ITEM 4. 10
CITY MANAGER' S REPORT
JULY 10, 2023 CITY COUNCIL REGULAR MEETING
ITEM: APPROVE WASTEWATER TREATMENT
CAPACITY TRANSFER FROM SOUTH LATHROP
LAND, LLC TO D. R. HORTON, INC. THROUGH
TH E CITY
RECOMMENDATION: Adopt Resolution Approving the Transfer of Wastewater Treatment Capacity in the
Consolidated Treatment Facility from South
Lathrop Land, LLC to D. R. Horton, Inc. through
the City and an Associated Transfer Agreement
SUMMARY:
On October 10, 2022, City Council approved Vesting Tentative Map 22- 100 for 95 medium- density residential lots in the Mossdale Landing South Specific Plan Project") with associated Conditions of Approval. D. R. Horton, Inc. (" DR Horton"), the developer for the Project, is required to secure sufficient wastewater capacity prior to the approval of a final map to satisfy the Conditions of Approval. South Lathrop Land, LLC (" SLL") has unused wastewater capacity and has agreed to sell it to DR Horton with the City acting in its capacity as the intermediary for the transfer.
Staff recommends Council approve the requested transfer of wastewater treatment capacity and authorize the City Manager to execute the Wastewater Treatment Capacity Transfer Agreement (" Transfer Agreement").
BACKGROUND:
In November 2016, the City and several developers entered into a Design and Construction Funding Agreement Related to the Phase 2 Expansion of Existing Lathrop Consolidated Treatment Facility (" CTF 2 Agreement", Exhibit A of Attachment B). The CTF 2 Agreement assigned sewer allocation in two categories, Initial Capacity and Reserve Capacity, with use of the Initial Capacity being immediately available and the Reserve Capacity being subject to demonstration of need.
On November 21, 2016, Richland Developers, Inc. ( Richland") entered into the CTF 2 Agreement, whereby the City allocated 114, 000 gallons per day (" gpd") in Initial Wastewater Treatment Capacity, and 41, 455 gpd of Reserve Wastewater Treatment Capacity to Richland. On May 12, 2018, the capacity was transferred to SLL based on SLL' s acquisition of the South Lathrop Commerce Center Property from Richland, and Richland' s transfer of their rights to the CTF as documented in the transfer of the Funding Agreement between SLL and Richland (" Funding Agreement"), as adopted by the City Ordinance No. 18- 390.
CITY MANAGER' S REPORT PAGE 2
ULY 10, 2023 CITY COUNCIL REGULAR MEETING
APPROVE WASTEWATER TREATMENT CAPACITY TRANSFER FROM SLL, LLC TO D. R. HORTON, INC. THROUGH THE CITY
On October 10, 2022 City Council approved a Vesting Tentative Map 22- 100 for 95 medium- density residential lots in the Project and the associated Conditions of Approval which require the developer, DR Horton, to secure sufficient wastewater capacity prior to approval of a final map. DR Horton anticipates presenting a final map for City Council approval in August 2023 and is required to secure 17, 100 gpd of wastewater capacity for the Project.
The purchase price has been established by the City in accordance with the Funding Agreement as $ 29. 98/ gpd, and so the purchase price for a total of 17, 100 gpd is agreed by DR Horton to equal $ 512, 658. DR Horton is required to allocate the wastewater capacity to a project by processing a final map within one year of the approval of the Transfer Agreement or sell the capacity back to the City at the original price of $ 29. 98/ gpd.
The Public Works Director has confirmed that the requested transfer is consistent with the City' s General Plan, Sewer Master Plan, and Zoning Ordinance. The Public Works Director and the City Engineer recommend City Council approve the application for sewer transfer and authorize the City Manager to execute the Transfer Agreement.
REASON FOR RECOMMENDATION:
The Public Works Director has confirmed that the requested Transfer Agreement is consistent with the City' s General Plan, Sewer Master Plan and Zoning Ordinance.
The Public Works Director and the City Engineer recommend City Council approve the sewer transfer and authorize the City Manager to execute the Transfer Agreement, approved as to form by the City Attorney, with the applicant. In accordance with the Transfer Agreement, DR Horton shall make payment in full within ten ( 10) days after the date when the City Council approves the Final Map. At the time of receipt of payment, City will transfer the treatment capacity to DR Horton and the funds to SLL.
FISCAL IMPACT:
No fiscal impacts are associated with this action.
ATTACH M ENTS:
A. Resolution Approving the Transfer of Wastewater Treatment Capacity in the Consolidated Treatment Facility from South Lathrop Land LLC, to D. R. Horton Inc., through the City and an Associated Transfer Agreement B. Wastewater Treatment Capacity Transfer Agreement from SLL to the City and from City to DR Horton
CITY MANAGER' S REPORT PAGE 3
7ULY 10, 2023 CITY COUNCIL REGULAR MEETING
APPROVE WASTEWATER TREATMENT CAPACITY TRANSFER FROM SLL, LLC TO D. R. HORTON, INC. THROUGH THE CITY
APPROVALS
3 Brad ylor Date
City Engineer
fe c o Z+ fZoZ3
Cari James Date
Finance Director
6/ 28 Ze 23
Mich I King Date
Assistant City Manager
Z- 4s- t.0 Z.
Salvador Navarrete Date
City Attorney
7'S•7i
Stephen J. Salvatore Date
City Manager
RESOLUTION NO. 23-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LATHROP
APPROVING THE TRANSFER OF WASTEWATER TREATMENT CAPACITY IN
THE CONSOLIDATED TREATMENT FACILITY FROM SOUTH LATHROP LAND, LLC TO D. R. HORTON, INC. THROUGH THE CITY AND AN ASSOCIATED
TRANSFER AGREEMENT
WHEREAS, on November 21, 2016, the City and several developers entered into a Design and Construction Funding Agreement Related to the Phase 2 Expansion of Existing Lathrop Consolidated Treatment Facility ( CTF 2 Agreement"); and WHEREAS, the CTF 2 Agreement assigned sewer allocation in two categories, Initial Capacity and Reserve Capacity, with use of the Initial Capacity being immediately available and use of the Reserve Capacity being subject to demonstration of need; and
WHEREAS, Richland Developers, Inc. (" Richland") was one of the developers that entered into the CTF 2 Agreement, whereby the City allocated 114, 000 gallons per day (" gpd") in initial wastewater treatment capacity, and 41, 455 gpd of reserve wastewater treatment capacity to Richland; and
WHEREAS, on May 12, 2018, the capacity was transferred to South Lathrop Land, LLC ( SLL") based on SLL' s acquisition of the South Lathrop Commerce Center Property from Richland, and Richland' s transfer of their rights to the CTF as documented in the transfer of the Funding Agreement between SLL and Richland Funding Agreement"), as adopted by the City Ordinance No. 18- 390; and WHEREAS, on October 10, 2022 City Council approved a Vesting Tentative Map 22- 100 for 95 medium density residential lots in the Mossdale Landing South Specific Plan (" Project") and the associated Conditions of Approval require the developer, D. R. Horton, Inc. (" DR Horton"), to secure sufFicient wastewater capacity prior to approval of a final map. DR Horton anticipates presenting a final map for City Council approval in August 2023 and is required to secure 17, 100 gpd of wastewater capacity for the Project; and
WHEREAS, the purchase price has been established by the City in accordance with the Funding Agreement as $ 29. 98/ gpd, and so the purchase price for a total of 17, 100 gpd is agreed by DR Horton to equal $ 512, 658; and WHEREAS, DR Horton is required to allocate the wastewater capacity to a project by processing a final map within one year of the approval of the Wastewater Treatment Capacity Transfer Agreement (" Transfer Agreement") or sell the capacity back to the City at the original price of $ 29. 98/ gpd; and WHEREAS, the Public Works Director has confirmed that the requested transfer is consistent with the City' s General Plan, Sewer Master Plan, and Zoning Ordinance, and the Public Works Director and the City Engineer recommend City Council approve the application for sewer transfer and authorize the City Manager to execute the Transfer Agreement; and
NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Lathrop does hereby approve the transfer from South Lathrop Land, LLC ( SLL) to the City and the City' s transfer to D. R. Horton, Inc. of 17, 100 gpd in Wastewater Treatment Capacity in the Consolidated Treatment Facility, pursuant to the terms of the Transfer Agreement; and
BE IT FURTHER RESOLVED, that the City Council of the City of Lathrop does hereby approve the Transfer Agreement and authorize the City Manager to sign documents necessary to implement the terms of the same to document the transfer from SLL to the City of 17, 100 gpd in Wastewater Treatment Capacity in the Consolidated Treatment Facility the immediate transfer of the same capacity from the City to DR Horton.
PASSED AND ADOPTED by the City Council of the City of Lathrop this lOtn day of) uly 2023, by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
Sonny Dhaliwal, Mayor
ATTEST: APPROVED AS TO FORM:
Teresa Vargas Salvador Navarrete
City Clerk City Attorney
ATTACHMENT
H
RECORDING REQUESTED BY AND
AFTER RECORDING MAIL TO:
CITY OF LATHROP
ATTN: CITY CLERK
390 TOWNE CENTRE DRIVE
LATHROP, CA 95330
No Fee Document
Space above this line reserved for recorder' s use
APN' s:
241- 030- 18, 19, 20, 21, 22, 23, 45, 46, 47, 48
WASTEWATER TREATMENT CAPACITY
TRANSFER AGREEMENT
THIS WASTEWATER TREATMENT CAPACITY TRANSFER AGREEMENT ( the Agreement"), is made this day of 2023 (" Effective Date"), by and between South Lathrop Land, LLC a Delaware limited liability company, TriPoint Building 3, LLC, a Delaware limited liability company, TriPoint Building 5, LLC, a Delaware limited liability company, TriPoint Building 6, LLC, a Delaware limited liability company, TriPoint Building 7, LLC, a Delaware limited liability company, collectively hereinafter referred to as "SLL", D. R. Horton Bay, Inc., a Delaware corporation, hereinafter referred to as " DR Horton" and the City of Lathrop, a municipal corporation in the State of California, hereinafter referred to as " City". Hereinafter all parties may be referred to collectively as " Parties" or individually as a " Party".
RECITALS
WHEREAS, SLL owns the South Lathrop Commerce Center (SLCC) parcels designated with APNs 241- 030- 18, 19, 20, 21, 22, 23, 45, 46, 47, and 48 in the City of Lathrop, California, SLCC Property") where it is the developer of industrial and commercial properties pursuant to the South Lathrop Specific Plan (" SLL Project"); and
WHEREAS, on November 21, 2016, Richland Developers, Inc. entered into the Design and Construction Funding Agreement Related to the Phase 2 Expansion of the Existing Lathrop Consolidated Treatment Facility with the City ("CTF 2 Agreement") attached hereto as Exhibit A.
The CTF 2 Agreement states that the City allocated 114, 000 gallons per day (" gpd") in Initial Wastewater Treatment Capacity, and 41, 455 gpd of Reserve Wastewater Treatment Capacity to Richland Developers, Inc; and
WHEREAS, SLL acquired the SLCC Project from Richland Developers, Inc., and Richland Developers, Inc.' s transfer of all of their rights to the Phase 2 Expansion of the Existing Lathrop Consolidated Treatment Facility as documented in the Transfer Agreement Relating to Design and Construction Funding Agreement For The Phase 2 Expansion of the Lathrop Consolidated Treatment Facility between SLL and Richland Developers Inc. as adopted by the City Ordinance No. 18- 390 and as approved by the City and recorded by the San Joaquin County Recorder' s Office as Doc# 2018- 047863 on May 1, 2018, attached hereto as Exhibit B ( Funding Agreement).
SLL became and now is the successor in interest to all of Richland Developers, Inc.' s rights contained within the CTF 2 Agreement; and
WHEREAS, on September 14, 2020, 41, 455 gpd of Reserve Wastewater Treatment Capacity was transferred from SLL to Saybrook CLSP, LLC with the Reserve Wastewater Treatment Capacity Transfer Agreement recorded by the San Joaquin County Recorder' s Office as Doc # 2020- 126204; and
WHEREAS, on October 10, 2022 City Council approved a Vesting Tentative Map 22- 100 to create 95 medium density residential lots in the Mossdale Landing South Specific Plan Project") and the associated Conditions of Approval required the developer, DR Horton, to secure sufficient wastewater capacity prior to approval of a final map. DR Horton anticipates presenting a final map for the Project (" Final Map") for City Council approval in August 2023 and is required to secure 17, 100 gpd of wastewater capacity for the Project; and WHEREAS, the purchase price has been established by the City in accordance with the Funding Agreement as $29. 98/ gpd, and so the purchase price for a total of 17, 100 gpd is agreed by DR Horton to equal $ 512, 658; and
WHEREAS, SLL recognizes the benefits to its own project and to the long term development goals of City for SLL to support the DR Horton Project and therefore wishes to transfer to DR Horton, and DR Horton wishes to accept, 17, 100 gpd of Wastewater Treatment Capacity previously allocated to SLL under the CTF 2 Agreement; and WHEREAS, the Public Works Director has confirmed that the requested transfer is consistent with the City' s General Plan, Sewer Master Plan, and Zoning Ordinance, and the Public Works Director and the City Engineer recommend City Council approve the application for sewer transfer and authorize the City Manager to execute this Agreement, approved by the City Attorney, with the applicant; and
WHEREAS, consistent with Schedule 3 of the CTF 2 Agreement, SLL has filed an application with the City to effectuate the transfer contemplated in this Agreement, and that application took the form of this Agreement. This Agreement, which shall be approved as to form by the City Attorney, constitutes the agreement required by the City pursuant to Schedule 3 of the CTF 2 Agreement. Schedule 3 of the CTF 2 Agreement is attached hereto in Exhibit A.
NOW TNEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS:
1. Allocation of Wastewater Treatment Capacitv. SLL agrees to transfer to the City 17, 100 gpd of Wastewater Treatment Capacity previously allocated to SLL in the CTF 2 Agreement and reflected on Exhibit C to the City within ten ( 10) business days after the City Council approval of this transfer and Agreement. This will leave SLL with 96, 900 gpd of Wastewater Treatment Capacity. The Wastewater Treatment Capacity transferred as part of this Agreement shall be allocated first to City for transfer to DR Horton once the requirements of this Agreement are satisfied. If DR Horton does not fund and proceed with this transfer, the City agrees to return the Wastewater Treatment Capacity to SLL.
