HomeMy WebLinkAbout2004-1071
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RESOLUTION NO. 2004-107
A RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO APPROVING FORM OF MITIGATION
AGREEMENT IN THE VERDEMONT FIRE STATION SERVICE AREA AND
AUTHORIZING EXECUTION OF THE FINAL FORM OF MITIGATION
AGREEMENTS WITH PARTICIPATING DEVELOPERS (COMMUNITY
FACILITIES DISTRICT NO. 1033)
WHEREAS, the City of San Bernardino, California (the "City"), is a municipal
corporation and charter city, duly organized and existing pursuant to the provisions of
the Constitution of the State of California; and
WHEREAS, currently there are areas within the City which are not provided
with adequate fire and safety protection in light of the recent fires which ravished the
City, and new development within the Verdemont area of the City, because of
inadequate fire protection, will cause substantial adverse environmental impacts; and
WHEREAS, it is in the best interest of the City to provide additional fire and
safety protection prior to any new development as well as provide for a guaranteed
means to pay for such ongoing protection and assure the availability of fire station
services of the City to serve such new development; and
WHEREAS, prior to the approval of any subdivision map or other
construction, the City may require future development within the City to mitigate such
substantial adverse environmental impacts pursuant to the California Environmental
Quality Act (CEQA Public Resources Code Section 21000 et sue.), either through
inclusion of such development in a community facilities district pursuant to the
"Mello -Roos Community Facilities Act" (Government Code Section 53311 et sue.) or
by the payment of a "mitigation fee" (i.e., an "In -Lieu Fee") pursuant to Government
Code Section 66474; and
WHEREAS, the Mayor and the Common Council have commenced formation
proceedings for the establishment of a community facilities district (`Community
Facilities District No. 1033", or "CFD No. 1033"), which CFD No. 1033 is designed
to pay for a portion of the Verdemont Fire Station operations and maintenance through
the imposition of a special tax on all subject property within CFD No. 1033; and
WHEREAS, at this time the Mayor and the Common Council wish to approve
the proposed form of a "Mitigation Agreement", which Mitigation Agreement
provides that each owner/developer of a new project in the Verdemont Fire Station
Service Area may either elect to include the owner's/developer's property in CFD No.
1033 (thereby agreeing to make such property subject to the CFD No. 1033 special
tax), or to pay the In -Lieu Fee as described in the Mitigation Agreement, and to
authorize the execution of said Mitigation Agreement.
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A RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO APPROVING FORM OF MITIGATION
AGREEMENT IN THE VERDEMONT FIRE STATION SERVICE AREA AND
AUTHORIZING EXECUTION OF THE FINAL FORM OF MITIGATION
AGREEMENTS WITH PARTICIPATING DEVELOPERS (COMMUNITY
FACILITIES DISTRICT NO. 1033)
NOW, THEREFORE, BE IT RESOLVED, DETERMINED AND ORDERED
BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO, AS FOLLOWS:
Section 1. The above Recitals are true and correct in all respects and are
incorporated herein by reference.
Section 2. The Mitigation Agreement is hereby approved in substantially
the form as attached hereto as Attachment "I", and the Mayor or her designee is
authorized and instructed to execute and deliver the final form of the Mitigation
Agreement, with such non substantive changes thereto as the City Administrator, in
consultation with the City Attorney and Special Legal Counsel, may approve.
Section 3. The City Administrator is hereby authorized to do and perform
any and all such acts as necessary or advisable, in consultation with the City Attorney
and Special Legal Counsel, to carry out the purposes and intent of this resolution.
Section 4. This resolution shall take effect immediately upon its passage.
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A RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO APPROVING FORM OF MITIGATION
AGREEMENT IN THE VERDEMONT FIRE STATION SERVICE AREA AND
AUTHORIZING EXECUTION OF THE FINAL FORM OF MITIGATION
AGREEMENTS WITH PARTICIPATING DEVELOPERS (COMMUNITY
FACILITIES DISTRICT NO. 1033)
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the
Mayor and Common Council of the City of San Bernardino at a it. regular
meeting thereof, held on the 19th day of April 2004, by the
following vote, to wit:
Council Members: AYES
ESTRADA x
LONGVILLE x
MCGINNIS
DERRY x
KELLEY x
JOHNSON x
McCAMMACK x
NAYS ABSTAIN ABSENT
x
City rk
The foregoing resolution is hereby approved this 2 t sr day of
April 2004.
