The URL can be used to link to this page

Home My WebLink AboutT-4598 - Cashier Memo - 2/10/2010 (3) CD \ (D \ IL ) ) WIN , g » 3 f [ ! _ <Y\ \ § 7 z \ % i\ 3 = ; w c = = w \ \ » q E \ t \ \ \ } / \ » ! o k / A 9 J ! LL \ \ o ; a 4 � . k �\ ƒ \ 4 4 » CL � o z C,4 z it co § ƒ @ § \ 2 ƒ 2 / 2 ] § g q 7 [ 3 3 K § "Y°' MEMORANDUM rn�-= ►`, PLANNING&DEVELOPMENT DEPARTMENT•DEVELOPMENT SERVICES DIVISION-2600 FRESNO STREE-FRESNO,CA 93721 DATE: January 6, 2010 TO: SCOTT MOZIER and MARY BAKER Public Works Department FROM: JONATHAN BARTEL Planning & Development Department SUBJECT: SUBMITTAL OF PAYMENT FOR SATISFACTION OF OPEN SPACE REQUIREMENTS FOR THE FINAL MAPS OF TRACT NOS. 4598, 5188, 5412 AND 5413 THE FOLLOWING ITEMS ARE SUBMITTED FOR PROCESSING: 1. Check in the amount of$ 46,356.76 (First American Trust, FSB No. 3477102786) 2. Copy of City of Fresno Payoff Demand for Tract 5412 3. Copy of Satisfaction of Open Space Requirements for Tracts 4598, 5188, 5412 And 5413 and Release If you have any questions, please contact me at 621-8076. Thank you, Jonathan Bartel Jacque Babbitt From: Scott Mozier Sent: Friday, January 08, 2010 5:43 AM To: Jacque Babbitt Subject: RE: Tract 5412 payment Jacque, The Quimby fund would be the most appropriate place for the funds to be deposited. Please make the deposit and also advise Paul Melikian in PARCS of the history. Thanks Scott From: Jacque Babbitt Sent: Wednesday, January 06, 2010 9:39 AM To: Scott Mozier Cc: Jon Bartel Subject: Tract 5412 payment Scott, Jon Bartel brought up the check from D R Horton in the amount of $46,356.76 as payment for satisfaction of the open space requirements for the final maps of Tracts 4598, 5188, 5412 and 5413. Please advise as to the fund into which the monies are to be deposited. Thank you, Jacque 1 First American Title Company,Santa Ana CHECK NO. 3471102786 PR.06243 Ofc. 3729(3477) Oglbr) E)ATE* 121312009 FILE NO,OSA-3406737 SETTtEMENT DATECHECK AMOUNT.$46,356.76 BUYER: D.R.Horton Los Angeles Holding Company SELLER: Fresno LT Ventures II,LLC Property Address: Lots 56 thru 111,Tract 5412,Fresno,CA Lot: 56-111 Tract: 5412 Am E Funds Due Ras Charge Details: rC City Park in-lieu Fee: Thank you for doing business with First An' can Title Company t a m e T'ilst AnieT[epii Title Conipaity. PR 06243 First American Trust,FSB- 34r-710270 a' c4 5 First Anter ct:rt Gfcry Ofc.3729(34?7) 5 FirstAmerican Way fLsy'7�7 Santa AML CA 92707 90-A12511222 SantaAna. C e� �w (714)2"0-3000 `' Date 1212312 FILE NO.OSA-3406737 , tr ` ♦♦, V ti U1- { � di ➢rte.- �' t �7�'�� f \ I PAY r. x*$46,356.76** DOLLARS $' 46;356,76 x:F4iFxic � i.� Escrow Trust Account t Re: Void after 150 days TO THE City of Fresno Planning and Development Departments ORDER 2600 Fresno Street OF Room 3070 - Fresno,CA 93721-3605 ,mx. 0347710 27860 1: 1 2 2 24 1 2551: 303477000011' Aa, agI5 I�LL,� ° - 5 fj0. ,vL City of Ir'flC.ii':��1►�� Planning and Development Department 2600 Fresno Street, Third Floor John M. Dugan AICP, Director Fresno, California 93721-3604 (559) 621-8001 FAX (559) 498-1012 Jeanne Gould, Sr. Escrow Officer,CEO First American Title Insurance Company Homebuilder Services Division/National Commercial Services 5 First American Way, Santa Ana, Ca 92707 Direct: 714-250-5381 Fax: 714-913-6372 Email:jagould@firstam.com Subject: City of Fresno payoff demand for Tract 5412 Ms. Gould: The City of Fresno submits this demand for payment in the payoff amount of$46,356.76 from the escrow account associated with the sale of Tract 5412 by Fresno LT Ventures II, LLC,to D.R. Horton Los Angeles Holding Company, Inc. There are no other charges, interest, penalties, etc., to be calculated or added/subtracted from the payoff amount of$46,356.76. The payoff amount is to satisfy development requirements of the City of Fresno Roosevelt Community Plan regarding in-lieu fees for the five percent open space area requirement. This payoff demand expires on January 31, 2010. The check should be made to "City of Fresno"and be sent to: City of Fresno, Planning and Development Department Attn. Will Tackett 2600 Fresno Street, Third Floor Fresno, California 93721-3604 (559) 621-8063 FAX (559)498-1012 The buyer and seller are as follows: Fresno LT Ventures 11, LLC (Seller) D.R. Horton Los Angeles Holding 5000 Executive Park Way, Ste. 530 Company, Inc. (Buyer) San Ramon, CA 94583 21300 Victory Blvd., Ste. 700 Woodland Hills, CA 91367 Please contact Will Tackett at 621-8063 if you