Ord. No. 419 Date 2-13-23 Item No. __-5-
First reading approved or,_j-23 -20_23
(Date)
Y YUCAIPA
Waive further reading and adopt Ord. No. 419
CITOF
AGENDA REPORT Approved
TO: Honorable Mayor and City Council
FROM: Fermin Preciado, Director of Development Services/City EngineerT-?.
Benjamin J. Matlock, Planning Manager/City Planner
FOR: City Council Meeting of January 23, 2023
SUBJECT- SG OPAL INC (Case No. 21-026/CUP/DA); A Conditional Use Permit and Development Agreement for the phased development of a commercial center that includes a fuel station with a 9,000 spare foot building that includes a convenience store, quick service re and office space, RIO canopy with 16 W dispensers and an e"ss carwash, and a 66-room hotel Nvith a rooftop bar and restaurant-, located at 32788 Oak Glen Rd; APN: 0301-1,74-07.
(Continued from January 9,2023)
RECOMIVIENDATION:
That the City Council continue the public hearing and consider the Planning Commission's recommendation to:
I Approve Conditional Use Permit No" 21-026 subject to the Conditions of Approval as contained in the Agenda Report; and
2. Adopt the Findings as contained in the Agenda Report; and
4. Adopt the Mitigated Negative Declaration and Mitigation Monitoring and Reporting program, finding the mitigation meast= and standard measures and procedures will reduce the potential level of environmental impact to less than significant and, 5, Direct Staff to file a Notice of Determination.
24 'AN" IL710
Area Land Use District Designations; Improvement Levels (IL); and existing land uses:
I
�
[E jAng-Residence
I
Rawl -
Wilson Creek Channel
------ -------
CN (Neighborhood Commercial) and
OS (Open_§pacJe
Public UggLiggE
Planning Commission Hearhia.-
Fail
the access to the site, including street improvements that would be completed, and received a M. Tsai. Minutes are attached for Council's reference.
ON CotincilHearin-g-
I ar im 4,•
•
®rm nnn"'I FLOSSIMMINgIM MIMOO.1,1
COVIID protocols: The cornment letter recommends that the City adopt specific protocols to mitigate impacts associated with COVID-19, The project would notresult in any specific impacts to COVID-19, and the contractors for the Project "Arould be subject to any applicable OSHA/CALOSHA requirements.
Environmental Impact Report: The comment letter indicates that an Environniental impact Report (EIR) shall be prepared for the Project, Pursuant to the California Environmental Quality Actan EIR is required when a project will have one or moro significant and unavoidable impacts, Based on the analysis conducted through the review 25 •7 ff Tl 7 ty, IT I
SG Opal Iric (Case No. 21-026/CUP/DA)
Mal
26 Fuel Station Hazards: The comment letter suggests that there may be hazardous conditions on the site that result ftoni the ftiet station development, Stich uses include existing regulations that will Uniformly applicable to the fuel station use and governed by their respective agencies. No city -specific mitigation measures are warranted, and compliance with those regulations are identified in the environmental analysis and in the Project's conditions of approval.
with the City's Development Code. Further, a comprehensive General Plan consistency analysis is specifically required for EIRs pursuant to Section 15125(d)of the CEQA Guidelines, and would not apply to the MND. A noted previously, no specific violations of the General Plan were identified.
27 City Council Meeting ofJanuary 23, 2023
SG Opal Inc(Case No. 21-02 /CUP/ A)
Page
DISCUSSION:
Location and Sett►ne:
28 City Council Meeting of January 23, 2023
SG Opal Inc (Case. No. 21-026/CUP/DA)
IT
r
14 %
N&
i-:L4 IV
A
USE PERMIT - SIT PIN
grading, the building pad areas will require fill to raise the pad, elevations to better align to the grade of the roadway for better visibility along Oak Glen Road and is anticipated to include approximately 50,000 cubic yards of fill for the total site.
The Conditional Use Permit is expected to be completed in two (2) phases, where each 'use rep ,resents each p"a phase. The Conditions of Approval would reflect that the Project is to be phased, and that they are applicable during all phases.
29 City Council Meeting of January 23, 2023
SO Opal Inc (Case No. 21-026/CUP/DA)
NEU F EXHI:�IT
ATmm 1a.
Architectural Review:
on the archiijolui8i jjan jaciiij, j ltvid ret&r•
ql EmElum &-if ova-s L'44 Mum
30 4
Develoi)ment Agreement:
The project developer has requested the use of a Development Agreement with the City. To stren then th
Regulations expressly provides as follows:
"The Legislature finds and declares that:
31 "(a) The lack of certainty in the approval of development projects can result in a waste of resources, escalate the cost of housing and other development to the consumer, and maximum efficient utilization of resources at the least economic cost to the public. (b) Assurance to the applicant for a development project that upon approval of the project, the applicant may proceed with the project in accordance with existing policies, rules and regulations, and subject to conditions of approval will strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic cost of development.
(c) T1w lack- of public facilities, including, but not limited to, streets, sewerage, tran 4i r! v,--V;Fq. gn
development of new housing. Whenever possible, applicants and local governments may include provisions in agreements whereby applicants are reimbursed over time for financing public facilities."
Section 65865.2 of the California Government Code provides that "A development agreement shall specify the duration of the agreement, the permitted uses of the property, the density or T, 11
i I
..........
I;ii: Rill 10,1111 iill:l,l, I
public facilities and subsequent reimbursement over time." The a -2lica-tt a.-i d
approval as part of the Commission's review of the Project. The timing of the improvements and who is responsible for them are the salient aspects of the agreement and the basis for the lo-tiation. It should hu-
Hotel project currently under construction on Oak Glen Road near Interstate 10.
The key points and responsibilities for the developer and the City included in the proposed Development Agreement are as follows -
Developer Rest)onsibilities:
• Construct a hotel that is the same or better than a typical suburban hotel, which includes specific identified amenities that shall be provided for guests. • Pay a municipal surcharge that escalates to three percent of the Gross Room Revenue in addition to the standard 7% Transit Occupancy Tax. Specifically, the surcharge will be 1% during the first year, 2% the second year, and 3% for each year thereafter. 32
• Pay all applicable fees associated with processing the Project. • Provide an access easement to the adjoining city -owned parcel through the proposed development.
