HomeMy WebLinkAboutPM 2004-21 - Conditions of Approval - 12/20/2005 Recording Requested by:
City Clerk,Fresno, California FRESNO Count
No Fee-Gov't. Code 6103 Robert C, UerCorder
ner
When Recorded,Return to City Clerk DOC— 20055-0171775
City of Fresno Friday, JUL 29; 2005 14:21:18
2600 Fresno Street,Room 2133 Tt l Pd $0.00 Nbr-0001902048
Fresno, CA 93721-3623 JZG/R2/1-112
Space above this line reserved for Fresno County Recorder's Office
MASTER DISPOSITIONAND DEVELOPMENT AGREEMENT
THE REDEVELOPMENT AGENCY OF THE CITY OF FRESNO
and
OLD ARMENIAN TOWN,LLC
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MASTER DISPOSIT.iON AND DEVELOPMENT AGREEMENT
The REDEVELOPMENT AGENCY OF THE CITY OF FRESNO, a public body
corporate and politic (the"Agency"), and OLD ARMENIAN TOWN, LLC, a California limited
liability company (the"Developer"), enter this MASTER DISPOSITION AND
DEVELOPMENT AGR.EEMENT(the "Agreement") as of the Effective Date (defined in this
Agreement).
RECITALS:
The Parties enter this Agreement based on the following facts, understandings,
and intentions:
A. By authority granted under California Redevelopment Law (the "Law"), the Agency is
responsible for carrying out the Redevelopment Plan for the Convention Center
Redevelopment Project Area, as amended (the "Plan").
B. The Council of the City of Fresno (tile "Council") adopted the Plan on January 12, 1982,
by Ordinance No. 82-6. The Council amended the Plan on December 6, 1994, by
Ordinance No. 94-118, and on June 30, 1998, by Ordinance No.98-46. The Plan,
including the amendments, are recorded in the Official Records of Fresno County.
C. The Plan affects and controls real property development and use within that area in the
City of Fresno, California, described in the Plan (the "Project Area").
D. The Agency has selected the.Developer to be the master developer of approximately 9.97
acres located in the Project Area generally bounded by O Street, Ventura Street, M Street
and Freeway 41 (the "Master Development Site"). The Master Development Site is more
particularly described on attached Exhibit B.
E. The Developer proposes to develop the Master Development Site, other than the
Courthouse Parcel and the State Parking Parcel (but including the Parking Structure
Easement on, over and under the State Parking Parcel), in two phases, Phase I and Phase
11 as shown on the Master Plan attached as Exhibit A (the "Master Plan"), as an integrated
high-quality mixed-use commercial development containing office, retail, parking,
restaurant, service.and community uses and related facilities. The proposed name of the
Master Development Site, after development, is "Old Arnienian Town." As proposed by
the Developer, and pursuant to the Plan and the Master Plan, the Agency has entered into
the separate State Agreement with the State of California, acting through its Department
of General Services, whereby the Agency has assembled and conveyed the Courthouse
Parcel and the State Parking Parcel to the State for development, as part of Phase 1, of a
multi-level court, parking lot and related facilities for use by the California Fifth District
Court of Appeal, all pursuant to and as an integrated part of the Master Plan.
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F. The Agency owns some real property within Phase 1 of the Master Development Site (but
not the Courthouse Parcel and the State Parking Parcel, which has been conveyed to the
State) and some real property in Phase 11 of the Master Development Site. Other real
property in the Master Development Site is owned by private persons and entities. The
Developer proposes that, upon the Commencement Date for Phase I, the Agency use best
efforts to acquire the real property in Phase I owned,by private persons or entities -
(excluding the Courthouse Parcel and the State Parking Parcel), assemble the acquired real
property with real property in Phase I owned by the Agency into separate legal parcels,
and convey the individual parcels to the Developer for development of Phase I pursuant to
the Master Plan, the Schedule of Performance and this Agreement. The Developer further
proposes that, upon the Commencement Date for Phase 11, the Agency use best efforts to
acquire the real property,in Phase 11 owned by private persons or entities (excluding the
Lahvosh Bakery Parcel), assemble the acquired real property with real property in Phase
If owned by the Agency into separate-parcels, and convey the individual parcels to the
Developer for development of Phase 11 pursuant to the Master Plan, the Schedule of
Performance and this Agreement. The Developer further proposes that the Agency(i)
enter into an owner participation agreement with the owner of the Lahvosh Bakery Parcel
for development.as provided in this Agreement, and (i)) provide other development
assistance as provided in this Agreement.
G. The Housing and Community Development Commission reviewed the Project and this
Agreement on October 20, 2004, and recommended that the Council approve it.
H. The Project and this Agreement have been environmentally assessed in compliance with
the California Environmental Quality Act("CEQA") by Environmental Impact Report
SCH No. 2003051046(the "EIR").
I. On March 19,2002, the Agency approved the replacement housing plan for the Project
and the Master Development Site.
J. In a joint hearing held on November 30, 2004, (i) the Agency Board, by Agency
Resolution No. 1655, certified the E1.R , (ii) the Council and the Agency Board, by
Council Resolution No. 20047449/Agency Resolution No. 2004-1656, approved this
Agreement between the Agency and the Developer, substantially in,,the form presented to
Council and the Agency, and (iii) the Council and the Agency Board made certain
findings required by the Law.
K. The Agency has determined that this Agreement is in the best interests of, and will
materially contribute to, Plan implementation in the downtown area of the City. Further,
the Agency has found that the Project (i) will have a positive influence on the Master
Development Site, the Project Area and swrounding environs, (ii) is in the vital and best
interests of the Agency, the City and the health, safety, and welfare of City residents,(iii)
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complies with applicable federal, state and local laws and requirements, (iv)will help
eliminate blight, (v)will put underutilized land to economically viable use, (vi)will
alleviate depreciated and stagnant property values and impaired investments, (vii)will
attract a variety of office, commercial and service facilities and services to the Project
Area and the community, and (viii) will expand employment opportunities for City
residents.
AGREEMENT
I PARTIES, FACTS AND.DE.FiNiTIONS. The following terns, where used in
the above .Recitals and other provisions of this Agreement, have the meanings in this Section
unless expressly provided to the contrary:
1.1 "Acquisition Parcels" means the parcels of land within the Master
Development Site(other than the Courthouse Parcel and the State Parking Parcel, which
have been conveyed to the State, and the Lahvosh Bakery Parcel) that are owned by
private persons or entities on the Effective Date.
1.2 "Agency" means the Redevelopment Agency of the City of Fresno, a
public body, corporate and politic, exercising governmental powers, organized and
existing under the Law. The term also includes any assignee of, or successor to, the
rights, powers, and responsibilities of the Agency.
1.3 "Agency Board" means the Council sitting as the governing board of the
Agency, or any successor govenung board of the Agency.
1.4 "Agency Parcel" means those parcels of real property owned by the
Agency within Phase l and Phase If of the Master Development Site as of the Effective
Date.
1.5 "Armenian Cultural Center" means the Developer improvements to be
constructed on the Cultural Center Parcel, consisting of a mix of retail, conference and
cultural facilities, containing approximately 30,000 to 40,000 square feet, as further
described in the Scope of Development.
1.6 . "Available Funds" means money available for particular expenditures
according to all applicable laws, and the policies and procedures of the Agency,as
determined in the sole discretion of the Agency Board.
1.7 "City" means the City of Fresno, a municipal corporation, having its
offices at 2600 Fresno Street, Fresno, California 93721-3605,and operating through its
Council and its various departments_ The City is an entity distinct and separate from the
Agency, is not a party to this Agreement and will have no rights or obligations hereunder.
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1.8 "Closing" means the closing of each-escrow opened to bring about the
purchase and transfer of each Development Parcelfrom the Agency to the Developer, as
provided in the Schedule of Performance and evidenced by a recorded Grant Deed.
1.9 "Commencement Date" means(i) for Phase 1,45 days after the Effective
Date of this Agreement(defined below), and (ii)for Phase 11, 45 days after the Developer
gives notice to the Agency that the Developer is ready to proceed with Phase II and the
Agency has approved the Developer's Financing Plan for Phase 11.
1.10 ".Common Area" means that area of the Master Development Site that
will be subject to mutual and reciprocal easements for common use by all the
Development Parcels, the .Lahvosh Bakery Parcel, the Courthouse Parcel and the State
Parking Parcel pursuant to the Master Plan CC&R.'s. The Common Area will contain
common use amenities such as pedestrian walkways, landscaping, lighting and water
amenities such as fountains, as described in the Scope of Development. The Common
Area is designated as such on the Master Plan and is to be established as a separate parcel
in each Parcel Map pursuant to the Davis-Stirling Common Interest Development Act
(California Civil Code Sections 1350-1376).
.1.1 1 "Construction Costs" means the.Developer's aggregate estimated costs to
complete the Developer Improvements on a Development Parcel, as described in Exhibit
E, including but not limited to all development-related fees, utility hook-up charges and
mitigation fees or exactions imposed as conditions of development or occupancy of the
Developer improvements.
1.12 "Council" means the City Council-of the City.
1.13 "Courthouse.Facilities"means the courthouse building, containing
approximately 60,000 gross square feet, and related improvements to be constructed and
developed on the Courthouse Parcel by the State pursuant to the State Agreement. The
Courthouse Facilities will be used by the judicial and administrative staff of the Fifth
Appellate District of the State of California for courtrooms and offices.
1.14 "Courthouse Parcel" means.Parcel A shown on the Master Plan, located
at the corner of Ventura and 0 Streets. The Courthouse Parcel has been assembled by the
Agency and conveyed to the State for development of the Courthouse Facilities pursuant
to the State Agreement.
1.15 "Cultural Center Parcel' means the Parcel B on the Master Plan, located
at the southwest corner of Ventura and M Streets.
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1.16 "Default" means a .Party's failure to timely perform any action or covenant
required by this Agreement following notice and opportunity to cure.
1.17 "Developer" means OLD ARMENIAN TOWN, LLC, a California limited
liability company, with offices at 555 West Shaw Avenue,No. B4, Fresno, California
93704, and any successors, transferees and assignees'authorized and approved pursuant to
this Agreement. "Developer" also means a redeveloper under the Law.
1.18 "Developer Improvements" means the new on-site and off-site
improvements the Developer or its authorized transferee, assignee, lessee or successor is
to construct on or adjacent to the individual Development Parcels, or the on-site and off-
site improvements that any other purchaser of an individual Development Parcel
authorized by this Agreement is required by the disposition and development agreement,
deed covenants, the Master Plan CC&R's and the Master Plan to construct on or adjacent
to the Development Parcel, and all approvals and permits required for the Developer, its
transferee, assignee, lessee or successor or other authorized purchaser to complete the
improvements, all as more particularly described in this Agreement, the Master Plan and
the Scope of Development. Unless the context requires otherwise, the Developer
Improvements for an individual Development Parcel include improvements in those
portions of the Common Area adjacent or related to that Development Parcel, as described
in the Master Plan. The Developer Improvements do not include those improvements to
be constructed by the Agency or the City as provided in subsection 1 1.1 or the Lahvosh
Bakery.Project as provided in subsection 13.7.
1.19 [Not Used.]
1.20 "Development Parcels" means the Office Building No. 1 Parcel, the
Office Building No. 2 Parcel, the Office Building No. 3 Parcel, the Parking Structure,
Parcel, the Surface Parking Parcel, the Cultural Center Parcel and, unless the context
requires otherwise, the Common Area. The Development Parcels do not include the
Lahvosh Bakery Parcel, the Courthouse Parcel or the State Parking Parcel
1.21 "Environmental Laws" means any federal, state or local laws, statutes,
ordinances or regulations pertaining to environmental regulation, contamination or
cleanup of any Hazardous Materials including, without limitation, any state or federal lien
or"superlien" law, any environmental cleanup statute or regulation, or any
governmentally required environmental permit, approval, authorization, license, variance
or permission.
1.22 "Escrow" means each escrow opened with the Escrow Holder to convey
one or more.Development Parcels to the Developer,
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1.23 "Escrow Holder" means Fidelity National Title Insurance Company,
. 1680 West Shaw Avenue, Suite 101; Fresno, California, or another title company mutually
satisfactory to both parties.
1.24 "Effective Date" means the date that the Executive Director signs this
Agreement after the Agency .Board approves the Agreement and the Developer has met
any conditions to the Executive Director's signing, which conditions are delivered to the
Developer in writing prior to the time the.Developer executes this-Agreement.
1:25 ".Executive Director" means the person appointed and acting as the
Executive Director or Interim Executive Director of the Agency.
1.26 "Financing Plan" means, for either Phase I or Phase 11, (i) loan
Commitments, which the Developer has accepted in writing, from qualified conventional
commercial lenders for construction financing sufficient to complete the Developer's
construction obligations hereunder for that Phase, (ii) a pro forma construction budget,
and pro forma operating financials for a one-year period, (iii) the Developer's construction
contract with one or more general contractors licensed to do business in California, and
(iv) any other financial data reasonably requested by the Agency. The Executive Director
may, in his or her discretion,permit the construction loan commitments and the
construction contracts for the Phase 1.1 Financing Plan to be submitted separately for each
Development Parcel in .Phase If.
1.27 "Grant Deed" means each grant deed, substantially in the form of Exhibit
F, by which the Agency will convey any Development Parcel to the Developer. Each
Grant Deed will contain all conditions, covenants, and restrictions required by the Law,
any other applicable laws and regulations, the Plan and this Agreement.
1.28 ".Hazardous Materials" means any substance, material or waste which is
or becomes,regulated by any local governmental authority, the State of California or the
United States Government including, without limitation, any material or substance which
is: (i) defined as a"hazardous waste,""extremely hazardous waste," or"restricted
hazardous waste"under Sections 25115, 25117, or 25 122.7, or listed pursuant to Section
25140 of the California"Health & Safety Code, (ii) defined as a "hazardous substance"
under Section 25316 of the California Health & Safety Code, (iii) defined as a "hazardous
material," "hazardous substance" or"hazardous waste" under Section 25501 of the
California Health & Safety Code,(iv) defined as a"hazardous substance" under Section
25281 of the California Health & Safety Code, (v) petroleum, (vi) friable asbestos, (vii)
polychlorinated byphenyls, (viii) listed under Article 9 or defined as "hazardous"or
"extremely hazardous" under Article I I of Title 22, California Administrative Code, (ix)
designated.as "hazardous substances" pursuant to Section 3.11 of the Clean Water Act (33
U.S.C. 51317), (x)defined as a "hazardous waste"pursuant to Section 1004 of the
Resource Conservation and Recovery Act (42 U.S.C. §§6901 et seq.), or(xi)defined as
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"hazardous substances" pursuant to Section of the Comprehensive Environmental
Response,Compensation,and Liability Act (42 U.S.C. §§9601 et seq.)
1.29 "Lahvosh Bakery Parcel" means Parcel C shown in Phase 11 of the
Master Plan, located at the northeast corner of M Street and Santa Clara Street, owned by
Valley Lahvosh Baking Company, Inc.
1.30 "Lahvosh Bakery.Project" means the repair, remodeling and
rehabilitation of the approximately 10,175 square foot retail bakery facility and related
improvements and facilities presently existing on the Lahvosh Bakery Parcel, pursuant to
an owner participation agreement as further described in subsection 13.7.
1.31 "Law" means the Community Redevelopment Law of the State of
California (Health & Safety Code §§ 33000 et seq.).
1.32 "Master.Development Site" means the real property containing
approximately 9.97 acres, generally bounded by O Street, Ventura Street, M Street and
Freeway 41,as depicted on the Master.Plan and described in attached Exhibit B. The
Master Development Site includes all the Development.Parcels, the Common Area,the
Lahvosh Bakery Parcel, the Courthouse Parcel and the State Parking Parcel
1.33 "Master Plan"means the drawing attached as Exhibit A, showing the
Development Parcels, the Common Area, the Lahvosh Bakery Parcel, the Courthouse
Parcel and the State Parking Parcel, and the location of the proposed Phase I and Phase 11
improvements on the Master Development Site.
1.34 "Master Plan CC&R's" means the covenants, conditions and restrictions
executed by the Developer and to be recorded on the entire Master Development Site,
providing uniform criteria, conditions and requirements for development, use, operation
and maintenance of all common use areas, landscaping, buildings and other structures
within the Master Development Site, including those provisions required by subsections
2.5 and 3.3 of this Agreement. The Master Plan CC&R's must be approved by the
Agency and the State prior to execution and recording. The Master Plan CC&R's, in the
form approved by the Agency and the State, will be executed by the Developer and
delivered to the Agency no later than 45 days after the Commencement Date for Phase 1.
The executed Master Plan CC&R's will be recorded on each Development Parcel and the
Common Area in Phase I or Phase 11 as provided in subsection 7.10 and paragraph 8.3.5.4.
Additionally, the Master Plan CC&R's will be recorded against the Lahvosh Bakery
Parcel as a condition of the owner participation agreement described in subsection 13.7.
1,35 "Material Change" means a change, modification, revision or alteration to
plans, drawings, or other documents, Financing Plans or requirements that substantially
deviates from those previously approved by the Agency.
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1.36 "Office Building No. l" means the Developer Improvements to be
constructed on the Office Building No. I Parcel as part of Phase 1, consisting of a five to
eight story office building containing approximately 100,000 to 220,000 gross square feet
of Class A office space, and related improvements and facilities, as further described in. .
the Scope of Development. The ground floor plate of Office Building No. I shall not
exceed 30,000 square feet, and the height of Office Building No. I shall not exceed 135
feet.
1.37 "Office Building No. I Parcel" means Parcel.D shown on the Master
Plan, located at the corner of Santa Clara and O Streets.
1.38 "Office.Building No. 2" means the Developer Improvements to be
constructed on the Office Building No. 2 Parcel and a portion of the Surface Parking
Parcel as Part of Phase 11, consisting of a five to eight story office building, containing
approximately 100,000 to 250,000 gross square feet of Class A office space, and related
improvements and facilities,as further described in the Scope of Development.
1.39 "Office Building No. 2 Parcel" means Parcel E shown on the Master Plan,
located north of Santa Clara Street between M and O Streets, west of the Office Building
No. 1 Parcel.
1.40 "Office.Building No. 3" means the Developer Improvements to be
constructed on the Surface Parking Parcel as part of Phase 11, consisting of a seven to 14,
story office building, containing approximately 210,000 to 345,000 gross square feet of
Class A office space, and related improvements and facilities, as further described in the
Scope of Development.
1.41 "Office Building No. 3 Parcel" means Parcel F shown on the Master Plan,_
to be located north of Santa Clara Street, between the Office Building No. I Parcel and the
Lahvosh Bakery Parcel. The Office Building No. 3 Parcel is to be created out of the
Surface Parking Parcel through an amendment to the.Parcel Maps, a lot line adjustment or
other approval required by the City, as provided in paragraph 10.2.4.
1.42 "Outside Date" means, as to conveyance of an individual Development
Parcel, the last date on which the parties intend to Close Escrow for that Development
Parcel, or such later date on which the parties may mutually agree in writing.
1.43 "Parcel Map" means the Parcel Map PM 2004-21, dividing Phase I of the
Master Development Site into the separate Development Parcels, the Courthouse Parcel,
the State Parking Parcel and the Common Area. "Parcel Map" also means the parcel map
dividing Phase 11 of the Master Development Site into the Lahvosh Bakery Parcel,
separate Development Parcels and the Common Area.
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1.44 "Parking Structure" means the Developer Improvements consisting of a
multi-level parking structure and related improvements and facilities to be constructed as
part of Phase 11,as further described in the Scope of Development. The Parking Structure
will be constructed as two structures. The first structure is to contain approximately 505
parking spaces and is to be constructed within the Parking Structure Easement on, over
and under the State Parking Parcel to accommodate some of the parking for Office
Building No. I and the Courthouse Facilities. The second structure is to contain
approximately 850 additional parking spaces(1355 total parking spaces) and is to be
constructed on the Surface Parking Parcel to accommodate some of the parking for
Developer Improvements in Phase.I1.
1.45 "Parking Structure Easement" means a perpetual easement and right on,
under and over the State Parking Parcel, including the airspace above the State Parking
Parcel, reserved by the Agency from conveyance of the State Parking Parcel to the State
for purposes of construction, operation and use of the first structure of the Parking
Structure.
1.46 "Party," where capitalized, means the Agency or the Developer and, when
plural, means both.
1.47 "Phase I" means Office.Building No. I, the Courthouse Facilities, the
State Parking.Facilities,the Surface Parking Facilities, and that portion of the Common
Area associated therewith, as shown on the Master Plan.
1.48 "Phase I Parcels" means the Office Building No. I Parcel, the Surface
Parking Parcel and the associated portion of the Common Area to be conveyed to or
developed by the Developer within Phase 1.
1.49 "Phase 11" means Office Building No. 2, Office Building No. 3, the
Parking Structure (both structures), the Annenian Cultural Center, the Lahvosh Bakery
.Project, and that portion of the Common Area associated therewith, as shown on the
Master Plan.
1.50 "Phase 11 Parcels" means the Office Building No. 2 Parcel, the Office
Building No, 3 Parcel, the Parking Structure Easement, the Cultural'Center Parcel and the
associated portion of the Common Area to be conveyed to or developed by the Developer
in Phase 11, and the Lahvosh Bakery Parcel
1.51 "Plan" means the.Redevelopment Plan for the Convention Center
Redevelopment Project Area, as now or hereafter amended.
1.52 ".Project" means, collectively, all the on-site and off-site improvements
which are to be constructed on or around all Development Parcels, the Common Area and
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other portions of Phase1 and Phase lI of the Master Development Site under this
Agreement and the Master Pian as described in the Scope of Development. "Project"
includes, but is not limited to, Office Building No. 1, Office Building No. 2, Office
Building No. 3, the Arnlenian Cultural Center, the Lahvosh Bakery Project, the Surface
Parking Facilities, the Parking Structure; related landscaping improvements; parking,
pedestrian and vehicular circulation facilities; and other ancillary improvements in the
Common Area and on the Development.Parcels, the Courthouse Parcel and the State
Parking Parcel. "Project" does not include construction of the Courthouse Facilities on
the Courthouse Parcel or the State Parking.Facilities on the State Parking Parcel, which
are being separately constructed pursuant to the State Agreement.
1.53 "Project Area" means the boundaries of the land area included within the
Convention Center Redevelopment Project Area, as amended.
1.54 . "Redevelopment Administrator" means the person appointed and acting
as the Redevelopment Administrator of the Agency.
1.55 "Release of Construction Covenants" means the document,.substantially
in the form attached as.Exhibit G, which evidences the Developer's satisfactory
completion of the Developer lniprovements on a Development Parcel
1.56 "Schedule of Performance" means the schedule attached as Exhibit D,
setting forth the dates and tirnes by which the Parties must accomplish certain obligations.
under this Agreement, as it may be revised from time to time on mutual written
agreement of the Developer and the Executive Director or the Redevelopment
Administrator. The Executive Director or the Redevelopment Administrator is authorized
to make revisions to the Schedule of Performance on behalf of the Agency as he or she
deems necessary.
1.57 "Scope of Development" means the scope, quantity and quality of the
Developer Improvements to be constructed on the Development.Parcels, the Common
Area and other portions of Phase 1 and Phase ll of the Master Development Site pursuant
to this Agreement, all as more fully described herein and in Exhibit E attached. The
Scope of Development includes specific descriptions of and criteria for the Developer
Improvements to be constructed on each individual Development Parcel and in the
portions of the Common Area adjacent or related,to the Development Parcel.
1.58 "Security Financing Interest" means a security interest which the
Developer grants in a Development Parcel before the Agency issues and records a Release
of Construction Covenants to secure an underlying obligation, the proceeds of which are
used in the construction of Developer Improvements on that Development Parcel
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1.59 "State" means the State.of California and its various departments and
divisions, including but not limited to its Department of General Services, its Public
Works Board and/or its Administrative Office of the Courts.
1.60 "State Agreement' means the Agreement and Escrow Instructions for the
Transfer and Development of Real Property dated February 25, 2004,between the Agency
and the State providing for conveyance of the Courthouse Parcel and the State Parking
Parcel by the Agency to the State and the development thereon of the Courthouse
Facilities and the State Parking Facilities by the State.
1.61 "State Parking Facilities" means the surface vehicle parking lot and
related improvements to be constructed on the State Parking Parcel pursuant to the State
Agreement.
1.62 "State Parking Parcel" means Parcel G shown on the Master Plan, which
is located south of Santa Clara Street between N and O Streets.
1.63 "Surface Parking Facilities" means the surface vehicle parking lot and
related improvements to be constructed on the Surface Parking Parcel as part of Phase 1.
The Surface Parking Facilities,containing initially approximately 450 parking spaces, is
to accommodate the parking requirements for Office Building No. 1 until completion of
the first structure of the Parking Structure.
1.64 "Surface Parking Parcel' means Parcel H shown on the Master Plan,
which is located south of Santa Clara Street between M and N Streets.
1.65 "Toxics Reports" has the meaning set forth in Subsection 3.4.
2 CONDITIONS PRECEDENT TO AGENCY OBLIGATIONS. . The following
are conditions precedent to the effectiveness of this Agreement against the Agency. Until the
conditions are satisfied as to Phase I or Phase ll, the Agency is not obligated to take any action
under this Agreement as to that Phase. These conditions must be satisfied by the time stated or, if
no time is stated, then within:45 days after_the Commencement Date for the applicable Phase.
The Agency, in writing, may waive any condition or agree in writing to extend the time for
satisfaction; except that as to those'conditions specified in subsections 2.1. 2.4 and 2.5, such
waiver or extension will be effective only if the waiver or extension has been consented to in
writing by the Developer. Alternatively, the Agency may terminate this Agreement as provided
herein if there is a failure of a condition.
211 Funding. Within 45 days after the Commencement Date for Phase 1, the
Agency will have identified potentially Available Funds of at least $1,200,000.00 for its
costs related to Phase I. Within 45 days after the Commencement Date for Phase 11, the
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Agency will have identified potentially Available Funds and contingency funds in
amounts the Agency reasonably detennines are.necessary for its costs related to Phase 11.
2.2 Existence and Authority of:Developer. Before the Executive Director
signs this Agreement, and as a condition of the Executive Director's signature, the
Developer shall have delivered the following to the Agency: (i) a copy of the articles of
organization with a certification or other evidence from the Secretary of State showing
that the articles have been filed and the Developer is a limited liability company, duly and
legally formed under California law; (ii) a certified copy of the Developer's operating
agreement, signed by all members, (A) confirming that the purpose of the entity is to
construct and operate the Project, (B) authorizing the Developer to enter into and perform
this Agreement,(C) authorizing the designated managing member of the Developer to
execute this Agreement and any and all documents necessary to carry out the purposes of
this Agreement,(.D) setting forth the members of the Developer and their ownership
interest; (E) a tax identification number for the Developer, and (F) evidence that the
Developer is adequately capitalized.
2.3 Toxics Reports. The Developer shall have delivered a certification to the
Agency confirming that it has accepted all conditions of the Master Development Site,
including any Acquisition Parcels, that are revealed in the Toxics Reports(as that tern is
defined in Section 3.4 below) and that the Developer has had.sufficient opportunity to
notify the Agency of any objections to any environmental condition disclosed in the
Toxics Reports. Notwithstanding the foregoing, the Developer may condition its
certification on the requirement that the Agency obtain and deliver "no further action"
letters as to one or more Agency Parcels or Acquisition Parcels in the Master
Development Site, as provided in paragraph 4.2.2 below.
2.4 Loan Commitments. On or before the Commencement Date for Phase 1,
the Developer shall have provided one or more construction loan commitments from
qualified conventional commercial lenders in sufficient amounts for the Developer to
complete the Developer Improvements in Phase 1. On or before the Commencement Date
for Phase H, the Developer shall provide one or more construction loan commitments
from qualified conventional commercial lenders in sufficient amounts for the Developer to
complete the Developer improvements in Phase 11; provided that the Executive Director
may, in his or her discretion, accept at that time a construction loan commitments) for
only the Developer Improvements on the Office.Building No. 2 Parcel. Any conditions to
the loan commitments must be acceptable to the Agency Board, in its sole discretion. The
commitments must be signed by the lenders and accepted in writing by the Developer.
The construction loan(s) for Phased must, in the aggregate, be not less than
$25,000,000.00. The construction loan(s) for Phase 11 must be not less than an amount
the Agency reasonably determines will be sufficient to complete the Developer
Improvements for Phase If or, if applicable as provided above, the Developer
Improvements for the Office Building No. 2 Parcel.
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2.5 Reciprocal Pedestrian Access Rights. The Master Plan CC&R's shall
include provisions that each owner of property in the Master Development Site, including
the State, and its respective employees, contractors, tenants and invitees, will have a right
for pedestrian travel on, over and-across (i) the Common Area, and (ii) the walkways
designated for public use on and/or around the Courthouse Parcel, the State Parking
Parcel, the Lahvosh Bakery Parcel and the various Development Parcels, as shown on
Exhibit A. Also, any portion of the Common Area identified for vehicular access and use
must be identified in the Master.Plan CC&R's. The condition of this subsection 2.5 will
be satisfied for each Phase by execution and recording of the Master Plan CC&R's
containing such provisions on the real property in that Phase, as provided in Subsection
7.10,
2.6 Credit Reports and Financial Statements. On or before the date the
Council and the Agency Board approve this Agreement,the Developer shall have
provided credit reports, financial statements and financial data, reasonably satisfactory to
the Agency Board or its designee, evidencing the Developer's financial ability to
complete the Project.
3 CONDITIONS PRECEDENT TO DEVELOPER'S OBLIGATIONS. The
following are conditions precedent to the effectiveness of this Agreement against the Developer
as to Phase I or Phase 11, as applicable. Until the conditions are satisfied as to Phase 1 or Phase 11,
the Developer is not obligated to take any action under this Agreement as to that Phase. These
conditions must be satisfied by the time stated or, if no time is stated, then within 45 days after
the Commencement Date for the applicable Phase. The Developer, in writing, may, waive any
condition or agree to extend the time for satisfaction in writing; except that other than the
condition specified in subsection 3.4 below, such waiver or extension shall be effective only if the
waiver or extension has been consented to in writing by the Agency. Alternatively, the Developer
may terminate this Agreement as provided herein if there is failure of a condition.
3.1 Funding. Within 45 days after the Commencement Date for Phase 1, the
Agency will have identified potentially Available Funds of at least $1,200,000.00 for its
costs related to Phase 1. Within 45 days after the Commencement Date for Phase 11, the
Agency will have identified potentially Available Funds in amounts the Agency
reasonably determines are necessary for its costs related to Phase 11.
3.2 Loan Commitments. On or before the Commencement Date for Phase I,
the Developer shall have obtained one or more construction loan commitments from
qualified conventional commercial lenders in sufficient amounts for the Developer to
complete the Developer improvements in Phase i. On or before the Commencement Date
for Phase 11, the Developer shall have obtained one or more construction loan
commitments from qualified conventional commercial lenders in sufficient amounts for
the Developer to complete the Developer improvements in Phase 11; provided that the
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Executive Director may, in his or her discretion, accept at that time a construction loan
conimitment(s) for only the Developer improvements on the Office Building No. 2 Parcel.
Any conditions to the loan commitments must be acceptable to the Agency Board, in its
sole discretion. The commitments must be signed by the lenders and accepted in writing
by the Developer. The construction loan(s)for Phase I must, in the aggregate, be not less
than $25,000,000.00. The construction loan(s)for Phase 11 must be not less than an
amount the Agency reasonably determines will be sufficient to complete the Developer
Improvements for Phase 11 or, if applicable as provided above,the Developer
Improvements for the Office Building No. 2 Parcel.
3.3 Reciprocal Pedestrian Access Rights. The Master Plan CC&R's shall
include provisions that each owner of property in the Master Development Site, including
the State, and its respective employees, contractors, tenants and invitees,will have a right
for pedestrian travel on, over and,.across (i) the Common Area, and (ii) the walkways
designated for public use on and/or around the Courthouse Parcel, the State Parking
Parcel, the Lahvosh Bakery Parcel and the various Development Parcels, as shown on
Exhibit A. Also, any portion of the Common Area identified for vehicular access and use
must be identified in the Master Plan CC&R's. The condition of this subsection 3.3 will
be satisfied for each Phase by execution and recording of the Master Plan CC&R's
containing such provisions on the real property in that Phase, as provided in subsection
7.10.
3.4 Toxics Reports. The Agency shall have obtained and delivered the
following to the Developer: (i) all environmental site assessments and updates thereof,
prepared and/or performed with respect to any Agency Parcel or Acquisition Parcel, the
Lahvosh Bakery Parcel, the Courthouse Parcel and the State.Parking Parcel to the extent
such reports are in the possession or reasonable control of the Agency or were performed
by, for the benefit of or at the request of the Agency; and (ii) all notices and non-
confidential written communications of any nature received or sent by the Agency from or
to any governmental entity.in connection with or relating to any Environmental Laws or
the environmental condition, circumstance or condition of any Agency Parcel or
Acquisition Parcel, the Lahvosh Bakery.Parcel, the Courthouse Parcel and the State
Parking Parcel (collectively, the "Toxics Reports"). The Developer acknowledges having
received the following Toxics Reports from the Agency:
3.4.1 Program EIR No. 2001-01, Convention Center Redevelopment
Project Area Downtown Prestige-Mixed Use Development, October
2, 2001;
3.4.2 Mitigated Negative.Declaration/Environmental Assessment No. C-
02-061, November 19, 2002;
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3.4.3 Categorical Exemption, State of California.ICC and Fifth District
Court of Appeal, April 2, 2003;
3.4.4 Phase I Environmental Site Assessment prepared by BSK
Engineering, April 26, 2002.
4 CONDITIONS PRECEDENT TO COMMENCEMENT OF PARTIES'
PREDISPOSITION ACTIVITIES.
4.1 Conditions to Agency's Predisposition Obligations. The following are
conditions precedent to the Agency's obligations to acquire any Acquisition Parcel and to
commence its predisposition obligations specified in Section 5 below as to any
Acquisition Parcel or Agency Parcel in Phase I or Phase 11 of the Master Development
Site. The Agency, in writing, may waive any such condition; except that such waiver will
be effective only if the waiver has been consented to in writing by the Developer. Any
waiver will apply only as to the obligation to pursue the Agency's predisposition
obligations for the Agency Parcel or Acquisition Parcel to which the condition pertains.
Alternatively, the Agency may terminate this Agreement as provided herein if there is
failure of any of the following conditions.
4.1.1 Satisfaction of Conditions in Sections 2 and 3. The conditions in
Sections 2 and 3 have been satisfied or waived by the Party(ies)who are to benefit
from the conditions.
4.1.2 No Action Letter and/or other. Assurances. The Agency will
have received and obtained the Developer's approval of any required "no further
action" letter related to a particular Acquisition.Parcel pursuant to paragraph 4.2.2
below.
4.1.3 Financing Plan. The Developer shall have obtained approval of its
Financing Plan for the applicable Phase by the Agency, through its Executive
Director or Redevelopment Administrator, in accordance with the following .
procedures:
The Developer shall have submitted its Financing Plan to the Agency for Phase 1
or Phase 11, as applicable at the time specified in the Schedule of Performance
(Exhibit.D). Within 30 business days after receiving the Financing Plan, the
Agency, through its Executive Director or Redevelopment Administrator, will
review the Financing Plan and approve it or disapprove it. If the Agency
disapproves the Financing Plan, it will specify the reason for disapproval and ask
the Developer to provide any additional information the Agency may need to
approve the Financing Plan. The Developer shall promptly submit such additional
information. Within 30 business days after receiving the additional information,
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the Agency, through its Executive Director or Redevelopment Administrator, will
review the additional infonnation and, based thereon, will approve or disapprove
the Financing.Pian as above.
After the Agency has approved a Financing Plan, the Developer shall submit any
proposed Material Change to the approved Financing Plan for Phase I or Phase II
to the Agency for review and approval. Until the Agency approves the Material
Change, the Developer shall comply with the previously approved Financing Plan.
If the Developer wants to make a Material Change to the minimum loan
commitments or maximum liens, the modification must be approved by the
Agency Board or its designee.
The Agency's review and approval of the Financing Plan are solely to confine
that the Developer has or will have the financial resources to complete the
Developer Improvements for the Phase being developed and to fulfill the
redevelopment objectives of the Pian and the Law. The Agency's review and
approval are not approval or endorsement of the Developer Improvements or for
any other purpose.
