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HomeMy WebLinkAbout2012-078 RESOLUTION NO. 2012-78 1 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO APPROVING AN AGREEMENT WITH INLAND VALLEY 3 DEVELOPMENT AGENCY (IVDA) FOR STORM DRAIN IMP ACT FEE 4 PREP A YMENT. 5 6 WHEREAS, the master-planned storm drain improvements completed by the IVDA are currently identified in the City's Master Storm Drain Facilities Plan, which identifies storm drain improvements that are to be funded by Storm Drain Impact Fees, and 7 WHEREAS, the IVDA's construction of said storm drain improvements at no cost to 8 the City has saved the Storm Drain Impact Fee program approximately $6,584,300, and 9 10 11 12 13 14 WHEREAS, the IVDA requests approval of an agreement establishing credit toward Storm Drain Impact Fees in recognition of their construction of various master-planned storm drain improvements at no cost to the City or the Storm Drain Impact Fee program. THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The City Manager is hereby authorized and directed to execute the attached Agreement marked Attachment" I" and made a part hereof. 15 16 17 18 19 20 21 22 23 24 25 26 27 III 28 III SECTION 2. This Agreement and any amendment or modifications thereto shall not take effect or become operative until fully signed and executed by the parties and no party shall be obligated hereunder until the time of such full execution. No oral agreements, amendments, modifications or waivers are intended or authorized and shall not be implied from any act or course of conduct of any party. SECTION 3. The authorization to execute this Agreement is rescinded if the parties to the Agreement fail to execute it within ninety (90) days of passage of this Resolution. III III .~;.l<__,__"_,.,,,p,...,.,.. . 2012-78 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY 2 OF SAN BERNARDINO APPROVING AN AGREEMENT WITH INLAND VALLEY DEVELOPMENT AGENCY (IVDA) FOR STORM DRAIN IMPACT FEE 3 PREP A YMENT. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a meeting joint regular thereof, held on the 7 th day of ,2012, by the following vote, to wit: May Council Members: AYES NAYS ABSTAIN ABSENT MARQUEZ x - JENKINS x VALDIVIA X - SHORETT x KELLEY X JOHNSON X MCCAMMACK X - ,2012. May (C(Q)fPlf STORM DRAIN DEVELOPMENT IMPACT FEE PREPAYMENT AGREEMENT BY AND BETWEEN THE CITY OF SAN BERNARDINO AND THE INLAND VALLEY DEVELOPMENT AGENCY This Stonn Drain Development Impact Fee Prepayment Agreement (this "Agreement"), is effective as of , 2012, and is entered into by and between the City of San Bernardino, a, charter city under the Constitution of the State of California (the "City"), and the Inland Valley Development Agency, a joint exercise of powers authority formed under the laws of the State of California (the "IVDA"), in furtherance of defining certain rights and responsibilities of the parties with respect to those issues pertaining to the construction, installation and the prior funding by the IVDA of certain public storm drain infrastructure improvements as previously dedicated to and accepted by the City, and to provide for the cash payments and recognition of credits to the IVDA for the advance payment as previously made by the IVDA with respect to the City's master-planned storm drain infrastructure improvements financed and installed by the IVDA for the benefit of the City. RECITALS WHEREAS, the parties seek to define certain commitments between the parties with respect to the previous financing and implementation by the IVDA for the design, construction and installation of certain public infrastructure improvements in the form of storm drain lines and appurtenant improvements installed by the IVDA in the vicinity of the former Norton Air Force Base ("NAFB") located within the municipal boundaries of the City within the area identified on the attached Exhibit "A" (the "Benefit Area"); and WHEREAS, the City intends by the execution and delivery of this Agreement to accept as the prepayment of the storm drain impact fees that otherwise would have been payable by the IVDA, pursuant to City of San Bernardino Municipal Code Section 3.27.105, or their successors in interest whether by other governmental entities or private parties, for those developed properties within the Benefit Area to be in full compliance with the provisions of the City's Development Impact Fee Program and the implementing ordinances and resolutions of the City as the same may be adopted, amended or modified from time-to- time, all in the manner as provided in this Agreement; and WHEREAS, the implementation of the City's