2. Pavment for Allocation of Wastewater Treatment Capacitv. tn exchange for SLL' s transfer of Wastewater Treatment Capacity pursuant to this Agreement to the City, DR Horton agrees to pay to City $ 512, 658, or $ 29. 98 for each gpd of Wastewater Treatment Capacity transferred pursuant to this Agreement. Payment shall be made in full prior to the recordation of the first Final Map for the DR Horton Project. At the time of receipt of payment from DR Horton, City will transfer the 17, 100 gpd of Wastewater Treatment Capacity to DR Horton and the funds to SLL. Upon transfer, DR Horton shall have full ownership and use of 17, 100 gpd of SLL' s Wastewater Treatment Capacity.
3. Aqreement Continqent on Citv' s Approval of Transfer of Wastewater Treatment Capacitv and Final Map. The obligations in this Agreement are contingent on the City Council' s approval of ( a) the transfer and this Agreement pursuant to the procedure outlined in Schedule 3 of the CTF 2 Agreement and ( b) the Final Map for the DR Horton Project. In the event that the Lathrop City Council denies the transfer and this Agreement or the Final Map for the DR Horton Project, SLL shall have no further obligation to transfer Wastewater Treatment Capacity to DR Horton under this Agreement, and the Agreement shall have no further binding effect on the Parties. The City also confirms that SLL and DR Horton has fulfilled all of their obligations under the CTF 2 Agreement, no amounts are owed, and no event of default exists.
4. DR Horton' s Obliqation to Obtain Proiect Approvals Within One Year of Citv Approval of Wastewater Treatment Capacitv Allocation. Consistent with the requirements in Schedule 3 of the CTF 2 Agreement, DR Horton shall obtain City approval of the Final Map for the DR Horton Project within one year from the City' s approval of the transfer and Agreement.
Unless the City Council approves an alternative time limit, if DR Horton fails to obtain said approval of the Final Map within the timeframe in this paragraph, this Agreement shall be void and the 17, 100 gpd of Wastewater Treatment Capacity will be returned to SLL by the City.
5. Mutual Hold Harmless / Indemnification. Each Party shall hold each other Party harmless, and defend, and indemnify each other Party, its officers, employees, consultants, and agents from and against any and all claims, suits, causes of action, or other proceedings for damages, injuries, losses, costs ( including attorneys' fees and costs of suit or other dispute resolution processes), or any other liability arising out of, the performance, or failure to perform, any of the duties and obligations set forth in this Agreement. The duty to defend shall include provision for all costs and fees, including attorneys' fees, associated with such defense.
6. No Partnership. It is not the purpose or the intention of this Agreement to create, and this Agreement shall not create, a joint venture, partnership, or other relationship whereby either Party would be liable for the omissions, commissions, or performance of the other Party.
7. Further Assurance. The Parties shall execute and deliver such further instruments and do further acts and things as may be required to carry out the intent and purposes of this Agreement as may be reasonably requested by any Party.
8. Force Maieure. With respect to the matters contemplated by this Agreement, no Party shall be liable or responsible to the other as a result of any injury to property or as a result of inability to provide capacity, which was caused by any Force Majeure event.
9. Governinq Law. This Agreement shall be governed and construed in accordance with the laws of the State of California.
10. Assiqnment. No Party may assign its rights under this Agreement to any person, entity, or governmental or quasi-governmental body without the prior written consent of the other Parties.
11. Entire Apreement / Amendment. This Agreement including the recitals, which are incorporated by this reference, contains the entire Agreement between the Parties regarding the Wastewater Transfer between the Parties. No change or modification of this Agreement shall be valid unless the same is an amendment, in writing, signed by both Parties.
12. Recordation of Aqreement. Consistent with the requirements of Schedule 3 of the CTF 2 Agreement, City shall cause this fully executed Agreement to be recorded in the San Joaquin County Recorder' s Office within thirty ( 30) days after the City Council approves the transfer and this Agreement.
13. Exhibits. The Exhibits referenced and included in the Agreement are as follows:
Exhibit A: Design and Construction Funding Agreement Related to the Phase 2 Expansion of the Existing Lathrop Consolidated Treatment Facility with the City (" CTF 2 Agreement"), dated November 21, 2016
Exhibit B: Transfer Agreement Relating to Design and Construction Funding Agreement For The Phase 2 Expansion of the Lathrop Consolidated Treatment Facility between SLL and Richland Developers Inc. as adopted by the City Ordinance No. 18- 390 and as approved by the City and recorded ( Doc# 2018- 047863), recorded May 1, 2018 Exhibit C: Reallocation form to reflect the Reallocation of Wastewater Treatment Capacity from SLL to the City.
Exhibit D: Reallocation form to reflect the transfer of the Wastewater Treatment Capacity from the City to DR Horton.
IN WITNESS WEREOF, the parties have caused their respective duly authorized representatives to execute this Agreement as of the Effective Date above.
Signatures on Next Page]
South Lathrop Land, L.L.C.,
a Delaware limited liability company
By: CHI West 109 South Lathrop Land, L.P.,
a Delaware limited partnership,
its managing member
By: CHI LTH GP, L. L. C.,
a Delaware limited liability company,
its general partner
By:
Philip J. Prassas
Vice President
TriPoint Building 3, L. L. C.,
a Delaware limited liability company
By: TriPoint Phase I Venture, L. L. C.,
a Delaware limited liability company,
its sole member
By: CHI West 114 TriPoint Phase I, L. L. C.,
a Delaware limited liability company,
its managing member
By: CHI West 109 South Lathrop Land, L. P.,
a Delaware limited partnership,
its sole member
By: CHI LTH GP, L. L. C.,
a Delaware limited liability company,
its general partner
By:
Philip J. Prassas
Vice President
TriPoint Building 5, L. L. C.,
a Delaware limited liability company
By: TriPoint Phase I Venture, L. L. C.,
a Delaware limited liability company,
its sole member
By: CHI West 114 TriPoint Phase I, L. L. C.,
a Delaware limited liability company,
its managing member
By: CHI West 109 South Lathrop Land, L. P.,
a Delaware limited partnership,
its sole member
By: CHI LTH GP, L. L. C.,
a Delaware limited liability company,
its general partner
By:
Philip J. Prassas
Vice President
TriPoint Building 6, L. L. C.,
a Delaware limited liability company
By: TriPoint Phase I Venture, L. L. C.,
a Delaware limited liability company,
its sole member
By: CHI West 114 TriPoint Phase I, L. L.C.,
a Delaware limited liability company,
its managing member
By: CHI West 109 South Lathrop Land, L. P.,
a Delaware limited partnership,
its sole member
By: CHI LTH GP, L. L. C.,
a Delaware limited liability company,
its general partner
By:
Philip J. Prassas
Vice President
TriPoint Building 7, L. L. C.,
a Delaware limited liability company
By: TriPoint Phase I Venture, L. L. C.,
a Delaware limited liability company,
its sole member
By: CHI West 114 TriPoint Phase I, L. L. C.,
a Delaware limited liability company,
its managing member
By: CHI West 109 South Lathrop Land, L. P.,
a Delaware limited partnership,
its sole member
By: CHI LTH GP, L. L. C.,
a Delaware limited liability company,
its general partner
By:
Philip J. Prassas
Vice President
OWNER:
D. R. Horton Bay, Inc.
a Delaware corporation
By:
Chris Zaballos, Vice President
CITY:
CITY OF LATHROP, a
Municipal Corporation of the
State of California
By: Stephen J. Salvatore
Its: City Manager
ATTEST:
City Clerk of and for the City
By: Teresa Vargas
Its: City Clerk
APPROVED AS TO FORM BY THE
CITY OF LATHROP CITY ATTORNEY:
By: Salvador Navarrete
Its: City Attorney
E WIBIT', g,_..
DESIGN AND CONSTRUCTION FUNDING AGREEMENT
RELATED TO THE PHASE 2 EXPANSION OF THE EXISTING LATHROP CONSOLIDATED TREATMENT FACILITY (" LCTF")
This Design and Construction Funding Agreement ( the " Aqreement") is made and entered into as of November , 2016 (" Effective Date"), by and between the CITY OF LATHROP, a municipal corporation (" CITY"), RIVER ISLANDS DEVELOPMENT, LLC, a California limited liability company (" RID"), RICHLAND DEVELOPERS, INC., a Delaware corporation ("RDI"), SAYBROOK CLSP, LLC, a Califomia limited liability company(" Savbrook"), and LATHROP MOSSDALE INVESTORS, LP, a Califomia limited partnership (" LMI")( excluding CITY, collectively, " DEVELOPERS"). DEVELOPERS and CITY are referred to herein, individually as" pa' and collectively as the " a
rties."
RECITALS
A. The CITY currently operates the existing LCTF with a flow capacity of 1. 0 million gallons per day, or" MGD" in accordance with Waste Discharge Requirements R5- 2016- 0028 approved by the Central Valley Regional Water Quality Control Boa d ( the" ReQional Board") on April 21, 2016 ( the " VUDRs"). Pursuant to the WDRs, the CITY may add new sprayfields and construct additional recycled water storage ponds in accordance with the requirements of the WDRs with approval of the technical reports submitted to the Executive Officer. The CITY also adopted a CEQA Addenda for the incremental increase of up to 3.0 MGD in treatment capacity, raising the total anticipated treatment capacity to approximately 9. 1 MGD. Minor revisions to the WDRs regarding new state water quali#y standards and a new minimum increment for expansion of disposal areas required for the LCTF are expected to be considered by the Regional Board in fall, 2017. New CEQA reyiew is not expected to be required for the revised WDRs.
B. The parties desire to expand the existing LCTF to process up to 2. 5 MGD of treatment capacity by adding a total of 1. 5 MGD to the existing LCTF (the" Phase 2 Exuansion").
C. CITY and DEVELOPERS are parties to a series of sewer funding agreements relating to the Phase 2 Expansion ( coAectively the " Fundinu Aareements"). The Funding Agreements are listed in Schedule 1 attached hereto. To the extent of any conflicts between the Funding Agreements and this Agreement, this Agreement shall control and supersede any such conflicting terms.
D. During the pre- design and design process for the Phase 2 Expansion, additional developers ( listed in Schedule 2 attached) participated in and funded the Phase 2 Expansion.
Following the pre- design process, the additiona! developers withdrew(" Withdrawn Developers") from the Phase2 Expansion. CITY reimbursed (or will reimburse) the Withdrawn Developers for costs they had expended. Accordingly, and once reimbursed, the Withdrawn Developers have no right under this Agreement to receive a ` vill serve" from CITY with respect to any capacity in the Phase 2 Expansion.
E. The parties desire to execute this Agreement to set forth their definitive understanding with respect to the funding of pre- design, design, permitting, programming, construction costs and standby charges, including all outside consultant costs and CITY staff costs relating to, and allocations of capacity in the Phase 2 Expansion as more particularly set forth herein.
NOW THEREFORE, in consideration of the promises and covenants contained herein, the above recitals, and other good and valuable considerafion, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
AGREEMENT
1. Incorporation of Recitals. The parties agree that the foregoing Recitals are true and correct, and are incorporated as a part of this Agreement as if set forth in full herein. i
2. Overall Cost: Phase 2 Expansion.
a. Based upon bids received by the CITY and CITY'S calculation of other costs such as permitting and CITY staff charges, the total estimated cost of the Phase 2 Expansion is 26, 374,212 ( the " Expansion Costs"). The parties acknowledge that the estimated Expansion Costs include a 10% contingency( the" Continaenc'), which the parties expressly approve. Of the total estimated Expansion Costs, DEVELOPERS have funded $ 2, 914, 647 pursuant to the Funding Agreements ( the " Funded Expansion Costs"), which amount is net of any amounts reimbursed or to be reimbursed to Withdrawn Developers by CITY. Section 6.a. and Exhibit A illustrate each DEVELOPER'S share of Funded Expansion Costs paid to date, Unfunded Expansion Costs (defined in Section 6.a) and timing of payment. b. Upon receipt of the Unfunded Expansion Costs, the CITY shall use commercially reasonable efforts to complete the Phase 2 Expansion in an timely manner, subject to force majeure delays, including without limitation obtaining all applicable permits and approvals necessary to proceed with the Phase 2 Expansion incluciing an updated WDR to clarify minimum increments for additional storage capacity and address new state water quality standards, as well as the requisite administrative design and pond approvals for the Phase 2 xpansion. Newly proposed spra eld areas and recycled water storage ponds for use in disposal of treated . wastewater from the LCTF inay require environmental review under CEQA.
3. Initial Capacitv Allocations. Subject to the DEVELOPERS' compliance with the terms of this Agreement, CITY will provide DEVELOPERS with initial capacity allocations in the Phase 2 Expansion as set forth in Exhibit B- 1 ( the" Initial Caaacitv Allocations").
4. Restrictions on Reliance or Use of Sewer Allocation bv DEVELOPERS• Other Restrictions. Notwithstanding anything to the contrary contained herein, the following shall apply to restrict DEVELOPERS' re[iance upon or use of its Sewer Allocation ( defined below):
a. No DEVELOPER shall" rel ( defined below) upon its Initial Capacity Allocation or Reserved Capacity Allocation ( defined in Section 7.a) ( collectively, the " Sewer Allocation") unless and until such DEVELOPER has ( i) obtained fee title to land for all ponds, spra elds and related infrastructure ( or other alternative methods of disposal approved by the CITY and the Regional Board) necessary to use such capacity ( collectively, the " Disposal Infrastructure"), ii) provided CITY with secured funding for construction of Disposal Infrastructure in the form of designated cash on deposit with CITY, security bond, letter of credit, or specifically designated Land Based Financing ( defined below) containing a disbursal mechanism in favor of, and as approved by, CITY, ( iii) offered the Disposal Infrastructure to CITY for dedication ( with conditional right of reversion) and ( iv) secured administrative design approval from the CITY and Regional Board for the design of Disposal Infrastructure ( with items ( i) through ( iv) referred to herein, collectively, as the " Reliance Reauirements"). As used herein, " rel shall mean the ability to rely upon the availability of such capacity for CITY approval of final maps. b. No DEVELOPER shall be entitled to use its Sewer Allocation ( e.g. for CITY approval of building permits) unless and until such DEVELOPER has (i) completed construction of the Disposal Infrastructure, ( ii) issued to CITY as- built drawings documenting the completed Disposal Infrastructure and (iii) incorporated the Disposal Infrastructure into the City's Wastewater Discharge Permit by obtaining Regional Board approval of (Y) a completion report for added storage and disposal and ( Z) an increase in disposal capacity for CITY'S combined treatment facility( collectively, "Use Reauirements").
c. Notwithstanding anything to the contra.ry set forfh in this Agreement, DEVELOPER compliance with any provisions herein regarding Disposal Infrastructure is subject to the terms of any DEVELOPER' S Development Agreement with CITY, the terms of which Development Agreement(s) shall control with respect to compliance with Disposal infrastructure. 2 d. The terms of this Agreement and any transfer of Sewer Allocations to DEVELOPERS or third parties under this Agreement are exempt from the City' s Wastewater Treatment Capacity Policy approved by the City Council on May 4, 2015 by Resolution No. 15- 3913 ( the " Transfer Policw'); provided, however, that no transfer to a DEVELOPER or a third party shall be effective unless and until such DEVELOPER or third party has provided to CITY the information required in Schedule 3 attached hereto (" Transfer Information") for CITY approval, which shall not be unreasonably withheld, conditioned or delayed. e. Notwithsfanding anything to the contrary contained herein, including without limitation the provisions of Sections 7 and 9, no DEVELOPER'S Sewer Allocation may be taken away from such DEVELOPER if such DEVELOPER has satisfied all Reliance Requirements for its Sewer Allocation.
f. DEVELOPERS acknowledge and understand that DEVELOPERS cannot use their Sewer Capacity until ( i) final completion and CITY acceptance of.the Phase 2 Expansion and ii) final signoff of the completed Phase 2 Expansion by the Regional Board.
