DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (“Agreement”) dated for the convenience of the Parties this ____ day of __________, 20__, (“Agreement Date”), is entered into by and between DEAN SPANOS and DEA SPANOS BERBERIAN, CO-TRUSTEES OF THE ALEX AND FAYE SPANOS FAMILY TRUST (“ Developer”), the CITY OF STOCKTON, a California municipal corporation (“City”). Developer and City are sometimes referred to individually herein as a “Party” and collectively as the “Parties.”
NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein and other considerations, the value and adequacy of which are hereby acknowledged, the Parties hereby agree as follows:
RECITALS
A. In order to strengthen the public planning process, encourage private participation in comprehensive planning and reduce the economic costs and risks of development, the Legislature of the State of California enacted section 65864 et seq . of the Government Code (“Development Agreement Statute”), which authorizes a city and a developer having a legal or equitable interest in real property to enter into a binding, long- term development agreement, establishing certain development rights in the property.
B. In accordance with the Development Agreement Statute, the City Council has adopted a development agreement ordinance codified as Chapter 16.128 of the City’s Municipal Code (“Development Agreement Ordinance”), which authorizes the execution of development agreements and sets forth the required contents and form of those agreements. The provisions of the Development Agreement Statute and the City’s Development Agreement Ordinance are collectively referred to herein as the “Development Agreement Law.”
C. Developer has a legal and/or equitable in terest in certain real property consisting of approximately 360 acres located in Stockton, as more particularly described on Exhibit A and shown on Exhibit B to this Agreement (“Property” or “Project Site”). The Property is generally located west of Interstate 5, north and east of Mosher Slough. The overall Project Site is vacant and is currently located within City limits.
D. Developer proposes to plan, develop, construct, operate and maintain on the Project Site, a development containing residential, commercial, professional, and business uses, consistent with the Planned Development. Any reference in this Agreement to the “Project” shall mean and include the “Project Site,” and any reference in this Agreement to the “Project Site” shall mean and include the “Project.”
E. In accordance with the California Environment Quality Act (Pub. Res. Code §§21000, et seq.) and its Guidelines (C.C.R., Title 14, §§15000, et seq.), as each is amended from time to time (“CEQA”), City certified as adequate and complete the FEIR for the Project.
F. As of the execution of this Agreement by the Parties, various land use regulations, EXHIBIT 1 - Draft Development Agreement
entitlements, grants, permits and other approvals have been adopted, issued, and/or granted by City relating to the Project (collectively “Existing Approvals”), including, without limitation, all of the following:
1. Final Environmental Impact Report:
a. Final Environmental Impact Report (FEIR11- 05) for the Preserve Residential Project (Stockton City Council Resolution No. 08-0496);
b. Addendum/Initial Study to Previously- Certified Final Environmental Impact Report (P09- 160) for the Delta Cove Planned Development Project (Stockton City Council Resolution No. 10-0355);
2. Vesting Tentative Map (Map contained in Exhibit C and Conditions of Approval contained in Exhibit D):
a. Vesting Tentative Map for large lots (VTM P09-160) (Stockton City Council Resolution No. ___________);
b. Two-Year Time Extension and Amendments to the Previous Conditions of Approval for the Delta Cove Vesting Tentative Map, Located West of Interstate 5 (I -5), and Bounded by Bear Creek to the North, Mosher Slough to the South and West, and the Existing Twin Creeks Estates Neighborhood to the East (TM14-07/P15-500) (Stockton Planning Commission Resolution No. 2017-08-10-0501);
c. Two-Year Time Extension for an Approved Vesting Tentative Map (Delta Cove, VTMP09-160/P19- 0585) (Stockton Planning
Commission Resolution No. 2020-05-14-0301; and
d. One-Year Time Extension for an Approved Vesting Tentative Map for Del ta Cove (VTM P09-160/P19- 0585) (Stockton Planning Commission Resolution No. 2021-06-24-0302.
3. General Plan Amendment (GPA11-05) (Stockton City Council Resolution 08-0497);
4. Planned Development (PD 03-08) Adopted 11/13/2008 (“Planned Development”);
5. Zoning approval (Z-13-05) (“Zoning”);
G. The Project’s “Subsequent Approvals ” (each referred to individually as a “Subsequent Approval”) shall mean those City permits, entitlements, approvals, or other grants of authority (and all text, terms and conditions of approval related thereto), that may be necessary or desirable for the development of the project, that are sought by Developer, and that are granted EXHIBIT 1 - Draft Development Agreement
by City after the City Council adopts the Approving Ordinance (defined below), including without limitation, and subdivision maps. The Project’s Existing Approvals and the Subsequent Approvals shall collectively be referred to as the “Project Approvals.”
H. On ______________, 20___ following a duly noticed and conducted public hearing, the Planning Commission of the City (“ Planning Commission”), the hearing body for purposes of the Development Agreement Statute and Enabling Resolution, adopted Resolutions that affirmed CEQA compliance for this Agreement, adopted findings that this Agreement is consistent with the City’s General Plan and the Existing Approvals and recommended that this Agreement be approved by the City Council.
I. On _________, 20__ following a duly noticed and conducted public hearing, the Stockton City Council (“ City Council”) introduced and adopted Ordinance No. ________, an ordinance that affirms CEQA compliance, that adopts findings that this Agreement is consistent with the City’s General Plan and the Existing Approvals, that approves this Agreement, and that directs this Ag reement’s execution by City (“ Approving Ordinance”). The City adopted the Approving Ordinance on _____________, 20__ and the Approving Ordinance became effective thirty (30) days later (“Effective Date”).
J. This Agreement sets forth, among other things, the applicable fees, policies, and zoning requirements that apply to development of the Project and provides Developer with a vested right to develop the Project on the Property in accordance with the City’s General Plan, and the land use designations and zoning applicable to the Property, each as in effect as of the Effective Date. Consistent with State policy expressed by Government Code section 65864, this Agreement is intended to reduce the uncertainty of the planning and entitlement process which can result in waste of resources and escalation of housing costs; provide certain assurances that Developer may proceed with development of the Project in accordance with the Project Approvals and Applicable Law (as defined herein) and subject to the terms of this Agreement; strengthen the public planning process; encourage private participation in comprehensive planning; and reduce the economic costs of development.
K. Under this Agreement, Developer will provide substantial public benefits in connection with the Project as follows:
1. Infrastructure Improvements
a. Traffic connectivity and improved circulation associated with the Project will provide convenient access to existing and future commercial shopping centers.
b. The Project will provide connection of the Twin Creeks neighborhood from Otto Drive to the existing Trinity Parkway bridge at Bear Creek.
c. New connectivity from the Project will reduce trips from Otto Drive to Hammer Lane and I-5 northbound to Eight Mile Road.
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d. Development of the Project will accelerate installation of traffic and circulation improvements that will provide improved levels of service at intersections at Hammer Lane and I -5 northbound and the Eight Mile Road interchange and improved access to the McAuliffe Middle School located on McAuliffe Road located east of I-5 via the Trinity Parkway bridge.
e. The Project will provide connectivity to future development to the south and west from Hammer Lane to Shima Tract and the I-5 and Hammer Lane interchange.
2. Civic and Municipal Benefits for Stockton Residents:
a. The Project includes single family residential development, multi-family residential development, commercial uses, open space and park and other public facilities including school and fire fac ilities. The development of the variety of residential development within the Project will support the affordability of housing options and provide new community amenities for Stockton residents.
b. The Project includes amenities including a pedestrian trail system throughout the Project that will connect to the existing trail system at Westlake and Spanos Park West and the future trail system included at proposed projects on Shima Tract and Hammer Lane, a large community park and small neighborhood parks for existing and new Stockton residents.
3. Economic Benefits to City of Stockton:
a. Permits and plan check fees associated with the approval of improvement plans and final maps associated with the Project will add to financial resources to support the City of Stockton Permit Center.
b. New residents living within the Project will be added to local employment base for Stockton and San Joaquin County that could attract new business.
c. Building Permits for the Project will continue to deliver revenue that support employment at the City of Stockton during
installation of the land development improvements and home construction within the Project.
d. The development will support the success of the Stockton EXHIBIT 1 - Draft Development Agreement
Economic Stimulus Plan (“SESP”) and continue to promote local employment for Stockton residents.
e. The Community Facility Districts (“CFDs”) planned for the Project will finance the installation and maintenance of public infrastructure improvements.
f. The Project will provide improved access to existing and future commercial development and thereby increase sales tax revenue to the benefit of the City of Stockton and its residents.
g. The addition of the residential units and commercial development within the Project will increase property tax revenue to the City of Stockton and San Joaquin County.
L. As provided in this Agreement, the Parties intend to work in good faith to consider potential use of public financing for certain Public Benefit Facilities needed in connection with the Project and as identified in Section 6.1.2 under the Statewide Community Infrastructure Program, a program created to facilitate tax exempt financing of eligible impact fee and public improvement costs (“ SCIP”) (or other similar program established by the California Statewide Community Development Authority (“ CSCDA”)) or the Mello -Roos Community Facilities Act of 1982 (Government Code sections 53311 et seq. ) (“Mello-Roos Act”). The financing of such items through SCIP (or other similar CSCDA program) or a Mello-Roos Act community facilities district (“CFD”) would fulfill the express legislative goals of the Development Agreement Statute; strengthen the public planning process by linking development rights to financing of public facilities; encourage participation by private landowners in the comprehensive planning required by such financing; reduce economic risk and costs of development by spreading the costs of needed facilities over time; and allow Developer, in exchange for voluntary participation in such financing programs, to proceed with development in accordance with existing City policies, rules and regulations. The Development Agreement contains simila r financing provisions addressing the potential use of SCIP (or other similar CSCDA program), a Mello -Roos Act CFD or private financing to finance construction and/or acquisition of certain public facilities needed in connection with the Project.
M. In addition to the potential new capital facilities CFD or SCIP financing mechanisms described above, Developer has agreed to include all of the Property, other than those portions thereof to be dedicated in fee to City for public facilities, in the Citywi de Landscape Maintenance District 96 -2 and the Citywide Services and Maintenance CFD -2018-03 mandated by Council Policy 5.05 and the City’s Capital Financing and Debt Management Policy, or in its own LMD and CFD with similar requirements as the Citywide La ndscape Maintenance District 96-2 and Citywide Services and Maintenance CFD-2018-03. In order to ensure private funding of ongoing maintenance of all City owned water quality detention basins and facilities, Developer has further agreed to either (a) cause all of the Property, except portions thereof to be dedicated in fee to City for public uses, to be annexed into the City’s existing Storm Water Maintenance Assessment District No. 2005- 02 or (b) establish a new CFD maintenance district and a special tax levy for such purpose that would include all of the Property, except portions thereof to be EXHIBIT 1 - Draft Development Agreement
dedicated in fee to City for public uses, with the option to be selected by City.
N. City has further determined that by entering into this Agreement, City will furthe r the purposes set forth in the Development Agreement Ordinance and City will benefit from an increased range of housing options and publicly accessible civic and recreational space created by the Project for residents of City.
O. For the reasons recited herein, City and Developer have determined that the Project is a development for which this Agreement is appropriate. This Agreement will eliminate uncertainty regarding Project Approvals, thereby encouraging planning for, investment in, and commitment to use and development of the Property. Development of the Property in accordance with the terms of this Agreement will in turn provide substantial public benefits to the City, thereby achieving the goals and purposes for which the Development Agreement Law was enacted.
P. The terms and conditions of this Agreement have undergone review by City staff, the Planning Commission and the City Council at publicly noticed meetings, and have been found to be fair, just and reasonable, in conformance with the Development Agreement Law and consistent with the goals, policies, standards and land use designations specified in the General Plan, and consistent with the requirement under Government Code Section 65867.5, and further, the City Council finds that the economic interes ts of City’s citizens and the public health, safety and welfare will be best served by entering into this Agreement.
Q. City has approved this Agreement by Ordinance No. , a dopted by the City
Council on , 20 (“ Enacting Ordinance”).
AGREEMENT
ARTICLE 1.
DEFINITIONS
“Advanced Costs” is defined in Section 6.1.3.
“Agreement” means this Development Agreement and all Exhibits hereto.
“Agreement Date” means the reference date identified in the preamble to this Agreement.
“Annual Review” is defined in Section 10.1.
“Applicable City Regulations” is defined in Section 4.2.
“Applicable Law” means the Applicable City Regulations and all State and Federal laws and regulations applicable to the Property and the Project as such State and Federal laws are enacted, adopted, and amended from time to time, as more particularly described in Section 4.5 (Changes in Applicable Law).
“Assignee” is defined in Section 13.3.
EXHIBIT 1 - Draft Development Agreement
“Assignment” is defined in Section 13.2.
“Capital Financing and Debt Management Policy” means the City’s Debt Management Policy for Capital and Land Secured Financing, Policy Number 17.01.040, with an effective date of October 30, 2018, as it may be amended from time to time.
“CEQA” is defined in Recital E.
“CEQA Guidelines” means the State CEQA Guidelines (California Code of Regulations, Title 14, section 15000, et seq.), as amended from time to time.
“CFD” is defined in Recital L.
“CFD Bonds” is defined in Section 6.1.4.
“Changes in Applicable Law” is defined in Section 4.5.
“City” means the City of Stockton, a California municipal corporation.
“City Council” means the City Council of the City of Stockton.
“City Manager” means the City’s City Manager or his or her designee.
“City Parties” means and includes City and its elected and appointed officials, officers, agents, employees, contractors and representatives.
“Claims” means liabilities, obligations, orders, claims, damages, fines, penalties and expenses, including attorneys’ fees and costs.
“Connection Fees” means those fees charged by City on a citywide basis or by a utility provider to utility users as a cost for connecting water, sanitary sewer, and other applicable utilities, except for any such fee or portion thereof that constitutes an Impact Fee, as defined below.
“Consultant Fees” is defined in Section 5.2.
“CSCDA” is defined in Recital L.
“Default” is defined in Section 14.1.
“Developer” is defined in the first paragraph and its permitted successors.
“Development Agreement Law” is defined in Recital B.
“Development Agreement Ordinance” is defined in Recital B.
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“Development Agreement Statute” is defined in Recital A.
“Effective Date” means the date that this Agreement becomes effective as determined under Section 3.1.
“Enacting Ordinance” refers to the Ordinance identified in Recital Q.
“Exactions” means exactions that have been imposed by City under this Agreement or in connection with the Existing Approvals, including requirements for acquisition, dedication or reservation of land, and obligations to construct on-site or off-site public and private infrastructure improvements such as roadways, utilities or other improvements necessary to support the Project, whether such exactions constitute subdivision improvements, mitigation measures in connection with environmental review of the Project, or impositions made under Applicable City Regulations.
The term “Exactions” also includes future exactions imposed by City in connection with the issuance of Subsequent Approvals provided such future exactions are contemplated by the Existing Approvals or otherwise permitted by the terms of this Agreement. For purposes of this Agreement, Exactions do not include Impact Fees.
“Existing Approvals” is defined in Recital E.
“Extension Term” is defined in Section 3.2.2.
“FEIR” is defined in Recital E.
“Final” means the date on which (1) all applicable appeal periods for the filing of any administrative appeal challenging the issuance or effectiveness of each of the Existing Approvals and this Agreement shall have expired and no such appeal shall have been filed; (2) in the event of any administrative appeal or Litigation Challenge challenging any of the Existing Approvals and/or this Agreement, that the administrative appeal or Litigation Challenge is settled or there is a final determination or judgment upholding the Existing Approvals and this Agreement, as applicable, and the administrative appeal or Litigation Challenge is no longer subject to appeal.
