HomeMy WebLinkAboutOrdinances - No. 1794ORDINANCE NO. 1794
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF LODl
ADOPTING A DEVELOPMENT AGREEMENT PERTAINING TO THE ,
DEVELOPMENT OF 151 ACRES LOCATED ON THE WEST SIDE OF
LOWER SACRAMENTO ROAD BETWEEN THE WOODBRIDGE IRRIGATION
DISTRICT CANAL AND VINE STREET (WESTSIDE PROJECT)
(DEVELOPMENT AGREEMENT GM-05-002) --------------------------------------------------------=------------ ________________-_______________________----------------- -----------
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LODl AS FOLLOWS:
SECTION 1. The properties subject to this Development Agreement include the following:
151 acres within the Westside Project area located on the west side of
Lower Sacramento Road between the Woodbridge Irrigation District canal and
Vine Street (Assessors Parcel Numbers 029-380-05, 027-040-01, 027-040-020,
and 027-040-030).
SECTION 2. The applicant for the requested Development Agreement is as follows: Frontier
Community Builders.
SECTION 3. The requested Development Agreement is summarized as follows:
Development Agreement GM-05-002 is an agreement between the City and the developer, in
which the developer agrees to provide certain benefits to the City in exchange for a vested right
to proceed with the development consistent with the development approvals. The term of the
Development Agreement is 15 years. The vested right the developer obtains is the ability to
proceed with the development as approved and to avoid the imposition of new regulations on
subsequent discretionary approvals (i.e. vesting tentative maps) for the development.
SECTION 4. The City Council hereby finds that the proposed Development Agreement is
consistent with the General Plan land use designation and the zoning for the proposed
development.
SECTION 5. The City Council, by Resolution No. 2007-48, has certified the Lodi Annexations
Environmental Impact Report (EIR) and adopted a Statement of Overriding Consideration for
the proposed project.
SECTION 6. The City Council hereby adopts Ordinance No. 1794 approving the Development
Agreement by and between the City of Lodi and Frontier Community Builders, attached herein
as Exhibit A.
SECTION 7. No Mandatory Duty of Care. This ordinance is not intended to and shall not be
construed or given effect in a manner which imposes upon the City, or any officer or employee
thereof, a mandatory duty of care towards persons or property within the City or outside of the
City so as to provide a basis of civil liability for damages, except as otherwise imposed by law.
1
SECTION 8. Severability. If any provision of this ordinance or the application thereof to any
person or circumstances is held invalid, such invalidity shall not affect other provisions or
applications of the ordinance which can be given effect without the invalid provision or
application. To this end, the provisions of this ordinance are severable. The City Council hereby
declares that it would have adopted this ordinance irrespective of the invalidity of any particular
portion thereof.
SECTION 9. This Ordinance was introduced by the Lodi City Council on March 21, 2007, and
adopted by the Lodi City Council on April 4, 2007. This Ordinance shall take affect 30 days
from and after its adoption. The ordinance summary shall be published in the Lodi News
Sentinel, a newspaper of general circulation published and circulated in the City of Lddi.
A certified copy of this ordinance is available for review in the in the City Clerk's office located at
221 West Pine Street.
Appyfed this 41h day of April, 2007
BOB JO~N~ON
Mayor 0" w RA DIJOHL
City Clerk
State of California
County of San Joaquin, ss.
I, Randi Johl, City Clerk of the City of Lodi, do hereby certify that Ordinance NO. 1794
was introduced at a regular meeting of the City Council of the City of Lodi held March 21,2007,
and was thereafter passed, adopted, and ordered to print at a regular meeting of said Council
held April 4, 2007, by the following vote:
- ____________________-__-------------
AYES:
NOES; COUNCIL MEMBERS - None
ABSENT: COUNCIL MEMBERS - None
ABSTAIN: COUNCIL MEMBERS - Hansen
COUNCIL MEMBERS - Hitchcock, Katzakian, Mounce, and Mayor Johnson
I further certify that Ordinance No. 1794 was approved and signed by the Mayor on the date of
its passage and the same has been publishe ant to law.
City Clerk
Approved as to Form:
City Attorney
2
ATTACHMENT A
WESTSIDE PROJECT DEVELOMENT AGREEMENT
3
OFFICiAL BUSfNESS
Document entltled to free recordtng
Government Code Section 6103
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO
City of Lodi
F 3 Box 3006
LOdI, CA 95241-1910
Attr! Ctty Clerk
(SPACE ABOVE THIS LINE RESERVED FOR
RECORDER'S USE)
DRAFT DOCUMENT
DEVELOPMENT AGREEMENT
BY AND BETWEEN
THE CITY OF LODl
AND FRONTIER COMMUNITY BUILDERS, INC.
FOR FC6 WESTSIDE PROJECT
TABLE OF CONTENTS '.
........ 3 :;E.:;;T,A.,S ............................................................
............................... 3 Authorization .... .................................................. Property .......... ......................................................
9rojeC .. ............................................................
Fubiic Hearing. ................. ........................... ................................... :_. 3
Environmen@i Review ................................ .................................... 3
DCojed Approvals .................................... ................................... 3
......
....
..
. .. Ned for Sewices and Facilities. ..........................................................
Contribution tc Costs of Facilities and Services ........................................................... ,:
{ Devejopment Agreement Resolution Compliance ............. .................................................. 5 a
' ' .
... C.ons,stency with General and Specific Plan. ...................
3escription of.Properiy . . .. ............................................................................. 5;
7 interest of Landewner ......................................................... ................................ 5
Creation of Career-Oriented Empioymenl OppOnunltieS
,L,SFEEMEN?, ..........................................................................
incorporation of Recitals .........................................................................................
; Relationship 0: City and Landowner .......................................................
i E,ffective Date an; Term , ..,, , .,,. ,.,., .. , ....................................................
........................................................ Effective 0.a~ ..
- T ......................................................................................... ..6
AulomatlC 1-emtnation Upon Completion and Sale of Residential Lot ................................... 6
_. .- I em
c, .. ... 25e of Property ............................ ...........................................
Right to Geveloy: . . ......................... ...................................... 6
Permitted Uses ................................................................................... 8
Moratorium Ouotas, Restrictions 01 Other Growth LimitattOnS. .........................
~. .
~~ .....
Addittonal Cmditions ...........................................................
Annexation
.&pplicable Rules. Regulations, Fees and Official Policies .................................................
-. Rules Regarding permitted Uses. ................................. ................................
7 1
.~ . Rules Regarorng Design and Construction ............................................................
..........................................
L ..........................................................
Cnanges ;n State or Federal Law.
Uniform Codes Applicable.
Existing Fees Scbsequentry Enacted Fees. Dedications. Assessments and Taxes. . processing Fees and Charges. ...........................................................
Existvq Fees. Exactions and Dedications..~.
S&sequeh( Devebpmcnt lmpsci Fees, Exactions and DediGa
................................ 19 -- ................. -- _.
II .! ...
" lnciusion :fi r;ommunitv Facilities District 29
Oommunity Facilrks District ............................................... ., ......... 24 e "
1 Dele b' ...............................................................
-3 .. :
Use of Cornmuni:y Facilities District Revenues ...................................
Community Facilities District for Residential Property - Landowner F
processing o! Subsequent Development Applications and Building Perm
;,iendment 08. Cznceilaiien ...............................................................
,
:
.. Modification Because of Conflict with State or Federal Laws ...........
kmendmeni by Mutual Consenl . . .............................
.., . !=is,<,* 4 .: g!Xc-
3 .. j insubstantla; Amendments ................................................................ &?,
Amendment of Project Approvals ............................................................................... 22
Cancellation by Mutual Consent. .............................................................. a
Term of project Approvals .............................................................................. a
1: Annual Revie*, ....... I... a .. Review Date .................................................................................. a
.................................................................. a. *I ; .- Initiation of Review..
"^I , : Staff Reports ..............................................................
?C L costs ................................................................................................ 2,
Non-compliance with Agreement; Hearing. ............................................................ a,.,
Appeal of Detenination. .................................................................................. 24.
Procedure Regarding Defaults. ................................................................................... 3,
1:. Estoppel Certificate .................. 25
15 '. Mortgagee Protection ..... ................................................ g,
76 2 Mortgagee Not Obligated.. ......................... ........................................................ a.
I ._ Severabiiity. ............................................................................................. 2G
;. ,.q . : 5 .. 2
...... ............................................................
1 r_ :
1i.f.
$,
I, .-, Default. ........................................................................................................... 29
.....................................................................
76, Mortgagee Protection; Certain Rights of Cure. ........... ......................................................... 25
16 5. Notice of Default to Mortgagee and Ertension :to Cure ........................................ &
.............................................................. ' E. Applicable Law ........
I .. : k&orneys' Fees and Costs in Legal Actions By Parties to the Agreement. ...........
ir. ...................................................................... 27, %w-..,i Processing
T-ansfers and Assignments. "- LL, _..~
......... ........................ ...................... ..%
;c 'ndemnificalion . ~. .............
i c ...... .................................................................. z4
25 ' Pubk Liability and Property Damage Insurance. .................................... 23
~t,~ Workers' Compensation InSUranCe ...................................................................... 3
Evidence of Insurance. .............................................................................. 3
26. Excuse for Nonperlorrnance ............................................................
2; Third Party Beneficiaries.. ........ .............................................
25, Notices .................................................................... .................................. 2% ;: Form of Agreement: Recordation; Exhibits. .......................................................... a ". ,r, Fwther Assurances. ..................................................................................... 29
.:' Zity Cooperatior .. ............................................................................ xl
..I ? kltrorneys' Fees and Costs in Legal Actions By Third Parties to the Agreement a
.................................................... .. ,_ ,. .... .................................................... Agreement Runs with the Land
Bankruptcy. .
..................................
,.,~, !%urance ....
-.. -
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DEVELOPMENT AGREEMENT
FCB WESTSIDE PROJECT
, 2007, by This Development Agreement is entered into as of this - day of __
SI-,~ Detween the CI? OF LODI, a municipal corporation ("City"). and, FRONTIER
:aMMUNlTY BUILDERS. INC. i"iandowner"). City and Landowner are hereinafter collectively
-sferred 10 as the "Parties" and singularly as "Party."
RECITALS
1. Authorization. To strengthen the public planning process, encourage private
paiiiclpation in comprehensive planning and reduce the economic risk of development, the
i.egislature of the Siate of California adopted Government Code Section 65864, et seq. (the
~'3eveiopment Agreement Statute"), which authorizes the City and any person having a legal or
eajitabia interest in the real property to enter into a development agreement, establishing
ceflat' development riphts in the Property which is the subject of the development project:
a3oiicatrW
,
2. Property Landowner holds a legal or equitable interest in certain real property
C,zaltc IT ?he Ci!y 0' iodi, County of San Joaquin. more particularly described in Exhibit A-I
Landowner represents that all persons holding legal or
egJ;imie interests in the Property shall be bound by this Agreement.
achec hereto (the "Property'?
3 m. Landowner has obtained various approvals from the City (described in ..^_,. ,.. e netail in Recital 0 oelow) for a mixed use orojecl known as FCB Westside (the "Project")
:: 3e mated on the Property.
4, Public Hearing. On October 25, 2006. the Planning Commission of the City of
SS;, ;ctcn$ pursuant 19 Government Code Section 65867, held a hearing to consider this
;.,creemect ~ and the Planning Commission action has been reported to the City Council.
5. Environmental Review. On 2007. the City Council certified as
sai?q+at~ and complete the Lodi Annexation Environmental Impact Report ('EIR") for the
::.-c:zEc: Mitigation measures were required in the EIR and are incorporated into the Project and
ms and conditions of this Agreement. as reflected by the findings adopted by the City
currently with this Agreement.
6. Proiect Approvals. The following land use approvals (together the "Project
;c.crc::ais"j havE beer granted for the Property, which entitlements are ?he subject of this
a;reemert
6.1. Tw EIR. The Mitigation Measures in the EIR are incorporated into the
.,,ti: ano into the terms and conditions of this Agreemen1 (City Resolution No. 1:
i
6.2. , P. General Plan Amendment (the "General Plan"), (attached hereto as
Tne Zoning of the Propefiy (attached hereto as Exhibit B-1) approved by
Tne Large Lot Tentative Subdivision Map for the Project (attached hereto
,?: .-- ExhibiiB to be subsequently considered by the City through a noticed public hearing
1::xess. 'The parties agree that the large lot subdivision map included herein is for illustrative
:.-rposes only and shali not be effective until approved through a notice public hearing process
L! !he ::it?. I! approvec by the City, the Large Lot Subdivision Map shall thereafter be included
wthc iqe Project Approvals listed hereinj:
Z nib^: E, approved by ?he City on
.-e %;I:?; or .- 2007 (Ciiy Ordinance No. j;
2007 (City Resolution No. 1;
6.3.
6.4.
6.5. Reserved;
6.6.
r,e& as Exhibit D). approved by the City on
The Development Plan and Infrastructure Plan for the Project (attached
, 2007 by City Resolution No.
6.7. The Growth Management Allocations. as required by Chapter 15.34 of
..x Municipal Code. as set forth in Exhibit E: approved by the City on
~ ._. - 2007 by Ordinance No.
6.8. Tnis Deveiopment Agreement, as adopted on , 2007 by
C-diiance No. (the "Adopting Ordinance"): and.
6.0. be Annexation Approvals granted by San Joaquin County Local Agency
ma:: Commission as shown in Exhibit F attached hereto.
7, Need for Services and Facilities. Development of the Property will resul! in a
-eed 9i municipal services and facilities, some of which will be provided by the City to such
:.eieiocrnent subject 10 !he performance of Landowner's obligations hereunder. Wdh respect to
Y.~c, r;;rsuant io Godernrnent Code Section 65867 5. any tentative map approved for the
il: comply wit5 the provisions of Government Code 66473.7.
