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HomeMy WebLinkAboutAgenda Report - November 3, 2021 C-14C- 14 CITY OF LODI COUNCIL COMMUNICATION TM AGENDA TITLE: Consider Adopting a Resolution Authorizing City Manager to Execute a Reimbursement Agreement with Encore Capital Group, Inc., for Annexation Entitlement Processing and Review of Various Master Plans for Proposed Vineyard Valley Project at 1890 East Harney Lane MEETING DATE: PREPARED BY: November 3, 2021 Public Works Director RECOMMENDED ACTION: Consider Adopting a Resolution Authorizing City Manager to Execute a Reimbursement Agreement with Encore Capital Group, Inc., for Annexation Entitlement Processing and Review of Various Master Plans for Proposed Vineyard Valley Project at 1890 East Harney Lane BACKGROUND INFORMATION: The City of Lodi has been participating in preliminary discussions with Encore Capital Group, Inc. (Developer) regarding the Vineyard Valley Project (Project) located at 1890 East Harney Lane (Exhibit A). The discussions have centered on the annexation entitlement process and the requirements for providing services to the Project. The Project location is currently not in the City limits and at the time of writing this staff report, there has been no formal application submitted for annexation by the Developer. The annexation entitlement process can take up to two years to complete. The conceptual site plan for the Project includes approximately 760 units with a mixture of market rate, active adult and affordable product, along with a detention basin / park and recreation center, and linear park (Exhibit B). The entitlement process will require the Developer to master plan and obtain environmental approvals for various sewer, storm drain, water system and street network concepts that will identify how these services will be provided not only to the project, but also to the future growth area that extends south of Harney Lane between Hutchins Street and Lower Sacramento Road. The City's policies and procedures require the Developer bear the full cost of this work. The proposed reimbursement agreement (Agreement) provides the City with a means of recovering the staff costs associated with the Project entitlement process costs (Exhibit C). The estimated reimbursable fees total $160,000 and include projected costs to review the storm drainage master plan, sewer collection master plan, street circulation master plan and traffic study, offsite traffic and circulation improvements, transit master plan, bicycle master plan, water distribution master plan, recycled water master plan finance and implementation plan and planning oversight fees. The Agreement requires an initial, evergreen deposit of $25,000 and will draw on the deposited funds until the balance reaches $5,000. At that time, staff will request an additional deposit based on projected need. Staff will only charge for actual time spent on any line item and will provide back up to justify the expenses. APPROVED: Steve Schwabauer Stephen Schwabauer, City Manager \\cvcfilv02\pubwks$\WP\DEV_SERV\Developments\Residential\Vineyard Valley\11-3-2021 CC Vineyard Valley RA.docx Consider Adopting a Resolution Authorizing City Manager to Execute a Reimbursement Agreement with Encore Capital Group, Inc., for Annexation Entitlement Processing and Review of Various Master Plans for Proposed Vineyard Valley Project at 1890 East Harney Lane November 3, 2021 Page 2 of 2 FISCAL IMPACT: The Reimbursement Agreement is intended to ensure that funding is available to pay for staffing and ancillary costs generated by the Project. FUNDING AVAILABLE: If approved, the Agreement will ensure funding is available. ct-� Charles E. Swimley Jr. Public Works Director CES/CES/cd Attachment ® Subject Property EXHIBIT A Location Map N NNN N111 1 11111 11111111 'l l ilili 1 x' nl N1 u""' Feet 1 i 9vrm J10444 f iL :YiXRNEY LANE VINEYARD VALLEY REIMBURSEMENT AGREEMENT This Agreement is made on , 2021 by and between the City of Lodi, a municipal corporation, hereafter referred to as "CITY", and Encore Capital Group, Inc., hereafter referred to as "DEVELOPER". RECITALS A. DEVELOPER wishes to seek the services of the CITY to complete various Master Plans and related studies associated with the Vineyard Valley development project (PROJECT). B. The CITY's policies and procedures require that the DEVELOPER bear the full cost of processing applications, including preparation and review of Master Plans and Development Plans, engineering, payment of all CITY application fees, payment of all City staff time, contract services, purchased supplies and equipment necessary to perform the engineering, legal, environmental and planning services necessary for the Developer's PROJECT. C. The total estimated fees and costs for the below items is $160,000. Storm Drainage Master Plan $20,000 Sewer Collection Master Plan $10,000 Street Circulation Master Plan/Traffic Study $15,000 Offsite Traffic & Circulation Improvements $15,000 Transit Master Plan $15,000 Bicycle Master Plan $ 5,000 Water Distribution Master Plan $10,000 Recycled Water Master Plan $20,000 Finance and Implementation Plan $20,000 Planning Oversight Fees $30,000 NOW THEREFORE in consideration of the mutual covenants made herein, the parties 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 in-house staff and contract services in its sole discretion to perform the services necessary for the Project. Developer will reimburse City for all City staff time, contract services, purchased supplies, and equipment necessary to perform the engineering, legal, environmental, and planning services necessary for the PROJECT. The fees listed herein are estimates. Should the actual fees and costs exceed the estimates, DEVELOPER shall pay the difference. Likewise, should the actual costs be less than the estimated costs, DEVELOPER'S obligation shall be reduced accordingly. 3. DEVELOPER'S COOPERATION. DEVELOPER will cooperate with City in performing work required by CITY to advance the PROJECT. 4. DEVELOPER'S DEPOSIT AND PAYMENT OF COSTS. Upon execution of this Agreement, DEVELOPER shall deposit $25,000.00 cash with the City. CITY will hold the deposit and charge in-house expenses incurred against the deposit. In the event that the deposit is drawn down to a balance of less than $5,000.00, DEVELOPER shall deposit additional funds in such amount as directed by CITY (EVERGREEN DEPOSIT). DEVELOPER shall deposit the EVERGREEN DEPOSIT 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. 5. DEVELOPER'S FAILURE TO PAY. Should DEVELOPER fail to make any of the payments in the amounts and at the times stated in Section 4 above, 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 DEVELOPMENT, DEVELOPER shall be responsible for the payment to CITY of all fees and costs incurred by CITY at the time the DEVELOPMENT is abandoned, including such fees and costs for all work in progress on the PROJECT, but not yet billed. 6. NO DAMAGES FOR DELAY. CITY, its officers, agents, or employees, shall not be responsible or liable to the DEVELOPER for any damages of any type or description which may result from any delays associated with the PROJECT whether caused by the negligence of CITY, its officers, agents, employees, or otherwise. 7. NO RIGHTS FOR PROJECT APPROVAL. DEVELOPER acknowledges that this Agreement grants DEVELOPER no right or expectation for approval of the DEVELOPMENT and no right to control CITY'S in-house staff or contract staff or demand that the PROJECT or the DEVELOPMENT be processed on a particular time schedule. However, it is the goal of CITY to complete the PROJECT. 8. 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, and DEVELOPER covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 9. 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. 10. 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 and costs. Attorneys' fees shall include attorneys' fees and costs incurred in any appeal, and all other necessary costs the court allows which are incurred by the prevailing party. All such fees and costs shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. 11. 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. 12. 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, whether oral or written, 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 signed by the parties. 13. 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. 14. 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 is bound. 15. INDEMNIFICATION, DEFENSE AND HOLD HARMLESS. a. DEVELOPER agrees to and will indemnify, defend and hold CITY, its council members, officers, agents, employees and representatives harmless from liability for damage or claims of damage, for personal injury, including death, and claims for property damage which may arise from the PROJECT. b. DEVELOPER'S obligation under this Section 15 to indemnify, defend and hold harmless City, its council members, officers, agents, employees, and representatives shall not extend to liability for damage or claims arising out of the sole negligence or willful act of City, its council members, 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, 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, its council members, officers, agents, employees, or representatives, in any such action. [The balance of this page is intentionally left blank.] IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date first written above. ATTEST: THE CITY OF LODI, a municipal corporation Jennifer Cusmir, City Clerk Stephen Schwabauer, City Manager APPROVED AS TO FORM: WE Janice D. Magdich, City Attorney ENCORE CAPITAL GROUP, INC. By: Name: Title: Address: RESOLUTION NO. 2021-294 A RESOLUTION OF THE LODI CITY COUNCIL AUTHORIZING THE CITY MANAGER TO EXECUTE A REIMBURSEMENT AGREEMENT WITH ENCORE CAPITAL GROUP, INC., FOR ANNEXATION ENTITLEMENT PROCESSING AND REVIEW OF VARIOUS MASTER PLANS