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Home My WebLink AboutAgenda Report - March 12, 2019 F-01 SMCITY OF LODI COUNCIL COMMUNICATION AGENDA ITEM TM AGENDA TITLE: Reschedule Council Action to Adopt Resolution Authorizing City Manager to Execute Improvement Agreement for Gateway North Subdivision, Unit No. 1, Tract No. 3940 for April 17, 2019 MEETING DATE: March 12, 2019 PREPARED BY: Public Works Director RECOMMENDED ACTION: BACKGROUND INFORMATION: Reschedule Council Action to adopt resolution authorizing City Manager to execute Improvement Agreement for Gateway North Subdivision, Unit No. 1, Tract No. 3940 for April 17, 2019. Gateway North Subdivision, Unit No. 1, is located west of Lower Sacramento Road and south of Lodi Shopping Center, as shown on Exhibit A. Unit No. 1 consists of 98 single-family, residential lots. The developer, Blossom Land Company (Developer), will be presenting the final map for approval at a later date. This project is inside the Area of Benefit of Reimbursement Agreement RA18-01 (Lodi Shopping Center) which is currently in the approval process. Developer will be responsible for the reimbursement payment in accordance with Lodi Municipal Code 17.62.060. The project includes the installation of all interior subdivision public improvements and street improvements on Lower Sacramento Road from the southerly Lodi Shopping Center Driveway to its southerly boundary of the single-family home development (270 linear feet). Developer has requested to execute a separate improvement agreement to design and construct the Lower Sacramento Road public improvements in order to expedite construction of the other site improvements. City staff has deemed this a reasonable request and included a condition requiring that the Lower Sacramento Road public improvements be completed prior to final acceptance of the Gateway North, Unit No. 1, project. Developer has furnished the City with improvement plans, necessary agreements, guarantees, insurance certificates, and the required fees for the proposed subdivision. Development Impact Fees will be collected as part of the building permit process, prior to issuing a certificate of occupancy, for each single-family residence, in accordance with Lodi Municipal Code §15.64.040. This project is part of the Community Facilities District No. 2007-1 (Public Services) (CFD). Portions of the cost to install certain offsite public improvements that benefit other properties may be eligible for reimbursement from others. It is Developer's responsibility to request reimbursement and submit the appropriate information per Lodi Municipal Code Chapter §17.62. This item was rescheduled for consideration at the February 6, 2019 Council meeting to March 12, 2019 concurrent with the continued public hearing to consider adopting a resolution to authorize the City Manager to execute Reimbursement Agreement RA -18-01, for public improvements constructed with the APPROVED:_►Y� Step en Schwabe ► ty Manager K:\WP\DEV SERV\Developments\Lodi Southwest Gateway\Gateway North\Improvement Agreement\C_ImpAgmt_Unit 1 doc 3/8/2019 Reschedule Council Action to Adopt Resolution Authorizing City Manager to Execute Improvement Agreement for Gateway North Subdivision, Unit No. 1, Tract No. 3940 for April 17, 2019 March 12, 2019 Page 2 Lodi Shopping Center. Since the public hearing to consider Reimbursement Agreement RA -18-01 is now being continued to April 17, 2019, staff recommends rescheduling this item to April 17, 2019. FISCAL IMPACT: There will be an increase in long-term maintenance costs for public infrastructure and City services such as police, fire, and parks, and open space maintenance. This cost will be partially offset by proceeds from the CFD. FUNDING AVAILABLE: Not applicable. Charles E. Swimley, Jr. Public Works Director Prepared by Lyman Chang, City Engineer/Deputy Public Works Director CES/LC/tdb Attachments cc: City Attorney Magdich City Engineer / Deputy Public Works Director Chang Senior Civil Engineer Nathan Assistant Civil Engineer Kiriu Senior Engineering Technician Wiman Blossom Land Company MCR Engineering Browman Development Company K:\WP\DEV_SERV\Developments\Lodi Southwest Gateway\Gateway North \Improvement Agreement\C_ImpAgmt_Unit 1.doc 3/8/2019 Primrose Dr. Tulip Wy. uuIIuuIuu,uIi� Larkspur Ln. Lower Sacramento Rd. Gateway North Subdivision Unit 1 Boundary Century Blvd. EXHIBIT A GATEWAY NORTH SUBDIVISION UNIT 1 VICINITY MAP s 1 inch = 300 feet Path: K:\WP\DEV SERV\Developments\Lodi Southwest Gateway\Gateway North\Improvement Aareement\C ExhibitA.mxd RESOLUTION NO. 2019- A RESOLUTION OF THE LODI CITY COUNCIL AUTHORIZING THE CITY MANAGER TO EXECUTE AN IMPROVEMENT AGREEMENT FOR GATEWAY NORTH SUBDIVISION, UNIT NO. 1, TRACT NO. 3940 WHEREAS, Gateway North Subdivision, Unit No. 1, is located west of Lower Sacramento Road and south of Lodi Shopping Center; and WHEREAS, Unit No. 1 consists of 98 single-family residential lots; and WHEREAS, the developer, Blossom Land Company (Developer), will present the final map for approval at a later date; and WHEREAS, the project includes the installation of all interior subdivision public improvements and street improvements on Lower Sacramento Road from the southerly Lodi Shopping Center Driveway to its southerly boundary of the single-family home development (270 linear feet); and WHEREAS, Developer has furnished the City with improvement plans, necessary agreements, guarantees, insurance certificates, and the required fees for the proposed subdivision; and WHEREAS, Development Impact Fees will be collected as part of the building permit process prior to issuing a certificate of occupancy for each single-family residence, in accordance with Lodi Municipal Code Section 15.64.040, and in accordance with the terms and conditions of the improvement agreement. NOW, THEREFORE, BE IT RESOLVED that the Lodi City Council does hereby authorize the City Manager to execute the Improvement Agreement for the Public Improvements of Gateway North, Unit No. 1, Tract No. 3940 in the form attached hereto as Exhibit A and made a part hereof. Dated: March 12, 2019 I hereby certify that Resolution No. 2019- was passed and adopted by the City Council of the City of Lodi in a regular meeting held March 12, 2019, by the following vote: AYES: COUNCIL MEMBERS — NOES: COUNCIL MEMBERS — ABSENT: COUNCIL MEMBERS — ABSTAIN: COUNCIL MEMBERS — 2019 - JENNIFER M. FERRAIOLO City Clerk WHEN RECORDED, RETURN TO: City Clerk City of Lodi 221 West Pine Street Lodi, CA 95240 IMPROVEMENT AGREEMENT for the PUBLIC IMPROVEMENTS of GATEWAY NORTH, UNIT NO 1 TRACT NO. 3940 THIS AGREEMENT is made and entered into by and between the CITY OF LODI, a California municipal corporation, hereinafter referred to as "City", and Blossom Land Company, a California corporation, hereinafter referred to as "Developer". RECITALS: Developer is the developer of that certain real property situated in the City of Lodi, County of San Joaquin, commonly known as Parcels 2 and 3 (A.P.Ns.: 058-03-016 AND 058-03-040) and more particularly described in Exhibit A, attached hereto and incorporated herein. Developer has presented to City for approval the final subdivision maps based on the Vesting Tentative Map approved by the Lodi Planning Commission on December 13, 2017, pursuant to Planning Commission Resolution No. 17-20, entitled "Gateway North". Developer presented a final subdivision map titled "Gateway North, Unit No. 1" for a portion of the Gateway North subdivision, hereinafter called "Map," the Map was filed with the Public Works Director for presentation to the City Council for approval, and ishereby referred to and incorporated herein; Developer has requested approval of the improvement plans (Plan Set D181) prior to the final approval of the Map. The public improvement plans include all streets, highways or public ways, and public utilities and facilities which are a part of, or appurtenant to, the Gateway North, Unit No. 1 Subdivision, hereinafter called "Project," all in accordance with, and as required by, the plans and specifications for all or any of said improvements in, appurtenant to, or outside the limits of Project, which plans and specifications are now on file in the office of and endorsed with the approval of the Public Works Director or his designee. Developer acknowleds that a subsequent improvement agreement will be required for the Lower Sacramento Road improvements prior to final approval of the Map. City Council will adopt a resolution to approve the Map and accept the dedications therein offered at a later date on the condition that Developer will first enter into and execute this Agreement with City and meet the requirements of the Resolution; and This Agreement is executed pursuant to the provisions of the Subdivision Map Act of the State of California and Titles 15 and 17 of the Lodi Municipal Code ("LMC"). NOW THEREFORE, for and in consideration of the acceptance of the dedications offered, and in order to insure satisfactory performance by Developer of Developer's obligations under State law and City Code, the parties agree as follows: 1. Performance of Work by Developer Developer will do and perform, or cause to be done and performed at Developer's own expense, in a good and workmanlike manner, and furnish all required materials, all under the direction and to the satisfaction of City's Public Works Director, all of the work and improvements as shown on the approved improvement plans for the Project, Plan Set D181, which is on file in the Public Works Department. The Developer shall also perform or cause to be performed the following items which are not shown on the improvement plans: I':MPDEU SERVSpyvelopmyntvilodl Soul+twos[Gelewex'r'asswuvhanhUmprova"ienlA, yE.elumpny",! 6M. 2Y.±Nojh U61. 1 Redklly Siogl{-WWAGEV-SSP%ADavolopmencsLaAFSoult.wesEGalawaylaaseway- NeaHumprovemon+-Ayruemer4kimpAgmt inwaY'Aiegr+ UnH14REV+£E0,01.4.-o 1 2/6/2019 A. Street light installation and connection to City system; B. Street frontage improvements on Lower Sacramento Road (by separate agreement) C. Natural gas line installation; D. Telephone line installation; E. Electrical system; and F. Cable television system. 2. Development .changes_ Developer shall also perform all work and furnish all materials necessary to comply with any changes required by the Public Works Director, which, in his opinion, are necessary or required to complete the work in conformance with City Standards or are the result of changed conditions. 3. Performance of Work by City Prior to the approval of the final map by the City, it is agreed that the Developer shall deposit with the City the amount of money shown as the "Developer Cost" on the Billing Schedule, attached hereto as Exhibit B, attached hereto and incorporated herein. From payments made under the Billing Schedule, Developer elects to have the City perform or install or cause the installation of the following items: A. Street seal coat; B. Televideo inspection of the public sewer and storm drain lines. The fee shown on the Billing Schedule is based on the linear footage of sewer and storm drain pipe, including laterals, shown on the improvement plans. The fee will be adjusted, if necessary, when the televideo inspection is complete. Any additional fee must be paid prior to Project acceptance; and C. Storm Water Permit Compliance Inspections. The fee shown on the Billing Schedule is based on one (1) inspection per month for construction activities covering twelve months period. The fee will be adjusted, if necessary, when the improvements are complete and ready for acceptance by the City. Any additional fee must be paid prior to Project acceptance; Developer shall also pay all additional costs for work performed by City deemed by the Public Works Director necessary to complete the work under this Agreement in conformance with City Standards. 4. Development impact Mitigation Fees Development Impact Mitigation Fees for water, wastewater capacity, street improvements, storm drain, police, fire, parks and recreation, general City facilities, and art in public places are required for this Project. Payment of the Development Impact Mitigation Fees shall be collected prior to issuance of the Certificate of Occupancy for each dwelling. The amounts shown in this Agreement for the Development Impact Mitigation Fees are those in effect at the time of execution of this Agreement. In conformance with LMC Section 15.64.050, the fees are automatically adjusted on January 1s` of each year. Fees may also be adjusted at other times by separate City Council action. The actual fees to be paid will be those in effect at the time of payment. This Agreement shall in no way limit City's ability to charge Developer the fees in effect at the time Developer pays the fees. iNatEMY SER..+ti .MaTE9id0,p 1.4.. OY±E!;F Q, taw411g33 +OLN LINi1 ERY.4^_LOIAVIRA L MSintc.ialHY.aLN5trIti_W 1 FtedFnQ 4r uere,,_ e,: cs {,V arWopfpwn[sALa&touthwoo-Gut©way45at.way.44.4 Ympfar.ot-A94430menikkiv4grm-6akswwayLN040 1341.11ROASEE$40M.tfoo 2 2/6/2019 5. Reimbursement to Others Devetoper acknowledges that the City Council adopted RA 18-01 at its regular meeting on-. February 6, 2019 [Resolution No. 2019- ]. Developer agrees to pay all costs allocated to Developer in RA 16-01 in accordance with LMC §17.62.060, as shown in Exhibit 8. 6:6. Reimbursement from Others Developer may be eligible for reimbursement from others for the cost of certain off-site public improvements that benefit other properties. It is Developer's responsibility to request reimbursement and submit the appropriate information per LMC Section 17.62. i:7. Work; Time for Commencement and Performance Developer shall, within 365 calendar days from the date of this Agreement, perform or cause to be performed, all work and/or improvements described in this Agreement At least 15 calendar days prior to the commencement of work hereunder, Developer shall notify the Public Works Director of the date fixed by Developer for commencement thereof, so that City can provide inspection services. 7 8. Time Extension Time is of the essence of this Agreement. City may extend the time for completion of the improvements hereunder, under the terms of an addendum to this Agreement, which shall be approved and executed by the City Manager. Any such extension may be granted without notice to Developer's surety, and extensions so granted, shall not relieve the surety's liability on the bond to secure the faithful performance of Developer under this Agreement. The City Manager shall make the sole and final determination as to whether or not good cause has been shown to entitle Developer to an extension. 8:9. Record Drawings and Certifications Prior to acceptance of the Project improvements, Developer shall have installed and put in place, all survey monuments as shown on the Map and provide record drawings and certifications as described in the City of Lodi Public Improvement Design Standards. 0..1 0 Permits; Compliance wills Law Developer shall, at Developer's expense, obtain all necessary permits and licenses for the construction of the improvements described in this Agreement, give all necessary notices, and pay all fees and taxes required by law. 19 1 'l . Superintendence by Developer Developer shall give personal superintendence to the Project, or have a competent agent, foreman or superintendent, satisfactory to the Public Works Director, on the Project work site at all times during construction, with authority to act for Developer 12 Inspection by City Developer, shall at all times, maintain proper facilities and provide safe access for inspection by City to all parts of the work site. Inspections will be provided during normal working hours of City staff. Developer will be billed for inspections on work performed on weekends, holidays and overtime. Developer shall also pay all additional costs incurred by City for soils and materials testing and/or inspection services, including storm water compliance inspections, required as a part of City inspection activities. 1 X13. Contract Security Concurrently with the execution of this Agreement, Developer shall furnish Improvement Security of at least 100 percent of the estimated cost of the public improvements required to be constructed, plus deferred fees and engineering costs of surveying, record drawings and certifications as security for the faithful performance of this Agreement; and an amount equal to at least 100 percent of the above costs, excluding deferred fees, as KITI OEV $ERvlOeveloMmj Lodi South c Gatnway"G2lewnv NurlrrumRroye7nentigtt 901antumaRnml Gelawgy Neth (Js11 I Rsdlinu.stsgA4 14AF7At-SggvitkveropmurAall:ANA-SovihypeWraierruy;Gakmay NaaAumprevomenI-A5reemerdumpAgrnl y4kolil !1414-1REV165f+JDirFdaa 3 2/6/2019 Formatted: Underline 11. Formatted: Indent: Left: 0.5", No bullets or numbering, Tab stops: 0.5", Decimal aligned + Not at 0.25" security for the payment of all persons performing labor and furnishing materials in connection with this Agreement as more fully described in the State Subdivision Map Act. The City has determined these security amounts to be as follows: Faithful Performance: Labor and Materials: $ 2,728,100 $ 2,728,100 43:14. Warranty Security Prior to acceptance of the Project improvements by City, Developer shall furnish warranty security of at least 10 percent of the total cost of the public improvements required to be constructed, as security for repair or replacement of defective work as provided under Paragraph 17 of this Agreement. The warranty period shall be two years following the date of acceptance of the improvements by City. If any portion of the Project receives partial acceptance during the course of construction, the warranty period for all required Project improvements shall commence upon the date of final acceptance for the entire Project. 