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HomeMy WebLinkAbout2007-004 Colony Investments F ''QCT MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF ATASCADERO AND COLONY INVESTMENTS, LLC. THIS MEMO NDUM OF UNDERSTANDING(the "Memorandum") is made and entered into this_2_TTay of February, 2007,by and between the City of Atascadero (the "City"), and Colony Investments, LLC, a California limited liability company(the "Developer"), for The Colony at Apple Valley Project (the"Project"). RECITALS A. On August 12, 2003, the City Council approved the Colony at Apple Valley planned development and tract map in accordance with the Subdivision Map Act of the State of California and the subdivision ordinances of the City. As part of that tract map, the residential development was conditioned such that park maintenance and landscape maintenance costs of the Project be funded by the Project in perpetuity through a benefit assessment district or other mechanism established by Developer, subject to City approval. B. A Landscaping and Lighting Assessment District was formed by the City Council of the City of Atascadero on May 23, 2006 to cover fifty(50%) percent of the park and landscape maintenance costs to maintain the park. C. Developer has constructed or is in the process of constructing certain public improvements in accordance with the Project tentative tract map and must fulfill conditions of approval prior to approval of a final map. D. Among other things, approval of the final map is conditioned upon the establishment of a Memorandum between City and Developer whereby Developer will contribute a designated amount of funds toward park maintenance costs for a specified period of time. NOW, THEREFORE, the parties agree to as follows: MEMORANDUM 1. Purpose. The purpose of this Agreement to comply with the conditions of approval of the Apple Valley subdivision requiring that the Developer pay fifty(50) percent of the costs of operating and maintaining the park for the first five years after City accepts the park. The parties have agreed that Developer shall contribute a total of$125,000 for operation and maintenance, which may be paid over five years, in equal payments of$25,000. City shall used the funds for the operation and maintenance of the park, and supplement the funds with the assessments collected by the Landscaping and Lighting Assessment District 01-Apple Valley against the properties in the district. Commencing with the sixth year, the City shall contribute fifty(50) percent of the cots of operating and maintaining the park, and continue to collect assessments for the remaining fifty(50)percent from the property owners. 1 844263.2 11335.1 2. Effective Date. This Memorandum shall become effective upon the date upon which this Memorandum is last executed by Developer or by the City(the "Effective Date"). 3. Covenants. The provisions of this Memorandum constitutes covenants that run with the land comprising the Property. 4. Interest of Developer. Developer hereby warrants that it has a legal or equitable interest in the Property. 5. Park and Landscape Funds. Developer shall pay to City in the amount of One Hundred Twenty-Five Thousand($125,000) Dollars for the maintenance of parks and landscaping of the area described in Section 5 of this Memorandum. Such funds shall be paid in annual installments of Twenty-Five Thousand($25,000) Dollars ("Installments") for a period of five (5) years. City shall fund fifty(50 percent of the maintenance of park and landscaping after the five year period provided in this Memorandum through the City's General Fund or other sources. 5.1 The first Installment shall be paid by Developer to City within thirty(30) days of the Effective Date of this Memorandum. 5.2 All subsequent Installments shall be paid to City by December 1 of each year until full payment of the One Hundred Twenty-Five Thousand Dollars ($125,000.00) obligation is made by Developer. 5.3 Payment shall be made to the"City of Atascadero" and delivered to the City Manager at the address set forth in Section 14 below. 6. Maintained Property. That portion of The Colony at Apple Valley Subdivision provided and designated for the non-exclusive use of subdivision residents and the public, including lawn area, walking path,picnic tables and other park features, and as more fully identified in Exhibit"A"to this Memorandum("Park Area"). 7. Maintenance. City shall maintain the Park Area in good condition and repair, and the cost thereof shall be shared with Developer in accordance with this Memorandum. 8. Term. This Memorandum shall commence upon the Effective Date and shall continue until the later to occur of the following: 8.1 The fifth(5`h)anniversary of the Effective Date, or, 8.2 Full payment by Developer of the One Hundred Twenty-Five Thousand ($125,000) Dollar obligation to City, as more specifically described in this Memorandum. 9. Security. Developer shall file with this Memorandum a bond security in the amount of One Hundred (100%) Percent of the total obligation under this Memorandum, minus any payments that have been made to City. The total cost is in the amount of One Hundred Twenty-Five Thousand($125,000) Dollars,to guarantee and secure the Developer's obligation for the payment of maintenance costs as required by this Memorandum and conditions of 2 844263.2 11335.1 approval to the Project Tentative Tract Map. The Bond shall be subject to the approval of the City. 10. Default. In the event of Developer's default under this Memorandum, Developer shall be deemed to be in breach of this Memorandum and City may serve written notice upon Developer for the breach of this Memorandum. Developer shall have fifteen days from receipt of written notice by City to cure any default. 11. Penalties. Developer shall be in default of this Memorandum for every day in which payment of annual Installment is late. Developer shall incur a penalty fee in the amount of One Hundred($100) Dollars for every day the Installment payment is late. If Installment is not paid within Thirty(30) days of payment date, City may execute bonds submitted by Developer pursuant to this Memorandum as security. 