HomeMy WebLinkAboutAgenda Report - November 3, 2004 I-02AGENDA ITEM �20
CITY OF LODI
COUNCIL COMMUNICATION
TM
AGENDA TITLE: Adopt Resolution Authorizing City Manager to Execute Park Purchase and
Construction Agreement with FCB Building Partners I, LP, for the Acquisition
of the Park Site and Construction of the Park Improvements for
Century Meadows Park and Appropriate Funds ($24,000)
MEETING DATE: November 3, 2004
PREPARED BY: Public Works Director
RECOMMENDED ACTION: That the City Council adopt a resolution authorizing the City Manager
to execute the park purchase and construction agreement with
FCB Building Partners I, LP, for the acquisition of the park site and
construction of the park improvements for Century Meadows Park.
BACKGROUND INFORMATION: On December 18, 2002, the City of Lodi and FCB Building
Partners I, LP, entered into an improvement agreement for the
Century Meadows Two, Unit No. 4, Tract No. 3272, subdivision. A
planned neighborhood park site that is in substantial conformance
with the adopted City of Lodi Parks and Recreation Open Space Master Plan (1994) is located within this
subdivision. A copy of the Century Meadows Park site layout is provided in Attachment A. All public
improvements for this subdivision have not yet been accepted by the City Council.
On December 18, 2002, the City of Lodi and FCB Building Partners I, LP, also entered into a Park
Acquisition Agreement reserving the park parcel for future acquisition by the City. Under the terms of this
agreement, the parcel must be purchased within two years after completion and acceptance of all public
improvements. The purchase price shall be the market value as of August 22, 2001, (date of approval of
the vesting tentative map) plus the accumulated costs for property taxes, maintenance, and loan interest.
The Park Purchase and Acquisition Agreement (Attachment B) will provide for acquisition of the park site
and the constructed improvements from the developer, for the most part by issuing Parks and Recreation
Impact Mitigation Fee credits. A summary of the expected project costs including land, construction,
construction administration, and escrow fees, along with the developer's cost of the land, is presented in
Attachment C.
The price for the land on August 22, 2001, is the developer's cost of the land, $150,000 per acre. Based
upon the criteria for determining the total land value, the total purchase price of the 2.99 -acre park site is
$551,963. The carry period of the land is 3 years. The assumed property tax rate is 1 % per year. The
interest rate is 5.25%. An itemization of the costs comprising the purchase price is provided in
Attachment C, Summary of Costs.
The developer is currently building three subdivisions in the vicinity of Century Meadows Park,
comprising 277 homes that collectively will generate $1,016,553 in Parks and Recreation Impact
APPROVED.
Janet,8. Keete(, Interim City Manager
J:IPROPERTYICC_CenturyMeadowsParkPurchase.doe
1012812004
Adopt Resolution Authorizing City Manager to Execute Park Purchase and Construction Agreement with
FCB Building Partners I, LP, for the Acquisition of the Park Site and Construction of the Park
Improvements for Century Meadows Park and Appropriate Funds ($24,000)
November 3, 2004
Page 2
Mitigation Fees (IMF). This agreement would effectively issue fee credits to the developer in exchange
for delivery of the improved park site and construction of the park improvements. Under the terms of the
agreement, the developer is responsible for construction administration costs, with no reimbursement
from the City. It is expected that an additional $24,000 is required from the Parks and Recreation IMF
fund over and above the $1,016,553 in fee credits in order to complete the project.
Construction of the park improvements is scheduled to immediately begin and is expected to conclude in
April 2005. At that time, the agreement commits the developer, at the developer's cost, to an extended
maintenance period through December 2005.
We recommend that the City Council authorize the City Manager to sign the agreement and appropriate
funds necessary to complete the purchase and construction.
FUNDING: Parks and Recreation Impact Mitigation Fee Fund ($24,000)
James R. Krueger, Finance Director
Richard C. Prima, Jr.
