Resolution 2010-24RESOLUTION NO. 2010-24
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF GILROY APPROVING A ONE -YEAR EXTENSION
FOR THE RESIDENTIAL DEVELOPMENT ORDINANCE
PERFORMANCE AGREEMENT FOR RDO 06 -04 FOR THE
RANCHO MEADOWS PROJECT
WHEREAS, Camino Enterprises Corporation ( "Applicant "), was granted 39 Residential
Development Ordinance units for the Rancho Meadows Project in 2007 ( "RDO 06 -04 "); and
WHEREAS, pursuant to the City's Residential Development Ordinance, Section 50.60 et
seq, the Applicant entered into a Residential Development Ordinance Performance Agreement
for RDO 06 -04 ( "RDO Agreement ") with the City, attached hereto as Exhibit "A "; and
WHEREAS, the Applicant has requested a one -year extension of its RDO Agreement to
modify the Build -Out Schedule and to extend the timeframe for the approval of the Tentative
Map/Final Map for each phase year identified in Exhibit `B" of the RDO Agreement by one (1)
year; and
WHEREAS, the application for an extension was timely filed prior to the RDO
Agreement's phase one final map processing deadline of July 1, 2010; and
WHEREAS, the Applicant is not in default of the RDO Agreement because the Applicant
paid the deposit of $36,000 ($3,000 for each unit in phase one) on December 4, 2009, and
submitted the Tentative Map application for phase one prior to the RDO Agreement's July 2010
Tentative Map submittal deadline; and
WHEREAS, this Resolution is exempt from environmental review pursuant to Section
15061(b)(3) of the State Guidelines implementing the California Environmental Quality Act of
1970, as amended; and
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Resolution No. 2010 -24
WHEREAS, the City Council at a duly noticed public meeting on June 7, 2010,
considered the proposed one -year extension of the RDO Agreement and the Staff Report dated
June 7, 2010, and determined to grant the extension; and
WHEREAS, the location and custodian of the documents or other materials which
constitute the record of proceedings upon which this project approval is based is the office of the
City Clerk.
NOW, THEREFORE, BE IT RESOLVED THAT:
1. That the Build -Out Schedule pursuant to the RDO Agreement is extended as
follows:
PHASE YEAR UNITS ALLOCATED Tentative Mau/Final Mau DEADLINES
2009 12 units TM submittal: July 2009
FM approval: July 1, 2011
2011 11 units TM submittal: July 2011
FM approval: July 1, 2012
2012 11 units TM submittal: July 2012
FM approval: July 1, 2013
2013 5 units TM submittal: July 2013
FM submittal: July 1, 2014
2. All other terms of the RDO Agreement which are not in conflict with the
provisions of this Resolution shall remain unchanged and in full force and effect. In the case of a
conflict in the terms of this Resolution and the RDO Agreement, the provisions of this
Resolution shall control.
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Resolution No. 2010 -24
PASSED AND ADOPTED this 14'' day of June, 2010, by the following vote:
AYES: COUNCILMEMBERS: ARELLANO, BRACCO, DILLON,
GARTMAN, TUCKER, WOODWARD and
PINHEIRO
NOES: COUNCILMEMBERS: NONE
ABSENT: COUNCILMEMBERS: NONE
APPROVED:
Albert Pinheiro, Mayor
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Resolution No. 2010 -24
DEC 1 20
This Residential DevVoltmlem�r ent Ordinance Performance Agreement ( "Agreement "), is
made and entered into as of 2002, by and between the CITY OF GILROY, a
Municipal corporation ( "City "), and �arnir�orPYiS�,t �ir/�. ( "Developer ").
RECITALS
A. WHEREAS, the City has enacted a Residential Development Ordinance, sections
50.60 et seq. of the Zoning Ordinance (the "RDO ");
B. WHEREAS, pursuant to the RDO, Developer applied for assignment to
Developer of a build -out schedule by the City Council of the City for the residential project (the
"Project ") described in the application (the "RDO Application ") file number RD
R f7 O� -p �,�Cahrlro/�P�adowf on file in the Planning Department;
C. WHEREAS, pursuant to the RDO, and in response to Developer's RDO
Application for a build -out schedule, Developer was assigned a build -out schedule by the City
Council ( "Build -Out Schedule ") for the Project, which Build -Out Schedule is shown on Exhibit
"A" attached hereto;
D. WHEREAS, Section 50.67 of the RDO requires that Developer agree in writing to
a set of performance and project standards relating to the Project.