“General Plan” means the Envision Stockton 2040 General Plan of the City of Stockton adopted by the City Council on December 4, 2018.
“HOA” is defined as a Home Owner’s Association.
“Impact Fees” means the monetary amount charged by City in connection with a development project for the purpose of defraying all or a portion of the cost of mitigating the impacts of the development project or development of the public facilities related to the development project, including, any “fee” as that term is defined by Government Code section 66000(b). For purposes of this Agreement, a fee that meets both the definitions of an Impact Fee and an Exaction will be considered to be an Impact Fee. Impact Fees do not include Other Agency Fees.
“Impact Fee Lock Period” is defined in Section 5.1.
EXHIBIT 1 - Draft Development Agreement
“Initial Term” is defined in Section 3.2.1.
“Litigation Challenge” is defined in Section 9.1.1.
“Litigation Delay” is defined in Section 15.4.2.
“LMD-96-2” is defined in Section 6.2.6.
“Major Modification” is defined in Section 12.2.
“Mello-Roos Act” is defined in Recital L.
“Minor Modification” is defined in Section 12.2.
“Mortgage” means any mortgage, deed of trust, security agreement, and other like security instrument encumbering all or any portion of the Property, or any of the Developer’s rights under this Agreement.
“Mortgagee” means the holder of any Mortgage, and any successor, assignee or transferee of any such Mortgage holder.
“Municipal Code” means and refers to the Municipal Code of the City of Stockton, as amended from time to time.
“New City Laws ” means and includes any ordinances, resolutions, orders, rules, official policies, standards, specifications, guidelines or other regulations, which are promulgated or adopted by the City (including but not limited to any City agency, body, department, officer or employee) or its electorate (through their power of initiative or otherwise) after the Effective Date.
“Notice of Breach” is defined in Section 14.1.
“Other Agency Fees” means fees and charges imposed by other governmental agencies which in some cases are collected by City on behalf of such other agencies.
“Party/Parties” is defined in the introductory paragraph preceding the Recitals of this Agreement.
“Permitted Delay” is defined in Section 15.4.1.
“Planning Commission” means the Planning Commission of the City of Stockton.
“Prevailing Wage Laws” is defined in Section 7.2.1.
“Processing Fees” means all fees charged on a City -wide basis to cover the cost of City EXHIBIT 1 - Draft Development Agreement
processing of Subsequent Approvals and further including any required supplemental or further environmental review, plan checking, inspection and monitoring at the rates which are in effect at the time those permits, approvals, parcel and/or subdivision maps, entitlements, reviews or inspections are applied for or requested.
“Project” is defined in Recital D.
“Project Approvals ” means the Existing Approvals and, when and as approved in accordance with the terms of this Agreement, the Subsequent Approvals.
“Property” is defined in Recital C.
“Public Benefit Facilities” is defined in Section 6.1.2.
“Special Tax” is defined in Section 6.1.5.
“Subdivision Map Act ” means California Government Code sections 66410 through 66499.58, as it may be amended from time to time.
“Subsequent Approvals” is defined in Section 8.1.
“Subsequent Discretionary Approvals” is defined in Section 8.1.2.
“Subsequent Ministerial Approvals” is defined in Section 8.1.1.
“Term” is defined in Section 3.2.1.
ARTICLE 2.
REPRESENTATIONS AND WARRANTIES
2.1 City Representations and Warranties. C
ity represents and warrants to Developer
that:
2.1.1 Corporation Formation and Powers. City is a municipal corporation, and has all necessary powers under the laws of the State of California to enter into and perform the undertakings and obligations of City under this Agreement.
2.1.2 Duly Authorized. The execution and delivery of this Agreement and the performance of the obligations of City hereunder have been duly authorized by all necessary City Council action and all necessary approvals have been obtained.
2.1.3 Valid Obligation . T
his Agreement is a valid obligation of City and is
enforceable in accordance with its terms.
Th
e foregoing representations and warranties are made as of the Agreement Date.
During the Term of this Agreement, City shall, upon learning of any fact or condition which would EXHIBIT 1 - Draft Development Agreement
cause any of the warranties and representations in this Section 2.1 not to be true, immediately give written notice of such fact or condition to Developer.
2.2 Developer Representations and Warranties. Developer represents and warrants to City that:
2.2.1 Company Formation and Powers. Developer has all necessary powers under the laws of the State of California to own property and in all other respects enter into and perform the undertakings and obligations of Developer under this Agreement.
2.2.2 Duly Authorized. The execution and delivery of this Agreement and the performance of the obligations of Developer hereunder have been duly authorized by all necessary corporate, partnership or company action and all necessary shareholder, member or partner approvals, as applicable, have been obtained.
2.2.3 Valid Obligation. T
his Agreement is a valid obligation of Developer and is enforceable in accordance with its terms.
2.2.4 Developer’s Property Interest. Developer has a legal or equitable interest in each of the parcels comprising the Property.
2.2.5 No Bankruptcy. Developer has not (a) made a general assignment for the benefit of creditors; (b) filed any voluntary petition in bankruptcy or suffered the filing of any involuntary petition by Developer’s creditors; (c) suffered the appointment of a receiver to take possession of all, or substantially all, of Developer’s assets; (d) suffered the attachment or other judicial seizure of all, or substantially all, of Developer’s assets; or (e) admitted in writing its inability to pay its debts as they come due.
The
foregoing representations and warranties are made as of the Agreement Date. During the Term of this Agreement, Developer shall, upon learning of any fact or condition which would cause any of the warranties and representations in this 2.2 not to be true, immediately give written notice of such fact or condition to City.
ARTICLE 3.
EFFECTIVE DATE AND TERM
3.1 Effective Date. The Effective Date of this Agreement (“Effective Date ”) shall be
the later of (a) the date that is thirty (30) days after the date the Enacting Ordinance is adopted, or (b) the date this Agreement is fully executed by the Parties. Said date shall function as the Effective Date for purposes of this Agreement. The Parties acknowledge that section 65868.5 of the Development Agreement Statute requires that this Agreement be recorded with the County Recorder no later than ten (10) days after the City enters into this Agreement, and that the burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all permitted successors in interest to the Parties to this Agreement. The City Clerk shall cause such recordation.
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3.2 Term
3.2.1 Initial Term of Agreement . S ubject to extension for Litigation Delay as provided in Section 15.4.2 below, the “ Initial Term” of this Agreement shall commence on the Effective Date and shall expire on the 15 th anniversary of the Effective Date, unless extended or earlier terminated as provided herein. As used herein “Term ” means the Initial Term, plus any Extension Term (defined below).
3.2.2 Extension of Initial Term . The Initial Term of this Agreement shall be extended from the date of expiration of the Initial Term until the date which is five (5) years following the expiration of the Initial Term (“ Extension Term”), provided that at the end of the Initial Term the following must be completed and/or complied with:
(a) D
eveloper is not, at the time, in Default of any of its obligations hereunder following notice and expiration of applicable cure periods;
(b) the applicable Developer warranties and representations in Section
2.2 above continue to be true and correct;
(c) Developer has obtained a large lot Final Map for the Project (which may include a Subdivision Improvement Agreement with security for phased performance); and
(d) The City of Stockton Community Development Director is satisfied that Developer has either (i) substantially completed the work specified as Phase 1 and Phase 2 as set forth in the Delta Cove Planned Development, or (ii) substantially commenced the work specified within the Master Agreement (defined below) by the end of the Initial Term. The Master Agreement is an agreement (to be agreed upon during the Term) between City and Developer regarding the phasing of the Project pursuant to Condition 19 of the Vesting Tentative Map for large lots (VTM P09-160).
Following the expiration of the Term, or the earlier completion of development of the Project and satisfaction o f all of Developer's obligations in connection therewith, this Agreement shall be deemed terminated and of no further force and effect.
3.2.3 Memorandum of Extension. If the conditions under Section 3.2.2 are met and an Extension Term applies, City and Developer agree to execute, acknowledge and record in the Official Records of San Joaquin County a memorandum evidencing the Extension Term.
ARTICLE 4.
DEV
ELOPMENT OF THE PROPERTY
4.1 Vested Rights . T he Property is hereby made subject to the provisions of this Agreement. Developer shall have the vested right to develop the Property and the Project in accordance with and subject to the Existing Approvals, the Subsequent Approvals, Applicable Law and this Agreement, which shall control the permitted uses, density and intensity of use of the Property, rate of development, and the maximum height and size of buildings on the Property.
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4.2 Applicable City Regulations. City and Developer acknowledge and agree that per the Development Agreement Statute, City is restricted in its authority to limit its police power by contract and that the particular limitations, reservations and exceptions set forth in this Agreement are intended to reserve to City those selected police powers that cannot be so limited.
Notwithstanding the foregoing reservations and exceptions, it is the intent of City and Developer that this Agreement be construed to provide Developer with rights afforded by law, including but not limited to, the Development Agreement Statute. Therefore, the laws, rules, regulations, official policies, standards, and specifications of City applicable to the development of the Property and Project shall be, collectively, the following “Applicable City Regulations”:
4.2.1 Project Approvals and Agreement. Those rules, regulations, official policies, standards, and specifications of the City set forth in the Project Approvals and this Agreement;
4.2.2 City Rules as of Effective Date .
With respect to matter s not addressed by
and not otherwise inconsistent with the Project Approvals and this Agreement, those laws, rules, regulations, official policies, standards and specifications (including City ordinances and resolutions) in force and effect on the Effective Date governing permitted uses, building locations, timing and manner of construction, densities, intensities of uses, heights and sizes, subdivisions and requirements for on- and off-site infrastructure and public improvements, including the City’s zoning development standards applicable to the Project and the Property;
4.2.3 Procedural Rules. N
ew City Laws that relate to hearing bodies, petitions,
applications, notices, findings, records, hearings, reports, recommendations, appeals and any other matter of procedure imposed at any time, provided such New City Laws are uniformly applied on a City-wide basis to all substantially similar types of development projects and properties;
4.2.4 Building Codes . N
ew City Laws that revise City’s uniform construction
codes, including City’s building code, plumbing code, mechanical code, electrical code, fire code, grading code and other uniform construction codes, as of the date of permit issuance, provided, that such New City Laws are uniformly applied on a City- wide basis to al l substantially similar types of development projects and properties;
4.2.5 Public Health and Safety. New City Laws that are necessary to protect physical health and safety of the public; provided, that such New City Laws are uniformly applied on a City-wide basis to all substantially similar types of development projects and properties;
4.2.6 New City Laws Not in Conflict. New City Laws that do not materially interfere with Developer’s vested rights under this Agreement or the Project Approvals;
4.2.7 New City Laws Mandated by Changes in Applicable Law.
New City Laws
mandated by Changes in Applicable Law as provided in Section 4.5 below; and
4.2.8 Other New City Laws .
New City Laws that do not apply to the Property
and/or the Project due to the limitations set forth above , but which the Parties mutually agree in EXHIBIT 1 - Draft Development Agreement
writing shall be incorporated into the Applicable City Regulations, including conforming changes in the capacity of certain Public Benefit Facilities.
4.3 Life of Project Approvals . T he term of any and all Project Approvals shall automatically be extended for the longer of the Term of this Agreement or the term otherwise applicable to such Project Approvals. Without limiting the generality of the foregoing, pursuant to the Subdivision Map Act, any vesting or tentative maps heretofore or hereafter approved in connection with development of the Project or the Property shall be extended for the Term (and may be subject to other extensions provided under the Subdivision Map Act). In the event that this Agreement is terminated prior to the expiration of the Term, the term of any Project Approval and the vesting period for any subdivision map approved as a Project Approval shall be the term otherwise applicable to the approval, which shall commence to run on the date that the Project Approval was issued. If upon expiration of earlier termination of this Agreement and the Project Approvals, Developer has not developed the entirety of the Property consistent with this Agreement and the Project Approvals, then the City Council, i n its discretion, at any time may change the underlying and use designations or entitlements applicable to the parcels comprising such Property consistent with all Applicable Laws and procedures.
4.4 Timing of Development. C
ity and Developer acknowledge that Developer cannot
at this time predict what portions of the Project will be included within any phase of the Project, when or the rate at which the phases will be developed or the order in which each phase will be developed. Such decisions can depend upon numerous factors that are not within the control of Developer, such as market orientation and demand, interest rates, absorption rates of residential units, availability of financing and other similar factors. In particular, and not in any limitation of any of the foregoing, since the California Supreme Court held in Pardee Construction Co. v. The Town of Camarillo, 37 Cal.3d 465 (1984), that the failure of the parties therein to consider and expressly provide for the timing of development resulted in a later -adopted initiative restricting the timing of development prevailing over such parties’ agreement, it is the desire to avoid that result by acknowledging that, except as otherwise provided for in this Agreement (including with respect to phasing of the Public Benefit Facilities and other public improvements and community benefits), Developer’s vested rights under this Agreement include the right to develop the Property and the Project in such order and at such rate and at such times as Developer deems appropriate in the exercise of its discretion, subject to the terms, requirements and conditions of the Existing Approvals and this Agreement, including provisions addressing required phasing of on- and-off site public improvements.
4.5 Changes in Applicable Law. A
s provided in Section 65869.5 of the Development
Agreement Law, this Agreement shall not preclude the applicability to the Project of changes in laws, regulations, plans or policies, to the extent that such changes ar e specifically mandated and required by (i) changes in State or Federal laws or (ii) any regional governmental agency that, due to the operation of State law (and not the act of City through a memorandum of understanding, joint exercise of powers authority, or otherwise that is undertaken or entered into following the Effective Date) (“Changes in Applicable Law”). In the event Changes in Applicable Law prevent or preclude compliance with one or more provisions of this Agreement, the Parties shall meet and confer in good faith in order to determine whether such provisions of this Agreement shall be modified or suspended, or performance thereof delayed, as may be necessary to comply with EXHIBIT 1 - Draft Development Agreement
Changes in Applicable Law. Following the meeting between the Parties, the provisions of this Agreement may, to the extent legally feasible, and upon mutual agreement of the Parties, be modified or suspended, but only to the minimum extent necessary to comply with such Changes in Applicable Law. In such event, this Agreement together with any required modifications shall continue in full force and effect. Nothing in this Agreement shall preclude Developer from contesting by any available means (including administrative or judicial proceedings) such Changes in Applicable Law or their applicability to the Project.
ARTICLE 5.
FEES, EXACTIONS, AND IMPACT FEE CREDITS
5.1 Processing Fees . C
ity may charge, and Developer agrees to pay, all uniformly applied Processing Fees for land use approvals, parcel and/or subdivision maps, grading and building permits, general plan maintenance fees, and other entitlements and permits that are applied for on any or all portions of the Project.
5.2 C
onsultant Fees . In addition to charging the foregoing Processing Fees, City, in its reasonable discretion and following consultation with Developer, may contract with one or more outside inspectors, engineers or consultants to perform all or any portion of the monitoring, inspection, testing and evaluation services to be performed in connection with construction a nd development of the Project (“ Consultant Fees”). Developer shall pay to City, within thirty (30) days following City’s written demand therefor and the City’s submission of invoices, the full amount of all Consultant Fees, plus a fifteen percent (15%) administration charge. The Consultant Fees, together with the associated administrative charge, shall be in addition to, and not in lieu of, the Processing Fees; provided, however, City agrees not to double-charge Developer (through the imposition of both a Processing Fee and Consultant Fee) for any individual monitoring, inspection, testing or evaluation service.
