HomeMy WebLinkAboutR-10968 approving the final map for Tract 3089 Phase 1 Avila Ranch (175 Venture Drive, SBDV-2042-2015)RESOLUTION NO. 10968 (2018 SERIES)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN LUIS
OBISPO, CALIFORNIA, APPROVING THE FINAL MAP FOR TRACT 3089
PHASE 1 AVILA RANCH (175 VENTURE DRIVE, SBDV-2042-2015)
WHEREAS, the City Council made certain findings concerning the vesting tentative map for
Tract 3089, as prescribed in Resolution No. 10832 (2017 Series); and
WHEREAS, the City Council entered into a Development Agreement with the Subdivider
of Tract 3089 with Ordinance No. 1639 (2017 Series); and
WHEREAS, the Community Development Director approved minor corrections to the
tentative map as allowed by the City Municipal Code and California Government Code; and
WHEREAS, the subdivider has requested that the Council approve the final map for
Tract 3089 Phase 1; and
WHEREAS, there are certain lots that will be offered to the City in fee for public purposes;
and
WHEREAS, there are certain wetland areas within Tract 3089 that need to be relocated and
preserved; and
WHEREAS, Tract 3089 is required to preserve at least 50 acres of on-site open space and/or
agricultural land and preserve at least 50 acres of offsite open space and/or agricultural land by the
recordation of deed restrictions, but only a portion of that is required to be preserved with Phase 1;
and
WHEREAS, the subdivider will be constructing certain improvements that are eligible for
fee credits per the project's development approval documents and the City's AB1600 fee program;
and
WHEREAS, the subdivider has agreed to offer an easement for the ultimate widening of
Buckley Road along the Tract 3089 frontage if needed for a City, County or development project; and
WHEREAS, portions of Buckley Road and Vachell Lane are located within the County and
could continue to be maintained by the County, but the pedestrian and bicycle facilities may need to
be maintained by the City; and
WHEREAS, the subdivider will submit appropriate securities to guarantee installation of
the required subdivision improvements as shown on the approved plans prior to map recordation,
and the required fees will be received prior to map recordation, as prescribed in the Subdivision
Agreement, the Development Agreement, and the project approvals; and
Resolution No. 10968 (2018 Series) Page 2
WHEREAS, all requirements, conditions and mitigation measures required per said
Council Resolution No. 10832 (2017 Series) approving the tentative map and Ordinance No. 1639
(2017 Series) approving the Development Agreement have been completed or appropriate
securities will be in place to guarantee their completion prior to map recordation; and
WHEREAS, some of the improvements being constructed by Tract 3089 Phase 1 are off-site
and are considered stand-alone projects that could be completed and accepted for maintenance by the
City prior to completion of the remaining subdivision improvements; and
WHEREAS, the Avila Ranch Development Plan and associated Final Environmental Impact
Report were approved and certified by the City Council on September 19, 2017, pursuant to
Resolution No. 10832 (2017 Series). and
WHEREAS, approval of the final map is statutorily exempt under the California
Environmental Quality Act (CEQA) pursuant to Section 15268(b)(3) Ministerial Projects (approval
of final subdivision maps) of Title 14 of the California Code of Regulations (State CEQA Guidelines).
Therefore, no further environmental review is required.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of San Luis Obispo
as follows:
SECTION 1. The final map for Tract 3089 Phase 1 is found to be in substantial conformance
with the tentative map.
SECTION 2. The Community Development Director is authorized to issue fire
development fee credits to Tract 3089 Phase 1 with concurrence from the Fire Chief and the
Finance Director.
SECTION 3. Phase 1 provides sufficient parkland and park improvements to meet City
requirements based on the projected population and housing onsite, so there are no "in -lieu" park fees
required.
SECTION 4. The Mayor is authorized to accept fee offers for the interim fire station lot, the
sewer lift station lot, and the open space lots once the improvements are complete to the satisfaction
of the Public Works Director. The fee offers shall be in a form substantially the same as shown in
Attachment H of the staff report.