NOW, THEREFORE, the parties agree as follows:
1. Map Applications and Approvals. The residential units assigned for the Project in
any single calendar year pursuant to the Build -Out Schedule is referred to in this Agreement as a
"Phase." For each Phase, Developer shall submit to City a complete application (as determined
by City) for a tentative subdivision map which shall be required under the provisions of the
California Subdivision Map Act in connection with such Phase ( "Tentative Map "), or if a
complete application for a Tentative Map for a Phase has been submitted before this Agreement
is executed by City and Developer then Developer shall submit a complete application for the
next approval to be obtained for such Phase as designated on Exhibit "B" attached hereto, not
later than the date designated for such application submittal for such Phase on Exhibit "B"
attached hereto. Approval of a final subdivision map meeting the requirements of the California
Subdivision Map Act ( "Final Map ") shall be obtained from the City for a Phase not later than
July 1 of the calendar year immediately following the calendar year to which such Phase has
been assigned by the Build -Out Schedule. City shall act in good faith in processing the Tentative
Map and Final Map applications and other applications identified on Exhibit "B," if any, for each
Phase in a timely fashion in accordance with nonnal City practice.
2. Pruiect Standards and 131.111dout.
(a) The Project must be developed in accordance with the time periods
designated in this Agreement and in substantial accordance with the Project description set forth
in the RDO Application, as such project description may have been amended in connection with
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Item IX.C.
Item V.D.
the City's approval of the Build -Out Schedule or as it may in the future be amended by mutual
written consent of the parties. Notwithstanding the foregoing, Developer may accelerate the
Build -Out Schedule for a Phase provided that (i) a Phase may not be accelerated beyond the
immediately preceding allocation year, (ii) the Project's Phases may be accelerated only in the
order that the Phases were assigned in the Build -Out Schedule, (ii) the Project will continue to be
in substantial accordance with the Project description set forth in the RDO Application, and (iii)
if the Build -Out Schedule becomes null and void as to any Phase (the "Terminated Phase "),
Developer shall not be able to accelerate the timing of a subsequent Phase into the calendar year
to which the Terminated Phase was originally assigned pursuant to the Build -Out Schedule.
(b) Notwithstanding Paragraph 2(a) above, should City reduce the number of
allowed units for the Project by greater than fifteen percent (15 %) as a condition of any City
approval, Developer shall have a period of thirty (30) days following such reduction within
which to notify City of its intent to proceed with or abandon the Project. Developer's failure to
notify City of its intent within this thirty (30) day period shall be deemed an election to proceed
with the Project based on the reduced number of allowed units. If Developer elects to abandon
the Project, the entire assigned Build -Out Schedule will become automatically null and void, this
Agreement shall terminate, and City shall refund to Developer the Deposit referred to in
Paragraph 3(a) of this Agreement to the extent previously delivered to the City, less any amounts
credited to Development Fees (defined in Paragraph 3(a) below).
3. Payment of Deposits and Fees.
(a) Not later than the Deposit Due Date (defined below), Developer shall pay
to the City a deposit (the "Deposit") equal to Three Thousand Dollars ($3,000) for each unit
allocated to Developer in the Build -Out Schedule for the First Phase (defined below). As used in
this Agreement the "Deposit Due Date" shall mean the date which is the later to occur of (i) the
approval of the Tentative Map for the First Phase of the Project, or (ii) the date that this
Agreement is executed by Developer and delivered to City. As used in this Agreement, the
"First Phase" shall mean the units assigned for the first calendar year in which residential units
are assigned for the Project under the Build -Out Schedule. The Deposit made by Developer
pursuant to this paragraph shall be held as security for the performance of Developer's
obligations under this Agreement and shall be credited against Development Fees which are in
effect at the time Developer is required to make full payment of such Development Fees, as such
Development Fees become due. The amount credited against Development Fees for a unit shall
not exceed the amount of the Deposit attributable to such unit. As used in this Agreement,
"Development Fees" means the sewer, water, storm and traffic fees which are required to be paid
at the time of Final Map approval and City's Park Impact, Police Impact, Fire Impact and School
Impact development fees which are required to be paid to the City at the time of issuance of
building permits for the Project.
