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HomeMy WebLinkAbout24-City AdministratorCITY OF SAN BERNARDINO -REQUEST FOR COUNCIL ACTION From: Fred Wilson, City Administrator Dept: City Administrator Date: Apri12, 2004 ^ ~~ O ~~ Subject: 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) Meeting Date: 4/19/04 Synopsis of Previous Council Action: 09/02/03 -Mayor and Common Council authorized staff to proceed with preparation of documents and appropriate Municipal Code amendments to impose a special tax disnict for the operation and maintenance of the proposed Verdemont Fire Stanton on new development only. 12/15/03 -Resolution was approved by of the Mayor and Common Council of the City of San Bernardino declaring the intention to establish a community facilities district for the ongoing operation and maintenance of a fire station for the Verdemont azea. Recommended motion: Adopt Resolution. ~/(~ (~ ~~ Signature Contact person: Teri Baker Phone: 5122 Supporting data attached: staff Report, Resolution, AgreementFormWard: FUNDING REQUIREMENTS: Amount: None Source: (Acct. No.) (Acct. Description) Finance: Council Notes: y Agenda Item No. C_ ITY OF SAN BERNARDINO -BEQUEST FOR COUNCIL ACTION STAFF REPORT Subject: Resolution of the Mayor and Common Council of the City of San Bernazdino 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) Back round: )n light of the recent fires which ravished the City, especially in this azea, providing a fire station within the Verdemont Fire Station Service Area is pazamount to the health and safety of the citizens. New development within the Verdemont Fire Station Service Area will exacerbate the existing need for additional fire protection services, a significant adverse impact under the California Environmental Quality Act ("CEQA", Public Resources Code Section 21000 et sue.) Accordingly, the City has the right to mitigate this adverse impact prior to approving any development, either through inclusion of such development in a community facilities district pursuant to the "Mello-Roos Community Facilities Act" (Government Code Section 53311 et sec .) or by the payment of a "mitigation fee" (i.e., an "In-Lieu Fee" as described in the proposed Mitigation Agreement) pursuant to Government Code Section 66474. Resolutions to commence formation proceedings for a community facilities district ("Community Facilities District No. 1033", or "CFD No. 1033") to pay for a portion of the Verdemont Fire Station operations and maintenance will be provided to the Mayor and Common Council at the next Council Meeting. The special tax of CFD No. 1033 and the Verdemont Fire Station operations In-Lieu Fee would each only apply to newly developed projects in the Verdemont Fire Station Service Area and not to any existing development. Based on certain assumptions used to determine the special tax rate for new residential development on an annual basis in addition to the special tax rate for new industrial, commercial and retail projects, the initial year tax rate for new residential units is $350 per dwelling unit and $2,445 per acre for new industrial, commercial and retail projects, adjusted annually over the course of the special tax, i.e. thirty (30) years. The special tax is subject to an annual increase, which may not exceed 2% per yeaz. By comparison, the upfront mitigation In-Lieu Fee would be equal to $6,349.88 for each new residential dwelling unit and $44,358.47 per acre for each new industrial, commercial and retail project within the Verdemont Fire Station Service Area. 4 The proposed form of the Mitigation Agreement`attached to this Resolution provides that each developer of a new project in the Verdemont Fire Station Service Area, which is subject to CEQA, may either elect to include the 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. 4828-2837-0784.1 CITY OF SAN BERNARDINO - FO IF'ST FOR COUNCIL ACTION STAFF REPORT This Mitigation Agreement ("Proposed Development") also includes a "Rate and Method of Apportionment of the Special Tax" (based on the aforementioned parameters), and the Mitigation Agreement is in recordable form (so that its payment provisions become a binding covenant on the property). In the event that the developer fails for any reason to participate in the formation or annexation proceedings for CFD No. 1033, as applicable, the Mitigation Agreement provides that the developer shall then be required to pay the In- Lieu Fee. Following formation proceedings, each developer of a new project in the Verdemont Fire Station Service Area will have the ability to either elect to annex into the CFD No. 1033 or pay the In-Lieu Fee. This Resolution approves the Mitigation Agreement in substantially the form as attached to the Resolution, and authorizes the execution of the Mitigation Agreement with participating developers subject to non substantive changes as authorized by Staff in consultation with the City Attorney and Special Legal Counsel. Fiscal Impact: It has been assumed that the City will be required to pay a substantial portion of the operating expenses for the Verdemont Fire Station until such time as a significant amount of new development has occurred in the Verdemont Fire Station Service Area. It is possible that upon full build-out of the Verdemont Fire Station Service Area perhaps upwards of 30% to 50% of the annual operating and maintenance costs of the Verdemont Fire Station would be paid through the special tax or the Verdemont Fire Station operations In-Lieu Fee, with the City General Fund paying the remaining operations and maintenance expenses annually. Recommendation• Adopt Resolution. 4828-2637-0784.1 ~.i 2 3 4 5 6 7 11 12 13 14 15 1 19 21 RESO~i411vltlt~r~ 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 Bemazdino, 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 aze azeas 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 sec .) 