5. Standby Charges.
a. CITY shall provide notice to all DEVELOPERS when CITY begins receiving invoices from Veolia Water West Operating Services, Inc. ("Veolia") for maintenance of the Phase 2 Expansion ( the " Standbv Charqe Notification"). DEVELOPERS' obligation to pay Standby Charges commences upon receipt of the Standby Charge Notification ( the " Standbv TriaaerDate"). The Standby Charge Notification shall include an invoice detailing the Standby Charges that are due from each DEVELOPER. The CITY shall calculate the annual charge pe gallon of capacity in accordance with Exhibit B- 2, which charge will escalate annually at the same rate set forth in the CITY'S separate written agreement with Veolia, which escalation shall not exceed the Consumer Price Index for all urban consumers for the Los Angeles Standard Metropolitan Statistical Area as published by the Bureau of Labor Statistics of the U. S. Department of Labor the" Escalation"), unless otherwise agreed by the parties, in writing. b. DEVELOPERS shall pay the applicable Standby Charges not later than thirty( 30) days after receipt of the Standby Charge Notification. CITY shall provide annual Standby Charge Notifications to each DEVELOPER for future Standby Charges by July 31 S of each year. Annual standby charges are due thirty (30) days after receipt of invoice. Notwithstanding the foregoing, and except with respect to charges by Veolia that have been incorporated into the construction budget for the Phase 2 Expansion, in no event shall DEVELOPERS be responsible for Standby Charges unless the Completion Requirements ( defined in Section 6( c)) have been satisfied. c. DEVELOPERS are responsible for paying Standby Charges for each DEVELOPER'S Sewer Allocation as illustrated in Exhibit B-2 ( including the Escalation, the Standbv Charqes"). The Standby Charges include overcharges due to the higher operational costs associated with a wastewater treatment plant that is larger than currently needed(" Standbv Overcharaes"), also as illustrated in Exhibit B- 2.
d. The pa ties acknowledge that DEVELOPERS' obligation to pay Standby Charges shall terminate as sewer capacity in the Phase 2 Expansion is used. On or about May 1 St of year, the CIT1' shall check the termination date for Standby Charges in the following manner:
i. CITY shall determine the total number of gallons of sewer capacity assigned to rate payers. Solely for purposes of determining the termination date for Standby Charges, each EDU ( equivalent dwelling unit) shall be considered to be assigned 260 gallons per day ("g d") of capacity ( the " Used Sewer Capacitv"). CITY shall provide a copy of the CITY' S Used Sewer Capacity determination within thirty( 30) days after CITY finalizes the determination. ii. If CITY determines through its calculation in subsection ( i) above that the tota! gallons of Used Sewer Capacity has met or exceeded the "Threshold of Flow From New 3 Users at Which Standby Charge is No Longer Needed" as shown on Exhibit B- 2, DEVELOPERS' obligation to pay Standby Charges shall terminate and no additional Standby Charges shall be due for any subsequent year. CITY shall provide written notice to DEVELOPERS at the time that DEVELOPERS' obligation to pay Standby Charges ceases.
iii. Subject to the foregoing provisions regarding termination of the obligation to pay Standby Charges, DEVELOPERS shall remain responsible for Standby Charges for any Sewer Allocation applicable to such DEVELOPERS unless and until a DEVELOPER transfers all or a portion of its Allocation with the corresponding obligation to pay Standby Charges, and such transfer has been accepted by CITY in accordance with the provisions of Section 4.d. e. Subject to the provisions of Section 4.f., so long as DEVELOPERS have satisfied Use Requirements for their Sewer Allocation, DEVELOPERS may commence using their Sewer Allocation from and after the Standby Trigger Date.
6. Developer Funding of Phase 2 Expansion.
a. Funded and Unfunded Expansion Costs. Each DEVELOPER'S proportional share of Funded Expansion Costs paid to date and the portion of Expansion Costs that has not yet been funded (" Unfunded Expansion Costs") are set forth in Exhibit A based upon the percentages set forth therein. Except as set forth below, each DEVELOPER shall pay its applicable share of Unfunded Expansion Costs on the Effective Date. Notwithstanding the foregoing, the parties acknowledge that LMI is owed Oversizing Reimbursements (defined in Section 8(c)) that exceed LMI' s portion of Unfunded Expansion Costs( the" LMI Share"). As a result, (i) LMI is not obligated to pay the LMI Share on the Effective Date, and ( ii) CITY shall reduce the Oversizing Reimbursements that are due LMI by the amount of the LMI Share when CITY pays Oversizing Reimbursements to applicable DEVELOPERS under Section 8. b. Use of Continaency; Cost Overruns.
i. Subject to the terms below, the parties agree that the CITY may use the Contingency for any cost overruns for the Phase 2 Expansion without obtaining the prior approval of DEVELOPERS. Notwithstanding the. foregoing, during construction, CITY shall provide DEVELOPERS with written monthly construction updates (" Construction Updates"), which Construction Updates shall incfude an updated completion schedule, a listing of costs incurred to date based upon invoices received by the end of the previous month, copies of all changes orders executed during the applicable month and notification of any pending or anticipated change orders, and other information as reasonably requested by DEVELOPERS. CITY shall endeavor to provide the Construction Updates to DEVELOPERS not later than the 215 of each month, for work completed during the previous month.
ii. If CITY exhausts the Contingency and CITY reasonably believes that it must incur costs in excess of the Contingency to complete the Phase 2 Expansion (" Excess Costs"), CITY shall promptly notify DEVELOPERS of such Excess Costs from time to time, as needed. Subject to Section 6. b. iii, CITY must obtain DEVELOPERS' prior written approval prior to incumng the Excess Costs, which shall be provided, if at all, not later than ten ( 10) business days after receipt of CITY'S notice of Excess Costs together with appropriate backup documentation.
iii. Notwithstanding the foregoing, if CiTY and RID agree to the Excess Costs, A) CITY shall notify all DEVELOPERS of such agreement (" Notice of Aaproval of Excess Costs"),( B) CITY may proceed with the work, and( C) all DEVELOPERS shall pay their respective share of the Excess Costs within ten ( 10) business days after receipt of the Notice of Approval of Excess Costs.
iv. If any DEVELOPER fails to contribute its share of Excess Costs within ten 10) business days after receipt of the Notice of Approval of Excess Costs, then ( Y) the 4 contributing DEVELOPERS shall pay the non- contributing DEVELOPER' S portion of Excess Costs, on a pro rata basis, and ( Z) such non- contributing DEVELOPER' S Sewer Allocation shall be reduced and allocated to the contributing DEVELOPERS on a pro rata basis. c. Final Accountinq.
i. CITY shall provide a draft final accounting of all construction costs incuRed by CITY in connection with the Phase 2 Expansion ( the " Final Accountinp") fo DEVELOPERS not later than 90 days after( A) final eompletion and CITY acceptance of the Phase 2 Expansion and ( B) final signoff of the completed Phase 2 Expansion by the Regional Board ( colleetively, Comaletion Requirements"). CITY shall request written confirmation of receipt of the Final Accounting from each DEVELOPER( whether through confirmation of ovemight courier delivery, return receipt request, or other method). The parties acknowledge that the Final Accounting may include Excess Costs in addition to those addressed during construction pursuant to Section 6. b. ii. Each DEVELOPER shall have the right to review and approve the Final Accounting, which review and approval shall be provided, if at all, within 10 business days after DEVELOPERS' receipt of the Final Accounting. If any DEVELOPER has not timely provided its written approval or comments, if any, then such DEVELOPER shall be deemed to have approved the Final Accounting. Subject to the foregoing, CITY and DEVELOPERS will work together to resolve any questions raised regarding the draft Final Accounting prior to it becoming final. iii. If all DEVELOPERS approve the Final Accounting OR if all DEVELOPERS do not approve the Final Accounting but CITY and RID agree to the Final Accounting, ( A) CITY shall notify all DEVELOPERS of such agreement (" Notice of Approval of Final Accountina") and ( B) all DEVELOPERS shall pay their respective share of any Excess Costs as set forth in the Final Accounting within thirty( 30) days after receipt of the Notice of Approval of Final Accounting.
The Notice of Approval of Fina1 Accounting shall attach the approved Final Accounting, the parties' final allocations of the Expansion Costs in accorclance with the provisions of this Section 6, and the final Reserved Capacity Overpayment ( defined in Section 7. b) applicable to each DEVELOPER.
iv. If any DEVELOPER fails to contribute its share of Excess Costs set forth in the Final Accounting within thirty ( 30) days after receipt of the Notice of Approval of Final Accounting, then ( Y) the contributing DEVELOPERS shall pay the non- contributing DEVELOPER'S portion of F ccess Costs, on a pro rata basis, and ( Z) such non- contributing DEVELOPER' S Sewer Allocation shall be reduced and allocated to the contributing DEVELOPERS on a pro rata basis.
v. To the extent that the approved Final Accounting illustrates cost savings e.g. the Phase 2 Expansion was constructed for less than the Expansion Costs contributed by DEVELOPERS, including any savings of Contingency amounts cont ibuted by DEVELOPERS), the CITY shall reimburse to each DEVELOPER its pro rata share of such cost savings within thirty 30) days after CITY'S issuance of the Notice of Approval of Final Accounting.
7. Reserved Capacitv.
a. The parties acknowledge that a portion of the Unfunded Expansion Costs includes the cost of the 0. 4 MGD oversized sewer capacity that is not currently needed by each DEVELOPER and CITY( the" Reserved Capacitv"). Exhibit C- 1 attached hereto illustrates each DEVELOPER' S allocation of the Resenred Capacity(" Reserved Cauacitv Allocation"). Exhibit G2 attached hereto illustrates the overpayment by each DEVELOPER applicab(e to each DEVELOPER' S Reserved Capacity Allocation ( the" Reserved Capacitv Overpavment"). b. Each DEVELOPER understands and agrees that its Reserved Capacity Allocation will not be deemed allocated to such DEVELOPER until such DEVELOPER can demonstrate to CITY that it needs the Reserved Capacity( a) over the next five( 5) years if the Phase 2 Expansion 5 construction has not yet been substantially completed or( b) over the next 3.5 years if the Phase 2 Expansion construction is substantially complete (" Demonstration of Need"). The Demonstration of Need shall illustrate DEVELOPER' S then- current projections of its development and sewer capacity requirements and shall include appropriate backup documentation and other information as reasonably requested by CITY. Upon receipt and approval by CITY of the Demonstration of Need, such DEVELOPER' S portion of Reserved Capacity shall be deemed perfected and allocated to such DEVELOPER, subject to the provisions regarding Use Determinations and Reliance Requirements as set forth herein. Any DEVELOPER that has not yet provided a Demonstration of Need for its allocation of Reserved Capacity is defined as an UnperFected Developer." The date that when all Reserved Capacity has been perfected or sold, as applicable, is defined as the" Reserved Caqacitv Exhaustion Date." c. If the CITY or any DEVELOPER that has perfected its right to Reserved Capacity each, a " Perfected Develoaer'') determines that it needs additional sewer capacity from, unperFected Reserve Capacity, CITY or the PerFected Developer( s) may send a notice ( the Reserved Caaacitv Reauest") to all DEVELOPERS. Perfected Developers must provide CfTY with a copy of all Reserved Capacity Requests by Perfected Developers. Any Reserved Capacity Request from a Perfected Developer must include a Demonstration of Need for the additional portion of Reserved Capacity being requested. If any Unperfected Developer cannvt provide an acceptable Demonstration of Need to CITY within thirty ( 30) days after receipt of the Reserved Capacity Request, and subject to the payment provisions below, CITY shall sell the requested portions of Reserved Capacity to ( i) the PerFected Developer that made the Reserved Capacity Request or ( ii) third parties or CITY, as applicable, if the CITY issued the Reserved Capacity Request. These sales of Reserved Capacity shall reduce the remaining alloaations of Reserved Capacity from UnperFected Developers on a pro rata basis. d. The purchase price for the Reserved Capacity shall be equal to( a) the Developer Reimbursement ( defined below) applicable to the Reserved Capacity being purchased plus c) simple interest at the lesser of 10% per annum or the highest rate permitted by law(" InteresY'), accruing on the date that the applicable DEVELOPER funded its share of Expansion Costs ( the Interest Commencement Date").
e. As used herein, the term " Developer Reimbursement" means the Reserved Capacity Overpayment and Standby Overcharges applicable to the portion of Reserved Capacity being sold from that DEVELOPER' S allocation of Reserved Capacity. An example of the Developer Reimbursement is attached hereto as Exhibit D. The City is responsible for collecting the Developer Reimbursement from the purchaser, and paying the Developer Reimbursement to the selling DEVELOPERS, not later than thirty( 30) days after the Reserved Capacity is purchased by CITY, a third party or PerFected Developer.
f. Subject to the provisions of Section 4.e., any DEVELOPER' S Reserved Capacity Allocation, even if perfected, is subject to the Use Determination provisions of Section 9.