8. Contribution lo Costs of Facilities and Services. Landowner agrees to
iri-tite !o the costs of such public facilities and services as required herein to mitigate
-!pac:s on !he community of the development of the Property, and City agrees to provide such
Cv.9ric faciiities and services as required herein to assure that Landowner may proceed with and
,peie development cf the Property in accordance with the terms of this Agreement. City and
s.xi~.bwr recognize and agree that, but for Landowner's contributions set forth herein
a ::v contributions :o mittgale the impacts arising as a result of development entitlements
gmntec pursuant to this Agreement. City would not and could not approve the development of
?he Property as provided by this Agreement and that; but for City's covenant to provide certain
!ac,iities and services for development of the Property, Landowner would not and could not
pi to provide the mitigation as provided by this Agreement. City's vesting of the right to
OE~.P~CD !he Property as provided herein is in reliance upon and in consideration of Landowner's
ai;!eeT:ent to make contributions toward the cost of public improvements as herein provided to - :ticate tne impacts of development of the Property as development occurs.
'
9. Development Aqreernent Resolution Comoliance.. City and Landowner have
ral;eri a;; actions mandated by, and fulfilled all requirements set forth in; the Development
A-~?enen: Resolution ~f the City of Lodi. as set forth in the City Council Resolution No. 2005-
!c' the consideratiof, and approval of the pre-annexation and development agreement
50. Consistencv with General and Specific Plan. Having duly examined and
cmsioeted this Agreement and having held properly noticed public hearings hereon, the City
'cat :his Agreemeit satisfies the Government Code 965867 5 requirement of general plan,
r: n5;$;E."'\' "i
NOW. TIIEREFORE. in consideration of the mutual promises, conditions and '.
ccvecants hereinafter set forlh. the Parties agree as follows:
AGREEMENT
?.
join are hereby incorporated into this Agreement as if set forth herein in full.
2.
Incorporation of Recitals. The Preamble, the Recitals and all defined terms set
: ,._/_ ."
,
Description of Property. The property. which is the subject of this Development
IA~r~e~en:. IS described in Exhibit A-1 and depicted in Exhibit A-2 attached hereto ("Property"j. ':
., . Interest of Landowner. The Landowner has a legal or equitable interest in the
"rsperi$ Landowner represents that all persons holding legal or equitable interests in the
Prcperty shall be bound by the Agreement.
-
4. Relationshio of Citv and Landowner. I1 is underslood that this Agreement is a
6c? :hat has been negotiated and volunlarily entered inlo by City and Landowner and that
ewner is no: an apnt of Ci!p. The City and Landowner hereby renounce the existence of
i -r- of joint venture or parinersnip between them, and agree that nothing contained herein
c' 81 any document executed in connection herewith shall be construed as making the City and
s%hwer ioint venturers or pariners
5. Effective Date and Term
5.1. Effective Date. The effective date of this Agreement ("Effective Date") is. ., i
adopting this': ' - ... .- 2007, which is the effective date of City Ordinance No.
>,,gl@E"lEf?t
5.2. ilpon execution, the term of this Agreement shall commence on
'.E ECeci~e Date and extend for a period of fifteen (15)years . unless said term is terminated,
:ET this Agreement shall be deemed terminated and of no further force and effect. Said
ation of the Aareement shall not affect any right or duty created by City approvals for !he
:;.:pe-y aoopteo prior TO. concurrently with. or subsequent to the approval of this Agreement,
;be ooiipattons of Sections 2G. 24 or 25 of this Agreement. In the event that litigation is filed
: 5 :,-:re party (defined !o exclude City and Landowners or any assignees of Landowner) which
k~ TC irvaltdate thtr Agreement or the Project Approvals, the expiration date of this
e-e:: shall be extended for z pertod equal to the length of time from the time the summons
:'- : x'ciaiit andiot petitior are served on the defendant(sj until the judgment entered by the
-. #- L '.r,a: anc no1 wbject tG appeal, provided, however. :hat the total amount of time for
expiralion date shall DE extended as a result of such litigation shall not exceed four;
eals
... ~ .... n $ed GI extended by circumstances set forth in this Agreement, Following the expiration of
,
5.3. Automatic Termination Uoon Completion and Sale of Residential,
?is Agreemen! shall au?omatically be terminated. without any further action by either
wed ?o record any additional document, with respec: to any single-family residential lot
parcel designated by the Project Approvals fcr residential use, upon completion of
tor and issbance by the City of a final occupancy permit for a dwelling unit upon such
a, iot and conveyance of saich improved residential lot by Landowner to a bona-fide
r parchaser thereof. in connection with its issuance of a final inspection for such
:of City shall confirm t'lat all improvements, which are required to serve the lot. as
S-..~L' 3f Cily. have been accepted by City. Termination of this Agreement for any such'
:-z. oe-liav el as oroviaed for in :his Section shall not in any way be construed to terminate or
. . ... -2t' . E ?:me of termination
~. - LO:
arx assessmen! 3!s!ricr cr Metlo-Roos Commmity Facilities District lien affecting such ~. .' .r
6. Use of Property.
6.1. Vested Right to Develoe. Landowner shall have the vested right to
eim tne Project in eccordance'with the terms and conditions of this Agreement, the Project
-,J xi ais lhe City's existing polcies. standards ana ordinances (except as expressly modified
: -mi$ Secttor? F.? and Section E.3) and any amendments to any of them as shall, from time to
: ~--~e :-)e approved pursuant to this Agreement. Landowner's vested right to develop the
--~pe?:v shall be subject lo subsequent approvals: provided however, except as provided in
c-, 5.: that any csndittons. terms, restrictions and requirements for such subsequent
as shai! pot prevent development of the Property for the uses, or reduce the density and
)E :: 2: developmen: or iimti the rate or timing of development set forth in this Agreement.
s Landowner is no: :r default under this Agreement. Notwithstanding the vested rights
oranted herein, Landowner agrees that the following obligations, which are presently being
jevelooed. shall apply to development of the Property:
6.1.1 Payment of a development fee for a proportionate share of ,the
design and construction cost of the Highway 99 interchange
project at Harney Lane.
6.1.2 Payment of Agricultural Land Mitigation fee, as identified in
Mitigation Measure LU-2, pursuant to the ordinance andlor
resolution to be adopted by the City of Lodi.
6.1.3 Payment of Electric Capital Improvement Mitigation fee (see
Section E 4.10) pursuant to the ordinance andlor resolution to be
adopted by the City of Lodi.
6.1.4 Payment of development fee for proportionate share of the costs
of oesigning and constructing a water treatment system andlor
percolation system for treatment of water acquired from
Woodbridge Irrigation District (see Section 6.4.7) pursuant to the
ordirlance anlor resolution to be adopted by the City of Lodi.
Wth regards to the fees identified in Sections 6.1.1, 6.1.2. 6.1.3. and 6.1.4 and these fees only,
Landowner hereby consents to their imposition as condilions of approval on any discretionary or
z:Gisteriai land use entillemenf subsequently granted by the City including but not limited to
:ssmr,se of building permits. City agrees that the fees payable by the Landowner pursuant to
Sectiors 5.3 ’I 5.:.2. 6,’.3 and 6.1.4 shall be adopted in conformance with applicable law, and
s-aii apply Anifcrmly tc all new development on properties within the City that.are zoned
c:-~srs;eit wlth the Project Approvals, or apply uniformly to all new development on properties
Ira: are s’miiarly situated whether by geographic location or other distinguishing circumstances.
-,.” -‘.-e~: ‘cr !he fees identified in this Agreement including but not limited to the Project
,A.~~rovais Sections E -,.I. 6.: 2. E 1.3 6 1.4 and 8.3. no other subsequently enacted
csyekcment cr capitai fee shall be imposed as a condition of approval on any discretionary or
7- -1steriai decision. The Parties acknowledge and agree that the fees applicable to the
2eL-eiopment pursuant tc the Project Approvals and this Agreement may be increased during
:fir !ei- cf tnis Agreement provided that (1) such increases are limited to annual indexing (i.e
pe. i‘le ETgineering News Record index: or the CPI. or other index utilized by the City) and as
~~c~v.sec current fee ordinances and i2) the increased fees are adopted in conformance with
~:.~:IC.G~IE iaw apply uniformly to all new development on properties within the City that are
?vet xmisteri with tre Projec! Approvals. or apply uniformly to all new development on
y3oer.e: that are simi:arly situateo. whether by geographic location or other distinguishing
!-stances- The initial adjustment shall be effective as of four years after the Effective Date
;: :YE &yeemen: and shall be calculated based on the difference in the applicable index from
t~ %cieiicaI Fate at :he end of !he month following the third year after the Effective Date and :- r, ~.r-w~cai rate at the end of the month following the fourth year after the Effective Date. Ail
s,;:secLe?t increases sha!! be based on the annual change in the applicable index.
\c;-w!:stanoing the orec.edinc sentence, index adjustments to the fees set forth in Section 8.2
-
I
' I ' ZLJaseCiions 2. 3 and 4 shall be effective annually as set forth in the relevant ordinances and . 1
'esoiu!jons. Moreover, Landowner will be subject to the indexing called for above even if, ', '
azaiis' such indexing until payment of the fees as called for in this Agreement.
azdoivner nas filed i: complete application for a Vesting Tentative Map and will not vest
6.2. Permitted Uses. The permitted uses of the Property, the density and
si x5e. the maximum height and size of proposed buildings, provisions for reservation
2 3eo ca!!on of land for public purposes. location and maintenance of on-site and off$te
menrs locatior of public utilities and other terms and conditions of development
aoriiczcre to the Property, shall be those set forth in this Agreement, the Project Approvals and
2. . z*-eridmen!s to this Agreement or the Project Approvals. City acknowledges that the = ~C!ECI .koprova1~ proviae for ?he !and uses and approximate acreages for the Property as set
.:.+ I- Exhibit €?-<, and Exhibit 8-2.
I
6.3. Moratorium, Quotas. Restrictions or Other Growth Limitations.
ocw,ner and City intend that, except as otherwise expressly provided in this Agreement, this,
Lsree--efii shall vest the Project .Approvals against subsequent City resolutions, ordinances and
-vatv% approved by the City Council or the electorate that directly or indirectly limit the rate, ',
1s or sequencing of development. or prevent or conflict with the permitted uses, density ,
S-C 'r:e?sily of uses or me righr :o receive public services as set forth in the Project Approvals;
de? *?owever Landowner shali be subject to rules. regulations or policies adopted as a resuk
;: .:r.:a.-g~ ig federal or state iaw [as provided in Section 7.3) which are or have been adopted on
y~::~ ap~lled, City-wide or area-wide basis. in which case City shall treat Landowner in a
-I,- equitable and atoportionatt manne: with all properties. public and private, which are
,~. , .ci.ro .- - _,I 2~ !he changes in federai or state law
6.3.1 Allocations Under Citv Growth Manaaement Proqram
5?&- - Allocations Required Prior to Map Aooroval
S~STEC: witk the City s Growth Management Program. which shall apply to the Project,
p: as CtherWiSe provided herein no tentative map for any portion of the Property shall be
ere0 by such map. consistent with the Growth Management Ordinance (Ordinance
:~..:ec .;ntri such time as Landowner has obtained allocations for each residential unit within the
: xdified as Section 15.54 of the City of Lodi Municipal Code.
u--_ i Schedule of Allocation of Residential Units
-. -e 30 :owing scheduie o! residential unit allocations shall apply to the Project
(ii Initial Allocation
i
AS 31 the Effective Date of this Agreement, the following number of residential units shall be
.citrally allocated toJhe Project from the City's reserve of unused allocations ("Initial Allocation"):
215, Low Density Units ,
Excep: !or the requirement set forth in Section 6.3.l(a) above the Initial Allocation has been
3etem:ned to be exempl from and in compliance with the provisions of the Growth
Management Ordinance and Resolurions 91-!70 and 91-171 (timing and point system
recuirernents)
pJ Subsequent Annual Allocations:
L,S 3' rhe Effective Date of this Agreement, Landowner shall be entitled to apply for future
znvua, aiiocations in three-year increments, and on a rolling basis. Provided that Landowner
3!hewise complies witl; the City's Growth Management Program, Landowner shall be entitled to
ancua: aliocations se! forth in Exhibit E ("Annual Allocations"). If Landowner elects in any year to
-eoties: fewer allocations than provided for in Exhibit E or if the term of any allocation granted
exares aefore it is used as part of obtaining a subdivision map, Landowner shall be entitled to
-eceiw. upon submission of a complete growth management allocation application, additionai
a:icca:,cns after the eighth year of this Agreement and through the term of this Agreement
:-:c.drg any extension i'7erefo granted pursuant to Section 5.2. The total number of growth
twsagernent ailocations granted hereunder shall be limited to the number of residential units
a~;;ii.,ed as parl of the Project Approvals excluding any senior housing residential units. The
..SF i.: SUZP allocations sWl be restricted to the year for which such allocations were made,
'-61 #'e?bes: additional aiocations. over and above those set forth in Exhibit "E": and City may
Zix s Srowth Management Allocaiion Program. Resolutions 91-170 and 91-171. subject to
,.__ s:s:c~: with the Growth Management Ordinance. Notwithstanding the foregoing, Landowner
-~.-". z,o ,: s;sh zl!ocations II? !ts discretion. provided such additional allocations are consistent with
;.jC+omi cornmucity benefits andior exactions negotiated upon such a request.
-a-ocivner 1s no! required to apply fo: such allocations on an annual basis. Landowner may
-stsac comply with all development plan and related requirements under the Growth
*.'a-.agerierit Ordinance and Resolutions 01-170 and 91-171 every third year, at which time
,.= - __ .,c:.wie: - . may apply for allocations for the next three-year period. After the expiration of the
' whizti an Annuai Allocation was issued to Landowner, Landowner may submit a request
ssiied by the Ciry another Annuai Allocation. such that Landowner may maintain, on a
n$ 3a$4s a number c' allocations equal to three Annual Allocations. Except for aliowing the
;a?dr:,vner ?his flexibility in terns of the number of years for which Landowner may apply. all
2.. . -U~E~S 'cr Annuai Allocations must otherwise comply with the Growth Management Ordinance
.??i Resolctrons 91-:7C and 97--!71
-.*e rqxsment that Landowner apply for Annual Allocations does not alter the vested rights of
.-:c P:qect, specifically as to the General Plan and zoning designation of the Project.
ici Growth Management Ordinance in full force and effect: i
Excev %here otherwise specifically stated herein. nothing in this section 6.3.1 is intended to
--,adif\ ir ay way the City's Growth Management Program, including its exemptions under
Section *5 34 040 (e.~ for senior citizen housing).
