HomeMy WebLinkAboutJohn Allen Co 1st Amd El PaseoFIRST ADMINISTRATIVE AMENDMENT TO DEVELOPMENT AGREElVmNT FOR
THE EL PASEO MARKETPLACE PROJECT
(PHASE I OF THE EL PASEO MASTER PLAN PROJECT).
1.On May 24,2012,the City Council of the City of Fresno ("City Council")
approved a Settlement Agreement and Release ("Settlement Agreement")by and between the
City of Fresno and Fresno City Council (collectively,"City")and John Allen Company,LLC
("John Allen"),on the one hand,and The Kashian Group,LTD,Suzanne Lanfranco and Dr.
Joginder S.Matharu,on the other hand.In support thereof,the City Council also approved an
Addendum to the certified Environmental Impact Report (SCH#200801 1003)("Addendum")for
the El Pasco Master Plan Project (T'rojcct"),which was approved by the City Council on
December J 6,2010.The Settlement Agreement settled two lawsuits ("Lawsuits"),Lanfranco.et
01.v.Cit)'of Fresno, et 01.(Fresno County Superior Court Case No.II CECGOOI49)and
Kashian Group,LID.v.City (if Fresno, ct 01.(Fresno Superior Court Case No.I I CECG
(0148),The Lawsuits alleged,on various grounds,that the City'S approval of the Project was
improper.
') The Settlement Agreement,at Sections 6 and 7,sets forth road improvements that
will, or might be,constructed as part of Phase I of the Project ("Road Improvements"),Section
2.1 of the Settlement Agreement provides that the construction of the Road Improvements shall
be deemed conditions of approval of Phase 1.Pursuant to Section 8 of the Settlement
Agreement,the City Council also deleted Project Mitigation Measure ]3-]3,the installation of
two residential traffic circles on Palo Alto Avenue between Hayes and Bryan Avenues ("Traffic
Circles").The City has determined that an administrative amendment,adopted pursuant to
Section 3.3 of the Development Agreement ("Amendment"),is appropriate to implement Section
2.1.. and memorialize the deletion of the Traffic Circles.This Amendment implements the
Settlement Agreement,but does not supersede or limit the Scttlement Agreement or any portion
of it.
3.John Allen's signature on the Settlement Agreement constitutes John Allen's
finding under Section 3,3.1 of the Development Agreement that the Road Improvements and
deletion of the Traffic Circles arc appropriate and its written request that they be effectuated.
4. The following provisions are hereby added to and amend Subsection B of Exhibit
"E"to the Development Agreement.In the event of a conflict with all or any portion of existing
Subsection 13,the provisions of this Amendment shall control.
" 45.Improvemcnt of Bryan Avenue.As a part of construction of Phase
I of the Project and prior to the City issuing a certificate of occupancy for any
portion of Phase I, the following road improvements shall be completed as set
forth below:
45.1.West Herndon to Southern Phase I Boundary,Improve or
construct Bryan Avenue from West Herndon Avenue to the southern boundary of
Phase J,as detailed in the Project's original conditions of approval,except as to
timing of the improvements.Construction of this portion of Bryan Avenue is an
exisung condition of Phase I and is only mentioned in this Section 45.1 to
establish that with the other road improvements described in this Section 45, a
"looped"road will encircle the existing neighborhood following construction of
the Bryan Avenue improvements.
45.2 Southern Phase I BQ,llldary to Veterans Boulevard.
Improve or construct Bryan Avenue from the southern boundary of Phase I to
Veterans Boulevard.One travel lane shall be constructed in each direction and a
median shall be constructed pursuant to current City standards,including the
installation of concrete curbs on each side of the median.The median may be dirt
and shall not be required to have landscaping.Median curbs and asphalt paving
shall be constructed to Fresno Metropolitan Flood Control District (FMFCD)
master-planned grades.The Bryan Avenue raised median island shall be
constructed to accommodate a future two-hundred and fifty foot (25()')
southbound left turn pocket at Veterans Boulevard.In order that the median
island and paving be designed to accommodate the ultimate intersection
improvements,the intersection shall be designed conceptually 10 accommodate
six travel lanes on Veterans Boulevard,four travel lanes on Bryan Avenue,dual
left turn lanes on each approach and a separate right turn pocket for each
approach,utilizing City standard lane widths.Only the median island and a
seventeen foot (l T)travel lane in each direction shall be required to be installed
to satisfy this Section 45.2.