Public Works Director
Prepared by F. Wally Sandeiin, City Engineer
RCPIFWS/pmf
Attachments
cc: FCB Building Partners, I, LP
J:IPROPERTYICC_CenturyMeadowsParkPurchase.doc 1 012 8120 04
CITYOF LODI
WORKS
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CENTURY MEADOWS
PARK
ATTACHMENT A
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September 22, 2004
FIRST AMERICAN TITLE COMPANY
Stockton, California
Attention: Debi Barnett (209) 929-4844/ Fax: (209) 929-4850
Escrow No. 219217 -DB ("Escrow")
Re: Agreement of Sale of Real Property and Joint Escrow Instructions
Buyer: CITY OF LODI, a Municipal Corporation
Seller: FCB BUILDING PARTNERS I, L.P., a California limited partnership
Dear Ms. Barnett:
The CITY OF LODI, a Municipal Corporation, hereinafter referred to as "Buyer," and FCB
BUILDING PARTNERS I, L.P., a California limited partnership, hereinafter referred to as "Seller," have
jointly executed this document, which is both an agreement for the sale of the hereinafter described real
property and instructions to FIRST AMERICAN TITLE COMPANY ("Escrow Holder") for the completion
of the transfer and conveyance of real property described below (hereinafter "Agreement"). The terms
and conditions of the Agreement are as follows:
1. Transaction: Buyer and Seller previously entered into a document entitled "Agreement"
which was executed by Buyer on December 24 and 27, 2002, and by Seller on December 10, 2002 (the
"Park Site Contract"). Pursuant to the Park Site Contract, Buyer and Seller agreed to enter into this
Agreement whereby Buyer agrees to purchase from Seller, and Seller agrees to sell to Buyer, the
Property, as defined below, upon the terms and conditions of this Agreement.
2. Property to be Sold: The real property to be sold, transferred and conveyed shall
consist of approximately 2.99 acres located generally south of Millbrook Drive, City of Lodi, San Joaquin
County ("County"), California, and shown as parcel A on the subdivision map entitled Tract 3272,
Century Meadows Two, Unit No. 4, recorded on December 30, 2002 in Book 37 of Maps, page 83 (the
"Property") and park improvements as defined in Improvement Plan Nos. 004D021-1 through 004D021-
10 and as generally presented on Exhibit A (the "Improvements"). Prior to closing, the Property shall be
improved as described in paragraph 5.A., below.
3. Payment: The consideration to be delivered to Seller by Buyer for the Property shall be
park fee credits in the amount of One Million, Sixteen Thousand, Five Hundred Fifty Three Dollars
($1,016,553.00) (the "Fee Credits") as more fully described in paragraph 5.B., below and as shown on
Exhibit B..
4. Close of Escrow: Conveyance of legal title by recordation of a grant deed for the
Property as required by this Agreement (herein "Close of Escrow" or "Closing") shall occur on or before
April 1, 2005.
5. Conditions Precedent to Close of Escrow: This Agreement, consummation of the
transaction herein contemplated, the respective rights and obligations of the parties hereto, and the Close
of Escrow are subject to and contingent upon the good faith satisfaction and/or completion of each of the
following conditions precedent (the "Conditions Precedent"), or the written waiver thereof, by Buyer or
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FCB Building Partners — City of Lodi Park PSA
Seller as specified below.
A. Completion of Improvements: On or before Closing, Seller shall have
completed construction of the improvements as described on Exhibit A. In the event the cost to complete
the improvements differs from the amounts set forth on Exhibit B (and in the event that difference is
reasonable and necessary) as determined by the City Engineer, the amount of the Fee Credits shall be
increased or decreased by the same amount. Buyer shall be deemed to have accepted all improvements at
the Close of Escrow. Seller represents and warrants that all improvements shall be or have been
performed in a workman like manner and comply with the plans and specifications set forth in City of
Lodi Drawing Nos. 0041302 1-1 through 004D021-10. This representation and warrant shall survive the
close of escrow.
B. Fee Credits: On or before Closing, Buyer shall deliver to Seller a certificate (the
"Fee Credits Certificate") entitling Seller, and its successors and assigns, to a "dollar for dollar" credit
against City of Lodi Parks and Recreation Development Impact Fees payable upon approval of an
Improvement Agreement or Subdivision final map for filing by the Lodi City Council. The calculation of
the Parks and Recreation Development Impact Fee Credit shall be based upon the fee in effect at the time
of execution of this Agreement. Following the Close of Escrow, Seller and its successors and assigns
upon presentation to the City of Lodi of the Fee Credits Certificate or a written assignment of any portion
thereof shall have the right to a "dollar for dollar" credit against any fees otherwise payable upon issuance
of a building permit or in accordance with a subdivision agreement between Buyer and Seller. Buyer and
Seller agree to keep a joint accounting of the used and unused Fee Credits. Upon written request of
Seller, Buyer agrees to provide Seller with an accounting showing the total Fee Credits, the date and
amount for any Fee Credits that have been redeemed, and the lots for which the Fee Credits were used.
