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Meeting Date: April 17, 2018
STAFF REPORT
AGENDA ITEM: Public Hearing (Continued) – Resolution Adopting the Mitigated Negative Declaration and First Reading and Introduction of Ordinance Approving the Third Amendment to the Development Agreement Between the City of Livingston and JEG Livingston Ranches, LLC, Concerning 15.9 Acres Northeast of the Intersection of Robin Avenue and B Street, Livingston, CA
MEETING DATE: April 17, 2018
PREPARED BY: Randy Hatch, Contract City Planner
REVIEWED BY: Jose Antonio Ramirez, City Manager
RECOMMENDATION:
Council Adopt Resolution 2018-_, Adopting the Mitigated Negative Declaration for the Project and Introduce the first reading of Ordinance _, Approving the Third Amendment to the Development Agreement between the City of Livingston and JEG Livingston Ranches, LLC, concerning 15.9 acres northeast of the intersection of Robin Avenue and B Street, Livingston, CA.
BACKGROUND AND DISCUSSION:
The applicant, Joseph Gallo Farms, is proposing to divide the 15.9 acre property into 9 parcels varying from .96 to 2.0 acres in size and 1 remainder parcel currently and proposed to continue to be used as a drainage basin for the project and the commercial area to the east. The existing Joseph Gallo Drive is to continue west providing access to the property linking it to Winton Parkway on the east and Robin Avenue on the west. Two new streets are to provide access to the proposed parcels with Del Rio Avenue to the north and Bella Vista Court to the south. Full improvements of streets, curbs and gutters, sidewalks, sewer lines, and drainage are provided to all parcels. The nine parcels vary in size from 0.96 acres (2 lots) to 2.0 acres (1 lot). The balances of the 6 remaining parcels are roughly 1 acre in size. As noted, the reminder parcel is used as a drainage basin and is 2.01 acres in size (see attached tentative subdivision map). The varying sizes allow for varying users which could include a wide variety of commercial activities and uses appropriate to highway locations as envisioned by the zoning designation.
No specific uses are proposed at this time. This subdivision creates an inventory of finished lots available for future development. It is desirable for the City to contain a selection of finished lots available for development to be able to take advantage of economic development opportunities. The City Municipal Code requires the future uses obtain a Site Plan and Design Review approval first from the Planning Commission and then the City Council.
This project also includes the Third Amendment to the Development Agreement between the City of Livingston and JEG Livingston Ranches, LLC. The Third Amendment extends the term of the original Development Agreement 10 years from the approval date of the Third Amendment. It establishes the list of development fees the Project is subject to and in what manner those fees may increase over time. It establishes the reimbursement credit amount due the developer and clarifies when the deed for well 15 will be executed. It establishes the standards and conditions applicable to the Project and further defines that
the Project is incorporating conditions of Project approval and proposed environmental mitigations as part of the Project. This last feature allows the City to adopt a Mitigated Negative Declaration for the Project in compliance with State CEQA provisions.
On February 13, 2018, the Planning Commission approved the Tentative Subdivision Map and its associated environmental document (Mitigated Negative Declaration) and recommended the City Council approve the Third Amendment to the Development Agreement between the City and JEG Livingston Ranches, LLC. No appeal of the Planning Commission’s decisions was filed.
ENVIRONMENTAL REVIEW:
The division of property for the Project (including the eventual development of the commercial uses it allows) and the Third Amendment to the Development Agreement is a “project” subject to review under the California Environmental Quality Act (CEQA). The Planning Commission considered both the creation of lots (Tentative Subdivision Map) and the Third Amendment to the Development Agreement in their approval and recommendation. Since the approval of the Third Amendment to the Development Agreement is before the City Council, the Council must also consider the environmental document and adopt it before any approval of the Amendment to the Development Agreement.
The applicant retained the services of an environmental consultant to meet CEQA requirements which are administered by the City. Gallo representatives prepared an Initial Study which reviews the “project” per the standards and criteria of CEQA and determines whether the “project” would result in any significant environmental effects, as defined by CEQA. If significant effects are determined to result from the “project”, then the applicant identifies and describes feasible mitigation measures which could be undertaken that would avoid the identified significant effects or reduce them to a level that would be less than significant. This is all identified in the Initial Study and a proposed Mitigated Negative Declaration. The applicant prepared these documents and they were reviewed in detail by City staff and, after City editing, represent the independent analysis and judgment of the City. These documents were circulated to various City departments, other agencies and organizations , and the State Clearinghouse, and made available for public review and comment for 39 days (more than the 30 days listed in the State CEQA Guidelines) starting July 19, 2017, through August 25, 2017. Several comments were received addressing the environmental analysis of the project and other comments were received commenting on the proposed Tentative Subdivision Map or the Third Amendment to the Development Agreement. The environmental comments were from CalTrans (District 10), State Department of Fish and Wildlife, and the San Joaquin Valley Air Pollution Control District. Comments directed to proposed conditions of approval for the Tentative Subdivision Map were received from the City Engineer and the Fire Department. The Resolution Approving the Tentative Subdivision Map approved by the Planning Commission included conditions that addressed these engineering and fire concerns. The environmentally related comments from the three State agencies are addressed separately below.
The CalTrans comment letter requests a Traffic Impact Study (TIS) to determine impacts to State facilities at the State Route 99 interchange with Winton Parkway. A functional equivalent TIS had been prepared by the applicant’s environmental traffic engineering consultants and after City review and revision was included in the environmental document prepared and circulated for review. The author of the CalTrans letter was contacted and apprised of this situation and an additional copy of the traffic analysis was provided. No further comments from CalTrans have been received. City staff did determine that some typographical errors and oversights had been included in the environmental document circulated (though these were not identified or referenced in any comments received). The attached resolution adopting the document and approving a Mitigated Negative Declaration includes corrected pages and mitigations which, in staffs opinion, fully address any significant traffic impacts of the project. The City recognizes that this interchange does experience congestion and, at times, delay. The City is ensuring that this project,
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via the mitigation measures incorporated into the project, is addressing its proportionate share of impacts. Further, the City has required other projects impacting this intersection to contribute proportionately to the solution, as well.