8. Previous Oversizinq; Oversizinq Overpavments.
a. Separate and distinct from the Reserved Capacity, under the terrns of previous Funding Agreements for the construction of 0.75 MGD, certain DEVELOPERS have paid for oversizing of the existing LCTF ( the " 0. 75 MGD Oversizinq Overpayments"). These funding DEVELOPERS are due reimbursement for the 0.75 MGD Oversizing Overpayments at the time the oversized capacity is needed by other developers ( the " 0. 75 MGD Oversizinp Reimbursement"). Attached hereto as Exhibit E- 1 is a table that sets forth ( i) the identity of the DEVELOPERS that have paid 0. 75 MGD Oversizing Overpayments, ( ii) the amount of the 0. 75 MGD Oversizing Overpayments, ( iii) the applicable 0. 75 MGD Oversizing Reimbursement that is due to each of the funding DEVELOPERS and ( iv) the DEVELOPERS that are obligated to pay the 0. 75 MGD Oversizing Reimbursement( the" 0. 75 MGD Reimbursinq Develoaers"). The 0. 75 6 MGD Reimbursing Developers shall pay the applicable 0.75 MGD Oversizing Reimbursement to CITY on the Effective Date, and the CITY shall pay the applicable 0. 75 MGD Oversizing Reimbursement to the applicable funding DEVELOPERS not later than thirty ( 30) days after the receipt of such funds.
b. Separate and distinct from the Reserved Capacity and the 0. 75 MGD Oversizing Overpayments, under the terms of previous Funding Agreements for the construction of 0.25 MGD, certain DEVELOPERS have paid for oversizing of the e asting LCTF ( the " 0.25 MGD Oversizina Overpavments"). Thesefunding DEVELOPERS are due reimbursementforthe 0.25 MGD Oversizing Overpayments at the time the oversized capacity is needed by other developers the" 0. 25 MGD Oversizinp Reimbursement"). Exhibit E- 2 identifies( i) DEVELOPERS that have paid 0. 25 MGD Oversizing Overpayments, ( ii) the amount of the 0.25 MGD Oversizing Overpayments, ( iii) the applicable 0.25 MGD Oversizing Reimbursement that is due to each of the funding DEVELOPERS and ( iv) the DEVELOPERS that are obligated to pay the 0.25 MGD Oversizing Reimbursement ( the " 0.25 MGD Reimbursina Developers"). The 0.25 MGD Reimbursing Developers shall pay the applicable 0.25 MGD Oversizing Reimbursement to CITY on the Effe tive Date, and the CITY shall pay the applicable 0. 25 MGD Oversizing Reimbursement to the applicable funding DEVELOPERS not later than thirty (30) days after the receipt of such funds.
c. The 0. 75 MGD Oversizing Reimbursement and the 0. 25 MGD. Oversizing Reimbursement are referred to herein, collectively, as the" Oversizinq Reimbursements." •
9. Use Determinations.
a. Unused Capacitv. The terms of this Section 9 shall apply if any DEVELOPER has failed to satisfy Reliance Requirements for such DEVELOPER' S Sewer Allocation by the last to occur of the Standby Trigger Date and Reserved Capacity Exhaustion Date .( the " Use Determination TriAaer Date"). The portion of a DEVELOPER' S Sewer Allocation as to which such DEVELOPER has not satisfied Reliance Requirements is defined as" Unused Capacitv." b. Unused Capacity Use Determinations.
i) From and after the Use Determination Trigger Date, and upon thirty ( 30) days' prior written notice to all parties, any DEVELOPER may request ( a " Use Determination Reauest") that CITY determine whether any DEVELOPER has failed to satisfy Reliance Requirements for its Sewer Allocation (" Use Determination"). CITY may also independently initiate a Use Determination upon written notice to all parties. The parties acknowledge that there may be multiple Use Determination Requests by individual DEVELOPERS. ii) Any Use Determination Request must ( A) describe the Sewer Allocation desired by the requesting DEVELOPER ( the " Reauested Allocation") and ( B) be accompanied by a Demonstration of Need and proof that the requesting DEVELOPER can satisfy Reliance Requirements for the Requested Allocation.
iii} Within 30 days after receipt of a Use Determination Request ( or initiation of the Use Determination by CITY, as applicable), CITY shall issue a draft summary of Unused Capacity (the" Unused Capacitv Summar') listing the affected DEVELOPERS and applicable Unused Capacity.
iv) Affected DEVELOPERS must respond with any clarifications or objections to the Unused Capacity Summary within 15 days after receipt. If affected DEVELOPERS fail to respond, they will be deemed to have approved the Unused Capacity Summary. v) The final Unused Capacity Summary shall constitute the final " Use Determination and shall be issued by CITY not later than 15 days after receipt of any objections or clarifications.
7 i . . . . . . . .. . . . .
vi) Non- compliant DEVELOPERS shail have thirty ( 30) days after receipt of the final Use Determination ( the" Use Determination Cure Period") in which to satisfy Reliance Requirements for their Unused Capacity.
vii) If any non- compliant DEVELOPER fails to satisfy Reliance Requirements within the Use Determination Cure Period, then CITY shall notify the parties of such failure and the requesting DEVELOPER( S) ( or CITY, if CITY initiated the Use Determination) may purchase the Requested Capacity, up to the amount set forth in the Use Determination. The requesting DEVELOPER( S) ( or CITY, as applicable) must purchase the Requested Capacity not later than thirty( 30) days after expiration of the Use Determination Cure Period by depositing the applicable purchase price with CITY as set forth below; otherwise, the right to purchase shall expire and be of no further force and effect. The CITY shall identify and sell Unused Capacity on a pro-rata basis from all DEVELOPERS with Unused Capacity, so that Unused Capacity is not taken from just one DEVELOPER. If multiple DEVELOPERS have made Use Determination Requests and there is insufficient Unused Capacity to satisfy all Requested Allocations, the CITY shall allocate Unused Capacity on a pro rata basis ( based upon all non- compliant DEVELOPERS' Unused Capacity) to requesting DEVELOPERS or CITY, as applicable. viii) The purchase price for Unused Capacity shall equa! the Developer Reimbursement applicable to the Unused Capacity plus Interest commencing on the Interest Commencement Date. CITY shall permit DEVELOPERS selling Unused Capacity to participate in the next expansion of the LCTF to the extent of the Unused Capacity sold by such DEVELOPER.
10. Land Based Financina. Any DEVELOPER may petition the CITY to use community facilities district or other land based financing (" Land Based Financinq") to pay its share of Expansion Costs. If the use of Land Based Financing is approved by CITY, then such DEVELOPER' S share of Expansion Costs and any other amounts paid by such DEVELOPER pursuant to applicable Funding Agreements may be reimbursable from proceeds of Land Based Financing. The CITY shall adopt a reimbursement resolution to such effect concurrently with the approval of this / greement; provided, however, that CITY' S adoption of such a reimbursement resolution does not obligate CfTY to issue bonds or act as the lead agency with respect to such Land Based Financing.
11. Default.
a. If any party materially breaches or fails to comply with any of its obligations under this Agreement, such breaching party shall have thirty( 30) days after receipt of written notice of breach from a non- defaulting party( the" Breach Notice") to cure such breach or noncompliance as such period may be extended as set forth below, the" Cure Period"). If such breaching party does not cure such breach or noncompliance within the Cure Period, it shall be deemed in default Default") under this Agreement; provided, however, that if the nature of the breach or noncompliance reasonably requires more than thirty( 30) days to cure, the breaching party shall not be in Default under this Agreement so long as the breaching party commences such cure within the Cure Period and diligently prosecutes such cure, and provided further that the Breach Notice shall set forth in reasonable detail the nature of the breach, noncompiiance or default, as the case may be. The party sending the Breach Notice shall provide a copy to all parties hereunder.
b. Subject to the provisions of Section 11( c) below, upon a Default pursuant to Section 11( a), the parties shall first mediate the dispute in good faith using a mutually acceptable mediator, which mediation shall be scheduled and concluded not later than 60 days after expiration of the Cure Period. The mediation shall be conducted in accordance with the Construction Industry Mediation Rules of the American Arbitration Association currently in effect.
Claims, controversies or disputes not resolved by mediation shall be decided by binding arbitration 8 unless the parties mutually agree otherwise. Arbitration shall be conducted in acoordance with the Construction Industry Arbitration Rules of the American Arbitration Assoaation currently in effect.
The demand for arbitration shall be filed in writing with the other parties to this Agreemerit and the American Arbitration Association. Notwithstanding the foregoing, any party may seek injunctive or other immediate equitable relief, if applicable, in a court of law, pending resolution of the dispute through mediation or arbitration.
c. Notwithstanding the foregoing, in the event of a payment default hereunder that is not cured within ten( 10) business days after any DEVELOPER' S receipt of a Breach Notice from CITY, ( i) CITY may immediately suspend such DEVELOPER' S ability to use its Capacity Allocation and ( ii) CITY may sell such DEVELOPER' S Capacity Allocation on a pro rata basis to the other DEVELOPERS for the purchase price illustrated in Se tion 9. b.
12. Counteraarts. This Agreement may be executed in counterparts, including electronic( pdfl and facsimile counterparts, each of which shall be considered an original and all of which together shall be considered the same document.
13. Advice of Counsel. Each of the parties has received the advice of legal counsel prior to signing this Agreement. Each party acknowledges no other party or agenf or attorney has made a promise, representation, or waITanty whatsoever, express or implied, not contained herein conceming the subject matter herein to induce another party to execute this Agreement. The parties agree no provision or provisions may be subject to any rules of construction based upon any party being considered the party drafting this Agreement.
14. Governing Law. The validity, interpretation and effect of this Agreement are governed by and shall be construed in accordance with the laws of the State of Califomia.
15. Severabilitv. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable but the remainder of the Agreement can be enforced without failure of material consideration to any party, then this Agreement shall not be affected and it shall remain in full force and effect. If, however, the invalidity or unenforceability vf any provision of this Agreement results in a material failure of consideration, all parties shall meet and negotiate in good faith not less frequently than every ten ( 10) days and formulate new terms that substitute the stricken clause with other provisions that provide substantially similar terms as the stricken clause. If the parties are unable to agree, then the parties shall resolve the issues through mediation as set forth in Section 11. b.
16. Authorization. Without any personal liability therefor, each person executing this Agreement on behalf of the applicable party hereto warrants that ( i) such party is duly organized and existing, ( ii) such person has been duly authorized to execute and deliver this Agreement on behalf of the applicable party, (iii) the execution of this Agreement by such person shall bind the applicable party to the terms of this Agreement, and ( iv) to such person' s knowledge, the execution of this qreement does not violate any agreement as to which such party is bound.
CITY represents and warrants that CITY has obtained any necessary approvals to execute this Agreement and be bound by the terms hereof.
17. Other AQreements Not AfFected. This Agreement constitutes the entire agreement between the parties hereto with respect to the Phase 2 Expansion and supersedes all prior understandings or agreements with respect to the subject matter hereof; provided, however, that this Agreement does not supersede, amend, nor replace any prior written agreement relating to any matter other tFtan with respect to the matters expressly set forth in this Agreement relating to this specific Phase 2 Expansion project such as, without limitation, the parties' separate Consortium Agreement, as amended from time to time, and the Conditional Will Serve Agreement for Wastewater between CITY and Saybrook dated August 19, 2013. This Agreement may be modfied only by specific reference describing a mutual intent and agreement to amend this Agreement in written documents signed by all parties hereto. 9 18. Greenlighting Future Expansions. Nothing herein supersedes, amends or replaces any prior written agreement with respect to the DEVELOPERS' ability to " greenlight" future expansions in accordance with the parties' other written agreements regarding" greenlighting."
19. Notices. All notices which are allowed or required to be given hereunder shall be in writing and ( i) shall be deemed given and received when personally delivered or ( ii) shall be deemed given when the same are deposited in the United States Mail, with sufficient postage prepaid, to be sent by registered or certified mail or overnight mail service, addressed to the designated person by one party to another in writing, and shall be deemed received on the fourth business day after such mailing. Any notice shall be given to all of the following:
CITY RID LMI
City of Lathrop River Islands Development, Lathrop Mossdale Investors 390 Towne Centre Drive LLC LP
Lathrop, CA 95330 73 West Stewart Road 675 Hartz Avenue Attn: City Manager Lathrop, CA 95330 Danville, CA 94526 With a copy to:
Attn: Susan Dell' Osso Attn: Jeff Abramson and Lori
City of Lathrop
With a
copy to:
Naltzer
390 Towne Gentre Drive River Islands Development,
Lathrop, CA 95330 LLC
Attn: City Attomey 2999 Oak Road, Suite 400
Walnut Creek, CA 94597
Attn: Lisa Freilicher, Esq.
RDI SAYBROOK
Richland Developers, Inc. Saybrook CLSP, LLC
3161 Michelson Drive, Suite 303 Twin Dolphin Drive
425 Suite 600
Irvine, CA 92612 Redwood Shores, CA 94065
Attn: General Counsel Attn: Jeff Wilson
With a copy to: With a copy to:
Richland Developers, Inc. Best and Krieger
3000 Lava Ridge Court, Suite 300 South Grand Avenue,
115 25"' Floor
Roseville, CA 95661 Los Angeles; CA 90071
Attn: Clifton Taylor Attn: Seth Merewitz, Esq.
20. Further Assurances. The parties agree to perform such further acts and to execute and deliver such fu ther instruments as are reasonably necessary to accomplish the intent and purpose of this Agreement.
21. AssiQnment and Transfer. This Agreement shall inure to the benefit of and bind the successors and permitted assigns ofthe parties. Except for an assignment to an Affiliate( defined below) of a DEVEI.OPER, no DEVELOPER may assign this Agreement without the prior written consent of CITY, which shall not be unreasonably withheld, conditioned. or delayed. Without limiting the foregoing, prior to any DEVELOPER assignment, ( i) the assigning DEVELOPER shall notify all parties of the proposed assignment and provide reasonable information to the parties regarding the proposed assignee and ( ii) any potential assignee must reasonably demonstrate to the CITY's satisfaction that the proposed assignee has the financial ability and experience to fulfill the assigning DEVELOPER'S obligations under this Agreement. Any DEVELOPER may assign this Agreement to an Affiliate, with notice to the other parties hereto. As used herein, the term Affiliate" means any person, entity or organization as to which any DEVELOPER has a controlling 10 interest. As used herein, " controlling interest" means the right to control the management decisions of such person or entity, whether by contract or otherwise.
22. Time of the Essence. Time is of the essence of this Agreement.
23. Construction. All parties have been represented by counsel in the preparation of this Agreement and no presumption or rule that ambiguity shall be construed against a drafting party shall apply to interpretation or enforcement hereof. Captions on sections and subsections are provided for convenience only and shall not be deemed to limit, amend or affect the meaning of the provision( s) to which they pertain.