4.1.4 Condition of Title. The Agency and the Developer shall have
approved the condition of title of any.Acquisition.Parcel in the Phase being
developed,as provided in paragraph 4.2.4 below. .
4.2 Conditions to Developer's Predisposition Obligations. The following
are conditions precedent to the Developer's obligations to commence its predisposition
obligations specified in Section 6 below as to any Development Parcel. The Developer, in
writing, may waive any such condition; except that such waiver will be effective only if
the waiver has been consented to in writing by the Agency. Any waiver will apply only as
to the obligation to pursue the Developer's predisposition obligations for the .Development
Parcel(s) to which the condition pertains. Alternatively, the Developer may terminate this
Agreement as provided herein if there is failure of any of the following conditions.
4.2.1 Satisfaction of Conditions in Sections 2 and 3. The conditions in
Sections 2 and 3 have been satisfied or waived by the Party(les)who are to benefit
from the conditions.
4.2.2 No Action .Letters and/or Other Assurances. For any Agency
Parcel or Acquisition Parcel which will be included in a Development Parcel and
which is contaminated and for which the Developer requests a "no further action"
letter pursuant to subsection 2.3., the Agency shall have received and delivered to
the Developer a"no further action" letter from the Health Department of the
County of Fresno and/or from the Regional Water Quality Control Board
("RWQCB"), as applicable. The letters will assure the Agency and the Developer
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that neither the Health Department nor RWQCB requires further remedial
environmental action on the Agency Parcel or Acquisition Parcel,
The Developer;at its election, may require receipt of"no further action" letters for .
all contaminated Agency Parcels and Acquisition Parcels in Phase I or Phase 11 as
a condition precedent to its obligation to commence its predisposition activities for
any Development Parcel in that Phase.
4.2.3 .Financing Plan Approval. The Developer's Financing Plan for
Phase 1 or Phase lI, as applicable, shall have been approved by the Agency in
accordance with paragraph 4.1.3.
4.2.4 Condition of Title. The Agency and the Developer shall have
approved the condition of title of the assembled Development Parcels in Phase 1 or
Phase 11, as applicable, according to the following procedures:
Within 45 days after the Effective Date, the Agency will deliver to the Developer
copies of the most recent CLIA or other title reports in the Agency's possession
for all Agency Parcels owned by the Agency in Phase I or Phase 11 as of the
Effective Date. Also, within 15 days after obtaining a preliminary title report for
acquisition of any Acquisition Parcel in Phase 1 or Phase Il, the Agency will
deliver of copy of such report to the Developer. The Developer, within 15
business days after receiving these title reports, shall notify the Agency of any
exceptions to title on the Agency Parcels or Acquisition Parcels shown in such
reports("Exceptions") that the Developer will object to having included in the
affected Development Parcel(s). However, the Developer may not object to the .
.following Exceptions: (i) the Plan, (ii) this Agreement, (iii) real property taxes and
assessments not yet due, or(iv) the Master Plan CC&R's. If the Developer
objects to any Exceptions shown in such reports., the Agency and the Developer
shall promptly meet and confer in good faith to review the documents underlying
such Exceptions and agree on removal or other resolution of the Exceptions prior
to assembly of the affected Development Parcel(s). Such resolution may include
removal of the Agency Parcel or the Acquisition Parcel from proposed boundaries
of the affected Development Parcel and reconfiguration of the Development
Parcel.
Thereafter, upon assembly of a Development Parcel within Phase I or Phase 11, the
Agency will obtain and deliver to the Developer a copy of a new preliminary title
report (the "Report") and related survey in support of an ALTA Owner's Policy of
title insurance for that Development Parcel, with, as.the Developer may request,
copies of the documents underlying any Exceptions shown in such Report. The
Developer, within 15 business days after receiving the Report, shall deliver notice
of any objections to any new Exceptions or Exceptions that were not resolved by
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the Agency and the Developer as described in the preceding paragraph. The
Developer may not object to the following Exceptions: (i) the Plan, (ii) this
Agreement, (iii)real property taxes and assessments not yet due, (iv) Exceptions
that were resolved Parties as described in the preceding paragraph, or(iv) the
Master Plan CC&R's. The Developer's failure to object within the 15 days will be
deemed approval of title. The Developer shall pay the costs of the Report and the
related survey as needed to support an ALTA Owner's Policy. Notwithstanding
the foregoing, the Developer, at its election, may waive in writing the requirement
of a Report and-survey in support of an ALTA Owner's Policy and instead receive
and review a Report in support of a CLTA Owner's Policy.
If the Developer objects to any Exception in the Report, the Parties will.promptly
confer to resolve the title issue. The Parties may terminate or modify this
Agreement as to an individual Development Parcel for the inability to remove, or
the delay in-removing, an Exception on a Development Parcel if the Parties agree,
reasonably and in good faith, that the.Exception will substantially interfere with
development of the particular Development.Parcel as proposed, or that the
Exception will impair marketable title to Development Parcel.
If the Parties determine to terminate or modify this Agreement as to a
Development Parcel due to the inability to remove or delay in removing an
Exception, as provided in the preceding paragraph, the Parties also may terminate
or modify this Agreement as to additional Development Parcels in Phase I or
Phase 1I,as applicable, if,the Parties agree, reasonably and in good faith, that the
Exception will substantially interfere with the unified development goals of the
Master Plan for that Phase, or that the Exception will impair marketable title to
those additional Development Parcels.
5 AGENCY PREDISPOSITION ACTIVITIES. After the Parties have satisfied
or have given written waivers for the conditions precedent in Sections 2; 3 and 4 for the Phase
being developed, the Agency will begin and/or complete the following predisposition activities as
to the Development Parcels in that Phase for which the predisposition conditions specified in
Section 4 have been satisfied.
5.1 Acquisition .Parcels. The Agency will use its best efforts to acquire the
Acquisition Parcels in Phase I or Phase 11 on or.before the date specified in the Schedule
of Performance for that Phase. The Agency may acquire property through negotiated
purchase, gift or other means provided by law. The Agency has the sole discretion in
determining whether to hold hearings or to adopt a resolution of necessity authorizing it to
acquire property by its power of eminent domain. Nothing in this Agreement obligates
the Agency to adopt a resolution of necessity with respect to any Acquisition Parcel.
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5.2 Relocation. The Agency will be responsible for,relocating tenants and
owners from an Acquisition Parcel, and paying relocation costs, as and when required by
law.
5.3 Historic Structures. The Parties acknowledge that, as of the Effective .
Date, the Agency is responsible to relocate all historic structures off the Acquisition
.Parcels and Agency Parcels in Phase I of the Master Development Site in accordance with
requirements of the Mitigated Negative Declaration adopted by the Council on November
19, 2002, in connection with its approval of Conditional Use Permit No. C-02-061 for the
Project. The Agency will take all steps to complete relocation of.the historic structures in
accordance with the requirements of the EIR.
6 DEVELOPER'S PREDISPOSITION ACTIVITIES. After the Parties have
satisfied or have given written waivers for the conditions precedent in Sections 2, 3 and 4 for the
Phase being developed, the Developer shall perform and complete the following predisposition
activities as to all Development-Parcels, including the Common Area, in that Phase.
6.1 Reason for,and Timing of,Due Diligence Inspection. The Agency
will convey all Development Parcels to the Developer"AS IS,"with all faults. The
Developer shall complete its due diligence inspection of all Agency Parcels in Phase i
within 30 days after the Commencement Date for Phase I, and shall complete its due
diligence inspection of each Acquisition Parcel in Phase I within 30 days after the Agency
acquires title or possession to that Acquisition .Parcel.
The Developer shall separately complete its due diligence inspection of the Agency
Parcels that will be included in a Development Parcel in Phase ii within 30 days after the
Agency has acquired title or possession to the first Acquisition Parcel that is to be
assembled and conveyed as part of the same Development Parcel. The Developer shall
complete its due diligence inspection of each Acquisition .Parcel in Phase If (including an
Acquisition Parcel described in the preceding sentence) within 30 days after the Agency
acquires title or possession to that Acquisition Parcel.
6.2 Developer's Inspection. The Developer will be solely responsible, at its
expense, to investigate and determine all soil, seismic and other surface and subsurface
conditions of real property in Phase 1 or Phase 11 that will be part of a Development
Parcel, including the Common Area, and the suitability thereof-for development as
provided hereunder. The Developer's responsibility and due diligence includes, but is not
limited to, determining the presence of Hazardous Materials,except that the Developer
will have no responsibility to determine the presence or absence of Hazardous Materials
or other soil, seismic and other surface and subsurface conditions in or on the State
Parking Parcel or the Courthouse Parcel. The Developer will promptly provide the
Agency with a copy of all reports and test results. The Developer will indemnify, defend
and hold the Agency harmless from any damages or claims for personal injury, death,
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property damage or breach of contract caused by the Developer or its employees or
contractors in performing any inspection, investigation or other work under this
subsection 6.2; provided that the Developer will not be obligated to indemnify, hold
harmless or defend from any diminution in real property value to the extent caused by any
preexisting condition, not caused or contributed to by the Developer, that may be
disclosed by the Developer's inspection, investigation or other due diligence work or
investigation under this subsection 6.2.
6.3 . Access to Parcels. The Agency will grant the Developer and its
designated representatives access to the Agency Parcels in Phase I and Phase 11 at
reasonable times, on 24 hours' prior notice, for purposes of conducting due diligence
inspections and investigations. Additionally, after'the Agency acquires ownership or-
possession of an Acquisition Parcel that will comprise all or part of a Phase I or Phase It
Parcel, the Agency will grant the Developer and its designated representatives access to
such Acquisition Parcel at reasonable times, on 24 hours' prior notice, for purposes of
conducting due diligence inspections'and investigations. To pen-nit the Developer access
to an Acquisition Parcel at the earliest possible time, the Agency will use best efforts,
when negotiating a purchase agreement for the Acquisition Parcel, to help the Developer
in obtaining the seller's permission for the Developer to enter the property for inspection.
The Developer also may obtain consent for access directly from any property owner.
6.4 Environmental Remediation. If the Developer's inspection of an
Acquisition Parcel or an Agency Parcel comprising part of a Development Parcel reveals
any Hazardous Materials or environmental conditions requiring remediation, the
Developer will promptly notify the Agency. The Parties will have 30 days after the notice
to reach a written agreement regarding the allocation of any remediation costs. If the
Parties cannot reach an agreement within the 30 days, (i) either Party may thereafter
terminate this Agreement as to that Development Parcel by 30 days' notice to the other, in
which event.the Development Parcel will be severed from this Agreement; or(ii) the
Parties may tenninate this Agreement as to that Development.Parcel and as to any
additional Development Parcels if the Parties detennine, reasonably and in good faith, that
the Hazardous Materials or other environmental condition requiring remediation will
substantially interfere with the development goals of such Development Parcels as set
forth in the Master Plan, or will impair marketable title to such Development Parcels, in
which event those Development Parcels will be severed from this Agreement. Any
remediation will be pursuant to a remedial action plan, if needed, approved by the
governmental agencies having jurisdiction. The work will be performed according to
applicable Environmental Laws and any governmental requirements.
6.5 Parcel Map Preparation and Application Fees. Immediately upon the
Commencement Date for Phase I or, if the Agency gives prior written approval, upon the
date the Agency has acquired title to or possession of all Acquisition Parcels in Phase 1,
whichever is later, the Developer, at its sole cost, shall prepare the tentative Parcel Map to,
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establish each Development Parcel and the portion of the Common Area in Phase I as
separate legal parcels and shall take all steps to finalize and record the Parcel Map.
Immediately upon the Commencement Date for Phase 11 or upon the date the Agency has
acquired title to or possession of all Acquisition Parcels in Phase II, whichever is later, the
Developer, at its sole cost, shall prepare a tentative Parcel Map to establish each
Development Parcel, the Lahvosh Bakery Parcel and the portion of the Common Area in
Phase 11 as separate legal parcels and shall take all steps to finalize and record the Parcel
Map.. The Parcel Map for Phase 1.1 will include any changes to the boundaries of the
Surface Parking Parcel created by the Parcel Map for Phase i necessary to create the
Office Building No. 2 Parcel and accommodate Office Building No. 2. The Developer
will be responsible for all fees and costs associated with preparing, tiling, processing and
obtaining approval of the Parcel Map for each Phase.
The Agency will cooperate with the Developer in applying for, processing and obtaining
approval of the Parcel Map for either Phase, and will sign or authorize, as a holder of
record interest, any application, certificate or other document reasonably necessary to
obtain such approval.
7 CONDITIONS PRECEDENT TO CONVEYANCE, ACQUISITION,
DELIVERY AND ACCEPTANCE OF.POSSESSION OF DEVELOPMENT PARCELS.
The following are mutual conditions precedent to the Agency's obligations to convey or deliver
possession of the individual .Development Parcels in either Phase I or Phase 11 to the Developer,
and the Developer's obligations to acquire and accept delivery of such Development Parcels. The
Parties may, by mutual written agreement, waive any of these conditions. Alternatively, if there
is failure of any of these conditions, either Party may terminate this Agreement as to that
Development Parcel as provided herein.
7.1 Conditions in Sections 2 Through 4. The Developer and the Agency,
respectively, shall have satisfied or waived the conditions in Sections 2, 3 and 4 as to that
Development Parcel.
7.2 Predisposition Activities. The Agency and the Developer shall have
completed their respective predisposition activities under Sections 5 and 6 as to that
Development Parcel.
7.3 Agency Rights to Development Parcel; Acquisition of Parcels. With
respect to a proposed Development Parcel in either Phase i or Phase 11 that includes one or
more Acquisition Parcels, the Agency shall have obtained irrevocable rights to acquire or
possess the Acquisition Parcels included within the Development Parcel, whether by
negotiated purchase, gift or other.means provided by law, subject to the limitations in
subsection 13.1. if the Agency, after using its best efforts, .is unable to acquire title or
possession to any Acquisition Parcel comprising a Development Parcel in time to close
Escrow or deliver possession by the Outside Date for that Development Parcel, the
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Agency and the Developer may by written agreement or amendment to this Agreement: (i)
extend the Outside Date for Closing on the Development Parcel, (ii)sever any unacquired
Acquisition Parcel and proceed with the Project on the remainder of the Development
Parcel, or(iii) terminate this Agreement as to that Development Parcel. Alternatively, the
Parties may terminate this Agreement as to that Development Parcel and additional
Development Parcels in the applicable Phase due to the inability of the Agency to obtain
irrevocable rights to acquire or possess an Acquisition Parcel that comprises part of such
Development Parcel in time to close Escrow or deliver possession by the Outside Date if
the Parties determine, reasonably and in good faith, that lack of such Acquisition Parcel
will substantially interfere with the unified development goals for the applicable Phase as
set forth in the Master Plan, or that development of the applicable Phase without
ownership or possession of that Acquisition Parcel will impair marketable title to the the
Development Parcels in that Phase. if the property to which the Agency has acquired title
to or irrevocable rights is reasonably sufficient to proceed with the Developer
Improvements on the Development Parcel(s), but the Developer requests to,terminate this
Agreement as to that or those Development Parcel(s), then as a condition of the Agency's
agreement to the termination, the Developer will indemnify, defend, and hold the Agency
harmless from any claim for precondemnation or inverse condemnation damages arising
out of the Agency's acquisition efforts. If the Developer fails to request tennination
within 30 days after the Agency notifies it of the Agency's inability to acquire an
Acquisition Parcel, the Developer will be deemed to have elected to sever the unacquired.
Acquisition Parcel and to proceed with the Developer improvements on the balance of the
Development Parcel(s).
7.4 Loan Closing. For each Development Parcel in Phase I or Phase 11, the
Developer's constriction lender shall have opened an escrow for the construction loan for
the Developer.lmprovements on the Development Parcel to be conveyed that will close
concurrently with the Closing of the Escrow on that Development Parcel.
7.5 Governmental Actions. The matters specified below, each requiring
governmental action, shall have been completed or approved. These matters are in
addition to and without limitation.on any other governmental permits, entitlements or
approvals required for development of the Project, including those specified in subsection
9.4. Governmental action may be legislative, quasi-judicial or otherwise discretionary in
nature. Neither the Agency nor the City can take action before environmental assessment
of the Project on the Master Development Site and any individual Development Parcel
under CEQA is completed. Neither the Agency nor the City can commit in advance to
approve any matter. Neither the Agency, the City nor any other public or governmental
entity will be liable to the Developer or any other person if it fails to grant any
discretionary approval.
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7.5.1 Parcel Map. The final .Parcel Map creating the Development
Parcels and the Common Area in Phase I or Phase 11, as applicable, shall have been
approved and recorded.
7.5.2 Conditional Use Permit (CUP).. For Phase 1, CUP No. C-02-061,
including (if necessary) any amendment thereto, shall have been approved and is in
effect, authorizing a unified mixed-use project, including mid-rise/high-rise office
buildings, consisting of Office Building No. 1, the Surface Parking Facilities, the
Courthouse Facilities, the State Parking Facilities and related improvements and
facilities. For Phase 11, a conditional use permit shall have been approved,
authorizing a unified mixed-use project, including mid-rise/high-rise office
buildings, consisting of Office Building No. 2, Office Building No. 3 (to be
constructed on the Surface Parking Parcel), the Armenian Cultural Center, the
Lahvosh Bakery Project, the Parking Structure and related improvements and
facilities. The CUPs will also authorize, pursuant to Section 12-407.5 of the Fresno
Municipal Code, modification of the property development standards for a unified
commercial project.
7.5.3 Landscape Permit; Site Plan Review. A landscape permit and site
plan review shall have been approved for Phase I or Phase 11, as applicable,
including a landscape plan for landscaping in the portion of the Common Area in
that Phase.
7.5.4 Vacations/Abandonments. Vacation or abandonment of the Santa
Clara Street right-of-way between N and O Streets, the Santa Clara Street right-of-
way between M and N Streets, that portion of the N Street right-of-way within the
boundaries of the Master Development Site, and any other public alley or public
right-of-.way, as needed for development of the Project on the Master Development .
Site, shall have been approved and recorded. The vacations may, at the discretion
of the Agency, be recorded and become effective in phases corresponding to the
Commencement Dates for Phase 1 and Phase 11.
7.5.5 Easements. Public easements shall have been modified or
abandoned as needed to develop the Project on the Master.Development Site.
7.5.6 CEQA Review. The E1R shall have been completed and certified in
accordance with the California .Environmental Quality Act.
7.5.7 Environmental Clearances. Environmental clearances shall have
been received from regulating agencies for any property within the Master
Development Site that is found to be contaminated with Hazardous Materials.
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7.6 Notice of Readiness to Convey and Certificate of Readiness to Proceed.
On or after the Commencement Date for Phase I or Phase 11., as applicable, the Agency will
notify the Developer when it is prepared to convey and/or deliver possession of any
Development Parcel in that Phase to the Developer. Not later than 30 days before the date
specified in the Schedule of Perfonnance for conveyance of a particular Development
Parcel, the Developer will certify to the Agency in writing that the Developer is ready to
close escrow and construct the Developer Improvements on the Development Parcel,
provided the Agency is prepared to convey or deliver possession. The Developer's
certification will affirm that,as to that Development Parcel: (i) no financial or other event
has occurred that would impair the Developer's ability to complete the Developer
Improvements,(ii) the Developer is ready, willing and able to meet its obligations under
.this Agreement as to that Development Parcel, and (iii) all conditions precedent to the.
Developer's performance are satisfied.
7.7 Performance and Payment Bonds. The Developer shall have delivered
labor and material bonds and performance bonds covering the Developer Improvements to
be constructed on the Development Parcel, issued by an insurance company meeting the
criteria for the Developer's insurance hereunder. The Developer may satisfy this condition
by having the bonds provided by its contractor(s) for construction of the.Developer
Improvements. In either case, the bonds will each contain a penal sum at least equal to
100%of Developer's estimated construction costs for the Developer Improvements shown
-in the Scope of Development (Exhibit E). The bonds will name the Agency as co-obligee..
On request of the Developer, the Agency may consider evidence other than performance .
and payment bonds of the Developer's ability to complete the Developer Improvements.
Such evidence must be reasonably satisfactory to the Agency.
7.8 Evidence of Insurance. The Developer shall have on file with the Agency
current certificates of insurance for all insurance which this Agreement requires the
Developer to maintain, evidencing that all required insurance is in effect.
7.9 No.Default. The Developer is not then in Default of this Agreement, and all
representations,and warranties herein of the Developer are true and correct in all material
respects. .
7.10 Master Plan CC&.It's. Prior to conveyance of any Development Parcel in Phase 1,
but no later than 45 days after the Commencement Date for Phase 1; the Master Plan CC&R's, in
the forin approved by the Agency and the State's Department of General Services, shall have been
executed by the Developer and delivered to the Agency for recordation on all real property in
Phase l and/or Phase 11,as applicable. The executed Master Plan CC&R's will be recorded on
each Development Parcel and any portion of the Common Area in Phase I or Phase 11 by the
Escrow Holder as a condition of close of Escrow and'conveyance'of that Development Parcel or
portion of the Common Area to the Developer.
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8 DISPOSITION OF DEVELOPMENT PARCELS.
8.1 Sale and Purchase. As to each Development Parcel, after the Parties have
satisfied or waived all the conditions precedent set forth in Sections 2, 3, 4 and 7, have
completed all predisposition activities set forth in Sections 5 and 6, and have satisfied all
requirements of the Law for the Agency to sell property acquired with tax increment fiends,
the Agency will sell, and the Developer will purchase, the Development Parcels,including
the Common Area, in Phase 1 and.Phase 11 according to this Section 8.
8.1.1 Cultural Center Parcel.
8.1.1.1 In addition to the requirements in.subsection 8.1, the Agency
will not sell, and the Developer will have no right to purchase, the Cultural Center
Parcel until the Developer(i) has submitted, and the Agency has approved pursuant
to subsection 9.2, final construction plans, landscaping plans, finish grading plans,
drawings, elevations and other development-related items (as specified in
subsection 9.2) for the Armenian Cultural Center, and(ii) has demonstrated to the
Agency's reasonable satisfaction that construction loan(s) and/or other funding
sufficient to construct the Armenian Cultural Center in accordance with the
approved development-related items is or will-be available.
8.1.1.2. Notwithstanding subparagraph 8.1..1.1:
(A) The Parties acknowledge that the proposed Armenian
Cultural Center 'is to be financed in part by, and built for the use of, the
Armenian Cultural Foundation,.Inc. (the"ACF"), pursuant to the terms of a
separate agreement between the Developer and the ACF. Therefore, in lieu
of purchasing the Cultural Center Parcel and developing the Armenian
Cultural Center itself, the Developer may request that the Agency approve a
transfer and assignment to the ACF of. the Developer's right to acquire the
Cultural Center Parcel and develop the Armenian Cultural Center, in
accordance with and subject to subsection 16.2. If the Agency approves
such transfer and assignment pursuant to subsection 16.2, and if ACF
purchases the Cultural Center Parcel from the Agency for development of
the Armenian Cultural Center, the original Developer, Old Armenian Town,
LLC, will be relieved of any obligation to make the payments specified in
subsection 14.1 (property tax increment and in-lieu-of property tax
increment payments) with respect to the Cultural Center Parcel.
(B) If the ACF detennines that it will not finance or use the
Armenian Cultural Center, the Developer shall notify the Agency and
propose alternative Developer Improvements, consistent with the Master
Plan and the Master Plan CC&R's, to be constructed on the Cultural Center
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Parcel. If the Agency approves such alternative Developer Improvements,
the Parties shall promptly negotiate and enter into an appropriate
amendment to this Agreement as provided in subsection 21.15.
8.2 Purchase Price. The purchase price of each Development Parcel in.Phase I
and Phase I1 will be-two dollars ($2.00) per gross square foot, including all vacated public
street rights-of-way and easements. The purchase price will represent and be no less than
the reuse value of each`Development Parcel, at the use and with the covenants, conditions
and development costs set forth in this Agreement. The Developer will pay the full
purchase price (calculated at$2.00 per gross square foot) for each Development Parcel in
cash or certified check, deposited with the Escrow Holder, within ten business days after
delivering the Developer's certificate of readiness to proceed for that Development Parcel
(see subsection 7.6).
8.3 Escrow. The following escrow procedures shall apply to purchase of
each Development Parcel in either Phase I or Phase 11:
8.3.1 Opening Escrow. Within five business days after receiving the
Developer's certificate of readiness to proceed with a Development Parcel
(subsection 7.6), the Parties will establish an Escrow with the Escrow Holder to
accomplish the sale and purchase of the Development Parcel.
8.3.2 Escrow Instructions. This Agreement constitutes the initial joint
escrow instructions.of the Developer and the Agency for sale and purchase of each
Development Parcel. If necessary to accomplish Closing, the Parties will sign
supplemental escrow instructions. If there is any inconsistency between the
supplemental escrow instructions and this Agreement, the provisions of this
Agreement will control as.between the Parties. The Parties will sign such other and
further documents as necessary or appropriate to close.the Escrow and otherwise
carry out this Agreement.
The Parties will take all actions necessary to close each Escrow in the shortest
possible time. The Agency.will not transfer any fire or casualty insurance policies
and will cancel its own policies or delete the property from its policies after each
Closing. The Escrow Holder may deposit all funds received in the Escrow(s) with.
other escrow funds in a general escrow account, and may transfer the funds to any
other escrow trust account in any state or national bank doing business in
California.
8.3.3 Prorations. The Escrow Holder will prorate all ad valorem taxes
and assessments, if any, as of Closing, between the Agency and the Developer. If .
the parties cannot ascertain then-current taxes and assessments, the Escrow Holder
will apportion the taxes and assessments based on the amount of the most recent
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statement of taxes and assessments. The Escrow Holder will adjust the proration,if
necessary, within 30 days after finding out the actual amount of taxes and
assessments.
8.3.4 Escrow and Title Costs. The Agency will pay all escrow fees, costs
for CLTA owner's policy of title insurance, recording fees and documentary stamp
taxes to convey the Development.Parcel to the Developer. The.Developer will pay
any costs for the ALTA Owner's Policy of title insurance pursuant to paragraph
4.2.4. or any other endorsements in excess of the standard CLTA owner's policy
that the Developer may request. The Agency and the Developer will pay any other
costs associated with the Escrow according to the custom and practice in Fresno
County, The Developer will be solely responsible for any costs associated with
obtaining and closing the loans to the Developer or obtaining any other source of
funds under the Financing Plan approved by the Agency.
8.3.5 Close of Escrow and Contingencies to Close. Each Escrow must
close by the Outside Date for that Escrow specified in the Schedule of Performance,
unless the parties mutually agree to extend the time for Closing. The Escrow
Holder will close each Escrow and the Agency will convey each Development
Parcel to the Developer when, and only when, the following have occurred:
8.3.5.1 Satisfaction of Conditions and Completion of
Predisposition Activities. The Parties have satisfied the conditions
precedent in Sections 2, 3, 4, and 7 and have completed their respective
predisposition obligations in Sections 5 and 6, or the benefitting Party has
waived the conditions or obligations in writing.
8.3.5.2 Concurrent Close of Construction Financing or Estoppel
Certificate. The Agency and the Escrow Holder have received a written
commitment from the Developer's construction lender to close and fund the
Developer's construction financing for a Development Parcel concurrently
with the Closing of the Escrow in which the Agency conveys that
Development Parcel to the Developer. If the Developer's construction
financing is for more than one Development Parcel, then as a condition
precedent to each subsequent Closing, the Developer will deliver an
estoppel certificate from its construction lender that Developer is
perforn-iing under the loan agreement(s), is not in default of the
agreement(s), and that the loan continues in effect.
8.3.5.3 .Recording this Agreement. If this Agreement or a
memorandum of this Agreement has not already been recorded, the Escrow
Holder is prepared to record this Agreement or memorandum of this
Agreement on the entire Master Development Site at the close of the Escrow
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in which the Agency conveys the Office Building No. I Parcel in .Phase I to
the Developer.
8.3.5.4 Recording Master.Plan CC&R's. If the Master Plan
CC&R's have not been recorded already,the Escrow Holder is prepared to
record the executed Master Plan CC&R's, including the-provisions for
reciprocal pedestrian access rights required by subsections 2.5 and 3.3
above, (i) on all real property in Phase I at the close of the Escrow in which
the Agency conveys the Office.Building No. 1 Parcel to the Developer, (ii)
on any Development Parcel in Phase 11, including associated portions of the
Common Area, at the close of the Escrow for conveyance of that
Development Parcel.
8.3.5.5 Grant.Deed. The Escrow Holder is prepared to record a
Grant Deed for the conveyance of the Development Parcel, substantially in
the form in attached Exhibit F.
8.3.5.6 Title Policy. The Escrow Holder is prepared to issue an
ALTA Owner's Policy of title insurance or, if elected by the Developer, a
CLTA standard coverage title insurance policy, to the Developer insuring
the Developer's title to the Development Parcel with the Exceptions
consented to or permitted as provided in paragraph 8.4.8. The Escrow
Holder will provide the Agency with a duplicate copy of the policy it issues.
8.3.5.7.Deposit of Purchase Price. The Developer has deposited
into Escrow the purchase price for that Development.Parcel.
8.3.6 Termination of Escrow. If an Escrow is not in condition to close
by the Outside Date for that Escrow, then either Party not then in Default of this
Agreement may give notice and demand for the return of its money or property and
terminate this Agreement as to that Development Parcel If either Party gives
notice and makes a demand, the Escrow will not terminate until five business days
after.theEscrow Holder delivers copies of the notice and-demand to the other Party.
If the other Party objects within the five days, the Escrow Holder may hold all
papers and documents until instructed by a court of competent.jurisdiction or by
mutual instructions of the Parties. Termination of any Escrow will be without
prejudice to any legal rights either Party may have against the other under this
Agreement. if neither Party makes a demand, the Escrow Holder will,proceed to
Closing as soon as possible.
8.3.7 Preliminary Change o1 Ownership. The Developer will be
responsible for promptly executing and delivering any preliminary change-of-
ownership report to the Escrow Holder.
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8.3.8. Condition of Title. At Closing, title to each Development Parcel
will be free and clear of title Exceptions, except current taxes and assessments, if
any, and those Exceptions agreed to by the Developer or permitted pursuant to
paragraph 4.2.4.
8.3.9 Closing Statements. After Closing, Escrow Holder will deliver
separate closing statements to the Developer and the Agency in which the Escrow
Holder accounts for all funds it has received and disbursed for each Party, and
copies of documents signed and recorded or filed, with the recording and filing date
information endorsed thereon.
8.4 Order of Possession. Notwithstanding any provision in this Agreement to
the contrary, this subsection 8.4 will apply if the.Agency before the Outside Date for a
Development Parcel has not obtained title to an Acquisition Parcel within.the Development
Parcel but, without obligation to do so,has obtained a judicial order authorizing the
Agency to take possession of the Acquisition Parcel. The Agency may deposit a copy of
the order and a Grant Deed for the Development Parcel based.on the order into Escrow,
and the Developer will not ter"minate this Agreement,but will proceed with Closing and
with completing the Developer Improvements on the Development Parcel, if all of the
following occurs:
8.4.1 Exclusive Possession. The Agency delivers exclusive possession of
the Acquisition Parcel by a written lease, deed or other document which the Parties
approve to carry out the purposes of this Agreement.
8.4.2 Quality of Possession. The right of possession which the Agency
delivers to the Developer is sufficient for.the Escrow Holder to issue a policy of
title insurance insuring title meeting the requirements of paragraph 8.3.8.
8.4.3 Final Judgment. The Agency diligently proceeds with the eminent_
domain action until the court renders a final judgment authorizing the taking, and
Escrow Holder records the Grant Deed.
8.4.4 Construction Financing. The Developer is able to secure
construction financing on the basis of the title policy.
If requested by the Escrow Holder, the Agency will provide reasonable indemnities and
other assurances to insure the Agency's conveyance of title to the Developer after the court
issues any order for prejudgment possession.
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8.5 Nonmerger. The provisions of this Agreement will not merge with any
Grant Deed. The Grant Deed will not affect, impair or limit the provisions, covenants,
conditions or agreements of this Agreement.
8.6 Sale "AS IS"; No Warranty of Property Condition. Except as may be
expressly.provided otherwise in this Agreement, when the Agency conveys or delivers
possession of any Development Parcel, including the Common Area, it will be in "AS IS"
condition. The Agency makes and will make no representation or warranty, express or
implied, on the condition, possession or title of any Development Parcel, the Common
Area or any other part of the Master Development Site. "Condition" includes, without
limitation, the condition of soil, geology, known or unknown seismic faults, the presence of
Hazardous Materials, or the presence of any known or unknown faults on or below the
surface of any Development Parcel. The Agency will have no obligation or liability to the
Developer or any other party for.the suitability of any Development Parcel or any portion
of the Common Area for the development contemplated and makes no warranty of
suitability or fitness for purpose.
The "AS IS't condition of the Master Development Site and the Development
Parcels includes, but is not limited to, the following conditions: (i) those conditions that
any Toxics Reports disclose, and (ii) those conditions disclosed by the files of the
regulators, such as but not limited to the Fresno County Health Department, and the
California Regional Water Quality Control Board.
8.7 Environmental Indemnification. From and after Closing on a
Development Parcel, the Developer shall defend, indemnify and hold harmless the Agency
and its representatives, employees, consultants, officers and volunteers from any claims,
liabilities, damages, remediation costs and judgments which may result from the presence,
removal and storage of any Hazardous Materials on the Development Parcel, including
Common Area. The Developer will be obligated under this.subsection whether the Agency
or any of its respective officers, officials, employees, agents, boards or volunteers are
actively or passively negligent. However, the Developer will not be obligated for any loss,
liability, fines, penalties, forfeitures, costs or damages caused solely by the active
negligence or willful misconduct of the Agency or any of its officers, officials, employees,
agents, boards or volunteers acting within the scope of their authority.
8.8 Agency Sale to Third Party.
8.8.1 Developer Failure to Proceed. If the Developer fails to give a
certificate of readiness to proceed on.a Development Parcel within the time
specified in subsection 7.6, the Agency may give notice to the Developer that the
Agency intends to sell the Development Parcel to another person or entity, if the
Developer fails to give the certificate of readiness within 60 days after such notice,
the Agency may then sell the Development Parcel to another person or entity that
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the Agency determines, in the Agency's sole judgment, has sufficient financial
strength and business experience in planning, financing, development, ownership,
and operation of similar projects to acquire the Development Parcel and to complete
on that Development Parcel the Developer Improvements, or other improvements
acceptable to the Agency and the transferee,-in accordance with the Master Plan
and the Master Plan CC&R's.
8.8.2 Severed Parcels. If a Development Parcel, Agency Parcel or
Acquisition Parcel is severed from this Agreement by the Parties pursuant to any
provision of this Agreement, the Agency may then sell the Development Parcel,
Agency Parcel or Acquisition Parcel to another person or entity that the Agency
determines, in the Agency's sole judgment, has sufficient financial strength and
business experience in planning,financing,development, ownership, and operation
of similar projects to acquire the Development Parcel, Agency Parcel or
Acquisition Parcel and to complete on that parcel Developer Improvements, or .
other improvements acceptable to the Agency and the transferee, in accordance
with the Master Plan and the Master Plan CC&R's.
9 CONDITIONS.PRECEDENT TO CONSTRUCTION. The following are
conditions precedent to the Developer's obligation and right to begin construction of the
Developer Improvements on any Development Parcel in either Phase I or Phase If. These
conditions must be satisfied by the times set forth below or, if no time is stated, by the time set
forth in the Schedule of Performance, unless the benefitting Party, in writing, waives the condition
or the Parties extend the time for satisfaction. Either Party may terminate this Agreement as
provided herein for failure of any condition following the date set for satisfaction, unless the
Parties extend the date.
9.1 Conveyance of Development Parcel. The Agency shall have conveyed
title and/or possession of the Development Parcel to the Developer.
9.2. Agency Review and Approval. Solely to assure the Agency that the
Developer improvements will further the redevelopment goals, requirements and
expectations of the Plan, the Law and this Agreement, the Developer will submit all
development-related items to the Agency for review and approval. if the Developer must
submit the document to the City, the Developer will deliver a copy to the Agency at the
same time.. The Agency will approve or disapprove the items in writing within 30 days
after receipt. These items include, but are not limited to, building pertnits, conditional use
permits, site plans, building plans, reciprocal easements, reciprocal parking agreements, if
needed,basic concept drawings, elevation and other drawings showing architectural style,
design and features, landscaping plans prepared-by a professional landscape architect
(including any temporary landscaping on the Office Building No. i Parcel, the Surface
Parking Parcel and the portion of the Common Area in Phase 1), finish grading plans
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(prepared by a licensed civil engineer), schematic plans, preliminary plans and final
construction plans.