14:15. Indemnity and Hold -Harmless Agreement Except for the gross negligence or willful misconduct of an Indemnitee (as hereinafter defined), the Developer hereby assumes liability for and agrees to defend (at Indemnitees' option), indemnify, protect and hold harmless City and its elected and appointed boards, commissions, officers, agents, volunteers, and employees ("Indemnitees") from and against any and all claims, charges, damages, demands, actions, proceedings, losses, stop notices, costs, expenses (including attorney fees), judgments, civil fines and penalties, liabilities of any kind or nature whatsoever, which may be sustained or suffered by or secured against the Indemnitees arising out of or encountered in connection with this Agreement of the performance of the Project including, but not limited to, death of or bodily or personal injury to persons or damage to property, including owned by or under the care and custody of City, and for civil fines and penalties, that may arise from or be caused, in whole or in part, by any negligent or other act or omission of Developer, its officers, agents, employees, contractors or subcontractors including, but not limited to, liability arising from: A. Any dangerous, hazardous, unsafe or defective condition of, in or on the premises, of any nature whatsoever, which may exist by reason of any act, omission, neglect, or any use or occupation of the Project site by Developer, its officers, agents, employees, contractors or subcontractors; B. Any operation conducted upon or any use or occupation of the premises by Developer, its officers, agents, employees, contractors or subcontractors under or pursuant to the provisions of this Agreement or otherwise; C. Any act, omission, or negligence of Developer, its officers, agents, employees, contractors or subcontractors. D. Any failure of Developer, its officers, agents or employees to comply with any of the terms or conditions of this Agreement or any applicable federal, state, regional, or municipal law, ordinance, rule or regulation; and E. The conditions, operations, uses, occupations, acts, omissions or negligence referred to in sub -sections (1), (2), (3), and (4) of this paragraph, existing or conducted upon or arising from the use or occupation by Developer on any other premises in the care, custody and control of City. The Developer also agrees to indemnify City and pay for all damage or loss suffered by City including but not limited to damage to or loss of City property, to the extent not K WPtDEV S,ERVI0omIDim3antpLodl Schamit G�Lv...K4 at +y tWriAirwrvgmmAc unmeniVpipAapiunylay 2101 aryl 1 ReetrL9 d9CKWVP1P6I: SELL:V•IDaraEgprnaal61144v^wUryrec4U9iowaylGatoway Wxlhl runovontenl•AgleenleH99169A 841-66 oway-WMh llnLi-IREVIS.EDJtlM 404 4 2/6/2019 insured by City and loss of City revenue from any source, caused by or arising out of the conditions, operations, uses, occupations, acts, omissions or negligence referred to in sub -sections (1), (2), (3), (4), and (5) of this paragraph. Developer's obligations under this Section apply regardless of whether or not such claim, charge, damage, demand, action, proceeding, loss, stop notice, cost, expense, judgment, civil fine or penalty, or liability was caused in part or contributed to by an Indemnitee. However, without affecting the rights of City under any provision of this Agreement, Developer shall not be required to indemnify and hold harmless City for liability attributable to the active negligence of City, provided such active negligence is determined by agreement between the parties or by the findings of a court of competent jurisdiction. In instances where City is shown to have been actively negligent and where City's active negligence accounts for only a percentage of the liability involved, the obligation of Developer will be for that entire portion or percentage of liability not attributable to the active negligence of City. Developer agrees to obtain executed indemnity agreements with provisions identical to those set forth in this paragraph from each and every contractor or subcontractor or any other person or entity involved by, for, with or on behalf of Developer in the performance of this Agreement. In the event Developer fails to obtain such indemnity obligations from others as required here, Developer agrees to be fully responsible according to the terms of this paragraph. Failure of City to monitor compliance with these requirements of this paragraph imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. This obligation to indemnify and defend City as set forth here is binding on the successors, assigns or heirs of Developer and shall survive the termination of this Agreement or this paragraph. This Indemnity shall survive termination of the Agreement. This Indemnity is in addition to any other rights or remedies that the Indemnitees may have under the law or under any other contract or agreements. In the event of any claim or demand made against any party which is entitled to be indemnified hereunder, City may, in its sole discretion, reserve, retrain or apply any monies owing to the Developer under this Agreement, if any, for the purpose of resolving such claims; provided, however, City may release such funds if the Developer provides City with reasonable assurance of protection of the Indemnitees' interests. City shall, in its sole discretion, determine whether such assurances are reasonable. 15,16. Developer's Insurance Developer shall not commence work under this Agreement until Developer shall have obtained all insurance required under this paragraph, nor shall Developer allow any contractor or subcontractor to commence work on Developer's behalf or request until all similar insurance required of the contractor or subcontractor shall have been so obtained and approved by the City;s Riak Manager. All requirements herein provided shall appear either in the body of the insurance policies or as endorsements and shall specifically bind the insurance carrier. Insurance requirements are set forth in Exhibit C, attached hereto and incorporated herein. i / Title to Improvements Title to, and ownership of, all public improvements constructed hereunder by Developer shall vest absolutely in City upon completion and acceptance of such public improvements by City. 1.7:1 S. Repair or Reconstruction of Defective Work If, within a period of two (2) years after final acceptance by City of the work performed under this Agreement, any structure or part of any structure furnished and/or installed or constructed, or caused to be installed or constructed by Developer, or any of the work R.,,WP1DEV SERV{Qava :omen iali_odi Southwest GifingyErakwpv No[thtlrt7p! wmerpgr A„g1e_amenill 2pA,-gQ4 ijiiaw'ire Nash Unit 1 8. 444144MPOE-V 614WPoveloomaAtc142od«Saiiiweel•;stowsgy:GatvwayWavIhUmplovwnoncAyrnansenlOvkgmFC'sloway-Nofth idni4-1RE-V{SED-JO .sWv 5 2/6/2019 done under this Agreement, including the mitigation measures for dust and erosion control, fails to fulfill any of the requirements of this Agreement plans and specifications referred to herein, Developer and Developer's surety shall, without delay and without cost to City, repair, replace or reconstruct any defective or otherwise unsatisfactory part or parts of the work or structure. Should Developer or Developer's surety fail to act promptly or in accordance with this requirement, or should the exigencies of the case require repairs or replacements to be made before Developer can be notified, City may, at its option, make the necessary repairs or replacements or perform the necessary work, and Developer shall pay to City the actual cost of such repairs plus 15 -percent for administration and overhead costs. 1i. I i. Landscape Maintenance Developer shall perform regular maintenance on landscape elements, including plants and irrigation systems installed with the Project for a period of two (2) years after the final acceptance by City. Should Developer or Developer's surety fail to act promptly or in accordance with this requirement, or should the exigencies of the case require maintenance to be performed before Developer can be notified, City may, at its option, perform the necessary maintenance work, and Developer shall pay to City the actual cost of such repairs plus 15 -percent for administration and overhead costs. X20. Repair or Replacement of Qity-Owned Bypass Meter Assemblies Developer is required by City to install bypass meter assemblies in conjunction with the installation of water mains in the City of Lodi. City will supply these assemblies upon receipt of a deposit in the amount of $5,263 for each assembly required. The purpose of the deposit is to guarantee the return of the assembly in good condition and fulfillment of the other obligations shown in the City's Policies and Procedures entitled "Metering Water Usage of New Water Mains Requiring Temporary Bypasses." 2{-21. Mud, Debris, Dust and Erosion Developer agrees and covenants not to permit mud or other debris to be tracked from the Project site or elsewhere onto City or County streets or onto private property without express permission. Developer further agrees not to cause damage to City or County streets. Should any mud or debris be deposited in City or County streets or any damage is caused to City or County streets, Developer shall have the same removed or repaired forthwith, and if not removed or repaired upon notice within a specified time, City shall cause the same to be removed or repaired and Developer shall be charged for the cost of said removal or repairs. Developer, Developer's contractor, subcontractors, and/or agents shall be responsible for dust and erosion problems created during construction, including installation of telephone, electrical, cable television and gas facilities. Developer's responsibility for dust and erosion control shall extend to include a period of two years from the date of final acceptance by City of the work performed under this Agreement. If a dust or erosion problem arises during Project construction or within a period of two (2) years from the date of final acceptance by City of the work performed under this Agreement, including but not limited to installation of telephone, electrical, cable television, and/or gas facilities, and has not, after notice, been abated by Developer within a specified period of time, City shall cause the same to be controlled, and Developer shall be charged with the cost of said control. 2-1,22. Fire Protection During Construction Fire protection facilities approved by City's Fire Chief, including all-weather access road and an approved water supply capable of supplying the required fire flow, shall be installed and made serviceable in accordance with the City Fire Code (as set forth in the Lodi Municipal Code) prior to and during the time of Project construction. The above may IK WPS/EV $ERVIDatttgmm p,•asgei oillr/oal GalewavlGnlawav Nog lhIlrrrproveinenl AargenygnEUrr1R!1g1r.1 Gakewy_J;kdh Uri Redline.docrANPWRV SERIADavalopgnaalciL-v<tl$millthvvbF lawaytSaSasray44vAp4gnoravomenl•Agree en0hnpAcgmt$ataw.ay,Norlh W0it-IRC-W6EDdC M deo 6 2/6/2019 be modified when alternate methods of protection approved by the Fire Chief are provided. 223. Protection of Existing Improvements Damage to any existing improvements, private or public utility lines installed or undergoing installation in which damage occurs during the onsite and offsite construction required of Developer under this Agreement, shall be the absolute responsibility and liability of Developer. In other words, it shall be Developer's responsibility to pay for damage to existing improvements and public or private utilities within the Project property. Damage to any existing facilities outside the limits of the Project damaged as part of the construction of the required Project improvements is also Developer's responsibility. 2-3.24. Dwelling Occupancy City will not allow occupancy of any building or structure within the area of the Map until all deferred fees have been paid, public improvements have been approved and accepted by the Public Works Department per established City policy and other requirements of City codes have been met. If building is started prior to acceptance of the improvements, it is Developer's responsibility to inform all prospective purchasers that occupancy will not be permitted until said deferred fees are paid and public improvements are so accepted by City. 24.25. Developer Not Agent of City Neither Developer nor any of Developer's agents, contractors, or subcontractors are or shall be considered to be agents of City in connection with the performance of Developer's obligations under this Agreement. X26. Notice of Breach and Default If Developer refuses or fails to obtain prosecution of the work, or any severable part thereof, with such diligence as will insure its completion within the time specified, or any extensions thereof, or fails to obtain completion of said work within such time, or if Developer should be adjudged bankrupt, or Developer should make a general assignment for the benefit of Developer's creditors, or if a receiver should be appointed in the event of Developer's insolvency, or if Developer or any of Developer's contractors, subcontractors, agents, or employees, should violate any of the provisions of this Agreement, the Public Works Director or City Council may serve written notice upon Developer and Developer's surety of breach of this Agreement, or any portion thereof, and the default of Developer. 26.27_ Breach of Agreement; Performance by Surety or City In the event of any breach of this Agreement, Developer's surety shall have the duty to take over and complete the work and the improvements as herein specified; provided however, that if the surety, within five (5) days after the serving upon it of such notice of breach, does not give City written notice of its intention to take over the performance of this Agreement, and does not commence performance thereof within five (5) days after notice to City of such election, City may take over the work and prosecute the same to completion, by contract or by any other method City may deem advisable, for the account and at the expense of Developer, and Developer's surety shall be liable to City for any excess cost or damage occasioned City thereby; and, in such event, City, without liability for so doing, may take possession of, and utilize in completing the work, such materials, appliances, plant and other property belonging to Developer as may be on the site of the work and necessary therefor. 228. This Agreement shall run with the land and be binding on the Developer, its heirs, successors and assigns. 28,29. Notices. 1 1l 4. so , to Lo . • odi 6+yaNGaluwa4 NoritNrroc000rterk&aikkquenlAraflorril G0t9W ft NQS Dill f RNdllnu.49FK INPIDEV=SERV9iwoloononrWLodi Swtiwvnai-G4gow4y.16aloway-NurthVnnPravecoarwAs+ct•moni90 trot Calaway No4l NWNREWSEEi-J941-doc 7 2/6/2019 EXHIBIT A Older Number: OM-56e321i Page Number: 9 LEGAL DESCRIPTION Real property In the aty of Lodi , County of San Joaquin, Stabil of California, described as follows: PARCEL 1: THE NORTH HALF OF 111E NORTHWEST QUARTER OF SECTION 15, TOWNSHIP 3 NORTH, RANGE 6 EAST, MOUNT DIABLO BASE AND MERIDIAN. EXCEPT THEREFROM: (1) THAT PORTION DESCRIBED IN THE DEED TO THE STATE OF CALIFORNIA RECORDED FEBRUARY 16, 1972 IN BOOK 3620 OF OFFICIAL RECORDS, PAGE 118, SAN JOAQUIN COUNTY RECORDS. (2) A PORTION OF THE NORTH HALF OF THE NORTHWEST QUARTER OF SECTION 15, TOWNSHIP 3 NORTH, RANGE 6 EAST, MOUNT DIABLO BASE AND MERIDIAN, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE INTERSECTION OF THE SOUTH LINE OF THE NORTH HALF OF SAID NORTHWEST QUARTER AND THE WEST UNE OF LOWER SACRAMENTO ROAD (80 FEET WIDE); THENCE WESTERLY ALONG SAID SOUTH UNE, 735.50 FEET; THENCE NORTHERLY, PARALLEL TO THE EAST LINE OF SAID NORTHWEST QUARTER, 1271 FEET, MORE OR LESS, TO THE SOUTH LINE OF HIGHWAY 12, AS DESCRIBED IN DEED RECORDED FEBRUARY 16, 1972 IN BOOK 3620 OF OFFICIAL RECORDS, PAGE 118, SAN JOAQUIN COUNTY RECORDS; THENCE EASTERLY ALONG THE SOUTH UNE OF SAID HIGHWAY 12, 735.50 FEET TO THE WEST LINE OF LOWER SACRAMENTO ROAD; THENCE SOUTHERLY ALONG SAID WEST UNE, 1271 FEET, MORE OR LESS, TO THE POINT OF BEGINNING. (3) A PORTION OF THE NORTH HALF OF THE NORTHWEST QUARTER OF SECTION 15, TOWNSHIP 3 NORTH, RANGE 6 EAST, MOUNT DIABLO BASE AND MERIDIAN, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE INTERSECTION OF THE SOUTH UNE OF THE NORTH HALF OF SAID NORTHWEST QUARTER AND THE WEST LINE OF LOWER SACRAMENTO ROAD (80 FEET WIDE); THENCE WESTERLY ALONG SAID SOUTH LINE, 735.50 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 00° 03' EAST, PARALLEL WITH THE EAST UNE OF SAID NORTHWEST QUARTER SECTION, 1246.35 FEET TO THE SOUTH LINE OF KETT .EM AN LANE (100 FEET WIDE); THENCE ALONG SAID SOUTH LINE, NORTH 89° 09' 30° WEST, 546.33 FEET TO TIE SOUTHERLY PROJECTION OF THE WEST LINE OF LOT 10 OF THE TAYLOR TRACT AS FILED IN VOL 3 OF MAPS AND PLATS, PAGE 47, SAN JOAQUIN COUNTY RECORDS; THENCE RUNNING PARALLEL WITH SAID EAST LINE OF THE NORTHWEST QUARTER SECTION, SOUTH 0° 03' WEST, 1246.31 FEET TO SAID SOUTH LINE OF THE NORTH HALF OF THE NORTH HALF OF SECTION 15; THENCE ALONG SAID SOUTH UNE, SOUTH 89° 09' 15" EAST, 546.33 TO THE TRUE POINT OF BEGINNING. (4) THAT PORTION CONVEYED TO THE CITY OF LODI BY DEED RECORDED AUGUST 12, 2003 AS INSTRUMENT NO. 2003-181033, SAN JOAQUIN COUNTY RECORDS. PARCEL 2: A PORTION OF PARCEL NINE, PARCEL TEN, PARCEL ELEVEN, PARCEL THIRTEEN AND ALL OF PARCEL TWELVE, AS DESCRIBED IN THAT CERTAIN QUITCLAIM DEED RECORDED MAY 20, 1996 AS INSTRUMENT NO. 96052704, SAN JOAQUIN COUNTY RECORDS, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: First Arnerican71ae Pa5e 9 o 21 Order Number: 0102-013216 Pape Number: 10 COMMENCING AT A BOLT MARKING THE CENTER OF SECTION 15, TOWNSHIP 3 NORTH, RANGE 6 EAST, MOUNT DIABLO BASE AND MERIDIAN, ALSO BEING POINT ON THE CENTERLINE OF LOWER SACRAMENTO ROAD; THENCE SOUTH 00° 00' 33" EAST, 26.00 FEET ALONG THE NORTH-SOtrfll QUARTER (N -S 1/4) SECTION LINE OF SAID SECTION 15; THENCE THE FOLLOWING FIFTEEN (150 COURSES: 1) SOUTH 890 57' 53" WEST, 439.30 FEET; 2) ALONG AN ARC OF A TANGENT CURVE CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 1026.00 FEET, A CENTRAL ANGLE OF 25° 51' 28" AND AN ARC LENGTH OF 463.04 FEET; 3) ALONG AN ARC OF A TANGENT REVERSE CURVE CONCAVE TO THE SOUTHWEST FROM A RADIAL UNE BEARING SOUTH 25° 49' 21" WEST, HAVING A RADIUS OF 974.00 FEET, A CENTRAL ANGLE OF 00° 35' 14" AND AN ARC LENGTH OF 9.98 FEET; 4) ALONG AN ARC OF A TANGENT COMPOUND CURVE CONCAVE TO THE SOUTHEAST FROM A RADIAL UNE BEARING SOUTH 25° 14' 07 WEST, HAVING A RADIUS OF 24.00 FEET, A CENTRAL ANGLE OF 95° 26' 10" AND AN ARC LENGTH OF 39.98 FEET 5) ALONG AN ARC OF A TANGENT COMPOUND CURVE CONCAVE TO THE SOUTHEAST FROM A RADIAL LINE BEARING SOUTH 70° 12' 03" EAST, HAVING A RADIUS OF 975.00 FEET, A CENTRAL ANGLE OF 00° 12' 20" AND AN ARC LENGTH OF 3.50 FEET; 6) NORTH 70° 24' 23" WEST, 50 FEET; 7) ALONG AN ARC OF A CURVE CONCAVE TO THE SOUTHWEST FROM A RADIAL UNE BEARING NORTH 70° 24' 23" WEST, HAVING A RADIUS OF 24.00 FIFE, A CENTRAL ANGLE OF 90° 16' 50" AND AN ARC LENGTH OF 37.82 FEET; 8) ALONG AN ARC OF A TANGENT COMPOUND CURVE CONCAVE TO THE SOUTH FROM A RADIAL LINE BEARING SOUTH 19° 18' 47" WEST, HAVING A RADIUS OF 966.00 FEET, A CENTRAL ANGLE OF 36° 47' 59" AND AN ARC LENGTH OF 620.44 FEET; 9) ALONG AN ARC OF A TANGENT COMPOUND CURVE CONCAVE TO THE SOUTHEAST FROM A RADIAL LINE BEARING SOUTH 17° 29' 12" EAST, HAVING A RADIUS OF 24.00 FEET, A CENTRAL ANGLE OF 92° 45' 34" AND AN MC LENGTH OF 38.86 FIST; 10) SOUTH 69° 45' 14" WEST, 50.00 FEET; 11) ALONG AN ARC OF A CURVE CONCAVE TO THE SOUTHIWEST FROM A RADIAL UNE BEARING SOUTH 69° 45' 14" WEST, HAVING A RADIUS OF 975.00 FEET, A CENTRAL ANGLE OF 00° 27 35" AND AN ARC LENGTH OF 7.82 FEET; 12) ALONG AN ARC OF A TANGENT COMPOUND CURVE CONCAVE TO THE SOUTHWEST FROM A RADIAL UNE BEARING SOUTH 69° 17' 39" WEST, HAVING A RADIUS OF 24.00 FEET, A CENTRAL ANGLE OF 92° 43' 09" AND AN ARC LENGTH OF 38.84 FEET; 13) ALONG AN ARC OF A TANGENT COMPOUND CURVE CONCAVE TO THE SOUTHEAST FROM A RADIA UNE BEARING SOUTH 23° 25' 30" EAST, HAVING A RADIUS OF 974.00 FEET, A CENTRAL ANGLE OF 02° 30' 06" AND AN ARC LENGTH OF 42.53 FEET; 14) ALONG AN ARC OF A TANGENT REVERSE CURVE CONCAVE TO THE NORTHWEST FROM A RADIAL LINE BEARING NORTH 25° 55' 36" WEST, HAVING A RADIUS OF 1026.00 FEET, A CENTRAL ANGLE OF 25° 53' 29" AND AN ARC LENGTH OF 463.64 FEET; AND First American Me Page 10 of 21 Mier Number: 111112-54.3216 Pepe Number: 11 15) SOUTH 89° 57' 53" WEST, 456.76 FEET TO THE WEST LINE OF SAID PARCEL NINE, ALSO 8F-ING THE WEST LINE QF SAID SECTION 15; THENCE ALONG SAID WEST UNE, NORTH O0° 02' O7" WEST, 513.00 FEET; THENCE LEAVING LAST SAID LINE, NORTH 89° 57' 53" EAST, 333.88 FEET; THENCE ALONG THE FOLLOWING THIRTEEN (13) COURSES: 1) PARALLEL WITH THE WEST LINE OF SAID SECTION 15, NORTH 00° 02' 07" WEST, 90.30 FEET; 2) ALONG AN ARC OF CURVE CONCAVE TO THE NORTH FROM A RADIAL UNE BEARING NORTH 02° 35' 18" WEST, HAVING A RADIUS OF 300.00 FEET, A CENTRAL ANGLE OF 02° 33' 11" AND AN ARC LENGTH OF 13.37 FEET; 3) SOUTH 89° 57' 53" WEST, 8.52 FEET; 4) PARALLEL WITH THE WEST UNE OF SAID SECTION 15, NORTH 00° 02° 07" WEST, 142.00 FEET; 5) NORTH 89° 57' 53" EAST, 39.61 FEET; 6) NORTH 67° 41' 55" EAST, 77.99 FEET; 7) NORTH 22° 18' O5" WEST, 19.47 FEET; 8) NORTH 67° 41' 55" EAST, 142.00 FEET; 9) SOUTH 22° 18' 05" EAST, 137.98 FEET; 10) ALONG AN ARC OF A CURVE CONCAVE TO THE SOUTHEAST FROM A RADIAL UNE BEARING SOUTH 16° 33' 44" EAST, HAVING A RADIUS OF 500.00 FEET, A CENTRAL ANGLE OF 21° 31' 13" AND AN ARC LENGTH OF 187.50; 11) SOUTH 85° 02' 31" EAST, 183.56 FEET; 12) ALONG AN ARC OF A TANGENT CURVE CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 800.00 FEET, A CENTRAL ANGLE OF 04° 59' 36" AND AN ARC LENGTH OF 69.72 FEET; AND 13) NORTH 89° 57 53" EAST, 291.25 FEET TO THE POINT OF BEGINNING; THENCE FROM SAID POINT OF BEGINNING THE FOLLOWING TWENTY-FIVE (25) COURSES: 1) SOUTH 00° 00' 18" WEST, 37.97 FEET; 2) SOUTH 89° 59' 42" EAST, 37.00 FEET; 3) NORTH 440 59' 0S" EAST, 14.14 FEET; 4) NORTH 89° 59' 53" EAST, 80.00 FEET; 5) SOUTH 45° 00' 55" EAST, 14.15 FEET; 6) NORTH 89° 56° 58" EAST, 52.00 FEET; 7) NORTH 440 59' O5" EAST, 14.14 FEET; 8) NORTH 89° 57' 53" EAST, 70.01 FEET; 9) SOUTH 00° 00' 18" WEST, 217.23 FEET; 10) SOUTH 76° 57 09" EAST, 41.55 FEET; 11) SOUTH 74° 52' 04" EAST, 51.22 FEET; 12) SOUTH 72° 33' 57" EAST, 51.22 FEET; Rat A nerka, 7711e Pepe 11 of 21 Order Number; 0212.8663210 Peps Number. 