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HomeMy WebLinkAboutRES NO 207-88RESOLUTION NO. 207-88 A RESOLUTION OF THE COUNCIL OF THE CITY OF BAKERSFIELD AMENDING THE RANCHO LABORDE SPECIFIC PLAN TO REPLACE SECTION 12.3(2), PARAGRAPH 7, PAGE 36 WITH A MITIGATION AGREEMENT BETWEEN THE FRUIT- VALE SCHOOL DISTRICT AND CLIFFORD BRESSLER (TRUSTEE), DATED AUGUST 9, 1988. WHEREAS, state kaw has changed since adoption of the Rancho Laborde Specific Plan providing school districts with funding based on residentiai and non-residential construction; and WHEREAS, the Fruitvale School District and Clifford Bressler, (trustee) have mutually negotiated a Mitigation Agreement to replace language in the Specific Plan which has been ratified by all effected parties; and WHEREAS, the Mitigation Agreement will provide the same num- ber of school sites and is an adequate substitute for Section 12.3(2), Paragraph 7, Page 36; and WHEREAS, the proposed text changes do not result in an envi- ronmental impact and the original negative declaration approved May 7, 1986 is applicable to this proposal; and WHEREAS, the Planning Commission held a duly noticed public hearing on August 18, 1988 and recommended approval o~ the amendment. NOW, THEREFORE BE IT RESOLVED, that the Rancho Laborde Specific Plan is amended by replacing Section 12.3(2), Paragraph 7, Page 36 with a Mitigation Agreement between the Fruitvale School District and Clifford Bressler (trustee), dated August 9, 1988 attached as Exhibit A. ........... o0o .......... -2- I HEREBY CERTIFY that adopted by the Council of meeting thereof held on ing vote: the foregoing Resolution was passed and the City of Bakersfield at a regular October 12, 1988 , by the follow- AYES: COUNCILMEMbERS: CHtLDB, DeMIJND, SMITH. NOES: COUddl[ MEMBFRS: None ABSENT: COdNL, IL~8~S None ABSTAINING: COUNCiLMEMOERS:~o~R Council of the City of Bakersfield APPROVED October 12, 1988 MAYOR of the City of/Bakersfiel APPROVED as to form: -- C~TY ATTpkN~f the~ city of Bake s~ield Minutes, PL/C, 8/18/88 Page 5 4. PUBLIC HEARING - AMENDMENT TO "RANCHO LABORDE" SPECIFIC PLAN This is a request by Laborde Community Development Company, Inc., to amend Specific Plan 86-2, Section 12.3(2), paragraph 1, Page 36, devel- opment of new elementary school facility by temporary or permanent structures. Mr. Hardisty commented on this item saying in the Rancho Laborde Specific Plan five elementary school sites were reserved for develop- ment to serve the area and one high school site was reserved. There is a condition in the plan which limits the amount of development which may occur before construction on the schools begins. The developer, trustee and school district have entered into negotiations which would satisfy the basic concern that schools be provided for the residents and they have come to an agreement to satisfy this. Since the agree- ment has only been entered into between Fruitvale School District and the trustee he recommended that language be substituted for the arrangement between Fruitvale and Rancho Laborde, however until such agreement is also entered into between the Norris School District and the developer the basic requirement not to exceed 20% limit be retained. Public portion of the hearing was opened; no one spoke in opposition. Clifford Bressler, Trustee for Rancho Laborde was present to speak in favor. He stated they have been negotiating with Norris School District and are very close to reaching an agreement. David Cartnal was present representing Fruitvale School District. He said they are quite satisfied with the proposed amendment. Public portion of the hearing was closed. Motion was made by Commissioner Patrick, seconded by Commissioner $arrett to replace Section 12.3(2), Paragraph 7, Page 36 of the Rancho Laborde Specific Plan with Mitigation Agreement dated August 9, 1988 between Fruitvale School District and Clifford E. Bressler, Trustee, for those areas within the Fruitvale School District and recommend same to City Council, but to retain Section 12.3(2), Paragraph 7, Page 36 of the Rancho Laborde Specific Plan for those areas within the Norris School District and recommend same to City Council. Motion carried. TO: )i NOTICE OF DETERMINATION Office of Planning and Research lt, 00 Tenth Street, Room 121 Sacramento, CA 958tt* or X County Clerk -" Cottory of I<ern SUB3BCT: ~,. 