The Developer will submit the items for review within the times set forth in the Schedule
of Perfonnance (Exhibit D). The Agency's Executive Director,Redevelopment
Administrator or designee will conduct the review and approval. The Agency's review will
be in addition to and without limitation on any review and approval by the City or any
other governmental agency having jurisdiction. The Agency will not require or permit the
Developer to take any action or to refrain from any action that conflicts with or is less
restrictive than any development requirement-of the City.
if the Agency disapproves a development-related document, the Agency will notify the
Developer and will provide reasonable detail of its reasons for disapproval and the changes
it requires. The Agency and the .Developer then will meet and confer in good faith to
resolve the basis for disapproval. Upon conclusion of that process, the Developer will
diligently and promptly revise, if necessary, the disapproved plans, drawings or
development-related documents and resubmit them to the Agency. The Developer may
appeal any disapproval by Agency's Executive Director, Redevelopment Administrator or
designee to the Agency Board.
9.3 Incorporation and Ownership of Approved Documents; Material
Change. After the Agency approves each development-related document, the Developer
will provide a duplicate copy of each approved document to the Agency; after that, the
document will become a part of this Agreement as though fully set forth herein. The
duplicate document will belong to the Agency for use as it may deem advisable including,
but not;limited to, completion of the Project or any Developer improvements upon any
Default of the Developer. The .Developer may not make any Material Change to an
Agency-approved development-related document without first submitting the change to the
'Agency for review and approval according to the process in subsection 9.2. Until the
Agency approves a Material Change, the previously approved document will be the
controlling document.
9.4 City and Other Governmental Approvals. The Developer shall have
obtained any City and/or other governmental permits or approvals required for the
Developer to complete the Developer Improvements on the.Development Parcel. The
Developer will.cooperate with the Agency and the State as needed to obtain any other
governmental permits or approvals necessary to the Project, the State Parking Facilities or
the Courthouse Facilities. Also,the Agency will assist the .Developer as reasonably
required in obtaining necessary City and other governmental permits or approvals for the
Developer Improvements. The Agency's signature.to this Agreement or approval of any
.governmental permit or approval, however, is not approval by the City and in no way limits
the discretion of the City or any other governmental agency in the permit and approval
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process including, without limitation, the City's.or other governmental agency's detailed
review and approval of the Developer's final construction plans and specifications.
9.5 Construction Contracts. The Developer's construction contracts with
contractors, appropriately licensed and qualified for construction of the Developer
Improvements on the Development Parcel and approved by the Agency; are in effect. Each
.construction contract will provide that the contractor will complete construction for some
fixed or specified maximum amounts pursuant to the approved final construction plans and
the approved Financing Plan.
Within 15 business days after the City issues a building permit for construction.on a
Development Parcel, the Developer shall submit copies of the construction contract(s) for
that Development Parcel to the Agency's Executive Director, Redevelopment
Administrator or a designee, for the sole and limited purposes of determining: (i)that the
costs of work have been clearly fixed and are consistent with the approved Financing Plan,
(ii) that no contract contains Material Changes, not already approved by the Agency; to the
Financing Plan or any development-related document,'and (iii) that the contract(s) contain
the required equal opportunity covenants.
10 .DEVELOPER'S CONSTRUCTION OBLIGATIONS .FOR INDIVIDUAL
.DEVELOPMENT PARCELS.
10.1 Beginning Construction. Notwithstanding any other provision of this
Agreement, the Developer will not begin construction on any Development Parcel until the
Agency has title or possession rights in all portions of the Development Parcel and has
conveyed title and/or possession to the Developer..
10.2 Development of Individual Development Parcels. The Developer will
begin construction of the Developer improvements on each Development Parcel: (i) within
90 days after the Closing in,which the Agency conveys the Development Parcel to the
Developer or the Agency-delivers exclusive possession to the Developer under a`
prejudgment order of possession, or(ii) if the City has not issued a building permit for the
Developer Improvements within the 90-day period through no fault of the Developer, then
within 30 days after the City issues the building pen-nit. The Developer may request all
extension,.and the Agency in its sole discretion may grant the extension. The Developer
will diligently complete the Developer Improvements on each Development Parcel
according to this Agreement; the Plan, the Scope of Development(Exhibit E), the Master
Plan CC&R's, the Schedule of Performance (Exhibit D), the approved final construction
plans, the Master Plan CC&R's, the Master Plan, all City permits and approvals, all
Agency approvals and all applicable local, state and federal laws, codes, standards and
regulations. Without limiting the generality of the foregoing, construction and completion
of Developer Improvements on a Development Parcel shall comply with the following:
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10.2.1 Construction Completion Deadline. The Agency will convey the
Development Parcels to the Developer only for redevelopment pursuant to this
Agreement, the Master Plan, the Master Plan CC&R's, the Plan and the Law, and
not for land speculation. Therefore, the Developer will diligently pursue
construction on each Development Parcel within the times shown in the Schedule of
Performance for that Development Parcel and will complete such construction not
later than the date shown in the Schedule of Performance (or another date as the
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Parties may agree in a writing approved by the Agency Board).
Without limiting the preceding.paragraph, the Developer shall use best efforts to
complete construction of Office Building No. 1 on the Office Building No. I Parcel
within two years after completion of the Courthouse Facilities by the State. The
Developer shall in any event commence construction of Office Building No. 1 no
later than four years after the Effective Date of this Agreement.
10.2.2 Utilities. The Developer will remove or relocate, or arrange for
removal or relocation of,utility lines and facilities that must be removed or
relocated to accommodate development of the Development Improvements on the
individual Development Parcels, according to the Schedule of Perfonnance.
10.2.3 Site Clearance. Except for the historic structures relocated by the
Agency (see subsection 5.3),the Developer will demolish structures and
improvements and clear the individual Development Parcels to accommodate the
Developer Improvements, all according to the Schedule of Performance.
10.2.4 Surface Parking Parcel and Surface Parking Facilities. As part
of the Phase I Developer Improvements, the Developer shall construct the Surface
Parking Facilities on the Surface Parking Parcel and use the Surface Parking
Facilities to temporarily accommodate some of the vehicle parking for Office
Building No. I until construction of the first structure of the Parking Structure in
Phase 11, as provided in paragraph 10.2.5.
Upon conveyance of the Office Building No. 2 Parcel to the Developer and
satisfaction of all conditions precedent to construction of Office Building No. 2, as
specified in Section 9, the Developer may use a portion of the Surface Parking
Parcel for Office Building No. 2 improvements, provided that(i) the remaining
portion of the Surface Parking Facilities contains at least 400 vehicle parking
spaces, and (ii) the Developer obtains, at its expense, an amendment to the Parcel
Maps for Phases I and 11, a lot line adjustment or other approval required by the
City to remove such portion of the Surface Parking Parcel from the boundaries of
the Surface Parking Parcel and include it within the boundaries of the Office
Building No. 2 Parcel.
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If the Developer completes the first structure of the Parking Structure as provided in
paragraph 10.2.5, and upon satisfaction of all conditions precedent to construction
of Office Building No. 3 and the second structure of the Parking Structure, as
specified in Section 9, some of the vehicle parking for Office.Building No. 1 will be
provided in the first structure of the Parking Structure and the Developer shall
remove the Surface Parking Facilities and use the Surface Parking Parcel to
construct, operate and maintain Office Building No. 3 and the second structure of
the Parking Structure, as provided in this Agreement, provided that the Developer
obtains, at its expense, an amendment to the Parcel Map for Phase ll, a lot line
adjustment or other approval required by the City to create the Office Building No.
3 Parcel (Parcel F shown on the Master Plan) on the Surface Parking Parcel for
construction of Office Building No. 3, with the remainder of the Surface Parking
Parcel to be used for construction of the second structure of the Parking Structure.
The Surface Parking Parcel and the Surface Parking Facilities shall continue to be
used to accommodate some of the vehicle parking for Office Building No. I until
completion of the first structure of the Parking Structure, subject to the following:
(i) If the Developer loses its right to conveyance of the Parking Structure
Easement as provided in paragraph 10.2.5 and is therefore unable to
construct the first structure of rile Parking Structure but proceeds with
construction of Office Building No. 3 in Phase 11; or
(ii) If, after completion of Office Building No. l and the Surface Parking
Facilities but prior to completion of the First structure of the Parking
Structure, the Agency exercises its right of reentry, termination and reverter
on the Surface Parking Parcel pursuant to Section 20.3 because the
Developer fails to proceed with or abandons Phase Il altogether, or fails to
proceed with or complete or abandons Office Building No. 2, Office
.Building No. 3 of either structure of the Parking Structure;
the Agency will make available, at the Developer's expense, replacement vehicle
parking for Office Building No. l on one or more sites within a radius of no more
than two and one-half blocks from the boundaries of the Office Building No, 1
Parcel, at a rate no greater than 1.6 vehicle parking spaces per 1,000 gross square
feet of space in Office.Building No. 1. The Developer shall be responsible for
obtaining,also at its expense, any replacement vehicle parking in addition to that
made available by the Agency and required to meet:the parking requirements for
Office Building No. I under the City's Zoning Ordinance or other applicable codes
or regulations.
10.2.5 Parking Structure. The Developer will be entitled to conveyance
of the Parking Structure Easement only for, and shall use the Parking Structure
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Easement only for, construction, operation and maintenance of the first structure of
the Parking Structure. The Developer;shall commence construction of the first
structure of the Parking Structure withrin the time specified in the Schedule of
Performance, but no later than the time construction of Office Building No. 2 is
commenced. The design and operating specifications for the first structure of the
Parking Structure shall be subject to prior review and approval by the State's
Department of General Services.
If the Developer fails to give the Agency a certificate of readiness to proceed with
the first stnicture of the Parking Structure, as required by subsection 7.6,within
four years after the Effective Date of this Agreement, the Developer will have no
right to conveyance of the Parking Structure Easement.
Notwithstanding the preceding paragraph or paragraph 10.2.1, the Developer
acknowledges that paragraph 9.3.4.1 of the State Agreement provides that if the
Developer has not commenced construction of Office Building No. 1 within four
years atter the Effective Date of the State Agreement, the Developer will have.no
right to transfer or use of the Parking Structure Easement for construction,
operation or maintenance of the Parking Structure or any other,purpose.
Accordingly, if the Developer has not commenced construction of Office Building
No. 1 within four years after the Effective Date of the State Agreement (February
25, 2004), and if the State demands in writing that the Agency comply with
paragraph 9.3.4.1 of the State Agreement, the Developer will have no right to
conveyance of the Parking Structure Easement, and the Agency will use or dispose
of the Parking Structure Easement as provided in paragraph 9.3.4.1 of the State
Agreement.
After completion of the first structure of the Parking Structure, the Developer shall
construct the second structure of the Parking Structure on the Surface Parking
Parcel to accommodate some of the vehicle parking for the Developer
Improvements in Phase 11, as shown on the Master Plan and described in the Project
Description_ The Developer shall commence construction of the second structure of
the Parking Structure within the time specified in the Schedule of Perfonnance, but
no later than the time construction of Office Building No. 3 is-commenced.
10.2.6 Office Building No. 1. The height of Office Building No. I shall
not exceed 135'feet. The ground level floor plate of Office Building No. 1 shall not
exceed 30,000 square feet. The plans, drawings and specifications for the exterior
of Office Building No. I, including all proposed signage and incidental exterior
improvements, shall be subject to prior .review and advice by the State's
Department of General Services for the purpose of verifying that the exterior
appearance of Office Building No. I will comply with the Master Plan CC&R's.
The Developer also will give the State's Department of General Services the right
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to review and approve, in advance, an retail or other.coinmercial uses proposed in
Office Building No. 1.
10.3 Progress Reports. Until the Developer completes the Developer
Improvements on a .Development Parcel and tli`e.Agency issues a Release of Construction
Covenants for that Development Parcel, the Developer will provide monthly written
reports to the Agency of its construction progress. The reports will be in such form and
detail as the Agency may require.
10.4 Rights of Access.' The Agency�s representatives will have the right to enter
any Development Parcel or other portions of the Master Development Site during
construction,without charge or fee, during normal construction hours to assure
compliance with this.Agreement. Entry by Agency representatives will not interfere with
the construction of the Master Plan improvements or the Developer Improvements.
10.5 Release-of Construction Covenants. After the Developer has
satisfactorily completed construction of the Developer Improvements on a particular
Development Parcel according to this Agreement, the Developer may ask the Agency in
writing to issue a Release of Construction Covenants for that Development Parcel. The
Developer or its successor will provide the following with the request: (i)a certificate of
occupancy, (ii)a certificate from the Developer's architect that construction on the
Development Parcel is complete and complies with this Agreement, the Master Plan, the
Master Plan CC&R's and the approved final construction plans, (iii) evidence that any
recorded mechanics' or materialman's liens or stop notices have been released or bonded
against, and (iv)one or more loan commitments, which the Developer has accepted in
writing, from qualified lenders for permanent(take out) financing for the Developer
Improvements,or other evidence reasonably satisfactory to the Agency that the Developer
has secured such permanent(take out) financing.
The Agency, within 30 days after receiving the Developer's written request and supporting
documents, will (i) issue the Release of Construction Covenants, or(ii)give the Developer
its reasons for not issuing it and the actions that the Developer must take before the Agency
will issue the Release. in the latter case, the Agency will thereafter issue the Release of
Construction Covenants within 30 days after receiving the Developer's further written
request and supporting documents demonstrating, to the Agency's reasonable satisfaction,
compliance with the actions specified by the Agency in its prior response to the initial
request for the Release. The Release, when recorded in the Official Records of Fresno
County, is a conclusive detennination that the Developer has satisfied its construction
obligations under this Agreement for the Development Parcel(s) described therein. .
The Release will not be evidence that the Developer has complied with or satisfied any
obligation to a mortgagee holding a deed of trust securing money lent to finance the
construction. The Release will not tenninate the Developer's obligations under this
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Agreement that, by their nature, are intended to survive the Developer's completion of
construction on the specific Development Parcel(s)and will not terminate the Developer's
construction obligations on any Development Parcel other than the Development Parcel(s)
described in the Release. The Release is not the notice of completion under California
Civil Code § 3093.
a .
10.6 Effect of Recording Release of Construction Covenants. After a Release
of Construction Covenants is recorded, any party then owning or afterwards purchasing,
leasing or acquiring any interest in a Development Parcel described in the Release will not
incur any obligation or liability for construction under this Agreement with respect to that
Development Parcel.
11 Master Plan Improvements and Obligations. in addition to the Developer's
obligation to construct Developer lnnprovements on individual Development Parcels as set forth in
subsection 10.2, the following obligations, work and improvements for the Master Plan will be
performed, constructed, installed and completed by the Agency, the City or the Developer,as
specified below, in accordance with the Scope of Development, the approved final construction
plans, the Master Plan CC&R's,all City permits and approvals,all Agency approvals and
applicable provisions of the State Agreement.
11.1 Agency Phase 1 Improvements. The Agency shall be responsible for, and
only for,constructing and installing the following work and improvements for Phase 1 of
the Master Plan:
11.1.1 The Agency will perform, construct and install, or will cause the
City to perforin, constrict and install, in reasonable coordination with the State's
construction of the Courthouse Facilities, all work and improvements specified in
paragraphs 9.3.1, 9.3.2, 9.3.4.4 and 9.3.4.5 of the State Agreement, including
installation of curb, gutter, sidewalk and trees and landscaping improvements in
public street rights-of-way along the boundaries of the Courthouse Parcel, the State
Parking Parcel and the rest of Phase 1 of the Master Plan,
The Developer will have the right to review and recommend the types of street trees
to be installed by the Agency or the City in the public street rights-of-way along the
perimeter of Phase I. However, as many existing trees as possible will be retained.
The Developer, at its expense, shall properly irrigate and maintain the street trees
and landscaping installed by the Agency or the City pursuant to this paragraph ,
1 1.1.1. The irrigation system for the street trees and landscaping installed by the
Agency or the City will be connected to the irrigation system installed by the
Developer for the Phase 1 Parcels. The curb, gutter and sidewalk improvements
will be maintained by the City in accordance with City standards.
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The Agency will be responsible for the}costs of installing such improvements to the
extent necessary to comply with City plans, codes, ordinances and specifications,
If the State or the Developer requests other than standard City curb, gutter, sidewalk
or landscaping along the perimeter of the. Courthouse Parcel, the State Parking
Parcel or any other portion of Phase I, the State or the Developer(whichever
.makes the request)will be responsible for any increased costs of such
improvements.
On or before the.Effective.Date, the Agency will have delivered to the State.and the
Developer the final plans, drawings and,specifications for construction and
installation of public street right-of-way improvements required by this subsection
1 1.1.1 which will be used by the Agency or its contractor(s) for relocation and
construction of such public street right-of-way improvements. The final plans,
drawings and specifications for improvements along the perimeter of the '
Courthouse Parcel and the State Parking.Parcel will be based on preliminary plans,
drawings and specifications approved by the State prior to the Effective Date,
pursuant to paragraph 9.3.2 of the State Agreement. 1f they have not already given
their approvals before the Effective Date, the State (as to the perimeter of the
Courthouse Parcel and the State Parking Parcel)and/or the Developer, as the case
may be, will,have 30 days after delivery to review and approve the final plans,
drawings and specifications. Neither the State nor the Developer will withhold
approval unreasonably and will give approval if they confirm that the work shown
in the plans, drawings and specifications will comply with City plans, codes,
ordinances and specifications and, if applicable, any additional requirements
requested by the State or the Developer. The State and the Developer will give its
approval or nonapproval in writing and, if nonapproval, the specific reasons for
nonapproval. If either the State or the Developer does not approve any of the plans,
drawings or specifications,authorized representatives of the State, the Developer,
the Agency and the City shall meet within 10 days after notice of nonapproval and
confer in good faith to remove or resolve the specified reasons for nonapproval.
The Agency shall complete or cause completion of construction and installation of
the work and improvements specified in this paragraph 1 1.1.1 according to the
approved final plans, specifications and drawings and the applicable time lines in
the State Agreement, including any extensions thereof.
1 1.1.2 The Agency shall construct the State Parking Facilities on the State
Parking Parcel in accordance with paragraph 2.6.4 of the State Agreement,
including on-site landscaping and curb, gutter, sidewalk, street trees and
landscaping.in the public street right-of-way along the perimeter of the State
Parking Parcel. The Developer, at its expense, shall properly irrigate and maintain
the on-site landscaping and the street trees and landscaping in the public street
right-of-way.
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11.2. .Developer Master Plan Improvements. Except for those Phase I
improvement obligations expressly assumed by the Agency in subsection 1 1.l, the
Developer shall perform,construct, install and complete, at its cost and expense, all other
obligations,work and improvements for Phase I and Phase 11 of.the Master Plan required
by this Agreement; the State Agreement; all City or other government agency permits and
approvals; the.EIR; and Mitigated Negative Declaration No. C-02-061 (approved by the
City on November 19, 2002), including but not limited to the following:
11.2.1 To the extent not already completed by the Agency pursuant to the
State Agreement, the Developer shall clear all real property in Phase I of the Master
Plan, other than the Courthouse Parcel and the State Parking Parcel, of any
remaining existing structures,buildings and unneeded infrastructure as required by
paragraph 2.6.4 of the State Agreement, and shall clear all real property in Phase II
of the Master Plan, other than the Lahvosh Bakery Parcel, of all existing structures,
buildings and unneeded infrastructure.
11.2.2 The Agency delegates and transfers to the Developer, and the
Developer shall construct, install and complete all work and improvements
specified in paragraphs 9.3.4.2, 9.3.4.3, 9.3.5.2, 9.3.5.4, 9.3.5.5 and 9.3:5.6 of the
State Agreement.
11.23 The Developer shall develop the area between the Courthouse Parcel
and the Office Building No. 1 Parcel as a plaza and associated improvements in
accordance with the Master Plan, the Scope of Development and paragraph 9.3.5.3
of the State Agreement. The Developer shall complete these improvements on or
before the date the Courthouse Facilities are completed.
12 GENERAL CONSTRUCTION OBLIGATIONS.
12.1 Coordination with Courthouse.Facilities and State Parking.Facilities.
The work and improvements for Phase I of the Master Plan described in Section I I shall be
performed,constricted and installed, and the Developer shall perform, construct and install
Office Building No. I, the Surface Parking Facilities and all other Developer
Improvements and work in Phase 1, so as to prevent disruption of the completed
Courthouse Facilities and State Parking Facilities, and prevent unreasonable interference
with operations in the Courthouse Facilities or the State Parking Facilities during future
development of Phase 1.
12.2 Developer's Construction Costs. Except for obligations and fees expressly
assumed by Agency in this Agreement, the .Developer will be responsible for all costs and
fees associated with developing the Master Plan improvements, the Development Parcels,
the Common Area and other portions of the Master Development Site including, without
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limitation, all fees and costs associated with obtaining governmental permits and approvals.
12.3 Compliance With.Laws. The Developer shall comply with all applicable
laws, regulations and rules of the govemmential agencies having jurisdiction over the
Master Development Site, the Projector the Developer, including, but not limited to,
applicable federal and state labor standards and environmental laws and regulations.
The Developer, not the Agency, is responsible for determining applicability of, and
compliance with, all local, state and federal laws to the Developer's activities on the
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Development Parcels, the Common Area and the Master Development Site including,
without limitation, the California Labor Code, Public Contract Code, Public Resources
Code, Health & Safety Code, Government Code, the City charter, and the City's municipal
code. The Agency makes no representations as to the applicability or inapplicability of any
such laws to this Agreement, the Developer, the Developer Improvements, the Master Plan
improvements or the parties' respective rights,or obligations hereunder including, but not
limited to, payment of prevailing wages, competitive bidding, subcontractor listing, or
other matters. The Agency will not be liable or responsible in law or equity for any failure
of the Developer to comply with any such laws, even if the Agency knew or should have
known of the need for such compliance or failed to notify the Developer of the need for
such compliance.
12.4 Equal Opportunity; Anti-Discrimination. Neither the Developer nor any
of the Developer's contractors, subcontractors or employees will discriminate based on
race, color, creed, religion, sex, marital status, age,.physical or mental disability, ancestry
or national origin in the hiring, firing, promoting or demoting of any person engaged in the
construction work or activities undertaken pursuant to this Agreement. The Developer and
each of its construction contractors will give employment preference, to the extent
practicable, to individuals residing within the Project Area.
12.5 Extension of Time for Completion. The Agency may extend, in writing,
the Developer's deadline for completing the Master Plan improvements specified in
subsection 11.2 or the Developer Improvements on a Development Parcel fora period
reasonably necessary to overcome a delay if the delay is due to a cause that is beyond the
Developer's reasonable control. A cause is beyond the Developer's reasonable control if
the Developer, with reasonable diligence, could not have foreseen and avoided the cause.
Such causes include, but are not limited to, acts of God; unusually severe weather or flood;
war,riot or act of the public enemy; act of domestic or foreign terrorism; labor dispute;
unavoidable inability to secure labor, materials, supplies, tools or transportation; or acts or
failures to act by any governmental authority having jurisdiction (other than Agency acts
contemplated by this Agreement),and other than the Developer's lack of Rinds or inability
to obtain construction financing. As a condition precedent to any extension of time, the
Developer will give the Agency notice within 10 days after any cause for delay occurs.
The notice will set forth the cause of the delay,the extension the Developer expects is
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necessary to overcome the cause, and a request that the Agency approve the extension.
Any extension of time for completion of Office Building No. I or the Master Plan
improvements in Phase I also must be approved by an authorized representative of the.
State. The Parties will confirm any approved extension in writing as a modification to the
Schedule of Performance.
12,6 .Liens and Stop Notices. The Developer will not allow any lienor stop
notice to be placed on any Development Parcel, the Courthouse Parcel, the State Parking
Parcel or any other part of the Master Development Site, from any act or omission of the.
Developer or any of its employees or contractors. if a claim of lien or stop notice is given
or recorded,the Developer will take the following actions within 30 days after recording or
service of the lien or notice:
12.6.1 Pay or discharge the lien or notice; or
12.6.2 Record and deliver a surety bond in sufficient form and amount or
otherwise provide proof to the Agency of 'a source for the release of the lien or
notice; or
12.6.3 Give the Agency other assurance that the Agency, in its sole
discretion, deems satisfactory for paying the lien or bonding the,stop notice and
protecting the Agency,
13 AGENCY'S IMPROVEMENTS AND .PROJECT OBLIGATIONS. Subject to
all the conditions precedent and any other applicable express provisions of this Agreement, and in
addition to those obligations specified in subsection I l.1, the Agency's obligations are as follows:
13.1 Site Acquisition and Assembly., After the Commencement Date for Phase
I or Phase 11, the Agency will be responsible for assembling the individual Development
Parcels in that.Phase as set forth in this Agreement and the Schedule of Perfonnance,
The Agency will use best efforts to acquire the Acquisition Parcels in the Master
Development Site and to assemble them with Agency Parcels into the Development Parcels
as provided in this Agreement. If the.Agency is unable to acquire an Acquisition Parcel
through negotiated purchase, gift or other voluntary means, the Agency will commence and
pursue all steps required by the Law and by the California Eminent Domain Law (Title 7
of Part 111 of the Code of Civil Procedure) to acquire the Acquisition Parcel through the
power of eminent domain. However, the Agency's obligation to acquire any Acquisition
Parcel through eminent domain is subject to the Agency .Board holding a duly noticed
public hearing,determining that the public interest and necessity require acquisition of the
Acquisition Parcel and adopting a resolution of necessity making the Findings, all as
required by Code of Civil Procedure Sections 1245.220-1245-.255. The Agency cannot
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commit in advance that the Agency Board will be able to make such findings or that.it will
adopt a resolution of necessity as to any Acquisition Parcel.
13.2 Conveyance of.Development Parcels. After the final Parcel Map for Phase
or Phase 11 (as applicable) is approved and recorded, and on receipt of a certificate of
readiness to proceed from the Developer as provided in subsection 7.6, and subject to
satisfaction or waiver of conditions precedent to conveyance under Section 7, the Agency
will convey each Development Parcel in that Phase to the Developer as provided in this
Agreement and according to the Schedule of Performance.
13.3 Relocation.and Acquisition Information. The Agency will be the primary
point of contact for owners, tenants and other interested persons for information and
resolution of issues concerning acquisition of the Acquisition Parcels, eminent domain,
relocation and replacement housing.
13.4 Vacations and Abandonments. Prior to the Effective Date, the City has
vacated the Santa Clara Street right-of-way between N and O Streets, the N-0 Alley
between Ventura Street and Freeway 41, the alley along Freeway 41 between N Street and
the N-0 Alley and an associated sewer and water easement. Subject to public hearings,
notices, findings and other proceedings required by law, the Agency will cause the City to
evaluate and take all steps to abandon or vacate that portion of the N Street right-of-way
within the boundaries of the Master Development Site, and any other public alley or public
right-of-way, as needed for development of the.Project, the Courthouse Facilities and the
State Parking Facilities on the Master Development Site according to the Schedule of
Performance.
13.5 Historic Structures. The Agency will be responsible to relocate off the
Master Development Site existing historic structures as provided in subsection 5.3 and
paragraph 10.2.3.
13.6 Master Plan CC&R's. The Agency will cooperate with and reasonably
assist the Developer in preparing the Master Plan CC&R's and in obtaining the State's
review and approval of the Master Plan CC&R's.
1.3.7 . .Lahvosh Bakery Project. Within 60 days after the Commencement Date
for Phase I1, the Agency will use its best efforts to negotiate and enter into an owner
participation agreement with the owner of the Lahvosh Bakery. Parcel for development of
the Lahvosh Bakery Project, in accordance with the Law, the Plan and applicable owner
participation rules under the.Plan. The terms and conditions of the owner participation
agreement will be separately determined by the.Agency and the owner, but will provide for
at least the following:
I
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13.7.1 The owner shall commence construction of the Lahvosh Bakery
Project within 24 months after the effective date of the owner participation
agreement and shall complete the Lahvosh Bakery Project within 48 months after
such effective date.
13.7.2 The design and appearance of the Lahvosh Bakery Project shall
comply with the Master Plan and the Master Plan CC&R's. The Developer will
have the right to review all .plans, drawings and specifications for the Lahvosh
Bakery Project to ensure such compliance. The owner shall coordinate construction
of the Lahvosh Bakery Project with construction of the Developer Improvements on
the Phase.11 Parcels to ensure compliance and consistency with the Master Plan and
the Master Plan CC&R's.
13.7.3 If the owner fails to commence construction within 24 months after
the effective date of the owner participation agreement (or any extension permitted
thereunder), the Agency will have the right to take all steps required by law to
acquire title to and possession of the Lahvosh Bakery Parcel and to thereafter
convey such parcel to the Developer for development pursuant to the Master Plan
and the.Master Plan CC&R's, on teens mutually agreed by the Agency and the
Developer.
If the Agency and the owner enter into the owner participation agreement described.above,
the Developer will cooperate with and assist the owner in development of the Lahvosh
Bakery Project, and will coordinate construction of and connect the Developer
Improvements in Phase II with the Lahvosh Bakery Project improvements.
If the Agency is unable to negotiate and enter into the owner participation agreement
within 60 days after the Commencement Date for Phase 11 or such later date as the Agency,
the owner and the Developer may agree, the Agency will take all steps required by law to
acquire title to and possession of the Lahvosh Bakery.Parcel and to thereafter convey such
parcel to the Developer for development pursuant to the Master Plan and the Master Plan
CC&R's, on terms to be agreed by the Agency and the Developer. The Agency's
obligation to acquire the Lahvosh Bakery Parcel will be subject to the conditions and
limitations in subsection 11.1 for the Agency's acquisition of an Acquisition Parcel.
14 DEVELOPER'S CONTINUING OBLIGATIONS.
14.1 Taxes and Assessments. The Developer will pay before delinquency all ad
valorem real estate taxes and assessments on the Development Parcels conveyed to it,
subject to a right to contest the taxes in good faith. The Developer will remove any levy or
attachment made on the Development Parcels, or assure the satisfaction thereof within a
reasonable time.
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14.1.1 The Developer will not apply for or receive any exemption from
property taxes or assessments on any interest in the Development Parcels, any other
portion of the Master Development Site, or the Developer Improvements, except as
expressly provided in this paragraph 14.1.1 or paragraph 14.1.2. If any tenant,
lessee or other occupant of the Developer Improvements on a Development Parcel
is a governmental agency, charitable'entity, not-for-profit entity or any other person
or entity which is not subject to property taxation or possessory use taxation, and
such tenant, lessee or occupant entity requires that the Developer apply for and
maintain a property tax exemption on the portion of a Development Parcel occupied
by it, the Developer shall pay the Agency an annual amount equal to the property
tax increment [(.006) X (full cash value!of the propertyiincluding the value of the
Developer Improvements and other improvements)] the Agency would receive from
such portion of the Development Parcel but for the tax exempt nature of the
proposed tenant, lessee or occupant.
14.1.2 Notwithstanding paragraph 14.1.1, the Developer may notify the
Agency that the Developer is attempting to solicit or retain a tax-exempt
governmental agency as a tenant or lessee on a Development Parcel or in any
building thereon and that, in order to be competitive with other potential lessors for
such tenant, the Developer must be relieved from the obligation to pay the in-lieu
property tax increment amount provided in paragraph 14.1.1. '.l`he notice must be
accompanied by written evidence, signed by an authorized executive official of the
governmental agency, establishing to the Agency's reasonable satisfaction that the
governmental agency will require, as a condition of the new or continued lease or
rental agreement, that the lessor apply for and maintain a property tax exemption on
the property to be occupied by the agency and that the lease or rental rates not
include any amount for property tax. If the Developer gives such notice and
supporting written evidence, the.Parties shall promptly meet and negotiate in good
faith, for a period of 30 days, on whether the Developer will be relieved from all or
part of the in-lieu tax increment payments with respect to lease or rental to that
governmental agency. Any agreement reached by the Parties will be stated in
writing and signed by the Executive Director or Redevelopment Administrator and .
an authorized representative of the Developer.
If the Parties are unable to agree within 30 days or any longer negotiation period to
which the Parties may agree, the Developer shall, if it is successful in obtaining or
retaining the lease or rental to the tax-exempt governmental agency, be obligated to
pay the.Agency an annual amount equal to one-half of the property.tax increment
[(.003)X (full cash value of the property, including the value of the Developer
Improvements and other improvements)] the Agency would receive from such
portion of the Development Parcel but for the tax-exempt nature of the
governmental agency.
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The agreement between the Parties or the alternative payment obligation under this
paragraph 4.1.2, as applicable, will apply to such portion of the Development Parcel
for the entire term of the tax-exempt governmental agency's lease, rental or
occupancy. On expiration or other.termination of such lease, rental or occupancy,
the obligations of paragraph 14.1.1 shall again apply to such portion of the
Development Parcel.
14.2 Maintenance. The Developer will, at its expense, maintain all walkways,
lighting and other improvements, structures and landscaping in the plaza area between the
Courthouse Parcelandthe Office Building No:; i Parcel and all portions of the Common
Area within the Master Development Site in good repair and first class condition, and in
compliance with the Master Plan CC&R's. Ali landscaping shalt be kept sufficiently
irrigated and in a healthy, weed-free condition..
14.2.1 Upon the Agency's conveyance of the Parking Structure Easement
to the Developer for construction, operation and maintenance of the first structure
of the Parking Structure, the Developer or its successors in interest shall, in
perpetuity: (i) be responsible for the State's share(in addition to the share(s)
attributable to the balance of the Master Plan Area) of on-going.landscape and
hardscape maintenance costs, as provided in the Master Plan CC&R's, and (ii)
maintain the landscaping and hardscape on the Courthouse Parcel, the State Parking
Parcel and the balance of the Master Development Site, as required by the Master
Plan CC&R's.
14.2.2 Upon completion of the first structure of the Parking Structure, the
Developer shall maintain and repair the Parking Structure at no cost to the State,the
Agency or the City. .
14.3 Security.
14.3.1 The Developer shall, at its expense, provide a security patrol or
equivalent security services for the Common Area in the Master Development Site
during normal business hours (Monday through Friday, 8:00 a.m. to 6:00 p.m.).
14.3.2 Without limiting the paragraph 14.3.1,upon completion of the first
structure of the Parking Structure, the Developer or its successors in interest shall in
perpetuity, provide and maintain adequate lighting and security in the Parking _
Structure and the areas between the Parking Structure and the Courthouse.Facilities
for State personnel walking to and from the Courthouse .Facilities.
14.4 State Parking Rights. Upon completion of the first structure of the Parking
Structure, the Developer or its successors in interest shall, in perpetuity and at no cost to
the State, provide 150 reserved parking stalls to the State on the first and/or second floor of
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the Parking Structure for use in connection with the Courthouse Facilities; provided that
the Developer will have a license from the State to use the 150 parking stalls after 5:00
p.m. and before 6:00 a.m. on State work days and all day on Saturdays, Sundays and State
holidays. Prior to completion.of the first structure of the Parking Structure, and as a
condition to the Agency's issuance of a Release of Construction Covenants for the first
structure of the Parking Structure, the Developer shall negotiate and enter into a separate
agreement with the State to implement the requirements of this subsection.
15 CONTINUING COVENANTS. The following conditions and covenants shall be
set forth or otherwise incorporated in each Grant Deed from the Agency to the Developer for any
Development Parcel or other part of the Master.Development Site:
15.1 Covenants Continuing Until.Recording of the Release of Construction
Covenants. The following will be a covenant running with the land until recording of the
Release of Construction Covenants.
15.1.1 Construction Covenants. The Developer shall comply with all the
covenants and obligations in this Agreement to complete the Developer
Improvements on the particular.Development Parcel in accordance with the Master
Plan (Exhibit.A), the Scope of Development (Exhibit E)and the Schedule of
Performance (Exhibit D).
15.2 Covenants Continuing Until the Agency Land Use Controls Expire.
The following covenants will survive recordation of the Release of Construction Covenants
on each Development Parcel and will remain in effect and run with the land until the land
use controls of the Plan expire.