12 13) SOUTH 70° 10' 31" EAST, 55.17 FEET; 14) SOUTH 67° 44' 49" EAST, 52.00 FEET; 15) NORTH 22° 15' 11" EAST, 20.02 FEET; 16) SOUTH 65° 16' 22" EAST, 64.97 FEET; 17) SOUTH 67° 13' 39" EAST, 55.34 FEET; 18) SOUTH 69° 46' 20" EAST, 7.27 FEET; 19) NORTH 18° 27' 11" EAST, 100.26 FEET; 20) ALONG AN ARC OF A CURVE CONCAVE TO THE NORTHEAST FROM A RADIAL UNE BEARING NORTH 18° 27' 11" EAST, HAVING A RADIUS OF 726.00 FEET, A CENTRAL ANGLE OF 00° 39' 16" AND ARC LENGTH OF 8.29 FEET; 21) NORTH 17° 47' 55" EAST, 52.00 FEET; 22) NORTH 28° 49' 47" WEST, 13.73 FEET; 23) ALONG AN ARC OF A CURVE CONCAVE TO THE WEST FROM A RADIAL UNE BEARING NORTH 75° 27' 29" WEST, HAVING A RADIUS OF 246.00 FEET, A CENTRAL ANGLE OF 14° 32' 13" AND AN ARC LENGTH OF 62.41 FEET; 24) NORTH 000 00' 18" EAST, 21.15 FEET; AND 25) SOUTH 89° 12' 24 " EAST, 623.56 FEET TO THE EAST LINE OF SAID PARCEL 'THIRTEEN, ALSO BEING A POINT ON THE CENTERLINE OF LOWER SACRAMENTO ROAD, ALSO BEING A POINT ON THE EAST UNE OF THE NORTHWEST QUARTER (NW 1/4) OF SAID SECTION 15; THENCE ALONG SAID EAST UNE, NORTH, 218.70 FEET TO THE SOUTHEAST (SE) CORNER OF PARCEL EIGHTEEN AS DESCRIBED IN THAT CERTAIN QUITCLAIM DEED RECORDED MAY 20, 1996 AS INSTRUMENT NO. 96052704, SAN JOAQUIN COUNTY RECORDS; THENCE ALONG THE SOUTH LINE OF SAID PARCEL EIGHTEEN, WEST 310.00 FEET TO THE SOUTHWEST (SW) CORNER OF SAID PARCEL EIGHTEEN, THENCE ALONG THE WEST UNE OF SAID PARCEL EIGHTEEN, PARALLEL WITH THE EAST LINE OF THE NORTHWEST QUARTER (NW1/4) OF SAID SECTION 15, NORTH, 180.00 FEET TO THE NORTHWEST (NW) CORNER OF SAID PARCEL EIGHTEEN, THENCE ALONG THE NORTH UNE OF SAID PARCEL EIGHTEEN, PARALLEL WITH THE SOUTH UNE OF SAID PARCEL EIGHTEEN, EAST, 310.00 FEET TO THE NORTHEAST (NE) CORNER OF SAID PARCEL EIGHTEEN, ALSO BEING A POINT ON THE CENTERLINE OF LOWER SACRAMENTO ROAD, ALSO BEING A POINT OF THE EAST UNE OF THE NORTHWEST QUARTER (NW1/4) OF SAID SECTION 15; THENCE ALONG SAID EAST LINE, NORTH, 357.38 FEET TO THE NORTHEAST (NE) CORNER OF SAID PARCEL TEN, ALSO BEING A POINT ON THE MST -WEST QUARTER -QUARTER (E- W 1/4 1/4) SECTION UNE OF THE NORTHWEST QUARTER (NW 1/4) OF SAID SECTION 15; THENCE ALONG SAID EAST -WEST QUARTER -QUARTER (E -W 1/4 1/4) SECTION UNE, NORTH 89° 12' 24" WEST, 1312.58 PELT, MORE OR LESS, TO A POINT, SOUTH 89° 12' 24" EAST, 1330.19 FEET FROM THE NORTHWEST (NW) CORNER OF SAID PARCEL TEN; THENCE LEAVING SAID UNE, SOUTH 00° 00' 18" WEST, 648.43 FEET TO THE POINT OF BEGINNING, BEING PARCEL 5 OF LOT UNE ADJUSTMENT 09-R- 03, RECORDED JANUARY 11, 2010 AS INSTRUMENT NO. 2010-002139, SAN JOAQUIN COUNTY RECORDS. EXCEPTING THEREFROM ALL OIL, GAS OR MINERAL RIGHTS BELOW SIX HUNDRED FEET (600') OF THE SURFACE OF THE PROPERTY, WITH NO RIGHT OF SURFACE ENTRY, AS RESERVED IN THE DEED RECORDED JANUARY 11, 2010 AS INSTRUMENT N0. 2010-002141, SAN JOAQUIN COUNTY RECORDS. Flat Amerkan Title Pape 12 021 Older Number: 01111-30632111 Pepe Number: 13 PARCEL 3: A PORTION OF THE SOUTHERLY ONE-HALF OF THE NORTHWEST QUARTER OF SECTION 15, TOWNSHIP 3 NORTH, RANGE 6 EAST, MOUNT DIABLO BASE AND MERIDIAN, DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF THE NORTHWEST QUARTER OF SAID SECTION 15; THENCE NORTH, ALONG THE EAST UNE OF SAID NORTHWEST QUARTER, A DISTANCE OF 784 FEET TO THE POINT OF BEGINNING OF THE HEREIN DESCRIBED LAND; THENCE NORTH ALONG THE EAST LINE OF SAID NORTHWEST QUARTER, A DISTANCE OF 180 FEET; THENCE DUE WEST A DISTANCE OF 310 FEET; THENCE DUE SOUTH A DISTANCE OF 180 FEET; THENCE EAST, 310 FEET TO THE POINT OF BEGINNING. EXCEPTING THEREFROM ALL OIL, GAS OR MINERAL RIGHTS BELOW SD( HUNDRED FEET (600') OF THE SURFACE OF THE PROPERTY, WITH NO RIGHT OF SURFACE ENTRY, AS RESERVED IPI THE DEED RECORDED JANUARY 11, 2010 AS INSTRUMENT NO. 2010-002141, SAN JOAQUIN COUNTY RECORDS. APN: 058-030-090-000 (Affects Parcel 1), 058-030-160-000 (Affects Parcel 2) and 058-030-040-000 (Parcel 3) TZJoiT& d RAO la 112 0 'VA !We v St 2 1 • 1•:- .1 to II 1 PT :i.gUR*INed +4 ao BILLING SCHEDULE EXHIBIT B Development: Gateway North, Unit No. 1 Gross Acreage: 19 29 Developer. FCB Homes No. of Units: 98 Engineer: MCR Engineering Date: 9/25/18 Construction cost $2,728,100 00 ENGINEERING Engineering Fee Inspection Fee Engineering Fee Paid Improvement Agreement Fee ENGINEERING SUBTOTAL DEVELOPER COST CREDITS (5% of $100,000) ENGFEE $5,000.00 (3.5% of $200,000) ENGFEE $7,000.00 (2.5% of $2,428,100) ENGFEE $60,702.50 (4% of $250,000) ENGINS $10,000.00 (3.5% of $750,000) ENGINS $26,250 00 (3% of $1,728,100) ENGINS $51,843.00 ENGFEE $ 119,548.00 ENGFEE $2,211.00 STREET SYSTEM Fees: Storm Water Inspection Fees (Charge for 1 year inspection) Charges for work by City Forces: Seal Coat STREET SYSTEM SUBTOTAL SEWER SYSTEM Fees: $163,006.50 $ 119,548.00 PW03 1 LS @ $ 2,047.00 $2,047.00 WKOTPW 140,313 SF @ $ 0.08 $11,225.04 $13,272.04 Charges for Work by City Forces: TV Inspection for Pipe Installation PW03 3.785 LF @ $ 1.50 $5,677.50 TV Inspection for Project Acceptance PW03 3.785 LF @ $ 1.50 $5,677.50 SEWER SYSTEM SUBTOTAL $11,355.00 STORM DRAIN SYSTEM Fees: Charges for Work by City Forces: TV Inspection for Pipe installation (1701 6525) 2,490 LF @ $ 1.50 $3,735.00 TV Inspection for Project Acceptance (1701.6525) 2,490 LF @ $ 1.50 $3,735.00 STORM DRAIN SYSTEM SUBTOTAL ELECTRICAL SYSTEM To be billed separately by Electric Utility Department $0.00 $7,470.00 $0.00 TOTAL AMOUNT OF BILLING SCHEDULE $195,103.54 $119,548.00 Reimbursement Agreement 2007-52 058-030-16 (old APN 058-030-03) 18.15 Acres @ $5,735.99/Acre $104,108.22 058-030-16 (old APN 058-030-05) 3.90 Acres @ $4,832.08/Acre $18,845.11 058-030-04 $14,684.54 TOTAL DUE PRIOR TO IMPROVEMENT PLAN APPROVAL $213,193.41 Pending Reimbursement RA 1801 me 4ue-at-Pc,al-Map-Appwvai in accordance with LMC Section 17.62.060 $818,067.45 Total Fee $1,031,260.86 1 City of Lodi Publics Works Department COST ESTIMATE FOR IMPROVEMENT SECURITY Development: Gateway North, Unit No 1 Developer: FCB Homes Engineer: MCR Engineering TOTAL COST OF PROJECT IMPROVEMENTS A. DEVELOPER COST Item Doscriol leg Quanta)/ Unit Price Total Quantity otal 81 to Pram ralIon L Grading I Site Preparation, Clearing and Grubbing 19 AC 01,381,00 $26,239.00 19 526,239,00 2 Earthwork 6,000 CY 5390 $18,000.00 6,000 518,000.00 3 Lot Grading 98 EA $2,071.00 $202,958 00 98 5202,958.00 4 Basin Excavation 1 LS $150,000,00 5150,000 00 1 $150,000 00 att,D1 Irgorevemaglt 1 Aggregate Base 4" Class II 140,313 SF 50.80 $112,250 40 140,313 $112,250.40 2 Asphalt Concrete 2,5" 140,313 SF 52.00 8280,626.00 140,313 5260,626 00 3 Survey Monuments 17 EA 5828.00 514,076 00 17 514,076 00 4 Vertical Curb, Gutter, & Sidewalk 785 LF 535.00 027,475.00 785 327.475.00 5 Rall Type Curb, Gutter, & Sidewalk 6,524 LF 530.00 $195,720.00 6,524 5195,720.00 6 Sidewalk 37,821 SF 88.00 5302,568.00 37,821 5302,568 00 7 Curb Return Incl. Ramp 14 EA 53,451,00 548,314.00 14 $48,314.00 d Curb Return w/o Ramp 3 EA $1,500.00 $4,500.00 3 54,500,00 9 In -Line Ramp 6 EA 52,781.00 516,566.00 6 516,566.00 1D Concrete Driveway Apron 3 EA $2,071.00 $6,213.00 3 $6,213.00 11 Street Lights 39 EA $4,142,00 5161,530.00 39 5161,53600 12 8' Masonry Wall & Pilaster 1,260 LF 8173.00 $217,980.00 1,280 5217,98600 1:3 Signage & Striping 1 LS $15,000 00 $15,000.00 1 515,000,00 14 Erasion & Sediment Control 98 EA $200 00 $19,600 00 96 519,60000 Subtotal 51,819,623.40 Subtotal $1,819,623.40 Storm Drain 5va1er11 1 12" Storm Drain Pipe 519 LF $48.00 $24,91200 519 524,912.00 5 15" Storm Drain Pipe 1,002 LF 562,00 062,124.00 1,002 562,124,00 :3 18" Storm Drain Pipe 133 LF 57600 $10.106 00 133 $10,108 00 4 24" Storm Drain Pipe 725 LF 590.00 565,250.00 725 565,250 00 6 30" Storm Drain Pipe 111 LF $97.00 310,787.00 111 510,787,00 6 Side Inlet Catch Basin 14 EA 52,76190 $38,654.00 14 $38,654.00 '7 48" Storm Drain Manhole 9 EA $4,142.00 $37,278.00 9 $37,278.00 ,E Connect to Existing Storm Drain 2 EA $6,903.00 513,606.00 2 $13,806.00 6 Stub & Plug 1 EA $1,000,00 51,000.00 1 51,000.00 Subtotal 5263,899.00 Subtotal $263,899.00 Sanitary Sewer Sodom 8" Sanitary Sewer Pipe 1.624 LF $17.00 $27,608.00 1,624 $27,608 00 2 8" Sanitary Sewer Pipe 2,161 LF $30.00 $64,830.00 2,161 $64,830 00 3 Sanitary Sewer Manhole (48") 12 EA $3,451.00 $41,412.00 12 $41,412 00 4 Sanitary Service with Cleanout 98 EA 5621.00 560,858.00 98 $60,858.00 5 Connect to Existing Sanitary Sewer 2 EA $6,903.00 513,808.00 2 $13,806,00 Stub & Plug 1 EA 51,000,00 $1,000 00 1 $1,000 00 Subtotal $209,514 00 Subrotat $209,514 00 Water 801om 1 6" Water Pipe 210 LF $41.00 58,610,00 210 58,610.00 2 8" Water Pipe 3.995 LF $55.00 $219,725.00 3,995 $219,725.00 3 6" Gate Valve 20 EA 51,657 00 $33,140.00 20 $33,140 00 4 Fire Hydrant Assembly 8 EA 54,142.00 $33,136.00 8 $33,136 00 5 1" Water Servicew/Meter Box 98 EA $828.00 $81,144.00 98 581,14400 E Blowoff (Temporary) 1 EA $552.00 $552.00 1 $552 00 7 Blowoff (Permanent) 1 EA 51,857.00 31,657.00 1 $1,657 00 C. Connect to Existing 4 EA 56,903.00 $27,812.00 4 527,612 00 Subtotal $405,576.00 Subtotal 5405,576.00 Total $2,698,612.40 TOW' 02,698,612,40 Total Construction Cost Subject to Engineertng Fee Calculation (A, Developer Cost) Construction Engineering 5 Slaking 1% t Aa-bula Plana d Cenifcallpns TOTAL COST FOR ENGINEERING FEE CALCULATION Faithful Performance: 100% of A Labor & Materials: 100% o1 A 52,728,100,00 $2,728,100.00 $2,698,812.40 $28,986 12 $2,500.00 A. Total 52,728.100.00 Acres: 19,29 Date: 9/8/18 Lots: 98 B COST OF CITY -FUNDED FACILITIES TO BE BUILT BY DEVELOPER gpanllty Total 80.00 50 00 80 00 50 00 0.00 0.00 0.00 0.00 0.00 600 0.00 0.00 0.00 0.00 0,00 0.00 0.00 0.00 Subtotal Street System - On -Safe $0.00 10% Engineering & Administration 0.00 Total Street System $0.00 $0.00 0.00 0.00 0.00 0.00 0.00 0.06 0.00 0.00 Subtotal Storm Drain System $0 00 0% Engineering & Administration 0 0 Total Storm Drain System 80.00 Subtotal Sanitary Sewer System 10% Engineering & Administration Total Sanitary Sewer System 50.00 00.00 $0.00 0.00 0.00 0.00 80.00 0.00 00.00 $0.00 $0.00 $0.00 $0.00 00.00 00 00 0.00 00.00 Subtotal Water System 00.00 10% Engineering & Administration 0.00 Total Water System 5600 B. Total 00 00 rya EXHIBIT C n4c !r (y` -`ilio NOM: r fry of Lodi is now using the online insurance program PINS Advantage. Once you have been awarded a contract you will receive an email from the City's online Insurance program requesting you to forward the email to your insurance providers) to submit the required insurance documentation electronically Insurance Requirements for Public Improvement Agreements Developer shall not commence work under this Agreement until Developer shall have obtained all insurance required under this exhibit, nor shall Developer allow any contractor of subcontractor to commence work on Developer's contact or subcontract until all similar insurance required of the contractor or subcontractor shall have been so obtained. All requirements herein provided shall appear either in the body of the insurance policies or as endorsement and shall specifically bind the insurance carrier. Developer shall procure and maintain during the life of this Agreement such insurance as shall insure City, it's elected and appointed boards, commissions, officer, agents, employees and volunteers, Developer and any contractor or subcontractor performing work covered by this Agreement from claims for damages far personal injury, including death, as well as from claims for property damage which may arise from the Project or the Project property, including any public streets or easements, from Developers' or any contractors' or subcontractors' operations hereunder, whether such operations be by Developer or any contractor of subcontractor or by anyone directly or indirectly employed by either Developer or any contractor of subcontractor, and the amount of such insurance shall be as follows: MINIMUM SCOPE AND LIMIT OF INSURANCE Coverage shall be at least as broad as: 1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an "occurrence" basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $5,000,004 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit, 2. Automobile Liability: ISO Form Number CA 00 01 covering any auto or if Developer has no owned autos, then hired, and non - owned autos with limit no less than $5,000,000 per accident for bodily injury and property damage. 3. Workers' Compensation: as required by the State of Califomia, with Statutory Limits, and Employer's Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease 4. Professional Liability. For any consultant or other professional who will engineer or design the Public Improvements, liability insurance for errors and omissions with limits not less than $1,000,000 per occurrence, shall be procured and maintained for a period of five (5) years following completion of the Public improvements. Such insurance shall be endorsed to Include contractual liability. Other Insurance Provisions: (a) Addiljpnai Named lnsyrri i Status The City of Lodi, its elected and appointed boards, commissions, officers, agents, employees, and volunteers are to be covered as additional insureds an the CGL and auto policy with respect to liability arising out of work or operations performed by or on behalf of the Developer including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Developer's insurance (at least as broad as ISO Form CG 20 10 11 85 or if not available, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38;g CG 20 37 if a later edition is used (b) Primary and Non -Contributory insuranca Endorsement The limits of insurance coverage required may be satisfied by a combination of primary and umbrella or excess insurance. For any claims related to this contract, the Developer's insurance coverage shall be primary coverage at least as broad as I50 CG 20 01 04 13 as respects the Entity, its officers, officials, employees, and volunteers_ Any insurance or self-insurance maintained by the Entity, its officers, officials, employees, or volunteers shall be excess of the Developer's insurance and shall not contribute with it. (c) Waiver of S P ovation Developer hereby grants to City of Lodi a waiver of any right to subrogation which any insurer of said Developer may acquire against the City of Lodi by virtue of the payment of any lose under such insurance. Developer agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City of Lodi has received a waiver of subrogation endorsement from the insurer NOTE: (1) The street address of the CITY OF LODI must be shown along with (a) and (b) and (c) above: 221 West Pine Street, Lodi, California, 95240; (2) The insurance certificate must state, on its face or as an endorsement, a description of the proiect that it is insuring. (d) SeAiaga 1-I ar z-#rageMe Risk: rev. 9/202018 The term "Insured" is used severally and not collectively, but the inclusion herein of more than one insured shall not operate to increase the limit of the company's liability under the Developers commercial general liability and automobile liability policies. Notice of Cancellation or Chancre in Coverage Endorsement This policy may not be canceled nor the coverage reduced by the company without 30 days' prior written notice of such cancellation or reduction in coverage to the Risk Manager, City of Lodi, 221 West Pine St., Lodi, CA 95240. Continuity_ of_Coversge All policies shall be in effect on or before the first day of the Term of this Agreement. At least thirty (30) days prior to the expiration of each insurance policy, Developer shall furnish a certificate(s) showing that a new or extended policy has been obtained which meets the minimum requirements of this Agreement. Developer shall provide proof of continuing insurance on at least an annual basis during the Term. If Developer's Insurance lapses or is discontinued for any reason, Developer shall immediately notify the City and immediately obtain replacement insurance. Developer agrees and stipulates that any insurance coverage provided to the City of Lodi shall provide for a claims period following termination of coverage which is at least consistent with the claims period or statutes of limitations found in the California Tort Claims Act (California Government Code Section 810 et seq.). (g) Failure to Comply If Developer fails or refuses to obtain and maintain the required insurance, or fails to provide proof of coverage, the City may obtain the Insurance. Developer shall reimburse the City for premiums paid, with interest on the premium paid by the City at the maximum allowable legal rate then in effect in California. The City shall notify Developer of such payment of premiums within thirty (30) days of payment stating the amount paid, the name(s) of the insurer(s). and rate of interest. Developer shall pay such reimbursement and interest on the first (1st) day of the month following the City's notice. Notwithstanding any other provision of ttsls Agreement, if Developer falls or refuses to obtain or maintain insurance as required by this agreement, or fails to provide proof of Insurance, the City may terminate this Agreement upon such breach. Upon such termination. Developer shall