SECTION 5. The Mayor is authorized to accept an easement for biological open space for
the wetland relocation on Tract 3089 in a form acceptable to the Natural Resources Manager and
the City Attorney.
SECTION 6. The Mayor is authorized to accept an easement for on-site preservation of
farmland on Tract 3089 in a form acceptable to the Natural Resources Manager and the City
Attorney.
WE 1'6:
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SECTION 7. The Mayor is authorized to execute an agreement with the subdivider of Tract
3089 requiring the subdivider to offer an easement to the City for the ultimate widening of Buckley
Road along the project frontage if needed for a City, County, or development project in a form
acceptable to the Public Works Director and the City Attorney.
SECTION 8. The Public Works Director is authorized to execute an agreement with the
County of San Luis Obispo for the cost sharing of maintenance for Buckley Road, Vachell Lane and
the associated pedestrian/bicycle facilities in a form acceptable to the Public Works Director, Finance
Director, and City Attorney.
SECTION 9. Approval of the final map for Tract 3089 Phase 1 shown in Attachment I of
the staff report is hereby granted with the understanding that minor changes to the final map for
technical accuracy and condition compliance are still needed. The Public Works Director is
authorized to approve these changes and record the map when it is deemed to be complete and all
conditions and mitigation measures are complied with.
SECTION 10. The Mayor is authorized to approve revisions to the Subdivision Agreement
for Tract 3089 Phase 1 and execute the agreement in a form substantially the same as shown in
Attachment J of the staff report.
SECTION 11. The Public Works Director is authorized to reduce or release securities for the
off-site improvements once the requirements for release are met and is authorized to cause the
improvements to be accepted into the City's maintenance system.
SECTION 12. The Mayor and City staff are authorized to take action necessary to carry out
the intent of this resolution.
SECTION 13. Environmental Review. the Avila Ranch Development Plan and associated
Final Environmental Impact Report constitute the complete environmental determination for the
project. The final map is substantially in conformance with the tentative map evaluated with these
prior environmental determinations. Approval of the final map is statutorily exempt under the
California Environmental Quality Act (CEQA) pursuant to Section 15268(b)(3) Ministerial Projects
(approval of final subdivision maps) of Title 14 of the California Code of Regulations (State CEQA
Guidelines). Therefore, no further environmental review is required.
Resolution No. 10968 (2018 Series) Page 4
SECTION 14. The Mayor is authorized to execute a reimbursement agreement for Tract 3089
in a form substantially the same as shown in Exhibit A.
Upon motion of Council Member Christianson, seconded by Vice Mayor Pease, and on the following
roll call vote:
AYES: Council Members Christianson, Gomez, and Stewart,
Vice Mayor Pease and Mayor Harmon
NOES: None
ABSENT: None
The foregoing resolution was adopted this 4th day of December 2018.
ATTEST:
Teresa Purrington
City Clerk
APPROVED AS
listine Dietrick
Attorney
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City
of San Luis Obispo, California, this 10 tj' day ofIL? C eA,-VI h eL,- 2018.
V
Teresa Purrington
City Clerk
I' 1••:
CREDIT AND REIMBURSEMENT AGREEMENT
FOR AVILA RANCH
This Agreement is made on _______________, 2018, by and between the City of San Luis
Obispo, a municipal corporation and charter city (“City”) and Avila Ranch, LLC, a California limited
liability company (“Avila Ranch"”).
