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HomeMy WebLinkAboutAgreement A-19-151 Police Protection Services.pdf1 2 3 4 5 6 7 AGREEMENT THIS AGREEMENT is made and entered into this ___ day of _____ , 201 9 by and between the COUNTY OF FRESNO, a political subdivision of the State of California ("COUNTY") and 38 Development, Inc., a California corporation ("38 DEVELOPMENT"), Ashlan & Hayes Investments, LLC, a California limited liability company ("ASHLAN & HAYES"}, Assemi Group, Inc., a California corporation ("ASSEMI"), Granter Real Estate Investments, LLC, a California limited liability company ("GRANTOR"), Locans Investments, LLC, a California limited liability company ("LOCANS"), Millerton 8 Investments, LLC, a California limited liability company ("MILLERTON"), and WC Millerton Developers, 9 Inc., a California corporation ("WC MILLERTON"). "DEVELOPER" means 3B DEVELOPMENT, 10 ASHLAN & HAYES, ASSEMI, GRANTOR, LOCANS, MILLERTON, and WC MILLERTON collectively. 11 WITNESS ETH 12 WHEREAS, Policy PF-G.2 of the 2000 Fresno County General Plan Update ("Policy") regarding 13 the provision of COUNTY law enforcement services states that COUNTY shall strive to maintain a 14 staffing ratio of two (2) sworn officers serving unincorporated residents per 1,000 residents served, and 15 that this count of officers includes all ranks of deputy sheriff personnel and excludes all support 16 positions and all sworn officers serving countywide population interests such as bailiffs, and sworn 17 officers serving contract cities and grant specific popu lations (collectively, "Law Enforcement Services"); 18 and 19 WHEREAS, the DEVELOPERS desire to record maps in the Office of the Fresno County 20 Recorder, each providing for certain planned residential developments, as follows: 38 DEVELOPMENT 21 desires to record its Tract Map No. 6189; ASHLAN & HAYES intends to record a tract map or maps, 22 not yet on file, for the parcels identified by Assessor's Parcel Number ("APN") 300-542-16S, 300-542- 23 17S, 300-542-18S, 300-542-39, 300-542-40, 300-542-41, 300-542-48; ASSEMI desires to record its 24 Tract Map No. 6226; GRANTOR desires to record its Tract Map No. 4976, and also desires to record a 25 tract map or maps for the parcels identified by APN 300-340-13S and 300-542-03; LOCANS desires to 26 record a tract map or maps, not yet on file, for the parcels identified by APN 300-350-28S, 300-542- 27 15S, 300-542-32, 300-542-33, 300-542-52; MILLERTON desires to record its Tract Map No. 5430, and 28 also desires to record a tract map or maps for the parcels identified by APN 300-340-60S and 300-542- 1 26th March Agreement No. 19-15119-0175 1 51; and WC MILLERTON desires to record its Tract Map No. 4934;; and 2 WHEREAS, all of the full legal parcels, which are identified by Assessor's parcel numbers, and 3 which fully include such territory listed above, are shown in Exhibit A ("Project Territory"), which is 4 attached hereto and incorporated herein; and 5 WHEREAS, the Project Territory is located within the unincorporated area of COUNTY; and 6 WHEREAS. COUNTY has determined that funding from COUNTY's own sources will likely be 7 insufficient to provide the level of Law Enforcement Services specified by Policy in the Project Territory; 8 and 9 WHEREAS, as a condition of any of 3B DEVELOPMENT, ASHLAN & HAYES, ASSEMI, 10 GRANTOR, LOCANS, MILLERTON, and WC MILLERTON recording a final subdivision map in the 11 Office of the COUNTY Recorder, COUNTY has required that there shall be a Community Facilities 12 District ("CFO") under the Mello-Roos Community Facilities Act of 1982 (Gov. Code,§§ 53311 et seq.; 13 "ACT") that will utilize landowner voter approved special taxes stated herein (collectively, "Special 14 Taxes") and levied annually thereafter upon all nonexempt real property in such territory in order to 15 provide for the ongoing financing for the continual provision of Law Enforcement Services in that area; 16 and 17 WHEREAS, to the extent that any area within the Project Territory is not a full legal parcel, 18 identified by Assessor's Parcel Number (APN), the parties desire that this Agreement shall apply to the 19 remainder of the Project Territory in order to meet the requirements of ACT; and 20 WHEREAS, the COUNTY has established CFO No. 2006-01 ("District")1 to provide financing for 21 the continual provision of Law Enforcement Services in the unincorporated areas of Fresno County 22 where such District has been established, and where territory has been annexed and incorporated to 23 such District; and 24 27 28 1 Notwithstanding anything stated to the contrary in this Agreement, DEVELOPER acknowle dges and agrees that COUNTY reserves the right, in its sole discretion, to establish a new, separate CFO for Law Enforcement Services for the Project Territory, otherwise pursuant to this