(b) Developer shall pay all Development Fees, permit fees, processing tees,
architectural and site review Ices, and any other fee in effect at the time any application is tiled
or approval is sought (whether such tee currently exibts or is hereafter established) bused on the
applicable Ice schedule in effect at the time Developer is required to make frill payment of such
fees, as such fees become due
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Item IX.C.
Item V.D.
No Vested Riyhts.
(a) Developer acknowledges and agrees that no action taken under the RDO
with respect to the Project (including, without limitation, the rating of the Project, the setting of
Numerical Limits (referenced in the RDO), the granting of the Build -Out Schedule to Developer,
and the execution of this Agreement) shall result in the creation or vesting; of any rights
whatsoever by Developer with respect to the Project to receive any necessary City approvals or
permits or to construct any dwelling units or other improvements. Developer acknowledges and
agrees that issuance of necessary City approvals and permits shall be subject to all City
ordinances, policies and regulations in effect at the time of issuance. City shall not be obligated
to grant any approvall sought by Developer, and there shall be no vested rights, by reason of the
RDO, the assignment of the Build -Out Schedule, or the existence of this Agreement. If City
finally denies, or a court of law finds unlawful, any approval necessary for Developer to
construct any portion of the Project for any reason (including without limitation those not within
the control of Developer) and the time by which a final map for such portion of the Project is
required to be obtained pursuant to this Agreement has expired, then (i) that portion of the
assigned Build -Out Schedule for which approvals have been denied or found unlawful shall
become automatically null and void, and (ii) if no further units remain to built under the Build -
Out Schedule and Developer is not in default under this Agreement, then any portion of the
Deposit which has not been applied against Development Fees shall be returned to Developer.
(b) Notwithstanding Paragraph 4(a) above, nothing in this Agreement shall be
interpreted to preclude Developer from hereafter seeking to obtain any vested rights to develop
the Project that may be obtained by execution of a Development Agreement pursuant to
Government Code sections 65864 et seq., obtaining a vesting tentative subdivision map pursuant
to Government Code sections 66498.1 et seq. or by any other method of obtaining vested
development rights permitted by California law; provided, however, that nothing in this
Agreement shall be construed as an agreement on the part of City to grant such vested rights.
City and Developer agree that any future amendment to the Build -Out Schedule will not impair
any vested rights previously obtained by Developer nor automatically amend any vested rights
previously obtained by Developer.
5. Map Condition or Expiration. Developer acknowledges and agrees that a
Tentative Map may contain a condition, at City's option, requiring that the Developer not be in
default under the RDO, this Agreement or any conditions of approval applicable to the Project,
or in connection with the Build -Out Schedule granted to Developer. Upon expiration of a
Tentative Map for any Phase, that portion of such Phases Build -Out Schedule for which building
permits have not yet been issued by the City shall automatically become null and void and this
Agreement shall tenninate as to such Phase.
6. Default.
(a) if Developer fails to deliver the Deposit to City on or before the date
required by this Agreement, the Build -Out Schedule shall automatically become null and void as
to all Phases of the Project and this Agreement shall terminate without necessity of notice or
hearing;. If Developer tails to submit a complete application (as determined by City) for a
Tentative Map or other City approval required pursuant to this Agreement for a Phase on or
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Item IX.C.
Item V.D.
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before the dates required by this Agreement, fails to obtain City Approval of a Final Map for any
Phase on or before the date required by this Agreement, or if a Tentative Map for a Phase
expires, Developer shall be in default of its obligations under this Agreement as to such Phase,
the Build -Out Schedule shall automatically become null and void as to such Phase, and this
Agreement shall terminate as to such Phase without necessity of notice or hearing. Within thirty
(30) days after the Build -Out Schedule becomes null and void as to a Phase and this Agreement
terminates as to a Phase pursuant to this Paragraph 6, Developer may appeal to the Gilroy City
Council to reinstate the Build -Out Schedule and this Agreement as to such Phase. Reinstatement
of the Build -Out Schedule and this Agreement for a Phase shall be within the sole discretion of
the City Council.