immediately cease use of the Site or facilities and commence and diligently pursue the removal of any and all of its personal property from the site or facilities. (h) Verification of Coveraue Developer shall furnish the City with a copy of the policy declaration and endorsement page(s), original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Developer's obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time Failure to exercise this right shall not constitute a waiver of the City's right to exercise alter the effective date. (1) Self -Insured Retentions Soli -Insured retentions must be declared to and approved by the City. The City may require the Developer to provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City (j) Insurance Limits The limits of insurance described herein shall not limit the liability of the Developer and Deveroper's officers, employees, agents, representatives, contractors or subcontractor. Developer's obligation to defend, indemnify and hold the City and its officers, officials, employees, agents and volunteers harmless under the provisions of this paragraph is not limited to or restricted by any requirement in the Agreement for Developer to procure and maintain a policy of insurance. (k) Subcontractor Developer shall require and verify that all contractor and subcontractor maintain insurance meeting all the requirements stated herein, and Developer shall ensure that City is an additional insured on insurance required from contractors and subcontractors. (1) Qualified insurer(s) All insurance required by the terms of this Agreement must be provided by insurers licensed to do business in the State of Catfomia which are rated at least "A-, VI" by the AM Best Ratings Guide, and which are acceptable to the City. Non -admitted surplus lines carriers may be accepted provided they are included on the most recent list of California eligible surplus lines insurers (LESLI list) and otherwise meet City requirements. (m) Completed Operations Endorsement For three years after completion of the project, a certificate of insurance with a Completed Operations Endorsement, CG 20 37 07 04, will be provided to the City of Lodi. Professional Liability. For any consultant or other professional who will engineer or design the Public Improvements, liability insurance for errors and omissions with limits not less than $1,000,000 per occurrence, shall be procured and maintained for a period of five (5) years following completion of the Public Improvements. Such insurance shall be endorsed to include contractual liability. Page 2 f of 2 pages 1 Risk rev, 9/202018 CITY OF LODI COUNCIL COMMUNICATION AGENDA ITEM TM AGENDA TITLE: Reschedule Council Action to Adopt Resolution Authorizing City Manager to Execute Improvement Agreement for Gateway North Subdivision, Unit No. 1, Tract No. 3940 for April 17, 2019 MEETING DATE: March 12, 2019 PREPARED BY: Public Works Director RECOMMENDED ACTION: Reschedule Council Action to adopt resolution authorizing City Manager to execute Improvement Agreement for Gateway North Subdivision, Unit No. 1, Tract No. 3940 for April 17, 2019. BACKGROUND INFORMATION: Gateway North Subdivision, Unit No. 1, is located west of Lower Sacramento Road and south of Lodi Shopping Center, as shown on Exhibit A, Unit No. 1 consists of 98 single-family, residential lots. Blossom Land Company, a California corporation (Applicant), advises it will be presenting the final map for approval at a later date. However, as of this date, the Tentative Subdivision Map and the Planning Commission resolution approving the map (No. 17-20) are in the name of FCB Homes, not Blossom Land Company, creating an inconsistency as to the entity that should be entering into the proposed improvement agreement. The application for the improvement agreement does not show the Applicant's right to control the property and is therefore incomplete. Staff became aware of this inconsistency in preparation for this hearing. Furthermore, Staff received a letter from legal counsel for Frontier Land Company demanding that the City process the improvement agreement in accordance with Government Code Section 66456.2(a) which requires the City process the improvement plan within 60 days of submittal. There are two problems with the demand. First, the demand is submitted by neither a party that is the applicant on the improvement plan nor the party that holds the right to develop under the Tentative Subdivision Map. Second, and more importantly, the timeline does not include returns of the improvement plan to the Applicant for correction. Unfortunately for Applicant, recent statements made by their legal counsel on the Applicant's behalf require the improvement plan be returned for additional correction. Tom Doucette, on behalf of Applicant, informed City staff orally, that in his and his legal counsel's opinions Applicant is not liable to reimburse anyone for the water, wastewater, storm and street improvements that benefit the Applicant. Indeed Applicant has opined that the City may be solely responsible for the cost of those improvements. At this time, Applicant has no vested right to connect to the offsite improvements listed above; as such, if Applicant's allegation is correct, the City would not allow Applicant to connect to the improvements. Therefore, the application must be returned as insufficient. Staff does not recommend making the above changes on the fly. However, should Council desire to take action on the improvement agreement today, staff sets forth below a number of revisions that could address the above concerns both here and in the attached improvement agreement. its APPROVED: [y Stephen Schwabauer, ity Manager K:\WP\DEV_SERV\Developments\Lodi Southwest Gateway\Gateway North\Improvement Agreement\C_ImpAgmt_Unit 1.doc 3/11/2019 Reschedule Council Action to Adopt Resolution Authorizing City Manager to Execute Improvement Agreement for Gateway North Subdivision, Unit No. 1, Tract No. 3940 for April 17, 2019 March 12, 2019 By way of background, this project is inside the Area of Benefit of Reimbursement Agreement RA18-01 (Lodi Shopping Center) which is currently in the approval process. Developer will be responsible for the reimbursement payment in accordance with Lodi Municipal Code §17.62.060. The project includes the installation of all interior subdivision public improvements and street improvements on Lower Sacramento Road from the southerly Lodi Shopping Center Driveway to its southerly boundary of the single-family home development (270 linear feet). Applicant has requested to execute a separate improvement agreement to design and construct the Lower Sacramento Road public improvements in order to expedite construction of the other site improvements. City staff has deemed this a reasonable request and included a condition requiring that the Lower Sacramento Road public improvements be completed prior to final acceptance of the Gateway North, Unit No. 1, Project. Given Applicant's current legal position, staff no longer recommends City enter into separate improvement agreements. Applicant has furnished the City with improvement plans, necessary agreements, guarantees, insurance certificates, and the required fees for the proposed subdivision (except the required payment for vacating the existing real property and easement where the domestic and industrial waste outfall lines were previously located). Development Impact Fees will be collected as part of the building permit process, prior to issuing a certificate of occupancy, for each single-family residence, in accordance with Lodi Municipal Code §15.64.040. This project is part of the Community Facilities District No. 2007-1 (Public Services) (CFD). Portions of the cost to install certain offsite public improvements that benefit other properties may be eligible for reimbursement from others. It is Applicant's responsibility to request reimbursement and submit the appropriate information per Lodi Municipal Code Chapter §17.62. This item was rescheduled for consideration at the February 6, 2019 Council meeting to March 12, 2019 concurrent with the continued public hearing to consider adopting a resolution to authorize the City Manager to execute Reimbursement Agreement RA -18-01, for public improvements constructed with the Lodi Shopping Center. If Council desires to go forward today, staff recommends adding the following language / conditions to the attached improvement agreement that was submitted to Council for consideration at the February 6, 2019 meeting to address the issues raised in this staff report. These additions are summarized below: 1) Identify the correct applicant. 2) Language clarifying Applicant will be responsible for purchasing the real property and easement underlying the existing domestic and industrial waste sewer outfall pipelines upon final map approval from the City of Lodi at a price set by a mutually agreed appraiser. The vacation of this property shall be in accordance with the appropriate provisions of the Streets and Highways Code of the State of California. This requirement was to be included as a condition of final map approval at a later date, however, staff recommends including this condition as part of the improvement agreement being considered with this Council action due to the legal position recently proffered by Applicant. 3) Language clarifying the developer shall pay Zone 2 Storm Drain Impact fees in accordance with Resolution 2013-184 adopted by Council on October 16, 2013. This action requires the KAWP\DEV_SERV\Developments\Lodi Southwest Gateway\Gateway North\Improvement Agreement\C_ImpAgmt_Unit 1 doc 3/11/2019 Reschedule Council Action to Adopt Resolution Authorizing City Manager to Execute Improvement Agreement for Gateway North Subdivision, Unit No. 1, Tract No. 3940 for April 17, 2019 March 12, 2019 appropriate storm drain impact fee be collected for each development in Zone 2 that does not construct its fair share of permanent storm drain improvements. This development has not constructed its fair share of storm drain improvements and is subject to the actual storm drain fee in effect at the time of payment unless Applicant pays all costs allocated to Developer in RA -18- 01 in accordance with LMC Section 17.62.060. 4) Increased the security amounts for the Faithful Performance and Labor and Materials bonds by the allocation amount ($818,067.45) proposed to be assigned by RA -18-01 to the benefitting parcels within the Gateway North Unit No 1 Subdivision. The increase in security amounts is needed to protect the City in the event Applicant does not pay the costs proposed to be allocated by RA -18-01. Language indemnifying the City from any and all costs incurred by or imposed upon the City of Lodi associated with the construction of any and all public infrastructure (Including but not limited to industrial and domestic wastewater mains, storm drain) not otherwise covered by the Storm Impact Fee Program, and Street Improvements, that benefits or serve the Gateway North Unit No. 1 Subdivision (Tract 3940). This additional language is needed to prevent Applicant from benefitting from improvements that Applicant suggests the city is solely responsible to pay for. FISCAL IMPACT: There will be an increase in long-term maintenance costs for public infrastructure and City services such as police, fire, and parks, and open space maintenance. This cost will be partially offset by proceeds from the CFD. FUNDING AVAILABLE: Not applicable. Charles E. Swimley, Jr Public Works Director Prepared by Lyman Chang, City Engineer/Deputy Public Works Director CES/LC/tdb Attachments cc: City Attorney Magdich City Engineer / Deputy Public Works Director Chang Senior Civil Engineer Nathan Assistant Civil Engineer Kiriu Senior Engineering Technician Wiman Blossom Land Company MCR Engineering Browman Development Company K:\WP\DEV_SERV\Developments\Lodi Southwest Gateway\Gateway North\Improvement Agreement\C_ImpAgmt_Unit 1.doc 3/11/2019 Gateway North Subdivision Unit 1 Boundary EXHIBIT A GATEWAY NORTH SUBDIVISION UNIT 1 VICINITY MAP s 1 inch = 300 feet Path: K:\WP\DEV_SERV\Developments\Lodi Southwest Gateway\Gateway North\Improvement Agreement\C_ExhibitA.mxc RESOLUTION NO. 2019- A RESOLUTION OF THE LODI CITY COUNCIL AUTHORIZING THE CITY MANAGER TO EXECUTE AN IMPROVEMENT AGREEMENT FOR GATEWAY NORTH SUBDIVISION, UNIT NO. 1, TRACT NO. 3940 WHEREAS, Gateway North Subdivision, Unit No. 1, is located west of Lower Sacramento Road and south of Lodi Shopping Center; and WHEREAS, Unit No. 1 consists of 98 single-family residential lots; and WHEREAS, the developer, Blossom Land Company (Developer), will present the final map for approval at a later date; and WHEREAS, the project includes the installation of all interior subdivision public improvements and street improvements on Lower Sacramento Road from the southerly Lodi Shopping Center Driveway to its southerly boundary of the single-family home development (270 linear feet); and WHEREAS, Developer has furnished the City with improvement plans, necessary agreements, guarantees, insurance certificates, and the required fees for the proposed subdivision; and WHEREAS, Development Impact Fees will be collected as part of the building permit process prior to issuing a certificate of occupancy for each single-family residence, in accordance with Lodi Municipal Code Section 15.64.040. NOW, THEREFORE, BE IT RESOLVED that the Lodi City Council does hereby authorize the City Manager to execute the Improvement Agreement for the Public Improvements of Gateway North, Unit No. 1, Tract No. 3940, attached hereto as Exhibit A, and made a part hereof. Dated: March 12, 2019 I hereby certify that Resolution No. 2019- was passed and adopted by the City Council of the City of Lodi in a regular meeting held March 12, 2019, by the following vote: AYES: COUNCIL MEMBERS — NOES: COUNCIL MEMBERS — ABSENT: COUNCIL MEMBERS — ABSTAIN: COUNCIL MEMBERS — 2019 - JENNIFER M. FERRAIOLO City Clerk WHEN RECORDED, RETURN TO: City Clerk City of Lodi 221 West Pine Street Lodi, CA 95240 IMPROVEMENT AGREEMENT for the PUBLIC IMPROVEMENTS of GATEWAY NORTH, UNIT NO.1 TRACT NO. 3940 THIS AGREEMENT is made and entered into by and between the CITY OF LODI, a California municipal corporation, hereinafter referred to as "City', and Blossom Land Company, a California corporation, hereinafter referred to as "Developer". RECITALS: Developer is the developer of that certain real property situated in the City of Lodi, County of San Joaquin, commonly known as Parcels 2 and 3 (A.P.Ns.: 058-03-016 AND 058-03-040) and more particularly described in Exhibit A, attached hereto and incorporated herein. Developer will present to City for approval the final subdivision maps based on the Tentative Map approved by the Lodi Planning Commission on December 13, 2017, pursuant to Planning Commission Resolution No. 17-20, entitled "Gateway North". Developer will present a final subdivision map titled "Gateway North, Unit No. 1" for a portion of the Gateway North subdivision, hereinafter called "Map," the Map will be filed with the Public Works Director for presentation to the City Council for approval at a later date and is therefore not attached; Developer has requested approval of the improvement plans (Plan Set D181) prior to the final approval of the Map. The public improvement plans include all streets, highways or public ways, and public utilities and facilities which are a part of, or appurtenant to, the Gateway North, Unit No. 1 Subdivision, hereinafter called "Project," all in accordance with, and as required by, the plans and specifications for all or any of said improvements in, appurtenant to, or outside the limits of Project, which plans and specifications are now on file in the office of and endorsed with the approval of the Public Works Director or his designee; Developer acknowledges that a subsequent improvement agreement will be required for the Lower Sacramento Road improvements prior to final approval of the Map; City Council will adopt a resolution to approve the Map and accept the dedications therein offered at a later date on the condition that Developer will first enter into and execute this Agreement with City and meet the requirements of the Resolution; and This Agreement is executed pursuant to the provisions of the Subdivision Map Act of the State of California and Titles 15 and 17 of the Lodi Municipal Code ("LMC"). NOW THEREFORE, for and in consideration of the acceptance of the dedications offered, and in order to insure satisfactory performance by Developer of Developer's obligations under State law and City Code, the parties agree as follows: 1. Performance of Work by Developer Developer will do and perform, or cause to be done and performed at Developer's own expense, in a good and workmanlike manner, and furnish all required materials, all under the direction and to the satisfaction of City's Public Works Director, all of the work and improvements as shown on the approved improvement plans for the Project, Plan Set D181, which is on file in the Public Works Department. The Developer shall also perform or cause to be performed the following items which are not shown on the improvement plans: J:\CM\Linda\Council Communications\SHIRTSLEEVE\ImpAgmt Gateway North Unit 1 march 12_2019_DSS CLEAN Finalca pw doc 1 3/11/2019 A. Street light installation and connection to City system; B. Street frontage improvements on Lower Sacramento Road (by separate agreement); C. Natural gas line installation; D. Telephone line installation; E. Electrical system; and F. Cable television system. 2. Development Changes Developer shall also perform all work and furnish all materials necessary to comply with any changes required by the Public Works Director, which, in his opinion, are necessary or required to complete the work in conformance with City Standards or are the result of changed conditions. 3. Performance of Work by City Prior to the approval of the final map by the City, it is agreed that the Developer shall deposit with the City the amount of money shown as the "Developer Cost" on the Billing Schedule, attached hereto as Exhibit B, attached hereto and incorporated herein. From payments made under the Billing Schedule, Developer elects to have the City perform or install or cause the installation of the following items: A. Street seal coat; B. Televideo inspection of the public sewer and storm drain lines. The fee shown on the Billing Schedule is based on the linear footage of sewer and storm drain pipe, including laterals, shown on the improvement plans. The fee will be adjusted, if necessary, when the televideo inspection is complete. Any additional fee must be paid prior to Project acceptance; and C. Storm Water Permit Compliance Inspections. The fee shown on the Billing Schedule is based on one (1) inspection per month for construction activities covering twelve months period. The fee will be adjusted, if necessary, when the improvements are complete and ready for acceptance by the City. Any additional fee must be paid prior to Project acceptance. Developer shall also pay all additional costs for work performed by City deemed by the Public Works Director necessary to complete the work under this Agreement in conformance with City Standards. Developer shall be responsible for purchasing the real property and easement underlying the City's pipeline easement through a portion of the property, as shown on Exhibit A, upon final map approval from the City of Lodi at a price set by a mutually agreed appraiser. The vacation of this property shall be in accordance with the appropriate provisions of the Streets and Highways Code of the State of California. 