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ZACHARIAS PROJECT AGREEMENT
FOR THE IVY ROSE AREA
This Zacharias Project Agreement for the Ivy Rose Area (“Agreement”) is made by and between the CITY OF PATTERSON, a California municipal corporation (“City”) and the following developers: ZACHARIAS RANCH, TPF DEVELOPMENT, LAKESIDE HILLS, and KEYSTONE RANCH (“Developer” or “Developers”). City and Developers may be individually referred to as a “Party” or collectively as the “Parties.” There are no other parties to this Agreement.
RECITALS
A. City has adopted certain approvals relating to the Zacharias Master Plan (“Master Plan”), including but not limited to, a General Plan Amendment, Environmental Impact Report, the Master Plan, and Zoning, as well as pertinent agreements between Developers and City (collectively, the “Zacharias Project”).
B. Developers intend to develop distinct areas of the Master Plan, as further described in Exhibit A attached hereto.
C. The “Ivy Rose Area” is located in the eastern portion of the Master Plan and contains existing residences and agricultural lands, as further described in Exhibit B, attached hereto.
D. The City has prepared a “Form Agreement” to enter into with landowners in the Ivy Rose Area, establishing certain terms and conditions for their properties upon annexation of the Master Plan into City limits. Execution of the Form Agreement is contingent on Developers agreeing to construct certain public improvements for the benefit of the Ivy Rose Area.
E. The Form Agreement will provide benefits to Developers by advancing development of the Master Plan.
F. Developers hereby agree to construct and finance the following public improvements, subject to the terms and conditions described herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
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AGREEMENT
1. Applicability. Construction of the public improvements described herein shall be subject to all applicable City ordinances, plans, rules, and standards, as may be updated from time to time (collectively, “City Standards”). In the event of any conflict between this Agreement and City Standards, this Agreement shall govern.
2. Public Improvements. Developers hereby agree to construct, install, and pay for the following public improvements, for the benefit of landowners in the Ivy Rose Area (collectively, the “Ivy Rose Improvements”):
(a) The water main in Ivy Avenue as further described in the Master Plan, and laterals stubbed out from this main to the property lines of existing dwellings along Ivy Avenue.
(b) The water and sewer mains in Rose Avenue as further described in the Master Plan, and laterals stubbed out from these mains to the property lines of existing dwellings along Rose Avenue.
(c) The water and sewer mains in Ward Avenue as further described in the Master Plan, and laterals stubbed out from these mains to the property lines of existing dwellings along Ward Avenue.
(d) The sewer collection line improvements necessary to serve the Ivy Rose Area. Such improvements may include the sewer line improvements from the eastern boundary of the Master Plan area north to Vicke Lynn Lane and southeast to M Street, as further described in the Master Plan.
(e) A sound wall along the easterly paseo described in the Master Plan, adjacent to the Ivy Rose Area.
3. Water and Sewer Pipelines. Developer obligations for the water and sewer pipelines described herein shall be subject to the following provisions:
(a) Water and Sewer Laterals. The obligation of Developers to stub out water and sewer laterals to the property line of parcels within the Ivy Rose Area shall only include those dwelling units existing as of the Effective Date. The obligation to stub out water and sewer laterals shall not include laterals for new dwelling units or other new structures or facilities constructed after the Effective Date. The existing dwelling units within the Ivy Rose Area are further described in Exhibit B attached hereto. (b) Conditions for Construction.
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(i) The distribution mains and laterals shall be constructed in accordance with the Zacharias Project, City Standards, and improvement plans approved by City.
(ii) Construction of the service line laterals shall extend to the property line of parcels in the Ivy Rose Area. City in its sole discretion shall determine the location of the service line laterals after consultation with each affected landowner in the Ivy Rose Area.
(iii) Developers may request that City construct the pipeline improvements or any part thereof. In such event and if City agrees, Developers shall pay for City’s costs to construct the Ivy Rose Improvements. (c) Timing of Construction.