City ResRqngihi!itkL
Ulm #
The proposed project is located within the CS District. Contained below is an evaluation Of the proposed project's consistency with adopted development standards. 33 Building heights will be confirmed
during Architectural Review — hotel
UL•
The proposed building setbacks are
as follows-
• Front yard- 15 feet to carwash.
• Side Yard: 70 feet,
4 Rear yar& 17 feet,
• Building Coverage: 17.7 percent,
• Lot Coverage-, 70 percent.
• Site Landsc4piV 30 percent.
156 total parking spaces provided,
with 116 required-
* 8 handicapped, parking spaces
* 2 loading spaces
* 5 vacuum spaces
[WHIIIInt
lesfFBD The CS District permits a
buildiI�igng height of 45 faet The
Development Code permits the
building height to be exceeded by 50
percent for "Ornamental towers and
Yes. T11
he Development Code requires-
• 15-foot Front Yard (Oak Glen
Road)
• 15-foot Street Side YW
Street and I- 10 Freeway)
• I 0-foot Rear Yard
4 #
This standard provides for the balance
of the lot coverage (10 percent) to be
landscaped. The proposed Project
je_s. The Development Code requires
the following:
• Hotel/motel (Yes): One (1) parking
spacefor each room
• Restaurant (Yes): One (1) parking
space is required for every 50
square feet of seating area, or one
(1) parking space per 100 square
feet of total floor area (where
seating area has not been defined).
• Office and Retail (Yes)One (1)
space per 250 square feet,
• Carwash (Yes)- One (1) space for
each proposed vacuum stall.
34 City Council Meeting of January 23, 2023
SG Opal Inc (Case No. 21-026/CUP/DA)
The project meets or exceeds the City's General Plan and Development Code standards for the above referenced items as well as for access and site design.
In addition, the proposed Project supports a number of General Plan policies. These include the following:
Processina- and Procedural Actions:
INN -- ;1111 i 1111 !,;1! 1111:1 1111 111 I'�,!�ilill�ll�ll����ll�illi�l�l�I Mitchell M. Tsai, representing the Southwest Regional Council of Carpenters, requested to b notified of any public hearings associated with the Project. Additionally, a comment letter w provided by the San Bernardino County Department of Public Works recommending that i Azt amm-ww'#z0&iW'�
Creek) will require a permit from their agency.
EnviLonmental Re1jow:
The Initial Study prepared for this proposal, which was made available for comment for 30 da beginning on November 8, 2021, and ending on November 29, 2021, considers the potenti 35 CouncilCity
impactsSG Opal Inc (Case No. 21-07-6/CUP/DA)
environmental occur as a result of the Project. It shouldbe noted projectenvironmental review assessed a
with a combined capacity for 24 fuel dispensers and a 90-foot-long express carwash that six +
+
the ultimate
project is located on an infill, site that is less than 5) acres, and the proposed development
developmentconsistent with the City's +'noted
projectDufing the period,i oil the environment"
However,+ # - I
concernsletter with
# # i
' M •
i
36 City Council Meeting of January 23, 2023
SG Opal hoc (Case No. 21-026/CUP/DA)
which includes a signal intersection at Oak Glen Road and Colorado and the access for the site, which is listed in the City's DIF/ClP Programs.
GHG Impacts: The comment letter suggests that because a traffic study was not conducted, there is no way to know the Greenhouse Gas (GHG) impacts. The air quality and GHG modeling does include the estimated trips that would be generated during the construction and operation of the site and were found to be below SCAQMD Thresholds.
HIM
GP Consistency-, The comment letter has a statement that the project violates State Planning and Zoning Law and the City's General Plan, though no specific violations are noted, The proposed Project would develop a service -oriented commercial center within the City"s Service Commercial Land Use District, and therefore such uses are consistent with the City*s General Plan, A highlight of the General Plan policies supported by the Project are further noted in the Agenda Report, as well as a table showing the compliance with the City's Development Code.
Recirculation: The comment letter indicates that the MND should be recirculated to address the issues identified in their letter. However, no new information is provided that would require recirculation of the MND, and the Project impacts remain within the scope identified in the environmental analysis with no significant and unavoidable impacts expected.
CONCLUSION:
for approval by the Planning Commission,
37 City Council Meeting of January 23, 2023
SO Opal Inc (Case No. 21-026/CUP/DA)
mmmmm
38 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF I 7A
APPROVING A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF YUCAIPA
AND SG OPAL, A CALIFORNIA CORPORATION, TO ENABLE THE
DEVELOPMENT OF A 66-ROOM HOTEL, AND FUEL STATION/RETAIL ST RE
PROJECT
THE CITY COUNCIL OF THE CITY OF YUCAIPA HEREBY ORDAINS AS -I-
39 hearing, the Planning Commission recommended that the City Council adopt an ordinance approving the Development Agreement.
Section 5. On January 9, 2023, the City Council conducted a duly noticed public hearing to consider the Development Agreement. Notice of the time, place and purpose of the public hearing were duly provided in accordance with California Government Code Sections 65867, 65090 and 65091, and the City's ordinances.
Section 6. The City Council continued the item to January 23, 2023, and finds that the provisions of the Development Agreement are consistent with the City of Yucaipa General Plan and comply with its objectives and policies. The Development Agreement is consistent with and implements the objectives of the General Plan policies, including but not limited to CDL-8. 1, CDL- 10. 1, CDL- 10.4, CDL- 10. 16, ED- 1. 1, ED-2.5, and ED-2.6.
Section 7. The City Council hereby approves the Development Agreement and authorizes the Mayor to execute the Development Agreement on behalf of the City.
Section 8. No later than ten (10) days after the effective date of this Ordinance, the City Clerk shall record with the County Recorder a copy of the Development Agreement and the notice shall describe the land to which such contract applies.
Section 9. The City Clerk is hereby directed to cause a summary of this Ordinance to be published at least once in a newspaper of general circulation published and circulated in the City within fifteen (15) days after its passage, in accordance with Section 36933 of the Government Code; and shall certify to the adoption of this Ordinance.
Section 10. Effective Date. This Ordinance shall go into effect and be in fall force and effect at 12 - 01 a.m. on the thirty-first (3 1 st) day after its passage.
PASSED, APPROVED and ADOPTED this —th day of _, 2023.
