HomeMy WebLinkAboutAgenda Report - April 17, 2019 G-03 PHCITY OF LODI
COUNCIL COMMUNICATION
AGENDA ITEM
TM
AGENDA TITLE: Public Hearing to Consider Adopting Resolution Authorizing City Manager to
Execute Reimbursement Agreement RA -18-01, for Public Improvements
Constructed with Lodi Shopping Center
MEETING DATE: April 17, 2019
PREPARED BY: Public Works Director
RECOMMENDED ACTION
Public hearing to consider adopting resolution authorizing City
Manager to execute Reimbursement Agreement RA -18-01, for
public improvements constructed with Lodi Shopping Center.
BACKGROUND INFORMATION: Browman Development Company (BDC), the developer of Lodi
Shopping Center, located at the southwest corner of Kettleman Lane
and Lower Sacramento Road, entered into an Improvement
Agreement with the City, dated July 28, 2015. As required under the conditions of approval for the project
and terms of the Improvement Agreement, BDC and by separate agreement, Elliot Homes, Inc.
(collectively "Applicants"), completed certain public improvements on Westgate Drive and Century
Boulevard. The improvements include the installation of asphalt concrete pavement, concrete curb, gutter
and sidewalk, concrete median with landscape, water, wastewater, storm drainage lines, traffic signal
modifications at Kettleman Lane and Westgate Drive, wastewater trunk line relocation, storm water basin,
and storm water pump station. Portions of the public improvements installed by Applicants benefit
properties outside the project area, which lie between Kettleman Lane and Harney Lane.
The public improvements were accepted by City Council on October 19, 2016. The Applicants request a
Reimbursement Agreement in conformance with Lodi Municipal Code (LMC) Chapter 17.62, to recover the
cost of the improvements benefiting the above mentioned properties, including related costs such as land
cost, engineering, inspection, and plan check fees. The Engineer's Report, prepared by SNG Associates,
Inc., utilized established engineering principles to determine the appropriate reimbursement for each
benefiting property.
Since April 2018, several attempts have been made to conduct a public hearing to consider executing
Reimbursement Agreement RA -18-01. In fact, there have been 11 Council requests to either, set,
continue, or cancel a public hearing regarding this item because one major property owner, FCB Homes,
disagrees with the reimbursement methodology and resulting allocations presented by the Applicants.
This disagreement continues to result in threats of potential litigation from both FCB Homes and the
Applicants.
A public hearing was finally conducted on February 6, 2019, where Council was provided a presentation by
staff outlining the factual history of this specific reimbursement agreement process, along with detailed
information demonstrating why the Engineer's Report and corresponding cost allocations to the benefitting
properties are appropriately derived in accordance with the City's LMC; followed by the recommendation
that Council authorize the City Manager to execute Reimbursement Agreement RA -18-01. The City's
position has been validated by independent professional engineering and legal peer reviews. During the
APPROVED:
if 03 rd al
ephen l - • - I - r, City Manager
K:\WP\DEV_SERV\Reimbursements\RA1801 Lodi Shopping Center\PH 041719.doc
3/29/2019
Public Hearing to Consider Adopting Resolution Authorizing City Manager to Execute Reimbursement Agreement RA -18-01, for Public Improvements Constructed
with Lodi Shopping Center
April 17, 2019
Page 2
comment period, an attorney representing FCB Homes provided Council with a two-page hand-out that
referenced Sections 17.46.010, 17.62.040, 17.62.050 of the LMC and excerpts from Government Code
section 66419 that generated additional questions that staff could not address without additional time to
analyze.
Considering the new information provided, and the need for staff to conduct further review, Council chose
to continue the February 6, 2019 public hearing until March 12, 2019 to allow staff time to analyze the
arguments made by FCB Homes and provide staffs response. Staff engaged outside counsel to provide a
legal opinion addressing the arguments made by FCB Homes. The legal opinion was not completed in
time to present at the March 12, 2019 public hearing and for this reason Council continued the public
hearing to April 17, 2019. Based on video and minutes of the Council meeting, Council intended to
continue the public hearing only for the purpose of revisiting the new arguments presented on February 6,
2019.
FISCAL IMPACT All costs to prepare and administer Reimbursement Agreement RA -18-01
are borne by Applicants.
FUNDING AVAILABLE: Not applicable.
Charles E. Swimley, Jr.
Public Works Director
CES/CES/tdb
Attachment
cc: Senior Civil Engineer, Nathan
Senior Engineering Technician, Wiman
Public Works Management Analyst
Brownian Development
SNG & Associates
Property Owners
K:\WP\DEV_SERV\Reimbursements\RA1801 Lodi Shopping Center\PH 041719.doc 3/29/2019
WHEN RECORDED, RETURN TO:
City Clerk
City of Lodi
221 West Pine Street
Lodi, CA 95240
REIMBURSEMENT
for
PUBLIC IMPROVEMENTS
AGREEMENT # RA -18-01
THIS AGREEMENT is made by and between the CITY OF LODI, hereinafter referred to
as "City", and BDC Lodi III, L.P., a California limited partnership (BDC), and Elliott
Homes, Inc., an Arizona Corporation, hereinafter referred to as "Applicant".
RECITALS
WHEREAS, Applicant is the developer of commercial development titled Lodi Shopping
Center, located on the southwest corner of Lower Sacramento Road and Kettleman
Lane, Lodi, California, and has entered into an Improvement Agreement with City dated
July 28, 2015, to construct public improvements required to serve the development, and
WHEREAS, Applicant has constructed certain public improvements (hereinafter
"Improvements"), which include installation of asphalt concrete pavement, concrete curb,
gutter, and sidewalk, water pipe, wastewater pipe, storm drain pipe, storm water basin
(including land dedication), storm drain pump station, traffic control systems, and other
miscellaneous and related items, that will serve additional properties that are designated
and shown on the area of benefit attached as Exhibit A to this Agreement, and made a
part hereof; and
WHEREAS, the Applicant has filed a request with the Public Works Director in
conformance with Chapter 17.62 of the Lodi Municipal Code requesting reimbursement
for those improvements which benefit other properties or would be required of those
properties upon development, as more fully set forth in Exhibit B attached hereto and
made a part hereof; and
WHEREAS, the property owners of those properties shown in Exhibit A have been
notified and the City Council has conducted a public hearing regarding the Applicant's
request for reimbursement.
NOW THEREFORE, in consideration of the mutual covenants and conditions herein
contained and pursuant to Government Code Sections 66485 through 66489 and Title
17 of the Lodi Municipal Code, it is hereby agreed between the parties as follows:
1. The amount of the reimbursable costs due to the Applicant includes construction
and land costs less any applicable credits, plus ten percent (10%) for
administrative and engineering design costs, engineering plan check fees,
engineering inspection fees, and the reimbursement application fee. Total
construction costs and costs attributable to the area of benefit minus the
applicant parcels and the storm water basin parcel are shown on Exhibit C,
attached hereto and made part hereof by this reference.
2. The reimbursable amount shall be recalculated annually to include an amount
attributable to interest, using the Engineering News Record (ENR) 20 Cities
K:\WP\DEV_SERV\Reimbursements\RA1801 Lodi Shopping Center\RA1801 Agmt.doc 1
Construction Cost Index. On uncollected reimbursements, the reimbursement
rates shall be calculated in January of each year beginning January 2018 by the
following formula:
(ENR Jan. 1 of current year) _ (initial ENR) X (Balance due Jan. 1 of prior year
less payments made during the previous year)
The initial ENR index for this Agreement is 10889.17. The initial reimbursable
amounts are shown on Exhibit C.
3. In the event that the benefiting properties shown on Exhibit A develop, the City
shall collect the appropriate charges from the developer of the benefiting property
and reimburse the Applicant or the Applicant's heirs, successors or assigns, for a
period of fifteen (15) years. The charges for a benefiting property shall be paid in
full at the time of the first development on that property.
4. The Applicant shall pay the City $54,086.45 for the preparation of this Agreement
prior to approval and recording of this Agreement. This is based on one percent
(1%) of the reimbursable construction and land costs, excluding engineering,
administrative and other costs.
5. Upon each collection of reimbursement charges, an administrative charge shall
be deducted and retained by the City for administering the reimbursement
provisions of this Agreement. This charge shall be established from time to time
by resolution of the City Council. As of the date of this Agreement, the current
charge is $261.00.
a. A portion of the collection minus the one-half (1/2) of the administrative
charge will be paid to Elliot Homes, Inc. (or its designated successor) for
the storm water basin land cost reimbursement as indicated on Exhibit C.
b. The remaining portion of the collection minus one-half (1/2) of the
administrative charge will be paid to BDC Lodi III, L.P. (or its designated
successor) for the construction cost reimbursement as indicated on
Exhibit C.
6. This Agreement shall inure to the benefit of the heirs, successors and assigns of
the Applicant. The City shall mail the reimbursement to the last address of the
Applicant on file with the Public Works Director of the City. In the event a
reimbursement is returned or unclaimed after two (2) years from the date of
mailing, the amount of the reimbursement shall revert to the City and be
deposited in the appropriate development impact mitigation fee fund.
7. All correspondence and payments herein required shall be in writing, and
delivered in person or sent by registered mail, postage prepaid.
Correspondence and payments to City shall be addressed as follows:
Charles E. Swimley, Jr.
Public Works Director
221 West Pine Street
P. O. Box 3006
Lodi, CA 95241-1910
K:\WP\DEV_SERV\Reimbursements\RA1801 Lodi Shopping Center\RA1801 Agmt.doc 2
Correspondence and payments to Applicant shall be addressed as follows:
Browman Development Company
Attn: Darryl Browman
1556 Parkside Drive
Walnut Creek, CA 94596
Browman Development Company
Attn: Mario Albert
1556 Parkside Drive
Walnut Creek, CA
94596
Elliott Homes, Inc.
Price Walker, Director Land Acquisition & Development
340 Palladio Parkway, Suite 521
Folsom, CA 95630-8775
8. This Agreement is entered into pursuant to the provisions of Title 17 of the Lodi
Municipal Code and the provisions of that section shall be deemed a part of this
Agreement by reference.
{The balance of this page is intentionally left blank}
K:\WP\DEV_SERV\Reimbursements\RA1801 Lodi Shopping Center\RA1801 Agmt.doc 3
IN WITNESS WHEREOF, the Applicant and the City have caused their names to be
hereunto affixed and the City of Lodi has caused its corporate name and seal to be
hereunto affixed by its proper officers thereunto duly authorized.
"BDC"
BDC Lodi III L.P., a California limited partnership
By: Browman Development Company, Inc.
a California corporation, its general partner
Darryl Browman, Managing Partner Date
By: Elliott Homes, Inc., an Arizona Corporation
Harry C. Elliott III, President Date
City of Lodi, a Municipal Corporation
By:
Stephen Schwabauer, City Manager Date
ATTEST:
Jennifer M. Ferraiolo, City Clerk Date
APPROVED AS TO FORM:
Janice D. Magdich, City Attorney
K:\WP\DEV_SERV\Reimbursements\RA1801 Lodi Shopping Center\RA1801 Agmt doc 4
Legend
1-2 Basin
Park
Area of Benefit
Applicant Parcel
//
HWY12
Kettleman Lane (Hwy 12)
ento Road
7
Villa Fiore S
8
Centur Blvd.111
1111111+r 1111 rat
Elm
■w
///
Harney Lane
Parcel
Numbers
1
058-03-009
2
058-03-010
3
BDC Lodi III
LP
4
058-03-016
5
058-03-004
6
058-03-030
7
058-03-031
8
058-03-033
9
058-03-032
10
058-03-034
11
058-03-006
12
058-04-001
13
058-04-002
14
058-04-004
15
058-04-005
16
058-04-014
17
058-04-015
18
058-04-006
19
058-04-007
20
058-04-008
21
058-04-009
22
058-04-010
23
058-04-011
24
058-04-012
25
058-04-013
er Sacramento Road
c
DeBenedetti
Park
r
m
-1-
EXHIBIT A
Lodi Shopping Center Reimbursement (RA1801)
Area of Benefit Map
I
I 1 1 1
Sewer I
Lodi Shopping Center (Sunwest Village)
Reimbursement Agreement
Site
No.