(b) IF THE BUILD -OUT SCHEDULE BECOMES NULL AND VOID AS
TO A PHASE PURSUANT TO PARAGRAPH 6(a) ABOVE, AND IS NOT REINSTATED BY
THE GILROY CITY COUNCIL PURSUANT TO PARAGRAPH 6(a) ABOVE, CITY SHALL
HAVE THE RIGHT TO RETAIN THE ENTIRE DEPOSIT MADE BY DEVELOPER
PURSUANT TO PARAGRAPH 3(a) ABOVE TO THE EXTENT NOT YET APPLIED
AGAINST DEVELOPMENT FEES, ALONG WITH ANY INTEREST ACCRUED
THEREON, AS LIQUIDATED DAMAGES, AND NOT AS A FORFEITURE OR PENALTY.
THE PARTIES ACKNOWLEDGE AND AGREE THAT RETENTION OF THE DEPOSIT
MADE PURSUANT TO PARAGRAPH 3(a) TOGETHER WITH ALL INTEREST THEREON
BY THE CITY UPON DEFAULT BY DEVELOPER IS A REASONABLE SUM
CONSIDERING ALL OF THE CIRCUMSTANCES EXISTING ON THE DATE OF THIS
AGREEMENT, INCLUDING, WITHOUT LIMITATION, (i) THE RELATIONSHIP OF THE
SUM TO THE REASONABLY ANTICIPATED RANGE OF HARM TO CITY, AND (ii) THE
ANTICIPATION THAT PROOF OF ACTUAL DAMAGES WOULD BE COSTLY OR
INCONVENIENT. DEVELOPER ACKNOWLEDGES AND AGREES THAT THE RANGE
OF HARM TO CITY RESULTING FROM DEVELOPER'S DEFAULT UNDER THIS
AGREEMENT INCLUDES, WITHOUT LIMITATION, THE COST OF LOST
OPPORTUNITIES TO THE CITY IN TERMS OF DEVELOPMENT FEES AND TAX
REVENUES AND FRUSTRATION OF THE STATED PURPOSES OF THE RDO IN TERMS
OF PUBLIC BENEFIT. IF THE DEPOSIT REFERRED TO IN PARAGRAPH 3(a) ABOVE IS
RETAINED BY CITY PURSUANT TO THIS PARAGRAPH 6(b), DEVELOPER SHALL
NOT BE ENTITLED TO A CREDIT AGAINST DEVELOPMENT FEES FOR ANY
PORTION OF SUCH DEPOSIT RETAINED BY CITY. BY PLACING THEIR INITIALS
BELOW, EACH PARTY SPECIFICALLY CONFIRMS THE ACCURACY OF THE
STATEMENTS MADE ABOVE AND AGREES THAT RETENTION OF THE DEPOSIT
AND INTEREST THEREON AS DESCRIBED IN THIS PARAGRAPH 6(b) AS
LIQUIDATED DAMAGES IS REASONABLE, AND THAT EACH PARTY AGREES -1'0 BE
BOUND BY THE T R OF THIS PARAGRAPH 6(b).
Cf DEVELOPER: C
( Developer acknowledges and agrees that pursuant to this Agreement
above, the Build -Out Schedule may be revoked or modified, or may become null and void, in
whole or in part, without compensation to Developer, notwithstanding that Developer may have
constructed or installed offsite improvements, other infrastructure, and /or oversized
improvements or facilities servicing the Project (collectively "Infrastructure "), or may have paid
'JM4884671
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Item V.D.
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any fees (including without limitation Development Fees); provided, however, that to the extent
then applicable State statute or City code may result in Developer having the right to
reimbursement of all or any portion of Infrastructure costs in the event of future development by
other developers in the area, such right of reimbursement shall not be forfeited; and provided
further that to the extent then applicable State statute or City code may result in Developer being
entitled to a credit of all or any portion of Infrastructure costs against fees chargeable to
Developer in connection with Developer's future projects within the City, such fee credits shall
not be forfeited.