Section 5 3 2 Future Growth Control OrdinanceslPolicies, Etc.
t.ai One of the specific purposes of this Agreement is to assure
:.eve cpei that during !he term of this Agreement no growth-management ordinance, measure,
'iq regulation or development moratorium of City adopted by the City Council or by vote of
:YF; eiecicrate after the Effective Dale of this Agreement will apply to the Property in such a
--!anre: SD as tc, the reduce the density of development . modify the permissible uses, or modify
tre Dnastng of the deveiownent as set forth in the Project Approvals.
.
("1 Therefore, the parlies hereto agree that, except as othetwise
expressly provided in the PrOJeCi Approvals Sections 6.1, 6.3.1 or 6.4 or other provision of this
+reernent which expressly authorize City to make such pertinent changes, no ordinance.
cc4c;. wie. regulation. decision or any other City action, or any initiative or referendum voted on
'27s 7' awelopmen:, construction and build out of the Project or limit the Project's ability to
'ES~:IE any other City service shall be applicable to any portion of the Project during the term of
~-:,L ,&gleemen1 whether such action IS by ordinance. enactment, resolution, approval, policy.
:he pmlic. which w~ulci be applicable to the Project and which would affect in any way the.
E -eguiation decision or other aciion of City or by public initiative or referendum.
:.- \-, i City, through the exercise of either its police power or its
wer @hether by direct City action or initiative or referendum. shall not establish, enact
my additional conditions. dedications, fees or other exactions. policies. standards,'
ztirs C' -ecJiations. which directly relate to the development of the Project except as provided in
<-?- I ,~nll -, . 5 - 5 3.1
,; -ake such cnaiges Nothing herein prohibits the Project from being subject to a (i) City-
:.WE Zc'c !sue. !iij :City-Wide special or general tax. or (iii) special assessment for the
se enaaed: Drovided that such tax. assessment or measure is City-wide in nature. does
::' c:sC-(Tinate against the ianc wI!hlr: !hE Project and does not distinguish between deveiopea
or 5.4 herein a: other provision of this Agreement which expressly allows
,~ ...., .. .i .,.~.~ d-,.c>n 31 mamienance of 2 City-wibe facility as may be voted on by the electorate or
:: .~-deueloped parceis~
idj This Agreemeni shall not be construed to limit the authority of City to
--arat xocessing fees for land use approvals, public facilities fees and building permits as they
a!e '0 plumbing, mechanicai. electric or fire code permits, or other similar permits and
ernen:s which are in force and effect on a city-wide basis at the time those permits are
a~mi!ed 'or ercept to i?e extent any such processing regulations would be inconsistent with this
A,jrermen:
\
!,ej Notwithstanding subdivision (b), the City may condition or deny a
?t;in;:. approval, extension, or entitlement if it determines any of the following:
(I) A failure to do SO would place the residents of the P\oject
or the immediate community. or both, in a condition dangerous to their
health or safety, or both.
(2) The condition or denial is required in order to comply with
state or federal law (see Section 7.3).
6.4. Additional Conditions
6.4.1. Timina of Dedications and Improvements of Parks
.ando;vne: agrees tc dedicate park land and complete construction of all the park
.-prcvements as described and set forth in the Project Approvals at its sole cost and expense.
-7~ lists of the parks and park improvements contemplated herein is set forth in Exhibit "1" and
Lana'owner and City agree that the provision of land and the construction of all park
nd installation .of equipment within the Project boundaries will satisfy Landowner's
t obligations as set forth in Lodi Municipal Code Chapter. Therefore, Landowner shall
...c! b~ obligared to pay any additional park fees and Landowner shall not be entitled to any
iim~i *or :ne vaiue of the improvements constructed or equipment installed except as provided
.ie:eii;eio"h.. The phasing of such improvements shall be in compliance with the Phasing
Ssieczle ;ncluoed in Exhibit I
t!: egatds to the park improvements listed in Exhibit J, prior to approval by the City of the firs?
:eniai:.,s subdivision map. Landowner shall prepare plans and specifications for all park
TDrcb.ements includec! in the Project Approvals and submit those plans and specifications to
i-.E ci:j review and approval which approval will not be unreasonably withheld provided that
,:..;E. pars and Specifications contain all park improvements listed in Exhibit J and satisfy all
a;piic.zbit condition? 2 approval Included in the Project Approvals. The Landowner shall
;:.:,sydc. the parks in compliance with the approved plans and specifications. The City will - spe,;' .-lprovemen!s wring construction, If improvements are of poor quality and/or do not
.--,?el :.x ,equirements 3f approved plans and specifications, the City will notify the Landowner
3nd the Laraowner, ar its sole cost. shall correct any errors or deficiencies. The
Z-:C~VTE' shall cowtract ?he paws to the satisfacfion of the City. which shall be defined as
.. ,tr,..pr, <, ,
:.Y.F .mce with !he aporoved plans and specifications.
&S pz'1 c: the part mprovements identified herein, Landowner is obligated to offer for
aedic2:ion to the City for a period of six years. five acres of land located at West of Lower
Sxrzr-!fntc Road, North of Vine Street and as depicted in the Westside Facilities Master Plan
2i'-*. ses including a possible acquatic center. Upon acceptance of the dedication by the
', ~.hcl. must occur within six years after the offer of dedication is made, the City shall, for
t c-eiwnc term d this Agreement and at the time of City approval of any development
grojeci located in the area south of West Vine Street, north of Highway 12, and west of North :
_we* Saramento Road ("Adjacent Property"), impose a requirement that the developer of the 'a
tojacrn: Parcel pay the the City an amount equal to the reasonable actual costs incurred for
Tarh lano and related construction costs by Landowner for parks developed within the Project in
SXC~SE 3! the minimum amount of park dedication required by the Lodi Muncipal Code and
5- :nr oeveloper of the "Adjaceni Parcel" uses to satisfy its park dedication requirements.
. -e CSZE agree that they shall calculate the any potential credit payable by the developer of
a~n! Property pursuar! 1c this paragraph prior to approval fo the first tentative
iofi map for ?he Properly Upon receip! of the that payment, City shall either pa) .that
ouw tc Landowner cr credit that amount against any outstanding fee payable by Landowner.
6.4.2. Rehabilitation of Existina Residential Unib
.~ncowner agrees :ha! within ten years of the Effective Date of this Agreement, Landowner
wall either rehabilitate or pay the costs (for a total value of $1,250.000) of rehabilitating up to a
,--~xirnurr 3f twenty-five (25) single-family or multi-family residential units within the area
r:.mgec by ?he Unior Pacific railroad tracks. Cherokee Lane, Kettleman Lane and Lockford
.%ee: Tc satisfy this obligatio?. Landowner may pay to rehabilitate residential units owned by
o:qerc 2: may purchase. rehabititare and sell or rent said residential units. The City shall have
-*e zh; :c approve the residentia; units selected for rehabilitation: said approval shall not be
.zreasoiably withheld by the City.
4-c -.lo:overnents required herein to facilitate rehabilitation of residential units may include
andscaping painting, roof repair, replacement of broken windows, sidewalk repairs, non-
siruc!~rai architectural improuerients. and demolition and reconstruction of residential units. ~- ' weik rjerformed pursuant to this section shall be done pursuant to properly issued buildins
::prrr?s 2s recuired by City of Lodi ordinances. As part of the annual review required pursuant
I :Sac:ioc 12,. Landowrer shali repor! or( work completed during the prior year towards meeting
:?E cuilgatrons set forlr. ifl this paragraph.
- :he even: that Landowner has no! satisfied this obligation within ten years from the Effective
>at€ ,andowners shali pay the City fifty thousand dollars ($50,000) per residential unit for each
,:.< -he *wenly-five (25) dnits thai have not been rehabilitated as set forth above. The funds paid
c:&i 3t pacec in a dedicated city fund to be used for housing rehabilitation grants or loans
iithi- :he xea specified hereinabove
.~
6.4.3. Payment for Promotion of Economic Development
,;trth.- :er ,:@) years c! the Effeaivf Date of this Agreement, Landowner shall pay the City Two
-+iiotec werry-Six Thousand L'S. dollars ($226,000) for use by the City for economic
csvr'q7ient actions including job creation. promoting retail sales andlor wine industry tourism
3. 2s determined by me City. The purpose of this payment is to assist the City in its effort to
-
x -I. - r, k,; ",* s balance berween employment and housing demands~
i
6.4.4 Pavment of Utilitv Exit Fees The Lodi Electric Utility is a
:.:y-ovined an0 operated utility that provides electrical utility services for residential, commercial
an3 inbustrid customers in Lodi. As the proposed project sites would be annexed to the City of
.."a ine -odl Electric Utility would provide electrical utility sewices to the project site. To the
L;X:W?, :hat :andowner is assessed "exit fees." also known as "Cost Responsibility Surcharges;:'
:,;. Pja-31!1.c Gas 5. Electric for its departing load, Landowner shall pay said fees when they.are
e ..anocwner may; at its option and at its own cost. request a Cost Responsibility Surcharge
.:re:rp:;on from the California Energy Commission for any qualified departing load pursuant to
Caiifornia Cooe of Regulations. Section 1395, et. seq. Forms for the exemption are
on-line at http://w.enerav.ca.qov/exit fees/docurnents/2004-02-
City makes no representation that Landowner is eligible for
c-x-n-gtinos pursuant to these regulations Landowner agrees to save? defend, indemnify and :zit: "sfviess City from any and all costs. jutlgments 01 awards owed to Pacific Gas & Electric
iy~rrt OJ~ O' oi related 10 City's Drovision of electrical utility services to the project site.
FSt ___ EXEMF AWL-PDF
6.4.5 Maintenance of Specified Public Improvements
r agrees to provide or pay for all park. median strip, and other landscaping,
ce and repairs for ~WG years for lands dedicated by the Landowner to the City and
Cepieo cy he City. :n the event :hat Landowner chooses to pay the City for the costs of
-a:r!er;a;.ce and reparr. the City shall provide an estimate of the annual costs and the
-i~~3vmer shali pay !ne full amount within thirty calendar days after the City by US. Mail or
ai transmits the estimate t@ the Landowner. If !he amount paid to the City exceeds the
;i amoiln! mcurrec by the City plus reasonable staff costs to administer the contract, the
wa , witkr a reasanable period of time, refund the difference to the Landowner.
6.4.6 Pavment for Fire Department Facilities. EauiDment and
Apparatus
- a&itior :t any appricable development impact for fire services, within ten years of the
EYecwe Sate c: this Agreemeni. Landowner shall pay Two Million Six Hundred Thousand U.S.
JC.;;~:: !$2,6DO,OOO) 4.0 ihe City for use to acquire additional facilities, equipment and apparatus
'3- the ;odl Fire Decartment.
.)~I-~GWIW ack?owledges that City will enier into contracts to acquire the facilities. equipment
a~c anparatus As consideratior, for City's agreement to authorize payment in installment
rsynents Landowner agrees to provide a letter of credii payable to the City, in a form
-easc.?ab!y acceptable to the City attorney^ in an amount sufficient to cover the amount due
-.$ie - -it\< agrees !hat Landowner may Substitute a letter of credit, in a form reasonably
.eitamf tc rhe City Atforney, for a lesser amount upon payment of any portion of the amount
.:Lr: -ie!eir Upon deiivery of such replacement letter of credit and its approval as to form by the
.., q . i-ttc-ney !he Ci!y wdl release and convey to Landowner the prior letter of credit.
r
6.4.7 Resewed.
6.4.8 Water Treatment andlor Percolation Cost Landowner shall, pay
2 tee based on the proportionate share of the costs of designing and constructing a'water
ireatment system and/or percolation system for treatment of water acquired by the City from the
Woodbridge Irrigation District. Landowner shall pay the fee as required under the fee program
tc Se development by the City, but in no event later than when water service connection for
eacn iesiaential. office and commercial unit is provided.
Wehin ten (10) years of the Effective
>ate a! this Agreement. Landowner shall obtain City approval for and install public art on the
Project The value of the public arl installed shall be equal to One Hundred Fifty Thousand U.S.
milar:. ,:%150.000) .inclusive of design and installation costs, which together shall not exceed
F!S.?OG The public an shall be installed in a place within the Project that is visible from the
c~blic rtght-of-way or from an area or areas that provides public access. Landowner shall
;wide maintenance 3f the pubiic art. Landowner shall be eligible to apply for City matching
I 3:mi fc; the public art up to a maximum amount of $40,000. The parties agree that any
,zatching grant provided.by the City shall be in addition to the 9150,000 contribution provided by
-andowner pursuant to ?he section and shall be subject to any and all conditions normally
inposed as part of the issuance of a grant by the City.
6.4.9 Public AIZ on Prom
6.4.10 Utility Line Extension City is preparing a policy pursuant to
IJ%CC property developed will pay the actual costs of capital improvements necessary to extend
;;:lity services to a development Landowner acknowledges that such an extension is
-ecBssary :G impienent the Project Approvals on the Properly. Landowner agrees to pay the
%, wrsuafli to the policy to be adopted by the City, the costs of the capital improvements
'.ecessary to extend utility services to the Property.