APN
Acreage
1
058-03-009
33.2I
_
058-03-010
4.07
S 1,335,619.77
3DC Lodi III
$ 24.083.40
S 48.979.89
;.:5-03-017. 058-
u to -0i'91
32.-
2.uto-0'91
4
058-03-016
22.02
5
058-03-004
0.95
6
058-03-030
5.61
S 1.933.58
058-03-(
_17 . i
$ 33.196.04
rigs -0z.
$ 112.031.63
487,325.55
$ 206,549.20
3; 82.537.04
10
058-03-034
6.33
11
058-03-006
1.53
12
058-04-001
39.09
13
058-04-002
39.07
14
058-04-004
14.28
15
058-04-005
5.41
16
058-04-014
26.75
17
058-04-015
2.40
18
058-04-006
1.00
19
058-04-007
1.00
20
058-04-008
1.00
21
058-04-009
1.00
22
058-04-010
1.00
23
058-04-011
1.00
24
058-04-012
1.00
25
058-04-013
1.00
Total: 30188
Westgate Drive
Frontage
Improvements
407,934.14
$ 233.982.10
7 1 -n
S 1,184,025.03
Sewer Total
$ 220.233.91
S 250.14
$ 245.939.7-1
$ 373.125.84
IS 907,397.79
Storm Drain
SD Total
537.734.69
S 79.044.36
$ 890 74 -:
$ 325,800.69
$ 17.037.91
$ 100.61334
626.026.5"
cS 71S ; _ 1`:
3
21.952.00
$ 147,420.25
$ 135.656.12
S 45.774.32
17.341.67
$ 83.502.88
$ 7.693.16
3.205.45
3.205.48
$ 3.205.4S
$ 3,205.48
3.205.45
3.205.48
$ 3.205.4S
3.205.45
S 3,317,222.45
EXHIBIT "B"
Reimbursement
Fees
Total
Reimbursement
(Construction Costs
Fees)+
(Construction
Costs)
Basin
Land Cost
(Application Fee.
&ck Fcc. Insp.tia Plan
Check Fee. Fee}
$ 1.002,064.60
$ 163.838.14
8 169,717.02
S 1,335,619.77
S 289.193.20
$ 24.083.40
S 48.979.89
$ 362256.49
1.407.392.: 4
3 271.390.95
5 238.366.31
$ 1.917.149.59
S 591,432.90
$ 107.493.63
$ 100.169.42
$ 799,095.96
S 11,416.48
$ 5,621.43
S 1.933.58
$ 18.971.49
S 67,417.30
$ 33.196.04
$ 11.418.29
$ 112.031.63
487,325.55
$ 206,549.20
3; 82.537.04
$ 776.411.78
146.323.17
$ 72.049.02
$ 24.782.37
$ 243.154.56
24,707.66
$ 12.165.96
S 4.184.67
$ 41.058.29
S -
$ -
S -
$ -
S 14,709.23
$ 7.242.77
$ 2.491.26
$ 24,443.26
S 147.420.25
$ -
$ 24.968.18
$ 172.388.43
S 135.656.12
$ -
S 22,975.72
$ 158,631.84
S 45.774.32
$ -
$ 7.752.68
$ 53.527.00
S 17.341.67
$ -
$ 2,937.11
$ 20.278.79
S 83.502.88
$ -
$ 14.142.66
$ 97.645.54
S 7,693.16
$ -
8 1.302.97
$ 8.996.13
S 3.20548
$ -
$ 542.90
$ 3.748.39
S 3,205.48
$ -
$ 542.90
$ 3,748.39
S 3,205.48
$ -
$ 542.90
$ 3.748.39
S 3.205.48
$ -
S 542.90
$ 3.748.39
S 3.20548
$ -
S 542.90
$ 3.748.39
S 3,205.48
$ -
S 542.90
$ 3,748.39
S 3,205.48
$ -
$ 542.90
$ 3,748.39
S 3.205.48
$ -
S 542.90
$ 3.748.39
$ 4,505,014.72
I S 903,63036
$ 763,002.40
I $ 6,171,647.67
EXHIBIT "C"
Reimbursement Agreement RA1801
Lodi Shopping Center Public Improvements Reimbursement
Summary or Area of Benefit
Site
No.
Al'N
Acreage
1
058-03-009
33.21
'
058-03-010
4.07
4
058-03-016
22.0'
S 48.979.89
058-03-004
0.95
6
058-03-030
5.61
10
058-03-034
6.33
11
058-03-006
1.53
12
058-04-001
39.09
13
058-04-002
39.07
14
058-04-004
14.28
15
058-04-005
5.41
16
058-04-014
26.75
17
058-04-015
2.40
18
058-04-006
1.00
19
058-04-007
1.00
20
058-04-008
1.00
21
058-04-009
1.00
22
058-04-010
1.00
23
058-04-01 1
1.00
24
058-04-012
1.00
25
058-04-013
11)11
Total: 208.72
1/04/2019
Reimbursement
Fees
Total
Reimbursement
(Construction Costs
Fees)
(Construction
Costs)
Bassin
Land C oslC'keck
(Application Fee.
E:rsBiueniue. Ylau
Fee. insp. Fee){
S 1.002.064.60
$ 163.838.14
S 169.717.02
S 1,335.619.77
8 289.193.20
$ 24.083.40
S 48.979.89
S 362.256.49
S 591.432.90
$ 107.493.63
8 100.169.42
S 799,095.96
5 11.416.48
$ 5,621.43
S 1.933.58
S 18,971.49
5 67,417.
5 33,196.04
5 11.418.29
5 112.031.63
8 -
8 -
s -
s -
5 14.70923
$ 7,/ 4/ .77
5 2,491.26
$ 24.44326
5 147.420.25
$ -
$ 24,968.18
8 172,388.43
5 135.656.12
$ -
5 22,975.72
$ 158,631.84
8 45.774.32
$ -
5 7.752.68
5 53,527.00
$ 17.341.67
$ -
5 2,937.11
5 20,278.79
8 83,502.88
$ -
S 14.142.66
5 97,645.54
5 7,693.16
$ -
5 1,302.97
5 8,996.13
5 3.205.48
$ -
5 542.90
5 3,748.39
5 3.205.48
$ -
5 542.90
5 3,748.39
S 3,205.48
$ -
S 542.90
S 3,748.39
5 3.205.48
8 -
S 542.90
S 3,748.39
8 3.205.48
$ -
S 542.90
8 3,748.39
S 3,205.48
$ -
5 542.90
5 3,748.39
S 3.205.48
$ -
S 542.90
S 3,748.39
S 3,205.48
$ -
8 542.91)
5 3,748.39
$ 2,439,266.00
I $ 341,475.43
$ 413,132.01
I $ 3,193,873.44
Note:
Reimbursement Allocation Summary excludes Parcel 3 and Parcels 7, 8, & 9- the parcels owned by co -applicants
of this Reimbursement Agreement
RESOLUTION NO. 2019-65
A RESOLUTION OF THE LODI CITY COUNCIL AUTHORIZING
THE CITY MANAGER TO EXECUTE REIMBURSEMENT
AGREEMENT RA -18-01 FOR PUBLIC IMPROVEMENTS
CONSTRUCTED WITH LODI SHOPPING CENTER
WHEREAS, Browman Development Company (BDC), the developer of Lodi Shopping
Center, located at the southwest corner of Kettleman Lane and Lower Sacramento Road,
entered into an Improvement Agreement with the City, dated July 28, 2015; and
WHEREAS, as required under the conditions of approval for the project and terms of the
Improvement Agreement, BDC and by separate agreement, Elliot Homes, Inc. (collectively
"Applicants") completed certain public improvements on Westgate Drive and Century Boulevard,
including the installation of asphalt concrete pavement, concrete curb, gutter and sidewalk,
concrete median with landscape, water, wastewater, storm drainage lines, traffic signal
modifications at Kettleman Lane and Westgate Drive, wastewater trunk line relocation, storm
water basin, and storm water pump station; and
WHEREAS, portions of the public improvements installed by Applicants benefit
properties outside the project area, which lie between Kettleman Lane and Harney Lane; and
WHEREAS, Applicants request a Reimbursement Agreement in conformance with Lodi
Municipal Code (LMC) Chapter 17.62, to recover the cost of the improvements benefiting the
above-mentioned properties, including related costs such as land cost, engineering, inspection,
and plan check fees; and
WHEREAS, in conformance with LMC Chapter 17.62, staff recommends authorizing the
City Manager to execute Reimbursement Agreement RA -18-01 for public improvements
constructed with Lodi Shopping Center; and
WHEREAS, pursuant to LMC Section 17.62.050.A3, the reimbursable amount shall be
recalculated annually to include an amount attributable to interest, using the Engineering News
Record 20 Cities Construction Cost Index.
NOW, THEREFORE, BE IT RESOLVED that the Lodi City Council does hereby
authorize the City Manager to execute Reimbursement Agreement RA -18-01 for public
improvements constructed with Lodi Shopping Center.
Dated: April 17, 2019
I hereby certify that Resolution No. 2019-65 was passed and adopted by the City
Council of the City of Lodi in a regular meeting held April 17, 2019 by the following vote:
AYES: COUNCIL MEMBERS — Johnson, Kuehne, Mounce, and Nakanishi
NOES: COUNCIL MEMBERS — Mayor Chandler
ABSENT: COUNCIL MEMBERS — None
ABSTAIN: COUNCIL MEMBERS — None
yy\ _i2A.,,_z-i
NIFER M)FERRAIOLO
City Clerk
2019-65
&NH
Jennifer Ferraiolo
From: Jennifer Ferraiolo
Sent: Monday, April 15, 2019 3:07 PM
To: Matthew Wm. Nelson
Cc: Steve Schwabauer; Janice Magdich; Charles Swimley;
'JWarner@BrowmanDevelopment.com'; City Council; Andrew Keys
Subject: RE: Improvement Agreement for Gateway North Subdivision, Unit No. 1, Tract 3940 -
Blossom Land Company
Attachments: 061118 Letter to Mayor and City Council.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 the April 17 City Council meeting.
Jennifer M. Ferraiolo, MMC
City Clerk
P.O. Box 3006
Lodi, CA 95241-1910
(209) 333-6702
(209) 333-6807 FAX
From: Matthew Wm. Nelson [mailto:Matthew.Nelson@GreshamSavage.com]
Sent: Monday, April 15, 2019 2:41 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>
Subject: RE: Improvement Agreement for Gateway North Subdivision, Unit No. 1, Tract 3940 - Blossom Land Company
The following correspondence was inadvertently omitted as an attachment to my correspondence of April 8,
2019. Please provide to the City Council prior to the Wednesday, April 17, 2019 hearing.
Thank you for your time.
