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HomeMy WebLinkAboutAgenda Report - October 2, 2019 H-01AGENDA ITEM H-[ Crrv on Lou CouNcn CovrMUNrcATroN TM AGENDA TITLE:Consider Adopting a Resolution Authorizing City Manager to Execute a Reimbursement Agreement with Miner Joaquin Building Corporation, a California Corporation for Annexation Entitlement Processing and Environmental Review Services for the Proposed Westside ll Annexation Project South of Vine Street and North of Kettleman Lane MEETING DATE: October 2,2019 PREPARED BY: Community Development Director RECOMMENDED ACTION: Consider adopting a resolution authorizing City Manager to execute a Reimbursement Agreement with Miner Joaquin Building Corporation, a California Corporation, for annexation entitlement processing and environmental review services for the proposed Westside ll Annexation Project south of Vine Street and north of Kettleman Lane. BACKGROUND INFORMATION: The City of Lodi has received a land use application request from Miner Joaquin Building Corporation for annexation entitlement processing and environmental review services for the proposed Westside ll Annexation Project south of Vine Street and north of Kettleman Lane. The proposed project includes an annexation, municipal service review, General Plan Amendment pre-rezone and master development plan for the property. The proposed project site is located within Phase 1 for anticipated growth areas per General Plan Chapter 3 - Growth Management and lnfrastructure. This area is anticipated as one of the first new growth opportunities. Attachment 1 includes land use visioning documents prepared by the applicant. The property is not within the Lodi city limits. The City Council must provide direction on how to proceed with this application request. The Council ultimately has discretion on whether an annexation application is processed and whether the property is annexed to the City. The land use entitlement for this project will require the preparation of annexation application, Municipal Service Review, General Plan Amendment, Pre - Rezone master development plan and an environmental document consistent with the California Environmental Quality Act. This project is not exempt from environmental review. The project applicant is required to pay for complete processing of this application and cover all statf and consultant costs. As part of the proposed application, staff has prepared a Reimbursement Agreement with Miner Joaquin Building Corporation, the project applicant, for the cost of the project review, master plan development, annexation processing, document preparation and environmental review. This agreement ensures that all project costs are born by the applicant. APPROVED: Stephen Schwaba ugr,ity Manager Westside ll Reimbursement Agreement October 2,2019 Page2 oÍ 2 FISCAL IMPAGT: FUNDING AVAILABLE None. The Reimbursement Agreement ensures that funding is available to pay for the costs generated by the proposed project. CLÅ*V Andrew Keys Deputy City Manager/lnternal Services Director Community Development Director Steve Attachment 1 - Westside ll Visioning Documents Attachment 2 - Reimbursement Agreement MINER JOAQUIN BUILDING CORPORATION APPLICATION REIMBURSEMENT AGREEMENT This Westside II Annexation Application Reimbursement Agreement ("Agreement") is made the 2 day of October, 2019 by and among the City of Lodi, a municipal corporation, hereafter referred to as "CITY", Miner Joaquin Building Corporation, a California Corporation, hereafter referred to as "DEVELOPER", collectively “Parties”. RECITALS A. DEVELOPER wishes to seek the annexation of certain real property to the City of Lodi, for the purpose of future development. CITY intends to provide thorough, complete, and professional review of DEVELOPER's various land use applications. In order to provide such thorough, complete, and professional review, CITY intends to supplement its existing staff with qualified adjunct staff secured via a consultant services agreement. DEVELOPER agrees to reimburse CITY for all its expenses related to the thorough, complete, and professional review of DEVELOPER's various land use applications including but not limited to contracting with outside vendors as provided in this Agreement. B. The property proposed for annexation is shown on Exhibit "A" which is attached hereto and incorporated herein by this reference (the "Property"). C. State Annexation Laws and City policies and procedures require comprehensive area-wide master planning or all of the area proposed for annexation as currently proposed and as planned for the future. CITY seeks to obtain said comprehensive area-wide master planning by updating relevant annexation and infrastructure master plans (“Master Planning”), and through the preparation of detailed design and development guidelines, and a project specific development plan ("Development Plan"). D. Said Plans will require an Environmental Impact Report ("EIR") to determine the environmental impact, if any, of the proposed Master Planning and Development Plan. E. The Parties contemplate that they may enter into a later development agreement regarding the construction of the proposed development pursuant to the authorities set forth in Government Code Section 65864 et seq. However, the Parties acknowledge that this Agreement is not a development agreement, and does not commit them to enter into a development agreement at some later date or provide any land use entitlements. F. CITY's policies and procedures require that DEVELOPER bear the full cost of processing the annexation