) because such rentals qualify as a “hotel” under the existing TOT ordinance.
2. The City’s Finance Department has also received questions about the applicability of the TOT to non-human transients, such as corporations, and the City Council desires to provide a common sense clarification that a transient must be a human person.
3. The City Council also desires to make other minor amendments to the TOT ordinance in order to implement certain best practices in terms of TOT collection, such as identifying the Tax Administrator’s role in administering the tax and clarifying updates to the filing and appeals procedures.
4. The provisions of this ordinance constitute restatements of existing law and/or address the administration of the TOT ordinance, but do not affect the rate or scope of the TOT.
5. All legal prerequisites prior to the adoption of this Ordinance have occurred.
B. Ordinance.
The City Council of the City of Rancho Cucamonga does ordain as follows:
SECTION 1. Chapter 3.40 (Transient Occupancy Tax) of Title 3 (Revenue and Finance) of the Rancho Cucamonga Municipal Code is hereby amended in its entirety to read as follows:
“Chapter 3.40 TRANSIENT OCCUPANCY TAX
3.40.010 Definitions.
3.40.020 Imposition of tax.
3.40.030 Exemptions
3.40.040 Allowance for collection costs.
3.40.050 Collection by operators.
3.40.060 Registration of hotel operators; issuance and contents of registration certificate.
3.40.070 Filing of report and remittance of tax collected.
3.40.080 Penalties for delinquent payment.
3.40.090 Cessation of business.
ATTACHMENT 1
Ordinance No. 995 – Page 2 of 8
3.40.100 Determination of tax by director of finance upon failure of operator to collect and report.
3.40.110 Appeals.
3.40.111 Records to be kept for three years.
3.40.112 Enforcement.
3.40.113 Disbursement.
3.40.114 Violations.
3.40.115 Effective date.
3.40.010 Definitions.
Except where the context otherwise requires, the definitions given in this section govern the construction of this chapter:
Hotel means any structure, or any portion of any structure, which is occupied or intended or designed for occupancy by transients for dwelling, lodging or sleeping purposes, and includes any hotel, inn, tourist home or house, motel, studio hotel, bachelor hotel, lodginghouse, roominghouse, apartment house, dormitory, public or private club, mobilehome or house trailer at a fixed location, short-term rental (as defined in chapter 8.34), or other similar structure or portion thereof.
Occupancy means the use or possession, or the right or entitlement to the use or possession, of any hotel room, rooms or portion thereof, in any hotel for dwelling, lodging or sleeping purposes.
Operator means a person who is proprietor of the hotel, whether in the capacity of owner, lessee, sub-lessee, mortgagee in possession, licensee or any other capacity. Where the operator performs his or her functions through a managing agent of any type or character other than an employee, the managing agent shall also be deemed an operator for the purposes of this chapter and shall have the same duties and liabilities as his or her principal. Compliance with the provisions of this chapter by either the principal or the managing agent shall, however, be considered to be compliance by both.
Person means any individual, firm, partnership, joint venture, association, social club, fraternal organization, joint stock company, corporation, estate, trust, business trust, receiver, trustee, syndicate, or any other group or combination acting as a unit.
Rent means the consideration charged, whether or not received, for the occupancy of space in a hotel valued in money, whether to be received in money, goods, labor or otherwise, including all receipts, cash, credits and property and services of any kind or nature, without any deduction therefrom whatsoever.
Tax means the tax imposed by this ordinance.
Tax Administrator means the Director of Finance or his or her designee. The Tax Administrator is charged with interpreting the provisions of this chapter.
Transient means any human person who exercises occupancy or is entitled to occupancy by reason of concession, permit, right of access, license or other agreement for a period of 30 consecutive calendar days or less, counting portions of calendar days as full days. Any such person so occupying space in a hotel shall be deemed to be a transient until the period of 30 days has expired, unless there is an agreement in writing between the operator and the occupant providing for a longer period of occupancy. In determining whether a person is a transient, uninterrupted periods of time extending both prior and subsequent to the effective date of the ordinance codified in this chapter may be considered.
Ordinance No. 995 – Page 3 of 8
3.40.020 Imposition of tax.
A. For the privilege of occupancy in any hotel, each transient is subject to and shall pay a tax in the amount of ten percent of the rent charged by the operator. Said tax constitutes a debt owed by the transient to the city which is extinguished only by payment to the operator or to the city.
The transient shall pay the tax to the operator of the hotel at the time the rent is paid. If the rent is paid in installments, a proportionate share of the tax shall be paid with each installment. The unpaid tax shall be due upon the transient’s ceasing to occupy space in the hotel. If for any reason the tax due is not paid to the operator of the hotel, the Tax Administrator may require that such tax shall be paid directly to the city.
3.40.030 Exemptions.
No tax shall be imposed upon:
A. Any officer or employee of a foreign government who is exempt by reason of express provision of federal law or international treaty.
B. Any federal or state officer or employee when on official business.
C. Any other person at whom, or any occupancy as to which, it is beyond the power of the City to impose the tax provided for in this chapter.
D. Any amount subject to tax under the Sales and Use Tax Law (commencing with Revenue and Taxation Code § 6001) with respect to the sale of food products. For purposes of this subsection, the term “food products” means food and beverage products of every kind, regardless of how or where served, and shall specifically include, but not be limited to, alcoholic beverages and carbonated beverages of every kind.
Except for Subsection D above, no exemptions shall be granted except upon a claim therefor made at the time the rent is collected and under penalty of perjury upon a form prescribed by the Tax Administrator.
3.40.040 Allowance for collection costs.
From the full amount of the tax collected and transmitted to the director of finance pursuant to this chapter, each operator may deduct and retain as for his or her administrative expense in the collection of said tax, an amount equal to four percent of the total tax to be paid.
3.40.040 Collection by operators.
Each operator shall collect the tax imposed by this chapter to the same extent and at the same time as the rent is collected from every transient. The amount of tax shall be separately stated from the amount of the rent charged, and each transient shall receive a receipt for payment from the operator. No operator of a hotel shall advertise or state in any manner, whether directly or indirectly, that the tax or any part thereof will be assumed or absorbed by the operator, or that it will not be added to the rent, or that, if added, any part will be refunded, except in the manner hereinafter provided.
Ordinance No. 995 – Page 4 of 8
3.40.050 Registration of hotel operators; issuance and contents of registration certificate.
Within 30 days after commencing business, each operator of any hotel renting occupancy to transients shall register said hotel with the director of finance and obtain from him or her a transient occupancy registration certificate to be at all times posted in a conspicuous place on the premises. Every application for such a certificate shall be made upon a form prescribed by the Tax Administrator and shall set forth the name under which the operator transacts or intends to transact business, the location of the place of business and such other information as the Tax Administrator may require. The application shall be signed by the owner of the hotel if a natural person; by a member or partner, if association or partnership; by an executive officer or some person specifically authorized by the corporation to sign the application, if a corporation. The transient occupancy registration certificate must be in effect at all times while the business is in operation and shall be at all times posted in a conspicuous place on the hotel premises. Said certificate shall, among other things, state the following:
A. The name of the hotel;
B. The name of the operator;
C. The address of the hotel; and
D. The day upon which the certificate was issued;
E. “This transient occupancy registration certificate signifies that the person named on the face hereof has fulfilled the requirements of the uniform Transient Occupancy Tax Ordinance by registering with the Tax Administrator for the purpose of collecting from transients the Transient Occupancy Tax and remitting said tax to the Tax Administrator. This certificate does not authorize any person to conduct any unlawful business or to conduct any lawful business in an unlawful manner, nor to operate a hotel without strictly complying with all local applicable laws, including but not limited to those requiring a permit from any board, commission, department or office of this city. This certificate does not constitute a permit and does not apply in lieu of such other permits which are otherwise required to operate.”
3.40.060 Filing of report and remittance of tax collected Each operator shall, on or before the last day of the month following the close of each month, or at the close of any shorter reporting period which may be established by the Tax Administrator, make a return to the Tax Administrator, on forms provided by him/her, of the total rents charged and received and the amount of tax collected from transient occupancies. Each such return shall contain a declaration under penalty of perjury, executed by the operator or its authorized agent, that to the best of the signatory’s knowledge, the statements in the return are true, correct and complete. At the time the return is filed, the full amount of the tax collected shall be remitted to the Tax Administrator. Amounts claimed on the return as exempt from the tax pursuant to Section
3.40.030 shall be fully itemized and explained on the return or supporting schedule. At the time the return is filed, the tax fixed at the prevailing tax rate for the amount of occupancies charged or chargeable, which are not exempt from tax under Section 3.40.030, shall be remitted to the Tax Administrator. The Tax Administrator may establish shorter reporting periods for any certificate holder if he or she deems it necessary in order to ensure collection of the tax and he or she may require further information on the return. Returns and payments are due immediately upon cessation of business for any reason. All taxes collected by operators pursuant to this
Ordinance No. 995 – Page 5 of 8
chapter shall be held in trust for the account of the city until payment thereof is made to the Tax Administrator.
3.40.070 Penalties for delinquent payment.
A.Original delinquency. Any operator who fails to remit any tax imposed by this chapter within the time required shall pay a penalty of ten percent of the amount of the tax in addition to the amount of the tax.
B.Continued delinquency. Any operator who fails to remit any delinquent remittance on or before a period of 30 days following the date on which the remittance first became delinquent shall pay a second delinquency penalty of ten percent of the amount of the tax, in addition to the amount of the tax and the ten percent penalty first imposed.
C.Fraud. If the Tax Administrator determines that the nonpayment of any remittance due under this chapter is due to fraud, a penalty of 25 percent of the amount of the tax shall be added thereto, in addition to the penalties stated in subsections A and B of this section.
D.Interest. In addition to the penalties imposed, any operator who fails to remit any tax imposed by this chapter shall pay interest at the rate of one percent per month, or fraction thereof, on the amount of the tax, exclusive of penalties from the date on which the remittance first became delinquent until paid.
E.Penalties merged with tax. Every penalty imposed and such interest as accrues under the provisions of this section shall become a part of the tax herein required to be paid.
3.40.080 Determination of tax by Tax Administrator upon failure of operator to collect and report.
If any operator shall fail or refuse to collect said tax and to make, within the time provided in this chapter, any report and remittance of said tax or portion thereof required by this chapter, the Tax Administrator shall proceed in such manner as he or she may deem best to obtain facts and information on which to base his estimate of the tax due. As soon as the Tax Administrator procures such facts and information as he or she is able to obtain, upon which to base the assessment of any tax imposed by this chapter and payable by any operator who has failed or refused to collect the same, and to make such report and remittance, he or she shall proceed to determine and assess against such operator the tax, interest and penalties provided for by this chapter. In case such determination is made, the Tax Administrator shall give a notice of the amount so assessed by serving it personally or by depositing it in the United States mail, addressed to the operator so assessed, at his or her last known address. Such operator may, within ten days after the serving or mailing of such notice, make application in writing to the Tax Administrator for a hearing on the amount assessed. If the application by the operator for a hearing is not made within the time prescribed, the tax, interest and penalties, if any, determined by the Tax Administrator shall become final and conclusive and immediately due and payable. If such application is made, the Tax Administrator shall give not less than five days’ written notice in the manner prescribed herein to the operator to show cause at a time and place fixed in said notice why said amount specified therein should not be fixed for such tax, interest and penalties.
At such hearing, the operator may appear and offer evidence why such specified tax, interest and penalties should not be so fixed. After such hearing the Tax Administrator shall determine the proper tax to be remitted and shall thereafter give written notice to the person in the manner prescribed herein of such determination and the amount of such tax, interest and penalties. The
Ordinance No. 995 – Page 6 of 8
amount determined to be due shall be payable after fifteen days unless an appeal is taken as provided in section 3.40.090.
3.40.090 Cessation of business.
Each operator shall notify the Tax Administrator, ten days prior to the sale or cessation of business of a hotel for any reason and returns and remittances are due immediately upon the sale or cessation of business.
3.40.100 Appeals.
Any operator aggrieved by any decision of the Tax Administrator with respect to the amount of such tax, interest and penalties, if any, may appeal to the City Manager, or his or her designee, by filing notice of appeal with the City Clerk within 15 days of the serving or mailing of the determination of tax due. The appellant shall pay a non-refundable fee in an amount established by resolution of the City Council for such appeal. The City Clerk shall schedule an appeal hearing with the City Manager or designee within 15 days of an appeal being filed. The City Clerk shall give notice in writing to such operator at his or her last known place of address. The decision of the City Manager or his or her designee shall contain factual findings and legal conclusions which support the decisions and shall be final and shall be served upon the appellant in the manner prescribed above for service of notice of hearing. Any amount found to be due shall be immediately due and payable upon the service of notice.
3.40.110 Records to be kept for three years.
It shall be the duty of every operator liable for the collection and payment to the city of any tax imposed by this chapter to keep and preserve, in the city, for a period of three years, all records as may be necessary to determine the amount of such tax as he or she may have been liable for the collection of and payment to the city, which records the Tax Administrator shall have right to inspect at all reasonable times.
Such records shall be made available to the Tax Administrator or designee at all reasonable times to conduct audits for verification of the tax liability. The Tax Administrator may subpoena the records or use any other lawful method required to inspect the records if any operator refuses to make them available for examination upon request. If the above records are not provided by the hotel operator or are deemed incomplete or unacceptable by the Tax Administrator, a determination of the taxes, penalties, and interest due will be made by the Tax Administrator in the manner specified in Section 3.40.080.
3.40.110 Enforcement.
Any tax required to be paid by any transient under the provisions of this chapter shall be deemed a debt owed by the transient to the city. Any such tax collected by an operator which has not been paid to the city shall be deemed a debt owed by the operator to the city. Any person owing money to the city under the provisions of this chapter shall be liable to an action brought in the name of the city for the recovery of such amount. Except in the case of fraud or the failure of a property owner to file a transient occupancy tax return, the city may institute an action to collect unpaid transient occupancy taxes within four years of the date on which the transient occupancy taxes were required to be paid. If the Tax Administrator determines that the failure to make any remittance or payment due under this chapter is due to fraud, the violation shall be punishable pursuant to Section 3.40.130.
Ordinance No. 995 – Page 7 of 8
3.40.120 Disbursement.
All moneys received by the city from the collection of transient occupancy tax shall be paid into the general fund.
3.40.130 Violations.
Any operator or other person violating any provisions of this chapter shall be guilty of a misdemeanor and shall be punishable therefor by a fine of not more than $500.00, or by imprisonment in the county jail for a period of not more than six months, or by both such fine and imprisonment. Any operator or other person who fails or refuses to register as required by this chapter or to furnish any return required to be made, or who fails or refuses to furnish a supplemental return or other data required by the Tax Administrator, or who renders a false or fraudulent return or claim is guilty of a misdemeanor and is punishable as aforesaid. Any person required to make, render, submit or verify any report or claim who makes any false or fraudulent report or claim with intent to defeat or evade the determination of any amount due required by this chapter to be made, is guilty of a misdemeanor and is punishable as aforesaid.
3.40.140 Effective Date.
The tax imposed by this chapter became operative on July 1, 1983.” SECTION 2. If any section, subsection, subdivision, paragraph, sentence, clause or phrase in this Ordinance or any part thereof is for any reason held to be unconstitutional, invalid, or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this Ordinance or any part thereof. The City Council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause or phrase thereof irrespective of the fact that any one or more sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases be declared unconstitutional, invalid, or ineffective.
SECTION 3. The City Clerk shall certify to the adoption of this Ordinance and shall cause the same to be published in the manner prescribed by law.
Ordinance No. 995 – Page 8 of 8
PASSED, APPROVED, AND ADOPTED this _____ day of ______________, 2022. _____________________________________
L. Dennis Michael
Mayor
I, JANICE REYNOLDS, City Clerk of the City of Rancho Cucamonga, do hereby certify that the foregoing Ordinance was introduced at a regular meeting of the City Council of the City of Rancho Cucamonga held on the _____ day of _______________, 2022, and was finally passed at a regular meeting of the City Council of the City of Rancho Cucamonga held on the ______ day of ______________, 2022, by the following vote:
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
ABSTAINED: COUNCILMEMBERS:
ATTEST:______________________________
City Clerk
DATE:January 19, 2022
TO:Mayor and Members of the City Council
FROM:John R. Gillison, City Manager
INITIATED BY: Sean McPherson, AICP, Senior Planner
SUBJECT: Discussion, Consideration and Possible Action to Introduce, Waive Reading of and Adopt by a Four-fifths Vote, for a Period of 45 Days, an Urgency Ordinance to Establish Objective Zoning And Subdivision Standards for Senate Bill 9 Projects in Single-Family Residential Zones, Declaring The Urgency Thereof and Making a Determination of Exemption Under the California Environmental Quality Act (CEQA). (URGENCY ORDINANCE NO. 994) (CITY)
RECOMMENDATION:
Staff recommends that the City Council adopt Urgency Ordinance No. 994 entitled “An Urgency Zoning Ordinance of the City Council of the City of Rancho Cucamonga Enacted Pursuant to Government Code Section 65858 Establishing Interim Development Standards for SB 9 Development, Declaring the Urgency Thereof and Making A Determination of Exemption Under the California Environmental Quality Act (CEQA),” by four-fifths vote, waive full reading, and read by title only.
BACKGROUND:
Government Code Section 65858 provides, “Without following the procedures otherwise required prior to the adoption of a zoning ordinance, the legislative body of a…city…to protect the public safety, health, and welfare, may adopt as an urgency measure an interim ordinance prohibiting any uses that may be in conflict with a contemplated General Plan, Specific Plan, or Zoning proposal that the legislative body, Planning Commission or the Planning Department is considering or studying or intends to study within a reasonable time. That urgency measure shall require a four-fifths vote of the legislative body for adoption. The interim ordinance shall be of no further force and effect 45 days from its date of adoption. After notice pursuant to Section 65090 and public hearing, the legislative body may extend the interim ordinance for 10 months and 15 days and subsequently extend the interim ordinance for one year. Any extension shall also require a four-fifths vote for adoption. Not more than two extensions may be adopted.” In response to the housing shortage and affordability crisis, on September 16, 2021, Governor Gavin Newsom signed into law Senate Bill (SB) 9. SB 9, which took effect January 1, 2022, requiring the ministerial review of two types of development applications within single-family residential zones: two lot subdivisions (known as “Urban Lot Splits”), and residential development projects of up to 2 units per lot (“Two- Unit Projects”), subject to certain qualifying criteria. Because SB 9 requires that these applications be approved on a ministerial basis, the City cannot hold public hearings or consider subjective factors, such as aesthetics and neighborhood character,
1 0
9 6
for qualifying applications which meet basic criteria. In short, this legislation makes it possible in some instances for there to be up to 4 units constructed on a single-family zoned lot where only one single family residence previously existed, inclusive of Accessory Dwelling Units (ADU) and Junior Accessory Dwelling Units (JADU).
Preliminary research by staff indicates that approximately 25,000 single-family zoned parcels within the City may be eligible for further development under SB 9. Considering the number of parcels which may be eligible for development under SB 9, and especially considering any impact this new development may have upon the City, staff is currently exploring potential regulations which may be implemented in order to ensure that SB 9 is implemented in an appropriate and legally defensible manner that carefully considers public health, safety and welfare in the City.
ANALYSIS:
Development under SB 9 could have the potential to cause specific adverse impacts, such as additional traffic which could exacerbate existing access and emergency response constraints within certain neighborhoods where access, circulation and parking may be deficient or limited (i.e., dead-end streets within Very High Fire Severity Zones, neighborhoods where roads do not meet minimum width standards, etc.). SB 9 could also impact the availability of services in existing single-family residential neighborhoods by facilitating the creation of lots and construction of units which are inconsistent with utilities in existing single-family residential neighborhoods. Finally, SB 9 could have the unintended effect of reducing affordability of units within single-family neighborhoods if such units are not reserved for low-income tenants or the developments are too large so as not to be affordable. It is critical that the City prevent any public health and safety impacts that may arise under this new requirement. Maintaining the quality, livability and safety of existing single-family residential neighborhoods throughout the City is a critically important community objective, as evidenced by goals set forth in the City’s General Plan. Consequently, implementing SB 9 regulations without considering local context could negatively affect the health, safety and welfare of the public within the City.
To address such concerns, on December 1, 2021, the City Council discussed certain policy and development code considerations which included:
Consider objective standards for zoning and subdivisions to ensure that SB 9 development does not adversely impact existing single-family residential neighborhoods; Consider studying areas of historic significance to determine if further protections are appropriate;
Consider implementing additional regulations related to SB 9 to maintain the public health, safety and welfare within Very High Fire Severity Zones; Consider the impact further SB 9 development may have on utility capacity within certain neighborhoods;
Consider how the development of SB 9 units may allow the City to achieve the important local and statewide goals of increasing the availability of affordable housing.
Following that City Council meeting, staff continues researching these various policy and development code considerations and intends to return to the Council within the first quarter of 2022 with comprehensive Development Code Amendments. As SB 9 is now effective (as of January 1, 2022), and in order to prevent any adverse impacts to public health, safety and welfare, staff recommends that the City Council adopt the subject urgency ordinance which is attached to this report and which establishes interim standards while staff continues to work on permanent development code amendments to address the policy considerations referenced above.
