Loading...
HomeMy WebLinkAbout32782SUBDIVIDER AGREEMENT This agreement is dated ________________ and is between JPJ Incorporated, a California corporation doing business at 7030 North Fruit Avenue, Suite 101, Fresno, California 93711 (“Subdivider”), and the County of Fresno, a political subdivision of the State of California (“County”). Recitals On December 14, 2000, the Fresno County Planning Commission approved Tentative Tract Map No. 4968 (“Tract 4968”), subject to certain conditions. On October 17, 2017, the Fresno County Board of Supervisors (“Board”) accepted the landowner’s consent form requesting the formation of zone D of County Service Area No. 34 (“CSA 34D”) to provide water and sewer services, maintenance of roads and drainage, open space monitoring and maintenance, landscape maintenance, street lighting, and lake pump operation maintenance and water contract administration benefitting the 106 residential parcels to be created by Tract 4968. Condition of approval 14.d. for Tract 4968 requires that the developer shall enter into an agreement in which the developer is responsible for all costs associated with the operation, maintenance, and administration of CSA 34D until such time as these costs can be met by the CSA through assessments or fees. The purpose of this agreement is to satisfy the requirement in condition 14.d. and to establish the duties and responsibilities of the Subdivider with respect to that requirement. The parties therefore agree as follows: Article 1 Definitions 1.1 “Consumer” means any person, other than Subdivider, who is obligated under applicable ordinances or resolutions of the Board to pay taxes, benefit assessments, standby charges, or user fees for any services or facilities provided to or for the benefit of a developed residential parcel in CSA 34D, or who resides on any developed residential parcel in CSA 34D. 1.2 “Fiscal Year” means a period beginning on July 1 and concluding the next June 30. 1.3 “Offsetting Revenue” means revenue from taxes, benefit assessments, user fees, and charges collected by the County from Consumers, or from Subdivider as provided in Article 3 of this agreement. 1.4 The words “services” and “facilities” have the same meanings in this agreement as they have in section 25213 of the Government Code, except that improvements that have not been formally accepted by the County are not “facilities” for purposes of this agreement. December 5, 2017 Agreement No. 17-62217-0672 2 1.5 “Total Zone D Cost” means (a) the total cost, including all of the components described in exhibit A to this agreement, to provide, operate, maintain, repair, and replace all CSA 34D services and facilities; plus (b) an amount up to 10 percent of that total cost, excluding costs for road and bridge maintenance, as needed to bring the general operating reserves to a minimum level in accordance with the Board of Supervisors policy adopted November 7, 2006, and confirmed on November 10, 2009. 1.6 “Day” means calendar day unless otherwise specified. 1.7 “Sales Complex” means an area within CSA 34D that consists of up to three model homes, an office trailer, and up to four off-market lots. Article 2 Subdivider’s Base Payment Obligation 2.1 Base Obligation. Subdivider shall pay to County the amount of the Total Zone D Cost, less Offsetting Revenue, as provided in this agreement. 2.2 Period of Obligation. The period of Subdivider’s obligation under section 2.1 of this agreement includes the Total Zone D Cost actually incurred beginning with the formation of CSA 34D, through the end of the first Fiscal Year in which the total of (a) the number of residential parcels in CSA 34D occupied by Consumers, and (b) the number of model homes, office trailers, and off-market lots in the Sales Complex, is equal to 106 (the “Final Fiscal Year”). 2.3 Initial Period Estimated Payment. Within 30 days after the formation of CSA 34D, County shall determine the estimated Total Zone D Cost less estimated Offsetting Revenues for that portion of the Fiscal Year remaining after the formation (the “Initial Period”), and shall give Subdivider a written statement of that amount, together with its calculation. Within 30 days after receiving that statement, Subdivider shall pay to County the total amount shown on the statement. 