The Department of Fish and Wildlife comment letter identifies Swainson’s hawk as a species potentially impacted by the project and suggests a number of mitigation measures. The mitigation measures incorporated into the project address these concerns as well as potential impacts to three additional species (San Joaquin Kit Fox, American Badger, and Western Burrowing Owl). The San Joaquin Valley Air Pollution Control District (SN APCD) comment letter notes that various potential end users on the lots created may be subject to various rules and regulations of the SN APCD. Mitigations are included in the project such that subsequent development on the lots will be required to contact SN APCD to determine what rules and regulations apply. Further, it is important to note that all subsequent development on these lots require discretionary approval from the City which will ensure that development will be subject to its own CEQA review and mitigations, as needed.
Staff has prepared a Resolution which adopts the Mitigated Negative Declaration, as amended, and incorporates all the proposed Mitigation Measures into the project. The City has also prepared a Mitigation Monitoring/ Reporting Plan which summarizes all potential impacts of the project and the associated mitigation measures. The Mitigation Monitoring/ Reporting Plan also identifies who is responsible for implementing the mitigation measure and who does the follow up with monitoring/ reporting.
ANALYSIS:
The property is vacant except for the 2-acre drainage basin on the remainder parcel which serves future commercial development in this Phase 2 project and also serves existing development in the adjacent Phase 1 commercial development. The property is properly General Planned and Zoned for continued commercial development. The proposal complies with both the Land Use Element Objective 3.IA providing for a well-balanced mix of commercial uses which create and maintain a high quality environment and a fiscally sound community, and with Commercial Land Use Objective 3.3A ensuring for the provision of adequate commercial shopping opportunities and office space locations to meet anticipated needs. The proposal is consistent with Commercial Land Use Policy Id as it pertains to Highway Commercial uses which, due to space requirements, the proximity to the highway, or the distinctive nature of their operation, are not compatible with or are not usually located in other commercial designations.
The anticipated uses that will locate in the Gallo Project area are expected to require larger lot sizes that are not readily available elsewhere in the commercial areas of the City and may need closer access to Highway
99. Further, the zoning of the area of C-3, Highway Service Commercial, requires new development to obtain a Site Plan/ Design Review approval from both the Planning Commission and the City Council to implement Land Use Element 3.1 policies 6 and 12 which require detailed review of new uses to identify and ensure compliance with a variety of issues and standards. The environmental review of this proposal, as discussed above, documents that all potential impacts from this division of property and the eventual commercial development of the lots will have no significant impacts that have not been eliminated or mitigated. The development of these new commercial lots will provide benefits to the City and its residents in terms of addition commercial services available, increased employment opportunities available from the new businesses, and increased tax revenue to the City to maintain and enhance City services.
It should again be noted that the eventual development on these new lots will be subject to review and approval by the City via a Site Plan and Design Review Permit or, if needed, by a Use Permit. The tentative subdivision map provides for all required easements for utilities to serve development on the parcels. The changes to the Project and Mitigations referenced above provides for needed Right-Of-Way and turning restrictions to insure safe turning movements and as efficient traffic flow as possible.
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FISCAL IMPACT:
A positive impact is expected from the new employment opportunities as a result of new businesses locating on these new lots. Additional taxable sales and property taxes would also occur from these new businesses and the project would provide needed street improvements in this area, particularly the completion of Joseph Gallo Drive through to Robin Avenue.
PLANNING COMMISSION ACTIONS AND RECOMMENDATION:
The Planning Commission held a Public Hearing on this request for a Tentative Subdivision Map, Third Amendment to the Development Agreement, and associated environmental review and consideration on February 13, 2018. The Planning Commission is the approving body (unless appealed) for the Tentative Subdivision Map and makes recommendation to the City Council on the Third Amendment to the Development Agreement. The Planning Commission considered the environmental documents prior to its action on the Tentative Subdivision Map and its recommendation to the City Council on the Third Amendment to the Development Agreement. The applicant representatives appeared at the Hearing and presented their request and answered questions from the Commission. A few members of the public were present and asked questions about water and traffic. The City Engineer stated the City has water available for development of the Gallo lots as part of this project. The project is addressing its share of traffic impacts by the traffic improvements required as part of the Tentative Map and as further included as part of the project via the Mitigated Negative Declaration.
The Commission felt that the proposed subdivision and resulting development would be an asset and beneficial to the community. The Commission determined that the lots and improvements, as proposed and as conditioned, complies with all the requirements and standards applicable to this proposal. The Third Amendment to the Development Agreement would facilitate this development and insure it would be consistent with the area and provide needed services to the community. This project will construct needed roadway extensions and improvements. These lots will allow for additional commercial development opportunities in the City. The Planning Commission recommends the City Council adopt Resolution 2018-_, adopting the Mitigated Negative Declaration with its Mitigation Monitoring I Reporting Program; and introduce and finally approve Ordinance approving the Third Amendment to the Development Agreement, based on the Findings contained in the attached resolution and within the Ordinance itself.
