HomeMy WebLinkAboutCopper River Development Company - Agreement for the transfer of reclamation faility and disposal of effluent and adoption of amendment to the annual appropriatino resolutionFREMMwop��'yy���y\I/A�
IM REPORT TO THE CITY COUNCIL 'AGENDAITEMNO. 7=/5 4*ZC
COUNCIL MEETING 107JO8
ao oav
November 18, 2008
Dsana.aea.a
FROM: RENSA.Z. Director
L.YA• rmNuusaa
Departmentnt of of PuPUEIie Utilities(ea
BY: STEPHEN A. HOGG, Assistant Director
Department of Public Utilities, Wastewater Management Division
SUBJECT: AGREEMENTS FOR THE TRANSFER OF RECLAMATION FACILITY AND DISPOSAL OF
EFFLUENT AND ADOPTION OF AMENDMENT TO THE ANNUAL APPROPRIATION
RESOLUTION (COUNCIL DISTRICT N0.6)
1. AUTHORIZE DIRECTOR OF DEPARTMENT OF PUBLIC UTILITIES TO NEGOTIATE
AND ENTER INTO AGREEMENT WITH COPPER RIVER DEVELOPMENT COMPANY,
INC. ("DEVELOPER") FOR THE TRANSFER TO THE CITY OF FRESNO ('CITY") OF
THE NORTH FRESNO WASTEWATER RECLAMATION FACILITY ("NFWRF),
INCLUDING REIMBURSEMENT OF DEVELOPER IN THE AMOUNT OF $3,628.221-00
FOR PAYMENT OF EXCESS IMPACT FEES AND FOR THE CONSTRUCTION OF
EXPANSION CAPACITY IN THE NFWRF
2, AUTHORIZE DIRECTOR OF DEPARTMENT OF PUBLIC UTILITIES TO NEGOTIATE
AND ENTER INTO AGREEMENT WITH CONSOLIDATED LAND COMPANY AND
CONSOLIDATED INDUSTRIES. INC. FOR THE DISPOSAL OF TREATED
WASTEWATER EFFLUENT ON THE COPPER RIVER COUNTRY CLUB GOLF
COURSE ("GOLF COURSE-), INCLUDING REIMBURSEMENT IN THE AMOUNT OF
$252,000.00 FOR PREVIOUSLY INCURRED OPERATING EXPENSES IN
PREPARATION FOR RECEIVING DISPOSAL OF EFFLUENT
3. ADOPT THE 48TH AMENDMENT TO THE ANNUAL APPROPRIATION RESOLUTION
(OAR) NO. 2008-162 APPROPRIATING $3,880,200.00 FOR REIMBURSEMENT OF
CONSTRUCTION COSTS OF THE NORTH FRESNO WASTEWATER RECLAMATION
FACILITY AND OPERATING COSTS OF DISPOSAL OF TREATED WASTEWATER
EFFLUENT
KEY RESULT AREA vnmrofmuhuweu
m. u
One Fresno auwvuon Amy
RECOMMENDATIONS
Safi recommends the City Council:
1. Approve an agreement with Copper River Development Company. Inc. for the transfer Is the
the NFW RF including reimbursement to the developer in the amount of $3,628,221 00 for pay
MAYOR'S VETO
iEPORT TO THE CITY COUNCIL
1ppmve Agreements with Copper River, Adopt 46v Amendment WMR
dovamb0r 18; 20011
gage 2
excess impact fees and construction of capacity expansion Improvements In the NFWRF and
authorizing the City Manager, or desgnse, to execute the same.
2. Approve an agreement with Consolidated Land Company and Consolidated Industries, Inc. for the
disposal of treated wastewater effluent (to be used as landscape irogation) on Me Copper River
Country Club golf course including reimbursement in the amount of $252,000.00 for ko years of
operations and maintenance (Ol expenses in preparation for mrsiving OTE.
3. Adopt the 48th amendment to the Annual Appropriation Resolution (MR) No. 2008-162 to
appropriate funds for reimbursements to me Developer and Me Golf Course.
EXECUTIVE SUMMARY
Re Copper River Development Company Inc. has commenced the development of approximately 760 acres
3ene-ally known as Copper River Renck. At full buildout, Me ended is expected da generate up to 0]1
million gallons per day ('MGD') of wastewaleq which will be treated, disinfected and reused. Pursuant to the
Ocidhions of Approval and the terms of the Master Canal Use Permit, the Developer constructed the
NPNRF with a treatment rapacity of 0 7 MGD. The 0]1 MGD of treatment and disposal capacity Is sufficient
to treat wastewater flows from the Project The Developer also constructed Ne NFWRF to serve
approximately 500 additional EDUs for properres and potential developmentsthat could bas integrated imoAvilh
Me Project or a total of 0.83 MGD. At the Citys request, the Developer designed and constructed the NFWRF
d readily accommodate expansion from to 0.83 MGD treatment capacity to a planned build out treatment
capacity of 1.25 MGD. The additional 0.42 MGD treatment capacity Is Intended to serve existing development
South of Capper Avenue already connected to the 181 mahon and the remaining development In the area North
of Copper Avenue, not included in the Project.
The Project surmunds Me existing Copper River Country Club that Includes an 18 -hole championship golf
course_ The Developer will complete disposal facilities on the Golf Course and they will be made available to
Mas City for its use In connection with the operation of the NPNRF. Up to 0 71 MGD of treated effluent from the
NFWRF will be delivered to the Golf Course. The Waste Discharge Requirements Issued by the State of
California for the operation of the facility Introduce irrigation of the Gott Course As ttie primary means of
disposal for the DTE and staff negotiated an agreement with Consolidated Land Company And Consolidated
Industries, Inc. to accommodate the use of the Golf Course for effluent reuse, including reimbursement i0 the
amount of $252,000.00 for two years operating and maintenance experts" in preparation for receiving DTE
based on a mutually agreed rate of $10,500 per month.
The Developer will transfer the NFWRF to the City and the City agrees to assure Oeveloper's Reserved
Capacity of up to 0.83 MGD of treabnent and disposal capacity, In the form of a "Will Serve' [offer which shall
be useable any mem within Me Project Area. The City will provide a reimbursement to the Developer for a
portion of the previously paid sewer connection and wastewater facllity related fees and costs incurred for
previsions for expansion capacity beyond 0.83 MGD, The City will make a one-time payment to the Oxidic
in the amount of $3,628,221 W as reimbursement for the construction of Improvements allowing rapacity
expansion of the facility and excess impact fees paid by the Developer Funds for the reimbursement are
available in the Copper Avenue Sewer Lift Station, Wastewater Correction Fee and Herndon Sewer Trunk
funds. These funds consist of impact fees collected for the construction of infrastructure tocalled and treat
wastewater generated by new development In this area. Aral by Council of the 48th amendment to the
Annual Appmpdation Resolution (MR) No. 2008-162 is necessary to appropriate funds for Me Developer
reimbursement and reimbursement to the Golf Course.
REPORT TO THE CITY COUNCIL
1ppmve Agreements with Copper over: Adapt 4Be Amendment to MR
4ovember 18, 2008
'aHe 3
.1 :4711,10141319 l9492LcL•L
lheee Agreements balances Ne three Key Objectives of Customer Satisfaction, Employee Satisfaction and
Mandal Management. Customer Satisfaction will be enhanced by the Department's ability to provide the
nmastruclure necessary for the treatment of wastewater generated in Me Northeast portion of the community
and disposal of the treated effluent in a sustainable and environmentally appropriate manner. Employee
Satisfaction is opdved through supplying staff with Me unit processes may need to provide the core service
vith which May are tasked. Financial Management is met by providing a cast effective means of sewrirg the
lecessary, wastewater treatment capacity for an area that previously had no wastewater collection or beaMenl
nmastmcture.
=-TtIXO 019:L
Una Copper River Development Company Inc. has commenced the development of approximately 760 acres
generally known as Copper River Ranch, located between Friend Road Willow Avenue, Copper Avenue, and
he alignment of Site= Avenue ('Pmjecf). The Project Is presently approved to incude 2837 houses and
mull -family residences and approximately 60 acres of mdedus r commercial development at full build out. At
full budd-oob the Project Is expected to generate up to 0.71 MGD of wastewater, which will be treated,
tlisinfected and reused. A sanitary sewer lift station located an the north side of Copper Avenue, east of North
Cedar Avenue, was also built primarily to serve development activity south of Copper Avenue in accordance
wilh previously approved subdivision maps and the Citys General Fan land uses. Included In the lift stations
design was Interim capacity for an Initial 500 equivalent dwelling units (EDUs) within Me Project. The following
conditions are requiretl of the Developer in order to provide sewer service to the Project
• The developer may utilize Me City a lift station and force sewer main for sewage discharge tram the first
500 constructed EDUs.
• The developer is required to design and concoct an on-site tertiary wastewater treatment facility
acceptable to the City of Fresno, for which constructed shall be completed pnor to construction of Me
501 EOU. Once constructed, all flow from Me Project shall be directed to me tertiary wastewater
treatment facility.
• The City will accommodate permanent sludge discharged more the planned trowel facility to the City
Sewer System. The developer shall construct and/or pay for all facilities necessary to accommodate
me impact of connection to the City sewer system and associated wastewater treatment.