2.4 Annual Estimated Payment. Within 60 days after the beginning of each Fiscal Year covered by section 2.2 of this agreement, beginning with the first full Fiscal Year after formation of CSA 34D, County shall determine the estimated Total Zone D Cost less estimated Offsetting Revenues for the coming Fiscal Year, reduced by any amount determined under section 2.5(A) of this agreement, increased by any amount under section 2.5(B) of this agreement, and including any other unpaid amount of Subdivider’s obligation under section 2.1 of this agreement, and shall give Subdivider a written statement of that amount, together with its calculation. Within 30 days after receiving that statement, Subdivider shall pay to County the total amount shown on the statement. 2.5 Annual True-Up. Within 60 days after the end of the Initial Period and each Fiscal Year covered by section 2.2 of this agreement, except for the Final Fiscal Year, County shall invoice Subdivider for the actual Total Zone D Cost less actual Offsetting Revenue for the prior Fiscal Year. 3 (A)If the amount of the invoice is less than the amount of Subdivider’s estimated payment for the Fiscal Year invoiced, then the difference shall be credited to Subdivider’s obligation for the next Fiscal Year. (B)If the amount of the invoice is more than the amount of Subdivider’s estimated payment for the Fiscal Year invoiced, then the difference shall be added to the written statement for the next Fiscal Year under section 2.4 of this agreement. 2.6 Final True-Up. Within 60 days after the end of the Final Fiscal Year, County shall submit to Subdivider a final invoice for the actual Total Zone D Cost less actual Offsetting Revenue for the Prior Fiscal year. (A)If the amount of the invoice is less than the amount of Subdivider’s estimated payment for the Final Fiscal Year, then the difference shall be refunded to Subdivider within 45 days after the invoice is sent. (B)If the amount of the invoice is more than the amount of Subdivider’s estimated payment for the Final Fiscal Year, then the Subdivider shall pay the difference within 30 days after receiving the invoice. 2.7 Statement and Invoice Contents. All statements and invoices under this Article 2 shall include line items showing costs for each of the components described in exhibit A. Article 3 Subdivider’s Payment of Offsetting Revenues. 3.1 Taxes, Assessments, Charges, and Fees. Notwithstanding section 2.1 of this agreement, if Subdivider becomes obligated under applicable ordinances or resolutions of the Board to pay CSA 34D taxes, benefit assessments, standby charges, or user fees for any services or facilities provided to or for the benefit of any parcels, improvements, or facilities belonging to Subdivider (such as developed and undeveloped residential parcels, model homes, and office trailers), then Subdivider shall timely pay such taxes, benefit assessments, standby charges, or user fees as billed. Subdivider shall pay all applicable installation and connection charges if Subdivider wishes to establish water and sewer service connections to any parcels, improvements, or facilities belonging to Subdivider. 3.2 Inclusion in Offsetting Revenues. Subdivider’s payment of CSA 34D taxes, benefit assessments, standby charges, user fees, and installation and connection charges does not relieve Subdivider of its obligation under section 2.1 of this agreement, but all such payments shall be included in Offsetting Revenues for the purpose of determining the amount of that obligation. 3.3 Ongoing Payments. The office trailer in the Sales Complex may receive water and wastewater service through CSA 34D. Upon establishment of such services for the office trailer, Subdivider shall pay, under this agreement, all user fees that would apply to a Consumer receiving those services. Beginning July 1 following the end of the Final Fiscal Year, Subdivider shall pay monthly to the County an amount equal to a Consumer’s base monthly fees for water 4 and wastewater services for each of the off-market lots in the Sales Complex. Such payments shall continue for each lot until that lot is developed and ownership is transferred to a Consumer. 3.4 Consequence for Failure. If Subdivider does not timely pay CSA 34D taxes, benefit assessments, standby charges, or user fees that it becomes obligated under applicable ordinance or resolutions of the Board to pay, then, in addition to any other penalties for nonpayment or late payment that may apply under Fresno County ordinance, Section 14.10, County shall suspend issuance of building permits and final occupancy notices in CSA 34D until the required payment is made. Article 4 County’s Responsibilities 4.1 Collection of Revenue. County shall collect all CSA 34D taxes, benefit assessments, standby charges, user fees, and installation and connection charges as adopted by the Board. 