Agenda Item no. 2_
CITY OF YUCAIPA
AND HOUSING AUTHORITY
AGENDA REPORT
TO: Honorable Mayor and City Council
Honorable Chairman and Board Members
FROM: jkk" aymond A. Casey, City Manager
VZ Ryan C. Miller, Housing and Economic Development Analyst FOR: City Council Meeting of August 8, 2022
SUBJECT: A Resolution of the City Council of the City of Yucaipa declaring a City -owned parcel located at Oak Glen and Avenue E in the City of Yucaipa to be exempt surplus land pursuant to the government code sections 54221(b)(1) and 5422(f)(1)(a), finding the declaration exempt from the California environmental quality act, taking related actions and, approve the Exclusive Negotiating Agreement - Eagle 55 Yucaipa — 8.52-acre Parcel Southeast Corner Oak Glen and Avenue E (APN 0318-061-26).
RECOMMENDATION:
That City Council:
Adopt Resolution No.2022-24 declaring, pursuant to Government Code Section 54221 that real property owned by the City located at Oak Glen and Avenue E is exempt surplus land and not necessary for the City's use; and
2. Find that such declaration is exempt from environmental review under the California Environmental Quality Act; and
3. Approve the related actions included in the resolution; and
4. Approve the Exclusive Negotiating Agreement with Eagle Yucaipa 55, LLC to negotiate the potential purchase of City -owned property located at the southeast corner of Oak Glen Road and Avenue E and authorize the City Manager to execute all related documents and make any necessary non -substantive changes.
That Yucaipa Housing Authority:
1. Approve the Exclusive Negotiating Agreement with Eagle Yucaipa 55, LLC to negotiate the potential purchase of City -owned property located at the southeast corner of Oak Glen Road and Avenue E and authorize the City Manager to execute all related documents and make any necessary non -substantive changes. -1=350-
BACKGROUND:
The City is the owner in fee simple of certain real property ("Property") located at Oak Glen and Avenue E. Disposing of the property to assist the City in meeting its obligations to provide affordable housing in the City is aligned with the state policies related to the current housing crisis, and arguably is consistent with the declaration enumerated in the surplus land statutes that " housing is of vital statewide importance to the health, safety, and welfare... and that provision of a decent home and a suitable living environment for every Californian is a priority of the highest order." (Government Code Section 54220(a)) Further, the Legislature has declared that "a shortage of sites available for housing for persons and families of low and moderate income is a barrier to addressing urgent statewide housing needs and that surplus government land, prior to disposition, should be made available for that purpose." Staff believes Disposition of the property for a 100% workforce housing project is consistent with these policies.
DISCUSSION:
Under the Surplus Land Act, Government Code Sections 54220-54233 ("Act"), surplus land is land owned in fee simple by the City for which the City Council takes formal action in a regular public meeting declaring the land is surplus and not necessary for the City's use. The Act provides that land shall be declared either surplus land or exempt surplus land before the City may take action to dispose of it consistent with the City's policies or procedures.
Under the Act, land is necessary for the City's use if the land is being used or is planned to be used pursuant to a written plan adopted by the City Council, for City work or operations. The Act specifies that the City's use does not include commercial or industrial uses, and land that is disposed of for the sole purpose of investment or generation of revenue is not necessary for the City's use.
The Property is not currently being used by the City and City staff has evaluated the Property for its potential to be used for City work or operations. Staff has determined that the Property is not suitable for the City's use.
Therefore, the Property may be deemed exempt surplus land pursuant to Government Code Section 54221. Following the adoption of the attached resolution, the City may proceed to sell or lease the Property to any entity without further regard to the requirements of the Act.
If ten or more residential units are developed on the Property, not less than 15% of the total residential units developed on the Property must be made available at an affordable housing cost or affordable rent to low income households pursuant to a covenant recorded against the land. The City must provide a copy of the covenant to HCD.
Developer EAGLE YUCAIPA 55 LLC, is prepared to work with the City to develop the Site with approximately 150-200 units of affordable rental housing, which project shall meet the affordable housing criteria of Government Code Section 37364 ("Project"). -2351-
Staff is recommending that an ENA be utilized. An ENA is the precursor to entering into a full development agreement and gives both parties a reasonable period to conduct their due diligence to move forward in negotiating the terms of the definitive agreement. The ENA period is expected to result in an approved Development and Disposition Agreement (DDA) (i.e., price and terms of payment for the land and development obligations), and an approved development plan. The ENA will serve as the framework under which the City and EAGLE YUCAIPA 55 LLC, will negotiate a DDA, which will govern the development of the site.
The ENA also affirms that the City/Yucaipa Housing Authority (YHA) will not negotiate with any other developer for the development of the site during the ENA's duration. Entering into an ENA does not convey project approval or obligate the City to grant any entitlements.
Memorandum, of Understanding with Sorenson Engineering:_ In addition to assisting the City in meeting its housing obligations, aligning with state policies related to the current housing crisis, and consistency with the declaration enumerated in the surplus land statutes that "housing is of vital statewide importance to the health, safety, and welfare... and that provision of a decent home and a suitable living environment for every Californian is a priority of the highest order", the project provides a direct benefit to the Yucaipa community in increasing the availability of quality, residential, family -oriented housing in the City. Increasingly, there is a greater percentage of the workforce living outside of the general area in which they work, resulting in longer commute times, congested roadways, and uncertainty of housing opportunities near prospective employers. Sorenson Engineering, a Yucaipa -based manufacturing company employing nearly 500 employees specializing in the highly sophisticated field of precision engineering, affirmed this trend reporting that the percentage of their employees living in Yucaipa has decreased to around 35% with their recent expansion efforts. Based on discussions with Sorenson staff, key factors in this declining percentage is the availability and cost of housing in Yucaipa. Much of Sorenson's entry level positions correlate to an income that is less than the median income in San Bernardino County. As a result, it may be appropriate to enhance the connection between Sorenson's workforce and new housing developments in Yucaipa, including those with income restrictions, by increasing the City's housing options with quality development and joint workforce options, such as this project for existing and prospective Sorenson employees.
The Memorandum of Understanding (MOU) with Sorenson Engineering (Sorenson) is a joint commitment by the City and Sorenson on the importance of quality housing in the City, and the value that employees living and working in the City brings to the individual, community, and the company. The MOU clarifies each party's responsibilities in preserving that common goal.
Specifically as it relates to this project, it includes the City fully engaging Sorenson in the design of amenities and other aspects of the project that may appeal to existing and prospective employees, and developing and providing marketing mate 1 ials that promote this and other housing developments for Sorenson to distribute to its workforce. Sorenson's responsibilities include offering input to the City on aspects of the development, collaborating with the City on ideas for marketing this and other housing developments in the community, and actively promoting this and other housing opportunities to existing and prospective employees. -3352-
This same material is thought to be appropriate to offer to other large employers in the area, such as ESRI (which already has a significant number of workers living in Yucaipa), and soon -to -be graduates from area universities.
To help reduce up -front costs for the project, staff is communicating with the County of San Bernardino (County) staff to partner with the City on this project in the form of a financial contribution from the County. The City and County have enjoyed partnerships in the past for previous housing projects, under which the County has financially contributed to the projects. If the ENA is approved, City staff will complete these discussions with County staff, and develop a Memorandum of Understanding (MOU) for City Council consideration such that the County Board would contribute funding as they have in other projects to be repaid under a Loan Agreement with Eagle. The DDA between the City and Eagle would also address the County's financial contribution and terms of repayment.