5.3 Connection Fees. D
eveloper shall pay Connection Fees lawfully adopted by the City, and/ or any Connection Fees assessed by third- party utility providers and other agencies assessing such fees at the rates in effect from time to time.
5.4 Other Agency Fees. N
othing in this Agreement shall preclude City from collecting from Developer Other Agency Fees, which the City is required or has agreed to collect pursuant to Applicable Law.
5.5 Exactions. C
ity may impose and Developer shall comply with those Exactions required by this Agreement and the Existing Approvals. In addition, City may impose Exactions in connection with the Subsequent Approvals provided such Exactions are contemplated by the Existing Approvals or otherwise permitted by the terms of this Agreement.
5.6 Area of Benefit . C
onsistent with Municipal Code section 16.72.050, Area of Benefit, City shall use good faith, diligent efforts to create one or mor e “Areas of Benefit” to facilitate third party developer’s reimbursement of Developer for its/their respective prorate share of the out -of-pocket third party costs incurred by Developer in connection with the design and construction of certain eligible ove rsized storm drainage facilities, sanitary sewer main line EXHIBIT 1 - Draft Development Agreement
extensions, water main extensions, street improvements and traffic signals, which the City determines benefits properties in addition to the Property. After establishing each Area of Benefit and Developer’s completion and City’s acceptance of the applicable oversized facilities, City shall reimburse Developer from Area of Benefit fees paid by third party developer(s) if and when they develop their properties in the future; however, such Area of Bene fit reimbursement obligations shall be subject to the provisions of City Municipal Code section 16.72.050(f) limiting Areas of Benefit to a term of twenty (20) years.
5.7 Taxes and Assessments. Developer covenants and agrees to pay prior to delinquency all existing taxes and assessments and any and all new taxes or assessments that are adopted after the Effective Date and which conform to the terms of this Agreement, including Section 6.1 below. Nothing herein shall be deemed to limit Developer’s right to pay any new or increased taxes or assessments under protest and pursue a challenge in law or equity to any such new or increased taxes or assessments.
ARTI
CLE 6.
FINANCING AND PUBLIC IMPROVEMENTS
6.1 Financ
ing Tools for Public Improvement Capital Costs.
6.1.1 Potential SCIP or CFD Formation . S ubject to Section 6.1.6 below, the Parties shall cooperate in good faith to establish (i) a capital facilities CFD pursuant to the Mello- Roos Act and the City’s Capital Financing and Debt Management Policy or (ii) a SCIP or other program established under the authority of CSCDA, which is consistent with the Project Approvals and Applicable Law. Nothing herein shall obligate Developer to use public financing sources to pay the costs of Public Benefit Facilities (defined below). If a CFD option is utilized the boundaries of the CFD shall be coextensive with those of the Property unless the Parties otherwise agree and, upon the filing of a petition by Developer pursuant to Government Code section 53318(c), the City Council shall consider adoption of a resolution of intention to establish the CFD and, following adoption, City shall use good faith, diligent efforts, in compliance with Government Code sections 53318 et seq. , to establish and implement the CFD pursuant to the terms of this Agreement, including scheduling of necessary public hearings and adoption of a resolution of formation.
Developer shall cooperate with City in the pursuit of SCIP financing or formation of a CFD, as applicable, including the timely submission of all petitions, waivers and consents. City, at Developer’s expense (but subject to reimbursement as provided in Section 6.1.3 below), shall be responsible for conducting all proceedings for the establishment of the CFD or use of SCIP financing, including the adoption of all resolutions, ordinances and orders and recording of maps, notices, releases and the conduct of all hearings, elections and other public meetings under the Mello-Roos Act to establish the CFD, levy the Special Taxes and, as appropriate, provide for issuance of the CFD Bonds.
6.1.2 Public Benefit Facilities. S
ubject to the cap on the total tax and assessment
rate set forth in Section 6.1.5 below, the CFD, if utilized, shall finance the design and acquisition or construction of those public facilities necessary for development of the Project which may lawfully be financed under the Mello- Roos Act and other applicable law, including (i) off -site backbone public improvements which are not described in the PFFP; and (ii) to the extent proceeds EXHIBIT 1 - Draft Development Agreement
of CFD Bonds remain available after all non- PFFP backbone offsite public improvements ha ve been fully funded, on- site, in -tract pu blic improvements, including park improvements, storm drainage improvements, public roadways and sidewalks (collectively, the “ Public Benefit Facilities”). Public Benefit Facilities shall specifically exclude off -site public improvements described in the PFFP. Financing of the Public Benefit Facilities with CFD Bonds shall be subject to approval of the City, based on the unqualified written opinion of a Council -approved bond counsel that interest on the CFD Bonds will be federally tax exempt. The Parties a gree that in connection with issuance of the CFD Bonds, Developer and City will enter into a funding and acquisition agreement in a form reasonably acceptable to City’s bond counsel setting forth, among other things, the procedures for and mechanism by which Developer will be reimbursed, out of available proceeds of the CFD Bonds, for Public Benefit Facilities constructed and/or paid for by Developer. If a SCIP is utilized, the SCIP shall similarly prioritize financing of off -site backbone public improvements which are not described in the PFF.
6.1.3 Advance of Expenses; Reimbursement. Developer shall advance to City the actual out of pocket costs of undertaking a SCIP financing or formation of the CFD, sale of CFD Bonds, and other costs and expenses associated with the SCIP or CFD, as applicable (“Advanced Costs”). Such Advanced Costs may include, without limitation, legal, financial, appraisal and engineering costs and expenses associated with (i) formation of the CFD; (ii) determination of the rate and method of apportionment and levy of the Special Tax; (iii) review and approval of the plans and specifications for construction of the Public Benefit Facilities; (iv) determination of the value of property; (v) sale of CFD Bonds; and (vi) any other costs or expenses reasonably incurred in connection with the CFD or SCIP as applicable. All such Advanced Costs, together with those reasonable out-of-pocket legal, engineering and financial services costs incurred by Developer directly related to establishment and implementation of the CFD or SCIP financing which have been approved by the City Manager or his or her designee in his or her reasonable discretion and which may lawfully be financed under the Mello- Roos Act or SCIP, if applicable, and other Applicable Law, shall be reimbursed to Developer from proceeds of the sale of CFD Bonds or the SCIP financing, as applicable, to the extent permitted by Applicable Law.
6.1.4 Issuance of CFD Bonds . I
f a CFD is utilized then, upon successful
formation of the CFD and approval of the Special Tax, and subject to the restrictions in this Section
6.1.4 and in Section 6.1.5 below, bonds shall be issued (“ CFD Bonds”), the proceeds of which shall be used to finance the Public Benefit Facilities, to the extent the Public Benefit Facilities legally and feasibly may be financed utilizing this method of financing. The amounts, timing, use and terms of the issuance and sale of the CFD Bonds shall be determined by the City, in consultation with the Developer and the City’s bond counsel, financial advisors and/or underwriters, and shall provide for priority use of funding to ensure completion of applicable off- site public infrastructure improvements needed for the Project. Subject to the state of development of the Property and prevailing bond market conditions, the timing of the sale of the CFD Bonds shall be coordinated, as closely as possible, with the phasing of the development of the Property to provide financing for the Public Benefit Facilities in a timely fashion to meet the needs of the respective phases of development of the Project. If necessary, the CFD Bonds may be issued in series to help correspond to such phases. Developer agrees to assist the City in the issuance of the CFD Bonds by providing financial and development information reasonably required for due diligence and disclosures relating to issuance of the CFD Bonds and to provide for any required EXHIBIT 1 - Draft Development Agreement
continuing disclosures under applicable securities laws.
6.1.5 Special Tax. I f a CFD financing is utilized then the CFD shall be authorized to levy, and Developer shall approve (by affirmative vote or other legally acceptable method), a tax (“Special Tax”) in accordance with the rate and method of apportionment of such Special Tax approved in the completed proceedings for the CFD. The Speci al Tax shall be determined and collected annually by the City against all taxable parcels as defined by the rate and method of apportionment of the Special Tax for the CFD. The Special Tax shall be collected in the same manner and at the same time as ad valorem property taxes, unless some other method of collection is specified by the City. The Special Tax shall be set at an amount sufficient to pay the estimated annual principal of and interest on the CFD Bonds, together with required debt service coverage requirements and the annual costs of calculation, collection and disbursement of the Special Tax and the annual administration, engineering, and inspection costs associated with the CFD; provided, however, per the City’s Capital Financing and Debt Management Policy the Special Tax so set shall be in an amount such that, at the time the rate and method of apportionment of the Special Tax is approved, the estimated total annual taxes and assessments to be levied on each taxable parcel within the CFD district shall not exceed 2.00% of the parcel’s projected assessed valuation based on a reasonable estimate of the sale price for the parcel and the residential or commercial unit to be constructed thereon, which estimated sale price has been approved by t he City Manager or his or her designee in his or her reasonable discretion. The rate and method of apportionment shall be drafted to allow a property owner to permanently satisfy the Special Tax (and remove the lien thereof) as to any taxable parcel by prepayment pursuant to Section 53344 of the Mello-Roos Act.
6.1.6 City’s Reservation of Discretion.
It is expressly acknowledged, understood
and agreed by the Parties that (i) City reserves full and complete discretion with respect to legally required findings that must be made in connection with the proposed use of the SCIP or formation of a CFD, (ii) nothing in this Agreement is intended to or shall limit City’s ability to adopt legally required findings with respect to participation in the SCIP or formation of the CFD, and (iii) nothing in this Agreement is intended to or shall prejudge or commit to City regarding the findings and determinations to be made with respect thereto.
6.1.7 Costs If No SCIP or CFD Is Utilized .
In the event that City is unable to
make the legally required findings in connection with the proposed use of the SCIP or formation of the CFD and the issuance of CFD Bonds for any reason, City shall not be liable for any resulting costs to Developer and Developer shall nonetheless be responsible for constructing all of the Public Benefit Facilities at its expense (but subject to potential reimbursement of excess fair share costs as provided in Section 5.6 above).
6.1.8 Developer’s Cooperation. In connection with the establishment and implementation of a SCIP or CFD financing, Developer (i) will execute all necessary petitions and ballots and waive all election waiting and protest periods at City’s request and prior to the issuance of any building permit on any phase of the Project; (ii) support City’s adoption of local policies related to use of SCIP or CFD financing, as applicable; (iii) cooperate in the development of rate and method of apportionment in the case of a CFD; and (iv) if a CFD is utilized, allow special tax liens to encumber all phases of the Project in order to accomplish the required Public Benefit EXHIBIT 1 - Draft Development Agreement
Facilities construction projects.
6.1.9 Developer’s Consent. In the event City and Developer mutually agree upon use of a CFD or SCIP financing then Developer will be deemed to have irrevocably consented to the formation of the CFD or SCIP as applicable, the issuance of CFD Bonds or SCIP bonds, the imposition of the Special Tax against the Property at rates and pursuant to a method of apportionment appropriate to fund the debt service on the CFD Bonds or SCIP bonds sold to finance the Public Benefit Facilities, and agreed not to protest or object to formation of the CFD or SCIP or levy of an appropriate Special Tax consistent herewith. Developer has agreed to the financing provisions set forth in this Section 6.1 and to perform the obligations hereunder in exchange for the consideration and benefits provided to Developer by City under this Agreement, including the vested right to develop the Property. Developer acknowledges and agrees that first priority in use of CFD Bonds or SCIP financing proceeds shall be for off -site Public Benefit Facilities as provided in Section 6.1.2 above.
6.1.10 Notification of Fees, Taxes, and Ass es
sments. Developer shall provide
actual and conspicuous notice to potential homeowners, in a form reasonably acceptable to the City and in compliance with all applicable legal requirements (including applicable provisions of Government Code § 53341.5) of any and all fees, taxes, and assessments to be charged to any and all purchasers of real property interests in the Project. Developer shall provide potential homeowners with a written and itemized notice of such projected costs and the manner in which they will be charged to the potential homeowner, which notice the potential homeowner shall sign.
Developer shall retain a copy of each signed notice in Developer’s files for at least fifteen (15) years following the date of such notice and shall provide a copy of each such signed notice to the City’s Community Development Director.
6.1.11 Limited Liability of City . N
otwithstanding any other provision of this
Agreement, City shall not be liable for or obligated to pay any costs or expenses in connection with a SCIP or CFD financing or the Public Benefit Facilities except to the extent monies are available (from Advanced Costs, SCIP proceeds, proceeds of CFD Bonds, or Special Taxes) and specifically authorized by law for payment of such costs or expenses.
ARTI
CLE 7.
DEVELOPMENT STANDARDS AND REQUIREMENTS
7.1 Compliance with Applicable Law. D
eveloper, at its sole cost and expense, shall
comply with requirements of, and obtain all permits and approvals required by Applicable Law, including requirements of regional, State and Federal agencies having jurisdiction over the Project.
7.2 Prevailing Wage Requirements.
7.2.1 Public Benefit Facilities. Developer acknowledges and agrees that all public improvements paid for directly or indirectly with the proceeds of CFD Bonds or other public funds, including all Public Benefit Facilities, will constitute construction, alteration, demolition, installation, or repair work done under contract and paid for in whole or in part out of public funds as provided under California Labor Code section 1720. Accordingly, Developer shall comply with, EXHIBIT 1 - Draft Development Agreement
and cause its contractors and subcontractors to comply with, all State Labor Code requirements and implementing regulations of the Department of Industrial Relations pertaining to “public works,” including the payment of prevailing wages in connection with development of the Project (collectively, “Prevailing Wage Laws”). Developer shall require the contractor for the Project or any portion thereof involving any such publicly financed improvements, to submit, upon request by City, certified copies of payroll records to City, and to maintain and make records available to City and its designees for inspection and copying to ensure compliance with Prevailing Wage Laws. Developer shall also include in each of its contractor agreements, a provision in form acceptable to City, obligating the contractor to require its contractors and/or subcontractors to comply with Prevailing Wage Laws, and to submit, upon request by City, certified copies of payroll records to City and to maintain and make such payroll records available to City and its designees for inspection and copying during regular business hours at the Property or at another location within City.
7.2.2 Developer Indemnity. Developer shall defend (with counsel reasonably acceptable to the City), indemnify, assume all responsibility for, and hold harmless City and its officers, officials, employees, volunteers, agents and representatives from and against any and all present and future liabilities, obligations, or ders, claims, damages, fines, penalties and expenses (including attorneys’ fees and costs) arising out of or in any way connected with Developer’s or its contractors’ obligations to comply with all Prevailing Wage Laws, including any and all Claims that may be made by contractors, subcontractors or other third party claimants pursuant to Labor Code sections 1726 and 1781.
7.3 Community Benefit. The Project provides the Infrastructure Improvements, Civic and Municipal Benefits for Stockton Residents and Economic Benefits to the City of Stockton as detailed in Recital K.
ARTI
CLE 8.
COOPERATION AND IMPLEMENTATION
8.1 Subse quent Approvals. Certain subsequent land use approvals, entitlements, and permits other than the Existing Approvals (collectively, “ Subsequent Approvals ”), will be necessary or desirable for implementation of the Project. The Subsequent Approvals may include the following ministerial and discretionary applications and permits: amendments of the Existing Approvals, grading permits, building permits, sewer and water connection permits, certificates of occupancy, lot line adjustments, site plans, development plans, land use plans, building plans and specifications, parcel maps and/or subdivision maps, conditional use permits, design review, demolition permits, improvement agreements, encroachment permits, and any amendments to, or repealing of, any of the foregoing. In connection with any Subsequent Approval, the City shall exercise its discretion in accordance with Applicable Law, the Project Approvals and, as provided by this Agreement, including the reservations of authority set forth herein.