Agreement. In such instance, all references herein to the District shall mean such CFO. 1 WHEREAS, DEVELOPER is agreeable to the COUNTY's use of the subject District to provide 2 financing for the continual provision of Law Enforcement Services for the Project Territory by the 3 COUNTY annexing all of the Project Territory to the District and incorporating the territory therein, 4 subject to the terms and conditions of this Agreement; and 5 WHEREAS, this Agreement is being entered into by and between the parties to authorize the 6 COUNTY to annex the Project Territory to the District for the imposition of liens upon all nonexempt real 7 property located in the Project Territory in order to secure the full and timely payment of the Special 8 Taxes under ACT (collectively, the "Lien"), to impose the Lien, and to annually levy the Special Taxes 9 upon all nonexempt real property located in the Project Territory (collectively, the "Levy"); and 10 WHEREAS, this Agreement also is being entered into to allow DEVELOPER to place sufficient 11 funds in a trust account with COUNTY to cover the fees, costs and expenses incurred by COUNTY in 12 implementing the procedures to finance the Law Enforcement Services, including, but not limited to, 13 conducting all such public hearings and proceedings in connection with annexing and incorporating the 14 Project Territory to the District, developing the method of apportionment of the Special Taxes, imposing 15 the Special Taxes, implementing the Special Taxes (including, but not limited to, recording any notice of 16 Lien and imposing the initial Levy), processing, reviewing, and preparing documents and comments, 17 and performing other work and activities in connection with all such matters (collectively, the "Special 18 Tax Activities"); and 19 WHEREAS, DEVELOPER will deposit funds with the COUNTY as described in this Agreement 20 so that COUNTY can proceed with the Special Tax Activities, as provided herein. 21 NOW, THEREFORE, in consideration of the mutual covenants and conditions hereinafter 22 contained and agreed to, and for other good and valuable consideration, the adequacy and receipt of 23 which are hereby acknowledged, the parties to this Agreement agree as follows: 24 1.Except as otherwise provided In this Agreement, 3B DEVELOPMENT, ASHLAN & 25 HAYE S, ASSEMI, GRANTOR, LOCANS, MILLERTON, and WC MILLERTON are jointly and 26 severally liable for each obligation of DEVELOPER under this Agreement. 27 2.DEVELOPER shall fully cooperate with COUNTY in timely providing adequate and 28 materlally accurate information to COUNTY and COUNTY's special tax consultant ("COUNTY's 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Consultant"), if any, that COUNTY and COUNTY's Consultant shall deem necessary for the COUNTY's annexation of the Project Territory to the District and imposition of the Lien and initial Levy, including by way of example but without limitation the following, which shall be to the reasonable satisfaction of COUNTY and COUNTY's Consultant: A.An annexation map prepared and provided by DEVELOPER in full compliance with the minimum requirements of Exhibit B, Annexation Map Preparation Requirements (which is attached hereto and incorporated herein); such annexation map shall fully and accurate ly set forth the exterior boundaries of the Project Territory, and all other information in the form and content required by law for annexation maps; the Project Territory shall contain the entirety of any and all parcels therein subject to taxation by the proposed annexation (all parcels in the Project Territory shall be full legal parcels identified by APNs); and B.APNs of all parcels include d in the Project Territory, to be included in the annexation by the District, and subject to any and all conditions of this agreement; and C.Information concerning ownership of the land by each of 38 DEVELOPMENT, ASHLAN & HAYES, ASSEMI, GRANTOR, LOCANS, MILLERTON, and WC MILLERTON within the Project Territory, and number of registered voters, if any, within the Project Territory; and D.If requested by COUNTY, current and updating title report for parcels to be included in the Project Territory (including documents which are exceptions to title in such report(s)); and 3.COUNTY or COUNTY's Consultant may request DEVELOPER to update any or all of the foregoing information, instruments, documents, reports or records during COUNTY's pro ceedings to annex the Project Territory to the District, and to impose the Lien and the Levy, so that such information shall be current at the time COUNTY takes such action that is based on such information, instruments, documents, reports or records. 