Once the DDA is negotiated, staff will return to City Council and Housing Authority for approval.
CEQA (CALIFORNIA ENVIRONMENTAL QUALITYACT):
This Resolution has been reviewed with respect to the applicability of the California Environmental Quality Act (Public Resources Code Section 21000 et seq.) ("CEQA").
The City has determined that the designation of this property as exempt surplus does not have the potential for creating a significant effect on the environment and is therefore exempt from further review under CEQA pursuant to State CEQA Guidelines Section 15060(c)(3) because it is not a project as defined by the CEQA Guidelines Section 15378.
FISCAL IMPACT:
There is no fiscal impact as a result of this item.
Attachments: Resolution No. 2022-24
Exclusive Negotiating Agreement
Existing Memorandum of Understanding
-4353-
RESOLUTION NO.2022-24
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF YUCAIPA
DECLARING A CITY -OWNED PARCEL LOCATED AT OAK GLEN AND
AVENUE E IN THE CITY OF YUCAIPA TO BE EXEMPT SURPLUS
LAND PURSUANT TO GOVERNMENT CODE SECTIONS 54221(b)(1)
And 54221(f)(1)(A), FINDING THE DECLARATION EXEMPT FROM THE
CALIFORNIA ENVIRONMENTAL QUALITY ACT, AND TAKING
RELATED ACTIONS
RECITALS:
WHEREAS, the City of Yucaipa ("City") is the owner in fee simple of that certain real property in the City located at Oak Glen and Avenue E and described on Exhibit "A" and depicted on Exhibit "B", which are attached hereto and incorporated herein by reference ("Property"). The Property is currently vacant, is approximately 8.52 acres in size, and is zoned Multiple -Residential; and
WHEREAS, the City desires to sell the Property for the development of an affordable housing project thereon in order to provide needed housing in the City and to meet its Regional Housing Needs Assessment allocations for people of all income levels; and WHEREAS, pursuant to Section 54221(b)(1) of the Surplus Land Act (Government Code Sections 54220-54234), the City Council must declare the Property to be "surplus land" or "exempt surplus land" before the City Council takes action to dispose of the Property; and WHEREAS, Government Code Section 54221(f)(1)(A) defines "exempt surplus land" to include surplus land that is transferred pursuant to Government Code Section 37364; and WHEREAS, Government Code Section 37364 authorizes a city to sell, lease, exchange, quitclaim, convey, or otherwise dispose of real property to provide housing affordable to persons and families of low or moderate income provided that the following conditions are met:
(a) Not less than 80 percent of the area of the parcel will be used for the development of housing; and
(b) Not less than 40 percent of the total number of those housing units developed on the parcel shall be affordable to households whose incomes are equal to, or less than, 75 percent of the maximum income of lower income households, and at least half of which shall be affordable to very low income households; and
(c) Dwelling units produced for persons and families of low or moderate income under Government Code Section 37364 shall be restricted by regulatory agreement to remain continually affordable to those persons and families for the longest feasible time, but not less than 30 years, with such regulatory agreement recorded in the office of the county recorder in which the housing development is located; and
-1
-354-
WHEREAS, Eagle Yucaipa 55, LLC has proposed to purchase the Property from the City for the purpose of developing an affordable housing project on the Property that complies with Government Code Section 37364; and
WHEREAS, because the proposed housing development will meet the requirements of Government Code Section 37364, staff has recommended that the City Council declare the Property to be exempt surplus land pursuant to Government Code Section 542221(f)(1)(A);
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF YUCAIPA DOES HEREBY RESOLVE, FIND, DECLARE AND ORDER AS FOLLOWS:
SECTION 1. The above recitals are true and correct and are a substantive part of this Resolution.
SECTION 2. The City Council hereby declares pursuant to Government Code Sections 54221(b)(1) and 54221(f)(1)(A) that the Property is exempt surplus land because the City intends to sell the Property to Eagle Yucaipa 55, LLC pursuant to Government Code Section 37364 for the development of an affordable housing project on the Property that complies with the requirements of Section 37364.
SECTION 3. The City Council finds that it can be seen with certainty that there is no possibility that declaring the Property exempt surplus land may have a significant effect on the environment, and thus is subject to the California Environmental Quality Act (CEQA). Further, any proposed project on the Property will be subject to environmental review as required by CEQA.
SECTION 4. Staff is hereby authorized and directed to provide a copy of this Resolution to the Department of Housing and Community Development ("HCD") in the manner required by HCD.
SECTION 5. The staff and officers of the City are hereby authorized, jointly and severally, to take such actions as they deem necessary or proper to effectuate the purposes of this Resolution and all actions previously taken are hereby ratified.
SECTION 6. The City Clerk shall certify as to the adoption of this Resolution.
PASSED, APPROVED and ADOPTED by the City Council of the City of Yucaipa , California, on this 13th day of June, 2022, by the following vote, to wit:
-2
-355-
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
City Clerk
City of Yucaipa, California
David Avila, Mayor
City of Yucaipa, California
-3
-356-
EXHIBIT "A"
DESCRIPTION OF PROPERTY
THAT PORTION OF LOT 3 OF COOKS SUBDIVISION OF A PART OF DUNLAP RANCH IN YUCAIPA VALLEY DESCRIBED AS FOLLOWS:
COMMENCING AT THE INTERSECTION OF THE EAST LINE OF SAID LOT 3 OF COOKS
SUBDIVISION AND THE SOUTH LINE OF THE PARCEL DESCRIBED IN DEED TO SAN BERNARDINO COUNTY, RECORDED IN BOOK 6158, PAGE 145 THENCE SOUTH 12 DEG 00'00" WEST ALONG SAID EAST LINE OF LOT 3 16.98 FEET TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING SOUTH 12 DEG 00'00" WEST ALONG SAID EAST LINE OF LOT 3 155.57 FEET; THENCE LEAVING SAID EAST LINE SOUTH 52 DEG 00'00" WEST 107.06 FT TO THE BEGINNING OF A CURVE CONCAVE TO THE NORTHWEST HAVING A RADIUS OF 1045.00 FEET; THENCE SOUTHWESTERLY 711.31 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 39 DEG 00'00"; THENCE NORTH 89 DEG 00'00" WEST 495.82 FEET TO THE EASTERLY LINE OF OAK GLEN ROAD THENCE NORTHEASTERLY 148.95 FEET ALONG SAID EASTERLY LINE OF
OAK GLEN ROAD, SAID LINE BEING A CURVE CONCAVE TO THE SOUTHEAST HAVING A RADIUS OF 806.00 FEET, FROM AN INITIAL RADIAL BEARING OF NORTH 46 DEG 32'24" WEST, THROUGH A CENTRAL ANGLE OF 10 DEG 35'19"; THENCE CONTINUING NORTHEASTERLY 184.18 FEET ALONG SAID EASTERLY LINE OF OAK
GLEN ROAD, SAID LINE BEING A CURVE CONCAVE TO THE SOUTHEAST HAVING A RADIUS OF 806.00 FEET, FROM AN INITIAL RADIAL BEARING OF NORTH 35 DEG 5705" WEST THROUGH A CENTRAL ANGLE OF 13 DEG 05'33"; THENCE CONTINUING NORTH 67 DEG 08'28" EAST ALONG SAID EAST LINE 220.77 FEET TO THE BEGINNING OF A CURVE CONCAVE TO THE NORTHWEST HAVING A RADIUS OF 894.00 FEET; THENCE CONTINUING ALONG SAID EASTERLY LINE NORTHEASTERLY 468.10 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 30 DEG 00'00"; THENCE NORTH 37 DEG 08'28" EAST 36.92 FEET TO THE BEGINNING OF A CURVE CONCAVE TO THE SOUTHEAST HAVING A RADIUS OF 35.00 FEET; THENCE NORTHEASTERLY
45.77 FEET MORE OR LESS ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 74 DEG 55'20" TO A POINT ON THE SOUTHERLY RIGHT OF WAY OF SAID AVENUE E; THENCE SOUTHEASTERLY 403 FEET MORE OR LESS ALONG SAID SOUTHERLY RIGHT OF WAY TO THE POINT OF BEGINNING.