Kimberly J. Metzler
City Clerk
Justin Beaver
L
-2-
40 Jennifer •
-3-
41 42
43 44
45 ffimzw��S
wwffgn���M
City of Yucaipa
Attention: City Attorney
City of T—uca-t-pa-,-a-U-aFitomia municipal corporation (the "City"), and SU-(Wppal�7Fnc—.,-a--(':-'Tl-tbrnia corporation (the "Developer"). The City and Developer are individually referred to herein as a "Party" and collectively referred to as the "Parties."
M2910M
This Agreement is made and entered into with regard to the following facts, each of which is acknowledged as true and correct by the Parties to this Agreement.
LON I I 1 (1) # I I V W, I I H 941-Wild 9 1 Or-14 8 11 a B. The City is owner of the Adjacent Property described in Exhibit "B" attached hereto .znd incorporated herein by reference
C. Developer desires to develop the Project (as hereafter defined) on the Property and a portion of the Adjacent Property.
D. Developer has applied to the City for approval of this mutually binding Agreement, pursuant to the provisions of the Development Agreement Regulations (as hereafter defined), Article 13 of Chapter 3 of Division 3 of the City of Yucaipa Development Code and other applicable laws.
ral mnew V#1111MC4411
46 limitation: Site Plan Approval, Conditional Use Permit/Architectural Review and this Agreement.
F. The City Council has specifically considered the advantages and impacts of this Project upon the welfare of the City and believes that the Project will benefit the City.
G. This Agreement eliminates uncertainty in planning and provides for the orderly development of the Project in a manner consistent with the City's Zoning Regulations (as hereafter defined), the Applicable Rules (as hereafter defined) and the General Plan (as hereafter defined).
H. To provide such certainty, the City desires, by this Agreement, to provide Developer with assurance that Developer can proceed with development of the Project with the uses, density and other land use characteristics specified in the Project Approvals. Developer would not enter into this Agreement, or agree to provide the public benefits and improvements described herein, without the City's agreement that the Project can be developed, during the term of this Agreement, with the uses, density and other land use characteristics specified in the Project Approvalas.
I. The City has determined that, as a result of the development of the Project in accordance with the Project Approvals and this Agreement, substantial benefits will accrue to the public.
J. The City has designed and constructed certain drainage improvements, with a total cost of over $14 million, within the Wilson Creek drainage area that have resulted in a revision to the Federal Emergency Management Agency's (FEMA) Flood Insurance Rate Map (FIRM) that removes a portion of the Property from the floodplain/floodway allowing for further development of the Property.
K. On December 7, 2022, pursuant to the requirements of the Development Agreement Regulations, the Planning Commission of the City of Yucaipa conducted a duly noticed public h irew'irfl,
Agreement. The Planning Commission also considered the Mitigated Negative Declaration (as hereafter defined) for the Project. At the conclusion of the hearing, the Planning Commission recommending that the City Council approve the Mitigated Negative Declaration, and Conditional Use Permit/Architectural Review for the Project.
L. On January 9, 2023, pursuant to the requirements of the Development Agreement Regulations, the City Council of the City of Yucaipa (the "City Council") conducted a duly noticed public hearing on Developer's application for this Agreement.
In
47 M. The City Council has found and determined that this Agreement is consistent with the City's General Plan and all other plans, policies, rules, and regulations applicable to the Project. 'A. On January 23, 2023, the City Council reviewed and approved, after making appropriate findings, a Mitigated Negative Declaration (as hereafter defined) for the Project that contemplates this Agreement.
0. On January 23, 2023, the City Council adopted Ordinance No. 419 approving this Agreement, and such ordinance became effective on _ 2023. �gql em (oil
1 90 -1 NO
acknowledged, the Parties agree as follows.-
1. Defim*tions. For all purposes of this Agreement, except as otherwise expressly and phrases shall be defined as set forth below:
(a) "Adjacent Property" shall have the meaning set forth in section 11 (c) of this Agreement.
(b) "Applicable Rules" means the rules, regulations, ordinances, resolutions, codes, guidelines, and officially adopted procedures and official policies of the City governing the use and development of real property, including, but not limited to, the City's Zoning Regulat-i ons and buildug re ulations . adopted as of the Effective Date. Amon- other matters-, the Applicable Rules set forth and govern the permitted uses of land, the density or intensity of use, subdivision requirements, the maximum height and size of proposed buildings, parking requirements, setbacks, and development standards, the provisions for reservation or dedication of land for public purposes, and the design, improvement and construction guidelines, standards and specifications applicable to the development of the Property, and the Developer Fees and Processing Fees applicable to the Project.
(c) "Building Permit" means a pen -nit issued by the City pursuant to Title 15 of the Yucaipa Municipal Code to authorize construction of a building or other structure. "Building N
W.,
J?not incl I ion permit or excavation anct stionng permit, 'FUT-s-Eaff inctude a foundation permit.
(d) "Business Day" means any day other than a Saturday, Sunday or California or [Federal holiday on which banks in the City are customarily closed. (e) "CEQA" means the California Environmental Quality Act (California Public Resources Code Section 21000 et seq.), as it now exists or may hereafter be amended, in conjunction with the State CEQA Guidelines (14. Cal. Code Regs. 15000 et seq) as it now exists ix as may hereafter be amended.
Now- 1
impact fees, affordable housing fees, traffic fees, infrastructure fee, linkage fees, exactions, new development by the City. "Developer Fees" do not mean or include Processing Fees. (h) "Development Agreement" or "Agreement" means this Agreement. (i) "Development Agreement Regulations" means Article 2.5 of Chapter 4 of Division I of Title 7 (Sections 65864 through 65869.5) of the California Government Code (as the same may be amended and/or re -codified from time to time), and the City's Regulations Establishina Procedures and Requirements for Consideration of Development Agreements, at Article 13 of Chapter 3 of Division 3 of the Yucaipa Develp ment Code (Section 83,0301305 et p
seq.).
0) "Discretionary Action(s)" or "Discretionary Approval(s)" means an action which requires the exercise of judgment, deliberation or discretion on the part of the City, including any board, agency, commission or department and any officer or employee thereof, in the process of a- --roving or disagprovin- a particular activit,� as distinguished from a Miniaterial Permit or Ministerial Approval (as hereafter defined).