4.Each of 3B DEVELOPMENT, ASHLAN & HAYES, ASSEMI, GRANTOR, LOCANS, MILLERTON, and WC MILLERTON represents, covenants, warrants and agrees that it is the sole owner of the entire fee interest of all real property, including all rights, title and interest therein, and all land and improvements thereon and therein described by its respective tract map, parcels, or both, 4 1 identified above (collectively, "Developer's Real Property"), located in the Project Territory, and 2 DEVELOPER represents, covenants, warrants and agrees that there always have been, alw ays are, 3 and always will be less than twelve (12) registered voters residing in the Project Territory from ninety 4 (90) days before the parties' execution of this Agreement, and continuing thereafter without interruption 5 through and until the conclusion of the proceedings for the annexation of the Project Territory to the 6 District, and the imposition of the Lien upon all nonexempt real property located in the Project Territory, 7 in order to permit COUNTY to proceed with and successfully complete the landowner voter election 8 procedures for the proposed annexation, as authorized under Government Code sections 53339.7 and 9 53326, and the recordation of the amendment to the notice of Lien under Government Code section 10 53339.8, and Streets and Highway Code section 3117.5. DEVELOPER acknowledges and agrees that 11 COUNTY will be proceeding with the annexation of the Project Territory to the District under such 12 landowner voter election procedures, based upon such representations, covenants, warranties and 13 agreements of DEVELOPER. 14 5.Pursuant to Government Code section 53339.2 and, to the extent that it applies, 15 Government Code section 5331 B(c), DEVELOPER hereby petitions and requests COUNTY 16 immediately commence and pursue to completion, and institute all proceedings pursuant to the ACT, to 17 annex the Project Territory to the District, to establish and/or confirm the Initial Appropriations Limit 18 (defined below), to create and impose the Lien upon all of the nonexempt real property located in the 19 Project Territory according to the maximum rates of the annual Special Taxes (including inflationary 20 adjustments thereto) for the purpose of funding provision of Law Enforcement Services, as stated in the 21 Special Tax Rate and Method of Apportionment in Exhibit C (which is attached hereto and incorporated 22 herein), and annually thereafter to levy the Special Taxes upon all nonexempt real property located 23 within the Project Territory, all for the purpose of the provision of the Law Enforcement Services in the 24 Project Territory in accordance with COUNTY Policy, provided: 25 A.All proceedings to annex the Project Territory to the District and to establish 26 and/or confirm the Initial Appropriations Limit, and to record the amendment to the notice of Lien (but 27 excluding the imposition of the Levy) shall be completed no later than June 18, 2019; and 28 B.At the time that the annexation is completed, the then-current maximum 5 1 rates of the annual Special Taxes (including inflationary adjustments thereto), for the purpose of 2 funding provision of Law Enforcement Services, shall be as stated in the Special Tax Rate and Method 3 of Apportionment in Exhibit C hereto. 4 C.That said completion date shall not be construed as limiting the COUNTY's 5 Board of Supervisor's ("Board") discretion to continue associated Board actions as the Board, in its sole 6 and absolute discretion, may deem appropriate. 7 D.That, in the event the Board continues any associated actions, or if 8 circumstances beyond the control of COUNTY arise that preclude completion by the date specified 9 hereinabove, then the expiration date of this Agreement shall hereby be deemed extended to the extent 10 necessitated by such Board actions or circumstances beyond the control of COUNTY. 11 6.DEVELOPER represents and warrants that the Project Territory constitutes one hundred 12 percent (100%) of the area of land which DEVELOPER proposes to be annexed to and included within 13 the District, that not all of such area is exempt from the Special Tax, and that all parcels in the Project 14 Territory at the time of annexation, are full legal parcels identified by APNs. 15 7.DEVELOPER hereby requests that the COUNTY file this petition and request with the 16 COUNTY's Clerk to the Board of Supervisors. DEVELOPER further petitions and requests that the 17 COUNTY Board of Supervisors Immediately proceed with any and all actions or proceedings necessary 18 to accomplish matters in connection therewith. 