J Valles, Mayor
i of San Bernardino
Approved as to
Form and legal content:
JAMES F.
City Attpr
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ATTACHMENT "1"
Recording requested by )
and when recorded mail to: )
City of San Bernardino )
300 North "D" Street, 6`h Floor )
San Bernardino, CA 92418 )
Attn: Deputy Director/City Planner )
Exempt: Government Code $ 6103
Space above this line for Recorder's use only
AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND
RELATIVE TO MITIGATION OF FIRE STATION SERVICE IMPACTS
THIS FUNDING AND MITIGATION AGREEMENT ("Agreement") dated as of
2004 is entered into by and between the City of San Bernardino, a charter
city and a public body, corporate and politic (the "City"), and a
corporation, (the "Landowner").
WITNESSETH:
WHEREAS, the Landowner is the owner of the property described in Exhibit "A" and
depicted in Exhibit `B" hereto (the "Property") which the Landowner proposes to develop _
number of [dwelling units/acres of non-residential development] (the "Proposed Development");
and
WHEREAS, currently there are areas within the City which are not provided with
adequate fire and safety protection in light of the recent fires which ravished the City, and new
development within the Verdemont area of the City, because of inadequate fire protection, will
cause substantial environmental impacts; and
WHEREAS, it is in the best interest of the City to provide additional fire and safety
protection prior to any new development in the Verdemont area, as well as provide for a
guaranteed means to pay for such ongoing protection and assure the availability of Fire Station
Services (as hereinafter defined) of the City; and
WHEREAS, prior to the approval of any subdivision map or other construction in the
Verdemont area, the City may require such future development within the City to mitigate such
substantial environmental impacts pursuant to the California Environmental Quality Act
2004-107
("CEQA", Public Resources Code Section 21000 et sue.), and Government Code Section
66474(e); and
WHEREAS, the Landowner is seeking approval of the Proposed Development by the
City; and
WHEREAS, the City, subject to receipt of funds pursuant to this Agreement, intends to
provide for payment for a portion of the operations and maintenance of fire protection and
suppression services ("Fire Station Services") as authorized pursuant to Section 53313 of the
Mello -Roos Community Facilities District Act of 1982, as amended (the "Act"), for the Proposed
Development and intends to form, or has formed and intends to annex property to, a community
facilities district ("CFD No. 1033"), and is amenable to including the Property, pursuant to the
Act, in CFD No. 1033 in either "Formation" or "Annexation" proceedings, whichever is
applicable, to pay for such Fire Station Services to serve the Proposed Development; and
WHEREAS, the City and the Landowner intend that partial funding of Fire Station
Services required to serve the development within the Property shall be provided on a timely
basis by means of payment through CFD No. 1033 as provided in this Agreement.
NOW, THEREFORE, in consideration of the terms and conditions herein set forth, the
City and the Landowner DO HEREBY AGREE AS FOLLOWS:
1. Definitions. As used in this Agreement, all capitalized terms shall have the
meanings set forth in Section A of Exhibit "C" or the following meanings, whichever is
applicable:
"Annexation" means (in the event that CFD No. 1033 has been formed) the annexation of
the Property to CFD No. 1033 as provided under Section 53339 of the Act.
"CFD No. 1033" means the community facilities district to be formed by the City
pursuant to the Act and known by that name.
"City" means the City of San Bernardino, California.
"Completion of Annexation to CFD No. 1033" shall be deemed to have occurred upon
the occurrence of the following: (i) the annexation of the Property (if the Property is to be
included in Annexation proceedings) to CFD No. 1033, including the authorization for
the levy by CFD No. 1033 of the Special Taxes; (ii) the approval by the qualified electors
of CFD No. 1033 of the levy of the Special Taxes; (iii) the expiration of the statute of
limitations provided in Section 53359 of the Act, and (iv) the effective date of the first
applicable validating legislation by the State of California.
"Completion of Formation of CFD No. 1033" shall be deemed to have occurred upon the
occurrence of the following: (i) the inclusion of the Property within CFD No. 1033 (if the
Property is included in Formation proceedings), including the authorization for the levy
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by CFD No. 1033 of the Special Taxes and (ii) the approval by the qualified electors of
CFD No. 1033 of the levy of the Special Taxes, (iii) the expiration of the statute of
limitations provided in Section 53359 of the Act, and (iv) the effective date of the first
applicable validating legislation by the State of California.
"Formation" means the establishment of CFD No. 1033 including the Property (in the
event the Property is to be included in Formation proceedings) pursuant to the Act.