24. No Joint Venture or Partnership. Nothing in this Agreement or in any document executed in connection with this Agreement shall be construed as creating a joint venture, partnership, or any agency relationship between CITY and a DEVELOPER or all DEVELOPERS. CITY shall have no responsibility for Disposal Infrastructure or any other public improvements unless and until accepted by CITY.
25. Waiver. No waiver of any provision of this Agreement shall be effective unless such waiver is in writing and signed by a duly authorized representative of the party against whom enforcement is sought.
26. Table of Exhibits. The following exhibits are attached hereto and made a part hereof:
Exhibit A: Funded and Unfunded Expansion Costs
Exhibit B- 1: Initial Capacity Allocations
Exhibit B-2: Standby Charges
Exhibit C- 1: Developer Allocations of Reserved Capacity Exhibit C- 2: Reserved Capacity Uverpayment
Exhibit D: Developer Reimbursement
Exhibit E- 1: Oversizing Overpayments ( 0. 75 MGD)
Exhibit E-2: Oversizing Overpayments (0.25 MGD)
Schedule 1: Funding Agreements
Schedule 2: Withdrawn Developers
Schedule 3: Transfer Information
SIGNATURES ON THE FOLLOWING PAGE]
11 SIGNATURE PAGE TO CONSTRUCTION FUNDING AGREEMENT]
IN WiTNESS WHEREOF, the parties have executed this Agreement as of the Effective Date.
CITY RID
CITY OF LATHROP RIVER ISLANDS DEVELOPMENT, LLC
a municipa! corporation of the State of a California limited liability company California
B : gY:
ame: en J. Salvatore Name: Susan Dell'Osso
its: ity Manager Its: Vice President and Secretary
ATTEST:
By: r(J LMI
Nam , Teresa Vargas
Its: City Clerk LATHROP MOSSDALE INVESTORS LP, a
Dated: _/' 7 California limited partnership
APPROVED AS TO FOR : gy:
Name:
Its:
Satvador V. Navarrete
City Attorney
RDI SAYBROOK
RICHLANO DEVELOPERS, INC. SAYBROOK CLSP, LLC
a Delaware corporation a California limited liability company BY= By: Saybrook Fund Investors, LLC
Name: its Managing Member
Its:
By:
Name: Jeffrey M. Ison
Its: Officer
12 SIGNATURE PAGE TO CON TRUCTfON FUNDING AGREEMENT]
IN WITNESS WHEREOF; the parties have executed this Agreement as of the Effective Date.
C ITY f21 D
CITY OF LATHROP RIVER 1SLAND5 DEVELOPIUtENT, LLC
a m inicipal corporation of the State of a California limited liability company California
By: By:
Name: Stephen J. 5alvatore Name: Susan Dell' Osso
its: City Manager 1ts: Vice President and Secretary
ATTEST:
By: LMI
Name: Teresa Vargas
Its: City Clerk LATHROP MOSSDALE INVESTORS LP, a
Dated: California limited partnership
l' {' vwasga v iv+' s - N. , i`Pr n
APPROVED AS TO FORM: By:
Name: L t l-IIts: C U
Salvador V. Navarrete
City Attorney
a7f S YBROO C
RICHI_AND DEVELOPERS; INC. SAYBROOK CLSP, LLC
a Delaware corporation a California limited liability c ampany 8y: By: Saybrook Fund Investors, LLC
Name: its Managing Member
Its:
Sy:
Name: Jeffrey M. Wilson
ts: Officer
12 SIGNATURE PAGE TO CONSTRUCTION FUNDING AGREEMENT]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date.
CITY RID
CITY OF LATHROP RIVER ISLANDS DEVELOPMENT, LLC
a municipal corporation of the State of a California limited liability company Cafifornia
By: By:
Name: Stephen J. Salvatore Name: Susan Dell'Osso
Its: City Manager Its: Vice President and Secretary
ATTEST:
By: LMI
Name: Teresa Vargas
Its: City Clerk LATHROP MOSSDALE INVESTORS LP, a
Dated: California limited partnership
APPROVED AS TO FORM: By:
Name:
Its:
Salvador V. Navarrete
City Attorney
RDI SAYBROOK
RICHLAND DEVELOPERS, INC. SAYBROOK CLSP, LLC
a Delaware corporation a California limited liability company By: By: Saybrook Fund Investors, LLC
Name: its Managing Member
t5:
By: t
Name: Jeff ey M. Wilson
Its: Officer
12 SIGNATIlRE PAC3E TO CONSTRUCTION FUNDlNG AGREEMENTj
IN WITNESS WFIEREOF, the p rtiea have ex ecuted thie/ reement aa otthe Ei fve Date.
CITY OF LATHROP RNER ISLANDS DEVELOPIMENT. LLC
a municipal aorporallon af the State of a Califomia Nmitad I biqiy company Cetffamis
Name: Steph J. Salvatore Neme: Suaan II'Osso
Its: City Meneger Ita: Vice Preafdent and 3ecrotary
ATTEST:
BY 1 1,
Name: Ter Var as
Ne: Cily Cle c LATHROP MOSSDALE I IVESTOR8 LP, s
Dated: CaliForNa mited partnershfp
APPROVED AS TO FORM: 8y:
Neme:
It:
Sahr orV. Navarette
Gly Aitomey
AYBROOK
RICHLAND DEVELOPERS 1NC. SAYBROOK CL8P, LLC
e Qeleware c rporation a CeGfomia ltmited liability comparry aD• r
Nerne: Name: Jeff VWeon
Its: ta Its: Co-Allan ing Member
1 EXHIBIT A
Funded and Unfunded Expansion Costs
See Attached)
13 D Z 70 7o r tn 7o C] C - n
O
f f V/ -- I F+ N In IA 1- 9
O < n . O1i a
ci < E 7 O o Q
a v' co
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A y ., o ' o
o N
or i or < N v `G', oi c c m a.
o m v v v T e
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v
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EXHIBIT B- 1
Initial Capacity Allocations
See Attached)
14 D - I - cn l> >
aO
a ,. t
n
p < fD
II ?
S
n
A
00 < d
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p
o
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p
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m
61 S N oo d
a o• .
EXHIBIT B-2
Standby Charges
See Attached)
15 a"i o'i
ro 0 0 Q x N y - n m m n Z ,..+
r
c+ - v a
Q 7' 7 cl ' C L*. m d
y '' '' O
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p
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EXHIBIT C- 1
Developer Allocations of Reserved Capacity
See Attached)
16 a +
o c
ov
h n <
6 d
L2.
1 . N '
OO
7 p
rt fp
o,
am
N
0 0
o v ,„- a
N
N N <
N
fD p
f'D
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7 fD
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C O ,~O ,
t0Oi a.° W w O
a` 2E 2e a° O
EXHIBIT C- 2
Reserved Capacity Overpayment
See Attached)
17 v, lz
y, n -ig o - a v+ onz v ocTc n n
a o o o ro o
o o o 0 0 ° o o'
D O r''e m 3 = ry < m m !: d <, _ d .., —-o o. m o -, d -, " v' n x o o '° g 3 ° N
a n ° or ' o. o i S °, N o
7; o 0 o n
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n 3 v -, 3 , N
C p v o
o to S < m m G
3 N 7 3 rt N 7 .. • - -• .. N
D rt fND • . r i C N - Cp N G "' p N• 0 p- O .
r. s _. C C y
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n. A fND C O N
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N
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Q'
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f+
N
m fo p vCi C' D fl j`
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EXHIBIT D
Developer Reimbursement
See Attached)
18 v, z
v> >o C 7o v m C v_, ( n
h . 0
ei p < 7
d C O 01 j
o i C
N O Oni
o- ° ' '" o o
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a ° 0°' .
n - °'
r`p a n a y y
v° p u,
tu p ": rp " °:
a c,
ro m
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a
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ry n C 3
r=r 7
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ry
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v .
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a
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N O O n nxi
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3 rr
v
v o c
o
EXHIBIT E- 1
Oversizing Overpayments ( 0. 75 MGD)
See Attached)
19 n r+ v
C W • Vp7 G V1 N
1D N i.
n o
iI
O O oi si
j d 7 7 D C
1Y OO W O•
3 0< r 3 v, m r°
x v v
o
w v W o v w > > i i
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s , s w w c c
o y '
3 vc
v N
m v m m
o o
5'i f+
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7cO•
n 3 D D tn in v. in< n n v.
n
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afn
7 y d ,dy ' F
A+
F~+ Np Av N v N d
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i
ry 3 O F+ N
A W IOV O O n
a v n ^ V p O V' O O O N U 01 O O 01 O O O
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SCHEDULE1
Funding Agreements
1) Funding Agreement between City of Lathrop and Jass Sangha dated March 17, 2015 2) Funding Agreement befinreen City of Lathrop and David Lazares and Cynthia Lazares Trust dated March 17, 2015
3) Funding Agreement befinreen City of Lathrop and Richland Developers, Inc. dated March 19, 2015, as amended by Amendment to the Funding Agreement dated March 10, 2016, as revised by that certain Partial Assignment between Richland Devefopers, Inc. to Richland Communities, Inc. dated March 10, 2016
4) Funding Agreement between City of Lathrop and River Islands Development, LLC dated March 20, 2015, as amended by Amendment to the Funding Agreement dated March 10, 2016
5) Funding Agreement between City of Lathrop and Lathrop Mossdale Investors LP dated March 20, 2015, as amended by Amendment to the Funding Agreement dated March 10, 2016
6) Funding Agreement between City of Lathrop and Ramona Chace, LLC dated March 20, 2015
21 SCHEDULE 2
Withdrawn Developers
Lathrop Gateway Business Park
Ramona/ Chase/ Pegasus
Jass Sangha
Richland Communities, Inc., a Florida corporation
22 SCHEDULE 3
Transfer Informafion
WASTEWATER CAPACITY TRANSFER CRITERIA
Any Developer or third party who has acquired wasfewater capacity under this Agreement and who wishes to transfer some or all of its wastewater capacity shall apply for the transfer through the City' s Public Works Director. The application shall include the following information and be submitted with the requisite fee( s):
1. Name of transferor and proposed transferee.
2. Address and/ or APN of the parcel( s) to benefit from the transfer.
3. The number of Equivalent Capacity Units ( ECU' s) or Interceptor System Units ( ISU' s) needed.
4. A description of the proposed development in sufficient detail to identify the potential impacts and benefits of the proposed development.
5. A letter from the purchaser committing to obtain a building permit, parcel map or final map with one year from City approval of the transfer, or to sell the units back to the City at the end of one year unless Council approves an alternative time limit. The repurchase price shall be the same as the cost paid by the transferee at the time the transfer took place, less the City' s administrative fee.
6. An application fee to cover the cost of staff efforts, including the preparation of staff reports for Council action and a ten percent( 10%) deposit toward the cost of the units.
7. An acknowledgement that it is the purchaser' s responsibility to provide any sewer line extensions and related facilities necessary to utilize the ECU' s or ISU' s.
The City's Public Works Director shall consider the following factors in approving or denying a transfer request:
1. Is the request consistent with the City' s General Plan?
2. Is the request consistent with the City's Sewer Master Plan?
3. Is the request consistent with the City' s Zoning Ordinance?
4. Is the request consistent with any other applicable local, state or federal laws, regulations or ordinances?
Upon receipt of a wriften request and payment of the appropriate fee(s), the City Engineer will prepare a report for City Council consideration and action. The City Council may approve the request and authorize the City Manager to execute an agreement approved by the City Attorney with the applicant, or deny the request based on the foregoing factors. ff the City Council approves a transfer of ECU' s or ISU' s from one parcel( s) to a different parcel( s), the applicant shall pay all costs to prepare and record an agreement( s) for the transfer. The agreement( s) will be recorded and advise future property owners of the transfer and limitations on future development.
23 I 1
EXHIBIT" g •'
1 Doc q: 2018- 047863 -- - —- --- --
05/ 01/ 2018 08: 45: 03 AM
Page: 1 of 22 Fee: $ 0
Steve J. Bestolarides
RECORDING REQUESTED BY AND San . Toaquin County Recorders I Paid By: SHOWN ON DOCUMENT WHEN RECORDED MAIL TO:
i IIII I E'171+ L'' r Illf l'r.y II III I
CITY OF LATHROP
ATTN: CITY CLERK
390 TOWNE CENTRE DRIVE
T-----
LATHROP, CA 95330
SPACE ABOVE THIS LINE FOR RECORDER' S USE
TRANSFER AGREEMENT RELATING TO DEVELOPMENT
AGREEMENT
BETWEEN SOUTH LATHROP LAND, LLC., AND
RICHLAND DEVELOPERS INC., FOR
THE SOUTH LATHROP SPECIFIC PLAN DEVELOPER
AGREEMENT, DATED AUGUST 3, 2015, RECORDED ON
SEPTEMBER 5, 2015, ( INSTRUMENT NO. 2015- 106926)
ADOPTED BY CITY OF LATHROP ORDINANCE NO. 18- 390
RECORDING REQUESTED BY:
CITY OF LATHROP
ATTN: CITY CLERK
390 TOWNE CENTRE DRIVE
LATHROP, CA 95330
Space Above Line For Recorder' s Use Only)
TRANSFER AGREEMENT RELATING TO DEVELOPMENT AGREEMENT
This Transfer Agreement Relating To Development Agreement (" Transfer Agreement") is made this day of March, 2018, by SOUTH LATHROP LAND, L.L. C., a Delaware limited liability company (" Assegnee"), and RICHLAND DEVELOPER' S INC., a Delaware corporation (" Assignor") with reference to the following recitals.
RECITALS
A. Substantially concurrently with the recordation of this Transfer Agreement, Assignor has conveyed to Assignee that certain real property described in Exhibit " A" attached hereto and incorporated herein( the" Property").
B. Assignor, as " Seller" and Assignee, as " Buyer" entered into that certain Agreement of Purchase and Sale of Option and Escrow Instructions dated as of February 28, 2018 pursuant to which Assignor has agreed to transfer and assign an option to purchase the Properly to Assignee, and Assignee will substantially concurrently obtain fee title( the" Purchase Agreement"). Escrow is expected to close on March 2, 2018.
C. Assignor is a party to that certain Annexation Agreement and Separate Development Aareement by and between The City of Lathrop (" City") and Richland Developers, Inc. relating to The South Lathrop Specific Plan dated August 3, 2015, which was recorded on September 2, 2015 as Instrument No. 2015- 106926( the" Development Agreement").
D. Assignor and Assignee acknowledge that the Ancillary Properties referenced in the Development Agreement were never annexed into the City, were personal to Assignor, and have been sold by Assignor.