-4
-357-
EXHIBIT "B"
DEPICTION OF PROPERTY
Ptn. Sub. No. 4, Yucaipa Valley W.B. H/19-20 Ciiy of Yucaipa Oslo— 06 Pin. Cook's Sub, of Dunlap Ranch, M.B. 20/54 iiaoi,22051 0 91 I[1aU
nnl/u xr
Assessor's Map
Ph. S.V,2, Son. 3 t 4 Baak osia Pape 06
Akwrr 2005 T.2S., R m. San Bernordfno County
-5
-358-
EXCLUSIVE NEGOTIATION AGREEMENT
(Eagle Yucaipa 55 LLC; Residential Housing Project)
THIS EXCLUSIVE NEGOTIATION AGREEMENT (this "Agreement") is dated as of , 2022 ("Effective Date"), and is entered into by and between the CITY OF YUCAIPA, a municipal corporation ("City") and EAGLE YUCAIPA 55 LLC, a California limited liability company ("Developer"), to provide a specified period of time for the City and Developer to attempt to negotiate a Disposition and Development Agreement ("DDA"). The Developer and City are sometimes referred to in this Agreement, individually, as a "Party" and, collectively, as the "Parties."
RECITALS
A. Developer is in the business of developing and managing safe, decent and affordable rental and ownership housing in California; and B. The City owns certain real property within the City of Yucaipa ("City") described in Exhibit "A" attached to this Agreement (the "Site"); and C. The City desires to provide for the development of the Site with approximately 150-200 units of affordable rental housing, which project shall meet the affordable housing criteria of Government Code Section 37364 ("Project"); and D. The City has not yet adopted a resolution to the effect that the Site is exempt surplus property under the California surplus property statutes, but intends to do so on the grounds that the Project meets the affordable housing criteria of California Government Code Section 37364.
E. The City and Developer desire to negotiate with each other regarding the potential terms and conditions of the DDA between the City and Developer for Developer to acquire the Site from the City and develop the Project on the Site.
NOW, THEREFORE, in view of the goals and objectives of the City and the City relating to providing affordable housing and in consideration of the mutual promises of the City and Developer set forth in this Agreement, The City and Developer agree as follows:
1. Negotiation of DDA. During the Negotiation Period (defined in Section 3) and subject to the terms and conditions of this Agreement, both the City staff and Developer shall proceed in good faith regarding negotiation and documentation of the potential terms, conditions, covenants, restrictions and agreements of a DDA. The City staff and Developer shall generally cooperate with each other and supply such documents and information as may be reasonably requested by the other to facilitate the conduct of the negotiations. Both City staff and Developer shall exercise good faith efforts to complete discussions relating to the terms, conditions, covenants, restrictions or agreements of a DDA, all as may be mutually acceptable to both the City staff and Developer, in their respective sole and absolute discretion. The exact terms and conditions of a DDA, if any, shall be determined during the course of these negotiations. Nothing in this Agreement shall be interpreted or construed to be a representation or agreement by either the City or Developer that a mutually acceptable DDA will be produced from negotiations under this - 1�59-
12769-000 1 \2405995v2.doc
Agreement. Nothing in this Agreement shall impose any obligation on any Party to agree to a definitive DDA in the future. Nothing in this Agreement shall be interpreted or construed to be a guaranty, warranty or representation that any proposed DDA that may be negotiated by the City staff and Developer will be approved by the City Council. Developer acknowledges and agrees that the City's consideration of any DDA is subject to the retained and reserved sole and absolute discretion of the City Council and no implied covenant of good faith or fair dealing shall apply to such discretion and any and all legally required public hearings, public meetings, notices, factual findings and other determinations and procedures required by law. Nothing in this Agreement shall prevent or prohibit the Parties from discussing or disclosing the fact that they are a Party to this Agreement. Nothing in this Agreement shall limit, prevent, restrict or inhibit the City from providing any information in the City's possession that is required by law (as determined by the City Attorney) to be disclosed, upon request or otherwise.
2. Developer Acknowledgments: CEQA. Developer acknowledges and agrees that: (a) under this Agreement, the City is not committing itself or agreeing to enter into a DDA or approve any land use entitlements or undertake any other acts or activities; (b) no provision of this Agreement shall be deemed to be an offer by the City, nor an acceptance by the City of any offer or proposal from Developer, or for the City to provide any financial or other assistance to Developer for development of the Project or the Site; (c) Developer has not acquired, nor will acquire, by virtue of the terms of this Agreement, any legal or equitable interest in real or personal property from the City; (d) further efforts by any Parry to perform due diligence, arrange or obtain financing, or carry out other acts in contemplation of the possible development of the Site or the Project shall not be deemed evidence of intent by such Party to be bound by any terms, conditions, covenants, restrictions or agreements relating to development of the Site or the Project; (e) nothing in this Agreement is intended to be an express or implied commitment by the City to provide financing for the Project; and (f) nothing in this Agreement shall prevent or limit City from pursuing and negotiating housing projects on other property owned by the City, or providing support for other housing projects of other developers within the City.
The City and Developer acknowledge that all applicable requirements of the California Environmental Quality Act ("CEQA") must be met in order to execute and deliver the DDA and develop the Site and that this may require an environmental impact report, supplemental environmental impact report and/or other reports or analyses for CEQA purposes (collectively, the "CEQA Documents").
3. Negotiation Period.
3.1 Duration. The "Negotiation Period" shall begin on the Effective Date and shall expire at 5:00 p.m. Pacific Time on the date that is one (1) calendar year after the Effective Date, unless extended pursuant to Section 4 or earlier terminated pursuant to Section 3.2.
3.2 Termination. This Agreement and the Negotiation Period shall terminate upon the earliest to occur of the following events: (a) the expiration of the Negotiation Period; (b) termination by the City Manager in accordance with Section 11.3; (c) termination by Developer in accordance with Section 11.4; or (d) entry into a DDA by Developer and City.
4. Extension of Negotiation Period. The Negotiation Period may be extended by the City Manager for up to 6 months, provided the mutual written agreement of the Parties, following -2160-
receipt of a written extension request and a written report from Developer stating in specific terms the efforts of Developer to date regarding the Project and the DDA and the anticipated steps to be undertaken during the requested extension period regarding the Project and the DDA.
Any agreement by the City to any requested extension pursuant to this Section 4 shall be in the sole and absolute discretion of the City Manager of the City, and the City Manager shall have the authority but not the obligation to execute any such extension.