From: Janet Kuhr
Sent: Monday, April 08, 2019 3:41 PM
To: 'Cityclerk@lodi.gov'
Cc: 'sschwabauer@lodi.gov'; 'jmagdich@lodi.gov'; 'Cswimley@lodi.gov'; 'JWarner@BrowmanDevelopment.com'
Subject: Improvement Agreement for Gateway North Subdivision, Unit No. 1, Tract 3940 - Blossom Land Company
SENT ON BEHALF OF MATTHEW WM. NELSON:
Please see attached letter.
Matthew Wm. Nelson
Shareholder (* admitted in both California and Nevada)
1
Gresham Savage Nolan & Tilden, PC
550 East Hospitality Lane, Suite 300
San Bernardino, CA 92408-4205
Office: (909) 890-4499 Ext. 1812
Fax: (909) 890-0687
www.GreshamSavage.com
ma tthew . nelson Cag res h a m sa vag e . co m
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2
555 12th Street, Suite 1500
Oakland, California 94607
tel (510) 808-2000
fax (510) 444-1108
www.meyersnave,com
meyers
nave
June 11, 2018
Via E-mail and U.S. Mail
Honorable Mayor Alan Nakanishi
and Members of the Lodi City Council
P.O. Box 3006
Lodi, CA 95241-1910
citycouncil@lodi.gov
Re: Lodi Shopping Center (Sunwest Village)
Reimbursement Agreement RA -18-01
Shaye Diveley
Attorney at Law
sdiveley@meyersnave.com
Dear Mayor Nakanishi and Members of the City of Council:
Brownian Development Company, Inc. ("BDC") requests an immediate hearing on the City
Council's consideration of the Lodi Shopping Center (Sunwest Village) Reimbursement
Agreement RA -18-01 ("Reimbursement Agreement").
BDC, developer of the Sunwest Village Shopping Center, submitted an application to the
City of Lodi to initiate a reimbursement agreement on June 19, 2017. The community has
already received the benefits of BDC's installation of streets, storm drain and wastewater
facilities, and the City Council accepted the improvements on October 19, 2016.
Accordingly, BDC is entitled to reimbursement under Lodi Municipal Code Section 17.62.
The Reimbursement Agreement was first scheduled for public hearing on April 18, 2018, and
then for May 16, 2018, The matter was then taken off calendar, apparently at the request of a
May 10, 2018, letter submitted by Lodi-LSR Properties LLC ("Lodi-LSR") objecting to the
agreement ("Objection Letter").' As addressed below, there is absolutely no merit to these
objections—Lodi-LSR simply does not want to pay its fair share of the improvement costs
and BDC's Reimbursement Agreement is being held hostage as a result.
BDC secured an engineering firm selected by the City to calculate the proportional shares
and these calculations were confirmed by city staff to fully comply with state and local laws.
Indeed, city staff recommended approval of the Reimbursement Agreement last month and
' BDC was not provided with a copy of the Objection Letter until May 17, 2018, despite the
fact that its public hearing was taken off calendar apparently due to the issues raised in it.
A PROFESSIONAL LAW CORPORATION OAKLAND LOS ANGELES SACRAMENTO SANTA ROSA SAN DIEGO
June 11, 2018
Page 2
there is no rationale for the continued delay. Rather, it appears that BDC has been
inexplicably singled out for disparate treatment. This makes no sense given BDC's
longstanding commitment to the City, the benefits already conferred and staff
acknowledgement that the Reimbursement Agreement is consistent with applicable laws and
city practices. Accordingly,13DC respectfully requests that the City Council set the
Reimbursement Agreement for public bearing at its next meeting on June 20, 2018 or,
at the latest on July 18, 2018. BDC is not available in August and is entitled to a prompt
hearing on the Reimbursement Agreement.
The Engineering Firm Selected by the City Correctly Calculated the Proportional
Share of Each Parcel Benefitting from the Improvements
The Objection Letter submitted by Lodi-LSR argues that the calculations conducted by SNG
& Associates, an engineering firm selected by the City, for the Reimbursement Agreement
fail to comply with the Municipal Code. Lodi-LSR's argument is a self-serving attempt to
shortchange BDC and the other parties to the Reimbursement Agreement for the
improvements that have already been installed to the benefit of development in the area and
to the benefit of Lodi-LSR directly.
Lodi-LSR claims that reimbursement of a proportional share of improvement costs based on
the benefits received by each parcel is not permitted under Lodi Municipal Code Section
17.62.020. This "miscalculation" claim is based on a selective misquotation of the Municipal
Code that actually leaves out the relevant provision applicable to the Reimbursement
Agreement. Section 17.62.020 states in full (with emphasis added):
17.62.020 - Improvements to be reimbursed.
A. The cost of the following improvements shall be reimbursed
from the appropriate benefitting parcels. The terms of the
reimbursement shall comply with Chapter 15.64.
1. Oversize water mains and major crossings required
per Chapter 13.08;
2. Oversize sewers and storm drains required per
Chapter 13.12;
3. Excess width street construction and right-of-way
required per Chapter 15.44 and 17.50.030;
B. The cost of other improvements which benefit other property
or would be required of that property upon development shall
be reimbursed in compliance with this article.
The Objection Letter claims that under Section 17.62.020(A), BDC is only entitled to
reimbursement for "oversized" or "excess" improvements. However, Section 17.62.020(A)
clearly only applies to reimbursement of development impact fees (under "Chapter 15.64")
A PROFESSIONAL LAW CORPORATION OAKLAND LOS ANGELES SACRAMENTO SANTA ROSA SAN DIEGO
June 11, 2018
Page 3
for such improvements. Section 17.62.020(B) provides that "[t]he costs of other
improvements which benefit the property or would be required of that property" must be
reimbursed in compliance with the ordinance. Under the clear wording of the ordinance,
BDC is entitled to reimbursement of the costs it expended on improvements that benefitted
Lodi-LSR and the other property holders. It is also worthwhile to note that this standard is
consistent with exactly how the City has approved reimbursement agreements in the past,
including Lodi-LSR's own Rose Gate project.
Moreover, even if the provisions related to development impact fees would apply, Municipal
Code Section 15.64.010(D) provides "the city council (by resolution) has the authority and
the requirement to set forth the fees, benefit and impact areas, specific improvements, and
the estimated cost and reasonable relationship between the fee and the new development."
This means that the City Council has not only the power, but the obligation, to ensure that
fees collected for improvements bear a "reasonable relationship" to the benefits received. In
addition, BDC's conditions of approval for the shopping center project included the
condition that the City would participate in improvements for master plan storm drain
facilities and lines, water mains and other lines, and provide BDC with reimbursement per
Municipal Code Section 16.40, As a result, the City is required to provide such
reimbursement to BDC.
Consistent with the public policy behind such agreements, the City has applied a proportional
share approach in several reimbursement agreements, including one—Reimbursement
Agreement No. RA -16- 01 --that was approved for Lodi-LSR's own Rose Gate
development in March 2017 and was also prepared by SNG & Associates. Indeed, state
law requires that BDC must be reimbursed for the expense of constructing supplemental
improvements for the benefit of later developments and adjacent properties. (Govt.
Code § 66486,) Applying Lodi-LSR's interpretation of Section 17.62.020 would turn the
entire reimbursement agreement program on its head. The City is not permitted to ignore
these rules to deprive BDC of its mandatory right to reimbursement and to unjustly enrich
Lodi-LSR, unless the City wants to assume Lodi-LSR's reimbursement obligation pursuant
to Government Code Section 66486.
Given that Lodi-LSR's argument is based on a fundamental misstatement of the mandatory
reimbursement requirement under state and local law, the rest of its "miscalculation" claims
fall by the wayside.2 The most blatant example of Lodi-LSR's attempt to avoid paying its
fair share is its challenge to BDC's reimbursement for segment two of the new sewer
improvements. Segment two involved the relocation of existing industrial sewer lines on
Lodi-LSR's property to a different site, which allows for Lodi-LSR to build homes on 18
sites that were otherwise undevelopable, after Lodi-LSR compensates the City for the
2 Nonetheless, BDC did take the opportunity to address each of these miscalculation claims
in a separate letter to Mr. Schwabauer.
A PROFESSIONAL LAW CORPORATION OAKLAND LOS ANGELES SACRAMENTO SANTA ROSA SAN DIEGO
June 11, 2018
Page 4
abandonment of the sewer easement.3 BDC paid the entire amount for this relocation (less
the cost of the pipe materials, which were paid by the City) without receiving any benefit,
and is entitled to recoup its costs in excess of what it would have spent on the sewer
connection for the shopping center.
In response to the Objection Letter, BDC did take the opportunity to review again SNG &
Associates' calculations for. the Reimbursement Agreement and identified several costs that
were omitted from the original report that would statutorily require reimbursement. For
example, in effort to make compromises, BDC did not originally seek reimbursement for the
statutorily provided legal descriptions, mapping and legal documentation for land
dedications, engineering work, permit fees, and city plan check fees on, among other things,
the Westgate dedication, land for the basin, and Kettleman Lane improvements, which are all
otherwise statutorily reimbursable. BDC previously sent an email to Stephen Schwabauer on
May 16, 2018, 'requesting the foregoing additional costs be incorporated into the SNG &
Associates report, and then also submitted the attached letter to Charles Swimley on June 4,
2018, that also outlines these additional, statutorily required costs, as well as confirms that
the other minor changes requested by city staff were incorporated into the revised report from
SNG & Associates. In addition to the foregoing, BDC will also seek interest as permitted
under state and local law from the time of the acceptance of the improvements.
The Reimbursement Agreement Application Is Timely
The Objection Letter also claims that the Reimbursement Agreement is untimely. Again, this
is an absurd and self-serving argument aimed at improperly depriving BDC of the same
rights and benefits enjoyed by other developers, including Lodi-LSR.
Lodi Municipal Code Section 17.62.040 provides that "[a]ll applications for reimbursement
shall be filed no later than one year after the acceptance of the improvements by the city."
Here, the City Council accepted the improvements on October 19, 2016, and BDC submitted
an application to the City for the Reimbursement Agreement on June 19, 2017. This is less
than the one-year time period specified by Section 17.62.040. Yet, Lodi-LSR claims that the
City had to determine the application to be complete within one year of the acceptance of the
improvements to be timely under Section 17.62.040. The Ordinance contains no such
requirement. Indeed, such a requirement would be patently unfair, as BDC has no control
over city staff's review of the Reimbursement Agreement application.
While it is true that Section 17.62.050 provides guidance for the City to prepare a
reimbursement agreement within 60 days of receipt of the completed application and for the
City Council to conduct a hearing within 90 days of receipt of the completed application,
there are no remedies specified if these deadlines are not met. Clearly, BDC should not be
responsible for the City's failure to meet the foregoing deadlines in its efforts to fairly
allocate the reimbursable costs. Moreover, the Reimbursement Agreement was particularly
3 As a reminder, the City cannot give Lodi-LSR the easement without adequate compensation
to the City as it would be an improper gift of public funds. (Cal. Const., art. XVI, § 6.)
A PROFESSIONAL LAW CORPORATION OAKLAND LOS ANGELES SACRAMENTO SANTA ROSA SAN DIEGO
June 11, 2018
Page 5
complex with many components and different areas of benefits. SNG & Associates and
BDC had several meetings with the city staff to resolve questions and to provide additional
information to ensure the Reimbursement Agreement complied with all requirements and
was fair and equitable for all involved.