Pursuant to these Conditions of Appmwd and the terms of the Mester Conditional Use Permit, Me Developer
spectral the NFWRF. The Developer secured through on-site and off-site facilities and legal rights a
disposal capacity of 0.71 Ml Although Me 0.71 MGD of treatment and dispose capacity is sufficient to treat
wastewater flows from me Project me Developer also constructed the NFWRF to be able to serve
approximately 500 additional EDUs for properties and pore dial developments that could be integrated intolwim
the Project. These shal nal 500 EDUs require the NFIMRF to be able to treat and dispose of 0.83 MGD. At
the City's request the Developer designed and constructed me NPAPF to readily accommodate expansion
from me 0 A3 MGD treatment capacity to a planned bold out treatment capacity of 1.25 Ml The addlill
0.42 MGD treatment rapacity Is Intended to serve existing development South of Copper Avenue already
connected to the lift station and me remaining development in the area North of Copper Avenue, not included
In the Project. The Developer, with the City's cooperation, obtained! all necessary regulatory as well as, land
Use, permits to construct and operate Me NFW RF for up to 0.71 111 of wastewater.
REPORT TO THE CfTY COUNCIL
Approve Agreements with Capper Raver', Adopt W Amendment to PAR
November IS 2000
Page 4
The Project surrounds the existing Copper River. Country Club that includes an 18 -hole championship few
caul clubhouse, tennis complex and odrer amenities. Facilities for Me disposal of 0.71 MGD of disinfected
heated effluent (DTE) from me NFWRF have been partially Installed on the Goff Course at the expense of the
Developer. The Developer will complete these disposal facilifies and they will be made available W the City for
Its use in connection with the operation of the NFAIRF. Up to 0.71 MGD of treated effluent from the NFWRF
The NFWRF will discharge treated solids to the CM sewer collection system, which all he conveyed to the
Cl" Regional Wastewater Reclamation Facility for further treatment and disposal. The City will recover the
reasonable cost associated with treatment and disposal of Me heated solids.
Developer has previously paid sewer connection and various wastewater facility fees (i.e., development impact
fees) that were principally based upon adopted City fees and on expected volume and nature of wastewater
geoereted by Me Project Wastewater from the Project will be treated by the NFWRF and disposed of on the
Golf Course, with only the treated solids being conveyed to the a" collection system and City's Regional
Wastewater Reclamation Facility. Wastewater from to developments in the Project will have a Significantly
decreased volume when compared to the average wastewater delivered from similar development in the City
outside of the Project_ Therefore, the CM will provide a reimbursement to Me Developer for a potion of the
previously paid sewer connection and wastewater facility related fees. Additionally, it is necessary for the City
to calculate a development impact fee for development in the Project for City wastewater facilities (including
Me collection system and the City a Regional Wastewater Reclamation Facility) that takes into account the
reduced volumes from the Project. This fee is different from the current adopted City development impact fees
for Me City s wastewater treatment facilmes. The agreement with the Developer establishes the appropriate
reimbursement to be provided to the Developer and the appropriate developmentimpact fee to be paid by the
Developer to the City for the remaining undeveloped portions of the Project. In the future staff will return before
Council with a recommendation for a new wastewater facility fee specific to the Project Area.
The City and the Developer desire that the City acquire ownership of, operate, and manage the NFWRF. As
such the agreement with the Developer provides for the fallowing'.
1. Transfers the NFWRF to the City, including but not limited b, the Subject Property, all wastewater
treatment equipment, all Improvements and facilities located on the Subject Property, all appurtenant
easements and rights, free of all liens and encumbrances.
2 Compensates the Developer for costs Incurred for provisions for expansion capacity beyond 0 83 MGD.
3. Provide assurances to the Developer that Developer's Reserved Capacity will be available when
needed as necessary to provide wastewater service to the Project.
4. Provides assurences to the Developer that development in the Project Area will not be subject to
additional fees for providing up to 0.83 MGD of treatment and disposal capacity to serve Full Build Out
of the Project. The City agrees to assure Developer's Reserved Capacity of up to 0.83 MGD of
treatment and disposal capacity, in the form of a "Will Serve' letter which shall be useable anywhere
woman the Project Area.
i Provides reimbursement to the Developer for a portion of the previously paid sewer connection and
wastewater factllty related fees.
6. Establishes the wastewater facility fee obligations for bre Project as a result of the reduced discharge to
the City sewer system and Regional Wastewater Reclamation Facility.
7. Except for approved developments for which the Developer has previously paid sewer connection and
various wastewater facility fees, the Developer shall be responsible at time of pulling building permits to
pay a mortified City wastewater facility fee of $657.50 per EDU for any new development within the
Project Area.
REPORT TO THE CITY COUNCIL
Approve Agreements with Copper (liver. Adapt 4e Amendment to AAR
November 18, 2008
Pegs 5
City will make a one-time payment to the Developer in the amount of $3,828,221.00 as reimbursement for:
construction of improvements allowing Expansion Capacity in the amount of $2,743,971 00 and (b) exce
Impact toes Paio by the Developer in the amount of $884,250.00. Funs for Me reimbursement are available
the Capper Avenue Sewer Lit Station, Wastewater Connection Fee and Herndon Sewer Trunk funs. The
funds consist of impact fees collected for the construction of infrastructure to collect and treat wastewa
generated by new development In this area. Adoption by Council of the 48th amendment to the Anne
Appropriagon Resolution (MR) No. 2008-162 Is necessary to appropriate funds for the Developer and G
Course reimbursements.
DTE from Me NFWRF must be disposed of in an environmentally responsible manner. The Waste 1151
Requirements Issued by the state of California for Me operation of Me facility indentures irtigatbn of Me G
Course as Me primary means of disposal for the DTE. This disposal credited provides practical means
recycling wastewater generated by the Project and assist in maintaining the balance of water resources in I
area. Staff negotiated an agreement with Consolidated Land Company And Consolidated Incurred Inc.
accommodate the use of the Golf Course for effluent reuse. The terms of the agreement include:
1. The tight of Me City to require the Goff Course to reuse DTE from Me heatrnent facility up to I
agronomic rata of the turf and lanscapirg, but not in excess of 0.71 MGD.
2. The Golf Course has the right to call for DTE at no cost up to 0.71 MGD.
3. The City will reimburse Me Goff Course for expenses Incurred in the amount of $252,000.00 or r
years (2008-2009) of operating and maintenance expanses in preparation for receiving disposal
effluent.
4. The City will reimburse the Golf Course for years 2010 an beyond Me actual cost associated with t
Club'a acceptance and use of DTE for irrigation purposes, pursuant to the NPDES Permit.
FISCAL IMPACT
See attached Fiscal Impact Statement.
Additional fiscal impacts of these agreements will equate to the operation and maintenance costs of t
trestrant facility and the cost of effluent dispose l consistent with the terms of the disposal agreement. T
actual costs will be determined though actual operating experience and will be funded though Sewer U:
Fees.
AtlaCnmot5:
Fiawl Impact Statement
PAR tral 162
FISCAL IMPACT STATEMENT
PROGRAM:
Net City Cost $3,880,200.0
Amount Budgeted
(If none budgeted,
identify source) $3.880.200.00`
ANNUALIZED
COST
'Fund 40502 Wastewater Connection Fee Fund $2,900,900.00
'Fund 40593 Copper Avenue Sewer Lift Station Fund $76,00.00
'Fund 40515 Hemdon Sewer Trunk Fund $650,700.00
*Fund 40512 Sewer Enterprise Operating Rate Stabilization $252,000.00
TOTAL OR
RECOMMENDATION
CURRENT
Direct Cost
$388020000
Inclined Cost
$ 000
TOTAL COST
$ 3.880 200 00
Additional
Revenue or Savings
Generated
$ 000
Net City Cost $3,880,200.0
Amount Budgeted
(If none budgeted,
identify source) $3.880.200.00`
ANNUALIZED
COST
'Fund 40502 Wastewater Connection Fee Fund $2,900,900.00
'Fund 40593 Copper Avenue Sewer Lift Station Fund $76,00.00
'Fund 40515 Hemdon Sewer Trunk Fund $650,700.00
*Fund 40512 Sewer Enterprise Operating Rate Stabilization $252,000.00
cnvarrnesaO
On eFrce onus 010A
TRANSFER AGREEMENT
Rv and between
ME CITY OF FRESNO,
a municipal corporation
and
COPPER RIVER DEV ECOPNIENT COMPANY, INC.,
a CaRfornia Corporation.
ansa. _
4/: k
This Transfer Agreement ("Agreement") is entered Into as of the Effective Date (defined in
Section 1 below), between the City of Fresno, a municipal corporation (the "City") and
Copper River Development Company, Inc., a California corporation ("Developer"). for the
transfer and acquisition of the North Fresno Reclamation Plant (`W WfF") from Developer
to the City.
RECITALS
A. City is a municipal corporation with land use audmnty and responsibility for providing
public utilities, including wastewater service, to We citizens of the. City of Fresno.
B. Pursuant to City approvals,including, but net limited to, Master Conditional Use Permit
No. C-04-153 (Me "Master CU71, Vesting Tract Map No. 5205 ("Tract Map") and Conditional
Use Permit No. C-05-247 ("CUP'), the Developer has commenced development of community
development of approximately 760 acres more particularly described in Ealll A. generally
known as Copper River Ranch, located between Friant Road, Willow Avenue, Copper Avenue,
and the alignment of Steen Avenue (the "Pmject" ). Pursuant to the terms of the Master CUP, the
Pmject is presently approved to include 2,537 houses and multi-family residences and
approximately 60 acres ofmixed-use commercial development at PoII build out. At full build-out,
the Pmject is expected to generate up to 0.71 million gallons per day ("MGD") ofwastewaler,
which wdl be treated, dlsmil ted and reused.