19 8.DEVELOPER seeks to facilitate said petition and request by, to the greatest extent 20 allowed by law, each of 3B DEVELOPMENT, ASHLAN & HAYES, ASSEMI, GRANTOR, LOCANS, 21 MILLERTON, and WC MILLERTON hereby expressly waiving any and all notices, minimum noticing 22 periods, procedures and substantive requirements otherwise required under or provided by: 23 A.ACT, including, by way of example and without limitation, Article 3.5 24 (commencing with section 53339) of ACT regarding the proceedings to annex the Project Territory to 25 the District; and 26 8.Government Code Sections 54950 through 54962, inclusive, regarding notices of 27 and holding of public meetings of the COUNTY's Board; and 28 C.Government Code Section 53739, regarding the setting of the rate for taxes, 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 including an inflationary adjustment; and D.Article 3.5 of Chapter 1 of Part 1 of Division 1 of Title 5 of the Government Code (Sections 50075 through and 50077, inclusive), regarding special taxes; and E.The applicable provisions of Article 3. 7 of Chapter 4 of Part 1 of Division 2 of Title 5 of the Government Code (Sections 53720 through and 53730, inclusive; as applicable) regarding special taxes; and F.Any other provisions of the Constitution of the United States, the Consti tution of the State of California, and any and all other laws and regulations enacted thereunder by governing legal authorities or political subdivisions thereof, whether in law or equity, with regard to and including, but not limited to: i.The adoption of any ordinances or resolutions; or ii.Filing of any reports (including, but not limited to engineer's reports), plans or studies concerning Law Enforcement Services and their related (or estimated) costs (as under Government Code Section 53321.5, but not limited thereto); or iii.Filing of any reports, plans, or studies concerning a plan for sharing services to be provided in common between the current District and the annexed Project Territory (as under Government Code Section 53339.3, but not limited thereto); or iv.The giving of any notices, holding of any meetings or hearings, right of 19 majority protest and objections (including objections concerning the regularity or sufficiency of the 20 proceedings for the establishment of the District and/or the annexation of the Project Territory to the 21 District; the recordation of the amendment to the notice of Lien; and the imposition of the Lien or Levy 22 of the Special Tax upon nonexempt properties located in the Project Territory; but not limited thereto); 23 or 24 v.The right to vote, election requirements, the manner and timing of 25 distributing ballots and elections materials to voters (including instructions for proposed voting 26 procedures), the collecting and canvassing of voted ballots, time limits for election; and 27 G.Expressly supports COUNTY's annexation of the Project Territory to the District, 28 he Levy of the Special Tax and the Initial Appropriations Limit (defined below), the recordation of the 7 1 mendment to the notice of the Lien against the properties shown in Exhibit A, and the imposition of the 2 ien and Levy on all nonexempt properties located in the Project Territory, all for the continual provision 3 f Law Enforcement Services in the Project Territory, without completion of or compliance with any such 4 otic es, minimu m noticing periods, time limits, procedures or substantive requirements. 5 9.Without limiting the generality of any of the foregoing, and to the greatest extent allowed 6 by law, each of 38 DEVELOPMEN T, ASHLAN & HAYES, ASSEMI, GRANTOR, LOCANS, 7 MILLERTON, and WC MILLERTON hereby expressly waives: 8 A.Any and all time limits and requirements in connection with the conduct of the 9 election of the Levy referred to in Government Code Sections 53339.7 and 53326(a); and 1 0 8.The impartial analysis and arguments and rebuttals, if any, in connection with the 11 election by the qualified landowner voters for the vote of the Levy referred to Government Code Section 12 53327; and 13 14 15 16 17 18 19 20 21 22 23 24 C.Any and all objections for other procedures and substantive requirements in connection with the regularity and sufficiency of an election and time limits for the calling for an election of the Levy in the proposed Project Territory, and for performance by any COUNTY election official for the vote of such Levy; including, but not limited to, the manner and timing of distributing ballots and elections materials (including instructions for proposed voting procedures) to voters and collecting and canvassing voted ballots; and D.Any and all rights under Articles XIIIA, section 4, Xl llC and XIIID of the California Constitution regarding special taxes and the right, under Article XIIIC of the California Constitution and any other provision of the California Constitution and of any laws, to the initiative power to reduce or repeal local taxes: and E.Any and all rights under Article 3 (commencing with Section 53330) of ACT to reduce or repeal the Special Tax, to terminate the Levy, and to eliminate or reduce Law Enforcement 25 Services; and 26 F.Any and all objections to the COUNTY's establishment and/or confirmation of the 27 initial