Lodi-LSR urges the City Council to treat city staff's careful review of the Reimbursement
Agreement and the supporting analysis as a de facto denial, forever depriving BDC of its
mandatory right to reimbursement from developers, including Lodi-LSR, that have benefitted
from the improvements provided by BDC. To be clear, BDC has already constructed and
paid for the improvements at issue in the Reimbursement Agreement. BDC has an
investment -backed expectation of and a legitimate claim of entitlement to the reimbursement
of those costs. Changing the rules this late in the game, after the City and Lodi-LSR have
already received the benefits of BDC's improvements, would be unprecedented. This would
inexplicably single out BDC for disparate treatment and deprive it of due process and equal
protection under the law. This argument must be rejected.
BDC is proud of its role in the Lodi community as one of the largest commercial and retail
landholder and an economic driver for the region. BDC seeks only fair and consistent
treatment from the City, including the prompt scheduling of a public hearing on the
Reimbursement Agreement. BDC appreciates the City Council's consideration of this
important matter and looks forward to a long and continued shared relationship with the City
and the City Council.
Sincerely yours,
Shaye Dive y
c: Stephen Schwabauer, City Manager
Charles Swimley Jr., Public Works Director
Enclosure
2973328.3
A PROFESSIONAL LAW CORPORATION OAKLAND LOS ANGELES SACRAMENTO SANTA ROSA SAN DIEGO
June 4, 2018
Charles E. Swimley Jr.
Public Works Director
City of Lodi
BOC
BROWMAN DEVELOPMENT COMPANY, INC.
Development L -i• inq o Management
Dear Mr. Swimley,
Below is a summary of the changes that the city requested from SNG & Associates after our meeting on
5/4/18. These changes have been incorporated into the enclosed revised report. In addition, through
further review, we found modifications that we believe require reimbursement. We have summarized
those additional items below.
City Requested Chanes:
• 1. Page 5 -- Table 1.1: corrected typo for unit cost of Backfill Planters line item ($3,750 LS). [This was a
typo, and it has no impact on Total Costs]
2. Clarification about IW Relocation:
a. Sean Nathan informed us that the 30" Industrial Wastewater line was not installed in Sewer Segment
3 Therefore, I have corrected the allocation of the reimbursement credit between Segment 2 and
Segment 3 beneficiaries on Table 2.1.
b. PageI0, 1 <nhle 2.i: Line Item 19 - Segment 2 credit for pipe material cost is changed from $151,657 to
$192,410, and Segment 3 credit is reduced from $101,105 to $60,353. (Also, a new footnote was added
to bottom of Page 10 to clarify how the allocation of the pipe material cost reimbursement was
allocated between Segment 2 and Segment 3.)
Table 7.3 updated accordingly to allocate Sewer flelrnbursernents for Area of Benefit parcels
• Parcel 1- Segment 3 Share of Cost changed from $87,284 to $103,638. (Total changed to
$219,573.)
• Parcel 2 -- Segment 3 Cost changed from $99 to $118. (Total changed to $249.)
• Parcel 3 - (BDC parcel) Segment 3 changed from $92,792 to $110,178. (Total changed to
$245,431.)
• Parcel 4 - Segment 2 Share changed from $362,584 to $328,803. Segment 3 share changed from
$37,329 to $44,323. (Total changed to $373,126.)
• Parcel 7 - Segment 2 cost changed from $74,819 to $67,848: (Total cost changed to $67,848.)
1556 PARKSIDE DRIVE, WALNUT CREEK, CA 94596-3556 • (925) 588-2200 • FAX: (925) 588-2230
3. Steve Pecin correction re: Table 2.2b typo:
a. Page 12: as noted in Steve Pechin's comments, BDC's parcel's imputed share of cost for relocation of
Segment 2 sewer lines was incorrectly reported as 12% in Table 2.2b: proportionate share is actually
10.39%. (Correction made to Table 2.2b and Table 2.3.)
4. Page 27 -- Reimbursement Cost Summary:
Table 4.1 has been updated to incorporate changes to Sewer Cost Allocation, (which also changes Total
Reimbursement Cost Column too.)
a. Pape 29 - Table 4.3: Total Reimbursement Application Fee, Engineering Design Cost, Plan Check and
Inspection Fee is unchanged. However, I have changed the allocation of the applicable fees on Table 4.3
to be proportionate based on Construction Cost (instead of Construction + Basin Land Cost.)
Engineering Design Cost, Plan Check Fee, and Inspection Fee calculation excludes the Basin land cost, so
distribution of these costs should exclude land costs too; this change Impacts every parcel in the Area of
Benefit, and I have updated Table 4.3 (and the Exhibit "C" tables on pages 75,76, and 77) accordingly.
5. Exhibit C Reimbursement Agreement RA 1801: The above changes have been reflected in the
updated Exhibit "C" Summary of Area of Benefit. Total Reimbursement from Area of Benefit excluding
BDC and Elliot Homes parcels changed from $3,050,817 to $3,060,138.
Proposed Summary of Additional Changes (not incorporated into report):
1. Westgate Street Right of Way (15.44 Reimbursement for Excess Street Width) — Add to Section 1
of the Area of Benefit Engineer Report the additional Right of Way dedicated from the Sunwest
Shopping Center for the construction of Westgate. 23,382.29 Square Feet of Right of Way to be
reimbursed. See Attached Map. Land Value of $8.83 per PSA with Walmart total
reimbursement for Right of Way $206,465.62.
2. Add Basin Land cost back to appraised value $1,200,000. Applicants felt rushed and pressured
into making a compromise on 3/7/18 to ensure original report was accepted by staff to hold
meetings on 4/4/18 and 4/18/48.
3. Add back the below. Applicants were trying to make compromises to ensure a fair and balanced
reimbursement agreement, but the below costs are real costs that are attributed to land and
easement dedications. For example, the amount of engineering work to create legal
descriptions, mapping, and legal documentation to dedicate the land for the basin is a real cost
that should be borne by all properties benefiting from such improvements.
a. Engineering overhead of 10% on:
i. Land cost (basin & Westgate dedication)
ii. SJCOG dedication
iii. Sewer Easements
b. City Plan Check Fees
i. Land cost (basin & Westgate dedication)
ii. SJCOG dedication
iii. Sewer Easements
4. Add the following Kettleman improvements to the Section 1 Westgate Improvements.
a. Turn pockets
b. Kettleman Median concrete improvements
c. Kettleman Landscape Improvements
These improvements are vital to the traffic impacts and movements into and on Westgate. They
should have been Included into the estimates for Westgate because without these
improvements Westgate would not function.
We request to review the above items with SNG & Associates, to incorporate into the final study
prior to acceptance of the resolution.
Aaron Zuzack
Director of Construction
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GRESHAM SAVAGE
April 8, 2019
VIA E-MAIL [Cityclerk@lodi.gov]
Matthew.NelsonLGreshamSavage.com • San Bernardino Office
(909) 890-4499 • fax (909) 890-9877
Honorable Mayor and City Council
City of Lodi
P.O. Box 3006
Lodi, California 95241-1910
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. in the above referenced matter. Please accept this
correspondence as our response to the presentation and documents provided by Steve
Herum, counsel for FCB Homes, at the February 7, 2019 City Council meeting to
consider a resolution authorizing the City Manager to execute a Reimbursement
Agreement RA -18-01 ("Reimbursement Agreement"), for public improvements
constructed with the Lodi Shopping Center.
1. FCB Homes last minute presentation was not made in good faith especially in
light of the fact that the Reimbursement Agreement was originally set for April
2018 and has been delayed multiple times since to address FCB Homes'
frivolous complaints.
First, we would like to address Mr. Herum's tactics at the hearing. Last minute
presentations and "document dumps" are rarely, if ever, made in good faith and serve
no other purpose than to delay the decision making process. Finally, Mr. Herum's
conduct here was especially egregious because the City had already provided his
client, FCB Homes, two opportunities (on January 14 and January 23, 2019) to review
and comment on the peer reviewed Engineer's Report before finalizing the Staff
Report dated February 6, 2019 ("Staff Report"). In fact, at FCB's request, the City had
FCB's analysis of its purported discrepancies in the city Reimbursement Agreement
reviewed and analyzed by the peer reviewing Engineer, GSC, which the Engineer
rejected all of FCB's arguments as baseless and without support. It should be noted
• \ vf?I>I\() 550 East Hospitality Lane, Suite 300 • San Bernardino, California 92408
\\ 1)11 0) 550 West C Street, Suite 1810 • San Diego, California 92101
P..IV 1 RSIDI Mission Inn Plaza • Riverside, California 92501 (By Appointment Only)
GreshatnSavage.com
W2060 -Lodi CA; Store #1789-03--3630355.1
Honorable Mayor and City Council
City of Lodi
April 8, 2019
Page 2
that the same opportunity to review and comment was not afforded the developer of
the Lodi Shopping Center, Browman Development Company ("BDC") and Walmart.
Furthermore, the Staff Report was available on the City's website at approximately
1:00 p.m. on January 31, 2019, more than six days before the hearing, providing Mr.
Herum ample opportunity to respond prior to the City Council hearing.
Despite these multiple opportunities to provide a substantive response to the Staff
Report, Staff recommendations and the Reimbursement Agreement, Mr. Herum
waited until the public comment period to present his "case." The "case," however,
left much to be desired with the presentation of "evidence" consisting of nothing more
than one excerpt from the Government Code and three excerpts from the Lodi
Municipal Code, along with a disorganized scattershot oral presentation. No new
evidence was provided by Mr. Herum, nor did he present any tangible or coherent
legal argument. It is well established California law that at a public hearing, evidence
must be presented in a manner that gives the agency the opportunity to respond with
countervailing evidence. The City cannot be expected to pore through the documents
provided to find something that arguably supports FCB Homes' position. (Citizens for
Responsible Equitable Environmental Development v. City of San Diego (2011) 196
Cal.App.4th 515). Although the City Council took the conservative approach by
continuing the hearing, it is our position that on February 7, the Council would have
been legally justified in quickly considering and then rejecting Mr. Herum's "case."
At the upcoming continued hearing of April 17, 2019, we fully anticipate that Mr.
Herum will again attempt to present last minute "evidence" to cloud the public record
and to further delay the approval. If that happens, the City Council can, and should,
legally disregard any additional information because Mr. Herum will again have not
provided the City with the opportunity to receive and respond to articulated factual
issues and legal theories. (Coalition for Student Action v. City of Fullerton (1984) 153
Cal.App.3d 1194, 1998.) These bad faith tactics should be repudiated and not
rewarded with yet another delay.
2. The Application for the Reimbursement was Timely
Although Mr. Herum's "case" was extremely thin and lacked legal substance, it
appeared he was making two claims. The first was an objection that the application
for the Reimbursement Agreement is untimely. This is a self-serving argument aimed
at improperly depriving BDC and Walmart of the same rights and benefits enjoyed by
other developers, including FCB Homes. Furthermore, this is not a new argument, as
W2060 -Lodi CA; Store #1789-03 -- 3630355.1
Honorable Mayor and City Council
City of Lodi
April 8, 2019
Page 3
it was previously presented by Mr. Herum in his letter dated May 10, 2018 and
responded to by BDC's Counsel on June 11, 2018. Copies of both of those letters are
attached. Similarly, the City of Lodi found this argument baseless and initially set this
Reimbursement Agreement for hearing recommending approval on October 17, 2018.