"In -Lieu Fee" means a payment to be made as provided under Section 2.1 prior to the
approval of each tentative or parcel map for residential development in the amount of
$6,349.88 per dwelling unit, whether for a single family or a multi -family unit, and prior
to the approval of each tentative or parcel map for commercial/retail/office/industrial
zoning classifications in the amount of $44,358.47 per acre of development as set forth on
a site plan of development, which amounts shall increase by an amount not to exceed 2%
per Fiscal Year commencing July 1, 2004, and each July 1 thereafter through July 1,
2033. The amounts of the In -Lieu Fee shall not increase after July 1, 2034.
"Project" means any project undertaken for the purpose of development involving the
approval or issuance of any permit or entitlement for use by any governmental agency and
includes all such permits and entitlements for use whether classified as quasi -legislative,
quasi-judicial or ministerial in nature, including, but not limited to, the adoption,
amendment, approval or issuance of any general plan, specific plan, master plan, zoning
ordinance, tentative subdivision map, tentative parcel map, final subdivision map, final
parcel map, variance, conditional use permit, site plan, plot plan, development plan,
annexation, public utility connection, building permit and certificate of occupancy.
"Fire Station Services" means operations and maintenance of fire suppression and
protection facilities, to serve needs created by development within the boundaries of CFD
No. 1033.
"Special Tax" or "Special Taxes" means the " Special Tax" as defined in Exhibit "C"
including any whole or partial prepayment thereof as provided in Section F of Exhibit
"C.,
"State" means the State of California.
2. Mitigation of Fire Station Services.
2.1 Formation of/ Annexation to the Mello -Roos District. In consideration for
the City providing Fire Station Services to serve the Property the Landowner agrees to participate
and execute all documents requested by the City relative to the inclusion of the Property within
CFD No. 1033 and the Special Taxes of CFD No. 1033 as described in Exhibit "C", in which
event City agrees to include the Property in the Formation of, or Annexation to, CFD No. 1033,
whichever is applicable, at the earliest practicable date. The inclusion of the Property in CFD No.
1033 shall be on the basis of the parameters set forth in Exhibit "C" with respect to the Rate and
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Method of Apportionment of the therein described Special Taxes. The Landowner, and its
successors and assigns, shall be deemed to have fulfilled and mitigated their entire obligation to
assist in paying for Fire Station Services to serve the development of the Property, so long as the
provisions of this Agreement are complied with by the Landowner, upon the occurrence of the
Formation of, or Annexation to, CFD No. 1033, or, in the event that the Landowner fails to
participate with and execute all documents requested by the City relative to the inclusion of the
Property in CFD No. 1033, then the Landowner shall be obligated to pay the In -Lieu Fee
pursuant to the terms of this Agreement.
The Landowner hereby acknowledges that there are certain costs associated with the
inclusion of the Property in the Formation of CFD No. 1033 or the Annexation to CFD No. 1033
(whichever is applicable to the Property). In this regard the Landowner and the City agree that
any costs relative to the Formation or Annexation, as applicable, proceedings shall be borne by
the Landowner.
Landowner specifically acknowledges that the cost to the City relative to such Formation
or Annexation proceedings shall include, but shall not necessarily be limited to, costs of
preparation of relevant documentation, recording fees, if any, reasonable engineering and
attorneys fees, and similar and related costs.
2.2 Landowner Consent and Waivers.
Landowner hereby requests that the Property be included, at the earliest possible date, in
CFD No. 1033. Landowner hereby consents to the inclusion of the Property in CFD No. 1033
and to the levy and collection of the Special Tax for CFD No. 1033 and hereby waives any and
all rights to challenge the Formation of, or Annexation to, CFD No. 1033, the proceedings to
include the Property, the levy and collection of the Special Tax for CFD No. 1033 and any and
all other proceedings related thereto.
Landowner represents that it is the person legally entitled and authorized to cast the
ballots attributable to the Property in the landowner, mailed -ballot election to be conducted
within CFD No. 1033 to determine, among other things, whether certain land, including the
Property, shall be included in CFD No. 1033 and shall be subject to the Special Tax.
Landowner consents to the assessment of the Special Tax on the Property in the amount
of $350.00 per parcel for Residential property per year and $2,445 per parcel for Commercial,
Retail, Office or Industrial property per year (2004 Special Tax amounts, subject to adjustment in
accordance with Section C.1 of the Rate and Method of Apportionment attached hereto as
Exhibit "C") and waives the requirements for notice and hearing on the imposition of said
Special Tax, and waives any and all minimum time periods relative to the election pursuant to
Government Code Section 53326(a).