2118 TNDORSED FROM: (Public Agency) Bakersfield plannin~ Deuartment 1501 Tru>:tun Ave?.' r Bakersfield, CA ' 93301 Filing of Notice of Determination in compliance with Section 21108 or 21152 of the Public Resources Code. ' .... "' ProjeCt Titie Bancho laborde Annexation State ClearinghOU~ Number Contact Person Telephone Number (II submitted to Clearinghouse) SCH85081901 Barry Hand (B05) 326-3733 pro}ect Location Tnis is the area Generally located North of the Kern P&ver, South of Norris Road, East of Calloway Drive and West of Coffee Road being approy&matelv 3,000 acres. Proiect Desczip~on This is to amend the General Plan, consider a specific plan and initiate annexation of apDroy~/nately 3,000 acres, and qualified as an uninhabited anneYmtion · ThE is to advise that the Bakersfield plannin~ Department · (Lead Agency or Responsible Agency) has approved the above described project and has made the lollowing determinations regarding the above described projecX: 1. The project _- will, ~ will not, have a significant effect on the environment. 2. An Environmental ImpaCt Report was prepared for thi~ pro}eCt pursuant --' to the provisions of CEQA. Z A Negative Declaration was prepared for this proiect pursuant to the provisions of CEQA- The EIR or Negative Declaration and record of project approval may be examined at: Bakersfield Plannino Department 1501 Truxtun Ave. Bakersfield, CA 93301 3. Mizigation ~neasures ~ were, 7, were not, made a condition of the approval of the pro}ect. · #. A statement of Overriding Considerations was, .. this pro ect. Date Received ior Filing ~'- Signature / Title Z was not, adopted for Revised :]anuary 1985 STAFF REPORT PLANNING COMMISSION Meeting of August 18, 1988 AGENDA ITEM # 4 PROJECT: Amendment to Rancho Laborde Specific Plan APPLICANT: Clifford Bressler, Trustee LOCATION: Between Rosedale Highway, Fruitvale Avenue, Norris Road and Calloway Drive PROJECT DESCRIPTION: The applicant is proposing to change language in the text of the specific plan document. The proposed changes relate to the phas- ing of school construction and request that language referred to as a "20% cap" be replaced with an agreement negotiated between the trustee and applicable school district. ENVIRONMENTAL SETTING: The Rancho Laborde Specific Plan is located in northwest metro- politan Bakersfield. The predominate land use inside the spe- cific plan is vacant or agriculture. The site is surrounded by existing and proposed land use as follows: NORTH - Agriculture. WEST Agriculture and large lot residential. SOUTH - Mixture of commercial, residential, utility, and industrial. SOUTHEAST - Mixture of industrial NORTHEAST - Large lot residential. A Negative Declaration was approved for this project on May 7, 1986 as part of the specific plan approval. Staff has determined that the Negative Declaration is sufficient to cover these text amendments. Page 2 Staff Report, P1/C, 8/18/88 Amendment to Rancho Laborde Specific Plan PROJECT ANALYSIS: This amendment was originally scheduled for the April 7, 1988 Planning Commission meeting. Since then the applicant and Fruitvale School District have successfully negotiated an agreement. The proposal is to utilize the attached Mitigation Agreement dated August 9, 1988 between Fruitvale School District and Clifford E. Bressler, Trustee in lieu of language in the spe- cific plan which reads: Amendment C, Section 12.3(2), Paragraph 7, Page 36. Development of new elementary school facility by temporary or permanent structures shall be initi- ated before the number of building permits for res- idential units occupied within that school's service area reaches 20 percent of the projected number of residential units that can be served by that school. Construction above 20 percent will not be allowed until adequate school facilities are made available. The mitigation agreement can be summarized as follows: 1. The applicant transfers fee title for two 12 +/- net acre school sites to the district. The district has an irrevocable option to obtain a third 12 +/- net acre site for a price not to exceed $20,000/net acre plus accrued assessments and interest not later than June 30, 1995. 