1 0
9 6
SB 9 permits the City to enforce objective zoning, subdivision, and design standards on SB 9 project. In summary, the proposed interim regulations would do the following:
Limits the application of SB 9 to single-family residential zones, which are: Very Low Residential (VL), Low Residential (L), and Hillside Residential (HR). A maximum unit size of 800 square feet, which may be increased to 1,200 square feet if at least one of the units on the lot is reserved for rentals to very-low income households; Limits new units to one-story and 16 feet in height;
Requires the Fire Marshall, City Engineer, and Building Official to review SB 9 projects to determine whether a particular project could cause a specific, adverse impact to public health and safety for which there is no feasible mitigation; and Other objective design criteria intended to help prevent unintended impacts of SB 9 projects on existing single-family neighborhoods.
Pursuant to Government Code Section 65858, the initial term of the urgency ordinance is 45 days (expiring on March 5, 2022). In the event that staff determines that a permanent development code amendment may not be prepared by the expiration of the urgency ordinance, staff may bring a further ordinance to extend the term of the urgency ordinance for up to 10 months, 15 days prior to the initial expiration date. Ten days before the proposed extension, the City Council will consider a report identifying the steps taken by staff to address these issues during the urgency ordinance’s moratorium’s initial term.
This ordinance is exempt from the California Environmental Quality Act as an ordinance intended to implement SB 9.
FISCAL IMPACT:
None
COUNCIL MISSION / VISION / GOAL(S) ADDRESSED:
Enacting an urgency ordinance in an effort to maintain the public health, safety and welfare or the community achieves multiple City Council “Core Values,” including:
Providing and nurturing a high quality of life for all; Promoting and enhancing a safe and healthy community for all; Intentionally embracing and anticipating the future.
ATTACHMENTS:
Attachment 1 – Draft Urgency Ordinance No. 994
Urgency Ordinance No. 994 - Page 1 of 10
1 9
9 6
URGENCY ORDINANCE NO. 994
AN URGENCY ZONING ORDINANCE OF THE CITY COUNCIL OF
THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, TO
ESTABLISH OBJECTIVE ZONING AND SUBDIVISION
STANDARDS FOR SENATE BILL 9 PROJECTS IN SINGLE-
FAMILY RESIDENTIAL ZONES, DECLARING THE URGENCY
THEREOF AND MAKING A DETERMINATION OF EXEMPTION
UNDER THE CALIFORNIA ENVIRONMENTAL QUALITY ACT
(CEQA)
THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA DOES
HEREBY ORDAIN AS FOLLOWS:
SECTION 1.Legislative Findings.
On September 16, 2021, Governor Newsom approved Senate Bill (“SB”) 9 to amend the Planning and Zoning Law and the Subdivision Map Act effective January 1, 2022.
A.SB 9 amended Government Code Section 66452.6 and added Sections 65852.21 and 66411.7 of Chapter 162, and took effect on January 1, 2022.
B.SB 9 generally requires cities and counties to ministerially approve two-unit housing developments and parcel maps to create urban lot splits on lots within single- family residential zones.
C.SB 9 authorizes the City to enforce objective zoning, subdivision, and design standards.
D.SB 9 projects will have the potential to significantly impact the character of the City’s established residential neighborhoods.
E.SB 9 projects have the potential to impact the health, safety, and welfare of residents in the City, particularly those residing in single-family residential neighborhoods, vehicular and pedestrian safety, on-street parking demand, and housing affordability. In addition, the potential increase to residential density in areas of the City designed for single-family development may cause increased demand on utilities and access routes that were not designed for such density. As a result, the City Council finds that there is an immediate need to establish objective zoning and subdivision standards for SB 9 projects in order to protect the public health, safety, and welfare while it studies permanent land use regulations for such projects and to ensure SB 9 does not have a detrimental impact on single-family residential neighborhoods within the City.
F.The City intends to study and develop permanent land use regulations for the implementation of SB 9 projects in the city. Given that SB 9 took effect on January 1, ATTACHMENT 1
Urgency Ordinance No. 994 - Page 2 of 10
1 9
9 6
2022, the City will not be able to complete the process of developing and adopting such permanent regulations prior to SB 9 taking effect. Thus, the City Council desires to adopt an interim urgency ordinance that will take effect immediately in order to ensure that SB 9 projects do not unreasonably impact the character of single-family residential neighborhoods or threaten public health, safety, or welfare while permanent regulations are studies and prepared.
G.It is well documented that California is experiencing a housing supply crisis, with housing demand far outstripping supply. The housing crisis has particularly exacerbated the need for affordable homes at prices below market rates. The City has a regional housing need between 2021 and 2029 to construct 3,245 extremely low/very low-income units, 1,920 low-income units, and 2,031 moderate income units (Housing Element 2021-2029, Table HE-47, Page 72). According to the City’s recently-adopted Housing Element, the City still needs to construct 3,209 extremely low/very low-income units and 1,864 low-income units during the sixth housing cycle.
H.To help address this affordability crisis, the City Council finds that limiting the size of units developed pursuant to SB 9 and requiring that some units be affordable are important interim regulations to protect public welfare and to prevent SB 9 developments from conflicting with forthcoming permanent land use regulations.
I.The purpose of this Ordinance is to establish objective zoning, subdivision, and design standards for housing developments undertaken pursuant to SB 9.
SECTION 2.Authority.
Pursuant to Government Code Section 65858, the City Council may adopt, as an urgency measure, an interim ordinance that prohibits any uses that may be in conflict with a contemplated zoning proposal that the City Council is considering, studying, or intends to study within a reasonable period of time.
SECTION 3.Urgency Declaration and Findings.
The City Council finds and determines that there is an immediate threat to the public health, safety, or welfare caused by SB 9 projects, which threat will significantly limit the City’s ability to preserve community character, affordability, and environmental and public health and safety. As described in Section 1 of this Interim Urgency Ordinance, the staff report accompanying this Interim Urgency Ordinance, and other evidence in the record, such development in the City could threaten the health, safety and welfare of the community through negative impacts that include, but are not limited to, emergency access during emergencies, appropriate sizing for utilities and streets, parking, and housing affordability.
The City Council finds and determines that there is an immediate threat to public health, safety, or welfare if the City does not have enforceable zoning, subdivision, and
Urgency Ordinance No. 994 - Page 3 of 10
1 9
9 6
design standards for such projects. Therefore, it is necessary that this Interim Urgency Ordinance take effect immediately upon adoption.
SECTION 4.Prohibition on SB 9 Projects that Fail to Comply with this Interim Urgency Ordinance.
Based on the facts and findings set forth in Sections 1 through 3 of this Interim Urgency Ordinance, and notwithstanding any other ordinance or provision of the Rancho Cucamonga Municipal Code, residential development projects and urban lot splits proposed pursuant to Senate Bill 9, are prohibited unless the project complies with the requirements of Sections 5 and 6 of this Interim Urgency Ordinance.
SECTION 5. Development in Single-Family Residential Zones.
A. Purpose. This Section provides objective zoning and design standards for the development of residential units pursuant to SB 9. Development pursuant to this Section does not require discretionary review or a hearing and is processed ministerially through a plan check/zoning clearance.
B. Applicability. SB 9 projects shall only be developed in single-family residential zones. For purposes of this Section, the following zones are considered single- family residential zones: Very Low Residential (VL), Low Residential (L), and Hillside Residential (HR).
C. General Standards. All development pursuant to SB 9 shall comply with the following objective standards:
1.Eligibility requirements of Government Code Section 65852.21(a) shall be satisfied.
2.Except where superseded by SB 9 or this Section, development shall comply with the objective development standards of the zone in which the lot is located.
3.Access to any unit shall not be across an easement that restricts such access.
4.More than 25 percent of the exterior structural walls of an existing dwelling shall not be demolished unless the site has not been occupied by a tenant in the last three years.
5.The lot shall contain no more than one pedestrian path connected to the public right-of-way or private street.
6.The development shall contain no exterior stairways except those leading from grade to the first floor.
Urgency Ordinance No. 994 - Page 4 of 10
1 9
9 6
7.Off-street parking shall be provided in accordance with the following standards:
a.A minimum of one off-street parking space shall be provided for each residential unit.
b.No off-street parking is required if either of the following apply:
i.The lot is located within one-half mile walking distance of either: a high-quality transit corridor as defined in Public Resources Code Section 21155(b) or a major transit stop as defined in Public Resources Code Section 21064.3.
ii.A car-share vehicle is located within one block of the lot.
D. Additional Standards for New Construction. In addition to the standards of Subsection C, the standards of this Subsection apply if one or both residential units are new construction:
1.Maximum unit size shall be 800 square feet, except when rented at a level affordable to Low-Income (50%-80% of AMI) households, per Subsection J.5 below, the maximum unit size may be up to 1,200 sqaure feet.
2.No residential unit shall exceed a building height of one story.
3.No residential unit shall exceed a building height of 16 feet.
4.Each residential unit shall have a minimum setback of four feet from side and rear property lines except as allowed by Government Code Section 65852.21.
5.If the residential units are built as separate buildings, the following standards shall apply.
a.The buildings shall be located one in front of the other in relation to the street.
b.The front building shall be at least as wide and as tall as the rear building.
c.The front building shall be positioned such that the rear building is not visible from the street when viewed from directly in front of the property.
Urgency Ordinance No. 994 - Page 5 of 10
1 9
9 6
6.If the residential units are built as a single building, one residential unit shall have a door facing the street and one residential unit shall have a door facing a side or rear property line.
E. Additional Standards for Conversion of an Existing Dwelling. In addition to the standards of Subsection C, the standards of this Subsection apply if an existing dwelling will be fully or partially retained:
1.Maximum unit size shall be 800 square feet, except when rented at a level affordable to Low-Income (50%-80% of AMI) households, per Subsection J.5. below, the maximum unit size may be up to 1,200 square feet.
2.The existing setbacks shall be maintained when converting or substantially redeveloping an existing structure to a two-unit residential development, except that additions to the existing dwelling shall have a minimum setback of four feet from side and rear property lines.
3.Additions to the existing dwelling shall not increase the building height beyond the allowable maximum of the respective base zoning district.
4.If two residential units are located in the same building, one residential unit shall have a door facing the street and one residential unit shall have a door facing a side or rear property line.
F. Additional Standards for Urban Lot Split Projects. In addition to the standards of Subsections C, D, and E as applicable, the standards of this Subsection apply if the residential units will be located on lots created by an urban lot split.
1.Each lot created by the parcel map shall be used solely for residential uses.
2.No lot created by the parcel map shall have more than two residential units, inclusive of any accessory dwelling unit (ADU) or junior accessory dwelling unit (JADU). No ADU or JADU shall be allowed on any parcel created by an urban lot split if the subdivider uses the authority provided under Government Code Section 65852.21.
3.If the boundary line between the lots created by the parcel map is perpendicular to the front lot line, the units shall be subject to the following standards:
a.The buildings nearest the street on each lot created by the parcel map shall have no more than one residential unit with a door facing the street.
Urgency Ordinance No. 994 - Page 6 of 10
1 9
9 6
G. Exceptions. The Planning Director shall approve an exception to any of the standards specified in this Section upon determining that complying with the standard would physically preclude the construction of up to two residential units or would physically preclude either of the two residential units from being 800 square feet in floor area.
H. Review. The Building Official, City Engineer, and Fire Marshal shall review applications to determine whether a proposed development would cause a specific adverse effect to public health, safety, and welfare, as defined in Government Code Section 65589.5. If so, the Building Official shall make a written finding in support of his or her decision to deny the application.
I. Denial. The Building Official shall deny an application for an SB 9 project upon making both of the following findings in writing based upon a preponderance of evidence:
1.The proposed housing development project would have a specific, adverse impact upon the public health and safety or the physical environment as defined and determined in Government Code Section 65589.5(d)(2).
2.There is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact.
J. Income Restriction. If more than one unit is developed on a single lot, the second unit may be up to 1,200 square feet if one of the units is rented at a level affordable to Low-Income (50%-80% of AMI) households, provided that the property owner must execute and record against the subject property an affordability covenant provided by the Planning Director per Subsection K below.
K. Covenants Required. A property owner seeking to develop units on a single-family residential property, pursuant to the standards of SB 9 and the standards of this Section, shall execute and record the following covenants against the subject property with the San Bernardino County Assessor-Recorder-Clerk and provide a copy to the City:
1.Short-Term Rental of a residential unit for a period less than 31 days shall be prohibited;
2.Non-residential uses on the site shall be prohibited;
3.Any subsequent urban lot split of land that was previously subdivided with an urban lot split shall be prohibited;
4.The owner of the property for which an urban lot split is proposed shall sign an affidavit stating that the owner intends to occupy one of the housing
Urgency Ordinance No. 994 - Page 7 of 10
1 9
9 6
units as their principal residence for at least three years from the date of the approval of the urban lot split; and
5.Residential units over 800 square feet, created pursuant to the standards of this Section, shall be rented at a level affordable to Low-Income (50%- 80% AMI) households for a period of at least 45 years.
SECTION 6.Urban Lot Splits in Single-Family Residential Zones.
A. Purpose. This Section provides objective subdivision standards for urban lot splits on single-family residential zone lots pursuant to SB 9.
B. Applicability
1.This Section applies to single-family residential zone lots. For the purposes of this Section, the following zones are considered single-family residential zones: Very Low Residential (VL), Low Residential (L), and Hillside Residential (HR).
2. An urban lot split is prohibited on a lot previously subdivided by an urban lot split pursuant to SB 9. In addition, an urban lot split is prohibited on a lot if the lot’s owner or any person acting in concert with the owner of such lot has previously subdivided an adjacent lot pursuant to SB 9.
3. An urban lot split shall not require discretionary review or a hearing and is approved ministerially by the City Engineer through a parcel map application. This Section is exempt from the application and hearing requirements described in Chapter 16.20 (Tentative Parcel Maps – Four or Less Parcels) and Section 16.22.090 (Approval by City Council).
C. Subdivision Standards. An urban lot split pursuant to this Section is subject to the following standards.
1. Eligibility requirements of Government Code Section 66411.7(a) shall be satisfied.
2. A minimum lot size of one acre per dwelling unit is required for any proposed lot which does not have access to a public sewer.
3. Each lot created by the parcel map shall have a minimum area of 1,200 square feet.
4. The newly created lots shall not be smaller than 45 percent of the area of the original lot.
Urgency Ordinance No. 994 - Page 8 of 10
1 9
9 6
5. Each newly created lot must have access to a public street.
6. Lot lines shall be:
i.Straight lines, unless there is a conflict with existing improvements or the natural environment;
ii.Generally parallel to the street when facing the street or be at right angles perpendicular to the street on straight streets, or radial to the street on curved streets; and
iii.Within appropriate physical locations that do not bisect buildings and are contiguous with existing zoning boundaries.
D. Exceptions. The City Engineer shall approve an exception to any of the standards satisfied in this Section upon determining that complying with the standard would physically preclude the construction of up to two residential units or would physically preclude either of the two residential units from being 800 square feet in floor area.
E. Review. The Building Official, City Engineer, and Fire Marshal shall review applications to determine whether there is a specific adverse effect to public health, safety, and welfare.
F. Denial. The City Engineer shall deny an urban lot split upon making both of the following findings in writing based upon a preponderance of evidence.
1.The proposed housing development project would have a specific, adverse impact upon the public health and safety or the physical environment as defined and determined in Government Code Section 65589.5(d)(2).
2.There is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact.
G. Covenants Required. A property owner seeking to develop units on a single-family residential property, pursuant to the standards of SB 9 and the standards of this Section, shall execute and record the following covenants against the subject property with the San Bernardino County Assessor-Recorder-Clerk and provide a copy to the City:
1.Short-Term Rental of a residential unit for a period less than 31 days shall be prohibited;
2.Non-residential uses on the site shall be prohibited;
Urgency Ordinance No. 994 - Page 9 of 10
1 9
9 6
3.Any subsequent urban lot split of land that was previously subdivided with an urban lot split shall be prohibited;
4.The owner of the property for which an urban lot split is proposed shall sign an affidavit stating that the owner intends to occupy one of the housing units as their principal residence for at least three years from the date of the approval of the urban lot split; and
5.Residential units over 800 square feet shall be rented at a level affordable to Low-Income (50%-80% AMI) households for a period of at least 45 years.
SECTION 7.CEQA.
Adoption of this Ordinance is not a project under the California Environmental Quality Act pursuant to Government Code Sections 65852.21(j) and 66411.7(n).
SECTION 8.Severability.
If any section, subsection, sentence, clause, phrase, or portion of this Interim Urgency Ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Interim Urgency Ordinance. The City Council declares that it would have adopted this Interim Urgency Ordinance and each section, subsection, sentence, clause, phrase, or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional.
SECTION 9. Effective Date; Approval and Extension of Ordinance.
This Interim Urgency Ordinance, being adopted as an urgency measure for the immediate protection of the public safety, health, and general welfare, containing a declaration of the facts constituting the urgency, and passed by a minimum four-fifths (4/5) vote of the City Council, shall take effect immediately upon its adoption and shall continue in effect for a period of not longer than forty-five (45) days. After notice pursuant to Government Code Section 65090 and a public hearing, the City Council may extend the effectiveness of this Urgency Ordinance as provided in Government Code Section 65858.
SECTION 10. Publication.
The City Clerk shall certify to the passage and adoption of this Interim Urgency Ordinance and shall cause its publication in accordance with applicable law.
Urgency Ordinance No. 994 - Page 10 of 10
1 9
9 6
PASSED, APPROVED, AND ADOPTED this __ day of _____, 2022, by the following vote to wit:
AYES: ( )
NOES: ( )
ABSENT: ( )
ABSTAIN: ( )
L. Dennis Michael, Mayor
ATTEST:
_________________________________
Janice C. Reynolds, City Clerk
APPROVED AS TO FORM:
_________________________________
Nicholas R. Ghirelli, City Attorney
DATE:January 19, 2022
TO:Mayor and Members of the City Council
FROM:John R. Gillison, City Manager
INITIATED BY: Jason C. Welday, Director of Engineering Services/City Engineer Ian Tai, Associate Engineer
SUBJECT: Consideration of a Resolution of Necessity for the Acquisition by Eminent Domain of Certain Real Property Interests for Public Purposes in Connection with the Phase 1, Segment 2, San Sevaine Trail Project, A Joint Agency Project with the City of Fontana (Chao Ping Yan, Terminus of Smokestone Street, East of Torrey Pine Court, San Bernardino County Tax Assessor’s Parcel Number 0228-044-24). (RESOLUTION NO. 2022- 007) (CITY)
RECOMMENDATION:
Staff recommends that the City Council:
1. Consider the following Resolution, which is a Resolution of Necessity of the City of Rancho Cucamonga Declaring Certain Real Property Interests Necessary for Public Purposes and Authorizing the Acquisition Thereof in Connection with the City’s San Sevaine Trail Project:
Resolution No. 2022-007
2. Open and conduct a hearing on the adoption of the proposed Resolution of Necessity, receive from City Staff the evidence stated and referred to in this Agenda Report (“Report”), take testimony from any person wishing to be heard on issues A, B, C, and D below, and consider all evidence to determine whether to adopt the proposed Resolution of Necessity, which requires the City Council’s consideration and determination.
3. If the City Council finds, based on the evidence contained and referred to in this Report, the testimony and comments submitted to the City Council, that the evidence warrants the necessary findings with respect to the proposed Resolution of Necessity, then City Staff recommends that the City Council, in the exercise of its discretion, adopt proposed Resolution of Necessity No. 2022-007, (which requires a 4/5ths vote of the entire City Council) and authorize the City Attorney’s office to file eminent domain proceedings to acquire the following real property interests (referred to below as the “Subject Property Interest”) from the parcel described below:
1 0
9 1
Terminus of Smokestone Street, East of Torrey Pine Court, APN 0228-044-24 (Chao Ping Yang Parcel)
An approximate 13,689 square foot, non-exclusive, permanent easement for public trail purposes, and all uses necessary or convenient thereto from the real property located at the Terminus of Smokestone Street, East of Torrey Pine Court, Rancho Cucamonga, and identified as San Bernardino County Tax Assessor’s Parcel Number 0228-044-24, which is owned by Chao Ping Yang (referred to as “Yang Parcel”).
The Subject Property Interest, comprised of the above-described real property interest, is described more particularly in the Resolution of Necessity. The Resolution of Necessity, with its Exhibits, is attached hereto and incorporated herein by this reference.
4. If the City Council adopts the proposed Resolution of Necessity, authorize the City Attorney’s Office to file and prosecute an eminent domain proceeding for the acquisition of the Subject Property Interest by eminent domain.
5. Authorize the City Manager and his designees to execute all necessary documents.
BACKGROUND:
The City Council has before it a proposed Resolution of Necessity for the acquisition by eminent domain of certain real property interests in connection with the City’s San Sevaine Trail Project, Phase 1, Segment 2 (“Project”). This Project is a joint agency project with the City of Fontana, with the City of Fontana being the lead agency.
The Project requires the acquisition of additional property for a Multi-Use (bike and pedestrian) trail. The Project extends from Banyan Street on the north and the Pacific Electric Trail, south of Victoria Street on the south, passing under Interstate 15 and State Route 210, and spanning a total of 1.35 miles. The Project will enhance the existing Flood Control District maintenance road that runs parallel to the Etiwanda Channel by adding striping, trail lighting, asphalt pavement, fencing, retaining walls, sidewalk, and curb to allow for bicyclists and pedestrian use of the Multi- Use trail easement. When completed in July 2023, the Project will provide an additional area for bike and pedestrian mobility access to the public, and will encompass areas of both the City of Rancho Cucamonga and the City of Fontana. The Plans for the Project are on file with the Engineering Services Department and are incorporated herein by this reference.
The Project requires the acquisition of the Subject Property Interest for public trail, and related purposes, and all uses necessary or convenient thereto. The City has attempted to negotiate in good faith with the owner to acquire the above-described Subject Property Interest. The City has been unable to reach a negotiated acquisition with the owner of the Subject Property Interest.