(k) "Effective Date" shall mean the date this Agreement, fully executed, is recorded in the official records of the San Bernardino County Recorder. 0 49
11111111 11111111111�1111� 11111111� 111111111111,1111 pi��11� �111�1111;1111;11111 11111 )=I. -M
(1) "General Plan" means the General Plan of the City, as it exists as of the (m)"Gross Room Revenue" means revenue that is or would be subject to t transient occupancy tax imposed by the City pursuant to Chapter 3.20 of Title 3 of the Municipal Code as that Chapter exists on the Effective Date. (n) "Hotel" shall mean the hotel permitted to be constructed by the Project Approvals, and identified on the site plan set forth on Exhibit "C". (o) "Ministerial Permit(s)," or "Ministerial Approval(s)" means a permit or approval, including, but not limited to, Building Permits, grading permits, shoring and excavation nermits. demolition permits, zone clearances, and certificates of occupancy, which requires the City, including any board, agency, commission or department or any officer or employee thereof, to determine whether there has been compliance with Applicable Rules, statutes, ordinances, conditions of approval, and/or regulations, as distinguished ftom an activity which is included in the definition of Discretionary Action or Discretionary Approval. (p) "MND" shall mean the final Mitigated Negative Declaration adopted for the Project pursuant to CEQA.
(q) "Mortgage" means any mortgage, deed of trust, encumbrance, sale leaseback or other security interest encumbering all or any portion of the Property, given by Developer for the purpose of securing funds to be used for financing the acquisition of the Property or any portion thereof, the construction of improvements thereon and/or any other expenditures reasonably necessary and appropriate to develop and/or operate the Project. (r) "Mortgagee" means the holder of the beneficial interest under any Mortgage. (s) "Municipal Surcharge" means the fee paid pursuant to Section 10(d) of this Agreement.
. BE
permits, shoring and excavation permits, hauling permits, encroachment permits, demolition permits, subdivision or parcel maps, lot line adjustments, street vacations, inspections, certificates of occupancy and plan check. Processing Fees shall not mean or include Developer Fees.
N
50 (u) "Project" means the development project as described in the final MND, modified by the Project Approvals. i
(v) "Project Approvals" shall include, collectively, a Conditional Use Permit/Architectural Review for a proposed commercial center that includes a three-story 66 room hotel that is approximately 62,000 square feet in size, a 5,000 square foot convenience store/private office/quick service restaurant, a car wash, and gas station, and a Development Agreement approved by the City with respect to the Project and shall include any Subsequent Project Approvals (as hereafter defined).
I I I I" ff�M
W "Public Improvements" means the construction of a Multi -Purpose Trail per existing streets and curb/gutter.
(y) "Reserved Powers" means the power and authority of the City to enact regulations and/or take Discretionary Action if the same is expressly found by the City to be necessa ide
-ran i at I NWK I On K�
(z) "Subsequent Land Use Regulations" means any change in or addition to the Applicable Rules adopted after the Effective Date of this Agreement, including, without limitation—a-tv c�a-tge ill a-Fv annlicWe ge-teral or qnecific vlav- 7.*rti-t9,-siAdiviS4,-t- ariiiiIii-for M51111ILL111111, P111111QJ, TrIc 71 1 it, atorifirl, inniatelcur IRSUMOL Wr waj rel, Mayor, City Council, Planning Commission or any other board, agency, commission or department of City, or any officer or employee thereof, or by the electorate, as the case may be, which would, absent this Agreement, otherwise be applicable to the Project. (aa) "Subsequent Project Approvals" shall mean all further Discretionary Actions or Discretionary Approvals, Ministerial Permits and Ministerial Approvals required or requested with respect to the Project, including, without limitation, any tentative subdivision map. Following adoption or approval, a Subsequent P ject Approval shall become a Project TP r0i
Approval.
0 51
(bb) "Zoning Regulations" shall mean the official zoning regulations of the City adopted as of the Effective Date of this Agreement, (a) State Enabling Statut . To strengthen the public planning process, encoura 'r
private participation in comprehensive planning and reduce the economic risk of developme the Legislature of the State of California adopted the Development Agreement Regulatio which authorizes any city to enter into binding development agreements establishing certal develop` ghts in teal property with persons having legal or equitable interests in su 1�,roperty. Section 65864 of the Development Agreement Regulations expressly provides as follows- I
"(a) The lack of certainty in the approval of development projects c re lolinxc ar
-
to the consumer, and discouraRe investment in and a commitment t. comprehensive planning which would make maximum efficient utilization resources at the least economic cost to the public. I
"(b) Assurance to the applicant for a development project that upon approval of the project, the applicant may proceed with the project in accordance with existin olicie u es gi•re:1
Notwithstanding the foregoing, to ensure that the City remains responsive and by the Legislature, the City accepts restraints on its police powers contained in development Pgreements only to the extent and for the duration required to achieve the mutual objectives of the Parties.
(b) The Project. The Developer intends to develop the Property and a portion of the Adjacent Property as described in the Project Approvals and the final plans submitted to the City, subject to the Applicable Rules, the Project Approvals, and the Conditions of Approval.
The Parties hereb a ree that sub* e t to th i e
------------------
M
52 the Conditions of Approval. Subject to the exercise of the City's Reserved Powers, any Subsequent Project Approvals shall, at the election of Developer, be subject to the Applicable Rules or the rules, regulations, ordinances, resolutions, codes, guidelines, and officially adopted procedures and official policies of the City at the time of such Subsequent Project Approval. or -Am toul
4. A I pplication of Agreement This ARreement shall apply to the development and use of tile Property and the portion of the Adjacent Property that Developer is purchasing from the City. Such development and use shall be in accordance with the Project Approvals and this Agreement.
5. Term of Agreement. The initial term of this Agreement shall commence on the Agreement Effective Date, and shall continue for ten (10) years. Notwithstanding the term se) forth above, the obligation to pay the Municipal Surcharge pursuant to Section 10 shall continue indefinitely as provided in Sections 10 and 14.
UNION I W. Wi of
In
53 permit any use of the Property and Adjacent Property that is not permitted by the Project Approvals, and shall not cause or permit the construction of any building or improvement that exceeds the maximum density, building heights and/or building sizes set forth in or otherwise required by the Project Approvals, as they may be lawfully amended by Developer from time to time.