ATTACHMENTS:
1. Resolution 2018-_, Adopting the Mitigated Negative Declaration Exhibit “A”, Initial Study /Mitigated Negative Declaration –
Corrected Pages 3-61 through 3-64 of the Initial Study, Initial Study Section 4.0 – Mitigation Measures (summary)
Exhibit “B”, Mitigation Monitoring/ Reporting Program
2. Ordinance No. , Introducing Adoption of the Third Amendment to the Development Agreement, Third Amendment to Development Agreement between the City of Livingston and JEG
Livingston Ranches, LLC, including Exhibits “A” – “E”
3. Project Location and Zoning Map
4. Tentative Subdivision Map for the Gallo Project
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RESOLUTION 2018-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LIVINGSTON ADOPTING THE MITIGATED NEGATIVE DECLARATION AND ADOPTING A
MITIGATION MONITORING/REPORTING PROGRAM FOR THE THIRD AMENDMENT TO THE DEVELOPMENT AGREEMENT BETWEEN THE CITY OF LIVINGSTON
AND JEG LIVINGSTON RANCHES, LLC (TM 2017-01)
WHEREAS, pursuant to Livingston Municipal Code (“LMC”) sections 5-6-3 and 6-6, JEG Livingston Ranches LLC, applicant and owner, has applied for a Tentative Subdivision Map and a Third Amendment to an existing Development Agreement to create nine parcels with a remainder on 15.9 acres located northeast of the intersection of Robin Avenue and B Street, (APN 022-010-015), in the City of Livingston; and
WHEREAS, these developments are deemed a Project within the meaning of the California Environmental Quality Act (CEQA); and
WHEREAS, the City of Livingston has caused to be prepared an Initial Study/Mitigated Negative Declaration (IS/MND) addressing the potential environmental effects of the Gallo Tentative Map Project in accordance with the requirements of CEQA, which is attached hereto as Exhibit “A” and is hereby incorporated by reference; and
WHEREAS, a Notice of Completion and Environmental Document Transmittal was received by the State Clearinghouse on July 19, 2017; and
WHEREAS, a Notice of Intent to adopt a MND was filed at the Merced County Clerk’s office on July 25, 2017; and
WHEREAS, the IS/MND has been circulated for public and agency review and comment in accordance with the requirements of CEQA from July 19, 2017, through August 25, 2017, and comments were received; and
WHEREAS, at the conclusion of the public review and comment period, a limited number of typographical errors and omissions in the IS/MND have been discovered and corrected pages 3-61 through 3-64 (attached) have been prepared and are included in the document as a Final Initial Study/ Mitigated Negative Declaration (FIS/MND); and
WHEREAS, the City Planning Commission has held a public hearing on the proposed project on February 13, 2018, which was properly noticed by posting, a newspaper ad, and a mailing to adjacent properties within 300 feet of the site; and
WHERAS, the Planning Commission adopted Resolution 2018-01, adopting the Mitigated Negative Declaration and Mitigation Monitoring/ Reporting Program for their approval of the Tentative Subdivision Map and recommended to the City Council approval of the Third Amendment to the Gallo Development Agreement; and
WHEREAS, the City Council held a continued public hearing on the proposed project on April 17, 2018, which was properly noticed by posting, a newspaper ad, and a mailing to adjacent properties within 300 feet of the site; and
WHEREAS, the City Council has reviewed and independently considered the analysis and conclusions of the FIS/MND; and
WHEREAS, the City Council has reviewed and considered any and all comments on the FIS/MND made at the public hearing and amended the FIS/MND, as needed; and
WHEREAS, the City has prepared a Mitigation Monitoring/Reporting Program for the Gallo Tentative Map project attached hereto as Exhibit “B” and is hereby incorporated by reference.
NOW, THEREFORE, BE IT RESOLVED that:
1. The Livingston City Council finds, based on the whole record before it, including, but not limited to the FIS/MND, the comments received on the FIS/MND, the staff repot is received, and all other oral or written evidence submitted to the City Council that there is no substantial evidence that the Project will have a significant effect on the environment and further finds that the FIS/MND reflects the City Council’s independent judgment and analysis.
2. The Planning Department of the City of Livingston is the custodian of the documents and other materials that constitute the record of proceedings upon which this decision is made.
3. The Livingston City Council hereby adopts Resolution 2018-_, which adopts the FIS/MND for the subject project as contained within Exhibit “A” attached hereto with Table 1-1 (summarizing the impacts and mitigation measures) also attached.
4. The Livingston City Council hereby adopts the Mitigation monitoring/ Reporting Program for the project as contained within City Council Resolution 2018-_, Exhibit “B”.
Passed and adopted this 17fu day of April, 2018, by the following vote: AYES:
NOES:
ABSENT:
ABSTAIN:
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Jim Soria, Mayor
of the City of Livingston
ATTEST:
I hereby certify that the foregoing resolution was regularly introduced, passed and adopted at a regular meeting of the City Council of the City of Livingston this 17th day of April, 2018.
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Antonio Silva, City Clerk of the City of Livingston
ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF LIVINGSTON APPROVING THE THIRD AMENDMENT TO THE DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY AND JEG LIVINGSTON RANCHES, LLC
The City Council of the City of Livingston does ordain as follows:
Section 1. Purpose and Declarations.