Further, the Landowner hereby waives the following:
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a) the preparation and distribution of an impartial analysis of the ballot measure,
as well as arguments in favor and against, under the authority of Government
Code Section 53327(b);
b) the requirements regarding the time to mail ballots to the qualified electors
under Elections Code Section 4101, and agrees that the Landowner or
Landowner's designated representative may accept either mailed service or
personal service of the ballots;
c) the requirements regarding identification envelopes for the return of mailed
ballots contained in Government Code Section 53327.5;
d) any and all defects in notice or procedure in the conduct of the election,
whether known or unknown (except the right to vote and to have the ballots
fairly counted), and Landowner hereby further states that the election is being
expedited, pursuant to this waiver and consent, at the particular instance and
request of the Landowner.
2.3 Other Properties. In order to equalize treatment of landowners seeking to
develop within the City boundaries, the City agrees to use its best efforts to enter into agreements
comparable to this Agreement with the owners of other properties within the City in order to
obtain financial commitments for Fire Station Services from them at least equal to that
committed to by the Landowner hereby; provided, however, if, notwithstanding the use of such
best efforts, the City is unable to enter into such agreements, such inability shall not constitute a
breach of this Agreement.
2.4 Landowner's Covenant. The Landowner hereby covenants to the City that
the Landowner shall provide, or by contract with any developer or merchant builder of any part
of the Property require to be provided, the "Notice of Special Tax" required by Section 53341.5
of the Act or any similar successor statute. The Landowner expressly acknowledges that the City
and CFD No. 1033 shall have no duty or obligation and shall incur no liability, jointly or
severally, with respect to the foregoing covenant of the Landowner.
2.5 Indemnification Regarding Disclosure. The Landowner shall assume the
defense of, indemnify and hold harmless the City and CFD No. 1033 and each of their officers,
employees and agents from and against any and all actions, damages, claims, losses, expenses or
liability arising from, or related to, Landowner's covenant and obligation to disclose the Special
Tax to property owners as provided in Section 53341.5 of the Act, or as amended in the future to
the extent such information is furnished by the Landowner.
3. Binding on Community Facilities District. Upon the Completion of Formation of
CFD No. 1033 (or Annexation to CFD No. 1033), CFD No. 1033 shall automatically become a
party to this Agreement, and all provisions hereof which apply to the City shall also apply to
CFD No. 1033. The Mayor and the Common Council of the City, acting as the legislative body
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of CFD No. 1033, shall perform all parts of this Agreement which require performance on the
part of CID No. 1033,
4. General Provisions.
4.1 All of the covenants, stipulations, promises and agreements contained in
this Agreement by or on behalf of, or for the benefit of, any of the parties hereto, shall bind and
inure to the benefit of the successors of the respective parties.
4.2 Assignment.
(a) No Separate Transfers. No sale, transfer or assignment of any right
or interest under this Agreement shall be made unless made together with the sale,
transfer or assignment of all or a part of the Property.
(b) Notice and Assumption. Concurrent with any such sale, transfer or
assignment, or within thirty (30) days thereafter, the Landowner shall notify the City, in
writing, of such sale, transfer or assignment and shall provide City with an executed
agreement, in a form reasonably acceptable to the City, by the purchaser, transfer or
assignee by which the purchaser, transferee or assignee expressly and unconditionally
assumes all duties and obligations of the Landowner in this Agreement with respect to the
Property or part thereof conveyed.
(c) Consequences of Non -Compliance. Any sale, transfer or
assignment not made in strict compliance with paragraph (b) of this Section 4.2 shall
constitute a default by the seller, transferor or assignor under this Agreement; provided,
however, such default may be cured at any time by the purchaser, transferee, or assignee
executing an agreement pursuant to paragraph (b) of this Section 4.2 and no such default
shall affect the rights under this Agreement of any other owner of any part of the
Property. Notwithstanding the failure of any purchaser, transferee or assignee, to execute
the agreement required by paragraph (b) of this Section 4.2, the burdens of this
Agreement shall be binding upon such purchaser, transferee or assignee, but the benefits
of this Agreement shall not inure to such purchaser, transferee or assignee until and
unless such agreement is executed.
4.3 Amendment and Waiver. This Agreement shall be amended only by a
written instrument executed by the parties hereto or their respective successors and assigns. All
waivers of this Agreement must be in writing and signed by the appropriate authorities of the
parties hereto.