Restating BDC Counsel's letter, Lodi Municipal Code Section 17.62.040 provides that
"[a]11 applications for reimbursement shall be filed no later than one year after the
acceptance of the improvements by the city." Here, the City Council accepted the
improvements on October 19, 2016, and BDC submitted an application to the City for
the Reimbursement Agreement on June 19, 2017. This is less than the one-year time
period specified by Section 17.62.040. Yet, FCB Homes claims that the City had to
determine the application to be complete within one year of the acceptance of the
improvements to be timely under Section 17.62.040. The Ordinance contains no such
requirement. Indeed, such a requirement would be patently unfair, as BDC has no
control over city staff's review of the Reimbursement Agreement application. To
further illustrate the baseless nature of Mr. Herum's claim, his own client did not
receive approval of the Rose Gate reimbursement agreement until March 1, 2017, more
than 2 and 1/2 years after the City accepted those improvements on June 18, 2014.
Certainly Mr. Herum would not suggest that his client receive preferential treatment
from the City. Rather, this is a transparent and shortsighted attempt by FCB Homes
to avoid paying its fair share of improvements constructed with the Lodi Shopping
Center. Further, in our case, it neglects to highlight that FCB is solely responsible for
over 12 months or more of delay in getting the Reimbursement Agreement approved
and is still delaying the approval today.
While it is true that Section 17.62.050 provides guidance for the City to prepare a
reimbursement agreement within 60 days of receipt of the completed application and
for the City Council to conduct a hearing within 90 days of receipt of the completed
application, there are no remedies specified if these deadlines are not met. Clearly,
BDC should not be responsible for the City's adherence to the foregoing deadlines in
its efforts to fairly allocate the reimbursable costs and deal with over a year of FCB's
frivolous claims. Moreover, the Reimbursement Agreement was particularly complex
with many components and different areas of benefits at the City's request. BDC had
several meetings with the City's third party engineering consultants and City staff to
resolve questions and to provide additional information to ensure the Reimbursement
Agreement complied with all requirements and was fair and equitable for all involved.
There were also four meetings between May and August 20018 with the City jointly
attended by BDC and FCB Homes. At no time, however, did FCB Homes reach out to
W2060 -Lodi CA; Store #1759-03 -- 3630355.1
Honorable Mayor and City Council
City of Lodi
April 8, 2019
Page 4
BDC independent of the City to attempt to reach a mutually acceptable agreement.
Based on the foregoing, the application for Reimbursement was timely and is properly
before the City Council for approval
3. All costs related to the improvements, direct and indirect, are reimbursable
The second argument is that the Reimbursement Agreement can only reimburse for
direct construction costs while indirect construction costs, including construction mark
up, easement costs, water and air quality compliance costs, agricultural mitigation fees
and land costs, are not reimbursable. Other than providing a copy of Government
Code section 66419 to the City Council, however, FCB Homes has not provided any
legal support for this argument. Furthermore, Section 66419, which is restated in its
entirety below, expands the definition of "improvement" to include "street work" and
"utilities," but does not make any distinction between the recovery of direct and
indirect costs:
(a) "Improvement" refers to any street work and utilities to be installed, or
agreed to be installed, by the subdivider on the land to be used for public or
private streets, highways, ways, and easements, as are necessary for the
general use of the lot owners in the subdivision and local neighborhood traffic
and drainage needs as a condition precedent to the approval and acceptance of
the final map thereof.
(b) "Improvement" also refers to any other specific improvements or types of
improvements, the installation of which, either by the subdivider, by public
agencies, by private utilities, by any other entity approved by the local agency,
or by a combination thereof, is necessary to ensure consistency with, or
implementation of, the general plan or any applicable specific plan.
In fact, an exhaustive review of all California statutes and case law does not reveal any
examples that support FCB Home's position. To the contrary, the usage of
"improvement" and "streetwork" in the Government Code and other statutes leads to
the logical and common sense conclusion that all costs, direct and indirect, are
included in the definition. For example, Government Code sections 43420 to 43431
authorizes a city to create a Street Work Revolving Fund to fund "the cost of the work
or improvement" for "the establishing, laying out, opening, widening, extending,
straightening, constructing, improving or altering of streets, highways, boulevards
and public ways." (Government Code §§ 43420 (a), 43421). It is significant that the
W2060 -Lodi CA; Store #1789-03 -- 3630355.1
Honorable Mayor and City Council
City of Lodi
April 8, 2019
Page 5
term "cost of the work or improvement" is not further compartmentalized into
"direct" or "indirect" costs as alleged by FCB Homes. The practical reason for this is
the legislature recognizes that "street work" and other improvements involve a broad
range of costs from materials, labor, bonds, insurance, dust control and overhead and
that it would be nonsensical and counterproductive to further define the term "cost."
By avoiding any narrow definition, the intent of the legislature in this Government
Code section and in other related use of "improvement," "street work," and other
terms was to acknowledge that all costs related to improvements should be funded,
bonded or reimbursed as needed.
This broad definition of "cost" as it is related to improvements is also supported by
case law interpreting performance bonds. As the City Council may know,
performance bonds are a type of contract bond that guarantees the satisfactory
completion of a construction project and typically protects 100 percent of the contract
price. Performance bonds ensure that a contractor will complete a project. If the
contractor does not complete the project, the performance bond guarantees against
financial loss to the City or project owner. The contract price, which is bonded, will
include all costs for the improvement, direct and indirect. FCB was itself reimbursed
for costs it claims are now not reimbursable in other Reimbursement Agreements.
Herum's argument is made up. The improvements could not be completed without
both the materials and labor associated with installation of such materials.
In County of Los Angeles v. Margulis (1935) 6 Cal.App.2d 57, the County of Los Angeles
sued to recover on a performance bond posted by a subdivider to secure faithful
performance of an agreement to improve streets and construct a storm drain. The trial
court ruled in favor of the County and on appeal, the Court of Appeal affirmed the
judgment, stating:
The contract provided for the improvement of certain streets, avenues and
alleys and the installation of a storm drain.... Under the contract the county
was entitled to have these highways so improved, and this right was of a
value equal to the cost of the work. The contract having been breached by a
failure to perform, the county was entitled to a sum equal to the cost of the
uncompleted portion of the work; ... Under the contract the county was entitled
to receive work of a certain value. This work not having been received, the
county was entitled to receive in lieu thereof as damages a sum of money equal
in value to the uncompleted work which the contract called for, and appellant
W2060 -Lodi CA: Store #1739-03 -- 3630355.1
Honorable Mayor and City Council
City of Lodi
April 8, 2019
Page 6
as surety was liable under its bond up to the penal sum therein specified. (6
Cal.App.2d at 59-60.) (emphasis added)
If FCB Homes is correct as to the limitation of reimbursable improvements to direct
costs, likewise performance bonds would only be able to cover the direct costs of the
improvements. This leads to an illogical and absurd result of a full range of
construction costs that could not be covered by bonds that is not supported by the law,
common sense and in practice. The cost of improvement work covered under a
performance bond would be the same covered under a reimbursement agreement.
As for the reimbursement of the cost of dedicated land, long standing California law
holds that there needs to be a nexus between a project condition, including the
dedication of land, and the impact of development. (Ayres v. City Council of Los Angeles
(1949) 34 Ca1.2d 31, 42) The corollary of this holding is that if a jurisdiction requires
the dedication of land that benefits other landowners that is beyond the nexus of the
impact of development, then the conditioned party can demand for reimbursement
either from the jurisdiction or the benefitted landowners. In the present case, the City
of Lodi, through its authority under the Government Code and the Municipal Code
has accounted for this extra -nexus land dedication cost in the reimbursement
agreement.
The City's own Improvement Agreement mandates certain things that the Developer
must provide such as full time supervision and compliance with water quality laws,
dust control and insurance. If defies Logic that the City could require these items as
part of an Improvement Agreement and then later take the position that they are not
construction costs. Finally, the Lodi Municipal Code section 17.62.020(A)(3) specially
states that "excess width construction and right-of-way" required for off-site
improvements and dedications are reimbursable costs. Accordingly, the City has
appropriately included all recoverable costs for the subject improvements in
Reimbursement Agreement (RA -18-01) and the City Council is legally justified in
approving the Reimbursement Agreement that is currently before it. Beyond legal
reasons, no developer would ever agree to go first and construct improvements
benefitting other properties knowing it would only be reimbursed a small portion of
its actual material costs benefitting the other properties.
W2060 -Lodi CA; Store 1789-03 -- 3630355.1
Honorable Mayor and City Council
City of Lodi
April 8, 2019
Page 7
4. Conclusion
The Reimbursement Agreement has been subject to an incredible, and arguably
unprecedented, level of scrutiny, detail, peer review and analysis. Staff is to be
commended for the time and effort in addressing each and every issue. FCB Homes
has been provided multiple opportunities to review and comment and the City has
skillfully and thoroughly responded to each of the concerns. No other affected
property owner has suggested this Reimbursement Agreement is anything but fair
and appropriate. The end result of this long and arduous process is that the pending
Reimbursement Agreement is legally adequate, supported by overwhelming evidence
and should be approved.
If the City Council is considering a denial of the Reimbursement Agreement, this
would be problematic on multiple fronts. First, a denial would be arbitrary and
capricious and not supported by any facts of evidence. The only opponent, FCB
Homes, has made baseless and factually devoid arguments without any legal support
against the Reimbursement Agreement and each and every argument have been
addressed and countered. Second, a denial would result in the City Council stepping
in the shoes of FCB Homes and agreeing to make up the short fall. (Lodi Municipal
Code § 17.62.010(B)) If this is the City Council's preference, then BDC and Walmart
will make an immediate demand for reimbursement of the shortfall. Not only would
this unnecessarily add to the financial liability of the City, the practical effect would be
the City would be subsidizing the FCB Homes project with public funds and would
require the entire FCB Homes project to be constructed at prevailing wage. Finally,
denial of the Reimbursement Agreement result in an inequity and sends the message
to other developers that if you are difficult and obstinate enough, then you can avoid
paying your fair share in the City of Lodi. No other developer will ever again
undertake work that benefits another party, because the City will have endorsed a
system that penalizes the first party to develop and unjustly enriches other parties
who later develop because they can avoid fair costs that equity dictates should be
paid.
We trust that the City Council will evaluate all of this information and come to the
only factual, legal and equitable conclusion: that the Reimbursement Agreement must
be approved.
W2060 -Lodi CA; Store #1789-03 -- 3630355.1
Honorable Mayor and City Council
City of Lodi
April 8, 2019
Page 8
Thank you for your time and consideration.
Very truly yours,
atthew Wm. Nelson, of
GRESHAM SAVAGE
NOLAN & TILDEN,
A Professional Corporation
MWN:jmk
Enclosures
cc: City Manager
City Attorney
Public Works Director
Browman Development Company
W2060 -Lodi CA: Store (1789-03--3630355.1
HERUM CRABTREE SUNTAG
Steven A. Herum
sherum@herumcrabtree.com
May 10, 2018
D. Stephen Schwabauer
City Manager
City of Lodi
P.O. Box 3006
Lodi, CA 95241-1910
Re: Draft Lodi Shopping Center (Sunwest Village) Reimbursement Agreement
Dear Mr. Schwabauer:
This office represents Lodi-LSR Properties, LLC
Lodi-LSR Properties, LLC has retained me to review the proposed reimbursement
agreement in favor of Lodi Shopping Center (Sunwest Village) and the accompanying
report prepared by Nanda Gottiparthy and Mike O'Connor of SNG & Associates, a San
Francisco Bay area engineering firm (SNG Report).
Based upon my reading of the SNG Report the draft reimbursement agreement is
inconsistent with, conflicts with and does not conform to the City of Lodi ordinance
concerning reimbursement. Therefore the draft reimbursement agreement exceeds
the power granted by the ordinance to provide reimbursement agreements and
amounts to a prejudicial abuse of discretion as a matter of law.