8. Devel2per's Rjgbj�. Developer shall have and is hereby vested with the rights, during the term of this Aareement, including any extensions, to develop the Project as set forth in the Project Approvals, as they may be lawfully amended by Developer from time to time, all of which are hereby incorporated in this Agreement by reference� • M P-M M L M.- IM .11 ato
I MOM. MM MIMMM
WMITUTTE177-07c; MITEM IT IM7 W LITIS XtrCCEIICUL, 4T �111J CIUMTE-rM, or addition to, the Applicable Rules ® than changes in Processing Fees as provided in this Agreement), including, without limitation, any changes in the General Plan or the Zoning Reulations (inctudin any regulation relating to the timing, sequencing, or phasing of the 9 CP -
Progject or construction of all or any part of the Project), adopted after the Effective Date of this Agreement, including without limitation, any such change by means of ordmiance, initiative, resolution, motion, policy, order or moratorium, initiated or instituted for any reason whatsoever and adoyted b-p, ani,, board 5W--PN--
the case may be, which would, absent this Agreement, otherwise be applicable to the Project and which would conflict in any way with or be more restrictive than the Applicable Rules or Developer's entitlements under the Project Approvals, shall not be applied to the Project during the term of this Agreement unless such changes represent an exercise of the City's Reserved Powers.
(b) Changes in Uniform Codes. Notwithstanding any provision of this Agreement to the contrary, development of the Project shall be subject to changes occurring from time to time in the provisions of the City's building, mechanical, plumbing and electrical regulations which are based on the recommendations of a multi -state professional organization znd become app-LicaW.
Code, and other similar or related uniform codes,
(c) Changes Mandated by Federal or California Laws or Regulations. Chang s ge too
0 54
provisions of the Applicable Rules and/or of this Agreement. For the purposes of this Agreement, the City's determination as to the applicability of California or federal laws to the Project shall be final and conclusive.
(d) Changes in Processing Fees Under Applicable Rules. The Project shall be subject to any increase in Processing Fees imposed by the City, provided that such a change is applied on a Citywide basis,
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(b) Reimbursement of Project ApRroval Costs. No later than the thirty (30) days following the Effective Date, Developer shall reimburse the City for all of its costs to process the Project Approvals, including legal and environmental processing costs related to the Project Approvals and preparation of this Agreement, if any.
ago=
time the fee is required to be paid.
(d) Municipal Surcharge. Developer and any successors in interest, shall pay to the City as set forth below-_in.,uqetuit- jercentage of Twoq! .6 the Hotel (the "Municipal Surcharge").
(i) Amount of Municipal Surcharge. For a period of one (1) year after the initial occupancy of the Hotel, Developer shall pay to the City a Municipal Surcharge in the amount of one percent (10/6) of the Gross Room revenue generated by the Hotel. After the al one (1) year period, the Municipal Surcharge shall be two percent (2%) of the Gross Room Revenue generated by the Hotel. After the initial two (2) years period, the Municipal Surcharge shall be three percent (3%) if the Gross Room Revenue generated by the Hotel for as long as the Hotel exist.
(ii) Timing of Payment. The Municipal Surcharge shall be payable monthly, based on the actual Gross Room Revenue received during the month for which payment is to be made ! at the same time and in the same manner as is required for payment of the City's transient occupancy tax imposed pursuant to Title 3, Chapter 3.20 of the Yucaipa Municipal Code, or its successor.
M
55 (iii) Acknowledgement The parties acknowledge and agree that the Municipal Surcharge is not a tax or a levy by City.
(iv) Late Charges, Interest. If Developer fails to pay the Municipal Surcharge within ten (10) days after its due date, Developer shall pay a late charge in the amount equal
of each calendar year by the increase, if any, during the immediately preceding calendar year in the Consumer Price Index - All Urban Consumers for Los Angeles -Riverside -Orange County, California as published by the U.S. four percent (40/6) of the Municipal Surcharge payment due but not paid. The XTAies k"r -r* ?-cWm1vvle-k@-zai 21'ree tk?.t the am-tvatif the-otsts 2ni exWses that City will incur in the event the Municipal Surcharge is not paid when due is extremely difficult to calculate, and that the late charge set forth in the immediately preceding sentence is a reasonable, good faith estimate of such costs and expenses, but payment of such late charge shall not limit the City's remedies following any default by Developer under this Agreement. If any Municipal Surcharge, including any late charge, is not paid within ten (10) days after the date on which the Surcharge is due, then such Municipal Surcharge (including any late charge) shall bear interest, from the due date until paid, at the rate that is the lesser of (i) ten percent (10%), or (11) the highest rate then permitted by applicable law.
(e) HgDeveloper agrees that the Hotel shall be built (including construction design and materials used) and shall operate at the same or better standard (on an overaft basis and in all material respects) as a typical suburban hotel appropriate for its site and location and shall include amenities such as, but not limited to, the following: designated reception area, exclusive facilities such as a fitness center and swimming pool, a designated breakfast area, and a variety of room amenities including cable or satellite TV and available in - room WI-Fl.
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(g) Easement. Developer shall execute an access easement through the Project area to allow the City access to the remaining portion of the Adjacent Property that is not being purchased by Developer. The easement area shall generally begin at the proposed signalized intersection and go through the Develo
Project and tie in with the remaining City owned parcel. The easement area is generally depicted on Exhibit "13".
56 (h) Developer agrees to submit necessary applications, including but not limited to a sign permit.
(i) Developer agrees that any future subdivision application submitted to the Cill N
(or the Project shall be a standard subdivision map and not a vesting map. M 0) Developer and its contractors shall carry out the design and construction of all private improvements on the Property and Adjacent Property and all Public Improvements in conformity with all applicable laws, including, without limitation, all applicable federal, state and local occupation, employment, prevailing wage, safety and health laws, rules, regulations and standards. Developer agrees to indemnify, defend and hold the City and other indemnified parties (as set forth in Section 18 below) harnitess from and against any cost, expense, claim, charge or liability relating to or arising directly or indirectly from any breach by or failure of Developer or its contractor(s) or agents to comply with such laws, rules or o regulatins including, but not limited to, any failure of Developer or its contractors to comply with applicable labor or prevailing wage laws. Developer's indemnity obligations set forth in this Section shall survive the termination or expiration of this Agreement.