4.4 Severability. If any provision of this Agreement shall be held invalid,
illegal or unenforceable by a court of competent jurisdiction, the validity, legality or
enforceability of the remaining portions hereof shall not, in any way, be affected or impaired
thereby.
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4.5 Inteeration. This Agreement supersedes any and all other agreements,
either oral or in writing, between the parties with respect to the subject matter of this Agreement.
4.6 Notices. Demands and Communication. Formal notices, demands and
communications between the City and the Landowner hereunder shall be sufficiently given if (i)
personally delivered, (ii) mailed by registered or certified mail, postage prepaid, return receipt
requested, or (iii) delivered by Federal Express or other reliable private express delivery service
to the principal offices of the City or Landowner, as set forth below. Such written notices,
demands and communications may be sent in the same manner to such other addresses as either
party may from time to time designate by mail as provided in this Section. Such notices demands
or communications shall be deemed received upon delivery if personally served, or upon the
expiration of three (3) business days if given by other approved means as specified above:
If to the City: City Hall
300 North "D" Street
6`l' Floor
San Bernardino, California 92418
Attn: Deputy Director/City Planner
With a copy to: Lewis Brisbois Bisgaard & Smith LLP
650 East Hospitality Lane, Suite 600
San Bernardino, California 92408
Attention: Timothy J. Sabo, Esq.
If to the Landowner:
4.7 Attorneys' Fees. In any litigation arising out of the breach of this
Agreement by any party, the prevailing party in such litigation, in addition to any other relief
which may be granted, whether legal or equitable, shall be entitled to recover reasonable
attorneys' fees and all other reasonable costs incurred in such litigation and allowed by the court.
The costs, salary and expenses of the City Attorney, and members of his office, shall constitute
attorneys fees for the purposes of this Agreement.
4.8 Interpretation. The terms of this Agreement, including all Exhibits hereto,
shall not be construed for or against any party by reason of the authorship of this Agreement, but
shall be construed in accordance with the meaning of the language used. The Section headings
are for purposes of convenience only, and shall not be construed to limit or extend the meaning
of this Agreement.
4.9 Force Mai cure. The obligations of any party under this Agreement, and all
deadlines by which any party's obligations hereunder must be performed, shall be excused or
extended for a period of time equal to any prevention, delay or stoppage in performance which is
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attributable to any strike, lock -out or other labor or industrial disturbance, civil disturbance, act
of a public enemy, war, riot, sabotage, blockade, embargo, lightning, earthquake, fire, storm,
hurricane, tornado, flood, explosion, court injunction, moratorium on any necessary public
utilities.
4.10 Recordation and Subordination.
(a) Recordation. This Agreement or a notice describing the existence
of this Agreement and the Property may be recorded by the Landowner or by the District.
The parties hereby agree to execute such documents as may be needed to give such
notice.
(b) Subordination. Any existing monetary encumbrances or options in
favor of non -governmental agencies or entities shall be subordinated to this Agreement
prior to City certifying to City the availability of the Fire Station Services for the
Property.
4.11 Execution. This Agreement may be executed in several counterparts each
of which shall be an original and all of which shall constitute but one and the same agreement.
4.12 Mutual Cooperation. Each party to this Agreement agrees to cooperate
with the others, to act in good faith, to sign any other and further documents, and perform such
other acts, as may be reasonably necessary or proper in order to accomplish the intent of this
Agreement. No party shall do anything which shall have the effect of harming or injuring the
right of any other party to receive the benefits of this Agreement. The parties shall refrain from
doing anything which would render their performance under this Agreement impossible or
impractical.
4.13. No Third Party Beneficiaries. This Agreement is made and entered into
for the sole protection and benefit of the parties and their successors and assigns. No other
person or entity shall have any right of action based on any provision of this Agreement.
4.14 Exhibits. All Exhibits attached hereto are incorporated into this
Agreement by reference.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year first above written.
LM
APPROVED AS TO FORM:
EXHIBIT A
LEGAL DESCRIPTION
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MAP OF PROPERTY
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EXHIBIT C
RATE AND METHOD OF APPORTIONMENT OF SPECIAL TAX
COMMUNITY FACILITIES DISTRICT NO. 1033
CITY OF SAN BERNARDINO
This Rate and Method of Apportionment of this Special Tax sets forth the special tax
applicable to each Assessor's Parcel within Community Facilities District No. 1033 ("CFD No.