Upon request of Seller, Buyer agrees to confirm, in writing, that all of the Fee Credits have been used and
that the Fee Credits Certificate has been fully redeemed.
6. Title:
A. Condition of Title. Fee title to the Property is to be conveyed to Buyer free and
clear of all liens and encumbrances excepting only exceptions as shown on the
Preliminary Report of Title dated , 2004 and issued by Escrow Holder.
B. Failure of Title. If Seller, after using reasonable efforts, notifies Buyer that it is
unable to convey fee title to Buyer as provided in this paragraph 6, Buyer, by written notice to Seller, as
Buyer's sole remedy, shall have the right to elect to either: (i) terminate this Agreement in which case
this Agreement shall be null and void without liability of any nature to any party; or (ii) without
adjustment of the Purchase Price for any damages and with Seller released from any liability because of
such defect, accept and take all such title or interest to the Property or otherwise as Seller has or can
convey
7. Prorations: All non -delinquent general and special property taxes, assessments, and
maintenance charges of the Property and assessments and levies which are or may become a lien against
the Property are to be prorated in cash or readily available funds as of Close of Escrow based on the most
recent property tax bill. Reassessments and escaped assessments attributable to the period prior to the
Close of Escrow and supplemental taxes arising out of transfers or conveyances of the Property prior to
the Close of Escrow shall be paid by Seller.
8. Costs and Expenses:
A. Seller. Seller shall pay one-half ('/2) of the Escrow and recording fees.
FCB Building Partners — City of Lodi Park PSA
B. Buyer. Buyer shall pay one-half (%) of the Escrow and recording fees and the
premium for any title insurance or endorsement Buyer may request.
9. Notices: Any notices and demands as required by this Agreement and Escrow Holder
shall be given in writing, delivered personally, or by United States mail registered or certified, postage
prepaid, return receipt requested, or by overnight mail delivery, or by facsimile transmission. Notice shall
be considered given two (2) business days after the date stamped on the postmark if by mail; upon
delivery, if by personal delivery; one (1) business day after pick-up or deposit if by an overnight mail or
delivery service; or upon the next business day after transmission if by facsimile, if the original is sent by
regular mail within forty-eight (48) hours, to the following addresses:
SELLER: FCB BUILDING PARTNERS I, L.P.
3247 W. March Lane, Suite 220
Stockton, California 95219
Attention: Jim Jimison
Fax: (209) 957-3618
With a copy to:
LAW OFFICES OF MARC B. ROBINSON
3255 W. March Lane, Suite 230
Stockton, California 95219
Attention: Marc B. Robinson, Esq.
Fax: (209) 954-9091
BUYER: CITY OF LODI
221 W. Pine Street
P.O. Box 3006
Lodi, California 95241-1910
Attention: Richard Prima
Fax: (209) 333-6706
10. Documents to be Delivered to Escrow Holder: For use in connection with this Escrow,
and subject to the terms and conditions thereof, and of the instructions hereinafter set forth:
A. Seller shall deliver to Escrow Holder:
(1) A grant deed for the Property, properly executed and notarized;
(2) A duly executed affidavit in the form required by law that Seller is not a
"foreign person" as defined in Section 1445 of the Internal Revenue Code, also known as The Foreign
Investment in Real Property Tax Act, and an equivalent California form (collectively the "FIRPTA
Statement");
(3) Any and all other documents reasonably required for the Close of
Escrow;
(4) Cash for other obligations to be paid by Seller pursuant to this
Agreement.
B. Buyer shall deliver to Escrow Holder:
(1) The Fee Credits Certificate;
FCB Building Partners — City of Lodi Park PSA
(2) Cash for the other obligations to be paid by Buyer pursuant to this
Agreement;
(3) Approved Resolution of the City of Lodi accepting the improvements.
11. Instructions: On or before the date set for the Close of Escrow and when:
A. You hold for recording and delivery to Buyer, Seller's grant deed;
B. You hold for Seller's account, the Fee Credits Certificate;
C. You hold for delivery to Buyer the FIRPTA Statements;
Then you are authorized to:
D. Record and deliver to Buyer, Seller's grant deed to the Property;
E. Deliver to Seller the Fee Credits Certificate;
F. Deliver to Buyer the FIRPTA Statement;
G. Pay all costs and expenses as authorized by these instructions and charge each
party's account for such costs and expenses pursuant to paragraph 8; and,
H. Deliver to each party your itemized settlement statement and statement of costs
charged to each party's account.