E. Pursuant to the Purchase Agreement, Assignor desires to assign and Assignee desires to assume all of Assignor' s rights, duties and obligations under the Development Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants of the parties herein, and for good and valuable consideration, the receipt of sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Incorporation of Recitals. The Recitals of fact set forth above are true and correct and are incorporated into this Agreement in their entirety by this reference.
2. Assianment to and Assumption bv Assi ee. Effective as of the date that Assignee acquires fee title to the Properly, Assignor hereby sells, transfers and assigns to Assignee, and Assignee hereby expressly and unconditionally assumes all the rights, duties and obligations of Assignor under the Development Agreement, including, without limitation, all of the general rights, duties and obligations of Assignor under the Development Agreement for the development of the Property. Assignee agrees to observe and fully perform all of Assignor' s obligations under the Development Agreement, and to be subject to all the terms and conditions thereof, it being the express intention of both Assignor and Assignee that, upon execution of this Transfer Agreement, Assignee shall become substituted for Assignor as " Richland" under the Development Agreement.
Notwithstanding the foregoing, this Transfer Agreement shall not apply to, and Assignor shall retain, any and all rights in and to, any refunds, reimbursements or credits of any kind or character applicable to work performed or sums paid prior to the effective date ofthis Transfer Agreement.
3. Release of Assi nor. Pursuant to Section 13. 02. 2 of the Development Agreement, Assignor shall be free from any and all liabilities accruing on or after the date hereof with respect to the Development Agreement. No breach or default under this Transfer Agreement or the Development Agreement by Assignee shall be attributed to Assignor. For purposes of this Transfer Agreement, the " Release Provisions" shall be all Rights and Obligations of Assignor under the Development Agreement that arise from and after the date that Assignee acquires fee title to the Property.
4. Assignee' s Acknowled ment. Assignee hereby agrees and acknowledges that Assignee has had full opportunity to read and review the Development Agreement and is familiar with the rights and obligations under the Development Agreement.
5. Notices. Pursuant to Section 15. 09 of the Development Agreement, from and after the date hereof, notices for Richland shall be addressed as follows:
Ifto RDI:
South Lathrop, LLC
527 W 7th Street, Suite 308
Los Angeles, CA 90014
Attn: Philip J. Prassas
Email: pprassas , chindustrial. com
With a copy to:
Barack Ferrazzano Kirschbaum& Nagelberg LLP
200 West Madison Street, Suite 3900
Chicago, Illinois 60606
Attn: Mark J. Beaubien
Facsimile: ( 312) 984- 3150
Email: mark. beaubien( c bflcn. com
6. Termination. This Transfer Agreement shall be of no force and effect unless Assignee acquires fee title to the Property on or before June 1, 2018.
7. Governing Law. This Transfer Agreement is made and entered into in the State of California and shall be interpreted, construed and enforced in accordance with the laws of the State of California. Venue shall be in San Joaquin County.
8. Bindin Effect This Transfer Agreement shall apply to, bind, and inure to benefit of Assignor and Assignee, and their respective heirs, legal representatives, successors and assigns.
9. Counterparts. This Transfer Agreement may be executed in one or more counterparts, each of which shall be an original, but all of which shall together constitute one instrument.
IN WITNESS WHEREOF, this Transfer Agreement has been executed as of the date first above written.
ASSIGNOR
RICHLAND DEVELOPERS, INC.,
a Delaware corporation
L
By:
Name: JO lt1%. TTOU
VICe es1 eri
Title:
ASSIGNEE
SOUTH LATHROP LAND, L.L.C., a Delaware limited
liability company
By: CHI West 109 South Lathrop Land, L.P.,
a Delaware limited partnership,
its managing member
By: CHI LTH GP, L.L.C., a Delaware limited
liability company, its er
By:
Nam .
Title: j g
CALIFOFtN1A ALL- PtJRPOSE ACKIdOM/ LE GIVIE IT CIVIL CODE § 1189 i16c2; yr,>'-', n9,'', c A".c A',c>'^- y:'%" 4.ct^x' 7. c. tia7,i.c^( 2- w,.FA'=( 7. 4' h A".^'.^." h"'.^ s A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California /
County of VI Cfl
On " tIA., , l before me, _ Uv S 5, I U,,
Date Here Insert Name and Title of the Officer
A
personally appeared C 1 . ll'" l j,
Name(s) of Signer(s)
who proved to me on the basis of satisfactory evidence to be the person(s whose nameSaj is/ subscribed to the within instrument and acknowledged to me that he/ she/ they executed the same in his/ her/their authorized capacity j es), and that by his/ her/their signature,( j'on the instrument the person(,$); or the entity upon behalf of which the person(,$) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws
of the State of Califomia that the foregoing paragraph
is true and correct.
ALLISON ADAMS
W TNESS m hand and official seal. Commission # 2143555 y Z ,- s Notary Public- California
z D
Orange County
M Comm. Expires Feb 21, 2020+ Signature
ignature of Nofary Public
Place Notary Sea/ Above
OPTIONAL
Though this section is optional, comp/ e[ing this information can deter alteration of the document or fraudulent reattachment of this form fo an unintended document.
Description of Attached Document
Title or Type of Document: Document Date:
Number of Pages: Signer( s) Other Than Named Above:
Capacity( ies) Claimed by Signer( s)
Signer' s Name: Signer' s Name:
Corporate Officer — Title(s): Corporate Officer — Title( s):
Partner — Limited O General Partner — Limited General
Individual Attorney in Fact Individual Attorney in Fact Trustee Guardian or Conservator Trustee Guardian or Conservator Other: Other:
Signer Is Representing: Signer Is Representing:
02014 National Notary Association • www.NationalNotary. org • 1- 800- US NOTARY( 1- 800- 876- 682 Item# 5907 i
CALIFORNIA ALL- PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer cornpleting this certificate verifies only the identity ofthe individual who signed the document to which this certificate is attached, and not the truthfufness, accuracy, or validity of that document.
State of California 1
County of J
On +- '` l TJ before me, a
I
O TX . 1
I G
l
Date H re lnse t Name and Title of the O c
ersonall a
1 ^ P Y PPeared i , •(. t.,,- C. S
Name(/ of Signer(sJj
who proved to me on the basis of satisfactory evidence to be the person(,s/ whose name( tj is/ ay subscribed to the within instrument and acknowledged to me that he/ spE/th y executed the same in his/ h r/tfy2ir authorized capacity( i, and that by his/ Fyer/ t ir signature) on the instrument the person(, or the entity upon behalf of which the person( s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the
PAMELA AIONGI laws of the State of California that the foregoing Notary Public- California i - OrangeCounty ; paragraph is true and correct.
Commiss on# 2230200
MyComm. Expires Mar2, zoz WITNESS my hand and official seal.
Signature
Place Notary Seal and/ or Stamp Above Signature of Notary Public
OPTIONAL
Completing this information can deter alteration of the document or fraudulent reaftachment of this form to an unintended document.
Description of Attached Document
Title or Type of Document: Po, v F-er r, w
Document Date: Number of Pages:
Signer( s) Other Than Named Above:
Capacity( ies) Claimed by Signer( s)
Signer' s Name: Signer' s Name:
Corporate O cer— Title( s): Corporate O cer— Title( s):
Partner— Limited General Partner— Limited General
Individual Attorney in Fact Individual Attorney in Fact Trustee Guardian of Conservator Trustee Guardian of Conservator Other: Other;
Signer is Representing: Signer is Representing:
02017 Nationaf Notary Association
CITY' S CONSENT TO ASSIGN
Pursuant to Section13. 02. 2 of the Development Agreement, the City of Lathrop hereby consents to the Transfer Agreement and acknowledges that Assignor/Richland, having satisfied the conditions to the release set forth in Section 13. 02. 2 of the Development Agreement, shall be released from its obligations under the Development Agreement.
CITY OF LATHROP,
a California municipal law corporation
By:
Name: 5Or11'1 //(/
Tit e: Ul a OV' !/ C!` li'•{'h
Dated:
ATTEST:
By: i
eresa Vargas, City Cl
Dated:
A.PPROVED AS TO LEGAL FORM:
By:
Salvador Navarrete, City Attorney
3 _ z- 7 1
Dated:
CALIFORNIA ALL- PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California .
Countyof J U
On / before me, / Z/ r V u ./ f' // itU/
Date Her Insert ame and Tit/e of the fficer
personally appeared v'" / G/ f' v
Name( s) of Signer( s)
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/ she/ they executed the same in his/ her/ their authorized capacity(ies), and that by his/ her/their signature( s) on the instrument the person( s), or the entity upon behalf of which the person( s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph is true and correct.
TERESAVARGAs WITNESS my hand and official seal.
Gommission t 21 o26i 2
z ,- Notary Public- California D San doaQufn Counry Signature Comm. tes Mar 9, 2019
Signature of No ry ublic
Place Notary Seal Above
OPTIONAL
Though this secrion is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document.
Description of Attached Do ume-n
j s'(' ND• rj=(,/ C Z(p
Title or Type of Document: 1 Document Date: 3 a- /
Number of Pages: Signer( s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer' s Name: Signer' s Name:
Corporate Officer — Title( s): Corporate Officer — Title( s):
Partner — Limited General Partner — Limited General
Individual L] Attorney in Fact Individual 1 Attorney in Fact Trustee 1 J Guardian or Conservator Trustee I. I Guardian or Conservator Other: Other:
Signe,r Is Repr senting: Signer Is Representing:
0 02014 National Notary Association • www. NationalNotary. org • 1- 800- US NOTARY( 1- 800- 876- 6827) Item # 5907 Exhibit A
APN 191- 270- 24 and 191- 270- 26
LEGAL DESCRIPTION
Rea] property in the unincorporated area of the County of San Joaquin, State of California, described as follows:
A PORTION OF SECTIONS 14, 15 AND 16, TOWNSHIP 1 SOUTH, RANGE 6 EAST,
MOUNT DIABLO BASE AND MERIDIAN, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
PARCEL A, AS SHOWN ON THAT CERTAIN PARCEL MAP FILED FOR RECORD FEBRUARY 19, 2004 IN BOOK 23 OF PARCEL MAPS, PAGE 9, SAN JOAQUIN COUNTY RECORDS.
APN 191- 270- 24 and 191- 270- 26
Exhibit A
APN 191- 270- 11, 191- 270- 32 and 191- 270- 33
LEGAL DESCRIPTION
Real property in the unincorporated area of the County of San Joaquin, State of California, described as follows:
PARCEL 1 AS SHOWN ON THAT CERTAIN PARCEL MAP FILED FOR RECORD DECEMBER 30, 2004 IN BOOK 23 OF PARCEL MAPS AT PAGE 91, SAN JOAQUIN COUNTY RECORDS,
TOGETHER WITH ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE COUNTY OF SAN JOAQUIN, STATE OF CALIFORNIA, BEING A PORTION OF PARCEL 2 AS SHOWN ON THAT CERTAIN PARCEL MAP RECORDED IN BOOK 23 OF PARCEL MAPS AT PAGE 91, SAN JOAQUIN RECORDS, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEASTERLY CORNER OF PARCEL 2 AS SHOWN ON THE ABOVE
MENTIONED PARCEL MAP, THENCE FROM SAID POINT OF BEGINNING, ALONG THE EASTERLY LINE OF SAID PARCEL 2, SOUTH 00° 00' 43" WEST 1261. 03 FEET TO THE SOUTHEASTERLY CORNER OF SAID PARCEL 2;
THENCE ALONG THE SOUTHERLY LINE OF SAID PARCEL 2, NORTH 89° 59' 17" WEST 284. 91 FEET;
THENCE LEAVING SAID SOUTHERLY LINE AND ENTERING SAID PARCEL 2, THE FOLLOWING FIVE( 5) COURSES:
1. NORTH 00° 00'43" EAST 721. 00 FEET;
2. SOUTH 89° 59' 17" EAST 18. 00 FEET;
3. NORTH 00° 00'43" EAST 116. 25 FEET;
4. NORTH 89° 59' 17" WEST 18. 00 FEET;
5. NORTH 00 00'43" EAST 424. 00 FEET TO A POIN`I' ON THE NORTHERLY LINE OF SAID PARCEL 2;
THENCE ALONG SAID NORTHERLY LINE, SOUTH 89° 56'35" EAST 284. 91 FEET, TO THE TRUE POWT OF BEGINNING.
THIS LEGAL DESCRIPTION IS MADE PURSUANT TO THAT CERTAIN CERTIFICATE APPROVING A LOT LINE/ BOLJNDARY LINE ADJUSTMENT, CERTIFICATE NO. PA- 0800041, RECORDED MARCH 28, 2008, AS INSTRUMENT NO. 2008- 050423 OF OFFICIAL RECORDS.
APN 191- 270- 11, 191- 270- 32 and 191- 270- 33
Exhibit A
APN 191- 280- 09 AND 191- 280- 10
LEGAL DESCRIPTION
Real properry in the unincorporated area of the County of San Joaquin, State of Califomia, described as follows:
PARCEL ONE( APN 191- 280- 09):
A TRACT OF LAND SITUATED IN SECTION NINE( 9) AND TEN( 10), TOWNSHIP ONE( 1) SOUTH, RANGE SIX( 6) EAST, MOUNT DIABLO BASE AND MERIDIAN, DESCRIBED AS FOLLOWS:
COMMENCING AT AN IRON PIPE AT FENCE CORNER AT THE NORTHEAST CORNER OF THE BRANDT RANCH, SAID PII'E BEING IN THE WEST LINE OF LOT LINE NINE( 9) OF SHIPPEE FRENCH CAMP TRACT, AND 12. 25 CHAINS NORTH OF THE CENTER OF SAID SECTION 10; THENCE DUE WEST ALONG FENCE ON THE NORTH LINE OF THE BRANDT PROPERTY, 456. 5 FEET TO AN IRON PIPE IN THE SOUTHERLY LINE OF COUNTY ROAD, KNOWN AS ROBERTS ISLAND ROAD; THENCE ALONG THE SOUTHERLY LINE OF SAID ROAD AS FOLLOWS:
SOUTH 53° 10` WEST, 50. 04 FEET TO AN IRON PIPE; DUE WEST 1460. 55 FEET TO AN IRON PIPE AT THE TRUE POINT OF BEGINNING OF THE FOLLOWING DESCRIBED TRACT; THENCE CONTINUE ALONG THE SOUTH LINE OF COUNTY ROAD, DUE WEST 1310. 0 FEET TO AN IRON PIPE; THENCE SOUTH O1° 45` EAST, 3417. 0 FEET TO AN IRON PIPE IN THE SOUTH LINE OF THE BRANDT PROPERTY; TF-IENCE SOUTH 89° 45` 30" EAST ALONG THE SOUTH LINE OF BRANDT PROPERTY, 1310. 2 FEET TO AN IRON PIPE; THENCE NORTH 1° 45` WEST, 3422. 5 FEET TO THE TRUE POINT OF BEGINNING.