have any questions on this matter. Sincerely, Jer D. Bisho A sistant Director, Planning and Development c Scott Mosier Jacque Babbitt Alan Kawakami SATISFACTION OF OPEN SPACE REQUIREMENT FOR TRACTS 4598, 5188, 5412 AND 5413 AND RELEASE Tracts 4598, 5188, 5412 and 5413 (collectively "Tracts") are located within the City of Fresno ("City") and subject to the Roosevelt Community Plan. The Roosevelt Community Pian ("Plan") requires at least five percent of the total project area designated and developed for public or private common open space, which may include improvement area provided with approved public or quasi-public open space within 1 1/4 miles of the development, or in the alternative, an equivalent arriount of Funds (also known as "in-lieu" fees) paid to City or to another qualifying public entity as set forth in section 1-17.1 of the Plan as amended. Lafferty GDCI Fresno, LP ("Lafferty") initially owned the T racts and subsequently developed tracts 4598 and 5412. However, the City subsequently determined that Tracts 4598 and 5412 did not meet all of the requirements for offsite open space, and those requirements were added to tracts 5188 and 5413. D.R. Horton Los Angeles Holding Company, Inc. ("DRH") subsequently purchased tracts 5188 and 5413 from Lafferty in November of 2005. At the time of the purchase Lafferty agreed to satisfy any required open space requirements for the Tracts, and DRH agreed tract 5413's open space could be used to offset the five percent open space requirement on all Tracts, including a portion of tract 5412. Lafferty subsequently lost all of the lots in tracts 4598 and 56 lots in tract 5412 through foreclosure. Fresno LT Ventures II, LLC ("Ventures") purchased all the foreclosed property, including any receivables, from the bank that foreclosed on the former Lafferty property. DRH and Ventures are currently, as of the date hereof, parties to that certain Purchase and Sale Agreement and Escrow Instructions dated as of November 11, 2009 pursuant to which DRH intends to purchase Tract 5412 ("Tract 5412 Purchase Transaction"). The City has determined the total amount of eligible open space areas provided by the Tracts total 2.85 acres, representing a shortfall of 1.05 acres of the required 3.90 acres based on the five percent open space area requirement under the Plan. Pursuant to the provisions of the Plan, the in-lieu value of the 1.05 acres (includes applicable credits for the eligible acreage) is $104,356.76 (the "In-Lieu Fee") if paid to City by no later than January 31, 2010. Lafferty, Ventures and DRH do not dispute the shortfall of 1.05 acres for the Tracts based on the five percent open space area requirement, nor do they dispute the in-lieu value is $104,356.76. Ventures hereby agrees as its sole obligation as between Lafferty and DRH and at its sole cost and expense, to pay the In-Lieu Fee to the City concurrently with the closing of the Tract 5412 Purchase Transaction which closing is anticipated to occur on or about December 22, 2009. In furtherance of the foregoing obligation to pay the In-Lieu Fee, Lafferty previously provided City with two deposits of $25,000 and $33,000 toward the five percent open space area requirement ("Lafferty Deposits"). City has agreed to credit the Lafferty Deposits for the benefit of Ventures against the $104,356.76 In-Lieu Fee obligation and the City will accept payment in the remaining amount of $46,356.76 to satisfy the in-lieu value of the 1.05 acre shortfall. Upon prompt receipt by City of payment in full as set forth in the immediately preceding sentence, along with this executed instrument, City will consider the Final Maps of the 734799.02/so 142921-00008/12-18-09/sws/ldf Tracts as having fully satisfied the Plan's five percent open space requirements. Ventures and DRH acknowledge the full satisfaction of the Plan's five percent open space requirement does not satisfy other obligations associated with the Tracts including any unsatisfied impact fees which may be imposed at the time of development of such lots. Ventures hereby agrees to defend, indemnify and hold harmless City and DRH as to all actions, demands, proceedings, disputes or claims arising from payment of the In-Lieu Fee to City, including the portion thereof comprised of the Lafferty Deposits. In the event any portion of the Lafferty Deposits becomes invalid, uncollectable or must be remitted by City to comply with a court