12. Time: Time is of the essence in connection with this Agreement, and failure to timely
comply with the provisions hereof shall be a material breach of this Agreement.
13. Assignment: Either party may assign its rights and duties hereunder to an affiliated or
related entity. All other assignments shall be subject to the other party's consent, which consent may not
be unreasonably withheld. No assignment shall relieve the assigning party of its obligations hereunder.
MATTERS OF AGREEMENT
14. No Real Estate Commission: Buyer and Seller acknowledge that no real estate
commission or finder's fee is due any broker or agent in connection with this transaction. In the event of
any claim for any brokers' or finders' fee or commission in connection with the execution or
consummation of this Agreement, Seller shall indemnify, hold harmless, and defend Buyer from and
against any such claim based upon a statement, representation, or agreement by Seller, and Buyer shall
indemnify, hold harmless and defend Seller from and against any claim for any such claim based upon a
statement, representation, or agreement made by Buyer.
15. "AS IS." Buyer is capable of ascertaining and analyzing all facts material to its decision
to purchase the Property. Buyer acknowledges that the Escrow period will give Buyer the opportunity to
conduct such investigations and evaluations as Buyer deems necessary. Buyer agrees and acknowledges
that except as expressly set forth in this Agreement, neither Seller, nor anyone on Seller's behalf has
made any representation or warranty respecting the Property, or otherwise, in connection with the
transaction contemplated herein. Without limiting the generality of the foregoing, Buyer hereby
acknowledges that it will be purchasing the Property in an "AS -IS" condition, and further that:
A. Buyer has made or will make Buyer's own independent investigation
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FCB Building Partners — City of Lodi Park PSA
respecting the Property and Project and all other aspects of this transaction, and Buyer is relying entirely
thereon and on the advice of Buyer's consultants in entering into this Agreement.
B. Buyer has reviewed or will review all instruments, records, and
documents which Buyer deems appropriate or advisable to review in connection with this transaction, and
Buyer has determined or will determine prior to the Close of Escrow that the information and data
contained therein or evidenced thereby is satisfactory to Buyer.
C. Buyer acknowledges that Seller has not made any representations or
warranties, express or implied, of any kind or nature in connection with soils or physical conditions of the
Property, Project, or any other property thereabouts, or the use, presence, generation, or disposal on the
Property, Project, or any other property thereabouts of any flammable explosives, radioactive materials,
hazardous wastes, toxic substances or related materials or conditions.
BUYER ACKNOWLEDGES AND AGREES THAT UPON CLOSING SELLER SHALL SELL AND
CONVEY TO BUYER AND BUYER SHALL ACCEPT THE PROPERTY "AS IS, WHERE IS, WITH
ALL FAULTS", EXCEPT TO THE EXTENT EXPRESSLY PROVIDED OTHERWISE IN THIS
AGREEMENT. BUYER HAS NOT RELIED AND WILL NOT RELY ON, AND SELLER IS NOT
LIABLE FOR OR BOUND BY, ANY EXPRESS OR IMPLIED WARRANTIES, GUARANTIES,
STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY OR
RELATING THERETO (INCLUDING SPECIFICALLY, WITHOUT LIMITATION, ANY
PROSPECTUS DISTRIBUTED WITH RESPECT TO THE PROPERTY) MADE OR FURNISHED BY
SELLER, THE MANAGERS OF THE PROPERTY, OR ANY REAL ESTATE BROKER OR AGENT
REPRESENTING OR PURPORTING TO REPRESENT SELLER, TO WHOMEVER MADE OR
GIVEN, DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING, EXCEPT THOSE
SPECIFICALLY SET FORTH IN THIS AGREEMENT. BUYER ALSO ACKNOWLEDGES THAT
THE PURCHASE PRICE REFLECTS AND TAKES INTO ACCOUNT THAT THE PROPERTY IS
BEING SOLD "AS -IS."