8.1.1 Subsequent Ministerial Approvals. “Subs
equent Ministerial Approvals”
are permits or approvals that are required by Applicable Law and that are to be issued upon compliance with uniform, objective standards, and regulations. They include applications for road construction permits or authorizations; grading and excavation permits; building permits, EXHIBIT 1 - Draft Development Agreement
including electrical, plumbing, mechanical, Title 24 Electrical, and Title 24 Handicap permits or approvals; certificates of occupancy; encroachment permits; water connection permits; and any other similar permits required for the development and operation of the Project.
8.1.2 Subsequent Discretionary Approvals. All other Subsequent Approvals, including amendments of the Project Approvals, site development plan or development area plan approvals, improvement agreements, architectural r eview permits, use permits, lot line adjustments, subdivision maps, preliminary and final development plans, re-zonings, permits that are not Subsequent Ministerial Approvals, re -subdivisions, and any amendments to, or repealing of, any of the foregoing, are “Subsequent Discretionary Approvals”.
8.2 Processing Applications for Subsequent Approvals.
8.2.1 Developer Covenant to Timely Submit Complete Applications. Developer acknowledges that City cannot begin processing applications for Subsequent Approvals until Developer submits complete applications on a timely basis. Developer shall use its best efforts to (i) provide to City in a timely manner any and all documents, applications, plans, and other information necessary for City to carry out its obligation s hereunder; and (ii) cause Developer’s planners, engineers, and all other consultants to provide to City in a timely manner all such documents, applications, plans and other materials required under Applicable Law. It is the express intent of Developer and City to cooperate and diligently work to obtain any and all Subsequent Approvals.
8.2.2 City Covenant to Timely Process Complete Applications. Upon submission by Developer of all appropriate applications and processing fees for any pending Subsequent Approval, City shall, to the full extent allowed by law, promptly and diligently, subject to City ordinances, policies and procedures regarding hiring and contracting, commence and complete all steps necessary to act on Developer’s currently pending Subsequent Approval applications including: (i) providing at Developer’s expense and subject to Developer’s request and prior approval, reasonable overtime staff assistance, additional staff and/or staff consultants for concurrent, expedited planning and processing of each pending Subsequent Approval application; (ii) if legally required, providing notice and holding public hearings; and (iii) acting on any such pending Subsequent Approval application.
8.2.3 Processing Consistent with Vested Rights. With the Existing Approval s,
City has made a final policy decision that the Project is in the best interests of the public health, safety and general welfare. Applications for Subsequent Ministerial Approvals that are consistent with this Agreement and the Existing Approvals shall be processed and considered in a manner consistent with the vested rights granted by this Agreement and shall be deemed to be tools to implement those final policy decisions and shall be approved by City so long as they are consistent with this Agreement and the Existing Approvals. While City expressly reserves its discretion with respect to all Subsequent Discretionary Approvals, City agrees that it shall not use its authority in considering any application for a Subsequent Discretionary Approval to change the policy decisions reflected by the Existing Approvals, including by reducing the density or number of residential units or changing the permitted uses of the Property or the permitted rate of development, or otherwise to prevent development of the Proj ect as set forth in the Existing EXHIBIT 1 - Draft Development Agreement
Approvals.
8.2.4 City Discretion. Nothing herein shall limit the ability of City to require the necessary reports, analysis, or studies to assist in determining that the requested Subsequent Ministerial Approval is consistent with this Agreement and the Existing Approvals. If the City determines that an application for a Subsequent Ministerial Approval is not consistent with this Agreement or the Existing Approvals and should be processed as an application for a Subsequent Discretionary Approval rather than a Subsequent Ministerial Approval, the City shall specify in writing the reasons for such determination and may propose a modification which would be processed as a Subsequent Ministerial Approval. Developer shall then either modify the application to conform to this Agreement and the Existing Approvals, as the case may be, or the City shall process the application as an application for a Subsequent Discretionary Approval.
8.3 Other Agency Subsequent Approvals; Authority of City. O ther public agencies
not within the control of City may possess authority to regulate aspects of the development of the Property separately from or jointly with City, and this Agreement does not limit the authority of such other public agencies. Nevertheless, City shall be bound by, and shall abide by, its covenants and obligations under this Agreement in all respects when dealing with any such agency regarding the Property. City shall cooperate with Developer, to the extent appropriate and as permitted by law, in Developer’s efforts to obtain, as may be required, Other Agency Subsequent Approvals.
8.4 Subse
quent CEQA Review. The City has certified the FEIR, which evaluates the environmental effects of full development, operation and use of the Project, and ha s imposed all feasible mitigation measures to reduce the significant environmental effects of the Project. The Parties understand that the FEIR is intended to be used not only in connection with the Existing Approvals, but also, to the extent legally permitted, in connection with necessary Subsequent Approvals. However, the Parties acknowledge that certain Subsequent Approvals may legally require additional analysis under CEQA. For example, a change in the Project could require additional analysis under CEQA if the triggering conditions identified in CEQA Guidelines section 15162 are met. In the event supplemental or additional CEQA review is required for a Subsequent Approval, City shall limit such supplemental or additional CEQA review to the scope of anal ysis mandated by CEQA in light of the scope of City’s discretion to be exercised in connection with the Subsequent Approval. Developer acknowledges that, if the City determines based upon supplemental or additional CEQA review that the Project will result in new significant effects or substantially increase the severity of effects that were identified in the EIR, City may require additional feasible mitigation measures necessary to mitigate such impacts. In the event further mitigation measures are identified by such additional environmental review, City may require, and Developer shall comply at its expense with, all feasible mitigation measures necessary to substantially lessen new or substantially more severe significant environmental impacts of the Project, which were not foreseen at the time of execution of this Agreement.
ARTI
CLE 9.
THIRD PARTY LEGAL CHALLENGE, INDEMNITY AND INSURANCE
9.1 Cooperation in the Event of Legal Challenge.
EXHIBIT 1 - Draft Development Agreement
9.1.1 Cooperation by Parties. City and Developer shall cooperate in the defense of any court action or proceeding instituted by a third party or other governmental entity or official challenging the validity of any provision of this Agreement or the Project Approvals (“Litigation Challenge”), and the Parties shall keep each other informed of all developments relating to such defense, subject only to confidentiality requirements that may prevent the communication of such information.
9.1.2 Potential Joint Defense .
If Developer desires to contest or defend a
Litigation Challenge and the Parties determine to undertake a joint defense or contest of such Litigation Challenge: i) the Parties will cooperate in the joint defense or contest of such challenge; ii) Developer shall select the attorney(s) to undertake such defense, subject to City’s approva l, which shall not be unreasonably withheld; iii) Developer will take the lead role in defending such Litigation Challenge; iv) upon Developer’s request, City shall enter into a joint defense agreement in a form reasonably acceptable to the City Attorney t o facilitate the sharing of materials and strategies related to the defense of such Litigation Challenge without waiver of attorney client privilege; v) Developer shall reimburse City, within forty -five (45) days following City’s written demand therefor, which may be made from time to time during the course of such litigation, all reasonable costs incurred by City in connection with the Litigation Challenge.
9.1.3 Potential Separate Defense. If Developer desires to contest or defend any Litigation Challenge and if at any time one or both of the Parties determine that they require separate representation: i) Developer shall take the lead role in defending such Litigation Challenge; ii) Developer shall be separately represented by legal counsel of its choice; iii) in any action or proceeding, City shall be separately represented by the legal counsel of its choice, selected after consultation with Developer (including consultation as to the scope and budget for such separate representation), with reasonable costs of such representation to be paid by Developer; iv) Developer shall reimburse City, within forty-five (45) days following City’s written demand therefor, which may be made from time to time during the course of such litigation, all reasonable costs incurred by City in connection with the Litigation Challenge; v) prior to exceeding any previously established budget for the separate City legal representation, City shall confer with and obtain Developer’s input on any proposed budget augmentation or scope revision; and vi) upon Developer’s request, City shall enter into a joint defense agreement in a form reasonably acceptable to the City Attorney to facilitate the sharing of materials and strategies related to the defense of such Litigation Challenge without waiver of attorney client privilege.
9.1.4 Cost Awards and Proposed Settlements. Developer shall indemnify, defend, and hold harmless City Parties from and against any damages, attorneys’ fees or cost awards, assessed or awarded against City by way of judgment, se ttlement, or stipulation entered in connection with a Litigation Challenge. Any proposed settlement of a Litigation Challenge by a Party shall be subject to the approval of the other Party, such approval not to be unreasonably withheld, conditioned or delayed. If the terms of the proposed settlement would constitute an amendment or modification of this Agreement or any Project Approvals, the settlement shall not become effective unless such amendment or modification is approved by City in accordance with Applicable Law, and the City reserves its full legislative discretion with respect thereto.
9.2 Indemnity. D
eveloper shall indemnify, at City’s request defend, and hold the City EXHIBIT 1 - Draft Development Agreement
Parties harmless from and against any and all Claims arising directly as a result o f Developer’s acts, omissions, negligence or willful misconduct in connection with Developer’s performance under this Agreement or arising directly as a result of Developer’s (or Developer’s contractors, subcontractors, agents, or employees) work performed in connection with the development of the Property or the Project, including without limitation, Claims involving bodily injury, death or property damage. Developer’s indemnification obligations set forth in this Section shall not apply to the extent any such Claims are the result of the sole negligence or willful misconduct of any City Party.
9.3 I
nsurance . Prior to commencement of construction of the Project, Developer shall procure and maintain, or cause its contractor(s) to procure and maintain, until the earlier of (a) the expiration of the Term; or (b) the completion of the Project, a commercial general liability policy in an amount not less than Five Million Dollars ($5,000,000) combined single limit, including contractual liability together with a comprehensive automobile liability policy in the amount of Two Million Dollars ($2,000,000), combined single limit. Such policy or policies shall be written on an occurrence form, so long as such form of policy is then commonly available in the commercial insurance marketplace and shall be placed with insurers with a current A.M. Best’s rating of no less than A -:VII or a rating otherwise approved by the City in its sole discretion. If Developer desires to satisfy the foregoing insurance requirements through its contractor, then Developer shall require in its construction contract with the general contractor that said general contractor comply with all of the requirements of this Section 9.3. Developer or its contractor shall furnish at City’s request appropriate certificate(s) of insurance evidencing the insurance coverage required hereunder, and City Parties shall be named as additional insured parties in such policies.
The certificate of insurance shall contain a statement of obligation on the part of the carrier to notify City of any material change, cancellation or termination of the coverage at least thirty (30) days in advance of the effective date of any such material change, cancellation or termination (ten (10) days advance notice in the case of cancellation for nonpayment of premiums) where the insurance carrier provides such notice to the Developer. Coverage provided hereunder by Developer or its contractor shall be primary insurance and shall not be contributing with any insurance, self-insurance or joint self -insurance maintained by City, and the policy shall contain such an endorsement. The insurance policy or the endorsement shall contain a waiver of subrogation for the benefit of City.
ARTI
CLE 10.
ANNUAL REVIEW
10.1 Periodic Review. As required by California Government Code Section 65865.1 and pursuant to Section 16.128.110 of the Development Agreement Ordinance, the City of Stockton Planning Commission shall review this Agreement and all actions taken pursuant to the terms of this Agreement with respect to the development of the Project every twelve (12) months to determine good faith compliance with this Agreement (“ Annual Review”). Specifically, the Annual Review shall be conducted for the purposes of determining good faith compliance with the terms and/or conditions of this Agreement. Each Annual Review shall also document the status of Project development. In the event the Planning Commission recommends modification or termination of this Agreement in connection with such Annual Review, the action to e ffectuate such modification or termination must be taken by City Council.
EXHIBIT 1 - Draft Development Agreement
10.2 Conduct of Periodic Review. T he annual review shall be conducted as provided in this Section 10.2. By December 1st of each year, Developer shall provide documentation of its good faith compliance with this Agreement during the calendar year, including a completed annual review form in a form reasonably specified by City from time to time. The information required to be provided as part of the annual review may include, among other i tems, the status of all roadway extensions; the status of anticipated final maps; the status of Project phasing, including infrastructure and Public Parks completed per Infrastructure Phasing Plan; and the status of building permit issuances. If the City Manager finds good faith compliance by Developer with the terms of this Agreement, Developer shall be notified in writing and the review for that period shall be concluded. If the City Manager is not satisfied that Developer is performing in accordance with the terms and conditions of this Agreement, the City Manager shall prepare a written report specifying why the Developer may not be in good faith compliance with this Agreement, refer the matter to the City Council, and notify Developer in writing at least fifteen (15) business days in advance of the time at which the matter will be considered by the City Council. This notice shall include the time and place of the City Council’s public hearing to evaluate good faith compliance with this Agreement, a copy of the City Manager’s report and recommendations, if any, and any other information reasonably necessary to inform Developer of the nature of the proceeding. The City Council shall conduct a public hearing at which Developer must submit evidence that it ha s complied in good faith with the terms and conditions of this Agreement. Developer shall be given an opportunity to be heard at the hearing. The findings of the City Council on whether Developer has complied with this Agreement for the period under review shall be based upon substantial evidence in the record. If the City Council determines, based upon substantial evidence, that Developer has complied in good faith with the terms and conditions of this Agreement, the review for that period shall be concluded. If the City Council determines, based upon substantial evidence in the record, that Developer has not complied in good faith with the terms and conditions of this Agreement, or there are significant questions as to whether Developer has complied with the terms and conditions of this Agreement, the City Council, at its option, may continue the hearing and may notify Developer of the City’s intent to meet and confer with Developer within thirty (30) days of such determination, prior to taking further action. Following such meeting, the City Council shall resume the hearing in order to further consider the matter and to make a determination regarding Developer’s good faith compliance with the terms and conditions of this Agreement. In the event City determines Developer is not in good faith compliance with the terms and conditions of this Agreement, City may give the Developer a written Notice of Breach, in which case the provisions of Article 14, below, shall apply.
10.3 Failure to Conduct Annual Review. F
ailure of City to conduct an annual review
shall not constitute a waiver by the City of its rights to otherwise enforce the provisions of this Agreement nor shall Developer have or assert any defense to such enforcement by reason of any such failure to conduct an annual review.
ARTI
CLE 11.
MORTGAGEE PROTECTION
11.1 Mortgagee Protection. N either entering into this Agreement nor a breach hereof shall defeat, render invalid, diminish, or impair the lien of any Mortgage made in good faith and EXHIBIT 1 - Draft Development Agreement
for value. Nothing in this Agreement shall prevent or limit Developer, at its sole discretion, from granting one or more Mortgages encumbering all or a portion of Developer’s interest in the Property or portion thereof or improvement thereon as security for one or more loans or other financing, but all of the terms and conditions contained in this Agreement shall be binding upon and effective against and shall run to the benefit of Mortgagee who acquires title or possession to the Property, or any portion thereof, by foreclosure, trustee’s sale, deed in lieu of foreclosure or otherwise. Developer shall pro vide the City with a copy of the deed of trust or mortgage within ten (10) days after its recording in the official records of San Joaquin County; provided, however, that Developer’s failure to provide such document shall not affect any Mortgage, including without limitation, the validity, priority, or enforceability of such Mortgage.