WHEREAS, in order to strengthen the public planning process, encourage private participation in comprehensive planning and reduce the economic risk of development, the Legislature of the State of California adopted Section 65864, et seq., of the Government Code (the “Development Agreement Statute”), authorizing the City, and any person having a legal or equitable interest in the real property, to enter into a development agreement and establish certain development rights in the property, which is the subject of the development project application. Pursuant to Government Code section 65868, Development Agreements may be amended by mutual assent of the parties; and
WHEREAS, on December 1, 1997, City and Joseph Gallo (hereinafter “Gallo”), as the developer of real property located within the City of Livingston, entered into a Development Agreement regarding certain real property (the “1997 Development Agreement”); and
WHEREAS, Gallo has developed the subject property (“1997 Property”), pursuant to the 1997 Development Agreement; and
WHEREAS, JEG Livingston Ranches, LLC, a California limited liability company (“Developer”) assumed all rights and responsibilities under the 1997 Development Agreement from Gallo; and
WHEREAS, on June 19, 2001, the 1997 Development Agreement was amended (the “First Amendment”) to add an additional project and specific conditions relating to the fees applicable to the new project; and
WHEREAS, because the project affected by the amendments has been completed and is no longer bound by or subject to the 1997 Development Agreement or its amendments, the proposed Third Amendment, attached hereto as Exhibit “A,” applies solely to the 1997 Development Agreement and rescinds the First and Second Amendments to it; and
WHEREAS, Developer also acquired a 15.9 acre parcel located adjacent to the 1997 Property and within the City limits which Developer intends to subdivide into nine (9) parcels varying from .96 to
2.0 acres in size and one (1) remainder parcel (“2017 Property”); and
WHEREAS, the 2017 Property was not part of the 1997 Development Agreement; however, Developer desires to develop and market the 2017 Property pursuant to the same conditions/requirements set forth in the 1997 Development Agreement, except as those conditions and requirements are amended by the proposed Third Amendment; and
WHEREAS, the 1997 Development Agreement expired on December 1, 2012; and
WHEREAS, the City and Developer propose to reinstate and extend the 1997 Development Agreement by and through the proposed Third Amendment; and
WHEREAS, in compliance with the California Environmental Quality Act (CEQA) and the CEQA Guidelines, an Initial Study and draft Mitigated Negative Declaration was prepared to identify the potential environmental effects of the Third Amendment to the Development Agreement. The Initial Study and draft Mitigated Negative Declaration is a separately bound document (hereafter “MND”), incorporated herein by reference and available for review during normal business hours at the City of Livingston Planning Department, 1416 C Street, Livingston, CA; and
WHEREAS, on February 13, 2018, the Planning Commission of the City of Livingston held a duly noticed public hearing to consider the proposed Third Amendment to the Development Agreement, received a report from City staff, public comment and other oral and written evidence, which evidence is incorporated herein by reference; and
WHEREAS, the Planning Commission adopted Resolutions 2018-01 and 2018-03 which resolutions recommended that the City Council approve the MND and the Third Amendment to the Development Agreement, and which are incorporated herein by reference; and
WHEREAS, on April 17, 2018, the City Council considered the draft MND and the Third Amendment to the Development Agreement at a noticed public hearing at which time all interested parties had the opportunity to be heard; and
WHEREAS, the City Council considered a staff report that described and analyzed the draft MND and the Third Amendment to the Development Agreement, which report is incorporated herein by reference; and
WHEREAS, on April 17, 2018, the City Council considered the draft MND including all comments received thereon, the staff report, the Planning Commission recommendation on the Third Amendment to the Development Agreement, and public testimony. Following the public hearing, the City Council adopted Resolution 2018-_, adopting the MND, and introduced by first reading of this Ordinance; and
Section 2. Findings
The City Council hereby finds as follows based on the recitals above, staff rep01ts and other information contained in the Planning Department files for the Third Amendment to the Development Agreement which are incorporated herein by reference and available for review during normal business hours at the City of Livingston Planning Department, 1416 C Street, Livingston, CA.
1. All the recitals above are true and correct and incorporated herein by reference.
2. The City Council received and considered the Planning Commission recommendation to approve the Third Amendment to the Development Agreement at a duly noticed public hearing.
3. The Third Amendment to the Development Agreement is consistent with the goals, objectives, and policies of the City’s General Plan.
4. The Third Amendment to the Development Agreement is compatible with the uses authorized in, and the regulations prescribed for, the land use district in which the real property is located.
5. The Third Amendment to the Development Agreement will not be detrimental to the public health, safety, or welfare of the community.
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6. The Third Amendment to the Development Agreement will promote the public convenience, general welfare, and good land use practices, and is in the best interest of the community.
7. The Third Amendment to the Development Agreement will not adversely affect the orderly development of property or the preservation of property values.
8. The Third Amendment to the Development Agreement will promote and encourage the development of the land by providing a greater degree ofrequisite certainty.
9. The environmental impacts of the Third Amendment to the Development Agreement and its enacting ordinance were fully evaluated in the adopted Mitigated Negative Declaration and all impacts were mitigated to a less than significant level as further set forth in Resolution No. 2018-_.
Section 3. Approval.
Based on the recitals and findings above and considering the entire record of proceedings, the City Council hereby approves the Third Amendment to the Development Agreement, attached to this Ordinance and incorporated herein by reference as Exhibit A, and authorizes the City Manager to sign the Development Agreement Amendment after the effective date of this Ordinance.
Section 4. Effective Date and Publication. This Ordinance shall be published once within fifteen (15) days after its adoption in a newspaper of general circulation in the City of Livingston. This Ordinance shall take effect thirty (30) days after adoption and the title thereof shall be published once prior to adoption.
Section 5. Severability. If any section, subsection, subdivision, paragraph, sentence, clause or phrase of the Ordinance is for any reason held to be unconstitutional, invalid, or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this Ordinance or any part hereof. The City Council hereby declares that it would have passed each section of the Ordinance irrespective of the fact that one or more of them would be declared unconstitutional or invalid. To this end, the provisions of the Ordinance are declared to be severable.