3. The district is responsible for bond payments, taxes, on site and off site improvements. The district releases the requirement in the specific plan under which the developer is to provide school sites and facilities when 20 percent of the residential building permits are issued. Page 3 Staff Report, Amendment to P1/C, 8/18/88 Rancho Laborde Specific Plan State law was amended after adoption of the specific plan which requires a fee of $1.50 per square foot of residential floor area and $0.25 square feet of commercial floor area be paid to the school district. The school district will utilize these monies to construct the on and off site improvements and facilities on sites donated or sold at below market rate. The applicant is providing the land but is not responsible for school construc- tion. The same number of school sites are being provided as was originally approved. Similar negotiations are being completed with the Norris School District but have not yet reached agreement. A similar amendment will need to be processed whenever the trustee and Norris School District reach agreement. PUBLIC CONTACT: Staff has been contacted by several persons interested in the intent and meaning of the proposed amendment. Staf~ has been regularly updated by both school districts and applicant during the negotiation process. A signed agreement has been submitted by the Fruitvale School District. A draft agreement has been submitted by the Norris School District as evidence of progress. FINDINGS: Staff recommends the following findings be made: The proposed text changes substantially conform to the general plan and are an adequate substitute for language contained in Section 12.3(2), Paragraph 7, Page 36 of the Rancho Laborde Specific Plan; 2. The negative declaration approved May 7, 1986 is sufficient to cover these proposed changes; 3. All required public notices have been given; The Fruitvale School District has submitted a signed mitigation agreement acknowledging their ratification of the specific plan amendment. Page 4 Staff Report, Amendment to P1/C, 8/18/88 Rancho Laborde Specific Plan The findings are based on the following facts: The proposed text changes do not result in an environmental impact and the original negative declaration approved May 7, 1986 is applicable to this proposal. The mitigation agreement dated August 9, 1988 is mutually accepted and binding for the Fruitvale School District and Clifford E. Bressler, Trustee. RECOMMENDED ACTION: Motion to replace Section 12.3(2), Paragraph 7, Page 36 of the Rancho Laborde Specific Plan with Mitigation Agreement dated August 9, 1988 between Fruitvale School District and Clifford E. Bressler, Trustee, for those areas within the Fruitvale School District and recommend same to City Council, but to retain Section 12.3(2), Paragraph 7, Page 36 of the Rancho Laborde Specific Plan for those areas within the Norris School District and recommend same to City Council. FRUITVALE SCHOOL DIS I'RICT -- 2114 Calloway Drive, Bakersfield, California 93312 (805) 589-3830 BOARD OF TRUSTEES JOE DOBITZ President S. C~,AIG HOLLAND Clerk DISTRICT ADMINISTRATION CARL F. OLSEN, ED. D. Superintendent DAN PEELER Director, Curriculum and Instructbin JOHN [~NER TO : FROM : RE : August 10, 1988 ALl6 9 !9a BARRY HAND PRINCIPAL PLANNER CITY OF BAKERSFIELD Ct~Y OF BAKERSFIELD P~.JXN N [NG Dr. PARTM~NT CARL F. OLSEN RANCHO LABORDE MITIGATION AGREEMENT Enclosed is a copy of the Rancho Laborde schools facilities mitigation agreement approved by the Fruitvale School District Board of Trustees on August 9, 1988. This document is the product of negotiations with Clifford Bressler, the trustee for Rancho Laborde, and addresses the issue of the "20% CAP" amendment on the agenda of the Planning Commission's August 18th meeting. The original copies Mr. Bressler for Bank of America. have been forwarded to his signature and that of -- California Distinguished SchooI Awards 1986, 1987 L;~ i Y L;ON ;FiAC'T NO. MITIGATION AGREEMENT 88 -244 I~C'T 1 2 1988. This Agreement is entered into this Nineth day of August, 1988, by and between the Fruitvale School District (hereinafter "DISTRICT") and Clifford E. Bressler, trustee in bankruptcy (hereinafter "TRUSTEE"), on behalf of the Estate of Jean E. C. Laborde and Madonna Laborde. RECITALS A. TRUSTEE is the legal Administrator of approximately 1900-acres of the "property" that is part of a "Specific Plan", approved for development by the City of Bakersfield (Ref: Rancho Laborde Specific Plan, adopted May 7, 1986, by the City of Bakersfield). B. TRUSTEE has been appointed trustee with respect to the Estate