Recitals
A. WHEREAS, on September 19, 2017, the San Luis Obispo City Council certified the
Final Environmental Impact Report; approved the Avila Ranch Development Plan,
Airport Area Specific Plan Amendment 1318- 2015, General Plan Amendment 1319-
2015, Vesting Tentative Tract Map 3089, Ordinance 1638 (2017 Series) approving a
rezone of the Avila Ranch property and Ordinance 1639 ( 2017 Series) approving
Development Agreement 2017-1, and formation of a Community Facilities District
collectively “Project”); and
B. WHEREAS, Section 6.02.1 of Development Agreement 2017-1 requires Avila Ranch
to construct or pay for its fair share allocation of public facilities and infrastructure
needed to serve the Project; and
C. WHEREAS, Table B-2 of Exhibit C to the Development Agreement 2017-1, and
Appendix A of the adopted Citywide Transportation Impact Fee (“TIF”) program,
attached hereto as Exhibit 1 to this Agreement identifies the transportation
improvements to be constructed by Avila Ranch and the portion of the construction
cost subject to reimbursement from Transportation Impact Fees, Los Osos Valley
Road Fees, and/or private reimbursement agreements, and the Citywide TIF and
LOVR TIF identify other improvements that are reimbursable by virtue of their
inclusion in the TIF programs; and
D. WHEREAS, Exhibit 2 to this Agreement identifies certain transportation
improvements eligible for reimbursement; and
E. WHEREAS, the City and Avila Ranch entered into the April 3, 2018 letter agreement
Letter Agreement”) attached as Exhibit 3 to this Agreement confirming that Avila
Ranch shall receive reimbursement for construction of the Infrastructure
Improvements identified in Exhibit 2 to this Agreement and setting forth the applicable
timing for the fee credits; and
F. WHEREAS, in order to induce the Avila Ranch to incur the Developer Costs (a
schedule specifying the Developer Costs, is attached hereto and incorporated herein
by reference as Exhibit 4) the City of San Luis Obispo agrees to issue to the Developer
Eligible Fee credits, as defined below. A schedule specifying the Eligible Fees for the
construction of the Avila Ranch Project will be prepared by the City and Avila Ranch.
G. WHEREAS, The City has found in connection with its review and consideration of
this Agreement that no subsequent or supplemental Environmental Impact Report is
necessary or required under CEQA because the terms and conditions of this
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Agreement are consistent with and within the scope of and contemplated by the FEIR
adopted for the Project.
Based on the foregoing, for good and valuable consideration, the parties agree as follows:
AGREEMENT
1. Terms. The foregoing recitals are deemed by both parties to be a material part of this
Agreement and are incorporated herein and binding on the parties by this reference.
2. Capitalized terms used in this Agreement will have the following meanings:
a) “Agreement” means this agreement as executed by the Avila Ranch and the
City of San Luis Obispo.
b) “Applicable Interest” means the annual interest rate based on Engineering
News-Record’s Construction Cost Index (CCI) applied to amount of Developer Costs subject to
reimbursement. Applicable Interest shall be applied to Developer Costs whether or not TIF or
LOVR Fees are adjusted for inflation and shall be applied from the time Avila Ranch notifies the
City and the City agrees that the improvement is substantially complete, pursuant to Section 8 of
this Agreement.
c) “Approved Plans” means the plans for each Infrastructure Improvement set
forth in Section 2.(j) below as approved by the City, County or Caltrans, including any modifications
thereof including modifications directed during construction.
d) “Avila Ranch” or “Developer” means Avila Ranch, LLC.
e) “City” means the City of San Luis Obispo, a municipal corporation and charter
city.
f) “Conditions of Approval” means the Conditions of Approval for the
September 19, 2017 Project Approvals, including the Condition of the Vesting Tentative Tract Map
approved by Resolutions 10832 (2017 Series).
g) “Development Agreement” means Development Agreement 2017-1 between
the City and Avila Ranch approved by the City of San Luis Obispo City Council on October 3, 2017
by Ordinance 1639 ( 2017 Series).
h) “Developer Costs” means those costs specified in Exhibit 4 related to the
estimated cost of designing, permitting and constructing each of the Infrastructure Improvements.
Developer Costs shall include the cost of all right-of-way acquisitions secured by Avila Ranch, if any,
including the legal, accounting, project management, and costs of such rights of way acquisition.