1033") of the City of San Bernardino ("City") to be levied and collected according to the special
tax liability determined by the Common Council of the City, acting as the Legislative Body of
CFD No. 1033. The applicable Special Tax shall be determined pursuant to the application of the
appropriate amount or rate as described below. All Taxable Property within CFD No. 1033,
unless exempted by law, or the provisions of Section E, below, shall be subject to the applicable
Special Tax levied and collected to the extent and in the manner herein provided.
This Rate and Method of Apportionment also is provided as an explanation to allow
landowners or residents within CFD No. 1033 to estimate the Special Tax to be annually levied
and collected, or prepaid, as the case may be, with regard to property within CFD No. 1033.
A. Definitions
"Act" means the Mello -Roos Community Facilities Act of 1982, as amended, being
Chapter 2.5 (commencing with Section 53311) of Division 2 of Title 5 of the California
Government Code.
"Administrative Expense" means any costs incurred by the City on behalf of CFD No.
1033 related to the determination of the amount of the annual levy of the Special Tax, the
collection of the Special Tax, the administration of the Bonds of CFD No. 1033, and the
other costs incurred in order to carry out the authorized purposes of CFD No. 1033.
"Special Tax" means the special tax to be levied in each Fiscal Year pursuant to Sections
C. and D. on each Assessor's Parcel for a period not to exceed 30 years including the
Initial Fiscal Year.
"Assessor's Parcel" means a parcel of land as designated on an official map of the San
Bernardino County Assessor which has been assigned a discrete identifying parcel
number.
"Commercial/Retail/Office/hidustrial Property" means property zoned for commercial,
retail, office or industrial uses or other non-residential uses.
"Common Council" means the Common Council of the City of San Bernardino.
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"Residential Property" means for any Fiscal year all Taxable Property for which a
foundation building permit for single family or multi -family units was issued prior to
May 1 preceding the Fiscal Year in which the Special Tax is being levied.
"Facilities" means the Fire Station Services as may be identified in the Community
Facilities District Engineer's Report prepared for CFD No. 1033 on file in the Office of
the City Clerk, or the continued operation and maintenance of the Verdemont Fire
Station, including but not limited to payment of compensation of employees, including
salaries and benefits, maintenance and operation of fire safety vehicles and the fire station
structures, any other expenses required to keep the such equipment and improvements in
fit operating condition and any incidental expenses (collectively, the "O&M Expenses")
to be financed by CFD No. 1033 pursuant to the Act.
"Fiscal Year" means the period starting on July 1st and ending the following June 30th.
"In -Lieu Fee" means a one-time fee, which fee shall be deposited into an interest bearing
reserve account for future O&M Expenses in the following amounts and for which a
further explanation of the In -Lieu Fee will be described in an estimated cost report:
Residential Zone $6,349.88 per residential dwelling unit as an In -Lieu
Fee
Commercial, Retail, Office Zone $44,358.47 per acre of development as set forth on a
site plan of development as an In -Lieu Fee
Industrial Zone $44,358.47 per acre of development as set forth on a
site plan of development as an hi -Lieu Fee
"Land Use Class" means any of the classes of Property listed in Table 1 and Table 2,
below.
"Project" means any project undertaken for the purpose of development involving the
approval or issuance of any permit or entitlement for use by any governmental agency and
includes all such permits and entitlements for use whether classified as quasi -legislative,
quasi-judicial or ministerial in nature, including, but not limited to, the adoption,
amendment, approval or issuance of any general plan, specific plan, master plan, zoning
ordinance, tentative subdivision map, tentative parcel map, final subdivision map, final
parcel map, variance, conditional use permit, site plan, plot plan, development plan,
annexation, public utility connection, building permit and certificate of occupancy.
"Taxable Property" means all Assessor's Parcels within the boundaries of CFD No. 1033
which are not exempt from the Special Tax pursuant to the Act and the provisions of
Section E. herein.
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B. Assignment to Land Use Classes
As soon as practicable, as of May 1 for the next succeeding Fiscal Year, all Taxable
Property within CFD No. 1033 shall be categorized as Residential Property or either
Commercial/Retail/Office/Industrial Zone Property. Taxable Property shall be subject to
a Special Tax pursuant to Sections C. and D. below.
C. Special Tax
1. Residential Property
The Special Tax for each Assessor's Parcel classified as Residential Property shall
be the amount determined by reference to Table 1 and the paragraphs that follow
Table 1.