of Jean E. C. & Madonna Laborde pending the United States Bankruptcy Court, Eastern District, under Chapter 11 of Title 11 of the United States Code, as Case No. 18400643. ("Trustee" includes any successor designated by the bankruptcy court or other successor or interest.) C. The property is an asset of the Estate to be administered by TRUSTEE, with full power, rights and authority to execute this Agreement, as granted by order of the U.S. Bankruptcy Court; and D. The "Specific Plan" was adopted to provide detailed regulations and controls for the planning, design and development of five (5) elementary schools -- three (3) of which are under the Jurisdiction of the DISTRICT -- to ensure, adequate schools are provided for the surrounding residential neighbors within said "Specific Plan". The Plan additionally provides, as follows: "Development of a new elementary school facility by tem- porary or permanent structures shall be initiated before the number of building permits for residential units occupied within that school's service area reaches twenty percent (20%) of the projected number of residential units that can be served by that school. Construction above twenty percent (20%) will not be allowed until adequate school facilities are made available," (hereinafter sometimes referred to as the "20% CAP"); and E. The specific plan was adopted before enactment of Section 53808 of the Government Code which provides for collection of fees from builder to provide partial mitigation of the impact of new development on schools, which fees are now being collected by the City of Bakersfield for the benefit of DISTRICT. 3 Bond payments and taxes on all property transferred to DISTRICT under this agreement shall be pro-rated to and paid o~ the date of transfer. DISTRICT will reimburse TRUSTEE, or its assigns, for off-site improvements by others for Site #1, in the amount of $83,045 to be paid upon the later of the date of transfer or completion of the off- site improvements. Dlstrlct's Stznature and Date for Full Performance by all Parties. The parties recognize that time is of the essence to the District and the other parties in resolving the matters made the subject of this Mitigation Agreement. The four different acts referred to in Section "l.a" above, should take place in close proximity to each other. Accordingly, the District will immediately sign this Agreement and any other documents as necessary to facilitate the performance by the other parties. However, the District reserves the right to withdraw its consent to this Agreement if Bank of America, the Bankruptcy Court or the Trustee have not performed the acts specified in Section "l.a" above by December 1, 1988. Any notice by the District under this paragraph "2." to the Trustee will be in writing, delivered or sent by first class mail, at the Trustee's address of record. Option on Additional Site. In addition to immediate conveyance of Sites #1 and #2, the parties agree that the District will have an irrevocable option to acquire an additional site the location and configuration of which shall be acceptable to Developer and District. The option applies to a site mutually agreeable to the parties and suitable for school use, of 12 acres net.. This is designated as Site #3. The price shall not exceed $20,000/net acre, plus accrued assessments and interest (10%/annum) on said property, due and payable upon transfer to District. In no case shall District pay more than appraised value at time of transfer. The District must exercise its option to acquire Site #3, not later than June 30, 1995, "Exercise" means written notice to the Trustee or its successor in writing, delivered or mailed prior to June 30, 1995. Failure to exercise the option by June 30, 1995. Failure to exercise the option by June 30, 1995, will result in a lapsation and loss of the option. Off-site Improvements installed bY Developer, in advance of Districts development of Sites #2 or #3, shall be reimbursed to Developer, as they relate to pro-rata share of school sites, at time of school construction by District. 7o 10. 