11.2 Mortgagee Not Obligated N
o Mortgagee (including one who acquires title or
possession to the Property, or any portion thereof, by foreclosure, trustee’s sale, deed in lieu of foreclosure or otherwise) shall have any obligation to construct or complete construction of improvements, or to guarantee such construction or completion; provided, however, that a Mortgagee shall not be entitled to devote the Property to any use except in full compliance with this Agreement and the other Project Approvals nor to construct any improvements thereon or institute any uses other than those uses or improvements provided for or authorized by this Agreement, or otherwise under the Project Approvals. Except as otherwise provided in this Section
11.2, all of the terms and conditions contained in this Agreement and the other Project Approvals shall be binding upon and effective against and shall run to the benefit of any person or entity, including any Mortgagee, who acquires title or possession to the Property, or any portion thereof.
11.3 Notice of Default to Mortgagee .
If City receives a notice from a Mortgagee
requesting a copy of any Notice of Default given Developer hereunder and specifying the address for service thereof, then City agrees to use its diligent, good faith efforts to deliver to such Mortgagee, concurrently with service thereon to Developer, any Notice of Default given to Developer. Each Mortgagee shall have the right during the same period available to Developer to cure or remedy, or to commence to cure or remedy, the event of Default claimed, or the areas of noncompliance set forth in City’s Notice of Default. If a Mortgagee is required to obtain possession in order to cure any Default, the time to cure shall be tolled so long as the Mortgagee is attempting to obtain possession, including by appointment of a receiver or foreclosure, but in no event may this period exceed 120 days from the date the City delivers the Notice of Default to Developer.
11.4 No Supersedure . N
othing in this Article 11 shall be deemed to supersede or release a Mortgagee or modify a Mortgagee’s obligations under any subdivision or public improvement agreement or other obligation incurred with respect to the Project outside this Agreement, nor shall any provision of this Article 11 constitute an obligation of City to such Mortgagee, except as to the notice requirements of Section 11.3.
ARTI
CLE 12.
AMENDMENT OF AGREEMENT AND PROJECT APPROVALS
12.1 Amendment by Written Consent. E xcept as otherwise expressly provided herein (including Article 10 relating to City’s annual review and Article 14 relating to termination in the event of a breach), this Agreement may be terminated, modified, or amended only by mutual EXHIBIT 1 - Draft Development Agreement
written consent of the Parties hereto or their successors in interest or assignees and in accordance with the provisions of Government Code sections 65967, 65867.5 and 65868, and City Municipal Code Section 16.128.
12.2 Major Modifications to Agreement . A
ny amendment to this Agreement which
affects or relates to (a) the Term; (b) permitted uses of the Property; (c) provisions for the reservation or dedication of land; (d) conditions, terms restrictions or requirements for subsequent discretionary actions; (e) the type, location, density and intensity of the use of the Property or the maximum height or size of proposed buildings; or (f) monetary contributions or providing of other community benefits by Developer, shall be deemed a “ Major Modification” and shall require giving of notice and a public hearing before the Planning Commission and City Council. Any amendment which is not a Major Modification shall be deemed a “Minor Modification” and shall not, except to the extent otherwise required by Applicable Law, require notice of public hearing before the Parties may execute an amendment hereto. The City Manager or his or her designee shall have the authority to determine if an amendment is a Major Modification or a Minor Modification.
12.3 Minor Modification .
The City Manager or his or her designee shall have the authority to review and approve amendments to this Agreement provided that such amendments are not Major Modification. No public notice shall be required for a Minor Modification.
12.4 Requirement for Writing. N
o modification, amendment or other change to this
Agreement or any provision hereof shall be effective for any purpose unless specifically set forth in writing which refers expressly to this Agreement and is signed by duly authorized representatives of both City and Developer.
ARTI
CLE 13.
ASSIGNMENT
13.1 General. B ecause of the necessity to coordinate development of the entirety of the Property pursuant to plans for the Project, particularly with respect to the provision of on- and off- site public improvements and public services and benefits, certain restrictions on the right of Developer to assign or transfer its interest under this Agreement with respect to the Property, or any portion thereof, are necessary in order to assure the achievement of the goals, objectives and public benefits of the Project and this Agreement. Developer agrees to and accepts the restrictions set forth in this Article 13 as reasonable and as a material inducement to City to enter into this Agreement.
13.2 Notice of Assignment.
Developer shall provide the City with written notice of any proposed transfer or assignment of Developer’s rights or obligations hereunder (each, an “Assignment”) at least thirty (30) days prior to such Assignment and request City’s consent to such Assignment, as provided herein. Each such notice of proposed Assignment shall be accompanied by evidence of the corporate, limited liability company or other legal entity’s existence and good standing and a proposed form of Assignee’s assumption of Developer’s obligations hereunder substantially in the form of Exhibit E , which would be recorded in the Official Records of San Joaquin County concurrent with the transfer. Developer shall pay the EXHIBIT 1 - Draft Development Agreement
actual costs borne by City in connection with its review of the proposed Assignment, including the costs incurred by the City Attorney’s Office.
13.3 Assignment Processing. N
otwithstanding any other limitations in this Article 13, Developer may, upon provision of Notice, execution of an agreement documenting such Assignment in accordance with Secti on 13.2, and provision of evidence of entity formation and good standing, at any time, assign its rights and obligations under this Agreement with respect to all or any portion of the Property without the consent of City to any person, partnership, joint venture, firm, company, corporation or other entity (any of the foregoing, an “Assignee”) acquiring all or a portion of the Property.
13.4 Release of Transferring Developer. Upon a transfer of all or a portion of the Property, Developer shall be released from any further liability or obligations hereunder with respect to the portion so transferred and the Assignee shall be deemed to be the Developer under this Agreement with respect to such transferred Property as specified in the assignment and assumption agreement provided: (i) neither Developer nor Assignee is in default under this Agreement at the time of such transfer; (ii) Developer and Assignee have executed and acknowledged and delivered to City for recordation in the Official Records of the County an assignment and assumption agreement substantially in the form of Exhibit E attached hereto; and (iii) the Assignee has expressly assumed for the benefit of City the obligations of Developer as to the portion of the Property so transferred. No release of De veloper shall be effective unless and until each of the above conditions have been met. Notwithstanding anything to the contrary contained in this Agreement, if a Assignee Defaults under this Agreement, such Default shall not constitute a Default by Developer (or any other Assignee) with respect to any other portion of the Property hereunder and shall not entitle City to terminate or modify this Agreement with respect to such other portion of the Property.
13.5 Intentionally Omitted.
13.6 Partial A
ssignment. Subject to the limitations set forth in this Article 13, in the event of a transfer of a portion of the Property, Developer shall have the right to assign its rights, duties and obligations under this Agreement that are applicable to the transferred portion, and retain all rights, duties and obligations applicable to the retained portions of the Property. Upon Developer’s request, City, at Developer’s expense, shall cooperate with Developer and any proposed Assignee to allocate rights, duties and obligations under this Agreement and the Project Approvals between the assigned portion of the Property and the retained Property. Assignee shall succeed to the rights, duties, and obligations of Developer only with respect to the parcel or parcels, or portion of the Property so purchased, transferred, ground leased or assigned, and Developer shall continue to be obligated under this Agreement with respect to any remaining portions of the Property retained by Developer and not assigned.
13.7 Successive Assignm
ent. In the event there is more than one Assignment under the provisions of this Article 13, the provisions of this Article 13 shall apply to each successive Assignment and Assignee.
13.8 Other Permitted Transfers. T
he provisions in this Article 13 shall not be deemed
EXHIBIT 1 - Draft Development Agreement
to prohibit or otherwise restrict Developer from (i) granting easements or licenses or modifying existing easements to facilitate development of the Property consistent with the Project Approvals; encumbering the Property or any portion hereof or of the improvements thereon by a Mortgage securing financing with respect to the Property or Project; (iii) transferring all or a portion of the Property pursuant to a foreclosure, conveyance in lieu of foreclosure, or other remedial action in connection with a Mortgage, or to any transferee from a Mortgagee or owner of the Property upon foreclosure or after a conveyance in lieu of foreclosure; (iv) transferring title to individual residential units and obtaining evidence of termination of this Agreement with respect to any such transferred units; or (v) transferring any completed components of project common areas, and certain limited obligations that are appropriate, to an HOA
ARTICLE 14.
DEFAULT; REMEDIES; TERMINATION
14.1 Breach and Default.
Subject to Permitted Delays or by mutual consent in writing, and except as otherwise provided by this Agreement, breach of, failure, or delay by either Party to perform any term or condition of this Agreement shall constitute a “Default.” In the event of any alleged Default of any term, condition, or obligation of this Agreement, the Party alleging such Default shall give the defaulting Party notice in writing specifying the nature of the alleged Default and the manner in which the Default may be satisfactorily cured (“ Notice of Breach ”). The defaulting Party shall cure the Default within thirty (30) days following receipt of the Notice of Breach, provided, however, if the nature of the alleged Default is non -monetary and such that it cannot reasonably be cured within such thirty (30) day period, then the commencement of the cure within such time period, and the diligent prosecution to completion of the cure thereafter at the earliest practicable date, shall be deemed to be a cure, provided that if the cure is not diligently prosecuted to completion, then no additional cure period shall be provided. If the alleged failure is cured within the time provided above, then no Default shall exist, and the noticing Party shall take no further action to exercise any remedies available her eunder. If the alleged failure is not cured, then a Default shall exist under this Agreement and the non- defaulting Party may exercise any of the remedies available under this Agreement. Further, as provided in Section 13.6 above, following transfer of a portion of the Property and partial assignment of this Agreement to an Assignee, a Default by such Assignee under this Agreement shall not constitute a Default by Developer (or any other Assignee) with respect to any other portion of the Property hereunder and shall not entitle City to terminate or modify this Agreement with respect to such other portion of the Property.
14.2 Withholding of Permits . I
n the event of a Default by Developer (where the
determination of such Default has been made by the City Council based on substantial evidence presented at a noticed public hearing), City shall have the right to refuse to issue any permit or other Subsequent Approvals to which Developer would otherwise have been entitled pursuant to this Agreement until such Default is cured. This provision is in addition to and shall not limit any actions that City may take to enforce the conditions of the Project Approvals.
14.3 Termination. I
n the event of a Default by a Party, the non- defaulting Party shall have the right to terminate this Agreement upon giving notice of intent to terminate pursuant to Government Code section 65868 and regulations of City implementing such section. Following EXHIBIT 1 - Draft Development Agreement
notice of intent to terminate, the matter shall be scheduled for consideration and review in the manner set forth in Government Code section 65867 and City regulations implementing said section. Following consideration of the evidence presented in said review before the City Council, a Party alleging Default by the other Party may give written notice of termination of this Agreement to the other Party. Termination of this Agreement shall be subject to the provisions of Section 14.8. Where Developer is the defaulting Party and Developer has previously conveyed portions of the Property and partially assigned this Agreement to one or more third party transferees, City’s right to terminate this Agreement shall be limited to those portion(s) of the Property then owned by Developer.
14.4 Specific Performance for Violation of a Condition .
If City issues a P roject
Approval pursuant to this Agreement in reliance upon a specified condition being satisfied by Developer in the future, and if Developer then fails to satisfy such condition, City, in addition to its other rights and remedies available under public improvement agreements, performance bonds or other instruments, shall be entitled to specific performance for the purpose of causing Developer to satisfy such condition.
14.5 Legal Actions.
14.5.1 Institution of Legal Actions. In addition to any other rights or remedies and subject to the limitation of damages in Section 14.7, a Party may institute legal action to cure, correct or remedy any Default, to enforce any covenants or agreements herein, to enjoin any threatened or attempted violation thereof, or to obtain any other remedies consistent with the purpose of this Agreement. Any such legal action shall be brought in the Superior Court for San Joaquin County, California, except for actions that include claims in which the Federal District Court for the Eastern District of the State of California has original jurisdiction, in which case the Eastern District of the State of California shall be the proper venue.
14.5.2 Acceptance of Service of Process . I
n the event that any legal action is
commenced by Developer agains t City, service of process on City shall be made by personal service upon the City Clerk of City or in such other manner as may be provided by law. In the event that any legal action is commenced by City against Developer, service of process on Developer shall be made by personal service upon D eveloper’s registered agent for service of process, or in such other manner as may be provided by law.
14.6 Rights and Remedies are Cumulative. T
he rights and remedies of the Parties are
cumulative, and the exercise by a Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same Default or any other Default by the other Party, except as otherwise expressly provided herein.
14.7 No D
amages. In no event shall a Party, or its boards, commissions, officers, agents, or employees, be liable in damages, including without limitation, actual, consequential, or punitive damages, for any Default under this Agreement. It is expressly understood and agreed that the sole legal remedy available to a Party for a breach or violation of this Agreement by the other Party shall be an action in mandamus, specific performance or other injunctive or declaratory relief to enforce the provisions of this Agreement by the other Party, or to terminate this Agreement. This EXHIBIT 1 - Draft Development Agreement
limitation on damages shall not preclude actions by a Party to enforce payments of monies or the performance of obligations requiring an obligation of money from the other Party under the terms of this Agreement including, but not limited to, obligations to pay attorneys’ fees and obligations to advance monies or reimburse monies. In connection with the foregoing provisions, each Party acknowledges, warrants and represents that it has been fully informed with respect to, and represented by counsel of such Party’s choice in connection with, the rights and remedies of such Party hereunder and the waivers herein contained, and after such advice and consultation has presently and actually intended, with full knowledge of such Party’s rights and remedies otherwise available at law or in equity, to waive and relinquish such rights and remedies to the extent specified herein, and to rely to the extent herein specified solely on the remedies provided for herein with respect to any breach of this Agreement by the other Party.
14.8 Surviving Provisions.
In the event this Agreement is terminated, neither Party shall have any further rights or obligations hereunder, except for those obligations of Devel oper set forth in Sections 9.1, 9.2 and that expressly survive termination.
ARTI
CLE 15.
MISCELLANEOUS PROVISIONS
15.1 Incorporation of Recitals, Exhibits and Introductory Paragraph. The Recitals contained in this Agreement, the introductory paragraph preceding the Rec itals and the Exhibits attached hereto are hereby incorporated into this Agreement as if fully set forth herein.
15.2 Covenants Binding on Successors and Assigns and Run with Land. Except as otherwise more specifically provided in this Agreement, this Agreement and all of its provisions, rights, powers, standards, terms, covenants and obligations, shall be binding upon the Parties and their respective successors (by merger, consolidation, or otherwise) and assigns, and all other persons or entities acquiring the Property, or any interest therein, and shall inure to the benefit of the Parties and their respective successors and assigns, as provided in Government Code section 65868.5.
15.3 Notice. Any notice, demand or request which may be permitted, required or desired to be given in connection herewith shall be given in writing and directed to the City and Developer as follows:
If to the City: City Clerk
City of Stockton
425 N. El Dorado St, 1
st Floor
Stockton , CA 95202
Telephone: (209) 937-8458
with copies to: City Manager City
of Stockton
425 N. El Dorado St, 2nd Floor
Stockton , CA 95202 Telephone:
(209) 937-8212
EXHIBIT 1 - Draft Development Agreement
and: City Attorney City
of Stockton
425 N. El Dorado St, 1st Floor
Stockton , CA 95202 Telephone:
(209) 937-8333
If to Developer:
Telephone: ( ) -_
Notices are deemed effective if delivered by certified mail, return receipt requested, or commercial courier, with delivery to be effective upon verification of receipt. Any Party may change its respective address for notices by providing written notice of such change to the other Parties.