15.2.1 Applicability. The Developer acknowledges that the generation of
additional sales and property tax revenues to the City and the Agency, removal of
physical and economic blight in the downtown area of the City, and enhancement of
the appearance of an important entryway to the downtown area are a material
consideration for the Agency's entering this Agreement. The development, use and
the maintenance of the Master Development Site as provided in this Agreement are
essential to its assessable value and to effecting the goals of the Plan. Accordingly,
the Developer covenants for itself, its members, officers, successors and assigns,
and all persons.claiming through any of them, that the covenants in this
Subsection 15.2 shall run with the land until the land use controls under the Plan, as
amended, expire.
15.2.2 Use of the Development Parcels. The use of the Develop.nent
Parcels is restricted to a unified mixed-use development consisting of office,
commercial, service and community uses and related purposes, consistent with this
Agreement, the Scope of Development, the Plan, the Conditional Use Permit, the
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Parcel Maps,.the Master Plan CC&R's, building permits, final construction plans,
and all other plans and pe.rtnits approved for the various components of the Project
on the Development Parcels, as may be amended. The Developer may not use or
permit any other use of the Development.Parcels without review and approval by
the Agency and, if for the Office Building No. 1 Parcel, review and approval by the
State. 1f a different use is approved, the Parties will amend this Agreement to
reflect the different use and record the amendment.
15.2.3 Maintenance. The Developer will maintain or cause the transferees,
lessees, tenants or occupants to maintain all improvements on the Development
Parcels, including facade improvements, and in the Common Area in first class
condition and repair(and, as to landscaping, in a healthy, weed-free condition), all
according to the approved plans, the Master Plan CC&R's, and all applicable laws,
rules, ordinances, orders, and regulations of all federal, state, county, municipal and
other governmental agencies and bodies having or claiming jurisdiction and all their
respective departments, bureaus,and officials. The Developer shall keep the
Development Parcels, the Developer.improvements and the Common Area free
from graffiti and free from any accumulation of debris or waste material, and will
promptly replace dead and diseased plants and landscaping with comparable
materials.
The Agency will provide notice to the.Developer of any breach of this maintenance
covenant. The Agency and the Developer will meet and confer promptly after the
notice to determine the corrective actions and a schedule of perfonnance. The
Developer must cure.the default within the agreed schedule, or(if no agreed
schedule) within (i) 10 days after the Agency's notice for any default involving
landscaping, graffiti, debris, waste material or general maintenance, or(ii) 30 days
after Agency's notice for any default involving maintenance of building
improvements. If the Developer does not cure the default within those times, the
Agency, without obligation to do so,may enter the affected Development Parcel,
the Common Areas and other portions of the Master Development Site, cure the
default and protect, maintain, and preserve the Developer Improvements, the
Common Area improvements and other Master Development Site improvements
and landscaping.
The Agency may lien or assess the subject Development Parcel for the Agency's
expenses in protecting, maintaining, and preserving the improvements and
aesthetics of the Development Parcel, including a 15 percent administrative charge,
all in the manner used by the City in the abatement of public nuisances. The notice
and opportunity to cure provided for in this paragraph 15.2.3 will substitute for the
noticing, hearing, and nuisance abatement order used by the City. The Developer
will promptly pay all such amounts to the Agency upon demand.
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15.2.4 Covenants Required By the Plan. As required under the Plan, the
provisions of the Plan regarding land uses, zoning, requirements, property
development standards and restrictions are incorporated into this Agreement as
covenants running with the land on the entire Master Development Site.
15.2.5 Hazardous Materials Covenants. The Developer covenants that,
from and after Closing, the Developer, as to each Development Parcel and all
portions of the Common Area conveyed to it:
15.2.5.1 Shall not cause or permit any improvements thereon
to be used for the generation, manufacture, storage, treatment, release,
discharge, disposal, transportation or presence of any Hazardous Materials.
15.2.5.2 Shall comply and cause the improvements and any
contractors, lessees and tenants thereon to comply with all Environmental
Laws.
15.2.5.3 Shall immediately notify the Agency of the
following: (i) the discovery of any Hazardous Materials thereon, (ii) any
knowledge by the Developer that the Development Parcel or the Common
Area does not comply with any Environmental Laws; (iii) any claims or
actions pending or threatened against the Developer, the Development
Parcel,the Common Area or any improvements thereon by any
governmental entity or agency or any other person or entity relating to
.Hazardous Materials or pursuant to any Environmental Laws (collectively
"Hazardous Materials Claims"); and (iv) the discovery of any occurrence or
condition on any real property adjoining or near the Development Parcel or
the Common Area that could cause the Development Parcel, the Common
Area or any other part of the Master Development Site to be designated as
"border zone property"under the provisions of California Health & Safety
Code §§ 25220 et seq., or any regulation adopted in accordance therewith.
15.2.5.4 In response to the presence of any Hazardous
Materials on, under or about the Development Parcel or portion of the
Common Area, shall immediately take, at the Developer's sole expense, all
remedial action required by any Environmental Laws or any judgment,
consent decree, settlement or compromise with respect to any Hazardous
Materials Claims.
Upon prior notice to the Developer, the Agency, its employees and agents, without
obligation to do so, may enter any Development Parcel, any portion of the Common
Area or other portion of the Master Development Site to investigate the existence,
location, nature and magnitude of any past or present release or threatened release
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of any Hazardous Materials into,onto, beneath or from the Development Parcels,
the Common Area or the Master Development Site.
15.2.6 Post-Closing.Environmental Indemnity. The Developer shall
defend, indemnify, and hold the Agency, the City and their respective boards,
commissions, councils,officers, officials, officers, employees,agents and
volunteers(collectively, "indemnitees") harmless from any claims, demands,
administrative actions, litigation, liabilities, losses, damages, response costs and
penalties that any indemnitee may sustain because of a breach of any agreement or
covenant contained in this Agreement with respect to.Hazardous Materials, or
because of any use, generation, manufacture, storage, release, disposal or presence
(whether or not the Developer knew of it)of any Hazardous Materials occurring in,
on or about any Development Parcel, including the Common Area,after the Closing
on that Development Parcel. Indemnified costs include,but are not limited to, all
costs of legal proceedings and attorneys' fees. This indemnity will survive the .
recording of the Release of Construction Covenants on each Development Parcel.
This indemnification is in addition to, and without limitation on, the other
indemnity provisions in this Agreement.
15.3 Nondiscrimination Covenants Running in Perpetuity. The following
covenants shall run with the land in perpetuity on the entire Master Development Site:
15.3.1 Nondiscrimination Provisions in Deeds. Each Grant Deed by
which the Agency conveys any Development Parcel to the Developer will contain a
provision in substantially the following form as a covenant running with the land in
perpetuity:
"The grantee herein covenants by and for himself or herself,
his or her heirs, executors, administrators, and assigns, and all persons
claiming under or through them, that there shall be no discrimination
against, or segregation of, any.persons, or group of.persons, on account of
race, color, creed, religion, sex, marital status, national origin, age, physical
or mental disability, or ancestry, in the sale, lease, sublease, transfer, use,
occupancy, tenure, or enjoyment of the premises herein conveyed;nor shall
the grantee or any person claiming under or through him or her, establish or
permit any such practice.or practices of discrimination or segregation with
reference to the selection, location, number, use, or occupancy of tenants,
lessees, subtenants, sublessees or vendees of the premises herein conveyed.
The foregoing covenants shall run with the land."
i 5.3.2 mandatory Language in All Subsequent Deeds,Leases,and
Contracts. All deeds or contracts for the sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment of any part of the Development Parcels or any
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building or improvement thereon, including, but not limited to, those entered
between the Developer and any third party, will each contain express
nondiscrimination provisions in substantially the same form as set forth in
paragraph 15.3.1 above. The Developer will submit each document first to the
Agency for review to determine that its nondiscrimination clauses comply with this
paragraph and Section 33436 of the Law.
15.4 Effect and Priority of Covenants. The Agency is a beneficiary of the
covenants running with the land in this Section 15, in its own right and for protecting the
interests of the community and other parties, public or private, intended to benefit from the
covenants. The covenants will run without regard to whether Agency has been, remains,or
is an owner of any land or interest therein in the Master Development Site or the Project
Area. The Agency will have the right, if any covenant is breached, to exercise all legal or
equitable rights and remedies to remedy the breach, after expiration of any applicable
notice and cure periods.
Except Agency liens imposed pursuant to the maintenance covenant above (which shall be
effective on the date recorded), the covenants contained in this Agreement have priority
over the rights of all holders of any mortgage, deed of trust or other monetary lien or
encumbrance on all or any portion of the Master Development Site. For purposes of this
paragraph, issuance by Escrow Holder or another title insurance company, satisfactory to
the Agency, of a.preliminary title report showing that this Agreement or a memorandum
thereof has been recorded before any mortgage,,deed of trust or other monetary lien or
encumbrance on the Master Development Site (other than non delinquent liens for taxes
and assessments and easements previously existing), will be evidence satisfactory to the
Agency that-the covenants contained in this Agreement have priority.
16 DEVELOPER REPRESENTATIONS AND WARRANTIES; TRANSFER
AND ASSIGNMENT.
16.1 Representations and Warranties of.Developer. The following
representations and warranties shall be deemed initially given on the Effective Date,shall
be deemed reconfinned and in effect on the date of Closing for each Development Parcel,
and shall survive the recording of the Grant Deed for each Development Parcel. The
Agency may rely on them throughout the life of this Agreement unless the Developer
notifies the Agency of any substantial change affecting the representations and warranties.
The Developer and each person executing this Agreement for the Developer represent and
warrant that:
16,1.1 The documents evidencing the Developer's organization and
existence which the Developer has delivered to the Agency are true and complete
copies of.originals,as amended.
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16.1.2 The Developer is a limited liability company duly organized and
validly existing under the laws of the State of California, in good standing and
authorized to do business in the State of California, the County of Fresno and the
City of Fresno.
16.1.3 The Developer has all power and authority to enter and perform its
obligations under this Agreement.
16.1A The Developer's board of directors or membership, as required
under its operating agreement, has duly authorized each person signing this
Agreement for the Developer to sign and deliver.this Agreement and to legally bind
the Developer to its ten-ns and conditions.
16.1.5 Neither the Developer's execution nor its performance of this
Agreement violates any provision of aiiy other agreement to which the Developer is
a party or by which it is bound.
16.1.6 The Developer has not engaged any broker or finder with respect to
this Agreement, any Development Parcel or any other part of the Master
Development Site.
16.1.7 Except as may be specifically set forth in this Agreement, no
approvals or consents not already obtained by the Developer are necessary for the
Developer to sign or perform this Agreement.
16.1.8 The Developer has or, subject to the satisfaction of any conditions
precedent to construction loan disbursements, will have sufficient funds available to
complete the Developer Improvements on the particular Development Parcel and
improvements in the Common Area and to pay all costs assumed by the Developer
hereunder.
16.1.9 This Agreement is valid, binding and enforceable against Developer
according to its terms.
16.1.10 The .Developer's principal place of business is 555 West Shaw
Avenue,No. B4, Fresno, California 93704.
16.1.11 Neither the Developer nor any of its members is the subject of a
bankruptcy proceeding.
16.2 Prohibition Against Developer's Transfer of the Development Parcels
or Master Development Site, or Assignment of Agreement. The Developer's .
qualifications and identity are of concern to the Agency. The Agency enters this
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Agreement in primary part because of the Developer's qualifications. The purpose of this
Subsection 16.2 is to maintain an experienced developer and operator of high quality,
mixed-use office,commercial and service developments, to prevent land speculation and to
assure that the developer,owner and operator of each Development Parcel, including the
Common Area, and the Master Development Site, whether the Developer or any other
person, complies with all obligations, covenants and conditions in this Agreement and the
Master Plan CC&R's. Accordingly, the Developer will not sell,transfer,convey, assign or
lease any right under this Agreement to acquire a Development Parcel, any ownership,
leasehold or other interest in any Development Parcel or any improvements thereon, or the
Developer's rights or obligations under this.Agreement,without the prior written consent
of the Agency. In addition to those items specified in paragraphs 16.2.1 through 16.2.6, the
Agency will condition its consent to any sale or lease on the proposed purchaser,assignee,
transferee affirmatively agreeing in writing to be bound by the continuing provisions of this
Agreement. The prohibitions, conditions and restrictions under this subsection will
continue on each Development Parcel,including the Common Area, until the later to occur
of the following: (i) Release of Construction Covenants for that Development Parcel is
recorded, or(ii) the Developer's obligations under Section 14 terminate.
16.2.1 Agency Consideration of Requested Transfer or Assignment of
Interest in Development Parcel. Without limiting the generality of the preceding
paragraph, not less than 60 days before(i) the Developer's deadline for acquiring a
Development Parcel, or(ii)the Developer's deadline for commencing construction
of Developer Improvements on a Development Parcel, or(iii) the Developer's
deadline for completing construction of.Developer Improvements on a
Development Parcel, the Developer may request that the Agency approve a transfer
or assignment to a qualified third party (the"Transferee")of the Developer's right
and obligation to acquire the Development Parcel, and/or to construct the
Developer Improvements on the Development Parcel, and/or to operate and
maintain the Development Parcel and the Developer Improvements thereon as
provided in Section 14.
The Agency will approve the transfer or assignment only if the following conditions
are met:
16.2.1.1 The proposed Transferee demonstrates to the Agency that,
in the Agency's reasonable determination, the proposed Transferee has
sufficient financial strength and business experience in planning, financing,
development, ownership, and operation of similar projects to acquire the
Development Parcel, to complete the Developer's construction requirements
on that Development Parcel, and/or to provide first class operation and
management for the completed Developer Improvements on that
Development Parcel in accordance with this Agreement, the Master Plan
and the Master Plan CC&R's.
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16.2.1.2 If the transfer or assignment is of the Developer's right to
acquire a Development Parcel, it must be approved and completed at least
15 days before the scheduled date for conveyance of the Development
Parcel to the Developer specified in the Schedule of Perfonnance,and the
proposed Transferee must sign and enter into'a disposition'and development
agreement prior to the conveyance, in form and substance satisfactory to the
Executive Director and the Agency's legal counsel, requiring the
Transferee, its successors and assigns to acquire, develop, operate and
maintain the Developer Improvements on the Development Parcel in
accordance with this Agreement, the Master Plan and the Master Plan
CC&R's.
16.2.1.3 If the transfer or assignment is to occur after the
Development Parcel has been conveyed to the Developer and is of the
Developer's.right; duties and obligations to construct, complete and/or
operate and maintain the Developer Improvements on the Developer Parcel,
the proposed Transferee must sign and enter into a recordable assignment
and assumption agreement, in form and substance satisfactory to the
Executive Director and the Agency's legal counsel, whereby the Transferee,
for itself and its successors and assigns, expressly accepts the transfer and
assumes all the unfulfilled or ongoing obligations of the Developer under
this Agreement and the Master Plan CC&R's with respect to that
Development Parcel, the Developer Improvements thereon and associated
Common Areas.
16.2.1.4 The Developer will submit to the Agency for review all
documents proposed to effect any such transfer..
16.2.1.5 The Developer will deliver to the Agency all information
the Agency may request to decide whether it will approve the proposed
assignment or transfer.
.1.6.2.1.6 if the proposed Transferee is a governmental entity,
charitable entity,not-for-profit entity or any other person or entity which is
not subject to property taxation or possessory use taxation, the Developer
shall secure its obligation to pay the amounts required under paragraphs
14.1.1 and 14.1.2 to the reasonable satisfaction of the Agency.
If all the above conditions are met, the Agency will approve,conditionally approve
or disapprove the request for transfer or assignment as soon as possible, subject to
applicable legal requirements. The Developer will reimburse Agency for its actual,
reasonable; out-of-pocket expenses (including attorneys'.fees for in-house or
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outside counsel) incurred in investigating a proposed Transferee's qualifications
and in preparing or reviewing the agreements to effect the transfer or assignment.
16.2.2 No Release of Developer. In the absence of specific written
agreement by the Agency to do so, which agreement the Agency will not
unreasonably withhold, the Agency's approval of a transfer or assignment under
this Subsection 16.2 will not relieve the Developer or any other party from any
unfulfilled or ongoing obligations under this Agreement; except that on completion
of an Agency-approved transfer or assignment by the Developer of all its rights,
interests and obligations in a Development Parcel after issuance of the Release of
Construction Covenants, and unless the Agency provides otherwise in its approval
of the transfer or assignment, the Developer will be released from the obligations
specified in subsection 14.1 and paragraphs 15.2.2, 15.2.3, 15.2.5 and 15.2.6 as to
that particular Development Parcel that arise after the effective date of the transfer .
or assignment. Furthermore, if there is an Agency-approved transfer or assignment
by the Developer of all its rights, interests and obligations in all Phase I Parcels, the
Developer will be released from the obligations specified in subsections 14.2 and
14.3 as to Phase 1, the Courthouse Parcel and the State Parking Parcel,but only if
the State has consented in writing to the Transferee's assumption of such
obligations as provided in subparagraph 16.2.1.3, including terms and conditions
for the Transferee's perfonning such obligations.
16.2.3 Permitted Transfers. Notwithstanding the foregoing, the following
transfer and assignments("Permitted Transfers") will be pennitted without further
consent of the Agency under paragraph 16.2.2:.
16.2.3.1 Creation of any Security Financing Interest, subject to
consideration and approval of the Agency as provided in subsection 17.1; or
16.2.3.2 A sale, conveyance or transfer at foreclosure, or a
conveyance in lieu of a foreclosure, resulting from a-Security Financing
Interest; or
16.2.3.3 Conveying or dedicating any part of the Master
Development Site to the City or other governmental agency as required for
the Project, or granting easements or pennits to facilitate the Project; or
16.2.3.4 The grant of temporary easements or permits to facilitate
the Project or the Developer Improvements; or
16.2.3.5 .Leases and rental agreements for individual office, retail,
commercial or other spaces in buildings located on Development Parcels; or
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16.2.3.6 After recordation of the last Release of Construction
Covenants for the improvements in the Common Area in Phase I or Phase
11, conveyance of that portion of the Common Area to the Property Owners
Association provided for in the Master Plan CC&R's for ownership,
operation and maintenance in accordance with this Agreement and the
Master Plan CC&R's.
The Developer nevertheless will give the Agency a notice of any Permitted Transfer
(except the individual leases and rental agreements described in paragraph 16.2.3.5)
at least 30 days before such assignment or transfer.
16.2.4 Construction of Subsection 16.2. The provisions of this subsection
16.2 shall be liberally interpreted to accomplish the purposes set forth in the
introductory paragraph of the subsection, above.
17 SECURITY FINANCING AND RIGHTS OF HOLDERS.
17.1 Encumbrances Only for Development Purposes. Notwithstanding.any
other provision of this Agreement, the Developer shall not grant a security interest in any
Development Parcel before the Agency issues and records a Release of Construction
Covenants. This prohibition does not apply to a Security Financing Interest securing the
construction and permanent financing set forth in the Financing Plan approved by the
Agency.
Before the Developer begins construction on any Development Parcel, the Developer will
notify the Agency of any proposed Security Financing Interest, and will give the Agency
copies of the documentation for the financing. The words "mortgage"and "deed of trust,"
as used in this Agreement, include all other methods of secured financing real estate
acquisition, construction and development.
17.2 Holder Not Obligated to Construct. The holder of any Security Financing
Interest is not obligated to perfon-n the Developer's construction obligations or to guarantee
construction of any Developer Improvements, whether under this Agreement or any Grant
Deed. However, no holder of a Security Financing Interest may devote any Development
Parcel to any use, and may not construct any improvements on any Development Parcel,
except as authorized by this Agreement.
17.3 Notice of Default to Holder; Right to Cure. If a.holder or the Developer
gives a holder's address to the Agency and asks the Agency to notify the holder, the
Agency will give a duplicate notice to the holder of any notice or demand that it gives to
the Developer of breach or Default. Within 45 days after the receipt of the notice, each
such holder of record will have the right, but not the obligation, to cure the Developer's
Default or breach.
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Except as necessary to conserve or.protect improvements already constructed,a holder of a
Security Financing Interest may not undertake to complete the Developer Improvements
without first expressly assuming the Developer's obligations hereunder in a writing
satisfactory to the Agency. Under any assumption agreement, the holder must agree to
complete the Developer Improvements as provided in this Agreement. It must also submit
evidence satisfactory to the Agency that it has the qualifications and financial
responsibility necessary to perform the obligations. Any holder properly completing the
Developer Improvements will be entitled, upon written request and satisfaction of the
requirements of subsection 10.5, to a Release of Construction Covenants from the Agency.
17.4 Failure of Holder to Complete Developer Improvements. if a holder of a
Security Financing Interest assumes the Developer's construction obligations but, within
six months after Developer's Default, does not proceed diligently with construction, the
Agency will have the same rights against the holder as it would otherwise have against the
Developer as to events occurring after the holder assumes control of the Development
Parcel or Parcels, unless otherwise provided in the assumption agreement between the
Agency and the holder.
17.5 Right of Agency to Cure. if(i) the Developer defaults under a Security
Financing Interest before completing Developer Improvements on a Development Parcel,'
and (ii) the holder does not assume Developer's construction obligations, then the Agency
may, but will not be obligated.to, cure the default before foreclosure. If the Agency cures
the default, the Developer will reimburse the Agency on demand for all costs and expenses
it incurs to cure the default. The Agency may lien the Development Parcel to the extent of
such costs and expenses. The lien will be subordinate to any Security Financing Interest on
the Development Parcel as authorized in this Agreement.
17.6 Right of Agency to Satisfy Other Liens. Until the Developer completes
the Developer Improvements on a Development Parcel and the Agency records the Release
of Construction Covenants, the Agency may, but will not be obligated to, cure Developer's
default of other liens. The Agency will not exercise the right until the Developer has had a
reasonable time to challenge, cure or satisfy the lien. This provision does not prevent the
Developer from contesting the validity or amount of a tax, assessment, lien or charge. In
doing so, the Developer must act in good faith, the payment delay must not subject the
Development Parcel(s) to forfeiture or sale,and before the tax, assessment, lien or charge is
due and payable, the Developer must give reasonable security to the Agency for the lien or
charge and notify the Agency.that it will appeal any property tax assessment.
17.7 Holder to be Notified of Provisions. Before the Developer grants any
Security Financing interest in any Development Parcel, the Developer will cause the holder
to insert or incorporate the provisions of this Section 17 into the documents evidencing the
Security Financing Interest,or to acknowledge the provisions in writing.
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18 INSURANCE, BONDS AND INDEMNIFICATION.
18.1 Performance and Payment Bonds. See requirements in subsection 7.7.
18.2 Insurance.During Construction. Until the Agency issues and records the
Release of Construction Covenants on a Development Parcel, the Developer will maintain
in effect as to that Development Parcel the following policies of insurance, with insurance
companies that are (i) admitted by the California Insurance Commissioner to do business in
the State of California and rated not less than "A-Vll" in Best's Insurance Rating Guide, or
(ii) authorized by the City's Risk Manager.
18.2.1 Commercial General Liability insurance, including contractual,
products and completed operations coverages, owner's and contractor's protective,
and bodily injury and property damage, with combined single limits of not less than
$1,000,000 per occurrence.
18.2.2 Commercial Automobile Liability insurance, endorsed for"any
auto" with combined single limits of liability of not less than $1,000,000 per
occurrence.
18.2.3 .Fire and Extended Coverage insurance for at least the full
replacement cost of the Developer Improvements on the Development Parcel,
excluding foundations, footings and excavations and tenant improvements, fixtures
and personal property.
18.2.4 Workers' Compensation insurance as required under the California
Labor Code.
The above-described policies of insurance will be endorsed to provide an unrestricted 30-
day notice in favor of the Agency of policy cancellation, change or reduction of coverage,
except the Workers' Compensation policy which will provide a 10-day notice of
cancellation, change or reduction of coverage.
The General Liability, Automobile and Eire and .Extended Coverage insurance policies will
be written on an occurrence basis and will name the Agency, the City and their respective
officers, officials, agents, boards, employees and volunteers as additional insureds. Such
policies will be endorsed so the Developer's insurance will be primary and the Agency will
not be required to contribute.
Before beginning construction on any Development Parcel, including any part of the
Common Area, the Developer shall file a certificate executed by the insurer or an
authorized agent of the insurer evidencing that the above-described policies of insurance
and endorsements are in full force and effect as to that Development Parcel The
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Developer will furnish copies of policies to the Agency if the City's Risk Manager so
requests. If any policies are due to expire during the term of this Agreement, the Developer
will provide a new certificate evidencing renewal of the policy not less than 15 days prior
to the expiration date of the expiring policy. When an insurer, broker or agent issues a
notice of cancellation, change or reduction in coverage, the Developer will file a certified
copy of the new or renewal policy and certificates for such policy with the Agency.
If the Developer fails to maintain the required insurance in effect, (i) the Developer will
immediately stop all construction work on the Developer Improvements, and (ii) the
Agency may declare a default and avail itself of all rights and remedies provided under this
Agreement.
The Developer will require each contractor and subcontractor to provide insurance
protection in favor of the Agency, the City and their respective officers, officials,
employees, agents, boards and volunteers as required above,except that the contractors'
and subcontractors' certificates and endorsements will be on file with the Developer and
the Agency before the contractor or subcontractor begins any work.
18.3 Indemnification.
18.3.1 General Indemnity. The Developer shall indemnify, hold hannless
and defend the Agency, the City and each of their respective officers, officials,
employees, agents, boards and volunteers from any and all loss, liability, fines,
penalties, forfeitures, costs and damages (whether in contract, tort or strict liability,
including, but not limited to, personal injury, death at any time and property ,
damage) incurred by the Agency, the City, the Developer, the State or any other
person or entity, and from any and all claims, demands and actions in law or equity
(including attorneys' fees and litigation expenses), arising or alleged to have arisen
directly or indirectly out of the Developer's performance or failure to perform under
this Agreement. The Developer's obligations under the preceding sentence shall
apply whether or not the Agency, the City or any of their respective officers,
officials, employees, agents, boards or volunteers are actively or passively
negligent. But this indemnification will not apply to any loss, liability, fines,
penalties,forfeitures,costs or damages caused solely by the negligent acts or willful
misconduct of the Agency, the City or any of their respective officers, officials,
employees,agents, boards or volunteers.
The foregoing indemnity shall apply to, but is not limited to, the following: (i)any
act, error or omission of the Developer or any of its officers, members, employees,
contractors, subcontractors, invitees, agents or representatives in connection with
this Agreement, the Developer Improvements, the Project, the Development
Parcels, the Common Area or any other portion of the Master Development Site;
(ii)any use of the Master Development Site, the Developer Improvements, the
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Project or any Development Parcel, including the Common Area, by the Developer
or any of its officers, employees, contractors, subcontractors, invitees, agents or
representatives; (iii) the design, construction, operation or maintenance of the
Developer improvements or the Project, or any portion thereof, or related
improvements; or(iv) failure by the Developer or any of its officers, employees,
contractors, subcontractors, invitees,agents or representatives to comply with any
federal, state or local law, code, ordinance or regulation applicable to this
Agreement,the Development Parcels,the Developer Improvements, the Common
Area or other portions of the Master Development Site,or the Project.
18.3.2 Indemnification for State Claims. Specifically but without
limitation on paragraph 18.3.1, the Developer shall indemnify, hold harmless and
defend the Agency, the City, the State and their respective officers, officials,
employees, agents and boards from any and all claims, costs, expenses and damages
(whether in contract, tort or strict liability, including, but not limited to, personal
injury, death at any time and property damage) incurred or made by the State's
Department.of General Services, Administrative Office of the Courts, Public Works
Board or Fifth Appellate District caused by or based on the failure of the
Developer, its contractors or subcontractors to meet or perform the Developer's
obligations under this.Agreement.
18.3.3 Indemnification by Contractors or Subcontractors. The
Developer shall require each contractor and subcontractor to indemnify, hold
harmless and defend the Agency, the City, the State and each of their respective
officers, officials, employees, agents, boards, and volunteers according to the terms
of paragraphs 18.3.1 and 18.3.2.
18.3.4 Physical Condition of Property. The Developer shall indemnify,
defend, protect and hold the Agency, the City and each of their respective officers,
officials, employees, volunteers, agents, boards, consultants and representatives,
harmless from and against any liability, loss,damage,cost and expenses (including
attorneys' fees and court costs) arising from or related to any action, suit, claim,
legal or administrative orders or proceedings,demands, actual damages, punitive
damages, loss, costs, liabilities and expenses which concern or in any way relate to
the physical condition of each Development Parcel, including the Common Area,
existing on or after the Closing for that Development Parcel. However, the
foregoing indemnity obligations shall not cover any claims to the extent caused
solely by the negligent acts or willful misconduct of the Agency, the City or any of
their respective officers, officials or employees.
18.3.5 Action Arising Out of Approval of This Agreement. The
Developer shall indemnify, defend and hold the Agency, the City and each of their
respective officers, officials, employees, agents, boards and volunteers harmless
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from any judicial action filed against*the Agency or the City by any third party
arising out of the.Agency's or the City's approval of this Agreement or any permit,
entitlement or other action required to implement this Agreement, including without
limitation approvals under the Law, CEQA or the City's Municipal Code. The
Agency will promptly notify the Developer of the action. Within 15 days after
receipt of the notice, the Developer shall take all steps necessary and appropriate to
assume defense of the action. The Agency will cooperate with the Developer in the
defense of the action (at no cost to the Agency or the City). Neither the Developer
nor.the Agency will compromise the defense of such action or permit a default
judgment to be taken against Agency or the City without the prior written approval
of the other party(ies).
18.3.6 Survival of Indemnification Provisions. Except as otherwise
specifically stated herein, the indemnification provisions in this subsection 18.3 and
every other indemnification in this Agreement will survive any termination of this.
Agreement, will survive any Closing, will survive the expiration of any covenant
herein and will not merge with any Grant Deed or other document evidencing an
interest in real property.
1.9 ECONOMIC MATTERS. ,
19.1 Availability of Funds. The Agency's performance hereunder is contingent
on Available Funds and on the Agency Board's authorization for the Agency to use the
funds for the purposes.stated herein. If the Agency is unable to appropriate funds to fulfill
its obligations.and it has not conveyed a Development Parcel to the Developer at the time
required in the Schedule of Performance, the parties may terminate this Agreement as to
that Development Parcel and sever the Development Parcel from the Master Development
Site. After tennination, neither Party will have any further obligations under this
Agreement as to that Development Parcel, but this Agreement will remain in effect as to
the balance of the Master Development Site. With respect to the Agency's other
obligations hereunder, if Available Funds are initially appropriated but are subsequently
stopped or withheld, the Agency will not be obligated to continue to perform. If the
Agency has conveyed a Development Parcel to the Developer, and funds are not available
for the Agency to perfonn any of its other obligations hereunder as to that Development
Parcel, without the fault of the parties, the unavoidable delay provisions of this Agreement
will apply.
Subject to the foregoing, the Agency represents that, to the best of its knowledge, as of the
Effective Date the Agency has Available Funds sufficient for the Agency to perform its
obligations under this Agreement and that it has no knowledge of any facts or
circumstances which are likely to prevent the Agency from continuing to have such
Available Funds. For purposes of this paragraph, '.'knowledge" means and is limited to the
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actual knowledge of the Executive Director or the.Redevelopment Administrator of the
Agency on the Effective Date.
19.2 Books and Records. The Developer will establish and maintain, for five
years after the Agency issues the.Release of Construction Covenants on a Development
Parcel, records and accounts on the Development Parcel and its development according to
applicable laws, rules, and regulations. The Agency, at its cost, has the right with 24
hours' notice to inspect and copy the Developer's records,books and documents related to
any Development Parcel or its development, or related to the Developer's obligations
hereunder, construction costs, and the proceeds from any sale or refinancing.
20 DEFAULTS AND REMEDIES.
20.1 Default. Any of the following occurrences shall be a Default under this
Agreement:
20.1.1 The Developer fails to comply with or satisfactorily perform any of
its material obligations, agreements, duties, covenants, conditions or requirements
under this Agreement or any amendment hereof..
20.1.2 Any material fact, representation or statement made by or on behalf
of the Developer in this Agreement or in any document referred to or incorporated
herein shall prove at any time to have been incorrect in any material respect when
made.
20.l.3 The Developer generally fails to pay its debts as they become due or
admits in writing its inability generally to pay debts as they become due, makes an
assignment for the benefit of creditors, seeks an order for relief in bankruptcy,
becomes insolvent or bankrupt within the meaning of the Federal Bankruptcy Code,
petitions or applies to any tribunal for appointment of any receiver, custodian,
liquidator, trustee or similar official (an"Official") for the Developer or any
substantial part of its property, commences any proceeding relating to the
Developer under any reorganization, arrangement, readjustment of debt,
conservatorship, receivership, dissolutionor liquidation law or statute of any
jurisdiction (including without limitation the Federal Bankruptcy.Code); or any
such proceeding is commenced against the Developer and is unstayed or
undismissed for a more than 60 days; or the Developer consents to, approves of or
acquiesces in any such proceeding or the appointment of any such Official; or the
Developer allows any such proceeding to continue undischarged for a period of
more than 60 days.
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20.1.4 The Developer makes an assignment or transfer, or attempted
assignment or transfer, without the Agency's prior written consent in violation of
subsection 16.2.
20.1.5 The Developer fails to submit preliminary plans or final construction
plans or other development-related documents (as defined in subsection 9.2)to the
Agency and to obtain the Agency's approval as set forth in this Agreement and the
.Schedule of Performance.
20.1.6 The Developer fails to timely submit to the Agency, or to obtain
Agency approval of, any of the following with respect to a Development Parcel: (i)
the Financing Plan, (ii) the construction contract(s)for the Developer
Improvements, (iii)the performance and payment bonds, or(iv) or the certificate of
readiness. '
20.1.7 If all conditions precedent to conveyance, acquisition, delivery and
acceptance set forth in Section 7 have been satisfied or waived, the Developer
refuses for any reason (including,but not limited to, lack of funds)to accept
conveyance of any Development Parcel from the Agency at the time specified in
the Schedule of Performance.
20.1.8. The Developer does not attempt in good faith to timely procure a
building permit or any other permits or approvals for its construction obligations
under this Agreement, or the Developer abandons such attempts when reasonable
likelihood exists that the relevant agency would otherwise timely issue the permit
or approval.
20.1..9 The Developer fails to begin or complete construction of the
Developer Improvements on a Development Parcel, including adjacent or related
improvements in the Common Area, as set forth in the Schedule of Perfonnance
and other provisions of this Agreement.
20.1.10 The Developer abandons or suspends construction of any
Developer Improvements, including improvements in the Common Area, for 30
days without Agency consent.
20.1.11 The Developer voluntarily or involuntarily assigns,or transfers
rights or obligations under this Agreement, or in any Development Parcels, the
Common Area or other portions of the Master Development Site, except as
permitted by this Agreement,or attempts to do so.
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20.1.12 A change occurs in the ownership of, or in the parties controlling,
the Developer or the Developer's assignees or successors without the Agency's
approval to the extent required herein.
20.1.13 The Developer breaches any other material provision of this
Agreement.
20.2 General Remedies. if there is a Default, and if the Developer faits to cure.
or remedy the Default(except a.Default described in paragraph 20.1.3) within 30 days after
written notice, the Agency may pursue any and all remedies available in law or equity,
including without limitation specific performance of this Agreement or termination of the
Agreement as to the particular Development Parcel. Failure or delay in giving notice of
Default shall not be a Nvaiver of the Default, nor shall it change the time of Default. All
remedies are cumulative. Pursuit of any one remedy by the Agency will not be deemed an
election of remedies or a waiver of any other remedy, and will not.preclude the Agency
from exercising any other remedy at the same time or different times for the same Default
or any other Default.
Without limiting the generality of the preceding paragraph, the Agency will have the
following remedies:
20.2.1 If the Agency acquires and assembles a Development Parcel and
offers to convey, but through any fault of the Developer, the Developer does not
take title to and develop the Development Parcel as required by the Schedule of
Performance and the Scope of Development, the Developer will reimburse the
Agency for its predisposition, eminent domain and other acquisition costs for
acquiring and assembling the Development Parcel, less any such costs the Agency
may have actually recovered through other means.