45.3 Veterans Boulevard to North Haycs Avenue.Improve or
construct Veterans Boulevard from Bryan Avenue to North Hayes Avenue.One
travel lane shall be constructed in each direction and a median shall be
constructed pursuant to current City standards,including the installation of
concrete curbs on each side of the median.The median may be dirt and shall not
be required to have landscaping.The Veterans Boulevard raised median island
shall be constructed to accommodate a future two-hundred fifty foot (250')
westbound left turn pocket at Bryan A venue.In order that the median island and
paving may be designed to accommodate the ultimate intersection improvements,
the intersection conceptually shall be designed to accommodate six (6) travel
lanes on Veterans Boulevard,four (4) travel lanes on Bryan Avenue,dual left
turn lanes on each approach and a separate right turn pocket for each approach,
utilizing City standard lane widths. Only the median island and a seventeen foot
(17')travel lane in each direction shall be required to be installed to satisfy this
Section 45.3.
46.Additional Road Inll?LQ-".em'!.!lls.The improvements in Sections
47 and 48,below,shall be constructed in accordance with the terms and
conditions specified therein.It is intended that these improvements be
constructed prior to the City'S issuance of any certificate of oeeupancy for any
building within Phase J.
47.Right Turn Lane at Wes.t Herndon and North Hayes Avenue.A
right hand turn lane shall be installed at the southeast corner of the intersection at
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West Herndon Avenue and North Hayes Avenue,It is understood that John
Allen does not own or control the real property necessary for this improvement.
John Allen or its Transferee(s)pursuant to Section 12 of this Development
Agreement ("Dcvcioper"),shall use reasonable efforts to acquire the necessary
right-of-way at a cost not to exceed Twenty-five Thousand Dollars ($25,000,00),
For the purpose of determining whether Developer's cost to acquire such right-
of-way exceeds Twenty-five Thousand Dollars ($25,000,00),the cost of the
right-of-way shall be the acquisition payment to the property owner and shall not
include any ancillary costs, If Developer is able in the exercise of reasonable
efforts to acquire the necessary right-of-way for a cost not to exceed Twenty-five
Thousand Dollars ($25,000,00),Developer shall construct a right turn lane at the
intersection of West Herndon and North Hayes Avenues,
47,1. If at such time as Developer seeks a certificate of
occupancy for any portion of Phase I,Developer has been unable to acquire the
necessary right-of-way,Developer shall deposit Twenty-Five Thousand Dollars
($25,000,00) with the City's Public Works Department,or other Department
specified by the City ("the First Deposit")to be held for five (5) years and
earmarked for construction of the right turn lane,The City is under no obligation
to exercise its power of eminent domain or otherwise acquire the necessary right-
of-way and is under no obligation to undertake or complete construction of this
improvement.However,nothing in this Section 47,1 shall preclude the City, at its
sole option, from consuucting a right turn lane at the intersection of West
Hemdon and North Hayes Avenues and applying the First Deposit toward the
costs of construction.If within the five (5) year time frame the right turn lane is
installed as a result of a eondition of approval of a CEQA-reviewed development,
the installing party will have one (l)year from acceptance of the improvement to
submit a claim for reimbursement from the City for up to Twenty-five Thousand
Dollars ($25,000,00),After the five (5) year time frame the installing party may
also install and submit a claim for reimbursement from the City any amounts
remaining from the First Deposit,provided the First Deposit has not been
released as described in Section 47.3 at the time the request for reimbursement is
accepted as complete by the City, Any reimbursement may be offset by fee
credits which may already been credited by the City to the installing party,
47,2, If a right turn lane at the intersection of West Herndon
and North Hayes Avenues has been fully constructed,and the cost of
construction is less than the First Deposit or the time for reimbursement has
expired, any remaining money from the First Deposit may be spent by the City
on public improvements within a Y2 mile radius from the intersection of West
Herndon and North Hayes Avenues,
47,3. If a right tum lane at the intersection of West Herndon
and North Hayes Avenues has not been fully constructed within the five (5)year
lime frame from the date of deposit, the First Deposit may be released from the
dedicated account and spent by the City on public improvements within a Y2 mile
radius of the intersection of Hayes/Herndon Avenues,Provided,however, the
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First Deposit may be released for this purpose only if the City Engineer finds
either that (i)the improvement is not reasonably necessary;or (ii) the
improvement is not reasonably feasible.The City shall give written notice
mailed to the following address at least fourteen (14) days prior to making a
finding for the release of the First Deposit;Michael P. Slater, Esq.,7522 N.