BUYER ACKNOWLEDGES RECEIPT OF VARIOUS DOCUMENTS RELATING TO THE
PROPERTY, AND REPRESENTS TO SELLER THAT BUYER HAS CONDUCTED, OR WILL
CONDUCT PRIOR TO CLOSING, SUCH INVESTIGATIONS OF THE PROPERTY, INCLUDING
BUT NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF, AS
BUYER DEEMS NECESSARY OR DESIRABLE TO SATISFY ITSELF AS TO THE CONDITION OF
THE PROPERTY AND THE EXISTENCE OR NONEXISTENCE OR CURATIVE ACTION TO BE
TAKEN WITH RESPECT TO ANY HAZARDOUS OR TOXIC SUBSTANCES ON OR
DISCHARGED FROM THE PROPERTY, AND WILL RELY SOLELY UPON SAME AND NOT
UPON ANY INFORMATION PROVIDED BY OR ON BEHALF OF SELLER OR ITS AGENTS OR
EMPLOYEES WITH RESPECT THERETO, OTHER THAN SUCH REPRESENTATIONS,
WARRANTIES AND COVENANTS OF SELLER AS ARE EXPRESSLY SET FORTH IN THIS
AGREEMENT. UPON CLOSING, BUYER SHALL, EXCEPT FOR THOSE EXPRESS
REPRESENTATIONS, WARRANTIES AND COVENANTS WHICH SURVIVE THE CLOSING,
ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING BUT NOT LIMITED TO,
CONSTRUCTION DEFECTS AND ADVERSE PHYSICAL AND ENVIRONMENTAL
CONDITIONS, MAY NOT HAVE BEEN REVEALED BY BUYER'S INVESTIGATIONS, AND
BUYER, UPON CLOSING, SHALL, EXCEPT FOR THOSE EXPRESS REPRESENTATIONS,
WARRANTIES AND COVENANTS WHICH SURVIVE THE CLOSING, BE DEEMED TO HAVE
WAIVED, RELINQUISHED AND RELEASED SELLER (AND SELLER'S OFFICERS, DIRECTORS,
MEMBERS, SHAREHOLDERS, EMPLOYEES AND AGENTS) FROM AND AGAINST ANY AND
ALL CLAIMS, DEMANDS, CAUSES OF ACTION (INCLUDING CAUSES OF ACTION IN TORT),
LOSSES, DAMAGES, LIABILITIES, COSTS AND EXPENSES (INCLUDING REASONABLE
ATTORNEYS' FEES) OF ANY AND EVERY KIND OR CHARACTER, (COLLECTIVELY
FCB Building Partners — City of Lodi Park PSA
"CLAIMS") KNOWN OR UNKNOWN, WHICH BUYER MIGHT HAVE ASSERTED OR ALLEGED
AGAINST SELLER (AND SELLER'S OFFICERS, DIRECTORS, MEMBERS, SHAREHOLDERS,
EMPLOYEES AND AGENTS) AT ANY TIME BY REASON OF OR ARISING OUT OF ANY
LATENT OR PATENT CONSTRUCTION DEFECTS OR PHYSICAL CONDITIONS, VIOLATIONS
OF ANY APPLICABLE LAWS AND ANY AND ALL OTHER ACTS, OMISSIONS, EVENTS,
CIRCUMSTANCES OR MATTERS REGARDING THE PROPERTY. IN CONNECTION
THEREWITH, BUYER EXPRESSLY WAIVES ALL RIGHTS UNDER CALIFORNIA CIVIL CODE
SECTION 1542, WHICH PROVIDES THAT:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH
THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN
HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
THE PROVISIONS OF THIS SECTION SHALL SURVIVE CLOSING OR ANY TERMINATION OF
THIS AGREEMENT.
16. General Provisions:
A. Possession. Buyer shall be entitled to possession of the Property upon the Close
of Escrow.
B. Interpretation. This Agreement shall be construed as a whole and in accordance
with the fair meaning of its language, and shall not be construed for or against either party. Each party
has cooperated and participated in the drafting and preparation of this Agreement, and therefore, in any
construction to be made of this Agreement or any of its terms, both parties shall be construed to be
equally responsible for the drafting and preparation of the same. Captions are for convenience and shall
not be used in construing meaning.
C. Inurement. This Agreement and its terms shall inure to the benefit of and be
binding upon the parties, their permitted assigns, and other successors in interest.
D. Entire Agreement. This Agreement supersedes any prior agreement or
correspondence, including correspondence with brokers, and contains the entire agreement of the parties
on the matters covered. No other agreement, statement, or promise made by any party to any employee,
officer, or agent of a party to this Agreement, or any other person, that is not in writing and signed by all
the parties to this Agreement shall be binding upon them. Any amendment, including oral modifications,
must be reduced to writing and signed by the party to be charged to be effective.