C. The conditions of approval for the Tract Map and me CUP ("Conditions of Approval")
include the following conditions relevant to wastewater service:
66..4 recently constructed sanitary sewer lift station is located on the north
side of Copper Avenue east of North Cedar Avenue built primarily to serve
development activity south of Copper Avenue in accordance with previously
approved subdivision maps and the City's General Plan land uses. Included
in the lift stations design is capacity for an radial 500 Equivalent Dwelling
Units (EDU) within the Copper River Ranch (CRR) project based upon the
assumptions and conditions as outlined in a tarter from the City of Fremo
dated November 14. 2001, anached.
67. The following conditions shall be required to provide sewer service to
the project.
68. The developer may utilize the City's lift station and fame sewer main for
sewage discharge Som the Coal 500 canameed ®U.
69. The developer is required to design and construct an on-site lemony
wastewater treatment facility accepmble to the City of Fremo, for which
construction shall be completed prior to construction of the 501 [equivalent
dwelling unit]. Once constructed, all Flow firm CRR shall be directed to the
terearywaslewaterveannentfncmtr. The City will accommodate permanent
sludge discharged from the planed CRR tmamem facility to the City Sewer
System
70. The developer shall Muco et and/or pay For all facilities necessary to
accommodate me impact of connection to die City sewer system and
associated wastewater trearrini
7L Proposed methods and paints of connection to the City Sewer Svstem
shall he submined for review and subject to Department of Public Uuliues
approval.
72. Sanitary sewer facilities to be constructed shall conform to City of
Fresno Standards.
73. A Preliminary sewer design layout shall be submitted including sewer
flow contribution calculations for the entire project site for review said
subject to Department of Public Utillties .approval prior to submitting
engineered improvement plans for City approval.
74. Bath parties shall approve equitable impact fees and monthly user
charges prior to connecting to the City Sewer system. Effluent discharge
from CRR wastewater treatment plant into the City system shall be mctemd.
D. Putman to item No. 69 of the Conditions of Approval and the terms ofthe Mosher CUP.
the Devcioper conswcled a wastewater treamamt facility (the "W WTF") as a desigmbuild project
according to conceptual plans and spedficamns reviewed by the City. The W WTF was built
su icienttopmvide D.63MGDofwwewaterveatmmtupecity The Developersecured
through on-site and off-site facilities and legal rights a disposal capacity of 0.71 MGD. Although
the 0]I MGD of treatment and disposal capacity is sufficient to treat the Project at full build out
of 3,182 equivalent dwelling units ("EDW), the Developer alsodesired the W WTF to be able to
sme an additional approximate 500 EDUs for Properties and potential developments that could be
integrated into/with the Project, This additional 500 EDUs along with the Project's 3,182 EDUs
requirm the W WTE m be able to treat and dispose of0.83 MGD. Far purposes of this
Agreamen4 "Full Build Out of the Project" shall mean a development that Names to 3,682
"Us as determined by the Director of the Public 0tWties DepartmeuL For purposes of this
Agrmmen4 "Project Area" shall mean that area designated by the Developer on the Map in
Exhibit B where the development of the Project and property that will accommodate the
additional 50 EDUs intended to be built. For purposes of this Agreement, "Developer's
Reserved Capacity" shall mean a capacity to treat and dispose of 0.83 MGD of wastewater.
E. At City's request, Developer designed and constructed me WWTF to readily accommodate
expansion from the 0 83 MGD treatment capacity to a planned build out treatment capacity of 1.25
MGD, coatis an additional .42 MGD treatment capacity ("Expansion Capacity ) finer the
DevelcpePs Reserved Capacity of 0.63 MGD..
F. Subject to the limitations set forth in this Agreement, me Expansion Capacity will be used
by me City to service other development in the area, including (1) future planned development
lying north of Copper; and (2) 764 existing residences soldh of Copper Avenue,
G. Lb, Project surrounds the existing Copper River Country Club (the "Country Club") that
includes au 18 -hale championship golfcourse ("Golf Course"), clubhouse, terms complex and
other amenities. Facilities for the disposal of 0]I MGD ofdisinfectol treated effluent ('UTC" or
"firmild Effluent") Rom the WWTF have bean partially installed on the Golf Course by and at
expense of the Developer. no Developer intends to cause the complet1011 of These facilities
pursuant to this Agreement. Those disposal facilities; will he constructed and made available by
the Developer to the City for its use in connection with The operation of the WWTF pursrm to the
fumes in this Agreement.
11, The WWTF is located on approximately 3.32 acres of real Property( Subject PRE(al))
on the nor side of Copper Avenue just west of Maple Avenue as more particularly described in
Exhibit C. The Developer is the owner of the Subject Property, together with all tights,
privileges, easements and app rrtenrces; and all equipment and fixtures related to the WWTF
located on the Subject Property. The Subject Property also includes the DTF Pipeline Easement,
the DTE License .Agreement described below and the DTE Easement Agreement dated Februay
4, 2005, and recorded on February 8, 2007, as Document No. 2005-0029764, in the Official
Records of Fresno County, California (the "DTE Disposal Easement").
1. Developer, with the City's computation, has Obtained all necessary reptlatory, as well as.
land use, permits to construct and operate the WWTF (collectively the "WWTF Permits") to treat
and reuse r7l MGD of wastewater. The WWTF Permits include, but are not limited m, a
Wastewater Reclamation Permit from the Cali humin Department of Health Services ("DHS") and
the Waste Discharge Requirements (the "WDR') firm the Cali forma Regional Water Quality
Control Board ("Regional Board'). Additional permits and/or amendments to the existing WWTF
Permits are necmsary to treat rd dispose. of wastewater at the WWTF in excess of 0]1 MGD.
I Treated Effluent m an amount of up to 0J1 MGD from the WWTF shall be delivered to
the custody of the Country Club at the boundary of the GmIfC'ourse through a pipeline installed in
(1) the public right of way for East Copper Avenue, (2) the pipeline easement described in the
Deed of Easement dated April 12. 2007, recorded on May S. 2007, as Document No. 2007-
OR)1885, in the Official Records and (3) the pipeline to scram described in the Decd Of Easement
dated October 30, 2007, recorded on hoary 30. 200& as Document No. 2008 -Ml 3703, in the
Official Records (collectively the "Pipeline Easement").
K. From die bouodarv, of the Get 'Course, such portion of the D'rE will continue to Row
through a pipeline and be discharged into the custody mid control of Counts Club at an irrigation
station inlet box or "manifold" located on the Golf Course: for application and disposal via the golf
course inigation system (collectively On Course DTE Delivery Faciline;' ). The On Course DTE
Delivery Facilities are owned by the Country Club and located on elm Golf Course. The Country
Club has granted Developer an exclusive, assignable, perpetual license to use the portion On
Course DTE Delivery Facilities necessary to transition the Treated Effluent from die boundary of
The Golf Course t0 the custody of the Country Club at the station inlet box as set forth in the DTE
License Agreement dated November 20, 2008, and recorded on November 24, 2008, as Document
No 2008-0162923- in the Official Records C'DTE Delivery License").
L. Distribution and application Of DTE Rum de point of discharge Ox.. the int&hon station
inlet box referenced above) will be via the Golf Course irrigation systems for application to tho
Golf Course and areas adjacent to the Golf Course pursuant to the terms of sepamm agreement
entered into between the City and the Country Club in the form of Exhibit F( the "Effluent
Disposal and Delivery Agretmmt" ).
M. The WWTF will discharge treated sludge("Treated Sludge") to the City sewer collection
system, which will be conveyed to the City's Regional Wastewater Reclamation Facility for
further treatment and disposal. The City wishes to recover the reasonable cost associated with
treatment and disposal of the Treated Sludge.
N. Developer and/or legal entities established by or affiliated with Developer in whole or in
pan, have previously paid sewer connection and various wastewater facility fees il.e
development impact fees) as described in Exhibit G Nat were principally based upon adopted
City fees and on expected volume and nature of wastewater generated by the Project. Said
wastewater will be treated by the WWTF and parially disposed Mon the Golf Course before
being conveyed to the City's collection system Rod City's Regional Wastewater Reclamation
Facility. Therefore, wasteww or from the developments in the Project is expected to have
significantly decreased volume when compared to the average wastewater delivered from similar
development in the City outside of the Projxt. no Treated Sludge to be discharged into the
City's rejection system and ultimately conveyed to the City's Regional Wastewater Reclamation
Facility is expected to be greatly reduced in volume from Nat typically released by the average
dwelling unit in the City outside of the Pmject. Therefore, Ne City will provide;reimainament
to the Developer for a portion of the previously paid sewer connection and wastewater facility
related fees. Additionally, it is necessary for the City to calculate a development impact fee for
development in the Project for City wastewater facilities (including the collection system and the
Chi's Regional Wastewater Reclamation Facility) that takes into docowt the reduced volumes
from the Project and is different from the current adopted City development impact fees for the
City's wastewater treatment facilities. The City and the Developer intend for this Agreement to
establish the appropriate reimbursement to be provided to the Developerand the appropriate
development impact fee to be paid by the Developer to the City to develop the. remaining
undeveloped portions of the Pon tet which may or may not be adopted by the City into the Maher
Fee Schedule,
Q. The City and the Developer desire that the City acquire ownership of, operate and menage,
the W WTP. This Agreement is colonel into for the purpose of (1) trmsfening the W WTP to the
City. including but not limited to, the Subject Property, all wastewater treatment equipment. all
improvements and facilities located on the Subject Property, all opportunism easements and rights,
free of all liens and encumbrances, (2) compensating the Developer for costs incurred by it
allocable to the Expansion Capacity, (3) providing enforceable azsumnces to Face Developer Nat
Developer's Reserved Capacity wil I, at all three be available, as necessary to provide wastewater
Samoa to the Project. (4) providing assurances to the Developer that Developer and the
developments in the Project Area will net be subject in additional exactions for providing up to .R3
MGD of treatment and disposal capacity in serve Full Build Out of the Project, (5) providing
reimbursement to Ne Developer for a portion of the previously paid sewer connection and
wastewater Facility related fees, and (6) establishing the wastewater facility fee obligations for the
Project
AGREEMENT
Recitals.A through Q are incorporated herein and made- a part of this Agreement Inconsideration
of the Recitals above and the obligations undertaken by the parties as hereimRer set forth, the
parties serve as follows:
1. Term of Agreement. This Agreement becomes effective on the date of execution by all
parties to the Agreement ('Effective Date") and will remain in effect until Full Build Out of the
Project in the Project Area or points -five (25) years, whichever is sooner.