11. City Commitments.
(i) City agrees to grant to Developer and its contractors the right to haul awo t 40 000 cubic d rf
Fee Funded City project such as the Wilson III Basin Project. !J%VArA=$1ea1JL4MJik1AVTAT05j
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57 Developer shall obtain at its sole cost and expense, and keep in force durm the tenn of this Agreement commercial general liabili insurance insuring, the I Mms=
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amounts of the insurance, and with the additional insureds required under this Section. Each policy shall contain an endorsement providing that it is not cancelable or subject to nomenewal or reduction in coverage except after thirty (30) days prior written notice from the insurance company to the City. If Developer fails to obtain the required insurance, the City may (but shall not be required to) obtain such insurance and the cost thereof shall be payable by Developer to the City upon demand.
(b) Pursuant to the City's Capital Improvement Program, City agrees to install a four-way signalized intersection at the comer of Oak Glen Road and Colorado Street on or before June 1, 2023, subject to Permitted Delays pursuant to Section 32 of this Agreement-, 12a
3 t, 2023. This signal was previously planned for and approved by the City Council as part of the Fiscal Year 2020/2021 Capital Improvement Program as it is part of Phase 11 of a street improvement project intended to improve Oak Glen Road between 14th Street and the 1-10 Freeway. Phase I of the street improvement project, including the widening of Oak Glen Road, which was completed in 20,17.
(c) The City agrees to convey to Developer a portion of the Adjacent Property" described on Exhibit "B" through a separate Purchase and Sale Agreement Developer agrees to pay to the City, the appraised value of $4.98 per square foot for the portion of the Adjacent Property it is purchasin from the CityDeveloper will submit to the City a site plan 9 which sets forth the portion of the Adjacent Property needed for the Project (currently estimated at 39,150 square feet). On , 2022, the City Council declared the Adjacent Property to be exempt surplus land pursuant to Government Code Section 54221(f)(1)(E). in
58 12. Issuance of Building Permit. The City shall be under no obligation to issue a - - - - - - - - - - - - -
13. Default. Failure by City or Developer to perform any term or provision of this Agreement for a period of thirty (30) days from the receipt of written notice thereof from the other shall constitute a default under this Agreement, subject to extensions of time by mutual consent in writing. Said notice shall specify in detail the nature of the alleged default and the manner in which said default may be satisfactorily cured. If the nature of the alleged default is such that it cannot reasonabl�wke c li-cf-rof
the cure within such time period and the difigent osecution to completion of the cure shall be Cpr
teemed a cure within such period.
Subject to the foregoing, after notice and expiration of the thirty (30) day period without cure, the notifying party, at its option, shall have aft rights and remedies provided by law and/or may give notice of intent to terminate this Agreement pursuant to Government Code Section 65868. Following such notice of intent to terminate, the matter shall be scheduled for consideration and review by the City Council within thirty (30) calendar days in the manner set forth in Government Code Sections 65867 and 65868. Following consideration of the evidence presented in said review before the City Council and a determination that a default exists, the Party alleging the default by the other Party may give written notice of termination of this Agreement to the other Party. Upon any such termination, the respective rights, duties and obligations of the Parties hereto shall without further action cease as of the date of such termination
In no event shall monetary damages be available against the City for any alleged default or breach bv the City. In no event shall consequential damages be available against Developer or any seller of any portion of the Property for any alleged default or breach of this Agreement. msing out of the provisions of this Agreement prior to the effective date of such termination provided that a Building Permit has been issued for any portion of the rP 4ect. After a Building 0i F"ermit has been issued for any portion of the Project, the obligations under Section 10, and the ibligation to pay any claim arising before the effective date of expiration or termination shall continue after termination in perpetuity or until completed.
15. Transfers of Interests in PropgAy or Agreement. In the event of a proposed transfer of interest in the Property or Adjacent Property or in this Agreement by Developer to a M
59 transferee, Developer agrees to provide the City at least thirty (30) days written notice of such proposed transfer and shall provide satisfactory evidence that the transferee will assume in such an assignment and assumption agreement is signed by the assignee upon acquiring the Property or Adjacent Property, or any portions thereof; and (ii) no such transfer shall relieve Developer (transferor) of any obligations under this Agreement unless: (A) at least thirty (30) days before any transfer, Developer has submitted to City the name of the proposed transferee and financial information regarding the transferee reasonably satisfactory to the City's Chief Financial Officer, and the City determines, prior to transfer, that the proposed transferee is able to satisfactorily fulfill the obligations of this Agreement, and (B) the transferee accepts, in w 'ting, the obligations of Developer under this Agreement. Such writing shall be in form and ri
content reasonably satisfactory to the City Attorney.
(a) In General. The provisions of this Agreement shall not prevent or limit Developer's right to encumber the Property or the portion of the Adjacent Property it purchases from the City, or any portions thereof or any improvement thereon by any mortgage, deed of trust or other security device securing financing with respect to such portion. The City acknowledges that Mortgagees may require certain interpretations and modifications of this Agreement and agrees upon request, from time to time, to meet with Developer and regresentatives of such Mort ag-e-es �tne�-
or modification. The City shall not unreasonably withhold its consent to any such requested interpretation or modification provided such interpretation or modification is consistent with the intent and purposes of this Agreement and does not, in the City's sole determination, dimimish the City's benefits from this Agreement or the security for those benefits. Any Mortgagee shall be entitled to the rights and privileges set forth in this Section. (b) Notice of Default to Mortgagee. If a Mortgagee has submitted a request in writing to City in the manner specified herein for giving notices, the City shall exercise its best efforts to provide to such Mortgagee written notification from the City of any failure or default by Developer in the performance of Developer's obligations under this Agreement, which notification shall be
Developer.
(c) Right of Mortgagee to Cure. Any Mortgagee shall have the right, but not the obligation, to cure any failure or default by Developer during the cure period allowed Developer under this Aareement, plus an additional sixty (60) days if, in order to cure such failure or default, it is necessary for the Mortgagee to obtain possession of the Property or Adjacent M
60 such curative efforts.