6.4.11 Improvements to be Desiqned and Constructed by
Lanoowner Within or Adjacent to the Proiect Boundaries
- :IL. :,o,ec! Approvals require the installallon of specrfied public and private mprovement5
..jnocwner shall as specified in the Project Approvals, either oesign. eqoineer and construct
.v,+ ((1 lowqg ,mprovenients 01 pzy trle City tne appropriate fee for the design, engineering an0
:I'nvr JR~O~ 01 saio merouements The obtigattons imposed on the Landowner herein shall be - aoc.:ton IC any other obligations set forlh in this Agreement
'~t evx! tqai any c' Deve,oper's mprowments encroach upon any city faciiities. propertv or
?)It: 2' wa) aevelcpe' sl-all indernnif) City against any and ah expeises including legal fees
.:-''co L'! 'hF Ciry :o secdre reolacernent facllities. properly or rights of way
6.4.11.1 Surface Water Faclities '.
-Z~SW:SSIOC Main (Froportionate share of the total design, engineering and construction
CCStS..
Sicraoe Tank (Propoitionate share of the total design, engineering an6 construction costs)
-
6.4.11.2 Water Supplv Facilities
z-1~ new water well tc cover proposed development within the Southwest Gateway and
!i€EtS;d& development areas. The well will be installed in the Southwest Gateway area at the
.pCation identified in the Project Approvals or approved by the City Engineer. This condition may
SE satisfied by the insialiaiion of the well pursuant the requjremen! set forth in Section 6.4.7.2 of
ire FCP Soc;thw&st Gateway Develoment Agreement provided that adequate flow capacity is
~'cU;ceC for the development authorized as part of the Westside and Southwest Gateway
-..sjec! kpprovais. The well shall be installed and operational on or before January 1, 2010 or
ea-iler :I Sthewise required by the Water Master Plan.
-. ,
6.4.11.3 Water Distribution Facilities
.d., waier pipes and related infrastructure in all streets.
A,-]! :ntF;rim or temporary facilities as determined necessary by the Public Works Director,
6.4.1 1.4 Sewer Collection Facilities
i~, selye; pipes and related infrastructure in all streets.
.A- _I iD:er,n-' or temporav facilities as determined necessary by the Public Works Director.
6.4.1 1.5 Recycled Water Facilities
,. ,-: -ecyded water pipes and relaled infrastructure for irrigations systems located in or on
s:.eets. DuDlic and private school sites (to property boundary line only), places of assembly
-cillo;r~1; tjvt not iimited lo religious fac
-eiide?tiai site$.
"P#,o~ ..F !G i; maximum of $50 000 tc partially fund the City of Lodi Recycled Water Master
;-. an stdy
es (to property bGUndary line Only), and high density
... .
6.4.11.6 Storm Drainane Facilities
~- ' c!c-mwaier pipes and related infrastructure in all streets and basins.
stc-mwater detention basins, control structures, pumping facilities and appurtenant piping
\
.*wq interim or temporary facilities .as determined necessary by !he Public Works Director.
;;eveloper will be entitled to apply for reimbursement under Lodi Municipal Code Chapter 16.40
for benefit received by undeveloped properties as a result of the construction of the
iliorovements required by this paragraph. Without limiting in any manner, the City Councilis
fJture exercise of its legislative discretion in the public hearing called for by Chapter 16.40, the
carties anticipate that the benefited properties will be those set forth in Exhibit J. The parties
iiso expressly acknowledge the final determination of benefited properties shall be determined
wjrsuznt to process set forth in Chapter 16.40.
I
6.4.11.7 Streets and Roads
Testor. and construci ali streets within the Project Boundary as set forth in the Project
Approvals
Reconstruc: Loai Avenue west of Lower Sacramento Road to western project boundary.
Reconstruct Tokay Ave.!Lower Sacramento Road intersection to accommodate wider street
sections.
Pay Fair Share Cost payments for trafk mitigation measures identified in the Lodi Annexation
E?vironrnental Impact Report that are not projects within the Streets & Roads Fee Program.
Ydith regard to the requirement to construct streets and roads, for sections of such streets and
Toads that are not wholly within the project site, necessary to satisfy the obligations set forth in
:his Agreement and the Project Approvals. Landowner will use its best efforts to acquire all
-'ecessarq' real oroperty interests including. but not limited to! (1) submitting formal offer letters
'.:: aii Dersons or entiiies who own or lease said property, (2) diligently pursuing implementation
c-' an:,! ourchase agreement, (3) paying all amounts required pursuant to the purchase
agreement n a timely manner consistent with the terms of the purchase agreement and will
'-ET Zonstruct the sireets or roads in compliance with the Project Approvals and any
Srzse3dent subdivisions maps. In the event Landowner is not able after its best efforts to
xquire any necessary property. City and Landowner agree that City will consider all actions
..t-essar). !o !orm ar assessment district to provide the funds necessary for the City to acquire
-#tcessary property ncluding through eminent domain as necessary, and Landowner
;$rees tkat upon the Cily complying with all requirements for consideration of formation of
;;,ssess~,en: district. Landowner shall. for all property within the proposed district that it owns or
:~~sf;-sses the legai autnority to vote on behalf of% vote in favor of formation of the assessmenl
::!strIc: i-ie parties agree that items :o be inciuded within the costs to be funded by the
~SSFFST~C: cisirict shail include. but not be limited to all costs, including attorneys fees
.-ecessa-y tc acqGire the necessary property interests, all design and engineering costs and all
2o-lst:3ctlons costs.
Seve,oper will be entitled tc apply for reimbursement under Lodi Municipal Code Chapter 16.4G
4c' benefit received by mdeveloped properties as a result of the construction of the
:?-,3rcvements requirec by this paragraph. Vi'iihout limiting in any manner: the City Council's
. 'Ls.A,c ...., exercise of its iegslative discretion in the public hearing called for by Chapter 16.40. th&
%,:;.;c.+.t>
11 cy:,,1n 4 7 (>, y'.-
' ' paflies anticipate that the benefited properties will be those set forth in Exhibit I<. The parties
also expressly acknowledge the final determination of benefited properties shall be determined
pursuant to process set forth in Chapter 16.4C.
.
'*
6.4.12 Hutchins Street Square Endowment 'Within ten (10) years ofthe
t*ec:!ve Date of this Agreement. Landowner shall pay the City Three Hundred Thousand U.S.
3oiiars ($300 000) as an endowment for the maintenance and operations of costs of Hutchins
Sireel Square
6.4.13 Agreement with Citizens for Open Government Landowner shall
:amp;;q with the terms of the Agreement to Amend Westside Development Agreement dated
3ecenlber 4. 2006 by and between the City. Citizens for Open Government and Landowner, a
cozy .r;f whch is attached hereto as Exhibit i and incorporated herein by reference.
6.5 Annexation
The ability tc proceed with development of the Property pursuant tothe Project
Approvais shall be contingent upon the annexation of the Property into the City. Pending such :
annexation. Landowner may, at its own risk, process tentative parcel maps and tentative
sl;od:vision maps and improvement or construction plans and City may conditionally approve '
sjch :enlarive maps andlor improvement plans~ in accordance with the Entitlements. provided
.y mail not approve any final parcel map or final subdivision map for recordation nor approve
.-,Y issuance of any grading permit for grading any portion of the Property or building permit for
~~ ..
s:w!ure within the Property prior to the annexation of the Property to the City. - .-~ry shall use '1s best efforts and due diligence to initiate such annexation process,
:cta!r. the necessary approvals and consummate the annexation of the Property into the City,
,-:iu*.ng entering intc. any annexation agreement that may be required in relation thereto,
~;bjer! :c: tSe City's review and approval of the terms thereof. Landowner shall be responsible
'.rr tre G,OS?S reasonabiy and directly incurred by the City to initiate. process and consummate
a-rnexaticl: the payment of which shall be due in advance, based on the City's estimate of
xs? anc thereafter as and when the City provides an invoice(s) for additional costs
?W:BC by Ci!y therefore in excess of such estimate.
7 Applicable Rules, Regulations. Fees and Official Policies
7.1. Rules Reaardina Permitted Uses Except as provided in this
.Agreemen:. the City's ordinances. resolutions, rules: regulations and official policies governing
'Y oerrnitted uses Oi the Property, the density and intensity of use, the rate timing and
sequencing of development, the maximum height and size of proposed buildings, and
;-OVZIO~S !or reservation and dedication of land shall be those in force on the Effective Date of
Erceot as provided in Section 8.2, this Agreement does not vest Landowner's
.- 5~jL5G.f
;greernen:
.. '.?,.I. I :rs,0,1 i 2.
\
qn!s :i pay development impact .fees. exactions and dedications, processing fees, inspection
fees ,-Ian checking fees or charges.
7.2. Rules Reaardina Oesian and Construction. The Project has pen
;esigneo as a Planned Development pursuant to Chapter 17.33 of the Lodi Municipal Code.
9esigr improvements and construction standards shall be as set forth in Project Approvals
..-;:w!og the Development Plan, and shall be vested for the term of this Agreement. Unless
ei xdinances, resolutions. rules. regulations and official policies governing design,
~enert and consiwuction standards and specifications applicable to the Project and to
;;>jiic :mprovements Ic. be constructed by the Landowner shall be those in force and effect at
+?E rirLe the applicable permit approval is granted.
,.^ ~ , ,trwse provicied within the Development Plan or expressly provided in this Agreement, all
7.3. Chanqes in State or Federal Law. This Agreement shall not preclude
?ie application IC deveiopment of the Property of changes in City laws, regulations, plans or
miicies !he terms of which are specifically mandated and required by changes in State or
cederai laws or regulations. These changes may include any increase in an existing fee or
!- 3osilioi of a new fee that are necessary for the City or Landowner to comply with changes in
State 3’ Federal law6 cr’regulations, including bu! not limited to sewer. water and storrnwater
zws 9’ regulations
7.4. Uniform Codes Applicable. Unless otherwise expressly provided in this
;;reemem the Projeci shall be constructed in accordance with the provisions of the Uniform
E-iildivg, Mechanical. Plumbing, Electrical and Fire Codes, City standard construction
soecifca?ians arld Trile 24 of the California Code of Regulations, relating to Building Standards,
.. effeci at the time of approval of the appropriate building, grading, encroachment or other
ior permits for the Project If no permits are required for infrastructure improvements.
rovements w;14 be constructed in accordance with the provisions of the Uniform
. idirg Mecnanicai. Plumbing, Electricai and Fire Codes. City standard construction
--.~ ,.,‘:,ations ”
I,
and Title 24 of the California Code of Regulations, relating to Building Standards,
I: dYett st the siart ci construction of such infrastructure.
8, Existinq Fees, Newlv Enacted Fees, Dedications. Assessments and Taxes
8.1. Processing Fees and Charqes. Landowner shall pay those processing.
‘:spen.c.r. an@ plari check fees and charges required by City under then current regulations for
‘ess~n~ applications and requests for permits, approvals and other actions, and monitoring
~!.ance with any permits issued or approvals granted or the performance of any conditions
:esnect thereto 31 any performance required of Landowner hereunder.
8.2. Existing Fees. Exactions and Dedications Landowner shall be
aim ic provide all cledications and exactions and pay all types of fees as required for the
‘:.ces 3’ 3eveloprnent authorized b) the Project Approvals as of the Effective Date of this
:-,:ree’%ni V,’it?, regaros any fees applicable to residential development. the Panies agree that
.! .
\
the fees shall be payable at the'earliest time authorized pursuant to the Government Code
Section 66007 as 8 exists as of the Effective Date of this Agreement. The specific categories of
fees payabie are listed below. The dedication and exaction obligations and fee amounts
zayable shall be those obligations and fee amounts applicable (indexed as set ,forth
nereinbelow) as of the date that the Landowner's application for the applicable vesting tentative
~ap '5 deemed complete. For any development for which the Landowner has not submifled a
#esiing tentative map, the dedication and exaction obligations and fee amounts payable shall be
:!-.me obligations and fee amounts applicable (indexed as set forth hereinbelow) as of the date
:re tical discretionary approval for that development is granted by the City.
Stanoard City Development Impact Fees Payable by the Landowner include:
Development Impact Fees (Lodi Municipal Code Chapter 15.64)
San Joaquin County Regional Transportation Impact Fee (Lodi Municipal Code
Chapter 15.65
4. San Joaquin County Multi-Species Habitat Conservation and Open Space
L
r
~ County Facilities Fee (Lodi Municipal Code Chapter 15.66)
Deveioprnent Fee (Lodi Municipal Code Chapter 15.68)
kv existing fees may be increased during the term of this Agreement provided that such
:creases are limited ic annual indexing (i.e. per the Engineering News Record Index, or the
I)?!, cx other index utilized by the City) and as provided in current fee ordinances. The initial
aciustment shall be effective as of four years afler the Effective Date of the Agreement and shall
3e ca:cuiated based or. the difference in the applicable index from the numerical rate at the end
L' :he month following !he third year aiter the Effective Date and the numerical rate at the end of
'.% i.onlh following the fourth year after the Effective Date. All subsequent increases shall be
fiasec on the annual chanae in the applicable index. Notwithstanding the preceding sentence?
,-,$er aojustments lo Ihe fees set forth in subsections 2: 3 and 4 of this section shall be effective
3-,o;a!i> as se! forth ir the relevant ordinances and resolutions. Moreover, Landowner will be
ajez :c :he ;ndexinc =lied for above even if Landowner has fil& a complete application for a
iest '6 Tentative Map and 'will nci vest against such indexing until payment of the fees as
,::aliec for IP this Agreement.
8.3. New Development Impact Fees. Exactions and Dedications.
.af,cowner agrees !c the pay the development fees identified in Section 6.1, including
s?ecc!tcal!y subsections E..; .1 through 6.t.4. of this Agreement. With regards any fees applicabie
:c ies!denllal development. the Parties agree that the fees shall be payable at the earliest time
;ithsr:zed pursuant tc rhe Government Code Section 66007 as it exists as of the Effective Date
2 this Agreement
ZXIXD~ as expressly p:ovided herein, Landcwner shall not be obligated to pay or provide any
seve;opment impact fees. connection or mitigation fees. or exactions adopted by City after the
5Yect.ve Date of this Agreement. Notwithstanding this limitation, Landowner may at its sole
-
3 screiicr! elec; to pay cr provide any fee or exaction adopted after the Effective Date of this, (,
Agreement
8.4. Fee Reductions To the extent that any fees payable pursuant to the
:-qulrements 01 Sections E.1 are reduced after the operative date for determining the fee has
.::curred the Landowner shall pay the reduced fee amount.