EXCEPT THAT PORTION OF SAID LAND DESCRIBED IN DEED RECORDED MARCH 17, 1967 IN VOL. 3111 OF OFFICIAL RECORDS, PAGE 215 SAN 70AQUIN COUNTY RECORDS.
PARCEL TWO( APN 191- 280- 09):
A TRACT OF LAND SITUATED IN SECTION NINE( 9), TOWNSHIP ONE( 1) SOUTH, RANGE SIX 6) EAST, MOUNT DIABLO BASE AND MERIDIAN, DESCRIBED AS FOLLOWS:
COMMENCING AT AN IRON PIPE AT FENCE CORNER AT THE NORTHEAST CORNER OF THE BRANDT RANCH, SAID IRON PIPE BEING IN THE WEST LINE OF LOT NINE( 9) OF SHIPPEE FRENCH CAMP TRACT AND 12. 25 CHAINS NORTH OF THE CENTER OF SECTION TEN( 10), SAID TOWNSHIP AND RANGE; THENCE DUE WEST ALONG FENCE ON THE NORTH LINE OF THE BRANDT RANCH, 456. 5 FEET TO AN IRON PIPE IN THE SOUTHERLY LINE OF COUNTY ROAD, KNOWN AS THE ROBERTS ISLAND ROAD; THENCE ALONG THE SOUTHERLY LINE OF SAID ROAD AS FOLLOWS:
SOUTH 53° IO` WEST, 50. 04 FEET TO AN TRON PIPE, DUE WEST 2770. 55 FEET TO AN IRON PIPE; THENCE LEAVIIVG ROAD, SOUTH O1° 45` EAST, 1153. 0 FEET TO AN IRON PIPE AT PROPERTY CORNER; THENCE CONTINUE SOUTH 1° 45` EAST, 1168. 2 FEET TO AN IRON PIPE AT THE TRUE POINT OF BEGINNING OF THE FOLLOWING DESCRIBED TRACT OF LAND; THENCE Exhibit A
CONTINUE SOUTH O 1° 45` EAST 1095. 8 FEET TO AN IRON PIPE IN THE SOUTH LINE OF THE BRANDT PROPERTY; THENCE ALONG THE SOUTH LINE OF THE BRANDT PROPERTY, NORTH 89° 45` 30" WEST, 2269 FEET TO THE RIGHT BANK OF THE SAN JOAQUIN RIVER;
THENCE DOWNSTREAM ALONG THE RIGHT BANK OF THE SAN JOAQUIN RIVER AS FOLLOWS:
NORTH O1° 45` EAST, 382 FEET; NORTH 53 10` EAST, 340 FEET; NORTH40° 30` EAST, 495 FEET; NORTH 20° 10` EAST, 136. 7 FEET; THENCE LEAVING THE RIVER DLTE EAST 1572. 3 FEET TO THE TRUE POINT OF BEGINNING.
APN 191- 280- 09 AND 191- 280- 10
Exhibit A
APN 191- 280- 11
LEGAL DESCRIIPTYON
Real property in the unincorporated area of the County of San Joaquin, State of California, described as foIlows:
A PORTION IN SECTION 9, TOWNSHIP 1 SOUTH, RANGE 6 EAST, MOUNT DIABLO BASE AND MERIDIAN, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCWG AT AN IRON PIPE AT FENCE CORNER AT THE NORTHEAST CORNER OF THE BRANDT RANCH, SAID IRON PIPE BEING IN THE WEST LIlVE OF LOT 9 OF SHIPPEE FRENCH CAMP TRACT, AND 12. 25 CHAINS NORTH OF THE CENTER OF SECTION 10, SAID TOWNSHIP AND RANGE; THENCE DUE WEST ALONG FENCE ON THE NORTH LINE OF
BRANDT RANCH,
456. 5 FEET TO AN IRON PIPE IN THE SOUTHERLY LINE OF COUNTY ROAD KNOWN AS THE ROBERTS ISLAND ROAD; THENCE ALONG THE SOUTHERLY LINE OF SAID ROAD AS FOLLOWS: SOUTH 53° 10' WEST, 0. 04 FEET TO AN IRON PIPE; DUE WEST 2770.55 FEET TO AN IRON PIPE; THENCE LEAVING ROAD, SOUTH 1° 45' EAST, 1153 FEET TO AN IRON PIPE AT THE TRUE POINT OF BEGINNING OF THE FOLLOWING AND WITHIN DESCRIBED 40.585 ACRE TRACT OF LAND; THENCE CONTINUE SOUTH 1° 45' EAST, 1168. 2 FEET TO AN IRON PIPE; THEIVCE DUE WEST 15723 FEET TO THE RIGHT BANK OF THE SAN JOAQUIN RIVER;
THENCE DOWNSTREAM ALONG THE RIGHT BANK OF THE SAN JOAQUIN RIVER, AS FOLLOWS: NORTH 25° 10' EAST, 306.8 FEET; NORTH 2° 15' EAST, 210 FEET; NORTH 33° OS' EAST, 210 FEET; NORTH 33 OS' WEST, 207 FEET; NORTH 56° 25 ' WEST, 236 FEET TO PROPERTY CORNER; THENCE ALONG PROPERTY LINE, AS FOLLOWS: NORTH 40° 23' EAST, 494 FEET TO AN IRON PIPE; DUE EAST 1387. 65 FEET TO THE TRUE POINT OF BEGINNING.
APN 191- 280- 11
Exhibit A
APN 193- 340- 03
LEGAL DESCRIPTION
Real property in the unincorporated area of the County of San 7oaquin, State of California, described as follows:
THAT CERTAIN REAL PROPERTY SITUATED IN SECTIONS ( 3) AND G OF C. M. WEBER GRANT, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT A STEEL AXLE AT TNE SOUTHWEST CORNER OF SAID C. M. WEBER GRANT; THENCE NORTI3 89° 23` EAST AL01VG THE SOUTH LIlVE OF SAID C. M. WEBER GRANT, BEING THE SOUTH LINE OF BRIGGS PROPERTY, 4004. 07 FEET TO A STEEL AXLE AT THE SOUTHWEST CORNER OF PETERS, 41. 56 ACRE TRACT DESCRIBED IN DEED RECORDED IN VOL. 592 OF OFFICIAL RECORDS, PAGE 341; THENCE ALONG THE WEST LINE OF SAID PETERS PROPERTY, NORTH 0° 37' WEST, 1191. 8 FEET TO A STEEL AXLE AT THE 1VORTHWEST CORNER OF SAID
41. 56 ACRE TRACT; THENCE SOUTH 89° 52' 15" WEST, 691. 05 FEET TO A POIN'I' DESIGNATED A; THENCE NORTH 0° 07` 45" WEST, 50 FEET TO A POINT IN THE SOUTH LINE OF THE STUART 60 ACRE TRACT DESCRIBED IN DEED RECORDED IN VOL. 506 OF OFFICIAL RECORDS, PAGE 489; THENCE ALONG THE SOUTH LINE OF STUART PROPERTY, SOUTH 89° 52' 15" WEST, 1607. 48 FEET TO THE SOUTHWEST CORNER OF THE STUART 5 ACRE TRACT DESCRIBED IN DEED RECORDED IN VOL. 531 OF OFFICIAL RECORDS, PAGE 332; THENCE ALONG THE WEST LINE OF SAID 5 ACRE TRACT, NORTH 0° 07" 45" WEST, 557. 77 FEET TO THE NORTHWEST CORNER OF SAID 5 ACRE TRACT; THENCE ALONG BOUNDARY LINE OF ABOVE MENTIONED STUART 60 ACRE TRACT, SOUTH 89° 52" 15" WEST, 1753. 02 FEET TO A CORNER OF SAID 60 ACRE TRACT IN THE WEST LINE OF SAID C. M. WEBER GRANT; THENCE ALONG THE WEST LIlVE OF SAID C. M. WEBER GRANT, SOUTH 1° 56` EAST, 1834. 5 FEET TO THE POINT OF BEGINNING.
EXCEPT THEREFROM THAT PORTION DESCRIBED IN DEED TO ROSAURO A. DACLAN AND PAULA D. DACLAN, HIS WIFE, RECORDED JANUARY 22, 1952 IN VOL. 1389 OF OFFICIAL RECORDS, PAGE 359, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
A PORTION OF SECTION G OF C. M. WEBER` S GRANT, MORE PARTICULARLY DESCRIBBD AS FOLLOWS:
BEGINI iING AT THE SOUTHWEST CORNER OF SECTION G OF SAID WEBER GRANT; THENCE NORTH 1° 56` WEST ALONG THE WEST LINE OF SAID SECTION, A DISTANCE OF 1834. 5 FEET TO THE SOUTHWEST CORNER OF THE STUART 60 ACRE TRACT, RECORDED NOVEMBER 6, 1935 IN VOL. 506 OF OFFICIAL RECORDS, PAGE 489; THENCE SOUTH 89° 30` EAST ALONG THE SOUTH LINE OF SAID 60 ACRE TRACT, A DISTANCE OF 1753. 02 FEET TO THE NORTHWEST CORNER OF THE STUART 5 ACRES TRACT, DESCRIBED IN DEED RECORDED JLTNE 5, 1936 W VOL. 531 OF OFFICIAL RECORDS, PAGE 332; THENCE SOLJTH 0°07`45" WEST ALONG THE WEST LINE OF SAID 5 ACRE TRACT AND SAID WEST LINE PROJECTED SOUTHERLY TO A POINT IN THE SOUTH LINE OF SAID WEBER GRANT; THENCE WEST ALONG THE SOUTH LINE OF SAID WEBER GRANT TO THE POINT OF BEGINNING.
APN 193- 340- 03
Exhibit A
APN 241- 020- 70
LEGAL DESCRIPTION
Real property in the unincorporated area of the County of San] oaquin, State of California, described as follows:
A PORTION OF SECTION 3, TOWNSHIP 2 SOUTH, RANGE 6 EAST, MOUNT DIABLO BASE AND MERIDIAN, DESCRIBED AS FOLLOWS:
COMMENCING AT THE INTERSECTION OF THE SOUTH RIGHT OF WAY LINE OF THE
CENTRAL PACIFIC RAILWAY COMPANY WITH THE QUARTER SECTION LINE NORTH AND SOUTH THROUGH SAID SECTION 3; THENCE RUNNING SOUTHWESTERLY ALONG SAID
SOUTH RIGHT OF WAY LINE TO THE INTERSECTION OF THE EAST LINE OF THE MOSSDALE ROAD PRODUCED TO MEET THE SAME; BEING THE POINT OF BEGINNING OF THE TRACT OF LAND HEREIN DESCRIBED; THENCE RUNNING SOUTH TO THE SOUTH LINE OF SECTION 3; THENCE WEST TO THE RIGHT BANK OF THE SAN JOAQUIN RIVER; THENCE FOLLOWING
THE MEANDERS OF SAID RIVER DOWNSTREAM TO ITS INTERSECTION WTTH THE EAST LINE OF THE MOSSDALE ROAD; THENCE FOLLOWING SAID LINE OF ROAD
NORTHEASTERLY TO ITS INTERSECTION WITH THE SOUTH LINE OF THE RIGHT OF WAY OF CENTRAL PACIFIC RAILWAY COMPANY; THENCE NORTHEASTERLY ALONG SAID RIGHT OF WAY TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM A 100 FOOT STRIP OF LAND CONVEYED TO STATE OF CALIFORNIA FOR HIGHWAY PURPOSES BY DEED RECORDED APRIL 17, 1925 IN BOOK OF OFFICIAL RECORDS, BOOK 67, PAGE 375, SAN JOAQLTIN COUNTY RECORDS.
ALSO EXCEPTING THEREFROM ALL THAT PORTION OF THE FOLLOWING DESCRIBED
REAL PROPERTY LYING EAST OF THE EAST LINE OF THE OLD MOSSDALE ROAD AND NORTH OF THE NORTH LINE OF THE NEW STATE HIGHWAY:
COMMENCING AT A POINT 50 FEET SOUTH OF INTERSECTION OF CENTER LTNE OF
CENTRAL PACIFIC RAILWAY RIGHT OF WAY WITH THE ONE- HALF SECTION LINE RUNNINC NORTH AND SOUTH THROUGH SECTION 3, TOWNSHIP 2 SOUTH, RANGE 6 EAST, MOUNT DIABLO BASE AND MERIDIAN; THENCE RUNNING SOUTH ALONG SAID ONE- HALF SECTION LINE TO THE SOUTH LINE OF SAID SECTION 3; THENCE WEST ALONG THE SOUTH LINE OF SECTION 3 TO THE RIGHT BANK OF SAN JOAQUIN RIVER; THENCE FOLLOWING
THE MEANDERINGS OF SAID RIVER DOWNSTREAM TO ITS INTERSECTION WITH THE EAST LINE OF OLD MOSSDALE ROAD; THENCE ALONG THE EAST LINE OF SAID OLD MOSSDALE ROAD NORTHEASTERLY TO ITS INTERSECTION WITH A LINE PARALLEL WITH AND 50 FEET SOUTH OF THE CENTER LINE OF CENTRAL PACIFIC RAILWAY RIGHT OF WAY; THENCE NORTHEASTERLY ALONG SAID LINE PARALLEL WITH A1VD 50 FEET SOUTH OF
THE CENTER LINE OF THE CENTRAL PACIFIC RAILWAY RIGHT OF WAY TO THE POINT OF COMMENCEMENT AND BEING A PORTION OF THE WEST 1/ 2 OF SECTION 3, TOWNSHIP 2 SOUTH, RANGE 6 EAST, MOUNT DIABLO BASE AND MERIDIAN.
ALSO EXCEPTING THEREFROM ANY PORTION THEREOF LYING WITHIN THE 400 FOOT CONGRESSIONAL GRANT OF CENTRAL PACIFIC RAILWAY COMPANY.
Exhibit A
ALSO EXCEPTING THEREFROM A TRACT OF LAND CONVEYED TO STATE OF CALIFORNIA FOR HIGHWAY PURPOSES BY DEED RECORDED AUGUST 16, 1928 IN BOOK OF OFFICIAL RECORDS, BOOK 247, PAGE 165, SAN JOAQUIN COUNTY RECORDS.