Colonial Avenue,Suite 100,Fresno,CA 93711.
47.4.If any portion of the First Deposit is held by the City
longer than the initial five (5) year time frame, at its sole option the City can
recover employee time and costs incurred for administration of the fund and
deduct those costs from any reimbursement or the costs of public improvements
within a '12 mile radius of West Herndon and North Hayes Avenues.
48.Crosswalk and Asphalt Path.Developer shall install an
approximately four foot (4')wide and four inch (4") thick asphalt path from the
cast side of Veterans Boulevard to the Palo Alto/North Hayes intersection along
the east side of North Hayes Avenue and install a standard crosswalk at Palo Alto
and North Hayes Avenues. It is understood that Developer docs not own or
control the real property necessary for this improvement.Developer shall usc
reasonable efforts to acquire the rights-of-way necessary to install the asphalt
path and standard crosswalk at a cost not to exceed Twenty-five Thousand
Dollars ($25,OOO'()O).For the purpose of determining whether the cost to acquire
such rights-of-way exceeds Twenty-five Thousand Dollars ($25,000.00),the cost
shall be the acquisition payment to the property owner and shall not include any
ancillary costs. If Developer is able in the exercise of reasonable efforts to
acquire the necessary rights-of-way,at a cost not to exceed Twenty-five
Thousand Dollars ($25,000.00),Developer shall construct a standard crosswalk
and install an approximately four foot (4')wide and four inch (4") thick asphalt
path within the limits described in this Section 48. The City shall issue any
permit necessary for construction of the asphalt path in the dimensions described
in this Section 48.
48.1. If at such time as Developer seeks a certificate of
occupancy for any portion of Phase I,Developer has been unable to acquire the
necessary rights-or-way,Developer shall deposit Twenty-five Thousand Dollars
($25,000.00)("the Second Deposit")with the City's Public Works Department.
or other Department specified by the City, to be held and earmarked for
installation of the asphalt path in the dimensions set forth in this Section 48 and
the standard crosswalk.The City is under no obligation to exercise its power of
eminent domain or otherwise acquire the necessary rights-of-way and is under no
obligation to undertake or complete construction of either the standard crosswalk
or asphalt path.However,nothing in this Section 48.1 shall preclude the City, at
its sole option,from constructing the standard crosswalk or asphalt path and
applying the Second Deposit toward the costs of construction.If within the five
(5) year time frame the improvements are installed under an obligation to
improve this intersection in this manner as a result of a condition of approval of a
CEQA-reviewed development,the installing party will have one year from
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acceptance of the improvement to submit a claim for reimbursement from the
City for up to Twenty-five Thousand Dollars ($25,000.00).After the five (5) year
time frame the installing party may also install and submit a claim for
reimbursement hom the City any amounts remaining from the Second Deposit,
provided the Second Deposit has not been released as described in Section 4X.3
at the time the request for reimbursement is accepted as complete by the City.
Any reimbursement may be offset by fee credits which may already have been
credited by the City to the installing party.
4X.2.If the crosswalk and asphalt path have been fully
constructed,and the cost of construction is less than the Second Deposit or the
time for reimbursement has expired,any remaining money from the Second
Deposit may be spent by the City on public improvements within a \/2 mile radius
from the intersection of West Herndon and North Hayes Avenues.
4X.3.If the crosswalk and asphalt path have not been hilly
constructed within the five (5) year time frame hom the date of deposit,the
Second Deposit may be released hom the dedicated account to be spent on public
improvements within a 1/2 mile radius of the intersection at Hayes and Herndon
Avenues.Provided,however,that the Second Deposit may only be released for
this purpose if the City Engineer finds either that (i) the improvements are not
reasonably necessary;or (ii)the improvements are not reasonably feasible. The
City shall give written notice mailed to the following address at least fourteen
(14) days prior to making a finding for the release of the First Deposit: Michael
P. Slater, Esq., 7522 N.Colonial Avenue, Suite 100, Fresno, CA 93711.
4XA.If any portion of the Second Deposit is held by the City
longer than the initial five (5) year time frame, at its sole option the City can
recover employee time and costs incurred for administration of the fund and
deduct those costs from any reimbursement or the costs of public improvements
within a \/2 mile radius of West Herndon and North Hayes Avenues."