FOR THE PROPOSED VINEYARD VALLEY PROJECT AT 1890 EAST HARNEY LANE WHEREAS, the City of Lodi has been participating in preliminary discussions with Encore Capital Group, Inc., regarding the Vineyard Valley Project located at 1890 East Harney Lane, centered on the annexation entitlement process and the requirements for providing services to the Project; and WHEREAS, the project includes approximately 760 units with a mixture of market rate, active adult and affordable product, along with a detention basin / park and recreation center, and linear park location, currently not located in the City limits; and WHEREAS, the Reimbursement Agreement provides the City with a means of recovering the staff costs associated with the Project during the annexation entitlement process that can take up to two years to complete; and WHEREAS, staff recommends that the City Council authorize the City Manager to execute a Reimbursement Agreement with Encore Capital Group, Inc., for the annexation entitlement processing and review of various master plans for the proposed Vineyard Valley Project at 1890 East Harney Lane. NOW, THEREFORE, BE IT RESOLVED that the Lodi City Council does hereby authorize the City Manager to execute a Reimbursement Agreement with Encore Capital Group, Inc., for the annexation entitlement processing and review of various master plans for the proposed Vineyard Valley Project at 1890 East Harney Lane; and BE IT FURTHER RESOLVED, pursuant to Section 6.3q of the City Council Protocol Manual (Res. No. 2019-223), the City Attorney is hereby authorized to make minor revisions to the above -referenced document(s) that do not alter the compensation or term, and to make clerical corrections as necessary. Dated: November 3, 2021 I hereby certify that Resolution No. 2021-294 was passed and adopted by the City Council of the City of Lodi in a regular meeting held November 3, 2021, by the following vote: AYES: COUNCIL MEMBERS — Chandler, Hothi, Khan, Kuehne, and Mayor Nakanishi NOES: COUNCIL MEMBERS — None ABSENT: COUNCIL MEMBERS — None ABSTAIN: COUNCIL MEMBERS — None i JENNIFER USMIR City Clerk 2021-294 VINEYARD C N YARD VALLEY REIMBURSEMENT AGREEMENT (DRAFT) This Agreement is made on '2021 by and between the City of Lodi, a municipal corporation, hereafter referred to as "CITY", and Encore Housing Opportunity Fund III, LLC, a Delaware limited liability corporation, Gap4aal �, �,ze,, hereafter referred to as "DEVELOPER". RECITALS A. DEVELOPER wishes to seek the services of the CITY to complete various Master Plans and related studies associated with the Vineyard Valley development project (PROJECT). B. The CITY's policies and procedures require that the DEVELOPER bear the full cost of processing applications, including preparation and review of Master Plans and Development Plans, engineering, payment of all CITY application fees, payment of all City staff time, contract services, purchased supplies and equipment necessary to perform the engineering, legal, environmental and planning services necessary for the Developer's PROJECT. C. The total estimated fees and costs for the below items is $160,000. Storm Drainage Master Plan $20,000 Sewer Collection Master Plan $10,000 Street Circulation Master Plan/Traffic Study $15,000 Offsite Traffic & Circulation Improvements $15,000 Transit Master Plan $15,000 Bicycle Master Plan $ 5,000 Water Distribution Master Plan $10,000 Recycled Water Master Plan $20,000 Finance and Implementation Plan $20,000 Planning Oversight Fees $30,000 NOW THEREFORE in consideration of the mutual covenants made herein, the parties 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 in-house staff and contract services in its sole discretion to perform the services necessary for the Project. Developer will reimburse City for all City staff time, contract services, purchased supplies, and equipment necessary to perform the engineering, legal, environmental, and planning services necessary for the PROJECT. The fees listed herein are estimates. Should the actual fees and costs exceed the estimates, DEVELOPER shall pay the difference. Likewise, should the actual costs be less than the estimated costs, DEVELOPER'S obligation shall be reduced accordingly. CITY shall provide DEVELOPER with a rate schedule for in-house staff and contracted services. DEVELOPER'S COOPERATION. DEVELOPER will cooperate with City in performing work required by CITY to advance the PROJECT. 4. DEVELOPER'S DEPOSIT AND PAYMI.-1N''l` OF COSTS. Upon execution of this Agreement, DEVELOPER shall deposit $25,000.00 cash with the City. CITY will hold the deposit and charge in-house expenses incurred against the deposit. In the event that the deposit is drawn down to a balance of less than $5,000.00, DEVELOPER shall deposit additional funds in such amount as directed by CITY (EVERGREEN DEPOSIT). DEVELOPER shall deposit the EVERGREEN DEPOSIT 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. 