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'x, 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. 4815-7008-3584.1 No. ~y y~f 9~D~{ 1 2 3 4 5 8 9 10 ii 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 aze incorporated herein by reference. Section 2. The Mitigation Agreement is hereby approved in substantially the form as attached hereto as Attachment "1 ", 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. /// 16 /// 17 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 25 /// 2R /// C 28I I /// 4815-7008-3584.1 2 1 2 3 4 5 6 7 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 meeting thereof, held on the day of 2004, by the following vote, to wit: Council Members: AYES 9 ESTRADA 10 LONGVILLE 11 12 MCGINNIS 13 DERRY O 14 KELLEY 15 JOHNSON 16 McCAMMACK 17 191 211 City Clerk NAYS ABSTAIN ABSENT The foregoing resolution is hereby approved this 2004. Judith Valles, Mayor City of San Bemazdino 0 Approved as to Form and legal content: JAMES F. City Attpp 4815-7008-3584.1 3 day of ATTACHMENT "1" Recording requested by ) and when recorded mail to: ) City of San Bemazdino ) 300 North "D" Street, 6`h Floor ) San Bemazdino, 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 FIItE STATION SERVICE IMPACTS THIS FUNDING AND MITIGATION AGREEMENT ("Agreement") dated as of © , 2004 is entered into by and between the City of San Bemazdino, 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 azeas 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 azea 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 azea, as well as provide for a guazanteed 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 Q Verdemont azea, the City may require such future development within the City to mitigate such substantial environmental impacts pursuant to the California Environmental Quality Act /^'1 ("CEQA", Public Resources Code Section 21000 et sec .), and Government Code Section V 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: ~j 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 Bernazdino, 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 lery by CFD No. 1033 of the Special Taxes; (ii) the approval by the qualified electors of CFD No. 1033 of the lery 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 ~"1 occurrence of the following: (i) the inclusion of the Property within CFD No. 1033 (if the V Property is included in Formation pmceedings), including the authorization for the levy 4821-6750-9248.1 2 ~r•~ by CFD No. 1033 of the Special Taxes and (ii) the approval by the qualified electors of ~,j 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 amulti-family unit, and prior to the approval of each tentative or pazcel map for commercial/retaiUoffice/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 Yeaz 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 pazcel 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 eazliest practicable date. The inclusion of the Property in CFD No. C 1033 shall be on the basis of the pazameters set forth in Exhibit "C" with respect to the Rate and 4821-6750-9248.1 3 © 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 aze certain costs associated with the inclusion of the Properly in the Formation of CFD No. 1033 or the Annexation to CFD No. 1033 (whichever is applicable to the Property). In this regazd 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 prepazation of relevant documentation, recording fees, if any, reasonable engineering and attorneys fees, and similaz and related costs. 2.2 Landowner Consent and Waivers. © Landowner hereby requests that the Property be included, at the eazliest possible date, in CFD No. 1033. Landowner hereby consents to the inclusion of the Property in CFD No. 1033 and to the lery 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 lery 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 pazcel for Residential property per yeaz and $2,445 per pazcel for Commercial, Retail, Office or Industrial property per yeaz (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: `+' 4821-6750-9248.1 4 a) the preparation and distribution of an impartial analysis of the ballot measure, as well as azguments in favor and against, under the authority of Government Code Section 53327(6); 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 regazding 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 particulaz instance and request of the Landowner. 2.3 Other Properties. Tn 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 o 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 similaz 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 Regazding 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 famished by the Landowner. 3. Binding on Communitv 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 V 4821-6750-9248.1 © of CFD No. 1033, shall perform all parts of this Agreement which require performance on the part of CFD 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 Sepazate 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 pazagraph (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 pazagraph (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 Severabilitv. 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. 4821-6750-9248.1 6 © 4.5 Irate agr lion. 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`h Floor San Bernardino, Califomia 92418 Attn: Deputy Director/City Planner With a copy to: Lewis Brisbois Bisgaard & Smith LLP 650 East Hospitality Lane, Suite 600 San Bemazdino, California 92408 Attention: Timothy J. Sabo, Esq. If to the Landowner: 4.7 Attomevs' 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 aze for purposes of convenience only, and shall not be construed to limit or extend the meaning of this Agreement. 