9. Community Facilities District. Formation of a community Facilities Dktrict
for PubllC Improvements and Services.
9.1. Inclusion in a Community Facilities District. Landowner agrees to ,
3pe:aie 10 the formation of 8 Community Facilities District pursuant to Government Code
s:ec?io? 53522 ei seq. :c be formed by the City. The boundaries of the area of Community
::aciir:res gistrict shall be contiguous with the boundaries of the Property excluding the portion of
%ar.~ z~ned for commercial or office development. Landowner agrees not to protest said district
:;--:zi!on and agrees ic vote in favor of levying a special ?ax on the Property in an amount not)
: kx.:eec $600 per yes! per singie family attached or detached residential dwelling unit and
="!j :;el year for eack attached multi-family rental wit as adjusted herein. The special tax
.-a 3e .ritiateb for all "esidential dwelling units for which a building permit is issued, and shall.
.'..'?~.!Y.m.,. ~,
~~~c;~mer acknowledges that ?he 2007-2006 special tax rate for the units in the Project will no?
r.).3ee3 SGCS pel single tamily attached or detached dwelling unit and $175 per year for each
ci'ec nultl-family rintai unit and that the special tax shall increase each year by 2% in
P vote bv ..andowner against the levying of the special tax or a vote to repeal or
,E !c be leviec oegtnning the subsequent fiscal year after the building permit is issued.
il.
?!ie special tax shall constitute an event of default under this Agreement.
9,2. Use of Community Facilities District Revenues Landowner and City
%a: rhe mp:ove!nents and services fha! may be provided with the special tax levied
..r::,,mt :c Section E < may be used for the following improvements and services:
i; ,F-olice proiection and criminal justice services:
i Recreation and library program services;
i Operation and maintenance of museums and cultural facilities;
e Matnfevance of park. parkway? and open space areas dedicated to the
c Fiood and storm protection services.
c 9 Improvement. rehabilitation or maintenance of any reai or personal
property that has been contaminated by hazardous substances;
F Purchase. constructicn. expansion. improvement. or rehabilitation or any
reai or tangible property with useful life of more than five years; and,
&sign, engineeringl acquisition or construction of public facilities wah a
useful life of more that five years including:
- " F 're protection. suppressicn, paramedic and ambulance services;
53,
dl>&(
11 I crsit~? 4 I. '9 '201 *' ..
7
i Libraries.
5 Childcare facilities,
4
5 Government facililies.
Local park recreation, parkway and open-space facilities,
Water transmission and distribution facilities, natural gas, telephpne,
energy and cable television lines, and
Landowner and City agree that Property does not presently receive any of these services from
!he CI?~ and that all of these services are new services.
9.3. Community Facilities District for Residential Propertv - Financing. - addition to the funding provided as part of the Community Facilities District identified in
Sect!or 9.1.. City acknowledges that Landowner may desire to finance the acquisition or
:onstruction of a portion of the improvements described in Section 8.2 through the Community
Facilities District. The .costs associated with the items identied in Section 8.2 shall be in
aodition to the annual cast imposed 10 comply with Section 9.1. The following provisions shall
ac.p~y lo any to the exlerlt that the Landowner desires to fund any of the improvements set forth
q Section 8.2 through !ne Community Facilities District:
9.3.1 Issuance of Bonds. City and Landowner agree that. with
the consent of Landowner, and to the extent permitted by
law, City and Landowner shall use their best efforts to
cause bonds to be issued in amounts sufficient to achieve
the purposes of this Section.
9.3.2
5.3.3
9.3.4
Payment Prior to Issuance of Bonds. Nothing in this
Agreement shall be construed to preclude the payment by
an owner of any of the parcels to be included within the
CFD of a cash amount equivalent to its proportionate share
of costs for the improvements identified in Section 8.2, or
any porlion thereof. prior to the issuance of bonds.
Private Financing. Nothing in this Agreement shall be
construed to limit Landowner's option to install 'the
improvements through the use of private financing.
Acquisition and Pavment. City agrees that it shall use its
best efforts to allow and faditate monthly acquisition of
completed improvements or completed portions thereof,
and monthly payment of appropriate amounts for such
improvements to the person or entity constructing
improvements or portions thereof, provitied City shall only
be obligated to use CFD bond or tax proceeds for such
acquisitions.
it Processinq of Subsequent Development Applications and Building Permits . '
-2,~ : :: ,anocwiF' 5 ccmpance witb the C !y s apFlication requirements including.
.-.:' .,i'er IS Tiel ,r nriaulr mcer in€ terms and conditiocs of this Agreement, tne C:ty shall . :c:s -anocu-&r s 5-DseqdErr oevelopment applications and Dulloing permit requests in an
aoditmr C.Q agrees tPat upon payment of any required City fees or
.'I : I., w, 3esfcr?re GI re16ir' as necessary appropriate personnel ano consultants to
.:EL F ..arocwner E xueiopmrnl applications and b.!ilotng Dermit requests City approvals in
..-. . .. . . x, SL'~I:ISC 9: 3' reouireo mforrnation and payment of appropriare fees and assuming
-- 9,~;: . cds rcriner
:. e.xc.ec~!.c~s niannei
i?. Reserved
j t Amendment or Cancellation
11 .I. Modification Because of Conflict with State or Federal Laws. In the
e.en: !hat State or Federal laws or regulations enacted after the Effective Date of this,
.Ljreement preveni or preclude compliance with one or more provisions of this Agreement or
,esuire changes in plans. maps or permits approved by the City, the parties shall meet and:
nfe: ir good faith in a reasonable attempt to modify this Agreement to comply with such
.;oers 3r State law or regulation Any such amendment or suspension of the Agreement shall'
2: aF:ycved by ?he Civ:, Council in accordance with the Municipal Code and this Agreement.
17.2. Amendment by Mutual Consent. This Agreement may be amended in
'a>-- time tc tire by mutual consent of the parties hereto and in accordance with the .L
t-~c.ed:,:es oi State :aw and the Municipal Code,
i 1.3. Insubstantial Amendments. Notwithstanding the provisions of the
:., ec.e.-ing Section I' 2 any amendments to this Agreement which do not relate to (a) the term
:.. !+I€ ,Agreement as provided ir Section 5.2: (b! the permitted uses of the Property as provided
+C(!GY 6.2 and (C~j probisions for reservation or dedication of land: (d) the location and
3,n.mance of on-stt& and ofl-site improvements: (ej the density or intensity of use of the
.;: the :!iaxrmum height or size of proposed buildings or (9) monetary contributions by
're: as provrdec in this Agreement shall not. except to the extent otherwise required by
r.qr:re notice sr cdblic hearing before either the Planning Commission or the City Council
'
::rl
CIE tk~ ~arties ma): execute an amendment beretc.
11.4. Amendment of Project Approvab. Any amendment of Project
--,3p::,~ats reiaiing 10. !a) the permitted use of the Property: (b) provision for reservation or
ceoication of iand; ic; the aensity or intensity of USE of the Project; (d) the maximum heigM or
i.ze c.: xoposed buildin_os: (ej monetary contributions by the Landowner; (f) the locaiion and
.- ar;e?ance oi on-site and off-site improvements: or (g) any other issue or subject not identified
- .:: 5; kqeernent Suck amendment shall be limited to those provisions of this Agreement,
_.j ,, -- . Psubstantiai ac?endment" in Section 11 .S o! this Agreement. shall require an amendment
..
', . ,-,<fa$; .. i ,;.i9 '(Ii?
&cp are implicated by the amendment of the Project Approval. Any other amendment of the
?.ojec Approval(s) shall not require amendment of this Agreement unless the amendment of .,
!re Project kpprovaljs) relates specifically to some provision of this Agreement.
11.5. Cancellation by Mutual Consent. Except as otherwise perm/tted
+=ci- ms Agreement niav be canceled in whole or in part only by the mutual consent of the
;.y:,es 3r their SUCC~SSO~S in interest. in accordance wlth the provisions of the Municipal Code.
$~- .: fees oatd ptirsuan: 10 this Agreement prior to the date of cancellation shall be retained by
12, Term of Proieci Aporovals. Pursuant to California Government Code Section
6645;.6i,a), the term o! any parcel map or tenfative subdivision map shall automatically be
eximaed for the term of this Agreement.
13. Annual Review.
13.1. Review Date, The annual review date for this Agreement shall occur
6 :ne!- dhin the same nionth each year as the month in which the Agreement is executed or the
g-,nntF mmediateiy thereafter.
13.2. Initiation of Review. The City's Planning Director shall initiate the,
2--;Jz, review by givin: to Landowner written notice that the City intends to undertake such
'e,'+ev; Within thiny :30) days of City's notice, Landowner shall provide evidence to the
a:anriq2 Director to demonstrate good faith compliance with the Development Agreement. The
;<'be'- c' proof by stibstantial evidence of compliance, is upon the Landowner. The City's
'21 IC. timely initiate !he annual review is not deemed to be a waiver of the right to do so at a
,;t.et. cafe, accordingiy. is not deemed to be in compliance with the Agreement by
i .:.,e c' such failure to rimely initlate review .
13.3. Staft Reports. City shall deposit in the mail to Landowner a copy of all
?:ad< reports, and relate0 Exhibits. concerning contract performance at least three (3) days prior
'c .mi acwal review
13.4. Costs reasonably incurred by the City in connection with the
be paid by Landowner in accordance with the City's schedule of fees and dh yvlc;~
1s -aies in effect at :he time of review
13.5. Non-compliance with Aweement; Hearing. If the Planning Director
:o:e:m-ine~, on the bask of substantial evidence, that Landowner has not complied in good faith
i; ic ~PE terms and conditions of the Agreement during the period under review, the City Council.
..ty -eceipt ot any reporl or recommendation from the Planning Commission, may initiate
., '::ceedings to modify or terminate the Agreement. at which time an administrative hearing shall
::c ccidilcted. in acc.ordance with the procedures of State law. As part of that final
~t;:ermination, the City Council may impose conditions that it considers necessary and
appropriate to protect the interest of the City.
13.6. Aapeal of Determination. The decision of the City Council as to
..ancowners compliance shall be final, and any Court action or proceeding to attack, review, set
aside vora or annul any decision of the determination by the Councii shall be commenced within
:3C days of the final decision by the City Council.
14. Default, Subject to any applicable extension of time, failure by any party to
slibetantially perform any term or provision of this Agreement required to be performed by such
.-any Shal! ccnstitute i: material event of default ("Event of Default"). For purposes of this
Acreenlent a party claiming another party is in default shall be referred to as the "Complaining ,
-an} asd the party aileged to be in default shall be referred to as the "Party in Default." A
I smpiainrng Party shal! not exercise any of its remedies as the result of such Event of Default
-;:iess SJC~; Complaining Party first gives notice to the Party in Default as provided in Section
, an6 the Party ir Default fails to cure such Event of Default within the applicable cure
,-
e,, :
'3E'iOC.
14.1. Procedure Reaardlna Defaults
14.1.1. - Notice. The Complaining Party shall give written notice of
!i3 the Party in Default, specifying the default complained of by the Complaining Party.
3ielar is giving such nolice shall not constitute a waiver of any default nor shall it change the
2' default
14.1.2. - Cure. The Party in Default shall diligently endeavor to
'e. coirect or remedy the matter complained of. provided such cure, correction or remedy
s-ai! DE completed withrn the applicable time period set forth herein after receipt of Written
-icessa:y to correct the matter).
.*.&,. -. re ,a: such additional time as may be deemed by the complaining Party to be reasonably
14.1.3. Failure to Assert Any failures or delays by a
,?,.imp,aining Party IC asserting any of its rights and remedies as to any default shall not operate
is a w=ive: of any default or of any such rights or remedies. Delays by a complaining Pany in 55seflino any of it$ riahts and remedies shall not deprive the Complaining Party of its right ta
-sii:~;e'and maintain any actions or proceedings, which it may deem necessary PfOteCt.
SSSK .:! enforce any such rights w remedies.
14.1.4. Notice of Default. If an Event of Default occurs prior to
5zercising any remedies, the Complaining Party shall give the Party in Default written notice of
ch gefautt. If the default is reasonably capable of being cured within thirty (30) days, the Party
3etauit shall have such period to effect a cure prior to exercise of remedies by the
inmaining Party. If ?he nature of the alleged default is such that it cannot. practicably be
'Wj day period, the cure shall be deemed to have occurred within such
j '7- .:.