Based on the timing of the Project, it is necessary that the City consider the proposed Resolution of Necessity at this time.
ANALYSIS:
The City seeks to acquire the Subject Property Interest for public use, namely public trail and related purposes, and all uses necessary or convenient thereto in connection with the Project.
The City seeks to construct the Project to improve bike and pedestrian mobility, and provide an additional outdoor recreation space for its citizens. The Project’s goal of converting a portion of
1 0
9 1
the Flood Control District’s existing maintenance road into a Multi-Use path, is identified in the City’s General Plan.
The Project was planned and located to minimize the impact on the adjacent properties. Because of its scope, the Project requires the acquisition of a non-exclusive, permanent easement over a portion of property that is privately owned and is currently encumbered by a flood control easement and storm-channel improvements. Due to the existing flood control easement and the existing storm-channel improvements, the property is not developable. Further, the property is zoned as Flood Control / Utility Corridor - Open Space. The construction of the Project will not require any business/residential relocations. The City will coordinate the construction with the owner of the Subject Property Interest to minimize the impact of the Project on the parcel. Based on the timing of the Project, it is necessary that the City consider the acquisition by eminent domain of the required Subject Property Interest.
The City seeks to acquire the Subject Property Interest for public use, namely public trail and related purposes, and all uses necessary or convenient thereto in connection with the Project pursuant to the authority conferred on the City of Rancho Cucamonga to acquire real property by eminent domain by Section 19 of Article 1 of the California Constitution, Government Code Sections 37350, 37350.5, 37351, 40401, and 40404, California Code of Civil Procedure Section 1230.010 et seq. (Eminent Domain Law), including, but not limited to, Sections 1240.010, 1240.020, 1240.110, 1240.120, 1240.150, 1240.510, 1240.610, 1240.650, and by other provisions of law.
For the reasons set forth above, the construction of the Project is in the public interest and necessity and is needed to improve bike and pedestrian mobility, and provide an additional outdoor recreation space for its citizens.
Required Findings for Adoption of Resolution of Necessity Authorizing the Acquisition of the Subject Property Interest by Eminent Domain
In order to adopt the proposed Resolution of Necessity for the acquisition by eminent domain of the Subject Property Interest, the City Council must find and determine, that:
A. The public interest and necessity require the Project; B. The Project is planned and located in the manner that will be most compatible with the greatest public good and the least private injury; C. The Subject Property Interest described in the Resolution of Necessity is necessary for the Project; and
D. The City has made an offer as required by Government Code Section 7267.2 to the owner of record of the real property interest it seeks to acquire.
The amount of just compensation is not an issue before the City Council at this hearing. The hearing relates to issues A, B, C, and D above. The amount of just compensation would be determined in the eminent domain proceeding that would be filed if the City Council, in its sole discretion, adopts the proposed Resolution of Necessity.
1 0
9 1
Environmental Analysis
The environmental effects of the Project were studied and analyzed pursuant to the California Environmental Quality Act (“CEQA”), Public Resources Code Section 21000 et seq., and the CEQA Guidelines, 14 Cal. Code Regs. Section 15000 et seq. (“CEQA Guidelines”). Effects were also studied and analyzed pursuant to the National Environmental Policy Act (“NEPA”).
The City of Fontana (the lead agency in this joint agency project), adopted a Mitigated Negative Declaration (MND) pursuant to the CEQA requirements on July 30, 2020.
The State of California, Department of Transportation (“Caltrans”) determined that the project qualifies for categorical exclusion under 23 USC 327 pursuant to NEPA requirements in May 2016.
In connection with the proposed Resolution of Necessity, on January 19, 2022, City Staff reviewed the environmental documentation prepared in connection with the Project. Pursuant to the criteria of Section 15162 of the CEQA Guidelines and Section 21166 of the Public Resources Code, City Staff concluded that no substantial changes have occurred in the Project, no substantial changes have occurred in the circumstances under which the Project is undertaken, and that the City has obtained no new information of substantial importance that would require further environmental analysis. These environmental findings are the appropriate findings with respect to the proposed acquisition of the Subject Property Interest.
City’s Actions Pursuant to Government Code Section 7260 et seq.
Pursuant to Government Code Section 7260 et seq., the City of Rancho Cucamonga obtained a fair market value appraisal of the Subject Property Interest and the larger parcel of which the Subject Property Interest is a part, set just compensation in accordance with the appraised fair market value, and extended a written offer to the owner of record. The City negotiated in good faith with the record owner. As of the date of this Staff Report; however, the parties have not reached a negotiated agreement. Based on the timing of the Project, it is necessary that the City consider the adoption of the Resolution of Necessity at this time.
Following is a summary of the actions taken by the City pursuant to Government Code Section 7260 et seq.
Terminus of Smokestone Street, East of Torrey Pine Court, (APN 0228-044-24) (Yang Parcel)
Pursuant to Government Code Section 7260 et seq., the City of Rancho Cucamonga obtained a fair market value appraisal of the Yang Parcel and the non-exclusive permanent easement the City seeks to acquire, for public use, namely public trail purposes. The City set just compensation in accordance with the appraised fair market value, and extended a written offer on September 22, 2021 to Chao Ping Yang, the owner of record. The fair market value appraisal used a date of value of July 16, 2021.
The City’s written offer included an informational pamphlet describing the eminent domain process and the record owner’s rights under the Eminent Domain Law. In accordance with Government Code Section 7267.2, the City’s written offer contained a written statement of, and summary of the basis for, the amount it established as just compensation. The offer set forth the date of value utilized by the appraiser and explained
1 0
9 1
the appraiser’s opinion of the highest and best use of the property. It explained the applicable zoning designation of the parcel. The City’s offer also summarized the principal transactions relied on by the appraiser to arrive at the appraiser’s opinion of value. In addition, the written offer explained the appraiser’s valuation analysis. It included the City’s comparable market data relied on by the appraiser. Further, the City offered, pursuant to Code of Civil Procedure Section 1263.025, to pay the record owner the reasonable costs, up to $5,000.00, for an independent appraisal of the parcel.
The City made several attempts to follow up and negotiate with the owner regarding the City’s offer. Based on the timing of the Project, it is necessary for the City Council to consider the adoption of the proposed Resolution of Necessity authorizing the acquisition by eminent domain of the Subject Property Interest needed from the Yang Parcel.
City’s Actions Pursuant to Code of Civil Procedure Section 1245.235 Pursuant to Code of Civil Procedure Section 1245.235, the City sent a letter and a notice by first- class mail dated December 22, 2021 to the record owner of the Subject Property Interest the City seeks to acquire, informing him of the City’s intent to consider at its January 19, 2022 meeting, the adoption of a resolution of necessity for the acquisition by eminent domain of the Subject Property Interest.
The notice advised the record owner of his right to appear and be heard regarding the City’s proposed adoption of the Resolution of Necessity by filing, within fifteen days of the date the notice was mailed, a written request with the City to appear at the hearing. The notice specifically informed the record owner of the Subject Property Interest that he has an opportunity to appear before the City Council and raise questions about whether the public interest and necessity require the Project; whether the Project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury; and whether the Subject Property Interest the City seeks to acquire from the owner of record is necessary for the Project.
As discussed above, based on the proposed timing of the Project, it is necessary for the City Council to consider the adoption of the proposed Resolution of Necessity at this time.
This hearing relates to issues A, B, C, and D below.
REQUIRED FINDINGS FOR ADOPTION OF RESOLUTION OF NECESSITY A. The Public Interest and Necessity Require the Project The Project, as planned and designed, is in the public interest and necessity and is needed to construct and maintain a Multi-Use (bike and pedestrian) trail. The Project extends from Banyan Street on the north and the Pacific Electric Trail, south of Victoria Street on the south, passing under Interstate 15, and spanning a total of 1.35 miles. The Project will enhance the existing Flood Control District maintenance road that runs parallel to the Etiwanda Channel by adding striping, trail lighting, asphalt pavement, fencing, retaining walls, sidewalk, and curb to allow bicyclist and pedestrian use of the Multi-Use trail easement. When completed in July 2023, the Project will provide an additional area for bike and pedestrian mobility access to the public, and will encompass areas of both the City of Rancho Cucamonga and the City of Fontana. The Plans for the Project are on file with the Engineering Services Department and are incorporated herein by this reference.
1 0
9 1
The Project, as planned and designed, is consistent with the Land Use and Community Character Element of the General Plan. Goal LC-5, Connected Corridors, provides for “A citywide network of transportation and open space corridors that provides a high level of connectivity for pedestrians, bicyclists, equestrians, motorists, and transit users. Further, Goal OS-1, Open Space, provides for “A complete, connected network of diverse parks, trails, and rural and natural open space that support a wide variety of recreational, educational and outdoor activities.” Goal OS-2, Trails, provides for “A complete, connected network of diverse trails and connected open space that improves access to all areas of the city and encourages non-motorized activities.” Specifically, Goal OS-2.5 provides, “Utility Corridors. Preserve the primary function of utility corridors while providing every reasonable opportunity for shared public use for active mobility and recreational purposes.” The City seeks to acquire the Subject Property Interest for public use, namely a non-exclusive, Multi-Use (bike and pedestrian) trail and related purposes, and all uses necessary or convenient thereto in connection with the Project. The City seeks to construct the Project to improve bike and pedestrian mobility, and provide a complementary use to property encumbered with an existing flood control easement, that will benefit the community.
The Project was planned and located to minimize the impact on the adjacent properties. Because of its scope, the Project requires the acquisition of a non- exclusive, permanent easement over a portion of property that is privately owned and is currently encumbered by a flood control easement and storm-channel improvements. Due to the existing flood control easement and the existing storm- channel improvements, the property is not developable. Further, the property is zoned as Flood Control / Utility Corridor - Open Space. The construction of the Project will not require any business/residential relocations. The City will coordinate the construction with the owner of the Subject Property Interest to minimize the impact of the Project on the parcel. Based on the timing of the Project, it is necessary that the City consider the acquisition by eminent domain of the required Subject Property Interest.
The public use for which the City seeks to acquire the Subject Property Interest, namely public trail and related purposes, and all uses necessary or convenient thereto, will not unreasonably interfere with or impair the continuance of the public use to which any easement holders may have appropriated the area (Code of Civil Procedure Section 1240.510). Accordingly, the City is authorized to acquire the Subject Property Interest pursuant to Code of Civil Procedure Sections 1240.510, 1240.610, and 1240.650.
B. The Project is Planned and Located in the Manner that will be Most Compatible with the Greatest Public Good and the Least Private Injury The Project, as planned and designed, is in the public interest and necessity and is needed to construct and maintain a Multi-Use (bike and pedestrian) trail. The Project extends from Banyan Street on the north and the Pacific Electric Trail, south of Victoria Street on the south, passing under Interstate 15, and spanning a total of 1.35 miles. The Project will enhance the existing Flood Control District maintenance road that runs parallel to the Etiwanda Channel by adding striping, trail lighting, asphalt pavement, fencing, retaining walls, sidewalk, and curb to allow
1 0
9 1
bicyclist and pedestrian use of the Multi-Use trail easement. When completed in July 2023, the Project will provide an additional area for bike and pedestrian mobility access to the public, and will encompass areas of both the City of Rancho Cucamonga and the City of Fontana. The Plans for the Project are on file with the Engineering Services Department and are incorporated herein by this reference.
The Project, as planned and designed, is consistent with the Land Use and Community Character Element of the General Plan. Goal LC-5, Connected Corridors, provides for “A citywide network of transportation and open space corridors that provides a high level of connectivity for pedestrians, bicyclists, equestrians, motorists, and transit users. Further, Goal OS-1, Open Space, provides for “A complete, connected network of diverse parks, trails, and rural and natural open space that support a wide variety of recreational, educational and outdoor activities.” Goal OS-2, Trails, provides for “A complete, connected network of diverse trails and connected open space that improves access to all areas of the city and encourages non-motorized activities.” Specifically, Goal OS-2.5 provides, “Utility Corridors. Preserve the primary function of utility corridors while providing every reasonable opportunity for shared public use for active mobility and recreational purposes.” The City seeks to acquire the Subject Property Interest for public use, namely a non-exclusive, Multi-Use (bike and pedestrian) trail and related purposes, and all uses necessary or convenient thereto in connection with the Project. The City seeks to construct the Project to improve bike and pedestrian mobility, and provide a complementary use to property encumbered with an existing flood control easement, that will benefit the community.
The Project was planned and located to minimize the impact on the adjacent properties. Because of its scope, the Project requires the acquisition of a non- exclusive, permanent easement over a portion of property that is privately owned and is currently encumbered by a flood control easement and storm-channel improvements. Due to the existing flood control easement and the existing storm- channel improvements, the property is not developable. Further, the property is zoned Flood Control / Utility Corridor - Open Space. The construction of the Project will not require any business/residential relocations. The City will coordinate the construction with the owner of the Subject Property Interest to minimize the impact of the Project on the parcel. Based on the timing of the Project, it is necessary that the City consider the acquisition by eminent domain of the required Subject Property Interest.
The public use for which the City seeks to acquire the Subject Property Interest, namely public trail and related purposes, and all uses necessary or convenient thereto, will not unreasonably interfere with or impair the continuance of the public use to which any easement holders may have appropriated the area (Code of Civil Procedure Section 1240.510). Accordingly, the City is authorized to acquire the Subject Property Interest pursuant to Code of Civil Procedure Sections 1240.510, 1240.610, and 1240.650.
1 0
9 1
C. The Subject Property Interest Described in the Resolutions of Necessity are Necessary for the Project
The City seeks to construct the Project, as planned and designed, to construct and maintain a Multi-Use (bike and pedestrian) trail. The Project extends from Banyan Street on the north and the Pacific Electric Trail, south of Victoria Street on the south, passing under Interstate 15, and spanning a total of 1.35 miles. The Project will enhance the existing Flood Control District maintenance road that runs parallel to the Etiwanda Channel by adding striping, trail lighting, asphalt pavement, fencing, retaining walls, sidewalk, and curb to allow bicyclist and pedestrian use of the Multi-Use trail easement. When completed in July 2023, the Project will provide an additional area for bike and pedestrian mobility access to the public, and will encompass areas of both the City of Rancho Cucamonga and the City of Fontana. Further, the Project is consistent with the Land Use and Community Character Element of the City’s General Plan.
The City cannot construct the Project without the acquisition of the Subject Property Interest, which is described more particularly in the Resolution of Necessity:
Terminus of Smokestone Street, East of Torrey Pine Court, APN 0228-044- 24 (Yang Parcel)
An approximate 13,689 square foot non-exclusive, permanent easement for Multi-Use public trail purposes, and all uses necessary or convenient thereto from the real property located at the Terminus of Smokestone Street, East of Torrey Pine Court, Rancho Cucamonga, and identified as San Bernardino County Tax Assessor’s Parcel Number 0228-044-24, which is owned by Chao Ping Yang.
As stated above, the public use for which the City seeks to acquire the Subject Property Interest, namely public trail and related purposes, and all uses necessary or convenient thereto, will not unreasonably interfere with or impair the continuance of the public use to which any easement holders may have appropriated the area (Code of Civil Procedure Section 1240.510). Accordingly, the City is authorized to acquire the Subject Property Interest pursuant to Code of Civil Procedure Sections 1240.510, 1240.610, and 1240.650.
D. The City has made an offer as required by Government Code Section 7267.2 to the owner of record of the Subject Property Interest The City, pursuant to Government Code Section 7260 et seq., obtained a fair market value appraisal of the Subject Property Interest, set just compensation in accordance with the fair market value and extended a written offer to the owner of record of the Subject Property Interest. As detailed above, the City extended to the owner of record of the Subject Property Interest a written offer pursuant to Government Code Section 7267.2 to acquire the Subject Property Interest for public use, namely public trail and related purposes, and all uses necessary or convenient thereto. Specifically, the City extended a written offer to the record owner of the Subject Property Interest:
1 0
9 1
The City extended a written offer to Chao Ping Yang. to purchase an approximate 13,689 square foot non-exclusive, permanent easement for public trail purposes, and all uses necessary or convenient thereto over a portion of the real property located at the Terminus of Smokestone Street, East of Torrey Pine Court, Rancho Cucamonga, and further identified as a portion of San Bernardino County Tax Assessor’s Parcel Number 0228- 044-24.
Incorporation of Above-Referenced Documents:
The following documents on file with the City Clerk’s Office and/or the Engineering Services Department, which are referenced in this report, are incorporated herein by this reference:
Resolution of Necessity (attached hereto)
City of Rancho Cucamonga General Plan
Offer letter to the record owner of the Subject Property Interest Notice pursuant to Code of Civil Procedure Section 1245.235 to the record owner of the Subject Property Interest
Plans for Project
Environmental Documents relating to Project
Notice of Exemption
FISCAL IMPACT:
The Project is a joint agency project with the City of Fontana serving as the lead agency. In a previously approved Memorandum of Understanding (“MOU”) identified by City of Rancho Cucamonga Contract Number 17-029, the MOU states the funding is from the Recreational Trails Program and Mobile Source Air Pollution Reduction Clean Transportation Funding grant money, and Fontana money. Work performed under the MOU will be at no cost to the City of Rancho Cucamonga.
After the project completion, the City of Rancho Cucamonga will be responsible for maintenance cost of the portion of the Project that is within the City of Rancho Cucamonga. This will be from the General Fund.
COUNCIL MISSION / VISION / GOAL(S) ADDRESSED:
The Project is creating a new trail for pedestrians and bicyclists and this supports the City Council’s Vision of creating a world class community, and also the Values of providing a high- quality life as well as promoting and enhancing a safe and healthy community.
ATTACHMENTS:
Attachment 1 – Proposed Resolution of Necessity 2022-007
Resolution No. 2022-007 – Page 1 of 11
RESOLUTION NO. 2022-007
A RESOLUT
ION OF THE CITY CO UNCIL OF THE CITY OF RANCHO
CUCAMONGA, CALIFORNIA, DECLARING CERTAIN REAL
PROPERTY INTERESTS NECESSARY FOR PUBLIC PURPOSES AND
AUTHORIZING THE ACQUISITION THEREOF IN CONNECTION WITH
THE SAN SEVAINE TRAIL PROJECT, PHASE 1, SEGMENT 2 (A
PERMANENT EASEMENT OVER A PORTION OF APN 0228-044-24)
WHEREAS, the City of Rancho Cucamonga (“City”) is a municipal corporation in the County of San Bernardino, State of California; and
WHEREAS, the City seeks to cons truct the San Sevaine Tr ail Project, Phase 1, Segment 2 (“Project”).
The Project requires the acquisition of additional property for a Multi-Use (bike and pedestrian) trail. The Projec t extends from Banyan Street on the north and the Pacific Electric Trail, south of Vict oria Street on the south, passing under Interstate 15, and spanning a total of 1.35 miles. The Project will enhance the existing Flood Control District maintenance road that runs parallel to the Etiwanda Channel by adding striping, trail lighting, asphalt pavement, fencing, retaining walls, sidewalk, and curb to allow bicyclists and pedestrian use of the Multi- Use trail easement. When completed in July 2023, the Project will provide an additional area for bike and pedestrian mobility access to the public, and will encompass areas of both the City of Rancho Cucamonga and the City of Fontana. The Plans for the Project are on file with the Engineering Services Department and are incorporated herein by this reference; and
WHEREAS, the
environmental effects of the Project were studied and analyzed pursuant to the California Environmental Quality Act (“CEQA”), Public Resources Code Section 21000 et seq., and the CEQA Guidelines, 14 Cal. Code Regs. Section 15000 et seq. (“CEQA Guidelines”).
Effects were also studied and analyzed pursuant to the National Environmental Policy Act (“NEPA”).
The City of Fontana (the lead agency in this joint agency project), adopted a Mitigated Negative Declaration (MND) pursuant to the CEQA requirements on July 30, 2020.
The State of California, Department of Transportation (“Caltrans”) determined that the project qualifies for categorical exclusion under 23 USC 327 pursuant to NEPA requirements in May 2016; and
WHEREAS, in connection with the proposed Resolution of Necessity, on January 19, 2022, City Staff reviewed the environmental documentation prepared in connection with the Project. Pursuant to the criteria of Section 15162 of the CE QA Guidelines and Section 21166 of the P ublic Resources Code, City Staff concluded that no substantial changes have occurred in the Project, no s ubstantial changes have occurred in the circumstances under which the Project is undertaken, and that the City has obtained no new information of substantial importance that would require further environmental ATTACHMENT 1
Resolution No. 2022-007 – Page 2 of 11
analysis. These environmental findings are t he appropriate findings with respect to the proposed acquisition of the Subject Property Interest.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Rancho Cucamonga as follows:
SECTION 1. The Rancho Cucamonga City Council adopts Resolution No. 2022- 007, A Resolution of the Cit y Council of the City of R ancho Cucamonga, California, Declaring Certain Real Property Interests Necessary for Public Purposes and Authorizing the Acquisition Thereof in Connection with the San Sevaine Trail Project, Phase 1, Segment 2 (a permanent easement over a portion of APN 0228-044-24).
SECTION 2. The City seeks to acquire by eminent domain the real property interest described below in Section 3 of this Resolution for public use, namely public trail and related purposes, and all uses necessary or convenient thereto in connection with the San Sevaine Trail Project, Phase 1 pursuant to the authority conferred on the City of Rancho Cucamonga to acquire real property by eminent domain by Section 19 of Article 1 of the California Constitu tion, Government Code Secti ons 37350, 37350.5, 37351, 40401, and 40404, California Code of Civil Procedure Section 1230.010 et seq. (Eminent Domain Law), including but, not limited to, Sections 1240.010, 1240.020, 1240.110, 1240.120, 1240.150, 1240.510, 1240.610, 1240.650, and by other provisions of law.