ALSO EXCEPTING THEREFROM THAT PORTION CONVEYED TO STATE OF CALIFORNIA FOR HIGHWAY PURPOSES BY DEED RECORDED OCTOBER I1, 1955 IN BOOK OF
OFFICIAL
RECORDS, BOOK 1797, PAGE 536, SAN JOAQUIN COUNTY RECORDS.
ALSO EXCEPTING THEREFROM THAT PORTION CONVEYED TO STATE OF CALIFORNIA FOR HIGHWAY PURPOSES BY DEED RECORDED JANUARY 8, 1945 IN BOOK OF OFFICIAL RECOR.DS, BOOK 907, PAGE 334, SAN JOAQUIN COUNTY RECORDS.
ALSO EXCEPTING THEREFROM THAT PORTION CONVEYED TO STATE OF CALIFORNIA BY DEED RECORDED APRIL 17, 1969 IN BOOK OF OFFICIAL RECORDS, BOOK 3297, PAGE 147, SAN JOAQUIN COUNTY RECORDS.
ALSO EXCEPTING THEREFROM THAT PORTION CONVEYED TO RECLAMATION DISTRICT NO. 17, A PUBLIC AGENCY BY DEED RECORDED APRIL 22, 2010 AS INSTRUMENT NO. 2010055050 OF OFFICIAL RECORDS, SAN JOAQUIN COUNTY RECORDS.
ALSO EXCEPTING ANY PORTION OF THE LAND WITHIN THE NATURAL BED OF THE SAN
JOAQUIN RIVER AND ITS TRIBUTARIES BELOW THE ORDINARY HIGH WATER MARK
WHERE IT WAS LOCATED PRIOR TO ANY ARTIFICIAL OR AVULSIVE CHANGES IN THE LOCATION OF THE RIVER.BED.
APN 241- 020- 70
Exhibit A
APN 241- 030- 13
LEGAL DESCRIPTION
Real property in the unincorporated area of the County of San Joaquin, State of California, described as follows:
PARCEL ONE:
A PORTION OF SECTIONS 3 AND 10, TOWNSHIP 2 SOUTH, RANGE 6 EAST, MOUNT DIABLO BASE AND MERIDIAN, DESCRIBED AS FOLLOWS:
COMMENCING AT A POINT ON THE ONE-HALF SECTION LINE, 6. 44 CHAINS WEST OF THE QUARTER SECTION CORNER OF THE EAST SIDE OF SECTION 10, TOWNSHIP 2 SOUTH, RANGE 6 EAST, MOUNT DIABLO BASE AND MERIDIAN; THENCE NORTH ALONG A FENCE AND 6.44 CHAINS WEST OF THE SECTION LINE TO THE SOUTHERLY LINE OF THE RIGHT OF WAY OF THE CENTRAL PACIFIC RAILWAY COMPANY; THENCE SOUTHWESTERLY ALONG
SAID RIGHT OF WAY TO THE ONE- HALF SECTION LINE RUNNING NORTH AND SOUTH THROUGH THE CENTER OF SECTION 3, SAID TOWNSHIP AND RANGE; THENCE SOUTH TO THE QUARTER SECTION CORNER BETWEEN SECTIONS 3 AND 10, SAID TOWNSHIP AND RANGE; THENCE WEST ALONG THE QUARTER SECTION LIlVE TO THE EASTERLY BANK OF THE SAN JOAQUIN RIVER;THENCE MEANDERING THE EASTERLY BANK OF SAID RIVER UPSTREAM TO WALTHALL SLOUGH;THENCE UP SAID SLOUGH TO A POINT 15. 37 CHAINS WEST OF THE EAST LINE OF SECTION 10, SAID TOWNSHIP AND RANGE; THENCE NORTH
PARALLEL TO SAID SECTION LINE, TO THE QUARTER SECTION LINE, EAST AND WEST THROUGH THE CENTER OF SAID SECTION I O; THENCE EAST TO THE POINT OF BEGINNING.
SAVING AND EXCEPTING THEREFRQM THAT CERTAIN STRIP OF LAND CONTAINING
7. 57 ACRES, CONVEYED BY ANGEL LITCHFIELD TO ALAMEDA AND SAN JOAQUIN RAILROAD COMPANY BY DEED DATED AUGUST 31, 1885, FTLED FOR RECORD IN BOOK A" OF DEEDS, VOL. 87, PAGE 474, SAN JOAQUIN COUNTY RECORDS.
ALSO SAVING AND EXCEPTING THEREFROM THAT CERTAIN PIECE OF LAND 100 BY 150 FEET, CONVEYED BY ANGEL LITCHFIELD TO RECLAMATION DISTRICT NO. 17, BY DEED DATED FEBRUARY 9, 1909, FILED FOR RECORD IN BOOK" A" OF DEEDS, VOL. 173, PAGE 470, SAN JOAQUIN COUNTY RECORDS.
ALSO EXCEPT THEREFROM THAT PORTION CONVEYED TO THE STATE OF CALIFORNIA BY DEED RECORDED OCTOBER 5, 1955 IN BOOK 1796 OF OFFICIAL RECORDS, PAGE 30, SAN JOAQUIN COLTNTY RECORDS.
ALSO EXCEPT THEREFROM THAT PORTION CONVEYED TO ROBERT H. BROWN, ET UX, RECORDED JUNE 4, 1964 IN BOOK 2829 OF OFFICIAL RECORDS, PAGE 434, SAN JOAQUIN COUNTY RECORDS.
ALSO EXCEPT THEREFROM THAT PORTION CONVEYED TO THE STATE OF CALIFORNIA, BY DEED RECORDED AUGUST 19, 1974 IN BOOK 3903 OF OFFICIAL RECORDS, PAGE 106, SAN JOAQUIN COIJNTY RECORDS.
ALSO EXCEPTING THEREFROM THAT PORTION OF THE LAND DESCRIBED IN THE GRANT Exhibit A
DEED TO RECLAMATION DISTRICT NO. 17, A PUBLIC AGENCY RECORDED APRIL 22, 2010 AS INSTRUMENT NO. 2010-055046 OF OFFICIAL RECORDS.
PARCEL TWO:
AN EASEMENT 20 FEET IN WIDTH FOR DRAINAGE PURPOSES OVER A PORTION OF SECTION 10, TOWNSHIP 2 SOUTH, RANGE 6 EAST, MOUNT DIABLO BASE AND MERIDIAN, THE CENTER LINE OF WHICH IS MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT A POINT IN THE CENTER LINE OF THE WESTERN PACIFIC RAILROAD
RIGHT OF WAY, AT THE EASTERLY END OF A STEEL BRIDGE ACROSS THE SAN JOAQUIN RIVER; RUNNING THENCE ALONG THE CENTERLINE OF SAID RIGHT OF WAY, NORTH 68° 49' EAST 350 FEET; THENCE SOUTH 23° 11' EAST 50 FEET TO A POINT IN THE SOUTHERLY LINE
OF THE WESTERN PACIFIC RAILROAD COMPANY RIGHT OF WAY, SAID POINT BEING IN
THE CENTERLINE OF A DRAINAGE CANAL AND ALSO BEING THE TRUE POINT OF BEGINIVING; THENCE RUNNING ALONG THE CENTERLINE OF SATD DRAINAGE CANAL SOUTH 23° 11' EAST, 238 FEET, MORE OR LESS, TO THE INTERSECTION OF SAID CENTERLINE
WITH THE CENTERLINE OF A DRAINAGE CANAL RUNNING IN A GENERALLY NORTHWESTERLY DIRECTION; THENCE ALONG THE CENTERLINE OF SAID DRAINAGE CANAL RUNNING IN A NORTHWESTERLY DIRECTION ON THE FOLLOWING TWO COURSES:
1. NORTH 62° 09' 41" WEST 190 FEET;
2. NORTH 78° 26'34" WEST 29.00 FEET TO THE WESTERLY END OF A CONCRETE INTAKE STRUCTURE; THENCE SOUTH 66° 49' WEST 235 FEET, MORE OR LESS, TO THE EASTERLY BANK OF THE SAN JOAQUIN RIVER, AS RESERVED IN DEED TO ROBERT B. BROWN, ET UX, RECORDED JiJNE 4, 1964 IN BOOK 2829 OF OFFICIAL RECORDS, PAGE 434, SAN JOAQUW COUNTY RECORDS.
APN: 241- 030- 13
Exhibit A
APN 241- 410-02
LEGAL DESCRIPTION
Real property in the unincorporated area of the County of San Joaquin, State of California, described as follows:
A PORTION OF THE WEST 1/ 2 OF SECTION 2 AND A PORTION OF THE EAST 1/ 2 OF SECTION 3, TOWNSHIP 2 SOUTH, RANGE 6 EAST, MOUNT DIABLO BASE AND MERIDIAN, DESCRIBED AS FOLLOWS:
COMMENCING AT A POINT ON THE SOUTHERLY RIGHT OF WAY LINE OF STATE HIGHWAY RT. 120, SAID POINT BEING A CONCRETE MOIVUMENT MARKING THE WEST LINE OF MCALPIN PROPERTY AS DESCRIBED IN DEED RECORDED JULY 7, 1954 IN BOOK 1648, PAGE 424; THENCE SOUTH 0 DEGREES 18 MINUTES WEST, ALONG SAID WEST LINE, A DISTANCE OF 1438 FEET; THENCE DUE EAST A DISTANCE OF 25 FEET TO THE NORTHWEST CORNER OF PROPERTY AS DESCRIBED IN DEED TO TRACEY E. DALE, ET UX, RECORDED IN BOOK 2788 PAGE 514; THENCE NORTH 84 DEGREES 30 MINUTES 52 SECONDS EAST, ALONG THE
SOUTH LINE OF PROPERTY AS DESCRIBED IN DEED TO RUTH REHAK, RECORDED NOVEMBER 18, 1966 IN BOOK 3088, PAGE 198, OFFICIAL RECORDS, A DISTANCE OF 636 FEET TO THE TRUE POINT OF BEGTNNING OF THE HEREINAFTER DESCRIBED PARCEL:
THENCE CONTINUE NORTH 84 DEGREES 30 MINUTES 52 SECONDS EAST, A DISTANCE OF 430. 52 FEET TO THE EAST LINE OF PROPERTY DESCRIBED AS THE— NORTH PARCEL" IN THE INTERLOCUTORY JUDGMENT OF DNORCE, RECORDED JUNE 16, 1966 IN BOOK 3057, PAGE 206; THENCE NORTH 4 DEGREES 08 MINUTES 50 SECONDS EAST, ALONG THE EAST LINE OF SAID— NORTH PARCEL", A DISTANCE OF 1655. 57 FEET, MORE OR LESS, TO THE SOUTHERT, Y LINE OF STATE HIGHWAY RT. 120; THENCE SOUTHWESTERLY ALONG THE SOUTHERLY LINE OF SAID HIGHWAY A DISTANCE OF 411 FEET; THENCE SOUTHERLY, PARALLEL WITH THE EASTERLY LINE OF SAID REHEK PROPERTY; A DISTANCE OF 500 FEET; THENCE SOUTHWESTERLY, PARALLEL WITH THE SOUTHERLY LWE OF SAID HIGHWAY 120, TO THE EASTERLY LINE OF REHEK PROPERTY; THENCE SOUTHERLY,
ALONG THE EAST LINE OF SAID REHAK PARCEL TO THE TRUE POINT OF BEGINNING
EXCEPT THEREFROM THAT PORTION DESCRIBED IN DEED TO THE STATE OF CALIFORNIA, RECORDED JUNE 21, 1977, IN BOOK 4274, PAGE 697, OFFICIAL RECORDS.
ALSO EXCEPT THEREFROM PARCELS A AND B AS SHOWN ON PARCEL MAP FILED JANUARY I0, 1978 IN BOOK 5 OF PARCEL MAPS, AT PAGE 120, SAN JOAQUIN COiJNTY RECORDS.
APN 241- 410- 02
Exhibit A
APN 241- 410- 03
LEGAL DESCRIPTION
Real property in d e unincorporated area of the County of San Joaquin, State of California, described as follows:
PARCEL ONE:
PARCEL A, AS SHOWN ON PARCEL MAP FILED OCTOBER 31, 1980 IN VOL. 9 OF PARCEL MAPS, PAGE 173, SAN JOAQUIN COUNTY RECORDS.
PARCEL TWO:
AN EASEMENT FOR INGRESS AND EGRESS OVER AND UPON THE FOLLOWING DESCRIBED PROPERTY:
A PORTION OF SECTION 3, TOWNSHIP 2 SOUTH, RANGE 6 EAST, MOUNT DIABLO BASE AND MERIDIAN, DESCRIBED AS FOLLOWS:
A STRIP OF LAND 25 FEET WTDE, THE WEST LINE THEREOF BEING DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON THE SOUTHERLY RIGHT OF WAY LINE OF STATE HIGHWAY ROUTB 120, SAID POINT BEING A CONCRETE MONUMENT MARKING THE WEST LINE OF THE MCALPIN PROPERTY; THENCE SOUTH 0° 18' WEST ALONG THE WEST LINE OF SAID MCALPW PROPERTY A DISTANCE OF 1961 FEET TO A POINT ON THE NORTH LINE OF THE DESCRIBED IN DEED TO JAMES ROBERT POWELL, ET UX, RECORDED SEPTEMBER 19, 1967 IN BOOK 3153 OF OFFICIAL RECORDS, PAGE 465, AND BEING THE TERMINATION POINT OF SAID LINE.
EXCEPT THEREFROM THAT PORTION OF PROPERTY AS DESCRIBED IN THE FINAL ORDER OF CONDEMNATION RECORDED AUGUST 16, 1977 IN BOOK 4295 OF OFFICIAL
RECORDS, PAGE
676.
APN: 241- 410- 030- 000
i
Exhibit A
APN 241- 410- 06
LEGAL DESCRIPTION
Real property in the unincorporated area of the County of San Joaquin, State of California, described as foilows:
PARCEL C, AS SHOWN ON PARCEL MAP FILED DECEMBER 28, 1977 IN BOOK 5 OF PARCEL MAPS, PAGE 105, SAN JOAQUIN COUNTY RECORDS.
APN 241- 410- 06
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Exhibit A
APN 241- 410- 07
LEGAL DESCRIPTION
Real property in the unincorporated area of the County of San Joaquin, S[ ate of Catifornia, described as follows:
PARCEL B, AS SHOWN ON PARCEL MAl' FILBD OCTOBER 31, 1980 IN VOL. 9 OF PARCEL MAPS, PAGE i73, SAN JOAQUIN COUNTY RECORDS.
APN 241- 410-07
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