. .. .ec wi!nin sucn
4 .y;+[)(.'T .. ,... ,. ,!I ,
/30) dav period if: (a) the cure shall be commenced at the earliest practicable date
;ci&mg rece.ipt of the notice; fb) the cure is diligently prosecuted to COmpletiOn at all times,
*?:ereafter- ~>c) a? the eadiest .practicable date (in no event later than thirty (30) days after the
:.d-lqs party's receipt of the notice), the curing party provides written notice to the other party
i;*! ?he cure cannot practicably be completed within such thirty (30) day period; and (d) the cure
.r_ 3cr.pieted at the earliest practicable date. In no event shall Complaining Party be precluded
zefaL'1: IS given
.,I ".: . e:*ersising remedies if a default is not cured within ninety (90) days after the first notice of
14.1.5. Leaal Proceedinas. Subject to the foregoing, if the Party
.' Waud fails 10 cure a default in accordance with the foregoing. the Complaining Party. at its
:p!ioi*, may institute legai proceedings pursuant to this Agreement or, in the event of a material
::efauir. terminate this Agreement, Upon the occurrence of an Event of Default, the parties may
:-,istie all other remedies at law or in equity, which are not otherwise provided for or prohibited
+ 's ,Agreement, or in the City's regulations if any governing development agreements,
14.1.6. Effect of Termination. If this Agreement is terminated
'r mwng any Event of Default of Landowner or for any other reason, such termination shall not
iiieit !he validity of any building or improvement within the Property which is completed as of
. ., .. t - date of terminatior
c.:rsLan? ic a building permit issued by the City. Furthermore, no termination of this Agreement
?+a(! :.:ever? Landowner from completing and occupying any building or other improvement
.. i -. .-bs:.zed pursuant tc. i; valid building permit previously issued by the City that is under
,::?si-x?iop a! the ?ime of termination. provided that any such building or improvement is
,-tcleieo In accordan:e wrth said building permit in effect at the time of such termination.
sly including the remedy of specific performance of this Agreement.
provided ihat such building or improvement has been constructed'
35. Estoppel Certificate. Either Party may, at any time, and from time to time,
x.,es;; written notice from the o!her Party requesting such Party to certify in writing that, (a) this
ieeqw?! is in full force and effect and a binding obligation of the Parties; (b) this Agreement
seen amendeo of modified either orally or in writing, or if so amended, identifying the
e-2wenls. and [c) IC the knowledge of the certifying Party the requesting Party is not in
_I aL: 14- !he performance of its obligations under this Agreement, or if in default. to describe
->?re. .?e nature anc amount of any such defaults. A Party receiving a request hereunder
:-a!; 5xecjte and returr: such certificate within thirty (30:i days following the receipt thereof, or
. . :r r-gc, per!od as may reasonably be agree0 to by the Parties. City Manager of City shall be
2L:tc. zeo :o execure any certificate requested by Landowner. Should the party receiving the
::c:.xs: n;i execute azd return sucn certificate within ths applicable period, this shall not be
emec 10 oe a defaull
? 6. Mortqaqee Protection: Cenain Ricihts of Cure
16.1. Morlgaqee Protection. This Agreement shall be superior and senior to -- ,+ ,;er siaceo upon the Property, or any portion thereof afler the date of recording this
4 - i;
\
,&oreemen:, including the lien for any deed of trust or mortgage ("Mortgage"). Notwithstanding
me foregoing no breach hereof shall defeat, render invalid, diminish or impair the lien of any
lvlortgage made in good faith and for value, but all the terms and conditions contained in this
,+,creernent shall be binding upon anc effective against any person or entity, including any deed
9 :rus: beneficiary or mortgagee ("Mortgagee") who acquires title to the Property, or any Gortiori
:-ere?' by foreclosure. trustee's sale, deed in lieu of foreclosure. or otherwise.
16.2. Mortaapee Not Obligated. Notwithstanding the provisions of Section
amwe no Mortgagee shall have any obligation or duty under this Agreement, before or
afier 'oreclosure or a creed in lieu of !oreclosure. to construct or complete the construction of
yxo,:ernents. or to sdarantee such construction of improvements, or to guarantee such
::3?S?JCt!OC or completion or tc pay perform or provide any fee. dedication. improvements or
me" exaction or imposition; provided, however. that a Mortgagee shall not be entitled to devote
?e Fwperty tc any JS~S or to construct any improvements thereon, authorized by the Project
:,DDICI~~S or by this Agreemem. unless Mortgagee agrees to and does construct or complete
:vt. cinstruciion of improvements. or guarantees such construction of improvements, or pays.
s. ar provides eny fee. dedication. improvements or other exaction or imposition as
'.quire0 oy the Project Approvals.
,~ .$ ,
16.3. Notice of Defauk to Mortgaqee and Extension of Riqht to Cure. If
3, ,eceives notice from a Mcrtqaoee reauestino a copy of any notice of default aiven
-a&w,vner hereunder and specifyinothe address for service thereof, then City shall deliver to
iich Mortgagee, concurrently with service thereon to Landowner, any notice given to
.~asffowner wilt. respec? to any claim by City that Landowner has committed an Event of Default
ExP Mo-tgagee shall have the right during the same period available to Landowner to cure 0:
e:?~; or to commence to cure or remedy the Event of Gefault claimed set forth in the City's
- ,-.;cE -.,
.:. x: -s:e than an additional stxty (60) days upon request of Landowner or a Mortgagee.
Xy, through its City Manager. may extend the cure period provided in Section 15.1.2
$7. Severabiiity. Except as set forth herein, if any term, covenant or condition of
5 Agreement or the application thereof to any person. entity or circumstance shall. to any
:X~C. be invalid or menforceable. the remainder of this Agreement, or the application of such
:ovenant or Condition 10 persons. entities or circumstances other than those as to which it
i -E.C ?valid or unecforceable. shall not be affected thereby and each term, covenant or
WI: t" cl this Agreement shal! be valid and be enforced lo the fullest extent permitted by law;
web bowever if an'j prcvislon of this Agreement is determined to be invalid or
.-~.n~::c.ea~le and the effect thereof is to deprive a Party hereto of an essential benefit of its
icreunder, !her? such Party so deprived shall have the OptlOR fo terminate this entire
.CI_^ . .
:a:+
Apreement from and after such determination
48. Apt3licable Law This Agreement shall be construed and enforced in
Coroance witk, the laws of the State of California.
is. Attorneys' Fees and costs in Leqal Actions Bv Patties to the Agreement. :
~-IC;UIC anv leoal aciion be brouaht bv either Party for breach of this Agreement or to enforce -; . -I - .. .
2'~: F'r;visionc herein, the preiailini party to such action shall be entitled to reasonable
z.::.-P;,s: fees court costs. and such other costs as may be fixed by the Court.
20 Attornevs' Fees and Costs in Leaal Actions By Third Parties to the
Agreement and Continued Permit Processinq. If any person or entity not a party to this
As-eevent iniiiaies at? acticn at law or in equity to challenge the validity of any provision of this
L,q-ee--:en! or the Projec! Approvals, ihe parties shall cooperate and appear in defending.buch
oi, ^r-.l.r ~.
cr .-maowner shall reimburse City on an equal basis for all reasonable courl costs and
.neVs fees expended by City in defense of any such action or other proceeding and shall
:s., e-: sticmeys fees and costs lhai may be awarded to the third party or parties. The City
'?a: ?n ine ever? an action ai law or in equity to challenge the validity of the Project
2,s c filed by a tbwd part\ other than by a state or federal agency, the City will continue
ESS irnd approve permit a.pplications tnat are consistent with and comply with the Project
enjoim further processino of permit applications and issuance of;
-andowner shall bear its own costs of defense as a real party in interest in any such
::-- _. .ci-?.c, cniess a
2'1, Transfers and Assiqnments. From and after recordation of this Agreement,
as !ie Property Landowne! shall have the full right to assign this Agreement as to the
c'i any porliop thereof, .n connection with any sale, transfer or conveyance thereof,
tie express written assignment by Landowner and assumption by the assignee of
;aimen! in the form attached hereto as Exhibit G, and the conveyance of Landowner's
:he Foperly :-elate0 thereto, Landowner shall be released from any further liability or
nereunder reiated lo tbe portion of the Property sc conveyed and the assignee shall
c. to DE the "Landownei " with all rights and obligations related thereto, with respect to
qed 3roper;j; Prior ic recordation of this Agreement. any proposed assignment of
-xct sy Landowner snali be subject to the prior written consent of the City Manager
f !he City and the form of such assignment shall be subject to the approval of the City
E,, rieither of which shall be unreasonably withhelc!
.
22. Aqreernent Runs with the Land. Except as otherwise provided for in Section
;-. T :?i: .4greemen!, all of the provisions. rights. terms, covenants, and obligations contained in
-: ;+$:eemeqt shall be binding upon the parties and their respective heirs, successors and
:.$sjg,xes vqxesentatives. lessees and all other persons acquiring the Property. or any portion
an': interesl i9ereir. whether by operation of law oi~ in any manner whatsoever. All of
s 07s 04 tniz Agreement shalt be enforceable as equirable servitude and shall constitute
.:,.ecafi?s -unninp wit.. the lanc pursuant lo applicable laws. including, but not limited to.
468 of the Civll Code of the State of California. Each covenant to do, or refrain from
,sc.me act on the Property hereunder. or with respeci to any owned property; (a) is for the
?'.;-. cf sdcr properties and is a burden upon such properties: (b) runs with such properties;
c binding upor each parly and each successive owner during its ownership of such ..
\
crooerties or any porfion thereof, and shall be a benefit to and a burden upon each party and its
:~pe!?y hereunder and each other person succeeding to an interest in such properties.
23.
sank.-uptcy
Bankruptcy. The obligations of this Agreement shall not be dischargeable in
24. Indemnifmtion. Landowner agrees to indemnify, defend and hold harmless
anc its elected and appcjlnted councils. boards. commissions, officers, agents, employees.
and :epresentatives from any and ali claims, costs (including legal fees and costs) and liability
‘0: t-: agy personal inwry or properly damage which may arise directly or indirectly as a resu!t
,:i ary actions of inactions by the Landowner. or any actions or inactions of Landowner’s
xntractors, subcontractors. agents. or employees in connection with the construction,
mxcuernent, operatior or maintenance of the Property and the Project, provided that
.a~dovmer shall have no indemnification obligation with respect to the gross negligence or
;Y,:lfd: .nisconduct of City. its contractors, subcontractors, agents or employees or with respect to
:-E -,ainzenance. use or condition of any improvement afler the time it has been dedicated to
zr.2 accepted by the City or another public entity (except as provided in an improvement
sc;ie~“.e?t or maintenance bond) and (2) any additional mitigation required. including but not
ilec :c payment of ar-y mitigation fees that may be imposed, as a result of a lawsuit filed by a
T-;.c ;any challengicg ar seeking to invalidate the Project Approvals.
25. insurance
25.1. Public Liability and Propertv Damaae Insurance. At all times that
.-bno~l~cer IS constructing any improvements that will become public improvements, Landowner
sriiii vaintaip in effect a policy of comprehensive general liability insurance with a
re--.acc”rience combined single limi: of not less than two million !S2.000,000) dollars an0 a
3educfib:e sf not more than fifty thousand (S50,OOO) dollars per claim. The policy so maintained
:: .. la?downer shall name the City as an additional insured and shall include either a severability
c’ ::terest clause or cross-liability endorsement,
25.2. Workers’ Compensation Insurance. At all times that Landowner is
c-’:stiilct!nS any improvements that will become public improvements, Landowner shal!
::iainia;n Workers’ Cornpensation insurance for all persons employed by Landowner for work at
f P’?ec\ $re, LandQwgei :hali require each contractor and subcontractor similarly to provide
~~~uKE-s’ Compensation insurance for its respective employees. Landowner agrees tc
-I?FP^T,~: the City for any damage resulting from Landowner’s failure to maintain any such
-< ‘a’?cf-
25.3. Evidence of Insurance. Prior to commencement of construction of any
-~rc*er?ents which will become public improvements, Landowner shall furnish City satisfactory
.ewe c.‘ the insuranrx required in Sections 26.1 and 26.2 and evidence that the carrier is
r:.jired !c give the City at least fifteen (15) days prior written notice of the cancellation or
‘YZ~JC: CT zi coverage sf a po!icy The insurance shall extend to the City, its elective and
;;CD@lntive boards, commissions, officers, agents. employees and representatives and to ., :
_;ndswner performing work on the Project.
26, Excuse for Nonperformance. Landowner and City shall be excused from
je..ic~?:!ig any obligatiori or undertaking provided in this Agreement. except any obligation to
CS! arj sum of money under the applicable provisions hereof. in the event and so long as the
;or-nancf cf any such obligation 15 prevented or delayed. retarded or hindered by act of God,
eanhquake. flood, explosion action of the elements. war. invasion, insurrection, riot: mob
d~ix sabotage. inability to procure or general shortage of labor, equipment, facilities,
.-aier.aIc or supplies in the open market, failure of transportation, strikes, lockouts,
:::.?oE:'nr;aticr: requisiticn, iaws. orders of governmental. civil. military or naval authority, or any
..:?eC :Z.IS~ whether similar or dissimilar to the foregoing. not within the control of the Party . c IT& extension of time to perform. The Party claiming such extension shall send written
~z;,ce cf ?he claimec! extension to the other Party within thirty (30) days from the
.-c~-er;cement of the cause entitling the Party to the extension.
27. Third Party Beneficiaries. This Agreement is made and entered into for the
sx :ro:eclion and benefit of the Landowner and, the City and their successors and assigns. v:. ot+er verson shall have any right of action based upon any provision in this Agreement. ',
28. Notices Ail notices required by this Agreement. the enabling legislation, or the
.:-~.Z,ECUIE adopted pursuant to Government Code Section 65865, shall be in writing and
;e,~e'.ec in person or sent by certified mail. postage prepaid
hct:ce required io be given tc the City shall be addressed as follows:
CITY OF LODl
iirv Manager
F 0 60x 3006
ILO~I CA 95241-191C
k!o!ice required lo be given to the Landowner shall be addressed as follows
C9C)NTiER COMMUNITY BUILDERS. INC
- ;::re" pany may change the address stated herein by giving notice in writing to the other party,
Icereafter notices shall be addressed and transmitted to the new address.
29, Form of Agreement; Recordation; Exhibits. Except when this Agreement is
?..:r;--aiicaIly terminated due to the expiration of the Term of the Agreement or the provisions of . ~ -,.++-c ,~
., !i': .9(*PSl<,T, 1 ;;9?y)('-
I
Secttor 5.2 iAutomatic Termination Upon Completion and Sale of Residential Lot), the City shall
:a.i~e :hi5 Agreement, any amendment hereto and any other termination of any parts or ',
~rcvis CRI hereof, to be recorded at Landowner's expense. with the county Recorder within ten c, 02~s of the effective date thereof Any amendment or termination of this Agreement to br
.~rcec !hat affects less than all of !he Property shall describe the portion thereof that is the
s.:b!eri c' SUCK amencment or termination. This Agreement IS executed in three duplicate
: pna;~, each of which .s deemed to be an original. This Agreement consists of - pages and
.. . . ~z:-,ibi!r - whch constitute the entire understanding and agreement of the parties.
30, Further Assurances. The Parties agree to execute such additional instruments
;;"sc IC Jndertake such actions as may be necessary to effectuate the intent of this Agreement.