Developer Costs shall include all Developer hard and soft costs, including, without limitation, the
following minimum amounts for insurance (1.75% of hard costs); supervision (2.25% of hard costs);
construction management (1.75% of hard costs); bonding and project management (3.5% of hard
costs). Such percentage allocations for the foregoing soft costs and indirect costs shall not require
detailed itemized justifications unless Avila Ranch’s claims for such expenses are in excess or the
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percentages claimed herein. Soft costs shall include Developer’s legal, accounting, and engineering
costs.
i) “Eligible Fees” means the Citywide Transportation Impact Fees collected
from Tract 3089 that are eligible to reimburse Avila Ranch for the actual costs of constructing
Infrastructure Improvements. Eligible Fees shall also include a fraction of the fees collected from
other properties in the Airport Area Specific Plan and adjacent properties for the Citywide
Infrastructure Improvements, if any. In addition, Eligible Fees include any Ad Hoc or Mitigation
Fees levied and collected by the City for the specific improvements in Exhibit 2, if any. For the
purposes of crediting or reimbursing for the southbound Highway 101 ramp meters at the LOVR on-
ramp (Development Agreement Project T21 and Condition of Approval 126) “Eligible Fees” means
the LOVR Transportation Impact Fees collected from Tract 3089 and other projects within the LOVR
sub-area and the proportionate share of Citywide Transportation Impact Fees allocated to the LOVR
interchange collected from projects citywide (“LOVR Eligible Fees”). In addition to the LOVR TIF
fee credits and Citywide TIF fees allocated to the LOVR improvements, Eligible Fee shall also
include any Ad Hoc fees or Mitigation Fees levied and collected for the LOVR/101 Interchange
improvements.
j) “Infrastructure Improvements” means those improvements identified in
Section 6.02.1 and Exhibit C to the Development Agreement as further detailed in Exhibit 2 to this
Agreement. Infrastructure Improvements are referred to individually as “Infrastructure
Improvement.”
k) “LOVR Fees” means the Los Osos Valley Road transportation impact fee.
l) “TIF Fees” means the Citywide” transportation impact fees as defined under
Section 66000 (b) of the California Government Code that were adopted by the City of San Luis
Obispo on April 3, 2018.
m) “VTTM” means Vesting Tentative Tract Map 3089 approved by Resolution
10832 (2017 Series) on September 19, 2017.
3. City Obligations. In consideration of Avila Ranch’s agreement to design and construct
the Infrastructure Improvements, the City agrees to the following:
a) To reasonably cooperate and work with Avila Ranch to review contractor bids
in a timely manner to confirm that work proposed conforms to Approved Plans.
b) To provide to Avila Ranch, no later than 30 days prior to the date that Avila
Ranch advises City that the work is to be commenced, with a written description (“City Description”)
of the nature and extent of bills, invoices, contracts, and other documents necessary to evidence
payment in order to be eligible for reimbursement pursuant to Section 5 of this Agreement (“Required
Documentation of Expenditures”). In the event the City fails to provide a City Description of Required
Documentation of Expenditures within the time provided in this paragraph 3(b), Avila Ranch shall
submit its own reasonable description of the Required Documentation of Expenditures (“Avila
Ranch’s Required Documentation of Expenditures”), which description shall be presumed to be the
City’s Required Documentation of Expenses unless the City requests changes within ten (10) business
days of receipt of Avila Ranch’s Required Documentation of Expenditures.
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c) Upon Avila Ranch’s completion of each Infrastructure Improvement as
specified in the Approved Plans for each Infrastructure Improvement, and upon notification to the
City, the City shall inspect the Infrastructure Improvement to determine compliance with Approved
Plans and engineering standards. If the Infrastructure Improvement is determined by the City to be
constructed in accordance with the Approved Plans for the Infrastructure Improvement, the City shall
approve each Infrastructure Improvement and accept it in accordance with Section 9 of this
Agreement.
d) To timely credit against Eligible Fees due from Avila Ranch for reimbursement
to Avila Ranch for its Developer Costs pursuant to Section 5 of this Agreement. The City shall provide
credit for the cost of the Infrastructure Improvement, together with Applicable Interest, in accordance
with this Agreement.
e) To convey any funds collected from San Luis Ranch (“SLR Funds,”
approximately $140,000) for the construction of the Northbound Right Turn Lane at Higuera and
South Street (VTTM Condition 112) to Avila Ranch immediately upon Avila Ranch’s substantial
completion of the improvement. The City agrees to hold all funds collected from San Luis Ranch for
the purpose of the Higuera and South Street intersection improvement at the time of map recordation
until Avila Ranch substantially completes the improvement. Upon such completion, and after City
inspection pursuant to paragraph (c) above, the City agrees to immediately convey such funds to Avila
Ranch.
f) To reimburse or provide credit of LOVR Eligible Fees to Avila Ranch for all
the costs to design and construct the Southbound 101 On-Ramp meter at Los Osos Valley Road in
excess of Avila Ranch’s fair share, which was determined to be three percent (3%) of project costs.