4. Development Impact Mitigation Fees Development Impact Mitigation Fees for water, wastewater capacity, street improvements, storm drain, police, fire, parks and recreation, general City facilities, and art in public places are required for this Project. Payment of the Development Impact Mitigation Fees shall be collected prior to issuance of the Certificate of Occupancy for each dwelling. The amounts shown in this Agreement for the Development Impact Mitigation Fees are those in effect at the time of execution of this Agreement. In conformance with LMC Section 15.64.050, the fees are automatically adjusted on January 1St of each year. Fees may also be adjusted at other times by separate City Council action. The actual fees to be paid will be those in effect at the time of payment. This J:\CM\Linda\Council Communications\SHIRTSLEEVE\ImpAgmt Gateway North Unit 1 march 12_2019_DSS CLEAN Finalca.pw.doc 2 3/11/2019 Agreement shall in no way limit City's ability to charge Developer the fees in effect at the time Developer pays the fees. The Gateway North Unit No. 1 Subdivision (Tract No. 3940) is located in Zone 2 of the City's Storm Drain Impact Fee Program. In accordance with Resolution 2013-184, the appropriate storm drain impact fee shall be collected for each development in Zone 2 that does not construct its fair share of permanent storm drain improvements. This development has not constructed its fair share of storm drain improvements and is subject to the actual storm drain fee in effect at the time of payment unless developer pays all costs allocated to Developer in RA -18-01 in accordance with LMC Section 17.62.060. 5. Reimbursement to Others Developer acknowledges that the City Council will adopt RA 18-01 at a public hearing currently scheduled for April 17, 2019 (Resolution No. 2019-). Developer agrees to pay all costs allocated to Developer in RA 18-01 in accordance with LMC §17.62.060. Developer may be eligible for reimbursement from others for the cost of certain off-site public improvements that benefit other properties. It is Developer's responsibility to request reimbursement and submit the appropriate information per LMC Section 17.62. 6. Work: Time for Commencement and Performance Developer shall, within 365 calendar days from the date of this Agreement, perform or cause to be performed, all work and/or improvements described in this Agreement. At least 15 calendar days prior to the commencement of work hereunder, Developer shall notify the Public Works Director of the date fixed by Developer for commencement thereof, so that City can provide inspection services. 7. Time Extension Time is of the essence of this Agreement. City may extend the time for completion of the improvements hereunder, under the terms of an addendum to this Agreement, which shall be approved and executed by the City Manager. Any such extension may be granted without notice to Developer's surety, and extensions so granted, shall not relieve the surety's liability on the bond to secure the faithful performance of Developer under this Agreement. The City Manager shall make the sole and final determination as to whether or not good cause has been shown to entitle Developer to an extension. 8. Record Drawings and CertificEdions Prior to acceptance of the Project improvements, Developer shall have installed and put in place, all survey monuments as shown on the Map and provide record drawings and certifications as described in the City of Lodi Public Improvement Design Standards. 9. Permits; Compliance with Law Developer shall, at Developer's expense, obtain all necessary permits and licenses for the construction of the improvements described in this Agreement, give all necessary notices, and pay all fees and taxes required by law. 10. Superintendence by Developer Developer shall give personal superintendence to the Project, or have a competent agent, foreman or superintendent, satisfactory to the Public Works Director, on the Project work site at all times during construction, with authority to act for Developer. 11 Inspection by City Developer, shall at all times, maintain proper facilities and provide safe access for inspection by City to all parts of the work site. Inspections will be provided during normal working hours of City staff. Developer will be billed for inspections on work performed on weekends, holidays and overtime. Developer shall also pay all additional costs incurred J:\CM\Linda\Council Communications\SHIRTSLEEVE\ImpAgmt Gateway North Unit 1 march 12_2019_DSS CLEAN.Finalcapw.doc 3 3/11/2019 by City for soils and materials testing and/or inspection services, including storm water compliance inspections, required as a part of City inspection activities. 12. Contract Security Concurrently with the execution of this Agreement, Developer shall furnish Improvement Security of at least 100 percent of the estimated cost of the public improvements required to be constructed, or have already been constructed, plus deferred fees and engineering costs of surveying, record drawings and certifications as security for the faithful performance of this Agreement; and an amount equal to at least 100 percent of the above costs, excluding deferred fees, as security for the payment of all persons performing labor and furnishing materials in connection with this Agreement as more fully described in the State Subdivision Map Act. The City has determined these security amounts to be as follows: Faithful Performance: Labor and Materials: $ 3,546,167.45 $ 3,546,167.45 13. Warranty Security Prior to acceptance of the Project improvements by City, Developer shall furnish warranty security of at least 10 percent of the total cost of the public improvements required to be constructed, as security for repair or replacement of defective work as provided under Paragraph 17 of this Agreement. The warranty period shall be two years following the date of acceptance of the improvements by City. If any portion of the Project receives partial acceptance during the course of construction, the warranty period for all required Project improvements shall commence upon the date of final acceptance for the entire Project. 14. Indemnity and Hold -Harmless Agreement Except for the gross negligence or willful misconduct of an Indemnitee (as hereinafter defined), the Developer hereby assumes liability for and agrees to defend (at Indemnitees' option), indemnify, protect and hold harmless City and its elected and appointed boards, commissions, officers, agents, volunteers, and employees ("Indemnitees") from and against any and all claims, charges, damages, demands, actions, proceedings, losses, stop notices, costs, expenses (including attorney fees), judgments, civil fines and penalties, liabilities of any kind or nature whatsoever, which may be sustained or suffered by or secured against the Indemnitees arising out of or encountered in connection with this Agreement of the performance of the Project including, but not limited to, death of or bodily or personal injury to persons or damage to property, including owned by or under the care and custody of City, and for civil fines and penalties, that may arise from or be caused, in whole or in part, by any negligent or other act or omission of Developer, its officers, agents, employees, contractors or subcontractors including, but not limited to, liability arising from: A. Any dangerous, hazardous, unsafe or defective condition of, in or on the premises, of any nature whatsoever, which may exist by reason of any act, omission, neglect, or any use or occupation of the Project site by Developer, its officers, agents, employees, contractors or subcontractors; B. Any operation conducted upon or any use or occupation of the premises by Developer, its officers, agents, employees, contractors or subcontractors under or pursuant to the provisions of this Agreement or otherwise; C. Any act, omission, or negligence of Developer, its officers, agents, employees, contractors or subcontractors. J:\CM\Linda\Council Communications\SHIRTSLEEVE\ImpAgmt Gateway North Unit 1 march 12_2019_DSS CLEAN.Finalca.pw.doc 4 3/11/2019 D. Any failure of Developer, its officers, agents or employees to comply with any of the terms or conditions of this Agreement or any applicable federal, state, regional, or municipal law, ordinance, rule or regulation; and E. The conditions, operations, uses, occupations, acts, omissions or negligence referred to in sub -sections (1), (2), (3), and (4) of this paragraph, existing or conducted upon or arising from the use or occupation by Developer on any other premises in the care, custody and control of City. F. Any and all costs incurred by or imposed upon the City of Lodi associated with the construction of any and all public infrastructure (including but not limited to industrial and domestic wastewater mains, and storm drain) not otherwise covered by the Storm Impact Fee Program, and Street Improvements, that benefit or serve the Gateway North Unit No. 1 Subdivision (Tract 3940). In the event Developer does not reimburse City for the above improvements, Developer shall have no right to hook into the public infrastructure and will be required to submit a revised Tentative Map showing an alternative design to provide for public infrastructure necessary to serve the Project. The Developer also agrees to indemnify City and pay for all damage or loss suffered by City including but not limited to damage to or loss of City property, to the extent not insured by City and loss of City revenue from any source, caused by or arising out of the conditions, operations, uses, occupations, acts, omissions or negligence referred to in sub -sections (1), (2), (3), (4), and (5) of this paragraph. Developer's obligations under this Section apply regardless of whether or not such claim, charge, damage, demand, action, proceeding, loss, stop notice, cost, expense, judgment, civil fine or penalty, or liability was caused in part or contributed to by an Indemnitee. However, without affecting the rights of City under any provision of this Agreement, Developer shall not be required to indemnify and hold harmless City for liability attributable to the active negligence of City, provided such active negligence is determined by agreement between the parties or by the findings of a court of competent jurisdiction. In instances where City is shown to have been actively negligent and where City's active negligence accounts for only a percentage of the liability involved, the obligation of Developer will be for that entire portion or percentage of liability not attributable to the active negligence of City. Developer agrees to obtain executed indemnity agreements with provisions identical to those set forth in this paragraph from each and every contractor or subcontractor or any other person or entity involved by, for, with or on behalf of Developer in the performance of this Agreement. In the event Developer fails to obtain such indemnity obligations from others as required here, Developer agrees to be fully responsible according to the terms of this paragraph. Failure of City to monitor compliance with these requirements of this paragraph imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. This obligation to indemnify and defend City as set forth here is binding on the successors, assigns or heirs of Developer and shall survive the termination of this Agreement or this paragraph. This Indemnity shall survive termination of the Agreement. This Indemnity is in addition to any other rights or remedies that the Indemnitees may have under the law or under any other contract or agreements. In the event of any claim or demand made against any party which is entitled to be indemnified hereunder, City may, in its sole discretion, reserve, retrain or apply any monies owing to the Developer under this Agreement, if any, for the purpose of resolving such claims; provided, however, City may release such funds if the Developer provides City with reasonable assurance of protection of the Indemnitees' J:\CM\Linda\Council Communications\SHIRTSLEEVE\ImpAgmt Gateway North Unit 1 march 12_2019_DSS CLEAN.Finalca.pw doc 5 3/11/2019 interests. City shall, in its sole discretion, determine whether such assurances are reasonable. 15. Developer's Insurance Developer shall not commence work under this Agreement until Developer shall have obtained all insurance required under this paragraph, nor shall Developer allow any contractor or subcontractor to commence work on Developer's behalf or request until all similar insurance required of the contractor or subcontractor shall have been so obtained and approved by the City's Risk Manager. All requirements herein provided shall appear either in the body of the insurance policies or as endorsements and shall specifically bind the insurance carrier. Insurance requirements are set forth in Exhibit C, attached hereto and incorporated herein. 16. Title to Improvements Title to, and ownership of, all public improvements constructed hereunder by Developer shall vest absolutely in City upon completion and acceptance of such public improvements by City. 17. Repair or Reconstruction of Defective Work If, within a period of two (2) years after final acceptance by City of the work performed under this Agreement, any structure or part of any structure furnished and/or installed or constructed, or caused to be installed or constructed by Developer, or any of the work done under this Agreement, including the mitigation measures for dust and erosion control, fails to fulfill any of the requirements of this Agreement plans and specifications referred to herein, Developer and Developer's surety shall, without delay and without cost to City, repair, replace or reconstruct any defective or otherwise unsatisfactory part or parts of the work or structure. Should Developer or Developer's surety fail to act promptly or in accordance with this requirement, or should the exigencies of the case require repairs or replacements to be made before Developer can be notified, City may, at its option, make the necessary repairs or replacements or perform the necessary work, and Developer shall pay to City the actual cost of such repairs plus 15 -percent for administration and overhead costs. 18. Landscape Maintenance Developer shall perform regular maintenance on landscape elements, including plants and irrigation systems installed with the Project for a period of two (2) years after the final acceptance by City. Should Developer or Developer's surety fail to act promptly or in accordance with this requirement, or should the exigencies of the case require maintenance to be performed before Developer can be notified, City may, at its option, perform the necessary maintenance work, and Developer shall pay to City the actual cost of such repairs plus 15 -percent for administration and overhead costs. 19. Repair or Replacement of City -Owned Bypass Meter Assemblies Developer is required by City to install bypass meter assemblies in conjunction with the installation of water mains in the City of Lodi. City will supply these assemblies upon receipt of a deposit in the amount of $5,263 for each assembly required. The purpose of the deposit is to guarantee the return of the assembly in good condition and fulfillment of the other obligations shown in the City's Policies and Procedures entitled "Metering Water Usage of New Water Mains Requiring Temporary Bypasses." 20. Mud. Debris, Dust and Erosion Developer agrees and covenants not to permit mud or other debris to be tracked from the Project site or elsewhere onto City or County streets or onto private property without express permission. Developer further agrees not to cause damage to City or County streets. J:\CM\Linda\Council Communications\SHIRTSLEEVE\ImpAgmt Gateway North Unit 1 march 12_2019_DSS CLEAN Finalca.pw.doc 6 3/11/2019 Should any mud or debris be deposited in City or County streets or any damage is caused to City or County streets, Developer shall have the same removed or repaired forthwith, and if not removed or repaired upon notice within a specified time, City shall cause the same to be removed or repaired and Developer shall be charged for the cost of said removal or repairs. Developer, Developer's contractor, subcontractors, and/or agents shall be responsible for dust and erosion problems created during construction, including installation of telephone, electrical, cable television and gas facilities. Developer's responsibility for dust and erosion control shall extend to include a period of two years from the date of final acceptance by City of the work performed under this Agreement. If a dust or erosion problem arises during Project construction or within a period of two (2) years from the date of final acceptance by City of the work performed under this Agreement, including but not limited to installation of telephone, electrical, cable television, and/or gas facilities, and has not, after notice, been abated by Developer within a specified period of time, City shall cause the same to be controlled, and Developer shall be charged with the cost of said control. 21. Fire Protection During Construction Fire protection facilities approved by City's Fire Chief, including all-weather access road and an approved water supply capable of supplying the required fire flow, shall be installed and made serviceable in accordance with the City Fire Code (as set forth in the Lodi Municipal Code) prior to and during the time of Project construction. The above may be modified when alternate methods of protection approved by the Fire Chief are provided. 22. Protection of Existing improvements Damage to any existing improvements, private or public utility lines installed or undergoing installation in which damage occurs during the onsite and offsite construction required of Developer under this Agreement, shall be the absolute responsibility and liability of Developer. In other words, it shall be Developer's responsibility to pay for damage to existing improvements and public or private utilities within the Project property. Damage to any existing facilities outside the limits of the Project damaged as part of the construction of the required Project improvements is also Developer's responsibility. 