(d) Liability for Past Defaults or Obligations. Subject to the foregoing, any Mortgagee, including the successful bidder at a foreclosure sale, who comes into possession of the Project or the Property or Adjacent Property or any part thereof pursuant to foreclosure, eviction or otherwise, shall take such property subject to the terms of this Agreement and in no event shall any such property be released from any obligations associated with its use and development under the provisions of this Agreement. Nothing in this Section shall prevent City from exercisin,-N-jv�A reme& it m&,, have for a default under this A hmmr-. that in no event shall such Mortgagee personally be liable for any defaults or monetary obligations of Develo•er arising prior to acquisition of possession of such •ro•erty by such p p p
Mortgagee.
17. Binding Effect. All of the provisions, agreements, rights, powers, standards terms, covenants and obligations contained in this Agreement shall be binding upon the Parties and their respective heirs, successors (by merger, reorganization, consolidation or otherwise) and assigns, devisees, administrators, representatives, lessees, and all other persons acquin'nR the Property or Adjacent Property, or any portion thereof, or any interest therein, whether by operation of law or in any manner whatsoever, and shall inure to the benefit of the parties and their respective heirs, successors and assigns. All of the provisions of this Agreement shall oitute covenants running with the land.
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18. Indemnification.
(a) Developer agrees to and shall indemnify, hold harmless, and defend, the City and its respective officers, officials, members, agents, employees, and representatives, from liability or claims for death or personal injury and claims for property damage which may arise from the acts, errors, and/or omissions of Developer or its contractors, subcontractors, agents, employees or other persons acting on its behalf in relation to the Project and/or in any manner arising from this Agreement. The �fbregoing indemnity applies to all deaths, injuries, and damages, and claims therefor, suffered or alleged to have been suffered by reason of the acts, errors, and/or omissions referred to in this Section 18, regardless of whether or not the City prepared, supplied, or approved plans or specifications, or both. In the event of litigation, the City agrees, at no cost to the City, to cooperate with Developer. This indemnification, hold harmless and defense retuirement shall survive the termi atisiaw-e-A00%aAme The City reserves the right, i cases subject to this or any other -indemnity contemplated by this Agreement, to reasonably approve the attorney selected by Developer to defend Developer and the City in any such action,
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61 (b) In the event of any court action or proceeding challenging the validity of this Agreement, any of the Project Approvals or the MND prepared and adopted for the Project, Developer shall defend, at its own expense, the action or proceeding. In addition, Developer shall reimburse the City for the City's costs in defending any court action or proceeding challenging , the validity of this Agreement, any of the Project Approvals or the MND and Developer shall also a a award of costs ex en
In order to ensure compliance with this Section 18(b), within twenty (20) days after notification by the City of the filing of any claim, action or proceeding to attack, set aside, void or annul this Agreement, any of the Project Approvals or the MND prepared and adopted for the Project, Developer shall deposit with the City cash or other security in the amount of twenty thousand dollars ($20,000.00), satisfactory in form to the City Attorney, guaranteeing indemnification or reimbursement to the City of all costs related to any action triggering the obligations of this Section. If the City is required to draw on that cash or security to indemnify or reimburse itself for such costs, Developer shall restore the deposit to its original amount within fifteen (15) days after notice from the City. Additionally, if at any time the City Attorney determines that an additional deposit or additional security up to an additional fifty thousand dollars ($50,000.00) is necessary to secure the obligations of this section, Developer shall provide such additional security within fifteen (15) days of notice from the City Attorney. The C1 sha romptly notif -btc. actiot or ceed , WiAi* ae B of t�is Develooer of anv cla -oroceed Sal -
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.WV'TULfUF F S W115MIL UIRAI 11 Lae resolution oi Me cnatienge snau require a p by Developer or limit Developer's rights under this Agreement.
19. Relationship of the Parties. The Parties acknowledge and agree that Developer is not acting as an agent, joint venturer or partner of the City, but each is, in fact, an independent contractual party and not in any way under the control or direction of the City except as is expressly provided to the contrary in this Agreement.
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62 within ten (10) days following its execution by both Parties, Developer shall reimburse the City for all costs of such recording, if any.
21. No Third Party Beneficiaries. The only signatories to this Agreement are the City and Developer. There are no third party beneficiaries and this Agreement is not intended and shall not tlkz-�*iie
successors in interest of the signatories.
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amn Fir counse, and theretorp sliall not be c nstrue ag nst e t er o t: s nits as draftsperson, but in accordance with its faimeaning.
23. Certificate of Compliance. At any time during the term of this Agreement, any Mortgagee or other party may request an Party to this Aureement to confirm that (i) this y
Agreement is unmodified and in full•r &
24. Consideration. The City and Developer acknowledge and agree that there is good, sufficient and valuable consideration flowing to the City and to Developer pursuant to this Agreement as more particularly set forth in the Recitals and Section 2 of this Agreement. The Parties further acknowledge and agree that the exchanged consideration hereunder is fair, Just znd reasonable.
(a) Annual Reviews. The City shall conduct annual reviews to determine whether Developer is acting in good faith compliance with the provisions of this Agreement and the Development Agreement Regulations. The reasonable cost of each annual review conducted during the term of this Agreement shall be reimbursed to the City by Developer. Such reimbursement shall include all direct and indirect expenses reasonably incurred in such annual reviews.
(b) Special Reviews. In addition, the City Council of the City may order a special periodic review of Developer's compliance with this Agreement at any time. The cost of such special reviews shall be bome by the City, unless such a special review demonstrates that -18-
63 Developer is not acting in good faith compliance with the provisions of this Agreement. In such cases, Developer shall reimburse the City for all costs, direct and indirect, incurred in conjunction with such a special review.
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review. In addition, upon the written request of the Community Development Director, Developer shall furnish such documents or other information as requested by the Community Development Director.
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fCffrr#TL--cJ*1r1P?M't TrF&*R17W-_1'4dLLL1 PLUL LIM WMIS ULIU CUILUILIMIS *1 EROS eilg'T M the Community Development Director shall specify in writing the respects in which Developer has failed to so comply. The Community Development Director shall provide Developer with written notice of such noncompliance as provided in Section 13 and the City may follow the default procedures as set forth in Section 13.
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this Agreement pursuant to the provisions of Section 13 following any event of default by Developer.
26. Future Litigation Expenses.
(a) Pffment of Prevailing P If the City or Developer brings an action or proceeding (including, without limitation, any motion, order to show cause, cross -complaint, counterclaim, third -party claim or arbitration proceeding) by reason of default, breach, tortious M
64 act, or act or omission, arising out of this Agreement, the prevailing party in such action or proceeding shall be entitled to its costs and expenses of suit including, but not limited to, reasonable attorneys' fees and expert witness fees.