order, judgment or as required by law, Ventures agrees to promptly provide City payment of replacement funds in a like amount upon demand by City. Subject to the City's representation in its December 18, 2009 letter to Ventures and DRH, a copy of which is attached hereto as Exhibit A, regarding satisfaction of the Plan's five percent project open space requirement, Ventures, Lafferty and DRH hereby release the City from all claims, actions, causes of action, demands, rights, damages, costs, attorney's fees, loss of service, expenses and compensation whatsoever, as limited to and arising from the five percent open space area requirement or equivalent in-lieu fees required by the Plan for the Tracts only. As to the release provided herein, it is further understood and agreed all rights under Section 1542 of the Civil Code of California and any similar law of any state or territory of the United States are hereby expressly waived by the undersigned as to the City and as limited to and arising from the five percent open space area requirement or equivalent in-lieu fees required by the Plan for the Tracts only. Said section reads as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor." City is expressly made a third-party beneficiary to this Satisfaction Of Open Space Requirement For Tracts 4598, 5188, 5412 And 5413 And Release ("Agreement"), with the right to enforce this agreement by any legal or equitable means. In any action, proceeding or dispute with City arising from the terms of this Agreement, the prevailing party to that action, proceeding or dispute shall be entitled to recover, in addition to any other relief that may be granted, all costs and attorney's fees incurred. Further, any action, proceeding or dispute arising from the terms of this Agreement shall be governed by the laws of the State of California, and jurisdiction and venue shall rest with the Superior Court for the County of Fresno. This Agreement may be executed in any number of counterparts, each of which may be deemed an original and all of which together shall constitute a single instrument, and signatures hereto shall be deemed original whether copied or transmitted by fax, email or other electronic means. Each party to sign shall be bound by this Agreement regardless whether the other party executes this instrument. [SIGNATURE PAGES TO FOLLOW ON NEXT PAGE] 734799.02/sD 142921-00008112-18-09/sws/Idf -2- This Agreement shall be effective December 18, 2009. THE UNDERSIGNED HAVE READ THE FOREGOING AND FULLY UNDERSTANDS IT. Fresno LT Ventures II, LLC D.R. Horton Los Angeles Holding A California Limited Liability Company Company, Inc. A California Corporation By: By: slie Lafferty, anage Michael Hoolihan, Vice President Lafferty GDCI Fresno, LP A California Limited partnership By:Lafferty/L stle LLC, its Managing MemberS�� ¢A S. afferty, Manager 1 �®!'� * Signature must be notarized K vv v 734799.02/SD 142921-00008/12-18-09/swsAdr -3- CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of S On M(JK�SH TEL I�C C �I �U<�q before me, Date Here Insert Name and Title of the Officer personally appeared Ler o c- L A F'F CR ' / 4D !R I ChAP-12 5 • (A F FGIZTy Name(s)of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)jai/are subscribed to the within instrument and acknowledged to me that Hefs�/they executed the same in hi&A /their authorized capacity(ies), and that by.h+~their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws MUKESH P. PATE1 of the State of California that the foregoing paragraph is Ott COMM.# 1842122 'n true and correct. v, "! NOTARY PUBLIC-CALIFORNIA u+ ' CONTRA COSTA COUNTY MY COMM.EXP,APR.23,2013 WITNESS my hand and official seal. ��` U Signature Xt ° "�, Place Notary Seal Above Signature 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 Docu ent p p Title or Type of Document: ' ' as Cir OPG ae[e � yi'y �a Sf �4S ffi 51 8-, .