23. Dwelling Occupancy, City will not allow occupancy of any building or structure within the area of the Map until all deferred fees have been paid, public improvements have been approved and accepted by the Public Works Department per established City policy and other requirements of City codes have been met. If building is started prior to acceptance of the improvements, it is Developer's responsibility to inform all prospective purchasers that occupancy will not be permitted until said deferred fees are paid and public improvements are so accepted by City. 24. Developer Not Agent of City Neither Developer nor any of Developer's agents, contractors, or subcontractors are or shall be considered to be agents of City in connection with the performance of Developer's obligations under this Agreement. 25. Notice of Breach and Default If Developer refuses or fails to obtain prosecution of the work, or any severable part thereof, with such diligence as will insure its completion within the time specified, or any extensions thereof, or fails to obtain completion of said work within such time, or if Developer should be adjudged bankrupt, or Developer should make a general assignment for the benefit of Developer's creditors, or if a receiver should be appointed in J:\CM\Linda\Council Communications\SHIRTSLEEVE\ImpAgmt Gateway North Unit 1 march 12_2019_DSS CLEAN.Finalca.pw.doc 7 3/11/2019 the event of Developer's insolvency, or if Developer or any of Developer's contractors, subcontractors, agents, or employees, should violate any of the provisions of this Agreement, the Public Works Director or City Council may serve written notice upon Developer and Developer's surety of breach of this Agreement, or any portion thereof, and the default of Developer. 26. Breach of Agreement, Performance by Surety or City In the event of any breach of this Agreement, Developer's surety shall have the duty to take over and complete the work and the improvements as herein specified; provided however, that if the surety, within five (5) days after the serving upon it of such notice of breach, does not give City written notice of its intention to take over the performance of this Agreement, and does not commence performance thereof within five (5) days after notice to City of such election, City may take over the work and prosecute the same to completion, by contract or by any other method City may deem advisable, for the account and at the expense of Developer, and Developer's surety shall be liable to City for any excess cost or damage occasioned City thereby; and, in such event, City, without liability for so doing, may take possession of, and utilize in completing the work, such materials, appliances, plant and other property belonging to Developer as may be on the site of the work and necessary therefor. 27. This Agreement shall run with the land and be binding on the Developer, its heirs, successors and assigns. 28. No Vesting. Nothing is this Agreement will vest Developer against conditions or requirements being added to the Map at the time of its approval. 29. Notices. All notices herein required shall be in writing, signed by the authorized representative of the sender and shall be deemed to have been given when the same is personally served or upon receipt by express or overnight delivery, postage prepaid, or three (3) days from the time of mailing if sent by first class or certified mail, postage prepaid, addressed to the respective parties. Notices required to be given to City shall be addressed as follows: Charles E. Swimley, Jr. Public Works Director City of Lodi 221 West Pine Street P. 0. Box 3006 Lodi, CA 95241-1910 Notices required to be given to Developer shall be addressed as follows: Thomas P. Doucette President Blossom Land Company 10100 Trinity Parkway, Suite 420 Stockton, CA 95219 J:\CM\Linda\Council Communications\SHIRTSLEEVE\ImpAgmt Gateway North Unit 1 march 12_2019_DSS CLEAN Finalca.pw.doc 8 3/11/2019 Notices required to be given to Surety shall be addressed as follows. Provided that either party or the surety may change such address by notice in writing in the manner set forth above, to the other party and thereafter notices shall be addressed and transmitted to the new address. 30. Authority The undersigned hereby represent and warrant that they are authorized by the party they purport to represent to execute this Agreement. [The balance of this page is intentionally left blank.] J:\CM\Linda\Council Communications\SHIRTSLEEVE\ImpAgmt Gateway North Unit 1 march 12_2019_DSS CLEAN Finalca.pw.doc 9 3/11/2019 31. Execution In Witness Whereof, Developer and City have caused their names and corporate seals to be hereunto affixed. BLOSSOM LAND COMPANY, a California corporation Dated: By: THOMAS P. DOUCETTE President (CORPORATE SEAL) CITY OF LODI, a California municipal corporation Dated By: STEPHEN SCHWABAUER City Manager ATTEST JENNIFER M. FERRAIOLO City Clerk (CORPORATE SEAL) APPROVED AS TO FORM: JANICE D. MAGDICH City Attorney J:\CM\Linda\Council Communications\SHIRTSLEEVE\ImpAgmt Gateway North Unit 1 march 12_2019_DSS CLEAN.Finalca.pw.doc 10 3/11/2019 EXHIBIT A Order Number: 0192-5663216 Paye Number: 9 LEGAL DESCRIPTION Real property In the City of Lodl , County of San Joaquin, State of California, described as follows: PARCEL 1: THE NORTH HALF OF THE NORTHWEST QUARTER OF SECTION 15, TOWNSHIP 3 NORTH, RANGE 6 EAST, MOUNT DIABLO BASE AND MERIDIAN. EXCEPT THEREFROM: (1) THAT PORTION DESCRIBED IN THE DEED TO THE STATE OF CALIFORNIA RECORDED FEBRUARY 16, 1972 IN BOOK 3620 OF OFFICIAL RECORDS, PAGE 118, SAN JOAQUIN COUNTY RECORDS. (2) A PORTION OF THE NORTH HALF OF THE NORTHWEST QUARTER OF SECTION 15, TOWNSHIP 3 NORTH, RANGE 6 EAST, MOUNT DIABLO BASE AND MERIDIAN, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE INTERSECTION OF THE SOUTH UNE OF THE NORTH HALF OF SAID NORTHWEST QUARTER AND THE WEST LINE OF LOWER SACRAMENTO ROAD (80 FEET WIDE); THENCE WESTERLY ALONG SAID SOUTH UNE, 735.50 FEET; THENCE NORTHERLY, PARALLEL TO THE EAST UNE OF SAID NORTHWEST QUARTER, 1271 FEET, MORE OR LESS, TO THE SOUTH LINE OF HIGHWAY 12, AS DESCRIBED IN DEED RECORDED FEBRUARY 16, 1972 IN BOOK 3620 OF OFFICIAL RECORDS, PAGE 118, SAN JOAQUIN COUNTY RECORDS; THENCE EASTERLY ALONG THE SOUTH UNE OF SAID HIGHWAY 12, 735.50 FEET TO THE WEST UNE OF LOWER SACRAMENTO ROAD; THENCE SOUTHERLY ALONG SAID WEST UNE, 1271 FEET, MORE OR LESS, TO THE POINT OF BEGINNING. (3) A PORTION OF THE NORTH HALF OF THE NORTHWEST QUARTER OF SECTION 15, TOWNSHIP 3 NORTH, RANGE 6 EAST, MOUNT DIABLO BASE AND MERIDIAN, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE INTERSECTION OF THE SOUTH UNE OF THE NORTH HALF OF SAID NORTHWEST QUARTER AND THE WEST LINE OF LOWER SACRAMENTO ROAD (80 FEET WIDE); THENCE WESTERLY ALONG SAID SOUTH UNE, 735.50 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 00° 03' EAST, PARALLEL WITH THE EAST UNE OF SAID NORTHWEST QUARTER SECTION, 1246.35 FEET TO THE SOUTH UNE OF KETTLEMAN LANE (100 FEET WIDE); THENCE ALONG SAID SOUTH LINE, NORTH 89° 09' 30" WEST, 546.33 FEET TO THE SOUTHERLY PROJECTION OF THE WEST LINE OF LOT 10 OF THE TAYLOR TRACT AS FILED IN VOL 3 OF MAPS AND PLATS, PAGE 47, SAN ]OAQUIN COUNTY RECORDS; THENCE RUNNING PARALLEL WITH SAID EAST UNE OF THE NORTHWEST QUARTER SECTION, SOUTH 0° 03' WEST, 1246.31 FEET TO SAID SOUTH UNE OF THE NORTH HALF OF THE NORTH HALF OF SECTION 15; THENCE ALONG SAID SOUTH LINE, SOUTH 89° 09' 15" EAST, 546.33 TO THE TRUE POINT OF BEGINNING. (4) THAT PORTION CONVEYED TO THE CITY OF LODI BY DEED RECORDED AUGUST 12, 2003 AS INSTRUMENT NO. 2003-181033, SAN JOAQUIN COUNTY RECORDS. PARCEL 2: A PORTION OF PARCEL NINE, PARCEL TEN, PARCEL ELEVEN, PARCEL THIRTEEN AND ALL OF PARCEL TWELVE, AS DESCRIBED IN THAT CERTAIN QUITCLAIM DEED RECORDED MAY 20, 1996 AS INSTRUMENT NO. 96052704, SAN JOAQUIN COUNTY RECORDS, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: First American 77de Page 9 of 21 Order Number 0192-5663216 Page Number: 10 COMMENCING AT A BOLT MARKING THE CENTER OF SECTION 15, TOWNSHIP 3 NORTH, RANGE 6 EAST, MOUNT DIABLO BASE AND MERIDIAN, ALSO BEING POINT ON THE CENTERLINE OF LOWER SACRAMENTO ROAD; THENCE SOUTH 00° 00' 33" EAST, 26.00 FEET ALONG THE NORTH -SOUTH QUARTER (N -S 1/4) SECTION LINE OF SAID SECTION 15; THENCE THE FOLLOWING FIFTEEN (150 COURSES: 1) SOUTH 89° 57' 53" WEST, 439.30 FEET; 2) ALONG AN ARC OF A TANGENT CURVE CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 1026.00 FEET, A CENTRAL ANGLE OF 25° 51' 28" AND AN ARC LENGTH OF 463.04 FEET; 3) ALONG AN ARC OF A TANGENT REVERSE CURVE CONCAVE TO THE SOUTHWEST FROM A RADIAL LINE BEARING SOUTH 25° 49' 21" WEST, HAVING A RADIUS OF 974.00 FEET, A CENTRAL ANGLE OF 00° 35' 14" AND AN ARC LENGTH OF 9.98 FEET; 4) ALONG AN ARC OF A TANGENT COMPOUND CURVE CONCAVE TO THE SOUTHEAST FROM A RADIAL LINE BEARING SOUTH 25° 14' 07 WEST, HAVING A RADIUS OF 24.00 FEET, A CENTRAL ANGLE OF 95° 26' 10" AND AN ARC LENGTH OF 39.98 FEET 5) ALONG AN ARC OF A TANGENT COMPOUND CURVE CONCAVE TO THE SOUTHEAST FROM A RADIAL LINE BEARING SOUTH 70° 12' 03" EAST, HAVING A RADIUS OF 975.00 FEET, A CENTRAL ANGLE OF 00° 12' 20" AND AN ARC LENGTH OF 3.50 FEET; 6) NORTH 70° 24' 23" WEST, 50 FEET; 7) ALONG AN ARC OF A CURVE CONCAVE TO THE SOUTHWEST FROM A RADIAL UNE BEARING NORTH 70° 24' 23" WEST, HAVING A RADIUS OF 24.00 FEET, A CENTRAL ANGLE OF 90° 16' 50" AND AN ARC LENGTH OF 37.82 FEET; 8) ALONG AN ARC OF A TANGENT COMPOUND CURVE CONCAVE TO THE SOUTH FROM A RADIAL LINE BEARING SOUTH 19° 18' 47" WEST, HAVING A RADIUS OF 966.00 FEET, A CENTRAL ANGLE OF 36° 47' 59" AND AN ARC LENGTH OF 620.44 FEET; 9) ALONG AN ARC OF A TANGENT COMPOUND CURVE CONCAVE TO THE SOUTHEAST FROM A RADIAL LINE BEARING SOUTH 17° 29' 12" EAST, HAVING A RADIUS OF 24.00 FEET, A CENTRAL ANGLE OF 92° 45' 34" AND AN ARC LENGTH OF 38.86 FEET; 10) SOUTH 69° 45' 14" WEST, 50.00 FEET; 11) ALONG AN ARC OF A CURVE CONCAVE TO THE SOUTHWEST FROM A RADIAL LINE BEARING SOUTH 69° 45' 14" WEST, HAVING A RADIUS OF 975.00 FEET, A CENTRAL ANGLE OF 00° 27' 35" AND AN ARC LENGTH OF 7.82 FEET; 12) ALONG AN ARC OF A TANGENT COMPOUND CURVE CONCAVE TO THE SOUTHWEST FROM A RADIAL LINE BEARING SOUTH 69° 17' 39" WEST, HAVING A RADIUS OF 24.00 FEET, A CENTRAL ANGLE OF 92° 43' 09" AND AN ARC LENGTH OF 38.84 FEET; 13) ALONG AN ARC OF A TANGENT COMPOUND CURVE CONCAVE TO THE SOUTHEAST FROM A RADIAL LINE BEARING SOUTH 23° 25' 30" EAST, HAVING A RADIUS OF 974.00 FEET, A CENTRAL ANGLE OF 02° 30' 06" AND AN ARC LENGTH OF 42.53 FEET; 14) ALONG AN ARC OF A TANGENT REVERSE CURVE CONCAVE TO THE NORTHWEST FROM A RADIAL LINE BEARING NORTH 25° 55' 36" WEST, HAVING A RADIUS OF 1026.00 FEET, A CENTRAL ANGLE OF 25° 53' 29" AND AN ARC LENGTH OF 463.64 FEET; AND First American Title Page 10 of 21 Order Number: 0192-5663216 Pepe Number: 11 15) SOUTH 89° 57' 53" WEST, 456.76 FEET TO THE WEST LINE OF SAID PARCEL NINE, ALSO BEING THE WEST LINE OF SAID SECTION 15; THENCE ALONG SAID WEST LINE, NORTH 00° 02' 07" WEST, 513.00 FEET; THENCE LEAVING LAST SAID LINE, NORTH 89° 57' 53" EAST, 333.88 FEET; THENCE ALONG THE FOLLOWING THIRTEEN (13) COURSES: 1) PARALLEL WITH THE WEST LINE OF SAID SECTION 15, NORTH 00° 02' 07" WEST, 90.30 FEET; 2) ALONG AN ARC OF CURVE CONCAVE TO THE NORTH FROM A RADIAL LINE BEARING NORTH 02° 35' 18" WEST, HAVING A RADIUS OF 300.00 FEET, A CENTRAL ANGLE OF 02° 33' 11" AND AN ARC LENGTH OF 13.37 FEET; 3) SOUTH 89° 57' 53" WEST, 8.52 FEET; 4) PARALLEL WITH THE WEST LINE OF SAID SECTION 15, NORTH 00° 02' 07" WEST, 142.00 FEET; 5) NORTH 89° 57' 53" EAST, 39.61 FEET; 6) NORTH 67° 41' 55" EAST, 77.99 FEET; 7) NORTH 22° 18' 05" WEST, 19.47 FEET; 8) NORTH 67° 41' 55" EAST, 142.00 FEET; 9) SOUTH 22° 18' 05" EAST, 137.98 FEET; 10) ALONG AN ARC OF A CURVE CONCAVE TO THE SOUTHEAST FROM A RADIAL LINE BEARING SOUTH 16° 33' 44" EAST, HAVING A RADIUS OF 500.00 FEET, A CENTRAL ANGLE OF 21° 31' 13" AND AN ARC LENGTH OF 187.50; 11) SOUTH 85° 02' 31" EAST, 183.56 FEET; 12) ALONG AN ARC OF A TANGENT CURVE CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 800.00 FEET, A CENTRAL ANGLE OF 04° 59' 36" AND AN ARC LENGTH OF 69.72 FEET; AND 13) NORTH 89° 57' 53" EAST, 291.25 FEET TO THE POINT OF BEGINNING; THENCE FROM SAID POINT OF BEGINNING THE FOLLOWING TWENTY-FIVE (25) COURSES: 1) SOUTH 00° 00' 18" WEST, 37.97 FEET; 2) SOUTH 89° 59' 42" EAST, 37.00 FEET; 3) NORTH 44° 59' 05" EAST, 14.14 FEET; 4) NORTH 89° 59' 53" EAST, 80.00 FEET; 5) SOUTH 45° 00' 55" EAST, 14.15 FEET; 6) NORTH 89° 56' 58" EAST, 52.00 FEET; 7) NORTH 44° 59' 05" EAST, 14.14 FEET; 8) NORTH 89° 57' 53" EAST, 70.01 FEET; 9) SOUTH 00° 00' 18" WEST, 217.23 FEET; 10) SOUTH 76° 57' 09" EAST, 41.55 FEET; 11) SOUTH 74° 52' 04" EAST, 51.22 FEET; 12) SOUTH 72° 33' 57" EAST, 51.22 FEET; fiirstAmen'can Tide Pepe 11 of 21 Order Number: 0192-5663216 Page Number: 12 13) SOUTH 70° 10' 31" EAST, 55.17 FEET; 14) SOUTH 67° 44' 49" EAST, 52.00 FEET; 15) NORTH 22° 15' 11" EAST, 20.02 FEET; 16) SOUTH 65° 16' 22" EAST, 64.97 FEET; 17) SOUTH 67° 13' 39" EAST, 55.34 FEET; 18) SOUTH 69° 46' 20" EAST, 7.27 FEET; 19) NORTH 18° 27' 11" EAST, 100.26 FEET; 20) ALONG AN ARC OF A CURVE CONCAVE TO THE NORTHEAST FROM A RADIAL LINE BEARING NORTH 18° 27' 11" EAST, HAVING A RADIUS OF 726.00 FEET, A CENTRAL ANGLE OF 00° 39' 16" AND ARC LENGTH OF 8.29 FEET; 21) NORTH 17° 47' 55" EAST, 52.00 FEET; 22) NORTH 28° 49' 47" WEST, 13.73 FEET; 23) ALONG AN ARC OF A CURVE CONCAVE TO THE WEST FROM A RADIAL UNE BEARING NORTH 75° 27' 29" WEST, HAVING A RADIUS OF 246.00 FEET, A CENTRAL ANGLE OF 14° 32' 13" AND AN ARC LENGTH OF 62.41 FEET; 24) NORTH 00° 00' 18" EAST, 21.15 FEET; AND 25) SOUTH 89° 12' 24 " EAST, 623.56 FEET TO THE EAST LINE OF SAID PARCEL THIRTEEN, ALSO BEING A POINT ON THE CENTERLINE OF LOWER SACRAMENTO ROAD, ALSO BEING A POINT ON THE EAST UNE OF THE NORTHWEST QUARTER (NW 1/4) OF SAID SECTION 15; THENCE ALONG SAID EAST LINE, NORTH, 218.70 FEET TO THE SOUTHEAST (SE) CORNER OF PARCEL EIGHTEEN AS DESCRIBED IN THAT CERTAIN QUITCLAIM DEED RECORDED MAY 20, 1996 AS INSTRUMENT NO. 96052704, SAN JOAQUIN COUNTY RECORDS; THENCE ALONG THE SOUTH LINE OF SAID PARCEL EIGHTEEN, WEST 310.00 FEET TO THE SOUTHWEST (SW) CORNER OF SAID PARCEL EIGHTEEN, THENCE ALONG THE WEST LINE OF SAID PARCEL EIGHTEEN, PARALLEL WITH THE EAST LINE OF THE NORTHWEST QUARTER (NW1/4) OF SAID SECTION 15, NORTH, 180.00 FEET TO THE NORTHWEST (NW) CORNER OF SAID PARCEL EIGHTEEN, THENCE ALONG THE NORTH UNE OF SAID PARCEL EIGHTEEN, PARALLEL WITH THE SOUTH UNE OF SAID PARCEL EIGHTEEN, EAST, 310.00 FEET TO THE NORTHEAST (NE) CORNER OF SAID PARCEL EIGHTEEN, ALSO BEING A POINT ON THE CENTERLINE OF LOWER SACRAMENTO ROAD, ALSO BEING A POINT OF THE EAST LINE OF THE NORTHWEST QUARTER (NW1/4) OF SAID SECTION 15; THENCE ALONG SAID EAST LINE, NORTH, 357.38 FEET TO THE NORTHEAST (NE) CORNER OF SAID PARCEL TEN, ALSO BEING A POINT ON THE EAST -WEST QUARTER -QUARTER (E- W 1/4 1/4) SECTION UNE QF THE NORTHWEST QUARTER (NW 1/4) OF SAID SECTION 15; THENCE ALONG SAID EAST -WEST QUARTER -QUARTER (E -W 1/4 1/4) SECTION LINE, NORTH 89° 12' 24" WEST, 1312.58 FEET, MORE OR LESS, TO A POINT, SOUTH 89° 12'24" EAST, 1330.19 FEET FROM THE NORTHWEST (NW) CORNER OF SAID PARCEL TEN; THENCE LEAVING SAID UNE, SOUTH 00° 00' 18" WEST, 648.43 FEET TO THE POINT OF BEGINNING, BEING PARCEL 5 OF LOT UNE ADJUSTMENT 09-R- 03, RECORDED JANUARY 11, 2010 AS INSTRUMENT NO. 2010-002139, SAN JOAQUIN COUNTY RECORDS. EXCEPTING THEREFROM ALL OIL, GAS OR MINERAL RIGHTS BELOW SIX HUNDRED FEET (600') OF THE SURFACE OF THE PROPERTY, WITH NO RIGHT OF SURFACE ENTRY, AS RESERVED IN THE DEED RECORDED JANUARY 11, 2010 AS INSTRUMENT NO. 2010-002141, SAN JOAQUIN COUNTY RECORDS. FlrstAmerkan Tide Page 12 of 21 Order Number: 0192-5663216 Page Number: 13 PARCEL 3: A PORTION OF THE SOUTHERLY ONE-HALF OF THE NORTHWEST QUARTER OF SECTION 15, TOWNSHIP 3 NORT?{, RANGE 6 FAST, MOUNT DIABLO BASE AND MERIDIAN, DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF THE NORTHWEST QUARTER OF SAID SECTION 15; TTIENCE NORTH, ALONG THE EAST LINE OF SAID NORTHWEST QUARTER, A DISTANCE OF 784 FEET TO THE POINT OF BEGINNING OF THE HEREIN DESCRIBED LAND; THENCE NORTH ALONG THE EAST LINE OF SAID NORTHWEST QUARTER, A DISTANCE OF 180 FEET; THENCE DUE WESTA DISTANCE OF 310 FEET; THENCE DUE SOUTH A DISTANCE OF 180 FEET; THENCE EAST, 310 FEET TO THE POINT OF BEGINNING. EXCEPTING THEREFROM ALL OIL, GAS OR MINERAL RIGHTS BELOW SIX HUNDRED FEET (600') OF THE SURFACE OF THE PROPERTY, WITH NO RIGHT OF SURFACE ENTRY, AS RESERVED IN THE DEED RECORDED JANUARY 11, 2010 AS INSTRUMENT NO. 2010-002141, SAN JOAQUIN COUNTY RECORDS. APN: 058-030-090-000 (Affects Parcel 1), 058-030-160-000 (Affects Parcel 2) and 058-030-040-000 (Parcel 3) FirstAmerlcan 77he Page 13of21 Order Number: 0192-5663214 Page Number: 14 3mile wiwoot !OPIUM '4 I 3 I,i • 1 A HW4J W.1 Wet Ili sliVitarOVA" Alf fitstAmerlar Mie Page 14 of 21 BILLING SCHEDULE EXHIBIT B Development: Gateway North, Unit No. 1 Gross Acreage: 19 29 Developer: FCB Homes No. of Units: 98 Engineer: MCR Engineering Date: 9/25/18 Construction cost $2,728,100.00 DEVELOPER COST CREDITS ENGINEERING Engineering Fee (5% of $100,000) ENGFEE $5,000 00 (3.5% of $200,000) ENGFEE $7,000.00 (2.5% of $2,428,100) ENGFEE $60,702.50 Inspection Fee (4% of $250,000) ENGINS $10,000 00 (3.5% of $750,000) ENGINS $26,250.00 (3% of $1,728,100) ENGINS $51,843.00 Engineering Fee Paid ENGFEE $ 119,548.00 Improvement Agreement Fee ENGFEE $2,211.00 ENGINEERING SUBTOTAL $163,006 50 $ 119,548.00 STREET SYSTEM Fees: Stone Water Inspection Fees PW03 1 LS © $ 2,047.00 $2,047.00 (Charge for 1 year inspection) Charges for work by City Forces: Seal Coat WKOTPW 140,313 SF @ $ 0.08 $11,225.04 STREET SYSTEM SUBTOTAL $13,272 04 $0 00 SEWER SYSTEM Fees: Charges for Work by City Forces: TV Inspection for Pipe Installation PW03 3.785 LF @ $ 1 50 $5,677.50 TV Inspection for Project Acceptance PW03 3.785 LF @ $ 1 50 $5,677.50 SEWER SYSTEM SUBTOTAL $11,355.00 STORM DRAIN SYSTEM Fees: Charges for Work by City Forces: TV Inspection for Pipe installation TV Inspection for Project Acceptance STORM DRAIN SYSTEM SUBTOTAL ELECTRICAL SYSTEM (1701.6525) 2,490 LF @ $ (1701.6525) 2,490 LF @ $ To be billed separately by Electric Utility Department 1.50 $3,735.00 1.50 $3,735.00 $7,470.00 $0.00 TOTAL AMOUNT OF BILLING SCHEDULE $195,103.54 $119,548 00 Reimbursement Agreement 2007-52 058-030-16 (old APN 058-030-03) 18.15 Acres @ $5,735 99/Acre $104,108.22 058-030-16 (old APN 058-030-05) 3.90 Acres @ $4,832.08/Acre $18,845.11 058-030-04 $14,684 54 TOTAL DUE PRIOR TO IMPROVEMENT PLAN APPROVAL $213,193.41 Pending Reimbursement RA 1801 in accordance with LMC Section 17.62.060 $818,067.45 Total Fee $1,031,260.86 444 OF tit, NOT$:: ri . .iry of Lodi is now using the online Insurance program PINS Advantage. Once you have been awarded a contract you wlil receive an email from the City's online Insurance program requesting you to forward the email to your insurance provider(s) to submit the required insurance documentation electronically EXHIBIT C Insurance Requirements for Public Improvement Agreements Developer shall not commence work under this Agreement until Developer shall have obtained all insurance required under this exhibit, nor shall Developer allow any contractor of subcontractor to commence work on Developer's contact or subcontract until all similar insurance required of the contractor or subcontractor shall have been so obtained, All requirements herein provided shall appear either in the body of the insurance policies or as endorsement and shall specifically bind the insurance carrier. Developer shall procure and maintain during the life of this Agreement such insurance as shall insure City, its elected and appointed boards. commissions, officer, agents, employees and volunteers, Developer and any contractor or subcontractor performing work covered by this Agreement from claims for damages for personal injury, including death, as well as from claims for properly damage which may arise from the Project or the Project property, including any public streets or easements, from Developers' or any contractors' or subcontractors' operations hereunder. whether such operations be by Developer or any contractor of subcontractor or by anyone directly or indirectly employed by either Developer or any contractor of subcontractor, and the amount of such insurance shall be as follows: MINIMUM SCOPE AND LIMIT OF INSURANCE Coverage shall be at (east as broad as: 1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an "occurrence" basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $5,000,000 per occurrence If a general aggregate limit applies, either the general aggregate limit shall apply separately to this projectilocation (150 CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit. 2. Automobile Liability: ISO Form Number CA 00 01 covering any auto or if Developer has no owned autos, then hired, and non - owned autos with limit no less than $5,000,000 per accident for bodily injury and property damage. 