While we anticipate the Lodi Shopping Center developer will vigorously disagree with
all aspects of this analysis there are substantial foundational and organic problems with
the reimbursement plan at this time and these foundational and organic problems must
be addressed before the Lodi City Council considers the request. Pivotal to the
defective analysis is generally applying a formula unavailable under the Lodi
Ordinance.
APPLICATION OF WRONG FORMULA BY SNG & ASSOCIATES IN DETERMINING FINANCIAL
RESPONSIBILITY OF OTHER PROPERTIES
Lodi Municipal Code section 17.62,020.A.3 states in relevant part:
17.62.020 - Improvements to be reimbursed.
A. The cost of the following improvements shall be reimbursed from
the appropriate benefitting parcels. The terms of the reimbursement
shall comply with Chapter 15.64.
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
May 11, 2018
Page 2 of 4
3. Excess width street construction and right-of-way required per
Chapter 15.44 and 17.50.030;
(Bolding added.) Yet page 4 of the SNG Report states that "[c]osts are allocated to the
benefitting parcels based on proportional share of frontage improvements to each of
the parcels along Westgate Drive." (Bolding added.) "Proportional share" involves a
measurably different context and formula that "excess width". To put a finer point on it,
these competing terms supply completely different concepts.,
This method for determining costs, benefits and the burden of adjacent parcels
conflicts with 17.62.020.A.3. The method expressed by Table 1.1, at pages 5 and 6,
appears fully inconsistent with the Ordinance rule that only the "excess" is eligible for
reimbursement. Table 1.1 set out costs that would be required if there were no other
parties and then allocates everyone's pro -rata share. But the scope of the City
Ordinance, at least concerning streets, does not appear to authorize a true pro -rata
share formula when determining third party reimbursement obligations. Rather the
Ordinance focuses exclusively on the "excess" caused by such third parties.
This argument applies with equal dignity for reimbursement of water mains
(17.62.020.A.1) which limits reimbursement to "oversizing", and sewer and storm drain
(17;62.020.A.2) which also uses the term "oversizing". Again Table 1.1 seems to apply a
formula assuming this was a joint construction project where each party's proportional
contribution to fund infrastructure needed to be determine rather than determining the
"excess" or "oversizing" that Sunwest Village was compelled to provide due to third
party needs.
The treatment of sewer construction reimbursement is equally incoherent with various
formulas and assumptions applied without taking into account the Ordinance. The
sewer improvement is broken into three "segments": segment one, two and three.
Measurably different reimbursement formulas and assumptions are applied to each
segment in calculating the reimbursement owed Sunwest Village. The only common
thread is that each formula is adjusted in a manner to benefit the Sunwest Village
developer by maximizing reimbursement owed to it by other property owners. For
instance, Table 2.2a at page 11, concerning segment one sewer improvements,
produces the percentage each APN area owes and the calculation relies on land use
density or intensity, the zoning classification and the number of acres.2 The formula
doesn't define or mention "excess" or "oversizing". Instead it attempts to produce a
' Webster's New Collegiate Dictionary defines "proportional" as "the relation of one part to another or the
whole with respect to magnitude, quantity or degree: RATIO" whereas "excess" is defined as "the amount
or degree by which one thing or quality exceeds another". To the same extent, "oversize" is defined as
"being of more than ordinary size". For our purposes "excess" and "oversize" seem to mean the same thing
while also conflicting with the term "proportional".
2 This is a classic and pure "proportion" formulation and does not and is not designed to and cannot
identify the "excess" or "oversizing".
2611-002\SAH\368548.docx
D. Stephen Schwabauer
May 11,2018
Page 3 of 4
"pro -rata" percent. The report's treatment of segment two sewer improvements richly
and expressly illustrates the defective analysis: "so the net cost of the relocation of
these sewer pipelines is allocated to these parcels in proportion to the area
encumbered". (Italics added.) Segment three sewer improvements are then subject to
yet a different formula to determine reimbursement responsibilities of third parties. But
these three formulas, individually and cumulative, are inconsistent with and exceed the
authority granted by the Lodi Municipal Ordinance. The Ordinance is not a pro -rata
ordinance. Again at page 8 the report wrongly concludes that insurance and profit
fees charged by the developer would have been reduced to 1.8% of Sunwest Village's
total onsite development costs. The report assumes Sunwest Village has no fixed costs;
that is, but for oversizing obligations its trench would have constructed been only 2% of
the trench constructed, would have needed two percent of a backhoe and other
equipment and would have cost only 2% of the total cost of constructing the trench.
See also page 12. This is absurd.
Table 3.2 at page 20, concerning storm drain improvements, reaches the same and
equally wrong result. Table 3.2 provides unit costs for aspects of the storm drain system.
Unit costs, of course, are irrelevant to determine "oversizing". It then allocates costs
according to acreage. This formula is fully unrelated to determining "oversizing" and
instead follows an unavailable pro -rata formula.
The entire document is contaminated by this flawed analysis. For instance at page 28
the report out and out states: "the fair share division of these fees and design costs is
then calculated based on the proportionate share of the total construction costs
attributed to each benefiting parcel." (Italics added.) A "fair share division" produces
a "pro -rata" contribution, but does not define oversizing.
Simply stated: Wrong formula; wrong result.
TIMING OF REQUEST FOR REIMBURSEMENT
Lodi Municipal Code section 17.62.040.8 states in relevant part:
All applications for reimbursement shall be filed no later than one year
after the acceptance of the improvements by the city.
Factually, Sunwest Village improvements were accepted on October 19, 2016. The
draft Reimbursement Agreement states that on June 19, 2017, the Lodi Shopping
Center Development Project developer applied to initiate a reimbursement agreement
and area of benefit for the installation of certain street, storm drain, and wastewater
facilities with the City of Lodi. Section 17.62 requires all applications for reimbursement
be filed no later than one year after acceptance of the improvement by the City while
Section 17.62.050 provide that within 60 days of receiving a completed application the
Public Works Director shall prepare a reimbursement agreement containing certain
provisions. Section 17.62.A.5. requires the City Council to conduct a public hearing.
2611-002\SAH\368548.docx
D. Stephen Schwabauer
May 11, 2018
Page 4 of 4
The hearing shall be conducted within 90 days of receipt of the completed
application.
In order to satisfy the time requirements of the Lodi Ordinance a developer must not just
file or initiate a request for a reimbursement agreement, it must have a fully complete
application, as determined by the City Public Works Department, on or before
October 19, 2017, in order to be timely filed and in compliance with the Ordinance.
Hence the Ordinance provides that the last day to conduct a noticed public hearing
for this request for a reimbursement agreement was February 18, 2018. No
contemporaneous written information indicating the City Public Works Department
found the application fully complete on or before October 19, 2017 or any written
information indicating a Lodi City Council properly noticed public hearing was
scheduled on or before February 18, 2018. Hence, the time for Sunwest Village to
request and receive a reimbursement agreement from the City of Lodi lapsed
according to the controlling City of Lodi Ordinance.
When presented with this issue, Public Works staff appeared to agree that the time
deadlines were not observed. But the Ordinance says what the Ordinance says. The
Lodi City staff is not vested with unfettered discretion to either follow or dispense with
ordinance requirements. The practice described by the City staff violates fundamental
notions of Due Process.
REQUEST FOR CITY ACTION
My client respectfully asks the City of Lodi to continue the public hearing now
scheduled for Tuesday May 15, 2018 to consider Sunwest Village's request for a
reimbursement agreement. The draft reimbursement agreement clearly exceeds the
authority provided by the Lodi Municipal Code. We believe the appropriate action is
for the City staff, including the City Attorney, to carefully review this faulty draft
reimbursement agreement against the authority granted by the City Municipal Code.
We believe the Municipal Code does not authorize approval of pending
reimbursement agreement.
Further, we recommend the City require Sunwest Village and the affected property
owners meet to resolve differences over requested reimbursements. The superior
resolution of this matter involves the affected property owners and developers working
collaboratively to resolve the instant dispute.
Very truly your
STEVEN A. HERUM
Attorney -at -Law
cc: Client
2611-002\SAH\368548.docx
HERUM CRABTREE `,�SUNTAG
ATTORNEYS
Steven A. Herum
sherum@herumcrabtree.com
June 18, 2018
Ms. Shaye Diveley
Meyers Nave
555 12th Street Suite 1500
Oakland, California 94607
Re: Your letter of June 11, 2018
Dear Ms. Diveley:
I have reviewed your letter of June 11.
Please understand my client's overarching objective is to reach a mutually agreeable
resolution of a dispute over the reimbursement agreement. The letter failed to alter this
overarching objective. Given this objective it would be pointless in the extreme to
correct the strained arguments and incorrect facts presented in the June 11 letter.
The threat presented at the end of the June 11 letter is clearly and unambiguously
intended to have a chilling effect on my client's participation in a public process that is
integrated into Lodi's approval of a reimbursement agreement. However, at this point
in time, our strong preference is to reach an accord on the current reimbursement
dispute instead of reaching a conclusion about your client's highly improper SLAPP
threat.
I look forward to working with you in a collaborative manner to resolve the instance
dispute.
Very truly your
STEVEN A. HERUM
Attorney -at -Law
SAH:lac
cc: Client
5757 PACIFIC AVENUE SUITE 222 STOCKTON, CA 95207 PH 209.472.7700 MODESTO PH 209.525.84442�EEX209447o2.APC
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Meyers Nave
555 12th Street Suite 1500
Oakland, California 94607
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1. The time to consider the reimbursement agreement lapsed.
17.62.050-- Reimbursement agreement.
"A. Within sixty days of receipt of a completed application, the public works director
shall prepare a reimbursement agreement containing the following provisions:...
5. Prior to approval of the reimbursement agreement, the council shall conduct a
public hearing. The hearing shall be conducted within ninety days of receipt of the
completed application. The applicant and property owner of each parcel identified in
the reimbursement agreement shall be notified of the hearing by registered mail at
least ten calendar days prior to the hearing."
1.04.010.G.—Definitions
"'Must' and 'shall' are each mandatory."
(Contrast with 1.04.010.E: "'May' is permissive.")
2. Government Code Section 66419(b):
b) "Improvement" also refers to any other specific improvements or types of
improvements, the installation of which, either by the subdivider, by public agencies, by
private utilities, by any other entity approved by the local agency, or by a combination
thereof, is necessary to ensure consistency with, or implementation of, the
general plan or any applicable specific plan.
(Bolding and underlining added.)
3. Court interpretation:
"Improvement' refers to 'any street work and utilities to be installed . . . by the
subdivider on the land to be used for public or private streets, highways, ways, and
easements, as are necessary for the general use of the lot owners in the subdivision
and local neighborhood traffic and drainage needs as a condition precedent to the
approval and acceptance of the final map thereof.' (§ 66419, subd. (a).)
Improvement 'also refers to any other specific improvements or types of
improvements, the installation of which, either by the subdivider, by public
agencies, by private utilities, by any other entity approved by the local
agency, or by a combination thereof, is necessary to ensure plan
consistency."'
Gardner v. County of Sonoma (2003) 29 Cal. 4th 990, 997 (bolding and underlining
added).
4/17/2019 Lodi, CA Code of Ordinances
q \6 10y.s
G -3
1. Maintenance Requirements. Provisions satisfactory to the public works director and city attc
for lot owners association or other organization to assume responsibility for the maintenanc
and ownership of the street right-of-ways of any subdivision.