Development Impact Fee Program provides for the establishment of certain local storm drain impact fees to be paid upon the occurrence of new development activity for which the City intends, by the execution and delivery of this Agreement, to provide to the IVDA recognition of the prepayment by the IVDA for those costs and designated storm drain infrastructure improvements as herein identified in the attached Exhibit "B" to thus enable the IVDA to receive and apply credits against future storm drain impact fees for properties and developments to be designated by the IVDA for the benefit of the IVDA and its assignees ("IVDA Assignees") within the Benefit Area; and Storm_Drain_DIF ]repay_Agmt-04-23-12 WHEREAS, the IVDA has expended in excess of $6,584,376.00 on storm drain infrastructure improvements within the Benefit Area as further set forth on Exhibit "B" and the IVDA further expects to expend upwards of an additional $4,681,538.00 within the Benefit Area to install and construct a fully integrated and compliant storm drain infrastructure system within the Benefit Area for the benefit of the property owners therein and for the benefit of the City; and WHEREAS, the City is without current financial resources to undertake the design and construction and installation of storm drain infrastructure improvements and appurtenant facilities within the Benefit Area and seeks the cooperation of the IVDA to fully fund and implement a storm drain infrastructure system master plan within the Benefit Area for the benefit of the City. NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND CONDITIONS AS CONTAINED HEREIN, THE PARTIES TO THIS AGREEMENT DO HEREBY AGREE, AS FOLLOWS: Section 1. Storm Drain Impact Fee Credits and Reimbursement Payments. (a) In consideration of the facts as recited in the Recitals above, and as further set forth in the substantial evidence as provided to the Mayor and Common Council of the City at the time of approval of this Agreement by the City, the City hereby agrees that the City shall establish an IVDA Storm Drain Benefit Area. The Benefit Area is set forth on the map attached hereto as Exhibit "A". Furthermore, both (i) the IVDA for development projects sponsored or proposed by the IVDA, and (ii) all other development projects applying directly to the City for entitlements, grading permits or building permits shall be subject to the requirements of, and compliance with, the California Environmental Quality Act of 1970, as amended ("CEQA"), with regard to any changes in circumstances that are deemed to exist pursuant to findings and determinations made by the City in accordance with the requirements of CEQA that are hereafter found to be caused by any new development activity then being proposed within the Benefit Area as illustrated on Exhibit "A". (b) In recognition of the storm drain infrastructure improvements constructed installed by the IVDA in the Benefit Area equal to $6,584,376.00 (the "Benefit Area Credit Amount" subject to the deduction set forth in subsection (f) below for a net Benefit Area Credit Amount equal to $5,511,855.18) which represents the actual construction costs and other related costs paid by the IVDA for the design, inspection and permitting as approved by the City Engineer, the City hereby grants to the IVDA, and to all IVDA Assignees (as defined in Recitals hereto), the right of the IVDA to designate for each property owner or development project identified by the IVDA within the Benefit Area at the sole and absolute discretion of the IVDA a credit to be granted to each IVDA Assignee that shall be approved by the IVDA at its sole and absolute discretion in a duly executed writing from an authorized officer of the IVDA delivered to the City. Storm_Drain_DIF ]repaLAgmt-04-23-12 2 (c) The IVDA shall maintain true and correct records containing the dollar amount, date, property location and name of each IVDA Assignee for which the IVDA has provided a notice to the City for applying credits to reduce the Benefit Area Credit Amount. (d) In addition to the provisions of (b) above, the Benefit Area Credit Amount is additionally subject to increase from and after the date of this Agreement based upon a written submittal from the IVDA to the City Engineer together with all applicable documentation, contracts and evidence of payments (the "Notice of Increased Credit Amount") to verify that the presented additional master-planned storm drain infrastructure improvements and their associated cost as identified in the City's Storm Drain Master Facilities Plan and Development Impact Fee Program were constructed and