E. Attorneys' Fees. In the event any action is filed, as between Buyer and Seller,
the prevailing party therein shall be entitled to recover, as an element of its costs of suit and not as
damages, reasonable attorneys' fees and costs from the party not prevailing. The prevailing party shall be
the party who is entitled to costs of suit, whether or not the suit or award proceeds to final judgment.
F. No Recordation. This Agreement shall not be recorded.
G. Waiver of Covenants, Conditions, Remedy. The waiver by one party of the
performance of any covenants, conditions, or promises shall not invalidate this Agreement, nor shall it be
considered a waiver by it of any other covenant, condition, or promise. The waiver by either or both
parties of the time for performing any act shall not constitute a waiver of the time for performing any
other act or an identical act required to be performed at a later time. The exercise of any remedy provided
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FCB Building Partners — City of Lodi Park PSA
in this Agreement shall not be a waiver of any consistent remedy provided by law, and the provisions in
this Agreement for any remedy shall not exclude other consistent remedies unless they are expressly
excluded.
H. Computation of Time. Any time period to be computed pursuant to this
Agreement shall be computed by excluding the first day and including the last. If the last day falls on a
Saturday, Sunday, or holiday, the last day shall be extended until the next business day that the Escrow
Holder is open for business, but in no case will the extension be for more than three (3) days.
I. Survivability of this Agreement. Except for those provisions specifically and
expressly stated as surviving the Close of Escrow, the Agreement shall terminate upon the Close of
Escrow, the delivery of the grant deed by Seller, and the receipt of consideration.
J. Partial Invalidity. If any term, covenant, or provision in this Agreement is held
by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions
shall remain in full force and effect and shall in no way be affected, impaired, or invalidated.
K. Applicable LawNenue. This Agreement shall be governed, interpreted, and
construed according to the laws of the State of California, and any arbitration or legal proceeding shall be
undertaken in San Joaquin County, California.
L. Damage or Destruction. If damage or destruction to a substantial portion of the
Property occurs prior to Closing, Seller shall give Buyer written notice of such damage or destruction,
and Buyer shall have the option, exercisable within ten (10) business days thereafter either to (i) terminate
this Agreement, in which case Escrow Holder or Seller, as the case may be, shall immediately return all
documents, instruments and monies to the party which deposited same in respect of the Closing, or (ii)
accept the Property in its condition at that time, and receive an assignment of all of Seller's rights to any
insurance proceeds payable by reason of such damage or destruction, with a commensurate reduction in
the Purchase Price. If Buyer elects to proceed under clause (ii) above Seller shall not compromise, settle
or adjust any such insurance claims without Buyer's prior written consent. In either event, Seller shall
have no liability to Buyer or any other person or entity on account of such damage or destruction. For
purposes of this paragraph a substantial portion shall mean twenty percent (20%) or more of the
Property's acreage.
M. Condemnation. If prior to the Closing a substantial portion of the Property is
subject to an actual or threatened taking by a public authority, by the power of eminent domain or
otherwise, Buyer shall have the right, exercisable by giving written notice to Seller within ten (10)
business days after Buyer's receipt of written notice of such actual or threatened taking, either to (i)
terminate this Agreement, in which case Escrow Holder or Seller, as the case may be, shall immediately
return all documents, instruments and monies to the party which deposited same in respect of the Closing,
or (ii) to accept the Property in its then condition, and to receive an assignment of all of Seller's rights to
any condemnation award payable by reason of such taking. If Buyer elects to proceed under clause (ii)
above, Seller shall not compromise, settle or adjust any claims to such award without Buyer's prior
written consent. In either event, Seller shall have no liability to Buyer or any other person or entity on
account of such taking. For purposes of this paragraph a substantial portion shall mean twenty percent
(20%) or more of the Property's acreage.
N. Excusable Delay. The obligations of the parties pursuant to this Agreement
shall in no way be effected, impaired or excused because of a delay within such party's reasonable
control; provided, however, in the event of any interruption or interference resulting from strikes, fire,
flood, acts of God, war, weather, sabotage, riots or material shortages, or governmental action or inaction
which prohibits, limits, or delays entitlement, development, or construction of the Property or Project or
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FCB Building Partners — City of Lodi Park PSA
any act or event reasonably required under this Agreement ("Excusable Delay"), then the time period for
completion of the obligations shall be extended by the length of time that the Excusable Delay was in
existence.