application, including any Master Planning preparation of the Development Plan, all environmental assessment work and documentation, all payment of CITY and the Local Agency Formation Commission ("LAFCO") application fees, all CITY staff time associated with the processing of the application, and all outside consultant services required for the processing of the application (collectively “Project”). Subsequent preparation of a development agreement and the costs associated therewith are not included in this Agreement. G. The Parties further acknowledge that the California Fair Political Practices Act requires that DEVELOPER have no direction or control over the response times, selection, supervision, activities, recommendations or decisions of any outside consulting services retained by the City. AGREEMENT NOW THEREFORE in consideration of the mutual covenants made herein, and other good and valuable consideration, the receipt and sufficiency of which the parties hereby acknowledge, the Parties hereto agree as follows: 1. Recitals True and Correct. The Parties agree that the Recitals contained hereinabove are true and correct. 2. Expense Reimbursement. CITY will engage outside consultants and in-house staff in its sole discretion to perform the legal, environmental and planning services necessary for the Project. DEVELOPER will reimburse CITY for all in-house and consultant costs associated with the Project. In-house costs will be billed based on a position’s Fully Burdened Hourly Rate (FBHR) calculated as the position’s hourly salary and benefit rate plus an indirect cost rate billed in ¼ hour increments. The Fiscal Year 2019/20 indirect cost rate for Public Works is 42.80% and the indirect cost for planning staff is 93.30%. Current billable rates including the indirect cost rate are included in Exhibit A of this agreement. FBHR are effective through current employee contracts or the current Fiscal Year 2019/20. CITY has unilateral authority to adjust base rates based on actual changes in employee contracts and indirect cost rates based for future budget years. 3. DEVELOPER'S Cooperation. DEVELOPER will cooperate with CITY in performing the legal, environmental, and planning work required of the CITY to advance the Project. 4. DEVELOPER'S Deposit. Upon execution of this Agreement, DEVELOPER shall deposit $75,000.00 cash (or other equivalent security in a form approved by the City Manager) with CITY. CITY will hold the deposit and charge invoices received and in-house expenses incurred against the deposit. Developer shall be provided with a monthly accounting of the costs to be expensed against Developer’s Deposit, including a description of the work performed by both the City’s in-house staff and any outside consultants, and the associated costs. In the event that the deposit is drawn down to a balance of less than $25,000.00, DEVELOPER shall deposit additional funds to maintain an evergreen balance of at least $75,000.00 ("Evergreen Deposit"). DEVELOPER shall deposit additional funds with CITY to ensure the Evergreen Deposit amount is maintained within 15 days of receiving notice from CITY. In the event that funds remain on deposit at the conclusion of the services contemplated by this Agreement; they shall be refunded to DEVELOPER. The deposit shall earn interest at the LAIF rate. Interest shall be credited back to the Evergreen Account and only refunded if a positive balance remains at the conclusion of the Project. 5. Termination of Agreement. a. DEVELOPER shall have the right to terminate this Agreement by delivering notice as set forth below. b. In the event of termination of this Agreement, CITY shall refund to DEVELOPER any unused funds in the Evergreen Deposit. c. Post Termination Work. Notwithstanding the provisions of Section 5(a), DEVELOPER may request that, after DEVELOPER has delivered notice of termination, CITY complete work in progress as identified by DEVELOPER. DEVELOPER shall reimburse CITY for the costs of completion of the identified work. 6. Payment of Costs Not Contingent on Project Approval/No Entitlements Granted. The payment of the fees and costs identified herein is not contingent upon the approval of the annexation of the Property. DEVELOPER understands that the proposed annexation requires the approval of LAFCO and the Lodi City Council. DEVELOPER fully accepts all risks associated with the approval process. Nothing in this Agreement shall provide DEVELOPER with any right to secure approval of any development plan or other entitlement. In addition, DEVELOPER agrees that it will have no rights to select the outside consultants retained by CITY; or direct the work, response times, recommendations or approvals of the outside consultants. 7. DEVELOPER'S Failure to Pay. Should DEVELOPER fail to make any of the payments in the amounts and at the times stated in the Section 4 of this Agreement, CITY may, at its option, stop all further work on the Project and not proceed until the sums due are paid. Should DEVELOPER abandon the Project, DEVELOPER shall be responsible for the payment to CITY of all fees and costs incurred by CITY at the time the Project is abandoned, including such fees and costs for all work in progress but not yet billed to CITY by its retained consultants. 8. No Damages for Delay. CITY, its elected and appointed officials, officers, agents, or employees shall not be responsible or liable to DEVELOPER for any damages of any type or description which may result from any delays associated with the processing of the Project whether caused by the negligence of CITY, its elected and appointed officials , officers, agents, employees, or otherwise. 