SECTION 3. The City seeks to acquire an approximate 13,689 square foot permanent easement over a porti on of the real property lo cated at the Terminus of Smokestone Street, Ea st of Torrey Pine Court, Ranc ho Cucamonga, California, and further identified as San Bernardino County Tax Assessor’s Parcel Number 0228-044-24 in connection with the Project. The permanent easement is referred to herein as “Subject Property Interest,” and APN 0228-044-24 is re ferred to herein as “Y ang Parcel.” The Subject Property Interest is described more par ticularly in Exhibit “A” and depicted on Exhibit “B”, which are attached hereto and incorporated herein by this reference.
SECTION 4. The environmental effects of the acquisition of the Subject Property Interest were studied as an integral part of t he environmental review for the Project. In connection with the proposed Resolution of Necessity, on January 19, 2022, City Staff reviewed the environmental do cumentation prepared in c onnection with the Project.
Pursuant to the criteria of Section 15162 of the CEQA Guidelines and Section 21166 of the Public Resources Code, City Staff c oncluded that no substantial changes have occurred in the Project, no substantial changes have occurred in the circumstances under which the Project is undertake n, and that the City has obt ained no new information of substantial importance that would require further environmental analysis. These environmental findings are the appropriate findings with respect to the proposed acquisition of the Subject Property Interest.
SECTION 5. The Project, as planned and designed, is in the public interest and necessity and is needed to construct and maintain a Multi-Use (bike and pedestrian) trail, as more fully explained below:
Resolution No. 2022-007 – Page 3 of 11
A. The Project extends from Banyan St reet on the north and the Pacific Electric Trail, south of Vict oria Street on the south, passing under Interstate 15, and spanning a total of 1.35 miles. The Project will enhance the existing Flood Control District maintenance road that runs parallel to the Etiwanda Channel by adding striping, trail lighting, asphalt pavement, fencing, retaining walls, sidewalk, and curb to allow bicyclist and pedestrian use of the Multi- Use trail easement. When completed in July 2023, the Project will provide an additional area for bike and pedestrian mobility access to the public, and will encompass areas of both the City of Rancho Cucamonga and the City of Fontana. All work is consistent with the Land Use and Community Character Element of the City’s General Plan.
B. Goal LC-5, Connected Corridors, of the Land Use and Community Character Element, provides for “A city wide network of transportation and open space corridors that provides a high level of connectivity for pedestrians, bicyclists, equestrians, motorists, and transit users. Further, Goal OS-1, Open Space, provides for “A complete, connected network of diverse parks, trails, and rural and natural open space that support a wide variety of recreational, educational and outdoor activiti es.” Goal OS-2, Trails, provides for “A complete, connected network of diverse trails and connected open space that improves access to all areas of the ci ty and encourages non-motorized activities.” Specifically, Goal OS-2.5 provides, “Utility Corridors. Preserve th e primary function of utility corridors while providin g every reasonable opportunity for shared public use for active mobility and recreational purposes.” The City seeks to acquire the Subject Property Interest for public use, namely a non-exclusive, Multi-Use (bike and pedestrian) trail and related purposes, and all uses nece ssary or convenient t hereto in connection with the Project. The City seeks to construct the Project to improve bike and pedestrian mobility, and provide a complementary use to property encumbered with an existing flood control easement, that will benefit the community.
C. The Project was planned and locat ed to minimize the impact on the adjacent properties. Because of its scope, t he Project requires the acquisition of a non- exclusive, permanent easement over a portion of property that is privately owned and is currently encumbered by a flood control easement and storm-channel improvements.
Due to the existing flood control easement and the existing storm-channel improvements, the property is not developable. Further, the property is zoned OS, Flood Control - Open Space. The construction of the Projec t will not require any business/residential relocations. The City will coordinate the c onstruction with the owner of the Subject Property Interest to minimize the impact of the Project on the parcel. Based on the timing of the Project, it is necessary that the City consider the acquisition by eminent domain of the required Subject Property Interest.
SECTION 6.
A. Pursuant to Government Code Section 7260 et se q., the City of Rancho Cucamonga obtained a fair market val ue appraisal of the Yang Parcel, and the approximate 13,689 square foot permanent easement the City seeks to acquire for public use, namely public trail and related purposes , and all uses necessary or convenient thereto.
Resolution No. 2022-007 – Page 4 of 11
B. The City set just compensation in accordance with the appraised fair market value, and extended a written offer on September 22, 2021 to Chao Ping Yang, the owner of record. The fair market val ue appraisal used a date of value of July 16, 2021.
C. The City’s written offer included an informational pamphlet describing the eminent domain process and the record owner’s rights under the Eminent Domain Law. In accordance with Governm ent Code Section 7267.2, the City’s written offer contained a written statement of, and su mmary of the basis for, the amount it established as just compensat ion. The offer set forth th e date of value utilized by the appraiser and explained the appraiser’s opinion of the highest and best use of the larger parcel. It explained the applicable zoning desig nation of the larger parcel. The City’s offer also summarized the principal transactions relied on by the appraiser to arrive at the appraiser’s opinion of value. In addition, the written offer explained the appraiser’s valuation analysis, including severance damages. It included the City’s comparable market data relied on by the appraiser. Further, the City offered, pursuant to Code of Civil Procedure Section 1263.025, to pay the record owner the reasonable costs, up to $5,000.00, for an independent appr aisal of the approximat e 13,689 square foot permanent easement area.
SECTION 7. The City provided written notice to the owner of record, pursuant to Code of Civil Procedure Sect ion 1245.235 of the City Council’s intent to consider the adoption of a Resolution of Necessity for the ac quisition of the Subject Property Interest by eminent domain.
SECTION 8. The public use for which the City seeks to acquire the Subject Property Interest, namely public trail and re lated purposes, and all uses necessary or convenient thereto, will not unr easonably interfere with or impai r the continuance of the public use to which any easement holders may have appropriated the area (Code of Civil Procedure Section 1240.510). Accordingly, the City is authorized to acquire the Subject Property Interest pursuant to Code of Civil Procedure Sections 1240.510, 1240.610, and 1240.650.
SECTION 9. Based on the evidence presented at the hearing regarding the Project, including the Agenda Report and documents referenced therein and any oral and written testimony at the hearing, the City Council hereby finds and determines that:
A. The public interest and necessity require the Project; B. The Project is planned and locat ed in the manner that will be most compatible with the greatest public good and the least private injury; C. The Subject Property Interest described more particularly in Exhibit “A” and depicted on Exhibit “B” hereto, is necessary for the Project; and D. The City has made the offer required by Government Code Section 7267.2 to the record owner of the Subject Property Interest the City seeks to acquire.
Resolution No. 2022-007 – Page 5 of 11
SECTION 10. The findings and declarations contained in this Resolution are based upon the record before the City Council, including the Agenda Report and all documents referenced therein, all of which are incorporated herein by this reference, and any testimony and/or comments submitted to the City by t he record owner and or the owner’s representative(s). These documents include, but ar e not limited to, the City of Rancho Cucamonga’s General Plan, the offer letter sent to the owner pursuant to Government Code Section 7267. 2, the notice to the record owner pursuant to Code of Civil Procedure Section 1245.235 of the City’s intent to c onsider the adoption of the Resolution of Necessity, San Sevaine Trail Plans for the Project, and the Notice of Exemption for the Project.
SECTION 11. The City Council of the Cit y of Rancho Cucamonga hereby authorizes and directs the City Attorney’s Office to take all steps necessary to commence and prosecute legal proceedings in a court of competent jurisdiction to acquire an approximate 13,689 square foot permanent easement for t he Project. The Subject Property Interest is described more particularly on Exhibit “A” and depicted on Exhibit “B” hereto.
SECTION 12. The City Council of the Cit y of Rancho Cucamonga hereby authorizes the City Manager to execute all necessary documents in connection with the eminent domain proceeding.
SECTION 13. The City Clerk shall certify to the adoption of this Resolution.
PASSED, APPROVED AND ADOPTED this 19th day of January, 2022.
________________________
L. Dennis Michael, Mayor
City of Rancho Cucamonga
ATTEST:
Janice C. Reynolds, City Clerk
City of Rancho Cucamonga
APPROVED AS TO FORM:
Nicholas R. Ghirelli, City Attorney
Richards, Watson & Gershon
Resolution No. 2022-007 – Page 6 of 11
CERTIFICATION:
I, Janice C. Reynolds, City Clerk of the City of Rancho Cucamonga, California, do hereby certify that the foregoing Resolution No. 2022-007, was duly adopted by the City Council of the City of Rancho Cucamong a, California, at a regular meeting thereof held on the 19th day of January, 2022, by the following vote, to wit:
AYES:
NOES:
ABSTAIN:
ABSENT:
_______________________________
Janice C. Reynolds, City Clerk
City of Rancho Cucamonga, California
Resolution No. 2022-007 – Page 7 of 11
Resolution No. 2022-007 – Page 8 of 11
Resolution No. 2022-007 – Page 9 of 11
Resolution No. 2022-007 – Page 10 of 11
Resolution No. 2022-007 – Page 11 of 11
DATE:January 19, 2022
TO:Mayor and Members of the City Council
FROM:John R. Gillison, City Manager
INITIATED BY: Jason C. Welday, Director of Engineering Services/City Engineer Ian Tai, Associate Engineer
SUBJECT: Consideration of Resolutions of Necessity of the City of Rancho Cucamonga, Declaring Certain Real Property Interests Necessary for Public Purposes and Authorizing the Acquisition Thereof in Connection with the City’s Etiwanda Grade Separation Project (Kular Truck Line, Inc., 8783 Etiwanda Avenue and 12949 Whittram Avenue, San Bernardino County Tax Assessor’s Parcel Number 0229-162-14; Lightning PM, LLC, 8889 Etiwanda Avenue, San Bernardino County Tax Assessor’s Parcel Numbers 0229-291-17 & 18; SCG of DP Etiwanda, LLC, 8768 & 8822 Etiwanda Avenue, San Bernardino County Tax Assessor’s Parcel Numbers 0229-131-15, 16 & 26; Jones Family Trust, Garness Family Trust, & Clemons Revocable Trust, 8821 Etiwanda Avenue, San Bernardino County Tax Assessor’s Parcel Number 0229-162-15; Goodman Rancho SPE, LLC, 12521 Arrow Route and 8688 Etiwanda Avenue, San Bernardino County Tax Assessor’s Parcel Numbers 0229- 131-30 & 31; BTC III Rancho Cucamonga Logistics Center, LP, 8996 Etiwanda Avenue, San Bernardino County Tax Assessor’s Parcel Number 0229-283-79; BCORE IE West Owner, LLC, 8939 Etiwanda Avenue, San Bernardino County Tax Assessor’s Parcel Number 0229- 291-55; Southern California Edison Company, 8949 Etiwanda Avenue, San Bernardino County Tax Assessor’s Parcel Number 0229-291-22; Colombero Family Limited Partnership, 8685 - 8821 Etiwanda Avenue and 12928 - 12974 Whittram Avenue, San Bernardino County Tax Assessor’s Parcel Numbers 0229-151-15 & 28 and 0229-161-01, 02, 03, 04, 05, 19 & 20). (RESOLUTION NOS. 2022-008, 2022-009, 2022-010, 2022-011, 2022-012, 2022-013, 2022-014, 2022-015, 2022-016) (CITY).
RECOMMENDATION:
Staff recommends that the City Council:
1. Consider the following nine Resolutions, which are Resolutions of Necessity of the City of Rancho Cucamonga Declaring Certain Real Property Interests Necessary for Public Purposes and Authorizing the Acquisition Thereof in Connection with the City’s Etiwanda Grade Separation Project:
1 0
9 0
Resolution No. 2022-008 (Kular Truck Line Parcel)
Resolution No. 2022-009 (Lightning PM Parcel)
Resolution No. 2022-010 (SCG of DP Etiwanda Parcel)
Resolution No. 2022-011 (Jones, Garness & Clemons Parcel) Resolution No. 2022-012 (Goodman Rancho SPE Parcel)
Resolution No. 2022-013 (BTC III Parcel)
Resolution No. 2022-014 (BCORE IE Parcel)
Resolution No. 2022-015 (SCE Parcel)
Resolution No. 2022-016 (Colombero Parcel)
2. Open and conduct a hearing on the adoption of the proposed Resolutions of Necessity, receive from City Staff the evidence stated and referred to in this Agenda Report (“Report”), take testimony from any person wishing to be heard on issues A, B, C, and D below, and consider all evidence to determine whether to adopt each proposed Resolution of Necessity, each of which requires the City Council’s consideration and determination.
3. If the City Council finds, based on the evidence contained and referred to in this Report, the testimony and comments submitted to the City Council, that the evidence warrants the necessary findings with respect to each of the proposed Resolutions of Necessity, then City Staff recommends that the City Council, in the exercise of its discretion, adopt proposed Resolution of Necessity No. 2022-008, Resolution of Necessity No. 2022-009, Resolution of Necessity No. 2022-010, Resolution of Necessity No. 2022-011, Resolution of Necessity No. 2022-012, Resolution of Necessity No. 2022-013, Resolution of Necessity No. 2022-014, Resolution of Necessity No. 2022-015, and Resolution of Necessity No. 2022-016 (each of which requires a 4/5ths vote of the entire City Council) and authorize the City Attorney’s office to file eminent domain proceedings to acquire the following real property interests (referred to below collectively as the “Subject Property Interests”) from the parcels described below:
8783 Etiwanda Avenue and 12949 Whittram Avenue, APN 0229-162-14 (Kular Truck Line Parcel)
A fee simple interest for grade separation purposes, and all uses necessary or convenient thereto in the real property located at 8783 Etiwanda Avenue and 12949 Whittram Avenue, Rancho Cucamonga, and identified as San Bernardino County Tax Assessor’s Parcel Number 0229-162-14, which is owned by Kular Truck Line, Inc. (referred to as “Kular Parcel”).
8889 Etiwanda Avenue, APNs 0229-291-17 & 18 (Lightning PM Parcel) An approximate 2,655 square foot temporary construction easement with a term of 18 months for grade separation purposes, and all uses necessary or convenient thereto from the real property located at 8889 Etiwanda Avenue, Rancho Cucamonga, and
1 0
9 0
identified as San Bernardino County Tax Assessor’s Parcel Numbers 0229-291-17 and 0229-291-18, which is owned by Lightning PM LLC (referred to as “Lightning PM Parcel”).
8768 and 8822 Etiwanda Avenue, APNs 0229-131-15, 16 & 26 (SCG of DP Etiwanda Parcel)
An approximate 8,073 square foot temporary construction easement with a term of 18 months for grade separation purposes, and all uses necessary or convenient thereto from the real property located at 8768 and 8822 Etiwanda Avenue, Rancho Cucamonga, and identified as San Bernardino County Tax Assessor’s Parcel Numbers 0229-131-15, 0229-131-16, and 0229-131-26, which is owned by SCG of DP Etiwanda LLC (referred to as “SCG of DP Etiwanda Parcel”). 8821 Etiwanda Avenue, APN 0229-162-15 (Jones, Garness & Clemons Parcel) An approximate 5,011 square foot temporary construction easement with a term of 18 months for grade separation purposes, and all uses necessary or convenient thereto from the real property located at 8821 Etiwanda Avenue, Rancho Cucamonga, and identified as San Bernardino County Tax Assessor’s Parcel Number 0229-162-15, which is owned by the Jones Family Trust, The Garness Family Trust, and the Clemons Revocable Trust (referred to as “Jones, Garness, and Clemons Parcel”). 12521 Arrow Route & 8688 Etiwanda Avenue, APNs 0229-131-30 & 31 (Goodman Rancho SPE Parcel)
Two temporary construction easements, each with a term of 30 months, for grade separation purposes, and all uses necessary or convenient thereto, consisting of approximately 1,254 square feet and approximately 4,024 square feet over portions of the real property located at 12521 Arrow Route and 8688 Etiwanda Avenue, Rancho Cucamonga, California, and further identified as San Bernardino County Tax Assessor’s Parcel Numbers 0229-131-30 and 0229-131-31, which is owned by Goodman Rancho SPE LLC.
8996 Etiwanda Avenue, APN 0229-283-79 (BTC III Parcel)
An approximate 401 square foot permanent easement, an approximate 14,801 square foot permanent easement, and an approximate 7,936 square foot temporary construction easement with a term of 30 months for grade separation purposes, and all uses necessary or convenient thereto from the real property located at 8996 Etiwanda Avenue, Rancho Cucamonga, and identified as San Bernardino County Tax Assessor’s Parcel Number 0229-283-79, which is owned by BTC III Rancho Cucamonga Logistics Center, LP (referred to as “BTC III Parcel”). 8939 Etiwanda Avenue, APN 0229-291-55 (BCORE IE Parcel) An approximate 1,201 square foot permanent easement and an approximate 1,295 square foot temporary construction easement with a term of 30 months for grade separation purposes, and all uses necessary or convenient thereto from the real property located at 8939 Etiwanda Avenue, Rancho Cucamonga, and identified as
1 0
9 0
San Bernardino County Tax Assessor’s Parcel Number 0229-291-55, which is owned by BCORE IE West Owner, LLC (referred to as “BCORE IE Parcel”). 8949 Etiwanda Avenue, APN 0229-291-22 (SCE Parcel)
An approximate 52,464 square foot permanent easement and an approximate 1,972 square foot temporary construction easement with a term of 18 months for grade separation purposes, and all uses necessary or convenient thereto from the real property located at 8949 Etiwanda Avenue, Rancho Cucamonga, and identified as San Bernardino County Tax Assessor’s Parcel Number 0229-291-22, which is owned by Southern California Edison Company (referred to as “SCE Parcel”). 8685 to 8821 Etiwanda Avenue & 12928 to 12974 Whittram Avenue, APNs 0229- 151-15 & 28, 0229-161-01, 02, 03, 04, 05, 19 & 20 (Colombero Parcel) An approximate 5,130 square foot permanent easement, an approximate 2,986 square foot maintenance and construction easement, and an approximate 3,192 square foot temporary construction easement and an approximate 677 square foot temporary construction easement, each with a term of 30 months, for grade separation purposes, and all uses necessary or convenient thereto from the real property located at 8685 to 8821 Etiwanda Avenue & 12928 to 12974 Whittram Avenue, Rancho Cucamonga, and identified as San Bernardino County Tax Assessor’s Parcel Numbers 0229-151-15 & 28, 0229-161-01, 02, 03, 04, 05, 19 & 20, which is owned by Colombero Family Limited Partnership (referred to as “Colombero Parcel”).
The Subject Property Interests, comprised of the above-described real property interests, are described more particularly in each respective Resolution of Necessity. The Resolutions of Necessity, with their respective Exhibits, are attached hereto and incorporated herein by this reference.
4. If the City Council adopts the proposed Resolutions of Necessity, authorize the City Attorney’s Office to file and prosecute an eminent domain proceedings for the acquisition of the Subject Property Interests by eminent domain.
5. Authorize the City Manager to execute all necessary documents.
BACKGROUND:
The City Council has before it nine proposed Resolutions of Necessity for the acquisition by eminent domain of certain real property interests in connection with the City’s Etiwanda Grade Separation Project (“Project”).
The Project requires the acquisition of additional right of way for grade separation. The Project involves the widening and construction of Etiwanda Avenue as a four-lane grade separated roadway over the Southern California Regional Rail Authority (“SCRRA”)/Burlington Northern and Santa Fe Railroad (“BNSF”) San Gabriel subdivision, currently a two-lane at-grade crossing. The Project will construct an overhead crossing, utilizing walls and embankments to support the raised approaching roadway. It will span the railroad right-of-way and provide access to adjacent properties. The Project will widen Etiwanda Avenue to four traffic lanes including a painted median/left turn lane with bike lanes and sidewalks on each side and a northbound right turn lane onto Whittram Avenue. When completed in 2024, the Project will reduce vehicle and truck delays, as well as queuing. It will improve mobility, safety, and level of service at the crossing, and it will
1 0
9 0
provide for the safe transit of pedestrians, bicyclists, vehicles, trucks, and trains. Furthermore, the Project will provide for improved response times in the area for first responders such as police officers, firefighters, paramedics, and emergency medical technicians. The Plans for the Project are on file with the Engineering Services Department and are incorporated herein by this reference.
The Project requires the acquisition of the Subject Property Interests for grade separation, and related purposes, and all uses necessary or convenient thereto. The City has attempted to negotiate in good faith with each of the owners to acquire the above-described Subject Property Interests. The owners of the Subject Property Interests have either not responded to the City’s communications, or the City has been unable to reach a negotiated acquisition with the owners for the Subject Property Interests. Based on the timing of the Project, it is necessary that the City consider the proposed Resolutions of Necessity at this time.
ANALYSIS:
The City seeks to acquire the Subject Property Interests for public use, namely grade separation and related purposes, and all uses necessary or convenient thereto in connection with the Project.
The City seeks to construct the Project to improve circulation, mobility, and vehicle and rail safety.
The Project’s goal of converting the portion of Etiwanda Avenue where it crosses the SCRRA railroad corridor into a grade separated crossing, is identified in the City’s General Plan.
The Project was planned and located to minimize the impact on the adjacent properties. Because of its scope, the Project requires the acquisition of several permanent easements and temporary construction easements over portions of 10 larger parcels, as well as fee interests in two parcels owned by private property owners. The construction of the Project will require some business/residential relocations. The City will coordinate the construction with the owners of the Subject Property Interests to minimize the impact of the Project on the parcels and to assist those persons and businesses displaced by the Project. Based on the timing of the Project, it is necessary that the City consider the acquisition by eminent domain of the required Subject Property Interests.