4.2 Allocation of Revenue. All payments received by County from Subdivider under this agreement shall be credited to the funds of CSA 34D and, except for payments under section 3.3 of this agreement, shall be allocated proportionally as required by the Consolidated Engineer’s Report prepared by Edward J. Wilson and dated August 28, 2015 (“CER”) or any other applicable fee study or assessment engineer’s report. 4.3 Recordkeeping. County shall maintain records of its determinations of estimated and actual Total Zone D Costs and Offsetting Revenues, and of all payments by Subdivider under this agreement. Such records shall be sufficient to support the County’s statements, invoices, and other determinations under this agreement. 4.4 No Limitation on Imposing Charges. Nothing in this agreement limits the power of the County to impose taxes, benefit assessments, standby charges, and user fees, as appropriate, for CSA 34D services and facilities. Article 5 Notices 5.1 Contact Information. The persons and their addresses having authority to give and receive notices provided for or permitted under this agreement include the following: For the County: County Service Area 34D Resources Division, Special Districts Department of Public Works and Planning COUNTY OF FRESNO 2220 Tulare Street, 6th Floor Fresno, CA 93721 5 Telephone: (559) 262-4259 Fax: (559) 262-4286 For the Subdivider: JPJ Incorporated 7030 North Fruit Avenue, Suite 101 Fresno, California 93711 Telephone: (559) 435-9700 Fax: (559) 435-9707 5.2 Method of Delivery. All notices between County and Subdivider provided for or permitted under this agreement must be in writing and delivered either by personal service, by first-class United States mail, by an overnight commercial courier service, or by telephonic facsimile transmission. (A)A notice delivered by personal service is effective upon service to the recipient. (B)A notice delivered by first-class United States mail is effective three County business days after deposit in the United States mail, postage prepaid, addressed to the recipient (C)A notice delivered by an overnight commercial courier service is effective on County business day after deposit with the overnight commercial courier service, delivery fees prepaid, with delivery instructions given for next day delivery, addressed to the recipient. (D)A notice delivered by telephonic facsimile is effective when transmission to the recipient is completed (but, if such transmission is completed outside of County business hours, then such delivery shall be deemed to be effective at the next beginning of a County business day), provided that the sender maintains a machine record of the completed transmission. 5.3 Claims Presentation. For all claims arising from or related to this agreement, nothing in this agreement establishes, waives, or modifies any claims presentation requirements or procedures provided by law, including but not limited to the Government Claims Act (Division 3.6 of Title 1 of the Government Code, beginning with section 810). Article 6 General Provisions 6.1 Modification. This agreement may not be modified, and no waiver is effective, except by another written agreement that is signed by both parties. 6.2 Non-Assignment. Neither party may assign its rights or delegate its obligations under this agreement without the prior written consent of the other party. 6 6.3 Governing Law. The laws of the State of California govern all matters arising from or related to this agreement. 6.4 Jurisdiction and Venue. This agreement is signed and performed in Fresno County, California. The Subdivider consents to California jurisdiction for actions arising from or related to this agreement, and, subject to the Government Claims Act, all such actions must be brought and maintained in the Fresno County Superior Court. 6.5 Construction. The final form of this agreement is the result of the parties’ combined efforts. If anything in this agreement is found by a court of competent jurisdiction to be ambiguous, that ambiguity is to be resolved by construing the terms of this agreement according to their generally accepted meaning, and not by construing the terms of this agreement for or against either party. 6.6 Headings. The headings and section titles in this agreement are for convenience only and are not part of this agreement. 6.7 Severability. If anything in this agreement is found by a court of competent jurisdiction to be unlawful or otherwise unenforceable, the balance of this agreement remains in effect. 6.8 No Waiver. Payment, change, waiver, or discharge of any liability or obligation of the Subdivider under this agreement on any one or more occasions is not a waiver of performance of any continuing or other obligation and does not prohibit enforcement by the County of any obligation on any other occasion. 