3?. City Cooueration The City agrees to cooperate with Landowner in securing all
:ex??: Ahich may, be required by Ctty, In the event State or Federal laws or regulations
~r.ac1ec1 after the Efteciive Date or action of any governmental jurisdiction, prevent delay or
precitioe compliance with one or more provisions of this Agreement, or require changes in
2~211s '-.~Ds oi pemr:s approved by City, the parties agree that the provisions of this Agreement
s;m tt: Tocifiec, extenided. or suspended as may be necessary to comply with such State and
Federa iaW5 or repuiations or the regulations of other governmental jurisdictions. Each party
spes !c extend tC the other ,Is prompt and reasonable cooperation in so modifying this
,&ieveq: or approved plans
il\ '.,VITNESS WHEREOF. the City of Lodi. a municipal corporation, has authorized the
SXECU:IOT ,c$ this Agreement in duplicate by its Mayor and attested to by its City Clerk under the
au!-,o-.:? Ci 0idinanc.e No. adopted by the City Council of the City of Lodi on the
%V Of. 2007 and Landohjnar has caused this Agreement to be executed. .~
-LANDOWNER
FRONTIER COMMUNITY BUILDERS. INC
Name:
Its:
,2PPROVED AS TO FORM:
5 Stephen Schwabauei
131:) Attorney
EXHIBIT LIST
Exnibi? A- 7
“Xhibli ._ ,&Z:
Exnicit E
Exh:t?lt E--:
Zx’nibii C
Exhibit G
Exhibit E
Exhibil F
Cxhibit G
Exhibit H
Exnibit ~
zxhibii 1.
Exhibit K
Exhibii i.
-
iegai Description of the Properly
Diagram of the Property
General Plan Land Use Map
Zoning Map for Project Site Reserved ..
Development Plan and Infrastructure Map for the Property
Growth Management Allocaiions
Annexation Approvals
Form of Assignment
Reserved
Park Improvements
Required Park Amenities
Benefited Properties
Agreement to Amend Westside Development Agreement
i
EXHIBIT A-1
LEGAL DESCRIPTION OF THE PROPERTY
The land referred to herein is situated in the State of California, County of San Joaquin,
City of Lodi, and is described as follows:
EXHIBIT A-2
DIAGRAM OF THE PROPERTY
A
. , ..
\ ..., ., ., .. ..,, ,l,
i
EXHIBIT C
Reserved
EXHIBIT D
DEVELOPMENT PLAN AND INFRASTRACTURE MAP FOR THE PROPERTY
i
EXHIBIT E
WESTSIDE PROJECT
GROWTH MANAGEMENT ALLOCATION TABLE
i
3'.
.. ....... 1 ~ ~
.... -___ ... ' Allocation Awjicab'e . . . Date -. -c--
Effective Date o! 215 Low Density Units (Reserve) ,.
... Development Agreement -~ __ ......... __ .. .. \Whip the Calendar Year One Year
1.
70 Medium Density Units i'.
~
af?er the Effective Dale
i
..... ....
... 4 -.
thir the Calendar Year Two Years
....
180 High Density Units
after Effective Dare j 40 Low Density Units
\Within the Calendar Year Three Years I40 Low Density Units
Vdithir the Calendar Year Four Years ~ 40 Low Density Units
after Effective -- Date ~. __
after Effective Date .. ...
VVithin the Calendar Year Five Years
',M!hifi the Calendar Year Six Years
.- __
. 40 Low Density Units
........ after Effective ~ Date . .... -__ '40 Low Density Units I i ........... afler Effective Date ...
%@hi. the Calendar Year Seven Years j 40 Low Density Units
. r!hrr the Calendar Year Eight Years ' 40 cow Density Units
~-
I i .. -l after ......... Effective Date ....
afier.E?eect!EJa!? .. .... .....
.___
I !
\
EXHIBIT F
ANNEXATION APPROVALS
'I
EXHIBIT G
FORM OF ASSIGNMENT
QFFICiAL BUSINESS !
Document entitled tc free recording
i;c.dernment Code Section 61 03 I 1
RECORDING REQUESTED EY 1
AND 'WHEN RECORDED MAIL TO- '. j
~
j Clrj of LOdi
,Atin: City Clerk ~
___i
I
F.0, Box 3006
Ljoi. CA 9524t-191G i
(SPACE ABOVE THIS LINE RESERVED FOR
RECORDERS USE)
ASSIGNMENT AND ASSUMPTION AGREEMENT
RELATIVE TO FRONTIER COMMUNITY BUILDERS WESTSIDE
DEVELOPMENT AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (hereinafter, the
p,pernenf"'; is en:ered intc this , 200- -, by and
oetweer Frontier Community Builders, a corporation (hereinafter '?
'Cieveloper"':. anc .. a - (hereinafter
6 ssignee"'!
day of
RECITALS
6. or 2007. the City of Lodi and Developer entered into that
;eTa:r agreemerii entitled "Development Agreement By and Between The City of Lodi
a7c Frontier Conin-wnity Builders. Inc. related to the development known as Frontier
;:vrnunity Builder: Westside Project (hereinafter the "Development Agreement").
P-rsuant to the Development Agreement, Developer agreed to develop certain property
13- >re Darticulariy described in the Development Agreement (hereinafter. the "Subject
C,:,DC~~"; stibjecr !c- cerlain conditions and obligations as set forth in the Development
reemen:. The DeJelopment Agreement was recorded against the Subject Property in 'he 3fficial Recoros of San Joaquin County on ~ 2007, as
;men! NO -
\ 2. Developer intends to convey a portion of the Subject Properly to Assignee,
ccrnmonly referred to as Parcel and more particularly identified and
described in Exhibit A-1 and Exhibit A-2, attached hereto and incorporated herein by this
reference (hereinafter the "Assigned ParceV'j.
5, Developer. desires to assign and Assignee desires to assume all of De. "eoper's . righ! !itle. mierest. burdens and obligations under the Development
Agreement with resmct to and as related to the Assigned Parcel.
ASSIGNMENT AND ASSUMPTION
NOW, THEREFORE, Developer and Assignee hereby agree as follows:
1, DeveloDe: hereby assigns. effective as of Developer's conveyance of the
Assigned Parcel 10 Assignee. all of the rights, title, interest, burdens and obligations of
3eveloper under the Development Agreement with respect to the Assigned Parcel.
Dfveioper retains all the rights, title, interest. burdens and obligations under the
Deueiopmen: Agreement with respect to all other property within the Subject Property
owned by Develonei
2 Assignee hereby assumes all 0: the rights, title, interest, burdens and
obl,gations of Develope: under the Development Agreement with resped to the
Assigned Parcel. and agrees to observe and fully perform all of the duties and
nbiigatlons of Developer under the Development Agreement with respect to the
Assigned Parcel. The parties intend hereby that, upon the execution of this Agreement
aw2 conveyance of the Assigned Parcel to Assignee, Assignee shall become substituted
% 3eveiope: as the "Developer" under the Development Agreement with respect to the
&signed Parcel
3 All of the covenants, terms and conditions set forth herein shall be binding
L,cw and shall inure to the benefit of the parties hereto and their respective heirs.
successors and assigns.
4 The Notice Address described tn Section 28 of fhe Development Agreement
ic: !he Deveioper with respect to the Assigned Parcel shall be:
IN WITNESS HEREOF, the parties hereto have executed this Agreement as of
This Agreement may be signed in identical ;tt day and year first above written.
CG, nterparts.
i
DEVELOPER ASSIGNEE
-
‘J a
8) - By:
Print Name: Prin: Name:
Tille Division Presiaent Title:
EXHIBIT H
RESERVED
i
EXHIBIT I
PARK IMPROVEMENTS
BasinjPark Area Summary
\
- ...... __. ..... .. ..... ...... Westside Annexation
Park - Basin (;), Net Gross, Total,
Locatior.. acres fZ),acres acres acres
~
A 2.9 1.6 1.6 4.5 l
~
. I
E 2.1 2.1 21 j
r 8.2 5.4 6.1 __ 14.3 j __..~ ._ i ...... ...........
Southwest G- Annexation
Park
. .. . ~ -
-. Basin il). Net Gross. Total, ,
acres acres j .... LOCatlOn~ __- .... a__cres--. .. .- *acres !
E 57 2.4 2.4 9.: 1 i4j
F 4,8 1.5 1.5 6.5
i 0' 59 7.5 1.5 7~4 ~ (31
G 2.2 2.2 2.2 ~
H 2 2 2.
ace on Ceniurv Blvo. 0 0 __ 0 . (Sj .. open_sp_ .. .. ~~~______
-. 'Westside Annexation area basin calculations not approved.
?he basin 5re2 numbers are Subject to change.
Net area measured from street right of way.
Mes requirements are exclusive of bike and ped
routes
Park to be located at the southwest end of designated area
Perk to be located at the south end of aesignated
-wo slivers oi open space are shown on Century
hieither area provides sufficient space for park
+acilities.
". .'.
:i I
!A; aree
t 5; Filvd
\
\
7 -
N i
'!
AGREEMENT TO AMEND
WESTSIDE
DEVELOPMENT AGREEMENT
AND REFJWN FROM CHALLENGING LAND USE PROJECT
THIS AGREEMEW is made th!a 4m day of December. 2007 by and batween the City
~f Lodi {City). a California General Uw ci*., represented by the Ctly Manager and Chy
morney with the limbed authority as described in Sectlon 1.A Ciizens for Open
Governmem, an unincorporeted association (CRirens); and Frontlers Community Buildets
peveloper) a dba of Fiantier Lend Companies. a Caltfornia Corporation. The Psnles agree
as follows! ,,
c.. BW
4, IhsPartlestothggeraeIrL am
3~ City of Lodii('City"! is a Gemml Lew city governed by a fivemernber city council.
'or dl purposes herein and during all time8 during the negotiatlon of this Agreement the Ci
'4anager and City AtSomey have represenled the City. However In thk Agreement and at all
'Jmes during the negotbtlon of the &,mernern the Ci Manager and/or City Attorney have
:acked the capacity or legal authority lo blnd the City of Lodi and/or the City Council. The
partie underSand that thrGUghOut the negatletlon and in ekecuting th16 Agreement the City
Manager and Ci Anomey can only recommend to the City Councll that it take certain
,xttons, All atZhorlty and dkcraciori remains with the City Council over whether the Ci
:axil wil( approve or disapprove of thls Agreement. The CRY Councll is scheduled to hear
:at Proiecl-1 a duly ndiced public hearing scheduled after February 1. 2007.
cnjzens LS an unincorporated associmion that has commenhd on the developmenl
2rpvused by Developsr. The 'Ptojecf' referred to herein is 88 ddined in the Development
,$gre;ement for the 'FCB Westside Project" with all Project Approwls described therein,
:;!l,rens desire to have cenain mftlgaion measures end clarifications added to the
:?oveioprnenl Agreement negotiated between City and Developer that in tile Op\hiOn Gf
-i:,iep: will rurther ?he interm of the Cjty end the interest of the public. If these
..ry,&ndrnens are added to the drafl Development Agreement in the form of fhlb Agreement
k&ich shall be an ehlbk to the Developmen1 Agreements, then Citizens will supporl the
Pr~jeci will not rneke negalive comments about the hoJecl'6 EIR or the Project at any Ctt.
:,c;ncil or uilw public hearings. and wilt not subsequentfy challenge the cenMcetion of Ihe
sip 0, ?he Project Approvals, directly or Indlrectly. Ann Cerneyshall be the sole spokesperson .,:., SRizens and make these staternem arthe Clty Council hearlng.
...
3eueloper. a prhe entity. is the applicant lor tho Development Agreements an4
Vrojm Approval5 aeschbed therein. The term 'Developer" includes all relsted entities of
Developer and thel? svdcessors in InIerea
The pa& agree that the Development Agreements contain commitmentsfor
Although cltlzcna are not fulv satisfied with all aspects of the Project and EIR,
1 h8S balanced the beqefii of the Project, iircludlngthe changes to the draft Development
Qreemenrs 8s set forth in this Agreement against the adverse effects cd the Projects and
?as concluded that the Projects, separately or combined, are substan¶ially more beneficial
10 the City than detnmdntal.
2.
8.
major intramucfure and amenities that wl result in public ben& for the City,
C.
mt ion ot Pevelome~e~ men:
The parties agree that the draft Drvrlopment Agrefment for the ProJect, scheduled to
9c considered by the cfty Council at the public hearlng after January 1,2007, Is to be hereby
amenaed by and through this Agreernenr, which shall be attached lo the Development
Pgreernent as Exhibit *-*.
A. Mitiearlon For Aericuhvra 1- I -&j
,I. 3eveloper shallpblain permanerr easements to be held by the City or other quatii
enmiw (e.6. Central qllev Farmland Trusr) lirnlting the use of San Joaquin County real
orope* to agriculturaii uses and related bctiviiie-s as are pennlttcd from time to time under
the agricultural zoning laws of the County ('Agricultural Consewation Easements'). In
~n.dding mitigation for Impace to agricultural land. Developer shall adhere to the terms of
ihc final adopted Sari Joaquin County Agricultural Miifgation Ordinance. now under
mnslderation by the Sen Joaauln County bard of Supervisors. (See November 14. 2006
dmt? Ordinance.)
2, Ax a rnlnlmuq and notwilhstandlng the term8 of the fnal, adopted County
3minorim1 the AgridWUnrl Consec?rvation Bgsemenb ShSU be recorded on a 1;~ acre
.crvssrved:developed) mtio against an awegatate lot81 of Up KO 152 8cres. mot& 6f b2,
~rdxsserliy contiguous -. wkh each mitlgaljon aue localed within San Joequln County and
zoned for agrlcukural uses ('Protected Pmperties'). if mltlgetion lands are located in the
Pmar). Zone of the Sen Joaquin Della ihot lies within the county, Ihe mitigation ratb shell
I?!, an a 2:l acre (canserved:developed) basis. However, if prlor to the Developer's
;:rm,pliancR with this agriculrurai rnnigation requlrernen& the San Joaquin 80ard of
s,,m?na&ors excludes land wkhin certain areas of the County (e.g., the Primary Zone af the
&nz; trom being used for agricultural mitlgstion purpwes, the parlies agree thM those
ii-70~ wauid be excluded from being used tor mitigation pur#m§sa under this Agreement.