The City seeks to acquire the Subject Property Interests for public use, namely grade separation and related purposes, and all uses necessary or convenient thereto in connection with the Project pursuant to the authority conferred on the City of Rancho Cucamonga to acquire real property by eminent domain by Section 19 of Article 1 of the California Constitution, Government Code Sections 37350, 37350.5, 37351, 40401, and 40404, California Code of Civil Procedure Section 1230.010 et seq. (Eminent Domain Law), including but not limited to Sections 1240.010, 1240.020, 1240.110, 1240.120, 1240.150, 1240.510, 1240.610, 1240.650, and by other provisions of law.
For the reasons set forth above, the construction of the Project is in the public interest and necessity and is needed to improve circulation, mobility, and vehicle and rail safety.
Required Findings for Adoption of Resolutions of Necessity Authorizing the Acquisition of the Subject Property Interests by Eminent Domain
In order to adopt the proposed Resolutions of Necessity for the acquisition by eminent domain of the Subject Property Interests, the City Council must find and determine, that:
A. The public interest and necessity require the Project;
1 0
9 0
B. The Project is planned and located in the manner that will be most compatible with the greatest public good and the least private injury; C. The Subject Property Interests described in the Resolutions of Necessity are necessary for the Project; and
D. The City has made an offer as required by Government Code Section 7267.2 to the owners of record of the real property interests it seeks to acquire.
The amount of just compensation is not an issue before the City Council at this hearing. The hearing relates to issues A, B, C, and D above. The amount of just compensation would be determined in the eminent domain proceedings that would be filed if the City Council, in its sole discretion, adopts the proposed Resolutions of Necessity.
Environmental Analysis
The environmental effects of the Project were studied and analyzed pursuant to the California Environmental Quality Act (“CEQA”), Public Resources Code Section 21000 et seq., and the CEQA Guidelines, 14 Cal. Code Regs. Section 15000 et seq. (“CEQA Guidelines”). City Staff determined that the Project was statutorily exempt pursuant to CEQA Article 18. Statutory Exemptions, Section 15282. Other Statutory Exemptions, paragraph (g):
Any railroad grade separation project which eliminates an existing grade crossing or which reconstructs an existing grade separation as set forth in Section 21080.13 of the Public Resources Code.
On June 6, 2018, the City Council approved the Notice of Exemption and authorized Staff to file the Notice of Exemption with the Office of Planning and Research and the County clerk as specified in Section 21080.13(2) of the Public Resources Code. The City duly filed the Notice of Exemption with the Office of Planning and Research and with the Clerk of the Board of Supervisors, County of San Bernardino on or about June 11, 2018 in accordance with the statutory requirements.
In connection with the proposed Resolutions of Necessity, on January 19, 2022, City Staff reviewed the environmental documentation prepared in connection with the Project. Pursuant to the criteria of Section 15162 of the CEQA Guidelines and Section 21166 of the Public Resources Code, City Staff concluded that no substantial changes have occurred in the Project, no substantial changes have occurred in the circumstances under which the Project is undertaken, and that the City has obtained no new information of substantial importance that would require further environmental analysis. These environmental findings are the appropriate findings with respect to the proposed acquisition of the Subject Property Interests.
City’s Actions Pursuant to Government Code Section 7260 et seq.
Pursuant to Government Code Section 7260 et seq., the City of Rancho Cucamonga obtained fair market value appraisals of the Subject Property Interests and the larger parcels of which the permanent and temporary construction easements of the Subject Property Interests are a part, set just compensation in accordance with the appraised fair market values, and extended written offers to the owners of record. The City negotiated in good faith with the record owners. As of the date of this Staff Report; however, the parties have not reached a negotiated agreement.
1 0
9 0
Based on the timing of the Project, it is necessary that the City consider the adoption of the Resolutions of Necessity at this time.
Following is a summary of the actions taken by the City pursuant to Government Code Section 7260 et seq.
8783 Etiwanda Avenue and 12949 Whittram Avenue, APN 0229-162-14 (Kular Truck Line Parcel)
Pursuant to Government Code Section 7260 et seq., the City of Rancho Cucamonga obtained a fair market value appraisal of the Kular Parcel the City seeks to acquire in fee simple, for public use, namely grade separation purposes. The City set just compensation in accordance with the appraised fair market value, and extended a written offer on September 22, 2021 to Kular Truck Line, Inc., the owner of record. The fair market value appraisal used a date of value of July 16, 2021.
The City’s written offer included an informational pamphlet describing the eminent domain process and the record owner’s rights under the Eminent Domain Law. In accordance with Government Code Section 7267.2, the City’s written offer contained a written statement of, and summary of the basis for, the amount it established as just compensation. The offer set forth the date of value utilized by the appraiser and explained the appraiser’s opinion of the highest and best use of the property. It explained the applicable zoning designation of the parcel. The City’s offer also summarized the principal transactions relied on by the appraiser to arrive at the appraiser’s opinion of value. In addition, the written offer explained the appraiser’s valuation analysis. It included the City’s comparable market data relied on by the appraiser. Further, the City offered, pursuant to Code of Civil Procedure Section 1263.025, to pay the record owner the reasonable costs, up to $5,000.00, for an independent appraisal of the parcel.
The City made several attempts to follow up and negotiate with the owner regarding the City’s offer. Based on the timing of the Project, it is necessary for the City Council to consider the adoption of the proposed Resolution of Necessity authorizing the acquisition by eminent domain of the Subject Property Interest needed from the Kular Parcel. 8889 Etiwanda Avenue, APNs 0229-291-17 & 18 (Lightning PM Parcel) Pursuant to Government Code Section 7260 et seq., the City of Rancho Cucamonga obtained a fair market value appraisal of the Lightning PM Parcel, and the approximate 2,655 square foot temporary construction easement the City seeks to acquire for a period of 18 months for public use, namely grade separation purposes. The City set just compensation in accordance with the appraised fair market value, and extended a written offer on October 26, 2021 to Lightning PM LLC, the owner of record. The fair market value appraisal used a date of value of October 14, 2021.
The City’s written offer included an informational pamphlet describing the eminent domain process and the record owner’s rights under the Eminent Domain Law. In accordance with Government Code Section 7267.2, the City’s written offer contained a written statement of, and summary of the basis for, the amount it established as just compensation. The offer set forth the date of value utilized by the appraiser and explained the appraiser’s opinion of the highest and best use of the larger parcel. It explained the applicable zoning designation of the larger parcel. The City’s offer also summarized the
1 0
9 0
principal transactions relied on by the appraiser to arrive at the appraiser’s opinion of value. In addition, the written offer explained the appraiser’s valuation analysis, including severance damages. It included the City’s comparable market data relied on by the appraiser. Further, the City offered, pursuant to Code of Civil Procedure Section 1263.025, to pay the record owner the reasonable costs, up to $5,000.00, for an independent appraisal of the approximate 2,655 square foot temporary construction easement area.
The City made several attempts to follow up and negotiate with the owner regarding the City’s offer. Based on the timing of the Project, it is necessary for the City Council to consider the adoption of the proposed Resolution of Necessity authorizing the acquisition by eminent domain of the Subject Property Interest needed from the Lightning PM Parcel. 8768 and 8822 Etiwanda Avenue, APNs 0229-131-15, 16 & 26 (SCG of DP Etiwanda Parcel)
Pursuant to Government Code Section 7260 et seq., the City of Rancho Cucamonga obtained a fair market value appraisal of the SCG of DP Etiwanda Parcel, and the approximate 8,073 square foot temporary construction easement the City seeks to acquire for a period of 18 months for public use, namely grade separation purposes. The City set just compensation in accordance with the appraised fair market value, and extended a written offer on October 26, 2021, to SCG of DP Etiwanda LLC, the owner of record. The fair market value appraisal used a date of value of October 14, 2021.
The City’s written offer included an informational pamphlet describing the eminent domain process and the record owner’s rights under the Eminent Domain Law. In accordance with Government Code Section 7267.2, the City’s written offer contained a written statement of, and summary of the basis for, the amount it established as just compensation. The offer set forth the date of value utilized by the appraiser and explained the appraiser’s opinion of the highest and best use of the larger parcel. It explained the applicable zoning designation of the larger parcel. The City’s offer also summarized the principal transactions relied on by the appraiser to arrive at the appraiser’s opinion of value. In addition, the written offer explained the appraiser’s valuation analysis, including severance damages. It included the City’s comparable market data relied on by the appraiser. Further, the City offered, pursuant to Code of Civil Procedure Section 1263.025, to pay the record owner the reasonable costs, up to $5,000.00, for an independent appraisal of the approximate 8,073 square foot temporary construction easement area.
The City made several attempts to follow up and negotiate with the owner regarding the City’s offer. Based on the timing of the Project, it is necessary for the City Council to consider the adoption of the proposed Resolution of Necessity authorizing the acquisition by eminent domain of the Subject Property Interest needed from the SCG of DP Etiwanda Parcel.
8821 Etiwanda Avenue, APN 0229-162-15 (Jones, Garness & Clemons Parcel) Pursuant to Government Code Section 7260 et seq., the City of Rancho Cucamonga obtained a fair market value appraisal of the Jones, Garness & Clemons Parcel, and the approximate 5,011 square foot temporary construction easement the City seeks to acquire for a period of 18 months for public use, namely grade separation purposes. The City set
1 0
9 0
just compensation in accordance with the appraised fair market value, and extended a written offer on October 26, 2021 to the trustees of the Jones Family Trust, the Garness Family Trust, and the Clemons Revocable Trust, the owners of record. The fair market value appraisal used a date of value of October 14, 2021.
The City’s written offer included an informational pamphlet describing the eminent domain process and the record owner’s rights under the Eminent Domain Law. In accordance with Government Code Section 7267.2, the City’s written offer contained a written statement of, and summary of the basis for, the amount it established as just compensation. The offer set forth the date of value utilized by the appraiser and explained the appraiser’s opinion of the highest and best use of the larger parcel. It explained the applicable zoning designation of the larger parcel. The City’s offer also summarized the principal transactions relied on by the appraiser to arrive at the appraiser’s opinion of value. In addition, the written offer explained the appraiser’s valuation analysis, including severance damages. It included the City’s comparable market data relied on by the appraiser. Further, the City offered, pursuant to Code of Civil Procedure Section 1263.025, to pay the record owner the reasonable costs, up to $5,000.00, for an independent appraisal of the approximate 5,011 square foot temporary construction easement area.
The City made several attempts to follow up and negotiate with the owner regarding the City’s offer. Based on the timing of the Project, it is necessary for the City Council to consider the adoption of the proposed Resolution of Necessity authorizing the acquisition by eminent domain of the Subject Property Interest needed from the Jones, Garness & Clemons Parcel.
12521 Arrow Route & 8688 Etiwanda Avenue, (APNs 0229-131-30 & 31) (Goodman Rancho Parcel)
Pursuant to Government Code Section 7260 et seq., the City of Rancho Cucamonga obtained a fair market value appraisal of the Goodman Rancho Parcel, and the approximate 1,254 square foot and 4,024 square foot temporary construction easements the City seeks to acquire, each for a period of 30 months, for public use, namely grade separation purposes. The City set just compensation in accordance with the appraised fair market value, and extended a written offer on October 26, 2021 to Goodman Rancho SPE LLC, the owner of record. The fair market value appraisal used a date of value of October 14, 2021.
The City’s written offer included an informational pamphlet describing the eminent domain process and the record owner’s rights under the Eminent Domain Law. In accordance with Government Code Section 7267.2, the City’s written offer contained a written statement of, and summary of the basis for, the amount it established as just compensation. The offer set forth the date of value utilized by the appraiser and explained the appraiser’s opinion of the highest and best use of the larger parcel. It explained the applicable zoning designation of the larger parcel. The City’s offer also summarized the principal transactions relied on by the appraiser to arrive at the appraiser’s opinion of value. In addition, the written offer explained the appraiser’s valuation analysis, including severance damages. It included the City’s comparable market data relied on by the appraiser. Further, the City offered, pursuant to Code of Civil Procedure Section 1263.025, to pay the record owner the reasonable costs, up to $5,000.00, for an
1 0
9 0
independent appraisal of the approximate 1,254 square foot and 4,024 square foot temporary construction easement areas.
The City made several attempts to follow up and negotiate with the owner regarding the City’s offer. Based on the timing of the Project, it is necessary for the City Council to consider the adoption of the proposed Resolution of Necessity authorizing the acquisition by eminent domain of the Subject Property Interest needed from the Goodman Rancho Parcel.
8996 Etiwanda Avenue, APN 0229-283-79 (BTC III Parcel)
Pursuant to Government Code Section 7260 et seq., the City of Rancho Cucamonga obtained a fair market value appraisal of the BTC III Parcel, the approximate 401 square foot permanent easement, the approximate 14,801 square foot permanent easement, and the approximate 7,936 square foot temporary construction easement with a term of 30 months the City seeks to acquire for public use, namely grade separation purposes. The City set just compensation in accordance with the appraised fair market value, and extended a written offer on December 3, 2021 to BTC III Rancho Cucamonga Logistics Center, LP, the owner of record. The fair market value appraisal used a date of value of October 14, 2021.
The City’s written offer included an informational pamphlet describing the eminent domain process and the record owner’s rights under the Eminent Domain Law. In accordance with Government Code Section 7267.2, the City’s written offer contained a written statement of, and summary of the basis for, the amount it established as just compensation. The offer set forth the date of value utilized by the appraiser and explained the appraiser’s opinion of the highest and best use of the larger parcel. It explained the applicable zoning designation of the larger parcel. The City’s offer also summarized the principal transactions relied on by the appraiser to arrive at the appraiser’s opinion of value. In addition, the written offer explained the appraiser’s valuation analysis, including severance damages. It included the City’s comparable market data relied on by the appraiser. Further, the City offered, pursuant to Code of Civil Procedure Section 1263.025, to pay the record owner the reasonable costs, up to $5,000.00, for an independent appraisal of the approximate 401 square foot permanent easement area, the approximate 14,801 square foot permanent easement area, and the approximate 7,936 square foot temporary construction easement area.
The City made several attempts to follow up and negotiate with the owner regarding the City’s offer. Based on the timing of the Project, it is necessary for the City Council to consider the adoption of the proposed Resolution of Necessity authorizing the acquisition by eminent domain of the Subject Property Interests needed from the BTC III Parcel. 8939 Etiwanda Avenue, APN 0229-291-55 (BCORE IE Parcel) Pursuant to Government Code Section 7260 et seq., the City of Rancho Cucamonga obtained a fair market value appraisal of the BCORE IE Parcel, the approximate 1,201 square foot permanent easement and the approximate 1,295 square foot temporary construction easement with a term of 30 months the City seeks to acquire for public use, namely grade separation purposes. The City set just compensation in accordance with the appraised fair market value, and extended a written offer on December 3, 2021 to
1 0
9 0
BCORE IE West Owner, LLC, the owner of record. The fair market value appraisal used a date of value of October 14, 2021.
The City’s written offer included an informational pamphlet describing the eminent domain process and the record owner’s rights under the Eminent Domain Law. In accordance with Government Code Section 7267.2, the City’s written offer contained a written statement of, and summary of the basis for, the amount it established as just compensation. The offer set forth the date of value utilized by the appraiser and explained the appraiser’s opinion of the highest and best use of the larger parcel. It explained the applicable zoning designation of the larger parcel. The City’s offer also summarized the principal transactions relied on by the appraiser to arrive at the appraiser’s opinion of value. In addition, the written offer explained the appraiser’s valuation analysis, including severance damages. It included the City’s comparable market data relied on by the appraiser. Further, the City offered, pursuant to Code of Civil Procedure Section 1263.025, to pay the record owner the reasonable costs, up to $5,000.00, for an independent appraisal of the approximate 1,201 square foot permanent easement area and the approximate 1,295 square foot temporary construction easement area.
The City made several attempts to follow up and negotiate with the owner regarding the City’s offer. Based on the timing of the Project, it is necessary for the City Council to consider the adoption of the proposed Resolution of Necessity authorizing the acquisition by eminent domain of the Subject Property Interests needed from the BCORE IE Parcel. 8949 Etiwanda Avenue, APN 0229-291-22 (SCE Parcel)
Pursuant to Government Code Section 7260 et seq., the City of Rancho Cucamonga obtained a fair market value appraisal of the SCE Parcel, the approximate 52,464 square foot permanent easement and the approximate 1,972 square foot temporary construction easement with a term of 18 months the City seeks to acquire for public use, namely grade separation purposes. The City set just compensation in accordance with the appraised fair market value, and extended a written offer on November 23, 2021 to Southern California Edison Company, the owner of record. The fair market value appraisal used a date of value of October 14, 2021.
The City’s written offer included an informational pamphlet describing the eminent domain process and the record owner’s rights under the Eminent Domain Law. In accordance with Government Code Section 7267.2, the City’s written offer contained a written statement of, and summary of the basis for, the amount it established as just compensation. The offer set forth the date of value utilized by the appraiser and explained the appraiser’s opinion of the highest and best use of the larger parcel. It explained the applicable zoning designation of the larger parcel. The City’s offer also summarized the principal transactions relied on by the appraiser to arrive at the appraiser’s opinion of value. In addition, the written offer explained the appraiser’s valuation analysis, including severance damages. It included the City’s comparable market data relied on by the appraiser. Further, the City offered, pursuant to Code of Civil Procedure Section 1263.025, to pay the record owner the reasonable costs, up to $5,000.00, for an independent appraisal of the approximate 52,464 square foot permanent easement area and the approximate 1,972 square foot temporary construction easement area.
1 0
9 0
The City made several attempts to follow up and negotiate with the owner regarding the City’s offer. Based on the timing of the Project, it is necessary for the City Council to consider the adoption of the proposed Resolution of Necessity authorizing the acquisition by eminent domain of the Subject Property Interests needed from the SCE Parcel. 8685 to 8821 Etiwanda Avenue & 12928 to 12974 Whittram Avenue, (APNs 0229- 151-15 & 28, 0229-161-01, 02, 03, 04, 05, 19 & 20) (Colombero Parcel) Pursuant to Government Code Section 7260 et seq., the City of Rancho Cucamonga obtained a fair market value appraisal of the Colombero Parcel, the approximate 5,130 square foot permanent easement, the approximate 2,986 square foot maintenance and construction easement, and the approximate 3,192 square foot and the approximate 677 square foot temporary construction easements, each with a term of 30 months, the City seeks to acquire for public use, namely grade separation purposes. The City set just compensation in accordance with the appraised fair market value, and extended a written offer on November 23, 2021 to Colombero Family Limited Partnership, the owner of record. The fair market value appraisal used a date of value of November 10, 2021.
The City’s written offer included an informational pamphlet describing the eminent domain process and the record owner’s rights under the Eminent Domain Law. In accordance with Government Code Section 7267.2, the City’s written offer contained a written statement of, and summary of the basis for, the amount it established as just compensation. The offer set forth the date of value utilized by the appraiser and explained the appraiser’s opinion of the highest and best use of the larger parcel. It explained the applicable zoning designation of the larger parcel. The City’s offer also summarized the principal transactions relied on by the appraiser to arrive at the appraiser’s opinion of value. In addition, the written offer explained the appraiser’s valuation analysis, including severance damages. It included the City’s comparable market data relied on by the appraiser. Further, the City offered, pursuant to Code of Civil Procedure Section 1263.025, to pay the record owner the reasonable costs, up to $5,000.00, for an independent appraisal of the approximate 5,130 square foot permanent easement area, the approximate 2,986 square foot maintenance and construction easement area, the approximate 7,936 square foot temporary construction easement area, and the approximate 677 square foot temporary construction easement area.
The City made several attempts to follow up and negotiate with the owner regarding the City’s offer. Based on the timing of the Project, it is necessary for the City Council to consider the adoption of the proposed Resolution of Necessity authorizing the acquisition by eminent domain of the Subject Property Interests needed from the Colombero Parcel.
City’s Actions Pursuant to Code of Civil Procedure Section 1245.235 Pursuant to Code of Civil Procedure Section 1245.235, the City sent a letter and a notice by first- class mail dated December 22, 2021 to the record owners of each of the Subject Property Interests the City seeks to acquire, informing them of the City’s intent to consider at its January 19, 2022 meeting, the adoption of a resolution of necessity for the acquisition by eminent domain of the Subject Property Interests for each respective parcel.
The notices advised the record owners of their right to appear and be heard regarding the City’s proposed adoption of the respective Resolution of Necessity by filing, within fifteen days of the date the notice was mailed, a written request with the City to appear at the hearing. The notices
1 0
9 0
specifically informed the record owners of the Subject Property Interests that they have an opportunity to appear before the City Council and raise questions about whether the public interest and necessity require the Project; whether the Project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury; and whether the Subject Property Interest the City seeks to acquire from the owner of record is necessary for the Project.
As discussed above, based on the proposed timing of the Project, it is necessary for the City Council to consider the adoption of the proposed Resolutions of Necessity at this time.
This hearing relates to issues A, B, C, and D below.