20.2.2 The Agency may bring an action at law or in equity to seek specific
perfonnance under this Agreement, or to cure or remedy any Default, or to recover
any damages for Default, or to obtain any other remedy consistent with the purpose
of this Agreement. Any legal action will be brought in Fresno County, in the
appropriate state or federal court.
20.3 Right of Reentry,Termination and Reverter. Without limiting the
generality of subsection 20.2, the Agency will have the right, at its option and in the
manner provided by law for exercising power of termination, to reenter and take possession
of a Development Parcel, including the Common Area,together with all improvements
thereon, and to terminate and revest in the Agency the estate conveyed to the Developer if,
after conveyance of possession or title to the Development Parcel and before the Release of
Construction Covenants is recorded, the Developer, in violation of this Agreement:
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20.3.1 Fails to proceed with or complete the Developer Improvements,
including any Common Area improvements and other Project improvements on or
in connection with the Development Parcel in accordance with the Performance
Schedule for 30 days or more after written notice of such failure from the Agency;
or
20.3.2 Abandons or substantially suspends construction of the Developer
Improvements, including any Common Area improvements or other Project
improvements,on or in connection with the Development Parcel for longer than 30
days after the Agency gives the .Developer notice of such abandonment or
suspension; or
20.3.3 Assigns or transfers, or attempts to assign or transfer, or permits
involuntary transfer, of this Agreement or any rights herein, or the Development
Parcel,the Developer Improvements, including any Common Area improvements
or other improvements to be constructed on or in connection with the Development
Parcel, without the Agency's prior consent in violation of subsection 16.2.
The Grant Deed and any subsequent deed for an approved transfer or conveyance of a
Development Parcel will contain appropriate reference to, and provisions which will give
effect to, the Agency's right to reenter, repossess, terminate and revest as described in this
subsection 20.3. If title to a Development Parcel or any portion thereof revests in the
Agency, the Agency will take all reasonable steps, pursuant to its responsibility under the
Law, to resell or lease the Development Parcel or portion for redevelopment and use in
conformity with the Plan, Any resale or lease will be at the time and in the manner as the
Agency determines, in its sole discretion, to be feasible and consistent with the objectives
of the Plan and the Law. All proceeds of any lease will be retained by the Agency as its
property and applied as permitted by law. The proceeds of any resale of a Development
Parcel, or any part of it, will be applied as follows:
20.3.6 First,.to reimburse the Agency for (i) all costs and expenses
reasonably incurred in connection with the recapture, management and resale of the
Development Parcel or part of it, less any income the Agency derived from the
Development Parcel in connection with the management; (ii) all taxes, assessments
and water and sewer charges respecting the Development Parcel (or, if any of the
Development Parcel is exempt from taxation or assessment or such charges during
the Agency's ownership, then such taxes, assessments or charges as would have
been payable if the Development Parcel were not so exempt); (iii) any payments
necessary to discharge or prevent any subsequent encumbrances or liens due to
obligations, defaults or acts of the Developer, its successors or transferees from
attaching or being made; (iv)any expenditures made or obligations incurred to
complete the Developer Improvements or other Project improvements on the
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Development.Parcel; and (v)any amounts otherwise owing to the Agency from.the
Developer or by its successor or transferee; and
20.3.7 Second, to reimburse the Developer, its successor or transferee, up
to the amount equal to the sum of(i) the purchase price paid to the Agency for the
Development Parcel; and (ii)the out-of-pocket costs incurred to develop and
improve the Development Parcel; less (iii) any gains or income to the Developer
from the Development Parcel, the Developer Improvements, including Common
Area improvements, or other Project improvements on or in connection with the
Development Parcel. Notwithstanding the foregoing, the amount calculated
pursuant to this paragraph shall not exceed the price that the Developer paid the
Agency for the Development Parcel and the fair market value of the improvements
on it when the.Default occurred which led to the Agency's exercise of the rights
under this Subsection 20.3. Any balance remaining after such reimbursements
shall be retained by the Agency.
The Agency's exercise of its right of reentry, termination and reverter on the
Surface Parking.Parcel pursuant to Section 20.3 will be subject to the requirements
of paragraph 10.2.4.
The Developer acknowledges that the Agency's rights and remedies in this
subsection 20.3 are to be interpreted in light of the fact that the Agency will.convey
the.Development.Parcels to the Developer for development of the Project in
furtherance of the Plan, the Master Plan CC&R's and the Master Plan, not for
speculation in undeveloped land or for any other purpose, and that the Agency has
entered into this Agreement in reliance thereon.
20.4 Effect on Security Financing Interests. The rights granted in this Section
20 are subject to and will not defeat, or limit the following:
20.4.1 Any Security Financing Interest permitted by this Agreement;or
20.4.2 Any rights or interests provided in this Agreement to protect the
holder of Security Financing Interests.
20.5 Inaction Not a Waiver of Default. Any failure or delay by the Agency in
asserting any right or remedy for any Default will not be a waiver of the Default or of any
right or remedy. Such failure or delay-will not deprive the Agency of any right to institute
an action or proceeding that it deems necessary-to protect, assert or enforce any right or
remedy.
21 MISCELLANEOUS PROVISIONS.
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21.1 Notice,Demands and Communication. Delivery of notices, demands and
communications between the Agency and the Developer will be sufficient'if given: (i)by
personal delivery, or(ii)by a reputable document delivery service such as Federal Express
that provides a receipt showing date and time of delivery, or(iii)by facsimile via a
machine which issues a confirmation showing the date and time of transmission, and the
office name or fax number of the recipient, or(iv)by deposit into the U.S. mail of
registered or certified mail, return receipt requested,postage prepaid, or(v)by any
commercially acceptable means, properly addressed to the Agency or the Developer as
follows:
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AGENCY:
Redevelopment Agency of the City of Fresno
2344 Tulare Street, Suite 200
Fresno CA 93721
Attention: Executive Director
Facsimile No.: (559)498-1870
WITH COPIES TO:
City Attorney as Ex-Officio Attorney
for the Redevelopment Agency
2600 Fresno Street, Room 2031
Fresno, CA 93721-3602
Facsimile No.: (559)488-1084
DEVELOPER:
OLD ARMENIAN TOWN, LLC
Attention:.Dennis Frye
555 West Shaw Avenue,No. B4
Fresno, California 93704
Facsimile No.: (559) 227-5934
WITH COPIES TO:
Lowell T. Carruth, Esq.
McConnick, Barstow, Sheppard, Wayte & Can-uth LLP
5 River Park Place East
P.O. Box 28912
Fresno, California 93729-8912
Facsimile No.: (559) 433-2300
Any address named above may change its address for notices, demands and
communications by giving notice in the same manner as provided in this subsection.
21.2 Conflict of Interests. No member, official, officer or employee of the
Agency shall have any direct or indirect interest in this Agreement or participate in any
decision relating to this Agreement where the law prohibits such interest or participation.
No officer, employee or agent of the Agency who exercises any function or responsibility
in planning and carrying out the Project, or any other person who exercises any function or
responsibility concerning any aspect of this Agreement or the Project, shall have any
personal financial interest,direct or indirect, in this Agreement or the Project.
a
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21.3 Non-Liability of Officials, Employees and Agents. No member, official,
officer, employee or agent of the Agency or the City will be personally liable to the
Developer, or any successor in interest, for any default by the Agency or for any.amount or
obligation which may become due to the Developer or its successor under this Agreement.
21.4 Unavoidable Delay. Neither Party will be in default where delays or
defaults are due to war, insurrection, strikes, lock outs, riots, acts of the public enemy, acts
of domestic or foreign terrorists,floods, earthquakes, fires, freight embargoes, court order,
or any other similar cause beyond the control and without the fault of the Party claiming an
extension of time to perform. A Party claiming an unavoidable delay must give notice to
the other Party within 10 days.after the delay begins. After that, the Parties may extend the
time for performance by a writing signed by both Parties. This provision does not apply to
delays in the Developer's construction obligations which this Agreement specifically
covers elsewhere.
21.5 .Provision Not Merged with Deeds. The provisions of this Agreement will
not merge into any Grant Deed upon recording.
21.6 Headings and References. The headings of the sections, subsections and
paragraphs in this Agreement are for reference only and do not explain or modify the
provisions of this Agreement. References to section, subsection or paragraph numbers are
to sections, subsections or paragraphs in this Agreement unless expressly stated otherwise.
21.7 Waiver. If either Party waives a breach by the other of any provis.ion of
this Agreement, it will not be a continuing waiver and will not be a waiver of a subsequent
breach of the same or a different provision. Neither Party may waive any provision of this
Agreement except in a writing signed by a duly authorized representative of the Party.
21.8 Attorneys' Fees. If either Party commences a lawsuit or arbitration
proceeding in law or equity to enforce or interpret any provisions of this Agreement, the
prevailing party in such lawsuit or arbitration shall be entitled to recover from the losing
party reasonable attorneys' fees, court costs and legal expenses in the amounts determined
by the court or tribunal having jurisdiction.
21.9 . Broker. The Developer and the Agency each represent and warrant it has
not engaged any broker or finder with respect to this Agreement, the Master Development
Site or the Project. Each Party will indemnify, defend, protect and hold the other Party and
its officers, officials, employees, agents and representatives harmless against any claim by
any person or entity for any broker's or finder's (or similar)fee or commission arising out
of any act or agreement of the indemnifying Party concerning this Agreement, the Master
Development Site or the Project.
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21.10 Severability. if a court of competent jurisdiction holds any term, provision,
covenant or condition of this Agreement to be invalid, void or unenforceable, the
remainder of the provisions will continue in effect.
2 1.1 1 Binding on Successors. Subject to the limitations on the Developer's
transfer or assignment of this Agreement and the .Development Parcels in subsection 16.2,
this Agreement is binding upon and inures to the benefit of the members,officers,
transferees, successors-in-interest and assigns of each Party. Any reference in this
Agreement to a specifically named party applies to any member, officer, transferee,
successor-in-interest or assign of that party who acquires an interest according to the terms
of this Agreement or under law.
21.12 Relationship of the Parties. The relationship between the Agency and the
Developer is and will remain solely that of a California redevelopment agency and an
independent private redeveloper of property within.a redevelopment project area pursuant
to the Law. Nothing in this Agreement, the Grant.Deeds or any other document executed
in connection with this Agreement creates a partnership,joint venture, agency,
employment relationship or other relationship between the Agency and the Developer or
any of the Developer's contractors, subcontractors, employees,agents, representatives,
executors, administrators, transferees, successors-in-interest or assigns. The Parties do not
intend anything in this Agreement to establish a principal and agent relationship behveen
the Parties. The Agency will have no rights, powers,duties or obligations respecting the
development, operation, maintenance or management of the Development Parcels or
improvements thereon except as expressly provided herein, in the Deeds or in the Plan.
The Developer will indemnify, defend and hold the Agency and its officers, officials,
employees, agents, boards and volunteers harmless from any claim against the Agency that
arises from a claim of a partnership or joint venture with the Developer,
21.13 Nature of the Developer's Obligations. Tile Developer's obligation to
complete the Developer improvements, the Master Plan Improvements and the Project
generally is a private undertaking. After the Agency conveys title or possession of a
Development Parcel to the Developer, the Developer will have exclusive control over the
Development Parcel, subject to the ten-ns of this Agreement, the Master Plan CC&R's, the
Master Plan, the Plan, the Law and all other applicable federal, state and local laws,
ordinances, codes, regulations, standards and policies. By entering and performing this
Agreement, the Agency does not approve or endorse the Project except to carry out the
redevelopment purposes, goals, policies and objectives of the Plan and the Law,
21.14 Entire Understanding of the Parties. This Agreement includes the
exhibits and attachments referenced herein, the Master Plan, the Master Plan CC&R's and
the Grant Deeds. It is the entire understanding and agreement of the parties regarding the
subject matter in this.Agreement. This Agreement supersedes all prior discussions,
understandings and agreements, oral or written. Each Party enters this Agreement solely
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on the representations herein and on its own independent investigation of the facts each
deems material.
21.15 Modifications, Amendments. The.Parties will not modify or amend this
Agreement except by written instrument signed by the parties and duly approved as
required by law.
21.16 Agency Approvals and Actions. Whenever this Agreement requires action
or approval by the Agency, the Executive Director or the Redevelopment Administrator of
the Agency is authorized to act for the Agency unless specifically provided otherwise.,
21.17 Consent, Reasonableness. Unless this Agreement specifically authorizes a
Party to withhold its approval, consent or satisfaction in its sole discretion, a Party will not
act unreasonably in withholding,conditioning or delaying approval or consent,
21.18 Cooperation and Further Assurances. The Parties will take such actions
and execute such documents as necessary to carry out the intent and purposes of this
Agreement.
21.19 Third Party Beneficiaries, The State's Department of General Services,
Public Works Board, Administrative Office of the Courts and Fifth Appellate District are
beneficiaries of this Agreement and shall have the right, but not the obligation, to pursue or
enforce this Agreement against the Developer. Except as expressly provided in the
preceding sentence, the Parties do not intend anything in this Agreement to create any
third party beneficiaries to this Agreement. No person or entity other than the Agency, the
Developer, the State's Department of General Services, Public Works Board,
Administrative Office of the Courts or.Fifth Appellate District and their permitted
transferees, successors and assigns are authorized to enforce the provisions of this
Agreement.
21.20 Governing Law and Venue. The provisions of this Agreement shall be
interpreted and enforced, and the rights and duties (both procedural and substantive) of the
parties hereunder shall be determined, according to California law.
Venue and jurisdiction (personal and subject matter) for any lawsuit commenced by either
Party in connection with this Agreement shall be in the Superior Court of Fresno County or
in the United States District Court for the Eastern District located in Fresno County.
21.21 Exhibits. Each exhibit referenced herein is by such reference incorporated
into and made a part of this Agreement for all purposes. However, the provisions in the
body of this Agreement will prevail over any inconsistent provisions or references in any
exhibit.
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21.22 Interpretation. This Agreement in its final form is the result of the
combined efforts of the Parties. if any provision of this Agreement is found ambiguous,
the,ambiguity will be resolved by construing the terms of this Agreement according to their
generally accepted meaning. Masculine, feminine or neuter gender terms and singular or
plural numbers will include others when the context so indicates. The word "including"
will be construed as followed by the words "without limitation" or"but not limited to."
21.23 Computation of Time. The Parties will compute the time within which an
act is to be completed by excluding the first day(such as the day escrow opens)and
including the last day, unless the last day is a holiday, Saturday or Sunday, in which case
the last day also shallbe excluded.-
21.24 Legal Advice. Each Party, in signing this Agreement, does so with
knowledge of its legal rights. Each has received independent legal advice from its own
legal counsel, or has chosen not to consult legal counsel. Each Party will be solely
responsible for its own attorneys' fees in negotiating, reviewing, drafting, and obtaining
the approval of this Agreement and all related agreements or documents.
21.25 Counterparts. The Parties may sign this Agreement in counterparts. Each
counterpart, when executed and delivered, will be one instrument with the other
counterparts. The Parties will sign at least four duplicate originals of this Agreement.
JReurainder of page left blank intentionally;signatures on next page.]
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07/06/2005 X2:26 805-969-9758 PAGE 02/04-
Each
2/04Each Party represents that this Agreement has bees execured on the Party's behalf on or as of the
datc statcd bclaw by its duly authorizcd mpresenfative(s).
REDWELOPMENT AGENCY OF THE OLD ARMENIAN TOWN,LLC; .
CITY OF FRESNO 3 California limited liability company
By: By:
—K-j
Marlene Murphey, "
.Interim xecuriveDirector Nance: Richard V. Gunner
Dated: / �I D Title: Member
Dated: July 6, 2005
THE ABOVE PARTIES ARE TO SIGN THIS AGREEMENT BEFORE A iVOTARYPUBLTC.
NOTARY ACIZ?VOWLEDGMENTS ARE ATTACHED FOR CONVENIENCE.
ATTEST: APPROVED AS TO FOILM:
REBECCA KLISCH HILDA C- NTO MONTOY
Ex Officio Clerk Ex Officio Attorney
Redevelopment Agency of the Redevelopment Agency of the
City of Fresno City of Fresno
s
BY' - ByC 0
-
Deputy 9Z-11t}dA,ssistaatlSpe 'a) Counsel
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Dated: ?4--1 O Dated: C ZQ 5
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of Fresno
On .-ruly2OS_ before me, Neil Hansen
ata Name arW Tela of Of(cer(a.g..*Jam Dos.Notary PubGcl
personally appeared Marlene Murphey
Namef s)of s;pner(e)
b personally known to me–OR–D proved to me on the basis of satisfactory evidence to be the person(s)
whose name(s)is/are subscribed to the within instrument
and acknowledged to me that helshelthey executed the
�YY NEIL HAN�SE'N ' same in his/her/their authorized capacity(ies),and that by
Comm.#1459413 !� hislher/lheir signature(s)on the instrument the person(s),
NOTARY PUBLIC•CALIFORNb. or the entity upon behalf of which the person(s) acted,
lieFresno Cbentr .
w Gomm.Erpbes ft.30.20 executed the instrument.
WITNESS my hand and official seal.
re of Notary Public
OPTIONAL
Though the information below is not required by law,it may prove valuable to persons relying on the document and could prevent
fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document: Master Dispositon & Dev. Agreement
Document Date: July 1 1 , 2005 Number of Pages:
Signer(s)Other Than Named Above: Richard V. Gunner
Capacity(les) Claimed by Signer(s)
Signer's Name: Signer's Name-
0 Individual O Individual
Q Corporate Officer Interim Ex. Dir. O Corporate Officer
Title(s): Title(s):
❑ Partner--0 Limited ❑General O Partner—D Limited O General
❑ Attomey-in-Fact 0 Attomey-in-Fact
❑ Trustee O Trustee
❑ Guardian or Conservator O Guardian or Conservator
❑ Other: "p of MUM here O Other: Top of thumb here
Signer Is Representing: Signer Is Representing:
unA of Fresno
6"1
O 199.1 N90orW Notary Aa30tle kn.6230 Rommel Ave.,P.O.Boot 7164•Canopy Perp CA 91309.7181 Prod,No.5907
Reader Cao Toe-Fres t-BOa876�i827
Description: Fresno,CA Document-year.DocID 2005.171775 Page: 75 of 114
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT No,5907
r
State of &1 forma
County of Fresno
On July F, 2405 before me, Debra Ann White, Notary Public ,
DATE NAME,TITLE OF OFFICER-E.G.,'JANE DOE,NOTARY PUBLIC
( personally appeared Richard V. Gunner
NAME(S)OF SIGNER(S)
Fxcpersonally known to me - OR - ❑ proved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) is/are
subscribed to the within instrument and ac-
knowledged to me that he/she/they executed
the same in his/her/their authorized
capacity(ies), and that by his/her/their
Signature(s) on the instrument the person(s),
or the entity upon behalf of which the
person(s) acted, executed the instrument.
,ypa 0r r4 DEBRAANNWHITE -.WITNESS my hand and official seal.
,' ZJ•`: COMM.,11473989
H ' NOTARY PUBLIC-CALIFORNIA (4
tan FRESNO COUNTY ----� 1�•'�"'•""' L'� '
r„e.. My Comm.Exp.March 2.2008 1�
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SIGNATUR�A Y
OPTIONAL
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fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
❑ INDIVIDUAL
❑ CORPORATE OFFICER
TITLE OR TYPE OF DOCUMENT
TITLES)
❑ PARTNER(S) ❑ LIMITED
❑ GENERAL
❑ ATTORNEY-IN-FACT NUMBER OF PAGES
❑ TRUSTEE(S)
GUARDIAN/CONSERVATOR
❑ OTHER: v
DATE OF DOCUMENT
SIGNER IS REPRESENTING:
NAME OF PERSON(S)OR EWITY(IES)
SIGNER(S)OTHER THAN NAMED ABOVE
01993 NATIONAL NOTARY ASSOCIATION-8238 Remmet Ave.,P.O.Box 7184•Canoga Park,CA 9130
Description: Fresno,CA Document-Year.DoclD 2005.171775 Page: 76 of 114
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MASTER PLAN
Exhibit A
Description: Fresno,CA Document-Year.DocID 2005.171775 Page: 77 of 114
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Description: Fresno,CA Document-Year.DocID 2005.171775 Page: 78 of 114
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LEGAL DESCRIPTION OF MASTER DEVELOPMENT SITE
Exhibit B
Description: Fresno,CA Document-Year.DoclD 2005.171775 Page: 82 of 114
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LEGAL DESCRIPTION of MASTER DEVELOPMENT SITE
Being all lots contained within BLOCKS 121 and 122, together with LOTS I.through 6 and 26 through 32 in
BLOCK 183 and LOTS I through 6 and 26 through 32 in BLOCK 184 in the TOWN (now CITY)of FRESNO,
and a portion of the alleys in said BLOCKS 121, 122, 183 and 184,and a portion of Santa Clara Street and "N"
Street adjacent to said blocks,as said lots,alleys, and streets are shown on the map of said TOWN of FRESNO
Recorded in BOOK 1,PAGES 2 AND 26 of PLATS,FRESNO COUNTY RECORDS,said parcel being more
particularly described as follows:
COMMENCING at the west corner of LOT 27.of said BLOCK 121 in said TOWN(now CITY)of
FRESNO;
thence,NORTH 48°58'33"EAST,along the northwest line of said BLOCK 121, a distance of 320.62
FEET to the intersection.with the northeast lines of said BLOCK 121;
thence,NORTH 49°05'58"EAST, a distance of 80.00 FEET to the intersection with the west corner of
BLOCK 122;
thence,NORTH 48°58'40"EAST, along the northwest line of said BLOCK 122,a distance of 293.72 feet;
thence, NORTH 86°00'31"EAST, a distance of 26.23 FEET;
thence, SOUTH 40°59'42"EAST,a distance of 38.09 FEET;
thence, SOUTH 45°27'21"EAST a distance of 90.00 FEET to the intersection with the northeast line of
said BLOCK 122;
thence, SOUTH 40°59'37"EAST, along said northeast Linc a distance of 242.23 FEET;
thence, SOUTH 03°59'01"WEST,a distance of 16.42 FEET;
thence,SOUTH 48°57'44"WEST, a distance of 38.39 FEET;
thence, SOUTH 40°59'42"EAST,a distance of 51.00 FEET; -
thence, NORTH 48°57'44".EAST,a distance of 37.45 FEET;
thence,SOUTH 86°00'27'EAST,a distance of 17.75 FEET to the intersection with the northeast line of
BLOCK 183
thence, SOUTH 40°58'37"EAST, along said northeast line a distance of 108.80 FEET to the intersection
with the State Highway 41 right-of-way;.
thence, SOUTH 38°46'42" WEST,along said right-of-way,a distance of 172.23 FEET;
thence,SOUTH 46°2V]7"WEST,continuing along said right-of-way,a distance of 189.90 FEET;
thence,SOUTH 52°03'34"WEST, continuing along said right-of-way, a distance of 190.52 FEET;
thence, SOUTH 09°47'38" EAST, continuing along said right-of-way, a distance of 38.62 FEET;
thence,SOUTH 48°58'38"WEST,continuing along said right-of-way,a distance of 150.28 FEET to the
intersection with.the southwest line of BLOCK 184;
thence,NORTH 4)°00'51"WEST, along said southwest line a distance of 174.74 FEET to the intersection
with the northwest line of said BLOCK 184;
thence,NORTH 41°01'13" WEST,a distance of 80.00 FEET to the intersection with the south comer of
BLOCK 121;
thence,NORTH 41°00'48"WEST,along the southwest lineof said BLOCK 121,a distance of 379.97
FEET to the intersection with the northwest line of said BLOCK 121 and the POINT OF
COMMENCEMENT.
CONTAINS 9.97 ACRES, MORE OR LESS.
END DESCRIPTION
The information contained herein is per record data and is for the sole
purpose of the Master Disposition and Development Agreement. ;
Exhibit B
Description: Fresno,CA Document-Year.DocID 2005.171775 Page: 83 of 114
Order: 05 Comment:
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DIAGRAM OF MASTER DEVELOPMENT SITE
Exhibit C
Description: Fresno,CA Document-Year.DoclD 2005.171775 Page: 84 of 114
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• Description: Fresno,CA Document-Yearr:'DocID 2005`1.71775,:Page..' 85 of- 114
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Exhibit D -
Description: Fresno,CA Document-Year.DocID 2005.171775 Page: 86 of 114
order: 05 Comment:
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SCHEDULE OF PERFORMANCE
Conditions Precedent to Agency's Obli ations.
I. Submission-Evidence of Certain Documents. 1. On or before the Commencement
The Developer shall submit to the Agency Loan Date for Phase 1 (45 days after the
Commitments and Financing Plan, including the Effective Date) or Phase ll, as
construction loan commitment from one or more applicable.
qualified lenders.
2. Site Conditions. 2. Within 45 days after the
The Developer shall deliver certification to the Commencement Date for Phase I.
Agency confirming that.the Developer has accepted all
conditions of the Master Development Site, including
any Acquisition Parcels, that are revealed in the
Toxics Reports.
3. Master Plan CC&R's, Including Reciprocal 3. Prior to conveyance of any
Pedestrian Access Rights for Phase 1. Development Parcel or portion 'of
The Master Plan CC&R's, including a provision giving the Common Area, but no later than
each owner mutual reciprocal easements over and 45 days after the Commencement
across the Common Area, shall be executed by the Date for Phase 1.
Developer and delivered to the Agency. (See Item 14
for recording re uirements.
Conditions Precedent to Commencement of Parties' Pre-Disposition Activities.
4. Satisfaction of Conditions in Sections 2 and 3. 4. Within 45 days, after the
The Developer and Agency shall satisfy or the other Commencement Date for Phase I or
party may waive the conditions in Section 2 and 3 of Phase ll, as applicable.
the DDA (except where different dates/times are
specified in Sections 2 or 3 and in this Schedule).
5. Financing Plan. 5. Within 60 days after the
The Developer shall have obtained approval of its Commencement Date for Phase I or
Financing Plan for Phase 1 or Phase 11, as applicable, Phase 11, as applicable.
from Agency's Executive Director or Redevelopment
Administrator.
6. Agency Identification of Available Funds for Phase 6. Within 45 days after the
I. Commencement Date for Phase I.
The Agency will have identified potentially Available
Funds for its costs related to Phase 1.
Exhibit D
Page I of 9
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Description: Fresno,CA Document-Year.DoCID 2005.171775 Page: 87 of 114
Order: 05 Comment:
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SCHEDULE OF PERFORMANCE
7. Agency. Identification of Available Funds for Phase 7. Within 45 .days . after the
11. Commencement Date for Phase 11.
The Agency will have identified potentially Available
Funds for its costs related to Phase 11.
8. Condition of Title of Agency or Acquisition Parcels 8.(a) Within 45 days after the
in Phase I or Phase 11,as applicable. Effective Date.
(a) The Agency shall deliver to the Developer copies
of the most recent CLTA or other preliminary title
reports for all Agency Parcels owned by the Agency in
Phased or Phase II as of the Effective Date. (b) Within 15 days after obtaining
preliminary title report for an
(b)The Agency shall deliver to the Developer copy of Acquisition Parcel.
preliminary title report for each Acquisition Parcel in
Phase I or Phase II . (c) Within. 15 days after receipt of
the title report..
(c) The Developer shall deliver notice to any
objections to exceptions in preliminary title report.
9. Phase 1 Parcel Map Preparation & Application 9. Commence immediately upon
Fees. the Commencement Date for Phase
The Developer shall prepare the tentative Parcel Map I OR date the Agency has acquired
to establish each Development Parcel and the portion title to or possession of all
of the Common Area in Phase I as separate legal Acquisition Parcels in Phase I,
parcels and shall take all steps to finalize and record whichever is later; finalize and
the Parcel Map. record Parcel Map prior to close of
escrow for first Development Parcel
in Phase I.
10. Phase 11 Parcel Map Preparation &Application 10. Commence immediately upon
Fees. the Commencement Date for Phase
The Developer shall prepare the tentative Parcel Map 11 OR date the Agency has acquired
to establish each Development Parcel and the portion title to or possession of all
of the Common Area in .Phase 11 as separate legal Acquisition Parcels in Phase 11,
parcels and shall take all steps to finalize and record whichever is later; finalize and
the Parcel Map. record Parcel Map prior to close of
escrow for first Development Parcel
in Phase 11.
Exhibit D
Page 2 of 9
Description: Fresno,CA Document-Year.DoclD 2005.171775 Page: 88 of 114
Order: 05 Comments
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SCHEDULE OF PERFORMANCE
Conditions Precedent to Conveyance,Acquisition, Delivery and Acceptance of
Possession of Development Parcels.
11. Loan Closing. 11. Construction loan escrow shall
The Developer's construction lender shall have opened close concurrently with the Closing
an escrow for its construction loan for Phase l or Phase for the escrow for a Development
11 Parcel in Phase I or Phase 11, as
applicable.
12. Acquisition Parcels and Relocation. 12. Acquisition or right of
The Agency will use its best efforts to acquire the possession and relocation prior to
Acquisition Parcels in Phase I and Phase II and recordation of the Parcel Map for
relocate all tenants. Phase I or Phase 11, as applicable.
Convey title or deliver possession
as part of a Development Parcel by
the Outside Date for close of
escrow for that Development
Parcel, or as mutually extended
pursuant to Section 7.3 of the
Agreement (unless Acquisition
Parcel severed from Project as
provided in Section 7.3).
13. Notice of Readiness to Convey & Certificate of 13.
Readiness to Proceed.
(a) The Agency will notify the Developer when it is (a) On or after the Commencement
prepared to convey and/or deliver possession of any Date for Phase I or Phase It and
Development Parcel in Phase 1 or Phase 11 to the recordation of Parcel Map for Phase
Developer. I or Phase 11,as applicable.
(b) The Developer will certify to the Agency in (b)No later than 30 days before the
writing that the Developer is ready to close escrow and date scheduled for conveyance of
construct the Developer Improvements on the the Development Parcel in Phase
Development.Parcel(s). or Phase Il, as applicable; specified
in this Schedule of Performance.
Exhibit D
Page 3 of 9
Description: Fresno,CA Document-Year.DocID 2005:171775 Page: 89 of 114
Order: 05 Comment:
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14. Recordation of Master Plan CC&R's for Phases 1 14. Record on each Development
and ll. Parcel and any portion of the
The executed Master Plan CC&R's shall be recorded Common Area in Phase I or Phase
on all real property in Phase 1 and Phase 11. 11 by the Escrow Holder as a
condition of close of Escrow and
conveyance of that Development
Parcel or portion of the Common
Area to the Developer.
Disposition of Development Parcels.
15. Escrow. 15. Within five business days after
The Agency and the Developer will open the Escrow delivering the Developer's
for sale.and purchase of any Development Parcel in certificate of readiness to proceed
Phase I or Phase 11. for that Development Parcel.
16. Purchase Price. The Developer shall deposit with 16. Within 10 business days after
the Escrow Holder the Purchase Price of each the Developer delivers the
Development Parcel in Phase I and Phase ll. certificate of readiness to proceed
for that Development Parcel
17, Concurrent Close of Construction Financin,s,, or 17. Prior to or concurrently with
Estoppel Certificate, the close of the Escrow for that
The Agency and the Escrow Holder shall receive from Development Parcel(s) unless the
the Developer's construction lender a written parties mutually agree to the
commitment to close and fund the Developer's extension of time for Closing
construction financing for a Development Parcel when pursuant to paragraph 8.3.5.
escrow closes; or if financing is for more than one
Development Parcel, then the Developer shall deliver
an estoppel certificate from its construction tender
pursuant to subparagraph 8.3.5.2.
18. Condition of'ritle of Development Parcels. 18. The Developer shall provide.
The Agency and the Developer shall review a standard written objections to Exceptions in
preliminary title report and shall approve the condition the preliminary title report within
of title for each assembled Development Parcel(s) 15 days after receipt of the
pursuant to paragraph 4.2.4. preliminary title report (subject to
limitations in paragraph 4.2.4).
Exhibit D
Page 4 of'9
Description: Fresno,CA Document-Year.DocID 2005.171775 Page: 90 of 114
Order: 05 Comment:
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19. Close of Escrow. 19. By the Outside Date for that
The Agency shall convey and the Developer shall _Development Parcel(s) specified in
accept title to any individual Development Parcel(s) items 20 through 23 of this
through Escrow when the conditions to close are Schedule, or any later date to which
satisfied or waived. the parties may agree pursuant to
paragraph 8.4.5.
20. Outside Date for Close of-Escrow for Phase 1 20. On or before October 2005, but
Common Area and Office Building No 1 Parcels . no later than February 24, 2008 (48
(Phase JA). months from February 25, 2004, the
The Agency shall .convey and the Developer shall Effective Date of the State
accept title to the portion of property located within- Agreement).
Phase 1 which includes a portion of the Common Area
Parcel and the Office Building No. 1 Parcel (Parcel
"D"
21. Outside Date for Close of Escrow for Phase 1 21. . On or before December 1,
Common Area, the Surface Parking Parcel and Office 2007.
Building No. 3 Parcels(Phase IB).
The Agency shall convey and the Developer shall
accept title to the portion of property located within
Phase 1 which includes a portion of the Common Area
Parcel, the Surface Parking Parcel (Parcel "H") and
the Office Building No. 3 Parcel Parcel "F").
22. Outside Date for Close of Escrow for Phase 11 22.. On or before April I,2008.
Common Area and Office Building No. 2 Parcels.
The Agency shall.convey and the Developer shall
accept title to the portion of property located within
Phase 11 which includes a portion of the Common Area
Parcel and the Office Building. No. 2 Parcel (Parcel
"E,
23. Outside Date for Close of Escrow for Phase 11 23. On or before April 1,2008.
Common-Area and the Cultural Center Parcels.
The Agency shall convey and the Developer shall
accept title to that remaining portion of property
located within Phase 11 which includes a portion of the
Common Area Parcel and the Cultural Center Parcel
(Parcel "B") (subject to the requirements of paragraph
8.1.1.1 .
Exhibit D
Page5of9
Description: Fresno,CA Document-Year.DoclD 2005.171775 Page: 91 of 114
Order: 05 Comment:
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SCHEDULE OF PERFORMANCE
Conditions Precedent to Construction.
24. Developer's submission of development-related ,24. Within 30 days after Closing of
items. Escrow for the applicable
The Developer shall prepare and submit to the Agency Development Parcel.
and the City, for review'and.approval, the Developer's
development-related items as outlined in Subsection
9.2.
25. Approval of Developer's development-related 25. Within 30 days after receipt of
items. the development-related items.
The Agency shall approve or, disapprove the
Developer's development-related items in writing.
26. City and Other Governmental Actions. 26. Within 60 days after the
The Developer shall obtain any City or other Closing in which the Agency
governmental permits,or approvals necessary for the conveys the Development Parcel to
Developer to complete the Project on the Master the Developer or delivers exclusive
Development Site and any individual Development possession to the Developer under a
Parcel. prejudgment order of possession; or
at such other time as required by the
Municipal Code or other applicable
law.
Deveto er's Construction Obligations for Individual Develo ment.Parcels.
27. Development of Individual Development Parcels. 27. Within 90 days after the
The Developer shall begin construction of the Closing of Escrow for the
Developer Improvements.on each Development Parcel Development Parcel; or if the City
as set forth in the Scope of Development. has not issued a building permit
within the 90-day period through no
fault'of the Developer, then within
30 days after the City issues the
building permit.
Exhibit D
Page 6 of 9
Description: Fresno,CA Document-Year.Doc= 2005.171775 Page: 92 of 114
Order: 05 Comment:
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SCHEDULE OF PERFORMANCE
28. Commence Construction of Office Building No. I 28. Subject to No. 27, on or before
The Developer shall commence construction of Office October 1, 2005, but no later than
Building No. I and its associated landscaping. February 24, 2008 (48 months from
February 25, 2005, the Effective
Date of the State Agreement).
29. Complete Construction of Office Building No. 1 29. On or before October 1, 2009,
The Developer shall complete the construction of but no later than two years after
Office Building No. i with its associated landscaping. completion of the Courthouse
Facilities by the State.
30. Commence Construction of the Surface Parking 30. Subject to No. 27, on or before
Parcel. May I,2009.
The Developer shall commence construction of the
Surface Parking Facilities and its associated
landscaping on the Surface Parking Parcel.
31. Complete Construction of the Surface Parking 31. On or before October 1,2009.
Parcel.