.mtained within FCB heHside Pmjed Jnuolving me or more parcsls of land - though not
;, i minimum. and notwilhstanding lhb terms of the final. adopted CountY
;!rdip~noe, ;he kgricultvral Conservation bsernenu may only apply to Protected Propertie3
tral are no1 encumbered by (8) nny olher perpetual open space conservation eesemeni or
2
\
.&Ad restrictior? or (b) any athsr perpetual agricutture mltlgatlon easement or deed,
restriction. The cost of dbtainingthe Agricunural Conservation Easements shall rest with the
9evelaper. The Protemd Properties must be subject to permanent restrictions on use to
ensure me availability of agricultural production capacity by llmttlng non-agricukural
.scveiopment that i: indonsistent with sgricukuw uses and relared act'iMes. In accordance
,VWI the County's No\iamber 14, 2006, draft Migetion Ordinance sedion 91080.3.
subdivision (e)(l), theiDeveloper shall pay an administrative fee Ic cowr the costs of
administering, monitoring and enforclng the tamland cansetvetion easement in en amount
:(i b& determined by the qualified entltythat will hold the consefvatlon easement If the City
wlcs the Agricukural bnseivation Essements, the City will monitor the Protected Propetties
$i&je@. to the easerriertts biannually through Its Planning Commission to ensure compliance.
wd the requirement3 of thls provislon. If the City is selected to hold the Agricultural
:nnservaiion Easemeqts, Developer will pay City $5,000 to compensate the City for
monitoring cost/contingencles In connection wRh the Agricultural Conservation Easement6
-;or the westside Projen
'L': .. rhe Agricultural &nsewation Easements shall be mCOrcled In the appllceble '&lo(s)
sga'nsr a minimum ot each acre to be developed (or more) within any phased Final
SubONiSiOn Map of the,Pro]eet prior to the date the first residential building permit is issued
evsloper for any such phase thereof.
:s; City shall nottfy Cjtkene of which she(s)are selected to meet the requirements of this
provizior 30 days prior lo the recordation of any Agricultural Consewation Easemenls
~~rsuz-~t to this Agrsement if both Cilzens and the City agree, the mitigation ratio
?pplicable 10 mitigatidl lands outslde of the Delta Primary Zone may be reduced if the
3evelooer proposes loabtain canaervaUon easements that. in the judgment of both CYizens
anc rhe Ci. have a greeter mlUgatlon value than lands that could otherwise be used as
-.lingaxion for agricuttirrai impacts of the Pro]ects under this provision.
q. t;ome BulldinP Fnemv a nd Consewlion Features wlUlln the Proled
1; Developer shall become a Caliirnie Green Builder prior to the construction of
{.,I:
:mws ere 31 least 15% more encm efflclent that cUrrently mandaled by Title 24 in
2Iiiornia and meet guidelinesfor energy effldencyaet but the US Environmemal Prorection
.kgency. The homes within the Raja may mntaln a mrW of energy emclent features
snc. nkerneliie enerpylfeatvres such as high effiicienl insulation. hlgh perlonence wlndows,
;igh efticknt hestlng end coolng equipment, cool roofing. radiant banierz. awnings,
:nwha!lgs d2y Ilghtlngiand qualified lighting
lieveloper's status as a California Green Builder requires Developer to
homes within the Prom, Tho Qrircmia Green Builder program requires that all
2)
mpiernent weier conservation features that saves 20,000 gsllons per home per year.
:)c\itioDer shell provide front yard lendscaping using weather based Irrigation contmlleE
sfid drip inigation ano, may utlllze other water conservation features such as hlgh etficlency
fifltUre5 and etliclenl plumbing technologies, product8 and materials. Developer also agree
:c s? weathe- based irrigation contmlies In front yards. perks and colnmon areas.
31 Develop shall make available solar power features and 8leCtrksl CBr
7argingstatrons or o 2 ets that homenwneffi wkhh the Projects may elect 10 purchase as
oar! TI that homeowner‘s optIan pachage.
4 Developer agrees that at least 50% of lhe oonstructlon site waste shall be
~ycieo or otherwise diverted from landfill dkposal.
5) Developer shall us1) only EPA approved natural gaafirepbces, fireplace
wodstDves or pellet stoves when such fireplaces are installed. Developer wflt
-.jnro{y with alt federal, state 6Hd local laws and regulations pertalningto the installation of
WOOG burningfireplaWs.
6) Developer will encoursge landscam maintenance companies to use electllc-
rmmed egutprnent.
7‘ Shade trees will be pbmea where appropriate throughout the ProJect and
,mat& 10 shade paved areas and to protect dwellings from energy consuming
environmental conditions.
6) Developclr agreas 10 comply with the Calffornie Gram Builder wogram that
sppiies LO high density:residential units. CunenUya pilot pmgrarn exlsts that is substantially
similzr to thf low density program, with the excsptlon of the 20.000 gallon per home per
Year in water conscivation.
f I. New l!&&mJl eiclhborhood dfslm.
>eveloper bcllevea %st the Project’s current land use plans promotethe principles of
Y~V. Otbantsrn lhal indude nelghbomoods thst ere walk-able. interwnnecred. that include
mo-vmn fnendly .stteeLscapes; bioycle fnendly deslgn elements: well Integrated, highly
vistbla. and publicly accessible open spacts. Developer IS also committed to deslgningthe
s~eclfc components of the Projects to indude houslng and StNdUral forms that Be vlsual\y !)1F;fralng, well modulated, COnSVUCled of high qualny materials, proportionate to thelr
sJrrourtdings, and a range of houslng types. shes and affardsbllini.
G. &&&Ell? ’ Transn and Bicvcle Infm re: Developer agrees to implement the
foiiowing measures:
Pravlde pedestrian enhancing In?rfstruClure that includes: sidewalks
and pede--an paths, direct psdestrien connections, strset trees to shade sidewalks,
pedestrian ssfely designs/infraslructure, street lighting andlor pedestrian sl&naliation and
Tipiage. and
Provide blcyclenhancing infraslnrcture that includes: bikeways/paths
ccnnectmglo a bikeway system as well a3 secure bike parking-
1)
2)
. .$
\
t &jj.Ja& ide: ' The Project's requlnrnent for investment in Lodi's eeswidet coniinunily as setlofth in the FCB Westside Development Agreement Is hereby amended td
require thm any unb Wich are Sekcted by the Dewloper to be rehabilltared or replaced
end which are CUrrenTly at affordable mnts for persons or families of low income shall
-emain affordable for persons of low income.
SUDD~ &ddltlonal entitlements for urban dfmlopmant within the Project area
suEion maps,: parcel naps. building psrmb, etc.) shall not be granted for any
$wellin@ within the Project ,ate8 after total water use exceeds the projected safe
gmundwarar yield ofthe pmject 8rea until additional urster sources (eg, WAD. groundwater
recharge of water trqetment or otherwise1 are avalleble. According to the Westside-,
Sournwest Gateway Project Water Supply Assessment (July 2006) (WSA'), a total of
aoproximately 257 act% feet per year will be available for the Westside Project upon its
annexation while the :otal projected water demand will likely be in excess of that mounx
mfon full buiid-oul occurs. The purpose of this provision, then, is to ensure that water we
ay :he ProjeLZ does not excead the projected increaea In safe groundwater yield attributable
:o annexstion of the Project area l.*o the Ci unUl addltional water sources (e.g.. W.I.D.
grourowater rechsrge or water treatment or otherwise) are available. (See WSA, Rgure 54.)
- el
r Conflicts; Developer shall strive 10 phase developmem in a manner that %. &ricu~l
~i!i reduce land use confilcts wiKh lands cumentry in agricultural use to the wesl of the
Drojec:. TO the extent feasible, Developer will general@ develop the Project in an east to
*es? direnion.
Y. Q&ene=
1) u-wm mey: This Agreement will not become
meawe in the even1 the1 Ciiizens and/or Ann Cerney: (1) file any legal action challenging
the city's cenirication :of the EIR; (2) file any legel action challenging the Cfs approval oi
:he hoject's land use approvals, including the amendments to the West Slde Facilities
Master Plan; 13) file any legal action challenging the San Joaquin Local &ency Formation
r;ornmisslon's compliqnce with CEQA' (4) file any legal actlon challenging We San Joaquln
..ocat Agenw Formatidn CommiCCion's applOV8l Of the annexation of ?he territory to the Cfiy
9 -0di; (5) qualify a Peferendum petition to require an efection concxmlng one or more of
?.he Project's legisiativ approvals. or (6) violate the tams or The spirit of this Agreement in
ether menner.
5) -bv Third PW.
a. The amendment to the Development AgWement called for in thls
Mretrnent will become pertially ineffective 88 sn: forth below in the event that any other
pan? (i) flles any legal actlon challengmg the Clty's certifrcarion of the E1R; (2) files any
legal adon challenging the City's approval of the ProjsCrs land use approvals; (3) files any
!qai saion challenging lha San Juaquin local Agency Formatlon Commission's cornpbnce
vii.1. CEQR (43 files a legal action shallenging the San Joaquin Local Agency Formatlon
.- ::jmissbn's apnrwval of the annexelion of the lerrltory to the Crty of Lodi: or. (5) qualkieS a -
..
referendum petilion to require an election concerning one or more ofthe Project's legislative
zpprovals.
t.. If an event triggers a partial invalidity as called far abave. the
-sic of number 07 acrm to be mitigated per Section 2A wlll be reduced by 50% and
-elnmursemcnl of e porrion of The fees paid to Ckkens under the Southwest Gate~+y ,
;)evdoprnen: Agreement dated Novembcr 15. 2006 lsee Psragmph 3C. thereln) shall be.
DIJ~ from Citizens to Developer (within 60 days of its written notice to CltlZenS) In the arnourn
ZL b'i.fi00. . Moreover, Chlzens' staw of limitations to me an aciion challenglng the Ci's
;rrtjfcation of rhe EIR and/or land use sppmls will be tolled for thirty (30) day6 from the
i;nitst,ons period established by CEQA. Cily and Developer grant a second conditional and
.imited tolling 01 the slatme of ilmbtlons TO file an action chaiienging Cis certification of
:?e EIR. This conditional and limited tolling will only allse upon a le2al challenge by a third
pav,y ?c iAFCD'5 det&fmit:atian on me OR and/or anrtexatior: and Cltkens' the to flle an
action shall ttxtend fnt only thlrty (30) days after the third prtyfiles its BctiOn.
In the event that dismlssels with prejudice are filed with any
.ipr>tIcsbk Coun before answers are tlled in the third party Iltrgstlon then CFtlzem will
::ismiss any SUbSeokJ@nt actions and the IE~C ot this Agreement shall be fully reetored.
L,
,'
C. Ann Cerney, as the sole representative of Ckizens, shall appear at ell
epprooriare C& Councll hearings and express support for the eppmVBl of tnh ,%p8rnllt
and qon-appasttfon to the Cnytyuncil's approval of the Project and certiflcation of the UR.
Cii2en.s represents and wewant6 the1 Ann Cemey has authority to execute
this Agreement on behalf of Citizens and is alnhorized 10 speak on behalf of the organiration
ai all Lodl City Councilpnd other public meetings.
Developer has previously agreed to wnditional)y pay $40.000 to Cltlzens ae
reimbursement to Citizens for anorney fees expended in the negotiation and executing of an
amendmenl to the Southwes Gateway Development Agreement along the same lines as set
?or:() zuclve; therefore, the panles lutlher agree that Developer owes no addhl-
;c :eimburse members of the Citizens for any time and effort expensed in the proeeS9 of
amending the Westside Development Agreement.
If the public bencmts included in this Agreement are not adopted by the City
CQuncil, Citizens' suppon for approval ol this Agleement and nomppcsNon to the cit~
C-ounctl's approval of the Projects and cenlRcation of the EIR Will be Wnhdmwn and its
rrrviousiy ststed obpclions will be renewed. CtQt and Developer agree not to e8Sm an
exhaustion of administatlve remedies defense as to those ISsUeS Specficelly raised End
e>.heoSed at hearing regarding the Projecl if litigation ensues ijnd this agreement becomes
qu'! and void, or partially invalid, unde! this Agreement
8.
f.
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'%s Agreement stisll be imrnedlatefy effecthre and binding upon CIrizens and
Developer, but subject to termination by condition subsequent shoukj the Lodi City Council
rot ratify thls Agreemmt at the time of Its public hearing on the FCB Westlake Projem
ScheduW afler February 1. 2007 The remainder 0: Wi AgreEment shall only become
effectwe upon the Ci Council approval of the amendment to the drm Development
Agreemen: that are dm-bed in Sectlon 2. Notwithstanding any Other provision herein to
3e contrary, because of the nature of the mwgation measures Set f0Rh her& (e.g.. rznlo of
;:I ecres lor agtlcuhure mitigation), the parties agree th& this Agreement shall be effective
as sandalone resolutions of their disputa a: to this Project
r I v Aeteemew ~-R-- Pt?tMOll,
If the amendment to the Development Agr88mCnt called for in this Agreement are
adopted b) the City Coundl. Cltlzens agrees Khat neither It nor Its individual members shall
SJQ the Ctty or the Sari Jonquln Local Agency Formation Commleston over the suffidency of
'he EtR or the land use/annexation declslons by these public agenCleS. Further neither
Wzens not its memberr shall encoumgc- or gw assistance to any others to challenge the >evelopar's Project either adminlstmtlvely or judiclwlfy. Moreaver, neither ChiZen... * nor its
-nembers, will encourage. indirectly askt or actualty circulate a petftion to place a
-efttendurn on the ballot to force en election about the Project's IegisbtiVe WprOVak.
6. Cwntwrram.
Thls aareemenrmey be executed In counterparts.
By: Tom Doucene. Prebident
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