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HomeMy WebLinkAboutResolution - 2513 STATE OF CALIFORNIA ) RESOLUTION NO. 2513 COUNTY OF RIVERSIDE)ss CITY OF SAN JACINTO ) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JACINTO, CALIFORNIA, AUTHORIZING THE ESTABLISHMENT OF A DEPOSIT PROGRAM FOR EXPEDITED REVIEW OF DEVELOPMENT PROJECTS WHEREAS, the City of San Jacinto ("City") is authorized by California Constitution, Article IX, Section 7 to make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws; and WHEREAS, a tremendous increase in the number of development approval applications has recently affected the ability of the City to process such applications within timeframes that the City Council deems appropriate; and WHEREAS, the City Council of the City of San Jacinto wishes to establish a development project deposit policy in order to alleviate the hardship on applicants and City staff caused by the recent increased development approval applications; and WHEREAS, all other legal prerequisites to the adoption of this Resolution have occurred. NOW, THEREFORE, BE IT RESOLVED determined and ordered by the City Council of the City of San Jacinto: SECTION 1. Incorporation of Recitals. The City Council hereby finds and determines that the Recitals of this Resolution are true and correct and are hereby incorporated into this Resolution as though fully set forth herein. SECTION 2. Deposit. Upon request by any applicant for a "development project", as that term is defined in Government Code section 65928, or in the event the City Manager or designee determines that any additional consultant(s) would be necessary in order to meet the time requirements set forth in the Permit Streamlining Act, such applicant shall provide to the City a deposit in cash, cashier's check or money order to be used by the City to retain the services of such planning, environmental, engineering, legal or other consulting services as may be deemed appropriate by the City Manager, or designee. The amount of the deposit shall be determined by the City Manager, or designee based upon factors including, but not `.. limited to, the number and/or complexity of the approval(s) required -kVPUBJSR 007040 I and the size andlor complexity of the project. The City Manager or designee is authorized to enter into deposit agreements with development project applicants in substantially the form set forth in Exhibit "A", attached hereto and incorporated by reference herein, including any amendments acceptable to the City Attorney. The Deposit shall be used solely for the purpose of paying the actual costs of retaining those consultant(s) requested or deemed necessary by the City Manager, or designee. The deposit may be required to be replenished if such deposit is reduced to a level that, in the sole discretion of the City Manager or designee, will be insufficient to provide the requested or necessary consultant payments. Upon the completion of the portion of the development project for which the applicable consultant(s) has been retained, any remaining funds shall be returned to the applicant. SECTION 3. Not a Development Impact Fee, Special Assessment or Tax. The City Council hereby finds and determines that the costs to be paid by development project applicants pursuant to this policy do not exceed the estimated reasonable cost of providing the service for which the fee is charged since the funds on deposit are used to pay the actual costs of retaining those consultant(s) requested or deemed necessary by the City Manager, or designee. The deposit authorized by this policy shall not be deemed a "development fee', as defined in Government Code sections 66000 or 66010, nor a "special assessment" or "tax", but instead constitutes a processing charge pursuant to Government Code section 66014. The deposit provided for in this policy shall be in addition to any other processing charges, as well as any development fees, taxes or assessments that may otherwise be imposed pursuant to applicable law. SECTION 4. Contractor of City of San Jacinto. Under no circumstances shall the consultant(s) retained pursuant to this policy be deemed an employee, contractor, consultant or agent of the applicant requesting the development approval. Instead, the City Manager, or designee shall have the authority to choose the consultant(s), in his or her sole discretion. Such consultant(s) shall be the independent contractor solely of the City of San Jacinto while retained pursuant to this policy. SECTIONS. Effective Date, This Resolution shall become effective upon its adoption. -RVPl.SJS3 56 iO.10. APPROVED and ADOPTED, this 19th day of February, 2004, by the following vote Ayes: Carlson-Buydos, Conner, Shaw, Stubblefield Nays: None Absent: None Abstain: None City of San Jacinto im Ayr s ayor ATTEST: V rYVL�� D rothy L. C uinard, City Clerk APPROVED A RM: BEST, EST K IEG R -LP �n0Lr City Attorney -R V M I H JSB%667oau.1 EXHIBIT "A" [MODEL] DEPOSIT AGREEMENT Between THE CITY OF SAN JACINTO, a California municipal corporation and COMPANY a corporation [DISCUSSION DRAFT NO._ DATED , 200_1 r.. -Rvl'11B,JSiE6h7u40 i DEPOSIT AGREEMENT This Deposit Agreement ("Agreement") is made this day of 200 by and between the City of San Jacinto, a California municipal corporation (the "City"). and Company, a ( the "Applicant"). RECITALS This Agreement is made with respect to the following facts: A. The Applicant is the owner of that certain real property (`Property") located within the City of San Jacinto. County of Riverside. California. The Property is more particularly described in the legal description attached hereto as Exhibit"A". B. The Applicant is contemplating the development