The City shall defer collection of any LOVR Fees from Avila Ranch until Avila Ranch completes
construction of the On-Ramp meter. The City shall credit and reimburse Avila Ranch from the LOVR
Fee and the LOVR portion of the Citywide TIF. The City and Avila Ranch agree that all LOVR
Eligible Fees (LOVR Fee and the LOVR portion of the Citywide TIF) not otherwise committed to
Costco by virtue of the 2006 reimbursement agreement executed between Costco and the City will
be used to reimburse Avila Ranch for its costs for the design and construction of the Southbound 101
On-Ramp at Los Osos Valley Road in excess of 3% of the total costs of design and construction. If,
after all credits are applied and payments are made from currently available LOVR Eligible Fees,
reimbursement is still owed to Avila Ranch, payments shall be made to Avila Ranch from LOVR
Eligible Fees paid by other developers quarterly as permit fees are paid.
4. Developer Obligations. In consideration of City’s entering into the Agreement, Avila
Ranch agrees to the following:
a) In order to assure that the costs of construction of the Infrastructure
Improvements are reasonable, prior to commencing construction of the Infrastructure Improvements,
Avila Ranch shall obtain at least three (3) non-collusive bids for construction of the Infrastructure
Improvements and provide copies to City. Avila Ranch is not required to accept any particular bid.
However, if Avila Ranch accepts a bid which is (1) more than ten (10) percent higher than the lowest
bidder or (2) above the Engineer’s Estimate for the Improvement, Avila Ranch must reasonably
justify its selection to the City, which justification must be accepted or rejected by the City within ten
10) business days of submission. If the City rejects the justification, it must set forth in writing its
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reasoning for the rejection and meet and confer with Avila Ranch to discuss the rejection. City may
not unreasonably reject Avila Ranch’s bid selection.
b) To provide the Required Documentation of Expenditures required in Section
3(b). Avila Ranch shall organize the Documentation according to Infrastructure Improvement and
shall reasonably correlate Documentation to the work required for each Infrastructure Improvement.
c) To respond to City’s reasonable requests for additional information to resolve
discrepancies provided such additional information falls within the scope of the City’s Required
Documentation of Expenditures.
d) To construct each Infrastructure Improvement according to the Approved
Plans.
e) To construct each Infrastructure Improvement in the phases identified in the
Development Agreement and Conditions of Approval.
5. Proof of Developer Costs; Limits. Avila Ranch is entitled to fee credits and
reimbursements of Developer Costs and Applicable Interest for the Infrastructure Improvements from
Eligible Fees. The City shall issue fee credits for the Infrastructure Improvement up to a total amount
of $4.66 million1 adjusted for inflation in accordance with Section 2(b) above for all Infrastructure
Improvements , within ten (10) days of Avila Ranch submitting to the City proof of obtaining a bond
in a form acceptable to the City for completion of the improvement. Upon completion of the
improvement, Avila Ranch shall submit the Required Documentation of Expenditures requested by
the City pursuant to Section 3(b) of this Agreement to City for verification. If final actual Developer
Costs increase pursuant to accepted bid amounts, approved change orders, or other modifications
directed by the City Engineer or City staff, creditable Developer Costs shall be increased.