installed by the IVDA during the term of this Agreement. The City Engineer shall have not more than ninety (90) calendar days after verified receipt or personal receipt of each Notice of Increased Credit Amount to reject any item contained in such subsequent submittal by the IVDA, and any costs not specifically rejected for cause as contained in each Notice of Increased Credit Amount within such ninety-day period shall be deemed approved for all purposes pursuant to this Agreement. Thereafter, the uncontested dollar amount as contained in the Notice of Increased Credit Amount shall then be added to the then current Benefit Area Credit Amount. Upon submittal of additional information as may be reasonably requested by the City Engineer, the process set forth above shall be repeated until the City Engineer has approved all dollar amounts set forth in the original or any subsequent or amended Notice of Increased Credit Amount, or the City Engineer has not acted within ninety (90) calendar days after receipt of such original, subsequent or amended Notice of Increased Credit Amount in which case all such amounts not timely disapproved shall for all purposes of this Agreement be deemed to have been approved and added to the dollar amount of the Benefit Area Credit Amount. The City Engineer shall have the right to reject an expense item or to seek additional information from the IVDA in good faith efforts to determine the validity of all costs of IVDA as incurred and paid for additional storm drain infrastructure improvements within the Benefit Area as set forth in each Notice of Increased Credit Amount. The increased credit amount shall not exceed the cost identified in the Master Facilities Plan for each facility or portion thereof that is being identified for credit. (e) Nothing contained in this Agreement shall limit or preclude the City from increasing the storm drain impact fee payable within the Benefit Area provided that any such increase in the storm drain impact fee is calculated on a City-wide basis and the IVDA has received prior written notice from the City of any such proposed increase in the storm drain impact fee prior to the consideration and final approval by the City. No such proposed increase in the storm drain impact fee shall be applicable to the IVDA for purposes of this Agreement that was not approved by the City in the manner and subject to the conditions precedent as required by this Agreement. (f) The parties recognize and agree that a certain Agreement for Deferred Payment of Development Impact Fees and Imposition of Lien was executed by the City and a developer in connection with certain proposed development within the Benefit Area on February 14,2012. The parties further agree that no payments shall be remitted to the City pursuant to said Agreement for Deferred Payment of Development Impact Fees and Imposition of Lien for storm drain development but rather a full credit equal to Storm_Drain_DIF ]repay.figmt-{)4-23-12 3 $1,072,520.82 shall be provided for the Storm Drain Impact Fee that otherwise would have been paid. The dollar amount of such Storm Drain Impact Fee that otherwise would have been payable equal to $1,072,520.82 shall be deducted from the initial dollar amount of the Benefit Area Credit Amount available in accordance with this Agreement and the lien of the above referenced Agreement for Deferred Payment of Development Impact Fees and Imposition of Lien shall be released and said Agreement shall be automatically terminated without any further action upon (i) the approval and execution of this Agreement, and (ii) the payment by the developer to the City of $64,186.23 for Fair Share Traffic Impact Fees and Law Enforcement and Fire Suppression Facilities, Vehicles and Equipment Fees. Section 2. Default: Notice of Default. Failure or delay by a party to perform any material term or prOVISlOn of this Agreement shall constitute a default under this Agreement; provided, however, that if the defaulting party commences to cure, correct or remedy the default within thirty (30) calendar days after receipt of written notice specifying such default and thereafter diligently completes such cure, correction or remedy, a breach of this Agreement shall not be deemed to have occurred. The party claiming that a default has occurred shall give written notice of default to the defaulting party, specifying the default and the details thereof. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default; provided, however, the nondefaulting party shall have no right to exercise any remedy for a breach hereunder without delivering the written default notice as specified herein. Section 3. Failure to Cure: Remedies. In the event that the defaulting party fails to commence to cure, correct or remedy a default within thirty (30) calendar days following written notice, as provided above, or thereafter fails diligently to complete such cure, correction or remedy, a breach of this Agreement shall be deemed to have occurred. In the event of a breach, the nondefaulting party may (i) at its option, terminate this Agreement andlor (ii) seek any appropriate remedy or damages available at law or in equity. All court actions filed to seek any enforcement or interpretation of this Agreement shall be filed solely in the Superior Court of the County of San Bernardino, in the City of San Bernardino. Section 4. No Waiver bv Failure or Delay: Cumulative Right. (a) Any failure or delay by either party in asserting any rights and remedies as to any default shall not operate as a waiver of any default or of any rights or remedies associated with a default. (b) The rights and remedies of the parties as set forth in Sections 2, 3, 4 and 5 are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise, at the same or different times, of any other rights or remedies for the same default or any other default by the defaulting party. Stonn_Drain_DIF ]repay_Agmt-04-23-12 4 Section 5. Enforceability of Agreement. This Agreement shall be deemed to be an enforceable agreement by and between the parties hereto. Either of the parties may bring such legal or equitable action as may be permitted under the laws of the State of California to enforce any provision of this Agreement. The successful party, as applicable, in any such action to interpret or enforce any provision hereof shall be entitled to receive from the party against which enforcement is sought all costs associated with such successful actions induding all attorney's fees, costs and other expenses. The costs, salary, and expenses of the City Attorney and members of his staff shall be considered attorney's fees for the purposes of this Agreement. Section 6. Notices. All notices to be given under this Agreement shall be in writing and shall be delivered personally, by Federal Express or other similar overnight courier or express delivery service or by certified or registered United States Mail, return receipt requested. All notices shall be given to the addresses of the parties as set forth herein. Unless specifically provided to the contrary in this Agreement, any notice pursuant to this Agreement shall be effective upon delivery or refusal to accept delivery, if delivered personally, one (1) calendar day after deposit with Federal Express or other similar overnight courier or express delivery service, and two (2) calendar days after mailing, if delivered by certified or registered United States Mail. Notices to the IVDA shall be sent to the following address: Inland Valley Development Agency 1600 E. Third Street San Bernardino, California 92408 Attention: Executive Director With a copy to: Lewis Brisbois Bisgaard & Smith LLP 650 E. Hospitality Lane, Suite 600 San Bernardino, California 92408 Attention: Timothy J. Sabo Notices to the City shall be sent to the following address: City Manager City of San Bernardino 300 North."D" Street, 6th Floor San Bernardino, California 92418 With a copy to: City Attorney City of San Bernardino 300 North "D" Street, 6th Floor San Bernardino, California 92418 Storm_Drain_DIF ]repay _Agmt-Q4-23- J 2 5 Each party shall promptly notify the other parties of any change or changes of address to which notices shall be sent pursuant to this Agreement. Section 7. Entire Agreement. This Agreement by and between the IVDA and the City represents the sole agreements of the parties regarding the matters addressed herein that exist as of the date hereof Section 8. Governing Law; Invalidity of Any Provision of Agreement. This Agreement shall be governed by the laws of the State of California. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unellforceable as among the parties, the remaining provisions shall continue in full force and effect. Section 9. No Third Party Beneficiary. The parties to this Agreement recognize and agree that there shall be no third party beneficiary of the commitments contained herein which are of benefit solely for the parties hereto except to the extent the IVDA designates an IVDA Assignee pursuant to Section 1 hereof. No other governmental entity or private party, person, property owner, partnership or corporation shall at any time have any rights pursuant to this Agreement or the actions intended to be taken by the parties hereto unless designated as an IVDA Assignee. Section 10. Amendments. This Agreement may only be amended, changed, modified or altered by a writing signed by all of the parties and approved by the respective governing boards thereof in the manner as required by applicable law. Section 11. Term of Agreement. (a) The term of this Agreement shall commence upon the full execution hereof by the parties and for all purposes pursuant to this Agreement shall be the date set forth in the introductory paragraph of this Agreement. This Agreement shall be in effect for a period of not less than twenty (20) years from and after the date of this Agreement and shall terminate and be of no further force and effect as of April 1, 2032, unless the parties to this Agreement have duly executed an amendment to this Agreement specifically extending the time for performance of the terms and provisions as set forth herein; provided, however, that the IVDA shall have the right to utilize the full amount of the unused Benefit Area Credit Amount then remaining from and after any such termination for properties and new development as set forth in Section I hereof subsequent to the termination date of this Agreement and subject in all instances to the provisions of CEQA which, based upon changes in conditions and circumstances, may require further CEQA analysis and review as further provided in said Section 1. Storm_Drain_DlP ]repay.figmt-04-23-12 6 (b) The parties agree that on and after April I, 2022, and through and including April I, 2032, either party to this Agreement may give written notice to the other party to seek a review of the progress of the development within the Benefit Area to determine whether any modifications should be considered by the parties as an amendment to this Agreement. Based upon such review either party shall have the right to submit to the other party written recommendations, if any, as to the manner in which this Agreement may be modified by the mutual consent of the governing bodies of the parties to this Agreement each at their sole discretion whether to approve any proposed amendment to this Agreement. No amendment or modification to this Agreement shall be effective unless approved by the parties in the manner required in Section 10. Section 12. Execution of Agreement. This Agreement may be executed in counterparts, and facsimile signatures shall be as effective as original signatures. Upon the execution hereof by the appropriate representative of both parties, this Agreement shall be deemed to have been approved by the governing bodies of each of the parties in accordance with all applicable provisions of State law. III III Stonn_Drain_DlF ]repay_Agmt-G4-23-12 7 STORM DRAIN DEVELOPMENT IMPACT FEE PREPAYMENT AGREEMENT BY AND BETWEEN THE CITY OF SAN BERNARDINO AND THE INLAND VALLEY DEVELOPMENT AGENCY INLAND VALLEY DEVELOPMENT AGENCY By: Co-chairperson By: Co-chairperson Attest: (SEAL) By; Kelly Berry Clerk of the Board Approved as to form: By: General Counsel CITY OF SAN BERNARDINO By: Title: Attest: (SEAL) By: Georgeann Hanna, City Clerk Approved as to form: Stonn_Drain_DIF ]repay_Agmt-04-23-12 8 41112.6892.8S22'1 EXHIBIT "A" BENEFIT AREA FOR STORM DRAIN IMPROVEMENT REIMBURSEMENT PAYMENTS AND CREDITS TO THE IVDA 10 j;~.'~"Ii"~'<,\l.W~'~~!~~\l'~:.'.l.'I;;.;z..v:~~~~~,~)t.~~~;r.........Wf~-:~';:.!,,~~~\lI\N-~.::4Iti;:w.,',i\..;::.~~',~.".,Vfl!'.,,:,,,,,,,~ ~t .i__:',:" .. ....' - CD '2 x ..au ~ (.) ~ C tc ~ 4812..(i892c8S22.1 EXflIBJ.T.~'B" PUBLIC SOTRMDRAIN PLAN FEE ClUfDIT ANALYSISFOR PRIOR IVDA STORM DR.AINlNFRASTRUC'I'lJRE IMPROVEMENTS WITHIN THE BENEFIT AREA 11 PUBLIC STORM DRAIN PLAN FEE CREDIT ANALYSIS FOR ZONE 2 COMPREHENSIVE STORM DRAIN PIAN NO.7 SAN BERNARDINO, CALIFORNIA PREPARED FOR City of San Bernardino 300 N. "0" STREET San Bernardino, CA 92408 June 07, 2011 JOB NO. 2585 PREPARED BY TillENES ENGINEERING 14349 FIRESTONE BLVD. LA MIRADA, CALIFORNIA 90638 (714) 521-4811 PURPOSE OF ANALYSIS As a result of new construction completed within the Project Area (refer to Exhibit 1) over the past several years developers have been required to install public storm drain systems to accommodate post construction storm flows. The purpose of this analysis is to determine what portion of the public stonn drain facilities, as outlined in the "Zone 2 Comprehensive Storm Drain Plan No.7" (refer to Appendix A), have either been completed or are no longer required due to alternate facility construction or drainage area redirection. From this analysis the construction costs associated ;Nith the completed or deleted storm drain facilities can be