The .Developer shall complete the construction of the
Surface Parking Facilities on the Surface Parking
Parcel with its associated landscaping.
32. Commence Construction of Office Building No. 2 32. Subject to No. 27, on or before
and First Phase of Parking Structure. July 1,2008.
The Developer shall commence construction of Office
Building No. 2, the first-phase of'the Parking Structure
(on the Parking Structure Easement), and related
landscaping.
33. Complete Construction of Office Building No. 2 33, Within 24 months after
and First Phase of Parking Structure. commencement, but no later than
The Developer shall complete the construction of July I,2010.
Office Building No. 2, the first phase of the Parking
Structure and related landscaping.
34. Commence Construction of Office Building No. 3
and Second Phase of Parking Structure. July
Subject to No. 27, on or before
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The Developer shall commence construction of Office uly 1, 2010.
Building No. 3, the second phase of the Parking
Structure on Surface Parking Parcel), and associated.
Exhibit D
Page 7 of 9
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SCHEDULE OF PERFORMANCE
landsca in .
35. Complete Construction of Office Building No..3 35. Within 24 months after
and Second Phase of Parking Structure. commencement, but no later than
The Developer shall complete the construction of July I,2012.
Office Building No. 3, the second phase of the Parking
Structure and associated landscaping.
36. Commence Construction of the Armenian Cultural 36. Subject to No.27 and
Center, paragraph 8.1.1.2 of the Agreement,
The. Developer shall commence construction of the on or before July I, 2008.
Armenian Cultural Center on the Cultural Center
Parcel.
37. Complete Construction of the Armenian Cultural' 37. Subject to paragraph 8.1.1.2,
Center. within 18 months after
The Developer shall complete the construction of the commencement, but no later than
Armenian Cultural Center and associated landsca in December 1, 2009.
Master Plan lm rovements and Obligations
38. Agency Phase l Improvements. 38. Before the date for completion
The Agency and/or the City shalt construct and install of the Courthouse Facilities and
all work and improvements specified in Sections 9.3.1 State Parking Facilities as provided.
and •9.3.2 of the State Agreement,. including in the State Agreement, subject to
installation of curb, gutter, sidewalk and trees and any extensions provided in the State
landscaping improvements in the public street rights- Agreement.
of-way along the boundaries of the Courthouse Parcel,
the State Parcel and the rest of Phase I of the Master
Plan.
39. Agency Construction of State Parking Facilities. 39. On or before the date the State
The Agency shall construct the State Parking Facilities accepts completion of construction
on the State Parking Parcel, including on-site of the Courthouse Facilities, subject
landscaping and curb, gutter, sidewalk, street trees and to any extensions as provided in
landscaping in the public right-of-way along the Section 9.3.1. of the State
perimeter of the State Parking Parcel in accordance Agreement.
with the State Agreement and this Agreement;
provided that, subject to approval of the State, the
Agency shall not construct the State Parking Facilities
if, at the time the State gives the Agency notice to
commence construction .under Section 9.3.1 of the
Exhibit D
Page 8 of 9
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SCHEDULE OF PERFORMANCE
State Agreement, the Developer has given the Agency
a certificate of readiness to proceed with construction.
of the first phase of the Parking Structure on the
Parking Structure Easement and has satisfied all
conditions precedent to construction for the first phase
of,the Parking Structure as specified in Section 9 of
this Agreement,
40. Developer Master Plan Improvements Required 40. Before the date for completion
by State Agreement. of the Courthouse Facilities and
Except for those Phase I improvements expressly State Parking Facilities as provided
assumed by the Agency, the Developer shall construct in the State Agreement.
and install all obligations, work and improvements
within the Master Plan specified in and required by the
State Agreement and paragraphs 11.2.1, 11.2.2 and
11.2.3 of this Agreement, including the Common Area
between the Courthouse Parcel and the Office
Building No. I Parcel as a decorative landscaped plaza
with water features.
41. Final Completion of Master Plan Improvements. 41. Except as provided in No. 38,
The Developer shall complete all .other Master Plan on or before lune 30,2012.
Improvements as described in the Scope of
Development.
42. L;ahvosh Bakery Proiect 42. Within 60 days after the
The Agency shall use its best efforts to negotiate and Commencement Date for Phase 11,
enter into the owner participation agreement with the unless the Agency, the Developer
owner for development of the L,ahvosh Bakery Project. and the owner agree to a later date.
Exhibit D
Page 9 of 9
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SCOPE OF DEVELOPMENT
Exhibit E
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SCOPE OF DEVELOPMENT
The Agency has selected the Developer to be the master developer of approximately 9.72 acres located in
the Convention Center Redevelopment Project Area and generally bounded by O Street,Ventura Street,M
Street and Freeway 41 ((he"Master Development Site"), The estimated value of the Master Development
Improvements upon complction is an approximate $163,613,000.
The Developer shall develop the Master Development Site,other than the Courthouse Parcel and the State
Parking Parcel(but including the Parking Structure Easement on,over and under the State Parking Parcel),
in two phases,Phase I and Phase II as shown on the Master Plan attached as Exhibit A(the"Master Plan"),
as an integrated high-quality mixed-use commercial development containing office, retail, parking,
restaurant,service and community uses and related facilities,as specified in the Master Plan(Exhibit A)and
this Scope of Development (Exhibi(E), and in accordance with the Schedule of Performance (Exhibit C),
and all. other provisions of the Agreement. The proposed name of the Master Development Site, after
development, is "Old Armenian Town." Pursuant to the Redevelopment Plan for the Convention Center
Redevelopment Project Area(the"Plan")and the Master Plan;the Agency hasentered into the separate State
Agreement with the State of California, acting through its Department of General Services, whereby the
Agency has assembled an approximate 2.05 acres of the 9.72 acres and conveyed the Courthouse Parcel and
the State Panting Parcel to the State for development,as part of Phase 1, of a multi-level court, parking lot
and related facilities for use by the California Fifth District Court of Appeal, all pursuant to and as an
integrated part of the Master Plan.
The Developer shall develop the balance of the Old Armenian Town Project, in two phases,with(i)office
uses (approximately 740,000 square feet), (ii) retail uses (approximately 70,000 square feet in total,
distributed throughout the three office buildings),(iii)cause the development of an Armenian Cultural Center
(approximately 40,000 square feet)with its own 50 spaces parking facility,and appurtenant facilities and
improvements, including a 450 space on-site parking lot as part of Phase 1, with an additional multi-story
parking structure as part of Phase 11.As part of the Project,the Developer also shall develop,construct and
install specified Common Area improvements on the Master Development Site,as shown in the MasterPlan,
tying the Project improvements on individual parcels together with amenities of landscaping,water features
and decorative pedestrian walkways.
The Project also includes the vacation of portions of Santa Clara Street and the vacations of N Street,the N
Street/OStreet alley,and the M Street/N Street alley within the boundaries ofthe Master Development Site;
acquisition and assembly of individual properties within the Master Development Sitebythe Agency; and
removal, relocation, and/or demolition.of most of the existing structures presently located on the Master
Development Site. The existing Lahvosh Bakery is to be maintained at its current location within the Master
Development Site with the Manufacturing/distribution portion moved off-site.
Without uniting the generality of the foregoing description, specific Project improvements on individual
Exhibit"E"
Pagel of 2
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parcels will consist of:
1. 5'District Court of Appeal--3 story,60,000 square feet(SF)to be Located on the southwest corner
of Ventura at.O Street (to be developed by the State as described in the State Agreement);
2. One surface parking lot for the 5"District Court of Appeal to be located directly south of the
Court with right-in/right-out only access from O Street (to be developed by the State as described
in the State Agreement);
3. One surface parking lot for the 5" District Court of Appeal to be located south of Santa Clara
between N and O Streets with access from either M or O streets(to be developed by the Agency on
behalf of the State as described in the State Agreement);
4. Office Building No. 1 -- 5 to 8 stories, 100,000 to 220,000 SF to be located north of Santa Clara
between N and O Streets(to be developed by the Developer in Phase 1);
5. One surface parking lot for Office Building No. 1,containing approximately 450 parking spaces,to
be located partially north and south of Santa Clara between M and N with access from either M or
O Streets,to temporarily accommodate the vehicle parking requirements for Office Building No.
until construction of the first phase of the Parking Structure described in item 8 below (to be
developed by the Developer in Phase 1);
6. Armenian Cultural Center—.30,000 to 40,000 SF,to be located on the southwest corner of Ventura
at M(to be developed by the Developer, and/or by ACF,in Phase ]f);
7. Office Building No. 2 --5 to 8 stories, 100,000 to 250,000 SF to be located north of Santa Clara .
between M and O Streets adjacent to Ventura Street(to be developed by the Developer in Phase 11);
8. The,first phase ofa Parking Structure,containingapproximatcly 505 parking spaces,located within
a Parking Structure Easement above,on and under the Courthouse surface parking lot south of Santa
Clara Street, with access from either M or O Streets; to accommodate the vehicle parking
requirements for Office Building No.I (in lieu of the surface parking lot described in item 5 above)
(to'be developed by the Developer in Phase 11);
9. Office Building No. 3 --7 to 14 stories, 210,000 to 345,000 SF to be located south of Ventura
between the Office Building No. I and the existing Lahvosh Bakery,on the northern portion of the
,parcel used for the surface parking lot described in item 5 above(to be developed by the Developer
in Phase 1>); and
10. The second phase of the Parking Structure, containing approximately 850 parking spaces, located
on the remaining portion of the parcel used for the surface parking lot described in item 5 above,to
accommodate the vehicle parking rcquirementsof the,Project improvements in Phase 11,with access
from either M or O Streets (to be developed by the Developer in Phase 11).
Exhibit"E"
Page 2 of 2
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FORM OF GRANT DEED
Exhibit F
1.
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Recorded By and.For the Benefit of:
Redevelopment Agency
of the City of Fresno
When Recorded, Mail To:
Redevelopment Agency of the
City of Fresno
Attention: Executive Director
2344 Tulare Street;Suite 200
Fresno, CA. 93721
SPACE ABOVF THIS LINE FOR RECORDER'S USE
PUBLIC AGENCY RECORDING - NO FEES DUE "
GRANT DEED
The REDEVELOPMENT AGENCY OF THE CITY OF FRESNO, a body corporate and
politic of the State Of California ("Grantor"), acting to cavy.out the redevelopment plan for the
Convention Center Redevelopment Project,("Project")under the California Community
Redevelopment Law (the"Law'), grants to OLD ARMENIAN TOWN, LLC, a California
limited liability company ("Grantee"), all that real property in the County of Fresno, State of
California, described as follows:
(SEE ATTACHED EXHIBIT A,
which by this reference is incorporated herein) .
(the"Parcel"), subject to the following: (a) all matters of record affecting the title and use of the
Parcel including, without limitation, utility easements and other easements Of record; (b) the
"Declaration of Master Plan Covenants, Conditions and Restrictions for the Old Armenian Town
Project," recorded , 2005, as Document No. , Official Records (the
"Master Plan CC&R's");.(c) the"Old Armenian Town Development Property Owners "
Association Declaration," recorded , 20_, as Document No.
Official Records; (d) real property faxes and assessments not yet due; (e) the redevelopment plan
for the Project, adopted January 12, 1982, ny Fresno City Council Ordinance No. 82-6, recorded
February 26, 1982, as Instrument No. 1.6366, Book 7866, Page 2, of Official Records, and all
subsequent amendments thereto, including without limitation those adopted by Ordinances Nos.
gAdon\agr\oat grant deed fonn.wpd
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94-118 and 98-46 (collectively the"Plan"); (f) the Master Disposition and Development
Agreement("DDA"), dated , 2005, between Grantor and Grantee for redeveloping the
Parcel, a memorandum of which is recorded as Document No. , Official Records of
Fresno County (a copy of the DDA may be viewed in the Office of the City Clerk at 2600 Fresno
Street, Fresno, California); (g) all matters affecting the Parcel which are discoverable by
inspection or survey; and (h) the following covenants:
I. Covenants. Grantee covenants, for itself, its officers, members, transferees, successors
and assigns, and all persons claiming under or through.any of them (collectively referred to as
"Grantee"), as follows:
1.1 Construction. Grantee shall construct on the Parcel the Developer Improvements
specified for this.Parcel in the Scope of Development (Exhibit E) of the DDA, together with all
related on-site and off-site improvements, structures, furnishings and landscaping, as described
in, and within the times set forth in, die DDA (the "Developer improvements").
After Grantee completes the Developer improvements as the DDA requires and Grantee
asks for recordable evidence of the completion, Grantor will furnish Grantee with a recordable
Release of Construction Covenants ("Release"), substantially in the form attached to the DDA as
Exhibit G. Recording the Release in the Official Records of Fresno County shall be conclusive
evidence that the Grantee has satisfied its obligations under the DDA and this Deed to complete
the Developer Improvements timely. The Release will not be evidence that Grantee has
complied with or satisfied any obligations it has to any holder of a mortgage, trust deed or
similar security instrument, or any insurer thereof, securing money lent to finance acquisition of
the Parcel, construction of the Developer improvements, or any part of either.
1.2 Indemnification. Grantee shall comply with all indemnification provisions of
the DDA that, expressly or by their nature, are to survive recording of this Deed and the
recording of the DDA or a memorandum of it.
1.3 Sale or Assignment. The DDA conditions any sale, transfer, conveyance,
assignment or lease of the Parcel. Until Grantor records the Release and the use and operations
covenant herein expires, Grantee shall not do the following without first obtaining Grantor's
consent: sell, transfer,convey, assign, refinance or lease any of the Parcel, the Developer
g:\don\agr\oat grant deed form.wpd -2-
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.Improvements or any other improvements on the Parcel. Grantor's consent shall be conditioned
on, among other things, the proposed transferee's written agreement to be bound by the
continuing indemnity provisions and other continuing covenants and obligations of the DDA and
by the continuing covenants in this Deed. The DDA lists certain transfers that will be permitted
transfers, and lists factors that Grantor will consider if asked to consent to any transfer.
The purpose of this covenant is to avoid land speculation. Grantee is acquiring the Parcel
and undertaking the Developer improvements, the.Project and other obligations under the DDA
for redevelopment purposes and not for land speculation. The redevelopment objectives of the
DDA and the qualifications of Grantee are of particular concern to the community and Grantor.
1.4 Use and Operations Covenant; .Recovery of Costs on Early Sale,Transfer,
Conveyance, or Encumbrance. After Grantee completes the Developer Improvements
specified for this Parcel in the Scope of Development(Exhibit E) of the DDA,Grantee shall do
the following: (a)use the:Parcel for operation and maintenance of the Developer Improvements
and reasonably related activities, as described in and consistent with the DDA, the Master Plan
CC&R's,building permits, final construction plans, and all other plans and pennits'approved for
the Developer Improvements on the Parcel, and for no other purpose without the prior written
approval of Grantor[Add for the Office Building No. I Parcel: and the Department of General
Services of the State of California), and (b)use and operate the Parcel and the Developer
improvements in conformity with the covenants, conditions, restrictions and obligations in the
DDA, the Master Plan CC&R's and all applicable laws including, without limitation, local laws
and ordinances, the Plan and the Law.
1.5 Maintenance. Grantee shall maintain or cause the transferees, lessees, tenants or
occupants to maintain all Developer Improvements and other improvements on the Parcel,
including facade improvements, in .first class condition and repair(and, as to landscaping, in a
healthy, weed-free condition), all according to the approved plans, the Master Plan CC&R's, and
all applicable laws, rules, ordinances, orders, and regulations of federal, state, county, municipal
and other governmental agencies and bodies having or claiming jurisdiction and their respective
departments, bureaus, and officials. Grantee shall keep the Parcel, the Developer Improvements
and all other improvements thereon free from graffiti and free from any accumulation of debris
gAdon\agAoat grant deed form.xvpd -3-
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or waste material, and will promptly replace dead and diseased plants and landscaping with
comparable materials.
Grantor will provide notice to Grantee of any breach of this maintenance covenant.
Grantor and Grantee will meet and confer promptly after the notice to detennine the corrective
actions and a schedule of performance. Grantee must cure the default within the agreed
schedule, or within (i) 10 days after Grantor's notice for any default involving landscaping,
graffiti, debris, waste material or general maintenance, or(ii) 30 days after Grantor's notice for
any default involving building improvements. if Grantee does not cure the default within those
times, Grantor, without obligation to do so, may enter the Parcel, cure the default and protect,
maintain, and preserve the Developer.lmprovements and other improvements and landscaping
thereon.
Grantor .may lien or assess the Parcel for Grantor's expenses in protecting, maintaining,
and preserving the improvements and aesthetics of the Development Parcel, including a 15
percent administrative charge, all in the manner used by the City of Fresno in the abatement of
public nuisances. The notice and opportunity to cure provided for in this paragraph 1.5 will
substitute for the noticing, hearing,and nuisance abatement order used by the City. Grantee .
shall promptly pay all such amounts to Grantor upon demand. Any such lien by Grantor will be
subordinate to any mortgage, trust deed or other security financing interest permitted under the
DDA,notwithstanding the date the lien or the mortgage,trust deed or security financing interest
is recorded.
1.6 Hazardous.Materials. Grantee shall not cause or permit the Parcel, the
Developer Improvements or any other improvements thereon to be used for the generation,
manufacture, storage, treatment, release, discharge, disposal, transportation or presence of any
Hazardous Materials.
Grantee shall comply and cause the Parcel, the Developer Improvements, all other
improvements thereon, and any contractors, lessees and tenants thereon or therein, to comply
with all Environmental Laws.
Grantee shall immediately notify Grantor of the following: (i) the discovery of any
Hazardous Materials on, in, under or about the Parcel; (ii) any knowledge by Grantee chat the
Parcel, the Developer Improvements or any other improvements thereon do not comply with any
gAdon\agr\oat grarit deed form.%vpd -4- .
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Environmental .Laws; (iii) any claims or actions pending or threatened against Grantee, the
Parcel, the Developer Improvements or any other improvements thereon by any governmental
entity or agency or any other person or entity relating to Hazardous Materials or pursuant to any
Environmental Laws (collectively "Hazardous Materials Claims"); and (iv) the discovery of any
occurrence or condition on any real property adjoining or near the Parcel that could cause the
Parcel or any other part of the Master Development Site to be designated as "border zone
property" under the provisions of California Health & Safety Code §§ 25220 et seq., or any
regulation adopted in accordance therewith.
In response to the presence of any Hazardous Materials on, in, under or about the Parcel,
the Developer Improvements or any other improvements thereon, Grantee shall immediately
take, at Grantee's sole expense, all remedial action required by any Environmental Laws or any
judgment; consent decree, settlement or compromise with respect to any Hazardous Materials
Claims.
On prior notice to Grantee, Grantor, its employees apd agents,without obligation to do
so, may enter the Parcel to investigate the existence, location, nature and magnitude of any past
or present release or threatened release of any Hazardous Materials into, onto, beneath or from
the Parcel.
1.7 Nondiscrimination. There shall be no discrimination against, or
segregation of, any persons, or group of persons, on account of race, color, creed, religion, sex,
marital status, national origin, age, physical or mental disability, or ancestry, in the sale, lease,
sublease, transfer, use, occupancy, tenure,or enjoyment of the Parcel, the Developer
Improvements or any other improvements thereon, nor shall Grantee or any person claiming
under or through Grantee, establish or permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use, or occupancy of tenants,
lessees,subtenants,sublessees or vendees of the Parcel, the Developer Improvements or any
other improvements thereon.
All deeds, leases or contracts for the sale, lease, sublease, transfer, use, occupancy, tenure
or enjoyment of the Parcel, the Developer Improvements or any other improvements thereon
shall first be submitted to Grantor for approval, Each such deed, lease or contract, including but
not limited to those entered between Grantee and any third party, must contain express
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nondiscrimination provisions in substantially the same forth as set forth in paragraph 1.7 above.
Grantee will submit each document first to Grantor for review to determine that its
nondiscrimination clauses comply with this paragraph and Section 33436 of the Law.
This subsection 1.7 shall run with the land in perpetuity, binding Grantee, Grantee's
officers and members, Grantee's successors, transferees and assigns, and any party contracting
or subcontracting with Grantee.
2. Effect and Priority..of Covenants. The covenants in this Deed, without regard to
technical classification or designation, legal or otherwise, except as specifically provided, are
covenants running with the )and. The covenant in subsection 1.1 shall terminate when the
Release of Constriction Covenants for the Parcel is recorded in the Official Records of Fresno
County. The covenants in subsections 1.2, 1.3, 1.4, 1.5 and 1.6 shall terminate when the Plan
tenninates. The covenant in subsection 1.7 shall run in perpetuity. The covenants benefit, and
are enforceable by, Grantor, its successor and assigns, the City of.Fresno, its successors and
assigns, and persons owning or occupying-property within the Project. The covenants are
enforceable against Grantee, its officers and members, and its successors, transferees and
assigns.
No violation or breach of the covenants, conditions, and restrictions in this Deed shall
impair any mortgage, trust deed or other security financing interest permitted under the DDA.
However, any successor, transferee or assignee of Grantee shall be bound by the continuing
covenants, conditions and restrictions, whether the successor, transferee or assignee acquires title
by foreclosure, deed in lieu of foreclosure, trustee's sale or otherwise.
3. Modification of Covenants. Only Grantor and its successors, and Grantee and its
successors, transferees or assigns holding fee title, may modify or terminate any covenant in this
Deed. For purposes of this Section 3,Grantee's successors,transferees and assigns do not
include a tenant, lessee, easement holder, licensee, mortgagee,trustee, beneficiary under trust
deed, or any other person holding less than a fee interest in the Site.
4. Grantor's Reversionary Rights (PoNver of Termination). Grantor conditions this
conveyance of the Parcel on Grantee's timely commencing and completing the Developer
Improvements. Therefore, until Grantor records the Release of Construction Covenants
gAdon\agr\oat grant deed form.wpd -6
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evidencing Grantee's satisfactory completion of the Developer Improvements, Grantor shall
have the power to terminate all right, title, and interest granted hereunder to Grantee and
Grantee's heirs, successors and assigns in the manner the law provides for exercising the power
of termination. Grantee will cooperate with Grantor in its exercise of the power. Grantor may
exercise its power, before it records the Release of Construction Covenants, upon the occurrence
of any of the specific Defaults set forth in subsection 20.3 of the DDA relating to Grantee's
timely commencement, completion or abandonment of the Developer Improvements or
Grantee's transferor assignment without Grantor's prior consent.
Grantor may institute any action or proceeding to exercise its rights under this section
including, without limitation, the right to execute and record in the Official Records of Fresno
County a written declaration that it is exercising its power to terminate all right, title and interest.
of Grantee, its successors in interest, transferees and assigns in the Parcel and to revest title in
Granton. Grantor's delay in instituting or prosecuting any action or proceeding, or in otherwise
asserting its rights under this section, shall not operate as a waiver. if Grantor waives any
specific Default by Grantee described in this section, the waiver shall not be a continuing waiver
or a waiver of any other default. On the revesting of title in Grantor, Grantor shall follow the
procedures set forth in the DDA regarding reuse or resale of the Parcel and the disbursement of
any sale proceeds.
1 \ \ \. [Repirainder of page left blank intentionally; Deed continued on nest page]
1 .\ \ \
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67/05/2005 14:62 365-963-9758 Pa6EC 02162
5. DDA controlling. If a conflict exists or arises bet%veen the provisions of this Deed and
the DDA., the DAA shall control.
Capitalized terms used in this Deed and not otherwise defined herein shall have the
mewings given them in the DDA.
IN WTTNESS WHEREOF the parties hereto have signed this Grant Deed the
6th day of�July ' 20 05
Gramor and Grantee to sign before a notary public, and notary to attach acknowledgment
GRANTEE: GRANTOR:
OLD ARMENIAN TOWN,LLC, REDEVELOPMENT AGENCY OF
a California Limit9d Liability Company THE CITY OF FRESNO
By U��ABr•
:name Richard V. Gunner lame
Executive Director
Title Member
Dated July 6, 2005 Dated
APPROVED AS TO FORM. .-ATTEST:
HILDA CANTI NIONTOY REBECCA E.KLISCH
Ex Officio Attorney Ex Officio Clerk
By By
Assistant/Deputy Deputy
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT No.5907
State of California
County of Fresno
On July 6, 2005 before me, Debra Ann White, Notary Public ,
DATE NAME,TITLE OF OFFICER•E.G.,'JANE DOE,NOTARY PUBLIC-
personally appeared Richard V Gunner
NAME(S)OF SIGNERS)
Ei)Icpersonally known to me - OR - ❑ proved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) is/are
subscribed to the within instrument and ac=
knowledged to me that he/she/they executed
the same - in his/her/their authorized
capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s),
or the entity upon behalf of which the
person(s) acted, executed-the instrument.
DEBRA ANN WHITE WITNESS my hand and official seal.
e .. COMM.#1473989
U) = `�' NOTARY FRESNO
COUNTY RttIA y
ui •••.,•;; FRESNO COUNT'f �" /(�►�"7L/}1') L� -
. my Comm.W.March 2,2008
SIGNAfttWOF NOTARY
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
❑ INDIVIDUAL
❑ CORPORATE OFFICER
TITLE OR TYPE OF DOCUMENT
nTl�(s)
❑ PARTNER(S) ❑ LIMITED
❑ GENERAL
❑ ATTORNEY-IN-FACT NUMBER OF PAGES
❑ TRUSTEE(S)
❑ GUARDIAN/CONSERVATOR
❑ OTHER:
DATE OF DOCUMENT
SIGNER IS REPRESENTING:
NAME OF PERSON(S)OR ENTITY(IES)
SIGNER(S)OTHER THAN NAMED ABOVE
01993 NATIONAL NOTARY ASSOCIATION-8236 Remmet Ave.,P.O.Box 7184•Canoga Park,CA 91309• 8a
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LEGAL .DESCRIPTION
Real property in the City of Fresno, Fresno County, California, described as follows:
[To Be Provided for Each Development Parcel.]
(Assessor's Parcel No. )
Exhibit A
g:\don\agr\oat grant deed fomimpd
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FORM OF RELEASE OF CONSTRUCTION COVENANTS
See attached.
Exhibit G
gAdon\agr\oat mda#9(rev 6-05).wpd
Description Fresno,CA Document-Year.DoclD 2005.171775 Page: 111 of 114
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RECORDED AT THE REQUEST OF
AND WHEN RECORDED RETURN TO:
Fresno Redevelopment Agency
2600 Fresno Street, Room 2031
Fresno, California 93721-3602
Attention: City Attomey
(SPACE ABOVE THIS LINE FOR RECORDER'S USE)
This Release of Construction Covenants is recorded at the request and for the benefit of
the Fresno Redevelopment Agency and is exempt from the payment of a recording fee pursuant to.
Government Code Section 6103.
FRESNO REDEVELOPMENT AGENCY
By:
Its:
Dated:
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Release of Construction Covenants
Recitals:
A. By a Master Disposition and Development Agreement (the "Agreement") dated
,2005,between the FRESNO REDEVELOPMENT AGENCY,
a public body,corporate and politic(the"Agency"),and OLD ARMENIAN TOWN,
LLC, a California limited liability company(the"Developer"),the Developer agreed
to redevelop the real property legally described in Exhibit A hereto(the"Development
Parcel")according to the terms and conditions of the Agreement.
B. The Agreement or a memorandum of it was recorded on , 2005, as
Instrument No. in the Official Records of Fresno County.
C. Under the terms of the Agreement,after the Developer completes all construction work
on the Development Parcel,the Developer may ask the Agency to record a Release of
Construction Covenants on the Development Parcel.
D. The Developer has asked the Agency to furnish the Developer with a recordable
Release of Construction Covenants,
E. The Agency's issuance of this Release is conclusive evidence that the Developer has
complied with the construction terms of the Agreement that pertain to the particular
Development Parcel.
NOW THEREFORE:
1. The Agency certifies that the Developer has completed the redevelopment construction
on the Development Parcel described in Exhibit A, and has done so in'full compliance with the
Agreement.
2. This Release of Construction Covenants is not evidence of the Developer's compliance
with,or satisfaction of,any obligation to any mortgage holder or any mortgage insurer securing money
lent to finance construction work on the Development Parcel, or any part of it. This Release of
Construction Covenants is not evidence of the Developer's compliance with, or satisfaction of, its
construction obligations under the Agreement as to any other Development Parcel, or any other
provision of the Agreement. Nothing contained hereia modifies any provision of the Agreement.
IN WITNESS WHEREOF, Agency has executed this Certificate as of ,
200 .
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FRESNO REDEVELOPMENT AGENCY
By:
Executive Director
OLD ARMENIAN TOWN,LLC,a California limited liability company,the owner of record
of the Development Parcel described in Exhibit A, now consents to recording this Release of
Construction Covenants against the Development Parcel.
Dated: OLD ARMENIAN TOWN,LLC,
a Califomia limited liability company
a,r Managing Member
THE ABOVE PARTIES MUST SIGN THIS INSTRUMENT BEFORE A NOTARY PUBLIC.
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City of FILE C
r�lC—moi���
Planning & Development Department
2600 Fresno Street • Third Floor N.ick P. Yovino
Fresno, California 93721-3604 Director
(559) 621-8277 FAX(559) 488-1020
RECEIVED I .
May 26, 2005 JUL ,9 2005 Please reply to:
2 Will Tack ett
CITY OF FRESNO (559)621-8063
BUILDING & SAFETY SERVICES
Lars Anderson &Associates, Inc.
4630 West Jacquelyn Avenue, Ste., 119
Fresno, CA 93722
SUBJECT: NOTICE OF APPROVAL OF VESTING TENTATIVE PARCEL MAP NO. 2004-21
DATED OCTOBER 22, 2004 PROPOSING A THREE LOT PARCEL MAP FOR
PROPERTY LOCATED ON THE EAST SIDE OF VENTURA STREET, BETWEEN N
AND O STREETS.
The City of Fresno Planning Division has completed its review of the subject parcel map dated
October 22, 2004. Pursuant to Section 12-1205 of the Fresno Municipal Code, this letter is written to
advise you that the Conditions of Approval dated May 26, 2005, are as noted on the attached
document.
If you have any questions regarding the conditions please notify me at the number indicated above, no
later than June 06, 2005, to request a review of the conditions. Otherwise, the stipulated conditions of
approval are in effect as of said date. No further notice will be sent.
Appeal: The divider or any aggrieved person may file an appeal regarding to conditions of approval
within fifteen (10) days from the date of approval.
To protest the Director's decision regarding the conditions of approval, you must appeal by filing a
written appeal with the Director of the Development Department. Appeal must include the appellant's
interest in/or relationship to the subject property, the decision or action appealed, and specific reasons
why the appellant believes the decision or action appealed from should not be upheld.
Appeals must be submitted to the Director of the Planning and Development Department prior to 5
p.m. on June 06, 2005.
EXPIRATION: The approval or conditional approval of this tentative Parcel Map expires two years
from the date of approval. The expiration shall terminate all proceedings and a final Parcel Map may
not be filed without first processing a new Tentative Parcel Map.
Modification of a Tentative Parcel Map after approval or conditional approval does not extend the two
year time limit.
EXTENSION: The divider may request an extension of the tentative map expiration date by filing a
written application together with the fee set forth in the Master Fee Schedule at the time of the request
with the Director of the Development Department at least thirty days before the expiration date of the
map. The applicant must state the reasons for the requesting the extension. New conditions may be
imposed if an extension is granted.
An extension may not exceed an aggregate of five years.
Y403 Ull
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Lars Anderson &Associates, Inc.
TPM-2004-21
r> May 26, 2005
'.. ` Page 2
If you wish additional information, please contact the City of Fresno, Planning and Development
Department, Planning Division, 2600 Fresno Street, Fresno, California 93721-3604; phone, (559)621-
8277. Your inquiry should be directed to either Louis Rocha (engineering or improvements issues) or
Will Tackett(planning or zoning issues).
Sincerely,
PLANNIN DIVISION
Will ckett
Planner
Enclosures: Vesting Tentative Parcel Map No. 2004-21 dated October 22, 2004
Conditions of Approval dated May 26, 2005
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CITY OF FRESNO
PLANNING AND DEVELOPMENT DEPARTMENT
CONDITIONS OF APPROVAL
May 26, 2005
VESTING TENTATIVE PARCEL MAP NO. 2004-21
East Side of Ventura Street, Between "N" and "0" Streets.
NOTICE TO PROJECT APPLICANT
All tentative maps are subject to the applicable provisions of the State Subdivision Map Act, Fresno
Municipal Code, City policies, and City of Fresno Standard Specifications. The following specific
conditions are applicable to this vesting tentative map.
In accordance with the provisions of Government Code §66020(d)(1), the imposition of fees,
dedications, reservations or exactions for this project are subject to protest by the project applicant at
the time of approval or conditional approval of the development or within 90 days after the date of the
imposition of the fees, dedications, reservations or exactions imposed on the development project.
Upon conditional approval of Vesting Tentative Parcel Map No. 2004-21,dated October 22,2004,the
subdivider may prepare a Final Parcel Map in accordance with the approved tentative map. Note that
a final parcel map may not be filed until the appeal period has expired. Should an appeal be filed
pursuant to Section 12-1207 of the FMC, the application will be scheduled to be heard before the City
of Fresno Planning Commission. The appellant may withdraw their appeal pursuant to Section 12-
1207.2 of the FMC.
Concurrent with the filing of a final map and when the provisions of Section 66436 of the Subdivision
Map Act apply, the subdivider is responsible to send, by certified mail, a sketch of the proposed final
map, together with a copy of SMA Section 66436(a)(3)(A), to any public entity or public utility which
has previously acquired a right-of-way easement.
LEGAL STATUS OF SITE TO BE SUBDIVIDED
1. The parcel map site was legally created from all of Block 122 and the portion of Block 183
lying northwest of the Highway 41 right-of-way, in the Town (now City) of Fresno, County of
Fresno,State of California.Together with that portion of vacated"N-O"Alley between Ventura
and Freeway 41, Santa Clara Street between "N" and "0" Streets, as ordered vacated by
Resolution No. 2004-39 of the Council of the City of Fresno, ordering the vacation, recorded
February 13, 2004 as Instrument No. 20040034757, of Official Records. Together with the
State of California owned property, conveyed on March 9, 2004, shown on this Map as Parcel
«A„
Conditions of Approval --
Tentative Parcel Map No. 2004-21
May 26,2005
Page 2
PLAN CONSISTENCY
2. The 2025 Fresno General Plan and the Central Area Community Plan designate the parcel
map for development with commercial mixed use level 2 type land uses. The Central Area
Land Use Association Matrix identifies the C-M and M-1 zoned districts as consistent with
commercial mixed use level 2 type land use.
ZONING
3. Comply with provision of the State of California Government Code Sections 66410-66499.58
.A (the Subdivision Map Act) and the City of Fresno Municipal Code Chapter 12, Article 10
(Subdivision of Real Property).
4. Proposed parcels are consistent with the C-M/CCO (Commercial and Light
Manufacturing/Civic Center Area Modifying) zone district and M-1/CCO (Light
Manufacturing/Civic Center Area Modifying)zone district for the parcel map site in terms of lot
width, depth, and lot area and provide access to a public rights-of-way.
GENERAL CONDITIONS
5. All off-site and public improvements shall be constructed in accordance with the Public Works
Department Standards, Specifications and Policies. Engineered construction plans and
estimates for all or part of the required work shall be required prior to the issuance of Street
Work Permits unless otherwise determined by the City Engineer. The cost for such plan
preparation, review and construction inspection shall be at the subdivider's expense.
6. Any existing utilities, including but not limited to,street lights,traffic signals,fire hydrants, poles
(power, telephone, cable, etc), fire hydrants which must be relocated or removed in
conjunction with the construction of these off-site improvement requirements, shall be the
responsibility and at the expense of the subdivider.
- -7: All existing overhead utilities, including but not limited to, electrical systems, communication
systems and street lighting systems shall be placed underground in accordance with the
provisions of Section 12-1011 of the Fresno Municipal Code and the policies of the Public
Works Department.
8. When streettsafety lighting installations are required, street lighting plans shall be submitted
for review and approval by the Traffic Engineer prior to the issuance of permits for the work.
Services to street lighting installations shall be separated from the electrical service(s)serving
the development. The type, location and service for street lighting installations shall be as
determined by the Traffic Engineer. Street lighting installations shall be dedicated to the City
upon completion and acceptance of the installations.