5. TIle installation of the Traffic Circles is required pursuant to Exhibit "E",
Subsection 13,Number X,of the Development Agreement.That provision is hereby deleted from
the Development Agreement.
6. The Road Improvements and deletion of the Traffic Circles are Minor Changes
under Section 3.3.2 of the Development Agreement,including,without limitation,because they:
a. Are minor deviations to the Phase I approvals that are permitted under the
Existing City Requirements (as defined in the Development Agreement),found to be reasonable
by the Planning Manager,and required by the City Council through approval of the Settlement
Agreement;
b. Have been determined by the Planning Manager to be consistent with the
overall intent of the Phase I approvals and not materially altering the overall nature, scope or
design of the Phase I approvals;
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c .Do n ot in crea se th e agg regat e tot a l d e n si ty and int ensi ty o f Ph as e I ;
d .D o n ot mod ify t he p e rmitt ed u se s from t ho s e in th e Ph ase I a pprovals ;a nd
c.A s found in t h e A d dendum ,none o f th e co ndition s in Pub lic R es ourc es
Co d e S ec t io n 2 1 16 6 and 14 C al.Co d e R egs.Se ct ion 151 62 ha ve o cc urred ;t he refore ,no
s ubs e quent or supplementa l en viro nmental im pact r eport is r equired .
7 .Ba s ed on a ll o f th e f orego in g,th is A m en dme nt is a mini ste ria l clarification and
a dj us t ment und er Se ct ion 3 .3.3 o f the D eve lopment A g re ement.
D at e :!fI 'J..ct!;).1)/if
C ITY O F FRESNO
B y:
Mark S cott
Its:C ity M anag er
A PPROVED A S T O F ORM :
J AMES C. S ANC H EZ
C ity A ttorne y
t y
Da te:G4 =/l f2-
Date:6/2 2..-//?---7 I
JOH N AL LE N COMPANY ,LL C
By:~L:...+-_
l oh li en
Its :'anaging M emb er
I S EE ATTAC~ED C E~T1 F IC A T E I
A PP ROVED AS T O FORM :
T AMAR C.STEIN
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T:.'l1afC:Srein
At torn eys for J ohn A llen C o m pany LLC
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STATE OF CALIFO RNIA
COUNTY OF LOS ANGEL ES
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)ss:
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O n Ju ne 22, 20 12 b efore me,Ravindes Shalla.NO l8:\\.,,6l1 11re insert name of the officer),Notary
Pub lic,per so nally a ppeared ;;}O"",,,,,,~~• •,wh o p ro ved to
me on th e basis of satisfac tory e vidence to be the person(tr whose nam e (~is/ase.s ubscribcd to
the w ith in instrum ent and ackn owledged to m e that h e /s ~y exe c ute d the same in
h i s ~i r a uthorized eapae i ty(~a nd th at by hi s ~r s i g n a t u r e (~on the instrument the
per so n(,q,or the e ntity u pon behalf of wh ich the pcrso nts)acte d , execu ted the in strument.
I certify under PENA LTY OF PE RJURY und er the law s of the Stat e of Ca lifornia that the
foregoing para graph is true and correct.
WITNESS m y hand and official se al.
S ignature of Notar y Pub lic
[Seal ]
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CLERK'S CE RTI FICATION
S tat e of California )
Co unty o f Fr esno )
On r ~q /OlO/~b efore me,$'Jet n ~L.fuderfscbec ,p er sonally
appea red,0..(K 'i)C.o1t er,wh o proved to m e on t he b a sis o f s at isfacto r y ev idenc e,to
be thc person(s )whose nam e s)is/are s ubsc r ibed to the within in st rument and ack no wledged to
me that h e/sh e/th ey exec uted th e same in h is/h er/their authorized ca pacity(ies),a nd that b y
hi s/h er/t he ir signature(s)o n t he instrum ent the pe rso n(s).o r t he e ntit y u pon beha lf of which th e
person(s)act ed, executed the instrume nt .
I ce rtify und er PENALTY OF PERJURY finder the low s of the S tate of California that th e
f oregoing paragraph is true and c orrect.
WITNESS my hand and official sea l
YVONNE S PENCE,CMC
Ci ty C le rk , C ity of Fres no
B y J~~
Deput y
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