(i) The distribution mains and service line laterals along Rose Avenue shall be installed in conjunction with development of the Keystone Ranch parcels, as further described in Exhibit A attached hereto. (ii) The distribution mains and service line laterals along Ivy Avenue shall be installed in conjunction with development of the Lakeside Hills parcels, as further described in Exhibit A attached hereto. (iii) The distribution mains and service line laterals along Ward Avenue shall be installed in conjunction with development of the adjacent project areas (referring to the Keystone Ranch or Lakeside Hills project areas), as further described in Exhibit A attached hereto.
4. Sound Wall. The following conditions shall apply to the sound wall along the easterly paseo of the Master Plan:
(a) The sound wall shall extend along the entire paseo, from the northern boundary to the southern boundary of the Master Plan.
(b) City shall determine the design and materials of the sound wall. This shall include a CMU block wall, brick, or other type of durable material. (c) The height of the sound wall shall be at least seven (7) feet. (d) Construction of the sound wall shall occur as the parcels in the Master Plan adjacent to the Ivy Rose Area develop and be phased to coincide with the undergrounding of the irrigation canal and the installation of the paseo on these adjacent parcels. {CW136569.18}
(e) The segment of the sound wall extending south from the southeastern corner of the Keystone Ranch project area to the southern boundary of the Master Plan area, as indicated in Exhibit B attached hereto (the “Southern Segment”), shall be installed in conjunction with the portion of the sound wall immediately to the north of the Southern Segment. The Form Agreement shall provide City with easements over parcels in the Ivy Rose Area, as may be necessary for construction and maintenance of this Southern Segment. City agrees to not require undergrounding of the irrigation canal in this area of the Southern Segment.
(f) The sound wall may require designated access points, as to be determined by City in cooperation with the Patterson Irrigation District ("PID"). Man-doors shall be installed along the sound wall, as may be required by PID for operation and delivery of irrigation water. The purpose of this condition is to provide PID with adequate access to operate and maintain its canal.
(g) Developers shall maintain the sound wall in good condition, prior to City’s acceptance and ownership of the sound wall. “Good condition” shall include keeping the sound wall clear of graffiti.
(h) City’s acceptance of the sound wall for its ownership and operation shall occur as follows. City agrees to accept the sound wall in segments. Acceptance of the sound wall shall occur at such time that City has accepted all public improvements for tentative maps that are adjacent to the Ivy Rose Area. Upon Developer’s written request, City in its sole discretion may agree to accept the sound wall at an earlier time. (i) Upon City’s acceptance of the sound wall, Developers shall be required to provide ongoing funding for City’s maintenance costs, in a form acceptable to City. City agrees that the maintenance costs for the sound wall may be included in the maintenance community facilities district for the Zacharias Project. (j) Upon City assuming ownership and maintenance of the sound wall, Developer agrees to provide easements for the benefit of City, as may be necessary to allow City and City’s agents to use, access, and maintain the sound wall. City shall reasonably determine the Developer parcels subject to the easement. The easement shall be in a form approved by City and recorded with the Stanislaus County Recorder’s Office. (k) Developers acknowledge that City may require removal of the sound wall in the future, depending on future development of the Ivy Rose Area. Removal of the sound wall shall not be an obligation of Developers.
5. Condition of Zacharias Project. Developers hereby acknowledge and accept that construction and financing of the Ivy Rose Improvements are conditions for development of the Zacharias Project.
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6. Infrastructure CFD. The Ivy Rose Improvements will be eligible for inclusion in the infrastructure community facilities district formed for the Zacharias Project (“Infrastructure CFD”).
7. Default; Withholding of Permits. Where any Developer is in breach of any obligation described herein, that Developer shall be entitled to receive written notice specifying the nature of the default in reasonable detail. The Developer in default shall have thirty (30) days to cure the default. Upon delivering a notice of default to Developers or any Developer, City reserves the right to withhold final maps, grading permits, building permits, or occupancy permits, or initiate legal proceedings to compel specific performance of Developers’ or any Developer’s obligations.