5. DDA Provisions.
5.1 DDA Essential Terms and Conditions. The DDA shall include provisions addressing all of the following among other things:
5.1.1 Site Control. Transfer of Site from City to Developer. At the time of the Site transfer it must have been predeveloped with sewer and water brought to the Site and necessary drainage improvements allowing the Chicken Springs Wash to safely accomplish 100- year design flows. All seismic, cultural, drainage, watershed, CEQA or other environmental issues must have been addressed, remediated, or satisfied. Other than setback requirements for certain facility improvements, no other "gap" funding will be required from the City other than the deferral of development impact fees through the distribution of Residual Receipts, the Residual Receipt Loan will include the purchase price of the property for the value based on recent appraisal. However, additional housing related funds may be provided by the County over and above what is required to complete the referenced improvements to the property and if so, may be made available to the development. In addition, the City -owned property shall be appraised with sewer and water to the Site and the pad grading completed and the appraised value paid to the City over time through Residual Receipts. It is understood that no improvements may be completed unless and until the CEQA approval process has been completed and required mitigation measures are established/met.
5.1.2 DDA Performance Schedule. A schedule of performance setting forth deadlines for various actions of Developer and the City, respectively. As described in Exhibit "B" attached to this Agreement.
5.1.3 Development Commitment. Developer's commitment to develop the Project on the Site, subject to recorded affordability conditions, covenants and restrictions in form and substance acceptable to the City.
5.1.4 Financing Plan. Developer submittal to the City of a plan for financing the construction and operation of the Project for the City review and approval, and closing of necessary financing and evidence of committed equity funds, all as conditions to closing.
5.1.5 Developer Compliance with Laws. Developer shall comply with the requirements of all applicable City ordinances, resolutions, regulations or other laws or approvals in all aspects (planning, design, construction, management, and occupancy) of developing and operating the Project on the Site.
6. Developer Loan; Costs and Expenses. Upon the execution hereof, the Developer shall loan (and deliver to City) the sum of ONE HUNDRED THOUSAND AND NO/100 DOLLARS ($100,000.00) ("Developer Loan"), which if the DDA is signed, shall be repaid by City in
accordance with the terms of the DDA, but if the DDA is not signed, shall be repaid by City upon the expiration or earlier termination of this Agreement. No interest shall be payable on the Developer Loan, and the loan funds received by City shall be used to pay consultants approved by Developer but engaged by City under agreements that permit the assignment of the work product thereunder to Developer upon the execution of the DDA for Drainage Study, Cultural Study, Surveyor, Soils Engineer, Architect, Civil Engineer, Grading Consultant, Arial Survey, and Contingency for the Site as mutually agreed (a draft budget is attached as Exhibit "D".
After the exhaustion of the Developer Loan, the City commits to fund an additional sum of One Hundred Thousand Dollars and NO/100 Dollars ("City Funds"). The City Funds shall be used to fund additional expenses as mutually agreed for project pre -development expenses (See Exhibit "D"). Developer shall pay for all fees or expenses of engineers, architects, financial consultants, legal, planning or other consultants or contractors, retained by Developer for any study, analysis, evaluation, report, schedule, estimate, environmental review, planning or design activities, drawings, specifications or other activity or matter relating to the Site or the Project upon the fully executed DDA pursuant to or in reliance upon this Agreement or in Developer's discretion, regarding any matter relating to this Agreement, a future DDA, the Site or the Project, shall be the sole responsibility of and undertaken at the sole cost and expense of Developer and no such activity or matter shall be deemed to be undertaken for the benefit of, at the expense of or in reliance upon the City. The City shall not be obligated to pay, reimburse or refund any expenses, fees, charges or costs incurred by Developer in pursuit of any study, analysis, evaluation, report, schedule, estimate, environmental review, planning or design activities, drawings, specifications or other activity or matter relating to this Agreement, the Site, the Project or negotiation or documentation of a future DDA that may be undertaken by Developer during the Negotiation Period, whether or not this Agreement is, eventually, terminated or extended or a DDA is entered into between the City and Developer, in the future.
7. No CityApproval. Nothing in this Agreement, nor any comments provided by City staff, nor any failure of City staff to provide comments to any submittal under or pursuant to this Agreement shall: (1) modify or replace any land use entitlement process of the City applicable to the Project; (2) limit the police power or land use jurisdiction of the City relative to the Project; (3) constitute an approval of all or any portion of the Project by the City pursuant to the police power or land use jurisdiction of the City; or (4) constitute any approval of all or any portion of a future DDA with Developer by the City.
8. City Due Diligence. The City reserves the right to reasonably obtain further information, data and commitments to ascertain the ability and capacity of Developer to develop or operate the Site or the Project. Developer acknowledges that Developer may be requested to make certain financial disclosures to the City, the City staff, legal counsel or other consultants, as part of the financial due diligence investigations of the City relating to the development of the Project on the Site by Developer and that any such disclosures may become public records. The City shall maintain the confidentiality of financial information of Developer but only to the extent allowed by law, as determined by the City's legal counsel.
9. Restrictions against Change in Ownership, Management or Control of Developer; Assignment of Agreement.
9.1 Developer Assignment. The City and Developer acknowledge and agree that the City is entering into this Agreement with Developer on the basis of the particular experience, -4362-
financial capacity, skills and capabilities of Developer. This Agreement is personal to Developer and is not assignable by Developer without the prior written consent of the City, which may be given, withheld or conditioned in the City's sole and absolute discretion, except as specifically provided in Section 9.3.
9.2 Notice of Changes. Developer shall promptly notify the City in writing of any and all changes whatsoever in the identity of the business entities or individuals either comprising or in Control (defined in Section 9.4) of Developer, as well as any and all changes in the interest or the degree of Control of Developer by any such person, of which information Developer or any of Developer's shareholders, partners, members, directors, managers or officers are notified or may otherwise have knowledge or information. Upon the occurrence of any significant or material change more than 25%, in one or a series of transactions, whether voluntary or involuntary, in ownership, management or Control of Developer other than such changes occasioned by the death or incapacity of any individual that has not been approved by the City, prior to the time of such change, the City may terminate this Agreement, without liability to Developer or any other person, by sending written notice of termination to Developer, referencing this Section 9.2.
9.3 Assignment to Project Entity. Notwithstanding the foregoing, Developer may assign this Agreement, without the City's consent, to a limited partnership or limited liability company in which Developer or Developer's Affiliate (defined in Section 9.4) act as a general partner or managing member, respectively, subject to all of the following conditions: (a) the sole purpose of such limited partnership or limited liability company is development, ownership and operation of the Project on the Site; (b) such limited partnership or limited liability company expressly assumes all of the obligations of Developer under this Agreement in a written assumption agreement reasonably satisfactory to the City; and (c) Developer or Developer's Affiliate, at all times, exercises Control over such limited partnership or limited liability company. Notwithstanding any assignment of this Agreement, Developer, shall, at all times, be responsible and obligated directly to the City for performance of Developer's obligations under this Agreement.
9.4 Definitions. For the purposes of this Agreement, the term "Affiliate" means any person, directly or indirectly, controlling or controlled by or under common control with Developer, whether by direct or indirect ownership of equity interests, by contract, or otherwise.
For the purposes of this agreement, "Control" means possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether by ownership of equity interests, by contract, or otherwise.
10. City Assignment. The City may assign any or all of the City's rights or obligations under this Agreement to a public entity at any time, in the City's sole and absolute discretion.
Otherwise, the City shall not assign any or all of the City's rights or obligations under this Agreement, without the prior written consent of Developer, which may be given, withheld or conditioned in Developer's sole and absolute discretion.