2. Security and Conditions. The commission and/or council may require any guarantees and
conditions it deems necessary to carry out the provisions of this article pertaining to
private streets. Private streets and easements providing access to parcels within a
subdivision shall be located and shown on the parcel or final map.
G. Alternative Circulation Systems. Proposed subdivisions shall be designed to provide rights-of-
way for pedestrian paths, bikeways and multiple use trails consistent with the circulation
element of the general plan, and/or other applicable general plan provisions.
(Ord. No. 1869, § 2, 2-20-2013; Ord. No. 1883, § 1, 9-4-2013)
Chapter 17.62 - REIMBURSEMENTS FOR CONSTRUCTION
17.62.010 - Findings and purpose.
The council hereby finds and declares as follows:
A. The construction of new streets and water, sewer, and storm drains often benefits other
properties. Benefits may occur through the provision of supplemental capacity (oversize lines)
or installations across or opposite unserved property that would be required to make such
improvements upon development or service connection.
B. The state of California, in Government Code Sections 66485 through 66489, requires that the
city either pay for or enter into an agreement to reimburse the installing party, including an
amount attributable to interest for such installations. To pay the costs as required by the
reimbursement agreement, the city may collect funds from the other properties which benefit
from such installations.
C. The city has adopted a development impact mitigation fee ordinance (Municipal Code Chapter
15.64), which provides for reimbursement and collection of funds from benefitting parcels
under only a portion of the circumstances described in subsection A.
D. The purpose of Chapter 15.64 is to identify the improvements which are reimbursable under
the development impact mitigation fee program and to provide a uniform reimbursement
procedure for the cost of improvements which are to be reimbursed from other properties.
For purposes of this article, "applicant" means the owner of the property for which the
improvements are being installed or are required to be installed per the municipal code.
(Ord. No. 1883, § 2, 9-4-2013)
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4/17/2019 Lodi, CA Code of Ordinances
Editor's note— Ord. No. 1883, § 2, adopted September 4, 2013, repealed the former § 17.62.010, and enacted a
new § 17.62.010 as set out herein. The former § 17.62.010 pertained to similar subject matter and derived from
Ord. No. 1869, adopted February 20, 2013.
17.62.020 - Improvements to be reimbursed.
A. The cost of the following improvements shall be reimbursed from the appropriate benefitting
parcels. The terms of the reimbursement shall comply with Chapter 15.64.
1. Oversize water mains and major crossings required per Chapter 13.08:
2. Oversize sewers and storm drains required per Chapter 13.12;
3. Excess width street construction and right-of-way required per Chapter 15.44 and 17.50.030;
B. The cost of other improvements which benefit other property or would be required of that property
• is article.
.111/1 . • - 4111.1
(Ord. No. 1883, § 2, 9-4-2013)
1-
• 1111 -! 1 e 11 e s
l 1 1
Editor's note— Ord. No. 1883, § 2, adopted September 4, 2013, repealed the former § 17.62.020, and enacted a
new § 17.62.020 as set out herein. The former § 17.62.020 pertained to similar subject matter and derived from
Ord. No. 1869, adopted February 20, 2013.
17.62.030 - City eligibility.
Whenever the city constructs improvements meeting the requirements of this article, the city shall be eligible
for reimbursement in a like manner as other applicants.
(Ord. No. 1869, § 2, 2-20-2013)
17.62.040 - Application for reimbursement.
A. Whenever an applicant constructs improvements eligible for reimbursement under this article, the
applicant shall file a request with the public works director. The request shall include:
1. A description of the improvements and the additional properties receiving the benefit,
including drawings showing the items for reimbursements;
2. Engineering calculations and data as described in the city's public improvement design
standards;
3. An itemized record of cost for the improvements; and
4. Application fees as determined by the city's fee resolution.
B. All applications for reimbursement shall be filed no later than one year after the acceptance of the
improvements by the city. The city will make no effort to delay project approval or otherwise
condition payment of reimbursements from other properties benefitting from the improvements
prior to completion of a reimbursement agreement.
(Ord. No. 1869, § 2, 2-20-2013)
4/6
4/17/2019 Lodi, CA Code of Ordinances
improved in compliance with subsection C, or to a private street if allowed by subsection
F.
2. Frontage Roads. When Tots are proposed to front on a major arterial or state highway, the
review authority may require the subdivider to dedicate and improve a service or
frontage road separate from the arterial or highway.
3. Waiver of Direct Street Access. Whenever the review authority finds a safety hazard would
be created as the result of direct access, the review authority may impose a requirement
that any dedication or offer of dedication of a street shall include a waiver of direct access
rights to the street from any property shown on a final map as abutting the street, and
that if the dedication is accepted, the waiver shall become effective in compliance with
the provisions of the waiver of direct access. The review authority may also require
waivers of access to an existing, already dedicated street that abuts the subdivision.
E. Design and Improvement of Proposed Streets. New streets proposed or required within a new
subdivision or adjacent to a new subdivision shall be located and designed in compliance with
adopted city policies, and in compliance with the city's public improvement design standards
and construction specifications.
1. Access to Unsubdivided Property. When a proposed subdivision abuts vacant land that is
designated by the general plan for future subdivision and development, the review
authority may require that streets to be constructed with the proposed subdivision be
extended to the boundary of the property to provide access to the future development.
2. Improvements to Existing Streets.
a. The subdivider shall dedicate and improve all streets, including curbs, gutters,
sidewalks and street pavement in accordance with adopted city policies.
b. If street improvements exist that do not meet existing city standards or are
inadequate or a hazard to the general public, then these improvements shall be
reconstructed to current city standards.
3. Reimbursement for Excess Street Width. The subdivider or developer may be reimbursed
for excess width street construction and right-of-way or for construction or permanent
improvements which front adjacent property. Reimbursement shall be made by private
reimbursement agreement in accordance with Chapter 17.6Z. For purposes of this
section excess width streets are defined as:
a. New streets over sixty-eight feet in width;
b. Widenings of existing street in excess of one-half of the adjacent side of the right-of-
way.
F. Private Streets. Private roads are allowed as provided in this section. Private streets shall not
be permitted except where the commission determines that a private street system will
adequately serve the proposed subdivision, will not be a substantial detriment to adjoining
properties and will not disrupt or prevent the establishment of an orderly circulation system in
the vicinity of the subdivision.
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4/17/2019 Lodi, CA Code of Ordinances
current city standards.
E. No occupancy permit shall be issued or utility connections made unless the required off-site
improvements and dedications have been completed and approved.
F. Street improvements and dedications made pursuant to this chapter are eligible for
reimbursement as provided in Chapter 16.24 of this code.
(Ord. 1527 § 9, 1991; prior code § 5-23)
15.44.060 - Right-of-way and easement dedications.
The public right-of-way and easement dedications required under this chapter shall be in conformance
with the then -current city design standards and adopted specific plans. The required dedications shall be
made prior to the issuance of a building permit or allowing the development to proceed.
(Prior code § 5-24)
15.44.070 - Completion or guarantee.
Any person required to construct off-site improvements under this chapter shall either complete same
to city specifications or shall guarantee such completion by furnishing to the city, prior to the issuance of a
building permit or allowing a development to proceed, a surety bond, instrument of credit, or cash in the
amount of the development's construction cost.
(Prior code § 5-25)
15.44.080 - Inspection and approval.
Off-site improvements required under this chapter are subject to the inspection and approval of the
public works director.
(Prior code § 5-26)
15.44.090 - Fees.
The then -current applicable development fees must be paid prior to the issuance of a building permit,
or allowing the development to proceed, including:
A. Development impact mitigation fees;
B. Wastewater connection fee;
C. Engineering fee;
D. Other established development fees and fees for service.
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4/17/2019 Lodi. CA Code of Ordinances
E. The specific improvements to be financed by the fee are described in the city of Lodi
impact mitigation fee program prepared for the city by Harris and Associates, dated
August, 2012, a copy of which is on file with the city clerk. The calculation of the fee is
based upon the findings in the referenced study.
F. New development will generate new demand for facilities which must be
accommodated by construction of new or expanded facilities. The amount of demand
generated and, therefore, the benefit gained, varies according to kind of use. Therefore,
a "dwelling unit equivalent" (DUE) factor that quantifies the facilities demand of
different land use types in terms of their equivalence to a low density residential unit. A
low density residential unit is assigned a DUE factor of 1.0 and the DUE factor for each
of the other land use categories is determined based on the anticipated demand for
each land use category relative to the anticipated demand for a low density residential
unit.
G. The city has previously approved various development projects which have made
significant financial expenditures towards completion, including the payment of the
then current development impact mitigation fees; but have not obtained a building
permit. The city council finds and declares that such projects should be allowed to
proceed without the imposition of new development impact mitigation fees imposed
under this chapter.
(Ord. No. 1870, § 6, 2-20-2013)
15.64.020 - Definitions.
A. "Acreage" means the gross acreage for fee calculation purposes of any property within the
city general plan area not including the acreage of dedicated street right-of-way existing prior
to development, except that the area of new dedicated street right-of-way in excess of thirty-
four feet on one side of a street shall not be included in gross acreage.
B. "Building permit" means the permit issued or required for the construction, improvement or
remodeling of any structure pursuant to and as defined by the city building code.
C. "Costs" means amounts spent, or authorized to be spent, in connection with the planning,
financing, acquisition and development of a facility including, without limitation, the costs of
land, construction, engineering, administration, and consulting fees.
D. "Development" or "project" means any of the following:
1. For water, sewer, storm drainage and electric impact fees: Any new connection to the
city system or increase in service demand;
2. For streets impact fees: Any project that increases traffic;
3. For police, fire, parks and recreation, art in public places and general city facilities
2/13
DECLARATION OF POSTING
NOTICE OF CONTINUED PUBLIC HEARING TO CONSIDER RESOLUTION
AUTHORIZING CITY MANAGER TO EXECUTE REIMBURSEMENT
AGREEMENT RA -18-01 FOR PUBLIC IMPROVEMENTS CONSTRUCTED
WITH LODI SHOPPING CENTER
On Thursday, March 14, 2019, in the City of Lodi, San Joaquin County, California, a
Notice of Continued Public Hearing to consider resolution authorizing City Manager to
execute Reimbursement Agreement RA -18-01 for public improvements constructed with
Lodi Shopping Center (attached and marked as Exhibit A) was posted at the following
locations:
Lodi City Clerk's Office
Lodi City Hall Lobby
Lodi Carnegie Forum
Worknet Office
I declare under penalty of perjury that the foregoing is true and correct.
Executed on March 14, 2019, at Lodi, California.
.-z7,--„,_,‘„,L-722.L,Ayze):0
ORDERED BY:
JENNIFER M. FERRAIOLO
CITY CLERK
PAMELA M. FARRIS SYLVIA DOMINGUEZ
DEPUTY CITY CLERK ADMINISTRATIVE CLERK
N:\Administration\CLERK\Public Hearings\AFFADAVITS\DECPOSTPW2.doc
CITY OF LODI
Carnegie Forum
305 West Pine Street, Lodi
NOTICE OF CONTINUED PUBLIC HEARING
Date: April 17, 2019
Time: 7:00 p.m.
For information regarding this notice please contact:
Jennifer M. Ferraiolo
City Clerk
Telephone: (209) 333-6702
J E�!�881i A�
NOTICE OF PUBLIC HEARING
NOTICE IS HEREBY GIVEN that on Wednesday, April 17, 2019, at the hour of
7:00 p.m., or as soon thereafter as the matter may be heard, the City Council will
conduct a continued public hearing at the Carnegie Forum, 305 West Pine Street, Lodi,
to consider the following matter:
a) Resolution authorizing City Manager to execute Reimbursement
Agreement RA -18-01 for public improvements constructed with
Lodi Shopping Center.