2. Transfers
2.1 Transfer of W W"PF; Sof some; Title to Documents and License of Software.
Subject to the more and conditions or this Agreement, Developer and City agree to transfer
ownership of the W WTF, including the Subject Property, and all other fixtures, improvements,
equipment rights and easements (including but not limited to, the Pipeline Easement) from the
Developer to the City. All documents (including, but not limited to, computer or electmoic data),
diagrams, surveys, photographs. plans, drawings and specifications for the W WTF are and shall
hereafter be the property oflhe City Developer shall cause these documents to be delivered to the
City upon the Closing (defined below). Developer shall also provide, upon Closing, all software
reencoarry to operate and manage the W WTF, and provide pnpetual licenses for use of that
software and at (cast one year license for support and maintenance and any source codes the
Developer may have.
2.2 Transfer of Disposal Capacity. Open Ne Closing Developer shall also assign to
City its interest in the W WTF Permits said related documents, including the DTE License, and
mice at other necessary actions within its aware) to ensure slut the City may legally dispose of, or
caused to he disposed, up to 0,71 MGD ofTle ad Effluent on me Golf Course m a manner
consistent with the terms of the OTE Easement Agreement, the DTE License and the W WTF
Permits. Developer shall cause the necessary documents to be deposited to assign these interests
to City into Seaver within 15 days after the Effective Date.
2.3 Delivery of Clean Facility in Operable Condition. Developer shall cause the
IlWTF and Subject Property to be in a good, clew. mainly and fully operable condition at the
time the W WTF and Subject Property are transferred to the City.
3. WWTF Construction (Developer's Warranties)
3.1 W WTF Construction. Developer has, at its sole cost and expense, committed the
W WTF and the related transmission and disposal facilities (except for the portion of the disposal
facilities suit to be completed as described in this Agreement) in accordance with plans and specs
approved by the City and due W WTF Permits. Withom limitation, Developer has procured all
settlements and permits necessary for the construction of the W WTF and related facilities and has
paid all costs and fees that were necessary for the construction of the W WTF and the related
f illues,
3.2 Compliance with the Law. In constructing the W WTF. Developer has complied
with all applicable laws and regulations of me United Stars, the State of California and City, and
the fenny and conditions of the W WTF Permits,
3.3 Warrantyof WWTF. Developer shall provide a warranty for one year from the
Effective Date against any defects in materials, design and work riche W WTF and all other
equipment, facilities on the Subject Property.
3.4 Warranty of DTE Disposal Facilities.
3.4.1 Completed DTE Modifications. Subject to the Country Club's.
observation of goad DTE management practices in accordance with the W WTF Permits; the DTE
Disposal .Agreement and the Effluent and Disposal Delivery Agreements, Developer shall provide
a warranty to the City for one year from Ne Effective Date against any defects in materials, design
and work of the completed On Course DTE Delivery Facilities (subject to the DTE Delivery
License) and the completed DTE. disposal modifications to the Golf Course.
3.4.2 Remaining OTE stratifications. Developer has agreed to Perform all work
necessary to complete the remaining irrigation system modifications to the Golf Course as
described in Section 9.3 below. Such work shall be coderteken by the Developer in our
cooperation with rhe City and the Country Club at Developer's sole cast and expense. The paries
Wee to work together in good falai and cooperate in developing a commercially reasonable
schedule or me work necessary to implement these retaining much Grabens, which shall
coordinate with the progress of corresponding and related Project deeelopment work being
performed. These remaining modifications may be performd by Developer in multiple stages or
phases{each a "Pbase"i depending on the ate at which the Project develops. Of the oomplefon
of each Phase of the remaining modifications. Developer shall convey that Phase to Country Club
and shall notify me City of such conveyance. Subject to the Country Club's observation ofgod
DTE. management practices in accordance with the W WTF Permits, the DTE Disposal Agreement
and line Effluent and Disposal Delivery Agreements, Developer shall provide a warranty to Ne
City for one year from the conveyance of each Phase of the irrigation modifications to the Country
Club against any defects in materials, design and work of each such Phase.
35 Performance of Warranty Work. Developer agrees to correct my defective work
covered by any of the one-year warranties described in Sections 3.3 or 3 4 above within thirty (30)
business days after being notified in writing by City of the defective work. The time to repair may
only be extended m writing by the Director of the Public Utilities Department which consent shall
not be unreasonably withheld err denied in the event that with the exercise of due diligence, such
repairs require more than thirty (30) business days to complete. Should Rte exigencies of the case
require repairs or replacements to be made before Developer can he notified or respond to life
notification. Developer authoraes City to praeeel to have the def ave work connected and made
gond a Developer's expense, and Developer will pay witivn 30 days, upon City's demand, the
cost therefore, including related applicable toss and repast mcmrd by City. However, the
making of such repairs shall be subject to the property rights of me Country Club,
4. Real Properry, W arraribes. Developer represents and warrants that: (a) Developer owes
the Subject Property, her and chair of all liens, licenses, claims, encumbrances, easements.
cmachmems Tom the Subject Property onto adjacent pmperties, and my rights of way, other
than those matters disclosed by the public record; (b) Developer has no knowledge army pending
litigation involving Ne Subject Property. (c) Developer has no knowledge of any violations of, or
notices concerning defects or noncompliance with, my code. statute, regulation, evidence.
judicial order, or judicial holding concerning the Subject Property; (d) Developer hes no
knowledge of my hazardous materials or substances scored, discharged, or otherwise present in,
n, or affecting the Subject Property, (el Developer has no knowledge of my material defects in
the Subject Property, and (D the Subject Property is free of occupancies by third parties. Thane
warranties shall survive the Closing and the recording of the Grant Deed (defined below).
S. City Payment. City will make a one time payment to the Developerin the mount of
$3,628.221100 as reimbursement for: (a) construction of jmprovemen¢ allowing Expansion
Capacity in the amount of $2.243,9]1.00 and (b3 excessive impact fear to the Developer he the
amount of $984.249,00 as provided in Exhibit G. Such sum shall be deposited into the Escrow
contemplated by Section 6 within fifteen days after the Effective Date. Unless otherwise
expressly provided in this Ageemrn. this payment shall satisfy all financial obligations the City
has to the Developer for the harefer ofther Subject Property and the W WTF to City and the
reconciliation of fee credits and additional fees contemplated in Section 10.1 of this Agreement.
This Section is subject to the Developer providing the assignment and waivers identified m
Section 10.1.1.
6. Escrow lnstraMions.
6.1. Opening Escrow. upon execution of this Agreement, the parties shall establishm
ucrow for the conveyance of the WWTF to the City with First Americm Title Company, 7625 N.
Palm Ave., Suite 101. Cream. CA 93211 f7ide Company"), Attention: Donna Brown
6.2 Agreement as Joint Escrow Instructions. This Agreement, when signed by the
Developer and City and deposited into escrow with the Title Company, will be the parties' joint
escrow instructions for the isen w. Developer and City will sign and deliver my other form
interactions the Title Company may rcqulm that are consistent with this Agreement.
6.3 Deposits into Escrow. Developer and City will deposit all iostmmems,
documents, money. and other items inn escrow with the Title Company that (i) this Agfeemmt
tdentifics or (u) the Title Company may require the are consistent with Oe terms and purposes of
this Agreement, and necessary to Closing (def xed below). Within fifteen days after escrow,
opens, Developer will deposit a recordable grant dead, substantially in the form attached as
Exhibit B (the "Grant Dad"), into the escrow with Title Company.
6.4 Title. Developer l I convey title to fa Subject Property to City Ree and clear of
all title defects, liens, encumbrances, conditions, covenants, resmcfi fns, leases or agreements, and
other adverse interests of record or known to Seller, subject early to title exceptions numbered 3, 4,
5.6.2. S. 11. and 13. 14, 15, 16, 12, 18 and 19, in the preliminary title report, ONer No. 1064
3153936, issued by Title Company. effective as of October 2, 2008.
6.5 Title and Closing Costs. Developer will pay my costs of clearing and conveying
title m the condition described in Section 6.4 above, for the casts of a CLTA owner's title policy
insuring City s title N the mnowt of $3,628,220.00 (equal to the onetime payment described in
Section 5 above) in the condition counted in Section 6.4, escrow fees, costs to record the Grant
Deed and any other costs necessary to convey title to the W WTF to the City.