11. Developer Events of Default and City Remedies.
11.1 Developer Events of Default. The occurrence of any of the following shall constitute a "Developer Event of Default" under this Agreement:
-5363-
11.1.1 Misrepresentation. Any material breach of any representation or warranty made by Developer in this Agreement.
11.1.2 Unauthorized Assignment. Any assignment or attempted assignment by Developer in violation of Section 9.
11.1.3 Other Material Breach. The occurrence of any other event that with the passage of time, the giving of notice, both or neither would constitute a breach of this Agreement by Developer, if such breach is not cured within thirty (30) days after written notice from the City to Developer of such breach.
11.1.4 Performance Schedule. Failure of Developer to meet a performance milestone of Developer by the applicable date contained in the Performance Schedule attached hereto as Exhibit "B", if such failure is not cured within thirty (30) days after written notice from the City to Developer of such failure.
11.2 City Events of Default. The occurrence of any event that with the passage of time, the giving of notice, both or neither would constitute a breach of this Agreement by the City, if such breach is not cured within thirty (30) days after written notice from Developer to the City of such breach, shall constitute a "City Event of Default."
11.3 City Remedies. If a Developer Event of ' Default occurs, the City's sole and exclusive remedy, exercisable in the City's sole and absolute discretion, is to terminate this Agreement by delivering written notice of termination to Developer. Upon any such termination, neither Party shall have any further rights or obligations to the other under this Agreement, except obligations that expressly survive termination of this Agreement.
11.4 Developer Remedies. If a City Event of Default occurs, Developer's sole and exclusive remedy, exercisable in Developer's sole and absolute discretion, is to terminate this Agreement by delivering written notice of termination to the City. Upon any such termination, neither Party shall have any further rights or obligations to the other under this Agreement, except obligations that expressly survive termination of this Agreement.
12. LIMITATIONS ON REMEDIES AND DAMAGES.
12.1 EXCLUSIVE REMEDY. CITY AND DEVELOPER EACH ACKNOWLEDGE
AND AGREE THAT THEY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT, IF
THEY WERE TO BE LIABLE TO EACH OTHER FOR ANY MONETARY DAMAGES,
MONETARY RECOVERY OR ANY REMEDY IN THE EVENT OF A BREACH OR
DEFAULT UNDER THIS AGREEMENT, OTHER THAN TERMINATION OF THIS AGREEMENT. ACCORDINGLY, THE CITY AND DEVELOPER AGREE THAT THEIR
RESPECTIVE SOLE AND EXCLUSIVE RIGHT AND REMEDY DURING OR
FOLLOWING A BREACH OR DEFAULT UNDER THIS AGREEMENT BY THE OTHER PARTY IS TO TERMINATE THIS AGREEMENT. UNDER NO CIRCUMSTANCES SHALL
EITHER PARTY BE LIABLE TO THE OTHER PARTY, AS A RESULT OF A BREACH OR
DEFAULT UNDER THIS AGREEMENT FOR ANY AMOUNT OF MONEY OR ANY
SPECULATIVE, CONSEQUENTIAL, COLLATERAL, SPECIAL, PUNITIVE OR INDIRECT
DAMAGES OR FOR ANY LOSS OF PROFITS SUFFERED OR CLAIMED TO HAVE BEEN SUFFERED. THE CITY AND DEVELOPER EACH WAIVE ANY RIGHT TO PURSUE -6364-
ANY REMEDY, OTHER THAN TERMINATION OF THIS AGREEMENT, AS A RESULT OF ANY BREACH OR DEFAULT UNDER THIS AGREEMENT BY THE OTHER PARTY.
UNDER NO CIRCUMSTANCE SHALL EITHER PARTY BE ENTITLED TO RECEIVE
DAMAGES ARISING FROM AN ACTUAL OR ALLEGED BREACH OR DEFAULT UNDER THIS AGREEMENT BY THE OTHER PARTY.
12.2 1542 ACKNOWLEDGMENT. THE CITY AND DEVELOPER EACH
ACKNOWLEDGES THAT IT IS AWARE OF THE MEANING AND LEGAL EFFECT OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR OR
RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER
FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR
HER WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
12.3 1542 WAIVER. CALIFORNIA CIVIL CODE SECTION 1542
NOTWITHSTANDING, IT IS THE INTENTION OF BOTH THE CITY AND DEVELOPER
TO BE BOUND BY THE LIMITATION ON DAMAGES AND REMEDIES SET FORTH IN THIS SECTION 12. THE CITY AND DEVELOPER EACH WAIVES AND RELEASES ANY
AND ALL CLAIMS AGAINST THE OTHER PARTY FOR MONETARY DAMAGES,
MONETARY RECOVERY OR OTHER LEGAL OR EQUITABLE RELIEF RELATED TO
ANY DEFAULT OR BREACH OF THIS AGREEMENT BY THE OTHER PARTY,
WHETHER OR NOT ANY SUCH RELEASED CLAIMS WERE KNOWN OR UNKNOWN
TO THE WAIVING AND RELEASING PARTY AS OF THE EFFECTIVE DATE OF THIS AGREEMENT. City AND DEVELOPER EACH SPECIFICALLY WAIVES THE BENEFITS OF CALIFORNIA CIVIL CODE SECTION 1542 AND ALL OTHER STATUTES AND
JUDICIAL DECISIONS (WHETHER STATE OR FEDERAL) OF SIMILAR EFFECT WITH
REGARD TO THE LIMITATIONS ON DAMAGES OR REMEDIES AND WAIVERS AND
RELEASES OF ANY SUCH DAMAGES OR REMEDIES CONTAINED IN THIS SECTION
12. INITIALS OF AUTHORIZED INITIALS OF AUTHORIZED
CITY REPRESENTATIVE DEVELOPER REPRESENTATIVE
13. Developer Representations and Warranties. Developer represents, warrants and covenants to and for the benefit of City and City, as of the Effective Date and at all times during the Negotiation Period, as follows:
13.1 Valid Existence; Good Standing; Joint Venture Relationships. Developer is a limited liability company duly organized and validly existing under the laws of the State of California and is authorized by and in good standing with the Secretary of State of the State of California. Developer has all requisite power and authority to own its property and conduct its business as presently conducted.
-7-365-
13.2 Authority. Developer has all requisite power and authority to enter into and perform this Agreement.
13.3 No Limitation on Ability to Perform. Neither Developer's articles of incorporation nor any other organizational document regarding Developer in any way prohibits, limits or otherwise affects the right or power of Developer to enter into or perform this Agreement. Developer is not a party to or bound by any contract, agreement, indenture, trust agreement, note, obligation or other instrument that could prohibit, limit or otherwise affect Developer's entry into or performance of this Agreement. To the best of Developer's knowledge, no consent, authorization or approval of, or other action by, and no notice to or filing with, any governmental authority, regulatory body or any other person or entity is required for the due execution, delivery or performance by Developer of this Agreement or any of the terms or covenants contained in this Agreement. There is no pending or threatened suit or proceeding or undischarged judgment affecting Developer before any court, governmental agency, or arbitrator that might materially adversely affect the enforceability of this Agreement, the ability of Developer to perform Developer's obligations under this Agreement or the business, operations, assets or condition of Developer.
13.4 Valid Execution. The execution and delivery of this Agreement by Developer have been duly and validly authorized by all necessary action of Developer and others. This Agreement will be a legal, valid and binding obligation of Developer, enforceable against Developer in accordance with its terms. Developer has provided to the City a written action of all of Developer's members authorizing Developer's entry into and performance of this Agreement.
13.5 Meeting Financial Obligations; Material Adverse Change. Developer is meeting Developer's current liabilities as they mature, no federal or state tax liens have been filed against Developer and Developer is not in default or claimed default under any agreement for borrowed money. Developer shall immediately notify the City of any material adverse change in the financial condition of Developer.
