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
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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.
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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
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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..
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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.
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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:
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(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.
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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
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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.
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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.
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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.
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(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
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Exhibit"A"
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Exhibit "B"
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Exhibit`C"
N..
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Exhibit "D"
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I xhibit"F"
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