appropriation limit for the District, including the Project Territory, and/or of the then-current 28 appropriations limit for the District, including the Project Territory, which may be subject to future 8 1 adjustment as provided by the California Constitution or other law (collectively, the "Initial 2 Appropriations Limit"), pursuant to Article XIIIB of the California Constitution, and Section 53325.7 of 3 the Government Code. 4 1 O. Notwithstanding any provisions to the contrary in this Agreement, COUNTY agrees that 5 all proceedings to annex the Project Territory to the District, to establish and confirm the Initial 6 Appropriations Limit, and to record the amendment to the notice of the Lien (but excluding the 7 imposition of the Levy) shall be completed no later than June 18, 2019, and at the time that the 8 annexation of the Project Territory to the District is completed, the then-current maximum rates of the 9 annual Special Tax (including inflationary adjustments thereto), for the purpose of funding provision of 10 Law Enforcement Services, shall be as stated in Exhibit C, which is attached hereto and incorporated 11 herein. Provided, however, that this shall not be construed as limiting the COUNTY's Board discretion 12 to continue associated Board actions as the Board, in its sole and absolute discretion, may deem 13 appropriate. In the event that the Board continues any associated actions, or other circumstances 14 beyond control of COUNTY arise that preclude completion by June 18, 2019, then the expiration date 15 of this Agreement shall hereby be deemed extended to the extent necessitated by such Board actions 16 or circumstances beyond the control of the COUNTY. Nothing contained in this Agreement prohibits or 17 limits, nor shall it be deemed to prohibit or limit, COUNTY from conducting subsequent proceedings for 18 the increase of such maximum rates of the Special Tax (including inflationary adjustments thereto) or 19 the District's (including the Project Territory) appropriations limit, and the level of Law Enforcement 20 Services funded by the Special Tax, after the annexation of the Project Territory to the District, upon the 21 approval of the requisite number of qualified voters in the annexation pursuant to ACT. 22 11.On the request of COUNTY, each of 38 DEVELOPMENT, ASHLAN & HAYES, ASSEMI, 23 GRANTOR, LOCANS, MILLERTON, and WC MILLERTON shall promptly execute and deliver to 24 COUNTY any and all agreements, instruments, documents, and information that COUNTY deems 25 necessary to accomplish the annexation of the Project Territory to the District, the special election for 26 the Levy and Initial Appropriations Limit, the recordation of the amendment to the notice of the Lien, the 27 imposition of the Lien and the initial Levy in the Project Territory, and the establishment and/or 28 confirmation of the Initial Appropriations Limit, and to evidence DEVELOPER's petition, request, 9 1 consent and waiver in this Agreement, including by way of example and without limitation, petition, 2 waiver and consent forms, ballots regarding the Levy and Initial Appropriations Limit, receipts for 3 notices, and authorization by each of 3B DEVELOPMENT, ASHLAN & HAYES, ASSEMI, GRANTOR, 4 LOCANS, MILLERTON, and WC MILLERTON of its respective representatives to take any actions, to 5 give any approvals, to execute any agreements, instruments and documents, to authenticate any 6 information provided by it, and to vote for the Levy and Initial Appropriations Limit in connection with 7 this Agreement. 8 12.In consideration for COUNTY's Board conducting proceedings for the annexation of the 9 Project Territory to the District, the imposition of the Lien, the establishment and/or confirmation of the 1 O Initial Appropriations Limit, and conducting proceedings for the Levy as requested herein by 11 DEVELOPER, each of 38 DEVELOPMENT, ASHLAN & HAYES, ASSEMI, GRANTOR, LOCANS, 12 MILLERTON, and WC MILLERTON agrees to remain the sole owner of its real property in the Project 13 Territory and further agrees not to close escrow or to transfer title to, or any right or interest in, 14 Developer's Real Property, or any lot or other portion thereof (collectively, or individually, the "Sale or 15 Transfer"), to any other person or entity until the earliest of the following: 16 A.Completion of COUNTY's proceedings annexing the Project Territory to the 17 District and establishing and/or confirming the Initial Appropriations Limit, and imposing the Lien on all 18 nonexempt property located in the Project Territory, including by way of example and without limitation 19 COUNTY's Board's determination that the requisite 2/3 votes cast by the landowner in the consolidated 20 special election in favor of the Levy and the confirmation and/or Initial Appropriations Limit, and 21 COUNTY's Clerk