15.4 Permitted and Litigation Relayed Delays.
15.4.1 Permitted Delay . Pe rformance by either of the Parties of an obligation hereunder shall be excused during any period of “Permitted Delay.” Permitted Delay shall mean delay beyond the reasonable control of a Party caused by (a) calamities, including without limitation earthquakes, floods, and fire; (b) civil commotion; (c) riots or terrorist acts; (d) strikes or other forms of material labor disputes; (e) shortages of materials or supplies; or (f) vandalism.
A Party’s financial inability to perform or obtain financing or adverse economic conditions generally shall not be grounds for claiming a Permitted Delay. The Party claiming a Permitted Delay shall notify the other Party of its intent to claim a Permitted Delay, the specific grounds of the same and the anticipated period of the Permitted Delay within thirty (30) business days after the occurrence of the conditions which establish the grounds for the claim. If notice by the Party claiming such extension is sent to the other Party more than thirty (30) days after the commencement of the caus e, the period shall commence to run only thirty (30) days prior to the giving of such notice. The period of Permitted Delay shall last no longer than the conditions preventing performance. In no event shall any Permitted Delay extend the Term of this Agreement.
15.4.2 Litigation Delay. If
this Agreement or any of the Existing Approvals are
still not Final as a result of a Litigation Challenge (a “Litigation Delay”), then the Initial Term of this Agreement and the time within which each Party shall be required to perform any act under this Agreement shall be extended by the period of time between the Annexation Date and the date on which the Existing Approvals and this Agreement all become Final, subject to an outside date that is 36 months after the Effective Date, at which point there shall be no further extension of the Term as a result of any Litigation Delay, unless approved by the City Council in its sole, absolute discretion.
15.5 Counterparts. Thi
s Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same EXHIBIT 1 - Draft Development Agreement
instrument.
15.6 Waivers. N otwithstanding any other provision in this Agreement, any failures or delays by any Party in asserting any of its rights and remedies under this Agreement shall not operate as a waiver of any such rights or remedies or deprive any such Party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. A Party may specifically and expressly waive in writing any condition or breach of this Agreement by the other Party, but no such waiver shall constitute a further or continuing waiver of any preceding or succeeding breach of the same or any other provision.
Consent by one Party to any act by the other Party shall not be deemed to imply consent or waiver of the necessity of obtaining such consent for the same or similar acts in the future.
15.7 Construction of Agreement. A
ll Parties have been represented by counsel in the
preparation and negotiation of this Agreement and this Agreement shall be construed according to the fair meaning of its language. The rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in interpreting this Agreement. Unless the context clearly requires otherwise, (a) the plural and singular numbers shall each be deemed to include the other; (b) the masculine, feminine, and neuter genders shall each be deemed to include the others; (c) “shall,” “will,” or “agrees” are mandatory, and “may” is permissive; (d) “or” is not exclusive; (e) “includes” and “including” are not limiting; and (f) “days” means calendar days unless specifically provided otherwise.
15.8 Headings.
Section headings in this Agreement are for convenience only and are not intended to be used in interpreting or construing the terms, covenants, or conditions of this Agreement.
15.9 Severability.
If any term or provision of this Agreement, or the application of any term or provision of this Agreement to a specific situation, is found to be invalid, or unenforceable, in whole or in part for any reason, the remaining terms and provisions of this Agreement shall continue in full force and effect unless an essential purpose of this Agreement would be defeated by loss of the invalid or unenforceable provisions, in which case any Party may terminate this Agreement by providing written notice thereof to the other Party.
15.10 Time is of the Essence .
Time is of the essence of this Agreement. All
references to time in this Agreement shall refer to the time in effect in the State of California.
15.11 Extension of Time Limits.
The time limits set forth in this Agreement may
be extended by mutual consent in writing of the Parties in accordance with the provisions of this Agreement.
15.12 Signatures. T
he individuals executing this Agreement represent and warrant that they have the right, power, legal capacity, and authority to enter into and to execute this Agreement on behalf of the respective legal entities of Developer and the City.
15.13 Entire Agreement. T
his Agreement (including all exhibits attached hereto, each EXHIBIT 1 - Draft Development Agreement
of which is fully incorporated herein by reference), integrates all of the terms and conditions mentioned herein or incidental hereto, and constitutes the entire understanding of the Parties with respect to the subject matter hereof, and all prior or contemporaneous oral agreements, understandings, representations and statements, and all prior written agreements, understandings, representations, and statements are terminated and superseded by this Agreement.
15.14 Estoppel Certificate. Developer or its lender may, at any time, and from time to time, deliver written notice to the City requesting the City to certify in writing that: (a) this Agreement is in full force and effect; (b) this Agreement has not been amended or modified or, if so amended or modified, identifying the amendments or modifications; and (c) Developer is not in Default of the performance of its obligations, or if in Default, to describe therein the nature and extent of any such Defaults. Developer shall pay, within thirty (30) days following receipt of City’s invoice, the actual costs borne by City in connection with its review of the proposed estoppel certificate, including the costs expended by the City Attorney’s Office in connection therewith.
The
Community Development Director shall be authorized to execute any certificate requested by Developer hereunder. The form of estoppel certificate shall be in a form reasonably acceptable to the City Attorney. The Community Development Director shall execute and return such certificate within thirty (30) days following Developer’s request therefor. Developer and City acknowledge that a certificate hereunder may be relied upon by tenants, assignees, investors, partners, bond counsel, underwriters, bond holders and Mortgagees. The request shall clearly indicate that failure of the City to respond within the thirty- day period will lead to a second and final request. Failure to respond to the second and final request within fifteen (15) days of receipt thereof shall be deemed approval of the matters set forth in the estoppel certificate.
15.15 Recordation of Termination. U
pon completion of performance of the Parties or
termination of this Agreement, a written statement acknowledging such completion or termination shall be recorded by City in the Official Records of San Joaquin County.
15.16 City Approvals and Actions.
Whenever a reference is made herein to an action or
approval to be undertaken by City, the City Manager or his or her designee is authorized to act on behalf of City, unless specifically provided otherwise or the context requires otherwise.
15.17 Negation of Partnership.
The Parties specifically acknowledge that the Project is a private development, that no Party to this Agreement is acting as the agent of any other in any respect hereunder, and that each Party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Agreement. None of the terms or provisions of this Agreement shall be deemed to create a partnership between or among the Parties in the businesses of Developer, the affairs of the City, or otherwise, or cause them to be considered joint venturers or members of any joint enterprise.
15.18 No Third-P
arty Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the signatory Parties and their successors and assigns, including Mortgagees. No other person shall have any right of action based upon any provision in this Agreement.
EXHIBIT 1 - Draft Development Agreement
15.19 Standard for Consents and Approvals . In cases where the written consent or approval of a party is required hereunder and a standard of review and/or timeline for the granting or withholding of such consent or approval is not set forth, such consent or approval shall not be unreasonably withheld, conditioned or delayed.
15.20 Governing State Law.
This Agreement shall be construed in accordance with the laws of the State of California, without reference to its choice of law provisions.
15.21 Exhibits. T
he following exhibits are attached to this Agreement and are hereby incorporated herein by this reference for all purposes as if set forth herein in full.
Exhi
bit A: Prope rty Description
Exhibit B: Site Plan
Exhibit C: Approved Vested Tentative Map
Exhibit D: Approved Conditions of Approval
Exhibit E: Form of Assignment and Assumption Agreement
[signatures on following page]
EXHIBIT 1 - Draft Development Agreement
IN WITNESS WHEREOF, the City and Developer have executed this Agreement as of the Effective Date.
CITY:
CITY OF STOCKTON,
a California municipal corporation
By: ______________________________
[Signature must be notarized]
ATTEST:
By:
ELIZA R. GARZA, CMC
CITY CLERK
APPROVED AS TO FORM:
By:
CITY ATTORNEY
DEVELOPER:
THE ALEX AND FAYE SPANOS FAMILY
TRUST
By: _________________________________
DEAN SPANOS,
Co-Trustee
By: _________________________________
DEA SPANOS BERBERIAN,
Co-Trustee
[Signatures must be notarized]
EXHIBIT 1 - Draft Development Agreement
EXHIBIT A
The land referred to is situated in the County of San Joaquin, City of Stockton, State of California, and is described as follows:
PARCEL ONE:
Revised Parcel A of Amended Parcel Map filed for record July 15, 1986 in Book 14 of Parcel Maps at Page 94 of Official Records, San Joaquin County.
EXCEPTING THEREFROM One Hundred Percent (100%) of all oil, mineral, gas, and other hydrocarbon substances below a depth of five hundred (500) feet, without the right of surface entry, as reserved by H & N Farms, a general partnership in the Deed recorded May 13, 1986 as Document No. 86033667 of Official Records of San Joaquin County.
APN: 071-17 0-05
PARCEL TWO:
Revised Parcel B of Amended Parcel Map filed for record July 15, 1986 in Book 14 of Parcel Maps at Page 94 of Official Records, San Joaquin County.
EXCEPTING THEREFROM One Hundred (100) percent of all oil, mineral, gas, and other hydrocarbon substances below a depth of five hundred (500) feet, without the right of surface entry, as reserved by John M. Hammer, Jr., a married man as his sole and separate property in the Deed recorded May 13, 1986 as Document No. 86033663 of Official Records of San Joaquin County.
APN: 071-170-04
PARCEL THREE:
Revised Parcel C of Amended Parcel Map filed for record July 15, 1986 in Book 14 of Parcel Maps at Page 94 of Official Records, San Joaquin County.
EXCEPTING THEREFROM as a mineral interest and not as a royalty interest , one hundred percent (100%) of all oil, mineral, gas, and other hydrocarbon substances below a depth of five hundred (500) feet under
the real property described herein, without any rights to the surface or any portion of said real property lying above a depth of 500 feet from the surface, as reserved as John Miles Hammer, Sr., a widower, et al in the Deed recorded November 13, 1985 as Document No. 85076562 of Official Records of San Joaquin County.
APN: 071-170-02
EXHIBIT 1 - Draft Development Agreement
EXHIBIT B
EXHIBIT 1 - Draft Development Agreement
EXHIBIT C
EXHIBIT 1 - Draft Development Agreement
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EXHIBIT 1 - Draft Development Agreement
EXHIBIT D
EXHIBIT 1 - Draft Development Agreement
Exhibit D – Application No. P19-0585
CONDITIONS OF APPROVAL
1. Comply with all applicable Federal, State, County , and City codes, regulations and adopted standards and pay all applicable fees. The expiration date of the vesting tentative map shall be September 9, 2021.
2. Pursuant to section 15164 of the California Environmental Quality Act Guidelines, an Addendum (P15-0500) to the previously-certified Environmental Impact Report (EIR 11-05) for the project has been prepar ed. All mitigation measures identified in the approved Addendum and the City adopted "Findings.
Statement of Overriding Considerations , Mitigation Monitoring and Reporting Program for the Delta Cove project are applicable for a second extension of the VTM.
3. Pursuant to the General Plan Action CH-5.1B, the applicant shall implement all applicable be st management practices (BMPs) and construction measures for compliance with the City’s adopted Climate Action Plan (CAP) for reducation of greenhouse gas emissions (GHC) . This includes all pre -construction, construction, and ongoing operations as identified by the CAP.
4. In order to minimize any adverse financial impact on the City of Stockton (COS) associated with development and/or use of the subject site, the owners, developers and/or successors -in-interest agrees that it will not challenge or protest any applicable fees associated with the development of the site.
5. In accordance with the policies and standards of the 2040 General Plan, the project shall pay its own way and be subject to implementation of Fiscal/Financial mitigation measures. The project's Fiscal Impact Analysis and Public Facilities Financing Plan specify and mandate those measures and financing mechanisms needed to ensure no negative fiscal impact and that there is adequate funding for infrastructure, facilities, operation, and maintenance costs.
6. The mitigation of all environmental impacts of the Project and its services, facilities, operations and maintenance (collectively, "Project Mitigation') shall be the sole and exclusive responsibility by the owners, developers and/or successors-in-interest. Such Project Mitigation may be implemented through the payment of impact fees, taxes, levies, ass essments, or other financing mechanisms. As part of the Project's exclusive obligation to cover the mitigation of all environmental impacts of the Project and its services, facilities, operations and maintenance, the City has obligations to set and determi ne Financing Mechanisms. The City shall determine whether the developer shall pay all or only some portion of "Impact Fees" imposed by the City on the development in legal effect at the time any such Impact Fees become due and payable under EXHIBIT 1 - Draft Development Agreement
the City law an d Government Code Section 66498.1, or whether some other Financing Mechanism will adequately fund such Project Mitigation obligations.
The owners, developers and/or successors -in-interest shall be responsible for the costs for the processing of all develop er-requested land use approvals including building permits, plan checks and other similar permits, when such costs are incurred by the City. If the City determines in good faith that the Fiscal Impact Analysis does not adequately include such future City processing costs, then the City shall impose those additional funding requirements needed to ensure that the processing costs to the City are fully covered by the Project.
7. The Large Lot Vesting Tentative Map is for financing and sale purposes only.
8. The Large Lot Vesting Tentative Map shall not be vested until the requested General Plan Amendment and Rezoning applications are both effective after November 18, 2010.
9. This Large Lot Vesting Tentative Subdivision Map (P09-160) shall supersede all prior-approved vesting tentative large lot and small lot maps (VTM7 -08 and VTM28-05).
10. The owners, developers and/or successors -in-interest shall dedicate and improve Otto Drive from its western termination northwest to the proposed Mosher Slough Bridge crossing to provide a four-lane arterial roadway, including full frontage improvements.
11. The owners, developers and/or successors -in-interest shall disclose to all future home buyers in this development that Trinity Parkway will be extended with a bridge crossing over Mosher Slough to Hammer Lane/Shima Tract to the south. The owners, developers and/or successors -in-interest shall install and maintain a future facilities sign at the Trinity Parkway/Otto Drive intersection. The size, text and l ocation of the sign shall be approved by the Community Development Director at the time of the construction of the above -referenced bridge.
12. The owners, developers and successors -in-interest (ODS) shall prepare a design, obtain all applicable permits and dedicate to the City all real property within the project area required for right-of-way and construction of the four-lane Mosher Slough bridge crossing, including the extension of utilities, and attendant improvements for the four-lane connection of Otto Drive between the Delta Cove project area and Shima Tract to the west, including the extension of utilities, prior to recordation of any final map containing lots abutting Otto Drive, between Mosher Slough and Street 5 (as identified in the Delta Cove Planned Development). Prior to preparing the design, the ODS shall notify the City of whether sufficient land west of the Mosher Slough for the bridge and associated connection to Shima Tract has been acquired or the ODS has entered into agreements to acquire same. If insufficient land has been acquired and the ODS demonstrates they have made reasonable efforts to acquire the land, then the EXHIBIT 1 - Draft Development Agreement
City shall follow the procedure provided for in the state Subdivision Map Act and either proceed with acquisition in accordance with the City's Public Facilities Fee program or otherwise waive necessary provisions of the condition.
13. The owners, developers and/or successors -in-interest shall disclose to all future home buyers in this development that Otto Drive wil l be extended with a bridge crossing over Mosher Slough to Shima Tract to the west. The owners, developers and/or successors -in-interest shall install and maintain a future facilities sign at the Otto Drive and westernmost street intersection shown in the Planned Development. The size, text and location of the sign shall be approved by the Community Development Director at the time of the construction of the above-referenced bridge.