�9-(i c • 5413 c cs—r Document Date: 1)C C oQ! dGYJ 9 Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s)L Signer's Name: LES Q& A EP c Rr)' Signer's Name: C fAR Q S LAV F P-ry ❑ Individual ❑ Individual ❑ Corporate Officer—Title(s): ❑Corporate Officer—Title(s): ❑ Partner—❑ Limited ❑General _ ❑ Partner—❑ Limited ❑ General ❑ Attorney in Fact ❑Attorney in Fact • Top of thumb here To_p f th4jTb here D Trustee ❑Trustee ❑ Guardian or Conservator ❑Guardian or Conservator �. (9, Other: M OVI it yf ti �Other: l>7cw. 1� Signer Is Representing: Signer Is Representing: ®2007 National Notary Association•9350 De Soto Ave.,P.O.Box 2402•Chatsworth,CA 91313-2402•www.NaUonalNotaryorg Item#5907 Reorder:Call Toll-Free 1-800-876.6827 This Agreement shall be effective December 18, 2009. THE UNDERSIGNED HAVE READ THE FOREGOING AND FULLY UNDERSTANDS IT. Fresno LT Ventures II, LLC D.R. Horton Los Angeles Holding A California Limited Liability Company Company, Inc. A California or oratio i By: * gy; , . Leslie Lafferty, Manager Michael Hoolihan, Vice President Lafferty GDCI Fresno, LP A California Limited partnership By:Lafferty/Landcastle LLC, its Managing Member By: Richard S. Lafferty, Manager * Signature must be notarized 734799.02/SD 142921-00008/12-18-09/swsAdf -3- ACKNOWLEDGMENT State of California ) County of Los Angeles On December 18, 2009, before me, M, 2 �( serf nam of notary) Notary Public, personally appeared ( � (� I avl , who proved to me on the basis of satisfactory evidence to be the person) whose name ) is/ares subscribed to the within instrument and acknowledged to me that he/s executed the same in his/heath-eir authorized capacity(ies), and that by his/her/their signature(g) on the instrument the person}, or the entity upon behalf of which the persocted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS nd fficial seal. Signature (Seal) t ,ra .A� „ems ACKNOWLEDGMENT �:;', VANESSA A. RODRIGUEZ „ b Cornmisslon # 1791520 z `c�a Notary Public - California D State of California ) tl � , Ventura County County of Fresno ) { Con m.Expires Mar 2,2012 On December 18, 2009, before me, (insert name of notary) Notary Public, personally appeared who 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 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. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) 734799.02/SD 142921-00008/12-18-09/sws/ldf -4- EXHIBIT A LETTER TO VENTURES AND DRH 734799.02/sD 142921-00008/12-18-09/swsAdf -6- Cily of gg rRF+rte Planning and Development Department 2600 Fresno Street,Third Floor John M.Dugan AICP,Director Fresno,California 93721-3604 (559)621-8001 FAX(559)498-1012 December 18,2009 Fresno LT Ventures II,LLC P.R.Horton Los Angeles Holding Company,Inc. Attn:Leslie Lafferty,Manager Attn:Keltie Brautovich 5000 Executive Park Way,Ste.5300 21300 Victory Blvd.,Ste.700 San Ramon,CA 94583 Woodland Hills,CA 91367 Subject: Satisfaction of Open Space Area Requirement,(Revised)Satisfaction And Release Final Maps of T-4598,T-5412,T-5413 and T-5188, Gentlepersons: Subsequent to the review of the open space areas provided on the Final Maps of T-4596,T-5412,T-5413 and T- 5188(collectively"Tracts")by Larry Braun,the City has determined that the total amount of eligible open space areas provided by the four maps total 2.85 acres. This amount represents a shortfall of 1.05 acres of the required 3.90 acres based on the 5%open space area requirement under the Roosevelt Community Plan. Pursuant to the provisions of the Roosevelt Community Plan,the in-lieu value of the 1.05 acres,including applicable credits for the eligible acreage,is$104,356.76. Lafferty G DCI Fresno,LP('Lafferty')previously provided City with two deposits of$25,000 and$33,000 toward the five percent open space area requirement("Lafferty Deposits"). Crediting the Lafferty Deposits against the $104,356.76 obligation,the City will accept payment in the remaining amount of$46,356.76 to satisfy the In-lieu value of the 1.05 acre shortfall. This in-lieu value Is subject to increase if payment in full is not received by January 31,2010. Upon prompt receipt of payment in full,afong with an executed copy of the attached(revised)"Satisfaction Of Open Space Requirement For Tracts 4598,5188,5412 And 5413 And Release,'the City will consider the Final Maps of the Tracts as having fully satisfied the Roosevelt Community Plan's five percent open space requirements. The full satisfaction of the Plan's five percent open space requirement does not satisfy other obiigations associated with the Tracts including any unsatisfied impact fees which may be imposed at the time of development of such lots. Please contact Will Tackett at 621-8063 if you have any questions on this matter. Sincerely, /As .Bis opt, / tant Direcr,Planning and Development ccott Mosier Jacque Babbitt Alan Kawakami Enclosure: Satisfaction of Open Space Requirement for Tracts 4598,5188,5412&5413 and Release City of Fresno Payoff Demand for Tract 5412 734799.02/SD 142921-00008112-18-09/swsAdf -7-