determined and applied as credit toward Storm Drain Development Impact Fees. Documents used to prepare this analysis include "Zone 2 Comprehensive Storm Drain Plan No. 7" prepared for San Bernardino County Flood Control District, dated December 29, 1982 and the "Development Impact Fee Calculation and Nexus Report for the Storm Drainage System for the City of San Bernardino" (refer to Appendix B) dated October 2006, hydrology maps and storm drain plans prepared by Thienes Engineering and hydrology maps and storm drain plans prepared by Associated Engineering. SCOPE OF ANALYSIS The public storm drain systems included in this analysis from "Plan No. T' are Timber Creek channel 7-C14, and stonn drain lines 7-C15 in Mill Street, line 7-C16 in Central Avenue and '-C17 in Hillcrest. Existing public storm drain facilities not constructed per "Plan No.7", but affecting "Plan No.7" storm drain construction costs, include systems in Lena Road, Norman Road, Clevenger Drive, Harry Sheppard Blvd., Tippecanoe Avenue and Central Avenue. ANALYSIS The attached exhibits titled "Storm Drain Master Plan Exhibit" (refer to Exhibit 2) indicate the portions of Public Storm drain lines that have been completed or re-aligned, as well as a cost associated with the constructed and "to be" constructed segments(refer to storm drain lines shown in red). The associated costs were determined using the 1982 SBCFCD quantity/cost estimates for "Plan No.7". The constructed or re-aligned portions of public storm drain lines were subtracted from the cost estimates to determine the credit value of constructed lines as well as determine the cost remaining to complete the lines. Refer to attached exhibits "A-l, A-2, A-3 & A-4" for calculations. The Master Storm Drain cost credits from the 1982 study were then adjusted to match the storm drain costs in the 2006 Development Impact Fee (DIF) study. The adjustment was obtained by multiplying the 1982 costs by a facto.r of 2.31551 to obtain the 2006 costs. In addition to the Master line storm drains there has also been constrnction of public storm drain facilities beyond the scope of the Master plan (refer to storm drain lines indicated in green) which contribute to the overall drainage scheme in the area. The construction of these storm drain lines may eause future construction of remaining "Plan No.7" storm drain lines to be downsized and therefore reduce cost. Table 1 summarizes the potential fee credits for the Master Storm drain lines as well as additional public storm drain lines constructed in public streets. TABLE 1 Public Storm Drain Previously Constructed Previously Constructed Future Facility Name by IVDA by City of Construction (available fee credit) San Bernardino 7-C14 $3.980.990.00 .$0.00 7-ClS . $1,385;979.00 credit $1.543.505.00 .. 7-C16 $1~617,911.00 credit ,. $1,685,439.00 7 -C17 $274.976.00. credit $1,452 594.00 Norman/Qevensrer $925,510.00 (const.cost) nla Tionecanoe Ave $2,380,000.00 (con st. cost) nla TOTAL $6,584 376.00 $3,980.990.00 $4,681.538.00 SUMMARY Line 7-C14 was improved by the City of San Bernardino and is being considered as a completed project at this time. DIF was paid to Qty for construction of the soft bottom portion of Timber Creek. A portion of the tributary area east of Tippecanoe Avenue was redirected to the Santa Ana River via the Tippecanoe Ave public storm drain. Line 7.CIS in Mill Street has not had any construction completed to date; however, tributary areas south of Mill Street and east of Tippecanoe Avenue have been redirected to other public storm drain systems shortening the required storm drain line in Mill Street and substantially reducing the pipe size required for the remaining future construction portion (pipe, size reduction bas not been incorporated into "future construction" costs, typical). Line 7-C16 in Central Avenue has had the easterly portion constructed by private forces. The easterly line as constructed redirects flows south of the remainder portion of storm drain line to be constructed thereby reducing required pipe size for future construction of westerly end of system. Line 7 -C17 in Hillcrest Road bas not had any constmction completed to date: however, the redirected Central Ave drain has acquired some of the Hillcrest tributary area reducing the length of the Hillcrest system. The NormanJOevenger public storm drain system provides additional underground conveyance of storm flows and will accommodate future development east of Oevenger Drive. The Tippecanoe Avenue public storm drain system has redirected tributary areas from 7C-14 and 7C-15 drains soutb to the Santa Ana River.