13.6 Conflicts of Interest. Developer is familiar with Section 87100, et seq., of the California Government Code, which provides that no member, official or employee of the City, may have any personal interest, direct or indirect, in this Agreement nor shall any such member, official or employee participate in any decision relating to this Agreement which affects his or her personal interest or the interests of any corporation, partnership or association in which he or she is interested directly or indirectly. Developer does not know of any facts that constitute a violation of such provisions.
13.7 Skill and Capacity. Developer has the skill, resources and financial capacity to own, manage and fully develop the Site with the Project.
13.8 Not Prohibited from Doing Business. Developer has not been debarred or otherwise prohibited from doing business with any local, state or federal governmental agency.
14. Notices, Demands and Communications between the Parties.
14.1 Delivery. Any and all Notices submitted by either Party to the other Party pursuant to or as required by this Agreement shall be proper, if in writing and sent by messenger for nationally recognized overnight (one Business Day) delivery service (i.e., United Parcel -8366-
Service, Federal Express, etc.) or by certified United States mail, postage prepaid, return receipt requested, to the address of the recipient Party, as designated in Section 14.2 Notices may be sent in the same manner to such other addresses as either Parry may from time to time designate by Notice in accordance with this Section 14. Notice shall be deemed received by the addressee, regardless of whether or when any return receipt is received by the sender or the date set forth on such return receipt, on the day that the Notice is sent by messenger for immediate personal delivery, one Business Day after delivery to a nationally recognized overnight delivery service or three (3) calendar days after the Notice is placed in the United States mail in accordance with this Section 14. Any attorney representing a Party may give any Notice on behalf of such Party.
14.2 Addresses. The Notice addresses for the Parties, as of the Effective Date, are as follows:
To Developer: Eagle Yucaipa 55 LLC
1500 Quail Street, Suite 120
Newport Beach, CA 92660
Attention: Randy Friend
To City: City of Yucaipa
34272 Yucaipa Blvd
Yucaipa, CA 92345
Attention: City Manager
15. General Provisions.
15.1 Amendments. Other than the extension allowed for in Section 4, all substantive amendments or modifications to this Agreement must be approved and executed in writing by the Developer and the City Council.
15.2 Severability. If any provision of this Agreement, or its application to any person or circumstance, is held invalid by any court, the invalidity or inapplicability of such provision shall not affect any other provision of this Agreement or the application of such provision to any other person or circumstance, and the remaining portions of this Agreement shall continue in full force and effect, unless enforcement of this Agreement as so modified by and in response to such invalidation would be unreasonable or grossly inequitable under all of the circumstances or would frustrate the fundamental purposes of this Agreement. Without limiting the foregoing, in the event that any applicable federal or state law prevents or precludes compliance with any material term of this Agreement, the Parties shall promptly modify, amend or suspend this Agreement, or any portion of this Agreement, to the extent necessary to comply with such provisions in a manner which preserves to the greatest extent possible the benefits to each of the Parties to this Agreement. However, if such amendment, modification or suspension would deprive the City or Developer of the substantial benefits derived from this Agreement or make performance unreasonably difficult or expensive, then the affected Party may terminate this Agreement upon written notice to the other Party; provided, however, that the Parties shall meet and confer prior to such termination to determine if the Agreement can be modified to preserve the benefits to each of the Parties. In the event of such termination, neither Party shall have any further rights or obligations under this Agreement, except as otherwise specifically provided in this Agreement.
-9367-
15.3 No Implied or Continuing Waiver. No waiver made by either Party with respect to the performance, or manner or time of performance, or any obligation of the other Party or any condition to its own obligation under this Agreement will be considered a waiver with respect to the particular obligation of the other Party or condition to its own obligation beyond those expressly waived, to the extent of such waiver, or a waiver in any respect in regard to any other rights of the Party making the waiver or any other obligations of the other Parry. All waivers regarding this Agreement must be in writing and signed by the Party making the waiver.
15.4 Successors and Assigns; No Third Party Beneficiaries. This Agreement shall inure to the benefit of and bind the respective successors and assigns of the City and Developer, subject to the limitations on assignment by Developer set forth in Section 9. This Agreement is for the exclusive benefit of the Parties to this Agreement and not for the benefit of any other person and shall not be deemed to have conferred any rights, express or implied, upon any other person.
15.5 Governing Law. Developer and City acknowledge and agree that this Agreement was negotiated, entered into and is to be fully performed in the City of Yucaipa, California. City and Developer agree that this Agreement shall be governed by, interpreted under, and construed and enforced in accordance with the substantive and procedural laws of the State of California, without application of conflicts or choice of laws statutes or principles.
15.6 Compliance with Law. Developer acknowledges that any future DDA, if approved by the City Council, will require Developer (among other things) to carry out the development of the Project on the Site in conformity with all applicable laws, including all applicable building, planning and zoning laws, environmental laws, safety laws and federal and state labor and wage laws.
15.7 Interpretation of Agreement. No inference in favor of or against any Party shall be drawn from the fact that such Party has drafted any part of this Agreement. The Parties have both participated substantially in the negotiation, drafting, and revision of this Agreement, with advice from legal and other counsel and advisers of their own selection. A word, term or phrase defined in the singular in this Agreement may be used in the plural, and vice versa, all in accordance with ordinary principles of English grammar, which shall govern all language in this Agreement. The words "include" and "including" in this Agreement shall be construed to be followed by the words: "without limitation." Each collective noun in this Agreement shall be interpreted as if followed by the words "or any part of it", except where the context clearly requires otherwise. Every reference to any document, including this Agreement, refers to such document, as modified from time to time excepting any modification that violates this Agreement, and includes all exhibits, schedules, addenda and riders to such document. The word "or" in this Agreement includes the word "and." Every reference to a law, statute, regulation, order, form or similar governmental requirement refers to each such requirement as amended, modified, renumbered, superseded or succeeded, from time to time. Headings at the beginning of each section or sub -section of this Agreement are solely for convenience and are not a part of this Agreement. Whenever required by the context of this Agreement, the singular shall include the plural and the masculine shall include the feminine and vice versa. Unless otherwise indicated, all references to sections are to this Agreement. All exhibits referred to in this Agreement are attached to and incorporated into this Agreement, unless otherwise specified. -1*8-
15.8 Entire Agreement. This Agreement including the attachments and exhibits) contains all of the representations of and the entire agreement between the Parties with respect to the subject matter of this Agreement. Any prior correspondence, memoranda, agreements, warranties or representations relating to such subject matter are superseded in total by this Agreement. No prior drafts of this Agreement or changes from those drafts to the signed version of this Agreement shall be introduced as evidence in any litigation or other dispute resolution proceeding by either Party or any other person and no court or other body shall consider those drafts in interpreting this Agreement.
15.9 Time for Performance.
15.9.1 Expiration. All performance, expiration or termination dates (including cure dates) in this Agreement (including the attached Performance Schedule) expire at 5:00 p.m., Pacific Time, on the specified date.
15.9.2 Weekends and Holidays. A date that falls on a Saturday, Sunday or the City holiday is deemed extended to the next day on which the City is open for performance of general City functions with regular City personnel.
15.9.3 Days for Performance. All periods for performance specified in this Agreement in terms of days shall be calendar days, and not business days, unless otherwise expressly provided in this Agreement.
15.9.4 Time of the Essence. Time is of the essence with respect to each provision of this Agreement.
15.10 Counterparts. This Agreement may be signed in multiple counterpart originals, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument.