14. The owners, developers and/or successors -in-interest shall provide a minimum 50-foot to 80-foot maintenance access easement from the toe of levee for flood control as required by Reclamation District 2126, San Joaquin County Flood Control and State of California Department of Water Resources and as shown in the Planned Development.
15. The owners, developers and/or successors -in-interest shall be responsible for 100% of the design and construction costs of on-site roadway and intersection improvements and roadway extensions, and public utilities identified on the vesting tentative map and/or included all applicable mitigation measures in the Addendum (P15-0500) to the previously -certified project Environmental Impact Report (EIR11-05). Improvements include but are not limited to all sewer, water, and storm drain lines, tra ffic signals, street lighting, street paving, curb, gutter, sidewalk and landscaping. If any of the above said improvements are included in the calculations for the Public Facilities Fee (PFF) Program adopted by the City Council, and the owners, developers and/or successors in-interest pays said fees at the established time of collection, the owners, developers and/or successors - in-interest may construct and request reimbursement for said constructed improvement(s) as long as the improvement(s) is included in the calculation of the above referenced fee, the requested reimbursement is in accordance with adopted Guidelines for the above referenced fee, and the reimbursement requested does not exceed the cost identified for the said improvements(s) included in the calculation of the above referenced fee. However, should the extent of identified Public Facilities Fee (PFF) improvements be revised, all or part of the Public Facilities Fee (PFF) Program repealed or suspended, or for other reasons/actions the improvements become ineligible under Public Facilities Fee (PFF) program in effect at the time of development, the owners, developers and/or successors-in-interest shall be responsible for payment of their proportionate share of the cost of said improvements at the time of the issuance of building permits.
16. Dedicate lots used for private streets as a public utility easement for the proposed public sanitary sewer and waterlines. All gated access shall be identified and conform to City Standards.
EXHIBIT 1 - Draft Development Agreement
17. The owners, developers and/or successors -in-interest shall prepare and submit a technical memorandum to be approved by the City identifying traffic calming measures required on-site. Rights-of-way and lot layouts within the vesting tentative map area may n eed to be revised to accommodate traffic calming measures which may include roundabouts, traffic circles, etc.
18. The owners, developers and/or successors -in-interest shall be responsible for design and construction costs and installation of off -site roadway and intersection improvements, including traffic signals, at the following locations as identified in the Existing Plus Approved Project (EPAP) plus Project section in the Addendum (P1 5-0500) to the previou sly-certified project Environmental Impact Report (EIR 11-05)
Otto Drive/Trinity Parkway
Otto Drive/Mariners Drive
Mariners Drive/Whitewater Lane
Mariners Drive/Biackswain Place
Mariners Drive/Sturgeon Road
Eight Mile Road/1-5 Northbound Ramps
Hammer Lane/Mariners Drive
Hammer Lane/Pershing Avenue
The ODS 7 install the identified improvements either 1) when determined to be necessary by the Community Development Director (based on the review of the required biennial traffic analysis) or 2) prior to the issuance of the 1,150 th residential building permit, whichever occurs first.
19. Prior to recordation of any part of the Vesting Tentative Large Lot Map as a small lot Final Map (Parcel Map/Subdivision Map), the owners, developers and/or successors-in-interest shall enter i nto a Master Agreement to identify the timing/phasing of improvements and provide for appropriate improvement securities. Developer shall be entitled to employ Large Lot Maps for the purpose of subdividing the project into parcels for the purpose of phasing, leasing, financing or sale.
20. The owners, developers and/or successors-in-interest shall be responsible for their proportionate share of design and construction costs for the improvements, based on traffic loadings, to reduce the significance of t he cumulative impacts at the following intersections as identified in the Future 20 35 Plus Project section in the Addendum (P15-0500) to the previously-certified project Environmental Impact Report (EIR 11-05) :
Eight Mile Road/1-5 Southbound and Northbound Ramps
Otto Drive/Trinity Parkway
Hammer Lane/Mariners Drive
Hammer Lane/Kelley Drive
EXHIBIT 1 - Draft Development Agreement
Hammer Lane/1-5 Southbound and Northbound Ramps
Hammer Lane/Pershing Avenue
21. The owners, developers and/or successors -in-interest shall dedicate and construct bus turn -outs and shelters along Trinity Parkway, Otto Drive, and any other location as required by the Community Development Director in consultation with the San Joaquin Regional Transit District, in conformance with City Standards.
Rights-of-way and lot layouts within the tentative map area may need to be revised to accommodate required locations for bus turn-outs and shelters.
22. The owners, developers and/or successors-in-interest shall be responsible to pay for their proportionate share of all project related off-site street/traffic circulation improvements needed to mitigate the project's cumulative off-site impacts. If any of the above said improvements are included in the calculations for the Public Facilities Fee (PFF) Program adopted by t he City Council, and the owners, developers and/or successors-in-interest pays said fees at the established time of collection, the owners, developers and/or successors-in -interest may construct and request reimbursement for said constructed improvement(s ) as long as the improvement(s) is included in the calculation of the above referenced fee, the requested reimbursement is in accordance with adopted Guidelines for the above referenced fee and the reimbursement requested does not exceed the cost identified for the said improvement(s) included in the calculation of the above referenced fee. However, should the extent of identified the Public Facilities Fee (PFF) improvements be revised, all or part of the Public Facilities Fee (PFF) Program repealed or susp ended, or for other reasons/actions the improvements become ineligible under the Public Facilities Fee (PFF) program in effect at the time of development, the owners, developers and/or successors -in-interest shall be responsible for payment of their propor tionate share of the cost of said improvements at the time of the issuance of building permits.
23. Provide appropriately sized utilities, including natural gas and three -phase electrical power to all City-owned and maintained facilities.
24. Deed notifications shall be recorded against all properties adjoining Bear Creek and Mosher Slough disclosing the potential for levee seepage and potential "standing groundwater" issues. Further, the owners, developers and/or successors- in-interest shall disclo se to all future home buyers in this development that there will be a paved Class 1 bicycle/pedestrian path on the crown of the Bear Creek/Mosher Slough levees.
25. The owners, developers and/or successors-in-interest shall abandon any public utilities and public utility easements not required for this development prior to the recordation of a final map.
26. The owners, developers and/or successors -in-interest shall provide a Traffic Calming Device Plan and a Master Striping Plan. The Master Striping Plan shall be prepared for the roadway network that shall include all striping/lane geometries, EXHIBIT 1 - Draft Development Agreement
and fiber optic cable interconnects of all traffic signals for the ultimate design. Said Master Striping Plan shall identify how new or widened streets transition at match points with existing streets, which may affect Right-of-Way requirements and shall be approved by t he Community Development Director prior to approval of improvement plans or any final map.
27. Trinity Parkway, at the future crossing of Mosher Slough, shall be temporarily terminated to the satisfaction of the Community Development Director.
28. Otto Drive, at the identified western terminus of the subdivision, shall be temporarily terminated to the satisfaction of the Community Development Director.
29. The owners, developers and/or successors -in-interest shall dedicate access rights to the City of Stockton along the following streets:
a. Trinity Parkway, entire length, except at the intersection with Otto Drive. b. Otto Drive, entire length, except at identified access openings in the Planned Development.
The City reserves the right to request additional access rights to be dedicated to the City of Stockton on any future submission of a small lot tentative map.
30. The owners, developers and/or successors -in-interest shall provide Flood Control access along the levees as required by the San Jo aquin County Flood Control and State of California Department of Water Resources.
31. The owners, developers and/or successors -in-interest shall design and construct the ultimate roadway improvements along (APN's 071 -170-02, 04, and 05) for Trinity Parkway and Otto Drive as part of this project.
32. The owners, developers and/or successors-in-interest shall participate in any applicable Transportation Systems Management (TSM) programs established by the City of Stockton and pay their proportionate share of the cost to provide an appropriate area for a park and ride facility.
33. The owners, developers and/or successors -in-interest shall design and dedicate right-of-way for Trinity Parkway from the existing street termination south of the Bear Creek bridge crossing to a future bridge crossing of Mosher Slough, in order to provide a four -lane arterial roadway, including full frontage improvements (the "Trinity Parkway Extension"). The ODS shall improve the westerly one -half of the Trinity Parkway Exten sion, which may include additional lane transitions and tapers, from the existing street termination south of the Bear Creek bridge crossing to Otto Drive, prior to recordation of the first small lot final map. The ODS shall improve the easterly one -half o f the Trinity Parkway Extension, including full frontage improvements, from the existing street termination south of the Bear Creek bridge crossing to Otto Drive, either: 1) when determined to be necessary by the Community Development Director (based on the review of the required biennial EXHIBIT 1 - Draft Development Agreement
traffic analysis) or 2) prior to the issuance of the 1,150th residential building permit, whichever occurs first. *
34. The owners, developers and/or successors-in-interest shall design and obtain all applic able permits for the improvement of the four -lane Trinity Parkway Extension between Mosher Slough Bridge and Hammer Lane, including the Mosher Slough Bridge crossing, frontage improvements and all utility extensions. Prior to issuance of the 1,150th residential building permit. The ODS shall construct: 1) the westerly one -half of the Trinity Parkway Extension, including frontage improvements and utility extensions from Otto Drive to the Mosher Slough bridge crossing; 2) the four lane Mosher Slough Bridge crossing and utility extensions; and 3) the westerly one - half of the Trinity Parkway Extension, including utility extensions, from the Mosher Slough bridge crossing to Hammer Lane, either: 1) when determined to be necessary by the Community Development Director (based on the review of the required traffic analysis) or 2) prior to issuance of the 1 ,390th residential building permit, whichever occurs first. Prior to preparing the design, the ODS shall notify the City of whether sufficient land south of the Mo sher Slough for the bridge and associated connection to the westerly end of Hammer Lane has been acquired or the ODS has entered into agreements to acquire same. If insufficient land has been acquired and the ODS demonstrates they have made reasonable effo rts to acquire the land, then the City shall follow the procedure provided for in the state Subdivision Map Act and either proceed with acquisition in accordance with the City's Public Facilities Fee program or otherwise waive necessary provisions of the c ondition. By providing this notice and the demonstration of reasonable effort to the City with the time allowed by this condition, the project will continue to be eligible for building permits.*
35. The owners, developers and/or successors-in-interest shall prepare a Project Report, Environmental Document and Final Design, as required by Caltrans, for the reconstruction of the Eight Mile Road/Interstate 5 interchange to reduce the significance of the project impacts as identified in Addendum (P15-0500) to the previously-certified project Environmental Impact Report (EIR 11 -05) and Addendum for this project. The timing for this requirement will occur either: 1) when determined to be necessary by the Community Development Director (based on the review of t he required biennial traffic analysis) or 2) prior to issuance of the 1 ,390th residential building permit, whichever occurs first.*
36. Should the City elect not to complete, the owners, developers and/or successors-in-interest shall prepare or cause to be prepared a Project Report, Environmental Document and Final Design, as required by Caltrans, for the reconstruction of the Hammer Lane/Interstate 5 Interchange to reduce the significance of the project impacts as identified in the Addendum (P15-0500) to the previously-certified project Environmental Impact Report (EIR11 -05) and Addendum for this project. Construction of the identified interchange improvements shall commence prior to issuance of the building permit that contains the 2700 th Dwelling Unit (DU) from the combined development of Delta Cove (Atlas Tract) and Sanctuary (Shima Tract). *
EXHIBIT 1 - Draft Development Agreement
37. Should the City elect not to complete, the owners, developers and/or successors-in-interest shall prepare or cause to be prepared a Project Report, Environmental Document and Final Design, as required by CAL TRANS, for the construction of the Otto Drive/Interstate 5 Interchange to reduce the significance of the project impacts as identified in the Addendum (P15-0500) to the previously - certified project Environmental Impact Report (EIR 11 -05) and Addendum for this project. The owners, developers and/or successors -in-interest shall pay their proportionate share, based on traffic loadings, of the construction of the identified improvements. Should the Hammer Lane/I nterstate 5 Interchange improvements not be constructed within the identified level of development, the owners, developers and/or successors -in-interest shall commence construction of the identified Otto Drive/Interstate 5 Interchange improvements prior to issuance of the building permit that contains the 2700 th Dwelling Unit (DU) from the combined development of Delta Cove (Atlas Tract), and Sanctuary (Shima Tract).*
38. The owners, developers and/or successors -in-interest shall pay their proportionate share to cover the costs for a Project Report, Environmental Document, and Final Design, as required by Caltrans, and for the construction of necessary improvements described in the Project Report for the Interstate 5 mainline system and Gateway/Interstate 5 Interchange to provide a level-of-service that conforms with State Urban Highway Standards.*
City Attorney
39. The owners, developers and/or successors -in-interest shall be responsible for the City's legal and administrative costs associated with def ending any legal challenge of the approvals for this project or its related environmental documents.
40. Pursuant to the 2040 General Plan Action Item CH -5.1B, the applicant shall implement all applicable best management practices (BMPs) and construction measures for compliance with the City’s adopted Climate Action Plan (CAP) for reduction of greenhouse gas emissions (GHG). This includes all pre -construction, construction, and ongoing operations as identified by the CAP. The CAP terms and conditions shall survive recordation of the small lot Final Map or Maps relative to the Vesting Tentative Map.
Municipal Utilities Department
41. The owners, developers a nd/or successors-in-interest shall provide permanent rights-of-way for and construct all on-site and off-site water, storm, non-potable water, and sanitary sewer facilities as designed and shown on the accepted improvement plans for the development. Any re imbursement costs for oversizing shall be determined in accordance with the Stockton Municipal Code.
42. The owners, developers and/or successors-in-interest shall prepare and submit master water, storm, sanitary sewer and non -potable water plans f or this project, EXHIBIT 1 - Draft Development Agreement
subject to approval by the Municipal Utilities Director and prior to the approval of any improvement plans. These master utility plans must identify future extensions to adjacent property.
43. All utilities shall be extended in bridge crossings over Mosher Slough and Bear Creek.
Water
44. The owners, developers and/or successors-in-interest shall prepare and submit, acceptable to the Director of Municipal Utilities, an Integrated Water Management Plan.
45. The owners, developers and/or successors -in-interest shall conduct a water system analysis, acceptable to the Director of Municipal Utilities, that demonstrates that the water system improvements to be constructed within the Ci ty of Stockton water service area are sufficient to meet the following conditions (use a Hazen - Williams Coefficient of 11 0):
For ultimate build-out of the subdivision:
c. With a given system pressure of 45 psi at all future points of connection to the City water system and no wells operating within the subdivision, the internal water system improvements shall be sized to provide at least 40 psi pressure at any location during the period of peak hour demand (peak hour demands shall be calculated at 175% of maximum daily demands),
d. With a given system pressure of 45 psi at all future points of connection to the City water system and no wells operating within the subdivision, the internal water system improvements shall be sized to provide at least 20 psi pressure at any location during the period of maximum day demand (maximum day demands shall be calculated at 210% of the average day demands) combined with a fire flow (refer to table for fire flow demands) out of any fire hydrant in the subdivision.
For phased developments of units within a subdivision (interim development):
e. With a given system pressure of 45 psi at the existing points of connection to the City water system and no wells operating within the subdivision, the internal water system improvements shall be sized to provide at least 20 psi pressure at any location during the period of maximum day demand combined with a fire flow of 1,500 gpm out of any fire hydrant in the EXHIBIT 1 - Draft Development Agreement
subdivision (maximum day demands shall be calculated at 210% of the average day demands).