3. Workers' Compensation: as required by the State of California, with Statutory Limits, and Employer's Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease 4. Professional Liability. For any consultant or other professional who will engineer or design the Public Improvements, liability Insurance for errors and omissions with limits not less than $1,000,000 per occurrence, shall be procured and maintained for a period of Five (5) years following completion of the Public Improvements. Such insurance shall be endorsed to include contractual liability (a) Other Insurance Provision: Additional Named Insured Status The City of Lodi, its elected and appointed boards, commissions, officers, agents, employees, and volunteers are to be covered as additional insureds on the CGL and auto policy with respect to Nability arising out of work or operations performed by or on behalf of the Developer including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Developer's insurance (at least as broad as ISO Form CG 20 10 11 85 or if not available, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38;rust CG 20 37 if a later edition is used (b) Primary and Non -Contributory Insurance Endorsement The limits of insurance coverage required may be satisfied by a combination of primary and umbrella or excess insurance. For any claims related to this contract, the Developer's insurance coverage shall be primary coverage at least as broad as ISO CG 20 01 04 13 as respects the Entity, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the Entity, its officers, officials, employees, or volunteers shall be excess of the Developer's Insurance and shall not contribute with it. (c) Waiver of Subrogayon Developer hereby grants to City of Lodi a waiver of any right to subrogation which any insurer of said Developer may acquire against the City of Lodi by virtue of the payment of any Toss under such insurance. Developer agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City of Lodi has received a waiver of subrogation endorsement from the insurer NOTE: (1) The street address of the CITY OF LODI must be shown along with (a) and (b) and (c) above; 221 West Pine Street, Lodi, Califomia, 95240; (2) The insurance certificate must state, on its face or as an endorsement, a description of the project that it is insuring. (d) S dy = i o pages Risk: rev. 9/202018 (g) The term "insured" is used severally and not collectively, but the inclusion herein of more than one insured shall not operate to increase the limit of the company's liability under the Developers commercial general liability and automobile liability policies, Notice of Cancellation or Change in Coverage Endorsement This policy may not be canceled nor the coverage reduced by the company without 30 days' prior written notice of such cancellation or reduction in coverage to the Risk Manager, City of Lodi, 221 West Pine St., Lodi, CA 95240. Continuity of Covereae All policies shall be in effect on or before the first day of the Term of this Agreement. At least thirty (30) days prior to the expiration of each insurance policy, Developer shall furnish a certificate(s) showing that a new or extended policy has been obtained which meets the minimum requirements of this Agreement. Developer shall provide proof of continuing insurance on at least an annual basis during the Term. If Developer's insurance lapses or is discontinued For any reason, Developer shall immediately notify the City end immediately obtain replacement insurance. Developer agrees and stipulates that any insurance coverage provided to the City of Lodi shall provide for a claims period following termination of coverage which is at least consistent with the claims period ar statutes of limitations found in the California Tort Claims Act (California Government Code Section 810 et seq.). Failure to Comply If Developer fails or refuses to obtain and maintain the required Insurance, or fails to provide proof of coverage, the City may obtain the Insurance. Developer shall reimburse the City for premiums paid, with Interest on the premium paid by the City et the maximum allowable legal rate then in effect in California, The City shall notify Developer of such payment of premiums within thirty (30) days of payment stating the amount paid, the name(s) of the Insurer(s), and rate of interest. Developer shall pay such reimbursement and interest on the first (1st) day of the month following the City's notice. Notwithstanding any other provision of this Agreement, if Developer tails ar refuses to obtain or maintain Insurance as required by this agreement, or fails to provide proof of insurance, the City may terminate this Agreement upon such breach. Upon such termination, Developer shall immediately cease use of the Site or facilities and commence and diligently pursue the removal of any and all of its personal property from the site or facilities. (h) Verification of Co. pia4Q Developer shall furnish the City with a copy of the policy declaration and endorsement page(s), original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the City before work commences. However, Failure to obtain the required documents prior to the work beginning shall not waive the Developer's obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies. including endorsements required by these specifications, at any time Failure to exercise this right Shall not constitute a waiver of the City's right to exercise after the effective date. Self -Insured Retenjions Self-insured retentions must be declared to and approved by the City. The City may require the Developer to provide proof of ability to pay losses and related investigations. claim administration, and defense expenses within the nstention. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City, (j) Insurance Limits The limits of insurance described herein shall not limit the liability of the Developer and Developer's officers, employees, agents, representatives, contractors or subcontractor. Developer's obligation to defend, indemnify and hold the City and its officers, officials, employees. agents and volunteers harmless under the provisions of this paragraph is not limited to or restricted by any requirement in the Agreement for Developer to procure and maintain a policy of insurance. Subcontractor Developer shall require and verify that all contractor and subcontractor maintain insurance meeting all the requirements stated herein, and Developer shall ensure that City is an additional insured on insurance required from contractors and subcontractors. Quallfie4 Insurer(s) All insurance required by the terms of this Agreement must be provided by insurers licensed to do business in the State of California which are rated at least "A-, VI" by the AM Best Ratings Guide, and which are acceptable to the City. Non -admitted surplus lines carriers may be accepted provided they are included on the most recent list of California eligible surplus lines insurers (LESLI list) and otherwise meet City requirements. (i) (k) (1) (m) Completed Operatipns Endorsement For three years after completion of the project, a certificate of insurance with a Completed Operations Endorsement, CG 20 37 07 04, will be provided to the City of Lodi. Professional Liability. For any consultant or other professional who will engineer or design the Publdc Improvements, liability insurance for errors and omissions with limits not less than $1,000,000 per occurrence, shall be procured and maintained for a period of five (5) years following completion of the Public Improvements. Such insurance shall be endorsed to include contractual liability Page 2 of 2 pages 1 Risk: rev. 9/202018 Jennifer Ferraiolo From: Jennifer Ferraiolo Sent: Monday, March 11, 2019 4:14 PM To: 'Deborah Baligad' Cc: City Council; Steve Schwabauer; Andrew Keys; Janice Magdich; Charles Swimley Subject: RE: Improvement Agreement for Gateway North Subdivision, Unit No. 1, Tract 3940 - Blossom Land Company Attachments: Letter to Mayor and City Council (3_12_19 Special Hearing).pdf Thank you for your email. It was received by the City Council and forwarded to the City Manager's Office and Public Works Department for information, response, and/or handling. In addition, your correspondence will be provided to Council as a Blue Sheet item for tomorrow morning's meeting. Jennifer M. Ferraiolo, MMC City Clerk P.O. Box 3006 Lodi, CA 95241-1910 (209) 333-6702 (209) 333-6807 FAX From: Deborah Baligad [mailto:Deborah.Baligad@GreshamSavage.com] Sent: Monday, March 11, 2019 4:01 PM To: Jennifer Ferraiolo <jferraiolo@lodi.gov> Cc: Steve Schwabauer <sschwabauer@lodi.gov>; Janice Magdich <jmagdich@lodi.gov>; Charles Swimley <Cswimley@lodi.gov>; 'JWarner@BrowmanDevelopment.com' <JWarner@BrowmanDevelopment.com>; 'mary.kendall@walmartlegal.com' <mary.kendall@walmartlegal.com> Subject: Improvement Agreement for Gateway North Subdivision, Unit No. 1, Tract 3940 - Blossom Land Company Sent on behalf of Matthew Nelson Please see attached letter. Deborah Baligad Legal Secretary Gresham Savage Nolan & Tilden, PC 550 E Hospitality Lane, Suite 300 San Bernardino, CA 92408-4205 Office: (909) 890-4499 Ext. 1759 Fax: (909) 890-0687 www. G res ha mSavag e. co m deborah. baligad@ greshamsavage.com 1. Privileged and Confidential Communication. The information contained in this email and any 1 attachments may be confidential or subject to the attorney client privilege or attorney work pro,luct doctrine. If you are not the intended recipient of this communication, you may not use, disclose, print, copy or disseminate the same. If you have received this in error, please notify the sender and destroy all copies of this message. 2. Notice re Tax Advice. Any tax advice contained in this email, including any attachments, is not intended or written to be used, and cannot be used, by you or any other recipient for the purpose of (a) avoiding penalties that may otherwise be imposed by the IRS, or (b) supporting, promoting, marketing, or recommending any transaction or matter to any third party. 3. Transmission of Viruses. Although this communication, and any attached documents or files, are believed to be free of any virus or other defect, it is the responsibility of the recipient to ensure that it is virus free, and the sender does not accept any responsibility for any loss or damage arising in any way from its use. 4. Security of Email. Electronic mail is sent over the public Internet and may not be secure. Thus, we cannot guarantee the privacy or confidentiality of such information. 2 GRESHAM SAVAGE March 11, 2019 VIA E-MAIL [Ci.tyclerkNodi.gov] Matthew.Nulsoncy'GreshamSavage.coni • San Bernardino Office (909) 590-4499 - ilea' (909) 890-9877 Honorable Mayor and City Council City of Lodi P.O. Box 3006 Lodi, California 9524]-1910 Re: Improvement Agreement for Gateway North Subdivision, Unit No. 1, Tract 3940 — Blossom Land Company. Dear Honorable Mayor and City Council: This Firm represents Walmart, Inc. ("Walmart"). Walmart concurs with City staff's recommendation that the City Council continue consideration of Agenda Item F-1, currently on the March 12, 2019City Council Special Hearing Agenda, specifically the approval of the Improvement Agreement ("Improvement Agreement") with Blossom Land Company ("Blossom") for the Gateway North Subdivision, Unit 1, Tract No. 3940 ("Gateway Project"). It is our understanding that Blossom/FCB Homes plans on attending the hearing and is planning to request that the Council consider the matter despite staff's recommendation to continue the matter. Please accept this correspondence as our request that the City deny any request by Blossom/FCB Homes to consider the matter and to approve the staff recommendation of a continuance of the matter to April 17, 2019. Background Walmart has a new store and owns property adjacent to the Gateway Project. Walmart, along with the Browman Development Company ("Browman"), developed the Lodi Shopping Center including the design and installation of significant off-site public improvements including oversized roads, medians, water, wastewater and storm drains ("Off-site Improvements"). These Off -Site Improvements were required by the City to facilitate development of the surrounding area including the Gateway Project. The Gateway Project is within the Area of Benefit of these off-site 551) ha<.t lio5pil slily Lane, suite 3011 • San L3rrnardinu, California 9244.4 951) Weal . Slreel, Suite 1.810 • San Diego, California 921(11 lnn Pla;a • 1)iverside. California 02501 (By Appoinlmenl only) Gare: hha 1115 a V 0!40.00 n1 W2060-Lodi_CA _Store_101789-03 -- 3609855.1 Honorable Mayor and City Council City of Lodi March 11, 2019 Page 2 Improvements and is subject to Reimbursement Agreement RA -18-10 ("Reimbursement Agreement"). Unclean Hands The unclean hands doctrine is an equitable concept where a party is not entitled to request or obtain a particular outcome when that party is acting unethically or has acted in bad faith with respect to the subject. Blossom/FCB Homes conduct throughout the City's processing and handling of this matter has been a textbook example of unclean hands. Walmart and Browman have been diligently working to obtain the City's approval of Reimbursement Agreement for almost a year; however, due to unfounded, bad faith and last second objections raised by Blossom on numerous occasions, including at the most recent City Council hearing on February 6, 2019, the approval has been and continues to be inexcusably and indefinitely delayed. Not only has the Reimbursement Agreement been prepared by an independent third - party engineering firm (previously used by FCB/Blossom for its own reimbursement agreement), the Reimbursement Agreement was also reviewed by City staff, peer reviewed by an independent third -party engineer, and at FCB/Blossom's request, its objections reviewed further by an independent third -party engineer. In all of those aforementioned cases, each party has found the Reimbursement Agreement to be fair, correct, and consistent with law. Yet, despite Blossom/FCB Homes' egregious behavior and delay tactics directed toward the City, Browman and Walmart with the processing of the Reimbursement Agreement, Blossom/FCB Homes now has the audacity to insist that the Council consider the Improvement Agreement in spite of the recommendations of City staff and the objections of Browman and Walmart. Blossom/FCB's deliberate tactics are to get away with enjoying the benefits of the Off - Site Improvements without paying for them. The City Council should swiftly and unequivocally deny Blossom/FCB Homes any consideration of the Improvement Agreement and continue this matter as recommend by City staff. Lodi Shopping Center and Blossom Projects must be processed concurrently. Beyond Blossom/FCB Homes' unclean hands, legal and common sense dictate that the two agreements are to be processed concurrently. As stated, the Lodi Shopping Center installed significant Off-site Improvements from which Blossom receives, and continues to receive, substantial benefit. If Lodi Shopping Center hadn't installed the Off-site Improvements Blossom would not have been able to develop the Gateway Project because such Off-site Improvements are necessary to serve and develop the W2060 -Lodi CA; store N1789.03--3609855.1 Honorable Mayor and City Council City of Lodi March 11, 2019 Page 3 Gateway Project and the Off-site Improvements were required under Blossom's EIR, MMRP, and conditions of approval. Approval of the Improvement Agreement and Reimbursement Agreement as a practical matter must be processed concurrently so that final reimbursement by Blossom occurs prior to the issuance of any additional building permits and final map recordation in compliance with Blossom's EIR, MMRP, and conditions of approval. Blossom has consistently threatened the City with litigation over its approval the Reimbursement Agreement. These delays have resulted in significant expense to the Lodi Shopping Center, including, without limitation carry costs and damages as a result of uninvested capital, and places the City at risk of having to pay for the reimbursements itself. In addition, further postponing the Reimbursement Agreement while considering Blossom's Improvement Agreement would be improper, as Blossom's EIR requirements, MMRP measures, and conditions of approval remain unfulfilled. Section 17.62.050 of the City of Lodi Ordinance requires the City of Lodi to approve a Reimbursement Agreement within 60 days of completion. The City completed the Reimbursement Agreement and scheduled the public hearing on April 18, 2018. However due to threatened litigation by Blossom the City has delayed approval for eleven months and continues to delay the approval of the Reimbursement Agreement. During the eleven month delay, the City has issued Blossom building permits, giving Blossom the right to move forward with the Gateway Project, which would not have been possible without the Off-site Improvements installed by Lodi Shopping Center. Walmart and Browman have been significantly damaged by the foregoing actions. Approving the Improvement Agreement before the Reimbursement Agreement will only further the damage to Walmart and Browman. Finally, the timing for collection of reimbursement is problematic should the Improvement Agreement be approved prior to the Reimbursement Agreement. Lodi Municipal Code section 17.62.060 provides that the collection of reimbursement ocrrus upon the issuance of a building permit. If the Improvement Agreement gets approved now, Walmart and Browman could possibly have to wait until issuance of a building permit or connection to the service utility, possibly of each home, to collect its reimbursement. The timing of this form of reimbursement is completely unknown and could