6.9 Entire Agreement. This agreement is the entire agreement between the Subdivider and the County with respect to the subject matter of this agreement, and it supersedes all previous negotiations, proposals, commitments, writings, advertisements, publications, and understandings of any nature unless those things are expressly included in this agreement. 6.10 Third-Party Beneficiaries. This agreement does not and is not intended to create any rights or obligations for any person or entity except for the parties. 6.11 Authorized Signatures. Subdivider represents and warrants to County that: (A)Subdivider is duly authorized and empowered to sign and perform its obligations under this agreement. (B)The individual signing this agreement on behalf of Subdivider is duly authorized to do so and his or her signature on this agreement will legally bind the Subdivider to the terms of this agreement. 6.12 Counterparts. This agreement may be signed in counterparts, each of which is an original, and all of which together constitute this agreement. [SIGNATURE PAGE FOLLOWS] IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first hereinabove written. J:O l'fr.( A . B(!) "'A-f.) ~ II L cou:r.v~TRESNO BRIAN PACHECO, Chairman of the Board of Supervisors of the County of Fresno Print Name & Title . fll-~ / c.>,,; ,v r JOJO AJ, Fl'k,°f-8uo.--JI. 101 Mailing Address FOR ACCOUNTING USE ONLY Department of Public Works and Planning CSA No. 34 Millerton New Town Fund: 0830 Subclass: 16000 Org. No. 9174 Account No.: 5068 7 ATTEST: Bernice E. Seidel, Clerk to the Board of Supervisors, County of Fresno, State of California By: th, ~a·,. Deputy Exhibit A Total Zone D Cost Components A-1 County shall determine the Total Zone D Cost by including all of the following components: 1. Water. The cost to provide water services and facilities for CSA 34D includes a pro rata share of the cost for lake pump operation and maintenance and water contract administration, a pro rata share of the surface water treatment plant costs and all of the costs for the local water distribution system, as follows: a. Lake Pump Operation and Maintenance and Water Contract Administration. The cost of lake pump operation and maintenance, including a capital replacement reserve and contingency, and water contract administration for CSA 34D is a pro rata share based on the annual volume, as measured in acre-feet, of surface water available to each of the four areas of service under the Surface Water Supply Contracts. b. Surface Water Treatment Plant. The cost of producing potable water for distribution within CSA 34D is a pro rata share of the total cost of operating and maintaining the surface water treatment plant, including a capital replacement reserve and contingency, based on the volume of finished water delivered to CSA 34D as a percentage of the total volume of finished water produced by the plant. c. Local Water Distribution System. The cost to operate and maintain, including a capital replacement reserve and contingency, the CSA 34D’s local water distribution system. 2. Sewer. The cost to provide sewer services and facilities for CSA 34D includes a pro rata share of the wastewater treatment plant costs and all of the costs for the local wastewater collection system, as follows: a. Wastewater Treatment Plant. The cost of providing wastewater treatment for CSA 34D is a pro rata share of the total cost of operating and maintaining the wastewater treatment plant, including a capital replacement reserve and contingency, based on number of 12-month equivalent connections (total number of connections each month divided by 12) in CSA 34D as a percentage of the total number of connections to the plant. b. Local Wastewater Collection System. The cost to operate and maintain, including a capital replacement reserve and contingency, the CSA 34D wastewater collection system, which includes all costs associated with the proposed new lift station required for CSA 34D. 3. Road and Bridge Maintenance. The cost to provide road and bridge maintenance services, including a capital replacement reserve and contingency in CSA 34D. 4. Storm Drain Basin and Collection System. The cost to provide storm drain services, including an operating and capital replacement reserve, and contingency, in CSA 34D. 2 5. Open Space Monitoring and Maintenance. The cost to provide open space monitoring and maintenance services in CSA 34D. 6. Landscape Maintenance. The cost to provide landscape maintenance services in CSA 34D. 7. Street Lighting. The cost to pay PG&E fees for operation and maintenance of PG&E owned street lights in CSA 34D.