O. Counterparts. This Agreement may be executed in counterparts, each of which
shall constitute an original, but all of which together shall constitute one and the same instrument. The
signature page of any counterpart may be detached there from without impairing the legal effect of the
signature(s) thereon provided such signature page is attached to any other counterpart identical thereto
except having additional signature pages executed by the other party. Counterparts may be delivered by
facsimile provided that original executed counterparts are delivered to the recipient on the next business
day following the facsimile transmission.
P. Relationship of Parties. The parties agree that their relationship is that of Seller
and Buyer, respectively, and that nothing contained herein shall make either party the agent or fiduciary
of the other for any purpose whatsoever, nor shall this Agreement be deemed to create any form of
business organization between the parties, including without limitation a joint venture or partnership, nor
is either party granted any right or authority to assume or create any obligation or responsibility on behalf
of the other party, nor shall either party be in any way liable for any debt of the other.
Q. Remedies For Buyer Default. Buyer understands and agrees that but for
Buyer's agreement to purchase the Property under the terms of this Agreement Seller would not construct
the improvements on the Property as described in paragraph 5.A. above. Therefore, in the event Buyer
fails to purchase the Property as provided in this Agreement Seller shall have the right to seek specific
performance, money damages, or any other remedy available to Seller at law or equity to fully
compensate Seller for all damages, consequential or otherwise, incurred by Seller as the result of Buyer's
failure hereunder. In addition, Buyer further agrees that if Buyer does not complete the purchase of the
Property as provided herein, Buyer shall grant Seller, at Seller's election, all permits and approvals
reasonable or necessary for Seller to subdivide the Property and construct and sell single family homes
thereon.
R. Effective Date. The term "Effective Date" as used herein shall refer to the date
this Agreement has been executed by both parties.
SELLER: FCB BUILDING PARTNERS I, L.P.
a California limited partnership
By:
Its:
Date:
BUYER: CITY OF LODI
By:
Its:
Date:
FCB Building Partners — City of Lodi Park PSA
ACKNOWLEDGMENT AND ACCEPTANCE
Receipt of an original of the foregoing Escrow instructions and the enclosures listed therein is
acknowledged, and we agree to act as Escrow Holder under and pursuant to the terms and conditions of
said instructions.
Dated:
LIST OF EXHIBITS
Exhibit A — Schedule of Improvements
FIRST AMERICAN TITLE COMPANY
Its: Authorized Officer
EXHIBIT A
GIC — Quinn GVLC Lot purchase PSA 081104
EXHIBIT A
SCHEDULE OF IMPROVEMENTS
EXHIBIT A
GIC — Quinn GVLC Lot purchase PSA 081104
ATTACHMENT C
CENTURY MEADOWS PARK
Summary of Costs
Item
Unit
Quantity
Price
Total
Notes
Land Cost
Park Site
ACRE
2.99
$150,000.00
$448,500.00
Property Taxes
ACRE
2.99
4,500.00
13,455.00
(1)
Interest
ACRE
2.99
23,625.00
70,638.75
(2)
Maintenance
ACRE
2.99
6,000.00
17,940.00
(3)
Escrow Fee
LS
1
412.50
412.50
Deed Preparation
LS
1
30.00
30.00
Recording Fees
LS
1
10.00
10.00
Transfer Tax
LS
1
452.56
452.56
Owner's Policy
LS
1
523.88
523.88
Subtotal
$551,962.69
Construction Costs
Clearing & Grubbing
Grading (Rough & Finish)
4" Sewer
Park Light Poles & Fixtures
Concrete Flatwork/Misc. Concrete
Concrete Basketball Pad w/Footing
Shade Structure Slabs/Footings
6' Chain Link w/24" Concrete Strip
6' Chain Link w/PVC slats
Poured -in -Place Playground Surfacing
Playground Equipment
Park Benches
Trash Receptacles
Drinking Fountain
Picnic Tables
Large Group Barbeques
Automatic Irrigation System
Temporary Fencing
ACRE
SF
LF
EA
SF/LF
SF
EA
LF
LF
SF
LS
EA
EA
EA
EA
EA
LS
LS
2
117,520
310
4
7,732
4,665
2
915
79
3,830
1
6
3
1
4
2
1
1
$2,700.00
0.24
22.50
9,500.00
5.68
6.00
25,000.00
34.00
39.00
17.00
55,500.00
1,150.00
1,100.00
4,700.00
2,500.00
1,600.00
78,500.00
3,200.00
Subtotal
Other Costs
Construction Administration (by Developer) LS 1 $0.00
Survey (by City) LS 1 0.00
Testing (by City LS 1 0.00
Contingency LS 1 23,000.00
Subtotal
Notes
$5,400.00
28,204.80
6,975.00
38,000.00
43,917.76
27,990.00
50,000.00
31,110.00
3,081.00
65,110.00
55,500.00
6,900.00
3,300.00
4,700.00
10,000.00
3,200.00
78,500.00
3,200.00
$465,088.56
$0.00
0.00
0.00
23,000.00
$23,000.00
GRAND TOTAL $1,040,051.25
(1) Taxes computed as 1 % of the purchase price per year for 3 years.