REQUIRED FINDINGS FOR ADOPTION OF RESOLUTION OF NECESSITY A. The Public Interest and Necessity Require the Project The Project, as planned and designed, is in the public interest and necessity and is needed to improve vehicle and rail safety, traffic mobility, and surface transportation. The Project requires the acquisition of additional right of way for the grade separation and related purposes. The Project will widen the portion of Etiwanda Avenue from Napa Street to Whittram Avenue to a four-lane grade separated roadway over the SCRRA/BNSF San Gabriel subdivision, which is currently a two-lane at-grade crossing. The Project will construct an overhead crossing, utilizing walls and embankments to support the raised approaching roadway. It will span the railroad right-of-way and provide access to adjacent properties. The Project includes the addition of a painted median/left turn lane with bike lanes and sidewalks on each side and a northbound right turn lane onto Whittram Avenue. When completed in 2024, the Project will reduce vehicle and truck delays, as well as queuing. It will improve mobility, safety, and level of service at the crossing, and it will provide for the safe transit of pedestrians, bicyclists, vehicles, trucks, and trains. Furthermore, the Project will provide for improved response times in the area for first responders such as police officers, firefighters, paramedics, and emergency medical technicians. Accordingly, the Project will benefit local residents and business and the community as whole. The Plans for the Project are on file with the Engineering Services Department and are incorporated herein by this reference.
The Project, as planned and designed, is consistent with the Circulation Element of the General Plan, which designated Etiwanda Avenue as a four-lane major arterial road. Anticipating the future growth of the SCRRA/BNSF corridor, the City’s General Plan identified this area to be grade separated. The City seeks to acquire the Subject Property Interests for public use, namely grade separation and related purposes, and all uses necessary or convenient thereto in connection with the Project. The City seeks to construct the Project to improve mobility, safety, and level of service at the crossing.
The Project was planned and located to minimize the impact on the adjacent properties. Because of its scope, the Project requires the acquisition of several permanent easements and temporary construction easements over portions of 10 larger parcels, as well as fee interests in two parcels owned by private property owners. The construction of the Project will require some business/residential
1 0
9 0
relocations. The City will coordinate the construction with the owners of the Subject Property Interests to minimize the impact of the Project on the parcels and to assist those persons and businesses displaced by the Project. Based on the timing of the Project, it is necessary that the City consider the acquisition by eminent domain of the required Subject Property Interests.
The public use for which the City seeks to acquire the Subject Property Interests, namely grade separation and related purposes, and all uses necessary or convenient thereto, will not unreasonably interfere with or impair the continuance of the public use to which any easement holders may have appropriated the area (Code of Civil Procedure Section 1240.510). Further, the Project may require the relocation of several utilities to the new right-of-way area. The public use for which the City seeks to acquire the Subject Property Interests, namely grade separation and related purposes, and all uses necessary or convenient thereto, is a more necessary public use within the meaning of Code of Civil Procedure Section 1240.650 than the uses to which public utility easement holders have appropriated any utility easements located on or within the area of the Subject Property Interests that are affected by the Project. Accordingly, the City is authorized to acquire the Subject Property Interests pursuant to Code of Civil Procedure Sections 1240.510, 1240.610, and 1240.650.
B. The Project is Planned and Located in the Manner that will be Most Compatible with the Greatest Public Good and the Least Private Injury The Project is planned and located in the manner that is most compatible with the greatest public good and the least private injury. The Project requires the acquisition of additional right of way for grade separation and related purposes.
The Project will widen the portion of Etiwanda Avenue from Napa Street to Whittram Avenue to a four-lane grade separated roadway over the SCRR/BNSF San Gabriel subdivision, which is currently a two-lane at-grade crossing. The Project will construct an overhead crossing, utilizing walls and embankments to support the raised approaching roadway. It will span the railroad right-of-way and provide access to adjacent properties. The Project includes the addition of a painted median/left turn lane with bike lanes and sidewalks on each side and a northbound right turn lane onto Whittram Avenue. When completed in 2024, the Project will reduce vehicle and truck delays, as well as queuing. It will improve mobility, safety, and level of service at the crossing, and it will provide for the safe transit of pedestrians, bicyclists, vehicles, trucks, and trains. Furthermore, the Project will provide for improved response times in the area for first responders such as police officers, firefighters, paramedics, and emergency medical technicians. Accordingly, the Project will benefit local residents and business and the community as whole. The Plans for the Project are on file with the Engineering Services Department and are incorporated herein by this reference.
The Project was planned and located to minimize the impact on the adjacent properties. Because of its scope, the Project requires the acquisition of several permanent easements and temporary construction easements over portions of 10
1 0
9 0
larger parcels, as well as fee interests in two parcels owned by private property owners. The construction of the Project will require some business/residential relocations. The City will coordinate the construction with the owners of the Subject Property Interests to minimize the impact of the Project on the parcels and to assist those persons and businesses displaced by the Project. Based on the timing of the Project, it is necessary that the City consider the acquisition by eminent domain of the required Subject Property Interests.
Further, the public use for which the City seeks to acquire the Subject Property Interests, namely grade separation and related purposes, and all uses necessary or convenient thereto, will not unreasonably interfere with or impair the continuance of the public use to which any easement holders may have appropriated the area (Code of Civil Procedure Section 1240.510). Further, the Project may require the relocation of several utilities to the new right-of-way area.
The public use for which the City seeks to acquire the Subject Property Interests, namely grade separation and related purposes, and all uses necessary or convenient thereto, is a more necessary public use within the meaning of Code of Civil Procedure Section 1240.650 than the uses to which public utility easement holders have appropriated any utility easements located on or within the area of the Subject Property Interests that are affected by the Project. Accordingly, the City is authorized to acquire the Subject Property Interests pursuant to Code of Civil Procedure Sections 1240.510, 1240.610, and 1240.650.
C. The Subject Property Interests Described in the Resolutions of Necessity are Necessary for the Project
The City seeks to construct the Project, as planned and designed, to improve mobility, safety, and level of service at the rail crossing. The Project will widen the portion of Etiwanda Avenue from Napa Street to Whittram Avenue to a four-lane grade separated roadway over the SCRR/BNSF San Gabriel subdivision, which is currently a two-lane at-grade crossing. The Project will construct an overhead crossing, utilizing walls and embankments to support the raised approaching roadway. It will span the railroad right-of-way and provide access to adjacent properties. The Project includes the addition of a painted median/left turn lane with bike lanes and sidewalks on each side and a northbound right turn lane onto Whittram Avenue. When completed in 2024, the Project will reduce vehicle and truck delays, as well as queuing. It will improve mobility, safety, and level of service at the crossing, and it will provide for the safe transit of pedestrians, bicyclists, vehicles, trucks, and trains. Furthermore, the Project will provide for improved response times in the area for first responders such as police officers, firefighters, paramedics, and emergency medical technicians.
The City cannot construct the Project without the acquisition of the following Subject Property Interests, which are described more particularly in the Resolutions of Necessity:
8783 Etiwanda Avenue and 12949 Whittram Avenue, APN 0229-162-14 (Kular Truck Line Parcel)
1 0
9 0
A fee simple interest for grade separation purposes, and all uses necessary or convenient thereto in the real property located at 8783 Etiwanda Avenue and 12949 Whittram Avenue, Rancho Cucamonga, and identified as San Bernardino County Tax Assessor’s Parcel Number 0229-162-14, which is owned by Kular Truck Line, Inc.
8889 Etiwanda Avenue, APNs 0229-291-17 & 18 (Lightning PM Parcel) An approximate 2,655 square foot temporary construction easement with a term of 18 months for grade separation purposes, and all uses necessary or convenient thereto from the real property located at 8889 Etiwanda Avenue, Rancho Cucamonga, and identified as San Bernardino County Tax Assessor’s Parcel Numbers 0229-291-17 and 0229-291-18, which is owned by Lightning PM LLC.
8768 and 8822 Etiwanda Avenue, APNs 0229-131-15, 16 & 26 (SCG of DP Etiwanda Parcel)
An approximate 8,073 square foot temporary construction easement with a term of 18 months for grade separation purposes, and all uses necessary or convenient thereto from the real property located at 8822 Etiwanda Avenue, Rancho Cucamonga, and identified as San Bernardino County Tax Assessor’s Parcel Numbers 0229-131-15, 0229-131-16, and 0229- 131-26, which is owned by SCG of DP Etiwanda LLC.
8821 Etiwanda Avenue, APN 0229-162-15 (Jones, Garness & Clemons Parcel)
An approximate 5,011 square foot temporary construction easement with a term of 18 months for grade separation purposes, and all uses necessary or convenient thereto from the real property located at 8821 Etiwanda Avenue, Rancho Cucamonga, and identified as San Bernardino County Tax Assessor’s Parcel Number 0229-162-15, which is owned by the Jones Family Trust, The Garness Family Trust, and the Clemons Revocable Trust.
12521 Arrow Route & 8688 Etiwanda Avenue, APNs 0229-131-30 & 31 (Goodman Rancho SPE Parcel)
Two temporary construction easements, each with a term of 30 months, for grade separation purposes, and all uses necessary or convenient thereto, consisting of approximately 1,254 square feet and approximately 4,024 square feet over portions of the real property located at 12521 Arrow Route and 8688 Etiwanda Avenue, Rancho Cucamonga, California, and further identified as San Bernardino County Tax Assessor’s Parcel Numbers 0229- 131-30 and 0229-131-31, which is owned by Goodman Rancho SPE LLC. 8996 Etiwanda Avenue, APN 0229-283-79 (BTC III Parcel)
An approximate 401 square foot permanent easement, an approximate 14,801 square foot permanent easement, and an approximate 7,936
1 0
9 0
square foot temporary construction easement with a term of 30 months for grade separation purposes, and all uses necessary or convenient thereto from the real property located at 8996 Etiwanda Avenue, Rancho Cucamonga, and identified as San Bernardino County Tax Assessor’s Parcel Number 0229-283-79, which is owned by BTC III Rancho Cucamonga Logistics Center, LP.
8939 Etiwanda Avenue, APN 0229-291-55 (BCORE IE Parcel) An approximate 1,201 square foot permanent easement and an approximate 1,295 square foot temporary construction easement with a term of 30 months for grade separation purposes, and all uses necessary or convenient thereto from the real property located at 8939 Etiwanda Avenue, Rancho Cucamonga, and identified as San Bernardino County Tax Assessor’s Parcel Number 0229-291-55, which is owned by BCORE IE West Owner, LLC.
8949 Etiwanda Avenue, APN 0229-291-22 (SCE Parcel)
An approximate 52,464 square foot permanent easement and an approximate 1,972 square foot temporary construction easement with a term of 18 months for grade separation purposes, and all uses necessary or convenient thereto from the real property located at 8949 Etiwanda Avenue, Rancho Cucamonga, and identified as San Bernardino County Tax Assessor’s Parcel Number 0229-291-22, which is owned by Southern California Edison Company.
8685 to 8821 Etiwanda Avenue & 12928 to 12974 Whittram Avenue, APNs 0229-151-15 & 28, 0229-161-01, 02, 03, 04, 05, 19 & 20 (Colombero Parcel) An approximate 5,130 square foot permanent easement, an approximate 2,986 square foot maintenance and construction easement, and an approximate 3,192 square foot temporary construction easement and an approximate 677 square foot temporary construction easement, each with a term of 30 months, for grade separation purposes, and all uses necessary or convenient thereto from the real property located at 8685 to 8821 Etiwanda Avenue & 12928 to 12974 Whittram Avenue, Rancho Cucamonga, and identified as San Bernardino County Tax Assessor’s Parcel Numbers 0229-151-15 & 28, 0229-161-01, 02, 03, 04, 05, 19 & 20, which is owned by Colombero Family Limited Partnership.
As stated above, the public use for which the City seeks to acquire the Subject Property Interests, namely grade separation and related purposes, and all uses necessary or convenient thereto, will not unreasonably interfere with or impair the continuance of the public use to which any easement holders may have appropriated the area (Code of Civil Procedure Section 1240.510). Further, the Project may require the relocation of several utilities to the new right-of-way area.
The public use for which the City seeks to acquire the Subject Property Interests, namely grade separation and related purposes, and all uses necessary or convenient thereto, is a more necessary public use within the meaning of Code of Civil Procedure Section 1240.650 than the uses to which public utility easement
1 0
9 0
holders have appropriated any utility easements located on or within the area of the Subject Property Interests that are affected by the Project. Accordingly, the City is authorized to acquire the Subject Property Interest pursuant to Code of Civil Procedure Sections 1240.510, 1240.610, and 1240.650.
D. The City has made an offer as required by Government Code Section 7267.2 to each owner of record of the Subject Property Interests The City, pursuant to Government Code Section 7260 et seq., obtained a fair market value appraisal of the Subject Property Interests, set just compensation in accordance with the fair market values and extended written offers to the owners of record of the Subject Property Interests. As detailed above, the City extended to the owners of record of the Subject Property Interests a written offer pursuant to Government Code Section 7267.2 to acquire the Subject Property Interests for public use, namely grade separation and related purposes, and all uses necessary or convenient thereto. Specifically, the City extended written offers to the following record owners of the Subject Property Interests:
The City extended a written offer to Kular Truck Lines, Inc. to purchase the fee simple interest for grade separation purposes, and all uses necessary or convenient thereto in the real property located at 8783 Etiwanda Avenue and 12949 Whittram Avenue, Rancho Cucamonga, and further identified as San Bernardino County Tax Assessor’s Parcel Number 0229-162-14. The City extended a written offer to Lightning PM LLC to purchase an approximate 2,655 square foot temporary construction easement with a term of 18 months for grade separation purposes, and all uses necessary or convenient thereto from the real property located at 8889 Etiwanda Avenue, Rancho Cucamonga, and further identified as San Bernardino County Tax Assessor’s Parcel Numbers 0229-291-17 and 0229-291-18. The City extended a written offer to SCG of DP Etiwanda LLC to purchase an approximate 8,073 square foot temporary construction easement with a term of 18 months for grade separation purposes, and all uses necessary or convenient thereto from the real property located at 8768 and 8822 Etiwanda Avenue, Rancho Cucamonga, and further identified as San Bernardino County Tax Assessor’s Parcel Numbers 0229-131-15, 0229- 131-16, and 0229-131-26. The property owner submitted a letter objecting to the City’s adoption of a Resolution of Necessity on January 4, 2022, a copy of which is attached to this report (Attachment 10). The City extended a written offer to the Jones Family Trust, The Garness Family Trust, and the Clemons Revocable Trust to purchase an approximate 5,011 square foot temporary construction easement with a term of 18 months for grade separation purposes, and all uses necessary or convenient thereto from the real property located at 8821 Etiwanda Avenue, Rancho Cucamonga, and further identified as San Bernardino County Tax Assessor’s Parcel Number 0229-162-15. The property owners has accepted the City’s offer and a purchase and sale agreement is being circulated between the City and property owners. However, as of the writing of this report, the purchase and sale agreement has not been executed.
1 0
9 0
The City extended a written offer to Goodman Rancho SPE LLC to purchase two temporary construction easements, each with a term of 30 months, for grade separation purposes, and all uses necessary or convenient thereto, consisting of approximately 1,254 square feet and approximately 4,024 square feet over portions of the real property located at 12521 Arrow Route and 8688 Etiwanda Avenue, Rancho Cucamonga, California, and further identified as San Bernardino County Tax Assessor’s Parcel Numbers 0229-131-30 and 0229-131-31.
The City extended a written offer to BTC III Rancho Cucamonga Logistics Center, LP to purchase an approximate 401 square foot permanent easement, an approximate 14,801 square foot permanent easement, and an approximate 7,936 square foot temporary construction easement with a term of 30 months for grade separation purposes, and all uses necessary or convenient thereto from the real property located at 8996 Etiwanda Avenue, Rancho Cucamonga, and further identified as San Bernardino County Tax Assessor’s Parcel Number 0229-283-79. The property owner submitted a letter objecting to the City’s adoption of a Resolution of Necessity on January 3, 2022, a copy of which is attached to this report (Attachment 11).
The City extended a written offer to BCORE IE West Owner, LLC to purchase an approximate 1,201 square foot permanent easement and an approximate 1,295 square foot temporary construction easement with a term of 30 months for grade separation purposes, and all uses necessary or convenient thereto from the real property located at 8939 Etiwanda Avenue, Rancho Cucamonga, and further identified as San Bernardino County Tax Assessor’s Parcel Number 0229-291-55. The property owner submitted a letter objecting to the City’s adoption of a Resolution of Necessity on January 12, 2022, a copy of which is attached to this report (Attachment 12).
The City extended a written offer to Southern California Edison Company to purchase an approximate 52,464 square foot permanent easement and an approximate 1,972 square foot temporary construction easement with a term of 18 months for grade separation purposes, and all uses necessary or convenient thereto from the real property located at 8949 Etiwanda Avenue, Rancho Cucamonga, and identified as San Bernardino County Tax Assessor’s Parcel Number 0229-291-22. The property owner submitted a letter objecting to the City’s adoption of a Resolution of Necessity on December 29, 2021, a copy of which is attached to this report (Attachment 13).
The City extended a written offer to Colombero Family Limited Partnership to purchase an approximate 5,130 square foot permanent easement, an approximate 2,986 square foot maintenance and construction easement, and an approximate 3,192 square foot temporary construction easement and an approximate 677 square foot temporary construction easement, each with a term of 30 months, for grade separation purposes, and all uses necessary or convenient thereto from the real property located at 8685 to 8821 Etiwanda Avenue & 12928 to 12974 Whittram Avenue, Rancho
1 0
9 0
Cucamonga, and identified as San Bernardino County Tax Assessor’s Parcel Numbers 0229-151-15 & 28, 0229-161-01, 02, 03, 04, 05, 19 & 20.
The property owners has accepted the City’s offer and a purchase and sale agreement is being circulated between the City and property owners.
However, as of the writing of this report, the purchase and sale agreement has not been executed.
Incorporation of Above-Referenced Documents:
The following documents on file with the City Clerk’s Office and/or the Engineering Services Department, which are referenced in this report, are incorporated herein by this reference:
Resolutions of Necessity (attached hereto)
City of Rancho Cucamonga General Plan
Offer letters to the record owners of the Subject Property Interests Notice pursuant to Code of Civil Procedure Section 1245.235 to each record owner of the Subject Property Interests
Grade Separation Plans for Project
Environmental Documents relating to Project
Notice of Exemption
FISCAL IMPACT:
The Etiwanda Grade Separation Project is funded by an SB-1 Trade Corridor Enhancement Program (TCEP) grant funds which require construction to begin between July and December 2022. The acquisition of right-of-way for the project is a critical step in meeting the funding deadlines. Anticipated funds needed for acquisition of right-of-way for the project including legal fees will be funded through the TCEP grant funding allocation for the project.
COUNCIL MISSION / VISION / GOAL(S) ADDRESSED:
The proposed Etiwanda Grade Separation Project will enhance the City’s position as the world class community in our region by improving safety, traffic flow, and access to the southeast industrial area of the City.
ATTACHMENTS:
Attachment 1 - Resolution No. 2022-008 (Kular Truck Line Parcel) Attachment 2 - Resolution No. 2022-009 (Lightning PM Parcel) Attachment 3 - Resolution No. 2022-010 (SCG of DP Etiwanda Parcel) Attachment 4 - Resolution No. 2022-011 (Jones, Garness & Clemons Parcel) Attachment 5 - Resolution No. 2022-012 (Goodman Rancho SPE Parcel) Attachment 6 - Resolution No. 2022-013 (BTC III Parcel) Attachment 7 - Resolution No. 2022-014 (BCORE IE Parcel) Attachment 8 - Resolution No. 2022-015 (SCE Parcel)
Attachment 9 - Resolution No. 2022-016 (Colombero Parcel) Attachment 10 - SCG of DP Etiwanda LLC Objection Letter Attachment 11 - BTC III Rancho Cucamonga Logistics Center, LP Objection Letter Attachment 12 – BCORE IE West Owner LLC Objection Letter Attachment 13 - Southern California Edison Company Objection Letter
Resolution No. 2022-008 - Page 1 of 7
RESOLUTION NO. 2022-008
A RE SOL
UTION OF THE CITY COUNCIL OF THE CITY OF RANCHO
CUCAMONGA, CALIFORNIA, DECLARING CERTAIN REAL PROPERTY
INTERESTS NECESSARY FOR PUBLIC PURPOSES AND AUTHORIZING THE
ACQUISITION THEREOF IN CONNECTION WITH THE ETIWANDA GRADE SEPARATION PROJECT (FEE SIMPLE INTEREST IN APN 0229-162-14) WHEREAS, the City of Rancho Cucamonga (“City”) is a municipal corporation in the County of San Bernardino, State of California; and
WHEREAS, the City seeks to construct the Etiwanda Grade Separation Project (“Project”).
The Project requires the acquisition of additional right of way for grade separation. The Project involves the widening and construction of Etiwanda Avenue as a four-lane grade separated roadway over the Southern California Regional Rail Authority (“SCRRA”)/Burlington Northern and Santa Fe Railroad (“BNSF”) San Gabriel subdivision, currently a two-lane at-grade crossing. The Project will construct an overhead crossing, utilizing walls and embankments to support the raised approaching roadway. It will span the railroad right-of-way and provide access to adjacent properties. The Project will widen Etiwanda Avenue to four traffic lanes including a painted median/left turn lane with bike lanes and sidewalks on each side and a northbound right turn lane onto Whittram Avenue. When completed in 2024, the Project will reduce vehicle and truck delays, as well as queuing. It will improve mobility, safety, and level of service at the crossing, and it will provide for the safe transit of pedestrians, bicyclists, vehicles, trucks, and trains. Furthermore, the Project will provide for improved response times in the area for first responders such as police officers, firefighters, paramedics, and emergency medical technicians.
All work is consistent with the City’s General Plan of Circulation. The Plans for the Project are on file with the Engineering Services Department and are incorporated herein by this reference; and WHEREAS, the environmental effects of the Project were studied and analyzed pursuant to the California Environmental Quality Act (“CEQA”), Public Resources Code Section 21000 et seq., and the CEQA Guidelines, 14 Cal. Code Regs. Section 15000 et seq. (“CEQA Guidelines”).