to the Board of Supervisors' (or such other designated COUNTY Officer) recording of 22 the amendment to the notice of the Lien for the Project Territory with the COUNTY's Recorder pursuant 23 to Streets and Highway Code section 3117.5; or 24 B.COUNTY's Board's express written consent to such Sale or Transfer of 25 Developer's Real Property, or any lot or other portion thereof, provided however, DEVELOPER shall 26 not request any Sale or Transfer of any individual lot or lots to persons seeking to establish, or who 27 may allow other persons seeking to establish, their residences in the Project Territory. However, the 28 preceding provisions of this Section 12 shall not apply to, and any or all of 38 DEVELOPMENT, 10 1 ASHLAN & HAYES, ASSEMI, GRANTOR, LOCANS, MILLERTON, and WC MILLERTON may engage 2 in, marketing activities and opening of escrows for sale of individual lots in the Developer's Real 3 Property prior to completion of the events described in Section 12.A. above, as long as such escrows 4 are not closed and title and ownership are not transferred until after completion of all of such events. If 5 any of 3B DEVELOPME NT, ASHLAN & HAYES, ASSEMI, GRANTOR, LOCANS, MILLERTON, and 6 WC MILLERTON does open an escrow, or otherwise receives any monetary deposit or-enters into any 7 agreement or obtains any commitment for the sale or transfer of any individual lot in Developer's Real 8 Property, prior to COUNTY's completion of proceedings to annex the Project Territory to the District 9 and impose the Special Tax and the recordation of the amendment to the notice of the Lien, that party 10 thereupon shall give, or cause the escrow holder to give, a clear and concise written notic e, in a 11 document separate and apart from any other document, to the potential purchaser, in a form approved 12 by COUNTY, stating that proceedings to annex the Project Territory to the District and establishment 13 and/or confirmation of the Initial Appropriations Limit and to impose the Special Tax and record the 14 amendment to the notice of the Lien on the lot or parcel to be purchased are pending, the proposed 15 maximum rate of the Special Tax (including inflationary adjustments thereto) stated in Exhibit C, that 16 the escrow shall not close nor shall title to the lot or parcel (including any right or interest therein) be 17 transferred until completion of all such proceedings, and the recordation of the amendment to the notice 18 of the Lien on such lot or parcel. 19 13.To the extent that the COUNTY may institute proceedings for the establishment of any 20 CFDs in the remainder of the area of the Specific Plan applicable to the ProJect Territory (the "Specific 21 Plan Area"), or annex or add any contiguous or noncontiguous territories anywhere in Fresno County to 22 the District (whether at the time of the annexation of the Project Territory to the District, or at any time 23 thereafter) that are, in either case, owned by persons or entities other than DEVELOPER, and in either 24 case levy a special tax for Law Enforcement Services in such territories, all of the provisions in of this 25 Agreement concerning DEVELOPER's consent and waiver shall also apply to DEVELOPER vis-a-vis 26 such other CFDs or annexations or additions to the District, so that COUNTY may be fully assured that 27 DEVELOPER shall fully cooperate with COUNTY, and will not defeat, cause delay or otherwise 28 interfere with COUNTY's, establishment and implementation of such CFDs for, or annexations or 11 1 additions to the District of any of such other territories. 2 14.To that end, to the greatest extent allowed by law, each of 3B DEVELOPMENT, 3 ASHLAN & HAYES, ASSEMI, GRANTOR, LOCANS, MILLERTON, and WC MILLERTON hereby 4 additionally expressly waives all right of majority protest and objections (including by way of example 5 and without limitation to objections concerning the regularity or sufficiency of the proceedings) to the 6 proposed annexation(s) or additions of all of such other territories to the District, which are provided for 7 in Government Code sections 53324 and 53339.6, as applicable. 8 15.DEVELOPER shall advance funds to the COUNTY in the amount of Fifteen Thousand 9 Dollars ($15,000) (which, if paid severally in equal proportions, would be Two Thousand, One Hundred 10 Forty Two Dollars and Eighty-Six Cents ($2,142.86) by each of 38 DEVELOPMENT, ASHLAN & 11 HAYES, ASSEMI, GRANTOR, LOCANS, MILLERTON, and WC MILLERTON) (the "Deposit"). 12 16.The Deposit shall be used to pay for the actual fees, costs and expenses incurred by 13 COUNTY for COUNTY's performance of the Special Tax Activities. COUNTY shall hold the Deposit in 14 trust for the aforementioned purposes, provided however, COUNTY shall not be obligated to invest 15 such funds to obtain any interest thereon. 