6.6 Closing. The escrow will be considered closed ("Closing Daze("'Closing." or
"Close") on the date that the Title Company records the Grant Deed The escrow will be in
condition to Close when all conditions to Close are satisfied or waived, the Title Company is
prepared to issue Ne title policy described in Section n 5, and the Title Company is otherwise able
to record the Grant Deed. The parties ogee that subject to the cmmUmw Ofthe foregoing
maners, the Closing Date will be November 26, 2008. or such earlier date as the parties may
agree.
6.7 Disbursements. At Closing, Title Company shall disburse to the Developer the
payment deposited into emrow by the City as desc bed in Section 5, less Developer's cast to clear
title, pro-moons, and other costs, if any, to Developer.
6.8 Pro-radonc AtClosing, the Title Company will Procne the following, between
Developer and City, based on a 301 month: teal property cases and special assessments.
6.9 Risk of Lass. Any loss or damage to the Subject Property or my improvements,
equipment or fixttues, including the W WTF, before Closing is at the Developer's risk.
6.10 Broker. Each party represents and warrants that it has not engaged a broker or real
estate agent for this transaction, and no commissions are payable concerning this purchase and
sale.
6.11 Inspection. Close ofesctow is contingent upon the Director of the Department of
Public Thinies (" Dnecmr ) and/or his or her designee finding after inspection ofthe W W TF
(including start-up ofthe facility) and the Subject Property that the W WTF is clean, in good
condition and order and fully operational pursuant to Section 2.3. Nothing provided herein, shall
limit the City's ability to srek repair and/or correction of my defect in condition of the WRTF
pursuant to any warranty or any other provision in this Agreement.
6.12 Assignment of Rights of Licensor under DTE Delivery License. Concurrently
with the Closing, Developer shall assign its rights as the licensor" under the DTE Delivery
License to City by execution and recordation of a mutually acceptable assignment.
9. Delivery of Possession. At Closing, Developer shall (i) deliver possession of the W WTF,
including the Subject Property, Li) deliver all documents, (including, but not limited to, computer
or electronic dam), diagrams, survevs, photographs, plans. drawings and specifications for the
W WTF described in Section 2.1 and (ii) deliver possession of all software and software licenses
described in Section 2.1.
8. CommencementerWWCFOperatlons. Commencement ofthe actual operational the
WWCF shall be in the sole discretion of the City; provided, however, that such operations shall
wernmence prior to the time when the 500 EDU's of temporary wastewner armee being provided
by the City to development within the Project from existing facilities are exhausted.
9. Further Developer Commitments
9.1 Landscaping. Developer shall complete all required landscaping romed under
City development entitlements for the W WTF either upon the earlier of (i) completion of the
Copper River Treat which is a condition of one or more development entitlements for the Project
or Iii) within six (6) months of being noticed in writing by the Director to complete such
Landscaping improvements. Until the landscaping requirements are met under this section, the
Developer shall ensure the landscape easement on the Subject Property is kept free and clear ofall
wells and debris and other public nuisances. Rthe Developer fails to subswm the landscaping m
provided in this Agreement, the City may withhold building parts for any development in the
Project Arca until the lmuscromp improvements are completed to Me City's reasonable
satisfaction.
9.2 Phase 111 Reclaimed Water Pipeline. Developer shall In regmes Lle for
constructing the Phase III Reclaimed Water Pipeline on the north side of Copper Avenue personal
to City approved Plan g.i-5220 approved on August 7, 2W8, on or before completion of the
Copper Avenue Trail. Upon City acceptance of the Phase 111 Reclaimed Water Pipeline, the
Developer shall provide a one-year warranty to the same extent and in the same manner as
provided in Section 3.3. Developer shall not be entitled to my right ofreimbursement for the
Phase III Reclaimed Water Pipeline. If the Developer fails in construct the pipeline as provided in
this Agrecmem, the City may withhold building permits for any development in the Project Arca
until the pipeline is completed and accepted by the City Engineer.
9.3 Golf Course Facilities. At the timeofteectmon oftlds Agreement irrigation
facilities are still required to be installed to allow the dischmge of0.71 MGD ofDTE m a manner
consistent with the W WTF Permits. h is not expected by the parties that the W WTF will be
discharging 0.71 MGD DTE in the first you of its operation. Within one year of the City's.
approval of all street locations and grading plans for the easterly portion of the Project (including
property sharing a common boundary with the Golf Course which is not awned by Developer),
Developer shall cause all irrigation facilities on the Golf Course to be completed such that 0.71
MGD of DTE may be discharged in a number consistent with the W WTF Permits.
Notwithstanding any of the above, until the modifications of the Golf Course =gotten facilities
we complete, Developer shall provide that the Golf Course irrigation facilities are installed
adequate to discharge any amount the W WIT is totally discharging up to 0.71 MGD, Know
Developer fails to construct the Golf Course facilities as provided in this Agreement the City may
winthold building permits for any development in the Project Area until the DTE disposal
facilities are completed and able to handle the required discharge of DTE pursuant to W WTF
Perils as set forth above.
10. Wastewater Facilities Fees.
10.1 City Regional Wastewater Treatment Facility and other City Wastewater
Facility Fees.
10.1.1 Reimbursement Asprovidedin Section5,the CityshaEml burse
Developer for previously paid wastewater facility fees its provided in Exhibit G. Such
reimbursement will be subject to the Developer providing the assigmnents add waivers requited
under Sections 2.2 and 31.
10.11 Payment of Modified Wastewater Facility Each. Except for approved
developments for which Developer and Its affiliates have previously paid sewer connection and
various wastewater facility fees. Developer shall be responsible at time of pulling building permits
to pay a modified City wastewater facility fee of 5657.50 per EDU as provided in Exhibit I for
any new development within the Project Area. Developer will be responsible for this fee
regardless whether Council adopts it into the Master Fee Schedule or otherwise complies with the
Mitigation Fee Act (Gov't Code §§ 66000, or set.). Developer agrees to cooperate in and waive
anynght to object to or legally challenge any action by the City to impose and/or collect the
modified City wastewater facility fee contemplated in Exhibit I (including a formal action to
adopt the fee in Exhibit I for the Project Area).
10.1.3 Developer Not Responsible for CityWastewater Facility Fees in Project
Area, if Developer has paid the fee identified in Section 10.12 and Exhibit 1, Developer she
not be responsible for payment of my impact fees for the City's Regional Wastewater Treatment
mdlor Disposal Facility and other City Wastewater Facility Fees for any development in the
Project Area up to Full Build Out of the Project (total of 3,682 EDUs). After Full Build Out of the
Project (3,682EDUs), the Agreement shall tenoivate add Developer shall be responsible for
Paying anywastewater facility fees required under then cement CiN ordinances and policies.
10.2 W W'TF Impar Fees. Upon es uuon ofihis Agmmmn for development w the
Project Area, up to Full Build Out of the Project (3.682 EDU's), Developer shall not he respensihle
for any fees to pay for any cost of the W WTF, the Subject Property, any disposal facilities (except
for completion of me Golf Course imgatlon system and Phase M Pfpolinc as described above) and
any associated equipment or facilities. including the Proposed expansion thereof Developer agrees
to cooperate in and waive my right to abject to the adoption of say fee the Citv adopts to recover
costs to pay for the W WTF on properties outside of the Project Area in the Map on Exhibit B
regardless whether the Developer owns or acquires property in the proposed fee service area.
10.3 Disposal Fees. Notwithstanding anything to the memory in this Amemi
development within the Project Area will be responsible for payment of supplemental sewer
-service fees to fund payment of the "DTE Disposal Fee" contemplated by the Disposed and
Delivery Agreement as pmvidial in the City's Master Fee Schedule to reimburse the City for its
costs to pay $e Disposal Fee to the Oeif Course in admonition with the operation of the W WTF.
ll. Will Serve.
11.1 Priority Capacity Reservadon. The City agrees to assure Developer's Reserved
Capacity of up to 0.83 MGD of treatment and disposal capacity, in the form of "Will Serve"
letter which shall he useable anywhere within the Punitive Area. Within ten it of the Effective
Date, City will issue an unconditional "Will Serve" letter to Developer for 0,83 MGD of treatment
and disposal capacity, assuring Develops wastewater smite for up to Full Build Out of the
Piojen(3,682EDUidinthe ProjectArea. Developer's rights under the "Will Serve" letterare
fully translation and assignable within the Project.4ea sad any consideration received for the
transfer of Developer's Reserved Capacity is the aide property of Developer provided all of to
following comments are met;
(1) Ne City has consented in writing to the assignment;
pi) the assignment is in the form of Exhibit J to this Agreement; and
(iv) the Developer lice completed its obligations order Section 9 of the Agreement to
the extent required as of the date of the assignment.
11.2 Timely Future Expansion. City shall use good firth efforts to secure permits
necessary for expansion of Ne W WfF treatment and disposal capacity to 1,25 MGD and provide
additional capacity before the volume of wastewater being created at the W W'CF exceeds 0.62
MGD. City shall not deny building permits to Developer for projects in the Project Area during
the term of this Agreement due to the lack of sewer capacity.