City Staff determined that the Project was statutorily exempt pursuant to CEQA Article 18.
Statutory Exemptions, Section 15282. Other Statutory Exemptions, paragraph (g) as a railroad grade separation project which eliminates and existing grade crossing or reconstructs an existing grade separation. The City Council approved the Notice of Exemption and authorized Staff to file the Notice of Exemption with the Office of Planning and Research and the County clerk as specified in Section 21080.13(2) of the Public Resources Code. Said Notice of Exemption was filed with the Office of Planning and Research and with the County of San Bernardino on or about June 11, 2018 in accordance with the statutory requirements; and WHEREAS, in connection with the proposed Resolution of Necessity, on January 19, 2022, City Staff reviewed the environmental documentation prepared in connection with the Project. Pursuant to the criteria of Section 15162 of the CEQA Guidelines and Section 21166 of the Public Resources Code, City Staff concluded that no substantial changes have occurred in the Project, no substantial changes have occurred in the circumstances under which the Project is undertaken, and that the City has obtained no new information of substantial importance that would require further environmental analysis. T hese environmental findings are the appropriate findings with respect to the proposed acquisition of the Subject Property Interests.
ATTACHMENT 1
Resolution No. 2022-008 - Page 2 of 7
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Rancho Cucamonga as follows:
SECTION 1. The Rancho Cucamonga City Council adopts Resolution No. 2022-008, A Resolution of the City Council of the City of Rancho Cucamonga, California, Declaring Certain Real Property Interests Necessary for Public Purposes and Authorizing the Acquisition Thereof in Connection with the Etiwanda Grade Separation Project (A Fee Simple Interest in APN 0229- 162-14).
SECTION 2. The City seeks to acquire by eminent domain the real property interest described below in Section 3 of this Resolution for public use, namely grade separation and related purposes, and all uses necessary or convenient thereto in connection with the Etiwanda Grade Separation Project pursuant to the authority conferred on the City of Rancho Cucamonga to acquire real property by eminent domain by Section 19 of Article 1 of the California Constitution, Government Code Sections 37350, 37350.5, 37351, 40401, and 40404, California Code of Civil Procedure Section 1230.010 et seq. (Eminent Domain Law), including but not limited to Sections 1240.010, 1240.020, 1240.110, 1240.120, 1240.150, 1240.510, 1240.610, 1240.650, and by other provisions of law.
SECTION 3. The City seeks to acquire a fee simple interest (Subject Property Interest) in the real property located at 8783 Etiwanda Avenue and 12949 Whittram Avenue, Rancho Cucamonga, and identified as San Bernardino County Tax Assessor’s Parcel Number 0229-162- 14 (“Kular Parcel”) in connection with the Project. The Subject Property Interest is described more particularly in Exhibit “A” and depicted on Exhibit “B”, which are attached hereto and incorporated herein by this reference.
SECTION 4. The environmental effects of the acquisition of the Subject Property Interest were studied as an integral part of the environmental review for the Project. In connection with the proposed Resolution of Necessity, on January 19, 2022, City Staff reviewed the environmental documentation prepared in connection with the Project. Pursuant to the criteria of Section 15162 of the CEQA Guidelines and Section 21166 of the Public Resources Code, City staff concluded that no substantial changes have occurred in the Project, no substantial changes have occurred in the circumstances under which the Project is undertaken, and that the City has obtained no new information of substantial importance that would require further environmental analysis.
These environmental findings are the appropriate findings with respect to the proposed acquisition of the Subject Property Interest.
SECTION 5. The Project, as planned and designed, is in the public interest and necessity and is needed to improve vehicle and rail safety, traffic mobility, and surface transportation, as more fully explained below:
A. The Project requires the acquisition of additional right of way for grade separation. The Project involves the widening and construction of Etiwanda Avenue as a four- lane grade separated roadway over the SCRRA/BNSF San Gabriel subdivision, currently a two- lane at-grade crossing. The Project will construct an overhead crossing, utilizing walls and embankments to support the raised approaching roadway. It will span the railroad right-of-way and provide access to adjacent properties. The Project will widen Etiwanda Avenue to four traffic lanes including a painted median/left turn lane with bike lanes and sidewalks on each side and a northbound right turn lane onto Whittram Avenue. When completed in 2024, the Project will reduce vehicle and truck delays, as well as queuing. It will improve mobility, safety, and level of service at the crossing, and it will provide for the safe transit of pedestrians, bicyclists, vehicles,
Resolution No. 2022-008 - Page 3 of 7
trucks, and trains. Furthermore, the Project will provide for improved response times in the area for first responders such as police officers, firefighters, paramedics, and emergency medical technicians. All work is consistent with the City’s General Plan of Circulation.
B. The Project will reduce vehicle and truck delays, improve safety and level of service at the crossing, and it will provide for the safe transit of pedestrians, bicyclists, vehicles, trucks, and trains. Additionally, the Project will provide for improved response times in the area for first responders such as police officers, firefighters, paramedics, and emergency medical technicians. Accordingly, the Project will benefit the residents and businesses of the City and the community as a whole.
C. The Project, as planned and designed, is consistent with the Circulation Element of the General Plan, which designated Etiwanda Avenue as a four-lane major arterial road. Anticipating the future growth of th e SCRRA/BNSF corridor, the City’s General Plan identified this area to be grade separated. The City seeks to acquire the Subject Property Interest for public use, namely grade separation and related purposes, and all uses necessary or convenient thereto in connection with the Project. The City seeks to construct the Project to improve mobility, safety, and level of service at the crossing.
D. The Project was planned and located to minimize the impact on the adjacent properties. Because of its scope, the Project requires the acquisition of several permanent easements and temporary construction easements over portions of 10 larger parcels, as well as fee interests in two parcels owned by private property owners. The construction of the Project will require some business/residential relocations. The City will coordinate the construction with the owner of the Subject Property Interest to minimize the impact of the Project on the parcel and to assist those persons and businesses displaced by the Project. Based on the timing of the Project, it is necessary that the Ci ty consider the acquisition by eminent domain of the required Subject Property Interest.
SECTION 6.
A. Pursuant to Government Code Section 7260 et seq., the City of Rancho Cucamonga obtained a fair market value appraisal of the Kular Parcel, the fee simple interest the City seeks to acquire for public use, namely grade separation and related purposes, and all uses necessary or convenient thereto.
B. The City set just compensation in accordance with the appraised fair market value, and extended a written offer on September 22, 2021 to Kular Truck Line, Inc., the owner of record. The fair market value appraisal used a date of value of July 16, 2021.
C. The City’s written offer included an informational pamphlet describing the eminent domain process and the record owner’s rights under the Eminent Domain Law. In accordance with Government Code Section 7267.2, the City’s written offer contained a written statement of, and summary of the basis for, the amount it established as just compensation. The offer set forth the date of value utilized by the appraiser and explained the appraiser’s opinion of the highest and best use of the property. It explained the applicable zoning designation of the parcel. The City’s offer also summarized the principal transactions relied on by the appraiser to arrive at the appraiser’s opinion of value. In addition, the written offer explained the appraiser’s valuation analysis. It included the City’s comparable market data relied on by the appraiser.
Further, the City offered, pursuant to Code of Civil Procedure Section 1263.025, to pay the record owner the reasonable costs, up to $5,000.00, for an independent appraisal of the parcel.
Resolution No. 2022-008 - Page 4 of 7
SECTION 7. The City provided written notice to the owner of record, pursuant to Code of Civil Procedure section 1245.235 of the City Council’s intent to consider the adoption of a Resolution of Necessity for the acquisition of the Subject Property Interest by eminent domain.
SECTION 8. The public use for which the City seeks to acquire the Subject Property Interest, namely grade separation and related purposes, and all uses necessary or convenient thereto, will not unreasonably interfere with or impair the continuance of the public use to which any easement holders may have appropriated the area (Code of Civil Procedure Section 1240.510). Further, the Project may require the relocation of several utilities to the new right-of- way area. The public use for which the City seeks to acquire the Subject Property Interest, namely grade separation and related purposes, and all uses necessary or convenient thereto, is a more necessary public use within the meaning of Code of Civil Procedure Section 1240.650 than the uses to which public utility easement holders have appropriated any utility easements located on or within the area of the Subject Property Interest that are affected by the Project. Accordingly, the City is authorized to acquire the Subject Property Interest pursuant to Code of Civil Procedure Sections 1240.510, 1240.610, and 1240.650.
SECTION 9. Based on the evidence presented at the hearing regarding the Project, including the Agenda Report and documents referenced therein and any oral and written testimony at the hearing, the City Council hereby finds and determines that:
A. The public interest and necessity require the Project; B. The Project is planned and located in the manner that will be most compatible with the greatest public good and the least private injury; C. The Subject Property Interest described more particularly in Exhibit “A” and depicted on Exhibit “B” hereto, is necessary for the Project; and D. The City has made the offer required by Government Code Section 7267.2 to the record owner of the Subject Property Interest the City seeks to acquire.
SECTION 10. The findings and declarations contained in this Resolution are based upon the record before the City Council, including the Agenda Report and all documents referenced therein, all of which are incorporated herein by this reference, and any testimony and/or comments submitted to the City by the record owner and or the owner’s representative(s). These documents include, but are not limited to the City of Rancho Cucamonga’s General Plan, the offer letter sent to the owner pursuant to Government Code Section 7267.2, the notice to the record owner pursuant to Code of Civil Procedure Section 1245.235 of the City’s intent to consider the adoption of the Resolution of Necessity, Grade Separation Plans for the Project, and the Notice of Exemption for the Project.
SECTION 11. The City Council of the City of Rancho Cucamonga hereby authorizes and directs the City Attorney’s Office to take all steps necessary to commence and prosecute legal proceedings in a court of competent jurisdiction to acquire the fee simple interest in the Kular Parcel for the Project. The Subject Property Interest is described more particularly on Exhibit “A” and depicted on Exhibit “B” hereto.
SECTION 12. The City Council of the City of Rancho Cucamonga hereby authorizes the City Manager to execute all necessary documents in connection with the eminent domain proceeding.
Resolution No. 2022-008 - Page 5 of 7
SECTION 13. The City Clerk shall certify to the adoption of this Resolution.
PASSED, APPROVED AND ADOPTED this 19th day of January, 2022.
________________________
L. Dennis Michael, Mayor
City of Rancho Cucamonga
ATTEST:
Janice C. Reynolds, City Clerk
City of Rancho Cucamonga
APPROVED AS TO FORM:
Nicholas R. Ghirelli, City Attorney
Richards, Watson & Gershon
CERTIFICATION:
I, Janice C. Reynolds, City Clerk of the City of Rancho Cucamonga, California, do hereby certify that the foregoing Resolution 2022-008, was duly adopted by the City Council of the City of Rancho Cucamonga, California, at a regular meeting thereof held on the 19th day of January, 2022, by the following vote, to wit:
AYES:
NOES:
ABSTAIN:
ABSENT:
___________________________
Janice C. Reynolds, City Clerk
City of Rancho Cucamonga, California
Order No: 09207891-920-CMM-CM8
EXHIBIT "A"
All that certain real property situated in the County of San Bernardino, State of California, described as follows:
PORTIONS OF LOTS 437 AND 438 OF THE FONTANA ARROW ROUTE TRACT NO. 2102, IN THE CITY OF
RANCHO CUCAMONGA, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 31, PAGE(S) 11 TO 15 INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, LYING WESTERLY OF A LINE HEREAFTER REFERRED TO AS LINE "A" BEARING SOUTH 5 DEGREES 49 MINUTES 55 SECONDS WEST FROM A POINT ON THE CENTER LINE OF WHITTRAM AVENUE AND 132.00 FEET WESTERLY ON THE NORTHEAST CORNER OF SAID LOT 438 TO A POINT ON THE SOUTH LINE OF LOT 438 AND 184.03 FEET WESTERLY OF THE SOUTHEAST CORNER OF SAID LOT 438, SAID PORTIONS OF LOTS 437 AND 438, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT BEING AT THE CENTER LINE INTERSECTIONS OF ETIWANDA AVENUE AND WHITTRAM AVENUE;
THENCE SOUTH 00 DEGREES 22 MINUTES 00 SECONDS WEST ALONG THE CENTER LINE OF ETIWANDA AVENUE 242.61 FEET;
THENCE SOUTH 89 DEGREES 21 MINUTES 54 SECONDS EAST 524.63 FEET TO A POINT ON LINE "A"; THENCE NORTH 5 DEGREES 49 MINUTES 55 SECONDS EAST ALONG LINE "A" 255.49 FEET TO A POINT ON THE CENTER LINE OF WHITTRAM AVENUE;
THENCE SOUTH 89 DEGREES 24 MINUTES 00 SECONDS WEST ALONG SAID CENTER LINE 549.04 FEET TO THE POINT OF BEGINNING.
SAID LAND IS ALSO DESCRIBED AS PARCEL "A" ON CERTIFICATE OF COMPLIANCE FOR LOT LINE ADJUSTMENT NO. 269, RECORDED FEBRUARY 18, 1988 AS INSTRUMENT NO. 88-048704 OF OFFICIAL RECORDS.
Assessor's Parcel Number: 0229-162-14
Exhibit A
Order No: 09207891-920-CMM-CM8 EXHIBIT “A”
All that certain real property situated in the County of San Bernardino, State of California, described as follows:
PORTIONS OF LOTS 437 AND 438 OF THE FONTANA ARROW ROUTE TRACT NO. 2102, IN THE CITY OF
RANCHO CUCAMONGA, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 31, PAGE(S) 11 TO 15 INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, LYING WESTERLY OF A LINE HEREAFTER REFERRED TO AS LINE "A" BEARING SOUTH 5 DEGREES 49 MINUTES 55 SECONDS WEST FROM A POINT ON THE CENTER LINE OF WHITTRAM AVENUE AND 132.00 FEET WESTERLY ON THE NORTHEAST CORNER OF SAID LOT 438 TO A POINT ON THE SOUTH LINE OF LOT 438 AND 184.03 FEET WESTERLY OF THE SOUTHEAST CORNER OF SAID LOT 438, SAID PORTIONS OF LOTS 437 AND 438, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT
A POINT BEING AT THE CENTER LINE INTERSECTIONS OF ETIWANDA AVENUE AND WHITTRAM AVENUE;
THENCE SOUTH 00 DEGREES 22 MINUTES 00 SECONDS WEST ALONG THE CENTER LINE OF ETIWANDA AVENUE 242.61 FEET;
THENCE SOUTH 89 DEGREES
21 MINUTES 54 SECONDS EAST 524.63 FEET TO A POINT ON LINE "A"; THENCE NORTH 5 DEGREES 49 MINUTES 55 SECONDS EAST ALONG LINE "A" 255.49 FEET TO A POINT ON THE CENTER LINE OF WHITTRAM AVENUE;
THENCE SOUTH
89 DEGREES 24 MINUTES 00 SECONDS WEST ALONG SAID CENTER LINE 549.04 FEET TO THE POINT OF BEGINNING.
SAID LAND IS ALSO DESCRIBED AS PARCEL "A" ON CERTIFICATE OF COMPLIANCE FOR LOT LINE ADJUSTMENT NO. 269, RECORDED FEBRUARY 18, 1988 AS INSTRUMENT NO. 88-048704 OF OFFICIAL RECORDS.
Assessor’s Parcel Number: 0229-162-14
Resolution No. 2022-008 - Page 6 of 7
THIS MAP IS fOR THE PURPOSE
OF ha VALOREM TAXATION ONLY.
February 2004
Ptn. Fontana Arrow Route Tract No. 2102
15%, M.B. 31/11
- - 1701 IC5
ei
100
a
(106.4%)
WH I UR Ali- -
• ->
435
•
10 10 61
City of Rancho Cucamonga
Tax Rate Area
15026 15028
he
•
8 iM
434
tl
43 I
1 0 AP
2 9 Lc
I.R.A. 110.04
438
01)
.0
50 433
11 15071
15076
439
3.4 AL
3.15 AVENUE-
0229— 1 6
30 I
LiJ
440
IJ
RAP 1114-51-71
/716. 74R. %O. 21,
16 PLAT MAP
Ptn. Sec. 9
T.1S., R.6W.
17 YAP 104-35 -II
(.24 PIN, PAO MO.
1" • 100 '
C
60 o
o. o o o
to ry)
"
Cp
03 CD
0) 0 C
DS 0 0
.Cr 03 CA
0101510
07770/09 69
PLAT MAP
EXHIBIT “B”
Resolution No. 2022-008 - Page 7 of 7
Resolution No. 2022-009 - Page 1 of 10
RESOLUTION NO. 2022-009
A RE SOL
UTION OF THE CITY COUNCIL OF THE CITY OF RANCHO
CUCAMONGA, CALIFORNIA, DECLARING CERTAIN REAL PROPERTY
INTERESTS NECESSARY FOR PUBLIC PURPOSES AND AUTHORIZING THE
ACQUISITION THEREOF IN CONNECTION WITH THE ETIWANDA GRADE
SEPARATION PROJECT (TEMPORARY CONSTRUCTION EASEMENT OVER A PORTION OF APNS 0229-291-17 & 18)
WHEREAS, the City of Rancho Cucamonga (“City”) is a municipal corporation in the County of San Bernardino, State of California; and
WHEREAS, the City seeks to construct the Etiwanda Grade Separation Project (“Project”).
The Project requires the acquisition of additional right of way for grade separation. The Project involves the widening and construction of Etiwanda Avenue as a four-lane grade separated roadway over the Southern California Regional Rail Authority (“SCRRA”)/Burlington Northern and Santa Fe Railroad (“BNSF”) San Gabriel subdivision, currently a two-lane at-grade crossing. The Project will construct an overhead crossing, utilizing walls and embankments to support the raised approaching roadway. It will span the railroad right-of-way and provide access to adjacent properties. The Project will widen Etiwanda Avenue to four traffic lanes including a painted median/left turn lane with bike lanes and sidewalks on each side and a northbound right turn lane onto Whittram Avenue. When completed in 2024, the Project will reduce vehicle and truck delays, as well as queuing. It will improve mobility, safety, and level of service at the crossing, and it will provide for the safe transit of pedestrians, bicyclists, vehicles, trucks, and trains. Furthermore, the Project will provide for improved response times in the area for first responders such as police officers, firefighters, paramedics, and emergency medical technicians.
All work is consistent with the City’s General Plan of Circulation. The Plans for the Project are on file with the Engineering Services Department and are incorporated herein by this reference; and WHEREAS, the environmental effects of the Project were studied and analyzed pursuant to the California Environmental Quality Act (“CEQA”), Public Resources Code Section 21000 et seq., and the CEQA Guidelines, 14 Cal. Code Regs. Section 15000 et seq. (“CEQA Guidelines”).
City Staff determined that the Project was statutorily exempt pursuant to CEQA Article 18.
Statutory Exemptions, Section 15282. Other Statutory Exemptions, paragraph (g) as a railroad grade separation project which eliminates and existing grade crossing or reconstructs an existing grade separation. The City Council approved the Notice of Exemption and authorized Staff to file the Notice of Exemption with the Office of Planning and Research and the County clerk as specified in Section 21080.13(2) of the Public Resources Code. Said Notice of Exemption was filed with the Office of Planning and Research and with the County of San Bernardino on or about June 11, 2018 in accordance with the statutory requirements; and WHEREAS, in connection with the proposed Resolution of Necessity, on January 19, 2022, City Staff reviewed the environmental documentation prepared in connection with the Project. Pursuant to the criteria of Section 15162 of the CEQA Guidelines and Section 21166 of the Public Resources Code, City Staff concluded that no substantial changes have occurred in the Project, no substantial changes have occurred in the circumstances under which the Project is undertaken, and that the City has obtained no new information of substantial importance that would require further environmental analysis. T hese environmental findings are the appropriate findings with respect to the proposed acquisition of the Subject Property Interests.
ATTACHMENT 2
Resolution No. 2022-009 - Page 2 of 10
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Rancho Cucamonga as follows:
SECTION 1. The Rancho Cucamonga City Council adopts Resolution 2022-009, A Resolution of the City Council of the City of Rancho Cucamonga, California, Declaring Certain Real Property Interests Necessary for Public Purposes and Authorizing the Acquisition Thereof in Connection with the Etiwanda Grade Separation Pr oject (A temporary construction easement on a portion of APNs 0229-291-17 & 18).
SECTION 2. The City seeks to acquire by eminent domain the real property interest described below in Section 3 of this Resolution for public use, namely grade separation and related purposes, and all uses necessary or convenient thereto in connection with the Etiwanda Grade Separation Project pursuant to the authority conferred on the City of Rancho Cucamonga to acquire real property by eminent domain by Section 19 of Article 1 of the California Constitution, Government Code Sections 37350, 37350.5, 37351, 40401, and 40404, California Code of Civil Procedure Section 1230.010 et seq. (Eminent Domain Law), including but not limited to Sections 1240.010, 1240.020, 1240.110, 1240.120, 1240.150, 1240.510, 1240.610, 1240.650, and by other provisions of law.
SECTION 3. The City seeks to acquire an approximate 2,655 square foot temporary construction easement with a term of 18 months (“Subject Property Interest”) over a portion of the real property located at 8889 Etiwanda Avenue, Rancho Cucamonga, and identified as San Bernardino County Tax Assessor’s Parcel Numbers 0229-291-17 and 0229-291-18 (“Lightning PM Parcel”) in connection with the Project. Th e Subject Property Interest is described more particularly in Exhibit “A” and depicted on Exhibit “B”, which are attached hereto and incorporated herein by this reference.