Introduced:
Passed and Adopted:
JIM SORIA, Mayor
of the City of Livingston
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ATTEST:
State of California ) County of Merced ) City of Livingston )
I hereby certify that the foregoing Ordinance was duly introduced at a Regular Meeting of the City
Council of the City of Livingston on the
day of
, 2018, and was passed and adopted at a
Regular Meeting of the City Council of the City of Livingston this following vote:
AYES:
NOES:
ABSENT:
day of
, 2018, by the
ANTONIO SILVA, City Clerk of the City of Livingston
2915363.1
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OFFICIAL BUSINESS
Document entitled to free recording Government Code Section 6103
![clip_image001[4]](https://thegardeningsnail2.wordpress.com/wp-content/uploads/2018/04/clip_image00142.png "clip_image001[4]"){kind=small} |
(SPACE ABOVE THIS LINE RESERVED FOR RECORDER’S USE)
THIRD AMENDMENT TO DEVELOPMENT AGREEMENT BETWEEN THE CITY OF LIVINGSTON AND
JEG LIVINGSTON RANCHES, LLC
This Third Amendment to the Development Agreement (this “Third Amendment”), is
made and entered into on the day of ,201_, by and between the City
of Livingston, a California municipal corporation (“City”), and JEG Livingston Ranches, LLC, a California limited liability company (“Developer”). City and Developer are hereinafter collectively referred to as the “Parties,” and singularly as a “Party.”
RECITALS
A. In order to strengthen the public planning process, encourage private participation in comprehensive planning and reduce the economic risk of development, the Legislature of the State of California adopted Section 65864, et seq., of the Government Code (the “Development Agreement Statute”), authorizing a city, and any person having a legal or equitable interest in real property, to enter into a Development Agreement and establish certain development rights in the property, which is the subject of the development project application. Pursuant to Government Code section 65868, Development Agreements may be amended by mutual assent of the parties.
B. On December 1, 1997, the City and Joseph Gallo (hereinafter “Gallo”), as the developer of real property located within the City of Livingston, entered into a Development Agreement regarding certain real property (the “1997 Development Agreement”). Gallo has developed the subject property (“1997 Property”), pursuant to the 1997 Development Agreement.
C. Developer assumed all rights and responsibilities under the 1997 Development Agreement from Gallo.
D. On April 19, 2005, the 1997 Development Agreement was amended (the “First Amendment”) to add an additional project and specific conditions relating to the fees applicable to the new project.
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7. Outstanding Matters. City and Developer agree that it is in the best interest of the Parties to use this Third Amendment to resolve any unresolved or outstanding issues of performance and reimbursement between the Parties applicable to the 1997 Development Agreement, the First Amendment and the Second Amendment.
A. Reimbursement Due. The Parties agree that the total amount due to Developer as Reimbursement under the 1997 Development Agreement, including Sections VIII
(A) and VIII (B) of the 1997 Development Agreement for any property and for any and all improvements and/or oversizing of improvements, is Two Hundred Sixteen Thousand Four Hundred Dollars ($216,400.00). The property and improvements for which such reimbursement is due and the basis of the total amount due is set forth in Exhibit D to this Third Amendment.
B. Reimbursement as Credit. The Parties agree that Developer shall have the option to receive credit for the total amount due under Section 7(A) in lieu of reimbursement by the City. Credits may be used for any development impact fees or mitigation imposed on the 2017 Property by this Third Amendment.
C. Well 15. Within thirty (30) days of the date of this Third Amendment, Developer shall execute and record all required documents irrevocably granting title to the
0.037 acre parcel, as described in Exhibit E, for well 15 and appurtenant uses to City.
D. Area of Benefit. Subsection C, “Area of Benefit,” of Section VIII of the 1997 Development Agreement is hereby deleted in its entirety and no area of benefit shall be established, and no reimbursement shall be due to Developer except as provided in Section 7(A) of this Third Amendment.
8. Third Amendment Standards and Conditions and Vested Elements. Section IV of the 1997 Development Agreement “Vested Elements” is deleted in its entirety and Section VI11 of the 1997 Development Agreement is amended to add Subsection (E), titled “2017 STANDARDS AND CONDITIONS,” to read as follows:
“E. 2017 STANDARDS AND CONDITIONS
Developer shall construct the public improvements (“Public Improvements”) and provide the public services as set forth in this Section. Additionally, Developer shall satisfy the conditions and requirements set forth in this Section within the time period(s) specified herein. The list for Public Improvements herein sets forth the general scope of work only and does not include specific requirements and details necessary to adequately serve the proposed commercial subdivision. A detailed set of improvements will be determined with subsequent project approvals.
(1) All minimum conditions of subdivision approval in the City’s Subdivision Ordinance are required and included herein by reference.
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(2) The final map shall comply with all provisions of the Subdivision Map Act.
(3) A final map shall be prepared by a California Licensed land Surveyor or Registered Civil Engineer and be filed for City Council approval within twenty-four (24) months from the City’s approval of the parcel map by the Planning Commission.
(4) Developer shall apply for a City of Livingston Site Plan/Design Review (“SPDR”) for approval by the City Engineer and City Planner and as required by the City’s Ordinance. An SPDR shall be required for the development of grouped or individual parcels.
(5) Prior to approval of the Tentative Map, Developer shall prepare and submit all required CEQA studies as determined by the City Planner and pursuant to the Third Amendment of the 1997 Development Agreement.
(6) Prior to approval of the Final Map and recording thereof, all necessary dedications for rights-of-way and easements shall be provided to the City, public utility companies, and other affected agencies.
(7) Prior to approval of the Final Map, improvement plans for streets, utilities, drainage facilities, survey monuments, grading and erosion control shall be submitted for the City Engineer’s approval.
(8) Public improvements shall conform to the latest edition of the City’s Improvement Standards and any modifications thereto approved by the City Engineer in place at the time of construction. Improvements shall conform to other City adopted documents including the General Plan and Utility Master Plans. The work shall comply with all applicable State, Federal, and local laws and regulations.
(9) A soils report prepared by a California Registered Geotechnical Engineer shall be submitted to the City Engineer as part of the improvement plans. The soils report shall include recommendations for the structural sections for streets, excavation, compaction, clearing, and grubbing requirements.