of the Property as a residential community to be known as The Applicant has submitted an application for various discretionary land use approvals for the development of the Property including, without limitation, approval of [a specific plan, environmental documents pursuant to the California I�Mvironmental Quality Act ("C'EQA") and the amendment of the City's General Plan and Zoning Code]. [The Applicant may also request the City to provide public financing to assist the Applicant in developing the infrastructure for the Property, including, but not limited to, the creation of Community Facilities Districts, Lighting and Landscape Districts or other financing mechanisms. Moreover, the Applicant intends to process and negotiate a development agreement with the City and process an annexation of that portion of the Property which is in the City's sphere of influence]. All of the above shall be referred to collcctivcly as tlic "Project." C. To provide the City with the environmental, planning, fiscal and extraordinary legal advice and information necessary to the City's review process concerning the development of the Property, and the possible provision of public financing, it is necessary for the City to retain the services of an environmental consultant, a project land use planner, a fiscal consultant, and legal counsel (collectively, "Consultants"). For purposes of this Agreement, extraordinary legal service shall mean any and all legal service provided to the City which service is directly related to the Applicant's pursuit of the development of the Property and which service would not have been requested by the City, if the Applicant's Project was not being processed by the City. Extraordinary legal service shall not include any legal service provided to the City in connection with the preparation or updating of City regulations, ordinances, plans or guidelines which are necessary for the review of'the Project and which are under State law required to be updated from time to time. D. As a condition to the City's completion of the review process, the Applicant has agreed to pay the City for the Consultants costs and expenses related to the City's review process in the manner and amounts set forth in this Agreement. The Applicant's payment to City under this Agreement will ensure that the City has the necessary resources to diligently and efficiently process the Applicant's Project. 'w -1- AGREEMFNT NOW. THEREFORE, in consideration of the following mutual promises a:ld agreements, City and Applicant agree as follows: 1. incorporation of Recitals. "The parties agree that the Recitals constitute the factual basis upon which the City and the Applicant have entered into this Agreement, 'The City and the Applicant cacti acknowledge the accuracy of' the Recitals and agree that the Recitals are incorporated into this Agreement as though fully set forth at length. 2. City to Retain Consultants. As a necessary and indispensable part of its fact funding process relating to the review of the Applicant's proposed uses of the Property, and the City's possible assistant to the Applicant with public financing, the City shall retain, by means of contracts ("Consultant Contracts") subject to the City's approval in its reasonable and sole discretion, the services of the Consultants set forth in Section of this Agreement to provide such environmental, fiscal, planning, public information and extraordinary legal advice as the City may deem necessary in its reasonable and sole discretion_ The identity of the Consultants employed shall be as determined by the City in its reasonable and sole discretion. The scope of work of cash respective Consultant is attached hereto as Exhibits "B" - "E". The City reserves the right, in its reasonable and sole discretion, to amend the scope of work as it deems necessary and appropriate where such amendments are reasonably necessary and related to the City's proper review and consideration of the Applicant's project. The Applicant agrees that, notwithstanding the Applicant's payment obligations under this Agreement, the Consultants selected by the City shall be the contractors exclusively of tlnc City and not of the Applicant. Except for those disclosures required by law including, without limitation, the Public Records Act, all conversations, notes. memoranda, correspondence and other forms of communication by and between the City and the Consultants shall be, to the extent permissible by lave, privileged and confidential and not subject to disclosure to the Applicant. The Applicant agrees that it shall have no claim to nor shall it assert any right in any reports, correspondence, plans, maps, drawings, news releases or any and all other documents or work product produced by the Consultants pursuant to the Consultant Contracts. City shall include in each of the Consultant Contracts a termination provision authorizing the City to immediately terminate the contracts without cause by sending written notice of termination to the contractor. 3. Applicaant to Cooperate with Consultants. The Applicant agrees to cooperate in good faith with the Consultants. The Applicant agrees that it will instruct its agents, employees, consultants, contractors and attorneys to reasonably cooperate with the Consultants and to provide all, necessary documents or information reasonably requested of them by the Consultants; provided, however, that the foregoing shall not require the disclosure of any documents or information of the Applicant which by lave is privileged, proprietary, confidential, and exempt from disclosure under the Public Records Act. 4. City's Preliminary Selection of Consultants. The City has preliminarily decided to retain the following as Consultants pursuant to this Agreement: -RVPnn�isrI%067040 i (I) Environmental Consultant - (ii) Planning Project Manager - [Individual to be hired by City}. (iii"I Fiscal Consultant - (iv) Legal Counsel - Best Best& Krieger LLP. The Applicant agrees that the City may select other Consultants to replace the Consultants preliminarily identified above and may do so without consulting with the Applicant or obtaining the Applicant's approval. 