8. Administration. The City Manager or his or her designee is responsible for the interpretation and administration of the provisions of this Agreement. Should a disagreement arise between the Parties with respect to the interpretation or administration of any provision of this Agreement, such decision may be appealed to the City Council within fifteen (15) days of the City Manager's decision.
9. Termination. This Agreement shall terminate at such time that the Ivy Rose Improvements have been fully constructed and accepted by City. Any terms that by their nature are intended to survive such termination shall continue in full force or effect.
10. Cooperation. The Parties agree to cooperate with one another in the completion and maintenance of the Ivy Rose Improvements, for the benefit of landowners in the Ivy Rose Area.
11. Binding on Successors. All terms, covenants, and conditions contained herein shall be binding on all parties having or acquiring any legal title or interest in the lands attributed to Developers described in Exhibit A or any part thereof. Developers shall provide a copy of this Agreement to any of their successors. The failure of Developers to provide a copy of this Agreement to any successor shall in no way affect the rights of City to require performance of the obligations described herein.
12. Notices. Any and all notices or other communications related to this Agreement shall be in writing and shall be deemed received when: (a) personally delivered to the Party to whom they are directed; or (b) the earlier of actual receipt or five (5) days following delivery by registered or certified U.S. mail (return receipt requested); or (c) delivered by email, based on the date shown on the sent email (provided that in the event of a notice of default, such email shall be promptly followed by delivery of such notice by another method as provided herein). All notices and communications related to this Agreement shall be directed to the primary representative of the Parties (including those who are also to receive a copy), as provided in the respective signature page for each Party. Either Party {CW136569.18}
may change its address information by giving ten (10) days advance written notice of such change to the other Party.
13. General Provisions.
(a) Recitals. The Recitals above are true and correct and are hereby incorporated into and made part of this Agreement. In the event of any inconsistency between the Recitals and the Sections of this Agreement, the Sections will prevail. (b) Exhibits. The Exhibits attached hereto are hereby incorporated and made part of this Agreement.
(c) Governing Law; Venue. The validity, interpretation, and performance of this Agreement shall be controlled by and construed pursuant to the laws of the State of California. Venue for all legal proceedings shall be in the Superior Court for Stanislaus County.
(d) Severability. If any provision of this Agreement shall be determined by a court to be invalid and unenforceable, the remaining provisions shall continue in full force and effect and shall be construed to give effect to the intent of this Agreement. (e) Waiver. Waiver of any condition, breach, or default under this Agreement does not constitute a continuing waiver, or the waiver of a subsequent breach. No Party shall be deemed to have made any such waiver unless it is in writing and signed by the Party so waiving.
(f) Supersedes Prior Agreement. It is the intention of the Parties hereto that this Agreement supersede any prior written or oral agreements, discussions, commitments, or representations between the Parties with respect to the subject matter of this Agreement. (g) Amendment of this Agreement. This Agreement may only be amended by the written mutual consent of the Parties.
(h) Mandatory and Permissive. “Shall” and “will” and “agrees” are mandatory. “May” or “can” are permissive.
(i) Calendar Days. All references in this Agreement to a certain number of days will be deemed to mean calendar days, unless stated otherwise. (j) Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed an original, but which together shall constitute one and the same instrument.
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(k) Further Acts. The Parties agree that they will cooperate in good faith to accomplish the objectives of this Agreement and to that end, to execute and deliver such other instruments or documents as may be necessary and convenient to fulfill the purposes of this Agreement.
(l) Authority. Each Party executing this Agreement certifies, in their individual or corporate capacity, that (i) they have legal or equitable title to the applicable parcels subject to this Agreement, and (ii) they are authorized to enter into this Agreement. (m) Joint Preparation. All Parties to this Agreement have negotiated it at length and have had the opportunity to consult with and be represented by their own competent counsel. The Parties acknowledge and agree that any rule of construction that a document is to be construed against the drafting Party shall not be applicable to this Agreement. (n) Attorney’s Fees and Costs. If any action at law or in equity is brought to enforce or interpret provisions of this Agreement, the prevailing Party shall be entitled to reasonable attorney's fees and costs, in addition to any other relief to which such Party may be entitled.