16 17.If the actual fees, costs and expenses incurred by COUNTY for COUNTY's performance 17 of the Special Tax Activities are less than the amount of the Deposit, COUNTY will promptly refund 18 such surplus funds to DEVELOPER in proportions equal to those in which the funds were paid following 19 the conclusion or earlier termination of this Agreement. 2 0 18.If the amount of the Deposit is insufficient to allow COUNTY to complete performance of 21 the Special Tax Activities, COUNTY shall not be obligated to perform any further activities in connection 22 with the Special Tax Activities, unless and until DEVELOPER has remitted an additional dep osit of 23 funds to COUNTY in an amount which COUNTY determines to be an updated estimate of the fees, 24 costs, and expenses of COUNTY, for completing the Special Tax Activities (a "Further Deposit"), less 25 those portions already completed. Any Further Deposit(s) shall be administered in accordance with 26 Sections 15 and 16 of this Agreement. 27 19.It is understood by and between the parties, that COUNTY project staffing is limited 28 within COUNTY Departments to perform the Special Tax Activities without adversely impacting 12 1 COUNTY's planned schedule for other projects or completion thereof, that to perform the Special Tax 2 Activities in an expeditious manner may require the use of COUNTY staff time at overtime rates, and 3 that such circumstances may result in a request by COUNTY to DEVELOPER for an additional deposit, 4 pursuant to Section 18 of this Agreement, prior to COUNTY's performance of the remaining Special 5 Tax Activities on an expedited basis. 6 20.This Agreement shall be effective as of March 26, 2019 and shall continue to be in full 7 force and effect through June 18, 2019; provided, however, that this shall not be construed as limiting 8 the COUNTY's Board's discretion to continue associated Board actions as the Board, in its sole and 9 absolute discretion, may deem appropriate. In the event that the Board continues any associated 10 actions, or circumstances beyond control of COUNTY arise that preclude completion by the date listed 11 hereinabove, then the expiration date of this Agreement shall hereby be deemed extended to the extent 12 necessitated by such Board actions or circumstances beyond the control of COUNTY. Additionally, this 13 Agreement may also be extended by the mutual written consent of DEVELOPER and the Director of 14 the Department of Public Works and Planning or his duly appointed designee. 15 21.This Agreement is not intended to and will not be construed to create the relationship of 16 principal-agent, master-servant, employer-employee, partnership, joint venture or association between 17 COUNTY and DEVELOPER. Each of the parties to this Agreement, their respective officers, agents 18 and employees, in the performance of this Agreement shall act in an independent capacity, as 19 independent contractors, between each other, subject to Section 1 of this Agreement. 20 22.Any terms or conditions of this Agreement may be modified from time to time, without in 21 any way affecting the remainder, by the written consent of the parties. 22 23.Neither COUNTY nor DEVELOPER shall assign, transfer or sub-contract this Agreement 23 nor their rights or duties under this Agreement without the written consent of the other party. 24 24.For purposes of venue, this Agreement shall be deemed to be performed only in Fresno 25 County, California. Venue for any action arising out of or relating to this Agreement shall only be in 26 Fresno County, California. The rights and obligations of the parties and all interpretation and 27 performance of this Agreement shall be governed in all respects only by the laws of the State of 28 California. 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 25.DEVELOPER agrees to indemnify, save, hold harmless, and at COUNTY's request, defend COUNTY, its officers, agents, employees, and COUNTY's Consultant from and against any and all claims, demands, losses, costs, expenses (including attorney's fees and court costs), damages, recoveries, deficiencies or liabilities occurring or resulting to COUNTY. including its officers, agents, employees, and COUNTY's Consultant, to the extent caused by the actual or alleged performance, or failure to perform, by DEVELOPER, its officers, agents, or employees under this Agreement, and from and against any and all claims, demands, losses, costs, expenses (including attorney's fees and court costs), damages, recoveries, deficiencies or liabilities occurring or resulting to any person, firm, or corporation to the extent injured or damaged by the actual or alleged performance, or failure to perform, of DEVELOPER, its officers, agents, or employees under this Agreement and by any dangerous conditions, whether known or unknown, that exist or are alleged to exist on any of DEVELOPER's real properties located in the Project Territory. 