Table 1
Special Tax Rates for Residential Property
(For the Fiscal Year 2004-05)
Special
Land Use Class Land Use Description Tax Per Unit (2004-05)
1 Single Family Detached Unit $350.00
2 Multi -Family Unit/Attached Dwelling Unit $350.00
In determining the Special Tax which may be levied in any Fiscal Year, on July 1,
2004, and on each July 1 thereafter, the Special Tax shall be increased by an
amount not to exceed 2 % of the amount in effect for the previous Fiscal Year,
until July 1, 2034. After July 1, 2034, no further escalation of the Special Tax
shall occur.
2. Commercial/RetaiVOMce/Industrial Zone Property
The Special Tax for each Assessor's Parcel classified as either Commercial,
Retail, Office, or Industrial Zone Property shall be the amount determined by
reference to Table 2 and the paragraphs that follow Table 2.
Table 2
Special Tax Rates for Commercial/Retail/Office/Industrial Zone Property
(For the Fiscal Year 2004-05)
Special
Land Use Class Land Use Description Tax Per Acre (2004-05)
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3 Commercial
$2,445.00
4 Retail
$2,445.00
5 Office
$2,445.00
6 Industrial
$2,445.00
In determining the Special Tax which may be levied in any Fiscal Year, on July 1,
2004, and on each July 1 thereafter, the Special Tax shall be increased by an
amount not to exceed 2 % of the amount in effect for the previous Fiscal Year,
until July 1, 2034. After July 1, 2034, no further escalation of the Special Tax
shall occur.
D. Method of Apportionment of the Special Tax
Commencing with Fiscal year 2004-05, and each Fiscal Year thereafter, the Council shall
determine the Special Tax to be collected from Taxable Property in CFD No. 1033. The
Council may levy the Special Tax on all Assessor's Parcels of Development Property by
levying the Special Tax for Land Use Classes 1, 2, 3, 4, 5 and 6.
E. Limitations
The Council shall not levy a Special Tax on properties owned by the State of California,
federal or other local governments, except as otherwise provided in Sections 53317.3 and
53317.5 of the Act. Property which becomes the property of the State of California, the
federal government or other public agency is liable for the Special Tax levied in the
Fiscal Year during which such transfer occurs and will be subject to the Special Tax in
each Fiscal Year thereafter under the original Land Use Class for such Assessor's Parcel.
Such Assessor's Parcel may be exempted, at the direction, and in the discretion, of the
Council in any Fiscal Year.
F. Prepayment of the Special Tax
Any owner of property within CFD No. 1033 may discharge the Special Tax obligation in
full or in part, by making payment pursuant to the applicable Sections F. 1. or F. 2 as
follows:
1. Upon the Approval of a Tentative or Parcel Map
At the time of approval of a tentative or parcel map, the owner of such residential
unit may prepay the Special Tax in full or in part by making a cash payment to
CFD No. 1033, in which case the Special Tax for the Initial Fiscal Year, and each
Fiscal Year thereafter, shall be reduced according to the following steps:
a. Determine the maximum prepayment if the owner were to prepay the
Special Tax in entirety. For Projects approved prior to July 1, 2005, the
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2004-107
maximum prepayment for each residential unit is $6,439.88 and for each
acre of development as set forth on a site plan of development for
Commercial/Retail/Office or Industrial zone property is $44,358.47. For
Projects approved on or subsequent to July 1, 2005, the maximum
prepayment shall increase by an amount not to exceed 2% per annum,
commencing July 1, 2005, and each July 1 thereafter until July 1, 2034,
upon which date the maximum prepayment shall be fixed and shall not
thereafter increase.
b. Determine the property's revised Special Tax by multiplying the
property's applicable Special Tax for the Initial Fiscal Year determined
pursuant to Section C. 1. by one minus the quotient obtained by dividing
the cash payment made by the owner pursuant to this Section F. 1 .b. by
the maximum prepayment obligation determined pursuant to Section F. 1
.a. The property's revised Special Tax for the Initial Fiscal Year, and each
Fiscal Year thereafter, shall be the Special Tax for the applicable land use
designation (Residential or Commercial/Retail/Office/Industrial zone
Property) for purposes of Sections C. and D. herein.