12. Ind
12.1 To the furthest extent allowed by law, including California Civil Code Section
2782, Developer shall indemnify, hold harmless and defend City and each of its officers, omcons.
employees, agents arta volunteers from any and all loss, liability, Wes, penalties forfeitures, costs
and damages (whether in contract, tort or stilet liability, including but not limited to personal
injury, death at any time and capacity damage) incurrel by City, Developer or any other person.
and from any and all claims, demands and actions in law or equity (including attorney's fees and
litigation canonical, arising or alleged to have arisen directly or Indirectly out of Developer's
acquisition, construction and transfer of the W WTF to City Developer's obligations under the
preceding sentence shall not apply to any loss liability, fines, penalties, forfeitures, costs or
damages. caused by the negligence of the City or any of its officers. officials, emplovees.
volunteers or agents.
12.2 This Section 12 shall survive preparation or expiration of this Agreement,
13. Default, Termination.
13.1 Default. Anv below or delay by eiNerparty in performing its obligations under
this Agreement constitutes a default if, within 30 calendar days after receipt trounce of default
from the other party. (i) the defaulting pane does not remedy the failure or delay or (it) if the delay
or failure cannot be remedied within the 30 -day pedad, the defaulting party does not within the
30-dav period begin substantial efforts to remedy Ne delay or failure, and does not diligently
pursue Ne efforts to completion within a reasonable time. However, the foregoing item (III shall
not apply to anv failure by City to comply with the previsions of Section 11 above. The notice of
default will provide reasonable detail of the delay or failure claimed as a default and the manner,
if any, in which the defaulting party may remedy the delay of failure. During the periods specified
in (i) or (ii) of this subsection, except as expressly provided above, the defaulting party will not be
considered in default for purposes of terminating this Agreement or for invoking any other remedy
for default.
13.2 Termination. Upon either party's default as described subsection t3.l,the non
-
defaulting party has me right to terminate this Agreement immediately by giving notice to the
defaulting puny. However, alter the Closing, no such nomination, regardless ofthe
commstacts, shall (i) deprive Developer of the Developers' Reserves Capacity or the rights of
Developer order Secdorvs IU and 11 for twenty-five years or (ii) deprive the City torts rights to
impose and collect fees under Section IU or its right to indemnity under Section 12..
13.3 Remedies Cumulative. Allremeddatiftheprtiesarectwularive. Terminetion
of this Agreement by dtherpany under this Seeded ism additional remedy, and except as other
wise expressly provided in this Agreement, does not limit any other rights carousel mutable to
that party, whether granted by this Agreement or available at law or in Nutty including, but not
limited to, the righter brine m action for specific performance, injunction, mandanums or
damages. The exercise by a pare of any remedy is not an election of remedies tied is not a waiver
of any other remedies. Notwithstanding any provision w this Agreement to the contrary. me only
remedy available to the Developer For a default by the City under Section 1 I is specific
performance.
13.4 Waiver. Apartys far lure to insist on strict performance of any provision of this
Agreement or fu -lure to exercise any remedy available to that party is not a waiver of the
performance or remedy. Apartly waiver of any provision of this Agreement or waiver of any
defauh by the other parry, or waiver of any remedy is not effective unless it is in writing and
signed by an authorized represemauve of the waiving party. A party's waiver of a particular
provision or default does not apply many other provision or default.
13.5 Spedfic Performance. Unlras amended, terminated or canceled under applicable
law or the terms of du s.Agrecmen4 the terms of this Agreement are specifically enforceable by
either party.
14. Discretionary Governmental Actions. Nothing in this Agreement shall be composed to
Prevent the City from exercising urs police powers to approve or deny my land use emitiement or
enforce the conditions and requirements of my land use entitlements held by the Developer or
impose additional requirements proms nt to 0mre City ordinances or. regulations adopted in
compliance with al l applicable laws and regulations m orderto protect the public's health, safety,
and welfare, or to enforce state and/or federal law, regulations aadmr administrative or legal
orders. Nothing in this Agreement shall be construed to require the City to take my legislative
15. Assignment. flus Agreement may be assigned upon the written consent of the nom
assigning party.
16. Amendment. Modification and Contributes. The Agreement may be amenil
modified or cancelled by mutual cement of the promise in wining. All scommeante and
modifications, when properly approved and executed, will he recorded in the same mower as this
Agreement.
fl. Further Assurances. Upon request of the other party, each party will execute my
additional documents and take any additional steps reasowbly necessary to carry out Ne purposes
of this Agreement.
18. Notices. All notices under this Agreement will be in writing end will be given by personal
delivery; or by registered or certified G.S. mail. postage prepaid, return receipt requested; or by
facsimile iftram miffed by a machine that produces a transmission report verifying the date end
time of Imosmission and the telephoec number to whichtransmitted, and a cmdirmin& hand copy
is mailed to the recipient; or by overnight delivery service that issues a receipt: and addressed to
me appropriate party at the address ad forth below_ Notice given (a) by personal delivery will be
effective upon delivery; (b) by mail will be effective open receipt or three calendar days atter the
postmark daze, whichever is earlier, (c) by facslmi le will be effective on the date shown on the
transmission ownipq and (d) by ini might delivery service will be effective on the date of receipt.
To the City:
City of Fresno
2500 Fresno Street, Room 3065
Fresno, California 93721-3601
Attention: Public Utilities Director
Fax No.: (559)490-1304
With Copy to:
City Attorney
2600 Fresno Street Room 2031
Fresno. California 93921-3602
Fox Na: (559) 488-1084
Tn Developer:
Darius Awemi, President
Capper River Development Company, Inc.
1396 Wen Herndon. Suite lel
Fresno. CA 93711
none'. (559) 4360900
Fax (55q)436-1659
With a Copy to:
Steven G. Rau Esq,. General Counsel
Grenville Homes, Inc.
1396 West Hcmdou. Suite lel
Fresno. CA 93711
Phone, (559) 436-4228
Fax: (559) 4366247
Eitherparty may change its address or the addressee for notice by giving notice in accordance with
this Section.
14
19. Relatioushipof Parties. Nothm€inthis Agm¢mmtoranydoc=mtsigoedin
connection with this Agreement will be construed as creating a partnership, joint venture, agency
relationship or employment relationship between the patties or their contractors, subcontractors,
employees, agents or representatives.
20. Attorneys' Fees and Litigation Expenses. If my pane is required to bring a l awwiL
arbitration, or other proceeding with respect to breach, interpretation, or enforcement of this
Agreement, the losing parry shall reimburse the prevailing many reawnable atmmeys' fees and
expenses incurred in connection with the lawsuit or proceeding and any appeal, in such amount as
may be determined by Ne court or other sibmal having jurisdiction,
21. Govemivglaw. This Agreemem willbc imerprdW and wtlslmW, and thenghss and
duties of the ponies (both procedural and substantive) will be determined according to California
law
22. Counterparts. This Agreement may be signed in one or more counterparts. each of which
when signed irrespective of the date signed and delivered, will be deemed to constitute one
instrument.
D. Exhibits. Each of the exhibits referenced in returned to this Agreement is by the reference
incorporated into and made a pan of this Agreement for all purposes.
N. Entire Agreement. This Agreement, including all attached Exhibits, centers the entire
understanding and agreement hens wen the parties concerning the matters described in this
Agreement. This Agreement merges with and supersedes all prior anderstandings, negotiations,
agreements, representations, correspondence and documents relating to the matters contained in
thie Agreement.
25. Venue. Venue for my action arising out ofthis Agreement and brought by any afthe
parties will be the Fiction Emery Superior Coati or the United States Distinct Court for the
Eastern District in Fresno County.
28. Consent. Reamarablevess. Except when this Agreement specifically authorizes a party to
withhold its approval, consent, or satisfaction in its sole discretion, any consent, or approval, or
satisfaction required of a party under this Agreement, will not be unreasonably withheld.
conditioned, or delayed by the party.
27. Severability, The provisions Of this Agreement are severable. The invalidity or
un"fiameabiliry of any one provision in this Agreemem shall not spinet the otherptvvisimvs.
28. Interpremtton. The parties acknowledge that this Agreement in its final form is the result
of the combined efforts of Ne parties and that should any provision of this Agreement be heard to
be ambiguous in any way, such ambiguity shall not bar resolved by constrtiing this Agreement in
favor of or against either parry, but rather by construing the terms in acemdence with their
generally accepted meaning.
39. Preredemeof Documents. in the event of any conflict between the bodv of this
Agreement and any Exhibit or Attachment hereto, the mmrs and conditions of the body offli s
Agreement shall cannot and take precedence over the terms and conditions expressed within the
Exhibitor Attachment Furthermore, any terms or conditions contained within any£xbibit or
Anaclmarmhereto which purport to modify the allocation ofrisk between the paries, provided for
within the body of this Agreement shall be null and void.
30. No Third Party Beneficiary. nam shall be no thbd Perry beneficiaries to this
Agreement.
31. Assignment of Interests to Fees. An time of execution of this Agreement. Developer shall
provide executed assignations of reimbursement rights from all entities (other than Developer) that
have paid any fees identified in Exhibit d that acknowledge reimbursement under this Agreement
and release all interest in any reimbursements for any fees identified in Exhibit J and waive any
furore neht to bring any legal or administrative cballenge against the City related by wastewater
impact fees.
CRY OF FRESNO,
a Municipal Corporation.
By
R e..R rL ex f) to
Public Chit as Depwnent
ATTEST:
REBECCA E. KLTSCH
city Clerk
By: e
eputy WS/06
APPROVED AS TO FORM:
JAMES C, SANCHEZ.