9. Sidewalks(including wheelchair ramp landings when applicable)and driveway approaches,for
undeveloped parcels of this parcel map, shall be required as a condition of site development.
r
' Conditions of Approval
Tentative Parcel Map No. 2004-21
May 26, 2005
Page 3 -
10. Whenever covenants or agreements are required, they shall be prepared by the city upon
- receipt of the fee in accordance with the adopted Master Fee Schedule. All covenants and
agreements must be approved by the City Attomey's Office and shall be recorded with the final
parcel map.
11. Telephone, cable, and other public utilities which propose above-ground facilities (such as
cabinets) determined by the Planning and Development Director to be oversized shall be
located in an additional easement area outside of the required landscape strip.
12. All work and engineered plans for public improvements shall conform to the 2002 Edition of
the City of Fresno Standard Specifications and Drawings (City Council Resolution No. 70-36
and Resolution Nos. 84-361) and any amendments thereto, hereinafter referred to as the
"Public Works Standards."
13. The subdivider shall dedicate and construct public easements to facilitate the construction of
curbs, gutters, sidewalks with street tree wells and irrigation systems (when applicable),
permanent pavement, street/safety lighting, bus bays, right turn lanes, bike lanes, bike paths,
multi-purpose trail, wheelchair ramps and public utilities in accordance with City plans,
ordinances, resolutions and policies, and the Standard Specifications of the Public Works
Department within the limits of the parcel map.
14. Existing improvements that are not to the planned alignment shall be removed and required
improvements installed to the new street alignment and grade. Existing improvements to
remain in place shall be repaired if determined to be damaged and/or off grade by the City
Engineer. Existing driveway approaches not identified for current or future utilization shall be
removed and sidewalk(when applicable), curb and gutter shall be installed to match existing
or proposed street line and grade as determined by the City Engineer.
15. A minimum four foot wide clear path of travel is required along the public sidewalk on all
frontages of the property as required by Title 24 of the California Administration Code as
determined by the City Engineer. An on-site pedestrian easement and construction of a path
may be required if Title 24 provisions cannot be met-withinthe public rights-of-way. All such
public easements shall be identified and dedicated with the processing and recordation of the
Final Parcel Map and/or at the time of Special Permit review for the proposed development of
the parcel(s).
16. All required signing and striping shall be done and paid for by the developer/owner. The
signing and striping plans shall be done per the current CalTrans standards and shall be
submitted as a part of the street construction plans for this tentative map to the Public Works
Department for review and approval.
17. The subdivider may either construct the required off-site improvements,when required,prior to
the approval of the final parcel map; or enter into an agreement with the City of Fresno
providing for the construction of the required improvements and sufficient security prior to the
approval of the final parcel map.
Conditions of Approval
Tentative Parcel Map No. 2004-21
May 26, 2005
Page 4
SPECIFIC CONDITIONS
PUBLIC WORKS DEPARTMENT
18. There are no street tree or irrigation requirements at this time.
STREETS AND RIGHTS-OF-WAY
Ventura Street (Collector Street):
19. Concrete curb, gutter, and 10 & 14 foot sidewalk patterns currently exist in accordance with
Public Works Standard P-5.
20. Permanent asphalt concrete paving exists in accordance with Public Works Standard P-50.
21. Street lighting system within the limits of this map exists in accordance with Public Works
Standard E-1.
O Street(Collector Street):
22. Concrete curb, gutter, and 10 foot sidewalk pattern currently exist in accordance with Public
Works Standard P-5.
23. Permanent asphalt concrete paving exists in accordance with Public Works Standard P-50.
24. Street lighting system within the limits of this map exists in accordance with Public Works
Standard E-1.
N Street
_ 25. Concrete curb, gutter, and 10 foot sidewalk pattern currently exist in accordance with Public
Works Standard P-5.
26. Permanent asphalt concrete paving exists in accordance with Public Works Standard P-50.
27. Street lighting system within the limits of this map exists in accordance with Public Works
Standard E-1.
Sanitary Sewer Service
28. The nearest sanitary sewer mains to serve the project are a 16-inch main located in Ventura
Street and an eight inch main located in Santa Clara Avenue. The following conditions shall
be required to provide sanitary sewer service to the proposed project.
29. Abandon six inch sanitary sewer main in alley between Ventura and Santa Clara Streets&"N"
-"' and "O"Streets.
Conditions of Approval -
Tentative Parcel Map No. 2004-21
May 26, 2005
Page 5
30. Separate sewer house branches shall be provided for each lot created.
31. Public Sewer facilities shall be constructed in accordance with the Department of Public
Works standards, specifications, and policies. .
32. Engineered improvement plans prepared by a Registered Civil Engineer shall be submitted for
Department of Public Utilities review and approvals for proposed additions to the City Sewer
System.
WATER SERVICE
A 12-inch water main is located in Santa Clara Street and an eight inch water main is located in
Ventura Street. The following conditions are required to provide water service to the project.
R M 6iv4o
33. Construct aeet
ch water main (including installation of City fire hydrants) in "O" Street
south to "P"
P344. Abandon eight inch water main in alley between Ventura and Santa Clara Streets & "N"and
"O" Streets.
35. Installation(s)of public fire hydrant(s) is/are required in accordance with City Standards.
36. Separate water services with meter boxes shall be provided to each lot created.
37. Water Connection Charges are due and shall be paid for the Project.
38. Engineered improvement plans prepared by a. Registered Civil Engineer are required for
proposed additions to the City Water System.
39. Public water facilities shall be constructed in accordance with Public Works Department
standards, specifications, and policies.
FLOOD CONTROL AND DRAINAGE
40. The subdivider shall be required to pay any applicable storm drainage fees to comply with
�✓ Fresno Municipal Code Chapter 13, Article 13.
41. The subdivider shall be required to comply with the specific requirements imposed by the
Fresno Metropolitan Flood Control District(FMFCD)for the subdivision or any amendments or
modifications to those requirements which may be granted by the FMFCD Board of Directors,
pursuant to Section 13-1307 of the Fresno Municipal Code. These requirements are identified
in the District's letter to the Planning and Development Department dated November 09,2004.
FRESNO IRRIGATION DISTRICT
42. FID does not own, operate, or maintain any facilities located on the applicant's property.
i. .. � � ...v ....
C ,
Conditions of Approval
Tentative Parcel Map No. 2004-21
May 26, 2005
Page 6
43. FID expects no adverse impacts from the approval of this project.
FRESNO UNIFIED SCHOOL DISTRICT
44. Prior to issuance of a building permit, school fees must be paid. Contact Fresno Unified
School District for their requirements.
DEPARTMENT OF TRANSPORTATION (CALTRANS)
45. Consider the attached Caltrans memorandum dated October 28, 2004.
REDEVELOPMENT AGENCY(RDA)
46. City of Fresno Redevelopment Agency, pursuant to the Disposition and Development
Agreement with Old Armenian Town, LLC, will construct or cause to construct off-site
improvements required and respective to the proposed project.
AMERICAN TELEPHONE AND TELEGRAPH COMPANY(AT&T)
47. AT&T has determined that there is no need for the installation of any new facilities. Existing.
facilities are located along N Street.
DEVELOPMENT FEES AND CHARGES
This project is subject to the following development fees and charges:
FRESNO METROPOLITAN FLOOD CONTROL DISTRICTFEE / RATE
a. Fresno Metropolitan Flood Control District Fee $6,475.00
SEWER CONNECTION CHARGES FEE RATE
b. Lateral Sewer Charge $0.10/sq. ft. (to 100' depth)
c. Oversize Charge $0.05/sq. ft. (to 100' depth)
d. Trunk Sewer Charge S.T.E.P
Service Area: Herndon
e. Wastewater Facilities Charge S.T.E.P
'Upon occupancy of the project,the subdivider shall pay the appropriate sewer facility charge pursuant to the
Simple Tiered Equity Program(STEP)as determined by the Department of Public Utilities,Wastewater Division,
Environmental Services Section (559-621-5153).
f. Copper Avenue Sewer Lift Station Charge n/a
g. Fowler Trunk Sewer Interim Fee Surety n/a
Conditions of Approval
Tentative Parcel Map No. 2004-21
May 26, 2005
Page 7
h. House Branch Sewer Charge n/a
i. Millbrook Overlay Sewer n/a
WATER CONNECTION CHARGES FEE RATE
j. Service Connection Charge Fee .based on service(s) and
meter(s) sizes specified by
owner; fee for service(s) and
Meter(s) established by the
Master Fee Schedule.
k. Frontage Charge $6.50/lineal foot
I. Transmission Grid Main Charge $804/net acre
m. Transmission Grid Main Bond Debt
Service Charge $304/net acre
n. UGM Water Supply Fee n/a
Service Area:
o. Well Head Treatment Fee n/a
Service Area:
p. Recharge Fee n/a
Service Area:
q. 1994 Bond Debt Service n/a
Service Area:
DEVELOPMENT IMPACT FEE
r. Northeast Fresno Policing Area n/a
s. Traffic Signal Charge
Residential Medium, Medium-low, Low Density $ 478/living unit
Residential Medium-high Density $ 382/living unit
Residential High Density $ 334/living unit
Industrial $0.34/sq. ft.
Public Facility $ 1.72/sq. ft.
Commercial $ 2.06/sq. ft.
Commercial Fast Food $ 23.71/sq. ft.
Commercial Mini-Mart w/gas $ 40.40/sq. ft.
Conditions of Approval
Tentative Parcel Map No. 2004-21 -
May 26, 2005
Page 8
URBAN GROWTH MANAGEMENT FEE RATE/CHARGE*
t. UGM Fire Station Capital Fee n/a
Service Area:
u. UGM Park Fee n/a
Service Area:
v. Major Street Charge n/a
Service Area:
w. Major Street Bridge Charge n/a
Service Area:.
x. Traffic Signal Charge n/a
y. UGM Grade Separation Fee n/a
z. Trunk Sewer Charge n/a
Service Area:
aa. *Street Acquisition/Construction Charge n/a
City of
PLANNING AND DEVELOPMENT DEPARTMENT
DATE: May 26, 2005
TO: NICK P. YOVINO, Director
Planning and Development Department ))
THROUGH: DARRELL UNRUH, Planning Manager go
Planning Division
FROM: WILL TACKETT, Planner I
Planning Division
SUBJECT: REQUIRED FINDINGS AND APPROVAL OF VESTING TENTATIVE PARCEL
MAP NO. 2004-21, DATED OCTOBER 22,2004, LOCATED ON THE SOUTHEAST
SIDE OF VENTURA STREET, BETWEEN N AND O STREETS.
BACKGROUND
Vesting Tentative Parcel Map No. 2004-21, dated October 22, 2004, filed by Lalkumar
Goonawardena for the City of Fresno Redevelopment Agency and the State of California, proposes
to create three (3) parcels for approximately 3.62 acres of property zoned C-M/CCO (Commercial
and Light Manufacturing/Civic Center Area Modifying) zone district and M-1/CCO (Light
Manufacturing/Civic Center Area Modifying) zone district. The parcel map site is located on the
southeast side of Ventura Street between N and O Streets. The three lot parcel map will facilitate
the future development of a State court house. Approval of a tentative parcel map is subject to the
Planning and Development Department Director finding that the map is consistent with the officially
adopted plans and polices of the City of Fresno. The project site is designated in the 2025 Fresno
General Plan and Central Area Community Plan for commercial mixed use level 2 type land uses.
Pursuant to Exhibit No. 8 of the Central Area Community Plan, the C-M and M-1 zone districts are
consistent with commercial mixed use level 2 type land uses. Staff has reviewed the proposed
design and improvement of Vesting Tentative Parcel Map No. 2004-21 and has determined that the
map is consistent with adopted policies as described below.
REQUIRED FINDINGS
The initial study prepared for Environmental Assessment No. TPM-2004-21 considered potential
environmental impacts associated with the tentative parcel map. Environmental Assessment No.
TPM-2004-21, resulting in a Class 15 Categorical Exemption(Section 15315/Minor Land Divisions)
was filed on May 26, 2005, with the City Clerk. Staff determined that a Class 15 Categorical
Exemption was appropriate given that the proposed project consists of the division of property in an
urbanized area zoned for commercial and industrial use into three parcels and is in conformance
with the General Plan and zoning, no variances or exceptions are required,all services and access
to the proposed parcels to local standards are available, the parcels were not involved in a division
of a larger parcel within the previous two years, and the parcels do not have an average slope
greater than,20 percent.
Vesting Tentative Parcel Map No. 2004-21
May 26, 2005
Page 2
STATE SUBDIVISION MAP ACT
The Subdivision Map Act (California Government Code Section 66410 et. seq.) requires that a
proposed parcel map not be approved unless the map,together with its design and improvement, is
found to be consistent with the General Plan and any applicable specific plan(Finding No. 1 below).
State law further provides that the proposed parcel map be denied approval if any one of the Finding
Nos. 2-5, below, is made in the negative.
1. The proposed parcel map, together with its design and improvements is consistent with the
City's 2025 General Plan and Central Area Community Plan, which designate the site for
commercial mixed use level 2 type land uses.
2. The site is physically suitable for the proposed type and density of development because of
the flat terrain of the site and adequate access and drainage on and off the site.
3. The proposed parcel map design and improvements are not likely to cause substantial and
considerable damage to the natural environment, including fish, wildlife or their habitat,
because of the urbanized nature of the area in which the site is located.
4. The proposed parcel map design and improvements are not likely to cause serious public
health and safety problems, because the conditions of approval have shown and will insure
that the subdivision conforms to City health and safety standards.
5. The proposed parcel map design will not conflict with public easements within or through the
site because conditions of approval will assure noninterference with any existing or
proposed public easements.
Staff, based on its own analysis, has determined that the parcel map, subject to the recommended
conditions of approval, otherwise complies with the design and property development standards of
the Zoning Ordinance and local Parcel Map Ordinance and recommends the approval of the parcel
map.
DIRECTOR DETERMINATION
1. Based upon the above analysis, the Planning and Development Director finds that Vesting
Tentative Parcel Map No. 2004-21 dated October 22, 2004, is consistent with the applicable
plans and policies of the City of Fresno.
2. The Planning and Development Director hereby grants approval of Vesting Tentative Parcel
Map No. 2004-21 dated October 22, 2004, subject to the conditions of approval dated May
26, 2005, and to become effective on June , 2005.
Ni Yovino, Director Date
• CITY OF FRESNO
CATEGORICAL EXEMPTION
ENVIRONMENTAL ASSESSMENT NO. TPM-2004-21
THE PROJECT DESCRIBED HEREIN IS DETERMINED TO BE CATEGORICALLY
EXEMPT FROM THE PREPARATION OF ENVIRONMENTAL DOCUMENTS
PURSUANT TO ARTICLE 19 OF THE STATE CEQA GUIDELINES.
APPLICANT: The Redevelopment Agency of the City of Fresno
2344 Tulare Street, Ste. 200
Fresno, California 93721
PROJECT LOCATION: The southeast side of Ventura Street between N and O Streets.
PROJECT DESCRIPTION: Vesting Tentative Parcel Map Application No. 2004-21 is a request to
subdivide 3.62 acres of property into three parcels. The proposed
subdivision is consistent with the land use and circulation elements of
both the 2025 General Plan and the Central Area Community Plan.
This project is exempt under Section 15315/Class 15 of the California Environmental Quality Act
(CEQA) Guidelines.
EXPLANATION: Section 15315/Class 15 exemption states that projects consisting of the
division of property in urbanized areas zoned for residential, commercial, or
industrial use into four or fewer parcels when the division is in conformance
with the General Plan and zoning, no variances or exceptions are required,
all services and access to the proposed parcels to local standards are
available,the property was not involved in a division of a larger parcel within
the previous 2 years, and the property does not have an average slope
greater than 20 percent, are exempt from CEQA requirements.
Date: May 26, 2005
Prepared By: Will Tackett, Planner I
Submitted By: a:g (��,ktel,
Darrell Unruh
Planning Manager
r— City of Fresno
C) Planning and Development Department
_ (559)621-8277
W w
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'WiII Tackett Fwd Re. vtpm 2004 21
Page 1
From: Alan Kawakami
To: Will Tackett
Date: 10/25/04 9:57AM
Subject: Fwd: Re: vtpm 2004--21
fyi
>>> Jose Benavides 10/25/2004 9:54:23 AM >>>
Alan,
This easement being retained is only for signal equipment maintenance and therefore do not need a
regular street easement but rather a signal equipment maintenance purposes only.
Thanks,
>>>Alan Kawakami 10/22/2004 4:47:02 PM >>>
vtpm 2004-21 design proposes to retain a portion of santa clara and create a stub street .. if this is to
facilitate traffic signal .. easement should be limited for traffic signal equipment purposes ... otherwise,
santa clara will exist as a public stub street transitioning onto private property.
Jose Luis Benavides, P.E.
Public Works Department
Traffic Engineering Manager
2600 Fresno Street Rm. 4064
Fresno, CA 93721-3616
Phone (559) 621-8811
Fax (559)457-1280
1
'Will Tackett- Re Parcel Map No 200' Page 1
From: Arthur Morgan
To: Paul.Bernal@ci.fresno.ca.us
Date: 2/1/05 9:50AM
Subject: Re: Parcel Map No. 2004-21
Paul:
Parcel Map No. 2004-21 should be the map for the 5th DCA project/Old Armenian Town Project.
Pursuant to the Agreement with the State of California and the Disposition and Development Agreement
with Old Armenian Town, LLC, the south side of Ventura between N and O streets (and along O street to
Freeway 41), the Agency would construct or cause to construct those off-site improvments. The City's
Public Works Department and Agency staff are presently close to finalizing engineering drawings for this
section of the off-site improvements. The Agency's engineer, Lal, has been working closely with me in
making sure we have the improvements installed in accordance with the two Agreements.
If you have any other question, please do not hesitate to either e-mail me or call at 559-289-5858.
Thanks,
Arthur W. Morgan
Fresno Redevelopment Agency
2344 Tulare Street, Suite 200
Fresno, CA 93721
(559) 498-5198 * FAX (559)498-1870
e-mail: Arthur.Morgan@fresno.gov
>>> Paul Bernal 02/01/05 8:28 AM >>>
Art,
Will Tacket is currently working on Parcel Map No. 2004-21 which proposes to subdivide property located
on the south side of Ventura between N and O Streets. In speaking with Public Works,Transportation
Division, Plannnig staff was notified that the Redevelopment Agency had agreed to handle all offsite
improvements. Can you please provide us with RDA's comments with regards to offsite improvements.
Thanks
CC: Will.Tackett@ci.fresno.ca.us; Richard Yee; Lalkumar Goonawardena; Marlene
Murphey; Terry Cox
City of
DATE: November 24, 2004
TO: Will Tackett, Planner I
Development Department, Planning Division, Current Planning
THROUGH: Jose L. Benavides, Traffic Engineering Manager <:SJ�
Public Works Department, Engineering Division
FROM: Gregory A. Jenness, Senior Engineering Technician -
Public Works Department, Engineering Division
SUBJECT: Tentative Parcel Map 2004-21, Between "O" Street, "N" Street, Ventura Avenue &
Freeway "41".
PUBLIC IMPROVEMENT REQUIREMENTS
The Public Works, Transportation Planning Section, has completed its review of Tentative Parcel Map
2004-21, which was submitted by Lars Andersen & Associates, Inc., for the Redevelopment agency of
the City of Fresno &the State of California, the property owners. The following requirements are to be
placed on this Tentative Parcel Map as a condition of approval by the Public Works Department.
General Conditions
• All survey monuments within the area of construction shall be preserved or reset by a person
licensed to practice Land Surveying in the State of California.
• Repair or replace all existing damaged and /or off-grade offsite concrete improvements in
accordance with the Standard Specifications and Standard Drawings of the City of Fresno,
Public Works Department.
• Submittal of engineered construction plans to Public Works for approval must be made prior to
final map. All required signing and striping shall be installed and paid for by the developer/
owner. The signing and striping plans shall comply with the current Caltrans standards and be
submitted as a part of the street improvement plans.
• Underground all existing offsite overhead utilities with the limits of this map in accordance with
Fresno Municipal Code Section 12-1011, 8-801 and Resolution No. 78-522/88-229.
Maior Streets:
Ventura Avenue (Collector):
1. Concrete curb, gutter, sidewalk built to a 10 & 14-foot pattern, needed street lights and needed
A. C. permanent pavement, in accordance with Public Works Standard, exist. Additional offsite
concrete improvements will be required at the time of future site plan review.
- 1 —
LATraffic Planning Section\Parcel Maps\TentPM200421.doc
O Street Avenue(Collector):
1. Concrete curb, gutter, sidewalk built to a 10-foot.pattern, needed street lights and needed A. C.
permanent pavement, in accordance with Public Works Standard exist. Additional offsite
concrete improvements may be required at the time of future site plan review.
Local Streets:
N Street:
1. Concrete curb, gutter, sidewalk built to a 10-foot pattern, needed street lights and needed A. C.
permanent pavement, in accordance with Public Works Standard exist. Additional offsite
concrete improvements will be required at the time of future site plan review.
UGM:
This Parcel Map is not within a U.G.M. Major Street Zone.
v,o ze
- 2 —
L:\Traffic Planning Section\Parcel Maps\TentPM200421.doc
a
W ill Tackett-Tentative Parcel Map 20C
Page 1
From: Will Tackett
To: Monroe, Louise
Date: 2/3/05 8:44AM
Subject: Tentative Parcel Map 2004-21
Louise,
Vesting Tentative Parcel Map No. 2004-21 for the Old Armenian Town Center(southeast side of Ventura
between N and 0 Streets).
RDA has acknowledged its responsibility for the construction of off-site improvements required pursuant to
the Disposition and Development Agreement with Old Armenian Town, LLC.
I apologize for not bringing this point up during our last discussion, but I still need to know what public
improvement requirements there will be for the Santa Clara Avenue stub on the southwest side of 0
Street. Thanks!
Will
Will Tackett-TPM-2004 21 (Old Armer Town Center) Page 1Y�
...�®�
From: Will Tackett
To: Monroe, Louise
Date: 2/7/05 8:33AM
Subject: TPM-2004-21 (Old Armenian Town Center)
Louise,
Sorry if my previous email was ambiguous. RDA has acknowledged its responsibility for providing off-site
improvements relative to this map.
All I need to know is what improvements (if any)will need to be made to the Santa Clara Avenue "stub"
which is to be retained from the abandonment of Santa Clara Avenue. Thanks!
Will
'Will ,kW'-'TPM-2004-2i--
From:
kett-TPM-2004-21From: Will Tackett
To: Monroe, Louise
Date: .2/8/05 10:47AM
Subject: TPM-2004-21
Louise,
Will you please provide a memo pertaining to what we discussed yesterday over the phone and stating
exactly what improvements will be required for that portion of Santa Clara Avenue being retained for public
right-of-way purposes; whether the perimeter improvements(i.e. sidewalk returns, handicap ramps, etc.)
are existing or will need to be installed and to what standards (P-28, P-29, [?]); this for file documentation
and to be included as conditions of approval. Thanks. .
Will
1
s
i
;Will Tackett Tentative Map 2004 21`(C =enian Town) Page 1
From: Alan Kawakami
To: Jose Benavides; Mike Kirn
Date: 2/9/05 9:06AM
Subject: Tentative Map 2004-21 (Old Armenian Town)
Mike/Jose,
We have a Tentative Parcel Map (TPM) proposal submitted for the Old Armenian Town site that needs to
be processed in a timely manner.
Apparently RDA has plans to improve the site which may be raising some confusion as to whether or not
that serves to relieve the city from imposing pubic improvement requirements pursuant to the FMC.
If there are any public improvements required for this TPM,we need such requirements from Public
Works to be detailed and imposed ... or, if Public Works is electing to waive such requirements.
If improvements are required, they can be deferred through a Parcel Map Agreement or the developer can
first complete all the required improvements (to avoid the PM agreement) before the Final Parcel Map is
approved and recorded.
Please advise.
CC: Paul Bernal; Rick Sommerville; Will Tackett
Will Tackett-Re Tentative Map 2004-2 --)Id Armenian Town) Page 1 p
From: Jose Benavides
To: Alan Kawakami; Mike Kim
Date: 2/11/05 9:18AM
Subject: Re: Tentative Map 2004-21 (Old Armenian Town)
Alan, On November 24, 2004 we provided Will our comments and we see no reason why we need to
change those.
Thanks,
Jose Luis Benavides, P.E.
Public Works Department
Traffic Engineering Manager
2600 Fresno Street Rm. 4064
Fresno, CA 93721-3616
Phone(559) 621-8811
Fax(559)457-1280
>>>Alan Kawakami 02/11/05 8:41 AM >>>
status?
Mike/Jose,
We have a Tentative Parcel Map (TPM) proposal submitted for the Old Armenian Town site that needs to
be processed in a timely manner.
Apparently RDA has plans to improve the site which may be raising some confusion as to whether or not
that serves to relieve the city from imposing pubic improvement requirements pursuant to the FMC.
If there are any public improvements required for this TPM, we need such requirements from Public
Works to be detailed and imposed ... or, if Public Works is electing to waive such requirements.
If improvements are required, they can be deferred through a Parcel Map Agreement or the developer can
first complete all the required improvements (to avoid the PM agreement) before the Final Parcel Map is
approved and recorded.
Please advise.
CC: Nick Yovino; Paul Bernal; Rick Sommerville; Will Tackett
f
City of
CUa0VAp wr
DEPARTMENT OF PUBLIC UTILITIES
DATE_ November 9, 2004
TO: WILL TACKETT, Planner H
Planning and Development Department, Current.Planning
FROM: DOUG BECKER, Supervising Engineering Technician 6
P g g g
Department of Public Utilities, Planning and Engineering
SUBJECT': SANITARY SEWER AND WATER REQUIREMENTS FOR PARCEL MAP 2004-21
General'
PM-2004-21 is located on the southeast of Ventura Street between N and O Streets.
Sanitary sewer service
The nearest sanitary sewer mains to serve the project are a 16-inch main located in Ventura Street and
an 8-inch main located in Santa Clara Avenue. The following conditions shall be required to provide
sewer service to the project.
1_ Abandon 6-inch sanitary sewer main in alley between Ventura and Santa Clara Avenues& "N"
and"O"'Streets.
2. Separate sewer house branches shall be provided for each lot created.
3. Pub c sewer facilities shall be constructed in accordance with the Department of Public Works
standards, specifications, and policies.
4. Engineered improvement plans prepared by a Registered Civil Engineer shall be submitted for
Department of Public Utilities review and approvals for proposed additions to the City Sewer
System..
Sanitary Sewer Fees
The following.Sewer Connection Charges shall be paid for the Project:
L. Oversize Sewer Charge
2. Sewer Lateral Charge
3. Wastewater Facilities Charge (Non-Residential)
4. Trunk Service Basin: South Central
Water service
A 1.2-inch water main is located in Santa Clara Avenue and an 8-inch water main is located in Ventura
Avenue. The following conditions are required to provide water service to the project.
1. Construct a 12-inch water main(including installation of City fire hydrants) in"O" Street south
to "P" Street.
2. Abandon 8-inch water main in alley between Ventura and Santa Clara Avenues& "N" and "O"
Streets.
3. Installation(s) of public fire hydrant(s)is/are required in accordance with City Standards.
4. Separate water services with meter boxes shall be provided to each lot created.
5. Water Connection Charges arp due and shall be paid for the Project.
6. Engineered improvement plans prepared by a Registered Civil Engineer are required for
proposed additions to the City Water System.
7. Public water facilities shall be.constructed in accordance with Public Works Department
standards, specifications, and policies.
Water Fees
The following Water Connection Charges and fees shall be paid for the project.
1. Wet-ties, water service(s), and meter(s) installations to be performed by the City Water
Division.
2. Frontage Charge
City of
Planninq & Development Department
2600 Fresno Street • Third Floor Please Reply To:
Fresno, California 93721-3604 Will Tackett
(559) 621-8722 FAX(559) 488-1020 621-8063
PARCEL MAP REVIEW
DATE: October 22, 2004
DOUG HECKER
VESTING TENTATIVE PARCEL MAP NO. 2004-21
Please review the attached Tentative Parcel Map and make your comments below:
This a Vesting Tentative Parcel Map
Return this for to: Will Tackett, Planner I, Planning Division, Current Planning Section.
If you have any questions, please call.
COMMENTS: p
0
� F
i
j
W ill Tackett- PM 2004 21 wpd Page 1 r
i
THE DEPARTMENT OF PUBLIC WORKS
TO: Will Tacket
PLANNING DIVISION
FROM: Nancy Morrison, Program Manager, (559.621.8690)
SUBJECT: Parcel Map No. 2004-21
DATE: February 17,.2005
THE DEPARTMENT OF PUBLIC WORKS has reviewed the parcel map, dated August 18, 2004 prepared by
Lars Andersen &Associates, Inc . THE DEPARTMENT OF PUBLIC WORKS offers the following comments
regarding the"off-site"conditions as proposed on the landscape plans...
STREET TREES:
1. The street tree and irrigation requirements are deferred until the time of site plan review.
4
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STATE OF CALIFORNIA—BUSINESS,TRANSPORT r'AND HOUSING AGENCY ARNOLD SCHWARZENEGGER,Governor
DEPARTMENT OF TRANSPORTATION
1352 WEST OLIVE AVENUE = e
P.O.BOX 12616
FRESNO,CA 93778-2616
PHONE (559)445-6666
( ) f _. J �,,;��i r� Flex your power%
FAX 559 488-4088 L L -- 1
TTY (559)488-4066 Be energy efficient.
N O V 20,04
October 28, 2004
213 1-IGR/CEQA
f •4, ` '.. ., 6-FRE-41-23.07
OLD ARMENIAN TOWN
SCH NO. 2003051046
Mr. Will Tackett
City of Fresno Development Department
2344 Tulare Street, Suite 200
Fresno, CA 93721
Dear Mr.Tackett:
We have reviewed Vesting Tentative Parcel Map No. 2004-21 proposing to create three parcels on the
site of the "Old Armenian Town" project. The project site is located between "M" Street, Ventura, "0"
Street and State Route(SR)41. Caltrans has the following comments:
Caltrans has no objection to the parcel map. Our previous comments on the Old Armenian Town project
EIR(copies enclosed) still apply.
The Old Armenian Town EIR has yet to be certified. Should the parcels resulting from this map be
developed in a manner inconsistent with the current EIR, additional environmental analysis may be
necessary.
How will the City impose the mitigation recommended in the Old Armenian Town EIR should these
parcels fall under separate ownership?
We request that this letter be made apart of the permanent public record for this project and that a copy
of our letter be included in the staff reports for both the City Council and the Planning Commission. This
will provide the decision-making body and the general public with a complete and accurate
environmental evaluation for the project.
Please send a copy of the staff report(s) to Caltrans prior to any scheduled hearings for this item. If you
have any questions,please call me at(559)445-6666.
Sincerely,
MOSES STITES
Office of Transportation Planning
District 6
Enclosures
C: Mr. Richard Yee,Project Manager, City of Fresno Redevelopment Agency
Ms. Barbara Goodwin, Council of Fresno County Governments
State Clearinghouse
"Caltrans improves mobility across California"
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AgTEU 0
Daniel G. Hobbs }
City Manager ®� E E i VE cum
June 18, 2004
�.� T DEP
OF rA.tN'PORTAT10)V
°t TIMEAIST G
:
ATTENTION:
Mr. Jay Norvell, Director
Caltrans- District 06
;?it
1352 West Olive P_
Fresno, CA 93728
Dear t . NNorvel
The Purpose of this letter is to discuss three areas of concent that mutually affect our agencies. The first
part of this letter discusses the issue of impact fees for State owned infrastructure, the second part
discusses the City of Fresno's downtown revitalization, the last part requests information related to the
State's investment of VLF and other transportation taxes in the City of Fresno.
IMPACT FEES FOR STATE INFRASTRUCTURE
Over the last few years, Caltrans and the City of Fresno have conducted many discussions to address
the State and regional traffic issues related to State highways. Caltrans has stated its concems
regarding traffic mitigation and their assumptions related to the perceived impact local development has
had to the four State Highways that traverse the City of Fresno, Hwys. 99, 41, 168, and 180. It is the
City's position that all entitlements processed have been,and are compliant with CEQA and the Mitigation
Fee Act.
As demonstrated by previous correspondence sent to your office, including April 11, 2003, to Alan
McCuen, the City of Fresno is not opposed to the creation of a fee that would require developers to pay
their fair share of State Highway construction and expansion requirements. We believe that through the
preparation of required nexug analysis and development of a Memorandum of Understanding (MOU)or
other formal understanding between Caltrans and the City, a fee could be implemented in a manner that
affords your agency fair share funds to mitigate traffic impacts created by specific developments in the
Fresno area while setting forth a revenue stream that would be legally defensible in the event that the
fee were ever challenged.
Although past meetings between the City of Fresno and Caltrans,and written correspondence have failed
to generate a resolution of this issue,the City would like to continue discussions with Caltrans to explore
different legally supportable options.
Fresno
AI!-America Ctty
City of Fresno
City Hall • 2600 Fresno Street • Fresno, California 93721-3601
(559)621-7770 - FAX(559)621-7776 • www.fresno.gov 2000
■
Mr. Jay Norvell
June 18, 2004
Page 2
Caltrans Current Fee Model
Caltrans has requested that the City impose a fee to mitigate what Caltrans believes are impacts created
by specific developments on the State's infrastructure. This has been done on an ad hoc basis. Caltrans
is requiring that the fee be imposed and collected by the City and tendered to Caltrans.
There are two issues to consider: (1) whether a particular project does in fact create environmental
impacts on State infrastructure, and (2)whether the City may impose the Caltrans fee as mitigation for
such impacts.
Assuming the answer to the first issue for a particular project is in the affirmative, we turn to the second
issue. As you know, the Mitigation Fee Act imposes strict requirements on public entities regarding the
establishment of a fee, the imposition of a fee, the accounting of a fee,the use of a fee, the reporting of
a fee, and the return of unexpended fees after five years.
The City has on-going concerns regarding whether Caltrans has met these requirements. We have not
been provided with information evidencing that these requirements have been met. While Caltrans
shared information regarding the methodology for establishing the fee, there was language in that
document stating:
°...the methodology below is neither intended as, nor does it establish, a legal standard
for determining equitable responsibility in cost of a projects traffic impact..."
At face value this statement would suggest that the fee requested is not legally collectable, and would
subject the City to litigation exposure if mandated as a condition of entitlement approval.
We thus continue to have concerns regarding the manner in which the fee was established. We also
have continuing Mitigation Fee Act concerns relating to collection,accounting and expenditure of the fees
that need to be addressed.
Yet, the City does want to cooperate with Caltrans. The City stands ready to assist with Caltrans efforts
to comply with the Mitigation'Fee Act. We respectfully request further information supporting the.legal
adequacy for the fee. Other options offered for discussion are: (1) an MOU with Caltrans or(2) a Joint
Powers Authority Agreement.
MOU Model
The City has previously structured a similar arrangement with another State legislatively created agency,
the Fresno Metropolitan Flood Control District, ("the District"). The District was created by the uncodified
portions of the State's Water Code and establishes.an agency with regional responsibilities for managing
drainage impacts.
The City has entered into an MOU with the District wherein they establish a fee for their improvement
requirements and based upon that MOU, the City imposes a fee on local development. Whenever a
developer or owner is subject to that fee, the City collects the fee on behalf of the District. Since the
nexus analysis and fee formation are developed by the District's own engineers and the City acts as a
mere conduit for the collection of the fee, the District has agreed to indemnify the City in the event the
i =
i
Mr. Jay Norvell
June 18, 2004
Page 3
City were exposed to any costs for liability based on imposition of the fee. This joint effort and mutually
beneficial arrangement between the City and the District has been operating successfully for years. We
would propose to Caltrans that this option of entering into an MOU between the two agencies would not
only be beneficial for both parties but legally supportable.
The State legislature clearly anticipated this type of mutual cooperation between the Department of
Transportation and local agencies when they chaptered Section 66006.5 of the California Government
Code which addresses ways to facilitate the donation of real property for highway purposes. Section
66006.5 (b) states:
(b) "To facilitate the implementation of subdivision (a), the Department of
Transportation shall do all of the following:
(4) Enhance communication and coordination with local public entities through
agreements of understanding that address state acceptance of right-of-
way donations."