2. After the Approval of the Tentative Map/Parcel Map
After the time a tentative or parcel map has been approved, and prior to May 1 for
the next succeeding Fiscal Year, the owner of such parcel may prepay the Special
Tax in full or in part by making a cash payment to CFD No. 1033, in which case
the Special Tax for the applicable Fiscal Year, and each Fiscal Year thereafter,
shall be reduced according to the following steps:
a. Compute the present value of the Special Tax using a period equal to the
lesser of the remaining term for which the Special Tax may be levied on
such parcel; then
b. Multiply the amount determined in Section F.2.a; above, by the owner's
desired prepayment percentage (which shall be a minimum of twenty
percent (20%) of the present value of the total Special Tax) to determine
the prepayment amount subject to additional adjustments as specified
below; then
C. Add the following to the result of Section F.2.b.:
i) Unpaid special taxes, interest and penalties, if any, which have
been entered on the Assessor's tax roll; and
iv) a $75 administrative charge per Assessor Parcel.
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2004-107
d. The Special Tax applicable to property utilizing a prepayment percentage
less than 100% percent shall be revised in the Fiscal Year following the
date of prepayment by multiplying such property's Special Tax by the
prepayment percentage actually determined in Section F.2.b. Such
property's revised Special Tax for the Fiscal Year following the date of
prepayment, and each Fiscal Year thereafter, shall be the Special Tax for
such property for purposes of Sections C. and D. herein.
In addition, the Special Tax and the In -Lieu Fee shall be recalculated annually to reflect
(i) any changes in the O&M Expenses, (ii) the annexation of additional property into the District,
(iii) the payment of the O&M Expenses, or any portion thereof, with funds other than the Tax,
(iv) the amount of In -Lieu Fees available to be applied for the applicable for which the
calculation is being made, and (v) any other changes which may affect the estimated O&M
Expenses for such year, except that in no event shall the In -Lieu Fee be increased by more than
2% per year nor shall the Tax be increased by more than 2% per year, based upon a cost inflation
formula to be continued in the Estimated Cost Report and the Engineer's Report and made a part
of the formation documents for the District, from the previous year for any property located
within the District that was previously assessed and charged with the Tax in the immediately
preceding year; and
G. Manner of Collection
The Special Tax will be collected in the same manner and at the same time as ordinary ad
valorem real property taxes. The Special Tax shall be subject to the same penalties and
the same procedure, sale and lien priority in case of a delinquency as provided for with ad
valorem taxes. The collection of the Special Tax shall otherwise be subject to the
provisions of the Act. The Common Council reserves the power to provide for alternative
means of collection of special taxes as permitted by the Act.
H. Termination of Special Tax Levy
Provided that Special Taxes previously levied on an Assessor's Parcel are not delinquent,
the lien of special taxes of CFD No. 1033 shall terminate as to such Assessor's Parcel at
the close of the thirtieth (30) Fiscal Year following the beginning of the Initial Fiscal
Year for such Assessor's Parcel. Furthermore, provided an owner within CFD No. 1033
fully and completely discharges their special tax obligation pursuant to Sections F.1
and/or F.2, the lien of special taxes of CFD No. 1033 shall terminate.
Pursuant to Section 53330.5 of the Act, the Council shall, upon written request, cause to
be recorded in the official records of San Bernardino County a Notice of Cessation of
Special Tax Lien for each Assessor's Parcel upon termination of the lien on such
Assessor's Parcel.
I. Review/Appeal Board
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2004-107
The Council shall establish, as part of the proceedings and administration of CFD No.
1033, a special Review/Appeal Board. Any landowner who feels that the amount of the
Special Tax, as to their Assessor's Parcel, is in error may file a notice with the
Review/Appeal Board appealing the amount of the levy. The Review/Appeal Board shall
interpret this Rate and Method of Apportionment of the Special Tax and make
determinations relative to the annual administration of the special tax and any landowner
appeals, as herein specified.
4821-6750-9248.1 17
2004-107
STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN BERNARDINO )
On , before me,
personally appeared (here insert name and title of the officer)
personally known to be (or proved to me on the basis of satisfactory evidence) to be the person)s)
known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s)
on the instrument the person(s), or the entity upon of which the person(s) acted, executed the
Instrument.
WITNESS my hand and official seal.
Signature
Notary Public
4821-6750-9248.1 18
2004-107
STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN BERNARDINO )
On , before me, personally
appeared (here insert name and title of the officer) personally
known to be (or proved to me on the basis of satisfactory evidence) to be the person)s) known to
me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that be/she/they executed the
same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the
instrument the person(s), or the entity upon of which the person(s) acted, executed the
instrument.
WITNESS my hand and official seal.
Signature
Notary Public
4821-6750-9248.1 19