(10) Prior to approval of the improvement plans, Developer shall prepare a Storm Water Pollution Prevention Plan (“SWPPP”) pursuant to the California Water Resources Control Board Order No. 2009-009-DWQ, NPDES No. CA000002 and the City of Livingston’s MSF Phase II Permit requirements for construction activities. The filing and approval of a SWPPP and amendments thereto shall be required for Project or development of individual parcels.
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(11) Prior to approval of the improvement plans, Developer shall prepare and submit to the City of Livingston volumetric sizing calculations, low development impact (“LID”) measures, operation and maintenance plan (“O&M”), and statement of responsibility for storm water management in accordance with the City of Livingston’s Post-construction Standard Plan and pursuant to the City’s MS4 Phase II Permit requirements.
(12) Prior to approval of the improvement plans, Developer shall prepare a Dust Control Plan (“DCP”) and file the DCP with the San Joaquin Valley Air Pollution Control District for approval of construction activities for the Project if required. The filing and approval of a DCP, and amendments thereto, shall be required for Project or development of individual parcels as required by said agency.
(13) Prior to the issuance of grading and encroachment permits, Developer shall pay the permit fee, plan check and inspection fees, and furnish improvement securities pursuant to the City’s improvement standards, City Municipal Code, and Ordinances. Improvement securities will be in accordance with standard set for in the California Subdivision Map Act and the City’s Municipal Code.
(14) Prior to the issuance of a building permit, Developer shall pay all development impact fees as specified in the Third Amendment to the 1997 Development Agreement and pursuant to the City’s Municipal Code, Ordinances, and Resolutions. The fee assessment shall include all applicable fees for Municipal Facilities, Police, Fire Protection, Streets and Bridges, Water, Domestic Wastewater, Storm Drainage, General Plan Update, and Parks. Fees shall be based on building permit applications for the Project or development of individual parcels and paid at the time of the issuance of each permit.
(15) The subdivision parcels shall be annexed to the City’s Landscape and Lighting Maintenance District, Benefit Assessment District and Community Facilities District for all required and applicable assessments, or, at the City’s discretion, Developer will agree to form a new landscape and lighting maintenance district, benefit assessment district and/or community facilities district for the parcels.
(16) Developer shall construct or shall cause the construction of a perimeter CMU-block wall on “B” Street and Robin Avenue along the subdivision street frontages. The proposed block wall shall match existing perimeter walls or meet City standards per the City Engineer and City Planner. The construction of the perimeter wall shall be required for project or development of individual parcels.
(17) Developer shall coordinate and obtain all required approvals from the County of Merced, Merced Irrigation District, and any other stakeholders affected by the work.
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Public Improvements: Streets
(18) Dedicate rights-of-way and public utility/pedestrian easements for Del Rio Avenue, Joseph Gallo Drive extension, and Bella Vista Court, and construct street improvements pursuant to Commercial Collector standards or as approved by the City Engineer. Roadway improvements shall include pavement section, curb, gutter, sidewalk, curb ramps, driveways, cul-de-sacs, street lighting, signage, and striping.
(19) Dedicate rights-of-way and easements pursuant to Arterial standards and as required for street improvements and public utilities along the north side of “B” Street. Developer shall install curb and gutter and asphalt patch for “B” Street prior to the issuance of any building permit for the Project under this Third Amendment/construction within the 2017 Property.
(20) Dedicate rights of way and easements pursuant to Collector standards and as required for street improvements and public utilities along the east side of Robin Avenue. Developer shall install curb and gutter and asphalt patch for Robin Avenue prior to the issuance of any building permit for the Project under this Third Amendment/construction within the 2017 Property.
(21) Install traffic control improvements for the intersection of “B” Street and Robin Avenue such as signage, stop signs, pavement markings and directional lines as necessary and approved by the City Engineer. Provide improvements for this intersection as required, based on the traffic study, to accommodate existing traffic plus Project.
(22) Construct the intersection of Joseph Gallo Drive and Robin Avenue as required, based on the traffic study, to handle existing traffic plus Project. Traffic control improvements may consist of stop signs, roundabouts, or traffic signals.
(23) Extend eastbound left Turn Pocket on Joseph Gallo Drive at Winton Parkway from eighty (80) to two hundred (200) feet in accordance with the Traffic Impact Analysis Report for the Gallo Commercial Center dated June 13, 2017 by JLB Traffic Engineering, Inc.
(24) Extend westbound right turn pocket on “B” Street at Winton Parkway from eighty (80) to one hundred (100) feet in accordance with the Traffic Impact Analysis Report for the Gallo Commercial Center dated June 13, 2017 by JLB Traffic Engineering, Inc.
(25) Driveway approaches for parcels 1, 6, 7 and 9 shall be located no less than thirty (30) feet from street intersections in accordance with the Traffic Impact Analysis Report for the Gallo Commercial Center dated June 13, 2017 by JLB Traffic Engineering, Inc.
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(26) Street parking on Bella Vista Court shall be restricted to accommodate the proposed non-standard street width.
(27) Driveway approaches shall be prohibited on “B” Street and Robin Avenue for project or development of individual parcels.
(28) Construct temporary turnaround on Del Rio Avenue as approved by the City Engineer and Merced County Fire Marshal. Developer shall have proper access to construct turnaround on private property and shall provide a copy of the owner approved access agreement to the City of Livingston.
Public Improvements: Water System
(29) Construct water mains, fire hydrants, blowoffs, sampling stations, and lateral connections as necessary to serve each lot.
(30) Lateral services for domestic, irrigation, and fire protection shall include shutoff valves, corporation stops, water meters, backflow preventers, post indicator valves, and fire department connections as applicable. These items will be installed during the individual lot improvements and through the building permit process.