5. DEVELOPER'S FAILURE TO PAY. Should DEVELOPER fail to make any of the payments in the amounts and at the times stated in Section 4 above, 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 DEVELOPMENT, DEVELOPER shall be responsible for the payment to CITY of all fees and costs incurred by CITY at the time the DEVELOPMENT is abandoned, including such fees and costs for all work in progress on the PROJECT, but not yet billed. 6. NO DAMAGES FOR DELAY. CITY, its officers, agents, or employees, shall not be responsible or liable to the DEVELOPER for any damages of any type or description which may result from any delays associated with the PROJECT whether caused by the negligence of CITY, its officers, agents, employees, or otherwise. 7. NO RIGHTS FOR PROJECT APPROVAL. DEVELOPER acknowledges that this Agreement grants DEVELOPER no right or expectation for approval of the DEVELOPMENT and no right to control CITY'S in-house staff or contract staff or demand that the PROJECT or the DEVELOPMENT be processed on a particular time schedule. However, it is the goal of CITY to complete the PROJECT. 8. 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, and DEVELOPER covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 9. 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. 10. 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 and costs. Attorneys' fees shall include attorneys' fees and costs incurred in any appeal, and all other necessary costs the court allows which are incurred by the prevailing party. All such fees and costs shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. 11. 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. 12. INTEGRATION. AMENDM [ NT. 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, whether oral or written, 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 signed by the parties. 13. 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. 14. 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 is bound. 15. INDEMNIFICA'T'ION, DEFENSE AND HOLD HARMLESS. a. DEVELOPER agrees to and will indemnify, defend and hold CITY, its council members, officers, agents, employees and representatives harmless from liability for damage or claims of damage, for personal injury, including death, and claims for property damage which may arise from the PROJECT. b. DEVELOPER'S obligation under this Section 15 to indemnify, defend and hold harmless City, its council members, officers, agents, employees, and representatives shall not extend to liability for damage or claims arising out of the sole negligence or willful act of City, its council members, 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, 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, its council members, officers, agents, employees, or representatives, in any such action. [The balance of this page is intentionally left blank.] IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date first written above. ATTEST: Jennifer Cusmir, City Clerk APPROVED AS TO FORM: Janice D. Magdich, City Attorney jdm Signature: �,�IIGG���� Janke O. Magdlch (Nov 1, 1 17:07 PDT) Email: jmagdich@lodi.gov THE CITY OF LODI, a municipal corporation RIN Stephen Schwabauer, City Manager ENCORE HOUSING OPPORTUNITY FUND III, LLC, a Delaware limited liability corporation. By: Name: Title: Address: Jennifer Cusmir From: G Funamura <gumph09@comcast.net> Sent: Tuesday, November 2, 2021 4:23 PM To: City Council Comments Subject: November 3, 2021 Meeting, Agenda Items C-13 & C-14 Honorable Councilmembers: I am a homeowner in the Legacy Estates subdivision, which borders on Harney Lane, west of Mills Avenue. The rear of my home borders Harney Lane. I recognize that these Agenda Items relate only to reimbursement agreements between the developer and the city, however I would like to express my concerns as they relate to the scope of the potential agreements. My interest in these Agenda Items centers on the issue of potential traffic and sound impacts of the proposed development on existing homeowners in the vicinity of Harney Lane. At present, Harney Lane is a heavily -used artery between Reynolds Ranch/Highway 99 and Lower Sacramento Road. The road is used by commuters as well as many tractor -trailers. Speed limits seem to be rarely enforced and the traffic noise is often so loud that normal conversations are sometimes difficult in my backyard. Due to heavy traffic, it is not uncommon to have to wait 2-3 minutes to turn from Legacy Way onto Harney Lane. The proposed 762 housing unit proposal will not only increase the traffic load on Harney Lane, but will certainly exacerbate the traffic noise in our neighborhood. Because of these issues, I suggest that the estimated cost of $15,000 for city staff to examine the Offsite Traffic and Circulation Improvements is inadequate for the seriousness of this issue. Thank you for your consideration of these comments. Sincerely, Gary Funamura 2304 Olson Drive Lodi, CA 95242