Stormwater
46. The owners, developers and/or successors-in-interest shall form a maintenance assessment district, acceptable to the City of Stockton, which includes all necessary assessments to fund the operation, maintenance, repair, and replacement of the Project's Stormwater Quality Control Criteria Plan treatment devices. In addition, the owners, developers and/or successors-in-interest shall be responsible for the costs of forming the assessment district, including but not limited to the city -selected Assessment District Counsel, Engineer's Report, Proposition 218 vote, and noticing requirements.
47. The owners, developers and/or successors -in-interest will be required to obtain all necessary permits and shall meet all requirements established by the City of Stockton, San Joaquin County Flood Control and Water Conservation District prior to discharge to Mosher Slough.
48. The owners, developers and/or successors-in-interest shall dedicate in fee title to the City of St ockton, a 0.5 -acre parcel in size containing the storm drainage pump station.
Non-potable Water
49. The owners, developers and/or successors -in-interest shall prepare a master plan for the non -potable irrigation system for the withdrawal and use of no npotable water from the Project storm basins, Mosher Slough, Bear Creek, and/or other identified water sources. The master plan shall be subject to the approval of the Municipal Utilities Director. The system will consist of an intake structures, interconnections between storm basins, basins, bulkheads, pumps, non-potable water mains, etc. that would distribute non-potable water to parks, open space, streetscape, landscaping, and landscaped medians within the Project area.
50. The owners, developers and/ or successors-in-interest shall design, construct, own, and operate a permanent dewatering and groundwater discharge system to mitigate the high groundwater levels on the Project site. The owners, developers and/or successors -in-interest shall prepare Mast er Plans for the construction of a permanent dewatering system to mitigate the high groundwater levels on the Project site. Said Master Plans shall be subject to the approval of the Municipal Utilities Director. The maintenance entity, approved by the City , shall be established, and be responsible for establishing a funding mechanism for the design, permitting, construction, operation, maintenance, and repair of the approved system, prior to the recordation of any fin al map. The collection system shall be privately owned and maintained.
EXHIBIT 1 - Draft Development Agreement
51. The owners, developers and/or successors-in-interest shall design and construct the non -potable water infrastructure and appurtenances to the satisfaction of the Director of Municipal Utilities. The non -potable system will be dedicated to the City and system operation will be provided by the City with financing provided by an assessment district. Prior to recordation of any final map, the owners, developers and/or successors -in-interest shall establish an assessment d istrict, subject to approval of the City, to provide funding for the operation, maintenance, repair, and replacement of project's non -potable water system improvements, including but not limited to the pump stations, wet well and distribution systems. The non-potable irrigation system shall be constructed with each individual unit and the initial system shall be operational after the issuance of the 150th building permit or not more than two years after the recordation of any final map, whichever comes firs t". In addition, the owners, developers and/or successors-in interest shall be responsible for the costs of forming the assessment district, including but not limited to the city -selected Assessment District Counsel, Engineer's Report, Proposition 218 vote , and noticing requirements.
52. The owners, developers and/or successors -in-interest shall provide adequate room for a levee seepage collection system at the toe of the levee. This system must collect and convey levee seepage water to the public storm drainage system. The owners, developers and/or successors-in-interest shall design, construct, and operate the levee seepage collection system. The collection system shall be privately owned and maintained. The point-of-connection to the public storm drainage system shall be at a storm drainage maintenance hole, located in the public-right-of-way. The owners, developers and/or successors -in-interest shall prepare a master plan for the construction of levee seepage collection system. Said master plans shall be subject to the approval of the Mu nicipal Utilities Director and the City Engineer. Prior to the recordation of any final map, the owners, developers, and/or successors-in-interest or an entity approved by the City shall be established to fund the operation and maintenance of the approved system.
53. The owners, Developers and/or successors-in-interest shall dedicate an easement to the City of Stockton for the non-potable booster pump station.
Fire Department
54. When infrastructure development and construction begins, there shall be a minimum of two (2) Fire Department access routes into the Delta Cove project designed and maintained to meet City of Stockton standards. The first Fire Department access point will be established at Otto Drive. The second Fire Department access will be required at Trinity Parkway and the new Bear Creek Bridge.
Central Valley Flood Projection Board
55. The owners, developers and/or successors-in-interest shall be required to obtain all necessary permits from the Federal, State, County, City and/or Central Valley Flood EXHIBIT 1 - Draft Development Agreement
Protection Board prior to the repair and rehabilitation of the levees and the relocation of the dry-land levee in conjunction with the Trinity parkway Phase II ext ension in the Delta Cove Project.
56. The owners, developers and/or successors -in-interest shall implement a Traffic Monitoring Plan, as outlined in the Fehr & Peers Memorandum "Delta Cove Transportation Mitigation Phasing Assessment" (dated September 18, 2017) and submit the resulting traffic analysis to the City for review on a biennial basis commencing within six months after the completion of the Trinity Parkway Extension to Otto Drive and the opening of the roadway to through traffic.
* Improvemen ts herein identified by an asterisk (*) may be included in the calculations for the current or proposed Public Facilities Fee (PFF) Program. If any of the improvements are included in the calculations for the Public Facilities Fee Program (PFF) adopted by the City Council, and the owners, developers and/or successors-in-interest pays said fees at the established time of collection, the owners, developers and/or successors -in-interest may construct and request reimbursement for said constructed improvement(s) as long as the improvement(s) is Included in the calculation of the above referenced fee, the requested reimbursement Is in accordance with adopted Guidelines for the above referenced fee and the reimbursement requested does not exceed the cost Identifie d for the said improvement(s) Included In the calculation of the above referenced fee.
However, should the extent of identified the Public Facilities Fee (PFF) improvements be revised, all or part of the Public Facilities Fee (PFF) Program repealed or susp ended, or for other reasons/actions the improvements become ineligible under the Public Facilities Fee (PFF) program in effect at the time of development, the owners, developers and/or successors -In-interest shall be responsible for payment of their propor tionate share of the cost of said Improvements.
57. The ODS shall annex into and comply with all requirements of the Citywide Service and Maint enance Community Facili ty District (CFD), in accordance with the City Council adopted resolution 2018-07-17-1301.
EXHIBIT 1 - Draft Development Agreement
EXHIBIT E
FORM ASSIGNMENT AND
ASSUMPTION AGREEMENT
City of Stockton )
425 N. El Dorado St, 1st
Floor
)
Stockton , CA 95202 )
Attention: City Clerk )
Record for the Benefit of )
The City of Stockton )
Pursuant to Government
Code
)
Section 27383 )
(Space Above This Line for Recorder’s Use Only)
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (“ As signment Agreement”) is entered into as of the ______ day _____________of __________, 20__, by and among __________________________, a ________________________ (“ Assignor”), _____________________________, a _______________ (“Assignee”), and the City of Stockton, a municipal corporation (“City”).
R E C I T A L S
A. Assignor has entered into a Development Agreement with City effective _______________ (
Recorder’s Document No. ) (“Development Agreement”), to facilitate the development and use of that certain real property consisting of approximately acres within the City of Stockton, County of San Joaquin, State of California, which is legally described in Exhibit A to the Development Agreement and shown on the map attached to the Development Agreement as Exhibit B (“Site”). Capitalized terms used but not other wise defined herein shall have the meaning ascribed to such terms in the Development Agreement.
B. Assignor is the fee owner of the Site, [a portion of which is] designated as APNs _______________, m
ore particularly described in Attachment 1 attached hereto and incorporated herein (“Property”).
C. Assignor desires to transfer its interest in the Property to Assignee concurrently with execution of this Assignment Agreement and Assignee desires to so acquire such interest in the Property from Assignor.
D. Article 13 of the Development Agreement provides that Assignor may assign its rights and obligations under the Development Agreement to another party, provided that the EXHIBIT 1 - Draft Development Agreement
Assignor shall have provided to City at least thirty (30) days prior written notice and provided that the assignor and the assignee document the assignment in an agreement substantially in the form of this Assignment Agreement.
E. Assignor has provided the required written notice to City of its intent to enter into an assignment and assumption agreement as required by Section 13.2 of the Development Agreement.
F. Assignor desires to assign to Assignee and Assignee desires to assume all rights and obligations of Assignor under the Development Agreement _____________. Upon execution of this Assignment Agreement and transfer to Assignee of legal title to the Property, Assignor desires to be released from any and all obligations under the Development Agreement with respect to the Property.
A G R E E M E N T
NOW, THEREFORE, Assignor, Assignee and City hereby agree as follows:
1. Assignment by Assignor. Assignor hereby assigns, transfers and grants to Assignee, and its successors and assigns, all of Assignor’s rights, title and interest and obligations, duties, responsibilities, conditions, and restrictions under the Development Agreement with respect to the Property (collectively, “Rights and Obligations”).
2. Acceptance and Assumption by Assignee. Assignee, for itself and its successors and assigns, hereby accepts such assignment, and assumes all such Rights and Obligations, whether accruing before or on or after t he Assignment Agreement Effective Date (defined in Section 16 below). Assignee agrees, expressly for the benefit of City, to comply with, perform and execute all of the Rights and Obligations of Developer with respect to the Property arising from or under the Development Agreement.
3. Release of Assignor . A
ssignee and City hereby fully release Assignor from all Rights and Obligations. Both Assignor and Assignee acknowledge that this Assignment Agreement is intended to fully assign all of Assignor’s Rights and Obligations to Assignee, and it is expressly understood that Assignor shall not retain any Rights and Obligations whatsoever with respect to the Property.
4. Substitution of Assignor. Assignee hereafter shall be substituted for and replace Assignor in the Development Agreement with respect to the Property. Whenever the term “Developer” appears in the Development Agreement with respect to the Property, it shall hereafter mean Assignee.
5. Assignor and Assignee Agreements, Indemnifications and Waivers.
a. Assignee represents and warrants to City as follows:
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(i) Assignee is a ____________ duly formed within and in good standing under the laws of the State of ________________. The copies of the documents evidencing the formation of Assignee, which have been delivered to City, are true and complete copies of the originals, as amended to the date of this Assignment Agreement. Assignee has full right, power, and lawful authority to undertake all obligations as provided herein and the execution, performance and delivery of this Assignment Agreement by Assignee has been fully authorized by all requisite actions on the part of Assignee.
(ii) Assignee’s execution, delivery, and performance of its obligations under this Assignment Agreement will not constitute a default or a breach under any contract, agreement or order to which Assignee is a party or by which it is bound.
(iii) Assignee has not (a) made a general assignment for the benefit of creditors, (b) filed any voluntary petition in bankruptcy or suffered the filing of any involuntary petition by Assignee’s creditors, ( c) suffered the appointment of a receiver to take possession of all, or substantially all, of Assignee’s assets, ( d) suffered the attachment or other judicial seizure of all, or substantially all, of Assignee’s assets, (e) admitted in writing its inability to pay its debts as they come due, or ( f) made an offer of settlement, extension or composition to its creditors generally.
(iv) As of the Assignment Agreement Effective Date, Assignee will own fee simple title to the Property.
b. Assignor and Assignee hereby acknowledge and agree that the City has not made, and will not make, any representation or warranty that the assignment and assumption of the Development Agreement provided for hereunder will have any particular tax implications for Assignor or Assignee.
c. Assignor and Assignee each hereby waives and releases and each hereby agrees to indemnify and hold City harmless from any and all damages, liabilities, causes of action, claims or potential claims against City (including attorneys’ fees and costs) arising out of this Assignment Agreement.
d. Assignor acknowledges and agrees that the Rights and Obligations with respect to the Property have been fully assigned to Assignee by this Assignment Agreement and, accordingly, that Assignee shall have the exclusive right to assert any claims against City with respect to such Rights and Obligations. Accordingly, without limiting any claims of Assignee under the Development Agreement, Assignor hereby waives any claims or potential claims by Assignor against City to the extent arising solely out of the Rights and Obligations with respect to the Property.
6. Development Agreement in Full Force and Effect. Except as specifically provided herein with respect to the assignment, all the terms, covenants, conditions, and provisions of the Development Agreement are hereby ratified and shall remain in full force and effect.
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7. Recording. Assignor shall cause this Assignment Agreement to be recorded in the Official Records of San Joaquin County, California, and shall promptly provide conformed copies of the recorded Assignment Agreement to Assignee and City.
8. Successors and Assigns. Subject to the restrictions on transfer set forth in the Development Agreement, all of the terms, covenants, conditions, and provisions of this Assignment Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, successors, and assigns, pursuant to Article 13 and Section 15.2 of the Development Agreement.
9. Assignee Address for Notices. The
address of Assignee for the purpose of notices,
demands and communications under Section 15.3 of the Development Agreement shall be:
Attention:
Telephone:
With a copy to:
Attention:
Telephone:
10. Applicable Law/Venue. This Assignment Agreement shall be construed and enforced in accordance with the laws of the State of California, without reference to its choice of law provisions. Any legal actions under this Assignment Agreement shall be brought only in the Superior Court of the County of San Joaquin State of California.
11. Interpretation. All parties have been represented by counsel in the preparation and negotiation of this Assignment Agreement and this Assignment Agreement shall be construed according to the fair meaning of its language. The rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in interpreting this Assignment Agreement. Unless the context clearly requires otherwise: (a) the plural and singular numbers shall each be deemed to include the other; (b) the masculine, feminine, and neuter genders shall each be deemed to include the others; (c) “shall,” “will,” or “agrees” are mandatory, and “may” is permissive; (d) “or” is not exclusive; and (e) “includes” and “including” are not limiting.
12. Headings. Se
ction headings in this Assignment Agreement are for convenience only and are not intended to be used in interpreting or construing the terms, covenants, or conditions of this Assignment Agreement.
13. Severability. Exc
ept as otherwise provided herein, if any provision(s) of this Assignment Agreement is (are) held invalid, the remainder of this Assignment Agreement shall EXHIBIT 1 - Draft Development Agreement
not be affected, except as necessarily required by the invalid provisions, and shall remain in full force and effect unless amended or modified by mutual consent of the parties.
14. Counterparts. T
his Assignment Agreement may be executed in one or more counterparts, each of which shall be deemed to constitute an original, but all of which, when taken together, shall constitute one and the same instrument, with the same effect as if all of the parties to this Assignment Agreement had executed the same counterpart.
15. City Consent. City is executing this Assignment Agreement for the limited purpose of consenting to the assignment and assumption and clarifying that there is privity of contract between City, on the one hand, and Assignee on the other, with respect to the Development Agreement.
16. Effective Date. The Effective Date of this Assignment Agreement shall be the date upon which Assignee obtains fee title to or a ground lease for the Property and Assignor delivers evidence of the transfer to City (“ Assignment Agreement Effective Date ”). For the purposes of this Section, the evidence of transfer shall consist of a duly recorded deed or ground lease, and title report.
IN
WITNESS WHEREOF, Assignor, Assignee and City have entered into this Assignment Agreement as of the date first above written.
ASSIGNOR
___________________________________, a
___________________________________
By: ________________________________
Name: ______________________________
Its: _________________________________
[Signature must be notarized]
By: ________________________________
Name: ______________________________
Its: _________________________________
[Signature must be notarized]
ASSIGNEE
___________________________________, a
___________________________________
By: ________________________________
Name: ______________________________
Its: _________________________________
[Signature must be notarized]
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By: ________________________________
Name: ______________________________
Its: _________________________________
[Signature must be notarized]
CITY
CITY OF STOCKTON, a municipal corporation
By:_________________________________
________________________, City Manager
[Signature must be notarized]
ATTEST:
By:___________________________________
________________________, City Clerk
APPROVED AS TO FORM:
By:___________________________________
_________________________, City Attorney
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