12. Notices. A notice, demand or other communication under this Memorandum by either party to the other must be in writing and will be deemed to have been given upon receipt or refusal thereof, if it is sent by registered or certified mail, postage prepaid, return receipt requested, deposited with any nationally-recognized overnight carrier that routinely issues receipts, or delivered personally, to the address set forth below, or at such other address with respect to either such party as that party may, from time to time, designate in writing and forward to the other as provided in this section. If to City: City of Atascadero 6907 El Camino Real Atascadero, California 93422 Attn: City Manager If to Developer: Colony Investments, LLC 6955 El Camino Real, Suite 200 Atascadero, California 93422 Attn: Dennis Moresco 13. Waivers, Amendments and Modifications. All waivers of the provisions of this Memorandum must be in writing and signed by the appropriate authorities of City or Developer, and all amendments or modifications hereto must be in writing and signed by the appropriate authorities of City and Developer. Developer shall bear all costs of amendments to this Memorandum that are requested by the Developer. 14. AttorneyFees. In the event any legal action is brought to enforce or interpret this Memorandum, the prevailing party shall be entitled to an award of reasonable attorney fees, in addition to any other relief to which it may be entitled. 15. Personal Nature of Developer's Obligations/Assignment. All of Developer's obligations under this Memorandum are and shall remain the personal obligations of Developer notwithstanding a transfer of all or any part of the property within the Subdivision subject to this Memorandum, and Developer shall not assign any of its obligations under this Memorandum without the prior written consent of the City. 3 844263.2 11335.1 16. No Vesting of Rights. Entering into this Memorandum shall not be construed to vest Developer's rights with respect to any change in any zoning or building law or ordinance. 17. Construction and Interpretation. It is agreed and acknowledged by Developer that the provisions of this Memorandum have been arrived at through negotiation, and that Developer has had a full and fair opportunity to revise the provisions of this Memorandum and to have such provisions reviewed by legal counsel. Therefore, the normal rule of construction that any ambiguities are to be resolved against the drafting party shall not apply in construing or interpreting this Memorandum. 18. Assignment. No party shall assign this Memorandum or any right or privilege any party might have under this Memorandum without the prior mutual written consent of all parties hereto,which consent shall not be unreasonably withheld,provided that the assignee agrees in a written notice to all parties to carry out and observe each applicable party's Memorandums hereunder. 19. Severability. The provisions of this Memorandum are severable. If any portion of this Memorandum is held invalid by a court of competent jurisdiction, the remainder of the Memorandum shall remain in full force and effect unless amended or modified by mutual written consent of the parties. 20. Rights and Remedies are Cumulative. Except as may be otherwise expressly stated in this Memorandum, the rights and remedies of the parties are cumulative, and the exercise by any party of one or more of its right or remedies shall not preclude the exercise by it, at the same time or at different times, of any other rights or remedies for the same default or any other default by another party or parties. 21. Actions. Any action by any party to this Memorandum shall be brought in the appropriate court of competent jurisdiction within the County of San Luis Obispo, State of California, notwithstanding any other provision of law which may provide that such action may be brought in some other location. The law governing this Memorandum is the law of the State of California. 22. Integration. This Memorandum and its Exhibits integrate all of the terms and conditions related or incidental to its subject matter, and supersede all negotiations or previous Memorandums between the parties with respect to its subject matter. 23. Negation of Joint Venture or Partnership. Nothing herein contained shall be in any way construed as expressing or implying that the parties hereto have joined together in any joint venture,partnership or in any manner have agreed to or are contemplating the sharing of profits and losses among themselves in relation to any matter relating to this Memorandum. 24. Fees Commissions, Gifts or Interests. City and Developer each represent that neither has engaged any broker, agent or finder, and that neither claims such a commission or fee, in connection with this Memorandum. Developer shall pay no fee or commission,make no gifts to any employee or official of the City. 4 844263.2 11335.1 25. Non-liability of City Officials and Employees. No member, official or employee of City shall be personally liable to Developer in the event of any default or breach by City, or for any amount which may become due to Developer, or for the performance of any obligations under the terms of this Memorandum. 26. Exhibits. All exhibits and attachments to which reference is made are deemed incorporated in this Memorandum. 27. Counterparts. This Memorandum may be executed in counterpart originals, each of which shall be deemed an original, but all of which, together shall constitute one and the same instrument. IN WITNESS WHEREOF, City and Developer are executing this Memorandum as of the date first set forth above. CITY: DEVELOPER: City of Atascadero, a Colony Igvestrn ts.,LLC, a Municipal corporation California limited company a ky By: B Name: 1'�i ��� � Z-K! onLv Name: &�niS O!Ee.sco Title:_ `'� Title:_ Am6f-,r ATTEST: / --�-- APPROVED AS TO FORM: Marcia McClure Torgerson, City Cle Name: Title: APPROVED AS TO FORM: J Patfck L. Enright, City Attorney 5 844263.2 11335.1 State of California ) County of San Luis Obispo ) On JanuM 19, 2007 before me, Susan H. Jones,Notary Public, personally appeared Dennis Moresco personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. coi!AryeNa,#t6~ Notary Mft'-ccftffvo Son LtA owipo cw* comm.EvftFVb2Z tot EXHIBIT A Portion of Lot 72 of Tract 2495, as recorded in Book at Page of Maps, in the Office of the County Recorder, San Luis Obispo, State of California. a F 3y3 w 1 } Pz,. �Z t f 4 yy �r rs f Nil, Ei z 7 „a L f S3 i 55 "' F �'��? F j Fa tF } Z f E eta E q4t � j tf 6 844263.2 11335.1 Midland Pacific Building Corporation 7305 MORRO ROAD SUITE 200 ATASCADERO, CA 93422 Tel 805/466-5100 Fax 805/466-5105 Memorandum To: Kerry Margason From: Susan Jones Date: 3/5/07 City of Atascadero Community Project: Development Dept. The Colony at Apple Valley Enclosed please find the signed Memorandum of Understanding regarding the payment of park maintenance fees. I have also enclosed a check in the amount of$25,000 which represents the first installment of the fee. The bond for the remainder will be delivered to me early this week. Please give me a call if you have any questions.