(2) Interest computed as 5.25% of the purchase price per year for 3 years.
(3) Maintenance computed as approximately 4.5 cents per square foot per year for 3 years.
RESOLUTION NO. 2004-240
A RESOLUTION OF THE LODI CITY COUNCIL AUTHORIZING THE CITY
MANAGER TO EXECUTE PARK PURCHASE AND CONSTRUCTION
AGREEMENT FOR THE ACQUISITION OF PARK SITE AND
CONSTRUCTION OF THE PARK IMPROVEMENTS FOR CENTURY
MEADOWS PARK, AND FURTHER APPROPRIATE FUNDS
NOW, THEREFORE, BE IT RESOLVED that the Lodi City Council does hereby
authorize the City Manager to execute the Park Purchase and Construction Agreement
with FCB Building Partners I, LP, for the acquisition of the park site and construction of
the park improvements for Century Meadows Park; and
BE IT FURTHER RESOLVED that the Lodi City Council hereby appropriates
$24,000 from the Parks and Recreation Impact Mitigation Fee Fund for this project.
Dated: November 3, 2004
I hereby certify that Resolution No. 2004-240 was passed and adopted by the
City Council of the City of Lodi in a regular meeting held November 3, 2004, by the
following vote:
AYES: COUNCIL MEMBERS — Hitchcock, Howard, Land, and
Mayor Hansen
NOES: COUNCIL MEMBERS — None
ABSENT: COUNCIL MEMBERS — Beckman
ABSTAIN: COUNCIL MEMBERS — None
SUSAN J. BLACKSTON
City Clerk
P 0111 Z' N
CITY COUNCIL
LARRY D. HANSEN, Mayor
JOHN BECKMAN
Mayor Pro Tempore
SUSAN HITCHCOCK
EMILY HOWARD
KEITH LAND
CITY OF LODI
PUBLIC WORKS DEPARTMENT
CITY HALL, 221 WEST PINE STREET
P.O. BOX 3006
LODI, CALIFORNIA 95241-1910
(209)333-6706
FAX (209) 333-6710
EMAIL pwdept@lodi.gov
http:\\www.lodi.gov
October 28, 2004
FCB Building Partners I, LP
c/o Frontiers '
3247 W. March Lane, Ste. 220
Stockton, CA 95219
JANET S. KEETER
Interim City Manager
SUSAN J. BLACKSTON
City Clerk
D. STEVEN SCHWABAUER
City Attorney
RICHARD C. PRIMA, JR.
Public Works Director
SUBJECT: Adopt Resolution Authorizing City Manager to Execute Park Purchase and
Construction Agreement with FCB Building Partners I, LP, for the
Acquisition of the Park Site and Construction of the Park Improvements for
Century Meadows Park and Appropriate Funds ($24,000)
Enclosed is a copy of background information on an item on the City Council agenda of
Wednesday, November 3, 2004. The meeting will be held at 7 p.m. in the
City Council Chamber, Carnegie Forum, 305 West Pine Street.
This item is on the consent calendar and is usually not discussed unless a
Council Member requests discussion. The public is given an opportunity to address
items on the consent calendar at the appropriate time.
If you wish to write to the City Council, please address your letter to City Council,
City of Lodi, P. O. Box 3006, Lodi, California, 95241-1910. Be sure to allow time for the
mail. Or, you may hand -deliver the letter to City Hall, 221 West Pine Street.
If you wish to address the Council at the Council Meeting, be sure to fill out a speaker's
card (available at the Carnegie Forum immediately prior to the start of the meeting) and
give it to the City Clerk. If you have any questions about communicating with the
Council, please contact Susan Blackston, City Clerk, at 333-6702.
If you have any questions about the item itself, please call Wally Sandelin, City Engineer,
at 333-6709.
Richard C. Prima, Jr.
' Public Works Director
RCP/pmf
Enclosure
oc: Cky Clerk
NCC_CENTURYMEADOWSPARKPURCHASE.DOC