11. Sites Reversionary Clause. DISTRICT agrees to accept title to transferred school sites subject to a reversionary clause granting to TRUSTEE, or his assigns, the option of requiring that title to such site, or portions thereof, shall revert to TRUSTEE in the event permanent school facilities are not constructed upon a site. Upon any such reversion the TRUSTEE shall reimburse DISTRICT for: (i) the original price, if any, of the site, (ti) payment made for off site improvements actually constructed and, (iii) interest on the total reimbursement at the rate of 10% per annum. Site #1: Construction PrioritY. DISTRICT agrees to plan and construct permanent (i.e. non-portable) school facilities on proposed school sites within the "Specific Plan" area, with priority for construction on Site #1 (Hateman Road and Patton Way), to the extent permitted by State laws and regulations. District agrees, u~on execution of this A~reement, to enter into an architectural agreement and commence planning and improvement of school site #1. Azreement Binding on Successors. All of the covenants, stipulations, promises, and agreements contained in this Agreement by or on behalf of, or for the benefit of, any of the parties hereto, shall bind and inure to the benefit of the successors and assigns of the respective parties. Written Agreement: Amendments. This Agreement supersedes any and all other agreements, either oral or in writing, between the parties with respect to the subject matter herein. This Agreement shall be amended only by a written instrument executed by the parties hereto or their successors or assigns. All waivers of this Agreement must be in writing and signed by the appropriate authorities of both parties hereto. Litigation: Forum. In any litigation arising out of the breach of this Agreement by any party, the prevailing party in such litigation, in addition to any other relief which may be granted whether legal or equitable, shall be entitled to recover reasonable attorneys' fees and all other reasonable costs incurred in such litigation and allowed by the court the forum for any such litigation will be the Kern County Superior Court. Construction of Terms: Section Headings. The terms of this Agreement, including all exhibits hereto, shall not be construed for or against any party by reason of the authorship of this Agreement but shall be construed in accordance which the meaning of the language used. The Section headings are for purposes of convenience only, and shall not be construed to limit or extend the meaning of this Agreement. 5 12. Counterpart Signatures. This Agreement may be executed in counterparts, each of which shall be deemed an original. 13. Recordation. The parties agree that a fully executed copy of this Mitigation Agreement shall be recorded on the Official Records of the Kern County Recorder. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written. FRUITVALE SCHOOL DISTRICT / · ,f Clerk, Beard oRTrustees TRUSTEE By ~ '~ ~.~ Cliffdrd E. Bressler APPROVED AS TO FORM AND CONTENT: H. L. Jack Caldwell Schools Legal 'Service Letter Qf Unuer~tandtng Regarding Mitigation ~greemsnt That mitigation agreement dated the ninth day o; August, leg8 by and DetNeen the Fro],vale ~chogl Pistrlct (hersinafter "District") and Clifford E. ~ressler~ trustee ~n Dankruptcy on beha]~ o( the Estate e~ Jean E,C. labor~e and Madonna Laborde, t$ accepted the following ~ndsrst~dtn~s~ Paragraph ~] I~d~gnjl Site That port[on that rea~s "The price shall not e~ceed $~O,000/net ecrm, plu~ accrued assessments an~ interest {10%/annum) on sa~d property, due a~d payshie upon trans,mr to District. In no tess shall District pay more than appraie~ value at tJm~ of transfer.' ~ underatQed t~ read, ~ ~.~,~. . The price shall not exceed t20,OO~n~r~ ~lu~ accrued &ssa.sments and ~nte.est (IOX/annum from th~ ~ate of the t£ans(er of s)tes ~J and ~) on said property, due and ~ayab e upon ~ransfer to District, In no case shall O~strict pay ~ors than appraised ~a~eL value at t,*s o~ ~ran~(ar. ' ' Paragraph #4 O~f-slte ]~prove~eq[s ln~talle~ bz Developer That portion that reads "in advance of DI~tr:cts ~evelopeent of Sites #2 or #~, Shall be reia, burse~ to Developerr a~ they relate ~O pro-rata ~hare of school ~iteSt at t]ee ,n advance of Districts development o~ $~:es ~2 or ~l shall ~e reimbursed to Oeveioper~ as they relate to pro-rata ~hare of schoo] s~tes, at time of Commencement o.~.