7. Legal Cees. If any legal action or suit is brought by a party hereto against the
other party hereto concerning this Agreement or the rights and duties of either City or Developer
in relation thereto, the prevailing party in such action or dispute, whether by final judgment or
out of court settlement, shall be entitled to have and recover of and from the other party all
reasonable costs and expenses of suit, including reasonable attorneys' fees. In addition, the
prevailing party shall be entitled to recover all reasonable attorneys' fees and costs incurred by
the prevailing party in enforcing any judgment obtained against the other party in such action or
suit. The foregoing provision relating to post judgment attorneys' fees is intended to be
severable from all other provisions of this Agreement, and shall survive and not be deemed
merged into any judgment obtained.
8. Notices. Except as otherwise provided herein, all notices or other
communications required or permitted hereunder shall be in writing, and shall be personally
delivered with written receipt acknowledging delivery or sent by overnight courier, return receipt
requested, and shall be deemed received upon actual receipt. Notices shall be addressed as
follows:
To Developer: Yi'
� C. K,zc7
<4 46 2 Ff CAiW>'O &i4' Sa'f`e az o
Go ;mil -�s� rA 9yozz-
To City: City of Gilroy
7351 Rosanna Street
Gilroy, CA 95020
Attn: City Administrator
9. Assignment. Developer shall have the right to assign all or any part of
Developer's interest in this Agreement to a third party without the prior written consent of City,
provided that City shall be given not less than thirty (30) days prior notice of such assignment,
and further subject to this Paragraph 9 below. Upon an assignment by Developer of its rights
and obligations hereunder, Developer shall remain fully liable to perform each and every
obligation to be performed by Developer pursuant to this Agreement. Notwithstanding the
foregoing, in no event shall the Build -Out Schedule be transferable independently of the Project.
Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the
respective assigns, heirs, successors and legal representatives of each of the parties
Cf�IJH4884671 _ 5-
01 -073104706002
Item IX.C.
Item V.D.
10. Time of Essence. Time is of the essence of each and every term, condition,
obligation and provision hereof.
11. Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall be deemed an original but all of which, together, shall constitute one and the same
instrument.
12. No Obligations to Third Parties. Except as otherwise expressly provided herein,
the execution and delivery of this Agreement shall not be deemed to confer any rights upon, nor
obligate any of the parties hereto, to any person or entity other than the parties hereto.
13. Exhibits. Exhibits "A" and "13" attached hereto are hereby incorporated herein by
this reference.
14. Amendment to this Agreement. The terms of this Agreement may not be
modified or amended except by an instrument in writing executed by each of the parties hereto.
15. Waiver. The waiver or failure to enforce any provision of this Agreement shall
not operate as a waiver of any future breach of any such provision or any other provision hereto.
16. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
17. Severability. If any provision of this Agreement is, or hereinafter is adjudged to
be, for any reason void, unenforceable or invalid, the remainder hereof, or the application of such
provision to persons or circumstances other than those as to which it is void, unenforceable or
invalid, shall not be affected thereby and shall be and remain in full force and effect to the fullest
extent permitted by law.
18. Authority. Each person executing this Agreement represents that the execution of
this Agreement has been duly authorized by the party on whose behalf the person is executing
this Agreement, and that such person is authorized to execute this Agreement on behalf of such
party and to bind such party to this Agreement.
19. Negation of Partnership. The parties specifically acknowledge that the Project is,
except to the extent described in the RDO Application, a private development, that no party is
acting as the agent of the other in any respect hereunder, and that each party is an independent
contracting entity with respect to the tenrls, covenants and conditions contained in this
Agreement. None of the provisions of this Agreement shall be deemed to create a partnership
between or among the parties in the businesses of Developer or the affairs of the City, or
otherwise, nor shall it cause them to be considered joint venturers or members of any .point
enterprise.