(31) Construct minimum eight (8) inch water mains on City streets and looped, as needed, to support the proposed development plan and approved by the City Engineer. Pipe sizes greater than the minimum shall be determined from hydraulic calculations and/or modeling studies, and shall be consistent with the existing network grid, or as recommended from the Water Master Plan.
(32) Construct and/or extend water mains on Joseph Gallo Drive, Del Rio Avenue, Bella Vista Court, “B” Street, and Robin Avenue. Current layout for parcels and services for Project do not warrant a water main extension or loop along Robin Avenue.
(33) Connect to existing system at “B” Street and Joseph Gallo
Drive.
Public Improvements: Sewer System
(34) Construct sewer lines, lift stations, manholes, and lateral connections as necessary to serve each lot.
(35) Lateral connections shall include cleanouts, pre-treatment systems (i.e. oil/sand separator, grease trap, etc.), and backwater valves, as applicable, to the occupancy of each lot and determined at the building permit stage.
(36) Construct minimum eight (8) inch sewer mains on City streets unless approved otherwise by the City Engineer. Pipe sizes
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greater than the minimum shall be determined from hydraulic calculations and/or modeling studies, and shall be consistent with the existing network grid, or as recommended from the Sewer Master Plan.
(37) Construct and/or extend sewer mains on Joseph Gallo Drive, Del Rio Avenue, Robin Avenue, and Bella Vista Court. Current layout for parcels and services for Project do not warrant a sewer main extension along Robin Avenue.
(38) Connect to existing system at “B” Street and/or Joseph Gallo Drive as approved by the City Engineer. Convey sanitary wastewater via a gravity flow system unless a lift station is required at points of connection due to topography restrictions.
(39) Extend sewer main on Bella Vista Court to point of connection on “B” Street within a utility easement appropriately sized for construction and maintenance access.
Public Improvements: Storm Drainage
(40) Construct storm drain lines, manholes, drain inlets, catch basins, detention basins, outfalls, lift stations, and lateral connections, as necessary, to serve each lot and the public rights-of-way.
(41) Construct storm sewers on City streets, as determined from hydraulic calculations and/or modeling studies, and shall be consistent with the existing network grid, or as recommended from the Storm Drain Master Plan.
(42) All runoff from City streets shall be contained within the public rights-of-way or easements and disposed of pursuant to existing or future regional storm drainage facilities or to other facilities agreeable to the City and Developer.
(43) On-site runoff from development properties shall be conveyed to the City’s storm drain facilities via underground pipes.
(44) Developer shall locate the existing storm drain line traversing proposed parcels within a City-approved easement.
(45) Dispose of all on-site and street runoff to the existing storm basin on the northeast corner of “B” Street and Robin Avenue (Gallo basin). Verify the basin has excess capacity to handle additional runoff from the Project. Provide instrument for dedication of basin capacity to the City and rights for encroachment of the basin facility by the City.
(46) Improvements to the existing Gallo basin as a result of the new configuration requirements and the increased runoff volumes shall comply with the City’s Improvement Standards and Ordinance No. 625,
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pursuant to Phase II MS4 regulations from the California Water Resources Control Board effective July 1, 2013 (Permit Order No. 2013-0001-DWQ).
(47) Developer shall master plan the bypass facilities (i.e., dedicate easement, construct stub outs, etc.) for construction by others to convey storm runoff from the basin to the future regional storm drainage facilities or to other facilities agreeable to the City, and Developer when required for development of the remainder parcels overlying the existing basin.
Public Improvements: Landscaping
(48) Construct landscaping and irrigation facilities for raised medians or parkway strips as applicable. Landscaping of individual parcels shall be associated and completed at the time of development of each individual parcel.
Public Improvements: Utility Services
(49) Provide utility services to each lot including electric power, gas, telephone, and cable television.
(50) Construct utilities underground within the street rights-of-way or easements.
9. Vested Elements.
Except where provided otherwise in this Third Amendment, the development of the 2017 Property shall be subject to those regulations affecting or relating to the height or size of buildings, building setback requirements, lot coverage limitations, architectural and landscaping requirements and criteria, permitted use regulations, standards, and requirements relating to permitted uses, densities, and intensities of use (collectively “Vested Elements”) that govern and affect the 2017 Property as of the effective date of this Third Amendment.
There shall be no change, modification, addition to, or amendment of any of the Vested Elements set forth above during the term of this Third Amendment without the mutual consent of the City and the Developer.
10. Community Facilities District for Improvements.
A. Community Facilities District Formation – Financing. The City acknowledges that Landowner may cause to be formed a Community Facilities District (“CFD”) pursuant to the provisions of Section 53311 et seq. of the Government Code for the purpose of financing the acquisition or construction of a portion of the Public Improvements described in Section 8.
B. Issuance of Bonds. The City and Landowner agree that, with the consent of Landowner, and to the extent permitted by law, The City and Landowner shall use
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their best efforts to cause bonds to be issued in amounts sufficient to achieve the purposes of this Section.
C. Payment Prior to Issuance of Bonds. Nothing in this Agreement shall be construed to preclude the payment by an owner of any of the parcels to be included within the CFO of a cash amount equivalent to its proportionate share of costs for the Public Improvements, or any portion thereof, prior to the issuance of bonds.
D. Private Financing. Nothing in this Agreement shall be construed to limit Landowners option to install the Public Improvements through the use of private financing.