5. Applicant's Payment_of Consultant Costs and Expenditures. The Applicant shall deposit with the City the amount of Dollars (S .00) (the "Deposit") [i.e.. the same or more as the Consultant Costs, below]. The City by its execution hereof, acknowledges receipt of and accepts the Deposit. The Deposit is to be used to pay the actual costs and expenditures incurred by the City relative to the Consultants Contracts ("Consultants Costs"). The City has preliminarily reviewed the scope of work required of each Consultant and has estimated the aggregate Consultants Costs to be no less than Dollars ($ ) ("Estimated Consultants Costs"). tPrior to the Effective Date of this Agreement, the Applicant paid the City for portions of certain costs associated with certain Consultant work which the City incurred prior to the Effective Date of this Agreement which costs and work are more particularly described in Fxhibit "F" ("Prior Payments"). The Applicant shall receive a credit against the Consultant Costs in an amount 1%r equal to the Prior Payments made to the City]. The City may draw upon the Deposit Icoin time to time to pay the Consultant Costs. The City shall provide Applicant with a written summary of' expenditures made from the Deposit, and the unexpended balance thereof, within ten (10) business days of receipt by the City of a written request therefor submitted by the Applicant, provided that the City shall not be required to provide a summary of expenditures more frequently than one time each quarter. The City shall, within ten (10) business days after the completion of that portion of the Project for with the Consultant has been retained, return the then unexpended and unencumbered portion of the Deposit to the Applicant, without interest. Such payment may also be made by the City to a designated payee upon the City's receipt of such direction in writing from Applicant. If the Deposit is reduced to a level that is J percentage ([ ]%) of the Deposit amount, and further services are required of the Contractors for the Project, the City Manager may, in his or her sole and absolute discretion, require the Applicant to supplement the Deposit to an amount not exceeding the original Deposit amount. b. Consultation with Applicant. The City may incur aggregate Consultants Costs up to the Estimated Consultants Costs without consulting the Applicant. The City shall use reasonable good faith efforts to consult with the Applicant prior to amending the scope of services to be provided by Contractors and incurring Consultants Costs which exceed the Fstimated Consultants Costs (`Excess Costs"). The Applicant's obligation to pay the City for Consultants Costs shall be contingent upon the City's providing the Applicant with written notice of the amendment of the scope of work to be performed by a Contractor prior to the completion of work. The decision to incur F,xcess Costs and the amount of Excess Costs to incur shall lie within the reasonable and sole discretion of the City. -K VY 118.1S R%t b704G.1 -3- For purposes of'Section 5, the City shall be deemed to have consulted with the Applicant when the City has provided written notice to the Applicant that the City reasonably anticipates that it will incur, or has incurred, Excess Costs. If, after consultation, the Applicant disagrees with the City's incurring of Excess Costs,then the Applicant's sole and exclusive remedy will be to terminate this Agreement pursuant to Section 9 of this Agreement, subject to the Applicant's obligation to pay the City Ior all Consultants Costs incurred by the City prior to the date of termination, whether or not yet paid by the City. 7. City to Retain Absolute Discretion. The Applicant acknowledges and agrees that notwithstanding the Applicant's payment obligations under this Agreement, the City is not obligated to approve any or all of the proposed uses for the Property, to approve any environmental documents or general plan or municipal code amendments which may be required for any of the uses contemplated for the Property, or to approve any development agreement pertaining to the Property. The Applicant warrants and represents that no City official, officer, employee, agent or attorney has represented, expressly or impliedly, that the City will approve any proposed use of the Property. The Applicant understands that there will be numerous legislative and adjudicatory decisions made by the City with regard to the development of the Property. All such decisions of the City with regard to the Property and the contemplated uses of the Property shall be made only after full compliance with all the City's statutory and other legal obligations and after considering all appropriate information and evidence, including such evidence which may cause the City to disapprove any or all of the contemplated uses of the Property. Notwithstanding anything in this Agreement to the contrary, the City retains all authority and discretion granted to it by law to either approve, disapprove or modify any of the proposed uses of the Property. The Applicant agrees that the City may approve, or approve with modifications, any or all components of the Applicant's proposed Project. 