26.The parties agree that Section 1 and each and every one of Sections 5 through 25 of this Agreement shall, individually and collectively, survive the termination of the remainder. 27.Any of 3B DEVELOPMENT, ASHLAN & HAYES, ASSEMI, GRANTOR, LOCANS, MILLERTON, and WC MILLERTON or COUNTY may terminate this Agreement at any time for cause of another party's material breach of its obligations, provided not less than ten (10) days' advance, written notice has been given to all other parties and such breach remains uncured in such time. The party receiving said notice may respond to said notice and any charges contained therein within that time. If the alleged breach cannot be cured within ten (10) days, the party receiving said notice may be 21 given reasonable additional time to cure, provided the party commences cure within such ten (10) days 22 and diligently pursues the cure to completion, and provided further that in the case of an alleged breach 23 by any of 38 DEVELOPMENT, ASHLAN & HAYES, ASSEMI, GRAN TOR, LOCANS, MILLERTON, or 24 WC MILLERTON, the deadline hereinabove, as may be extended In accordance with the provisions 25 pertaining thereto, for COUNTY's annexation of the Project Territory to the District and establishment 26 and/or confirmation of the Initial Appropriations Limit and recordation of the amendment to the notice of 27 the Lien shall be extended by each day beyond such ten (10) day cure period that the alleged breach 28 by any of 38 DEVELOPMENT, ASHLAN & HAYES, ASSEMI, GRANTOR, LOCANS, MILLERTON, or 14 1 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of 2 the day and year first above written. 3 4 COUNTY OF FRESNO 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 By: --z s 3c: ---~ Nathan Magsig, Chairman of the Board of Supervisors of the County of Fresno ATTEST: Bernice E. Seidel Clerk of the Board of Supervisors County of Fresno, State of California By: ci,l\! ·. 41t Deputy Project No. Org. 21 Fund No. 22 Subclass Account No. YMNT19 1186 0085 17406 4910 23 24 25 26 27 28 18 EXBIBITB COMMUNITY FACILITIES DISTRICT No. 2006-01 (,Police Protection Services) County of Fresno ANNEXATION� :PREPARATION REQUIREMENTS This document is only intended to be a general guide f�r providing some basic infoIIDation conoem:ing the preparation of .Annexation Maps for Commwtity FacilitiesDistrict No. 2006-01 (Police Protection Services) County of Fresno (also called the Countywide Mello-Roos District for Police Protection Services). This document is not a complete �illY of ?.ll oftbe legal r_eqµirements that may apply to Sl\Ch maps. No.r may trus document be considered as legal odvice coocetaing the legal requirements for preparmg such maps. It is the Jnndowne.r's �ole ·responsibility to en�ure tltat Annex�tion Maps that it proposes to the County shall comply in all respects with the legal requirements applicnbl� t� such maps. A landowner's failure to prepare its Ann�ation Map in full compliance Vfith all legal requirements applicnble to such mnp will be grouiid'S, for County staff to rejec� such mnpi· nndto require the lnndowner to re-submit rt correct AD·rrexntion Map. Such denial will likely cause a delny in the County's processiiJ_-g of the njfected· proposed· nnnexatiou.. .: .. . .. . : . . . All proposed Annexation Maps for Community Facilities District No. 2006-01 (Police Protection Services) County of Fresno must, ot a minimum, comply with all of tile legal· requirements of the Mello-Roos Community Facilities Act of 1982, Chaptel" 2.5 (commencing with Section ·53311) of Part 1 ofDivision 2 of Title 5 of the Government· Code), and all of the legal requirements of Division 4.5 (Notice Of Special Assessment;Special Tax, And Foreclosure Proceedings), of the Streets andHighways Code ( commencing with Section 3100). Without limiting the general{ty of the foregoing, all proposed Annexation Maps mustcomply with all of the following minimum Iegol requirements set forth in the following sections of the Streets and Highway Code: §3110.5. Proceedings in connection with o. community facilities district; separatemap of area proposed to be :mnexed · · "In the case of annexation proceedings in connection with n community facilities district, a separate map of the �ea proposed to be annexed shall be prepared and adopted by the legislative body by resolution or ordinance prior to the hearing on the proposed· annexation. It shall be entitled '.Annexation Map No. ---of Community Facilities District No. [2006-01 (Police Protection Services), County of Fresno J 1, California' and ' . 1 Br,ickets denote I1111guage added by the CoUDty so thnt sucil infonnation is tailored to the CoUDty's Community Facilities District. Proposed Annexntion Maps need lo include such tailored iJlfonnntion, but, the brackets need 10 be removed.