(b) Scope of Fees. Attorneys' fees under this Section shall include attorneys' fees on any appeal and, in addition, a party entitled to attorneys' fees shall be entitled to all other reasonable costs and expenses incurred in connection with such action. In addition to the foregoing award of attorneys' fees to the prevailing party, the prevailing party in any lawsuit shall be entitled to its attorneys' fees incurred in any post -judgment proceeding's to collect or enforce the judgment, This provision is separate and several and shall survive the merger of this Agreement into any judgment on this Agreement.
27. Headinas. The section headings used in this Agreement are for convenient reference only and shall not be used in construing this Agreement. The words "Include," "'including" or other words of like import are intended as words of illustration and not limitation and shall be construed to mean "including, without limitation."
28. Amendment, This Agreement may be amended from time to time, in whole or in f
part, by mutual written consent of the Parties or their successors in interest, as Oltows. (i) City and Developer, by mutual agreement, may terminate or amend the terms of this Agreeme ni
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(ii) Except as may be otherwise agreed to by the Parties, no amendment of this Agreement shall be required in connection with the issuance of any Subsequent Project Approval. Any Subsequent Project Approval issued after the Effective Date of this Agreement zutomatically shall be incorporated into this Agreement and vested hereby.
29. Alterations. No alteration, amendment or modification of this Agreement shall be valid unless evidenced by a written instrument executed by the parties hereto with the same formality as this Agreement, and made in the manner required by the Development Agreement Regulations.
30. Waiver. The failure of either Party hereto to insist in any one or more instances upon the strict p�rfbrmance of any of the covenants, agreements, terms, provisions or conditions of this A eement, or to exercise any election or option herein coritainedi shw t. h waiver or relinquislunent for the fixture of such covenant, agreement, term, provision, condition, election or option, but the same shall continue and remain in full force and effect. No waiver by any Party hereto of any covenant, agreement, term, provision or condition of this Agreement HE
65 shall be deemed to have been made unless expressed in writing and signed by an appropriate ffficial • officer on behalf of such Party.
31. Severability, If any article, section, subsection, term or provision • this Agreement, or the application thereof to any party or circumstance, shall, to any extent, be invalid or unenforceable, the remainder of the article, section, subsection, term or provision of this Agreement, • the application of the same to parties or circumstances other than those to which it is held invalid or unenforceable, shall not be affected thereby, and each remaining article, section, subsection, term or provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
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the necessary materials or supplies necessary to construct the Project; damage to work in progress by reason of fire, floods, earthquake or other casualties; failure, delay or inability of the other Party to act-, terrorism, and litigation brought by a third party attacking the validity of this Agreement, the Project Approvals or the MND.
33. Notices. All notices, disclosures, demands, acknowledgments, statements, requests, responses and other communications (each, a "Communication") to be given under this Agreement shall be in writing, signed by a signatory hereto (or an officer, agent or attorney of such p"� i1ving such Communication, and shall be deemed effective �i) upon receig if hand Wft7MU *F 5011L Vy OTCrIllglit CAMM11-SC", �JpVll MITZTJ Ur tat; Uutt: IT. FET171?01111"n by the United States mail, postage prepaid, certified mail, return receipt requested, in either case zddressed as follows:
To Developer: SG Opal, Inc•
1462 Crestview Road
Redlands CA 92374
Attn: Pankaj Patel
With Copy to: Mirau, Edwards, Cannon, Lewin & Tooke
P.O. Box 9058
Redlands, CA 92375-2258
Attn: John K. Mirau, Esq.
To City: City Manager
City of Yucaipa
NM
66 Oft"WO-MM-01MMM
Yucaipa, CA 92399-2434
With Copy to: David Snow
City Attorney
Richards, Watson & Gershon
350 South Grand Avenue, 37th Floor
Los Angeles, California 90071
Any signatory hereto may from time to time, by notice given to the other signatories hereto pursuant to the terms of this Section 33 change the address to which communications to such signatory are to be sent or designate one or more additional persons or entities to which communications are to be sent,
34. Applicable Law. This Agreement shall be governed in all respects by the laws of the State of California.
35. Jurisdiction and Venue. Any action at law or in equity arising under this Agreement or brought by a party hereto for the purpose of enforcing, construing or determining the validity if any provision of this Agreement shall be filed and tried in the Superior Court of the County of San Bernardino, State of California, and the parties hereto waive all provisions of law providing for the filing, removal or change of venue to any other court.
36. Time is of the Essence. Time is of the essence of this Agreement and every term or performance hereunder. Any Developer's obligation that is contingent upon an action of the City shall be tolled for the period of time of any unusual delay in the City's completion of its prerequisite action, excluding any delays resulting from the failure of Developer to process any zpplications diligently or fulfill other requirements necessary to enable the City to complete its prerequisite action.
37. Entire Ag��ement, This Agreement supersedes any prior understanding or written or oral agreements between the Parties hereto-resvec-,drig, lie-wtia*c�.�,�eie&;r—g.-k&�-,tc&,wg.)k entire understanding between the Parties with respect thereto.
38. Counter is parts. Th' 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 instrument,
39. Compliance With Law. Notwithstanding any provision of this Agreement, the Parties agree to comply with all federal, state and local laws and to act in good faith and reasonably in carrying out the terms of this Agreement,
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67 40. Authorization. Each person executing this Agreement represents and warrants that he or she is authorized and has the legal capacity to execute and deliver this Agreement on behalf of the Party for which execution has been made.
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement as of the day of — 2023.
CITY OF YUCAIPA,
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I . 8.41M.11g,11LI[Ill Me
(SEAL)
Kim J. Metzler
City Clerk
SG OPAL, INC., a California corporation
By:
Name: PankajPat*el
Its: President
By:
Name:
Its:
APPROVED AS TO CONTENT:
9?4*AJW1A1W# AM14NA
City Manager
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68 111 111111 1111111111111111111 1111liq 1111111111111111111 pjrq� 1111 I W4 40 11 .13
The Property situated in the State of California, County of San Bernardino, City of Yucaii described as follows:
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CITY OIVKD PROARTY
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