'I he Applicant agrees that the City shall not be bound by any recommendations or conclusions reached by the Consultants and that the City may accept or reject, in whole or in part, any such recommendations or conclusions which the City in its reasonable and sole discretion deems to be unreasonable or contrary to the City's land use ordinances and regulations or State statutes or regulations. 8. Term, The term of this Agreement shall commence on the date that this Agreement is approved by the City Council and fully executed by the parties and shall terminate when all work required by each Consultant Contract has been completed to the City's reasonable satisfaction and the Applicant has satisfied all of its obligations under this Agreement including, without limitation, the obligation to pay the City for Estimated Consultants Costs and Excess Costs. whether or not paid by the City prior to the date of termination. The Applicant's obligation to pay the City as provided in this Agreement shall survive the termination of this Agreement pursuant to this Section 8. 9. Early 'termination. The City may terminate this Agreement prior to the term set forth in Section 8 above, without cost or liability to the City, upon thirty (30) days prior written notice to the Applicant. The Applicant may in its reasonable and sole discretion terminate this Agreemen: prior to the end of the term set forth in Section 8 above upon thirty (30) days' prior written notice to the City; provided, however, that the Applicant has satisfied all of its obligations under this Agreement to date of termination regarding payment to the City of both -RVPL1 VJYJ'.be7040_1 -4- Estimated Consultants Costs and Excess Costs and, furthermore, that the Applicant has given City written notice withdrawing its application for the Project. Within two (2) City working days following either the City's decision to terminate this Agreement or the City's receipt of written notice indicating the Applicant's decision to terminate this Agreement, the City shalt notify the Consultants and instruct them to cease work under the Consultant Contracts. The Consultants shall be instructed to bill the City for any work completed prior to the date of termination of the Consultant Contract. Upon payment of all Consultant Costs, any remaining portion of the Deposit shall be returned to the Applicant. lo. Remedies Upon Default. An event of default shall be deemed to exist upon the occurrence of all three of the following: (i) hither the City or the Applicant has, without legal justification or excuse, breached any one or more of its obligations under this Agreement; and (ii) The nondefaulting party has sent written notice to the party claimed to be in default, specifying the default and what actions the nondefaulting party asserts should be taken to remedy the default, and (iii) The party claimed to be in default has not, within ten (10) days following receipt of the written notice described above, either corrected the default or taken actions, reasonably satisfactory to the nondefaulting party, to remedy the default within a reasonable period of time, but in no event longer than thirty (30)days after receipt of the written notice described above, 4.. Following an event of default, the nondefaulting party may exercise any and all remedies available to it pursuant to this Agreement, or at law or in equity, including, without limitation, instituting an action for damages, injunctive relief, or specific performance. l 1. Nonwaiver of Rights or Remedies. The failure of a party to exercise any one or more of its rights or remedies tinder this Agreement shall not constitute a waiver of that party's right to enforce that right or seek that remedy in the future. No course of conduct or act of forbearance on any one or more occasions by any party to this Agreement shall preclude that party from asserting any right or remedy available to it in the future. No course of conduct or act of forbearance on any one or more occasions shall be deemed to be an implied modification of the terms of this Agreement. 12. Assignability. This Agreement may not be assigned by either party with the prior and express written consent of the other party, which consent shall not be unreasonably withheld. In determining whether to approve a request by Applicant to assign this Agreement, the City may consider, among other things, the proposed assignee's financial status and commitment to the Project- Any attempted assignment of this Agreement not in compliance with the terms of this Agreement shall he null and void and shall confer no rights or benefits upon the assignee. 13- No Oral Modifications. This Agreement represents the entire understanding of the City and the Applicant and supersedes all other prior or contemporaneous written or oral agreements pertaining to the subject matter of this Agreement. This Agreement may be. Lr. -R V K J ti'J SS,66704C_1 -5- modified, but only by a writing signed by both the City and the Applicant. All modifications to this Agreement must be approved by the City Council of the City of San Jacinto. 14. Binding Upon Successors, This Agreement and each of its terms Shall be binding, upon the City, the Applicant and their respective officers, elected officials, employees, agents, contractors, and permitted successors and assigns. 