20. Not a Public Dedication. Except as may be otherwise designated in the IWO
Application, nothing herein contained shall be deemed to be a gift or dedication of the Project
site, or of the Project, or any portion thereof, to the general public, for the general public, or 56r
only public use or purpose whatsoever, it being the intention and understanding of the parties that
this Agreement be limited strictly to and for the purposes herein expressed; provided, however,
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Item X.C.
Item V.D.
i-(-�
that the foregoing shall not preclude the City from requiring any gift or dedication to the general
public, for the general public, or for any public use in the future in connection with the Project as
permitted by law.
21. Construction of Agreement. The provisions of this Agreement and the Exhibits
hereto shall be construed as a whole according to their common meaning and consistent with the
provisions hereof, in order to achieve the objective and purpose of the parties. The captions
preceding the text of each Paragraph and subparagraph are included only for convenience of
reference and shall be disregarded in the construction and interpretation of this Agreement.
Wherever required by the context, the singular shall include the plural and vice versa, and the
masculine gender shall include the feminine or neuter genders, and vice versa.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.
Dated:
Dated: 1z�9�7
CITY:
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Item IX.C.
Item V.D.
By: —
Name 6hev y' t . AeLv
Title
a
EXHIBIT "Alt
2006 RDO Allocation
Final City COUncll Action
J:Ipproved 9 -I0 -071
Additional allocation in the next 10 -year cycle:
2M
2005
2006
2007
20M
2009
2010
2011
2012
2013
Totals
RDO Limit:
21}t
:199
gas'
166
202
440
248
949
2-4
4-78
2,480
252.
236
236
244
163
pnor allocations
29s
399
289
166
302
202
202
202
203
131
2,289
RDO available
0
0
0
0
0
99
u
3S,
34
39
191
50
34
34
41
32
RD 06 -02 (191)
38
23
23
23
20
127'
Oak Creek
RD 06-04 (39)
12
11
11
5
39
Ramrc%o Meadows
RD 06 -06 (6 1)
13
12
25*
Uvas Gardens
Total allocated
SO
34
34
41
32
191
RDO remaining
0
0
0
0
O
0
0
0
0
0
0
Additional allocation in the next 10 -year cycle:
•• Mol. rillcK'01011 lode bfl the Piril ('u tticil during 1 /#,, 2001 RDO crumpp -h(fr n
Item IX.C.
Item V.D.
2014
2015
2016
2017
2018
2019
2020
1 2021
2022
2023
RD 06 -02
Oak Creek
32
32
RD 06 -06
Uvas Gardens
36
- - -I
RD01.2.i
ta!•'
1 SI"
13S••
•• Mol. rillcK'01011 lode bfl the Piril ('u tticil during 1 /#,, 2001 RDO crumpp -h(fr n
Item IX.C.
Item V.D.
EXHIBIT "B"
RESIDENTIAL DEVELOPMENT ORDINANCE PERFORMANCE AGREEMENT
"Rancho Meadows"
Camino Enterprises Corporation
PHASE YEAR
2006 RDO ALLOCATION
REOUIRED APPLICATION
DATE
Tentative Map application
2009
12 units
submitted to the City by July
—
2009, with a Final Map
a roved by July 2010.
Tentative Map application
2010
11 units
submitted to the City by July
—
2010, with a Final Map
a roved by July 2011.
Tentative Map application
2011
11 units
submitted to the City by July
—
2011, with a Final Map
approved by July 2012.
Tentative Map application
2012
5 units
submitted to the City by July
—
2012, with a Final Map
approved by July 2013.
"TENTATIVE MAP" shall mean:
A City of Gilroy Tentative Map application for not less than the full number of residential
units allocated under the subject development year (the total number of City Council
approved 2006 RDO allocations), in addition to all required application fees.
Item IX.C.
Item V.D.
I, SHAWNA FREELS, City Clerk of the City of Gilroy, do hereby certify that the
attached Resolution No. 2010 -24 is an original resolution, or true and correct copy of a city
resolution, duly adopted by the Council of the City of Gilroy at a special meeting of said Council
held on the 14th day of June, 2010, at which meeting a quorum was present.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Official Seal of
the City of Gilroy this 15th day of June, 2010.
City Clerk of the City of Gilroy
(Seal)