Although this section would not be applicable to local freeways that are constructed, maintained or
expanded with Federal funds, it does manifest the interest of the State legislature to have Caltrans
working closely with local agencies through the vehicle of an MOU.
Joint Powers Authority Model
Another option the City has proposed in the past is the creation of a Joint Powers Authority (JPA)
between the City of Fresno and Caltrans. Article 1, Chapter 5, Division 7, of Title 1, of the Government
Code, Sections 6500 et sequentes, authorizes multiple governmental agencies to enter into agreements
for the improvements of public works of improvement. Section 6500 specifically defines"Public Agency"
as, "the Federal government or any Federal department or agency,this State[California], another State
or any State department or agency...a county...or any joint powers authority formed pursuant to this
article by any of these agencies."
It is clear that the State legislature intended that State departments like Caltrans, would have the
authority to enter into joint powers authority agreements with local agencies, like the City of Fresno. We
believe that fair share proportionate State infrastructure improvements like local highways could be
funded through a fee, based on impacts to the system imposed by a JPA for these -types of
improvements.
As with the MOU Model, Caltrans would assume responsibility for nexus establishment, imposition,
accounting, and expenditure of funds collected and forwarded to the State by the City. This structure
would create a legally viable method for.the City to collect fees for State highway infrastructure
improvements.
DOWNTOWN REVITALIZATION
Caltrans staff has inquired regarding the status of the environmental impact mitigation measures
applicable to the Fresno Regional Medical Center facility expansion project being constructed by the
Community Hospitals of Central California. This multi-phased project, generally located within the area
i
Mr. Jay Norvell
June 18 2004
Page 4
bound Fresno Street,the B.N.&S.F.Railroad mainline tracks and McKenzie Street,has been addressed
by several City of Fresno and Fresno City Redevelopment Agency actions and accompanying
environmental reviews during a ten-year period of time. These evaluations commenced with a
conceptual campus master plan, which was initially examined by Master Environmental Impact Report
No. 10120 prepared and certified for Plan Amendment No.A-95-01 and other related City of Fresno and
Fresno City Redevelopment Agency actions.
The initial project concept has been modified several times and has been subsequently addressed by
several zoning ordinance special permits and accompanying environmental review determinations. A
summary of the various special permits and related environmental determinations is attached. Based
upon an examination of these actions it is apparent that the mitigation measures established by MSIR
No. 10120 remain applicable to the project by virtue of their citation by subsequent environmental
documents including a Finding of No Significant Impact (FONSI) determined by Environmental
Assessment No. EA-96-11 and mitigated negative declarations determined by Environmental
Assessment No. C-00-234 and Environmental Assessment No. C-01-170.
The City of Fresno remains committed to assuring that the adopted mitigation measures applicable to
the Fresno Regional Medical Center and other recent redevelopment projects within the city's central or
downtown area are fulfilled or complied with. Furthermore, the City of Fresno supports and advocates
a cooperative approach with Caltrans and surrounding contributing communities to address transportation
capacity improvements within the central area in a manner'that will best serve the public's health, safety
and welfare including the region's economic well-being.
The City of Fresno intends to work with the Fresno County Council of Governments and other
governmental entities to utilize the Regional Transportation Plan process and regional transportation
funding programs, such as Regional Surface Transportation Program (RSTP), Congestion Mitigation /
Air Quality(CMAQ),Transportation Enhancement Activities(TE)to establish a funding strategy for state
transportation facility improvements. Strategies to provide an efficient, reliable and environmentally_
positive transportation system must consider not only increased vehicular capacity of streets and
freeways but those forms of transportation not previously given serious consideration or thought to be
economically infeasible.
To this end, the City has completed the design work for the Fresno Street widening from Q Street to S
Street. The project is expected to be awarded by the City Council on June 22, 2004 with construction
completion slated for the fall of 2004. We are also submitting applications for grant funding through the
competitive bid component of the next cycle of TEA-21 funding for the Freeway 41/0 Street off-ramp
improvements and improvements to the 41 northbound on-ramp at Divisadero.
A strategy focused upon exactions of impact fees from new downtown developments in order to
reconstruct freeway access ramps and intersections alone utilizes a regressive and punitive approach
to provide an ephemeral benefit. Furthermore, the Regional Medical Center Campus site will serve as
the county hospital serving the major medical needs of uninsured and indigent residents of the
community. As a non-profit entity providing a public service under contract with the County of Fresno it
would be a disservice to the community to expect it to provide substantial monetary contribution toward
the cost of improving freeway facilities.
Jay Norvell
June 18, 2004
Page 5
It is imperative that reliable and credible processes be utilized to identify appropriate improvements,
determine improvement costs and allocate proportionate benefit and responsibility for these costs.
The City of Fresno has strongly supported regional efforts, such as the Fresno County Measure "C"
Transportation Sales Tax which will generate well over three-quarters of a billion dollars for local and Mr.
regional street and highway improvements. Without this infusion of local resources the State of California
would have continued to ignore its responsibility to construct and maintain state highway routes within
Fresno County during the past twenty years.
In order to facilitate the formulation of a legally acceptable traffic impact fee to be exacted as a condition
of a development entitlement, the City of Fresno assisted in the preparation of the Partnership In
Planning Grant application filed by the Council of Fresno County Governments to complete a freeway
deficiency study. Should this study provide the documentation necessary to justify a state facility traffic
impact fee the City will continue to work with other local and state government agencies to formulate an
appropriate region-wide fee system.
STATE INVESTMENT OF LOCALLY COLLECTED VLF AND GAS TAX
With respect to assigning responsibility for the cost of improvements, it has been widely accepted that
over the past four decades Fresno County has generally been a donor region that generated more
vehicle license fees and gasoline sales tax revenue for transportation purposes than was typically
expended within the county.
Because of this concern, the City of Fresno is hereby requesting a full accounting of the total amount of
gasoline tax or other transportation devoted tax contributions made by the City and County of Fresno
during the past ten years, and the funds expended by Caltrans within the City and County of Fresno
during this same time period. This is vitally important as we develop strategies for impact fees for State
owned.infrastructure. We need to demonstrate that the City has received its "fair share" return and
investment of taxes collected locally.
We look forward to working together to address this complex but interesting issue.
Sincerely,
JON R. RUIZ
Assistant City Manager
JRR/SED/CalTmsLtr61 BD4.wpd
Attachments
c: Michael T.Kim
Nick Yovino
Dave Hale
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ATTACHMENT 1
CHRONOLOGICAL LIST OF THOSE ENTITLEMENTS SUBMITTED FOR THE REGIONAL MEDICAL
CENTER (RMC)AND THE RELATED ENVIRONMENTAL REVIEWS COMPLETED
1. January of 1995
Plan Amendment No. A-95-01: For the original project, as defined by the MEIR, see attached.
Environmental Review: Master Environmental Impact Report No. 10120, which included mitigation
measures and a monitoring checklist.
2. February of 1995
Conditional Use Permit No. C-96-53: For a significantly scaled down version of the project as compared
to the project outlined in EIR No. 10120. Environmental Review: Environmental Assessment No.
EA-96-11, which resulted in a Finding of No Significant Impact (FONSI), was prepared as both CEQA
and NEPA were necessary due to the use of federal funds.
3. October of 2000
Site Plan Review No. S-00-258: Placement of two modular buildings. Environmental Review: Class 32
Categorical Exemption.
.4. January of 2001
Conditional Use Permit No. C-00-234: Expansion of site for a six-story trauma center with basement
loading docks and a new central plant to serve the expansion. Environmental Review:Mitigated Negative
Declaration, which incorporated the measures outlined in EIR No. 10120.
5. September of 2001
Conditional Use Permit No. C-01-170: Expansion of site for a three-story medical education facility, a
temporary modular building for outpatient dialysis treatment and a two-story ambulatory care facility.
Environmental Review:Mitigated Negative Declaration,which incorporated the measures outlined in EI R
No. 10120 and EA-96-11.
6. June of 2002
Conditional Use Permit No. C-02-73: For a temporary parking lot, which had been previously assessed
under Conditional Use Permit No. C-01-170. Environmental Review: Found consistent with previous
environmental assessment under C-01-170.
7. September of 2002
Conditional Use Permit No. C-02-169: Redesign of a parking lot. Environmental Review: Found
consistent with previous environmental assessment. The review of the above listed environmental
documents reveal the following facts related to mitigation measures that are applicable to the Regional
Medical Center project:
1. 1. EIR No. 10120: Sets seventy-seven (77) mitigation measures to be implemented forthe original
project, as defined in the EIR.
,r
2. 2. EA No.96-11:Completed for CUP No.C-96-53,adopted a FONSI for the project,and specifically
stated that Mitigation measures related to Air Quality, Noise; and Waste Water as identified in EIR
No. 10120 be carried forward and implemented against this scaled down version of the project.
3. 3. EA No. C-00-234:Adopted a Mitigated Negative Declaration, but also stated that the expansion
project is subject to the measures outlined in EIR No 10120.
4. 4. EA No. C-01-170: Adopted a Mitigated Negative Declaration, identified specific mitigation
measures, and incorporated the findings of MEIR No. 10120 and EA-96-11 into its findings by
reference.
As a result of this review,it is concluded that the mitigation measures applicable to the RMC development
are contained in EIR No. 10120, and supplemented by two measures each from EA No.196-11 and EA
No. C-01-170.
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STATE OF CALIFORNIA—BUSINESS,TRANSPORT V AND HOUSING AGENCY ARNOLD SCHWARZENEGGER Governor
DEPARTMENT OF TRANSPORTATION
1352 WEST OLIVE AVENUE d
P.O.BOX 12616
FRESNO,CA 93778-2616
PHONE (559)445-6666
FAX (559)488-4088 Flex your power!
Be energy efficient!
TTY (559)488-4066
EIL1
July 12, 2004
213 1-IGR/CEQA
`
6-FRE-41-23.07+/-
OLD ARMENIAN TOWN
SCH NO. 2003051046
Mr. Richard Yee, Project Manager
Redevelopment Agency of the City of Fresno
2344 Tulare Street, Suite 200
Fresno, CA 93721
Dear Mr. Yee:
We have reviewed the Draft EIR (DEIR) for the project known as "Old Armenian Town."
The proposed project site is located between "M Street, Ventura, "O" Street and State
Route (SR) 41. Caltrans has the following comments:
Page 1-1, Section B states:
"The Agency is also aware of traffic and air quality issues inherent in a project
of this magnitude. Although the Project incorporates feasible mitigation
measures for impacts related to these issues, the Agency recognizes that traffic
and air quality impacts would remain significant with the development of this
Project."
Page IV-12 states:
"it is expected 'that the lines of vehicles making specific movements
(northbound left turns, northbound through, and northbound right turns on O
Street at Ventura Street) may exceed the available storage distance during
peak hours and that congestion will result. This is an impact that cannot be
fully mitigated, if the Project proceeds."
Page IV-13 states:
"Thus, it is recognized that cumulative traffic impacts cannot be completely
mitigated in the downtown area."
Page V-1 states cumulative impacts to transportation/traffic and to air quality are
significant and unavoidable.
"Caltrans improves mobility across California"
• Mr. Richard Yee-
July 12, 2004
Page 2
Page VII-1 states:
"The unavoidable environmental impacts that will result from implementation
of the Old Armenian Town Project are related to: Transportation/Traffic (See
Section V-A); and Air Quality.(See Section V-C). These impacts cannot be
alleviated by imposing an alternative design for the project, nor can they be
avoided by imposition of mitigation measures."
Please note that Table 1-1 lists traffic and air quality impacts as "Less Than Significant"
after the implementation of mitigation measures. The narrative throughout the body of
the DEIR contradicts this statement. The Table needs to be corrected to reflect the
narrative. As these impacts cannot be mitigated, the lead agency will need to make a
finding of overriding consideration to approve the project.
Caltrans recommends that Table 1-1 also be revised to reflect who is responsible for the
identified mitigation. . While this is stated in various parts of the document as narrative,
having the information in Table 1-1 would make review, and subsequent monitoring, of
the project's mitigation easier for the Redevelopment Agency, State Courthouse,
developers,responsible agencies and the general public.
Page IV-12, Mitigation Measure TR-4, presents two different fair share percentages; one
based on the City's formula and one on Caltrans' formula. Which percentage does the
City intend to utilize? The DEIR should be clear on this point as subsequent monitoring
of the mitigation measures will be very difficult if the responsible agency and the general
public are unaware of the City's intent and subsequent responsibility for project-specific
impacts, per CEQA.
Cost estimates will be needed to calculate the fair shares for the percentages shown on
Table 33 on page 156. The cost estimates can be developed by either the consultant and
submitted to Caltrans for review, or the costs can be developed by Caltrans.
Mitigation Measure AQ-3 requires the developer to prepare a traffic control plan for any
construction that encroaches into City streets. Due to the proximity of the SR 41 ramp,
congestion on City streets created by construction activities could cause back-ups on the
ramp and/or mainline. Caltrans recommends that review and approval of the traffic
management plan be coordinated with District 6 Traffic Operations.
Page IV-1 indicates states:
"The location and size of footprints for all new structures have been
determined but the final number of floors and height of the three (3) Class A
office buildings will ultimately be determined by market conditions."
"Caltrans improves mobility across California"
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July 12, 2004
Page 3
Please clarify that the DEIR, and in particular.the Traffic Impact Study (TIS) analyzed for
a "worst-case" scenario, assuming the maximum allowable number of floors and building
heights to determine impacts, as per CEQA.
Page IV-4 (i) states that impacts to transportation/circulation are considered significant if
they:
"Exceed, either individually or cumulatively, Level of Service "D" for major
street and highway segments designed on the Circulation Element."
While this comment specifically mentions the limits imposed by the 2025 General Plan
MEIR, this project will also impact State facilities. Please note that Caltrans endeavors to
maintain LOS "C" on State facilities, not LOS "D" as stated on Page 1-3. Where
circumstances make LOS "C" infeasible, a lesser level of service may be acceptable on a
case-by-case basis.
Page IV-10 states:
"These intersections were previously identified as having a potential for being
impacted by proposed downtown redevelopment and as such the City of
Fresno and Caltrans are collecting Fair Share contributions from the various
downtown developers to mitigate impacts as they are identified."
While several EIRs prepared for downtown projects have identified mitigation to, and a
fair share for, State Facilities, the City has not to date either collected for or constructed
these improvements. The City has not supported Caltrans in our efforts to obtain
mitigation to State Facilities. In fact, most of the correspondence we have received from
the City indicates that the City's philosophy is that such mitigation is illegal. If the City's
position on this issue has changed, we would like that identified in the EIR. If the City's
position has not changed, then the statement in the EIR needs to be corrected. As the
statement currently exists, it is misleading.
The June 18, 2004 letter to Caltrans from Jon Ruiz (enclosed) addresses Caltrans requests
for information on the status of identified mitigation for the Regional Medical Center and
other downtown projects by stating that:
"The City of Fresno intends to work with the Fresno County Council of
Governments and other . governmental entities to utilize the Regional
Transportation Plan process and regional transportation funding programs,
such as Regional Surface Transportation Program (RSTP), Congestion
"Caltrans improves mobility across California"
Mr. Richard Yee
July 12, 2004
Page 4
Mitigation, Air Quality (CMAQ), Transportation Enhancement Activities (TE)
to establish a funding strategy for state transportation facility improvements."
While the DEIR indicates that responsibility for mitigation to the State Highway System
lies with the City or the developer, if the City is intending to utilize the approach
mentioned in Mr. Ruiz's June 181h letter, it should be noted that such funds are not
unlimited nor guaranteed. Regional Transportation Improvement Program (RTIP)
funding for the Council of Fresno County Governments' (COFCG) has been committed
through 2009. Additional funding is unlikely to be made available. Furthermore, projects
are funded on a competitive basis, with projects from other COFCG member agency's
also seeking to obtain funding. Many of these agencies either have impact fee programs
or make mitigation by developers to State Facilities a condition of project approval. They
may not be willing to sacrifice funding for needed projects within their jurisdictions to
provide mitigation for developments occurring in Fresno. Such funding is therefore not a
given. With that in mind, we. are concerned that the EIR mentions mitigation without
having a funding source fully identified. Mitigation funding should be identified up front
so there is no question at a later date.
Also in Mr. Ruiz's ,June 18; 2004 letter is a statement that relates directly to Old
Armenian Town. The statement reads:
"We are also submitting applications for grant funding through the
competitive bid component of the next cycle of TEA-21 funding for the
Freeway 41/0 Street off-ramp improvements and improvements to the 41
northbound on-ramp at Divisadero."
Please note that, once again, these funds are not guaranteed nor unlimited. Should
funding be denied; the DEIR should identify an alternative source of funding to
implement the mitigation for this project's impacts. Under CEQA, hoping for future
funds that are not under the control of the lead agency does not represent mitigation.
Page IV-13 states that:
"With reference to Section 504.3(5) of the CALTRANS Highway Design
Manual, CALTRANS District 6 is responsible for designing, building, and
operating 2-lane exit ramps from State Highways. Therefore, when design
year volumes reach 1500 "Passenger Car Equivalents" (as defined in the
Caltrans Highway Design Manual on the O Street exit ramp from SR 41,
CALTRANS District 6 will widen the ramp from one lane to two lanes and
construct the auxiliary lane."
This statement may quote our Design Manual, but the manner in which it is used by the
EIR consultant in the DEIR is misleading. The statement suggests that Caltrans is
"Caltrans improves mobility across California"
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Mr. Richard Yee
July 12, 2004
Page 5
responsible for mitigating for this project's impacts to State Facilities. CEQA does not
allow deferment of mitigation to another Agency. Under CEQA, the lead agency or the
project proponent (Gunner & Andros; State Courthouse) are responsible to mitigate for
project-related impacts. Impacts need to be reduced to a level less than significant or the
lead agency needs to make a finding of overriding consideration. Table 1 on Page 4 of the
TIS states that the level of service of the off-ramp/"O" Street intersection (Option 4) will
drop from LOS "C" to LOS "D" for Phase I of this project, LOS "E" for Phase II-A, and
LOS "F" for Phase II-B/II-C, which may cause traffic to back up onto the freeway
mainline. The project would contribute 539 AM peak hour trips to the off-ramp (Figure
10A), which would cause the ramp volume to exceed 1500 passenger car equivalents
(PCE) in the existing plus Phase 11-C condition (Figure 33). The ramp traffic volumes will
not exceed 1500 PCE in the 2025 no project condition (Figure 41). The need for a two-
lane exit can therefore be directly attributed to the traffic generated by this project and
needs to be mitigated by the project proponents.
Page IV-13 also states:
."the City and the Agency shall work with Caltrans to establish a traffic impact
fee on the Project and other properties contributing to this cumulative impact
to help fund these exit ramp widening improvements."
Caltrans strongly supports this statement. We wish to clarify, however, that this program
needs to be agreed to prior to project approval otherwise it will not be clear what project
mitigation has been established. The decision-making body cannot make a fully informed
decision without knowing what they are approving and at what cost. Caltrans and the
general public cannot review or monitor mitigation if that mitigation has not been
determined. We could end up with a fully constructed project, but insufficient funds to
mitigate the project's impacts. Therefore, this mitigation program needs to be established
"up front," prior to project approval. If the City intends to fund the improvements, as
indicated in our November 19, 2002 Memorandum of Understanding with the City
(enclosed) then it would not be necessary to agree to a mitigation program prior to project
approval. In this case, the DEIR should be revised to state clearly that the City is
responsible for the mitigation for this project. We also recommend that the project be
conditioned such that full entitlements would not be granted until such time as the
mitigation has been implemented or the traffic mitigation program between Caltrans and
the City has been established.
Page 157 of the TIS states that the City will install a new traffic signal and reconstruct the
intersection of the southbound SR 41 off-ramp at "O" Street, and reconstruct the segment
of"O" Street between the off-ramp and Ventura Avenue at opening day, as described on
pages 153 to 154. This signal will need to be coordinated with the traffic signal at the
intersection of"O" Street and Ventura Avenue.
"Caltrans improves mobility across California"
Mr. Richard Yee
July 12, 2004
Page 6
Page IV-12 of the DEIR states that the northbound queuing at "O" Street/Ventura Avenue
cannot be fully mitigated and that congestion will result if the project proceeds. However,
it is stated on Page 147 of the TIS that an additional northbound through lane at "O" Street
and Ventura Avenue will reduce the queuing problem that is expected to occur after the
project is constructed. The DEIR needs to be corrected to reflect the actual traffic
analysis. Caltrans recommends that the City include the additional northbound through
lane in the proposed improvements as feasible mitigation. It should be noted that dual
right-turn lanes on the off-ramp will need two receiving lanes in the northbound "O"
Street.
Protected left-turn phasing at the "O" Street/Ventura Avenue intersection is recommended
for opening day.
In addition to the design exceptions required for the two advisory design standards stated
on Page IV-6 of the Draft EIR, several mandatory design exceptions, as listed on page 157
of the TIS, will be required. These should be added to the DEIR. Also, an isolated
southbound off-ramp (Index 502.2 of the Highway Design Manual) is an advisory design
exception.
Page 15 of the TIS, Option 4 shows the least queuing on northbound "O" Street
approaching Ventura Avenue. This is inconsistent.with the worksheets for the mitigated
2025 project scenario in the appendix. This should be corrected.
Mitigation measures to State Facilities have been identified in the DEIR and it is stated
that the identified improvements will be monitored. by the Public Works Department.
Please be advised that recent legislation, Assembly Bill (AB) 1807, amending the
California Environmental Quality Act (CEQA),.Public Resources Code Sections 21081.4,
21081.6 and 21081.7, required the California Department of Transportation (Department)
to establish mitigation monitoring submittal guidelines for public agencies. The guidelines
affect agencies that have approved development projects and are required under CEQA to
provide the State Department of Transportation reports on transportation-related mitigation
monitoring measures. The Guidelines discuss the scope, purpose and legal requirements
for mitigation monitoring reporting and submittal, specify the generic content for reports,
and explain procedures for timing, certification and submittal of reports.
The Old Armenian Town Project will need to submit mitigation monitoring reports to
Caltrans. To aid your agency in fulfilling this CEQA reporting requirement, the enclosed
Mitigation Monitoring Certification Checklist form is provided. Please complete and sign
a Certification Checklist form and return it to Marc Birnbaum, Chief, Transportation
Planning, at the letterhead address. This should be done when the mitigation measures are
approved, and again when they are completed. We recommend that the forms be made a
part of the Final EIR within the mitigation monitoring section to alleviate any possible
future misunderstandings.
"Caltrans improves mobility across California"
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Mr. Richard Yee
July 12, 2004
Page 7
We request that this letter be made a part of the permanent public record for this project
and that a copy of our letter be included in the staff reports for both the City Council and
the Planning Commission. This will provide the decision-making body and the general
public with a complete and accurate environmental evaluation for the project.
Please send a copy of the staff report(s) to Caltrans prior to any scheduled hearings for
this item. If you have any questions, please call me at (559) 445-6666.
Sincerely,
MOSES STTTES
Office of Transportation Planning
District 6
Enclosures
C: Mr. Jon Ruiz, City of Fresno Public Works
Mr. Jose Benavides, City of Fresno Public Works Department
Mr. Mark Coyne, California Department of General Services
Ms. Barbara Goodwin, Council of Fresno County Governments
State Clearinghouse
"Caltrans improves mobility across California"
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STATE OF CALIFORNIA—BUSINESS.TRANSPORTA 'AND HOUSING AGENCY ARNOLD SCHWARZENEGGER Governor
DEPARTMENT OF TRANSPORTATION
1352 WEST OLIVE AVENUE
P.O.BOX 12616
FRESNO,CA 93778-2616
PHONE (559)445-6666
FAX (559)488-4088 Be energy Flex your power!
��; !r �^I� efficient!
TTY (559)488-4066 83 a f�
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8
October 18, 2004 < .
213 1-IGR/CEQA
J,
6-FRE-41-23.07+/-
OLD ARMENIAN TOWN
SCH NO. 2003051046
Mr. Richard Yee, Project Manager
Redevelopment Agency of the City of Fresno
2344 Tulare Street, Suite 200
Fresno, CA 93721
Dear Mr. Yee:
We have reviewed the Response to Comments on the DEIR for the project known as "Old
Armenian Town." The proposed project site is located between "M" Street, Ventura, "O"
Street and State Route (SR) 41. Caltrans has the following comments:
Page II-8: The pro rata fair share calculations identified in the report show two types of
calculations: one using the City of Fresno formula and the second using the Caltrans
formula (per Caltrans Guide for the Preparation of Traffic Impact Studies). This could
lead to future uncertainty as to who pays for the mitigation measures and what amount is
due. Caltrans still recommends that this be clarified before the EIR is certified.
Page 11-9: There is a major discrepancy with the 2010 threshold used for the ramp and
auxiliary lane improvements. This will need to be clarified and the project conditioned to
prevent impacts to the operational conditions of the ramp and the SR 41 mainline. We
request that this be reworded to state the identified improvements are to be constructed
prior to occupancy and/or prior to the third phase unless warranted sooner by the Level Of
Service, accidents or queuing on the ramp and mainline.
The City's Response to E-10, states that:
"The Redevelopment Agency has again reviewed the statutory language as discussed on
DEIR page IV-13 and concurs with its original interpretation, i.e. Caltrans District 6 is
responsible for designing, building and operating 2-lane exit ramps from State
Highways. "
This statement is correct, but its placement in the Response to Comments relative to the
project's responsibility for mitigation could be misleading. The statement suggests that
"Caltrans improves mobility across California"
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Mr. Richard Yee _
October 18, 2004
Page 2
Caltrans is responsible for mitigating for this project's impacts to State Facilities. This is
incorrect. The improvements are needed as a result of this development, and are therefore
the responsibility of the developer, the City or the Redevelopment Agency. Impacts need
to be reduced to a level less-than significant or the lead agency needs to make a finding of
overriding consideration.
The City's Response to E-10 goes on to state that:
"Caltrans is a responsible agency that will be partially responsible for implementing
some of the traffic improvements intended to mitigate cumulative traffic impacts from this
and other projects. "
This statement is false, and needs to be removed from the document. We are not
responsible for designing or constructing a_y of the improvements to State Highways
identified in this or any other EIRs for downtown projects. Caltrans is a Responsible
Agency, per CE A, as this project will need a permit from us in order to implement
mitigation measures identified in the EIR. All designs and construction on the State
Highway System must meet State standards; however, our only responsibility will be to
review and approve the design prior to issuing an encroachment permit and to provide
oversight for the construction.
The City's Response to E-12 states that
The City will strive to coordinate the SR 41 off-ramp at -0- Street intersection signal
with the Ventura at -0- Street signal. However, as Caltrans staff has indicated, (1) the
City and Caltrans utilize different controller types, which may inhibit coordination, and
(2) the City may want,to coordinate all intersections along Ventura, which may inhibit
coordination with the SR 41 off-ramp at "O"Street signal.
Caltrans recognizes the technical limitations involved in signal coordination between our
two agencies and is satisfied with the response to our comment. Please note, however,
that if necessary, we will adjust our signal to prevent queuing on the mainline as such
queuing poses an operational concern, a concern far greater than queuing on local streets.
The agreement dated 11/19/02 between the City of Fresno, RDA and Caltrans States
"Caltrans shall have full participation, review and concurrence of the procedures used in
the study and to the study's technical correctness". Please note; we were not provided
with an opportunity to participate in the preparation of the Draft EIR or with the
Response to Comments, even after repeated attempts to meet with staff and the
consultants. Caltrans has worked diligently to avoid delaying what we know to be an
important project for the City, but there are still some unresolved issues as stated above in
this, the Final EIR. These issues could have been resolved at an earlier stage of the
"Caltrans improves mobility across California"
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Mr. Richard Yee
October 18, 2004
Page 3
project had we been provided more opportunity for input. Once again, we must remind
the City that, in the case of this project, Caltrans is a Responsible Agency as defined
under CEQA. Some of the improvements required to mitigate for project-related impacts
will entail a Caltrans encroachment permit. When an encroachment permit is required, it
is ultimately Caltrans that has the authority to determine the proper mitigation and
environmental documents for its facility, and the standards to which these improvements
,will be held. The permit application will require additional review time from our permit
engineers, and possibly additional requirements should the current environmental
document being conducted by the City of Fresno be inadequate to support the permit.
We request that this letter be made a part of the permanent public record for this project
and that a copy of our letter be included in the staff reports for both the City Council
(acting as the Redevelopment Agency) and the Housing and Community Development
Commission. This will provide the decision-making body and the general public with a
complete and accurate environmental evaluation for the project.
Please send a copy of the staff report(s) to Caltrans prior to any scheduled hearings for
this item. If you have any questions,please call me at(559) 445-6666.
Sincerely,
MOSES STITES
Office of Transportation Planning
District 6
C: Mr. Jose Benavides, City of Fresno Public Works Department
Mr. Mark Coyne, California Department of General Services
Ms. Barbara Goodwin, Council of Fresno County Governments
State Clearinghouse
"Caltrans improves mobility across California"
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,STBTI OF CALIFORNIA—BUSINESS TRANSPORTAT" 'NAND HOUSING AGENCY GRAY DAMS.Governor
DEPARTMENT OF TRANSPOR'T'ATION -
1352 WEST OLIVE AVENUE
P. O.BOX 1.2616 -
FRESNO, CA 93778-2616
PHONE (559) 488-4115 Fl"yourpower!
FAX 559 445-6173 _ ,r r •... ffi Il '
( ) `�_:.;; _. ;,, I L: i I—..\ Be ever a tcient.
TTY (559)488-4066
November 19, 2002
t
Mr. Daniel Hobbs, City Manager
City of.Fresno
2600 Fresno Street
Fresno, CA 93721-3604
Dear Mr. Hobbs:
Caltrans concerns regarding the proposed development known as "Old Armenian
Town" have been addressed in the enclosed agreement between the California
Department of Transportation, the City of Fresno and the Redevelopment Agency.
Please incorporate this agreement into the City of Fresno's Environmental
Assessment No. C-02-061 being considered by the City Council on November 19,
2002.
If you have any questions, please call me at (559) 488-4115.
Sincerely,
D. ALAN McCUEN
Deputy District Director
Planning
Enclosure
C: Mr. Nick Yovino, City of Fresno Development Department
..Mr. Daniel Fitzpatrick, City of Fresno Redevelopment
"Caltrans improves mobility across California"
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.$TATE OF CALIFORNIA—BUSINESS TRANSPORTAT" '.1 AND HOUSING AGENCY GRAY DAMS Governor
DEPARTMENT OF TRANSPORTATION
1352 WEST OLIVE AVENUE
P. 0.BOX 3.2616 -
FRESNO, CA 93778-2616 -
PHONE (559)488-4115 Flezyourpowerl
FAX (559)445-6173 ��� '�L ; 1� Be energy efcientt
TTY (559)488-4066 J
November 19, 2002
Mr. Daniel Hobbs, City Manager
City of Fresno
2600 Fresno Street
Fresno, CA 93721-3604
Dear Mr. Hobbs:
Caltrans concerns regarding the proposed development known as "Old Armenian
Town" have been addressed in the enclosed agreement between the California
Department of Transportation, the City of Fresno and the Redevelopment Agency.
Please incorporate this agreement into the City of Fresno's Environmental
Assessment No. C-02-061 being considered by the City Council on November 19,
2002.
If you have any questions, please call me at (559) 488-4115.
Sincerely,
D. ALAN McCUEN
Deputy District Director
Planning
Enclosure'
C: Mr. Nick Yovino, City of Fresno Development Department
Mr. Daniel Fitzpatrick, City of Fresno Redevelopment
"Caltrans improves mobility across California"
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Mr. Richard Yee
October 18, 2004
Page 3
project had we been provided more opportunity for input. Once again, we must remind
the City that, in the case of this project, Caltrans is a Responsible Agency as defined
under CEQA. Some of the improvements required to mitigate for project-related impacts
will entail a Caltrans encroachment permit. When an encroachment permit is required, it
is ultimately Caltrans that has the authority to determine the proper mitigation and
environmental documents for its facility, and the standards to which these improvements
.will be held. The permit application will require additional review time from our permit
engineers, and possibly additional requirements should the current environmental
document being conducted by the City of Fresno be inadequate to support the permit.
We request that this letter be made a part of the permanent public record for this .project
and that a copy of our letter be included in the staff reports for both the City Council
(acting as the Redevelopment Agency) and the Housing and Community Development
Commission. This will provide the decision-making body and the general public with a
complete and accurate environmental evaluation for the project.
Please send a copy of the staff report(s) to Caltrans prior to any scheduled hearings for
this item. 4 If you have any questions, please call me at (559) 445-6666.
Sincerely,
MOSES STITES
Office of Transportation Planning
District 6
C: Mr. Jose Benavides, City of Fresno Public Works Department
Mr. Mark Coyne, California Department of General Services
Ms. Barbara Goodwin,Council of Fresno County Governments
State Clearinghouse
"Caltrans improves mobility across California"
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AGREEMENT
MEMORANDUM OF UNDERSTANDING
THIS AGREEMENT is made this day of . 2002, by and between
the California Department of Transportation, hereinafter designated"Caltrans", the City of
Fresno hereinafter designated "City" and the Redevelopment Agency, hereinafter designated
"Agency", without regard to number or gender.
RECITAL
WHEREAS, the City has completed Environmental Assessment No. C-02-061 on that
certain parcel of land bounded by Ventura Street on the northwest, "0" Street on the
northeast, State Route 41 on the southeast and"M" Street on the southwest within the
downtown Fresno area; and
WHEREAS, an Environmental Assessment No. C-02.061 was prepared for the
proposed development known as Old Armenian Town; and
WHEREAS, Caltrans identified significant direct and cumulative transportation
impacts beyond the boundary of the proposed development, affecting State Highways; and
WHEREAS, measures to mitigate these transportation and circulation impacts were
identified in Caltrans letters dated November 12, 2002 and October 10, 2002, attached hereto
and incorporated herein by this reference;.and
WHEREAS, said Envitonmental Assessment set forth the relationship between the
proposed development and the needed facilities and said study identified those
improvements.
Now, THEREFORE, the City, Agency and Caltrans'do hereby mutually agree as
follows:
I. TRAFFIC MITIGATION FOR THE 5TH DISTRICT COURT OF APPEALS
BUILDING AND PARKING LOT, PHASE 1 OF THE PROJECT KNOWN AS OLD
ARMENIAN TOWN
The City agrees that signalization.and any other operational improvement for "0"
Street as generally set forth in"Exhibit A", including Traffic Signals at the State
Route 41 southbound off-ramp, Santa Clara Street and "0" Street intersection, will
be in place prior to opening day of the 5th District Court of Appeals Courthouse
building and parking lot. The required subsequent Traffic Impact Study, intended
to address specific circulation design elements, will be conducted according to
Caltrans' "Guide for the Preparation of Traffic Impact Studies", dated June, 2001
with full participation; review and concurrence of Caltrans.The subsequent Traffic
Impact Study will be completed within 120 days and before submitting for the
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Caltrans Encroachment Permit. The City assumes full financial responsibility for
the costs of identified mitigation.
II.TRAFFIC MITIGATION FOR THE SUBSEQUENT PHASES OF THE
PROJECT KNOWN AS OLD ARMENIAN TOWN
The City agrees that additional environmental review, including a Traffic Impact
Study,will be conducted for the subsequent phases of the development known as
Old Armenian Town. The required subsequent Traffic Impact Study will be
conducted according to Caltrans'"Guide for the Preparation of Traffic Impact
Studies", dated June 2001. Caltrans shall have full participation, review and
concurrence of the procedures used in the study and to the study's technical
correctness. The City and Agency will in good faith use their best efforts, including
seeking all available funding sources, to implement any mitigation identified,
including but not limited to,widening the "0"Street off-ramp and an auxiliary lane
on State Route 41 from Tulare Street to"0" Street. The City further agrees to
declare for the public record that there will be a subsequent Environmental Impact
Report, with the full participation and review by Caltrans. The subsequent
Environmental Impact Report may identify additional improvements.
HI CALTRANS AGREEMENT
Caltrans agrees that this Agreement constitutes mitigation for the Courthouse
building and parking lot project with the understanding that the City of Fresno will
implement, or cause to be implemented, this Agreement.
D.Alan McCuen, Deputy District Director, Planning Date
California Department of Transportation, District 6
Daniel Hobbs; City Manager Date
City of Fresno
J
niel Fitzpatrick, Di ctor, Redevelopment Agency. Date
City of Fresno
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