15. Legal Challenges. Nothing herein shall be construed to require City to defend any third party claims and suits challenging any action taken by the City with regard to any procedural or substantive aspect of the City's approval of development of the Property, the environmental process, or the proposed uses of the Property. The Applicant may, however, in its sole and absolute discretion appear as real party in interest in any such third party action or proceeding, and in such event, it and the City shall defend such action or proceeding and the Applicant shall be responsible and reimburse the City for whatever legal fees and casts, including actual attorneys' fees, which may be incurred by the City in defense of such action or proceeding. This City shall have the absolute right to retain such legal counsel as the City deems necessary and appropriate and the Applicant shall reimburse the City for any and all attorneys' fees and costs incurred by the City as a result of such third party action or proceeding; provided, however, Applicant may, at any time, notify City in writing of its decision to terminate such payment obligation and, thereafter, in the event that the City decides to continue the defense of such third party action or proceeding, Applicant shall have no further obligation to reimburse City for its attorney tees and costs. 16. Attorneys' Fees. In the event that any action or proceeding, including arbitration, �.. is commenced by either the City or the Applicant against the other to establish the validity of this Agreement or to enforce any one or more of its terms, the prevailing party in any such action or proceeding shall be entitled to recover from the other, in addition to all other legal and equitable remedies available to it, its actual attorneys' fees and costs of litigation, including, without limitation, filing lees, service fees, deposition costs, arbitration costs and expert witness fees, including actual costs and attorneys' fees on appeal, 17. Jurisdiction and Venue. This Agreement is executed and is to be performed in the City of San Jacinto, Riverside County, California, and any action or proceeding brought relative to this Agreement shall be heard in the appropriate court in the County of Riverside, California. The City and the Applicant each consent to the personal jurisdiction of the court in any such action or proceeding. 18. Time is of the Essence. Except as otherwise expressly staled, time is of the essence in the performance of every act required pursuant to this Agreement. 19. Covenant of Further Assurances. The City and the Applicant shall take all other actions and execute all other documents which are reasonably necessary to effectuate this Agreement. 20. Interpretation. The City and the Applicant agree that this Agreement is the product of mutual negotiations and is an arms-length transaction. Each party has negotiated this NIAW Agreement with the advice and assistance of legal counsel of its own choosing. -iiv iu n�isn+erra�o_i -6- It is further agreed that this Agreement is a product of mutual drafting efforts by both the City and the Applicant and, accordingly, the rule that ambiguities in a document shall he construed against the drafter of the document shall have no application to this Agreement. In construing and interpreting this Agreement, the finder of fact shall give effect to the mutual intention of the City and the Applicant, notwithstanding such ambiguity, and may refer to the facts and circumstances under which this Agrccment is made and such other extraneous evidence as may assist the finder of fact in ascertaining the intent of the City and the Applicant. 21. Scverability. 11-any term or provision of this Agreement is found to be invalid or unenforceable, the City and the Applicant both agree that they would have executed this Agreement notwithstanding the invalidity of such term or provision. The invalid term or provision may be severed from the Agreement and the remainder of the Agreement may he enforced in its entirety. 22, Headings. The headings of each Section of this Agreement are for the purposes of convenience only and shall not be construed to either expand or limit the express terms and language of each Section. 21 Representations of Authority. Fach party signing this Agreement on behalf of a party which is not a natural person hereby represents and warrants to the other party that all necessary legal prrrcquisites to that party's execution of this Agreement have been satisfied and that he or she has been authorized to sign this Agreement and bind the party on whose behalf he or she signs. 24. Notices. Notices required under this Agreement shall be sent to the following: If to the City: City of San Jacinto 213 E. Main Street San Jacinto, CA 92583 Attention: City Manager Facsimile No. (909) 654-3728 If to the Applicant: Company Attention: Facsimile No. Notices given pursuant ;o this Agreement shall be deemed received as follows: (i) If sent by United States Mail - five (5) calendar days after deposit into the United States Mail.. first class postage prepaid. (ii) if by facsimile - upon transmission and actual receipt by the receiving party. -7- (iii) ll-by express courier service or hand delivery - on the date of receipt by the receiving party. The addresses for notices set forth in this Section 24 may he changed upon written notice of such change to either the City or the Applicant, as appropriate. 25, Days. Unless otherwise specified to the contrary, "days" in this Agreement shall mean calendar, not business, days. Dated: CITY OF SAN JACINTO a California municipal corporation (the "City") By: Mayor ATTEST: By: City Clerk APPROVED AS TO FORM: City Attorney Dated: COMPANY, a corporation By: Authorized Agent APPROVED AS TO FORM: Legal Counsel for Company -e V?U faVS B 667040.1 Exhibit"A" �%w Legal Description of the Property -uvr'[;W,Nis 667010.1 -9- Exhibit "B" •KV1'U HVS 6P667040.1 -10- Exhibit`C" N.. -A VP U R'J S 6'f)67040 I Exhibit "D" -RVYi IP JSB3 k)670-0.1 -�L- I xhibit"F" -RVITI1 V SRA6b 7040.1