a) Avila Ranch may elect to receive fee credits for reimbursement of Developer
Costs and Applicable Interest or, Avila Ranch may elect, at its sole discretion, to receive cash
reimbursement for Developer Costs and Applicable Interest, payable to Avila Ranch, from the City,
from Eligible Fees paid by builders within Tract 3089 at the time of building permit. If, after all
Eligible Fee Credits are applied, there is still a balance owed to Avila Ranch for Developer Costs,
Avila Ranch may elect to receive fee credits for reimbursement of Developer Costs and Applicable
Interest or, Avila Ranch may elect, at its sole discretion, to receive cash reimbursement for Developer
Costs and Applicable Interest, payable to Avila Ranch, from the City, from Eligible Fees. If Avila
Ranch sells or conveys the lots within Tract 3089 to others entities, Avila Ranch may transfer its fee
credits to other purchasers within Tract 3089. City shall collect the fees and pay to Avila Ranch
quarterly such collection. Avila Ranch shall have the option, but not the obligation to assign fee
credits payable under this Agreement to third parties. In the case of such assignment, Avila Ranch
will provide notice to the City within thirty (30) days of any assignment and will release the City of
any obligation to pay or credit Avila Ranch with respect to those credits transferred.
b) One hundred percent (100%) of the Eligible Fees paid by Avila Ranch and/or
builders constructing within the VTTM shall be applied for reimbursement to Avila Ranch until Avila
Ranch is fully reimbursed for its Developer Costs for each transportation Infrastructure Improvement,
1 Draft note: City to confirm amount prior to signature.
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plus Applicable Interest. One hundred percent (100%) of the LOVR Eligible Fees paid by Avila
Ranch or builders constructing within the VTTM shall be applied to reimburse Avila Ranch for the
Developer Costs of constructing the T21 Southbound Ramp Metering at US101/LOVR Interchange,
plus Applicable Interest, subject to paragraph (a) above.
c) Upon completion of each Infrastructure Improvement, Avila Ranch shall
submit Required Documentation of Expenditures in the form identified pursuant to Section 3(b) of
this Agreement to the City for City Engineer verification. Required Documentation of Expenditures
may be submitted in advance of City acceptance of the Infrastructure Improvement. Within sixty (60)
days after submittal of Required Documentation of Expenditures by Avila Ranch, City Engineer shall
verify the Developer Costs, or shall submit a request in writing to Avila Ranch for additional
information identified pursuant to Sections 3(b) and 4(c) of this Agreement deemed necessary by the
City Engineer to verify Developer Costs, subject to the limitations in those Sections. Such additional
information shall be submitted by the Avila Ranch to the City Engineer within thirty (30) days from
receipt of the written request by the City Engineer.
d) Once the Required Documentation of Expenditures is deemed complete by the
City Engineer, the City shall confirm the amount of the reimbursement and fee credits for each
Infrastructure Improvement within forty-five (45) days.
6. Fee Payments and Credits. Upon completion of each Infrastructure Improvement, City
shall reconcile and issue final confirmation of the amount of Eligible Fee credits and Developer Costs.
If at the completion of Infrastructure Improvement, the Eligible Fees are less than the accumulated
Developer Costs for the Infrastructure Improvement, the City shall issue supplemental fee credits or
reimbursements but only from Eligible Fees, if any are available.
7. Scope of Agreement. This Agreement shall not be construed to limit the right of the
City to modify the Infrastructure Improvements, provided such changes are within the scope of the
Development Agreement, Conditions of Approval, and the Letter Agreement. It is understood that
any changes to the Infrastructure Improvement, including changes directed in the field, may result in
corresponding adjustments to the Developer Costs and the amount of Eligible Fee credits as set forth
in the Agreement.
a) Any increase or decrease in cost from the Developer Cost must be reflected in
the Contractor bid or change orders submitted by Avila Ranch and approved by the City or vice versa.