SECTION 4. The environmental effects of the acquisition of the Subject Property Interest were studied as an integral part of the environmental review for the Project. In connection with the proposed Resolution of Necessity, on January 19, 2022, City Staff reviewed the environmental documentation prepared in connection with the Project. Pursuant to the criteria of Section 15162 of the CEQA Guidelines and Section 21166 of the Public Resources Code, City staff concluded that no substantial changes have occurred in the Project, no substantial changes have occurred in the circumstances under which the Project is undertaken, and that the City has obtained no new information of substantial importance that would require further environmental analysis.
These environmental findings are the appropriate findings with respect to the proposed acquisition of the Subject Property Interest.
SECTION 5. The Project, as planned and designed, is in the public interest and necessity and is needed to improve vehicle and rail safety, traffic mobility, and surface transportation, as more fully explained below:
A. The Project requires the acquisition of additional right of way for grade separation. The Project involves the widening and construction of Etiwanda Avenue as a four- lane grade separated roadway over the SCRRA/BNSF San Gabriel subdivision, currently a two- lane at-grade crossing. The Project will construct an overhead crossing, utilizing walls and embankments to support the raised approaching roadway. It will span the railroad right-of-way and provide access to adjacent properties. The Project will widen Etiwanda Avenue to four traffic lanes including a painted median/left turn lane with bike lanes and sidewalks on each side and a northbound right turn lane onto Whittram Avenue. When completed in 2024, the Project will reduce vehicle and truck delays, as well as queuing. It will improve mobility, safety, and level of
Resolution No. 2022-009 - Page 3 of 10
service at the crossing, and it will provide for the safe transit of pedestrians, bicyclists, vehicles, trucks, and trains. Furthermore, the Project will provide for improved response times in the area for first responders such as police officers, firefighters, paramedics, and emergency medical technicians. All work is consistent with the City’s General Plan of Circulation.
B. The Project will reduce vehicle and truck delays, improve safety and level of service at the crossing, and it will provide for the safe transit of pedestrians, bicyclists, vehicles, trucks, and trains. Additionally, the Project will provide for improved response times in the area for first responders such as police officers, firefighters, paramedics, and emergency medical technicians. Accordingly, the Project will benefit the residents and businesses of the City and the community as a whole.
C. The Project, as planned and designed, is consistent with the Circulation Element of the General Plan, which designated Etiwanda Avenue as a four-lane major arterial road. Anticipating the future growth of th e SCRRA/BNSF corridor, the City’s General Plan identified this area to be grade separated. The City seeks to acquire the Subject Property Interest for public use, namely grade separation and related purposes, and all uses necessary or convenient thereto in connection with the Project. The City seeks to construct the Project to improve mobility, safety, and level of service at the crossing.
D. The Project was planned and located to minimize the impact on the adjacent properties. Because of its scope, the Project requires the acquisition of several permanent easements and temporary construction easements over portions of 10 larger parcels, as well as fee interests in two parcels owned by private property owners. The construction of the Project will require some business/residential relocations. The City will coordinate the construction with the owner of the Subject Property Interest to minimize the impact of the Project on the parcel. Based on the timing of the Project, it is necessary that the City consider the acquisition by eminent domain of the required Subject Property Interest.
SECTION 6.
A. Pursuant to Government Code Section 7260 et seq., the City of Rancho Cucamonga obtained a fair market value appraisal of the Lightning PM Parcel, the approximate 2,655 square foot temporary construction easement the City seeks to acquire for a period of 18 months for public use, namely grade separation and related purposes, and all uses necessary or convenient thereto.
B. The City set just compensation in accordance with the appraised fair market value, and extended a written offer on October 26, 2021 to Lightning PM LLC, the owner of record. The fair market value appraisal used a date of value of October 14, 2021.
C. The City’s written offer included an informational pamphlet describing the eminent domain process and the record owner’s rights under the Eminent Domain Law. In accordance with Government Code Section 7267.2, the City’s written offer contained a written statement of, and summary of the basis for, the amount it established as just compensation. The offer set forth the date of value utilized by the appraiser and explained the appraiser’s opinion of the highest and best use of the larger parcel. It explained the applicable zoning designation of the larger parcel. The City’s offer also summarized the principal transactions relied on by the appraiser to arrive at the appraiser’s opinion of value. In addition, the written offer explained the appraiser’s valuation analysis, including severance damages. It included the City’s comparable market data relied on by the appraiser. Further, the City offered, pursuant to Code of Civil
Resolution No. 2022-009 - Page 4 of 10
Procedure Section 1263.025, to pay the record owner the reasonable costs, up to $5,000.00, for an independent appraisal of the approximate 2,655 square foot temporary construction easement area.
SECTION 7. The City provided written notice to the owner of record, pursuant to Code of Civil Procedure section 1245.235 of the City Council’s intent to consider the adoption of a Resolution of Necessity for the acquisition of the Subject Property Interest by eminent domain.
SECTION 8. The public use for which the City seeks to acquire the Subject Property Interest, namely grade separation and related purposes, and all uses necessary or convenient thereto, will not unreasonably interfere with or impair the continuance of the public use to which any easement holders may have appropriated the area (Code of Civil Procedure Section 1240.510). Further, the Project may require the relocation of several utilities to the new right-of- way area. The public use for which the City seeks to acquire the Subject Property Interest, namely grade separation and related purposes, and all uses necessary or convenient thereto, is a more necessary public use within the meaning of Code of Civil Procedure Section 1240.650 than the uses to which public utility easement holders have appropriated any utility easements located on or within the area of the Subject Property Interest that are affected by the Project. Accordingly, the City is authorized to acquire the Subject Property Interest pursuant to Code of Civil Procedure Sections 1240.510, 1240.610, and 1240.650.
SECTION 9. Based on the evidence presented at the hearing regarding the Project, including the Agenda Report and documents referenced therein and any oral and written testimony at the hearing, the City Council hereby finds and determines that:
A. The public interest and necessity require the Project; B. The Project is planned and located in the manner that will be most compatible with the greatest public good and the least private injury; C. The Subject Property Interest described more particularly in Exhibit “A” and depicted on Exhibit “B” hereto, is necessary for the Project; and D. The City has made the offer required by Government Code Section 7267.2 to the record owner of the Subject Property Interest the City seeks to acquire.
SECTION 10. The findings and declarations contained in this Resolution are based upon the record before the City Council, including the Agenda Report and all documents referenced therein, all of which are incorporated herein by this reference, and any testimony and/or comments submitted to the City by the record owner and or the owner’s representative(s). These documents include, but are not limited to the City of Rancho Cucamonga’s General Plan, the offer letter sent to the owner pursuant to Government Code Section 7267.2, the notice to the record owner pursuant to Code of Civil Procedure Section 1245.235 of the City’s intent to consider the adoption of the Resolution of Necessity, Grade Separation Plans for the Project, and the Notice of Exemption for the Project.
SECTION 11. The City Council of the City of Rancho Cucamonga hereby authorizes and directs the City Attorney’s Office to take all steps necessary to commence and prosecute legal proceedings in a court of competent jurisdiction to acquire an approximate 2,655 square foot temporary construction easement for a period of 18 months for the Project. The Subject Property Interest is described more particularly on Exhibit “A” and depicted on Exhibit “B” hereto.
Resolution No. 2022-009 - Page 5 of 10
SECTION 12. The City Council of the City of Rancho Cucamonga hereby authorizes the City Manager to execute all necessary documents in connection with the eminent domain proceeding.
SECTION 13. The City Clerk shall certify to the adoption of this Resolution.
PASSED, APPROVED AND ADOPTED this 19th day of January, 2022.
________________________
L. Dennis Michael, Mayor
City of Rancho Cucamonga
ATTEST:
Janice C. Reynolds, City Clerk
City of Rancho Cucamonga
APPROVED AS TO FORM:
Nicholas R. Ghirelli, City Attorney
Richards, Watson & Gershon
CERTIFICATION:
I, Janice C. Reynolds, City Clerk of the City of Rancho Cucamonga, California, do hereby certify that the foregoing Resolution 2022-009, was duly adopted by the City Council of the City of Rancho Cucamonga, California, at a regular meeting thereof held on the 19th day of January, 2022, by the following vote, to wit:
AYES:
NOES:
ABSTAIN:
ABSENT:
___________________________
Janice C. Reynolds, City Clerk
City of Rancho Cucamonga, California
EXHIBIT A EXHIBIT A
Resolution No. 2022-009 - Page 6 of 10
Exhibit A
Legal Description
Etiwanda Grade Separation Project
APN 229-291-17 / Lightning P.M., LLC
Temporary Construction Easement
A portion of that certain parcel, in the City of Rancho Cucamonga, County of San Bernardino, State of California, as described in the Grant Deed recorded April 17, 2018, as Document No. 2018-0137215 of Official Records, records of said County, described as follows:
Beginning at the intersection of the north line of the land described in said Grant Deed with the east line of Etiwanda Avenue, fifty (50) foot half-width, as described in the Easement Deed recorded April 17, 1998 as Document No. 19980145780 of Official Records of said County, as both are shown on Sheet 8 of Record of Survey 19-0109 filed in Book 168, Pages 53 through 63 of Record of Surveys, records of said County; Thence 15t, along the north line of said land, N 87)35'05" E, a distance of 24.02 feet to a line parallel with, and lying 24.00 feet easterly of, said east line of Etiwanda Avenue; Thence 2 nd, leaving said north line, and along said parallel line, S 00Y07'00" W, a distance of 111.07 feet; Thence 3 rd, leaving said parallel line, N 89)53'00" W, a distance of 24.00 feet to said east line of Etiwanda Avenue;
Thence 4 th, along said east line, N 00Y07'00" E, a distance of 110.15 feet to the Point of Beginning.
Containing 2,655 square feet, more or less.
Notes
The above legal description is based on the dimensions, information, and land references shown on Record of Survey 19-0109 filed in Book 168, Pages 53 through 63 of Record of Surveys. ( Bearings and distances are referenced to the California Coordinate System, Zone 5 grid, NAD83(2011) CSRS Epoch 2017.50. To obtain ground level distances, multiply grid distances by 1.000060364.
This descripti
Surveyors Act.
repared by me, or under my direction, in conformance with the Professional Land 10-04-2021
Justin P. Height, LS 6167 Dam
to
Job No. 0618-00016
Lightning P.M., LLC
:••••• GUIDA • • .•• :....: SURVEYING INC.
Exhibit A
Legal Description
Etiw
anda Grade Separation Project
APN 229-291-17 / Lightning
Temporary Construction Easement
Job No. 0618-00016
Lightning TCE.docx
10-04-2021
A portion of that certain parcel, in the City of Rancho Cucamonga, County of San Bernardino, State of California, as described in the Grant Deed recorded April 17, 2018, as Document No. 2018-0137215 of Official Records, records of said County, described as follows:
Beginning at the intersection of the north line of the land described in said Grant Deed with the east line of Etiwanda Avenue, fifty (50) foot half-width, as described in the Easement Deed recorded April 17, 1998 as Document No. 19980145780 of Official Records of said County, as both are shown on Sheet 8 of Record of Survey 19-0109 filed in Book 168, Pages 53 through 63 of Record of Surveys, records of said County; Thence 1st, along the north line of said land, N 87°55’05” E , a distance of 24.02 feet to a line parallel with,
and lying 24.00 feet easterly of, said east line of Etiwanda Avenue; Thence 2nd, leaving said north line, and along said parallel line, S 00° 07’00” W, a distance of 111.07 feet; Thence 3rd, leaving said parallel line, N 89°53’00” W , a distance of 24.00 feet to said east line of Etiwanda Avenue;
Thence 4th, along said east line, N 00°07’00” E
, a distance of 110.15 feet to the Point of Beginning.
Containing 2,655 square feet, more or less.
Notes
• The above legal description is based on the dimensions, information, and land references shown on Record of Survey 19-0109 filed in Book 168, Pages 53 through 63 of Record of Surveys. • Bearings and distances are referenced to the California Coordinate System, Zone 5 grid, NAD83(2011) CSRS Epoch 2017.50. To obtain ground level distances, multiply grid distances by 1.000060364.
This description has been prepared by me, or under my direction, in conformance with the Professional Land Surveyors Act.
__________________________________________
Justin P. Height, PLS 6167 Dam
te
APN 229-291-17 / Lightning P.M., LLC
Job No. 0618-00016
Lightning P.M., LLC
Resolution No. 2022-009 - Page 7 of 10
EXHIBIT B EXHIBIT B
Resolution No. 2022-009 - Page 8 of 10
NOTES
ETIWANDA AVENUE
30'
50'
50'
SBCTA RAIL CORRIDOR
PARDEL 1; LLA 501; 003. NO 2002-0026839 OR
NORTH LINE OF LAND
DESCRIBED IN
DOC. NO. 2018-0137215 OR
TEMP. CONST. EASEMENT
2,655 SQ. FT.
(SEE PAGE 2)
OCC., NC., 2012-0137/215 C.H
EAST LINE OF t. I IWANDA AVE
PER EASEMENT DEED
DOC. NO. 19980145780 OR
40'
GUIDA
SURVEYING INC.
2866 C.,.H., 305
THIS PLAT HAS BEEN PREPARED BY ME, OR
UNDER MY DI CTION, IN CONFORMANCE WITH
THE PRC FES L LAND SURVEYORS ACT.
10-04-2021
Job No. 0618-00016 JUSTIN P. HEIGHT, PLS 6167 DATE
PLAT MAP IS BASED ON THE
INFORMATION AND LAND
REFERENCES SHOWN ON RECORD
OF SURVEY 19-0109 FILED IN
BOOK 168, PAGES 53 THROUGH
63 OF RECORD OF SURVEYS.
BEARINGS AND DISTANCES ARE
REFERENCED TO THE CALIFORNIA
COORDINATE SYSTEM, ZONE 5
GRID, NAD83(2011) CSRS EPOCH
2017.50. TO OBTAIN GROUND
LEVEL DISTANCES, MULTIPLY GRID
DISTANCES BY 1.000060364.
SCALE: 1"=.100'
Exhibit B
Plat Map
Etiwanda Grade Separation Project
APN 229-291-17 / Lightning P.M., LLC
Temporary Construction Easement
APN 229-291-17 / Lightning P.M., LLC
Resolution No. 2022-009 - Page 9 of 10
0 ro
Umml if' GUI DA Um.. .9.9.9 SURVEYING INC.
Job No. 0618-00016
NORTH LINE OF LAND
DESCRIBED IN
DOC. NO. 201 8-01 3721 5 OR
0 LU
EAST LINE OF EI IWANDA AVE
PER EASEMENT DEED
DOC. NO. 19980145780 OR
ETRA/ANDA AVENUE
SCALE: 1"=20'
0 LU
Exhibit B
Plat Map
Etiwanda Grade Separation Project
APN 229-291-17 / Lightning P.M., LLC
Temporary Construction Easement
APN 229-291-17 / Lightning P.M., LLC
Resolution No. 2022-009 - Page 10 of 10
Resolution No. 2022-010 - Page 1 of 9
RESOLUTION NO. 2022-010
A RE SOL
UTION OF THE CITY COUNCIL OF THE CITY OF RANCHO
CUCAMONGA, CALIFORNIA, DECLARING CERTAIN REAL PROPERTY
INTERESTS NECESSARY FOR PUBLIC PURPOSES AND AUTHORIZING THE
ACQUISITION THEREOF IN CONNECTION WITH THE ETIWANDA GRADE
SEPARATION PROJECT (TEMPORARY CONSTRUCTION EASEMENT OVER A PORTION OF APNS 0229-131-15, 16 & 26)
WHEREAS, the City of Rancho Cucamonga (“City”) is a municipal corporation in the County of San Bernardino, State of California; and
WHEREAS, the City seeks to construct the Etiwanda Grade Separation Project (“Project”).
The Project requires the acquisition of additional right of way for grade separation. The Project involves the widening and construction of Etiwanda Avenue as a four-lane grade separated roadway over the Southern California Regional Rail Authority (“SCRRA”)/Burlington Northern and Santa Fe Railroad (“BNSF”) San Gabriel subdivision, currently a two-lane at-grade crossing. The Project will construct an overhead crossing, utilizing walls and embankments to support the raised approaching roadway. It will span the railroad right-of-way and provide access to adjacent properties. The Project will widen Etiwanda Avenue to four traffic lanes including a painted median/left turn lane with bike lanes and sidewalks on each side and a northbound right turn lane onto Whittram Avenue. When completed in 2024, the Project will reduce vehicle and truck delays, as well as queuing. It will improve mobility, safety, and level of service at the crossing, and it will provide for the safe transit of pedestrians, bicyclists, vehicles, trucks, and trains. Furthermore, the Project will provide for improved response times in the area for first responders such as police officers, firefighters, paramedics, and emergency medical technicians.
All work is consistent with the City’s General Plan of Circulation. The Plans for the Project are on file with the Engineering Services Department and are incorporated herein by this reference; and WHEREAS, the environmental effects of the Project were studied and analyzed pursuant to the California Environmental Quality Act (“CEQA”), Public Resources Code Section 21000 et seq., and the CEQA Guidelines, 14 Cal. Code Regs. Section 15000 et seq. (“CEQA Guidelines”).
City Staff determined that the Project was statutorily exempt pursuant to CEQA Article 18.
Statutory Exemptions, Section 15282. Other Statutory Exemptions, paragraph (g) as a railroad grade separation project which eliminates and existing grade crossing or reconstructs an existing grade separation. The City Council approved the Notice of Exemption and authorized Staff to file the Notice of Exemption with the Office of Planning and Research and the County clerk as specified in Section 21080.13(2) of the Public Resources Code. Said Notice of Exemption was filed with the Office of Planning and Research and with the County of San Bernardino on or about June 11, 2018 in accordance with the statutory requirements; and WHEREAS, in connection with the proposed Resolution of Necessity, on January 19, 2022, City Staff reviewed the environmental documentation prepared in connection with the Project. Pursuant to the criteria of Section 15162 of the CEQA Guidelines and Section 21166 of the Public Resources Code, City Staff concluded that no substantial changes have occurred in the Project, no substantial changes have occurred in the circumstances under which the Project is undertaken, and that the City has obtained no new information of substantial importance that would require further environmental analysis. T hese environmental findings are the appropriate findings with respect to the proposed acquisition of the Subject Property Interests.
ATTACHMENT 3
Resolution No. 2022-010 - Page 2 of 9
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Rancho Cucamonga as follows:
SECTION 1. The Rancho Cucamonga City Council adopts Resolution No. 2022-010, A Resolution of the City Council of the City of Rancho Cucamonga, California, Declaring Certain Real Property Interests Necessary for Public Purposes and Authorizing the Acquisition Thereof in Connection with the Etiwanda Grade Separation Pr oject (A temporary construction easement on a portion of APNs 0229-131-15, 16 & 26).
SECTION 2. The City seeks to acquire by eminent domain the real property interest described below in Section 3 of this Resolution for public use, namely grade separation and related purposes, and all uses necessary or convenient thereto in connection with the Etiwanda Grade Separation Project pursuant to the authority conferred on the City of Rancho Cucamonga to acquire real property by eminent domain by Section 19 of Article 1 of the California Constitution, Government Code Sections 37350, 37350.5, 37351, 40401, and 40404, California Code of Civil Procedure Section 1230.010 et seq. (Eminent Domain Law), including but not limited to Sections 1240.010, 1240.020, 1240.110, 1240.120, 1240.150, 1240.510, 1240.610, 1240.650, and by other provisions of law.
SECTION 3. The City seeks to acquire an approximate 8,073 square foot temporary construction easement with a term of 18 months (“Subject Property Interest”) over a portion of the real property located at 8768 and 8822 Etiwanda Avenue, Rancho Cucamonga, and identified as San Bernardino County Tax Assessor’s Parcel Numbers 0229-131-15, 0229-131-16, and 0229- 131-26 (“SCG of DP Etiwanda Parcel”) in connection with the Project. The Subject Property Interest is described more particularly in Exhibit “A” and depicted on Exhibit “B”, which are attached hereto and incorporated herein by this reference.
SECTION 4. The environmental effects of the acquisition of the Subject Property Interest were studied as an integral part of the environmental review for the Project. In connection with the proposed Resolution of Necessity, on January 19, 2022, City Staff reviewed the environmental documentation prepared in connection with the Project. Pursuant to the criteria of Section 15162 of the CEQA Guidelines and Section 21166 of the Public Resources Code, City staff concluded that no substantial changes have occurred in the Project, no substantial changes have occurred in the circumstances under which the Project is undertaken, and that the City has obtained no new information of substantial importance that would require further environmental analysis.
These environmental findings are the appropriate findings with respect to the proposed acquisition of the Subject Property Interest.
SECTION 5. The Project, as planned and designed, is in the public interest and necessity and is needed to improve vehicle and rail safety, traffic mobility, and surface transportation, as more fully explained below:
A. The Project requires the acquisition of additional right of way for grade separation. The Project involves the widening and construction of Etiwanda Avenue as a four- lane grade separated roadway over the SCRRA/BNSF San Gabriel subdivision, currently a two- lane at-grade crossing. The Project will construct an overhead crossing, utilizing walls and embankments to support the raised approaching roadway. It will span the railroad right-of-way and provide access to adjacent properties. The Project will widen Etiwanda Avenue to four traffic lanes including a painted median/left turn lane with bike lanes and sidewalks on each side and a northbound right turn lane onto Whittram Avenue. When completed in 2024, the Project will reduce vehicle and truck delays, as well as queuing. It will improve mobility, safety, and level of