9. Notices. All notices required by this Agreement shall be in writing, signed by the authorized representative of the sender and shall be deemed to have been given when the same is personally served or upon receipt by express or overnight delivery, postage prepaid, or three (3) days from the mailing if sent by first class or certified mail, postage prepaid, addressed as follows: TO CITY City of Lodi Stephen Schwabauer City Manger 221 West Pine Street Lodi, CA 95240 TO DEVELOPER Miner Joaquin Building Corporation, a California Corporation John Dentoni VP Chief Financial Officer PO Box 1110 Stockton, CA 95201 10. 11. California Law. This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim, or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of San Joaquin, State of California, or any other appropriate court in such county, and DEVELOPER covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 12. Waiver. No delay or omission in the exercise of the right or remedy by a non- defaulting party on any default shall impair such right or remedy or be construed as a waiver. Any waiver by either party or any default must be in writing and shall not be a waiver of any other default concerning the same and any other provision of this Agreement. 13. Attorney Fees. If either party to this Agreement is required to initiate or defend or is made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorneys' fees. Attorneys' fees shall include attorneys' fees on any appeal, and in addition a party entitled to attorneys' fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery, and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. 14. Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. 15. Integration; Amendment. It is understood that there are no oral agreements between the Parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements, and understandings, if any, between the Parties, and none shall be used to interpret this Agreement. This Agreement may be amended at any time by the mutual consent of the Parties by an instrument in writing and executed by the Parties. 16. Severability. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the Parties hereunder unless the invalid provision is so material that its validity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless. 17. Corporate Authority. The persons executing this Agreement on behalf of the Parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said party if bound. 18. Indemnification, Defense and Hold Harmless. a. DEVELOPER agrees to and shall indemnify, defend and hold CITY, its council members, appointed officials, officers, agents, employees and representatives (“Indemnites”) harmless from liability for damage or claims of damage, for personal injury, including death, and claims for property damage which may arise from CITY's hiring of outside consultants and the services for the Project provided thereby. b. DEVELOPER's obligation under this section to indemnify, defend and hold harmless CITY, its council members, appointed officials, officers, agents, employees, and representatives shall not extend to liability for damage or claims for damage arising out of the sole negligence or willful act of CITY, its council members, appointed officials, officers, agents, employees or representatives. In addition, DEVELOPER's obligation shall not extend to any award of punitive damages against CITY resulting from the conduct of CITY, its council members, appointed officials, officers, agents, employees or representatives. c. With respect to any action challenging the validity of this Agreement or any environmental, financial, or other documentation related to approval of this Agreement, DEVELOPER further agrees to defend, indemnify, hold harmless, pay all damages, costs and fees, if any incurred to either CITY or plaintiff(s) filing such an action should a court award plaintiff(s) damages, costs and fees, and to provide a defense for CITY in any such action. d. Failure of City to monitor compliance with the requirements of this Section 17 imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. This obligation in indemnify and defend City as set forth is binding on the successors, assigns or heirs of Developer and shall survive the termination of this Agreement or this Section 17. e. This Section 17 shall survive termination of this Agreement and is in addition to any other rights or remedies that the Indemnities may have under the law or under any other contract or agreements. In the event of any claim or demand made against any party which is entitled to be indemnified hereunder, City may, in its sole discretion, reserve, retain or apply any monies owing to the Developer under this Agreement, if any, for the purpose of resolving such claims; provided, however, City may release such funds if the Developer provides City with reasonable assurance of protection of the Indemnitees’ interests. City shall, in its sole discretion, determine whether such assurances are reasonable. SIGNATURES FOLLOW ON NEXT PAGE IN TWITNESS WHEREOF, the Parties have executed and entered into this Agreement as of the date first written above. ATTEST:CITY OF LODI, a municipal corporation By By: Jennifer M. Ferraiolo, City Clerk Stephen Schwabauer, City Manager APPROVED AS TO FORM: By gJanice D. Magdich, City Attorney DEVELOPER: Miner Joaquin Building Corporation, a California Corporation By: Name: John Dentoni Title: Vice President Chief Financial Officer Address: Westside II Proposed Annexation WESTSIDE II CC WESTSIDE II CC WESTSIDE II CC WESTSIDE II CC