The only change orders excepted from City approval are (1) those directed by City staff, (2) those in
which Avila Ranch shifts cost savings from one line item of an Infrastructure Improvement to another
line item within the same Infrastructure Improvement (excluding use of project contingency), or (3)
those for which Avila Ranch does not seek reimbursement from the City.
b) Avila Ranch and the City Engineer, together, may approve a change order if
the total Developer Cost increase to any individual Infrastructure Improvement is Twenty-Five
Thousand Dollars ($25,000) or less and the net total of the change orders theretofore approved does
not exceed the contingency amount for the Infrastructure Improvement. Avila Ranch and the City
Manager together may approve a change order if the cost increase is One Hundred Thousand Dollars
100,000) or less and the net total of the change orders theretofore approved does not exceed the
contingency amount. Any change order in excess of one hundred thousand dollars ($100,000) above
the Development Costs, may require City Council approval as determined by the Director of Public
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Works. Any change orders for additional work that is directed by the City’s Public Works Inspector,
or other City official, shall be conclusively deemed to have been reviewed and approved, and such
work shall be outside of the amounts identified in this Section 7 (b).
c) The City’s approval of a change order shall not be unreasonably withheld,
delayed or conditioned; provided it shall be reasonable for the City to deny any change order resulting
from a cause other than unforeseen conditions, or for work that does not meet the Approved Plans,
City Engineering Standards, or does not meet the workmanship that is customary for the region. The
City shall accompany any rejection with a written statement of the basis therefor. To the extent the
change order requires City approval, Avila Ranch may proceed with the work covered by the change
order pending City approval of the change order, or even after City rejection of the change order, but
Avila Ranch shall do so at its own risk to the extent that the City raises valid objections to the change
order proposal. Any change order that is submitted to the City for approval shall be deemed accepted
if not accepted or rejected by the City within ten (10) working days of such submittal, unless the City
requests an extension of time due to the complexity of the change order. Any change order submitted
that needs City Council approval shall be placed upon the next City Council agenda after the change
order request has been deemed complete by the City Engineer.
8. Indemnification. Avila Ranch shall indemnify, defend and hold City, its officials,
officers, employees and agents harmless from and against any and all liability, claims, suits, actions,
damages, and causes of action arising out of any personal injury, bodily injury, loss of life, or damage
to property, or any violation of any federal, state or municipal law or ordinance, including, but not
limited to, the Avila Ranch’s failure to pay prevailing wages, or other cause in connection with the
acts or omissions of Avila Ranch, its employees, subcontractors, or agents, or on account of the
performance or character of construction and installation of the Infrastructure Improvements. Such
indemnification by Avila Ranch shall cease for any claims made with respect to each Infrastructure
Improvement upon which occurred after acceptance of that Infrastructure Improvements by the City.
It is understood that the duty of Avila Ranch to indemnify and hold City harmless includes the duty
to defend City as set forth in section 2778 of the California Civil Code. Within fifteen (15) days of
City’s notice that it has been made a party to an action arising out of Avila Ranch’s acts or omissions
under this Agreement, Avila Ranch shall provide a defense to the City in that action, with counsel
acceptable to City. In the event Avila Ranch fails to provide such a defense to City, Avila Ranch
shall be liable to the City for its attorneys'’ fees and litigation costs incurred to defend itself beginning
on the sixteenth (16th) day from the date of the City’s notice and request for a defense. Acceptance
of insurance certificates and endorsements required under this Agreement does not relieve Avila
Ranch from liability under this indemnification and hold harmless clause. This indemnification and
hold harmless clause shall apply whether or not such insurance policies shall have been determined
to be applicable to any of such damages or claims for damages.
9. Acceptance of the Infrastructure Improvements. Each Infrastructure Improvement to
be constructed shall become the sole exclusive property of the City or Caltrans upon acceptance.
Avila Ranch shall notify City in writing when each Infrastructure Improvement is complete. Each
notice shall be submitted to the City by personal delivery and shall be deemed received by the City
on the date of delivery. Such written notification shall include a request that the City accept each
Infrastructure Improvement. As soon as practicable but no later than sixty (60) days of receipt of
such notification of completion of an Infrastructure Improvement, the City shall determine whether
the Infrastructure Improvement was constructed in accordance with the Approved Plans for that
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Infrastructure Improvement and engineering standards. Within sixty (60) days of when the City
determines the Infrastructure Improvement was constructed in accordance with the Approved Plans
and engineering standards, the City shall accept the Infrastructure Improvement at the next available
City Council hearing. If the City determines that an Infrastructure Improvement was not constructed
in accordance with the Approved Plans and engineering standards, then the City will provide written
notice to Avila Ranch. Written notice shall include details of the identified deficiencies. The City
shall meet and confer with Avila Ranch to discuss these deficiencies within ten (10) business days of
Avila Ranch’s request to do so.