Information regarding this item may be obtained in the Public Works Department,
221 West Pine Street, Lodi, (209) 333-6706. All interested persons are invited to
present their views and comments on this matter. Written statements may be filed with
the City Clerk, City Hall, 221 West Pine Street, 2nd Floor, Lodi, 95240, at any time prior
to the hearing scheduled herein, and oral statements may be made at said hearing.
If you challenge the subject matter in court, you may be limited to raising only those
issues you or someone else raised at the public hearing described in this notice or in
written correspondence delivered to the City Clerk, 221 West Pine Street, at or prior to
the close of the public hearing.
By Order of the Lodi City Council:
YY\ ?-LAIL2
nifer raiolo
Cify Clerk
Dated: March 12, 2019
Approved as to form:
Janice D. Magdich
City Attorney
AVISO: Para obtener ayuda interpretativa con esta noticia, por favor Ilame a la oficina de la
Secretaria Municipal, a las (209) 333-6702.
N:Wdministration\CLERK\Public Hearings \NOTICES1NoLPW ReimbAgmt.doc
317119
DECLARATION OF POSTING
NOTICE OF CONTINUED PUBLIC HEARING TO CONSIDER RESOLUTION
AUTHORIZING CITY MANAGER TO EXECUTE REIMBURSEMENT
AGREEMENT RA -18-01 FOR PUBLIC IMPROVEMENTS CONSTRUCTED
WITH LODI SHOPPING CENTER
On Tuesday, February 12, 2019, in the City of Lodi, San Joaquin County, California, a
Notice of Continued Public Hearing to consider resolution authorizing City Manager to
execute Reimbursement Agreement RA -18-01 for public improvements constructed with
Lodi Shopping Center (attached and marked as Exhibit A) was posted at the following
locations:
Lodi City Clerk's Office
Lodi City Hall Lobby
Lodi Carnegie Forum
Worknet Office
I declare under penalty of perjury that the foregoing is true and correct.
Executed on February 12, 2019, at Lodi, California.
ORDERED BY:
JENNIFER M. FERRAIOLO
CITY CLERK
PAMELA M. FARRIS SYLVIA DOMINGUEZ
DEPUTY CITY CLERK ADMINISTRATIVE CLERK
N;\Administration\CLERK\Public Hearings \AFFADAVITS\DECPOSTPW2.doc
CITY OF LODI
Carnegie Forum
305 West Pine Street, Lodi
NOTICE OF CONTINUED PUBLIC HEARING
Date: March 12, 2019
Time: 7:00 a.m.
For information regarding this notice please contact:
Jennifer M. Ferraiolo
City Clerk
Telephone: (209) 333-6702
•.
EXTfl BIT Fl
NOTICE OF PUBLIC HEARING
NOTICE IS HEREBY GIVEN that on Tuesday, March 12, 2019, at the hour of
7:00 a.m., or .as soon thereafter as the matter may be heard, the City Council will
conduct a continued public hearing at the Carnegie Forum, 305 West Pine Street, Lodi,
to consider the following matter:
a) Resolution authorizing City Manager to execute Reimbursement
Agreement RA -18-01 for public improvements constructed with
Lodi Shopping Center.
Information regarding this item may be obtained in the Public Works Department,
221 West Pine Street, Lodi, (209) 333-6706. All interested persons are invited to
present their views and comments on this matter. Written statements may be filed with
the City Clerk, City Hall, 221 West Pine Street, 2nd Floor, Lodi, 95240, at any time prior
to the hearing scheduled herein, and oral statements may be made at said hearing.
If you challenge the subject matter in court, you may be limited to raising only those
Issues you or someone else raised at the public hearing described in this notice or in
written correspondence delivered to the City Clerk, 221 West Pine Street, at or prior to
the close of the public hearing.
By Order of the Lodi City Council:
lnifer M G erraiolo
ity Clerk
Dated: February 6, 2019
Approvecl as to form:
nice Q,./ agdich
City -Attorney
AVISO: Para obtener ayuda interpretativa con esta noticia, por favor Ilame a la oficina de la
Secretaria Municipal, a las (209) 333-6702.
N:WdmInlelrallon%CLERK\Public HearingslNOTICES1NolPW_RelmbAgml.doc
7/19/1g
SUBJECT:
Please immediately confirm receipt
of this fax by calling 333-6702
CITY OF LODI
P. O. BOX 3006
LODI, CALIFORNIA 95241-1910
ADVCRTISING INSTRUCTIONS
NOTICE OF PUBLIC HEARING TO CONSIDER RESOLUTION
AUTHORIZING CITY MANAGER TO EXECUTE REIMBURSEMENT
AGREEMENT RA -18-01 FOR PUBLIC IMPROVEMENTS CONSTRUCTED
WITH LODI SHOPPING CENTER
PUBLISH DATE: SATURDAY, JANUARY 19, 2019
LEGAL AD
TEAR SHEETS WANTED: One (1) please
SEND AFFIDAVIT AND BILL TO:
LNS ACCT. #0510052
JENNIFER M. FERRAIOLO, CITY CLERK
City of Lodl
P.O. Box 3006
Lodi, CA 95241-1910
DATED: THURSDAY, JANUARY 17, 2019
ORDERED BY: JENNIFER M. FERRAIOLO
CITY CLERK
PAMELA M. FARRIS
DEPUTY CITY CLERK
/L]
SYLVIA DOMINGUEZ
ADMINISTRATIVE CLERK
Verify Appearance of this Legal in the Newspaper — Copy to File
Emailed to the:Sentinel atclassified1@lodlnews.com at {i+ .) on ate (pages)
LNS ; Phonec to confirm receipt of all pages at (time) _EB PM • (initials)
forms'.advins.doo
DECLARATION OF MAILING
PUBLIC HEARING TO CONSIDER RESOLUTION AUTHORIZING
CITY MANAGER TO EXECUTE REIMBURSEMENT AGREEMENT RA -18-01
WITH BROWMAN DEVELOPMENT COMPANY AND ELLIOT HOMES FOR
PUBLIC IMPROVEMENTS CONSTRUCTED WITH LODI SHOPPING CENTER
On Thursday, January 17, 2019, in the City of Lodi, San Joaquin County, California, I deposited
in the United States mail, envelopes with first-class postage prepaid thereon, containing a
Notice of Public Hearing to consider resolution authorizing City Manager to execute
Reimbursement Agreement RA -18-01 with Browman Development Company and Elliot Homes
for public improvemen:s constructed with Lodi Shopping Center, attached hereto marked
Exhibit A. The mailing list for said matter is attached hereto marked Exhibit B.
There is a regular daily communication by mail between the City of Lodi, California, and the
places to which said envelopes were addressed.
I declare under penalty of perjury that the foregoing Is true and correct.
Executed on January 17, 2019, at Lodi, California,
r
ORDERED BY:
JENNIFER M. FERRAIOLO
CITY CLERK, CITY OF LODI
PAMELA M. FARRIS ELIZABETH BURGOS
DEPUTY CITY CLERK ADMINISTRATIVE CLERK
Forms/decmail.doc
DECLARATION OF POSTING
NOTICE OF PUBLIC HEARING TO CONSIDER RESOLUTION AUTHORIZING
CITY MANAGER TO EXECUTE REIMBURSEMENT AGREEMENT RA -18-01
FOR PUBLIC IMPROVEMENTS CONSTRUCTED WITH
LODI SHOPPING CENTER
On Thursday, January 17, 2019, in the City of Lodi, San Joaquin County, California, a
Notice of Public Hearing to consider resolution authorizing City Manager to execute
Reimbursement Agreement RA -18-01 for public improvements constructed with
Lodi Shopping Center (attached and marked as Exhibit A) was posted at the following
locations:
Lodi City Clerk's Office
Lodi City Hall Looby
Lodi Carnegie Forum
Worknet Office
I declare under penalty of perjury that the foregoing is true and correct.
Executed on January 17, 2019, at Lodi, California.
ORDERED BY:
JENNIFER M. FERRAIOLO
CITY CLERK
PAMELA M. FARRIS SYLVIA DOMINGUEZ
DEPUTY CITY CLERK ADMINISTRATIVE CLERK
N:\Administration\CLERK\Public H arings\AFFADAVITS\DECPOSTPW2.doc
CITY OF LODI
Carnegie Forum
305 West Pine Street, Lodi
NOTICE OF PUBLIC HEARING
Date: February 6, 2019
Time: 7:00 p.m.
For information regarding this notice please contact:
Jennifer M. Ferraiolo
City Clerk
Telephone: (209) 333-6702
1
EX -1161T Al
NOTICE OF PUBLIC HEARING
NOTICE IS HEREBY GIVEN that on Wednesday, February 6, 2019, at the hour of
7:00 p.m., or as soon thereafter as the matter may be heard, the City Council will
conduct a public hearing at the Carnegie Forum, 305 West Pine Street, Lodi, to consider
the following matter:
a) Resolution authorizing City Manager to execute Reimbursement
Agreement RA -18-01 for public improvements constructed with
Lodi Shopping Center.
Information regarding this Item may be obtained in the Public Works Department,
221 West Pine Street, Lodi, (209) 333-6706. All interested persons are invited to
present their views and comments on this matter. Written statements may be filed with
tie City Clerk, City Hall, 221 West Pine Street, 2nd Floor, Lodl, 95240, at any time prior
b the hearing scheduled herein, and oral statements may be made at said hearing.
If you challenge the sL.bJect matter in court, you may be limited to raising only those
Issues you or someone else raised at the public hearing described In this notice or in
written correspondence delivered to the City Clerk, 221 West Pine Street, at or prior to
tie close of the public hearing.
By Order of the Lodi City Council:
1111
nifer M, rraiolo t t
ity Clerk
Dated: January 16, 2019
moved as to form:
`Janlc agdich
City Attorney
AVISO: Para obtener ayuda Interpretative con esta noticla, por favor (lame a Ia oficina de Ia
Secretaria Municipal, a las (209) 333-6702,
NV1dminloIrallon1CLERK\PubllaHearinaellvoTICEMnIPW a..In,hAnmI.r,.,.
EXHIBIT E-31
Name
Adciress
Lodi LSR Properties, LLC
10100 Trinity Parkway, Suite 420
Stockton, CA 95219
P.O. Box 520
Woodbridge, CA 95258
Jacobs Zunino
Sunset Tartesso, LLC
340 Palladio Parkway, Suite 521
Folsom, CA 95630
2057 Lowsac, LLC
19934 Meadow Oak Drive
Woodbridge, CA 95258
1303 Rivergate Drive
Lodi, CA 95240
788 West Armstrong Road
Lodi, CA 95242
P,O, Box 548
Woodbridge, CA 95258
395 East Harney Lane
Lodi, CA 95242
Weldon D Schumacher
_
Joey Tamura
Robert Van Ruiten
Earl Rieger
Larry D. & D. R. Wells
427 East Harney Lane
Lodi, CA 95242
Norene Dietrich
463 East Harney Lane
Lodi, CA 95242
Phyllis Mastel
499 East Harney Lane
Lodi, CA 95240
Joe Alvarez
533 East Harney Lane
Lodi, CA 95242
Robert W. & Jennifer J. Pinnell
2627 West Harney Lane
Lodi, CA 95242
Stephen Mann
1018 Laurel Avenue
Lodi, CA 95242
10100 Trinity Parkway, Suite 420
Stockton, CA 95219
W.L. Investors, LP