15.11 Approvals and Consents. Unless this Agreement otherwise expressly provides or unless applicable law requires otherwise, all approvals, consents or determinations to be made by or on behalf of (excluding amendments to this Agreement): (a) the City under this Agreement shall be made by the City Manager, who may require City Council approval of any such matter; and (b) Developer under this Agreement shall be made by Randy Friend ("Developer Representative"), or such other manager, member, employee or agent of Developer as Developer may designate by written notice to the City to act as Developer Representative for a particular matter. Unless otherwise provided in this Agreement, whenever approval, consent or satisfaction is required of a Party pursuant to this Agreement, such approval, consent or satisfaction shall not be unreasonably withheld, conditioned or delayed and any reasons for disapproval shall be stated in reasonable detail in writing. Approval by Developer or City of any act or request by the other shall not be deemed to waive or render unnecessary approval of any similar or subsequent acts or requests. Further, nothing in this section shall be construed to apply to the City's approval of any term of the DDA or approval of the DDA itself, or to City approval of cost to which the City's $100,000 is to be applied pursuant to Section 6, or to City approval of any proposed extension of the Agreement/Negotiation period.
15.12 Survival of Agreement. All of the provisions of this Agreement shall be applicable to any dispute between the Parties arising from this Agreement, whether prior to or -11-3-69-
following expiration or termination of this Agreement, until any such dispute is finally and completely resolved between the Parties, either by written settlement, entry of a non -appealable judgment or expiration of all applicable statutory limitations periods and all terms and conditions of this Agreement relating to dispute resolution, indemnity or limitations on damages or remedies shall survive any expiration or termination of this Agreement.
15.13 Non -Discrimination. Developer covenants by and for itself and its successors or assigns, and all persons claiming under or through it, and this Agreement is made and accepted upon and subject to the following conditions:
15.13.1 Standards. That there shall be no discrimination against or segregation of any person or group of persons, on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the Site nor shall Developer, itself, himself or herself, or any person claiming under or through it, him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, subtenants, sublessees, or vendees in the Site.
15.13.2 Interpretation. Notwithstanding Section 16.14.1, with respect to familial status, Section 16.14.1 shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the Government Code. With respect to familial status, nothing in Section 16.14.1 shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the Civil code, relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the Civil code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall apply to Section 16.14.1.
15.14 Relationship of the Parties. The subject of this Agreement is a private development with neither Party acting as the agent of the other Party in any respect. None of the provisions in this Agreement shall be deemed to render City a partner in Developer's business, or joint venture or member in any joint enterprise with Developer.
15.15 Developer Inspections During ENA Period. Provided Developer delivers to City one or more insurance certificates showing that Developer maintains reasonable liability insurance for itself and its consultants performing inspections of the Property, which names City as additional insured, Developer and its consultants designated in writing by Developer to City may enter the Property during the term of this ENA to conduct surveys of the Property, conduct soils/geo tests of the Property, conduct environmental (hazmat) Phase I and Phase II inspections, and otherwise inspect the physical condition of the Property; however, Developer shall promptly restore any damage to the Property at Developer's cost and Developer shall indemnify, defend, and hold City harmless from and against any and all claims, liabilities, damages, costs and expenses incurred or suffered by City that arise out of, are caused by or otherwise relate to such inspections but the foregoing shall not make Developer liable for the presence of hazardous materials, except to the extent introduced or released by Developer or its consultants, and the foregoing obligations of Developer shall survive the expiration or earlier termination of this Agreement and shall not be released by any release or waiver contained in this Agreement Developer shall promptly deliver copies of all inspections reports to City. Developer shall give -12370-
City prior written notice of the dates and times of inspections. Developer shall promptly deliver copies of all inspection reports to City. Developer shall give City prior written notice of the dates and times of inspections.
16. Initial Marketing Campaign to Yucaipa Residents. Developer agrees that prior to marketing the Project to the general public, Developer shall, subject to applicable local, state and federal fair housing laws, conduct an initial marketing campaign of two (2) weeks duration, directed at (1) residents of the City of Yucaipa, (2) individuals who work in the City of Yucaipa, (3) households in which one adult member has a disability that prevents them from working, and (4) essential workers who live in San Bernardino County, during which such individuals/applicants shall be given preference in the rental of Units, as further described in Exhibit "C" attached hereto." This requirement shall be memorialized in the DDA.
IN WITNESS WHEREOF, City and Developer have signed and entered into this Agreement as of the Effective Date.
"DEVELOPER":
EAGLE YUCAIPA 55 LLC,
a Delaware limited liability company
By: Eagle Real Estate Investment Group LLC,
a Delaware limited liability company,
Its Manager
By: Eagle Real Estate Investment Manager LLC,
A Delaware limited liability company,
Its Manager
"CITY":
CITY OF YUCAIPA
By:
Print Name:
Title:
Attest:
By:
Randall J. Friend, Manager
City Clerk
Approved as to Form:
David Snow, City Attorney
-13ni-
EXHIBIT "A"
Site Legal Description
Real property in the City of Yucaipa, County of San Bernardino, State of California, described as follows:
All that portion of Lot 3 of Cooks Subdivision of a Part of Dunlap Ranch in Yucaipa Valley, in the County of San Bernardino, State of California, as per Map recorded in Book 20, Page 54 of Maps, records of said County, described as follows:
Commencing at the intersection of the East line of said Lot 3 of Cooks Subdivision and the South line of the parcel described in Deed to San Bernardino County, recorded in Book 6158, Page 145, Official Records of said County;
Thence South 12000'00" West along said East line of Lot 3 16.98 feet to the True Point of Beginning;
Thence continuing South 12000'00" West along said East line of Lot 3155.57 feet; Thence leaving said East line South 52000'00" West 107.06 ft to the beginning of a curve concave to the Northwest having a radius of 1045.00 feet; Thence Southwesterly 711.31 feet along said curve through a central angle of 39000'00"; Thence North 89100'00" West 495.82 feet to the Easterly line of Oak Glen Road as described in Document Number 19980328722 recorded August 14, 1998 records of said County; Thence Northeasterly 148.95 feet along said Easterly line of Oak Glen Road, said line being a curve concave to the Southeast having a radius of 806.00 feet, from an initial radial bearing of North 46032'24" West, through a central angle of 10035'19"; Thence continuing Northeasterly 184.18 feet along said Easterly line of Oak Glen Road, said line being a curve concave to the Southeast having a radius of 806.00 feet, from an initial radial bearing of North 35057'05" West through a central angle of 13105'33"; Thence continuing North 67108'28" East along said East line 220.77 feet to the beginning of a curve concave to the Northwest having a radius of 894.00 feet; Thence continuing along said Easterly line Northeasterly 468.10 feet along said curve through a central angle of 30100'00";
Thence North 37108'28" East 36.92 feet to the beginning of a curve concave to the Southeast having a radius of 35.00 feet;
Thence Northeasterly 45.77 feet more or less along said curve through a central angle of 74155'20" to a point on the Southerly right of way of said Avenue E; Thence Southeasterly 403 feet more or less along said Southerly right of way to the Point of Beginning.