10. Force Majeure. The Term of this Agreement and the time within which Avila Ranch
shall be required to perform any act under this Agreement shall be extended by a period of time equal
to the number of days during which performance of such act is delayed unavoidably by strikes, lock-
outs, Acts of God, failure or inability to secure materials or labor by reason of priority or similar
regulations or order of any governmental or regulatory body, initiative or referenda, moratoria,
litigation filed attacking execution or performance of this Agreement, severe economic downturn,
enemy action, civil disturbances, fire, unavoidable casualties, or any other cause beyond the
reasonable control of Avila Ranch.
11. Successors and Assigns. Each and every provision of this Agreement shall be binding
and inure to the benefit of the successors in interest of the Parties hereto.
12. Term. This Agreement shall expire when reimbursements and credits for all
improvements constructed by Avila Ranch identified in this Agreement are completed, and fully
satisfied.
13. Integration. This is an integrated Agreement containing all of the consideration,
understandings, promises and covenants exchanged between the parties, notwithstanding the Avila
Ranch’s obligations as specified in the approved Conditions of Approvals, the VTTM, and the
Development Agreement.
14. Construction and Interpretation. It is agreed and acknowledged by the parties that the
provisions of this Agreement have been arrived at through negotiation, and that the parties have had
a full and fair opportunity to revise the provisions of this Agreement and to have such provisions
reviewed by legal counsel. Therefore, the normal rule of construction that any ambiguities are to be
resolved against the drafting party shall not apply in construing or interpreting this Agreement.
15. Jurisdiction. Any action by any party to this Agreement shall be brought in the
appropriate court of competent jurisdiction within the County of San Luis Obispo, State of California,
notwithstanding any other provision of law which may provide that such action may be brought in
some other location.
16. Choice of Law. This Agreement is made under and in all respects will be interpreted,
enforced and governed by the laws of the State of California.
17. Amendment. This Agreement cannot be altered, amended or modified in any way
without the express written consent of each party hereto or their authorized successor-in-interest.
18. Time is of Essence. Time is of the essence for this Agreement.
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19. Notice. Notices under this Agreement shall be deemed given when delivered by First
Class Mail, Postage Prepaid, as follows:
City of San Luis Obispo: City Clerk
990 Palm Street
SanLuisObispo, CA 93401
with a copy to:
CityAttorney
990 Palm Street
SanLuisObispo, Ca 93401
Avila Ranch:
AvilaRanch, LLC Andrew D. Mangano, Managing Member
3561 South Broad Street
SanLuisObispo, CA93401
Stephen J. Peck
Peck Planning and Development,LLC
2455 Greenwood Avenue
Morro Bay, CA 93442
with a copy to:
Leslie Z. Walker
Thomas Law Group
455 Capitol Mall, Suite 801
Sacramento, CA 95814
20. Counterparts. This Agreement may be executed in one of more counterparts, each of
which shall be deemed an original, but all of which together shall constitute a single agreement.
21. Severability. If any one or more of the provisions contained in this Agreement shall
be found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability
of the remaining provisions shall not, in any way, be affected or impaired.
22. Authority. The parties hereby represent that the persons executing this Agreement are
expressly authorized to do so for and on behalf of the parties.
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23. Captions. The captions of the Sections of this Agreement are for convenience and
reference only, and are not intended and shall not be construed to define or limit the provision to
which they relate.
24. Recitals and Exhibits. The Recitals first set forth herein and all Exhibits attached
hereto are incorporated in this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed the
day and year first above written.
CITY OF SAN LUIS OBISPO
By:
Mayor Heidi Harmon
ATTEST:
Teresa Purrington, City Clerk
AVILA RANCH, LLC, a California limited liability
company
By:
Name:
Title:
APPROVED AS TO FORM:
J. Christine Dietrick, City Attorney
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