~ school construction by District. Banks aignature on the Mitigation Agreement is b~n~ing pendino acceptance o¢ th~se Changes by el! the parties :o the Mitigation A~reemsnto ' Date~ APPROVED A5 TO4FORM AND CONTENT M,L. Jack,Caldwell 8chool~ Legal Service - Title EXHIBIT "A" MAP HAG£~AN ROAD 10' PU~UC u'nuTY LAHDSCAP~ [.AS~ EN T PARCEL "C" 30.840 Ac. $ 8g"0~'$2' £ PARCEL 1,.3.000 Ac. Job No. 11834 E:~HIBIT "A" Parcel All that portion of Lot 12 of Tract 4873-A, recorded in Book of Iiap$ at Page 87 in the Office of the Kern County Recorder, bein~ more particularly described as foilotis: 36 ~eginning at a point on the Morth line of said Lot 12, from which peint the ?~orthwest corner thereof bears N89~66'52"~;, 926.76 feet; thence continuing along the i~orth line of said Lot 12, S~9"06'52"E 26~.00 feet and S85~14'47"E, 242.46 feet; thence S0°38'16"W, 791.33 feet; thence H89"06'52 · .,, 852.18 feet; thence M0°3~' "~ 16 ;, 471.00 feet; thence $S9"06'52"~ 341.76 feet; thence ~30~3S'16"E, 324.00 feet to the point of beginning. Containing 13.C00 acres, more or less. RICKETT, W~RD, DEL;4;~,TER & DEIFEL ~" RCE#175o4/~::p. 6/30/89 EXHIBIT "B" PROPOSED MEACHAM ROAD SCHOOL SITE 'ALL THAT PORTION OF PARCELS 8 AND 9 OF' PARCEL MAP NO. 6521 RECORDED SEPTEMBER 15, 1983 IN BOOK 3 OF PARCEL MAPS AT PAGE 6 IN THE OFFICE OF THE COUNTY RECORDER, COUNTY OF KERN, STATE OF CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT A POINT ON THE SOUTH LINE OF SAID PARCEL 8, FROM WHICH THE SOUTHWEST CORNER OF SAID PARCFL ~EARS N. ~B° 54' 11" W., 190.O1 FEET, SAID POINT BEING ON THE CENTERLINE OF MEACHAM ROAD; THENCE N. 0° 28' 15" E., 564.50 FEET; THENCE S. 89° 31' 45" E., 235.00 FEET; THENCE N. 0° 28' 15" E., 260.00 FEET; THENCE S. 89° 31' 45" E., 8.05 FEET; THENCE N. 81° 38' 54" E., 73.12 FEET; THENCE N. 77° 41' 09" E., 73.15 FEET; THENCE N. 70° 53' 05" E., 73.39 FEET; THENCE N. 63° 23' 55" E., 68.72 FEET; ........ THENCE N. 61" 23' O9" E., 19.73 FEET; TH~I:CE S. 28° 36' 51" E., 785.53 FEET TO THE CENTERLINE OF MEACHAM ROAD; THENCE ALONG SAID CENTERLINE S. 61' 23' 09" W., 220.77 FEET TO THE BEGINNING OF A 1,000.00 FOOT RADIUS TANGENT CURVE CONCAVE NORTHERLY; THENCE WESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 29* 42'. 40" : AN ARC DISTANCE OF 518.56 FEET; THENCE N. 88© 54' ll" W., 226.12 FEET TD THE POINT OF BEGINNING. CONTAINS 12. 77 ACRES. EXH1BIT "B" MAP 2 F. The DISTRICT has prepared a Master Plan, which includes three (3) proposed elementary schools within the Specific Plan boundaries; and G. DISTRICT and TRUSTEE acknowledge that TRUSTEE intends to sell said property to a "Master Developer" and/or Merchant Builders who will be bound to the terms and conditions of this Agreement; and H. DISTRICT and TRUSTEE desire to set forth the terms and conditions under which DISTRICT will endeavor to satisfy conditions of the "Specific Plan" relative to constructing permanent (i.e. non-portable) school facilities by the collection of fees and the transfer of school sites under the terms of these agreements; and I. The purpose of this Agreement is to establish a method of providing three (3) school sites for permanent school facilities to be constructed by DISTRICT at time of need; and State time. J. DISTRICT and TRUSTEE acknowledge that the adequacy and timing of school funding is unpredictable and unavailable to DISTRICT at this NOW, therefore, in consideration of the terms and conditions herein set forth, the parties do HEREBY AGREE, as follows: 1. Transfer of School Sites #1 and #2. TRUSTEE agrees to transfer ownership of two (2) school sites (#1 and #2 containing approximately 12-acres net each, as shown on the attached Exhibit-A and B), to DISTRICT and DISTRICT agrees to accept such transfer subject to improvement bonds of record payments on which shall be made by DISTRICT upon such transfer, for the construction of permanent (i.e. non-portable) school facility approvable by the State Department of Education and the Office of the State Architect, in exchange for DISTRICT's release of the 20% "CAP", in the "Specific Plan", for the respective attendance areas surrounding said sites, with the following provisions: Title to site #1 and #2 shall be transferred when all of the following events have occurred: (t) this agreements has been fully executed, (ii) Bank of America has executed and delivered to trustee a deed of partial reconveyance containing the legal description of sites #1 and #2, (ill) the specific plan has been amended by the provisions of this agreement to release the 20% cap requirement, and (iv) an order has been entered by the Federal Bankruptcy Court approving this agreement.