take years. Postponement of this properly owed reimbursement would be patently unfair to Walmart and Browman. \V2060 -Lodi CA; Store 41789-03-3609855.1 Honorable Mayor and City Council City of Lodi March 11, 2019 Page 4 City's Risk for Reimbursement and Equity. The City required the Lodi Shopping Center to install the Off -Site Improvements in order to facilitate the surrounding development, including the Gateway Project. Pursuant to Government Code Section 664861, the City is required to reimburse a developer for the costs of any improvements, including interest, which exceeds its fair share of improvement required to serve the subdivision. The Lodi Shopping Center has diligently been working to obtain City approval of the Reimbursement Agreement to no avail. Because the two developments are interconnected and the City is required to approve the Reimbursement Agreement within sixty (60) days in accordance with Section 17.62 of the Lodi Code of Ordinances, the equitable solution for all parties is for the Improvement Agreement to be modified to address the above concerns and not considered for approval until after the Reimbursement Agreement is approved. Approval of the Improvement Agreement by the City, while delaying approval of the Reimbursement Agreement violates Lodi Shopping Center's equal protection rights, violates the Municipal Code, violates Blossoriz's EIR, MMRP, and conditions of approval, and places the City at great financial risk for having to itself make the reimbursement. (See attached California Attorney General Opinion (81 Ops.Cal.Atty.Gen. 373)) Conclusion If the City Council approves the Improvement Agreement, it will be rewarding bad faith tactics and behavior and allowing the development of Blossom to commence while simultaneously delaying consideration of the Reimbursement Agreement. This outcome will greatly harm the City, significantly and irreparably damage Browman and Walmart, and unjustly enrich and reward Blossom for its continued efforts to harm the developers of the Lodi Shopping Center. If the City Improvement Agreement is approved, the City must amend prior to approval to include the requirement to pay prevailing wage due to the public subsidy that the City would be providing by Blossom's nonpayment of its fair share of the improvement and to include the fair market value cost of the City -owned industrial waste and sewer easements, plus approval by the City to transfer such easements to Blossom. I California Government Code §66486 — In the event of the installation of improvements required by an ordinance adopted pursuant to Section 66495, the local agency shall enter into an agreement with the subdivider to reimburse the subdivider for that portion of the costs of those improvements, including an amount attributable to interest, in excess of the construction require for the subdivision. W2060 -Lodi CA; Slore #1789-03 -.3609855.1 Honorable Mayor and City Council City of Lodi March 11, 2019 Page 5 Based on the foregoing, we respectfully request the City not approve the Improvement Agreement, to take the matter off -calendar and to continue the matter to April 17, 2019, to be considered after consideration of the Reimbursement Agreement. Very truly yours, V i 1 ,,,,,V; L.kolti • , 4., Matthew Wm. Nelson, of GRESHAM SAVAGE NOLAN & TILDEN, A Professional Corporation MWN:jmk Enclosure cc: City Manager City Attorney Public Works Director Walmart Brownian Development Company W2060 -Lodi CA; Siore #1789-03--3609855.1 TO BE PUBLISHED IN THE OFFICIAL REPORTS OFFICE OF THE ATTORNEY GENERAL State of California DANIEL E. LUNGREN Attorney General OPINION of DANIEL E. LUNGREN Attorney General GREGORY L. GONOT Deputy Attorney General No. 98-1001 November 25, 1998 THE HONORABLE STEVEN R. SANDERS, COUNTY COUNSEL, COUNTY OF SAN BENITO, has requested an opinion on the following question: May a county board of supervisors enter into an agreement with the subdividers of a parcel of property that would require the installation of a larger storm drain system than necessary for the particular subdivision, with the county reimbursing the subdividers for the additional cost, if a member of the board of supervisors has an ownership interest in the parcel? CONCLUSION A county board of supervisors may enter into an agreement with the subdividers of a parcel of property that would require the installation of a larger storm drain system than necessary for the particular subdivision, with the county reimbursing the subdividers for the additional cost, even though a member of the board of supervisors has an ownership interest in the parcel. ANALYSIS Government code section 1090 Footnote No.1 prohibits public officers and employees from being financially interested in contracts made by them in their official capacities, or by boards or bodies of which they are members. Section 1090 states in part: "Members of the Legislature, state, county, district, judicial district, and city officers or employees shall not be financially interested in any contract made by them in their official capacity, or by any body or board of which they are members. Nor shall state, county, district, judicial district, and city officers or employees be purchasers at any sale or vendors at any purchase made by them in their official capacity." If a conflict of interest exists under section 1090, not only is the official prohibited from contracting, but the 1 of4 board or body on which he serves may not enter into the contract either. (67 Ops.Cal.Atty.Gen. 369, 375 (1984).) Abstention by the affected official does not avoid the proscription of section 1090. (See, e.g., City of Imperial Beach v. Bailey (1980) 103 Cal.App.3d 191, 195; Fraser-Yamor Agency, Inc. v. County of Del Norte (1977) 68 Cal.App.3d 201, 211-212.) The question presented for resolution concerns whether a county board of supervisors may enter into a contract with one of its members notwithstanding the fact that the member has a financial interest in the contract. The agreement, executed under the terms of section 66485 and an implementing county ordinance, would require the subdividers of a parcel of property, including the supervisor as one of the owners, to construct larger drainage capacity improvements than would be necessary for the particular subdivision, with the county reimbursing the subdividers for the additional cost. These improvements would benefit the subsequent development of property adjacent to the subdivision. Would the agreement be prohibited under section 1090 due to the "self dealing" aspect of the transaction? We conclude that the agreement would not be prohibited because of the "subdividing lands" exemption from the prohibition contained in section 1091.1. The Subdivision Map Act (§§ 66410-66499.37; "Act") allows a city or county, as a condition of granting subdivision map approval, to require a subdivider to construct public improvements, such as streets and sewers, or donate land or money for public facilities that will be needed due to the subdivision and future use of the property. Not only may a subdivider be required to construct improvements benefitting the proposed subdivision, he may also be required to install improvements benefitting property not within the proposed subdivision. (71 Ops.Cal.Atty.Gen. 163, 163-164 (1988).) Section 66485 states: "There may be imposed by local ordinance a requirement that improvements installed by the subdivider for the benefit of the subdivision shall contain supplemental size, capacity, number, or length for the benefit of property not within the subdivision, and that those improvements be dedicated to the public. Supplemental length may include minimum sized offsite sewer lines necessary to reach a sewer outlet in existence at that time." Section 66486 further provides: In the event of the installation of improvements required by an ordinance adopted pursuant to Section 66485, the local agency shall enter into an agreement with the subdivider to reimburse the subdivider for that portion of the cost of those improvements, including an amount attributable to interest, in excess of the construction required for the subdivision." Thus, if a city or county requires the supplemental capacity improvements referred to in section 66485, it must enter into an agreement to reimburse the subdivider for the costs attributable to that portion of the improvements needed for property outside the subdivision. As regards the source of the funds for the reimbursement of the subdivider, section 66487 states: "In order to pay the costs as required by the reimbursement agreement, the local agency may: "(a) Collect from other persons, including public agencies, using such improvements for the benefit of real property not within the subdivision, a reasonable charge for such use. "(b) Contribute to the subdivider that part of the cost of the improvements that is attributable to the benefit of real property outside the subdivision and levy a charge upon the real property benefitted to reimburse itself for such cost, together with interest thereon, if any, paid to the subdivider. "tr.\ Petahlioh arUrl maintain 1nna1 l+anafit rliotrinte fnr tha lave and nnllantinn of ennh 2 of4 `1..f liDl4V11D1141141114111141111VN4L VL.11l,1l1. U10611VW LV1 L111., 1L.v 41LU L.VLL%L+LLV11 VL JLINll charges or costs from the property benefitted." In examining whether section 1090 would be applicable to the contract in question, we first note that exceptions to the prohibition have been made for certain "remote interests" (§ 1091) and "non -interests" (§ 1091.5). (See Citizen Advocates, Inc. v. Board of Supervisors (1983) 146 Cal.App.3d 171, 178-179; Fraser-Yamor Agency, Inc. v. Del Norte County, supra, 68 Cal.App.3d at 217-218; 80 Ops.Cal.Atty.Gen. 335, 337 (1997).) In addition, a "rule of necessity" has been applied in particular circumstances to permit the making of a contract that would otherwise be proscribed. (See 80 Ops.Cal.Atty.Gen., supra, at 337; 73 Ops.Cal.Atty.Gen. 191, 195 (1990); 69 Ops.Cal.Atty.Gen. 102, 107-112 (1986); 65 Ops.Cal.Atty.Gen. 305, 308-311 (1982).) Lastly, there are two specialized exemptions (§§ 1091.1, 1091.2) not covered by sections 1091 or 1091.5. Here, the statute governing our analysis is section 1091.1, which provides as follows: "The prohibition against an interest in contracts provided by this article or any other provision of law shall not be deemed to prohibit any public officer or member of any public board or commission from subdividing lands owned by him or in which he has an interest and which subdivision of lands is effected under the provisions of Division 2 (commencing with Section 66410) of Title 7 of the Government Code or any local ordinance concerning subdivisions; provided, that (a) said officer or member of such board or commission shall first fully disclose the nature of his interest in any such lands to the legislative body having jurisdiction over the subdivision thereof and (b) said officer or member of such board or commission shall not cast his vote upon any matter or contract concerning said subdivision in any manner whatever." Applying this statutory language, we find that the agreement in question arises directly from the subdivision approval process itself. If a local ordinance imposes the requirement authorized by section 66485 and the local agency determines that the supplemental capacity is needed to benefit property not within the subdivision, the subdivider must provide the supplemental capacity as a condition for obtaining approval of the subdivision map. Under the agreement, the subdivider must be reimbursed for the expense of constructing the supplemental capacity for the benefit of later subdivisions and uses of adjacent property. Footnote No. 2 While subdivision approval may be said to be a "benefit" received by the subdivider, the Legislature has determined that such benefit should not bar a public official "from subdividing lands owned by him" (§ 1091.1) pursuant to the Act's requirements and local ordinances adopted thereunder. Even if the reimbursement could be viewed as a benefit, neither the subdivider nor the local agency has any choice in the matter; once the local agency orders the supplemental capacity, it is required by law to provide for reimbursement through an agreement. In this regard, we find that the mandated reimbursement procedure here may be compared to the eminent domain procedure outlined in Santa Clara Valley Water Dist. v. Gross (1988) 200 Cal.App.3d 1363. In Gross, the court concluded that participation in a statutorily mandated process in connection with the sale of property through eminent domain did not constitute the making of a contract for purposes of section 1090. The court stated: ".... Section 1090 is a broadly drafted conflict-of-interest statute. It expresses a general policy that public officers and employees are to refrain from entering into transactions which will conflict with the performance of their official duties. (City of Carmel -by -the -Sea v. Young (1970) 2 Ca1.3d 259, 270.) .... Government Code section 1090 is directed at dishonest conduct and at' " 'conduct that tempts dishonor' "' (Thomson v. Call (1985) 38 Ca1.3d 633, 648); it has no force in the context of a condemnation action where the sale of property is accomplished by operation of law and each side is ordinarily represented by counsel. 3 of 4 ".... In our view compliance with section 1250.410 is no more likely to create an appearance of impropriety than participation in mandatory settlement conferences. 'The Legislature [in section 1250.410] did not direct the parties to "apprise" each other or "communicate" with each other about an offer or demand.' (City of San Leandro v. Highsmith, supra, 123 Cal.App.3d 146, 155.) Rather it is directed that each file with the court, and serve upon the other, a formal offer and demand, as an absolute prerequisite to an award of attorney's fees. This procedure is not the equivalent of negotiations between the parties and consequently does not run afoul of section 1090." (Id., at pp. 1369-1370.) Similarly, here, the supplemental capacity reimbursement procedure for subdivisions is mandated by statute. The reimbursement amount is dictated by the costs of construction; it is not subject to negotiation so as to cause an appearance of impropriety. The supervisor in question may only recover his actual costs --no more, no less --in being required to benefit property located outside the subdivision. As the reimbursement procedure set forth in sections 66485-66489 arises directly from the subdivision process specified in section 1091.1, is mandated by statute, and does not involve negotiations that would cause an appearance of impropriety, we conclude that a county board of supervisors may enter into an agreement with the subdividers of a parcel of property that would require the installation of a larger storm drain system than necessary for the particular subdivision, with the county reimbursing the subdividers for the additional cost, even though a member of the board of supervisors has an ownership interest in the parcel. Footnote No. 3 Of course, pursuant to the proviso contained in section 1091.1, the supervisor would be required to fully disclose the nature of his interest in the land to be subdivided and may not cast his vote on any matter pertaining to the subdivision, including the reimbursement agreement. Footnote No. 1 All undesignated section references hereafter are to the Government Code. Footnote No. 2 Section 1091.1 contemplates that the subdivision process may involve an actual contract between the public body and one of its members since it states that the "member of such board or commission shall not cast his vote upon any matter or contract concerning said subdivision ...." (Italics added.) Footnote No. 3 In light of the conclusion reached, it is unnecessary to determine whether the agreement would also avoid the proscription of section 1090 under the "rule of necessity" due to the county's need for the supplemental drainage capacity. 4 of 4 HERUM \CRABTREE \SUNTAG FOR NEYS March 8, 2019 VIA ELECTRONIC MAIL D. Stephen Schwabauer City Manager City of Lodi 221 West Pine Street, City Hall P.O. Box 3006 Lodi, CA 95241-1910 sschwabauer@lodi.gov 1444) 0- 616 Re: Processing of Gateway Unit 1 Improvement Agreement Dear Mr. Schwabauer: Steven A. Herum sherum@herumcrabtree.com This office represents Frontier Land Company (Frontier) and I am writing to you regarding the processing of Frontier's Gateway Unit 1 Improvement Agreement that was continued from the February 6, 2019 Lodi City Council meeting over my client's objection. As you will recall from my earlier letter to you dated December 6, 2018, in response to a letter submitted by the Walmart Company, I observed that the State Subdivision Map Act compels Lodi to process and approve a subdivision improvement agreement in a timely manner. Nevertheless, at the February 6, 2019 Lodi City Council meeting, contrary to the requirements of both State law and City law and my client's objection, you recommended to the City Council that the request be continued and thereafter the City Council did continue consideration of Frontier's Subdivision Improvement Agreement. Frontier's Subdivision Improvement Agreement satisfies all requirements of law and has been set for public hearing on several occasions over several months. There is no lawful reason to continue to delay its approval. Indeed, Lodi has a statutory obligation to promptly process and approve the SIA. Government Code section 66456.2(a) provides in full: 5757 PACIFIC AVENUE \ SUITE 222 \ STOCKTON, CA 95207 \ PH 209.472.7700 \ MODESTO PH 209.525.8444 \ FX 209.472.7986 \ APC D. Stephen Schwabauer March 8, 2019 Page 2 of 2 An improvement plan being processed in conjunction with either an approved tentative, parcel, or final map shall be prepared by a registered civil engineer and acted on within 60 working days of its submittal, except that at least 15 working days shall be provided for processing any resubmitted improvement plan. The 60 working day period shall not include any days during which the improvement plan has been returned to the applicant for correction, has been subject to review by other than the local agency or, following that review, has been returned to the applicant for correction. (Bolding added.) Moreover, the City's own Municipal Code Section 17.62.040.B states in pertinent part, "[t]he City will make no effort to delay project approval or otherwise condition payment of reimbursement from other properties benefitting from the improvements prior to completion of the reimbursement agreement." Here the Subdivision Improvement Agreement has been set for Council consideration, evidencing that the SIA is complete and ready for approval. My client respectfully asks the City to observe the deadlines provided by the State Subdivision Map Act at the March 12, 2019 City Council meeting. Continuing approval of the Subdivision Improvement Agreement at the March 12 meeting would be without legal justification or support. Very truly yours, SK).0(.51A STEVEN A. HERUM Attorney -at -Law SAH:lac cc: Janice Magdich Clients