4.9 Force Maieure. The obligations of any party under this Agreement, and all ~r deadlines by which any party's obligations hereunder must be performed, shall be excused or ~„j extended for a period of time equal to any prevention, delay or stoppage in performance which is 4821-6750-9248.1 7 attributable to any strike, lock-out or other labor or industrial disturbance, civil disturbance, act C of a public enemy, waz, riot, sabotage, blockade, embazgo, lightning, eazthquake, 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 maybe 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 maybe 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 aze incorporated into this Agreement by reference. //// //// //// //// //// 4821fi750-9248.1 8 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written. APPROVED AS TO FORM: By: By: EXHIBTT A LEGAL DESCRIPTION 4821-6750-9248.1 EXHIBIT B 4821-6750.9248.1 MAP OF PROPERTY IU 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 Bemardino ("Cit}~') 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 Apportiomnent 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 maybe, 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 Yeaz 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 Pazcel" means a pazcel of land as designated on an official map of the San Bemazdino County Assessor which has been assigned a discrete identifying parcel number. "Commercial/RetaiUOffice/Industrial 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. 4821-6750-9248.1 1 1 C "Residential Property" means for any Fiscal yeaz 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 Yeaz 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 Yeaz" means the period starting on July 1st and ending the following June 30th. "In-Lieu Fee" means aone-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 In-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 pazcel map, final subdivision map, final pazcel map, variance, conditional use permit, site plan, plot plan, development plan, annexation, public utility connection, building permit and certificate of occupancy. "Taxable Propert}~' means all Assessor's Parcels within the boundaries of CFD No. 1033 which aze not exempt from the Special Tax pursuant to the Act and the provisions of Section E. herein. 4821-6750-9248.1 12 C 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/RetaiUOffice/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 Pazcel classified as Residential Property shall be the amount determined by reference to Table 1 and the pazagraphs that follow Table 1. Table 1 Special Tax Rates for Residential Property (For the Fiscal Year 2004-OS) V Land Use Description Special Tax Per Unit (2004-OS) Land Use Class 1 2 2. Single Family Detached Unit $350.00 Multi-Family UniUAttached Dwelling Unit $350.00 In determining the Special Tax which maybe levied in any Fiscal Yeaz, 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 Yeaz, until July 1, 2034. After July 1, 2034, no further escalation of the Special Tax shall occur. CommerciaURetaiUOffice/Industrial Zone Property The Special Tax for each Assessor's Pazcel classified as either Commercial, Retail, Office, or Industrial Zone Property shall be the amount determined by reference to Table 2 and the pazagraphs that follow Table 2. Table 2 Special Tax Rates for CommerciaURetaiUOffice/Industrial Zone Property (For the Fiscal Yeaz 2004-OS) Special Land Use Class Land Use Descrintion Tax Per Acre (2004-OS) 4821-6750-9248.1 13 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 maybe levied in any Fiscal Yeaz, 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 Yeaz, until July 1, 2034. After July 1, 2034, no fiarther escalation of the Special Tax shall occur. D. Method of Apportionment of the Special Tax Commencing with Fiscal yeaz 2004-05, and each Fiscal Yeaz thereafter, the Council shall determine the Special Tax to be collected from Taxable Property in CFD No. 1033. The Council may lery the Special Tax on all Assessor's Pazcels 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 lery 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 Yeaz 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 Yeaz. 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 Yeaz 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 4821-650-9248.1 14 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/RetaiUOffice 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 Yeaz 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/RetaiUOffice/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 pazcel map has been approved, and prior to May 1 for Q the next succeeding Fiscal Yeaz, 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 Yeaz 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 pazcel; 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 Pazcel. 4821-6750-9248.1 15 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 Yeaz following the date of prepayment, and each Fiscal Yeaz 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 yeaz, except that in no event shall the In-Lieu Fee be increased by more than 2% per yeaz 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 yeaz for any property located within the District that was previously assessed and chazged with the Tax in the immediately preceding yeaz; 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 incase 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 Pazcel aze 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 Yeaz for such Assessor's Pazcel. 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 Bemazdino County a Notice of Cessation of Special Tax Lien for each Assessor's Pazcel upon termination of the lien on such Assessor's Pazcel O I. ReviewlAppeal Board 4821-6750-9248.1 1 f The Council shall establish, as part of the proceedings and administration of CFD No. 1033, a special Review/Appeal Boazd. Any landowner who feels that the amount of the Special Tax, as to their Assessor's Pazcel, is in error may file a notice with the Review/Appeal Boazd appealing the amount of the lery. 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. O O 4821-6750-9248.1 1']