[Signatures on following pages]
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IN WITNESS WHEREOF, this Agreement has been entered into by and between City and Developers as of the dates set forth below (“Effective Date”).
CITY OF PATTERSON:
By:
Ken Irwin, City Manager
Date:
Primary Representative:
Ken Irwin
City Manager
1 Plaza
Patterson, California 95363
ATTN: City Manager
Email: [email protected]
with copy to:
White Brenner LLP
1414 K Street, Third Floor
Sacramento, California 95814
ATTN: Nubia I. Goldstein, Esq.
Email: [email protected]
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IN WITNESS WHEREOF, this Agreement has been entered into by and between City and Developers as of the dates set forth below (“Effective Date”).
ZACHARIAS RANCH:
EAGLE VALLEY INVESTMENTS, INC.,
a California Corporation
By:
Print:
Title:
Date:
LARRY BUEHNER TRUST
By:
Print:
Title:
Date:
Primary Representative:
Eagle Valley Investments, Inc.
1412 Rockhaven Drive
Modesto, CA 95356
ATTN: Joe Hollowell
Email: [email protected]
with copy to:
Eagle Valley Investments, Inc.
515 Keystone Blvd.
Patterson, CA 95363
ATTN: Larry Buehner
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IN WITNESS WHEREOF, this Agreement has been entered into by and between City and Developers as of the dates set forth below (“Effective Date”).
TPF DEVELOPMENT:
JOSEPHINE TRAINA FAMILY LIMITED PARTNERSHIP,
a California Limited Partnership
By:
Print:
Title:
Date:
JOHN POTTER REVOCABLE TRUST
By:
Print:
Title:
Date:
FRIEDRICH FAMILY LIMITED PARTNERSHIP,
a California Limited Partnership
By:
Print:
Title:
Date:
Primary Representative:
Willie Traina
P.O. Box 157
Patterson, CA 95363
Email: [email protected]
Friedrich Family Limited Partnership, LP
2443 Lemon Avenue
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Patterson, California 95363
ATTN: Paul Friedrich
John Potter Revocable Trust
2909 Coffee Road
Modesto, CA 95355
Email: [email protected]
with copy to:
David Romano
Newman-Romano, LLC
1034 12th Street
Modesto, CA 95354
Email: [email protected]
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IN WITNESS WHEREOF, this Agreement has been entered into by and between City and Developers as of the dates set forth below (“Effective Date”).
LAKESIDE HILLS:
LAKESIDE HILLS, LLC,
a California limited liability company
By:
Print:
Title:
Date:
Primary Representative:
Camilla Perino
P.O. Box 487
Patterson, CA 95363
Email: [email protected]
with copy to:
Kingsmill Properties
5055 Business Center Dr.
Fairfield, CA 94534
ATTN: Keith Fichtner
Email: [email protected]
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IN WITNESS WHEREOF, this Agreement has been entered into by and between City and Developers as of the dates set forth below (“Effective Date”).
KEYSTONE RANCH:
KEYSTONE RANCH, LLC,
a North Carolina limited liability company
By:
Print:
Title:
Date:
Primary Representative:
J. Patrick Gavaghan
Keystone Corporation
5410 Trinity Road, Suite 215
Raleigh, NC 27607
Email: [email protected]
with copy to:
Keith J. Schneider
Keystone Corporation
1700 Keystone Pacific Parkway, C-3
Patterson, CA 95363
Email: [email protected]
George A. Petrulakis
Petrulakis Law & Advocacy
1130 12th Street, Suite B
Modesto, CA 95354
Email: [email protected]
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EXHIBIT A
Master Plan Development Areas
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EXHIBIT B
Ivy Rose Area