City Ayanney
ey
Deputy
COPPER RIVER DEVELOPMENT
COMPANY, INC.,
a Cable orpomtion.
By,
M nald, Enter Vice- i6ident
EXBIBITLIST
Exhibit A Legal Description of the CRR Project
ExhibhB Description of"Project Area"where Developer's ReservM Capacity may be used
Exhibit Legal Description of WN'TF Plant Site
Exhibit Intentionally Omitted
ExhibitE lmentionally Omitted
Exhibit Effluent Disposal and Delivery Agreement between CRCC and City
Exhibit G Fees Previously Paid by Developer and Affiliates and Fee Reimbursements
ExhpnH Eorm of Grant Deed
Exhibit) Recalculated Regional Wastewater Facilities Impact Fee payable by Developer
Exhibit Approved Form df Assignment of Developer's Reserved Capacity within proien Arca
Exhibit A
c\C LF\C wl R nma - imn+eewnonc...n_,., nam 6e.. V W.0,.. -0d , s,.,
Exhibit B
Exhibit C
EXHIBIT C
WAS IF NATER TREATMENT PLANT LEGAL DESCRIPTION
That real propety oruated in the Souaesat Quatat of Petition 11, Township 12 South
Range 20 East, Mount Diablo Base and Mendota, annealing to Ne Official Ubtad San
Government Township Plat thertof said real property hang dearm ed as 'CortebtAf
tagm Dnmpnon —Pared I"in a Orme Dead recorded April l3, 2005 as Dominent Na
2005-0081 Mel, Official Ramada of Fremo County, said real propeny being more
parmu bly described u follows:
COMMENCDJG at Me eouawm[ (amet of said Scuaeast Quaver; thence South 89" 25'
01" Faso along Ne scab line of sad Soubeut Quart a distance of 989]1 feet to the
southerly prolongation of the west line of laid INCO] l u descnhed in said Document
No, 2005-0081069; thence North V 05' 32" Easy along sad southerly prolongation, a
clearance of 20.W fen to the anmM1west comm of and Parcel I and Me TRITE POINT OF
BEGPW WG of this mucdpdon; thence continuing North 1° 05' 32" Eat, along the went
fine of sad Pascal 1. aNatenn of 380.00 fns; mens NOM 45" 50' 15" Ent along the
nanhwesterly line of said Petcal 1, adoonce of 28.41 fmh thence Somh 89° 25' 01"
Fast, paalet with said soullr Ime of said Southeast Quetef and along the COMM line of
said Pascal 1, a distant of 34500 fen to be noNte6st comer of said pal 1, said
novheat coma also being the northwest coma of that parcel of land described in a
Grant Deed remfdad February 7, 1989 as Document fid IND 13894, OlEced Records of
dong t t, wast line
ad a parent
re 32" Wma acumen eat Wz 1(894. Patel 1 mod
along the west line or hea panel damWd ar DocumentNoN rth 99.94, a 1" Wen 1f
400.00 twit to the southeast come of a said Ii Merle ouM Southeast
Qua ter West
Pool with and and P far n,nM of Ne eof3 5,M f auto Me nUt Qtuner OFalong
Me scab Jneof sad Parcel 1, adisnn<c of 365.00 fence the TIlS1EPoEPf OF
BEGLYNWG.
TOGETHER WITH the underlying fee interest, aany. contiguous in be above dmenped
rem pry my in and 11 East Copper Avenue.
Contains a gas$ ams of 3.52 atom and a M Oil of 3.35 aces.
(gmss ante includes the 20.00 fam wide senp of land numb of be south Joe of the
Souaeaat Quant of said Science 11 cmmguou9 on rhe above fix bed Centel to
dacdbed in Me document ncoubmi Dnember 28,1901, in Book 219 at Page 239,
ficial Remade Fresno County)
Exhibit D
(Intentionally Omitted)
Exhibit E
(Intentionally Omitted)
Exhibit F
Exhibit G
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IF, FIN US
Exhibit H
Recording Requested By:
Public Works Department
City M Fresno
No Faa-GOJI Code Sections
6103 and 27363
When Recorded, Mall To:
Publk W oMa Department
City 1 Fresno
2600 Fresno Saest
Fresno CAATf 6ruuce Alobaft 3
SPACE ABOVE THIS LINE FOR RECORDER'S USE
APN: 579-07&65
GRANTDEED
For a valuable consideration, reverie of which is hereby acknowlotlged, COPPER RIVER
DEVELOPMENT COMPANY. INC.. A CALIFORNIA CORPORATION, GRANTOR,
heraby GRANTS to the City of Fresno, a municipal corporation, GRANTEE, all that
certain real property siNatW in the City of Fresno, County of Fresno. State of California,
more particularly described and shown as follows:
See Exhibits `A' and T', which we attached and incomorete l herein
DATE OCT 131 2007
Copper River DevebpnmM Company, Inc.
A Ourfomia Corporation
B' /
Dentia seami, PresldeM
T-5205
2007-121
Flo 4(o
15nk 3 fl
6tete of Cellto rr f — 01`1I011 L SECTION —
Gaurry OF Freanp)
On GCT AOXY before me. r,AceoC,E A. M enifuKows
Vic. S
Notary Public, personalty appeared. OAP 3 dS56.ftz 6
aewwsamioxaslR OINOM
O CwIPoEATTMIE OFFlLERIeI
9 ppersonelly known to me - OR- ❑ poor to me on the basis of mrapl
satisfactory evidence, W be me OPARTNEPS OUMM
persoms) whose Terrorist Ware D.GENERAL
bserlbeb to me within instrument O ARORNEY-IX FACT
tl acrunrawletl oto me ihel OTRDETEF.N9f
Ba OGUAfl S REPRESENMIERWTOP
helSM1flRhey authNetlihapameln rowan o ISREpws) the IXG
houltherandMrtnaaeumeumnoc ilroa leaf, NaAff or PEwwMSloR ammuasl
on
Met by hiemer e p si orms), r
thema instrument Me pf a fler t Or
me emery upon haharc of whkM1 me
I1FAN1E paexecuetl me
CONN. 01764816 strument.
3 IOIMYhLi-WFmM t'
W fTNESG my hand and Cleidal seal 9
c
nowimunevirruni
CERTIFICATE OF ACCEPTANCE (ONiceQ
In uncommon with Beonon 9281 of me Government
Code, this A to certify that the interest in Of propeeny
onveyed herebytA'w accepted by Me undersigned ors
behalf of the Couoco of me City of Fresno wmuant to
authority mention by freuMu fon No. 92-219A of wy
County, w e sed dWe 0. 1992 and Me Morrie cements
to the recondition Maoof by he dwy authorized amcar.
Public Works Director
ACCEPTED:
By Date:
DEPUTY
FEE TITLE ACCEPTANCE (Clir
City Manager
BT
ni
RECOMMENDED FOR ACC
Be
Troo:
CERTIFICATE OF ACCEPTANCE (Council)
In accordwitot who Baction2T28I 0 the Govenl
Carie, me in to Carty, that Me In1xM In now pmperry
mveyed by thin Instrument to Men CM o1 Fresno. e
municipal mryoretlon, la mraby accepted by order of Me
Cover of Me City of Fresno made on me date hereafter
eat fort and the 9rentee commerce N the rec0de0m
mereaf by he only eNhonmb Officer.
Item No Meed. No
Darn of Couni Order
CRY CbM
ST one.
aawr.
APPROVED AN TO FORM:
City Attorney
Dau:
By. but
/J CHECNEd,GO
ST
TOE
Date:
Log Na.2oa7-iz/ DrewMgNo /SAY-gdSG % SZ di
APN 579-073-6S
Waste WawrTreatownt Plant -Gant Deed
EXEI®7 "A"
1 GALDESC]t(FDON
not real pmpmy situated in the Southeast Quaver of Sstion I1. Township 12 South.
Range 20 East, Mount Diablo Base and Meridian, according to the Official United Stems
Govannnt Township Plat thereof. said moil lmnperty being distended as "Conemd
Legal Description -Parcel 1"in a Grant Decd recorded April 13, 2W5 as Document No.
20054)081069, Official Records M Fresno County, said real property being mom
paracularly described as follows:
COMMENCING at the southwest comer of said Saothcet Quetr .. Nance South 89025'
01 -East, along the south lire of avid SDelsinet Quarter, n distance of 987.71 fat on the
southerly prolongation of the weal line of sad Parte I as described in said Document
No. 2005-0081069; thence Nandi P 05' 32' East, along said souNedy prolongation, a
dletanee of 20.00 fat on the southwee comer of said Parcel l and the TRUE POINT OF
BEGINNING of Ws descnpoom; thea continuing North 1005' 32" East. along the wast
Ism of said Parcel 1, a distance of 380.0Bfind; thence North 450 50' 15" East, along the
nodhwest rly line of said Parcel 1, a distance of 28A1 fist thence South 890 25'01"
East. parallel with said south line of said Southwest Questa and adding the north lice of
said Parcel 1, a distance of M5,W fat Wthe northeast comer of sold Parcel 1, said
northeast carver also being the northwest coma of that parcel of land described in a
Gent Deed seeded February 7. 1989 as Document No. 89013894, Metal Rscards of
Fresno County; thence Soon 1005' 32" Want, going the east line of said Pesvl 1 and
¢ mgthe west line of sad parcel dnuibed in Dammam No, 89013894, a di#eaa of
400A0 fat to the southeast comer of said Pmcel 1; therm North 890 25' 01" Ween
parallel with no 20.00 fee[ north of the with line of said Southeast Quarter and along
the south line of said Parcel 1, a disrmta of 365.00 fat in the MME POINT OF
BEGWNING.