11. Service District for Maintenance.
A. Formation. Consent, Waiver and Special Benefit. Developer must cooperate in formation or annexation to, one or more financing mechanism or assessment district for maintenance purposes, as chosen by the City (herein the “Services District”), and consents herewith to the levy of such special taxes as are necessary to fund the maintenance obligations described below. No building permit shall be issued until the formation of, and inclusion of the 2017 Property in the Services District. For purposes of Article XIIID of the California Constitution, Developer acknowledges hereby that all the services described herein to be provided by the Services District will provide a “special benefit” to the 2017 Property, as defined by said Article, and that the foregoing support and consent shall apply as to any claim that any portion of the services supported by the special tax does not provide special benefit to the 2017 Property. The Services District shall:
(1) Provide the City assured funding for the ongoing maintenance and operation of public facilities and all improvements required herein or in any of the project approvals, whether such facilities and improvements are located within or outside of the boundaries of the Project, including: public roads, public alleys and associated frontage improvements such as curb, gutter and sidewalks, intersection signals, and street signs; road special features (e.g. speed bumps, textured or painted surfaces, modified crosswalks, etc.); project monument signs; all public landscaping, including street frontage landscaping and road medians; streetlights within the 2017 Property and upon the 2017 Property frontages and statuary, fountains or ornamental structures.
(2) Cause to be established appropriate funding mechanisms, as determined appropriate by the City to fund the ongoing maintenance of drainage facilities within the Project consistent with any of the project approvals.
(3) Cause to be established appropriate funding mechanisms, as determined appropriate by the City, to maintain all public open space areas within the 2017 Property, other than improved park sites, including without limitation, maintaining conducting weed abatement and providing fire prevention to the satisfaction of the Livingston Fire Department within such open space areas. Such fire prevention efforts may include flail mowing from adjacent private property lines into such open space areas and other such vegetation management efforts as deemed necessary by the Livingston Fire Department.
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“CITY”
CITY OF LIVINGSTON,
a municipal corporation
“DEVELOPER”
JEG LIVINGSTON RANCHES, LLC,
a California limited liability company
By: _
Name:———–
Its:
By: _
Name: _ Its: ———-
ATTEST:
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City Clerk
APPROVED AS TO FORM:
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Jose M. Sanchez City Attorney
Exhibit A: legal Description of 2017 Property Exhibit B: Depiction of 2017 Property
Exhibit C: Schedule of Fees Payable under the Third Amendment Exhibit D: Reimbursement Due for Gallo Project
Exhibit E: Well 15 and Appurtenant Area Description
2333944.21
EXHIBIT ‘”A11
Legal Description
For APNIParcel ID!!l: 022-010-015-000
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF LIVINGSTON, COUNTY OF MERCED, STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS:
ALL THAT CERTAIN REAL PROPERTY IDENTIFIED AS “ADJUSTED PARCEL 2” IN THAT CERTAIN CERTIFICATE OF COMPLIANCE/ LOT LINE ADJUSTMENT RECORDED SEPTEMBER 20,2007 AS DOCUMENT NO. 2007-051967 AND AMENDED BY CERTIFICATE OF COMPLIANCE RECORDED MARCH 3, 2008 AS INSTRUMENT NO. 2008-010044, MERCED COUNTY RECORDS, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEING A PORTION OF LOT 4 OF SUBDIVISION NO.3 OF THE LIVINGSTON LAND AND COLONY CO., RECORDED IN VOLUME 3 OF SUBDIVISION MAPS AT PAGE 58, MERCED COUNTY RECORDS, LYING IN THE NORTHWEST QUARTER OF SECTION 26, TOWNSHIP 6 SOUTH, RANGE 11 EAST, MOUNT DIABLO BASE. AND MERIDIAN, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE NORTH LINE OF “B” STREET (FORMERLY VINEWOOD AVENUE) AND THE EAST LINE OF ROBIN AVENUE; THENCE NORTH 89° 31′ 55″ EAST ALONG SAID NORTH LINE, A DISTANCE OF 526.69 FEET TO THE SOUTHWEST CORNER OF THE REMAINDER PARCEL OF MAP ENTITLED _”PARCEL MAP FOR JOSEPH E. GALLO”, RECORDED MARCH 24, 1999 IN VOLUME 85 OF PARCEL MAPS, PAGES 10AND 11, MERCED COUNTY RECORDS; THENCE NORTH 01° 07′ 23″ EAST, 1,308.97 FEET ALONG THE WEST LINE OF SAID REMAINDER PARCEL AND THE PROJECTION THEREOF TO A POINT IN THE NORTH LINE OF SAID LOT 4; THENCE NORTH 89° 40′ 35″ WEST, 526.82 FEET ALONG SAID NORTH LINE OF LOT 4 TO A POINT ON THE EAST LINE OF SAID ROBIN AVENUE, SAID POINT BEING 20 FEET EAST OF THE NORTHWEST CORNER OF SAID LOT 4; THENCE SOUTH 01° 06′ 21″ WEST ALONG THE EAST LINE OF SAID ROBIN AVENUE, 1,316.24 FEET, SAID LINE ALSO BEING PARALLEL AND 20 FEET EAST OF THE WEST LINE OF SAID LOT 4, TO THE TRUE POINT OF BEGINNING.
EXCEPTING THEREFROM THE INTEREST OF THE COUNTY OF MERCED AS TO THE WEST 20 FEET, AS CONVEYED BY DOCUMENT RECORDED OCTOBER 3, 1950 IN BOOK 1008 AT PAGE 86, OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM ONE-HALF OF ALL OIL, GAS, PETROLEUM, NAPTHA AND OTHER HYDROCARBON SUBSTANCES AND MINERALS OF WHATSOEVER KIND AND NATURE IN, UPON, OR BENEATH THE PROPERTY HEREINABOVE DESCRIBED, AS EXCEPTED AND RESERVED BY RALPH H. FRAZER, ET UX., IN THAT CERTAIN DEED RECORDED APRIL 7, 1955 AS DOCUMENT NO. 6149 IN BOOK 1201 AT PAGE 356, OFFICIAL RECORDS.
Reimbursements
Well 15 Site
Tentative Subdivision Site
Tentative Subdivision Map
The Gardening Snail 2 