APN: 0318-061-26-0-000
-372-
EXHIBIT "B"
Performance Schedule
Date/Deadline
Item
Responsible Party
2022
Deliver to City: Project
Developer
description; pro -forma
(including preliminary
budget and sources/uses of
funds); preliminary title
report; construction
schedule (including
projected occupancy
date/completion date)
2022
Develop and negotiate a
City/Developer
DDA
2023
Complete DDA by City
City/Developer
Council meeting date agenda
deadline
2023
Target date for Completion
City
of CEQA and Approval of
DDA
-373-
EXHIBIT "C"
Yucaipa Resident Marketing Preference
Pursuant to Section 16 of the Agreement, prior to marketing the Project to the general public, the Owner shall, subject to applicable local, state and federal fair housing laws, conduct an initial marketing campaign of two (2) weeks duration, directed at (1) residents of the City of Yucaipa, (2) individuals who work in the City of Yucaipa, (3) households in which one adult member has a disability that prevents them from working, and (4) Essential Workers* who live in San Bernardino County, during which such individuals/applicants shall be given preference in the rental of Units.
Applying for the Preference
To be eligible for the preference, an applicant must indicate on their completed application that they currently live in the City of Yucaipa, work in the City of Yucaipa, are an individual living with a disability, or are an Essential Worker living in San Bernardino County. Individuals must provide verification of residency, employment, disability, or Essential Worker status. If verification is not provided with the completed application, the applicant will not be eligible for the preference.
Eligibility
Any applicant household with at least one member who currently lives in the City of Yucaipa, works in the City of Yucaipa, meets the definition of disability and is unable to work, or meets the definition of Essential Worker living in San Bernardino County as defined by the Department of Homeland Security, shall be eligible for the preference. Applicants who live or work in the City of Yucaipa at the time of application submittal will remain eligible for the preference, even if they relocate or change employment outside of the city. Applicant households made up of individuals who do not live together at the time of application may be eligible for the preference so long as at least one member lives at an eligible address within the City of Yucaipa at the time of application, works within the City of Yucaipa at the time of application, has a disability that prevents them from working at the time of application, or is an Essential Worker living in San Bernardino County at the time of application. While the household composition may change after the household's application is submitted, the household member(s) who qualified for the preference must be the signee(s) of the lease and occupy the unit; otherwise, the household will lose its preference status.
Documentation
To be considered a qualifying household, one member of the household must provide one (1) of the following supporting documents verifying they live or work within the City of Yucaipa, are an individual living with a disability that prevents them from working, or are employed as an Essential Worker living in San Bernardino County:
Residency in the City of Yucaipa:
A current Utility Bill, including any of the following:
• Telephone bill (land line only)
• Cable or internet bill
-374-
• Gas bill
• Electric bill
• Garbage bill
• Water bill
Public benefits records (e.g., SSI/SSP, MediCal, GA, Unemployment Insurance, CalFresh)
Current school records
Current lease agreement]
Government -issued I.D.
Employment within the City of Yucaipa:
Pay stubs which confirm employment within the City of Yucaipa A letter from an employer confirming employment within the City of Yucaipa Disability:
Verification of disability from a credible third party, which verifies the applicant is disabled and is unable to work (unless the disability is apparent).
Employment as an Essential Worker:
A letter from one's current employer confirming employment as an Essential Worker, as defined by the U.S Department of Homeland Security.
-All documentation must be current and must list the qualified household member's name. All utility bills must be dated within 45 days of the date of the application. -Applicants who are homeless at the time of application may demonstrate eligibility for the preference by providing a letter from a case manager or homeless shelter attesting to the fact that the applicant is homeless and identifying where in the City of Yucaipa the individual is currently staying. Letters must be signed, dated, and on official letterhead from an agency that provides health, mental health, or housing services to the homeless. -In the event that the Owner or City of Yucaipa determines that any applicant has provided falsified documentation of any kind, the application will be disqualified, removed from consideration, and will not be included in the lottery. -Inquiries regarding the eligibility for the preference and the application should be addressed to the Property Manager.
*Definition of Essential Worker as defined by the U.S. Department of Homeland Security:
Document Dated 08/10/2021 "ADVISORY MEMORANDUM ON ESSENTIAL CCRITICAL INFRASTRUCTURE WORKERS' ABLILITY TO WORK DURING THE COVID-19 RESPONSE."
-375-
Exhibit "D"
Pre -Development Budget of Developer Funds and City Funds Phase I (Funds advanced by the Developer):
Drainage Study (highest and best use)
$10,000
Cultural Study (finalize)
$2,500
Surveyor (survey)
$5,000
Soils Engineer (finalize)
$5,000
Architect (product type, footprint/design)
$20,000
Civil Engineer (site plan and consult)
$25,000
Civil Engineer (grading plan)
$10,000
Grading Consultant (grading plan)
$10,000
Aerial Survey
$5,000
Contingency
$7,500
Total:
$100,000
Phase II (funds advanced by the City):
To be allocated in the future
$100,000
-376-
MEMORANDUM OF UNDERSTANDING
REGARDING
COMMITMENT TO QUALITY HOUSING OPPORTUNITIES IN THE CITY OF
YUCAIPA
THIS MEMORANDUM OF UNDERSTANDING (the "MOU") dated May 27, 2020 is made by and between the City of Yucaipa, a California municipal corporation ("City") and Sorenson Engineering, a California corporation (Sorenson), collectively referred to herein as the "Parties".
RECITALS
WHEREAS, the City of Yucaipa is partnering with a developer on the design and construction of a residential family housing project in the community; and WHEREAS, Sorenson Engineering is a key employer in the City of Yucaipa, employing nearly 400 employees specialized to work in the highly sophisticated field of precision engineering; and
WHEREAS despite being based in Yucaipa, Sorenson Engineering employees residing in Yucaipa only comprise of 35% of the company's workforce; and WHEREAS the City and Sorenson Engineering recognize the value that employees living and working in the City of Yucaipa bring to the individual, community, and the company; and WHEREAS the City and Sorensen Engineering are committed to the addition of quality housing opportunities in the City of Yucaipa that would serve the needs of existing and prospective Sorenson employees.
NOW THEREFORE, the Parties agree as follows:
1. City Obligations
(a) Engage Sorensen Engineering in the design of the amenities and other aspects of the project that may appeal and be of benefit to Sorensen employees considering housing options.
(b) Develop and prepare print and electronic material to describe available housing opportunities including this project, price/rent ranges, income restrictions (if any), amenities, etc., including but not limited to, flyers, brochures, and presentations. -377-
(c) Provide marketing material and subsequent updates on this and other housing opportunities for Sorensen Engineering to distribute to current and prospective employees.
2. Sorensen Engineering Obligations
(a) Offer input to the City on aspects of the development that might be of benefit to Sorensen employees including, but not limited to, facility amenities and project design.
(b) Collaborate with the City on ideas for marketing material that would maximize exposure and promotion of this family housing project as well as other housing developments in the community.
(c) Promote this project as well as other housing opportunities to existing and prospective Sorensen employees by distributing marketing material provided by the City at on - boarding events for new hires, employee orientations, and other employee -oriented events and activities.
3. Term
a) This MOU shall commence on the date on which the last party signs the MOU below. b) This MOU can be terminated by any party provided that notice of such tennination shall be provided to the other party at least thirty (30) days prior to the effective date of such termination.
4. Construction
The language in all parts of this MOU shall be in all cases construed simply according to its fair meaning and not strictly for or against any of the Parties.
IN WITNESS WHEREOF, the Parties have caused this MOU to be executed as of the date first written above.
CITY OF YUCAIPA, a California municipal
corporation
By: s
David Avila
Mayor
�-ATTEST:
Jennifer Crawford,�ity Clerk
-378-
SORENSON ENGINEERING, a California
corporation
Name: si�t_04