TOGETTIPR WI'ff[ the underlying fee inset if my, contiguous to the above described
resl property in and to East Copper Avenue.
Canines a gross wren of 3.52 sun and a net ams of 3.35 acres.
lioness ma includes lie 20.00 foot wide stop of land north of the mouth line of the
Southeast Quarter of said Swan 11 contiguous a the above described parcel n
demotion in the daument recorded December 28, 19R, in Book 219 at Page 239,
Mae Records Fresno Comry)
fG PND4OP
84 LC10
J 4 err
T-5205
2007-121 ,�¢T
PLAT 460
15-A-8356 �aa� yDy��Q6r
EXHIBIT W
SEa�ANo L,
\ L
f 4
ko ]fi90�p
S79IE 0.`CAlFU"
NATE SINNM iil6dSt�
PO
PO
aS
�P
ff.
SE£ SHEET 2
w
w
6
6
Q
W
Q
W
O ' OO
�
v
�
EAST COPPER
AVENUE
r =moa'
LEGEND
SI IN FEET
®
AREA TO BE OEEOE➢ TO 1 E Pm OF TME5NO
OI
RED. DOC. N¢ 940549220REC.
0 590 IWO 2000
O
REO. DOC N,.. 2095W51069 ORFG
O3
REC, DOC Na. 69013094 OREC,
O1
RED, DOC. Ne20040291145. D.R.P.C.
&RIYCITY
OF FRESNO
OEFART ENT OF PUBLIC WORKS
511
-
_Ew
6Ow1@MTONEWARTEROPaEORONtI.11
N•E
s 1ak[rs
NIlW W_
_ _�
1D BEOEF➢EDNIMECT'OFFl£e•Ip
I[ _�
15-.1-9b56
EXHIBIT "B"
DDCUMEM NO, 96054922
RECORDED MARCH 29,1994
OPEC,
YB H' \ 5B9'25'0�
Aj
ID.O. B.
9fl]]t -x89'15'01
SOUTH QUARTER CORNER
EEC PI. 12S, R,ZOE.
LEGEND
®
AREA TO HE DEEDED TO THE 0OF
FRESNO
OR PC OFFICIAL RECORDS FRESNO COUNLR
T F.O.N TRUE POINT OF BEGINNING
RR hPOV I CITY OF I
AINT NO ° PORnc
2001 NORTHEAST ONE QUAFF
i.119A
..RE
C-11-126
RECORDED APII IB, zoos.
DOCUMFM NO 39013094
RECORDED
FEBRUARY 7,1939
OPEC.
EQUIP LINE OF TH
SOUTHEAST QUARTER OF
SECTOR 11 T, RS., R.10E.
r — SE'
SCALE IN FEET
0 100 200 400
15-A-9]55
Exhibit I
RECALNIAMNDIFFER CHARGES FOR
TME mPPN PIVEP hat SEMIc[ AREA
NIPW all
Ww Fall
ggxambq
3 6 D
emm Enimam ouawmmeYO Oeoaea 1,
FumVnn
Ppvxyite1240
HNRs FOOD s Be 191 18
3 Z 11
FoR,,,nAa.6oW Ran nm anw Nameled Clac ,elmm COIDat fT.1 Eaaanaked ROD 15297f
itaam'Il lly Cx
CARROOa tall all CON.
(vL,Nadm
5 $Due.
TO DO
f
WI ev mc+lm6 IM ie ON 27902 w
EmmIn ISO 1F,WOmeN 2 i1 11115 %S ON DO
TDOW1 vpwal all SaA6x}af ie
AD 00 3 226,wo W
$ n vu
cmmJa Care AUDI, sob Iivm Enimam w Po EDU elc PoaIEPI
�Fin eaa
s es.eo
mrPTc Flat
oore. Nal m•Oas u• PoEa I. mrel
c�a-mawlmaan•eas• ecollmvxnn-lmExm.,mi
Exhibit J
Exhibit l
Assignment of Reserved Sewer Capacity
For value received, Copper River Development Company, Inc., a California
corporation ("Assignors'), hereby assigns AssignoYs right, title, and Interest in and to
FDus of sewer treatment and disposal rapacity as described In the Transfer
Agreement between Assignor (as "Develops(') and the City of Fresno ("City") dated
November 2008 (the 'Transfer Agreement") and the "Will Serves letter attached to this
Assignment to ("Assignee"). This assignment
is subject to the following provisions of the Transfer Agreement
10. Wastewater Facilities Fees.
10.1 City Regional Wastewater Treatment Facility and other
City Wastewater Facility Fees.
10.1.1
10.1.2 Payment of Modified Wastewater Facility
Fees. Except for approved developments for which Developer and Its
af0liates have previously paid sewer connection and various wastewater
facility fees, Developer shall be responsible at time of pulling building permits
to pay a mopped City wastewater facility fee of $657.50 per EDO ... for any
new development within the Projed Area. Developer will be responsible for
this fee regardless Whether Council ounce It Into the Master Fee Schedule or
otherwise complies with the Mltiga0on Fee Ad (Govt Code 44 66000, at
stel Developer agrees to cooperate In and waive any Fight to object to of
legally challenge any acaon by the Clty to Impose and/or collect the modified
City wastewater facility fee ...
10.1.3 Developer Not Responsible for City
Wastewater Facility Fees In Project Area. If Developer has paid the fee
Identified In Sei 10.1.2 , Developer shall not be responsible for payment
of any Impact fees for the City's Regional Wastewater Treatment and/or
Disposal Facility and other City Wastewater reality Fees for any development
In the Project Area up to Full Build Out of the Project (total of 3,682 EDUs),
After Full Build Out of the Project (3,682 EDUs), the Agreement shall
terminate antl Developer shall be responsible for paying any wastewater
faculty fees required under then current City Ordinances and policies.
10.2 viWTF Impact Fees. Upon execution of this Agreement, for
development in the Project Area, up to Full Build Out Of the Project (3,682
EDU's), Developer shall not be responsible for any fees to pay for any cast of
the W WTF, the Subject property, any disposal faculties (except for completion
of the Golf Course wrestled system and Phase III Pipeline as described
above) and any associated equipment or facilities, including the proposed
expansion thereof. Developer agrees to cooperate In and waive any right to
object to the adoption of any fee the City adopts to recover costs to pay for
the Wi on properties outside of the Project Area _.regardless whether the
Developer owns or acquires property In the proposed fee service area.
10.3 Disposal Fees. Notwithstanding anything to the contrary In
this Agreement, development within the Project Area will be responsible for
payment of supplemental sewer service fees to fund payment of the "DTE
Disposal Fee' contemplated by the Disposal and Delivery Agreement a
provided In the City's Master Fee Schedule to reimburse the City for Its costs
to pay the Disposal Fee to the Golf Course in connection with the operation of
the W W F.
Assignor assign and delegates to Assignee all of Assignor's right and obligations related to
the foregoing previsions of the Transfer Agreement as they relate to any property In the
Project owned by Assignee purchased or otherwise acquired from Assignor. By accepting
this Assignment, Assignee agrees to assume
and perform all duties and obligations that
Assignor has under the Transfer Agreement as they relate to any property In the Project
owned by Assignee purchased or otherwise acpulred from Assignor, as If Assignee had been
an original party to the Transfer Agreement.
This Assignment shall be binding on and shall inure to the benefit of the respective heirs,
devisees, legatees, executors, administrators, trustees, successors, and assigns of the
parties to this Assignment.
This Assignment shall be governed by and constmed In accordance with California law.
Dated:
ASSIGNOR:
ASSIGNEE:
Assignment approved.
CITY OF FRESNO, a Municipal Corporation
By:
Rene A. Ramirez, Director
Public Utilities Department
November i9, 2008 Council Mordon: 11/18/03
TO. MAYOR ALAN AUTRY RECEWEO Mr Urow:
FROM'. REBECCA E. KLISCN, C
2008 NOV 25 PM 1:55 Ove nde Qequert'
City Clerk CITY CLERN. FRESNO CC
SUBJECT. TRANSMITTAL OF COUNCIL ACTION FOR APPROVAL OR VETO
At the Council meeting of 11/18/08, Council took legislative action entitled Auth agrmnt
wlCopper River Dev. Company, Inc, $3,628,221, re: N. Fresno yl Reclamation Facility,
Item No. 9:15 #2 C-1, by the following vote:
Ayes Calhoun, Cana lio, Dages, Duncan. Peres, Sterling
Noes None
Absent Kiong
Abstain None
Please indicate either your formal approval or veto by completing the fallowing sections and
executing and dating your action. Please file the completed memo with the Clark's office on
or before December 1, 2008. In computing the ten day period required by Charter, the first
day has been excluded and the tenth day has been included unless the 1 Oth day is a
Saturday, Sunday, or holiday, in which case it has also been excluded. Failure to file this
memo with the Cleda's once within the required time limit shall constitute approval of the
ordinance, resolution or action, and it shall take effect without the Mayors signed approval.
Thank you
APPROVED:
owing reasons: (Written objections are required by Charter; attach
adds ional sheets if necessary .f
dZillion Date:
Alan Autry, Mayor
COUNCIL OVERRI Date:
Ayes
Noes
Absent
Abstain